[Federal Register Volume 77, Number 179 (Friday, September 14, 2012)]
[Proposed Rules]
[Pages 56798-56807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22721]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 101108560-2413-01]
RIN 0648-BA43


Fisheries of the Exclusive Economic Zone Off Alaska; Revise 
Maximum Retained Amounts for Groundfish in the Bering Sea and Aleutian 
Islands

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a regulatory amendment to increase the maximum 
retainable amounts (MRAs) of groundfish using arrowtooth flounder 
(Atheresthes stomias) and Kamchatka flounder (Atheresthes evermanni) as 
basis species in the Bering Sea and Aleutian Islands management area 
(BSAI). This action would allow the use of BSAI arrowtooth flounder and 
Kamchatka flounder as basis species for the retention of species closed 
to directed fishing and is necessary to improve retention of otherwise 
marketable groundfish in these BSAI fisheries. This action also 
includes four regulatory amendments related to harvest management of 
Kamchatka flounder.
    Three amendments are necessary to manage Kamchatka flounder in the 
same manner as arrowtooth flounder in the BSAI and to aid in the 
recordkeeping, reporting, and catch accounting of flatfish in the BSAI. 
The fourth amendment is necessary to provide NMFS the flexibility to 
allocate arrowtooth flounder and Kamchatka flounder (and other species 
in the future) to the Western Alaska Community Development Quota (CDQ) 
Program in the annual harvest specifications. Through this proposed 
action, NMFS intends to promote the goals and objectives of the 
Magnuson-Stevens Fishery Conservation and Management Act, the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area, and other applicable law.

DATES: Comments must be received by October 15, 2012.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2012-0044, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal Web site at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2012-
0044 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
the right of that line.
     Mail: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, 
AK 99802-1668.
     Fax: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.
     Hand delivery to the Federal Building: Address written 
comments to Glenn Merrill, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen 
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau, 
AK.
    Comments must be submitted by one of the above methods to ensure 
that the comments are received, documented, and considered by NMFS. 
Comments sent by any other method, to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted for public viewing on www.regulations.gov without 
change. All personal identifying information (e.g., name, address, 
etc.) submitted voluntarily by the sender will be publicly accessible. 
Do not submit confidential business information, or otherwise sensitive 
or protected information. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word 
or Excel, WordPerfect, or Adobe PDF file formats only.
    Electronic copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared 
for this action may be obtained from http://www.regulations.gov or from 
the Alaska Region Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442, or Tom 
Pearson, 907-481-1780.

SUPPLEMENTARY INFORMATION:

[[Page 56799]]

