        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 070809454-7459-01]
        RIN 0648-AV82
        Marine Mammals; Advance Notice of Proposed Rulemaking

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

          ACTION:
          Advance notice of proposed rulemaking (ANPR); request for comments.

          SUMMARY:
          NMFS is considering proposing changes to its implementing regulations, and criteria governing the issuance of permits for scientific research and enhancement activities under section 104 of the Marine Mammal Protection Act (MMPA), and is soliciting public comment to better inform the process. Permits to take marine mammal species are governed by the MMPA and NMFS implementing regulations at 50 CFR part 216. For threatened and endangered marine mammal species, permits are also governed by the Endangered Species Act (ESA) and 50 CFR part 222. On May 10, 1996, a final rule was published establishing requirements for issuing permits to take, import, or export marine mammals (including endangered and threatened marine mammals) and marine mammal parts under NMFS jurisdiction for purposes of scientific research and enhancement, photography, and public display (for captures and initial imports), and providing procedures for determining the disposition of rehabilitated stranded marine mammals. NMFS intends to streamline and clarify general permitting requirements and requirements for scientific research and enhancement permits, simplify procedures for transferring marine mammal parts, possibly apply the General Authorization (GA) to research activities involving Level A harassment of non-ESA listed marine mammals, and implement a 'permit application cycle' for application submission and processing of all marine mammal permits. NMFS intends to write regulations for photography permits and is considering whether this activity should be covered by the GA. Any other recommendations received in response to this ANPR regarding regulations at 50 CFR part 216 will be considered prior to proposed rulemaking.

          DATES:

          Written comments must be received at the appropriate address or facsimile (fax) number (see ADDRESSES) no later than 5 p.m. local time on November 13, 2007.

          ADDRESSES:
          Written comments should be sent to: Chief, Permits, Conservation and Education Division, Attn: Permit Regulations ANPR, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910.
          Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.

          Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is NMFS.Pr1Comments@noaa.gov. Include in the subject line of the e-mail comment the following document identifier: Permit Regulations ANPR, or
          The Federal e-Rulemaking Portal: http://www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          Amy Sloan, Fishery Biologist, Office of Protected Resources, NMFS, at (301) 713-2289.

        SUPPLEMENTARY INFORMATION:

        NMFS has authority, delegated from the Secretary of Commerce, to issue permits for research and enhancement activities under Section 104 of the MMPA (16 U.S.C. 1361 et seq.) and section 10(a)(1)(A) of the ESA (16 U.S.C. 1531 et seq.). Permits to take marine mammal species are governed by the MMPA, ESA, and NMFS implementing regulations at 50 CFR parts 216 and 222. As a Federal agency, issuance of permits by NMFS is also governed by the procedural requirements and provisions of the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA).

        The APA is the law under which federal regulatory agencies, including NMFS, create the rules and regulations necessary to implement and enforce major legislative acts such as the MMPA and ESA. Under the APA, NMFS is required to publish in the Federal Register descriptions of rules of procedure, substantive rules of general applicability, and make available to the public statements of policy and interpretation, administrative staff manuals and instructions. NEPA requires Federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. The requirements of NEPA apply to NMFS “decision-making process” for issuance of permits. The NOAA Administrative Order No. 216-6 (NAO 216-6), Environmental Review Procedures for Implementing the National Environmental Policy Act, is also an agency guidance document for applying the requirements of NEPA to agency actions, including permit issuance.
        The following paragraphs provide some possible regulatory changes being considered by NMFS. The changes being considered are found in 50 CFR part 216, most in subpart D, although comments or recommendations regarding any of the subparts will be considered. The sections identified are either followed by recommendations from NMFS on possible alternatives or changes to the current language, or a general solicitation by NMFS to the public for comments pertaining to that section. Several of the regulatory changes would require an amendment or change to the MMPA before implementation could be effective.
        Part 216, Regulations Governing the Taking and Importing of Marine Mammals
        Subpart A - Introduction
        NMFS does not have any recommended changes for § 216.1 (Purpose) or 216.2 (Scope). Do either of these sections require further consideration or clarification?

          § 216.3 Definitions: Are there existing definitions relevant to the marine mammal permitting process that need clarification? Are there any other definitions that need clarification, or definitions that need to be added to these regulations?

        Are there any other sections in Subpart A whose language requires further consideration or clarification?

        Subpart B - Prohibitions

          § 216.14 Marine mammals taken before the MMPA: Should we add provisions to authorize export in addition to import under § 216.14 (c)?

          § 216.15 Depleted species: Should we clarify that any species or population stock listed as endangered or threatened under the ESA is automatically listed as depleted under the MMPA?
        Do any of the remaining sections in Subpart B require further consideration or clarification?
        Subpart C - General Exceptions
        Several regulatory changes are being considered by NMFS in this subpart and include, but are not limited to, the following:

          § 216.23 Native exceptions: Does NMFS need to clarify sections regarding transfer of marine mammal parts? Do we need to include provisions for authorizing transfers of marine mammal parts for research purposes? If so, be explicit on how this should occur and whether this should be combined with transfers of other marine mammal parts legally taken, or kept under this section.

