Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone Western Alaska Community Development Quota Program,
[Federal Register: November 26, 2004 (Volume 69, Number 227)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF COMMERCE
National Oceanic Atmospheric Administration
[Docket No. 041110318-4318-01; I.D. 110504E]
Fisheries of the Exclusive Economic Zone Off Alaska; Revisions to Western Alaska Community Development Quota (CDQ) Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
SUMMARY: NMFS proposes to revise regulations governing the Western Alaska Community Development Quota (CDQ) Program. These regulatory amendments would simplify the processes for making quota transfers, for authorizing vessels as eligible to participate in the CDQ fisheries, and for obtaining approval of alternative fishing plans. This proposed action is necessary to improve NMFS's ability to administer the CDQ Program effectively and it is intended to further the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP).
DATES: Written comments on this proposed rule must be received by December 27, 2004.
ADDRESSES: Send written comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Lori Durall. Comments may be submitted by:
Mail to P.O. Box 21668, Juneau, AK 99802-1668;
Hand delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, AK;
Fax to 907-586-7557;
E-mail to CDQ-ADM-0648-AS00@noaa.gov and include in the subject line of the e-mail comment the document identifier: 0468-AS00;
Website to the Federal eRulemaking Portal at http://www.Regulations.gov and following the instructions at that site for
Copies of the Categorical Exclusion and Regulatory Impact Review/ Initial Regulatory Flexibility Analysis prepared for this action may be obtained from any of the addresses stated above.
Send comments on collection-of-information requirements to the same NMFS address and also to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 (Attn: NOAA Desk Officer). Also, send comments to David Rostker, OMB, by e- mail at DRostker@omb.eop.gov or by facsimile to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228 or email@example.com.
SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands Area (BSAI) are managed under the 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 governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.
Background and Need for Action
By design of the Council, the CDQ Program is jointly managed by NMFS and the State of Alaska (State). The CDQ Program provides participating western Alaska fishing communities allocations of groundfish, halibut, and crab, as well as allowances for bycatch of prohibited species (salmon, halibut, and crab) while prosecuting CDQ target fisheries. These communities have formed six non-profit corporations (also known as CDQ groups) to manage and administer the CDQ allocations and economic development projects. The CDQ groups prepare Community Development Plans (CDPs) that describe how CDQ allocations will be used to benefit the participating communities. The CDPs are submitted to the State and NMFS as part of the process for allocating quota among the CDQ groups. Modifications to CDPs for new CDQ projects or other revisions are made through substantial and technical amendments, both of which must be reviewed by the State and approved by NMFS.
As a result of the CDQ Program's expansion and maturation since its implementation in 1992, the Council undertook a comprehensive evaluation of the CDQ Program. In response to that evaluation, the Council recommended Amendment 71 to the FMP in June
2002. Amendment 71 included eight issues related to the administration and oversight of the economic development aspects of the CDQ Program and the process through which allocations to CDQ groups are made. This proposed rule addresses the regulatory changes recommended by the Council in Issue 8 under Amendment 71: to simplify the processes for making quota transfers and for obtaining approval of alternative fishing plans by removing the State from the review process. This proposed rule also would revise the authorization process for vessels eligible to participate in the CDQ fisheries. Although not directly considered by the Council as part of Amendment 71, the revisions to the eligible vessel approval process are proposed by NMFS as part of this action because they are related in nature and scope to the Council's recommendations concerning alternative fishing plans. The remaining seven issues under Amendment 71 will be addressed in upcoming FMP amendments.
Description of the Proposed Action
This proposed rule would make the following revisions to NMFS's CDQ regulations:
1. Allow CDQ groups to transfer groundfish CDQ and halibut CDQ by submitting transfer requests directly to NMFS and remove the requirement that the transfers are made through amendments to the CDPs and that they are submitted to the State for review before being submitted to NMFS.
2. Allow CDQ groups to transfer prohibited species quota (PSQ) by submitting transfer requests directly to NMFS and remove the requirement that the transfers are made through amendments to the CDPs and that they are submitted to the State for review before being submitted to NMFS. In addition, the proposed rule would allow the transfer of PSQ during any month of the year and allow PSQ transfer without an associated transfer of CDQ.
3. Remove the requirement that ``fishing plan'' forms are part of a group's CDP, but continue to require that CDQ groups request and obtain approval from NMFS for all vessels groundfish CDQ fishing and for vessels equal to or greater than 60 feet (18.3 meters) length overall (LOA) that are halibut CDQ fishing before these vessels participate in any CDQ fisheries. Additionally, a CDQ group would be required to provide a copy of the NMFS-approved eligible vessel request to the vessel operator; the vessel operator would be required to maintain a copy of the NMFS-approved request onboard the vessel at all times while harvesting, transporting, or offloading CDQ; and a CDQ group would be required to notify the vessel operator if the vessel is removed from eligibility to fish for CDQ.
4. Remove the requirement that a CDQ group obtain prior approval by the State and NMFS for all processors taking deliveries of groundfish CDQ.
5. Allow CDQ groups to submit alternative fishing plans directly to NMFS rather than as amendments to the CDP. An alternative fishing plan would be an attachment to the eligible vessel request. Additionally, CDQ groups would be required to provide a copy of the NMFS-approved alternative fishing plan to vessel operators and vessel operators would be required to maintain a copy of the alternative fishing plan approved by NMFS onboard the vessel at all times while harvesting, transporting, or offloading CDQ.
6. Remove requirements that CDQ groups must ensure their respective fishing and processing partners' compliance with regulations in 50 CFR part 679.
7. Implement other revisions to the regulations to update and clarify definitions and cross references needed to support the primary regulatory amendments in this proposed rule.
Further explanation of these revisions and the rationale for them are provided below.
