Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act Sideboards, 30052-30139 [E7-9828]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 103 (Wednesday, May 30, 2007)]
[Proposed Rules]
[Pages 30052-30139]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-9828]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 679



 Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering 
Sea/Aleutian Islands Fishery Resources; American Fisheries Act 
Sideboards; Proposed Rule

Federal Register / Vol. 72 , No. 103 / Wednesday, May 30, 2007 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070430096-7096-01; I.D. 041307D]
RIN 0648-AU68


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act 
Sideboards

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 issues a proposed rule to implement Amendment 80 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (FMP). Amendment 80 (hereinafter the 
``Program'') primarily would allocate several Bering Sea and Aleutian 
Islands (BSAI) non-pollock trawl groundfish fisheries among fishing 
sectors, and facilitate the formation of harvesting cooperatives in the 
non-American Fisheries Act (AFA) trawl catcher/processor sector. The 
Program would establish a limited access privilege program (LAPP) for 
the non-AFA trawl catcher/processor sector. This proposed action is 
necessary to increase resource conservation and improve economic 
efficiency for harvesters who participate in the BSAI groundfish 
fisheries. This action is intended to promote the goals and objectives 
of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 
the FMP, and other applicable law.

DATES: Comments must be received no later than June 29, 2007.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. Comments may be submitted by:
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Hand Delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
     Fax: 907-586-7557.
     E-mail: 0648-AU68PR80@noaa.gov. Include in the subject 
line of the e-mail the following document identifier: ``Amendment 80 
RIN 0648-AU68.'' E-mail comments, with or without attachments, are 
limited to 5 megabytes.
     Webform at the Federal eRulemaking Portal: https://
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS (see ADDRESSES) and by e-mail to 
David--Rostker@omb.eop.gov or by fax to 202-395-7285.
    Copies of Amendment 80 and the Environmental Assessment/Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for 
this action may be obtained from the NMFS Alaska Region at the address 
above or from the Alaska Region Web site at https://www.fakr.noaa.gov/
sustainablefisheries.htm.

FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or 
glenn.merrill@noaa.gov.

SUPPLEMENTARY INFORMATION: The North Pacific Fishery Management Council 
(Council) has submitted Amendment 80 for review by the Secretary of 
Commerce (Secretary), and a notice of availability of the FMP amendment 
was published in the Federal Register on April 30, 2007 (72 FR 21198) 
with comments on the FMP amendment invited through June 29, 2007.

Table of Contents

I. Development of the Program
    A. History of Bycatch and Discard Reduction Efforts in the BSAI
    B. The Non-Pollock Trawl Groundfish Fisheries
    C. Limited Access Privilege Programs (LAPPs)
    D. LAPPs, Groundfish Retention Standard (GRS), and Reduced 
Prohibited Species Catch (PSC)
    E. Overview of the Program
II. Legislation Affecting the Program
    A. The Capacity Reduction Program (CRP)
    B. The Coast Guard Act
    C. The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA)
III. Nonspecified Reserve and the Community Development Quota (CDQ) 
Program
    A. Nonspecified Reserve
    B. CDQ Reserves
    C. Prohibited Species Quota (PSQ) Allocations
    D. Monitoring and Enforcement (M&E)
    E. Other Revisions
IV. Allocations of Initial Total Allowable Catch (ITAC) and PSC
    A. Apportionment of ITAC Between the Sectors
    B. PSC Apportionment to the CDQ Program and Between the Sectors
    C. Rationale for Allocations
    D. Integrating Amendment 85 and the Program
V. BSAI Trawl Limited Access Sector
    A. Allocations to the BSAI Trawl Limited Access Sector
    B. Calculation of AFA Groundfish Sideboard Limits in the BSAI
    C. AFA Sideboard Limits for Halibut and Crab PSC in the BSAI
    D. AFA Yellowfin Sole Sideboard Limit in the BSAI
    E. Reallocating Pacific Cod Among the Trawl Sectors
    F. Calculation of the Crab PSC Limit in the Red King Crab 
Savings Subarea (RKCSS)
    G. Effects on Non-AFA Trawl Catcher Vessels
    H. Processing and Receiving Catch
VI. Amendment 80 Quota Share (QS)
    A. Eligibility to Receive Amendment 80 QS
    B. Method for Allocating Amendment 80 QS--General Provisions
    C. Application for Amendment 80 QS
    D. Reviewing and Appealing a QS Application
    E. Assigning Amendment 80 QS Permit to an Amendment 80 Vessel 
Owner
    F. Assigning an Amendment 80 QS Permit to an Amendment 80 
License Limitation Program (LLP) License for Lost or Ineligible 
Vessels
    G. Transferring QS
    H. Issuance of QS After the Fishing Year Begins
    I. Method for Allocating QS--Specific Provisions
VII. Amendment 80 Cooperatives
    A. Requirements for Forming an Amendment 80 Cooperative
    B. Application for Cooperative Quota (CQ)
    C. Economic Data Report (EDR) Submission and CQ
    D. Issuing Amendment 80 Species CQ
    E. Issuing PSC CQ
    F. Restrictions While Fishing for Amendment 80 Cooperatives
    G. Joint and Several Liability
    H. Rollover of ITAC, Incidental Catch Allowance (ICA), and PSC 
from the BSAI Trawl Limited Access Sector
    I. CQ Transfers
    J. Fishing Non-Allocated Groundfish Species
VIII. Amendment 80 Limited Access Fishery
    A. Membership in the Amendment 80 Limited Access Fishery
    B. Application for the Amendment 80 Limited Access Fishery
    C. Management of the Amendment 80 Limited Access Fishery
    D. ITAC and PSC Assigned to the Amendment 80 Limited Access 
Fishery
    E. Fishing Non-Allocated Groundfish Species
IX. Use Caps
    A. LAPPs and Use Caps
    B. Person Use Caps
    C. Vessel Use Cap
    D. Transfer Limitations
X. Gulf of Alaska (GOA) Sideboard Limits
    A. Need for GOA Sideboard Limits
    B. GOA Sideboard Management
    C. GOA Groundfish Sideboard Limits
    D. GOA Halibut PSC Sideboard Limits
    E. GOA Flatfish Fisheries Prohibition
    F. Provisions for the F/V GOLDEN FLEECE
XI. Example of Allocations Under the Program
    A. Example of Annual TAC and PSC Allocations

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    B. Example of Amendment 80 QS Allocations
    C. Example of Allocations to an Amendment 80 Cooperative and the 
Amendment 80 Limited Access Fishery
    D. Example of AFA Sideboard Limits
XII. Monitoring and Enforcement (M&E)
    A. Observers
    B. Flow Scales
    C. Observer Sampling Station
    D. Special Catch Handling Requirements for Non-AFA Trawl 
Catcher/Processors
    E. M&E Requirements for Amendment 80 Vessels in the GOA
    F. M&E Requirements for the F/V GOLDEN FLEECE in the GOA
    G. Consistency with Central GOA Rockfish Program M&E 
Requirements
    H. Summary Table
XIII. Economic Data Report
    A. Background
    B. Information Collected
    C. Who Must Provide an EDR
    D. Submission Deadlines for EDRs
    E. Verification of Data
XIV. Classification

