42178 Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Rules and Regulations 

Toxic Substances Control Act (TSCA) 

for chemical substances which were the 

subject of premanufacture notices 

(PMNs), i.e., multi-walled carbon 

nanotubes (PMN P–08–177) and singlewalled carbon nanotubes (PMN P–08– 

328). These chemical substances are 

subject to TSCA section 5(e) consent 

orders issued by EPA. EPA published 

the SNURs using direct final rulemaking 

procedures. EPA received a notice of 

intent to submit adverse comments on 

these rules. Therefore, the Agency is 

withdrawing these SNURs, as required 

under the expedited SNUR rulemaking 

process. EPA also intends to publish in 

the Federal Register, under separate 

notice and comment rulemaking 

procedures, proposed SNURS for these 

two chemical substances. 

DATES: This final rule is effective August 

21, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

general information contact: Colby 

Lintner, Regulatory Coordinator, 

Environmental Assistance Division 

(7408M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (202) 554–1404; e-mail address: 

TSCA-Hotline@epa.gov. 

For technical information contact: 

Karen Chu, Chemical Control Division 

(7405M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (202) 564–8773; e-mail address: 

chu.karen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Does this Action Apply to Me? 

A list of potentially affected entities is 

provided in the Federal Register of June 

24, 2009 (74 FR 29982) (FRL–8417–6). If 

you have questions regarding the 

applicability of this action to a 

particular entity, consult the technical 

person listed under FOR FURTHER

INFORMATION CONTACT. 

II. What Rules are Being Withdrawn? 

In the Federal Register of June 24, 

2009 (74 FR 29982), EPA issued several 

direct final SNURs, including SNURs 

for the two chemical substances that are 

the subject of this withdrawal. These 

direct final rules were issued pursuant 

to the procedures in 40 CFR part 721, 

subpart D. In accordance with 40 CFR 

721.160(c)(3)(ii), EPA is withdrawing 

the rules issued for multi-walled carbon 

nanotubes (PMN P–08–177) and singlewalled carbon nanotubes (PMN P–08– 

328) because the Agency received a 

notice of intent to submit adverse 

comments. EPA intends to propose 

SNURs for these two chemical 

substances via notice and comment 

rulemaking in a future Federal Register 

document. 

For further information regarding 

EPA’s expedited process for issuing 

SNURs, interested parties are directed to 

40 CFR part 721, subpart D, and the 

Federal Register of July 27, 1989 (54 FR 

31314). The record for the direct final 

SNURs for these chemical substances 

which are being withdrawn was 

established at EPA–HQ–OPPT–2008– 

0252. That record includes information 

considered by the Agency in developing 

these rules and the notice of intent to 

submit adverse comments. 

III. How Do I Access the Docket? 

To access the electronic docket, 

please go to http://www.regulations.gov 

and follow the online instructions to 

access docket ID no. EPA–HQ–OPPT– 

2008–0252. Additional information 

about the Docket Facility is provided 

under ADDRESSES in the Federal 

Register document of June 4, 2009 (74 

FR 29982). If you have questions, 

consult the technical person listed 

under FOR FURTHER INFORMATION

CONTACT. 

IV. What Statutory and Executive Order 

Reviews Apply to this Action? 

This final rule revokes or eliminates 

an existing regulatory requirement and 

does not contain any new or amended 

requirements. As such, the Agency has 

determined that this withdrawal will 

not have any adverse impacts, economic 

or otherwise. The statutory and 

executive order review requirements 

applicable to the direct final rule were 

discussed in the Federal Register 

document of June 24, 2009 (74 FR 

29982). Those review requirements do 

not apply to this action because it is a 

withdrawal and does not contain any 

new or amended requirements. 

V. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This rule is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements. 

Dated: August 17, 2009. 

Wendy C. Hamnett, 

Acting Director, Office of Pollution Prevention 

and Toxics. 

■ Therefore, 40 CFR part 721 is 

amended as follows: 

PART 721—[AMENDED] 

■ 1. The authority citation for part 721 

continues to read as follows: 

Authority: 15 U.S.C. 2604, 2607, and 

2625(c). 

§ 721.10155 [Removed] 

■ 2. By removing § 721.10155. 

§ 721.10156 [Removed] 

■ 3. By removing § 721.10156. 