A CDQ group may transfer all or part of its annual CDQ to another group in response to: changes in, or the non-availability of, a group's harvesting partner; the length of a particular non-CDQ fishery season; availability of a given target species; and weather or seasonal conditions impacting smaller vessels. Currently, quota transfers must be approved via amendment to a group's CDP. Amounts that are ten percent or less of a group's annual CDQ may be transferred through the technical amendment process as described in 50 CFR 679.30(g)(5). Amounts in excess of ten percent may be transferred through the substantial amendment process as described in Sec. 679.30(g)(4). Transfers are effective for the remainder of the calendar year in which a transfer occurs. In general, a transfer of quota involves the following steps: each CDQ group requesting a transfer must notify the State in writing that it wishes to make a transfer; the State must forward the proposed transfer to NMFS with its recommendations for approval or disapproval; and, finally, the transfer becomes effective when NMFS notifies the State in writing that the transfer has been reviewed and approved. These transfer provisions were recommended by the State and supported by NMFS when the multispecies CDQ Program was implemented in 1998. At that time, the Council, NMFS, and the State believed that a process involving both agencies in the review of quota transfers was necessary to provide the State with information about proposed CDQ and PSQ transfers. This process allows the State to remain informed about fishery management actions taken by each CDQ group and for the State to determine if these transfers would significantly change a CDQ group's ability to implement its CDP.
Between 2001 and 2003, the CDP amendment process was used to transfer CDQ 72 times, requiring 144 CDP modifications (two for each transfer: one for the CDQ group conferring the quota and one for the CDQ group receiving the quota). Slightly less than half the transfers represented more than 10 percent of a CDQ group's quota and thus required substantial amendments to the CDPs. Technical amendments generally are processed in a relatively short period of time, although coordination is still necessary between the State and NMFS. However, if a substantial amendment is required, six copies of the amendment must be delivered to the State and the State's CDQ team (comprised of several State officials and employees) must review the amendment before the State sends its recommendation to NMFS. CDQ groups often wish to transfer quota on fairly short notice during the fishing season. The time necessary for the current review process is frequently at odds with the fast-paced nature of some groundfish fisheries or the availability of a CDQ harvesting partner. As part of its action on Amendment 71, the Council recommended that CDQ groups be allowed to transfer quota by submitting a transfer request directly to NMFS.
The proposed rule would revise regulations at Sec. 679.30(e) to require CDQ groups to submit CDQ transfer requests directly to NMFS without going through the technical or substantial amendment processes. NMFS would review each request to ensure that the group providing CDQ has adequate quota available to transfer. The transfer process would become an in-season management function of NMFS, rather than a joint State-NMFS CDP-modification approval process. NMFS would provide the State with a copy of each approved transfer so that the State would continue to have information about the CDQ groups' fisheries management activities. Transfers would continue to be effective only for the remainder of the calendar year in which the transfer occurs.
Because the CDQ groups would make their quota transfer requests directly to NMFS, the time required for the approval or disapproval of a transfer request would be reduced. To make a transfer request, each group would submit a brief form to NMFS rather than the more complex and detailed submission required for a substantial or technical amendment to a CDP. This form is described in detail under proposed regulations at Sec. 679.5(n). This form would request contact information for each group involved in the transfer and the amounts of quota being transferred. By reducing the time and paperwork required for the approval or disapproval of a CDQ transfer request, this measure would reduce costs for the CDQ groups, the State, and NMFS.
In addition to being allocated a portion of each CDQ reserve, each CDQ group is allocated a portion of each Prohibited Species Catch (PSC) limit for crab, salmon, and halibut as a PSQ. The crab and salmon PSQ allocations rarely restrict the groundfish CDQ fisheries and generally only prevent CDQ fishing in limited areas under limited circumstances. Halibut PSQ allocations, however, do have the potential to prevent a group from fully harvesting its groundfish CDQ target species. For example, a group that caught all its chinook salmon PSQ would be prohibited from trawling during certain times of the year in specific areas of the Bering Sea set aside to reduce bycatch of salmon. On the other hand, a group that caught all its halibut PSQ prior to fully harvesting its groundfish would have to cease all its fishing activities or risk exceeding its halibut PSQ.
Based on the recommendations of the State and the Council, NMFS implemented strict regulations for the transfer of PSQ among groups. When the CDQ Program was implemented, the State believed these regulations were necessary to hold the groups strictly accountable to their allocations to minimize bycatch, and to prevent CDQ groups from circumventing the allocation process by transferring so much PSQ that the basis for the allocations was undermined. Currently, a request for a PSQ transfer may be made only during the month of January. The request to transfer PSQ also must be part of a request to transfer CDQ and represent an amount of PSQ reasonably required as bycatch for the associated CDQ transfer. A PSQ transfer of any amount requires a substantial amendment to a group's CDP. This effectively eliminates the possibility that CDQ groups can transfer PSQ among themselves during the fishing year in response to needs arising from their actual harvesting performance or planned inter-group transfers of other groundfish CDQ species.
Halibut PSQ is intended to provide for the bycatch needs of directed groundfish fisheries and is allocated and accounted for separately from halibut CDQ. Most halibut bycatch occurs in the Pacific cod and flatfish fisheries and secondarily in the pollock, Atka mackerel, and Greenland turbot fisheries. Because none of the CDQ groups have harvested significant amounts of their flatfish quotas, they have needed only a portion of their halibut PSQ. Since the inception of the multispecies CDQ Program, 38 to 75 percent of halibut PSQ has remained unharvested each year and no PSQ has been transferred among groups. In general, flatfish prices have been low and the non-CDQ flatfish seasons have been open through much or all of the fishing year. Thus, the CDQ groups have probably been unable to develop their flatfish fisheries primarily due to factors external to the CDQ Program. Nonetheless, an inability to transfer PSQ among groups during the season may constrain CDQ fisheries in the future, especially to the extent that the CDQ groups can increase harvest of their flatfish quota.
As part of its final action on Amendment 71, the Council recommended that PSQ transfers be submitted directly to NMFS, that transfer of PSQ be allowed during any month of the year, and that PSQ transfers be allowed without an associated transfer of CDQ.
