[Federal Register Volume 89, Number 46 (Thursday, March 7, 2024)]
[Proposed Rules]
[Pages 16510-16520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04733]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 680
[Docket No. 240229-0066]
RIN 0648-BM81
Fisheries of the Exclusive Economic Zone; 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.
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SUMMARY: NMFS issues a proposed rule to implement Amendments 54 and 55
to the Fishery Management Plan (FMP) for Bering Sea and Aleutian
Islands (BSAI) King and Tanner Crabs (Crab FMP). This proposed rule
would revise two provisions of the Crab Rationalization Program (CR
Program) to do the following: change active crab fishery participation
requirements for crab quota share (crab QS) established for vessel
operators and crew, and expand the exemptions for CR Program custom
processing from processor use caps and remove the CR Program processor
facility use cap. These actions are intended to provide operators and
crew greater flexibility in meeting CR Program participation
requirements and to improve CR Program processor efficiency. This
proposed rule is intended to promote the goals and objectives of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), the Crab FMP, and other applicable laws.
DATES: Submit comments on or before April 8, 2024.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2023-0159, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2023-0159 in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Gretchen Harrington,
Assistant Regional Administrator, Sustainable Fisheries Division,
Alaska Region NMFS. 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
https://www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), 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).
[[Page 16511]]
Electronic copies of Amendments 54 and 55 to the Crab FMP, the
Regulatory Impact Reviews (RIRs) prepared for Amendment 54 and
Amendment 55, and the Categorical Exclusion prepared for this action
may be obtained from https://www.regulations.gov or from the NMFS
Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.
NMFS determined that this proposed action amending the Crab FMP and
implementing the amendments are categorically excluded from
requirements to otherwise prepare an environmental assessment under the
National Environmental Policy Act.
The Environmental Impact Statement (Program EIS), RIR (Program
RIR), Final Regulatory Flexibility Analysis (Program FRFA), and Social
Impact Assessment that were previously prepared for the CR Program are
available from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS at the above address and to
https://www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under 30-day Review--
Open for Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Andrew Olson, 907-586-7228,
[email protected].
SUPPLEMENTARY INFORMATION: The king and Tanner crab fisheries in the
exclusive economic zone of the BSAI are managed under the Crab FMP. The
Crab FMP was prepared by the Council under the Magnuson-Stevens Act as
amended by the Consolidated Appropriations Act of 2004 (Pub. L. 108-
199, section 801). Regulations implementing the Crab FMP, including the
CR Program, are primarily located at 50 CFR part 680.
Background
NMFS implemented the CR Program as a limited access privilege
program, also called a catch share program, for nine crab fisheries in
the BSAI on March 2, 2005 (70 FR 10174). The CR Program FMP has been
amended seventeen times since 2005.
Amendments 54 and 55 to the Crab FMP and this proposed rule would
revise two provisions of the CR Program to: (1) change active
participation requirements for quota share established for CR Program
vessel operators and crew, and (2) expand exemptions for custom
processing from processor use caps and remove the processor facility
use caps.
CR Program Overview
The CR Program includes nine crab fisheries in the BSAI: Bristol
Bay red king crab (BBR) (Paralithodes camtschaticus), Western Aleutian
Islands (Adak) golden king crab (WAG) (Lithodes aequispinus)--West of
174[deg] W, Eastern Aleutian Islands (Dutch Harbor) golden king crab
(EAG)--East of 174[deg] W, Western Aleutian Islands (Adak) red king
crab (WAI)--West of 179[deg] W, Saint Matthew Island blue king crab (P.
platypus) (SMB), Pribilof Islands blue and red king crab (PIK), Western
Bering Sea Tanner crab (WBT) (Chionoecetes bairdi)--West of 166[deg] W,
Eastern Bering Sea Tanner crab (EBT)--East of 166[deg] W, and Bering
Sea snow crab (BSS) (C. opilio). In this document, the phrases ``crab
fishery'' and ``crab fisheries,'' quota share (QS),'' ``individual
fishing quota (IFQ)'' refer to these fisheries and the associated CR
Program, unless otherwise specified.
The CR Program includes QS and processor quota share (PQS) that are
revocable privileges and allow the holder to harvest or process a
specific percentage of the annual total allowable catch (TAC) in a crab
fishery, reduced by the allocation to the Western Alaska Community
Development Quota (CDQ) Program and the Adak Community Development
Allocation. CDQ entities are allocated 10 percent of the crab TACs and
Adak is issued an annual allocation of 10 percent of the WAG TAC to
provide BSAI communities the opportunity to participate and invest in
the crab fisheries. This annual calculation is explained in regulations
at Sec. 680.40(h).
