[Federal Register Volume 75, Number 162 (Monday, August 23, 2010)]
[Proposed Rules]
[Pages 51741-51747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20873]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

Docket No. 0906041011-91012-01
RIN 0648-AX91


Fisheries of the Exclusive Economic Zone Off Alaska; Pacific 
Halibut and Sablefish Individual Fishing Quota Program

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to modify the Individual Fishing 
Quota (IFQ) Program for the Fixed-Gear Commercial Fisheries for Pacific 
Halibut and Sablefish in waters in and off Alaska (IFQ Program) by 
revoking quota share (QS) that have been inactive since they were 
originally issued in 1995. Inactive QS are those held by persons that 
have never harvested their IFQ and have never transferred QS or IFQ 
into or out of their accounts.
    This action is necessary to achieve the catch limit from the 
halibut fisheries and optimum yield from the sablefish fisheries in 
Alaska in accordance with National Standard 1 of the Magnuson-Stevens 
Fishery Conservation and Management Act and results in more efficient 
use of these species as supported by National Standard 5. The intended 
effect is to promote the management provisions in the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area, the Fishery Management Plan for Groundfish of the Gulf 
of Alaska, and the Northern Pacific Halibut Act of 1982.

DATES: Comments must be received by 5 p.m., local time, on September 
22, 2010.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional

[[Page 51742]]

Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-
AX91 (PR), by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov.
     Fax: (907) 586-7557, Attn: Ellen Sebastian.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    No comments will be posted for public viewing until after the 
comment period has closed. All comments received are a part of the 
public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Electronic copies of the Categorical Exclusion and the Regulatory 
Impact Review and Initial Regulatory Flexibility Analysis (RIR/IRFA) 
prepared for this action may be obtained from http://www.regulations.gov, or from the Alaska Region website at http://alaskafisheries.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS, Alaska Region, e-mailed to 
[email protected], or faxed to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:  Peggy Murphy, (907) 586-7228.

SUPPLEMENTARY INFORMATION:

Halibut Management

    Management of the commercial fishery for Pacific halibut 
(Hippoglossus stenolepis) in and off Alaska is based on an 
international agreement between Canada and the United States. This 
agreement, titled ``Convention Between United States of America and 
Canada for the Preservation of the Halibut Fishery of the Northern 
Pacific Ocean and Bering Sea'' (Convention), was signed in Ottawa, 
Canada, on March 2, 1953, and amended by the ``Protocol Amending the 
Convention,'' signed in Washington, D.C., March 29, 1979. The 
Convention is administered by the International Pacific Halibut 
Commission (IPHC) and is given effect in the United States by the 
Northern Pacific Halibut Act of 1982 (Halibut Act).
    Generally, the IPHC surveys the Pacific halibut stock and develops 
fishery management regulations pursuant to the Convention. The IPHC's 
regulations are subject to approval by the U.S. Secretary of State with 
concurrence from the Secretary of Commerce (Secretary). NMFS publishes 
approved regulations in the Federal Register as annual management 
measures pursuant to 50 CFR part 300.62. NMFS published the current 
annual management measures on March 18, 2010 (75 FR 13024). Federal 
regulations governing the halibut fisheries appear at 50 CFR part 300, 
subpart E.
    The Halibut Act (section 773(c)) also authorizes the North Pacific 
Fishery Management Council (Council) to develop halibut fishery 
regulations, including limited access regulations that are in addition 
to, and not in conflict with, approved IPHC regulations for U.S. 
Convention waters. Such regulations may be implemented by NMFS only 
after approval by the Secretary. The Council has exercised this 
authority most notably in the development of the Individual Fishery 
Quota (IFQ) Program codified at 50 CFR part 679.40.

