[Federal Register Volume 74, Number 58 (Friday, March 27, 2009)]
[Rules and Regulations]
[Pages 13348-13354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6892]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 080103016-9316-02]
RIN 0648-AW40


Fisheries of the Exclusive Economic Zone Off Alaska; Revise 
Maximum Retainable Amounts of Groundfish Using Arrowtooth Flounder as a 
Basis Species in the Gulf of Alaska

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

ACTION: Final rule.

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SUMMARY: NMFS issues a regulation to revise the maximum retainable 
amounts

[[Page 13349]]

(MRAs) of groundfish using arrowtooth flounder as a basis species in 
the Gulf of Alaska. This action increases the MRAs from 0 percent to 20 
percent for deep-water flatfish, rex sole, flathead sole, shallow-water 
flatfish, Atka mackerel, and skates; from 0 percent to 5 percent for 
aggregated rockfish; and from 0 percent to 1 percent for sablefish. The 
intended effect of this action is to reduce regulatory discards of 
otherwise marketable groundfish in the arrowtooth flounder fishery. 
This action is intended to promote the goals and objectives of the 
Magnuson-Stevens Fishery Conservation and Management Act, the Fishery 
Management Plan for Groundfish of the Gulf of Alaska, and other 
applicable law.

DATES: Effective March 27, 2009.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action are available from the Alaska Region website at http://www.fakr.noaa.gov/sustainablefisheries.htm. Printed copies may be 
obtained from the Alaska Region NMFS, P.O. Box 21668, Juneau, AK 99802, 
Attn: Ellen Sebastian.

FOR FURTHER INFORMATION CONTACT: Tom Pearson, 907-481-1780.

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the groundfish fisheries in the exclusive economic 
zone in the Gulf of Alaska (GOA) under the Fishery Management Plan for 
Groundfish of the Gulf of Alaska (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) establish maximum retainable amount 
(MRA) percentages for groundfish species and species groups. These MRA 
percentages establish the amount of a species closed to directed 
fishing that may be retained onboard a vessel, relative to the amounts 
of other groundfish open to directed fishing retained onboard the 
vessel. MRA percentages serve as a management tool to slow down the 
rate of harvest and reduce the incentive for targeting a species closed 
to directed fishing. MRAs also allow for retention of incidentally 
caught species instead of requiring regulatory discards of species 
closed to directed fishing. MRA percentages do not reflect a natural 
incidental catch rate, but rather, reflect a balance between the 
recognized need to slow harvest rates, minimize the potential for 
discards, and, in some cases, provide an increased opportunity to 
harvest available total allowable catch (TAC) through limited targeting 
activity.
    In October 2006, the Council received a proposal from industry to 
increase the MRAs for several groundfish species using arrowtooth 
flounder as a basis species because arrowtooth flounder is now a viable 
target fishery. Effort by the trawl fleet to improve retention of 
groundfish species is constrained by the current MRAs. In addition, to 
support the increased catch of arrowtooth flounder, the annual TAC for 
arrowtooth flounder was increased from 5,000 mt to 8,000 mt in the 
Western GOA in 2001 and has remained at that level since then. The 
arrowtooth flounder TAC was increased from 25,000 mt to 30,000 mt in 
the Central GOA in 2007 and remained at that level in 2008. Total catch 
of arrowtooth flounder in the GOA, including both directed fishing and 
incidental catch in other groundfish fisheries, has increased from 
16,247 mt in 1997 to 25,340 mt in 2007. Over the same period the 
retention of arrowtooth flounder in all trawl fisheries has increased 
from 18 percent to 58 percent of the total catch of arrowtooth flounder 
in the GOA, an indication of a growing market for arrowtooth flounder. 
In the 2006 directed arrowtooth flounder fishery in the GOA, 82 percent 
of arrowtooth flounder catch was retained.
    The Council took final action in October 2007, and selected the 
industry's proposal as its preferred alternative. This final rule 
revises the GOA Retainable Percentages listed in Table 10 to part 679 
to increase the MRAs for selected groundfish species using arrowtooth 
flounder as a basis species. The MRAs for deep-water flatfish, rex 
sole, flathead sole, shallow-water flatfish, Atka mackerel, and skates 
is increased from 0 percent to 20 percent; the MRA for aggregated 
rockfish is increased from 0 percent to 5 percent; and the MRA for 
sablefish is increased from 0 percent to 1 percent. The MRAs for 
pollock, Pacific cod, (other species,( and forage fish using arrowtooth 
flounder as a basis species are unchanged.
    The Environmental Assessment prepared for this action concluded 
that the proposed increase of the MRAs for selected species of 
groundfish using arrowtooth flounder as a basis species would not 
affect any groundfish stock or any other component of the physical or 
biological environment. Under this final rule, the MRAs for groundfish 
in the arrowtooth flounder fishery are increased from current levels 
and greater amounts of groundfish closed to directed fishing may be 
retained in the arrowtooth flounder fishery instead of discarded. 
However, even though the amounts of groundfish retained in the 
arrowtooth flounder fishery could increase, total removals of each 
species would still be within the TAC levels for each species and would 
be further constrained by halibut PSC limitations that often close 
directed fishing for groundfish by vessels using trawl gear. The 
impacts of the harvest strategies and resulting TAC amounts were 
analyzed in the 2007 Alaska Groundfish Harvest Final Specifications 
Environmental Impact Statement available at http://www.fakr.noaa.gov. 
Further information on the background of this final rule may be found 
in the proposed rule for this action (73 FR 71592 November 25, 2008). 
Comments on the proposed rule were invited and accepted through 
December 26, 2008.

