[Federal Register Volume 73, Number 44 (Wednesday, March 5, 2008)]
[Proposed Rules]
[Pages 11851-11858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4247]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070717351-7373-01]
RIN 0648-AV64


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 both the Individual 
Fishing Quota (IFQ) Program and the Community Development Quota (CDQ) 
Program for the fixed-gear commercial Pacific halibut and sablefish 
fisheries. This action would amend current regulations to remove a 
prohibition against the use of longline pot fishing gear in the Bering 
Sea sablefish IFQ and sablefish CDQ fisheries in the month of June. 
This action also would add regulatory provisions to allow members of 
the National Guard and military reserves who are mobilized to active 
duty to temporarily transfer their annual halibut and sablefish IFQ to 
other eligible IFQ recipients. This action is necessary to increase the 
efficiency of fishermen operating longline pot vessels in the Bering 
Sea sablefish fishery and to allow guardsmen and reservists to accrue 
some economic benefit from their annual IFQ if unable to harvest it due 
to military service. This proposed action is intended to promote the 
conservation and management provisions in the Fishery Management Plan 
for Groundfish of the Bering Sea and Aleutian Islands Management Area 
(FMP) and the Northern Pacific Halibut Act of 1982 (Halibut Act).

DATES: Comments must be received no later than April 4, 2008.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN 
0648-AV64'' by any of the following methods:
     Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for 
submitting comments.
     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.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change.
    NMFS will accept anonymous comments. Attachments to electronic 
comments must be in Microsoft Word, Excel, WordPerfect, or Adobe 
portable document file (pdf) file formats to be accepted.
    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, 
AK 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region website 
at http://www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS at the above address, and by e-mail to 
[email protected] or by fax to 202-395-7285.

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

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
of the Bering Sea and Aleutian Islands (BSAI) in the Exclusive Economic 
Zone (EEZ) under the BSAI FMP. The FMP was prepared by the Council 
under the Magnuson-Stevens Fishery Conservation and Management Act (16 
U.S.C. 1801 et seq.) (Magnuson-Stevens Act) and is implemented by 
regulations at 50 CFR part 679. General regulations that pertain to 
U.S. fisheries appear at subpart H of 50 CFR part 600. NMFS manages 
fishing for sablefish (Anoplopoma fimbria) through regulations 
established under the authority of the Magnuson-Stevens Act. Sablefish 
is managed as a groundfish species under the FMP, as well as under the 
IFQ Program (described below) that allocates sablefish and Pacific 
halibut (Hippoglossus stenolepis) harvesting privileges among U.S. 
fishermen.
    The International Pacific Halibut Commission (IPHC) and NMFS manage 
fishing for Pacific halibut 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 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 these two 
officials, 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). Federal regulations governing the halibut fisheries in 
the BSAI management area appear at 50 CFR parts 300 and 679.

Background and Need for Action

A. The IFQ Program

    The Council, under the authority of the Halibut Act (with respect 
to Pacific halibut) and the Magnuson-Stevens 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 EEZ, 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

[[Page 11852]]

IFQ Program began on March 15, 1995, ending the open access fisheries 
which preceded its implementation. Regulations implementing the Halibut 
and Sablefish IFQ Program are at 50 CFR part 679.
    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 fisheries that coastal communities in 
Alaska rely on as a source of revenue. 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 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.
    The Council and NMFS also intended the IFQ Program to improve the 
long-term productivity of the sablefish and halibut fisheries by 
further promoting the conservation and management objectives of the 
Magnuson-Stevens Act and the Halibut Act while retaining the character 
and distribution of the fishing fleets as much as possible. The IFQ 
Program includes several provisions, such as ownership caps and vessel 
use caps, that are intended to protect small producers, part-time 
participants, and entry-level participants that otherwise could be 
adversely affected by excessive consolidation. The IFQ Program also 
includes other restrictions intended to prevent the halibut and 
sablefish fisheries from being dominated by large boats or by any 
particular vessel class. These and other types of requirements were 
designed to maintain predominantly owner-operated fisheries, which was 
a key characteristic of the halibut and sablefish fisheries prior to 
the implementation of the IFQ Program.
    Under the IFQ Program, quota share (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 was March 10 through 
November 15 for halibut (72 FR 11792; March 14, 2007) and sablefish (72 
FR 9676; March 5, 2007). Generally, an IFQ permit holder must be 
onboard a vessel at the time his or her IFQ is fished. He or she also 
must comply with IFQ landing report requirements at Sec.  679.5(l)(2).
    IFQ regulations also restrict the type of QS and IFQ transfers that 
may occur, including restrictions against the transfer of most types of 
QS if the QS is subject to a lease or condition of repossession or 
resale by the person transferring the QS. This effectively precludes 
temporary transfers of QS and IFQ between parties. QS is categorized by 
vessel size and type. IFQ derived from QS associated with processing 
vessels (vessel category A) may be temporarily transferred or leased, 
while much of the IFQ derived from QS associated with catcher vessels 
(vessel categories B, C, and D) may not be temporarily transferred or 
leased, with limited exception.
    The requirements that catcher vessel QS holders be onboard a vessel 
while conducting IFQ fishing operations and present during an IFQ 
landing, as well as the restrictions against temporary transfers of 
IFQ, are conditionally excepted by other IFQ Program regulations.
    There are three exceptions to the general IFQ transfer restrictions 
at Sec.  679.41. Emergency waivers to IFQ landing requirements are 
allowed in limited situations (i.e., emergency medical situations that 
occur at sea) and only allow the IFQ associated with a particular 
permit to be temporarily fished, and an IFQ landing made, by someone 
other than the permit holder or IFQ hired master (see Sec.  
679.42(d)(1)). Secondly, halibut and sablefish QS holders may request 
medical transfers of their IFQ (see Sec.  679.42(d)(2)) in the event of 
a medical conditions affecting a QS holder or immediate family member. 
Finally, a surviving spouse or beneficiary of a deceased QS holder may 
transfer the associated IFQ for up to three years to an eligible IFQ 
recipient (see Sec.  679.41(k)(3)).
    An exception to the owner-on-board requirement is provided for 
individuals who received initial allocations of QS in vessel category 
B, C, or D. Initial recipients of catcher vessel QS may be absent from 
a vessel conducting IFQ halibut or sablefish fishing, provided the QS 
holder can demonstrate ownership of the vessel which harvests the IFQ 
halibut or sablefish and representation on the vessel by a hired 
master. This exception allows fishermen who historically operated their 
fishing businesses using hired masters before the implementation of the 
IFQ Program to retain the flexibility of using hired masters under the 
IFQ Program. Hired master provisions also are applicable to the CDQ 
Program (described below), as annual halibut CDQ is issued to corporate 
entities. Each CDQ entity annually authorizes numerous fishermen to 
fish for its halibut CDQ and land halibut for accrual against the CDQ 
entity's halibut CDQ permit.

