[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Proposed Rules]
[Pages 48087-48095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23029]
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DEPARTMENT OF COMMERCE
50 CFR Parts 672 and 675
[Docket No. 950905226-5226-01; I.D. 083095A]
RIN 0648-AH00
Groundfish of the Gulf of Alaska; Groundfish Fishery of the
Bering Sea and Aleutian Islands Area; Extension of Allocations to
Inshore and Offshore Components
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS publishes a proposed rule that would implement through
December 31, 1998, allocations of Pacific cod and pollock for
processing by the inshore and offshore components in the Gulf of Alaska
(GOA) and pollock for processing by the inshore and offshore components
in the Bering Sea and Aleutian Islands management area (BSAI). It would
also continue the Western Alaska Community Development Quota (CDQ)
Program. These provisions are contained in proposed Amendment 40 to the
Fishery Management Plan (FMP) for Groundfish of the Gulf of Alaska and
proposed Amendment 38 to the FMP for the Groundfish Fishery of the
Bering Sea and Aleutian Islands Area, which the North Pacific Fishery
Management Council (Council) has submitted to NMFS for review and
approval under the Magnuson Fishery Conservation and Management Act
(Magnuson Act). If
[[Page 48088]]
approved, these amendments would continue measures that were contained
in Amendments 18 and 23 to the GOA and BSAI FMPs, respectively. The
proposed rule is intended to promote management and conservation of
groundfish, enhance stability in the fisheries, and further the goals
and objectives contained in the FMPs that govern these fisheries.
DATES: Comments are invited on or before November 2, 1995.
ADDRESSES: Send comments to Ronald J. Berg, Chief, Fisheries Management
Division, Attn: Lori Gravel, Alaska Region, NMFS, P.O. Box 21668,
Juneau, AK 99802-1668 or deliver them to Room 457, Federal Building,
709 W. 9th Street, Juneau, AK. Individual copies of the proposed
amendments and the environmental assessment/regulatory impact review/
initial regulatory flexibility analysis (EA/RIR/IRFA) may be obtained
from the North Pacific Fishery Management Council, P.O. Box 103136,
Anchorage, AK 99510. Send comments and suggestions regarding Paperwork
Reduction Act (PRA) requirements to Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Washington,
DC 20503, Attn: NOAA Desk Officer.
FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The groundfish fisheries in the exclusive economic zone (EEZ) off
Alaska are managed under the BSAI and GOA FMPs. Both FMPs were prepared
by the Council under authority of the Magnuson Act. The GOA FMP is
implemented by regulations appearing at 50 CFR 611.92, 50 CFR part 672,
and 50 CFR part 676; the BSAI FMP, at 50 CFR 611.93, 50 CFR part 675,
and 50 CFR part 676. General regulations that also pertain to U.S.
fisheries appear at 50 CFR part 620. The fisheries for pollock
(Theragra chalcogramma) and Pacific cod (Gadus macrocephalus) and the
affected human environment are described in the FMPs, in the
environmental impact statements prepared by the Council for each FMP,
and in the EA/RIR/IRFA prepared for this action.
Amendments 38 and 40 will extend the provisions of Amendment 18 to
the BSAI FMP and Amendment 23 to the GOA FMP. The only significant
change is moving the western border of the Catcher Vessel Operational
Area (CVOA) 30 minutes to the east, from 168 deg.00' to 167 deg.30' W.
long. Because Amendments 18 and 23 and their implementing regulations
expire on December 31, 1995, and because the Council has yet to
complete development of its comprehensive plan to address problems
caused by the open access nature of the Alaska groundfish fisheries,
the Council voted unanimously at its June 1995 meeting to extend the
provisions of the expiring amendments through December 31, 1998, by
Amendments 38 and 40.
The problems and issues addressed by Amendments 38 and 40 are
discussed in the proposed rule notice for Amendments 18 and 23 (56 FR
66009, December 20, 1991; corrected at 57 FR 2814, January 23, 1992),
the final rule implementing Amendment 23 and the initially approved
portions of Amendment 18 (57 FR 23321, June 3, 1992); a proposed rule
to implement a revision of the parts of Amendment 18 that were
disapproved earlier (57 FR 46133 (October 7, 1992); and a final rule to
implement the revised parts of Amendment 18 (57 FR 61326, December 24,
1992; corrected at 58 FR 14172, March 16, 1993).
The following text covers separately two issues. The first
addresses the allocation of Pacific cod and pollock for processing by
the inshore and offshore components in the GOA and pollock for
processing by the inshore and offshore components in the BSAI. The
second addresses the Western Alaska Community Development Program and
its allocation of pollock.
1. The Inshore-Offshore Issue
A. Summary of the Inshore-Offshore Issue of Amendments 18 and 23
Early in 1989, several catcher-processor vessels (factory trawlers)
harvested substantial amounts of pollock in the BSAI and GOA. This
large, quick harvest forced an early closure of the GOA pollock fishery
and prevented inshore harvesters and processors from realizing their
anticipated economic benefit from pollock later in the fishing year.
Thus, at the April 1989 Council meeting, fishermen and processors from
Kodiak Island requested that the Council consider specific allocations
of fish for processing by the inshore and offshore components of the
fishery to prevent future preemption of resources by one sector of the
industry. The Council considered the request and the impacts on coastal
community development and stability of the fisheries and prepared
Amendments 18 and 23.
NMFS' review of the amendments began on December 1, 1991. On March
4, 1992, the NMFS approved the proposed pollock and Pacific cod
allocations for the GOA and the proposed pollock allocation for the
BSAI for 1992, but disapproved the proposed allocations for the BSAI in
1993 through 1995. The approved allocations were implemented on June 1,
1992 (57 FR 23321, June 3, 1992).