I. Development of the Program

A. History of Bycatch and Discard Reduction Efforts in the BSAI

    The Council has long recognized the need to reduce bycatch, 
minimize waste, and improve utilization of fish resources to the extent 
practicable in order to provide the maximum benefit to present and 
future generations of fishermen, associated fishing industry sectors, 
communities, and the Nation as a whole. The Council has recommended, 
and NMFS has approved numerous measures to reduce discards and bycatch 
of groundfish species over the past several years.
    The Council recommended and NMFS implemented management measures to 
establish retention and utilization standards for pollock and Pacific 
cod under Amendment 49 to the FMP (62 FR 63880; January 3, 1998). More 
recently, in June 2003, the Council recommended Amendment 79 to the FMP 
to improve retention of groundfish species by implementing a GRS. The 
GRS applies to catcher/processor vessels using trawl gear that are 
greater than or equal to 125 ft. (38.1 m) and not specifically defined 
as catcher/processors listed as eligible to participate in the directed 
pollock fishery under section 208(e) of the AFA. These catcher/
processors are commonly referred to as non-AFA trawl catcher/
processors.
    The Council's analysis of groundfish retention rates in the BSAI 
groundfish fishery revealed that vessels in the non-AFA trawl catcher/
processor sector had the lowest retained catch rates of any groundfish 
trawl fishery in the BSAI. This analysis also noted that non-AFA trawl 
catcher/processors equal to or greater than 125 ft (38.1 m) in length 
overall (LOA) contributed the majority of the harvest and discarded 
catch by the non-AFA trawl catcher/processor fleet. Given the smaller, 
but still considerable, proportion of overall bycatch and discard of 
groundfish by non-AFA trawl catcher/processors less than 125 ft (38.1 
m) LOA to the overall bycatch and discard of groundfish by all non-AFA 
trawl catcher/processors, and recognizing that compliance costs 
associated with observers and scale monitoring requirements would be 
relatively higher for vessels less than 125 ft (38.1 m) LOA, non-AFA 
trawl catcher/processor vessels that are less than 125 ft (38.1 m) LOA 
were excluded from the GRS. The GRS requires each non-AFA trawl 
catcher/processor greater than or equal to125 ft (38.1 m) LOA to retain 
specific groundfish species at a specified minimum rate. The minimum 
retention rate is lower for the first year the GRS is effective in 2008 
and is gradually increased to a maximum retention rate for 2011 and in 
all years thereafter. This graduated approach to increasing the minimum 
GRS rate was designed to facilitate industry compliance with the GRS by 
providing vessel operators several years to modify and adapt fishing 
operations.
    Amendment 79 was approved by the Secretary on August 31, 2005, and 
NMFS published regulations to implement the GRS on April 6, 2006 (71 FR 
17362). Those regulations will be effective on January 20, 2008. 
Amendment 79 authorizes groundfish retention standards as a tool for 
further increasing the retention and utilization of groundfish and 
responding to bycatch reduction goals described in National Standard 9 
of the MSA. The GRS balanced the requirements for conservation and 
management of the groundfish fisheries under the MSA with the 
requirements to minimize bycatch under National Standard 9 and minimize 
economic burdens under National Standard 7 (minimize costs and avoid 
unnecessary duplication) of the MSA.
    The Council took final action to recommend Amendment 80 on June 9, 
2006. Amendment 80 and the implementing Program would continue 
initiatives by the Council and NMFS to reduce bycatch and discard of 
fish species in the BSAI non-pollock trawl groundfish fisheries. The 
Program would (1) Extend the application of the GRS to non-AFA trawl 
catcher/processor vessels of all sizes by including catcher/processor 
vessels under 125 ft (38.1 m) LOA; and (2) reduce the amount of halibut 
and crab bycatch known as prohibited species catch (PSC) that may be 
taken while non-AFA trawl catcher/processors are groundfish fishing in 
the BSAI. These measures would consider efficiency in utilization of 
fishery resources, minimize costs, and further minimize bycatch to the 
extent practicable, thereby meeting the objectives of National 
Standards 5, 7, and 9 of the MSA.
    The Program would facilitate this improved retention and 
utilization of groundfish resources through specific economic 
incentives provided by a LAPP. It is anticipated that LAPPs would 
encourage improved retention and utilization of fishery resources by 
allocating specific amounts of certain non-pollock groundfish species, 
halibut PSC, and crab PSC to non-AFA trawl catcher processors; and 
permit the formation of cooperatives that would receive exclusive 
harvest privileges for a portion of these fishery resources. The ways 
in which the use of exclusive harvest privileges would improve the 
retention and utilization of fishery resources by non-AFA trawl 
catcher/processors are described in Parts B and C of Section I below.

B. The Non-Pollock Trawl Groundfish Fisheries

    One of the primary reasons for the relatively high discard rates of 
groundfish by non-AFA trawl catcher/processors is the nature of the 
fisheries in which those vessels participate. The non-AFA trawl 
catcher/processor sector primarily participates in non-pollock 
groundfish fisheries. The non-pollock groundfish fisheries are 
primarily comprised of groups of species that share similar habitat 
(e.g., flatfish fisheries such as rock sole, flathead sole, and 
yellowfin sole). Because these species occur together, they are 
typically harvested together. When a non-AFA trawl catcher/processor 
retrieves its net, very often multiple species of fish are present. If 
a vessel operator is targeting only one species of fish, and other 
species are retrieved along with the desired catch, the vessel operator 
may have an incentive to discard the less valuable species and retain 
only the higher value species. The multi-species nature of these 
fisheries makes it difficult for vessel operators to target only one 
species, and an economic incentive is created to discard fish.
    NMFS establishes a total allowable catch (TAC) for each of the non-
pollock groundfish fisheries based on the species's annual biomass with 
the goal of providing a conservatively managed sustainable yield. 
Harvesters compete for the TAC, resulting in a ``race for

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fish,'' wherein vessels attempt to maximize their harvest in as little 
time as possible, in order to claim a larger share of the available 
TAC. This race for fish only increases the economic incentive to 
discard less valuable species in a multi-species harvest, and 
accelerates the harvest rate for the more valuable species.
    Because vessel operators are competing with each other for shares 
of a common TAC, a vessel operator has little economic incentive to 
undertake actions to reduce unwanted incidental catch, such as 
searching for fishing grounds with lower bycatch rates, or using gear 
modifications that may reduce bycatch but have lower harvest rates, if 
those actions would limit the ability of that vessel to effectively 
compete with other vessels. Additionally, a vessel operator has little 
incentive to process and store less valuable species if by doing so, he 
loses an opportunity to use that processing or storage capacity for 
more valuable catch. Therefore, an individual vessel operator has 
strong incentives to harvest fish as quickly as possible, and discard 
less valuable species before the TAC limit is reached because all 
vessel operators are competing for a limited TAC.
    Additionally, non-pollock groundfish fisheries are constrained by 
catch limits for non-target species, such as halibut, red king crab, 
Chinocetes bairdi crab, and C. opilio crab. Halibut and crab are 
harvested in other fisheries and cannot be retained by vessels using 
trawl gear. NMFS establishes PSC limits for halibut in the entire BSAI, 
and red king crab, C. opilio crab, and C. bairdi crab in specific areas 
of the BSAI to limit the adverse impact of harvesting operations on the 
long-term productivity of those species. NMFS monitors these PSC 
limits, and may close or otherwise restrict trawl harvests if PSC 
limits are projected to be reached. Fishery closures due to reaching 
PSC limits can limit harvest of the groundfish TAC and reduce overall 
revenue to vessel operators and crew. As vessel operators seek to 
maximize harvest of TAC, they may accelerate fishing operations to 
maximize harvest before a crab or halibut PSC limit is reached. A 
``race for PSC'' further exacerbates competition and the incentives to 
harvest rapidly, resulting in greater potential waste and higher 
discard rates of less valuable groundfish species.
    The multi-species nature of non-pollock groundfish fisheries 
further limits the ability of a fisherman to specifically target 
valuable groundfish species as they race with their competitors. Vessel 
operators may discard considerable portions of their catch to maximize 
harvests of more valuable species even though the discarded species may 
have considerable market value.

