[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Proposed Rules]
[Pages 26183-26185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12644]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

RIN 0648-XL60


Fisheries of the Exclusive Economic Zone Off Alaska; Loan Program 
for Crab Quota Share; Amendment 33

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

ACTION: Notice of availability of a proposed amendment to a fishery 
management plan; request for comments.

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SUMMARY: The North Pacific Fishery Management Council (Council) has 
submitted Amendment 33 to the Fishery Management Plan for Bering Sea/
Aleutian Islands King and Tanner Crabs (FMP). If approved, Amendment 33 
would allow NMFS to reduce the amount of fees collected under the Crab 
Rationalization Program to the amount needed to finance the Federal 
loan program for quota share purchase. The amendment would allow NMFS 
to reserve only the amount of fees necessary to support the loan 
program, including no fees if none are needed. This action is necessary 
to ensure that fishery participants do not pay fees for loan program 
financing in excess of the fees needed to support the loan program. 
This FMP amendment would not result in modifications to Federal 
regulations.

DATES: Comments on Amendment 33 must be received on or before July 31, 
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-XL60``, by any one of the following methods:

[[Page 26184]]

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

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442.

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) requires that each regional 
fishery management council submit any fishery management plan or 
fishery management plan amendment that it prepares to NMFS for review 
and approval, disapproval, or partial approval by the Secretary of 
Commerce.
    In 2005, NMFS implemented the Crab Rationalization Program 
(Program) for Bering Sea/Aleutian Islands (BSAI) crab fisheries by 
allocating exclusive fishing and processing privileges (March 25, 2005, 
70 FR 10174). Programs that allocate exclusive fishing privileges are 
commonly known as limited access privilege programs (LAPPs). At its 
most basic, the Program recommended by the Council: (1) allocated long 
term harvest privileges known as quota share (QS) that were based on 
the catch history of vessel owners and captains during a specific 
period, and can yield exclusive annual harvest privileges for QS 
holders, (2) allocated long term processing privileges known as 
processor quota share (PQS) to processors that were based on their 
processing history during a specific time period, and can yield 
exclusive annual processing privileges from PQS holders, and (3) 
included provisions to limit the delivery of much of the catch to 
specific geographic regions and required linkages with communities that 
have been historically dependent on the crab fisheries. The Program 
also includes a suite of other measures limiting the amount of QS and 
PQS a person can hold, specific catch accounting and monitoring 
requirements, mechanisms for transferring QS and PQS, price and 
delivery negotiation standards, economic data collection provisions, 
and other measures.
    The Program recommended by the Council included provisions for a 
fee collection program consistent with the Magnuson-Stevens Act. The 
Magnuson-Stevens Act requires that NMFS collect fees on all LAPPs of 
not greater than 3 percent of the exvessel value of a fishery to 
recover the actual direct management, enforcement, and data collection 
costs in the fishery. NMFS may reimburse itself and other agencies for 
the actual direct costs of Program administration. The Magnuson-Stevens 
Act also allows NMFS to set aside a portion of LAPP cost recovery fees 
to aid in loan financing if such a set aside is recommended by the 
Council. The Council adopted a provision under the Program for a loan 
program to aid QS purchases by entry-level and small boat captains and 
crew who are active in the fishery. The Council recommended that 25 
percent of the fees collected should be set aside to provide for 
financing a loan program. The Council also provided that NMFS should 
collect 133 percent of its actual direct costs to ensure that NMFS 
could fully recover actual management costs and set aside 25 percent of 
the fees collected, provided the sum of all fees collected does not 
exceed 3 percent of the exvessel value of the fishery. The funds 
collected for the crew and captains loan program were intended to 
compensate the government for the costs such as delinquencies, 
defaults, servicing fees, and penalties not covered by payments to 
comply with the Federal Credit Reform Act (FCRA) of 1990 (2 U.S.C. 
661). This amount of funds that may be required is referred to as the 
FCRA loan subsidy cost.
    The fee collection provisions required by the Magnuson-Stevens Act 
and included in the Program were implemented in the March 2, 2005 final 
rule (70 FR 10174). However, NMFS did not include a loan program for QS 
purchase as part of the March 2005 final rule because Congress had not 
provided NMFS with the necessary appropriation authority to grant a 
specific amount of Federal loans, or provided for an appropriation to 
subsidize any anticipated defaults or costs for administering a loan 
program that may not be recovered by the interest payments on the 
loans. The Magnuson-Stevens Act requires NMFS to administer loan 
programs under the credit authority of Title XI of the Merchant Marine 
Act, 1936.
    The FCRA requires that NMFS not issue loans unless specific 
authority is granted by Congress. In addition, the FCRA requires any 
new loan obligation with estimated net loan losses (FCRA subsidy costs) 
be appropriated at the time Congress authorizes the amount of the loans 
that can be provided (i.e., the annual loan ceiling). Under the 
Magnuson-Stevens Act, a portion of the LAPP cost recovery fees, up to 
25 percent of the amount collected and set aside for a loan program, 
could be used to provide the FCRA subsidy costs for the loan program. 
Alternatively, it may not be necessary to set aside any appropriation 
for the FCRA costs could be met through a direct appropriation, or may 
not be necessary if the net loan losses (i.e., the FCRA subsidy costs) 
are zero or negative. NMFS withheld the development of a loan program 
until Congress granted NMFS the necessary authority to provide for 
loans through the Consolidated Appropriations Act of 2008 (Pub. L. 110-
161), and the appropriate FCRA loan subsidy cost could be determined.
    Beginning in June 2006, NMFS began collecting fees in accordance 
with the Magnuson-Stevens Act and set aside 25 percent of the fees 
collected for purposes of a loan program as required by the Program. 
NMFS had presumed that a portion of the fees that had been set aside 
for the loan program would be used to provide for any required loan 
subsidy as required by FCRA once NMFS received the necessary authority 
to grant the loans.
    During the process of developing the definitions of the loan 
program terms, it became clear to NMFS Financial Services Division 
(FSD) that because of the anticipated low default rate of loans, it is 
highly likely that the amount need to be set aside to provide for the 
FCRA loan subsidy coverage will not be the full 25 percent required by 
the program. NMFS FSD bases this assessment on the fact that under the 
existing halibut and sablefish IFQ program, the default rate on loans 
has been less than the revenue received from interest on the loans, and 
fees collected have not been required for loan program financing. NMFS 
FSD has indicated that it does not anticipate using fees collected 
under the Program to provide for loan financing because it anticipates 
a repayment history under the Program similar to that of the halibut 
and sablefish IFQ fishery with a zero or negative FCRA subsidy cost. If 
the loan program does not have a

