Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 49417 

that all information be accompanied by: 

(1) Supporting documentation such as 

maps, bibliographic references, or 

reprints of pertinent publications; and 

(2) the submitter’s name, address, and 

any association, institution, or business 

that the person represents. 

If, after the status review, we 

determine that listing the saltmarsh 

topminnow is warranted, we will 

propose critical habitat (see definition 

in section 3(5)(A) of the ESA), under 

section 4 of the ESA, to the maximum 

extent prudent and determinable at the 

same time we propose to list the 

species. Therefore, within the 

geographical range currently occupied 

by the saltmarsh topminnow, we request 

data and information on: 

(1) What may constitute ‘‘physical or 

biological features essential to the 

conservation of the species’’; 

(2) Where such physical and 

biological features are currently found; 

and 

(3) Whether any of these features may 

require special management 

considerations or protection. 

In addition, we request data and 

information on ‘‘specific areas outside 

the geographical area occupied by the 

species’’ that are ‘‘essential to the 

conservation of the species.’’ Please 

provide specific comments and 

information as to what, if any, critical 

habitat you think we should propose for 

designation if the species is proposed 

for listing, and why such habitat meets 

the requirements of section 4 of the 

ESA. 

References Cited 

A complete list of all references is 

available upon request from the 

Protected Resources Division of the 

NMFS Southeast Regional Office or the 

USFWS Panama City Ecological Office 

(see ADDRESSES). 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: July 21, 2011. 

Gregory E. Siekaniec, 

Acting Director, U.S. Fish and Wildlife 

Service. 

Dated: August 5, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatoru Programs, National Marine 

Fisheries Service. 

[FR Doc. 2011–20335 Filed 8–9–11; 8:45 am] 

BILLING CODE 3510–22–P; 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 100819383–0386–01] 

RIN 0648–BA18 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands Management Area; 

Limited Access Privilege Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

that would implement Amendment 93 

to the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(FMP). This proposed rule would 

amend the Bering Sea and Aleutian 

Islands Amendment 80 Program to 

modify the criteria for forming and 

participating in a harvesting 

cooperative. This action is necessary to 

encourage greater participation in 

harvesting cooperatives, which enable 

members to more efficiently target 

species, avoid areas with undesirable 

bycatch, and improve the quality of 

products produced. This action is 

intended to promote the goals and 

objectives of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, the Fishery Management Plan, and 

other applicable law. 

DATES: Comments must be received no 

later than September 9, 2011. 

ADDRESSES: Send comments to James W. 

Balsiger, Ph.D., Administrator, Alaska 

Region, NMFS, Attn: Ellen Sebastian. 

You may submit comments, identified 

by RIN 0648–BA18, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

• Fax: (907) 586–7557, Attn: Ellen 

Sebastian. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Hand Delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in required fields 

if you wish to remain anonymous). 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe portable 

document file (pdf) formats only. 

Copies of Amendment 93, the 

Environmental Assessment (EA), 

Regulatory Impact Review (RIR), and the 

Initial Regulatory Flexibility Analysis 

(IRFA)—collectively known as the 

Analysis—for this action are available 

from the Alaska Region Web site at 

http://alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Gwen Herrewig, (907) 586–7091. 

SUPPLEMENTARY INFORMATION: The 

groundfish fisheries in the exclusive 

economic zone off Alaska are managed 

under the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(BSAI FMP). The FMP was prepared by 

the North Pacific Fishery Management 

Council (Council) under the MagnusonStevens Fishery Conservation and 

Management Act (MSA). Amendment 

80 to the BSAI FMP implemented the 

Amendment 80 Program. Regulations 

implementing Amendment 80 were 

published on September 14, 2007 (72 FR 

52668). These regulations are located at 

50 CFR part 679. 

Background 

The Amendment 80 program is 

commonly known as a limited access 

privilege program (LAPP). Eligible 

fishery participants may receive 

exclusive access to specific fishery 

resources if certain conditions are met. 

Under the Amendment 80 Program, 

NMFS issues a quota share (QS) permit 

to a person holding the catch history of 

an original qualifying non-American 

Fisheries Act (AFA) trawl catcher/ 

processor that met specific criteria 

designated by Congress under the 

Capacity Reduction Program (CRP) (Pub. 

L. 108–447). NMFS determined that 28 

vessels met the criteria specified in the 

CRP. These vessels comprise the 

originally qualifying Amendment 80 

vessels. NMFS determined the amount 

of QS issued based on the catch history 

of six Amendment 80 species (Atka 

mackerel, Aleutian Islands Pacific ocean 

perch, flathead sole, Pacific cod, rock 

sole, and yellowfin sole) in the Bering 

Sea and Aleutian Islands Management 

Area (BSAI), from 1998 through 2004, 

derived from the 28 originally 


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qualifying non-AFA trawl catcher 

processors. 

