Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 25449 

SUMMARY: The General Services 

Administration (GSA) is amending the 

General Services Administration 

Acquisition Regulation (GSAR) by 

revising and updating the agency’s 

implementation of Federal Acquisition 

Regulation (FAR) Part 13, Simplified 

Acquisition Procedures. 

DATES: Effective Date: May 28, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925, or by email 

at meredith.murphy@gsa.gov. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat (VPR), Room 

4041, 1800 F Street, NW, Washington, 

DC, 20405, (202) 501–4755. Please cite 

Amendment 2009–0007, GSAR case 

2007–G502 (Change 35). 

SUPPLEMENTARY INFORMATION: 

A. Background 

This is part of the GSAM Rewrite 

Project, initiated in 2006 to revise, 

update, and simplify the GSA 

Acquisition Manual (GSAM). An 

Advance Notice of Proposed 

Rulemaking (ANPR), with a request for 

comments, was published in the 

Federal Register at 71 FR 7910 on 

February 15, 2006. No public comments 

were received in response to GSAM Part 

513. Prior to publication of the ANPR, 

internal comments were incorporated. 

The current GSAM Part 513 implements 

three of the FAR Part 13 subparts and 

the policy at GSAM 513.003. There are 

no clauses associated with GSAM Part 

513, and no supplementary subparts. 

The proposed rule deleted the policy 

statement at GSAM 513.003 and certain 

GSA-specific forms that are redundant 

to standard or optional forms in the 

FAR, as well as the GSAM text 

associated with them. 

The GSA review team noted that the 

GSAM Part 513 material currently 

coded as regulatory, i.e., GSAR, does 

not, in fact, contain regulatory material. 

The GSAR 513.302–70, 513.303–3(a) 

and (b), and 513.307 are considered 

policy, and this material has been 

converted to GSAM from GSAR. This 

change is shown by lining out the 

current GSAR text. The effect is to 

remove all of the GSAM Part 513 GSAR 

material. However, this former GSAR 

material has been retained, with some 

modifications, in the GSAM, which is 

also available to the public on the 

GSAM web site. 

A notice of proposed rulemaking was 

published in the Federal Register at 73 

FR 44955 on August 1, 2008. The public 

comment period for the proposed rule 

closed September 30, 2008. No 

comments were received. Therefore, the 

proposed rule is being converted to a 

final rule without change. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The General Services Administration 

certifies that this final rule will not have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the changes are primarily 

editorial in nature. An Initial Regulatory 

Flexibility Analysis has, therefore, not 

been performed. No comments were 

received in response to the shift from 

GSAR to GSAM. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

GSAR do not impose recordkeeping or 

information collection requirements, or 

otherwise collect information from 

offerors, contractors, or members of the 

public that require approval of the 

Office of Management and Budget under 

44 U.S.C. Chapter 35, et seq. 

List of Subjects in 48 CFR Part 513 

Government procurement. 

Dated: May 14, 2009. 

David A. Drabkin, 

Acting Chief Acquisition Officer, Office of 

the Chief Acquisition Officer, General 

Services Administration. 

■ Therefore, GSA amends 48 CFR part 

513 as set forth below: 

■ 1. The authority citation for 48 CFR 

part 513 is revised to read as follows: 

Authority: 40 U.S.C. 121(c). 

PART 513 [Removed and Reserved] 

■ 2. Remove and reserve Part 513 

consisting of Subpart 513.3 and sections 

513.302, 513.302–70, 513.303, 513.303– 

3, and 513.307. 

[FR Doc. E9–12375 Filed 5–27–09; 8:45 am] 

BILLING CODE 6820–61–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 680 

[Docket No. 080416577–9898–03] 

RIN 0648–AW73 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands Crab Rationalization 

Program; Amendment 27 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues regulations to 

implement Amendment 27 to the 

Fishery Management Plan for Bering 

Sea/Aleutian Islands King and Tanner 

Crabs (FMP). These regulations amend 

the Crab Rationalization Program to: 

implement the statutory requirements of 

section 122(e) of the Magnuson-Stevens 

Fishery Conservation and Management 

Reauthorization Act that specifically 

directs NMFS to modify how individual 

processing quota (IPQ) use caps apply to 

a person who is custom processing 

Chionoecetes opilio crab in the North 

Region; clarify that for other crab 

fisheries, IPQ crab that is processed at 

a facility through contractual 

arrangements with the facility owners 

will not be applied against the IPQ use 

cap of the facility owners provided 

specific conditions are met; and modify 

IPQ use caps that limit the amount of 

IPQ that may be used at a facility by 

persons processing Eastern Aleutian 

Islands golden king crab and Western 

Aleutian Islands red king crab. 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: Effective June 29, 2009. 

ADDRESSES: Copies of Amendment 27, 

the Regulatory Impact Review (RIR), the 

Final Regulatory Flexibility Analysis 

(FRFA), and the categorical exclusion 

prepared for this action, and the 

Environmental Impact Statement (EIS), 

RIR, FRFA, and Social Impact 

Assessment prepared for the Crab 

Rationalization Program are available 

from the NMFS Alaska Region at 709 

West 9th Street, Room 420A, Juneau, 

AK, or from the Alaska Region website 

at http://www.fakr.noaa.gov/ 

sustainablefisheries.htm. 

FOR FURTHER INFORMATION CONTACT: 

Glenn Merrill, 907–586–7228. 

25450 Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 

SUPPLEMENTARY INFORMATION: The king 

and Tanner crab fisheries in the 

exclusive economic zone (EEZ) 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 

(Magnuson-Stevens Act or MSA) as 

amended by the Consolidated 

Appropriations Act of 2004 (Public Law 

108–199, section 801). A final rule 

implementing the Crab Rationalization 

Program (Program) published on March 

2, 2005 (70 FR 10174). Regulations 

implementing the FMP, and all 

amendments to the Program are at 50 

CFR part 680 and general regulations 

related to fishery management at 50 CFR 

part 600. 

Program Overview 

Harvester, Processor, and Community 

Provisions 

The Program established a limited 

access privilege program (LAPP) for 

nine crab fisheries in the BSAI, and 

assigned quota share (QS) to persons 

based on their historic participation in 

one or more of those nine BSAI crab 

fisheries during a specific time period. 

Under the Program, NMFS issued four 

types of QS: catcher vessel owner (CVO) 

QS was assigned to holders of License 

Limitation Program (LLP) licenses who 

delivered their catch onshore or to 

stationary floating crab processors; 

catcher/processor vessel owner (CPO) 

QS was assigned to LLP holders that 

harvested and processed their catch at 

sea; captains and crew onboard catcher/ 

processor vessels were issued catcher/ 

processor crew (CPC) QS; and captains 

and crew onboard catcher vessels were 

issued catcher vessel crew (CVC) QS. 

Each year, a person who holds QS may 

receive an exclusive harvest privilege 

for a portion of the annual total 

allowable catch (TAC), called individual 

fishing quota (IFQ). 

NMFS also issued processor quota 

share (PQS) under the Program. Each 

year PQS yields an exclusive privilege 

to process a portion of the IFQ in each 

of the nine BSAI crab fisheries. This 

annual exclusive processing privilege is 

called individual processor quota (IPQ). 

Only a portion of the QS issued yields 

IFQ that is required to be delivered to 

a processor with IPQ. QS derived from 

deliveries made by catcher vessel 

owners (i.e., CVO QS) is subject to 

designation as either Class A IFQ or 

Class B IFQ. Ninety percent of the IFQ 

derived from CVO QS is designated as 

Class A IFQ, and the remaining 10 

percent of the IFQ is designated as Class 

B IFQ. Class A IFQ must be matched 

and delivered to a processor with IPQ. 

