        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 050607152-5152-01; I.D. 052605B]
        RIN 0648-AT04
        Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Retention Standard

          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 to implement Amendment 79 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). This action is necessary to reduce bycatch and improve utilization of groundfish harvested by catcher/processor trawl vessels in the Bering Sea and Aleutian Island management area (BSAI) that are not listed American Fisheries Act (AFA) catcher/processors referred to throughout this proposed rule as non-AFA catcher/processors. This action is intended to promote the management objectives of the Improved Retention/Improved Utilization (IRIU) program, the FMP, and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

          DATES:
          Written comments on the proposed rule must be received by August 1, 2005.

          ADDRESSES:
          Written comments may be sent to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall. Comments may be submitted by any of the following methods:
          • E-mail: BSA79PR-0648-AT04@noaa.gov. Include in the subject line of email comments the following identifier: GRS. E-mail comments, with or without attachments, are limited to 5 megabytes;
          • Webform at the Federal e-Rulemaking Portal: http:www.regulations.gov. Follow the instructions at that site for submitting comments;
          • Mail to P.O. Box 21668, Juneau, AK 99802;
          • Fax: to (907) 586-7557; or
          • Hand Delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, AK.

          Comments regarding the burden-hour estimates or other aspects of the collection-of information requirements contained in this rule should be submitted in writing to NMFS at the ADDRESSES above, and e-mail to David Rostker, OMB, by e-mail at David_Rostker@omb.eop.gov or by fax to 202-395-7285.

          Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from the same mailing address above or from the NMFS Alaska Region website at www.fakr.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Jason Anderson at Jason.anderson@noaa.gov or Jeff Hartman at Jeff.hartman@noaa.gov. Either may be contacted at (907) 586-7228.

        SUPPLEMENTARY INFORMATION:
        Background
        NMFS manages the U.S. groundfish fisheries of the BSAI in the Exclusive Economic Zone under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP pursuant to the 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.

        Public comments are being solicited on Amendment 79 through the end of the comment period specified in the notification of availability of the FMP amendment (NOA). The NOA published in the Federal Register on June 2, 2005 (70 FR 32287), with comments on the amendment invited through August 1, 2005. Public comments on the proposed rule must be received by the end of the comment period on the amendment, as published in the NOA, to be considered in the approval/disapproval decision on the amendment. All comments received by the end of the comment period on the amendment, whether specifically directed to the amendment, or the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, written comments must received by the close of business on the last day of the comment period/ that does not mean postmarked or otherwise transmitted by that date.
        This proposed action is one of several adopted by the Council in recent years to decrease regulatory and economic discards and increase catch utilization in the BSAI groundfish fisheries. Amendment 49 to the FMP was implemented on January 3, 1998 (62 FR 63880), establishing IRIU standards for pollock and Pacific cod beginning January 3, 1998, and for rock sole and yellowfin sole (flatfish) beginning January 1, 2003. In 2001, the Council determined that cost, market and logistical constraints would prevent non-AFA trawl catcher/processors from being able to comply with IRIU requirements for flatfish. In June 2002, the Council developed a problem statement for the development of alternatives to address the pending effective date of IRIU regulations for flatfish. In October 2002, the Council adopted Amendment 75 to the FMP which delayed the effective date of IRIU requirements for flatfish harvested in the BSAI until June 1, 2004. The Council's intent for this delay was to provide additional time for the development of bycatch reduction measures that could be more practically and effectively applied to the non-AFA trawl catcher/processor sector.
        In October 2002, the Council also initiated the analysis of four new FMP amendments that were intended to augment or replace IRIU regulations for BSAI flatfish prior to the June 2004 effective date for this program. Amendment “B” would have created flatfish discard limits for the flatfish fisheries; Amendment 76 would exempt fisheries with less than a 5-percent IRIU flatfish bycatch rate from IRIU flatfish regulations; Amendment 79 (the proposed action) would establish a minimum groundfish retention standard (GRS); and Amendment 80 (as modified at the October 2004 Council meeting) would allocate specified target species and prohibited species catch (PSC) limits to non-AFA trawl catcher/processors and allow these vessels to form one or more fishery cooperatives.

        NMFS partially approved Amendment 75 on September 2, 2003 (68 FR 52412), by approving the removal of the January 1, 2003 effective date for the IRIU flatfish program from the FMP, and by disapproving the adjusted effective date of June 1, 2004. NMFS's decision on Amendment 75 had the effect of indefinitely delaying the IRIU flatfish program. With the indefinite delay of this program, Amendment 76 no longer had practical application in the BSAI and Amendment “B” was rejected by the Council as infeasible following discussions between industry representatives and fishery managers. However, the Council continued to develop Amendments 79 and 80. Amendment 79, which this rule proposes to implement, was adopted by the Council in June 2003. If approved, it would supercede Amendment 75. The Council continues to develop Amendment 80.

        As part of Amendment 79, the Council adopted a revision to the maximum retainable amount (MRA) for pollock harvested by non-AFA vessels in the BSAI that would allow for increased retention of pollock incidentally harvested by non-AFA vessels. Before June 2003, the proposed GRS and pollock MRA revision were component parts of the same action to reduce discards in the BSAI. The Council recognized that the MRA change could have immediate benefits for reducing discard in groundfish fisheries however, and requested NMFS to expedite the proposed pollock MRA revision as a separate action. The revised MRA for pollock harvested by non-AFA vessels in the BSAI was implemented by a final rule published in the Federal Register on June 14, 2004 (69 FR 32901).
        GRS Program
        The Council's analysis of groundfish retention rates in the BSAI fishery revealed that vessels in the non-AFA trawl catcher/processor sector had the lowest retained catch rates of any groundfish trawl fishery in the BSAI. The EA/RIR/IRFA for Amendment 79 reported that the non-AFA trawl catcher/processor sector had a retained groundfish catch rate of 75.1 percent in 2001. However, during the same year in the BSAI, AFA trawl catcher/processors had a retained catch rate of 99.1 percent, pot catcher/processors had a retained catch rate of 93.5 percent and longline catcher/processors had a retained catch rate of 85.4 percent. In 2001, the non-AFA trawl catcher/processor sector accounted for 67 percent of all discards in the BSAI. For these reasons, the GRS program that would be authorized under Amendment 79 focuses on this sector for improved groundfish retention rates and reduced bycatch.
        This action proposes to implement an annual GRS for non-AFA trawl catcher/processors equal to or greater than 125 ft (38.1 m) length overall (LOA). The percent of groundfish retained would be a percent calculated as a specified ratio of the round-weight equivalent of total retained groundfish to total groundfish catch. The owners or operators of these vessels would be required to meet this standard on an annual basis. The use of total groundfish catch in the denominator of the calculation, instead of total catch, is proposed to avoid a potential incentive to target on non-groundfish species and to recognize that retention of non-groundfish often is either impractical or prohibited. Further, the catch of groundfish that are required to be treated as prohibited species under 50 CFR 679.20(d)(2) would be removed from the GRS calculation for individual vessels. By removing groundfish that are in prohibited species status, vessel operators would not be held accountable for retaining catch that they are required to discard. Groundfish species closed to directed fishing would be included in the calculation for percent of groundfish retained, because species taken incidental to target species may be retained up to the MRA (50 CFR 679.20(e)). This constraint would provide an incentive to reduce incidental catch while providing flexibility to catch target species. The annual GRS ratios as adopted by the Council are shown below:

            TABLE 1. GROUNDFISH RETENTION STANDARD

              GRS Schedule

              Annual GRS

            2005
            65%

            2006
            75%

            2007
            80%

            2008 and each year after
            85%

        The Council considered several alternatives to an annual GRS. The Council's preferred alternative, however, included an annual GRS because it would increase the number of vessels that could comply with the GRS program and addressed NMFS enforcement concerns. The EA/RIR/IRFA prepared for this action indicates that, in general, more vessels would be in compliance with the GRS standard as the period over which the GRS is calculated is increased from a weekly assessment period to a year. Additionally, NMFS Enforcement expressed concerns that some of the calculation periods for the GRS under consideration by the Council (for example, weekly) were infeasible because recordkeeping and reporting processes did not allow NMFS to match catch and production estimates over those time periods.

        The purpose of the incremental increase of the annual GRS would be to provide additional time for vessels to adjust fishing operations to lower bycatch practices. If Amendment 79 is approved, NMFS anticipates the GRS to be effective January 20, 2006, and vessels would be required to retain at least 75 percent of their groundfish catch in the initial year of the program. The Council intended NMFS to approve Amendment 79 and implement the GRS program by 2005 with a GRS of 65 percent. However, Secretarial review of Amendment 79 and associated rulemaking was not initiated prior to the start of the 2005 fishing year. Because the GRS would be enforced on the basis of a calendar year, the 2006 fishing year would be the earliest the GRS program could be implemented. The EA/RIR/IRFA prepared for this action indicates that 16 BSAI non-AFA trawl catcher/processor vessels would be regulated by the GRS program. Data presented in the EA/RIR/IRFA to evaluate the effects of this action on these 16 vessels demonstrates that in 2001 the 16 non-AFA trawl catcher/processors retained 75.1 percent of their total groundfish catch. Furthermore, the analysis estimates that overall, the vessels regulated by this proposed action would retain 76.3 percent of total groundfish catch in 2006. For 2006, the analysis estimates that five of these 16 vessels would need to increase total groundfish retention to meet the 75-percent standard. NMFS understands that some vessels may incur an additional burden to meet a GRS of 75 percent rather than 65 percent for the first year of the program. The EA/RIR/IRFA and Council anticipate that this additional burden would be minimal because this sector has demonstrated groundfish retention amounts that frequently exceed 65 percent and have met the 75-percent level in 2001. It is NMFS's opinion that the starting level of 75 percent in 2006 is consistent with Council intent on this action and practicable according to the analysis presented on National Standards 7 and 9 in the EA/RIR/IRFA. However, NMFS requests public comment on the implementation of the GRS program at 75 percent in 2006. In the event that NMFS determines, based on public comment, that the initiation of the GRS at 75 percent is not consistent with Council intent to gradually increase the GRS regardless of when the program is implemented, an initial GRS of 65 percent may be substituted for the 75 percent GRS in the final rule.
        The FMP would establish the GRS as a tool for reducing discards of groundfish for any BSAI groundfish fishery sector. However, the Council specified that regulations implementing a GRS would only apply to non-AFA trawl catcher/processors that are 125 ft (38.1 m) LOA or greater. Data provided in the EA/RIR/IRFA indicate that other BSAI groundfish trawl sectors consistently achieve or exceed these standards. In 2001, non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA accounted for only 8 percent of the total catch of all non-AFA trawl catcher/processors and 7 percent of the retained catch. Given the relatively small contribution to this sector's overall harvest and recognizing that compliance costs associated with observers and scale monitoring requirements would be relatively higher for vessels less than 125 feet (38.1 m) LOA, the Council chose to exclude these vessels from the proposed GRS program.
        The Council also specified that regulations implementing the GRS would require vessels subject to the GRS program to create products that yield at least 15 percent from each retained fish. Current regulations at § 679.27(i) set forth a 15-percent utilization requirement for all IRIU species. This action proposes to add groundfish listed in Table 2a to Part 679, except for any groundfish on prohibited species status, as IRIU species. Non-AFA trawl catcher/processors equal to or greater than 125 ft (38.1 m) LOA would be required to meet these current utilization standards for retained groundfish species used in the calculation for percent of retained groundfish.
        Monitoring and Enforcement of the GRS
        The GRS would be enforced on an individual vessel basis as opposed to a sector basis, so that those vessels that chronically fail to meet the standard could not impose a penalty on those vessels that consistently meet these requirements. All regulated vessels would be required to use NMFS-approved scales to determine the weight of total catch and either obtain sufficient observer coverage to ensure every haul is observed for verification that all fish are weighed or use an alternative scale use verification plan approved by NMFS. Each vessel would be required to provide a single location for observers to collect samples to reduce the potential of sample bias. Observer sampling of each haul would be necessary to determine the percentage of the total catch that is comprised of groundfish. This information would be used to estimate total groundfish weight used in the denominator of the GRS calculation. The round weight of retained groundfish catch would be calculated using NMFS standard product recovery rates (PRRs) set forth in regulations at Table 3 to Part 679. For each product/species combination, retained tonnage would be equal to primary product tonnage divided by the applicable PRR. For primary products that do not have a PRR specified in Table 3, NMFS would use best available data until a PRR could be established in regulation. Since all IRIU species must meet minimum utilization requirements at § 679.27(i), any primary product with a PRR less than 15 percent of the total weight of retained or lawfully transferred products produced from catch or receipt of that IR/IU species would not comply with this action. Further Council action and rulemaking would be required to include any primary product that could not meet these utilization standards.
        NMFS proposes to prohibit the mixing of catch from two or more hauls prior to sampling by an observer. NMFS proposes this prohibition because all hauls must be observed and sampled, and it is not possible to obtain a discrete sample if hauls are mixed. Non-AFA catcher/processors using trawl gear occasionally mix catch from two or more hauls prior to sampling by an observer. However, the amount of groundfish retained under the GRS would be calculated based on the proportion of groundfish in each haul. To determine the proportion of groundfish in each haul, each haul would be sampled by an observer for species composition. The proportion of groundfish in each species composition sample would be extrapolated to the total haul weight. For purposes of calculating the percent of retained groundfish, NMFS would not be able to determine accurately the total haul weight of groundfish or species composition for a specific haul if two or more hauls are mixed.
        Recent enforcement actions concerning intentional presorting of catch to bias observed catch rates of Pacific halibut document the incentive for biasing observer samples to optimize groundfish catch relative to constraining PSC or other groundfish catch. However, NMFS believes the ability to bias observer samples could be reduced under the GRS in comparison with the status quo by implementing the monitoring provisions that would be required under this rule. These include space and catch access provisions that would be approved by NMFS and that would allow observers to monitor all catch between the bin and the scale used to weigh total catch.
        Recent enforcement actions also have identified an issue with observers not being willing to serve as witnesses in enforcement actions because of inconvenience, cost, and the need for the observer to refamiliarize herself or himself with the data and other records relating to the alleged violation. This could be a particular problem when numerous observers may have information regarding evidence necessary to prove the violations of the GRS. To address this issue, and to acknowledge the critical role observers play in effective management and enforcement of Alaska fisheries, NMFS intends to implement a program that provides for payment of witness fees to any observer who, at the request of an enforcement attorney, assists in the prosecution of an enforcement action. NMFS believes that this program will mitigate, to some degree, the inconvenience and other detriments that may otherwise dissuade an observer from assisting the government in proving its case.
        Authority for Bycatch Reduction, the National Standards and the GRS
        The EA/RIR/IRFA for Amendment 79 (see ADDRESSES), provides information on Magnuson-Stevens Act requirements to reduce bycatch and increase retention of catch. The analysis also highlights the relevance of National Standards 7 and 9 in the selection of the Council's preferred alternative. In their deliberations, the Council stated that its adoption of Amendment 79 balances conservation through reductions in discards (National Standard 9) and minimizes costs where practicable (National Standard 7) by enforcing higher retention rates only on the specific section of the fleet with the largest problem.