A QS permit details the total number 

of QS units for each of the six allocated 

Amendment 80 species. A QS permit 

may not be subdivided, and QS 

allocations of specific QS species may 

not be transferred or otherwise 

reassigned. Once NMFS issues a QS 

permit, it may not be transferred 

separately from the originally qualifying 

Amendment 80 vessel to which it has 

been assigned, except under specific 

conditions. 

NMFS may issue a QS permit based 

on the catch history of each of the 28 

originally qualifying Amendment 80 

vessels to either the owner of the 

originally qualifying Amendment 80 

vessel, the owner of a replacement 

vessel if the original qualifying 

Amendment 80 vessel has been lost, or 

the holder of the License Limitation 

Program (LLP) license issued to the 

originally qualifying Amendment 80 

vessel The Amendment 80 Program 

defined a specific LLP license for each 

originally qualifying Amendment 80 

vessel to which a QS permit may be 

assigned in cases where a vessel has 

been lost. Additional details on the 

transfer of QS permits to LLP licenses is 

provided in the final rule to implement 

Amendment 80 and are not repeated 

here (September 14, 2007; 72 FR 52668). 

NMFS issued QS to the owner of the 

Amendment 80 vessel in most cases. As 

of the publication of this proposed rule, 

NMFS has issued QS permits based on 

the catch history of 27 of the 28 

originally qualifying Amendment 80 

vessels. One originally qualifying 

Amendment 80 vessel owner did not 

submit an application as of the 

publication date of this rule. 

Under the Amendment 80 Program, 

NMFS allocates a specific portion of the 

BSAI total allowable catch (TAC) to the 

Amendment 80 sector for each of the six 

defined Amendment 80 species. NMFS 

allocates the remainders of the TACs for 

Atka mackerel, Pacific cod, Pacific 

ocean perch, and yellowfin sole to nonAmendment 80 vessels participating in 

the BSAI trawl fisheries. In addition, 

NMFS allocates a specific portion of the 

allowable bycatch of BSAI halibut, 

Bristol Bay red king crab, snow crab, 

and Tanner crab to the Amendment 80 

sector. This allowable bycatch is 

commonly known as prohibited species 

catch (PSC) because these species may 

not be retained, but are known to be 

incidentally taken in BSAI trawl 

fisheries. NMFS will limit groundfish 

fishing in the BSAI if the PSC limit for 

a species is reached. The specific 

groundfish species for which NMFS 

issues a QS permit, and the PSC species 

assigned to the Amendment 80 sector, 

are shown in Table 1. 

TABLE 1—GROUNDFISH AND PSC 

SPECIES ASSIGNED TO THE AMENDMENT 80 PROGRAM

Groundfish species 

assigned to the 

Amendment 80 sector 

PSC species assigned to the Amendment 80 sector 

Aleutian Islands Pacific ocean perch.Pacific halibut. 

Atka mackerel ........... Zone 1 Bristol Bay 

red king crab. 

Flathead sole ............ Zone 1 Chionoecetes 

opilio crab. 

Pacific cod ................. Zone 2 C. opilio crab. 

Rock sole .................. Zone 1 C. bairdi crab. 

Yellowfin sole ............ Zone 2 C. bairdi crab. 

The specific amounts of the TAC and 

PSC limits assigned to the Amendment 

80 sector and the non-Amendment 80 

BSAI trawl fishery on an annual basis 

are defined in regulations at 50 part 679 

and are not repeated here (see Tables 33, 

34, and 35 to part 679). The amount of 

the TAC and PSC assigned to the 

Amendment 80 sector is further divided 

between those who participate in 

Amendment 80 harvesting cooperatives, 

and those who participate in the 

‘‘Amendment 80 limited access 

fishery.’’ 

Generally, the Amendment 80 

Program is intended to facilitate the 

formation of cooperatives. As described 

in Section 2 of the Analysis, cooperative 

management improves fishery 

management, because Amendment 80 

participants who join a cooperative 

receive cooperative quota (CQ), which 

are exclusive harvest privileges for a 

portion of these fishery resources. The 

allocation of CQ allows vessel operators 

to make operational choices to improve 

fishing practices and reduce discards of 

fish, because the incentives to maximize 

catch rates to capture a share of the 

available catch are removed. 

Cooperatives fishing under an exclusive 

harvest privilege can tailor their 

operations to more efficiently target 

species, avoid areas with undesirable 

bycatch, and improve the quality of 

products produced. Participants in the 

limited access fishery do not receive an 

exclusive harvest allocation, and may 

have little incentive to coordinate 

harvest strategies if they perceive a 

benefit by competing with other 

participants in a race for fish. 

