[Federal Register Volume 64, Number 16 (Tuesday, January 26, 1999)]
[Rules and Regulations]
[Pages 3877-3882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1605]



[[Page 3877]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 980817221-9020-02; I.D. 072898A]
RIN 0648-AL22


Fisheries of the Exclusive Economic Zone Off Alaska; Western 
Alaska Community Development Quota Program

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

ACTION: Final rule; emergency interim rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 45 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP) and an emergency interim rule to 
implement requirements of the American Fisheries Act (AFA) related to 
the 1999 Western Alaska Community Development Quota (CDQ) Program. 
These actions permanently extend the allocation of pollock to the CDQ 
Program, remove squid from the CDQ Program, and revise pollock CDQ 
catch accounting regulations. This action is necessary to implement 
Amendment 45 and CDQ Program-related provisions of the AFA.

DATES: Effective January 21, 1999, except the definitions for 
``Directed fishing for pollock CDQ'' and ``Groundfish CDQ fishing 
(applicable through December 31, 1998)'', at Sec. 679.2 and the 
amendment to Secs. 679.20(b)(1)(iii)(A) and (b)(1)(iii)(D), 
679.32(a)(2) through (a)(4), and 679.32(g) of the emergency interim 
rule are effective January 21, 1999 through July 20, 1999. Comments on 
the emergency interim rule must be submitted by February 25, 1999.

ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to 
the Federal Building, 709 West 9th Street, Juneau, AK. 
Copies of the Environmental Assessment/Regulatory Impact Review/Final 
Regulatory Flexibility Analysis prepared for Amendment 45 and the 
Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for 
the emergency interim rule may be obtained from the same address.

FOR FURTHER INFORMATION CONTACT: Sally Bibb, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Management Background and Need for Action

    In Amendment 45, the North Pacific Fishery Management Council 
(Council) recommended permanent extension of the allocation of 7.5 
percent of the pollock total allowable catch (TAC) in the Bering Sea 
and Aleutian Islands management area (BSAI) to the Western Alaska CDQ 
Program. In addition, Amendment 45 removes the pollock CDQ Program from 
the inshore/offshore section of the FMP and reorganizes three separate 
CDQ-related sections of the FMP into one section.
    A notice of availability (NOA) for Amendment 45 was published in 
the Federal Register on August 5, 1998 (63 FR 41782), and the proposed 
rule was published on September 3, 1998 (63 FR 46993). The public 
comment period on the NOA ended on October 5, 1998, and the public 
comment period on the proposed rule ended on October 19, 1998. NMFS 
received four comments on the NOA and the proposed rule, one expressing 
general support for the amendment and three from other Federal agencies 
expressing ``no comment.'' No changes were made to this rule as a 
result of the comments. NMFS approved Amendment 45 on November 4, 1998. 
The reasons for implementing Amendment 45 are stated in the preamble of 
the proposed rule.
    The AFA was signed into law by the President on October 20, 1998, 
as part of the Omnibus Appropriations Bill FY99, (Pub. L. 105-277). 
Additional requirements for the pollock CDQ fisheries in the AFA 
supplement the requirements of Amendment 45 and must be implemented by 
NMFS before the start of the pollock CDQ fisheries on January 20, 1999. 
Specifically, section 206(a) of the AFA requires that 10 percent of the 
TAC of pollock in the BSAI shall be allocated as a directed fishing 
allowance to the CDQ program. Section 206(b) of the AFA requires that 
pollock bycatch in non-pollock CDQ fisheries will not accrue against 
the pollock CDQ allocation created in section 206(a). Finally, section 
213(a) of the AFA, with one limited exception at section 213(c)(2), 
requires that the 10-percent pollock CDQ allocation remain in effect 
until December 31, 2004.
    The AFA's requirement to allocate 10 percent of the pollock TAC to 
the pollock CDQ reserve through December 31, 2004, has the effect of 
supplementing the Council's recommendation in Amendment 45 to 
permanently allocate 7.5 percent of the pollock TAC to a pollock CDQ 
reserve. In this final rule implementing Amendment 45, NMFS will retain 
the 7.5-percent allocation of the pollock TAC to the pollock CDQ 
reserve. NMFS will implement the AFA's 10-percent allocation of the 
pollock TAC to the pollock CDQ reserve through the BSAI groundfish 
specifications for 1999. Later in 1999, NMFS intends to initiate 
proposed and final rulemaking that would implement through regulation 
the AFA's 10-percent allocation for the years 2000 through 2004. If, at 
the end of 2004, the Council has not taken action to extend the 10-
percent pollock CDQ allocation, the paragraph specifying a 10-percent 
allocation will expire and the pollock CDQ allocation will revert to 
7.5 percent of the pollock TAC starting in 2005.
    NMFS has determined that two types of changes to the Multispecies 
(MS) CDQ Program regulations must be implemented through an emergency 
interim rule in order for the CDQ Program-related provisions of the AFA 
to be effective by January 1999. These two regulatory changes are (1) 
to allow pollock bycatch in the non-pollock groundfish CDQ fisheries to 
accrue against the allowance for incidental catch of pollock 
established by section 206(b) of the AFA, and (2) to remove the 
allocation of squid from the CDQ Program in order to allow the CDQ 
groups to maximize the possibility that the pollock CDQ directed 
fishing allowance will be fully harvested.
    The AFA requires that NMFS implement these CDQ Program-related 
provisions of the AFA by January 1999. This deadline could not be met 
if the provisions were implemented through notice-and-comment 
rulemaking. At its November 1998 meeting, the Council concurred with 
NMFS's recommendation on this emergency interim rule.

