[Federal Register Volume 70, Number 143 (Wednesday, July 27, 2005)]
[Rules and Regulations]
[Pages 43328-43331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14852]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 050421110-5192-02; I.D. 041505F]
RIN 0648-AT03


Pacific Halibut Fisheries; Fisheries of the Exclusive Economic 
Zone Off Alaska; Individual Fishing Quota Program; Community 
Development Quota Program

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 amend the Pacific halibut 
regulations for waters in and off Alaska. This action is necessary to 
modify the Individual Fishing Quota (IFQ) Program and the Western 
Alaska Community Development Quota (CDQ) Program to allow quota share 
holders in International Pacific Halibut Commission (IPHC) Regulatory 
Area (Area) 4C to fish their Area 4C IFQ or CDQ in Area 4D. This action 
is intended to enhance harvesting opportunities for halibut by IFQ and 
CDQ fishermen and is necessary to promote the objectives of the 
Northern Pacific Halibut Act of 1982 (Halibut Act) with respect to the 
IFQ and CDQ Pacific halibut fisheries, consistent with the regulations 
and resource management objectives of the IPHC and the North Pacific 
Fishery Management Council (Council).

DATES: Effective on July 22, 2005.

ADDRESSES: Copies of the environmental assessment (EA), regulatory 
impact review (RIR), initial regulatory flexibility analysis (IRFA), 
and Final Regulatory Flexibility Analysis (FRFA) prepared for this 
action are available from NMFS, Alaska Region, P.O. Box 21668, Juneau, 
AK 99802-1668, Attn: Lori Gravel-Durall, or from NMFS, Alaska Region, 
709 West 9\th\ Street, Room 453, Juneau, AK 99801, or by calling the 
Sustainable Fisheries Division, Alaska Region, NMFS, at 907-586-7228.

[[Page 43329]]


FOR FURTHER INFORMATION CONTACT: Bubba Cook, 907-586-7425 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Pacific Halibut Management

    Management of the Pacific halibut (Hippoglossus stenolepis) 
(halibut) fishery in and off Alaska is based on an international 
agreement between Canada and the United States. This agreement, titled 
the ``Convention Between the United States of America and Canada for 
the Preservation of the Halibut Fishery of the Northern Pacific Ocean 
and Bering Sea'' (Convention), was signed at Ottawa, Canada on March 2, 
1953, and was amended by the ``Protocol Amending the Convention,'' 
signed at Washington, D.C., March 29, 1979. The Convention is 
implemented in the United States by the Halibut Act.
    Generally, the IPHC develops halibut fishery management regulations 
pursuant to the Convention and submits those regulations to the U.S. 
Secretary of State for approval. NMFS publishes approved IPHC 
regulations in the Federal Register as annual management measures. NMFS 
published the IPHC's current annual management measures on February 25, 
2005 (70 FR 9242).
    The Halibut Act also authorizes the Council to recommend halibut 
fishery regulations in and off Alaska that are in addition to, but not 
in conflict with, the approved IPHC regulations (Halibut Act, section 
773(c)). Regulations recommended by the Council will be implemented 
only upon approval of the U.S. Secretary of Commerce (Secretary).

The IFQ and CDQ Fisheries

    In December 1991, the Council adopted a limited access system for 
managing the halibut fishery in and off Alaska under authority of the 
Halibut Act. This limited access system included an IFQ Program for 
Areas 2C through 4D, and the CDQ Program for Areas 4B through 4E. The 
Council designed the IFQ and CDQ Programs to allocate specific 
harvesting privileges among U.S. fishermen and eligible western Alaska 
communities to resolve management and conservation problems associated 
with ``open access'' fishery management, and to promote the development 
of fishery-based economic opportunities in western Alaska. Acting on 
behalf of the Secretary, NMFS initially implemented the IFQ and CDQ 
Programs through regulations published in the Federal Register on 
November 9, 1993 (58 FR 59375). Fishing for halibut under these two 
programs began on March 15, 1995.
    Each quota share (QS) issued under the IFQ Program represents a 
transferable harvest privilege, within specified limitations, which is 
converted annually into IFQ. Fishermen granted IFQs are authorized to 
harvest the amounts of halibut in the areas specified on an IFQ permit 
issued to the fishermen.
    NMFS and the State of Alaska jointly manage the CDQ Program based 
on a program design developed by the Council. Currently, 65 communities 
are eligible to participate in the CDQ Program, representing about 
27,000 western Alaska residents. These communities are located within 
50 nautical miles of the Bering Sea coast or on an island in the Bering 
Sea and are predominantly populated by Alaska Natives. The eligible 
communities formed six non-profit corporations known as CDQ groups to 
manage and administer allocations, investments, and economic 
development projects. Allocations are administered by the State of 
Alaska in cooperation with NMFS according to the total catch 
established for each Area by the IPHC.

