Fisheries of the Exclusive Economic Zone Off Alaska; Individual Fishing Quota Program; Community Development Quota Program, 44795-44812 [E7-15341]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 153 (Thursday, August 9, 2007)]
[Rules and Regulations]
[Pages 44795-44812]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15341]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0612242964-7332-02; I.D. 080106C]
RIN 0648-AS84


Fisheries of the Exclusive Economic Zone Off Alaska; Individual 
Fishing Quota Program; Community Development Quota Program

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

ACTION: Final rule.

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SUMMARY: NMFS adopts a rule that modifies the Individual Fishing Quota 
(IFQ) Program for the fixed-gear commercial Pacific halibut fishery and 
sablefish fishery by revising regulations specific to those fisheries. 
This action is intended to improve the effectiveness of the Halibut and 
Sablefish IFQ Program (IFQ Program) and is necessary to promote the 
objectives of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982 
(Halibut Act) with respect to the IFQ fisheries.

DATES: Effective on September 10, 2007, except for Sec. Sec.  679.42(d) 
and 679.42(i) which contain information collection requirements that 
have not been approved by OMB. NMFS will publish a document in the 
Federal Register announcing the effective date of these paragraphs.

ADDRESSES: Copies of the Categorical Exclusion, Regulatory Impact 
Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA) 
prepared for the proposed rule and the Final Regulatory Flexibility 
Analysis (FRFA) prepared for this action may be obtained from the North 
Pacific Fishery Management Council (Council) at 605 West 4th, Suite 
306, Anchorage, Alaska 99501-2252, 907-271-2809, or NMFS Alaska Region, 
P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on the 
NMFS Alaska Region website at https://www.noaa.fakr.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS Alaska Region, and by email to 
David--Rostker@omb.eop.gov or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228 or 
jay.ginter@noaa.gov.

SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission 
(IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus 
stenolepis) through regulations established under the authority of the 
Halibut Act (16 U.S.C. 773-773k). The IPHC promulgates regulations 
governing the halibut fishery under the Convention between the United 
States and Canada for the Preservation of the Halibut Fishery of the 
Northern Pacific Ocean and Bering Sea. The IPHC's regulations are 
subject to approval by the Secretary of State with concurrence of the 
Secretary of Commerce (Secretary). NMFS publishes the approved IPHC 
regulations as annual management measures pursuant to 50 CFR 300.62. 
Additional management regulations not in conflict with regulations 
adopted by the IPHC (such as the IFQ Program) may be recommended by the 
Council and implemented by the Secretary through NMFS to allocate 
harvesting privileges among U.S. fishermen under the authority of the 
Halibut Act (16 U.S.C. 773-773k).
    The U.S. groundfish fisheries of the exclusive economic zone in the 
Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands (BSAI) are 
managed by NMFS under fishery management plans (FMPs). The FMPs were 
prepared by the Council under the Magnuson-Stevens Act (16 U.S.C. 1801 
et seq.) and are implemented by regulations at 50 CFR part 679. Fishing 
for sablefish (Anoplopoma fimbria) with hook-and-line gear is governed 
by regulations implementing the BSAI and GOA groundfish FMPs as part of 
the IFQ Program.
    Relevant background on the IFQ Program and each part of this action 
is presented in the proposed rule published November l, 2006 (71 FR 
64218). That publication proposed changes to the IFQ Program 
regulations in seven areas. This final rule adopts the following five 
changes in their entirety:
     Allow transfers of QS for medical reasons;
     Require a vessel monitoring system for vessels harvesting 
sablefish in the BSAI;
     Amend the block program for halibut by (a) allowing a QS 
holder to hold 3 blocks rather than 2, (b) dividing halibut blocks in 
Areas 3B and 4A that yield more than 20,000 lb (9.1 mt), based on the 
2004 harvest figures, into a block of 20,000 lb (9.1 mt) and the 
remainder unblocked, and (c) increasing the halibut sweep-up level in 
Areas 2C and 3A to 5,000 lb (2.3 mt);
     Allow category D QS to be fished on vessels less than or 
equal to 60 ft (18.3 m) length overall (LOA) in areas 3B and 4C; and
     Allow category B catcher vessel QS for Area 2C halibut and 
Southeast Outside District sablefish, which currently must be fished on 
vessels greater than 60 ft (18.3 m) LOA, to be fished on catcher 
vessels of any length.
    The sixth proposed change would have tightened the requirements for 
QS holders who use hired skippers by requiring specific documentation 
of vessel ownership and requiring ownership of the vessel used by the 
hired skipper for the prior 12 months. The final rule adopts the 
documentation requirement but not the 12-month ownership requirement. 
Specifically, the final rule lists the documentation a QS holder must 
submit to prove ownership of a documented vessel that a hired master 
will use. This final rule does not adopt the 12-month ownership 
requirement in the proposed rule, namely that QS holders must prove at 
least the minimum vessel ownership (20 percent ownership interest) for 
12 consecutive months prior to using a hired master. NMFS is seeking 
clarification from the Council on whether the Council wishes to exclude 
from the 12-month requirement those QS holders whose vessels need 
temporary repairs and, for that reason, have their QS fished from 
vessels that the QS holders have owned less than 12 months.
    This final rule does not adopt the seventh proposed change. The 
final rule

[[Page 44796]]

does not change the Product Recovery Rate (PRR) for bled sablefish from 
0.98 to 1.00. The Secretary disapproves this proposed rule because it 
would violate National Standard 2 of the Magnuson-Stevens Act: 
``Conservation and management measures shall be based upon the best 
scientific information available.''
    The parts of the final rule affecting the halibut fishery are 
adopted under the authority of the Halibut Act. The parts of the final 
rule affecting the sablefish fishery are adopted under the authority of 
the Magnuson-Stevens Act. This final rule also implements Amendment 67 
to the FMP for Groundfish for the Gulf of Alaska (Notice of 
Availability published October 3, 2006; 71 FR 58372), which allows 
category B QS to be fished on a vessel of any length in all areas 
(November l, 2006; 72 FR 64218). Amendment 67 was approved by the 
Secretary on January 3, 2007.
    The final rule also adopts two administrative changes that were in 
the proposed rule (November l, 2006; 72 FR 64218). The first 
administrative change clarifies the existing regulation that once an 
IFQ permit holder has caught his or her total sablefish IFQ, the IFQ 
permit holder can not catch additional IFQ sablefish in State of Alaska 
(State) or Federal waters. The second administrative change eliminates 
the term ``IFQ card'' and replaces it with ``IFQ hired master permit.'' 
The final rule extends this change to the Western Alaska Community 
Development Quota (CDQ) Program, changing the term ``CDQ card'' to 
``CDQ hired master permit.''
    The background and rationale for each part of this final rule were 
explained in the proposed rule, published November l, 2006 (71 FR 
64218). Changes made in the final rule from the proposed rule are 
explained below.

