Federal Register, Volume 74 Issue 156 (Friday, August 14, 2009)

[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Rules and Regulations]
[Pages 41092-41095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19567]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 080630808-91192-03]
RIN 0648-AW97

Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea/
Aleutian Islands Crab Rationalization Program; Amendment 28

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations implementing Amendment 28 to the
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner
Crabs (FMP). These regulations amend the Bering Sea/Aleutian Islands
Crab Rationalization Program to allow post-delivery transfers of all
types of individual fishing quota and individual processing quota to
cover overages. This action is necessary to improve flexibility of the
fleet, reduce the number of violations for overages, reduce enforcement
costs, and allow more complete harvest of crab allocations. This action
is intended to promote the goals and objectives of the Magnuson-Stevens
Fishery Conservation and Management Act, the FMP, and other applicable
laws.

DATES: Effective September 14, 2009.

ADDRESSES: This action was categorically excluded from the need to
prepare an environmental assessment or environmental impact statement
under the National Environmental Policy Act. Copies of Amendment 28,
the categorical exclusion memorandum, and the Regulatory Impact Review/
Final Regulatory Flexibility Analysis (RIR/FRFA) prepared for this
action, as well as the Environmental Impact Statement prepared for the
Crab Rationalization Program, may be obtained from the NMFS Alaska
Region website at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Glenn Merrill or Rachel Baker, 907-
586-7228.

SUPPLEMENTARY INFORMATION: The king and Tanner crab fisheries in the
exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI)
are managed under the Fishery Management Plan for Bering Sea/Aleutian
Islands King and Tanner Crabs (FMP). The FMP was prepared by the North
Pacific Fishery Management Council under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). Amendments 18
and 19 to the FMP implemented the BSAI Crab Rationalization Program (CR
Program). Regulations implementing Amendments 18 and 19 were published
on March 2, 2005 (70 FR 10174), and are located at 50 CFR part 680.

Background

Under the CR Program, NMFS issued quota share (QS) to persons based
on their qualifying harvest histories in the BSAI crab fisheries during
a specific time period. Each year, the QS issued to a person yields an
amount of individual fishing quota (IFQ), which is a permit that
provides an exclusive harvesting privilege for a specific amount of raw
crab pounds, in a specific crab fishery, in a given season. The size of
each annual IFQ allocation is based on the amount of QS held by a
person in relation to the total QS pool in a crab fishery. For example,
a person holding QS equaling 1 percent of the QS computation pool in a
crab fishery receives IFQ to harvest 1 percent of the annual total
allowable catch (TAC) in that crab fishery. Catcher/processor license
holders were allocated catcher/processor vessel owner (CPO) QS for
their LLP license's history as catcher/processors; catcher vessel
license holders were issued catcher vessel owner (CVO) QS based on
their LLP license's catcher vessel history.
Under the CR Program, 97 percent of the initial allocation of QS
was issued to LLP license holders as CPO or CVO QS. The remaining three
percent was issued to vessel captains and crew as ``C shares'' based on
their harvest histories as crew members onboard crab fishing vessels.
Of the CVO IFQ, 90 percent is issued as ``A shares,'' or ``Class A
IFQ,'' which, in most fisheries, is subject to regional landing
requirements and must be delivered to a processor holding unused
individual processor quota (IPQ). This regional landing requirement is
commonly referred to as ``regionalization.'' The remaining 10 percent
of the annual vessel owner IFQ

[[Page 41093]]

is issued as ``B shares,'' or ``Class B IFQ,'' which may be delivered
to any processor and is not subject to regionalization. C shares also
are not subject to regionalization.
Processor quota shares are long term shares issued to processors.
These processor quota shares yield annual IPQ, which represents a
privilege to receive a certain amount of crab harvested with Class A
IFQ. IPQ are issued for 90 percent of the CVO TAC, creating a one-to-
one correspondence between Class A IFQ and IPQ.
NMFS can issue IFQ to the QS holder directly, or to a crab
harvesting cooperative composed of multiple QS holders who have
assigned their annual IFQ to the cooperative. Crab harvesting
cooperatives have been used extensively by QS holders to allow them to
receive a larger IFQ allotment and coordinate deliveries and price
negotiations among numerous quota holders and vessel owners. Most QS
holders joined cooperatives in the first four years of the CR Program
and are likely to continue membership because of the economic and
administrative benefits of consolidating their IFQs.