The proposed rule would revise regulations at Sec. 679.30(e) concerning PSQ transfers to require CDQ groups to submit PSQ transfer requests directly to NMFS. PSQ transfer requests could occur at any time during a given year. Additionally, a CDQ group could request the transfer of PSQ without an associated transfer of CDQ. To make a transfer request, each group would submit a transfer request form directly to NMFS rather than the more complex submission required for a substantial amendment. This new form is discussed above in ``CDQ transfers'' and is described in detail in proposed regulations under Sec. 679.5(n). This measure would reduce the time and documentation required for the approval or disapproval of a PSQ transfer request, and, thus reduce the cost to the CDQ groups, the State, and NMFS. NMFS would review and take action on each PSQ transfer request and would provide the State with a copy of all approved PSQ transfers so that the State would continue to have information about the CDQ groups' fisheries management activities. Transfers would still be effective only for the remainder of the calendar year in which a transfer occurs.
Allowing the transfer of PSQ during months other than January and without association with a transfer of CDQ would not be expected to allow the CDQ groups to circumvent the allocation process. No reason would exist to transfer significant amounts of PSQ other than to meet the bycatch needs associated with a CDQ transfer or the in-season requirements of a particular CDQ fishery. Rather, additional collaborative CDQ fisheries could be developed by the CDQ groups in a manner similar to the Atka mackerel and Pacific ocean perch CDQ fisheries. In these fisheries, target species CDQ and associated bycatch CDQ are consolidated by transfers to one or two CDQ groups that have partners interested in harvesting the target species.
Transfers of CDQ and PSQ Percentage Allocations
NMFS is not proposing to change the regulations governing the transfer of CDQ or PSQ percentage allocations which are assigned to each CDQ group when the CDPs are approved and which can be transferred. Transfer of percentage allocations are allowed under current regulations at Sec. 679.30(e) as a substantial amendment to the CDP. If approved, a transfer of a percentage allocation of CDQ or PSQ would continue to be effective for the remainder of the CDP cycle. To date, no CDQ group has requested the transfer of a percentage allocation of any CDQ or PSQ category.
Eligible Vessels and Processors
CDQ allocations are made to the CDQ groups and not to individual vessels participating in the CDQ fisheries. Currently, to harvest CDQ, a vessel must have authorization from a CDQ group, the State, and NMFS. Before the operator of a vessel catches groundfish or halibut on behalf of a CDQ group, NMFS requires that each vessel of any length that will be fishing for groundfish CDQ, and each vessel equal to or greater than 60 feet (18.3 meters) LOA that will be halibut CDQ fishing, be listed as an eligible vessel in the group's CDP by the group submitting a proposed fishing plan. In addition, NMFS requires that all shoreside processing plants or floating processors that will take delivery of groundfish CDQ be listed in a group's CDP on a proposed fishing plan. A CDQ group must select from among six different forms depending on
the type of vessel or processor, adding complexity to the process. Currently, NMFS does not require that a copy of the approved fishing plan be maintained onboard a vessel fishing for CDQ or in a processing plant taking deliveries of CDQ groundfish.
These requirements, which are codified at Sec. 679.30(a)(5), were implemented to provide very specific information about a CDQ group's fishing plans in its CDP and to provide NMFS information to better manage the CDQ fisheries. In the first few years of the multispecies groundfish CDQ fisheries (1998 through 2000), NMFS used some of the more detailed information on the fishing plan forms to determine if the vessel or processor participating in the CDQ fisheries was complying with new observer coverage and catch reporting requirements.
CDQ groups can make changes to the lists of eligible vessels and eligible processors only by substantial or technical amendments to their CDPs. These amendments must first be submitted to the State which reviews and submits them to NMFS for action. Between 2001 and 2003, 6 substantial amendments and 54 technical amendments to CDPs were submitted requesting changes to the lists of eligible vessels and eligible processors.
The proposed rule would move regulations about eligible vessels and processors from Sec. 679.30 to Sec. 679.32 and revise them. NMFS proposes to remove entirely the requirement for prior approval of processors taking delivery of groundfish CDQ. This requirement was intended to provide the State and NMFS information about the processors that would be participating in the CDQ fisheries to ensure that they complied with observer coverage, and catch accounting and reporting requirements. However, NMFS has found that information provided through the CDPs about the eligible shoreside processors is no longer necessary because this information exists in reports collected from observers and directly from the shoreside processors (e.g., the shoreside processor's logbook and CDQ delivery reports). NMFS would continue to provide the State with information about processors that take CDQ deliveries through summary reports created from observer data, shoreside logbooks, and CDQ delivery reports.
NMFS proposes to maintain the requirement that all vessels groundfish CDQ fishing and vessels equal to or greater than 60 feet (18.3 meters) LOA that are halibut CDQ fishing be authorized by the CDQ group and approved by NMFS prior to participating in CDQ fisheries. However, under the proposed rule, NMFS would no longer require that vessels participating in the CDQ fisheries be listed in the CDPs, and changes to a CDQ group's list of eligible vessels would no longer be made by amendment to the CDPs. Instead, requests for approval of eligible vessels would be submitted by the CDQ groups directly to NMFS and used to generate a list of eligible vessels for each CDQ group. A request for approval would be required for each vessel a CDQ group intends to use. Each group could remove a vessel at any time by notifying NMFS by letter of its intent to do so. Information requirements for the approval request would be codified at Sec. 679.5(n)(4) and are based on current information requirements for the fishing plans in the CDP. Requirements would include a description of the vessel; contact information for the vessel; the type of fishing gear the vessel would use; and the method to be used to determine CDQ or PSQ catch.
In addition, the CDQ groups would be required to provide a copy of NMFS's approval to the vessel operators, and the vessel operators would be required to maintain a copy of NMFS's approval onboard the vessel at all times while harvesting, transporting, or offloading CDQ. Also, a CDQ group would be required to notify the vessel operator if the vessel is removed from eligibility to fish for CDQ. This documentation would provide U.S. Coast Guard and NMFS enforcement officers with verification that a vessel that claimed to be CDQ fishing was in fact authorized to do so by the CDQ group (the quota holder) and NMFS. CDQ fisheries often occur at times when other fisheries are closed, so a vessel operator that is CDQ fishing must be able to document his or her status when other vessels are prohibited from fishing.
