[Federal Register: July 6, 2006 (Volume 71, Number 129)]
[Rules and Regulations]
[Page 38298-38301]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy06-13]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 680
[Docket No. 060404093-6177-02; I.D. 033106A]
RIN 0648-AU24
Fisheries of the Exclusive Economic Zone Off Alaska; Allocating
Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule implementing changes to the
regulations for the Crab Rationalization Program. This action is
necessary to correct two discrepancies in the scope of the sideboard
protections for Gulf of Alaska (GOA) groundfish fisheries provided in a
previous rulemaking. Specifically, this
[[Page 38299]]
action would remove the sideboard restrictions from vessels that did
not generate Bering Sea snow crab (Chionoecetes opilio) quota share and
would apply the sideboards to federally permitted vessels operating in
the State of Alaska (State) parallel fisheries. This action is intended
to promote the goals and objectives of the Fishery Management Plan for
Bering Sea/Aleutian Islands King and Tanner Crabs (FMP), the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),
and other applicable law.
DATES: Effective on August 7, 2006.
ADDRESSES: Copies of the regulatory impact review/initial regulatory
flexibility analysis (RIR/IRFA) and Final Regulatory Flexibility
Analysis (FRFA) prepared for this action, and copies of the Bering Sea
and Aleutian Islands Crab Fisheries Final Environmental Impact
Statement (EIS) prepared for the Crab Rationalization Program may be
obtained from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802,
Attn: Ellen Walsh, Records Officer, and from the NMFS Alaska Region
website at http://www.fakr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228 or
gretchen.harrington@noaa.gov.
SUPPLEMENTARY INFORMATION: In January 2004, the U.S. Congress amended
section 313(j) of the Magnuson-Stevens Act through the Consolidated
Appropriations Act of 2004 (Public Law 108-199, section 801). As
amended, section 313(j)(1) requires the Secretary of Commerce to
approve and implement by regulation the Crab Rationalization Program
(Program), as it was approved by the North Pacific Fishery Management
Council (Council). In June 2004, the Council consolidated its actions
on the Program into Amendment 18 to the FMP. Additionally, in June
2004, the Council developed Amendment 19 to the FMP, which represents
minor changes necessary to implement the Program. NMFS published a
final rule to implement Amendments 18 and 19 on March 2, 2005 (70 FR
10174).
NMFS published the proposed rule for the sideboard restriction
regulatory change in the Federal Register on April 24, 2006 (71 FR
20966), with a public comment period through May 9, 2006. NMFS received
no public comments on the proposed rule.
This final rule corrects two aspects of the sideboard provisions in
the regulations implementing the Program. One change removes the
sideboard limits from vessels that did not generate Bering Sea snow
crab quota share under the Program. The second change clarifies that
the sideboard protections apply to federally permitted vessels that
fish in the State parallel groundfish fisheries. These changes are
necessary to implement the Program's sideboard provisions. A
description of this action is provided in the preamble to the proposed
rule and is briefly summarized here.
State parallel fisheries occur in State waters but are opened at
the same time as Federal fisheries in Federal waters. State parallel
fishery harvests are considered part of the Federal total allowable
catch (TAC) and federally permitted vessels move between State and
Federal waters during the concurrent parallel and Federal fisheries.
The State opens the parallel fisheries through emergency order by
adopting the groundfish seasons, bycatch limits, and allowable gear
types that apply in the adjacent Federal fisheries.
Sideboard limits restrict the ability of vessels whose histories
resulted in Bering Sea snow crab quota share, or fishing under License
Limitation Program (LLP) licenses derived from those vessels, to
participate in GOA groundfish fisheries. The purpose of the sideboard
limits is to prevent vessels that traditionally participated in the
Bering Sea snow crab fishery from using the flexibility of the Program
to increase their participation in the GOA groundfish fisheries, and
primarily the GOA Pacific cod fishery. Historically, the Bering Sea
snow crab fishery and GOA groundfish fisheries operated concurrently
from January through March, meaning that a crab vessel owner had to
decide whether to fish for Bering Sea snow crab or GOA groundfish but
could not participate fully in both fisheries. With crab
rationalization, vessel owners have the flexibility to fish for snow
crab during a greatly extended season, or to lease their crab
individual fishing quota (IFQ) and not fish at all. This increased
flexibility for crab fishermen could lead to increases in fishing
effort in GOA groundfish fisheries, especially the Pacific cod fishery,
and could negatively affect the other participants in those fisheries.
Need for Regulatory Changes
This action makes two changes to the regulations governing
sideboard provisions for the GOA groundfish fisheries at 50 CFR 680.22.
