[Federal Register: April 30, 2004 (Volume 69, Number 84)]
[Rules and Regulations]
[Page 23681-23694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap04-15]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 030922237-4111-02; I.D. 082503D]
RIN 0648-AQ98
Fisheries of the Exclusive Economic Zone Off Alaska; Individual
Fishing Quota Program; Community Purchase
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 66 to the
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP), and
an amendment to the Pacific halibut (halibut) commercial fishery
regulations for waters in and off of Alaska. Amendment 66 to the FMP
and the regulatory amendment modify the Individual Fishing Quota (IFQ)
Program by revising the eligibility criteria to receive halibut and
sablefish IFQ and quota share (QS) by transfer to allow eligible
communities in the Gulf of Alaska (GOA) to establish non-profit
entities to purchase and hold QS for lease to, and use by, community
residents as defined by specific elements of the proposed action. This
action improves the effectiveness of the IFQ Program by providing
additional opportunities for residents of fishery dependent communities
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 June 1, 2004, except for Sec. Sec. 679.5(l)(8),
679.41(d)(1), (l)(3), and (l)(4), which will be effective after
approval of the collection-of-information request submitted to Office
of Management and Budget (OMB) under OMB approval number 0648-0272 and
notification of the effective date is published in the Federal
Register.
ADDRESSES: Copies of Amendment 66 and the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) prepared for the proposed rule and final Environmental
Assessment/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (EA/RIR/FRFA) prepared for the final rule may be obtained from
the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn:
Lori Durall, (907) 586-7247.
FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or email
at glenn.merrill@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
The groundfish fisheries in the Exclusive Economic Zone of the GOA
are managed under the FMP. The FMP was developed by the North Pacific
Fishery Management Council (Council) under the Magnuson-Stevens Act
(Pub. L. 94-265, 16 U.S.C. 1801). The FMP was approved by the Secretary
of Commerce and became effective in 1978. Fishing for halibut
(Hippoglossus stenolepis) is managed by the International Pacific
Halibut Commission (IPHC) and the Council under the Halibut Act. The
IFQ Program, a limited access management system for the fixed gear
halibut and sablefish (Anoplopoma fimbria) fisheries off Alaska, was
recommended by the Council in 1992 and approved by NMFS in January
1993. Initial implementing rules were published on November 9, 1993 (58
FR 59375). Fishing under the IFQ Program began on March 15, 1995. The
IFQ Program limits access to the halibut and sablefish fisheries to
those persons holding QS in specific management areas. The IFQ Program
for the sablefish fishery is implemented by the FMP and Federal
regulations at 50 CFR part 679 under authority of the Magnuson-Stevens
Act. The IFQ Program for the halibut fishery is implemented by Federal
regulations at 50 CFR part 679 under the authority of the Halibut Act.
The IFQ Program originally was designed to resolve conservation and
management problems that are endemic to open access fisheries. The
background issues leading to the Council's initial action recommending
the adoption of IFQs are described in the preamble to the proposed rule
establishing the IFQ Program published December 3, 1992 (57 FR 57130).
A central concern of the Council in developing the IFQ Program was
that QS, from which IFQ is derived, would become increasingly held by
corporate entities instead of independent fishermen who typically own
and operate their own vessels. To prevent this outcome, the Council
designed the IFQ Program such that QS could, in most cases, be held
only by individuals or natural persons, and not by corporate entities.
The Council provided limited exemptions to this basic approach to
accommodate existing corporate ownership of vessels at the time of
implementation and to recognize the participation by corporately owned
freezer vessels. However, the overall intent of the IFQ Program was for
catcher vessel QS eventually to be held only by individual fishermen.
The IFQ Program is designed to limit corporate holding of QS and
increase holdings of QS by individual fishermen as corporate owners
divest themselves of QS. This provision is implemented through the QS
and IFQ transfer regulations at 50 CFR 679.41.
This final rule revises the existing IFQ Program regulations and
policy to explicitly allow a new group of non-profit entities to hold
QS on behalf of residents of specific rural communities located
adjacent to the coast of the GOA. This change would allow a non-profit
corporate entity that meets specific criteria to receive transferred
halibut or sablefish QS on behalf of an eligible community and to lease
the resulting IFQ to fishermen who are residents of
[[Page 23682]]
the eligible community. This change is intended to provide additional
opportunities to these fishermen, and may indirectly address concerns
about the economic viability of those communities. The objectives for
this action are described in detail in the proposed rule, which was
published on October 16, 2003 (68 FR 59564), and are summarized here.
Since initial issuance of QS, and as a result of voluntary
transfers of QS, the amount of QS and the number of resident QS holders
has declined substantially in most of the GOA communities affected by
this action. This trend may have had an effect on employment and may
have reduced the diversity of fisheries to which fishermen in rural
communities have access. The ability of fishermen in small rural
communities to purchase QS or maintain existing QS may be limited by a
variety of factors unique to those communities. Although the specific
causes for decreasing QS holdings in rural communities may vary, the
net effect is overall lower participation by residents of these
communities in the halibut and sablefish IFQ fisheries.
In June 2000, representatives of several GOA communities presented
the Council with a proposal to allow communities to purchase QS. The
Council approved several alternatives for analysis in June 2001,
reviewed an initial analysis in December 2001, and took final action in
April 2002. The problem statement adopted by the Council in June 2001
recognized the fact that a number of small coastal communities ``are
struggling to remain economically viable.'' The Council stated that
``[a]llowing qualifying communities to purchase halibut and sablefish
quota share for use by community residents will help minimize adverse
economic impacts on these small, remote, coastal communities in
Southeast and Southcentral Alaska, and help provide for the sustained
participation of these communities in the halibut and sablefish IFQ
fisheries.''
A Notice of Availability of the FMP amendment was published on
September 2, 2003 (68 FR 52173) inviting comments on the FMP amendment
through November 3, 2003. One written comment was received that
specifically addressed the FMP amendment. This comment is addressed in
the Response to Comment section of this rule. A proposed rule to
implement the Council's recommendation was published on October 16,
2003 (68 FR 59564) inviting comments on the proposed rule through
December 1, 2003. Twenty-two written comments were received addressing
the proposed rule (see Response to Comments). The Secretary of Commerce
approved the FMP amendment on December 3, 2003.
This action addresses these concerns by modifying the IFQ Program
to allow non-profit entities that represent small rural communities in
the GOA with a historic participation in the halibut and sablefish
fisheries to hold QS. The Council's recommendations also reflect the
most recent amendments to the Magnuson-Stevens Act, and IFQ policy
recommendations by the National Research Council.
The Council considered the range of comments from the public, NMFS,
and the State of Alaska (State), and incorporated various suggestions
in developing the policy implemented by this rule. The basic provisions
of this rule are described in the preamble to the proposed rule
published October 16, 2003 (68 FR 59564). Key provisions are summarized
here.
Community QS Provisions
1. Community Quota Entities
Community quota entities (CQEs) are non-profit entities
incorporated under the laws of the State, or tribal regulations in the
case of one of the communities, to represent eligible communities. The
CQEs obtain QS by transfer and hold the QS and lease the resulting
annual IFQ to individual community residents. Unless otherwise
specified, the restrictions that apply to any current QS holder apply
to a CQE. CQEs, however, are subject to additional regulatory
requirements beyond those applying to existing QS holders.
A CQE could represent more than one eligible community. However, no
community can be represented by more than one CQE. This provision
minimizes confusion and ensures effective and efficient administration
of the program.
To be considered eligible to hold QS on behalf of a community, a
CQE must have been incorporated after April 10, 2002, the date of final
Council action. The Council stated that the purpose of designating a
new non-profit entity to hold QS is that existing administrative
structures such as municipal governments, tribal councils, or other
community organizations may be focused on other priorities.
The Council also recommended that a non-profit organization provide
proof of support from the community that it is seeking to represent.
This support must be demonstrated in the application by a non-profit
organization to become eligible as a CQE. The specific mechanism for
the community to demonstrate its support for a CQE is described in the
Administrative Oversight section of this preamble.
Once an application to become a CQE has been approved, then that
CQE is eligible to hold and receive QS, and lease IFQ to eligible
community residents under the mechanisms established by this rule. If a
CQE does not remain in compliance with the regulations applying to CQEs
or IFQ holders generally, then NMFS can initiate administrative
proceedings to deny the transfer of QS or IFQ to or from the CQE. As
with other administrative determinations under the IFQ Program, any
such determination could be appealed under the procedures set forth in
regulations (50 CFR 679.43). The Council recommended regulatory
measures, described below, as a means to monitor the ability of the
non-profit entities to meet the goals of distributing IFQ among
residents in these GOA communities.
2. Eligible Communities
Gulf of Alaska communities eligible to participate in this program
must meet all the following criteria: (a) have a population of less
than 1,500 persons based on the 2000 United States Census; (b) have
direct saltwater access; (c) lack direct road access to communities
with a population greater than 1,500 persons; (d) have historic
participation in the halibut and sablefish fisheries; and (e) be
specifically designated on a list adopted by the Council and included
in this rule (see Table 21 to part 679).
If a community appears to meet the eligibility criteria but is not
specifically designated on the list of communities adopted by the
Council, then that community must apply directly to the Council to be
included. In this event, the Council may modify the list of eligible
communities adopted by the Council through a regulatory amendment.
Under this action, a total of 42 communities in the GOA qualify as
eligible to purchase QS. These eligible communities may designate a new
non-profit entity to hold QS on behalf of that community.
(a) Population of Less Than 1,500 Persons
The 2000 United States Census was chosen as the standard for
measuring total population because it is considered to be a more
accurate measure of population than annual estimates conducted by the
State. Additionally, at the time that the Council took final action to
modify the IFQ Program to accommodate communities, the 2000 Census was
the best available demographic data.