Accounting for the Catch of Pollock in the CDQ Fisheries

    The AFA requires that NMFS distinguish between pollock harvested in 
a directed fishery for pollock CDQ and pollock harvested in the non-
pollock groundfish CDQ fisheries. Pollock harvested in the directed 
fisheries for pollock CDQ will accrue against the CDQ group's pollock 
CDQ allocation. Pollock harvested in other groundfish CDQ fisheries 
will not accrue against the CDQ group's pollock CDQ. This pollock catch 
will accrue against the pollock incidental catch allowance, established 
under section 206(b) of the AFA, for the incidental catch of pollock in 
groundfish fisheries other than pollock, including the non-

[[Page 3878]]

pollock open access fisheries and the non-pollock CDQ fisheries.
    NMFS considered two options for defining directed fishing for 
pollock CDQ. The first option was to define directed fishing for 
pollock CDQ on the basis of the amount of pollock that is retained by a 
vessel while CDQ fishing. If pollock retention exceeded the maximum 
retainable bycatch (MRB) amount, then the vessel would be considered 
directed fishing for pollock CDQ. If pollock retention were below the 
MRB amount, any catch of pollock by the vessel would not accrue against 
the pollock CDQ. However, NMFS decided not to pursue this option for 
two reasons. First, using MRB amounts would lead to regulatory discards 
by vessels that catch pollock but do not want to have their pollock 
catch accrue to the pollock CDQ. Second, several sections of the 
regulations governing directed fishing and the calculation of MRB 
amounts for the open access fisheries would have to be revised to 
accommodate the application of MRBs in the CDQ fisheries. These 
revisions would add further complexity to already complex regulations 
and would increase the difficulty of managing the open access and CDQ 
fisheries.
    The second option for defining directed fishing for pollock CDQ is 
to base the definition on the species composition of the haul by 
catcher/processors or of the delivery by catcher vessels. If the haul 
or delivery of pollock exceeds a certain percentage, the vessel will be 
considered directed fishing for pollock CDQ. NMFS selected this option 
because it does not require revisions to regulations governing the open 
access fisheries; it is simple to understand and apply; and it will not 
require regulatory discards of pollock.
    In the EA/RIR prepared by NMFS for the emergency interim rule (see 
ADDRESSES), NMFS examined data from the 1998 pollock CDQ fisheries and 
the non-pollock open access groundfish fisheries in the BSAI to 
determine the appropriate percentage of pollock in the catch that will 
distinguish directed fishing for pollock CDQ from other groundfish CDQ 
fishing. This percentage will minimize situations in which (1) a haul 
or delivery by a vessel intending to target pollock does not meet the 
definition of directed fishing for pollock CDQ, and (2) a haul or 
delivery by a vessel not intending to target pollock CDQ does meet the 
definition of directed fishing for pollock CDQ. However, regardless of 
the percentage threshold selected, some pollock vessels intending to 
target pollock will catch pollock in hauls or deliveries that do not 
meet the definition of directed fishing for pollock CDQ and will, 
therefore, accrue against the pollock incidental catch allowance. The 
opposite situation will also occur. Some vessels not intending to 
target pollock CDQ will catch pollock in hauls or make deliveries that 
exceed the selected percentage, in which case, this pollock will accrue 
against the CDQ group's pollock CDQ allocation.
    Based on the data examined in the EA/RIR for the emergency interim 
rule, NMFS selected 40 percent as an appropriate threshold percentage 
to distinguish directed fishing for pollock from directed fishing for 
other species in the CDQ fisheries. Data from the 1998 pollock CDQ 
fisheries show that, if the 40-percent threshold had been applied in 
1998, approximately 10 percent of the hauls and 0.20 percent of the 
pollock catch would not have been defined as occurring in the directed 
fishery for pollock CDQ. The 115 mt of pollock caught in these hauls, 
which did accrue to the 1998 pollock CDQ, would not have accrued to the 
pollock CDQ under the 40-percent threshold definition of directed 
fishing for pollock CDQ.
    Observer data from ten trawl catcher/processors eligible for the MS 
CDQ fisheries during their 1998 BSAI groundfish open access fisheries 
also were examined to provide information about the percent pollock 
represents in hauls from non-pollock groundfish fisheries. These data 
showed that 3 percent of the hauls and 26 percent of the total pollock 
catch by these catcher/processors in the 1998 BSAI non-pollock 
groundfish fisheries would have met the 40-percent pollock threshold. 
Although the future groundfish CDQ fisheries may not have the same 
amounts of total catch, catch composition, or fishing conditions, the 
distribution of pollock in the 1998 non-pollock fisheries is the best 
data available to predict the results of using a 40-percent threshold.
    Based on this information, NMFS believes that the 40-percent 
threshold provides a balance. It will result in most of the pollock 
catch by vessels intending to target pollock accruing to the pollock 
CDQ, and it will minimize the amount of pollock caught by vessels not 
intending to engage in directed fishing for pollock accruing to the 
pollock CDQ. Therefore, a new definition for directed fishing for 
pollock CDQ will be added under this emergency interim rule. Directed 
fishing for pollock CDQ will be defined as fishing that results in the 
following catch composition:
    (1) For each haul by a catcher/processor, the round weight of 
pollock represents 40 percent or more of the total round weight of all 
groundfish in the haul.
    (2) For each delivery by a catcher vessel, the round weight of 
pollock represents 40 percent or more of the total round weight of all 
groundfish delivered to a processor from a fishing trip.
    The CDQ groups will be required to examine the catch composition of 
each haul or delivery by vessels using trawl gear and to determine 
whether the haul or delivery meets the definition of directed fishing 
for pollock CDQ. If the haul or delivery meets this definition, the CDQ 
group must report this pollock catch to NMFS on its CDQ catch report. 
NMFS will subtract this pollock catch from the amount available under 
the pollock CDQ allocation. If the haul or delivery does not meet the 
definition of directed fishing for pollock CDQ, the CDQ group is not 
required to report any pollock catch on the CDQ catch report for that 
particular haul or delivery. NMFS will examine observer data from all 
CDQ vessels to (1) verify the accuracy of the CDQ catch report and (2) 
add up the pollock caught by CDQ vessels that were not directed fishing 
for pollock CDQ and subtract that amount from the pollock incidental 
catch allowance.
    Uncertainty exists concerning the appropriate percentage threshold 
because NMFS does not know how CDQ harvesting operations will be 
conducted under the new MS CDQ Program or how they may be affected by 
new conservation measures that NMFS will implement in 1999 to mitigate 
impacts of the pollock fisheries on Steller sea lions. NMFS intends to 
evaluate the impact of the 40-percent pollock threshold in the 1999 MS 
CDQ fisheries under this emergency interim rule. An adjustment to this 
threshold could be implemented under separate rulemaking if this 
percentage creates unanticipated constraints for the MS CDQ Program or 
creates an unintended opportunity for vessels participating in the MS 
CDQ fisheries to increase catch of pollock that will not accrue against 
the CDQ group's pollock CDQ allocation.
    This action does not implement any changes to the current Improved 
Retention/Improved Utilization (IR/IU) regulations under which all 
vessels fishing CDQ are required to retain all pollock.

