[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Rules and Regulations]
[Pages 24511-24518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09678]
[[Page 24511]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 679 and 680
[Docket No. 151020969-6335-02]
RIN 0648-BF46
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: Final rule.
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SUMMARY: NMFS issues a rule that modifies regulations governing the
Crab Rationalization (CR) Program. This final rule is comprised of
three actions. Under the first action, this final rule modifies
regulations to create an exemption for participants in the Western
Aleutian Islands golden king crab (WAG) fishery from the prohibition
against resuming fishing before all CR Program crab have been fully
offloaded from a vessel. The first action is intended to allow
participants in the WAG fishery to offload live crab to remote ports
near the fishing grounds to supply live crab markets. Under the second
action, this final rule amends CR Program regulations to clarify
current document submission requirements for persons applying to
receive captain and crew crab quota share, called C shares, by
transfer. Under the third action, this final rule amends License
Limitation Program (LLP) regulations to remove the requirement for
endorsements on crab LLP licenses for specific crab fisheries in the
Bering Sea and Aleutian Islands (BSAI) that are no longer managed under
the LLP. This final rule is intended to promote the goals and
objectives of the Magnuson-Stevens Fishery Conservation and Management
Act, the Fishery Management Plan for Bering Sea/Aleutian Islands King
and Tanner Crabs (Crab FMP), and other applicable laws.
DATES: Effective April 26, 2016.
ADDRESSES: Electronic copies of the Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (RIR/IRFA), the final Regulatory Impact
Review (RIR), and the Categorical Exclusion prepared for this action
are available from http://www.regulations.gov or from the NMFS Alaska
Region Web site at http://alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule may be submitted by mail to NMFS Alaska Region, P.O. Box 21668,
Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in
person at NMFS Alaska Region, 709 West 9th Street, Room 420A, Juneau,
AK; by email to [email protected]; or by fax to 202-395-5806.
FOR FURTHER INFORMATION CONTACT: Keeley Kent, 907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS published a proposed rule to modify
regulations governing the Crab Rationalization (CR) Program on February
23, 2016 (81 FR 8886). The comment period on the proposed rule ended on
March 24, 2016. NMFS received four comment letters on the proposed rule
that contained nine unique comments.
Background
This section includes a brief description of the CR Program and the
CR Program regulations that would be modified by this final rule.
Additional background information and detail is provided in the
proposed rule and in the final rule to implement the CR Program (70 FR
10174, March 2, 2005).
The CR Program is a catch share program for nine BSAI crab
fisheries that allocates those resources among harvesters, processors,
and coastal communities. Under the CR Program, NMFS originally issued
QS to eligible harvesters as determined by eligibility criteria and
participation in the CR Program fisheries during qualifying years. A
harvester's allocation of QS for a fishery was based on the landings
made by his or her vessel in that fishery. Specifically, each
allocation was the harvester's average annual portion of the total
qualified catch in a crab fishery during a specific qualifying period.
NMFS issued four types of QS: Catcher vessel owner (CVO) QS was
assigned to holders of LLP licenses who delivered their catch onshore
or to stationary floating crab processors; catcher/processor vessel
owner (CPO) QS was assigned to LLP holders that harvested and processed
their catch at sea; captains and crew onboard catcher/processor vessels
were issued catcher/processor crew (CPC) QS; and captains and crew
onboard catcher vessels were issued catcher vessel crew (CVC) QS. CVC
and CPC QS are also known as ``crew shares'' or ``C shares.'' Each
year, a person who holds QS may receive individual fishing quota (IFQ),
which is an exclusive harvest privilege for a portion of the annual
total allowable catch (TAC). Under the CR Program, QS holders can form
cooperatives to pool the harvest of the IFQ on fewer vessels to
minimize operational costs and to provide additional flexibility in
harvesting operations.
NMFS also issued processor quota share (PQS) under the CR Program.
Each year, PQS yields an exclusive privilege to receive (for
processing) a portion of the IFQ in each of the nine CR Program crab
fisheries. This annual exclusive processing privilege is called
individual processing quota (IPQ). A specified portion of IFQ derived
from CVO QS must be matched and delivered to a processor with IPQ.
This final rule includes three actions: The first action creates an
exemption for the WAG fishery from the CR Program prohibition against a
vessel resuming fishing before the vessel has offloaded all CR Program
crab from the vessel; the second action amends the CR Program
regulations to clarify document submission requirements for individuals
submitting an application to receive C shares by transfer; and the
third action amends LLP regulations to remove BSAI crab species that
are no longer managed under the LLP.
WAG Fishery
This section provides a brief description of the WAG fishery. For a
more detailed description, please see Section 3.5 of the final RIR (see
ADDRESSES) and the preamble of the proposed rule (81 FR 8886, February
23, 2016) for this action.
The WAG fishery is a relatively small but lengthy fishery
prosecuted in extremely remote waters in the western Aleutian Islands.
Historically, the community of Adak, Alaska, has been an active
processing port for the WAG fishery. The WAG fishery has a relatively
small annual total allowable catch compared to other BSAI crab
fisheries, such as the Bristol Bay red king crab or snow crab
fisheries. The total allowable catch for the 2015/2016 crab fishing
year in the WAG fishery is 2.98 million pounds. The average total tank
capacity of the catcher vessels that participate in the WAG fishery is
between 120,000 and 150,000 pounds (see Section 3.5.3 of the final
RIR). The WAG quota share (QS) holders have formed a harvest
cooperative to ensure the efficient harvest of this remote fishery. In
recent years the fleet has included two to three catcher vessels and a
single catcher/processor. Section 3.5.1 of the final RIR provides
additional detail on historical and recent participation in the WAG
fishery.
