[Federal Register Volume 72, Number 72 (Monday, April 16, 2007)]
[Proposed Rules]
[Pages 18943-18946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7193]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 060511126-7082-04; I.D. 050306E]
RIN 0648-AT71


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Gulf of Alaska 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 issues this proposed rule for the Central Gulf of Alaska 
(GOA) rockfish fisheries to revise monitoring and enforcement (M&E) 
provisions related to catcher/processor vessels harvesting under the 
opt-out fishery, and to make changes to regulations governing the 
rockfish fisheries. This action is necessary to clarify procedures and 
to correct discrepancies in a November 20, 2006, final rule. This 
proposed rule is intended to promote the goals and objectives of the 
Fishery Management Plan for groundfish of the Gulf of Alaska (FMP), the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), and other applicable law.

DATES: Comments must be received by April 30, 2007.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. Comments may be submitted by any of the 
following methods:
     Mail: to P.O. Box 21668, Juneau, AK 99802;
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK 99802;
     Fax: (907) 586-7557;
     E-mail: [email protected]. Include in the subject 
line of the email the following identifier: Rockfish Program correction 
0648-AT71. E-mail comments, with or without attachments, are limited to 
five megabytes; or
     Webform at the Federal e-Rulemaking Portal: http://www.regulations.gov.
    Copies of Amendment 68; the Environmental Assessment/Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) 
prepared for Amendment 68; and Final Regulatory Flexibility Analysis 
(FRFA) prepared for Amendment 68 may be obtained from the NMFS Alaska 
Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on 
the NMFS Alaska Region website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907 586 7228 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    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 802). As amended, the Magnuson-
Stevens Act authorizes the Secretary of Commerce to establish a limited 
access privilege program for the Central GOA rockfish fisheries 
(Program), developed in coordination with the North Pacific Fishery 
Management Council (Council). The Council recommended Amendment 68 to 
the FMP for groundfish in the GOA on June 6, 2005, to make the Program 
effective.
    NMFS published a notice of availability for Amendment 68 on May 15, 
2006 (71 FR 27984). On June 7, 2006, NMFS published a proposed rule to 
implement Amendment 68 and the Program (71 FR 33040). The Secretary 
approved Amendment 68 on August 11, 2006. NMFS published a final rule 
to implement Amendment 68 on November 20, 2006 (71 FR 67210).
    The Program provides exclusive harvesting and processing privileges 
for a specific set of rockfish species and associated species harvested 
incidentally to those rockfish in the Central GOA an area between 
147[deg] W. longitude and 159[deg] W. longitude. A detailed overview of 
the Program is

[[Page 18944]]

provided in the preamble to the proposed rule (71 FR 33040; June 7, 
2006) and is not repeated here. However, a component of the Program 
allows holders of License Limitation Program licenses that are assigned 
rockfish quota share (QS) for the catcher/processor sector to opt-out 
of many of the aspects of the Program (opt-out fishery). Participants 
in the opt-out fishery are subject to harvest limitations, called 
sideboards, during the month of July. Sideboard limits applicable to 
participants in the opt-out fishery include measures to limit catch of 
specific groundfish species to historic levels, and limits on the 
amount of Pacific halibut bycatch, specifically termed prohibited 
species catch (PSC). NMFS requires a suite of M&E provisions for 
participants in the opt-out fishery to ensure they do not exceed their 
sideboards.

Need for Corrections

    NMFS seeks to ensure that the November, 20, 2006, final rule (71 FR 
67210) conforms to the intent of the Program, and to provide 
clarification regarding the Program's regulatory requirements.

