Fisheries of the Exclusive Economic Zone Off Alaska; Community Development Quota Program, 39892-39909 [2010-16936]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 133 (Tuesday, July 13, 2010)]
[Proposed Rules]
[Pages 39892-39909]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-16936]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 679 and 680

[Docket No. 070718367-7374-01]
RIN 0648-AV33


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to amend regulations that govern fisheries 
managed under the Western Alaska Community Development Quota (CDQ) 
Program. These revisions are needed to comply with certain changes made 
to the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) in 2006. Proposed changes include revising 
regulations associated with recordkeeping, vessel licensing, catch 
retention requirements, and fisheries observer requirements to ensure 
that they are no more restrictive than the regulations in effect for 
comparable non-CDQ fisheries managed under individual fishing quotas or 
cooperative allocations. In addition, NMFS proposes to remove CDQ 
Program regulations that now are inconsistent with the Magnuson-Stevens 
Act, including regulations associated with the CDQ allocation process, 
transfer of groundfish CDQ and halibut prohibited species quota, and 
the oversight of CDQ groups' expenditures.

DATES: Comments must be received no later than August 12, 2010.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-
AV33, by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal Web site at 
http:[sol][sol]www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Fax: (907) 586-7557.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    All comments received are a part of the public record. No comments 
will be posted to http:[sol][sol]www.regulations.gov for public viewing 
until after the comment period has closed. Comments will generally be 
posted without change. All Personal Identifying Information (e.g., 
name, address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.
    Written comments regarding the burden-hour estimates or other 
aspects

[[Page 39893]]

of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS (see ADDRESSES), e-mailed to 
David_Rostker@omb.eop.gov, or faxed to 202-395-7285.
    Copies of the Environmental Assessment (EA), Regulatory Impact 
Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA) 
prepared for this action may be obtained from 
http:[sol][sol]www.regulations.gov or from the Alaska Region Web site 
at http:[sol][sol]alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Obren Davis, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish and crab 
fisheries of the Bering Sea and Aleutian Islands management area (BSAI) 
under the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Management Area (groundfish FMP) and the Fishery 
Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs 
(crab FMP). The North Pacific Fishery Management Council (Council) 
prepared the FMPs pursuant to the Magnuson-Stevens Act (16 U.S.C. 1801, 
et seq.). The International Pacific Halibut Commission and NMFS manage 
fishing for Pacific halibut through regulations established under the 
authority of the Northern Pacific Halibut Act of 1982. Regulations 
governing the groundfish, crab, and halibut fisheries in the BSAI and 
implementing the FMPs appear at 50 CFR parts 300, 600, 679, and 680.

Overview of the CDQ Program

    The CDQ Program is an economic development program associated with 
Federally managed fisheries in the BSAI. The purpose of the program is 
to provide western Alaska communities the opportunity to participate 
and invest in BSAI fisheries, to support economic development in 
western Alaska, to alleviate poverty and provide economic and social 
benefits for residents of western Alaska, and to achieve sustainable 
and diversified local economies in western Alaska. The large-scale 
commercial fisheries of the BSAI developed in the eastern Bering Sea 
without significant participation from rural western Alaska 
communities. These fisheries are capital-intensive and require large 
investments in vessels, infrastructure, processing capacity, and 
specialized gear. The CDQ Program was developed to redistribute some of 
the BSAI fisheries' economic benefits to adjacent communities by 
allocating a portion of commercially important BSAI species including 
pollock, crab, halibut, and various groundfish, to such communities. 
The percentage of each annual BSAI catch limit allocated to the CDQ 
Program varies by both species and management area. Regulations 
establishing the CDQ Program were first implemented in 1992. The CDQ 
Program was incorporated into the Magnuson-Stevens Act in 1996 through 
the Sustainable Fisheries Act (Pub. L. 104-297).
    NMFS allocates a portion of the annual catch limits for a variety 
of commercially valuable marine species in the Bering Sea and Aleutian 
Islands area (BSAI) to the CDQ Program. These apportionments are in 
turn allocated among six different non-profit managing organizations 
representing different affiliations of communities (CDQ groups). There 
are 65 communities participating in the program. These communities, and 
their managing organizations, are identified in the Magnuson-Stevens 
Act at Section 305(i)(1)(D). CDQ groups use the revenue derived from 
the harvest of their fisheries allocations as a basis both for funding 
economic development activities and for providing employment 
opportunities. The successful harvest of CDQ Program allocations is 
integral to achieving the goals of the program. The National Marine 
Fisheries Service (NMFS), the State of Alaska (State), and the Western 
Alaska Community Development Association administer the CDQ Program.
    The fisheries management regulations governing the CDQ fisheries 
are integrated into the regulations governing the concurrent fisheries 
for groundfish, halibut, and crab. These are often termed the ``non-
CDQ'' fisheries. CDQ fisheries management regulations have been 
developed incrementally since the creation of the CDQ Program. These 
regulations were developed to ensure that catch of all species 
allocated to the CDQ Program should be limited to the amount of the 
allocations, with no catch from CDQ fisheries accruing against non-CDQ 
allocations. They also were developed to ensure that NMFS and the CDQ 
groups had timely, accurate catch information during the course of CDQ 
fishing activities. Applicable CDQ fisheries regulations may subject 
CDQ fishery participants to additional costs, additional catch 
reporting requirements, or be designed to control some aspect of CDQ 
fishing activities. This is typical of the development of regulations 
that govern catch share programs in the Alaska groundfish, halibut, and 
crab fisheries. Federal catch share programs convey harvesting 
privileges (licenses, fishing quota, exclusive access) for specific 
marine species to individuals, cooperatives, communities, or other 
eligible entities. In turn, the beneficiaries of such privileges are 
subject to higher levels of catch accounting, catch monitoring, and 
fisheries enforcement than they may have been subject to before 
receiving these privileges.
    The original fishery management objectives for the groundfish, 
halibut, and crab CDQ fisheries include, in general, limiting the catch 
of all species to the amount allocated to the program and not allowing 
catch made under the program to accrue against non-CDQ portions of 
total allowable catch (TAC) limits or prohibited species catch (PSC) 
limits. These objectives also included managing target and non-target 
species allocations made to the CDQ groups with the same level of 
strict quota accountability, and holding each CDQ group responsible not 
to exceed any of its groundfish CDQ allocations.