[[Page 24512]]
Full Landing (Offload) Requirement
Prior to this final rule, the CR Program regulations prohibited a
vessel from resuming fishing for CR Program crab or taking CR Program
crab on board a vessel once a landing (offload) had commenced and until
all CR Program crab were offloaded (see Sec. 680.7(b)(3)). Under this
regulation, a catcher vessel could offload portions of CR Program crab
at multiple processors, but the vessel was prohibited from fishing for
CR Program crab between these offloads.
NMFS implemented the prohibition against resuming fishing after a
CR Program landing had commenced (hereafter called the full offload
requirement) to facilitate enforcement of CR Program requirements for
catch monitoring and full catch accounting. NMFS intended that this
prohibition would prevent persons from, for example, discarding
deadloss CR crab at sea prior to debiting this crab from the QS
holder's IFQ account and subsequently high grading with CR crab
harvested after the partial offload. The prohibition was intended to
ensure that all fishery removals are monitored and reported in the CR
Program catch accounting system. NMFS and ADF&G estimate total fishery
removals through monitoring measures that include collection of data on
landed catch weight and crab species composition, bycatch, and
deadloss. See the final rule to implement the CR Program for a
description of the monitoring and catch accounting provisions in the
BSAI crab fisheries (70 FR 10174, March 2, 2005).
Catch Monitoring
The proposed rule and Section 3.6.2 of the final RIR describe that
under the Crab FMP, the Alaska Department of Fish and Game (ADF&G) has
implemented specific monitoring requirements in the WAG fishery. ADF&G
requires catcher/processors in the WAG fishery to carry an observer on
board the vessel for 100 percent of the vessel's trips. Catcher vessels
in the WAG fishery are required to carry an observer on board for the
harvest of at least 50 percent of their total harvest weight for each
3-month period of the overall 9-month season. The portion of actual
observed harvest for catcher vessels in the WAG fishery has ranged from
57 percent to 70 percent annually. Vessel operators in the BSAI crab
fisheries must complete a daily fishing log, which is issued by NMFS.
Data from the daily fishing log are used, along with observer data, to
verify landings and to ensure accurate accounting for all fishery
removals.
Need for This Final Rule
The proposed rule preamble provides a description of the need for
this final rule, which is briefly summarized here. In 2014, the
processing facility in Adak began taking deliveries of WAG from catcher
vessels to supply the live crab market. The crab are offloaded from the
vessel and held at the processing facility until packed for transport
on a commercial airline flight from Adak for delivery to domestic and
international markets. The amount of crab offloaded at Adak and
delivered to the live market is limited by the amount of aircraft hold
space that is available to ship crab on bi-weekly flights from Adak.
Aircraft capacity is approximately 8,000 to 14,000 pounds of crab per
flight, depending on the type of aircraft. Vessels operating in the WAG
fishery make crab deliveries opportunistically to the processing
facility when live markets are available. Harvesters receive a higher
price per pound for the live market than for crab delivered and
processed to supply the traditional market for cooked and frozen crab
sections (see Sections 3.5.4 and 3.5.5.1 of the final RIR for more
information about deliveries to the live crab market from Adak).
The processing facility in Adak is currently able to receive only
limited amounts of deliveries of crab for the live market,
approximately 400,000 pounds for the 2015/2016 crab fishing year. As
described in the proposed rule and Section 3.5.5 of the final RIR, the
processing facility in Adak has encountered a number of operational
challenges since it was established in 1999 and is not currently able
to receive and process a full offload of crab, which can be up to
150,000 pounds in the WAG fishery. To comply with the full offload
requirement, catcher vessels delivering crab for the live market were
required to make partial landings at the Adak processing facility and
transit several hundred miles from the fishing grounds to Dutch Harbor
or Akutan to deliver the remaining crab on board the vessel to a
processor that can accept a larger vessel load of crab from the
vessels.
In February 2015, the Council received requests from
representatives for WAG fishery participants and representatives of the
community of Adak to exempt the WAG fishery from the CR Program
prohibition against a person resuming fishing before all crab have been
offloaded from a vessel. The Council recommended a regulatory amendment
to exempt participants in the WAG fishery from the prohibition at Sec.
680.7(b)(3) against a person resuming fishing before all CR Program
crab have been offloaded from the vessel. The Council recommended this
regulatory amendment to reduce inefficiencies and costs associated with
requiring crab harvesting vessels to travel significant distances to
land a partial load of WAG. This rule allows vessels harvesting WAG to
make partial landings for delivery to the live market and continue
harvesting crab before fully offloading at a processor that can receive
a larger vessel load of crab.
This Final Rule
Action 1: Exempt the WAG Fishery From Full Offload Requirements
Action 1 creates an exemption for the WAG fishery from the
prohibition at Sec. 680.7(b)(3) that precludes a person from resuming
fishing before all crab has been offloaded from a vessel. This rule
will not alter current landing, reporting, and enforcement requirements
in CR Program regulations.
This rule relieves a restriction on fishing activity in the WAG
fishery and could increase operational efficiencies and revenues for
participants in the WAG fishery. The Council determined that this rule
is necessary for the WAG fishery due to the remote and economically
challenging characteristics of the fishery as well as the benefits to
harvesters, processors located in the western Aleutians, and any
communities that develop a live market opportunity.