[[Page 26185]]

subsidy cost, fees would not need to be set aside for that purpose.
    However, the FMP requires that 133 percent of the actual direct 
costs must be collected with 25 percent of the fees collected set aside 
for loan subsidization. Given recent trends of increasing crab total 
allowable catches (TACs) and exvessel values, it is possible that 
direct management costs could represent less than 3 percent of the 
exvessel value of the rationalized crab fisheries. In that case, NMFS 
would collect more than 100 percent of the management costs to fund the 
mandatory 25 percent set-aside for the loan program subsidization, up 
to 133 percent of the actual management costs, as long as the total fee 
is under 3 percent of the exvessel value in the rationalized crab 
fisheries. In April 2008, NMFS recommended that the Council amend its 
FMP to avoid collecting LAPP cost recovery fees beyond the amount 
required to reimburse agency costs and provide for a loan program.
    To resolve this issue, in June 2008, the Council recommended that 
Amendment 33 be prepared and submitted to the Secretary for approval. 
The proposed FMP amendment authorizes NMFS to collect fees up to the 
amount needed to support the projected FCRA loan subsidy cost. If NMFS 
determines that no additional funds would be required to offset the 
FCRA loan subsidy, it would be authorized not to collect fees for the 
subsidy. The FMP text would be amended to authorize NMFS to collect a 
variable amount of ``up to'' 133 percent of the actual direct cost of 
management for loan subsidies and ``up to'' 25 percent of the loan 
funds collected for loans, to offset the cost of subsidies for these 
loans. This variable amount authority in the FMP will replace the fixed 
amount requirement. This change would ensure that NMFS has the 
necessary flexibility to collect fees commensurate with the subsidy 
costs of the loan program. Amendment 33 would not effect the funds 
appropriated by Congress to initiate and support crew and captains 
loans under the Program, only the amount of fees collected to pay for 
the estimated subsidy on those loans.
    Approval of Amendment 33 would not require amendment of regulations 
at 50 CFR 680.2 that implement the general fee collection provisions of 
the program.
    The Council also considered and rejected two additional 
alternatives for addressing the assignment of fees to low-interest 
loans for crew and captains in the Program. One alternative was to make 
no amendment to the low-interest loan program in the FMP. That 
alternative was rejected by the Council because excess fees would be 
collected from the participants in the Program and that would not 
assist in meeting the goals of the low-interest loan program. The 
second alternative was to remove all references in the FMP that require 
a portion of the fees collected to be dedicated to a loan program set-
aside. If no fees are set aside to offset potential FCRA subsidy costs, 
NMFS FSD would have to meet any FCRA subsidy cost requirements by 
receiving a direct appropriation from Congress. This alternative was 
rejected because it would effectively preclude NMFS from collecting 
fees to provide any necessary FCRA subsidy cost, if they were required.
    Public comments are being solicited on Amendment 33. Comments 
received by the closing date will be considered in the approval/
disapproval decision on the amendment. To be considered, written 
comments must be received by NMFS, not just postmarked or otherwise 
transmitted, by the close of business on the last day of the comment 
period.

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

    Dated: May 26, 2009.
Kristen C. Koch,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. E9-12644 Filed 5-29-09; 8:45 am]
BILLING CODE 3510-22-S