[Federal Register Volume 79, Number 184 (Tuesday, September 23, 2014)]
[Rules and Regulations]
[Pages 56671-56681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22568]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 130424402-4775-02]
RIN 0648-BD23


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Management Area; Amendment 105

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

ACTION: Final rule.

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SUMMARY: NMFS publishes regulations to implement Amendment 105 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (BSAI FMP). Amendment 105 and its implementing 
regulations establish a process for Western Alaska Community 
Development Quota (CDQ) groups, and cooperatives established under the 
Amendment 80 Program (Amendment 80 cooperatives), to exchange harvest 
quota from one of three flatfish species (flathead sole, rock sole, and 
yellowfin sole) for an equal amount of another of these three flatfish 
species, while maintaining total catch below acceptable biological 
catch (ABC) limits. This final rule modifies the annual harvest 
specifications process to allow the North Pacific Fishery Management 
Council (Council) to establish the maximum amount of flathead sole, 
rock sole, and yellowfin sole that may be exchanged based on social, 
economic, or biological considerations. This action is necessary to 
mitigate the operational variability, environmental conditions, and 
economic factors that may constrain the CDQ groups and Amendment 80 
cooperatives from achieving, on a continuing basis, the optimum yield 
in the BSAI groundfish fisheries. This action is intended to promote 
the goals and objectives of the BSAI FMP, the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), and other 
applicable law.

DATES: Effective October 23, 2014.

ADDRESSES: Electronic copies of the Regulatory Impact Review (RIR), 
Initial Regulatory Flexibility Analysis (IRFA), and the Categorical 
Exclusion prepared for this action, the supplemental information report 
prepared for the final 2014 and 2015 harvest specifications (Harvest 
Specifications Supplemental Information Report (SIR)), and the Alaska 
Groundfish Harvest Specifications Final Environmental Impact Statement 
(Harvest Specifications EIS) may be obtained from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://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, AK; or by email to [email protected] or fax 
to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907-586-7228

SUPPLEMENTARY INFORMATION:

Regulatory Authority

    Here, NMFS establishes regulations to implement Amendment 105 to 
the BSAI FMP. NMFS manages the U.S. groundfish fisheries of the 
Exclusive Economic Zone off Alaska under the BSAI FMP and the Fishery 
Management Plan for Groundfish of the Gulf of Alaska. The Council 
prepared the BSAI FMP pursuant to the Magnuson-Stevens Act and other 
applicable law. Regulations implementing the BSAI FMP appear at 50 CFR 
part 679. General regulations governing U.S. fisheries also appear at 
50 CFR part 600.

Background

    NMFS published the Notice of Availability for Amendment 105 in the 
Federal Register on June 13, 2014 (79 FR 33889), with a 60-day comment 
period that ended August 12, 2014. NMFS published a proposed rule for 
Amendment 105 in the Federal Register on June 30, 2014 (79 FR 36702). 
The 30-day comment period on the proposed rule ended July 30, 2014. 
NMFS received a total of five comment letters from three unique persons 
during the comment periods. The comment letters

[[Page 56672]]

contained 13 substantive comments. The Secretary of Commerce 
(Secretary) approved Amendment 105 on September 11, 2014, after taking 
into account all public comments, and determining that Amendment 105 is 
consistent with the BSAI FMP, the Magnuson-Stevens Act, and other 
applicable law. A summary of these comments and NMFS' responses are 
provided in the Comments and Responses section of this preamble.
    Amendment 105 amends the BSAI FMP, and this final rule revises 
Federal regulations to:
     Define an amount of flathead sole, rock sole, and 
yellowfin sole in the BSAI, that is the difference between each 
species' annual ABC and annual total allowable catch (TAC), as the ABC 
surplus for that flatfish species.
     Allow the Council to recommend, and NMFS to specify, that 
some, none, or all of the ABC surplus for flathead sole, rock sole, or 
yellowfin sole in the BSAI be set aside each year through the annual 
harvest specifications process. The amount of ABC surplus set aside for 
a species is the ABC reserve.
     Allow CDQ groups and Amendment 80 cooperatives to apply to 
NMFS to receive a portion of the ABC reserve for flathead sole, rock 
sole, or yellowfin sole in the BSAI if they exchange a portion of their 
unused annual allocations of one or two flatfish species for an equal 
amount of another flatfish species (e.g., exchange an amount of unused 
annual allocation of flathead sole or allocations of flathead sole and 
rock sole for an equal amount of yellowfin sole ABC reserve). This 
exchange is defined as a Flatfish Exchange.
     Allow a Flatfish Exchange only if it would not cause a CDQ 
group or an Amendment 80 cooperative to exceed the ABC or ABC reserve 
amount for flathead sole, rock sole, or yellowfin sole.
     Limit the number of Flatfish Exchanges that each CDQ group 
or Amendment 80 cooperative could undertake to no more than three 
exchanges in a calendar year.

Background

    A detailed review of the provisions of Amendment 105, the 
implementing regulations, and the rationale for these regulations is 
provided in the preamble to the proposed rule (79 FR 36702, June 30, 
2014) and is not repeated here. The proposed rule is available from the 
NMFS Alaska Region Web site (see ADDRESSES). The preamble to this final 
rule provides a brief review of the regulatory changes made by this 
final rule to the management of flatfish fisheries in the BSAI.
    The BSAI FMP and its implementing regulations require that the 
Council recommend and NMFS specify an overfishing level (OFL), an ABC, 
and a TAC for each stock or stock complex (i.e., species or species 
group) of groundfish on an annual basis. The OFLs, ABCs, and TACs for 
BSAI groundfish are specified through the annual harvest specifications 
process. The BSAI FMP defines the OFL as the level above which 
overfishing is occurring for a species or species group. NMFS manages 
fisheries in an effort to ensure that no OFLs are exceeded in any year. 
The BSAI FMP defines the ABC as the level of a species or species 
group's annual catch that accounts for the scientific uncertainty in 
the estimate of OFL and any other scientific uncertainty. The ABC 
cannot exceed the OFL, and NMFS attempts to manage all fisheries so 
that total catch does not exceed the ABC by monitoring fisheries and 
imposing necessary closures and other limitations. The TAC is the 
annual catch target for a species or species group, derived from the 
ABC by considering social and economic factors and management 
uncertainty. The BSAI FMP requires that the TAC must be set lower than 
or equal to the ABC.
    Section 3.2.2.2 of the BSAI FMP and regulations at Sec.  
679.20(a)(2) require the sum of the TACs in all BSAI groundfish 
fisheries to be set within a range from 1.4 to 2 million metric tons 
(mt). This regulation implements the statutory requirement that ``[t]he 
optimum yield for groundfish in the Bering Sea and Aleutian Islands 
Management Area shall not exceed 2 million metric tons'' (see section 
803(c) of Pub. L. 108-199). The Council may recommend TACs that are 
lower than the ABCs recommended by its Scientific and Statistical 
Committee if, among other reasons, setting TACs equal to ABCs would 
cause TACs to exceed 2 million mt. NMFS adheres to the statutory 
provision by limiting the sum of the TACs for all BSAI groundfish to 2 
million mt. The Secretary will approve the final rule for the annual 
harvest specifications, which implements the Council's recommended 
OFLs, ABCs, and TACs, if she finds them consistent with the BSAI FMP, 
Magnuson-Stevens Act, and other applicable law. The final 2014 and 2015 
harvest specifications provide additional detail on this process (79 FR 
12108, March 04, 2014).
    In the BSAI, flathead sole, rock sole, and yellowfin sole are 
harvested by vessels primarily using trawl gear. In these multi-species 
fisheries, operators target certain species of flatfish but also take a 
variety of species incidentally, including halibut and crab (species 
that are prohibited for harvest by vessels fishing for groundfish), and 
other groundfish that typically occupy the same habitat at the same 
times of year. The composition of groundfish species taken in the BSAI 
flatfish fisheries varies by season and fishing year.
    Although there is a relatively high biomass of flathead sole, rock 
sole, and yellowfin sole, and relatively high ABCs, compared to most 
BSAI groundfish species, the TACs set for these three flatfish species 
have not been fully harvested in recent years. Therefore, the Council 
has recommended, and NMFS has approved, setting flathead sole, rock 
sole, and yellowfin sole TACs below the ABCs for those species. Some of 
the reasons for the relatively limited harvests of flathead sole, rock 
sole, and yellowfin sole include the uncertain nature of harvest in 
these multi-species flatfish fisheries, operational factors specific to 
the fisheries, and economic conditions. Additional detail describing 
harvests of flathead sole, rock sole, and yellowfin sole is in the 
preamble of the proposed rule and in Sections 1.5 and 1.6 of the RIR/
IRFA prepared for this action.
    During the annual harvest specification process, the Council and 
NMFS must apportion the flathead sole, rock sole, and yellowfin sole 
TAC according to specific regulatory requirements. Regulations require 
that the TACs for flathead sole, rock sole, and yellowfin sole be 
assigned to three broad categories: The CDQ Program, an incidental 
catch allowance, and the Amendment 80 Program and other non-Amendment 
80 Program participants.
    First, regulations require that NMFS reserve 10.7 percent of the 
TAC for each of these species to the CDQ Program (see regulations at 
Sec. Sec.  679.20(b)(1)(ii)(C) and 679.31). The CDQ Program is an 
economic development program associated with federally managed 
fisheries in the BSAI. The CDQ Program is defined as a catch share 
program because it provides an exclusive harvest privilege (i.e., a CDQ 
allocation) to a specific fishery participant (i.e., a CDQ group) for 
its exclusive use. The CDQ Program allocates a portion of commercially 
important BSAI groundfish species, including flathead sole, rock sole, 
and yellowfin sole, to the six non-profit CDQ groups. The preamble to 
the proposed rule and Section 1.6.1 of the RIR/IRFA prepared for this 
action provide additional detail on the CDQ allocations of flathead 
sole, rock sole, and yellowfin sole to the CDQ Program as a whole, and 
to each CDQ