The following information would no longer be required: information about processors that would be taking deliveries of CDQ; information about the expected target fisheries, average and maximum number of hauls or sets expected, average and maximum weight of hauls, average number of hooks expected per set, time expected to set and retrieve the gear; the number of observers that will be aboard the vessels; name and location of the processor that the catcher vessel will be delivering to; vessel type (e.g., catcher vessel, catcher/processor, or mothership); and whether the vessel operator also will be halibut CDQ or halibut IFQ fishing while groundfish CDQ fishing. Removing these requirements would reduce the information required to be collected and submitted for each vessel and processor, and, thus, would reduce the associated costs to the CDQ groups, vessel owners, and processors.
The CDQ groups would continue to be required to provide information in their CDPs about their general plans for harvesting the CDQ allocations. They would be required to provide a narrative description of how the CDQ group intends to harvest and process its CDQ allocations, including a description of the target fisheries, the types of vessels and processors that would be used, the locations and methods of processing, and the CDQ group's proposed partners. The CDQ groups also would continue to be required to provide in their CDPs a description of all business relationships, which would include contracts with vessel owners and processors for harvesting and processing CDQ. New contracts or changes in existing contracts also would continue to be required to be submitted as amendments to the CDP, but these rarely would be affected by updates to the lists of eligible vessels.
Alternative Fishing Plans
Accurate catch accounting is important to NMFS and the CDQ groups because each CDQ group is allocated a specific quota amount for most TAC and PSC categories. The need for accurate accounting led NMFS and the Council to develop very specific regulations for the CDQ Program concerning observer coverage and the standard sources of data that can be used to determine how much of a given quota had been harvested. However, NMFS and the Council intended to ensure that alternative methods of catch accounting could be proposed by CDQ groups and considered by NMFS. In order to allow this flexibility, a CDQ group is allowed to propose an alternative fishing plan for a given vessel as part of its CDP. A group may suggest the use of non-standard sources of data for catch accounting purposes if these data provide equivalent or better estimates of CDQ harvest. A group may also propose the use of one, level 2 observer on a catcher/processor using nontrawl gear, rather than the standard two observers, provided such an alternative fishing plan can demonstrate that a single observer will be able to sample all CDQ sets within the constraints on an observer's duty schedule.
Alternative fishing plans are proposed in the initial CDPs or as subsequent substantial amendments to the CDPs. Since the beginning of 2003 (the start of the last CDP cycle), 13 alternative fishing plans have been approved by NMFS. Each alternative fishing plan
must be reviewed by the State as well as reviewed and approved by NMFS.
This proposed rule requires CDQ groups to submit alternative fishing plans directly to NMFS, rather than submitting them for review and approval by both the State and NMFS through their CDPs or amendments to their CDPs. An alternative fishing plan would be an attachment to a CDQ group's request for approval of an eligible vessel. The proposed rule would move regulations about alternative fishing plans from Sec. 679.30 to Sec. 679.32 and would add the requirement that the approved alternative fishing plan be provided to the operator of the vessel who must maintain a copy of the approved alternative plan onboard the vessel when operating under the alternative fishing plan. None of the information requirements associated with alternative fishing plans would be changed by this proposed rule, only the process for submission, review, and approval.
Similar to what is described for CDQ and PSQ transfers above, this measure would reduce the time required for the approval or disapproval of an alternative fishing plan, and, thus, the associated costs to the CDQ groups, the State, and NMFS. The content of proposed alternative fishing plans relates to catch accounting and observer coverage aspects of the CDQ Program, items which are directly under NMFS's purview. NMFS would assume the entire responsibility for the review and approval of each alternative fishing plan. Alternative fishing plans would be valid through the end of the year in which they were approved.
There are several minor changes to Sec. Sec. 679.2, 679.5, 679.7, 679.22, 679.32 and 679.50 that flow from the proposed changes to Sec. Sec. 679.30 and 679.32. These include changes in wording, cross- referencing, and revisions and additions to definitions.
The definitions for ``CDQ group number'' and ``groundfish CDQ fishing'' are revised to remove references to approval of eligible vessels and processors as part of a CDP. The definition for ``CDQ representative'' is revised to allow more than one person to be authorized by a CDQ group to sign and submit documents to NMFS. In most cases, the executive director signs documents related to the CDPs, and the quota managers or other staff sign documents related to quota transfers, eligible vessels, and alternative fishing plans. A new definition for ``eligible vessel'' is added to support the use of that term elsewhere in 50 CFR part 679.
Additionally, NMFS proposes to revise several paragraphs within Sec. Sec. 679.7, 679.30, and 679.32 to remove requirements that a CDQ group must ensure its respective fishing and processing partners' compliance with regulations in 50 CFR part 679. Although there are instances where a CDQ group may be held jointly responsible for violations of its respective fishing and processing partners, NMFS proposes to remove these regulations because the requirement was more specifically addressed in the substantive sections, and because the regulations appeared to hold the CDQ group responsible for some activities where the CDQ group was not able to direct, control, or otherwise affect the operations or action of its partners.
NMFS proposes to make the following revisions to clarify the responsibilities of the CDQ groups:
1. In Sec. 679.7(d), remove paragraph (24) which states that it is unlawful for a CDQ group to fail to ensure that all vessels and processors listed as eligible on the CDQ group's approved CDP comply with all regulations in this part while fishing for CDQ.
2. In Sec. 679.30(a), remove the sentence in the middle of the paragraph that reads ``In addition, the CDQ group is responsible to ensure that vessels and processors listed as eligible on the CDQ group's approved CDP comply with all requirements of this part while harvesting or processing CDQ species.''