B. The CDQ Program

    The CDQ Program is an economic development program associated with 
federally managed fisheries in the BSAI. The purpose of the program is 
to provide western Alaska communities the opportunity to participate 
and invest in BSAI fisheries, to support economic development in 
western Alaska, to alleviate poverty and provide economic and social 
benefits for residents of western Alaska, and to achieve sustainable 
and diversified local economies in western Alaska.
    The CDQ Program receives apportionments of the annual catch limits 
for a variety of commercially valuable species in the BSAI. These 
allocations are in turn allocated among six different non-profit 
managing organizations (CDQ entities) representing different 
affiliations of 65 different communities. CDQ entities use the revenue 
derived from the harvest of their fisheries allocations as a basis for 
funding economic development activities and for providing employment 
opportunities. Thus, the successful harvest of CDQ Program allocations 
is integral to achieving the goals of the program.
    Regulations establishing the CDQ Program were first implemented in 
1992. The CDQ Program was incorporated into the Magnuson-Stevens Act in 
1996 through the Sustainable Fisheries Act (Public Law 104-297). 
Section 305(i)(1) of the Magnuson-Stevens Act includes requirements to 
establish the CDQ Program and allocate a percentage of the total 
allowable catch of any Bering Sea fishery to the program. Corresponding 
Federal and state regulations implemented various administrative and 
fisheries management aspects of the CDQ Program. The fisheries 
management regulations governing the CDQ fisheries are integrated into 
the regulations governing the non-CDQ fisheries for groundfish, 
halibut, and crab. NMFS, the State of Alaska, and the Western Alaska 
Community Development Association administer the CDQ Program.

[[Page 11853]]