[FR Doc. E9–20150 Filed 8–20–09; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0809031176–91213–03] 

RIN 0648–AX25 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands (Amendment 90) and 

Gulf of Alaska Groundfish 

(Amendment 78); Limited Access 

Privilege Programs 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations 

implementing Amendment 90 to the 

Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area and 

Amendment 78 to the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska. This regulation amends 

the Bering Sea and Aleutian Islands 

Amendment 80 Program and the Central 

Gulf of Alaska Rockfish Program to 

allow post-delivery transfers of 

cooperative quota to cover overages. 

This action is necessary to mitigate 

potential overages, reduce enforcement 

costs, and provide for more precise total 

allowable catch management. This 

action is intended to promote the goals 


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and objectives of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, the Fishery Management Plans, and 

other applicable law. 

DATES: Effective September 21, 2009. 

ADDRESSES: Amendment 90 to the 

Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area and 

Amendment 78 to the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska, the categorical exclusion 

memoranda, and the Regulatory Impact 

Review/Final Regulatory Flexibility 

Analyses (RIR/FRFA) prepared for this 

action as well as the Programmatic 

Supplemental Environmental Impact 

Statement prepared for Alaska 

groundfish fisheries may be obtained 

from the NMFS Alaska Region website 

at: http://alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Glenn Merrill or Rachel Baker, 907– 

586–7228. 

SUPPLEMENTARY INFORMATION: The 

groundfish fisheries in the exclusive 

economic zone off Alaska are managed 

under the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(BSAI FMP) and the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska (GOA FMP). The FMPs 

were prepared by the North Pacific 

Fishery Management Council (Council) 

under the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). Amendment 

80 to the BSAI FMP implemented the 

Amendment 80 Program. Amendment 

68 to the GOA FMP implemented the 

Central GOA Rockfish Program 

(Rockfish Program). Regulations 

implementing Amendment 80 were 

published on September 14, 2007 (72 FR 

52668), and regulations implementing 

Amendment 68 were published on 

November 20, 2006 (71 FR 67210). 

These regulations are located at 50 CFR 

part 679. 

Background 

NMFS issued quota share (QS) under 

the Amendment 80 Program and the 

Rockfish Program. Under the 

Amendment 80 Program, NMFS issued 

QS to persons based on their qualifying 

harvest histories using specific trawl 

catcher/processor vessels in six BSAI 

non-pollock groundfish fisheries during 

1998 through 2004. Under the Rockfish 

Program, NMFS issued QS to persons 

based on their qualifying harvest 

histories using trawl catcher vessels and 

trawl catcher/processors of rockfish 

species and species harvested 

incidentally in Central Gulf of Alaska 

rockfish fisheries during 1996 through 

2002. These two programs are 

commonly known as limited access 

privilege programs (LAPPs) because the 

participants may receive exclusive 

access to fishery resources if specific 

conditions are met. Each year, the 

person issued QS may participate in 

either a fishery cooperative with other 

QS holders or in a limited access fishery 

with other non-cooperative participants 

who hold QS. The total amount of QS 

assigned to all members of a cooperative 

yields an amount of cooperative quota 

(CQ), which is a permit that provides an 

exclusive harvesting privilege for a 

specific amount of groundfish, in 

specific fisheries, in a given year. 

Additionally, a cooperative also receives 

a specific amount of CQ that may be 

used for the incidental catch of a 

specific amount of crab or halibut. 

Incidentally caught crab or halibut, 

commonly called prohibited species 

catch (PSC), cannot be retained, 

processed, or sold. QS holders 

participating in the limited access 

fishery are not assigned an exclusive 

harvest or PSC use privilege, but may 

compete for the allocation of groundfish 

and PSC remaining after CQ has been 

assigned to all cooperatives. 

After joining a cooperative or the 

limited access fishery, a person may 

participate in only that cooperative or 

the limited access fishery for that 

calendar year. A person who joins a 

cooperative must assign the individual 

fishing quota derived from his or her QS 

(prior to the start of the fishing season 

for that LAPP) to the cooperative and 

the specific vessels that will be fishing 

for that cooperative. For example, 

persons wishing to participate in an 

Amendment 80 cooperative must assign 

their QS and vessels to an Amendment 

80 cooperative by November 1 of each 

year to be eligible to fish in a 

cooperative for the following calendar 

year. Once a person assigns his QS or 

vessel to a cooperative, he may not 

reassign his QS or vessel to another 

cooperative or the limited access fishery 

during the calendar year for which that 

QS or vessel is assigned. 

