02-6748. Fisheries of the Exclusive Economic Zone Off Alaska; Western Alaska Community Development Quota Program

AGENCY:

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

ACTION:

Final rule; response to comments.

SUMMARY:

NMFS issues a final rule to change the Community Development Quota (CDQ) regulations for Bering Sea/Aleutian Islands (BSAI) crab to allow the State of Alaska (State) greater flexibility in establishing CDQ fishing seasons. This action is necessary to achieve the conservation and management goals for the BSAI crab CDQ program and is intended to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Fishery Management Plan for Bering Sea and Aleutian Islands King and Tanner Crabs (FMP).

DATES:

Effective on April 22, 2002.

ADDRESSES:

Copies of the Environmental Assessment, Regulatory Impact Review, and Final Regulatory Flexibility Analysis (FRFA) prepared for this action are available from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel.

FOR FURTHER INFORMATION CONTACT:

Gretchen Harrington, 907-586-7228, or [e-mail].

SUPPLEMENTARY INFORMATION:

The Magnuson-Stevens Act, at section 305(i)(1), required the North Pacific Fishery Management Council (Council) and NMFS to establish a CDQ program. See 16 U.S.C. 1855(i). In 1998, NMFS implemented the crab CDQ program with regulations at 50 CFR 679.31 (63 FR 8356, February 19, 1998) and crab CDQ fisheries began that year. Under the Magnuson-Stevens Act, 7.5 percent of the total allowable catch of each BSAI crab fishery for 2000 and beyond is allocated to the crab CDQ program.

Under the FMP, the Council and NMFS defer management of the BSAI king and Tanner crab fisheries, including the CDQ fisheries, to the State, with Federal oversight. The State/Federal cooperative management regime established in the FMP specifies three categories of management measures that provide the framework for the State management of the crab fisheries, including the determination of the guideline harvest levels (GHLs) and fishery seasons. They are (1) Category 1: Federal Management Measures Fixed in the FMP, (2) Category 2: Framework Management Measures, and (3) Category 3: Management Measures Deferred to the State. The FMP also provides for the State management of CDQ crab harvesting activity, including times when CDQ fishermen may harvest the CDQ reserve.

The State establishes crab fishing seasons according to a shellfish management cycle, based on stock assessment surveys conducted in the summer, and the GHLs for the upcoming fall and winter fishing seasons set according to those surveys. The CDQ reserve is a portion of the GHL. Currently, CDQ crab fisheries are conducted after the regular commercial fishery. However, State regulations allow the harvest of a portion of a CDQ crab fishery before the regular commercial crab fishery begins under specific conditions.

Although Federal regulations implementing the crab CDQ reserve, at 50 CFR 679.31(d), specify that the crab CDQ reserves be allocated by calendar year, the Magnuson-Stevens Act does not dictate when the reserve is available for harvest, only that the reserve be a portion of the annual harvest amount. By allocating the crab CDQ reserve on a calendar year basis, the State is prevented from conducting a CDQ crab season before the regular commercial fishery for snow crab (Chionoecetes opilio) because of the timing of the snow crab fishing season. The regular commercial fishery for snow crab starts on January 15 and is open until the GHL is harvested. Additionally, State stand-down provisions prohibit vessels that intend to participate in the snow crab fishery from being on the fishing grounds 14 days prior to the opening of the fishery. Thus, a CDQ season before the regular snow crab fishery could only start in December of the previous calendar year.

Existing Federal regulations do not prevent a CDQ fishery before the regular commercial fishery for the other crab species because these crab fisheries are prosecuted at times that would allow a CDQ fishery to occur before the regular fishery in the same calendar year.

In October 1998, NMFS proposed to the Council, and the Council concurred, that the Federal regulatory language that specified crab CDQ reserves by “calendar year” be changed to allow the State more flexibility in managing the crab CDQ harvests.

This regulatory amendment changes the Federal regulation at 50 CFR 679.31(d) by removing the phrase “calendar year” from the regulatory language. The CDQ reserve will still be apportioned annually based on the GHLs derived from the annual stock assessments. However, the CDQ reserve for snow crab will be available for harvest before January 1 to follow the annual cycle for crab fisheries used by the State rather than the calendar year cycle for groundfish fisheries used by NMFS. This change is consistent with the intent of the FMP by providing the State with greater flexibility to establish CDQ fishing seasons.

This action also removes the expired CDQ reserve phase-in language at 50 CFR 679.31(d).

NMFS published a proposed rule in the Federal Register on July 25, 2001 (66 FR 38626), which described the proposed regulatory amendment and invited comments from the public. Comments were invited until August 24, 2001. NMFS received no public comments on the proposed rule.