A person who chooses to join a 

cooperative must designate the catch 

derived from his QS to the cooperative, 

the specific vessels that will be fishing 

for that cooperative, and the LLP 

licenses assigned to each designated 

vessel. For example, a person wishing to 

participate in an Amendment 80 

cooperative may assign all, or a portion, 

of the QS permits held by that person 

to an Amendment 80 cooperative by 

November 1 of each year to be eligible 

to fish in that cooperative for the 

following calendar year. Once a person 

assigns a QS permit, Amendment 80 

vessel, or LLP license to a cooperative 

for a year, that person cannot reassign 

that QS permit, vessel, or LLP license to 

another cooperative or to the limited 

access fishery for that same calendar 

year. A person can also assign QS 

permits to the Amendment 80 limited 

access fishery if that person is unable or 

unwilling to meet the requirements 

established by an Amendment 80 

cooperative. NMFS assigns any QS 

permits, vessels, and LLP licenses not 

assigned to a cooperative to the 

Amendment 80 limited access fishery 

by default. 

The proportion of the TAC that is 

assigned to an Amendment 80 

cooperative is based on the amount of 

QS held by the members of the 

cooperative relative to the total 

Amendment 80 QS pool for a given 

groundfish fishery. For example, if a 

cooperative was comprised of members 

holding QS permits with a total number 

of QS units equaling 40 percent of the 

Amendment 80 QS pool in the 

yellowfin sole fishery, that cooperative 

would receive CQ to harvest 40 percent 

of the annual total allowable catch 

(TAC) of yellowfin sole that is assigned 

to the Amendment 80 sector for that 

year. A similar calculation is made for 

all other Amendment 80 species and 

allocation of PSC limits. Any catch of 

groundfish or PSC species that is 

assigned CQ is debited from a 

cooperative’s CQ account. NMFS 

allocates TAC and PSC limits first to 

cooperatives. The remaining TAC and 

PSC limits after allocation to 

cooperatives is available collectively to 

the participants in the Amendment 80 

limited access fishery. 

The Proposed Action 

The proposed action would result in 

two changes to the Amendment 80 

Program. First, it would reduce the 

minimum number of persons and 

licenses required to form a harvesting 

cooperative. Second, it would require 

that a person holding multiple QS 

permits, Amendment 80 vessels, and 

LLP licenses assign all those QS 

permits, vessels, and LLP licenses to 

either one or more cooperatives, or the 

limited access fishery, but not to both a 

cooperative and the limited access 

fishery. If approved, this second 

provision would not be applicable until 


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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 49419 

the first fishing year 2 years after the 

effective date of the final rule. 

Modifying Cooperative Formation 

Standards 

The first aspect of this proposed 

action would allow a cooperative to 

form with a minimum of two unique 

persons holding a total of at least seven 

QS permits. The current requirement is 

that a minimum of three unique persons 

and nine QS permits must be assigned 

to a cooperative. Reducing the number 

of unique persons and number of QS 

permits could provide additional 

opportunities for QS holders to establish 

cooperative relationships that could 

reduce the number of participants 

engaged in the race for fish. 

Since the implementation of the 

Amendment 80 Program in 2008, some 

Amendment 80 sector participants have 

expressed concern that the current 

cooperative formation requirements 

could impede participants from joining 

a cooperative and receiving an exclusive 

allocation of Amendment 80 species. 

Most participants in the Amendment 80 

sector have successfully established a 

cooperative in the first 3 years of the 

program. However, some participants 

have expressed concern that, over the 

long term, cooperative formation 

standards may put them at a 

disadvantage. 

Section 2.4 of the Analysis prepared 

for this action notes that vessel owners 

would be likely to have weakened 

negotiating leverage when seeking 

membership in a cooperative if they 

cannot be competitive in the limited 

access fishery and if fishing options in 

the Gulf of Alaska would not be viable. 

Participants may find it difficult to 

receive the benefits of cooperative 

management if they cannot reach 

agreement on negotiated terms, if the 

limited access fishery is not an 

economically viable option, or if 

members of a cooperative are able to 

derive some benefit from forcing an 

entity into the limited access fishery. 

Relaxing cooperative formation 

standards either by reducing the number 

of QS permits that must be assigned or 

the number of unique vessel owners 

required could: (1) Provide additional 

opportunities to QS holders to form 

cooperatives because more relationships 

are possible; (2) diminish the 

negotiating leverage of vessel owners 

who may be necessary to meet the 

threshold requirements under more 

stringent cooperative formation 

standards; (3) reduce the potential risk 

of any one company being unable to 

negotiate settlement and be able to fish 

only in the limited access fishery; and 

(4) reduce the incentive for members of 

a cooperative to attempt to create 

conditions that are unfavorable for 

certain fishery participants to form a 

cooperative. 

Section 2.4 estimates that there are 

approximately nine unique persons in 

the Amendment 80 sector holding 27 

QS permits. Most, but not all, of these 

persons have joined a cooperative. The 

Alaska Seafood Cooperative (AKSC), 

formerly known as the Best Use 

Cooperative (BUC), includes most of the 

participants in the Amendment 80 

sector. It is comprised of seven unique 

persons holding 17 to 18 QS permits 

annually during 2008 through 2011. The 

Amendment 80 limited access fishery 

had two to four unique persons holding 

seven to nine QS permits annually 

during 2008 through 2010. Recent 

business transactions in the 

Amendment 80 sector have resulted in 

a greater consolidation in the ownership 

of the Amendment 80 sector. In 2010, 

one of the QS permits that had been 

assigned to the limited access fishery 

was transferred to a participant in 

AKSC. In 2011, all Amendment 80 QS 

holders participated in a cooperative, 

with most participants joining AKSC. A 

second cooperative representing nine 

QS permits held by four unique persons 

was assigned to the Alaska Groundfish 

Cooperative (AGC). Two of the members 

of AGC own multiple QS permits and 

participate in both the AKSC and AGC. 

