[Federal Register Volume 61, Number 125 (Thursday, June 27, 1996)]
[Rules and Regulations]
[Pages 33382-33386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16379]


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DEPARTMENT OF COMMERCE
50 CFR Part 679

[Docket No. 960321089-6175-02; I.D. 031396B]
RIN 0648-AG41


Fisheries of the Exclusive Economic Zone off Alaska; Allow 
Processing of Non-Individual Fishing Quota Species

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


[[Page 33383]]


ACTION: Final rule.

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SUMMARY: NMFS issues a final rule that implements Amendment 33 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area and Amendment 37 to the Fishery Management 
Plan for Groundfish of the Gulf of Alaska (GOA). These amendments and 
this final implementing rule are necessary to allow fuller use of the 
fishery resources in and off of Alaska. This action is intended to 
allow persons authorized to harvest individual fishing quota (IFQ) 
sablefish to process species other than IFQ halibut and IFQ sablefish.

EFFECTIVE DATE: July 26, 1996.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review (EA/RIR) for this action may be obtained from the Fisheries 
Management Division, Alaska Region, NMFS, 709 W. 9th Street, Room 453, 
Juneau, AK 99801, or P.O. Box 21668, Juneau, AK 99802, Attention: Lori 
J. Gravel.

FOR FURTHER INFORMATION CONTACT: John Lepore, 907-586-7228.

SUPPLEMENTARY INFORMATION: As part of the President's Regulatory 
Reform Initiative, NMFS issued a final rule (61 FR 31228, June 19, 
1996) removing six parts in title 50 of the CFR (50 CFR parts 671, 
672, 673, 675, 676, and 677) and consolidated the regulations 
contained therein into one new part (50 CFR part 679). This 
consolidated regulation provides the public with a single reference 
source for the Federal fisheries regulations specific to the EEZ 
off Alaska. The restructuring of the six parts results in one set 
of regulations that is more concise, clearer, and easier to use 
than the six separate parts. NMFS also identified duplicative and 
obsolete provisions and removed those measures from the six parts. 
No substantive changes were made to the regulations by the 
consolidation or removal of duplicative and obsolete provisions. 
The consolidated final rule will become effective July 1, 1996.

    Amendments 33 and 37 allow persons authorized to harvest IFQ 
sablefish, based on an annual allocation of IFQ assigned to vessel 
categories B or C, to process species other than IFQ halibut and IFQ 
sablefish. Additional information on this action may be found in the 
preamble to the proposed rule.
    Several changes to the regulations implementing the IFQ program are 
necessary to implement Amendments 33 and 37. First, the definitions of 
``freezer vessel'' and ``catcher vessel'' (as ``catcher vessel'' 
relates to the IFQ program) are removed.
    Second, references to the removed definitions are replaced with 
alternative language. Finally, a provision is added to allow the 
processing of fish other than IFQ halibut and IFQ sablefish on board 
vessels on which persons are harvesting IFQ sablefish based on an 
annual allocation of IFQ assigned to vessel categories B and C. A 
detailed explanation of these changes follows.

Removal of the ``Freezer Vessel'' and ``Catcher Vessel'' Definitions

    After evaluating the effects that Amendments 33 and 37 would have 
on the IFQ Program, NMFS determined that the definitions of ``freezer 
vessel'' and ``catcher vessel'' at Sec. 679.2 (previously found in part 
676, subparts B and C) were unnecessary and proposed their removal. 
NMFS proposed to replace these definitions with the definition of 
``processing,'' which can be found at Sec. 679.2 (previously found at 
Secs. 672.2 and 675.2).
    The definition of processing is important to the revised 
specifications of vessel categories at Sec. 679.40(a)(5)(ii) 
(previously found in Sec. 676.20(a)(2)). Vessel category A, which 
currently is freezer vessels of any length, is changed to be vessels of 
any length authorized to process IFQ species. Quota share (QS) and the 
resulting IFQ is designated by IFQ species; therefore, a person can 
only process the IFQ species designated on the IFQ permit (i.e., IFQ 
halibut or IFQ sablefish). The authorization to process IFQ species is 
an inherent characteristic of QS assigned to vessel category A. This 
determination was made at initial issuance based on criteria found at 
Sec. 679.40(a)(5) (previously found in Sec. 676.20(c)). The other 
vessel categories found at Sec. 679.40(a)(5)(ii) (previously found in 
Sec. 676.20(a)(2)) (i.e., vessel categories B, C, and D) also do not 
refer to the removed definitions.