Changes in the Final Rule

    This section explains the changes from the proposed rule in the 
final rule, except editorial changes, which are not discussed.
    1. The final rule revises Sec. Sec.  679.4, 679.5, and 679.7 and 
extends the administrative change in the proposed rule regarding IFQ 
cards to the CDQ Program. The CDQ halibut fishery and the IFQ halibut 
fishery are largely subject to the same fisheries management 
regulations. The two fisheries have comparable permitting and reporting 
requirements. The final rule eliminates the term ``IFQ cards.'' To 
maintain consistency between the IFQ Program and the CDQ Program, the 
final rule also eliminates the term ``CDQ cards.'' Under the final 
rule, NMFS instead will issue ``CDQ permits'' and ``CDQ hired master 
permits.''
    As described in the proposed rule, CDQ cards, like IFQ cards, 
originally served as a catch accounting tool for identification and 
catch reporting through a swipe card computer system. NMFS has replaced 
that system with an Internet-based reporting system. Hence, CDQ cards 
are obsolete and unnecessary. CDQ hired masters will be required to 
carry an original CDQ hired master permit for identification purposes 
while fishing for or making landings of CDQ halibut and a copy of the 
CDQ permit under which they are fishing. The final rule also revises 
associated terms, such as changing ``CDQ cardholder'' to ``CDQ hired 
master permit holder.''
    2. The final rule clarifies who may seek a medical transfer 
provision of catcher vessel QS under Sec.  679.42(d). The final rule 
uses the term ``QS holder'' as the most accurate and precise term. The 
proposed rule used the term ``IFQ holder'' and ``QS holder.'' An ``IFQ 
holder'' could be confused with an ``IFQ permit holder.'' Usually, an 
IFQ permit holder will also hold QS, but a few IFQ catcher vessel 
permit holders do not hold QS because they are leasing QS from the heir 
of a deceased QS holder under Sec.  679.41(k) or from a Community Quota 
Entity under Sec.  679.41(l). The IFQ Program generally does not allow 
catcher vessel QS to be leased; however, the Council and the Secretary 
have approved leasing in these restricted situations. The person who 
leases catcher vessel QS receives an IFQ permit and is therefore an IFQ 
permit holder, but not necessarily a QS holder.
    NMFS concludes that the Council intended to allow medical transfers 
by QS holders, not the slightly larger class of IFQ permit holders. The 
IRFA, prepared by Council staff, described those eligible for the 
benefit of medical transfers as ``individual halibut or sablefish QS 
holders.'' If IFQ permit holders who are lessees could obtain a medical 
transfer of the right to fish the pounds remaining on their IFQ permit, 
those IFQ permit holders would, in essence, be subleasing QS. Because 
the basic rule in the IFQ Program is that catcher vessel QS cannot be 
leased, and because the Council has approved leasing only in strictly 
limited situations, NMFS concludes that the Council did not intend to 
allow subleasing of QS and did not intend to grant the benefit of 
medical transfers to IFQ permit holders who are fishing leased QS.
    A corollary of this conclusion is that a QS holder may obtain a 
medical transfer only of the IFQ derived from the QS certificate issued 
in the name of the QS holder. Sometimes a QS holder has IFQ derived 
from his or her QS and IFQ leased from another QS holder on the same 
IFQ permit. The QS holder may obtain a medical transfer only for the 
IFQ derived from his or her own QS. The final rule makes explicit that 
NMFS may not approve a medical transfer of leased QS.
    By specifying that a ``QS holder'' may obtain a medical transfer, 
the final rule also clarifies that an IFQ or CDQ hired master permit 
holder cannot obtain a medical transfer other than for his or her IFQ. 
If a hired master becomes sick and unable to participate in the 
fishery, the QS holder who hired the master can hire another master. 
Again, NMFS concludes that the Council did not intend to allow 
subleasing of QS, in this instance by the hired master who becomes 
sick.
    3. The final rule clarifies who may receive an emergency waiver 
under Sec.  679.42(d)(1). This provision allows NMFS to waive the 
requirements that the person authorized to fish IFQ sablefish or 
halibut be present on the vessel and sign the landing report, if that 
person experiences an extreme personal emergency during a fishing trip. 
The prior regulation stated that NMFS could waive those requirements 
for an IFQ card holder. Because the rule eliminates IFQ cards, the 
final rule states that NMFS may waive those requirements for ``a person 
authorized to fish IFQ halibut or IFQ sablefish,'' which may be an IFQ 
permit holder or an IFQ hired master permit holder.
    4. The final rule eliminates the requirement proposed at Sec.  
679.42(d)(2)(iv)(B) that NMFS disapprove an application for a second 
medical transfer unless a health professional attested to a reasonable 
likelihood of recovery of the applicant. This requirement is eliminated 
from the final rule because the Council motion adopting this action did 
not have that requirement. Further, this requirement would put an 
applicant's doctor or other health professional and the applicant in a 
difficult situation if the doctor could not attest that the applicant 
had a reasonable likelihood of recovery. Additionally it might be hard 
for a health professional to assess whether the applicant/patient has a 
reasonable likelihood of recovery if the patient is in the early stages 
of diagnosis and treatment of a disease or condition. NMFS notes that 
the Council's motion had other elements which prevented potential abuse 
of medical transfers such as a prohibition against a QS holder 
receiving a medical transfer more

[[Page 44797]]