Conditions in the Amendment 80 

sector suggest that cooperative 

formation may continue to be 

challenging even though two 

cooperatives formed in 2011. For 

example, some AKSC members have 

raised concerns that accepting members 

into a cooperative could adversely affect 

the cooperative’s internal management 

agreements and expose existing 

members to a potentially increased risk 

of enforcement actions under joint and 

several liability provisions because of 

perceived concerns about the past 

enforcement record of some 

Amendment 80 sector participants. 

The Council considered extensive 

testimony and input from the 

Amendment 80 sector during the 

development of the proposed action, as 

well as a review of the suite of decisions 

that affect cooperative formation and the 

potential incentives to include or 

exclude a member from a cooperative. 

Section 2.3.8 of the Analysis describes 

these factors. The Council developed 

the alternatives listed below: 

• Alternative 1: Status quo. A 

minimum of three unique QS holders 

holding at least nine QS permits are 

required to form a cooperative. 

• Alternative 2: Reduce the number of 

unique QS holders required to form a 

cooperative from the existing three QS 

holders to two or one unique QS holder. 

• Alternative 3: Reduce the number of 

QS permits required to form a 

cooperative from the existing nine 

permits to eight, seven, six, or three 

permits. 

• Alternative 4: Reduce both the 

number of unique QS holders and the 

number of QS permits required to form 

a cooperative (combination of 

Alternatives 2 and 3 above). 

• Alternative 5: Allow a cooperative 

to form with a minimum of three unique 

QS holders holding at least nine QS 

permits (status quo), or a single or 

collective group of entities that 

represent 20 percent, 25 percent, or 30 

percent of the sector QS. 

• Alternative 6: Require that a 

cooperative accept all persons who are 

otherwise eligible to join a cooperative 

subject to the same terms and 

conditions as all other members. 

Section 2.4 of the Analysis notes that 

less strict cooperative formation 

standards might provide greater 

opportunities for cooperatives to form, 

in general, and greater opportunities for 

any specific participant to find 

arrangements that allow them to 

participate in a cooperative. Overall, 

Section 2.4 of the Analysis concludes 

that relaxing the cooperative formation 

standard would provide an increased 

likelihood that a greater proportion of 

the TAC assigned to the Amendment 80 

sector is harvested under cooperative 

management. 

Ultimately, the Council chose 

Alternative 4 and the option for a 

minimum of two unique persons and 

seven QS permits. The Council chose an 

alternative that would provide some 

additional flexibility to the Amendment 

80 sector to form cooperatives, without 

requiring drastic changes from the status 

quo structure of the most established 

cooperative, AKSC. The Council noted 

its preferred alternative would require 

more than one company to coordinate 

operations to receive an exclusive 

annual harvest allocation. The Council 

noted that maintaining a multi-company 

cooperative structure would extend the 

Council’s overall goal of enhancing 

coordination among a variety of 

different industry participants. 

Section 2.3.8 of the Analysis notes 

that the alternatives considered, 

including the Council’s preferred 

alternative that comprises the proposed 

action, are consistent with the overall 

goals of the Amendment 80 Program, 

including the goal of allocating 

groundfish species to harvesting 

cooperatives to encourage fishing 

practices with lower discard rates and to 

improve the opportunity for increasing 


srobinson on DSK4SPTVN1PROD with PROPOSALS
49420 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 

the value of harvested species while 

lowering costs. The Council noted that 

modifying the cooperative standards 

originally selected under Amendment 

80 to reflect the changing negotiating 

positions of various industry 

participants was responsive to the best 

available information on current fishery 

conditions. Public input during the 

Council’s consideration of the proposed 

action generally supported the reduced 

cooperative formation standard as a 

mechanism to provide additional 

opportunities for cooperative formation. 

NMFS agrees with the Council’s 

rationale for this proposed change. This 

proposed rule would not modify the 

specific species that are allocated or the 

amount of the TAC allocated to the 

Amendment 80 Program. 

Requiring QS To Be Assigned to 

Cooperatives or the Limited Access 

Fishery 

The second modification under this 

proposed action would require that a 

person assign all QS permits either to a 

cooperative or to the limited access 

fishery, but not to both during the same 

calendar year. If this provision is 

approved, it would not apply until the 

first fishing year 2 years after a final 

rule, if implemented, becomes effective. 