The CR Program initially assigned QS to persons based on their
historic participation in one or more of the nine crab fisheries during
a specific time period. Under the CR Program, NMFS issued four types of
QS: catcher vessel owner (CVO) QS was assigned to holders of License
Limitation Program (LLP) licenses who delivered their catch to
shoreside crab processors or to stationary floating crab processors;
catcher/processor owner (CPO) QS was assigned to LLP license holders
who harvested and processed their catch at sea; catcher/processor crew
(CPC) QS was issued to operators and crew on board catcher/processor
vessels; and catcher vessel crew (CVC) QS was issued to operators and
crew on board catcher vessels. Each crab fishing year, which is the
period from July 1 of one calendar through June 30 of the following
calendar year (Sec. 680.2), a person who holds QS in one or more of
the crab fisheries may receive an exclusive harvest privilege for a
portion of the annual TAC of a crab fishery, called IFQ. CVC QS and CPC
QS, also called C shares, are described later in this preamble in C
Shares and Active Participation Requirements.
A person's QS holdings equates to specific pounds of IFQ that are
calculated on an annual basis for use in the corresponding crab fishing
year. Each year, a QS holder submits a timely and complete application
for a crab IFQ permit in order to receive IFQ for each crab fishery in
which the person holds QS (Sec. 680.40(g)). IFQ provides the crab QS
holder with an annual allocation of pounds of crab for harvest in a
specific crab fishery during the year in which it was allocated. The
amount 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 (Sec.
680.40(h)). For example, a person's QS equaling one percent of the QS
pool in a crab fishery would receive IFQ to harvest one percent of the
annual TAC allocated to QS in that crab fishery.
NMFS also issued PQS to CR Program processors based on their
historic participation in one or more of the nine crab fisheries during
a specific period. Each year, PQS yields an exclusive privilege to
process a portion of the IFQ for each crab fishery. 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 also known as ``share matching.''
Share matching requires IFQ holders to match up shares with IPQ holders
that have available IPQ. CVO QS is subject to designation as either
Class A IFQ or Class B IFQ. Ninety percent of the IFQ derived from CVO
QS is designated as Class A IFQ, and the remaining 10 percent is
designated as Class B IFQ. Class A IFQ must be matched and delivered to
a processor with IPQ. Class B IFQ is not required to be delivered to a
processor holding IPQ for that fishery. Each year, there is a one-to-
one match of the total pounds of Class A IFQ with the total pounds of
IPQ issued in each crab fishery.
Annually, QS holders must submit a timely and complete
``Application for Annual Crab Individual Fishing Quota (IFQ) Permit''
for allocations of IFQ for the upcoming crab fishing year in order to
receive IFQ. IFQ applicants must indicate whether or not they are
joining a cooperative. Each cooperative submits an annual IFQ
application that includes the QS holder's annual IFQ application (or a
copy of that application). Because
[[Page 16512]]
IPQ is not subject to cooperative management, a PQS holder applies for
IPQ directly to NMFS, and NMFS issues IPQ directly to the PQS holder.
Under regulations at Sec. 680.4(f), all applications for IFQ, IPQ, and
cooperative IFQ must be filed with the NMFS Restricted Access
Management (RAM) Division by June 15. Unresolved applications at the
time of IFQ and IPQ issuance can result in a mismatch of A share IFQ to
the IPQ it must be matched with.
Although the crab fishing year begins on July 1 and runs through
June 30 of the following calendar year, individual crab fisheries open
at various times. For instance, the WAG and EAG crab fisheries
typically open on August 1 and the remaining seven crab fisheries open
on October 15 or later in the crab fishing year. Therefore, NMFS
prioritizes review of IFQ and IPQ applications based on the timing of
fishery openings. To aid QS and PQS holders in meeting the June 15
application deadline, NMFS provides application forms on its website
(see ADDRESSES), highlights the application deadline on the website,
and sends notices to QS and PQS holders near the end of the crab
fishing year reminding them to apply for IFQ or IPQ for the next crab
fishing year.
