[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)]
[Proposed Rules]
[Pages 20966-20968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6030]



[[Page 20966]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No.: 060404093-6093-01; I.D. 033106A]
RIN 0648-AU24


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources

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

ACTION: Proposed rule; request for comments.

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SUMMARY:  NMFS proposes changes to the regulations implementing the 
Crab Rationalization Program. This action is necessary to correct two 
discrepancies in the scope of the sideboard protections for Gulf of 
Alaska (GOA) groundfish fisheries provided in a previous rulemaking. 
Specifically, this action would remove the sideboard restrictions from 
vessels that did not generate Bering Sea snow crab (Chionoecetes 
opilio) quota share and would apply the sideboards to federally 
permitted vessels operating in the State of Alaska (State) parallel 
fisheries. This proposed rule is intended to promote the goals and 
objectives of the Fishery Management Plan for Bering Sea/Aleutian 
Islands (BSAI) King and Tanner Crabs (FMP), the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), and 
other applicable law.

DATES:  Written comments must be received no later than May 9, 2006.

ADDRESSES:  Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Records Administrator. Comments may be submitted by:
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Hand Delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
     Fax: 907-586-7557.
     E-mail: [email protected]. Include in the 
subject line of the e-mail the following document identifier: GOA 
sideboards. E-mail comments, with or without attachments, are limited 
to 5 megabytes.
     Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Copies of the regulatory impact review/initial regulatory 
flexibility analysis (RIR/IRFA), prepared for this action and copies of 
the Bering Sea Aleutian Islands Crab Fisheries Final Environmental 
Impact Statement/Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis/Social Impact Assessment (EIS/RIR/IRFA/SIA) 
prepared for the Crab Rationalization Program are available from NMFS 
at the mailing address specified above or from the NMFS Alaska Region 
Web site at http://www.fakr.noaa.gov.

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

SUPPLEMENTARY INFORMATION: In January 2004, the U.S. Congress amended 
section 313(j) of the Magnuson-Stevens Act through the Consolidated 
Appropriations Act of 2004 (Public Law 108-199, section 801). As 
amended, section 313(j)(1) requires the Secretary of Commerce to 
approve and implement by regulation the Crab Rationalization Program 
(Program), as it was approved by the North Pacific Fishery Management 
Council (Council). In June 2004, the Council consolidated its actions 
on the Program into Amendment 18 to the FMP. Additionally, in June 
2004, the Council developed Amendment 19 to the FMP, which represents 
minor changes necessary to implement the Program.
    A notice of availability for Amendments 18 and 19 was published in 
the Federal Register on September 1, 2004 (69 FR 53397). NMFS published 
a proposed rule to implement Amendments 18 and 19 on October 29, 2004 
(69 FR 63200). NMFS approved Amendments 18 and 19 on November 19, 2004. 
NMFS published a final rule to implement Amendments 18 and 19 on March 
2, 2005 (70 FR 10174) and a final rule (70 FR 13097; March 18, 2005) to 
correct OMB control numbers provided in the final rule dated March 2, 
2005 (70 FR 10174). NMFS also published two final rules (70 FR 33390; 
June 8, 2005, and 70 FR 75419; December 20, 2005) to correct certain 
provisions in the final rule dated March 2, 2005 (70 FR 10174).
    NMFS intends to correct two aspects of the sideboard provisions in 
the regulations implementing the Program. One change would remove the 
sideboard limits from vessels that did not generate Bering Sea snow 
crab quota share under the Program. The second change would clarify 
that the sideboards apply to federally permitted vessels that fish in 
the State parallel groundfish fisheries. These changes are necessary to 
implement the Program's sideboard provisions.
    State parallel fisheries occur in State waters but are opened at 
the same time as Federal fisheries in Federal waters. State parallel 
fishery harvests are considered part of the Federal total allowable 
catch (TAC) and federally-permitted vessels move between State and 
Federal waters during the concurrent parallel and Federal fisheries. 
The State opens the parallel fisheries through emergency order by 
adopting the groundfish seasons, bycatch limits, and allowable gear 
types that apply in the adjacent Federal fisheries.

