[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Proposed Rules]
[Pages 13331-13337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5667]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 100201056-0076-01]
RIN 0648-AY65
Fisheries of the Exclusive Economic Zone Off Alaska; Revisions to
Pacific Cod Fishing in the Parallel Fishery in the Bering Sea and
Aleutian Islands Management Area
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 a regulatory amendment that would limit access
of Federally permitted pot and hook-and-line catcher/processors (C/P)
to the Pacific cod fishery in State of Alaska waters adjacent to the
Bering Sea and Aleutian Islands management area (BSAI). The affected
fishery is commonly known as the ``parallel'' fishery. The parallel
fishery occurs off the coast of Alaska, within 3 nautical miles of
shore and is managed by the State of Alaska concurrent with the Federal
pot and hook-and-line fishery for Pacific cod in the BSAI. This
proposed rule would limit access to the parallel fishery for Pacific
cod in three ways. First, it would require that an owner of a Federally
permitted pot or hook-and-line C/P vessel used to catch Pacific cod in
the State of Alaska parallel fishery be issued the same endorsements on
their Federal fisheries permit (FFP) or license limitation program
(LLP) license as currently are required for catching Pacific cod in the
Federal waters of the BSAI. Second, an operator of any Federally
permitted pot or hook-and-line C/P vessel used to catch Pacific cod in
the parallel fishery would also be required to comply with the same
seasonal closures of Pacific cod that apply in the Federal fishery.
Third, an owner of a pot or hook-and-line C/P vessel who surrenders an
FFP would not be reissued a new FFP within the 3-year term of the
permit. These three measures are necessary to limit some C/Ps from
catching a greater amount of Pacific cod in the parallel fishery than
have been allocated to their sector from the BSAI Total Allowable
Catch. Maintaining Pacific cod catch amounts within sector allocations
would also reduce the potential for shortened Pacific cod seasons for
C/Ps
[[Page 13332]]
in the Federal fishery. These three measures also would improve the
coverage of NMFS catch accounting and monitoring requirements on
vessels participating in the parallel fishery. This action is intended
to promote the goals and objectives of the Fisheries Management Plan
for Groundfish of the Bering Sea and Aleutians Islands Management Area,
the Magnuson-Stevens Fishery Conservation and Management Act, and other
applicable laws.
DATES: Written comments must be received by April 11, 2011.
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian. You may submit comments, identified by RIN
number 0648-AY65, by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal Web site at http://www.regulations.gov.
Mail: P. O. Box 21668, Juneau, AK 99802.
Fax: (907) 586-7557.
Hand delivery to the Federal Building: 709 West 9th
Street, Room 420A, Juneau, AK.
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 (e.g., name, address) 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. Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (pdf) formats only.
Electronic copies of the Environmental Assessment/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared
for this action may be obtained from http://www.regulations.gov or from
the 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
proposed rule may be submitted to NMFS at the above address, e-mailed
to [email protected], or faxed to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442.
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the
exclusive economic zone (EEZ) of the Bering Sea and Aleutian Islands
management area (BSAI) under the Fishery Management Plan for Groundfish
of the Bering Sea and Aleutian Islands Management Area (FMP). The North
Pacific Fishery Management Council (Council) prepared the FMP pursuant
to the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing
the FMP appear at 50 CFR part 679. General regulations that pertain to
U.S. fisheries appear at subpart H of 50 CFR part 600.
