[Federal Register: August 9, 2007 (Volume 72, Number 153)]
[Rules and Regulations]
[Page 44795-44812]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au07-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 0612242964-7332-02; I.D. 080106C]
RIN 0648-AS84
Fisheries of the Exclusive Economic Zone Off Alaska; Individual
Fishing Quota Program; Community Development Quota Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS adopts a rule that modifies the Individual Fishing Quota
(IFQ) Program for the fixed-gear commercial Pacific halibut fishery and
sablefish fishery by revising regulations specific to those fisheries.
This action is intended to improve the effectiveness of the Halibut and
Sablefish IFQ Program (IFQ Program) and is necessary to promote the
objectives of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982
(Halibut Act) with respect to the IFQ fisheries.
DATES: Effective on September 10, 2007, except for Sec. Sec. 679.42(d)
and 679.42(i) which contain information collection requirements that
have not been approved by OMB. NMFS will publish a document in the
Federal Register announcing the effective date of these paragraphs.
ADDRESSES: Copies of the Categorical Exclusion, Regulatory Impact
Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA)
prepared for the proposed rule and the Final Regulatory Flexibility
Analysis (FRFA) prepared for this action may be obtained from the North
Pacific Fishery Management Council (Council) at 605 West 4th, Suite
306, Anchorage, Alaska 99501-2252, 907-271-2809, or NMFS Alaska Region,
P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on the
NMFS Alaska Region website at http://www.noaa.fakr.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS Alaska Region, and by email to
David_Rostker@omb.eop.gov or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228 or
jay.ginter@noaa.gov.
SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission
(IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus
stenolepis) through regulations established under the authority of the
Halibut Act (16 U.S.C. 773-773k). The IPHC promulgates regulations
governing the halibut fishery under the Convention between the United
States and Canada for the Preservation of the Halibut Fishery of the
Northern Pacific Ocean and Bering Sea. The IPHC's regulations are
subject to approval by the Secretary of State with concurrence of the
Secretary of Commerce (Secretary). NMFS publishes the approved IPHC
regulations as annual management measures pursuant to 50 CFR 300.62.
Additional management regulations not in conflict with regulations
adopted by the IPHC (such as the IFQ Program) may be recommended by the
Council and implemented by the Secretary through NMFS to allocate
harvesting privileges among U.S. fishermen under the authority of the
Halibut Act (16 U.S.C. 773-773k).
The U.S. groundfish fisheries of the exclusive economic zone in the
Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands (BSAI) are
managed by NMFS under fishery management plans (FMPs). The FMPs were
prepared by the Council under the Magnuson-Stevens Act (16 U.S.C. 1801
et seq.) and are implemented by regulations at 50 CFR part 679. Fishing
for sablefish (Anoplopoma fimbria) with hook-and-line gear is governed
by regulations implementing the BSAI and GOA groundfish FMPs as part of
the IFQ Program.
Relevant background on the IFQ Program and each part of this action
is presented in the proposed rule published November l, 2006 (71 FR
64218). That publication proposed changes to the IFQ Program
regulations in seven areas. This final rule adopts the following five
changes in their entirety:
Allow transfers of QS for medical reasons;
Require a vessel monitoring system for vessels harvesting
sablefish in the BSAI;
Amend the block program for halibut by (a) allowing a QS
holder to hold 3 blocks rather than 2, (b) dividing halibut blocks in
Areas 3B and 4A that yield more than 20,000 lb (9.1 mt), based on the
2004 harvest figures, into a block of 20,000 lb (9.1 mt) and the
remainder unblocked, and (c) increasing the halibut sweep-up level in
Areas 2C and 3A to 5,000 lb (2.3 mt);
Allow category D QS to be fished on vessels less than or
equal to 60 ft (18.3 m) length overall (LOA) in areas 3B and 4C; and
Allow category B catcher vessel QS for Area 2C halibut and
Southeast Outside District sablefish, which currently must be fished on
vessels greater than 60 ft (18.3 m) LOA, to be fished on catcher
vessels of any length.
The sixth proposed change would have tightened the requirements for
QS holders who use hired skippers by requiring specific documentation
of vessel ownership and requiring ownership of the vessel used by the
hired skipper for the prior 12 months. The final rule adopts the
documentation requirement but not the 12-month ownership requirement.
Specifically, the final rule lists the documentation a QS holder must
submit to prove ownership of a documented vessel that a hired master
will use. This final rule does not adopt the 12-month ownership
requirement in the proposed rule, namely that QS holders must prove at
least the minimum vessel ownership (20 percent ownership interest) for
12 consecutive months prior to using a hired master. NMFS is seeking
clarification from the Council on whether the Council wishes to exclude
from the 12-month requirement those QS holders whose vessels need
temporary repairs and, for that reason, have their QS fished from
vessels that the QS holders have owned less than 12 months.
This final rule does not adopt the seventh proposed change. The
final rule
[[Page 44796]]
does not change the Product Recovery Rate (PRR) for bled sablefish from
0.98 to 1.00. The Secretary disapproves this proposed rule because it
would violate National Standard 2 of the Magnuson-Stevens Act:
``Conservation and management measures shall be based upon the best
scientific information available.''
The parts of the final rule affecting the halibut fishery are
adopted under the authority of the Halibut Act. The parts of the final
rule affecting the sablefish fishery are adopted under the authority of
the Magnuson-Stevens Act. This final rule also implements Amendment 67
to the FMP for Groundfish for the Gulf of Alaska (Notice of
Availability published October 3, 2006; 71 FR 58372), which allows
category B QS to be fished on a vessel of any length in all areas
(November l, 2006; 72 FR 64218). Amendment 67 was approved by the
Secretary on January 3, 2007.
The final rule also adopts two administrative changes that were in
the proposed rule (November l, 2006; 72 FR 64218). The first
administrative change clarifies the existing regulation that once an
IFQ permit holder has caught his or her total sablefish IFQ, the IFQ
permit holder can not catch additional IFQ sablefish in State of Alaska
(State) or Federal waters. The second administrative change eliminates
the term ``IFQ card'' and replaces it with ``IFQ hired master permit.''
The final rule extends this change to the Western Alaska Community
Development Quota (CDQ) Program, changing the term ``CDQ card'' to
``CDQ hired master permit.''
The background and rationale for each part of this final rule were
explained in the proposed rule, published November l, 2006 (71 FR
64218). Changes made in the final rule from the proposed rule are
explained below.
Changes in the Final Rule
This section explains the changes from the proposed rule in the
final rule, except editorial changes, which are not discussed.
1. The final rule revises Sec. Sec. 679.4, 679.5, and 679.7 and
extends the administrative change in the proposed rule regarding IFQ
cards to the CDQ Program. The CDQ halibut fishery and the IFQ halibut
fishery are largely subject to the same fisheries management
regulations. The two fisheries have comparable permitting and reporting
requirements. The final rule eliminates the term ``IFQ cards.'' To
maintain consistency between the IFQ Program and the CDQ Program, the
final rule also eliminates the term ``CDQ cards.'' Under the final
rule, NMFS instead will issue ``CDQ permits'' and ``CDQ hired master
permits.''
As described in the proposed rule, CDQ cards, like IFQ cards,
originally served as a catch accounting tool for identification and
catch reporting through a swipe card computer system. NMFS has replaced
that system with an Internet-based reporting system. Hence, CDQ cards
are obsolete and unnecessary. CDQ hired masters will be required to
carry an original CDQ hired master permit for identification purposes
while fishing for or making landings of CDQ halibut and a copy of the
CDQ permit under which they are fishing. The final rule also revises
associated terms, such as changing ``CDQ cardholder'' to ``CDQ hired
master permit holder.''
2. The final rule clarifies who may seek a medical transfer
provision of catcher vessel QS under Sec. 679.42(d). The final rule
uses the term ``QS holder'' as the most accurate and precise term. The
proposed rule used the term ``IFQ holder'' and ``QS holder.'' An ``IFQ
holder'' could be confused with an ``IFQ permit holder.'' Usually, an
IFQ permit holder will also hold QS, but a few IFQ catcher vessel
permit holders do not hold QS because they are leasing QS from the heir
of a deceased QS holder under Sec. 679.41(k) or from a Community Quota
Entity under Sec. 679.41(l). The IFQ Program generally does not allow
catcher vessel QS to be leased; however, the Council and the Secretary
have approved leasing in these restricted situations. The person who
leases catcher vessel QS receives an IFQ permit and is therefore an IFQ
permit holder, but not necessarily a QS holder.
NMFS concludes that the Council intended to allow medical transfers
by QS holders, not the slightly larger class of IFQ permit holders. The
IRFA, prepared by Council staff, described those eligible for the
benefit of medical transfers as ``individual halibut or sablefish QS
holders.'' If IFQ permit holders who are lessees could obtain a medical
transfer of the right to fish the pounds remaining on their IFQ permit,
those IFQ permit holders would, in essence, be subleasing QS. Because
the basic rule in the IFQ Program is that catcher vessel QS cannot be
leased, and because the Council has approved leasing only in strictly
limited situations, NMFS concludes that the Council did not intend to
allow subleasing of QS and did not intend to grant the benefit of
medical transfers to IFQ permit holders who are fishing leased QS.
A corollary of this conclusion is that a QS holder may obtain a
medical transfer only of the IFQ derived from the QS certificate issued
in the name of the QS holder. Sometimes a QS holder has IFQ derived
from his or her QS and IFQ leased from another QS holder on the same
IFQ permit. The QS holder may obtain a medical transfer only for the
IFQ derived from his or her own QS. The final rule makes explicit that
NMFS may not approve a medical transfer of leased QS.
By specifying that a ``QS holder'' may obtain a medical transfer,
the final rule also clarifies that an IFQ or CDQ hired master permit
holder cannot obtain a medical transfer other than for his or her IFQ.
If a hired master becomes sick and unable to participate in the
fishery, the QS holder who hired the master can hire another master.
Again, NMFS concludes that the Council did not intend to allow
subleasing of QS, in this instance by the hired master who becomes
sick.
3. The final rule clarifies who may receive an emergency waiver
under Sec. 679.42(d)(1). This provision allows NMFS to waive the
requirements that the person authorized to fish IFQ sablefish or
halibut be present on the vessel and sign the landing report, if that
person experiences an extreme personal emergency during a fishing trip.
The prior regulation stated that NMFS could waive those requirements
for an IFQ card holder. Because the rule eliminates IFQ cards, the
final rule states that NMFS may waive those requirements for ``a person
authorized to fish IFQ halibut or IFQ sablefish,'' which may be an IFQ
permit holder or an IFQ hired master permit holder.
4. The final rule eliminates the requirement proposed at Sec.
679.42(d)(2)(iv)(B) that NMFS disapprove an application for a second
medical transfer unless a health professional attested to a reasonable
likelihood of recovery of the applicant. This requirement is eliminated
from the final rule because the Council motion adopting this action did
not have that requirement. Further, this requirement would put an
applicant's doctor or other health professional and the applicant in a
difficult situation if the doctor could not attest that the applicant
had a reasonable likelihood of recovery. Additionally it might be hard
for a health professional to assess whether the applicant/patient has a
reasonable likelihood of recovery if the patient is in the early stages
of diagnosis and treatment of a disease or condition. NMFS notes that
the Council's motion had other elements which prevented potential abuse
of medical transfers such as a prohibition against a QS holder
receiving a medical transfer more
[[Page 44797]]
than twice in five years and the requirement for proof of a qualifying
medical condition from a health professional. These requirements were
in the proposed rule and are retained in the final rule.
5. The final rule clarifies the documentation that a QS holder must
submit to prove the QS holder's minimum 20 percent ownership in the
vessel from which a hired master will fish the QS. The QS holder who is
an owner of a documented vessel must submit an Abstract of Title issued
by the U.S. Coast Guard to show that the QS holder is an owner of the
vessel and, if the Abstract of Title does not prove the required
percentage interest, the QS holder must submit additional written
documentation. The QS holder who is the owner of an undocumented vessel
must submit a State of Alaska boat registration or a commercial vessel
license that shows that the QS holder is an owner of the vessel. The
State of Alaska issues an ``Alaska Boat Registration'' through its
Department of Motor Vehicles and a ``Commercial Vessel License''
through its Commercial Fisheries Entry Commission. If either State
document does not prove the required percentage ownership, the final
rule clarifies that the QS holder must submit further written
documentation to prove the required percentage ownership.
This clarification was necessary because the proposed rule at Sec.
679.42(i) and (j) required proof of ownership of a documented vessel
``as supported by the U.S. Abstract of Title issued by the U.S. Coast
Guard and any other documentation indicating percentage ownership'' and
proof of ownership of an undocumented vessel ``as supported by a State
of Alaska vessel registration and any other documentation indicating
percentage ownership.'' The problem with this language is that it did
not clearly state the role and purpose of ``other documentation.'' On
one hand, read literally, it required the QS holder to submit the
Abstract of Title and other documentation, even if the abstract or the
State document sufficiently proved percent ownership. On the other
hand, it could have been read to allow a QS holder to prove the
required ownership interest through other documentation only, without
submitting an Abstract of Title. The latter interpretation would have
been the same as the prior regulation which merely required a QS holder
to submit written documentation of his or her ownership interest.