2006 and 2007 Statutory Changes Affecting the CDQ Program

    Section 305(i)(1) of the Magnuson-Stevens Act includes requirements 
to establish the CDQ Program and allocate a percentage of the total 
allowable catch (TAC) of each Bering Sea (BS) and Aleutian Island (AI) 
directed fishery to the program. Corresponding Federal and State 
regulations implement various administrative and fisheries management 
aspects of the CDQ Program. The fisheries management regulations 
governing the groundfish, halibut, and crab CDQ fisheries are 
integrated into the regulations governing the concurrent, non-CDQ 
fisheries for such species.
    Section 305(i)(1) of the Magnuson-Stevens Act was amended on July 
11, 2006, by the Coast Guard and Maritime Transportation Act (Coast 
Guard Act) (Pub. L. 109-241). The Coast Guard Act revised all of the 
existing language in section 305(i)(1) with new language. The new 
requirements in section 305(i)(1) address 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 program and among 
the CDQ groups; management of the CDQ fisheries with respect to non-CDQ 
fisheries; eligible communities; eligibility criteria; 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 features of program 
administration and oversight by the State and NMFS. These amendments 
were intended to address a variety of oversight and management

[[Page 39894]]

issues associated with the CDQ Program, including conferring a higher 
level of self-governance to CDQ groups.
    On January 12, 2007, the Magnuson-Stevens Fishery Conservation and 
Management Reauthorization Act of 2006 (Pub. L. 109-479) further 
amended section 305(i)(1) of the Magnuson-Stevens Act specifically by 
amending sections 305(i)(1)(B)(ii) and (C). The allocations of 
groundfish (other than pollock and sablefish) to the CDQ Program and 
among the CDQ groups were increased by this Reauthorization Act. 
Furthermore, it amended restrictions associated with the transfer of 
quota among the CDQ groups.
    Most of the new CDQ Program requirements in the Magnuson-Stevens 
Act must be implemented through revisions to Federal regulations at 50 
CFR parts 679 and 680. This action proposes regulatory amendments 
related to the regulation of harvest in select CDQ fisheries, as 
described below. This action also proposes to modify or remove other 
regulations related to the CDQ allocation and transfer process, as well 
as to remove regulations associated with the oversight of expenditures 
and investments by CDQ groups. These proposed regulatory amendments are 
described later in the preamble to this proposed rule. Other regulatory 
amendments to the CDQ Program required by the Coast Guard Act have been 
or are being addressed in other, separate regulatory actions.
    NMFS prepared an EA/RIR/IRFA (see ADDRESSES) as part of an 
evaluation to identify which regulations in 50 CFR parts 679 and 680 
would need to be changed to comply with the Magnuson-Stevens Act 
requirements associated with the management of CDQ fisheries. NMFS 
presented this analysis to the Council in June 2007. The Council 
recommended implementation of an alternative that would amend CDQ 
fisheries management regulations to align them with comparable non-CDQ 
fisheries regulations.
    The regulation of CDQ harvest is directly addressed in the 
Magnuson-Stevens Act at section 305(i)(1)(B)(iv). This paragraph 
states:

    The harvest of allocations under the 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 non-target species.

    Accordingly, this proposed action focuses on those BSAI fisheries 
with individual fishing quotas (IFQs) or those BSAI fisheries managed 
with cooperatives. The BSAI fisheries that include allocations of IFQs 
are the Pacific halibut, fixed gear sablefish, and crab fisheries. 
Recipients of IFQ receive a specific amount of a particular IFQ species 
to catch each year. The BSAI fisheries that include components managed 
with cooperatives include the BS pollock fishery, as well as the 
allocations of Atka mackerel, Aleutian Islands Pacific ocean perch, 
yellowfin sole, rock sole, flathead sole, and Pacific cod made to the 
non-American Fisheries Act (AFA) trawl catcher/processor sector 
(otherwise known as the Amendment 80 sector). Cooperatives allow 
multiple quota recipients to aggregate their annual quota amounts, 
coordinate their collective fishing operations, and benefit from the 
resulting efficiencies. Each of the BSAI fisheries managed with IFQs or 
cooperatives also include allocations to the CDQ Program.
    NMFS interprets the statement ``in a manner no more restrictive 
than for other participants in the applicable sector'' from the 
Magnuson-Stevens Act to mean that the fishery management regulations 
associated with regulating the harvest of CDQ allocations should be no 
more costly, complex, or burdensome than those that apply to comparable 
non-CDQ sectors managed under IFQs or cooperative allocations. This 
applies to most of the major BSAI fisheries, although one noteworthy 
exception is the Pacific cod fishery conducted by hook-and-line 
catcher/processors. Hook-and-line catcher/processors are allocated 48.7 
percent of the annual BSAI Pacific cod TAC, but are not rationalized as 
are most other major fishery sectors that fish for Pacific cod. 
Rationalization typically refers to programs that limit access to 
certain fisheries to balance the interests of competing participants, 
while providing a means to address overarching management and 
conservation issues. There are no IFQ or cooperative allocations 
associated with any fixed gear component of the Pacific cod fishery. 
Therefore, no changes are required by section 305(i)(1)(B)(iv) to 
regulations governing the harvest of Pacific cod by hook-and-line 
catcher/processors, although this is one of the major groundfish CDQ 
fisheries.
    Furthermore, NMFS interprets the phrase ``including with respect to 
the harvest of non-target species'' in section 305(i)(1)(B)(iv) to 
apply to species that may legally be retained and sold while directed 
fishing for halibut, groundfish, or crab CDQ. In the BSAI groundfish 
fisheries, any given amount of catch may be composed of target species, 
some bycatch or incidental catch species, and some prohibited species. 
BSAI fisheries management regulations at Sec.  679.2 define 
``harvesting or to harvest'' as the catch and retention of any fish. 
The Magnuson-Stevens Act does not define ``harvesting.''
    Prohibited species may not be retained if caught while groundfish 
fishing in the BSAI, with the exception of those prohibited species 
that may be retained for donation to a food bank or are required to be 
retained for proper accounting. These types of prohibited species 
include salmon, as well as halibut delivered by catcher vessels using 
trawl gear to shoreside processors. Crab and herring are not part of 
the prohibited species donation program. Therefore, NMFS interprets the 
Magnuson-Stevens Act's requirements at section 305(i)(1)(B)(iv) as not 
applying to regulations governing the catch of prohibited species in 
the CDQ Program.
    NMFS considered the need to propose changes to the regulations that 
govern the regulation of crab CDQ harvest during its assessment of 
current regulations governing the CDQ fisheries. The crab CDQ fisheries 
are managed under the regulations developed for the Crab 
Rationalization (CR) Program, which was implemented in 2005 (70 FR 
10174, March 2, 2005). The crab FMP defers many aspects of BSAI crab 
management to the State, including most aspects of the regulation of 
harvest of crab CDQ. The crab CDQ fishery occurs in conjunction with 
the crab IFQ fishery under comparable Federal and State regulations. 
NMFS has not identified any crab CDQ regulations that are more 
restrictive than those in effect for the crab IFQ fishery. Therefore, 
this action does not propose changes to Federal regulations governing 
the crab CDQ fisheries.
    Amendment 80 to the groundfish FMP (Amendment 80) allocated non-
pollock groundfish fisheries among fishing sectors, and included 
provisions that allow the formation of fisheries cooperatives (72 FR 
52668, September 14, 2007). NMFS already has integrated the applicable 
portion of the groundfish CDQ fisheries into the catch monitoring and 
enforcement requirements that were implemented for non-AFA trawl 
catcher/processors in conjunction with the implementation of Amendment 
80. ``Non-AFA trawl catcher/processors'' refers to a class of vessels 
that did not qualify to fish for pollock under the authority of the 
AFA. These are typically referred to as Amendment 80 vessels. Such 
vessels typically have been involved in fisheries for species such as 
Atka mackerel, Pacific ocean perch, flathead sole, Pacific cod, rock 
sole, and yellowfin sole (Amendment 80 species). Therefore, this action 
does not