Sideboard Provisions

    Sideboard limits restrict the ability of vessels whose histories 
resulted in Bering Sea snow crab quota share, or fishing under License 
Limitation Program (LLP) licenses derived from those vessels, to 
participate in GOA groundfish fisheries. The purpose of the sideboard 
limits is to prevent vessels that traditionally participated in the 
Bering Sea snow crab fishery from using the flexibility of the Program 
to increase their participation in the GOA groundfish fisheries, and 
primarily the GOA Pacific cod fishery. Historically, the Bering Sea 
snow crab fishery and GOA groundfish fisheries operated concurrently 
from January through March, meaning that a crab vessel owner had to 
decide whether to fish for Bering Sea snow crab or GOA groundfish but 
could not participate fully in both fisheries. With crab 
rationalization, vessel owners have the flexibility to fish for snow 
crab during a greatly extended season, or to lease their crab 
individual fishing quota (IFQ) and not fish at all. This increased 
flexibility for crab fishermen could lead to increases in fishing 
effort in GOA groundfish fisheries, especially the Pacific cod fishery, 
and could negatively affect the other participants in those fisheries.
    This concern about spillover effects is limited primarily to the 
GOA where the Pacific cod TAC is not allocated among gear types. In the 
BSAI, most of the Pacific cod TAC is allocated to vessels using 
longline and trawl gear, and LLP license restrictions prevent the entry 
of new pot vessels into the BSAI Pacific cod fishery. Hence, snow crab 
fishermen who wish to increase their groundfish fishing activity would 
do so primarily in the GOA Pacific cod fishery.
    The GOA groundfish sideboard restrictions are intended to apply to 
any crab vessel that: (1) Is not authorized

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under the American Fisheries Act, (2) has a fishing history that 
generated any amount of Bering Sea snow crab quota share, (3) has an 
LLP license earned in whole or in part by the crab fishing history of 
such vessels, or (4) is fishing under an LLP license derived in whole 
or in part from a vessel in (1) through (4). Those snow crab vessels 
subject to GOA groundfish sideboard restrictions are limited, in the 
aggregate, from harvesting an amount of each GOA groundfish species 
that exceeds the percentage of each species that such vessels retained, 
in the aggregate, from 1996 to 2000, relative to the total retained 
catch of each species by all groundfish vessels during the same period. 
The sideboard restrictions also are apportioned by season and/or area 
for each GOA groundfish TAC that is apportioned by season or area.
    Some additional sideboard restrictions and exemptions for GOA 
Pacific cod do not apply to other GOA groundfish species. Any vessel 
subject to GOA groundfish sideboards that landed less than 50 mt 
(110,231 lb) of GOA groundfish between 1996 and 2000, is prohibited 
from engaging in directed fishing for GOA Pacific cod at all times. 
Additionally, any vessel that landed less than 100,000 pounds (45.4 mt) 
of Bering Sea snow crab and more than 500 mt (1,102,311 lb) of GOA 
Pacific cod between 1996 and 2000 is exempt from the GOA Pacific cod 
sideboard restrictions. These sideboard restrictions also apply to any 
vessel fishing under an LLP license earned by the crab fishing history 
of such vessel.
    NMFS notified all persons who own a vessel or hold a LLP license 
subject to the sideboard restrictions by issuing amended Federal 
fisheries permits and LLP licenses to each affected vessel owner or LLP 
license holder. The amended Federal fisheries permits and LLP licenses 
display the type of sideboard restriction on the face of the permit or 
license.