The Council concluded that the prior regulation the requirement
simply for written documentation was inadequate. It was concerned that
some QS holders were abusing the hired skipper provision through vessel
ownership arrangements that were informal and unverifiable. The Council
also was responding to NMFS staff reports that NMFS had difficulty
verifying the required ownership under the prior regulation which
simply required written documentation. The final rule addresses the
Council's concerns by requiring that the QS holders submit specified
formal documents that are issued by the government to prove that they
are an owner of the vessel that will be used to harvest their IFQ. If
these formal documents do not show percentage ownership, the final rule
requires QS holders to supplement those formal documents with other
written documentation.
6. The final rule does not adopt the proposed requirement that a QS
holder prove the minimum 20 percent vessel ownership for 12 months
prior to the QS holder's use of a hired master. NMFS is seeking
clarification from the Council on whether the Council wants also to
exempt QS holders whose vessels need repairs from the 20 percent/12-
month requirement and, if so, the criteria for the exemption. For a
full explanation, see Response to Comment 4.
7. The final rule adds Sec. 679.42(g)(2) which directs the
Regional Administrator to identify all halibut blocks in Areas 3B and
4A that result in an allocation of more than 20,000 lb (9.1 mt) of
halibut IFQ, based on the 2004 total allowable catch (TAC) for fixed
gear halibut in those areas, and divide those halibut blocks into one
block of 20,000 lb (9.1 mt) and the remainder unblocked, based on the
2004 TAC. This action was analyzed in the RIR/IRFA and specifically
adopted by the Council. The proposed rule inadvertently omitted the
regulatory text for this action although its description and rationale
were presented in the proposed rule, and NMFS gave notice that it was
considering approving it (71 FR 64222 - 64223). The final rule adopts
this action as recommended by the Council and described in the proposed
rule.
Because of this change, existing paragraph (g)(2) with the heading
``Holding or to hold blocks of QS'' is renumbered as paragraph (g)(4).
Proposed paragraph (g)(3) in this section, headed ``Transfer of QS
blocks,'' remains paragraph (g)(3) in the final rule. However, the
final rule clarifies paragraph (g)(3) to provide an exception to the
requirement in paragraph (g)(1)(i) for those persons who have more than
one block of QS and unblocked QS as a result of the Regional
Administrator's action under paragraph (g)(2). The final rule also
eliminates a specific effective date for this provision and relies
instead on the overall effective date of the final rule (see DATES).
8. The final rule does not approve the proposed change in the PRR
for bled sablefish from 0.98 to 1.00. NMFS finds that this proposed
change is not based on the best scientific information available, and
would violate National Standard 2 in the Magnuson-Stevens Act, that
requires conservation and management measures to be based upon the best
scientific information available (16 U.S.C. 1851 (a)(2)). Therefore,
the PRR for bled sablefish remains at 0.98. See responses to comments
20, 21 and 22 below.
Comments and Responses
NMFS received 12 letters that contained 22 comments on the proposed
rule.
Comment 1: One individual, who identified himself as a current IFQ
holder, stated that he supported all the proposed changes as beneficial
to the IFQ Program.
Response: This support is noted.
Comment 2: NMFS allows too many fish to be harvested. Fish species
are going extinct.NMFS should cut all quotas by 50 percent this year
and 10 percent each succeeding year.
Response: This rule changes certain features of the IFQ Program and
does not affect how many halibut or sablefish may be harvested in
Federal waters off Alaska. NMFS disagrees with the commenter's
perception that fish species off Alaska are going extinct. Halibut and
groundfish are managed conservatively and sustainably with annual
quotas based on the best scientific information available. The IPHC
recommends annual catch limits for Pacific halibut, which are adopted
in regulations that the United States Secretary of State approves under
section 4 of the Halibut Act. NMFS annually publishes catch limits and
other management measures that are recommended by the IPHC to sustain
halibut stocks. For 2007, the annual management measures for halibut
were published March 14, 2007 (72 FR 11792). NMFS sets the annual TAC
for groundfish, including sablefish, in regulations which are adopted
by the Secretary under the Magnuson-Stevens Act. NMFS annually
publishes TAC specifications for groundfish, including sablefish, and
the rationale for the TAC, in the Federal Register. The TACs for
groundfish for 2007 and 2008 in the BSAI were published on March 2,
2007 (72 FR 9451). The TACs for groundfish for 2007 and 2008 in the
Gulf of Alaska
[[Page 44798]]
were published on March 5, 2007 (72 FR 9676).
Comment 3: Two comments specifically supported the new provision at
Sec. 679.42(d)(1) to allow medical transfers by QS holders.
Response: The support is noted.
Comment 4: Under proposed Sec. 649.42(i)(1), QS holders who want
to use a hired master to harvest their IFQ must have owned at least a
20 percent interest in the vessel from which the QS will be fished for
at least 12 months prior to their using a hired master permit. The
proposed regulation at Sec. 679.42(i)(6) exempted a QS holder from
this requirement if the QS holder suffered ``the actual total loss or
constructive total loss'' of a vessel owned by the QS holder. The final
rule should define ``constructive total loss'' to include a vessel that
is out of the fishery for 30 days or longer. Another comment said that
a vessel owner should be exempt if his or her vessel would be out of
the fishery for repairs for two to six months.
Response: NMFS acknowledges that the term ``constructive total
loss'' was not defined in the proposed rule and agrees that it should
be defined in a final rule. The terms ``total loss'' and ``constructive
total loss'' are most commonly used in insurance. ``Total loss'' means
the complete destruction of an item of property. ``Constructive total
loss'' means a loss to insured property that is not total, but is so
great that repair would cost more than the value of the property. Some
definitions of ``constructive total loss'' include that the item has
lost its total usefulness to the insured person. If NMFS were going to
adopt the 12-month vessel ownership requirement in the final rule, the
only QS holders that it could exempt from the 20 percent/12-month
requirement would be those IFQ permit holders who had suffered a total
loss or constructive total loss of their vessels, in accordance with a
standard definition of those terms.
NMFS cannot adopt in this final rule a definition of ``constructive
total loss'' that includes a vessel that is out of the IFQ fishery
temporarily for repair. This definition of ``constructive total loss''
was not in the proposed rule. This definition is antithetical to the
standard definition of ``constructive total loss,'' which is that the
item is unable to be repaired for less than the value of the item.
Thus, NMFS could not, consistent with the requirements in the
Administrative Procedure Act, adopt in this final rule an exemption
from the 12-month requirement for QS holders whose vessels are
undergoing repair because the proposed rule did not give notice that
NMFS might adopt that provision. A vessel repair exemption is not a
logical outgrowth of the proposed rule, which exempted only QS holders
who suffered a total loss or constructive total loss of their vessels.
Comments on this subject, however, bring to light a consequence of
the proposed rule, which NMFS concludes was unanalyzed, and probably
unintended, by the Council. Currently, if a QS holder's vessel needs
repairs, the QS holder can acquire a 20 percent ownership interest in
another vessel and use a hired master on that vessel to harvest his or
her IFQ. Under the proposed rule, if a QS holder's vessel suffers
damages and is out of the fishery for repairs, the QS holder would not
be able to hire a master to fish his or her QS until his vessel is
repaired, or until 12 months have elapsed, unless the QS holder had a
minimum 20 percent ownership interest in a second vessel for the 12
months prior to wanting to use a hired master and the second vessel was
available to fish in the IFQ fishery. NMFS is not willing to presume
that many or most QS holders could maintain at least a 20 percent
ownership interest in two or more vessels.
For QS holders who may use hired masters (other than in Area 2C for
halibut or Southeast Outside for sablefish), the proposed rule left
them the option of personally fishing their IFQ. If an individual QS
holder is personally fishing his or her IFQ, this can be done from any
boat, even if the QS holder has no ownership interest in it. For QS
holders that must use hired masters such as corporations or
partnerships that were initial QS recipients, the proposed rule did not
leave them that option because they must use a hired master.
It is not clear whether the Council wanted to exempt QS holders
whose vessels need repairs from the 12-month vessel ownership
requirement, from the 20 percent ownership requirement or from the
combined 20 percent/12-month vessel ownership requirement. In December
2006 the Council passed a resolution asking NMFS to define
``constructive loss.'' The Council then submitted a comment on the
proposed rule. The Council's comment suggests that the Council wanted
NMFS to define ``constructive loss'' to include a vessel that was out
of the fishery for repairs. In that case, however, NMFS has
insufficient guidance on what vessel repair situations to exempt. This
uncertainty leads to the following questions: Would any repair of a
vessel, or only certain types of repairs, trigger an exemption from the
12-month ownership requirement? Would a QS holder who is scheduling a
vessel upgrade or routine maintenance be exempt or only a QS holder
whose vessel needs unanticipated repairs? Would the exemption be
triggered by repairs over a certain dollar amount or by repairs that
kept the vessel out of the fishery for a certain period of time? Would
it matter whether the need for repairs occurred early or late in the
IFQ season? For how long would the QS holder be exempt from the 12-
month requirement? And would the QS holder whose vessel needs repairs
be exempt from the 12-month ownership requirement and the 20 percent
ownership requirement? After receiving Council guidance on this issue,
the Administrative Procedure Act would require that NMFS publish the
criteria or conditions of the ``vessel repair'' exemption in a new
proposed rule, before NMFS could adopt it in a final rule.
Therefore, NMFS is not adopting the 12-month requirement in the
final rule and is seeking clarification from the Council on whether it
wants to exempt QS holders whose vessels need repair from the 20
percent ownership requirement, the 12-month ownership requirement, or
the combined 20 percent/12-month requirement and, if it does, the terms
of the exemption.
Comment 5: The only QS holders who have the right to use a hired
skipper are QS holders who were initial recipients of QS for catcher
vessels and who meet other requirements. Some of these ``old timers''
will not be able to afford to buy or build a new boat and then leave it
tied to the dock for 12 months before it goes fishing.
Response: The proposed regulation would not have required a QS
holder to leave a boat tied to the dock before the vessel goes fishing,
as it could have been used in non-IFQ fisheries. If NMFS had adopted
this part of the proposed rule, NMFS would have had to determine
whether to make this requirement effective immediately or whether to
delay the effective date for 12 months. See Comment 9.
As noted in response to Comment 4, NMFS has concluded that the
proposed regulation affected whether these ``old timers'' could use
hired masters to fish their IFQ when their vessels were out of the
fishery temporarily for repairs. NMFS is seeking clarification from the
Council on whether it wants to exempt from the 20 percent/12-month
vessel ownership requirement only those QS holders who suffer a total
loss or total constructive loss of their vessels or whether it also
wants to exempt QS holders whose vessels are temporarily
[[Page 44799]]
out of the fishery for repairs and, if so, the terms of the exemption.
Comment 6: The proposed requirement for a QS holder to own a 20
percent interest in a vessel for 12 months prior to using a hired
master will make entry into the halibut and longline fishery more
difficult. Under the current system, it is easier for a person who owns
a vessel, and does not own IFQ, to find IFQ permit holders to be
partners.
Response: The imposition of a 12-month vessel ownership requirement
would still allow those seeking entry into the IFQ fishery to prove
themselves by forming ownership agreements with IFQ permit holders, but
they would have to be longer-term agreements, i.e., a year or longer.
If the imposition of the 12-month ownership requirement causes QS
holders who have been entering into short-term ownership agreements to
sell their QS, more QS will be available for purchase by those seeking
entry into an IFQ fishery.
As noted in response to Comment 4, however, NMFS needs the Council
to clarify whether it wishes to exempt QS holders whose vessels are
temporarily out of the IFQ fishery for repairs from the 20 percent/12-
month ownership requirement and if so, the terms of the exemption.
Comment 7: The problem of QS holders forming short-term vessel
ownership agreements has never been quantified and is a personal issue
only.
Response: NMFS disagrees that the proposed 12-month vessel
ownership rule was merely responding to ``personal issues.'' The
Council was responding to genuine policy concerns. From the inception
of the IFQ Program, the Council's goal has been to have an owner-
operated fleet in the IFQ fisheries. Based on the Council's
recommendation, NMFS adopted the minimum 20 percent vessel ownership
requirement in 1999 (May 10, 1999; 89 FR 24960). Before that, an IFQ
permit holder wishing to use a hired master had to prove only ``an
ownership interest'' and IFQ permit holders could acquire as little as
0.1 percent ownership interest in a vessel expressly for the purpose of
hiring a skipper (December 16, 1998; 63 FR 69256). The Council required
a minimum 20 percent ownership interest to prevent that practice, which
had circumvented the Council's goal of an owner-operated fleet in the
IFQ fisheries. But the minimum 20-percent-ownership requirement still
allowed an IFQ permit holder to ``own'' a 20 percent interest in a
vessel for a short period of time, e.g., the duration of a two- or
three-week fishing trip. Such short-term ownership agreements
undermined the development of an owner-operated fishery. Therefore, in
addition to a substantial percentage ownership, defined as 20 percent
or more, the Council recommended an additional requirement of owning
the vessel for a substantial period of time, defined as twelve months
or longer.
