[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Proposed Rules]
[Pages 15420-15428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7557]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0811201490-9322-02]
RIN 0648-AX42


Fisheries of the Exclusive Economic Zone Off Alaska; Central Gulf 
of Alaska Rockfish Program; Amendment 85

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 85 to the 
Fishery Management Plan for Groundfish of the Gulf of Alaska. The 
proposed regulations would amend the Central Gulf of Alaska Rockfish 
Program to remove a restriction that prohibits certain catcher/
processors from participation in directed groundfish fisheries in the 
Bering Sea and Aleutian Islands Management Area in July. This action is 
necessary to improve flexibility and reduce operating costs for 
catcher/processors that participate in the Central Gulf of Alaska 
Rockfish Program. This action is intended to promote the goals and 
objectives of the Magnuson-Stevens Fishery Conservation and Management 
Act, the Fishery Management Plan for Groundfish of the Gulf of Alaska, 
and other applicable law.

DATES: Comments must be received no later than May 21, 2009.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN 
0648-AX42,'' by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
    <bullet> Mail: P. O. Box 21668, Juneau, AK 99802.
    <bullet> Fax: 907-586-7557.
    <bullet> Hand delivery to the Federal Building: 709 West 9\th\ 
Street, Room 420A, Juneau, AK.
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.
    Copies of Amendment 85 to the Fishery Management Plan for 
Groundfish of the Gulf of Alaska, the Regulatory Impact Review (RIR), 
the Initial Regulatory Flexibility Analysis (IRFA), the categorical 
exclusion prepared for this action, and the Environmental Assessment 
(EA), RIR, and Final Regulatory Flexibility Analysis (FRFA) prepared 
for the Central Gulf of Alaska Rockfish Program are available from the 
NMFS Alaska Region at the address above or from the Alaska Region 
website at http://www.alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or Rachel 
Baker, 907-586-7425.

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive 
economic zone of Alaska are managed under the Fishery Management Plan 
for Groundfish of the Gulf of Alaska (GOA FMP) and the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area (BSAI FMP). The North Pacific Fishery Management 
Council (Council) prepared both FMPs under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1801 et seq. Regulations implementing the FMPs appear at 50 CFR part 
679. General regulations governing U.S. fisheries also appear at 50 CFR 
part 600.
    Section 802 of the Consolidated Appropriations Act of 2004 (Public 
Law 108--199) required that the Secretary of Commerce, in consultation 
with the Council, establish a program that recognized the historical 
participation of fishing vessels and fish processors for rockfish 
harvested in the Central GOA. Congress specified several aspects of the 
Central GOA Rockfish Program (Rockfish Program). Section 802 states

[[Page 15421]]