Crab fisheries are also subject to provisions intended to maintain
crab processing activity in communities that had historic crab
processing activity. Crab fisheries participants, such as catcher
vessels, are subject to regional delivery and processing requirements,
commonly known as regionalization. Certain crab fisheries, the WBT,
EBT, and a portion of the WAG QS, are not regionalized. Crab fisheries
are also subject to the right-of-first-refusal (ROFR) provisions
included in the CR Program, with the exception of WBT, EBT, WAG and
WAI. The ROFR provisions provide certain Eligible Crab communities
(ECC) (Sec. 680.2) with an option to purchase PQS or IPQ that would
otherwise be transferred outside of the community holding the ROFR.
The CR Program limits the amount of QS that a person can hold
(i.e., own), the amount of IFQ that a person can use (i.e., harvest
crab), and the amount of IFQ that can be used on board a vessel (i.e.,
vessel harvest cap). Similarly, the CR Program limits the amount of PQS
that a person, such as a crab processor, can hold (i.e., own), the
amount of IPQ that a person can use (i.e., process crab), and the
amount of IPQ that can be processed or custom processed at a given
facility CR Program facility (i.e., processor cap). These limits are
commonly referred to as QS ownership caps and use caps. The CR Program
limits on IPQ use and holding and the amount of IPQ that can be
processed at a given facility are discussed later in this preamble in
the IPQ Use Caps and Custom Processing Arrangements section.
The following sections of this preamble focus on the two proposed
actions and describe (1) background information on CVC QS and CPC QS
and active participation requirements, the annual IFQ and IPQ
application process, IPQ use caps and custom processing arrangements,
and the facility use cap; (2) the need for Amendment 54 to the Crab
FMP; (3) the need for Amendment 55 to the Crab FMP; and (4) the
specific provisions and impacts of this proposed rule.
C Shares and Active Participation Requirements
NMFS initially allocated 3 percent of the QS to individuals holding
State of Alaska Commercial Fisheries Entry Commission Interim Use
Permits, generally vessel operators, who met specific historic and
recent participation requirements in crab fisheries. After the initial
issuance of CVC QS and CPC QS (collectively referred to as C shares),
individuals may only acquire CVC QS or CPC QS through transfer (i.e.,
purchasing QS on the open market). The following CVC QS and CPC QS
provisions are the subject of this action.
An individual's CVC QS or CPC QS holdings equate to specific pounds
of IFQ that are calculated on an annual crab fishing year basis. By
June 15 of each crab fishing year, a CVC QS or CPC QS holder who wishes
to participate in that crab fishing year's crab fishery must submit a
timely and complete application for a crab IFQ permit in one or more
crab fisheries in which that person holds QS.
Both in original CR Program design and subsequently reinforced
through Amendment 31 (discussed below) to the Crab FMP (80 FR 15891,
March 26, 2015), the Council and NMFS intended that individuals holding
CVC QS and CPC QS be active participants in CR Program crab fisheries.
Since June 2018 (3 years after implementation of Amendment 31), in
order to receive an annual allocation of CVC IFQ or CPC IFQ, the
regulations require a CVC QS and CPC QS holder to have met either of
the following conditions to demonstrate active participation:
(1) Participated as crew in at least one delivery in a CR Program
crab fishery in the 3 crab fishing years preceding the crab fishing
year for which the holder is applying for IFQ; or
(2) If the individual was an initial recipient of CVC QS or CPC QS,
participated as crew in at least 30 days of fishing in a commercial
fishery managed by the of State of Alaska or a U.S. commercial fishery
in Federal waters off Alaska during the 3 crab fishing years preceding
the crab fishing year for which the QS holder is applying for IFQ
(Sec. 680.40(g)(2)).
However, if a CVC QS or CPC QS holder holds QS in only a single
crab fishery and that crab fishery is closed to fishing for an entire
crab fishing year, NMFS will exclude that year when determining whether
the CVC QS or CPC QS holder has satisfied the active participation
requirement. If the CVC QS or CPC QS holder does not successfully
demonstrate active participation over a 3-year period, the holder will
not be issued IFQ for that subsequent crab fishing year.