The proposed 12-month ownership requirement resulted from
recommendations of Council committees established to assist the Council
in its conservation and management duties under the Magnuson-Stevens
Act. In October 2003 the IFQ Implementation and Cost Recovery Committee
(Committee) recommended a number of changes in the IFQ Program. The
Committee recommended that NMFS implement criteria to tighten
compliance with the minimum 20 percent vessel ownership requirement
that the Council adopted in 1999, including a one-year limitation on
ownership changes. In December 2003, the Advisory Panel for the Council
reviewed the Committee's recommendations and recommended that the
Council analyze them. In December 2003, the Council approved the
Committee's recommendations for analysis. In October 2004, the Council
approved publication of the analysis for public review and comment. In
December 2004, the Council approved tightening the 20 percent vessel
ownership requirement by requiring specified documentation of ownership
and by requiring that the QS holder have the requisite minimum
ownership interest for twelve months prior to using the hired skipper
exception. All meetings of the Council and its committees are open to
the public.
As noted in response to Comment 4, however, the proposed rule would
have prevented all QS holders from entering into short-term ownership
agreements, including those who do so because their vessels need
repairs. NMFS is seeking clarification from the Council on whether the
Council wishes to exempt from the 20 percent/12-month ownership
requirement those QS holders whose vessels are temporarily out of the
IFQ fishery due to repairs and, if so, the terms of the exemption.
Comment 8: The proposed requirement that a QS holder own a 20
percent interest in a vessel for twelve months prior to applying to use
a hired master is unnecessary because the only QS holders who can hire
masters are original recipients. Eventually, no original recipients
will exist and all QS holders will have to be onboard the vessel when
their IFQ is fished.
Response: NMFS agrees that in the long run this problem will be
resolved as original recipients pass from the fishery. However, a
considerable amount of catcher vessel QS is still held by QS holders
who may use hired masters and QS holders who must use hired masters. As
of 2002, QS holders who may use hired masters held 42 percent of the
halibut catcher vessel QS and 33 percent of sablefish catcher vessel
QS. As of 2002, QS holders who must use hired masters held 25 percent
of halibut catcher vessel QS and 30 percent of sablefish catcher vessel
QS (see Table 3.1 of the FRFA). Because many QS holders are still using
hired masters, the Council and NMFS can impose restrictions to prevent
these QS holders from, in effect, leasing their QS. Hence, the
Council's recommendation and the proposed rule that these original QS
holders must have a substantial, long term interest in the vessel from
which their QS is fished.
As noted in response to Comment 4, however, the proposed rule would
have prevented all QS holders from entering into short-term ownership
agreements, including those who do so because their vessels need
repairs. NMFS is seeking clarification from the Council on whether the
Council wishes to exempt from the 20 percent/12 month ownership
requirement those QS holders whose vessels are temporarily out of IFQ
fishery due to repairs and, if so, the terms of the exemption.
Comment 9: If NMFS adopts the proposed 12-month ownership provision
in Sec. 679.42(i) and (j), the effective date of this provision should
be 12 months after the regulation is adopted. This would provide lead
time for compliance by QS holders before the regulation becomes law.
Response: NMFS is not adopting the 12-month ownership requirement
in this final rule. If NMFS adopts this requirement in a future rule,
NMFS will consider this comment when it sets an effective date for the
rule.
Comment 10: The proposed 12-month ownership requirement in Sec.
649.42(i) and Sec. 679.42 (j)(1) imposes an unfair burden on QS
holders that are required to hire a master to harvest their QS.
Maintaining and insuring a vessel for 12 months prior to using the
vessel is an inequitable requirement. QS holders who may, or who must,
use a hired master could be required to maintain their ownership for a
period of 12 months without such an economic burden. An alternative
suggested in the comment is to accept only one change annually in a
vessel's documentation.
Response: NMFS does not see this comment as a reason not to adopt
the
[[Page 44800]]
12-month ownership requirement. If by ``economic burden,'' the
commenter means that the rule may result in QS holders making a more
substantial investment in the vessels from which their QS is fished,
NMFS sees that as consistent with the Council's reasons for adopting
the 12-month ownership requirement. See Response to Comment 7. The
alternative suggested by the commenter only one change in vessel
ownership a year does not require that the QS holder maintain an
ownership interest for 12 months. This alternative still allows a QS
holder to use a hired master on a vessel in which the QS holder had an
ownership interest only for the duration of a fishing trip.
However, the minimum 12-month requirement would affect all QS
holders, including those QS holders who resort to short-term vessel
ownership agreements because their regular vessels need repairs. NMFS
is seeking clarification from the Council on whether it wishes to
exempt QS holders whose vessels are temporarily out of the IFQ fishery
for repairs from the 20 percent/12-month ownership requirement and, if
it does, the terms of the exemption.
Comment 11: The proposed regulation is good because it tightens up
the requirement for a QS holder to use a hired skipper. The current
regulation is too vague.
Response: NMFS agrees that the previous regulation for
documentation of a QS holders's 20 percent ownership interest in the
vessel was vague in that it required an individual to submit only non-
specified ``written documentation.'' The final rule requires specific
documentation an Abstract of Title for documented vessels and a State
of Alaska boat registration or commercial vessel license for
undocumented vessels. See the discussion of change number 5 under
``Changes in the Final Rule.''
The proposed rule also sought to restrict the use of hired masters
by requiring a QS holder to own the required interest in a vessel for
at least 12 months before receiving a hired master permit. As noted,
NMFS is seeking clarification from the Council on whether it wants to
exempt QS holders whose vessels need repairs from the minimum 12-month
vessel ownership requirement and, if so, the terms of the exemption.
Comment 12: The final rule should define what documentation is
necessary to prove a ``constructive total loss'' for the exemption from
the 12-month ownership vessel requirement in Sec. 679.42(i)(6).
Response: This final rule does not specify what documentation is
necessary to prove a ``constructive total loss'' because it does not
adopt any provision that contains the term ``constructive total loss.''
As previously noted, NMFS is seeking clarification from the Council on
whether it wants to exempt from the 12-month ownership requirement only
those QS holders who have suffered a total loss or total constructive
loss of their vessel or whether it also wants to exempt those QS
holders whose vessels are out of the IFQ fishery temporarily for
repair. If in the future the Council proposes a rule that requires a QS
holder to prove a ``constructive total loss'' of a vessel, the Council
will evaluate whether to specify the documentation required to prove
the loss.
Comment 13: The proposed regulation specifying the documentation
that a QS holder must submit to prove 20 percent ownership interest in
a vessel is unnecessary because an owner already has to produce
documentation to prove 20 percent ownership of a vessel.
Response: NMFS disagrees. The prior regulation required only that
NMFS determine 20 percent ownership of a vessel ``on the basis of
written documentation'' (50 CFR 679.42(i)(1)). The Council was
concerned that, under the prior regulation, some vessel owners were
abusing the hired skipper provision through the use of informal,
unverifiable transactions. The Council also was responding to NMFS
staff reports that, under the prior regulation, it had been difficult
to verify the minimum 20 percent vessel ownership. The final rule meets
the Council's concerns by requiring the QS holder to submit a formal
document of ownership issued by a government agency. An owner of a
documented vessel must submit an Abstract of Title issued by the U.S.
Coast Guard that shows the QS holder is an owner of the vessel. An
owner of an undocumented vessel must submit a State of Alaska boat
registration or commercial vessel license that shows the QS holder is
an owner of the vessel. If these documents prove the required
percentage ownership, the QS holder need not submit any other
documentation. If these formal documents do not prove percentage
ownership, the QS holder must prove the required percentage ownership
through additional written documentation.
Comment 14: Vessel operators who harvest sablefish in the BSAI
should not be exempt from the Vessel Monitoring System (VMS) based on
vessel size. If an exemption is desired, it should be based on the
value of the sablefish that the vessel harvests in a year.
Response: This rule does not exempt any vessel operator who
harvests sablefish in the BSAI from the requirement to have a VMS. The
requirement applies to all vessels. The preamble to the proposed rule
invited comment on whether small vessels should be exempt from the VMS
requirement. No comments were received in favor of exempting vessels
based on size. This comment merely stated that an exemption based on
the amount of a vessel's harvest would be better than an exemption
based on an overall length of a vessel. For reasons described in the
preamble to the proposed rule, NMFS concludes that no exemption is
warranted.
Comment 15: Our vessel is already required to have a VMS, because
we fish in critical habitat in the Aleutian Islands and in area 4B.
Using the VMS for clearance in the BSAI has turned out to have some
actual time and fuel saving benefits.
Response: NMFS notes this information.
Comment 16: The number of QS blocks that a person can hold should
not be increased from two blocks to three blocks. The proposed
regulation allows further fleet consolidation, will result in less
blocks available for purchase, will likely increase the cost of QS and
will make entry into the halibut fishery more difficult.
Response: When the IFQ Program was started, all initially issued QS
that resulted in less than 20,000 lb of IFQ was ``blocked,'' that is,
issued as an inseparable unit. Also, no person was allowed to own more
than two QS blocks per species in any regulatory area, or one QS block,
if unblocked QS also was held by that individual for that area. The
block approach was meant to prevent excessive consolidation in the IFQ
fisheries, and maintain the diversity of the IFQ longline fleet,
without compromising the flexibility and economic efficiency of the
program as a whole. As noted in the FRFA for this action, the
proportion of QS that is unblocked QS ranges from 29 percent in Area 2C
to 65 percent in Area 3A. NMFS is aware of the concerns raised in the
comment; they were discussed by the Council and discussed in the FRFA
for this action. The FRFA notes that an increase from two to three
blocks would lead to consolidation of QS, and would be likely to
increase the value of blocked QS, but may consequently decrease the
value of unblocked QS. The FRFA notes that the action might reduce the
availability of entry-level opportunities in the fishery. The
[[Page 44801]]
Council weighed these considerations against the potential benefits of
easing restrictions on the transfer of large blocks, and on helping
small vessel owners constrained by ownership of two small blocks to
make more economically viable trips.
Comment 17: The sweep up limit for QS blocks in regulatory Areas 2C
and 3A should not be increased to 5,000 pounds, particularly in light
of the proposal to increase the QS blocks a person can hold from two to
three blocks. The proposed sweep up regulation will make entry into the
halibut fishery more difficult. If the halibut sweep up limit is
increased to 5,000 pounds, at current quota prices, an ``entry level''
block of halibut would cost approximately $100,000.
Response: The block provisions of the IFQ Program created many
blocks that were quite small. The halibut IFQ regulations allow a
``sweep-up'' of small blocks that would be economically unfishable
(i.e., the value of the harvest would not exceed the costs of the
fishing trip). This allowed small QS blocks to be permanently
consolidated as long as the resulting block did not exceed a specified
limit. This limit has been 3,000 lb for halibut, based on 1996 TACs.
This final rule implements the Council's recommendation that, for Areas
2C and 3A, the sweep-up limit be increased to 5,000 lb, based on 1996
QS units.
The FRFA for this rule recognizes that the block program was
implemented in part to provide entry level opportunity in the IFQ
fisheries, and that the increase in the ``sweep-up'' limit would reduce
the numbers of small blocks available in the fishery. In this event,
blocks containing more QS units than were previously allowed likely
will cost more to purchase. Note that not all blocks would be
consolidated to the maximum size, and the amount of unblocked QS would
not be affected. The FRFA also indicates that the 3,000-lb sweep-up
limit imposed costs on some fishing operations by constraining their
growth and efficiency. The FRFA indicates large declines in the numbers
of operations in areas 2C and 3A with QS holdings less than 3,000 lb,
suggesting that holdings in this size range are not economically
viable. Moreover, the block system creates significant transaction
costs for operations with two blocks. An operation with two blocks must
sell one of its existing blocks before buying a new block. The FRFA
notes that the complexity involved in this dual transaction may provide
a substantial obstacle to growth for active fishery participants. This
final rule allows some QS holders who currently are at the threshold
limit and the block limit to incrementally increase their QS holding
without first selling one of their blocks. The Council balanced these
considerations before choosing the 5,000 lb limit as its preferred
alternative.
Comment 18: The ``fish down'' exception for category B QS in Area
2C and Southeast Outside should not be repealed. The current regulation
prevents category B QS in Area 2C and Southeast Outside from being
fished on vessels less than 60 feet length overall (LOA). The proposed
regulation will have a severe adverse financial effect on IFQ permit
holders who purchased vessels larger than 60 feet (18.3 m) LOA because
the proposed rule will make QS less available for vessels that size.
Response: This final rule makes the category B restrictions for
Area 2C halibut QS and Southeast Outside sablefish QS consistent with
restrictions in all other halibut and sablefish management areas off of
Alaska. The FRFA noted that this action would increase the
marketability and potentially the value of unblocked and large blocks
of category B QS. In this event, existing holders of category B QS in
these areas would see an increase in the value of their holdings. The
FRFA further noted that this might reduce the value of category C
halibut and sablefish QS, relatively, as the supply of QS was expanded
for operators of vessels less than or equal to 60 ft (18.3 m) LOA.
