03-4894. Fisheries of the Exclusive Economic Zone Off Alaska; Western Alaska Community Development Quota Program

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule to amend portions of the regulations governing the halibut fishery under the Western Alaska Community Development Quota (CDQ) Program. These changes will increase the Regulatory Area (Area) 4E trip limit from 6,000 lb (2.72 metric tons (mt)) to 10,000 lb (4.54 mt) and modify the Area 4 Catch Sharing Plan (CSP) to allow CDQ Program participants to harvest allocations of Area 4D halibut CDQ in Area 4E. This action is intended to enhance harvesting opportunities for halibut CDQ fishermen and to further the goals and objectives of the North Pacific Fishery Management Council (Council) with respect to the CDQ program and the Pacific halibut fishery, consistent with the regulations and resource management objectives of the International Pacific Halibut Commission (IPHC).

DATES:

Effective April 2, 2003.

ADDRESSES:

Copies of the Environmental Assessment (EA), Regulatory Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) prepared for this action may be obtained from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall, or by calling 907-586-7228.

FOR FURTHER INFORMATION CONTACT:

Obren Davis, 907-586-7228, e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The Secretary of Commerce (Secretary) is responsible for implementing the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, as provided by the Northern Pacific Halibut Act of 1982 (Halibut Act), at 16 U.S.C. 773. Section 773c(c) of the Halibut Act authorizes the Regional Fishery Management Council having authority for the geographical area concerned to develop regulations governing the allocation and catch of Pacific halibut (Hippoglossus stenolepis) in U.S. Convention waters. Such regulations must be approved by the Secretary before being implemented and may be in addition to, but not in conflict with, regulations developed by the IPHC.

The commercial halibut fishery in and off Alaska is managed under the Individual Fishing Quota (IFQ) program and the CDQ program. Under the regulations established for these programs, the annual halibut catch limits for Areas 4B, 4C, and 4D are divided between the IFQ and CDQ programs. Twenty percent of the Area 4B annual catch limit is allocated to the CDQ program and the rest is allocated to the IFQ program. For Area 4C, the allocation to the CDQ program is 50 percent, and for Area 4D it is 30 percent. One hundred percent of the Area 4E annual catch limit is allocated to the CDQ program. The halibut CDQ catch limits, or reserves, are divided among eligible CDQ communities in accordance with Community Development Plans (CDP) submitted by CDQ managing organizations (CDQ groups) and approved by NMFS. This current action affects only halibut CDQ harvested in Areas 4D and 4E.

Since 1995, four different CDQ groups have received annual allocations of Area 4D halibut and two CDQ groups have received annual allocations of Area 4E halibut. Between 1995 and 2001, the annual halibut CDQ reserve ranged from 231,000 to 609,000 lb (104.78 to 276.24 mt) in Area 4D and from 120,000 to 390,000 lb (54.43 to 176.9 mt) in Area 4E. Amounts specified for halibut catch limits, reserves, and allocations are all in net (headed and gutted) weight. Halibut CDQ in Areas 4D and 4E must be allocated to the CDQ groups that represent eligible communities located in, or proximate to, Areas 4D and 4E, respectively.

Catch Sharing Plan (CSP) for Area 4

The CSP for Area 4 originally was developed by the Council to apportion the IPHC's halibut catch limit for Area 4 among Areas 4A, 4B, 4C, 4D, and 4E as necessary to carry out the socioeconomic objectives of the IFQ and CDQ programs. The Area 4 CSP was published in the Federal Register on March 20, 1996 (61 FR 11337), and implemented that same year.

NMFS subsequently modified the Area 4 CSP to remove Areas 4A and 4B from the CSP in 1998 (63 FR 13000, March 17, 1998). This change was to allow the catch limits for these two areas and a combined Area 4C-4E to be set according to the IPHC's revised biomass-based methodology, under which the IPHC considers that Areas 4A, 4B, and 4C-E each have a separate halibut stock. Beginning in 1998, the IPHC has annually implemented the measures specified in the Area 4 CSP to apportion the combined Area 4C-E catch limit among Areas 4C, 4D, and 4E. The annual management measures for halibut fisheries in 2002 were published on March 20, 2002 (67 FR 12885).

