Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program, 35772-35781 [2011-15284]

Download as PDF 35772 Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 680 [Docket No. 0910301387–1315–02] RIN 0648–AY33 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS issues regulations to implement Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Amendment 34 amends the Bering Sea and Aleutian Islands Crab Rationalization Program to exempt additional recipients of crab quota share from Gulf of Alaska Pacific cod and pollock harvest limits, called sideboards, which apply to some vessels and license limitation program licenses that are used to participate in these fisheries. The North Pacific Fishery Management Council determined that these recipients demonstrated a sufficient level of historical participation in Gulf of Alaska Pacific cod or pollock fisheries and should be exempt from the Gulf of Alaska Pacific cod and pollock sideboards. This action is necessary to give these recipients an opportunity to participate in the Gulf of Alaska Pacific cod and pollock fisheries at historical levels. This final rule revises regulations governing exemptions from and calculations of sideboard harvest limits in the Gulf of Alaska Pacific cod and pollock fisheries and revises Tables 17 and 18 that establish the 2011–2012 Gulf of Alaska groundfish harvest sideboard limits. To fully implement Amendment 34 NMFS will reissue Federal fisheries permits and license limitation program licenses to all participants that are affected by the action. This final rule promotes the goals and objectives of the MagnusonStevens Fishery Conservation and Management Act and the Fishery Management Plan for Bering Sea/ Aleutian Islands King and Tanner Crabs. DATES: Effective July 20, 2011. ADDRESSES: Electronic copies of Amendment 34, the Regulatory Impact Review (RIR), the Final Regulatory Flexibility Analysis (FRFA), and the Categorical Exclusion prepared for this mstockstill on DSK4VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 proposed action may be obtained from http://www.regulations.gov or from the Alaska Region Web site at http:// alaskafisheries.noaa.gov. The Environmental Impact Statement, RIR, FRFA, and Social Impact Assessment prepared for the Crab Rationalization Program are available from the NMFS Alaska Region Web site at http:// alaskafisheries.noaa.gov. FOR FURTHER INFORMATION CONTACT: Rachel Baker, 907–586–7425, or Forrest R. Bowers, 907–586–7240. SUPPLEMENTARY INFORMATION: Background The King and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the Fishery Management Plan for Bering Sea/ Aleutian Islands King and Tanner Crabs (Crab FMP). Groundfish fisheries in the Gulf of Alaska (GOA) are managed under the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the Crab FMP and the GOA FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendments 18 and 19 to the Crab FMP implemented the BSAI Crab Rationalization Program (CR Program). Regulations implementing the FMP, including the CR Program, are located at 50 CFR part 680. Regulations implementing the GOA FMP are at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600. The CR Program allocates BSAI crab resources among harvesters, processors, and coastal communities. The CR Program is a limited access privilege program (LAPP) for nine BSAI crab fisheries. Participants receive exclusive harvesting and processing privileges for a portion of the total allowable catch established for each crab fishery in the CR Program. Sideboards are implemented within LAPPs to prevent participants who benefit from receiving exclusive harvesting privileges from shifting effort into fisheries that are not managed with a LAPP. In developing the CR Program, the Council anticipated that flexibility inherent in the CR program would allow crab fishermen to expand their fishing operations into other fisheries. Because the Bering Sea snow crab (Chionoecetes opilio) and many economically valuable GOA groundfish fisheries were conducted concurrently from January through March the Council was PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 particularly concerned that increased flexibility for recipients of Bering Sea snow crab quota share (QS) could give them an incentive to increase effort in GOA groundfish fisheries. The Council determined that the CR Program should include sideboards for most GOA groundfish fisheries to prevent Bering Sea snow crab QS recipients from increasing their participation in those fisheries. However, because some Bering Sea snow crab QS recipients had significant historical participation in the GOA Pacific cod fishery, the Council also developed criteria that would exempt from sideboards certain Bering Sea snow crab QS recipients with significant participation in, or dependence on, the GOA Pacific cod fishery. The CR Program did not establish sideboard limits for American Fisheries Act (AFA) vessels with historical participation in the Bering Sea snow crab fishery because these vessels are subject to GOA harvesting and processing restrictions under the AFA and the implementing regulations for the AFA (§ 679.64(b)). Vessels subject to the sideboards are referred to as ‘‘non-AFA crab vessels’’. Exemption criteria are based on snow crab and groundfish catch history during a set of qualifying years and are fully described in the preamble to the proposed rule for this action (76 FR 17088). After the CR Program was implemented in 2005, some non-AFA crab vessel operators testified to the Council that the GOA Pacific cod and pollock sideboard limits were too restrictive. These operators indicated that with the sideboard limits they were unable to maintain historical groundfish catch levels in the GOA and should qualify for an exemption from those limits. Some operators testified that although their vessel’s catch history exceeded the maximum allowable amount to qualify for the exemption from the Pacific cod sideboard limits, they had significant history in, and dependence on, GOA Pacific cod and pollock fisheries. Based on this public testimony and a review of the effects of the sideboard limits in the first 2 years of the CR Program (2005/2006 and 2006/ 2007 crab fishing years), the Council determined that the existing criteria for exemption from the sideboard limits in GOA Pacific cod and pollock fisheries should be examined to consider inclusion of additional vessels and LLP licenses with historical participation in and sufficient dependence on these fisheries. The Council initiated an analysis in December 2007 to examine alternatives that would expand the criteria for non-AFA crab vessels to E:\FR\FM\20JNR1.SGM 20JNR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations qualify for an exemption from the Pacific cod sideboard limits and that would extend a similar exemption to the pollock sideboard limits. In October 2008, the Council recommended Amendment 34 to the Crab FMP to exempt additional vessels and groundfish LLP licenses from the GOA Pacific cod and pollock sideboard limits. The Council also clarified that it did not intend for Amendment 34 to disqualify any vessels or groundfish LLP licenses that are currently exempt from non-AFA crab vessel Pacific cod sideboard limits in the GOA. This final rule implements two actions. The first action modifies the criteria exempting vessels and LLP licenses from the non-AFA crab vessel GOA Pacific cod sideboard limits. Under this action, non-AFA crab vessels are exempt from GOA Pacific cod sideboards if their catch history of Bering Sea snow crab from 1996 to 2000 was less than 750,000 lbs. (340.2 mt) and their catch history of Pacific cod during the same time period was greater than 680 metric tons. In developing these new sideboard exemption criteria, the Council first considered a person’s dependence on the GOA Pacific cod fishery demonstrated through both sufficient volume of landings, represented by the 680 metric ton level, which is slightly more than twice the average 1996 to 2000 GOA Pacific cod landings of all non-AFA crab vessels, as well as a person’s recent annual participation in the fishery represented by landings of GOA Pacific cod each year from 1998 to 2007. The Council determined, and NMFS agrees, that the Bering Sea snow crab threshold of less than 100,000 lbs. (45.4 mt) of landings between 1996 and 2000 is too restrictive and that increasing the threshold to less than 750,000 lbs. (340.2 mt) of landings between 1996 and 2000 was justified given demonstrated dependence on the GOA Pacific cod fishery by the three additional vessels and licenses that are estimated to qualify for exemption under this final rule. The Council concluded, and NMFS agrees, that the effects of three additional exempt vessels and LLP licenses on other participants in the GOA Pacific cod fishery would be minimal since these three vessels and LLP licenses represent approximately one percent of the number of participating vessels and their combined harvests of Pacific cod from 1995 through 2009 were less than 2 percent of the total catch of GOA Pacific cod during that period. The second