Background
The Council and NMFS annually establish biological thresholds and
annual total allowable catch limits (TACs) for groundfish species to
ensure the sustainability of the groundfish fisheries in the BSAI and
to assist in the allocation of groundfish TACs among various user
groups. To achieve these objectives, NMFS requires vessel operators
participating in groundfish fisheries in the BSAI to comply with
various restrictions, such as fishery closures to maintain catch within
specified TACs and prohibited species catch limits, and associated
sector and seasonal allocation apportionments. NMFS also requires
various permits that authorize or limit access to the groundfish
fisheries, such as a Federal fisheries permit (FFP) and a license
limitation program (LLP) license. Many of the catch monitoring
regulations that apply to vessels designated on an FFP or an LLP
license while participating in Federal fisheries also apply to these
vessels when fishing in parallel fisheries in State of Alaska (State)
waters. Parallel fisheries are open concurrently with Federal
fisheries, and groundfish catch in the parallel fisheries is deducted
from Federal TACs and any sector and seasonal allocations of the
Federal TACs. State waters fisheries that are not parallel are referred
to as ``non-parallel State fisheries''. Targeted groundfish catch in
the non-parallel State fisheries are deducted from a State guideline
harvest level (GHL), rather than a Federal TAC. Currently, non-parallel
State fisheries for BSAI groundfish are established only for pollock,
Pacific cod, and sablefish in specified areas shoreward of the Aleutian
Islands Subarea (AI).
Federal groundfish fisheries in the EEZ from 3 to 200 nm off the
coast of Alaska may be opened by NMFS to directed fishing for selected
groundfish species. Parallel fisheries for groundfish species in State
waters (from 0 nm to 3 nm) may be opened by the Commissioner for the
Alaska Department of Fish and Game (ADF&G) through emergency order
under the authority of State regulations at 5 AAC 28.086. Non-parallel-
State fisheries (also occurring from 0 to 3 nm) may be opened and
closed by the ADF&G to fishing but during distinct seasons that
generally do not overlap with the parallel and Federal groundfish
seasons.
Federal Fisheries Permit Requirements
All vessels used to fish for groundfish in the Federal groundfish
fisheries of the BSAI must be designated by name on an FFP. Operators
of a vessel designated on an FFP must comply with NMFS observer and
recordkeeping and reporting requirements in both Federal groundfish and
parallel fisheries. In addition, operators of vessels designated on an
FFP must comply with NMFS vessel monitoring system (VMS) reporting
requirements if they participate in the directed Atka mackerel, Pacific
cod, or pollock fisheries in Federal EEZ or Alaska State waters.
However, a vessel used to fish exclusively in Alaska State waters is
not required to be designated on an FFP, and the operator of a vessel
that is not designated on an FFP is not subject to NMFS observer, VMS,
or recordkeeping and reporting requirements.
An FFP is issued on a 3-year cycle and is in effect from the date
of issuance through the end of the current 3-year cycle. A person
issued an FFP may surrender it at any time and have the FFP reissued at
any time later in the 3-year cycle. There is no limit on the number of
times an FFP may be surrendered and reissued within the 3-year permit
cycle. The flexibility provided by allowing a vessel owner to surrender
an FFP and have it reissued in a short period of time is intended to
provide a vessel opportunities to participate in Alaska State waters
fisheries, for which no FFP is required, without having to comply with
all the Federal requirements associated with an FFP.
FFPs may include many endorsements, such as, type of gear (pot,
hook-and-line, and trawl), vessel operation category (catcher/processor
(C/P) or catcher vessel (CV)), and management area (BSAI or Gulf of
Alaska (GOA)) in which a licensed vessel may fish, and in some cases a
species endorsement. These endorsements are required for a vessel to
participate in a particular fishery. For example, vessels used to
participate in Federal fisheries for Atka mackerel, Pacific cod, or
pollock must be
[[Page 13333]]
designated on an FFP with endorsements that indicate the use of pot,
trawl, or hook-and-line gear in these fisheries. With the exception of
the GOA inshore processing endorsement, an FFP may be amended to remove
an endorsement any number of times during a year. While any vessel
owner may apply for an FFP with a C/P or CV endorsement (or both) as
well as any area, gear, or species endorsements, an FFP with a specific
set of endorsements, by itself, does not authorize the operator of the
vessel to participate in the Pacific cod fishery in the BSAI. In most
cases, an LLP license also is required to participate in this fishery.
