[Federal Register Volume 68, Number 241 (Tuesday, December 16, 2003)]
[Rules and Regulations]
[Pages 69974-69977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30921]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 031009255-3302-02; I.D. 092503A]
RIN 0648-AQ88


Fisheries of the Exclusive Economic Zone Off Alaska; Revision to 
the Management of ``Other Species'' Community Development Quota

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to modify the management of the 
``other species'' Community Development Quota (CDQ) reserve by 
eliminating specific allocations of ``other species'' CDQ to individual 
CDQ managing organizations (CDQ groups) and, instead, allowing NMFS to 
manage the ``other species'' CDQ reserve with the general limitations 
used to manage the catch of non-CDQ groundfish in the Bering Sea and 
Aleutian Islands management area (BSAI). This action also eliminates 
the CDQ non-specific reserve and makes other changes to improve the 
clarity and consistency of CDQ Program regulations. This action is 
necessary to improve NMFS' ability to effectively administer the CDQ 
Program. It is intended to further the goals and objectives of the 
North Pacific Fishery

[[Page 69975]]

Management Council (Council) with respect to this program.

DATES: Effective December 15, 2003, except for amendments to Sec. Sec.  
679.2, 679.7, the introductory paragraph to 679.31, and 679.32 which 
are effective January 15, 2004.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action may be obtained from NMFS, Alaska Region, P.O. Box 21668, 
Juneau, AK 99802, Attn: Lori Durall.

FOR FURTHER INFORMATION CONTACT: Obren Davis, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive 
economic zone (EEZ) of the BSAI are managed under the Fishery 
Management Plan for the Groundfish Fishery of the Bering Sea and 
Aleutian Islands Area (FMP). The Council prepared the FMP pursuant to 
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 FMP appear at 50 CFR parts 600 and 679.
    Regulations codified at 50 CFR part 679 implement the multispecies 
CDQ Program, a limited access system that provides exclusive harvesting 
privileges to a portion of the total allowable catches for halibut, 
crab and groundfish to eligible western Alaska communities. The purpose 
of this program is to provide the means for starting or supporting 
commercial fisheries business activities that will result in ongoing, 
regionally based, fisheries-related economic benefits for residents of 
eligible communities. NMFS allocates varying amounts of commercially 
valuable CDQ target species to CDQ groups each year. The harvest of 
these species provides a financial means for CDQ groups to fund 
economic development projects in support of overall program objectives.
    This action would modify the management of the ``other species'' 
CDQ reserve and amend regulations to distinguish between the management 
of those groundfish CDQ reserves that are allocated to CDQ groups and 
those that are not. The ``other species'' complex is comprised of 
various species of sharks, skates, sculpins, and octopi. These species 
are incidentally caught with CDQ target species such as pollock, 
Pacific cod, sablefish, Atka mackerel, and flatfish. Exceeding an 
annual CDQ allocation results in an enforcement action against a CDQ 
group, which may include monetary or other penalties. To avoid 
exceeding their ``other species'' allocations, CDQ groups may have to 
modify their fishing practices by fishing in new or different locations 
or ceasing to fish for some target species. Failing to completely 
harvest CDQ target species allocations has an economic impact on CDQ 
groups and the CDQ communities when revenues are foregone, which may 
adversely affect the accomplishment of projects intended to foster 
economic development in western Alaska communities.
    Under this action the ``other species'' CDQ reserve would still be 
established annually, but would no longer be allocated to CDQ groups. 
All catch of ``other species'' in the groundfish CDQ fisheries would 
accrue towards this reserve, rather than towards specific allocations 
to individual CDQ groups. Eliminating individual ``other species'' 
allocations would eliminate the potential that some CDQ target 
allocations would be unharvested for lack of ``other species'' bycatch, 
or that groups would incur enforcement actions for exceeding an annual 
``other species'' CDQ allocation. Some CDQ groups receive allocations 
of ``other species'' CDQ that are not necessarily proportionate to the 
amount CDQ target species they are allocated, while other groups 
receive adequate amounts or even have surplus ``other species'' 
remaining at the end of each year. NMFS would manage the ``other 
species'' CDQ reserve as a whole with management measures in Sec.  
679.20(d). These measures provide the means to manage the catch of 
``other species'' in both the CDQ and non-CDQ groundfish fishery.
    This final rule makes the following changes to CDQ Program 
regulations: (1) amends the content and headings of definitions 
associated with the CDQ Program; (2) revises a prohibition associated 
with calculating maximum retainable amounts of CDQ catch; (3) amends 
the introductory paragraph that discusses CDQ reserves; (4) amends 
regulations to distinguish how NMFS will manage groundfish CDQ reserves 
apportioned to CDQ groups and how it will manage groundfish CDQ 
reserves that are not apportioned to CDQ groups; (5) amends regulations 
to specify that the ``other species'' CDQ reserve, is not allocated 
among CDQ groups; (6) amends regulations to allow NMFS to manage the 
``other species'' CDQ reserve with fishery management measures 
typically used in non-CDQ fisheries; (7) amends regulations to describe 
how NMFS will apply CDQ percentage allocations to revised total 
allowable catch (TAC) categories that may arise from the annual 
groundfish harvest specifications process; and (8) amends catch 
monitoring requirements to align them with revisions to CDQ-related 
definitions. This action also will rescind the ``other species'' CDQ 
percentage allocations made to individual CDQ groups on January 17, 
2003, and supercede the Alaska Regional Administrator's 2003-2005 
allocation decision pertaining to this CDQ reserve category. These 
changes are necessary to promote the ability of CDQ groups to more 
fully utilize their annual groundfish CDQ allocations in support of the 
goals of the CDQ Program, to enhance NMFS' ability to administer the 
program, and to improve the consistency and clarity of CDQ Program 
regulations.
    NMFS published a proposed rule to modify the management of the 
``other species'' CDQ reserve on October 22, 2003 (68 FR 60327), with 
comments invited through November 6, 2003. The preamble to the proposed 
rule contains a full description and justification of the regulatory 
revisions implemented by this action. The preamble also contains 
additional background on the general history of the CDQ program and 
specific management measures used to allocate and account for the catch 
of ``other species'' CDQ, as well as the purpose and need for this 
action. No letters of comment were received by the end of the comment 
period. No changes were made from the proposed rule.

