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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 679
          - [Docket No. 051116304-5304-01; I.D. 110805A]
          - RIN 0648-AT92

# AGENCY:

                        National Marine Fisheries Service (NMFS), National Oceanic and                               ( print page 71451)                            Atmospheric Administration (NOAA), Commerce.                    

# ACTION:

Proposed rule; request for comments.

# SUMMARY:

NMFS issues a proposed rule that would implement Amendment 69 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).  Amendment 69, if approved, would amend the manner in which the total allowable catch (TAC) for the “other species” complex is annually determined in the Gulf of Alaska (GOA).  The FMP amendment would allow the TAC amount for the “other species” complex to be set less than or equal to 5 percent of the sum of  groundfish targets species in the GOA.  This proposed rule would revise the maximum retainable amount (MRA) of  “other species” in the directed arrowtooth flounder fishery from 0 to 20 percent.  This action would allow conservation and management of species within the “other species” category and is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMP, and other applicable laws.

# DATES:

Comments must be submitted by January 13, 2006.

# ADDRESSES:

Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn:  Lori Durall.  Comments may be submitted by:
      - E-mail: 0648-AT92-PR-GOA69@noaa.gov .  Include in the subject line the following document identifier: GOA 69 PR.  E-mail comments, with or without attachments, are limited to 5 megabytes.                    
      - Webform at the Federal eRulemaking Portal: www.regulations.gov .  Follow the instructions at that site for submitting comments.                    
      - Mail: P.O. Box 21668, Juneau, AK 99802
      - Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK.
      - Fax: 907-586-7557.

                        Copies of Amendment 69 and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for the amendment may be obtained from the same address or from the NMFS Alaska Region website at                         *www.fakr.noaa.gov*.  The FMP is available from                         *www.fakr.noaa.gov/​npfmc/​fmp/​goa/​goa.htm*.                    

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION: 

                    The groundfish fisheries in the exclusive economic zone of the GOA are managed under the FMP.  The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801,                     *et seq.*                     Regulations implementing the FMP appear at 50 CFR part 679.  General regulations governing U.S. fisheries also appear at 50 CFR part 600.                

                    The Council has submitted Amendment 69 for review by the Secretary of Commerce, and a Notice of Availability of the FMP amendment was published in the                     **Federal Register**                     on November 16, 2005 (FR citation), with comments on the FMP amendment invited through January 17, 2006.                

Comments may address the FMP amendment, the proposed rule, or both, but must be received by January 17, 2006, to be considered in the approval/disapproval decision on the FMP amendment.  All comments received by that time, whether specifically directed to the FMP amendment or to the proposed rule, will be considered in the approval/disapproval decision on the FMP amendment.

## Background

Designation and management of the “other species” complex have evolved through a series of amendments to the GOA FMP.  The following section provides an overview of how the complex has been managed historically under the FMP, and the amendments that have modified the complex and its management.

The original FMP, implemented in 1978, identified three separate species categories: (1) prohibited species; (2) specific species or species complexes; and (3) “other species.”  Under the original FMP, “other species” had a Maximum Sustained Yield/Optimum Yield (MSY/OY) of 16,200 mt based upon historic foreign catch.

Amendment 5 to the FMP removed grenadiers from the “other species” complex and established them as their own category with a separate MSY/OY of 13,200 mt based upon the recorded average grenadier catch from 1967-1979.  Grenadiers were removed from the “other species” complex due to concerns that catches of grenadiers (specifically unforeseen incidental catches in the hook-and-line sablefish fishery) would exceed the MSY/OY for the “other species” complex and close directed fishing for target species.  Because the population of grenadiers was not included in the development of the OY for “other species”, the MSY/OY for the “other species” complex remained unchanged following the removal of grenadiers. 

Amendment 8 to the FMP was implemented in 1980 (45 FR 73486, November 5, 1980).  Under this amendment, the grenadiers category was renamed non-specified species.  All species caught that were not classified as target, prohibited or “other species” were reported to the non-specified category.  Amendment 8 was intended to alleviate operational problems from fishermen reporting non-specified species in the “other species” complex.  “Other species” were defined as species that have “only slight economic value and are not generally targeted upon, but which are either significant components of the ecosystem or have economic potential.”  The OY for the “other species” complex was established as 5 percent of the OYs for all target species.  The “other species” complex included sculpins, sharks, skates, eulachon, smelts, capelin, and octopi.  Squids were managed as a separate target fishery with a separate MSY and OY.  Under Amendment 8, the OY for the “other species” complex was modified to be managed Gulf-wide, rather than allocated by management area. 

Amendment 14 to the FMP was implemented November 18, 1985 (50 FR 43193).  This amendment set the OY for the “other species” complex to 22,460 mt.  Two years later, the FMP was amended by Amendment 15 (52 FR 7868, March 13, 1987 such that the TAC calculation for the “other species” complex was equal to 5 percent of the total TACs for all GOA target groundfish species.  This percentage was consistent with previous approaches for setting OY for the “other species” complex, and was determined to be ample to provide for the anticipated incidental catch of those species.

