Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Bering Sea and Aleutian Islands Crab Rationalization Program, 52011-52014 [2017-24403]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 216 (Thursday, November 9, 2017)]
[Rules and Regulations]
[Pages 52011-52014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24403]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 679 and 680

[Docket No. 170412391-7999-02]
RIN 0648-BG84


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Management Area; American Fisheries Act; Bering 
Sea and Aleutian Islands Crab Rationalization Program

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement Amendment 48 to the 
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner 
Crabs (Crab FMP) and to revise regulations implementing the American 
Fisheries Act (AFA) Program and the

[[Page 52012]]

Crab Rationalization (CR) Program. This final rule revises the Crab FMP 
and regulations that govern how NMFS determines the amount of limited 
access privileges held and used by groups in the Western Alaska 
Community Development Quota Program (CDQ Program) for the purposes of 
monitoring the excessive share limits under the AFA Program and the CR 
Program. This final rule is necessary to align regulations and the Crab 
FMP to be consistent with an amendment to the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and NMFS' 
current method of monitoring excessive share limits for CDQ groups in 
the AFA Program and the CR Program. This final rule is intended to 
promote the goals and objectives of the Magnuson-Stevens Act, the Crab 
FMP, and other applicable law.

DATES: Effective December 11, 2017.

ADDRESSES: Electronic copies of Amendment 48 to the Crab FMP, the 
Regulatory Impact Review (RIR), and the Categorical Exclusion prepared 
for this action are available from https://www.regulations.gov or from 
the NMFS Alaska Region Web site at https://alaskafisheries.noaa.gov.
    The CR Program Environmental Impact Statement (EIS), RIR, and Final 
Regulatory Flexibility Analysis, as well as the AFA Program EIS and 
RIR, are available from the NMFS Alaska Region Web site at https://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Stephanie Warpinski, 907-586-7228.

SUPPLEMENTARY INFORMATION: This final rule implements Amendment 48 to 
the Crab FMP and regulatory amendments to the CR Program. NMFS 
published a notice of availability for Amendment 48 to the Crab FMP in 
the Federal Register on August 3, 2017 (82 FR 36111). Comment on 
Amendment 48 was invited through October 2, 2017. The Secretary of 
Commerce approved Amendment 48 on October 31, 2017, after accounting 
for information from the public, and determining that Amendment 48 is 
consistent with the Crab FMP, the Magnuson-Stevens Act, and other 
applicable law. NMFS published the proposed rule to implement Amendment 
48 on August 22, 2017 (82 FR 39743). The comment period on the proposed 
rule ended on September 21, 2017. NMFS received 1 comment on the 
proposed rule. A summary of the comment and NMFS' responses is provided 
in the Comments and Responses section of this preamble.
    This final rule modifies regulations at 50 CFR 679.2, 679.7, 680.2, 
and 680.42 that specify how NMFS determines holding and use of limited 
access privileges (LAPs) for the purposes of monitoring excessive share 
limits for CDQ groups under the AFA Program and the CR Program. The 
following section of the preamble provides a brief description of the 
AFA, CR, and CDQ Programs, and the elements of these programs that 
apply to Amendment 48 and this final rule. For a more detailed 
description, please see the preamble of the proposed rule (82 FR 39743; 
August 22, 2017) and Sections 2.6 through 2.8 of the RIR (see 
ADDRESSES).