The Effect of this Action

    This final rule amends the Area 4 Catch Sharing Plan (CSP) and 
existing regulations to allow Area 4C IFQ or CDQ holders to harvest all 
or part of their halibut IFQ or CDQ allocation in Area 4D. The current 
Area 4 CSP was developed by the Council to apportion the IPHC's halibut 
catch limit for a combined Area 4C-E as necessary to carry out the 
socioeconomic objectives of the IFQ and CDQ programs. The Area 4 CSP 
provides a framework for dividing the IPHC's annual halibut catch limit 
for a combined Area 4C-E among Areas 4C, 4D, and 4E. This action 
revises the Area 4 CSP and its implementing regulations to allow IFQ 
and CDQ holders that receive Area 4C halibut allocations the 
flexibility to harvest such halibut IFQ or CDQ either in Area 4C or in 
Area 4D.
    The principal elements of this amendment are described and 
explained in detail in the preamble to the proposed rule (May 5, 2005; 
70 FR 23829) and are not repeated here. This final rule is 
substantively the same as the proposed rule and . NMFS made no changes 
to the regulatory text provided in the proposed rule. Comments on the 
proposed rule were invited through June 6, 2005.

Response to Comments

    NMFS received four letters of comment that contained four separate 
comments from three organizations and one individual. The following 
summarizes and responds to these comments.
    Comment 1: The proposed rule appears to only allow Area 4C IFQ, but 
not Area 4C CDQ to be fished in Area 4D. This is inconsistent with the 
Council's motion.
    Response: In December 2004, the Council recommended allowing Area 
4C IFQ and CDQ holders to harvest their IFQ or CDQ in Area 4D. This 
recommendation was proposed by NMFS through amendments to the Area 4 
CSP and its implementing regulations at 50 CFR part 679. The amendments 
to the Area 4 CSP provide the primary framework authority for the 
allowance for Area 4C CDQ holders to harvest their CDQ in Area 4D. The 
regulations found at Sec.  679.42 impose additional limitations on the 
allowance for Area 4C IFQ holders to harvest their IFQ in Area 4D. 
Regulations at Sec.  679.7 provide restrictions upon Area 4C IFQ and 
CDQ to ensure that an IFQ or CDQ holder's total quota allotment for 
both areas is not exceeded. Therefore, the proposed rule specifically 
contemplated allowing CDQ holders as well as IFQ holders to fish Area 
4C quota in Area 4D consistent with Council intent.
    Comment 2: The proposed rule unfairly allows Area 4C IFQ or CDQ 
holders to harvest their IFQ or CDQ in Area 4D without allowing Area 4D 
IFQ or CDQ holders to harvest their IFQ or CDQ in Area 4C.
    Response: Halibut IFQ and CDQ fishermen in Area 4C have experienced 
a steady drop in catch rates since 1985. The drop is consistent among 
gear types and amounts to a decline in catch rates of greater than 70 
percent over the past ten years. The reduced catch rates have 
consequently reduced the percentage of the total harvest of halibut by 
IFQ and CDQ fishermen in Area 4C.
    Recent research conducted by the IPHC indicates localized depletion 
in Area 4C. Localized depletion results from concentrated fishing 
effort in a limited area that exceeds the sustainable level for fishing 
in that area. Although effort and catches of halibut have increased in 
Area 4C over the last 10 years as the catch limit has increased, catch 
per unit effort (CPUE) has declined steadily since commercial fishing 
began. Catches increased because fishing effort increased, offsetting 
the decline in CPUE. IPHC research shows that a comparison of CPUE with 
effort indicates a continuous pattern of increasing effort and 
decreasing CPUE. The IPHC suggests that further increased effort in 
Area 4C is unlikely to produce increased catch.
    The preferred action selected by the Council authorizes fishermen 
to harvest their Area 4C IFQ or CDQ in Area 4D, which is a much larger 
regulatory area

