Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30381

period, an adverse or negative comment,

or written notice of intent to submit an

adverse or negative comment, a

document withdrawing the direct final

rule will be published in the Federal

Register, and a notice of proposed

rulemaking may be published with a

new comment period.

Agency Findings

The regulations adopted herein will

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this final rule does

not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.

The FAA has determined that this

regulation is not controversial and

unlikely to result in adverse or negative

comments and only involves an

established body of technical

regulations that require frequent and

routine amendments to keep them

operationally current. Therefore, this

regulation (1) is not a ‘‘significant

regulatory action’’ under Executive

Order 12866; (2) is not a ‘‘significant

rule’’ under DOT Regulatory Policies

and Procedures (44 FR 11034; February

26, 1979); and (3) as the anticipated

impact of this proposal is minimal,

preparation of a Regulatory Evaluation

is not necessary.

Since this is a routine matter that will

only affect air traffic procedures and air

navigation, the FAA certifies that this

proposed rule will not have a significant

economic impact on a substantial

number of small entities under the

criteria of the Regulatory Flexibility Act.

Comments Invited

Although this action is in the form of

a direct final rule and was not preceded

by a notice of proposed rulemaking,

comments are invited on this rule.

Interested persons are invited to

comment on this rule by submitting

such written data, views, or arguments

as they may desire. Communications

should identify the Rules Docket

number and be submitted in triplicate to

the address specified under the caption

ADDRESSES. All communications

received on or before the specified

closing date for comments will be

considered, and this rule may be

amended or withdrawn in light of

comments received. Factual information

that supports the commenter’s ideas and

suggestions is extremely helpful in

evaluating the effectiveness of this

action and determining whether

additional rulemaking action may be

needed.

Comments are specifically invited on

the overall regulatory, aeronautical,

economic, environmental, and energyrelated aspects of the rule that might

suggest a need to modify the rule. All

comments submitted will be available,

both before and after the closing date for

comments, in the Rules Docket for

examination by interested persons. A

report that summarizes each FAApublic contact concerned with the

substance of this action will be filed in

the Rules Docket. Commenters wishing

the FAA to acknowledge receipt of their

comments submitted in response to this

rule must submit a self-addressed,

stamped postcard on which the

following statement is made:

‘‘Comments to Airspace Docket No. 97–

ASO–28.’’ The postcard will be date

stamped and returned to the

commenter.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

Adoption of the Amendment

Accordingly, the Federal Aviation

Administration amends 14 CFR part 71

as follows:

PART 71—DESIGNATION OF CLASS A,

CLASS B, CLASS C, CLASS D, AND

CLASS E AIRSPACE AREAS;

AIRWAYS; ROUTES; AND REPORTING

POINTS

1. The authority citation for 14 CFR

part 71 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389.

§ 71.1 [Amended]

2. Amend paragraph 2004 of the

Federal Aviation Administration Order

7400.9E, Airspace Designations and

Reporting Points, dated September 10,

1997, and effective September 16, 1997,

which is incorporated by reference in 14

CFR 71.1, as follows:

Paragraph 2004—Jet Routes

* * * * *

J–66 [Revised]

From Newman, TX; via Big Spring, TX;

Abilene, TX; Ranger, TX; Bonham, TX; Little

Rock, AR; Memphis, TN; INT Memphis 100°

and Rome, GA 284° radials; to Rome.

* * * * *

Issued in Washington, DC, on May 28,

1998.

John S. Walker,

Program Director for Air Traffic Airspace

Management.

[FR Doc. 98–14881 Filed 6–3–98; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 970703166–8129–03; I.D.

060997A]

RIN 0648–AH65

Fisheries of the Exclusive Economic

Zone off Alaska; Community

Development Quota Program

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues a final rule that

would implement part of Amendment

39 to the Fishery Management Plan for

the Groundfish Fishery of the Bering

Sea and Aleutian Islands Area (BSAI)

and part of Amendment 5 to the Fishery

Management Plan for the Commercial

King and Tanner Crab Fisheries in the

Bering Sea/Aleutian Islands (BS/AI).

These regulations implement

administrative revisions and the catch

monitoring and accounting

requirements for the Multispecies

Community Development Quota (MS

CDQ) Program.

DATES: Effective July 6, 1998 except for

§§ 679.5(n), 679.30(a)(5)(i)(A)(2), and

679.32(c)(4)(i) which are not effective

until the Office of Management and

Budget approves the information

collection requirement contained in

those sections. NMFS will publish a

document in the Federal Register

announcing the effective date for those

sections. Community Development

Plans (CDPs) for the MS CDQ Program

for the 1998 through 2000 CDP cycle

must be submitted to NMFS by July 7,

1998. Fishing under the approved

multispecies groundfish CDPs is

authorized to begin on October 1, 1998.

ADDRESSES: Copies of the

Environmental Assessment/Regulatory

Impact Review (EA/RIR) for this action

may be obtained from the North Pacific

Fishery Management Council, Suite 306,

605 West 4th Avenue, Anchorage, AK

99501–2252; telephone: 907–271–2809.

FOR FURTHER INFORMATION CONTACT:

Sally Bibb, 907–586–7228.

SUPPLEMENTARY INFORMATION: The U.S.

groundfish fisheries of the Gulf of

Alaska (GOA) and the BSAI in the EEZ

are managed by NMFS pursuant to the

fishery management plans (FMPs) for

groundfish in the respective
30382 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

management areas. The commercial

king crab and Tanner crab fisheries in

the BS/AI are managed by the State of

Alaska with Federal oversight, pursuant

to the FMP for those fisheries. The

FMPs were prepared by the Council,

pursuant to the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act), 16 U.S.C.

1801 et seq., and are implemented by

regulations for U.S. fisheries at 50 CFR

part 679. General regulations at 50 CFR

part 600 also apply.

On August 15, 1997, NMFS published

a proposed rule to implement the MS

CDQ Program and the Groundfish and

Crab License Limitation Program (LLP)

(62 FR 43866). This proposed rule

contained a description of, and rationale

for, the MS CDQ Program. Public

comment on the proposed rule was

invited through September 29, 1997.

Thirty-six letters of comment about the

MS CDQ portion of the proposed rule

were received and are addressed in the

following Response to Comments

section. Additionally, the Response to

Comments section addresses comments

about the MS CDQ Program

requirements that were received in

response to the proposed rule for the atsea scales program published on June

16, 1997 (62 FR 32564). The final rule

implementing the performance and

technical requirements for at-sea scales

was published on February 4, 1998 (63

FR 5836).

Because of the size and complexity of

the final rule to implement the MS CDQ

and LLP Programs, the need to respond

to the large number of public comments

received, and the need to respond to

time critical events in the fishery, the

LLP and MS CDQ programs are being

implemented by means of three separate

final rule documents. The first of these

final rules was published on February

19, 1998 (63 FR 8356) and implemented

the multispecies groundfish and crab

CDQ reserves and closure of the

Southeast Outside District of the GOA to

fishing with trawl gear. The CDQ

reserves had to be implemented early in

1998 in order to allocate groundfish,

prohibited species, and crab to the MS

CDQ Program for CDQ fishing in 1998.

This final rule is the second of the

three final rules implementing the MS

CDQ and LLP Programs. It implements

revisions to the administrative

regulations and new catch monitoring

regulations for the MS CDQ fisheries.

Response to Comments

Comments on Program Implementation

Comment 1: Does NMFS have

adequate funding and manpower to

implement the many obligations that it

imposes upon itself with the proposed

MS CDQ Program?

Response: NMFS’ Alaska Region has

obtained approval for the funding and

additional staff necessary to implement

the MS CDQ Program.

Comment 2: The proposed regulations

for combining vessels and processors

participating in the groundfish and

halibut CDQ fisheries under one set of

regulations are burdensome for

participants in the halibut CDQ fishery,

do not consider the differences between

the groundfish fisheries and the halibut

fisheries, and generate information not

worth the additional effort and cost to

the CDQ participants or NMFS.

Specifically, requirements for CDQ

observers in shoreside processors taking

deliveries of halibut CDQ, retention and

delivery of all groundfish CDQ species

by small vessels, CDQ check-in/checkout reports for all vessels, and weekly

summaries of the catch by all vessels are

not necessary for the halibut CDQ

fisheries.

Response: NMFS agrees that

differences exist between the small

vessel halibut CDQ fisheries and the

other groundfish CDQ fisheries,

including fixed gear sablefish. In 1997,

1,884,000 lb (854 mt) of halibut CDQ

was allocated to six CDQ groups. At

least 75 percent of the 1997 catch was

landed by small boats and skiffs under

32 ft (9.73 m) length overall (LOA) at

about 10 small shoreside processors or

at buying stations in Western Alaska

villages. These processors do not submit

other landing reports to NMFS and are

not required to have observer coverage.

In contrast, NMFS expects that most of

the groundfish CDQ will be harvested

by catcher/processors or large catcher

vessels delivering to large groundfish

shoreside processing plants.

In the proposed rule, NMFS proposed

to consolidate all of the CDQ fisheries

that would be managed by NMFS under

one set of monitoring and catch

accounting regulations to implement the

Council’s and NMFS’ intent that all

catch in the groundfish and halibut CDQ

fisheries be accounted for by a CDQ

allocation. Although NMFS proposed

different observer coverage, equipment,

and reporting requirements for different

size and gear type vessels, no

distinction was made between the

requirements for vessels of the same size

fishing in the halibut CDQ fisheries or

fishing in the groundfish CDQ fisheries.

However, based on public comment,

NMFS has determined that the

differences between the small-scale

halibut CDQ fisheries and the largerscale groundfish CDQ fisheries warrant

consideration of different catch

monitoring and CDQ accounting

regulations. Therefore, in this final rule,

NMFS revises part 679 as follows:

1. Three new definitions are added in

§ 679.2 to distinguish between the three

separate CDQ fisheries that will be

managed in 1998. These definitions will

be effective only for 1998 and will be

removed or revised in future

rulemaking.

a. Fixed gear sablefish and halibut

CDQ fishing means fishing with fixed

gear by an eligible vessel listed on an

approved Community Development

Plan (CDP) that results in the catch of

any halibut CDQ or in the catch of any

sablefish CDQ that accrues against the

fixed gear sablefish CDQ reserve.

b. Pollock CDQ fishing means fishing

with pelagic trawl gear by an eligible

vessel listed on an approved CDP that

results in the catch of pollock that

accrues against the CDQ group’s

allocation of pollock CDQ.

c. Groundfish CDQ fishing means

fishing by an eligible vessel listed on an

approved CDP that results in the catch

of any CDQ or prohibited species quota

(PSQ) species other than pollock CDQ,

halibut CDQ, and fixed gear sablefish

CDQ.

2. In § 679.32(a), the reference to the

halibut CDQ fisheries in the first

sentence of the applicability paragraph

is removed. The sentence now reads

‘‘for all CDQ and PSQ caught while

groundfish CDQ fishing as defined at

§ 679.2’’ instead of ‘‘in the groundfish or

halibut CDQ fisheries * * *.’’

No significant changes are made with

the final rule to state how the small

vessel halibut CDQ fishery will be

managed in 1999 and thereafter because

NMFS plans to solicit Council and

public input before developing such

measures. NMFS will publish

rulemaking prior to December 31, 1998,

to remove the sections with sunset dates

at §§ 679.2, 679.32(a)(2) and (3), and

679.32(e) and (f). This future rulemaking

will combine the catch accounting

regulations for pollock CDQ fishing and

fixed gear sablefish CDQ fishing with

the multispecies groundfish CDQ

fisheries managed under § 679.32 (a)

through (d). At that time, NMFS will

consider whether the small vessel

halibut CDQ fisheries that deliver

halibut CDQ to Western Alaska villages

should be managed under different

regulations than those under the

groundfish CDQ fisheries. Council and

public comment will be requested on

any proposed changes to the current

regulations.

Comments on CDQ Administration

Comment 3: The preamble to the

proposed rule states that a CDQ group

has a fiduciary responsibility to manage
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30383

CDQ assets in the best interests of the

CDQ communities. This statement

conflicts with corporate law because,

under corporate law, board members

have a fiduciary responsibility to the

corporation, not to the individual

shareholders. The obligation of the CDQ

groups to operate on behalf of the

member communities is already

enunciated throughout the CDP and the

allocation process.

Response: As do directors of other

corporate entities, the board of directors

of a CDQ group has primary fiduciary

responsibility to the CDQ group

corporation. However, the CDQ group

corporation exists solely to serve the

interests of the member communities as

a whole. When a CDQ group does not

serve the interests of the member

communities as a whole, the CDQ group

should be dissolved, and a new CDQ

group should take its place. The

interests of the member communities

should be expressed in the CDP. If a

CDQ group meets the milestones and

goals of an approved CDP, the interests

of the member communities will likely

be realized. If a CDQ group does not

follow its CDP and does not meet its

milestones and goals, the CDQ group is

likely not operating in the best interests

of the member communities. No change

to the regulations is required because

this topic was discussed only in the

preamble to the proposed rule.

Comment 4: The preamble to the

proposed rule states that the

communities have the opportunity to

review the activities of the board

members and the CDQ group, which

implies access to confidential data. An

‘‘open book’’ policy would have a

chilling effect on the CDQ group’s

ability to operate successful businesses.

Response: Any member of the public

may request information about a CDQ

group from NMFS. If NMFS determines

that the requested information is not

confidential and would not result in

substantial competitive harm, NMFS

will release that information to the

public.

Comment 5: Members of the board of

directors of a CDQ group should not be

required to be elected by community

members as proposed at

§ 679.30(a)(2)(iv). Board members are

volunteers. Community elections of

board members would require

expenditure for advertisement and other

election expenses and would discourage

the most qualified from serving. NMFS

should not remove the existing

regulation that requires the board of

directors to include one member from

each community. Finally, the definition

of ‘‘qualified applicant’’ should be

revised to explain that board members

may be elected by a community-wide

election, by the local fishermen’s

organization’s membership, or by the

CDQ community’s governing body.

Response: NMFS concurs. The

requirement in the proposed rule in

§ 679.30(a)(2)(iv) that ‘‘[i]f a qualified

applicant represents more than one

community, the board of directors of the

qualified applicant must include at least

one member elected in an at-large

election by his or her community, for

each community in the CDQ group.’’ is

changed to read, ‘‘[i]f a qualified

applicant represents more than one

community, the board of directors of the

qualified applicant must include at least

one member from each of the

communities represented.’’ NMFS notes

that CDQ board members are not

volunteers and are usually paid an

honorarium for their participation.

Comment 6: The information about

the board of directors in section

§ 679.30(a)(2)(iv) under the Managing

Organization Information should be

placed in the definition for ‘‘qualified

applicant’’ in the definitions section at

§ 679.2. Such a change would be an

improvement because the board of

directors constitutes a part of the

qualified applicant and not a part of the

managing organization.

Response: The information about the

board of directors must remain in

§ 679.30(a) because all information

required to be in a proposed CDP must

be in this section. NMFS recognizes that

paragraph (a)(2)(iv) is located in a

section that describes managing

organization information. However, no

other location exists in § 679.30(a) for

the board of directors information that

is more acceptable than the current

location.

Comment 7: NMFS should substitute

the word ‘‘approved’’ for ‘‘effective’’ in

the definition of a CDQ group because

the word ‘‘effective’’ is not clear.

Response: NMFS concurs that the

word ‘‘effective’’ is unclear and changes

the definition of a ‘‘CDQ group’’ in

§ 679.2 from ‘‘a qualified applicant with

an effective CDP’’ to ‘‘a qualified

applicant with an approved CDP.’’

Comment 8: NMFS should make the

information requirements for a proposed

CDP consistent with the State of

Alaska’s requirements.

Response: NMFS, as the Federal

agency responsible for implementing

the CDQ program, requires that the

information requested in § 670.30(a) be

included in the proposed CDPs. The

State of Alaska, as the initial recipient

of the proposed CDPs, may request the

CDQ groups to provide additional

information in the proposed CDPs, or

may request the CDQ groups to provide

the proposed CDP information in a

particular format, as long as the State

requirements do not conflict with the

Federal requirements.

Comment 9: The proposed CDQ

regulations require a transition plan that

includes a schedule for transition from

reliance on quota allocations to self

sufficiency in fisheries for each CDQ

project. A transition plan for each CDQ

project would be cumbersome and not

very meaningful. A better transition

plan would be one that estimates the

impact on all CDQ group activities and

the long-term revenue stream in the

event that CDQ allocations cease.

Response: NMFS concurs. The

regulations are changed at

§ 679.30(a)(6)(i) to define a transition

plan as an overall schedule for

transition from reliance on CDQ

allocations to self-sufficiency in

fisheries, based on the CDQ group’s

long-term revenue stream without

CDQs.

Comment 10: NMFS should eliminate

the requirement to revise the general

CDP budget to reflect the annual budget

reconciliation report (§ 679.30(g)(3)).

The obligation to prepare a final general

CDP budget, particularly since it will be

months after the year end, is

unnecessary for the full disclosure of

annual financial operations.

Response: NMFS concurs. The CDQ

regulations are changed at § 679.30(g)(3)

to remove the requirement that the

general CDP budget be revised to reflect

the annual budget reconciliation.

Comment 11: Section

679.30(g)(4)(iv)(B) is not clear about

whether halibut catcher vessels are

considered ‘‘CDQ partners.’’ If NMFS

considers that halibut catcher vessels

are CDQ partners, then a full substantial

amendment will be required to add or

remove a vessel from a CDP. NMFS

should make the CDQ regulations clear

that a halibut catcher boat can be added

to a CDP with a technical amendment.

Rseponse: NMFS does not have a

definition of ‘‘CDQ partner’’ in the CDQ

regulations. Vessels may be added or

removed from a CDP with a technical

amendment, except that a substantial

amendment must be used to add a

vessel to a CDP if the CDQ group is

proposing an alternative catch

estimation method under

§ 679.30(a)(5)(iii) (see further discussion

under Changes from the Proposed Rule,

item #8). However, if a CDQ group

wants to add a vessel from a company

that does not have a business

relationship with the CDQ group (a new

harvesting partner), the CDQ group may

want to draft and sign a contract with

the new harvesting partner to make

clear the responsibilities of each party
30384 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

during CDQ operations. Signing a new

contract with a new harvesting partner

requires a substantial amendment in

most cases. Also, some vessels under

the MS CDQ Program have equipment

and operational requirements that must

be met before they can be added to the

list of eligible CDQ vessels. The CDQ

group must ensure that any vessel that

it adds to its list of eligible CDP vessels

with a technical amendment has met the

equipment and operational

requirements of the CDQ regulations.

Comment 12: NMFS should require

the State of Alaska to establish a

separate panel or committee to review

CDPs and make objective decisions

regarding CDQ and PSQ allocations. An

independent panel would be better

suited to make good allocation decisions

without being influenced by political

pressures.

Response: The State is authorized to

make recommendations to NMFS

regarding the approval of proposed

CDPs and CDQ/PSQ allocations. NMFS

requires that the State hold public

hearings on the CDQ applications and

consult with the Council about its

recommendations. The public has the

opportunity to comment on the State’s

process and recommendations in an

open forum at both of these meetings.

NMFS reviews the State’s written

recommendations and the

administrative record from the public

hearings before making a final decision

to approve or disapprove the State’s

recommended CDQ allocations.

Therefore, at this time NMFS does not

believe there is a need for further

requirements about how the State makes

CDQ allocation decisions.

Comment 13: NMFS should change

the date for the transmittal of proposed

CDPs from the State to NMFS from

October 7 to October 15 to give the State

additional time if it is necessary to

revise CDPs after the September Council

meeting.

Response: NMFS concurs and revises

§ 679.30(d) to change the transmittal

date for proposed CDPs from October 7

to October 15.

Comment 14: The proposed

regulations would remove § 679.30(f) of

current CDQ regulations that provides

for the suspension or termination of a

CDP. NMFS should re-insert this

language. It is a necessary management

tool.

Response: The final rule includes a

portion of the language from § 679.30(f)

of the current CDQ regulations in the

final rule as § 679.30(h). Also, NMFS is

planning to promulgate additional

regulations clarifying the process for

suspending or terminating a CDP. Other

portions of the current regulations are

not included in the final rule because

civil procedure regulations at 15 CFR

part 904 already provide a system for

prosecuting violations of MS CDQ

regulations.

Comments on CDQ Allocations and

Transfers

Comment 15: NMFS should clarify

what activity is prohibited in the

proposed rule at § 679.7(d)(15), which

stated ‘‘for a catcher vessel, catch, retain

on board or deliver CDQ groundfish or

halibut together with non-CDQ

groundfish or halibut, except that IFQ

sablefish and halibut may be caught,

retained, or delivered together with

CDQ groundfish and halibut by vessels

using fixed gear.’’

Response: Section 679.7(d)(15) in the

proposed rule is now § 679.7(d)(13) in

the final rule. This section applies only

to catcher vessels participating in the

groundfish CDQ fisheries. Operators of

these catcher vessels are prohibited

from catching, retaining on board, or

delivering groundfish CDQ or halibut

CDQ together with non-CDQ groundfish,

with one exception: Catcher vessels

using fixed gear are allowed to catch,

retain on board, and deliver Individual

Fishing Quota Program (IFQ) sablefish

and IFQ halibut together with

groundfish CDQ and halibut CDQ. This

prohibition is necessary for catcher

vessels to account for all catch during a

CDQ fishing trip with CDQ, PSQ, or

IFQ. Failure to prohibit this activity

would allow catcher vessels fishing in

the CDQ fisheries to attribute some of

their catch against the moratorium

groundfish fishery allocations of total

allowable catch (TAC) amounts, which

would be contrary to the Council’s and

NMFS’ intent.

This prohibition can be stated more

clearly by using the definition of

moratorium groundfish species in

existing regulations. Therefore, the

prohibition is revised to read: ‘‘for the

operator of a catcher vessel, catch, retain

on board, or deliver groundfish CDQ

species together with moratorium

groundfish species.’’ NMFS is also

adding to this final rule a prohibition

against catcher/processors catching

groundfish CDQ species together with

moratorium groundfish species in the

same haul, set, or pot.

Comment 16: In § 679.7(d)(16) of the

proposed rule, NMFS proposed to

prohibit catcher/processors and

observed catcher vessels from (1)

combining catch from more than one

CDQ group in the same haul or set and

(2) combining CDQ and IFQ in the same

haul or set. NMFS received comments

opposed to this proposal by CDQ groups

that have purchased halibut IFQ to fish

together with their CDQ allocations. The

halibut IFQ would be used by CDQ

groups to retain halibut in their fixed

gear groundfish CDQ fisheries.

NMFS also received comments

opposed to the prohibition against

combining catch from more than one

CDQ group in a haul, set, or delivery

from CDQ groups. Commenters state

that this restriction would limit the CDQ

groups’ ability to fully harvest their

CDQ allocations and would create

difficulties in managing small CDQs.

Furthermore, NMFS currently allows

this practice in the existing CDQ

programs.