Background

    NMFS manages the groundfish fisheries in the exclusive economic 
zone in the BSAI under the Fishery Management Plan for Groundfish of 
the Bering Sea and Aleutian Islands Management Area (FMP). The North 
Pacific Fishery Management Council (Council) prepared the FMP under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations 
governing U.S. fisheries and implementing the FMP appear at 50 CFR 
parts 600 and 679.
    Regulations at Sec.  679.20(e) and (f), and Table 11 to 50 CFR part 
679 establish MRA percentages for groundfish species and species 
groups. An MRA is the maximum round weight of a species or species 
group closed to directed fishing that may be retained onboard a vessel. 
NMFS established MRAs to allow vessels engaged in fishing for species 
or species groups open to directed fishing (basis species) to retain a 
specified amount of species or species group closed to directed 
fishing. The percent of a species or species group closed to directed 
fishing retained in relation to the basis species must not exceed the 
MRAs listed in Table 11 to 50 CFR part 679.
    MRA percentages serve as a management tool to slow the harvest 
rates and reduce the incentive for targeting species closed to directed 
fishing. MRAs allow for some retention of species closed to directed 
fishing instead of requiring regulatory discards of these species. MRA 
percentages reflect a balance between the recognized need to slow 
harvest rates and minimize the potential for discards, and, in some 
cases, provide an increased opportunity to harvest available total 
allowable catch (TAC) through limited retention.
    The NOAA Office for Law Enforcement or the United States Coast 
Guard may review production data to determine if vessels have complied 
with specified MRAs by comparing the estimated round weight of the 
retained species closed to directed fishing with the estimated round 
weight of the retained basis species. The amount of round weight of 
each retained species must not exceed the MRA, a specified percent, of 
the round weight of a basis species. For example, when Pacific cod is 
open to directed fishing and arrowtooth flounder is closed to directed 
fishing, a vessel operator may retain a round weight equivalent amount 
of arrowtooth flounder of up to 35 percent of the round weight 
equivalent of Pacific cod that is retained onboard the vessel. In this 
example, all incidental catch of arrowtooth flounder in excess of the 
35 percent MRA, from Table 3 to 50 CFR part 679, must be discarded.
    To convert processed weight of groundfish to round weight 
equivalent, NMFS applies product recovery rates (PRRs) from Table 3 to 
50 CFR part 679. Using the example above, during a fishing trip, a 
vessel operator engaged in catching and processing fish at sea during 
an open Pacific cod directed fishery would convert the processed 
weights of arrowtooth flounder and Pacific cod to the respective round 
weight equivalents. The vessel operator and NOAA Office for Law 
Enforcement can then determine if retained catch of arrowtooth flounder 
has exceeded the 35 percent MRA limit found in Table 11 to 50 CFR part 
679, by dividing the retained incidental catch of arrowtooth flounder 
by the retained Pacific cod caught during an open directed fishery and 
converting the proportion to a percentage.
    MRAs provide an increased opportunity to harvest available total 
allowable catch (TAC) through limited targeting activity. A vessel 