          § 216.25 Exempted marine mammals and marine mammal products: Should this section be consolidated with other sections (e.g., incorporate this § 216.25 into §§ 216.14 and 216.12; remove § 216.25)? Do we then reserve this section (or use another section) for a consolidated parts transfer section (for parts taken legally under §§ 216.22, 216.26, and 216.37) if possible? Subpart C is a substantial component of part 216. Therefore, any comments or recommendations regarding whether the language in other sections in subpart C require further consideration or clarification would be appreciated.
        Subpart D - Special Exceptions

          § 216.31 Definitions: Are there any definitions relevant to marine mammal permitting procedures that need to be added?

          § 216.32 Scope: Does the scope of this subpart need to be modified or clarified in any manner?

          § 216.33 Permit application submission, review, and decision procedures: Generally, NMFS is considering reorganizing and/or consolidating permitting regulation §§ 216.33 (Permit application, submission, review, and decision procedures), 216.34 (Issuance criteria), 216.35 (Permit restrictions), 216.36 (Permit conditions), and 216.41 (Permits for scientific research and enhancement) where possible. We have included some specific recommendations; however any recommendations where regulations need consolidation or simplification in the following sections, and how this might be achieved, would be considered.

          § 216.33 (c) Initial review: NMFS regulations currently require the agency to determine that a proposed permit is categorically excluded from the need to prepare further environmental documentation, or to prepare an environmental assessment (EA) with a finding of no significant impact (FONSI) or a final environmental impact statement (EIS), during initial review of the application and prior to making it available for public comment and review pursuant to § 216.33(d). This sequence precludes public input on the application that may influence NMFS' determination regarding whether the activity requires an EA or EIS. Therefore, NMFS is considering a revision to this section, and the corresponding language at 216.33(d) such that NEPA documentation is not required at the time an application is made available for public review and comment. NMFS Administrative Order 216-6 stipulates that issuance of scientific research, enhancement, photography, and public display permits pursuant to the MMPA and issuance of research permits pursuant to the ESA are, in general, categorically excluded from the need to prepare further environmental documentation because, as a class, they do not have significant environmental impacts. With this recommended change NMFS would continue to evaluate the potential environmental impacts of permits, but could conduct this assessment after the close of the comment period on the application, when comments from the public and other agencies could be considered in that assessment.

          § 216.33(d) Notice of receipt and application review: Consistent with the proposed changes to § 216.33(c) regarding NEPA, NMFS proposes to revise the requirements for including a NEPA statement in the notice of receipt of an application. Where NMFS believes a permit would be categorically excluded from the need to prepare further environmental documentation, the notice will so state. If that determination is based on information in an existing EA/FONSI or Final EIS, that document will be referenced in the notice and made available simultaneously with the application. When no previous NEPA documentation relevant to the proposed activity is available, the notice will solicit public input on the appropriate level of NEPA documentation concurrent with review of the application. After the close of the comment period on the application, NMFS would determine the appropriate level of NEPA documentation for the activity, in consideration of comments received, information presented in the application, and the best available information. NMFS' final NEPA determination on a specific application would be published in the Federal Register prior to or concurrent with notice of permit issuance or denial pursuant to § 216.33(e).

          § 216.33(e) Issuance or denial procedures: Consistent with MMPA section 104(d), the current regulations state that “within 30 days of the close of the public comment period the Office Director will issue or deny a special exception permit.” NMFS is considering revising this section to reconcile the ESA section 7 and NEPA compliance timelines with statutory requirements for when permit decisions must be made relative to the close of the comment period. For example, when NMFS determines, subsequent to the public comment period on an application, that issuance of a proposed permit requires preparation of an EA or EIS, processing of the application cannot be completed within 30 days of the close of the comment period. Under the current regulations, NMFS would have to deny the permit because the appropriate NEPA documentation could not be completed in time to support a decision to issue. Rather than deny such permits, NMFS proposes to defer a decision on the application until the appropriate NEPA documentation is completed. Similarly, when formal consultation is required under section 7 of the ESA, which allows 135 days or more for consultation and completion of a Biological Opinion, processing of the application cannot be completed within 30 days of the close of the comment period. Rather than deny such permits, NMFS proposes to defer a decision on the application until the section 7 consultation is completed. In both cases NMFS would publish a notice in the FR within 30 days of the close of the comment period announcing that a decision on the specific application has been deferred pending completion of the appropriate NEPA and ESA section 7 analyses.

          § 216.33(e)(4): For permits involving marine mammals listed as endangered or threatened under the ESA, NMFS is required to determine whether the permit is consistent with the requirements of section 10(d) of the ESA. NMFS would appreciate comments on how to determine whether an applicant has applied for a permit “in good faith” and whether the permit “will operate to the disadvantage of such endangered or threatened species.”