[[Page 39895]]

propose any changes to Federal regulations governing the Amendment 80 
species allocated to the CDQ Program or to groundfish CDQ fishing for 
Amendment 80 species.
    This proposed rule would revise regulations in 50 CFR part 679 to 
be consistent with Magnuson-Stevens Act requirements for the regulation 
of harvest of the CDQ fisheries, as described previously. Regulations 
governing the harvest of halibut and sablefish IFQ, and the harvest of 
pollock under the AFA, are different from regulations governing the 
harvest of other non-CDQ groundfish. Therefore, the Magnuson-Stevens 
Act now requires NMFS to manage the CDQ fisheries for halibut, 
sablefish, and pollock differently than the more restrictive CDQ 
regulations that currently are in effect. Thus, NMFS proposes to 
separately identify CDQ fisheries and separate the fisheries management 
regulations associated with the halibut, sablefish, pollock, and 
groundfish CDQ fisheries. This, in turn, would allow NMFS to amend 
regulations for the halibut, sablefish, and pollock CDQ fisheries to 
align them with those regulations in place for the equivalent non-CDQ 
fisheries.

Proposed Regulatory Amendments To Implement Regulation of Harvest 
Requirements

    The following is an overview of the proposed revisions to CDQ 
fisheries management regulations. Detailed explanations of, and 
rationales for, these proposed regulatory amendments are provided in 
following sections.
    1. Add definitions of ``sablefish CDQ fishing'' and ``pollock CDQ 
fishing'' to provide a basis for establishing which fishery-specific 
regulations a vessel operator must comply with when participating in a 
particular CDQ fishery. The terms ``halibut CDQ fishing'' and 
``groundfish CDQ fishing'' already are defined in regulation, but would 
be revised under this proposed rule. These proposed revisions are 
detailed in the Definitions section below.
    2. Exclude sablefish CDQ from the definition of ``license 
limitation groundfish,'' which would, in turn, exempt vessel operators 
from the requirement to have a License Limitation Program (LLP) 
groundfish license while fishing for sablefish CDQ under the CDQ 
Program. This would be consistent with the exemption allowed for 
vessels fishing for sablefish IFQ, which occurs under the IFQ Program. 
This proposed revision is detailed in the Definitions section below.
    3. Remove a requirement that CDQ groups annually submit a request 
to NMFS to designate specific vessels as eligible to harvest groundfish 
CDQ on their behalf, as well as remove a prohibition against harvesting 
groundfish CDQ unless a vessel is designated as eligible to do so. 
These proposed revisions are detailed in the Eligible Vessels section 
below.
    4. Revise CDQ catch monitoring and accounting requirements for the 
halibut, sablefish, and pollock CDQ fisheries to incorporate other 
applicable changes proposed by this action. This includes eliminating 
requirements that groundfish bycatch be retained for full catch 
accounting of all species caught by catcher vessels targeting halibut, 
sablefish, or pollock CDQ. These proposed revisions are detailed in the 
Catch Accounting and Monitoring section below.
    5. Revise regulations to align observer coverage requirements for 
the sablefish CDQ, halibut CDQ, and pollock CDQ fisheries with 
comparable non-CDQ fisheries. These proposed revisions are detailed in 
the Observer Coverage Requirements section below.
    In addition, there is a remove/add table at the end of the 
regulatory text portion of this proposed rule that portrays minor 
changes to wording or changes to cross-references. NMFS chose to 
propose some types of changes in the remove/add table because it is an 
efficient way to illustrate repetitive or simple changes. For example, 
the proposal to change the term ``CDQ group number'' to ``CDQ number'' 
affects multiple paragraphs of 50 CFR part 679.5, since this term is 
found in numerous locations in this section. The remove/add table 
clearly identifies the section and paragraph that is affected by each 
proposed change. The preamble refers the reader to the remove/add table 
whenever a proposed regulatory change is found there. All other 
regulatory changes are set forth in the proposed regulatory text 
following this preamble.
    Revisions described below were specifically recommended by the 
Council in 2007 and are proposed under section 303(c) of the Magnuson-
Stevens Act.

Definitions

    This proposed rule would add or revise a number of definitions in 
Sec.  679.2 associated with the CDQ Program. These proposed changes are 
based upon the Magnuson-Stevens Act requirement that CDQ harvests must 
be managed no more restrictively than BSAI fisheries managed with 
individual quotas or fishing cooperatives. Adding or refining 
definitions for different types of CDQ fishing would help distinguish 
which regulations apply to a given CDQ fishing activity, and support 
the Council's recommendations for this action. Subsequent sections of 
the preamble discuss proposed changes to (1) eligible vessel 
requirements, (2) catch monitoring and accounting, and (3) observer 
coverage requirements, as well as explain the rationale for these 
proposed changes to definitions.
    Definitions of pollock CDQ fishing and sablefish CDQ fishing would 
be added to Sec.  679.2. This would enable NMFS and vessel operators in 
applicable fisheries to distinguish which particular CDQ fishery a 
vessel is participating in and the corresponding CDQ-specific 
regulations with which a vessel operator must comply. Groundfish CDQ 
fishing currently is defined. Pollock and sablefish are encompassed 
within the existing definition of groundfish CDQ fishing, along with 
numerous other groundfish species. This proposed rule would separate 
sablefish CDQ and pollock CDQ from the definition of groundfish CDQ 
fishing. This rule also proposes to apply different catch accounting 
and observer requirements to the sablefish, pollock, and groundfish CDQ 
fisheries; the new definitions proposed here primarily are to support 
such changes.
    The proposed definition of ``pollock CDQ fishing'' would be modeled 
on a definition in Sec.  679.2 used to define ``AI directed pollock 
fishery,'' which links a particular fishing activity to a distinct 
program allocation. This action proposes to define pollock CDQ fishing 
in a similar manner. Thus, a vessel would be considered directed 
fishing for pollock CDQ if it reported that its pollock catch accrued 
towards a pollock CDQ allocation. In addition, a new prohibition would 
be added at Sec.  679.7(d) to prohibit a vessel operator from retaining 
more than the maximum retainable amount of pollock unless the vessel 
operator was pollock CDQ fishing. This would assist in clarifying that 
a vessel not otherwise eligible to target pollock (in other words, an 
Amendment 80 vessel) may not catch unlimited amounts of pollock while 
it is nominally targeting for other types of groundfish. The annual 
Bering Sea pollock catch limit already is fully apportioned between 
other industry sectors.
    The definition of ``halibut CDQ fishing'' would be revised to 
remove references to conditions associated with retention of 
combinations of halibut CDQ, halibut IFQ, and other groundfish species. 
Instead of defining whether a vessel operator is halibut CDQ fishing 
based on the proportions of halibut and groundfish species retained 
onboard, NMFS proposes to define halibut CDQ

[[Page 39896]]

fishing based on whether a vessel is retaining halibut CDQ and whether 
it meets the definition of either sablefish CDQ or groundfish CDQ 
fishing.
    This proposed rule would revise the definition of ``groundfish CDQ 
fishing'' to remove pollock CDQ fishing and sablefish CDQ fishing from 
the definition. Those two types of fishing would each be defined 
separately. Additionally, the term ``eligible vessel'' would be removed 
from this definition, as CDQ eligible vessel requirements are proposed 
to be removed by this action. The revised definition of groundfish CDQ 
fishing primarily would apply to vessels using trawl gear fishing for 
groundfish species other than pollock and to vessels using fixed gear 
fishing for groundfish species other than sablefish.
    This proposed rule would revise the definition of ``license 
limitation groundfish'' to exclude sablefish CDQ harvested with fixed 
gear. Such a revision would mean that vessels fishing for sablefish CDQ 
would no longer be required to possess an LLP groundfish license when 
they are directed fishing for sablefish CDQ. This is equivalent to the 
exception made for vessels that are sablefish IFQ fishing. Sablefish 
managed under the IFQ Program was exempted from being considered a 
license limitation groundfish because this species already was managed 
under a limited access program prior to the development of the LLP.