[[Page 23683]]
This proposed rule establishes that a community with not less than
20 persons and not more than 1,500 persons that is defined as a Census
Designated Place under the U.S. Census fulfills the requirement for the
definition of a community for the purposes of this program. If
communities seek inclusion as an eligible community in the future, then
the Council and NMFS would review those communities using the
definitions of a community as defined by this rule.
(b) Have Direct Saltwater Access
A community would be defined as adjacent to saltwater if it is
located on the GOA coast of the North Pacific Ocean.
(c) Lack of Direct Road Access
The Council recommended limiting eligibility to communities without
direct surface road access to communities larger than 1,500 persons
because such communities may lack access to markets for fishery
products and could be disadvantaged relative to other communities with
better transportation infrastructure. Communities that are served by
the Alaska Marine Highway System are not considered to have surface
road access and would be considered to lack surface road access for
purposes of this action.
(d) Have Historic Participation in the Halibut and Sablefish
Fisheries
Historic participation is defined as communities for which a
resident has recorded a commercial landing of either halibut or
sablefish between 1980-2000 according to Commercial Fisheries Entry
Commission (CFEC) data for permit and fishing activity. The year 1980
was chosen because it represents the first year of widely collected and
reliable data from the CFEC, and the year 2000 was chosen because it
was the last year of data available prior to the Council's decision to
recommend this program.
(e) Be Specifically Designated on a List Adopted by the Council
The Council adopted a specific list of eligible communities to
limit the entry of new communities into the Community QS Program (see
Table 21 to part 679). Any change to the list of eligible communities
requires Council action to recommend such a change and Secretarial
approval of the change.
3. Use Caps for Individual Communities
Each eligible community as represented by a CQE is subject to the
same use limitations on QS and IFQ currently established for QS holders
as described under 50 CFR 679.42(e) for sablefish and 50 CFR 679.42(f)
for halibut. Therefore, for each community it represents, a CQE is
limited to using:
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No more than: 599,799 units of halibut QS....................... in IFQ regulatory area 2C
No more than: 1,502,823 units of halibut QS combined............ in IFQ regulatory areas 2C, 3A, and 3B
No more than: 688,485 sablefish QS units........................ in the IFQ regulatory Area East of 140[deg] W.
long. (Southeast Outside District)
No more than 3,229,721 sablefish QS units combined.............. in the Southeast Outside District West
Yakutat, Central Gulf Regulatory Area, and
Western Gulf Regulatory Area
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A CQE representing an eligible community located within Areas 3A or
3B is prohibited from purchasing QS in Area 2C (Southeast Alaska) on
behalf of that community. The Council noted that 21 of the 42
communities eligible to participate in this program are located in Area
2C. Allowing CQEs in Areas 3A and 3B to purchase QS in Area 2C would
increase the competition of QS and could adversely affect the price and
availability of QS among Area 2C communities.
Likewise, a CQE representing an eligible community within Area 2C
is prohibited from purchasing and using QS in Area 3B (Western GOA) on
behalf of that community. This limitation applies because residents
from communities located in Area 2C traditionally did not fish in Area
3B.
Although the use of halibut QS is limited to those areas that are
adjacent to the eligible communities, a similar provision does not
apply to sablefish. The sablefish fishery occurs in deeper waters than
much of the halibut fishery and typically requires larger vessels that
can travel longer distances for harvesting fish.
This limit provides an adequate opportunity for communities to
purchase and hold sufficient QS for leasing the resulting IFQ among
community residents. This level is not to be so restrictive as to
discourage communities from purchasing and holding quota.
4. Cumulative Use Caps for All Communities
Communities represented by CQEs cumulatively are limited to holding
a maximum of 3 percent of the total halibut QS and 3 percent of the
total sablefish QS in each IFQ regulatory area in the first year after
implementation of this program. In each subsequent year, the percentage
is increased by an additional 3 percent until, after 7 years, a maximum
of 21 percent of the total halibut QS, and 21 percent of the total
sablefish QS could be held in each IFQ regulatory area in which CQEs
are eligible to hold QS.
5. Transfer and Use Restrictions
(a) Block Limits
The purchase of blocked QS by CQEs would be restricted. The number
of blocks that can be held by a person is limited under the IFQ
Program. These limits were established to prevent the consolidation of
blocked QS and to ensure that smaller aggregate units would be
available on the market. Blocked QS typically is less expensive and
more attractive to new-entrants.
This rule modifies the consolidation limits for blocked QS for
communities represented by CQEs. Each community represented by a CQE is
limited to holding, at any point in time, a maximum of 10 blocks of
halibut QS and 5 blocks of sablefish QS in each IFQ regulatory area for
halibut and sablefish. The CQE could not subdivide blocked QS.
To accommodate the interests of prospective individual new
entrants, this rule prohibits CQEs from purchasing:
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Halibut QS blocks less than or in Area 2C
equal to 19,992 units (e.g., 2,850
lb (1,292.8 kg) of IFQ in 2003)...
Halibut QS blocks less than or in Area 3A
equal to 27,912 units (e.g., 3,416
lb (1,549.5 kg). of IFQ in 2003)..
Sablefish QS blocks less than or in the Southeast Outside District
equal to 33,270 units (e.g., 4,003
lb (1,815.8 kg) of IFQ in 2003)...
Sablefish QS blocks less than or in the West Yakutat District
equal to 43,390 units (e.g., 3,638
lb (1,650.2 kg) of IFQ in 2003)...
Sablefish QS blocks less than or in the Central GOA regulatory area
equal to 46,055 units (e.g., 4,684
lb (2,124.7 kg) of IFQ in 2003)...
Sablefish QS blocks less than or in the Western GOA regulatory area
equal to 48,410 units (e.g., 6,090
lb (2,762.4 kg) of IFQ in 2003....
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[[Page 23684]]
These QS limits are specified in 50 CFR 679.41(e) as the ``sweep
up'' limit, or the number of QS units initially issued as blocks that
could be combined to form a single block.
CQEs are not eligible to purchase or hold these smaller ``sweep-
up'' blocks because these smaller QS blocks typically are purchased by
individuals entering the IFQ fisheries. This measure minimizes a
potentially unfair competition in the QS market between CQEs and
individuals for these small QS blocks. Similar restrictions on QS in
the halibut fishery for Area 3B do not exist because fewer ``sweep-up''
blocks exist in Area 3B and few new entrants in Area 3B have sought
these ``sweep-up'' blocks.
(b) Transfer and IFQ Leasing
CQEs can only receive and use halibut QS assigned to vessel
category B (greater than 60 feet length overall) and vessel category C
(greater than 35 feet and less than or equal to 60 feet length overall)
in Areas 2C and 3A.
This provision prohibits CQEs from holding QS assigned to vessel
category D (less than or equal to 35 feet (10.7 m) length overall) in
Areas 2C and 3A.
This rule does not prohibit CQEs from holding D category halibut QS
in Area 3B. A relatively small amount of D category QS exists in Area
3B, and traditionally few prospective buyers exist for this category of
QS. Existing D category QS holders in Area 3B indicated that allowing
CQEs to purchase D category QS in Area 3B would increase the
marketability of their QS.
This rule does not establish catcher vessel category restrictions
for CQEs holding sablefish QS. Only B and C vessel categories exist for
sablefish QS and sablefish are typically harvested from larger vessels.
So that the annual IFQ derived from the QS held on behalf of a
community can be fished, a CQE will be allowed to lease (i.e., transfer
the annual IFQ) to one or more residents of the community, or
communities, it represents. Each IFQ lease must be made on annual
basis, as is currently the requirement in existing regulations. IFQ so
transferred can be fished from a vessel of any size regardless of the
QS vessel category from which the IFQ was derived. This provision
applies only while the QS is held by the CQE. The vessel category
requirements for use of the QS will be applied once again after the QS
is transferred from a CQE to a qualified recipient that is not a CQE.
This provision facilitates the use of the IFQ on the wide range of
vessel types that is present in many rural communities.
The amount of IFQ that may be leased annually to an eligible
community resident is limited so that no such lessee can hold IFQ
permits authorizing the harvest of more than 50,000 lb (22.7 mt) of
halibut and no more than 50,000 lb (22.7 mt) of sablefish IFQ,
inclusive of any IFQ derived from any source.
This limitation ensures a broad distribution of IFQ among community
residents and limits the amount of IFQ that may be leased to those
residents who already hold QS or lease IFQ from another source.
Similarly, during any fishing year, no vessel on which IFQ leased
from the community QS program is fished can harvest an amount of IFQ
greater than 50,000 lb (22.7 mt) of halibut and greater than 50,000 lb
(22.7 mt) of sablefish, inclusive of all IFQ fished aboard that vessel.
This limitation on the amount of IFQ that can be fished on any one
vessel using IFQ from community-held QS encourages the use of a broad
distribution of community-held IFQ on vessels that may otherwise have
limited or no participation in the IFQ Program.
Only permanent residents of the community represented by the CQE
are eligible to lease IFQ derived from community-held QS. This
provision explicitly ties the potential benefits of QS held by a CQE on
behalf of a community to the residents of that community. A resident
who wishes to lease IFQ is required to affirm that he or she maintains
a permanent domicile in that specific community and is qualified to
receive QS and IFQ by transfer under the existing regulations (i.e.,
that he or she holds a Transfer Eligibility Certificate issued by
NMFS).
For purposes of this program, an eligible resident is an individual
that affirms that he or she has maintained a domicile in the community
from which the IFQ is leased for 12 consecutive months immediately
preceding the time when the assertion of residence is made, and has not
claimed residency in another community, state, territory, or country
for that period.