In his March 4, 1992, letter notifying the Council of his approval
of Amendment 23 and partial disapproval of Amendment 18, the Under
Secretary and Administrator of NOAA (Administrator) stated that NOAA is
not opposed to the concept of an allocation between onshore and
offshore interests as an interim measure pending development of a
solution to overcapitalization--ideally, a market-based solution. NMFS'
disapproval of the BSAI pollock allocations for 1994 and 1995 was based
in part on a cost-benefit analysis prepared by NMFS that indicated a
significant net economic loss to the Nation under the proposed
allocations for years 1993 through 1995. The Administrator urged the
Council to work as expeditiously as possible toward some other method
of allocating fish than either the olympic system or direct government
intervention. Meanwhile, he noted, preventing preemption by one fleet
of another, safeguarding capital investments, protecting coastal
communities that are dependent on a local fleet, and encouraging fuller
utilization of harvested fish are desirable objectives that are
provided for under the Magnuson Act.
At its April 21-26, 1992, meeting, the Council considered the NMFS'
actions and recommendations and decided to revise Amendment 18. The
Council supplemented its previous analysis of allocation alternatives
for the original Amendments 18 and 23.
At a special meeting to consider this issue on August 4-5, 1992,
the Council again considered the comments of its advisory bodies and
the public, adopted its preferred alternative, and submitted it to NMFS
as revised Amendment 18. This action would have allocated pollock in
the BSAI for processing by the inshore and offshore components,
respectively, of 35 percent and 65 percent in 1993, and of 37.5 percent
and 62.5 percent in 1994 and 1995. In addition, it would have created a
catcher vessel operational area for the second season pollock fishery
in the years 1993 through 1995, and it would have allowed vessels in
the offshore component that process only (i.e., motherships) to operate
in the CVOA so that the catcher vessels that deliver to these vessels
also could operate in the CVOA.
[[Page 48089]]
In September 1992, the Council submitted revised Amendment 18 to
NMFS for review, approval, and implementation under section 304(a) of
the Magnuson Act.
On November 23, 1992, after careful consideration of the revised
amendment, public comments, the record developed by the Council, and
the analyses of the potential effects of the proposed amendment, NMFS
approved pollock allocations of 35 percent for processing by the
inshore component and 65 percent for processing by the offshore
component for the years 1993 through 1995. NMFS also approved the CVOA,
including the provision that motherships could operate within that
area, and certain other changes of the regulations proposed by NMFS to
clarify the regulations implementing Amendments 18 and 23. The final
rule implementing these decisions became effective January 19, 1993 (57
FR 61326, December 24, 1992).
B. The Need for and Development of Amendments 38 and 40
The Council stipulated (e.g., sections 14.4.11.7, BSAI FMP) that
Amendments 18 and 23 would expire on December 31, 1995, or earlier if
replaced with another management regime approved by NMFS. It did so
with the understanding that by December 31, 1995, it would have adopted
and NMFS would have approved a more comprehensive long-term management
program to address the overcapitalization and allocation problems
facing the industry, not only for pollock and Pacific cod, but for all
groundfish and crab under the Council's authority.
The Council has made some progress on its long-term plan. For
example, in June 1995 it adopted a license-limitation programs for the
groundfish and crab fisheries. However, the Council estimates that it
will take 2 or 3 more years to develop and implement a comprehensive
management regime. Consequently, the Council decided it would be
necessary to extend the provisions of Amendments 18 and 23 for an
additional 3 years to maintain stability in the industry, facilitate
further development of the comprehensive management regime, and allow
for realization of the goals and objectives of the pollock CDQ program.
In making this decision, the Council continued the mandate it
established for itself in 1992 when it recognized that a more permanent
solution to overcapacity and preemption was needed.
The Council decided that if the provisions of Amendments 18 and 23
expired, then the fishery would return to the ``free-for-all'' state it
was in before Amendments 18 and 23, and the inshore sector again would
be faced with the threat of preemption by the large and efficient
offshore sector. Thus, the Council began the process to extend the
provisions of Amendments 18 and 23.
In June 1994, the Council reaffirmed that its staff should begin
analyzing the impacts of the potential extension of Amendments 18 and
23, including the CDQ program in the BSAI. At its October 1994 meeting,
the Council identified this issue as highest priority for analysis. In
December 1994, the Council presented a draft statement of the problem
and reviewed a plan for analyzing the merits and impacts of continuing
Amendments 18 and 23. It also requested a detailed reexamination of the
CVOA. Further, it identified the treatment of vessels that fish with
longline gear and freeze their catch for possible reevaluation under
the definitions of inshore and offshore components. At its January 1995
meeting, the Council reviewed a detailed outline for the analyses and
noted that the formal analyses would be presented at its April 1995
meeting, the analyses would undergo public review and comment, and the
Council would make its final decision in June 1995. At its April 1995
meeting, the Council released a draft EA and RIR of the proposed
reauthorization of Amendments 18 and 23 for public review.
Finally, at its meeting in June 1995, the Council reviewed written
comments and considered testimony presented at the meeting by the
public and its advisory bodies. It voted unanimously to reauthorize the
provisions of Amendments 18 and 23 through December 31, 1998, with two
changes. First, it moved the western boundary of the CVOA 30 minutes to
the east. Second, it allowed catcher-processor vessels to use the CVOA
if the pollock quota for processing by the inshore sector had been
harvested for the year.
The Council decided to move the western boundary of the CVOA 30
minutes to the east because (a) that part of the CVOA between
168 deg.00' W. long. and 167 deg.30' W. long. was not being used by
catcher vessels delivering to inshore processors, (b) some operators of
catcher-processor vessels of the offshore component requested that they
be allowed to operate there, and (c) the area was not critical for
protected species.