Eligible Vessels

    Each CDQ group must designate which vessels may fish for the 
group's groundfish CDQ or halibut CDQ by annually requesting that NMFS 
assign specific vessels with CDQ eligibility status. This requirement 
applies to each vessel of any length that will be groundfish CDQ 
fishing, and to each vessel equal to or greater than 60 ft (18.3 m) 
length overall (LOA) that will be halibut CDQ fishing. This requirement 
originally was implemented to provide specific information about which 
vessels would be participating in groundfish CDQ fisheries. NMFS 
required CDQ groups to submit detailed operational information about 
such vessels as part of the implementation of the multispecies 
groundfish CDQ Program in 1998. This was intended to ensure that the 
CDQ groups and their associated vessels were complying with increased 
observer coverage and catch reporting requirements. The eligible vessel 
designation also provided a means for the NOAA Office for Law 
Enforcement and U.S. Coast Guard enforcement personnel to verify that a 
vessel was authorized to participate in the CDQ fisheries.
    As the groundfish CDQ fishery matured and stabilized between 1998 
and 2003, the information submitted as part of the vessel eligibility 
process became unnecessary for management and enforcement. The 
information collected on the eligible vessels forms is available from 
other sources, such as observer data or NMFS fisheries permits data. In 
2005, NMFS amended regulations governing the eligible vessel 
requirements to decrease the amount of information collected about each 
vessel and to remove the State from the administrative review process 
associated with vessel eligibility (70 FR 15010, March 24, 2005). 
Currently, vessel operators are required to maintain a copy of NMFS's 
eligibility approval onboard a vessel at all times while harvesting, 
transporting, or offloading groundfish CDQ. Permits are required to 
participate in the halibut IFQ, sablefish IFQ, and AFA pollock 
fisheries, but there are no requirements equivalent to the former CDQ 
eligible vessel requirements.
    NMFS proposes to eliminate the CDQ eligible vessel requirements 
entirely, rather than just for the primary fisheries affected by this 
action. This includes the general requirement that a CDQ group must 
submit a request to NMFS for approval of a vessel as eligible to fish 
for CDQ allocations at Sec.  679.32(c) and the specific eligibility 
information required to be submitted at Sec.  679.5(n)(2). The U.S. 
Coast Guard, which is the enforcement agency most likely to board 
vessels at sea to verify a vessel's fishing status, has informed NMFS 
that it does not currently use information about a vessel's CDQ 
eligibility status for enforcement purposes. Instead, U.S. Coast Guard 
personnel use fisheries logbooks, required by NMFS, to determine if a 
vessel is CDQ fishing or is fishing under another management program.
    Removal of the vessel eligibility requirements would eliminate the 
need for the prohibition at Sec.  679.7(d)(4). This paragraph prohibits 
a vessel from harvesting groundfish CDQ on behalf of a CDQ group unless 
the vessel is listed as an eligible vessel for a CDQ group. The word 
``eligible'' also would be removed from the term ``eligible vessel'' in 
prohibitions at Sec.  679.7(d)(6) through (10), as is denoted in the 
remove/add table at the end of this proposed rule. Furthermore, Sec.  
679.7(f)(3)(ii), which prohibits the retention of sablefish unless 
certain permit conditions are met, would be revised to delete a cross-
reference to Sec.  679.32(c).

Catch Monitoring and Accounting

    The proposed changes to CDQ catch monitoring and accounting 
regulations are based on the Council's recommendation to amend such 
regulations in order to comport with Magnuson-Stevens Act requirements 
for the CDQ Program. This recommendation is based on NMFS's comparison 
of applicable regulations governing the harvest of similar CDQ species 
and non-CDQ species. This includes an assessment of whether CDQ 
regulations, as compared to non-CDQ regulations, may be considered more 
restrictive in the context of relevant Magnuson-Stevens Act 
requirements, particularly to the degree that they either impose 
additional financial costs or operational requirements on CDQ fishery 
participants. Those CDQ-related regulations that were deemed more 
restrictive when compared to regulations governing IFQ or cooperative 
fisheries are proposed to be amended, per the Council's recommendation 
for this action. Such changes are intended to remove CDQ catch 
monitoring or reporting requirements beyond those in effect for non-CDQ 
fisheries for halibut and sablefish IFQ, as well as pollock harvested 
under the AFA. This should, in turn, decrease the operational 
restrictions, reporting complexities, and costs associated with 
additional observer coverage for participants in the sablefish, 
halibut, and pollock CDQ fisheries.
    The CDQ Program's retention and catch reporting requirements, in 
conjunction with data from fisheries observers, allows NMFS to monitor 
the catch of the various CDQ species and prohibited species quota (PSQ) 
species categories on a timely, ongoing basis throughout the year. The 
original multispecies CDQ Program catch accounting design as 
implemented in 1998 stipulated that all groundfish CDQ and PSQ 
harvested by vessels participating in the groundfish CDQ fisheries must 
be accounted for in the allocations made to CDQ groups.
    The CDQ catch accounting system was developed in the late 1990's 
and designed so that none of the groundfish or PSQ catch (except 
herring) made in the groundfish CDQ fisheries accrued to the non-CDQ 
TACs or PSC limits. Furthermore, groundfish CDQ accounting requirements 
were extended to the halibut CDQ fishery. Halibut CDQ vessels equal to 
or greater than 60 ft (18.3 m) LOA are required to comply with all 
groundfish CDQ and PSQ catch accounting requirements, including 
retention of all groundfish CDQ by