operator may have an incentive to target a species closed to directed 
fishing when the vessel operator determines that the retention of a 
species closed to directed fishing is less than or equal to the MRA 
limit specified for that species at Sec.  679.20(e) and (f), and would 
provide economic benefits notwithstanding costs associated with 
finding, processing, and retaining the species closed to directed 
fishing. Prior to 1994, a vessel operator would target low-value basis 
species for the purpose of retaining up to the MRA limit of valuable 
incidental species closed to directed fishing. That led to the waste of 
some basis species for which there was no viable market. In 1994, NMFS 
published an emergency interim rule to prohibit the use of arrowtooth 
flounder as a basis species for the purpose of retaining groundfish 
closed to directed fishing (59 FR 6222, February 10, 1994). At the time 
the emergency rule was published, several vessel operators in the Gulf 
of Alaska (GOA) were deliberately targeting arrowtooth flounder to use 
as a basis species for the retention of highly valued groundfish 
species, such as sablefish, which were closed to directed fishing. 
Because there was no market for arrowtooth flounder, the retained 
arrowtooth flounder was either discarded or made into fish meal. In 
1995, NMFS made this prohibition permanent to prevent vessels from 
wasting arrowtooth flounder as a basis species (60 FR 40304, August 8, 
1995).
    Arrowtooth flounder is now a valuable target fishery, and 
increasing MRAs for species closed to directed fishing when arrowtooth 
flounder is used as a basis species may result in a decrease in 
regulatory discards of the incidentally caught groundfish. For example, 
by 1995, limited markets for arrowtooth flounder had developed in the 
GOA. In 1997, NMFS increased the MRAs for pollock and Pacific cod from 
zero to 5 percent when arrowtooth flounder was the basis species. NMFS 
intended that the increase would reduce regulatory discards and provide 
for more efficient utilization of pollock and Pacific cod caught in the 
arrowtooth flounder fishery (62 FR 11109, March 11, 1997). That action 
reduced both the regulatory discards in the GOA and the number of 
violation notices issued by the NOAA Office for Law Enforcement for 
exceeding the MRAs of pollock and Pacific cod in the arrowtooth 
flounder fishery. On March 27, 2009, NMFS published a final rule in the 
Federal Register (74 FR 13348) to increase MRAs for groundfish caught 
in the GOA arrowtooth flounder fishery from zero to 20 percent for 
deep-water flatfish, rex sole, flathead sole, shallow-water flatfish, 
Atka mackerel, and skates; from zero to 5 percent for aggregated 
rockfish; and from zero to 1 percent for sablefish. These amendments 
also reduced regulatory discards in the GOA arrowtooth flounder 
fishery.
    As in the GOA, the retention of BSAI arrowtooth flounder fishery 
has increased as opportunities to market arrowtooth flounder products 
has expanded. During 2003 to 2010, the TAC for the arrowtooth flounder 
fishery increased from 12,000 metric tons (mt) in 2003, to 75,000 mt in 
2010. Over this same period the total catch of arrowtooth flounder 
increased from 11,916 mt in 2007 to 30,367 mt in 2009, and the percent 
of arrowtooth flounder retained for processing increased from 21 
percent in 2004, to 81 percent in 2010. Consequently, the Council has 
recommended additional management measures to better manage and reduce 
regulatory discards in the BSAI arrowtooth flounder fishery.