C. Description of Proposed Regulatory Amendments

    This proposed action would (1) remove a prohibition against using 
longline pot gear in the Bering Sea during the month of June, and (2) 
amend regulations to allow military reservists and National Guard 
members to temporarily transfer their IFQ if mobilized to active duty.
    The Council made recommendations for regulatory revisions for each 
of these actions in June 2006, as part of a multi-part IFQ regulatory 
amendment package. NMFS subsequently separated the Council's 
comprehensive recommendations into different regulatory amendment 
packages, including this proposed rule.
    NMFS also proposes several administrative changes to amend certain 
modifiers that describe IFQ and CDQ permits in paragraphs (d) and (e) 
of Sec.  679.4. This includes revising terms such as ``original,'' 
``copy,'' and ``valid'' to read ``legible copy.'' This is intended to 
make the descriptors used in association with such permits consistent 
throughout these paragraphs.
    The following sections provide a detailed explanation of the 
regulatory amendments contained in this proposed rule.
Allow Longline Pot Gear to be Used in the Bering Sea Sablefish Fishery 
in June
    This proposed rule would amend regulations in 50 CFR part 679 to 
remove a prohibition against the use of longline pot gear in the Bering 
Sea sablefish fishery during the month of June. Existing regulations 
prohibit deployment of longline pot gear during this month, due to past 
concerns about conflicts between vessel operators that use different 
types of fishing gear. Specifically, Sec.  679.24(c)(4) would be 
revised to remove a June closure for longline pot gear in the Bering 
Sea sablefish fishery.
    The use of longline pot gear in the Bering Sea sablefish fishery 
became an issue in 1991. The nature of longline pot gear and strategies 
used in fishing longline pot gear was once thought to deter fishermen 
from deploying hook-and-line gear on fishing grounds where longline pot 
gear is set. The groundline (to which baited pots are attached) used 
with longline pot gear is heavier and stronger than that used for 
longline hook-and-line gear. If longline pot gear were to be set over 
previously deployed longline hook-and-line gear, the latter could be 
damaged or lost during its retrieval. The Council recommended a 
prohibition against longline pot gear in the Bering Sea subarea to 
prevent the potential preemption of fishing grounds. This was based on 
its concerns about potential conflicts between vessel operators using 
different gear types on common fishing grounds. Final regulations 
prohibiting the use of longline pot gear were published on August 21, 
1992 (57 FR 37906). That rule fully describes the rationale for 
implementing this gear restriction.
    In 1995, the IFQ Program extended the fishing season for halibut 
and sablefish in Federal waters off Alaska to approximately eight 
months. Prior seasons typically consisted of one or two day openings of 
concentrated effort. By allowing the sablefish fleet to spread its 
operations over time, the IFQ Program reduced the possibility of 
congestion and preemption of common fishing grounds. However, during 
the first IFQ season, fishing industry representatives reported to the 
Council that the annual Bering Sea sablefish quota had been 
underharvested due, in part, to fishery interactions with orcas and 
sperm whales.
    Whales are able strip hooked fish from fishing gear, reducing the 
amount of sablefish landed by fishermen using hook-and-line gear. Such 
predation represents undocumented fishing mortality. Even though the 
sablefish quota may be underharvested by fishermen, overall fishing 
mortality could actually be higher than the specified quota, resulting 
in unrecorded harvests. Attempts to deter whales from preying on fish 
caught on hook-and-line gear by various non-lethal means have proven 
unsuccessful. One viable method for reducing whale predation is to 
harvest sablefish with longline pot gear instead of hook-and-line gear. 
This realization led to a reconsideration of the ban on longline pot 
gear in the sablefish fishery. On September 18, 1996, a Bering Sea 
closure to longline pot gear from June 1 through June 30 replaced the 
year-round gear prohibition (61 FR 49076).
    The reintroduction of longline pot gear into the Bering Sea 
fisheries posed less of a concern for fishing grounds preemption in 
1996, compared with 1992 when longline pot gear originally was 
prohibited. Authorizing the use of longline pot gear, with limitations, 
in the Bering Sea directed sablefish fishery allowed fishermen to use 
this gear and reduce interactions with whales. In recommending the 
lifting of the ban on longline pots, the Council expressed concern 
that, despite the decreased likelihood of grounds pre-emption, 
fishermen using traditional hook-and-line gear in relatively small 
boats may be pre-empted from grounds by fishermen in larger boats using 
longline pot gear. Thus, a June closure was retained for the benefit of 
small vessels using hook-and-line gear to fish for sablefish. June was 
chosen for the closure because it generally has fair weather, a safety 
advantage for small vessels.
    In October 2004, a representative for longline pot vessels proposed 
that gear competition between the sablefish longline pot fleet and 
other fisheries had not occurred in June, and asserted that such 
potential conflicts were no longer a valid concern (as described below) 
and that the regulatory prohibition was unnecessary and burdensome. No 
public testimony was received in opposition to this proposal. As a 
result, the Council initiated an analysis of allowing longline pot gear 
during June in both the fixed gear Bering Sea IFQ and CDQ sablefish 
fisheries.
    This proposed action would implement the Council's June 2006 
recommendation to remove the June longline pot gear closure. Doing so 
may provide an opportunity to harvest additional amounts of the annual 
sablefish IFQ and sablefish CDQ allocations. These allocations 
historically have been underharvested. In 2007, 67 percent of the 
Bering Sea sablefish IFQ allocations was harvested, compared with 94 to 
100 percent in the four different Gulf of Alaska sablefish regulatory 
areas. The fixed gear sablefish CDQ fishery caught 79 percent of the 
Bering Sea sablefish fixed gear CDQ allocation that year. On average, 
56 percent of the annual Bering Sea sablefish IFQ allocation was 
harvested during the years 2003 through 2007. Since 2004, pot gear has 
accounted for over half of the annual fixed gear sablefish catch in the 
Bering Sea. While the original June closure was intended to prevent 
conflicts between different gear groups, one of the over-arching 
operational issues in the Bering Sea sablefish fishery in the last 
decade has been predation of hooked sablefish by whales. This in turn 
has led to changes in the predominant gear type used in this fishery to 
pot gear from hook-and-line gear, which may diminish the potential for 
fishing ground conflicts between different gear groups overall, and 
during June in particular.
    This action would address a problem in the IFQ sablefish and CDQ 
sablefish fisheries resulting from a previous Council action. The June 
longline pot gear prohibition in the Bering Sea sablefish fisheries is 
operationally inefficient, with respect to the constraints that are 
placed on fishermen using longline pot gear during the middle of the 
sablefish season. This is of particular concern because longline