          § 216.34 Issuance criteria: NMFS would appreciate any recommendations on whether or how this section should be clarified or consolidated with other sections. In support of the applicant's demonstration that the proposed activity is humane, NMFS is considering requiring proof of Institutional Animal Care and Use Committee approval of the proposed activity where such approval would be required pursuant to the Animal Welfare Act. Any comments on this would be appreciated.

          § 216.35 Permit restrictions: One consideration by NMFS is to provide for only minor amendments to original permits (see § 216.39), not major vs. minor as currently exists, which would require modifying language in this section. Any proposed change resulting in the need for an increased level of take or risk of adverse impact above those authorized in the original permit would no longer be considered under an amendment, and would require a new permit application. Since the current regulatory process for reviewing and issuing major amendments requires a public comment and review period, the time it takes to issue a major amendment is consistent with the time it takes to process a new application. Amendments would be issued that only covered those activities that are currently consistent with a minor amendment. One exception to this would be that proposed changes in location, species, and numbers where no take is involved (e.g., import of parts or specimens legally acquired by a foreign institution) would be a minor amendment. Similarly, NMFS is considering removing the part in § 216.35(b) that provides for a 1 year extension of the original permit. If this change were implemented neither the life of the original permit nor any subsequent amendment would exceed five years from the effective date of the permit. NMFS would appreciate any comments on this recommendation.
        The regulations require individuals conducting permitted activities to possess qualifications commensurate with their duties and responsibilities, or be under the direct supervision of a person with such qualifications. NMFS is seeking input on whether it should promulgate regulations specifying minimum standards for such qualifications or specific criteria by which applicants' qualifications and those of other personnel listed in the application could be evaluated.

          § 216.36 Permit conditions: NMFS is considering consolidating this section with other sections of permit regulations (e.g., § 216.35, Permit restrictions) that also contain conditions pertinent to marine mammal permits. NMFS would appreciate any recommendations on how this might best be achieved.

          § 216.37 Marine mammal parts: This section of the regulations is the subject of much confusion in interpretation and implementation. This section is similar to the transfer requirements in § 216.22. NMFS is interested in clarifying and consolidating this section with other sections (§§ 216.22 and 216.26) involving the transfer of parts legally taken, such that the same provisions would apply to the subsequent transfer of any marine mammal part that was already legally taken under the MMPA and/or ESA. Should there be different requirements for the transfer of parts legally taken from an ESA-listed versus a non ESA-listed marine mammal? Does there need to be any clarification on how to apply or receive authorization for a transfer, and for determining who can be authorized to receive marine mammal parts and what documentation is required? Are the reporting requirements adequate and necessary, and should they be modified in any way? Does the language in § 216.37(d) regarding export and re-import need to be clarified, and if so, how?
        NMFS seeks recommendations for developing regulatory language to streamline and govern the issuance of research permits involving collection, receipt, import, export, and archiving marine mammal parts for future opportunistic research. Currently marine mammal parts taken or obtained under permit may be transferred to another person pursuant to this section of the regulations, but there is no mechanism for facilitating the initial collection of marine mammal parts by institutions for eventual use for research purposes where the bona fide criteria required in section 104(c)(3) of the MMPA cannot be met for each and every part obtained by the institution. We are considering establishing guidelines in this section for determining when such activities would satisfy the bona fide scientific purpose requirement when the purpose of the initial receipt of the part may be unknown. We are also considering establishing standardized documentation and reporting requirements for permits involving marine mammal parts to demonstrate that the parts are taken legally and in a humane manner and that all requirements for applicable domestic and foreign laws have been met regarding importation and exportation.
        NMFS is also considering adding to this section requirements and procedures governing the development, use, distribution or transfer, and prohibited sale of cell lines derived from marine mammal tissues. We are also considering similar regulations pertaining to gametes used by the public display industry and research community in assisted reproductive techniques of captive marine mammals. Any recommendations or comments on these topics would be appreciated.

          § 216.39 Permit amendments: One consideration already mentioned (in § 216.35) is to provide for only one amendment type, not major vs. minor. This would require consolidating this section considerably. Under this change the language in this section would be consistent with the following:
        (a) General. Special exception permits may be amended by the Office Director. Amendments may be made to permits in response to, or independent of, a request from the permit holder. Amendments must be consistent with the Acts and comply with the applicable provisions of this subpart. Special exception permits may be amended by the Office Director without need for further public review or comment.
        (1) An amendment means any change to the permit specific conditions under Sec. 216.36(a) provided that the amendment does not result in any of the following:
        (i) An increase in the number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected;
        (ii) A change in the manner in which these marine mammals may be taken, imported, exported, or otherwise affected, where such change would result in an increased level of take or risk of adverse impact; and
        (iii) A change in the location(s) in which the marine mammals may be taken, from which they may be imported, and to which they may be exported, as applicable.
        (2) A request involving changes to the location, species, and number of marine mammal parts or specimens received, imported, or exported, where no take is involved, would qualify as an amendment.
        (b) Amendment requests and proposals.
        (1) Requests by a permit holder for an amendment must be submitted in writing and include the following:
        (i) The purpose and nature of the amendment;