[[Page 43330]]

with sufficient halibut biomass to accommodate the additional harvest. 
The CSP assigns 46.43 percent of the combined 4C-E catch to Area 4D, 
which is an amount equal to that allocated to Area 4C. However, for the 
same percentage, Area 4D has approximately ten times more fishing 
grounds, at 5,605 square nautical miles, than Area 4C, at 561 square 
nautical miles.
    Additionally, CPUE in Area 4D consistently appears remarkably 
better than in Area 4C as indicated by the number of halibut landings 
compared to total harvest percentage of the IFQ and CDQ allocations by 
area. Fishermen in Area 4D harvested an average of 92 percent of the 
IFQ allocation for Area 4D over the past ten years, achieving 100 
percent during 2003 and 2004. Fishermen also harvested an average of 89 
percent of the Area 4D CDQ allocation over the past ten years, 
achieving 80 and 84 percent during 2003 and 2004, respectively. On 
average, Area 4D IFQ fishermen conducted only 32 percent of the IFQ 
landings that Area 4C IFQ fishermen conducted over the past ten years, 
inferring that less effort was required to achieve the full harvest of 
the 4D IFQ halibut allocation. Likewise, CDQ landings of halibut from 
Area 4D were only 19 percent of those from Area 4C over the past ten 
years, inferring that less effort was required to achieve the full 
harvest of the 4D CDQ harvest. Less effort was required to harvest IFQ 
and CDQ halibut allocation in Area 4D, indicating a higher CPUE in Area 
4D than in Area 4C. Therefore, allowing Area 4D IFQ or CDQ holders to 
harvest their Area 4D IFQ or CDQ in Area 4C, where the CPUE is lower 
and localized depletion could be further exacerbated, would be 
counterproductive.
    The Council briefly discussed an alternative that would have 
allowed Area 4D fishermen to harvest their IFQ and CDQ in Area 4C, in 
effect erasing the boundary line between Area 4C and Area 4D. However, 
the Council determined that the option would not achieve the goals of 
reducing fishing effort in Area 4C and protecting the small vessels 
that fish in nearshore waters of Area 4C from potential increased gear 
conflict and grounds preemption by Area 4D fishermen. For those reasons 
the Council did not pursue further analysis of that alternative or 
further consider allowing Area 4D IFQ or CDQ to be harvested in Area 
4C.
    Comment 3: If Area 4C IFQ and CDQ holders had not depleted their 
local stocks, they would not have a problem. Area 4C fishermen should 
change their methods for fishing within Area 4C rather than be allowed 
to deplete the adjacent fishery in Area 4D.
    Response: The IPHC assesses the halibut resource in Areas 4C-E as a 
single stock unit. However, since 1998 the IPHC has annually 
implemented the measures specified in the Area 4 CSP to apportion the 
combined Area 4C-E catch limit independently among Areas 4C, 4D, and 
4E. The combined catch limit is allocated as 46.43 percent to Area 4C, 
46.43 percent to Area 4D, and 7.14 percent to Area 4E. NMFS bases the 
calculation of IFQ pounds on the combined catch limit established by 
the IPHC for each area. Total IFQ pounds for Area 4C-E are calculated 
by multiplying the catch limit established by the IPHC for the combined 
Area 4C-E by the respective percent allocation for Area 4C, 4D, and 4E. 
This action results in no change to the total catch limit for Areas 4C-
E, the percent allocations of the total catch limit for each Area 
within Areas 4C-E, and subsequently the total IFQ allocation. Because 
the halibut resource is considered a single stock in Areas 4C-E and no 
change to the associated calculations for the Area 4C-E total catch 
results from this action, allowing Area 4C IFQ and CDQ holders to 
harvest their IFQ or CDQ in Area 4D subject to their existing quotas 
will not result in a net increase in halibut harvest in Area 4C-E.
    In addition, allowing Area 4C IFQ and CDQ holders to harvest their 
IFQ or CDQ in Area 4D will not likely result in any localized depletion 
of Area 4D stocks because the geographical area of the Area 4D fishing 
grounds is much larger than in Area 4C. The IPHC notes that 46.43 
percent of the entire Area 4C-E catch limit is allotted for only 5.1 
percent of the total Area 4C-E fishing grounds located in Area 4C. The 
available fishing grounds in Area 4C consists of only 561 square 
nautical miles. The limited fishing grounds in Area 4C results in 
concentrated fishing effort in a relatively small fishing area. 
Conversely, the CSP assigns 46.43 percent of the combined 4C-E catch to 
Area 4D, which is an amount equal to that allocated to Area 4C. 
However, for the same catch percentage, Area 4D has approximately ten 
times more fishing grounds at 5,605 square nautical miles than Area 4C 
at 561 square nautical miles. Additionally, harvest records over the 
past ten years indicate that far less effort was required to achieve 
the full harvest of the 4D IFQ and CDQ harvest, thereby indicating a 
higher CPUE in Area 4D (see Response to Comment 2). Consequently, 
allowing Area 4C IFQ and CDQ holders to harvest their IFQ or CDQ in 
Area 4D will not likely transpose Area 4C's localized depletion problem 
to Area 4D because much larger fishing grounds and a higher CPUE exist 
in Area 4D.
    Comment 4: We support NMFS and the Council in allowing Area 4C IFQ 
and CDQ holders to harvest their IFQ or CDQ in Area 4D and ask for 
speedy implementation of this action.
    Response: NMFS notes this support.