An individual who receives IFQ derived from QS held by a CQE may
not designate a skipper to fish the community IFQ.
Individuals who hold leases of IFQ from communities are considered
to be IFQ permit holders and are subject to the regulations that govern
other permit holders unless specified otherwise in this rule. This
includes the payment of annual fees as required under 50 CFR 679.45.
(c) Sale Restrictions
To avoid certain restrictions, a CQE may not sell its QS unless
that sale will generate revenues to improve, sustain, or expand the
opportunities for community residents to participate in the IFQ halibut
and sablefish fisheries. NMFS will approve the transfer of QS held by a
CQE on behalf of a community only if the community for which the CQE
holds the QS authorizes that transfer. This authorization must be in
the form of a signature on the Approval of Transfer form by an
authorized representative of the governing body of the community. The
purpose of this authorization is to ensure that the community is fully
aware of the transfer because certain restrictions apply to future
transfers if the transfer of QS is for a reason other than to sustain,
improve, or expand the program (i.e., the CQE would be prohibited from
holding QS on behalf of that community for a period of three years and
the CQE must divest itself of all QS held on behalf of that community).
This rule allows a CQE to transfer QS to dissolve the CQE; or as a
result of a court order, operation of law, or as part of a security
agreement. These provisions account for those cases in which a CQE is
no longer capable of representing an eligible community and seeks
either: (1) to divest itself of QS holdings voluntarily in order to
provide an opportunity for another non-profit to form and seek approval
as a CQE for a community or (2) to meet the legal requirements
requiring divestiture of QS. These forms of transfers are authorized
under the existing IFQ Program.
If subsequent information is made available to NMFS that confirms
that the transfer of QS is made for reasons other than to sustain,
improve, or expand the opportunities for community residents, then NMFS
will withhold annual IFQ permits on any remaining QS held by the CQE on
behalf of that community and will disqualify that CQE from holding QS
on behalf of that community for three calendar years following the year
in which final agency action adopting that determination is made.
NMFS would not impose this restriction until the CQE had received
full administrative due process, including notice of the potential
action and the opportunity to be heard. An initial administrative
determination (IAD) proposing an adverse action would only become final
agency action if the CQE failed to appeal the IAD within 60 days, or
upon the effective date of the decision issued by the Office of
Administrative Appeals. The
[[Page 23685]]
procedures for appeal are provided at 50 CFR 679.43.
The 3-year restriction is intended to discourage speculating in the
QS market or using potential assets to fund other unrelated projects,
and encourage the long-term participation of fishery dependent
communities in the IFQ Program.
6. Joint and Several Liability for Violations
Both the CQE and the individual fisherman to whom the CQE leases
its IFQ will be considered jointly and severally liable for any IFQ
fishery violation committed while the individual fisherman is in the
process of fishing the leased IFQ. This joint and several liability is
analogous to the joint and several liability currently imposed on IFQ
permit holders and any hired skippers fishing the permit holders' IFQ.
7. Administrative Oversight
Implementing this proposal requires that NMFS: (1) review
applications of eligibility for non-profit entities seeking to be
qualified as a CQE for a particular community and certify eligible CQEs
and (2) review an annual report detailing the use of QS and IFQ by the
CQE and community residents. If a CQE fails to provide a completed
annual report to NMFS for each community that it represents, then that
CQE will be deemed ineligible to use the IFQ resulting from that QS on
behalf of that community until a complete annual report is received.
Before becoming a Final Agency Action, any such determination by NMFS
may be appealed through the administrative appeals process described
under the IFQ Program (50 CFR 679.43).
Each non-profit entity applying to become a CQE must provide NMFS
with the following:
1. Its articles of incorporation as a non-profit entity under the
laws of the State;
2. A statement designating the community, or communities,
represented by that CQE;
3. Management organization;
4. A detailed statement describing the procedures that will be used
to determine the distribution of IFQ to residents of each community
represented by that CQE; and
5. A statement of support and accountability of the non-profit
entity to that community(ies) from a governing body representing each
community represented by the CQE.
NMFS will provide the State with a copy of the applications. After
receiving the copies, the State will have a period of 30 days to
provide comments to NMFS. NMFS will consider these comments before
certifying a non-profit entity as a CQE. NMFS will review all
applications for completeness. Incomplete applications will be returned
to the applicant for revision. This rule does not establish a limit on
the amount of time that a non-profit would have to correct deficiencies
in an application.
To minimize potential conflicts that may exist among non-profit
entities seeking qualification as a CQE, NMFS will not consider a
recommendation from a community governing body supporting more than one
non-profit entity to hold QS on behalf of that community. The specific
community governing body that would be relied on to make a
recommendation varies depending on the governance structure of the
particular community as specified below.
Establishing a requirement that a specific governing body within a
community provide a recommendation supporting a CQE creates a clear
link between the governing body that represents that community and the
CQE. Allowing multiple non-profits to apply as CQEs for a single
community requires additional review by NMFS to ensure accountability.
The linkage to specific recognized governing bodies within a community
minimizes the need for additional administrative oversight to ensure
accountability to a community and provides a clear nexus between the
CQE and the community members it is intended to represent by holding QS
on behalf of that community.
The specific governing body that provides the recommendation is
based on the principle that those communities that choose to
incorporate as cities have established a cohesive central government
structure in which all community residents can participate, and is
therefore most representative of the largest number of individuals. In
cases where a community is not incorporated, and a tribal government is
present, the tribal government is relied on to provide representation,
with an understanding that non-tribal members may have more limited
representation in such communities. However, many of these communities
are populated by a relatively large percentage of tribal members and
the tribal government is likely to represent the overall interests of
the communities. In communities lacking either of these governance
structures, but with an association that has a recognized relationship
with the State for purposes of governmental functions, that association
is deemed best suited to serve as a representative of that community's
interests. Establishing this priority eliminates the need to require
multiple governance structures within a community to come to a
consensus to recommend a CQE. This method would effectively provide a
veto power to a smaller and likely less representative governance
structure within the community.
Communities incorporated as municipalities. For a community that is
incorporated as a municipality under State statutes, the City Council
recommends the non-profit entity to serve as the CQE for that
community.
Communities represented by tribal governments. For those
communities that are not incorporated as municipalities but that are
represented by a tribal government recognized by the Secretary of the
Interior, the tribal governing body recommends the non-profit entity to
serve as the CQE for that community.
Communities represented by a non-profit association. For those
communities that are not incorporated as a municipality, and that are
not represented by a tribal government, the community non-profit
association that has an established relationship as the governmental
body recognized by the State for purposes of governmental functions
recommends the non-profit entity to serve as the CQE for that
community.
Communities without governing bodies. Those communities that are
not incorporated as a municipality, or are not represented by a tribal
government recognized by the Secretary of the Interior, and do not have
a community non-profit association recognized by the State for purposes
of governmental functions, are not eligible to recommend a non-profit
entity to hold QS on its behalf until a representative governing entity
is formed (e.g., incorporation as a municipality, representation by a
tribal government recognized by the Bureau of Indian Affairs, or
formation of a community non-profit association recognized by the
Alaska Department of Community and Economic Development). NMFS will
consult with the State to determine whether a community non-profit
association has been formed, and whether it adequately represents the
interests of the community before that community non-profit association
can recommend a CQE to hold QS on behalf of that community.
This requirement ensures that communities that do not have a
governmental structure form such a structure prior to being allowed to
recommend a specific non-profit entity as a CQE. This requirement is
expected to affect only two of the 42 eligible communities: Halibut
Cove and Meyers
[[Page 23686]]
Chuck. Neither of these communities possess any of the governmental
bodies described above.
8. Annual Report
Each CQE must submit an annual report by January 31 to NMFS and to
the governing body for each community represented by the CQE, detailing
the use of QS and IFQ by the CQE and community residents during the
previous year's fishing season. That annual report must contain the
following information for the preceding fishing season:
1. Identification of the eligible community, or communities,
represented by the CQE ;
2. Total amount of halibut QS and sablefish QS held by the CQE at
the start of the calendar year and at the end of the calendar year;
3. Total amount of halibut and sablefish IFQ leased from the CQE;
4. Names, business addresses, and amount of halibut and sablefish
IFQ received by each individual to whom the CQE leased IFQ;
5. The name, ADF&G vessel registration number, USCG documentation
number, length overall, and home port of each vessel from which the IFQ
leased from the CQE was fished;
6. The names, and business addresses of those individuals employed
as crew members when fishing the IFQ derived from the QS held by the
CQE.
7. A detailed description of the criteria used by the CQE to
distribute IFQ leases among eligible community residents;
8. A description of efforts made to employ crew members who are
residents of the eligible community;
9. A description of the process used to solicit lease applications
from residents of the eligible community on whose behalf the CQE is
holding QS;
10. The names and business addresses and amount of IFQ requested by
each individual applying to receive IFQ from the CQE;
11. Any changes in the bylaws of the CQE, board of directors, or
other key management personnel;
12. Copies of minutes and other relevant decision making documents
from CQE board meetings; and
13. The number of vessels on which IFQ derived from QS held by a
CQE is fished.
The purpose of the annual report is to assist NMFS and the Council
to assess the performance of the CQEs in meeting the objectives of
providing for community-held QS. The Council expressed its intent to
review the use of community QS 5 years after the effective date of
implementing the regulations.
Submitting the annual report by January 31 provides NMFS adequate
time to review the annual report for deficiencies that may exist and
provides the CQE with time to make corrections before issuing annual
IFQ to the CQE at the beginning of the IFQ fishing season.