While the FRFA points to potential increased costs for large vessels,
the costs are not expected to be prohibitive. Large vessel operations
may still enter the market to purchase category B shares, and may be in
a better financial position to do so. Small vessel owners would be
unlikely to drive category B prices above category C and D QS prices
because that would increase their cost of usable QS.
Comment 19: The exception to the ``fish down'' regulation for
category B QS in Area 2C and Southeast Outside should not be repealed.
The proposed rule allows category B QS that currently must be fished on
vessels greater than 60 feet (18.3 m) LOA to be fished on smaller
vessels. The proposed regulation will decrease scientific data
available on the halibut and sablefish fisheries since vessels greater
than 60 feet must have observers onboard but vessels smaller than 60
feet do not have to have observers onboard.
Response: This rule likely will result in some QS that currently is
fished from vessels greater than 60 ft (18.3 m) LOA being fished from
vessels less than or equal to 60 ft (18.3 m) LOA and, therefore, likely
will result in somewhat less observer data. NMFS concludes, however,
that this is not a reason to disapprove this action for several
reasons. First, this rule makes the category B QS restrictions for Area
2C halibut QS and Southeast Outside sablefish QS consistent with the
category B QS restrictions in the rest of the State. Second, vessels
over 60 ft (18.3 m) LOA that harvest IFQ sablefish and halibut
generally must have observer coverage for 30 percent of their fishing
days. Therefore, these vessels do not currently generate observer data
every time they are fishing. These vessels still will harvest some IFQ
halibut and sablefish and will supply observer data from 30 percent of
their fishing days. The extent of the decrease in observer data is
uncertain but is expected to be marginal. Finally, if the Council and
NMFS perceive a harmful decline in observer data, they can propose
rules to change the requirements of observer coverage.
Comment 20: The Product Recovery Rate (PRR) for bled sablefish
should be changed from 0.98 to 1.00, based on the study, ``Product
Recovery Rates for Bled Sablefish,'' by NOAA Fisheries and Alaska
Longline Fishermen's Association (ALFA) members in Sitka. The study
supports the conclusion that the PRR for bled sablefish of 0.98 does
not reflect the difference between the weight of bled sablefish and
unbled sablefish.
Response: NMFS disagrees based on its determination that the study
does not support the proposed change in the PRR for bled sablefish from
0.98 to 1.00. NMFS concludes that the proposed change is not based upon
the best scientific information available and that adoption of the
proposed change would violate National Standard 2 of the Magnuson-
Stevens Act. Therefore, NMFS disapproves the proposed change of the PRR
for bled sablefish from 0.98 to 1.00. This means that the PRR for bled
sablefish remains at 0.98, which is the current PRR in Table 3 to Part
679.
In the preamble to the proposed rule, NMFS noted ``serious concerns
that the proposal may not be based on sufficient scientific evidence''
(71 FR 64222). NMFS specifically requested public comment on the
appropriate PRR for this product type. Public comment did not
demonstrate to NMFS that the proposed rule was based on the best
scientific information available. Therefore, NMFS cannot approve the
proposed change in the sablefish PRR.
A brief description of the study cited in the comment follows (the
full study is in Appendix 2 of the FRFA). In 2002 and 2003, NMFS staff
and ALFA
[[Page 44802]]
members conducted field experiments to determine the change in
individual sablefish weight due to blood loss from different types of
harvest methods. Fish weights were compared before and after bleeding.
Sablefish lost 2 percent of their weight when bled on deck without
flowing seawater. Sablefish lost 1.6 percent of their weight when bled
and immersed in flowing seawater. Sablefish lost 2 percent of their
weight when carefully brought aboard and bled. Sablefish lost 1.7
percent of their weight when they were gaffed aboard and bled without
flowing seawater. Sablefish lost 1 percent of their weight when gaffed
aboard, and not intentionally bled, because of blood loss at the gaff
wound. The study concluded the following statement:
The Product Recovery Rate currently applied by fishery managers
to estimate catch weight for bled sablefish (2.0 %) slightly
overestimates ``blood loss'' for fish gaffed aboard (1.7 %). The PRR
applied by fishery managers for unbled sablefish (0.0 %)
underestimates ``blood loss'' for fish gaffed aboard (1.0 %).
Estimating the actual change in weight due to blood loss for a
commercial fishing trip is difficult because it requires accounting
for storage methods and handling practices.
The question is whether this study supports the proposed change in
the PRR for bled sablefish from 0.98 to 1.00. The study does not
support that change. The study concludes that the 2.0 percent PRR for
bled sablefish ``slightly overestimates'' blood loss for bled
sablefish. The blood loss for bled sablefish was 1.7 percent. The
slight overestimation is 0.03 percent. All the percentages in the PRR
table are whole percentages (Table 3 to Part 679). Therefore, under
conventional rounding rules, 2 percent is the closest whole percentage
to the actual blood loss of 1.7 percent and is the proper PRR for bled
sablefish.
A change in the PRR for bled sablefish to 1.00 would imply that
NMFS concluded that sablefish, when bled, lose no weight. The PRR for
all other groundfish species, when bled, is 0.98 (Table 3 to Part 679).
The conclusion that a species, when bled, loses no weight is
counterintuitive and the study does not support that conclusion.
The commenters are correct that the study results do question the
accuracy of the PRR of 1.00 for unbled sablefish. The PRR for unbled
sablefish is 1.00, which means NMFS adds nothing to the weight of
unbled sablefish when debiting the IFQ account of the IFQ permit holder
that harvests sablefish that are categorized as unbled. The study
stated that gaffing was the normal method for bringing sablefish aboard
during longline fishing. Gaffed sablefish are treated as unbled. The
study found a blood loss of 1 percent for gaffed sablefish because
gaffing itself even with no intentional bleeding causes blood loss.
Hence, the study suggests that the PRR for bled sablefish is
inaccurate, relative to the PRR for unbled sablefish, because fishermen
who catch and bleed their sablefish are charged 2 percent more than
fishermen who catch and gaff their sablefish. The study does not
suggest, however, that even this ``relative inaccuracy'' is 2 percent,
because it concludes that bled sablefish weigh 1 percent less, not 2
percent less, than gaffed sablefish. Thus, even if ``relative
inaccuracy'' were a valid basis to change the PRR for bled sablefish,
it would support a change in the PRR for bled sablefish only from 0.98
to 0.99, an alternative that was rejected by the Council and not
proposed.
If the current PRRs do not accurately reflect the difference
between bled and unbled sablefish, it may be because the PRR for unbled
sablefish is inaccurate, not because the PRR for bled sablefish is
inaccurate. The problem may be that gaffed sablefish are treated as
unbled but they are, in fact, bled, albeit unintentionally. To solve
this problem, the Council could consider recommending a PRR for unbled
sablefish of 0.99 or recommending a new category for gaffed sablefish
with a PRR of 0.99. This problem cannot be solved by changing the PRR
for bled sablefish from 0.98 to 1.00, because the conclusion that a
sablefish loses no weight when bled is not based on the best available
scientific data.
Comment 21: The PRR for bled sablefish should be changed from 0.98
to 1.00 because the study, ``Product Recovery Rates for Bled
Sablefish,'' concluded that different storage methods and handling
practices could affect blood loss.
Response: NMFS agrees that the study concluded that different
storage methods and handling practices could affect blood loss. The
study concluded, ``Measuring an accurate PRR requires further studies
of the effects of storage methods (ice or refrigerated seawater) and
handling practices (gaffing, hook removal devices, and soak time),
which would be time-consuming to complete.'' The only practice that the
study analyzed and stated was normal was gaffing. The study concluded
that gaffing led to a 1 percent weight loss. Gaffed fish are treated as
unbled. As noted in response to Comment 20, this conclusion about
gaffed fish does not support changing the PRR for bled sablefish from
0.98 to 1.00. The study did not state that any other storage or
handling method was standard. The study did not analyze the effect of
any other storage or handling methods. Therefore, the caveat in the
study about different storage and handling practices does not support
changing the PRR for bled sablefish from 0.98 to 1.00.
Comment 22: A PRR of 0.98 for bled sablefish discourages bleeding
sablefish, which is bad because bleeding improves the quality of
product.
Response: The FRFA noted that in the fall of 2005, Council staff
interviewed representatives of the major sablefish processors and the
unanimous response was that they paid fishermen no price premium for
bled versus unbled sablefish. If quality is measured by the market by
what processors are willing to pay bleeding does not increase quality.
A more basic problem exists with this argument. Any PRR less than
1.00 for any fish product ``discourages'' that product because a
fisherman's IFQ account is debited more for that product than for a
whole fish product. For example, the PRR for sablefish headed and
gutted without tail is 0.50 (Table 3 to Part 679). This means that if
an IFQ permit holder reports a sablefish headed and gutted without a
tail that weighs 10 pounds, the permit holder will be counted as having
caught a sablefish that weighed 20 pounds. Although this arguably
discourages heading and gutting and removing the tail of the sablefish,
the discouragement is compensated to the extent that buyers want that
sablefish product enough to pay fishermen for the time, labor, and
expense to produce it.
The purpose of the PRR is not to encourage or discourage particular
processing activities. The purpose of the PRR is to accurately measure
the biomass of fish that is removed from the ocean. NMFS concludes that
the current PRR for bled sablefish accurately measures the biomass of
sablefish that is removed from the ocean and is based on the best
scientific information available. Because NMFS concludes that the
proposed 1.00 PRR for bled sablefish is not based on the best
scientific information available, the proposed change is not approved.
Classification
The Administrator, Alaska Region, NMFS, determined that Amendment
67 is necessary for the conservation and management of the sablefish
fishery and that it is consistent with the Magnuson-Stevens Fishery
Conservation and Management Act and other applicable laws.
The FRFA prepared for each action assesses potential impacts on
small entities for purposes of the Regulatory
[[Page 44803]]
Flexibility Act (RFA). NMFS reviewed multiple alternatives for each
individual action, including a ``no action'' alternative and a
preferred alternative, in separate FRFAs. Each FRFA describes the
potential adverse impacts on small entities, attributable to the
proposed alternatives for each action.
The objective of each action in this final rule and its legal basis
is explained in the preamble of the proposed rule (71 FR 64218) and in
this final rule. Changes in the final rule from the proposed rule are
described under ``Changes in Final Rule'' above.
NMFS defines all halibut and sablefish vessels as small businesses,
for the purpose of this analysis. In 2003, 1,338 unique vessels made
IFQ halibut landings, and 409 unique vessels made sablefish landings.
The number of small entities operating as fishing vessels in the
IFQ fisheries may be deduced from certain restrictions placed on those
vessels. The IFQ Program restricts the amount of annual IFQ that may be
landed from any individual vessel. A vessel may be used to land up to
0.5 percent of all halibut IFQ TAC, or up to 1 percent of all sablefish
TAC. In 2003, 295,050 lb (133.8 mt) of halibut constituted 0.5 percent
of all the halibut IFQ TAC and 348,635 lb (158.1 mt) of sablefish
constituted 1 percent of all the sablefish IFQ TAC. NMFS annually
publishes standard prices for halibut and sablefish that are estimates
of the ex-vessel prices received by fishermen for their harvests. NMFS
uses these prices for calculating IFQ holder cost recovery fee
liabilities. In 2003 price data suggested that the prevailing prices
were approximately $2.92 per pound for halibut and $2.36 per pound for
sablefish (68 FR 71036; December 22, 2003). In combination, the harvest
limits and prices imply maximum ex-vessel revenues of about $1.68
million for halibut and sablefish together. Although some halibut and
sablefish IFQ operations participate in other revenue generating
activities, the halibut and sablefish IFQ fisheries probably represent
the largest single source of annual gross receipts.
Based on available data, and more general vessel economic activity
information of vessels in these IFQ fisheries, no vessel subject to
these restrictions is believed to have been used to land more than $4.0
million in combined gross receipts in 2003. Therefore, all halibut and
sablefish vessels have been assumed to be ``small entities,'' for
purposes of the FRFA. However, this simplifying assumption likely
overestimates the true number of small entities, since it does not take
account of vessel affiliations. No reliable data exist on vessel
affiliation. The conclusions of the FRFA for each action are summarized
separately below.
Emergency Medical Transfers
Since the initial implementation of the halibut and sablefish IFQ
Program in 1995, individuals have submitted numerous petitions to NMFS
and the Council requesting the temporary transfer of IFQs for medical
reasons. These individuals sought medical transfers due to the
inability of IFQ holders to physically be onboard the vessel as IFQs
were fished. NMFS was previously unable to implement a medical transfer
program recommended by the Council due to legal and administrative
constraints. The approach proposed in this action would resolve the
issues arising from previous approaches.
This action could directly affect 3,349 halibut QS holders and 874
sablefish QS holders. NMFS currently does not have sufficient ownership
and affiliation information to determine the precise number of small
entities in the IFQ Program or the number that would be impacted by the
proposed action. Approximately 12 QS holders contact NMFS or the
Council each year for information about medical transfers in the IFQ
Program. However, it is not possible to estimate how many QS holders
did not contact NMFS or the Council, but would have requested a medical
transfer if it were available. This analysis assumes that all halibut
and sablefish QS operations are small for RFA purposes.