Sablefish Management

    Federal management of the commercial fishery for sablefish 
(Anoplopoma fimbria) is authorized by the Fishery Management Plan for 
Groundfish of the Bering Sea and Aleutian Islands Management Area and 
the Fishery Management Plan for Groundfish of the Gulf of Alaska 
(FMPs). The FMPs were prepared by the Council under authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1801 et seq.) (Magnuson-Stevens Act) and implemented by regulations at 
50 CFR part 679.

IFQ Program

    The Council and NMFS developed the IFQ Program for the halibut and 
sablefish fixed-gear fishery in waters in and off Alaska. The IFQ 
Program limits access to the fisheries to persons holding QS. Annually, 
the amount of halibut and sablefish that each QS holder may harvest is 
calculated and issued as IFQ. The Council adopted the IFQ Program in 
1991 under the authority of the Halibut Act and the Magnuson-Stevens 
Act. The preamble to the proposed rule, published December 3, 1992 (57 
FR 57130), provides details of the conservation and management 
background leading to the Council's adoption of the IFQ Program. NMFS 
implemented the program on November 9, 1993 (58 FR 59375) through 
Federal regulations at 50 CFR part 679. Fishing under the IFQ Program 
began on March 15, 1995.
    The IFQ Program is designed to maintain the social character and 
economic benefits of the commercial, fixed-gear fisheries that Alaskan 
coastal communities rely on as a source of revenue. The Council and 
NMFS intend the IFQ Program to provide economic stability for the 
Pacific halibut and sablefish commercial fisheries and improve long-
term productivity of the resources. The IFQ management approach 
extended the fishing season, and harvests of the annual total allowable 
catch (TAC) now occur throughout most of the year. The season length 
and known amount of QS let fishermen set their own pace and their 
fishing effort to focus more attention on safety, operational 
efficiency and product quality. The IFQ program also allows fishermen 
to transfer QS, giving them flexibility to determine what type of 
investment to make based on when, where, and how much halibut and 
sablefish they can harvest.

Initial Assignment and Recipients of QS

    Quota shares were initially assigned to persons that owned vessels 
or held a vessel lease and made at least one landing in a regulatory 
area in any one of the years 1988, 1989, or 1990. The intent was to 
assign initial shares only to those fishermen then currently active in 
the halibut and sablefish fixed-gear fisheries. The amount of QS a 
person received was based on his or her documented, historical catch 
for 5 out of 6 years (1985 through 1990) for sablefish, and for 5 out 
of 7 years (1984 through 1990) for halibut. This allowed a person to 
choose the best 5 years to calculate his or her assignment. The number 
of QS units issued to each person was based on each person's selection 
of years of landings.
    Persons holding QS for an area have harvesting privileges for an 
amount of halibut or sablefish that is derived annually from their QS 
holdings in that area and authorized on their IFQ permit. The specific 
amount (in pounds) is determined by the number of QS units held for 
that species, the total number of QS units issued for that species in a

[[Page 51743]]

specific regulatory area, and the TAC of the species allocated for IFQ 
fisheries in a particular year. To simplify the language in the 
remainder of this document, the concept of QS units and associated IFQ 
pounds issued annually is referred to singularly as QS except in 
reference to specific Council direction and in the draft regulations.
    One design feature of the IFQ Program requires IFQ permit holders 
to be on board the vessel to maintain a predominantly ``owner-
operated'' fishery with a narrow exemption for initial recipients of 
QS. Initial recipients of catcher vessel QS may be absent from a vessel 
conducting IFQ halibut or sablefish fishing, provided the QS holder can 
demonstrate at least a minimum specified level of ownership of the 
vessel that harvests the IFQ halibut or sablefish, as well as 
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.