[[Page 56673]]

group. Currently, the six CDQ groups harvest their flathead sole, rock 
sole, and yellowfin sole CDQ allocations through contracts with 
Amendment 80 and non-Amendment 80 harvesting partners. Although the CDQ 
groups vary individually in the degree to which they harvest their 
flathead sole, rock sole, and yellowfin sole CDQ allocations, the six 
CDQ groups have not collectively fully harvested their allocations in 
recent years, as described in the preamble of the proposed rule and in 
Section 1.6.1 of the RIR/IRFA.
    Second, the remaining TAC for each of these species is reduced by 
an incidental catch allowance (ICA) to account for incidental catch of 
flathead sole, rock sole and yellowfin sole by non-CDQ and non-
Amendment 80 Program participants (see regulations at Sec. Sec.  
679.20(a)(8) and (10)). For the purposes of this proposed action, 
incidental catch refers to the flatfish caught and retained while 
targeting another species or species group. For example, NMFS must 
accommodate incidental catch of yellowfin sole in the Bering Sea 
pollock fishery by including an amount in the ICA that will accommodate 
incidental catch in that fishery; NMFS must also add an amount to the 
yellowfin sole ICA to accommodate incidental catch in all other non-CDQ 
and non-Amendment 80 fisheries.
    Third, the remainder of the TAC is assigned to Amendment 80 Program 
and non-Amendment 80 Program participants for each species (see Table 
33 to part 679). The yellowfin sole TAC remaining after establishing 
the CDQ reserve and the ICA is apportioned between the Amendment 80 
sector and the BSAI trawl limited access sector (i.e., non-Amendment 80 
trawl vessels) according to a specific formula that varies with the 
abundance of yellowfin sole (see Table 34 to part 679 for additional 
detail). The following section describes the Amendment 80 Program that 
receives most of the TACs for flathead sole, rock sole, and yellowfin 
sole and would benefit from this final rule.
    Amendment 80 to the BSAI FMP was implemented in 2008 with a final 
rule published in 2007 (72 FR 52668, September 14, 2007) and is 
commonly known as the Amendment 80 Program. Among other measures, the 
Amendment 80 Program authorized the allocation of six BSAI groundfish 
species to trawl catcher/processors that are not specifically 
authorized to conduct directed fishing for Bering Sea pollock under the 
American Fisheries Act of 1998 (Pub. L. 105-227, Title II of Division 
C). The Amendment 80 Program encourages the formation of cooperatives 
and the development of cooperative fishing practices to reduce 
discards, reduce bycatch, and improve the value of Amendment 80 species 
harvests. The final rule implementing Amendment 80 provides additional 
detail on the Amendment 80 Program.
    Although the Amendment 80 Program has met many of its harvest 
goals, Amendment 80 cooperatives have found it difficult to predict the 
amount of flathead sole, rock sole, and yellowfin sole that can be 
taken when specifically targeting those species, while ensuring 
adequate cooperative quota (CQ) remains to accommodate incidental catch 
of these species (e.g., an Amendment 80 cooperative must ensure that it 
has adequate yellowfin sole CQ to accommodate both a targeted yellowfin 
sole fishery and all incidental harvest of yellowfin sole in all other 
BSAI fisheries). The preamble of the proposed rule and Section 1.5.3 of 
the RIR/IRFA prepared for this action provide additional detail on 
specific conditions that can constrain the full use of a cooperative's 
flathead sole, rock sole, and yellowfin sole CQ.
    The factors that limit Amendment 80 cooperatives from fully 
harvesting their allocations also apply to the CDQ groups. Both 
Amendment 80 vessels and non-Amendment 80 vessels fishing CDQ 
allocations are affected by the same uncertain operational conditions 
(e.g., difficultly predicting harvest rates of flatfish in target and 
non-target fisheries), unpredictable environmental conditions, and 
market conditions that can limit harvest. Recent harvests of flathead 
sole, rock sole, and yellowfin sole by CDQ groups and Amendment 80 
cooperatives have been substantially below the TACs for those species, 
as described in the preamble of the proposed rule and Sections 1.5 and 
1.6 of the RIR/IRFA. This indicates that existing management measures 
applicable to Amendment 80 vessels and non-Amendment 80 vessels fishing 
CDQ allocations may not provide the flexibility needed to allow more 
complete harvest.
    This final rule provides additional flexibility to existing 
management practices and is appropriate because CDQ groups and 
Amendment 80 cooperatives are participating in catch share fisheries 
that are capable of limiting their overall harvests within specific 
catch limits. In addition, CDQ groups and Amendment 80 cooperatives are 
subject to strict management controls that prohibit fishing beyond 
these catch limits (see the preamble of the proposed rule for 
additional detail).
    This action is also intended to preserve the Council's and NMFS' 
ability to consider a broad range of factors when determining how much 
flexibility to provide CDQ groups and Amendment 80 cooperatives through 
the annual harvest specifications process. For example, the Council 
could recommend, and NMFS could propose, setting the ABC reserve below 
the ABC surplus for flathead sole, rock sole, and yellowfin sole to 
account for any management uncertainty as a precautionary measure. 
Amendment 105 and this final rule promote the Council's and NMFS' 
ability to ensure a transparent annual harvest specifications process 
and articulate the criteria by which the Council and NMFS are making 
those decisions. This action is designed to provide the tools necessary 
to maximize the sustainable harvest of flathead sole, rock sole, and 
yellowfin sole, in order to achieve the optimum yield in the BSAI 
groundfish fisheries.
Implementation of This Action
    This final rule establishes an accounting methodology to provide 
CDQ groups and Amendment 80 cooperatives with additional opportunities 
to fully harvest flathead sole, rock sole, or yellowfin sole 
allocations, while ensuring ABCs cannot be exceeded. Amendment 105 and 
its implementing regulations establish regulatory limits to ensure that 
the individual ABCs for flathead sole, rock sole, and yellowfin sole 
will not be exceeded, while creating the opportunity for a more 
complete harvest of one or more of these flatfish species. Although an 
individual TAC for these species (not ABC) may be exceeded, this action 
establishes a regulatory mechanism designed to prevent the sum of all 
TACs for flathead sole, rock sole, and yellowfin sole from being 
exceeded, thereby ensuring the sum of BSAI groundfish TACs does not 
exceed 2 million mt. This final rule defines new terms to provide the 
flexibility needed to provide more harvest opportunities for flathead 
sole, rock sole, and yellowfin sole--the ABC surplus, ABC reserve, CDQ 
ABC reserve, Amendment 80 ABC reserve, and Flatfish Exchange. This 
final rule also describes the process CDQ groups and Amendment 80 
cooperatives would use to access the CDQ or Amendment 80 ABC reserves.
    This final rule defines the ABC surplus for flathead sole, rock 
sole, and yellowfin sole in the BSAI as the difference between each 
species' annual ABC and TAC. Under this final rule, the ABC surplus 
would be specified in the annual harvest specifications. Under