Response: Section 679.7(d)(16) of the

proposed rule is now § 679.7(d)(15) in

the final rule. NMFS has not changed

this section in the final rule in response

to these comments for the following

reasons:

Allowing catch from the same haul or

set to be split among two or more CDQ

groups would allow de facto transfers to

occur outside the established procedure

for State and NMFS review and

approval of transfers. For example, the

final rule requires that PSQ may be

transferred only in combination with

CDQ and only during the month of

January. However, if splitting hauls or

sets were allowed, one CDQ group could

claim the CDQ species in a haul or set

and another CDQ group could claim the

PSQ species. Although this would not

be an actual transfer of PSQ from one

group to another, it would allow a CDQ

group to catch CDQ even if it had no

PSQ remaining to support its groundfish

CDQ fisheries. NMFS believes that the

question of allowing split hauls or sets

should be more thoroughly analyzed

and considered by the Council before

making a change in the regulations.

NMFS also has declined to change the

final rule to allow vessel operators to

catch CDQ and IFQ species in the same

set because of the significant increase in

the complexity of the catch monitoring

and recordkeeping and reporting

requirements that would result. The

catch of IFQ species is monitored on the

basis of the vessel operator’s report of

retained catch weight made to NMFS

Enforcement. Estimates based on

observer data are not used for IFQ

accounting. However, the catch of CDQ

species will be determined based on the

CDQ observer’s estimate of total catch

weight and species composition for each

set. The vessel operator’s reports of

retained catch weight will not be used

for CDQ catch accounting. This

difference in the catch accounting

occurs because only retained catch

accrues against an IFQ account, while

all catch (retained and discarded)

accrues against a CDQ account. An
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30385

unacceptable level of complexity is

added if the two different catch

accounting methods have to be applied

to catch in the same set of gear.

Therefore, while vessel owners may

catch IFQ and CDQ together in the same

fishing trip, they will be prohibited from

catching IFQ and CDQ in the same set

of gear.

Comment 17: NMFS should continue

to require that herring prohibited

species bycatch be discarded from the

vessel and should not require that the

herring be retained until it is weighed

on a scale. The herring PSQ is not a

strict quota that will require trawl

vessels fishing for a CDQ group to stop

fishing altogether once it is attained.

Rather, once the herring PSQ is reached,

all trawl vessels fishing for the CDQ

group would be required to stop fishing

in the Herring Savings Areas (HSA)

during certain times of the year.

Therefore, the quota monitoring needs

of the CDQ program are not great

enough to warrant a change in retention

requirements for herring PSQ.

Implementation of this requirement

would also require the State of Alaska

to change regulations prohibiting the

retention of herring.

Response: NMFS recommended

retention of herring PSQ because

observers on catcher vessels using trawl

gear do not have the ability to estimate

the weight of herring bycatch discarded

at sea accurately enough for NMFS to

enforce closures of the HSA once the

herring PSQ is reached by a CDQ group.

In addition, all herring bycatch by

vessels using trawl gear is assumed to be

dead after it is brought on board the

vessel. However, NMFS recognizes that

a change in State regulations is needed

before NMFS could require retention

and delivery of herring to an onshore

plant and that this change is unlikely to

occur prior to implementation of the MS

CDQ Program. Therefore, NMFS has

determined that the only option is not

to allocate 7.5 percent of the herring

prohibited species catch (PSC) limit to

the MS CDQ fisheries, to accrue all

herring bycatch by vessels using trawl

gear in the MS CDQ fisheries to the

overall herring PSC limit, and to require

vessels fishing in MS CDQ fisheries to

comply with closure of the HSAs once

the herring PSC limit is reached. This

final rule amends § 679.21(1)(i) to

remove the herring PSQ reserve so that

a 7.5-percent allocation of the herring

PSC limit is not made to the CDQ

fisheries. Additionally, the requirement

for catcher vessels to retain herring PSQ

is removed from § 679.32(c) and the

prohibition against fishing in the HSAs

once the herring PSQ is attained is

removed. Finally, recordkeeping and

reporting requirements and catch

accounting requirements in §§ 679.5(n)

and 679.32 are amended to remove

references to the herring PSQ.

Incorporation of the herring PSC limit

into the MS CDQ fisheries may be

considered by the Council and NMFS in

a future rulemaking that would allow

more time to resolve the conflict

between State regulations and NMFS’

catch accounting requirements.

Comment 18: CDQ groups should be

restricted to pelagic trawl gear only in

the 1998 pollock fishery because

bycatch in the pollock CDQ fisheries

will not accrue against the CDQ and

PSQ allocations until 1999.

Response: NMFS agrees. The Council

made this recommendation to NMFS at

its meeting in April 1996, and the

provision was not included in the

proposed rule. NMFS adds the

requirement into the final rule under the

definition of pollock CDQ fishing in

§ 679.2 and in the prohibitions at

§ 679.7(d)(24).

Comment 19: If NMFS approves a

CDP with a fishing plan that specifies a

different procedure for determining

CDQ catches, the CDQ group should be

able to revert to NMFS’ standard

estimates by filing a letter of notification

to the State with a copy to NMFS if an

alternative, higher sampling frequency

plan approved by NMFS is attempted

but, for some reason, does not work out.

The vessel should be authorized to act

as the agent of the CDQ group so that

immediate action could take place.

Response: A CDQ group could

include this type of contingency plan in

its proposed fishing plan for NMFS

review. No change to the regulations

appears to be necessary at this time.

Comment 20: In the preamble to the

proposed rule, NMFS stated that a

species or species group would be

included in the CDQ program’s nonspecific reserve if the species was low

valued, no target fishery currently

existed, and a sufficient buffer existed

between the TAC and ABC (Acceptable

Biological Catch). Given the structure of

the overfishing definition, which sets

the squid overfishing limit (OFL) equal

to the average historical catch, an

adequate buffer does not exist; thus, this

species should not be part of the nonspecific reserve.

Response: The preamble of the

proposed rule incorrectly stated the

criteria for a species to be considered for

the CDQ non-specific reserve. The

criteria should have said ‘‘sufficient

buffer between the TAC and the

overfishing limit’’ rather than a

‘‘sufficient buffer between TAC and

ABC.’’ In the 1998 specifications,

neither squid nor the ‘‘other species’’

TAC category has a buffer between TAC

and ABC because TAC is set equal to

ABC. However, a buffer does exist

between the TAC and the OFL.

Comment 21: The prohibition against

exceeding a CDQ allocation is stricter

than the moratorium groundfish

fisheries and IFQ fisheries requirements.

The CDQ groups will always have to

undershoot their quotas and leave

substantial amounts of all species

unfished. The prohibition will probably

limit the CDQ longline cod fishery and

some of the trawl flatfish fisheries when

no biological or economic rationale

exists for doing so. Therefore, NMFS

should allow the CDQ participants to

discard a particular species once the

CDQ is reached rather than require that

no CDQ be exceeded. This would be

similar to the ‘‘PSC status’’ that is

allowed in the moratorium groundfish

fisheries whereby NMFS places

groundfish on PSC status once the TAC

is reached.

Response: NMFS disagrees. NMFS

approved a Council recommendation

that results in an allocation of 7.5

percent of the groundfish TACs (except

fixed gear sablefish) to the CDQ

program. Allowing the CDQ fisheries to

discard a particular species after its

CDQ is reached could cause the overall

CDQ program to exceed its 7.5-percent

allocation. This would violate NMFS

and Council intent for the CDQ

program. The Council confirmed this

intent at its April 1996 meeting. The

only exception proposed by NMFS and

accepted by the Council was the ‘‘CDQ

non-specific reserve.’’

Comment 22: The CDQ non-specific

reserve is inadequate. The squid bycatch

could limit the pollock CDQ fisheries,

and skate bycatch could limit the

longline cod CDQ fishery. The ‘‘other

species’’ TAC normally is not reached in

the open access fisheries because a large

percentage of the cod is taken with

trawls with a lower skate bycatch.

However, most cod CDQ will be taken

with longline in order to reduce halibut

bycatch mortality, resulting in more

skate bycatch. Two recommendations

were made. First, NMFS should not

prohibit CDQ groups from exceeding

CDQs for squid, arrowtooth flounder,

and ‘‘other species,’’ all of which are

bycatch species with no danger of

becoming overfished and with little or

no commercial value. Rather, once the

CDQ is reached, these species should go

on PSC status as they do in the open

access fisheries. Second, NMFS should

increase the percentage of the squid,

arrowtooth flounder, and ‘‘other

species’’ TACs apportioned from the

CDQ reserve to the CDQ non-specific

reserve from 15 percent to 50 percent.
30386 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

Response: As proposed, the CDQ nonspecific reserve provides a limited

ability for the CDQ fisheries to exceed

their 7.5-percent allocation of some

species groups. However, NMFS will

not increase the apportionment to the

CDQ non-specific reserve or allow CDQ

groups to exceed CDQs for the reasons

stated above in the response to

Comment 21.

Comment 23: CDQ groups should be

allowed an overage allowance for target

species that would come off the

following year’s quota as is allowed for

the IFQ program.

Response: NMFS did not include

overage or underage provisions for the

CDQ program because none were

recommended by the Council or

requested by the State of Alaska CDQ

program managers. In fact, yearly

overages are prohibited as explained in

the response to Comments 21 and 22.

Underages were not addressed but

should have been expected, given the

prohibition on overages.

Comment 24: NMFS should allow

CDQ groups to substitute halibut CDQ

for halibut PSQ. If CDQ groups achieve

bycatch savings of halibut PSQ, they

should be allowed to harvest the savings

as retainable halibut CDQ.

Response: NMFS disagrees.

Substitution of halibut CDQ and halibut

PSQ would be a significant change in

the CDQ program design that NMFS

would not make without a

recommendation to do so from the

Council after analysis and public

comment.

Comment 25: NMFS should exempt

unobserved halibut CDQ catcher vessels

from the requirement to retain and

weigh salmon and herring PSC and

groundfish bycatch except cod and

pollock, which must be retained under

Improved Retention/Improved

Utilization (IR/IU). The amounts

involved are trivial in comparison with

the groundfish fisheries overall, but the

retention requirement will create a

hardship for the small vessels.

Response: See response to Comment

2. NMFS will propose regulations for

the small vessel halibut CDQ fisheries in

a separate rulemaking.

Comment 26: The proposed rule states

that target fishery categories and gear

allocations will be dropped for halibut

PSQ but is silent on whether the target

fishery categories will be dropped for

crab PSQs. Will crab PSQ allocations

and use be the same as halibut PSQ?

Response: The target fishery

designations for allocation of prohibited

species bycatch in the moratorium

groundfish fisheries will not be used in

the CDQ fisheries. However, while the

CDQ groups are simply prohibited from

exceeding their halibut PSQ, the crab

PSQ will be managed with the same

time and area closures as the

moratorium groundfish fisheries.

Therefore, only the catch of crab in the

trawl fisheries will accrue to the CDQ

group’s crab PSQs. The CDQ groups will

be prohibited from using trawl gear to

harvest groundfish CDQ in (1) Zone 1

after the CDQ group’s red king crab PSQ

or C. bairdi Tanner crab PSQ in Zone 1

is attained, (2) Zone 2 after the CDQ

group’s PSQ for C. bairdi Tanner crab in

Zone 2 is attained, and (3) the C. opilio

Bycatch Limitation Zone (COBLZ) after

the CDQ group’s PSQ for C. opilio

Tanner crab PSQ is attained.

A prohibition against using trawl gear

in the COBLZ is added. The new C.

opilio bycatch limit and the COBLZ

were added to 50 CFR part 679 (62 FR

66829, December 22, 1997) after the

proposed rule for the MS CDQ Program

was published.

Comment 27: The proposed

constraints on transfer of PSQ and CDQ

between CDQ groups are overly

restrictive and will prevent the

attainment of optimum yield (OY)

because a group must cease fishing once

any quota is reached and some of the

quotas will be very small. CDQ groups

need a more timely process for

transferring CDQ in season.

In addition to several general

comments suggesting more flexible

transfer provisions, NMFS received the

following specific recommendations:

1. NMFS should allow transfers of

more than 10 percent of a group’s CDQ

and transfers of PSQ with a technical

amendment rather than a substantial

amendment. Requiring these transfers to

undergo the substantial amendment

process could result in ‘‘considerable

quantities of fish left on the table’’ each

year;

2. NMFS should allow transfers of 25

mt of CDQ, the equivalent percentage of

CDQ allocation, or 10 percent of the

CDQ allocation, whichever is greater,

with a technical amendment;

3. NMFS should allow transfers of up

to 2 percent of a group’s PSQ by PSQ

species without a concurrent transfer of

CDQ and at any time during the year;

4. NMFS should allow submission of

amendments to transfer PSQ allocations

at any time during the year, and, upon

approval, make such transfers effective

in the following calendar year.

Response: NMFS included the

transfer provisions and restrictions

recommended by the Council and

supported by the State of Alaska, which

makes the original recommendations on

CDQ allocations and reviews and

approves all amendments to the CDPs

before they are sent to NMFS for review

and approval. The Council and the State

believed that transfers of CDQ or PSQ

allocations, transfers of more than 10

percent of a CDQ group’s CDQ for any

species or species group, or the transfer

of PSQ should be made by substantial

amendment in order to provide a more

comprehensive and extended review of

the proposed transfers. As a result, no

significant change is made to the CDQ

or PSQ transfer provisions set out in the

proposed rule (see response to Comment

29).

Comment 28: NMFS received two

recommendations on allowing transfers

of CDQ and PSQ after an overage had

occurred. The first recommendation was

a general request to allow transfers after

fish have been caught to cover overages.

The second recommendation was to

allow up to 2 percent of CDQs or PSQs

to be transferred after fish have been

harvested in the event that one group

has a small overage and can transfer it

to another group with an equivalent

amount of unharvested CDQ. The

rationale for the second

recommendation was that it would limit

the number of enforcement actions

necessary for small overages while

allowing a higher percentage of the

quotas to be taken.

Response: NMFS disagrees and will

make no provision for transfers to cover

overages of CDQ and PSQ after that

catch has occurred because this

provision would undermine NMFS’

ability to monitor and enforce

requirements that CDQ groups not

exceed their quotas.

Comment 29: NMFS should require

transfers of CDQ allocations, PSQ

allocations, CDQ, and PSQ to be in

whole integer percentages or amounts to

simplify the transfer process.

Response: NMFS agrees and has

revised § 679.30(e) accordingly.

Comments on CDQ Recordkeeping and

Reporting Requirements

Comment 30: In § 679.5(m) in the

proposed rule, NMFS proposed

requiring a CDQ representative to

submit a check-in/check-out report for

each vessel harvesting groundfish and

halibut CDQ. NMFS received the

following comments about the proposed

requirement as it would have applied to

catcher/processors and motherships.

First, NMFS should allow catcher/

processors and motherships to continue

to submit the existing check-in and

check-out reports required at § 679.5(h)

because the proposed CDQ check-in/

check-out reports duplicate this

requirement. Second, NMFS should

require that the check-in/check-out

reports be submitted by the vessel

operator to NMFS directly, rather than
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30387

to the CDQ representative. Submission

directly to NMFS would save time and

avoid the confusion that may arise from

requiring the CDQ representative to be

the intermediary between the vessels

and NMFS. Third, NMFS should not

require that the check-out report be

received by NMFS before the vessel can

deploy gear in a non-CDQ fishery

because the time period between CDQ

and non-CDQ fishing is less than an

hour in some cases and because vessel

operators have no way to determine

whether NMFS has received the

notification. Fourth, if NMFS continues

to require that the check-out report be

received before the vessel deploys gear

in a non-CDQ fishery, then NMFS

should consider allowing the vessel’s

fax confirmation report to verify receipt

by NMFS or allow the submission of the

check-out report by electronic mail.

Response: In the final rule, NMFS

removed the requirement in §§ 679.5(m)

and 679.32(e) of the proposed rule for

CDQ check-in/check-out reports for

catcher/processors, motherships, and

catcher vessels. NMFS determined that

the information about eligible vessels in

the CDPs, observer coverage, and the

existing check-in/check-out reports for

processors is sufficient to monitor CDQ

fishing activity.

Catcher/processors and motherships

participating in the CDQ fisheries will

continue to be required to submit the

check-in/check-out report at § 679.5(h).

NMFS revised the wording of § 679.5(h)

to refer to fishing for CDQ species,

rather than for each CDQ allocation. The

operator of the catcher/processor or

mothership is required to submit a

check-in report prior to fishing for CDQ

species and a check-out report within 24

hours after fishing for CDQ species has

ceased. Vessels or processors must file

separate check-in/check-out reports for

each CDQ group number.

In the final rule, check-in/check-out

reports are not required for catcher

vessels although they may be

considered in the future if measures in

this final rule are not adequate.

Comment 31: The requirement for

check-in/check-out reports for small

catcher vessels in the halibut CDQ

fishery is too burdensome because it

would be too difficult for the CDQ

representative to keep track of the many

18–32 ft (5.49–9.75 m) LOA vessels in

short openings spread out over 14

communities and 25,000 square miles

(64,750 square kilometers). This

requirement would generate much

paperwork that would not provide

information worth the effort of the

vessel owners, the CDQ representative,

or NMFS. Two recommendations were

received on the check-in/check-out

requirement for the halibut CDQ

fisheries. First, NMFS could require that

the CDQ representative file one checkin report for all vessels at the beginning

of the season and one check-out report

at the end of the season for all vessels.

Second, NMFS could require that checkin/check-out reports be submitted only

by vessels over a minimum size of 30 ft

(9.14 m).

Response: The final rule has been

changed to remove the requirement for

CDQ check-in/check-out reports. See

response to Comment 30.

Comment 32: The proposed

requirement to submit a CDQ catch

report for each vessel each week that

CDQ fishing occurs is excessive for

small vessels fishing for halibut CDQ.

NMFS might consider combining skiffs

under a CDQ permit into a CDQ group

fleet catch report.

Response: See response to Comment

2. In 1998, vessels participating in the

halibut CDQ fisheries will continue to

submit reports to NMFS Enforcement

under the IFQ program. CDQ

representatives are not required to

submit information about halibut CDQ

reported under the IFQ program

reporting requirements on the CDQ

catch report in 1998.

Comment 33: NMFS should use the

shoreside processor’s weekly

production report (WPR) as a weekly

report of CDQ catch.

Response: NMFS requires information

about the weight and numbers of all

CDQ and PSQ species landed by each

vessel fishing under a CDP. The

shoreside processor’s WPR provides the

total CDQ and PSQ landed by all vessels

fishing under a CDP each week, but it

does not provide detail for the

individual vessel’s landed catch. In

addition, the CDQ catch report is

required to be submitted by the CDQ

representative on behalf of the CDQ

group that has received the groundfish

CDQ allocation. The report must be

signed and submitted by the CDQ

representative to verify to NMFS that

the CDQ group acknowledges the CDQ

and PSQ catch made by vessels and

processors under its CDP.

Comment 34: In § 679.32 of the

proposed rule, NMFS proposed to use

the Alaska Department of Fish and

Game (ADF&G) fish ticket as a record of

the catch weight and numbers for CDQ

and PSQ landed at shoreside processors.

However, ADF&G fish tickets are not

designed to report halibut PSQ

discarded at sea.

Response: The final rule contains a

change in this requirement. Rather than

using an ADF&G fish ticket, each

shoreside processor must submit a CDQ

delivery report for each delivery of CDQ

and PSQ. NMFS determined that

ADF&G fish tickets would not provide

adequate landings records for several

reasons. First, ADF&G fish tickets are

used primarily to report the weight of

fish purchased by the processor and are

less reliable for documenting the

weights of fish that are delivered but not

purchased either due to economic

reasons or for being prohibited species.

Second, ADF&G fish tickets are not

available to NMFS soon enough to be

used to monitor landings in-season.

Finally, NMFS requires information

about each CDQ delivery to link with

the observer report from the same

delivery so that information about at-sea

discards of CDQ and PSQ can be quickly

and accurately combined with delivery

information from the processor.

As a result of these comments, the

following changes have been made in

this final rule:

1. The requirements for the CDQ

delivery report are added to

§ 679.5(n)(1). A CDQ delivery report is

required to be submitted by shoreside

processors for each groundfish CDQ

delivery. The processor must include

the vessel’s CDQ delivery number on

the CDQ delivery report.

2. In § 679.32(c), the ADF&G fish

ticket is removed as one of NMFS’

standard sources of data for deliveries to

shoreside processors.

Comment 35: If CDQ groups are

required to report information about

vessels fishing under their CDPs, NMFS

should extend the reporting deadline

from 24 to 48 hours after the vessel

reporting deadline to allow time for

information to get from the vessel to the

CDQ group and to NMFS.

Response: NMFS changed the

deadline for receipt of the CDQ catch

report § 679.5(n)(2) to ‘‘within 7 days of

the date CDQ catch was delivered by a

catcher vessel to a shoreside processor,

buying station, or mothership or within

7 days of the date gear used to catch

CDQ was retrieved for catcher/

processors.’’ This change should allow

the CDQ groups sufficient time to get

information from the processor or vessel

reports if it is needed, although NMFS

expects that most data used by the CDQ

representative will come from observer

reports rather than from vessel or

processor reports submitted to NMFS.

Comment 36: NMFS should require

that the catch of halibut and sablefish

CDQ be reported in pounds, rather than

to the nearest 0.001 mt.

Response: Currently, halibut and

sablefish CDQ catch reported to NMFS

Enforcement under the IFQ regulations

may be reported in pounds or kilograms

as required for the IFQ landings report.

Reporting requirements for halibut CDQ
30388 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

after 1998 will be addressed in a future

rulemaking. See response to Comment

2.

Any CDQ catch reported on the CDQ

delivery report or CDQ catch report at

§ 679.5(n) must be reported in metric

tons to the nearest 0.001 mt, as is

required for weekly production reports.

Allowing CDQ representatives to chose

among options for the units of

measurement that may be used would

increase reporting and data entry errors

and complicate the CDQ information

system.

Comment 37: NMFS should provide

an alternative to supplying vessel name

on CDQ reports because many skiffs do

not have names.

Response: The requirement to submit

the vessel name on the CDQ reports is

changed in the final rule to read ‘‘vessel

name, writing ‘unnamed’ if the vessel

has no name.’’

Comments on the CDQ Observer,

Observer Duties, and Observer Coverage

Requirements

Comment 38: NMFS should not create

a special category of observer for the MS

CDQ fisheries. NMFS has not

demonstrated that successful data

collection on MS CDQ vessels will

require specialized observers and

additional observer training.

Specifically, it is unclear that the needs

of the MS CDQ Program will be different

from the needs of the current pollock

CDQ fishery, for which specialized

training is not required. NMFS has rated

the observers in the pollock CDQ

fisheries as acceptable or better,

demonstrating that these observers have

been capable of meeting the demands of

the pollock CDQ fisheries. The MS CDQ

fisheries do not require any better or

more experienced observers than those

required by the open-access fisheries.

The responsibilities of MS CDQ

observing are not significantly different

from those for the other fisheries. On

vessels with two CDQ observers, each

observer would have less work to do. In

addition, implementation of electronic

reporting of observer data and scales to

weigh catch on some processor vessels

will reduce observer workload. Rather

than requiring that vessels carry a

specially trained, designated CDQ

observer, NMFS should revise current

observer training and briefing to prepare

all observers for the requirements of the

multispecies CDQ fisheries.

Response: NMFS disagrees. The MS

CDQ Program does require specialized

observers and additional observer

training because the demands of the MS

CDQ Program will be very different from

the current pollock CDQ fishery. For

many MS CDQ vessels, estimates based

on observer data will be used as the

primary source of information about the

catch of all species, including

prohibited species. In order to fulfill the

responsibility of determining CDQ and

PSQ catch, the MS CDQ observer must

have both prior experience as an

observer and training specific to the

CDQ program. Additionally, the

equipment requirements and

recordkeeping and reporting

requirements, with which the MS CDQ

observer must be familiar, will be

different in the MS CDQ fisheries from

the existing requirements for the CDQ

and IFQ fisheries and for the

moratorium groundfish fisheries.