Class B IFQ is not required to be 

delivered to a specific processor with 

IPQ. Each year there is a one-to-one 

match of the total pounds of Class A IFQ 

with the total pounds of IPQ issued in 

each crab fishery. 

The Program seeks to ensure that 

communities that were historically 

active as processing ports continue to 

receive socioeconomic benefits from 

crab deliveries through regional delivery 

requirements, commonly known as 

regionalization. Even if processors 

transfer their PQS/IPQ, the Program 

specifies geographic regions where Class 

A IFQ must be delivered, and where IPQ 

must be used to receive that crab. The 

specific geographic regions applicable to 

Class A IFQ and IPQ are based on 

historic geographic delivery and 

processing patterns. Class B, CVC, CPO, 

and CPC IFQ are not subject to 

regionalization. For most crab fisheries, 

CVO QS and the resulting Class A IFQ, 

and PQS and the resulting IPQ, are 

regionally designated for the North 

Region (i.e., north of 54°20′ N. lat.), or 

the South Region (i.e., any location 

south of 54° 20′ N. lat.) based on the 

historic delivery and processing 

patterns of a specific CVO QS or PQS 

holder. For one fishery, the Western 

Aleutian Islands golden king crab 

fishery, half of the Class A IFQ and IPQ 

are designated for the West region, west 

of 174° W. long., and the other half of 

the Class A IFQ and IPQ are not subject 

to a regional designation. Two crab 

fisheries are not subject to 

regionalization requirements, the 

eastern Bering Sea and western Bering 

Sea C. bairdi fisheries. 

For communities that were 

historically active processing ports, the 

Program provides a right-of-first-refusal 

(ROFR) to purchase any PQS or IPQ that 

are derived from processing activities in 

those communities. The ROFR 

provision requires that any processor 

who wishes to transfer the PQS or IPQ 

in a specific crab fishery originally 

derived from processing activities in 

specific communities for use outside of 

those communities cannot complete that 

transfer unless they first provide those 

communities an opportunity to 

purchase the PQS or IPQ under the 

same terms and conditions offered to 

the processor to whom they wish to 

transfer those shares. The specific 

communities and fisheries eligible for 

the ROFR are described in regulation at 

50 CFR 680.2. The intent behind the 

ROFR is to provide communities with 

an option to purchase PQS or IPQ that 

would otherwise be used outside of the 

community. The rationale for the 

specific fisheries and communities 

subject to ROFR requirements is 

described in detail in the EIS prepared 

for the Program (see ADDRESSES). 

Use Caps 

When the Council recommended the 

Program, it expressed concern about the 

potential for excessive consolidation of 

QS and PQS, and the resulting annual 

IFQ and IPQ. Excessive consolidation 

could have adverse effects on crab 

markets, price setting negotiations 

between harvesters and processors, 

employment opportunities for 

harvesting and processing crew, tax 

revenue to communities in which crab 

are landed, and other factors considered 

and described in the EIS prepared for 

the Program (see ADDRESSES). To 

address these concerns, the Program 

limits the amount of QS that a person 

can hold, the amount of IFQ that a 

person can use, and the amount of IFQ 

that can be used onboard a vessel. 

Similarly, the Program limits the 

amount of PQS that a person can hold, 

the amount of IPQ that a person can use, 

and the amount of IPQ that can be 

processed at a given facility. These 

limits are commonly referred to as use 

caps. 

Currently, processors are limited in 

how much IPQ they can receive at a 

processing facility. In each of the nine 

BSAI crab fisheries under the Program, 

a person is limited to holding no more 

than 30 percent of the PQS initially 

issued in the fishery and using no more 

than the amount of IPQ resulting from 

30 percent of the initially issued PQS in 

a given fishery. In addition, no person 

is permitted to use more than 60 percent 

of the IPQ crab in the Bering Sea C. 

opilio fishery designated for exclusive 

use in the north region. Finally, no 

processing facility can be used to 

process more than 30 percent of the IPQ 

in a crab fishery. 

The Program is designed to minimize 

the potential that PQS and IPQ use caps 

could be evaded through the use of 

corporate affiliations or other legal 

relationships that would effectively 

allow a single person to use PQS or IPQ 

even if they are not the majority owner 

of that PQS or IPQ. Prior to Amendment 

27, the Program calculated a person’s 

IPQ use cap by summing the total 

amount of IPQ that is (1) held by that 

person; (2) held by other persons who 

are affiliated with that person through 

common ownership or control; and (3) 

any IPQ crab that is custom processed 

at a facility an IPQ holder owns. A 

custom processing arrangement exists 

when one IPQ holder: (1) has a contract 

with the owners of a processing facility 

to have his crab processed at that 

Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 25451 

facility; (2) that IPQ holder does not 

have an ownership interest in the 

processing facility; and (3) that IPQ 

holder is not otherwise affiliated with 

the owners of that crab processing 

facility. In custom processing 

arrangements, the IPQ holder contracts 

with a facility operator to have the IPQ 

crab processed according to his 

specifications. Custom processing 

arrangements typically occur when an 

IPQ holder does not own an onshore 

processing facility or cannot 

economically operate a stationary 

floating crab processor in a specific 

region. Relevant to this action, in each 

of the nine Program fisheries, a person 

is limited to holding no more than an 

amount equal to 30 percent of the PQS 

initially issued in a given BSAI crab 

fishery and limited to using no more 

than the amount of IPQ resulting from 

30 percent of the initially issued PQS in 

a given BSAI crab fishery. In addition, 

no person is permitted to use more than 

60 percent of the IPQ crab issued in the 

Bering Sea C. opilio fishery designated 

for exclusive use in the North Region. 

Finally, no processing facility can be 

used to process more than 30 percent of 

the IPQ issued for a crab fishery. 

Amendment 27 

Amendment 27 accomplishes three 

broad goals. First, it establishes 

regulations necessary to implement 

section 122(e) of the Magnuson-Stevens 

Fishery Conservation and Management 

Reauthorization Act of 2006 (MSRA) 

which became law on January 12, 2007 

(Public Law 109–479). Second, it 

modifies the methods used to calculate 

and apply use caps when custom 

processing arrangements occur. Third, it 

establishes a limit on the maximum 

amount of processing that may be 

undertaken at processing facilities in the 

Eastern Aleutian Islands golden king 

crab and Western Aleutian Islands red 

king crab fisheries. 

Section 122(e) of the MSRA 

specifically directs NMFS to modify 

how IPQ use caps apply to a person who 

is custom processing Bering Sea C. 

opilio crab in the North Region. Section 

122(e) of the MSRA states: 

(e) USE CAPS.— 

(1) IN GENERAL.—Notwithstanding 

sections 680.42(b)(ii)(2) and 680.7(a)(ii)(7) of 

title 50, Code of Federal Regulations, custom 

processing arrangements shall not count 

against any use cap for the processing of 

opilio crab in the Northern Region so long as 

such crab is processed in the North region by 

a shore-based crab processor. 

(2) SHORE–BASED CRAB PROCESSOR 

DEFINED.—In this paragraph, the term 

‘‘shorebased processor’’ means any person or 

vessel that receives, purchases, or arranges to 

purchase unprocessed crab, that is located on 

shore or moored within the harbor. 

