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 Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 679
[Docket No. 080226310-81205-01]
RIN 0648-AU20
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Proposed rule; request for comments.
 SUMMARY: NMFS issues a proposed rule that would implement Amendment 73 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 77 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (collectively, Amendments 73/77). If approved, Amendments 73/77 would remove dark rockfish (
                        *Sebastes ciliatus*) from both fishery management plans (FMPs). The State of Alaska (State) would then assume management of dark rockfish catch by State-permitted vessels in the Bering Sea and Aleutian Islands Management Area and the Gulf of Alaska. This action is necessary to allow the State of Alaska to implement more responsive, regionally based management of dark rockfish than is currently possible under the FMPs. This action would improve conservation and management of dark rockfish and is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMPs, and other applicable laws.
 DATES: Comments must be received no later than November 17, 2008.
 ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-AU20, by any one of the following methods: Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at*http://www.regulations.gov*.
                    Mail: P. O. Box 21668, Juneau, AK 99802.
                    Fax: (907) 586-7557.
                    Hand delivery to the Federal Building: 709 West 9th
                         Street, Room 420A, Juneau, AK. All comments received are a part of the public record and will generally be posted to 
                        *http://www.regulations.gov*
                         without change. All Personal Identifying Information (e.g., name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only. Copies of Amendments 73/77 and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
                        ( print page 55011)
                        Flexibility Analysis (EA/RIR/IRFA) 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: Jennifer Hogan, 907-586-7228.


SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) and the Gulf of Alaska (GOA) under their respective FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs 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. The Council has submitted Amendments 73/77 for review by the Secretary of Commerce, and a Notice of Availability (NOA) of the FMP amendments was published in the 
                    **Federal Register**
                     on September 17, 2008 (73 FR 53816) with comments on the FMP amendments invited through November 17, 2008. All written comments received by November 17, 2008, whether specifically directed to the FMP amendments, this proposed rule, or both, will be considered in the approval/disapproval decision on the FMP amendments. Management Background and Need for Action Dark rockfish (
                    *Sebastes ciliatus*) currently are managed as part of the “other rockfish” complex in the BSAI and as part of the pelagic shelf rockfish (PSR) complex in the GOA. Dusky rockfish (
                    *Sebastes variabilis*) and thornyhead rockfish (
                    *Sebastolobus*
                     species) comprise the majority of the biomass of the BSAI “other rockfish” complex. The biomass of the GOA PSR complex is dominated by dusky rockfish. The proposed action would remove dark rockfish from the FMPs to allow the State of Alaska (State) to assume management authority for dark rockfish catch by State-permitted vessels in Federal waters off Alaska, in addition to its existing authority in State waters. The Council recommended removal of dark rockfish from the FMPs in April 2007 for the following reasons: (1) in 2004, dark rockfish was identified as a separate rockfish species, (2) data in the stock assessments for the PSR complex in the GOA and the “other rockfish” complex in the BSAI are predominantly from dusky rockfish, not dark rockfish, (3) dark rockfish are distributed in nearshore habitats that are not specifically assessed by the NMFS trawl surveys, and (4) the possibility of overfishing dark rockfish in local areas given the relatively high total allowable catch (TAC) for the PSR and “other rockfish” complexes as a whole. Two types of dusky rockfish previously recognized as “light dusky rockfish” and “dark dusky rockfish” are now recognized by fishery scientists as two species. 