Classification

    For the reasons set forth below, the Assistant Administrator finds 
that the primary provision of this action relieves a restriction, 
thereby making the normal 30-day delay in effective date inapplicable 
to the amendment to Sec.  679.31(f). Without this action, existing 
regulations prohibit CDQ groups from exceeding any CDQ allocation, as 
discussed in the preamble. CDQ groups likely will have to curtail some 
of their target fisheries because they lack adequate ``other species'' 
CDQ to account for the incidental catch of such species. In this event, 
CDQ groups would forfeit some of the revenues that they would otherwise 
receive from the complete harvest of their CDQ target allocations. This 
would result in unnecessary adverse impacts to eligible communities 
that are dependent on CDQ royalties to fund economic development 
projects or on groundfish CDQ harvesting operations to provide 
employment to residents. This action would remove the allocation of CDQ 
``other species'' to the CDQ groups and authorize management of CDQ 
``other

[[Page 69976]]

species'' harvest at the CDQ reserve level and under the general 
management provisions at 50 CFR 679.20(d), thus relieving a restriction 
and allowing CDQ groups to continue fishing operations for CDQ target 
allocations without being curtailed by the group's harvest of ``other 
species.'' It is anticipated that this action will allow CDQ groups and 
their eligible communities to realize the benefits associated with the 
harvest of valuable CDQ target allocations. Therefore, under the 
authority set forth at 5 U.S.C. 553(d)(1) and (3), the revision to 
Sec.  679.31(f) is effective immediately upon filing with the Office of 
the Federal Register.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) that 
contains the items specified in 5 U.S.C. 604(a). A copy of the EA/RIR/
FRFA is available from NMFS (see ADDRESSES). The need for and 
objectives of this action are discussed in the preamble to this rule 
and in more detail in the proposed rule published October 22, 2003 (68 
FR 60327). This rule: (1) amends the management of the ``other 
species'' CDQ reserve to discontinue allocating this reserve among CDQ 
reserves; (2) allows NMFS to manage the ``other species'' CDQ reserve 
with management measures currently used in the non-CDQ groundfish 
fishery; (3) eliminates the CDQ non-specific reserve mechanism; and (4) 
implements an assortment of regulatory revisions affiliated with the 
revision to the management of the ``other species'' CDQ reserve and 
changes to CDQ-related definitions.
    NMFS prepared an IRFA to evaluate the impacts of this action on 
directly regulated small entities in compliance with the requirements 
of Section 603 of the Regulatory Flexibility Act. The IRFA was 
described in the classifications section of the proposed rule. The 
public comment period ended November 6, 2003. No comments related to 
the economic impact of this action were received.
    The small entities that will be directly regulated by this action 
are the six CDQ groups that represent the 65 western Alaska communities 
that currently participate in the CDQ Program. This regulation will not 
impose new recordkeeping or reporting requirements on the regulated 
small entities.
    This action relieves a constraint on CDQ groups to completely 
harvest their groundfish CDQ target species. NMFS considered, but did 
not adopt, a status quo alternative to the action because the 
alternative would not achieve the Council's objective for this action. 
Three additional alternatives also were identified for this action, but 
were not carried forward for further analysis. Two of the rejected 
alternatives encompassed allocative changes to the ``other species'' 
category that would have been difficult to accurately calculate to the 
degree that they would reliably benefit CDQ groups in the future. These 
rejected alternatives might also have been controversial to other BSAI 
fishery components due to concerns that such allocative changes could 
have adverse impacts on the successful prosecution of future non-CDQ 
fisheries. A third rejected alternative would have been contrary to 
statutory provisions of the Magnuson-Stevens Act. These alternatives 
were discussed in further detail in the classification section of the 
proposed rule.