Table 1 shows the specific groundfish 

species for which NMFS issues QS and 

the PSC species for which CQ may be 

issued if a person joins a cooperative 

under the Amendment 80 Program and 

Rockfish Program. 


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The mechanisms for joining a 

cooperative, the process for issuing CQ 

for groundfish or PSC species, and the 

monitoring and enforcement provisions 

necessary to ensure proper accounting 

of catch under the Amendment 80 and 

Rockfish Programs are described in 

detail in the final rules implementing 

those LAPPs and are not repeated here 

(for the Amendment 80 Program see 72 

FR 52668, September 14, 2007; for the 

Rockfish Program see 71 FR 67210, 

November 20, 2006). 

The size of each cooperative’s annual 

CQ allocation is based on the amount of 

QS held by the members relative to the 

total QS pool for a given groundfish 

fishery. For example, a cooperative in 

the Amendment 80 Program composed 

of members holding QS equaling 40 

percent of the QS pool in the yellowfin 

sole fishery would receive CQ to harvest 

40 percent of the annual total allowable 

catch (TAC) of yellowfin sole that is 

assigned to the Amendment 80 Program. 

Any catch of groundfish or PSC species 

for which CQ is issued under the 

specific LAPP (i.e., either the 

Amendment 80 or Rockfish Program) is 

debited from a cooperative’s CQ 

account. 

The Amendment 80 Program and the 

Rockfish Program allow cooperatives to 

transfer their unused CQ between 

cooperatives. Transfers allow 

cooperatives to tailor their operations to 

specific harvesting conditions. All 

transfers must be approved by NMFS 

before they become effective. Once a CQ 

transfer has been approved by NMFS, 

the CQ account of the transferring 

cooperative is debited, and the CQ 

account of the receiving cooperative is 

credited. 

CQ Overages Under Current System 

Under existing regulations, a 

cooperative in either the Amendment 80 

Program or the Rockfish Program is 

prohibited from catching groundfish or 

PSC on an annual basis that exceeds the 

amount of CQ that is issued to that 

cooperative (see § 679.7(n)(7)(i) for the 

Rockfish Program and § 679.7(o)(4)(v) 

for the Amendment 80 Program). This 

prohibits a cooperative from having a 

negative CQ balance for a given species 

and subsequently receiving transferred 

CQ after the landing to rectify the 

negative CQ balance. 

CQ overages by cooperatives in the 

Rockfish Program and Amendment 80 

Program are likely to be uncommon. In 

2007, the first year under the Rockfish 

Program, no overages of CQ occurred. 

Results from 2008, the second year of 

the Rockfish Program, and the first year 

of the Amendment 80 Program, are 

pending. 

The Council recommended 

Amendments 90 and 78 to the FMPs to 

improve the fleet’s flexibility, reduce 

the potential number of violations for 

overages, reduce enforcement costs, and 

allow more complete harvest of 

allocations. NMFS published a notice of 

availability for Amendments 90 and 78 

on December 17, 2008 (73 FR 76605), 

and a proposed rule on January 5, 2009 

(74 FR 254). More information on how 

overages can occur and an overview of 

the catch and accounting system used 

by NMFS and the NOAA Office for Law 

Enforcement to monitor CQ is described 

in the preamble to the proposed rule. 

The comment period on the proposed 

rule and the notice of availability ended 

on February 17, 2009. Six comments 

were received from three individuals 

regarding the proposed rule and FMP 

amendment. Two comments supported 

the proposed rule, and three comments 

questioned specific technical aspects of 

the regulation. These comments did not 

raise new issues or concerns that have 

not been addressed in the RIR/FRFA 

prepared to support this action or the 

preamble to the proposed rule. The 

remaining comment was not directly 

related to the action and did not raise 

new issues or concerns that have not 

already been addressed in the analysis 

prepared to support this action or the 

preamble to the proposed rule. After 


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Federal Register / Vol. 74, No. 161 / Friday, August 21, 2009 / Rules and Regulations 42181 

consideration of these comments, NMFS 

approved Amendments 90 and 78 on 

March 16, 2009. 