Accounting for the Catch of Other Groundfish CDQ or PSQ Species in the 
Pollock CDQ Fisheries

    Under the regulations implementing Amendment 45, the pollock CDQ 
program will be integrated with the MS CDQ Program starting in 1999. 
One

[[Page 3879]]

change resulting from this integration is that incidental catch of non-
pollock groundfish CDQ species in the directed pollock CDQ fishery will 
accrue against a CDQ group's allocation for those species. The AFA is 
silent concerning the accounting for incidental catch of non-pollock 
groundfish CDQ species in the pollock CDQ fishery and addresses only 
the accounting for incidental catch of pollock in the non-pollock 
groundfish CDQ fishery. As a result, the incidental catch of non-
pollock groundfish CDQ species or prohibited species with a prohibited 
species quota (PSQ) in the pollock CDQ fishery must be subtracted from 
the CDQ group's CDQ and PSQ allocations.

Removing Squid as a CDQ Species

    The current 7.5-percent squid CDQ allocation has been identified in 
public comment to NMFS and the Council as a likely constraint to the 
full harvest of the current 7.5-percent pollock CDQ allocation. Most of 
the squid caught in the CDQ fisheries will be caught in the pollock CDQ 
fishery. Changes in fishing practices to reduce the incidental catch of 
squid in other groundfish CDQ fisheries are not expected to prevent 
attainment of the 7.5-percent squid CDQ allocation before attainment of 
the 7.5-percent pollock CDQ allocation. Therefore, an increase in the 
pollock CDQ allocation to 10 percent of the pollock TAC without an 
increase in the squid CDQ allocation is very likely to constrain 
harvest of the AFA's allocation of pollock CDQ.
    Squid bycatch in the 1998 pollock CDQ fisheries through November 6, 
1998, was examined in the EA/RIR prepared for the emergency interim 
rule (see ADDRESSES). Approximately 339 mt of squid were caught in the 
1998 pollock CDQ fisheries. The allocation of squid to the MS CDQ 
program in 1998 was 148 mt. In 1998, squid bycatch in the pollock CDQ 
fisheries did not accrue against the squid CDQ allocation. However, 
starting in 1999, under regulations implemented prior to the AFA, all 
squid bycatch in the pollock CDQ fisheries will accrue against the 
squid CDQ. Current regulations prohibit the CDQ groups from exceeding 
their squid CDQ. Starting in 1999, if the squid CDQ is reached before 
the pollock CDQ, existing CDQ regulations require the CDQ groups to 
stop fishing in any groundfish CDQ fisheries in which additional squid 
bycatch would be expected. Given existing regulations and the AFA 
increase in the pollock CDQ, the bycatch of squid likely will prevent 
the CDQ groups from catching their full pollock CDQ allocation. Based 
on the information in the EA/RIR, no other CDQ or PSQ allocation is 
likely to result in the same type of limitation on the catch of pollock 
CDQ.
    An increase in the squid CDQ allocation corresponding to the AFA's 
increased pollock CDQ allocation is not an available management 
measure. Section 305(i)(1)(C)(ii)(II) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) requires that, 
until October 1, 2001, the percentage of a groundfish TAC allocated to 
the CDQ Program cannot exceed the amount approved by the Council prior 
to October 1, 1995. Therefore, in order to implement the increased 
pollock CDQ allocation of the AFA and the Magnuson-Stevens Act CDQ 
provisions not superceded by the AFA, NMFS must remove squid from the 
CDQ Program. Removal of squid from the CDQ Program will eliminate this 
likely constraint to harvest of the AFA's pollock CDQ allocation and 
will further the ability of the CDQ Program to accomplish its economic, 
social, and developmental goals. By removing squid from the CDQ 
Program, the catch of squid by vessels CDQ fishing will accrue against 
