[Federal Register Volume 85, Number 150 (Tuesday, August 4, 2020)]
[Proposed Rules]
[Pages 47157-47159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15661]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 200713-0189]
RIN 0648-BJ64


Fisheries of the Exclusive Economic Zone Off Alaska; Removing the 
Prohibition on Continuing To Fish After a Partial Offload in the Bering 
Sea/Aleutian Islands Crab Rationalization Program

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule that would remove the regulatory 
prohibition on continuing to fish after a partial offload in the Bering 
Sea and Aleutian Islands (BS/AI) Crab Rationalization (CR) Program. 
This proposed action is needed to provide CR crab fishery participants 
operational flexibility to conduct their business in an efficient 
manner, in particular when emergencies or special circumstances arise. 
This proposed rule is intended to promote the goals and objectives of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), the Fishery Management Plan (FMP) for BS/AI King and 
Tanner Crabs (Crab FMP), and other applicable laws.

DATES: Submit comments on or before September 3, 2020.

ADDRESSES: You may submit comments on this document, identified by FDMS 
Docket Number NOAA-NMFS-2020-0034, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0034, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Records Office. Mail comments to P.O. Box 21668, Juneau, AK 
99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).
    Electronic copies of the draft Regulatory Impact Review (referred 
to as the ``Analysis'') and the draft Categorical Exclusion prepared 
for this proposed rule may be obtained from www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Megan Mackey, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Authority for Action

    NMFS manages the king and Tanner crab fisheries in the exclusive 
economic zone (EEZ) of the BS/AI under the Crab FMP. The North Pacific 
Fishery Management Council (Council) prepared the Crab FMP under the 
authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. 
Regulations implementing most provisions of the Crab FMP, including the 
CR Program, are located at 50 CFR part 680. Regulations implementing 
specific provisions of the Crab FMP that pertain to the License 
Limitation Permit Program are located at 50 CFR part 679.
    All relevant comments submitted on this proposed rule and received 
by the end of the comment period (See DATES) will be considered by NMFS 
and addressed in the response to comments in the final rule.

Background

    The CR Program was implemented on April 1, 2005 (70 FR 10174, March 
2, 2005). The CR Program established a limited access program (LAP) for 
nine crab fisheries in the BS/AI and assigned quota share (QS) to 
persons based on their historic participation in one or more of those 
nine BS/AI crab fisheries during a specific period. Each year, a person 
who holds QS may receive an exclusive harvest privilege for a portion

[[Page 47158]]

of the annual total allowable catch (TAC). This annual exclusive 
harvest privilege is called individual fishing quota (IFQ).
    NMFS also issued processor quota share (PQS) under the CR Program. 
Each year, PQS yields an exclusive privilege to process a portion of 
the IFQ in each of the nine BS/AI CR crab fisheries. This annual 
exclusive processing privilege is called individual processor quota 
(IPQ). Only a portion of the QS issued yields IFQ that is required to 
be delivered to a processor with IPQ. Each year there is a one-to-one 
match between the total pounds of IFQ that must be delivered to a 
processor with IPQ with and the total pounds of IPQ issued in each CR 
crab fishery.
    Under current regulations, a person may offload a portion of CR 
crab from a vessel at multiple processors. However, except for the 
Western Aleutian Islands golden king crab fishery, regulations at 50 
CFR 680.7(b)(3) prohibit a person from fishing again or taking CR crab 
on board the vessel until all of the crab originally on board the 
vessel have been offloaded. The prohibition against resuming fishing 
once an offload has commenced and until it is completed applies to CR 
Program crab, which includes IFQ and Community Development Quota (CDQ) 
crab landings. In December 2019, the Council recommended removing the 
regulatory prohibition on resuming fishing for CR crab between partial 
offloads for all CR crab fisheries. This proposed rule is a regulatory 
amendment that would remove this prohibition against continuing to fish 
in the BSAI CR crab fisheries once offloading has commenced and until 
all CR crab are landed.
    Removal of the prohibition would provide IFQ and CDQ participants 
in CR crab fisheries operational flexibility to conduct their business 
in an efficient manner, in particular when emergencies or special 
circumstances arise, such as inclement weather. With adjustments by the 
State to its data collection protocols, proper catch accounting would 
be maintained with this proposed action. The following sections of this 
preamble provide (1) a brief history of the prohibition on crab partial 
offloads; (2) the expected effects of and need for this action; and (3) 
a description of the regulatory change made by this proposed rule.