MRAs for Groundfish in Arrowtooth Flounder Directed Fishery

    The Council recognized that efforts by the non-pelagic trawl fleet 
to improve retention of groundfish species in the BSAI arrowtooth 
flounder fishery are constrained by the current zero MRAs for 
groundfish for the arrowtooth flounder basis species. In October 2010, 
the Council recommended setting the MRAs for BSAI groundfish using 
arrowtooth flounder as the basis species

[[Page 56800]]

at the same MRA percentages as those set for BSAI groundfish using 
Pacific cod as a basis species with two exceptions (Greenland turbot 
and the ``other species'' group). The EA/RIR/IRFA provided information 
demonstrating that most of the MRAs listed in Table 11 to 50 CFR part 
679 for groundfish caught in the Pacific cod directed fishery would 
represent a conservative guide for managing incidental catch in the 
arrowtooth flounder fishery. MRAs for groundfish species in the Pacific 
cod directed fishery are lower than the MRAs for a number of groundfish 
species that are commonly caught by the non-pelagic trawl fleet in the 
arrowtooth and Kamchatka flounder complex fisheries.
    The Council recommended that the MRAs for Greenland turbot in the 
arrowtooth flounder directed fishery be based on the approximate 
average incidental catch between 2003 and 2009 because average gross 
earnings per pound of retained arrowtooth flounder increased during 
that time. The Council recommended that the MRAs for the aggregated 
``other species'' group (skates, sharks, sculpins, and octopus) caught 
in the arrowtooth flounder fishery also be based on the approximate 
average incidental catch observed between 2003 and 2009. The Council 
intends these MRA modifications to allow vessels fishing in the 
arrowtooth flounder fisheries some retention of incidentally caught 
Greenland turbot and ``other species.'' At the same time, the proposed 
action sets these MRA limits for Greenland turbot at levels that 
minimize impacts on the Greenland turbot directed fisheries and that 
conserve stocks that comprise the ``other species'' group.

Council Action on MRAs and Management of Groundfish in Arrowtooth 
Flounder and Kamchatka Flounder Directed Fisheries

    Prior to 2011, arrowtooth flounder and Kamchatka flounder were 
managed together with a single overfishing level (OFL), acceptable 
biological catch (ABC), and TAC in the BSAI. Arrowtooth flounder and 
Kamchatka flounder are caught at the same time in the non-pelagic trawl 
fishery, and are often difficult to distinguish from each other. 
Throughout most of the BSAI, however, Kamchatka flounder are less 
abundant than arrowtooth flounder. As the directed fishery for 
arrowtooth flounder and market prices for Kamchatka flounder have 
increased, Kamchatka flounder in the arrowtooth flounder fishery has 
been caught in disproportionately greater amounts relative to Kamchatka 
flounder biomass estimates. In 2010, the Council recommended that 
separate OFLs, ABCs, and TACs be established for arrowtooth flounder 
and Kamchatka flounder to protect the stock of Kamchatka flounder (76 
FR 11138, March 1, 2011). Additionally, MRAs established for groundfish 
species closed to directed fishing in the Kamchatka flounder fishery 
will be the same as those set for the species closed to directed 
fishing in the arrowtooth flounder fishery. For prohibited species 
catch (PSC) management purposes and fishing seasons, the Council also 
recommended, and NMFS proposes, that Kamchatka flounder be managed as a 
fishery category with arrowtooth flounder, turbot, and sablefish.