        (ii) Information, not previously submitted as part of the permit application or subsequent reports, necessary to determine whether the amendment satisfies all issuance criteria set forth at Sec. 216.34, and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
        (iii) Any additional information required by the Office Director for purposes of reviewing the proposed amendment.
        (2) If an amendment is proposed by the Office Director, the permit holder will be notified of the proposed amendment, together with an explanation.
        (c) Review of proposed amendments.
        (i) After reviewing all appropriate information, the Office Director will provide the permit holder with written notice of the decision on a proposed or requested amendment, together with an explanation for the decision.
        (ii) An amendment will be effective upon a final decision by the Office Director.

          § 216.40 Penalties and permit sanctions: NMFS is considering specifying criteria and procedures for the suspension, revocation, modification, and denial of scientific research or enhancement permits, in addition to, but consistent with, the provisions of subpart D of 15 CFR part 904. For example, NMFS is considering promulgating specific regulations for suspension, revocation, modification, and denial of scientific research and enhancement permits for reasons not related to enforcement actions.

          § 216.41 Permits for scientific research and enhancement: Should NMFS attempt to streamline, clarify and consolidate this large section with existing general permitting requirements? If so, any specific language toward that end would be considered. One change we are considering is the requirements for public display of marine mammals held under a scientific research permit in § 216.41(c)(1)(vi)(A) such that marine mammals may be on display if necessary to address the research objectives or if authorized by the Office Director, in addition to the existing requirements in § 216.41(c)(1)(vi)(B) and (C). We would appreciate any comments on if this should be changed. We are also considering adding a new section, § 216.41(c)(3), to authorize via an enhancement permit the long-term captive maintenance and incidental public display of ESA-listed species originally obtained under a research or enhancement permit when such activities have been completed or are not able to be carried out and the animals cannot be returned to the wild. Such permits would require that an appropriate educational program is established and approved by Office Director and that the animals are made available for research or enhancement activities at the request of the Office Director. In addition, if we implemented the General Authorization changes (see § 216.45), then those changes would also apply to this section for non-strategic marine mammals.

          § 216.42 Photography [Reserved]: NMFS may propose regulations similar to those for the General Authorization (§ 216.45). We are also considering limiting the number of personnel that may be involved in order to eliminate potential problems with permit holders using such authorization for ecotourism, since the MMPA does not provide exemptions for harassment of marine mammals via ecotourism permits. Any specific recommendations as to what these regulations should or should not include would be considered.

          § 216.45 General Authorization for Level B harassment for scientific research: NMFS is considering modifications to this section that would make General Authorizations (GAs) available based on the status of the target stock, rather than strictly based on the level of harassment. The recommended change would make a GA available for all Level A and Level B research on all non-strategic stocks of MMPA species. A GA would also be available for stocks defined as strategic under the MMPA, but only for Level B research activities. Under this suggested change a GA would not be appropriate for Level A research on ESA listed species, or depleted and strategic stocks under the MMPA. A number of paragraphs throughout this section would have to change as a result of this recommendation. This change, prior to implementation, would require a similar change in section 104(c)(3)(C) of the MMPA.
        Regardless of whether changes are made to allow the GA to apply to level A harassment, NMFS proposes to modify this section to clarify that the description of methods in the letter of intent must specify the number of marine mammals, by species or stock, that would be taken, including a justification for such sample sizes.
        NMFS is also considering revising the terms and conditions of the GA regulations to clarify that any activity conducted incidental to the research, such as commercial or educational filming or photography, would require prior written approval from NMFS, and such activities would be subject to the same conditions as those specified at § 216.41(c)(1)(vii) for scientific research and enhancement permits, i.e., the conduct of such incidental activities must not involve any taking of marine mammals beyond what is necessary to conduct the research.

