[Federal Register Volume 73, Number 97 (Monday, May 19, 2008)]
[Rules and Regulations]
[Pages 28733-28738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11183]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070717351-8507-02]
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: Final rule.

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SUMMARY: NMFS issues a final rule to modify 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 amends current regulations to allow 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 adds 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 final 
rule 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 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: Effective June 18, 2008, except the amendment to Sec.  
679.24(c)(4), which is effective May 19, 2008.

ADDRESSES: Copies of the Regulatory Impact Review (RIR) and Final 
Regulatory Flexibility Analysis (FRFA) prepared for this action are 
available by mail from NMFS, Alaska Region, P. O. Box 21668, Juneau, AK 
99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, 
Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; or via 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 
final 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 FMP. The FMP was prepared by the North Pacific 
Fishery Management Council (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 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 (73 FR 12280; 
March 7, 2008). Federal regulations governing the halibut fisheries in 
the BSAI management area appear at 50 CFR parts 300 and 679.

Background and Need for Action

    The background and need for this action were described in detail in 
the preamble to the proposed rule published in the Federal Register on 
March 5, 2008 (73 FR 11851). The proposed rule's comment period ended 
April 4, 2008. NMFS received two responses that contained four unique 
comments. These comments are summarized under ``Response to Comments.''
    In summary, this final rule removes a regulation that prohibits 
using longline pot gear in the Bering Sea during the month of June and 
amends regulations to allow military reservists and National Guard 
members to temporarily transfer their IFQ if mobilized to active duty. 
This action also makes 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.'' These changes are 
intended to make the descriptors used in association with such permits 
consistent throughout these paragraphs.

Description of Regulatory Amendments

    The following sections explain in detail the regulatory amendments 
contained in this final rule.
Allow Longline Pot Gear to be Used in the Bering Sea Sablefish Fishery 
in June
    This rule will 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) is 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 with longline pot gear were 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 is set over 
previously deployed longline hook-and-line gear, the weaker hook-and-
line gear could be damaged or lost

[[Page 28734]]

while being retrieved. The Council recommended a prohibition against 
longline pot gear in the Bering Sea subarea to avoid potential 
conflicts between vessel operators using different gear types on common 
fishing grounds. Final regulations prohibiting the use of longline pot 
gear and the rationale for implementing this gear restriction were 
published on August 21, 1992 (57 FR 37906).
    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 likelihood of 
congestion and preemption of common fishing grounds.
    During the first IFQ season, fishing industry representatives 
reported to the Council that the annual Bering Sea sablefish quota had 
been under-harvested 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. 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 longline pot 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 than in 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. When recommending the removal 
of the ban on longline pots, the Council expressed concern that, 
despite the decreased likelihood of grounds preemption, fishermen using 
traditional hook-and-line gear in relatively small boats may be 
preempted 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 fishermen 
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 action will implement the Council's June 2006 recommendation 
to remove the June longline pot gear closure. Doing so may provide an 
opportunity for longline pot fishermen to harvest additional amounts of 
the annual sablefish IFQ and sablefish CDQ allocations. These 
allocations historically have not been fully harvested. In 2007, 67 
percent of the Bering Sea sablefish IFQ allocation 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. The 
existing June longline pot gear prohibition in the Bering Sea sablefish 
fisheries creates operational inefficiencies because of the constraints 
that are placed on vessel operators using longline pot gear during the 
middle of the sablefish season. Allowing this gear type to be used in 
June may provide additional harvesting opportunities for participants 
in the sablefish fishery.
    This action will not change the catch monitoring and accounting 
practices in place for the sablefish IFQ and sablefish CDQ fisheries. 
Removing the June closure will mean that enforcement personnel would no 
longer have to monitor whether vessels fishing with longline pot gear 
in June are targeting sablefish, which was 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 action will 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 change is intended to allow 
reservists and guardsmen the potential to gain some economic benefit 
from their quota share (QS), should they be unavailable to fish their 
IFQ during a given year due to active military duty or deployment. 
Specifically, this rule will 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 holders also fish the IFQ associated 
with their QS, rather than leasing or otherwise assigning their IFQ 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.
    This action will 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. This regulatory change 
does 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 will be limited to guardsmen and reservists 
that are deemed eligible to make such transfers, based on eligibility 
criteria established by this final rule. Such criteria includes 
evidence of active duty military service that precludes the QS holder 
from fishing his or her IFQ during a given time period. A transfer 
would be temporary and restricted 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 application process for a TMT will be similar to existing 
transfer applications under the IFQ Program. The application, provided 
by NMFS, will describe the requirements

