[Federal Register: November 23, 2004 (Volume 69, Number 225)]
[Rules and Regulations]
[Page 68095-68103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no04-16]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 040106005-4316-02; I.D. 121603C]
RIN 0648 AP73
Fisheries of the Exclusive Economic Zone Off Alaska; Full
Retention of Demersal Shelf Rockfish in the Southeast Outside District
of the Gulf of Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule that requires the operator of a
federally permitted catcher vessel using hook-and-line or jig gear in
the Southeast Outside District (SEO) of the Gulf of Alaska (GOA) to
retain and land all demersal shelf rockfish (DSR) caught while fishing
for groundfish or for Pacific halibut under the Individual Fishing
Quota (IFQ) program. This action is necessary to improve estimates of
fishing mortality of DSR. This final rule is intended to further the
goals and objectives of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) and the Fishery Management Plan
for Groundfish of the Gulf of Alaska (FMP).
DATES: Effective December 23, 2004.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and the
Final Regulatory Flexibility Analysis (FRFA) prepared for this action
may be obtained from the Sustainable Fisheries Division, Alaska Region,
NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall, by
calling the Alaska Region, NMFS, at 907-586-7228, or from the Alaska
Region, NMFS website at http://www.fakr.noaa.gov.
Send comments on collection-of-information requirements to NMFS,
Alaska Region, and to the Office of Information and Regulatory Affairs,
Office of Management and Budget (OMB), Washington D.C. 20503 (Attn:
NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Tom Pearson, 907-481-1780 or
tom.pearson@noaa.gov.
SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive
economic zone (EEZ) of the GOA are managed under the FMP. The FMP was
prepared by the North Pacific Fishery Management Council (Council)
under the authority of the 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.
Background
One of the species groups managed under the FMP is DSR, an
assemblage of seven rockfish species: Canary rockfish (Sebastes
pinniger), China rockfish (S. nebulosus), copper rockfish (S.
caurinus), quillback rockfish (S. maliger), rosethorn rockfish (S.
helvomaculatus), tiger rockfish (S. nigrocinctus), and yelloweye
rockfish (S. ruberrimus).
The State of Alaska (State) manages all fisheries occurring within
State waters, i.e., within three nautical miles of Alaska's coastline.
The FMP defers to the State some management responsibility for the DSR
fishery in the SEO, subject to Council and Federal oversight. The State
management regime must be consistent with the goals of the FMP.
Commercial harvests of DSR are managed within the total allowable catch
(TAC) specified annually by NMFS in consultation with the Council. NMFS
published the DSR TAC for 2004 in the Federal Register on February 27,
2004 (69 FR 9261).
Existing State regulations for DSR establish fishing seasons (5 AAC
28.111(a)) and gear restrictions (5 AAC 28.130), set harvest guidelines
for directed DSR fishing based on the TAC (5 AAC 28.160), and limit the
amount of DSR that can be retained as bait (5 AAC 28.190). Also, the
State has a full retention requirement for DSR caught in State waters
(5 AAC 28.171). The Council and NMFS establish the annual TAC for DSR
(see 50 CFR 679.20), regulate the catch of prohibited species in the
DSR directed fishery (see 50 CFR 679.21), set recordkeeping and
reporting requirements (see 50 CFR 679.5), and impose a maximum
retention requirement for DSR caught incidentally in Federal fisheries
(see 50 CFR 679.20(d)-(e); Table 10 to part 679).
Need for Action
The existing management background and explanation of the need for
this action were described in the preamble to the proposed rule
published in the Federal Register on January 21, 2004 (69 FR 2875). The
Council and NMFS have designed this action to achieve the following
four objectives:
1. Improve data collection on the incidental catch of DSR in the
halibut and groundfish hook-and-line fisheries
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in the SEO to more accurately estimate DSR fishing mortality, improve
DSR stock assessments, and evaluate whether current maximum retainable
amounts (MRAs) are the appropriate levels for DSR in the SEO;
2. Minimize waste to the extent practicable;
3. Avoid increasing incentives either to target DSR or to discard
DSR that is caught in excess of the amount that can legally be sold for
profit; and
4. Maintain a consistent approach within State and Federal
regulations that govern the retention and disposition of DSR.
