[Federal Register Volume 71, Number 129 (Thursday, July 6, 2006)]
[Rules and Regulations]
[Pages 38298-38301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10554]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 060404093-6177-02; 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: Final rule.

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SUMMARY: NMFS issues a final rule implementing changes to the 
regulations for 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

[[Page 38299]]

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 action is intended 
to promote the goals and objectives of the Fishery Management Plan for 
Bering Sea/Aleutian Islands King and Tanner Crabs (FMP), the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
and other applicable law.

DATES: Effective on August 7, 2006.

ADDRESSES: Copies of the regulatory impact review/initial regulatory 
flexibility analysis (RIR/IRFA) and Final Regulatory Flexibility 
Analysis (FRFA) prepared for this action, and copies of the Bering Sea 
and Aleutian Islands Crab Fisheries Final Environmental Impact 
Statement (EIS) prepared for the Crab Rationalization Program may be 
obtained from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, 
Attn: Ellen Walsh, Records Officer, and from the NMFS Alaska Region 
website 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. NMFS published a 
final rule to implement Amendments 18 and 19 on March 2, 2005 (70 FR 
10174).
    NMFS published the proposed rule for the sideboard restriction 
regulatory change in the Federal Register on April 24, 2006 (71 FR 
20966), with a public comment period through May 9, 2006. NMFS received 
no public comments on the proposed rule.
    This final rule corrects two aspects of the sideboard provisions in 
the regulations implementing the Program. One change removes the 
sideboard limits from vessels that did not generate Bering Sea snow 
crab quota share under the Program. The second change clarifies that 
the sideboard protections apply to federally permitted vessels that 
fish in the State parallel groundfish fisheries. These changes are 
necessary to implement the Program's sideboard provisions. A 
description of this action is provided in the preamble to the proposed 
rule and is briefly summarized here.
    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 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.

Need for Regulatory Changes

    This action makes two changes to the regulations governing 
sideboard provisions for the GOA groundfish fisheries at 50 CFR 680.22. 
The first change removes the sideboard restrictions from vessels whose 
histories did not generate Bering Sea snow crab quota share. The second 
change clarifies 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 
snow crab landings during the qualifying period. This change has the 
unintended consequence of applying the sideboards to vessels that did 
not qualify for quota share. This final rule changes 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. This 
final rule changes the regulations to clarify that the GOA groundfish 
sideboard directed fishing closures apply to federally permitted 
vessels while fishing in the State parallel fisheries.
    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.

Changes from the Proposed Rule

    One non-substantive change was made from the proposed rule to the 
final rule. In Sec.  680.22(f), the phrase ``that are required to 
have'' was changed to ``with'' because the term ``required'' implied 
that a Federal Fisheries Permit or LLP license was required in State 
waters. The term ``with'' clarifies that Federal regulations apply to 
vessels operating under Federal permits.

Classification

    NMFS has determined that the final rule is consistent with the FMP, 
the

[[Page 38300]]

Magnuson-Stevens Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) as 
required by section 604(a) of the Regulatory Flexibility Act (RFA). The 
FRFA describes the economic impact this rule will 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).

Issues Raised by Public Comments on the IRFA

    NMFS received no public comments on the IRFA.

Need for and Objectives of this Action

    This action is necessary to correct two aspects of the sideboard 
provisions in the regulations implementing the Program that were 
inadvertently misstated at 50 CFR 680.22.

Number and Description of Small Entities Directly Regulated by the Rule

    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.

Description of Significant Alternatives and a Description of Steps 
Taken to Minimize the Significant Economic Impacts on Small Entities

    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.
    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 regulations. These corrections will 
implement the sideboards as intended by the Council.
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 entities 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 regulatory 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 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 substantial 
economic benefits, as discussed in the EIS 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, and therefore, 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 than 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 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.

Small Entity Compliance Guide

    NMFS has posted a small entity compliance guide on the Internet at 
http://www.fakr.noaa.gov/sustainablefisheries/crab/rat/progfaq.htm to 
satisfy the Small Business Regulatory Enforcement Fairness Act of 1996, 
which requires a plain language guide to assist small entities in 
complying with this rule. Contact NMFS to request a hard copy of the 
guide (see ADDRESSES).

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.


[[Page 38301]]


    Dated: June 29, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 680 as 
follows:

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

0
1. The authority citation for part 680 continues to read as follows:

    Authority: 16 U.S.C. 1862.

0
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, with a Federal Fisheries Permit 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. E6-10554 Filed 7-5-06; 8:45 am]
BILLING CODE 3510-22-S