In deciding to move the western boundary, the Council considered
the impact of this move on the accounting of chum salmon caught as
bycatch and the chum salmon savings area (Sec. 675.22(h)). An analysis
of chum salmon bycatch data led the Council to conclude that moving the
western boundary would have no significant impact on the controls
governing chum salmon bycatch.
Furthermore, because the CVOA and statistical area 518 (the
Bogoslof District) overlapped, probably only the northern half of the
area removed from the CVOA would be open to the offshore component.
Roughly the southern half of the area is in statistical area 518 and is
closed to directed fishing for pollock under 1995 regulations (60 FR
8479, February 14, 1995), and likely will be closed to directed fishing
for pollock in 1996, 1997, and 1998.
C. Summary of Amendments 38 and 40
Because Amendments 18 and 23 were due to expire on December 31,
1995, the June 1995 Council action led to new amendments. The
provisions of Amendment 18 became the basis of Amendment 38, and those
of 23 became the basis of Amendment 40. The only significant difference
between Amendments 18 and 23 and Amendments 38 and 40 is that Amendment
38 moves the western boundary of the CVOA.
Thus, in the BSAI, the apportionments of pollock for domestic
processing in each subarea or district and each season would be
allocated 35 percent for processing by the inshore component and 65
percent for processing by the offshore component. The western border of
the CVOA is moved 30 minutes to the east, from 168 deg.00' to
167 deg.30' W. long., thereby reducing its area by about 15 percent.
The CVOA will exist from the start of the second season for directed
pollock fishing (Sec. 675.23(e)) until the quota of pollock for
processing by the inshore component has been harvested for the year or
until December 31. Processor vessels of the offshore component would be
allowed to conduct directed fishing operations for pollock in the CVOA
only when they were operating under a valid Community Development Plan.
Processor vessels in the offshore component that do not catch
groundfish would be allowed to process pollock in the CVOA.
In the GOA, the apportionment of pollock for domestic processing in
all regulatory areas will be allocated entirely for processing by the
inshore component after subtraction of an amount that is projected by
the Director, Alaska Region, NMFS (Regional Director) to be caught by
or delivered to
[[Page 48090]]
the offshore component incidental to directed fishing for other
groundfish species. The apportionment of Pacific cod for domestic
processing in all regulatory areas will be allocated 90 percent for
processing by the inshore component and 10 percent for processing by
the offshore component.
In both amendments the definitions of the terms ``inshore
component'' and ``offshore component'' are clarified. Also, both
amendments continue the requirement that processor vessels will be
included with the inshore component or the offshore component based
upon a declaration by the owner of that vessel on the annual
application for a Federal permit (Secs. 672.4 and 675.4).
Separately, Amendment 40 changes two sections of the GOA FMP.
First, section 4.3.1.1, Permit Requirements, is revised to emphasize
that certain permits are required of participants in the GOA groundfish
fisheries. These requirements are found in regulations implementing the
GOA FMP. Second, section 4.3.1.6, Inshore/offshore allocations of
pollock, is amended by revising the heading to include Pacific cod, by
rewriting the text for clarity, and by noting that the provisions of
the section will end on December 31, 1998, or earlier if replaced with
another management regime approved by NMFS.
Along the same lines, Amendment 38 changes two sections of the BSAI
FMP. First, section 14.4.1, Permit requirements, is also revised to
emphasize that certain permits are required of participants in the BSAI
groundfish fisheries, and that these requirements are found in
regulations implementing the BSAI FMP. Second, section 14.4.11,
Inshore/offshore allocations of pollock, is rewritten for clarity and
to note that the provisions of the section will end on December 31,
1998, or earlier if replaced with another management regime approved by
NMFS. Further, Amendment 38 revises Sec. 14.4.11.6, Bering Sea Catcher
Vessel Operational Area, moving the western boundary of the CVOA 30
minutes longitude to the east.
Regulations are also proposed to continue the delay in the opening
of the first directed fishery for pollock until February 5 for vessels
used before January 26 to fish for BSAI or GOA groundfish or BSAI king
or Tanner crab. The Council voted at its June 1994 meeting to change
the start of the first directed fishery for pollock (the ``A-Season''
or ``roe season'') for processing by the offshore component to January
26. It did so to ensure optimum roe quality and increase the associated
revenues. It included the delay to February 5 to discourage pollock
vessels from shifting into other fisheries before January 26. NMFS
published a final rule to implement these measures on December 16, 1994
(59 FR 64867). They expire December 31, 1995.
D. Summary of the Proposed Inshore-Offshore Regulations
The definitions of the terms (Secs. 672.2 and 675.2) ``inshore
component'' and ``offshore component'' would be clarified and extended
through December 31, 1998 and the term ``catcher vessel operational
area'' (CVOA) would be added for clarity.
The general prohibitions against vessels operating during any year
in more than one category of the inshore component (Secs. 672.7(h)(1)
and 675.7(i)(1)) or vessels operating in both the inshore and offshore
components (Secs. 672.7(h)(2) and 675.7(i)(2)) would be extended
through December 31, 1998.
The allocations of Pacific cod and pollock for processing by the
inshore and offshore components (Secs. 672.20(a)(2)(v) and
675.20(a)(2)(iii)) and specifications of annual allocations
(Secs. 672.20(c)(1)(ii) and 675.20(a)(3)(i)) would be extended through
December 31, 1998.
In the regulations governing the CVOA (Sec. 675.22(g)), the western
boundary would be moved 30 minutes to the east to 167 deg.30' W. long.
The regulations would clarify that the CVOA will exist from the start
of the second season for directed fishing for pollock (Sec. 675.23(e))
until the quota of pollock for processing by the inshore component has
been harvested for the year or until December 31. These regulations
would be extended through December 31, 1998.