The preamble to the proposed rule (January 21, 2004, 69 FR 2875)
contains additional explanation as to how this action will achieve
these objectives.
Elements of this Rule
This rule has two main provisions that are added as paragraph (j)
to Sec. 679.20. The first provision addresses retention and landing
requirements. The operator of a federally-permitted catcher vessel
using hook-and-line or jig gear is required to retain and land all DSR
that is caught while fishing for groundfish or IFQ halibut in the SEO.
Landed fish must be reported under Federal and State regulations.
The second provision addresses disposal of retained amounts of DSR.
Under this rule, a fisherman is limited to selling an amount of
retained DSR that is no more than 10 percent of the aggregate round
weight equivalent of IFQ halibut and groundfish, other than IFQ
sablefish, that he or she retained onboard the vessel. For IFQ
sablefish, a fisherman is limited to selling an amount of retained DSR
that is no more than 1 percent of the aggregate round weight equivalent
of IFQ sablefish he or she retained onboard the vessel. Fishermen could
use amounts of retained DSR in excess of these sale limits for other
purposes, including personal consumption or donation, but amounts of
DSR in excess of the sale limits are prohibited from entering commerce
through sale, barter, or trade.
Additionally, the MRA table for the GOA groundfish fisheries (Table
10 to 50 CFR part 679) is amended to remove the DSR MRA for catcher
vessels in the SEO. A footnote is added to the DSR entry cross
referencing the requirements specified in Sec. 679.20(j).
Response to Comments
NMFS solicited public comments on the proposed rule (January 21,
2004, 69 FR 2875) through February 20, 2004. One letter containing six
separate comments was received during this comment period. The comments
are summarized and responded to below.
Comment 1: NMFS is overemphasizing the collection of fisheries
information and neglecting the value of marine sanctuaries to re-
establish fish populations. No marine sanctuaries have been created
which should be an immediate first priority.
Response: The primary purpose of this regulatory amendment is not
to re-establish DSR populations, but to improve information on the
incidental catch of these rockfish species while not increasing
incentives to either target or discard them. NMFS has no data that
indicate DSR is overfished or that overfishing is occurring, hence, no
need is apparent to re-establish DSR populations. In addition, areas of
the GOA have been closed to fishing for conservation purposes, such as
the Sitka Pinnacles Marine Reserve. This and other closed areas are
specified in the groundfish regulations at Sec. 679.22(b). The January
2004 draft environmental impact statement (EIS) for essential fish
habitat discusses the effects of fishing on sensitive habitat features
and evaluates a range of options for minimizing adverse effects, such
as closing areas of rockfish habitat to bottom trawling. Further
information on the draft EIS may be found at the NMFS Alaska Region
website at http://www.fakr.noaa.gov.
Comment 2: Days at sea should be cut by 50 percent this year, and
cut by 10 percent each year thereafter. It is time to prevent
overfishing that is obviously going on.
Response: NMFS has identified no overfished stocks in the SEO
District, or in the GOA as a whole, and has seen no evidence of
overfishing of groundfish in this area. A reduction in days at sea is a
management tool that has been used in other areas of the United States.
In Alaska, however, NMFS has found that strict adherence to managing
harvests at or below TAC levels makes the use of such a management tool
unnecessary.
Comment 3: The use of hook-and-line gear to target Pacific halibut
should be prohibited. Enforcement is practically non-existent. When
fishermen are found in violation of the halibut fishery regulations,
their fishing privileges should be permanently revoked.