3. In Sec. 679.30(f), remove paragraph (6) which states that the CDQ groups are responsible for ensuring compliance by the CDQ harvesting vessels and CDQ processors of the activities listed.
4. In Sec. 679.32(a), revise the paragraph to include a more general statement of applicability for the entire section. The individual paragraphs within the section would include the specific applicability of each topic to CDQ groups, vessel operators, and processors.
NMFS has determined that the proposed rule is consistent with the FMP and initially determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY section of the preamble. A copy of the IRFA is available from NMFS (see ADDRESSES).
The following summary of the IRFA addresses the remaining requirements of section 603(b)(1) - (5) of the RFA:
The entities that would be directly regulated by this proposed action are the 6 CDQ groups that represent the 65 western Alaska communities that currently participate in the CDQ Program and the owners and operators of vessels harvesting CDQ on behalf of the CDQ groups. The CDQ 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 a not-for-profit entity and none is dominant in its field. Consequently, each is a small entity under the RFA. Many of the 83 vessels and at least 3 of the 10 shoreside processors participating in the groundfish CDQ fisheries are small entities. The proposed action would revise CDQ regulations regarding the processes for transferring quota, identifying eligible vessels, and approving alternative fishing plans. These processes would be streamlined by removing some information requirements and the requirement that applications for these actions be reviewed by the State before submission to NMFS for action. These revisions would reduce the reporting burden on the CDQ groups, processors, and vessel owners. The proposed action also would relax restrictions on the transfer of PSQ among the CDQ groups. These revisions would allow the CDQ groups to transfer PSQ at any time during the year, instead of solely during the month of January. The groups also would be allowed to transfer PSQ alone, rather than being required to transfer PSQ together with other groundfish CDQ. Although the CDQ groups' fishing has not yet been significantly restricted by either of these requirements, the relaxation of these requirements may allow the CDQ groups the added flexibility that would be needed to increase the harvest of target species allocations in the future. Finally, the proposed action would add three new requirements. First, a CDQ group would be required to provide a copy of an eligible vessel request approved by NMFS, and alternative fishing plan if applicable, to the vessel operator. Second, the vessel operator would be required to maintain a copy of
the eligible vessel request, and alternative fishing plan if applicable, onboard the vessel at all times while harvesting, transporting, or offloading CDQ. Third, a CDQ group would be required to notify the vessel operator if the vessel is removed from eligibility to fish for CDQ. Overall, the proposed action would have no known adverse impacts on the profitability or competitiveness of small, directly regulated entities.
All of the proposed revisions in the proposed action are related to recordkeeping and reporting requirements. These requirements apply primarily to the CDQ groups, because these groups submit the CDQ and PSQ transfer request forms, the request for approval of an eligible vessel forms, and the alternative fishing plans. The professional skills that are necessary to prepare and submit the forms required from a CDQ group and to provide a copy of the signed form and alternative fishing plan, if applicable, to vessel operators include: (1) the ability to read, write, and speak in English, (2) the ability to use computer and communications equipment, (3) knowledge of the CDQ group's fishing activities, including contractual arrangements with vessel operators and processing plants, and quota balances, and (4) the authority to sign and submit documents to NMFS on behalf of the CDQ group. These responsibilities generally are fulfilled by a member of the CDQ group's professional staff. The professional skills necessary for a vessel operator to maintain a copy of the signed authorization form and alternative fishing plan, if applicable, onboard the vessel include the ability to read or understand verbal instructions in English, and the organizational skills necessary to receive a document from the CDQ group and maintain it in good, readable condition in a place on the vessel where it can be retrieved if requested by U.S. Coast Guard or NMFS enforcement officers.
The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.
An IRFA must include a description of any significant alternatives to the proposed rule which accomplish the stated objectives of the applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.
The objective of the recordkeeping and reporting requirements for the CDQ Program is to appropriately balance the requirements for conservation and management of the groundfish CDQ fisheries under the Magnuson-Stevens Act, with the requirements to minimize economic burdens under both the Magnuson-Stevens Act National Standard 7 (to minimize costs and avoid unnecessary duplication) and the Paperwork Reduction Act (to minimize the economic burden of recordkeeping and reporting requirements). The Council, NMFS, and the State evaluated these current recordkeeping and reporting requirements and identified several areas where the requirements could be reduced and three areas where additional requirements are needed. These revisions were incorporated as elements in a single preferred alternative which is summarized in section 1.6.1 of this analysis.
NMFS considered but did not identify any alternative to the preferred alternative (the proposed rule) that would meet both elements of the RFA's definition of a significant alternative, that is, an alternative that both accomplishes the stated objectives of applicable statutes and minimizes any significant economic impact on small entities. For example, NMFS could have proposed an alternative to remove all recordkeeping and reporting requirements related to quota transfers, eligible vessels, and alternative fishing plans. Removing reporting requirements theoretically could reduce reporting costs, but the lack of standardized reporting requirements to affect quota transfers, to identify vessels fishing in the CDQ fisheries, and to provide information to NMFS about proposed alternative fishing plans would not be consistent with NMFS's interpretation of its fishery conservation and management responsibilities under the Magnuson-Stevens Act.
As another example, under an alternative removing reporting requirements, NMFS would have regulations that authorize quota transfers, but no regulations defining what information must be submitted to NMFS to make the necessary changes to the CDQ groups' quota accounts. Quota transfer requests could come in by telephone or in writing and might not include all the information that NMFS would need to make the revisions to computer programs establishing quota account balances. NMFS could not make the quota transfers that the groups request without this information. Without information about the vessels that the CDQ groups authorize to fish on their behalf (the eligible vessels), NMFS would not have the information it needs to ensure that catch made on behalf of a CDQ group was properly accounted for against the group's allocation. This situation could undermine NMFS's ability to manage CDQ catch within CDQ allocations, which would be in conflict with NMFS's conservation and management responsibilities under the Magnuson-Stevens Act. Without regulations defining the information NMFS needs in an alternative fishing plan, NMFS would have regulations authorizing a CDQ group to submit an alternative fishing plan for NMFS's review and approval, but no guidelines about what information must be submitted in order for NMFS to approve an alternative fishing plan. This situation would create confusion and reduce the CDQ group's ability to effectively apply for a cost-saving benefit available under NMFS's regulations.
