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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 679
          - [Docket No. 040106005-4316-02; I.D. 121603C]
          - RIN 0648 AP73

# AGENCY:

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

# ACTION:

Final rule.

# SUMMARY:

NMFS issues a final rule that requires the operator of a federally permitted catcher vessel using hook-and-line or jig gear in the Southeast Outside District (SEO) of the Gulf of Alaska (GOA) to retain and land all demersal shelf rockfish (DSR) caught while fishing for groundfish or for Pacific halibut under the Individual Fishing Quota (IFQ) program. This action is necessary to improve estimates of fishing mortality of DSR. This final rule is intended to further the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).

# DATES:

Effective December 23, 2004.

# ADDRESSES:

                        Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and the Final Regulatory Flexibility Analysis (FRFA) prepared for this action may be obtained from the Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall, by calling the Alaska Region, NMFS, at 907-586-7228, or from the Alaska Region, NMFS website at                         *www.fakr.noaa.gov*.                    

Send comments on collection-of-information requirements to NMFS, Alaska Region, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington D.C. 20503 (Attn: NOAA Desk Officer).

# FOR FURTHER INFORMATION CONTACT:

                        Tom Pearson, 907-481-1780 or                         *tom.pearson@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

                    The groundfish fisheries in the exclusive economic zone (EEZ) of the GOA are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the authority of the 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.                

## Background

                    One of the species groups managed under the FMP is DSR, an assemblage of seven rockfish species: Canary rockfish (                    *Sebastes pinniger*), China rockfish (                    *S. nebulosus*), copper rockfish (                    *S. caurinus*), quillback rockfish (                    *S. maliger*), rosethorn rockfish (                    *S. helvomaculatus*), tiger rockfish (                    *S. nigrocinctus*), and yelloweye rockfish (                    *S. ruberrimus*).                

                    The State of Alaska (State) manages all fisheries occurring within State waters, i.e., within three nautical miles of Alaska's coastline. The FMP defers to the State some management responsibility for the DSR fishery in the SEO, subject to Council and Federal oversight. The State management regime must be consistent with the goals of the FMP. Commercial harvests of DSR are managed within the total allowable catch (TAC) specified annually by NMFS in consultation with the Council. NMFS published the DSR TAC for 2004 in the                     **Federal Register**                     on February 27, 2004 (69 FR 9261).                

Existing State regulations for DSR establish fishing seasons (5 AAC 28.111(a)) and gear restrictions (5 AAC 28.130), set harvest guidelines for directed DSR fishing based on the TAC (5 AAC 28.160), and limit the amount of DSR that can be retained as bait (5 AAC 28.190). Also, the State has a full retention requirement for DSR caught in State waters (5 AAC 28.171). The Council and NMFS establish the annual TAC for DSR (see 50 CFR 679.20), regulate the catch of prohibited species in the DSR directed fishery (see 50 CFR 679.21), set recordkeeping and reporting requirements (see 50 CFR 679.5), and impose a maximum retention requirement for DSR caught incidentally in Federal fisheries (see 50 CFR 679.20(d)-(e); Table 10 to part 679).

## Need for Action

                    The existing management background and explanation of the need for this action were described in the preamble to the proposed rule published in the                     **Federal Register**                     on January 21, 2004 (69 FR 2875).  The Council and NMFS have designed this action to achieve the following four objectives:                

                    1. Improve data collection on the incidental catch of DSR in the halibut and groundfish hook-and-line fisheries                           ( print page 68096)                        in the SEO to more accurately estimate DSR fishing mortality, improve DSR stock assessments, and evaluate whether current maximum retainable amounts (MRAs) are the appropriate levels for DSR in the SEO;                

2. Minimize waste to the extent practicable;

3. Avoid increasing incentives either to target DSR or to discard DSR that is caught in excess of the amount that can legally be sold for profit; and

4. Maintain a consistent approach within State and Federal regulations that govern the retention and disposition of DSR.

The preamble to the proposed rule (January 21, 2004, 69 FR 2875) contains additional explanation as to how this action will achieve these objectives.