Excluding a person from cooperative 

membership could benefit a 

cooperative, or specific members of a 

cooperative, who choose to participate 

in both a cooperative and the limited 

access fishery. For example, if a 

cooperative member who holds multiple 

QS permits and vessels can assign one 

vessel and QS permit to the limited 

access fishery and another vessel and 

QS permit to a cooperative, that member 

could harvest more fish in the limited 

access fishery than would be derived 

from their QS if it were assigned to a 

cooperative. A person participating in 

both a cooperative and the limited 

access fishery has an incentive to 

exclude participants in the limited 

access fishery from joining a cooperative 

or creating an additional cooperative. 

For example, a person participating in a 

cooperative and the limited access 

fishery could seek to exclude a person 

from fishing in a cooperative if the 

person to be excluded was unlikely to 

be able to join another cooperative. 

Under that scenario, the person 

excluded from a cooperative could be 

forced into the Amendment 80 limited 

access fishery. If the person 

participating in the cooperative also 

assigned a vessel to the Amendment 80 

limited access fishery that was capable 

of effectively competing against the 

other Amendment 80 limited access 

fishery participants, that person could 

maximize their catch in a race for fish. 

Under that scenario, a person with 

participation in both an Amendment 80 

cooperative and the limited access 

fishery would have little incentive to 

allow a person to join a cooperative 

because they would lose access to fish 

that would otherwise be available in the 

Amendment 80 limited access fishery. 

Data from the first three years of the 

Amendment 80 Program indicate that 

one vessel owner with multiple vessels 

and QS permits has chosen to 

participate in both a cooperative and the 

limited access fishery. During the 

development of Amendment 93, 

participants in the limited access fishery 

testified that they have sought to join 

the existing cooperative (at that time, 

the Best Use Cooperative), but were 

unable to do so. The Council 

determined, and NMFS agrees, that this 

provision would reduce the incentive 

for a cooperative member to exclude 

another person from forming a 

cooperative in order to force them into 

a race for fish in the limited access 

fishery. 

The requirement that a vessel owner 

and QS holder assign all QS permits and 

vessels to either a cooperative or the 

limited access fishery would not apply 

until the first fishing year 2 years after 

the final rule would be effective. For 

example, if the final rule became 

effective in October 2011, this 

requirement would not apply until the 

2014 fishing year, but QS holders would 

have to assign all QS permits and 

vessels to one or more cooperatives or 

to the limited access fishery by the 

Amendment 80 annual cooperative 

application deadline of November 1, 

2013. The proposed rule text 

implementing this provision uses the 

2014 fishing year as the first year in 

which this provision would be 

applicable because, it assumes the final 

rule for this action would be published 

by the end of 2011. The Council 

determined, and NMFS agrees, that this 

2-year delay would provide vessel 

owners and QS holders time to establish 

relationships to ensure that all QS 

permits and vessels could be assigned to 

either the limited access fishery or a 

cooperative. The 2-year delay would 

allow vessel owners to ensure that they 

are well-coordinated with other 

participants in the fishery and all of 

their QS permits can be assigned to 

either one or more cooperative, or the 

limited access fishery. Some industry 

participants have expressed concerns 

that the ‘‘all-in’’ nature of this 

requirement could create contentious 

and complicated cooperative 

negotiations if vessel owners are unable 

to enter all their vessels into a 

cooperative. If this provision becomes 

effective, NMFS would enforce this 

provision by not allowing the owner of 

multiple QS permits or vessels to assign 

QS permits or vessels to one or more 

cooperatives and the Amendment 80 

limited access fishery during the annual 

cooperative application process. 

Conceivably, if a vessel owner is not 

able to assign all vessels or QS permits 

to a cooperative, that vessel owner 

would be required to assign those 

vessels or permits to the limited access 

fishery. Based on the demonstrated 

ability of the Amendment 80 

participants to establish cooperatives, 

this scenario is unlikely. In 2011, both 

Amendment 80 cooperatives were 

comprised of vessel owners with a wide 

range of vessels. Their cooperative 

contracts govern the specific obligations 

that each member has and ensures that 

overall cooperative harvests meet those 

requirements. It is likely that these 

cooperative relationships will continue. 

The 2-year timeframe would provide the 

industry time to structure their 

cooperative contracts to incorporate 

‘‘all-in’’ provisions necessary to allow 

owners of multiple vessels and QS 

permits to maintain membership in a 

cooperative. 

Expected Effects of the Proposed Action 

The RIR describes the predicted 

effects of the proposed action on 

harvesters, processors, communities, 

management and enforcement, 

consumers, and the nation (see 

ADDRESSES). Only the effects of the 

proposed action on harvesters are 

described here. Overall, the proposed 

action would be expected to increase 

the potential for cooperative formation. 

Vessels fishing under a cooperative 

would realize the benefits of LAPP 

management, including a strong 

incentive to reduce the race for fish. 