                    *Sebastes variabilis*, or dusky rockfish, is the variably colored deeper-water species, and 
                    *Sebastes ciliatus*, or dark rockfish, is the dark colored shallow-water species. Dark rockfish is the focus of Amendments 73/77 and this proposed rule. The TAC for all PSR species is based on a NMFS biannual or triennial trawl survey. Based on NMFS surveys conducted from 1997 through 2006, dark rockfish averaged 2 percent of the total biomass of the “other rockfish” complex in the Aleutian Islands (AI) and less than 1 percent in the Eastern Bering Sea (EBS). Based on observer data from 1997 through 2006, the average catch of dark rockfish was 1.6 percent of the total “other rockfish” catch in the AI and 0.7 percent in the EBS. Based on NMFS surveys conducted from 1996 through 2005, dark rockfish constituted an average of 3.5 percent of the total biomass of the PSR complex in the GOA. Based on observer data from 1996 though 2005, the average catch of dark rockfish was 0.6 percent of the total PSR catch in the GOA. However, the trawl surveys used to estimate the abundance of rockfish in the GOA and BSAI only sample fish that are on or near a smooth bottom. Most dark rockfish occur in rocky nearshore reef habitats that are not sampled in these surveys. Therefore, the NMFS surveys are not the most satisfactory means to assess dark rockfish abundance. In addition, including dark rockfish in the TAC for a group of rockfish (the “other rockfish” complex in the BSAI and the PSR complex in the GOA) is not appropriate for less abundant stocks such as dark rockfish because it could lead to overfishing of the less abundant species in the species groups. Section 306(a)(3)(A) of the Magnuson-Stevens Act allows a state to regulate a fishing vessel outside the boundaries of the state if the fishing vessel is registered under the law of that state, and no fishery management plan or other applicable Federal fishing regulations exist for the fishery in which the vessel is operating. Removing dark rockfish from the FMPs and regulations at 50 CFR part 679 would provide the necessary conditions for the State to manage dark rockfish in Federal waters off Alaska. Management by the State would better address localized assessment and harvest requirements for this nearshore species than is currently provided by Federal management under the larger PSR complex in the GOA and the “other rockfish” complex in the BSAI. Assessment of dark rockfish is difficult under either Federal or State management. As stated earlier, the Federal trawl surveys do not adequately assess dark rockfish. And, as noted in the EA, the State does not have the resources to conduct large scale stock assessment surveys for rockfish. However, the State's management of this species in Federal waters would provide several benefits. First, the State would develop a fishery management plan for dark rockfish that would specify guideline harvest levels, allowable gear types, seasons, and locations for the directed fishery. Also, the State can manage dark rockfish in smaller area fisheries than can be managed by NMFS. In addition, the State would be able to conduct periodic and localized stock assessment surveys when budgets allow and monitor fishing effort data available from fish tickets and logbooks. State port sampling would continue to be used to collect biological data on rockfish and to improve species identification by fishermen and processing plant workers. The State also would continue to evaluate data on dark rockfish from the NMFS surveys and data collected by observers onboard vessels catching dark rockfish. These efforts by the State would provide stronger protection of dark rockfish from overfishing than Federal management of dark rockfish as part of a larger rockfish species complex. If Amendments 73/77 are approved, the State would be authorized to regulate State-permitted vessels fishing for dark rockfish in both State and Federal waters. The directed fishery for dark rockfish under the PSR complex quota category currently occurs in State waters. This fishery is relatively small and all vessels directly participating in it are permitted under the laws of the State. Typically, the vessels also are small and participants land their catch at shoreside processing plants in Alaska. Dark rockfish also are taken as incidental catch in other federally managed fisheries, including trawl and jig gear fisheries targeting pelagic shelf rockfish in the GOA, the trawl Atka mackerel fishery in the Aleutian Islands, and the hook-and-line and trawl gear 
                    ( print page 55012)
                    fisheries for Pacific cod in the Bering Sea. Under Amendments 73/77, the State would develop management plans and regulations for dark rockfish similar to those that currently exist for black rockfish (
                    *Sebastes melanops*) and blue rockfish (