## Elements of this Rule

This rule has two main provisions that are added as paragraph (j) to § 679.20. The first provision addresses retention and landing requirements. The operator of a federally-permitted catcher vessel using hook-and-line or jig gear is required to retain and land all DSR that is caught while fishing for groundfish or IFQ halibut in the SEO. Landed fish must be reported under Federal and State regulations.

The second provision addresses disposal of retained amounts of DSR. Under this rule, a fisherman is limited to selling an amount of retained DSR that is no more than 10 percent of the aggregate round weight equivalent of IFQ halibut and groundfish, other than IFQ sablefish, that he or she retained onboard the vessel. For IFQ sablefish, a fisherman is limited to selling an amount of retained DSR that is no more than 1 percent of the aggregate round weight equivalent of IFQ sablefish he or she retained onboard the vessel. Fishermen could use amounts of retained DSR in excess of these sale limits for other purposes, including personal consumption or donation, but amounts of DSR in excess of the sale limits are prohibited from entering commerce through sale, barter, or trade.

Additionally, the MRA table for the GOA groundfish fisheries (Table 10 to 50 CFR part 679) is amended to remove the DSR MRA for catcher vessels in the SEO.  A footnote is added to the DSR entry cross referencing the requirements specified in § 679.20(j).

## Response to Comments

NMFS solicited public comments on the proposed rule (January 21, 2004, 69 FR 2875) through February 20, 2004.  One letter containing six separate comments was received during this comment period. The comments are summarized and responded to below.

*Comment 1:*                     NMFS is overemphasizing the collection of fisheries information and neglecting the value of marine sanctuaries to re-establish fish populations. No marine sanctuaries have been created which should be an immediate first priority.                

*Response:*                     The primary purpose of this regulatory amendment is not to re-establish DSR populations, but to improve information on the incidental catch of these rockfish species while not increasing incentives to either target or discard them. NMFS has no data that indicate DSR is overfished or that overfishing is occurring, hence, no need is apparent to re-establish DSR populations. In addition, areas of the GOA have been closed to fishing for conservation purposes, such as the Sitka Pinnacles Marine Reserve. This and other closed areas are specified in the groundfish regulations at § 679.22(b). The January 2004 draft environmental impact statement (EIS) for essential fish habitat discusses the effects of fishing on sensitive habitat features and evaluates a range of options for minimizing adverse effects, such as closing areas of rockfish habitat to bottom trawling. Further information on the draft EIS may be found at the NMFS Alaska Region website at                     *www.fakr.noaa.gov*.                

*Comment 2:*                     Days at sea should be cut by 50 percent this year, and cut by 10 percent each year thereafter. It is time to prevent overfishing that is obviously going on.                

*Response:*                     NMFS has identified no overfished stocks in the SEO District, or in the GOA as a whole, and has seen no evidence of overfishing of groundfish in this area. A reduction in days at sea is a management tool that has been used in other areas of the United States. In Alaska, however, NMFS has found that strict adherence to managing harvests at or below TAC levels makes the use of such a management tool unnecessary.                

*Comment 3:*                     The use of hook-and-line gear to target Pacific halibut should be prohibited. Enforcement is practically non-existent. When fishermen are found in violation of the halibut fishery regulations, their fishing privileges should be permanently revoked.                

*Response:*                     As part of an international agreement between the U.S. and Canada, hook-and-line gear is the only gear type authorized for use in the commercial harvest of halibut. Prohibiting its use would, in effect, close the commercial fishery for halibut. Enforcement of the halibut fishing regulations is conducted by NMFS Office of Enforcement and the U.S. Coast Guard, and compliance with these regulations is considered acceptable. The Office of Enforcement examines each violation of the fisheries regulations on a case by case basis. Penalties for violations can range from a written warning to the revocation of fishing privileges, forfeiture of fishing vessels, fines, and imprisonment.                

