[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Proposed Rules]
[Pages 74058-74062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29217]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

RIN 0648-BA61


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources

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

ACTION: Notice of availability of fishery management plan amendment; 
request for comments.

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SUMMARY: The North Pacific Fishery Management Council (Council) 
submitted Amendment 31 to the Fishery Management Plan for Bering Sea/
Aleutian Islands King and Tanner Crabs (FMP) to NMFS for review. If 
approved, Amendment 31 would amend the Bering Sea and Aleutian Islands 
Crab Rationalization Program (CR Program) within the FMP to: 
Temporarily expand the eligibility requirements for individuals wishing 
to acquire C share Quota Share (QS) by transfer; establish minimum 
participation requirements for C share QS holders to be eligible to 
receive an annual allocation of Individual Fishing Quota (IFQ); 
establish minimum participation requirements for C share QS holders to 
be eligible to retain their C share QS and establish an administrative 
process for revocation of an individual's C share QS, if he or she 
fails to satisfy the minimum participation requirements; establish a 
regulatory mechanism to ensure that three percent of the total 
allowable catch (TAC) for each CR Program crab fishery is allocated as 
IFQ to holders of C share QS; and remove the prohibition on leasing C 
share IFQ. Amendment 31 is necessary to ensure that individuals who 
hold C shares are active in the CR Program fisheries and to ensure that 
application deadlines provide adequate time to resolve disputes. 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 on the amendment must be submitted on or before 
February 13, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2010-0265, by any of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2010-0265, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: Submit written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, 
AK 99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. 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, or Adobe PDF file formats only.
    Electronic copies of Amendment 31, 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 prepared for the CR Program--may be obtained from http://www.regulations.gov 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.

FOR FURTHER INFORMATION CONTACT: Karen Palmigiano, 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 (FMP). The FMP was prepared by the 
North Pacific Fishery Management Council (Council) under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
as amended by the Consolidated Appropriations Act of 2004 (Pub. L. 108-
199, section 801). Regulations implementing the FMP, including the CR 
Program, are primarily located at 50 CFR part 680.

Overview of CR Program and C Shares

    The CR Program is a limited access privilege program that allocates 
the harvest of certain crab fisheries managed under the FMP among 
harvesters, processors, and coastal communities. Under the CR Program, 
NMFS issued four types of quota share (QS) to persons based on their 
qualifying harvest histories in certain BSAI crab fisheries during a 
specific period of time defined under the CR Program. The four types of 
QS are catcher vessel owner (CVO), catcher processor owner (CPO), 
catcher vessel

[[Page 74059]]

