Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program, 75661-75664 [E8-29494]
Download as PDF
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Proposed Rules
following NMFS( evaluation under the
Magnuson–Stevens Act procedures.
Public comments on the proposed rule
must be received by the close of the
comment period on Amendments 92
and 82 to be considered in the approval/
disapproval decision on Amendments
92 and 82. All comments received by
the end of the comment period on
Amendments 92/82, whether
specifically directed to the FMP
amendments or the proposed rule, will
be considered in the approval/
disapproval decision on Amendments
92 and 82. Comments received after the
end of the public comment period for
Amendments 92 and 82, even if
received within the comment period for
the proposed rule, will not be
considered in the approval/disapproval
decision on the amendment. To be
considered, comments must be
received(not just postmarked or
otherwise transmitted(by the close of
business on the last day of the comment
period.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 8, 2008.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. E8–29497 Filed 12–11–08; 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
rwilkins on PROD1PC63 with PROPOSALS
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
VerDate Aug<31>2005
16:22 Dec 11, 2008
Jkt 217001
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
https://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 https://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 https://
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
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
75661
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
E:\FR\FM\12DEP1.SGM
12DEP1
75662
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Proposed Rules
rwilkins on PROD1PC63 with PROPOSALS
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
VerDate Aug<31>2005
16:22 Dec 11, 2008
Jkt 217001
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
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
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
E:\FR\FM\12DEP1.SGM
12DEP1
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Proposed Rules
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.
rwilkins on PROD1PC63 with PROPOSALS
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
VerDate Aug<31>2005
16:22 Dec 11, 2008
Jkt 217001
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
PO 00000
Frm 00040
Fmt 4702
Sfmt 4702
75663
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
E:\FR\FM\12DEP1.SGM
12DEP1
75664
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Proposed Rules
rwilkins on PROD1PC63 with PROPOSALS
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
VerDate Aug<31>2005
16:22 Dec 11, 2008
Jkt 217001
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:
PO 00000
Frm 00041
Fmt 4702
Sfmt 4702
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
E:\FR\FM\12DEP1.SGM
12DEP1
Agencies
[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Proposed Rules]
[Pages 75661-75664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29494]
-----------------------------------------------------------------------
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 https://
www.regulations.gov.
Mail: P.O. Box 21668, Juneau, AK 99802.
Fax: 907-586-7557.
Hand delivery to the Federal Building: 709 West 9\th\
Street, Room 420A, Juneau, AK.
All comments received are a part of the public record and will
generally be posted to https://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
https://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
[[Page 75662]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 75663]]
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 Sec. 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
Sec. 680.2;
Modify the existing prohibition at Sec. 680.7(a)(5) to
clarify that a person may not receive Class A IFQ greater than the
amount of unused IPQ that person holds in a crab QS fishery unless they
subsequently receive unused IPQ before the end of the crab fishing year
to ensure their IPQ balance is not negative;
Modify the existing prohibition at Sec. 680.7(e)(2) to
clarify that a person cannot begin a fishing trip with a vessel in a
crab QS fishery if the total amount of unharvested crab IFQ that is
currently held in the IFQ accounts of all crab IFQ permit holders or
Crab IFQ Hired Masters onboard that vessel for that crab QS fishery is
zero or less; and
Add a prohibition at Sec. 680.7(e)(3) to prohibit a
person from having a negative balance in an IFQ or IPQ account for a
crab QS fishery after the end of the crab fishing year for which that
IFQ or IPQ permit was issued.
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
[[Page 75664]]
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 Sec. 680.2, the term ``Fishing trip for purposes of Sec.
680.7(e)(2)'' is added in alphabetical order to read as follows:
Sec. 680.2 Definitions.
* * * * *
Fishing trip for purposes of Sec. 680.7(e)(2) means the period
beginning when a vessel operator commences harvesting crab in a crab QS
fishery and ending when the vessel operator offloads or transfers any
crab in that crab QS fishery whether processed or unprocessed from that
vessel.
* * * * *
3. In Sec. 680.7, paragraphs (a)(5) and (e)(2) are revised, and
paragraph (e)(3) is added to read as follows:
Sec. 680.7 Prohibitions.
* * * * *
(a) * * *
(5) Receive any crab harvested under a Class A IFQ permit in excess
of the total amount of unused IPQ held by the RCR in a crab QS fishery
unless that RCR subsequently receives unused IPQ by transfer as
described under Sec. 680.41 that is at least equal to the amount of
all Class A IFQ received by that RCR in that crab QS fishery before the
end of the crab fishing year for which an IPQ permit was issued.
* * * * *
(e) * * *
(2) Begin a fishing trip for crab in a crab QS fishery with a
vessel if the total amount of unharvested crab IFQ that is currently
held in the IFQ accounts of all crab IFQ permit holders or Crab IFQ
Hired Masters aboard that vessel in that crab QS fishery is zero or
less.
(3) Have a negative balance in an IFQ or IPQ account for a crab QS
fishery after the end of the crab fishing year for which an IFQ or IPQ
permit was issued.
* * * * *
[FR Doc. E8-29494 Filed 12-11-08; 8:45 am]
BILLING CODE 3510-22-S