Regulatory Intent Clarification

    In the proposed rule to implement Amendment 68 (71 FR 33040; June 
7, 2006), NMFS detailed the M&E provisions that would apply to 
participants in the opt-out fishery. The proposed suite of M&E 
provisions applicable to the opt-out fishery included requirements that 
each haul must be weighed separately, all catch must be made available 
for sampling by a NMFS-certified observer (see proposed regulatory text 
at Sec.  679.84(c)(1); 71 FR 33096), and that the vessel has no more 
than one operational line or other conveyance for the mechanized 
movement of catch between the scale used to weigh total catch and the 
location where the observer collects species composition samples (see 
proposed regulatory text at Sec.  679.84(c)(4); 71 FR 33096). The 
proposed rule would have required that all catcher/processor vessels in 
the opt-out fishery be subject to these M&E requirements during July. 
The effect of the full suite of these M&E requirements on the regulated 
industry and the environment was analyzed in the draft EA/RIR/IRFA 
prepared for the proposed rule to implement the Program.
    In response to public comment received on the proposed rule, NMFS 
modified the M&E provisions that apply to the opt-out fishery. The 
modifications were detailed in the preamble to the final rule. 
Specifically, NMFS noted these changes in the summary of changes 
section to the preamble (71 FR 67213) and in its response to comment 90 
(71 FR 67229). NMFS also analyzed the effect of the revised M&E 
provisions for the opt-out fishery in the final EA/RIR and FRFA 
prepared for the Program final rule (see ADDRESSES). The preamble to 
the final rule clearly indicated that NMFS intended to maintain the 
requirement for hauls to be weighed separately, and intended to require 
only one operational line.
    The final regulatory text applicable to the opt-out fishery omitted 
some of the M&E requirements for catcher/processor vessels in the opt-
out fishery that were detailed in the preamble to the final rule. 
Specifically, the regulations at Sec.  679.84(d) failed to include the 
requirements to prevent mixing of hauls and maintain only one 
operational line before the point where the observer samples catch. 
These two requirements are essential for accurately attributing species 
composition to a specific haul and, in particular, to provide onboard 
observers the ability to properly attribute halibut PSC to a specific 
haul. Assigning halibut PSC to a specific haul is necessary to generate 
halibut PSC usage rates for specific fishery targets. Mixing of hauls 
and using more than one operational line undermines NMFS' ability to 
determine accurate halibut PSC usage for specific fisheries and creates 
the potential for improper halibut PSC accounting. Because the 
distribution of organisms by size and species often differs among 
hauls, an aggregation of hauls (i.e., mixing two or more hauls) could 
create errors in the calculation of total groundfish catch. For 
example, if a vessel were to mix hauls from two different areas or 
depths, species catch composition and size could be significantly 
different between these hauls, and a composite sample may not be 
representative of each individual haul. Any errors would be exacerbated 
as the composite sample is expanded to represent the total weight of 
the mixed hauls. Similarly, the use of more than one operational line 
could lead to improperly sampled catch because catch could be diverted 
or otherwise conveyed in a manner that would limit adequate sampling.
    Improper accounting of halibut PSC increases the risk that NMFS' 
catch accounting system may underestimate the amount of halibut PSC in 
the opt-out fishery, which undermines the conservation goals of this 
program. Because halibut PSC sideboards are likely to be small relative 
to harvest rates, timely and accurate accounting is essential to 
properly constrain fishing operations and ensure adequate conservation 
of the halibut resource.
    Additionally, halibut PSC sideboards are allocated to specific 
participants within the catcher/processor sector (i.e., halibut PSC 
sideboard limits are established for each catcher/processor rockfish 
cooperative, and a combined halibut PSC limit is established for the 
combined catcher/processor rockfish limited access and opt-out 
fisheries). Failure to properly account for halibut PSC in a timely 
fashion with the best available data could increase the possibility 
that the opt-out fishery exceeds its halibut PSC sideboard limit. This 
could adversely constrain other fishery participants with halibut PSC 
limits (e.g., participants in catcher/processor cooperatives).
    Finally, certain catcher/processor operators that may choose to 
participate in the opt-out fishery may have an incentive to use 
techniques to intentionally bias halibut PSC rates if mixing of hauls 
and the use of more than one operational line is permitted. Recent 
enforcement actions document intentional presorting of catch to bias 
observed catch rates of halibut PSC to maximize groundfish catch 
relative to constraining PSC or other groundfish catch. However, NMFS 
expects that opportunities to bias observer samples in the opt-out 
fishery will be reduced with the changes established under this rule.
    NMFS proposes to revise the regulatory text to include requirements 
to prevent the mixing of hauls and maintain only one operational line 
before the point where the observer samples catch. This action is 
necessary to be consistent with the intent of the final rule and 
provide the affected public with accurate information regarding these 
requirements.