Changes From Proposed to Final Rule

NMFS decided to include in this final rule a correction to the regulations at 50 CFR 679.1 concerning the FMP title. In 1998, the Council, when updating the FMP, changed the title of the FMP from the FMP for the Commercial King and Tanner Crab Fisheries in the Bering Sea and Aleutian Islands Area to the FMP for Bering Sea/Aleutian Islands King and Tanner Crabs. NMFS approved the updated FMP in March 1999 (64 FR 11390, March 9, 1999). However, the regulations at 50 CFR 679.1 were not changed to reflect the new FMP title.

Small Entity Compliance Guide

This final rule does not directly effect the management or prosecution of the BSAI crab fisheries. As explained in the FRFA, this final rule adds management flexibility for the State of Alaska to set CDQ fishing seasons according to State regulations.

Classification

The Administrator, Alaska Region, NMFS, determined that this regulatory amendment is necessary for the management of the CDQ crab fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

NMFS prepared an Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Act for this regulatory amendment that describes the management background, the purpose and need for action, the management alternatives, and the socio-economic impacts of the alternatives. NMFS also prepared an FRFA based on the IRFA. The FRFA estimates the total number of small entities that will be affected by this action, and analyzes the economic impact on those small entities as required by the Regulatory Flexibility Act (RFA). A summary of the FRFA follows.

This regulatory change will have no direct effects, in and of itself, although it is intended to provide added management flexibility. With this Federal regulatory change, the State may choose to conduct a CDQ fishing season before a regular commercial fishery for snow crab.

NMFS considers most of the fishing operations affected by this final rule to be small entities. The universe of small entities is composed of the 319 regular commercial fishermen who hold licenses to operate catcher vessels with snow crab endorsements, the 65 villages that participate in the CDQ program, and the six CDQ groups, for a total of 390 small entities. For the purposes of the FRFA, NMFS assumes that all of the catcher vessels belong to small entities, while the 29 operators of licensed catcher processors with snow crab endorsements are not small entities. At present, however, information on ownership, affiliation, and contractual relationships between and among the catcher vessels is insufficient to allow definitive enumerations of which of these operations are, or are not “small entities” for Regulatory Flexibility Act purposes.

NMFS considered two alternatives, status quo and the regulation change. This regulatory change is a measure to reduce the impacts of the existing regulation on small entities, specifically the CDQ groups and communities that belong to the CDQ groups. The FRFA shows that the status quo alternative adversely impacts the 65 villages and 6 CDQ groups by preventing them from realizing the full value of their snow crab CDQ allocation.

On the other hand, the 319 regular commercial fishermen may experience adverse impacts from the proposed alternative due to the potential disadvantage of fishing for snow crab after some of the GHL has been harvested. Measures to reduce the impacts on these small entities will be taken by the State in determining whether to conduct a CDQ fishery before the regular commercial fishery. These measures include limiting the amount of CDQ quota that can be harvested pre-season to 30 percent of the CDQ quota (which equals 2.25 percent of the GHL) and limiting preseason CDQ fisheries for crab stocks with GHLs above 50 million pounds.

This final rule does not contain a collection-of-information requirement subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act (PRA). This rule does not duplicate, overlap, or conflict with other Federal regulations.

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

The Assistant Administrator, NMFS, finds good cause to waive the requirement to provide prior notice and the opportunity for public comment, pursuant to authority set forth at 5 U.S.C. 553 (b)(B), on the portion of the final rule that changes the title of the FMP. NMFS has determined that such procedures would be unnecessary because changing the FMP title has no effect on the public.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Reporting and recordkeeping requirements

Dated: March 15, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For reasons set out in the preamble, 50 CFR part 679 is 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., and 3631 et seq.

§ 679.1

[Amended]

2. In § 679.1(g), remove the words “Fishery Management Plan for the Commercial King and Tanner Crab Fisheries in the Bering Sea and Aleutian Islands Area” and add, in their place, the words “Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs”.

§ 679.2

[Amended]

3. In § 679.2, in the definition for Crab species, remove the words “Fishery Management Plan for the Commercial King and Tanner Crab Fisheries in the Bering Sea/Aleutian Islands” and add, in their place, the words “Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs”.

4. In § 679.31, paragraph (d) is revised to read as follows:

§ 679.31

CDQ reserves.

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(d) Crab CDQ reserves. For those king and Tanner crab species in the Bering Sea and Aleutian Islands Area that have a guideline harvest level specified by the State of Alaska, 7.5 percent of the annual guideline harvest level for each fishery is apportioned to a crab CDQ reserve.

* * * * *