        Reduction of bycatch for fisheries and other living marine resources has become a national and global concern. For example, on March 6, 2003, NMFS issued a National Bycatch Strategy to address issues related to the management of bycatch within the Nation's fisheries. To provide the authority for programs like the GRS, Congress amended the Magnuson-Stevens Act to require each fishery management plan approved by the Secretary to “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority- (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided.” Also, NMFS regulations at 50 CFR part 600.350(d)(3) provide guidance on factors that should be considered in determining the practicability of a particular management action to minimize bycatch or the mortality of bycatch. Relevant factors were considered and assessed in the EA/RIR/IRFA prepared for this action and are summarized below.
        Comparing GRS Tradeoffs
        The Council deliberated on Magnuson-Stevens Act requirements to reduce bycatch and concluded that progress made in adhering to the National Standards and potential consumer and environmental benefits from improved retention and utilization of groundfish offset the costs of enforcement, increased observers, vessel modifications, operational adjustments and recordkeeping and reporting. The EA/RIR/IRFA describes these conclusions relative to conservation goals through reductions in discards (National Standard 9) and minimization of costs where practicable (National Standard 7) by enforcing higher retention rates only on the specific section of the fleet with a recent history of higher discard rates relative to other BSAI groundfish fisheries. The analysis notes that the growing national and regional emphasis on reduction of discards reflects national and regional consumer interest in and potential for non-market, non-consumptive, or environmental benefits for this type of program. The analysis also recognizes the technical difficulty of quantifying those potential benefits. The Council also evaluated a range of alternatives to Amendment 79 that would have imposed greater compliance costs on industry, such as a proposal for full retention of specified flatfish species in the original IRIU program implemented under Amendment 49. The Council considered and rejected recommendations to enforce the GRS on other BSAI groundfish sectors, concluding that an application of the action to the target fleet with the highest discard rates would provide the greatest benefit in bycatch reduction through the GRS program. At the same time, the preferred alternative also would mitigate the cost of the program on the industry and sector it most directly impacts. For example, the preferred alternative would mitigate the adverse impacts of the program by excluding non-AFA trawl catcher/processor vessels less than 125 ft (38.1 m) LOA. Non-AFA trawl catcher/processor vessels have “specific and particular operational concerns” associated with the enforcement and monitoring requirements of the GRS. It also gradually would phase in the GRS program over time which would allow the affected vessels to adjust to the retention requirements. This phase-in would provide that portion of the industry most impacted by GRS requirements with the opportunity to continue targeting rock sole and yellowfin sole, while working to reduce discards in these fisheries.
        Description of Regulations Specific to the GRS Program

        Current recordkeeping and reporting regulations at § 679.5(a)(7)(iv)(C)(3) require the owners or operators of a catcher/processor using trawl gear to record an estimate of total round weight of groundfish by haul in a NMFS daily cumulative production logbook (DCPL). Other regulations, including those that would implement monitoring requirements for the GRS, require all catch on certain catcher/processors to be weighed on NMFS-approved scales. Proposed revisions to regulations at § 679.5(a)(7)(iv)(C)(3) would require all vessel owners or operators of vessels subject to the GRS to record in the DCPL the total catch scale weight for each haul. This would increase the quality of data available to NMFS managers and provide NMFS enforcement with a tool to verify total catch weight for vessels subject to the GRS program.
        Proposed regulations at § 679.7(m) establish prohibitions specific to the GRS program. Regulations at § 679.7(m)(1) would prohibit owners or operators from discarding groundfish in an amount greater than allowed under the GRS program.
        Regulations at § 679.7(m)(2) would prohibit owners or operators from failing to submit, submitting inaccurate information, or intentionally submitting false information that relates to the GRS program.
        Regulations at § 679.7(m)(3) would (1) prohibit an owner or operator from processing or discarding any catch that was not weighed on a NMFS-approved scale that complies with requirements described at § 679.28(b), (2) prohibit the sorting of catch prior to the catch passing over the scale, and (3) require that all catch be available to be sampled by an observer.
        Regulations at § 679.7(m)(4) would prohibit the processing of any catch by a vessel that does not comply with observer sampling station requirements described at § 679.28(d). Also, as previously described, regulations at § 679.7(m)(5) would prohibit the mixing of catch from two or more hauls.
        Regulations at § 679.27(b)(4) would describe the specific groundfish species to be used in the GRS calculation. This would include all species listed in Table 2a to 50 CFR part 679, except for listed groundfish species that are in prohibited species status. By establishing these species as IRIU species, they would be subject to the 15-percent utilization requirements currently found at § 679.27(i). Regulations at § 679.27(j)(1) would also describe the vessels that would be required to comply with the GRS program and the time period for which the GRS would be calculated.
        Regulations at § 679.27(j)(2)(i) would show the equation used for the GRS calculation and describe the variable and source of the variable used in each component of the calculation. Also, § 679.27(j)(2)(ii) would describe the schedule for increasing GRS percentages from 2006 through 2008 and beyond. As described above, the GRS is proposed to be implemented in 2006 at the 2006 level of 75 percent, although NMFS specifically requests public comment on whether a first year rate of 65 percent may be more appropriate.
        Regulations at § 679.27(j)(3) would describe the monitoring requirements for vessels subject to the GRS program. Section 679.27(j)(3)(i) would require vessels subject to the GRS program to comply with minimum observer coverage requirements at § 679.50(c)(6). These requirements are described below. Regulations at § 679.27(j)(3)(ii) would require vessels to weigh each haul on a NMFS-approved scale and comply with catch weighing requirements described at § 679.28(b). Also, the vessel owner or operator would be required to ensure that catch from each haul is available to be sampled by an observer from a single location at a single collection point. Regulations at § 679.27(j)(3)(iii) would require the owner or operator to provide an observer sampling station that meets requirements described at § 679.28(d).