License Limitation Program Requirements
Most vessels deployed in a directed fishery for groundfish in the
BSAI are required to be named on an LLP license. The LLP authorizes a
vessel to be used in a particular directed groundfish fishery under
specified vessel operation, gear, area, and (where applicable) species
and operation type endorsements. For some groundfish species, such as
Pacific cod, additional endorsements may be required. For example, if
the operator of a pot C/P wished to participate in a directed fishery
for groundfish in the AI, the C/P must be named on an LLP with
endorsements for C/P vessel operation, non-trawl gear, and AI area. In
addition, to engage in the AI directed fishery for Pacific cod, the
vessel also must be designated on an LLP license with an endorsement
for Pacific cod in the AI for a C/P using pot gear. Unlike the FFP, the
endorsements on an LLP license are not severable from the license. An
LLP license with its associated endorsements may be assigned to a
different vessel only once per year.
There are several exceptions to the requirement for a vessel to be
designated on an LLP license to fish for groundfish in the BSAI: (1)
Vessels less than 32 ft length overall (LOA); (2) vessels not directed
fishing for LLP groundfish species that may retain incidentally caught
groundfish up to the maximum retainable amounts (including individual
fishing quota halibut or sablefish); and (3) catcher vessels less than
60 ft LOA that are exempted from having a Pacific cod endorsement on
their LLP license to participate in the fixed gear BSAI Pacific cod
fishery. In addition, vessels fishing in the parallel fisheries are not
required to be designated on an LLP license because these fisheries
occur only in State waters.
Sectors and Sector Allocations
The TAC for BSAI Pacific cod is divided into sector allocations,
which include allocations of separate portions of the TAC to pot C/Ps,
pot CVs, hook-and-line C/Ps and hook-and-line CVs. Each sector
allocation for Pacific cod is further divided into two or more seasonal
allocations. These sector and seasonal allocations were implemented
under Amendment 67 to the BSAI FMP (67 FR 18129, April 15, 2002) and
Amendment 85 to the BSAI FMP (72 FR 50788, September 4, 2007). These
two FMP amendments limited the number of vessels in each sector and
implemented sector allocations of Pacific cod to vessels in each
sector. These amendments limited access and reduced competition in the
derby-style Pacific cod fishery that has existed throughout much of the
last two decades.
Amendment 67 to the BSAI FMP was intended to limit vessel
participation with hook-and-line and pot gear in the BSAI Pacific cod
fishery, and thus authorized exclusive participation in the hook-and-
line and pot gear BSAI Pacific cod fisheries. It was implemented by
issuing LLP license endorsements to LLP holders demonstrating historic
and recent participation, and economic dependence in the Pacific cod
fishery. Of four separate Pacific cod endorsements, one was created for
Pacific cod pot C/P and one for Pacific cod hook-and-line C/P.
Amendment 85 to the BSAI FMP modified previously established
allocations of Pacific cod among ten fishery sectors created in
Amendment 67, to better reflect the historical dependency and use of
Pacific cod by each sector. Two of the industry sectors that received
modified allocations under Amendment 85 were the pot C/P sector and the
hook-and-line C/P sector.
There is a substantial difference in the amount of Pacific cod
allocated between the pot and hook-and-line sectors. The pot C/P sector
has historically caught a small amount of Pacific cod. The Amendment 85
allocation to the pot C/P sector is only 1.5 percent of the BSAI
Pacific cod TAC after subtraction of the allocation to the Western
Alaska Community Development Quota (CDQ) reserve. The C/P hook-and-line
allocation of Pacific cod is substantially larger at 48.5 percent of
the TAC after subtraction of the allocation to the CDQ reserve. The
hook-and-line C/P sector recently completed a voluntary capacity
reduction program, and in January 2008 the owners of vessels in this
fleet began repaying a $35 million Federal loan. The hook-and-line C/P
sector's ability to repay the loan is based on a secure annual
allocation of Pacific cod to the sector participants who have been
issued the appropriate Amendment 67 endorsed LLP licenses.
Statement of Problem
At the October 2008 Council meeting, the members of the BSAI
groundfish pot and hook-and-line C/P sectors informed the Council that
following the implementation of Amendment 85, Federally-permitted pot
and hook-and-line C/Ps have been participating in increasing numbers in
the Pacific cod parallel fishery. Owners of several of these C/Ps have
not been issued FFPs and LLP licenses with the endorsements necessary
to fish in the Pacific cod fishery in the BSAI EEZ. However, the catch
of Pacific cod in the parallel fishery from these C/P vessels accrues
against the sector allocations in the Federal fishery that were
designed to be available only to vessels with the appropriate Pacific
cod endorsements issued under Amendment 67.