Excessive Share Limits

    Section 303A(c)(5)(D) of the Magnuson-Stevens Act requires NMFS to 
establish excessive share limits to prevent excessive consolidation of 
harvesting and processing LAPs in order to maintain an appropriate 
distribution of economic and social benefits for fishery participants 
and communities (16 U.S.C. 1853a(c)(5)(D)). Because determination of 
excessive shares must consider the specific circumstances of each 
fishery, the North Pacific Fishery Management Council (Council) and 
NMFS have implemented different excessive share limits in the LAP 
programs in Alaska's fisheries, including the AFA and CR Programs.
    NMFS implemented use caps for the AFA Program in 2002 (67 FR 79692; 
December 30, 2002) and holding and use caps for the CR Program in 2005 
(70 FR 10174; March 2, 2005). Regulations at 50 CFR 679.2, 679.7, 
680.2, and 680.42 prohibit a person from using more than the harvesting 
and processing limits established in the AFA Program and from holding 
and using more than a specific portion of the LAPs allocated under the 
CR Program. Under 50 CFR 679.2, ``person'' includes individuals, 
corporations, partnerships, associations, and other non-individual 
entities. NMFS determines a person's holding and use of a LAP in the 
AFA Program and CR Program by summing (1) the amount directly held and 
used by that person, and (2) the amount held and used by that person 
indirectly through an ownership interest in or control of another 
entity that also holds and uses the LAPs. Ownership attribution refers 
to the method NMFS uses to assess the relationships between different 
entities that participate in LAP programs.
    NMFS uses two ownership attribution methods to determine the 
holding and use of LAPs. These two methods for attributing holding and 
use of a LAP are commonly known as the ``individual and collective 
rule'' and the ``10-percent rule.'' Under the individual and collective 
rule, NMFS attributes holding and use of LAPs by one person 
proportionally to their ownership in or control of another entity that 
holds and uses LAPs. For example, if Company A has a 15 percent 
ownership of Company B that holds LAPs, Company A would be attributed 
15 percent of Company B's holding and use of the LAPs. In contrast, 
under the 10-percent rule, a person is attributed 100 percent of an 
entity's LAPs if that person owns or otherwise controls 10 percent or 
more of that entity. Thus, if Company A owns or controls 10 percent or 
more of Company B, then 100 percent of Company B's holdings and use of 
LAPs are attributed to Company A. When a person owns or controls 10 
percent or more of another entity, the individual and collective rule 
is less restrictive than the 10-percent rule because a person is only 
attributed holding and use of LAPs in proportion to how much that 
person owns or controls of other entities, rather than attributing 100 
percent of the other entity's LAP holdings once the 10-percent 
ownership or control threshold is met. Under a holding and use cap, the 
individual and collective rule would allow a person to hold and use 
more LAPs than if the person was evaluated using the 10-percent rule.

AFA Program Use Caps

    Section 210(e)(1) of the AFA restricts an individual, corporation, 
or other entity to harvesting no more than 17.5 percent of the pollock 
available to be harvested in the directed pollock fishery. Section 
210(e)(2) of the AFA directed the Council to recommend for Secretarial 
approval conservation and management measures to prevent any particular 
individual or entity from processing an excessive share of pollock 
available in the directed pollock fishery. The Council and NMFS set 
this limit at 30 percent of the sum of the directed fishing allowances 
for pollock (67 FR 79692, 79698; December 30, 2002). Every year, these 
limits are published in the annual harvest specifications (see 81 FR 
14773; March 18, 2016 (final 2016-2017 harvest specifications); see 
also 81 FR 52367; August 8, 2016).
    Section 210(e)(3) of the AFA also specified that any entity in 
which 10 percent or more of the interest is owned or controlled by 
another individual or entity shall be considered to be the same entity 
as the other individual or entity for purposes of monitoring the 
harvesting and processing use caps. This section of the AFA directed 
NMFS to use the 10-percent rule to determine the use of AFA Program 
harvesting and processing privileges.

[[Page 52013]]

CR Program Use Caps

    The CR Program was implemented on April 1, 2005 (70 FR 10174; March 
2, 2005). The CR Program established a LAP program for nine crab 
fisheries in the Bering Sea and Aleutian Islands (BSAI) and assigned 
quota share (QS) to persons based on their historic participation in 
one or more of those nine BSAI crab fisheries during a specific period. 
Each year, a person who holds QS may receive an exclusive harvest 
privilege called individual fishing quota (IFQ). NMFS also issued 
processor quota share (PQS) under the CR Program. Each year, PQS yields 
an exclusive privilege to process a portion of the IFQ in each of the 
nine BSAI crab fisheries, called individual processor quota (IPQ). The 
CR Program includes limits on the amount of QS and PQS that a person 
can hold and the amount of IFQ and IPQ that a person can use (see 
Section 2.7 of the RIR for more information).
    For processing privileges, the CR Program limits a person to 
holding no more than 30 percent of the PQS initially issued in the 
fishery, and to using no more than the amount of IPQ resulting from 30 
percent of the PQS initially issued in a given fishery, with a limited 
exemption for persons receiving more than 30 percent of the initially-
issued PQS (50 CFR 680.42(b)). 50 CFR 680.42(b)(3) specifies that NMFS 
uses the 10-percent rule to monitor holding and use caps for PQS and 
IPQ for all CR Program participants as recommended by the Council and 
addressed in the preamble to the proposed rule for the CR Program (69 
FR 63200, 63219, and 63226; October 29, 2004).