C. LAPPs

    The primary method to offset the economic incentives that lead to a 
race for fish and relatively high discard rates is to reduce the impact 
of those incentives through a LAPP. LAPPs have been used extensively in 
the North Pacific as a means to encourage economic efficiency and less 
wasteful harvest methods, and to resolve allocation disputes among 
harvesters by providing a group of harvesters with exclusive harvest 
privileges that can be traded. North Pacific LAPPs include (1) The 
halibut and sablefish individual fishing quota (IFQ) Program (November 
9, 1993, 58 FR 59375); (2) the AFA (December 30, 2002; 67 FR 69692); 
(3) the BSAI Crab Rationalization Program (March 2, 2005; 70 FR 10174); 
and (4) the Central GOA Rockfish Program (November 20, 2006; 71 FR 
67210). An extensive discussion of LAPPs can be found in the EA/RIR/
IRFA prepared for this action and in the National Research Council's 
publication Sharing the Fish which was consulted and considered during 
the development of the Program.
    A LAPP allows vessel operators to make operational choices to 
reduce discard of fish because the strong incentive to maximize catch 
in the minimum amount of time has been reduced. If a vessel operator 
receives an exclusive portion of the TAC for non-pollock groundfish 
species and the associated halibut and crab PSC, he knows that he need 
not compete with other harvesters. That vessel operator can then choose 
to fish in a slower, less wasteful fashion, use modified gear with a 
lower harvest rate but which reduces bycatch, coordinate with other 
vessel operators to avoid areas of high bycatch, process fish in ways 
that yield increased value but which are possible only by slowing the 
processing rate, or otherwise operate in ways that limit bycatch. The 
examples cited in this paragraph have been used by vessel operators in 
other LAPPs in the North Pacific, and NMFS anticipates non-AFA trawl 
catcher/processors would use similar techniques to reduce bycatch.
    LAPPs can improve the profitability of fishing operators holding 
the exclusive harvest privilege. In most cases, LAPPs provide 
harvesters greater flexibility in tailoring their fishing operations to 
specific fisheries which can reduce operational costs. Additionally, 
vessel operators may reduce costs by avoiding costly improvements in 
vessel size or fishing power designed to outcompete other harvesters. 
Slower fishing rates can improve product handling and quality and 
increase the exvessel price of product. Vessel operators can also 
choose to consolidate less profitable fishing operations onto one 
vessel. Other potential advantages to the holders of exclusive harvest 
privileges have been analyzed during the development of past LAPPs.
    LAPPs can increase the costs of entering the fishery substantially 
because the permits acquire value and must be purchased prior to entry. 
Consolidation can limit employment opportunities as well. Compliance 
costs can also increase to ensure that NMFS can monitor the harvesting 
and processing of fish. Administration of LAPPs typically require 
greater effort and cost than non-LAPP fisheries due to the greater 
precision in catch accounting required to track the harvest of fish and 
proper debiting of accounts. Participants in LAPPs may also use their 
excess fishing capacity to expand operations into other fisheries that 
are not managed by LAPPs and increase the race for fish in those 
fisheries unless they are constrained. These effects and others have 
been addressed in the design of previous LAPPs by limiting the amount 
of consolidation in the fishery. Entry costs for any LAPP are likely to 
be higher than in other non-LAPP fisheries, and those costs limit the 
ability of those operators without the financial wherewithal to 
participate in these fisheries. A loan program for entry level 
participants has been established in the Halibut and Sablefish IFQ 
Program to assist entry into that LAPP, but fishery participants in 
other LAPPs must rely on other sources of financing.
    Based on extensive experience with past LAPPs, and after weighing 
potential advantages and disadvantages, the Council recommended the 
Program to create economic incentives that provide additional 
opportunities to reduce bycatch while increasing the potential for 
greater economic returns to those holding the harvest privileges. The 
Program would provide an incentive for non-AFA trawl catcher/processors 
to harvest certain species of non-pollock groundfish in a less wasteful 
manner by granting an exclusive harvest privilege to a limited number 
of harvesters. The Program would encourage participants to harvest more 
efficiently and less wastefully by allowing them to choose to (1) Form 
harvesting cooperatives with other harvesters that would receive an 
exclusive annual harvest privilege of specific groundfish species; or 
(2) fish in a limited access fishery comprised of

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fishery participants that choose not to join a cooperative. The 
principal benefits from the Program would be realized by harvesters 
that choose to join a cooperative.

D. LAPPs, GRS, and Reduced PSC

    The Council also recognized that some of the compliance costs 
associated with the GRS, particularly for non-AFA trawl catcher/
processors less than 125 ft (38.1 m) LOA could be reduced under LAPP 
management. The Council recognized that if harvesters could apply the 
GRS to a cooperative in the aggregate, by aggregating retention rates 
by all vessels in a cooperative, owners of non-AFA trawl catcher/
processors less than 125 ft (38.1 m) could choose to join a 
cooperative, assign their harvest privilege to the cooperative, and 
allow other larger vessels to harvest the cooperative's exclusive 
allocation of fish without incurring the compliance costs associated 
with monitoring the GRS. Non-AFA trawl catcher/vessels less than 125 ft 
(38.1 m) LOA would still receive economic benefits from their harvests 
but would not need to refit their vessels to meet the additional M&E 
requirements and pay the additional costs to fish in the BSAI. Those 
vessels could continue to participate in other fisheries in the GOA. 
Furthermore, the catch associated with smaller catcher/processor 
vessels would be subject to the GRS, thereby further improving 
retention of groundfish and reducing discards of fish.
    Additionally, for those non-AFA trawl catcher/processor vessels 
that do fish under a cooperative's exclusive harvest privilege, the 
costs associated with retaining less valuable fish required under the 
GRS may be offset by increased profitability from those vessels because 
they are no longer operating in a race for fish. The Council considered 
these factors in recommending that the GRS be extended to all non-AFA 
trawl catcher/processors under the Program.
    The Council also recognized that LAPP management under a 
cooperative allocation can encourage lower bycatch as described in Part 
D of Section I above. Because vessel operators in cooperatives are 
better able to target catch and can engage in voluntary agreements to 
avoid areas with higher PSC, the Council recommended an overall 
reduction in the amount of halibut and crab PSC that may be used by the 
non-AFA trawl catcher/processor sector. The Program would incorporate 
this recommendation, furthering the Council's goals to reduce bycatch 
and discard of fishery species.