CDQ Allocations for Kamchatka Flounder

    In the final 2007 and 2008 harvest specifications for groundfish of 
the BSAI (72 FR 9451, March 2, 2007), NMFS explained that the term 
``directed fishery'' for purposes of section 305(i)(1) of the Magnuson-
Stevens Act means a fishery for which sufficient TAC exists to to allow 
unlimited retention of that species or species group, and the species 
or species group is economically valuable enough for the CDQ groups to 
target them. In the proposed 2011/2012 and 2012/2013 harvest 
specifications for groundfish of the BSAI (75 FR 76362, December 8, 
2010), NMFS requested comment about whether Kamchatka flounder should 
be considered a directed fishery in the BSAI for purposes of CDQ 
allocations, and specifically whether the CDQ groups intended to 
conduct directed fishing for Kamchatka flounder in the future. NMFS 
received comments from all six of the CDQ groups that they did not 
intend to conduct directed fishing for Kamchatka flounder in 2011, but 
that economic conditions may change in the future in a manner that may 
make it appropriate for NMFS to allocate Kamchatka flounder to the CDQ 
Program. Therefore, in the final 2011 and 2012 harvest specifications 
for groundfish of the BSAI (76 FR 11139, March 1, 2011), NMFS did not 
allocate a portion of the Kamchatka flounder TAC to the CDQ Program.

Council Review of Draft Regulations To Combine Arrowtooth Flounder and 
Kamchatka Flounder Management Measures

    In June 2011, NMFS provided the Council a review of the proposed 
regulatory revisions described below for MRAs associated with the 
arrowtooth flounder and Kamchatka flounder directed fisheries, as well 
as the management, recordkeeping, reporting, and catch accounting of 
arrowtooth flounder and Kamchatka flounder. The Council concurred in 
NMFS' determination that the proposed regulatory provisions to combine 
many of the management measures for arrowtooth flounder and Kamchatka 
flounder are necessary for the management of these species. With the 
exception of establishing separate OFLs, ABC, and TACs, the Council 
intends that Kamchatka flounder be managed in the same manner as 
arrowtooth flounder.

Proposed Regulatory Amendments

Revisions to MRA Regulations

    This proposed rule would revise Table 11 to 50 CFR part 679 to 
increase the MRAs for groundfish species and species groups closed to 
directed fishing using arrowtooth flounder as the basis species from 
zero percent to 20 percent for pollock, Pacific cod, Atka mackerel, 
Alaska plaice, yellowfin sole, other flatfish, rock sole, flathead 
sole, and squid; from zero percent to 7 percent for Greenland turbot; 
from zero percent to 1 percent for sablefish; from zero percent to 2 
percent for shortraker rockfish and rougheye rockfish (combined); from 
zero percent to 5 percent for aggregated rockfish; zero percent to 7 
percent for Greenland turbot; and zero percent to 3 percent for the 
``other species'' group.
    Through this proposed action, NMFS would revise Table 11 to 50 CFR 
part 679 to manage MRAs associated with the arrowtooth flounder and 
Kamchatka flounder directed fisheries in close coordination. This 
proposed rule would also revise Table 11 to eliminate language that is 
no longer relevant because of revisions implemented through prior 
actions. NMFS proposes to move Kamchatka flounder from ``other 
flatfish'' to the arrowtooth flounder category in Table 11 to 50 CFR 
part 679. NMFS would revise Footnote 2 to Table 11, to include 
Kamchatka flounder to further clarify that Kamchatka flounder is not 
included with ``other flatfish.'' NMFS would revise footnote 4, which 
defines ``other species,'' to remove the sentence ``Forage fish, as 
defined at Table 2c to this part are not included in the `other 
species' category.'' This revision would eliminate an unnecessary 
clarification because capelin, eulachon, and smelt were removed from 
``other species'' category and placed in a forage fish species category 
in 1998 (63 FR 13009, March 17, 1998). This proposed amendment would 
eliminate a potential source of confusion for the entities that

[[Page 56801]]

would be subject to this rule and required to use the revised Table 11 
to comply with groundfish MRAs.
    NMFS proposes that if either arrowtooth flounder or Kamchatka 
flounder closes to directed fishing then neither arrowtooth flounder 
nor Kamchatka flounder could be used as a basis species for the 
retention of groundfish in the BSAI. This revision is necessary because 
it is difficult to distinguish between arrowtooth flounder and 
Kamchatka flounder once the two species are processed. Without 
distinguishing catch between these two species, the fishing industry 
would not be able to comply with the application of different MRA 
percentages for incidental catch of arrowtooth flounder or Kamchatka 
flounder when only one of these species is open to directed fishing. In 
addition, footnote 9 would be added to Table 11 to clarify that when 
arrowtooth flounder and Kamchatka flounder are closed to directed 
fishing and caught incidentally in other directed groundfish fisheries, 
vessel compliance with MRA limits specified for these species would be 
calculated as the aggregate retained incidental catch of both 
arrowtooth flounder and Kamchatka flounder.

