[Federal Register Volume 72, Number 132 (Wednesday, July 11, 2007)]
[Rules and Regulations]
[Pages 37678-37681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13475]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 060511126-7122-05; 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: Final rule.

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SUMMARY: NMFS issues this final 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 final 
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: Effective on August 10, 2007.

ADDRESSES: 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 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 (LLP) 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 sideboard limits, 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 sideboard limits.

Need for Corrections to the November 20, 2006, Final Rule

    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

[[Page 37679]]

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 undermine NMFS' ability to 
determine accurate halibut PSC usage for specific fisheries and create 
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 represent 
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 sideboard limits 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 sideboard limits 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.
    This action revises 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 is 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 is corrected to read ``Sec.  679.64(b)(2)(ii).''
    Regulations at Sec.  679.82(d)(8)(ii)(B) include a misspelled word. 
This paragraph is 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 Program's entry level fishery. This paragraph includes an 
erroneous cross-reference to ``Sec.  679.81(ab)(2).'' This cross-
reference is corrected to read ``Sec.  679.81(a)(2).''
    The proposed rule to revise Central GOA rockfish fisheries M&E 
provisions related to catcher/processor vessels harvesting under the 
opt-out fishery and to correct regulations governing the rockfish 
fisheries was published in the Federal Register on April 16, 2007 (72 
FR 18943), and the public review and comment period closed on April 30, 
2007. NMFS received one letter on the proposed rule that contained two 
separate comments. The following summarizes and responds to these 
comments, which are summarized and responded to below. This final rule 
has not been changed from the April 16, 2006, proposed rule.

Response to Comments

    Comment 1: All quotas should be reduced by 50 percent this year, 
and 10 percent each subsequent year.
    Response: This final rule implements revisions to Central GOA 
rockfish fisheries M&E provisions related to catcher/processor vessels 
harvesting under the opt-out fishery. These revisions do not have any 
relationship to the establishment of harvest specifications or the 
assignment of quotas or allocations in the North Pacific groundfish 
fisheries, so this comment is outside the scope of this rulemaking.
    Comment 2: Because trawl gear is environmentally destructive by 
nature, NMFS should ban all trawlers from this area.
    Response: This final rule implements revisions to M&E provisions in 
a management program that was previously implemented. The Program was 
approved by the Secretary after undergoing rulemaking and that action 
was supported by an EA/RIR/IRFA. The EA/RIR/IRFA specifically analyzed 
the effects of fishing in the GOA, and NMFS determined that the Program 
would not result in any significant impacts to the human environment.

Classification

    The Administrator, Alaska Region, NMFS, determined that this rule 
is necessary for the conservation and management of the groundfish 
fisheries off Alaska and that it is consistent with the Magnuson-
Stevens Fishery Conservation and Management Act and other applicable 
laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared for the Program proposed rule, and described 
in the Classification section of the preamble to the proposed rule for 
this action. The public comment period ended on April 30, 2007. No 
comments were received on the IRFA or on the economic effects of the 
rule.
    NMFS prepared a FRFA for regulations implementing the Program. The 
FRFA incorporates the IRFA and a summary of the analyses completed to

[[Page 37680]]

support the action. A copy of this analysis is available from NMFS (see 
ADDRESSES). A summary of the analysis follows.

Need for and Objective of the Rule

    The FRFA prepared for the Program describes in detail the 
objectives, need, and legal basis for the action, 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. This action revises 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.

Significant Alternatives and Steps to Minimize the Economic Impacts on 
Small Entities

    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'' for purposes of the Regulatory 
Flexibility Act (RFA).
    After an extensive public process spanning several years, NMFS 
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.

Estimate of the Number and Description of Small Entities Affected by 
Final Rule

    The FRFA prepared for the Program contains a description and 
estimate of the number of small entities to which the proposed rule 
would apply. The FRFA estimates that as many as 15 catcher/processor 
vessels are eligible to receive QS under the Program. The FRFA 
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 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. As mentioned earlier, it is not possible to 
determine how many persons may hold these LLP licenses and may choose 
to participate in the entry level fishery at the time of application. 
However, the number of persons holding LLP licenses 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.
    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 FRFA considers ``non-qualified'' 
would not be allowed to continue fishing under the current LLP. The 
impacts to the small entities that would be prohibited from fishing by 
the LLP were analyzed in the RIR/IRFA and FRFA prepared for the LLP. 
Therefore, the non-qualified vessels are not considered impacted by the 
proposed rule and are not discussed in this FRFA.
    The RIR prepared for the Program indicated that 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 the Program (see ADDRESSES).

Projected Reporting, Recordkeeping and other Compliance Requirements

    Implementation of the Program changed the overall reporting 
structure and recordkeeping requirements of the participants in the 
Central GOA rockfish fisheries. All participants are required to 
provide additional reporting. Each harvester is required to track 
harvests to avoid exceeding his or her allocation.

[[Page 37681]]

As in other North Pacific rationalized fisheries, processors must 
provide catch recording data to managers to monitor harvest of 
allocations. Processors are 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). These reporting and recordkeepig requirements affect entities 
subject to Program requirements. However, this final rule does not 
revise those requirements described in the final rule implementing the 
Program, and does not impose additional reporting and recordkeeping 
requirements.

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: July 5, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons stated in the preamble, NMFS amends 50 CFR part 679 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., 3631 et seq.; 
and Pub. L. 108-199, 118 stat.110.

0
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.
* * * * *

0
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.
* * * * *

0
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.
* * * * *

0
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. E7-13475 Filed 7-10-07; 8:45 am]
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