that the program shall (1) include the Central GOA rockfish species of 
northern rockfish, Pacific ocean perch, and pelagic shelf rockfish; (2) 
recognize historical participation of fishing vessels in the Central 
GOA rockfish fisheries from 1996 to 2002; (3) recognize historical 
participation of processors in the Central GOA rockfish fisheries from 
1996 to 2000; (4) establish catch limits for non-rockfish species and 
non-target rockfish species harvested with the Central GOA rockfish 
species and base such allocations on historical harvesting of these 
incidentally caught species; (5) set aside up to 5 percent of the total 
allowable catch (TAC) of the Central GOA rockfish fisheries for catcher 
vessels that are not eligible to participate in the program; and (6) 
have a two-year duration.
    The Council developed the Rockfish Program to meet the requirements 
of Section 802 and improve economic efficiency in the Central GOA 
rockfish fisheries. The Council analyzed alternative methods to improve 
economic efficiency in the Central GOA rockfish fisheries. Following 
extensive public comment, the Council adopted the proposed Rockfish 
Program on June 6, 2005. Regulations implementing the Rockfish Program 
were published on November 20, 2006 (71 FR 67210), and are located at 
50 CFR part 679. Section 802 of the Consolidated Appropriations Act of 
2004 authorized the Rockfish Program for two years, from January 1, 
2007, until December 31, 2008. The Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act of 2006, which became 
public law on January 12, 2007 (Public Law 109-479), extended the 
Rockfish Program for another three years, until December 31, 2011. 
Fishing began under the Rockfish Program on May 1, 2007.
    The Rockfish Program is a limited access privilege program (LAPP) 
for the Central GOA rockfish fisheries. Participants receive exclusive 
harvesting privileges for a portion of the TAC assigned to the Central 
GOA rockfish fisheries and species caught incidentally in the Central 
GOA rockfish fisheries if they form cooperatives with other eligible 
participants. Before the Rockfish Program, harvesters competed in a 
limited access fishery for a portion of the Central GOA rockfish 
fisheries TACs by racing to maximize catch before the TAC was harvested 
and the fishery was closed. The limited access fishery required 
harvesters to hold a License Limitation Program (LLP) license to 
participate in the Central GOA rockfish fisheries, but did not allocate 
exclusive harvesting privileges. The rapid pace of fishing reduced the 
ability of harvesters and processors to improve product quality and 
extract more value from the fishery by producing high-value products 
that require additional processing time. Exclusive harvesting 
privileges enable a harvester to choose when to fish and therefore 
adjust to market conditions, avoid dangerous fishing conditions, and 
improve overall harvesting efficiency.
    The Rockfish Program allocates exclusive harvesting privileges to 
eligible participants for the primary species: northern rockfish; 
Pacific ocean perch; and pelagic shelf rockfish. Historically, the 
Central GOA primary species have been almost entirely harvested by 
trawl catcher vessels and trawl catcher/processors, and participation 
in the Rockfish Program is primarily limited to these two sectors. 
Participants in the Rockfish Program receive exclusive harvesting 
privileges for the primary species only if they join a Central GOA 
rockfish cooperative. The Rockfish Program is allocated 95 percent of 
the Central GOA primary species TACs. The remaining 5 percent of the 
primary species TACs are allocated to an entry level fishery for 
participants who have not traditionally participated in the Central GOA 
rockfish fisheries, including participants using non-trawl gear.
    Secondary species are incidentally harvested by vessels during 
rockfish fisheries in the Central GOA. The secondary species managed 
under the Rockfish Program include Pacific cod, rougheye rockfish, 
shortraker rockfish, sablefish, and thornyhead rockfish. Rockfish 
Program participants receive exclusive allocations of secondary species 
only if they join a rockfish cooperative.
    Halibut also is caught and killed incidentally in the primary and 
secondary species fisheries. Halibut caught by trawl gear is considered 
prohibited species catch (PSC) and may not be retained or sold under 
regulations implementing the Northern Pacific Halibut Act of 1982 (73 
FR 12280, March 7, 2008), and under regulations implementing the GOA 
FMP at 50 CFR 679.21. Limits on halibut PSC are established under 
authority of 50 CFR 679.21(d), which when reached, close GOA rockfish 
fisheries, even if the rockfish TACs are not harvested. The Rockfish 
Program allocates participants a fixed amount of the halibut PSC limit 
in the primary and secondary species fisheries. Rockfish Program 
participants receive a portion of the total GOA halibut PSC limit based 
on historical halibut mortality rates in the primary species fisheries. 
Only participants that join a rockfish cooperative receive an exclusive 
allocation of the halibut PSC limit. Additional information on primary 
and secondary species allocations and halibut PSC limits is in the 
proposed rule for the Rockfish Program (71 FR 33040, June 7, 2006) and 
in the EA/RIR prepared for the Rockfish Program (see ADDRESSES).
    A person is eligible to participate in the Rockfish Program and 
receive exclusive harvesting privileges if that person holds an LLP 
license that has been associated with one or more vessels that made 
legal landings of Central GOA primary species during the rockfish 
fishing seasons from 1996 to 2002, and the landings were attributed to 
that LLP license. When the Rockfish Program was implemented, eligible 
LLP license holders who applied to NMFS received quota share (QS), 
which is the multi-year privilege to receive exclusive harvesting 
privileges under the Rockfish Program. NMFS calculated how much QS 
would be allocated to an LLP license based on the catch history of the 
associated vessels and modified LLP licenses to designate the 
calculated amount of QS on the license.
    Eligible harvesters must elect whether to participate in the 
Rockfish Program by March 1 each year. To participate, a rockfish 