The proposed rule and Sections 3.7.1 and 3.7.2 of the final RIR
describe how this rule will support the WAG fishery harvesters,
processors, and communities that seek to diversify into the live crab
market. The vessels currently participating in the WAG fishery could
receive additional WAG fishery revenues due to the increased price they
receive for crab in the live market. In addition, these WAG fishery
harvesters could potentially reduce operating costs and increase
efficiency by making small offloads of WAG crab to the western Aleutian
Islands and resuming fishing to harvest a full vessel load of crab
before transiting to offload the crab at a processor that can process
all of the vessel's crab. This may result in reduced fuel costs and
time spent returning to the fishing grounds.
The Council determined, and NMFS agrees, that this rule is not
likely to have negative impacts on the management of the WAG fishery or
on the catch monitoring and accounting requirements established by the
CR Program. The Council considered the impacts of this rule on Federal
management of the WAG fishery.
[[Page 24513]]
Section 3.7.4 of the final RIR describes that this rule will not change
the current CR Program landing and reporting requirements, or catch
accounting system. All retained crab catch will continue to be weighed,
reported, and debited from the appropriate IFQ account under which the
crab was harvested, and from the IPQ account under which the catch was
processed.
The proposed rule and Section 3.7.5 of the final RIR describe the
impacts of this rule on the State of Alaska (State) management of the
WAG fishery. The Crab FMP establishes a State/Federal cooperative
management regime that defers crab management to the State with Federal
oversight. State regulations are subject to the provisions of the Crab
FMP, including its goals and objectives, the Magnuson-Stevens Act
national standards, and other applicable Federal laws. NMFS expects
that ADF&G will make minor modifications to its sampling and observer
coverage protocols for WAG fishery vessels that deliver crab to Adak
for supply to the live market. NMFS anticipates that ADF&G will
continue to coordinate with vessels in the WAG fishery to ensure that
accurate biological data and catch accounting needs are met with
minimal impacts on State management of the WAG fishery consistent with
requirements of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), the Crab FMP, and ADF&G
regulations.
Action 2: Clarify Document Submission Requirements for Transfers of C
Shares
Action 2 corrects regulations governing the approval criteria for
an application to receive C shares by transfer. Under the CR Program,
individuals must meet specific eligibility requirements to receive C
shares by transfer. Amendment 31 to the Crab FMP modified several
regulations governing the acquisition, use, and retention of C shares
under the CR Program (80 FR 15891, March 26, 2015).
The eligibility requirements to receive C shares by transfer are
located at Sec. 680.41(c)(1)(vii). An applicant must meet initial
eligibility criteria, which include having U.S. citizenship, at least
150 days of sea time in a U.S. commercial fishery, and recent
participation as crew in at least one delivery of crab in the past
year. In addition, Sec. 680.41(c)(1)(vii) specifies that until May 1,
2019, in lieu of participation as crew in one of the CR Program
fisheries in the 365 days prior to application submission, an
individual may meet the crew participation requirement to receive C
shares by transfer if that person (1) received an initial allocation of
C shares (CVC or CPC QS), or (2) participated as crew in at least one
delivery of crab in a CR Program crab fishery in any 3 of the 5 crab
fishing years starting on July 1, 2000, through June 30, 2005.
The approval criteria for NMFS to approve an application to receive
C shares by transfer are located at Sec. 680.41(i). The regulations
state that NMFS will not approve a transfer application unless it has
determined that the applicant has met all approval criteria.
The regulations implementing the CR Program in 2005 included
approval criteria for an individual to demonstrate to NMFS that he or
she meets the eligibility requirements at Sec. 680.41(c)(1)(vii) at
the time of transfer. These approval criteria were inadvertently
removed by amendatory language in the final rule that implemented
regulations to provide harvesting cooperatives, crab processing quota
shareholders, and Western Alaska Community Development Quota groups
with the option to make web-based transfers (74 FR 51515, October 7,
2009). These approval criteria clarify for applicants that they must
meet the eligibility requirements at Sec. 680.41(c)(1)(vii) at the
time of transfer, specifically that they must meet the recent
participation requirements within the prior 365 days for their
application for transfer to be approved. This final rule adds these
approval criteria at Sec. 680.41(i)(11) to ensure that the regulations
are consistent with the original intent of the CR Program.
This final rule also adds regulations specifying that acceptable
evidence for demonstrating required participation criteria specified at
Sec. 680.41(c)(1)(vii) is limited to an ADF&G fish ticket signed by
the applicant or an affidavit from the vessel owner attesting to the
applicant's fishery participation.
Action 3: Removing Certain Crab Species From LLP Regulations
Action 3 amends LLP regulations for consistency with the Crab FMP
to avoid public confusion about the regulatory requirements that apply
to certain crab stocks. This rule modifies the LLP regulations at Sec.
679.4(k)(1)(ii) to remove the following five crab species: Aleutian
Islands C. bairdi crab, Eastern Aleutian Islands red king crab; scarlet
or deep sea king crab; grooved Tanner crab; and triangle Tanner crab.
These stocks were removed from the Crab FMP in 2008 through Amendment
24 and are no longer subject to Federal management (73 FR 33925, June
16, 2008). This final rule adds Aleutian Islands C. bairdi crab to the
list of stocks that NMFS proposed to remove from the LLP regulations.