IFQ Overages Prior to this Final Rule Implementing Amendment 28

Prior to Amendment 28, IFQ permit holders, including QS holders,
lessees, and cooperatives, were prohibited from exceeding the amount of
IFQ that was issued to them (see Sec. 680.7(e)(2)). If a harvester
delivered more crab than the amount of IFQ that he held, he committed a
violation of regulations, commonly referred to as an ``overage''.
Overages occur either through deliberate actions, or more commonly
through unintentional errors such as miscalculating the weight of catch
to be delivered relative to the amount of IFQ available. Because
harvesters do not know the precise weight of a delivery of crab,
estimates made onboard the vessel using a sample of average weight may
be lower than the actual delivery weight. If a harvester is making his
or her last fishing trip for a season and insufficient IFQ is available
in his or her account, an overage would occur. In most cases,
harvesters attempted to account for potential overages by maintaining
catch below their IFQ holdings, slightly underharvesting the maximum
amount of crab.
Similarly, processors were prohibited from receiving more Class A
IFQ than the amount of unused IPQ that they held (see regulations at
Sec. 680.7(a)(5)). Generally, processors establish relationships with
specific harvesters before crab fishing begins and may not have unused
IPQ available to receive crab from harvesters that do not have an
established relationship with that processor. Under the provisions of
the CR Program's Arbitration System, harvesters can choose to commit
their Class A IFQ to match the IPQ held by processors (see regulations
at Sec. 680.20). Once IFQ shares are committed and matched with a
specific amount of IPQ, that IPQ cannot be matched to another
harvester's IFQ without first removing the match from the harvester who
committed delivery of Class A IFQ crab to the IPQ held by that
processor. Removing a match of Class A IFQ and IPQ requires the consent
of the harvester. Therefore, it is possible that a processor holding
IPQ may not have any available unmatched IPQ if a harvester were to
deliver more Class A IFQ than the amount specified on his IFQ permit.
For this reason, processors typically refuse to accept a delivery of
Class A IFQ that is greater than the amount of available unmatched IPQ.
Although matching Class A IFQ and IPQ among the numerous harvesters
and processors can be complicated, overages are uncommon. In the first
two crab fishing years under the CR Program (2005-2006 and 2006-2007),
most of the IFQs were harvested and few overages occurred. There were
16 overages in the first year and 25 in the second year under the CR
Program. These overages represented less than 0.1 percent (1/1000) of
the TAC in each year.

Effects of the Action

The following sections briefly describe the effects of allowing
post-delivery transfers to cover overages of IPQ as well as Class A
IFQ, Class B IFQ, C shares, and CPO IFQ. Additional discussion of the
rationale for and effects of this action is provided in the preamble to
the proposed rule published on December 12, 2008 (73 FR 75661), and is
not repeated here.
Under this final rule, there is no limit on the size of a post-
delivery transfer or on the number of post-delivery transfers a person
could make. However, a person may not begin a new fishing trip for a
crab QS fishery (e.g., snow crab) if any of the IFQ accounts of the IFQ
permits available to be used on a vessel are zero or negative for that
crab QS fishery, and no person may have a negative balance in an IFQ or
IPQ account after June 30, the end of a crab fishing year. For IFQ
holders, no person may begin a new fishing trip in a crab QS fishery
until the overage is accounted for and the IFQ balances of the persons
onboard that vessel for that crab QS fishery are positive.
The final rule defines the term ``fishing trip'' for crab QS
fisheries as the period beginning when a vessel operator commences
harvesting crab in a crab QS fishery and ending when the vessel
operator offloads or transfers any crab, whether processed or
unprocessed, from that crab QS fishery from that vessel. Under the
definition in this final rule, a fishing trip starts with the first
harvest in a crab QS crab fishery and continues until the beginning of
a delivery of crab from a catcher vessel, or the beginning of
offloading or transferring of processed crab from a catcher/processor.
This definition ensures that a vessel operator cannot commence fishing
for a crab QS fishery on any vessel until all the IFQ accounts of all
IFQ permits used onboard that vessel are positive for that crab QS
fishery. This provision is intended to discourage harvesters from
continuing to debit crab against their IFQ account for numerous fishing
trips and run an increasingly negative balance without ensuring that
there is adequate available unused IFQ that can be transferred to cover
that negative balance. This provision allows a vessel operator to begin
a fishing trip for one crab QS fishery (e.g., snow crab) provided the
harvester had unused IFQ in that fishery, even if that harvester had a
negative balance in another crab QS fishery (e.g., Bristol Bay red king
crab). However, in this example, if a vessel operator harvested (i.e.,
caught and retained) any Bristol Bay red king crab while fishing for
snow crab, the harvester would be in violation of the regulations. This
final rule does not modify existing regulations that require that IFQ
issued to a cooperative may be transferred only between cooperatives,
and that IFQ held outside of cooperatives may be transferred only to
another person who holds that IFQ outside of a cooperative.
This action minimizes the risk of negative IFQ or IPQ accounts by
prohibiting an IFQ or IPQ holder from maintaining a negative balance in
an IFQ or IPQ account after the end of the crab fishing year for which
that IFQ or IPQ account was issued. This final rule requires that all
post-delivery transfers of IFQ or IPQ must be completed by June 30 of
each year, the end of the crab fishing year. Overages that are not
covered by June 30 of each year can be subject to a penalty or other
enforcement action. Allowing post-delivery transfers will likely reduce
the number of overages that result in forfeiture of catch and other
penalties.
Overall, NMFS anticipates that the number of overages at the time
of landing may increase slightly under this action, but overages
subject to penalty should decline. Harvesters are likely to