E. Overview of the Program

    The rationale behind specific aspects of the Program are provided 
in greater detail later in this preamble. The Council adopted the 
Program to meet the broad goals of (1) Improving retention and 
utilization of fishery resources by the non-AFA trawl catcher/processor 
fleet by extending the GRS to non-AFA trawl catcher/processor vessels 
of all lengths in that sector; (2) allocating fishery resources among 
BSAI trawl harvesters in consideration of historic and present harvest 
patterns and future harvest needs; (3) authorizing the allocation of 
groundfish species to harvesting cooperatives and establishing a LAPP 
for the non-AFA trawl catcher/processors to encourage fishing practices 
with lower discard rates, and improve the opportunity for increasing 
the value of harvested species while lowering potential costs; and (4) 
limiting the ability of non-AFA trawl catcher/processors to expand 
their harvesting capacity into other fisheries not managed under a 
LAPP.
    As with all other LAPPs in the North Pacific, the extensive changes 
to existing management of BSAI non-pollock trawl fisheries proposed by 
the Program would affect a wide range of fishing practices and 
regulations. The Program would affect management of the non-AFA trawl 
catcher/processors, other BSAI trawl fishery participants, and other 
harvesters in the North Pacific. As such, the Program proposes a 
complex suite of measures to ensure the goals of the Program are met 
and minimize potential adverse impacts on affected fishery 
participants.
    The following section provides an overview of the suite of measures 
the Program proposes to implement. Each Program element will be 
addressed in detail in subsequent sections of this preamble.
1. Community Development Quota (CDQ) Program Changes
    The Program would incorporate statutory mandates in the MSA as 
amended by Section 416 of the Coast Guard and Maritime Transportation 
Act of 2006 (Pub. L. 109-241; July 11, 2006), and the Magnuson-Stevens 
Fishery Conservation and Management Reauthorization Act (Pub. L. 109-
479, January 12, 2007). The proposed rule would modify the percentage 
of TAC for directed fisheries that are allocated to the CDQ Program, 
and the percentage of halibut, crab, and non-Chinook salmon PSC 
allocated to the CDQ Program as prohibited species quota (PSQ). The 
proposed rule includes other provisions necessary to bring Amendment 80 
and the CDQ Program into compliance with applicable law as described in 
Section II of this preamble.
2. Amendment 80 Sector and Amendment 80 Vessels
    Eligible Program participants would be defined by applicable 
legislation and the Program. Applicable legislation is described in 
greater detail in Section II of this preamble. The Program would 
incorporate statutory mandates in section 219 of the Consolidated 
Appropriations Act of 2005 (Pub. L. 108-447; December 8, 2004) which 
defines who is eligible to harvest fish in the non-AFA catcher/
processor sector for a defined list of non-pollock groundfish species. 
The Program would define the ``Amendment 80 sector'' as non-AFA trawl 
catcher/processor harvesters eligible to fish under this statutory 
mandate. The defined list of non-AFA trawl catcher/processor vessels 
that may be used to fish in the Amendment 80 sector are ``Amendment 80 
vessels.''
3. Amendment 80 Species
    The Program would allocate a specific portion of six non-pollock 
groundfish species among trawl fishery sectors. These six species would 
be the ``Amendment 80 species,'' and include Aleutian Islands (AI) 
Pacific ocean perch (POP), BSAI Atka mackerel, BSAI flathead sole, BSAI 
Pacific cod, BSAI rock sole, and BSAI yellowfin sole. These Amendment 
80 species would be allocated between the Amendment 80 sector and all 
other BSAI trawl fishery participants not in the Amendment 80 sector. 
These other trawl fishery participants include AFA catcher/processors, 
AFA catcher vessels, and non-AFA catcher vessels. Collectively, this 
group of trawl fishery participants comprises the ``BSAI trawl limited 
access sector.''
    These six species are economically valuable and have historically 
been targeted by non-AFA trawl catcher/processors, but fisheries 
associated with these species have high rates of discard or waste 
relative to other groundfish fisheries. Other species, such as Alaska 
plaice, are occasionally harvested in the BSAI trawl fisheries, but 
these other species are a minor component of the overall biomass and 
value of non-pollock groundfish harvested, less subject to an intense 
race for fish, and would not be allocated under the Program.
4. Allocations of TAC and PSC in the BSAI Trawl Fisheries
    Each year, the Program would allocate an amount of Amendment 80 
species