Response: As part of an international agreement between the U.S.
and Canada, hook-and-line gear is the only gear type authorized for use
in the commercial harvest of halibut. Prohibiting its use would, in
effect, close the commercial fishery for halibut. Enforcement of the
halibut fishing regulations is conducted by NMFS Office of Enforcement
and the U.S. Coast Guard, and compliance with these regulations is
considered acceptable. The Office of Enforcement examines each
violation of the fisheries regulations on a case by case basis.
Penalties for violations can range from a written warning to the
revocation of fishing privileges, forfeiture of fishing vessels, fines,
and imprisonment.
Comment 4: NMFS, to the detriment of the American public, is too
slow to react to problems. NMFS has taken no action to address issues
raised since 1996 and nothing has been done about overfishing issues
and anti-environmental actions.
Response: The groundfish fisheries in the GOA and off Alaska
generally are among the best managed and most sustainable fisheries in
the world. None of the groundfish stocks off Alaska are overfished or
experiencing rates of harvest that are causing overfishing. Working
closely with the Council since 1996, NMFS has implemented more than 25
amendments to the FMP which have led to improvements in the
conservation and management of the GOA groundfish fisheries. In
considering any FMP or regulatory change, the Council and NMFS
carefully consider a broad range of alternatives to address biological,
environmental, and economic concerns. Preparation of these analyses and
receiving public comment on them may take a period of months or years,
but this is done to assure that fishery management programs are well
justified and in compliance with all applicable law.
Comment 5: Fishery quotas should be cut by 50 percent this year and
by 10 percent each year thereafter. Too many vessels are allowed to
fish; government agencies act as if fisheries resources are infinite,
when they are not.
Response: Fishery quotas or TACs are based upon the best scientific
information available which is reviewed annually by the Council, its
committees and NMFS. The Council often sets TACs at levels below the
Acceptable Biological Catch (ABC) levels in response to social,
economic, and environmental concerns. The establishment of TACs on an
annual basis is implicit recognition that fisheries resources are not
infinite. Additionally, the Council has recommended and NMFS has
implemented several programs to reduce the number of vessels
participating in the groundfish fisheries of Alaska, including the
groundfish and crab License Limitation Program, the pollock fishing co-
operatives under the American Fisheries Act, and the IFQ program for
the halibut and sablefish fisheries. Development of management
[[Page 68097]]
programs to rationalize fisheries or provide market-based incentives to
reduce excessive fishing capital currently is underway in the Bering
Sea crab fisheries and the GOA groundfish fisheries.
Comment 6: Once DSR are caught, they should be consumed. Markets
could be found. The best ways to save fish stocks are to reduce quotas
and to reduce fishing vessel days at sea. Fishermen found in violation
of fishery regulations should have their vessels confiscated and
fishing privileges permanently revoked.
Response: This final rule will require an operator of a federally
permitted catcher vessel using hook-and-line or jig gear in the SEO to
retain and land all DSR caught while fishing for groundfish or for
Pacific halibut under the IFQ program in the SEO. Amounts of DSR
species landed that are in excess of the maximum amount that may be
sold may not enter commerce, but may be retained for personal
consumption or donation to charity. Responses to concerns about
conservation of fish stocks are given in the responses to comments 2
and 5. See the response to comment 3 regarding fisheries enforcement.
Changes from the Proposed Rule
No substantive changes are made in this final rule from the
proposed rule. The headings of paragraphs at Sec. 679.20(j)(2)(i),
(j)(2)(ii), and (j)(2)(iii) are removed, however, to simplify the
regulatory text.
To reflect the changes made by Amendment 63 to the FMP, Table 10 in
the final rule is changed from Table 10 in the proposed rule. Amendment
63 separated skates from the ``other species'' category to the target
species category to allow for management of skates as a separate target
species. The final rule for Amendment 63 was published May 12, 2004 (69
FR 26313). Because the proposed rule for DSR retention (January 21,
2004, 69 FR 2875) was published before the final rule for Amendment 63,
the proposed rule for DSR did not include the changes to Table 10 that
became effective with the final rule for Amendment 63. To ensure this
final rule for DSR reflects changes made to Table 10 by the final rule
for Amendment 63, Table 10 in the DSR final rule is changed from the
DSR proposed rule to include the separation of skates from the ``other
species'' category.