crew (CVC), and catcher processor crew (CPC). CVC and CPC QS are also 
known as ``crew shares'' or ``C shares.'' At the beginning of the CR 
Program, NMFS issued 97 percent of the QS as owner QS, either CVO or 
CPO, and issued the remaining three percent as C shares, either CVC or 
CPC.
    NMFS issued C shares to individuals holding State of Alaska 
Commercial Fisheries Entry Commission (CFEC) Interim Use Permits, 
generally vessel captains, who met specific historic and recent 
participation requirements in CR Program fisheries. NMFS did not issue 
C shares to individuals who did not meet both the historic and recent 
participation criteria. After the initial issuance of C shares, 
individuals may only acquire C shares through transfer.
    Each year, a QS holder submits a timely and complete ``Application 
for Annual Crab Individual Fishing Quota (IFQ) Permit'' in order to 
receive an exclusive harvest privilege for a portion of the total 
allowable catch (TAC) for each CR Program fishery in which the person 
holds QS. This harvest privilege is conferred as IFQ, and provides the 
QS holder with an annual allocation of pounds of crab for harvest in a 
specific CR Program crab fishery during the year in which it was 
allocated. 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, an individual holding C share QS equaling 
one percent of the C share QS pool in a crab fishery would receive IFQ 
to harvest one percent of the annual TAC allocated to C share QS in 
that crab fishery. NMFS issues holders of CVO QS two types of IFQ: 
Class A IFQ, which must be delivered to a processor holding a matching 
amount of IPQ, and Class B IFQ, which may be delivered to any 
registered crab receiver. Current regulations do not require C share 
IFQ to be matched with IPQ, and C share IFQ may be delivered to any 
registered crab receiver, similar to Class B CVO IFQ (see Sec.  
680.40(2)(b)(iii)).
    When initially establishing C shares, the Council intended that 
individuals holding C shares be active in CR Program fisheries. To 
ensure active participation, the CR Program requires C shareholders to 
be onboard the vessel when their C share IFQ is harvested (the ``holder 
on-board'' requirement) and prohibits C shareholders from leasing their 
C share IFQ except in the case of a hardship. However, the CR Program 
exempts a C shareholder from these two requirements if the C 
shareholder has joined a crab harvesting cooperative and the holder's C 
share IFQ is converted to cooperative IFQ. The CR Program also includes 
participation criteria that must be satisfied for an individual to be 
eligible to receive C share QS by transfer. To receive C share QS by 
transfer, current regulations require an applicant to meet eligibility 
requirements at the time of transfer. To meet these eligibility 
requirements, an individual may submit an Application for BSAI Crab 
Eligibility to Receive QS/PQS by Transfer in advance of submitting a 
transfer application, or at the same time as submitting a transfer 
application. The regulations require that an individual must be a U.S. 
citizen with (1) at least 150 days of sea time as part of a harvesting 
crew in any U.S. commercial fishery; and (2) participation in one of 
the CR Program fisheries in the 365 days prior to the date the transfer 
application is submitted to NMFS. If NMFS determines that an individual 
is eligible to receive C share QS by transfer, that individual would be 
required to submit proof of participation in one of the CR Program 
fisheries in the 365 days prior to the date of their application to 
transfer QS if more than 365 days has elapsed between NMFS' 
determination of eligibility and the submission of the transfer 
application. (See regulations at Sec.  680.41(c)(2)(C).)
    Annually, C share IFQ is assigned based on the individual's 
underlying QS. In a CR Program fishery, the annual allocation of IFQ 
assigned to any person (p) is based on the TAC for that crab QS fishery 
(f) less the allocation to the Western Alaska Community Development 
Quota (CDQ) Program and the Western Aleutian Islands golden king crab 
fishery. As expressed in regulations at Sec.  680.40(h), the annual IFQ 
allocation calculation is as follows:

<bullet> IFQ TAC<INF>f</INF> = TAC<INF>f</INF> - (Western Alaska CDQ 
Program + Western Aleutian Islands golden king crab fishery)
<bullet> IFQ<INF>pf</INF> = IFQ TAC<INF>f</INF> * (QS<INF>pf</INF>/
QS<INF>f</INF>)

    Based on these calculations, a person holding one percent of the QS 
in a CR Program fishery (QS<INF>pf</INF>) would receive IFQ to harvest 
one percent of the annual TAC in that CR Program fishery.

Need for Action

    At its June 2007 meeting, the Council received public testimony and 
recommendations from its Advisory Panel advocating for modifications to 
the participation requirements for acquisition and use of C shares. 
Participants in the CR Program fisheries raised the following issues:
    <bullet> At least 750 former crew, who did not receive an initial 
allocation of C shares but who were active in CR Program fisheries in 
the five years preceding implementation of the CR Program, are no 
longer active in CR Program fisheries due to the significant reduction 
in the number of vessels participating in CR Program fisheries 
subsequent to implementation of the CR Program.
    <bullet> The current eligibility requirement for recent 
participation in one of the CR program crab fisheries prevents 
acquisition of C shares by individuals formerly active in CR program 
fisheries but no longer participating in CR Program fisheries due to 
the significant fleet contraction and resulting loss of crew positions 
on crab boats.
    <bullet> Estimates of available information indicate that 
approximately 40% (97 individuals) of the individuals who received an 
initial allocation of C share QS (239 individuals) have remained active 
in the CR program fisheries, while approximately 60% (142 individuals) 
have not remained active in CR program fisheries.
    <bullet> The regulations intended to keep C share QS holders active 
in the fisheries are not working due to the exemptions from these 
active participation requirements for C shareholders who join a crab 
harvesting cooperative.
    Given this information, the Council determined that the current 
eligibility requirements for the acquisition of C shares have the 
effect of preventing some displaced, long-time captains and crew from 
acquiring C shares and that temporary modifications are necessary to 
increase the pool of individuals eligible to acquire C shares by 
transfer. The Council also determined that revisions to the current 
active participation requirements are necessary to establish reasonable 
participation requirements for C shareholders and to ensure that all C 
shareholders remain active in the fisheries. At its April 2008 meeting, 
the Council took final action which forms the basis for Amendment 31 to 
the FMP.