        Vessels required to comply with the GRS program also may operate in areas other than the BSAI. Total retained groundfish is calculated from total fish product divided by the PRR for each species. For purposes of enforcing GRS requirements, it is necessary to separate fish or fish product subject to the GRS program from fish or fish product not subject to the GRS program. Regulations at § 679.27(j)(4) would require all owners or operators required to comply with the GRS program to either (1) offload or transfer all fish or fish product prior to harvesting fish outside of the BSAI; or (2) ensure that the vessel is in compliance with recordkeeping and reporting and monitoring requirements described above and at § 679.5(a)(7)(iv)(C) and § 679.27(j)(3) at all times when fishing outside the BSAI. These requirements will improve the enforcement of this proposed action by assuring that all hauls used to estimate the GRS are observed, and that a record is created by the vessel operator to compare with the observer record.
        Regulations at § 679.27(j)(5) would require all vessels required to comply with the GRS program that have BSAI groundfish on board, groundfish product on board, or receive deliveries of unsorted catch from vessels not required to comply with the GRS program, to comply with monitoring requirements described above and at § 679.27(j)(3). For purposes of enforcing GRS requirements, this requirement is necessary to separate fish or fish product subject to the GRS program from fish or fish product not subject to the GRS program.
        Regulations at §§ 679.50(c)(6)(i) and (c)(6)(ii) would describe observer coverage and observer workload requirements for vessels subject to the GRS program. The owner or operator of a vessel subject to the GRS program would be required to provide two Level 2 NMFS-certified observers, at least one of which must be certified as a lead Level 2 observer, for each day the vessel is used to harvest or process fish in the BSAI. The owner or operator would be required to provide more than two observers if workload restrictions would otherwise preclude sampling duties. The time required for an observer to complete sampling, data recording, and data communications would not be permitted to exceed 12 hours in a 24-hour period and the observer would not be permitted to conduct sampling duties for more than 9 hours in each 24-hour period. NMFS could authorize an alternative processing plan that could allow the vessel to carry only one lead Level 2 NMFS-certified observer if the vessel owner or operator supplies vessel logbook or observer data to NMFS that demonstrates these duties can be completed within these workload restrictions. NMFS would not authorize an alternative processing plan if it would require the observer to divide 12-hour shifts into shifts of less than 6 hours.
        Classification
        At this time, NMFS has not determined that the FMP amendment that this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, 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 purposes of Executive Order 12866.

        NMFS prepared an initial regulatory flexibility analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act. 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 are provided above. A copy of the IRFA is available from NMFS (see ADDRESSES). A summary of the analysis follows.
        This proposed action is intended to decrease regulatory and economic discards and increase catch utilization in the BSAI groundfish fisheries by implementing an annual GRS for non-AFA trawl catcher/processors equal to or greater than 125 ft (38.1 m) LOA. The percent of groundfish retained would be a percent calculated as a specified ratio of the round-weight equivalent of total retained groundfish to total groundfish catch. The GRS would gradually increase from 75 percent in 2006 to 85 percent in 2008.
        The GRS program would apply only to non-AFA catcher/processors using trawl gear that are 125 ft (38.1 m) LOA or greater. Sixteen head-and-gut trawl catcher/processors meet these criteria. Based on the best available data, it is improbable that any of these vessels are small entities. However, NMFS does not have the level of data and information to make a statistically confident estimation of the number of small entities affected by this proposed action. Therefore, an IRFA has been prepared.
        Alternative 1 described in the EA/RIR/IRFA is the status quo alternative. Current regulations regarding retention and discards would remain in effect.
        Alternative 2 would establish a GRS of 70 percent. The standard would apply to non-AFA trawl catcher/processors 125 ft (38.1 m) LOA or greater and enforced at the sector level. Compliance with the GRS would be determined at the end of a fishing year. The MRA for pollock would be increased to 35 percent for all non-AFA trawl catcher/processors, including vessels less than 125 ft (38.1 m) LOA, and compliance with the pollock MRA would be monitored and enforced on each vessel at the end of each offload. NMFS-approved scales, a certified observer sampling station, and observer coverage of every haul would be used to measure and verify total catch. Alternative processing plans, approved by NMFS, could be substituted for observer coverage of every haul. Retained catch would be calculated using NMFS standard PRRs.
        Alternative 3 would establish a GRS of 85 percent for January through May of each calendar year. The GRS would increase to 90 percent for the remainder of the year. The GRS would apply to individual non-AFA catcher/processors 125 feet (38.1 m) LOA or greater. Non-AFA catcher/processors less than 125 feet (38.1 m) LOA would be exempt from the GRS program if their weekly production is less than 600 mt. The MRA for pollock would be revised so that it is enforced at any time. Compliance with the GRS would be monitored and enforced at the end of each week for each area and gear type. NMFS-approved scales, a certified observer sampling station, and observation of every haul would be used to measure and verify total catch. Retained catch would be calculated using standard PRRs.
        Alternative 4 is the preferred alternative, and would implement a gradually increasing annual GRS for non-AFA trawl catcher/processors equal to or greater than 125 ft (38.1 m) length overall (LOA).  This alternative, including provisions to monitor and enforce this action, is described in further detail above in the preamble to this proposed action.
        Retaining additional groundfish is not expected to generate additional revenues, and could result in lower revenues if these fish displace higher value fish. Vessels subject to the GRS program could incur operating costs associated with holding, processing, transporting, and transferring fish that are of relatively low value. However, changes in technology, fishing techniques, and markets could reduce these potential costs.

        Vessels subject to this proposed action would be required to comply with the monitoring components described in the preamble above. NMFS estimates 7 of the 16 vessels subject to the GRS program would be required to install NMFS-approved flow scales, which are estimated to cost approximately $50,000 each. Equipment necessary to comply with observer sampling station requirements is estimated to cost between $6,000 and $12,000. Installation of this equipment is estimated to cost between $20,000 and $100,000. Under the GRS program, every haul would be required to be available for sampling by a NMFS-certified observer. This requirement would likely necessitate an additional observer on each vessel, which is estimated to cost $82,000 per vessel per year.
        This action proposes to revise recordkeeping and reporting requirements for vessels subject to the GRS. Proposed revisions to regulations would require all vessel owners or operators of vessels subject to the GRS to record in the DCPL the total catch scale weight for each haul. This would increase the quality of data available to NMFS managers and provide NMFS enforcement with a tool to verify total catch weight for vessels subject to the GRS program.
        The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.
        This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under OMB No. 0648-0330. Public reporting burden per response for: at-sea scale inspection report/sticker is estimated to average 6 minutes; record of daily scale tests is estimated to average 45 minutes; printed output of at-sea scale weight is estimated to average 45 minutes; observer sampling station inspection request is estimated to average 2 hours; and prior notice to observer of scale test is estimated to average 2 minutes.
        This proposed rule contains a collection-of-information requirement subject to the PRA and which has been approved by OMB under control number OMB 0648-0213. Public reporting burden for catcher/processor trawl gear daily cumulative production logbook is estimated to average 30 minutes per response.
        Estimated response times include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

        Public comment is sought regarding: whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries, Reporting and recordkeeping requirements.