Comment 39: NMFS has inadequate

infrastructure to provide the support

CDQ observers will need. Observers in

the CDQ fisheries will have an increased

compliance monitoring role, which will

lead to increased pressure from vessel

operators and processors. Observers

need to know that they will be

supported by NMFS if they are being

pressured in any way. The NMFS

Observer Program and Enforcement

Office will need additional staff to

address problems that will arise with

the multi-species CDQ program. How

will NMFS address these additional

needs?

Response: NMFS has received

approval for additional staff and

funding for the North Pacific

Groundfish Observer Program to

implement the MS CDQ Program and to

support observers in the demanding role

of a CDQ observer. In addition,

equipment requirements such as scales

to weigh total catch and observer

sampling stations will provide

additional tools to assist CDQ observers

in estimating CDQ and PSQ catch.

Comment 40: Observers could suffer

financially under the proposal to create

a special category of observer for the

CDQ fisheries. Contractors may not

deploy persons qualified as CDQ

observers on non-CDQ trips in order to

have them available if a CDQ observer

is needed. As a result, lead CDQ

observers may be able to work only 2 to

3 weeks out of each season.

Response: NMFS disagrees.

Certification as a CDQ observer will

increase the types of observer

employment that an individual is

qualified for and should, therefore,

improve his or her financial situation.

Comment 41: The proposal to create

a special category of observers for the

CDQ fisheries will increase costs to

observer contractors and to the fishing

industry. Observer contractors will have

less flexibility when deploying

observers because fewer observers will

be qualified as CDQ and lead CDQ

observers. The special training for CDQ

observers will increase training costs,

which will be passed on to the fishing

industry. Observer travel costs will

increase. Vessels face possible down

time if the CDQ observers are not

immediately available.

Response: NMFS agrees that

requirements for CDQ observers may

increase costs to participants in the CDQ

fisheries and may reduce the flexibility

of observer contractors. However, it is

anticipated that sufficient numbers of

CDQ observers will be available and

vessels should not experience a delay

due to a lack of CDQ observers (see

responses to Comments 44 and 45.) The

CDQ observer is necessary to implement

the MS CDQ Program.

Comment 42: The proposal to create

a special category of observers for the

CDQ fisheries will negatively impact the

overall quality of data collected for

other groundfish fisheries, because

experienced observers will be

concentrated in CDQ fisheries.

Response: NMFS disagrees that

requirements for the CDQ observers will

reduce the quality of observers or

observer data collected in the other

groundfish fisheries. Many factors

contribute to the overall quality of

observer data, including certification

requirements, training, compensation,

working conditions, and NMFS support.

NMFS is pursuing improvements to

some of these factors through separate

development of policy and rulemaking.

The requirement for CDQ observers

alone is not expected to have a

significant negative effect on the

number or quality of observers available

for non-CDQ fisheries. In addition, CDQ

observers will not be required to work

in CDQ fisheries all the time and will

continue to be available for the nonCDQ fisheries.

Comment 43: NMFS requires at least

one lead CDQ observer on all vessels.

What is the difference in responsibilities

between the CDQ observer and the lead

CDQ observer on a vessel with two

observers?

Response: The sampling duties will

be similar between the lead CDQ

observer and other CDQ observers. Each

will be expected to work a 12-hour shift.

However, the lead observer will be the

liaison person between the vessel and

NMFS and will be responsible for

determining whether any impediments

to sampling exist and for resolving

problems with sampling or data

collection. The lead CDQ observer will

be responsible for ensuring complete

and correct data and will carry this

responsibility through the debriefing

process.
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30389

Comment 44: If qualified CDQ

observers are not available, NMFS

should waive the requirement for two

CDQ observers or should reduce the

requirements for CDQ observers.

Response: NMFS disagrees. The

requirements for a CDQ observer are

based on the anticipated needs of the

CDQ program. NMFS believes that a

sufficient number of observers meet the

requirements for certification as CDQ

observers (see response to Comment 45).

Therefore, waivers or changes to the

requirements for CDQ observers should

not be necessary.

Comment 45: NMFS received the

following comments about the proposed

experience requirements for CDQ

observers and lead CDQ observers:

1. NMFS proposed that one of the

requirements for a CDQ observer be that

he or she must have completed at least

60 days of observer data collection on a

vessel using the same gear type as the

CDQ vessel on which he or she will be

deployed. NMFS should require instead

that the CDQ observer have experience

in the type of sampling and the type of

fishery he or she will be observing in

the CDQ fisheries.

2. NMFS proposed that the lead CDQ

observer be required to complete at least

20 days of observer data collection on a

vessel participating in a CDQ fishery in

addition to the other requirements for a

CDQ observer. The experience

requirement for a lead CDQ observer

should be a minimum of one full

contract, rather than 20 days.

3. If all pot catcher vessels are

required to have one CDQ observer who

must be a lead CDQ observer, how do

non-lead CDQ observers ever get the

opportunity to qualify as lead observers

for pot catcher vessels?

4. Do enough people exist with the

qualifications required for CDQ observer

to supply the number of CDQ and lead

CDQ observers that will be necessary?

Response: After examining the work

history for current observers, NMFS

decided to reduce the experience

requirements necessary for CDQ

observers in order to increase the

number of current observers who would

be eligible to apply for certification as

a CDQ observer. Section

679.50(h)(1)(i)(D) and (E) were changed

as follows:

1. The CDQ observer is required to

have 60 days of observer data collection

experience, in general, rather than 60

days of experience in the same gear type

as the CDQ vessel on which he or she

will be deployed; and

2. The requirement for sampling

experience on a vessel with the same

gear type as the CDQ vessel on which

the observer will be deployed now

applies only to the lead CDQ observer.

3. The lead CDQ observer is no longer

required to have 20 days of observer

data collection on a vessel participating

in a CDQ fishery.

The following table summarizes the

experience requirements for CDQ

observers (this does not include rating,

training, or other general performance

requirements):

The following table summarizes the

experience requirements for CDQ

observers (this does not include rating,

training, or other general performance

requirements):

CDQ observer classification Experience requirements

All CDQ observers ............................................................. 60 days observer data collection.

Additional requirements for ‘‘Lead’’ CDQ Observers:

Lead on catcher/processor (c/p) using trawl gear or a

mothership.

2 cruises and sampled at least 100 hauls on a c/p using trawl gear or a mothership.

Lead on catcher vessel using trawl gear .................... 2 cruises and sampled at least 50 hauls on a catcher vessel using trawl gear.

Lead on vessel using nontrawl gear ........................... 2 cruises of at least 10 days each and sampled at least 60 sets on a vessel using

nontrawl gear.

Lead in shoreside plant ............................................... Observed at least 30 days in a shoreside processing plant.

In response to part 3 of this comment,

under the proposed rule, a catcher

vessel using pot gear would have been

required to have a lead CDQ observer.

In order to qualify as a lead CDQ

observer for this vessel under the

proposed rule, a person would have

been required to have the following

observer experience: (1) At least 60 days

of observer data collection on a vessel

using pot gear and (2) at least 20 days

of experience on a vessel in a CDQ

fishery. The commenter is expressing

concern about how a non-lead CDQ

observer (a person who had met the 60

days of pot gear experience) would be

able to obtain the experience necessary

to become a lead CDQ observer (a

person with 20 days experience in the

CDQ fisheries).

Under the proposed rule the

requirement for 20 days experience in a

CDQ fishery could have been obtained

on a vessel using any gear type, as long

as it was CDQ fishing. Under the final

rule, these experience requirements are

more flexible. The pot catcher vessel

still is required to have a lead CDQ

observer, but the experience

requirement has changed to be as

follows: (1) At least 60 days of observer

data collection (no specific gear

requirement for this experience), and (2)

two cruises of at least 10 days each on

a vessel using nontrawl gear in which

the observer sampled at least 30 sets per

cruise. Non-lead CDQ observers must

get their 60 days of observer data

collection experience in the non-CDQ

groundfish fisheries. Lead CDQ

observers may obtain their experience

with specific gear types in either the

CDQ or non-CDQ fisheries. Observer

experience on vessels using longline,

pot, or jig gear counts toward the

nontrawl gear experience requirement.

Comment 46: NMFS proposed that

one of the requirements for a CDQ

observer be that he or she have received

‘‘the rating of 1 for ‘‘exceptional’’ or 2

for ‘‘meets expectations’’ by NMFS for

his or her most recent deployment.’’ The

NMFS rating system is 2 for

‘‘exceptional’’ and 1 for ‘‘meets

expectations.’’

Response: The proposed rule was

incorrect, and § 679.50(h)(1)(i)(D)(2) has

been corrected to state that the CDQ

observer must have received the rating

of 1 for ‘‘meets expectations’’ or 2 for

‘‘exceptional’’ by NMFS for the most

recent deployment. This requirement

provides that only observers in good

standing are eligible for certification as

CDQ observers, which are the majority

of observers deployed over the last 3

years. Those observers who would be

ineligible as CDQ observers are those

either under suspension pending review

for decertification or in probationary

status.

Comment 47: The NMFS rating

system for observers does not

appropriately indicate whether a person

will be a competent CDQ observer.

Unless the rating and evaluation system

is drastically revised, it should not be

used as an employment indicator for the

CDQ program.

Response: NMFS believes that using

the observer evaluation system is

appropriate because it is only one

component of determining whether an
30390 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

observer will be a competent CDQ

observer. The rating will be used to

determine whether an observer meets

the minimum qualifications for a CDQ

observer. However, evaluation of

competency will occur primarily during

training and through continued

performance evaluations.

Comment 48: In § 679.50(c)(4) of the

proposed rule, NMFS proposed that no

CDQ observer could be required to be on

duty for more than 12 hours in a 24-

hour period, to sample for more than 9

hours in a 24-hour period, or to sample

more than three hauls in a 24-hour

period on a vessel using trawl gear or a

processor taking deliveries from vessels

using trawl gear.

NMFS received several comments

opposed to the proposed requirement

that all hauls be sampled by an observer

for species composition and that each

observer be required to sample no more

than three hauls each 24-hour period.

This proposed requirement would limit

trawl catcher/processors to six hauls per

day. Most comments opposed this

proposal because operators of catcher/

processors want to make small hauls or

‘‘test’’ hauls to check the species

composition of fish available for harvest

in a particular area. The commenters

stated that this practice allows them to

minimize the bycatch and discard of

undesired or prohibited species.

Therefore, the limit of six hauls per day

will likely increase bycatch and

discards and increase the mortality rate

of discarded catch. In addition, NMFS

received comments that the fish quality

declines when fish are harvested in

large hauls or hauls towed for a long

time. Catcher/processors that head and

gut their product currently aim for hauls

that average 10 mt and make between 8

and 10 hauls per day. In order for these

vessels to continue both to take small

test hauls and to maintain production

levels while complying with a six hauls

per day limit, vessels would be required

to take some hauls as large as 30 mt to

50 mt.

In addition to the general

recommendation that NMFS remove the

limitation on the number of hauls that

could be sampled, two other suggestions

were made. First, NMFS should work

with each vessel individually to develop

a catch accounting plan through the

CDQ permit process. Second, NMFS

should establish a threshold for the

number or percentage of hauls that must

be observed.

Response: NMFS agrees that the

limitation on the number of hauls that

can be sampled by an observer is not

sufficiently flexible for the variety of

fishing situations that may be

experienced on all trawl catcher/

processors. Therefore, in the final rule,

the limitation that an observer may

sample only three hauls per shift has

been removed. However, the

requirement that all hauls or sets on

catcher/processors must be sampled by

an observer remains, as do the

limitations on the number of hours that

the CDQ observer is required to work

each day.

A CDQ group will be required in its

CDPs to demonstrate that vessels fishing

under the CDPs have sufficient observer

coverage to sample each haul or set. The

final rule requires additional

information to be submitted with the

fishing plan in the CDP to provide

NMFS with information to evaluate

whether the requirement to sample each

haul or set on each eligible vessel can

be met with the minimum number of

CDQ observers. The additional

information that must be submitted

includes (1) the number of CDQ

observers that will be aboard the vessel;

(2) the average and maximum number of

hauls, sets, or pots that will be retrieved

each day; (3) the average and maximum

estimated total catch weight for each

haul for vessels using trawl gear; (4) the

time necessary to process the average

and maximum haul size for vessels

using trawl gear; and (5) the average

number of hooks in each set and

estimated time it will take to retrieve

each set for vessels using hook-and-line

gear.

Comment 49: NMFS’ proposal to limit

observers to being on duty for 12 hours

per day and sampling no more than 9

hours per day does not give the observer

credit for the amount of work they have

already demonstrated they can do.

Response: NMFS recognizes that

many observers work more than the

limitations proposed for the MS CDQ

Program. However, the need to sample

each haul or set on catcher/processors

requires a limit on the ability of the

vessel to make sampling demands on

observers.

Comment 50: Has NMFS determined

the average number of hauls in a 24-

hour period expected in each CDQ

fishery? Does NMFS have any

assessment of how this average may

vary with vessel size, if it varies at all?

Response: NMFS has not performed

this type of analysis. Our

recommendations for the number of

hauls that could be sampled by an

observer in a 12-hour shift were based

on NMFS staff estimates of the average

observer workload requirements.

Comment 51: Will the number of

unobserved hauls increase if NMFS

limits the number of observed hauls to

six per day?

Response: The final rule does not

include the limit on the number of hauls

that may be observed (see response to

Comment 48). However, § 679.32(d)

does require that all hauls and sets on

observed vessels be sampled for species

composition.

Comment 52: NMFS should require

that one haul or set per observer’s shift

should be a partial-haul sample for

prohibited species.

Response: NMFS will request that

CDQ observers take as large a sample as

possible from each haul while also

ensuring that he or she samples each

haul and set during his or her shift.

Equipment requirements such as the

scale to weigh total catch and the

observer sampling station should allow

the observers to take larger samples.

However, NMFS will not place any

additional specific requirements about

the size or method of sampling in

regulation.

Comment 53: NMFS should allow

sorting by the crew with monitoring by

the observer on catcher/processors to

increase sample sizes and better provide

for enumeration of all prohibited

species, rather than depending on

extrapolation from a limited number of

relatively small basket samples.

Response: Current regulations at

§ 679.50(f)(1)(viii) require that the vessel

crew assist the observer in sampling

when requested to do so. NMFS also

will review any proposals in the CDP

that would provide for assistance from

the crew to produce larger sample sizes.

NMFS may approve CDP proposals for

the vessel crew to perform sampling,

sorting, and species identification with

appropriate observer monitoring of the

process to provide independent

verification of catch. Also see the

response to Comment 52.

Comment 54: In § 679.32(d)(4)(iv) of

the proposed rule, NMFS proposed that

‘‘each CDQ set or pot must be sampled

by a CDQ observer for species

composition and average weight.’’ It is

not possible to sample each and every

pot.

Response: NMFS agrees. In the final

rule, the requirement to sample each pot

is removed. The observer will be

requested to sample as many pots in the

set as possible to estimate species

composition.

Comment 55: NMFS should allow the

use of grid sorting to reduce the

mortality of halibut bycatch in the CDQ

fisheries provided that International

Pacific Halibut Commission and

observer program requirements are met.

Response: Grid sorting has been

discussed by the Council as an

alternative to reduce the mortality of

halibut bycatch. If NMFS implements
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30391

regulations allowing grid sorting in the

future, these regulations would likely

apply to all groundfish fisheries,

including the CDQ fisheries. Until then,

pre-sorting of halibut bycatch by the

crew is prohibited.

Comment 56: NMFS should establish

a provision to review the effects of the

CDQ observer requirements on the

quantity and quality of observer data in

the groundfish and halibut CDQ

fisheries.

Response: NMFS will evaluate the

results of all requirements for the CDQ

program, including the requirement for

CDQ observers. However, it may be

difficult to perform the specific

evaluation requested because of the

many other factors that affect the

quantity and quality of observer data

and the priority of this type of

evaluation relative to other

responsibilities of NMFS staff.

Comment 57: In the event that an

observer’s error is found during

debriefing results in a significant

recalculation of harvest, NMFS should

not penalize vessel operators or CDQ

groups that have relied on the observer

data in good faith.

Response: NMFS will make every

effort to minimize observer errors and to

identify and correct them as soon as

possible. If the error results in

calculations that reduce the estimate of

CDQ catch, that amount of fish, i.e., the

difference between the estimate of

caught fish and the CDQ, will then be

available for harvest by the CDQ group.

If the error results in calculations that

increase the estimate of CDQ catch that

then results in a CDQ overage, NMFS

will consider all of the reasons for the

overage in determining whether to

pursue enforcement action against the

CDQ group.

Comment 58: The catch accounting

and monitoring system proposed for the

MS CDQ Program is also being

considered for use in other fisheries and

FMPs in the future. In the final rule,

NMFS should discuss the anticipated

trade-offs and problems this proposal

may create.

Response: The catch accounting

system implemented for the MS CDQ

Program is not necessarily the system

that would be used for other individual

vessel monitoring programs. The role of

the State of Alaska, as a co-manager of

the CDQ fisheries, and the requirement

that CDQ groups apply for CDQ

allocations every 3 years are among the

important features that distinguish the

MS CDQ Program from other proposed

individual vessel monitoring programs.

The catch monitoring and enforcement

systems for other fishery management

programs will be developed based on

the needs and characteristics of those

programs and participants. NMFS

anticipates that experience with the MS

CDQ Program catch monitoring and

enforcement will provide valuable

information about whether the catch

monitoring program implemented for

the groundfish CDQ fisheries should be

applied to other programs.

Comment 59: NMFS should clarify in

§ 679.32(f)(4) that catcher vessels equal

to or greater than 60 ft (18.29 m) LOA

that deliver unsorted codends to

processor vessels are not required to

carry an observer during their CDQ

fisheries.

Response: NMFS revised paragraphs

(c), (d), and (f) in § 679.32 to include

catcher vessels delivering unsorted

codends as unobserved vessels.

Comment 60: Processors taking

deliveries of Pacific cod or rockfish

delivered with halibut CDQ should be

required to comply with NMFS’

requirements for a Federal processor

permit and NMFS’ observer coverage.

These processors should not be exempt

from this requirement under the MS

CDQ Program.

Response: Current regulations at

§ 679.4(f) require all shoreside

processors that take deliveries of

groundfish harvested in the EEZ of the

GOA or BSAI or deliveries from vessels

with Federal fisheries permits to obtain

a Federal processor permit. Therefore,

shoreside processors receiving

groundfish harvested in halibut IFQ or

CDQ fisheries by vessels that do not

have Federal fisheries permits and have

fished only in Alaska State waters

would not be required to have a Federal

processor permit. NMFS observer

coverage requirements for the general

groundfish fisheries apply only to

shoreside processors with a Federal

processor permit. No changes to these

regulations are made in this final rule.

Comment 61: Shoreside processors

processing only halibut should be

exempt from observer coverage

requirements as is the current practice.

Many of the halibut processors are very

small operations, and the imposition of

additional costs will have a large impact

on the ability of these facilities to

operate. There have been no reported

problems with the accounting of halibut

CDQ. It is unlikely that there will be

enough work to keep the observers busy.

Response: This final rule contains no

requirements for observer coverage for

shoreside processors or registered

buyers taking deliveries of only halibut.

As stated in the response to Comment

2, NMFS will consider management

measures for the halibut CDQ fishery in

1999 and beyond in a separate

rulemaking.

Comment 62: Shoreplants processing

less groundfish than a specified

minimum should be exempt from CDQ

observer coverage requirements as is

done for the moratorium groundfish

fisheries.

Response: NMFS disagrees. All

deliveries from vessels fishing for

groundfish CDQ must be observed by a

lead CDQ observer in the shoreplant

regardless of the observer coverage on

the vessel. As stated in the response to

Comment 2, NMFS will consider

management measures for the halibut

CDQ fishery in 1999 and beyond in a

separate rulemaking.

Comment 63: NMFS should require

two observers in shoreside plants for

observer coverage around the clock, and

those observers should have the same

responsibility as observers at sea, i.e.,

full sampling responsibilities, and not

simply a monitoring function.

Response: NMFS disagrees. No

change is made in the final rule. The

CDQ observer in the shoreplant will be

required to monitor the sorting and

weighing of all CDQ and PSQ species to

verify that accurate delivery weights are

reported on the CDQ delivery report.

Comment 64: In § 679.50(c)(4)(i),

NMFS proposed to require that a

mothership or catcher/processor of any

length must have at least two CDQ

observers, at least one of whom must be

certified as a lead CDQ observer. This is

a one-size-fits-all rule that fails to take

into account the differences between

vessels and gear type. On certain size

vessels, it will not be possible to have

two observers, because there is

insufficient room. One result of this

regulation is to limit the size and type

of catcher/processors CDQ groups can

use. This may result in forcing CDQ

groups to cease using longline catcher/

processors for their Aleutian Islands

sablefish CDQ, since most of those

vessels cannot carry two observers. The

additional cost is an unnecessary

burden on longline catcher/processors.

These vessels harvest fish one at a time,

which is very different from the large

tows associated with trawl catcher/

processors.

The following specific

recommendations were made:

1. NMFS should require that longline

catcher/processors less than 125 ft

(38.10 m) LOA carry only one CDQ

observer and allow the Regional

Administrator (RA) to require a second

observer at his or her discretion.

2. NMFS should require that longline

catcher/processors of any size carry only

one CDQ observer and allow the RA to

require a second observer at his or her

discretion.
30392 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

Response: NMFS agrees that, under

some circumstances, two observers may

not be necessary on catcher/processors

using nontrawl gear. Therefore, NMFS

made the following changes in the final

rule.

1. Section 679.50(c)(4) was changed to

require two CDQ observers on catcher/

processors of any length using hookand-line gear, unless NMFS approves a

CDP authorizing the vessel to carry only

one CDQ observer, who must be

certified as a lead CDQ observer. A CDP

authorizing the vessel to carry only one

CDQ observer will be approved by

NMFS if the CDQ group supplies

logbook or observer data for that vessel

(from CDQ or non-CDQ fisheries for the

same species, gear, and areas) that

demonstrate that one CDQ observer can

sample each set for species composition

in one 12-hour shift per fishing day.

NMFS will not approve a CDP that

would require observers to divide his or

her 12-hour shifts into shifts of less than

6 hours, because this would not allow

the observer sufficient time to sleep.

2. Section 679.50(c)(4) was changed to

require catcher/processors of any length

using pot gear to have one lead CDQ

observer, rather than two CDQ

observers.

Comment 65: Longline catcher vessels

less than 125 ft (38.10 m) LOA should

have the same observer coverage

requirements as the fixed gear halibut

and sablefish IFQ fisheries. A

discrepancy exists between approved

IFQ regulations and proposed CDQ

regulations: The same vessel could fish

IFQ without observers yet be required to

carry two observers for CDQ. In both

instances, the vessel would be fishing

against a defined quota, which requires

an exact catch measurement for

enforcement purposes. If there is going

to be a difference, it should be justified

sufficiently to warrant the imposition of

a more burdensome regulation on one

component of the same fishery.