*Comment 4:*                     NMFS, to the detriment of the American public, is too slow to react to problems. NMFS has taken no action to address issues raised since 1996 and nothing has been done about overfishing issues and anti-environmental actions.                

*Response:*                     The groundfish fisheries in the GOA and off Alaska generally are among the best managed and most sustainable fisheries in the world. None of the groundfish stocks off Alaska are overfished or experiencing rates of harvest that are causing overfishing. Working closely with the Council since 1996, NMFS has implemented more than 25 amendments to the FMP which have led to improvements in the conservation and management of the GOA groundfish fisheries. In considering any FMP or regulatory change, the Council and NMFS carefully consider a broad range of alternatives to address biological, environmental, and economic concerns. Preparation of these analyses and receiving public comment on them may take a period of months or years, but this is done to assure that fishery management programs are well justified and in compliance with all applicable law.                

*Comment 5:*                     Fishery quotas should be cut by 50 percent this year and by 10 percent each year thereafter. Too many vessels are allowed to fish; government agencies act as if fisheries resources are infinite, when they are not.                

*Response:*                     Fishery quotas or TACs are based upon the best scientific information available which is reviewed annually by the Council, its committees and NMFS. The Council often sets TACs at levels below the Acceptable Biological Catch (ABC) levels in response to social, economic, and environmental concerns. The establishment of TACs on an annual basis is implicit recognition that fisheries resources are not infinite. Additionally, the Council has recommended and NMFS has implemented several programs to reduce the number of vessels participating in the groundfish fisheries of Alaska, including the groundfish and crab License Limitation Program, the pollock fishing co-operatives under the American Fisheries Act, and the IFQ program for the halibut and sablefish fisheries. Development of management                           ( print page 68097)                        programs to rationalize fisheries or provide market-based incentives to reduce excessive fishing capital currently is underway in the Bering Sea crab fisheries and the GOA groundfish fisheries.                

*Comment 6:*                     Once DSR are caught, they should be consumed. Markets could be found. The best ways to save fish stocks are to reduce quotas and to reduce fishing vessel days at sea. Fishermen found in violation of fishery regulations should have their vessels confiscated and fishing privileges permanently revoked.                

*Response:*                     This final rule will require an operator of a federally permitted catcher vessel using hook-and-line or jig gear in the SEO to retain and land all DSR caught while fishing for groundfish or for Pacific halibut under the IFQ program in the SEO. Amounts of DSR species landed that are in excess of the maximum amount that may be sold may not enter commerce, but may be retained for personal consumption or donation to charity. Responses to concerns about conservation of fish stocks are given in the responses to comments 2 and 5. See the response to comment 3 regarding fisheries enforcement.                

## Changes from the Proposed Rule

No substantive changes are made in this final rule from the proposed rule. The headings of paragraphs at § 679.20(j)(2)(i), (j)(2)(ii), and (j)(2)(iii) are removed, however, to simplify the regulatory text.

To reflect the changes made by Amendment 63 to the FMP, Table 10 in the final rule is changed from Table 10 in the proposed rule. Amendment 63 separated skates from the “other species” category to the target species category to allow for management of skates as a separate target species. The final rule for Amendment 63 was published May 12, 2004 (69 FR 26313). Because the proposed rule for DSR retention (January 21, 2004, 69 FR 2875) was published before the final rule for Amendment 63, the proposed rule for DSR did not include the changes to Table 10 that became effective with the final rule for Amendment 63. To ensure this final rule for DSR reflects changes made to Table 10 by the final rule for Amendment 63, Table 10 in the DSR final rule is changed from the DSR proposed rule to include the separation of skates from the “other species” category.