than twice in five years and the requirement for proof of a qualifying 
medical condition from a health professional. These requirements were 
in the proposed rule and are retained in the final rule.
    5. The final rule clarifies the documentation that a QS holder must 
submit to prove the QS holder's minimum 20 percent ownership in the 
vessel from which a hired master will fish the QS. The QS holder who is 
an owner of a documented vessel must submit an Abstract of Title issued 
by the U.S. Coast Guard to show that the QS holder is an owner of the 
vessel and, if the Abstract of Title does not prove the required 
percentage interest, the QS holder must submit additional written 
documentation. The QS holder who is the owner of an undocumented vessel 
must submit a State of Alaska boat registration or a commercial vessel 
license that shows that the QS holder is an owner of the vessel. The 
State of Alaska issues an ``Alaska Boat Registration'' through its 
Department of Motor Vehicles and a ``Commercial Vessel License'' 
through its Commercial Fisheries Entry Commission. If either State 
document does not prove the required percentage ownership, the final 
rule clarifies that the QS holder must submit further written 
documentation to prove the required percentage ownership.
    This clarification was necessary because the proposed rule at Sec.  
679.42(i) and (j) required proof of ownership of a documented vessel 
``as supported by the U.S. Abstract of Title issued by the U.S. Coast 
Guard and any other documentation indicating percentage ownership'' and 
proof of ownership of an undocumented vessel ``as supported by a State 
of Alaska vessel registration and any other documentation indicating 
percentage ownership.'' The problem with this language is that it did 
not clearly state the role and purpose of ``other documentation.'' On 
one hand, read literally, it required the QS holder to submit the 
Abstract of Title and other documentation, even if the abstract or the 
State document sufficiently proved percent ownership. On the other 
hand, it could have been read to allow a QS holder to prove the 
required ownership interest through other documentation only, without 
submitting an Abstract of Title. The latter interpretation would have 
been the same as the prior regulation which merely required a QS holder 
to submit written documentation of his or her ownership interest.
    The Council concluded that the prior regulation the requirement 
simply for written documentation was inadequate. It was concerned that 
some QS holders were abusing the hired skipper provision through vessel 
ownership arrangements that were informal and unverifiable. The Council 
also was responding to NMFS staff reports that NMFS had difficulty 
verifying the required ownership under the prior regulation which 
simply required written documentation. The final rule addresses the 
Council's concerns by requiring that the QS holders submit specified 
formal documents that are issued by the government to prove that they 
are an owner of the vessel that will be used to harvest their IFQ. If 
these formal documents do not show percentage ownership, the final rule 
requires QS holders to supplement those formal documents with other 
written documentation.
    6. The final rule does not adopt the proposed requirement that a QS 
holder prove the minimum 20 percent vessel ownership for 12 months 
prior to the QS holder's use of a hired master. NMFS is seeking 
clarification from the Council on whether the Council wants also to 
exempt QS holders whose vessels need repairs from the 20 percent/12-
month requirement and, if so, the criteria for the exemption. For a 
full explanation, see Response to Comment 4.
    7. The final rule adds Sec.  679.42(g)(2) which directs the 
Regional Administrator to identify all halibut blocks in Areas 3B and 
4A that result in an allocation of more than 20,000 lb (9.1 mt) of 
halibut IFQ, based on the 2004 total allowable catch (TAC) for fixed 
gear halibut in those areas, and divide those halibut blocks into one 
block of 20,000 lb (9.1 mt) and the remainder unblocked, based on the 
2004 TAC. This action was analyzed in the RIR/IRFA and specifically 
adopted by the Council. The proposed rule inadvertently omitted the 
regulatory text for this action although its description and rationale 
were presented in the proposed rule, and NMFS gave notice that it was 
considering approving it (71 FR 64222 - 64223). The final rule adopts 
this action as recommended by the Council and described in the proposed 
rule.
    Because of this change, existing paragraph (g)(2) with the heading 
``Holding or to hold blocks of QS'' is renumbered as paragraph (g)(4).
    Proposed paragraph (g)(3) in this section, headed ``Transfer of QS 
blocks,'' remains paragraph (g)(3) in the final rule. However, the 
final rule clarifies paragraph (g)(3) to provide an exception to the 
requirement in paragraph (g)(1)(i) for those persons who have more than 
one block of QS and unblocked QS as a result of the Regional 
Administrator's action under paragraph (g)(2). The final rule also 
eliminates a specific effective date for this provision and relies 
instead on the overall effective date of the final rule (see DATES).
    8. The final rule does not approve the proposed change in the PRR 
for bled sablefish from 0.98 to 1.00. NMFS finds that this proposed 
change is not based on the best scientific information available, and 
would violate National Standard 2 in the Magnuson-Stevens Act, that 
requires conservation and management measures to be based upon the best 
scientific information available (16 U.S.C. 1851 (a)(2)). Therefore, 
the PRR for bled sablefish remains at 0.98. See responses to comments 
20, 21 and 22 below.

Comments and Responses

    NMFS received 12 letters that contained 22 comments on the proposed 
rule.
    Comment 1: One individual, who identified himself as a current IFQ 
holder, stated that he supported all the proposed changes as beneficial 
to the IFQ Program.
    Response: This support is noted.
    Comment 2: NMFS allows too many fish to be harvested. Fish species 
are going extinct.NMFS should cut all quotas by 50 percent this year 
and 10 percent each succeeding year.
    Response: This rule changes certain features of the IFQ Program and 
does not affect how many halibut or sablefish may be harvested in 
Federal waters off Alaska. NMFS disagrees with the commenter's 
perception that fish species off Alaska are going extinct. Halibut and 
groundfish are managed conservatively and sustainably with annual 
quotas based on the best scientific information available. The IPHC 
recommends annual catch limits for Pacific halibut, which are adopted 
in regulations that the United States Secretary of State approves under 
section 4 of the Halibut Act. NMFS annually publishes catch limits and 
other management measures that are recommended by the IPHC to sustain 
halibut stocks. For 2007, the annual management measures for halibut 
were published March 14, 2007 (72 FR 11792). NMFS sets the annual TAC 
for groundfish, including sablefish, in regulations which are adopted 
by the Secretary under the Magnuson-Stevens Act. NMFS annually 
publishes TAC specifications for groundfish, including sablefish, and 
the rationale for the TAC, in the Federal Register. The TACs for 
groundfish for 2007 and 2008 in the BSAI were published on March 2, 
2007 (72 FR 9451). The TACs for groundfish for 2007 and 2008 in the 
Gulf of Alaska

[[Page 44798]]