Alternative 1 was the no action or status quo alternative and would
not have any associated adverse economic impacts on directly regulated
small entities. However, the status quo would not have advanced the
objectives of this action to relieve a burden on certain types of
fishing operations. Alternative 2 would allow medical transfers, but
would require an applicant to document his/her medical emergency with
NMFS. The transfer would also require an affidavit from a licensed
medical doctor, an advanced nurse practitioner, or a primary community
health aide, that describes the medical condition affecting the
applicant and attests to the inability of the applicant to participate
in the IFQ fishery(ies) for which she or he holds IFQ permit(s), during
the IFQ season. In the case of a family member's medical emergency, the
affidavit would describe the necessity for the IFQ permit holder to
tend to an immediate family member who suffers from the medical
condition. An emergency transfer would not be granted if the individual
had been granted an emergency medical transfer in any two of the
previous five years.
Options were considered which would have been less specific about
the types of medical professionals from whom affidavits would have been
accepted, and which would have allowed transfers for persons who had
received medical transfers in three of the last six years. These
options might have provided more flexibility to small entities, however
the Council and NMFS are also concerned about the potential for abuse
of this program, and adopted more conservative measures to better
control use of the exemption. These more conservative measures advance
the Council's objective of limiting IFQ leasing and encouraging an
owner-operator fishery.
An individual must submit an Application for Emergency Medical
Transfer of IFQ to receive a medical transfer. Public reporting time
per response is estimated to average 2 hours per application. To
support the application, the QS holder must submit a written
declaration from a medical professional.
Owner Onboard Exception
The proposed rule, and the Council's preferred alternative for
Action 2, had two elements for tightening the requirements for a QS
holder to use a hired skipper rather than being onboard the vessel.
First, the proposed rule specified the documentation a QS holder had to
submit to prove the minimum 20 percent ownership interest in the vessel
that the hired skipper would use. Second, the proposed rule required
the QS holder to have the minimum ownership interest for 12 months
prior to using a hired master. As explained below, the final rule
adopts the documentation requirement but does not adopt the 12-month
provision.
Specified Documentation
The requirement for catcher vessel QS holders to be onboard the
vessel during harvest and offloading of IFQ species constitutes a key
element of the halibut and sablefish IFQ Program. The Council remains
concerned about alleged abuses of the regulatory provision allowing
vessel owners who received QS as initial allocation to hire masters to
harvest their IFQs without being onboard the vessel. Specifically, the
final rule specifies the documentation that a QS holder must submit to
prove the required ownership of the vessel that the hired master will
use. For documented vessels, the QS holder must submit an Abstract of
Title. For undocumented vessels, the QS holder must submit a State of
Alaska
[[Page 44804]]
registration or license. In both cases, other written documentation may
be required if necessary to prove the required percentage ownership
interest. The Council adopted the documentation requirement out of
concern that some vessel owners were abusing the hired skipper
provision through the use of informal, unverifiable transactions. The
Council was also responding to NMFS staff reports that, under the prior
regulation, it had been difficult to verify the minimum 20 percent
vessel ownership.
Two comments on the proposed rule addressed the documentation
issue. Comment 11 favored the provision. Comment 13 said the
requirement was unnecessary because the current regulation required
written documentation. NMFS responded to those comments under
``Comments and Responses'' and made no change in this provision as a
result of public comment.
The final rule could directly regulate a maximum of 4,200 halibut
and sablefish QS holders who hold category B, C, or D QS. NMFS
currently does not have sufficient ownership and affiliation
information to determine precisely the number of small entities in the
IFQ Program or the number that would be adversely impacted by the
present action. The FRFA assumes that all entities affected by the
hired master provision are small for RFA purposes.
The FRFA for the documentation provision reviews the status quo
(Alternative 1) and the Council's preferred alternative (Alternative 2)
which was contained in the proposed rule and is adopted in the final
rule. Alternative 1 would maintain the current 20 percent vessel
ownership requirement for catcher vessel QS holders eligible to hire a
master to harvest IFQs. Current regulations do not specify the
documents needed to demonstrate percentage of vessel ownership and,
therefore, the requirement is difficult to monitor, verify, or enforce.
Alternative 2 amends the regulations to require specific, formal
documentation of ownership of the catcher vessel before use of the
hired master exception: (1) an Abstract of Title for a documented
vessel showing the required 20 percent minimum ownership interest (or
other percentage, if applicable), and (2) a State of Alaska vessel
registration or license for undocumented vessels. In both cases, other
written documentation may be required if necessary to prove the
required percentage ownership interest. While the status quo would
place a smaller burden on directly regulated small entities, it would
not accomplish the objective of tightening the documentation procedures
so as to successfully enforce the regulations. This regulation supports
the Council's objective of encouraging an owner-operator fishery.
The projected reporting, recordkeeping, and other compliance
requirements of this provision are expected to take one hour per
document to prove vessel ownership.
12-month Ownership Requirement
The final rule did not adopt the 12-month requirement in the
Council's preferred alternative for reasons explained in Comments and
Responses. NMFS received comments from the public and from the Council
on the proposed rule. These comments raised the question of the effect
of the proposed rule on QS holders whose vessels need repair and who,
for that reason, use a hired master to fish their IFQ from a vessel
which they have not owned for 12 months. NMFS concluded that it could
not exempt those QS holders whose vessels need repairs from the 12-
month requirement because the proposed rule only excluded QS holders
whose vessels suffered ``constructive total loss.'' That term is
commonly used in insurance and a key element of a standard definition
of ``constructive total loss'' is that the insured item cannot be
economically repaired, i.e., the cost of repairing the item is worth
more than the item itself. Further, if the Council wishes to adopt a
vessel repair exemption, the Council must specify the elements of the
exemption. NMFS therefore is not adopting the 12-month requirement in
the final rule but is seeking clarification from the Council on a
possible exemption to the 12-month vessel ownership for QS holders who
resort to short-term ownership vessel agreements because their vessels
need repairs.
Sablefish Vessel Clearance Requirements
This rule adds a VMS-based vessel clearance requirement to the BSAI
sablefish fisheries. The BS and AI sablefish fixed gear sectors have
not fully harvested their TACs since the beginning of the IFQ Program.
Reasons for harvest shortfalls include predation by killer whales,
increased costs of traveling to the BSAI, and relatively low catch
rates in the BSAI that may result in harvesters fishing in the western
GOA and possible misreporting that the harvest was from the BS or AI.
The industry has expressed concern that a lack of enforcement may have
resulted in misreporting of harvests taken in the GOA as having come
from the BSAI.
There are 163 unique persons holding QS in the AI or BS and GOA. Of
these unique persons, 42 hold QS in all three areas, 34 hold QS in the
AI and GOA, and 43 hold QS in both the BS and GOA for a total of 119
directly affected small entities under Alternative 2. This analysis
assumes that all operations are small.
The analysis of vessel clearance alternatives reviews the status
quo and the preferred alternative to add either visual clearance or VMS
requirements. Alternative 1 would result in no change to the
regulations. Alternative 2 imposes a check-in/check-out requirement
and/or a VMS requirement. The preferred alternative would implement the
VMS requirement option of Alternative 2, without the check-in/check-out
option, as a disincentive to misreporting of catch areas.
The status quo alternative would not have created a clearance
requirement. An option for Alternative 2 that would have created a
visual clearance requirement for vessels that did not carry VMS was not
adopted. The status quo alternative would have created smaller costs
for operating vessels, but would not have met the monitoring and
enforcement objectives of this action, and the objective of increasing
public confidence in sablefish management. The visual clearance
alternative was not adopted because the lack of personnel, and legal
constraints on delegation of enforcement authority to private entities,
made it impracticable for enforcement purposes.
This action will create new recordkeeping requirements for fishing
operations. The operator of any vessel who fishes for sablefish in the
BSAI management area must carry a transmitting VMS while fishing until
all sablefish caught in any of these areas is landed. The operator of
the vessel also must notify NOAA Fisheries Office of Law Enforcement of
the presence of a functioning VMS unit on the vessel at least 72 hours
before fishing, and receive a VMS confirmation number.
Bled Sablefish Product Recovery Rate
Under current regulations, NMFS applies a PRR of 0.98 to all
sablefish intentionally bled upon landing. NMFS uses this rate to
calculate the equivalent round weight to be attributed to a harvest
allocation.
This action could directly affect a maximum of 874 sablefish QS
holders (this estimate is probably high because of some double-counting
of QS holders), although not all of these IFQ holders land their catch
as bled fish. At present, NMFS does not have sufficient ownership and
affiliation information to
[[Page 44805]]
determine precisely the number of small entities in the IFQ Program or
the number that would be adversely impacted by this action. This
analysis assumes that all operations are small.
The FRFA reviewed the status quo and two alternatives to change the
PRR for bled sablefish. Alternative 1 would not revise the PRR for bled
sablefish, and it would remain at 0.98. Alternative 2 would change the
PRR to 1.0 for bled sablefish, which would effectively eliminate the
PRR. Alternative 3 would change the PRR to 0.99. Alternatives 2 and 3
might have allowed some small fishing entities to increase the revenues
from their QS. The Council's preferred alternative was Alternative 2,
which was contained in the proposed rule. However, NMFS concluded that
the proposed rule, which would have changed the PRR for bled sablefish
from 0.98 to 1.00, was not based on the best scientific information
available and therefore violated National Standard 2 of the Magnuson-
Stevens Act. NMFS explains this conclusion in responses to comments 20,
21, and 22 on the proposed rule. The FRFA incorporates NMFS' responses
to these public comments and also concludes that Alternative 2 violates
National Standard 2.
No additional recordkeeping or reporting requirements are
associated with this action.
Halibut Block Program Amendments
Since implementation of the IFQ Program, the halibut fleet has
experienced large quota increases, consolidation, and changing use
patterns. Halibut QS holders have indicated that the existing block and
sweep-up restrictions are cumbersome, and changing the restrictions
could improve flexibility and efficiency in fishing operations.
This action would directly regulate holders of halibut QS blocks in
all IFQ areas. There are 3,205 persons, both individual and collective
entities, who hold at least one block of halibut QS. Eighty to ninety
percent of QS holders hold at least one block in each regulatory area
except for Area 4A. At present, NMFS does not have sufficient ownership
and affiliation information to determine precisely the number of small
entities in the IFQ Program, nor the number of directly regulated small
entities that would be adversely impacted by the present actions. This
analysis assumes that all operations are small for RFA purposes.
The FRFA reviews the status quo and four alternatives to the
existing halibut IFQ Program requirements. One alternative would
increase block holding limits, two alternatives would allow the break-
up of blocks yielding more than 20,000 lb of halibut, based on the 2004
TACs, and a fourth would increase sweep-up limits for halibut in Areas
2C and 3A.
Alternative 1 is the no action alternative and would not have any
associated adverse economic impacts on directly regulated small
entities, but would not accomplish the objectives of the action.
Alternative 2 would increase the block limits for persons holding
only blocks, and/or persons holding blocks and unblocked QS. Four
options were available. The Council chose the option that relaxed the
limits the least; under its preferred option a QS holder without
unblocked QS would be able to hold three blocks (as opposed to two
under the status quo), while a QS holder with unblocked QS would
continue to be restricted to holding one block (as under the status
quo). Other alternatives would have allowed persons without unblocked
QS to hold up to four blocks, or allowed persons with unblocked QS to
hold up to 2 or 3 blocks. QS block holders that are currently
constrained would benefit from increased operational flexibility under
an increased block size limit. This may decrease the market value of
unblocked QS in relation to blocked QS, because by relaxing the
ownership constraint on blocked QS, it would become relatively more
marketable. This would hurt small entities that currently hold it, but
benefit small entities that would like to acquire it. There are no data
available to determine whether and by how much the alternative would
change QS market value.
Alternative 3 would unblock all QS blocks yielding more than 20,000
lb of halibut based on 2004 TACs, in all regulatory areas. The Council
modified Alternative 3 by (a) limiting the preferred alternative to
only Areas 3B and 4A, because these areas contain the most large QS
blocks, and by (b) permitting the division of large blocks into new
blocks yielding 20,000 lb, plus unblocked QS. Additional flexibility in
managing QS holdings would yield greater asset liquidity to owners of
large QS blocks, allowing them to be more responsive to operational
needs and economic opportunities. The preferred alternative also may
impact the value of unblocked shares in Areas 3B and 4A by increasing
the proportion of unblocked QS available in those IFQ areas. Benefits
could accrue to holders of large QS blocks, and fishermen wishing to
make adjustments to their QS asset holdings to reflect changes in their
personal circumstances, or the broader economic environment (e.g.,
market demand, input costs). At present, the capital demands associated
with transferring very large restricted blocks is reportedly
prohibitive. The preferred alternative would contribute to alleviating
this potential barrier to the transfer of the large, restricted blocks.
The action may increase the amount of unblocked QS and decrease its
value. This would hurt small entities currently holding unblocked QS,
but may help small entities that had an interest in acquiring more.