A typographical error in Table 10 is also corrected by this final rule. A “na9” is added to the cell at the intersection of the sablefish column and row. This addition shows that the incidental catch of sablefish in the sablefish directed fishery is not applicable.

## Classification

This final rule has been determined to be not significant for purposes of Executive Order 12866.

                    NMFS prepared a FRFA which incorporates the IRFA and a summary of the analyses completed to support the action. Copies of these analyses are available from NMFS (see                     **ADDRESSES**                    ). The FRFA did not reveal any Federal rules that duplicate, overlap, or conflict with the action. The following summarizes the FRFA.                

### Need for and Objectives of the Rule

                    A description of the need for and objectives of this action is contained in the preamble to the proposed rule published in the                     **Federal Register**                     on January 21, 2004 (69 FR 2875), and in the preamble of this final rule.                

### Summary of Significant Issues Raised in Public Comment

No comments were received specifically on the IRFA. Several comments were received on the proposed rule that were largely irrelevant to the action, and none focused on the potential economic impacts of the action.

### Description and Estimate of Number of Small Entities to Which the Rule Will Apply

The directly regulated entities are those vessels taking DSR as incidental catch in halibut and groundfish fisheries in Federal waters of the SEO district and the processors buying the DSR from them. NMFS estimates that 423 vessels participated in these fisheries in 2000. Most of these vessels were less than 60 feet (18.3 m) in length, fishing with hook-and-line gear and jig gear. Average gross revenues for these vessels from the Alaskan halibut and groundfish fisheries were about $262,000. Average gross revenues from all fisheries for these entities are undoubtedly higher, because these vessels participate in other fisheries in Alaska. In the years from 1996 to 2001, between 17 and 26 plants bought groundfish in Southeast Alaska. In 2000, the average gross revenues for these plants were about $12 million. NMFS estimates that these fishing and processing operations were all “small entities” within the meaning of the Regulatory Flexibility Act.

### Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

This rule will impose no new recordkeeping requirements on regulated entities. NMFS has not been able to identify any relevant Federal rules that may duplicate, overlap, or conflict with the preferred alternative.

### Steps Taken to Minimize Economic Impacts on Small Entities

The FRFA evaluated four alternatives: (1) the status quo, (2) full retention allowing all retained DSR to enter the stream of commerce, (3) full retention prohibiting certain amounts of DSR from entering the stream of commerce, and (4) use of an observer program. Alternative 3 is the preferred alternative. Alternative 1 imposes no adverse impacts on small entities, but fails to advance the action objectives of providing new information on DSR, reducing DSR wastage, and maintaining consistency between State and Federal regulations.  Alternative 2 may be less costly than Alternative 3 in that fishermen could allow processors to sell the excess DSR and relinquish the proceeds to the State. However, regulation of the disposition of the proceeds from the sale of DSR under Alternative 2 appears to exceed the authority granted to NMFS under the Magnuson-Stevens Act. Alternative 3, the preferred alternative, is discussed in detail in the preamble to the proposed rule and summarized in this final rule. Under Alternative 4, fishermen face additional costs for observer coverage, including travel and logistical expenses for observers, and an additional cost of about $330/day for 30 percent of days at sea. This alternative would provide new information on the status of DSR stocks, but would not reduce DSR waste or reduce the inconsistency between State and Federal regulations. Using observers for the DSR incidental catch fishery might become more feasible in the future in the context of a comprehensive restructuring of the observer program that would include funding for the observers so that the entire cost did not fall on fishermen.

The Council considered but rejected several other alternatives because they did not appear to be effective solutions to the stated goals. Those mentioned in the EA include: (1) open the directed DSR fishery during halibut IFQ seasons and require full retention, (2) defer all management of DSR to the State, and (3) implement an IFQ fishery for DSR. The EA also discussed the option of an exempted fishing permit (EFP) conducted in order to obtain bycatch data. However, although such a program might allow more flexibility in design, it would depend on voluntary participation, and would therefore not enable the State to obtain a full census.
      ( print page 68098)    
This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) that have been approved by the Office of Management and Budget (OMB). These collections are provided below by OMB control number:

*OMB No. 0648-0206*                     Public reporting burden is estimated to average 21 minutes for a Federal Fisheries Permit application and 20 minutes for a Federal Processor Permit application.                