This change is described briefly in this section and in detail in the
Change from the Proposed Rule section.
The preamble to the proposed rule provided a description of the LLP
for crab stocks and Amendment 24 to the Crab FMP. In summary, the LLP
limits the number, size, and specific operation of vessels deployed in
BSAI crab fisheries managed under the Crab FMP and established several
area/species endorsements for crab LLP licenses.
The CR Program removed BSAI crab fisheries that are managed under
the CR Program from the LLP. The fisheries not included in the CR
Program remained under the Crab FMP and under the governance of the
LLP. Fishermen participating in those fisheries are required to have a
crab LLP license with the appropriate area/species endorsement on the
vessel. Although the Crab FMP establishes a State/Federal cooperative
management regime that delegates crab management to the State with
Federal oversight, NMFS manages Crab FMP stocks subject to LLP
requirements.
Amendment 24 to the Crab FMP was approved in 2008. Amendment 24
removed 12 BSAI crab stocks not in the CR Program from the Crab FMP and
deferred management to the State for these fisheries (73 FR 33925, June
16, 2008). Upon removal of these species from the Crab FMP, NMFS no
longer had authority to manage the following species under the LLP
program: Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red
king crab, scarlet or deep sea king crab, grooved Tanner crab, and
triangle Tanner crab. The State currently manages these fisheries under
State regulations.
Amendment 24 to the Crab FMP did not require implementing
regulations. As a result, Aleutian Islands C. bairdi crab, Eastern
Aleutian Islands red king crab, scarlet or deep sea king crab, grooved
Tanner crab, and triangle Tanner crab were not removed from LLP
regulations when Amendment 24 was implemented. In order to align LLP
regulations with the Crab FMP and avoid confusion about regulatory
requirements, this final rule modifies the LLP regulations at Sec.
679.4(k)(1)(ii) to eliminate these species from the LLP regulations.
This final rule does not change current management of these crab
fisheries.
As described in the preamble to the proposed rule, NMFS will modify
and reissue some crab LLP licenses to implement this final rule. Prior
to this final rule, the LLP regulations specified that crab LLP
licenses may have up to four area/species endorsements:
[[Page 24514]]
Aleutian Islands C. opilio/C. bairdi crab;
Eastern Aleutian Islands red king crab;
Bering Sea Minor Species (includes Bering Sea golden king
crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle
Tanner crab); and
Norton Sound red and blue king crab.
To implement this final rule, NMFS will modify LLP licenses to
remove the Aleutian Islands C. bairdi crab endorsement from the
combined Aleutian Islands C. opilio and C. bairdi area/species
endorsements for LLP licenses. Current LLP license records indicate
there are 274 LLP licenses with the Aleutian Islands C. opilio and C.
bairdi area/species endorsement. The endorsement will be modified so
that it only includes Aleutian Islands C. opilio, and the 274 licenses
will be reissued, reflecting the change.
To implement this final rule, NMFS will modify LLP licenses to
remove the Eastern Aleutian Islands red king crab endorsement from LLP
licenses. Current LLP license records indicate that there are 30 LLP
licenses with this endorsement.
NMFS does not need to reissue LLP licenses with a Bering Sea Minor
Species endorsement to implement this final rule. Even though scarlet
or deep sea king crab, grooved Tanner crab, and triangle Tanner crab
fisheries are no longer subject to Federal management, the Bering Sea
golden king crab fishery is still included in the Crab FMP and is
subject to Federal management under the LLP. Therefore an LLP license
with a Bering Sea Minor Species endorsement is still required for
participation in this fishery. Because of this, NMFS does not need to
remove the endorsement as a whole. The LLP regulations determine the
specific area/species endorsements to which the Bering Sea Minor
Species endorsement applies, so NMFS has determined that it can
implement this change by amending the LLP regulations, rather than
reissuing the licenses carrying this endorsement. Current LLP license
records indicate that there are 287 LLP licenses with this endorsement.
Many LLP license holders hold more than one area/species
endorsement on their LLP license, therefore NMFS will only need to
reissue 274 LLP licenses due to the overlap in LLP license holders with
the Aleutian Islands C. opilio and C. bairdi crab endorsement and the
Eastern Aleutian Islands red king crab endorsement. NMFS will incur
minor administrative costs to reissue LLP licenses to remove the
Aleutian Islands C. bairdi crab and Eastern Aleutian Islands red king
endorsement. This action will not change current management of the
Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king
crab, Bering Sea golden king crab, scarlet or deep sea king crab,
grooved Tanner crab, and triangle Tanner crab fisheries.
Comments and Responses
NMFS received four comment letters from the public that contained
nine unique substantive comments during the public comment period for
the proposed rule to implement these three actions. NMFS' responses to
these comments are presented below.
Comment 1: All four commenters expressed support for Action 1 in
this final rule, to create an exemption for the WAG fishery from the CR
Program prohibition against a vessel resuming fishing before the vessel
has offloaded all CR Program crab from the vessel.
Response: NMFS acknowledges these comments.
Comment 2: One commenter requested that NMFS implement this final
rule as soon as possible so that it is effective before the end of the
current WAG fishing season on April 30, 2016.