[[Page 56674]]

this final rule, the Council continues to set the OFLs, ABCs, and TACs, 
and allocations of flathead sole, rock sole, and yellowfin sole in the 
annual harvest specifications process. And once those amounts are 
determined, the annual harvest specifications would also specify an ABC 
surplus for each flatfish species. The ABC surplus would represent the 
maximum additional amount of flathead sole, rock sole or yellowfin sole 
that could be harvested above the TAC. However, the actual amount 
available for harvest would be the ABC reserve, which can be equal to 
or less than the ABC surplus.
    This final rule defines ABC reserve flathead sole, rock sole, and 
yellowfin sole in the BSAI as an amount equal to, or less than, the ABC 
surplus, depending on whether the Council and NMFS reduce the surplus 
for social, economic, or ecological considerations during the 
determination of the annual harvest specifications. The ABC reserve 
would be set after consultation with the Council. Unless the Council 
recommends otherwise, or NMFS determines there is a need to set the ABC 
reserve below the ABC surplus, NMFS would set the ABC reserve equal to 
the ABC surplus for each species. Setting the ABC reserve as a portion 
of the ABC surplus, or equal to the ABC surplus, would ensure that the 
total amount of each species that is accessible would not exceed the 
ABC. The Council or NMFS could choose to establish a precautionary 
buffer to accommodate uncertainty in harvests, or to address a range of 
socioeconomic considerations. For example, the Council may be concerned 
that setting an ABC reserve for a given species at a specific harvest 
level could increase supply, and thereby reduce demand and reduce the 
ex-vessel value of that flatfish species. These effects could affect 
CDQ groups, Amendment 80 cooperatives, and other fishery participants 
differently. The Council and NMFS may evaluate these socioeconomic 
considerations when setting the ABC reserve. The specific 
recommendation to set an ABC reserve below the ABC surplus for a 
specific flatfish species would be described in the annual harvest 
specifications. Once the ABC reserve is identified for a flatfish 
species, the ABC reserve for that flatfish species is then apportioned 
among CDQ groups and Amendment 80 cooperatives. NMFS publishes the 
allocation of ABC reserve available to CDQ groups and Amendment 80 
cooperatives in the proposed and final harvest specifications.
    This final rule defines the CDQ ABC reserve as 10.7 percent of the 
amount of the flathead sole, rock sole, or yellowfin sole ABC reserve 
that is allocated among CDQ groups as annually calculated according to 
the methods described at Sec.  679.31(b)(4). The amount of the ABC 
reserve assigned as the CDQ ABC reserve is the same as the proportion 
of the TAC available to the CDQ Program.
    This final rule defines the Amendment 80 ABC reserve as the amount 
of the flathead sole, rock sole, or yellowfin sole ABC reserve that 
remains for each species after designating the amount assigned to the 
CDQ ABC reserves. Therefore, the Amendment 80 ABC reserve is 89.3 
percent of the amount of the flathead sole, rock sole, or yellowfin 
sole ABC reserve. The Amendment 80 ABC reserve would be allocated among 
Amendment 80 cooperatives annually as calculated according to the 
methods described at Sec.  679.91(i)(2).
    This final rule also establishes the method, a Flatfish Exchange, 
for CDQ groups and Amendment 80 cooperatives to exchange unused CDQ 
allocations for a proportion of the CDQ ABC reserve, or unused 
Amendment 80 cooperative CQ for a proportion of the Amendment 80 ABC 
reserve. This final rule requires that a CDQ group or an Amendment 80 
cooperative submit a Flatfish Exchange Application to NMFS. That 
application must be approved by NMFS, and revised TACs must be 
published in the Federal Register, before unused CDQ or CQ would be 
exchanged for a portion of its CDQ ABC reserve or Amendment 80 reserve. 
NMFS' approval of a Flatfish Exchange Application is necessary to 
ensure that ABCs are not exceeded. NMFS has the authority to disapprove 
an application if it is likely that an ABC will be exceeded.
    This final rule defines a Flatfish Exchange in Sec.  679.2. Each 
Flatfish Exchange is a transfer of unused CDQ, or Amendment 80 CQ, of 
flathead sole, rock sole, or yellowfin sole in the BSAI for an 
equivalent amount (in metric tons) of CDQ ABC reserve or Amendment 80 
ABC reserve, respectively, of flathead sole, rock sole, or yellowfin 
sole in the BSAI, as described in a notice of adjustment or 
apportionment in the Federal Register. This final rule establishes 
regulations to describe the Flatfish Exchange Application, and 
application approval process. NMFS will process any completed Flatfish 
Exchange Application submitted by a CDQ group or Amendment 80 
cooperative. The Flatfish Exchange Application must specify the amounts 
of flathead sole, rock sole, and yellowfin sole to be exchanged, and 
certify the information submitted is true, correct, and complete. The 
specific requirements of the Flatfish Exchange Application are provided 
on the form posted at the Alaska Region Web site: http://alaskafisheries.noaa.gov. All Flatfish Exchange Applications must be 
submitted electronically through the Alaska Region Web site: http://alaskafisheries.noaa.gov.
    NMFS' approval of a Flatfish Exchange Application is required prior 
to the use of the CDQ or CQ subject to the Flatfish Exchange. NMFS will 
approve the Flatfish Exchange Application if: (1) The CDQ group or 
Amendment 80 cooperative exchanging flathead sole, rock sole, or 
yellowfin sole has sufficient CDQ ABC reserves or Amendment 80 ABC 
reserves of the flatfish species for which it is requesting to increase 
its CDQ or CQ; (2) the CDQ group or Amendment 80 cooperative requesting 
the exchange of flathead sole, rock sole, yellowfin sole exchanges an 
equal amount of unused CDQ allocation or unused CQ; and (3) the CDQ 
group or Amendment 80 cooperative has not already received three 
Flatfish Exchanges. Any unused CDQ allocation can be exchanged only for 
CDQ ABC reserve, and unused CQ can be exchanged only for Amendment 80 
ABC reserve. Furthermore, a CDQ group can submit a Flatfish Exchange 
Application only for an amount of CDQ ABC reserve assigned to that CDQ 
group, and an Amendment 80 cooperative can submit a Flatfish Exchange 
Application only for an amount of Amendment 80 ABC reserve assigned to 
that Amendment 80 cooperative.
    This final rule requires that no Flatfish Exchange takes effect 
until notification has been published in the Federal Register with a 
statement of the findings on which the apportionment or adjustment is 
based. This provision provides clear notification to the public and the 
affected CDQ group or Amendment 80 cooperative that the Flatfish 
Exchange Application has been approved and displays the resulting 
adjustment in CDQ ABC reserve and CDQ allocation for that CDQ group, or 
the resulting adjustment in Amendment 80 ABC reserve and CQ for that 
Amendment 80 cooperative. An approved Flatfish Exchange is effective on 
the date of publication of the notice of adjustment or apportionment in 
the Federal Register.
    No Flatfish Exchange can result in an ABC reserve being exceeded 
because NMFS must consider flathead sole, rock sole, and yellowfin sole 
catch prior to any Flatfish Exchange approval. This final rule ensures 
that the ABC for each flatfish species is no more likely to be exceeded 
than in the absence of Amendment 105. This final rule limits

[[Page 56675]]

a CDQ group or Amendment 80 cooperative to no more than three Flatfish 
Exchanges during a calendar year to limit the administrative burden 
associated with Flatfish Exchanges, while still providing adequate 
opportunity for additional harvest opportunities.