Brief History of the Prohibition on Crab Partial Offloads

    The regulatory prohibition on returning to fish after a partial 
offload of crab was originally established with the implementation of 
the CR Program. NMFS published the final rule to implement the CR 
Program on March 2, 2005 (70 FR 10174). Fishing under the CR Program 
started with the 2005/2006 crab fishing year. The regulatory 
prohibition on partial offloads at 50 CFR 680.7(b)(3) was intended to 
address enforcement concerns associated with a potential change in 
discarding behavior due to the new management of the fisheries. 
Specifically, there were concerns that undesirable crab (e.g., 
overages, deadloss, or barnacled crab) would be discarded at sea 
without being accounted for, and there was a concern that resuming 
fishing between partial offloads would exacerbate the opportunity to 
discard crab illegally. The prohibition was intended to ensure that all 
fishery removals are monitored and reported in the CR Program catch 
accounting system. The final rule to implement the CR Program has a 
detailed description of the monitoring and catch accounting provisions 
in the CR crab fisheries (70 FR 10174, March 2, 2005).
    Experience with the CR Program has shown that illegal (unreported) 
crab discards are unlikely for several reasons. First, there is no 
prohibition on sorting crab at the rail, and this is where undesirable 
crab are often discarded. These discards are accounted for by the 
Alaska Department of Fish and Game (ADF&G) and ADF&G has communicated 
to industry that high levels of discarding at the rail would be 
reflected in the stock assessments and ultimate crab TACs. Second, 
while discarding crab later in the trip is prohibited, dumping crab at 
sea once it has gone into the tanks would be dangerous and impractical. 
Third, the risk of quota overages has been greatly reduced due to the 
cooperative structure of the CR Program, online quota transfers, and 
post-delivery quota transfers, giving the industry many options to 
resolve a potential overage. Finally, the structure of the CR Program 
means more people than just the vessel operators are put at risk by 
this sort of illegal activity. Experience with the CR Program also has 
shown that the prohibition against continuing to fish for CR crab after 
an offload has begun and until the offload is complete has simplified 
dockside sampling and catch accounting.
    In 2016, the Council recommended, and NMFS implemented an exemption 
from this prohibition specifically for the Western Aleutian Islands 
golden king crab (WAG) fishery (81 FR 24511, April 26, 2016). This 
exemption was developed to accommodate harvesting and processing 
operations in Adak, Alaska for a live crab market. In order to make 
this live market opportunity economically viable, processors needed 
vessels to be able to deliver small amounts of crab opportunistically 
while commercial aircraft were available. The Council wished to promote 
the product development and market opportunity, the economic 
efficiency, and potential community benefits this exemption could 
foster. Additionally, ADF&G determined that, given the small number of 
vessels prosecuting this fishery (consistently two to four vessels), 
ADF&G staff could work with these vessel operators to ensure this 
change would be minimally disruptive to the monitoring and accounting 
for catch in the WAG fishery.
    In April 2018, the Council received a proposal from the Pacific 
Northwest Crab Industry Advisory Committee, requesting the same 
consideration for the rest of the CR crab fisheries. In February 2019, 
the Council decided to examine the proposal, stating that while the 
Council was interested in providing operational flexibility, 
particularly in emergencies or special circumstances, it also wanted to 
ensure that ADF&G would be able to maintain proper catch monitoring and 
accounting in the CR crab fisheries.

The Expected Effects of and Need for This Action

    While fishing after a partial delivery was fairly common practice 
by vessels racing to catch and deliver crab before the CR Program was 
implemented, the CR Program has increased coordination between 
harvesters and processors, allowing for an increase in the efficiency 
of offloads. Under the CR Program, it is more economically efficient 
for vessels to offload all crab before resuming fishing in order to 
avoid deadloss of the crab sitting in tanks on the vessel. For this, 
and other reasons described earlier, the Council and NMFS do not 
anticipate that the resumption of fishing after a crab partial offload 
would become a routine operating procedure if the prohibition on 
fishing between partial offloads is removed. The flexibility resulting 
from this action would only be expected to be used in emergency 
situations, such as inclement weather, or special circumstances related 
to the economics of the operations. Therefore, the impacts of this 
action are expected to be minimal and only beneficial.
    While the prohibition at Sec.  680.7(b)(3) may no longer be needed 
to address enforcement concerns, the prohibition has greatly simplified 
dockside sampling and catch accounting. Section 2.7.4 of the Analysis 
for this action examined the effects of removing this