Based on a preliminary review of the 

first 3 years of the Amendment 80 

Program (2008 through 2010) and past 

experience with cooperative-based 

management in other LAPPs (e.g., AFA, 

Central GOA Rockfish Program, and 

BSAI Crab Rationalization Program), 

participation in a cooperative is likely to 

allow optimization of harvest rates for 

product recovery and quality, reduce 

incentives to operate in adverse weather 

conditions, facilitate reductions of 

bycatch, and streamline operations to 

maximize profits. 

Recordkeeping and Reporting 

Requirements 

NMFS would continue to oversee the 

submission of cooperative applications 

and the issuance and transfer of CQ. The 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 49421 

proposed rule would not change the 

information required to be submitted by 

cooperative applicants. 

Classification 

The Assistant Administrator for 

Fisheries, NOAA, has determined that 

this proposed rule is consistent with 

Amendment 93, the FMP, the MSA, and 

other applicable laws, subject to further 

consideration after public comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

Initial Regulatory Flexibility Analysis 

(IRFA) 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA). Copies of the IRFA prepared 

for this proposed rule are available from 

NMFS (see ADDRESSES). The IRFA 

describes the economic impact this 

proposed rule, if adopted, would have 

on small entities. A description of the 

action, the reasons why it is being 

considered, and a statement of the 

objectives of, and the legal basis for, this 

action are contained in the SUMMARY

section of the preamble and are not 

repeated in detail here. The IRFA for 

this proposed action describes the 

reasons why this action is being 

proposed; describes the objectives and 

legal basis for the proposed rule; 

describes and estimates the number of 

small entities to which the proposed 

rule would apply; describes any 

projected reporting, recordkeeping, or 

other compliance requirements of the 

proposed rule; identifies any 

overlapping, duplicative, or conflicting 

Federal rules; and describes any 

significant alternatives to the proposed 

rule that accomplish the stated 

objectives of the MSA and any other 

applicable statutes, and that would 

minimize any significant adverse 

economic impact of the proposed rule 

on small entities. A summary of that 

analysis follows. 

Rationale, Objectives, and Legal Basis of 

the Proposed Rule 

The IRFA describes the reasons why 

this action is being proposed, describes 

the objectives and legal basis for the 

proposed rule, and discusses both small 

and other regulated entities to 

adequately characterize the fishery 

participants. The MSA is the legal basis 

for the proposed rule. The objectives of 

the proposed rule are to facilitate 

cooperative formation among the 

Amendment 80 sector to ensure that 

fishery participants can realize the 

intended benefits of fishing under an 

exclusive harvest privilege. The 

proposed rule would accomplish this 

goal by reducing the minimum number 

of persons and licenses required for 

cooperative formation under the 

Amendment 80 Program. NMFS expects 

the proposed action to provide 

additional opportunities for cooperative 

formation among participants in the 

Amendment 80 sector. 

Number of Small Entities To Which the 

Proposed Rule Would Apply 

The directly regulated entities under 

this proposed rule are holders of 

Amendment 80 QS. For purposes of an 

IRFA, 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 if it has 

combined annual gross receipts not in 

excess of $4.0 million for all its 

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 these 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 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. Even if additional catcher/ 

processors would have been identified 

as small entities under a revised smallentity size classification, NMFS would 

have analyzed the effect on small 

entities using the same methods that 

were used in the IRFA prepared for the 

proposed rule. NMFS considered the 

effects of the proposed rule and 

attempted to reduce costs to all directly 

regulated entities regardless of the 

number of small entities. 

The IRFA estimates that 28 non-AFA 

trawl catcher/processors could generate 

Amendment 80 QS, based on the 

provisions of the Amendment 80 

Program. Those persons who apply for 

and receive Amendment 80 QS are 

eligible to fish in the Amendment 80 

sector, and those QS holders would be 

directly regulated by the proposed 

action. Based on the known affiliations 

and ownership of the Amendment 80 

vessels, all but one of the Amendment 

QS holders would be categorized as 

large entities for the purpose of the RFA 

under the principles of affiliation, due 

to their participation in a harvest 

cooperative or through known 

ownership of multiple vessels, coownership and ‘‘shares’’ ownership 

among vessels, and other economic and 

operational affiliations. Thus, this 

analysis estimates that only one small 

entity would be directly regulated by 

the proposed action. It is possible that 

this one small entity could be linked by 

company affiliation to a large entity, 

which may then qualify that entity as a 

large entity, but complete information is 

not available to determine any such 

linkages. 

The estimate of the number of small 

entities is conservative. Other 

supporting businesses may also be 

indirectly affected by this action if it 

leads to fewer vessels participating in 

the fishery. These impacts are analyzed 

in the RIR prepared for this action (see 

ADDRESSES). 

Impacts on Directly Regulated Small 

Entities 

The proposed action would modify 

the cooperative formation standards and 

requirements for assigning QS and 

Amendment 80 vessels to either a 

cooperative or the limited access 

fishery. The overall impact to small 

entities is expected to be positive. 