Effects of the Action 

A transfer of CQ after fish have been 

landed to rectify a negative CQ balance 

is commonly known as a post-delivery 

transfer. The following sections briefly 

describe the effects of allowing postdelivery transfers to cover CQ overages. 

Additional discussion of the rationale 

and effects of this action is provided in 

the preamble to the proposed rule 

published on January 5, 2009 (74 FR 

254), and is not repeated here. 

Allowing post-delivery transfers in 

the Amendment 80 Program and 

Rockfish Program can mitigate potential 

overages, reduce enforcement costs, and 

provide for more precise TAC 

management and more value from the 

harvests for participants. Post-delivery 

transfers also increase fleet flexibility 

and allow more efficient use of 

resources. The flexibility to complete 

transfers after delivery reduces the 

potential that some CQ will remain 

unharvested if a cooperative is not able 

to harvest its CQ allocation without the 

risk of an overage, and minimizes the 

potential for CQ overages because a CQ 

account can be balanced after delivery 

through a post-delivery transfer. 

This action allows post-delivery 

transfers to cover CQ overages. There is 

no limit on the size of a post-delivery 

transfer or on the number of postdelivery transfers a cooperative could 

undertake, but a vessel that is assigned 

to that cooperative may not begin a new 

fishing trip for that cooperative if the 

CQ account balance is zero or negative 

for any of the groundfish or PSC species 

CQ assigned to the cooperative. This 

action prohibits a person from having a 

negative balance in a CQ account for 

any species after the end of the calendar 

year for which that CQ permit was 

issued. 

This rule does not modify existing 

regulations that require that CQ issued 

to a cooperative can be transferred only 

among other cooperatives, and that 

participants in a limited access fishery 

in either of these two LAPPs may not 

transfer any unused TAC to 

cooperatives as CQ. 

Under the final rule, no member of a 

cooperative may use any vessel assigned 

to that cooperative to begin a new 

fishing trip for any groundfish CQ 

species unless the CQ balance of the 

cooperative for all groundfish or PSC 

species for which CQ is assigned is 

positive. The final rule defines the term 

‘‘fishing trip’’ for purposes of this 

requirement to provide a clear standard 

for fishery participants. A fishing trip is 

defined as the period beginning when a 

vessel operator commences harvesting 

any groundfish species that is assigned 

CQ under the relevant LAPP and ending 

when the vessel operator removes any 

processed or unprocessed groundfish 

CQ species from that vessel. The 

specific groundfish and PSC species for 

both LAPPs are listed above in Table 1. 

The definition of a fishing trip 

effectively extends from the first harvest 

of a groundfish species that is issued CQ 

in the applicable LAPP until the 

beginning of a delivery of groundfish 

from a catcher vessel, or the beginning 

of offloading processed groundfish from 

a catcher/processor. This definition 

ensures that no member of a cooperative 

could commence fishing for any 

groundfish species on the cooperative’s 

CQ permit on any vessel until the CQ 

accounts of all groundfish and PSC 

species assigned to that cooperative are 

positive. This provision is intended to 

discourage harvesters from continuing 

to debit groundfish or PSC against their 

cooperative’s CQ account for numerous 

fishing trips and run a negative CQ 

balance without ensuring that adequate 

unused CQ exists that can be transferred 

from another cooperative to cover that 

negative balance. 

This rule prohibits a cooperative from 

maintaining a negative balance in its CQ 

accounts for any groundfish or PSC 

species after the end of the calendar 

year for which that CQ was issued. This 

prohibition effectively requires that all 

post-delivery CQ transfers must be 

completed by December 31 of each year. 

Overages that are not covered by 

December 31 of each year are subject to 

a penalty or other enforcement action. 

This action is expected to reduce the 

risk of potential overages because 

cooperatives would have time to 

balance their CQ accounts by the end of 

the calendar year. 