NMFS could have also proposed only the elements of the preferred alternative (the proposed rule) that reduce reporting requirements without proposing the three new requirements that CDQ groups provide a copy of the approved eligible vessel form, and alternative fishing plan if applicable, to each approved eligible vessel; that the vessel operator maintain a copy of the approved form, and alternative fishing plan if applicable, onboard the vessel; and that a CDQ group notify the vessel operator if the vessel is removed from eligibility to fish for CDQ. While this alternative might reduce the recordkeeping and reporting costs for the CDQ groups more than the preferred alternative, it would not include important elements needed for enforcement of the CDQ Program regulations, which would be inconsistent with NMFS's conservation and management responsibilities under the Magnuson-Stevens Act.
This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under OMB Control Number 0648-0269. The public reporting burden is estimated to average: 520 hours for a Community Development Plan; 40 hours for a Substantial Amendment; 8 hours for a Technical Amendment; 30 minutes for a CDQ or PSQ Transfer Request; 1 hour for a Request for Approval of an Eligible Vessel; and 4 hours for an Alternative Fishing Plan. The estimated time to respond to each requirement includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding the following issues: 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 (see ADDRESSES), and by e-mail to DRostker@omb.eop.gov, or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: November 19, 2004. Rebecca Lent, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For the reasons set forth in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 continues to read as follows:
2. In Sec. 679.2, revise the definitions for ``CDQ group number,'' ``CDQ representative,'' and ``Groundfish CDQ fishing'' and add the definition for ``Eligible vessel,'' in alphabetical order, to read as follows:
Sec. 679.2 Definitions.
* * * * *
CDQ group number means a number assigned to a CDQ group by NMFS that must be recorded and is required in all logbooks and all reports submitted by the CDQ group, vessels harvesting CDQ, or processors taking deliveries of CDQ. * * * * *
CDQ representative means any individual who is authorized by a CDQ group to sign documents submitted to NMFS on behalf of the CDQ group. * * * * *
Eligible vessel means, for the purposes of the CDQ program, a fishing vessel designated by a CDQ group to harvest part or all of its CDQ allocation and approved by NMFS under Sec. 679.32(c). * * * * *
Groundfish CDQ fishing means fishing by an eligible vessel that results in the catch of any groundfish CDQ species, but that does not meet the definition of halibut CDQ fishing. * * * * *
3. In Sec. 679.5, add paragraphs (n)(3) and (n)(4) to read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(n) * * *
(3) CDQ or PSQ transfer request--(i) Who must submit a CDQ or PSQ transfer request? A CDQ group requesting transfer of CDQ or PSQ to or from another CDQ group must submit a complete CDQ or PSQ transfer request to NMFS.
(ii) Information required--(A) Transferring CDQ group information. For the group transferring CDQ, enter: the CDQ group name or initials; the CDQ group number as defined at Sec. 679.2; and the telephone and fax numbers, and the printed name and signature of the CDQ group representative.
(B) Receiving CDQ group information. For the group receiving CDQ, enter: the CDQ group name or initials; the CDQ group number as defined at Sec. 679.2; and the telephone and fax numbers, and the printed name and signature of the CDQ group representative.
(C) CDQ amount transferred--(1) Species or Species Category. For each species for which a transfer is being requested, enter the species name or species category.
(2) Area. Enter the management area associated with a species category, if applicable.
(3) Amount transferred. Specify the amount being transferred. For groundfish, specify transfer amounts to the nearest 0.001 mt. For halibut CDQ, specify the amount in pounds (net weight).
(D) PSQ amount transferred--(1) Species or Species Category. For each species for which a transfer is being requested, enter the species name or species category.
(2) Crab zone. For crab only, designate the appropriate zone for each PSQ being transferred, if applicable.
(3) Amount transferred. Specify the amount being transferred. For crab and salmon, specify transfer amounts in numbers of animals. For halibut, specify the amount to the nearest 0.001 mt.
(4) Request for approval of an eligible vessel--(i) Who must submit a request for approval of an eligible vessel? A CDQ group must submit a complete request for approval of an eligible vessel to NMFS for each vessel that will be groundfish CDQ fishing and for each vessel equal to or greater than 60 ft (18.3 m) LOA that will be halibut CDQ fishing. See Sec. 679.32(c) for more information about this requirement.
(ii) Information required--(A) Vessel information. Enter the vessel name, Federal fisheries permit number, if applicable, ADF&G vessel registration number, and LOA. Indicate all the gear types that will be used to catch CDQ.
(B) Vessel contact information. Enter the name, mailing address, telephone number, and e-mail address (if available) of a contact person representing the vessel.
(C) Method to determine CDQ and PSQ catch. Select the method that will be used to determine CDQ and PSQ catch, either NMFS standard sources of data or an alternative method. If the selection is ``NMFS standard sources of data,'' select either ``all trawl vessels greater than or equal to 60 ft (18.3 m) LOA using non-trawl gear'' or ``catcher vessels greater than or equal to 60 ft (18.3 m) LOA using non-trawl gear.'' If the selection is ``catcher vessels greater than or equal to 60 ft (18.3 m) LOA using non-trawl gear,'' select either Option 1 or Option 2, described at Sec. 679.32(e)(2)(iv). If an alternative method (fishing plan) is proposed, it must be attached to the request for approval of an eligible vessel.