Regulations concerning the bycatch of chum salmon (Sec. 675.22(h))
refer to the definition of the CVOA as found at Sec. 675.22(g). Under
these regulations chum salmon caught in the CVOA as bycatch in the
nonroe pollock fishery are attributed towards a 42,000 fish bycatch
limit. The Council's decision to move the western boundary of the CVOA
and, thereby, reduce its size would affect the area of chum salmon
accounting. The Council recognized this effect on its program for
reducing chum salmon bycatch and expressed its intent to have the chum
salmon accounting take place within the revised boundaries of the CVOA.
Because, under this proposed rule, the definition of the CVOA would be
moved to Sec. 675.2, NMFS now proposes to amend Sec. 675.22(h)) so it
will be consistent with this change.
Also, in accordance with Council intent, NMFS proposes to
reimplement until December 31, 1998, regulations governing delays in
the start of the first directed fishing seasons for pollock for
processing by the offshore component (Sec. 675.23(e)(2)(ii)).
2. Western Alaska Community Development Quota (CDQ) Program
A. Summary of the History and Provisions of the CDQ Program
The approved portion of Amendment 18 and the final rule
implementing Amendment 18 (57 FR 23321, June 3, 1992) allocated pollock
for the CDQ program only for a temporary period from 1992 through 1995.
The amendment allocated 7.5 percent of the pollock total allowable
catch for each BSAI subarea or district to be set aside for the CDQ
program. A regulatory amendment (57 FR 54936, November 23, 1992)
implemented the CDQ program for 1992 and 1993 by specifying the process
for applying for CDQ and the required contents of the Community
Development Plan applications. A subsequent regulatory amendment (58 FR
32874, June 14, 1993) implemented the CDQ program for 1994 and 1995.
At its June 1995 meeting, the Council reauthorized the provisions
of Amendment 18 through December 31, 1998, including the CDQ program.
Much has been learned about the CDQ program since 1992. NMFS has worked
closely with the State of Alaska's Departments of Community and
Regional Affairs, Fish and Game, and Commerce and Economic Development,
as well as the CDQ industry, to develop proposed changes to the pollock
CDQ regulations.
B. Proposed Changes to the CDQ Implementing Regulations
This proposed rule extends the definitions of ``community
development plan (CDP),'' ``community development quota,'' ``community
development quota program,'' and ``community development quota
reserve'' until December 31, 1998; and makes the following nine changes
to the CDQ implementing regulations that have been in effect, but which
expire on December 31, 1995.
1. The phrase ``applicable through December 31, 1995'' at the
beginning of the CDQ regulations at part 675.27 is proposed to be
replaced by the phrase ``applicable through December 31, 1998''. This
would implement the Council's recommendation to reauthorize the CDQ
program for 3 additional years. In addition, the phrase
[[Page 48091]]
``applicable through December 31, 1995'' is deleted from the beginning
of paragraphs (e) and (f) because it is unnecessary.
2. Introductory text is added in Sec. 675.27 to describe the goals
and purpose of the CDQ program as follows: to allocate CDQ pollock to
eligible Western Alaska communities to provide the means for starting
or supporting commercial seafood activities that will result in ongoing
regionally based commercial seafood or related businesses. This
statement is a distillation of previous CDQ proposed and final rules
that describe the goals and purpose of the CDQ program and is proposed
to be added to these regulations to state precisely the purpose and
goals of this program.
3. Under current regulations, paragraph (b)(1)(i) states that the
CDP must include the goals and objectives of the CDP. However, a CDP
does not have goals and objectives that are separate from those of the
CDQ program. Therefore, (b)(1)(i) is replaced with a more correct
statement. Specifically, CDPs are project-based documents, and should
include a description of the CDP projects that are proposed to be
funded by the pollock allocation and how the CDP projects satisfy the
goals and purpose of the CDQ program.
4. Paragraph (b)(1)(vii) states that a CDP must include a
description of how the CDP would generate new capital or equity for the
applicant's fishing or processing operations. However, an applicant may
have both fishing and processing operations, so it would be more
accurate to state that a CDP must include a description of how the CDP
would generate new capital or equity for the applicant's fishing and/or
processing operations.
5. Paragraph (b)(2)(vii), states that a CDP should include a budget
for implementing a CDP. This level of budget oversight has proven to be
inadequate for managing the CDQ program. This paragraph is proposed to
be expanded, requiring a general budget to be included in the CDP that
would be a general account of estimated income and expenditures for
each CDP project for each year of the life of the project.
An annual budget would be required at (e)(1)(ii), and it would be a
detailed account of the estimated income and expenditures for each CDP
project prior to the beginning of a calendar year. An initial annual
budget would be required as part of a CDP application. For each
subsequent year, the annual budget would be required to be submitted to
NMFS in a report by December 15 of the year preceding the year for
which the annual budget applies. Annual budgets would be approved upon
receipt by NMFS unless subsequently disapproved by NMFS in writing. The
annual budget would be reconciled in a report to NMFS by May 15 after
the year for which the annual budget applies. The annual budget
reconciliation report would list the actual income and expenditures and
highlight the variance between the estimated and actual income/
expenditures for each CDP project. If the general budget included in
the CDP is no longer valid due to the reconciliation of the annual
budget, then the general budget would also be required to be revised
and submitted to NMFS with the annual budget reconciliation report.
6. Paragraph (b)(3)(ii)(B) states that the CDP must document the
legal relationship between the CDP applicant and the managing
organization. This implies that the CDP applicant and the managing
organization are different entities. However, in some cases, the CDP
applicant is the same as the managing organization. Therefore, this
paragraph would be changed to state that the CDP must document the
legal relationship between the CDP applicant and the managing
organization only if the managing organization is different from the
CDP applicant.