Response: The catch monitoring

requirements for the fixed gear halibut

and sablefish IFQ fisheries and the MS

CDQ fisheries are different. The IFQ

fisheries require accounting of the catch

of retained halibut and sablefish only.

When these species are retained, NMFS

Enforcement can check deliveries or

product transfers to verify the accuracy

of IFQ landings reports. The

multispecies CDQ fisheries will require

accounting for all catch, including

prohibited species and other groundfish

discarded at sea. The reliance on

observer data and the source of data

about CDQ and PSQ catch on these

vessels warrant the additional observer

coverage.

Comment 66: If longline catcher

vessels between 60 ft (18.29 m) and 125

ft (38.10 m) LOA participating in the

fixed gear halibut and sablefish CDQ

fisheries are required to carry one CDQ

observer, this requirement should be

delayed until 1999.

Response: NMFS proposed that these

observer coverage requirements would

not be effective until January 1, 1999.

These requirements are not changed in

the final rule.

Comments on Equipment Requirements

Comment 67: The Magnuson-Stevens

Act exempts longline catcher/processors

from being required to weigh their catch

on a scale.

Response: NMFS disagrees that

section 312(h) of the Magnuson-Stevens

Act (16 U.S.C. 1862(h)) exempts any

vessel from requirements to weigh catch

if these requirements are recommended

by the Council and approved by the

Secretary of Commerce. This section

does, however, state that the Council

should recommend measures to assist

processors and processing vessels to

acquire scales, unless the Council

determines that such weighing is not

necessary. The Magnuson-Stevens Act

provides the Council authority to

recommend scales on any type of

fishing or processing vessel.

Comment 68: NMFS received

comments opposing the proposed

requirement that catcher/processors

using trawl gear and motherships weigh

total catch in the CDQ fisheries on a

scale approved by NMFS under

§ 679.28. General comments stated that

scales to weigh catch at sea are not

necessary to determine the weight of

CDQ catch. One comment stated that

product recovery rates should be

sufficient to estimate the weight of

species, such as flatfish, for which the

overfishing limit is well above the TAC.

Response: NMFS has determined that

scales to weigh total catch on catcher/

processors using trawl gear and

motherships are necessary to manage

the multispecies groundfish CDQ

fisheries to obtain more accurate and

verifiable catch weight estimates. The

Council recommended the use of scales

in the BSAI pollock fisheries in

September 1994, and the MagnusonStevens Act authorizes the Council to

recommend the use of scales. Although

volumetric-based methods currently are

used by observers and could be used in

the CDQ fisheries, an accurate scale

weight is preferred by NMFS because it

shifts the responsibility for estimating

total catch weight from the observer to

the vessel operator. Volumetric

estimates place the responsibility

primarily on the observer. On many

vessels, the equipment or operational

situation does not provide the observer

with the conditions necessary to obtain

a good estimate of the volume or the

density of fish. If the vessel operator

disagrees with the process or outcome of

the observer’s volumetric estimate,

pressure could be placed on the

observer. However, if a scale is used to

weigh catch, the observer’s role is to

monitor the use of the scale, and the

vessel operator is responsible for

maintaining and using the scale

properly, testing the scale, and reporting

the scale weights.

Because attainment of CDQs or PSQs

will require the vessels fishing for a

CDQ group to stop fishing sometimes

before quotas for all species are reached,

the pressure on observers in the MS

CDQ fisheries is likely to be even greater

than that on observers in other fisheries.

NMFS expects that vessel operators will

pay much closer attention to the

observer data than they do in the

moratorium groundfish fisheries,

because their individual fishing activity

will be decided based upon these data

(unless some other method is approved

by NMFS in the CDP). A scale to weigh

total catch will increase the amount of

information used to manage the CDQ

fisheries that comes from the vessel

operator, rather than from the observer.

Product recovery rates are used only

to estimate the weight of retained catch.

They are not appropriate as a method

for estimating the total catch of CDQ

species because they do not account for

the weight of catch that is discarded

prior to processing.

Comment 69: Some vessel owners

may not be able to install scales, either

due to space constraints on the vessel or

due to the cost of the scale. A scale may

not be capable of weighing accurately

on small catcher/processors, because the

vessels pitch and roll so much in bad

weather. These scale requirements may

prevent fishing companies that already

have contracts with CDQ groups from

being able to participate in the CDQ

fisheries.

Response: NMFS has determined that

a scale is necessary on all catcher/

processors using trawl gear and on

motherships for the reasons stated in the

response to Comment 68. Processor

vessels that cannot meet the installation,

use, and daily testing requirements for

a scale to weigh total catch will not be

permitted to participate in the CDQ

fisheries, regardless of any contracts

with a CDQ group. Participation in the

CDQ fisheries is voluntary and

regulations governing the CDQ fisheries

do not preclude these vessels from

continuing to fish in the moratorium

groundfish fisheries.
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30393

Comment 70: NMFS has

underestimated the costs of installing a

scale. The purchase of the scale and

redesign of one vessel is estimated to

cost approximately $500,000.

Response: In the proposed rule,

NMFS estimated that the purchase of a

scale may cost between $30,000 (hopper

scales) and $50,000 (belt-conveyor

scales). Installation costs will vary

depending on the type of scale selected,

the modifications necessary to

accommodate the scale, and changes in

the sorting and discarding operations.

NMFS estimated that installation of an

at-sea scale could cost from $5,000 to

$250,000 per vessel and that the

installation of the scale could also

reduce the efficiency of the fish

processing factory, particularly if

processing equipment had to be

relocated. The installation estimates

were based on discussions with vessel

owners and businesses that design fish

processing factories. However, specific

estimates of the purchase and

installation of scales on particular

processor vessels were not undertaken.

NMFS acknowledges the uncertainty

associated with the estimates and

cannot either confirm or refute the cost

estimate made in this comment.

Participation in CDQ fisheries is

voluntary and NMFS anticipates that

only those vessels for which

participation is cost-effective will chose

to fish for CDQ.

Comment 71: The following comment

was received about the impact on small

entities of the requirement that catcher/

processors using trawl gear and

motherships weigh CDQ catch on a

scale approved by NMFS (text in italics

added by NMFS for clarification).

We understand that NMFS has never done

other than a finding of no significant impact

(FONSI) when looking at effects of

regulations under the standards of the

Regulatory Flexibility Act. However, we feel

certain that the agency must find a significant

impact from this certification regulation and

the ensuing regulations which specify who

must comply with this one (scale

requirement). The additional cost of the

compliance of my vessels with these

regulations will be considerably more than

the ten-percent used by NMFS as a marker.

And a quick review of the vessels doing CDQ

indicate that more than 20% will be

significantly impacted.

Response: The Regulatory Flexibility

Act (RFA) requires NMFS to consider

the capacity of those affected by

regulations to bear the direct and

indirect costs of regulation. If an action

will have a significant impact on a

substantial number of small entities, an

Initial Regulatory Flexibility Analysis

(IRFA) must be prepared to identify the

need for the action, alternatives,

potential costs and benefits of the

action, the distribution of these impacts,

and a determination of net benefits.

NMFS standards for determining

whether an action is likely to have a

significant economic impact on a

substantial number of small entities are

outlined in the Classification section of

this rule.

Four of the 58 catcher/processors

using trawl gear in the BSAI groundfish

fisheries are considered small entities

because they are fish-harvesting

businesses that are independently

owned and operated, not dominant in

their field of operation, and probably

have annual receipts not in excess of

$3,000,000.

NMFS estimates that up to 37 of the

58 catcher/processors using trawl gear

in the BSAI groundfish fisheries will

participate in the MS groundfish CDQ

fisheries, including all 4 of the catcher/

processors determined to be small

entities. Furthermore, NMFS has

determined that these small entities may

be significantly impacted by the

observer coverage and equipment

requirements, because these costs could

reduce annual gross revenues by more

than 5 percent, could result in

compliance costs as a percent of sales

for small entities that are at least 10

percent higher than compliance costs as

a percent of sales for large entities, or

could result in capital costs of

compliance that represent a significant

portion of capital available to small

entities, considering internal cash flow

and external financing capabilities. In

addition to these 4 catcher/processors

using trawl gear, NMFS determined that

an additional 29 of the small entities

expected to participate in the MS

groundfish CDQ fisheries also may be

significantly impacted by observer and

equipment requirements for the MS

CDQ fisheries. Additional information

about these other small entities is

included in the Classification section of

this final rule and in a Supplemental

Regulatory Impact Review available

from NMFS (see ADDRESSES).

However, although NMFS has

determined that the MS CDQ

monitoring regulations may have a

significant economic impact on

approximately 33 of the expected

participants in the MS groundfish CDQ

fisheries, these regulations will not

impact a ‘‘substantial number’’ of small

entities in the universe of 403 small

entities. NMFS generally considers a

substantial number to be 20 percent or

more of the universe of small entities.

The 33 vessels that could experience

significant economic impacts as a result

of this rule constitute only 8.2 percent

of the universe of affected small entities

(403).

In addition, participation in the CDQ

fisheries is voluntary. CDQ groups,

vessels, and processors are expected to

participate only if the CDQ fisheries

would generate some net economic gain

for their business. They would not be

expected to participate in the CDQ

fisheries if that participation would

result in significant negative economic

impact.

Comment 72: NMFS should not

require scales until more research is

done on whether scales will weigh

accurately on all vessel types and sizes

and in the range of environmental

conditions that occur at sea. Scales have

not been proven to weigh accurately on

all vessels and under all conditions that

will be experienced in the BSAI.

Response: NMFS cannot guarantee

that scales will weigh accurately on all

vessels and under all conditions and is

not setting this as a condition for

implementing the scale requirement in

the CDQ fisheries. Rather, NMFS has

determined that CDQ catch made by

catcher/processors using trawl gear or

delivered to motherships must be

weighed on a scale that meets the

requirements of § 679.28(c). No

exemptions or exceptions will be made.

If a scale on a vessel cannot meet these

standards for any reason, even reasons

relating to the type or size of vessel or

the weather or sea conditions, the vessel

should not participate in the CDQ

fisheries; if it does, it will be in

violation of NMFS regulations.

Comment 73: NMFS should allow the

use of other methods, such as

volumetrics, if a scale fails an at-sea

scale test or the scale malfunctions. It is

unreasonable to expect the vessel to

return to port in the middle of a trip.

Response: NMFS will not allow the

use of volumetric methods as a back-up

in case the scale fails an at-sea test or

malfunctions. Such an allowance would

undermine the requirement to weigh all

catch on a scale. Catcher/processors

using trawl gear and motherships are

required to weigh all catch in the CDQ

fisheries on a scale approved under, and

meeting all of the operational

requirements of, § 679.28(c).

Comment 74: NMFS should require

that total catch weight estimates on

processor vessels meet a standard for

accuracy, rather than prescribe a

method such as weighing on a scale.

Regulations should specify a result and

not a method.

Response: NMFS interprets this

suggestion to mean that NMFS should

specify a level of accuracy that must be

achieved in catch weight estimation and

allow vessel operators to demonstrate
30394 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

that this level of accuracy has been met.

Although no specific proposals were set

forth, NMFS does not believe that this

type of approach could be implemented.

If NMFS specified, for example, that

total catch weight must be determined

to within 3 percent of its known weight,

how would a vessel owner demonstrate

that the volumetric or production-based

method being used achieved this level

of accuracy?

Volumetric estimates are a product of

the estimate of the volume of fish in a

net or holding bin in cubic meters and

the density of fish in metric tons per

cubic meter. The observer multiplies the

cubic meters of fish in the net or bin by

the density factor to convert cubic

meters of fish into metric tons of fish.

The estimates of the cubic meters of fish

and the estimate of the density factor

have inherent errors. NMFS has recently

recommended a standard density factor

for catches that are 95 percent or more

pollock after conducting lengthy

research. However, no similar research

has been done for the mixed-species

fisheries where determination of a

density factor is complicated by the

changing species composition of catch

from haul to haul. The fishing industry

likely could not perform the research

necessary to specify conditions for

volumetric estimates of catch weight in

the mixed-species fisheries that would

demonstrate that the catch weight on

each vessel had been estimated within

a specific range of error or accuracy

standard.

The only practical option is to set

such performance standards for

particular types of equipment or

approaches as are established in

§ 679.28 for scales and volumetrics, then

specify which procedure must be

followed and the associated equipment

and operational requirements. In the

case of the multispecies CDQ fisheries,

NMFS has specified that scales are

required and volumetrics will not be

acceptable.

Comment 75: NMFS must have scale

inspectors readily available in Seattle

and Dutch Harbor to conduct scale

inspections. The scale requirement will

effectively require the State of Alaska to

station inspectors in these ports.

Response: Refer to the response to

comments in the final rule for the at-sea

scales program (63 FR 5836, February 4,

1998) for more information on the scale

inspection program. Although no State

of Alaska inspector will be stationed in

Seattle or Dutch Harbor, NMFS is

requiring that scale inspections be

conducted within 10 working days of

the date on which the State of Alaska

receives a written request from the

vessel owner.

Comment 76: The proposed

requirement to weigh CDQ catch on a

scale does not address the uncertainty

associated with species composition

sampling to determine the estimated

weight of each CDQ species in the catch.

Response: NMFS agrees that the

uncertainty associated with species

composition sampling is not changed by

the requirement to weigh total catch.

Observers will continue to sample the

catch to determine the proportion of

each species in each haul, set, or pot.

However, some aspects of the

multispecies CDQ regulations should

improve these samples. For example,

additional observers and the

requirement that each haul or set be

sampled will increase the amount of the

catch that is sampled for species

composition. The requirement that the

scale used to weigh total catch be

available for the observer to weigh large

partial haul samples should provide for

increased sample sizes, and the

requirement for a motion-compensated

platform scale should increase the

accuracy of the sample weights.

Methods proposed by NMFS that

would be based on observer sampling to

estimate species composition of the

catch would use sample sizes and

procedures that NMFS believes an

observer could reasonably accomplish

in the time available to him or her under

the fishing and processing conditions on

a vessel. Observers would obtain the

largest sample sizes they can, given

time, equipment, available space, and

catch composition. NMFS is not

proposing to specify minimum sample

sizes necessary to obtain catch weight

estimates with specific statistical

qualities. The staff resources and data

necessary to develop sampling plans

appropriate for specific target fisheries

or specific vessels are not available at

this time. In addition, NMFS expects

that the minimum sample sizes required

to estimate the weight of infrequently

occurring species on a haul-by-haul

basis with a high level of confidence

would be too large to accommodate in

the space available on many vessels and

would require more than two observers

to sort and weigh. If NMFS develops

sampling plans or minimum sample

sizes for the groundfish fisheries as a

whole in the future, this information

could be added to the CDQ fishery

requirements at that time.

Comment 77: The scale may have to

be installed in a location that prevents

the observer from seeing the fish at all

points between the live tank and the

sampling station.

Response: NMFS is not requiring that

the scale be located so that the observer

can see fish at all points between the

live tank and the sampling station.

Comment 78: NMFS should adopt a

pre-approval process to review and

approve or conditionally approve vessel

modification plans for scales and

observer sampling stations.

Response: NMFS will review plans for

vessel modifications and discuss

installation and technical requirements

if requested to do so by a vessel owner.

However, NMFS cannot approve the

vessel owner’s plans. Determination of

whether equipment meets NMFS’

requirements can only be determined

once the equipment is installed and in

use.

Comment 79: NMFS should clarify

that reinspection of bins is not required

for the 1998 pollock season for currently

participating vessels.

Response: Bins that are currently

certified based on regulations at

§ 679.32(e) with certification documents

dated before July 6, 1998 do not have to

meet two new requirements in this final

rule. These requirements are (1) the

requirement at § 679.28(e)(2)(i) that the

numerals at the 10-cm increment marks

be at least 4 cm high, and (2) the

requirement at § 679.28(e)(3) for the

information that must be submitted to

NMFS in the bin certification

documents. As stated in the proposed

rule, because the bin certification

requirements would be effective only for

1998 in the CDQ fisheries, vessel

owners should not be required to

modify numerals on previously certified

bins. However, any bins certified for the

first time or recertified after the effective

date of this final rule must comply with

this requirement.

Comment 80: The proposed

requirement for an observer sampling

station is a positive development for

observers. Observers will be able to

accomplish their duties much more

efficiently, resulting in higher quality

data and possibly larger sample sizes.

Response: NMFS agrees.

Comment 81: The proposed

requirement that the observer sampling

station on longline or pot catcher

vessels or catcher/processors be located

within 3 m of the location where fish

are brought on board the vessel is

unsafe. It will place observers

dangerously close to the location where

fish are landed. Three recommendations

were made. The first recommendation is

to specify the components and

dimensions of the observer sampling

station and allow the vessel to place it

in a safe location as close as possible to

where the fish are brought on board the

vessel or to where the observer has first

access to fish after they have been

removed from the hook or pot. If there
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30395

must be an absolute distance

requirement, it should be as close as

possible but not more than 40 ft (12.19

m). The second recommendation is for

NMFS to work with individual vessels

and decide on the best placement of

sampling stations on a vessel-by-vessel

basis. The third recommendation is to

allow the observer to determine the

location of the observer sampling

station, as currently is the practice.

Response: NMFS revised the

requirement in § 679.28(d)(2)(ii) for the

observer sampling station on vessels

using nontrawl gear as follows: ‘‘The

observer sampling station must be

located within 5 m of the location where

fish are brought on board the vessel,

unless any location within this distance

is unsafe for the observer. The vessel

owner must submit a written proposal

to NMFS for an alternative location,

including the reasons why a location

within 5 m of where fish are brought

onboard the vessel is unsafe.’’ This

written proposal must be included in

the proposed CDP.

Comment 82: In § 679.28(d)(3) of the

proposed rule, NMFS proposed that the

observer sampling station be at least 1.8

m wide by 2.5 m long (approximately 6

ft x 8 ft), including the observer’s

sampling table. The proposed size is too

large considering the limited space

available on most trawl and longline

vessels. Some otherwise highly

desirable CDQ partners may be

precluded from participation in the

CDQ program as a result of this

requirement.

Response: The specified amount of

space is necessary for the observer

sampling station. No change was made

in the final rule in response to this

comment.

Comment 83: The sampling station

should also include a requirement for a

checker bin or container where an

observer can deposit and hold fish

while sampling.

Response: Although it would be

helpful for the vessel owner to provide

such a container for observers, it is not

an essential element of an observer

sampling station. No change was made

in response to this comment.

Comment 84: Deck sorting of catch on

trawl catcher/processors is a technique

used to reduce the mortality rate of

some bycatch species, such as crab and

halibut. The observer may participate in

collecting and recording data regarding

this bycatch as deck sorting is taking

place. It would be dangerous for the

observer sampling station to be located

within 4 m of that location.

Response: The observer sampling

station on a trawl catcher/processor is

required to be within 4 m of where the

observer samples unsorted catch, which

generally occurs below deck as fish are

being removed from the holding bins.

Therefore, NMFS does not expect that

any observer sampling station would be

located on deck for catcher/processors

using trawl gear. With respect to sorting

prohibited species from the deck of

trawl catcher/processors, current

requirements at § 679.7(g) prohibit any

person from interfering with or biasing

the sampling procedure employed by an

observer, including physical,

mechanical, or other sorting or

discarding of catch, including bycatch,

before sampling. Therefore, if the

observer is sampling catch below deck,

the vessel crew is prohibited from

sorting any catch from the deck.

Other Miscellaneous Comments

Comment 85: NMFS should allow

vessels using trawl gear in the

groundfish CDQ fisheries to start fishing

on January 1, rather than requiring them

to comply with the closure to fishing

with trawl gear in the BSAI at § 679.23.

The period between January 1 and 20 is

an attractive time for many CDQ vessels

to target pollock and rock sole to

maximize the value of these fisheries.

Maintaining this closure reduces the

value of the CDQ fisheries.

Response: NMFS believes that this

issue should be addressed before the

Council with an opportunity for

analysis and public comment.

Therefore, the final rule will not be

changed in response to this comment.

Comment 86: Retention and

utilization requirements under the IR/IU

program should not apply to the MS

CDQ Program. These requirements are

unnecessary and unreasonable, since

the CDQ program, by its nature, ensures

that the CDQ groups will rationally

determine the optimal balance between

socioeconomic needs and production

cost, thus eliminating waste.

Response: NMFS disagrees. The CDQ

fisheries will not be exempt from

retention and utilization requirements

that must be met by any vessel fishing

for groundfish in the BSAI. The

commenter is referred to the proposed

and final rules implementing the IR/IU

Program for a description of the purpose

and need of the IR/IU Program (62 FR

34429, June 26, 1997, and 62 FR 63880,

December 3, 1997).

Comment 87: The interim

specifications process allows the harvest

of only 25 percent of the CDQ and PSQ

amounts until the specifications are

finalized for the fishing year. This

creates unnecessary problems that

hamper the MS CDQ Program’s

effectiveness. NMFS should change the

regulations to assign 50 percent of the

proposed CDQs to the CDQ groups.

Response: The Council and NMFS are

considering changes to the annual

specifications process. Therefore, NMFS

recommends that concerns about the

impact of the specifications process on

the CDQ fisheries be addressed through

this ongoing Council process. No change

to the final rule was made in response

to this comment.

Changes From the Proposed Rule

In addition to the changes described

in the Response to Comments section,

NMFS has made the following changes

from the proposed rule:

1. The definition of CDQ number was

revised to specify that this number is to

be used on all reports submitted by

vessels and processors participating in

the CDQ program in addition to being

used by the CDQ representative.

2. The requirement for a CDQ permit

was removed from the final rule because

it was redundant; there are other

requirements to demonstrate

compliance with equipment

requirements. Additionally, the fact that

only certain vessels and processors were

required to have a CDQ permit caused

confusion. The objective of the CDQ

permit was to provide a mechanism to

verify that the scales and the observer

sampling station required on vessels

and sorting and weighing requirements

for shoreside processors complied with

requirements in § 679.28 before a vessel

or processor was allowed to participate

in the CDQ fisheries. The final rule

replaces the CDQ permit with the

requirement at § 679.28(d)(8) for an

inspection of the observer sampling

station by NMFS to verify that

requirements for the observer sampling

station are met. A prohibition against

participating in the CDQ fisheries

without a valid observer sampling

station inspection report is added to

§ 679.7. The process for inspecting and

approving at-sea scales already exists at

§ 679.28(b).

3. In the final rule, NMFS removed

the sentence in § 679.32(a)(2) of the

proposed rule, which stated, ‘‘[t]he

catch of * * * sablefish with fixed gear

in the multispecies CDQ fisheries in

1998 will not accrue to the CDQs for

these species.’’ NMFS reviewed the

Council’s recommendations from its

meeting in April 1996 and determined

that the Council intended to exempt

only groundfish and prohibited species

bycatch in the fixed gear sablefish CDQ

fisheries from accrual to the CDQs and

PSQs for these species in 1998. This

provision is made in § 679.32(g).

However, the Council did not request

that NMFS exempt sablefish catch in
30396 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

other groundfish CDQ fisheries from

accrual against the sablefish CDQ in

1998. Therefore, the final rule requires

bycatch of sablefish in other CDQ

fisheries in 1998 to accrue against a

CDQ group’s sablefish CDQ.

4. NMFS added prohibitions to

§ 679.7 against owners or operators of

vessels or processors participating in the

CDQ fisheries in violation of equipment

requirements.