NMFS routinely collects specific information on the transfer of QS
as part of transfer applications. Specifically, NMFS can provide items
1 through 4 and item 13, as described above, to the CQEs so that they
can include such information in their annual reports. The CQEs do not
have to collect this information separately.
If a CQE fails to submit a timely and complete annual report, then
NMFS would initiate an administrative action to suspend the ability of
that CQE to transfer QS and IFQ, and to receive additional QS by
transfer. This action would be implemented consistent with the
administrative review procedures provided at 50 CFR 679.43. Also, a CQE
would be subject to enforcement actions for violating regulations.
Changes from the Proposed Rule
This final rule implements the regulations established in the
proposed rule with two minor changes. First, this action clarifies that
residents of the Village of Seldovia would be considered eligible to
receive IFQ by transfer from the CQE established to represent the City
of Seldovia. Second, this action clarifies that the CQE which is
designated to represent the Indian Village of Metlakatla could be
incorporated under tribal authority due to its status as an Indian
Reservation, which is incorporated under Federal law. These changes
respond to concerns raised in public comment. A description of the need
for this change is provided in the ``Response to Comments'' section.
Response to Comments
The proposed rule was published in the Federal Register on October
16, 2003 (68 FR 59564), and invited public comments until December 1,
2003. NMFS received 22 public comment letters containing a total of 20
unique comments. Thirteen of the comments received were letters
supporting the proposed rule and requesting Secretarial approval of
Amendment 66 to the FMP.
During the public comment period, the Council convened a committee
to review the proposed rule. This committee was charged with reviewing
the proposed rule, but was not specifically tasked with providing
formal comments to NMFS. This forum provided an opportunity for
affected coastal communities and other members of the public to review
the proposed rule and could serve as a basis for additional comments
from individual committee members. Although no formal comments were
submitted, several members of the committee did submit written comments
independently.
Comment 1: This rule will have an adverse effect on the marine
environment, and more specifically halibut and sablefish fishery
stocks.
Response: This rule is not expected to adversely affect the marine
environment. NMFS prepared an EA/RIR/FRFA for this action that examined
its potential effects on the marine environment and found that no
significant impact on the human environment would result from this
action. Specifically in reference to halibut and sablefish fishery
stocks, this rule does not increase the overall amount of halibut or
sablefish that can be harvested. The total amount of halibut and
sablefish that can be harvested is determined by a scientific review of
the stock status on an annual basis. Neither the halibut nor the
sablefish stocks are considered overfished, nor is there any indication
that these stocks are subject to overfishing. Nothing in this rule
diminishes the ability of the IPHC or NMFS to set conservative catch
limits for these stocks based on the best available scientific
information to ensure their biological conservation.
Comment 2: Existing regulations at 50 CFR 679.41, which require
that an individual must have a minimum of 150 days of experience
working onboard a vessel as a member of a harvesting crew in any U.S.
commercial fishery in order to receive IFQ by transfer, could prevent
individuals participating in the salmon setnet fisheries, who typically
operate from a skiff, from qualifying as an ``IFQ crew member.''
Response: Regulations at 50 CFR 679.2 define an ``IFQ crew member''
as ``any individual who has at least 150 days experience working as
part of a harvesting crew in any U.S. commercial fishery.'' In order to
receive QS or IFQ by transfer, one of the qualifications is that an
individual must be an IFQ crew member. Harvesting is defined as ``work
that is related to the catching and retaining of fish'' for the
purposes of this definition. If the salmon set net fishery is a U.S.
commercial fishery, then nothing within the existing regulations would
disqualify a member of a harvesting crew in that fishery from using the
time that they have accrued in that work toward the 150-day requirement
to receive IFQ by transfer from a CQE.
[[Page 23687]]
Comment 3: For individuals to receive IFQ from the CQE, they must
affirm that they have maintained a domicile in the community on whose
behalf the CQE is holding QS from which the IFQ is leased for at least
12 consecutive months. Individuals living outside the city limits of
Seldovia, one of the communities qualified to have a CQE hold QS on its
behalf, would be ineligible to receive IFQ under this program.
Residents of Seldovia Village, which is adjacent to the City of
Seldovia, however, have historically participated in commercial
fisheries operating out of Seldovia.
Response: This rule establishes the City of Seldovia as a community
on whose behalf a CQE may hold QS. The Council did not specify whether
the residency requirement would allow individuals living outside of the
established boundaries of a community to participate. The City of
Seldovia has distinct boundaries from the Village of Seldovia and a
strict interpretation of this rule would exclude residents outside the
City of Seldovia from participating in this program. Based on
information provided by the commenter and additional information from
State records, however, a historic linkage between the City of Seldovia
and the Village of Seldovia is apparent in terms of participation in
commercial fisheries.
In light of the historic linkage between the City of Seldovia and
the Village of Seldovia, NMFS is clarifying the rule so that residents
of the Village of Seldovia could participate as potential recipients of
any IFQ derived from QS held on behalf of the City of Seldovia. The
final rule has been modified accordingly at 50 CFR 679.2.
Comment 4: The Village of Seldovia should be designated as a
community eligible to designate a CQE to hold QS on its behalf.
Response: The Village of Seldovia may meet many of the requirements
necessary to qualify as an eligible community under the criteria
established by the proposed rule except that it was not specifically
designated by the Council. As is noted in the preamble of the proposed
rule, the Council adopted a specific list of eligible communities to
limit the entry of new communities into the Community QS Program (see
Table 21 to part 679). The Council expressed a desire to review the
addition of any communities not listed. This review reduces potential
disruption in administration of the Community QS Program due to a
sudden and unanticipated increase in competition for QS among eligible
communities. This Council review also would provide an additional
public review process before modifying the Community QS Program.
Public input into the Council process did not indicate that the
Village of Seldovia sought inclusion into this program and the Council
did not recommend its inclusion into the list of initially eligible
communities. However, nothing in this final rule prevents the Village
of Seldovia from petitioning the Council to be included into the list
of eligible communities through a possible amendment to the FMP at some
point in the future. However, residents of the Village of Seldovia may
participate in the program as explained in the response to Comment 3.
Comment 5: Establishing a program which limits the individual use
cap of halibut and sablefish that each CQE may hold on behalf of a
community is not responsive to the needs of individual communities with
larger populations relative to many of the rural communities eligible
to recommend a CQE. Larger communities should have a larger use cap in
proportion to their population.
Response: In the development of its policy, the Council considered
an individual use cap for the communities as an equitable basis for
establishing the distribution of shares. Alternative mechanisms for
limiting QS among communities were not further developed. The commenter
indicates that the potential amount of IFQ available for each
individual fisher is lower in larger communities. The potential amount
is the same (same limits) but the competition for that IFQ would be
greater. However, the impetus for this program is not to supplement
ownership by individuals within communities, but to provide an
opportunity for improving the likelihood of community residents to
receive IFQ leases. The proposed rule noted that residents of larger
communities typically have improved access to financial markets and
alternative fishery and non-fishery employment opportunities.
Establishing the same individual use cap for all communities may result
in less IFQ available per qualified resident in larger communities, but
an alternative use cap mechanism based on the population of the
community would create an advantage for larger communities relative to
smaller communities. Applying an equal individual use cap among the
communities was considered to be an equitable measure for limiting the
holdings of an individual community without providing an allocative
advantage to larger communities.
Comment 6: The Commenter believes that the 50,000 lb (22.7 mt)
limit on the amount of halibut or sablefish IFQ that can be leased and
fished on board an individual vessel is not sufficient to meet the
needs of the offshore fishery, particularly for sablefish, which
typically require larger vessels and more harvests to be profitable.
The 50,000 lb (22.7 mt) IFQ vessel lease cap may not provide adequate
halibut and sablefish product to support the operations of newer
vessels.
Response: The 50,000 lb (22.7 mt) limit on halibut and 50,000 lb
(22.7 mt) limit on sablefish was established as a measure to ensure a
broader distribution of IFQ among potentially qualified residents.
Although a larger upper limit on the amount of IFQ that can be used
aboard an individual vessel would provide an opportunity for larger
vessels to participate in IFQ fisheries using IFQ derived from QS held
by CQEs, the 50,000 lb (22.7 mt) limit was established to limit
consolidation and to accommodate smaller QS holder and new entrants
that may benefit from an IFQ lease. The 50,000 lb (22.7 mt) limit was
developed through the Council's deliberative process and is responsive
to public concerns raised during the development of the program.
Comment 7: The commenter raises concerns that the proceeds that may
be generated by this program could be used to fund general community
projects.
Response: The final rule restricts the use of funds derived from
the sale of QS to projects that are intended to sustain, expand, or
improve the ability of community residents to participate in the IFQ
fisheries. These restrictions are detailed in the preamble to the
proposed rule. As the QS holding entity, the CQE would maintain the
authority to administer funds within the guidelines established by this
rule. This rule does not establish restrictions on the use of funds
generated from revenues obtained by the lease of IFQ to community
residents. The specific use of any funds generated by leasing IFQ could
be used at the discretion of the CQE.
Comment 8: The State of Alaska should be allowed to provide the
recommendation necessary for the approval of a CQE for a particular
community in those communities where internal issues may prohibit a
legitimate CQE from obtaining support from the governing body, as
established by this rule.