[[Page 39897]]

catcher vessels. In contrast, bycatch or incidentally caught groundfish 
in the non-CDQ fisheries managed with IFQs or cooperatives accrue 
against an annual TAC limit, seasonal apportionments, and sector 
allocations (if applicable) for that species and not against 
allocations to the IFQ holders or cooperative. Furthermore, the 
retention of non-target catch generally is not required.
    Such comprehensive retention and accounting requirements are not 
required in the fixed gear sablefish IFQ, halibut IFQ, AFA pollock, or 
Amendment 80 cooperative fisheries. These fisheries do not have 
requirements that all incidentally caught groundfish species be 
retained and accounted for against allocations of these species made to 
quota holders or cooperatives. One exception is that participants in 
the halibut and sablefish IFQ fisheries must retain and deliver all 
catch of Pacific cod and rockfish taken when IFQ halibut or IFQ 
sablefish are onboard (unless the Pacific cod and rockfish fisheries 
are closed to directed fishing). Another exception is that all catch of 
Amendment 80 species in the Amendment 80 cooperative fisheries accrues 
towards a cooperative's allocations, regardless of whether such catch 
is retained or not. With respect to the IFQ fisheries requirement to 
retain and deliver Pacific cod and rockfish, NMFS is not proposing to 
apply these retention and reporting requirements to the halibut and 
sablefish CDQ fisheries primarily because doing so would extend NMFS's 
Federal groundfish permit requirements to a relatively small number of 
halibut CDQ fishermen who are not currently required to retain 
groundfish. These fishermen deliver their catch to small halibut 
processing facilities that do not process groundfish. The Council 
concurred in NMFS's recommendation on this issue.
    NMFS proposes to revise CDQ catch monitoring requirements for the 
fixed gear sablefish, halibut, and pollock CDQ fisheries at Sec.  
679.32 and other applicable sections of 50 CFR part 679 to align 
regulations with the retention and reporting requirements in place for 
IFQ fisheries or fisheries managed with cooperatives. These proposed 
amendments also are related to the changes in observer coverage 
requirements described under the next section titled ``Observer 
Coverage Requirements.'' The specific changes proposed to CDQ catch 
monitoring requirements follow.
    Paragraph Sec.  679.32(a) would be revised to identify the specific 
fisheries that paragraph (a) applies to: The CDQ fisheries for fixed 
gear sablefish, pollock, and other groundfish species. The halibut CDQ 
fishery no longer would be subject to groundfish retention for purposes 
of CDQ catch accounting, so this action proposes to remove the 
groundfish retention and catch monitoring requirements for the halibut 
CDQ fishery from Sec.  679.32. Additionally, this proposed rule would 
add to paragraph (a) a cross-reference to the regulations governing 
halibut CDQ catch accounting at Sec.  679.42(c).
    Paragraph Sec.  679.32(b) would be revised to state that the 
halibut caught by vessels that are sablefish CDQ fishing with fixed 
gear may be exempted from accrual against the CDQ groups' halibut PSQ 
if such an exemption is granted for vessels fishing for sablefish IFQ 
during the annual groundfish harvest specifications process. This 
exemption process already exists for the sablefish IFQ fishery. This 
exemption is proposed for vessels sablefish CDQ fishing to comply with 
section 305(i)(1)(B)(iv) of the Magnuson-Stevens Act. In addition, the 
proposed rule would update cross-references in paragraph (b) associated 
with prohibitions in Sec.  679.7(d) and with halibut PSC limits in 
Sec.  679.21(e).
    This proposed rule also would revise the catch accounting 
requirements in Sec.  679.32(c) to distinguish between the different 
catch monitoring requirements for vessels participating in three CDQ 
fisheries categories: fixed gear sablefish, pollock, and other 
groundfish. These categories would be in proposed paragraphs (c)(1), 
(c)(2), and (c)(3), respectively. These revisions include (1) 
describing the other general regulatory requirements with which 
participants in these fisheries must comply, (2) identifying the data 
sources used for CDQ catch accounting, and (3) specifying the 
operational requirements in place for different vessel categories.
    Existing catch monitoring requirements for the groundfish CDQ 
fisheries other than fixed gear sablefish CDQ and pollock CDQ would be 
retained, but reorganized in Sec.  679.32(c)(3). These proposed changes 
combine elements of existing regulations at Sec.  679.32(c) through (e) 
that are associated with groundfish CDQ catch monitoring and reporting 
requirements, including the provision for CDQ groups and their 
affiliated vessels to use an alternative fishing plan to document how 
they will obtain groundfish catch data by means other than NMFS's 
standard data sources. This action also proposes to move an element 
associated with alternative fishing plans to revised Sec.  679.32(c)(3) 
from Sec.  679.50(c)(4)(ii). The particular element is associated with 
limitations on an observer's duty hours, but NMFS determined that it is 
more suitable to include that particular criterion with the balance of 
other, existing requirements for alternative fishing plans.
    This proposed rule would add a requirement in revised Sec.  
679.32(c)(3) to require that operators of Amendment 80 catcher/
processors using trawl gear to harvest groundfish CDQ comply with catch 
monitoring requirements in Sec.  679.93(c). The monitoring requirements 
in Sec.  679.93(c) were implemented as part of Amendment 80, as 
previously described. Operators of non-AFA trawl catcher/processors 
that are fishing in the BSAI must now adhere to the same catch 
monitoring standards, regardless of whether they are participating in 
CDQ, cooperative, or limited access fisheries.
    Other proposed changes to Sec.  679.32(c) include adding references 
in paragraphs (c)(2)(i)(B) through (F) to applicable observer coverage 
requirements at Sec.  679.50(c)(4)(iii). In association with these 
changes, NMFS proposes to remove most occurrences of the qualifier 
``level 2'' from the term ``level 2 observer.'' This would make 
references to observer types more general, while the proposed addition 
of references to observer requirements at Sec.  679.50(c)(4)(iii) would 
clarify the type of observer(s) required for each groundfish CDQ vessel 
category.
    Paragraph Sec.  679.32(d) would be revised to describe catch 
monitoring requirements by fishery category for shoreside processors 
and stationary floating processors. These changes support the primary 
purpose of this proposed action by removing regulatory requirements for 
the halibut, fixed gear sablefish, and pollock CDQ fisheries that are 
more restrictive than regulations in place for comparable non-CDQ 
fisheries. This paragraph would contain information about general 
requirements and specific requirements associated with deliveries of 
pollock CDQ and with deliveries of groundfish CDQ. Proposed new 
paragraph Sec.  679.32(d)(1) would refer managers of seafood processors 
to other sections of 50 CFR part 679 associated with non-CDQ pollock 
delivery requirements. Proposed new paragraph Sec.  679.32(d)(2) 
addresses the requirements for groundfish CDQ deliveries. This 
paragraph would retain the existing processor requirements in Sec.  
679.32(d). Furthermore, Sec.  679.32(d)(2) is proposed to be revised to 
incorporate a cross-reference to observer coverage requirements at 
Sec.  679.50(d)(5)(iii) and to remove three occurrences of the 
qualifier ``level 2.''
    This rule proposes to remove paragraph Sec.  679.32(e), except for 
paragraph (e)(3), as noted below. Paragraph (e) outlines the 
requirements