action implemented by this final rule adds an exemption to GOA pollock sideboard limits for nonAFA crab vessels. Under the CR VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 Program, all non-AFA crab vessels are subject to sideboard limits in GOA pollock fisheries. Although some nonAFA crab vessels historically participated in GOA pollock fisheries, the aggregate catch history of GOA pollock by non-AFA crab vessels from 1996 to 2000 yielded sideboard limits that NMFS determined were of an insufficient amount to support directed fishing. Since 2006, NMFS has closed the GOA pollock sideboard fishery to directed fishing by non-AFA crab vessels. With the likelihood of no directed fishing for pollock sideboard limits for the foreseeable future, a GOA pollock-dependent non-AFA crab vessel could not maintain its historical level of participation in GOA pollock fisheries and the Council determined that they are negatively impacted under the status quo. The Council determined and NMFS agrees that a non-AFA crab vessel that was used to land less than 0.22 percent of all Bering Sea snow crab landings from 1996 to 2000 (1,212,673 lbs. (550 mt)), and made 20 landings of pollock harvested from the GOA from 1996 to 2000, was minimally dependent on the Bering Sea snow crab fishery and sufficiently dependent on the GOA pollock fishery to qualify for an exemption from the pollock sideboard limits. In reaching this decision, the Council determined that the 20-landings minimum threshold for an exemption from the GOA pollock sideboard limit was the minimum level of participation by non-AFA crab vessels that would demonstrate significant participation in, and dependence on, the GOA pollock fishery. A single vessel is estimated to qualify for an exemption under the criteria selected by the Council. Pollock comprised approximately 80 percent of the vessel’s catch in the GOA in most years from 1995 through 2000. Additionally, this vessel was used to make at least twice as many landings of pollock (20) harvested from the GOA from 1996 through 2000 than the three other vessel operations that would qualify under lower landings thresholds considered by the Council. The Council determined and NMFS agrees that this catch information clearly demonstrated the operator’s dependence on the GOA pollock fishery. NMFS also agrees with the Council that vessels meeting the proposed threshold for Bering Sea snow crab landings would demonstrate minimal participation in, and dependence on, this fishery because it represents a very low level of harvest relative to other participants in the Bering Sea snow crab fishery. NMFS estimates that the average landings of PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 35773 Bering Sea snow crab per vessel from 1996 through 2000 for all vessels with catch history that generated Bering Sea snow crab QS totaled approximately 2,366,000 lbs (1,073 mt) per vessel. The Council’s recommended threshold of a maximum harvest of 1,212,673 lbs (550 mt) is approximately half of this average. Under Action 2 the Council considered three levels of past participation in the pollock fishery upon which to base the sideboard exemption—5, 10, and 20 landings of GOA pollock from 1996 to 2000 as well as a Bering Sea snow crab landing volume cap of no more than 550 mt of snow crab during the same time period. Four vessels qualified for an exemption under the 5 and 10 landing levels and one qualified under the 20 landing level. In considering the effects of exempting vessels on participants in the GOA pollock fishery, the Council determined that the exemption of one vessel and one LLP license that clearly demonstrated past dependence on the pollock fishery would not negatively affect other participants in the fishery. However, the Council determined, and NMFS agrees, that the exemption of four vessels, three of which had questionable past dependence on the fishery, would negatively affect other GOA pollock fishery participants. To implement Amendment 34, NMFS will revise non-AFA crab vessel sideboard limit ratios that are specified in the final 2011 and 2012 harvest specifications for the GOA. For Action 1, NMFS will remove from the inshore component GOA Pacific cod sideboard limits the amount of retained catch of Pacific cod harvested in the GOA from 1996 through 2000 by the non-AFA crab vessels that qualify for a sideboard limit exemption under Amendment 34. The ratio calculated after the removal of this catch history will be multiplied by the 2011 and 2012 GOA Pacific cod TACs and apportioned by area and season to determine new sideboard limits in metric tons. For Action 2, Amendment 34 does not modify the non-AFA crab vessel pollock sideboard limits from the ratios implemented in the final 2011 and 2012 GOA harvest specifications. The 2011 and 2012 non-AFA crab vessel Pacific cod and pollock sideboard limit ratio calculations already exclude the retained catch of these species harvested from the GOA from 1996 through 2000 by some of the newly exempt non-AFA crab vessels whose owners took advantage of an agency administrative appeals process to challenge implementation of the sideboard limits on their vessels in 2006 because NMFS removed this catch history during the E:\FR\FM\20JNR1.SGM 20JNR1 35774 Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES appeals process. Thus, the 1996 through 2000 catch history of some of the vessels that qualify for an exemption from GOA sideboard limits under Amendment 34 is not currently included in the sideboard limit calculations. As a result, VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 the sideboard limit adjustments necessary to implement Amendment 34 are partially reflected in the 2011 and 2012 harvest specifications. Table 17 and Table 18 present the final 2011 and 2012 non-AFA crab PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 vessel sideboard limits for GOA groundfish harvest under Amendment 34 based on the Council’s recommended harvest specifications for these species. BILLING CODE 3510–22–P E:\FR\FM\20JNR1.SGM 20JNR1 VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4725 E:\FR\FM\20JNR1.SGM 20JNR1 35775 ER20JN11.003</GPH> mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations VerDate Mar<15>2010 Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations 16:50 Jun 17, 2011 Jkt 223001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4725 E:\FR\FM\20JNR1.SGM 20JNR1 ER20JN11.004</GPH> mstockstill on DSK4VPTVN1PROD with RULES 35776 VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4725 E:\FR\FM\20JNR1.SGM 20JNR1 35777 ER20JN11.005</GPH> mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations BILLING CODE 3510–22–C VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\20JNR1.SGM 20JNR1 ER20JN11.006</GPH> mstockstill on DSK4VPTVN1PROD with RULES 35778 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations The vessel owners affected by this final rule hold unique Federal Fisheries Permits (FFP). Federal Fisheries Permits are required on all vessels participating in groundfish fisheries in Federal waters in Alaska and NMFS designates vessel sideboard limitations, or exemptions, on a vessel’s FFP. This final rule also affect holders of a groundfish LLP license derived from catch history generated by a vessel that qualifies for a sideboard exemption under this final rule. The process used by NMFS to determine which vessels and LLP licenses qualify for an exemption from the non-AFA crab vessel GOA Pacific cod and pollock sideboard limits is described as follows. First, a vessel must meet the catch threshold criteria described at § 680.22(a) to qualify for an exemption from non-AFA crab vessel Pacific cod or pollock sideboard limits. Once a vessel is determined to qualify for an exemption from sideboard limits, NMFS will determine whether the GOA groundfish LLP license that was generated by that exempt vessel’s catch history would also qualify for the exemption. An LLP license is deemed to qualify for a GOA Pacific cod or pollock sideboard limit exemption if the vessel with catch history that generated the groundfish LLP license: (1) Qualifies for an exemption under § 680.22(a); and (2) is the only vessel that contributed GOA Pacific cod or pollock catch history to generate the LLP license. This approach prevents a groundfish LLP license that drew its catch history from multiple vessels from qualifying for the sideboard exemption under Amendment 34. NMFS will create an official record with all relevant information necessary to assign landings to specific vessels and LLP licenses. The official record created by NMFS will contain vessel landings data and the LLP licenses to which those landings would be attributed. Evidence of the number and amount of landings will be based only on legally submitted NMFS weekly production reports for catcher/ processors and State of Alaska fish tickets for catcher vessels. Historically, NMFS has used only these two data sources to determine the specific amount and location of landings and NMFS will continue to do so under this final rule. The official record will include the