5. NMFS added a new paragraph (h)

to § 679.22 to cross reference the MS

CDQ Program’s prohibited species catch

closures that are listed in § 679.7(d).

6. NMFS revised § 679.28(d)(5) to be

consistent with requirements for the

observer sampling scale added to the

final rule for the at-sea scale program

(63 FR 5836, February 4, 1998). The

observer sampling scale must be

approved by NMFS under paragraph (b)

of this section, must be tested daily as

required under paragraph (b)(3) of this

section, and must meet the maximum

permissible error requirement specified

in paragraph (b)(3)(ii)(A) of this section.

7. NMFS revised § 679.30(a)(5)(iii) to

add the provision that a substantial

amendment must be used to add a

vessel to an approved CDP if the CDQ

group submits a proposed alternative to

NMFS’s standard methods of

determining CDQ and PSQ catch for that

vessel under § 679.30(a)(5)(ii). In this

case, a technical amendment would not

provide sufficient time for NMFS’

review of the alternative proposal.

8. The final rule makes three technical

corrections to the proposed rule. First,

the allocation of PSC to the MS CDQ

program is moved from § 679.21(e)(3) to

§ 679.21(e)(1)(i) and (e)(2)(i) in order to

solve cross referencing problems that

were created when the instruction was

placed in paragraph (e)(3). Second, cross

references to paragraphs of §§ 679.2,

679.21, and 679.31 that are changed by

this rule are updated. Third, the

stricture that PSQ is not apportioned by

gear or fishery is made explicit in

§ 679.21(e)(1)(i) and (e)(2)(ii).

9. The final rule amends 15 CFR part

902 to add the OMB control number for

the at-sea scales program to the list of

approved NOAA information collection

requirements under the Paperwork

Reduction Act.

Classification

This final rule has been determined to

be not significant for purposes of E.O.

12866.

At the proposed rule stage, the

Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule would not have a significant

economic impact on a substantial

number of small entities. NMFS

received one comment on that

certification (see Comment 71 and the

response to it). For the following

reasons, this comment did not lead

NMFS to change its certification and as

a result, a regulatory flexibility analysis

was not prepared.

The MS CDQ Program is comprised of

three different CDQ fisheries: (1) The

multispecies groundfish CDQ fisheries,

which include the current pollock and

fixed gear sablefish CDQ fisheries, as

well as the additional groundfish and

prohibited species added to the CDQ

program in 1998; (2) the fixed gear

halibut CDQ fisheries; and (3) the crab

CDQ fisheries. Information about the

impact of the allocation of the CDQ

reserves from the TACs available to nonCDQ fisheries was discussed in the final

rule that implemented the multispecies

groundfish and crab CDQ reserves (63

FR 8356, February 19, 1998). The final

rule being published today includes the

administrative requirements for all of

the CDQ fisheries and the reporting and

catch monitoring requirements for the

groundfish and halibut CDQ fisheries.

Catch monitoring for the crab CDQ

fisheries is the responsibility of the

State of Alaska and NMFS does not

promulgate regulations governing catch

monitoring for the crab CDQ fisheries.

In addition, this final rule makes no

significant changes to the catch

monitoring requirements for the halibut

CDQ fisheries. Therefore, the primary

economic impact of this final rule on

participants in the CDQ fisheries is the

impact of the equipment and observer

coverage requirements for vessels and

processors participating in the MS

groundfish CDQ fisheries. Therefore, the

remainder of this discussion focuses on

participants in that fishery only (MS

groundfish CDQ).

NMFS prepared a Supplemental

Regulatory Impact Review to analyze

the impact of the equipment and

observer coverage requirements for

vessels and processors participating in

the MS groundfish CDQ fisheries. This

analysis is available from NMFS (see

ADDRESSES).

The universe of entities that could

participate in the MS groundfish CDQ

program is comprised of all 471 current

participants in the BSAI groundfish

fisheries, including the CDQ groups,

vessels, and processors. The individual

participants are divided into the

following categories: CDQ groups,

catcher vessels using trawl gear on

vessels less than 60 ft (18.29 m) LOA,

catcher vessels using fixed gear

(longline and pot gear) on vessels less

than 60 ft (18.29 m) LOA, catcher

vessels using trawl gear on vessels 60′

and over LOA, catcher vessels using

fixed gear on vessels 60′ and over LOA,

catcher/processors of any length using

trawl gear, catcher/processors of any

length using fixed gear, motherships,

floating processors (processor vessels

operating within 3 miles of the coast of

Alaska), and shoreside processing

plants. Of these 471 entities, 403 (86

percent) are considered small entities

and, therefore, make up the ‘‘universe of

small entities.’’

Of the 471 affected entities, NMFS

estimates that 92 will participate in the

MS groundfish CDQ fisheries based on

current participation in the pollock and

fixed gear sablefish CDQ fisheries and

on the CDQ groups’ projections of the

number of additional participants that

will enter the CDQ fisheries once the

MS CDQ Program is implemented. The

92 participants are comprised of 6 CDQ

groups; 28 catcher vessels 60 ft (18.29

m) LOA and over using trawl gear; 5

catcher vessels 60 ft (18.29 m) LOA and

over using longline gear; 37 catcher/

processors using trawl gear; 10 catcher/

processor using longline gear; 2

motherships; and 4 shoreside processing

plants.

Of these 92 expected participants in

the MS groundfish CDQ fisheries, 57 are

considered small entities by NMFS. The

small entities include 6 CDQ groups; 28

catcher vessels 60 ft (18.29 m) LOA and

over using trawl gear; 5 catcher vessels

60 ft (18.29 m) LOA and over using

longline gear; 4 of the 37 catcher/

processors using trawl gear; 10 catcher/

processor using longline gear; 4

shoreside processing plants.

NMFS further determined that 33 of

the 57 small entities expected to

participate in the MS groundfish CDQ

fisheries may be significantly impacted

by the observer coverage and equipment

requirements for the following reasons.

Six CDQ groups: the costs of observer

coverage and equipment requirements

are directly paid by the vessels and

processors participating in the CDQ

fisheries. However, these costs may be

passed on to the CDQ groups in the form

of lower royalties. Therefore, the CDQ

groups may indirectly bear the costs of

these requirements. Because NMFS does

not know whether these costs will be

passed on or to what degree, NMFS

determines that the CDQ groups may be

significantly impacted by the observer

coverage and equipment requirements

because these costs could reduce annual

gross revenues to the CDQ groups by

more than 5 percent.

Four catcher vessels 60 ft (18.29 m)

and over using trawl gear: 24 of the 28

catcher vessels that are expected to
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30397

participate in the MS groundfish CDQ

fisheries will not be significantly

impacted by the observer coverage

requirements because they already are

required to have this level of observer

coverage under current regulations for

the pollock CDQ fisheries. However, the

4 additional catcher vessels that NMFS

expects may enter the MS groundfish

CDQ fisheries in the future could be

significantly impacted by the observer

coverage requirements because these

costs could reduce annual gross

revenues by more than 5 percent, or

could result in compliance costs as a

percent of sales for small entities that

are at least 10 percent higher than

compliance costs as a percent of sales

for large entities.

Five catcher vessels 60 ft (18.29 m)

and over using longline gear: NMFS

determines that these small entities may

be significantly impacted by the

observer coverage requirements because

these costs could reduce annual gross

revenues by more than 5 percent, or

could result in compliance costs as a

percent of sales for small entities that

are at least 10 percent higher than

compliance costs as a percent of sales

for large entities.

Four of the 37 catcher/processors

using trawl gear: NMFS determines that

these small entities may be significantly

impacted by the observer coverage and

equipment requirements because these

costs could reduce annual gross

revenues by more than 5 percent, could

result in compliance costs as a percent

of sales for small entities that are at least

10 percent higher than compliance costs

as a percent of sales for large entities, or

could result in capital costs of

compliance that represent a significant

portion of capital available to small

entities, considering internal cash flow

and external financing capabilities.

Ten catcher/processor using longline

gear: NMFS determines that these small

entities may be significantly impacted

by the observer coverage and equipment

requirements because these costs could

reduce annual gross revenues by more

than 5 percent, could result in

compliance costs as a percent of sales

for small entities that are at least 10

percent higher than compliance costs as

a percent of sales for large entities, or

could result in capital costs of

compliance that represent a significant

portion of capital available to small

entities, considering internal cash flow

and external financing capabilities.

Four shoreside processing plants:

NMFS determines that these small

entities may be significantly impacted

by the observer coverage requirements

because these costs could reduce annual

gross revenues by more than 5 percent,

or could result in compliance costs as a

percent of sales for small entities that

are at least 10 percent higher than

compliance costs as a percent of sales

for large entities.

NMFS has determined that, while the

MS CDQ monitoring regulations may

have a significant impact on

approximately 33 of the expected

participants in the MS groundfish CDQ

fisheries, these regulations will not

impact a ‘‘substantial number’’ of small

entities in the universe of 403 small

entities. A substantial number is defined

by NMFS as 20 percent or more of the

universe of small entities. The

participants that could experience

significant economic impacts constitute

8.2 percent of the total universe of

affected small entities (403).

In addition, participation in the CDQ

fisheries is voluntary. It is anticipated

that CDQ groups, vessels, and

processors would weigh the cost of

compliance with these regulations

against the potential profits associated

with participating in the CDQ program

and would enter the CDQ fisheries only

if they expected to realize a net

economic benefit.

Finally, some of the catch monitoring

costs will be deductible under the future

CDQ fee collection program. The

Magnuson-Stevens Act, section 305(i)(3)

states that ‘‘The Secretary shall deduct

from any fees collected from a

community development quota program

under section 304(d)(2) the costs

incurred by participants in the program

for observer and reporting requirements

which are in addition to observer and

reporting requirements of other

participants in the fishery in which the

allocation to such program has been

made.’’

This rule contains collection-ofinformation requirements subject to the

Paperwork Reduction Act. A request

will be submitted to the Office of

Management and Budget (OMB) for

approval of the requirements for the

CDQ delivery report (§ 679.5(n)(1)),

prior notice to the observer on catcher/

processors and motherships that CDQ

catch will be brought onboard the vessel

(§ 679.32(c)(4)(i)), additional

information in the CDQ catch report

(§ 679.5(n)(2)) and additional

information in the CDP

(§ 679.30(a)(5)(i)(A)(2)). The public

reporting burden for these proposed

requirements is estimated to be 1 hour

per response for the CDQ delivery

report, 2 minutes per response for prior

notice to the observers, 1⁄2 hour per

response for the CDQ catch report and

20 hours per response for the additional

information required in the CDP.

Notwithstanding any other provision

of the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with, a collection-of-information subject

to the requirements of the PRA, unless

that collection-of-information displays a

currently valid OMB control number.

These 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 (see ADDRESSES) and

to the Office of Information and

Regulatory Affairs, OMB, Washington,

DC 20503, Attention: NOAA Desk

Officer.

The other collections of information

in this rule have been approved by

OMB, OMB control number 0648–0269.

The public reporting burden for this

collection of information is estimated to

average 500 hours per response for the

CDPs, 40 hours per response for the

annual report, 20 hours per response for

the annual budget reports, 8 hours per

response for the annual budget

reconciliation reports, 8 hours per

response for substantial amendments, 4

hours per response for technical

amendments, 2 hours per response for

CDQ catch reports, 2 hours per response

for the request for an inspection of the

observer sampling station (information

required under the CDQ permit in the

proposed rule), 2 minutes per response

for prior notices to the observer that

CDQ catch will be offloaded at the

shoreside processing plant, and 10

minutes per response for printing and

retaining scale printouts by shoreside

processors. The public reporting burden

for requirements applicable in 1998 is

estimated to average only 8 hours per

response to complete bin certification

documents, 0.5 hour per response for

changes to the list of CDQ halibut/

sablefish cardholders, and 1 hour per

response for changes to CDP lists of

vessels for halibut/sablefish.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping

requirements.

50 CFR Part 679

Alaska, Fisheries, Reporting and

recordkeeping requirements.
30398 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

Dated: May 27, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For reasons set out in the preamble,

15 CFR part 902 and 50 CFR part 679

are amended as follows:

15 CFR Chapter IX

PART 902—NOAA INFORMATION

COLLECTION REQUIREMENTS UNDER

THE PAPERWORK REDUCTION ACT:

OMB CONTROL NUMBERS

1. The authority citation for part 902

continues to read as follows:

Authority: 44 U.S.C. 3501 et seq.

§ 902.1 [Amended]

2. In § 902.1, paragraph (b), in the

table, under 50 CFR, the following

changes are made:

a. To the entry ‘‘679.5’’, the number

‘‘–0269’’ is added to the list of numbers

in the right column.

b. The entry ‘‘679.28’’ is added in

numerical order in the left column and

the corresponding entry ‘‘–0330’’ is

added in the right column.

c. To the entry ‘‘679.32’’, the number

‘‘–0272’’ is added to the list of numbers

in the right column.

d. The entries for ‘‘679.33’’ and

‘‘679.34’’ are removed.

50 CFR Chapter VI

PART 679—FISHERIES OF THE

EXCLUSIVE ECONOMIC ZONE OFF

ALASKA

3. The authority citation for part 679

continues to read as follows:

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

seq., and 3631 et seq.

4. In § 679.1, paragraph (e) is revised

to read as follows:

§ 679.1 Purpose and scope.

* * * * *

(e) Western Alaska CDQ Program. The

goals and purpose of the CDQ program

are to allocate CDQ to eligible Western

Alaska communities to provide the

means for starting or supporting

commercial fisheries business activities

that will result in an ongoing, regionally

based, fisheries-related economy.

* * * * *

5. In § 679.2, the definition for

‘‘Governor’’ is removed; the definitions

for ‘‘Community Development Plan

(CDP)’’, ‘‘Community Development

Quota (CDQ)’’, ‘‘Person’’, ‘‘Prohibited

species quota’’, ‘‘Qualified applicant’’,

and ‘‘Resident fisherman’’ are revised;

and definitions for ‘‘CDQ allocation’’,

‘‘CDQ group’’, ‘‘CDQ number’’, ‘‘CDQ

project’’, ‘‘CDQ representative’’, ‘‘CDQ

species’’, ‘‘Eligible community’’, ‘‘Fixed

gear sablefish and halibut CDQ fishing’’,

‘‘Groundfish CDQ fishing’’, ‘‘Managing

organization’’, ‘‘Pollock CDQ fishing’’,

‘‘PSQ allocation’’, and ‘‘PSQ species’’

are added in alphabetical order to read

as follows:

§ 679.2 Definitions.

* * * * *

CDQ allocation means a percentage of

a CDQ reserve under § 679.31 that is

assigned to a CDQ group when NMFS

approves a proposed CDP.

CDQ group means a qualified

applicant with an approved CDP.

CDQ number means a number

assigned to a CDQ group by NMFS that

must be used on all reports submitted

by the CDQ group or by vessels and

processors catching CDQ or PSQ under

an approved CDP.

CDQ project means any program that

is funded by a CDQ group’s assets for

the economic or social development of

a community or group of communities

that are participating in a CDQ group,

including, but not limited to,

infrastructure development, CDQ

investments, employment and training

programs, and CDP administration.

CDQ representative means the

individual who is the official contact for

NMFS regarding all matters relating to

a CDQ group’s activities.

CDQ species means any species or

species group that has been assigned to

a CDQ reserve under § 679.31.

* * * * *

Community Development Plan (CDP)

means a business plan for the economic

and social development of a specific

Western Alaska community or group of

communities under the CDQ program at

§ 679.30.

Community Development Quota

(CDQ) means the amount of a CDQ

species established under § 679.31, in

metric tons, that is allocated to the CDQ

program.

* * * * *

Eligible community means a

community that is listed in Table 7 to

this part or that meets all of the

following requirements:

(1) The community is located within

50 nm from the baseline from which the

breadth of the territorial sea is measured

along the Bering Sea coast from the

Bering Strait to the most western of the

Aleutian Islands, or on an island within

the Bering Sea. A community is not

eligible if it is located on the GOA coast

of the North Pacific Ocean, even if it is

within 50 nm of the baseline of the

Bering Sea.

(2) That is certified by the Secretary

of the Interior pursuant to the Native

Claims Settlement Act (Pub. L. 92–203)

to be a native village.

(3) Whose residents conduct more

than half of their current commercial or

subsistence fishing effort in the waters

of the BSAI.

(4) That has not previously developed

harvesting or processing capability

sufficient to support substantial

groundfish fisheries participation in the

BSAI, unless the community can show

that benefits from an approved CDP

would be the only way to realize a

return from previous investments. The

community of Unalaska is excluded

under this provision.

* * * * *

Fixed gear sablefish and halibut CDQ

fishing (applicable through December

31, 1998) means fishing with fixed gear

by an eligible vessel listed on an

approved CDP that results in the catch

of any halibut CDQ or the catch of any

sablefish CDQ that accrues against the

fixed gear sablefish CDQ reserve.

* * * * *

Groundfish CDQ fishing (applicable

through December 31, 1998) means

fishing by an eligible vessel listed on an

approved CDP that results in the catch

of any CDQ or PSQ species other than

pollock CDQ, halibut CDQ, and fixed

gear sablefish CDQ.

* * * * *

Managing organization means the

organization responsible for managing

all or part of a CDP.

* * * * *

Person means:

(1) For purposes of IFQ species and

the CDQ program, any individual who

is a citizen of the United States or any

corporation, partnership, association, or

other entity (or its successor-in-interest),

regardless of whether organized or

existing under the laws of any state,

who is a U.S. citizen.

(2) For purposes of High Seas Salmon

Fishery permits issued under § 679.4(h),

the term ‘‘person’’ excludes any

nonhuman entity.

(3) (Applicable through December 31,

1998). For purposes of the moratorium,

any individual who is a citizen of the

United States or any U.S. corporation,

partnership, association, or other entity

(or its successor-in-interest), regardless

of whether organized or existing under

the laws of any state.

* * * * *

Pollock CDQ fishing (applicable

through December 31, 1998) means

fishing with pelagic trawl gear by an

eligible vessel listed on an approved

CDP that results in the catch of pollock

that accrues against a CDQ group’s

allocation of pollock CDQ.

* * * * *
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30399

Prohibited species quota (PSQ) means

the amount of a prohibited species catch

limit established under § 679.21(e) (1)

and (2) that is allocated to the

groundfish CDQ program under § 679.21

(e)(1)(i) and (e)(2)(i).

* * * * *

PSQ allocation means a percentage of

a PSQ reserve specified pursuant to

§ 679.31(g) that is assigned to a CDQ

group when NMFS approves a proposed

CDP.

PSQ species means any species that

has been assigned to a PSQ reserve as

specified at § 679.31(g) for purposes of

the CDQ program.

Qualified applicant means, for the

purposes of the CDQ program:

(1) A local fishermen’s organization

that:

(i) Represents an eligible community

or group of eligible communities;

(ii) Is incorporated under the laws of

the State of Alaska or under Federal

law; and

(iii) Has a board of directors

composed of at least 75 percent resident

fishermen of the community (or group

of communities); or

(2) A local economic development

organization that:

(i) Represents an eligible community

or group of communities;

(ii) Is incorporated under the laws of

the State of Alaska or under Federal law

specifically for the purpose of designing

and implementing a CDP; and

(iii) Has a board of directors

composed of at least 75 percent resident

fishermen of the community (or group

of communities).

* * * * *

Resident fisherman means an

individual with documented

commercial or subsistence fishing

activity who maintains a mailing

address and permanent domicile in an

eligible community and is eligible to

receive an Alaska Permanent Fund

dividend at that address.

* * * * *

6. In § 679.5, paragraphs (h)(2)(i)(C)

and (h)(2)(ii)(F) are revised, and a new

paragraph (n) is added to read as

follows:

§ 679.5 Recordkeeping and reporting.

* * * * *

(h) * * *

(2) * * *

(i) * * *

(C) Fishing for groundfish CDQ

species. The operator of a catcher/

processor or mothership must submit by

fax a check-in report to the Regional

Administrator prior to fishing for any

CDQ species. A separate report must be

submitted for each CDQ number.

(ii) * * *

(F) Fishing for groundfish CDQ

species. The operator of a catcher/

processor or mothership must submit by

fax a check-out report to the Regional

Administrator within 24 hours after

fishing for any CDQ species has ceased.

A separate report must be submitted for

each CDQ number.

* * * * *

(n) Groundfish CDQ fisheries—(1)

CDQ delivery report. The manager of

each shoreside processor and the

manager or operator of each buying

station taking deliveries of CDQ or PSQ

species from catcher vessels must

submit the following information on the

CDQ delivery report to NMFS within 24

hours of each delivery of groundfish

CDQ species:

(i) CDQ number.

(ii) Name of the vessel delivering

CDQ, writing ‘‘unnamed’’ if the vessel

has no name.

(iii) ADF&G number of the vessel

delivering CDQ.

(iv) Federal fisheries permit number

of the vessel delivering CDQ, if

applicable.

(v) Name of the processor taking

delivery of the CDQ.

(vi) Federal processor permit number

of the processor taking delivery of the

CDQ.

(vii) Gear used to catch CDQ.

(viii) The CDQ delivery number,

which is a unique, sequential number

assigned by the catcher vessel operator

and recorded in the DCPL.

(ix) Reporting area where CDQ catch

was made.

(x) For catcher vessels using trawl

gear, whether the catch was from the

CVOA or from the COBLZ.

(xi) Date the CDQ catch was delivered

to the processor.

(xii) Species codes using codes in

Table 2 to this part.

(xiii) Product codes using the product

codes listed in Table 1 to this part for

groundfish and at § 679.42(c)(2)(iii) for

halibut, using product code 98 to

designate at-sea discards reported by the

operator of an unobserved vessel.

(xiv) Product weight to the nearest

0.001 mt for groundfish CDQ and

halibut CDQ or PSQ, and the total

number of salmon PSQ and crab PSQ

delivered to the processor. The weight

of halibut CDQ, halibut PSQ, halibut

IFQ, and sablefish IFQ must be reported

separately on the CDQ delivery report.

In addition, PSQ delivered to the

processor must be reported separately

from PSQ discarded at sea by

unobserved catcher vessels. For catcher

vessels with a CDQ observer, do not

report estimates of at-sea discards on the

CDQ delivery report.

(xv) The printed name, signature, and

date of signature for the vessel operator

and the manager of the shoreside

processing plant or operator or the

buying station.

(2) CDQ catch report. The CDQ catch

report is required for all catch made by

vessels groundfish CDQ fishing as

defined at § 679.2. The CDQ

representative must submit the

following information to NMFS within

7 days of the date CDQ catch was

delivered by a catcher vessel to a

shoreside processor, buying station, or

mothership, or within 7 days of the date

gear used to catch CDQ was retrieved for

catcher/processors.

(i) For all CDQ catch reports. (A) CDQ

number.

(B) Name of vessel used to catch CDQ,

writing ‘‘unnamed’’ if the vessel has no

name.

(C) Federal fisheries permit number of

the vessel used to catch CDQ.

(D) ADF&G number of the vessel used

to catch CDQ.

(E) Gear used to catch CDQ.

(F) Reporting area where CDQ catch

was made.

(G) For vessels using trawl gear,

whether the catch was from the CVOA

or COBLZ.

(H) Species codes using codes in

Table 2 to this part.

(I) The CDQ representative’s printed

name, signature, and date of signature.