were published on March 5, 2007 (72 FR 9676).
    Comment 3: Two comments specifically supported the new provision at 
Sec.  679.42(d)(1) to allow medical transfers by QS holders.
    Response: The support is noted.
    Comment 4: Under proposed Sec.  649.42(i)(1), QS holders who want 
to use a hired master to harvest their IFQ must have owned at least a 
20 percent interest in the vessel from which the QS will be fished for 
at least 12 months prior to their using a hired master permit. The 
proposed regulation at Sec.  679.42(i)(6) exempted a QS holder from 
this requirement if the QS holder suffered ``the actual total loss or 
constructive total loss'' of a vessel owned by the QS holder. The final 
rule should define ``constructive total loss'' to include a vessel that 
is out of the fishery for 30 days or longer. Another comment said that 
a vessel owner should be exempt if his or her vessel would be out of 
the fishery for repairs for two to six months.
    Response: NMFS acknowledges that the term ``constructive total 
loss'' was not defined in the proposed rule and agrees that it should 
be defined in a final rule. The terms ``total loss'' and ``constructive 
total loss'' are most commonly used in insurance. ``Total loss'' means 
the complete destruction of an item of property. ``Constructive total 
loss'' means a loss to insured property that is not total, but is so 
great that repair would cost more than the value of the property. Some 
definitions of ``constructive total loss'' include that the item has 
lost its total usefulness to the insured person. If NMFS were going to 
adopt the 12-month vessel ownership requirement in the final rule, the 
only QS holders that it could exempt from the 20 percent/12-month 
requirement would be those IFQ permit holders who had suffered a total 
loss or constructive total loss of their vessels, in accordance with a 
standard definition of those terms.
    NMFS cannot adopt in this final rule a definition of ``constructive 
total loss'' that includes a vessel that is out of the IFQ fishery 
temporarily for repair. This definition of ``constructive total loss'' 
was not in the proposed rule. This definition is antithetical to the 
standard definition of ``constructive total loss,'' which is that the 
item is unable to be repaired for less than the value of the item. 
Thus, NMFS could not, consistent with the requirements in the 
Administrative Procedure Act, adopt in this final rule an exemption 
from the 12-month requirement for QS holders whose vessels are 
undergoing repair because the proposed rule did not give notice that 
NMFS might adopt that provision. A vessel repair exemption is not a 
logical outgrowth of the proposed rule, which exempted only QS holders 
who suffered a total loss or constructive total loss of their vessels.
    Comments on this subject, however, bring to light a consequence of 
the proposed rule, which NMFS concludes was unanalyzed, and probably 
unintended, by the Council. Currently, if a QS holder's vessel needs 
repairs, the QS holder can acquire a 20 percent ownership interest in 
another vessel and use a hired master on that vessel to harvest his or 
her IFQ. Under the proposed rule, if a QS holder's vessel suffers 
damages and is out of the fishery for repairs, the QS holder would not 
be able to hire a master to fish his or her QS until his vessel is 
repaired, or until 12 months have elapsed, unless the QS holder had a 
minimum 20 percent ownership interest in a second vessel for the 12 
months prior to wanting to use a hired master and the second vessel was 
available to fish in the IFQ fishery. NMFS is not willing to presume 
that many or most QS holders could maintain at least a 20 percent 
ownership interest in two or more vessels.
    For QS holders who may use hired masters (other than in Area 2C for 
halibut or Southeast Outside for sablefish), the proposed rule left 
them the option of personally fishing their IFQ. If an individual QS 
holder is personally fishing his or her IFQ, this can be done from any 
boat, even if the QS holder has no ownership interest in it. For QS 
holders that must use hired masters such as corporations or 
partnerships that were initial QS recipients, the proposed rule did not 
leave them that option because they must use a hired master.
    It is not clear whether the Council wanted to exempt QS holders 
whose vessels need repairs from the 12-month vessel ownership 
requirement, from the 20 percent ownership requirement or from the 
combined 20 percent/12-month vessel ownership requirement. In December 
2006 the Council passed a resolution asking NMFS to define 
``constructive loss.'' The Council then submitted a comment on the 
proposed rule. The Council's comment suggests that the Council wanted 
NMFS to define ``constructive loss'' to include a vessel that was out 
of the fishery for repairs. In that case, however, NMFS has 
insufficient guidance on what vessel repair situations to exempt. This 
uncertainty leads to the following questions: Would any repair of a 
vessel, or only certain types of repairs, trigger an exemption from the 
12-month ownership requirement? Would a QS holder who is scheduling a 
vessel upgrade or routine maintenance be exempt or only a QS holder 
whose vessel needs unanticipated repairs? Would the exemption be 
triggered by repairs over a certain dollar amount or by repairs that 
kept the vessel out of the fishery for a certain period of time? Would 
it matter whether the need for repairs occurred early or late in the 
IFQ season? For how long would the QS holder be exempt from the 12-
month requirement? And would the QS holder whose vessel needs repairs 
be exempt from the 12-month ownership requirement and the 20 percent 
ownership requirement? After receiving Council guidance on this issue, 
the Administrative Procedure Act would require that NMFS publish the 
criteria or conditions of the ``vessel repair'' exemption in a new 
proposed rule, before NMFS could adopt it in a final rule.
    Therefore, NMFS is not adopting the 12-month requirement in the 
final rule and is seeking clarification from the Council on whether it 
wants to exempt QS holders whose vessels need repair from the 20 
percent ownership requirement, the 12-month ownership requirement, or 
the combined 20 percent/12-month requirement and, if it does, the terms 
of the exemption.
    Comment 5: The only QS holders who have the right to use a hired 
skipper are QS holders who were initial recipients of QS for catcher 
vessels and who meet other requirements. Some of these ``old timers'' 
will not be able to afford to buy or build a new boat and then leave it 
tied to the dock for 12 months before it goes fishing.
    Response: The proposed regulation would not have required a QS 
holder to leave a boat tied to the dock before the vessel goes fishing, 
as it could have been used in non-IFQ fisheries. If NMFS had adopted 
this part of the proposed rule, NMFS would have had to determine 
whether to make this requirement effective immediately or whether to 
delay the effective date for 12 months. See Comment 9.
    As noted in response to Comment 4, NMFS has concluded that the 
proposed regulation affected whether these ``old timers'' could use 
hired masters to fish their IFQ when their vessels were out of the 
fishery temporarily for repairs. NMFS is seeking clarification from the 
Council on whether it wants to exempt from the 20 percent/12-month 
vessel ownership requirement only those QS holders who suffer a total 
loss or total constructive loss of their vessels or whether it also 
wants to exempt QS holders whose vessels are temporarily

[[Page 44799]]