A typographical error in Table 10 is also corrected by this final
rule. A ``na9'' is added to the cell at the intersection of the
sablefish column and row. This addition shows that the incidental catch
of sablefish in the sablefish directed fishery is not applicable.
Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA which incorporates the IRFA and a summary of
the analyses completed to support the action. Copies of these analyses
are available from NMFS (see ADDRESSES). The FRFA did not reveal any
Federal rules that duplicate, overlap, or conflict with the action. The
following summarizes the FRFA.
Need for and Objectives of the Rule
A description of the need for and objectives of this action is
contained in the preamble to the proposed rule published in the Federal
Register on January 21, 2004 (69 FR 2875), and in the preamble of this
final rule.
Summary of Significant Issues Raised in Public Comment
No comments were received specifically on the IRFA. Several
comments were received on the proposed rule that were largely
irrelevant to the action, and none focused on the potential economic
impacts of the action.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
The directly regulated entities are those vessels taking DSR as
incidental catch in halibut and groundfish fisheries in Federal waters
of the SEO district and the processors buying the DSR from them. NMFS
estimates that 423 vessels participated in these fisheries in 2000.
Most of these vessels were less than 60 feet (18.3 m) in length,
fishing with hook-and-line gear and jig gear. Average gross revenues
for these vessels from the Alaskan halibut and groundfish fisheries
were about $262,000. Average gross revenues from all fisheries for
these entities are undoubtedly higher, because these vessels
participate in other fisheries in Alaska. In the years from 1996 to
2001, between 17 and 26 plants bought groundfish in Southeast Alaska.
In 2000, the average gross revenues for these plants were about $12
million. NMFS estimates that these fishing and processing operations
were all ``small entities'' within the meaning of the Regulatory
Flexibility Act.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This rule will impose no new recordkeeping requirements on
regulated entities. NMFS has not been able to identify any relevant
Federal rules that may duplicate, overlap, or conflict with the
preferred alternative.
Steps Taken to Minimize Economic Impacts on Small Entities
The FRFA evaluated four alternatives: (1) the status quo, (2) full
retention allowing all retained DSR to enter the stream of commerce,
(3) full retention prohibiting certain amounts of DSR from entering the
stream of commerce, and (4) use of an observer program. Alternative 3
is the preferred alternative. Alternative 1 imposes no adverse impacts
on small entities, but fails to advance the action objectives of
providing new information on DSR, reducing DSR wastage, and maintaining
consistency between State and Federal regulations. Alternative 2 may be
less costly than Alternative 3 in that fishermen could allow processors
to sell the excess DSR and relinquish the proceeds to the State.
However, regulation of the disposition of the proceeds from the sale of
DSR under Alternative 2 appears to exceed the authority granted to NMFS
under the Magnuson-Stevens Act. Alternative 3, the preferred
alternative, is discussed in detail in the preamble to the proposed
rule and summarized in this final rule. Under Alternative 4, fishermen
face additional costs for observer coverage, including travel and
logistical expenses for observers, and an additional cost of about
$330/day for 30 percent of days at sea. This alternative would provide
new information on the status of DSR stocks, but would not reduce DSR
waste or reduce the inconsistency between State and Federal
regulations. Using observers for the DSR incidental catch fishery might
become more feasible in the future in the context of a comprehensive
restructuring of the observer program that would include funding for
the observers so that the entire cost did not fall on fishermen.