Management Measures

    Four additional regulatory amendments are proposed to provide for 
the identical MRA, PSC, and harvest management measures for arrowtooth 
flounder and Kamchatka flounder. These amendments are necessary to 
facilitate recordkeeping, reporting, and catch accounting of arrowtooth 
flounder and Kamchatka flounder and would ensure consistent timing of 
the harvest of these two species.
    The first amendment would revise Sec.  679.21(e)(3)(iv)(C) to 
include Kamchatka flounder in the same trawl fishery category for PSC 
management as arrowtooth flounder. Currently, Greenland turbot, 
arrowtooth flounder, and sablefish are in the same trawl fishery 
category for purposes of applying PSC limits. This revision is 
necessary because arrowtooth flounder and Kamchatka flounder are 
harvested in a mixed groundfish fishery and typically encounter similar 
PSC species.
    The second amendment would establish identical seasonal opening 
dates for arrowtooth flounder and Kamchatka flounder, and is necessary 
to manage the Kamchatka flounder fishery in the same time period as the 
arrowtooth flounder fishery. Arrowtooth and Kamchatka flounder have 
historically been managed together because they are mixed-stock species 
and are often targeted together. Initiating the fishing season for 
these two species on different dates would cause significant management 
difficulties and therefore NMFS recommends concurrent seasonal 
management. NMFS would revise the BSAI groundfish seasons at Sec.  
679.23(e)(1) to include Kamchatka flounder with arrowtooth flounder and 
Greenland turbot so that the season for all these species would open on 
May 1.
    The third amendment would revise Table 3 to 50 CFR part 679, which 
lists the product recovery rates (PRR) for groundfish species and 
conversion rates for Pacific halibut. These revisions would consolidate 
the eight flatfish species (including Kamchatka flounder) in Table 3 to 
50 CFR part 679 into a single row, and apply identical PRRs to these 
eight flatfish species. This consolidation of flatfish into one row 
would simplify Table 3 and is necessary to facilitate recordkeeping, 
reporting, and MRA determination. Currently, identical PRRs are listed 
in Table 3 to 50 CFR part 679 for these eight individual species of 
flatfish, with the exception of yellowfin sole, which is also listed as 
having a PRR for surimi. NMFS proposes to establish one surimi PRR for 
all the species within the consolidated flatfish category because the 
similar morphology of the species within this category is likely to 
produce a similar proportion of utilized surimi product. NMFS proposes 
to use the surimi PRR currently listed for yellowfin sole for the 
consolidated flatfish category. If the consolidated flatfish category 
was not assigned a PRR for surimi, compliance with MRAs could not be 
determined for this product form.
    The fourth amendment would revise Sec.  679.20(b)(1)(ii) to explain 
how NMFS will determine whether to allocate a portion of a new TAC 
category to the CDQ Program in the annual harvest specifications. NMFS 
implemented the current regulations Sec.  679.20(b)(1)(ii) in the final 
rule for Amendment 80 to the FMP (72 FR 52668, September 14, 2007). 
These regulations state that if the groundfish harvest specifications 
change a TAC category allocated to a CDQ reserve by combining or 
splitting a species, species group, or management area, then the same 
percentage of the TAC apportioned to a CDQ reserve in Sec.  679.20 
(b)(1)(ii)(A) through (D) will apply to the new TAC category. However, 
section 305(i)(1)(B)(ii)(II) of the Magnuson-Stevens Act addresses 
allocations to the CDQ Program and provides more specific guidance, 
namely, ``the allocation under the (CDQ) program in any directed 
fishery of the Bering Sea and Aleutian Islands (other than a fishery 
for halibut, sablefish, pollock, and crab) established after the date 
of enactment of this subclause shall be a total allocation (directed 
and nontarget combined) of 10.7 percent.''
    The creation of a new TAC category for Kamchatka flounder required 
NMFS, in the final 2011 and 2012 harvest specifications for groundfish 
of the BSAI (76 FR 11139, March 1, 2011), to determine if Kamchatka 
flounder was a ``directed fishery'' for purposes of the CDQ Program. If 
NMFS determined it was a directed fishery, 10.7 percent of the 
Kamchatka flounder TAC would be allocated to the CDQ Program. As 
described in more detail in the final 2011 and 2012 harvest 
specifications, NMFS determined that Kamchatka flounder was not a 
``directed fishery'' for purposes of the CDQ Program. This proposed 
rule would amend Sec.  679.20(b)(1)(ii) to explain how this 
determination will be made in future harvest specifications should new 
TAC categories be created.
    Specifically, NMFS proposes to revise regulations at Sec.  
679.20(b)(1)(ii)(D) and remove regulations at Sec.  679.20(b)(1)(ii)(E) 
that govern CDQ allocations for TAC categories that are established 
when one species or species group is split from an existing species or 
species group to form a new TAC category. Paragraph (D)(2) would be 
added to Sec.  679.20(b)(1)(ii) to state that, for all other groundfish 
species not specifically listed in Sec.  679.20(b)(1)(ii)(A) through 
(D)(1), an amount equal to 10.7 percent of the BSAI TAC would be 
apportioned to a CDQ reserve if NMFS, after consultation with the 
Council, determines in the annual harvest specifications that a 
directed fishery in the BSAI exists for this species under section 
305(i)(1)(B)(i) of the Magnuson-Stevens Act. The species specifically 
allocated to the CDQ Program in 50 CFR part 679 are pollock, sablefish, 
the ``Amendment 80'' species (Aleutian Islands Pacific ocean perch, 
Pacific cod, Atka mackerel, yellowfin sole, rock sole, and flathead 
sole), Bering Sea Greenland turbot, and arrowtooth flounder. In making 
a determination that a directed fishery exists in the BSAI, the Council 
and NMFS would consider whether sufficient TAC exists to open a 
directed fishery for that species in the BSAI and if the CDQ groups are 
likely to conduct directed fishing for that species. The 10.7 percent 
amount for Kamchatka flounder under Sec.  679.20(b)(1)(ii)(D)(2) is the 
same as the 10.7 percent amount for arrowtooth flounder under Sec.  
679.20(b)(1)(ii)(D)(1), consistent with the Council's intent for 
similar management of the two species.