Additional Changes

    Regulations at Sec.  679.80(f)(3)(iii)(F) include a grammatical 
error. This paragraph would be revised to correct the phrase, ``are the 
sum of all catch history'' to read, ``is the sum of all catch 
history.''
    Regulations at Sec.  679.82(d)(5)(iii) describe sideboard limits 
applicable to catcher vessels for the Program. This paragraph includes 
an erroneous cross-reference to ``Sec.  679.65(b)(1)(i)(B).'' This 
cross-reference would be corrected to read ``Sec.  679.64(b)(2)(ii).''
    Regulations at Sec.  679.82(d)(8)(ii)(B) include a misspelled word. 
This paragraph would be revised to correct the phrase, ``percent fo the 
GOA'' to read, ``percent of the GOA.''
    Regulations at Sec.  679.83(a)(1)(i) describe rockfish allocations 
for the

[[Page 18945]]

Program's entry level fishery. This paragraph includes an erroneous 
cross-reference to ``Sec.  679.81(ab)(2).'' This cross-reference would 
be corrected to read ``Sec.  679.81(a)(2).''

Classification

    NMFS has determined that this 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 
the purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act, for the regulations implementing the Program. 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 this action are contained in the 
preamble. Copies of the EA/RIR/IRFA prepared for the Program are 
available from NMFS (see ADDRESSES). A summary of that analysis 
follows.
    Why action by the agency is being considered and objectives of, and 
legal basis for, the proposed rule. The IRFA prepared for the Program 
describes in detail the reasons why this action is being proposed, 
describes the objectives and legal basis for the proposed rule, and 
discusses both small and non-small regulated entities to adequately 
characterize the fishery participants. Section 802 of the Consolidated 
Appropriations Act of 2004 and the Magnuson-Stevens Act provide the 
legal basis for the Program, namely to achieve the objective of 
reducing excessive fishing capacity and ending the race for fish under 
the current management strategy for commercial fishing vessels 
operating in the Central GOA rockfish fisheries. NMFS proposes to 
revise the regulatory text to include requirements to prevent the 
mixing of hauls and maintain only one operational line before the point 
where the observer samples catch. This action is necessary to be 
consistent with the intent of the Program and provide the affected 
public with accurate information regarding these requirements.
    Description of significant alternatives. The Council considered an 
extensive and elaborate series of alternatives, options, and suboptions 
as it designed and evaluated the potential for rationalization of the 
Central GOA rockfish fisheries, including the ``no action'' 
alternative. Three alternatives for catcher vessels were considered: 
Status Quo/No Action (Alternative 1); rockfish cooperative management 
with a limited license program for processors (Alternative 2); and 
rockfish cooperative management with linkages between rockfish 
cooperatives and processors (Alternative 3). Three alternatives for 
catcher/processors also were considered: Status Quo/No Action 
(Alternative 1); rockfish cooperative management (Alternative 2); and a 
sector allocation (Alternative 3). Alternative 3 for catcher vessels 
and Alternative 2 for catcher/processors were combined to form the 
Council's preferred alternative the rockfish cooperative alternative. 
The alternatives were analyzed relative to the status quo. Because the 
regulatory effect for opt-out sideboard fisheries will not occur until 
July, 1 2007, the status quo has not changed. Therefore, the effects of 
these alternatives described in the Program IRFA have not changed 
relative to this action. These alternatives constitute the suite of 
``significant alternatives,'' under the proposed action, for purposes 
of the Regulatory Flexibility Act (RFA).
    After an exhaustive public process spanning several years, the 
Council concluded that the Program best accomplishes the stated 
objectives articulated in the problem statement and applicable 
statutes, and minimizes to the extent practicable adverse economic 
impacts on the universe of directly regulated small entities.
    Number of small entities to which the proposed rule will apply. The 
IRFA prepared for the Program contains a description and estimate of 
the number of small entities to which the proposed rule would apply. 
The IRFA estimates that as many as 15 catcher/processor vessels are 
eligible to receive QS under the Program. The IRFA estimates that 
approximately 171 trawl vessels and 900 non-trawl vessels could 
participate in the entry level fishery. The number of vessels that 
would choose to participate in the entry level fishery component of the 
Program is not known; therefore, there is no estimate of the number of 
entities in the entry level fishery that are directly regulated under 
this Program.
    In addition, six entities that process rockfish are estimated to be 
eligible rockfish processors and would be regulated under this Program. 
None of these eligible rockfish processors are estimated to be small 