In April 2009, information prepared for the EA/RIR/IRFA (See
ADDRESSES) confirmed that several operators of hook-and-line C/Ps that
have been participating in the parallel Pacific cod fishery have not
been issued all the FFP and LLP licenses and endorsements that are
necessary to participate in the Federal Pacific cod fishery. The EA/
RIR/IRFA also confirmed that hook-and-line C/Ps that have been issued
all the FFP and LLP license endorsements required to fish as C/Ps in
the Federal Pacific cod fishery, also fish as C/Ps in the parallel
fishery. However, if the hook-and-line C/P sector's season closes in
the Federal fishery and vessels in the hook-and-line C/P sector
continue to fish in the parallel fishery as hook-and-line C/Ps, NMFS
continues to credit that catch in the parallel fishery to the hook-and-
line C/P sector allocation. That additional amount credited to the C/P
sector allocation in the current season could result in a reduction in
the allocation available to the C/P sector participants during a
subsequent season of that year. The Council concluded that the
additional catch of Pacific cod resulting from this activity, while
only a fraction of a percent of the BSAI Pacific cod allocation, may be
circumventing the intent of previous decisions made by the Council
regarding license limitation and endorsements, sector allocations, and
catch reporting. While the additional fishing activity had not violated
Federal permit and license regulations, the Council concluded that
additional fishing activity in the Pacific cod parallel fishery has
reduced ``or circumvented'' the intended
[[Page 13334]]
effectiveness of Pacific cod sector allocations and the capacity
reduction program.
The EA/RIR/IRFA prepared for this action (See ADDRESSES)
highlighted how increased participation in BSAI C/P hook-and-line
sector in recent parallel fisheries has undermined the capacity
reduction program undertaken by particular members of that sector. The
increased participation has eroded the opportunity of historical
participants to harvest the Pacific cod allocated to the C/P sector
under Amendment 85. The increased participation in the parallel fishery
involved Federally-permitted C/Ps without an Amendment 67 Pacific cod
endorsement, or an AI area endorsement. These vessel owners and
operators are recent entrants to the Pacific cod fishery and have not
demonstrated long-term economic dependence on the fishery.
An increase in recent parallel fishery participation by vessels in
the pot and hook-and-line C/P sectors has correspondingly increased
fishing competition in the BSAI Pacific cod fishery. This increased
fishing pressure has resulted in shortened Federal seasons, has
exacerbated the race for fish, and has increased the concentration of
Pacific cod harvest in State waters relative to catch in the Federal
waters. The increased fishing competition and catch from these sectors
in the parallel Pacific cod fishery have also increased the complexity
and difficulty in managing sector allocations and seasonal
apportionments. Furthermore, owners of some vessels used to fish for
Pacific cod in a Federal groundfish fishery have surrendered their FFPs
before fishing in a parallel fishery or in the non-parallel-State
waters Pacific cod fishery to avoid NMFS observer and recordkeeping and
reporting requirements. Operators of vessels designated on an FFP are
subject to NMFS observer, VMS, and recordkeeping and reporting
requirements while fishing in Federal and State water groundfish
fisheries. Some Pacific cod C/Ps may have avoided complying with these
important NMFS enforcement and recordkeeping tools while fishing in the
State waters by surrendering or amending their FFP. As a consequence,
these vessels may be degrading the quality of information available to
NMFS to manage the Pacific cod fishery.
The Proposed Action
In consideration of the effects of these practices on the
allocation of Pacific cod and data quality, the Council recommended
three actions at its June 2009 meeting to further restrict
participation of pot or hook-and-line C/Ps in the Pacific cod parallel
fishery. These three actions would amend regulations for pot and hook-
and-line C/Ps by extending FFP and LLP endorsement requirements that
apply in Federal fisheries to the Pacific cod parallel fishery: placing
restrictions on reissuing or amending an FFP, and requiring operators
of these pot and hook-and-line C/Ps participating in the parallel
fishery to comply with seasonal closures of Pacific cod in the BSAI.