Impacts from the proposed rule would 

accrue differentially (i.e., some entities 

could be negatively affected and others 

positively affected). The Council 

considered an extensive range of 

alternatives and options as it designed 

and evaluated the potential for changes 

to the Amendment 80 sector, including 

the ‘‘no action’’ alternative. 

Six alternative approaches for 

modifying cooperative formation criteria 

were considered. Alternative 1: Status 

quo. A minimum of three unique QS 

holders holding at least nine QS permits 

are required to form a cooperative. 

Alternative 2: Reduce the number of 

unique QS holders required to form a 

cooperative from the existing three QS 

holders to two or one unique QS holder. 

Alternative 3: Reduce the number of QS 

permits required to form a cooperative 

from the existing nine permits to eight, 

seven, six, or three permits. Alternative 

4: Reduce both the number of unique 

QS holders and the number of QS 

permits required to form a cooperative 

(combination of Alternatives 2 and 3 

above). Alternative 5: Allow a 

cooperative to form with a minimum of 


srobinson on DSK4SPTVN1PROD with PROPOSALS
49422 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 

three unique QS holders holding at least 

nine QS permits (status quo), or a single 

or collective group of entities that 

represent 20 percent, 25 percent, or 30 

percent of the sector QS. Alternative 6: 

Require that a cooperative accept all 

persons who are otherwise eligible to 

join a cooperative subject to the same 

terms and conditions as all other 

members. The Council recommended 

Alternative 4, reducing the number of 

unique QS holders to two unique 

persons and reducing the number of QS 

permits required to form a cooperative 

to seven QS permits, as its preferred 

alternative. 

Two alternative approaches were 

considered for the QS and vessel 

assignment provision. Alternative 1: 

status quo. QS holders with multiple QS 

permits and vessels may assign those 

QS permits and vessels to one or more 

cooperatives and the limited access 

fishery. Alternative 2: QS holders with 

multiple QS permits and vessels may 

assign those QS permits and vessels to 

one or more cooperatives or the limited 

access fishery, but not both. If approved, 

this alternative would be effective two 

years after the effective date of the final 

rule. 

Collectively, the alternatives and 

options considered under these two 

proposed actions provided a broad suite 

of alternatives from which the Council 

chose to modify the factors affecting 

cooperative formation. 

Compared with the status quo, the 

proposed action selected by the Council 

minimizes the adverse economic 

impacts on the directly regulated small 

entity. The alternatives under 

consideration in this proposed rule 

would be expected to provide greater 

opportunity for cooperative formation 

among the various industries. In no case 

are these combined impacts expected to 

be substantial. Alternative 4 of action 1, 

with the two unique persons and seven 

QS permit option, would not be 

expected to adversely affect the existing 

Amendment 80 cooperatives, but could 

provide additional cooperative 

formation opportunities for participants 

in the Amendment 80 limited access 

fishery. The proposed QS assignment 

provision would reduce the incentive 

for owners of multiple vessels to 

exclude a person from a cooperative. 

This proposed provision would be 

expected to enhance the likelihood of 

cooperative formation. 

Projected Reporting, Recordkeeping and 

Other Compliance Requirements 

Existing recordkeeping and reporting 

requirements necessary to apply to form 

an Amendment 80 cooperative would 

not be modified. 

Duplicate, Overlapping, or Conflicting 

Federal Rules 

No Federal rules that might duplicate, 

overlap, or conflict with this proposed 

action have been identified. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: August 3, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 679 is proposed 

to be amended as follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

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.; Pub. L. 108–447 

2. In § 679.91, paragraphs (h)(3)(ii), 

(h)(3)(iii), and (h)(3)(xii) are revised to 

read as follows: 

§ 679.91 Amendment 80 Program annual 

harvester privileges. 

* * * * * 

(h) * * * 

(3) * * * 

(ii) What is the minimum number of Amendment 80 QS permits that 

must be assigned to an Amendment 80 cooperative to allow it to 

form? 

Any combination of at least seven Amendment 80 QS permits which 

would include Amendment 80 LLP/QS licenses. 

(iii) How many Amendment 80 QS holders are required to form an 

Amendment 80 cooperative? 

At least two Amendment 80 QS holders each of whom may not have a 

ten percent or greater direct or indirect ownership interest in any of 

the other Amendment 80 QS holders. 

* * * * * * * 

(xii) Can an Amendment 80 QS permit, Amendment 80 LLP license, or 

Amendment 80 vessel be assigned to an Amendment 80 cooperative 

and the Amendment 80 limited access fishery? 

No, an Amendment 80 QS permit, Amendment 80 LLP license, or 

Amendment 80 vessel assigned to an Amendment 80 cooperative 

may not be assigned to the Amendment 80 limited access fishery for 

that calendar year. Prior to the 2014 fishing year, a person holding 

multiple Amendment 80 QS permits, Amendment 80 LLP licenses, or 

owning multiple Amendment 80 vessels is not required to assign all 

Amendment 80 QS permits, Amendment 80 LLP licenses, or 

Amendment 80 vessels to the same Amendment 80 cooperative or 

the Amendment 80 limited access fishery. Starting with the 2014 

fishing year and thereafter, a person holding multiple Amendment 80 

QS permits, Amendment 80 LLP licenses, or owning multiple 

Amendment 80 vessels must assign all Amendment 80 QS permits, 

Amendment 80 LLP licenses, or Amendment 80 vessels to either 

one or more Amendment 80 cooperatives, or the Amendment 80 limited access fishery. 