To fully implement section 122(e) of 

the MSRA, NMFS must adopt 

conforming regulations. However, 

several of the specific terms used in 

section 122(e), such as ‘‘custom 

processing arrangements’’ and ‘‘moored 

within the harbor,’’ are not defined in 

the statute or in regulation and Congress 

did not provide legislative history to 

guide NMFS on how to interpret those 

terms. 

In response, the Council received 

guidance from the public and adopted 

recommendations to revise the Program 

to implement section 122(e) of the 

MSRA. During this process, participants 

in other crab fisheries expressed 

concerns about the economic viability of 

their fishing operations and proposed 

IPQ use cap exemptions for custom 

processing arrangements similar to 

those congressionally mandated for the 

north region Bering Sea C. opilio 

fishery. Specifically, participants in crab 

fisheries with historically low TAC 

allocations or active in crab fisheries in 

more remote geographic regions argued 

that exempting IPQ crab processed 

under custom processing arrangements 

from the IPQ use caps of the owners of 

facilities could improve their 

operational efficiency. The Council 

recommended Amendment 27 to clarify 

that IPQ holders who hold at least a 10 

percent or greater direct or indirect 

ownership interest in a processing 

facility would not be considered as 

using IPQ when that IPQ crab was (1) 

received by an IPQ holder at their 

facility under a custom processing 

arrangement; (2) limited to specific crab 

fisheries; (3) received and processed at 

specific types of processing facilities; or 

(4) was IPQ crab that was derived from 

PQS earned from processing in specific 

communities where crab has been 

historically delivered. In addition, the 

Council recommended limits on the 

amount of IPQ crab that could be 

processed at a facility for the Aleutian 

Islands golden and red king crab 

fisheries. In December 2007, the Council 

adopted these recommended changes in 

addition to the clarifications necessary 

to implement section 122(e) of the 

MSRA and forwarded Amendment 27 to 

the Secretary for review. 

Notice of Availability and Proposed 

Rule 

NMFS published the notice of 

availability for Amendment 27 on 

September 11, 2008 (73 FR 52806), with 

a public comment period that closed on 

November 10, 2008. NMFS published 

the proposed rule for this action on 

September 19, 2008 (73 FR 54346), with 

a public comment period that closed on 

November 3, 2008. NMFS received 12 

public comments from 3 unique persons 

on Amendment 27 and the proposed 

rule, which are summarized and 

responded to below. 

Changes to the Program 

This rule modifies or adds regulations 

at §§ 680.7(a)(7), 680.7(a)(8), 680.7(a)(9), 

680.42(b)(2), and 680.42(b)(7). These 

changes are described in the following 

sections. 

Exempting Custom Processing 

Arrangements from IPQ Use Caps 

For certain crab fisheries, this rule 

removes the requirement that NMFS 

apply any IPQ used at a facility through 

a custom processing arrangement 

against the IPQ use cap of the owners of 

that facility if there is no affiliation 

between the person whose IPQ crab is 

processed at that facility and the IPQ 

holders who own that facility. The 

changes to § 680.7(a)(7) modify the 

calculation of a person’s IPQ use cap to 

be the sum of the IPQ held by that 

person, either directly or indirectly 

through subsidiary corporations, and all 

IPQ held by any IPQ holders affiliated 

with that person. Effectively, this 

change does not count IPQ crab that are 

custom processed at a facility owned by 

an IPQ holder against the IPQ use cap 

of the owner of the processing facility. 

A person who holds IPQ and who owns 

a processing facility is credited only 

with the amount of IPQ crab used by 

that person, or any affiliates of that 

person, when calculating IPQ use caps. 

In sum, the rule allows processing 

facility owners who also hold IPQ to be 

able to use their facility to establish 

custom processing arrangements with 

other IPQ holders to process more crab 

at their facilities, thereby improving 

throughput and providing a more 

economically viable processing 

platform. Conceivably, most or all of the 

IPQ crab to which the exemption 

applies could be processed at a single 

facility depending on the degree of 

affiliation that may exist between IPQ 

holders who have an ownership interest 

in the facility and the number of IPQ 

holders that establish custom processing 

arrangements with a given facility 

owner. The affiliation relationships 

among IPQ holders and processing 

facility ownership can change with 

time, so the degree of processing 

consolidation that may occur at a given 

processing facility in a specific crab 

fishery cannot be predicted. The 

analysis prepared for this action notes 

the possibility that IPQ crab designated 

for a specific region could be processed 

25452 Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 

at a single facility and notes the 

potential benefits that may accrue from 

increased efficiencies in processing (see 

ADDRESSES). A more extensive 

discussion of the rationale for relieving 

processing restrictions is provided in 

the preamble to the proposed rule (see 

ADDRESSES). 

Removing IPQ Crab Under Custom 

Processing Arrangement From The 

Facility Use Cap 

Consistent with the exemption for 

custom processing arrangements from 

IPQ use caps, this rule amends the 

regulations at § 680.7(a)(8) so that IPQ 

crab processed under a custom 

processing arrangement do not apply 

against the limit on the maximum 

amount of IPQ crab that can be 

processed at a facility in which no IPQ 

holder has a 10 percent or greater 

ownership interest. The rule effectively 

removes that limit so that more than 30 

percent of the IPQ could be processed 

at a facility in which no IPQ holder has 

a 10 percent or greater direct or indirect 

ownership interest in the processing 

facility, provided those IPQ crab are 

custom processed at that facility. 

Removing IPQ Crab under Custom 

Processing Arrangement In The North 

Region C. opilio Fishery From IPQ Use 

Cap Calculations 

The rule modifies regulations at 

§ 680.42(b)(2) so that IPQ crab processed 

under a custom processing arrangement 

do not apply against the IPQ use cap 

limitation that no person can use more 

than 60 percent of the Bering Sea C. 

opilio IPQ designated for the North 

Region. This exemption for IPQ crab 

custom processed in the Bering Sea C. 

opilio fishery in the North Region meets 

the intent of section 122(e) of the MSRA 

to exempt custom processing 

arrangements from this use cap. 

To conform to section 122(e) of the 

MSRA, this rule modifies § 680.42(b)(2) 

to allow persons holding Bering Sea C. 

opilio IPQ designated for delivery in the 

North Region to establish custom 

processing arrangements to have their 

IPQ crab processed at a facility. The IPQ 

crab processed under those custom 

processing arrangements do not apply 

against the Bering Sea C. opilio use cap 

of IPQ holders who own the facility 

where those crab are custom processed. 

Fisheries Subject To Custom Processing 

Arrangement Exemption 

The rule establishes regulations at 

§ 680.42(b)(7)(ii)(A) that list the six crab 

fisheries for which the custom 

processing arrangement exemption 

applies. These are: Bering Sea C. opilio 

with a North Region designation, 

Eastern Aleutian Islands golden king 

crab, Pribilof Island blue and red king 

crab, Saint Matthew blue king crab, 

Western Aleutian golden king crab 

processed west of 174° W. long., and 

Western Aleutian Islands red king crab. 

In these six crab fisheries, IPQ crab that 

are processed under a custom 

processing arrangement do not apply 

against the use cap of IPQ holders who 

own the facility where those crab are 

custom processed. 

Facilities Where Custom Processing 

Arrangements Are Exempt From Use 

Caps 

The rule establishes regulations at 

§ 680.42(b)(7)(ii)(B) that exempt IPQ 

crab under custom processing 

arrangements in the six crab fisheries 

described above from applying to the 

IPQ use cap of the owner of that facility 

if that facility meets specific 

requirements. Consistent with section 

122(e) of the MSRA, the Council 

recommended that any IPQ crab that 

were custom processed do not count 

against the IPQ use cap of persons 

holding a 10 percent or greater direct or 

indirect ownership interest in the 

facility where those IPQ crab were 

custom processed if the facility is: (1) in 

a home rule, first class, or second class 

city in the State of Alaska on the 

effective date of this rule; and (2) either 

a shorebased crab processor (i.e., 

shoreside), or a stationary floating crab 

processor that is moored within a harbor 

at a dock, docking facility, or other 

permanent mooring buoy, with specific 

provisions applicable to the City of 

Atka. 