Response: NMFS acknowledges this comment. This final rule relieves
a restriction on fishing activity in the WAG fishery and could increase
operational efficiencies and revenues for participants in the WAG
fishery. Therefore, for reasons discussed in the Classification
section, the NMFS Assistant Administrator has waived the 30-day delay
in effectiveness of this final rule to allow WAG participants to
benefit from this exemption before the end of the 2015/2016 WAG fishing
season. This will allow WAG participants to make partial offloads and
then resume fishing on the day that this final rule is published in the
Federal Register.
Comment 3: The proposed revisions to Sec. 679.4(k)(1)(ii)(A) do
not appear to remove the LLP requirement for Aleutian Islands C. bairdi
crab. Aleutian Islands C. bairdi crab was removed from the Crab FMP
under Amendment 24. Therefore, the final rule should remove this stock
from the LLP regulations along with the proposed stocks.
Response: NMFS agrees. NMFS inadvertently omitted Aleutian Islands
C. bairdi crab from the list of crab stocks to be removed from the LLP
regulations in the proposed rule. As described in the Change from the
Proposed Rule section, this final rule removes Aleutian Islands C.
bairdi crab from the list of crab stocks to be removed from the LLP
regulations as recommended by the commenter.
Comment 4: The proposed rule incorrectly stated that observer or
dockside sampling data are used to debit IFQ and IPQ accounts in the CR
Program online catch accounting system. The RIR/IRFA correctly states
that crab landings data are used to debit IFQ and IPQ accounts under
the CR Program.
Response: NMFS agrees. While the preamble to the proposed rule
contained an incorrect statement regarding the type of data used to
debit IFQ and IPQ accounts, the RIR/IRFA correctly stated that
eLandings is used for catch accounting purposes to debit crab landings
from IFQ and IPQ accounts. The incorrect statement in the preamble to
the proposed rule did not change the issues involved in establishing
this final rule to exempt the WAG fishery from full offload
requirements. No changes are necessary to address this comment in the
final rule.
Comment 5: The proposed rule incorrectly states that ADF&G requires
operators in the BSAI crab fisheries to complete a daily fishing log.
NMFS regulations at Sec. 680.5(a) and Sec. 679.5(c)(1) require
operators to complete the daily fishing log.
Response: NMFS agrees that the requirement to complete a daily
fishing log is a NMFS requirement, rather than an ADF&G requirement.
The RIR/IRFA correctly stated that NMFS regulations at 680.5(a) and
679.5(c)(1) require operators to complete the daily fishing log. No
changes are necessary to address the comment in this final rule.
Comment 6: NMFS should consider expanding the exemption for the WAG
fishery from the full offload delivery requirements to all CR Program
fisheries. Participants in other CR Program fisheries have an interest
in exploring the possibilities for partial offloads to supply live crab
markets for other CR Program fisheries from other communities.
Expanding the exemption could allow other participants to take
advantage of the efficiency created by the exemption and the
opportunity to access markets with higher prices for crab.
Response: As noted in the proposed rule and the RIR/IRFA and the
final RIR, during the Council's initial discussion of the need for this
action, it also considered extending the exemption from the prohibition
against resuming fishing before all CR Program crab have been landed to
all CR Program fisheries. However, the Council rejected this approach
because it was too broad for the stated objectives, which were specific
to the WAG fishery. Expanding the exemption to CR Program fisheries is
outside the scope of this final rule.
[[Page 24515]]
Comment 7: The commenter expressed support for the addition of
approval criteria at Sec. 680.41(i)(11) under Action 2 of the proposed
rule to correct the previous error in the amendatory language of the
final rule that implemented regulations to provide entities with the
option to make Web-based transfers.
Response: NMFS acknowledges this comment.
Comment 8: The commenter noted ongoing concerns with the
implementation of C share provisions under the CR Program, including
the time lag between the Council final action on Amendment 31 to the
Crab FMP (April 2008) and the publication of the final rule
implementing Amendment 31 (March 26, 2015, 80 FR 15891).
Response: NMFS acknowledges this comment but notes that Action 2 of
this final rule only corrects a previous amendatory error. Action 2 of
this final rule does not modify the existing C share provisions under
the CR Program. Comments about the implementation of Amendment 31 to
the Crab FMP are outside of the scope of this final rule.
Comment 9: NMFS should carefully review its regulations prior to
the implementation of provisions under Amendment 31 to the Crab FMP
that can revoke C shares so that quota shareholders and prospective
shareholders have clarity and certainty regarding their eligibility and
QS holdings.
Response: NMFS acknowledges this comment but notes that the
implementation of Amendment 31 is outside the scope of this final rule.
Change From the Proposed Rule
This final rule includes one change to the proposed regulatory
text. This final rule modifies the regulatory text at Sec.
679.4(k)(1)(ii) to eliminate Aleutian Islands C. bairdi crab from LLP
regulations, in addition to removing the proposed four crab stocks:
Eastern Aleutian Islands red king crab; scarlet or deep sea king crab;
grooved Tanner crab; and triangle Tanner crab.
NMFS has determined that this change to the final rule is necessary
to remove the Aleutian Islands C. bairdi crab stock from the LLP
regulations in addition to the four species included in the proposed
rule because Aleutian Islands C. bairdi crab was also eliminated from
the Crab FMP with Amendment 24. As described in the response to comment
3 in the Comments and Responses section, NMFS did not propose this
regulatory change. This change corrects that error. This change from
the proposed to final rule is necessary to ensure the regulations are
consistent with the Crab FMP.