While a CVC QS and CPC QS holder has 3 years in which to
demonstrate active participation in order to receive IFQ, there is a
different period of time applied in order for the CVC QS and CPC QS
holder to prevent revocation of the QS altogether. In order to retain
CVC QS and CPC QS, an individual has 4 crab fishing years to meet these
same participation requirements (Sec. 680.40(m)). The Council
recommended revocation of CVC QS and CPC QS if the QS holder continues
to be inactive as an incentive for CVC QS and CPC QS holders to divest
so that the QS is not held by inactive individuals for extended periods
of time. CVC QS and CPC QS holders are exempt from meeting the active
participation requirements in order to receive CVC IFQ and CPC IFQ
under two circumstances. First, CVC QS and CPC QS holders are exempt if
they have held QS for less than 3 crab fishing years in order to
receive annual allocation of IFQ (Sec. 680.40(g)(2)(iii)) and less
than 4 crab fishing years in order to retain QS (Sec. 680.40(m)(5)).
Second, CVC QS and CPC QS holders are exempt if they have at least 150
fishing days of sea time as part of a harvesting crew in any U.S.
commercial fishery and was either an initial recipient of QS or
participated as crew in at least one crab delivery in a crab fishery in
any 3 of the 5 crab fishing years prior to the CR Program
implementation (Sec. 680.41(c)(1)(vii)(B)).
In summary, and unless exempt from one of the requirements
described in the preceding paragraph, if a CVC QS or CPC QS holder
fails to satisfy the participation requirements for 3 consecutive crab
fishing years, NMFS will send that individual a notice of withholding
and will not issue IFQ for the subsequent crab fishing year (Sec.
680.40(g)(3)(i)). If a CVC QS or CPC QS holder fails to satisfy the
[[Page 16513]]
participation requirements for 4 consecutive crab fishing years and
does not divest their CVC QS or CPC QS, NMFS will revoke the QS (Sec.
680.40(m)(4)). CVC QS and CPC QS holders are permitted to lease their
IFQ and join cooperatives; however, CVC QS and CPC QS holders must meet
the participation requirements in order to receive IFQ and retain QS
(Sec. 680.40(m)). Regulations specifying eligibility to receive CVC or
CPC QS or IFQ by transfer at Sec. 680.41(c)(2)(ii)(C) would continue
to apply and are unchanged by this proposed rule.
Annual Application Process
Annually, CVC QS and CPC QS holders must submit a timely and
complete ``Application for Annual Crab Individual Fishing Quota (IFQ)
Permit'' for allocations of IFQ for the upcoming crab fishing year.
Prior to the fishing season each year, NMFS will alert crab fishery
participants about their QS status. NMFS's notification process for CVC
QS and CPC QS holders who fail to file their IFQ applications by the
June 15 deadline or fail to meet participation requirements are
similar. NMFS will issue a Notice of C Share QS Inactivity after
reviewing the QS holder's annual crab IFQ permit application if NMFS
has determined that the QS holder has failed to meet the participation
requirements or failed to file an IFQ application by the June 15
deadline. To ensure correct issuance of IFQ and IPQ (including the
prescribed distribution of Class B IFQ derived from PQS holder
affiliations), NMFS does not process any transfers of QS and PQS from
the date applications for IFQ and IPQ are due (June 15) until issuance
of those IFQ and IPQ (Sec. 680.41(b)(1)). Therefore, for crab
fisheries that open in October, a CVC QS or CPC QS holder may not have
an opportunity to transfer their QS after they receive an official
Notice of C Share QS Inactivity.
Further information regarding the period to submit evidence of
participation for CVC QS and CPC QS holders who receive a Notice of C
share QS Inactivity and the Initial Administrative Determination (IAD)
process when submitted evidence fails to demonstrate active
participation is available for IFQ withholding under Sec. 680.40(g)(3)
and for QS revocations under Sec. 680.43. The process and timelines
for the evidentiary period remain unchanged by this proposed rule and
are explained in the following paragraphs. There are two different
deadlines within which a CVC QS and CPC QS holder may submit evidence
of participation if the holder received a notice of inactivity. A CVC
QS or CPC QS holder who receives a Notice of C Share QS Inactivity will
have 30 days to provide the information demonstrating participation as
crew in at least one crab delivery that meets the requirements when the
IFQ may be withheld. The CVC QS or CPC QS has holder has 60 days to
submit evidence of participation when the QS may be revoked. Following
the expiration of the 30- or 60-day evidentiary period, NMFS will then
send an Initial Administrative Determination (IAD) to the CVC QS or CPC
QS holder if NMFS determines that the submitted evidence fails to
demonstrate active participation as crew in at least one crab delivery
or if the additional information or evidence is not provided within the
time period specified. The IAD will explain the basis for the
withholding of IFQ or for the revocation of QS determination.