7. The definition of a CDP amendment under paragraph (e)(3)(i)(A)-
(C) has required unnecessary amendments to be submitted to NMFS. Under
the current regulations, paragraph (e)(3)(i)(B) states that any change
to the budget of a CDP is a CDP amendment. Minor changes (for example,
revisions of a CDP's budget for office supplies) were not meant to be
amendments. Therefore, the existing paragraphs at (e)(3)(i)(A)-(C)
would be deleted and paragraphs (e)(3)(i)(A)-(F) would be added,
specifying in more detail what would constitute a CDP amendment.
8. In 1993, when the first CDP amendments were received by NMFS,
guidance at paragraph (e)(3)(ii) regarding the contents of a CDP
amendment was not sufficient, and more specific guidance was needed.
The existing requirements for the contents of CDP amendments resulted
in the submission of CDP amendments in different formats and lacking
critical information, making them difficult to evaluate and process.
Therefore, the Regional Director provided guidance to the Governor in a
letter dated November 3, 1993. Since that date, all CDP amendments have
followed the suggested format that was provided in that letter. This
guidance is proposed to be added at paragraph (e)(3)(ii)(A)-(F).
9. Currently, a CDQ management organization is not required to
notify NMFS of any change to a CDP that does not meet the criteria for
a CDP amendment at (e)(3)(i)(A)-(C). Such minor changes are technical
amendments. However, a CDP is a working business plan and must be kept
up-to-date. NMFS proposes to require that CDQ groups notify the
Governor and NMFS in writing of any technical amendments to a CDP
before any change occurs. Technical amendments would be approved when
the CDQ group receives a written notice from NMFS of the receipt of a
technical amendment. The notification should include the pages of the
CDP with the text highlighted to show additions and deletions, and the
amended pages of the CDP would be included for replacement in the CDP.
Environmental and Regulatory Analyses
The Council prepared an EA/RIR/IRFA for Amendments 38 and 40 in
accordance with the National Environmental Policy Act, Executive Order
12866, Regulatory Planning and Review, and the Regulatory Flexibility
Act. A copy of the EA/RIR/IRFA may be obtained from the Council (see
ADDRESSES).
The EA/RIR/IRFA reviews events leading up to Amendments 18 and 23,
examines the fisheries since Amendments 18 and 23 went into effect, and
examines the alternatives of (a) letting the provisions of Amendments
18 and 23 expire and (b) continuing those provisions as Amendments 38
and 40.
The EA/RIR/IRFA concludes that the potential environmental impacts
of Amendments 38 and 40 are expected to be consistent with those
previously predicted for Amendments 18 and 23 in the 1992 final
supplemental environmental impact statement. They are also consistent
with the findings in the supplemental analysis of September 1992
regarding the probable impacts of the CVOA on marine mammals, seabirds,
and prohibited species. Total removals of pollock and Pacific cod are
controlled by the total allowable catches, and their monitoring has
been enhanced recently to guard against overruns. Catches of prohibited
species and impacts on marine mammals are expected to be unchanged.
Section 7 consultations by NMFS during consideration of Amendments 18
and 23 and again for Amendments 38 and 40 concluded that the groundfish
fisheries are unlikely to jeopardize the continued existence or
recovery of any endangered or threatened species.
For the analysis of economic and social impacts of Amendments 38
and
[[Page 48092]]
40 and the proposed regulations, the Council did not attempt to redo
the previous cost-benefit or distributional analyses; rather, the EA/
RIR/IRFA provides a review of the current state of the fisheries and
identified significant changes that would affect the overall findings
of the previous analyses. It also examined stability within the
industry, future tradeoffs for affected industry sectors, and potential
impacts on the Council's attempts to develop a more comprehensive plan
for managing the groundfish, crab, and halibut fisheries.
The EA/RIR/IRFA concluded that reauthorizing the provisions of
Amendments 18 and 23 would result in the same general cost-benefit
impacts as projected in the 1992 analyses, although the expected net
losses to the Nation's economy were probably overstated in the original
analyses, and with changes in product recovery rates and prices since
1992, they were expected to move more towards neutral.
The EA/RIR/IRFA found that continuation of the inshore-offshore
program would maintain stability and that disruption of this stability
could have serious and adverse implications for successful development
of a comprehensive management regime for the fisheries (EA/RIR/IRFA, p.
E-9). Continuation of the inshore-offshore program would negatively
affect Ballard-Seattle, WA; however, the absence of the program would
result in negative social and economic impacts on many coastal Alaskan
communities, particularly in those participating in the CDP that have
developed additional infrastructure since 1992.
In examining the community development program, the EA/RIR/IRFA
asked two questions: (a) Can the development projects and initiative
underway now be brought to fruition without a continuation of the
allocation? and (b) Once the development projects are complete, can
they be sustained in the absence of a direct allocation of pollock? For
the first question, the EA/RIR/IRFA concluded that the individual
projects as well as the overall development objectives of the program
would not be realized if the program ends in 1995. For the second
question, the EA/RIR/IRFA stated that this was a difficult question to
answer at this time and it remained a critical question, likely to be
answered within the context of the comprehensive rationalization
process.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of an FMP
or an amendment of an FMP and regulations. At this time, NMFS has not
determined that either Amendment 38 of the BSAI FMP or Amendment 40 of
the GOA FMP (which these rules would implement) is consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable laws. NMFS, in making that determination, will take into
account the data, views, and comments received during the comment
period.
This proposed rule has been determined to be not significant for
the purposes of E.O. 12866.
The Council prepared an IRFA as part of the regulatory impact
review, which describes the impact this proposed rule would have on
small entities, if adopted. The IRFA analysis indicates that specific
allocations to the inshore and offshore components could benefit small
harvesting and processing operations associated with one component and,
conversely, negatively impact small operations associated with the
other. The magnitudes of the impacts are related to the sizes of the
allocations. The continuation of specific allocations to the inshore
component as well as the specific allocations of pollock to the CDQ
program will continue direct benefits to many small jurisdictions of
Southwest and Western Alaska. The support industry benefits directly
from the economic activity in both the inshore and offshore sector.