[[Page 41094]]

realize production efficiency gains under this action, which allows
greater flexibility in harvesting. Under the status quo, harvesters may
be required to wait in port or remain idle on the fishing grounds until
a transfer can be processed and a positive IFQ balance is available.
Under this final rule, harvesters could finish their fishing trip and
settle the balance when back in port. Some production efficiency gains
should be realized by allowing harvesters to more precisely harvest the
total IFQ allocation with fewer uncovered overages. Harvesters are also
likely to benefit from a reduction in the number of overage violations,
which should be reduced through post-delivery transfers. It is unlikely
that harvesters will have excessive overages by unreasonable reliance
on the provision for post-delivery transfers because the majority of
all IFQ issued in crab QS fisheries is Class A IFQ, which harvesters
can choose to match with IPQ held by processors before crab fishing
begins (see IFQ Overages Prior to This Final Rule Implementing
Amendment 28 section above). Persons holding IFQ outside of a
cooperative may have a limited opportunity to make post-delivery
transfers because most IFQ allocations are assigned to cooperatives.
This action has limited impacts on processors. Processors should
have few overages, since overages can be avoided by simply refusing
delivery of landings in excess of IPQ holdings. Only when a harvester
has an IFQ overage that is covered by a post-delivery transfer of Class
A IFQ might a processor need to obtain IPQ to cover an overage.
This action requires NMFS to debit IPQ accounts if a processor
accepts delivery of Class A IFQ in excess of the amount of Class A IFQ
that is matched with that processor. Prior to this action, NMFS has not
debited an IPQ account if an excess of Class A IFQ was delivered
because NMFS did not wish to encourage waste by having processors
refuse delivery of Class A IFQ, or debit an IPQ account of a processor
and potentially cause the processor to exceed his IPQ account due to
the actions of a harvester. However, with this final rule, NMFS will
debit the IPQ account of a processor that accepts Class A IFQ in excess
of the amount in its IPQ account. At the time of landing, NMFS will
assume the landing overage will be covered by a subsequent post-
delivery transfer to balance the IPQ account.

Summary of Regulatory Changes

This action makes the following changes to the existing regulatory
text at 50 CFR part 680:
Add a new definition for the term ``fishing trip'' at
Sec. 680.2;
Modify the existing prohibition at Sec. 680.7(a)(5) to
clarify that a person may not receive Class A IFQ greater than the
amount of unused IPQ that person holds in a crab QS fishery unless they
subsequently receive unused IPQ before the end of the crab fishing year
to ensure their final yearly IPQ balance is not negative;
Modify the existing prohibition at Sec. 680.7(e)(2) to
clarify that a person cannot begin a fishing trip with a vessel in a
crab QS fishery if the total amount of unharvested crab IFQ that is
currently held in the IFQ accounts of all crab IFQ permit holders or
Crab IFQ Hired Masters onboard that vessel for that crab QS fishery is
zero or less; and
Add a prohibition at Sec. 680.7(e)(3) to prohibit a
person from having a negative balance in an IFQ or IPQ account for a
crab QS fishery after the end of the crab fishing year for which that
IFQ or IPQ permit was issued.

