Fisheries of the Exclusive Economic Zone Off Alaska; Revised Management Authority for Dark Rockfish in the Bering Sea and Aleutian Islands Management Area and the Gulf of Alaska

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule that implements Amendment 73 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 77 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (collectively, Amendments 73/77). Amendments 73/77 remove dark rockfish (Sebastes ciliatus) from both fishery management plans (FMPs). The State of Alaska (State) will assume management of dark rockfish catch by State-permitted vessels in the Bering Sea and Aleutian Islands Management Area and the Gulf of Alaska, in addition to its existing authority in State waters. This action is necessary to allow the State to implement more responsive, regionally based management of dark rockfish than is currently possible under the FMPs. This action will improve conservation and management of dark rockfish and promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMPs, and other applicable laws.

DATES:

Effective January 30, 2009.

ADDRESSES:

Copies of Amendments 73/77 and the Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action are available from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, or from the Alaska Region NMFS Web site at http://alaskafisheries.noaa.gov/regs/analyses/ .

FOR FURTHER INFORMATION CONTACT:

Thomas Pearson, 907-481-1780.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) and the Gulf of Alaska (GOA) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679.

Background

In April 2007, the Council recommended Amendment 73 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 77 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (Amendments 73/77). Amendments 73/77 would remove dark rockfish (Sebastes ciliatus) from the FMPs. Dark rockfish currently are managed as part of the “other rockfish” complex in the BSAI and as part of the pelagic shelf rockfish (PSR) complex in the GOA. The Council recommended removal of dark rockfish from the FMPs for the following reasons: (1) In 2004, dark rockfish was identified as a separate rockfish species, (2) data in the stock assessments for the PSR complex in the GOA and the “other rockfish” complex in the BSAI are predominantly from dusky rockfish, not dark rockfish, (3) dark rockfish are distributed in nearshore habitats that are not specifically assessed by the NMFS trawl surveys, (4) there is a possibility of overfishing dark rockfish in local areas given the relatively high total allowable catch (TAC) for the PSR and “other rockfish” complexes as a whole, and (5) the removal of dark rockfish from the FMPs will allow the State of Alaska (State) to assume management authority for dark rockfish catch by State-permitted vessels in Federal waters off Alaska, in addition to its existing authority in State waters and to implement more responsive, regionally based management of dark rockfish than is possible under the FMPs. The State of Alaska has expressed its intent to assume management of dark rockfish after NMFS provides them with the authority to do so.

Detailed information on the management background and need for action is in the preamble to the proposed rule (73 FR 55010, September 24, 2008). A Notice of Availability (NOA) of the FMP amendments was published in the Federal Register on September 17, 2008 (73 FR 53816). Comments on both the proposed rule and NOA were invited through November 17, 2008. One comment was received and is described and responded to below. Amendments 73/77 to the FMPs were approved by the Secretary of Commerce on December 15, 2008.

Comments and Responses

NMFS received one comment. The comment did not indicate whether it was in response to the notice of availability for Amendments 73/77 or the proposed rule.

Comment 1: The commenter opposed turning over management of dark rockfish to the State of Alaska because of his or her general concerns about the State's management of all natural resources under its authority. The commenter also expressed general opposition to NMFS's management of fishery resources off Alaska.

Response: NMFS disagrees with the commenter that management of dark rockfish should not be turned over to the State. In addition to the reasons described above that the Council recommended removal of dark rockfish from the FMPs, the State also has demonstrated its ability to manage rockfish species previously removed from the FMPs for similar reasons. Black rockfish was removed from the FMPs and management was turned over to the State in 1998. Some of the management measures that the State has implemented for black rockfish in the GOA include development of a fishery management plan specifically addressing black rockfish and management measures designed to prevent localized depletion of black rockfish. These management measures include smaller area guideline harvest levels, lower total guideline harvest levels compared to what the total allowable catch would have been under the Federal FMPs, and lower maximum retainable amounts than would have been in effect under Federal regulations. The State also has undertaken research to assess the status of black rockfish stocks in the GOA that the Federal government likely would not have been able to do if it had retained management of black rockfish. NMFS and the Council expect the State to manage dark rockfish in a similar manner once it has the authority to do so. Therefore, no change was made to the final rule as a result of this comment.