harvester who received a QS allocation assigned to a specific LLP 
license must assign all QS associated with that LLP license to (1) a 
cooperative fishery, in which the harvester receives exclusive harvest 
privileges, or (2) a limited access fishery, in which eligible 
harvesters compete for a share of Central GOA rockfish TACs. Eligible 
harvesters in the catcher/processor sector may elect not to 
participate, or ``opt out'', of the Rockfish Program and most of its 
requirements. Harvesters with QS in the catcher vessel sector may not 
opt out of the Rockfish Program. Eligible harvesters can modify their 
fishery participation selection prior to each fishing year, but once an 
LLP license and its associated QS is assigned for the year, the 
rockfish harvester cannot reassign the LLP license or QS to a different 
fishery during that year.
    Rockfish cooperatives submit an application to NMFS and receive a 
cooperative quota (CQ) permit, which specifies how much CQ the 
cooperative may harvest. CQ is an exclusive annual catch limit of 
primary species, secondary species, and halibut PSC that can be 
harvested by members of the rockfish cooperative. The CQ amount is 
based on the sum of the QS of all harvesters who have assigned their QS 
to the cooperative. Cooperatives may be formed only by eligible 
harvesters

[[Page 15422]]

holding LLP licenses within the same sector, either the catcher vessel 
sector or the catcher/processor sector.
    Harvesters in the limited access fishery compete with other 
eligible harvesters for a portion of the primary species TACs assigned 
to the limited access fishery. The catcher vessel sector and the 
catcher/processor sector have separate limited access fisheries. The 
TAC assigned to the limited access fisheries for each primary species 
represents the percentage of the total QS allocated to the limited 
access fishery in each sector for that primary species fishery. Limited 
access fishery participants do not receive exclusive allocations of 
primary or secondary species based on the QS on the eligible LLP 
license, nor do they receive an exclusive halibut PSC allocation.
    If a harvester in the catcher/processor sector opts out of the 
Rockfish Program, the harvester is precluded from directed fishing for 
the three primary species in the Central GOA.

Sideboard Limits

    The Council anticipated that rockfish cooperatives could 
potentially use fewer vessels to harvest the same amount of fish at a 
lower cost, resulting in greater net profits for rockfish cooperative 
members. Harvesters could use economic efficiencies created by 
cooperative participation to offset operational costs in other 
fisheries, or expand into new fisheries in the GOA and BSAI. This could 
economically disadvantage harvesters in these other fisheries. NMFS 
commonly establishes catch limits and other fishery participation 
restrictions, called sideboard limits, when implementing LAPPs to 
prevent participants who benefit from receiving exclusive harvesting 
privileges in the LAPP from shifting effort into fisheries that are not 
managed by a LAPP. The sideboard limits in the Rockfish Program are in 
effect only during the month of July, to restrict fishing by Rockfish 
Program participants during the historical timing of the Central GOA 
rockfish fisheries, but allow harvesters to participate in other 
fisheries in which they have historically fished.
    The Rockfish Program has two types of sideboard limits: (1) caps on 
the amount of harvest by Rockfish Program participants in specific 
areas and fisheries during July; and (2) directed fishing prohibitions 
in specific areas and fisheries in July. Sideboard limits apply to all 
LLP licenses and vessels that could have been used to generate QS, even 
if the holder of an LLP license or a vessel owner did not submit an 
application to participate in the Rockfish Program.
    Harvest sideboard limits cap the amount of primary species catch in 
the Western GOA and the West Yakutat District and the amount of halibut 
PSC that can be used in the Central GOA, Western GOA, and West Yakutat 
District groundfish fisheries for each Rockfish Program sector during 
the month of July. The harvest sideboard limits for each area and 
fishery are based on the historical catch of primary species and use of 
halibut PSC in July by vessels subject to the harvest sideboard limits. 
NMFS manages the primary species sideboard limits by tracking the total 
harvest of primary species in July in the Western GOA and the West 
Yakutat District by the vessels subject to the harvest sideboard 
limits. Once a sector sideboard limit is reached for a specific primary 
species, the directed rockfish fisheries are closed to the vessels 
within that sector. NMFS also tracks total use of halibut PSC in the 
Central GOA, Western GOA, and West Yakutat District in July by vessels 
subject to the sideboard limits, and closes directed fishing for non-
primary species groundfish fisheries in the GOA once the halibut PSC 
sideboard limit is reached. A detailed description of the harvest 
sideboard limits is in the proposed rule published for the Rockfish 
Program (71 FR 33040, June 7, 2006) and the EA/RIR prepared for the 
Rockfish Program (see ADDRESSES).
    The second type of sideboard limit in the Rockfish Program 
prohibits directed fishing in specific fisheries by vessels subject to 
the sideboard limit. This type of restriction is commonly called a 
``stand down.'' Regulations at 50 CFR 679.2 define ``directed fishing'' 
as any activity that results in a vessel retaining an amount of a 
species or species group onboard that is greater than the maximum 
retainable amount; that is, the amount expected to be caught if the 
species or species group was harvested incidentally in another target 
fishery. Maximum retainable amounts of incidentally caught species are 
calculated for all groundfish species and species complexes in the GOA 
and BSAI and specified in the regulations at 50 CFR 679.20.
    The Rockfish Program has three separate stand down restrictions for 
the catcher/processor sector, depending on whether the vessel owner or 
LLP license holder elects to participate in the cooperative fishery, 
the limited access fishery, or opt out of the Rockfish Program.