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 a small entity is 
required to take to comply with a rule or group of rules. Small 
entities are not required to take any additional actions to comply with 
this action. This final rule constitutes the agency's small entity 
compliance guide pursuant to Section 212 of the Small Business 
Regulatory Enforcement Fairness Act of 1996. Copies of this final rule 
are available from NMFS (see ADDRESSES) and at the following web site: 
http://www.fakr.noaa.gov/

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: December 9, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons set out in the preamble, 50 CFR part 679 is amended as 
follows:

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

0
1. The authority citation for part 679 continues to read as follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et 
seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub L. 
106-31, 113 Stat. 57; 16 U.S.C. 1540(f).

0
2. In Sec.  679.2, the definitions for ``Community Development Quota,'' 
``Community Development Quota Program,'' ``Community Development Quota 
reserve,'' and ``Prohibited species quota (PSQ)'' are removed; the 
definitions for ``CDQ,'' ``CDQ Program,'' ``CDQ reserve,'' ``PSQ,'' and 
``PSQ reserve'' are added in alphabetical order; and the definitions 
for ``CDQ species'' and ``PSQ species'' are revised to read as follows:


Sec.  679.2  Definitions.

* * * * *
    CDQ means community development quota and is the amount of a CDQ 
reserve that is allocated to a CDQ group.
* * * * *
    CDQ Program means the Western Alaska Community Development Quota 
Program implemented under subpart C of this part.
* * * * *
    CDQ reserve means a percentage of each groundfish TAC apportioned 
under Sec.  679.20(b)(1)(iii), a percentage of a catch limit for 
halibut, or a percentage of a guideline harvest level for crab that has 
been set aside for purposes of the CDQ Program.
    CDQ species means any species or species group that is allocated 
from a CDQ reserve to a CDQ group.
* * * * *
    PSQ means prohibited species quota and is the amount of a PSQ 
reserve that is allocated to a CDQ group.
* * * * *
    PSQ reserve means the percentage of a prohibited species catch 
limit established under Sec.  679.21(e)(1) and (e)(2) that is allocated 
to the groundfish CDQ program under Sec.  679.21(e)(1)(i) and 
(e)(2)(ii).
    PSQ species means any species or species group that has been 
allocated from a PSQ reserve to a CDQ group.
* * * * *

0
3. In Sec.  679.7, paragraph (d)(16) is revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (d)* * *
    (16) Use any groundfish accruing against a CDQ reserve as a basis 
species for calculating retainable amounts of non-CDQ species under 
Sec.  679.20.
* * * * *

0
4. In Sec.  679.31, the introductory paragraph to this section and 
paragraph (f) are revised to read as follows:

[[Page 69977]]

Sec.  679.31  CDQ Reserves.

    Portions of the CDQ and PSQ reserves for each subarea or district 
may be allocated for the exclusive use of CDQ groups in accordance with 
CDPs approved by the Governor in consultation with the Council and 
approved by NMFS. NMFS will allocate no more than 33 percent of each 
CDQ reserve to any one group with an approved CDP.
* * * * *
    (f) Management of the Groundfish CDQ Reserves--(1) Groundfish CDQ 
reserves allocated among CDQ groups. (i) Except as limited by paragraph 
(f)(2) of this section, the groundfish CDQ reserves are apportioned 
among CDQ groups using percentage allocations approved by NMFS under 
Sec.  679.30(d).
    (ii) If the groundfish harvest specifications required by Sec.  
679.20(c) change the species comprising a TAC category or change a TAC 
category by combining or splitting management areas, then the CDQ 
percentage allocations approved by NMFS for the original TAC category 
will apply to any new categories.
    (iii) A CDQ group is prohibited by Sec.  679.7(d)(5) from exceeding 
an annual groundfish CDQ amount allocated to it.
    (iv) NMFS may specify limitations or prohibitions to prevent 
overfishing of any BSAI groundfish species, including measures specific 
to groundfish CDQ species allocated among CDQ groups (see Sec.  
679.20(d)(3)).
    (2) Groundfish CDQ reserves not allocated among CDQ groups. (i) The 
``other species'' CDQ reserve, or individual species that comprise the 
``other species'' CDQ reserve, will not be allocated among CDQ groups.
    (ii) Groundfish CDQ reserves not allocated among CDQ groups will be 
managed at the CDQ reserve level under general limitations at Sec.  
679.20(d).

0
5. In Sec.  679.32, paragraph (c)(1)(i) is revised to read as follows:


Sec.  679.32  Groundfish and halibut CDQ catch monitoring.

* * * * *
    (c) * * *
    (1) Catcher vessels without an observer. (i) Operators of catcher 
vessels less than 60 ft (18.3 m) LOA must retain all groundfish CDQ 
species, halibut CDQ, and salmon PSQ until they are delivered to a 
processor that meets the requirements of paragraph (c)(3) or (c)(4) of 
this section, unless retention of groundfish CDQ species is not 
authorized under Sec.  679.4, discard of the groundfish CDQ species is 
required under subpart B of this part, or, in waters within the State 
of Alaska, discard is required by the State of Alaska.
* * * * *
[FR Doc. 03-30921 Filed 12-15-03; 8:45 am]
BILLING CODE 3510-22-S