In addition to the requirement that a 

facility be located in a home rule, first 

class, or second class city, the facility 

needs to be a shoreside processor, or be 

a stationary floating crab processor that 

is moored at a dock, docking facility, or 

other permanent mooring buoy located 

in a harbor within the municipal 

boundaries of the city. An exemption to 

the requirement that a stationary 

floating crab processor must be moored 

within a harbor at a dock, docking 

facility, or other permanent mooring 

buoy is provided for the City of Atka as 

described below. 

The requirement that a stationary 

floating crab processor be moored 

within a harbor within city boundaries 

is consistent with the statutory language 

of section 122(e) of MSRA. Although 

section 122(e) applies only to the C. 

opilio fishery in the North Region, the 

Council, with one exception for the City 

of Atka, did not wish to apply different 

standards to the use of stationary 

floating crab processors for purposes of 

applying an IPQ use cap exemption for 

custom processed crab in different crab 

fisheries. NMFS determined that a 

uniform standard will reduce confusion 

among fishery participants and ease 

enforcement of this provision. 

The Council recommended that a 

stationary floating crab processor would 

not be required to be moored within a 

harbor in the city of Atka. Currently, the 

city of Atka lacks an onshore processing 

facility capable of processing crab 

economically. These conditions do not 

appear to exist in other cities with 

substantial history of crab processing, 

and so an exemption to the mooring 

requirements does not appear necessary 

in other communities where custom 

processing is likely to occur. The 

preamble to the proposed rule contains 

a more detailed description of the 

rationale for the provisions specific to 

Atka (see ADDRESSES). 

NMFS defines home rule, first class, 

and second class cities and the 

boundaries of those cities as those that 

are in existence as of the effective date 

of this rule. Fixing the specific 

communities and their boundaries 

facilitates compliance with this 

provision and assists these 

municipalities or the State of Alaska in 

considering effects on processors who 

rely on the existing municipalities and 

the boundaries of those existing 

municipalities in any future action to 

redesignate these cities or modify their 

boundaries. 

Use Cap Exemptions For IPQ Crab 

Subject To ROFR Requirements 

This rule adds regulations at 

§ 680.42(b)(7)(ii)(C) to exempt IPQ crab 

derived from PQS that is, or once was, 

subject to ROFR requirements and that 

is to be custom processed within the 

boundaries of an eligible crab 

community (ECC) with whom the ROFR 

contract applies, or did apply, from the 

IPQ use cap of the owner of the facility 

where those crab are custom processed. 

Any IPQ crab derived from this PQS and 

custom processed within that 

community would be exempt from the 

IPQ use cap of persons who own the 

crab processing facility. 

The fisheries subject to ROFR contract 

requirements are the Eastern Aleutian 

Islands golden king crab, Bristol Bay red 

king crab, Bering sea C. opilio crab, 

Pribilof Islands red and blue king crab, 

and St. Matthew blue king crab 

fisheries. The eight ECCs are Akutan, 

Dutch Harbor, False Pass, King Cove, 

Kodiak, Port Moller, Saint George, and 

Saint Paul. The net effect of this 

provision is to allow consolidation of 

processing through custom processing 

arrangements in these specific 

communities that are historically 

Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 25453 

dependent on crab processing 

operations. 

This provision differs from the more 

general custom processing IPQ use cap 

exemptions in several ways. First, 

processing can occur only within the 

boundaries of the ECCs. Second, Bristol 

Bay red king crab as well as Bering Sea 

C. opilio crab designated for either the 

North Region or the South Region could 

be custom processed at facilities within 

the ECCs and does not apply to the IPQ 

use cap of the facility owners. Third, 

only IPQ derived from PQS that is, or 

was, subject to a ROFR with an ECC and 

transferred to another person can be 

custom processed at a facility within 

that community, and does not apply to 

the IPQ use cap of the owner of the 

facility. Fourth, this provision does not 

require that these IPQ crab be processed 

at specific types of facilities, only that 

the IPQ crab be processed within the 

boundaries of the ECC. Therefore, this 

provision does not require the IPQ crab 

to be processed only onshore or on 

stationary floating crab processors that 

are moored at a dock or a permanent 

mooring buoy in a harbor. 

IPQ Use Cap For Eastern Aleutian 

Islands Golden King Crab and Western 

Aleutian Islands Red King Crab 

The rule adds regulations at 

§ 680.7(a)(9) that prohibit a person from 

processing more than 60 percent of the 

IPQ issued for the Western Aleutian 

Islands red king crab or Eastern 

Aleutian Islands golden king crab 

fisheries in a crab fishing year at a single 

processing facility east of 174° W. long. 

This provision applies to all IPQ 

processed at a shoreside crab processor 

or stationary floating crab processor, 

and does not exempt IPQ crab that are 

delivered under a custom processing 

arrangement from IPQ use cap 

calculations. The Council’s intent 

behind this provision is to limit the 

potential consolidation of IPQ that 

could occur under the custom 

processing exemptions contained in this 

rule. This processing limit prevents 

excessive consolidation of the number 

of markets available to harvesters, a 

scenario that is more likely in these 

fisheries compared to the other fisheries 

with custom processing exemptions 

given their historically relatively small 

TACs compared to other crab fisheries. 

In addition, this provision minimizes 

the potentially adverse effects on 

processing facilities west of 174° W. 

long. by preventing the complete 

consolidation of IPQ in processing 

facilities east of 174° W. long. Due to the 

limited TAC in the Eastern Aleutian 

Islands golden king crab fishery, and the 

currently limited number of PQS 

holders, processing could consolidate in 

one or a few facilities east of 174° W. 

long., such as Dutch Harbor or other 

ports where PQS holders in this fishery 

currently own processing facilities. 

Processors owning facilities west of 174° 

W. long. expressed concern about their 

ability to effectively compete in these 

fisheries if all of the catch were 

processed in one facility east of 174° W. 

long. 

Response to Comments 

Comment 1: The Fisheries Impact 

Statement prepared to support the 

proposed rule did not adequately 

describe the foreseeable impacts of the 

proposed rule on certain processing 

operations in the Aleutian Islands 

Pacific cod fishery. The commenter 

notes that he has provided testimony to 

the Council recommending that limits 

be placed on the amount of Pacific cod 

that may be processed by vessels that 

have historically been used as stationary 

floating crab processors in the C. oplilo 

fishery. The commenter believes that 

Pacific cod processing limits should be 

established and notes that such 

processing limits are not included as 

part of this action. 

Response: Section 303(a)(9) of the 

MSA requires that a fishery 

management plan include a fishery 

impact statement: 

[W]hich shall assess, specify, and analyze 

the likely effects, if any, including the 

cumulative conservation, economic, and 

social impacts, of the conservation and 

management measures on, and possible 

mitigation measures for— 

(A) participants in the fisheries and fishing 

communities affected by the plan or 

amendment; 

(B) participants in the fisheries conducted 

in adjacent areas under the authority of 

another Council [emphasis added], after 

consultation with such Council and 

representatives of those participants; and 

(C) the safety of human life at sea, 

including whether and to what extent such 

measures may affect the safety of participants 

in the fishery.’’ 