Response to Comments

    NMFS received two letters of comment on the proposed rule. One in 
opposition to the proposed rule from a private citizen and one in 
support of the proposed rule from the Alaska Groundfish Data Bank. A 
summary of those comments and NMFS's responses follow.
    Comment 1: The commenter opposed any increase in the amount of fish 
allowed to be caught.
    Response: Revising the MRAs in the GOA arrowtooth flounder fishery 
does not increase the total amount of any groundfish species that may 
be harvested in the GOA groundfish fisheries. Those catch limits are 
established through the annual specifications process and remain the 
limit on total catch. This regulatory amendment allows greater 
retention of species caught incidentally in the GOA arrowtooth flounder 
fishery and is intended to reduce regulatory discards and increase 
utilization of groundfish species already caught. All catch of 
groundfish or prohibited species in the arrowtooth flounder fishery 
that is reported or estimated to be caught using observer data will be 
subtracted from the total allowable catch for those species and 
fisheries will be closed by NMFS once those limits are reached.
    Comment 2: The processor and shoreside trawl members of the Alaska 
Groundfish Data Bank support this proposed rule to revise the maximum 
retainable amounts in the GOA arrowtooth flounder fishery.
    Response: NMFS acknowledges the comment and its support for this 
action. This final rule revises the MRAs for

[[Page 13350]]

groundfish in the GOA arrowtooth flounder fishery as described in the 
proposed rule.
    This final rule revises Sec.  679.20(f)(2) to remove the 
prohibition that arrowtooth flounder not be used as a basis species to 
calculate retainable amounts of other groundfish species.
    This final rule reflects revisions to Table 10 that have occurred 
since the proposed rule's publication in the Federal Register. Table 10 
was revised by a final rule that implemented a variety of recordkeeping 
and reporting regulatory amendments (73 FR 76136; December 15, 2008) 
and a final rule that implemented Amendments 73/77 to revise the 
management authority for dark rockfish in the BSAI and GOA (73 FR 
80307, December 31, 2008).