Endorsements for the State Parallel Fishery
The first of three actions recommended by the Council would add
requirements for additional endorsements on an FFP and LLP license. The
endorsements would apply to vessels designated on an FFP that fish for
Pacific cod in the parallel fishery, use pot or hook-and-line gear, and
catch and process Pacific cod. The proposed rule would implement this
recommendation by amending Sec. 679.7(c)(3) to prohibit a person from
using pot or hook-and-line gear from a vessel designated on an FFP to
catch and process Pacific cod in the parallel fishery in the BSAI
unless:
1. The FFP has a C/P vessel operation endorsement; a pot or hook-
and-line gear endorsement; and a BSAI area endorsement; and
2. The LLP license has a C/P vessel operation endorsement; a non-
trawl gear endorsement; an Aleutian Islands area endorsement or a
Bering Sea area endorsement; and a BSAI C/P Pacific cod hook-and-line
or BSAI C/P Pacific cod pot endorsement.
The prohibitions would clarify that under the authority of the
Magnuson-Stevens Act, the endorsements listed in 1 and 2, and any
conditions of these FFP and LLP endorsements, apply to Federally
permitted pot or hook-and-line C/P vessels fishing for Pacific cod in
the parallel fishery.
Reissuing and Amending an FFP
The second action recommended by the Council is to prohibit the
owner of a C/P using pot or hook-and-line gear in the BSAI from
surrendering his or her FFP during the 3-year term of the FFP. Rather
than prohibiting surrender of an FFP, NMFS proposes to implement the
Council's recommendation by not reissuing an FFP once it is
surrendered. The proposed rule would add paragraph (B) at Sec.
679.4(b)(4)(ii) to state that, once surrendered, NMFS will not reissue
an FFP to the owner of a vessel with a C/P vessel operation, pot or
hook-and-line gear type, and BSAI area endorsement during the remainder
of the 3-year term of the original FFP.
This approach would be more efficient for NMFS to administer
because it would only require NMFS to track the number of vessel owners
applying for a new FFP with a pot or hook-and-line C/P endorsement who
had previously surrendered an FFP rather than track whether each permit
holder who submitted a request to surrender an FFP had participated as
a pot or hook-and-line C/P in the BSAI within the 3-year term of the
surrendered permit.
The proposed rule also would add paragraph (B) to Sec.
679.4(b)(4)(iii) to prohibit the owner of a vessel named on an FFP with
endorsements for C/P vessel operation category, pot or hook-and-line
gear, and BSAI area groundfish endorsement from amending the FFP by
removing the C/P operation, pot or hook-and-line gear, or BSAI area
endorsements.
The proposed rule also would revise Sec. 679.4(b)(4)(iii) to refer
to the ``owner'' of a vessel who applied for and held an FFP rather
than to the ``owner or operator''. The term operator would be removed
because FFPs may only be issued to vessel owners.
Seasonal Closures
The third action recommended by the Council is to clarify that
Pacific cod seasonal closure requirements for Federally permitted pot
and hook-and-line C/Ps apply in both Federal and parallel Pacific cod
fisheries. The proposed rule would implement this recommendation by
adding paragraph (4) to Sec. 679.7(c), to prohibit operators of
vessels in the pot or hook-and-line C/P sector that are named on an FFP
from fishing for Pacific cod in the parallel fishery once the directed
fishery for Pacific cod for their sector is closed in Federal waters.
Notice; Pacific Cod Caught in Parallel Fisheries Are Deducted From the
TAC
Owners of Federally permitted pot or hook-and-line C/Ps, intending
to catch and process Pacific cod from the parallel fishery, would
receive actual and/or constructive notice from NMFS that any Pacific
cod caught by that vessel in parallel fisheries will be deducted from
the Federal TAC. The notice would improve enforceability of regulations
proposed under Sec. 679.7(c)(3) and (c)(4), by clarifying that a
Federally permitted pot or hook-and-line C/P would be in violation of
these prohibitions for catching and processing Pacific cod in parallel
fisheries without the required FFP and LLP license
[[Page 13335]]
endorsements or during a Pacific cod seasonal closure.