Changes From the Proposed Rule

    NMFS made one change to this final rule in response to public 
comments. NMFS removed the proposed regulations at Sec.  679.5(s)(7) to 
require each Amendment 80 cooperative that receives CQ to submit a 
Preliminary Amendment 80 Cooperative Flatfish Exchange Report to the 
Council by December 1 each year. As described on page 36714 of the 
preamble to the proposed rule (June 30, 2014, 79 FR 36702), NMFS 
proposed to require Amendment 80 cooperatives to annually submit a 
report reviewing the cooperative's use of Amendment 80 ABC reserve for 
flathead sole, rock sole, and yellowfin sole.
    As proposed, each Amendment 80 cooperative would have been required 
to report (1) the number of vessels used to harvest its CQ, (2) the 
number of Flatfish Exchanges and dates those exchanges were approved, 
(3) the types of and amounts of CQ and Amendment 80 ABC reserves 
utilized, and (4) the dates, types, and amounts of inter-cooperative CQ 
transfers. As described in the response to Comment 8, NMFS already 
collects each data element of the proposed reporting requirement and 
could provide the information to the Council and the public. NMFS has 
removed the requirement for each Amendment 80 cooperative to submit a 
Preliminary Amendment 80 Cooperative Flatfish Exchange Report in this 
final rule because it would be an unnecessary reporting burden on 
Amendment 80 cooperatives.
    NMFS will be able to provide the information proposed in the 
Preliminary Amendment 80 Cooperative Flatfish Exchange Report to the 
Council at its December Council meeting prior to the Council making 
recommendations for ABC, ABC surplus, and ABC reserve for flathead 
sole, rock sole, and yellowfin sole. This information will allow the 
Council to assess the use of Flatfish Exchanges and CQ, and weigh the 
potential socioeconomic impact of Flatfish Exchanges before 
establishing the ABC reserve for flathead sole, rock sole, and 
yellowfin sole. See the response to Comment 8 for additional detail.

Comments and Responses

    During the public comment periods for the Notice of Availability 
for Amendment 105 and the proposed rule to implement Amendment 105, 
NMFS received five comment letters from three unique persons (two from 
different members of the public and three from the same industry 
representative) that contained thirteen substantive comments. NMFS' 
responses to these comments are presented below.
    Comment 1: One commenter expressed support for this action.
    Response: NMFS acknowledges this comment.
    Comment 2: The commenter expressed general disapproval with 
fisheries management.
    Response: NMFS acknowledges this comment.
    Comment 3: One commenter suggested that this action would result in 
overfishing in this fishery and adversely affect marine mammals.
    Response: NMFS disagrees. Sections 1.5.1 and 1.6.1 of the RIR 
prepared for this action and the background section of the preamble to 
the proposed rule note that the flatfish stocks are not overfished and 
overfishing is not occurring in BSAI groundfish fisheries. The Council 
typically recommends, and NMFS implements, flatfish TACs that are lower 
than the ABCs. Moreover, flatfish catch is consistently below TAC for 
both the Amendment 80 sector and the CDQ fisheries for reasons 
described in more detail in the RIR/IRFA prepared for this action (See 
ADDRESSES). This final rule will provide CDQ groups and Amendment 80 
cooperatives with additional opportunities to fully harvest flathead 
sole, rock sole, or yellowfin sole allocations, while ensuring ABCs for 
each of those species cannot be exceeded. This final rule will not 
affect the sustainability or catch levels of groundfish in the BSAI, 
because the fishery will continue to be managed under the current 
harvest specifications process. Similarly, this final action will 
generally improve the likelihood of achieving and maintaining, on a 
continuing basis, the optimum yield (OY) of the BSAI groundfish 
fisheries, to the extent that it provides an opportunity for increased 
use of available TAC. This action will not increase the likelihood that 
ABCs or the 2 million mt OY limit for the BSAI groundfish fisheries 
would be exceeded.
    NMFS and the Secretary of Commerce have determined that fishing 
activities conducted under this rule would have no adverse impact on 
marine mammals. As described in the Categorical Exclusion (See 
ADDRESSES) prepared for this action, Amendment 105 and its implementing 
regulations make only minor revisions to the existing regulations which 
will have no effects on marine mammals beyond those already expected 
from the BSAI groundfish fisheries as described in the Harvest 
Specifications EIS and SIR (See ADDRESSES).
    Comment 4: This action should only be implemented if it is paired 
with regulations that strengthen accountability and enforcement for the 
participants that benefit from the flatfish flexibility program.
    Response: NMFS disagrees that additional monitoring and enforcement 
regulations are needed to ensure compliance with Amendment 105. As 
described in this preamble, NMFS prohibits any CDQ group or Amendment 
80 cooperative from exceeding its allocation of CDQ or CQ (see 
regulations at Sec.  679.7(d)(3) and (o)(4)(iv)). Moreover, vessels 
harvesting CDQ and CQ are already subject to 100% observer coverage 
which includes at least two observers for each day that the vessel is 
used to catch, process, or receive groundfish harvested in a federally 
managed or parallel groundfish fishery (see regulations at Sec.  
679.51(a)(2)(vi)(C)). Vessels harvesting CDQ and CQ are also subject to 
additional monitoring and enforcement provisions, including the use of 
vessel monitoring systems, at-sea scales, and daily reporting 
requirements (see regulations at Sec. Sec.  679.51(a) and 679.5(n) and 
(s)).
    As noted in this preamble, each Flatfish Exchange must be approved 
by NMFS and published in the Federal Register prior to any transfer 
(see regulations at Sec.  679.4(p)). NMFS will have the authority to 
disapprove an application if NMFS determines it is likely that the CDQ 
group or Amendment 80 cooperative does not have (1) an adequate amount 
of unused CDQ or CQ remaining, or (2) the CDQ group or Amendment 80 
cooperative does not have adequate ABC reserve remaining. NMFS will 
review each Flatfish Exchange Application and consider approval or 
disapproval in light of incidental catch levels occurring in other 
groundfish fisheries. NMFS will not approve any Flatfish Exchange that 
could result in exceeding an ABC or ABC reserve for a species, though 
such a situation is highly unlikely given methods in place to track 
harvest of BSAI groundfish.
    Comment 5: The proposed rule states that the ABC reserve would be 
set after consultation with the Council or could be reduced if NMFS 
determines there is a need to set the ABC reserve below the

[[Page 56676]]