          Dated: June 10, 2005.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended to read 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.; 1540(f); 1801 et seq.; 1851 note; 3631 et seq.

        2. In § 679.2, a definition of “Groundfish Retention Standard (GRS)” is added to read as follows:

          § 679.2
          Definitions.

            Groundfish Retention Standard (GRS) means the retention and utilization standard for groundfish described at § 679.27(j) of this part.

        3. In § 679.5, paragraph (a)(7)(iv)(C)(3) is revised to read as follows:

          § 679.5
          Recordkeeping and reporting (R&R).
          (a) * * *
          (7) * * *
          (iv) * * *
          (C) * * *

              Enter ...
              In a ...
              If a ...

              * * * * * * *

              (3) Estimated total round weight of groundfish by haul. If the owner or operator of the vessel is required to comply with the GRS program described at § 679.27(j), the operator or manager must enter the round weight total of all catch by haul as measured by the NMFS-approved scale.
              Trawl DCPL
              C/P

              * * * * * * *

        4. In § 679.7, paragraph (m) is added to read as follows:

          § 679.7
          Prohibitions.

          (m) Prohibitions specific to GRS. It is unlawful for the owner or operator of a catcher/processor that is 125 ft (38.1 m) LOA or longer and not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI to:
          (1) Retain an amount of groundfish during a fishing year that is less than the amount of groundfish required to be retained under the GRS program described at § 679.27(j).
          (2) Fail to submit, submit inaccurate information, or intentionally submit false information on any report, application or statement required under this part.
          (3) Process or discard any catch not weighed on a NMFS-approved scale that complies with the requirements of § 679.28(b). Catch must not be sorted before it is weighed and each haul must be available to be sampled by an observer for species composition.
          (4) Process any groundfish without an observer sampling station that complies with § 679.28(d).
          (5) Combine catch from two or more hauls.

        5. In § 679.27, paragraphs (b)(4) and (j) are added to read as follows:

          § 679.27
          Improved Retention/Improved Utilization Program.

          (b) * * *

          (4) All species listed in Table 2a to this part for purposes of the GRS program described in § 679.27(j), except for groundfish in prohibited species status at the end of each reporting week.

          (j) Groundfish retention standard—(1) Applicability. The operator of a catcher/processor that is 125 ft (38.1 m) LOA or longer, not listed in § 679.4(l)(2)(i), and using trawl gear must comply with the GRS set forth under § 679.27(j)(2)(ii) while fishing for or processing groundfish caught from the BSAI between January 1 and December 31 of each year. The owner of a catcher/processor 125 ft (38.1 m) LOA or longer is required to ensure that the operator complies with the GRS program set forth under § 679.27(j)(2)(ii). No part of the GRS program supersedes minimum retention or utilization requirements for IR/IU species found in this section.
          (2) Percent of groundfish retained calculation. (i) For any fishing year, the percent of groundfish retained by each vessel identified under paragraph (j)(1)(i) of this section would be calculated using the following equations:

            EP16JN05.009

          Substituting the value for GFroundweight into the following equation,

            GFR% = (GFroundweight/TotalGF)*100
          Where:

            GFroundweight = the total annual round weight equivalent of all retained product weights for each IR/IU groundfish species.

            PWspecies
            n = the total annual product weight for each groundfish species listed in Table 2a to this part by product type as reported in the vessel's weekly production report required at § 679.5(i).

            PRRspecies
            n = the standard product recovery rate for each groundfish species and product combination listed in Table 3 to Part 679.

            GFR% = the groundfish retention percentage for a vessel calculated as GFroundweight divided by the total weight of groundfish catch.

            TotalGF = the total groundfish catch weight as measured by the flow scale measurement, less any non-groundfish, PSC species or groundfish species on prohibited species status under § 679.20.
          (ii) The following table displays annual minimum groundfish retention requirements for each vessel required to comply with the GRS program under paragraph (j)(1)(i) of this section:

              GROUNDFISH RETENTION STANDARD

                GRS Schedule

                Annual GRS

              2006
              75%

              2007
              80%

              2008 and each year after
              85%

          (3) Monitoring requirements—(i) Observer coverage requirements. In addition to complying with minimum observer coverage requirements at § 679.50(c), the owner or operator of a vessel required to comply with the GRS program must comply with observer coverage requirements as described at § 679.50(c)(6) at all times the vessel is used to harvest groundfish in the BSAI with trawl gear.
          (ii) Catch weighing. For each haul, all catch caught by a vessel required to comply with the GRS program must be weighed on a NMFS-approved scale and made available for sampling by a NMFS certified observer at a single location. The owner or operator of a vessel required to comply with the GRS program must ensure that the vessel is in compliance with the scale requirements described at § 679.28(b), that each haul is weighed separately, and that no sorting of catch takes place prior to weighing. All weighed catch must be recorded as required at § 679.5(a)(7)(iv)(C).
          (iii) Observer sampling station. The owner or operator of a vessel required to comply with the GRS program must provide an observer sampling station as described at § 679.28(d) and the owner of a vessel required to comply with the GRS program must ensure that the vessel operator complies with the observer sampling station requirements described at § 679.28(d) at all times the vessel is used to harvest groundfish in the BSAI. In addition to the requirements at § 679.28(d)(7)(ii), observers must be able to sample all catch from a single point along the conveyer belt conveying unsorted catch, and when standing where unsorted catch is collected, the observer must be able to see that no catch has been removed between the bin and where unsorted catch is collected.
          (4) Requirements for vessels that also harvest groundfish outside of the BSAI. The operator of a vessel required to comply with the GRS program must offload or transfer all fish or fish product prior to harvesting fish outside the BSAI, unless the operator of the vessel is in compliance with the recordkeeping and reporting and monitoring requirements described at § 679.5(a)(7)(iv)(C) and § 679.27(j)(3) at all times the vessel harvests or processes groundfish outside the BSAI.
          (5) Requirements for vessels receiving deliveries of unsorted catch. The owner or operator of a vessel required to comply with § 679.27(j) that receives deliveries of unsorted catch while processing or possessing fish subject to the GRS program must comply with § 679.27(j)(3) while processing deliveries of unsorted catch.

