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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 679
          - [Docket No. 080310410-9585-02]
          - RIN 0648-AW54

# AGENCY:

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

# ACTION:

 Final rule.

# SUMMARY:

 NMFS issues a final rule to prohibit a catcher vessel from landing more than 300,000 lb (136 mt) of unprocessed pollock during a calendar day, and from landing a cumulative amount of unprocessed pollock from any Gulf of Alaska reporting area that exceeds 300,000 lb multiplied by the number of calendar days the pollock fishery is open to directed fishing in a season. This rule will prevent catcher vessels from circumventing the intent of current trip limit regulations when making deliveries of pollock. Amending the current trip limit regulation to limit a vessel to 300,000 lb of pollock caught in a day will continue to disperse catches of pollock in a manner that is consistent with the intent of Steller sea lion protection measures in the Gulf of Alaska. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. 

# DATES:

 Effective May 21, 2009. 

      ( print page 18157)    

# ADDRESSES:

                         Copies of the Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA) prepared for this action are available from the Alaska Region NMFS at the address above or from the Alaska Region NMFS website at                         *http://alaskafisheries.noaa.gov/​regs/​summary.htm*.                     

# FOR FURTHER INFORMATION CONTACT:

 Jeffrey L. Hartman, 907 586 7442.

# SUPPLEMENTARY INFORMATION:

                    NMFS manages the U.S. groundfish fisheries of the exclusive economic zone (EEZ) off Alaska under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The North Pacific Fishery Management Council prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801*et seq.*                     (Magnuson-Stevens Act). Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600. The FMP also authorizes the use of fishery management measures to protect marine mammals, particularly for species that have been listed as endangered or threatened under the Endangered Species Act.                

## Background and Need for Action

                    The background and need for this action were described in detail in the preamble to the proposed rule published in the                     **Federal Register**                     on October 20, 2008, (73 FR 62241). In summary, trip limits regulate the amount of a species that may be landed by a vessel during a fishing trip and often are specific to a management, regulatory, or reporting area; to fishing gear type or programs (such as Steller sea lion protection or the Community Development Quota Program); and to specific intervals of time during a year or season.                 

Regulations at § 679.7(b)(2) establish trip limits for pollock in the Western and Central Gulf of Alaska (GOA). Pollock trip limits were intended to protect Steller sea lions in part by temporally dispersing the pollock fishery in the GOA, thus reducing competition for prey species between the fishery and Steller sea lions. Trip limits were to accomplish this by decreasing daily pollock catches in areas that were in close proximity to foraging Steller sea lions. 

These GOA pollock trip limits have not been completely effective at restricting catches of pollock to 300,000 lb per day. Some trawl catcher vessels were circumventing the intent of the trip limit by making more than one trip per calendar day, delivering more than 300,000 lb to a tender in a day, and towing codends to a tender that exceeded 300,000 lb at the point of landing. Catch data prepared by NMFS for the RIR/FRFA for this rule confirmed that the trip limit regulation has not been fully effective because vessels in the GOA pollock fishery exceeded landings of 300,000 lb in a day, 241 times from 1999 to 2006. 

## Summary of Regulatory Changes

This final rule adds two major provisions to the current GOA trip limit regulation. The first provision adds a daily landing limit at § 679.7(b)(2)(ii) for pollock by prohibiting a trawl catcher vessel from landing more than 300,000 lb of unprocessed pollock during a calendar day. The daily landing limit will partially close the loophole in regulations that has allowed vessel operators to exceed the trip limit. The second provision adds a seasonal landing limit at § 679.7(b)(2)(iii) that prohibits a trawl catcher vessel from landing a cumulative amount of pollock that exceeds 300,000 lb multiplied by the number of calendar days that the directed fishery is open in a reporting area. 

Minor regulatory amendments are also included in this rule. A definition for “calendar day” is added at § 679.2 to specify the interval of time in a day from 0001 hours Alaska local time to 2400 hours Alaska local time that a catcher vessel is prohibited from exceeding a daily or seasonal pollock landing limit Regulations governing the prohibitions on pollock trip limits at § 679.7(b)(2) are moved to § 679.7(b)(2)(i) to reorganize § 679.7(b)(2). Figure 3 to part 679 is revised, to increase the accuracy of the geographic boundaries shown on the map and by changing the figure title from “Gulf of Alaska Statistical and Reporting” to read “Gulf of Alaska Reporting Areas.” 

This action is consistent with the original intent of pollock trip limits to temporally and spatially disperse catches of pollock in the GOA. The daily landing limit portion of this action will temporally disperse catches of pollock in the GOA by prohibiting operators of catcher vessels from exceeding 300,000 lb of pollock landed in a calendar day. The seasonal landing limit will temporally disperse pollock catches by constraining pollock vessels from exceeding an average daily catch of 300,000 lb of pollock over the period of a season, in a specific GOA regulatory area. 