out of the fishery for repairs and, if so, the terms of the exemption.
    Comment 6: The proposed requirement for a QS holder to own a 20 
percent interest in a vessel for 12 months prior to using a hired 
master will make entry into the halibut and longline fishery more 
difficult. Under the current system, it is easier for a person who owns 
a vessel, and does not own IFQ, to find IFQ permit holders to be 
partners.
    Response: The imposition of a 12-month vessel ownership requirement 
would still allow those seeking entry into the IFQ fishery to prove 
themselves by forming ownership agreements with IFQ permit holders, but 
they would have to be longer-term agreements, i.e., a year or longer. 
If the imposition of the 12-month ownership requirement causes QS 
holders who have been entering into short-term ownership agreements to 
sell their QS, more QS will be available for purchase by those seeking 
entry into an IFQ fishery.
    As noted in response to Comment 4, however, NMFS needs the Council 
to clarify whether it wishes to exempt QS holders whose vessels are 
temporarily out of the IFQ fishery for repairs from the 20 percent/12-
month ownership requirement and if so, the terms of the exemption.
    Comment 7: The problem of QS holders forming short-term vessel 
ownership agreements has never been quantified and is a personal issue 
only.
    Response: NMFS disagrees that the proposed 12-month vessel 
ownership rule was merely responding to ``personal issues.'' The 
Council was responding to genuine policy concerns. From the inception 
of the IFQ Program, the Council's goal has been to have an owner-
operated fleet in the IFQ fisheries. Based on the Council's 
recommendation, NMFS adopted the minimum 20 percent vessel ownership 
requirement in 1999 (May 10, 1999; 89 FR 24960). Before that, an IFQ 
permit holder wishing to use a hired master had to prove only ``an 
ownership interest'' and IFQ permit holders could acquire as little as 
0.1 percent ownership interest in a vessel expressly for the purpose of 
hiring a skipper (December 16, 1998; 63 FR 69256). The Council required 
a minimum 20 percent ownership interest to prevent that practice, which 
had circumvented the Council's goal of an owner-operated fleet in the 
IFQ fisheries. But the minimum 20-percent-ownership requirement still 
allowed an IFQ permit holder to ``own'' a 20 percent interest in a 
vessel for a short period of time, e.g., the duration of a two- or 
three-week fishing trip. Such short-term ownership agreements 
undermined the development of an owner-operated fishery. Therefore, in 
addition to a substantial percentage ownership, defined as 20 percent 
or more, the Council recommended an additional requirement of owning 
the vessel for a substantial period of time, defined as twelve months 
or longer.
    The proposed 12-month ownership requirement resulted from 
recommendations of Council committees established to assist the Council 
in its conservation and management duties under the Magnuson-Stevens 
Act. In October 2003 the IFQ Implementation and Cost Recovery Committee 
(Committee) recommended a number of changes in the IFQ Program. The 
Committee recommended that NMFS implement criteria to tighten 
compliance with the minimum 20 percent vessel ownership requirement 
that the Council adopted in 1999, including a one-year limitation on 
ownership changes. In December 2003, the Advisory Panel for the Council 
reviewed the Committee's recommendations and recommended that the 
Council analyze them. In December 2003, the Council approved the 
Committee's recommendations for analysis. In October 2004, the Council 
approved publication of the analysis for public review and comment. In 
December 2004, the Council approved tightening the 20 percent vessel 
ownership requirement by requiring specified documentation of ownership 
and by requiring that the QS holder have the requisite minimum 
ownership interest for twelve months prior to using the hired skipper 
exception. All meetings of the Council and its committees are open to 
the public.
    As noted in response to Comment 4, however, the proposed rule would 
have prevented all QS holders from entering into short-term ownership 
agreements, including those who do so because their vessels need 
repairs. NMFS is seeking clarification from the Council on whether the 
Council wishes to exempt from the 20 percent/12-month ownership 
requirement those QS holders whose vessels are temporarily out of the 
IFQ fishery due to repairs and, if so, the terms of the exemption.
    Comment 8: The proposed requirement that a QS holder own a 20 
percent interest in a vessel for twelve months prior to applying to use 
a hired master is unnecessary because the only QS holders who can hire 
masters are original recipients. Eventually, no original recipients 
will exist and all QS holders will have to be onboard the vessel when 
their IFQ is fished.
    Response: NMFS agrees that in the long run this problem will be 
resolved as original recipients pass from the fishery. However, a 
considerable amount of catcher vessel QS is still held by QS holders 
who may use hired masters and QS holders who must use hired masters. As 
of 2002, QS holders who may use hired masters held 42 percent of the 
halibut catcher vessel QS and 33 percent of sablefish catcher vessel 
QS. As of 2002, QS holders who must use hired masters held 25 percent 
of halibut catcher vessel QS and 30 percent of sablefish catcher vessel 
QS (see Table 3.1 of the FRFA). Because many QS holders are still using 
hired masters, the Council and NMFS can impose restrictions to prevent 
these QS holders from, in effect, leasing their QS. Hence, the 
Council's recommendation and the proposed rule that these original QS 
holders must have a substantial, long term interest in the vessel from 
which their QS is fished.
    As noted in response to Comment 4, however, the proposed rule would 
have prevented all QS holders from entering into short-term ownership 
agreements, including those who do so because their vessels need 
repairs. NMFS is seeking clarification from the Council on whether the 
Council wishes to exempt from the 20 percent/12 month ownership 
requirement those QS holders whose vessels are temporarily out of IFQ 
fishery due to repairs and, if so, the terms of the exemption.
    Comment 9: If NMFS adopts the proposed 12-month ownership provision 
in Sec.  679.42(i) and (j), the effective date of this provision should 
be 12 months after the regulation is adopted. This would provide lead 
time for compliance by QS holders before the regulation becomes law.
    Response: NMFS is not adopting the 12-month ownership requirement 
in this final rule. If NMFS adopts this requirement in a future rule, 
NMFS will consider this comment when it sets an effective date for the 
rule.
    Comment 10: The proposed 12-month ownership requirement in Sec.  
649.42(i) and Sec.  679.42 (j)(1) imposes an unfair burden on QS 
holders that are required to hire a master to harvest their QS. 
Maintaining and insuring a vessel for 12 months prior to using the 
vessel is an inequitable requirement. QS holders who may, or who must, 
use a hired master could be required to maintain their ownership for a 
period of 12 months without such an economic burden. An alternative 
suggested in the comment is to accept only one change annually in a 
vessel's documentation.
    Response: NMFS does not see this comment as a reason not to adopt 
the

[[Page 44800]]

12-month ownership requirement. If by ``economic burden,'' the 
commenter means that the rule may result in QS holders making a more 
substantial investment in the vessels from which their QS is fished, 
NMFS sees that as consistent with the Council's reasons for adopting 
the 12-month ownership requirement. See Response to Comment 7. The 
alternative suggested by the commenter only one change in vessel 
ownership a year does not require that the QS holder maintain an 
ownership interest for 12 months. This alternative still allows a QS 
holder to use a hired master on a vessel in which the QS holder had an 
ownership interest only for the duration of a fishing trip.
    However, the minimum 12-month requirement would affect all QS 
holders, including those QS holders who resort to short-term vessel 
ownership agreements because their regular vessels need repairs. NMFS 
is seeking clarification from the Council on whether it wishes to 
exempt QS holders whose vessels are temporarily out of the IFQ fishery 
for repairs from the 20 percent/12-month ownership requirement and, if 
it does, the terms of the exemption.
    Comment 11: The proposed regulation is good because it tightens up 
the requirement for a QS holder to use a hired skipper. The current 
regulation is too vague.
    Response: NMFS agrees that the previous regulation for 
documentation of a QS holders's 20 percent ownership interest in the 
vessel was vague in that it required an individual to submit only non-
specified ``written documentation.'' The final rule requires specific 
documentation an Abstract of Title for documented vessels and a State 
of Alaska boat registration or commercial vessel license for 
undocumented vessels. See the discussion of change number 5 under 
``Changes in the Final Rule.''
    The proposed rule also sought to restrict the use of hired masters 
by requiring a QS holder to own the required interest in a vessel for 
at least 12 months before receiving a hired master permit. As noted, 
NMFS is seeking clarification from the Council on whether it wants to 
exempt QS holders whose vessels need repairs from the minimum 12-month 
vessel ownership requirement and, if so, the terms of the exemption.
    Comment 12: The final rule should define what documentation is 
necessary to prove a ``constructive total loss'' for the exemption from 
the 12-month ownership vessel requirement in Sec.  679.42(i)(6).
    Response: This final rule does not specify what documentation is 
necessary to prove a ``constructive total loss'' because it does not 
adopt any provision that contains the term ``constructive total loss.'' 
As previously noted, NMFS is seeking clarification from the Council on 
whether it wants to exempt from the 12-month ownership requirement only 
those QS holders who have suffered a total loss or total constructive 
loss of their vessel or whether it also wants to exempt those QS 
holders whose vessels are out of the IFQ fishery temporarily for 
repair. If in the future the Council proposes a rule that requires a QS 
holder to prove a ``constructive total loss'' of a vessel, the Council 
will evaluate whether to specify the documentation required to prove 
the loss.
    Comment 13: The proposed regulation specifying the documentation 
that a QS holder must submit to prove 20 percent ownership interest in 
a vessel is unnecessary because an owner already has to produce 
documentation to prove 20 percent ownership of a vessel.
    Response: NMFS disagrees. The prior regulation required only that 
NMFS determine 20 percent ownership of a vessel ``on the basis of 
written documentation'' (50 CFR 679.42(i)(1)). The Council was 
concerned that, under the prior regulation, some vessel owners were 
abusing the hired skipper provision through the use of informal, 
unverifiable transactions. The Council also was responding to NMFS 
staff reports that, under the prior regulation, it had been difficult 
to verify the minimum 20 percent vessel ownership. The final rule meets 
the Council's concerns by requiring the QS holder to submit a formal 
document of ownership issued by a government agency. An owner of a 
documented vessel must submit an Abstract of Title issued by the U.S. 
Coast Guard that shows the QS holder is an owner of the vessel. An 
owner of an undocumented vessel must submit a State of Alaska boat 
registration or commercial vessel license that shows the QS holder is 
an owner of the vessel. If these documents prove the required 
percentage ownership, the QS holder need not submit any other 
documentation. If these formal documents do not prove percentage 
ownership, the QS holder must prove the required percentage ownership 
through additional written documentation.
    Comment 14: Vessel operators who harvest sablefish in the BSAI 
should not be exempt from the Vessel Monitoring System (VMS) based on 
vessel size. If an exemption is desired, it should be based on the 
value of the sablefish that the vessel harvests in a year.
    Response: This rule does not exempt any vessel operator who 
harvests sablefish in the BSAI from the requirement to have a VMS. The 
requirement applies to all vessels. The preamble to the proposed rule 
invited comment on whether small vessels should be exempt from the VMS 
requirement. No comments were received in favor of exempting vessels 
based on size. This comment merely stated that an exemption based on 
the amount of a vessel's harvest would be better than an exemption 
based on an overall length of a vessel. For reasons described in the 
preamble to the proposed rule, NMFS concludes that no exemption is 
warranted.
    Comment 15: Our vessel is already required to have a VMS, because 
we fish in critical habitat in the Aleutian Islands and in area 4B. 
Using the VMS for clearance in the BSAI has turned out to have some 
actual time and fuel saving benefits.
    Response: NMFS notes this information.
    Comment 16: The number of QS blocks that a person can hold should 
not be increased from two blocks to three blocks. The proposed 
regulation allows further fleet consolidation, will result in less 
blocks available for purchase, will likely increase the cost of QS and 
will make entry into the halibut fishery more difficult.
    Response: When the IFQ Program was started, all initially issued QS 
that resulted in less than 20,000 lb of IFQ was ``blocked,'' that is, 
issued as an inseparable unit. Also, no person was allowed to own more 
than two QS blocks per species in any regulatory area, or one QS block, 
if unblocked QS also was held by that individual for that area. The 
block approach was meant to prevent excessive consolidation in the IFQ 
fisheries, and maintain the diversity of the IFQ longline fleet, 
without compromising the flexibility and economic efficiency of the 
program as a whole. As noted in the FRFA for this action, the 
proportion of QS that is unblocked QS ranges from 29 percent in Area 2C 
to 65 percent in Area 3A. NMFS is aware of the concerns raised in the 
comment; they were discussed by the Council and discussed in the FRFA 
for this action. The FRFA notes that an increase from two to three 
blocks would lead to consolidation of QS, and would be likely to 
increase the value of blocked QS, but may consequently decrease the 
value of unblocked QS. The FRFA notes that the action might reduce the 
availability of entry-level opportunities in the fishery. The