(D) Notice of submission and review. Enter the name, telephone number, and fax number of the CDQ group's CDQ representative; the date submitted to NMFS; and signature of the CDQ group's CDQ representative. * * * * *
Sec. 679.7 [Amended]
4. In Sec. 679.7, remove paragraph (d)(24) and redesignate paragraph (d)(25) as (d)(24).
5. In Sec. 679.30, remove paragraphs (e)(3), (e)(4), (f)(6), and (g)(4)(iv)(H); redesignate paragraph (f)(7) as (f)(6); and revise paragraph (a) introductory text, paragraphs (a)(5), (e), newly redesignated paragraph (f)(6), and paragraphs (g)(4)(ii), (g)(4)(iv)(G), to read as follows:
Sec. 679.30 General CDQ regulations.
(a) Application procedure. The CDQ program is a voluntary program. Allocations of CDQ and PSQ are made to CDQ groups and not to vessels or processors fishing under contract with any CDQ group. Any vessel or processor
harvesting or processing CDQ or PSQ on behalf of a CDQ group must comply with all other requirements of this part. Allocations of CDQ and PSQ are harvest privileges that expire upon the expiration of the CDP. When a CDP expires, further CDQ allocations are not implied or guaranteed, and a qualified applicant must re-apply for further allocations on a competitive basis with other qualified applicants. The CDQ allocations provide the means for CDQ groups to complete their CDQ projects. A qualified applicant may apply for CDQ and PSQ allocations by submitting a proposed CDP to the State during the CDQ application period that is announced by the State. A proposed CDP must include the following information: * * * * *
(5) Harvesting plans. A narrative description of how the CDQ group intends to harvest and process its CDQ allocations, including a description of the target fisheries, the types of vessels and processors that will be used, the locations and methods of processing, and the CDQ group's proposed partners. * * * * *
(e) Transfers--(1) Transfer of annual CDQ and PSQ. CDQ groups may request that NMFS transfer CDQ or PSQ from one group to another group by each group submitting a completed transfer request as described in Sec. 679.5(n)(3). NMFS will approve the transfer request if the CDQ group transferring quota to another CDQ group has sufficient quota available for transfer. If NMFS approves the request, NMFS will make the requested transfer(s) by decreasing the account balance of the CDQ group from which the CDQ or PSQ species is transferred and by increasing the account balance of the CDQ group receiving the transferred CDQ or PSQ species. NMFS will not approve transfers to cover overages of CDQ or PSQ. The CDQ or PSQ will be transferred as of the date NMFS approves the transfer request and is effective only for the remainder of the calendar year in which the transfer occurs.
(2) Transfer of CDQ and PSQ allocation. CDQ groups may request that some or all of one group's CDQ or PSQ allocation, as defined at Sec. 679.2, be transferred by NMFS to another group by each group filing an amendment to its respective CDP through the CDP substantial amendment process set forth at paragraph (g)(4) of this section. The CDQ or PSQ allocation will be transferred as of January 1 of the calendar year following the calendar year NMFS approves the amendments of both groups and is effective for the duration of the CDPs. Transfers of CDQ and PSQ allocations must be in whole integer percentages.
(f) * * *
(6) Comply with all requirements of this part.
(g) * * *
(4) * * *
(ii) NMFS will notify the State in writing of the approval or disapproval of the amendment within 30 days of receipt of both the amendment and the State's recommendation. Once a substantial amendment is approved by NMFS, the amendment will be effective for the duration of the CDP. * * * * *
(iv) * * *
(G) Any transfer of a CDQ allocation or a PSQ allocation. * * * * *
6. In Sec. 679.32, redesignate paragraph (d) as (e), and paragraph (c) as (d); revise paragraphs (a) and newly redesignated paragraph (e)(2) introductory text; and add new paragraphs (c) and (e)(3) to read as follows:
Sec. 679.32 Groundfish and halibut CDQ catch monitoring.
(a) Applicability. This section contains requirements for CDQ groups and operators of vessels, or managers of processors that harvest and/or process groundfish CDQ, including vessels equal to or greater than 60 ft (18.3 m) LOA that are halibut CDQ fishing. * * * * *
(c) Vessels eligible for groundfish and halibut CDQ fisheries. The following information must be provided by the CDQ group for all vessels that are groundfish CDQ fishing and all vessels equal to or greater than 60 ft (18.3 m) LOA that are halibut CDQ fishing.
(1) Request for approval of an eligible vessel. Prior to a vessel participating in the CDQ fishery, a CDQ group must submit to NMFS a completed request for approval of an eligible vessel as described at Sec. 679.5(n)(4). NMFS will approve all vessels for which a completed request is submitted. Once approved, a vessel will remain eligible until December 31 of the last year in the current CDQ allocation cycle under Sec. 679.30(d), or until the CDQ group removes the vessel from eligibility under paragraph (c)(2) of this section. A list of eligible vessels for each CDQ group will be publicly available from the Alaska Regional Office or on the NMFS website at http://www.fakr.noaa.gov. The
CDQ group must provide a copy of the NMFS-approved eligible vessel request to the operator of the approved vessel. The vessel operator must maintain a copy of the eligible vessel request approved by NMFS onboard the vessel at all times while harvesting, transporting, or offloading CDQ.