The Proposed Actions

    Amendment 31 would make several changes to FMP provisions governing 
the acquisition, use, and retention of quota share established for 
captain and crew, known as crew quota share or C shares, under the CR 
Program. Specifically, Amendment 31 would: (1) Temporarily expand the 
eligibility requirements for individuals wishing to acquire C share QS 
by transfer; (2) establish minimum participation requirements for C 
share QS holders to be eligible to receive an annual allocation of IFQ; 
(3) establish minimum participation requirements for C share QS holders 
to be eligible to retain their C share QS and establish an

[[Page 74060]]

administrative process for revocation of an individual's C share QS if 
he or she fails to satisfy the minimum participation requirements; (4) 
establish a regulatory mechanism to ensure that 3 percent of the TAC 
for each CR Program crab fishery is allocated as IFQ to holders of C 
share QS; and (5) remove the prohibition on leasing C share IFQ.

Temporary Modifications to Eligibility Criteria for Acquisition of C 
Share QS by Transfer

    Under the status quo, to receive C share QS by transfer a person 
must be an individual with at least 150 days of sea time in a harvest 
capacity in a U.S. commercial fishery and have been active as a 
crewmember in one of the CR Program fisheries in the last 365 days. 
Under this standard, captains and crew displaced by fleet contraction 
that have not found a position in one of the CR Program fisheries would 
not be permitted to acquire C share QS until they participated in a 
landing. Based on the fleet contraction that occurred at the inception 
of the CR Program, it is likely that as many as two-thirds of the 
persons that would have met this standard prior to the implementation 
of the CR program would not currently meet this standard.
    Amendment 31 would modify the recent participation requirements, 
for a limited time, to include additional eligibility requirements that 
would be less restrictive than the current requirements. Specifically, 
in addition to the existing eligibility criteria, Amendment 31 would 
permit the transfer of C share QS to an individual who is a U.S. 
citizen with at least 150 days of sea time as part of a harvesting crew 
in any U.S. commercial fishery and who either (1) received an initial 
allocation of CVC or CPC QS, or (2) participated in at least one 
delivery of crab from a fishery in the CR program in three of the five 
crab fishing years prior to the start of the CR Program, starting with 
the 2000/2001 crab fishing year through the 2004/2005 crab fishing 
year.
    Under Amendment 31, both initial recipients of C share QS, as well 
as individuals who participated in CR crab fisheries for three of the 
five years prior to the start of the CR program, would be eligible to 
acquire C share QS by transfer. The intended effect of the proposed 
change is to temporarily expand the pool of individuals eligible to 
acquire C share QS by transfer to include individuals who were active 
in the crab fishery immediately prior to implementation of the program, 
but who do not meet the current recent participation requirement for 
activity in the 365 days preceding the transfer. Amendment 31 would not 
remove the current eligibility criteria. Therefore, an individual would 
be eligible to acquire C share QS under the existing eligibility 
criteria, as well as the eligibility criteria that would be added to 
the FMP by Amendment 31. The eligibility criteria added by Amendment 31 
would exist only for a period of four years from the effective date of 
the final rule to implement Amendment 31, if Amendment 31 is approved. 
After this transitional period, the eligibility criteria added by 
Amendment 31 would no longer be valid, and the current eligibility 
criteria would apply to all individuals looking to acquire C share QS 
by transfer. The proposed changes to the eligibility criteria provide 
individuals formerly active in CR program fisheries, but who may not 
have been able to continue active participation in the CR crab 
fisheries, with an opportunity to acquire C share QS during the period 
of time under Amendment 31 in which current C share QS holders would be 
transitioning into compliance with the active participation 
requirements for C shareholders that also would be imposed by Amendment 
31.
    The benefit to those receiving eligibility for acquiring C share QS 
during the transitional period and the effects on the market for C 
share QS could be influenced by several factors. If C share QS holders 
are required to be active in the crab fisheries to receive IFQ or if C 
share QS holders are required to divest after a period of inactivity, 
which would be required under Amendment 31 as explained in the 
following sections, the transitional eligibility period could have 
minimal effects on individuals receiving the eligibility. An individual 
who becomes eligible to purchase C share QS during the proposed 
transitional eligibility period would be expected to satisfy 
participation requirements for C share QS holders and much less likely 
to purchase C share QS if the individual would not be eligible to 
receive IFQ or would be required to divest his or her C share QS 
holdings after a period of inactivity.
    Expanded eligibility for C share QS during the transitional period 
may also have an adverse effect on individuals currently active as 
captains and crew in the CR Program fisheries. Competition for C share 
QS may increase with increased demand and, with limited space for crew 
and captains, individuals may find more competition for jobs. However, 
individuals who do not currently have a position on a boat may be less 
interested in obtaining C share QS, and if there are more individuals 
interested and able to purchase C share QS, this may provide an 
opportunity for those individuals no longer wanting to remain active in 
the fishery to sell their shares for a competitive price.