records of the specific LLP licenses assigned to vessels and other relevant information necessary to attribute landings to specific LLP licenses. NMFS will presume the official record is correct and will notify each affected FFP and LLP license holder of the effect of Amendment 34 on their FFP or LLP license. NMFS will mail a VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 notification to the address on record for each FFP and LLP license holder at the time the notification is sent. The notification will indicate which nonAFA crab vessel sideboard category applies to the FFP or LLP license based on the official record: (1) CR GOA Sideboarded for all groundfish species; (2) CR GOA Sideboarded for all groundfish species and no GOA Pacific cod fishing; (3) CR GOA Sideboarded for all groundfish species except Pacific cod; (4) CR GOA Sideboarded for all groundfish species except pollock; or (5) CR GOA Sideboarded for all groundfish species except Pacific cod and pollock. NMFS will include information concerning any changes to the non-AFA crab vessel sideboard restrictions applicable to the FFP or LLP license in the GOA and offer a single 30-day evidentiary period from the date that notification is sent for an FFP or LLP license holder to submit any supporting information, or evidence, to demonstrate that the information contained in the official record is inconsistent with his or her records. An FFP or LLP license holder who submits claims that are inconsistent with information in the official record would have the burden of proving that the submitted claims are correct. NMFS will not accept inconsistent claims unless supported by clear written documentation. NMFS would evaluate additional information or evidence to support an FFP or LLP license holder’s inconsistent claims submitted prior to or within the 30-day evidentiary period. If NMFS determines that the additional information or evidence proves that the FFP or LLP license holder’s inconsistent claims were indeed correct, NMFS would act in accordance with that information or evidence. However, if after the 30-day evidentiary period, NMFS were to determine that the additional information or evidence did not show that the FFP or LLP license holder’s inconsistent claims were correct, NMFS would deny the claim. NMFS would notify the applicant through an initial administrative determination (IAD) that the additional information or evidence did not meet the burden of proof to overcome the official record. NMFS’s IAD would indicate the deficiencies and discrepancies in the information or the evidence submitted in support of the claim. NMFS’s IAD would indicate which claims could not be approved based on the available information or evidence, and include information on how an applicant could appeal the IAD. The appeals process is described in 50 CFR 679.43. A person who appeals an IAD would be eligible PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 35779 to use the disputed FFP or LLP license until final agency action by NMFS on the appeal. The non-AFA crab vessel sideboard limitation, or exemption, designated on an FFP or LLP license would continue to be effective unless modified by a successful appeal. NMFS would reissue any FFP or LLP licenses pending final action by NMFS as interim FFP or LLP licenses. Once final action has been taken, NMFS would reissue the FFP or LLP license as a noninterim license. Interim LLP licenses would be non-transferable to ensure that a person would not receive an LLP license by transfer and have the nonAFA crab vessel sideboard category changed through an appeals process that was initiated and conducted by the previous LLP license holder, a process that a transferee could not control, and which could substantially affect the value and utility of an LLP license. If a person does not dispute the notification of changes to their FFP or LLP license, or upon the resolution of any inconsistent claims, a revised noninterim FFP or LLP license with the appropriate non-AFA crab vessel sideboard category would be reissued to the FFP or LLP license holder, unless the FFP or LLP license is interim for another reason. Notice of Availability and Proposed Rule NMFS published the notice of availability for Amendment 34 on March 14, 2011 (76 FR 13593), with a public comment period that closed on May 13, 2011. NMFS published the proposed rule to implement Amendment 34 on March 28, 2011 (76 FR 17088), and the public comment period closed on April 27, 2011. NMFS received two public comments during the public comment periods, but neither directly addressed Amendment 34 or the proposed rule, rather they were general comments related to the Federal government’s management of marine resources. NMFS made no modifications from proposed to final rule. Classification Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that Amendment 34 and this final rule are consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. This final rule has been determined to be not significant for the purposes of Executive Order 12866. A Final Regulatory Flexibility Analysis (FRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act, which E:\FR\FM\20JNR1.SGM 20JNR1 mstockstill on DSK4VPTVN1PROD with RULES 35780 Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations describes the impact this final rule would have on small entities. Copies of the FRFA prepared for this final rule are available from NMFS (see ADDRESSES). The FRFA prepared for this final rule incorporates by reference an extensive RIR and FRFA prepared for the CR Program that detailed its impacts on small entities. NMFS published the proposed rule to implement Amendment 34 on March 28, 2011 (76 FR 17088), and the public comment period closed on April 27, 2011. An IRFA was prepared and summarized in the ‘‘Classification’’ section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. NMFS received two letters of public comment on Amendment 34 and the proposed rule. Neither of these comments addressed the IRFA. The principal objective of this final rule is to rectify an economic burden that was unintentionally imposed on a small group of non-AFA crab vessels by implementation of the sideboard limit provisions of the CR Program. Action 1 and Action 2 would relieve catch restrictions that apply to certain nonAFA crab vessels in GOA Pacific cod and pollock fisheries. NMFS expects the relief from sideboard limit restrictions will enable these vessels to increase participation in GOA Pacific cod and pollock fisheries as compared to their participation while subject to the sideboard restrictions. The Council and NMFS determined that the existing sideboard limit restrictions do not contain exemption criteria that take into account all nonAFA crab vessels with demonstrated dependence on GOA Pacific cod and pollock fisheries. This outcome is inconsistent with the Council’s intent in establishing the non-AFA crab vessel GOA sideboards, which was to enable non-AFA crab vessels with relatively small amounts of Bering Sea snow crab QS, but with relatively significant participation in GOA groundfish fisheries, to continue fishing in GOA groundfish fisheries without being subject to the sideboard limit restrictions. Compared with the existing sideboard limits, the actions implemented by this rule would most benefit non-AFA crab vessels that the Council deemed are dependent on GOA Pacific cod and pollock fisheries. This rule also would have a low likelihood of negatively impacting other participants in these GOA fisheries. The entities directly regulated by this action are those non-AFA crab vessels that target GOA Pacific cod and pollock VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 in the EEZ of the GOA. Earnings from all fisheries in and off Alaska for 2007 were matched with the non-AFA crab vessels that participated in the GOA Pacific cod and pollock fisheries for that year. Of the six vessels and associated LLP licenses that would be directly regulated by Action 1 to revise the criteria for exemption from the GOA Pacific cod sideboard, five catcher vessels had gross earnings less than $4 million, thus categorizing them as small entities. The remaining vessel, a catcher/processor, had gross earnings greater than $4 million, categorizing the vessel as a large entity. Of the four vessels and associated LLP licenses that would be directly regulated by Action 2 to establish criteria for exemption from the GOA pollock sideboard, all four vessels are estimated to be small entities. One small entity would qualify for exemptions from both the GOA Pacific cod and pollock sideboards under the final actions. All of the entities that would be directly regulated under this final rule would be expected to benefit from the actions relative to the status quo because the proposed actions would relieve restrictions that limit their ability to conduct directed fishing for GOA Pacific cod and pollock. This final rule would not be expected to have adverse impacts on any of the directly regulated small entities. This final rule would not change existing reporting, recordkeeping, and other compliance requirements. The analysis revealed no Federal rules that would conflict with, overlap, or be duplicated by the alternatives under consideration. This final rule does not contain a collection-of-information requirement subject to the Paperwork Reduction Act. Dated: June 15, 2011. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 680 is amended as follows: PART 680—SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for 50 CFR part 680 continues to read as follows: ■ Authority: 16 U.S.C. 1862; Pub. L. 109– 241; Pub. L. 109–479. 2. In § 680.22: a. Revise paragraph (a)(3); b. Add paragraph (a)(4); c. Revise the introductory text of paragraph (d); ■ d. Redesignate paragraph (d)(2) as (d)(3), and revise newly redesignated paragraph (d)(3); and ■ e. Add a new paragraph (d)(2). The revisions and additions read as follows: ■ ■ ■ ■ § 680.22 Sideboard protections for GOA groundfish fisheries. * * * * (a) * * * (3) Vessels and LLP licenses exempt from Pacific cod sideboard closures in the GOA. Any vessel or LLP license that NMFS has determined meets either of the following criteria is exempt from sideboard directed fishing closures for Pacific cod in the GOA: (i) Any vessel subject to GOA groundfish closures under paragraph (a)(1)(i) of this section that landed less than 750,000 lb (340.2 mt), in raw weight equivalents, of Bering Sea snow crab and more than 680 mt (1,499,143 lb), in round weight equivalents, of Pacific cod harvested from the GOA Small Entity Compliance Guide between January 1, 1996, and December 31, 2000; and NMFS has posted a small entity (ii) Any LLP license that: compliance guide on the NMFS Alaska (A) Was initially issued based on the Region Web site (http:// catch history of a vessel meeting the www.fakr.noaa.gov/sustainablefisheries/ criteria in paragraph (a)(3)(i) of this crab/rat/progfaq.htm) to satisfy the section; and Small Business Regulatory Enforcement (B) Did not generate crab QS based on Fairness Act of 1996, which requires a legal landings from any vessel other plain language guide to assist small than the vessel meeting the criteria in entities in complying with this rule. paragraph (a)(3)(i) of this section. Contact NMFS to request a hard copy of (4) Vessels and LLP licenses exempt the guide (see ADDRESSES). from pollock sideboard closures in the GOA. Any vessel or LLP license that List of Subjects in 50 CFR Part 680 NMFS has determined meets either of the following criteria is exempt from Alaska, Fisheries, Reporting and sideboard directed fishing closures for recordkeeping requirements. pollock in the GOA: (i) Any vessel subject to GOA groundfish closures under paragraph PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 * E:\FR\FM\20JNR1.SGM 20JNR1 Federal Register / Vol. 76, No. 118 / Monday, June 20, 2011 / Rules and Regulations (a)(1)(i) of this section that landed less than 1,212,673 lb (550 mt), in raw weight equivalents, of Bering Sea snow crab, and had 20 or more legal landings of pollock harvested from the GOA between January 1, 1996, and December 31, 2000; and (ii) Any LLP license that: (A) Was initially issued based on the catch history of a vessel meeting the criteria in paragraph (a)(4)(i) of this section; and (B) Did not generate crab QS based on legal landings from any vessel other than the vessel meeting the criteria in paragraph (a)(4)(i) of this section. * * * * * (d) Determination of GOA groundfish sideboard ratios. Except for fixed-gear sablefish, sideboard ratios for each GOA groundfish species, species group, season, and area for which annual specifications are made are established according to the following formulas: * * * * * (2) Pollock. The sideboard ratios for pollock are calculated by dividing the aggregate retained catch of pollock by vessels that are subject to sideboard directed fishing closures under paragraph (a)(1) of this section and that do not meet the criteria in paragraph (a)(4) of this section by the total retained catch of pollock by all groundfish vessels between 1996 and 2000. (3) Groundfish other than Pacific cod and pollock. The sideboard ratios for groundfish species and species groups other than Pacific cod and pollock are calculated by dividing the aggregate landed catch by vessels subject to sideboard directed fishing closures under paragraph (a)(1) of this section by the total landed catch of that species by all groundfish vessels between 1996 and 2000. * * * * * [FR Doc. 2011–15284 Filed 6–17–11; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 680 [Docket No. 100723308–1315–02] mstockstill on DSK4VPTVN1PROD with RULES RIN 0648–BA11 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program; Amendment 37 National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: VerDate Mar<15>2010 16:50 Jun 17, 2011 Jkt 223001 Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. NMFS issues regulations to implement Amendment 37 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP). This action amends the Bering Sea/Aleutian Islands Crab Rationalization Program by establishing a process for eligible contract signatories to request that NMFS exempt holders of West-designated individual fishing quota (IFQ) and individual processor quota (IPQ) in the Western Aleutian Islands golden king crab fishery from the West regional delivery requirements. Federal regulations require Westdesignated golden king crab IFQ to be delivered to a processor in the West region of the Aleutian Islands with an exact amount of unused Westdesignated IPQ. However, sufficient processing capacity may not be available each season. This rule is necessary to prevent disruption to the Western Aleutian Islands golden king crab fishery, while providing for the sustained participation of municipalities in the region. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable law. DATES: Effective July 20, 2011. ADDRESSES: Electronic copies of Amendment 37 to the FMP, the Regulatory Impact Review (RIR), the Final Regulatory Flexibility Analysis (FRFA), the Small Entity Compliance Guide, and the Categorical Exclusion prepared for this final action may be obtained from http:// www.regulations.gov or from the Alaska Region Web site at http:// alaskafisheries.noaa.gov. The Environmental Impact Statement, RIR, FRFA, and Social Impact Assessment prepared for the Crab Rationalization Program are available from the NMFS Alaska Region Web site at http:// alaskafisheries.noaa.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 at the above address, e-mailed to OIRA_Submission@omb.eop.gov, or faxed to 202–395–7285. FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907–586–7228. SUPPLEMENTARY INFORMATION: The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the FMP. The FMP was SUMMARY: PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 35781 prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) as amended by the Consolidated Appropriations Act of 2004 (Pub. L. 108–199, section 801). This final rule implements Amendment 37 to the FMP. In April 2010, the Council recommended Amendment 37 to the Secretary of Commerce. NMFS published a Notice of Availability of this amendment in the Federal Register on February 1, 2011 (76 FR 5556), with comments invited through April 4, 2011. NMFS published the proposed rule for this action on February 25, 2011 (76 FR 8700), with comments invited through April 1, 2011. NMFS approved Amendment 37 on April 25, 2011. NMFS received three unique comment letters during the public comment period for Amendment 37 and the proposed rule; however, these comments did not result in any modification to the proposed regulation text. These comments are discussed in greater detail below. Background Amendments 18 and 19 amended the FMP to include the Bering Sea/Aleutian Islands Crab Rationalization Program (Program). Regulations implementing the Program are located at 50 CFR part 680. NMFS established the Program as a catch share program for nine crab fisheries in the BSAI. The IFQ portion of the Program assigned quota share (QS) to persons based on their historic participation in one or more of these nine BSAI crab fisheries during a specific time period. Under the Program, NMFS issued four types of QS: Catcher vessel owner (CVO) QS was assigned to holders of License Limitation Program (LLP) licenses who delivered their catch onshore or to stationary floating crab processors; catcher/processor vessel owner QS was assigned to LLP holders that harvested and processed their catch at sea; captains and crew onboard catcher/ processor vessels were issued catcher/ processor crew QS; and captains and crew onboard catcher vessels were issued catcher vessel crew QS. Each year, a person who holds QS may receive IFQ, which represents an exclusive harvest privilege for a portion of the annual total allowable catch (TAC). Under the program, QS holders can form cooperatives to pool the harvest of the IFQ on fewer vessels to minimize operational costs. NMFS also issued processor quota share (PQS) under the Program. Each year, PQS yields an exclusive privilege to receive for processing a portion of the E:\FR\FM\20JNR1.SGM 20JNR1

