[Federal Register Volume 74, Number 136 (Friday, July 17, 2009)]
[Rules and Regulations]
[Pages 34701-34703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17088]



[[Page 34701]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 071102641-91087-04]
RIN 0648-AR06


Fisheries of the Exclusive Economic Zone Off Alaska; Revision of 
Single Geographic Location Requirement in the Bering Sea Subarea; 
Amendments 62/62

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 increase the number of times per 
year that a stationary floating processor (SFP) that is qualified under 
the American Fisheries Act (AFA) may move within State of Alaska waters 
in the Bering Sea (BS) subarea to process pollock harvested in the BS 
subarea directed pollock fishery. This action also requires AFA SFPs to 
process all Gulf of Alaska (GOA) pollock and GOA Pacific cod where they 
processed these species in 2002. This action is necessary to increase 
operational flexibility for AFA SFPs that process pollock caught in the 
BS subarea directed fishery while continuing to limit the competitive 
advantage of AFA SFPs in the GOA pollock and GOA Pacific cod fisheries. 
This final rule also is notification to the public of the approval of 
Amendment 62 to the Fishery Management Plan for Groundfish of the 
Bering Sea and Aleutian Islands Management Area (BSAI FMP) and the 
approval of Amendment 62 to the Fishery Management Plan for Groundfish 
of the Gulf of Alaska (GOA FMP). Amendments 62/62 revise the BSAI FMP 
description of the Catcher Vessel Operational Area and remove the 
obsolete sunset date for inshore/offshore sector allocations of pollock 
and Pacific cod in the GOA FMP. These actions are intended to promote 
the goals and objectives of the Magnuson-Stevens Fishery Conservation 
and Management Act, the GOA FMP, the BSAI FMP, and other applicable 
laws.

DATES: Effective August 17, 2009.
    The uncodified fishery management plan amendments (Amendments 62/
62) became effective July 1, 2009, and are summarized in the preamble 
of this rule.

ADDRESSES: Electronic copies of the Environmental Assessment/Regulatory 
Impact Review (EA/RIR) for this action may be obtained from http://www.regulations.gov or from the Alaska Region website at http://www.alaskafisheries.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 by mail to 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, Alaska; and by e-mail to [email protected], or fax to 
202-395-7285.

FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone of the Bering Sea and Aleutian Islands 
Management Area (BSAI) and the GOA under the Fishery Management Plans 
(FMPs) for groundfish in the respective areas. The North Pacific 
Fishery Management Council (Council) prepared, and NMFS approved, the 
FMPs under the authority of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. 
Regulations governing U.S. fisheries and implementing the FMPs appear 
at 50 CFR parts 600 and 679.

Background and Need for Action

    In June 2002, the Council adopted Amendments 62/62 to revise 
obsolete or inconsistent inshore/offshore language in the BSAI and GOA 
FMPs to make them consistent with the AFA. A combination of 
circumstances delayed the submission of these amendments for 
Secretarial review. Additionally, other amendments incorporated two of 
the four Council-approved FMP changes regarding inshore/offshore 
language. In April 2008, the Council reviewed Amendments 62/62 and 
affirmed its 2002 decisions concerning the remaining FMP amendments.
    In conjunction with the Council's consideration of Amendments 62/
62, the Council also considered a separate regulatory amendment to 
allow AFA SFPs to relocate in the BSAI during a fishing year for 
purposes of processing pollock in the BSAI. Amendments 62/62 do not 
require any regulatory text changes, and the FMPs do not require 
modification to authorize the regulatory amendment concerning AFA SFPs. 
Therefore, the changes to the regulations in this final rule do not 
implement Amendments 62/62. The background and need for both actions 
were described in detail in the preamble to the proposed rule to revise 
single geographic location requirements in the BS subarea (74 FR 17137; 
April 14, 2009) and in the Notice of Availability (NOA) for Amendments 
62/62 (74 FR 14950; April 2, 2009). The proposed rule and NOA are 
available via the Internet (see ADDRESSES) and are summarized in 
separate sections below. No substantive changes were made to the 
proposed regulatory text in this final rule. One minor change to 
regulatory text is made at Sec.  679.7(k)(3)(vii) to clarify that it is 
the same AFA SFP that must return to the location where that particular 
AFA SFP first processed GOA pollock or GOA Pacific cod in 2002 in order 
to process GOA pollock or GOA Pacific cod after implementation of this 
final rule. NMFS' rationale for approving the regulatory provisions in 
this final rule is contained in the agency's response to comments 
below.

