[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:
    <bullet> Add a new definition for the term ``fishing trip'' at 
Sec.  680.2;
    <bullet> 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;
    <bullet> 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
    <bullet> 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