Response: The mechanism for establishing support for a CQE was
intended to provide a linkage between the community and the governing
body of that community. Although an alternative mechanism for providing
[[Page 23688]]
support to a CQE is possible through a State approval mechanism,
establishing such a mechanism at this time would require establishing
criteria for establishing when a community is not capable of meeting
the requirements for recommending a CQE to hold QS on its behalf, and
an appeal mechanism for those governing bodies that wish to challenge
an adverse finding. The commenter states that certain governing bodies
may not be well-suited or capable of providing the support required to
recommend a CQE. However, at this time it is not clear which governing
bodies are not capable of providing the type of support that this
program would require. Establishing a separate mechanism at this time
could address a potential future concern about the ability of governing
bodies to recommend a CQE, but it is unclear that the need for a
separate approval mechanism is required at this time. If after the
implementation of this program it becomes apparent that certain
community governing structures are not capable of providing the support
and oversight required then the Council could recommend additional
regulatory changes to address these concerns with a more detailed
understanding of the issues. The regulations could be modified at that
time to accommodate any changes that may be necessary for specific
communities.
Comment 9: NMFS should review the cumulative impacts of the
restrictions on QS purchase by CQEs and provide additional analysis on
the amount of QS that is available for purchase in each IFQ regulatory
management area.
Response: The EA/RIR/IRFA prepared for this action reviews of the
cumulative impacts of limits and restrictions on QS purchase. NMFS does
not maintain a database listing all QS available for purchase since QS
transfer is governed by private contractual agreements and the amount
of QS available on the market is dependent on the choices of individual
QS holders. NMFS maintains a list of all QS holders, but the status of
those shares is unknown.
Comment 10: The CQE should be required to verify an IFQ lessee's
residency.
Response: The CQE will be one party to the IFQ transfer form that
is required for each vessel lease. The IFQ lessee will have to affirm
his or her residency on this form. Presumably, the CQE can verify the
prospective lessee's residency independently of any regulatory
requirement. Requiring that the CQE verify the prospective lessee's
residency and requiring the lessee to affirm his or her residency on
the QS/IFQ transfer application is redundant and not required to meet
the intent of this program.
Comment 11: The CQE should be defined to include multipurpose
operational functions such as buying and selling seafood products.
Response: Nothing in this final rule limits the ability of the CQE
to participate in other business operations. NMFS requires that a CQE
meet the criteria established in this rule for its formation, but does
not limit the ability of the CQE to engage in other activities.
Comment 12: The regulations should require that primary processing
occur within the community on whose behalf the CQE holds QS.
Response: The Council did not recommend and this rule does not
implement specific processing requirements based on public testimony
concerning the lack of processing capacity in many of the smaller
communities that would be eligible to participate in this program. The
intent of the program is not to limit delivery requirements to specific
communities, but to provide an additional opportunity to the fishermen
of eligible communities to access halibut and sablefish IFQ fisheries.
Limiting processing to specific communities does not meet the intent of
this program and would limit the ability of an IFQ lessee to
effectively seek the best ex-vessel value.
Comment 13: The proof of support for a CQE from the governing body
of an eligible community should be a standardized form.
Response: The regulations established by this rule require that a
resolution recommending a CQE be provided by the appropriate governing
body at Sec. 679.41(l)(v). The same procedure is required for all
governing bodies. A standardized form is not required for the governing
body to pass a resolution to indicate its support for a CQE.
Comment 14: Tribal governments in Southeast Alaska should be
provided with the authority to participate as community governing
bodies that recommend the CQE.
Response: As noted in the preamble to the proposed rule (68 FR
59564) and the preamble to this final rule, the Council recommended
this program, and the Secretary of Commerce approved the FMP amendment,
as a measure to provide additional opportunities for rural residents in
remote communities throughout the Gulf of Alaska. This rule implements
measures that provide an opportunity for all rural residents to
participate in this program and is not intended to limit participation
only to tribal members or require the approval of tribal governments to
recommend a CQE in all communities.
The commenter suggests that ``Southeast Tribes'' participate in the
process of recommending a CQE in addition to the governing body of the
community. As noted in the preamble, this rule is designed so that only
one governing body would provide the recommendation for a CQE. This is
intended to reduce potential conflicts that could exist with multiple
governing bodies providing differing recommendations. The rule is
structured to accommodate the governing bodies of the communities and
is based on the principle that those communities that have chosen to
incorporate as cities have established a cohesive central government
structure in which all community residents can participate, and is
therefore the most representative of the largest number of individuals.
In cases where a community is not incorporated, and a tribal government
is present, the tribal government is relied on to provide
representation. Many of these communities are populated by a relatively
large percentage of tribal members and the tribal government is likely
to represent the overall interests of the communities.
If tribal governments were required to approve the recommendation
for a CQE in all circumstances, than they effectively would control the
recommendation process by the ability to refuse to approve a CQE
recommended by a city government that did not receive a recommendation
from the tribe. This would limit the roll of the municipality and its
ability to represent the broad range of constituents that a
municipality is supposed to represent.
Comment 15: The Articles of Incorporation and bylaws for a CQE
should be consistent among the non-profit entities seeking recognition
as a CQE.
Response: The specific articles of incorporation and bylaws may
differ from community to community depending on the specific needs of
the CQE, requests of the governing body of that community, and specific
financial considerations that may exist on a case-by-case basis. This
rule does not establish specific requirements because the conditions
that may be necessary for a CQE in one community may differ from other
communities. All prospective CQEs are required to be incorporated
through the State of Alaska (except in the case of Metlakatla), but no
specific requirements exist on the specific form of non-profit
incorporation to provide greater flexibility to those
[[Page 23689]]
communities. Uniform requirements would reduce that flexibility.
Comment 16: The fishing seasons for the halibut and sablefish IFQ
Programs should be 12 months.
Response: This rule is not intended to modify the existing IFQ
fishing seasons, but is intended to expand the ability of non-profit
entities to hold QS on behalf of specific communities. Modifying the
IFQ fishing seasons would require a separate regulatory action not
intended under this rule.
Comment 17: There is no discussion of the use of holding pens as a
means of preserving live product in this rule.
Response: This rule is not intended to modify fish handling
practices. Nothing in this rule would limit the use of holding pens or
other methods to hold fish for use in processing and marketing to the
extent those techniques are allowed under other State and Federal
regulations.
Comment 18: Local governments, specifically borough governments,
should be allowed to be eligible as CQEs. Additional measures to
develop a separate non-profit entity are not necessary to meet the
objectives of this program.
Response: Although a number of municipalities may be well-suited to
holding QS on behalf of specific communities, the FMP amendment that
this final rule would implement states that a separate non-profit
entity should be formed for the express purpose of holding QS on behalf
of a community. The commenter correctly notes that municipalities may
have an established financial capacity that would enable them to access
capital markets. However, nothing in this rule would limit the ability
of municipalities to participate in the formation of the non-profit
entities, assist them in securing capital, or assist communities within
a borough to incorporate a CQE. While it is possible that some of the
functions of a CQE would duplicate functions of a borough government,
the Council was explicit in their recommendations that a new non-profit
entity would be best suited to serve as a CQE rather than relying on
existing governing structures. During public deliberations the Council
considered alternative mechanisms for establishing a CQE. At that time,
the Council considered the potential advantages to establishing a
separate body to hold QS on behalf of the community. The Council
recommended that newly established CQEs be formed so that all
communities would have a uniform application process, and so that all
communities would be on an equal footing.
Comment 19: The CQE established to represent Metlakatla should be
allowed to incorporate under the laws of the Metlakatla Indian
Community.
Response: The Council recommended incorporation under the laws of
the State of Alaska to provide consistency in the certification of non-
profit entities. Incorporating a non-profit entity is typically
performed through the State although specific provisions for
incorporating through tribal governments is possible. The community of
Metlakatla is unique among the other communities in that it is
incorporated under Federal law as an Indian Reservation and is not
subject to incorporation as a municipality under regulations of the
State of Alaska. Given the unique status of Metlakatla under Federal
law, this rule is modified to allow the non-profit entity which will
represent the community of Metlakatla as a CQE to incorporate as a non-
profit entity under Federal law. Any non-profit entity incorporated
under Federal law would still need to meet the other requirements
established in this rule under 50 CFR 679.41(l) to be authorized to
serve as the CQE for the community of Metlakatla.
Comment 20: The commenter requests assurance that this program may
be modified in the future based on continuing formal consultation.
Response: This program can be modified in the future based on
recommendations made by the Council or NMFS. The annual report provides
a periodic opportunity to review the progress of the CQEs in meeting
the goals and objectives of this program. The Council stated its intent
to review this program five years after its implementation.
Classification
Included with this final rule is the Final Regulatory Flexibility
Analysis (FRFA) that contains the items specified in 5 U.S.C. 604(a).
The FRFA consists of the IRFA, the comments and responses to the
proposed rule, and the analyses completed in support of this action. A
copy of the IRFA is available from the Council (see ADDRESSES). The
preamble to the proposed rule contained a detailed summary of the
analyses conducted in the IRFA, and that discussion is not repeated in
its entirety here.
Summary of the FRFA
The proposed rule was published in the Federal Register on October
16, 2003 (68 FR 59564). An Initial Regulatory Flexibility Analysis
(IRFA) was prepared for the proposed rule, and described in the
classifications section of the preamble to the rule. No comments were
received on the IRFA.
The implementation of Amendment 66 and the associated regulations
for halibut would potentially affect all individuals, corporations or
partnerships, or other collective entities holding QS. At the end of
the 2001 IFQ season, 3,485 persons (individuals, corporations, and
other entities) held halibut QS; 872 persons held sablefish QS (NMFS/
RAM 2002). An examination of limits on quota share holdings indicates
that the halibut and sablefish fishing operations are small.
Additionally, 42 communities are to designate Community Quota Entities
(CQEs) to hold QS on behalf of these communities. All of these
communities would be considered to be small entities.