[[Page 39898]]

associated with groundfish CDQ recordkeeping and reporting 
requirements, including the data sources that will be used to determine 
CDQ and PSQ catch amounts. This paragraph also describes the data used 
to complete CDQ catch reports (submitted by CDQ groups) and CDQ 
delivery reports (submitted by shoreside processors taking deliveries 
of groundfish CDQ). These requirements are obsolete because NMFS no 
longer requires CDQ fisheries participants to submit these reports. The 
requirement to submit them was removed in the final rule implementing 
Amendment 80 (72 FR 52668, September 14, 2007). However, the 
corresponding regulatory change to remove references to these reports 
in Sec.  679.32 was inadvertently excluded in the rulemaking prepared 
to implement Amendment 80.
    CDQ reporting requirements have been incorporated into generally 
applicable reporting requirements described in Sec.  679.5. The 
information that once was collected through the CDQ delivery report and 
the CDQ catch report is now available through observer data, weekly 
production reports, and the Interagency Electronic Reporting System 
used to monitor various Alaska commercial fisheries. Catch reporting 
mechanisms for Federal fisheries in Alaska have undergone significant 
changes since the original groundfish CDQ fisheries catch reporting 
requirements were implemented in 1998. NMFS no longer needs separate 
reports from the CDQ groups acknowledging the groundfish catch that 
will accrue against their allocations. NMFS has enhanced CDQ groups' 
ability to access their groundfish CDQ and PSQ balances directly from 
the NMFS catch accounting system. This allows the groups to continue to 
monitor the status of their CDQ account balances on a timely basis.
    Paragraph (e)(3) of Sec.  679.32 is proposed to be moved to revised 
Sec.  679.32(c)(3)(ii)(G) to address the use of alternative methods of 
CDQ catch accounting. This would allow catcher/processors to continue 
to use ``alternative fishing plans.'' In common practice, these plans 
allow a catcher/processor using longline gear to carry a single 
fisheries observer, rather than the two observers specified in 
regulation for this vessel category. Such plans typically contain 
performance standards that limit a vessel's fishing effort to the 
number of sets that can be sampled by a single observer. Vessel 
operators typically use alternative fishing plans to conduct CDQ 
fishing operations just prior to, and at the end of, the non-CDQ 
Pacific cod seasons. Once a non-CDQ cod season opens, catcher/processor 
vessels using these plans may switch to non-CDQ cod fishing, which has 
lower observer coverage levels than required of catcher/processors 
operating in the Pacific cod CDQ fishery. Alternative fishing plans 
allow vessel operators to avoid the costs associated with carrying a 
second observer during non-CDQ fishing operations or returning to port 
to disembark a second observer.
    NMFS also is proposing to remove Sec.  679.32(f). This paragraph 
describes the groundfish CDQ catch retention and monitoring 
requirements that are applicable to participants in the halibut CDQ 
fishery. It also includes observer coverage requirements for the 
halibut CDQ fishery. The halibut IFQ fishery is not subject to 
comparable requirements; thus, this proposed rule would remove these 
requirements in order to ensure that the halibut CDQ fishery is not 
managed more restrictively than the halibut IFQ fishery, per the 
Magnuson-Stevens Act. The halibut CDQ fishery would continue to be 
subject to the general halibut IFQ landing and reporting requirements 
in Sec.  679.5(l).

Observer Coverage Requirements

    This proposed rule would revise observer coverage requirements for 
the CDQ fisheries affected by this action. Existing CDQ observer 
coverage requirements were developed to support the comprehensive CDQ 
catch retention and reporting requirements developed for the groundfish 
CDQ fisheries (including the sablefish CDQ and pollock CDQ fisheries). 
The observer coverage requirements for vessels fishing for groundfish 
CDQ or vessels greater than or equal to 60 ft (18.3 m) LOA that are 
halibut CDQ fishing are different than those required in comparable 
non-CDQ fisheries. This action would align observer coverage 
requirements for the halibut CDQ, sablefish CDQ, and pollock CDQ 
fisheries by amending regulations in Sec.  679.50(c) and (d). This is 
necessary to ensure that these CDQ fisheries are not subject to 
additional observer coverage requirements than those that are in place 
for participants in the halibut and sablefish IFQ fisheries, as well as 
the non-CDQ pollock fishery. If implemented, such changes would 
decrease the operational restrictions, reporting complexities, and 
costs associated with additional observer coverage for participants in 
the sablefish, halibut, and pollock CDQ fisheries.
    Section 679.50(c)(4) would be revised to separate groundfish CDQ 
observer requirements into three distinct fisheries categories 
(sablefish, pollock, and groundfish). Each category would describe the 
applicable observer requirements by vessel type. Observer coverage 
requirements for vessels participating in the halibut CDQ fishery would 
be removed.
    Observer coverage requirements for vessels sablefish CDQ fishing 
are proposed to be revised to match those in place for the sablefish 
IFQ fishery. A proposed, new paragraph (c)(4)(i) of Sec.  679.50 would 
include a cross-reference to existing sablefish IFQ coverage 
requirements in Sec.  679.50(c)(1) and (2). Those requirements are 
based on vessel length, gear type, the fishery category in which a 
vessel is operating, and the amount of time spent fishing for sablefish 
during a calendar quarter for those vessels in the 30 percent coverage 
category. For calculating the days fished per quarter, vessels would 
combine days fishing sablefish IFQ with days fishing sablefish CDQ.
    Similarly, observer coverage requirements for the pollock CDQ 
fishery would be aligned with those in effect for the AFA pollock 
fishery by applying the non-CDQ pollock fishery's requirements to the 
pollock CDQ fishery. Existing observer requirements for both the CDQ 
and AFA pollock fisheries are almost identical, with the exception of 
observer coverage levels on trawl catcher vessels. Current regulations 
require 100 percent observer coverage on catcher vessels fishing for 
pollock CDQ. This action would revise regulations to base CDQ observer 
requirements for trawl catcher vessels on vessel length, as is required 
in the AFA pollock fishery.
    In April 2009, the Council adopted Amendment 91 to the groundfish 
FMP to reduce Chinook salmon bycatch in the BS pollock fishery. 
Amendment 91 would establish caps on the amount of Chinook salmon that 
may be caught annually in the pollock fishery. If attained, directed 
fishing for pollock would be closed. In addition, Amendment 91 would 
allow industry participants to develop private-sector bycatch reduction 
incentive plans to assist in forestalling pollock fishery closures. The 
Council also recommended a suite of salmon bycatch monitoring 
requirements to improve estimates of Chinook salmon bycatch in the 
pollock fisheries. One element of these requirements would require all 
trawl catcher vessels directed fishing for pollock to carry an 
observer, regardless of vessel length. This would mean that trawl 
catcher vessels fishing for AFA pollock (or CDQ pollock) would have to 
carry at least one observer while directed fishing, which is the same 
requirement now borne by trawl catcher