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available for harvest, called the initial total allowable catch (ITAC), 
and crab and halibut PSC to two defined groups of trawl fishery 
participants: (1) The Amendment 80 sector; and (2) the BSAI trawl 
limited access sector. Allocations made to one sector would not be 
subject to harvest by participants in the other fishery sector except 
under a specific condition. Fish that are allocated to the BSAI trawl 
limited access sector and projected to be unharvested could be 
reallocated to Amendment 80 cooperatives.
    The ITAC represents an amount of the TAC for each Amendment 80 
species that is available for harvest, after accounting for allocations 
to the CDQ Program and the incidental catch allowance (ICA). The ICA is 
set aside for the incidental harvest of an Amendment 80 species while 
targeting other groundfish species in non-trawl fisheries (e.g., 
yellowfin sole incidental harvests in the hook-and-line Pacific cod 
fishery) and in the BSAI trawl limited access sector fisheries (e.g., 
rock sole incidentally harvested by AFA trawl catcher vessels in the 
Pacific cod fishery).
    The Program would allocate crab and halibut PSC to the Amendment 80 
and BSAI trawl limited access sectors to accommodate PSC use by these 
sectors based on past PSC use with specific consideration given to 
possible future requirements. The Program would further address the 
Council's goals of reducing bycatch and discard of groundfish species 
by reducing the total amount of crab and halibut PSC assigned to the 
Amendment 80 sector.
5. BSAI Trawl Limited Access Sector
    The Program would provide a specific allocation of Amendment 80 
species and crab and halibut PSC to this sector. The Program would 
modify the calculation of AFA sideboard limits for Amendment 80 species 
and crab and halibut PSC limits necessary to allow the efficient 
operation of AFA vessels. The Program would adjust the maximum limit 
for red king crab bycatch in the Red King Crab Savings Subarea (RKCSS).
6. Amendment 80 Quota Share
    The Program would assign Amendment 80 quota share (QS) for 
Amendment 80 species to the owners of Amendment 80 vessels. The 
Amendment 80 QS could be used to yield an exclusive harvest privilege 
for a portion of the Amendment 80 sector ITAC. The Program would 
establish criteria for harvesters in the Amendment 80 sector to apply 
for and receive QS, criteria for initially allocating QS, and criteria 
for the transfer of QS.
    The Program would assign Amendment 80 QS based on historic catch 
patterns of an Amendment 80 vessel during 1998 through 2004. The 
Program would assign QS based on the relative proportion of an 
Amendment 80 species harvested by an Amendment 80 vessel compared to 
all other Amendment 80 vessels.
    The Program would assign Amendment 80 QS only to persons who submit 
a timely and complete application for Amendment 80 QS. In most cases, 
the Program would assign the Amendment 80 QS to the Amendment 80 vessel 
owner. In specific cases where an Amendment 80 vessel has been lost or 
is otherwise permanently ineligible to fish in U.S. waters, the Program 
would assign the Amendment 80 QS to the holder of the license 
limitation program (LLP) license originally assigned to that Amendment 
80 vessel. Once Amendment 80 QS is assigned based on the historic catch 
patterns of an Amendment 80 vessel, it could not be divided or 
transferred separately from that Amendment 80 vessel. If the Amendment 
80 QS is assigned to the LLP license originally issued for that 
Amendment 80 vessel, it could not be transferred separately from that 
LLP license.
7. Amendment 80 Cooperatives
    Persons that receive Amendment 80 QS would be able to join a 
cooperative to receive an exclusive harvest privilege for a portion of 
the ITAC. Amendment 80 QS holders would be able to form a cooperative 
with other Amendment 80 QS holders on an annual basis, provided they 
meet specific criteria. Each Amendment 80 cooperative would receive an 
annual cooperative quota (CQ), an amount of Amendment 80 species ITAC 
that would be for the exclusive use by that cooperative for harvest in 
a given year. The Program would establish requirements for forming an 
Amendment 80 cooperative with other Amendment 80 QS holders, the 
allocation of annual CQ to a cooperative, and transfers of CQ among 
cooperatives. A cooperative would receive an amount of CQ equivalent to 
the proportion of QS held by all of the members of the cooperative 
relative to the total QS held by all Amendment 80 QS holders.
    Each Amendment 80 cooperative would receive an annual CQ with an 
exclusive limit on the amount of crab and halibut PSC the cooperative 
can use while harvesting in the BSAI. This halibut and crab PSC CQ 
would be assigned to a cooperative proportional to the amount of 
Amendment 80 QS held by the members, and would not be based on the 
amount of crab or halibut PSC historically used by the cooperative 
members. This provision would not reward harvesters with high PSC rates 
with large amounts of PSC. Instead, PSC would be issued in proportion 
to the amount of Amendment 80 species that are assigned for harvest to 
a cooperative.
    The Program would provide opportunities for Amendment 80 sector 
participants to trade harvest privileges among cooperatives to further 
encourage economically efficient fishing operations. An Amendment 80 
cooperative would not be able to transfer CQ to the Amendment 80 
limited access fishery, or to the BSAI trawl limited access sector.
    A cooperative structure may allow Amendment 80 vessel operators to 
manage PSC rates more efficiently. By reducing PSC through more 
efficient cooperative operations, such as through gear modifications, 
Amendment 80 vessel operators may also increase the harvest of valuable 
targeted groundfish species and improve revenues that would otherwise 
be foregone if a fishery were closed due to reaching PSC limits.
    The Program would allow Amendment 80 cooperatives to receive a 
rollover of an additional amount of CQ, if a portion of the Amendment 
80 species or crab or halibut PSC allocated to the BSAI trawl limited 
access sector is projected to go unharvested. This rollover to the 
Amendment 80 cooperatives would be at the discretion of NMFS based on 
projected harvest rates in the BSAI trawl limited access sector and 
other criteria. Each Amendment 80 cooperative would receive an 
additional amount of CQ that is based on the proportion of the 
Amendment 80 QS held by that Amendment 80 cooperative as compared with 
all other Amendment 80 cooperatives.
    Fishery participants in a cooperative could consolidate fishing 
operations on a specific Amendment 80 vessel or subset of Amendment 80 
vessels, thereby reducing M&E and other operational costs, and harvest 
fish in a manner more likely to be economically efficient and less 
wasteful.
8. Amendment 80 Limited Access Fishery
    Amendment 80 QS holders that choose not to join an Amendment 80 
cooperative would be able to participate in the Amendment 80 limited 
access fishery. The Program would assign the Amendment 80 limited 
access fishery the amount of the Amendment 80 sector's allocation of 
Amendment 80

[[Page 30057]]

species ITAC and halibut and crab PSC that remains after allocation to 
all of the Amendment 80 cooperatives. Participants fishing in the 
Amendment 80 limited access fishery would continue to compete with each 
other; would not realize the same potential benefits from consolidation 
and coordination; and would not receive an exclusive harvest privilege 
that accrues to members of an Amendment 80 cooperative.
9. Use Caps
    The Council considered the effect of consolidation with the 
allocation of an excessive share of harvest privileges to Amendment 80 
cooperatives. In response, the Program would implement use caps to 
limit the amount of Amendment 80 QS a person could hold, the amount of 
CQ they could use, and the amount of ITAC an Amendment 80 vessel could 
harvest. These use caps would moderate some of the potentially adverse 
effects of excessive consolidation of fishing operations on fishery 
participants, such as lost employment opportunities for fishing crew 
while recognizing the desire to provide economic efficiencies to 
Amendment 80 QS holders.
10. Gulf of Alaska (GOA) Sideboard Limits
    Catch limits, commonly known as sideboards, would limit the ability 
of participants eligible for this Program to expand their harvest 
efforts in the GOA. The Program is designed to provide certain economic 
advantages to participants. Program participants could use this 
economic advantage to increase their participation in other fisheries, 
primarily in the GOA fisheries, adversely affecting the participants in 
those fisheries. GOA groundfish and halibut PSC sideboards would limit 
the catch by Amendment 80 vessels to historic levels in the GOA. The 
Program would limit the total amount of catch in other groundfish 
fisheries that could be taken by Amendment 80 vessels, including 
harvests made in the State of Alaska (State) waters which are open 
during Federal fishing seasons to allow the harvest of fish assigned to 
the Federal TAC--the ``parallel'' groundfish fisheries.
    Sideboards would limit harvest of Pacific cod, pollock, and 
rockfish fisheries in the GOA, the eligibility of Amendment 80 vessels 
to participate in GOA flatfish fisheries, and the amount of halibut PSC 
that Amendment 80 vessels could catch when harvesting groundfish in the 
GOA. Sideboards would apply to all Amendment 80 vessels and all LLP 
licenses that can be used on an Amendment 80 vessel.
11. Monitoring and Enforcement (M&E)
    M&E provisions are necessary for accurate catch accounting and 
compliance with the Program to ensure that Amendment 80 QS holders 
maintain catches within annual CQ and ITAC allocations in the BSAI and 
do not exceed sideboard limits in the GOA. The M&E measures proposed 
for the Program are similar to those currently required for compliance 
with Amendment 79, and mirror those in place for catcher/processor 
vessels participating in the Central GOA Rockfish Program (see 
regulations in Sec.  679.84 for additional detail).
12. GRS Requirements
    Under the Program, all non-AFA trawl catcher/processor vessels, 
which includes all Amendment 80 vessels, regardless of size, would be 
required to meet GRS requirements in the BSAI. For Amendment 80 vessels 
harvesting in the BSAI under the authority of an Amendment 80 
cooperative, GRS requirements would apply collectively to all vessels 
harvesting under the authority of the cooperative rather than on a 
vessel-specific basis. An Amendment 80 cooperative would be required to 
meet the GRS on an aggregate basis for all vessels in the Amendment 80 
cooperative. The Program would modify some of the GRS provisions 
scheduled for implementation on January 20, 2008 (April 6, 2006; 71 FR 
17362). Specifically, the Program would modify the GRS by extending the 
GRS to all non-AFA trawl catcher/processor vessel sizes and calculate 
the GRS for Amendment 80 vessels assigned to an Amendment 80 
cooperative on an aggregate basis.
13. Economic Data Report (EDR)
    The Program would implement an economic data collection program to 
assess the impacts of Amendment 80 on various components of the 
fishery, including skippers and crew. The Program would establish a 
process for collecting and reviewing economic data generated under 
Amendment 80 by requiring the annual submission of an EDR from each 
Amendment 80 QS holder.