the overall squid TAC, which will continue to be managed to ensure that 
catch in CDQ and non-CDQ fisheries remains within the TAC and does not 
exceed the overfishing limit and that no CDQ fishery will be 
constrained by a squid CDQ quota.

Changes From the Proposed Rule

    The following regulatory amendments were contained in the proposed 
rule but are not implemented in the final rule because they conflict 
with elements of the emergency interim rule implemented to comply with 
the AFA:
    1. In Sec. 679.31, the separate paragraph (a) specifying the 
pollock CDQ reserve is not removed but is revised by removing the 
expiration date. Paragraphs (b) through (g) are not redesignated 
because the AFA requires specification of the pollock CDQ reserve 
separately from the other groundfish CDQ reserves.
    2. The proposed revision to the definition of the halibut CDQ 
reserve in Sec. 679.2 is not implemented because reference to a new 
paragraph number for the halibut CDQ reserve in Sec. 679.31 is not 
necessary.
    3. The separately specified pollock CDQ reserve in 
Sec. 679.20(b)(1)(iii)(A) is not removed. The pollock CDQ reserve must 
continue to be specified separately from the other groundfish CDQ 
reserves because the percentage allocation for pollock CDQ under the 
AFA (10 percent) differs from the percentage allocation for most other 
groundfish CDQ species (7.5 percent).
    The following changes are made in the final rule:
    1. A new definition is added for the American Fisheries Act.
    2. A December 31, 1998, expiration date is removed from the 
definition for ``Community Development Quota Program.'' This sunset 
date was implemented under the inshore/offshore allocations and should 
have been proposed to be permanently extended under the proposed rule 
for Amendment 45.
    3. The preamble to the proposed rule stated that NMFS was proposing 
to revise the definition of ``CDQ reserve'' so that it applied to any 
CDQ species (groundfish, halibut, or crab) rather than to groundfish 
CDQ only. However, NMFS inadvertently left out the revised definition 
in the proposed regulatory text. NMFS is including this definition in 
the final rule because it clarifies and corrects a definition without 
implementing a restriction. The public was provided with an opportunity 
to comment on the change as described in the preamble of the proposed 
rule.
    4. The following definition for groundfish CDQ fishing expired on 
December 31, 1998: ``groundfish CDQ fishing means fishing by an 
eligible vessel listed on an approved CDP that results in the catch of 
any CDQ or PSQ species other than pollock CDQ, halibut CDQ, and fixed 
gear sablefish CDQ.'' This definition was necessary because the pollock 
CDQ fisheries, fixed gear halibut and sablefish CDQ fisheries and the 
MS groundfish CDQ fisheries were managed under different regulations 
through December 31, 1998. Under current regulations, pollock and fixed 
gear sablefish are integrated with the MS groundfish CDQ fisheries 
starting in 1999, although the AFA has since superceded some aspects of 
this integration. A slightly revised definition is necessary to support 
the current MS groundfish CDQ regulations and should have been included 
in the proposed rule for Amendment 45. The revised definition states 
that ``groundfish CDQ fishing means fishing by an eligible vessel 
listed on an approved CDP that results in the catch of any groundfish 
CDQ species.'' The revised definition does not conflict with separate 
definitions for directed fishing for pollock CDQ under the emergency 
interim rule. A new definition for halibut CDQ fishing will be 
addressed in a future proposed rulemaking.
    5. The prohibition currently at Sec. 679.7(d)(24), which applies 
only in 1998 and prohibits the use of other than pelagic trawl gear in 
the pollock CDQ