Differential impacts on the basis of size of the regulated entity
attributable to this preferred alternative are difficult to identify,
because all are ``small'' based on criteria in the RFA.
Alternative 4 would allow large QS block holders to divide their
holding into smaller blocks, potentially increasing efficient use of
the QS holding. Data are unavailable to determine the extent to which
QS holders would be likely to take advantage of this option. Should all
large holdings be divided, the alternative may impact the market price
of block holdings.
Alternative 5 was selected as a part of the preferred alternative.
Alternative 5 would increase the halibut sweep-up levels in Areas 2C
and 3A from 3,000 lb equivalents to 5,000 lb equivalents in QS units,
based on the 1996 halibut TAC. This preferred alternative would allow
small QS block holders to incrementally increase their holdings. There
are no apparent adverse impacts on small entities.
The Council sought to provide more flexibility for fishing
operations to change and grow, and to structure themselves into viable
operations, while maintaining a balance with constraints that prevented
undue consolidation. The Council relaxed consolidation restrictions
somewhat in order to permit operations to restructure more easily, but
it did not adopt other alternatives that would have relaxed
restrictions by a greater amount because it sought to limit the extent
to which consolidation would occur. Alternative 1 was rejected because
it would not address the problem. The less restrictive options for
Alternatives 2 and 3 were rejected because of the increased scope for
consolidation. Alternative 4 was somewhat more restrictive than the
preferred version of Alternative 3 in the areas where increased
flexibility was considered to be appropriate (3B and 4A), and was thus
rejected. Alternative 5 was adopted.
No additional recordkeeping and reporting requirements are
associated with this action.
[[Page 44806]]
Halibut QS Vessel Category Amendments
Halibut fishermen in western Alaska have identified safety concerns
in Areas 3B and 4C, and problems in fully harvesting Area 4C QS,
associated with fishing in those areas on small vessels. These problems
can be alleviated, in large part, by relaxing the current restrictions
on vessel length associated with category D quota share.
The action could potentially directly regulate 243 category D
halibut QS holders in Areas 3B, 4A, 4B, and 4C. Currently, NMFS does
not have sufficient ownership and affiliation information to determine
precisely the number of entities in the IFQ Program that are ``small,''
based on the Small Business Administration guidelines, nor the number
that would be adversely impacted by the present action. This analysis
assumes that all directly regulated operations are small for RFA
purposes.
Four alternatives were considered: (1) the status quo, (2) an
alternative permitting category D QS to be fished from category C
vessels, (3) an alternative permitting D QS to be fished from category
C and B vessels, and (4) an alternative to combine C and D QS. The
preferred alternative is Alternative 2 in Areas 3B and 4C, and the
status quo in other western Alaska areas.
Alternative 1 is a no action alternative and would not have
associated adverse economic impacts on directly regulated small
entities. Alternative 1 is the preferred alternative in Areas 4A, 4B,
and 4D, because no safety or IFQ harvest concerns were raised by
industry in those areas.
Alternatives 2, 3, and 4 would allow category D QS to be fished on
larger vessels, which includes vessels less than or equal to 60 ft
(18.3 m) LOA for Alternatives 2 and 4, and vessels of any size for
Alternative 3. The proposed alternatives could address safety concerns
for small vessel operators and concerns over the ability of category D
QS holders in Area 4C to completely harvest their IFQs. Because the
proposed alternatives are likely to increase the value of category D
QS, there may be some corollary decrease in the value of category C QS,
and also category B QS in the case of Alternative 3. However, category
D QS constitutes such a small share of the aggregate halibut TAC in
Area 3B, that such a change in relative value would not be expected to
substantially influence the market for QS. There may be a somewhat
greater impact in Area 4C.
The objective of this action is to address industry concerns about
small vessel safety in the Western Alaska halibut fisheries in Areas 3B
and 4C, and concerns over low harvests of category D QS in Area 4C.
Since concerns are specific to Areas 3B and 4C, the status quo action
is appropriate for Western Alaska Areas 4A, 4B, and 4D. The status quo
alternative does not address the safety objectives in Areas 3B and 4C,
and the low harvest concerns in Area 4C, so it was not chosen.
Alternatives 2, 3, and 4 can meet these objectives. A qualitative
analysis suggests that these alternatives appear to impose similar
costs on directly regulated small entities. Alternative 2, which would
allow category D QS to be fished off of category C vessels is the
preferred alternative. Both Alternatives 2 and 3 may reduce entry level
opportunities by increasing the cost of acquiring category D QS.
Alternative 3 would allow category D QS to be fished off of vessels of
any size, while Alternative 2 maintains the less than or equal to 60 ft
(18.3 m) LOA restriction; thus Alternative 2 would preserve more of the
existing fleet structure. Alternative 4 would eliminate category D QS,
and may limit the Council's future ability to use this class of QS to
meet its programmatic objections. NMFS is not aware of any
alternatives, in addition to the alternatives considered therein, that
would more effectively meet these RFA criteria.
No additional recordkeeping and reporting requirements are
associated with this action.
Southeast Alaska QS Restriction Amendment
In the original IFQ Program for halibut and sablefish, category B
QS was permitted to be fished only on a vessel greater than 60 ft (18.3
m) LOA. In 1996 the Council adopted a regulatory change that allowed
category B QS to be fished on vessels less than or equal to 60 ft (18.3
m) LOA. At the time, certain category B QS holdings in the Southeast
Outside District sablefish and Area 2C halibut fisheries were
identified as ineligible for ``fish down,'' and IFQ derived from these
quota shares must be fished on a vessel greater than 60 ft (18.3 m)
LOA. This was intended to ensure that category B quota share would be
available to vessels 60 ft (18.3 m) LOA or greater. However, some
fishermen have recently identified this prohibition as unnecessary,
inefficient, and burdensome.
This proposed action could potentially affect 72 holders of
category B halibut QS in Area 2C, and 87 persons who hold category B
sablefish QS in the Southeast Outside District. Indirectly, the action
may affect 22 owners of vessels greater than 60 ft (18.3 m) LOA who
made landings in 2003 in the halibut fisheries in Area 2C, 40 large
vessel owners who landed sablefish in the Southeast Outside District in
2003, 825 persons who are category B, C, or D halibut QS holders in
Area 2C, and 436 persons who are category B or C sablefish QS holders
in the Southeast Outside District. Currently, NMFS does not have
sufficient ownership and affiliation information to determine precisely
the number of RFA small entities in the IFQ Program nor the number that
would be adversely impacted by the preferred alternative. For the
purposes of this RFA, this analysis assumes that all operations are
small.
The preferred alternative would allow all category B QS, in either
Area 2C for halibut or the Southeast Outside District for sablefish to
be fished on any size catcher vessel. It may have the potential to
disadvantage large (greater than 60 ft (18.3 m) LOA) vessel operations
that can only harvest category B QS, as competition for access to these
QS could be substantially broadened. It may also lead to decreases in
the prices of category C and D QS. While the status quo alternative may
have smaller adverse impacts on owners of larger vessels and of
category C and D QS, the status quo would not accomplish the objective
of the action, which is to eliminate a discriminatory provision, align
halibut and sablefish program rules in Southeast Alaska with rules
elsewhere in the state, and relieve a burden on holders of halibut and
sablefish B QS in Southeast Alaska.
No additional recordkeeping and reporting requirements are
associated with this action.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA) and which has been approved by OMB
under control number 0648-0445. Public reporting burden per response is
estimated to average 12 minutes for a VMS check-in report, 6 hours for
VMS installation, and 4 hours for VMS maintenance.
This rule also contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. Public
reporting burden per response is estimated to average 2 hours for
Application for Emergency Medical Transfer of IFQ and 4 hours for each
letter of appeal. NMFS will publish a final rule upon notification of
OMB approval and assignment of an OMB control number for this new
collection.
[[Page 44807]]
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Estimated time
includes the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed , and completing and
reviewing the collection of information.
Send comments regarding this burden estimate, or any other aspect
of this data collection, including suggestions for reducing the burden,
to NMFS (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or
fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: August 1, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 679 is amended as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
and Pub. L. 108 199, 118 Stat. 110.
0
2. In Sec. 679.1, paragraph (d)(1)(i)(B) is revised to read as
follows:
Sec. 679.1 Purpose and scope.
* * * * *
(d) * * *
(1)* * *
(i) * * *
(B) Using fixed gear in waters of the State of Alaska adjacent to
the BSAI and the GOA, provided that aboard such vessels are persons who
currently hold sablefish quota shares, sablefish IFQ permits, or
sablefish IFQ hired master permits.
* * * * *
0
3. In Sec. 679.2 add definitions in alphabetical order for ``Advanced
nurse practitioner'', ``Licensed medical doctor'', and ``Primary
community health aide'' to read as follows:
Sec. 679.2 Definitions.
* * * * *
Advanced nurse practitioner means a registered nurse authorized to
practice in any state who, because of specialized education and
experience, is certified to perform acts of medical diagnosis and the
prescription and dispensing of medical, therapeutic, or corrective
measures under regulations adopted by the state Board of Nursing.
* * * * *
Licensed medical doctor means a person who is licensed, certified,
and/or registered in accordance with applicable Federal, state, or
local laws and regulations, and is authorized to conduct the practice
of medicine as defined by the state in which the person resides.
* * * * *
Primary community health aide means a person who has completed the
first of three levels of community health aide training offered by the
Norton Sound Health Corporation at the Nome Hospital, the Kuskokwim
Community College in Bethel, the Alaska Area Native Health Service in
Anchorage, or another accredited training center.
* * * * *
0
4. In Sec. 679.4, paragraphs (a) introductory text, (a)(1)(i),
(a)(1)(ii), (d) introductory text, (d)(2), (d)(3)(i), (d)(4), (d)(5),
(d)(6)(i), (e) introductory heading, (e)(3), (e)(4), and (e)(5) are
revised to read as follows:
Sec. 679.4 Permits.
(a) Requirements. Only persons who are U.S. citizens are authorized
to receive or hold permits under this section, with the exception that
an IFQ hired master permit or a CDQ hired master permit need not be
held by a U.S. citizen.
(1) * **
----------------------------------------------------------------------------------------------------------------
Permit is in effect from
If program permit type is: issue date through the end For more information,
of: see...
----------------------------------------------------------------------------------------------------------------
(i) IFQ: .......................... .........................
(A) Registered Buyer Until next renewal cycle Paragraph (d)(3) of this
section
(B) Halibut & sablefish permits Specified fishing year Paragraph (d)(1) of this
section
(C) Halibut & sablefish hired master permits Specified fishing year Paragraph (d)(2) of this
section
(ii) CDQ Halibut .......................... .........................
(A) Halibut permit Specified fishing year Paragraph (e) of this
section
(B) Halibut hired master permit Specified fishing year Paragraph (e) of this
section
* * * * * * *
----------------------------------------------------------------------------------------------------------------
(d) IFQ permits, IFQ hired master permits, and Registered Buyer
permits. The permits described in this section are required in addition
to the permit and licensing requirements prescribed in the annual
management measures published in the Federal Register pursuant to Sec.
300.62 of this title and in the permit requirements of this section.
* * * * *
(2) IFQ hired master permit. (i) An IFQ hired master permit
authorizes the individual identified on the IFQ hired master permit to
land IFQ halibut or IFQ sablefish for debit against the specified IFQ
permit until the IFQ hired master permit expires, or is revoked,
suspended, or modified under 15 CFR part 904, or cancelled on request
of the IFQ permit holder.
(ii) An original IFQ hired master permit issued to an eligible
individual in accordance with Sec. 679.42(i) and (j) by the Regional
Administrator must be on board the vessel that harvests IFQ halibut or
IFQ sablefish at all times that such fish are retained on board by a
hired master. Except as specified in Sec. 679.42(d), an individual
that is issued an IFQ hired master permit must remain on board the
vessel used to harvest IFQ
[[Page 44808]]
halibut or IFQ sablefish with that IFQ hired master permit during the
IFQ fishing trip and at the landing site during all IFQ landings.
(iii) Each IFQ hired master permit issued by the Regional
Administrator will display an IFQ permit number and the name of the
individual authorized by the IFQ permit holder to land IFQ halibut or
IFQ sablefish for debit against the IFQ permit holder's IFQ. In
addition, IFQ hired master permits will also display the ADF&G vessel
identification number of the authorized vessel.
(3) * * *
(i) A Registered Buyer permit authorizes the person identified on
the permit to receive and make an IFQ landing by an IFQ permit holder
or IFQ hired master permit holder or to receive and make a CDQ halibut
landing by a CDQ permit holder or CDQ hired master permit holder at any
time during the fishing year for which it is issued until the
Registered Buyer permit expires, or is revoked, suspended, or modified
under 15 CFR part 904.
* * * * *
(4) Issuance. The Regional Administrator will issue IFQ permits and
IFQ hired master permits annually or at other times as needed to
accommodate transfers, revocations, appeals resolution, and other
changes in QS or IFQ holdings, and designation of masters under Sec.
679.42.
(5) Transfer. The quota shares and IFQ issued under this section
are not transferable, except as provided under Sec. 679.41. IFQ hired
master permits and Registered Buyer permits issued under this paragraph
(d) are not transferable.