Four out of six CDQ groups have received halibut CDQ allocations in Area 4D since 1995, including Bristol Bay Economic Development Corporation (BBEDC), Coastal Villages Region Fund (CVRF), Norton Sound Economic Development Corporation (NSEDC), and Yukon Delta Fisheries Development Association (YDFDA). Past and current allocations recommended by the State of Alaska and approved by the Secretary have allocated both Area 4D and Area 4E halibut CDQ to just two groups, BBEDC and CVRF, based on their historical participation in the Area 4 halibut fishery and the contents of their CDP applications. NSEDC and YDFDA have received only Area 4D halibut CDQ. Residents of communities represented by these latter two groups (with the exception of two of NSEDC's communities) must travel extended distances offshore to harvest Area 4D halibut CDQ or the quota must be harvested by large, non-local vessels.

In 1999, CDQ groups that received Area 4D quota expressed a desire to increase the amount of halibut CDQ that could be harvested in their locally based inshore halibut fishery by being allowed to harvest Area 4D halibut CDQ in Area 4E. All four of these groups represent communities along the western Alaska coast, ranging from Bristol Bay (south) to the Bering Strait (north). Almost all of the 56 communities represented by these groups are adjacent to Area 4E; only two are in Area 4D. In January 1999, these groups approached the IPHC at its annual meeting and requested a determination as to whether it would be acceptable to harvest halibut CDQ allocated to Area 4D in Area 4E. The IPHC had no objection to the request because it considers the halibut in Areas 4C, 4D,and 4E to be a single stock. This issue was also raised at the February 1999 Council meeting. The Council requested that NMFS prepare an analysis of the proposal to allow Area 4D halibut CDQ to be harvested in Area 4E. The Council also recommended modifying the Area 4E halibut catch limit (see Area 4E Trip Limit, below).

NMFS prepared an EA, RIR, and Initial Regulatory Flexibility Analysis (IRFA) that examined the proposal to allow Area 4D halibut CDQ to be harvested in Area 4E. In December 2001, the Council recommended allowing halibut CDQ that was allocated in Area 4D to be harvested in Area 4E. In January 2002, the IPHC noted that allowing Area 4D halibut CDQ to be harvested in Area 4E would constitute a change to the Area 4 CSP that would need to be addressed by NMFS in rulemaking.

This final rule will modify the Area 4 CSP to incorporate the Council's specific recommendation that Area 4D halibut CDQ may be harvested either in Area 4D or in Area 4E. However, the existing Area 4 CSP framework that apportions the combined Area 4C-E annual catch limit among Areas 4C, 4D, and 4E will remain unchanged. The authority to allocate the annual Area 4 catch limit according to the Area 4 CSP is specified at 50 CFR 300.63(b) and will continue to be implemented by the IPHC in its annual management measures pursuant to 50 CFR 300.62. The following paragraph will be added to the Area 4 CSP:

A CDQ group with an allocation of Area 4D halibut CDQ may harvest all or part of that allocation in Area 4E. This provision is based on the Council's recommendation in December 2001 to allow CDQ fishermen in Area 4E additional halibut CDQ harvesting opportunities. The framework that allocates the IPHC catch limits among Areas 4C, 4D, and 4E remains unchanged.

The Council recommended allowing the harvest of Area 4D halibut in Area 4E and allowing amounts of Area 4D halibut CDQ that had been transferred to Area 4E to be transferred back to Area 4D. NMFS will implement the Council's intent without requiring the CDQ groups to submit documents requesting transfers of halibut CDQ between Areas 4D and 4E. The Council intended that the maximum amount of halibut CDQ that could be caught in Area 4D would be the amount of halibut CDQ allocated to each CDQ group for Area 4D. The Council also intended that the maximum amount of halibut CDQ that could be caught in Area 4E would be the sum of the amount of halibut CDQ allocated for Areas 4D and 4E combined.