Active Participation Requirements for C Share IFQ and QS

    The FMP currently requires individuals who hold C share IFQ to be 
onboard the vessel harvesting those IFQ. However, if a C share QS 
holder joins a cooperative, the IFQ from that C share QS are allocated 
to the cooperative, and the C shareholder is exempt from the holder 
onboard requirement with respect to those IFQ shares, as well as the 
current prohibition on leasing C share IFQ. The disparate treatment of 
individual holders of C share QS who are members of a cooperative 
versus holders of C share QS who are not members of a cooperative has 
had several effects, which were not the intention of the Council when 
creating the CR Program and C shares. First, the exemptions from the 
holder onboard requirement and the prohibition on leasing C share IFQ 
for holders of C shares who are members of a cooperative increase the 
incentive for a C shareholder to join a cooperative and essentially 
nullify the requirement for the holders of C shares to be onboard a 
vessel to harvest their IFQ. Since almost all holders of C share QS 
annually elect to join a cooperative, they do not have to be onboard 
the vessel while their C share IFQ are harvested and they are not 
prohibited from leasing their shares within the cooperative under the 
current requirements. While the Council intended to encourage the 
formation of cooperatives and the participation of C shareholders as 
members in cooperatives, the Council expected that C shareholders would 
remain active participants in the CR program fisheries regardless of 
whether they were members of a cooperative. Additionally, as active C 
shareholders retire from captain and crew positions, it can be expected 
that many may elect to continue to remain members of cooperatives and 
retain their C share holdings, effectively reducing the number of C 
shareholders who are actively participating in the fisheries. Lastly, 
the market for C shares could be less fluid under the current active 
participation requirements because individuals who retire or exit the 
fisheries are still able to retain their C shares and benefit from them 
through cooperative membership. If only active captains and crew are 
permitted to hold and receive benefits from C shares, it is likely that 
the market for these shares

[[Page 74061]]

will be more active and fluid, since individuals who retire or exit the 
fisheries would need to transfer their C shares.
    Amendment 31 would require individuals holding C share QS to 
satisfy certain minimum fishery participation requirements in order to 
(1) receive annual allocations of C share IFQ and (2) maintain their 
eligibility to hold C share QS. In order to be eligible to receive an 
allocation of C share IFQ for the 2018/2019 crab fishing year and 
annually thereafter, Amendment 31 would require a C shareholder to 
demonstrate that he or she had either (1) participated as crew in at 
least one delivery of crab in one of the CR Program fisheries in the 
three crab fishing years preceding the year for which the individual is 
applying for C share IFQ or, (2) if the individual C share QS holder 
received an initial allocation of C share QS, participated as crew in 
at least 30 days of fishing in State of Alaska or Federal Alaska 
commercial fisheries in the three crab fishing years preceding the year 
for which the individual is applying for C share IFQ. If Amendment 31 
is approved, the first crab fishing year in which the participation 
requirements for issuance of C share IFQ could be met would be the 
2015/2016 crab fishing year. Holders of C shares would be able to 
provide proof of participation by including an ADF&G fish ticket with 
their name and/or an affidavit from the vessel owner with their 
application for IFQ. Similarly, in order for an individual to be 
eligible to retain C share QS, Amendment 31 would require a C share QS 
holder to demonstrate that he or she had either (1) participated in at 
least one delivery of crab in one of the CR Program fisheries during a 
rolling period of four crab fishing years that would start with the 
2015/2016 crab fishing year, or (2) if the individual C share QS holder 
received an initial allocation of C share QS, participated in at least 
30 days of fishing in State of Alaska or Federal Alaska commercial 
fisheries during a rolling period of four crab fishing years that would 
start with the 2015/2016 crab fishing year. A C shareholder who 
satisfies the participation requirement to receive an annual allocation 
of IFQ would also satisfy the participation requirement to retain their 
C share QS.
    Amendment 31 would authorize NMFS to revoke C share QS held by 
individuals who are unable to provide proof of participation as 
described in the preceding paragraph for four successive crab fishing 
years. Under Amendment 31, NMFS would initiate C share QS revocation 
proceedings after 4 successive years of inactivity by a C share QS 
holder. Because the first year for satisfying the C share QS 
participation criteria is the 2015/2016 crab fishing, NMFS would not 
initiate a revocation proceeding until July 1, 2019, the start of the 
fifth crab fishing year following implementation of Amendment 31 if 
approved. The proposed rule to implement Amendment 31 describes the 
proposed administrative process that would be established for 
revocation of C share QS.
    The Council's rationale for recommending revocation of C share QS 
from holders who are inactive in the CR Program fisheries for an 
extended period is that those C shareholders effectively withhold these 
shares from other active captains and crew who might wish to develop or 
expand their C share holdings. The Council recognized that without 
revocation, the incentive for inactive C shareholders to divest their 
QS could be rather minor, particularly for individuals who received 
their C share QS in the initial allocation. For many of these 
individuals, their relatively small annual IFQ allocations may not 
catch their attention, and the value of the underlying QS may be 
overlooked, as has happened with inactive individuals in the Halibut 
and Sablefish IFQ program. Without the threat of revocation, it is 
possible that a portion of the C share QS pool would remain stagnant 
for extended periods of time, which could reduce the size of and 
activity in the C share QS market.
    Amendment 31 would not exempt C shareholders who join a cooperative 
from the proposed participation requirements to receive C share IFQ or 
to retain C share QS. Under Amendment 31, all C shareholders, 
regardless of whether they have joined a cooperative, would be required 
to meet the proposed participation requirements for receiving C share 
IFQ and retaining C share QS.
    Amendment 31 also would remove the prohibition on leasing C share 
IFQ, which has been in effect since July 1, 2008. The Council 
determined that the prohibition on leasing C share IFQ as a measure to 
ensure active participation would no longer be necessary because under 
Amendment 31, C shareholders would be required to satisfy specific 
participation requirements and these participation requirements would 
apply to all C shareholders even when they are members of a 
cooperative.