Notice of Availability and Proposed Rule

NMFS published the notice of availability for Amendment 28 on
November 25, 2008 (73 FR 71598), with a public comment period that
closed on January 24, 2009. NMFS published the proposed rule to
implement Amendment 28 on December 12, 2008 (73 FR 75661), and the
public comment period closed on January 26, 2009. Two public comments
were received regarding Amendment 28 and the proposed rule. These are
summarized and responded to below.

Response to Comments

Comment 1: The commenter raises general concerns about fisheries
management, asserting that fishery policies have not been to the
benefit of American citizens.
Response: The comment provided opinions of the federal government's
general management of marine resources and was not specific to the
proposed action. The comment did not raise new issues or concerns that
have not been addressed in the RIR/IRFA prepared to support this action
or the preamble to the proposed rule.
Comment 2: The commenter asserts that NMFS is biased and should not
be allowed to manage fisheries.
Response: This comment is not specifically related to the proposed
rule and recommends broad changes to fisheries management that are
outside of the scope of this action.

Changes from the Proposed Rule

NMFS did not make any substantive changes from the proposed to the
final rule but made one editorial change to the regulatory language at
Sec. 680.7(e)(2) for clarity.

Classification

The Assistant Administrator for Fisheries, NOAA, has determined
that Amendment 28 is necessary for the conservation and management of
the BSAI crab fisheries and that it is consistent with the Magnuson-
Stevens Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A FRFA was prepared that describes the economic impact that this
action has on small entities. The RIR/FRFA prepared for this final rule
is available from NMFS (see ADDRESSES). The RIR/FRFA prepared for this
final rule incorporates by reference an extensive RIR/FRFA prepared for
Amendments 18 and 19 to the FMP that detailed the impacts of the CR
Program on small entities.
The FRFA for this action describes the action, why this action is
being proposed, the objectives and legal basis for the final rule, the
type and number of small entities to which the final rule applies, and
projected reporting, recordkeeping, and other compliance requirements
of the final rule. It also identifies any overlapping, duplicative, or
conflicting federal rules and describes any significant alternatives to
the final rule that accomplish the stated objectives of the Magnuson-
Stevens Act and other applicable statutes, and that would minimize any
significant adverse economic impact of the final rule on small
entities. The description of the action, its purpose, and its legal
basis are described in the preamble and are not repeated here.
The proposed rule for this action was published on December 12,
2008 (73 FR 75661). An IRFA was prepared and summarized in the
classifications section of the preamble to the proposed rule. The
public comment period ended on January 26, 2009. NMFS received two
public submissions on Amendment 28 and the proposed rule. These
comments did not address the IRFA.
For purposes of a FRFA, the Small Business Administration (SBA) has
established that a business involved in fish harvesting is a small
business if it is independently owned and operated, not dominant in its
field of operation (including its affiliates), and has combined annual
gross receipts not in excess of $4.0 million for all its

[[Page 41095]]