Section 303(a)(9)(B) requires the 

Council and NMFS to examine the 

likely effects of Amendment 27 on 

participants in other fisheries under the 

jurisdiction of fishery management 

councils other than the North Pacific 

Fishery Management Council. It is not 

clear that section 303(a)(9)(B) applies to 

this action. The EEZ off Alaska under 

the authority of the Council is not 

adjacent to the EEZ of any other state 

under the authority of any other fishery 

management council. Second, this 

action would not be expected to have 

‘‘likely effects’’ because this action is 

limited to amending the FMP for crab 

fisheries in the BSAI and these stocks 

are not harvested in fisheries under the 

authority of other fishery management 

councils. 

NMFS and the Council did conduct a 

Fishery Impact Statement consistent 

with section 303(a)(9) of the MSA that 

assessed, specified, and analyzed the 

likely effects of Amendment 27. The 

Fishery Impact Statement is contained 

in section 4.2 of the RIR/IRFA prepared 

for this action and notes ‘‘[t]he impacts 

of the alternatives on participants in the 

harvesting sector and processing sector 

have been discussed in previous 

sections of this document. This action 

will have no effect on participants in 

other fisheries.’’ Specifically, the RIR/ 

IRFA contains a discussion of the 

impacts of the action on harvesters, 

processors, and fishing communities. 

Section 2.4.7 contains a discussion of 

the potential effects of this action on 

participants in other fisheries including 

groundfish fisheries such as Pacific cod. 

Specifically, section 2.4.7 notes that: 

Processor concerns have focused primarily 

on the activity of floating processors that 

have historically participated in the Bering 

Sea C. opilio fishery, now being freed up to 

process groundfish. In the first two years of 

the rationalization program, four and three 

processors participated in the North region, 

respectively, while four and six processors 

participated in the South region, 

respectively. This participation is a 

substantial decline from the 15 to 20 

processors that participated in the years 

immediately preceding implementation of 

the program. Given this level of 

consolidation under [the Program], the 

potential for this action to contribute to 

further consolidation that has a perceptible 

effect on processors in other fisheries, is very 

limited. 

The analysis clearly indicates that 

although the Program resulted in some 

consolidation in the crab fishery, the 

potential that this action would 

encourage a redistribution of excess 

processing capacity to the Aleutian 

Islands Pacific cod fishery is not likely. 

The Fisheries Impact Statement 

adequately addresses the requirements 

of section 303(a)(9) of the MSA, 

specifically the ‘‘likely effects’’ of the 

action, including a discussion noting 

that the specific concerns raised by the 

commenter are not likely to occur. 

NMFS is adding some clarification to 

section 2.4.7 to note that in response to 

concerns raised by processing 

representatives (including the 

commenter) subsequent to 

implementation of the Program, the 

Council has initiated an examination of 

alternatives to impose limits on 

processing of groundfish harvested from 

the Aleutian Islands by floating 

25454 Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 

processors whose processing history led 

to an allocation under the Program. That 

action is intended to address possible 

inequities to historic groundfish 

processors that might arise from the 

potential that additional processing 

capacity could have been made 

available by the implementation of the 

Program and that additional capacity 

could increase processing effort in the 

groundfish fisheries. However, the 

conclusions contained in section 2.4.7 

clearly note that the potential effects of 

Amendment 27 and the accompanying 

regulations are not likely to have an 

adverse effect on existing processing 

operations. 

Although it is possible that the 

implementation of the Program may 

have reduced the need for processing 

capacity for BSAI crab fisheries, and 

some of that processing capacity could 

be redirected for processing Pacific cod, 

there is no information to suggest that 

Amendment 27 and its accompanying 

regulations would measurably increase 

the amount of processing capacity that 

may be used to process Pacific cod in 

the Aleutian Islands beyond that which 

may have already occurred with the 

implementation of the Program. Section 

2.4 of the analysis notes that currently 

there is likely to be excess processing 

capacity that may be used in a variety 

of fisheries, including the Aleutian 

Islands Pacific cod fishery. Modifying 

the method for calculating the IPQ use 

cap is not expected to substantially 

increase processing capacity available 

for use in the Aleutian Islands Pacific 

cod fishery. 

Comment 2: The Council 

acknowledged and then ignored the 

foreseeable impacts of this action on 

Aleutian Islands Pacific cod processing 

in Adak. The commenter provides an 

example of the operations of a specific 

floating processor involved in both 

Aleutian Islands Pacific cod and the 

snow crab fishery in 2008 and appears 

to suggest that this final rule would 

encourage this vessel to process 

Aleutian Islands Pacific cod instead of 

snow crab in a manner that would be 

disadvantageous to the specific 

processing operations in Adak. The 

commenter notes that additional 

mitigation measures, presumably to 

address the fishing operations of this 

floating processor, should be 

considered. The commenter notes that 

the Council is currently considering an 

action that would limit the amount of 

Aleutian Islands Pacific cod that could 

be received and processed by vessels 

that participate in LAPPs. The 

commenter provides a description of 

Council deliberations related to 

Aleutian Islands Pacific cod processing. 

In particular, the commenter notes that 

in the transcript of Council 

deliberations, NOAA General Counsel 

had raised concerns about the nature of 

discussions and whether the Council 

had fully considered the impacts of its 

action. 

Response: NMFS reviewed the record 

developed by the Council for this action 

and determined that the Council did not 

ignore the foreseeable impact of this 

action on Aleutian Islands Pacific cod 

processing. The analysis prepared for 

this action analyzed the effects of this 

action and its likely effects on 

participants in various fisheries. 

Specifically, sections 2.3, 2.4, and 3.7 of 

the analysis contain an extensive 

description of the likely effects of this 

action on harvesters, processors, 

communities, and participants in other 

fisheries. 

The reference the commenter makes 

to a specific floating processor and how 

this action would affect that vessel’s 

operations appears speculative. The 

analysis generally examined changes in 

processing operations that might occur 

from this action but cannot reasonably 

predict or analyze the actions of specific 

vessel’s operations due to the wide 

variety of factors that will affect their 

operations. There is no reason to assume 

that a specific vessel operator will 

choose to process Aleutian Islands 

Pacific cod differently due to this 

action. However, the information the 

commenter presents in the comment 

indicates that the vessel of concern is 

already actively processing in the 

Aleutian Islands Pacific cod fishery, in 

which case, this action would not be 

expected to have any additional impact 

on processing by this vessel in the 

Aleutian Islands Pacific cod fishery. 

During deliberations, Council 

members explored the potential impact 

of this action on other fisheries. After a 

consideration of the potential impacts of 

this action, the Council chose to 

proceed with this action. In addition, 

the Council chose to initiate a review of 

the potential impacts of limited access 

privilege programs (LAPPs), including 

the Program, the AFA, and the 

Amendment 80 Program on processing 

capacity and the potential effects of 

those LAPPs on processing operations 

in various communities. The Council 

concluded that this action did not have 

a demonstrable likely impact on 

processing consolidation that would 

adversely affect other participants, but 

did choose to explore the impacts of 

LAPPs generally under a separate 

action. Based on the deliberations and a 

review of the analysis, NMFS agrees 

with the Council’s conclusions. It 

should be noted that the commenter’s 

description of comments made by 

NOAA General Counsel is not complete. 

NOAA General Counsel raised concerns 

in an effort to help focus the Council’s 

deliberations. Unfortunately, those 

deliberations are not available because 

the discussion among NOAA General 

Counsel and Council members was not 

recorded in its entirety. 