[[Page 39899]]

vessels fishing for CDQ pollock. The Secretary of Commerce approved 
Amendment 91 to the groundfish FMP in May 2010. NMFS anticipates that 
regulations implementing the Chinook bycatch reduction provisions of 
Amendment 91 will be in effect in 2011.
    This proposed rule also would eliminate observer requirements for 
vessels equal to or greater than 60 ft (18.3 m) LOA that are halibut 
CDQ fishing. Vessels that are halibut IFQ fishing are not required to 
carry observers. Therefore, paragraph (c)(4) of Sec.  679.50 would be 
revised to remove references to observer requirements for vessels that 
are halibut CDQ fishing. Vessels that are greater than 60 ft (18.3 m) 
LOA that participate in the halibut CDQ fishery would no longer be 
required to carry an observer at any time.
    NMFS is not proposing to change existing observer requirements for 
the groundfish CDQ fisheries that were not affected by Magnuson-Stevens 
Act requirements for the regulation of CDQ harvest. The proposed 
revisions to Sec.  679.50(c)(4) would reorganize the paragraph by 
fishery category, but would retain existing observer requirements for 
the groundfish CDQ fisheries other than sablefish and pollock. Many of 
the remaining groundfish CDQ fisheries, such as flatfish and Atka 
mackerel caught with trawl gear, are now subject to the same observer 
and catch monitoring requirements that are required for the non-CDQ 
flatfish and Atka mackerel fisheries. This is due to the implementation 
of Amendment 80, which allocated BSAI non-pollock groundfish resources 
among fishing sectors and authorized the formation of harvesting 
cooperatives in the non-AFA trawl catcher/processor sector. That action 
applied identical monitoring and enforcement provisions to the non-CDQ 
and CDQ trawl fishing activities in this sector, as described earlier 
in this preamble.
    In addition, this proposed rule would revise Sec.  679.50(d)(5) to 
modify observer coverage requirements for shoreside processors. As with 
the proposed revision to vessel observer requirements described above, 
this paragraph would be separated into three fishery categories: fixed 
gear sablefish CDQ, pollock CDQ, and groundfish CDQ. Observer coverage 
requirements for the sablefish and pollock CDQ fisheries would be 
aligned with requirements in place for comparable non-CDQ fisheries. 
This proposed rule would retain the current requirement that each 
shoreside processor or stationary floating processor taking deliveries 
of groundfish CDQ (other than pollock, or sablefish caught with fixed 
gear) have a least one observer present at all times while groundfish 
CDQ is being received or processed.
    NMFS also proposes to revise Sec.  679.50(c)(2)(iii) to incorporate 
sablefish CDQ into this paragraph. Currently, this paragraph only 
encompasses the sablefish IFQ fishery. However, sablefish IFQ and 
sablefish CDQ are often fished concurrently because it is operationally 
efficient for vessel operators to combine fishing for IFQ and CDQ 
sablefish on a single trip. As discussed previously, this rule proposes 
to include retained sablefish IFQ in the definition of sablefish CDQ. 
Integrating sablefish CDQ into the description of the sablefish fishery 
category in this paragraph would, for purposes of observer coverage 
requirements, allow vessel operators to participate in the sablefish 
IFQ and CDQ fisheries without having to meet separate observer 
requirements for each fishery.

Other Revisions for Consistency With the Magnuson-Stevens Act

    In addition to the fisheries management regulatory amendments 
necessary to implement section 305(i)(1)(B)(iv), NMFS also proposes 
revising or removing other regulations in 50 CFR part 679 that are no 
longer consistent with section 305(i)(1) of the Magnuson-Stevens Act. 
These inconsistencies were created as a result of the previously 
described amendments to the Magnuson-Stevens Act made through the Coast 
Guard Act and the Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006. NMFS also proposes updating and clarifying 
regulations and cross-references to support the proposed, primary 
regulatory amendments made by this action.

Purpose of the CDQ Program

    The statement of the purpose of the CDQ Program at Sec.  679.1(e) 
would be revised to remove inconsistencies with the purpose of the CDQ 
Program specified in section 305(i)(1)(A) of the Magnuson-Stevens Act. 
Rather than including the statement of purpose from the Magnuson-
Stevens Act in 50 CFR part 679, the text of Sec.  679.1(e) is 
generalized to be consistent with the format and content of the other 
paragraphs in this section and to direct the reader to the purpose 
specified in the Magnuson-Stevens Act. Additionally, the other 
paragraphs of Sec.  679.1 reference those subparts of 50 CFR part 679 
that contain the regulations governing a particular fishery or program. 
Therefore, NMFS proposes revising Sec.  679.1(e) to read ``Regulations 
in this part govern the Western Alaska CDQ Program (see subparts A, B, 
C, D, and E of this part). The purpose of this program is specified in 
section 305(i)(1)(A) of the Magnuson-Stevens Fishery Conservation and 
Management Act.''

Community Development Plans (CDPs)

    A CDP is defined at Sec.  679.2 as a business plan for the economic 
and social development of a western Alaska community or group of 
communities under the CDQ Program. Under Sec.  679.30, the CDP is both 
an application for allocations of the CDQ and PSQ reserves and an on-
going business plan required to be amended by the CDQ groups under 
certain circumstances. However, amendments to the Magnuson-Stevens Act 
under the Coast Guard Act removed both the authority and the need for 
the CDPs as applications for allocations among the CDQ groups and as 
the primary tool for oversight of the CDQ Program by NMFS and the 
State.
    Section 305(i)(1)(I) of the Magnuson-Stevens Act states the 
following:

    (I) SECRETARIAL APPROVAL NOT REQUIRED.--Notwithstanding any 
other provision of law or regulation thereunder, the approval by the 
Secretary of a community development plan, or an amendment thereof, 
under the program is not required.

    NMFS interprets this provision as prohibiting NMFS from requiring 
approval of CDPs and amendments to CDPs. In addition, CDPs are no 
longer needed as periodic applications for allocations of CDQ reserves 
among the CDQ groups because section 305(i)(1)(C) of the Magnuson-
Stevens Act establishes the percentage allocations of groundfish, 
halibut, and crab among the CDQ groups as the percentage allocations in 
effect on March 1, 2006. A portion of these percentage allocations may 
be adjusted every 10 years starting in 2012 under the provisions of 
section 305(i)(1)(H). Therefore, NMFS proposes to remove the following 
regulations that are no longer consistent with the provisions of 
sections 305(i)(1)(I) and 305(i)(1)(C): (1) regulations at Sec.  
679.30(a) through Sec.  679.30(d) that require submission, review, and 
approval of proposed CDPs; (2) regulations at Sec.  679.30(g) related 
to monitoring of CDPs; and (3) regulations at Sec.  679.30(h) related 
to suspension and termination of a CDP. Furthermore, NMFS proposes to 
delete from Sec.  679.43(a) a reference associated with appealing 
initial administrative decisions made under Sec.  679.30(d).

[[Page 39900]]

    In addition, this proposed rule also would delete paragraph (d)(3) 
of Sec.  679.7, which relates to community participation in the CDQ 
Program. This prohibition refers to a term (CDP) that would no longer 
be applicable to CDQ Program management. Similarly, NMFS proposes to 
delete Sec.  679.7(d)(19), which is associated with complying with the 
requirements of a CDP.
    This rule also proposes to revise or remove several definitions in 
Sec.  679.2 associated with CDPs. The definition of ``CDQ allocation'' 
would be revised to remove a reference to the term CDP, since that term 
is proposed to be removed. The definition for ``CDQ project'' would be 
removed because this term is associated with requirements for the CDP 
in Sec.  679.30. Finally, the definition of ``Qualified applicant'' is 
proposed to be removed because this term refers to applicants for CDQ 
and PSQ allocations under an allocation process described in Sec.  
679.30. This term is no longer in use and is not consistent with the 
Magnuson-Stevens Act.
    On August 30, 2006, NMFS notified the State and the CDQ groups that 
it was suspending enforcement of regulations at 50 CFR part 679 related 
to the CDPs and the CDQ allocation process because of the 
inconsistencies with the Magnuson-Stevens Act. This notification and 
its attachments contain more detailed information about the 
requirements that are proposed to be removed from 50 CFR part 679 
through this proposed rule. A copy of the letter is available at https://www.alaskafisheries.noaa.gov/cdq/default.htm or from NMFS (See 
ADDRESSES).