[[Page 11854]]

pot gear is increasingly being deployed in the Bering Sea, compared to 
the different mix of gear types deployed during the initial years of 
the IFQ Program. Most gear reported in the pot gear category in the 
Bering Sea is assumed to be longline pots, despite the lack of a unique 
reporting code for this gear type. Single pot and line gear is not used 
much in the Bering Sea sablefish fishery because sea conditions result 
in its loss.
    Because the fixed gear sablefish fishery historically has not 
completely harvested the annual Bering Sea sablefish IFQ and CDQ 
allocations, elimination of the June closure may increase total 
landings and reduce fishing costs. NMFS does not have the information 
necessary to know whether the June longline pot gear prohibition 
results in completely foregone harvesting opportunities and revenue 
during that month, or whether sablefish fishing effort and harvests 
shift to other months of the sablefish fishing season. However, 
operational flexibility and economic efficiency is expected to increase 
for Bering Sea sablefish IFQ and CDQ fishermen should this action be 
approved. Fishermen wishing to use longline pot gear during June would 
benefit from this change by being able to use such gear without a 
mandatory, mid-season, one month stand down. This action could affect 
the 115 Bering Sea IFQ sablefish permit holders and the six CDQ 
entities that received sablefish CDQ in 2007. Industry representatives 
reported to the Council in 2006 that perhaps six longline pot vessels 
may fish this gear type during June if the prohibition is removed. No 
representatives of the hook-and-line sector testified about or have 
otherwise communicated to the Council or NMFS that this proposed change 
would have adverse effects on their sablefish fishing operations. NMFS 
also notes that longline pot gear may be used to fish for other Bering 
Sea groundfish species (such as Pacific cod) during June; issues of 
gear conflicts between Pacific cod longline vessel operators and 
sablefish hook-and-line vessel operators have not been communicated to 
NMFS.
    Adoption of this proposed action would not change the catch 
monitoring and accounting practices in place for the sablefish IFQ and 
sablefish CDQ fisheries. Removing the June closure would mean that 
enforcement personnel would no longer have to monitor whether vessels 
fishing with longline pot gear in June were targeting sablefish, which 
currently is a prohibited activity. Neither the NOAA Office for Law 
Enforcement nor the U.S. Coast Guard have indicated any concerns or 
objections to the removal of this prohibition.
Allow Military Reservists and National Guardsmen to Temporarily 
Transfer Annual IFQ
    This proposed rule would amend IFQ Program regulations to allow 
military reservists and members of the National Guard to temporarily 
transfer their halibut or sablefish IFQ to other eligible IFQ 
recipients, should they be mobilized to active duty. This proposed 
change is intended to allow reservists and guardsmen the potential to 
gain some economic benefit from their QS, should they be unavailable to 
fish their IFQ during a given year due to active military duty or 
deployment. Specifically, this proposed rule would add a new paragraph 
to Sec.  679.41 to establish the conditions and criteria for allowing 
the temporary transfer of annual IFQ issued to reservists and National 
Guardsmen to other eligible IFQ recipients.
    Existing QS and IFQ transfer regulations generally do not allow 
temporary transfers (leasing) of catcher vessel IFQ. Such restrictions 
are intended to ensure that QS owners also fish the IFQ associated with 
their quota shares, rather than leasing or otherwise assigning it to 
other parties to fish on their behalf. Thus, mobilized reservists and 
guardsmen (who are not otherwise authorized to hire a master to harvest 
their IFQ) may not temporarily transfer their annual IFQ so that it may 
be fished by another party. The inability to temporarily transfer IFQs 
during a military mobilization could constitute an economic hardship to 
affected service members and their dependents.
    The Council advised NMFS that it wished to address a long-term 
solution to situations where QS holders in the military reserves or 
National Guard are mobilized without any recourse except to leave their 
annual IFQ allocation unharvested or to sell their quota share. This 
element was incorporated into the omnibus regulatory amendment that the 
Council was developing for other IFQ-related actions. The analysis for 
these regulatory amendments was released for public review in December 
2005, followed by final Council action in June 2006, as described 
previously.
    This proposed rule would implement the Council's recommendation to 
allow halibut and sablefish QS holders to request temporary IFQ 
transfers, if the applicant meets specified requirements related to 
eligibility and evidence of military mobilization or activation. An 
application and appeals process would be added to 50 CFR part 679. This 
proposed regulatory change would not jeopardize the Council's policy of 
having an owner-operator IFQ fleet. This alternative may further 
promote stable, owner-operated businesses in the halibut and sablefish 
IFQ fisheries. The Council modeled the policy elements associated with 
temporary military transfers (TMT) on those associated with emergency 
medical IFQ transfers.
    This type of transfer would be limited to guardsmen and reservists 
that were deemed eligible to make such transfers, based on eligibility 
criteria established by NMFS. Such criteria would include evidence of 
active duty military service that would preclude the QS holder from 
fishing their IFQ during a given time period. A transfer would be 
temporary because it would be restricted in duration to a given fishing 
year. Qualified applicants would be required to request a TMT annually, 
even if the length of their deployment or mobilization exceeded one 
year.
    The recipient of IFQ transferred via a TMT would presumably 
compensate the QS holder for the transferred IFQ, thus allowing QS 
holders to avoid some of the economic loss associated with their 
inability to fish their IFQ in a given year. This arrangement would 
benefit the mobilized QS holder and the temporary recipient of the IFQ. 
It could also result in a small increase in the use of the Halibut and 
Sablefish IFQ Program allocations compared with that under the status 
quo. The active use of IFQ that would otherwise be idled due to a 
guardsman or reservist's mobilization also would promote economic 
activity among fishing support industry sectors, and provide structural 
stability to the Council's ``owner-on-board'' policy by allowing 
guardsmen and reservists to retain their QS and resume IFQ fishing 
following a military deployment.
    The general benefits associated with TMTs include (1) providing 
operational and economic flexibility to fishermen that are subject to 
valid military orders; (2) providing an income stream to such fishermen 
that may sustain them economically and allow their future participation 
in the IFQ fisheries; (3) providing an incremental increase in the 
amount of halibut and sablefish delivered to seafood processors; (4) 
sustaining demand for services and supplies from fishing industry 
support sectors; (5) ensuring a continued supply of fisheries products 
derived from the IFQ fishery to consumers; and (6) ensuring that any 
associated jobs, value-added production, tax revenues, and other 
benefits attributable to the economic activity made possible by the 
temporary transfer of otherwise inactive IFQ are sustained.