Classification
Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this rule is consistent
with the Crab FMP, other provisions of the Magnuson-Stevens Act, and
other applicable law.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
Administrative Procedure Act
The NMFS Assistant Administrator finds good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in effectiveness for the provisions
in this final rule. A delay in the effective date of this rule would
unnecessarily delay regulatory revisions that would provide an
exemption from the prohibition against resuming fishing before all CR
Program crab have been fully offloaded from a vessel. The revised
regulations will allow participants in the WAG fishery to conduct
partial offloads and resume fishing before all CR Program crab have
been fully offloaded. A delay in effectiveness of the revised
regulations would prevent participants from conducting partial offloads
and resuming fishing before the close of the 2015/2016 WAG fishing
season on April 30, 2016, thus undermining the purpose of the rule.
As described in the preamble to the proposed and final rule, NMFS
implemented the prohibition against resuming fishing after a CR Program
landing had commenced to facilitate enforcement of CR Program
requirements for catch monitoring and full catch accounting. NMFS
intended that this prohibition would prevent persons from discarding
deadloss CR crab at sea prior to debiting this crab from the QS
holder's IFQ account and subsequently high grading with CR crab
harvested after the partial offload. The prohibition was intended to
ensure that all fishery removals are monitored and reported in the CR
Program catch accounting system.
The Assistant Administrator has determined that this prohibition is
unnecessary for the WAG fishery because participants in this fishery
are unlikely to discard and subsequently high grade Western Aleutian
golden king crab. First, crew harvesting Western Aleutian golden king
crab only retain healthy crab of legal size and discard all dead,
damaged, or diseased crab during the sorting process at the harvesting
grounds. Thus, there is little incentive to discard and high grade
after landing has commenced. Second, at-sea discards of unreported crab
as a result of quota overages are unlikely because the CR Program
cooperative structure, online quota transfers, and post-delivery quota
transfers gives CR Program participants several options to obtain
additional Individual Fishing Quota. Finally, fifty to seventy percent
of the WAG fishery is monitored by observers. The presence of observers
on board vessels reduces the likelihood of illegal discards and high
grading of crab.
This final rule will increase operational efficiencies and revenues
for participants in the WAG fishery. Prior to this final rule, vessels
could offload portions of CR Program crab at multiple processors but
were prohibited from resuming fishing or taking CR Program crab on
board the vessel once a landing had commenced and until all CR crab
were landed. As noted in the proposed rule and final RIR, the
prohibition against resuming fishing before all crab have been
offloaded from a vessel created inefficiencies and costs associated
with requiring crab harvesting vessels to travel significant distances
to land a partial load of WAG. Allowing vessels harvesting WAG to make
partial landings for delivery to the live market and continue
harvesting crab before fully offloading at a processor that can receive
a larger vessel load of crab is expected to increase operational
efficiencies and revenues for participants in the WAG fishery.
Waiving the 30-day delay in this final rule's effectiveness will
help improve economic opportunities for the WAG fishery, which is
remote and economically challenging for participants, as well as create
the possibility of mutual benefits to harvesters, processors located in
the western Aleutians, and any communities that develop a live market
opportunity. There is no administrative need for additional time beyond
the publication of this final rule. This is a noncontroversial action
that positively affects a small number of fishery participants by
relieving a restriction. NMFS is unaware of any participants who would
not be in favor of or would be potentially harmed by waiving the 30-day
delay in effectiveness. Without waiving the 30-day delay in
effectiveness, WAG participants affected by this final rule would not
be able to benefit from the exemption before the end of the 2015/2016
fishing season, which would delay the associated economic opportunities
being sought through this final rule.
For these reasons, the NMFS Assistant Administrator finds good
cause to waive the 30-day delay in effectiveness and
[[Page 24516]]
this final rule is effective on the day that it is published in the
Federal Register.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a final regulatory flexibility
analysis, the agency shall publish one or more guides to assist small
entities in complying with the rule, and shall designate such
publications as ``small entity compliance guides.'' The agency shall
explain the actions a small entity is required to take to comply with a
rule or group of rules. The preamble to the proposed rule (81 FR 8886,
February 23, 2016) and the preamble to this final rule serve as the
small entity compliance guide. This rule does not require any
additional compliance from small entities that is not described in the
preamble to the proposed rule and this final rule. Copies of the
proposed rule and this final rule are available from NMFS at the
following Web site: http://alaskafisheries.noaa.gov.
Final Regulatory Flexibility Analysis (FRFA)
Section 604 of the Regulatory Flexibility Act requires an agency to
prepare a FRFA after being required to publish a general notice of
proposed rulemaking and when an agency promulgates a final rule under
section 553 of Title 5 of the U.S. Code. The following paragraphs
constitute the FRFA for this action.
Section 604 describes the required contents of a FRFA: (1) A
statement of the need for, and objectives of, the rule; (2) a statement
of the significant issues raised by the public comments in response to
the initial regulatory flexibility analysis, a statement of the
assessment of the agency of such issues, and a statement of any changes
made in the proposed rule as a result of such comments; (3) the
response of the agency to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration in response to the
proposed rule, and a detailed statement of any change made to the
proposed rule in the final rule as a result of the comments; (4) a
description of and an estimate of the number of small entities to which
the rule will apply or an explanation of why no such estimate is
available; (5) a description of the projected reporting, recordkeeping
and other compliance requirements of the rule, including an estimate of
the classes of small entities which will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record; and (6) a description of the steps the agency has
taken to minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes, including
a statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected.