Use Caps for CDQ Groups

    The CDQ Program was established by the Council and NMFS in 1992, 
and authorization for the Program was incorporated into the Magnuson-
Stevens Act in 1996. The purpose of the CDQ Program is (1) to provide 
eligible western Alaska villages with the opportunity to participate 
and invest in fisheries in the BSAI, (2) to support economic 
development in western Alaska, (3) to alleviate poverty and provide 
economic and social benefits for residents of western Alaska, and (4) 
to achieve sustainable and diversified local economies in western 
Alaska (16 U.S.C. 1855(i)(1)(A)) (see Section 2.8 of the RIR).
    CDQ groups participate in LAP programs, including the AFA and the 
CR Programs, by purchasing harvesting and processing privileges and 
through ownership of vessels and processors that participate in these 
fisheries. The Magnuson-Stevens Act was amended by the Coast Guard and 
Maritime Transportation Act of 2006 (Pub. L. 109-241; the Coast Guard 
Act) to specify the method that NMFS must use for monitoring excessive 
share limits as they apply to CDQ groups--the proportional or 
``individual and collective'' rule.
    NMFS implemented in practice the method specified in the 2006 
amendment to the Magnuson-Stevens Act for CDQ groups to monitor 
excessive share limits in the AFA Program and the CR Program; however, 
the Crab FMP and the regulations for the AFA Program and the CR Program 
were not revised to be consistent with the 2006 amendment to the 
Magnuson-Stevens Act.

This Final Rule

    This section of the preamble provides a brief description of this 
final rule. For a more detailed description of the rationale for this 
final rule, see the preamble of the proposed rule (82 FR 39743; August 
22, 2017). This final rule revises the AFA Program to specify that NMFS 
uses the individual and collective rule for CDQ groups to attribute 
harvesting and processing privileges of AFA pollock proportionally to 
the CDQ groups' ownership or control of vessels and processors active 
in those fisheries. For example, if a CDQ group owns 15 percent of an 
entity that uses AFA harvesting and processing privileges, the CDQ 
group will be attributed 15 percent of the harvesting or processing 
privileges of that company for purposes of monitoring excessive 
harvesting and processing use caps under the AFA.
    This final rule also implements Amendment 48 to the Crab FMP and 
revises the CR Program to specify that NMFS uses the individual and 
collective rule for CDQ groups to attribute holding and use of PQS and 
IPQ based on the CDQ groups' proportional ownership or control of 
entities that hold and use PQS and IPQ. For example, if a CDQ group 
owns 15 percent of a company that holds or uses PQS or IPQ, the CDQ 
group will be attributed 15 percent of the holding or use of that PQS 
or IPQ.
    NMFS has used the individual and collective rule for CDQ group 
ownership attribution for the AFA Program and the CR Program since 
enactment of the Coast Guard Act; however, the regulations and the Crab 
FMP for the PQS and IPQ holding and use caps have not been updated to 
reflect this change. This final rule updates the regulations, and 
Amendment 48 amends the Crab FMP, to be consistent with the Magnuson-
Stevens Act and NMFS' current method of ownership attribution for CDQ 
groups. This final rule and Amendment 48 to the Crab FMP benefit CDQ 
groups and the public by clarifying the method NMFS uses to attribute 
holding and use of harvesting and processing privileges by CDQ groups 
for purposes of monitoring holding and use caps for the AFA and CR 
Programs.
    This final rule does not alter the regulations for the QS and IFQ 
holding and use caps under the CR Program because current CR Program 
regulations specify that NMFS uses the individual and collective rule 
for all program participants, including CDQ groups, to attribute any 
participants' holding and use of QS and IFQ based on their proportional 
ownership or control of entities that hold and use QS and IFQ.
    This final rule revises 50 CFR 679.2, 679.7(k)(6) and (7), 680.2, 
and 680.42(b) to specify that NMFS uses the individual and collective 
rule for CDQ groups for purposes of ownership attribution in the AFA 
Program and the CR Program. In this final rule, NMFS clarifies the 
amendatory text from the proposed rule to specify that only the 
introductory text to the definition of Affiliation for the purpose of 
defining AFA and the Rockfish Program is revised to specify that CDQ 
groups are not subject to the 10-percent rule for purposes of 
affiliation. This final rule does not modify the remainder of the 
definition that describes the specific components of the 10-percent 
rule for the AFA Program and the Rockfish Program. NMFS did not make 
any changes to the regulatory text from the proposed rule to the final 
rule.

Comments and Responses

    Comment 1: The commenter states that NMFS should consider rolling 
over unused quota or total allowable catches (TACs) to the next year to 
provide additional flexibility for harvesters. The commenter suggests 
that NMFS should prevent too many fish from being harvested, especially 
small fish and breeding females.
    Response: This comment addresses management issues that are beyond 
the scope of Amendment 48 and this regulatory action. This final rule 
does not change the process of allocating quota or establishing TACs 
under the AFA Program or the CR Program, nor will this final rule 
change specific management measures that govern the harvest of pollock 
and crab in the BSAI, such as fishing location, timing, effort, or 
authorized gear types. This final rule revises regulations describing 
the method NMFS uses to determine the

[[Page 52014]]

amount of limited access privileges held and used by CDQ groups for the 
purposes of monitoring the excessive share limits under the AFA Program 
and the CR Program.