[[Page 44801]]

Council weighed these considerations against the potential benefits of 
easing restrictions on the transfer of large blocks, and on helping 
small vessel owners constrained by ownership of two small blocks to 
make more economically viable trips.
    Comment 17: The sweep up limit for QS blocks in regulatory Areas 2C 
and 3A should not be increased to 5,000 pounds, particularly in light 
of the proposal to increase the QS blocks a person can hold from two to 
three blocks. The proposed sweep up regulation will make entry into the 
halibut fishery more difficult. If the halibut sweep up limit is 
increased to 5,000 pounds, at current quota prices, an ``entry level'' 
block of halibut would cost approximately $100,000.
    Response: The block provisions of the IFQ Program created many 
blocks that were quite small. The halibut IFQ regulations allow a 
``sweep-up'' of small blocks that would be economically unfishable 
(i.e., the value of the harvest would not exceed the costs of the 
fishing trip). This allowed small QS blocks to be permanently 
consolidated as long as the resulting block did not exceed a specified 
limit. This limit has been 3,000 lb for halibut, based on 1996 TACs. 
This final rule implements the Council's recommendation that, for Areas 
2C and 3A, the sweep-up limit be increased to 5,000 lb, based on 1996 
QS units.
    The FRFA for this rule recognizes that the block program was 
implemented in part to provide entry level opportunity in the IFQ 
fisheries, and that the increase in the ``sweep-up'' limit would reduce 
the numbers of small blocks available in the fishery. In this event, 
blocks containing more QS units than were previously allowed likely 
will cost more to purchase. Note that not all blocks would be 
consolidated to the maximum size, and the amount of unblocked QS would 
not be affected. The FRFA also indicates that the 3,000-lb sweep-up 
limit imposed costs on some fishing operations by constraining their 
growth and efficiency. The FRFA indicates large declines in the numbers 
of operations in areas 2C and 3A with QS holdings less than 3,000 lb, 
suggesting that holdings in this size range are not economically 
viable. Moreover, the block system creates significant transaction 
costs for operations with two blocks. An operation with two blocks must 
sell one of its existing blocks before buying a new block. The FRFA 
notes that the complexity involved in this dual transaction may provide 
a substantial obstacle to growth for active fishery participants. This 
final rule allows some QS holders who currently are at the threshold 
limit and the block limit to incrementally increase their QS holding 
without first selling one of their blocks. The Council balanced these 
considerations before choosing the 5,000 lb limit as its preferred 
alternative.
    Comment 18: The ``fish down'' exception for category B QS in Area 
2C and Southeast Outside should not be repealed. The current regulation 
prevents category B QS in Area 2C and Southeast Outside from being 
fished on vessels less than 60 feet length overall (LOA). The proposed 
regulation will have a severe adverse financial effect on IFQ permit 
holders who purchased vessels larger than 60 feet (18.3 m) LOA because 
the proposed rule will make QS less available for vessels that size.
    Response: This final rule makes the category B restrictions for 
Area 2C halibut QS and Southeast Outside sablefish QS consistent with 
restrictions in all other halibut and sablefish management areas off of 
Alaska. The FRFA noted that this action would increase the 
marketability and potentially the value of unblocked and large blocks 
of category B QS. In this event, existing holders of category B QS in 
these areas would see an increase in the value of their holdings. The 
FRFA further noted that this might reduce the value of category C 
halibut and sablefish QS, relatively, as the supply of QS was expanded 
for operators of vessels less than or equal to 60 ft (18.3 m) LOA. 
While the FRFA points to potential increased costs for large vessels, 
the costs are not expected to be prohibitive. Large vessel operations 
may still enter the market to purchase category B shares, and may be in 
a better financial position to do so. Small vessel owners would be 
unlikely to drive category B prices above category C and D QS prices 
because that would increase their cost of usable QS.
    Comment 19: The exception to the ``fish down'' regulation for 
category B QS in Area 2C and Southeast Outside should not be repealed. 
The proposed rule allows category B QS that currently must be fished on 
vessels greater than 60 feet (18.3 m) LOA to be fished on smaller 
vessels. The proposed regulation will decrease scientific data 
available on the halibut and sablefish fisheries since vessels greater 
than 60 feet must have observers onboard but vessels smaller than 60 
feet do not have to have observers onboard.
    Response: This rule likely will result in some QS that currently is 
fished from vessels greater than 60 ft (18.3 m) LOA being fished from 
vessels less than or equal to 60 ft (18.3 m) LOA and, therefore, likely 
will result in somewhat less observer data. NMFS concludes, however, 
that this is not a reason to disapprove this action for several 
reasons. First, this rule makes the category B QS restrictions for Area 
2C halibut QS and Southeast Outside sablefish QS consistent with the 
category B QS restrictions in the rest of the State. Second, vessels 
over 60 ft (18.3 m) LOA that harvest IFQ sablefish and halibut 
generally must have observer coverage for 30 percent of their fishing 
days. Therefore, these vessels do not currently generate observer data 
every time they are fishing. These vessels still will harvest some IFQ 
halibut and sablefish and will supply observer data from 30 percent of 
their fishing days. The extent of the decrease in observer data is 
uncertain but is expected to be marginal. Finally, if the Council and 
NMFS perceive a harmful decline in observer data, they can propose 
rules to change the requirements of observer coverage.
    Comment 20: The Product Recovery Rate (PRR) for bled sablefish 
should be changed from 0.98 to 1.00, based on the study, ``Product 
Recovery Rates for Bled Sablefish,'' by NOAA Fisheries and Alaska 
Longline Fishermen's Association (ALFA) members in Sitka. The study 
supports the conclusion that the PRR for bled sablefish of 0.98 does 
not reflect the difference between the weight of bled sablefish and 
unbled sablefish.
    Response: NMFS disagrees based on its determination that the study 
does not support the proposed change in the PRR for bled sablefish from 
0.98 to 1.00. NMFS concludes that the proposed change is not based upon 
the best scientific information available and that adoption of the 
proposed change would violate National Standard 2 of the Magnuson-
Stevens Act. Therefore, NMFS disapproves the proposed change of the PRR 
for bled sablefish from 0.98 to 1.00. This means that the PRR for bled 
sablefish remains at 0.98, which is the current PRR in Table 3 to Part 
679.
    In the preamble to the proposed rule, NMFS noted ``serious concerns 
that the proposal may not be based on sufficient scientific evidence'' 
(71 FR 64222). NMFS specifically requested public comment on the 
appropriate PRR for this product type. Public comment did not 
demonstrate to NMFS that the proposed rule was based on the best 
scientific information available. Therefore, NMFS cannot approve the 
proposed change in the sablefish PRR.
    A brief description of the study cited in the comment follows (the 
full study is in Appendix 2 of the FRFA). In 2002 and 2003, NMFS staff 
and ALFA