A CVC QS or CPC QS holder who receives an IAD may appeal under the
procedures set forth at 15 CFR part 906. To ensure that access to an
annual allocation is not lost should a QS holder prevail on appeal of
the IAD, NMFS holds in reserve the amount of IFQ in dispute until final
agency action on the IAD. In some instances, final agency action is
reached before NMFS issues IFQ for the upcoming crab fishing year,
allowing NMFS to either issue the IFQ to the successful appellant or
return the IFQ to the general pool for distribution if the IAD was not
appealed or the appellant was unsuccessful in the appeal. However, in
instances where a final agency action is not reached before NMFS issues
IFQ for the upcoming crab fishing year, NMFS must continue to hold the
disputed IFQ in reserve due to being unable to recalculate and
redistribute pounds of IFQ after the crab season opens. Therefore, if
an appeals process continues after issuances of IFQ and the CVC QS or
CPC QS holder is not able to provide appropriate evidence to their
case, this IFQ could be held in reserve and left unharvested for that
year. However, if a CVC QS or CPC QS holder is issued a Notice of C
Share QS Inactivity for the withholding of IFQ or revocation of QS,
they have no evidence to provide, and their appeal is resolved prior to
the issuance of IFQ, those pounds of crab may be able to be
redistributed to the other CVC QS and CPC QS holders.
To ensure correct issuance of IFQ and IPQ (including the prescribed
distribution of Class B IFQ derived from PQS holder affiliations), NMFS
does not process any transfers of QS and PQS from the date applications
for IFQ and IPQ are due (June 15) until issuance of those IFQ and IPQ
(Sec. 680.41(b)(1)). Therefore, for crab fisheries that open in
October, a CVC QS or CPC QS holder may not have an opportunity to
transfer their QS after they receive an official Notice of C Share QS
Inactivity.
IPQ Use Caps and Custom Processing Arrangements
When the Council recommended the CR Program, it expressed concern
about the potential for excessive consolidation of QS and PQS, in which
too few persons control all of the QS or PQS and the resulting annual
IFQ and IPQ. The Council determined that excessive consolidation could
have adverse effects on crab markets, price setting negotiations
between harvesters and processors, employment opportunities for
harvesting and processing crew, tax revenue to communities in which
crab are landed, and other factors considered and described in the
Program EIS. To address these concerns, the CR Program limits the
amount of QS that a person can hold (i.e., own), the amount of IFQ that
a person can use, and the amount of IFQ that can be used onboard a
vessel. Similarly, the CR Program limits the amount of PQS that a
person can hold, the amount of IPQ that a person can use (i.e., the
amount of crab they can process), and the amount of IPQ that can be
processed and custom processed at a given facility. Collectively, these
limits are commonly referred to as use caps.
There are two use caps that are the subject of this action. In most
of the crab fisheries (i.e., EAG, WAG, BSS, WAI, and BBR), Sec.
680.42(b)(1) limits a person to hold no more than 30 percent of the PQS
initially issued in the fishery, and to use no more than the amount of
IPQ resulting from 30 percent of the initially issued PQS in a given
fishery. Four crab fisheries do not have PQS use caps. There is a
limited use cap exemption for persons receiving more than 30 percent of
the initially issued PQS. Exceeding this cap is prohibited under Sec.
680.7(a)(7), which prohibits an IPQ holder from using more IPQ than the
maximum amount of IPQ that may be held by that person. Only two PQS
holders in the EAG, WAG, BSS, WAI, and BBR crab fisheries currently
have holdings greater than 30 percent of the initially issued PQS based
on their initial issuance (see Section 3.3.1.2 of the Analysis). With
the exception of these PQS holders, no person may use, i.e., process,
an amount of EAG, WAG, BSS, WAI, or BBR IPQ greater than an amount
resulting from 30 percent of the initially issued PQS for that crab
fishery. The rationale for the IPQ use caps is further described in the
Program EIS and the final rule implementing the
[[Page 16514]]
CR Program (70 FR 10174, March 2, 2005).
The CR Program is also designed to keep a person from evading the
PQS ownership and IPQ use caps through corporate affiliations or other
legal relationships. Section 680.42(b)(3)(iv) provides that IPQ use by
an entity (other than a CDQ group) is calculated by summing the total
amount of IPQ held by that entity and any of its affiliates.
``Affiliation'' is defined in Sec. 680.2 to mean a relationship
between two or more entities, where one entity directly or indirectly
owns or controls 10 percent or more of the other entity. Additional
elements of the definition of ``affiliation'' are described in Sec.