ABC surplus. The Council motion and RIR prepared for this action did 
not contemplate that NMFS could independently determine ABC reserve 
levels. While NMFS may have a legitimate need to set the ABC reserve 
below the ABC surplus, we encourage NMFS to work with Amendment 80 
cooperatives to address any concerns it has with setting the ABC 
reserve.
    Response: NMFS intends to coordinate and consult with the Council 
to determine the appropriate level of the ABC reserve during the annual 
specifications process. NMFS anticipates that it can effectively 
communicate with Amendment 80 cooperatives, CDQ groups, and the Council 
to determine the appropriate ABC reserve. However, NMFS has the 
authority and responsibility to ensure that ABCs are not exceeded. This 
authority and responsibility is included in the FMP and regulations at 
Sec.  679.20. Therefore, NMFS will not modify this final rule to 
preclude the ability for NMFS to set an ABC reserve at a level that 
differs from the one recommended by the Council if NMFS determines that 
a different ABC reserve is necessary and appropriate.
    The FMP and its implementing regulations require NMFS, after 
consultation with the Council, to specify annually the TAC for each 
target species category. Regulations at Sec.  679.20(c)(1) further 
require NMFS to publish proposed harvest specifications in the Federal 
Register and solicit public comments on proposed annual TACs and 
apportionments thereof, prohibited species catch allowances, prohibited 
species quota reserves established by Sec.  679.21, seasonal allowances 
of pollock, Pacific cod, and Atka mackerel TAC, American Fisheries Act 
allocations, Amendment 80 allocations, and CDQ reserve amounts 
established by Sec.  679.20(b)(1)(ii). Under regulations at Sec.  
679.20(c)(3), NMFS publishes the final harvest specifications after (1) 
considering comments received within the comment period, (2) consulting 
with the Council at its annual December meeting, and (3) considering 
information presented in the Supplementary Information Report that 
assesses the need to prepare a Supplemental Alaska Groundfish Harvest 
Specifications Final Environmental Impact Statement and the final Stock 
Assessment and Fishery Evaluation reports prepared for the BSAI 
groundfish fisheries. NMFS will approve the Council's recommended OFLs, 
ABCs, and TACs if NMFS finds them consistent with the FMP, MSA, and 
other applicable law. However, NMFS may determine that a Council 
recommendation, including a Council recommendation for an ABC reserve, 
is not consistent with the FMP, MSA, and other applicable law. 
Therefore, removing a specific regulatory provision that would allow 
NMFS to establish an ABC reserve that may differ from the one 
recommended by the Council would be contrary to existing authority 
established by the MSA, FMP, and regulations. The final 2014 and 2015 
harvest specifications provide additional detail on this process (79 FR 
12108, March 4, 2014).
    Comment 6: A representative for Amendment 80 vessels supported the 
rule and noted that the rule will provide CDQ groups and Amendment 80 
vessels with the same harvesting flexibility, which he believes will 
result in greater demand for and additional harvesting of CDQ quota.
    Response: NMFS agrees that CDQ groups would have the same 
opportunity as the Amendment 80 cooperatives to access the ABC surplus 
and ABC reserve, and consequently would also be able to benefit from 
the flexibility in choice of target flatfish afforded by Amendment 105 
and its implementing regulations.
    NMFS acknowledges the commenter's assertion that this action will 
result in greater harvesting of CDQ quota of flatfish. NMFS cannot say, 
however, whether this will actually occur because, as noted in is 
section 1.8.2.2 of the RIR/IRFA prepared for this action, it is 
impossible to quantitatively assess the impacts of the this action on 
the values of CDQ allocations of flathead sole, rock sole, and 
yellowfin sole. A qualitative assessment suggests that as the supply of 
these three species increases for the Amendment 80 sector, the demand 
for leasing CDQ flatfish quota would decrease, along with the lease 
rates. The risk of this decline may exist only in the short term 
because, over the longer term, the demand for CDQ flatfish quota is 
likely to increase as more efficient vessels specifically designed for 
participation in the BSAI trawl fisheries replace the aging fleet, and 
Amendment 80 allocations are fully utilized. As Amendment 80 vessels 
increase their efficiency, they will continue to seek other fishing 
opportunities, such as leasing CDQ quota. Further, while the CDQ groups 
have leased their flatfish quota to Amendment 80 vessels to harvest, 
other partners have recently entered the market, which may lead to 
increased competition for CDQ leases.
    As noted on page 39708 of the proposed rule, this action is not 
intended to resolve the complex issues that have constrained the CDQ 
groups and Amendment 80 cooperatives from fully harvesting their 
flatfish allocations. This proposed action is intended to provide the 
flexible management necessary to mitigate a diverse range of conditions 
that may limit catch of flathead sole, rock sole, and yellowfin sole. 
The Council and NMFS expect that the regulatory tools implemented in 
this final rule will promote increased harvest of CDQ and CQ 
allocations.
    Comment 7: The preamble suggests that NMFS is in the process of 
interpreting Magnuson-Stevens Act confidentiality provisions, but that 
the current interpretation limits disclosure of certain information. 
These provisions were implemented by Congress to protect the 
confidentiality of data submitters so that business or trade secrets 
are not revealed. We feel that limiting data disclosure to aggregations 
of three vessels or more adequately protects the interest of submitters 
and provides information to the Council to assess the effects of this 
rule.
    Response: NMFS acknowledges this comment and notes that this final 
rule would not require Amendment 80 cooperatives to submit confidential 
information to the Council or the public. Moreover, NMFS will not 
disclose data to the Council or the public that would be considered 
confidential, consistent with section 402(b) of the Magnuson-Stevens 
Act and applicable agency regulations and policies regarding any 
confidential information. The scope of Amendment 105 and this rule do 
not modify existing data disclosure procedures.
    Comment 8: All of the information to be submitted in the 
Preliminary Amendment 80 Flatfish Exchange Report is available to NMFS. 
NMFS could therefore provide the Council with this information at its 
December meeting instead of requiring Amendment 80 cooperatives to 
submit a separate report to the Council by December 1 of each year. The 
proposed annual reporting requirement creates an unnecessary reporting 
burden, increases costs for Amendment 80 cooperatives, and should be 
removed.
    Response: NMFS agrees and has removed from the final rule the 
requirement for Amendment 80 cooperatives to submit a Preliminary 
Amendment 80 Flatfish Exchange Report to the Council by December 1 
every year. See the ``Changes from the Proposed Rule'' section above in 
this preamble for additional detail.
    Comment 9: Proposed regulations at Sec.  679.5(s)(7)(iii) describe 
information requirements for the Preliminary Amendment 80 Flatfish 
Exchange Report as all of the information required

[[Page 56677]]

on the Preliminary Amendment 80 Flatfish Exchange Report form and all 
required additional documentation. The form was not available for 
review, so it is difficult to comment on this proposed regulation. 
However, the requirements seem vague and we request that the final rule 
clarify the reporting requirements.
    Response: NMFS provided the form to the commenter and the public 
for review prior to the end of the public comment period on this 
proposed rule. However, NMFS has removed the Preliminary Amendment 80 
Flatfish Exchange Report and the accompanying form from this final rule 
(see Comment 8). Therefore, this comment is no longer applicable to 
this final rule.
    Comment 10: Block B of the Preliminary Amendment 80 Flatfish 
Exchange Report form requires information about Amendment 80 Flatfish 
Exchanges. The headings in Block B are titled: ``Species Exchanged Into 
Cooperative Quota'' and ``Species Exchanged Out of Reserves''. These 
headings are asking for the same information. As described in the 
proposed regulations, an Amendment 80 cooperative would be exchanging 
CQ of one species for CQ of another species. The current form confuses 
these two exchanges and should be corrected.
    Response: NMFS acknowledges this comment and notes that this final 
rule does not require Amendment 80 cooperatives to provide a 
Preliminary Amendment 80 Flatfish Exchange Report, as described in more 
detail in the response to Comment 8. Therefore, this comment is no 
longer applicable to this final rule.
    Comment 11: Block A of the Flatfish Exchange Application form asks 
whether the exchange is CDQ or Amendment 80. Block B also asks for the 
same information in both the ``Species Exchanged In'' and ``Species 
Exchanged Out'' columns. This suggests that an Amendment 80 cooperative 
may exchange CDQ for Amendment 80 CQ. We do not believe this was the 
intent of the proposed rule, and should be corrected. We believe it's 
only necessary to state whether the exchange is CDQ or Amendment 80 in 
Block A.
    Response: NMFS agrees and has revised Block A and Block B of the 
Flatfish Exchange Application form accordingly.
    Comment 12: The Flatfish Exchange Application form instructions 
state that the exchange ``will be exchanged as of the date NMFS 
approves the exchange application''. The instructions also state ``No 
exchange, adjustment, apportionment of flatfish may take effect until 
NMFS publishes notification in the Federal Register''. NMFS should 
clarify if the ``date NMFS approves the exchange application'' is the 
same date that ``NMFS publishes notification in the Federal Register.'' 
Also, NMFS should clarify the process they will follow to ensure there 
is no delay in reviewing and approving the Flatfish Exchange 
Application.
    Response: NMFS agrees and has revised the Flatfish Exchange 
Application form instructions to clarify that a Flatfish Exchange is 
effective on the date that NMFS publishes notification in the Federal 
Register. Flatfish Exchanges are not effective upon approval of a 
Flatfish Exchange Application. As described on page 36712 of the 
preamble to the proposed rule, Section 1.4.2 of the RIR/IRFA prepared 
for this action, and this final rule preamble, each Flatfish Exchange 
Application received by NMFS must be approved by NMFS, and revised TACs 
must be published in the Federal Register, before unused CDQ or CQ 
could be exchanged for a portion of its CDQ ABC reserve or Amendment 80 
reserve. NMFS' approval of a Flatfish Exchange Application is necessary 
to ensure that ABC's are not exceeded. NMFS will disapprove any 
application that could result in exceeding an ABC or ABC reserve for a 
species. NMFS will make every effort to review each Flatfish Exchange 
Application as expeditiously as possible while ensuring that it fully 
considers the requested exchange to ensure an ABC or ABC reserve to be 
exceeded.
    Comment 13: The commenter suggested that the proposed rule did not 
meet plain English standards for clearly written regulations.
    Response: NMFS disagrees. The preamble to proposed rule used plain 
language to describe the proposed regulatory text. The preamble to the 
proposed rule includes a Summary of Regulatory Changes proposed in a 
bulleted list on page 36709 that provides a broad overview of the 
proposed regulatory changes. NMFS provided a thorough description of 
the rationale for all the relevant components and effects of this 
action as clearly as possible in light of the complex nature of fishery 
management programs. The proposed regulations, the preamble to the 
proposed rule, and this final rule are subject to an extensive review 
process, including legal review, to ensure that documents are 
consistent the Magnuson-Stevens Act and other applicable law including 
Executive Orders (E.O.) 12866 and12988. These two Executive Orders 
emphasize the need for plain language. For example E.O. 12866 requires 
that regulations be ``simple and easy to understand, with the goal of 
minimizing uncertainty and litigation . . .'' (Sec. 1, Par. (b)(12)) 
and E.O. 12988 requires that each regulation specify its effect ``in 
clear language''. (Sec. 3 Par. (b)(2)).