Other Changes to the Regulations Due to the Removal of the ``Freezer 
Vessel'' and ``Catcher Vessel'' Definitions

    As explained above, Sec. 679.40(a)(5)(ii) (previously found at 
Sec. 676.20(a)(2)) no longer refers to freezer vessels or catcher 
vessels, but rather describes vessel categories in terms of: (1) Vessel 
length; (2) specific species designations (i.e., vessel category D for 
IFQ halibut only); and (3) authorization to process IFQ species. 
Similarly, all other references in part 679, subpart D (previously 
found in part 676 subparts B and C), to freezer vessels or catcher 
vessels are removed.
    For example, Sec. 679.7(f)(13) (previously found in Sec. 676.16(o)) 
prohibits persons from having processed and unprocessed IFQ species on 
board a vessel during the same trip. This replaces the current 
prohibition on operating as a catcher vessel and a freezer vessel 
during the same trip. This change, along with the addition of 
Sec. 679.7(f)(16), allows a person authorized to harvest IFQ sablefish, 
based on an annual allocation of IFQ assigned to vessel categories B or 
C, to process fish other than IFQ halibut or IFQ sablefish, a behavior 
consistent with the intent of the North Pacific Fishery Management 
Council (Council) in proposing Amendments 33 and 37. Other sections 
from which references to freezer vessels and catcher vessels are 
removed include: Sec. 679.41(g)(1) through (4) and (h) (previously 
found in Sec. 676.21(f)(1) through (4), and (g)); and Sec. 679.42(i), 
(i)(1), and (i)(2), (j), (j)(1), and (j)(4) (previously found in 
Sec. 676.22(i), (i)(1), (i)(2), (j), (j)(1), and (j)(4)).

Processing Fish Other Than IFQ Halibut or IFQ Sablefish

    A new paragraph, Sec. 679.42(k), is added to allow processing of 
fish other than IFQ halibut or IFQ sablefish on board the harvesting 
vessel by persons authorized to harvest IFQ sablefish based on an 
annual allocation of IFQ assigned to vessel categories B or C. Without 
this change, fish other than IFQ halibut or IFQ sablefish could not be 
processed on board the harvesting vessel if, along with that fish, IFQ 
sablefish were harvested by a person authorized to harvest IFQ 
sablefish based on an annual allocation of IFQ assigned to vessel 
categories B and C. Prohibiting the processing of fish other than IFQ 
halibut or IFQ sablefish on category B or C vessels resulted in the 
unanticipated waste of fish caught incidentally with IFQ sablefish, 
because sablefish can be preserved longer on ice than some 
incidentally-caught fish (e.g., Pacific cod). The longer ``shelf life'' 
of fresh sablefish allowed a typical sablefish longline trip to exceed 
the time period in which fish other than IFQ halibut or IFQ sablefish 
maintain sufficient quality to market as fresh fish. This often 
resulted in the discard of some or all incidentally caught fish. Also, 
persons are required to retain Pacific cod and rockfish caught 
incidentally to IFQ sablefish. This forces persons authorized to 
harvest IFQ sablefish, based on an annual allocation of IFQ assigned to 
vessel categories B and C, to keep Pacific cod and rockfish caught 
incidentally with IFQ sablefish, even though the value of the Pacific 
cod and rockfish is diminished during a long sablefish trip. Amendments 
33 and 37 will eliminate the lost revenue of

[[Page 33384]]