entities based on the number of persons employed by these processors. 
Additionally, some of these eligible rockfish processors are estimated 
to be involved in both the harvesting and processing of seafood 
products and exceed the $4.0 million in revenues as a fish harvesting 
operation. Some processors that are not eligible rockfish processors 
may choose to compete for landings from the entry level fishery and 
would be regulated by this Program. Some of these processors may be 
small entities. The extent of participation by small entities in the 
processing segment of the entry level fishery cannot be predicted.
    Of the estimated 63 entities owning vessels eligible for fishing 
under the Program (other than the entry-level fishery), 45 are 
estimated to be small entities because they generated $4.0 million or 
less in gross revenue based on participation in 1996 through 2002. All 
15 of the entities owning eligible catcher/processor vessels are non-
small entities as defined by the RFA. No catcher vessel individually 
exceeds the small entity threshold of $4.0 million in gross revenues. 
At least three catcher vessels are believed to be owned by entities 
whose operations exceed the small entity threshold, leaving an 
estimated many as 45 small catcher vessel entities that are directly 
regulated by this action. The ability to estimate the number of small 
entities that operate catcher vessels regulated by this action is 
limited due to incomplete information concerning vessel ownership.
    It is likely that a substantial portion of the catcher vessel 
participants in the entry level fishery will be small entities. Based 
on data from NOAA Fisheries, there are approximately 171 LLP licenses 
that would be qualified to fish in the Central GOA entry level trawl 
fishery, and 900 LLP licenses that would qualify to fish in the entry 
level fixed gear fishery. However, it is not possible to determine how 
many persons may hold these LLP licenses and chose to participate in 
the entry level fishery at the time of application to participate in 
the fishery. The number of persons holding LLPs is likely to be less 
than the total number of LLP licenses that may be used to participate 
in the entry level fishery because a person may hold more than one LLP 
license at a time.
    Six entities made at least one rockfish landing from 1996 to 2002, 
but none appeared to qualify as an eligible rockfish harvester. Five of 
these entities are not small entities and one entity qualifies as 
``small'' by Small Business Administration (SBA) standards. The non-
small entities owned five catcher/processors. The one small entity owns 
a catcher vessel. Entities that do not qualify for the Program either 
left the fishery, currently fish under interim LLP licenses, or do not 
hold an LLP license. Moreover, the vessels the IRFA prepared for the 
Program considers ``non-qualified'' could not or would not be allowed 
to continue fishing under the

[[Page 18946]]

current LLP. The impacts to the small entities that would be prohibited 
from fishing by the LLP were analyzed in the RIR/IRFA and Final 
Regulatory Flexibility Analysis (FRFA) prepared for the LLP. Therefore, 
the non-qualified vessels are not considered impacted by the proposed 
rule and are not discussed in this IRFA.
    For purposes of the RIR prepared for the Program, the community of 
Kodiak, Alaska, could be directly impacted by the Program. All of the 
eligible rockfish processors are located in Kodiak. The specific 
impacts on Kodiak cannot be determined until NMFS issues QS and 
eligible rockfish harvesters begin fishing under the Program. Other 
supporting businesses may also be indirectly affected by this action if 
it leads to fewer vessels participating in the fishery. These impacts 
are analyzed in the RIR prepared for this action (see ADDRESSES).
    Projected reporting, recordkeeping and other compliance 
requirements. Implementation of the Program would change the overall 
reporting structure and recordkeeping requirements of the participants 
in the Central GOA rockfish fisheries. All participants would be 
required to provide additional reporting. Each harvester would be 
required to track harvests to avoid exceeding his or her allocation. As 
in other North Pacific rationalized fisheries, processors would provide 
catch recording data to managers to monitor harvest of allocations. 
Processors would be required to record deliveries and processing 
activities to aid in the Program administration. The specifics of 
changes to reporting and recordkeeping requirements can be found in the 
preamble to the Program proposed rule (71 FR 33040, June 2, 2006).
    Federal rules which may duplicate, overlap or conflict with the 
proposed rule. No Federal rules that may duplicate, overlap, or 
conflict with this proposed action have been identified.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 11, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For reasons stated in the preamble, NMFS proposes to amend 50 CFR 
part 679 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., 3631 et seq.; 
and Pub. L. 108-199, 118 Stat. 110.
    2. In Sec.  679.80, revise paragraph (f)(3)(iii)(F) to read as 
follows:


Sec.  679.80  Initial allocation of rockfish QS.

* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (F) Determine the percentage of legal rockfish landings from the 
official Rockfish Program record in the qualifying years used to 
calculate the rockfish QS assigned to the catcher/processor sector and 
multiply the rockfish QS units calculated in paragraph (f)(3)(iii)(E) 
of this section by this percentage. This yields the rockfish QS units 
to be assigned to the catcher/processor sector for that LLP license and 
species. For each primary rockfish species, the total amount of 
rockfish QS units assigned to the catcher/processor sector is the sum 
of all catch history allocation units assigned to all eligible rockfish 
harvesters in the catcher/processor sector.
* * * * *
    3. In Sec.  679.82, revise paragraphs (d)(5)(iii) and (d)(8)(ii)(B) 
to read as follows:


Sec.  679.82  Rockfish Program use caps and sideboard limits.

* * * * *
    (d) * * *
    (5) * * *
    (iii) Any AFA vessel that is not exempt from GOA groundfish 
sideboards under the AFA as specified under Sec.  679.64(b)(2)(ii) is 
exempt from the sideboard limits in this paragraph (d).
* * * * *
    (8) * * *
    (ii) * * *
    (B) The aggregate halibut PSC used in the shallow-water complex 
from July 1 through July 31 in each year from 1996 through 2002 by LLP 
licenses assigned to that rockfish cooperative that are subject to 
directed fishing closures under this paragraph (d), divided by 0.54 
percent of the GOA annual halibut mortality limit.
* * * * *
    4. In Sec.  679.83, revise paragraph (a)(1)(i) to read as follows:


Sec.  679.83  Rockfish Program entry level fishery.

    (a) * * *
    (1) * * *
    (i) Trawl catcher vessels. Trawl catcher vessels participating in 
the rockfish entry level fishery may collectively harvest, prior to 
September 1, an amount not greater than 50 percent of the total 
allocation to the rockfish entry level fishery as calculated under 
Sec.  679.81(a)(2). Allocations to trawl catcher vessels shall be made 
first from the allocation of Pacific ocean perch available to the 
rockfish entry level fishery. If the amount of Pacific ocean perch 
available for allocation is less than the total allocation allowable 
for trawl catcher vessels in the rockfish entry level fishery, then 
northern rockfish and pelagic shelf rockfish shall be allocated to 
trawl catcher vessels.
* * * * *
    5. In Sec.  679.84, revise paragraph (d) to read as follows:


Sec.  679.84  Rockfish Program recordkeeping, permits, monitoring, and 
catch accounting.

* * * * *
    (d) Catch monitoring requirements for catcher/processors assigned 
to the opt-out fishery. At all times any catcher/processor vessel 
assigned to the opt-out fishery has groundfish onboard that vessel that 
were harvested subject to a sideboard limit as described under Sec.  
679.82(d) through (h), as applicable, the vessel owner or operator must 
ensure catch from an individual haul is not mixed with catch from 
another haul prior to sampling by a NMFS-certified observer, that all 
catch be made available for sampling by a NMFS-certified observer, and 
that the requirements in paragraphs (c)(3), (4), (5), (8), and (9) of 
this section are met.
* * * * *
[FR Doc. E7-7193 Filed 4-13-07; 8:45 am]
BILLING CODE 3510-22-S