* * * * * * * 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Proposed Rules 49423 

[FR Doc. 2011–20191 Filed 8–9–11; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 680 

[Docket No. 0812081573–1423–02] 

RIN 0648–AX47 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands Crab Rationalization 

Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

implementing Amendment 30 to the 

Fishery Management Plan for Bering 

Sea/Aleutian Islands King and Tanner 

Crabs (FMP). This proposed rule would 

amend the Bering Sea/Aleutian Islands 

Crab Rationalization Program (CR 

Program) to modify procedures for 

producing and submitting documents 

that are required under the Arbitration 

System to resolve price, delivery, and 

other disputes between harvesters and 

processors. This action is necessary to 

improve the quality and timeliness of 

market information used to conduct 

arbitration proceedings. This action is 

intended to promote the goals and 

objectives of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, the FMP, and other applicable law. 

DATES: Comments must be received no 

later than September 9, 2011. 

ADDRESSES: Send comments to Assistant 

Regional Administrator, Sustainable 

Fisheries Division, Alaska Region, 

NMFS, Attn: Ellen Sebastian. You may 

submit comments, identified by ‘‘RIN 

0648–AX47,’’ by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal Web site at 

http://www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

Copies of Amendment 30, the 

Regulatory Impact Review/Initial 

Regulatory Flexibility Analysis (RIR/ 

IRFA) and the categorical exclusion 

prepared for this action—as well as the 

Environmental Impact Statement (EIS) 

prepared for the CR Program—may be 

obtained from the NMFS Alaska Region 

at the address above or from the Alaska 

Region Web site at http:// 

alaskafisheries.noaa.gov. NMFS 

determined that this proposed action 

was categorically excluded from the 

need to prepare an environmental 

assessment under the National 

Environmental Policy Act. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted to NMFS Alaska 

Region by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Forrest R. Bowers, 907–586–7240. 

SUPPLEMENTARY INFORMATION: The king 

and Tanner crab fisheries in the 

exclusive economic zone of the Bering 

Sea and Aleutian Islands (BSAI) are 

managed under the FMP. The FMP was 

prepared by the North Pacific Fishery 

Management Council (Council) under 

the Magnuson-Stevens Fishery 

Conservation and Management Act. 

Amendments 18 and 19 to the FMP 

implemented the CR Program. 

Regulations implementing the FMP, 

including the CR Program, 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 

providing 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 pool in 

a crab fishery would receive 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 history 

as catcher processors; and catcher vessel 

license holders were issued catcher 

vessel owner (CVO) QS based on their 

history as a catcher vessel. 

Under the CR Program, 97 percent of 

the initial allocation of QS was issued 

to vessel owners as CPO or CVO QS; the 

remaining 3 percent was issued to 

vessel captains and crew as CPC or CVC 

QS based on their harvest histories as 

crew members onboard crab fishing 

vessels. Ninety percent of the annual 

CVO IFQ is issued as A shares, or Class 

A IFQ, which are subject to landing 

requirements in specific geographic 

regions, and must be delivered to a 

processor holding unused individual 

processor quota (IPQ). The remaining 10 

percent of the annual CVO IFQ is issued 

as B shares, or Class B IFQ, which may 

be delivered to any processor and are 

not subject to regionalization. CPO, 

CPC, and CVC IFQ are not subject to 

regionalization and are not required to 

be matched with a processor holding 

IPQ. 

NMFS also issued processor quota 

shares (PQS) to processors based on 

their qualifying processing histories in 

the BSAI crab fisheries during a specific 

time period. These PQS yield annual 

IPQ, which represent a privilege to 

receive a certain amount of crab 

harvested with Class A IFQ. IPQ are 

issued in an amount equivalent to the 

Class A IFQ, creating a one-to-one 

correspondence between Class A IFQ 

and IPQ. Prior to the start of a crab 

fishing season, Class A IFQ and IPQ 

holders match their shares with one 

another, thereby determining their 

markets for the coming year. These 

matches may be modified during the 

crab season, but both parties must 

consent to any modifications. 

Arbitration System 

The CR Program requires holders of 

Class A IFQ to deliver their catch to 

processors holding IPQ for a specific 

crab fishery within a specific geographic 

region. Potential disputes among 

harvesters and processors during price 

and delivery negotiations can occur, and 

the share matching requirements can 

exacerbate these disputes. To fairly 

address potential price and delivery 

disputes that may arise between Class A 

IFQ holders and IPQ holders, the CR 


srobinson on DSK4SPTVN1PROD with PROPOSALS