NMFS will monitor each CDQ group's halibut CDQ catch in Areas 4D and 4E. If the catch in Area 4E exceeds the group's initial allocation for Area 4E, then NMFS will subtract this additional catch from the group's Area 4D allocation and it will no longer be available for harvest in Area 4D. Halibut CDQ catch from Area 4D also will be subtracted from each group's Area 4D allocation. This procedure will allow each CDQ group to decide where to catch its Area 4D halibut CDQ allocation without requiring burdensome transfers.

Each CDQ group will be required to monitor the harvest of Area 4D and 4E halibut CDQ to ensure that: (1) its total catch in Area 4D does not exceed its Area 4D allocation, minus any portion of its Area 4D quota harvested in Area 4E, and (2) its total catch in Area 4E does not exceed the sum of its Area 4D and Area 4E allocations, minus any portion of its Area 4D allocation harvested in Area 4D.

Area 4E Trip Limit

In 1988, the Council developed, and the Secretary approved, fishing trip limits for Area 4C of 10,000 lb (4.54 mt) and Area 4E of 6,000 lb (2.72 mt) (53 FR 20327, June 3, 1988). In 1994, the Council recommended, and the Secretary approved, a fishing trip limit for Area 4B of 10,000 lb (4.54 mt) (59 FR 22522, May 2, 1994). These provisions were intended to enhance fishing opportunities for operators of vessels that landed their total annual catch within either Areas 4B, 4C, or 4E. Specifically, the Area 4E trip limit was devised to protect fishermen who landed their total annual catch of halibut at ports in Area 4E from competition with fishermen using vessels large enough to land their Area 4E halibut catch at ports in other regulatory areas. The Area 4E trip limit was incorporated into the Pacific halibut fishery regulations in 1988, and into 50 CFR part 676 (now promulgated as 50 CFR part 679) in 1993, as one of the rules implementing the halibut and sablefish IFQ and CDQ programs (58 FR 59375, November 9, 1993).

In December 1994, the Council recommended eliminating the trip limits in Areas 4B, 4C, and 4E, as these limits were deemed unnecessary due to the forthcoming implementation of the IFQ and CDQ programs. Subsequently, these restrictions were removed from the Pacific halibut regulations at 50 CFR part 301 (now 50 CFR part 300) (60 FR 14651, March 20, 1995). The Area 4E trip limit restriction, however, was inadvertently kept in 50 CFR part 679. In October 1998, NMFS informed the Council that this oversight would be corrected by removing the Area 4E trip limit from 50 CFR part 679. The Council declined to approve this correction, and voted instead to retain the 6,000-lb (2.72-mt) trip limit through September 1 of each year. The Council's rationale for retaining an Area 4E trip limit was to prevent consolidation of the halibut fishery in this area, to the possible detriment of local fishermen.

In December 2001, the Council confirmed its intent to retain the trip limit in Area 4E, but recommended that it be increased to 10,000 lb (4.54 mt) and that it be in effect annually only through September 1. The Council reasoned that retention of the trip limit would promote the near-shore small-scale halibut CDQ fishery in western Alaska, which is typically conducted by small vessels under 32 feet (9.73 m) length overall. Moderately increasing the trip limit, however, could allow harvesters greater operational flexibility during the spring and summer months, particularly for local vessels capable of packing more than 6,000 lb (2.72 mt) of halibut during a fishing trip. Eliminating the trip limit during the fall months will offer CDQ groups the ability to harvest halibut CDQ using vessels large enough to safely operate in adverse weather and sea conditions. Typically, the trip limit is an economic constraint to using larger vessels in the Area 4E halibut CDQ fishery.

This final rule revises the Area 4E trip limit to increase it from 6,000 to 10,000 lb (2.72 to 4.54 mt) and specifies that the Area 4E trip limit will be effective only through September 1 of each year.

NMFS published a proposed rule in the Federal Register on October 15, 2002 (67 FR 63600), which described the proposed regulatory amendment and invited comments from the public. No public comments were received on the proposed rule.

Compliance Guide for Small Entities

The Small Business Regulatory Enforcement Fairness Act of 1996 requires that, for each final rule requiring preparation of a FRFA, a plain language explanation of how to comply with the regulation be prepared. NMFS has prepared the following compliance guide that explains how small entities must comply with the regulations implemented in this final rule.