[[Page 11855]]

    The application process for a military transfer would be similar to 
existing transfer applications under the IFQ Program. The application 
would consist of a form provided by NMFS that also describes the 
requirements necessary to receive a temporary military transfer. 
Information collected on these applications would include basic 
identifying information about the proposed transferor and transferee, 
documentation of active duty military service, as well as identifying 
characteristics of the IFQ being transferred. If NMFS denies an 
application for a TMT, the applicant may appeal the denial according to 
existing appeal procedures at Sec.  679.43.
Administrative Changes
    This proposed rule would amend certain modifiers (such as 
``original,'' ``copy,'' and ``valid'') that are used to describe some 
of the different IFQ and CDQ permits that are required in regulations 
at Sec.  679.4(d) and (e). These paragraphs are associated with halibut 
IFQ and sablefish IFQ permits, and halibut CDQ permits, respectively. 
Each of these paragraphs describes the different types of permits 
required to participate in the IFQ and CDQ fisheries, the activities 
authorized by different permit types, and other conditions of use, 
inspection, and validity. These two paragraphs were amended on August 
9, 2007 (72 FR 44795) to replace the obsolete terms ``IFQ card'' and 
``CDQ card'' with ``IFQ hired master permit'' and ``CDQ hired master 
permit,'' respectively.
    This proposed rule would remove the word ``original'' from the 
description of IFQ hired master permits in paragraphs Sec.  
679.4(d)(2)(ii) and Sec.  679.4(d)(6)(i)(B). This word would be 
replaced by the term ``legible copy.'' Regulations at Sec.  
679.4(d)(1)(ii) currently require that an ``original IFQ hired master 
permit'' must be on board a vessel that harvests halibut IFQ or 
sablefish IFQ. NMFS intended to change ``original'' to ``legible copy'' 
when it revised this paragraph to replace the term ``IFQ card'' with 
``IFQ hired master permit,'' as described previously. However, the 
deletion of the word ``original'' was inadvertently omitted. The 
``original on board'' requirement is a holdover from a previously 
removed requirement for IFQ fishermen to have their original, plastic 
IFQ Landing Card onboard the harvesting vessel.
    Requiring fishermen to possess an original IFQ hired master permit 
currently is unnecessary for administrative or enforcement purposes. 
There are no ready means to distinguish an original hired master permit 
from a high quality copy. Additionally, NMFS notes that the time 
necessary to mail or otherwise convey an original IFQ hired master 
permit to a recipient is often lengthy, given the remote location of 
many of the Alaska communities to which such permits are sent. Allowing 
a copy of an IFQ hired master permit to be onboard a vessel would 
enhance the speed and efficiency of transmitting such permits to IFQ 
hired masters via facsimile or other electronic formats.
    Furthermore, this proposed rule would make several other changes to 
the descriptive language associated with IFQ permits and CDQ hired 
master permits. The word ``copy'' associated with IFQ permits would be 
replaced with the term ``legible copy'' in paragraphs Sec.  
679.4(d)(6)(i)(A) and (B), as well as Sec.  679.4(e)(2). The word 
``valid'' associated with CDQ hired master permits in Sec.  679.4(e)(3) 
would be replaced with the term ``legible copy.'' This would provide 
clarity and consistency for how IFQ permits and CDQ permits are 
described in Sec.  679.4(d) and (e) with respect to the need for copies 
of permits to be legible.
    Finally, the proposed rule would replace the term ``without a CDQ 
card'' with ``without a CDQ hired master permit'' in a prohibition at 
Sec.  679.7(f)(6)(iii). As described previously, recent regulatory 
revisions to 50 CFR part 679 replaced the term ``CDQ card'' with the 
term ``CDQ hired master permit.'' This particular paragraph was 
inadvertently omitted from those revisions; this proposed rule would 
correct that omission.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    NMFS is not aware of any other Federal rules that would duplicate, 
overlap, or conflict with this action.
    An initial regulatory flexibility analysis (IRFA) was prepared for 
the actions encompassed by this proposed rule, as required by section 
603 of the Regulatory Flexibility Act (RFA). The IRFA describes the 
economic impact that the proposed action, 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 
description of each independent action, why it is being considered, and 
the legal basis for it are presented above in the preamble to this 
rule. A summary of the remainder of the IRFA follows. A copy of this 
analysis is available from NMFS (see ADDRESSES).
    The objectives of this proposed rule are two-fold. First, it would 
address the potential economic inefficiencies created by maintaining a 
mid-season gear closure by allowing longline pot gear to be used to 
fish for sablefish in the Bering Sea during the month of June. Second, 
it would allow temporary transfers of IFQ for a specific class of 
halibut and sablefish QS holders: military reservists and National 
Guardsmen. This potentially would allow such QS owners to avoid the 
economic hardship that may be associated with not being able to harvest 
their annual IFQ if they were mobilized to active duty.