Amendment 16 moved squids into the “other species” complex from the target species category (53 FR 7756, March 10, 1988).  Atka mackerel was combined into the “other species” complex due to low abundance, and the absence of a directed fishery for several years.  High landings in 1992 and a directed fishery in 1993 demonstrated Atka mackerel was a target species.  Amendment 31 moved Atka mackerel from the “other species” complex and established it as a target species (58 FR 54553, October 22, 1993). 

                    Amendment 39 defined a forage fish category in the FMP (63 FR 13798, March 23, 1998).  Important prey species were included in this category.  Regulations promulgated under                           ( print page 71452)                        Amendment 39 prohibited directed fishing and commercial processing of forage fish.  Retention, sale, barter, trade, or other commercial exchange were limited.  Eulachon, capelin, and smelts were moved from the “other species” complex to the forage fish category.  The full list of species included in the forage fish category is in the FMP (see                     **ADDRESSES**                    ).                

                    In 2003, as a skate directed fishery expanded, conservation concerns developed.  As long as skates remained a part of the “other species” complex, NMFS could not manage skates as a distinct target category.  Skate catch was limited only by the “other species” complex TAC minus catch of the remaining species in the complex.  In 2004, Amendment 63 to the GOA FMP removed skates from the “other species” complex and placed them in a target category (69 FR 26313, May 12, 2004).  Currently, overfishing levels, acceptable biological catches, and TACs are specified for big skates, longnose skates, and the remaining skates in the                     *Bathyraja sp*. (or other skate) complex.  This amendment allowed for an appropriate sized directed fishery for skates based on the best available information on the stock, ensuring skate sustainability.                

The “other species” complex currently contains the following species groups:  squids, sculpins, sharks, and octopi.  The “other species” complex is open to directed fishing up to the TAC level for the complex, after allowing for incidental catch needs in other groundfish fisheries.  The current requirement to set the “other species” complex TAC to 5 percent of the combined groundfish TACs could present conservation issues.  Removing species from the “other species” complex has two effects.  First, the number of target categories are increased.  More target categories may increase the combined TAC in the GOA.  If the combined TAC is larger, the TAC for the “other species” complex will be larger because the “other species” TAC is equal to exactly 5 percent of the combined TAC.  Second, the number of species in the “other species” complex is reduced.  Fewer species in the complex and the larger TAC increase the chance that one or more species groups in the complex may experience excessive harvest, including up to the entire TAC for the “other species” complex.  The current process for calculating the “other species” TAC provides no flexibility.  NMFS cannot establish the TAC for the “other species” complex at an amount lower than 5 percent, if the best available information indicates a lower amount is the most prudent action.

Retention of squids has increased by 13 times between 2003 and 2005.  During 2005, shoreside processors were offering increased prices for spiny dogfish sharks.  As indicated by skates, markets can develop quickly for species previously thought of as having little value.  In order to quickly respond to developing fisheries in the “other species” complex, NMFS would need the flexibility to establish the “other species” complex TAC at a value less than 5 percent of the combined GOA species TACs.  Setting the “other species” complex TAC to less than 5 percent of the combined GOA species TACs could prevent catch of one or more groups in the complex from disproportionately dominating the entire “other species” complex catch.  NMFS would be able to allow for a developing fishery on a group in the “other species” complex while limiting the potential for excessive catch.  The increased incidental catch of squids and the potential developing market for spiny dogfish sharks indicate that this proposed action is necessary and timely to allow for the “other species” complex TAC to be set at a level appropriate for sustainable harvest of sharks, squids, sculpins, and octopi groups. 

Amendment 69 would allow for sustainable management of any fishery targeting one or more species groups within the “other species” complex.  As part of the annual groundfish harvest specifications process, Amendment 69 to the FMP would allow a TAC amount for “other species” to be set less than or equal to 5 percent of the sum of TACs of the target species in the GOA.  The “other species” complex TAC could be set at an amount estimated to be sufficient to meet the annual incidental catch needs in other groundfish fisheries and could allow for directed fishing for “other species” to occur at sustainable levels.  It is not necessary to amend existing regulations to implement the change in the “other species” complex TAC calculation.  This calculation is described only in the FMP text and is not specified in the harvest specifications regulations at § 679.20.  Because the “other species” TAC calculation is specified only in the FMP, no regulatory amendment is required to change the method of calculating the “other species” TAC.  However, it is necessary to amend the harvest specification regulations in order to ensure conservation and management of “other species” incidental catch in groundfish fisheries, as described below.