          Other considerations: NMFS is also considering adding new sections to the regulations. One such consideration would place the permit application and amendment process on a cycle. One option would be to accept permit applications and amendment requests quarterly (i.e., during any one of four three-month cycles per year). Applicants would have firmly established deadlines (made known through FR notification, mailings, and web site) to assist them in planning the submission of their application relative to the proposed start of their research. Another option would be to accept applications and amendments only twice a year, during one of two six-month cycles
        One possible disadvantage for applicants under either alternative is that if a submission deadline were missed an applicant would have to wait three (option 1) to six (option 2) additional months for their permit. Applicants are used to requesting amendments at any time. They too would be affected by this modification and a request for an amendment could only happen once a permit cycle. However, a permit cycle ultimately makes receipt of permits predictable and helps researchers plan the submission of their applications with respect to proposed initiation of their work.
        For applications to conduct research on non-ESA listed species, NMFS would aim for an average processing time of 90 days such that processing an application submitted by the deadline for one cycle could be completed by the end of the next cycle (three months later). Another advantage to this is that the average processing time of applications involving ESA-listed marine mammal species would likely be reduced because we would be able to conduct batched consultations and analyses under the ESA and NEPA. In cases where programmatic NEPA documents and corresponding ESA section 7 consultations have been completed, an average processing time of 90 to 120 days could be possible for those research activities covered by the documents.
        Public Involvement

        NMFS invites the public to submit comments on the current regulations, recommended changes to the current regulations that might be considered in a new set of proposed regulations, and any relevant issues pertaining to the permitting process that might be considered as part of future proposed rulemaking. Be as specific as possible including providing draft language if appropriate. NMFS does not intend to convene public meetings under this ANPR. Comments and recommendations received under this ANPR will be reviewed as part of a proposed rulemaking which will be the next step in this regulatory process.

          Dated: September 7, 2007.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. E7-18106 Filed 9-12-07; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 680
        [Docket No. 080630808-8814-01]
        RIN 0648-AW97
        Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program

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

          ACTION:
          Proposed rule; request for comments.

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

          DATES:
          Comments must be received no later than January 26, 2009.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AW97,” by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Fax: 907-586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

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

          FOR FURTHER INFORMATION CONTACT:
          Glenn Merrill, 907-586-7228, or Julie Scheurer, 907-586-7356.

        SUPPLEMENTARY INFORMATION:
        The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP). The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendments 18 and 19 to the FMP implemented the BSAI Crab Rationalization Program (CR Program). Regulations implementing Amendments 18 and 19 were published on March 2, 2005 (70 FR 10174), and are located at 50 CFR part 680.
        Background
        Under the CR Program, NMFS issued quota share (QS) to persons based on their qualifying harvest histories in the BSAI crab fisheries during a specific time period. Each year, the QS issued to a person yields an amount of individual fishing quota (IFQ), which is a permit that provides an exclusive harvesting privilege for a specific amount of raw crab pounds, in a specific crab fishery, in a given season. The size of each annual IFQ allocation is based on the amount of QS held by a person in relation to the total QS pool in a crab fishery. For example, a person holding QS equaling 1 percent of the QS pool in a crab fishery would receive IFQ to harvest one percent of the annual total allowable catch (TAC) in that crab fishery. Catcher processor license holders were allocated catcher processor vessel owner (CPO) QS for their history as catcher processors; and catcher vessel license holders were issued catcher vessel owner (CVO) QS based on their catcher vessel history.
        Under the CR Program, 97 percent of the initial allocation of QS was issued to vessel owners as CPO or CVO QS. The remaining 3 percent was issued to vessel captains and crew as “C shares” based on their harvest histories as crew members onboard crab fishing vessels. Of the CVO IFQ, 90 percent is issued as “A shares,” or “Class A IFQ,” which, in most fisheries, are subject to regional landing requirements and must be delivered to a processor holding unused individual processor quota (IPQ). This regional landing requirement is commonly referred to as “regionalization.” The remaining 10 percent of the annual vessel owner IFQ is issued as “B shares,” or “Class B IFQ,” which may be delivered to any processor and are not subject to regionalization. C shares also are not subject to regionalization.