(6) * * *
(i) IFQ permit and IFQ hired master permit. (A) The IFQ permit
holder must present a copy of the IFQ permit for inspection on request
of any authorized officer or Registered Buyer receiving IFQ species.
(B) The IFQ hired master permit holder must present a copy of the
IFQ permit and the original IFQ hired master permit for inspection on
request of any authorized officer or Registered Buyer receiving IFQ
species.
* * * * *
(e) Halibut CDQ permits and CDQ hired master permits. * * *
* * * * *
(3) Halibut CDQ hired master permits. An individual must have
onboard the vessel a valid halibut CDQ hired master permit issued by
the Regional Administrator before landing any CDQ halibut. Each halibut
CDQ hired master permit will identify a CDQ permit number and the
individual authorized by the CDQ group to land halibut for debit
against the CDQ group's halibut CDQ.
(4) Alteration. No person may alter, erase, mutilate, or forge a
halibut CDQ permit, hired master permit, Registered Buyer permit, or
any valid or current permit or document issued under this part. Any
such permit or document that has been intentionally altered, erased,
mutilated, or forged is invalid.
(5) Landings. A person may land CDQ halibut only if he or she has a
valid halibut CDQ hired master permit. The person(s) holding the
halibut CDQ hired master permit and the Registered buyer must comply
with the requirements of Sec. 679.5(g) and (l)(1) through (6).
* * * * *
0
5. In Sec. 679.5, paragraphs (a)(1)(i)(B) and (C); (g)(2)(iv)(A) and
(B); (l)(2)(i)(D) and (E); (l)(2)(iii)(C), (l)(2)(iii)(H), (I) and (M);
(l)(2)(iv)(B)(2); (l)(2)(iv)(D); (l)(4)(i)(E)(1) and (2);
(l)(4)(ii)(D); and (l)(5)(ii) introductory text are revised to read as
follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
(a)* * *
(1)* * *
(i)* * *
(B) IFQ halibut and sablefish. The IFQ permit holder, IFQ hired
master permit holder, or Registered Buyer must comply with the R&R
requirements provided at paragraphs (g), (k), and (l) of this section.
(C) CDQ halibut. The CDQ permit holder, CDQ hired master permit
holder, or Registered Buyer must comply with the R&R requirements
provided at paragraphs (g), (k), (l)(1) through (6), (n)(1), and (n)(2)
of this section.
* * * * *
(g) * * *
(2) * * *
(iv) * * *
(A) A person holding a valid IFQ permit, or IFQ hired master
permit, and a Registered Buyer permit may conduct a dockside sale of
IFQ halibut or IFQ sablefish with a person who has not been issued a
Registered Buyer permit after all IFQ halibut and IFQ sablefish have
been landed and reported in accordance with paragraph (l) of this
section.
(B) A person holding a valid halibut CDQ hired master permit and
Registered Buyer permit may conduct a dockside sale of CDQ halibut with
a person who has not been issued a Registered Buyer permit after all
CDQ halibut have been landed and reported in accordance with paragraph
(l) of this section.
* * * * *
(l) * * *
(2) * * *
(i) * * *
(D) Remain at landing site. Once the landing has commenced, the IFQ
permit holder, IFQ hired master permit holder, or CDQ hired master
permit holder and the harvesting vessel may not leave the landing site
until the IFQ halibut, IFQ sablefish or CDQ halibut account is properly
debited (as defined in paragraph (l)(2)(iv)(D) of this section).
(E) No movement of IFQ halibut, CDQ halibut, or IFQ sablefish. The
offloaded IFQ halibut, CDQ halibut, or IFQ sablefish may not be moved
from the landing site until the IFQ Landing Report is received by OLE,
Juneau, AK, and the IFQ permit holder's or CDQ permit holder's account
is properly debited (as defined in paragraph (l)(2)(iv)(D) of this
section).
* * * * *
(iii) * * *
(C) Name and permit number of the IFQ permit holder, IFQ hired
master permit holder, or CDQ hired master permit holder;
* * * * *
(H) ADF&G statistical area of harvest reported by the IFQ permit
holder or IFQ hired master permit holder;
(I) If ADF&G statistical area is bisected by a line dividing two
IFQ regulatory areas, the IFQ regulatory area of harvest reported by
the IFQ permit holder or IFQ hired master permit holder;
* * * * *
(M) After the Registered Buyer enters the landing data in the
Internet submission form(s) and receipts are printed, the Registered
Buyer, or his/her representative, and the IFQ permit holder, IFQ hired
master permit holder, or CDQ hired master permit holder must sign the
receipts to acknowledge the accuracy of the IFQ landing report.
(iv) * * *
(B) * * *
(2) The IFQ permit holder, IFQ hired master permit holder, or CDQ
hired master permit holder must initiate a Landing Report by logging
into the IFQ landing report system using his or her own password and
must provide identification information requested by the system.
* * * * *
(D) Properly debited landing. A properly concluded printed Internet
submission receipt or a manual landing report receipt which is sent by
facsimile from OLE to the Registered Buyer, and which is then signed by
the Registered Buyer and IFQ permit holder, IFQ hired master permit
holder, or CDQ hired master permit holder constitutes confirmation that
OLE received the landing report and that the IFQ permit
[[Page 44809]]
holder's or CDQ permit holder's account is properly debited. A copy of
each receipt must be maintained by the Registered Buyer as described in
paragraph (l) of this section.
* * * * *
(4) * * *
(i) * * *
(E) * * *
(1) A vessel operator submitting an IFQ Departure Report to
document IFQ halibut or IFQ sablefish must have one or more IFQ permit
holders or IFQ hired master permit holders on board with a combined IFQ
balance equal to or greater than all IFQ halibut and IFQ sablefish on
board the vessel.
(2) A vessel operator submitting an IFQ Departure Report to
document CDQ halibut must ensure that one or more CDQ hired master
permit holders are onboard with enough remaining halibut CDQ balance to
harvest amounts of CDQ halibut equal to or greater than all CDQ halibut
onboard.
* * * * *
(ii) * * *
(D) Halibut IFQ, halibut CDQ, sablefish IFQ, and CR crab permit
numbers of IFQ and CDQ permit holders on board;
* * * * *
(5) * * *
(ii) Record retention. The IFQ permit holder, IFQ hired master
permit holder, or CDQ hired master permit holder must retain a legible
copy of all Landing Report receipts, and the Registered Buyer must
retain a copy of all reports and receipts required by this section. All
retained records must be available for inspection by an authorized
officer:
* * * * *
0
6. In Sec. 679.7, paragraphs (a)(10)(ii), (f)(3)(i), (f)(3)(ii),
(f)(4), (f)(6)(i), (f)(6)(ii), and (f)(11) introductory text are
revised to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(a) * * *
(10) * * *
(ii) Alter, erase, or mutilate any permit or document issued under
Sec. Sec. 679.4 or 679.5.
* * * * *
(f) * * *
(3) * * *
(i) Halibut. (A) Retain halibut caught with fixed gear without a
valid IFQ permit, and if using a hired master, without an IFQ hired
master permit in the name of an individual aboard.
(B) Retain halibut caught with fixed gear without a valid CDQ
permit and without a CDQ hired master permit in the name of an
individual aboard.
(ii) Sablefish. Retain sablefish caught with fixed gear without a
valid IFQ permit, and if using a hired master, without an IFQ hired
master permit in the name of an individual aboard, unless fishing on
behalf of a CDQ group and authorized under Sec. 679.32(c).
(4) Except as provided in Sec. 679.40(d), retain IFQ or CDQ
halibut or IFQ or CDQ sablefish on a vessel in excess of the total
amount of unharvested IFQ or CDQ, applicable to the vessel category and
IFQ or CDQ regulatory area(s) in which the vessel is deploying fixed
gear, and that is currently held by all IFQ or CDQ permit holders
aboard the vessel, unless the vessel has an observer aboard under
subpart E of this part and maintains the applicable daily fishing log
prescribed in the annual management measures published in the Federal
Register pursuant to Sec. 300.62 of this title and Sec. 679.5.
* * * * *
(6) Landing--(i) IFQ permit or IFQ hired master permit. Make an IFQ
landing without an IFQ permit or IFQ hired master permit, as
appropriate, in the name of the individual making the landing.
(ii) Hired master, CDQ. Make a CDQ halibut landing without a CDQ
hired master permit listing the name of the hired master.
* * * * *
(11) Discard halibut or sablefish caught with fixed gear from any
catcher vessel when any IFQ permit holder aboard holds unused halibut
or sablefish IFQ for that vessel category and the IFQ regulatory area
in which the vessel is operating, unless:
* * * * *
0
7. In Sec. 679.23, paragraph (g)(2) is revised to read as follows:
Sec. 679.23 Seasons.
* * * * *
(g) * * *
(2) Catches of sablefish by fixed gear during other periods may be
retained up to the amounts provided for by the directed fishing
standards specified at Sec. 679.20 when made by an individual aboard
the vessel who has a valid IFQ permit and unused IFQ in the account on
which the permit was issued.
* * * * *
0
8. In Sec. 679.40, paragraphs (a)(5)(ii)(A) through (D) are revised to
read as follows:
Sec. 679.40 Sablefish and halibut QS.
* * * * *
(a) * * *
(5) * * *
(ii) * * *
(A) Category A QS and associated IFQ, which authorizes an IFQ
permit holder to harvest and process IFQ species on a vessel of any
length;
(B) Category B QS and associated IFQ, which authorizes an IFQ
permit holder to harvest IFQ species on a vessel of any length;
(C) Category C QS and associated IFQ, which authorizes an IFQ
permit holder to harvest IFQ species on a vessel less than or equal to
60 ft (18.3 m) LOA:
(D) Category D QS and associated IFQ, which authorizes an IFQ
permit holder to harvest IFQ halibut on a vessel less than or equal to
35 ft (10.7 m) LOA, except as provided in Sec. 679.42(a).
* * * * *
0
9. In Sec. 679.41, paragraphs (a)(2), (e)(3) introductory text,
(e)(3)(i), and (e)(3)(ii) are revised to read as follows:
Sec. 679.41 Transfer of quota shares and IFQ.
(a) * * *
(2) Transactions requiring IFQ permits to be issued in the name of
a hired master employed by an individual or a corporation are not
transfers of QS or IFQ.
* * * * *
(e) * * *
(3) Halibut. QS blocks for the same IFQ regulatory area and vessel
category that represent less than 3,000 lb (1.4 mt) of halibut IFQ,
based on the 1996 catch limit for halibut in a specific IFQ regulatory
area and the QS pool for that IFQ regulatory area on January 31, 1996,
may be consolidated into larger QS blocks provided that the
consolidated blocks do not represent greater than 3,000 lb (1.4 mt) of
halibut IFQ based on the preceding criteria. In Areas 2C and 3A, QS
blocks for the same IFQ regulatory area and vessel category that
represent less than 5,000 lb (2.3 mt) of halibut IFQ, based on the 1996
catch limit for halibut in a specific IFQ regulatory area and the QS
pool for that IFQ regulatory area on January 31, 1996, may be
consolidated into larger QS blocks provided that the consolidated
blocks do not represent greater than 5,000 lb (2.3 mt) of halibut IFQ
based on the preceding criteria. A consolidated block cannot be divided
and is considered a single block for purposes of use and
transferability. The maximum number of QS units that may be
consolidated into a single block in each IFQ regulatory area is as
follows:
(i) Area 2C: 33,320 QS.
(ii) Area 3A: 46,520 QS.
* * * * *
0
10. In Sec. 679.42, paragraph (a)(3) is removed; paragraphs
(a)(2)(iv), and (l) are added; and paragraphs (a)(1) introductory text,
(c)(1)(i), (d), (g), (i), and (j) are revised to read as follows:
[[Page 44810]]
Sec. 679.42 Limitations on use of QS and IFQ.
(a) * * *
(1) The QS or IFQ specified for one IFQ regulatory area must not be
used in a different IFQ regulatory area, except all or part of the QS
and IFQ specified for regulatory area 4C may be harvested in either
Area 4C or Area 4D.
* * * * *
(2) * * *
(iv) In Areas 3B and 4C, category D QS and associated IFQ
authorizes an IFQ permit holder to harvest IFQ halibut on a vessel less
than or equal to 60 ft (18.3 m) LOA.
* * * * *
(c) * * *
(1) * * *
(i) Have a valid IFQ permit or a valid IFQ hired master permit.
* * * * *
(d) Emergency waivers and medical transfers. The person authorized
to fish IFQ halibut or sablefish must be aboard the vessel during
fishing operations and must sign the IFQ landing report except as
provided in Sec. 679.41 and under the following circumstances:
(1) Emergency waiver. In the event of extreme personal emergency
during a fishing trip involving a person authorized to fish IFQ halibut
or sablefish, the requirements or paragraph (c)(1) of this section may
be waived. The waiving of these requirements under this provision shall
apply to IFQ halibut or IFQ sablefish retained on the fishing trip
during which the emergency occurred.