Summary of Regulatory Changes

    Amendment 105 and this final rule modify existing regulatory text 
at 50 CFR part 679 as follows:
     Add definitions for ``ABC reserve,'' ``ABC surplus,'' 
``Amendment 80 ABC reserve,'' ``CDQ ABC reserve,'' and ``Flatfish 
Exchange'' to Sec.  679.2.
     Add Sec.  679.4(p) to establish the Flatfish Exchange 
Application requirements and annual limitations on the number of 
Flatfish Exchanges.
     Add Sec.  679.20(b)(1)(iii) to establish the ABC reserves, 
CDQ ABC reserves, and Amendment 80 ABC reserves as part of the general 
limitations.
     Revise Sec.  679.20(c)(1)(iv) to include Flatfish Exchange 
specifications in the annual proposed groundfish harvest 
specifications.
     Revise Sec.  679.20(c)(3)(iii) to include Flatfish 
Exchange specifications in the annual final groundfish harvest 
specifications.
     In Sec.  679.31, revise the headings of paragraphs (a) and 
(b) to be consistent with this Amendment 105.
     Add Sec.  679.31(a)(5) to establish the CDQ ABC reserve as 
part of the CDQ allocations.
     Add Sec.  679.31(b)(4) to allocate CDQ ABC reserves among 
CDQ groups.
     Add Sec.  679.31(d) to allow CDQ groups to access the CDQ 
ABC reserves.
     Add Sec.  679.91(i) to establish the Amendment 80 ABC 
reserves as annual harvest privileges allocated to Amendment 80 
cooperatives, and to allow Amendment 80 cooperatives to access the 
Amendment 80 ABC reserves.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendment 
105 to the BSAI FMP is necessary for the conservation and management of 
the BSAI groundfish fishery and that it is consistent with the BSAI 
FMP, the Magnuson-Stevens Act, and other applicable laws.

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 final regulatory flexibility 
analysis (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

[[Page 56678]]

explain the actions a small entity is required to take to comply with a 
rule or group of rules. The preamble to the proposed rule and this 
final rule serve 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 at the following Web site: http://alaskafisheries.noaa.gov.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

Final Regulatory Flexibility Analysis

    Section 604 of the Regulatory Flexibility Act (RFA) requires that, 
when an agency promulgates a final rule under section 553 of Title 5 of 
the U.S. Code, after being required by that section, or any other law, 
to publish a general notice of proposed rulemaking, the agency shall 
prepare a final regulatory flexibility analysis.
    Section 604 describes the contents of a FRFA: (1) A statement of 
the need for, and objectives of, the rule; (2) a statement of the 
significant issues raised by the public comments in response to the 
initial regulatory flexibility analysis, a statement of the assessment 
of the agency of such issues, and a statement of any changes made in 
the proposed rule as a result of such comments; (3) the response of the 
agency to any comments filed by the Chief Counsel for Advocacy of the 
Small Business Administration in response to the proposed rule, and a 
detailed statement of any change made to the proposed rule in the final 
rule as a result of the comments; (4) a description of and an estimate 
of the number of small entities to which the rule will apply or an 
explanation of why no such estimate is available; (5) a description of 
the projected reporting, recordkeeping and other compliance 
requirements of the rule, including an estimate of the classes of small 
entities which will be subject to the requirement and the type of 
professional skills necessary for preparation of the report or record; 
and (6) a description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    The ``universe'' of entities to be considered in a FRFA generally 
includes only those small entities that can reasonably be expected to 
be directly regulated by the final rule. If the effects of the rule 
fall primarily on a distinct segment of the industry, or portion 
thereof (e.g., user group, gear type, geographic area), that segment 
would be considered the universe for purposes of this analysis.
    The Small Business Administration (SBA) has established size 
standards for all major industry sectors in the U.S., including 
commercial finfish harvesters (NAICS code 114111), commercial shellfish 
harvesters (NAICS code 114112), other commercial marine harvesters 
(NAICS code 114119), for-hire businesses (NAICS code 487210), marinas 
(NAICS code 713930), seafood dealers/wholesalers (NAICS code 424460), 
and seafood processors (NAICS code 311710). A business primarily 
involved in finfish harvesting is classified as a small business if it 
is independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual gross 
receipts not in excess of $20.5 million, for all its affiliated 
operations worldwide. For commercial shellfish harvesters, the same 
qualifiers apply, except the combined annual gross receipts threshold 
is $5.5 million. For other commercial marine harvesters, for-hire 
fishing businesses, and marinas, the same qualifiers apply, except the 
combined annual gross receipts threshold is $7.5 million.
    A business primarily involved in seafood processing is classified 
as a small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual employment, counting all individuals employed on a 
full-time, part-time, or other basis, not in excess of 500 employees 
for all its affiliated operations worldwide. For seafood dealers/
wholesalers, the same qualifiers apply, except the employment threshold 
is 100 employees. In determining a concern's number of employees, SBA 
counts all individuals employed on a full-time, part-time, or other 
basis. This includes employees obtained from a temporary employee 
agency, professional employee organization or leasing concern. SBA will 
consider the totality of the circumstances, including criteria used by 
the IRS for Federal income tax purposes, in determining whether 
individuals are employees of a concern. Volunteers (i.e., individuals 
who receive no compensation, including no in-kind compensation, for 
work performed) are not considered employees. Where the size standard 
is number of employees, the method for determining a concern's size 
includes the following principles: (1) The average number of employees 
of the concern used (including the employees of its domestic and 
foreign affiliates) based upon numbers of employees for each of the pay 
periods for the preceding completed 12 calendar months; (2) part-time 
and temporary employees are counted the same as full-time employees.
Need for and Objectives of This Action
    A statement of the need for, and objectives of, the rule is 
contained in the preamble to this final rule and is not repeated here.
Summary of Significant Issues Raised During Public Comment
    NMFS published a proposed rule on June 30, 2014 (79 FR 36702). An 
initial regulatory flexibility analysis (IRFA) was prepared and 
summarized in the ``Classification'' section of the preamble to the 
proposed rule. The comment period closed on July 30, 2014. NMFS 
received 5 letters of public comment on the proposed rule. These 
comment letters did not address the IRFA or the economic impacts of the 
rule generally. The Chief Counsel for Advocacy of the SBA did not file 
any comments on the proposed rule.
Number and Description of Small Entities Regulated by This Action
    CDQ groups and Amendment 80 cooperatives are directly regulated 
through this final action through their allocations of harvesting 
privileges for flathead sole, rock sole, and yellowfin sole.
    Since 2011, all vessels and companies participating in the 
Amendment 80 sector have been affiliated with one of two Amendment 80 
cooperatives, the Alaska Seafood Cooperative or the Alaska Groundfish 
Cooperative. The IRFA classified all of the entities participating in 
Amendment 80 cooperatives as large entities, either by virtue of their 
own gross revenues or by virtue of their affiliation with other large 
entities through their cooperative membership. The small entity 
determinations reported in the IRFA for this action have been reviewed 
for compliance with recent revisions to Small Business Administration 
thresholds for identifying small entities (79 FR 33647, June 12, 2014). 
No changes in the small entity count analysis were necessary for this 
FRFA.
    The six CDQ groups are all small entities by virtue of their non-
profit