The first change removes the sideboard restrictions from vessels whose
histories did not generate Bering Sea snow crab quota share. The second
change clarifies that the sideboard restrictions apply to federally
permitted vessels that fish in the State parallel groundfish fisheries.
The Council intended the sideboards to apply to vessels that
qualify for Bering Sea snow crab quota share under the Program. The
proposed rule for the Program included regulatory language to this
effect (69 FR 63200, October 29, 2004). However, this language was
changed in the final rule to apply the sideboards to vessels that had
snow crab landings during the qualifying period. This change has the
unintended consequence of applying the sideboards to vessels that did
not qualify for quota share. This final rule changes the regulatory
language to reflect the original language in the Program's proposed
rule. NMFS received no public comments on this aspect of the Program's
proposed rule.
The existing regulations restrict participation in Federal
fisheries but not in the adjacent State waters fisheries. This omission
in the regulations would allow vessels whose history generated quota
share to increase their participation in the groundfish fisheries. This
final rule changes the regulations to clarify that the GOA groundfish
sideboard directed fishing closures apply to federally permitted
vessels while fishing in the State parallel fisheries.
NMFS finds it necessary to apply the sideboard limits to federally
permitted vessels fishing in State parallel fisheries in order to
implement the FMP. Without this regulatory change, vessels that
traditionally participated in the Bering Sea snow crab fishery could
use the flexibility of the Program to increase their participation in
the GOA groundfish fisheries, and primarily the GOA Pacific cod
fishery, because they could circumvent the directed fishing closures by
fishing in State waters. NMFS has notified the public that it will
implement the sideboard limits in the State parallel fisheries in the
preamble to the proposed and final rules for the Program and in the
notice of availability for Amendments 18 and 19.
Changes from the Proposed Rule
One non-substantive change was made from the proposed rule to the
final rule. In Sec. 680.22(f), the phrase ``that are required to
have'' was changed to ``with'' because the term ``required'' implied
that a Federal Fisheries Permit or LLP license was required in State
waters. The term ``with'' clarifies that Federal regulations apply to
vessels operating under Federal permits.
Classification
NMFS has determined that the final rule is consistent with the FMP,
the
[[Page 38300]]
Magnuson-Stevens Act, and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a final regulatory flexibility analysis (FRFA) as
required by section 604(a) of the Regulatory Flexibility Act (RFA). The
FRFA describes the economic impact this rule will have on small
entities. A description of the action, why it is being considered, and
the legal basis for it are included at the beginning of this section in
the preamble and in the SUMMARY section of the preamble. A summary of
the analysis follows. A copy of this analysis is available from NMFS
(see ADDRESSES).
Issues Raised by Public Comments on the IRFA
NMFS received no public comments on the IRFA.
Need for and Objectives of this Action
This action is necessary to correct two aspects of the sideboard
provisions in the regulations implementing the Program that were
inadvertently misstated at 50 CFR 680.22.
Number and Description of Small Entities Directly Regulated by the Rule
One hundred and ninety five entities are subject to the sideboard
regulations and fish in the GOA groundfish fisheries. A fishing
operation is considered to be a small entity for RFA purposes if its
total annual gross receipts, from all sources, is less than $4 million.
The 2004 gross revenue data from the State fishticket database is
readily available and includes revenue from all fishing operations in
Alaska and adjacent EEZ waters. Based on these data, as many as 189 of
the 195 entities may be considered small.
Description of Significant Alternatives and a Description of Steps
Taken to Minimize the Significant Economic Impacts on Small Entities
No significant alternatives to the proposed rule exist that
accomplish the stated objectives, are consistent with applicable
statutes, and would minimize the economic impact of the proposed rule
on small entities. A no action alternative was considered, but was
rejected because it did not meet the objectives of the Program's
sideboard provisions. No significant adverse effects are shown for this
action.
The Council created the sideboards with the expressed purpose of
restricting the owners of vessels acquiring snow crab quota share from
using the resulting increased operational flexibility to expand their
participation in the already fully subscribed GOA groundfish fisheries.
The proposed regulatory changes are necessary owing to the introduction
of two inconsistencies that exist between the Program provisions and
the language in the implementing regulations. These corrections will
implement the sideboards as intended by the Council.
Sideboards on Vessels Without Quota Share
Six small entities, as defined for RFA purposes, would be directly
regulated by the removal of the sideboard provisions from vessels that
did not generate snow crab quota shares. These entities are currently,
although inadvertently, subject to the economic burden of the sideboard
restrictions, despite not having qualified for snow crab quota shares.