Catcher/Processor Cooperative Stand Downs

    Vessels and LLP licenses assigned to a rockfish cooperative in the 
catcher/processor sector must stand down from BSAI groundfish 
fisheries, other than fixed-gear sablefish and pollock, from July 1 to 
July 14. Fixed-gear sablefish and pollock fisheries in the BSAI are 
managed under LAPPs that restrict participation in the fisheries and 
allocate exclusive harvesting allocations. Fisheries managed under a 
LAPP are typically excluded from sideboard limits in other LAPPs, 
because a LAPP allocates exclusive harvesting privileges only to 
eligible participants, and eliminates the possibility that ineligible 
harvesters can increase fishery participation to the detriment of LAPP 
participants.
    Additionally, vessels and LLP licenses assigned to a rockfish 
cooperative in the catcher/processor sector must stand down from GOA 
groundfish fisheries, other than fixed-gear sablefish, in July. As in 
the BSAI, fixed-gear sablefish in the GOA is managed under a LAPP. 
Vessels and LLP licenses must stand down from GOA groundfish fisheries 
from July 1 to July 14 if the rockfish cooperative has harvested any CQ 
prior to July 1, or from July 1 until 90 percent of the rockfish 
cooperative's primary species CQ has been harvested if the rockfish 
cooperative has not harvested any CQ prior to July 1. However, the GOA 
stand down does not apply to vessels in the catcher/processor sector 
that participate in cooperatives that maintain a monitoring plan, as 
required by Rockfish Program regulations, during all fishing for CQ or 
any directed sideboard fishery in the GOA.

Catcher/Processor Limited Access Stand Downs

    Vessels in the catcher/processor sector using an LLP license with 
greater than 5 percent of the Pacific ocean perch QS allocated to the 
catcher/processor sector and assigned to the limited access fishery are 
subject to a stand down in any BSAI groundfish fishery, except pollock 
or fixed-gear sablefish; and any GOA groundfish fishery, except fixed-
gear sablefish, from July 1 until 90 percent of the CQ of Pacific ocean 
perch assigned to the catcher/processor limited access fishery has been 
harvested. The stand down was intended to preclude vessels with 
significant historical participation in GOA Pacific ocean perch 
fisheries from expanding their activities into other GOA and BSAI 
groundfish fisheries, specifically Aleutian Islands Pacific

[[Page 15423]]

ocean perch fisheries, during the historical Central GOA rockfish 
season.

Catcher/Processor Opt Out Stand Downs

    Vessel owners and LLP license holders in the catcher/processor 
sector who opt out of the Rockfish Program must (1) stand down from all 
of the primary species fisheries in the Central GOA during the year; 
and (2) stand down from any GOA groundfish fishery in which that vessel 
or LLP license does not have prior participation, except fixed-gear 
sablefish, from July 1 to July 14. Prior participation in a GOA 
groundfish fishery is defined as at least one landing in the directed 
GOA groundfish fishery during any two years from 1996 through 2002 
during specific time periods in early July, as specified in the 
regulations at 50 CFR 679.82. Vessels in the catcher/processor sector 
that opt out of the Rockfish Program are not subject to a stand down in 
the BSAI in July.
    Table 1 summarizes the Rockfish Program directed fishing 
prohibitions for each sector.