Summary of Regulatory Changes 

This action makes the following 

changes to the existing regulatory text at 

50 CFR part 679: 

• Add two new paragraphs to define 

the term ‘‘fishing trip’’ at § 679.2; 

• Modify the existing prohibitions at 

§ 679.7(n)(7)(i) for the Rockfish Program 

and § 679.7(o)(4)(v) for the Amendment 

80 Program to clarify that a person may 

not begin a fishing trip with a vessel 

assigned to a Rockfish Program 

cooperative or Amendment 80 Program 

cooperative, if that Amendment 80 or 

Rockfish cooperative does not hold 

unused CQ for all species for which CQ 

is assigned; and 

• Add prohibitions at § 679.7(n)(7)(vi) 

for the Rockfish Program and 

§ 679.7(o)(4)(vi) for the Amendment 80 

Program to prohibit a person from 

having a negative balance in a CQ 

account for any species after the end of 

the calendar year for which that CQ 

permit was issued. 

Response to Comments 

NMFS received six comments from 

three individuals regarding 

Amendments 90 and 78 and the 

proposed rule. Two commenters 

represent organizations of Rockfish 

Program and Amendment 80 Program 

participants that will be affected by this 

action. The third commenter did not 

indicate an affiliation. 

Comment 1: The commenter raises 

general concerns about fisheries 

management asserting that fishery 

policies have been overly liberal and 

have not been to the benefit of American 

citizens. The commenter asserts that 

NMFS is biased and should not be 

allowed to manage fisheries. 

Response: The comments are not 

specifically related to the proposed rule 

and recommend broad changes to 

fisheries management that are outside 

the scope of this action. 

Comment 2: The commenter 

represents Rockfish Program 

participants who support this action 

and believe it will facilitate catch 

accounting in the Rockfish Program to 

accommodate overages. Given the 

careful oversight of cooperative 

managers, post-delivery transfers are 

likely to be infrequent and will address 

minor overages. 

Response: NMFS notes the support for 

this action. 

Comment 3: The Rockfish Program is 

a multi-species trawl LAPP. Trawl 

fisheries may catch species other than 

those intended, which can make it more 

difficult to maximize a cooperative’s CQ 

allocation without exceeding that 

amount. These factors should be cited as 

additional rationale for this action. 

Response: The Council addressed the 

factors cited by the commenter during 

the development of Amendments 90 

and 78. Section 2.3.1 of the analysis 

prepared for Amendment 78 provides a 

detailed description of the multi-species 

nature of the Rockfish Program. Section 

2.4 of the analysis describes the 

complexities harvesters face when 

trying to harvest a specific amount of 

catch in multi-species trawl fisheries 

and the potential effects of this action to 

mitigate agency and industry 

enforcement costs resulting from 

potential overages. 

Comment 4: The definition of ‘‘fishing 

trip’’ could be subject to interpretation, 

and the commenter requests 

clarification on how this definition 

would apply to the Rockfish Program. 


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According to the proposed definition, a 

Rockfish Program fishing trip is defined 

as the period beginning when a vessel 

operator commences harvesting any 

Rockfish Program species and ending 

when the vessel operator offloads or 

transfers any Rockfish Program species, 

whether processed or unprocessed, from 

the vessel. A vessel is considered 

fishing for Rockfish Program species 

only when they are checked into the 

rockfish fishery via NMFS inseason 

management. The commenter assumes 

that this prohibition would not restrict 

a vessel from participating in another 

fishery where these species could be 

taken incidentally or as a directed target 

fishery but not a part of the Rockfish 

Program. 

Response: NMFS agrees with the 

interpretation provided by the 

commenter. The regulations make it 

clear that the post-delivery transfer 

provisions apply only to the delivery of 

fish caught under the authority of a CQ 

permit. When a vessel is not fishing 

under a Rockfish Program fishery, fish 

are not harvested under a CQ permit, 

and the post-delivery requirement 

provisions do not apply. 

Comment 5: It appears that a 

cooperative would not be in violation of 

the requirement that a vessel cannot 

begin a new fishing trip if two or more 

of its vessels are on the grounds 

simultaneously, and one vessel in the 

cooperative makes a delivery that causes 

the cooperative to exceed its CQ cap 

while other cooperative vessels are 

fishing. The regulations appear to allow 

vessels in a cooperative to complete 

their fishing trips, but would not allow 

them to begin a new fishing trip. 