What is the trip limit for vessels fishing for halibut CDQ in Area 4E? A fishing trip limit of 10,000 lb (4.54 mt) applies to halibut CDQ harvesting in Area 4E.

Is the Area 4E trip limit effective for the entire halibut CDQ fishing season? The trip limit is in effect each year from the beginning of the halibut CDQ season through September 1. From September 2 until the end of the halibut CDQ season, vessels fishing for halibut CDQ in Area 4E are not subject to a trip limit.

May halibut CDQ allocated to Area 4D be caught in Area 4E? A CDQ group may choose to harvest all or a portion of its annual Area 4D halibut CDQ allocation in Area 4E.

What are the recordkeeping or reporting requirements associated with the revised trip limit and allowance to harvest Area 4D halibut CDQ in Area 4E? This action does not change the recordkeeping and reporting requirements associated with the halibut CDQ fishery in Area 4. NMFS will modify its halibut CDQ catch accounting software to incorporate the change to the Area 4E trip limit and the option to harvest Area 4D halibut CDQ in Area 4E.

Classification

The Council recommended this action to the Secretary for adoption pursuant to its authority under the Halibut Act. NMFS prepared an EA/RIR/IRFA for the proposed revisions to the Area 4 CSP and the Area 4E trip limit regulatory amendment that describes the management background, the purpose and need for action, the management alternatives, and the socioeconomic impacts of the alternatives.

NMFS also prepared a FRFA describing the impact of this action on small entities. A summary of the FRFA follows.

The objective of this action is to enhance the economic opportunities associated with the Area 4 halibut CDQ fishery by implementing the following regulatory changes: (1) Modifying the Area 4E trip to increase the trip limit to 10,000 lb (4.54 mt) and (2) amending the Area 4 CSP to allow Area 4D halibut CDQ to be harvested in Area 4E. No public comments were received on the IRFA prepared prior to, and summarized within, the proposed rule published for this regulatory amendment. NMFS considers most of the fishing operations affected by this action to be small entities, based on criteria established by the RFA. The universe of small entities is comprised of four CDQ groups, 58 CDQ-eligible communities, 224 catcher vessels, and 31 halibut registered buyers for a total of 317 small entities. There are no recordkeeping or reporting requirements associated with these actions. A range of alternatives was considered for each action. For the action associated with modifying the Area 4 CSP, allowing Area 4D halibut CDQ to be harvested in Area 4E was the preferred alternative selected by the Council. For the Area 4E trip limit action, the preferred alternative was increasing the trip limit to 10,000 lb (4.54 mt) and suspending the trip limit annually after September 1.

The proposed rule, published in the Federal Register on October 15, 2002 (67 FR 63600), contained a more lengthy discussion of the alternatives that were considered for this action and are not repeated here. The preferred alternatives for Actions 1 and 2 constitute the least burdensome alternatives to regulated small entities, among the suite of options available, while simultaneously achieving the objectives of this regulatory amendment. In other words, no other alternatives were identified which would reduce the potential adverse impacts on small entities, while achieving the Council's objectives for the Area 4 Halibut CDQ Program. The Area 4 CSP modification and the revision to 50 CFR part 679 would have no negative impacts in and of themselves, but are intended to increase the harvesting flexibility for participants in the halibut CDQ fishery in Areas 4D and 4E. These changes will allow CDQ groups with halibut CDQ allocations in these areas to tailor their halibut CDQ fishing operations to enhance economic opportunities for the western Alaska communities that they represent.

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. This final rule does not duplicate, overlap, or conflict with other Federal regulations.

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

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: February 25, 2003.

Rebecca Lent,

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

For the 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 is amended to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; Pub. L. 106-31, Sec. 3027; and Pub. L. 106-554, Sec. 209.

2. In § 679.31, paragraph (b)(3)(iv) is revised to read as follows:

§ 679.31

CDQ reserves.

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(b) * * *

(3) * * *

(iv) Area 4E. In IPHC regulatory area 4E, 100 percent of the halibut quota shall be made available to eligible communities located in, or proximate to, IPHC regulatory area 4E. A fishing trip limit of 10,000 lb (4.54 mt) applies to halibut CDQ harvested in IPHC regulatory area 4E through September 1.

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