affiliated operations worldwide. A seafood processor is a small
business if it is independently owned and operated, not dominant in its
field of operation, and employs 500 or fewer persons on a full-time,
part-time, temporary, or other basis at all its affiliated operations
worldwide.
Because the SBA does not have a size criterion for businesses that
are involved in both the harvesting and processing of seafood products,
NMFS has in the past applied and continues to apply SBA's fish
harvesting criterion for those businesses because catcher/processors
are first and foremost fish harvesting businesses. Therefore, a
business involved in both the harvesting and processing of seafood
products is a small business if it meets the $4.0 million criterion for
fish harvesting operations. NMFS currently is reviewing its small
entity size classification for all catcher/processors in the United
States. However, until new guidance is adopted, NMFS will continue to
use the annual receipts standard for catcher/processors.
The FRFA contains a description and estimate of the number of small
entities to which this final rule will apply. The FRFA estimates that
44 entities received IFQ allocations. Of these, 31 were considered
small entities. Estimates of small entities holding IPQ are based on
the number of employees of IPQ holding entities. Currently, 24 entities
receive IPQ allocations. Of these, 13 are considered small entities.
This action directly regulates all holders of IFQ and IPQ, who
could engage in post-delivery transfers to cover overages. Estimates of
the number of small entities holding IFQ are based on estimates of
gross revenues. Since many IFQs are held by cooperatives, landings data
from the most recent season for which data are available in the crab
fisheries (2006-2007) were used to estimate the number of small
entities.
All of the directly regulated entities are expected to benefit from
this action relative to the status quo alternative because the action
allows greater flexibility and a period of time in which to reconcile
overages. Class A IFQ holders are expected to benefit the most because
Class A IFQ comprises the majority of all IFQ issued in crab QS
fisheries, and this action will provide all IFQ holders greater
flexibility to maximize harvests of their allocations without risking
overages. Persons holding IFQ outside of a cooperative are expected to
benefit the least from this action because only a small portion of the
total IFQ issued is issued to persons who hold IFQ outside of
cooperatives, and they have a limited pool of persons with whom to
negotiate transfers.
Among the three alternatives considered for this action,
Alternative 2 (implemented by this rule) would best minimize potential
adverse economic impacts on the directly regulated entities. Under the
status quo (Alternative 1), no post-delivery transfers would be allowed
and small entities would continue to be penalized for overages.
Alternative 3 would have allowed post-delivery transfers, but with more
limitations and restrictions than Alternative 2, the alternative that
provides small entities the most flexibility to cover overages.

Recordkeeping and Reporting Requirements

This final rule does not change existing reporting, recordkeeping,
or other compliance requirements. Any person wishing to cover an
overage will be required to engage in a transfer of IFQ (or IPQ, in the
case of a processor). The required reporting and recordkeeping for a
post-delivery transfer is the same as for any other transfer of IFQ (or
IPQ). NMFS' Restricted Access Management (RAM) Division will continue
to oversee share accounts and share use. At the time of landing, RAM
will maintain a record of any overage, but instead of reporting
overages to NOAA Office of Law Enforcement immediately, RAM will defer
reporting until June 30, the end of the crab fishing year. RAM will use
the same process for post-delivery transfers as currently used under
regulations at Sec. 680.41.

Small Entity Compliance Guide

NMFS has posted a small entity compliance guide on its website at
http://alaskafisheries.noaa.gov/sustainablefisheries/crab/rat/progfaq.htm to satisfy the Small Business Regulatory Enforcement
Fairness Act of 1996 requirement for a plain language guide to assist
small entities in complying with this rule.

List of Subjects in 50 CFR Part 680

Alaska, Fisheries.

Dated: August 10, 2009.
John Oliver,
Deputy Assistant Administrator For Operations, National Marine
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 680 is amended as
follows:

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

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

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

0
2. In Sec. 680.2, the term ``Fishing trip for purposes of Sec.
680.7(e)(2)'' is added in alphabetical order to read as follows:

Sec. 680.2 Definitions.

* * * * *
Fishing trip for purposes of Sec. 680.7(e)(2) means the period
beginning when a vessel operator commences harvesting crab in a crab QS
fishery and ending when the vessel operator offloads or transfers any
processed or unprocessed crab in that crab QS fishery from that vessel.
* * * * *

0
3. In Sec. 680.7, paragraphs (a)(5) and (e)(2) are revised, and
paragraph (e)(3) is added to read as follows:

Sec. 680.7 Prohibitions.

* * * * *
(a) * * *
(5) Receive any crab harvested under a Class A IFQ permit in excess
of the total amount of unused IPQ held by the RCR in a crab QS fishery
unless that RCR subsequently receives unused IPQ by transfer as
described under Sec. 680.41 that is at least equal to the amount of
all Class A IFQ received by that RCR in that crab QS fishery before the
end of the crab fishing year for which an IPQ permit was issued.
* * * * *
(e) * * *
(2) Begin a fishing trip for crab in a crab QS fishery with a
vessel if the total amount of unharvested crab IFQ that is currently
held in the IFQ accounts of all crab IFQ permit holders or Crab IFQ
Hired Masters aboard that vessel in that crab QS fishery is zero or
less.
(3) Have a negative balance in an IFQ or IPQ account for a crab QS
fishery after the end of the crab fishing year for which an IFQ or IPQ
permit was issued.
* * * * *
[FR Doc. E9-19567 Filed 8-13-09; 8:45 am]
BILLING CODE 3510-22-S