Allow Longline Pot Gear to be Used in the Bering Sea Sablefish Fishery 
in June

    Two different classes of small entities were identified in the IRFA 
prepared for the proposed action to remove the longline pot gear 
restriction in the Bering Sea during June. The first includes holders 
of Bering Sea sablefish QS. This action may directly affect 
approximately 115 sablefish QS holders (as of 2006) in the Bering Sea 
regulatory area. The 2006 ex-vessel value of the sablefish IFQ 
harvested in the Bering Sea was approximately $4 million. Based on 
available data, and more general information concerning the probable 
economic activity of vessels in these IFQ fisheries, no vessel 
operation subject to the June gear closure restrictions could have been 
used to land more than $4 million in combined gross receipts in 2006 
(the maximum gross revenue threshold for a ``small'' catcher vessel). 
Therefore, all sablefish QS holders who would be directly regulated by 
this proposed action are assumed to be ``small entities'' for purposes 
of the IRFA. At present, NMFS does not have sufficient ownership and 
affiliation information to determine precisely the number of ``small'' 
entities in the IFQ Program, the subset of Bering Sea sablefish QS 
holders, or the number of such small entities that could benefit from 
the proposed removal of a regulatory restriction.
    The second class of small entities that would be directly regulated 
by this proposed action includes the six CDQ groups that receive 
allocations of Bering Sea sablefish CDQ. CDQ groups are non-profit 
corporations that manage the fisheries allocations and other business 
matters for communities participating in the CDQ Program. Each of these 
groups is organized as a not-for-profit entity

[[Page 11856]]

and none is dominant in its field; consequently, each is a ``small 
entity'' under the RFA.
    An unknown number of vessel operations may choose to use longline 
pot gear to fish for sablefish in June if the longline pot gear 
prohibition is removed from regulation. Testimony from participants in 
this fishery suggests that approximately six vessels may participate. 
Such vessels may participate in either the IFQ or CDQ sablefish 
fisheries during the sablefish fishing season. These vessels also may 
concurrently harvest IFQ and CDQ allocations on the same fishing trip.
    The IRFA prepared for this proposed action examined two 
alternatives. Alternative 1, status quo, would maintain the June 
closure for longline pot gear for the fixed gear sablefish fishery in 
the Bering Sea. As such, it would continue to impose adverse economic 
impacts on the small entities currently participating in this fishery, 
without offsetting benefits. Alternative 2, the preferred alternative, 
would amend regulations to remove the June closure, per the request of 
participants in the Bering Sea sablefish fishery. This alternative 
would result in a regulatory change that would reduce economic and 
operational burdens on those small entities that use longline pot gear 
in the Bering Sea sablefish fisheries. The sablefish IFQ and CDQ season 
begins in March and ends in November. Entities that begin harvesting 
sablefish IFQ or CDQ prior to June, but that do not catch all of their 
annual sablefish allocation during this time must cease fishing for 
sablefish with longline pot gear during June, prior to resuming 
fishing. A June stand-down presumably requires additional costs to 
entities, such as removing longline pot gear from the fishing grounds, 
switching to another fishery or to another gear type to continue 
fishing for sablefish, as well as transit costs to and from fishing 
grounds. NMFS does not have sufficient cost information to approximate 
the actual costs associated with the effects of the June closure on 
entities involved in the longline pot gear for sablefish.
    No adverse economic impacts on other user groups, including 
operators of hook-and-line vessels that also are small entities, were 
identified. Such entities fish concurrently with longline pot gear 
vessels during the remainder of the IFQ season without reported gear or 
fishing grounds conflicts. NMFS is not aware of any additional 
alternatives to those considered that would accomplish the objectives 
of the Magnuson-Stevens Act and other applicable statutes and that 
would minimize the adverse economic impact of the proposed action on 
small entities. The objective for this action was to relieve an 
operational restriction, and associated adverse economic effects, by 
eliminating a one month fishery closure that is specific to longline 
pot gear vessels. The original impetus for the June longline pot gear 
closure has been superceded by ongoing changes in the characteristics 
of the sablefish IFQ and CDQ fisheries; specifically, the increased use 
of longline pot gear to prosecute this fishery and the decreased use of 
hook-and-line gear.

Allow Military Reservists and National Guard Members to Temporarily 
Transfer Annual IFQ