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fisheries, is removed. This prohibition was recommended by the Council 
at its meeting in April 1996 to minimize the amount of bycatch in the 
1998 pollock CDQ fisheries that would accrue against TAC and prohibited 
species catch limits for the moratorium groundfish fisheries. This 
recommendation was made because bycatch in the 1998 pollock CDQ 
fisheries did not accrue against the multispecies groundfish CDQs or 
against the prohibited species quotas. The Council had recommended that 
the current prohibition be implemented only for 1998. However, at its 
June 1998 meeting, the Council recommended that NMFS prepare proposed 
rulemaking that would prohibit using other than pelagic gear in all 
BSAI pollock fisheries. If implemented, this prohibition would apply to 
the pollock CDQ fisheries in the future. Furthermore, the 1999 annual 
groundfish specifications allocate zero amounts of pollock to the 
directed fishery for pollock using non-pelagic trawl gear under 
Sec. 679.20(a)(5)(i)(B). This prohibition will also apply to the 1999 
pollock CDQ fishery.
    6. In Sec. 679.32(a)(1), the applicability paragraph is revised to 
remove reference to paragraphs (a)(2) and (a)(3) of this section which 
expired on December 31, 1998. See below for an explanation of a new 
paragraph (a)(4) that is added under this emergency interim rule.
    7. In Sec. 679.50(c)(4), reference to Sec. 679.32(e) at the 
beginning of the paragraph is removed because it referred to the 
section that sunset on December 31, 1998.
    The following emergency interim rule is implemented to comply with 
the AFA. These requirements are effective for 180 days after January 
21, 1999.
    1. A new definition is added for ``Directed fishing for pollock 
CDQ.'' This definition and the reason for it was discussed in a 
previous section.
    2. The definition for ``Groundfish CDQ fishing (applicable through 
December 31, 1998)'' is amended to remove a separate reference to 
pollock CDQ fishing and fixed gear that applied through December 31, 
1998.
    3. Section 679.20(b)(1)(iii)(A) is suspended and a new paragraph 
(b)(1)(iii)(D) is added to remove squid as a CDQ species.
    4. In Sec. 679.32, paragraphs (a)(2) and (a)(3) expired on December 
31, 1998, and are suspended. In Sec. 679.32, a new paragraph (a)(4) is 
added to reference requirements for pollock CDQ under the emergency 
interim rule in paragraph (g) of this section.
    5. Section 679.32(e) expired on December 31, 1998 and is suspended. 
Under this emergency interim rule, a new Sec. 679.32(g) is added to 
address the accounting of pollock in the groundfish CDQ fisheries. 
Section 679.32(g)(1) requires that pollock caught by vessels directed 
fishing for pollock accrue against the pollock CDQ and that this 
pollock CDQ must be reported on the CDQ catch report. Section 
679.32(g)(2) requires that pollock caught by vessels that are not 
directed fishing for pollock does not accrue against the pollock CDQ. 
This pollock catch must not be reported on the CDQ catch report. 
Section 679.32(g)(3) reiterates that all pollock caught in any 
groundfish CDQ fishing must be retained under the IR/IU regulations.

Compliance Guide for Small Entities

    The Small Business Regulatory Enforcement Fairness Act requires 
NMFS to prepare a compliance guide that explains how small entities 
must comply with the regulations implemented in this final rule and 
this emergency interim rule.
    The small entities affected by this rule are the 6 CDQ groups, the 
56 western Alaska communities eligible for the CDQ program, 4 of the 
Alaskan communities whose residents participate in the BSAI pollock 
fisheries but are not eligible for the CDQ program, 140 catcher vessels 
using trawl gear, 31 catcher/processors using trawl gear, 3 
motherships, and 8 shoreside processing plants (see additional 
discussion of impacts in the Classification section).
    All of these small entities are affected by the permanent 7.5-
percent extension of the pollock CDQ allocation. Direct participants in 
the fisheries, including the CDQ groups, their harvesting and 
processing partners, and the vessels and processors that participate in 
the open access pollock fisheries are required to conduct their pollock 
fisheries so that the catch of pollock does not exceed the quotas 
established by this rule and by other regulations governing the BSAI 
pollock quotas.
    The CDQ groups are required to monitor and accurately report the 
catch of pollock CDQ. They must evaluate each haul by a catcher/
processor or delivery by a catcher vessel to determine whether pollock 
represents 40 percent or more of the total groundfish catch weight. If 
this criteria is met, the pollock catch must be reported on the CDQ 
catch report subtracted from the CDQ group's available pollock CDQ. If 
the haul or delivery does not meet the 40 percent threshold, the CDQ 
group must not report this pollock catch on the CDQ catch report. This 
pollock catch will be monitored by NMFS through data collected by the 
CDQ observer and will be subtracted from the amount of pollock 
available to the CDQ and non-CDQ fisheries in the incidental catch 
allowance.
    The removal of squid as a CDQ species does not result in any 
additional requirements on any participant in the CDQ or non-CDQ 
fisheries.
    No additional recordkeeping or reporting requirements are placed on 
the vessels or processors participating in the pollock or other MS 
groundfish CDQ fisheries or on the communities affected by the pollock 
CDQ allocation.