(ii) For catcher vessels retaining all

groundfish CDQ and delivering it to a

shoreside processing plant (Option 1 in

the CDP). (A) Name of the processor

taking delivery of the CDQ.

(B) Federal processor permit number

of the processor taking delivery of the

CDQ.

(C) Date CDQ catch was delivered.

(D) The CDQ delivery number.

(E) Product codes using the product

codes listed in Table 1 to this part for

groundfish and at § 679.42(c)(2)(iii) for

halibut, using product code 98 to

designate at-sea discards reported by the

operator of an unobserved vessel.

(F) Product weight to the nearest

0.001 mt for groundfish CDQ and

halibut CDQ or PSQ, and the total

number of salmon PSQ and crab PSQ.

The weight of halibut and sablefish CDQ

and IFQ, and the weight of halibut PSQ

must be reported separately. PSQ

reports must include all PSQ delivered

to the processor and all PSQ reported as

discarded at sea by the vessel operator

for unobserved vessels and by the CDQ

observer for vessels required to carry a

CDQ observer. The CDQ catch report

must identify whether sablefish CDQ

accrues against the fixed gear sablefish

CDQ reserve or the sablefish CDQ

reserve as defined at § 679.20(b)(1)(iii).
30400 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

(iii) For catcher/processors; catcher

vessels delivering to motherships; and

catcher vessels using nontrawl gear

discarding groundfish CDQ at sea and

delivering to shoreside processing plants

(Option 2 in the CDP). (A) Name,

Federal fisheries permit number, and

ADF&G number of the mothership, if

applicable.

(B) Name and Federal processor

permit of the shoreside processing

plant, if applicable.

(C) The CDQ observer’s haul or set

number.

(D) Date gear retrieved by the catcher/

processor, mothership, or catcher vessel

as determined by the CDQ observer.

(E) The total weight to the nearest

0.001 mt for groundfish CDQ and

halibut PSQ, the product code and

product weight for halibut CDQ, and the

total number of salmon PSQ and crab

PSQ. The weight of halibut CDQ and

halibut PSQ must be reported separately

and the CDQ catch report must identify

whether sablefish CDQ accrues against

the fixed gear sablefish CDQ reserve or

the sablefish CDQ reserve as defined at

§ 679.20(b)(1)(iii).

(3) Halibut CDQ. All halibut CDQ

harvested by vessels while groundfish

CDQ fishing as defined at § 679.2 must

be reported on the CDQ delivery report

and on the CDQ catch report.

7. In § 679.7, paragraph (d) is revised

to read as follows:

§ 679.7 Prohibitions.

* * * * *

(d) CDQ. (1) Participate in a Western

Alaska CDQ program in violation of this

part.

(2) Fail to submit, submit inaccurate

information on, or intentionally submit

false information on any report,

application, or statement required under

this part.

(3) Participate as a community in

more than one CDP, unless the second

CDP is for vessels fishing halibut CDQ

only.

(4) Harvest groundfish CDQ or halibut

CDQ or PSQ on behalf of a CDQ group

with a vessel that is not listed as an

eligible vessel on an approved CDP for

that CDQ group.

(5) For a CDQ group, exceed a CDQ,

halibut PSQ, or crab PSQ.

(6) For the operator of an eligible

vessel listed on an approved CDP, use

trawl gear to harvest groundfish CDQ in

Zone 1 after the CDQ group’s red king

crab PSQ or C. bairdi Tanner crab PSQ

in Zone 1 is attained.

(7) For the operator of an eligible

vessel listed on an approved CDP, use

trawl gear to harvest groundfish CDQ in

Zone 2 after the CDQ group’s PSQ for

C. bairdi Tanner crab in Zone 2 is

attained.

(8) For the operator of an eligible

vessel listed on an approved CDP, use

trawl gear to harvest groundfish CDQ in

the C. opilio Bycatch Limitation Zone

after the CDQ group’s PSQ for C. opilio

Tanner crab is attained.

(9) For the operator of an eligible

vessel listed on an approved CDP, use

trawl gear to harvest groundfish CDQ in

the Chinook Salmon Savings Area

between January 1 and April 15 after the

CDQ group’s chinook salmon PSQ is

attained.

(10) For the operator of an eligible

vessel listed on an approved CDP, use

trawl gear to harvest groundfish CDQ in

the Chum Salmon Savings Area between

September 1 and October 14 after the

CDQ group’s non-chinook salmon PSQ

is attained.

(11) For the operator of a catcher

vessel using trawl gear or any vessel less

than 60 ft (18.29 m) LOA, discard any

groundfish CDQ species or salmon PSQ

before it is delivered to an eligible

processor listed on an approved CDP.

(12) For the operator of a vessel using

trawl gear, release CDQ catch from the

codend before it is brought on board the

vessel and weighed on a scale approved

by NMFS under § 679.28(b) or delivered

to a processor. This includes, but is not

limited to, ‘‘codend dumping’’ and

‘‘codend bleeding.’’

(13) For the operator of a catcher

vessel, catch, retain on board, or deliver

groundfish CDQ species together with

moratorium groundfish species.

(14) For the operator of a catcher/

processor, catch groundfish CDQ

species together with moratorium

groundfish species in the same haul, set,

or pot.

(15) For the operator of a catcher/

processor or a catcher vessel required to

carry a CDQ observer, combine catch

from two or more CDQ groups or from

CDQ and IFQ in the same haul or set.

(16) Use any groundfish CDQ species

as a basis species for calculating

retainable bycatch amounts under

§ 679.20.

(17) For the operator of a catcher/

processor using trawl gear or a

mothership, harvest or take deliveries of

CDQ or PSQ species without a valid

scale inspection report signed by an

authorized scale inspector under

§ 679.28(b)(2) on board the vessel.

(18) For the operator of a vessel

required to have an observer sampling

station described at § 679.28(d), harvest

or take deliveries of CDQ or PSQ species

without a valid observer sampling

station inspection report issued by

NMFS under § 679.28(d)(8) on board the

vessel.

(19) For the operator of a catcher/

processor using trawl gear or a

mothership, sort, process, or discard

CDQ or PSQ species before the total

catch is weighed on a scale that meets

the requirements of § 679.28(b).

(20) For the operator of a vessel

required to have a scale to weigh total

catch or an observer sampling scale,

harvest or take deliveries of CDQ or PSQ

species if any scale fails to meet the

daily test requirements described at

§ 679.28(b)(3).

(21) For the manager of a shoreside

processor or the manager or operator of

a buying station that is required

elsewhere in this part to weigh catch on

a scale approved by the State of Alaska

under § 679.28(b), fail to weigh catch on

a scale that meets the requirements of

§ 679.28(b).

(22) For the operator of a catcher/

processor or mothership that is required

elsewhere in this part to provide

certified bins for volumetric estimates

that meet the requirements of

§ 679.28(e), fail to provide bins that

meet the requirements of § 679.28(e).

(23) For a CDQ representative, use

methods other than those approved in

the CDP to determine the catch of CDQ

and PSQ reported to NMFS on the CDQ

catch report.

(24) For the operator of a vessel using

trawl gear, harvest pollock CDQ in 1998

with trawl gear other than pelagic trawl

gear.

(25) For a CDQ group, report catch of

sablefish CDQ for accrual against the

fixed gear sablefish CDQ reserve if that

sablefish CDQ was caught with fishing

gear other than fixed gear.

(26) For the operator of a vessel,

harvest halibut CDQ with other than

fixed gear.

(27) For a CDQ group, fail to ensure

that all vessels and processors listed as

eligible on the CDQ group’s approved

CDP comply with all regulations in this

part while fishing for CDQ.

(28) Fail to comply with the

requirements of a CDP.

* * * * *

8. Section 679.21 is amended by

making the following changes:

a. Paragraphs (b)(2)(ii) and (b)(3) are

revised;

b. The introductory text of paragraphs

(e)(1)(i), (e)(1)(ii), (e)(1)(iii), and

paragraphs (e)(1)(iv) through (e)(1)(vii)

are redesignated as the introductory text

of paragraphs (e)(1)(ii), (e)(1)(iii),

(e)(1)(iv) and paragraphs (e)(1)(v)

through (viii), respectively;

c. New paragraph (e)(1)(i)

introductory text is added;

d. Newly redesignated paragraph

(e)(1)(viii) and paragraph (e)(2) are

revised;

e. Paragraph (e)(3) is removed;
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30401

f. Paragraphs (e)(4) through (e)(9) are

redesignated as paragraphs (e)(3)

through (e)(8) respectively; and

g. Newly redesignated paragraphs

(e)(3)(i) and (e)(4)(i) are revised. The

newly added and revised text reads as

follows:

§ 679.21 Prohibited species bycatch

management.

* * * * *

(b) * * *

(2) * * *

(ii) After allowing for sampling by an

observer, if an observer is aboard, sort

its catch immediately after retrieval of

the gear and, except as provided below,

return all prohibited species or parts

thereof to the sea immediately, with a

minimum of injury, regardless of its

condition. The following exceptions are

made:

(A) Salmon prohibited species catch

in the BSAI groundfish fisheries under

paragraph (c) of this section and

§ 679.26; and

(B) Salmon PSQ caught by catcher

vessels using trawl gear in the CDQ

fisheries under subpart C of this part.

(3) Rebuttable presumption. Except as

provided under paragraph (c) of this

section, § 679.26, or for salmon PSQ

retained by catcher vessels using trawl

gear in the CDQ fisheries, there will be

a rebuttable presumption that any

prohibited species retained on board a

fishing vessel regulated under this part

was caught and retained in violation of

this section.

* * * * *

(e) * * *

(1) * * *

(i) PSQ reserve. 7.5 percent of each

PSC limit set forth in paragraphs

(e)(1)(ii) through (v), (e)(1)(vii), and

(e)(1)(viii) of this section is allocated to

the groundfish CDQ program as PSQ

reserve. The PSQ reserve is not

apportioned by gear or fishery.

* * * * *

(viii) Non-chinook salmon. The PSC

limit of non-chinook salmon caught by

vessels using trawl gear during August

15 through October 14 in the CVOA is

42,000 fish.

(2) Nontrawl gear, halibut. (i) The PSC

limit of halibut caught while conducting

any nontrawl fishery for groundfish in

the BSAI during any fishing year is the

amount of halibut equivalent to 900 mt

of halibut mortality.

(ii) 7.5 percent of the nontrawl gear

halibut PSC limit set forth in paragraph

(e)(2)(ii) of this section is allocated to

the groundfish CDQ program as PSQ

reserve. The PSQ reserve is not

apportioned by gear or fishery.

(3) * * *

(i) General. NMFS, after consultation

with the Council and after subtraction of

PSQ reserve, will apportion each PSC

limit set forth in paragraphs (e)(1)(i)

through (vii) of this section into bycatch

allowances for fishery categories

defined in paragraph (e)(3)(iv) of this

section, based on each category’s

proportional share of the anticipated

incidental catch during a fishing year of

prohibited species for which a PSC limit

is specified and the need to optimize the

amount of total groundfish harvested

under established PSC limits.

* * * * *

(4) * * *

(i) General. NMFS, after consultation

with the Council and after subtraction of

PSQ reserve, may apportion the halibut

PSC limit for nontrawl gear set forth

under paragraph (e)(2)(i) of this section

into bycatch allowances for nontrawl

fishery categories defined under

paragraph (e)(4)(ii) of this section based

on each category’s proportional share of

the anticipated bycatch mortality of

halibut during a fishing year and the

need to optimize the amount of total

groundfish harvested under the

nontrawl halibut PSC limit. The sum of

all bycatch allowances of any prohibited

species will equal its PSC limit.

* * * * *

§ 679.21 [Amended]

9. In addition to the amendments set

forth above, § 679.21 is amended by

making the following changes:

a. In newly redesignated paragraph

(e)(1)(ii) introductory text, the reference

to paragraph (e)(1)(i)(A) is removed and

a reference to (e)(1)(iii)(A) is added in

its place.

b. In newly redesignated paragraph

(e)(1)(iii) introductory text, the reference

to (e)(1)(ii)(A) is removed and a

reference to (e)(1)(iii)(A) is added in its

place.

c. In newly redesignated paragraph

(e)(3)(i), the references to (e)(1)(i)

through (vii) are removed and references

to (e)(1)(ii) through (viii) are added in

their place.

d. In newly redesignated paragraph

(e)(3)(ii)(B)(2), the reference to (e)(1)(i) is

removed and a reference to (e)(1)(ii) is

added in its place.

10. In § 679.22, a new paragraph (h)

is added to read as follows:

§ 679.22 Closures.

* * * * *

(h) CDQ Fisheries. See § 679.7(d)(6)

through (10) for time and area closures

that apply to the CDQ fisheries once

salmon and crab PSQ amounts have

been reached.

11. In § 679.23, the headings of

paragraphs (e)(3)(i) and (ii) are revised,

and paragraph (e)(3)(iv) is added to read

as follows:

§ 679.23 Seasons.

* * * * *

(e) * * *

(3) * * *

(i) Halibut CDQ. * * *

(ii) Sablefish CDQ. * * *

* * * * *

(iv) Groundfish CDQ. Fishing for

groundfish CDQ species, other than

fixed gear sablefish CDQ under subpart

C of this part, is authorized from 0001

hours, A.l.t., January 1, through the end

of each fishing year, except as provided

in paragraph (c) of this section, and in

1998 when fishing for groundfish CDQ

species other than fixed gear sablefish is

authorized from 1200 hours, A.l.t.,

October 1, through the end of the fishing

year.

* * * * *

12. In § 679.28, paragraph (a) is

revised, and new paragraphs (c) through

(e) are added to read as follows:

§ 679.28 Equipment and operational

requirements for catch weight

measurement.

(a) Applicability. This section

contains the requirements for scales,

observer sampling stations, and bins for

volumetric estimates approved by

NMFS and requirements for scales

approved by the State of Alaska. This

section does not require any vessel or

processor to provide this equipment.

Such requirements appear elsewhere in

this part.

* * * * *

(c) Scales approved by the State of

Alaska. Scales used to weigh groundfish

catch that are also required to be

approved by the State of Alaska under

Alaska Statutes 45.75 must meet the

following requirements:

(1) Verification of approval. The scale

must display a valid State of Alaska

sticker indicating that the scale was

inspected and approved within the

previous 12 months.

(2) Visibility. The scale and scale

display must be visible simultaneously

to the observer. Observers, NMFS

personnel, or an authorized officer must

be allowed to observe the weighing of

fish on the scale and be able to read the

scale display at all times.

(3) Printed scale weights. Printouts of

the scale weight of each haul, set, or

delivery must be made available to

observers, NMFS personnel, or an

authorized officer at the time printouts

are generated and thereafter upon

request for the duration of the fishing

year. Printouts must be retained by the

operator or manager as specified in

§ 679.5(a)(15).
30402 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

(d) Observer sampling station—(1)

Accessibility. All of the equipment

required for an observer sampling

station must be available to the observer

at all times while a sampling station is

required and the observer is aboard the

vessel, except that the observer

sampling scale may be used by vessel

personnel to conduct material tests of

the scale used to weigh total catch

under paragraph (b)(3) of this section, as

long as the use of the observer’s

sampling scale by others does not

interfere with the observer’s sampling

duties.

(2) Location—(i) Motherships and

catcher/processors or catcher vessels

using trawl gear. The observer sampling

station must be located within 4 m of

the location from which the observer

samples unsorted catch. Clear,

unobstructed passage must be provided

between the observer sampling station

and the location where the observer

samples unsorted catch.

(ii) Vessels using nontrawl gear. The

observer sampling station must be

located within 5 m of the location where

fish are brought on board the vessel,

unless any location within this distance

is unsafe for the observer. Clear,

unobstructed passage must be provided

between the observer sampling station

and the location where the observer

samples unsorted catch. NMFS will

approve an alternative location if the

vessel owner submits a written proposal

describing the alternative location, the

reasons why a location within 5 m of

where fish are brought on board the

vessel is unsafe, and if the proposed

observer sampling station meets all

other applicable requirements of this

section.

(3) Minimum work space. The

observer must have a working area at

least 1.8 m wide by 2.5 m long,

including the observer’s sampling table,

for sampling and storage of fish to be

sampled. The observer must be able to

stand upright in the area in front of the

table and scale.

(4) Table. The observer sampling

station must include a table at least 0.6

m deep, 1.2 m wide and 0.9 m high and

no more than 1.1 m high. The entire

surface area of the table must be

available for use by the observer. Any

area used for the observer sampling

scale is in addition to the minimum

space requirements for the table. The

observer’s sampling table must be

secured to the floor or wall.

(5) Observer sampling scale. The

observer sampling station must include

an electronic motion-compensated

platform scale with a capacity of at least

50 kg located within 1 m of the

observer’s sampling table. The scale

must be approved by NMFS under

paragraph (b) of this section and must

meet the maximum permissible error

requirement specified in paragraph

(b)(3)(ii)(A) of this section when tested

by the observer.

(6) Other requirements. The sampling

station must include floor grating,

adequate lighting, and a hose that

supplies fresh or sea water to the

observer.

(7) Requirements for sampling catch.

On motherships and catcher/processors

using trawl gear, the conveyor belt

conveying unsorted catch must have a

removable board to allow fish to be

diverted from the belt directly into the

observer’s sampling baskets. The

diverter board must be located after the

scale used to weigh total catch so that

the observer can use this scale to weigh

large samples.

(8) Inspection of the observer

sampling station. Each observer

sampling station must be inspected and

approved by NMFS prior to its use for

the first time and then one time each

year within 12 months of the date of the

most recent inspection with the

following exceptions. If the observer

sampling station is moved or if the

space or equipment available to the

observer is reduced or removed, the

observer sampling station inspection

report issued under this section is no

longer valid, and the observer sampling

station must be reinspected and

approved by NMFS. Inspection of the

observer sampling station is in addition

to inspection of the at-sea scales by an

authorized scale inspector required at

paragraph (b)(2) of this section.

(i) How does a vessel owner arrange

for an observer sampling station

inspection? The time and place of the

inspection may be arranged by

submitting to NMFS a written request

for an inspection. Inspections will be

scheduled no later than 10 working days

after NMFS receives a complete

application for an inspection, including

the following information:

(A) Name and signature of the person

submitting the application, and the date

of the application.

(B) Street address, business address,

telephone number, and fax number of

the person submitting the application.

(C) Whether the vessel or processor

has received an observer sampling scale

inspection before and, if so, the date of

the most recent inspection report.

(D) Vessel name.

(E) Federal fishery permit number.

(F) Location of vessel where sampling

station inspection is requested to occur,

including street address and city.

(G) For catcher/processors using trawl

gear and motherships, a diagram drawn

to scale showing the location(s) where

all CDQ and PSQ will be weighed, the

location where observers will sample

unsorted catch, the location of the

observer sampling station as described

at paragraph (d) of this section,

including the observer sampling scale,

the name of the manufacturer, model of

the scale to weigh total catch, and the

observer sampling scale.

(H) For all other vessels, a diagram

drawn to scale showing the location(s)

where catch comes on board the vessel,

the location where observers will

sample unsorted catch, the location of

the observer sampling station, including

the observer sampling scale, and the

name of the manufacturer and model of

the observer sampling scale.

(I) For all vessels, a copy of the most

recent scale inspection report issued

under paragraph (b)(2) of this section.

(ii) Where will observer sampling

station inspections be conducted?

Inspections will be conducted on

vessels tied up at docks in Dutch

Harbor, Alaska, and in the Puget Sound

area of Washington State.

(iii) Observer sampling station

inspection report. An observer sampling

station inspection report, valid for 12

months from the date it is signed by

NMFS, will be issued to the vessel

owner if the observer sampling station

meets the requirements in this

paragraph (d). The vessel owner must

maintain a current observer sampling

station inspection report on board the

vessel at all times when the vessel is

required to provide an observer

sampling station approved for use under

this paragraph (d). The observer

sampling station inspection report must

be made available to the observer,

NMFS personnel, or to an authorized

officer upon request.

(e) Certified bins for volumetric

estimates of catch weight—

(1) Certification. The information

required in this paragraph (e) must be

prepared, dated, and signed by a

licensed engineer with no financial

interest in fishing, fish processing, or

fish tendering vessels. Complete bin

certification documents must be

submitted to the Regional Administrator

prior to harvesting or receiving

groundfish from a fishery in which

certified bins are required and must be

on board the vessel and available to the

observer at all times.

(2) Specifications—(i) Measurement

and marking. The volume of each bin

must be determined by accurate

measurement of the internal dimensions

of the bin. The internal walls of the bin

must be permanently marked and

numbered in 10-cm increments

indicating the level of fish in the bin in
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30403

cm. All marked increments and

numerals must be readable from the

outside of the bin through a viewing

port or hatch at all times. Marked

increments are not required on the wall

in which the viewing port is located,

unless such increments are necessary to

determine the level of fish in the bin

from another viewing port. Bins must be

lighted in a manner that allows marked

increments to be read from the outside

of the bin by an observer or authorized

officer. For bin certification documents

dated after July 6, 1998, the numerals at

the 10-cm increment marks must be at

least 4 cm high.

(ii) Viewing ports. Each bin must have

a viewing port or ports from which the

internal bin markings and numerals on

all walls of the bin can be seen from the

outside of the bin, except that bin

markings and numerals are not required

on the wall in which the viewing port

is placed, if that wall cannot be seen

from any other viewing port in the bin.

(3) Information required. For bin

certification documents submitted after

July 6, 1998, the person certifying the

bins must provide:

(i) The vessel name;

(ii) The date the engineer measured

the bins and witnessed the location of

the marked increments and numerals;

(iii) A diagram, to scale, of each bin

showing the location of the marked

increments on each internal wall of the

bin, the location, and dimensions of

each viewing port or hatch, and any

additional information needed to

estimate the volume of fish in the bin;

(iv) Tables indicating the volume of

each certified bin in cubic meters for

each 10-cm increment marked on the

sides of the bins;

(v) Instructions for determining the

volume of fish in each bin from the

marked increments and table; and

(vi) The person’s name and signature

and the date on which the completed

bin certification documents were

signed.

(4) Recertification. The bin’s volume

and the marked and numbered

increments must be recertified if the bin

is modified in a way that changes its

size or shape or if marking strips or

marked increments are moved or added.

(5) Operational requirements—(i)

Placement of catch in certified bins. All

catch must be placed in a bin certified

under this paragraph (e) to estimate total

catch weight prior to sorting.

Refrigerated seawater tanks may be used

for volumetric estimates only if the

tanks comply with all other

requirements of this paragraph (e). No

adjustments of volume will be made for

the presence of water in the bin or tank.

(ii) Prior notification. Vessel operators

must notify observers prior to any

removal of fish from or addition of fish

to each bin used for volumetric

measurements of catch so that an

observer may make bin volume

estimates prior to fish being removed

from or added to the bin. Once a

volumetric estimate has been made,

additional fish may not be added to the

bin until at least half the original

volume has been removed. Fish may not

be removed from or added to a bin used

for volumetric estimates of catch weight

until an observer indicates that bin

volume estimates have been completed

and any samples of catch required by

the observer have been taken.

(iii) Fish from separate hauls or

deliveries from separate harvesting

vessels may not be mixed in any bin

used for volumetric measurements of

catch.

(iv) The bins must not be filled in a

manner that obstructs the viewing ports

or prevents the observer from seeing the

level of fish throughout the bin.

13. Section 679.30 is revised to read

as follows:

§ 679.30 General CDQ regulations.

