[Federal Register Volume 72, Number 219 (Wednesday, November 14, 2007)]
[Proposed Rules]
[Pages 64034-64037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22237]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 071029545-7545-01]
RIN 0648-AU85


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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to modify the Individual Fishing 
Quota (IFQ) Program for the fixed-gear commercial Pacific halibut 
fishery and sablefish fishery by revising regulations governing use of 
commercial halibut quota share (QS) and processing of non-IFQ species 
when processed halibut is onboard a vessel. This action would amend 
current regulations to allow persons holding category A halibut QS to 
process IFQ regardless of whether a QS holder with unused category B, 
C, or D halibut QS is onboard the vessel. This action also would allow 
catcher/processor vessels to process non-IFQ species regardless of 
whether any processed IFQ species is onboard the vessel. This action is 
necessary to improve the efficiency of fishermen fishing on catcher/
processor vessels. The intended effect of this action is to allow 
halibut QS holders greater flexibility in using their QS, allow use of 
crew who hold unused category B, C, or D halibut QS while onboard a 
category A halibut QS vessel, and increase the product quality of non-
IFQ species harvested incidentally to IFQ halibut.

DATES: Comments must be received no later than December 14, 2007.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. 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: IFQ 
Halibut Sablefish 0648-AU85. E-mail comments, with or without 
attachments, are limited to 5 megabytes; or
     Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the Categorical Exclusion (CE), Regulatory Impact Review 
(RIR), and Initial Regulatory Flexibility Analysis (IRFA) prepared for 
this action may be obtained from the North Pacific Fishery Management 
Council (Council) at 605 West 4th, Suite 306, Anchorage, Alaska 99501-
2252, 907-271-2809, or the NMFS Alaska Region, P.O. Box 21668, Juneau, 
Alaska 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region 
website at http://www.noaa.fakr.gov.

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

SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission 
(IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus 
stenolepis) through regulations established under the authority of the 
Convention between the United States and Canada for the Preservation of 
the Halibut Fishery of the Northern Pacific Ocean and Bering Sea 
(Convention) and the Northern Pacific Halibut Act of 1982 (Halibut 
Act). The IPHC promulgates regulations pursuant to the Convention. The 
IPHC's regulations are subject to approval by the Secretary of State 
with concurrence from the Secretary of Commerce (Secretary). After 
approval by the Secretary of State and the Secretary, the IPHC 
regulations are published in the Federal Register as annual management 
measures pursuant to 50 CFR 300.62 (72 FR 11792; March 14, 2007).
    The Halibut Act also authorizes the Council to develop and submit 
regulations to the Secretary to allocate harvesting privileges among 
U.S. fishermen. Regulations developed by the Council are implemented 
only with the approval of the Secretary. Like the original IFQ Program 
regulations and subsequent amendments to them, this action was 
developed by the Council under authority of the Halibut Act.
    The Council, under the authority of the Halibut Act (with respect 
to Pacific halibut) and the Magnuson-Stevens Fishery Conservation and 
Management Act (with respect to sablefish), adopted the IFQ Program in 
1991. The Halibut and Sablefish IFQ Program established a limited 
access system for managing the fixed gear Pacific halibut fishery in 
Convention waters in and off Alaska and sablefish fisheries in waters 
of the Exclusive Economic Zone, located between 3 and 200 miles off 
Alaska. The IFQ Program was approved by NMFS in January 1993, and 
promulgated in Federal regulation on November 9, 1993 (58 FR 59375). 
Fishing under the Halibut and Sablefish IFQ Program began on March 15, 
1995, ending the open access fishery which preceded its implementation. 
Regulations implementing the Halibut and Sablefish IFQ Program are at 
50 CFR part 679. In addition, Federal regulations at 50 CFR part 300, 
subpart E, also govern the halibut IFQ fishery.
    The Halibut and Sablefish IFQ Program was developed to reduce 
fishing capacity that had increased during years of management as an 
open access fishery, while maintaining the social and economic 
character of the fixed gear fishery that is relied on as a source of 
revenue for coastal communities in Alaska. The Council and the 
Secretary concluded that the Halibut and Sablefish IFQ Program would 
provide economic stability for the commercial hook-and-line fishery 
while reducing many of the conservation and management problems 
commonly associated with open access