What the Amendments Accomplish
The requirements in this proposed action for pot and hook-and-line
C/Ps to be issued specific permits and endorsements to fish for Pacific
cod in the parallel fishery, combined with proposed restrictions on
surrendering and reissuing an FFP would address the Council's problem
statement by requiring that, once a vessel owner of a pot or hook-and-
line C/P is issued an FFP, he or she must choose to fish for Pacific
cod predominantly in the Federal fishery or surrender his or her FFP
and fish in State waters for the remainder of the 3-year term of the
FFP. Owners of pot or hook-and-line C/Ps eligible to participate in the
Federal fisheries are unlikely to surrender their FFP and give up the
opportunity to continue to fish Pacific cod in the Federal fishery,
unless they are close to the end of the 3-year term of the FFP. Relying
exclusively on Pacific cod catch in parallel and non-parallel State
fisheries for up to 3 years would represent a significant loss in
revenue for many C/Ps because most Pacific cod are located in and
caught in the Federal waters of the BSAI. Although these proposed
regulatory amendments would not prohibit a C/P without an FFP or LLP
license from participating in the parallel fishery, it would discourage
the current practice of surrendering an FFP or removing an endorsement
from an FFP before participating in the parallel fishery to avoid NMFS
observer, VMS, and recordkeeping and reporting requirements.
Conservation and Management
This action implements the conservation and management of Federal
fisheries as provided by Amendments 67 and 85 to the BSAI FMP.
Amendment 67 created exclusive pot C/P and hook-and-line C/P sectors
for participating in the BSAI Pacific cod fishery through a license
limitation program (LLP). The creation of sectors effectively removed
some vessels that did not historically participate in these Pacific cod
fisheries, and reduced competition that contributed to the race for
fish. Some of the C/Ps that did not qualify for the necessary LLP
endorsement in Amendment 67 continue to fish for Pacific cod in the
parallel fishery off of allocations for the C/P pot and hook-and-line
sectors created by Amendment 85. This proposed rule would apply the
same LLP endorsements required for Federally permitted pot or hook-and-
line C/Ps to participate in the BSAI Pacific cod fishery to the
parallel Pacific cod fishery, limiting ability of C/Ps without an LLP
or the appropriate LLP endorsements to fish off of these Pacific cod
sector allocations in the parallel fishery. Thus, this proposed action
would contribute to conservation and management objectives by
preventing C/Ps without an LLP or the appropriate endorsements to
continue to participate in parallel fishery, reducing the pool of
vessels competing for limited allocations to the C/P pot and hook-and-
line sectors, and limiting the race for fish in the BSAI.
The interim final rule for Steller sea lion (SSL) protection
measures (75 FR 77535, December 13, 2010, corrected 75 FR 81921,
December 29, 2010) establish closures in critical habitat waters 0 nm
to 3 nm around certain rookeries and haulouts in the Aleutian Islands
subarea. The harvest of Pacific cod in the parallel fisheries was
included in the action considered in the November 2010 biological
opinion on the Alaska Federal groundfish fisheries. In the analysis of
the action in the biological opinion, the parallel fisheries were
expected to be managed with the same closures as specific for the
Federal Pacific cod fisheries as shown in Table 12 to 50 CFR part 679.
The interim final rule closed State waters occurring inside Steller sea
lion critical habitat. On January 11, 2011, the State issued an
emergency order that allows for Pacific cod harvest by hook-and-line
vessels 58 ft or less and by pot vessels 60 feet or less in State
waters critical habitat between 175 degrees W longitude and 178 degrees
W longitude that are closed to Federally permitted vessels. NMFS has
initiated an Endangered Species Act Section 7 consultation on the
State's emergency order. This proposed action would discourage a pot or
hook-and-line C/P from surrendering its FFP and fishing in the parallel
fisheries in those areas closed in Table 12 to 50 CFR part 679 but open
under State parallel management. This proposed action would facilitate
implementation of the closure areas for the protection of Steller sea
lion critical habitat, as provided in the interim final rule (75 FR
77535, December 13, 2010, corrected 75 FR 81921, December 29, 2010) and
required by the biological opinion.