Response: NMFS agrees with the 

interpretation provided by the 

commenter. The regulations at 50 CFR 

679.7(n)(7)(i) make it clear that it is 

prohibited to ‘‘begin a fishing trip for 

any Rockfish Program species with any 

vessel assigned to a Rockfish 

cooperative if the total amount of 

unharvested CQ that is currently held 

by that Rockfish cooperative is zero or 

less for any species for which CQ is 

assigned.’’ The regulations do not 

prohibit vessels assigned to a 

cooperative from completing a fishing 

trip if the CQ account for a cooperative 

has been exceeded while those vessels 

are fishing. 

Comment 6: The commenter 

represents Amendment 80 Program 

participants who support this action 

and believe it will facilitate catch 

accounting in the Amendment 80 

Program, reduce the potential for CQ 

overages, reduce enforcement costs, and 

aid the fleet in fully harvesting its CQ 

accounts. 

Response: NMFS notes the support for 

this action. 

Classification 

Consistency With the Magnuson-Stevens 

Act and Other Laws 

The Assistant Administrator for 

Fisheries, NOAA, has determined that 

Amendments 90 and 78 are necessary 

for the conservation and management of 

BSAI and GOA groundfish fisheries and 

that they are consistent with the 

Magnuson-Stevens Act and other 

applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Final Regulatory Flexibility Analysis 

(FRFA) 

A FRFA was prepared that describes 

the economic impact that this action has 

on small entities. The RIR/FRFA 

prepared for this final rule is available 

from NMFS (see ADDRESSES). The 

FRFA for this action describes the 

action, why this action is being 

proposed, the objectives and legal basis 

for the final rule, the type and number 

of small entities to which the final rule 

applies, and projected reporting, 

recordkeeping, and other compliance 

requirements of the final rule. It also 

identifies no overlapping, duplicative, 

or conflicting federal rules and 

describes any significant alternatives to 

the final rule that accomplish the stated 

objectives of the Magnuson-Stevens Act 

and other applicable statutes, and that 

would minimize any significant adverse 

economic impact of the final rule on 

small entities. The description of the 

action, its purpose, and its legal basis 

are described in the preamble and are 

not repeated here. 

An IRFA was prepared and 

summarized in the classifications 

section of the preamble to the proposed 

rule, which was published on January 5, 

2009 (74 FR 254). The public comment 

period ended on February 17, 2009. 

NMFS received three public 

submissions containing six unique 

comments on Amendments 90 and 78 

and the proposed rule. These comments 

did not address the IRFA. 

For purposes of a FRFA, the Small 

Business Administration (SBA) has 

established that a business involved in 

fish harvesting is a small business if it 

is independently owned and operated, 

not dominant in its field of operation 

(including its affiliates), and has 

combined annual gross receipts not in 

excess of $4.0 million for all its 

affiliated operations worldwide. A 

seafood processor is a small business if 

it is independently owned and operated, 

not dominant in its field of operation, 

and employs 500 or fewer persons on a 

full-time, part-time, temporary, or other 

basis at all its affiliated operations 

worldwide. 

The SBA does not have a size 

criterion for businesses that are 

involved in both the harvesting and 

processing of seafood products, and 

NMFS has applied and continues to 

apply SBA’s fish harvesting criterion for 

those businesses because catcher/ 

processors are first and foremost fish 

harvesting businesses. Therefore, a 

business involved in both the harvesting 

and processing of seafood products is a 

small business if it meets the $4.0 

million criterion for fish harvesting 

operations. 

The FRFA contains a description and 

estimate of the number of small entities 

to which this final rule would apply. In 

the Rockfish Program, seven 

cooperatives formed during the first 

year (2007). The FRFA estimates that 

five of the seven cooperatives are large 

entities and two cooperatives are small 

entities. In the first year of the 

Amendment 80 Program (2008), 

participants formed one cooperative. 

The FRFA estimates that the 

Amendment 80 cooperative is a large 

entity. 

This action directly regulates CQ 

holders who might use post-delivery 

transfers to cover overages. Estimates of 

the number of small entities holding CQ 

are based on estimates of gross 

revenues. Landings data from the most 

recent season for which data are 

available (2005 for Rockfish Program 

and 2007 for Amendment 80 Program) 

were used to estimate the number of 

small entities. 