Classification

    This rule relieves a restriction by removing the prohibition 
preventing Area 4C IFQ and CDQ fishermen from fishing their quota in 
Area 4D and so, pursuant to 5 U.S.C. 553(d)(1), it is not subject to 
the 30-day delayed effectiveness provision of the APA. Current 
regulations prohibit harvesting halibut IFQ or CDQ in a regulatory area 
other than the area for which the quota is allocated. Halibut IFQ and 
CDQ allocated in a particular area may be harvested only in that same 
area, in accordance with biomass-based quotas, except that halibut CDQ 
allocated for Area 4D may be harvested in Area 4E. This rule would 
reduce fishing effort in Area 4C while continuing to allow Area 4C 
fishermen to fully harvest their IFQ or CDQ by eliminating the current 
restrictions prohibiting the harvest of halibut IFQ or CDQ in a 
regulatory area for which the quota is allocated and, therefore, 
redistributing fishing effort from Area 4C to Area 4D. Additionally, 
the need to implement these measures in a timely manner to allow for 
economic relief and promote safety in the Pribilof Islands 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 Council requested this 
action to alleviate economic hardship in the Pribilof Islands resulting 
from poor halibut harvests in Area 4C in recent years. Due to ice cover 
and weather conditions in the Bering Sea, halibut IFQ and CDQ fishermen 
have a very narrow window in which to safely fish during the summer 
months. Therefore, this action must be implemented immediately upon 
filing with the Office of the Federal Register to provide IFQ and CDQ 
fishermen a reasonable opportunity to take advantage of favorable 
weather conditions in a limited fishing season.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    The Council recommended this action to the Secretary for adoption 
pursuant to its authority under the Halibut Act. An RIR/IRFA for the 
proposed revisions to the Area 4 CSP and regulatory amendment describes 
the management

[[Page 43331]]