(a) Application procedure. The CDQ

program is a voluntary program.

Allocations of CDQ and PSQ are made

to CDQ groups and not to vessels or

processors fishing under contract with

any CDQ group. Any vessel or processor

harvesting or processing CDQ or PSQ

under a CDP must comply with all other

requirements of this part. In addition,

the CDQ group is responsible to ensure

that vessels and processors listed as

eligible on the CDQ group’s approved

CDP comply with all requirements of

this part while harvesting or processing

CDQ species. Allocations of CDQ and

PSQ are harvest privileges that expire

upon the expiration of the CDP. When

a CDP expires, further CDQ allocations

are not implied or guaranteed, and a

qualified applicant must re-apply for

further allocations on a competitive

basis with other qualified applicants.

The CDQ allocations provide the means

for CDQ groups to complete their CDQ

projects. A qualified applicant may

apply for CDQ and PSQ allocations by

submitting a proposed CDP to the State

during the CDQ application period that

is announced by the State. A proposed

CDP must include the following

information:

(1) Community development

information. Community development

information includes:

(i) Project description. A detailed

description of all proposed CDQ

projects, including the short-and longterm benefits to the qualified applicant

from the proposed CDQ projects. CDQ

projects should not be designed with the

expectation of CDQ allocations beyond

those requested in the proposed CDP.

(ii) Project schedule. A schedule for

the completion of each CDQ project

with measurable milestones for

determining the progress of each CDQ

project.

(iii) Employment. The number of

individuals to be employed through the

CDP projects, and a description of the

nature of the work and the career

advancement potential for each type of

work.

(iv) Community eligibility. A list of

the participating communities. Each

participating community must be listed

in Table 7 to this part or meet the

criteria for an eligible community under

§ 679.2.

(v) Community support. A

demonstration of each participating

community’s support for the qualified

applicant and the managing

organization through an official letter

approved by the governing body of each

such community.

(2) Managing organization

information. A proposed CDP must

include the following information about

the managing organization:

(i) Structure and personnel. A

description of the management structure

and key personnel of the managing

organization, such as resumes and

references, including the name, address,

fax number, and telephone number of

the qualified applicant’s CDQ

representative.

(ii) Management qualifications. A

description of how the managing

organization is qualified to carry out the

CDP projects in the proposed CDP, and

a demonstration that the managing

organization has the management,

technical expertise, and ability to

manage CDQ allocations and prevent

exceeding a CDQ or PSQ.

(iii) Legal relationship.

Documentation of the legal relationship

between the qualified applicant and the

managing organization (if the managing

organization is different from the

qualified applicant) clearly describing

the responsibilities and obligations of

each party as demonstrated through a

contract or other legally binding

agreement.

(iv) Board of directors. The name,

address, and telephone number of each

member of the board of directors of the

qualified applicant. If a qualified

applicant represents more than one

community, the board of directors of the

qualified applicant must include at least

one member from each of the

communities represented.
30404 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

(3) Business information. A proposed

CDP must include the following

business information:

(i) Business relationships. A

description of all business relationships

between the qualified applicant and all

individuals who have a financial

interest in a CDQ project or subsidiary

venture, including, but not limited to,

any arrangements for management and

audit control and any joint venture

arrangements, loans, or other

partnership arrangements, including the

distribution of proceeds among the

parties.

(ii) Profit sharing. A description of all

profit sharing arrangements.

(iii) Funding. A description of all

funding and financing plans.

(iv) General budget for implementing

the CDP. A general account of estimated

income and expenditures for each CDQ

project for the total number of calendar

years that the CDP is in effect.

(v) Financial statement for the

qualified applicant. The most recent

audited income statement, balance

sheet, cash flow statement, management

letter, and agreed upon procedures

report.

(vi) Organizational chart. A visual

representation of the qualified

applicant’s entire organizational

structure, including all divisions,

subsidiaries, joint ventures, and

partnerships. This chart must include

the type of legal entity for all divisions,

subsidiaries, joint ventures, and

partnerships; state of registration of the

legal entity; and percentage owned by

the qualified applicant.

(4) Request for CDQ and PSQ

allocations. A list of the percentage of

each CDQ reserve and PSQ reserve, as

defined at § 679.31(a) through (e), that is

being requested. The request for

allocations of CDQ and PSQ must

identify percentage allocations

requested for CDQ fisheries identified

by the primary target species of the

fishery as defined by the qualified

applicant and the gear types of the

vessels that will be used to harvest the

catch.

(5) Fishing plan for groundfish and

halibut CDQ fisheries. The following

information must be provided for all

vessels and processors that will be

harvesting or processing groundfish and

halibut CDQ.

(i) List of eligible vessels and

processors—(A) Vessels—(1)

Information required for all vessels. A

list of the name, Federal fisheries permit

number (if applicable), ADF&G vessel

number, LOA, gear type, and vessel type

(catcher vessel, catcher/processor, or

mothership) for each vessel that will be

used to catch or process CDQ. For each

vessel, report only the gear types and

vessel types that will be used while

CDQ fishing. Any CDQ vessel that is

exempt from the moratorium under

§ 679.4(c)(3)(v) must be identified as

such.

(2) Information required for observed

vessels using trawl or hook-and-line

gear and motherships taking deliveries

from these vessels. For each catcher/

processor and catcher vessel 60 ft (18.29

m) LOA or greater using trawl or hookand-line gear and not delivering

unsorted codends, or for each

mothership, the CDP must include the

following information that will be used

by NMFS to determine whether

sufficient observer coverage is provided

to sample each CDQ haul, set, or

delivery. Provide the information for

groundfish CDQ fishing as defined

under § 679.2 and provide separate

information by management area or

fishery if information differs among

management areas or fisheries.

(i) Number of CDQ observers that will

be aboard the vessel. For catcher/

processors using hook-and-line gear

proposing to carry only one CDQ

observer, the CDP must include vessel

logbook or observer data that

demonstrates that one CDQ observer can

sample each set for species composition

in one 12-hour shift per fishing day.

(ii) Average and maximum number of

hauls, sets, or pots that will be retrieved

on any given fishing day while

groundfish CDQ fishing.

(iii) For vessels using trawl gear, the

average and maximum total catch

weight for any given haul while

groundfish CDQ fishing.

(iv) For vessels using trawl gear, the

number of hours necessary to process

the average and maximum haul size

while groundfish CDQ fishing.

(v) For vessels using hook-and-line

gear, the average number of hooks in

each set and estimated time it will take

to retrieve each set while groundfish

CDQ fishing.

(vi) Whether any halibut CDQ will be

harvested by vessels groundfish CDQ

fishing.

(B) Shoreside processors or buying

stations. A list of the name, Federal

processor permit number, and location

of each shoreside processor or buying

station that is required to have a Federal

processor permit under § 679.4(f) and

will take deliveries of, or process, CDQ

catch.

(C) Buyers of halibut CDQ. A list of

processors or registered buyers of

halibut CDQ that are not required to

have a Federal processor permit under

§ 679.4(f), including the name of the

buyer or processor, mailing address,

telephone number, and location where

halibut CDQ will be landed.

(ii) Sources of data or methods for

estimating CDQ and PSQ catch. The

sources of data or methods that will be

used to determine catch weight of CDQ

and PSQ for each vessel or processor

proposed as eligible under the CDP. For

each vessel or processor, the CDP must

specify whether the NMFS’ standard

sources of data set forth at § 679.32(d)(2)

or some other alternative will be used.

For catcher vessels using nontrawl gear,

the CDP must also specify whether the

vessel will be retaining all groundfish

CDQ catch (Option 1) or will be

discarding some groundfish CDQ catch

at sea (Option 2). The qualified

applicant may propose the use of an

alternative method such as the sorting

and weighing of all catch by species on

processor vessels or using larger sample

sizes than could be collected by one

observer. NMFS will review the

proposal and approve it or notify the

qualified applicant in writing if the

proposed alternative does not meet

these requirements. The qualified

applicant may remove the vessel or

processor for which the alternative

method is proposed from the proposed

CDP to facilitate approval of the CDP

and add the vessel or processor to the

approved CDP by substantial

amendment at a later date. Alternatives

to the requirement for a certified scale

or an observer sampling station may not

be proposed. NMFS will review the

alternative proposal to determine if it

meets all of the following requirements:

(A) The alternative proposed must

provide equivalent or better estimates

than use of the NMFS standard data

source would provide and the estimates

must be independently verifiable;

(B) Each haul or set on an observed

vessel must be able to be sampled by an

observer for species composition;

(C) Any proposal to sort catch before

it is weighed must assure that the

sorting and weighing process will be

monitored by an observer; and

(D) The time required for the CDQ

observer to complete sampling, data

recording, and data communication

duties shall not exceed 12 hours in each

24-hour period and the CDQ observer is

required to sample no more than 9

hours in each 24-hour period.

(iii) Amendments to the list of eligible

vessels and processors. The list of

eligible vessels and processors may be

amended by submitting the information

required in paragraphs (a)(5)(i) and (ii)

of this section as an amendment to the

approved CDP. A technical amendment

may be used to remove any vessel from

a CDP, to add any vessel to a CDP if the

CDQ group will use NMFS’ standard
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30405

sources of data to determine CDQ and

PSQ catch for the vessel, or to add any

vessel to a CDP for which an alternative

method of determining CDQ and PSQ

catch has been approved by NMFS

under an approved CDP for another

CDQ group. A substantial amendment

must be used to add a vessel to an

approved CDP if the CDQ group submits

a proposed alternative method of

determining CDQ and PSQ catch for

NMFS review.

(6) CDQ planning—(i) Transition

plan. A proposed CDP must include an

overall plan and schedule for transition

from reliance on CDQ allocations to selfsufficiency in fisheries. The plan for

transition to self-sufficiency must be

based on the qualified applicant’s longterm revenue stream without CDQs.

(ii) Post-allocation plan. [Reserved]

(b) Public hearings on CDQ

application. When the CDQ application

period has ended, the State must hold

a public hearing to obtain comments on

the proposed CDPs from all interested

persons. The hearing must cover the

substance and content of proposed CDPs

so that the general public, particularly

the affected parties, have a reasonable

opportunity to understand the impact of

the proposed CDPs. The State must

provide reasonable public notification

of hearing date and location. At the time

of public notification of the hearing, the

State must make available for public

review all State materials pertinent to

the hearing.

(c) Council consultation. Before the

State sends its recommendations for

approval of proposed CDPs to NMFS,

the State must consult with the Council

and make available, upon request, the

proposed CDPs that are not part of the

State’s recommendations.

(d) Review and approval of proposed

CDPs. The State must transmit the

proposed CDPs and its

recommendations for approval of each

of the proposed CDPs to NMFS, along

with the findings and the rationale for

the recommendations, by October 15 of

the year prior to the first year of the

proposed CDP, except in 1998, when

CDPs for the 1998 through 2000

multispecies groundfish CDQs must be

submitted by July 6, 1998. The State

shall determine in its recommendations

for approval of the proposed CDPs that

each proposed CDP meets all applicable

requirements of this part. Upon receipt

by NMFS of the proposed CDPs and the

State’s recommendations for approval,

NMFS will review the proposed CDPs

and approve those that it determines

meet all applicable requirements. NMFS

shall approve or disapprove the State’s

recommendations within 45 days of

their receipt. In the event of approval of

the CDP, NMFS will notify the State in

writing that the proposed CDP is

approved by NMFS and is consistent

with all requirements for CDPs. If NMFS

finds that a proposed CDP does not

comply with the requirements of this

part, NMFS must so advise the State in

writing, including the reasons thereof.

The State may submit a revised

proposed CDP along with revised

recommendations for approval to

NMFS.

(e) Transfer. CDQ groups may request

that NMFS transfer CDQ allocations,

CDQ, PSQ allocations, or PSQ from one

group to another by each group filing an

appropriate amendment to its CDP.

Transfers of CDQ and PSQ allocations

must be in whole integer percentages,

and transfers of CDQ and PSQ must be

in whole integer amounts. If NMFS

approves both amendments, NMFS will

make the requested transfer(s) by

decreasing the account balance of the

CDQ group from which the CDQ or PSQ

species is transferred by the amount

transferred and by increasing the

account balance of the CDQ group

receiving the transferred CDQ or PSQ

species by the amount transferred.

NMFS will not approve transfers to

cover overages of CDQ or PSQ.

(1) CDQ allocation. CDQ groups may

request that NMFS transfer any or all of

one group’s CDQ allocation to another

by each group filing an amendment to

its CDP through the CDP substantial

amendment process set forth at

paragraph (g)(4) of this section. The

CDQ allocation will be transferred as of

January 1 of the calendar year following

the calendar year NMFS approves the

amendments of both groups and is

effective for the duration of the CDPs.

(2) CDQ. CDQ groups may request that

NMFS transfer any or all of one group’s

CDQ for a calendar year to another by

each group filing an appropriate

amendment to its CDP. If the amount to

be transferred is 10 percent or less of a

group’s initial CDQ amount for that

year, that group’s request may be made

through the CDP technical amendment

process set forth at paragraph (g)(5) of

this section. If the amount to be

transferred is greater than 10 percent of

a group’s initial CDQ amount for the

year, that group’s request must be made

through the CDP substantial amendment

process set forth at paragraph (g)(4) of

this section. The CDQ will be

transferred as of the date NMFS

approves the amendments of both

groups and is effective only for the

remainder of the calendar year in which

the transfer occurs.

(3) PSQ allocation. CDQ groups may

request that NMFS transfer any or all of

one group’s PSQ allocation to another

CDQ group through the CDP substantial

amendment process set forth at

paragraph (g)(4) of this section. Each

group’s request must be part of a request

for the transfer of a CDQ allocation, and

the requested amount of PSQ allocation

must be the amount reasonably required

for bycatch needs during the harvesting

of the CDQ. Requests for the transfer of

a PSQ allocation may be submitted to

NMFS from January 1 through January

31. Requests for transfers of a PSQ

allocation will not be accepted by

NMFS at other times of the year. The

PSQ allocation will be transferred as of

January 1 of the calendar year following

the calendar year NMFS approves the

amendments of both groups and is

effective for the duration of the CDPs.

(4) PSQ. CDQ groups may request that

NMFS transfer any or all of one group’s

PSQ for one calendar year to another by

each group filing an amendment to its

CDP through the CDP substantial

amendment process set forth at

paragraph (g)(4) of this section. Each

group’s request must be part of a request

for the transfer of CDQ, and the

requested amount of PSQ must be the

amount reasonably required for bycatch

needs during the harvesting of the CDQ.

Requests for the transfer of PSQ may be

submitted to NMFS from January 1

through January 31. Requests for

transfers of PSQ will not be accepted by

NMFS at other times of the year. The

PSQ will be transferred as of the date

NMFS approves the amendments of

both groups and is effective only for the

remainder of the calendar year in which

the transfer occurs.

(f) CDQ group responsibilities. A CDQ

group’s responsibilities include, but are

not limited to, the following:

(1) Direct and supervise all activities

of the managing organization;

(2) Maintain the capability to

communicate with all vessels harvesting

its CDQ and PSQ at all times;

(3) Monitor the catch of each CDQ or

PSQ;

(4) Submit the CDQ catch report

described at § 679.5(n)(2);

(5) Ensure that no CDQ, halibut PSQ,

or crab PSQ is exceeded;

(6) Ensure that the CDQ group’s CDQ

harvesting vessels and CDQ processors

will:

(i) Provide observer coverage,

equipment, and operational

requirements for CDQ catch monitoring;

(ii) Provide for the communication of

observer data from their vessels to

NMFS and the CDQ representative;

(iii) Maintain contact with the CDQ

group for which it is harvesting CDQ

and PSQ;
30406 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

(iv) Cease fishing operations when

requested by the CDQ group; and

(v) Comply with all requirements of

this part while harvesting or processing

CDQ species.

(7) Comply with all requirements of

this part.

(g) Monitoring of CDPs—(1) Annual

progress report. (i) The State must

submit to NMFS, by October 31 of each

year, an annual progress report for the

previous calendar year for each CDP.

(ii) Annual progress reports must be

organized on a project-by-project basis

and include information for each CDQ

project in the CDP describing how each

scheduled milestone in the CDP has

been met, and an estimation by the State

of whether each of the CDQ projects in

the CDP is likely to be successful.

(iii) The annual report must include a

description by the State of any problems

or issues in the CDP that the State

encountered during the annual report

year.

(2) Annual budget report. (i) Each

CDQ group must submit to NMFS an

annual budget report by December 15

preceding the year for which the annual

budget applies.

(ii) An annual budget report is a

detailed estimate of the income from the

CDQ project and of the expenditures for

each subsidiary, division, joint venture,

partnership, investment activity, or CDQ

project as described in paragraph

(a)(1)(i) of this section for a calendar

year. A CDQ group must identify the

administrative costs for each CDQ

project. The CDQ group’s total

administrative costs will be considered

a separate CDQ project.

(iii) An annual budget report is

approved upon receipt by NMFS, unless

disapproved by NMFS in writing by

December 31. If disapproved, the annual

budget report will be returned to the

CDQ group for revision and resubmittal

to NMFS.

(3) Annual budget reconciliation

report. A CDQ group must reconcile its

annual budget by May 30 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 CDQ project that is described in

paragraph (a)(1)(i) of this section.

(4) Substantial amendments. A CDP is

a working business plan and must be

kept up to date.

(i) Substantial amendments to a CDP

require a written request by the CDQ

group to the State and NMFS for

approval of the amendment. The State

must forward the amendment to NMFS

with a recommendation as to whether it

should be approved.

(ii) NMFS will notify the State in

writing of the approval or disapproval of

the amendment within 30 days of

receipt of both the amendment and the

State’s recommendation. Except for

substantial amendments for the transfer

of CDQ and PSQ, which are effective

only for the remainder of the calendar

year in which the transfer occurs (see

paragraphs (e)(2) and (4) of this section),

once a substantial amendment is

approved by NMFS, the amendment

will be effective for the duration of the

CDP.

(iii) If NMFS determines that the CDP,

if changed, would no longer meet the

requirements of this subpart, NMFS will

notify the State in writing of the reasons

why the amendment cannot be

approved.

(iv) For the purposes of this section,

substantial amendments are defined as

changes in a CDP, including, but not

limited to:

(A) Any change in the list of

communities comprising the CDQ group

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.

(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.

(F) A change in the contractual

agreement(s) between the CDQ group

and its harvesting or processing partner

or a change in a CDP project, if such

change is deemed by the State or NMFS

to be a material change.

(G) Any transfer of a CDQ allocation,

PSQ allocation, PSQ, or a transfer of

more than 10 percent of a CDQ.

(H) The addition of a vessel to a CDP

if the CDQ group submits a proposed

alternative method of determining CDQ

and PSQ catch under paragraph (a)(5)(ii)

of this section for NMFS review.

(v) The request for approval of a

substantial 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 a

substantial amendment.

(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 revised

pages of the CDP for replacement in the

CDP binder. The revised pages must

have the revision date noted, with the

page number on all affected pages. The

table of contents may also need to be

revised to reflect any changes in

pagination.

(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

this subpart. Only those CDQ

regulations that are affected by the

proposed amendment need to be

discussed.

(5) Technical amendments. Any

change to a CDP that is not considered

a substantial amendment under

paragraph (g)(4)(iv) of this section is a

technical amendment.

(i) The CDQ group must notify the

State in writing of any technical

amendment. Such notification must

include a copy of the pages of the CDP

that would be revised by the

amendment, with the text highlighted to

show the proposed deletions and

additions, and a copy of the CDP pages

as they would be revised by the

proposed amendment for insertion into

the CDP binder. All revised CDP pages

must include the revision date,

amendment identification number, and

CDP page number. The table of contents

may also need to be revised to reflect

any changes in pagination.

(ii) The State must forward the

technical amendment to NMFS with its

recommendations for approval or

disapproval of the amendment. A

technical amendment is approved by

NMFS and is effective when, after

review, NMFS notifies the State in

writing of the technical amendment’s

receipt and approval.

(h) Suspension or termination of a

CDP. An annual progress report,

required under paragraph (g)(1) of this

section, will be used by the State to

review each CDP to determine whether

the CDP, CDQ, and PSQ allocations

thereunder should be continued,

decreased, partially suspended,

suspended, or terminated under the

following circumstances:

(1) If the State determines that the

CDP will successfully meet its goals and

objectives, the CDP may continue

without any Secretarial action.

(2) If the State recommends to NMFS

that an allocation be decreased, the

State’s recommendation for decrease
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30407

will be deemed approved if NMFS does

not notify the State in writing within 30

days of receipt of the State’s

recommendation.

(3) If the State determines that a CDP

has not successfully met its goals and

objectives or appears unlikely to become

successful, the State may submit a

recommendation to NMFS that the CDP

be partially suspended, suspended, or

terminated. The State must set out, in

writing, the reasons for recommending

suspension or termination of the CDP.

(4) After review of the State’s

recommendation and reasons thereof,

NMFS will notify the Governor, in

writing, of approval or disapproval of

the recommendation within 30 days of

its receipt. In the case of suspension or

termination, NMFS will publish

notification in the Federal Register,

with reasons thereof.

14. In § 679.31, the section heading

and paragraph (e) are revised, and a new

paragraph (g) is added to read as

follows:

§ 679.31 CDQ reserves.

* * * * *

(e) PSQ reserve. (See § 679.21(e)(1)(i)

and (e)(2)(ii)).

* * * * *

(g) Non-specific CDQ reserve.

Annually, NMFS will apportion 15

percent of each squid, arrowtooth

flounder, and ‘‘other species’’ CDQ for

each CDQ group to a non-specific CDQ

reserve. A CDQ group’s non-specific

CDQ reserve must be for the exclusive

use of that CDQ group. A release from

the non-specific CDQ reserve to the

CDQ group’s squid, arrowtooth

flounder, or ‘‘other species’’ CDQ is a

technical amendment as described in

§ 679.30(g)(5). The technical

amendment must be approved before

harvests relying on CDQ transferred

from the non-specific CDQ reserve may

be conducted.

15. Section 679.32 is revised to read

as follows:

§ 679.32 Groundfish and halibut CDQ

catch monitoring.

(a) Applicability. (1) The CDQ group

and the operator or manager of a buying

station, the operator of a vessel, and the

manager of a shoreside processor must

comply with the requirements of this

section for all CDQ and PSQ caught

while groundfish CDQ fishing as

defined at § 679.2, with the exceptions

listed in paragraphs (a)(2) and (a)(3) of

this section. In addition, the CDQ group

is responsible for ensuring that vessels

and processors listed as eligible on the

CDQ group’s approved CDP comply

with all requirements of this section

while harvesting or processing CDQ

species.

(2) Pollock CDQ fishing in 1998

(applicable through December 31, 1998).

Regulations governing the catch of

pollock CDQ while pollock CDQ fishing

as defined in § 679.2 in 1998 are in

paragraph (e) of this section. The catch

of pollock by vessels that are not

pollock CDQ fishing as defined in

§ 679.2 will not accrue against the

pollock CDQ in 1998.

(3) Fixed gear sablefish and halibut

CDQ fishing in 1998 (applicable through

December 31, 1998). Regulations

governing the catch of sablefish and

halibut CDQ by vessels using fixed gear

in 1998 are in paragraph (f) of this

section.