Probably, the loss in revenue associated with one component will be
offset by gains obtained from the other. Overall, this proposal will
impact more than 20 percent of those small entities, and NMFS considers
that amount to be a ``substantial number.'' A copy of the EA/RIR/IRFA
is available from the Council (see ADDRESSES).
This proposed rule contains collection-of-information requirements
related to the Community Development Quota Program that are subject to
the PRA. These requests for collection of information have been
submitted to the Office of Management and Budget for approval. The
public reporting burden for each year of this collection is estimated
to average 40 hours per response for completing annual reports, 40
hours per response for completing annual budget reconciliation reports,
30 hours per response for completing substantial amendments, and 4
hours per response for completing technical amendments. For the first
year of the CDQ program, completion of CDP applications is estimated to
average 160 hours per response. For each of the last 2 years of the
program, completion of annual budget reports is expected to average 40
hours per response. OMB approval has been obtained under OMB control
number 0648-0269 for the CDQ-managing organization representative
requirement to inform NMFS within 24 hours after the CDQ has been
reached and fishing ceased. This requirement has an estimated response
time of 2 minutes per response.
All reporting burden estimates include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates, or any other aspect of the data requirements, including
suggestions for reducing the burden, to NMFS and to the OMB (see
ADDRESSES).
List of Subjects in 50 CFR Parts 672 and 675
Fisheries, Reporting and recordkeeping requirements.
Dated: September 11, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 672 and 675
are proposed to be amended as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for 50 CFR part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 672.2, the definitions of ``Inshore component'' and
``Offshore component'' are revised to read as follows:
Sec. 672.2 Definitions.
* * * * *
Inshore component (applicable through December 31, 1998) means the
following three categories of the U.S. groundfish fishery that process
pollock harvested in a directed fishery for pollock, or Pacific cod
harvested in a directed fishery for Pacific cod in the Gulf of Alaska,
or both:
(1) All shoreside processing operations;
(2) Any processor vessel less than 125 ft (38.1 m) in length
overall that processes no more than 126 mt per week in round-weight
equivalents of an aggregate of those fish and that is declared to be
part of the inshore component by its owner in the annual application
for a Federal Permit (NOAA Form 88-155) under Sec. 672.4; and
(3) Any processor vessel that processes those fish at a single
geographic location in Alaska State waters (waters adjacent to the
State of
[[Page 48093]]
Alaska and shoreward of the EEZ) during a fishing year and that is
declared to be part of the inshore component by its owner in the annual
application for a Federal Permit (NOAA Form 88-155) under Sec. 672.4.
For the purposes of this definition, NMFS will determine the single
geographic location in a fishing year for an individual processor from
the geographic coordinates the vessel operator reports on the check-in
notice (Sec. 672.5(c)(1) and Sec. 675.5(c)(1) of this chapter) when
that vessel first engages in processing those fish.
* * * * *
Offshore component (applicable through December 31, 1998) means all
processor vessels in the U.S. groundfish fisheries not included in the
definition of ``inshore component'' that process pollock caught in
directed fisheries for pollock, or Pacific cod caught in directed
fisheries for Pacific cod in the Gulf of Alaska, or both.
* * * * *
3. In Sec. 672.7, paragraph (h) heading, and paragraph (h)(2) are
revised to read as follows:
Sec. 672.7 Prohibitions.
* * * * *
(h) Applicable through December 31, 1998. * * *
(2) Operate any vessel under both the ``inshore component'' and
``offshore component'' definitions at Secs. 672.2 and 675.2 of this
chapter during the same fishing year.
* * * * *
Sec. 672.20 [Amended]
4. In Sec. 672.20, the headings of paragraphs (a)(2)(v), (c)(1)(i),
(c)(1)(ii), (c)(2)(i) and (c)(2)(ii) are revised to read: ``Applicable
through December 31, 1998.''.
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA
5. The authority citation for 50 CFR part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
6. In Sec. 675.2, a definition for ``Catcher vessel operational
area'' is added, and the definitions for ``Community Development
Plan,'' ``Community Development Quota,'' Community Development Quota
Program,'' Community Development Quota Reserve,'' ``Inshore
component,'' and ``Offshore component'' are revised to read as follows:
Sec. 675.2 Definitions.
* * * * *
Catcher vessel operational area (CVOA) (applicable through December
31, 1998) means that part of the Bering Sea subarea south of 56 deg.00'
N. lat. and between 163 deg.00' and 167 deg.30' W. long.
Community Development Plan (CDP) (applicable through December 31,
1998) means a plan for a specific Western Alaska community or group of
communities approved by the Governor of the State of Alaska and
recommended to NMFS under Sec. 675.27.
Community Development Quota (CDQ) (applicable through December 31,
1998) means a Western Alaska community development quota for pollock
assigned to an approved CDP. All CDQs, in the aggregate, equal 7.5
percent of the total allowable catch specified for pollock that is
placed in reserve under Sec. 675.20(a)(3).
Community Development Quota Program (CDQ program) (applicable
through December 31, 1998) means the Western Alaska Community
Development Program implemented under Sec. 675.27.
Community Development Quota Reserve (CDQ reserve) (applicable
through December 31, 1998) means 7.5 percent of the total allowable
catch specified for pollock in each subarea or district that is placed
in reserve under Sec. 675.20(a)(3).