Agencies

[Federal Register Volume 76, Number 118 (Monday, June 20, 2011)]
[Rules and Regulations]
[Pages 35772-35781]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15284]



[[Page 35772]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 0910301387-1315-02]
RIN 0648-AY33


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Crab Rationalization Program

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues regulations to implement Amendment 34 to the 
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner 
Crabs. Amendment 34 amends the Bering Sea and Aleutian Islands Crab 
Rationalization Program to exempt additional recipients of crab quota 
share from Gulf of Alaska Pacific cod and pollock harvest limits, 
called sideboards, which apply to some vessels and license limitation 
program licenses that are used to participate in these fisheries. The 
North Pacific Fishery Management Council determined that these 
recipients demonstrated a sufficient level of historical participation 
in Gulf of Alaska Pacific cod or pollock fisheries and should be exempt 
from the Gulf of Alaska Pacific cod and pollock sideboards. This action 
is necessary to give these recipients an opportunity to participate in 
the Gulf of Alaska Pacific cod and pollock fisheries at historical 
levels. This final rule revises regulations governing exemptions from 
and calculations of sideboard harvest limits in the Gulf of Alaska 
Pacific cod and pollock fisheries and revises Tables 17 and 18 that 
establish the 2011-2012 Gulf of Alaska groundfish harvest sideboard 
limits. To fully implement Amendment 34 NMFS will reissue Federal 
fisheries permits and license limitation program licenses to all 
participants that are affected by the action. This final rule promotes 
the goals and objectives of the Magnuson-Stevens Fishery Conservation 
and Management Act and the Fishery Management Plan for Bering Sea/
Aleutian Islands King and Tanner Crabs.

DATES: Effective July 20, 2011.

ADDRESSES: Electronic copies of Amendment 34, the Regulatory Impact 
Review (RIR), the Final Regulatory Flexibility Analysis (FRFA), and the 
Categorical Exclusion prepared for this proposed action may be obtained 
from http://www.regulations.gov or from the Alaska Region Web site at 
http://alaskafisheries.noaa.gov. The Environmental Impact Statement, 
RIR, FRFA, and Social Impact Assessment prepared for the Crab 
Rationalization Program are available from the NMFS Alaska Region Web 
site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Rachel Baker, 907-586-7425, or Forrest 
R. Bowers, 907-586-7240.

SUPPLEMENTARY INFORMATION: 

Background

    The King and Tanner crab fisheries in the exclusive economic zone 
of the Bering Sea and Aleutian Islands (BSAI) are managed under the 
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner 
Crabs (Crab FMP). Groundfish fisheries in the Gulf of Alaska (GOA) are 
managed under the Fishery Management Plan for Groundfish of the Gulf of 
Alaska (GOA FMP). The North Pacific Fishery Management Council 
(Council) prepared, and NMFS approved, the Crab FMP and the GOA FMP 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Amendments 18 and 19 to the Crab 
FMP implemented the BSAI Crab Rationalization Program (CR Program). 
Regulations implementing the FMP, including the CR Program, are located 
at 50 CFR part 680. Regulations implementing the GOA FMP are at 50 CFR 
part 679. General regulations governing U.S. fisheries also appear at 
50 CFR part 600.
    The CR Program allocates BSAI crab resources among harvesters, 
processors, and coastal communities. The CR Program is a limited access 
privilege program (LAPP) for nine BSAI crab fisheries. Participants 
receive exclusive harvesting and processing privileges for a portion of 
the total allowable catch established for each crab fishery in the CR 
Program.
    Sideboards are implemented within LAPPs to prevent participants who 
benefit from receiving exclusive harvesting privileges from shifting 
effort into fisheries that are not managed with a LAPP. In developing 
the CR Program, the Council anticipated that flexibility inherent in 
the CR program would allow crab fishermen to expand their fishing 
operations into other fisheries. Because the Bering Sea snow crab 
(Chionoecetes opilio) and many economically valuable GOA groundfish 
fisheries were conducted concurrently from January through March the 
Council was particularly concerned that increased flexibility for 
recipients of Bering Sea snow crab quota share (QS) could give them an 
incentive to increase effort in GOA groundfish fisheries.
    The Council determined that the CR Program should include 
sideboards for most GOA groundfish fisheries to prevent Bering Sea snow 
crab QS recipients from increasing their participation in those 
fisheries. However, because some Bering Sea snow crab QS recipients had 
significant historical participation in the GOA Pacific cod fishery, 
the Council also developed criteria that would exempt from sideboards 
certain Bering Sea snow crab QS recipients with significant 
participation in, or dependence on, the GOA Pacific cod fishery. The CR 
Program did not establish sideboard limits for American Fisheries Act 
(AFA) vessels with historical participation in the Bering Sea snow crab 
fishery because these vessels are subject to GOA harvesting and 
processing restrictions under the AFA and the implementing regulations 
for the AFA (Sec.  679.64(b)). Vessels subject to the sideboards are 
referred to as ``non-AFA crab vessels''. Exemption criteria are based 
on snow crab and groundfish catch history during a set of qualifying 
years and are fully described in the preamble to the proposed rule for 
this action (76 FR 17088).
    After the CR Program was implemented in 2005, some non-AFA crab 
vessel operators testified to the Council that the GOA Pacific cod and 
pollock sideboard limits were too restrictive. These operators 
indicated that with the sideboard limits they were unable to maintain 
historical groundfish catch levels in the GOA and should qualify for an 
exemption from those limits. Some operators testified that although 
their vessel's catch history exceeded the maximum allowable amount to 
qualify for the exemption from the Pacific cod sideboard limits, they 
had significant history in, and dependence on, GOA Pacific cod and 
pollock fisheries. Based on this public testimony and a review of the 
effects of the sideboard limits in the first 2 years of the CR Program 
(2005/2006 and 2006/2007 crab fishing years), the Council determined 
that the existing criteria for exemption from the sideboard limits in 
GOA Pacific cod and pollock fisheries should be examined to consider 
inclusion of additional vessels and LLP licenses with historical 
participation in and sufficient dependence on these fisheries. The 
Council initiated an analysis in December 2007 to examine alternatives 
that would expand the criteria for non-AFA crab vessels to