Need for Regulatory Changes

    This action proposes two changes to the regulations governing 
sideboard protections for the GOA groundfish fisheries at 50 CFR part 
680.22. The first change would remove the sideboard restrictions from 
vessels whose histories did not generate Bering Sea snow crab quota 
share. The second change would clarify that the sideboard restrictions 
apply to federally permitted vessels that fish in the State parallel 
groundfish fisheries.
    The Council intended the sideboards to apply to vessels that 
qualify for Bering Sea snow crab quota share under the Program. The 
proposed rule for the Program included regulatory language to this 
effect (69 FR 63200, October 29, 2004). However, this language was 
changed in the final rule to apply the sideboards to vessels that had 
landings during the qualifying period. This change has the unintended 
consequence of applying the sideboards to vessels that did not qualify 
for quota share. NMFS proposes to change the regulatory language to 
reflect the original language in the Program's proposed rule. NMFS 
received no public comments on this aspect of the Program's proposed 
rule.
    The existing regulations restrict participation in Federal 
fisheries but not in the adjacent State waters fisheries. This omission 
in the regulations would allow vessels whose history generated quota 
share to increase their participation in the groundfish fisheries. NMFS 
proposes to change the regulations to clarify that the GOA groundfish 
sideboard directed fishing closures apply to federally permitted 
vessels while fishing in the State parallel fisheries.
    The Council developed the sideboard limits to prevent vessels that 
traditionally participated in the Bering Sea snow crab fishery from 
using the flexibility of the Program to increase their participation in 
the GOA groundfish fisheries, primarily the GOA Pacific cod fishery. 
Amendment 18 does not specifically apply the sideboard limits to 
vessels operating in the State parallel fisheries. Amendment 18 
required cooperatives to limit their members' aggregate Pacific cod 
catch in both Federal and State waters to the sideboard amount. In a 
letter dated June 2, 2004, NMFS requested that the Council remove the 
requirement that cooperatives manage the sideboard fishing activity of 
their members because NMFS determined this provision was not practical 
or enforceable. In the same letter, NMFS informed the Council that it 
would manage the groundfish sideboards through fleet-wide directed 
fishing closures for Federal waters and the parallel fishery in State 
waters. The Council removed the cooperative management requirement 
paragraph in Amendment 19. However, deleting this paragraph had the 
effect of removing from the FMP the sideboard limits for vessels 
fishing in State waters.
    NMFS finds it necessary to apply the sideboard limits to federally 
permitted vessels fishing in State parallel fisheries in order to 
implement the FMP. Without this regulatory change, vessels that 
traditionally participated in the Bering Sea snow crab fishery could 
use the flexibility of the Program to increase their participation in 
the GOA groundfish fisheries, and primarily the GOA Pacific cod 
fishery, because they could circumvent the directed fishing closures by 
fishing in State waters. NMFS has notified the public that it will 
implement the sideboard limits in the State parallel fisheries in the 
preamble to the proposed and final rules for the Program and in the 
notice of availability for Amendments 18 and 19.

Classification

    NMFS has determined that the proposed rule is consistent with the 
FMP and preliminarily determined that the rule is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an initial regulatory flexibility analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for it are included at the 
beginning of this section in the preamble and in the SUMMARY section of 
the preamble. A summary of the analysis follows. A copy of this 
analysis is available from NMFS (see ADDRESSES).

Number and Description of Small Entities Directly Regulated by the 
Proposed Action

    One hundred and ninety-five entities are subject to the sideboard 
regulations and fish in the GOA groundfish fisheries. A fishing 
operation is considered to be a small entity for RFA purposes if its 
total annual gross receipts, from all sources, is less than $4 million. 
The 2004 gross revenue data from the State fishticket database is 
readily available and includes revenue from all fishing operations in 
Alaska and adjacent EEZ waters. Based on these data, as many as 189 of 
the 195 entities may be considered small.

Impacts on Directly Regulated Small Entities

    The Council created the sideboards with the expressed purpose of 
restricting the owners of vessels acquiring snow crab quota share from 
using the resulting increased operational flexibility to expand their 
participation in the already fully subscribed GOA groundfish fisheries. 
The proposed regulatory changes are necessary owing to the introduction 
of two inconsistencies that exist between the Program provisions and 
the language in the implementing