Maintenance of C Share IFQ Allocation at Three Percent of the Annual 
TAC

    Under the CR Program, the Council initially allocated 97 percent of 
the QS pool to vessel owners as catcher vessel owner (CVO) and catcher 
processor owner (CPO) QS and the remaining three percent as C share QS. 
Because the amount of IFQ issued annually is a function of the number 
of QS units and the annual TAC amount for a given fishery, the annual 
IFQ allocation should generally reflect the same 97 percent allocation 
to vessel owners and three percent to vessel crew. For example, if 
Person Z owns two percent of the 97 percent of vessel owner QS and the 
TAC is 3,000,000 lbs, then Person Z would receive IFQ for 58,200 lbs, 
because 97 percent of 3,000,000 lbs is 2,910,000 lbs and two percent of 
that is 58,200 lbs. This allocation method maintains the intended QS 
and IFQ percentages originally implemented by the Council. However, the 
revocation of C share QS proposed by the Council under Amendment 31 
could affect the 97 percent/3 percent split, reducing the amount of C 
share QS to less than 3 percent of the QS pool and consequently the 
amount of IFQ allocated to C shareholders.
    The Council determined that it wanted to ensure that 3 percent of 
the annual TAC for each crab fishery continues to be allocated to C 
share QS holders. In order to address this, Amendment 31 would 
specifically require that 3 percent of the annual TAC for each crab 
fishery included in the rationalization program be allocated as IFQ to 
holders of C share QS. This provision would be implemented through a 
regulation change which is addressed in the proposed rule for Amendment 
31. This new provision would maintain the C share IFQ allocation at its 
intended proportion of the IFQ pool (3 percent).

[[Page 74062]]

    NMFS is soliciting public comments on proposed Amendment 31 through 
the end of the comment period (see DATES). Public comments on the 
proposed FMP amendment must be received by the close of the comment 
period on Amendment 31 to be considered in the approval/disapproval 
decision on Amendment 31. All comments received by the end of the 
comment period, whether specifically directed to the FMP amendment or 
the proposed rule, will be considered in the approval/disapproval 
decision on Amendment 31. Comments received after the end of the public 
comment period for Amendment 31, even if received within the comment 
period for the proposed rule, will not be considered in the approval/
disapproval decision on the FMP amendment. To be considered, comments 
must be received, not just postmarked or otherwise transmitted, by the 
close of business on the last day of the comment period.

    Authority:  16 U.S.C. 1801 et seq.

    Dated: December 9, 2014.
Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2014-29217 Filed 12-12-14; 8:45 am]
BILLING CODE 3510-22-P