background, the purpose and need for action, the management 
alternatives, and the socioeconomic impacts of the alternatives (see 
ADDRESSES).
    NMFS prepared an FRFA for this action that examines regulations 
regarding the legal harvest of halibut IFQ and CDQ in Convention waters 
in and off Alaska. The FRFA incorporates the IRFA and a summary of the 
analysis completed to support this action. This analysis evaluates the 
small entity impacts of an amendment to the Area 4 CSP and its 
implementing regulations affecting IFQ and CDQ fishing which has the 
potential to result in a significant impact on a substantial number of 
small entities, as defined under the Regulatory Flexibility Act. The 
FRFA addresses the requirements of the Regulatory Flexibility Act at 
section 604(a).
    The entities regulated by this action are those entities that 
harvest halibut in Areas 4C and 4D. These entities include the six CDQ 
groups, and the halibut longline catcher vessels and catcher/processor 
vessels in these areas whose owners or hired captains hold halibut QS/
IFQ or are contracted by CDQ groups that hold QS/CDQ. This action may 
directly affect all six CDQ groups, which represent 65 western Alaska 
communities with a total 2000 population of about 27,000, which receive 
halibut CDQ in halibut Areas 4C. This action may also directly affect 
63 persons who hold more than 4 million QS units in Area 4C in 2004.
    The purpose and need for this action is to: (1) reduce fishing 
effort within Area 4C, thereby alleviating localized depletion; (2) 
increase human health and safety of the small boat halibut IFQ and CDQ 
fishery near St. Paul and St. George by reducing competition with 
larger vessels that may harvest their IFQ in either Area 4C or 4D; and 
(3) assist Area 4C IFQ holders in harvesting their full IFQ and CDQ 
allocations by increasing the area of available fishing grounds.
    The IRFA prepared for the preferred alternative was described in 
the classification section of the preamble to the proposed rule. The 
public comment period ended June 6, 2005. No comments were received on 
the IRFA.
    This regulation does not impose new recordkeeping or reporting 
requirements on the regulated small entities.
    The Council analyzed two alternatives for this action. These 
alternatives included a no action alternative and the selected 
preferred alternative. Under Alternative 1, the no action alternative, 
the status quo would be maintained and Area 4C IFQ and CDQ holders 
would not be able to harvest their quota outside Area 4C. Alternative 2 
, the preferred alternative, would allow Area 4C IFQ or CDQ holders to 
harvest all or part of such IFQ or CDQ in Area 4D. The Council 
determined that Alternative 1 failed to meet the purpose and need of 
this action stated above. The preferred alternative will achieve the 
Council's desired goals and the purpose and need of this action by 
revising the Area 4 CSP and IFQ and CDQ regulations to allow Area 4C 
IFQ or CDQ holders to harvest all or part of their Area 4C IFQ or CDQ 
in Area 4D.
    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. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Alaska Regional Office (see 
ADDRESSES), and the guide (i.e., permit holder letter) will be sent to 
all holders of permits for the Pacific Halibut IFQ and CDQ fisheries in 
Area 4. The guide and this final rule are available upon request and on 
the Alaska Region website at http://www.fakr.noaa.gov/.

List of Subjects in 50 CFR Part 679

    Alaska, Determinations and appeals, Fisheries, Recordkeeping and 
reporting requirements.

    Dated: July 21, 2005.
James W. Balsiger
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
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

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

    Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 
note; 3631 et seq.

0
2. In Sec.  679.7, paragraph (f)(4) is revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (f) * * *
    (4) Except as provided in Sec.  679.40(d), retain IFQ or CDQ 
halibut or IFQ or CDQ sablefish on a vessel in excess of the total 
amount of unharvested IFQ or CDQ, applicable to the vessel category and 
IFQ or CDQ regulatory area(s) in which the vessel is deploying fixed 
gear, and that is currently held by all IFQ or CDQ card holders aboard 
the vessel, unless the vessel has an observer aboard under subpart E of 
this part and maintains the applicable daily fishing log prescribed in 
the annual management measures published in the Federal Register 
pursuant to Sec.  300.62 of this title and Sec.  679.5.
* * * * *

0
3. In Sec.  679.42, paragraph (a)(1) is revised to read as follows:


Sec.  679.42  Limitations on use of QS and IFQ.

    (a) * * *
    (1) The QS or IFQ specified for one IFQ regulatory area must not be 
used in a different IFQ regulatory area, except:
    (i) Notwithstanding Sec.  679.4(d)(1), Sec.  679.7(f)(4) and 
(f)(11), Sec.  679.40(b)(1), (c)(3), and (e), from July 22, 2005 to 
November 15, 2005, all or part of the QS and IFQ specified for 
regulatory area 4C may be harvested in either Area 4C or Area 4D.
    (ii) For the year 2006 and subsequent annual IFQ fishing seasons, 
all or part of the QS and IFQ specified for regulatory area 4C may be 
harvested in either Area 4C or Area 4D.
* * * * *
[FR Doc. 05-14852 Filed 7-22-05; 3:27 pm]
BILLING CODE 3510-22-S