Classification

    The Administrator, Alaska Region, NMFS, (Regional Administrator) 
determined that the final rule implementing Amendment 45 and the 
emergency interim rule implementing parts of the AFA are necessary for 
the conservation and management of the groundfish fisheries of BSAI. 
The Regional Administrator also determined that this final rule and 
emergency interim rule are consistent with the Magnuson-Stevens Act and 
other applicable laws.
    The final rule and the emergency interim rule have been determined 
to be not significant for purposes of E.O. 12866.
    NMFS prepared a final regulatory flexibility analysis for Amendment 
45. Amendment 45 is necessary to continue the allocation of pollock to 
the CDQ Program after December 31, 1998. NMFS received no comments on 
the Initial Regulatory Flexibility Analysis.
    The analysis estimates that the total universe of entities affected 
by regulations governing the BSAI pollock fishery is 249. Of these, 130 
are small entities. The total universe comprises 6 CDQ groups, 56 
western Alaska communities eligible for the CDQ program, 5 communities 
whose residents participate in the BSAI pollock fisheries but are not 
eligible for the CDQ program, 140 catcher vessels using trawl gear, 31 
catcher/processors using trawl gear, 3 motherships, and 8 shoreside 
processing plants. The small entities are the 6 CDQ groups, the 56 
western Alaska communities eligible for the CDQ program, 4 of the 
Alaskan communities whose residents participate in the BSAI pollock 
fisheries but are not eligible for the CDQ program, and 64 of the 
catcher vessels.
    The 64 catcher vessels participating in the BSAI pollock fisheries 
could be significantly impacted by the pollock CDQ allocation because a 
7.5-percent reduction in the pollock TAC may reduce the annual gross 
revenues of these vessel owners by more than 5

[[Page 3881]]

percent relative to the alternative of not allocating pollock to the 
CDQ program. The impact of the pollock CDQ allocation on the four 
Alaskan non-CDQ communities (Unalaska, Sand Point, King Cove, and 
Kodiak) is not known but could be significant depending on the amount 
of annual revenue lost because pollock CDQ may be processed at 
different plants than pollock from the open access fisheries. The 64 
catcher vessels and four non-CDQ communities represent 52 percent of 
the small entities in the BSAI pollock fisheries.
    The 6 CDQ groups representing 56 western Alaska communities derive 
a significant portion of their CDQ revenues from the pollock CDQ 
allocation. Allocating 7.5 percent of the pollock TAC to the CDQ 
program will allow these small entities to continue to benefit from the 
pollock CDQ fisheries. Not reauthorizing the pollock CDQ allocation 
would have a significant impact on these small entities.
    NMFS considered two alternatives that could have mitigated the 
negative economic impacts on the small entities affected by this 
action. The first alternative would be to allocate 3.5 percent of 
pollock TAC to the CDQ reserve. Although this alternative would benefit 
the small entities not receiving CDQ allocation, the benefits accruing 
to the 56 CDQ communities would be considerably less. The alternatives 
that those communities have for generating income and investment are so 
small that the reduction from 7.5 percent to 3.5 percent reserve would 
be likely to produce significant negative economic impacts on these 
small entities. The trade off is clear; by reserving 3.5 percent 
instead of 7.5 percent, the catcher vessels gain at the expense of the 
CDQ communities. However, because of the relative absence of 
alternative economic bases in the CDQ communities, those communities 
will experience a relatively greater economic impact than would other 
regions of the State and the country in general.
    The second alternative would be to let the present reserve of 7.5 
percent of pollock TAC expire at the end of 1998. This action would 
result in a further shift of impacts from one set of small entities to 
another. It would benefit the non-CDQ participants in the fishery while 
cutting revenues of the CDQ groups.
    Because the CDQ program is allocative by nature, any approved 
alternative will affect small entities. If the 7.5 percent allocation 
alternative were found to be inconsistent with the Magnuson-Stevens 
Act, NMFS could only disapprove it. Reconsideration of the 3.5 percent 
or other allocation alternatives by the Council and the public would be 
time consuming and disruptive to the ongoing CDQ program. Because this 
rule is an allocation from one group of small entities to another, the 
Council weighed the economic and social effects and selected its 
preferred alternative as a legal alternative for achieving its 
statutory objective of allocating the TAC of pollock in the Bering Sea 
and Aleutian Islands fishery to the CDQ program.
    A copy of this analysis is available from NMFS (see ADDRESSES).
    The portions of this rule implemented as an emergency interim rule 
are exempt from the procedures of the Regulatory Flexibility Act 
because these portions of the rule are issued without opportunity for 
prior public comment.
    NMFS finds that good cause, under the authority contained in 5 
U.S.C. 553(d)(3), exists to waive the 30-day delay in effective date 
for the provisions implemented by the final rule. The primary provision 
of the final rule is to permanently extend the 7.5% pollock CDQ 
allocation. This provision, which must be effective to coincide with 
the effective date of the emergency interim rule provisions prior to 
the start of the pollock CDQ fisheries on January 20, 1999, would not 
require any regulated entities to take any steps to come into 
compliance. As such, a delay in effective date is both unnecessary and 
contrary to the public interest.
    NMFS also finds that the emergency portion of this rule 
implementing mandatory provisions of the AFA must be effective by 
January 20, 1999. The AFA was enacted October 20, 1998, and contains 
provisions which must be in place prior to the start of the pollock 
fishery on January 20, 1999. Given this very short time between 
enactment and the opening of the fishery, there was not sufficient time 
to accept prepromulgation comment on these provisions. Further, if the 
procedure for promulgating these rules went beyond January 20, the 
fishing season could not begin as scheduled. As such, there is good 
cause to waive the requirement to provide prior notice and the 
opportunity for public comment pursuant to authority set forth at 5 
U.S.C. 553(b)(B), as such procedures would be impracticable and 
contrary to the public interest. Similarly, the need to implement these 
emergency measures by January 20, 1999, the opening of the pollock 
fishery, so that the CDQ groups may fully harvest their pollock CDQ and 
properly account for their pollock bycatch as established in the AFA, 
constitutes good cause under the authority contained in 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effective date.
    The emergency interim rule contains a reduction in a collection-of-
information requirement subject to the Paperwork Reduction Act. The 
collection of this information has been approved by the Office of 
Management and Budget, OMB control number 0648-0269. Shoreside 
processors and CDQ groups currently are required to report all pollock 
harvested in the CDQ fisheries on CDQ delivery reports and CDQ catch 
reports. This emergency interim rule requires that the incidental catch 
of pollock in non-pollock CDQ fisheries not be reported on the CDQ 
delivery report and the CDQ catch report.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with that directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this emergency 
interim rule.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: January 20, 1999.
Andrew A. Rosenberg,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