Single Geographic Location

    Single geographic location provisions apply to SFPs, which can be 
AFA or non-AFA qualified. An SFP, as defined at Sec.  679.2, is a 
vessel of the United States operating as a processor in State of Alaska 
(State) waters that remains anchored or otherwise remains stationary in 
a single geographic location while receiving or processing groundfish 
harvested in the GOA or BSAI. There are two AFA SFPs that are semi-
permanently moored in protected anchorages in the Aleutian Islands less 
than 45 nautical miles (nm) (83 km) apart, consisting of the F/V Arctic 
Enterprise which is located in Akutan Bay, and the F/V Northern Victor 
which is located in Beaver Inlet.
    Regulations in effect prior to this rule limited AFA inshore 
processors, including AFA SFPs, to a single geographic location during 
a fishing year when processing pollock harvested in the BS subarea 
directed pollock fishery. The regulations further specified that a 
single geographic location for an AFA SFP was the location within State 
waters that was within 5 nm of the position in which the SFP first 
processed pollock harvested in the BS subarea directed pollock fishery 
during a fishing year.
    This final rule allows any AFA SFP to change its location within 
State waters, from reporting week to reporting week, up to four times 
during a fishing year, for processing pollock harvested in the BS 
subarea directed pollock fishery. Originally, the single geographic 
location restriction was implemented in the inshore/offshore 
regulations to prevent floating processors, which have limited mobility 
and which operate in the inshore processing sector, from

[[Page 34702]]

having an unfair economic advantage over operators of onshore 
processing plants. It was also intended to prevent offshore catcher/
processors and motherships, that have greater mobility, from entering 
the inshore sector. With the passage of the AFA in 1998, and the 
associated cooperative agreements, these concerns diminished in the 
BSAI pollock target fisheries.
    The regulations further specify that no more than one single 
geographic location may be used during a reporting week, and specify 
that a single geographic location is the geographic position within 5 
nm of the latitude and longitude reported in check-in and check-out 
reports that are required under regulations at Sec.  
679.5(h)(5)(ix)(B). As many as five different locations may be used, 
but the number of times that an AFA SFP may move to change its location 
for purposes of processing pollock harvested in a BS subarea directed 
pollock fishery is limited to four.
    In addition, AFA inshore processors are required to process all GOA 
pollock and GOA Pacific cod delivered to them in the same location at 
which they processed these species in 2002. This restriction is 
intended to reduce the potential for these mobile AFA SFPs to take 
advantage of increased flexibility for processing locations in the BS 
subarea and receive and process a larger share of GOA pollock or GOA 
Pacific cod compared with the status quo in 2002, the year that Council 
action was taken. Pacific cod or pollock harvested in the GOA also are 
processed by other inshore processing operations. Without this 
restriction on AFA SFPs, other inshore processing operations would not 
be protected from the competitive advantage that could result from the 
increased mobility of the AFA SFPs. It is not the intention of this 
action to increase the operational flexibility of the AFA SFPs in the 
GOA pollock and GOA Pacific cod fisheries. Therefore, the AFA SFPs are 
restricted to processing GOA pollock and GOA Pacific cod to the 
location at which they processed these species in 2002.