Comment 3: The IRFA improperly 

concludes that this action would be 

expected to benefit the directly 

regulated entities. Adak Fisheries would 

be harmed because under this action an 

IPQ holder will have less incentive to 

custom process in Adak, and this action 

would provide an incentive for a person 

to bring a floating processor into the 

Aleutians to process crab and Pacific 

cod which would reduce the potential 

product delivered to Adak. These issues 

have not been adequately addressed in 

the IRFA. Specific requirements that 

allow custom processing by floating 

processors in the Aleutian Islands 

undermine the goals of the Council to 

sustain communities in the Aleutian 

Islands. Allowing floating processors 

minimizes the potential benefits that 

may be received by shoreside processing 

operations. 

Response: NMFS disagrees. The 

commenter’s assertions about the effects 

of this final rule on directly regulated 

entities must be considered separately 

from the rule’s effects on other 

indirectly regulated entities, such as the 

communities of Adak or Atka, or 

processing facilities. The IRFA and 

FRFA conclude that directly regulated 

entities are the PQS and IPQ holders 

who would be allowed to undertake 

custom processing with less constraint 

than they could prior to this rule. The 

PQS and IPQ holders are expected to 

benefit because the action would relieve 

a restriction on their ability to 

consolidate processing operations and 

may provide additional benefits relative 

to the status quo such as improved 

operations efficiency. The commenter 

does not provide any information to 

suggest that this conclusion is not true. 

The action would allow any directly 

regulated PQS or IPQ holder to establish 

custom processing relationships with 

any other PQS or IPQ holder within the 

limits established by this action. 

Specific to this comment, Adak 

Fisheries, or any other IPQ holder, 

could choose to have crab processed at 

any facility that is able to process those 

crab, including Adak, provided that 

facility is not otherwise ineligible to be 

used. The potential for a processing 

facility at Adak to use this provision is 

addressed in the analysis prepared for 

this action (see ADDRESSES). 

Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 25455 

The commenter asserts that the action 

would reduce the incentive for an IPQ 

holder to use the processing facility in 

Adak for custom processing, but 

provides no reason as to why this may 

be the case. Facilities in Adak, or any 

other community, could be used for 

custom processing. The only factors that 

would prevent operations from being 

consolidated in Adak would be those 

unrelated to this action (e.g., IPQ 

holders cannot reach agreement with 

the facility operators on terms to have 

their crab custom processed at that 

facility, the facility is unable to meet the 

processing requirements of the IPQ 

holders who wish to have their crab 

custom processed, or the facility is not 

economically viable for a given custom 

processing arrangement). As noted in 

the response to Comment 1, NMFS has 

concluded it is unlikely that this action 

will have an effect on processing 

activities in the Aleutian Islands Pacific 

cod fishery. 

The commenter notes that one of the 

goals in the Council’s purpose and need 

statement (i.e., problem statement) for 

this action is ‘‘sustaining communities,’’ 

but the commenter fails to consider the 

Council’s purpose and need statement 

in its entirety. The Council considered 

alternatives that would ‘‘protect the 

economic base of remote communities 

dependent on crab processing, and to 

allow for the efficient prosecution of 

quota held by fishermen.’’ Specifically, 

the Council considered alternatives that 

would allow Adak and Atka to benefit 

from more efficient prosecution of crab 

fisheries by the exemption of custom 

processing arrangements from IPQ use 

caps. The Council noted that given the 

limited shoreside processing facilities 

available in Aleutian Island 

communities other than Adak, allowing 

floating processors to operate in the 

Aleutian Islands under specific 

conditions would help to protect the 

economic base of Atka by allowing 

floating operators to operate there, while 

ensuring that processing operations in 

Adak may continue. Section 2.3.13 of 

the analysis notes that Adak has the 

only shoreside processing facilities in 

the Central and Western Aleutian 

Islands, and section 2.4.3 notes that the 

onshore processing facility ‘‘at Adak 

could be provided a substantial 

advantage relative to other processors, if 

only shore plants are qualified for the 

[custom processing] exemption.’’ 

Because the goal of this action is to 

protect the economic base of all 

communities, not only Adak, and is to 

allow efficient prosecution of quota, the 

Council considered, and ultimately 

selected options to allow floating 

processors to operate in the Aleutian 

Islands as a way to accomplish these 

two goals. A review of the factors the 

Council considered is provided in the 

preamble to the proposed rule, section 

2.4 of the analysis prepared for this 

action, and records of Council 

deliberation. 

Comment 4: The confidentiality 

standards applied to data used in the 

analysis compromised the Council’s 

decision making. Much of the WAG 

fishery harvested by catcher vessels has 

been processed by facilities in Adak 

since 1999. The commenter raises 

concerns about confidentiality 

standards applied both in the EIS 

prepared for the Program and the 

analysis conducted for this action. The 

commenter asserts that applying data 

confidentiality standards to catch data 

from LAPPs is a bad policy. 

Response: Due to the limited number 

of participants in the WAG fishery, the 

Council and NMFS are unable to release 

information in the analysis concerning 

processing in specific locations because 

doing so would reveal confidential 

information. Section 402(b)(3) of the 

MSA allows NMFS to ‘‘release or make 

public any such information in any 

aggregate or summary form which does 

not directly or indirectly disclose the 

identity of any person who submits 

such information.’’ Similarly, data from 

State of Alaska fish tickets are 

considered confidential and may not be 

released by the State, NMFS, or the 

Council under the requirements of State 

of Alaska statute except in an aggregate 

form that would not reveal data from an 

individual submitter (Alaska Statute, 

sec.16.05.815). However, the Council 

was generally aware of the overall 

patterns of harvesting and processing in 

the WAG fishery and the participants in 

that fishery through public testimony 

and the limited data available in the 

analysis. Constraints on the release of 

confidential information did not affect 

the ability of the Council or NMFS from 

adequately considering the effects of its 

actions. Public comment from the 

commenter to the Council and NMFS 

noted the historic and current 

processing activities of WAG crab at the 

facilities of Adak. 

Comment 5: The commenter asserts 

that this action would undermine 

existing investments in shoreside 

processing facilities in Adak. The 

commenter notes that the current 

dependence of Adak on crab is 

compromised by the ability of persons 

to use a stationary floating crab 

processor instead of a shoreside facility 

to custom process crab. The commenter 

states that section 303A(c)(5) of the 

MSA requires NMFS to consider 

‘‘current and historical’’ participation by 

fishing communities. 

Response: The Council and NMFS 

considered current and historic 

participation of Adak, and other fishing 

communities in the development and 

approval of this action. Additional 

detail on the fishing communities and 

their current and historic participation 

in the fishery is provided in section 2.4 

of the analysis. 

While NMFS agrees with the 

commenter that section 303A(c)(5) 

requires NMFS to consider that current 

and historical participation of fishing 

communities during the development of 

a new LAPP, this action modifies an 

existing LAPP and under section 

303A(i), the requirements of section 

303A(c)(5) are inapplicable to this 

action. However, pursuant to other 

provisions of the MSA, NMFS has 

determined that this action would not 

undermine the ability for crab to be 

custom processed in Adak relative to 

other locations in the Aleutian Islands. 

The decision by an IPQ holder to 

process catch in Adak, or at any other 

location, will be based on a wide array 

of factors such as the potential costs of 

any custom processing fees, throughput 

of the facility, the ability of the facility 

mangers to meet the demands of the 

custom processors, and other economic 

factors. Allowing custom processing to 

occur at both stationary floating 

processors and shoreside facilities 

provides competition among processors 

and addresses concerns raised by the 

Council that limiting processing to 

shoreside facilities in the Aleutian 

Islands could limit competition. 