[[Page 64035]]

fisheries. The proposed rule for the IFQ Program (57 FR 57130; December 
3, 1992) describes, in detail, the background leading to the Council's 
adoption of the Halibut and Sablefish IFQ Program.
    Under the IFQ Program, QS represents a harvesting privilege for a 
person. On an annual basis, QS holders are authorized to harvest a 
specified poundage which is issued by NMFS as IFQ. The specific amount 
of IFQ held by a person is determined by the number of QS units held, 
the total number of QS units issued in a specific regulatory area, and 
the total pounds of sablefish or halibut allocated for the IFQ 
fisheries in a particular year. Fishermen may harvest the IFQ over the 
entire fishing season, which in 2007 is March 10 through November 15 
for halibut (72 FR 11792; March 14, 2007) and during the same period 
for the sablefish (72 FR 9676; March 5, 2007). Generally, an IFQ holder 
must be onboard at the time his or her IFQ is fished. This requirement 
was designed to maintain a predominantly owner-operated fishery that 
was a characteristic of the fishery prior to the implementation of the 
IFQ Program.
    Federal regulations at 50 CFR 679.40(a)(5) divide QS into vessel 
categories (A, B, C, and D for halibut and A, B, and C for sablefish) 
with unique restrictions designed to prevent excessive consolidation 
and regulate total harvest. Category A QS holders are authorized to 
harvest and process either IFQ species on a vessel of any length. 
Category B QS holders may harvest either IFQ species from any size 
vessel, but may not process halibut or sablefish onboard. Category C QS 
holders may harvest, but may not process, either IFQ species on a 
vessel that is less than or equal to 60 ft (18.3 m) length overall 
(LOA). Finally, category D QS holders may harvest, but not process, 
halibut on vessels less than or equal to 35 ft (10.7 m) LOA. Vessels 
that harvest fish only and do not process those fish commonly are 
referred to as ``catcher vessels'' while vessels capable of harvesting 
and processing are referred to as ``catcher/processors.'' Hence, 
vessels in category A are catcher/processor vessels and those in 
categories B, C, and D are catcher vessels.
    With few exceptions, halibut QS or IFQ assigned to a vessel 
category may not be used to harvest IFQ species on a vessel of a 
different category. Again, this vessel category system was intended by 
the Council and the Secretary to maintain a predominantly owner-
operated fishery by protecting the QS and IFQ held by small vessel 
owners from being purchased and used on large vessels.
    The IFQ Program initially included other provisions designed to 
protect small catcher vessels from potential economic competition with 
larger catcher/processors. Among these economic protection measures was 
a prohibition against processing non-IFQ species (e.g., Pacific cod) 
onboard a vessel on which a person held catcher vessel IFQ for either 
IFQ species. This prohibition responded to a concern that owners of 
large catcher/processor vessels could harvest a large portion of 
halibut or sablefish that would ordinarily be harvested by smaller 
catcher vessels. The result could be an increase in harvesting of IFQ 
species on catcher/processor vessels and a decrease in harvesting of 
IFQ species on smaller catcher vessels that historically landed their 
catch at shoreside processors located in small coastal communities. 
This could have a detrimental socioeconomic effect on these small 
communities that rely on revenue generated from catcher vessel 
deliveries to shoreside processors located in these small coastal 
communities.
    Although concern for the economic vitality of coastal communities 
remained strong, the Council recommended relaxing part of this 
prohibition with regard to sablefish soon after the initial 
implementation of the IFQ Program. The Council proposed and the 
Secretary approved Amendment 33 to the Fishery Management Plan for 
Groundfish of the Bering Sea and Aleutian Islands Management Area and 
Amendment 37 to the Fishery Management Plan for Groundfish of the Gulf 
of Alaska. A proposed rule for Amendments 33 and 37 was published April 
2, 1996 (61 FR 14547) and a final rule was published June 27, 1996 (61 
FR 33382). These amendments and their implementing regulations allowed 
persons with category A QS to process non-IFQ species when a person 
with unused sablefish IFQ derived from QS categories B, C or D is 
onboard the catcher/processor vessel. The amendments also allowed 
holders of category A QS to harvest IFQ sablefish when persons holding 
unused catcher vessel sablefish IFQ were onboard the vessel.
    The prohibition on processing non-IFQ species resulted in the 
unanticipated waste of species caught incidentally to halibut and 
sablefish, especially rockfish and Pacific cod. With some exceptions, 
Federal regulations require fishermen to retain all Pacific cod and 
rockfish caught incidentally in IFQ halibut and sablefish fisheries. 
The retention requirement forces fishermen to consider the impact that 
their time at-sea will have on product quality if at-sea processing is 
not an option. This is especially problematic in the IFQ fisheries 
because non-IFQ species such as Pacific cod and rockfish are reported 
to degrade at a quicker rate than IFQ species. Thus, fishermen focus 
effort on valuable IFQ species and choose to not offload species of 
lesser value in a condition that would allow the product to be graded 
as high quality. In severe situations, non-IFQ species may be offloaded 
in such poor condition that they must be discarded or can only be 
processed into low value products.
    Amendments 33 and 37 and their implementing regulations relieved 
the prohibition on processing of non-IFQ species only with regard to 
sablefish IFQ, but not halibut IFQ. The Council did not extend the 
regulations to the halibut fishery because (a) participation in the 
halibut fishery includes many small local vessels that do not have 
processing capabilities, and (b) the Council wanted to maintain a 
diverse fishing fleet where all segments continue to exist along with 
the social structures associated with those segments.
    However, the same issues that led the Council to relieve the 
processing prohibition with regard to sablefish IFQ occurred with 
regard to halibut IFQ. In addition to the unanticipated waste of non-
IFQ species, persons fishing halibut IFQ derived from category A QS 
could not process any species if a person onboard the vessel held 
unused halibut IFQ derived from category B, C, or D QS. Also, operators 
of catcher/processor vessels fishing for Pacific cod, for example, 
would have to employ crew members who did not have unused catcher 
vessel IFQ (i.e., IFQ derived from category B, C, or D halibut QS) for 
halibut, or catcher/process operators would have to delay fishing for 
non-IFQ species until all crew members onboard had fully used their 
catcher vessel IFQ for halibut. Hence, the processing restriction 
limited the crew that could be onboard catcher/processor vessels and 
the timing of fishing by catcher/processor vessels.
    In October 2004, the Council reviewed two proposals requesting that 
regulations similar to the non-IFQ species processing exception 
provided for the sablefish IFQ fishery in Amendments 33 and 37 be 
applied also to the halibut IFQ fishery. One proposal recommended 
relieving restrictions that prohibit a catcher/processor vessel with 
category A QS from harvesting and processing halibut if a person with 
unused category B, C, or D QS is