                    *Sebastes mystinus*), which were removed from NMFS' GOA groundfish FMP in 1998 under Amendment 46 (63 FR 11167, March 6, 1998). Notably, no adverse impacts or difficulties managing the groundfish fisheries off Alaska have occurred as a result of removing these two rockfish species from the GOA FMP. In managing black rockfish and blue rockfish, the State limits the gear types and areas open for directed fishing. It also limits the retention of black rockfish and blue rockfish to 5 percent of the retained catch of other groundfish species open for directed fishing. Similar gear, area, and incidental catch limits likely would be implemented by the State for dark rockfish. The retention of dark rockfish by a vessel permitted by the State in either State or Federal waters would be limited by State regulation. In 2007, all catcher vessels and 123 catcher/processors with Federal Fishery Permits (FFPs) participating in the groundfish fisheries off Alaska also held permits issued by the State. However, 21 additional catcher/processors with FFPs that participated in the Alaska groundfish fisheries did not hold State permits in 2007. These 21 catcher/processors would not be subject to State regulations governing dark rockfish caught in Federal waters off Alaska, and no Federal regulations governing the retention of dark rockfish would exist if dark rockfish were removed from the FMPs and Federal regulations. However, none of the catcher/processors has targeted dark rockfish and their incidental catch of this species is historically much lower (less than 1 percent) than the incidental catch limit the State would likely establish. NMFS does not expect these catcher/processors to target dark rockfish in the EEZ in the future because of the low abundance of these species in the EEZ. However, if concerns develop about the conservation of dark rockfish as a result of unregulated targeting on dark rockfish in the EEZ, NMFS would evaluate the circumstances to determine if emergency action were warranted. This situation, however, has not occurred with the removal of black rockfish and blue rockfish from the GOA FMP. To implement Amendments 73/77, NMFS proposes to revise the definition of “rockfish” under § 679.2 to exclude dark rockfish in both the GOA and BSAI. The definition for “other rockfish” would be amended to add a reference to Table 11 to part 679 because the quota category for “other rockfish” exists in both the BSAI and GOA and is referred to in the maximum retainable amounts tables for both areas (Tables 10 and 11). In addition, the definition of “other red rockfish” would be removed from § 679.2 because this rockfish quota category would no longer exist and the term is not used anywhere else in 50 CFR part 679. NMFS also proposes to correct the Latin name of dusky rockfish (
                    *Sebastes variabilis*), species code 172, in Table 2a to part 679, and to add dark rockfish (
                    *Sebastes ciliatus*), species code 173, to the non-FMP species listed in Table 2d to part 679. In Table 10 to part 679 (Gulf of Alaska Retainable Percentages), footnote 5 would be revised to correct the Latin name for dusky rockfish (
                    *Sebastes variabilis*). Footnote 8 would be revised to remove reference to 
                    *Sebastes*
                     and 
                    *Sebastolobus*
                     and to refer to the definition of “rockfish” at § 679.2. The proposed rule also would make minor editorial revisions to Table 10. The words “shallow water” and “deep water” would be revised to “shallow-water” and “deep-water” to standardize the preferred spelling of these terms. In note 1 to Table 10, the term “shortraker/rougheye” (171) would be removed because NMFS no longer has a species category or code in Table 2a to part 679 for the combination of shortraker and rougheye rockfish. Note 10 to Table 10 lists the species included in the aggregated forage fish category. The word “families” in the parentheses following the term “Aggregated forage fish” would be replaced with the word “taxa” because all species of the order Euphausiacea (krill) also are included in the list of aggregated forage fish. The word “taxa” refers to more general groupings of similar organisms and includes taxonomic families and orders. In Table 11 to part 679 (BSAI Retainable Percentages), footnotes 3 and 6 would be revised to remove reference to 
                    *Sebastes*
                     and 
                    *Sebastolobus*
                     and to refer to the definition of “rockfish” at § 679.2. This revision would exclude dark rockfish from these rockfish categories in the BSAI because dark rockfish are excluded from the definition of rockfish in § 679.2. Classification Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 73 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area, Amendment 77 to the Fishery Management Plan for Groundfish of the Gulf of Alaska, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined not to be a significant regulatory action for the purposes of Executive Order 12866. An initial regulatory review analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action were contained earlier in this preamble to this proposed rule. A summary of the analysis follows. A copy of this analysis is available from NMFS (see 
                    **ADDRESSES**