        Processor quota shares (PQS) are long term shares issued to processors. These PQS yield annual IPQ, which represent a privilege to receive a certain amount of crab harvested with Class A IFQ. IPQ are issued for 90 percent of the CVO TAC, creating a one-to-one correspondence between Class A IFQ and IPQ.
        NMFS can issue IFQ to the QS holder directly, or to a crab harvesting cooperative comprised of multiple QS holders. Crab harvesting cooperatives have been used extensively by QS holders to allow them to receive a larger IFQ pool and coordinate deliveries and price negotiations among numerous vessels. Most QS holders have joined cooperatives in the first three years of the CR Program, and are likely to continue to do so because of the economic and administrative benefits of consolidating their IFQs.
        IFQ Overages Under Current System
        Under existing regulations, harvesters are prohibited from exceeding the amount of IFQ that is issued to them, either individually, or to their cooperative (see § 680.7(e)(2)). If a harvester delivers more crab than the amount of IFQ that he holds, he has violated existing regulations, commonly known as an overage. Overages can occur either through deliberate actions, or more commonly through unintentional errors such as miscalculating the weight of catch to be delivered relative to the amount of IFQ available. Because harvesters do not know the precise weight of a delivery of crab, estimates made onboard the vessel using a sample of average weight may be lower than the actual delivery weight. If a harvester is making his or her last fishing trip for a season and no additional IFQ is available in his or her account, then an overage may occur. However, in most cases harvesters attempt to account for potential overages by maintaining catch below their IFQ holdings, slightly underharvesting the maximum amount of crab possible.
        Similarly, existing regulations prohibit processors from receiving more Class A IFQ than the amount of unused IPQ that they hold (see regulations at § 680.7(a)(5)). Generally, processors have established relationships with specific harvesters before crab fishing begins and may not have unused IPQ available to receive crab from harvesters that do not have an established relationship with that processor. Under the provisions of the CR Program's Arbitration System, harvesters can choose to commit their Class A IFQ to match the IPQ held by processors (see regulations at § 680.20). Once IFQ shares are committed and matched with a specific amount of IPQ, that IPQ cannot be matched to another harvester without first removing the match from the harvester who committed delivery of Class A IFQ crab to the IPQ held by that processor. Removing a match of Class A IFQ and IPQ requires the consent of the harvester. Therefore, it is possible that a processor holding IPQ may not have any available unmatched IPQ if a harvester were to deliver more Class A IFQ than the amount specified on his IFQ permit. Typically, processors refuse to accept a delivery of Class A IFQ that is greater than the amount of available unmatched IPQ.
        Although matching Class A IFQ and IPQ among the numerous harvesters and processors can be complicated, overages are uncommon. In the first two crab fishing years under the CR Program (2005-2006 and 2006-2007), most of the IFQs were harvested and few overages occurred. There were 16 overages in the first and 25 in the second year under the CR Program. These overages represented less than 0.1 percent (1/1000) of the TAC in each year.
        Currently, catcher vessel crab landings are offloaded and processed by the facility receiving the delivery. Once final weights have been determined, IFQs and IPQs are assigned by the fisherman and processor. Any IFQ overage is noted and referred to NOAA Fisheries Office for Law Enforcement (OLE).
        Need for Proposed Action
        At the request of industry to facilitate operations in the fishery, the Council adopted the following purpose and need statement for this action:

          Under the crab rationalization program, harvesters receive annual allocations of individual fishing quota that provide an exclusive privilege to harvest a specific number of pounds of crab from a fishery. Any harvest in excess of an individual fishing quota allocation is a regulatory violation, punishable by confiscation of crab or other penalties. Precisely estimating catch at sea during the fishery is difficult and costly, due to variation in size of crab, and sorting and measurement requirements. Overages can result from mistakes, by participants attempting to accurately estimate catch. The inability to address overages also impedes flexibility in attempting to optimally harvest IFQ. A provision allowing for post-delivery transfer of individual fishing quota to cover overages could reduce the number of violations, allowing for more complete harvest of allocations, and reduce enforcement costs, without increasing the risk of overharvest of allocations.

        Allowing post-delivery transfers in the crab fisheries is expected to mitigate potential overages, reduce enforcement costs, and allow more complete harvest of allocations. Post-delivery transfers would also increase flexibility to the fleet and allow more efficient use of resources. As an example, this provision could allow harvesters to make landings and settle up IFQ accounts after delivery. In turn, this flexibility would permit harvesters to use vessels already on the fishing grounds without the additional use of fuel to leave boats idle at sea while an IFQ transfer is processed.
        The Proposed Action
        The proposed action would allow post-delivery transfers to cover overages of IPQ as well as Class A IFQ, Class B IFQ, C shares, and CPO IFQ. There would be no limit on the size of a post-delivery transfer or on the number of post-delivery transfers a person could undertake. However, a person could not begin a new fishing trip if any of the IFQ accounts of the IFQ permits available to be used on a vessel were zero or negative, and no person could have a negative balance in an IFQ or IPQ account after June 30, the end of a crab fishing year.
        For IFQ holders, no person would be permitted to begin a new fishing trip in a crab fishery until the overage was accounted for and the IFQ balances of the persons onboard that vessel for all crab fisheries were positive. NMFS proposes to define the term “fishing trip” for purposes of this requirement to provide a clear standard for fishery participants. NMFS proposes that a fishing trip would be defined as the period beginning when a vessel operator commences harvesting crab in a crab QS fishery and ending when the vessel operator offloads or transfers any crab from that crab QS fishery whether processed or unprocessed from that vessel.