680.2.
Under Sec. 680.7(a)(7), in addition to the IPQ crab held by the
owner of a processing facility, any IPQ crab that is custom processed
at a facility an IPQ holder owns will also be applied against the IPQ
use cap of the facility owner. For the purposes of the regulation, an
ownership interest in the facility is attributed to all IPQ holders who
have a 10 percent or greater direct or indirect ownership interest in
the facility. A custom processing arrangement exists when an IPQ holder
has a contract with the owners of a processing facility to have their
crab processed at that facility and the IPQ holder does not have an
ownership interest in that processing facility or is otherwise
affiliated with the owners of that processing facility. In custom
processing arrangements, the IPQ holder contracts with a processing
facility operator to have the IPQ crab processed according to that IPQ
holder's specifications. Custom processing arrangements commonly occur
when an IPQ holder does not have an ownership interest in a shoreside
processing facility in that region or cannot economically operate a
stationary floating crab processor. Thus, custom processing ensures CR
Program crab can be processed even when the IPQ holder is remote and
unable to process their own IPQ.
Although custom processing would typically be counted in
calculating whether an IPQ holder has exceeded a use cap, there are
several exemptions for IPQ crab processed under a custom processing
arrangement. Shortly after implementation of the CR Program, the
Council submitted and NMFS approved Amendment 27 to the Crab FMP (74 FR
25449, May 28, 2009). Amendment 27 was designed to improve operational
efficiencies in crab fisheries with historically low TACs or that occur
in more remote regions by exempting certain IPQ crab processed under a
custom processing arrangement from applying against the IPQ use cap of
the owner of the facility at which IPQ crab are custom processed. For
ease of reference, this preamble refers to this exemption as a ``custom
processing arrangement exemption.''
NMFS refers the reader to the preamble to the final rule
implementing Amendment 27 to the Crab FMP for additional information
regarding the rationale for custom processing arrangement exemptions in
specific BSAI crab fisheries (74 FR 25449, May 28, 2009). Additionally,
Amendment 47 added EBT and WBT IPQ crab to the custom processing
arrangement exemption, allowing a facility to process more crab without
triggering the IPQ use cap (81 FR 92697, December 20, 2016). This
exemption was necessary to allow all of the EBT and WBT Class A IFQ
crab to be processed at facilities currently processing EBT and WBT
crab to prevent potential loss of benefits due to forgone crab
harvests.
Section 680.42(b)(7) describes the three requirements that must be
met for the custom processing arrangement exemption to apply. First,
the custom processing arrangement exemption applies to IPQ issued for
BSS with a North Region designation, EAG, EBT, PIK, SMB, WAG processed
west of 174[deg] W, and WAI or WBT. As described later in this
preamble, the custom processing arrangement exemption does not apply to
custom processing arrangements to IPQ issued for: BSS with a South
region designation; WAG processed east of 174[deg] W; or BBR.
Second, the custom processing arrangement exemption applies only
when there is no affiliation between the person whose IPQ crab is
processed at that facility and the IPQ holders who own that facility.
As noted earlier, ``affiliation'' is defined at Sec. 680.2 as a
relationship between two or more entities where one directly or
indirectly owns or controls 10 percent or more of the other entity.
Under Sec. 680.42(b)(7)(i), NMFS does not count IPQ crab that are
custom processed at a facility as IPQ crab ``used'' by the owner of
that facility when the person whose IPQ crab is being custom processed
is not affiliated with an IPQ holder with 10 percent or greater direct
or indirect interest in that facility. In such a case, NMFS credits a
person who holds IPQ and who owns the processing facility only with the
amount of IPQ crab held by that person, or any affiliates of that
person, when calculating IPQ use caps.
In summary, these regulations allow processing facility owners who
also hold IPQ to use their facility, or facilities, to establish custom
processing arrangements with other IPQ holders to process more crab
without exceeding IPQ use caps. This increases the amount of crab
available for processing at the facility and provides a more
economically viable processing operation. These regulations allow more
than 30 percent of the IPQ for these crab fisheries (i.e., BSS with a
North Region designation, EAG, EBT, PIK, SMB, WAG processed west of
174[deg] W, and WAI or WBT) to be processed at a facility when the
person whose IPQ crab is being processed is not affiliated with an IPQ
holder with 10 percent or greater direct or indirect interest in that
facility (Sec. 680.42(b)(7)).