discarding, or landing poor quality, fish other than IFQ halibut and 
IFQ sablefish due to the repealed prohibition on processing fish other 
than IFQ halibut and IFQ sablefish.
    Section Sec. 679.42(i)(2) (previously found in Sec. 676.22(i)(3)) 
was unnecessary with the addition of Sec. 679.42(k) and the removal of 
the definitions of ``freezer vessel'' and ``catcher vessel'' (as the 
term ``catcher vessel'' applies to the IFQ program). Furthermore, some 
of the provisions in Sec. 679.42(i)(2) (previously found in 
Sec. 676.22(i)(3)) were contrary to the purposes of Amendments 33 and 
37. For example, a person could not harvest IFQ sablefish with IFQ 
assigned to vessel categories B or C if ``frozen or otherwise processed 
fish products'' were on the vessel, regardless of whether the frozen or 
otherwise processed fish were IFQ halibut or IFQ sablefish, or fish 
other than those species. The intent of this action is to allow persons 
to harvest IFQ sablefish with IFQ assigned to vessel categories B or C 
even if frozen or otherwise processed fish other than IFQ halibut or 
IFQ sablefish are on board the harvesting vessel.
    The authorization to process fish other than IFQ halibut or IFQ 
sablefish does not extend to persons authorized to harvest IFQ halibut 
based on an annual allocation of IFQ assigned to vessel categories B, 
C, or D. The Council declined to extend the IFQ sablefish exemption to 
IFQ halibut due to the socio-economic differences between the 
fisheries. The halibut fishery characteristically is prosecuted by 
local vessels that do not have on-board processing capabilities. 
Amendments 33 and 37 are not intended to change this characteristic of 
the halibut fishery. Also, not extending the authorization to process 
fish other than IFQ sablefish and IFQ halibut to persons authorized to 
harvest IFQ halibut based on an annual allocation of IFQ assigned to 
vessel categories B, C, or D is consistent with one of the objectives 
of the IFQ program (i.e., to maintain a diverse fleet where all 
segments continue to exist along with the social structures associated 
with those segments). The prohibition on processing on board the 
harvesting vessel by persons harvesting IFQ species with IFQ assigned 
to specific vessel categories is one method of accomplishing that 
objective. The Council expressed concern that, if the owners of large, 
industrial-type vessels that process their catch could harvest IFQ 
species with IFQ assigned to vessel categories B, C, or D while 
processed fish are on board, these owners would acquire the majority of 
the ``catcher vessel'' QS. The result would be an increase in 
harvesting of IFQ species on large, industrial-type vessels that 
process their catch and a decrease in harvesting of IFQ species on 
small vessels that do not have processing capabilities. These small 
vessels, which do not have processing capabilities, are more likely to 
make landings at local coastal communities. The Council determined that 
phasing out small vessels that do not have processing capabilities and 
that would not be able to compete with the large, industrial-type 
vessels that process their catch for available IFQ would have 
detrimental socio-economic impacts on coastal communities. This was 
especially true for halibut IFQ. Many coastal communities rely on the 
delivery of halibut harvested by persons operating small vessels that 
do not have processing capabilities as a source of revenue.

Response to Comments

    A comment was received from the Office of the Chief Counsel for 
Advocacy, Small Business Administration, regarding the analysis for the 
Regulatory Flexibility Act (RFA) that is contained in the EA/RIR. The 
comment concluded that the agency's language in section 4.1, Economic 
Impact on Small Entities, was ambiguous because the language stated 
that the action would positively affect sablefish catcher vessel QS 
holders. The Office of the Chief Counsel concluded that this ambiguity 
made it difficult for a reader of the analysis to determine whether the 
action would have a significant impact on a substantial number of small 
entities.
    NMFS's determination was that this action will not have a 
significant impact on a substantial number of small entities. Actions 
can have an adverse economic impact, a positive economic impact, or a 
neutral economic impact on small entities. In this case, the action 
will have a positive impact. However, the positive economic effects of 
this action mentioned in section 4.1 will not have a significant impact 
on a substantial number of small entities.
    Also, a comment was received from the U.S. Coast Guard stating that 
all enforcement and safety concerns with these amendments were 
addressed by the proposed rule.

Changes to the Proposed Rule

    The proposed rule to implement Amendments 33 and 37 was published 
in the Federal Register on April 2, 1996 (61 FR 14547) as a proposed 
amendment to 50 CFR part 676 (Limited Access Management of Federal 
Fisheries In and Off of Alaska). Effective July 1, part 676 will be 
integrated with part 679. The final rule implementing Amendments 33 and 
37 will become effective July 26, 1996; and consequently after 50 CFR 
part 676 has been integrated with 50 CFR part 679. Accordingly, the 
final rule to implement Amendments 33 and 37 has been revised to make 
the appropriate amendments to 50 CFR part 679 instead of 50 CFR part 
676.
    A new paragraph (f)(16) was added to Sec. 679.7 to specifically 
prohibit the processing of fish on board a vessel using IFQ assigned to 
vessel categories B, C, or D, except as provided in new Sec. 679.42(k). 
New section 679.42(k) authorizes limited processing of species other 
than IFQ sablefish and IFQ halibut. The addition of paragraph (f)(16) 
will eliminate any confusion caused by removing Sec. 676.42(i)(2) 
(previously found in Sec. 676.22(i)(3)).
    A cite to Sec. 676.22(i)(3) has been eliminated from proposed 
Sec. 676.22(a) (now Sec. 679.42(a)) because Sec. 676.22(i)(3) itself is 
eliminated by the new rule.