* * * * *
Inshore component (applicable through December 31, 1998) means the
following three categories of the U.S. groundfish fishery that process
pollock harvested in a directed fishery for pollock, or Pacific cod
harvested in a directed fishery for Pacific cod in the Gulf of Alaska,
or both:
(1) All shoreside processing operations;
(2) Any processor vessel less than 125 ft (38.1 m) in length
overall that processes no more than 126 mt per week in round-weight
equivalents of an aggregate of those fish and that is declared to be
part of the inshore component by its owner in the annual application
for a Federal Permit (NOAA Form 88-155) under Sec. 675.4; and
(3) Any processor vessel that processes those fish at a single
geographic location in Alaska State waters (waters adjacent to the
State of Alaska and shoreward of the EEZ) during a fishing year and
that is declared to be part of the inshore component by its owner in
the annual application for a Federal Permit (NOAA Form 88-155) under
Sec. 675.4. For the purposes of this definition, NMFS will determine
the single geographic location in a fishing year for an individual
processor from the geographic coordinates the vessel operator reports
on the check-in notice (Sec. 672.5(c)(1) of this chapter and
Sec. 675.5(c)(1)) when that vessel first engages in processing those
fish.
* * * * *
Offshore component (applicable through December 31, 1998) means all
processor vessels in the U.S. groundfish fisheries not included in the
definition of ``inshore component'' that process pollock caught in
directed fisheries for pollock, or Pacific cod caught in directed
fisheries for Pacific cod in the Gulf of Alaska, or both.
* * * * *
7. In Sec. 675.7, paragraph (i) heading, paragraph (i)(2), and
paragraph (j) heading are revised to read as follows:
Sec. 675.7 Prohibitions.
* * * * *
(i) Applicable through December 31, 1998. * * *
(2) Operate any vessel under both the ``inshore component'' and
``offshore component'' definitions at Secs. 672.2 of this chapter and
675.2 during the same fishing year.
(j) Applicable through December 31, 1998.
* * * * *
8. In Sec. 675.20, the headings of paragraphs (a)(2)(iii),
(a)(3)(i), (a)(3)(ii), and (a)(3)(iii) are revised to read as follows:
Sec. 675.20 General limitations.
(a) * * *
(2) * * *
(iii) Applicable through December 31, 1998.
* * * * *
(3) * * *
(i) Applicable through December 31, 1998. * * *
(ii) Applicable through December 31, 1998. * * *
(iii) Applicable through December 31, 1998; application for
approval of a CDP and CDQ allocation. * * *
* * * * *
9. In Sec. 675.22, paragraphs (g) and (h)(2) are revised to read as
follows:
Sec. 675.22 Time and area closures.
* * * * *
(g) Catcher vessel operational area (applicable through December
31, 1998). (1) This area is established annually for directed fishing
for pollock from the beginning of the second season of directed fishing
for pollock (defined at Sec. 675.23(e)) until either the date that NMFS
determines that the pollock quota for processing by the inshore
component has been harvested or December 31.
[[Page 48094]]
(2) Catcher vessels may conduct directed fishing in this area.
(3) Processor vessels in the offshore component are prohibited from
conducting directed fishing for pollock in this area unless they are
operating under a CDP approved by NMFS.
(4) Processor vessels in the offshore component that do not catch
groundfish but do process pollock caught in a directed fishery for
pollock may operate within this area to process pollock.
(5) Processor vessels that catch or process groundfish in directed
fisheries for species other than pollock may operate within this area.
(h) * * *
(2) When the Regional Director determines that 42,000 nonchinook
salmon have been caught by vessels using trawl gear during August 15
through October 14 in the CVOA (defined in Sec. 675.2), NMFS will
prohibit fishing with trawl gear for the remainder of the period
September 1 through October 14 in the Chum Salmon Savings Area defined
under paragraph (h)(1) of this section.
10. In Sec. 675.23, paragraph (e)(2) heading is revised to read as
follows:
Sec. 675.23 Seasons.
* * * * *
(e) * * *
(2) Applicable through December 31, 1998. * * *
* * * * *
11. In Sec. 675.27, the section heading is revised, introductory
text is added, and paragraphs (b)(1)(i), (b)(1)(vii), (b)(2)(vii),
(b)(3)(ii)(B), (e), and the heading of paragraph (f) are revised to
read as follows:
Sec. 675.27 Western Alaska Community Development Quota Program
(applicable through December 31, 1998).
The goals and purpose of the CDQ program are to allocate CDQ
pollock to eligible Western Alaska communities to provide the means for
starting or supporting commercial seafood activities that will result
in ongoing regionally based commercial seafood or related businesses.
* * * * *
(b) * * *
(1) * * *
(i) A description of the CDP projects that are proposed to be
funded by the pollock allocation and how the CDP projects satisfy the
goals and purpose of the CDQ program;
* * * * *
(vii) Description of how the CDP would generate new capital or
equity for the applicant's fishing and/or processing operations;
* * * * *
(2) * * *
(vii) A general budget for implementing the CDP. A general budget
is a general account of estimated income and expenditures for each CDP
project that is described at paragraph (b)(1)(i) of this section for
the total number of calendar years that the CDP is in effect. An annual
budget is required to be submitted with a CDP as described at paragraph
(e)(1)(ii) of this section;
* * * * *
(3) * * *
(ii) * * *
(B) Documentation of a legal relationship between the CDP applicant
and the managing organization (if the managing organization is
different from the CDP applicant), which clearly describes the
responsibilities and obligations of each party as demonstrated through
a contract or other legally binding agreement; and
* * * * *
(e) Monitoring of CDPs--(1) CDP reports. The following reports must
be submitted to NMFS.
(i) Annual progress reports. CDP applicants are required to submit
annual progress reports to the Governor by June 30 of the year
following a CDQ allocation. Annual progress reports will include
information describing how the CDP has met its milestones, goals, and
objectives. On the basis of those reports, the Governor will submit an
annual progress report to NMFS and recommend whether CDPs should be
continued. NMFS must notify the Governor in writing within 45 days of
receipt of the Governor's annual progress report, accepting or
rejecting the annual progress report and the Governor's recommendations
on multiyear CDQ projects. If NMFS rejects the Governor's annual
progress report, NMFS will return it for revision and resubmission. The
report will be deemed approved if NMFS does not notify the Governor in
writing within 45 days of the report's receipt.