                             Table 1.-ROCKFISH PROGRAM DIRECTED FISHING PROHIBITIONS
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                                                                             Catcher/Processor      Catcher/
      Sideboard limits for July        Catcher Vessel    Catcher/Processor     Limited Access     Processor Opt
                                           Sector          Cooperatives           Fishery              Out
----------------------------------------------------------------------------------------------------------------
Prohibited fishing:
----------------------------------------------------------------------------------------------------------------
BSAI groundfish                       Directed         Directed fishing      Directed fishing   None
                                       fishing          prohibited from       prohibited from
                                       prohibited       July 1 - July 14      July 1 until 90%
                                       from July 1 -    for all BSAI          of the Pacific
                                       July 31 for      groundfish except     ocean perch
                                       Alaska plaice,   pollock and fixed-    assigned to the
                                       arrowtooth       gear sablefish.       limited access
                                       flounder,                              fishery in the
                                       flathead sole,                         catcher/
                                       other                                  processor sector
                                       flatfish,                              is harvested,
                                       Pacific ocean                          for all BSAI
                                       perch, rock                            groundfish
                                       sole and                               except pollock
                                       yellowfin                              and fixed-gear
                                       sole.                                  sablefish, and
                                                                              all GOA
                                                                              groundfish
                                                                              except fixed-
                                                                              gear sablefish.
                                                                             .................
                                                                             Applies only to
                                                                              catcher/
                                                                              processors with
                                                                              >5% of the total
                                                                              Central GOA
                                                                              Pacific ocean
                                                                              perch QS
                                                                              assigned to the
                                                                              catcher/
                                                                              processor
                                                                              sector.
----------------------------------------------------------------------------                   -----------------
GOA groundfish                        None             Directed fishing      .................  July 1 - July
                                                        prohibited for all                       14, unless
                                                        GOA groundfish                           prior
                                                        except fixed-gear                        participation
                                                        sablefish from July                      in two years
                                                        1- July 14 if the                        from 1996 to
                                                        rockfish                                 2002.
                                                        cooperative has
                                                        harvested any CQ
                                                        prior to July 1. If
                                                        the rockfish
                                                        cooperative has not
                                                        harvested any CQ
                                                        prior to July 1,
                                                        directed fishing is
                                                        prohibited for all
                                                        GOA groundfish
                                                        except fixed-gear
                                                        sablefish from July
                                                        1 until 90% of the
                                                        rockfish
                                                        cooperatives'
                                                        primary species CQ
                                                        has been harvested.
                                                        Prohibition does
                                                        not apply if the
                                                        cooperative
                                                        maintains a
                                                        monitoring program,
                                                        as required under
                                                        the regulations,
                                                        during all fishing
                                                        for CQ or any
                                                        directed sideboard
                                                        fishery in the GOA.
----------------------------------------------------------------------------------------------------------------

    Since Rockfish Program implementation, NMFS implemented Amendment 
80 to the BSAI FMP, which allocated exclusive harvesting privileges for 
several BSAI directed trawl groundfish fisheries. Additionally, 
Amendment 85 to the BSAI FMP was implemented to refine sector 
allocations for Pacific cod in the BSAI. Implementation of Amendments 
80 and 85 to the BSAI FMP has significantly reduced the likelihood that 
catcher/processors participating in the Rockfish Program could increase 
effort in BSAI groundfish fisheries to the disadvantage of other 
participants during the period in early July when the stand downs are 
in effect.

Amendments 80 and 85 to the BSAI FMP

    Regulations implementing Amendment 80 to the BSAI FMP were 
published on September 14, 2007 (72 FR

[[Page 15424]]

52668), and are located at 50 CFR part 679. Fishing began under 
Amendment 80 on January 1, 2008. Amendment 80 is an LAPP and allocates 
Aleutian Islands Pacific ocean perch, yellowfin sole, flathead sole, 
rock sole, and Atka mackerel (Amendment 80 species) to the sector of 
BSAI trawl catcher/processors that predominantly harvests these species 
(Amendment 80 sector). Of the 15 eligible harvesters in the catcher/
processor sector of the Rockfish Program, 10 also qualified for the 
Amendment 80 sector and received initial QS for Amendment 80 species. 
Consequently, the implementation of Amendment 80 affected a significant 
number of catcher/processors that also participate in the Rockfish 
Program. Amendment 80 allocates exclusive harvesting privileges for 
Amendment 80 species only to participants that form cooperatives. A 
limited access fishery for Amendment 80 species is available for 
catcher/processors in the Amendment 80 sector that choose not to join a 
cooperative, and a separate allocation of Amendment 80 species is made 
to this limited access fishery. Aleutian Islands Pacific ocean perch, 
yellowfin sole, and Atka mackerel are also allocated separately to a 
BSAI trawl limited access fishery for non-Amendment 80 participants.
    Amendment 80 significantly increased the number of BSAI directed 
groundfish fisheries managed under LAPPs for which participants can 
receive exclusive harvesting privileges. Six directed BSAI trawl 
groundfish fisheries remain unallocated among sectors and are managed 
as limited access fisheries following the implementation of Amendment 
80: Alaska plaice, the ``other flatfish'' species complex, arrowtooth 
flounder, Greenland turbot, non-fixed gear sablefish, and squid. 
Although vessels in the Amendment 80 sector are the primary 
participants in these fisheries, these species were not included in 
Amendment 80 because they are considered to be relatively minor, low 
value fisheries, and are not an important target for any sector. 
Furthermore, none of the TACs for these six species is fully harvested 
on a consistent basis, and expanding effort in these fisheries would 
not pose management or conservation concerns at this time.
    Amendment 80 allocates Amendment 80 species and halibut and crab 
PSC that are caught incidentally in BSAI trawl groundfish fisheries to 
the Amendment 80 sector. The sector allocations of Amendment 80 species 
and halibut and crab PSC are further allocated to the Amendment 80 
cooperative fishery and the Amendment 80 limited access fishery. 
Exclusive allocations of Amendment 80 species and halibut and crab PSC 
are made only to eligible catcher/processors that join cooperatives. 
The halibut PSC allocation is important for Amendment 80 participants 
because it acts as a constraint on fully harvesting the TACs for all 
directed trawl fisheries in the BSAI. Prior to the implementation of 
Amendment 80, harvesters competed in limited access fisheries for all 
BSAI groundfish fisheries except pollock, fixed-gear sablefish, and the 
Community Development Quota multispecies fishery, and there was not 
enough halibut PSC for trawl participants to fully harvest the TACs for 
all of the directed groundfish fisheries in which they were eligible to 
participate. Participants in the Amendment 80 sector traditionally 
elected to reserve halibut PSC to target the more valuable Amendment 80 
species, which did not leave enough halibut PSC for NMFS to open the 
unallocated groundfish fisheries for directed fishing, even if their 
TACs were large enough to support a directed fishery.
    With the implementation of Amendment 80, participants in the 
Amendment 80 cooperative fishery gained a significant amount of 
flexibility from an exclusive allocation of halibut PSC since a 
cooperative can dedicate halibut PSC to the target fisheries of its 
choice. In addition to cost savings from vessel consolidation, 
cooperatives facilitate more efficient and less wasteful harvest 
through coordination of fishing activities and the ability to trade 
harvesting privileges within or between cooperatives. The increased 
certainty and flexibility in the use of halibut and crab PSC by 
Amendment 80 cooperatives enabled NMFS to open fisheries for all 
unallocated BSAI groundfish species for directed fishing only to 
Amendment 80 cooperative participants in 2008. Vessels in the Amendment 
80 limited access fishery and the BSAI trawl limited access fishery 
continued to compete for catches of BSAI groundfish species under the 
halibut PSC limit and as in previous years, participants in these 
fisheries elected to reserve halibut PSC for the more valuable 
Amendment 80 species.
    Regulations implementing Amendment 85 to the BSAI FMP were 
published on September 4, 2007 (72 FR 50788), and are located at 50 CFR 
part 679. Amendment 85 to the BSAI FMP was effective on January 1, 
2008, and allocated BSAI Pacific cod, a directed BSAI fishery, among 
several sectors, including an allocation to the Amendment 80 sector. 
Prior to Amendment 85 to the BSAI FMP, the allocation of Pacific cod to 
the trawl catcher/processor sector was available to all trawl catcher/
processors in the BSAI. Amendment 85 to the BSAI FMP recognized the 
differences between catcher/processors that primarily participate in 
the directed BSAI pollock fishery and catcher/processors that 
participate in the Amendment 80 sector by creating a separate 
allocation for each. Amendment 80 further divides the allocation of 
Pacific cod to the Amendment 80 sector between the Amendment 80 
cooperative fishery and the Amendment 80 limited access fishery. Each 
Amendment 80 cooperative receives an exclusive allocation based on the 
aggregated historical Pacific cod harvest by its member vessels. 
Vessels that participate in the Amendment 80 limited access fishery do 
not receive an exclusive allocation of Pacific cod and must compete for 
a share of the TAC in the Amendment 80 limited access fishery.
    The cooperative-level allocation of BSAI Pacific cod and the 
allocations of Amendment 80 species and halibut and crab PSC allow 
Amendment 80 cooperatives to manage most of their key target and 
incidental catch species within a cooperative. In contrast, 
participants in the Amendment 80 limited access fishery and the BSAI 
trawl limited access fishery must compete for a share of the groundfish 
TACs, subject to incidental catch and PSC constraints. This restricts 
the number of directed groundfish fisheries that are available to 
participants in the Amendment 80 limited access fishery and the BSAI 
trawl limited access fishery. In the first year of fishing under 
Amendment 80, participants in the Amendment 80 limited access and the 
BSAI trawl limited access fisheries concentrated effort in the Pacific 
cod, Aleutian Islands Pacific ocean perch, Atka mackerel, and yellowfin 
sole fisheries in the BSAI.