Amendments 62/62

    Amendment 62 to the BSAI FMP revises the Catcher Vessel Operational 
Area (CVOA) descriptions to make the FMP consistent with current 
regulations at Sec.  679.22(a)(5). The CVOA is an area in which AFA 
catcher/processors are prohibited from directed fishing for pollock 
during the non-roe, or B, season unless they are participating in the 
Community Development Quota fishery. The previous FMP descriptions of 
the CVOA included outdated references to pollock B season dates and to 
the inshore and offshore components of the BSAI pollock fishery and 
were removed. The new BSAI FMP text for Section 3.5.2.1.6 and Appendix 
B is as follows: ``The CVOA is defined as the area of the BSAI east of 
167[deg]30' W. longitude, west of 163[deg] W. longitude, south of 
56[deg] N. latitude, and north of the Aleutian Islands. AFA catcher/
processors are prohibited from engaging in directed fishing for pollock 
in the CVOA during the non-roe season unless they are participating in 
the CDQ fishery.''
    Amendment 62 to the GOA FMP formally removes the December 31, 2004, 
sunset date for GOA inshore/offshore pollock and Pacific cod 
allocations. Housekeeping Amendments 83/75 (70 FR 35395, June 20, 2005) 
revised the FMPs by updating harvest, ecosystem, and socioeconomic 
information; consolidating text; and organizing the information to 
improve the readability of the documents. It was premature to remove 
the sunset date at that time, because that was not specified as one of 
the changes made by Amendments 83/75. This action officially removes 
the sunset date from the GOA FMP.

Recordkeeping and Reporting

    Existing regulations at Sec.  679.5(h)(1) require the manager of an 
SFP to submit check-in and check-out reports prior to receiving or 
ceasing to receive or process groundfish. Check-in and check-out 
reports must be submitted to the Regional Administrator within the 
appropriate time limits when beginning and when ceasing processing 
activities. Under this action, no more than a single geographic 
location may be used by an AFA SFP in a weekly reporting period. To 
monitor this restriction, the current check-in report and check-out 
report table at Sec.  679.5(h)(4) adds requirements for the manager of 
an AFA SFP to notify NMFS of a change in location by submitting a 
complete check-out report before changing location and a check-in 
report before receiving groundfish at the new location. The new 
location will be reported on the check-in report as currently required 
at Sec.  679.5(h)(5)(ix)(B).

Response to Comments

    The proposed rule was published in the Federal Register on April 
14, 2009 (74 FR 17137), with a 45-day comment period that ended on May 
29, 2009. The NOA for Amendments 62/62 was published on April 2, 2009 
(74 FR 14950), with a 60-day comment period that ended on June 1, 2009. 
NMFS received a total of two letters on the proposed rule that 
contained two unique comments. A summary of these comments and NMFS's 
responses follows.
    Comment 1: We support the adoption of Amendments 62/62. The 
redefinition of single geographic location will allow for greater 
flexibility and efficient use of the AFA stationary floating 
processors. Relocation of the stationary floating processors may be 
particularly useful if Steller sea lion regulations become more 
restrictive or pollock stocks move or shrink. Allowing these floating 
processors to relocate up to four times per year to process Bering Sea 
target pollock catch will allow for more efficiency by reducing 
delivery costs for catcher vessels and enhancing product quality with 
shorter delivery times. The amendment continues to provide protection 
for GOA groundfish processors by restricting the AFA stationary 
floating processors to the location in which they processed GOA pollock 
and Pacific cod in 2002. We believe the Council has taken appropriate 
action to meet the problem identified in the Bering Sea while still 
providing protection for Gulf of Alaska groundfish processors.
    Response: The Council's rationale for this action was provided in 
detail in the preamble to the proposed rule. NMFS has determined that 
the action is reasonable and NMFS finds the articulated rationale 
supported by the record. The above comment lends further support for 
approval of this action.
    Comment 2: All quotas allocated should be cut in half this year and 
all quotas should continue to be cut by 10 percent in each succeeding 
year. You should never rely on fish population numbers from the 
commercial fishermen.
    Response: Cutting catch quotas is beyond the scope of this action. 
NMFS conservatively manages the Alaska groundfish fisheries based on 
the best scientific information available. To ensure conservation of 
the resource, the status of the stocks is reviewed by NMFS and the 
Council each year through a public scientific review process before 
total allowable catch limits for each target species are allocated. 
Catch information from scientific surveys of the groundfish stocks and 
from the commercial fishing industry are important parts of this 
process. This action does not entail allocation of the fishery resource 
among fishermen.