Classification
Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this
proposed rule is consistent with the FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the RFA (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 remainder of the IRFA follows. A copy of this analysis
is available from NMFS (see ADDRESSES).
The directly regulated entities for this proposed action are the
members of the commercial fishing industry that operate groundfish pot
or hook-and-line C/Ps in the BSAI and State parallel waters. Under a
conservative application of the Small Business Administration criterion
and the best available data, there are four small entities out of a
total of 44 vessels in 2008 that would be directly regulated by the
proposed action. To provide these estimates, earnings from all Alaskan
fisheries for 2008 were matched with the vessels that participated in
the BSAI pot or hook-and-line fishery for that year.
To minimize impacts on small entities, this action would not apply
to pot or hook-and-line C/Ps of less than 32 ft LOA, or to pot or hook-
and-line CVs. The CVs participating in these fisheries are generally
operating in non-parallel-State and parallel fisheries only, and are
not required by NMFS to be designated on an LLP license or FFP to
participate in these groundfish fisheries.
In addition to the proposed alternative, the Council evaluated an
alternative to prohibit any vessel with a C/P endorsement on its FFP
from amending the C/P endorsement, and only allow surrender or
reactivation of the FFP at the end of the FFP permit cycle. That
alterative was rejected because it would have applied to jig and trawl
C/Ps, and was beyond the scope of the Council's problem statement and
analysis.
The Council also evaluated the no action alternative, which would
maintain the fishery under the status quo, but it was rejected because
it would not address the problem statement.
The majority of the directly regulated entities under this action
are not considered small entities, as defined under the Regulatory
Flexibility
[[Page 13336]]
Analysis. Within the universe of small entities that are the subject of
this IRFA, impacts may accrue differently (i.e., some small entities
would be negatively affected and others positively affected). Thus, the
proposed action represents tradeoffs in terms of impacts on small
entities. However, the Council deliberately sought to provide options
for the smallest of the small entities under this amendment by
excluding CVs from the proposed regulatory changes. The restrictions on
participation in the BSAI Pacific cod parallel fishery would only apply
to pot and hook-and-line C/Ps; therefore only these C/Ps are considered
here.
Overall, it is unlikely that the combination of these proposed
restrictions would preclude vessels with a high degree of economic
dependence upon the pot or hook-and-line groundfish fisheries from
participating in the Pacific cod parallel fishery. Most of the vessel
owners who are highly dependent on these fisheries were issued an LLP
license with pot or hook-and-line Pacific cod endorsements, in 2003
under Amendment 67 by demonstrating recent catch history in the BSAI
Pacific cod fishery. Most of the vessel owners who have not been issued
an LLP license with a Pacific cod endorsement, and who have fished in
parallel fisheries, are recent entrants to the fishery and have not
demonstrated long-term economic dependence on the fishery. These vessel
owners would continue to have access to the State Pacific cod fishery
after implementation of the proposed action.
Based upon the best available scientific data, and consideration of
the objectives of this action, it appears that there are no
alternatives to the proposed action that have the potential to
accomplish the stated objectives of the Magnuson-Stevens Act and any
other applicable statutes and that have the potential to minimize any
significant adverse economic impact of the proposed rule on small
entities. The analysis did not identify any Federal rules that would
duplicate, overlap, or conflict with the proposed rule. This rule
requires revisions to some existing recordkeeping and reporting
requirements but imposes no new requirements on the effected vessel
owners or operators.
Collection-of-Information Requirements
This proposed rule contains a collection-of-information requirement
subject to review and approval by Office of Management and Budget (OMB)
under the Paperwork Reduction Act (PRA). This requirement has been
submitted to OMB for approval under OMB Control No. 0648-0206. Public
reporting burden for an Application for a Federal Fisheries Permit is
estimated to average 21 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 information. This rule also contains a collection-of-
information that has been approved by OMB under OMB Control No. 0334.