[[Page 56802]]

Classification

    Pursuant to section 304 (b)(1)(A) and 305 (d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this 
proposed rule is consistent with the FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A summary of the analysis follows. A copy of 
this analysis is available from NMFS (see ADDRESSES).
    Using earnings from all Alaska fisheries in 2009, there are 254 
catcher vessels directly regulated by this action that had gross 
earnings less than $4.0 million, thus categorizing them as small 
entities based on the threshold that the Small Business Administration 
uses to define small fishing entities. For catcher/processors, 18 
vessels had gross earnings less than $4 million, categorizing them as 
small entities. The preferred alternative also affects the six CDQ 
groups because it would revise regulations governing how allocations 
are made to the CDQ Program of TAC categories established by splitting 
existing quota categories, as has occurred with arrowtooth flounder and 
Kamchatka flounder. Due to their status as non-profit corporations, the 
CDQ groups are also considered to be small entities under the RFA.
    The Council evaluated three alternatives and three suboptions to 
increase the MRAs of groundfish in the arrowtooth flounder fishery in 
the BSAI. Alternative 1, the status quo or no action alternative, would 
leave the MRAs for groundfish in the BSAI arrowtooth flounder fishery 
unchanged from current levels, and would continue to require fishermen 
to discard otherwise marketable groundfish.
    Alternative 2 would set the MRAs for groundfish using arrowtooth 
flounder as a basis species at the same MRA levels for groundfish using 
Pacific cod as a basis species, with two suboptions to modify the 
Greenland turbot MRA at 15 percent or 7 percent, and one suboption to 
modify the ``other species'' group MRA to 3 percent.
    Alternative 3 would set the MRAs for groundfish using arrowtooth 
flounder as a basis species at the same MRA levels for groundfish using 
flathead sole as a basis species. The Council also considered a 
suboption to Alternative 3 to set the MRA for Greenland turbot using 
arrowtooth flounder as a basis species to 15 percent.
    To provide the opportunity to the arrowtooth flounder trawl fishing 
industry to reduce discards by allowing increased retention of 
groundfish, the Council recommended Alternative 2 as the preferred 
alternative, with suboptions 2.2 and 2.3 for Greenland turbot and the 
``other species'' group. Alternative 2, combined with suboptions 2.2, 
and 2.3, would increase MRAs of groundfish closed to directed fishing 
for arrowtooth flounder as the basis species from zero percent to 20 
percent for pollock, Pacific cod, Atka mackerel, Alaska plaice, 
yellowfin sole, other flatfish, rock sole, flathead sole, and squid; 
from zero percent to 7 percent for Greenland turbot; from zero percent 
to 1 percent for sablefish; from zero percent to 2 percent for 
shortraker and rougheye rockfish (combined); from zero percent to 5 
percent for aggregated rockfish; and from zero percent to 3 percent for 
the ``other species'' group (consisting of skates, sharks, sculpins, 
and octopus in the aggregate). The Council recommended that the MRAs 
for Greenland turbot and aggregated ``other species'' be based on the 
approximate average incidental catch observed in the arrowtooth 
flounder fishery between 2003 and 2009. For Greenland turbot, an MRA of 
7 percent would allow for increased retention of Greenland turbot for 
arrowtooth flounder as the basis species, when Greenland turbot is 
closed to directed fishing. Suboption 2.2 also would provide a more 
conservative MRA for Greenland turbot than suboption 2.1. Suboption 
2.1, an MRA of 15 percent, would allow increased retention of Greenland 
turbot for arrowtooth flounder as the basis species. Constraining the 
MRA for Greenland turbot to 7 percent instead of 15 percent may reduce 
the amount of incidentally caught Greenland turbot in the Amendment 80 
sector directed fishery for arrowtooth flounder, allowing for a greater 
amount of Greenland turbot to be available for small entities in the 
longline fishery. The longline fishery relies on access to the 
Greenland turbot directed fishery. Suboption 2.3 would conserve the 
stocks that comprise the ``other species'' group while allowing for 
some retained catch of these species in the arrowtooth flounder fishery 
when the species that comprise the ``other species'' group are closed 
to directed fishing.
    Alternative 3 would increase the MRAs of groundfish closed to 
directed fishing for arrowtooth flounder as the basis species from zero 
percent to 20 percent for pollock, Pacific cod, Atka mackerel, squid, 
and for the ``other species'' group (skates, sharks, sculpins, and 
octopus in the aggregate); from zero percent to 35 percent for Alaska 
plaice, yellowfin sole, other flatfish, flathead sole, and Greenland 
turbot; from zero percent to 15 percent for sablefish and aggregated 
rockfish; and from zero percent to 7 percent for shortraker and 
rougheye rockfish (combined).
    Under Alternative 3, the Council recognized a greater potential for 
development of fisheries that could increase harvests of species and 
adversely impact the ability of NMFS to effectively manage several 
groundfish species within the TAC, and therefore did not recommend this 
alternative. In general, the development of a fishery is dependent upon 
a number of factors, including, but not limited to, the price of the 
MRA species, whether a market exists, accessibility of the species, 
storage availability, and processing capacity. In addition, the 
potential for a vessel to harvest a specific species varies across 
vessels. A vessel operator has more discretion to harvest specific 
groundfish species if the operator has the ability to limit incidental 
catch or the ability to discard low-valued fish, while targeting 
arrowtooth flounder.
    Alternatives 2 and 3 would be beneficial to the affected small 
entities by providing an opportunity to retain additional, economically 
valuable groundfish species when arrowtooth flounder is a basis 
species. Under Alternative 2, the benefits to small entities would be 
slightly lower than under Alternative 3. However, Alternative 2 with 
suboptions 2.2 and 2.3 (the preferred alternative), that sets the MRA 
for Greenland turbot at 7 percent and the MRA for the species that 
comprise the ``other species'' group at 3 percent, reduces unintended 
impacts to the Greenland turbot directed fishery more effectively and 
provides greater protection for the species which comprise the ``other 
species'' group than does Alternative 3. Allowing a greater amount of 
Greenland turbot retained catch under Alternative 3 may result in 
earlier closure of the Greenland turbot directed fishery, as compared 
with Alternative 2 with suboption 2.2. No negative impacts on small 
entities are associated with either Alternative 2 or 3.