[[Page 28735]]

necessary to receive a TMT. Information collected on these applications 
will include basic identifying information about the proposed 
transferor and transferee, documentation of the transferor's 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 decision by following the existing appeal 
procedures at Sec.  679.43.
Administrative Changes
    This action amends certain terms (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 rule removes 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 will be replaced by the term ``legible 
copy.'' Regulations at Sec.  679.4(d)(1)(ii) previously required that 
an ``original IFQ hired master permit'' must be onboard a vessel used 
to harvest 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 requirement to have the original permit 
onboard is a holdover from a requirement for IFQ fishermen to have 
their original, plastic IFQ landing card (similar to a credit or debit 
card) onboard the harvesting vessel. This requirement has since been 
revised.
    Requiring fishermen to possess an original IFQ hired master permit 
currently is unnecessary for administrative or enforcement purposes. No 
ready means exist 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 will enhance the 
speed and efficiency of transmitting such permits to IFQ hired masters 
via facsimile or other electronic formats.
    Furthermore, this action makes several other changes to the 
descriptive language associated with IFQ permits and CDQ hired master 
permits. The word ``copy'' associated with IFQ permits is 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) is replaced with the term 
``legible copy.'' This clarifies and makes consistent 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, this action replaces the term ``without a CDQ card'' with 
``without a CDQ hired master permit'' in a prohibition at Sec.  
679.7(f)(6)(iii). Recent regulatory revisions to 50 CFR part 679 
replaced the term ``CDQ card'' with the term ``CDQ hired master 
permit.'' However, due to an inadvertent error, this change was not 
made to Sec.  679.7(f)(6)(iii); this final rule corrects that error.

Response to Comments

    Comment 1: The use of longline pot gear should be prohibited in the 
Bering Sea at all times, not just during June.
    Response: This final rule implements a revision to a seasonal gear 
restriction applicable to the Bering Sea sablefish IFQ and CDQ 
fisheries. Longline pot gear is one of several types of fixed gear that 
are legally permissible to use to harvest various groundfish species in 
the Bering Sea. This action will remove a one month closure 
specifically applicable to the Bering Sea sablefish fisheries. 
Prohibiting the use of longline pot gear at all times in the Bering Sea 
is outside of the scope of this action.
    Comment 2: Members of the National Guard or military personnel 
should not be allowed to give away their IFQ to anyone else. IFQ 
holders who do not use their IFQ should lose it.
    Response: NMFS disagrees. This final rule implements regulations to 
allow military reservists and National Guard members to temporarily 
transfer their IFQ to other eligible IFQ fishermen. This is intended to 
allow such QS holders to avoid the economic hardship associated with 
being unable to catch their IFQ. QS holders already may permanently 
transfer their QS and associated IFQ to other parties. Such transfers 
are an integral part of the halibut and sablefish IFQ program, and 
allow fishing privileges to move between fishermen based on market 
forces.
    Comment 3: The ability to purchase and process Bering Sea sablefish 
IFQ and CDQ during June is operationally important to small seafood 
processors in the Aleutian Islands.
    Response: Support is noted.
    Comment 4: Given their service and sacrifice to the Nation, it is 
more than appropriate to allow military reservists and members of the 
National Guard the flexibility to either use or transfer their IFQ.
    Response: Support is noted.

Changes from the Proposed Rule

    This final rule revises Sec.  679.41(m)(3)(iii) to clarify that the 
range of serial numbers that must be included with a TMT application 
are the serial numbers associated with the QS from which the IFQ being 
transferred are derived. QS represents the percentage of an annual 
catch limit that a QS holder may catch. It is used to calculate the 
annual amount of halibut or sablefish IFQ that is allocated to a QS 
holder. There are no serial numbers associated with IFQ.