Sections 2.3.13 and 2.4.3 of the analysis 

and the response to Comment 2 provide 

additional rationale for allowing 

stationary floating processors and 

shoreside facilities to custom process 

crab in the Aleutian Islands. 

Comment 6: The analysis does not 

clarify that PQS holders would be the 

primary beneficiaries of this action. 

Facility operators who choose to custom 

process catch will not benefit from this 

action. 

Response: NMFS disagrees with the 

characterization of the analysis. The 

analysis, particularly sections 2.4 and 

3.7, describe the potential effects of the 

action on harvesters, processing facility 

operators, PQS and IPQ holders, and 

communities. Section 2.4 of the analysis 

describes the potential benefits that PQS 

holders would receive from this action. 

However, the analysis also describes 

potential benefits from this action for 

facility operators, IPQ holders who may 

or may not be PQS holders, harvesters, 

and communities. The analysis contains 

a comprehensive discussion of the 

25456 Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 

effects of this action and the potential 

beneficiaries. 

Comment 7: The alternatives 

considered do not adequately address 

the Council’s purpose and need 

statement for the action. Specifically, 

the action does not contribute to 

community stability or provide for 

efficient prosecution of the fishery. The 

commenter asserts that 75 percent of the 

west region designated Western 

Aleutian Islands golden king crab 

(WAG) Class A IFQ was not harvested 

due to additional custom processing 

fees that made the operations 

uneconomic. The commenter asserts 

that PQS and IPQ for west designated 

WAG crab should be extinguished but 

that regional delivery requirements 

should be retained. 

Response: The Council considered a 

range of alternatives that would address 

the purpose and need statement and 

NMFS determined that the range of 

alternatives considered by the Council 

addressed the purpose and need 

statement for this action. The analysis 

examines the impacts of the exemption 

on community stability and effects on 

processors in section 2 of the document 

(see ADDRESSES). The commenter does 

not provide any specific examples that 

describe how the proposed action failed 

to address the Council’s purpose and 

need statement. Without additional 

detail, NMFS is unaware of any 

information omitted from the analysis. 

The commenter incorrectly states that 

75 percent of the west designated WAG 

Class A IFQ has been unharvested. A 

review of NMFS landing data from the 

first three years of the Program indicates 

that in only one year (2006⁄2007) was a 

substantial portion of the west 

designated WAG Class A IFQ 

unharvested. NMFS cannot provide a 

more precise description of the use of 

west designated WAG Class A IFQ due 

to limitations on the release of 

potentially confidential fishery data. 

Furthermore, NMFS has no information 

to conclude that the WAG Class A IFQ 

that was left unharvested was due to 

additional custom processing fees. 

Finally, the commenter’s statements 

about eliminating PQS and IPQ for west 

designated WAG crab are noted, but are 

not relevant to the purpose of this action 

which is to modify IPQ use cap 

calculation procedures to provide 

greater opportunities for more efficient 

custom processing operations. 

Comment 8: The commenter supports 

the proposed action and notes that the 

ability for processors to consolidate 

processing in the north region C. opilio 

fishery will benefit the community of 

Saint Paul, Alaska. The commenter 

describes the relationships among 

various processing companies and local 

government entities, and notes that 

economically efficient crab processing 

operations are necessary to benefit the 

community. 

Response: NMFS notes the support for 

the rule and the importance of crab 

processing to Saint Paul. 

Comment 9: The commenter provides 

some detailed information about the 

business arrangements that exist among 

various local government agencies and 

companies involved in crab processing 

in Saint Paul. The commenter notes that 

the text of section 2.4.2 of the analysis 

states that ‘‘a plant could be owned and 

operated by two distinct [IPQ] share 

holders, with each [IPQ] share holder 

credited with only its own [IPQ] share 

holdings for purposes of applying the 

cap.’’ While the preamble to the 

proposed rule states that ‘‘[a] person 

who holds IPQ and who owns a 

processing facility would be credited 

with only the amount of IPQ crab used 

by that person, or any affiliates of that 

person, when calculating IPQ use caps.’’ 

The commenter asks if these two 

statements are consistent, and whether 

the specific processing operations 

described by the commenter would be 

permitted. 

Response: NMFS cannot comment on 

whether the specific business 

arrangements described by the 

commenter would be subject to the 

custom processing use cap exemption 

due to incomplete knowledge about the 

specific conditions that may exist 

among the parties in question. However, 

the statements made in section 2.4.2 and 

the preamble to the proposed rule are 

not inconsistent. In cases where an IPQ 

holder is not affiliated with another IPQ 

holder then those two separate and 

distinct IPQ holders may process their 

IPQ crab at the same crab processing 

facility, provided they are otherwise 

eligible to receive the exemption. The 

preamble to the proposed rule notes that 

‘‘affiliation’’ is defined in regulation at 

50 CFR 680.2. Provided an IPQ holder 

is not defined as affiliated with another 

IPQ holder, then it is possible that two 

IPQ holders could own a portion of a 

crab processing facility, not be 

considered affiliated according to 50 

CFR 680.2, and process their IPQ at that 

commonly owned facility. In that case, 

each IPQ holder would be considered to 

use only the amount of IPQ that it 

processed at the facility and only that 

IPQ would be credited against that 

person’s IPQ use cap. 

Comment 10: The commenter 

supports the definition of the specific 

processing facilities at which the 

custom processing exemption would 

apply, and notes that it is consistent 

with section 122(e) of the MSA. 

Response: NMFS notes the comment 

and agrees that the final rule is 

consistent with section 122(e) of the 

MSA. 

Comment 11: The commenter 

supports applying an exemption to the 

IPQ use cap calculations for PQS that is, 

or was, subject to a ROFR. 

Response: NMFS notes the comment. 

Comment 12: The commenter raises 

general concerns about fisheries 

management asserting that fishery 

policies have been overly liberal and 

have not been to the benefit of American 

citizens. The commenter asserts that 

NMFS is biased and should not be 

allowed to manage fisheries. 

Response: The comments are not 

specifically related to the proposed rule 

and recommend broad changes to 

fisheries management that are outside of 

the scope of this action. 

Changes from the Proposed Rule 

NMFS did not make any changes from 

the proposed rule. 

Classification 

The Assistant Administrator for 

Fisheries, NOAA, has determined that 

Amendment 27 is necessary for the 

conservation and management of the 

BSAI crab fisheries and that it is 

consistent with the MSA and other 

applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Final Regulatory Flexibility Analysis 

(FRFA) 

A FRFA was prepared for this rule, as 

required by section 604 of the 

Regulatory Flexibility Act (RFA). Copies 

of the FRFA prepared for this final rule 

are available from NMFS (see 

ADDRESSES). The FRFA incorporates the 

IRFA, a summary of the significant 

issues raised by the public comments in 

response to the IRFA, NMFS’ responses 

to those comments, and a summary of 

the analyses completed to support the 

action. A summary of the FRFA follows. 

Why Action by the Agency is Being 

Considered and Objectives of, and Legal 

Basis for, the Rule 

The FRFA describes in detail the 

reasons why this action is being 

proposed, describes the objectives and 

legal basis for the rule, and discusses 

both small and non-small regulated 

entities to adequately characterize the 

fishery participants. The MSA provides 

the legal basis for the rule, as discussed 

in this preamble. The objectives of the 

rule are to (1) implement the statutory 

Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 25457 

requirements of section 122(e) of the 

MSRA, modify IPQ use caps apply to a 

person who is processing IPQ crab 

through contractual arrangements with 

the facility owners to provide greater 

flexibility in processing operations, and 

(3) modify IPQ use caps that limit the 

amount of IPQ that may be used at a 

facility by persons processing Eastern 

Aleutian Islands golden king crab and 

Western Aleutian Islands red king crab. 

