[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
[[Page 3880]]
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