Need for Action

    In June 2006, the Council recommended removal of initially 
allocated halibut and sablefish QS from QS holders that had never 
harvested IFQ halibut or IFQ sablefish, or that had never transferred 
any QS or IFQ since initially receiving the QS. Quota share would be 
considered inactive if the QS and the associated annual allocation of 
IFQ pounds have been neither transferred nor fished.
    Inactive QS exists for a variety of reasons. The initial allocation 
of halibut or sablefish QS was made to qualified persons according to 
regulations at Sec.  679.40(a). These regulations specified no minimum 
pounds of halibut or sablefish to be harvested during the respective 
halibut and sablefish base periods (1984-1990 for halibut and 1985-1990 
for sablefish), but one catch landing had to occur in any one of the 
last 3 years of the base period. Hence, the calculation of initial QS 
for some qualified persons resulted in their receiving very small QS 
allocations. The IFQ poundage derived from these allocations of QS also 
is small: in some cases summing to fewer pounds than a whole fish. The 
recipients of these small QS allocations have presumably elected not to 
participate actively in the IFQ fisheries. Though, persons holding 
inactive QS have had the same opportunity as persons with active QS to 
participate in the IFQ program by fishing and transferring QS and IFQ. 
Other persons holding inactive QS are no longer in the commercial 
fishing industry, are deceased, or have been unable or unwilling to 
divest or otherwise transfer their inactive QS.
    The existence of inactive QS was not specifically addressed during 
the implementation, development or maintenance of the IFQ program. As a 
result, several hundred accounts with very small amounts of inactive QS 
remain in the IFQ Program database. Even though the QS is inactive, 
NMFS must perform routine administrative tasks to process, monitor, and 
maintain data on the inactive QS, including recordkeeping, regular 
correspondence with QS holders, and monthly and annual reporting. IFQ 
permit holders are responsible for the costs and reimburse NMFS for 
those costs through the IFQ cost recovery program (50 CFR 679.45). When 
inactive QS are held and not harvested, active IFQ holders pay slightly 
higher fees for the IFQ Program because IFQ cost recovery fees apply 
only when IFQ species are landed.
    As a result of the inactive QS, some IFQ will not be harvested and 
a portion of the TAC will remain unharvested. This reduces economic and 
social benefits from QS harvest typically realized by fishery dependent 
businesses and the public. Unused IFQ also deprives consumers of 
product. Holding inactive QS prevents access to halibut and sablefish 
QS by persons qualified to fish the QS, and limits the ability of 
fishermen interested in entering the IFQ Program or expanding their QS 
holdings. Hence the inactive QS prevent the IFQ fisheries from 
optimizing yield.

Proposed Action

    This action proposes to revoke inactive halibut and sablefish QS 
from the QS pools. The portion of the annual halibut and sablefish TACs 
represented by the revoked QS and associated IFQ would be distributed 
among IFQ permit holders in an amount proportional to their IFQ 
allocation. Alternatively, if a permit holder requests NMFS not to 
revoke his or her inactive QS, then NMFS would assign an active status 
to that QS and the associated IFQ would continue to be issued annually.
    All halibut and sablefish QS identified as inactive are held by 
initial recipients of QS. Revoking QS as proposed would not change the 
initial recipient status of the QS holder. Hence, if a person was 
initially allocated QS that would be revoked under this action, and 
then subsequently acquires new QS in the future, that person still 
would retain the benefit of being an initial recipient of QS for 
purposes of retaining the flexibility of using a hired master.
    Although the administrative burden for the retained QS would not be 
reduced, annual administrative tasks and costs for managing revoked QS 
would be eliminated. Reducing the administrative burden would allow for 
more efficient use of IFQ Program resources, and, for the sablefish 
fisheries, is consistent with National Standard 5. Revoking inactive QS 
also would reduce costs and improve operational flexibility of active 
program participants. The change in distribution of IFQ allows broader 
opportunity to achieve the catch limit in halibut fisheries and optimum 
yield from the sablefish fisheries as required by National Standard 1 
of the Magnuson-Stevens Act.
    The Council recommended this proposed action as part of a multi-
part IFQ regulatory amendment package. NMFS subsequently separated the 
Council's multiple recommendations into independent regulatory 
amendment packages to better address priority actions in a timely 
manner. This proposed rule is the final one of the series recommended 
by the Council in 2006. As a result, several years have passed between 
the Council's action notifying the public of the pending change to the 
IFQ Program and publication of this proposed rule. During these years, 
NMFS followed the Council's recommendation to contact persons holding 
inactive halibut or sablefish QS by mail and to communicate that NMFS 
is pursuing rulemaking that, if implemented, would require persons to 
notify NMFS in writing that they do not want their inactive QS and 
associated annual IFQ revoked. NMFS notified persons with inactive QS 
of the status of the proposed action in letters sent by direct mail in 
January 2008 and in March 2009. The notification process was 
productive, stimulating transfers of inactive QS that resulted in 
almost a 50-percent decline in the number of persons holding inactive 
halibut and sablefish QS. An additional recommendation of the Council 
to provide broad public notice of the Council's intent to withdraw 
inactive QS is addressed with publication of this proposed rule in the 
Federal Register.