This regulation imposes new recordkeeping or reporting requirements
on the regulated small entities. Specifically, this rule requires that
CQEs provide an application, an annual report, information concerning
the use of funds derived from the sale of QS, and submit a QS/IFQ
transfer form. The governing body of an eligible community is required
to provide a resolution supporting a CQE to represent that community
and to provide an authorization for the sale of any QS by the CQE. This
collection-of-information requirement was submitted to OMB for approval
on July 29, 2003, under the OMB approval number 0648-0272. This request
is currently under review. Those sections of the regulation that will
be effective after OMB approval are noted in the DATES section of this
rule.
This rule incorporates revisions to the existing IFQ Program
regulations and policy to explicitly allow a new group of non-profit
entities to hold QS on behalf of residents of specific rural
communities located adjacent to the coast of the GOA. This change
allows a non-profit corporate entity that meets specific criteria to
receive transferred halibut or sablefish QS on behalf of an eligible
community and to lease the resulting IFQ to fishermen who are residents
of the eligible community. This change is intended to provide
additional opportunities to these fishermen, and may indirectly address
concerns about the economic viability of those communities. The
objectives for this action are described in detail in the proposed rule
which was published on October 16, 2003 (68 FR 59564).
The status quo was considered as an alternative, but was rejected.
That alternative would have resulted in no action to address the
concerns that since the initial issuance of QS the amount of
[[Page 23690]]
QS and the number of resident QS holders has substantially declined in
most of the GOA communities affected by this action. This trend may
have had an effect on employment and may have reduced the diversity of
fisheries to which fishermen in rural communities have access. The
ability of fishermen in small rural communities to purchase QS or
maintain existing QS may be limited by a variety of factors unique to
those communities. Although the specific causes for decreasing QS
holdings in rural communities may vary, the net effect is overall lower
participation by residents of these communities in the halibut and
sablefish IFQ fisheries.
Within the preferred alternative, numerous elements and options
were analyzed that considered a range of measures for establishing
eligibility, use caps, transfer provisions, and other aspects of this
program. Combinations of elements and options were analyzed as part of
the preferred alternative to provide an adequate contrast and range of
alternative approaches to status quo management.
The preferred alternative modified the IFQ Program to allow non-
profit entities that represent small rural communities in the GOA with
a historic participation in the halibut and sablefish fisheries to hold
QS. The Council's recommendations also reflect the most recent
amendments to the Magnuson-Stevens Act, and IFQ policy recommendations
by the National Research Council (NRC). The status quo alternative
would not have addressed these concerns or the recommendations of the
NRC.
Statement and Objective and Need
A description of the reasons why this action is being considered
and the objectives of and legal basis for this action are contained in
the preamble to the proposed rule and are not repeated here.
Steps Taken to Minimize Economic Impacts on Small Entities
This rule revises the eligibility criteria to receive QS and IFQ by
transfer to allow eligible communities in the GOA to establish non-
profit entities to purchase and hold halibut and sablefish QS for lease
to, and use by, community residents as defined by specific elements of
the rule. This action is intended to improve the effectiveness of the
IFQ Program and is necessary to promote the objectives of the Magnuson-
Stevens Act and the Halibut Act with respect to the IFQ fisheries. The
potential economic impacts of these measures are described in detail in
the FRFA.
Analysis of this rule indicates no adverse impact on small entities
from this action. This action may have an economic benefit for small
entities, to the extent that this action provides additional fishing
opportunities to rural fishermen. The benefit is largely due to the
redistribution of fishing opportunities, and is primarily a social
benefit, not a strictly economic benefit. However, the potential
economic benefits of this possibility can not now be measured or
estimated.
Net benefits cannot be quantified because of the importance of non-
market social costs and benefits in the proposed action. However,
qualitatively, the sale of QS to the CQEs will increase the revenues of
some community members who may wish to exit the fishery, or redirect
capital into other industries within the larger communities incurring a
net loss of QS. To the extent that residents within larger communities
currently hold proportionally more quota shares, these residents, and
presumably the communities where they live, will benefit from the
compensation received by the sale of quota shares; otherwise, they
would not voluntarily choose to sell.
No measures were taken to reduce impacts on small entities beyond
those already taken with the development of alternatives in the IRFA.
The IRFA considered an alternative that would have maintained the
status quo in addition to this alternative.
NMFS is not aware of any alternatives in addition to those
considered in this action that would accomplish the objectives of the
Magnuson-Stevens Act and other applicable statutes while further
minimizing the economic impact of the rule on small entities. The
impact on small entities under this action is not more adverse than the
status quo for the small entities in the halibut and sablefish IFQ
fisheries. This action could provide additional benefits to a number of
small entities that would not occur under the status quo option.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. NMFS will
publish a small entity compliance guide during the implementation phase
of this program to assist the governing bodies of the eligible
communities identified in this rule by posting it on the NMFS Alaska
Region website at: http://www.fakr.noaa.gov/. Copies of this final rule
are available from NMFS (see ADDRESSES) and at the website above.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
This final rule complies with the Halibut Act and the Council's
authority to implement allocation measures for the management of the
halibut fishery.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: April 26, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons discussed 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 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq.,
Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L. 106-31,
113 Stat. 57; 16 U.S.C. 1540(f).
0
2. In Sec. 679.2, the definition for ``Eligible community'' is revised
and definitions for ``Community quota entity (CQE)'' and ``Eligible
community resident'' are added in alphabetical order to read as
follows:
Sec. 679.2 Definitions.
* * * * *
Community quota entity (CQE): (for purposes of the IFQ Program)
means a non-profit organization that:
(1) Did not exist prior to April 10, 2002;
(2) Represents at least one eligible community that is listed in
Table 21 of this part; and,
(3) Has been approved by the Regional Administrator to obtain by
transfer and hold QS, and to lease IFQ resulting from the QS on behalf
of an eligible community.
* * * * *
Eligible community means:
(1) For purposes of the CDQ program, a community that is listed in
Table 7 to this part or that meets all of the following requirements:
(i) The community is located within 50 nm from the baseline from
which the breadth of the territorial sea is measured
[[Page 23691]]
along the Bering Sea coast from the Bering Strait to the most western
of the Aleutian Islands, or on an island within the Bering Sea. A
community is not eligible if it is located on the GOA coast of the
North Pacific Ocean, even if it is within 50 nm of the baseline of the
Bering Sea;
(ii) That is certified by the Secretary of the Interior pursuant to
the Native Claims Settlement Act (P.L. 92-203) to be a native village;
(iii) Whose residents conduct more than half of their current
commercial or subsistence fishing effort in the waters of the BSAI; and
(iv) That has not previously deployed harvesting or processing
capability sufficient to support substantial groundfish fisheries
participation in the BSAI, unless the community can show that benefits
from an approved CDP would be the only way to realize a return from
previous investment. The community of Unalaska is excluded under this
provision.
(2) For purposes of the IFQ program, a community that is listed in
Table 21 to this part, and that:
(i) Is a municipality or census designated place, as defined in the
2000 United States Census, located on the GOA coast of the North
Pacific Ocean;
(ii) Has a population of not less than 20 and not more than 1,500
persons based on the 2000 United States Census;
(iii) Has had a resident of that community with at least one
commercial landing of halibut or sablefish made during the period from
1980 through 2000, as documented by the State of Alaska Commercial
Fisheries Entry Commission; and
(iv) Is not accessible by road to a community larger than 1,500
persons based on the 2000 United States Census.
* * * * *
Eligible community resident means, for purposes of the IFQ Program,
any individual who:
(1) Is a citizen of the United States;
(2) Has maintained a domicile in a rural community listed in Table
21 to this part for the 12 consecutive months immediately preceding the
time when the assertion of residence is made, and who is not claiming
residency in another community, state, territory, or country, except
that residents of the Village of Seldovia shall be considered to be
eligible community residents of the City of Seldovia for the purposes
of eligibility to lease IFQ from a CQE; and
(3) Is an IFQ crew member.
* * * * *
0
3. In Sec. 679.5, paragraph (l)(8) is added to read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(l) * * *
(8) CQE annual report for an eligible community. By January 31, the
CQE shall submit a complete annual report on halibut and sablefish IFQ
activity for the prior fishing year for each community represented by
the CQE to the Regional Administrator, National Marine Fisheries
Service, P.O. Box 21668, Juneau, AK 99802, and to the governing body of
each community represented by the CQE as identified in Table 21 to this
part.
(i) A complete annual report contains the following information:
(A) Name, ADF&G vessel registration number, USCG documentation
number, length overall, and home port of each vessel from which the IFQ
leased from QS held by a CQE was fished;
(B) Name and business addresses of individuals employed as crew
members when fishing the IFQ derived from the QS held by the CQE;
(C) Detailed description of the criteria used by the CQE to
distribute IFQ leases among eligible community residents;
(D) Description of efforts made to ensure that IFQ lessees employ
crew members who are eligible community residents of the eligible
community aboard vessels on which IFQ derived from QS held by a CQE is
being fished;
(E) Description of the process used to solicit lease applications
from eligible community residents of the eligible community on whose
behalf the CQE is holding QS;
(F) Names and business addresses and amount of IFQ requested by
each individual applying to receive IFQ from the CQE;
(G) Any changes in the bylaws of the CQE, board of directors, or
other key management personnel; and
(H) Copies of minutes and other relevant decision making documents
from CQE board meetings.
(ii) Additional information may be submitted as part of the annual
report based on data available through NMFS. This includes:
(A) Identification of the eligible community, or communities,
represented by the CQE;
(B) Total amount of halibut QS and sablefish QS held by the CQE at
the start of the calendar year and at the end of the calendar year;
(C) Total amount of halibut and sablefish IFQ leased from the CQE;
(D) Names, business addresses, and amount of halibut and sablefish
IFQ received by each individual to whom the CQE leased IFQ; and
(E) Number of vessels that fished for IFQ derived from QS held by a
CQE.