[[Page 56679]]

status. These groups include Aleutian Pribilof Island Community 
Development Association, Bristol Bay Economic Development Corporation, 
Central Bering Sea Fishermen's Association, Coastal Villages Region 
Fund, Norton Sound Economic Development Corporation, and Yukon Delta 
Fisheries Development Association. Each of these groups is organized as 
an independently owned and operated not-for-profit entity and none is 
dominant in its field; consequently, each is a ``small entity'' under 
the RFA.
    All six CDQ groups annually receive groundfish, halibut, and crab 
CDQ allocations. These groups participate, either directly or 
indirectly, in the commercial harvest of these allocations. 
Commercially valuable allocations include (among others) Alaska 
pollock, Pacific cod, sablefish, Pacific halibut, Greenland turbot, 
Atka mackerel, various flatfish species, as well as king and Tanner 
crab. CDQ groups receive royalties from the successful harvest of CDQ 
by commercial fishing companies, as well as access to employment and 
training opportunities for their communities' residents. Royalties and 
income from CDQ harvesting activities are used to fund economic 
development projects in CDQ communities. In 2011, the six CDQ groups 
earned approximately $311.5 million in royalties (i.e., gross revenues) 
from the harvest of CDQ allocations. CDQ Program activities are 
discussed in detail in Section 1.6 of the RIR/IRFA prepared for this 
action.
Projected Reporting, Recordkeeping, and Other Compliance Requirements
    This action is projected to have a negligible impact on the 
recordkeeping and reporting requirements of CDQ groups (i.e., the 
directly regulated small entities) participating in the BSAI groundfish 
fisheries. The decision to submit a Flatfish Exchange Application is 
entirely voluntary on the part of all affected entities. If a CDQ group 
chooses to submit a Flatfish Exchange Application, it will need to 
submit the information required. The information required in a Flatfish 
Exchange Application is similar to the information already required by 
for transfers of CDQ allocations among CDQ groups (see regulations at 
Sec.  679.5(n)).
Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities
    A FRFA also requires a description of the steps the agency has 
taken to minimize the significant impact on small entities consistent 
with the stated objectives of applicable statutes, including a 
statement of the factual, policy, and legal reasons for selecting the 
alternative (Alternative 3 as modified by Option 1, described below) 
adopted in the final rule and why each of the other significant 
alternatives to the rule considered by the agency that affect the 
economic impact on small entities was rejected. The suite of potential 
actions includes three alternatives and associated options. A detailed 
description of these alternatives and options is provided in Section 
1.4 of the RIR/IRFA prepared for this action.
    Alternative 1 is the status quo, and does not provide additional 
harvesting flexibility for flathead sole, rock sole, or yellowfin sole 
to CDQ groups. Alternative 2 would establish a CDQ ABC reserve for 
flathead sole, rock sole, or yellowfin sole that is allocated among CDQ 
groups equal to 10.7 percent of the ABC surplus for each species. 
Alternative 3 would allow the Council or NMFS to establish a CDQ ABC 
reserve for flathead sole, rock sole, or yellowfin sole that is 
allocated among CDQ groups that may be less than or equal to 10.7 
percent of the ABC surplus for each species after considering 
socioeconomic or biological considerations.
    Alternative 2 is less restrictive than the preferred alternative, 
and thus has fewer adverse impacts on the directly regulated CDQ 
groups. While Alternative 2 may be less restrictive to CDQ groups, 
Alternative 3 as modified by Option 1 was adopted because it provides 
the Council flexibility to address socioeconomic or biological 
considerations during the annual harvest specifications process. In 
order to meet the conservation and management objectives of the 
Magnuson-Stevens Act, the BSAI FMP, and this final action, the Council 
and NMFS may deem it appropriate to set the ABC reserve below the ABC 
surplus to accommodate potential harvests of non-target species greater 
than the incidental catch allowance. Similarly, the Council may 
recommend establishing an ABC reserve less than the ABC surplus to 
accommodate market conditions.
    The Council also considered three options that could apply to 
either Alternative 2 or Alternative 3; however, options 2 and 3 are 
mutually exclusive because Option 2 would not allow participants to 
receive additional yellowfin sole and Option 3 limits the amount (mt) 
of additional yellowfin sole that could be accessed by each 
participant. Option 1 would establish an ABC surplus, ABC reserve, and 
CDQ ABC reserve for flathead sole, rock sole, and yellowfin sole, but 
limit the number of Flatfish Exchanges to no more than three Flatfish 
Exchanges per CDQ group per calendar year. Option 2 would create an ABC 
surplus, ABC reserve, and CDQ ABC reserve only for flathead sole and 
rock sole. Option 3 would limit the maximum amount of the ABC surplus, 
ABC reserve, and CDQ ABC reserve for yellowfin sole available to CDQ 
groups. Options 2 and 3 are more restrictive than Option 1 and provide 
fewer opportunities for CDQ groups to use Flatfish Exchanges to 
maximize their harvests, particularly their harvests of yellowfin sole. 
Therefore, Options 2 and 3 were rejected because those options would 
have more adverse impacts on CDQ groups than the preferred alternative, 
which combines Alternative 3 and Option 1.
    Option 1, which limits CDQ groups to three Flatfish Exchanges 
during a year, is more restrictive than the adoption of Alternative 3 
without the option. Alternative 3 without Option 1 would not limit the 
number of Flatfish Exchanges that a CDQ group could undertake each 
calendar year. However, Alternative 3 as modified by Option 1 was 
selected because it met the objectives of this action while 
establishing limits on the potential administrative burden and costs on 
NMFS of the final action. As explained in Section 1.8.3 of the RIR/IRFA 
prepared for this action, the Council determined and NMFS agreed that a 
maximum of three Flatfish Exchanges per calendar year per CDQ group 
meets the goals and objectives for the final action, does not unduly 
constrain CDQ groups, and reduces administrative burden and costs on 
NMFS. The Flatfish Exchange limits are intended to allow the CDQ groups 
to make an adequate number of exchanges needed to accommodate uncertain 
harvesting conditions throughout the year as described earlier in the 
preamble and in Section 1.6.1 of the RIR/IRFA prepared for this action.

Collection-of-Information Requirements

    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by the Office of Management and Budget (OMB) under OMB Control 
Number 0648-0565. Public reporting burden is estimated to average 30 
minutes for the Flatfish Exchange Application. The estimated response 
times include the time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information.

[[Page 56680]]

    Send comments on these burden estimates or any other aspect of this 
data collection, including suggestions for reducing the burden, to NMFS 
(see ADDRESSES), and by email 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, Reporting and recordkeeping requirements.

    Dated: September 17, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    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.  679.2, add definitions for ``ABC reserve''; ``ABC 
surplus''; ``Amendment 80 ABC reserve''; ``CDQ ABC reserve''; and 
``Flatfish Exchange'' in alphabetical order to read as follows:


Sec.  679.2  Definitions.

* * * * *
    ABC reserve means, for purposes of flathead sole, rock sole, and 
yellowfin sole in the BSAI, an amount, not to exceed the ABC surplus, 
that may be reduced for social, economic, or ecological considerations 
according to Sec.  679.20(b)(1)(iii).
    ABC surplus means, for purposes of flathead sole, rock sole, and 
yellowfin sole in the BSAI, the difference between each species' annual 
ABC and TAC.
* * * * *
    Amendment 80 ABC reserve means the amount of the flathead sole, 
rock sole, or yellowfin sole ABC reserve that remains after designating 
the amount assigned to the CDQ ABC reserve and that is allocated among 
Amendment 80 cooperatives as calculated annually as described at Sec.  
679.91(i)(2).
* * * * *
    CDQ ABC reserve means 10.7 percent of the amount of the flathead 
sole, rock sole, or yellowfin sole ABC reserve that is allocated among 
the CDQ groups as calculated annually as described at Sec.  
679.31(b)(4).
* * * * *
    Flatfish Exchange means the exchange of unused CDQ, or Amendment 80 
CQ, of flathead sole, rock sole, or yellowfin sole in the BSAI for an 
equivalent amount (in metric tons) of CDQ ABC reserve or Amendment 80 
ABC reserve, respectively, for flathead sole, rock sole, or yellowfin 
sole in the BSAI other than the species listed for exchange on the 
Flatfish Exchange Application as described in a notice of adjustment or 
apportionment in the Federal Register.
* * * * *

0
3. In Sec.  679.4, add paragraph (p) to read as follows:


Sec.  679.4  Permits.