Council Consideration

    The RIR/IRFA prepared for this action (see ADDRESSES) reports that 
when the Council initially considered the proposal in June 2006, 534 
persons held inactive QS for halibut, which yielded roughly 280,000 
pounds (127 mt) of IFQ. Inactive sablefish QS was held by

[[Page 51744]]

seven persons and yielded roughly 16,000 pounds (7.3 mt) of IFQ that 
year. Given this amount of inactive QS and associated IFQ, the Council 
recommended a lottery for a one-time redistribution of inactive QS if 
the total amount of inactive QS is more than the number of QS units 
equivalent to 50,000 pounds (22.7 mt) of halibut IFQ for all IPHC 
regulatory areas in the year of the lottery; therefore, the Council's 
secondary recommendation for a lottery was conditioned on the total 
amount of inactive QS that could be revoked being greater than that 
which would yield 50,000 pounds (22.7 mt) of halibut IFQ for all IPHC 
regulatory areas in the year of the lottery.
    NMFS reported to the Council at its December 2008 meeting that the 
amount of IFQ associated with the number of inactive halibut QS fell 
below the 50,000 pound (22.7 mt) threshold for implementing a lottery 
to redistribute the inactive QS. At that time, 278 persons held 
inactive QS: 275 held halibut QS, and 4 held sablefish QS (one person 
held QS for both species). Using 2008 ratios, this inactive QS 
represented 34,719 halibut IFQ pounds (15.8 mt) and 924 sablefish IFQ 
pounds (0.4 mt). During 2006-2008, the total number of unique, inactive 
QS holders declined 49 percent. Assuming year-specific ratios of QS 
units to IFQ pounds, the amount of change in inactive IFQ pounds of 
halibut and sablefish can be generally represented as a decline of 87.6 
percent and 94.2 percent, respectively. The Council noted the extent of 
QS consolidation and notified the public of its intention to review its 
preferred alternative during the February 2009 Council meeting.
    In February 2009, the Council reaffirmed its preferred alternative 
to remove inactive halibut and sablefish QS. It acknowledged that the 
amount of inactive halibut QS had consolidated below the 50,000 (22.7 
mt) pound threshold level the Council previously identified to 
implement a lottery for the redistribution of inactive QS; therefore, 
the proposed action was narrowed to exclude the lottery recommendation 
and to revoke inactive QS only when no action is taken by the QS 
holder. Action by the QS holder means that the QS holder must notify 
NMFS in writing to specifically request that their inactive QS not be 
revoked or present evidence that the QS should not have been determined 
inactive.
    In the time since the Council discussed this issue at the beginning 
of 2009, the number of persons holding inactive QS has declined 
further. As of December 31, 2009, 242 permit holders held inactive QS; 
240 held halibut QS, and three held sablefish QS (one person held QS 
for both species). Using 2009 ratios, the amount of inactive QS held 
represent 24,299 pounds (11.02 mt) of halibut IFQ and 731 pounds (0.33 
mt) of sablefish IFQ. Between December of 2008 and December of 2009 the 
total number of persons holding inactive QS declined 13 percent. The 
ratio of QS units to IFQ pounds is similar in 2008 and 2009, allowing 
direct comparison of the IFQ pounds of inactive QS between the two 
years. In the 12 months between December 2008 and 2009, the amount of 
inactive halibut QS declined 30 percent and the amount of inactive 
sablefish QS declined 21 percent.