Classification

    The Administrator, Alaska Region, NMFS determined that this final 
rule is necessary for the conservation and management of the groundfish 
fisheries, and that it is consistent with the Magnuson-Stevens Act and 
other applicable laws.
    This final 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.
    Because this rule relieves a restriction on using longline pot gear 
to fish for sablefish IFQ and CDQ during June, the revision to Sec.  
679.24(c)(4) is not subject to the 30-day delayed effectiveness 
provision of the Administrative Procedures Act pursuant to 5 U.S.C. 
553(d)(1). Existing regulations prohibit the use of longline pot gear 
in the Bering Sea sablefish fishery during June. This restriction 
originally was intended to protect vessel operators using hook-and-line 
gear from potential conflicts on the fishing grounds with operators 
using longline pot gear. Changes in the operational characteristics of 
the Bering Sea sablefish fishery have rendered this protection measure 
obsolete. The sablefish IFQ season lasts approximately eight months, 
opening in mid-March and closing in mid-November. Requiring vessel 
operators using longline pot gear to stand down from

[[Page 28736]]

fishing for sablefish with this gear type for one month during the 
middle of the fishing season is operationally inefficient and 
economically disadvantageous. The remainder of the changes in this rule 
will be effective 30 days after publication of the rule in the Federal 
Register.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA, NMFS's responses to those comments, and a summary 
of the analyses completed to support the action. A copy of the FRFA is 
available from NMFS (see ADDRESSES). A description of the action, why 
it is being considered, and the legal basis for this action are 
presented in the preamble to this rule.
    NMFS received four public comments about the proposed rule prepared 
for this action. This includes one comment apiece in support, and one 
comment apiece in opposition, of the two primary actions that will be 
implemented by this rule. Both of the comments expressing opposition 
are outside of the scope of this action; none of the comments contained 
specific comments about the economic effects of this action. A summary 
of the remainder of the FRFA follows.

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 FRFA 
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 action are assumed to be small 
entities for purposes of the Regulatory Flexibility Act (RFA). 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 removal of a 
regulatory restriction.
    The second class of small entities that would be directly regulated 
by this 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 and none is dominant in its field; 
consequently, each is a small entity under the RFA.
    Testimony from participants in this fishery suggests that 
approximately six vessels may choose to use longline pot gear to fish 
for sablefish in June if the longline pot gear prohibition is removed 
from regulation. 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 FRFA prepared for this 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 fishery 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 this 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 superseded 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 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 under 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 final rule were adopted. Thus, the FRFA prepared for this 
action assumes that all halibut and sablefish QS holders are small 
entities, for RFA purposes. Based on this assumption, this 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 FRFA prepared for this action examined two alternatives. Under 
Alternative 1, mobilized military reservists or guardsmen would not be 
able to temporarily transfer their IFQ.

[[Page 28737]]

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's inability 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 or ordered 
to active duty.
    Alternative 2, the preferred alternative, would amend regulations 
to allow temporary IFQ transfers for mobilized guardsmen and 
reservists, decreasing the likelihood that such QS holders 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 the total estimate of the impacts of this rule. 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 this action 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.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules.
    The preamble to this final rule serves as the small entity 
compliance guide. This action does not require any additional 
compliance from small entities that is not described in the preamble. 
Copies of this final rule are available from NMFS (see ADDRESSES) and 
at the following website: http://www.fakr.noaa.gov.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 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 per response, including the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 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: May 13, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 679 is amended 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.; 
Pub. L. 108-447.

0
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 
onboard by a hired master. Except as specified in Sec.  679.42(d), an 
individual that is issued an IFQ hired master permit must remain 
onboard 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 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.
* * * * *

0
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

[[Page 28738]]

hired master permit listing the name of the hired master.
* * * * *

0
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).
* * * * *

0
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 meet all of the following requirements:
    (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);
    (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). 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 QS 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. E8-11183 Filed 5-16-08; 8:45 am]
BILLING CODE 3510-22-S