    This proposed action would amend regulations in 50 CFR part 679 
that govern quota transfers conducted under the Pacific Halibut and 
Sablefish IFQ Program. Existing regulations allow permanent QS and IFQ 
transfers, but preclude temporary transfers of IFQ except for limited 
circumstances.
    At present, NMFS does not have sufficient ownership and affiliation 
information to determine precisely the number of ``small'' entities in 
the IFQ program that could be affected by this action. The number of 
military reservists or guardsmen that hold the category of QS that may 
not be legally fished by a hired master under current rules cannot be 
determined with available information. The number of these ``citizen 
soldiers'' who hold such restricted QS and who may be mobilized to 
active duty status during their fishing career cannot be estimated. 
Given these uncertainties, it is not possible to know how many QS 
holders could be expected to request a temporary military transfer of 
IFQs, if the proposed rule were adopted. Thus, the IRFA prepared for 
this action assumes that all halibut and sablefish QS holders are small 
entities, for RFA purposes. Based on this assumption, the proposed 
action has the potential to directly regulate any of the 3,467 small 
entities (as of 2006) that hold halibut QS and sablefish QS.
    The IRFA prepared for this action examined two alternatives. Under 
Alternative 1, mobilized military reservists or guardsmen would not be 
able to temporarily transfer their IFQ. This could impose a financial 
burden on such QS holders because they would have to forego the 
economic benefit that could accrue from leasing their IFQ to other 
fishermen. It is not possible to quantify what such foregone benefits 
could be, absent information about how many reservists and guardsmen 
hold QS, whether and when such persons could be mobilized, and the 
amount of annual IFQ that could be left unharvested due to a QS holder 
being unable to catch their IFQ. Based on the standard prices used to 
assess IFQ fees (for all ports with IFQ landings, as of November 30, 
2007), halibut was worth $4.37 per pound and sablefish was worth $2.95 
per pound. This approximates the value of each pound of halibut and 
sablefish IFQ to those QS holders whose harvesting operations could be 
affected by being mobilized ordered to active duty. Alternative 2, the 
preferred alternative, would amend regulations to explicitly allow 
temporary IFQ transfers for mobilized guardsmen and reservists. This 
would decrease the likelihood that such QS holder would suffer economic 
hardship from being unable to catch his or her halibut or sablefish 
IFQ. Furthermore, Alternative 2 would minimize adverse impacts that may 
be attributable to idled IFQ that could accrue to processors, fishery 
dependent communities, and other fishing support businesses. However, 
absent information about the number of QS holders that could be 
affected by this change, as well as the amount of QS and corresponding 
IFQ that could be left unharvested, NMFS is unable to provide an 
estimate of such impacts. NMFS is not aware of any additional 
alternatives to those considered that would accomplish the objectives 
of the Halibut Act and the Magnuson-Stevens Act and other applicable 
statutes that would minimize the economic impact of the proposed rule 
on small entities. The objective of this action is to relax the policy 
of requiring halibut and sablefish QS holders to be onboard a vessel 
when associated IFQ is caught and landed for a specific class of QS 
holders.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). These requirements have 
been submitted under OMB Control No. 0648-0569. Public reporting burden 
for Application for Temporary Military Transfer of IFQ is estimated to 
average two hours per response and four hours per response for appeal 
of a denied application, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility;

[[Page 11857]]

the accuracy of the burden estimate; ways to enhance the quality, 
utility, and clarity of the information to be collected; and ways to 
minimize the burden of the collection of information, including through 
the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to NMFS Alaska Region at the ADDRESSES 
above, and e-mail to [email protected], or fax to (202) 395-
7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: February 28, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, 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.; 
Pub. L. 108-447.
    2. In Sec.  679.4, revise paragraphs (d)(2)(ii), (d)(6)(i)(A), 
(d)(6)(i)(B), (e)(2), and (e)(3) to read as follows:


Sec.  679.4  Permits.

* * * * *
    (d) * * *
    (2) * * *
    (ii) A legible copy of an IFQ hired master permit issued to an 
eligible individual in accordance with Sec.  679.42(i) and (j) by the 
Regional Administrator must be onboard the vessel that harvests IFQ 
halibut or IFQ sablefish at all times that such fish are retained on 
board by a hired master. Except as specified in Sec.  679.42(d), an 
individual that is issued an IFQ hired master permit must remain on 
board the vessel used to harvest IFQ halibut or IFQ sablefish with that 
IFQ hired master permit during the IFQ fishing trip and at the landing 
site during all IFQ landings.
* * * * *
    (6) * * *
    (i) * * *
    (A) The IFQ permit holder must present a legible copy of the IFQ 
permit for inspection on request of any authorized officer or 
Registered Buyer receiving IFQ species.
    (B) The IFQ hired master permit holder must present a legible copy 
of the IFQ permit and a legible copy of a the IFQ hired master permit 
for inspection on request of any authorized officer or Registered Buyer 
receiving IFQ species.
* * * * *
    (e) * * *
    (2) Halibut CDQ permit. The CDQ group must obtain a halibut CDQ 
permit issued by the Regional Administrator. The vessel operator must 
have a legible copy of the halibut CDQ permit on any fishing vessel 
operated by, or for, a CDQ group that will have halibut CDQ onboard and 
must make the permit available for inspection by an authorized officer. 
The halibut CDQ permit is non-transferable and is issued annually until 
revoked, suspended, or modified.
    (3) Halibut CDQ hired master permits. An individual must have 
onboard the vessel a legible copy of the halibut CDQ hired master 
permit issued by the Regional Administrator before landing any CDQ 
halibut. Each halibut CDQ hired master permit will identify a CDQ 
permit number and the individual authorized by the CDQ group to land 
halibut for debit against the CDQ group's halibut CDQ.
* * * * *
    3. In Sec.  679.7, revise paragraph (f)(6)(iii) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (f) * * *
    (6) * * *
    (iii) Hired master, CDQ halibut. Make a CDQ halibut landing without 
a CDQ hired master permit listing the name of the hired master.
* * * * *
    4. In Sec.  679.24, revise paragraph (c)(4) to read as follows:


Sec.  679.24  Gear limitations.