The Proposed Action

    Following implementation of the Rockfish Program in December 2006, 
participants in the catcher/processor sector testified to the Council 
that some sideboard limits in the Rockfish Program may be too 
restrictive. The Council did not receive testimony from participants in 
the catcher vessel sector proposing to modify stand downs applicable to 
that sector, and the proposed action would not change those stand 
downs. The Council initiated an analysis in April 2007 to examine 
alternatives for exempting certain vessels in the catcher/processor 
sector

[[Page 15425]]

from the BSAI groundfish fishery stand downs in July.
    In October 2008, the Council recommended removing the BSAI 
groundfish fishery stand downs for all harvesters in the catcher/
processor sector. The Council based its recommendation on information 
received through public testimony, review of the potential effects of 
exempting certain vessels from the stand downs, and a review of the 
effects of completely removing the BSAI groundfish fishery stand downs 
from the Rockfish Program. The Council determined that (1) the BSAI 
stand down requirements for catcher/processors participating in the 
Rockfish Program are no longer necessary to protect participants in 
BSAI groundfish fisheries; and (2) several participants in the Rockfish 
Program catcher/processor sector would likely benefit if the BSAI stand 
downs were eliminated.

Effects of the Proposed Action

    The proposed action would remove BSAI groundfish fishery stand 
downs in July that apply to certain catcher/processors that also 
participate in the Rockfish Program. The proposed action would not 
affect other GOA fisheries, because removing the BSAI stand downs would 
not change the allocations to or timing of the Central GOA rockfish 
fisheries. Participants in the Rockfish Program catcher/processor 
sector are subject to sideboard limits in other GOA fisheries, and the 
proposed action would not change the existing GOA sideboard limits.
    The following sections describe the Council's rationale for the 
proposed action to permanently remove the BSAI groundfish fishery stand 
downs in July for harvesters in the catcher/processor sector of the 
Rockfish Program and the effects of removing the BSAI stand downs from 
the Rockfish Program.
    Effects of the proposed action on catcher/processors participating 
in the Rockfish Program. The effects of removing the BSAI stand downs 
from the Rockfish Program would vary for individual participants in the 
catcher/processor sector, depending on whether they participate in the 
Central GOA rockfish cooperative fishery, limited access fishery, or 
choose to opt out of the Rockfish Program.
    Fifteen vessels and LLP licenses are eligible to participate in the 
catcher/processor sector in the Rockfish Program. Under the current 
regulations, all harvesters in the catcher/processor sector that elect 
to participate in a rockfish cooperative are prohibited from directed 
fishing in BSAI groundfish fisheries, except pollock and fixed-gear 
sablefish, for the first two weeks in July. A maximum of 15 harvesters 
would be subject to the BSAI stand down if all eligible harvesters 
elected to join a rockfish cooperative. In the first two years of the 
Rockfish Program, five harvesters participated in the rockfish 
cooperative fishery in the catcher/processor sector and were subject to 
the BSAI stand down in July.
    In the years prior to the Rockfish Program implementation, the 
Central GOA rockfish fisheries opened around July 1. Participants in 
the catcher/processor sector of the Central GOA rockfish fisheries 
typically moved to the Western GOA and West Yakutat District to harvest 
rockfish and other flatfish species at the conclusion of the Central 
GOA rockfish fisheries. After completing the Western GOA and West 
Yakutat District groundfish fisheries, some catcher/processor vessels 
moved to the BSAI, typically to harvest Pacific ocean perch in the 
Aleutian Islands. When the Rockfish Program was implemented, the 
Central GOA rockfish fisheries opening date shifted from July 1 to May 
1 for vessels that are members of a cooperative. In the first year of 
the Rockfish Program, most cooperative participants in the catcher/
processor sector had completed fishing in the Central GOA rockfish and 
other GOA fisheries in June, but all five harvesters in the cooperative 
fishery were prohibited from participating in BSAI groundfish fisheries 
from July 1 to July 14 by the stand down, and some vessels rested idle 
for approximately two weeks. The disruption in harvesting operations 
adversely impacted vessel owners subject to the BSAI stand down. Any 
stand down reduces efficiency because crew and fuel costs are still 
incurred while the vessel is idle. Consequently, the BSAI stand down 
requirement may act as a disincentive for harvesters in the catcher/
processor sector to join a rockfish cooperative. Five out of 15 
eligible harvesters (33 percent) elected to participate in the 
cooperative fishery in the catcher/processor sector in the first two 
years of the Rockfish Program, which may reflect the disincentive to 
join a rockfish cooperative created by the BSAI stand down. The Council 
received testimony from owners of catcher/processor vessels eligible to 
participate in the Rockfish Program that the BSAI stand down adversely 
impacted fishing operations and increased vessel costs in the first 
year of the Rockfish Program. Removing the BSAI stand down from the 
Rockfish Program would relieve these adverse impacts and would most 
benefit harvesters in the catcher/processor sector that participate in 
BSAI groundfish fisheries and elect to participate in a Central GOA 
rockfish cooperative.
    Harvesters in the Rockfish Program catcher/processor limited access 
fishery with greater than 5 percent of the Central GOA Pacific ocean 
perch QS assigned to the catcher/processor sector are subject to a 
stand down in any BSAI groundfish fishery, except pollock or fixed-gear 
sablefish, from July 1 until 90 percent of the Central GOA Pacific 
ocean perch assigned to the catcher/processor limited access fishery 
has been harvested. Of the 15 eligible harvesters in the catcher/
processor sector, 8 (53 percent) hold more than 5 percent of the 
Central GOA Pacific ocean perch QS allocated to the catcher/processor 
sector and would be subject to the BSAI stand down if they elected to 
participate in the Rockfish Program limited access fishery. In 2007, 
two participants in the limited access fishery in the catcher/processor 
sector were subject to the BSAI stand down and in 2008, three 
participants were subject to the BSAI stand down.
    The BSAI stand down did not likely have a negative impact on these 
vessels, however. In 2007, the threshold to relieve the stand down 
(i.e., harvest of 90 percent of the Central GOA Pacific ocean perch 
allocated to the catcher/processor sector) was reached on July 5. Prior 
to Rockfish Program implementation, the Central GOA rockfish fisheries 
opened around July 1. The Rockfish Program did not shift the fishery 
opening dates for catcher/processors participating in the limited 
access fishery, and these vessels currently cannot participate in the 
Central GOA rockfish fisheries before July 1. In the years prior to the 
Rockfish Program implementation, vessels that participated in the GOA 
rockfish and flatfish fisheries did not complete the GOA fisheries and 
move on to the BSAI groundfish fisheries before July 5. Therefore, the 
five-day stand down period in 2007 did not disrupt historical fishing 
patterns for these vessels. This suggests that removing the stand down 
may not benefit catcher/processors in the limited access fishery as 
much as catcher/processors in the cooperative fishery. Nonetheless, it 
is possible that the risk of a BSAI stand down of unknown length may 
have deterred some vessels from participating in the limited access 
fishery in the catcher/processor sector, and more eligible harvesters 
may choose to participate in the Rockfish Program if the BSAI stand 
down is removed.
    Harvesters in the catcher/processor sector who opt out of the 
Rockfish

[[Page 15426]]