        6. In § 679.50, paragraph (c)(6) is added to read as follows:

          § 679.50
          Groundfish Observer Program applicable through December 31, 2007.

          (c) * * *
          (6) Catcher/processors 125 ft (38.1 m) LOA or longer and not listed in § 679.4(l)(2)(i) using trawl gear in the BSAI—(i) Coverage requirement. The owner or operator of a catcher/processor using trawl gear and not listed in § 679.4(l)(2)(i) must provide at least two level 2 NMFS-certified observers, at least one of which must be certified as a lead level 2 observer, for each day that the vessel is used to harvest or process groundfish in the BSAI. More than two observers are required if the observer workload restriction at paragraph (c)(6)(ii) of this section would otherwise preclude sampling as required under § 679.27(j)(3). NMFS may authorize the vessel to carry only one lead level 2 observer if the vessel owner or operator supplies vessel logbook or observer data that demonstrate that one level 2 observer can complete sampling, data recording, and data communication duties within the workload requirements described in § 679.50(c)(6)(ii) under an alternative processing plan. NMFS will not authorize an alternative processing plan with only one lead level 2 observer if it would require the observer to divide a 12-hour shift into shifts of less than 6 hours.
          (ii) Observer work load. The time required for the observer to complete sampling, data recording, and data communication duties must not exceed 12 consecutive hours in each 24-hour period, and the observer must not conduct sampling duties more than 9 hours in each 24-hour period.

      [FR Doc. 05-11918 Filed 6-15-05; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 040726216-4216-01; I.D. 070804B]
        RIN 0648-AS49
        Atlantic Highly Migratory Species; Reducing Sea Turtle Interactions With Fishing Gear

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

          ACTION:
          Advance notice of proposed rulemaking (ANPR); request for comments.

          SUMMARY:
          NMFS is considering adjustments to the regulations governing the Atlantic highly migratory species (HMS) pelagic longline fishery based upon a June 1, 2004, Biological Opinion (2004 BiOp) regarding Atlantic sea turtles. NMFS issues this ANPR to request comments on potential regulatory changes to further reduce bycatch and bycatch mortality of sea turtles in the Atlantic pelagic longline fishery as well comments on as the feasibility of framework mechanisms to address unanticipated increases in sea turtle interactions and mortalities, should they occur.

          DATES:
          Written comments on this ANPR must be received no later than October 12, 2004.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • Email: ID070804B@noaa.gov. Include in the subject line the following identifier: I.D. 070804B.
          • Federal e-Rulemaking Portal: http://www.regulations.gov.
          • Mail: Christopher Rogers, Chief, Highly Migratory Species Management Division (F/SF1), NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
          • Fax: (301)713-1917.

          Related documents, including the 2004 BiOp, are available upon request at the mailing address noted above or on the HMS Management Division's web page at: http://www.nmfs.noaa.gov/sfa/hms. In addition, the main resource laws that guide NMFS can be found at www.nmfs.noaa.gov/legislation.htm.

          FOR FURTHER INFORMATION CONTACT:
          Russell Dunn, 727-570-5447; fax: 727-570-5656.

        SUPPLEMENTARY INFORMATION:

        The Atlantic tuna and swordfish fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). Atlantic sharks are managed under the authority of the Magnuson-Stevens Act. The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP)and Amendment 1 to the Atlantic Billfish Fishery Management Plan are implemented by regulations at 50 CFR part 635. The Atlantic pelagic longline (PLL) fishery for these HMS is also subject to the requirements of the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA).
        Background
        NMFS announced the availability of a Final Supplementary Environmental Impact Statement (FSEIS) concerning the reduction of sea turtle bycatch and bycatch mortality in the Atlantic PLL fishery on June 25, 2004 (69 FR 35599), and subsequently published a final rule on July 6, 2004 (69 FR 40734)to implement management measures to reduce bycatch and bycatch mortality of Atlantic sea turtles in the Atlantic PLL fishery. That rulemaking was based on the results of the 3-year Northeast Distant (NED) Closed Area research experiment involving interactions of PLL fishing gear and Atlantic sea turtles, other available studies and information on circle hook and bait treatments, and public comments.
        A 2004 BiOp issued for the Atlantic PLL fishery found that the measures that subsequently were included in the final rule were not likely to jeopardize the continued existence of loggerhead, green, hawksbill, Kemp's ridley, or olive ridley sea turtles, but were likely to jeopardize the continued existence of leatherback sea turtles. The 2004 BiOp also identified a Reasonable and Prudent Alternative necessary to avoid jeopardy, and contained an Incidental Take Statement (ITS) for the PLL that specifies the maximum authorized number of interactions with sea turtles. Among other actions, the 2004 BiOp specifies that NMFS review quarterly and annually sea turtle take estimates, and, should these estimates indicate that the PLL fishery is not likely to stay within the authorized 3-year take levels specified in the 2004 BiOp, NMFS shall take corrective action to avoid long-term elevations in sea turtle interactions and ensure that the ITS is not exceeded. Additionally, NMFS must monitor sea turtle post-hooking mitigation and release, and take corrective action to reduce mortalities if fleet-wide gear removal rates are not sufficient to meet mortality performance targets contained in the 2004 BiOp. In this notice, NMFS announces its intent to undertake additional rulemaking and non-regulatory actions, as necessary, to implement requirements of the 2004 BiOP to ensure that the mortality targets and ITS are not met nor exceeded.
        The PLL fishery is currently operating under the ITS level specified in the 2004 BiOp; thus, no corrective actions are needed at this time. However, the 2004 BiOp advises consideration of a framework mechanism to facilitate more timely implementation of corrective actions and to provide greater certainty on potential management responses. Thus, in this ANPR, NMFS is exploring a potential mechanism and/or individual corrective actions that might be necessary if any exceedance occurs.
        Potential Management Measures
        If sea turtle interactions and/or mortality exceed anticipated levels, the 2004 BiOp specifies that corrective measures should be taken. As described below, such actions could include time/area closures, additional gear modifications or gear restrictions, improvements in gear removal tool design, training program adjustments, or any other action that is deemed appropriate. The goal of any of these management measures would be to ensure that total sea turtle takes do not exceed long-term average take rates over 3-year periods. These measures may be considered individually or as an overarching framework that would give NMFS the ability to adjust the management measures, as appropriate, in order to reduce sea turtle bycatch and bycatch mortality, per the 2004 BiOp.
        If the ITS is expected to be exceeded, potential time/area closures could include modifications to existing closures or the addition of partial, rolling or permanent closures. NMFS may also consider establishing Dynamic Area Management protocols similar to those established under the Atlantic Large Whale Take Reduction Plan. Any of these types of closures could act to remove effort from areas where and when a large number of sea turtle interactions are likely to occur in order to reduce the number of sea turtle interactions.
        Additional potential management measures to prevent exceeding the mortality targets or ITS could include limits on fishing effort including limiting the number of sets fishery-wide, the number of sets per trip, the number of hooks per set, or the number of trips per year or quarter. In addition, NMFS may consider options to close the fishery for the month, quarter, fishing season, or year if a certain number of sea turtles are taken per set, trip, or quarter based on observed, estimated, or reported takes. NMFS may also consider additional modifications to existing hook and bait configurations or the turtle release gear, as more information is collected and analyzed. These types of management measures could reduce fishing effort and/or improve post-release survival in order to ensure that the ITS specified in the 2004 BiOp is not exceeded.
        Request for Comments
        NMFS requests comments on possible changes to the current regulations regarding fishing for Atlantic HMS with pelagic longline gear. Specifically, NMFS requests comments on individual or framework actions, including those described above, to ensure that mortality targets and the ITS specified in the BiOp are not met nor exceeded. In addition, NMFS also requests comments on any other possible regulatory changes that might further minimize sea turtle bycatch or bycatch mortality.
        Written comments received by the due date will be considered in drafting any proposed changes to the Atlantic HMS regulations. In developing any proposed regulations, NMFS will need to consider and analyze the ecological impacts of any actions under consideration with regards to target species and protected species, such as sea turtles, and other possible environmental effects. NMFS will also need to analyze the social and economic impacts of any changes to the fishery and related industries. To that end, NMFS would appreciate any comments that include information that would aid in those analyses. For example, comments could address how different types of regulatory measures may affect sea turtles or the PLL fishery. From the resource perspective, comments could address regulatory measures that would further protect sea turtles. Comments could also address how the PLL fishery may be impacted, both strategically and economically, by any changes that would further protect sea turtles, and suggest measures that would protect sea turtles but yet be compatible with the PLL fishery, or suggest measures that would minimize any unavoidable negative impacts on the fishery. Relevant data or other information could be included in support of these comments.
        Classification
        This action is significant pursuant to Executive Order 12866.