Regulatory Amendments

This final rule revises the definition of “rockfish” at § 679.2 to exclude dark rockfish in both the GOA and BSAI. The definition for “other rockfish” is amended to add a reference to Table 11 to part 679 because the quota category for “other rockfish” exists in both the BSAI and GOA and is referred to in the maximum retainable amounts tables for both areas (Tables 10 and 11). In addition, the definition of “other red rockfish” is removed from § 679.2 because this rockfish quota category no longer exists and the term is not used anywhere else in 50 CFR part 679.

The final rule also corrects the Latin name of dusky rockfish (Sebastes variabilis), species code 172, in Table 2a to part 679, and adds dark rockfish (Sebastes ciliatus), species code 173, to the non-FMP species listed in Table 2d to part 679.

In Table 10 to part 679 (Gulf of Alaska Retainable Percentages), footnote 5 is revised to correct the Latin name for dusky rockfish (Sebastes variabilis). Footnote 8 is revised to remove reference to Sebastes and Sebastolobus and to refer to the definition of “rockfish” at § 679.2.

This final rule also makes minor editorial revisions to Table 10 to part 679. In note 1, the species code for “shortraker/rougheye (171)” is removed because NMFS no longer has a species code associated with the combination of shortraker and rougheye rockfish Table 2a to part 679. Shortraker rockfish and rougheye rockfish have separate species codes. Note 10 lists the species included in the aggregated forage fish category. The word “families” in the parentheses following the term “Aggregated forage fish” is replaced with the word “taxa” because all species of the order Euphausiacea (krill) also are included in the list of aggregated forage fish. The word “taxa” refers to more general groupings of similar organisms and includes taxonomic families and orders.

In Table 11 to part 679 (BSAI Retainable Percentages), footnotes 3 and 6 are revised to remove references to Sebastes and Sebastolobus and to refer to the definition of “rockfish” at § 679.2. This revision excludes dark rockfish from these rockfish categories in the BSAI because dark rockfish are excluded from the definition of rockfish at § 679.2.

Changes From the Proposed Rule

In the proposed rule, NMFS mistakenly included revisions to the retainable percentages in Table 10 to part 679 for selected groundfish species using arrowtooth flounder as a basis species. The proposed rule did not specifically propose these revisions in the preamble. These revisions were recommended by the Council in a separate action and were published in a separate proposed rule on November 25, 2008 (73 FR 71592). Revisions related to the retainable percentages using arrowtooth flounder as a basis species should not have been included in the proposed rule for Amendments 73/77. Therefore, this final rule does not implement revisions to the retainable percentages in Table 10 for deep-water flatfish, rex sole, flathead sole, shallow-water flatfish, sablefish, aggregated rockfish, Atka mackerel, and skates using arrowtooth flounder as a basis species. The retainable percentages for these species using arrowtooth flounder as a basis species remain at 0 percent in this final rule, which reflects current regulations at 50 CFR part 679.

This final rule also incorporates revisions that were made to Tables 2a, 2d, 10, and 11 to part 679 in a separate final rule that implemented a variety of recordkeeping and reporting regulatory amendments (73 FR 76136; December 15, 2008). The revision to the hyphenation of the words “shallow-water” and “deep-water” in Table 10 to part 679 was included in the proposed rule for Amendments 73/77, but since this revision was made in the final rule described above that implemented recordkeeping and reporting revisions, changing the hyphenation of these terms no longer needs to be implemented through this final rule for Amendments 73/77.

Classification

The Administrator, Alaska Region, NMFS, determined that Amendments 73/77 are necessary for the conservation and management of the groundfish fisheries in the BSAI and GOA, and that these FMP amendments and the regulatory amendments to implement them are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), and provides a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES). No comments were received on the IRFA.

The numbers of small entities that may be directly regulated by this action have been estimated using information on gross revenues and American Fisheries Act affiliation in 2006, and information on participation in the GOA Rockfish Program and on corporate ownership of vessel fleets from 2007 and 2008.