II. Legislation Affecting the Program

    Eligibility to participate in the Program and ITAC allocation under 
the Program are affected by several pieces of recent legislation:
     Section 219 of the Consolidated Appropriations Act of 2005 
(Pub. L. 108-447; December 8, 2004), referred to in this proposed rule 
as the Capacity Reduction Program (CRP), which defined the Amendment 80 
sector and implemented a capacity reduction program for several 
catcher/processor sectors;
     Section 416 of the Coast Guard and Maritime Transportation 
Act of 2006 (Pub. L. 109-241; July 11, 2006), referred to in this 
proposed rule as the Coast Guard Act, which amended provisions of the 
CDQ Program in the MSA; and
     The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (Pub. L. 109-479, January 12, 2007), referred to in 
this proposed rule as the MSRA, which modified provisions related to 
the CDQ Program and instituted other measures applicable to LAPPs.
    The following sections detail the effects of the CRP, Coast Guard 
Act, and MSRA on the development of the Program and this proposed rule. 
These pieces of legislation directly dictate specific elements of the 
Program.

A. The Capacity Reduction Program (CRP)

    Among other things, the CRP legislates who may participate in the 
non-AFA trawl catcher/processor sector in the BSAI for ``non-pollock 
groundfish fisheries;'' and defines the non-pollock groundfish 
fisheries in the BSAI as ``target species of Atka mackerel, flathead 
sole, Pacific cod, Pacific ocean perch, rock sole, turbot, or yellowfin 
sole harvested in the BSAI.'' Because all of the Amendment 80 species 
are included in the CRP's definition of non-pollock groundfish fishery, 
the CRP's eligibility requirements for the non-AFA trawl catcher/
processor sector apply to the Program's eligibility criteria for the 
Amendment 80 sector. Therefore, the Program would incorporate the CRP's 
definition of a non-AFA trawl catcher/processor.
1. Eligibility To Participate in the Non-AFA Trawl Catcher/Processor 
Sector (Amendment 80 Sector)
    The CRP defines the non-AFA trawl catcher/processor sector as the 
owner of each trawl catcher/processor that
     Is not an AFA trawl catcher/processor listed in paragraphs 
(1) through (20) of section 208(e) of the AFA;
     Was issued a valid LLP license endorsed for Bering Sea or 
Aleutian Islands trawl catcher/processor fishing activity; and
     The Secretary determines has harvested with trawl gear and 
processed not less than a total of 150 mt of non-

[[Page 30058]]

pollock groundfish during the period January 1, 1997, through December 
31, 2002.
    Based on a review of harvest data from 1997 through 2002, NMFS has 
identified 28 vessels that appear to meet the requirements of the CRP 
listed above. Those 28 vessels are identified in the following Table 1.

                 Table 1.--List of Amendment 80 Vessels
------------------------------------------------------------------------
        Name of Amendment 80 vessel           USCG documentation number
------------------------------------------------------------------------
ALASKA JURIS..............................  569276
ALASKA RANGER.............................  550138
ALASKA SPIRIT.............................  554913
ALASKA VICTORY............................  569752
ALASKA VOYAGER............................  536484
ALASKA WARRIOR............................  590350
ALLIANCE..................................  622750
AMERICAN NO I.............................  610654
ARCTIC ROSE...............................  931446
ARICA.....................................  550139
BERING ENTERPRISE.........................  610869
CAPE HORN.................................  653806
CONSTELLATION.............................  640364
DEFENDER..................................  665983
ENTERPRISE................................  657383
GOLDEN FLEECE.............................  609951
HARVESTER ENTERPRISE......................  584902
LEGACY....................................  664882
OCEAN ALASKA..............................  623210
OCEAN PEACE...............................  677399
PROSPERITY................................  615485
REBECCA IRENE.............................  697637
SEAFISHER.................................  575587
SEAFREEZE ALASKA..........................  517242
TREMONT...................................  529154
U.S. INTREPID.............................  604439
UNIMAK....................................  637693
VAERDAL...................................  611225
------------------------------------------------------------------------

    The Program would define ``Amendment 80 vessel'' as the vessels 
listed in this table, or because there may be additional eligible 
vessels that NMFS is unaware of at this time, any vessel that meets the 
CRP's eligibility criteria for the non-AFA trawl catcher/processor 
sector. NMFS welcomes comment from members on the accuracy of this list 
of Amendment 80 vessels.
2. Cooperatives and ITAC Assigned to the Amendment 80 Sector
    The CRP does not limit the ability for the Council to recommend, 
nor the Secretary to approve and implement, management measures that 
define the amount of ITAC assigned to the Amendment 80 sector, or other 
management measures for the Amendment 80 sector not in conflict with 
the CRP or other law. Any such management measures would include: 
Establishing Amendment 80 cooperatives; allocating only some of the 
``non-pollock groundfish species'' to the Amendment 80 sector; or 
otherwise proposing measures to manage the Amendment 80 sector, or 
other non-Amendment 80 sector participating in the BSAI trawl 
fisheries.