          Authority:
          16 U.S.C. 971 et seq. and 1801 et seq.

          Dated: August 9, 2004.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 04-18474 Filed 8-11-04; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF HOMELAND SECURITY
        Federal Emergency Management Agency
        44 CFR Part 67
        [Docket ID FEMA-2008-0020; Internal Agency Docket No. FEMA-B-1083]
        Proposed Flood Elevation Determinations for Humboldt County, California and Incorporated Areas

          AGENCY:
          Federal Emergency Management Agency, DHS.

          ACTION:
          Proposed rule; withdrawal.

          SUMMARY:
          The Federal Emergency Management Agency (FEMA) is withdrawing its proposed rule concerning proposed flood elevation determinations for Humboldt County, California and Incorporated Areas.

          DATES:
          As of March 5, 2015, the proposed rule published December 16, 2009, at 74 FR 66605, is withdrawn.

          ADDRESSES:

          You may submit comments, identified by Docket No. FEMA-B-1083, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email) Luis.Rodriguez3@fema.dhs.gov.

          FOR FURTHER INFORMATION CONTACT:

          Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email) Luis.Rodriguez3@fema.dhs.gov.

        SUPPLEMENTARY INFORMATION:

        On December 16, 2009, FEMA published a proposed rulemaking at 74 FR 66605, proposing flood elevation determinations along one or more flooding sources in Humboldt County, California. FEMA is withdrawing the proposed rulemaking and intends to publish a Notice of Proposed Flood Hazard Determinations in the Federal Register and a notice in the affected community's local newspaper following issuance of a revised preliminary Flood Insurance Rate Map and Flood Insurance Study report.

          Authority:
           42 U.S.C. 4104; 44 CFR 67.4.

          Dated: February 11, 2015.
          Roy E. Wright,
          Deputy Associate Administrator for Mitigation, Department of Homeland Security, Federal Emergency Management Agency.

      [FR Doc. 2015-05096 Filed 3-4-15; 8:45 am]
       BILLING CODE 9110-12-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 697
        [I.D. 063003A]
        RIN 0648-AR33
        Atlantic Striped Bass Conservation Act; Atlantic Striped Bass Fishery

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

          ACTION:
          Withdrawal of a notice of intent to prepare an Environmental Impact Statement (EIS).

          SUMMARY:
          On October 20, 2003, NMFS announced its intent to prepare an Environmental Impact Statement (EIS) and hold scoping meetings in accordance with the National Environmental Policy Act (NEPA). On September 7, 2006, the Assistant Administrator for Fisheries decided to withdraw NMFS' intent to prepare an EIS due the increase in the fishing mortality rate since the time of the original notice. The overwhelming public response to the rulemaking - the great majority of whom were in support of maintaining the closure - together with the clear public perception that large trophy sized fish congregate in the Exclusive Economic Zone (EEZ), suggests that fishing effort in an opened EEZ might markedly increase striped bass mortality above the already elevated current rates. Therefore, further processing of an EIS is no longer warranted. The notice of intent to prepare an EIS is withdrawn and the NEPA process is hereby terminated.

          DATES:
          Effective September 14, 2006.

          FOR FURTHER INFORMATION CONTACT:
          For any further information, contact Chris Moore, Chief, Partnerships and Communications Division, Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Room 13317, Silver Spring, MD 20910.

        SUPPLEMENTARY INFORMATION:
        Background
        On April 24, 2003, the Atlantic States Marine Fisheries Commission (Commission) recommended that the Secretary of Commerce (Secretary) remove the moratorium on the harvest of striped bass in the EEZ and implement Federal regulations to compliment Commission measures in Amendment 6 to the Interstate Fishery Management Plan for Striped Bass (Amendment 6). In addition, the letter included rationale for the action and requested that the Secretary implement a 28-inch minimum size limit for the recreational and commercial striped bass fisheries in the EEZ and allow states the ability to adopt more restrictive rules for fishermen and vessels licensed in their jurisdiction.
        In February 2003, the 2002 fishing mortality rate of F=0.28 was below the target level (F=0.30), whereas the female spawning stock biomass of 60.6 million pounds was 1.6 times the target level an all-time high. Under these ideal conditions, the Commission recommended to the Secretary to open the EEZ to striped bass fishing.

        In response to the Commission recommendation, an advance notice of proposed rulemaking (ANPR) was published in the Federal Register on July 21, 2003 (68 FR 43074). The comment period closed on August 20, 2003. The comment period was subsequently reopened on August 26, 2003 (68 FR 51232), for an additional 30-days. NMFS announced that it was considering proposed rulemaking to revise Federal Atlantic striped bass regulations to be compatible with the Commission's Amendment 6, and was seeking comments on the implementation of the Commission's recommendations to the Secretary to open the EEZ to the harvest of Atlantic striped bass. NMFS also solicited comments on possible alternative management measures and issues relative to these recommendations.