Classification

    An EA/RIR was prepared for this rule that describes the management 
background, the purpose and need for action, the management action 
alternatives, and the social impacts of the alternatives. The EA/RIR 
estimates the total number of small entities affected by this action, 
and analyzes the economic impact on those small entities. Based on the 
analysis, it was determined that this rule does not have a significant 
economic impact on a substantial number of small entities. Copies of 
the EA/RIR can be obtained from NMFS (see ADDRESSES).
    This rule has been determined to be not significant for purposes of 
E.O. 12866.

List of Subjects in 50 CFR Part 679

    Fisheries, Reporting and recordkeeping requirements.
    Dated: June 20, 1996.
Henry R. Beasley,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 679 is 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. and 1801 et seq.

    2. In Sec. 679.2, the definition of ``Freezer vessel'' is removed, 
and paragraph (3) under the definition of

[[Page 33385]]

``Catcher vessel'' is removed and paragraph (3) is reserved.
    3. In Sec. 679.7, paragraph (f)(13) is revised and a new paragraph 
(f)(16) is added to read as follows:


Sec. 679.7  General prohibitions.

* * * * *
    (13) Possess processed and unprocessed IFQ species on board a 
vessel during the same trip except when fishing exclusively with IFQ 
derived from vessel category A QS;
* * * * *
    (16) Process fish on board a vessel on which a person aboard has 
unused IFQ derived from QS issued to vessel categories B, C, or D, 
except as provided in Sec. 679.42(k) of this part;
* * * * *
    4. In Sec. 679.40, paragraph (a)(5)(ii) is revised to read as 
follows:


Sec. 679.40  Sablefish and halibut QS.

* * * * *
    (a) * * *
    (5) * * *
    (ii) Vessel categories. Quota share assigned to vessel categories 
include:
    (A) Category A quota share, which authorizes an IFQ cardholder to 
catch and process IFQ species on a vessel of any length.
    (B) Category B quota share, which authorizes an IFQ cardholder to 
catch IFQ species on a vessel greater than 60 ft (18.3 m) in length 
overall.
    (C) Category C quota share, which authorizes an IFQ cardholder to 
catch IFQ sablefish on a vessel less than or equal to 60 ft (18.3 m) in 
length overall, or which authorizes an IFQ cardholder to catch IFQ 
halibut on a vessel greater than 35 ft (10.7 m) but less than or equal 
to 60 ft (18.3 m) in length overall; and
    (D) Category D quota share, which authorizes an IFQ cardholder to 
catch IFQ halibut on a vessel less than or equal to 35 ft (10.7 m) in 
length overall.
* * * * *
    5. In Sec. 679.41, paragraphs (g) and (h) are revised to read as 
follows:


Sec. 679.41  Transfer of QS and IFQ.

* * * * *
    (g) Transfer restrictions, catcher vessel QS. (1) Except as 
provided in paragraph (f) or paragraph (g)(2) of this section, only 
persons who are IFQ crew members, or that were initially assigned QS 
assigned to vessel categories B, C, or D, and meet the other 
requirements in this section may receive QS assigned to vessel 
categories B, C, or D.
    (2) Except as provided in paragraph (g)(3) of this section, only 
persons who are IFQ crew members may receive QS assigned to vessel 
categories B, C, or D in IFQ regulatory area 2C for halibut or in the 
IFQ regulatory area east of 140 deg. W. long. for sablefish.
    (3) Individuals who were initially issued QS assigned to vessel 
categories B, C, or D may transfer that QS to a corporation that is 
solely owned by the same individual. Such transfers of QS assigned to 
vessel categories B, C, or D in IFQ regulatory area 2C for halibut or 
in the IFQ regulatory area east of 140 deg. W. long. for sablefish will 
be governed by the use provisions of Sec. 679.42(i); the use provisions 
pertaining to corporations at Sec. 679.42(j) shall not apply.
    (4) The Regional Director will not approve an Application for 
Transfer of QS assigned to vessel categories B, C, or D subject to a 
lease or any other condition of repossession or resale by the person 
transferring QS, except as provided in paragraph (h) of this section, 
or by court order, operation of law, or as part of a security 
agreement. The Regional Director may request a copy of the sales 
contract or other terms and conditions of transfer between two persons 
as supplementary information to the transfer application.
    (h) Leasing QS (applicable until January 2, 1998). A person may not 
use IFQ resulting from a QS lease for harvesting halibut or sablefish 
until an Application for Transfer complying with the requirements of 
paragraph (b) of this section and the lease agreement are approved by 
the Regional Director. A person may lease no more than 10 percent of 
that person's total QS assigned to vessel categories B, C, or D for any 
IFQ species in any IFQ regulatory area to one or more persons for any 
fishing year. After approving the Application for Transfer, the 
Regional Director shall change any IFQ accounts affected by an approved 
QS lease and issue all necessary IFQ permits. QS leases must comply 
with all transfer requirements specified in this section. All leases 
will expire on December 31 of the calendar year for which they are 
approved.
* * * * *
    6. In Sec. 679.42, paragraphs (a), (i), and (j) introductory text, 
(j)(1), and (j)(4), are revised and paragraph (k) is added to read as 
follows:


Sec. 679.42  Limitations on use of QS and IFQ.

    (a) IFQ regulatory area. The QS or IFQ specified for one IFQ 
regulatory area and vessel category must not be used in a different IFQ 
regulatory area or vessel category except as provided in 
Sec. 679.41(i)(1).
* * * * *
    (i) Use of IFQ resulting from QS assigned to vessel categories B, 
C, or D by individuals. In addition to the requirements of paragraph 
(c) of this section, IFQ cards issued for IFQ resulting from QS 
assigned to vessel categories B, C, or D must be used only by the 
individual who holds the QS from which the associated IFQ is derived, 
except as provided in paragraph (i)(1) of this section.
    (1) An individual who receives an initial allocation of QS assigned 
to vessel categories B, C, or D does not have to be on board and sign 
IFQ landing reports if that individual owns the vessel on which IFQ 
sablefish or halibut are harvested, and is represented on the vessel by 
a master employed by the individual who received the initial allocation 
of QS.
    (2) The exemption provided in paragraph (i)(1) of this section does 
not apply to individuals who receive an initial allocation of QS 
assigned to vessel categories B, C, or D for halibut in IFQ regulatory 
area 2C or for sablefish QS in the IFQ regulatory area east of 140 deg. 
W. long., and this exemption is not transferrable.
    (j) Use of IFQ resulting from QS assigned to vessel categories B, 
C, or D by corporations and partnerships. A corporation or partnership 
that receives an initial allocation of QS assigned to vessel categories 
B, C, or D may use the IFQ resulting from that QS and any additional QS 
acquired within the limitations of this section provided the 
corporation or partnership owns the vessel on which its IFQ is used, 
and it is represented on the vessel by a master employed by the 
corporation or partnership that received the initial allocation of QS. 
This provision is not transferrable and does not apply to QS assigned 
to vessel categories B, C, or D for halibut in IFQ regulatory area 2C 
or for sablefish in the IFQ regulatory area east of 140 deg. W. long. 
that is transferred to a corporation or partnership. Such transfers of 
additional QS within these areas must be to an individual pursuant to 
Sec. 676.41(c) of this part and be used pursuant to paragraphs (c) and 
(i) of this section.
    (1) A corporation or partnership, except for a publicly-held 
corporation, that receives an initial allocation of QS assigned to 
vessel categories B, C, or D loses the exemption provided under 
paragraph (j) of this section on the effective date of a change in the 
corporation or partnership from that which existed at the time of 
initial allocation.
* * * * *
    (4) QS assigned to vessel categories B, C, or D and IFQ resulting 
from that QS held in the name of a corporation or

[[Page 33386]]

partnership that changes, as defined in this paragraph, must be 
transferred to an individual, as prescribed in Sec. 679.41 of this 
part, before it may be used at any time after the effective date of the 
change.
    (k) Processing of fish other than IFQ halibut and IFQ sablefish. 
Fish other than IFQ halibut or IFQ sablefish may be processed on a 
vessel on which persons:
    (1) Are authorized to harvest IFQ halibut or IFQ sablefish based on 
allocations of IFQ resulting from QS assigned to vessel category A; or
    (2) Are authorized to harvest IFQ sablefish based on allocations of 
IFQ resulting from QS assigned to vessel categories B or C unless any 
person aboard the vessel is authorized to harvest IFQ halibut based on 
allocations of IFQ resulting from QS assigned to vessel categories B, 
C, or D.

[FR Doc. 96-16379 Filed 6-26-96; 8:45 am]
BILLING CODE 3510-22-W