[[Page 35773]]

qualify for an exemption from the Pacific cod sideboard limits and that 
would extend a similar exemption to the pollock sideboard limits.
    In October 2008, the Council recommended Amendment 34 to the Crab 
FMP to exempt additional vessels and groundfish LLP licenses from the 
GOA Pacific cod and pollock sideboard limits. The Council also 
clarified that it did not intend for Amendment 34 to disqualify any 
vessels or groundfish LLP licenses that are currently exempt from non-
AFA crab vessel Pacific cod sideboard limits in the GOA.
    This final rule implements two actions. The first action modifies 
the criteria exempting vessels and LLP licenses from the non-AFA crab 
vessel GOA Pacific cod sideboard limits. Under this action, non-AFA 
crab vessels are exempt from GOA Pacific cod sideboards if their catch 
history of Bering Sea snow crab from 1996 to 2000 was less than 750,000 
lbs. (340.2 mt) and their catch history of Pacific cod during the same 
time period was greater than 680 metric tons. In developing these new 
sideboard exemption criteria, the Council first considered a person's 
dependence on the GOA Pacific cod fishery demonstrated through both 
sufficient volume of landings, represented by the 680 metric ton level, 
which is slightly more than twice the average 1996 to 2000 GOA Pacific 
cod landings of all non-AFA crab vessels, as well as a person's recent 
annual participation in the fishery represented by landings of GOA 
Pacific cod each year from 1998 to 2007. The Council determined, and 
NMFS agrees, that the Bering Sea snow crab threshold of less than 
100,000 lbs. (45.4 mt) of landings between 1996 and 2000 is too 
restrictive and that increasing the threshold to less than 750,000 lbs. 
(340.2 mt) of landings between 1996 and 2000 was justified given 
demonstrated dependence on the GOA Pacific cod fishery by the three 
additional vessels and licenses that are estimated to qualify for 
exemption under this final rule. The Council concluded, and NMFS 
agrees, that the effects of three additional exempt vessels and LLP 
licenses on other participants in the GOA Pacific cod fishery would be 
minimal since these three vessels and LLP licenses represent 
approximately one percent of the number of participating vessels and 
their combined harvests of Pacific cod from 1995 through 2009 were less 
than 2 percent of the total catch of GOA Pacific cod during that 
period.
    The second action implemented by this final rule adds an exemption 
to GOA pollock sideboard limits for non-AFA crab vessels. Under the CR 
Program, all non-AFA crab vessels are subject to sideboard limits in 
GOA pollock fisheries. Although some non-AFA crab vessels historically 
participated in GOA pollock fisheries, the aggregate catch history of 
GOA pollock by non-AFA crab vessels from 1996 to 2000 yielded sideboard 
limits that NMFS determined were of an insufficient amount to support 
directed fishing. Since 2006, NMFS has closed the GOA pollock sideboard 
fishery to directed fishing by non-AFA crab vessels. With the 
likelihood of no directed fishing for pollock sideboard limits for the 
foreseeable future, a GOA pollock-dependent non-AFA crab vessel could 
not maintain its historical level of participation in GOA pollock 
fisheries and the Council determined that they are negatively impacted 
under the status quo.
    The Council determined and NMFS agrees that a non-AFA crab vessel 
that was used to land less than 0.22 percent of all Bering Sea snow 
crab landings from 1996 to 2000 (1,212,673 lbs. (550 mt)), and made 20 
landings of pollock harvested from the GOA from 1996 to 2000, was 
minimally dependent on the Bering Sea snow crab fishery and 
sufficiently dependent on the GOA pollock fishery to qualify for an 
exemption from the pollock sideboard limits. In reaching this decision, 
the Council determined that the 20-landings minimum threshold for an 
exemption from the GOA pollock sideboard limit was the minimum level of 
participation by non-AFA crab vessels that would demonstrate 
significant participation in, and dependence on, the GOA pollock 
fishery.
    A single vessel is estimated to qualify for an exemption under the 
criteria selected by the Council. Pollock comprised approximately 80 
percent of the vessel's catch in the GOA in most years from 1995 
through 2000. Additionally, this vessel was used to make at least twice 
as many landings of pollock (20) harvested from the GOA from 1996 
through 2000 than the three other vessel operations that would qualify 
under lower landings thresholds considered by the Council. The Council 
determined and NMFS agrees that this catch information clearly 
demonstrated the operator's dependence on the GOA pollock fishery. NMFS 
also agrees with the Council that vessels meeting the proposed 
threshold for Bering Sea snow crab landings would demonstrate minimal 
participation in, and dependence on, this fishery because it represents 
a very low level of harvest relative to other participants in the 
Bering Sea snow crab fishery. NMFS estimates that the average landings 
of Bering Sea snow crab per vessel from 1996 through 2000 for all 
vessels with catch history that generated Bering Sea snow crab QS 
totaled approximately 2,366,000 lbs (1,073 mt) per vessel. The 
Council's recommended threshold of a maximum harvest of 1,212,673 lbs 
(550 mt) is approximately half of this average.
    Under Action 2 the Council considered three levels of past 
participation in the pollock fishery upon which to base the sideboard 
exemption--5, 10, and 20 landings of GOA pollock from 1996 to 2000 as 
well as a Bering Sea snow crab landing volume cap of no more than 550 
mt of snow crab during the same time period. Four vessels qualified for 
an exemption under the 5 and 10 landing levels and one qualified under 
the 20 landing level. In considering the effects of exempting vessels 
on participants in the GOA pollock fishery, the Council determined that 
the exemption of one vessel and one LLP license that clearly 
demonstrated past dependence on the pollock fishery would not 
negatively affect other participants in the fishery. However, the 
Council determined, and NMFS agrees, that the exemption of four 
vessels, three of which had questionable past dependence on the 
fishery, would negatively affect other GOA pollock fishery 
participants.
    To implement Amendment 34, NMFS will revise non-AFA crab vessel 
sideboard limit ratios that are specified in the final 2011 and 2012 
harvest specifications for the GOA. For Action 1, NMFS will remove from 
the inshore component GOA Pacific cod sideboard limits the amount of 
retained catch of Pacific cod harvested in the GOA from 1996 through 
2000 by the non-AFA crab vessels that qualify for a sideboard limit 
exemption under Amendment 34. The ratio calculated after the removal of 
this catch history will be multiplied by the 2011 and 2012 GOA Pacific 
cod TACs and apportioned by area and season to determine new sideboard 
limits in metric tons. For Action 2, Amendment 34 does not modify the 
non-AFA crab vessel pollock sideboard limits from the ratios 
implemented in the final 2011 and 2012 GOA harvest specifications. The 
2011 and 2012 non-AFA crab vessel Pacific cod and pollock sideboard 
limit ratio calculations already exclude the retained catch of these 
species harvested from the GOA from 1996 through 2000 by some of the 
newly exempt non-AFA crab vessels whose owners took advantage of an 
agency administrative appeals process to challenge implementation of 
the sideboard limits on their vessels in 2006 because NMFS removed this 
catch history during the