Third, a custom processing arrangement exemption applies if the
facility at which the IPQ crab are custom processed meets location
requirements specified at Sec. 680.42(b)(7)(ii)(B). Namely, the
facility must be located within the boundaries as established by the
State of Alaska of a home rule, first class, or second class city in
Alaska in existence on the effective date of regulations implementing
Amendment 27 (June 29, 2009). Additionally, the facility must be either
(1) a shoreside crab processor or (2) a stationary floating crab
processor that is located within a harbor and moored at a dock, docking
facility, or other permanent mooring buoy, except for if the stationary
floating processor is located within the boundaries of the city of
Atka. Additional information on the location requirements for these
facilities is found in the preamble to the final rule implementing
Amendment 27 (74 FR 25449, May 28, 2009).
Finally, there is a prohibition against corporate entities owning a
processing facility, if they are not linked through common ownership to
a corporation holding IPQ, from processing more than 30 percent of the
IPQ crab at the facility. Section 680.7(a)(8) specifically prohibits a
shoreside crab processor or a stationary floating crab processor from
receiving more than 30 percent of the IPQ issued for a particular crab
fishery. Although this regulation was intended to foreclose an IPQ
holder from excluding custom-processed crab from its 30 percent use cap
calculation by creative corporate structuring, Amendment 27 exempted
custom-processed IPQ crab from the exempt crab fisheries under Sec.
680.42(b)(7)(ii)(A).
Regulations implementing Amendment 27 also created a custom
processing exemption for IPQ crab subject to ROFR provisions (Sec.
680.42(b)(7)(ii)(C) and section 3.2.5 of the Analysis). This custom
processing exemption applies to IPQ crab from any of the crab fisheries
and is triggered when the IPQ crab is derived from PQS that is subject
to a ROFR, is transferred
[[Page 16515]]
to another person who is not the initial recipient of the PQS, and who
is located within the boundaries of the ECC for which the PQS is, or
was, designated in the ROFR.
Facility Use Cap
In addition to exempting custom processing from counting towards
the IPQ use caps, Amendment 27 also prohibited a person from processing
more than 60 percent of the IPQ issued for the WAI or EAG crab
fisheries in a crab fishing year at a single processing facility east
of 174[deg] W. This provision applies to all IPQ crab processed at a
shoreside crab processor or stationary floating crab processor, and
does not exempt IPQ crab that are delivered under a custom processing
arrangement from IPQ use cap calculations. This provision was intended
to limit the potential consolidation of IPQ ownership that could occur
under the custom processing exemptions and to prevent excessive
consolidation of the number of processors available to harvesters, a
scenario that is more likely in these fisheries compared to the other
fisheries with custom processing exemptions given their historically
relatively small TACs compared to other crab fisheries.
Amendment 54 and Need for Action
Amendment 54 and this proposed rule are intended to provide CVC QS
and CPC QS holders greater flexibility in meeting participation
requirements and more clarity as to what those requirements are.
Amendment 54 would modify participation requirements for all CVC QS and
CPC QS holders by instituting the following: (1) restarting the 3- and
4-year rolling timeframes for meeting active participation requirements
for all CVC QS and CPC QS holders, (2) authorizing NMFS to reissue QS
that was revoked between July 1, 2019 and the effective date of a final
rule implementing Amendment 54, (3) standardizing and expanding
participation requirements by allowing all CVC QS and CPC QS holders--
both initial recipients and new entrants--to participate in 30 days of
fishing in any commercial fishery off Alaska including crew on a tender
vessel, (4) clarifying that the requirement to participate as crew in
at least one crab delivery also includes participating in the fishing
trip that results in a crab landing, and (5) clarifying the exemption
for CVC QS or CPC QS holders who hold QS exclusively in closed crab
fisheries applies to more than just a single closed crab fishery. The
purpose of Amendment 54 and the proposed rule is to provide CVC QS and
CPC QS holders greater flexibility in maintaining and meeting active
participation requirements for the annual issuance of IFQ and the
retention of QS due to low crab abundance and reduced crew
opportunities. Since 2020, there have been limited opportunities for
crew to participate actively in the crab fisheries because of low crab
abundance and because of the impacts of the COVID-19 pandemic.