(2) Medical transfers. In the event of a medical condition
affecting a QS holder or an immediate family member of a QS holder that
prevents the QS holder from being able to participate in the halibut or
sablefish IFQ fisheries, a medical transfer may be approved for the IFQ
derived from the QS held by the person affected by the medical
condition.
(i) General. A medical transfer will be approved if the QS holder
demonstrates that:
(A) He or she is unable to participate in the IFQ fishery for which
he or she holds QS because of a medical condition that precludes
participation by the QS holder; or
(B) He or she is unable to participate in the IFQ fishery for which
he or she holds QS because of a medical condition involving an
immediate family member that requires the QS holder's full time
attendance.
(ii) Eligibility. To be eligible to receive a medical transfer, a
QS holder must:
(A) Possess one or more catcher vessel IFQ permits; and
(B) Not qualify for a hired master exception under paragraph (i)(1)
of this section.
(iii) Application. A QS holder may apply for a medical transfer by
submitting a medical transfer application to the Alaska Region, NMFS. A
QS holder who has received an approved medical transfer from RAM may
transfer the IFQ derived from his or her own QS to an individual
eligible to receive IFQ. A medical transfer application is available at
http://www.fakr.noaa.gov or by calling 1-800-304-4846. Completed
applications must be mailed to: Restricted Access Management Program,
NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668. A complete
application must include:
(A) The applicant's (transferor's) identity including his or her
full name, NMFS person ID, date of birth, Social Security Number or Tax
ID, permanent business mailing address, business telephone and fax
numbers, and e-mail address (if any). A temporary mailing address may
be provided, if appropriate;
(B) The recipient's (transferee's) identity including his or her
full name, NMFS person ID, date of birth, Social Security Number or Tax
ID, permanent business mailing address, business telephone and fax
numbers, and e-mail address (if any). A temporary mailing address may
be provided, if appropriate;
(C) The identification characteristics of the IFQ including whether
the transfer is for halibut or sablefish IFQ, IFQ regulatory area,
number of units, range of serial numbers for IFQ to be transferred,
actual number of IFQ pounds, transferor (seller) IFQ permit number, and
fishing year;
(D) The price per pound (including leases) and total amount paid
for the IFQ in the requested transaction, including all fees;
(E) The primary source of financing for the transfer, how the IFQ
was located, and the transferee's (buyer's) relationship to the
transferor (seller);
(F) A written declaration from a licensed medical doctor, advanced
nurse practitioner, or primary community health aide as those persons
are defined in Sec. 679.2. The declaration must include:
(1) The identity of the licensed medical doctor, advanced nurse
practitioner, or primary community health aide including his or her
full name, business telephone, permanent business mailing address
(number and street, city and state, zip code), and whether the
individual is a licensed medical doctor, advanced nurse practitioner,
or primary community health aide;
(2) A concise description of the medical condition affecting the
applicant or applicant's family member including verification that the
applicant is unable to participate in the IFQ fishery for which he or
she holds IFQ permits during the IFQ season because of the medical
condition and, for an affected family member, a description of the care
required; and
(3) The dated signature of the licensed medical doctor, advanced
nurse practitioner, or primary community health aide who conducted the
medical examination;
(G) The signatures and printed names of the transferor and
transferee, and date; and
(H) The signature, seal, and commission expiration of a notary
public.
(iv) Restrictions. (A) A medical transfer shall be valid only
during the calendar year for which the permit is issued;
(B) A medical transfer will be issued only for the IFQ derived from
the QS held by the applicant;
(C) NMFS will not approve a medical transfer if the applicant has
received a medical transfer in any 2 of the previous 5 years for the
same medical condition.
(v) Medical transfer evaluations and appeals--(A) Initial
evaluation. The Regional Administrator will evaluate an application for
a medical transfer submitted in accordance with paragraphs (d)(2)(iii)
and (d)(2)(iv) of this section. An applicant who fails to submit the
information specified in the application for a medical transfer will be
provided a reasonable opportunity to submit the specified information
or submit a revised application.
(B) Initial administrative determinations (IAD). The Regional
Administrator will prepare and send an IAD to the applicant if the
Regional Administrator determines that the application provided by the
applicant is deficient or if the applicant fails to submit the
specified information or a revised application. The IAD will indicate
the deficiencies in the application, including any deficiencies with
the information on the revised application. An applicant who receives
an IAD may appeal under the appeals procedures set out at Sec. 679.43.
* * * * *
(g) Limitations on QS blocks--(1) Number of blocks per species. No
person, individually or collectively, may hold more than two blocks of
sablefish or three blocks of halibut in any IFQ regulatory area,
except:
(i) A person, individually or collectively, who holds unblocked QS
[[Page 44811]]
for a species in an IFQ regulatory area, may hold only one QS block for
that species in that regulatory area; and
(ii) A CQE may hold no more than ten blocks of halibut QS in any
IFQ regulatory area and no more than five blocks of sablefish QS in any
IFQ regulatory area on behalf of any eligible community.
(2) Action by the Regional Administrator in Areas 3B and 4A. In
Areas 3B and 4A, the Regional Administrator shall:
(i) Identify any halibut blocks that result in an allocation of
more than 20,000 lb (9.1) mt of halibut IFQ, based on the 2004 TAC for
fixed gear halibut in those areas and the QS pools for those areas as
of January 31, 2004; and
(ii) Divide those halibut blocks into one block of 20,000 lb (9.1
mt) and the remainder unblocked, based on the 2004 TAC for fixed gear
halibut in those areas and the QS pools for those areas as of January
31, 2004.
(3) Transfer of QS blocks. Notwithstanding paragraph (g)(1)(i) of
this section, a person who holds more than one block of halibut QS and
unblocked halibut QS as a result of the Regional Administrator's action
under paragraph (g)(2) of this section may transfer unblocked QS until
such time as that person transfers a halibut QS block to another
person.
(4) Holding or to hold blocks of QS. For purposes of this section,
``holding'' or ``to hold'' blocks of QS means being registered by NMFS
as the person who received QS by initial assignment or approved
transfer.
* * * * *
(i) Use of IFQ resulting from QS assigned to vessel category B, C,
or D by individuals. In addition to the requirements of paragraph (c)
of this section, IFQ permits issued for IFQ resulting from QS assigned
to vessel category B, C, or D must be used only by the individual who
holds the QS from which the associated IFQ is derived, except as
provided in paragraph (i)(1) of this section.
(1) An individual who received an initial allocation of QS assigned
to category B, C, or D does not have to be aboard the vessel on which
his or her IFQ is being fished or to sign IFQ landing reports if that
individual:
(i) For a documented vessel, owns a minimum 20-percent interest in
the vessel as shown by the U.S. Abstract of Title issued by the U.S.
Coast Guard that lists the individual as an owner and, if necessary to
prove the required percentage ownership, other written documentation;
(ii) For an undocumented vessel, owns a minimum 20-percent interest
in the vessel as shown by a State of Alaska vessel license or
registration that lists the individual as an owner and, if necessary to
show the required percentage ownership interest, other written
documentation; and
(iii) Is represented on the vessel by a hired master employed by
that individual and permitted in accordance with Sec. 679.4(d)(2).
(2) Paragraph (i)(1) of this section does not apply to any
individual who received an initial allocation of QS assigned to
category B, C, or D and who, prior to April 17, 1997, employed a master
to fish any of the IFQ issued to that individual, provided the
individual continues to own the vessel from which the IFQ is being
fished at no lesser percentage of ownership interest than that held on
April 17, 1997, and provided that this individual has not acquired
additional QS through transfer after September 23, 1997.
(3) Paragraph (i)(1) of this section does not apply to individuals
who received an initial allocation of QS assigned to vessel category B,
C, or D for halibut in IFQ regulatory Area 2C or for sablefish QS in
the IFQ regulatory area east of 140[deg] W. long., and this exemption
is not transferable.
(4) The exemption provided in paragraph (i)(1) of this section may
be exercised by an individual on a vessel owned by a corporation,
partnership, or other entity in which the individual is a shareholder,
partner, or member, provided that the individual maintains a minimum
20-percent interest in the vessel owned by the corporation,
partnership, or other entity. For purposes of this paragraph, interest
in a vessel is determined as the percentage ownership of a corporation,
partnership, or other entity by that individual multiplied by the
percentage of ownership of the vessel by the corporation, partnership,
or other entity.
(5) IFQ derived from QS held by a CQE must be used only by the
individual whose IFQ permit account contains the resulting IFQ.
(j) Use of IFQ resulting from QS assigned to vessel category B, C,
or D by corporations and partnerships. (1) Except as provided in
paragraph (j)(7) of this section, a corporation, partnership or other
entity that received an initial allocation of QS assigned to category
B, C, or D may fish the IFQ resulting from that QS and any additional
QS acquired within the limitations of this section from a vessel if
that corporation, partnership or other entity:
(i) For a documented vessel, owns a minimum 20-percent interest in
the vessel as shown by the U.S. Abstract of Title issued by the U.S.
Coast Guard that lists the corporation, partnership or other entity as
an owner and, if necessary to prove the required percentage ownership,
other written documentation;
(ii) For an undocumented vessel, owns a minimum 20-percent interest
in the vessel as shown by a State of Alaska vessel license or
registration that lists the corporation, partnership or other entity as
an owner and, if necessary to show the required percentage ownership
interest, other written documentation; and
(iii) Is represented on the vessel by a hired master employed by
that individual and permitted in accordance with Sec. 679.4(d)(2).
(2) The provision of paragraph (j)(1) of this section is not
transferable and does not apply to QS assigned to vessel category B, C,
or D for halibut in IFQ regulatory Area 2C or for sablefish in the IFQ
regulatory area east of 140[deg] W. long. that is transferred to a
corporation or partnership. Such transfers of additional QS within
these areas must be to an individual pursuant to Sec. 679.41(c) and be
used pursuant to paragraphs (c) and (i) of this section.
(3) A corporation or partnership, except for a publicly held
corporation, that receives an initial allocation of QS assigned to
vessel category B, C, or D loses the exemption provided under this
paragraph (j) on the effective date of a change in the corporation or
partnership from that which existed at the time of initial allocation.
(4) For purposes of this paragraph (j), ``a change'' means:
(i) For corporations and partnerships, the addition of any new
shareholder(s) or partner(s), except that a court appointed trustee to
act on behalf of a shareholder or partner who becomes incapacitated is
not a change in the corporation or partnership; or
(ii) For estates, the final or summary distribution of the estate.
(5) The Regional Administrator must be notified of a change in the
corporation, partnership, or other entity as defined in this paragraph
(j) within 15 days of the effective date of the change. The effective
date of change, for purposes of this paragraph (j), is the date on
which the new shareholder(s) or partner(s) may realize any corporate
liabilities or benefits of the corporation or partnership or, for
estates, the date of the determination of a legal heir to the estate,
or the date of the order for distribution of the estate.
(6) QS assigned to vessel category B, C, or D and IFQ resulting
from that QS held in the name of a corporation, partnership, or other
entity that changes, as defined in this paragraph (j),
[[Page 44812]]
must be transferred to an individual, as prescribed in Sec. 679.41,
before it may be used at any time after the effective date of the
change.
(7) A corporation or a partnership that received an initial
allocation of QS assigned to category B, C, or D and that, prior to
April 17, 1997, employed a master to fish any of the IFQ issued to that
corporation or partnership may continue to employ a master to fish its
IFQ on a vessel owned by the corporation or partnership provided that
the corporation or partnership continues to own the vessel at no lesser
percentage of ownership interest than that held on April 17, 1997, and
provided that corporation or partnership did not acquire additional QS
through transfer after September 23, 1997.
(8) A corporation, partnership, or other entity, except for a
publicly held corporation, that receives an initial allocation of QS
assigned to category B, C, or D must provide annual updates to the
Regional Administrator identifying all current shareholders or partners
and affirming the entity's continuing existence as a corporation or
partnership.
(9) The exemption provided in this paragraph (j) may be exercised
by a corporation, partnership, or other entity on a vessel owned by a
person who is a shareholder in the corporation, partnership, or other
entity, provided that the corporation, partnership, or other entity
maintains a minimum of 20-percent interest in the vessel. For purposes
of this paragraph (j), interest in a vessel is determined as the
percentage of ownership in the corporation, partnership, or other
entity by that person who is a shareholder in the corporation,
partnership, or other entity, multiplied by the percentage of ownership
in the vessel by that person who is a shareholder in the corporation,
partnership, or other entity.
* * * * *
(l) Sablefish vessel clearance requirements--(1) General. Any
vessel operator who fishes for sablefish in the Bering Sea or Aleutian
Islands IFQ regulatory areas must possess a transmitting VMS
transmitter while fishing for sablefish.
(2) VMS requirements. (i) The operator of the vessel must comply
with Sec. 679.28(f)(3), (f)(4), and (f)(5); and
(ii) The operator of the vessel must contact NMFS at 800-304-4846
(option 1) between 0600 and 0000 A.l.t. and receive a VMS confirmation
number at least 72 hours prior to fishing for sablefish in the Bering
Sea or Aleutian Islands IFQ regulatory areas.
[FR Doc. E7-15341 Filed 8-