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), 
and provides a summary of the analyses completed to support the action. 
A copy of this analysis is available from NMFS (see ADDRESSES). The 
need for and objectives of this action are described in the background 
section of this final rule. No comments were received on the IRFA or on 
the economic effects of the rule.
    The Small Business Administration has defined all fish-harvesting 
or hatchery businesses that are independently owned and operated, not 
dominant in their field of operation, and have annual receipts less 
than $4.0 million as small businesses. In addition, seafood processors 
with 500 employees or fewer, wholesale industry members with 100 
employees or fewer, not-for-profit-enterprises, and government 
jurisdictions with a population of 50,000 or less are considered small 
entities. NMFS has determined that a ``substantial number'' of small 
entities would generally be 20 percent of the total universe of small 
entities affected by the regulation. A regulation would have a 
``significant negative impact'' on these small entities if it reduced 
annual gross revenues by more than 5 percent, increased total costs of 
production by more than 5 percent or resulted in compliance costs for 
small entities by at least 10 percent compared with compliance costs as 
a percent of sales for large entities.
    The FRFA estimated that 18 trawl catcher vessels participating in 
the arrowtooth flounder fishery qualify as ``small entities'' for 
purposes of the Regulatory Flexibility Act. None of the catcher/
processors participating in the arrowtooth flounder fishery qualify as 
small entities.
    Three alternatives were analyzed for their impact. Alternative 1, 
the status quo or no action alternative, would leave the MRAs for 
groundfish in the arrowtooth flounder fishery unchanged from current 
levels, and would continue to require fishermen to discard otherwise 
marketable groundfish. Alternative 2, the Council(s preferred 
alternative brought forward as a proposal from the industry, would 
increase the MRAs for some species of groundfish in the arrowtooth 
flounder fishery in order to reduce discards of otherwise marketable 
fish without raising allocation concerns with respect to pollock, 
Pacific cod, rockfish, and sablefish. Alternative 3, developed by NMFS 
and Council staff, would increase the MRAs for groundfish species 
caught in the arrowtooth flounder fishery to levels estimated to cover 
incidental catch of these species. Under Alternative 3 the MRAs for 
deep-water flatfish (5 percent), rex sole (10 percent), flathead sole 
(15 percent), shallow-water flatfish (5 percent), Atka mackerel (5 
percent), and skates (10 percent) would be lower than the 20 percent 
proposed under Alternative 2. Alternatives 2 and 3 would provide an 
opportunity to retain additional, economically valuable groundfish 
species in the arrowtooth flounder directed fishery. This would be 
beneficial to the affected small entities. The benefits to small 
entities under Alternative 2, the preferred alternative, would be 
slightly greater than under Alternative 3. No negative impacts on small 
entities are associated with either Alternative 2 or 3.
    This regulation does not impose new recordkeeping and reporting 
requirements on the regulated small entities.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions that a small entity is 
required to take to comply with a rule or group of rules.
    The preamble to the proposed rule and this final rule fully explain 
the regulatory amendments that will be implemented to increase the MRAs 
for selected groundfish species in the GOA arrowtooth flounder fishery. 
The proposed rule, final rule, and regulations governing the groundfish 
fisheries off Alaska, particularly Table 10 to 50 CFR part 679, are the 
best source of information about how to comply with these revised MRAs 
and, therefore, collectively they represent the small entity compliance 
guide for this final rule. These documents are available from NMFS (see 
ADDRESSES) and from the NMFS Alaska Region's website at http://alaskafisheries.noaa.gov. The revised version of Table 10 to 50 CFR 
also is published at the end of this final rule.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the 30-day delay in the effective date of this action under 5 
U.S.C. 553(d)(3). Revisions to the maximum retainable amounts of 
selected groundfish in the GOA arrowtooth flounder fishery relieve a 
restriction on fishermen participating in this fishery, and would not 
place any restriction on other components of the fishery. This action 
will allow increased retention of selected species of groundfish closed 
to directed fishing in the arrowtooth flounder fishery in the GOA which 
would otherwise be required by regulation.
    This final 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 final action.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: March 24, 2009.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 679 is amended as 
follows:

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

0
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.

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0
2. In Sec.  679.20 the first sentence of paragraph (f)(2) is revised to 
read as follows:


Sec.  679.20  General limitations.

* * * * *
    (f) * * *
    (2) Retainable amounts. Any groundfish species for which directed 
fishing is closed may not be used to calculate retainable amounts of 
other groundfish species. * * *
* * * * *

0
3. Table 10 to 50 CFR part 679 is revised to read as follows:
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[FR Doc. E9-6892 Filed 3-26-09; 8:45 am]
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