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Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 24, 2006 (Volume 71, Number 78)]
[Proposed Rules]
[Page 20966-20968]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap06-23]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 680
[Docket No.: 060404093-6093-01; 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: Proposed rule; request for comments.
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SUMMARY: NMFS proposes changes to the regulations implementing 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 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 proposed rule is intended to promote the goals and
objectives of the Fishery Management Plan for Bering Sea/Aleutian
Islands (BSAI) King and Tanner Crabs (FMP), the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), and
other applicable law.
DATES: Written comments must be received no later than May 9, 2006.
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Records Administrator. Comments may be submitted by:
? Mail: P.O. Box 21668, Juneau, AK 99802.
? Hand Delivery to the Federal Building: 709 West 9th
Street, Room 420A, Juneau, AK.
? Fax: 907-586-7557.
? E-mail: 0648-AU24-sideboard680.22@noaa.gov. Include in the
subject line of the e-mail the following document identifier: GOA
sideboards. E-mail comments, with or without attachments, are limited
to 5 megabytes.
? Webform at the Federal eRulemaking Portal:
http://www.regulations.gov 
. Follow the instructions at that
site for submitting comments.
Copies of the regulatory impact review/initial regulatory
flexibility analysis (RIR/IRFA), prepared for this action and copies of
the Bering Sea Aleutian Islands Crab Fisheries Final Environmental
Impact Statement/Regulatory Impact Review/Initial Regulatory
Flexibility Analysis/Social Impact Assessment (EIS/RIR/IRFA/SIA)
prepared for the Crab Rationalization Program are available from NMFS
at the mailing address specified above or from the NMFS Alaska Region
Web site 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.
A notice of availability for Amendments 18 and 19 was published in
the Federal Register on September 1, 2004 (69 FR 53397). NMFS published
a proposed rule to implement Amendments 18 and 19 on October 29, 2004
(69 FR 63200). NMFS approved Amendments 18 and 19 on November 19, 2004.
NMFS published a final rule to implement Amendments 18 and 19 on March
2, 2005 (70 FR 10174) and a final rule (70 FR 13097; March 18, 2005) to
correct OMB control numbers provided in the final rule dated March 2,
2005 (70 FR 10174). NMFS also published two final rules (70 FR 33390;
June 8, 2005, and 70 FR 75419; December 20, 2005) to correct certain
provisions in the final rule dated March 2, 2005 (70 FR 10174).
NMFS intends to correct two aspects of the sideboard provisions in
the regulations implementing the Program. One change would remove the
sideboard limits from vessels that did not generate Bering Sea snow
crab quota share under the Program. The second change would clarify
that the sideboards apply to federally permitted vessels that fish in
the State parallel groundfish fisheries. These changes are necessary to
implement the Program's sideboard provisions.
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 Provisions
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.
This concern about spillover effects is limited primarily to the
GOA where the Pacific cod TAC is not allocated among gear types. In the
BSAI, most of the Pacific cod TAC is allocated to vessels using
longline and trawl gear, and LLP license restrictions prevent the entry
of new pot vessels into the BSAI Pacific cod fishery. Hence, snow crab
fishermen who wish to increase their groundfish fishing activity would
do so primarily in the GOA Pacific cod fishery.
The GOA groundfish sideboard restrictions are intended to apply to
any crab vessel that: (1) Is not authorized
[[Page 20967]]
under the American Fisheries Act, (2) has a fishing history that
generated any amount of Bering Sea snow crab quota share, (3) has an
LLP license earned in whole or in part by the crab fishing history of
such vessels, or (4) is fishing under an LLP license derived in whole
or in part from a vessel in (1) through (4). Those snow crab vessels
subject to GOA groundfish sideboard restrictions are limited, in the
aggregate, from harvesting an amount of each GOA groundfish species
that exceeds the percentage of each species that such vessels retained,
in the aggregate, from 1996 to 2000, relative to the total retained
catch of each species by all groundfish vessels during the same period.