B. The Coast Guard Act

    The Coast Guard Act amended section 305(i)(1) of the MSA by 
removing all of the CDQ Program-related requirements in effect at the 
time the legislation was enacted and replacing them with new 
requirements. The amendments to section 305(i)(1) addressed all aspects 
of management and oversight of the CDQ Program including the purpose of 
the CDQ Program; allocations of groundfish, halibut, and crab to the 
CDQ Program; allocations of quota among the CDQ groups; management of 
the CDQ fisheries; eligibility criteria for participation in the CDQ 
Program; limits on allowable investments; the creation of a CDQ 
administrative panel; compliance with State reporting requirements; a 
decennial review and allocation adjustment process; and other aspects 
of program administration and oversight by the State and NMFS, on 
behalf of the Secretary.
    The elements of the Coast Guard Act relevant to the Program are the 
species or species groups allocated to the CDQ Program under section 
305(i)(1)(B)(i) and the regulation of harvest of these allocations 
under section 305(i)(1)(B)(iv). Section 305(i)(1)(B)(ii) affects the 
percentage allocations of all of the groundfish species allocated to 
the CDQ Program, except pollock and sablefish. Because this section was 
further amended under the MSRA, it is discussed in more detail in Part 
C of this section below.
1. Groundfish Species or Species Groups Allocated to the CDQ Program
    The first provision from the Coast Guard Act that affects the CDQ 
Program and the Program is section 305(i)(1)(B)(i), which requires that 
``the annual percentage of the total allowable catch, guideline harvest 
level, or other annual catch limit allocated to the program in each 
directed fishery of the Bering Sea and Aleutian Islands shall be the 
percentage approved by the Secretary, or established by Federal law, as 
of March 1, 2006.'' Prior to this amendment, the MSA stated that ``a 
percentage of the total allowable catch of any Bering Sea fishery is 
allocated to the program.'' Since 1998, NMFS has allocated to the CDQ 
Program a percentage of each groundfish TAC category, except squid. The 
amended language in the MSA requires that only those species or species 
groups with a directed fishery in the BSAI be allocated to the CDQ 
Program. This is a more limited list of species or species groups than 
has been allocated to the CDQ Program in the past.
    Congress did not define the phrase ``directed fishery'' in the 
Coast Guard Act. However, based on the statutory language and the 
legislative history, NMFS determined that the phrase directed fishery 
for purposes of section 305(i)(1) of the MSA means a fishery for which 
sufficient TAC exists to open a directed fishery, and the species or 
species group is economically valuable enough for vessel operators to 
conduct directed fishing for that species or species group. NMFS 
applied this interpretation in the 2007 and 2008 final harvest 
specifications for the groundfish of the BSAI (March 2, 2007; 72 FR 
9451).
    The groundfish species and species groups that meet this definition 
and those that do not are shown in Table 2.

    Table 2.--Groundfish Species and Species Groups Allocated and Not
                      Allocated to the CDQ Program
------------------------------------------------------------------------
         Species and species groups allocated to the CDQ Program
-------------------------------------------------------------------------
       Management area or subarea            Species or species group
------------------------------------------------------------------------
Bering Sea (BS) and AI.................  Pollock.
BSAI...................................  Pacific cod.
BS and AI..............................  Sablefish (from both the hook-
                                          and-line and pot gear
                                          allocation and the trawl
                                          allocation of the sablefish
                                          TAC).
Eastern Aleutian Islands/Bering Sea      Atka mackerel.
 (EAI/BS), Central Aleutian Islands
 (CAI), Western Aleutian Islands (WAI).
EAI, CAI, WAI..........................  Pacific ocean perch.
BSAI...................................  Flathead sole.
BSAI...................................  Rock sole.

[[Page 30059]]

 
BSAI...................................  Yellowfin sole.
BSAI...................................  Arrowtooth flounder.
BS.....................................  Greenland turbot.
------------------------------------------------------------------------
       Species and species groups not allocated to the CDQ Program
------------------------------------------------------------------------
       Management area or subarea            Species or species group
------------------------------------------------------------------------
Bogoslof...............................  Pollock.
BSAI...................................  Alaska plaice.
BSAI...................................  Other flatfish.
AI.....................................  Greenland turbot.
BS.....................................  Pacific ocean perch.
BSAI...................................  Northern rockfish.
BSAI...................................  Shortraker rockfish.
BSAI...................................  Rougheye rockfish.
BS and AI..............................  Other rockfish.
BSAI...................................  Other species.
BSAI...................................  Squid.
------------------------------------------------------------------------

    As described in the 2007 and 2008 final harvest specifications, and 
proposed under the Program, catch of species and species groups that 
are not allocated to the CDQ Program would be managed under the 
regulations and fishery status that applies to that species or species 
group in the non-CDQ groundfish fisheries. Retention of non-allocated 
species that are closed to directed fishing would either be limited to 
maximum retainable amounts or all catch of the species will be required 
to be discarded. Notices of closures to directed fishing and retention 
requirements for these species would apply equally to both the CDQ and 
non-CDQ sectors.
    The Program would revise regulations at Sec.  679.20 that govern 
the annual specifications process for the CDQ Program. The list of 
species or species groups allocated to the CDQ Program in Sec.  679.20 
must be consistent with the definition of directed fishery for purposes 
of section 305(i)(1) of the MSA. This proposed rule would establish the 
list of species and species groups allocated to the CDQ Program in 
regulation. The allocated species or species groups could be revised in 
the future through rulemaking if circumstances change so that (1) a 
species or species group that currently is not allocated to the CDQ 
Program becomes a ``directed fishery'' in the future, or (2) a species 
or species group currently allocated to the CDQ Program is no longer a 
``directed fishery'' in the future.
    In addition to the species and species groups allocated to the CDQ 
Program, the percentage allocation of the TAC for each species or 
species group in Sec.  679.20 also must be consistent with the MSA. The 
percentage allocations of pollock and sablefish to the CDQ Program are 
governed by section 305(i)(1)(B)(i) which was implemented through the 
Coast Guard Act. Because section 305(i)(1)(B)(i) maintains current 
percentage allocations of pollock and sablefish to the CDQ Program, the 
percentage allocations for these species will continue to be those 
percentage allocations in effect on March 1, 2006. Ten percent of the 
Bering Sea subarea and Aleutian Islands subarea pollock TACs will 
continue to be allocated to the CDQ Program as directed fishing 
allowances. Twenty percent of the hook-and-line and pot gear (fixed 
gear) allocation of sablefish and 7.5 percent of the trawl allocation 
of sablefish will continue to be allocated to the CDQ Program. The 
percentage allocations of all of the other groundfish species allocated 
to the CDQ Program are addressed under section 305(i)(1)(B)(ii) of the 
MSA, which was last amended through the MSRA. These allocations are 
discussed in more detail in The MSRA below.
2. Regulation of CDQ Program Harvests
    The Coast Guard Act created a new section 305(i)(1)(B)(iv) of the 
MSA that requires that ``the harvest of allocations under the [CDQ] 
program for fisheries with individual quotas or fishing cooperatives 
shall be regulated by the Secretary in a manner no more restrictive 
than for other participants in the applicable sector, including with 
respect to the harvest of nontarget species.'' If Amendment 80 is 
approved, the authorization for allocations of Amendment 80 species to 
fishing cooperatives triggers the requirements of section 
305(i)(1)(B)(iv).
    Therefore, the regulation of harvest in a CDQ fishery may be no 
more restrictive than the regulation of the harvest in the fisheries in 
which the Amendment 80 cooperatives participate. Consistent with the 
requirements of section 305(i)(1)(B)(iv), NMFS proposes to apply to any 
non-AFA trawl catcher/processors harvesting groundfish in the CDQ 
Program the same M&E and GRS requirements that would apply to Amendment 
80 vessels harvesting groundfish in the BSAI. The proposed regulations 
for harvest by non-AFA trawl catcher/processor vessels in the CDQ 
Program are detailed in Sections III and XII of this preamble.

