[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Proposed Rules]
[Pages 75661-75664]
From the Federal Register Online via the Government Publishing 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 http://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 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

[[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