    Authority: 16 U.S.C. 773 et seq., 1801 et seq. and 3631 et seq.

    2. In Sec. 679.2, the definitions for ``Community Development Quota 
Program (CDQ Program)(applicable through December 31, 1998)'', 
``Community Development Quota Reserve (CDQ Reserve) (applicable through 
December 31, 1998)'', ``Pollock CDQ fishing'' and ``Sablefish CDQ 
reserve'' are removed; the definitions for ``CDQ allocation'', 
``Community Development Quota'', ``PSQ allocation'', and ``PSQ 
species'' are revised; the definition for ``Groundfish CDQ fishing 
(applicable through December 31, 1998)'' is suspended; and new 
definitions for ``American Fisheries Act (AFA)'', ''Community 
Development Quota Program (CDQ Program)'', ``Community Development 
Quota Reserve'', ``Groundfish CDQ fishing'', ``Directed fishing for 
pollock CDQ'', and

[[Page 3882]]

``Fixed gear sablefish CDQ reserve'' are added in alphabetical order to 
read as follows:


Sec. 679.2  Definitions.

* * * * *
    American Fisheries Act (AFA) means Title II--Fisheries Subtitles I 
and II, as cited within the Omnibus Appropriations Bill FY99 (Pub. L. 
105-277).
* * * * *
    CDQ allocation means a percentage of a CDQ reserve specified under 
Sec. 679.31 that is assigned to a CDQ group when NMFS approves a 
proposed CDP.
* * * * *
    Community Development Quota (CDQ) means the amount of a CDQ species 
established under Sec. 679.31 that is allocated to the CDQ program.
    Community Development Quota Program (CDQ Program) means the Western 
Alaska Community Development Quota Program implemented under subpart C 
of this part.
    Community Development Quota reserve (CDQ reserve) means a 
percentage of a total allowable catch for groundfish, a percentage of a 
catch limit for halibut, or percentage of a guideline harvest level for 
crab that has been set aside for purposes of the CDQ program.
* * * * *
    Directed fishing for pollock CDQ means fishing that results in the 
following:
    (1) For each haul by a catcher/processor, the round weight of 
pollock represents 40 percent or more by weight of the total round 
weight of all groundfish in the haul.
    (2) For each delivery by a catcher vessel, the round weight of 
pollock represents 40 percent or more by weight of the total round 
weight of all groundfish delivered to the processor.
* * * * *
    Fixed gear sablefish CDQ reserve means 20 percent of the sablefish 
fixed gear TAC for each subarea in the BSAI for which a sablefish TAC 
is specified under Sec. 679.20(b)(1)(iii)(B). See also Sec. 679.31(b).
* * * * *
    Groundfish CDQ fishing means fishing by an eligible vessel listed 
on an approved CDP that results in the catch of any groundfish CDQ 
species.
* * * * *
    PSQ allocation means a percentage of a PSQ reserve specified under 
Sec. 679.21(e)(1)(i) and (e)(2)(ii) that is assigned to a CDQ group 
when NMFS approves a proposed CDP. See also Sec. 679.31(d).
    PSQ species means any species that has been assigned to a PSQ 
reserve under Sec. 679.21(e)(1)(i) and (e)(2)(ii) for purposes of the 
CDQ program. See also Sec. 679.31(d).
* * * * *