[[Page 44802]]

members conducted field experiments to determine the change in 
individual sablefish weight due to blood loss from different types of 
harvest methods. Fish weights were compared before and after bleeding. 
Sablefish lost 2 percent of their weight when bled on deck without 
flowing seawater. Sablefish lost 1.6 percent of their weight when bled 
and immersed in flowing seawater. Sablefish lost 2 percent of their 
weight when carefully brought aboard and bled. Sablefish lost 1.7 
percent of their weight when they were gaffed aboard and bled without 
flowing seawater. Sablefish lost 1 percent of their weight when gaffed 
aboard, and not intentionally bled, because of blood loss at the gaff 
wound. The study concluded the following statement:
    The Product Recovery Rate currently applied by fishery managers 
to estimate catch weight for bled sablefish (2.0 %) slightly 
overestimates ``blood loss'' for fish gaffed aboard (1.7 %). The PRR 
applied by fishery managers for unbled sablefish (0.0 %) 
underestimates ``blood loss'' for fish gaffed aboard (1.0 %). 
Estimating the actual change in weight due to blood loss for a 
commercial fishing trip is difficult because it requires accounting 
for storage methods and handling practices.
    The question is whether this study supports the proposed change in 
the PRR for bled sablefish from 0.98 to 1.00. The study does not 
support that change. The study concludes that the 2.0 percent PRR for 
bled sablefish ``slightly overestimates'' blood loss for bled 
sablefish. The blood loss for bled sablefish was 1.7 percent. The 
slight overestimation is 0.03 percent. All the percentages in the PRR 
table are whole percentages (Table 3 to Part 679). Therefore, under 
conventional rounding rules, 2 percent is the closest whole percentage 
to the actual blood loss of 1.7 percent and is the proper PRR for bled 
sablefish.
    A change in the PRR for bled sablefish to 1.00 would imply that 
NMFS concluded that sablefish, when bled, lose no weight. The PRR for 
all other groundfish species, when bled, is 0.98 (Table 3 to Part 679). 
The conclusion that a species, when bled, loses no weight is 
counterintuitive and the study does not support that conclusion.
    The commenters are correct that the study results do question the 
accuracy of the PRR of 1.00 for unbled sablefish. The PRR for unbled 
sablefish is 1.00, which means NMFS adds nothing to the weight of 
unbled sablefish when debiting the IFQ account of the IFQ permit holder 
that harvests sablefish that are categorized as unbled. The study 
stated that gaffing was the normal method for bringing sablefish aboard 
during longline fishing. Gaffed sablefish are treated as unbled. The 
study found a blood loss of 1 percent for gaffed sablefish because 
gaffing itself even with no intentional bleeding causes blood loss. 
Hence, the study suggests that the PRR for bled sablefish is 
inaccurate, relative to the PRR for unbled sablefish, because fishermen 
who catch and bleed their sablefish are charged 2 percent more than 
fishermen who catch and gaff their sablefish. The study does not 
suggest, however, that even this ``relative inaccuracy'' is 2 percent, 
because it concludes that bled sablefish weigh 1 percent less, not 2 
percent less, than gaffed sablefish. Thus, even if ``relative 
inaccuracy'' were a valid basis to change the PRR for bled sablefish, 
it would support a change in the PRR for bled sablefish only from 0.98 
to 0.99, an alternative that was rejected by the Council and not 
proposed.
    If the current PRRs do not accurately reflect the difference 
between bled and unbled sablefish, it may be because the PRR for unbled 
sablefish is inaccurate, not because the PRR for bled sablefish is 
inaccurate. The problem may be that gaffed sablefish are treated as 
unbled but they are, in fact, bled, albeit unintentionally. To solve 
this problem, the Council could consider recommending a PRR for unbled 
sablefish of 0.99 or recommending a new category for gaffed sablefish 
with a PRR of 0.99. This problem cannot be solved by changing the PRR 
for bled sablefish from 0.98 to 1.00, because the conclusion that a 
sablefish loses no weight when bled is not based on the best available 
scientific data.
    Comment 21: The PRR for bled sablefish should be changed from 0.98 
to 1.00 because the study, ``Product Recovery Rates for Bled 
Sablefish,'' concluded that different storage methods and handling 
practices could affect blood loss.
    Response: NMFS agrees that the study concluded that different 
storage methods and handling practices could affect blood loss. The 
study concluded, ``Measuring an accurate PRR requires further studies 
of the effects of storage methods (ice or refrigerated seawater) and 
handling practices (gaffing, hook removal devices, and soak time), 
which would be time-consuming to complete.'' The only practice that the 
study analyzed and stated was normal was gaffing. The study concluded 
that gaffing led to a 1 percent weight loss. Gaffed fish are treated as 
unbled. As noted in response to Comment 20, this conclusion about 
gaffed fish does not support changing the PRR for bled sablefish from 
0.98 to 1.00. The study did not state that any other storage or 
handling method was standard. The study did not analyze the effect of 
any other storage or handling methods. Therefore, the caveat in the 
study about different storage and handling practices does not support 
changing the PRR for bled sablefish from 0.98 to 1.00.
    Comment 22: A PRR of 0.98 for bled sablefish discourages bleeding 
sablefish, which is bad because bleeding improves the quality of 
product.
    Response: The FRFA noted that in the fall of 2005, Council staff 
interviewed representatives of the major sablefish processors and the 
unanimous response was that they paid fishermen no price premium for 
bled versus unbled sablefish. If quality is measured by the market by 
what processors are willing to pay bleeding does not increase quality.
    A more basic problem exists with this argument. Any PRR less than 
1.00 for any fish product ``discourages'' that product because a 
fisherman's IFQ account is debited more for that product than for a 
whole fish product. For example, the PRR for sablefish headed and 
gutted without tail is 0.50 (Table 3 to Part 679). This means that if 
an IFQ permit holder reports a sablefish headed and gutted without a 
tail that weighs 10 pounds, the permit holder will be counted as having 
caught a sablefish that weighed 20 pounds. Although this arguably 
discourages heading and gutting and removing the tail of the sablefish, 
the discouragement is compensated to the extent that buyers want that 
sablefish product enough to pay fishermen for the time, labor, and 
expense to produce it.
    The purpose of the PRR is not to encourage or discourage particular 
processing activities. The purpose of the PRR is to accurately measure 
the biomass of fish that is removed from the ocean. NMFS concludes that 
the current PRR for bled sablefish accurately measures the biomass of 
sablefish that is removed from the ocean and is based on the best 
scientific information available. Because NMFS concludes that the 
proposed 1.00 PRR for bled sablefish is not based on the best 
scientific information available, the proposed change is not approved.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendment 
67 is necessary for the conservation and management of the sablefish 
fishery and that it is consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act and other applicable laws.
    The FRFA prepared for each action assesses potential impacts on 
small entities for purposes of the Regulatory