Need for and Objectives of the Rule
A description of the need for, and objectives of, the rule is
contained in the preamble to the proposed rule and this final rule and
is not repeated here. This FRFA incorporates the IRFA and the summary
of the IRFA in the proposed rule (81 FR 8886, February 23, 2016).
Summary of Significant Issues Raised During Public Comment
NMFS published a rule that proposed to modify regulations governing
the CR Program on February 23, 2016 (81 FR 8886). An IRFA was prepared
and summarized in the Classification section of the preamble to the
proposed rule. The comment period on the proposed rule ended on March
24, 2016. NMFS received 4 letters of public comment containing nine
unique substantive comments on the proposed rule. These comment letters
did not address the IRFA. The comments did generally address the
economic impacts of the rule by requesting that the final rule be
implemented as soon as possible to allow the participants in the WAG
fishery to conduct partial offloads and resume fishing prior to the
close of the WAG fishery season on April 30, 2016. As explained
previously, the NMFS Assistant Administrator finds good cause under 5
U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the
provisions in this final rule. The Chief Counsel for Advocacy of the
Small Business Administration did not file any comments on the proposed
rule.
Number and Description of Small Entities Regulated by This Rule
The Small Business Administration defines a small commercial
shellfish fishing entity as one that has annual gross receipts, from
all activities of all affiliates, of less than $5.5 million (79 FR
33647, June 12, 2014).
Action 1 creates an exemption for the WAG fishery from the
prohibition at Sec. 680.7(b)(3) that precludes a person from resuming
fishing before all crab has been offloaded from a vessel. Under Action
1, the entities directly regulated by this rule are those entities that
participate in the WAG fishery: Vessel operators, QS holders, and IFQ
holders. This rule does not directly affect PQS holders, IPQ holders,
or communities. Three vessels were active in the 2013/2014 WAG fishery.
These vessels received the majority of their revenue from shellfish
from 2012 through 2014. The entities directly regulated by this rule
are members of a cooperative that exceeds the $5.5 million revenue
threshold for a shellfish entity and are not considered small entities
(see Section 4.3 of the final RIR). The number of WAG fishery QS
holders is listed in Table 3-3 in Section 3.5.2 of the final RIR. Gross
revenue information is not available for these QS holders. Of the QS
holders listed, at least 3 of the entities holding catcher vessel owner
(CVO) QS are known to be large entities as defined by the Small
Business Administration. The remaining 11 CVO QS holders and 8 CVC QS
holders are assumed to be small entities.
Action 2 adds regulatory text that was inadvertently removed. The
effect of Action 2 on directly regulated small entities is described in
the FRFA prepared for a final rule implementing regulations to provide
harvesting cooperatives, crab PQS holders, and Western Alaska Community
Development Quota groups with the option to make web-based transfers
(74 FR 51515, October 7, 2009) and for regulations implementing
Amendment 31 to the Crab FMP (80 FR 15891, March 26, 2015).
Action 3 removes regulatory requirements for LLP licenses that are
no longer applicable under the Crab FMP as described in the analysis
for Amendment 24 to the Crab FMP (73 FR 33925, June 16, 2008). Action 3
will not impact directly regulated entities because no entities (small
or otherwise) are currently participating in these crab fisheries, and
this rule will not preclude them from doing so under the appropriate
State regulations.
Recordkeeping and Reporting Requirements
Action 1 will not require any modifications to the current Federal
recordkeeping and reporting requirements for the CR Program. Action 2
references the collection-of-information requirement for the
Application for Transfer of Crab QS or PQS (Office of Management and
Budget (OMB) Control Number 0648-0514), however, this rule does not
require modifications to the application and will not increase the
public reporting burden associated with it. Action 3 will not require
LLP license holders to take any action relative to their LLP licenses
[[Page 24517]]
and will not impact any public reporting burden. There was a
collection-of-information requirement for the initial issuance of LLPs,
OMB Control Number 0648-0334; however after initial issuance, LLPs do
not expire.
Description of Significant Alternatives to the Final Action That
Minimize Adverse Impacts on Small Entities
An FRFA also requires a description of any significant alternatives
to this final rule that would accomplish the stated objectives, are
consistent with applicable statutes, and that would minimize any
significant economic impact of this rule on small entities. Under all
actions, NMFS considered two alternatives--the no action alternative
and the action alternative. During the Council's initial discussion of
the need for Action 1, it also considered extending the exemption from
the prohibition against resuming fishing before all CR Program crab
have been landed to all CR Program fisheries. However, the Council
rejected this approach because it was too broad for the stated
objectives, which were specific to the WAG fishery. Because Actions 2
and 3 are administratively focused and had a narrow purpose and need,
there were no alternatives except the action alternative and the no
action alternative that were considered.
Under Action 1, the no action alternative is not expected to
minimize adverse economic impacts for the small entities directly
regulated by this rule. These entities are currently required to make
partial landings at the Adak processing facility and transit several
hundred miles from the fishing grounds to deliver the remaining crab on
board the vessel to a processor that can accept a full offload of crab
from the vessels. The no action alternative results in operating
inefficiencies and additional costs from requiring vessels to travel
significant distances to land a partial load of WAG. The action
alternative is expected to provide positive economic impacts for small
entities compared to the no action alternative because it lifts a
restriction on WAG fishery participants. Therefore, no directly
regulated small entities are expected to be adversely impacted by this
rule. The action alternative could improve operating efficiencies and
increase fishery revenues for WAG fishery participants by supporting
the opportunity to supply crab to the live market for a premium price
compared to crab delivered to traditional markets.