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onboard the vessel. A second proposal recommended allowing processed 
non-IFQ species to be onboard a vessel that is otherwise authorized to 
process IFQ species and non-IFQ species. Both proposals would require 
the same regulatory change, although each proposal was different.
    This proposed action would satisfy both proposals and is intended 
to increase the revenue generated from harvested species by (1) 
allowing non-IFQ fish species to be processed on a vessel otherwise 
authorized to process fish, rather than allowing non-IFQ species to 
degrade into low value products or be wasted while IFQ species are 
sought; and (2) allowing processed and unprocessed IFQ species to be 
onboard the same vessel during the same fishing trip. For example, this 
proposed regulation would allow a person holding category A halibut IFQ 
to harvest halibut and process all incidentally caught fish species if 
a person onboard the vessel held unused category B, C, or D QS. 
Additionally, catcher/processor vessel operators could employ crew 
members who hold unused halibut IFQ derived from QS categories B, C, or 
D.
    In December 2004, the Council initiated an analysis of the 
proposals presented at its October 2004 meeting. In February 2005, the 
Council combined the regulatory proposals into a single alternative for 
analysis. The Council released the analysis for public review in 
December 2005 and adopted a recommendation to the Secretary for this 
proposed regulatory amendment in June 2006.
    This proposed action would allow the processing of non-IFQ and IFQ 
species on a vessel that is otherwise authorized to process non-IFQ 
species when any amount of halibut IFQ resulting from QS in categories 
B, C, or D are held by persons onboard the vessel. This action would 
not allow the processing of category B, C, or D halibut IFQ onboard a 
catcher/processor vessel. Instead, this action would allow persons 
possessing unused catcher vessel category B, C, or D halibut QS to be 
onboard a catcher/processor vessel when that vessel is harvesting and 
processing category A halibut or sablefish IFQ or is harvesting and 
processing non-IFQ species. This action is proposed to relieve a 
restriction on catcher/processor vessels which would increase their 
efficiency. The proposed regulatory change would remove regulatory text 
currently at Sec. Sec.  679.7(f)(13) and (14) and Sec.  679.42(k). No 
new regulatory text is proposed.