Official Notice and Record

    If the proposed rule is approved by the Secretary of Commerce and 
implemented, NMFS would send each holder of inactive QS a ``Notice of 
Determination of Quota Share Inactivity'' (Inactive QS Notice). The 
Inactive QS Notice would be sent by certified mail to the address of 
record at the time the Inactive QS Notice is sent (50 CFR 679.43(e)). 
NMFS bears no responsibility if the Inactive QS Notice is sent to the 
address of record and is not received because NMFS has not been 
notified of the change in the address of record. The Inactive QS Notice 
would describe the inactive status of the QS, identify the IFQ permit 
holder, and provide the date the authorized 60-day response period 
ends.
    NMFS would issue an Inactive QS Notice alerting a holder of 
inactive halibut or sablefish QS that their QS is considered inactive 
based on records maintained by NMFS indicating that initially issued QS 
was never used to land IFQ halibut or IFQ sablefish or to transfer any 
QS or IFQ to or from another person. The official record of an IFQ 
halibut or IFQ sablefish landing would contain the IFQ permit number to 
which the IFQ landing would have been credited. The number and amount 
of landings would be based only on legally submitted harvest 
documentation. This documentation must include a state catch report, a 
Federal catch report, or other valid documentation that indicates the 
amount of IFQ halibut or IFQ sablefish harvested, the IPHC or 
groundfish reporting area in which the IFQ pounds were harvested, the 
vessel and gear type used for the harvest, and the date of harvesting, 
landing, or reporting. Federal catch reports are production reports 
required under 50 CFR 679.5. NMFS has used production reports only for 
catcher/processors to document IFQ landing and active QS. State catch 
reports are Alaska, California, Oregon, or Washington fish tickets. 
State fish tickets are used by NMFS only for catcher vessels as data 
sources to determine the specific amount and location of landings that 
would demonstrate active QS.
    NMFS presumes that the official record data sources are correct. In 
the case where a person believes the official record is incorrect, his 
or her claim can be raised in a separate correspondence to NMFS, 
Restricted Access Management Program, Juneau, AK (see ADDRESSES).

Options for Persons Holding Inactive QS

    A person that holds inactive QS would have two options to respond 
to receipt of an Inactive QS Notice. During the 60-day response period 
specified in the Inactive QS Notice, the person holding the inactive QS 
could choose to (1) do nothing, thereby resulting in revocation of the 
inactive QS; or (2) request in writing that the inactive QS not be 
revoked. Alternatively, a person holding inactive QS could exercise 
options that have existed since the beginning of the IFQ Program in 
1995 to either transfer some or all of the inactive QS, or harvest 
halibut or sablefish based on IFQ derived from the inactive QS. These 
options are further explained below.
    First, a person holding inactive QS could choose to do nothing. 
That person's inactive QS would be revoked at the end of the 60-day 
period specified in the Inactive QS Notice. Revoked QS would cease to 
exist in the QS pool and would not receive an annual allocation of IFQ 
poundage for IFQ halibut or IFQ sablefish. Any IFQ derived from the 
inactive QS also would be revoked at the time that the inactive QS are 
revoked. After inactive QS are revoked, the previous holder of those QS 
could participate in the IFQ halibut or IFQ sablefish fisheries only if 
they receive QS by transfer.
    Second, a person with inactive QS could choose to retain or 
activate the QS by notifying NMFS in writing that he or she does not 
want the inactive QS revoked. Such written requests would have to be 
postmarked within the 60-day response period specified in the Inactive 
QS Notice. This response would allow NMFS to activate the otherwise 
inactive QS by the QS holder's demonstration of at least minimal 
activity in the IFQ Program. NMFS would allocate IFQ based on the 
activated QS as it has done since the beginning of the IFQ Program, and 
the holder of such QS would continue to benefit from the initial 
recipient