The sideboard restrictions also are apportioned by season and/or area
for each GOA groundfish TAC that is apportioned by season or area.
Some additional sideboard restrictions and exemptions for GOA
Pacific cod do not apply to other GOA groundfish species. Any vessel
subject to GOA groundfish sideboards that landed less than 50 mt
(110,231 lb) of GOA groundfish between 1996 and 2000, is prohibited
from engaging in directed fishing for GOA Pacific cod at all times.
Additionally, any vessel that landed less than 100,000 pounds (45.4 mt)
of Bering Sea snow crab and more than 500 mt (1,102,311 lb) of GOA
Pacific cod between 1996 and 2000 is exempt from the GOA Pacific cod
sideboard restrictions. These sideboard restrictions also apply to any
vessel fishing under an LLP license earned by the crab fishing history
of such vessel.
NMFS notified all persons who own a vessel or hold a LLP license
subject to the sideboard restrictions by issuing amended Federal
fisheries permits and LLP licenses to each affected vessel owner or LLP
license holder. The amended Federal fisheries permits and LLP licenses
display the type of sideboard restriction on the face of the permit or
license.
Need for Regulatory Changes
This action proposes two changes to the regulations governing
sideboard protections for the GOA groundfish fisheries at 50 CFR part
680.22. The first change would remove the sideboard restrictions from
vessels whose histories did not generate Bering Sea snow crab quota
share. The second change would clarify 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
landings during the qualifying period. This change has the unintended
consequence of applying the sideboards to vessels that did not qualify
for quota share. NMFS proposes to change 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. NMFS
proposes to change the regulations to clarify that the GOA groundfish
sideboard directed fishing closures apply to federally permitted
vessels while fishing in the State parallel fisheries.
The Council developed the sideboard limits 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, primarily the GOA Pacific cod fishery.
Amendment 18 does not specifically apply the sideboard limits to
vessels operating in the State parallel fisheries. Amendment 18
required cooperatives to limit their members' aggregate Pacific cod
catch in both Federal and State waters to the sideboard amount. In a
letter dated June 2, 2004, NMFS requested that the Council remove the
requirement that cooperatives manage the sideboard fishing activity of
their members because NMFS determined this provision was not practical
or enforceable. In the same letter, NMFS informed the Council that it
would manage the groundfish sideboards through fleet-wide directed
fishing closures for Federal waters and the parallel fishery in State
waters. The Council removed the cooperative management requirement
paragraph in Amendment 19. However, deleting this paragraph had the
effect of removing from the FMP the sideboard limits for vessels
fishing in State waters.
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.
Classification
NMFS has determined that the proposed rule is consistent with the
FMP and preliminarily determined that the rule is consistent with the
Magnuson-Stevens Act and other applicable laws.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an initial regulatory flexibility analysis (IRFA) as
required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA describes the economic impact this proposed rule, if adopted,
would have on small entities. A description of the action, why it is
being considered, and the legal basis for 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).
Number and Description of Small Entities Directly Regulated by the
Proposed Action
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.
Impacts on Directly Regulated Small Entities
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
[[Page 20968]]
regulations. These corrections will implement the sideboards as
intended by the Council and mandated by section 313(j) of the Magnuson-
Stevens Act.
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 six 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 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/RIR/IRFA/SIA 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 huge economic
benefits, as discussed in the EIS/RIR/IRFA/SIA 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 therefore they 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 that 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 proposed 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.
This analysis did not reveal any Federal rules that duplicate,
overlap or conflict with the proposed action.
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.
List of Subjects in 50 CFR Part 680
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: April 17, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 680 as follows:
PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 680 continues to read as follows:
Authority: 16 U.S.C. 1862.
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, that are required to have a
Federal Fisheries Permit and/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. E6-6030 Filed 4-21-06; 8:45 am]
BILLING CODE 3510-22-S