        After review of comments received from the public during the ANPR comment period, NMFS determined there were sufficient issues raised, both in support of, and in opposition to, the Commission's recommendation, to warrant further evaluation of the potential impacts of opening the EEZ to striped bass fishing. That determination resulted in the initiation of a decision-making process required under the NEPA. A Notice of intent to prepare an Environmental Impact Statement (EIS) and notice of scoping process was published in the Federal Register on October 20, 2003 (68 FR 59906). The notice presented a summary of the ANPR comments, and requested further public input on a list of potential alternatives and other management measures. Public meetings were held in nine Atlantic coast states between November 5 and December 10, 2003, and public comment period closed on December 22, 2003.
        Delay in the Development of an EIS
        In September 2004, the Commission's Striped Bass Technical Committee (Technical Committee) prepared its 2004 Stock Assessment Report for use by the Striped Bass Management Board (Board), which included data through 2003. That assessment contradicted previous assessments which had indicated that the striped bass population was not overfished and continued to grow in abundance. Instead, the results indicated that the stock was overfished and that spawning stock biomass had been reduced to below target levels. However, given that results of tagging study analyses did not show a similar increase in fishing mortality, the members of the Technical Committee did not feel the assessment provided an accurate representation of stock status. As such, the Technical Committee recommended the 2004 assessment results not be used for management decisions until both the modeling software and the input data sets were reevaluated during the 2005 assessment process. As a result, the 2004 stock assessment has not been used by the Commission for management decisions. In addition, NMFS decided to delay the completion of the EIS to be able to incorporate the 2005 stock assessment in the EIS.
        During 2005, the Technical Committee and Stock Assessment Subcommittee reviewed model inputs and the model itself to determine if the results from the 2004 assessment truly reflected status of the population or were an artifact of data or model errors. They concluded that a number of the indices used in the 2004 effort were not consistent with what was observed in the population as a whole, or were contradictory to the majority of other reliable time series. Those indices were removed from subsequent model runs. The Technical Committee believes the current assessment reflects the true status of the population, i.e., the stock is not overfished and overfishing is not occurring.
        Further Public Participation

        As a result of the new assessment results, NMFS decided to consider options for opening the EEZ again in 2006. Because significant time had passed since the nine initial scoping hearings were held in November-December 2003, and given that further stock assessments were now available, NMFS needed additional scoping before finalizing the alternatives to be analyzed in a draft EIS. NMFS developed a preliminary draft analyses of Federal management options to open the EEZ to the harvest of Atlantic Striped Bass (Options Paper), which included the 2005 stock assessment. This document was published in the Federal Register on April 24, 2006 (71 FR 20984) with a 30-day comment period. The comment period was extended an additional 30 days and ended June 26, 2006. Options considered in the document were: (1) Open the entire EEZ, implement a 28-inch (71.1-cm) minimum size limit, and allow states to adopt more restrictive regulations for fishermen and vessels licensed in their state (Commission recommendation); (2) open the entire EEZ, implement a 28-inch (71.1-cm) minimum size limit, allow states to adopt more restrictive regulations for fishermen and vessels licensed in their state, implement a recreational bag limit of 2 fish per day, require circle hooks for all commercial and recreational hook and line fishing using bait, and commercial trip limits (option a) bycatch trip limit options (option b); (3) open the entire EEZ, implement a 28-inch (71.1-cm) minimum size limit, allow states to adopt more restrictive regulations for fishermen and vessels licensed in their state, allow hook and line gear only, implement a recreational bag limit of 2 fish per day, require circle hooks for all commercial and recreational hook and line fishing using bait, and implement a commercial trip limit of 30 fish per trip or day whichever is greater; and (4) status quo. No preferred option was identified.
        Most public comments were based on review of the Options Paper, which analyzed impacts under each of the four options. The Option Paper stated that options 1-3 could result in an increased fishing pressure in the EEZ (i.e., increased mortality), however, any increase in EEZ effort will likely be minimal and offset by an equally small decrease in nearshore effort.
        The vast majority (97 percent) of the 8,000-plus comments were for option 4 status quo. Public comments overwhelmingly indicated that the public disagreed with the Option Paper's conclusion that there would be no increase mortality if the EEZ were opened. The public believes that if the EEZ were opened that mortality would increase substantially. In addition, the public believes that “It has been determined that the majority of striped bass in the EEZ are larger fish, which also tend to be females,” although, there is no scientific study to substantiate this. Regardless, there exists a strong perception by the public that larger fish are offshore and that perception alone might cause an increase in fishing pressure in the EEZ and, as a result, an overall increase in mortality on the stock.
        Discussion
        The striped bass stock has shown significant changes since 2003 when the Commission recommended that the Secretary open the EEZ to striped bass fishing in Amendment 6. Although approved in February 2003, Amendment 6 was based largely on data from the 2001 Stock Assessment. Notably, at the time of adoption, the best available science suggested the mortality rate to be stable and below the threshold, and that spawning stock abundance was increasing. Amendment 6 incorporated new management standards to ensure stock conservation including targets and thresholds for both mortality and spawning stock biomass, and five triggers that would allow the Commission to respond quickly to increased mortality. One of the triggers is “If the Management Board determines that the fishing mortality threshold is exceeded in any year, the Board must adjust the striped bass management program to reduce the fishing mortality rate to a level that is at or below the target within one year.”
        The best available science suggests that the stock's status and fishing mortality rate have changed significantly since the time the Commission approved Amendment 6 in February 2003. Not only has the overall trend shifted towards increased mortality, but the specific fishing mortality rate itself has increased from F=0.28 (below the target of 0.30) to F=0.40 a rate that exceeds the target and is almost equal to the overfishing threshold of 0.41. This shift represents a mortality increase of 43% since 2002. In fact, fishing mortality estimates for older striped bass (age 9 F=0.50) and (age 10 F=0.44) both exceed the threshold level. Further, the trend toward increasing female spawning stock biomass (SSB) has reversed itself with the overall biomass decreasing from 60.6 million pounds (according to the science available in February 2003), to 55.0 million pounds in November 2005. The SSB remains well above the target of 38.6 million pounds and threshold of 30.9 million pounds, but has shown a downward trend of 9 percent since 2002.
        The analysis in the Options Paper stated that any increase in EEZ effort (increase mortality) under options 1-3 would likely be minimal. But, with the fishing mortality rate at F=0.40, NMFS cannot be certain, especially after taking into account the overwhelming public perception that large trophy sized fish congregate in the EEZ, that opening the EEZ would not increase effort and lead to an increase in mortality that would exceed the threshold. Since the current mortality rate is just below the threshold, any increase will require the Commission to reduce fishing effort on striped bass. Both the Commission's and NMFS' ability to immediately respond to an overfishing and/or overfished situation is a potential issue, particularly given the timeframe within which Amendment 6 was created, and given the lag time in which a given year's data is available to management.
        Therefore, NMFS has concluded that it would be imprudent to open the EEZ at this time and has chosen to not proceed with further processing of an EIS under the NEPA process.

          Authority:
          16 U.S.C. 1851 note.

          Dated: September 8, 2006.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E6-15262 Filed 9-13-06; 8:45 am]
      BILLING CODE 3510-22-S