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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 679
          - [Docket No. 080103016-9316-02]
          - RIN 0648-AW40

# AGENCY:

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

# ACTION:

Final rule.

# SUMMARY:

                        NMFS issues a regulation to revise the maximum retainable amounts                               ( print 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 § 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                           ( print page 13350)                        groundfish in the GOA arrowtooth flounder fishery as described in the proposed rule.                

This final rule revises § 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.

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

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.                        
      ( print page 13351)    
2. In § 679.20 the first sentence of paragraph (f)(2) is revised to read as follows: 

§ 679.20

(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. * * *                         

3. Table 10 to 50 CFR part 679 is revised to read as follows:
      ( print page 13352)          ( print page 13353)          ( print page 13354)    

BILLING CODE 3510-22-S

[FR Doc. E9-6892 Filed 3-26-09; 8:45 am]

BILLING CODE 3510-22-C