CDQ Eligible Communities

    The Magnuson-Stevens Act now specifically identifies the 
communities and entities eligible for the CDQ Program. Previously, 
communities were determined to be eligible based on specific criteria 
contained in regulation. This proposed rule would revise the definition 
of ``CDQ group'' in Sec.  679.2 to reference 16 U.S.C. 1855(i)(1)(D), 
which identifies the villages and associated groups that are eligible 
for the CDQ Program. Similarly, this proposed rule would revise the 
definition of ``eligible community'' (for purposes of the CDQ Program) 
in Sec.  679.2 to incorporate a cross-reference to 16 U.S.C. 
1855(i)(1)(D) and to Table 7 of 50 CFR part 679. Table 7 also would be 
revised to include the CDQ groups and communities that are listed in 16 
U.S.C. 1855(i)(1)(D) as a public convenience.
    NMFS notes that, although the Magnuson-Stevens Act uses the term 
``entity'' or ``entities'' in association with the managing 
organizations associated with specific groups of CDQ eligible 
communities, NMFS does not propose to amend regulations that contain 
the commonly used and accepted ``CDQ group'' or ``CDQ groups'' to 
replace it with the terms ``CDQ entity'' or ``CDQ entities.'' Besides 
being used in applicable Federal regulations, the term ``CDQ group'' 
has been commonly used since 1992 in association with general CDQ 
Program administration and by the public. NMFS does not believe that 
adopting the term CDQ entity or entities would enhance CDQ Program 
administration or that such terminology would be readily adopted by the 
public.
    This proposed rule would revise the definition of ``CDQ community'' 
in Sec.  680.2 to reference the list of communities eligible for the 
CDQ Program to incorporate a cross-reference to 16 U.S.C. 1855(i)(1)(D) 
and Table 7 to 50 CFR part 679. The current definition references the 
communities eligible under subpart C of 50 CFR part 679. If subpart C 
of 50 CFR part 679 is revised as proposed in this action, it will no 
longer include regulations about communities eligible for the CDQ 
Program. The definition of ``CDQ group'' in Sec.  680.2 similarly would 
be revised to reference 16 U.S.C. 1855(i)(1)(D) and Table 7 to 50 CFR 
part 679. These changes correspond to the revisions proposed for 
comparable definitions in Sec.  679.2.

Allocations and Transfers

    The proposed rule would revise Sec.  679.31 to consolidate 
regulations associated with (1) the establishment of CDQ and PSQ 
reserves, (2) the allocation of CDQ and PSQ reserves among CDQ groups, 
and (3) the implementation of quota transfers between CDQ groups. These 
proposed changes would make the regulations that are associated with 
the creation, distribution, and use of the fisheries resources 
allocated to the CDQ Program more clear and functional. The changes 
encompass many revisions to this section, as described in the following 
paragraphs.
    This proposed rule would revise both the title and the introductory 
paragraph to Sec.  679.31. The title would be revised to reflect that 
this section contains regulations governing CDQ and PSQ reserves, 
allocations, and transfers, rather than just CDQ and PSQ reserves. The 
introductory paragraph that refers to allocations to a CDQ group in 
accordance with NMFS-approved CDPs and the requirement that no more 
than 33 percent of each CDQ reserve be allocated to any one group with 
an approved CDP would be removed because they are not consistent with 
the Magnuson-Stevens Act. NMFS no longer makes CDQ allocations based on 
approved CDPs. The Magnuson-Stevens Act now contains requirements 
governing the percentage allocation of the CDQ reserves and any 
allocation adjustments that may be made in the future.
    Paragraph (a)(2) of Sec.  679.31 would be revised to remove phrases 
associated with CDPs and eligible communities, since these terms are 
now inconsistent with the Magnuson-Stevens Act; to remove an erroneous 
cross-reference within this paragraph; and to remove a definition of 
``proximate to'' that would become obsolete if the other proposed 
changes in this paragraph are made.
    Paragraph (b) would be added to Sec.  679.31 to add language 
describing how CDQ and PSQ reserves are allocated among CDQ groups. 
Paragraph (b)(1) would state that the groundfish, halibut, and crab CDQ 
reserves would be allocated among the CDQ groups on the basis of the 
CDQ percentage allocations specified in section 305(i)(1)(C) of the 
Magnuson-Stevens Act, unless modified under section 305(i)(1)(H) of 
that act. Section 305(i)(1)(H) provides for a decennial review of the 
CDQ groups' performance and the possibility of an adjustment of up to 
10 percent of each CDQ reserve allocated to each CDQ group. Regulations 
governing the decennial review and allocation adjustment process will 
be addressed in a future rulemaking. Proposed paragraph (b)(2) 
describes the allocation of nontarget groundfish species among CDQ 
groups by the CDQ administrative panel.
    Furthermore, this proposed rule would add paragraph (b)(3) to Sec.  
679.31 to describe how annual allocations of PSQ are allocated among 
CDQ groups. These allocations are based on NMFS's determination about 
PSQ percentage allocations that were included in an August 31, 2006, 
Federal Register notice (71 FR 51804). This proposed paragraph would 
subsequently require that any future change in the percentage 
allocations of PSQ among the CDQ groups be done by regulatory 
amendment.
    The proposed rule would revise requirements related to transfers of 
annual CDQ allocations at Sec.  679.30(e)(1) to be consistent with 
section 305(i)(1)(C) of the Magnuson-Stevens Act. The proposed rule 
also would move the remaining transfer regulations from Sec.  
679.30(e)(1) to consolidate them with other regulations related to CDQ 
allocations at Sec.  679.31(c).
    The CDQ transfer regulations currently state that ``NMFS will not

[[Page 39901]]

approve transfers to cover overages of CDQ or PSQ.'' However, section 
305(i)(1)(C) of the Magnuson-Stevens Act now requires that ``Voluntary 
transfers by and among eligible entities shall be allowed, whether 
before or after harvesting.'' NMFS interprets this requirement as 
applying only to those species allocated to the CDQ Program under 
section 305(i)(1), which are the species that support a directed 
fishery in the BSAI area. Species allocated to the CDQ Program under 
the Magnuson-Stevens Act do not include the prohibited species of 
halibut, crab, and salmon that also are allocated as PSQ to the CDQ 
Program and among the CDQ groups. The CDQ Program historically has been 
annually allocated amounts of prohibited species to account for the 
catch of such species in the groundfish CDQ target fisheries.
    In 2005, prior to the Coast Guard Act and the revisions to the 
Magnuson-Stevens Act, the Council approved an action to modify elements 
of the CDQ Program. This included provisions to (1) only allocate 
target groundfish species to individual CDQ groups, (2) require NMFS to 
manage non-target species at the program level, rather than through 
individual allocations, and (3) allow post-delivery transfers of 
groundfish CDQ or halibut PSQ between CDQ groups to address in-season 
harvest