* * * * *
0
4. In Sec. 679.7, paragraphs (f)(16) and (f)(17) are added to read as
follows:
Sec. 679.7 Prohibitions.
* * * * *
(f) * * *
(16) Hire a master to fish for IFQ halibut or IFQ sablefish that is
derived from QS held by a CQE.
(17) Process IFQ halibut or IFQ sablefish onboard a vessel on which
a person is using IFQ derived from QS held by a CQE.
* * * * *
0
5. In Sec. 679.41, paragraphs (d)(1) and (g)(1) are revised, and
paragraphs (c)(10), (e)(4), (e)(5), (g)(5) through (g)(8), and
paragraph (l) are added to read as follows:
Sec. 679.41 Transfer of quota shares and IFQ.
* * * * *
(c) * * *
(10) If the person applying to transfer or receive QS or IFQ is a
CQE, the following determinations are required for each eligible
community represented by that CQE:
(i) An individual applying to receive IFQ from QS held by a CQE is
an eligible community resident of the eligible community in whose name
the CQE is holding QS;
(ii) The CQE applying to receive or transfer QS, has submitted a
complete annual report(s) required by Sec. 679.5 (l)(8);
(iii) The CQE applying to transfer QS has provided information on
the reasons for the transfer as described in paragraph (g)(7) of this
section;
(iv) The CQE applying to receive QS is eligible to hold QS on
behalf of the eligible community in the halibut or sablefish regulatory
area designated for that eligible community in Table 21 to this part;
and
(v) The CQE applying to receive QS has received notification of
approval of eligibility to receive QS/IFQ for that community as
described in paragraph (d)(1) of this section.
(d) * * *
(1) Application for Eligibility. All persons applying to receive QS
or IFQ must submit an Application for Eligibility to Receive QS/IFQ
(Application for Eligibility) containing accurate information to the
Regional Administrator, except that an Application for Eligibility to
Receive QS/IFQ (Application for Eligibility) is not required for a CQE
if a complete application to become a CQE, as described in paragraph
(l)(3) of this
[[Page 23692]]
section, has been approved by the Regional Administrator on behalf of
an eligible community. The Regional Administrator will not approve a
transfer of IFQ or QS to a person until the Application for Eligibility
for that person is approved by the Regional Administrator. The Regional
Administrator shall provide an Application for Eligibility form to any
person on request.
* * * * *
(e) * * *
(4) A CQE may not purchase or use sablefish QS blocks less than or
equal to the number of QS units specified in (e)(2)(i) through
(e)(2)(iv) of this section.
(5) A CQE may not purchase or use halibut QS blocks less than or
equal to the number of QS units specified in (e)(3)(i) and (e)(3)(ii)
of this section.
* * * * *
(g) * * *
(1) Except as provided in paragraph (f), paragraph (g)(2), or
paragraph (l) of this section, only persons who are IFQ crew members,
or who were initially issued QS assigned to vessel categories B, C, or
D, and meet the eligibility requirements in this section, may receive
by transfer QS assigned to vessel categories B, C, or D, or the IFQ
resulting from it.
* * * * *
(5) A CQE may not hold QS in halibut IFQ regulatory areas 2C or 3A
that is assigned to vessel category D.
(6) IFQ derived from QS held by a CQE on behalf of an eligible
community may be used only by an eligible community resident of that
eligible community.
(7) A CQE may transfer QS:
(i) To generate revenues to provide funds to meet administrative
costs for managing the community QS holdings;
(ii) To generate revenue to improve the ability of residents within
the community to participate in the halibut and sablefish IFQ
fisheries;
(iii) To generate revenue to purchase QS to yield IFQ for use by
community residents;
(iv) To dissolve the CQE; or
(v) As a result of a court order, operation of law, or as part of a
security agreement.
(8) If the Regional Administrator determines that a CQE transferred
QS for purposes other than those specified in paragraph (g)(7) of this
section, then:
(i) The CQE must divest itself of any remaining QS holdings and
will not be eligible to receive QS by transfer for a period of three
years after the effective date of final agency action on the Regional
Administrator's determination; and
(ii) The Regional Administrator will not approve a CQE to represent
the eligible community in whose name the CQE transferred quota for a
period of three years after the effective date of final agency action
on the Regional Administrator's determination.
* * * * *
(l) Transfer of QS to CQEs. (1) Each eligible community must
designate a CQE to transfer and hold QS on behalf of that community.
(2) Each eligible community may designate only one CQE to hold QS
on behalf of that community at any one time.
(3) Prior to initially receiving QS by transfer on behalf of a
specific eligible community, a non-profit entity that intends to
represent that eligible community as a CQE must have approval from the
Regional Administrator. To receive that approval, the non-profit entity
seeking to become a CQE must submit a complete application to become a
CQE to the Regional Administrator, NMFS, P.O. Box 21668, Juneau, AK
99802. The Regional Administrator will provide a copy of the complete
application to the Alaska Department of Community and Economic
Development, Commissioner, P.O. Box 110809, Juneau, AK 99811-0809. NMFS
will consider comments received from the Alaska Department of Community
and Economic Development when reviewing applications for a non-profit
entity to become a CQE. The Alaska Department of Community and Economic
Development must submit comments on an application to the Regional
Administrator, NMFS, P.O. Box 21668, Juneau, AK 99802, within 30 days
of receipt of the application in order for those comments to be
considered by the Regional Administrator during the approval process.
If an application is disapproved, than that determination may be
appealed under the provisions established at 50 CFR 679.43. A complete
application to become a CQE consists of:
(i) The articles of incorporation under the laws of the State of
Alaska for that non-profit entity, except that a non-profit entity that
is representing the Metlakatla Indian Village may provide articles of
incorporation under Federal Law;
(ii) A statement indicating the eligible community, or communities,
represented by that non-profit entity for purposes of holding QS;
(iii) Management organization information, including:
(A) The bylaws of the non-profit entity;
(B) A list of key personnel of the managing organization including,
but not limited to, the board of directors, officers, representatives,
and any managers;
(C) A description of how the non-profit entity is qualified to
manage QS on behalf of the eligible community, or communities, it is
designated to represent, and a demonstration that the non-profit entity
has the management, technical expertise, and ability to manage QS and
IFQ; and
(D) The name of the non-profit organization, taxpayer ID number,
NMFS person number, permanent business mailing addresses, name of
contact persons and additional contact information of the managing
personnel for the non-profit entity, resumes of management personnel,
name of community or communities represented by the CQE, name of
contact for the governing body of each community represented, date,
name and notarized signature of applicant, Notary Public signature and
date when commission expires.
(iv) A statement describing the procedures that will be used to
determine the distribution of IFQ to residents of the community
represented by that CQE, including:
(A) Procedures used to solicit requests from residents to lease
IFQ; and
(B) Criteria used to determine the distribution of IFQ leases among
qualified community residents and the relative weighting of those
criteria.
(v) A statement of support from the governing body of the eligible
community as that governing body is identified in Table 21 to this
part. That statement of support is:
(A) A resolution from the City Council or other official governing
body for those eligible communities incorporated as first or second
class cities in the State of Alaska;
(B) A resolution from the tribal government authority recognized by
the Bureau of Indian Affairs for those eligible communities that are
not incorporated as first or second class cities in the State of
Alaska; but are represented by a tribal government authority recognized
by the Secretary of the Interior; or
(C) A resolution from a non-profit community association, homeowner
association, community council, or other non-profit entity for those
eligible communities that are not incorporated as first or second class
cities in the State of Alaska, and is not represented by a tribal
government authority recognized by the Bureau of Indian Affairs. The
non-profit entity that provides a statement of support must:
[[Page 23693]]
(1) Have articles of incorporation as a non-profit community
association, homeowner association, community council, or other non-
profit entity; and
(2) Have an established relationship with the State of Alaska
Department of Community and Economic Development for purposes of
representing that community for governmental functions.
(D) If an eligible community is not incorporated as a first or
second class city in the State of Alaska, is not represented by a
tribal government authority recognized by the Secretary of the
Interior, and does not have a non-profit community association,
homeowner association, community council, or other non-profit entity
within that community with an established relationship with the Alaska
Department of Community and Economic Development for purposes of
representing that community for purposes of governmental functions,
then the Regional Administrator, NMFS, will not consider any statement
from a non-profit entity representing that community until that
community:
(1) Is incorporated as a first or second class city in the State of
Alaska;
(2) Establishes a tribal government authority recognized by the
Secretary of the Interior; or
(3) Establishes a non-profit community association, homeowner
association, community council, or other non-profit entity within that
community that meets the requirements established in paragraph (E) of
this section.
(E) If a community described under paragraph (l)(3)(v)(D) of this
section establishes a non-profit community association, homeowner
association, community council, or other non-profit entity within that
community, then the Regional Administrator, NMFS, will consider any
recommendations from this entity to support a particular applicant
after reviewing:
(1) Petitions from residents affirming that the non-profit
community association, homeowner association, community council, or
other non-profit entity within that community represents the residents
within that community; and
(2) Comments from the State of Alaska Department of Community and
Economic Development on the articles of incorporation for that non-
profit entity and the ability of that non-profit entity to adequately
represent the interests of that community for purposes of governmental
functions.
(3) If the Regional Administrator determines that this statement of
support is not adequate, than that determination may be appealed under
the provisions established at 50 CFR 679.43.
(4) The governing body of an eligible community as that governing
body is identified in Table 21 to this part, must provide authorization
for any transfer of QS by the CQE that holds QS on behalf of that
eligible community prior to that transfer of QS being approved by NMFS.