*OMB No. 0648-0213*                     This collection contains the recordkeeping and reporting forms and logbooks in which species, including DSR, are recorded and reported. Total public reporting burden for this family of forms is estimated at 32,329 hours. This estimate covers all forms of logbooks, and is not necessarily indicative of the burden associated with those to whom this rule applies. No measurable increase in burden is associated with this final rule because activity under this final rule is included in the existing collection.                

                    The estimated response times shown include the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see                     **ADDRESSES**                    ) and by e-mail to                     *DRostker@omb.eop.gov*, or fax to 202-395-7285.                

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

## Small Entity Compliance Guide

                    Affected commercial fishermen will be in compliance with this rule if they retain all DSR they catch incidental to fishing for other groundfish and Pacific halibut. Further, these fishermen may not sell their incidental harvest of DSR if it is in excess of 10 percent of the aggregate round weight equivalent of IFQ halibut and groundfish species, other than sablefish, that are landed during the same fishing trip, or if it is in excess of 1 percent of the aggregate round weight equivalent of IFQ sablefish that are landed during the same fishing trip. Copies of the final rule are available from NMFS (see                     **ADDRESSES**                    ) and at the following website:                     *http:/www.fakr.noaa.gov*.                

# List of Subjects in 50 CFR Part 679

      - Alaska
      - Fisheries
      - Recordkeeping and reporting requirements

Dated: November 18, 2004.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For reasons set out in the preamble, 50 CFR part 679 is 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.*, and 3631                             *et seq.*; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; Pub L. 106-31, Sec. 3027; and Pub L. 106-554, Sec. 209.                        

2. In § 679.20, paragraph (j) is added to read as follows: 

§ 679.20

* * * * *

                            (j)                             *Full retention of Demersal Shelf Rockfish (DSR) in the Southeast Outside District of the GOA (SEO)*                            —(1)                             *Retention and landing requirements.*                             The operator of a catcher vessel that is required to have a Federal fisheries permit, or that harvests IFQ halibut with hook and line or jig gear, must retain and land all DSR that is caught while fishing for groundfish or IFQ halibut in the SEO.                        

                            (2)                             *Disposal of DSR when closed to directed fishing.*                             When DSR is closed to directed fishing in the SEO, the operator of a catcher vessel that is required to have a Federal fisheries permit under § 679.4 (b), or the manager of a shoreside processor that is required to have a Federal processor permit under § 679.4(f), must dispose of DSR retained and landed in accordance with paragraph (j)(1) of this section as follows:                        

(i) A person may sell, barter, or trade a round weight equivalent amount of DSR that is less than or equal to 10 percent of the aggregate round weight equivalent of IFQ halibut and groundfish species, other than sablefish, that are landed during the same fishing trip.

(ii) A person may sell, barter, or trade a round weight equivalent amount of DSR that is less than or equal to 1 percent of the aggregate round weight equivalent of IFQ sablefish that are landed during the same fishing trip.

(iii) Amounts of DSR retained by catcher vessels under paragraph (j)(1) of this section that are in excess of the limits specified in paragraphs (j)(2)(i) and (ii) may be put to any use, including but not limited to personal consumption or donation, but must not enter commerce through sale, barter, or trade.

3. In 50 CFR part 679, Table 10 is revised as follows:
      ( print page 68099)          ( print page 68100)          ( print page 68101)          ( print page 68102)          ( print page 68103)    

BILLING CODE 3510-22-S

[FR Doc. 04-25960 Filed 11-22-04; 8:45 am]

BILLING CODE 3510-22-C