Program are not subject to a BSAI stand down and would not be affected 
by the proposed action. In 2007, six harvesters in the catcher/
processor sector opted out of the Rockfish Program. Three catcher/
processors elected to opt out of the Rockfish Program in 2008.
    In summary, while the BSAI stand downs have a minimal effect on 
non-Rockfish Program operations for catcher/processors that do not 
elect to join a cooperative, they may be important factors for 
harvesters in the catcher/processor sector when determining whether to 
participate in the Rockfish Program. The BSAI stand downs likely are a 
significant disincentive for eligible catcher/processors to join a 
rockfish cooperative. Although the proposed action would most benefit 
harvesters in the catcher/processor sector who elect to participate in 
the Rockfish Program cooperative fishery, it is possible that more 
catcher/processors would choose to participate in the Rockfish Program 
if the BSAI stand downs were removed.
    Effects of the proposed action on participants in fisheries with 
species-specific allocations under Amendments 80 and 85 to the BSAI 
FMP. The effects of removing the BSAI stand downs for Rockfish Program 
catcher/processors on non-Rockfish Program participants in BSAI 
groundfish fisheries would vary according to the fishery in which they 
participate: Amendment 80 cooperative fishery, Amendment 80 limited 
access fishery, or the BSAI trawl limited access fishery. There is a 
low probability that removing the stand downs would have an adverse 
effect on participants in any of these fisheries.
    The Amendment 80 species allocations are defined in Amendment 80, 
and Rockfish Program catcher/processors cannot participate in these 
fisheries unless they are eligible for the Amendment 80 sector. 
Participants in the Amendment 80 cooperative fishery receive exclusive 
allocations of Amendment 80 species, Pacific cod, and halibut and crab 
PSC. There are 24 vessels in the Amendment 80 sector, and 17 vessels 
participated in an Amendment 80 cooperative in 2008. If this level of 
participation continues, the proposed action would not affect 
approximately 70 percent of the Amendment 80 sector participants, 
because Rockfish Program participants could not increase effort in 
Amendment 80 cooperative fisheries. Additionally, 7 of the 15 eligible 
harvesters (46 percent) in the catcher/processor sector of the Rockfish 
Program also participated in an Amendment 80 cooperative. Removal of 
the BSAI stand downs would benefit these catcher/processors by enabling 
them to coordinate fishing activities in the GOA and BSAI and avoid the 
costs of idling a vessel during the BSAI stand down period in July.
    Seven catcher/processors participated in the Amendment 80 limited 
access fishery in 2008. Six of these vessels are owned by one company, 
and three of the six catcher/processors with common ownership also 
participated in the Rockfish Program in 2008. As with participants in 
the Amendment 80 cooperative fishery, removing the BSAI stand down 
would likely benefit the company with multiple vessels that 
participates in the Rockfish Program and the Amendment 80 limited 
access fishery by providing more flexibility to coordinate harvesting 
operations. The seventh participant in the Amendment 80 limited access 
fishery did not qualify for the Rockfish Program and could potentially 
be disadvantaged by the proposed action if the six other Amendment 80 
limited access fishery participants were able to increase effort in the 
Amendment 80 limited access fisheries in July to the detriment of the 
other participant. However, based on historical catch data analyzed in 
the RIR for this proposed rule (see ADDRESSES), the Amendment 80 
catcher/processor that did not qualify for the Rockfish Program has 
little historical participation in the Amendment 80 target fisheries at 
any time of the year, and thus has no history of dependence on the 
Amendment 80 fisheries in July that could be affected by removal of the 
BSAI stand down. In addition, if the Amendment 80 catcher/processor 
that does not participate in the Rockfish Program wishes to increase 
participation in the Amendment 80 limited access fisheries, directed 
fishery openings for species in the Amendment 80 limited access fishery 
occur outside of the early July time period in January, February, and 
September.
    Participants in the BSAI limited access trawl fisheries for Pacific 
cod, yellowfin sole, Atka mackerel and Aleutian Islands Pacific ocean 
perch could be negatively impacted by the removal of the stand down if 
the five catcher/processors that participate in the Rockfish Program, 
but do not qualify for the Amendment 80 sector, increased effort in 
these fisheries in July. This is unlikely, however, because the BSAI 
limited access trawl fisheries are allocated a relatively small portion 
of the species TACs, which reflects the historically low level of 
participation by non-Amendment 80 vessels. The low TACs in the BSAI 
limited access trawl groundfish fisheries, combined with halibut PSC 
constraints, significantly limit the amount of fish available for a 
directed fishery. For most species and areas the BSAI limited access 
trawl directed fishery either (1) remains closed to directed fishing 
because the TAC is not sufficient to support a directed fishery, or (2) 
opens in January or February, but is closed to directed fishing prior 
to July in order to prevent participants from exceeding the seasonal 
TAC. In 2008, only the yellowfin sole and Western Aleutian Islands Atka 
mackerel fishery were open to the BSAI limited access trawl 
participants for directed fishing in early July. Consequently, the 
Rockfish Program catcher/processors would be unlikely to increase 
participation in July in BSAI limited access trawl fisheries. Rockfish 
Program participants could potentially increase participation in these 
fisheries at other times during the year, but the BSAI stand down is 
limited to July 1 through July 14 and does not protect non-Rockfish 
Program participants in the BSAI limited access trawl fisheries from 
increased competition outside of that time period.
    Effects of the proposed action on participants in unallocated BSAI 
fisheries. Removal of the July BSAI stand down for Rockfish Program 
catcher/processors is unlikely to adversely affect non-Rockfish Program 
participants in unallocated BSAI groundfish fisheries. These fisheries 
have had limited historical participation owing to low market values. 
In practice, the most desirable unallocated BSAI groundfish fisheries 
will likely open for directed fishing only to participants in the 
Amendment 80 cooperative fishery, because only these participants have 
sufficient control over halibut PSC use to enable directed fisheries 
for these species. Rockfish Program participants relieved from the BSAI 
stand downs under the proposed action likely could not participate in 
fisheries for unallocated BSAI species unless they were also 
participants in the Amendment 80 cooperative fishery. Even if 
participants in the Amendment 80 limited access fishery and the BSAI 
trawl limited access fishery were not constrained by halibut PSC and 
could undertake directed fishing for the unallocated groundfish species 
in July, the current BSAI stand protects participants in these limited 
access fisheries from increased effort by Rockfish Program participants 
who are also Amendment 80 cooperative participants only from July 1 to 
July 14. These Rockfish Program and Amendment 80 cooperative 
participants could still use the benefits of cooperative harvest 
management to increase participation in the unallocated

[[Page 15427]]

BSAI groundfish fisheries at other times during the year.
    As described in detail above and in the RIR/IRFA prepared for this 
action (see ADDRESSES), the proposed rule would permanently remove the 
BSAI stand downs that apply to Rockfish Program participants in the 
catcher/processor sector in July.
    NMFS is proposing to modify the Rockfish Program regulations to 
remove all instances in which Central GOA rockfish catcher/processors 
are required to stand down from BSAI directed fisheries in July. These 
references occur in regulatory text at 50 CFR 679.82.