* * * * *
    (p) Flatfish Exchange Application. (1) Completed application. NMFS 
will process only completed Flatfish Exchange Applications submitted by 
CDQ groups or Amendment 80 cooperatives.
    (2) Certification. The designated representative must log into the 
Alaska Region Online application Web site and complete an exchange 
application form provided on the Web site. By using the NMFS ID, 
password, and Transfer Key and submitting the Flatfish Exchange 
Application, the designated representative certifies that all 
information submitted is true, correct, and complete.
    (3) Approval. A CDQ group or Amendment 80 cooperative must receive 
NMFS' approval of a Flatfish Exchange Application prior to using the 
CDQ or Amendment 80 CQ subject to the Flatfish Exchange. NMFS will 
approve the Flatfish Exchange Application if:
    (i) The CDQ group has sufficient CDQ ABC reserves of flathead sole, 
rock sole, or yellowfin sole;
    (ii) The Amendment 80 cooperative has sufficient Amendment 80 ABC 
reserves of flathead sole, rock sole, or yellowfin sole;
    (iii) The CDQ group receiving flathead sole, rock sole, or 
yellowfin sole from its CDQ ABC reserve exchanges an equal amount of 
unused CDQ of flathead sole, rock sole, or yellowfin sole, other than 
the species received from its CDQ ABC reserve;
    (iv) The Amendment 80 cooperative receiving flathead sole, rock 
sole, or yellowfin sole from its Amendment 80 ABC reserve exchanges an 
equal amount of unused Amendment 80 CQ of flathead sole, rock sole, or 
yellowfin sole, other than the species received from its Amendment 80 
ABC reserve;
    (v) The CDQ group or Amendment 80 cooperative has not received at 
least three approved Flatfish Exchanges during that calendar year, as 
described at paragraph (p)(5) of this section;
    (vi) Approval of the Flatfish Exchange Application will not cause 
flathead sole, rock sole, or yellowfin sole to exceed an ABC or an ABC 
reserve for that species; and
    (vii) NMFS receives a completed Flatfish Exchange Application from 
a CDQ group or Amendment 80 cooperative during the calendar year for 
which the Flatfish Exchange would be effective, and NMFS can approve 
that Flatfish Exchange Application before the end of the calendar year 
in which the Flatfish Exchange would be effective.
    (4) Notification. (i) No exchange, adjustment, or apportionment of 
flathead sole, rock sole, or yellowfin sole may take effect until a 
notice of adjustment or apportionment has been published in the Federal 
Register with a statement of the findings on which the apportionment or 
adjustment is based.
    (ii) Each NMFS approved Flatfish Exchange is debited as one 
Flatfish Exchange. An approved Flatfish Exchange is effective on the 
date of publication of the notice of adjustment or apportionment in the 
Federal Register.
    (5) CDQ ABC reserve and Amendment 80 ABC reserve exchange 
limitations. Each CDQ group and each Amendment 80 cooperative is 
limited to no more than three Flatfish Exchanges per calendar year.

0
4. In Sec.  679.20:
0
a. Add paragraph (b)(1)(iii); and
0
b. Revise paragraphs (c)(1)(iv) and (c)(3)(iii) to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (b) * * *
    (1) * * *
    (iii) ABC reserves. (A) ABC reserves are annually established for 
flathead sole, rock sole, and yellowfin sole. For each flatfish 
species, the ABC reserve is calculated as an amount less than or equal 
to the ABC surplus. NMFS, after consultation with the Council, may set 
the ABC reserve for flathead sole, rock sole, or yellowfin sole below 
the ABC surplus for that species based on social, economic, or 
ecological considerations.
    (B) CDQ ABC reserves. An amount equal to 10.7 percent of the ABC 
reserves for flathead sole, rock sole, and yellowfin sole will be 
allocated to a

[[Page 56681]]

CDQ ABC reserve. The CDQ ABC reserves will be:
    (1) Calculated during the annual harvest specifications described 
at paragraph (c) of this section, as allocations to CDQ groups; and
    (2) Allocated to each CDQ group as described under Sec.  
679.31(b)(4).
    (C) Amendment 80 ABC reserves. Amendment 80 ABC reserves shall be 
calculated as the ABC reserves described under paragraph (b)(1)(iii)(A) 
of this section as reduced by the CDQ ABC reserves under paragraph 
(b)(1)(iii)(B) of this section. The Amendment 80 ABC reserves will be:
    (1) Calculated during the annual harvest specifications described 
at paragraph (c) of this section, as allocations to Amendment 80 
cooperatives; and
    (2) Allocated to each Amendment 80 cooperative as described under 
Sec.  679.91(i)(2).
* * * * *
    (c) * * *
    (1) * * *
    (iv) BSAI. (A) The proposed harvest specifications will specify for 
up to two fishing years the annual TAC for each target species and 
apportionments thereof, PSQ reserves and prohibited species catch 
allowances, seasonal allowances of pollock, Pacific cod, and Atka 
mackerel TAC (including pollock, Pacific cod, and Atka mackerel CDQ), 
and CDQ reserves.
    (B) The proposed harvest specifications will specify for up to two 
fishing years the ABC surpluses, ABC reserves, CDQ ABC reserves, CDQ 
ABC reserves for each CDQ group, Amendment 80 ABC reserves, and 
Amendment 80 ABC reserves for each Amendment 80 cooperative for 
flathead sole, rock sole, and yellowfin sole.
* * * * *
    (3) * * *
    (iii) BSAI. (A) The final harvest specifications will specify for 
up to two fishing years the annual TAC for each target species and 
apportionments thereof, PSQ reserves and prohibited species catch 
allowances, seasonal allowances of pollock (including pollock, Pacific 
cod, and Atka mackerel CDQ), and CDQ reserves.
    (B) The final harvest specifications will specify for up to two 
fishing years the annual ABC surpluses, ABC reserves, CDQ ABC reserves, 
CDQ ABC reserves for each CDQ group, Amendment 80 ABC reserves, and 
Amendment 80 ABC reserves for each Amendment 80 cooperative for 
flathead sole, rock sole, and yellowfin sole.
* * * * *

0
5. In Sec.  679.31:
0
a. Revise paragraphs (a) heading and (b) heading; and
0
b. Add paragraphs (a)(5), (b)(4), and (d) to read as follows:


Sec.  679.31  CDQ and PSQ reserves, allocations, and transfers.

    (a) CDQ, PSQ, and CDQ ABC reserves. * * *
    (5) CDQ ABC reserves. (See Sec.  679.20(b)(1)(iii)(A))
    (b) Allocations of CDQ, PSQ, and CDQ ABC reserves among the CDQ 
groups. * * *
    (4) Annual allocations of CDQ ABC reserves among the CDQ groups. 
(i) An amount equivalent to 10 percent of the ABC reserve for flathead 
sole, rock sole, and yellowfin sole as determined under the annual 
harvest specifications at Sec.  679.20(c) shall be allocated among the 
CDQ groups based on the CDQ percentage allocations under 16 U.S.C. 
1855(i)(1)(C), unless modified under 16 U.S.C. 1855(i)(1)(H); and
    (ii) An amount equivalent to 0.7 percent of the ABC reserve for 
flathead sole, rock sole, and yellowfin sole as determined under the 
annual harvest specifications at Sec.  679.20(c) shall be allocated 
among the CDQ groups by the panel established in section 305(i)(1)(G) 
of the Magnuson-Stevens Act.
* * * * *
    (d) Accessing CDQ ABC reserves. Each CDQ group may request that 
NMFS approve a Flatfish Exchange to add flathead sole, rock sole, or 
yellowfin sole to its CDQ account in exchange for reducing its CDQ 
account by an equal amount of flathead sole, rock sole, or yellowfin 
sole. CDQ groups may request Flatfish Exchanges by submitting a 
completed Flatfish Exchange Application as described at Sec.  679.4(p).

0
6. In Sec.  679.91, add paragraph (i) to read as follows:


Sec.  679.91  Amendment 80 Program annual harvester privileges.

* * * * *
    (i) Amendment 80 ABC reserves. (1) General. The Regional 
Administrator will determine the Amendment 80 ABC reserves for flathead 
sole, rock sole, and yellowfin sole that will be assigned to the 
Amendment 80 sector as part of the annual harvest specifications 
described at Sec.  679.20(c). Amendment 80 ABC reserves will be further 
allocated to Amendment 80 cooperative(s), as described in paragraph 
(i)(2) of this section.
    (2) Allocation of Amendment 80 ABC reserves to Amendment 80 
cooperatives. The amount of Amendment 80 ABC reserve for each species 
of flathead sole, rock sole, and yellowfin sole assigned to an 
Amendment 80 cooperative is equal to the amount of Amendment 80 QS 
units of that species assigned to that Amendment 80 cooperative by 
Amendment 80 QS holders divided by the total Amendment 80 QS pool for 
that species multiplied by the Amendment 80 ABC reserve for that 
species.
    (3) Accessing Amendment 80 ABC reserves. An Amendment 80 
cooperative may request that NMFS approve a Flatfish Exchange to add 
flathead sole, rock sole, or yellowfin sole CQ to its Amendment 80 CQ 
account in exchange for reducing its Amendment 80 CQ by an equal amount 
of flathead sole, rock sole, or yellowfin sole. An Amendment 80 
cooperative may request Flatfish Exchanges by submitting a completed 
Flatfish Exchange Application as described in Sec.  679.4(p).

[FR Doc. 2014-22568 Filed 9-22-14; 8:45 am]
BILLING CODE 3510-22-P