Number of Small Entities to Which the 

Final Rule Would Apply 

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 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 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. NMFS 

plans to issue new guidance in the near 

future. 

The FRFA contains a description and 

estimate of the number of small entities 

to which the rule would apply. 

Currently, 29 processors hold 

processing shares. Estimates of large 

entities were made, based on available 

records of employment information on 

participation in processing activities in 

other fisheries, and analysts’ knowledge 

of foreign ownership of vertically 

integrated processing companies. Of the 

recipients of PQS, 11 are estimated to be 

large entities, leaving 18 small entities 

among the directly regulated universe 

under consideration. 

Public Comments Received on the IRFA 

NMFS received one public comment 

on the IRFA or on the economic impacts 

of the rule. That comment is addressed 

in the Response to Comment section of 

this preamble (see response to Comment 

3) and the FRFA prepared for this action 

(see ADDRESSES). 

Projected Reporting, Recordkeeping, 

and Other Compliance Requirements 

This rule would not change existing 

reporting, recordkeeping, or other 

compliance requirements. 

Comparison of Alternatives 

All the directly regulated individuals 

would be expected to benefit from the 

preferred alternative, Alternative 2 

(described in this rule) relative to the 

status quo alternative because it relieves 

individuals from requirements that limit 

their ability to consolidate processing 

operations that may provide additional 

benefits relative to the status quo. Of the 

two alternatives considered, status quo 

and this action, this action minimizes 

adverse economic impacts on the 

individuals that are directly regulated. 

Although the alternatives under 

consideration in this action would have 

distributional and efficiency impacts for 

directly regulated small entities, in no 

case are these combined impacts 

expected to be substantial. The status 

quo alternative would not allow the 

additional processing efficiencies that 

were the motivation for the action. 

However, exempting processors from 

use caps under custom processing 

arrangements would provide additional 

processing opportunities for small 

entities that wish to reduce costs by 

consolidating operations with other 

processors. Although neither of the 

alternatives is expected to have any 

significant economic or socioeconomic 

impacts, the preferred Alternative 2 

minimizes the potential negative 

impacts that could arise under 

Alternative 1, the status quo alternative. 

Small Entity Compliance Guide 

NMFS has posted a small entity 

compliance guide on its website at 

http://www.fakr.noaa.gov/ 

sustainablefisheries/crab/crfaq.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. Contact NMFS to request 

a hard copy of the guide (see 

ADDRESSES). 

List of Subjects in 50 CFR Part 680 

Alaska, Fisheries. 

Dated: May 21, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ 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 

■ 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. 

■ 2. In § 680.7, paragraphs (a)(7) and 

(a)(8) are revised, and paragraph (a)(9) is 

added to read as follows: 

§ 680.7 Prohibitions. 

* * * * * 

(a) * * * 

(7) For an IPQ holder to use more IPQ 

crab than the maximum amount of IPQ 

that may be held by that person. Use of 

IPQ includes all IPQ held by that 

person, and all IPQ crab that are 

received by any RCR at any shoreside 

crab processor or stationary floating crab 

processor in which that IPQ holder has 

a 10 percent or greater direct or indirect 

ownership interest unless that IPQ crab 

meets the requirements described in 

§ 680.42(b)(7). 

(8) For a shoreside crab processor or 

stationary floating crab processor that 

does not have at least one owner with 

a 10 percent or greater direct or indirect 

ownership interest who also holds IPQ 

in that crab QS fishery, to be used to 

receive in excess of 30 percent of the 

IPQ issued for that crab fishery unless 

that IPQ crab meets the requirements 

described in § 680.42(b)(7). 

(9) For any shoreside crab processor 

or stationary floating crab processor east 

of 174 degrees west longitude to process 

more than 60 percent of the IPQ issued 

in the EAG or WAI crab QS fisheries. 

* * * * * 

■ 3. In § 680.42, paragraph (b)(2) is 

revised, and paragraph (b)(7) is added to 

read as follows: 

§ 680.42 Limitations on use of QS, PQS, 

IFQ and IPQ. 

* * * * * 

(b) * * * 

(2) A person may not use more than 

60 percent of the IPQ issued in the BSS 

crab QS fishery with a North region 

designation during a crab fishing year 

except that a person who: 

(i) Holds IPQ; and 

(ii) Has a 10 percent or greater direct 

or indirect ownership interest in the 

shoreside crab processor or stationary 

25458 Federal Register / Vol. 74, No. 101 / Thursday, May 28, 2009 / Rules and Regulations 

floating crab processor where that IPQ 

crab is processed will not be considered 

to use any IPQ in the BSS crab QS 

fishery with a North region designation 

if that IPQ meets the requirements 

described in paragraph (b)(7) of this 

section. 

* * * * * 

(7) Any IPQ crab that is received by 

an RCR will not be considered use of 

IPQ by an IPQ holder who has a 10 

percent or greater direct or indirect 

ownership interest in the shoreside crab 

processor or stationary floating crab 

processor where that IPQ crab is 

processed under § 680.7(a)(7) or 

paragraph (a)(8) of this section if: 

(i) That RCR is not affiliated with an 

IPQ holder who has a 10 percent or 

greater direct or indirect ownership 

interest in the shoreside crab processor 

or stationary floating crab processor 

where that IPQ crab is processed; and 

(ii) The following conditions apply: 

(A) The IPQ crab is: 

(1) BSS IPQ crab with a North region 

designation; 

(2) EAG IPQ crab; 

(3) PIK IPQ crab; 

(4) SMB IPQ crab; 

(5) WAG IPQ crab provided that IPQ 

crab is processed west of 174 degrees 

west longitude; or 

(6) WAI IPQ crab; and 

(B) That IPQ crab is processed at: 

(1) Any shoreside crab processor 

located within the boundaries of a home 

rule, first class, or second class city in 

the State of Alaska in existence on the 

effective date of this rule; or 

(2) Any stationary floating crab 

processor that is: 

(i) Located within the boundaries of a 

home rule, first class, or second class 

city in the State of Alaska in existence 

on the effective date of this rule; 

(ii) Moored at a dock, docking facility, 

or at a permanent mooring buoy, unless 

that stationary floating crab processor is 

located within the boundaries of the city 

of Atka in which case that stationary 

floating crab processor is not required to 

be moored at a dock, docking facility, or 

at a permanent mooring buoy; and 

(iii) Located within a harbor, unless 

that stationary floating crab processor is 

located within the boundaries of the city 

of Atka on the effective date of this rule 

in which case that stationary floating 

crab processor is not required to be 

located within a harbor; or 

(C) The IPQ crab is: 

(1) Derived from PQS that is, or was, 

subject to a ROFR as that term is defined 

at § 680.2; 

(2) Derived from PQS that has been 

transferred from the initial recipient of 

those PQS to another person under the 

requirements described at § 680.41; 

(3) Received by an RCR who is not the 

initial recipient of those PQS; and 

(4) Received by an RCR within the 

boundaries of the ECC for which that 

PQS and IPQ derived from that PQS is, 

or was, designated in the ROFR. 

* * * * * 

[FR Doc. E9–12430 Filed 5–27–09; 8:45 am] 

BILLING CODE 3510–22–S