                    ). In 2006, one year immediately preceding the Council action recommending the removal of dark rockfish from the FMPs, there were 81 small catcher vessels that made landings of pelagic shelf rockfish from the GOA, taken as either targeted or incidental catch fish. No small catcher/processors made such landings. The 81 small catcher vessels included 74 that used hook-and-line, pot, or jig gear, and seven that used pelagic or non-pelagic trawl gear. The 81 small catcher vessels averaged about $400,000, in gross ex-vessel revenues from all sources. In 2006, one small catcher/processor and 36 small catcher vessels made incidental catch landings of pelagic shelf rockfish in the BSAI. All together, 35 vessels used hook-and-line, pot, or jig gear, and two used trawl gear. The 37 small vessels averaged about $1.4 million in gross revenues from all sources. The RFA requires that an IRFA contain a description of any significant alternatives to the proposed rule that would accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize any significant economic impact of the proposed rule on small entities. Two alternatives were analyzed: the status quo and the preferred alternative presented in this proposed rule. The preferred alternatives may have adverse impacts on operations targeting pelagic shelf rockfish in the Central GOA and in the West Yakutat District. However these impacts, if any, are expected to be small. The reductions in TACs will be modest; the preliminary specifications for 2009 suggest a drop of about 6% in 
                    ( print page 55013)
                    the Central GOA and about 7% in the West Yakutat District for the pelagic shelf rockfish complex as a result of removing dark rockfish from the complex. NMFS does not expect the action to have adverse impacts on operations targeting rockfish in the Southeast Outside and Western regions of the GOA, or in the BSAI because targeting does not appear to have been significant in these two areas. NMFS does not expect the action to have adverse impacts on operations taking dark rockfish as incidental catch because so few dark rockfish has been taken as incidental catch historically and because the State likely will continue to allow some retention of dark rockfish. In the Central GOA, most of the adverse impact would fall on participants in the Central GOA Rockfish Pilot Project. Because of the affiliations these operations have with cooperatives or large business entities through the quota management and allocation features of the pilot project, NMFS does not believe these operations can be considered small entities for the purpose of the RFA. However, it is possible that they would experience some adverse impact as described in the RIR because of the reduction in the TAC for pelagic shelf rockfish as a result of removing dark rockfish from the complex. For example, the ex-vessel price for dusky rockfish is currently about $0.25 per pound, and the potential loss of gross revenue in the Central GOA could range from $19,000 up to $171,000 as a result of removing dark rockfish from the complex. The primary alternative considered here, Alternative 1 - No Action, would not have these adverse impacts, but would not remove dark rockfish from the FMPs and, thus, does not accomplish the stated objective for the action to allow the State to assume management authority for dark rockfish catch by State-permitted vessels in State and Federal waters. The Council also considered a third alternative to the proposed action, but it was not carried forward for analysis. This alternative was to transfer management authority of dark rockfish to the State of Alaska while retaining the species under the Federal FMPs. Demersal shelf rockfish in Southeast Alaska is under a similarly delegated management program with the State of Alaska. A similar alternative was considered and rejected for black rockfish and blue rockfish under Amendment 46 to the GOA groundfish FMP. This alternative was not carried forward for dark rockfish because (1) State personnel would be required to comply with additional Federal management processes that may not be consistent with State procedures; (2) the State would need to meet both State and Federal requirements, which often prescribe different time-frames for management actions (e.g., notice, public meetings, and reports); and (3) the State did not believe it could meet the costly assessment requirements for managing a nearshore species, mandated under a Federal management plan. List of Subjects in 50 CFR Part 679 Alaska
Fisheries
 Dated: September 18, 2008. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
 For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
 1. The authority citation for 50 CFR 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, remove the definition for “Other red rockfish” and revise the definitions for “Other rockfish” and “Rockfish” to read as follows: § 679.2
  *Other rockfish*
                         (see Tables 10 and 11 to this part pursuant to § 679.20(c); see also “rockfish” in this section.) *Rockfish*
                         means: (1) 
                        *For the Gulf of Alaska:*
                         Any species of the genera 
                        *Sebastes*
                         or 
                        *Sebastolobus*
                         except 
                        *Sebastes ciliatus*
                         (dark rockfish); 
                        *Sebastes melanops*
                         (black rockfish); and 
                        *Sebastes mystinus*
                         (blue rockfish). (2) 
                        *For the Bering Sea and Aleutian Islands Management Area:*
                         Any species of the genera 
                        *Sebastes*
                         or 
                        *Sebastolobus*
                         except 
                        *Sebastes ciliatus*
                         (dark rockfish).