[[Page 35774]]

appeals process. Thus, the 1996 through 2000 catch history of some of 
the vessels that qualify for an exemption from GOA sideboard limits 
under Amendment 34 is not currently included in the sideboard limit 
calculations. As a result, the sideboard limit adjustments necessary to 
implement Amendment 34 are partially reflected in the 2011 and 2012 
harvest specifications.
    Table 17 and Table 18 present the final 2011 and 2012 non-AFA crab 
vessel sideboard limits for GOA groundfish harvest under Amendment 34 
based on the Council's recommended harvest specifications for these 
species.
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BILLING CODE 3510-22-C

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    The vessel owners affected by this final rule hold unique Federal 
Fisheries Permits (FFP). Federal Fisheries Permits are required on all 
vessels participating in groundfish fisheries in Federal waters in 
Alaska and NMFS designates vessel sideboard limitations, or exemptions, 
on a vessel's FFP. This final rule also affect holders of a groundfish 
LLP license derived from catch history generated by a vessel that 
qualifies for a sideboard exemption under this final rule.
    The process used by NMFS to determine which vessels and LLP 
licenses qualify for an exemption from the non-AFA crab vessel GOA 
Pacific cod and pollock sideboard limits is described as follows. 
First, a vessel must meet the catch threshold criteria described at 
Sec.  680.22(a) to qualify for an exemption from non-AFA crab vessel 
Pacific cod or pollock sideboard limits. Once a vessel is determined to 
qualify for an exemption from sideboard limits, NMFS will determine 
whether the GOA groundfish LLP license that was generated by that 
exempt vessel's catch history would also qualify for the exemption. An 
LLP license is deemed to qualify for a GOA Pacific cod or pollock 
sideboard limit exemption if the vessel with catch history that 
generated the groundfish LLP license: (1) Qualifies for an exemption 
under Sec.  680.22(a); and (2) is the only vessel that contributed GOA 
Pacific cod or pollock catch history to generate the LLP license. This 
approach prevents a groundfish LLP license that drew its catch history 
from multiple vessels from qualifying for the sideboard exemption under 
Amendment 34.
    NMFS will create an official record with all relevant information 
necessary to assign landings to specific vessels and LLP licenses. The 
official record created by NMFS will contain vessel landings data and 
the LLP licenses to which those landings would be attributed. Evidence 
of the number and amount of landings will be based only on legally 
submitted NMFS weekly production reports for catcher/processors and 
State of Alaska fish tickets for catcher vessels. Historically, NMFS 
has used only these two data sources to determine the specific amount 
and location of landings and NMFS will continue to do so under this 
final rule. The official record will include the records of the 
specific LLP licenses assigned to vessels and other relevant 
information necessary to attribute landings to specific LLP licenses.
    NMFS will presume the official record is correct and will notify 
each affected FFP and LLP license holder of the effect of Amendment 34 
on their FFP or LLP license. NMFS will mail a notification to the 
address on record for each FFP and LLP license holder at the time the 
notification is sent. The notification will indicate which non-AFA crab 
vessel sideboard category applies to the FFP or LLP license based on 
the official record: (1) CR GOA Sideboarded for all groundfish species; 
(2) CR GOA Sideboarded for all groundfish species and no GOA Pacific 
cod fishing; (3) CR GOA Sideboarded for all groundfish species except 
Pacific cod; (4) CR GOA Sideboarded for all groundfish species except 
pollock; or (5) CR GOA Sideboarded for all groundfish species except 
Pacific cod and pollock. NMFS will include information concerning any 
changes to the non-AFA crab vessel sideboard restrictions applicable to 
the FFP or LLP license in the GOA and offer a single 30-day evidentiary 
period from the date that notification is sent for an FFP or LLP 
license holder to submit any supporting information, or evidence, to 
demonstrate that the information contained in the official record is 
inconsistent with his or her records.
    An FFP or LLP license holder who submits claims that are 
inconsistent with information in the official record would have the 
burden of proving that the submitted claims are correct. NMFS will not 
accept inconsistent claims unless supported by clear written 
documentation. NMFS would evaluate additional information or evidence 
to support an FFP or LLP license holder's inconsistent claims submitted 
prior to or within the 30-day evidentiary period. If NMFS determines 
that the additional information or evidence proves that the FFP or LLP 
license holder's inconsistent claims were indeed correct, NMFS would 
act in accordance with that information or evidence. However, if after 
the 30-day evidentiary period, NMFS were to determine that the 
additional information or evidence did not show that the FFP or LLP 
license holder's inconsistent claims were correct, NMFS would deny the 
claim. NMFS would notify the applicant through an initial 
administrative determination (IAD) that the additional information or 
evidence did not meet the burden of proof to overcome the official 
record.
    NMFS's IAD would indicate the deficiencies and discrepancies in the 
information or the evidence submitted in support of the claim. NMFS's 
IAD would indicate which claims could not be approved based on the 
available information or evidence, and include information on how an 
applicant could appeal the IAD. The appeals process is described in 50 
CFR 679.43. A person who appeals an IAD would be eligible to use the 
disputed FFP or LLP license until final agency action by NMFS on the 
appeal. The non-AFA crab vessel sideboard limitation, or exemption, 
designated on an FFP or LLP license would continue to be effective 
unless modified by a successful appeal. NMFS would reissue any FFP or 
LLP licenses pending final action by NMFS as interim FFP or LLP 
licenses. Once final action has been taken, NMFS would reissue the FFP 
or LLP license as a non-interim license. Interim LLP licenses would be 
non-transferable to ensure that a person would not receive an LLP 
license by transfer and have the non-AFA crab vessel sideboard category 
changed through an appeals process that was initiated and conducted by 
the previous LLP license holder, a process that a transferee could not 
control, and which could substantially affect the value and utility of 
an LLP license.
    If a person does not dispute the notification of changes to their 
FFP or LLP license, or upon the resolution of any inconsistent claims, 
a revised non-interim FFP or LLP license with the appropriate non-AFA 
crab vessel sideboard category would be reissued to the FFP or LLP 
license holder, unless the FFP or LLP license is interim for another 
reason.

Notice of Availability and Proposed Rule

    NMFS published the notice of availability for Amendment 34 on March 
14, 2011 (76 FR 13593), with a public comment period that closed on May 
13, 2011. NMFS published the proposed rule to implement Amendment 34 on 
March 28, 2011 (76 FR 17088), and the public comment period closed on 
April 27, 2011. NMFS received two public comments during the public 
comment periods, but neither directly addressed Amendment 34 or the 
proposed rule, rather they were general comments related to the Federal 
government's management of marine resources. NMFS made no modifications 
from proposed to final rule.