* * * * *
    (c) * * *
    (4) BSAI. Operators of vessels using gear types other than hook-
and-line, longline pot, pot-and-line, or trawl gear in the BSAI must 
treat sablefish as a prohibited species as provided by Sec.  679.21(b).
* * * * *
    5. In Sec.  679.41, revise paragraph (g)(4) and add paragraph (m) 
to read as follows:


Sec.  679.41  Transfer of quota shares and IFQ.

* * * * *
    (g) * * *
    (4) The Regional Administrator will not approve an Application for 
Transfer of QS assigned to vessel categories B, C, or D subject to a 
lease or any other condition of repossession or resale by the person 
transferring QS, except as provided in paragraphs (h) and (m) of this 
section, or by court order, operation of law, or as part of a security 
agreement. The Regional Administrator may request a copy of the sales 
contract or other terms and conditions of transfer between two persons 
as supplementary information to the transfer application.
* * * * *
    (m) Temporary military transfers. In the event of a military 
mobilization or order to report for military service affecting a QS 
holder that prevents him or her from being able to participate in the 
halibut or sablefish IFQ fisheries, the Regional Administrator may 
approve a temporary military transfer for the IFQ derived from the QS 
held by a QS holder affected by the military mobilization.
    (1) General. A temporary military transfer will be approved if the 
QS holder demonstrates that he or she is unable to participate in the 
IFQ fishery for which he or she holds QS because of a military 
mobilization, order to report for military service, or active duty 
military service.
    (2) Eligibility. To be eligible to receive a temporary military 
transfer, a QS holder must:
    (i) Be a member of a branch of the National Guard or a member of a 
reserve component;
    (ii) Possess one or more catcher vessel IFQ permits;
    (iii) Not qualify for a hired master exception under Sec.  
679.42(i)(1); and
    (iv) Be in active duty military service as that term is defined at 
10 U.S.C. 101(d)(1), be under a call to active service authorized by 
the President or the Secretary for a period of more than 30 consecutive 
days under 32 U.S.C. 502(f), or in the case of a member of a reserve 
component, have been ordered to report for military service beginning 
on the date of the member's receipt of the order and ending on the date 
on which the member reports for active duty military service.
    (3) Application. A QS holder may apply for a temporary military 
transfer by submitting a temporary military transfer application to the 
Alaska Region, NMFS. NMFS will transfer, upon approval of the 
application, the applicable IFQ from the applicant (transferor) to the 
recipient (transferee).

[[Page 11858]]

A temporary military transfer application is available at http://www.fakr.noaa.gov or by calling 1-800-304-4846. A complete application 
must include all of the following:
    (i) The transferor's identity including his or her full name, NMFS 
person ID, date of birth, permanent business mailing address, business 
telephone and fax numbers, and e-mail address (if any). A temporary 
mailing address may be provided, if appropriate.
    (ii) The transferee's identity including his or her full name, NMFS 
person ID, date of birth, permanent business mailing address, business 
telephone and fax numbers, and e-mail address (if any). A temporary 
mailing address may be provided, if appropriate.
    (iii) The identification characteristics of the IFQ including 
whether the transfer is for halibut or sablefish IFQ, IFQ regulatory 
area, number of units, range of serial numbers for IFQ to be 
transferred, actual number of IFQ pounds, transferor (seller) IFQ 
permit number, and fishing year.
    (iv) Documentation of active military mobilization or deployment. 
This documentation must include the following:
    (A) A copy of official documentation such as valid military orders 
or call that direct the transferor to report to active duty military 
service, to mobilize for a military deployment, or to report to active 
service.
    (B) A concise description of the nature of the military deployment 
or active duty military service, including verification that the 
applicant is unable to participate in the IFQ fishery for which he or 
she holds IFQ permits during the IFQ season because of his/her active 
duty military service.
    (v) The signatures and printed names of the transferor and 
transferee, and date.
    (vi) The signature, seal, and commission expiration of a notary 
public.
    (4) Restrictions. (i) A temporary military transfer shall be valid 
only during the calendar year for which the associated IFQ is issued.
    (ii) A temporary military transfer will be issued only for the IFQ 
derived from the QS held by the applicant.
    (5) Temporary military transfer evaluations and appeals--(i) 
Initial evaluation. The Regional Administrator will evaluate an 
application for a temporary military transfer submitted in accordance 
with paragraphs (c)(1) through (c)(9) of this section. An applicant who 
fails to submit the information specified in the application for a 
temporary military transfer will be provided a reasonable opportunity 
to submit the specified information or submit a revised application.
    (ii) Initial administrative determination (IAD). The Regional 
Administrator will prepare and send an IAD to the applicant if the 
Regional Administrator determines that the application provided by the 
applicant is deficient or if the applicant fails to submit the 
specified information or a revised application. The IAD will indicate 
the deficiencies in the application, including any deficiencies with 
the information on the revised application. An applicant who receives 
an IAD may appeal under the appeals procedures set out at Sec.  679.43.
[FR Doc. E8-4247 Filed 3-4-08; 8:45 am]
BILLING CODE 3510-22-S