Sec. 679.7  [Amended]

    3. In Sec. 679.7, paragraph (d)(24) is removed and paragraphs 
(d)(25) through (d)(28) are redesignated as paragraphs (d)(24) through 
(d)(27), respectively.
    4. In Sec. 679.20, paragraphs (b)(1)(iii)(A) is suspended and 
paragraph (b)(1)(iii)(D) is added to read as follows:


Sec. 679.20  General limitations.

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (D) Groundfish CDQ. Except as limited by Sec. 679.31(a) and section 
206(a) of the AFA, one half of the nonspecified reserve established by 
paragraph (b)(1)(i) of this section for all species except squid is 
apportioned to the groundfish CDQ reserve.
* * * * *
    5. In Sec. 679.30, paragraph (a)(4) is revised to read as follows:


Sec. 679.30  General CDQ regulations.

    (a) * * *
    (4) Request for CDQ and PSQ allocations. A list of the percentage 
of each CDQ reserve and PSQ reserve, as described at Sec. 679.31 that 
is being requested. The request for allocations of CDQ and PSQ must 
identify percentage allocations requested for CDQ fisheries identified 
by the primary target species of the fishery as defined by the 
qualified applicant and the gear types of the vessels that will be used 
to harvest the catch.
* * * * *


Sec. 679.31  [Amended]

    6. In Sec. 679.31, paragraph (a) is amended by removing 
parenthetical `` (applicable through December 31, 1998)''.
    7. In Sec. 679.32, paragraph (a)(1) is revised, paragraphs (a)(2), 
(a)(3), and (e) are suspended and new paragraphs (a)(4) and (g) are 
added to read as follows:


Sec. 679.32  Groundfish and halibut CDQ catch monitoring.

    (a) Applicability. (1) The CDQ group, the operator of a vessel, and 
the manager of a shoreside processor must comply with the requirements 
of paragraphs (b) through (d) of this section while groundfish CDQ 
fishing as defined at Sec. 679.2. In addition, the CDQ group is 
responsible for ensuring that vessels and processors listed as eligible 
on the CDQ group's approved CDP comply with all requirements of this 
section while harvesting or processing CDQ species.
* * * * *
    (4) Requirements for the accounting of pollock while CDQ fishing 
are at paragraph (g) of this section.
* * * * *
    (g) Pollock CDQ--(1) Directed fishing for pollock CDQ. Owners and 
operators of vessels directed fishing for pollock CDQ as defined at 
Sec. 679.2 and processors taking deliveries from vessels directed 
fishing for pollock CDQ must comply with all applicable requirements of 
paragraphs (a) through (d) of this section. Pollock catch by vessels 
directed fishing for pollock CDQ will accrue against the pollock CDQ 
for the CDQ group. The CDQ group must report all pollock caught by 
vessels directed fishing for pollock CDQ on the CDQ catch report.
    (2) Catch of pollock by vessels not directed fishing for pollock 
CDQ. Pollock catch by vessels groundfish CDQ fishing, but not directed 
fishing for pollock CDQ as defined at Sec. 
    679.2, will not accrue against the pollock CDQ for the CDQ group. 
The CDQ group must not report this pollock catch on the CDQ catch 
report.
    (3) Vessel operators must retain all pollock caught in any 
groundfish CDQ fishery as required at Sec. 679.27 (IR/IU).
* * * * *
    8. In Sec. 679.50, paragraph (c)(4) is revised to read as follows.


Sec. 679.50  Groundfish Observer Program applicable through December 
31, 2000.

* * * * *
    (c) * * *
    (4) Groundfish CDQ fisheries. The owner or operator of a vessel 
groundfish CDQ fishing as defined at Sec. 679.2 must comply with the 
following minimum observer coverage requirements each day that the 
vessel is used to harvest, transport, process, deliver, or take 
deliveries of CDQ or PSQ species. The time required for the CDQ 
observer to complete sampling, data recording, and data communication 
duties shall not exceed 12 hours in each 24-hour period and the CDQ 
observer is required to sample no more than 9 hours in each 24-hour 
period.
* * * * *
[FR Doc. 99-1605 Filed 1-21-99; 12:53 pm]
BILLING CODE 3510-22-F