Total public reporting burden for the License Limitation Program is
estimated at 268 hours.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS
Alaska Region at the ADDRESSES above, and by e-mail to [email protected], or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 8, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447.
2. In Sec. 679.4, paragraphs (b)(4)(ii) and (iii) are revised to
read as follows:
Sec. 679.4 Permits.
(b) * * *
(4) * * *
(ii) Surrendered permit. (A) An FFP permit may be voluntarily
surrendered in accordance with paragraph (a)(9) of this section. Except
as provided under paragraph (b)(4)(ii)(B) of this section, if
surrendered, an FFP may be reissued to the permit holder of record in
the same fishing year in which it was surrendered. Contact NMFS/RAM by
telephone, at 907-586-7202 (Option 2) or toll-free at 800-304-
4846 (Option 2).
(B) NMFS will not reissue an FFP to the owner of a vessel named on
an FFP that has been issued with endorsements for catcher/processor
vessel operation type, pot or hook-and-line gear type, and the BSAI
area, until after the expiration date of the surrendered FFP.
(iii) Amended permit. (A) An owner who applied for and received an
FFP must notify NMFS of any change in the permit information by
submitting an FFP application found at the NMFS Web site at http://alaskafisheries.noaa.gov. The owner must submit the application as
instructed on the application form. Except as provided under paragraph
(b)(4)(iii)(B) of this section, upon receipt and approval of a permit
amendment, the Program Administrator, RAM, will issue an amended FFP.
(B) NMFS will not approve an application to amend an FFP to remove
a catcher/processor vessel operation endorsement, pot gear type
endorsement, hook-and-line gear type endorsement or BSAI area
endorsement from an FFP that has been issued with endorsements for
catcher/processor vessel operation type, pot or hook-and-line gear
type, and the BSAI area.
* * * * *
3. In Sec. 679.7, paragraphs (c)(3) and (c)(4) are added to read
as follows:
Sec. 679.7 Prohibitions.
* * * * *
(c) * * *
(3) Parallel fisheries. Use a vessel designated or required to be
designated on an FFP to catch and process Pacific cod from waters
adjacent to the BSAI when Pacific cod caught by that vessel is deducted
from the Federal TAC specified under section 679.20(a)(7)(ii)(A)(4) of
this part for pot gear or (a)(7)(ii)(A)(6) of this part for hook-and-
line gear unless that vessel is designated on both:
(i) An LLP license issued under section 679.4(k) of this part with
the following endorsements:
(A) A catcher/processor endorsement;
(B) A BSAI catcher/processor Pacific cod hook-and-line, or a BSAI
catcher/processor Pacific cod pot endorsement;
[[Page 13337]]
(C) An Aleutian Islands area endorsement or Bering Sea area
endorsement; and
(D) A non-trawl endorsement; and
(ii) An FFP issued under section 679.4(b) of this part with the
following endorsements:
(A) A catcher/processor endorsement;
(B) A BSAI endorsement; and
(C) A pot or hook-and-line gear type endorsement.
(4) Parallel fishery closures. (i) Use a vessel designated or
required to be designated on an FFP to catch and process Pacific cod
with pot gear from waters adjacent to the BSAI when Pacific cod caught
by that vessel is deducted from the Federal TAC specified under section
679.20(a)(7)(ii)(A)(4) of this part for pot gear if the BSAI is open to
directed fishing for Pacific cod but is not open to directed fishing
for Pacific cod by a catcher/processor using pot gear.
(ii) Use a vessel designated or required to be designated on an
FFP, to catch and process Pacific cod with hook-and-line gear from
waters adjacent to the BSAI when Pacific cod caught by that vessel is
deducted from the Federal TAC specified under section
679.20(a)(7)(ii)(A)(6) of this part for hook-and-line gear, if the BSAI
is open to directed fishing for Pacific cod but is not open to directed
fishing for Pacific cod by a catcher/processor using hook-and-line
gear.
* * * * *
[FR Doc. 2011-5667 Filed 3-10-11; 8:45 am]
BILLING CODE 3510-22-P