[[Page 51745]]

privileges specified in the regulations implementing the IFQ Program 
(Sec. Sec.  679.41 and 679.42). Moreover, the IFQ halibut and IFQ 
sablefish harvesting privilege for such a QS holder would continue as 
it does for all other QS holders.
    The options to activate otherwise inactive QS by either 
transferring some or all of the inactive QS, or harvesting halibut or 
sablefish based on IFQ derived from the inactive QS, would continue to 
be available to a person holding inactive QS through the end of the 60-
day response period specified in the Inactive QS Notice. No additional 
period of time is proposed to demonstrate these activities because the 
person holding the inactive QS has already had an opportunity to 
demonstrate such activity since the beginning of the IFQ Program in 
1995. Further, the two information letters sent by NMFS to persons 
holding inactive QS notifying them of this proposed action successfully 
alerted a significant number of persons holding inactive QS as 
demonstrated by comparison of IFQ program participation over time as 
summarized under Council consideration above.
    A person holding inactive QS who is unable to respond to the 
Inactive QS Notice from NMFS within the 60-day response period may 
appeal to NMFS to submit his or her response late to the NMFS Alaska 
Region Office of Administrative Appeals pursuant to Sec.  679.43. As a 
practical matter, any other challenge of the Inactive QS Notice within 
the 60-day response period would be considered as a written request to 
not revoke the inactive QS. As such, a challenge would activate the 
otherwise inactive QS by demonstrating a reaction and therefore at 
least minimal activity in the IFQ Program.

Written Response

    The Inactive QS Notice provides the person holding the inactive QS 
with the opportunity to respond in writing to NMFS within a single 60-
day response period, from the date that the Inactive QS Notice is sent, 
and clearly request the QS and IFQ remain active. Response will only be 
accepted by mail to simplify processing of responses. E-mail, fax or 
any other form of response is not acceptable. The Inactive QS Notice 
would be constructed to allow the bottom half of the document to be 
separated and used as a mail-in response form to NMFS indicating 
whether the holder of the inactive QS wants to retain the QS. The 
following written statement would be printed on the mail-in response 
form as an expression of request to not revoke the inactive QS: ``I 
[print first name, middle initial and surname] request that NMFS not 
revoke my quota share authorized by my signature on this date. Signed 
[Write signature]. Dated [Enter the current date].'' A holder of 
inactive QS may also respond by mail without using the provided form, 
but must include all the same specific information, names, signatures 
and dates as included on the mail-in response form. Once the completed 
mail-in form or other response statement is received in the mail by 
NMFS and verified correct, a letter of acknowledgement will be issued 
to the person identified as the holder of the inactive QS or his or her 
legal representative. The letter would serve as final agency action 
advising that QS would be 'active' and no further response by the 
person holding the inactive QS or NMFS would be required.

Previous Response to NMFS

    NMFS previously sent QS holders two informational letters noticing 
them of this proposed action to revoke inactive QS. A QS holder who 
previously responded to NMFS letters that still holds inactive QS must 
resubmit a response to NMFS by mail within the authorized 60-day 
response period or NMFS would revoke the inactive QS. Any previous 
request to NMFS to activate inactive QS is not sufficient for NMFS to 
change that QS status. A written response is required within the 60-day 
response period specifically provided by the Inactive QS Notice. If a 
response was submitted to NMFS on the subject of inactive QS and the 
IFQ permit holder has since had the inactive QS officially activated by 
completing a transfer or fishing the IFQ, then no further response is 
required. If an IFQ permit holder previously responded to NMFS letters 
about inactive QS and requested he or she be able to keep the inactive 
QS, then the IFQ permit holder must submit that request to NMFS again 
within the 60-day response period provided by the Inactive QS Notice or 
the inactive QS will be revoked. If a person holding inactive QS fails 
to notify NMFS of his or her interest to activate their QS within the 
60-day response period, then NMFS would revoke the inactive QS.