[[Page 47159]]

prohibition for all CR fisheries on the State's monitoring and catch 
accounting procedures and indicated whether modifications would be 
necessary and if necessary, what modifications would be required. 
Section 2.7.4 concludes that without modifications by ADF&G to 
accommodate the proposed change, removal of the prohibition could 
complicate some aspects of the State's dockside sampling, catch 
accounting, and Observer Program, and may degrade the spatial quality 
of some of the data collected in these fisheries.
    For example, Section 2.7.4.3 of the Analysis states that ADF&G's 
protocol for at-sea sampling would likely not have to change under the 
proposed action, but that the State's Observer Program may need to 
define and adjust to a new definition of ``trip'' for some observer 
sampling purposes. In addition, NMFS requires operators of vessels in 
the CR crab fisheries to complete a daily fishing log. ADF&G uses data 
from the daily fishing log to verify landings and to ensure accurate 
accounting for all fishery removals. These existing accounting 
protocols will help to mitigate any complications that may arise if a 
CR crab fishery participant were to continue fishing between partial 
offloads. Finally, any level of concern with the complexity the 
proposed action generates regarding management and accounting issues is 
tied to frequency of use. Because this proposed action is not 
anticipated to be used often, any complexity regarding catch accounting 
is expected to be minimal. ADF&G indicated that it could adjust its 
monitoring and catch accounting procedures and protocols to accommodate 
the proposed action and maintain data quality, and that it would make 
those adjustments upon implementation of the action.
    The Council determined, and NMFS agrees, that this proposed action 
would provide CR Program fishery participants with additional 
operational flexibility to conduct their business in an efficient 
manner, in particular when emergencies or special circumstances arise, 
such as inclement weather. The Council also acknowledged that with 
adjustments by the State to its data collection protocols, proper catch 
accounting would be maintained with this proposed action.

Proposed Rule

    This proposed rule would remove the prohibition on continuing to 
fish after a partial offload of crab in the BS/AI CR crab fisheries. To 
make that change, this proposed rule would remove the prohibition 
language in section (b)(3) under 50 CFR 680.7 and renumber subsequent 
sections under Sec.  680.7(b).

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Council's regulatory amendment, the Crab FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    This proposed rule is expected to be an Executive Order 13771 
deregulatory action.

Certification Under the Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    This proposed rule would remove the prohibition against continuing 
to fish in the BS/AI CR crab fisheries once offloading has commenced 
and until all CR Program crab are landed. This will allow CR Program 
fishery participants operational flexibility to conduct their business 
in an efficient manner, in particular when emergencies or special 
circumstances arise, while also ensuring proper catch accounting.
    Entities that would be directly regulated by this proposed rule 
include those that commercially harvest BS/AI CR crab, including 
holders of IFQ and CDQ crab. These are the participants currently 
regulated by the prohibition at 50 CFR 680.7(b)(3). Although 
potentially impacted, regulatory changes from the proposed rule would 
not directly include processors, processor quota shareholders, 
individual processing quota holders, or communities. In 2018, the most 
recent year with vessel revenue data available, there were 68 vessels 
participating in CR crab fisheries (including harvesting CDQ crab). All 
of these vessels fished within cooperatives, and all but 8 of these 
vessels were part of cooperatives whose gross revenues exceeded $11.0 
million. Thus, due to their affiliations, 60 harvesters are considered 
large entities for purposes of the Regulatory Flexibility Act (RFA), 
and 8 are considered small entities. In recent years, vessels 
unaffiliated with a cooperative harvested a small amount of quota. If 
unaffiliated with a cooperative, these entities may also be considered 
small under the RFA definition. Based on the scope of this action, 
impacts to small, directly regulated entities are expected to be 
minimal and beneficial if the entities decide to use the flexibility to 
continue fishing after a partial offload.
    This action does not place any new regulatory burden on CR Program 
participants; it allows increased flexibility for vessels that choose 
to use the voluntary harvest flexibility. This proposed action, 
therefore, is not expected to have a significant economic impact on a 
substantial number of the small entities directly regulated by this 
proposed action.
    As a result, an initial regulatory flexibility analysis is not 
required, and none has been prepared.

Regulatory Impact Review

    A Regulatory Impact Review was prepared to assess the costs and 
benefits of available regulatory alternatives. A copy of this analysis 
is available from NMFS (see ADDRESSES). The Council recommended and 
NMFS proposes these regulations based on those measures that maximize 
net benefits to the Nation.

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: July 14, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set out in the preamble, NMFS proposes to amend 50 CFR 
part 680 as follows:

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

0
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.


Sec.  680.7   Amended

0
2. In Sec.  680.7, remove paragraph (b)(3) and redesignate paragraphs 
(b)(4) through (7) as (b)(3) through (6), respectively.

[FR Doc. 2020-15661 Filed 8-3-20; 8:45 am]
BILLING CODE 3510-22-P