Classification

    Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, 
the NMFS Assistant Administrator has determined that Amendment 34 and 
this final rule are consistent with the FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act, which

[[Page 35780]]

describes the impact this final rule would have on small entities. 
Copies of the FRFA prepared for this final rule are available from NMFS 
(see ADDRESSES). The FRFA prepared for this final rule incorporates by 
reference an extensive RIR and FRFA prepared for the CR Program that 
detailed its impacts on small entities.
    NMFS published the proposed rule to implement Amendment 34 on March 
28, 2011 (76 FR 17088), and the public comment period closed on April 
27, 2011. An IRFA was prepared and summarized in the ``Classification'' 
section of the preamble to the proposed rule. The description of this 
action, its purpose, and its legal basis are described in the preamble 
to the proposed rule and are not repeated here. NMFS received two 
letters of public comment on Amendment 34 and the proposed rule. 
Neither of these comments addressed the IRFA.
    The principal objective of this final rule is to rectify an 
economic burden that was unintentionally imposed on a small group of 
non-AFA crab vessels by implementation of the sideboard limit 
provisions of the CR Program. Action 1 and Action 2 would relieve catch 
restrictions that apply to certain non-AFA crab vessels in GOA Pacific 
cod and pollock fisheries. NMFS expects the relief from sideboard limit 
restrictions will enable these vessels to increase participation in GOA 
Pacific cod and pollock fisheries as compared to their participation 
while subject to the sideboard restrictions.
    The Council and NMFS determined that the existing sideboard limit 
restrictions do not contain exemption criteria that take into account 
all non-AFA crab vessels with demonstrated dependence on GOA Pacific 
cod and pollock fisheries. This outcome is inconsistent with the 
Council's intent in establishing the non-AFA crab vessel GOA 
sideboards, which was to enable non-AFA crab vessels with relatively 
small amounts of Bering Sea snow crab QS, but with relatively 
significant participation in GOA groundfish fisheries, to continue 
fishing in GOA groundfish fisheries without being subject to the 
sideboard limit restrictions. Compared with the existing sideboard 
limits, the actions implemented by this rule would most benefit non-AFA 
crab vessels that the Council deemed are dependent on GOA Pacific cod 
and pollock fisheries. This rule also would have a low likelihood of 
negatively impacting other participants in these GOA fisheries.
    The entities directly regulated by this action are those non-AFA 
crab vessels that target GOA Pacific cod and pollock in the EEZ of the 
GOA. Earnings from all fisheries in and off Alaska for 2007 were 
matched with the non-AFA crab vessels that participated in the GOA 
Pacific cod and pollock fisheries for that year. Of the six vessels and 
associated LLP licenses that would be directly regulated by Action 1 to 
revise the criteria for exemption from the GOA Pacific cod sideboard, 
five catcher vessels had gross earnings less than $4 million, thus 
categorizing them as small entities. The remaining vessel, a catcher/
processor, had gross earnings greater than $4 million, categorizing the 
vessel as a large entity. Of the four vessels and associated LLP 
licenses that would be directly regulated by Action 2 to establish 
criteria for exemption from the GOA pollock sideboard, all four vessels 
are estimated to be small entities. One small entity would qualify for 
exemptions from both the GOA Pacific cod and pollock sideboards under 
the final actions. All of the entities that would be directly regulated 
under this final rule would be expected to benefit from the actions 
relative to the status quo because the proposed actions would relieve 
restrictions that limit their ability to conduct directed fishing for 
GOA Pacific cod and pollock. This final rule would not be expected to 
have adverse impacts on any of the directly regulated small entities.
    This final rule would not change existing reporting, recordkeeping, 
and other compliance requirements. The analysis revealed no Federal 
rules that would conflict with, overlap, or be duplicated by the 
alternatives under consideration.
    This final rule does not contain a collection-of-information 
requirement subject to the Paperwork Reduction Act.

Small Entity Compliance Guide

    NMFS has posted a small entity compliance guide on the NMFS Alaska 
Region Web site (http://www.fakr.noaa.gov/sustainablefisheries/crab/rat/progfaq.htm) to satisfy the Small Business Regulatory Enforcement 
Fairness Act of 1996, which requires a plain language guide to assist 
small entities in complying with this rule. Contact NMFS to request a 
hard copy of the guide (see ADDRESSES).

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: June 15, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 680 is amended 
as follows:

PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF 
ALASKA

0
1. The authority citation for 50 CFR part 680 continues to read as 
follows:

    Authority: 16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.


0
2. In Sec.  680.22:
0
a. Revise paragraph (a)(3);
0
b. Add paragraph (a)(4);
0
c. Revise the introductory text of paragraph (d);
0
d. Redesignate paragraph (d)(2) as (d)(3), and revise newly 
redesignated paragraph (d)(3); and
0
e. Add a new paragraph (d)(2).
    The revisions and additions read as follows:


Sec.  680.22   Sideboard protections for GOA groundfish fisheries.

* * * * *
    (a) * * *
    (3) Vessels and LLP licenses exempt from Pacific cod sideboard 
closures in the GOA. Any vessel or LLP license that NMFS has determined 
meets either of the following criteria is exempt from sideboard 
directed fishing closures for Pacific cod in the GOA:
    (i) Any vessel subject to GOA groundfish closures under paragraph 
(a)(1)(i) of this section that landed less than 750,000 lb (340.2 mt), 
in raw weight equivalents, of Bering Sea snow crab and more than 680 mt 
(1,499,143 lb), in round weight equivalents, of Pacific cod harvested 
from the GOA between January 1, 1996, and December 31, 2000; and
    (ii) Any LLP license that:
    (A) Was initially issued based on the catch history of a vessel 
meeting the criteria in paragraph (a)(3)(i) of this section; and
    (B) Did not generate crab QS based on legal landings from any 
vessel other than the vessel meeting the criteria in paragraph 
(a)(3)(i) of this section.
    (4) Vessels and LLP licenses exempt from pollock sideboard closures 
in the GOA. Any vessel or LLP license that NMFS has determined meets 
either of the following criteria is exempt from sideboard directed 
fishing closures for pollock in the GOA:
    (i) Any vessel subject to GOA groundfish closures under paragraph

[[Page 35781]]

(a)(1)(i) of this section that landed less than 1,212,673 lb (550 mt), 
in raw weight equivalents, of Bering Sea snow crab, and had 20 or more 
legal landings of pollock harvested from the GOA between January 1, 
1996, and December 31, 2000; and
    (ii) Any LLP license that:
    (A) Was initially issued based on the catch history of a vessel 
meeting the criteria in paragraph (a)(4)(i) of this section; and
    (B) Did not generate crab QS based on legal landings from any 
vessel other than the vessel meeting the criteria in paragraph 
(a)(4)(i) of this section.
* * * * *
    (d) Determination of GOA groundfish sideboard ratios. Except for 
fixed-gear sablefish, sideboard ratios for each GOA groundfish species, 
species group, season, and area for which annual specifications are 
made are established according to the following formulas:
* * * * *
    (2) Pollock. The sideboard ratios for pollock are calculated by 
dividing the aggregate retained catch of pollock by vessels that are 
subject to sideboard directed fishing closures under paragraph (a)(1) 
of this section and that do not meet the criteria in paragraph (a)(4) 
of this section by the total retained catch of pollock by all 
groundfish vessels between 1996 and 2000.
    (3) Groundfish other than Pacific cod and pollock. The sideboard 
ratios for groundfish species and species groups other than Pacific cod 
and pollock are calculated by dividing the aggregate landed catch by 
vessels subject to sideboard directed fishing closures under paragraph 
(a)(1) of this section by the total landed catch of that species by all 
groundfish vessels between 1996 and 2000.
* * * * *
[FR Doc. 2011-15284 Filed 6-17-11; 8:45 am]
BILLING CODE 3510-22-P