Classification

    The Administrator, Alaska Region, NMFS, has determined that 
Amendment 48 to the Crab FMP and this final rule are necessary for the 
conservation and management of the AFA, CR, and CDQ Program fisheries 
and are consistent with the Magnuson-Stevens Act and other applicable 
laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required, and none was prepared, pursuant to 5 U.S.C. 
605.

List of Subjects

50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

50 CFR Part 680

    Alaska, Reporting and recordkeeping requirements.

    Dated: November 6, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
679 and part 680 as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority:  16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447; Pub. L. 111-281.


0
2. In Sec.  679.2, revise the definitions for ``AFA entity'' and the 
introductory text to the definition for ``Affiliation for the purpose 
of defining AFA and the Rockfish Program'' to read as follows:


 679.2   Definitions.

* * * * *
    AFA entity means a group of affiliated individuals, corporations, 
or other business concerns, except for a CDQ group, that harvests or 
processes pollock in the BS directed pollock fishery.
* * * * *
    Affiliation for the purpose of defining AFA and the Rockfish 
Program means a relationship between two or more individuals, 
corporations, or other business concerns, except CDQ groups, in which 
one concern directly or indirectly owns a 10 percent or greater 
interest in another, exerts control over another, or has the power to 
exert control over another; or a third individual, corporation, or 
other business concern directly or indirectly owns a 10 percent or 
greater interest in both, exerts control over both, or has the power to 
exert control over both.
* * * * *

0
3. In Sec.  679.7, revise paragraphs (k)(6) and (7) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (k) * * *
    (6) Excessive harvesting shares. It is unlawful for an AFA entity 
or a CDQ group to harvest, through a fishery cooperative or otherwise, 
an amount of BS pollock that exceeds the 17.5 percent excessive share 
limit specified under Sec.  679.20(a)(5)(i)(A)(6). A CDQ group's 
harvest of BS pollock will be calculated through its proportional 
ownership of individuals, corporations, or other business concerns that 
harvest BS pollock. The owners and operators of the individual vessels 
comprising the AFA entity or CDQ group that harvest BS pollock will be 
held jointly and severally liable for exceeding the excessive 
harvesting share limit.
    (7) Excessive processing shares. It is unlawful for an AFA entity 
or a CDQ group to process an amount of BS pollock that exceeds the 30-
percent excessive share limit specified under Sec.  
679.20(a)(5)(i)(A)(7). The amount of BS pollock processed by a CDQ 
group will be calculated through its proportional ownership of 
individuals, corporations, or other business concerns that process BS 
pollock. The owners and operators of the individual processors 
comprising the AFA entity or CDQ group that process BS pollock will be 
held jointly and severally liable for exceeding the excessive 
processing share limit.
* * * * *

PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF 
ALASKA

0
4. 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.


0
5. In Sec.  680.2, in the definition of ``Affiliation'', revise the 
introductory text and paragraph (1) introductory text to read as 
follows:


Sec.  680.2  Definitions.

* * * * *
    Affiliation means a relationship between two or more entities, 
except for CDQ groups, in which one directly or indirectly owns or 
controls a 10 percent or greater interest in, or otherwise controls, 
another, or a third entity directly or indirectly owns or controls a 10 
percent or greater interest in, or otherwise controls, both. For the 
purpose of this definition, the following terms are further defined:
    (1) Entity. An entity may be an individual, corporation, 
association, partnership, joint-stock company, trust, or any other type 
of legal entity, except for a CDQ group, any receiver, trustee in 
bankruptcy or similar official or liquidating agent, or any organized 
group of persons whether incorporated or not, that holds direct or 
indirect interest in:
* * * * *

0
6. In Sec.  680.42, revise paragraphs (b)(3)(ii) through (iv) to read 
as follows:


Sec.  680.42   Limitations on use of QS, PQS, IFQ, and IPQ.

* * * * *
    (b) * * *
    (3) * * *
    (ii) Is not a CDQ group and directly or indirectly owns a 10 
percent or greater interest in an entity that holds PQS.
    (iii) A person that is not a CDQ group and holds PQS is limited to 
a PQS use cap that is calculated based on the sum of all PQS held by 
that PQS holder and all PQS held by any affiliate of the PQS holder. A 
CDQ group that holds PQS is limited to a PQS use cap that is calculated 
based on the sum of all PQS held, individually or collectively, by that 
CDQ group.
    (iv) A person that is not a CDQ group and holds IPQ is limited to 
an IPQ use cap that is calculated based on the sum of all IPQ held by 
that IPQ holder and all IPQ held by any affiliate of the IPQ holder. A 
CDQ group that holds IPQ is limited to an IPQ use cap that is 
calculated based on the sum of all IPQ held, individually or 
collectively, by that CDQ group.
* * * * *
[FR Doc. 2017-24403 Filed 11-8-17; 8:45 am]
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