The proposed action would lift this uncompensated burden from these six
small entities by removing their sideboard restrictions.
Sideboards in the State Parallel Groundfish Fisheries
As promulgated, the current regulatory language may allow federally
permitted vessels to circumvent the Program's sideboards by fishing
only in the State parallel groundfish fisheries in the GOA. Since the
start of the 2006 A season Pacific cod fishery (the first GOA
groundfish opening following implementation of the current Program
provisions), no vessels prohibited by these sideboard provisions from
fishing for Pacific cod have fished in the State parallel fisheries.
The fact that no vessels currently are exploiting this loophole in the
regulations is testament to the clear intent that the sideboards apply
to the State parallel fisheries, and the plain language understanding
of the term ``GOA.'' This action proposes to correct the sideboard
provisions of the Program's implementing regulations, by applying them
to federally permitted vessels fishing in State parallel groundfish
fisheries. Therefore, the preferred action has no economic effects
beyond those considered in the EIS prepared for the Program (see
ADDRESSES).
Sideboard restrictions prevent adverse spillover effects in other
fisheries from an influx of effort from the rationalized crab
fisheries. The Crab Rationalization Program, because it issued quota
share to vessel owners and provided them the ability to form
cooperatives, provides these directly regulated entities substantial
economic benefits, as discussed in the EIS prepared for the Program
(see ADDRESSES). As discussed in that analysis, the sideboard limits
prevent these participants from using these benefits to increase their
effort in the GOA groundfish fisheries. The sideboard restrictions
provide the sideboarded vessels the ability to maintain their historic
harvest levels in GOA groundfish fisheries, and therefore, do not make
the sideboarded vessels worse-off economically. Vessels with minimal
harvests in the snow crab fisheries and substantial harvests in the
Pacific cod fishery would be exempt from the sideboard restrictions,
since these vessels have little dependence on the crab fisheries. In
addition, vessels with less than a minimum historic harvest from GOA
groundfish fisheries are not permitted to participate in GOA groundfish
fisheries.
The proposed action does not likely have the potential to impose
disproportionate impacts on small entities, relative to large entities.
The regulatory change applying the sideboard constraints to State
waters during the parallel fisheries would provide all qualifying
vessels, large and small, a level playing field upon which to operate,
as had been the intention of the Council from the outset. Because this
change merely rescinds an unintentional and unexploited regulatory
loophole, the only possible effect is to codify the commonly held
understanding among the fishing industry of the sideboard rule.
This rule does not have the potential to significantly reduce
profits for small entities. The absence of cost data precludes
quantitative estimation of potential impacts on profitability, although
these would be expected to be minimal, because no vessels chose to
exploit this loophole in the 2006 A season (the first groundfish
fishery after sideboard implementation).
This regulation does not impose new recordkeeping and reporting
requirements on any directly regulated small entities.
Small Entity Compliance Guide
NMFS has posted a small entity compliance guide on the Internet at
http://www.fakr.noaa.gov/sustainablefisheries/crab/rat/progfaq.htm to
satisfy the Small Business Regulatory Enforcement Fairness Act of 1996,
which requires a plain language guide to assist small entities in
complying with this rule. Contact NMFS to request a hard copy of the
guide (see ADDRESSES).
List of Subjects in 50 CFR Part 680
Alaska, Fisheries, Reporting and recordkeeping requirements.
[[Page 38301]]
Dated: June 29, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, NMFS amends 50 CFR part 680 as
follows:
PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF
ALASKA
0
1. The authority citation for part 680 continues to read as follows:
Authority: 16 U.S.C. 1862.
0
2. In Sec. 680.22, paragraph (a)(1)(i) is revised and paragraph (f) is
added to read as follows:
Sec. 680.22 Sideboard protections for GOA groundfish fisheries.
* * * * *
(a) * * *
(1) * * *
(i) Any non-AFA vessel that made a legal landing of Bering Sea snow
crab (C. opilio) between January 1, 1996, and December 31, 2000, that
generated any amount of Bering Sea snow crab (C. opilio) fishery QS;
and
* * * * *
(f) Sideboard protections in the State of Alaska parallel
groundfish fisheries. Vessels subject to the sideboard restrictions
under paragraph (a) of this section, with a Federal Fisheries Permit or
LLP license, shall be subject to the regulations of this section while
participating in any groundfish fishery in State waters adjacent to the
GOA opened by the State of Alaska and for which the State of Alaska
adopts a Federal fishing season.
[FR Doc. E6-10554 Filed 7-5-06; 8:45 am]
BILLING CODE 3510-22-S