## Proposed Regulatory Amendment

To manage the incidental harvest of the “other species” complex with the implementation of Amendment 69, this proposed action would revise Table 10 of 50 CFR part 679 to raise the MRA for the “other species” complex from 0 to 20 percent in the arrowtooth flounder fishery in the GOA.  This revision is necessary to properly manage the retention of “other species” in the arrowtooth flounder fishery and to potentially reduce the amount of discards of fish in the “other species” complex.

This action is intended to meet the conservation objectives of the Magnuson-Stevens Act to reduce the potential for overfishing the species groups in the “other species” complex and to efficiently use fishery resources by reducing potential discards.  This action would be an interim step towards the Council's development of a more comprehensive approach towards the management of “other species.”

## Classification

NMFS has not yet determined whether the amendment that this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.  In making that determination, NMFS will take into account the data, views, and comments received during the comment period.

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

                    NMFS prepared an IRFA which describes any adverse impacts this proposed rule, if adopted, would have on directly regulated small entities.  Because this action is closely linked to the annual harvest specifications, the EA/RIR/IRFA (see                     **ADDRESSES**                    )  prepared for this action also analyzes the action to establish annual harvest specifications for the “other species” complex in the GOA.  The IRFA analyses two FMP  alternatives to revise the manner in which the annual TAC for the “other species” in the GOA is established, along with the status quo or no action alternative.  In addition, two suboptions to revise the MRAs for “other species” in the groundfish fisheries in the GOA are analyzed along with the status quo, or no action suboption.  A summary of the IRFA for this action follows:                

                    The proposed action for Amendment 69 revises the manner in which the annual TAC for the “other species” complex in the GOA is established and raises the MRA for “other species” from 0 to 20 percent in the arrowtooth                           ( print page 71453)                        flounder fishery.  As part of its annual groundfish harvest specification process, the Council would recommend a TAC amount for the “other species” complex at less than or equal to 5 percent of the sum of the groundfish TAC amounts.  The objective of this action is to give the Council greater flexibility in recommending a TAC amount for “other species” in order to better protect individual species in the “other species” complex from overfishing and to make a sustainable fishery for the “other species” complex more likely.                

The legal basis for this action is found in the Magnuson-Stevens Act and in the GOA groundfish FMP promulgated pursuant to that act.

The IRFA for this action ascertained that in 2003, 803 small catcher vessels and 13 small catcher processors might be directly regulated by this action.  Most of these (655 catcher vessels and 9 small catcher processors) were hook-and-line vessels.  In addition, 137 catcher vessels and 1 catcher processor used pot gear, and 93 small catcher vessels and 3 small catcher processors used trawl gear.  All these vessels are considered “small entities” as defined by the Regulatory Flexibility Act.  In 2003, these vessels had average revenues of $190,000 from the federally managed groundfish fisheries.  Average revenues were $170,000 for catcher vessels and $1,530,000 for catcher processors.

This action would allow the TAC for “other species” to be set at less than 5 percent of the sum of other groundfish TACs, thereby limiting potential future harvests of “other species” and gross revenues from these harvests in the short run.  In the long run, however, the biomass of “other species” would be given additional protection.  Actual impacts to small entities would depend on the actual TAC amount recommended for “other species” by the Council and approved by NMFS.  These impacts would be assessed in the IRFA for the TAC specification action.

Nothing in the proposed action would result in changes in reporting or recordkeeping requirements.

The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.

The IRFA evaluated a no-action alternative, the preferred alternative and an alternative that would allow for only incidental catch of “other species.”  Under the no-action alternative, the TAC for the “other species” complex would remain at 5 percent of the sum of other groundfish TACs.  The “other species” complex 2006 TAC is 13,525 mt (70 FR 8958, February 24, 2005).  If this amount were harvested by targeting a single species in the “other species” complex it could drive down that species biomass and reduce its reproductive potential.  While revenues from the fishery would be higher in the short run, they would be lower in the longer run.  Thus, while this alternative may have imposed fewer short run restrictions on small fishing operations, it did not meet the objectives of providing protection to individual species within the “other species” complex in the GOA and thereby protecting the future of a sustainable fishery.  The incidental catch only alternative would not allow the Council to provide for a directed fishery for “other species.”  This alternative would prevent the Council's use of the best available information in determining the appropriate management for “other species.”  For example, if the best available information indicated that a directed fishery for “other species” could occur without harming its future sustainability, then achieving its optimum yield would be prevented by this alternative.  The preferred alternative, however, would allow the Council to decide whether to allow for a target fishery or for only incidental catch based on the latest stock assessment information.

# List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Recordkeeping and reporting requirements.

Dated: November 22, 2005.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

For 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.*; 1540(f); 1801 et  seq.; 1851 note; 3631 et  seq.                        2.  Table 10 to part 679 is revised to read as follows:

      ( print page 71454)          ( print page 71455)          ( print page 71456)          ( print page 71457)          ( print page 71458)    

[FR Doc. 05-23465 Filed 11-28-05; 8:45 am]

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