The Council considered but rejected several other alternatives
because they did not appear to be effective solutions to the stated
goals. Those mentioned in the EA include: (1) open the directed DSR
fishery during halibut IFQ seasons and require full retention, (2)
defer all management of DSR to the State, and (3) implement an IFQ
fishery for DSR. The EA also discussed the option of an exempted
fishing permit (EFP) conducted in order to obtain bycatch data.
However, although such a program might allow more flexibility in
design, it would depend on voluntary participation, and would therefore
not enable the State to obtain a full census.
[[Page 68098]]
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) that have been approved by the
Office of Management and Budget (OMB). These collections are provided
below by OMB control number:
OMB No. 0648-0206 Public reporting burden is estimated to average
21 minutes for a Federal Fisheries Permit application and 20 minutes
for a Federal Processor Permit application.
OMB No. 0648-0213 This collection contains the recordkeeping and
reporting forms and logbooks in which species, including DSR, are
recorded and reported. Total public reporting burden for this family of
forms is estimated at 32,329 hours. This estimate covers all forms of
logbooks, and is not necessarily indicative of the burden associated
with those to whom this rule applies. No measurable increase in burden
is associated with this final rule because activity under this final
rule is included in the existing collection.
The estimated response times shown include the time to review
instructions, search existing data sources, gather and maintain the
data needed, and complete and review the collection of information.
Send comments regarding this burden estimate, or any other aspect of
this data collection, including suggestions for reducing the burden, to
NMFS (see ADDRESSES) and by e-mail to DRostker@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.
Small Entity Compliance Guide
Affected commercial fishermen will be in compliance with this rule
if they retain all DSR they catch incidental to fishing for other
groundfish and Pacific halibut. Further, these fishermen may not sell
their incidental harvest of DSR if it is in excess of 10 percent of the
aggregate round weight equivalent of IFQ halibut and groundfish
species, other than sablefish, that are landed during the same fishing
trip, or if it is in excess of 1 percent of the aggregate round weight
equivalent of IFQ sablefish that are landed during the same fishing
trip. Copies of the final rule are available from NMFS (see ADDRESSES)
and at the following website: http:/www.fakr.noaa.gov.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: November 18, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For reasons set out in the preamble, 50 CFR part 679 is amended as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et
seq.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C;
Pub L. 106-31, Sec. 3027; and Pub L. 106-554, Sec. 209.
0
2. In Sec. 679.20, paragraph (j) is added to read as follows:
Sec. 679.20 General limitations.
* * * * *
(j) Full retention of Demersal Shelf Rockfish (DSR) in the
Southeast Outside District of the GOA (SEO)--(1) Retention and landing
requirements. The operator of a catcher vessel that is required to have
a Federal fisheries permit, or that harvests IFQ halibut with hook and
line or jig gear, must retain and land all DSR that is caught while
fishing for groundfish or IFQ halibut in the SEO.
(2) Disposal of DSR when closed to directed fishing. When DSR is
closed to directed fishing in the SEO, the operator of a catcher vessel
that is required to have a Federal fisheries permit under Sec. 679.4
(b), or the manager of a shoreside processor that is required to have a
Federal processor permit under Sec. 679.4(f), must dispose of DSR
retained and landed in accordance with paragraph (j)(1) of this section
as follows:
(i) A person may sell, barter, or trade a round weight equivalent
amount of DSR that is less than or equal to 10 percent of the aggregate
round weight equivalent of IFQ halibut and groundfish species, other
than sablefish, that are landed during the same fishing trip.
(ii) A person may sell, barter, or trade a round weight equivalent
amount of DSR that is less than or equal to 1 percent of the aggregate
round weight equivalent of IFQ sablefish that are landed during the
same fishing trip.
(iii) Amounts of DSR retained by catcher vessels under paragraph
(j)(1) of this section that are in excess of the limits specified in
paragraphs (j)(2)(i) and (ii) may be put to any use, including but not
limited to personal consumption or donation, but must not enter
commerce through sale, barter, or trade.
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3. In 50 CFR part 679, Table 10 is revised as follows:
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