Classification

    The Assistant Administrator for Fisheries, NMFS, has determined 
that this proposed rule is consistent with Amendment 85 to the GOA FMP, 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An RIR was prepared for this action that assesses all costs and 
benefits of available regulatory alternatives. The RIR describes the 
potential size, distribution, and magnitude of the economic impacts 
that this action may be expected to have. Additionally, an IRFA was 
prepared that describes the impact this proposed rule would have on 
small entities. Copies of the RIR/IRFA prepared for this proposed rule 
are available from NMFS (see ADDRESSES). The RIR/IRFA prepared for this 
proposed rule incorporates by reference an extensive RIR/IRFA prepared 
for Amendment 68 to the GOA FMP that detailed the impacts of the 
Rockfish Program on small entities.
    The IRFA for this proposed action describes in detail the reasons 
why this action is being proposed; describes the objectives and legal 
basis for the proposed rule; describes and estimates the number of 
small entities to which the proposed rule would apply; describes any 
projected reporting, recordkeeping, or other compliance requirements of 
the proposed rule; identifies any overlapping, duplicative, or 
conflicting Federal rules; and describes any significant alternatives 
to the proposed rule that accomplish the stated objectives of the 
Magnuson-Stevens Fishery Conservation and Management Act and any other 
applicable statutes, and that would minimize any significant adverse 
economic impact of the proposed rule on small entities.
    The description of the proposed action, its purpose, and its legal 
basis are described in the preamble and are not repeated here. The 
proposed rule directly regulates all catcher/processor vessels and LLP 
licenses that qualify for the Rockfish Program. There are a total of 15 
catcher/processor LLP licenses that qualify for the Rockfish Program, 
representing the maximum number of entities that could be directly 
regulated under the proposed action in any given year. If all 15 
catcher/processors chose to join a rockfish cooperative, the proposed 
action to remove the BSAI stand down would apply to all Rockfish 
Program catcher/processors.
    Under principles established by the U.S. Small Business 
Administration at 13 CFR 121.03, business concerns are affiliated when 
they have identical or substantially identical business or economic 
interests, or are economically dependent through contractual or other 
relationships. The interests of affiliated individuals or firms are 
aggregated when measuring whether the entity is a small business under 
the Regulatory Flexibility Act. If all 15 catcher/processors chose to 
participate in cooperatives and were thus subject to the stand down 
under the status quo, they would all be considered large entities for 
the purposes of the Regulatory Flexibility Act. Available catch and 
earnings data suggest that cooperatives created under the Rockfish 
Program would likely have aggregate gross receipts, from all sources, 
including affiliated worldwide, in excess of the $4 million threshold 
specified by the Small Business Administration.
    If all 15 catcher/processors chose to participate in the limited 
access sector, 8 of the 15 would be subject to the BSAI stand down. Of 
these eight catcher/processors, six are also part of the Amendment 80 
sector in the BSAI. Four of these vessels were part of an Amendment 80 
cooperative in 2008, and would be considered affiliated by their 
membership in the cooperative. The other two Amendment 80 vessels are 
also affiliated because they are owned by the same company. The 
remaining two vessels are also affiliated by common ownership, and all 
eight catcher/processors would be considered large entities for 
purposes of the Regulatory Flexibility Act.
    Based upon available information, it does not appear that the 
proposed action has the potential to directly regulate any small 
entities. However, current empirical data on cost structure, 
affiliation, operational procedures and strategies in the fishing 
sectors subject to the proposed regulatory action are incomplete. The 
available information is insufficient to permit preparation of a 
``factual basis'' upon which to certify that the preferred alternative 
does not have the potential to result in ``significant economic impacts 
on a substantial number of small entities,'' as defined under 
Regulatory Flexibility Act. Therefore, a formal IRFA was prepared and 
is included in this analytical package.
    The proposed rule would not change existing reporting, 
recordkeeping, and other compliance requirements. The analysis revealed 
no Federal rules that would conflict with, overlap, or be duplicated by 
the alternatives under consideration.
    All of the directly regulated entities would be expected to benefit 
from this action relative to the status quo alternative because it 
would relieve restrictions that limit their ability to participate in 
directed BSAI groundfish fisheries in early July.
    The Council analyzed and considered four alternatives for the 
specific participants and fisheries subject to the July BSAI stand down 
periods. These alternatives included the status quo, exempting 
Amendment 80 cooperative participants from the BSAI stand downs, 
exempting all Amendment 80 sector participants from the BSAI stand 
downs, and removing the BSAI stand downs for all catcher/processors in 
the Rockfish Program. The RIR prepared for this proposed rule 
determined both Amendment 80 and non-Amendment 80 catcher/processors 
participating in the Rockfish Program likely would be unable to 
increase effort in BSAI groundfish fisheries to the disadvantage of 
other participants during the short period in early July when the stand 
downs are in effect. Based on this information, the Council determined 
there was little benefit to retaining the July BSAI stand downs for any 
subset of the Rockfish Program catcher/processor sector. The Council 
recommended removing the BSAI stand downs for all catcher/processors in 
the Rockfish Program. Compared with the status quo, the proposed action 
recommended by the Council would have the greatest potential to reduce 
operating costs and increase flexibility for participants in the 
catcher/processor sector of the Rockfish Program, and would have a low 
likelihood of negatively impacting other participants in BSAI 
groundfish fisheries in early July.

Collection-of-Information

    This proposed rule does not contain a collection-of-information 
requirement subject to review and approval by the Office of Management 
and Budget under the Paperwork Reduction Act.

[[Page 15428]]

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: March 30, 2009.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108 447.
    2. In Sec.  679.82, paragraph (f)(3) is removed, paragraph (f)(4) 
is redesignated as paragraph (f)(3), and newly redesignated paragraphs 
(f)(3)(i)(A), (f)(3)(ii)(A) and paragraph (g)(3) are revised to read as 
follows:


Sec.  679.82  Rockfish Program use caps and sideboard limits.

* * * * *
    (f) * * *
    (3) * * *
    (i) * * *
    (A) Any vessel in the rockfish cooperative does not meet monitoring 
standards established under paragraph (f)(3)(iii) of this section; and
* * * * *
    (ii) * * *
    (A) Any vessel in the rockfish cooperative does not meet monitoring 
standards established under paragraph (f)(3)(iii) of this section; and
* * * * *
    (g) * * *
    (3) Prohibition from directed fishing in GOA groundfish fisheries. 
If a vessel named on an LLP license used in the rockfish limited access 
fishery has been assigned rockfish QS greater than an amount equal to 5 
percent of the Pacific ocean perch rockfish QS allocated to the 
catcher/processor sector, then that vessel may not participate in any 
GOA groundfish fishery and adjacent waters open by the State of Alaska 
for which it adopts the applicable Federal fishing season for that 
species other than the rockfish limited access fishery and sablefish 
harvested under the IFQ Program.
* * * * *
[FR Doc. E9-7557 Filed 4-3-09; 8:45 am]
BILLING CODE 3510-22-S