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 Halibut Act, the FMPs, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the International Pacific Halibut Commission, the Pacific 
Fishery Management Council, the North Pacific Fishery Management 
Council, and the Secretary of Commerce. Section 5 of the Northern 
Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the 
Regional Council having authority for a particular geographical area to 
develop regulations governing the allocation and catch of halibut in 
U.S. Convention waters as long as those regulations do not conflict 
with IPHC regulations. This action is consistent with the Council's 
authority to allocate halibut catches among fishery participants in the 
waters in and off Alaska.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A summary of the analysis follows. A copy of 
this analysis is available from NMFS (see ADDRESSES).
    The IRFA prepared for this proposed action assesses the potential 
adverse economic impacts each alternative would have on directly 
regulated small entities if the proposed regulations were adopted to 
revoke inactive QS. A business is considered a small entity if annual 
gross revenues are less than $4.0 million. NMFS defines all halibut and 
sablefish vessels as small businesses, for the purpose of this 
analysis. The number of small entities operating as fishing vessels in 
the IFQ fisheries may be deduced from the restrictions placed on the 
amount of annual IFQ that may be landed from any individual vessel. In 
1995, the year the IFQ Program began and the year before the Council 
recommended this proposed action, a total of 2,057 vessels participated 
in IFQ halibut fisheries in all areas, and a total of 616 vessels 
participated in the IFQ sablefish fisheries in all areas combined. In 
late 2008, when the Council chose to revisit this action, a total of 
1,156 vessels participated in the IFQ halibut fishery, and 362 vessels 
participated in the IFQ sablefish fishery in all areas. The total 
number of vessels includes

[[Page 51746]]