[[Page 44803]]

Flexibility Act (RFA). NMFS reviewed multiple alternatives for each 
individual action, including a ``no action'' alternative and a 
preferred alternative, in separate FRFAs. Each FRFA describes the 
potential adverse impacts on small entities, attributable to the 
proposed alternatives for each action.
    The objective of each action in this final rule and its legal basis 
is explained in the preamble of the proposed rule (71 FR 64218) and in 
this final rule. Changes in the final rule from the proposed rule are 
described under ``Changes in Final Rule'' above.
    NMFS defines all halibut and sablefish vessels as small businesses, 
for the purpose of this analysis. In 2003, 1,338 unique vessels made 
IFQ halibut landings, and 409 unique vessels made sablefish landings.
    The number of small entities operating as fishing vessels in the 
IFQ fisheries may be deduced from certain restrictions placed on those 
vessels. The IFQ Program restricts the amount of annual IFQ that may be 
landed from any individual vessel. A vessel may be used to land up to 
0.5 percent of all halibut IFQ TAC, or up to 1 percent of all sablefish 
TAC. In 2003, 295,050 lb (133.8 mt) of halibut constituted 0.5 percent 
of all the halibut IFQ TAC and 348,635 lb (158.1 mt) of sablefish 
constituted 1 percent of all the sablefish IFQ TAC. NMFS annually 
publishes standard prices for halibut and sablefish that are estimates 
of the ex-vessel prices received by fishermen for their harvests. NMFS 
uses these prices for calculating IFQ holder cost recovery fee 
liabilities. In 2003 price data suggested that the prevailing prices 
were approximately $2.92 per pound for halibut and $2.36 per pound for 
sablefish (68 FR 71036; December 22, 2003). In combination, the harvest 
limits and prices imply maximum ex-vessel revenues of about $1.68 
million for halibut and sablefish together. Although some halibut and 
sablefish IFQ operations participate in other revenue generating 
activities, the halibut and sablefish IFQ fisheries probably represent 
the largest single source of annual gross receipts.
    Based on available data, and more general vessel economic activity 
information of vessels in these IFQ fisheries, no vessel subject to 
these restrictions is believed to have been used to land more than $4.0 
million in combined gross receipts in 2003. Therefore, all halibut and 
sablefish vessels have been assumed to be ``small entities,'' for 
purposes of the FRFA. However, this simplifying assumption likely 
overestimates the true number of small entities, since it does not take 
account of vessel affiliations. No reliable data exist on vessel 
affiliation. The conclusions of the FRFA for each action are summarized 
separately below.

Emergency Medical Transfers

    Since the initial implementation of the halibut and sablefish IFQ 
Program in 1995, individuals have submitted numerous petitions to NMFS 
and the Council requesting the temporary transfer of IFQs for medical 
reasons. These individuals sought medical transfers due to the 
inability of IFQ holders to physically be onboard the vessel as IFQs 
were fished. NMFS was previously unable to implement a medical transfer 
program recommended by the Council due to legal and administrative 
constraints. The approach proposed in this action would resolve the 
issues arising from previous approaches.
    This action could directly affect 3,349 halibut QS holders and 874 
sablefish QS holders. NMFS currently does not have sufficient ownership 
and affiliation information to determine the precise number of small 
entities in the IFQ Program or the number that would be impacted by the 
proposed action. Approximately 12 QS holders contact NMFS or the 
Council each year for information about medical transfers in the IFQ 
Program. However, it is not possible to estimate how many QS holders 
did not contact NMFS or the Council, but would have requested a medical 
transfer if it were available. This analysis assumes that all halibut 
and sablefish QS operations are small for RFA purposes.
    Alternative 1 was the no action or status quo alternative and would 
not have any associated adverse economic impacts on directly regulated 
small entities. However, the status quo would not have advanced the 
objectives of this action to relieve a burden on certain types of 
fishing operations. Alternative 2 would allow medical transfers, but 
would require an applicant to document his/her medical emergency with 
NMFS. The transfer would also require an affidavit from a licensed 
medical doctor, an advanced nurse practitioner, or a primary community 
health aide, that describes the medical condition affecting the 
applicant and attests to the inability of the applicant to participate 
in the IFQ fishery(ies) for which she or he holds IFQ permit(s), during 
the IFQ season. In the case of a family member's medical emergency, the 
affidavit would describe the necessity for the IFQ permit holder to 
tend to an immediate family member who suffers from the medical 
condition. An emergency transfer would not be granted if the individual 
had been granted an emergency medical transfer in any two of the 
previous five years.
    Options were considered which would have been less specific about 
the types of medical professionals from whom affidavits would have been 
accepted, and whic