In 2006, one year immediately preceding the Council action recommending the removal of dark rockfish from the FMPs, there were 81 small catcher vessels that made landings of pelagic shelf rockfish from the GOA, taken as either targeted or incidental catch fish. No small catcher-processors made such landings. The 81 small catcher vessels included 74 that used hook-and-line, pot, or jig gear, and seven that used pelagic or non-pelagic trawl gear. The 81 small catcher vessels averaged about $400,000 in gross ex-vessel revenues from all sources.

In 2006, one small catcher/processor and 36 small catcher vessels made incidental catch landings of pelagic shelf rockfish in the BSAI. All together, 35 vessels used hook-and-line, pot, or jig gear, and two used trawl gear. The 37 small vessels averaged about $1.4 million in gross revenues from all sources.

This regulation does not impose new recordkeeping and reporting requirements on the regulated small entities.

Two alternatives are analyzed in this document: Alternative 1—No Action, continue managing dark rockfish within the larger PSR complex in the GOA, and within the “other rockfish” complex in the BSAI; and Alternative 2—Preferred Alternative, remove dark rockfish from the GOA groundfish FMP and BSAI groundfish FMP, and defer management of this species, in both State and Federal waters, to the State of Alaska.

The preferred alternative may have adverse impacts on operations targeting pelagic shelf rockfish in the Central GOA and in the West Yakutat District. NMFS does not expect the action to have adverse impacts on operations targeting rockfish in the Southeast Outside and Western regions of the GOA, or in the BSAI (targeting does not appear to be significant in the Southeast Outside or BSAI). NMFS does not expect the action to have adverse impacts on operations taking dark rockfish as incidental catch. In the Central GOA, most of the adverse impact would fall on participants in the GOA Rockfish Program. Because of the affiliations these operations have through the quota management and allocation features of the Rockfish Program, NMFS does not believe these operations can be considered small entities for the purpose of the RFA. However, it is possible that they would experience some adverse impact as described in the Regulatory Impact Review. The primary alternative considered here, Alternative 1—No Action, would not have these adverse impacts, but would not remove dark rockfish from the FMPs and, thus, does not accomplish the stated objective for the action.

The Council also considered an additional alternative to the proposed action that was not carried forward for analysis. This alternative was to transfer management authority of dark rockfish to the State of Alaska while retaining the species under the Federal FMPs. Demersal shelf rockfish in Southeast Alaska is under a similarly delegated management program with the State of Alaska. A similar alternative was considered and rejected for black rockfish and blue rockfish under Amendment 46 to the GOA FMP. This alternative was not carried forward for dark rockfish because (1) State personnel would be required to comply with additional Federal management processes that may not be consistent with State procedures; (2) the State would need to meet both State and Federal requirements, which often prescribe different time-frames for management actions (e.g., notice, public meetings, and reports); and (3) the State did not believe it could meet the costly assessment requirements for managing a nearshore species, mandated under a Federal management plan.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions that a small entity is required to take to comply with a rule or group of rules. The preamble to the proposed rule and this final rule fully explain the regulatory amendments that will be implemented to remove dark rockfish from the FMPs. The proposed rule, final rule, and regulations governing the groundfish fisheries off Alaska are the best source of information about how to comply with Amendments 73/77 and, therefore, collectively they represent the small entity compliance guide for this final rule. These documents are available from NMFS (see ADDRESSES) and from the NMFS Alaska Region's Web site at http://alaskafisheries.noaa.gov. The State of Alaska will assume management of dark rockfish in the BSAI and GOA when this final rule becomes effective and all State-permitted vessels will be required to comply with State of Alaska laws and regulations governing the catch of dark rockfish.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for 50 CFR part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq.; Pub. L. 108-447.

2. In § 679.2, remove the definition for “Other red rockfish” and revise the definitions for “Other rockfish” and “Rockfish” to read as follows:

3. Table 2a to part 679 is revised to read as follows:

4. Table 2d to part 679 is revised to read as follows:

5. Tables 10 and 11 to part 679 are revised to read as follows:

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