(2) Removing a vessel from eligibility. A CDQ group may remove a vessel from eligibility to harvest CDQ on its behalf by advising NMFS by letter of the removal. Removal of a vessel from eligibility to harvest CDQ will be effective on the date that NMFS approves the request and notifies the CDQ group of NMFS's approval. Upon receipt of notification of NMFS's approval, the CDQ group must notify the operator of the vessel of the vessel's removal from eligibility to harvest CDQ on behalf of the CDQ group. * * * * *
(e) * * *
(2) Verification of CDQ and PSQ catch reports. CDQ groups may specify the sources of data listed below as the sources they will use to determine CDQ and PSQ catch on the CDQ catch report by specifying ``NMFS standard sources of data'' on their request for approval of an eligible vessel. In the case of a catcher vessel using nontrawl gear, the CDQ group must specify on their request for approval of an eligible vessel whether the vessel will be retaining all groundfish CDQ (Option 1) or discarding some groundfish CDQ species at sea (Option 2). CDQ species may be discarded at sea by these vessels only if the requirements of paragraph (d)(2)(ii)(B) of this section are met. NMFS will use the following sources to verify the CDQ catch reports, unless an alternative catch estimation procedure is approved by NMFS under paragraph (e)(3) of this section. * * * * *
(3) Alternative methods for verification of CDQ and PSQ catch. The method to be used to determine CDQ and PSQ catch for each vessel must be listed by a CDQ group on the request for approval of an eligible vessel. A CDQ group may propose the use of an alternative method, such as using only one observer where normally two would be required, sorting and weighing of all catch by species on processor vessels, or using larger sample sizes than could be collected by one observer, by submitting an alternative fishing plan attached to its request for approval of an eligible vessel. NMFS will review the alternative fishing plan and approve it or notify the qualified applicant in writing if the proposed alternative does not meet the requirements listed under paragraphs (e)(3)(i) through (iv) of this section. The CDQ group must provide a copy of the approved alternative fishing plan to the
operator of the approved vessel. A copy of the alternative fishing plan approved by NMFS must be maintained onboard the vessel at all times while it is operating under the alternative fishing plan. Alternative fishing plans are valid for the remainder of the calendar year in which they are approved. Alternatives to the requirement for a certified scale or an observer sampling station will not be approved. NMFS will review the alternative fishing plan to determine if it meets all of the following requirements:
(i) The alternative proposed must provide equivalent or better estimates than use of the NMFS standard data source would provide and the estimates must be independently verifiable;
(ii) Each haul or set on an observed vessel must be able to be sampled by an observer for species composition;
(iii) Any proposal to sort catch before it is weighed must ensure that the sorting and weighing process will be monitored by an observer; and
(iv) The time required for the level 2 observer to complete sampling, data recording, and data communication duties must not exceed 12 hours in each 24-hour period and the level 2 observer must not be required to sample more than 9 hours in each 24-hour period. * * * * *
Sec. Sec. 679.5, 679.7, 679.22, 679.32, and 679.50 [Amended]
7. In the table below, for each of the paragraphs shown under the ``Paragraph'' column, remove the phrase indicated under the ``Remove'' column and replace it with the phrase indicated under the ``Add'' column for the number of times indicated in the ``Frequency'' column.
(Option 1 in the (Option 1 under 1 679.5(n)(2)(iv) CDP).
Sec. introductory text
(Option 2 in the (Option 2 under 1 679.5(n)(2)(v) CDP).
Sec. introductory text
Sec. 679.7(d)(4) eligible vessel on eligible vessel for 1 an approved CDP for
Sec. 679.7(d)(6) eligible vessel eligible vessel, 1 through (10)
listed on an
use approved CDP, use
Sec. 679.7(d)(11) to an eligible to a processor 1 processor listed unless on an approved CDP unless
Sec. 679.7(d)(21) approved in the CDP approved by NMFS to 1 to
aboard, except as aboard, unless 1 679.7(f)(3)(ii) provided under an fishing on behalf approved CDP.
of a CDQ group and authorized under Sec. 679.32(c).
it is operating it is directed 1 679.22(a)(5)(ii) under a CDP
fishing for approved by NMFS. pollock CDQ.
paragraph (c)(3) or paragraph (d)(3) or 1 679.32(d)(1)(i) (c) (4) of this (d)(4) of this section,
paragraph (c)(4) of paragraph (d)(4) of 1 679.32(d)(1)(ii) this section.
paragraph (c)(3) or paragraph (d)(3) or 1 679.32(d)(2)(i)(A) (c) (4) of this (d)(4) of this section
paragraph (c)(3) or paragraph (d)(3) or 1 679.32(d)(2)(ii)(A (c) (4) of this (d)(4) of this )
for the vessel in for the vessel. 1 679.32(d)(4)(iv) the CDP. Each
the vessel until 1 679.32(e)(2)(i) delivered to a delivered to a shoreside
processor, and processor listed sorted and weighed as eligible in the in compliance with CDP, and sorted paragraph (d)(3) and weighed in of this section. compliance with paragraph (c)(3) of this section.
processor listed as processor, and 1 679.32(e)(2)(iii) eligible in the sorted and weighed CDP, and sorted in compliance with and weighed in paragraph (d)(3) compliance with of this section. paragraph (c)(3) of this section.
paragraph (c)(3) of paragraph (d)(3) of 1 679.32(e)(2)(iv)(A this section
this section )
Sec. 679.32(f)(3) paragraphs (b) paragraphs (b) 1 through (d) of through (e) of this section,
this section, including the
including the retention of all retention of all groundfish CDQ, if groundfish CDQ, if option 1 under Option 1 under Sec.
Sec. 679.32(c)(2)(ii) 679.32(d)(2)(ii) is selected in the is selected. CDQ CDP. CDQ
1 679.50(c)(4)(ii) approves a CDP approves an authorizing
alternative fishing plan under Sec. 679.32(e)(3) authorizing
NMFS may approve a NMFS may approve an 1 679.50(c)(4)(ii) CDP authorizing alternative fishing plan authorizing
NMFS will not
NMFS will not
1 679.50(c)(4)(ii) approve a CDP that approve an alternative fishing plan that
described at Sec. described at Sec. 1 679.50(c)(4)(v)(A) 679.32(c)(2)(ii)(A 679.32(d)(2)(ii)(A )) for
described at Sec. described at Sec. 1 679.50(c)(4)(v)(B) 679.32(c)(2)(ii)(B 679.32(d)(2)(ii)(B )) for
described at Sec. described at Sec. 1 679.50(d)(5)(ii)(B 679.32(c)(2)(ii)(A 679.32(d)(2)(ii)(A )
described at Sec. described at Sec. 1 679.50(d)(5)(ii)(C 679.32(c)(2)(ii)(B 679.32(d)(2)(ii)(B )
[FR Doc. 04-26177 Filed 11-24-04; 8:45 am]
BILLING CODE 3510-22-S