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regulations. These corrections will implement the sideboards as 
intended by the Council and mandated by section 313(j) of the Magnuson-
Stevens Act.
    Sideboards on vessels without quota share. Six small entities, as 
defined for RFA purposes, would be directly regulated by the removal of 
the sideboard provisions from vessels that did not generate snow crab 
quota shares. These six are currently, although inadvertently, subject 
to the economic burden of the sideboard restrictions, despite not 
having qualified for snow crab quota shares. The proposed action would 
lift this uncompensated burden from these six small entities by 
removing their sideboard restrictions.
    Sideboards in the State parallel groundfish fisheries. As 
promulgated, the current language may allow federally permitted vessels 
to circumvent the Program's sideboards by fishing only in the State 
parallel groundfish fisheries in the GOA. Since the start of the 2006 A 
season Pacific cod fishery (the first GOA groundfish opening following 
implementation of the current Program provisions), no vessels 
prohibited by these sideboard provisions from fishing for Pacific cod 
have fished in the State parallel fisheries. The fact that no vessels 
currently are exploiting this loophole in the regulations is testament 
to the clear intent that the sideboards apply to the State parallel 
fisheries, and the plain language understanding of the term ``GOA.'' 
This action proposes to correct the sideboard provisions of the 
Program's implementing regulations, by applying them to federally 
permitted vessels fishing in State parallel groundfish fisheries. 
Therefore, the preferred action has no economic effects beyond those 
considered in the EIS/RIR/IRFA/SIA prepared for the Program (see 
ADDRESSES).
    Sideboard restrictions prevent adverse spillover effects in other 
fisheries from an influx of effort from the rationalized crab 
fisheries. The Crab Rationalization Program, because it issued quota 
share to vessel owners and provided them the ability to form 
cooperatives, provides these directly regulated entities huge economic 
benefits, as discussed in the EIS/RIR/IRFA/SIA prepared for the Program 
(see ADDRESSES). As discussed in that analysis, the sideboard limits 
prevent these participants from using these benefits to increase their 
effort in the GOA groundfish fisheries. The sideboard restrictions 
provide the sideboarded vessels the ability to maintain their historic 
harvest levels in GOA groundfish fisheries therefore they do not make 
the sideboarded vessels worse-off economically. Vessels with minimal 
harvests in the snow crab fisheries and substantial harvests in the 
Pacific cod fishery would be exempt from the sideboard restrictions, 
since these vessels have little dependence on the crab fisheries. In 
addition, vessels with less that a minimum historic harvest from GOA 
groundfish fisheries are not permitted to participate in GOA groundfish 
fisheries.
    The proposed action does not likely have the potential to impose 
disproportionate impacts on small entities, relative to large entities. 
The regulatory change applying the sideboard constraints to State 
waters during the parallel fisheries would provide all qualifying 
vessels, large and small, a level playing field upon which to operate, 
as had been the intention of the Council from the outset. Because this 
change merely rescinds an unintentional and unexploited regulatory 
loophole, the only possible effect is to codify the commonly held 
understanding among the fishing industry of the sideboard rule.
    This proposed rule does not have the potential to significantly 
reduce profits for small entities. The absence of cost data precludes 
quantitative estimation of potential impacts on profitability, although 
these would be expected to be minimal, because no vessels chose to 
exploit this loophole in the 2006 A season (the first groundfish 
fishery after sideboard implementation).
    This regulation does not impose new recordkeeping and reporting 
requirements on any directly regulated small entities.
    This analysis did not reveal any Federal rules that duplicate, 
overlap or conflict with the proposed action.
    No significant alternatives to the proposed rule exist that 
accomplish the stated objectives, are consistent with applicable 
statutes, and would minimize the economic impact of the proposed rule 
on small entities. A no action alternative was considered, but was 
rejected because it did not meet the objectives of the Program's 
sideboard provisions. No significant adverse effects are shown for this 
action.

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 17, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 680 as follows:

PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF 
ALASKA

    1. The authority citation for part 680 continues to read as 
follows:

    Authority: 16 U.S.C. 1862.
    2. In Sec.  680.22, paragraph (a)(1)(i) is revised and paragraph 
(f) is added to read as follows:


Sec.  680.22  Sideboard protections for GOA groundfish fisheries.

* * * * *
    (a) * * *
    (1) * * *
    (i) Any non-AFA vessel that made a legal landing of Bering Sea snow 
crab (C. opilio) between January 1, 1996, and December 31, 2000, that 
generated any amount of Bering Sea snow crab (C. opilio) fishery QS; 
and
* * * * *
    (f) Sideboard protections in the State of Alaska parallel 
groundfish fisheries. Vessels subject to the sideboard restrictions 
under paragraph (a) of this section, that are required to have a 
Federal Fisheries Permit and/or LLP license, shall be subject to the 
regulations of this section while participating in any groundfish 
fishery in State waters adjacent to the GOA opened by the State of 
Alaska and for which the State of Alaska adopts a Federal fishing 
season.
[FR Doc. E6-6030 Filed 4-21-06; 8:45 am]
BILLING CODE 3510-22-S