        The term “crab QS fishery” is defined under existing regulations at § 680.2 and means all nine crab QS fisheries, but does not include the Western Alaska Community Development Quota (CDQ) Program, and Western Aleutian Islands golden king crab issued to the Adak Community Entity (ACE). The Council specifically tailored this proposed action to address IFQ and IPQ in the crab QS fisheries, and did not indicate that CDQ or ACE fisheries would be modified by this action. CDQ and ACE crab allocations are not issued as IFQ and there is no corresponding IPQ. Furthermore, CDQ groups that are issued CDQ crab allocations are permitted to engage in post-delivery transfers under section 305(i)(1)(C) of the Magnuson-Stevens Act, and because the ACE crab allocation is issued to only one entity, it cannot be transferred, and there is no need to establish a post-delivery transfer mechanism.
        The proposed definition of a fishing trip would effectively extend from the first harvest in a crab QS crab fishery until the beginning of a delivery of crab from a catcher vessel, or the beginning of offloading or transferring of processed crab from a catcher/processor. This definition would ensure that a vessel operator could not commence fishing for a crab QS fishery on any vessel until all the IFQ accounts of all IFQ permits used onboard that vessel are positive. This provision is intended to discourage harvesters from continuing to debit crab against their IFQ account for numerous fishing trips and run an increasingly negative balance without ensuring that there is adequate available unused IFQ that can be transferred to cover that negative balance. This provision would allow a vessel operator to begin a fishing trip for one crab QS fishery (e.g., snow crab) provided the harvester had unused IFQ in that fishery, even if that harvester had a negative balance in another crab QS fishery (e.g., Bristol Bay red king crab). However, in this example, if a vessel operator harvested (i.e., caught and retained) any Bristol Bay red king crab while fishing for snow crab, the harvester would be in violation of the regulations. This proposed rule would not modify existing regulations that require that IFQ issued to a cooperative can be transferred only between cooperatives, and that IFQ held outside of cooperatives can be transferred only to another person who would hold that IFQ outside of a cooperative.
        The proposed action would minimize the risk of negative IFQ or IPQ accounts by prohibiting an IFQ or IPQ holder from maintaining a negative balance in an IFQ or IPQ account after the end of the crab fishing year for which that IFQ or IPQ account was issued. This prohibition would effectively require that all post-delivery transfers of IFQ or IPQ must be completed by June 30 of each year, the end of the crab fishing year. Overages that are not covered by June 30 of each year could be subject to a penalty or other enforcement action.
        Expected Effects of the Proposed Action

        The RIR describes in detail the predicted effects of the proposed action on harvesters, processors, communities, management and enforcement, consumers, and the nation (see ADDRESSES). Only the effects of the proposed action on harvesters and processors are described here. Overall, the number of overages at the time of landing may increase slightly under the proposed action, but overages subject to penalty should decline.
        Harvesters are likely to realize production efficiency gains under this alternative from allowing greater flexibility in harvesting. Under the status quo, harvesters may be required to wait in port or remain idle on the fishing grounds until a transfer can be processed and a positive IFQ balance is available. Under the proposed action, harvesters could finish their fishing trip and settle the balance when back in port. Some production efficiency gains should be realized by allowing harvesters to more precisely harvest the total IFQ allocation with fewer uncovered overages. Harvesters are also likely to benefit from a reduction in the number of overage violations, which should be reduced through post-delivery transfers. It is unlikely that harvesters will have excessive overages by unreasonable reliance on the provision for post-delivery transfers. This proposed action will most benefit Class A IFQ holders by allowing harvesters to continue operating without idling their operations and incurring additional costs.
        This proposed action would have limited impacts on processors. Processors should have few overages, since overages can be avoided by simply refusing delivery of landings in excess of IPQ holdings. Only when a harvester has an IFQ overage that would be covered by a post-delivery transfer of Class A IFQ might a processor need to obtain IPQ to cover an overage.
        This proposed action would require NMFS to debit IPQ accounts if a processor accepts delivery of Class A IFQ in excess of the amount of Class A IFQ that is matched with that processor. Typically, NMFS has not debited an IPQ account of a processor if an excess of Class A IFQ was delivered because NMFS did not wish to encourage waste by having processors refuse delivery of Class A IFQ, or debit an IPQ account of a processor and potentially cause the processor to exceed his IPQ account due to the actions of a harvester. However, with this proposed action, NMFS would debit the IPQ account of a processor who accepts Class A IFQ in excess of the amount in his IPQ account because that processor could subsequently balance his IPQ account through a post-delivery transfer of IPQ.
        Recordkeeping and Reporting Requirements
        No new recordkeeping or reporting requirements would be imposed by this action. NMFS Restricted Access Management Program (RAM) will continue to oversee share accounts and share use. At the time of landing, RAM will maintain a record of any overage, but instead of reporting overages to NOAA OLE immediately, RAM would defer reporting until June 30, the end of the crab fishing year. RAM would use the same process for post-delivery transfers as currently used under regulations at § 680.41.
        Summary of Regulatory Changes
        This action proposes the following changes to the existing regulatory text at 50 CFR part 680:
        • Add a new definition for the term “fishing trip” at § 680.2;
        • Modify the existing prohibition at § 680.7(a)(5) to clarify that a person may not receive Class A IFQ greater than the amount of unused IPQ that person holds in a crab QS fishery unless they subsequently receive unused IPQ before the end of the crab fishing year to ensure their IPQ balance is not negative;
        • Modify the existing prohibition at § 680.7(e)(2) to clarify that a person cannot begin a fishing trip with a vessel in a crab QS fishery if the total amount of unharvested crab IFQ that is currently held in the IFQ accounts of all crab IFQ permit holders or Crab IFQ Hired Masters onboard that vessel for that crab QS fishery is zero or less; and
        • Add a prohibition at § 680.7(e)(3) to prohibit a person from having a negative balance in an IFQ or IPQ account for a crab QS fishery after the end of the crab fishing year for which that IFQ or IPQ permit was issued.
        Classification
        The Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with Amendment 28, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An IRFA was prepared that describes the economic impact this proposed rule, if adopted, would have on small entities. Copies of the RIR/IRFA prepared for this proposed rule are available from NMFS (see ADDRESSES). The RIR/IRFA prepared for this proposed rule incorporates by reference an extensive RIR/IRFA prepared for Amendments 18 and 19 to the FMP that detailed the impacts of the CR Program on small entities.