(b) PSQ catch. Time and area closures

required once a CDQ group has reached

its salmon PSQ or crab PSQ are listed

in § 679.7(d)(7) through (10). The catch

of salmon or crab by vessels using other

than trawl gear does not accrue to the

PSQ for these species. The discard of

halibut by vessels using pot or jig gear

will not accrue to the halibut PSQ if this

bycatch has been exempted from the

halibut PSC limit under § 679.21(e)(5) in

the annual specifications published in

the Federal Register.

(c) Requirements for vessels and

processors. In addition to complying

with the minimum observer coverage

requirements at § 679.50(c)(4), operators

of vessels groundfish CDQ fishing and

managers or operators of shoreside

processing plants or buying stations

taking deliveries from vessels

groundfish CDQ fishing must comply

with the following requirements:

(1) Catcher vessels without an

observer. (i) Operators of catcher vessels

less than 60 ft (18.29 m) LOA must

retain all groundfish CDQ, halibut CDQ,

and salmon PSQ until it is delivered to

a processor that meets the requirements

of paragraph (c)(3) or (c)(4) of this

section. All halibut PSQ and crab PSQ

must be discarded at sea. Operators of

catcher vessels using trawl gear must

report the at-sea discards of halibut PSQ

or crab PSQ on the CDQ delivery report.

Operators of catcher vessels using

nontrawl gear must report the at-sea

discards of halibut PSQ on the CDQ

delivery report, unless exempted from

accounting for halibut PSQ under

paragraph (b) of this section.

(ii) Catcher vessels delivering

unsorted codends. Operators of catcher

vessels delivering unsorted codends to

trawl catcher/processors or motherships

must retain all CDQ and PSQ species

and deliver them to a catcher/processor

or mothership that meets the

requirements of paragraph (c)(4) of this

section.

(2) Catcher vessels with observers.

Operators of catcher vessels equal to or

greater than 60 ft (18.29 m) LOA must

comply with the following

requirements:

(i) If using trawl gear, the vessel

operator must:

(A) Retain all CDQ species and

salmon PSQ until they are delivered to

a processor that meets the requirements

of paragraph (c)(3) or (c)(4) of this

section;

(B) Retain all halibut and crab PSQ in

a bin or other location until it is counted

and sampled by a CDQ observer; and

(C) Provide space on the deck of the

vessel for the CDQ observer to sort and

store catch samples and a place from

which to hang the observer sampling

scale.

(ii) If using nontrawl gear, the vessel

operator must either:

(A) Option 1: Retain all CDQ species.

Retain all CDQ species until they are

delivered to a processor that meets the

requirements of paragraph (c)(3) or (c)(4)

of this section and have all of the

halibut PSQ counted by the CDQ

observer and sampled for length or

average weight; or

(B) Option 2: Discard some CDQ

species at sea. May discard some CDQ

species at sea if the following

requirements are met:

(1) Observer sampling station. The

vessel owner provides an observer

sampling station that complies with

§ 679.28(d) so that the CDQ observer can

accurately determine the average weight

of discarded CDQ species. A valid

observer sampling station inspection

report described at § 679.28(d)(8) must

be on board the vessel at all times when

a sampling station is required; and

(2) Species composition. Each CDQ

set on vessels using hook-and-line gear

is sampled for species composition by a

CDQ observer.

(3) Shoreside processors and buying

stations. The operator of a buying

station or the manager of a shoreside

processor must comply with all of the

following requirements:

(i) Prior notice to observer of

offloading schedule. Notify the CDQ

observer of the offloading schedule of

each groundfish CDQ delivery at least 1

hour prior to offloading to provide the

CDQ observer an opportunity to monitor

the sorting and weighing of the entire

delivery.

(ii) CDQ and PSQ by weight. Sort and

weigh on a scale approved by the State

of Alaska under § 679.28(c) all

groundfish and halibut CDQ or PSQ by

species or species group.

(iii) PSQ by number. Sort and count

all salmon and crab PSQ.
30408 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

(iv) CDQ and PSQ sorting and

weighing. Sorting and weighing of CDQ

and PSQ must be monitored by a CDQ

observer.

(v) CDQ delivery report. Submit a

CDQ delivery report described at

§ 679.5(n)(1) for each delivery from

vessels groundfish CDQ fishing as

defined at § 679.2.

(4) Catcher/processors and

motherships. The operator of a catcher/

processor or a mothership must comply

with the following requirements:

(i) Prior notice to observer of CDQ

catch. Notify the CDQ observer(s) before

CDQ catch is brought onboard the vessel

and notify the CDQ observer(s) of the

CDQ group and CDQ number associated

with the CDQ catch.

(ii) Observer sampling station.

Provide an observer sampling station as

described at § 679.28(d). A valid

observer sampling station inspection

report described at § 679.28(d)(8) must

be on board the vessel at all times when

a sampling station is required.

(iii) Catcher/processors using trawl

gear and motherships. The operator of

a catcher/processor using trawl gear or

of a mothership must weigh all catch on

a scale that complies with the

requirements of § 679.28(b). A valid

scale inspection report described at

§ 679.28(b)(2) must be on board the

vessel at all times when a scale is

required. Catch from each CDQ haul

must be weighed separately. Catch must

not be sorted before it is weighed,

unless a provision for doing so is

approved by NMFS for the vessel in the

CDP. Each CDQ haul must be sampled

by a CDQ observer for species

composition and the vessel operator

must allow CDQ observers to use any

scale approved by NMFS to weigh

partial CDQ haul samples.

(iv) Catcher/processors using

nontrawl gear. Each CDQ set on a vessel

using hook-and-line gear must be

sampled by a CDQ observer for species

composition and average weight.

(d) Recordkeeping and reporting—(1)

Catch record. The operator or manager

of a buying station and the manager of

a shoreside processor must submit to

NMFS the CDQ delivery report required

in § 679.5(n)(1). The CDQ representative

must submit to NMFS the CDQ catch

report required in § 679.5(n)(2).

Additionally, all other applicable

requirements in § 679.5 for groundfish

fishing must be met.

(2) Verification of CDQ and PSQ catch

reports. CDQ groups may specify the

sources of data listed below as the

sources they will use to determine CDQ

and PSQ catch on the CDQ catch report

by specifying ‘‘NMFS standard sources

of data’’ in their CDP. In the case of a

catcher vessel using nontrawl gear, the

CDP must specify whether the vessel

will be retaining all groundfish CDQ

(Option 1) or discarding some

groundfish CDQ species at sea (Option

2). CDQ species may be discarded at sea

by these vessels only if the requirements

of paragraph (c)(2)(ii)(B) of this section

are met. NMFS will use the following

sources to verify the CDQ catch reports,

unless an alternative catch estimation

procedure in the CDP is approved by

NMFS under § 679.30(a)(5)(ii).

(i) Catcher vessels less than 60 ft

(18.29 m) LOA. The weight or numbers

of all CDQ and PSQ species will be the

same as the information on the CDQ

delivery report if all CDQ species and

salmon PSQ are retained on board the

vessel, delivered to a shoreside

processor listed as eligible in the CDP,

and sorted and weighed in compliance

with paragraph (c)(3) of this section.

(ii) Catcher vessels delivering

unsorted codends. The weight and

numbers of CDQ and PSQ species will

be determined by applying the species

composition sampling data collected for

each CDQ haul by the CDQ observer on

the mothership to the total weight of

each CDQ haul as determined by

weighing all catch from each CDQ haul

on a scale approved under § 679.28(b).

(iii) Observed catcher vessels using

trawl gear. The weight of halibut and

numbers of crab PSQ discarded at sea

will be determined by using the CDQ

observer’s sample data. The weight or

numbers of all groundfish CDQ and

salmon PSQ will be the same as the

information submitted on the CDQ

delivery report if all CDQ species and

salmon PSQ are retained on board the

vessel until delivered to a processor

listed as eligible in the CDP, and sorted

and weighed in compliance with

paragraph (c)(3) of this section.

(iv) Observed catcher vessels using

nontrawl gear—(A) Option 1. The

weight of halibut PSQ discarded at sea

will be determined by using the CDQ

observer’s sample data. The weight of

all groundfish CDQ will be the same as

the information submitted on the CDQ

delivery report if all CDQ species are

retained on board the vessel until

delivered to a processor, and sorted and

weighed in compliance with paragraph

(c)(3) of this section (Option 1); or

(B) Option 2. The weight of halibut

PSQ and all groundfish CDQ species

will be determined by applying the CDQ

observer’s species composition

sampling data to the estimate of total

catch weight if any CDQ species are

discarded at sea.

(v) Catcher/processors using trawl

gear and motherships. The weight and

numbers of CDQ and PSQ species will

be determined by applying the CDQ

observer’s species composition

sampling data for each CDQ haul to the

total weight of the CDQ haul as

determined by weighing all catch from

each CDQ haul on a scale certified

under § 679.28(b).

(vi) Catcher/processors using

nontrawl gear. The weight of halibut

PSQ and all groundfish CDQ species

will be determined by applying the CDQ

observer’s species composition

sampling data to the estimate of total

catch weight, if any CDQ species are

discarded at sea.

(e) Pollock CDQ (applicable through

December 31, 1998)—(1) Applicability.

The owner or operator of a vessel

pollock CDQ fishing as defined at

§ 679.2 and the owner or operator of a

processor taking deliveries from vessels

pollock CDQ fishing must comply with

the requirements of this paragraph (e).

(2) Catch of non-pollock. The catch of

all non-pollock species for which a TAC

or PSC limit is specified will accrue

against the TACs and PSC limits for

moratorium groundfish species. The

owner or operator of a vessel that is

pollock CDQ fishing and the owner or

operator of a processor taking deliveries

from vessels that are pollock CDQ

fishing must comply with regulations

governing maximum retainable bycatch

amounts and prohibited species status

in the moratorium groundfish fisheries

at § 679.20(d)(1)(iii).

(3) Recordkeeping and reporting. The

CDQ representative, the operator or

manager of a buying station, the

operator of a vessel, and the manager of

a shoreside processor must submit all

applicable reports in § 679.5, including

the CDQ delivery report and the CDQ

catch report. Catch from the pollock

CDQ fisheries must be identified

separately from catch in other CDQ

fisheries on the CDQ catch report.

Harvest of species other than pollock in

the pollock CDQ fisheries must not be

reported on the CDQ catch report.

(4) Observer coverage. Two observers

are required on all catcher/processors

and motherships harvesting, processing,

or taking deliveries of pollock CDQ; one

observer is required on all catcher

vessels harvesting pollock CDQ; and one

observer is required in a shoreside

processing plant while pollock CDQ is

being delivered, sorted, or processed.

(5) Estimation of the weight of pollock

CDQ—(i) Shoreside processors and

buying stations. All pollock CDQ

delivered to a shoreside processor or

buying station must be weighed on a

scale approved by the State of Alaska

under § 679.28(c). The manager of each

shoreside processor or buying station

must notify the observer of the
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30409

offloading schedule of each pollock

CDQ delivery at least 1 hour prior to

offloading to provide the observer an

opportunity to monitor the weighing of

the entire delivery.

(ii) Motherships and catcher/

processors. Operators of motherships

and catcher/processors must provide

holding bins and comply with the

operational requirements at § 679.28(e)

in order for volumetric estimates of total

catch weight to be made.

(f) Sablefish and halibut CDQ

fisheries (applicable through December

31, 1998)—(1) Applicability. The owner

or operator of a vessel or processor

harvesting or accepting deliveries of

fixed gear sablefish or halibut CDQ in

1998 must comply with the

requirements of this paragraph (f).

(2) Catch of other groundfish. All

groundfish for which a TAC is specified

and all prohibited species caught while

fixed gear sablefish and halibut CDQ

fishing will accrue against the TACs and

PSC limits for moratorium groundfish

species. Regulations governing

maximum retainable bycatch amounts

and prohibited species status in the

moratorium groundfish fisheries at

§ 679.20(d)(1)(iii) must be complied

with while fixed gear sablefish and

halibut CDQ fishing.

(3) Permits. The managing

organization responsible for carrying out

an approved CDP must have a halibut

and/or sablefish CDQ permit issued by

the Regional Administrator. A copy of

the halibut and/or sablefish CDQ permit

must be carried on any fishing vessel

operated by, or for, the managing

organization and be made available for

inspection by an authorized officer.

Such halibut and/or sablefish CDQ

permit is non-transferable and is

effective for the duration of the CDP or

until revoked, suspended, or modified.

(4) CDQ cards. All individuals named

on an approved CDP application must

have a valid halibut and/or sablefish

CDQ card issued by the Regional

Administrator before landing any

halibut and/or sablefish. Each halibut

and/or sablefish CDQ card will identify

a CDQ permit number and the

individual authorized by the managing

organization to land halibut and/or

sablefish for debit against its CDQ

allocation.

(5) Alteration. No person may alter,

erase, or mutilate a halibut and/or

sablefish CDQ permit, card, registered

buyer permit, or any valid and current

permit or document issued under this

part. Any such permit, card, or

document that has been intentionally

altered, erased, or mutilated is invalid.

(6) Landings. Halibut and/or sablefish

harvested pursuant to an approved CDP

may be landed only by a person with a

valid halibut and/or sablefish CDQ card,

delivered only to a person with a valid

registered buyer permit, and reported in

compliance with § 679.5(l)(1) and (l)(2).

(7) Recordkeeping and reporting.

Vessels and processors with Federal

fisheries or processor permits under

§ 679.4(f) must report all catch of

groundfish, including sablefish CDQ,

and prohibited species from the fixed

gear sablefish and halibut CDQ fisheries

on logbooks and weekly production

reports required under § 679.5.

§§ 679.33 and 679.34 [Removed]

16. Sections 679.33 and 679.34 are

removed.

17. In § 679.50, the section heading

and the last sentence of paragraph (a)

are revised, and paragraphs (c)(4), (d)(4),

(h)(1)(i)(D), and (h)(1)(i)(E) are added to

read as follows:

§ 679.50 Groundfish Observer Program.

(a) * * * Observer coverage for the

CDQ fisheries obtained in compliance

with paragraphs (c)(4) and (d)(4) of this

section may not be used to comply with

observer coverage requirements for nonCDQ groundfish fisheries specified in

this section.

* * * * *

(c) Observer requirements for vessels.

* * *

(4) Groundfish CDQ fisheries. Except

as provided for under § 679.32(e), the

owner or operator of a vessel groundfish

CDQ fishing as defined at § 679.2 must

comply with the following minimum

observer coverage requirements each

day that the vessel is used to harvest,

transport, process, deliver, or take

deliveries of CDQ or PSQ species. The

time required for the CDQ observer to

complete sampling, data recording, and

data communication duties shall not

exceed 12 hours in each 24-hour period

and the CDQ observer is required to

sample no more than 9 hours in each

24-hour period.

(i) Motherships or catcher/processors

using trawl gear. A mothership or

catcher/processor using trawl gear must

have at least two CDQ observers as

described at paragraphs (h)(1)(i)(D) and

(E) of this section aboard the vessel, at

least one of whom must be certified as

a lead CDQ observer.

(ii) Catcher/processors using hookand-line gear. A catcher/processor using

hook-and-line gear must have at least

two CDQ observers as described at

paragraphs (h)(1)(i)(D) and (E) of this

section aboard the vessel, unless NMFS

approves a CDP authorizing the vessel

to carry only one CDQ observer. At least

one of the CDQ observers must be

certified as a lead CDQ observer. A CDP

authorizing the vessel to carry only one

lead CDQ observer may be approved by

NMFS if the CDQ group supplies vessel

logbook or observer data that

demonstrates that one CDQ observer can

sample each CDQ set for species

composition in one 12-hour shift per

fishing day. NMFS will not approve a

CDP that would require the observer to

divide a 12-hour shift into shifts of less

than 6 hours.

(iii) Catcher/processors using pot

gear. A catcher/processor using pot gear

must have at least one lead CDQ

observer as described at paragraph

(h)(1)(i)(E) of this section aboard the

vessel.

(iv) Catcher vessel. A catcher vessel

equal to or greater than 60 ft (18.29 m)

LOA, except a catcher vessel that

delivers only unsorted codends to a

processor or another vessel, must have

at least one lead CDQ observer as

described at paragraph (h)(1)(i)(E) of this

section aboard the vessel.

(d) Observer requirements for

shoreside processors. * * *

(4) Groundfish CDQ fisheries. Each

shoreside processor required to have a

Federal processor permit under

§ 679.4(f) and taking deliveries of CDQ

or PSQ from vessels groundfish CDQ

fishing as defined at § 679.2 must have

at least one lead CDQ observer as

described at paragraph (h)(1)(i)(E) of this

section present at all times while CDQ

is being received or processed. The time

required for the CDQ observer to

complete sampling, data recording, and

data communication duties shall not

exceed 12 hours in each 24-hour period,

and the CDQ observer is required to

sample no more than 9 hours in each

24-hour period.

* * * * *

(h) * * *

(1) * * *

(i) * * *

(D) For purposes of the groundfish

CDQ fisheries, a NMFS-certified CDQ

observer must meet the following

requirements.

(1) Be a prior observer in the

groundfish fisheries off Alaska who has

completed at least 60 days of observer

data collection.

(2) Receive the rating of 1 for ‘‘meets

expectations’’ or 2 for ‘‘exceptional’’ by

NMFS for his or her most recent

deployment.

(3) Successfully complete a NMFSapproved CDQ observer training and/or

briefing as prescribed by NMFS and

available from the Observer Program

Office.

(4) Comply with all of the other

requirements of this section.

(E) In addition to the requirements in

paragraph (h)(1)(i)(D) of this section, to
30410 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

be certified as a ‘‘lead CDQ observer’’,

an observer must meet the following

requirements.

(1) A ‘‘lead CDQ observer’’ on a

catcher/processor using trawl gear or a

mothership must have completed two

observer cruises (contracts) and sampled

at least 100 hauls on a catcher/processor

using trawl gear or a mothership.

(2) A ‘‘lead CDQ observer’’ on a

catcher vessel using trawl gear must

have completed two observer cruises

(contracts) and sampled at least 50 hauls

on a catcher vessel using trawl gear.

(3) A ‘‘lead CDQ observer’’ on a vessel

using nontrawl gear must have

completed two observer cruises

(contracts) of at least 10 days each and

sampled at least 60 sets on a vessel

using nontrawl gear.

(4) A ‘‘lead CDQ observer’’ in a

shoreside processing plant must have

observed at least 30 days in a shoreside

processing plant.

* * * * *

[FR Doc. 98–14596 Filed 6–3–98; 8:45 am]

BILLING CODE 3510–22–P

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulations No. 4]

RIN 0960–AE83

Federal Old-Age, Survivors and

Disability Insurance; Determining

Disability and Blindness; Extension of

Expiration Dates for Several Body

System Listings

AGENCY: Social Security Administration.

ACTION: Final rule.

SUMMARY: The Social Security

Administration (SSA) adjudicates

claims at the third step of its sequential

process for evaluating disability using

the Listing of Impairments (the listings)

under the Social Security and

supplemental security income (SSI)

programs. This rule extends the dates on

which several body system listings will

no longer be effective. We have made no

revisions to the medical criteria in these

listings; they remain the same as they

now appear in the Code of Federal

Regulations. These extensions will

ensure that we continue to have medical

evaluation criteria in the listings to

adjudicate claims for disability based on

impairments in these body systems at

step three of our sequential evaluation

process.

EFFECTIVE DATE: This regulation is

effective June 4, 1998.

FOR FURTHER INFORMATION CONTACT:

Acting Regulations Officer, Social

Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235, (410)

965–3632. For information on eligibility

or filing for benefits, call our national

toll-free number, 1–800–772–1213.

SUPPLEMENTARY INFORMATION: We use

the listings in appendix 1 (Listing of

Impairments) to subpart P of part 404 at

the third step of the sequential

evaluation process to evaluate claims

filed by adults and individuals under

age 18 for benefits based on disability

under the Social Security and SSI

programs. The listings are divided into

parts A and B. We use the criteria in

part A to evaluate impairments of

adults. We use the criteria in part B first

to evaluate impairments of individuals

under age 18. If those criteria do not

apply, then the medical criteria in part

A will be used.

When we published revised listings in

1985 and subsequently, we indicated

that medical advances in disability

evaluation and treatment and program

experience would require that the

listings be periodically reviewed and

updated. Accordingly, we established

dates ranging from 3 to 8 years on which

the various body system listings would

no longer be effective unless extended

by the Secretary of Health and Human

Services or revised and promulgated

again. Effective March 31, 1995, the

authority to issue regulations was

transferred to the Commissioner of

Social Security by section 102 of Public

Law 103–296, the Social Security

Independence and Program

Improvements Act of 1994.

In this final rule, we are extending the

dates on which several body system

listings will no longer be effective to

July 1, 1999. These body system listings

are: Growth Impairment (100.00),

Special Senses and Speech (2.00 and

102.00), Multiple Body Systems

(110.00), Neurological (11.00 and

111.00), and Immune System (14.00 and

114.00).

We last published final rules setting

forth the current expiration date for the

Multiple Body Systems and the Immune

System on July 2, 1993 (58 FR 36008).

We last extended the dates on which the

other body system listings would no

longer be effective in final rules

published as follows:

December 6, 1993 (58 FR 64121):

Special Senses and Speech and

Neurological.

December 6, 1996 (61 FR 64615):

Growth Impairment.

We believe that the requirements in

these listings are still valid for our

program purposes. Specifically, if we

find that an individual has an

impairment that meets the statutory

duration requirement and also meets or

is medically equivalent in severity to an

impairment in the listings or

functionally equivalent to the listings in

SSI claims based on disability filed by

individuals under age 18, we will find

that the individual is disabled at the

third step of the sequential evaluation

process. Nevertheless, we have decided

to review, over the next 12 months, the

need to revise these listings and have,

therefore, decided to extend the dates

on which each of these listings will no

longer be effective to July 1, 1999.

Regulatory Procedures

Pursuant to section 702(a)(5) of the

Social Security Act, 42 U.S.C. 902(a)(5),

as amended by section 102 of Public

Law 103–296, SSA follows the

Administrative Procedure Act (APA)

rulemaking procedures specified in 5

U.S.C. 553 in the development of its

regulations. The APA provides

exceptions to its notice and public

comment procedures when an agency

finds there is good cause for dispensing

with such procedures on the basis that

they are impracticable, unnecessary, or

contrary to the public interest. We have

determined that, under 5 U.S.C.

553(b)(B), good cause exists for

dispensing with the notice and public

comment procedures in this case. Good

cause exists because this regulation only

extends the date on which these body

system listings will no longer be

effective. It makes no substantive

changes to the listings. The current

regulations expressly provide that the

listings may be extended, as well as

revised and promulgated again.

Therefore, opportunity for prior

comment is unnecessary, and we are

issuing this regulation as a final rule.

In addition, we find good cause for

dispensing with the 30-day delay in the

effective date of a substantive rule,

provided for by 5 U.S.C. 553(d). As

explained above, we are not making any

substantive changes in these body

system listings. However, without an

extension of the expiration dates for

these listings, we will lack regulatory

guidelines for assessing impairments in

these body systems at the third step of

the sequential evaluation processes after

the current expiration dates of the

listings. In order to ensure that we

continue to have regulatory criteria for

assessing impairments under these

listings, we find that it is in the public

interest to make this rule effective upon

publication.

Executive Order 12866

We have consulted with the Office of

Management and Budget (OMB) and

determined that this rule does not meet