Classification

    The proposed rule does not modify recordkeeping or reporting 
requirements, or duplicate, overlap, or conflict with any Federal 
rules. This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866. This proposed rule also 
complies with the Halibut Act and the Secretary's authority to 
implement allocation measures for the management of the halibut 
fishery.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act. The IRFA 
describes the economic impact that this proposed rule, if adopted, 
would have on directly regulated small entities. A business is 
considered a small entity if annual gross revenues are less than $4.0 
million. A copy of this analysis is available from NMFS (see 
ADDRESSES). A description of this action, why it is being considered, 
and the legal basis for this action are presented above in the preamble 
to this rule. A summary of the IRFA follows.

Summary of IRFA

    The Council reviewed two alternatives: the ``no action'' 
alternative; and the ``preferred alternative.'' The preferred 
alternative would directly regulate approximately 3,233 persons holding 
category B, C, or D halibut QS, 33 catcher/processor vessels, and 1,312 
vessels that hold catcher vessel endorsements for vessels less than 60 
ft (18.6 m) length overall on their license limitation permits. NMFS 
does not possess sufficient ownership and affiliation information to 
determine the precise number of quota share holders considered small 
entities in the IFQ Program or the number of small entities that would 
be adversely impacted by this action. NMFS assumes that all directly 
regulated entities have gross revenues less than $4 million, and that 
they are thus small entities for the purposes of the Regulatory 
Flexibility Act. In 2004, 1,335 unique IFQ vessels made IFQ landings.
    Compared with status quo, the preferred alternative may increase 
the revenue generated from non-IFQ species harvested by increasing the 
quality of offloaded product. The preferred alternative would allow QS 
holders already authorized to process fish at-sea to optimize the 
revenue generated from harvested non-IFQ groundfish. Processing 
capacity is not expected to increase because the number of vessels 
currently authorized to process groundfish catch onboard while 
harvesting IFQ derived from category A quota share would not change. 
The preferred alternative also may increase benefits to persons holding 
QS because it allows IFQ to be processed regardless of whether another 
quota share holder is onboard, including crew holding catcher vessel 
category B, C, or D QS who are working onboard vessels with category A 
QS.
    NMFS is not aware of any additional alternatives to those 
considered that would accomplish the objectives of the action and that 
would minimize the economic impact of the proposed rule on small 
entities. The Council received two proposals on this issue, 
incorporated them both into the preferred alternative, and evaluated 
them jointly after a preliminary review found that they were 
functionally the same. The Council's action alternative would 
completely repeal the subject requirements. Repeal would remove a 
restriction from directly regulated entities and potentially lead to 
increased profits. Other alternatives might have been designed to limit 
the ability of this action to accomplish the objectives, by limiting 
the scope of the repeal to particular species or halibut QS classes, or 
by providing for a delayed effective date. However, these alternatives 
would not have been significantly different from the action 
alternative. They would not have involved substantively different 
approaches to addressing the problem that had been identified. 
Moreover, since this is an action to relax a restriction on directly 
regulated small entities, these alternatives would only have reduced 
the potential benefits of this action for these small entities or the 
classes of entities that might benefit from them.
    According to NOAA Administrative Order (NAO) 216-6, including the 
criteria used to determine significance, this rule would not have a 
significant effect, individually or cumulatively, on the human 
environment beyond those effects identified in the previous National 
Environmental Policy Act (NEPA) analysis. An environmental impact 
statement (EIS; dated December 1992) was prepared for the final rule 
implementing the original halibut and sablefish IFQ and CDQ programs 
(58 FR 59375; November 9, 1993). The scope of the EIS includes the 
potential environmental impacts of this proposed rule because the EIS 
analyzed the original IFQ Program, which included analyses of 
biological and socioeconomic impacts on the environment, affected 
fishermen, and affected communities. Based on the nature of the 
proposed rule and the

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previous environmental analysis, this proposed rule is categorically 
excluded from the requirement to prepare either an EIS or an 
environmental assessment, in accordance with Section 5.05b of NAO 216-
6. Copies of the EIS for the original halibut and sablefish IFQ and CDQ 
programs and the categorical exclusion for this action are available 
from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: November 6, 2007.
John Oliver
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended 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.


Sec.  679.7  [Amended]

    2. In Sec.  679.7, paragraph (f)(13) is removed and reserved, 
paragraph (f)(15) is removed, and paragraphs (f)(16) and (f)(17) are 
redesignated as paragraphs (f)(15) and (f)(16), respectively.


Sec.  679.42  [Amended]

    3. In Sec.  679.42, paragraph (k) is removed and paragraph (l) is 
redesignated as paragraph (k).
[FR Doc. E7-22237 Filed 11-13-07; 8:45 am]
BILLING CODE 3510-22-S