Under Action 2, the no action alternative would not correct the
error in regulation. The action alternative reinstates the regulation
that was incorrectly removed. This rule will not change the impacts on
small entities from the impacts considered in the FRFA prepared for the
final rule implementing regulations to provide harvesting cooperatives,
crab processing quota share holders, and Western Alaska Community
Development Quota groups with the option to make web-based transfers
(74 FR 51515, October 7, 2009) and for Amendment 31 to the Crab FMP.
The FRFA for the web-based transfers rule described the impacts of the
rule as beneficial to small entities because the rule would simplify
the process for completing transfers. The FRFA for Amendment 31
described that under Amendment 31, the submission of documentation
demonstrating active participation for C share QS holders was necessary
to implement the active participation requirements, but was not
expected to have a significant impact on small entities due to the need
to submit the information only upon the request to receive C share QS
by transfer.
Under Action 3, the no action alternative would retain regulations
for LLP license requirements that are no longer applicable under the
Crab FMP. The action alternative makes LLP license requirements
consistent with the Crab FMP and reduces potential confusion for small
entities. Action 3 requires the reissuance of LLP licenses to the 274
license holders with the Aleutian Islands C. bairdi/C. opilio crab and/
or the Eastern Aleutian Islands red king crab endorsement; however,
this requires no action taken on the part of any small entities. Action
3 will not impact directly regulated entities because no entities are
currently participating in these crab fisheries, and this rule will not
preclude them from doing so under the appropriate State regulations.
Collection-of-Information Requirements
This rule references collection-of-information requirements subject
to the Paperwork Reduction Act (PRA), which have been approved by OMB
and are listed below by OMB control number.
OMB Control Number 0648-0334
The crab LLP is mentioned in this rule, but there will be no change
in burden or cost results. NMFS will modify LLP licenses to remove the
Aleutian Islands C. bairdi/C. opilio crab and Eastern Aleutian Islands
red king crab endorsement. NMFS does not expect that removal of these
area/species endorsements will impact LLP license holders.
OMB Control Number 0648-0514
The Application for CR Program Eligibility to Receive QS/PQS or
IFQ/IPQ by Transfer and the Application for Transfer of Crab QS/PQS are
mentioned in this rule, but there will be no change in burden or cost
results. The fishery participation approval criteria for an individual
to receive C share QS by transfer were inadvertently deleted from the
regulations with a final rule published on October 7, 2009 (74 FR
51515) and will be replaced by this action.
Send comments on these or any other aspects of the collection of
information, to NMFS (see ADDRESSES), and by email to
[email protected] or fax to 202-395-5806.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to penalty for
failure to comply with, a collection of information subject to the
requirement of the PRA, unless that collection of information displays
a currently valid OMB control number. All currently approved NOAA
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
List of Subjects
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
50 CFR Part 680
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: April 20, 2016.
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. 679.4,
0
a. Remove paragraph (k)(1)(ii)(A);
0
b. Redesignate paragraph (k)(1)(ii)(B) as new paragraph (k)(1)(ii)(A);
0
c. Revise newly redesignated paragraph (k)(1)(ii)(A);
0
d. Redesignate paragraph (k)(1)(ii)(C) as new paragraph (k)(1)(ii)(B)
and paragraph (k)(1)(ii)(D)(1) as new paragraph (k)(1)(ii)(C);
[[Page 24518]]
0
f. Revise newly redesignated paragraph (k)(1)(ii)(C); and
0
g. Remove paragraph (k)(1)(ii)(D).
The revisions read as follows:
Sec. 679.4 Permits.
* * * * *
(k) * * *
(1) * * *
(ii) * * *
(A) Aleutian Islands Area C. opilio.
* * * * *
(C) Minor Species endorsement for Bering Sea golden king crab
(Lithodes aequispinus).
* * * * *
PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF
ALASKA
0
3. 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
4. In Sec. 680.7, revise paragraph (b)(3) to read as follows:
Sec. 680.7 Prohibitions.
* * * * *
(b) * * *
(3) Resume fishing for CR crab or take CR crab on board a vessel
once a landing has commenced and until all CR crab are landed, unless
fishing in the Western Aleutian Islands golden king crab fishery.
* * * * *
0
5. In Sec. 680.41, add paragraph (i)(11) to read as follows:
Sec. 680.41 Transfer of QS, PQS, IFQ and IPQ.
* * * * *
(i) * * *
(11) The person applying to receive the CVC QS or IFQ or CPC QS or
IFQ by transfer has submitted proof of at least one delivery of a crab
species in any CR crab fishery in the 365 days prior to submission to
NMFS of the Application for transfer of crab QS/IFQ or PQS/IPQ, except
if eligible under the eligibility requirements in paragraph
(c)(1)(vii)(B) of this section. Proof of this landing is--
(i) Signature of the applicant on an ADF&G fish ticket; or
(ii) An affidavit from the vessel owner attesting to that person's
participation as a member of a fish harvesting crew on board a vessel
during a landing of a crab QS species within the 365 days prior to
submission of an Application for transfer of crab QS/IFQ or PQS/IPQ.
* * * * *
[FR Doc. 2016-09678 Filed 4-25-16; 8:45 am]
BILLING CODE 3510-22-P