[[Page 56803]]

    Should the preferred alternative be implemented, the four 
additional amendments to the regulations proposed by NMFS are 
necessary. The purposes of these proposed amendments are: to provide 
management measures for Kamchatka flounder that are identical to those 
for arrowtooth flounder; to prevent the Kamchatka flounder fishery from 
having negative impacts on the arrowtooth flounder and Greenland turbot 
directed fisheries; to facilitate recordkeeping, reporting, and catch 
accounting of Kamchatka flounder as well as other flatfish species and 
species groups; and to provide the Council and NMFS greater flexibility 
in the annual harvest specifications process to allocate TAC (for such 
species as Kamchatka flounder) to the CDQ Program in the future. These 
proposed revised regulatory amendments are included in this proposed 
rule as they address the Council's intent to manage Kamchatka flounder 
with separate harvest specifications with the same management measures 
that apply to arrowtooth flounder because of the close association of 
these two species in the groundfish fisheries.
    No negative impacts on small entities are associated with these 
proposed regulatory amendments. Participants in the Amendment 80 sector 
are the primary entities that would be affected by this proposed action 
since only Amendment 80 sector operators have developed markets for 
arrowtooth flounder and Kamchatka flounder and have expressed interest 
in retaining these two groundfish species. These two species have 
become sufficiently important to some vessels in this sector so NMFS 
does not anticipate the catch rates and amounts of arrowtooth flounder 
and Kamchatka flounder would change under the preferred alternative to 
amend the MRAs for groundfish caught in the target fisheries. Thus, 
NMFS has no expectation that fishing location or intensity will be 
altered by the small increases in MRAs for incidental catch of 
groundfish in the directed fisheries of these two species. The primary 
effect of this action would be to reduce the amount of discarded 
groundfish catch. Small entities are unlikely to be disadvantaged by 
the opportunity to retain valuable incidental catch that would 
otherwise be discarded and made unavailable to sell as a marketable 
product.
    This proposed rule contains no additional collection-of-information 
requirements subject to review and approval by OMB under the Paperwork 
Reduction Act.
    The analysis did not reveal any Federal rules that duplicate, 
overlap, or conflict with the proposed action.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: September 11, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447.

    2. In Sec.  679.20, remove paragraph (b)(1)(ii)(E) and revise 
paragraph (b)(1)(ii)(D) to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (D) CDQ reserves for other groundfish species. (1) An amount equal 
to 10.7 percent of the BSAI TACs for Bering Sea Greenland turbot and 
arrowtooth flounder, and 7.5 percent of the trawl gear allocation of 
sablefish in the BS and AI is apportioned from the nonspecified reserve 
established under paragraph (b)(1)(i) of this section to a CDQ reserve 
for each of these species by management area, subarea, or district.
    (2) For all other groundfish species not specifically listed in 
paragraphs (b)(1)(ii)(A) through (D)(1) of this section, an amount 
equal to 10.7 percent of the BSAI TAC will be apportioned to a CDQ 
reserve if NMFS, after consultation with the Council, determines in the 
annual harvest specifications process under paragraph (c) of this 
section that a directed fishery in the BSAI exists for this species 
under section 305(i)(1)(B)(i) of the Magnuson-Stevens Act. In making 
this determination, the Council and NMFS shall consider whether 
sufficient TAC exists to open a directed fishery for that species in 
the BSAI and if the CDQ groups are likely to conduct a directed fishery 
for that species.
* * * * *
    3. In Sec.  679.21, revise paragraph (e)(3)(iv)(C) to read as 
follows:


Sec.  679.21  Prohibited species bycatch management.

* * * * *
    (e) * * *
    (3) * * *
    (iv) * * *
    (C) Greenland turbot/arrowtooth flounder/Kamchatka flounder/
sablefish fishery. Fishing with trawl gear during any weekly reporting 
period that results in a retained aggregate amount of Greenland turbot, 
arrowtooth flounder, Kamchatka flounder, and sablefish that is greater 
than the retained amount of any other fishery category defined under 
this paragraph (e)(3)(iv).
* * * * *
    4. In Sec.  679.23, revise paragraph (e)(1) to read as follows:


Sec.  679.23  Seasons.

* * * * *
    (e) * * *
    (1) Directed fishing for arrowtooth flounder, Kamchatka flounder, 
and Greenland turbot. Directed fishing for arrowtooth flounder, 
Kamchatka flounder, and Greenland turbot in the BSAI is authorized from 
1200 hours, A.l.t., May 1 through 2400 hours, A.l.t., December 31, 
subject to the other provisions of this part.
* * * * *
    5. Revise Table 3 to 50 CFR part 679 to read as follows:
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    6. Revise Table 11 to 50 CFR part 679 to read as follows:

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[FR Doc. 2012-22721 Filed 9-13-12; 8:45 am]
BILLING CODE 3510-22-C