individual vessels that participated in the fisheries in any regulatory 
area.
    The purpose of amending the regulations for the halibut and 
sablefish IFQ Program is to improve program administration, reduce 
costs and improve operational flexibility of program participants, and 
help achieve optimum yield. Inquiries about the cost of the IFQ Program 
and access to inactive QS provided impetus for the Council to consider 
this proposed action. There is no regulatory authority for NMFS to 
revoke QS or accept relinquishment of QS amounts that are impractical 
or uneconomical to fish; instead, QS may be voluntarily transferred or 
fished.
    The Council initiated analysis of four issues pertaining to the IFQ 
Program for the fixed-gear halibut and sablefish fishery in 2006. An 
RIR/IRFA was provided for public review May 12, 2006 that analyzed each 
issue in one, multi-part, IFQ regulatory amendment package. This 
proposed action on the issue of inactive QS was referred to as Action 3 
in the 2006 RIR/IRFA. The Council reviewed the status quo alternative 
of not revoking inactive halibut or sablefish QS, and two alternatives 
to withdraw inactive QS. Alternative 1 is the no action alternative and 
would not change any economic impacts on directly regulated small 
entities. Under the status quo, holders of inactive QS would have no 
option to relinquish their inactive halibut or sablefish QS. Federal 
regulations do not provide for the voluntary removal of QS other than 
through transfer.
    Alternative 2 would revoke all inactive halibut and sablefish QS. 
Inactive QS is initially allocated QS that has never been used to 
harvest halibut or sablefish and has never been transferred in to or 
out of the initial QS account. Only persons who do not hold active QS 
would be affected. Persons that transferred some or all of their 
halibut or sablefish IFQ but never harvested any IFQ halibut or IFQ 
sablefish would not be subject to revocation of their QS under this 
alternative.
    Alternative 3, recommended by the Council, would revoke all 
inactive QS unless the holder of the inactive QS notifies NMFS of his 
or her interest to retain their inactive QS. Alternative 3 also 
provides for a lottery to redistribute revoked QS to eligible persons 
unless the amount of inactive QS available to be revoked is below a 
threshold of QS units equal to 50,000 pounds (22.7 mt) for all IPHC 
regulatory areas.
    NMFS is not aware of any additional alternatives to those 
considered that would accomplish the objectives of the action and that 
would minimize the economic impact of the proposed rule on small 
entities.
    In June 2006, the Council adopted a preferred alternative, 
Alternative 3, to (a) revoke all inactive halibut and sablefish QS, 
held by initial QS recipients, from the QS pools and (b) redistribute 
inactive halibut QS through a lottery if the final amount of revoked 
inactive QS exceeds the number of QS units equivalent to 50,000 pounds 
(22.7 mt) for all IPHC regulatory areas in the year of the lottery.
    After the Council's 2006 action on the multi-part IFQ regulatory 
amendment package, NMFS separated the Council's multiple 
recommendations into different regulatory amendment packages, including 
this proposed action on inactive QS. In 2008, the amount of inactive QS 
was less than the threshold poundage prompting the Council, in February 
2009, to reaffirm its previous recommendation for Alternative 3, minus 
the lottery. An updated RIR/IRFA for this proposed regulatory amendment 
to the halibut and sablefish IFQ program was finalized September 8, 
2009.
    In 1995, more than 500 persons were issued QS that they 
subsequently did not use and that would be considered inactive QS under 
this proposed action. By December 31, 2009, the number of IFQ permit 
holders with inactive QS declined to 242, with 240 holding inactive 
halibut QS, and three holding inactive sablefish QS (one person held 
inactive QS for both species). Using 2009 ratios, the amount of 
inactive QS held in December 2009 represent 24,299 pounds (1 mt) of 
halibut and 731 pounds (0.33 mt) of sablefish.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by the Office of Management and Budget (OMB) under Control No. 
0648-0272. Public reporting burden for a letter requesting NMFS not 
revoke IFQ Program QS is estimated to average 15 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 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, and no person shall 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: August 17, 2010.
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.  679.40, add paragraph (a)(10) to read as follows:


Sec.  679.40  Sablefish and halibut QS.

* * * * *
    (a) * * *
    (10) NMFS revokes inactive QS if the person holding inactive QS 
does not:
    (i) Respond in writing to NMFS, within 60 days after NMFS issues a 
Notice of Determination of Quota Share Inactivity (Inactive QS Notice) 
sent to the address of record as defined at Sec.  679.43(e) of this 
part, requesting that the inactive QS not be revoked.
    (ii) For purposes of paragraph (a)(10) of this section, ``respond 
in writing'' means write a statement directing NMFS to change the 
status of QS to ``active'' and sign and date the statement or complete 
the form attached to the Inactive QS Notice and send through U.S Mail 
to the NMFS, Alaska Region address provided on the Inactive QS Notice 
and printed on the front side of the form.
    (iii) For purposes of paragraph (a)(10) of this section, the term 
``inactive QS'' means halibut QS or sablefish QS, held by a person who 
received an initial allocation of halibut QS or sablefish QS and has 
not taken any of the following actions:
    (A) Transferred any halibut QS or sablefish QS pursuant to Sec.  
679.41;
    (B) Transferred any halibut IFQ or sablefish IFQ pursuant to Sec.  
679.41;
    (C) Landed any halibut authorized by IFQ halibut permit(s) issued 
to that person; or

[[Page 51747]]

    (D) Landed any sablefish authorized by IFQ sablefish permit(s) 
issued to that person.
* * * * *
[FR Doc. 2010-20873 Filed 8-20-10; 8:45 am]
BILLING CODE 3510-22-S