All of the directly regulated entities 

are expected to benefit from this action 

relative to the status quo alternative 

because the action allows greater 

flexibility and a period of time in which 

to reconcile overages. However, 

empirical data available to analysts on 

affiliations in the Rockfish Program and 

the Amendment 80 Program are 

currently incomplete, and it is not 

possible to certify this outcome as 

provided under the Regulatory 

Flexibility Act. Therefore, an IRFA and 

a FRFA were prepared as required. 

Among the three alternatives the 

Council considered for this action, the 

preferred alternative as described in this 

rule (Alternative 2) would best 

minimize potential adverse economic 

impacts on the directly regulated 

entities. Under the status quo 

(Alternative 1), no post-delivery 

transfers would be allowed and small 

entities would continue to be penalized 

for overages. Alternative 3 would have 


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allowed post-delivery transfers, but with 

more limitations and restrictions than 

Alternative 2, the alternative that 

provides small entities the most 

flexibility to cover overages. 

Recordkeeping and Reporting 

Requirements 

This final rule does not change 

existing reporting, recordkeeping, or 

other compliance requirements. Any 

person wishing to cover an overage will 

be required to engage in a transfer of 

CQ. The required reporting and 

recordkeeping for a post-delivery 

transfer is the same as for any other CQ 

transfer. NMFS Restricted Access 

Management Program (RAM) will 

continue to oversee share accounts and 

share use. At the time of landing, RAM 

will maintain a record of any overage, 

but instead of reporting overages to 

NOAA Office of Law Enforcement 

immediately, RAM will defer reporting 

until the end of the calendar year. 

Small Entity Compliance Guide 

NMFS has posted a small entity 

compliance guide on its website at 

http://alaskafisheries.noaa.gov to satisfy 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

requirement for a plain language guide 

to assist small entities in complying 

with this rule. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Recordkeeping and 

reporting requirements. 

Dated: August 18, 2009. 

John Oliver, 

Deputy Assistant Administrator For 

Operations, National Marine Fisheries 

Service. 

■ For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

679 as follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

■ 1. The authority citation for 50 CFR 

part 679 continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1801 et 

seq.; 3631 et seq.; Pub. L. 108–199; Pub. L. 

108–447; and Pub. L. 109–479. 

■ 2. In § 679.2, paragraphs (4) and (5) 

are added to the term ‘‘Fishing trip’’ to 

read as follows: 

§ 679.2 Definitions. 

* * * * * 

Fishing trip means: 

* * * * * 

(4) For purposes of § 679.7(n)(7), the 

period beginning when a vessel operator 

commences harvesting any Rockfish 

Program species and ending when the 

vessel operator offloads or transfers any 

processed or unprocessed Rockfish 

Program species from that vessel. 

(5) For purposes of § 679.7(o)(4), the 

period beginning when a vessel operator 

commences harvesting any Amendment 

80 species and ending when the vessel 

operator offloads or transfers any 

processed or unprocessed Amendment 

80 species from that vessel. 

* * * * * 

■ 3. In § 679.7, paragraphs (n)(7)(i) and 

(o)(4)(v) are revised, and paragraphs 

(n)(7)(vi) and (o)(4)(vi) are added to read 

as follows: 

§ 679.7 Prohibitions. 

* * * * * 

(n) * * * 

(7) * * * 

(i) Begin a fishing trip for any 

Rockfish Program species with any 

vessel assigned to a Rockfish 

cooperative if the total amount of 

unharvested CQ that is currently held 

by that Rockfish cooperative is zero or 

less for any species for which CQ is 

assigned. 

* * * * * 

(vi) Have a negative balance in a CQ 

account for any species for which CQ is 

assigned after the end of the calendar 

year for which a CQ permit was issued. 

* * * * * 

(o) * * * 

(4) * * * 

(v) Begin a fishing trip for any 

Amendment 80 species with any vessel 

assigned to an Amendment 80 

cooperative if the total amount of 

unharvested CQ that is currently held 

by that Amendment 80 cooperative is 

zero or less for any species for which 

CQ is assigned. 

(vi) Have a negative balance in a CQ 

account for any species for which CQ is 

assigned after the end of the calendar 

year for which a CQ permit was issued. 

* * * * * 

[FR Doc. E9–20208 Filed 8–20–09; 8:45 am] 

BILLING CODE 3510–22–S 


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