(ii) Annual budget report. An annual budget report is a detailed
estimation of income and expenditures for each CDP project as described
in paragraph (b)(1)(i) of this section for a calendar year. The first
annual budget report shall be included in the CDP. Each additional
annual budget report must be submitted to NMFS by December 15 preceding
the year for which the annual budget applies. Annual budget reports are
approved upon receipt by NMFS unless disapproved in writing by December
31. If disapproved, the annual budget report may be revised and
resubmitted to NMFS. NMFS will approve or disapprove a resubmitted
annual budget report in writing.
(iii) Annual budget reconciliation report. A CDQ group must
reconcile each annual budget by May 15 of the year following the year
for which the annual budget applied. Reconciliation is an accounting of
the annual budget's estimated income and expenditures with the actual
income and expenditures, including the variance in dollars and variance
in percentage for each CDP project that is described in paragraph
(b)(1)(i) of this section. If a general budget as described at
paragraph (b)(2)(vii) of this section is no longer correct due to the
reconciliation of an annual budget, then the general budget must also
be revised to reflect the annual budget reconciliation, and the revised
general budget must be included in the annual budget reconciliation
report.
(2) If an applicant requests an increase in CDQ allocation under a
multiyear CDP, the applicant must submit a new CDP application for
review by the Governor and approval by NMFS as described in paragraphs
(b) and (c) of this section.
(3) Substantial amendments. A CDP is a working business plan and
must be kept up-to-date. Substantial amendments to a CDP will require
written notification to the Governor and subsequent approval by the
Governor and NMFS before any change in a CDP can occur. The Governor
may recommend to NMFS that the request for an amendment be approved.
NMFS may notify the Governor in writing of approval or disapproval of
the amendment within 30 days of receipt of the Governor's
recommendation. The Governor's recommendation for approval of an
amendment will be deemed approved if NMFS does not notify the Governor
in writing within 30 days of receipt of the Governor's recommendation.
If NMFS determines that the CDP, if changed, would no longer meet the
criteria under paragraph (d) of this section, or if any of the
requirements under this section would not be met, NMFS shall notify the
Governor in writing of the reasons why the amendment cannot be
approved.
(i) For the purposes of this section, substantial amendments are
defined as changes in a CDP, including, but not limited to, the
following:
(A) Any change in the applicant communities or replacement of the
managing organization;
(B) A change in the CDP applicant's harvesting or processing
partner;
(C) Funding a CDP project in excess of $100,000 that is not part of
an approved general budget;
[[Page 48095]]
(D) More than a 20 percent increase in the annual budget of an
approved CDP project;
(E) More than a 20 percent increase in actual expenditures over the
approved annual budget for administrative operations; or
(F) The Governor recommends to NMFS that the following is a
substantial amendment:
(1) A material change in the contractual agreement(s) between the
CDP applicant and their harvesting or processing partner; or
(2) A material change in a CDP project.
(ii) Notification of an amendment to a CDP shall include the
following information:
(A) The background and justification for the amendment that
explains why the proposed amendment is necessary and appropriate;
(B) An explanation of why the proposed change to the CDP is an
amendment according to paragraph (e)(3)(i) of this section;
(C) A description of the proposed amendment, explaining all changes
to the CDP that result from the proposed amendment;
(D) A comparison of the original CDP text with the text of the
proposed changes to the CDP, and the changed pages of the CDP for
replacement in the CDP binder;
(E) Identification of any NMFS' findings that would need to be
modified if the amendment is approved along with the proposed modified
text;
(F) A description of how the proposed amendment meets the
requirements of the CDQ regulations in this section. Only those CDQ
regulations that are affected by the proposed amendment need to be
discussed.
(4) Technical amendments. Any change to a CDP that is not a
substantial amendment as defined at paragraph (e)(3)(i) of this
section, is a technical amendment. It is the responsibility of the CDQ
group to coordinate with the Governor to ensure that a proposed
technical amendment does not meet the definition for a substantial
amendment. Technical amendments require written notification to the
Governor and NMFS before the change in a CDP occurs. A technical
amendment will be approved when the CDQ group receives a written notice
from NMFS announcing the receipt of the technical amendment. The
Governor may recommend to NMFS in writing that a technical amendment be
disapproved at any time. NMFS may disapprove a technical amendment in
writing at any time with the reasons therefor. Notification should
include:
(i) The pages of the CDP with the text highlighted to show
deletions and additions; and
(ii) The changed pages of the CDP for replacement in the CDP
binder.
(5) It is the responsibility of the CDQ-managing organization to
cease fishing operations once its respective CDQ pollock allocation has
been reached. Total pollock harvests for each CDP will be determined by
observer estimates of total catch and catch composition as reported on
the daily observer catch message. The CDQ-managing organization must
arrange for processors to transmit a copy of the observer daily catch
message to it in a manner that allows the CDQ-managing organization to
inform processors to cease fishing operations before the CDQ allocation
has been exceeded. CDQ-managing organization representatives must also
inform NMFS within 24 hours after the CDQ has been reached and fishing
has ceased. If NMFS determines that the observer, the processor, or the
CDQ-managing organization failed to follow the procedures described in
paragraph (h) of this section for estimating the total harvest of
pollock, or violated any other regulation in this part, NMFS reserves
the right to estimate the total pollock harvest based on the best
available data.
(f) Suspension or termination of a CDP.
* * * * *
[FR Doc. 95-23029 Filed 9-13-95; 12:03 pm]
BILLING CODE 3510-22-W