C. The MSRA

    The MSRA substantially amends the MSA. Pertinent to the Program, 
the MSRA includes amendments relating to LAPPs, the CDQ Program, and 
cost recovery and fee collection provisions.
    The MSRA includes provisions that affect the Program primarily by 
(1) adding definitions of a limited access privilege, limited access 
system, and a new section, 303A--Limited Access Privilege Programs, to 
the MSRA; (2) specifying the percentage of each TAC, except pollock and 
sablefish, that will be allocated to the CDQ Program starting January 
1, 2008; (3) extending the management costs for which NMFS may collect 
fees to recover costs related to LAPPs; and (4) expanding the authority 
and requirements to collect economic data from fishery participants.

[[Page 30060]]

1. LAPP Provisions
    The MSRA amended the MSA under section 3(26) to define a ``limited 
access privilege'' as ``a Federal permit, issued as part of a limited 
access system under section 303A to harvest a quantity of fish 
expressed by a unit or units representing a portion of the total 
allowable catch of the fishery that may be received or held for 
exclusive use by a person; and includes an individual fishing quota; 
but does not include community development quotas as described in 
section 305(i).''
    The MSRA amended the MSA under section 3(27) to define a ``limited 
access system'' as ``a system that limits participation in a fishery to 
those satisfying certain eligibility criteria of requirements contained 
in a fishery management plan or associated regulation.''
    The Program is specifically included as a LAPP under section 303A 
under the provisions of section 303A(i) which reads as follows:

    (i) TRANSITION RULES.--(1) IN GENERAL.--The requirements of this 
section shall not apply to any quota program, including any 
individual fishing quota program, cooperative program, or sector 
allocation for which a Council has taken final action or which has 
been submitted by a Council to the Secretary, or approved by the 
Secretary, within 6 months after the enactment of the [MSRA] except 
that--
    (A) The requirements of section 303(d) of this Act [the MSA] in 
effect on the day before the date of enactment of that Act [the 
MSRA] shall apply to any such program;
    (B) The program shall be subject to review under subsection 
(c)(1)(G) of this section not later than 5 years after the program 
implementation; and
    (C) Nothing in this subsection precludes a Council from 
incorporating criteria in this section into any such plans.

    The Council took final action to recommend Amendment 80 to the FMP 
on June 9, 2006. Therefore, section 303(i)(1) would not require the 
Program to comply with the provisions of section 303A of the MSA, other 
than a review of the Program five years after implementation under 
section 303A(i)(1)(B). The review process required under section 
303A(i)(1)(B) does not require immediate action by the Council or 
implementing regulations by the Secretary to ensure compliance with the 
MSA and those provisions are not incorporated in this proposed rule.
    Section 303A(i)(1)(C) would permit the Council to recommend 
incorporating other provisions of section 303A into the Program. Any 
such recommendations would be developed through a separate FMP 
amendment and subject to a separate rule making process in the future.
2. CDQ Provisions
    The MSRA amended section 305(i)(1)(B)(ii)(I) of the MSA to require 
that the allocation of TAC to the CDQ Program ``for each directed 
fishery of the Bering Sea and Aleutian Islands (other than a fishery 
for halibut, sablefish, pollock, and crab) shall be a total allocation 
of 10.7 percent effective January 1, 2008.'' The term ``directed 
fishery'' for purposes of this requirement is interpreted as described 
under Part B of this section above. Therefore, this requirement means 
that 10.7 percent of the TAC for Pacific cod, Atka mackerel, yellowfin 
sole, rock sole, Bering Sea Greenland turbot, arrowtooth flounder, 
flathead sole, and AI Pacific ocean perch will be allocated to the CDQ 
Program annually.
    Allocations of these species to the CDQ Program are known as ``CDQ 
reserves.'' As required by section 305(i)(1)(C) of the MSA, each of 
these allocations to the CDQ Program are further allocated among the 
CDQ groups based on the percentage allocations that were in effect on 
March 1, 2006. A table listing the percentage allocations among the CDQ 
groups was published in the Federal Register on August 31, 2006 (71 FR 
51804). All catch of each groundfish species allocated to the CDQ 
Program will continue to accrue against the CDQ group's allocation 
regardless of whether that fish was caught while directed fishing for 
that species or is incidentally caught while fishing for another 
species.
    Current regulations at Sec.  679.7(d)(5) prohibit each CDQ group 
from exceeding its allocation of any groundfish CDQ species, crab, 
halibut, or salmon PSQ. Exceeding an allocation of any groundfish CDQ 
or PSQ is a violation of 50 CFR part 679 and can result in enforcement 
action. These regulations create what is known as ``hard cap'' 
management for the groundfish CDQ species allocated under section 
305(i)(1)(B)(ii)(I) and (II) of the MSA. Each CDQ group must manage all 
of their CDQ fisheries to maintain catch within all of these CDQ 
groundfish and PSQ allocations. Reaching an allocation of one 
groundfish species limits further CDQ fishing because such fishing 
likely will result in additional catch of the groundfish species for 
which the allocation has already been reached.
    Section 305(i)(B)(ii) of the MSA was amended by the MSRA to require 
that the CDQ allocations of the species allocated under section 
305(i)(1)(B)(ii)(I) and (II) may not be exceeded. This requirement 
maintains the existing ``hard cap'' management for these CDQ 
allocations. NMFS would continue to allocate these CDQ reserves among 
the CDQ groups based on the percentage allocations required by the MSA. 
All catch by vessels fishing on behalf of a CDQ group would accrue 
against that CDQ group's allocation. Each CDQ group would continue to 
be prohibited from exceeding the amount of each CDQ reserve allocated 
to it annually. Therefore, no changes to regulations are needed to 
implement this provision of the MSRA.
    Section 305(i)(1)(C) was amended by the MSRA to require that 0.7 
percent of the 10.7 percent allocated to the CDQ Program for all of the 
groundfish species, except pollock and sablefish, shall be allocated 
among the CDQ groups by the CDQ administrative panel (CDQ Panel). The 
CDQ Panel was created under the Coast Guard Act in section 305(i)(1)(G) 
of the MSA. Each CDQ group has a representative on the CDQ Panel and 
the panel may only make decisions by unanimous vote of all six members. 
NMFS anticipates that the CDQ Panel will submit its decision about how 
to allocate the 0.7 percent of each groundfish CDQ reserve, except 
pollock and sablefish, to NMFS prior to January 1, 2008, so that NMFS 
can establish quota account balances for each of the CDQ groups. 
However, if the CDQ Panel does not submit its percentage allocations to 
NMFS, the MSA requires the Secretary to allocate this portion of the 
CDQ reserves based on the nontarget needs of the CDQ groups. 
Regulations to implement this provision of the MSA are not included in 
this proposed rule because they are outside of the scope of MSA 
requirements directly necessary to implement Amendment 80.
3. Cost Recovery
    The MSRA amended several provisions in the MSA concerning the 
collection of fees for LAPPs. Section 304(d)(2)(A) of the MSA as 
amended by the MSRA reads as follows:

    (2)(A) Notwithstanding paragraph (1), the Secretary is 
authorized and shall collect a fee to recover the actual costs 
directly related to the management, data collection, and enforcement 
of any--
    (i) limited access privilege program; and
    (ii) community development quota program that allocates a 
percentage of the to