 3. Table 2a to part 679 is revised to read as follows: Table 2a to Part 679 — Species Codes: FMP Groundfish
Species Description
CodeAtka mackerel (greenling)
193Flatfish, miscellaneous (flatfish species without separate codes)
120FLOUNDERAlaska plaice
133Arrowtooth and/or Kamchatka
121Starry
129Octopus
870Pacific cod
110Pollock
270ROCKFISHAurora (
                            *S. aurora*)
185Black (BSAI) (
                            *S. melanops*)
142Blackgill (
                            *S. melanostomus*)
177Blue (BSAI) (
                            *S. mystinus*)
167Bocaccio (
                            *S. paucispinis*)
137Canary (
                            *S. pinniger*)
146Chilipepper (
                            *S. goodei*)
178China (
                            *S. nebulosus*)
149Copper (
                            *S. caurinus*)
138Darkblotched (
                            *S. crameri*)
159Dusky (
                            *S. variabilis*)
172Greenstriped (
                            *S. elongatus*)
135Harlequin (
                            *S. variegatus*)
176Northern (
                            *S. polyspinis*)
136Pacific Ocean Perch (
                            *S. alutus*)
141Pygmy (
                            *S. wilsoni*)
179Quillback (
                            *S. maliger*)
147Redbanded (
                            *S. babcocki*)
153( print page 55014)Redstripe (
                            *S. proriger*)
158Rosethorn (
                            *S. helvomaculatus*)
150Rougheye (
                            *S. aleutianus*)
151Sharpchin (
                            *S. zacentrus*)
166Shortbelly (
                            *S. jordani*)
181Shortraker (
                            *S. borealis*)
152Silvergray (
                            *S. brevispinis*)
157Splitnose (
                            *S. diploproa*)
182Stripetail (
                            *S. saxicola*)
183Thornyhead (all 
                            *Sebastolobus*
                             species)
143Tiger (
                            *S. nigrocinctus*)
148Vermilion (
                            *S. miniatus*)
184Widow (
                            *S. entomelas*)
156Yelloweye (
                            *S. ruberrimus*)
145Yellowmouth (
                            *S. reedi*)
175Yellowtail (
                            *S. flavidus*)
155Sablefish (blackcod)
710Sculpins
160SHARKSOther (if salmon, spiny dogfish or Pacific sleeper shark - use specific species code)
689Pacific sleeper
692Salmon
690Spiny dogfish
691SKATESBig
702Longnose
701Other (If longnose or big skate - use specific species code)
700SOLEButter
126Dover
124English
128Flathead
122Petrale
131Rex
125Rock
123Sand
132Yellowfin
127Squid
875Turbot, Greenland
134
 4. Table 2d to part 679 is revised to read as follows: Table 2d to Part 679 — Species Codes: Non-FMP Species
Species Description
CodeAbalone
860Albacore
720Arctic char, anadromous
521CLAMSButter
810Cockle
820Eastern softshell
842Geoduck
815Little-neck
840Razor
830Surf
812Coral
899CRABBox
900Dungeness
910Korean horsehair
940Multispina (
                            *Paralomis multispina*)
951Verrilli (
                            *Paralomis verilli*)
953Dolly varden, anadromous
531Eels or eel-like fish
210Giant grenadier
214GREENLINGKelp
194Rock
191Whitespot
192Grenadier (rattail)
213Jellyfish
625Lamprey, pacific
600Lingcod
130Lumpsucker
216Mussel, blue
855Pacific flatnose
260Pacific hagfish
212Pacific hake
112Pacific saury
220Pacific tomcod
250Prowfish
215Rockfish, black (GOA)
142Rockfish, blue (GOA)
167Rockfish, dark
173Sardine, Pacific (pilchard)
170Scallop, weathervane
850Scallop, pink (or calico)
851Sea cucumber
895Sea urchin, green
893Sea urchin, red
892Shad
180SHRIMPCoonstripe
964Humpy
963( print page 55015)Northern (pink)
961Sidestripe
962Spot
965Skilfish
715Smelt, surf
515Snails
890Sturgeon, general
680
 
 
 5. Tables 10 and 11 to part 679 are revised to read as follows: Table 10 to Part 679—Gulf of Alaska Retainable Percentages  
 
  
 
  
 
 Table 11 to Part 679—BSAI Retainable Percentages


BILLING CODE 3510-22-S [FR Doc. E8-22441 Filed 9-23-08; 8:45 am] BILLING CODE 3510-22-C