This authorization must be submitted as part of the Application for
Transfer. That authorization consists of a signature on the Application
for Transfer by a representative of the governing body that has been
designated by that governing body to provide such authorization to
approve the transfer of QS.
0
6. In Sec. 679.42, paragraphs (a), (f), (g)(1), and (h)(1) through
(h)(3) are revised, and paragraphs (e)(3) through (e)(8), and (i)(4)
are added to read as follows:
Sec. 679.42 Limitations on use of QS and IFQ.
(a) IFQ regulatory area and vessel category. (1) The QS or IFQ
specified for one IFQ regulatory area must not be used in a different
IFQ regulatory area.
(2) The QS or IFQ assigned to one vessel category must not be used
to harvest IFQ species on a vessel of a different vessel category,
except:
(i) As provided in paragraph (k) of this section (processing fish
other than IFQ halibut and IFQ sablefish);
(ii) As provided in Sec. 679.41(i)(1) of this part (CDQ
compensation QS exemption);
(iii) IFQ derived from QS held by a CQE may be used to harvest IFQ
species from a vessel of any length.
(3) Notwithstanding Sec. 679.40(a)(5)(ii) of this part, IFQ
assigned to vessel Category B must not be used on any vessel less than
or equal to 60 ft (18.3 m) LOA to harvest IFQ halibut in IFQ regulatory
area 2C or IFQ sablefish in the regulatory area east of 140[deg] W.
long. unless such IFQ derives from blocked QS units that result in IFQ
of less than 5,000 lb (2.3 mt), based on the 1996 TAC for fixed gear
specified for the IFQ halibut fishery and the IFQ sablefish fishery in
each of these two regulatory areas.
* * * * *
(e) * * *
(3) No CQE may hold sablefish QS in the IFQ regulatory areas of the
Bering Sea subarea and the Aleutian Islands subareas.
(4) No CQE may hold more than 3,229,721 units of sablefish QS on
behalf of any single eligible community.
(5) In the IFQ regulatory area east of 140[deg] W. long., no CQE
may hold more than 688,485 units of sablefish QS for this area on
behalf of any single eligible community.
(6) In the aggregate, all CQEs are limited to holding a maximum of
3 percent of the total QS in those IFQ regulatory areas specified in
Sec. 679.41(e)(2)(I) through (e)(2)(iv) of this part for sablefish in
the first calendar year implementing the regulation in this section. In
each subsequent calendar year, this aggregate limit on all CQEs shall
increase by an additional 3 percent in each IFQ regulatory area
specified in Sec. 679.41(e)(2)(i) through (e)(2)(iv) of this part up
to a maximum limit of 21 percent of the total QS in each regulatory
area specified in Sec. Sec. 679.41(e)(2)(i) through (e)(2)(iv) of this
part for sablefish.
(7) No individual that receives IFQ derived from sablefish QS held
by a CQE may hold, individually or collectively, more than 50,000 lb
(22.7 mt) of IFQ sablefish derived from any sablefish QS source.
(8) A CQE receiving category B, or C sablefish QS through transfer
may lease the IFQ resulting from that QS only to an eligible community
resident of the eligible community on whose behalf the QS is held.
(f) Halibut QS use. (1) Unless the amount in excess of the
following limits was received in the initial allocation of halibut QS,
no person, individually or collectively, may use more than:
(i) IFQ regulatory area 2C. 599,799 units of halibut QS.
(ii) IFQ regulatory area 2C, 3A, and 3B. 1,502,823 units of halibut
QS.
(iii) IFQ regulatory area 4A, 4B, 4C, 4D, and 4E. 495,044 units of
halibut QS.
(2) No CQE may receive an amount of halibut QS on behalf of any
single eligible community which is more than:
(i) IFQ regulatory area 2C. 599,799 units of halibut QS.
(ii) IFQ regulatory area 2C, 3A, and 3B. 1,502,823 units of halibut
QS.
(3) No CQE may hold halibut QS in the IFQ regulatory areas 4A, 4B,
4C, 4D, and 4E.
(4) A CQE representing an eligible community may receive by
transfer or use QS only in the IFQ regulatory areas designated for that
species and for that eligible community as described in Table 21 to
this part.
(5) In the aggregate, all CQEs are limited to holding a maximum of
3 percent of the total QS in those IFQ regulatory areas specified in
Sec. Sec. 679.41(e)(3)(i) through (e)(3)(iii) for halibut in the first
calendar year implementing the regulation in this section. In each
subsequent calendar year, this aggregate limit on all community quota
entities shall increase by an additional 3 percent in each IFQ
regulatory area specified in Sec. Sec. 679.41(e)(3)(i) through
(e)(3)(iii). This
[[Page 23694]]
limit shall increase up to a maximum limit of 21 percent of the total
QS in each regulatory area specified in Sec. Sec. 679.41(e)(3)(i)
through (e)(3)(iii) for halibut.
(6) No individual that receives IFQ derived from halibut QS held by
a CQE may hold, individually or collectively, more than 50,000 lb (22.7
mt) of IFQ halibut derived from any halibut QS source.
(7) A CQE receiving category B or C halibut QS through transfer may
lease the IFQ resulting from that QS only to an eligible community
resident of the eligible community represented by the CQE.
(g) * * *
(1) Number of blocks per species. Except as provided in paragraphs
(g)(1)(i) and (g)(1)(ii) of this section, no person, individually or
collectively, may hold more than two blocks of each species in any IFQ
regulatory area.
(i) A person, individually or collectively, who holds unblocked QS
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.
* * * * *
(h) * * *
(1) Halibut. No vessel may be used, during any fishing year, to
harvest more than one-half percent of the combined total catch limits
of halibut for IFQ regulatory areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E,
except that:
(i) In IFQ regulatory area 2C, no vessel may be used to harvest
more than 1 percent of the halibut catch limit for this area.
(ii) No vessel may be used, during any fishing year, to harvest
more than 50,000 lb (22.7 mt) of IFQ halibut from any halibut QS source
if that vessel is used to harvest IFQ halibut derived from halibut QS
held by a CQE.
(2) Sablefish. No vessel may be used, during any fishing year, to
harvest more than one percent of the combined fixed gear TAC of
sablefish for the GOA and BSAI IFQ regulatory areas, except that:
(i) In the IFQ regulatory area east of 140 degrees W. long., no
vessel may be used to harvest more than 1 percent of the fixed gear TAC
of sablefish for this area.
(ii) No vessel may be used, during any fishing year, to harvest
more than 50,000 lb (22.7 mt) of IFQ sablefish from any sablefish QS
source if that vessel is used to harvest IFQ sablefish derived from
sablefish QS held by a CQE.
(3) A person who receives an approved IFQ allocation of halibut or
sablefish in excess of these limitations may nevertheless catch and
retain all of that IFQ with a single vessel, except that this provision
does not apply if that IFQ allocation includes IFQ derived from QS held
by a CQE. However, two or more persons may not catch and retain their
IFQ in excess of these limitations.
* * * * *
(i) * * *
(4) IFQ derived from QS held by a CQE must be used only by the
individual whose IFQ permit account contains the resulting IFQ.
* * * * *
0
7. Table 21 to part 679 is added to read as follows:
Table 21 to Part 679.--Eligible GOA Communities, Halibut IFQ Regulatory
Use Areas, and Community Governing Body that Recommends the Community
Quota Entity
------------------------------------------------------------------------
Community Governing Body that
Eligible GOA Community recommends the CQE
------------------------------------------------------------------------
May use halibut QS only in halibut IFQ regulatory areas 2C, 3A
Angoon................................... City of Angoon
Coffman Cove............................. City of Coffman Cove
Craig.................................... City of Craig
Edna Bay................................. Edna Bay Community
Association
Elfin Cove............................... Community of Elfin Cove
Gustavus................................. Gustavus Community
Association
Hollis................................... Hollis Community Council
Hoonah................................... City of Hoonah
Hydaburg................................. City of Hydaburg
Kake..................................... City of Kake
Kasaan................................... City of Kasaan
Klawock.................................. City of Klawock
Metlakatla............................... Metlakatla Indian Village
Meyers Chuck............................. N/A
Pelican.................................. City of Pelican
Point Baker.............................. Point Baker Community
Port Alexander........................... City of Port Alexander
Port Protection.......................... Port Protection Community
Association
Tenakee Springs.......................... City of Tenakee Springs
Thorne Bay............................... City of Thorne Bay
Whale Pass............................... Whale Pass Community
Association
May use halibut QS only in halibut IFQ regulatory areas 3A, 3B
Akhiok................................... City of Akhiok
Chenega Bay.............................. Chenega IRA Village
Chignik.................................. City of Chignik
Chignik Lagoon........................... Chignik Lagoon Village
Council
Chignik Lake............................. Chignik Lake Traditional
Council
Halibut Cove............................. N/A
Ivanof Bay............................... Ivanof Bay Village Council
Karluk................................... Native Village of Karluk
King Cove................................ City of King Cove
Larsen Bay............................... City of Larsen Bay
Nanwalek................................. Nanwalek IRA Council
Old Harbor............................... City of Old Harbor
Ouzinkie................................. City of Ouzinkie
Perryville............................... Native Village of Perryville
Port Graham.............................. Port Graham Village Council
Port Lyons............................... City of Port Lyons
Sand Point............................... City of Sand Point
Seldovia................................. City of Seldovia
Tatitlek................................. Native Village of Tatitlek
Tyonek................................... Native Village of Tyonek
Yakutat.................................. City of Yakutat
------------------------------------------------------------------------
[FR Doc. 04-9855 Filed 4-29-04; 8:45 am]
BILLING CODE 3510-22-S