        The IRFA for this proposed action describes the action, why this action is being proposed, the objectives and legal basis for the proposed rule, the type and number of small entities to which the proposed rule would apply, and projected reporting, recordkeeping, and other compliance requirements of the proposed rule. It also identifies any overlapping, duplicative, or conflicting federal rules and describes any significant alternatives to the proposed rule that accomplish the stated objectives of the Magnuson-Stevens Act and other applicable statutes, and that would minimize any significant adverse economic impact of the proposed rule on small entities. The description of the proposed action, its purpose, and its legal basis are described in the preamble and are not repeated here.
        This action directly regulates holders of IFQ and IPQ, who could engage in post-delivery transfers to cover overages if the action is adopted. Estimates of the number of small entities holding IFQ are based on estimates of gross revenues. Since many IFQs are held by cooperatives, landings data from the most recent season for which data are available in the crab fisheries (2006-2007) were used to estimate the number of small entities. Based on those data, 44 entities received IFQ allocations. Of these, 13 were large entities and 31 were considered small entities.
        Estimates of small entities holding IPQ are based on the number of employees of IPQ holding entities. Currently, 24 entities receive IPQ allocations. Of these, 11 are estimated to be large entities and 13 are considered small entities.
        Any person wishing to cover an overage would be required to engage in a transfer of IFQ (or IPQ, in the case of a processor). The required reporting and recordkeeping for a post-delivery transfer would be the same as for any other transfer of IFQ (or IPQ).
        All of the directly regulated entities would be expected to benefit from this action relative to the status quo alternative because the proposed action would allow greater flexibility and a period of time in which to reconcile overages. Class A IFQ holders would be expected to benefit the most because Class A IFQ comprises the majority of all IFQ issued in crab QS fisheries, and the proposed action would provide Class A IFQ holders greater flexibility to maximize harvests of their allocations without risking overages. Persons holding IFQ outside of a cooperative would be expected to benefit the least from this action because only a small portion of the total IFQ issued is issued to persons who hold IFQ outside of cooperatives, and they would have a limited pool of persons with whom to negotiate transfers. Among the three alternatives considered, the proposed action would best minimize potential adverse economic impacts on the directly regulated entities. Under the status quo, no post-delivery transfers would be allowed and small entities would continue to be penalized for overages. Alternative 3 would have allowed post-delivery transfers, but with more limitations and restrictions than the preferred alternative. The preferred alternative gives small entities the most flexibility to cover overages.
        Allowing post-delivery transfers should reduce the number of overages that result in forfeiture of catch and other penalties. Persons holding IFQ outside of a cooperative may have a limited ability to make post-delivery transfers because most IFQs are assigned to cooperatives.

          List of Subjects in 50 CFR Part 680
          Alaska, Fisheries.

          Dated: December 8, 2008.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 680 is proposed to be 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 § 680.2, the term “Fishing trip for purposes of § 680.7(e)(2)” is added in alphabetical order to read as follows:

          § 680.2
          Definitions.

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

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

          § 680.7
          Prohibitions.
          (a) * * *
          (5) Receive any crab harvested under a Class A IFQ permit in excess of the total amount of unused IPQ held by the RCR in a crab QS fishery unless that RCR subsequently receives unused IPQ by transfer as described under § 680.41 that is at least equal to the amount of all Class A IFQ received by that RCR in that crab QS fishery before the end of the crab fishing year for which an IPQ permit was issued.
          (e) * * *
          (2) Begin a fishing trip for crab in a crab QS fishery with a vessel if the total amount of unharvested crab IFQ that is currently held in the IFQ accounts of all crab IFQ permit holders or Crab IFQ Hired Masters aboard that vessel in that crab QS fishery is zero or less.
          (3) Have a negative balance in an IFQ or IPQ account for a crab QS fishery after the end of the crab fishing year for which an IFQ or IPQ permit was issued.

      [FR Doc. E8-29494 Filed 12-11-08; 8:45 am]
      BILLING CODE 3510-22-S