## Response to Comments

                    The proposed rule for this action was published in the                     **Federal Register**                     on October 20, 2008 (73 FR 62241). NMFS received one letter of comment from industry on the proposed rule.                 

*Comment:*                     The commenter indicated support for the proposed action, without revision.                 

*Response:*                     NMFS acknowledges this comment of support.                 

## Changes From the Proposed Rule

In the proposed rule, NMFS did not specify that prohibitions for GOA trip limits, daily landing limits and seasonal landing limits would apply to only the vessels that are issued a Federal Fishing Permit (FFP). The final rule corrects that error at § 679.7(b)(2)(i), (ii), and (iii), by prohibiting catcher vessels issued an FFP from (1) retaining more than 300,000 lb of unprocessed pollock on board at anytime during a fishing trip, and (2) landing to a processor or tender more than 300,000 lb of unprocessed pollock harvested from any GOA reporting area on a catcher vessel issued a FFP multiplied by the number of calendar days the directed fishery is open in that reporting area. This correction is necessary to clarify that these regulations apply to vessels fishing with an FFP. 

## Classification

The Administrator, Alaska Region, NMFS, determined that this regulatory amendment to revise pollock trip limits is necessary for the conservation and management of the groundfish fisheries and that it is consistent with 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 IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES). The public comment period ended on April 21, 2008. One comment was received in support of the rule. No comments were received on the IRFA or on the economic impacts of the rule.

                    The objective of this action is to prevent catcher vessels from circumventing the intent of current trip limit regulations when making deliveries of pollock and continue to disperse catches of pollock in a manner                           ( print page 18158)                        that is consistent with the intent of Steller sea lion protection measures in the GOA. NMFS has identified more than 140 small entities that could be impacted by this action. The effect of this action on regulated entities is likely to be distributional, with some of the small entities increasing catches of pollock and others decreasing catches. If these regulations are approved, some of the small entities that have been circumventing the intent of current pollock trip limits may experience an increase in costs to catch the same number of pollock.                 

NMFS has not identified a significant alternative to the proposed action that would meet the objectives of the action and would have a smaller adverse impact on directly regulated small entities. The no action alternative was rejected because it is not consistent with the intent of the original 1999 Steller sea lion protection measures. Another alternative to the preferred alternative, considered and rejected, was to limit the applicability of the action to the Federal EEZ. Trawl pollock fisheries in the GOA are managed in the Federal EEZ by NMFS under the FMP, and within State waters by the State of Alaska. The alternative to apply daily and seasonal trip limits to only the Federal EEZ would not encompass activities within State waters by federally permitted vessels. As discussed in the RIR/FRFA for this action, the pollock resource and the fishery within the GOA occur both within Federal and State waters. Applying trip limits, daily landing limits, and seasonal landing limits to fishing in Federal waters only would limit the effectiveness of this action, since participants in the pollock trawl fishery would be free to move to the area where trip limits do not apply. 

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 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 revise trip limits for pollock in the GOA. The proposed rule, final rule, and regulations governing the groundfish fisheries off Alaska are the best source of information about how to comply with the regulatory amendment 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 Web site at                     *http://alaskafisheries.noaa.gov*.                

# List of Subjects in 50 CFR Part 679

      - Alaska
      - Fisheries

Dated: April 16, 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.                        

2. In § 679.2 add a definition for “Calendar day” in alphabetical order to read as follows: 

§ 679.2

*Calendar day*                             means a 24-hour period that starts at 0001 hours Alaska local time and ends at 2400 hours Alaska local time.                        

3. In § 679.7, revise paragraph (b)(2) to read as follows: 

§ 679.7

(b) * * *

                            (2)                             *Catcher vessel harvest limit for pollock.*                             (i) Retain more than 300,000 lb (136 mt) of unprocessed pollock on board a catcher vessel issued a FFP at any time during a fishing trip as defined at § 679.2;                         

(ii) Land more than 300,000 lb (136 mt) of unprocessed pollock harvested in any GOA reporting area from a catcher vessel issued a FFP to any processor or tender vessel during a calendar day as defined at § 679.2; and

(iii) Land a cumulative amount of unprocessed pollock harvested from any GOA reporting area from a catcher vessel issued a FFP during a directed fishery that exceeds the amount in paragraph (b)(2)(ii) of this section multiplied by the number of calendar days that occur during the time period the directed fishery is open in that reporting area.

4. In Figure 3 to part 679, the figure heading and map are revised to read as follows: 
      ( print page 18159)    

[FR Doc. E9-9107 Filed 4-20-09; 8:45 am]

BILLING CODE 3510-22-S