Classification

    The Acting Administrator, Alaska Region, NMFS, determined that the 
FMP amendments and final rule are necessary for the conservation and

[[Page 34703]]

management of the GOA and BS subarea pollock fisheries and the GOA 
Pacific cod fishery, and that they are consistent with the Magnuson-
Stevens Act and other applicable laws. This final rule has been 
determined to be not significant for purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
OMB under Control Number 0648-0213. Public reporting burden for the 
shoreside processor check-in and check-out reports is estimated to 
average ten minutes 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 these burden 
estimates 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, and no person shall be subject to 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: July 13, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for 50 CFR 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 (l)(5)(iii) introductory text and 
(l)(5)(iii)(B) to read as follows:


Sec.  679.4  Permits.

* * * * *
    (l) * * *
    (5) * * *
    (iii) Single geographic location requirement. An AFA inshore 
processor permit authorizes the processing of pollock harvested in the 
BS subarea directed pollock fishery only in a single geographic 
location during a reporting week. For the purposes of this paragraph, 
single geographic location means:
* * * * *
    (B) Stationary floating processors (SFP). A geographic position 
within State of Alaska waters of the BS subarea and that is within a 5 
nm radius of the latitude and longitude reported in the check-in and 
check-out reports at Sec.  679.5(h)(5)(ix)(B). An AFA SFP cannot change 
its single geographic location more than four times within State of 
Alaska waters in the BS subarea to process pollock harvested in a BS 
subarea directed pollock fishery during a fishing year and cannot use 
more than one single geographic location during a reporting week.
* * * * *

0
3. In Sec.  679.5, add paragraph (h)(4)(x) to read as follows:


Sec.  679.5  Recordkeeping and reporting (R&R).

* * * * *
    (h) * * *
    (4) * * *

------------------------------------------------------------------------
                          If you are a    Submit a BEGIN  Submit a CEASE
        For ...                ...           message          message
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
(x) Change of location   AFA SFP         Before           Upon
                                          receiving        completion of
                                          groundfish.      receipt of
                                                           groundfish
                                                           from a
                                                           position and
                                                           before
                                                           movement from
                                                           that
                                                           position.
------------------------------------------------------------------------

* * * * *

0
4. In Sec.  679.7, revise paragraphs (a)(7)(vi) and (k)(3)(iv)(B) and 
add paragraph (k)(3)(vii) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (a) * * *
    (7) * * *
    (vi) Except as provided in paragraph (k)(3)(iv) of this section, 
use a stationary floating processor with a GOA inshore processing 
endorsement to process pollock or GOA Pacific cod harvested in a 
directed fishery for those species in more than one single geographic 
location during a fishing year.
* * * * *
    (k) * * *
    (3) * * *
    (iv) * * *
    (B) Stationary floating processor (SFP). A geographic position 
within State of Alaska waters of the BS subarea and that is within a 5 
nm radius of the latitude and longitude reported in the check-in and 
check-out reports at Sec.  679.5(h)(5)(ix)(B). An AFA SFP cannot change 
its single geographic location more than four times within State of 
Alaska waters in the BS subarea to process pollock harvested in a BS 
subarea directed pollock fishery during a fishing year and cannot use 
more than one single geographic location during a reporting week.
* * * * *
    (vii) Restrictions for GOA Pacific cod and GOA pollock. Use an AFA 
SFP to process GOA pollock or GOA Pacific cod in any location other 
than the location at which either GOA pollock or GOA Pacific cod were 
first processed by that SFP in the year 2002.
* * * * *
[FR Doc. E9-17088 Filed 7-16-09; 8:45 am]
BILLING CODE 3510-22-S