On July 15, 2022, NMFS issued an emergency rule (87 FR 42390) to
provide CVC QS and CPC QS holders 1 additional year to demonstrate
active participation in any crab fishery for receiving IFQ or
maintaining CVC QS or CPC QS, regardless of participation status in the
preceding 4 years. At the same time the Council requested that
emergency action, the Council also initiated an analysis of
alternatives for changes to CVC QS and CPC QS participation
requirements to address the reduced crew opportunities due to the
COVID-19 pandemic and unforeseen decline in abundance of crab in the
BSS fishery.
As described in section 3.3.1 of the Analysis prepared for
Amendment 54, the crab fisheries are currently in a state of flux with
historical and recent closures continuing for a number of crab
fisheries that have been declared overfished or in the process of
rebuilding (Pribilof Islands blue king crab, SMB, and BSS) and are
experiencing variable stock health dynamics impacted by environmental
change (e.g., BBR, WBT, EBT, and BSS). Only two crab fisheries are
considered unaffected by recent declines in abundance (e.g., WAG and
EAG).
The Council and NMFS established CVC QS and CPC QS, which are
transferrable with participation requirements, as a mechanism to keep a
portion of the crab QS in the hands of active fishery participants and
provide opportunities for new entrants into the fishery. In developing
Amendment 54, the Council recognized that some fishery participants
struggled to maintain active participation during the COVID-19 pandemic
and recent closures of crab fisheries due to low abundance, but the
Council wanted to retain an active participation requirement. This
action provides additional flexibility to existing CVC QS and CPC QS
and continues to ensure that CVC QS and CPC QS is held and the
associated IFQ is used by active fishery participants.
The Council recommended and NMFS supports revisions to the active
participation requirements due to the variability in crab stock
abundance to allow CVC QS and CPC QS holders greater flexibility in
meeting participation requirements for crab fisheries in order to
receive annual allocation of IFQ and retention of QS, while clarifying
the active or ``at-sea'' participation requirement. The Council
recommended continued support for designating CVC QS and CPC QS for
active participants in the crab fishery and encouraged those who are no
longer active in the crab fishery to divest their CVC QS or CPC QS to
maintain opportunity for new entrants to obtain QS. Re-implementation
of the active participation requirements would provide a new
opportunity for CVC QS and CPC QS holders to demonstrate active
participation before any QS holder would have their QS revoked.
Furthermore, this proposed rule would revise CVC QS and CPC QS holder
participation requirements so that the requirements are the same for
both initial recipients and new entrants.
Amendment 55 and Need for Action
Amendment 55 and this proposed rule are intended to improve crab
processor efficiency by (1) exempting custom processing activity for
the remaining three crab fisheries from processor use caps, and (2)
removing the facility use cap. Amendment 55 would exempt custom
processing of BSS IPQ with a south region designation, BBR IPQ, and WAG
IPQ processed east of 174[deg] W from being counted against a processor
IPQ use cap. By exempting custom processing in these three crab
fisheries, this action would align the application of the IPQ use caps
across all crab fisheries. Further, Amendment 55 would remove the CR
Program processor facility use cap applicable to the EAG and WAI
fisheries. The EAG and WAI crab fisheries are the only two crab
fisheries subject to a cap on the amount of IPQ that can be used as a
facility (as distinguished from the IPQ use caps, which are specific to
the IPQ holder). Processors in all crab fisheries would continue to be
subject to the PQS use caps specified at Sec. 680.42(b)(1).
Amendment 55 and this proposed rule are intended to provide
additional flexibility for IPQ holders, processing facilities, and
harvesters that participate in the affected crab fisheries. Many IPQ
holders do not own a processing facility and rely on custom processing
agreements with plants to process crab. Exempting custom processing
from counting towards the cap on the amount of crab that an IPQ holder
can process provides IPQ holders with a potentially larger market
(i.e., additional crab processing facilities) to custom process their
crab.
[[Page 16516]]
The Council and NMFS recognize that the existing crab processing
facility and IPQ use caps were designed and implemented when crab TACs
in all crab fisheries were at a much higher level than recent years.
Without the proposed action, four unaffiliated crab processing
facilities would need to operate to fully process the crab fisheries.
This is due to share matching requirements in order to custom process
the crab in the BBR, south designated BSS, and WAG east of 174[deg] W.
Given the high costs of operating a processing facility in the BSAI,
this is not economically viable when very low amounts of crab are
available. Amendment 55 would allow for more custom processing
opportunities but would also benefit the processing sector overall by
not forcing more facilities than are needed to process relatively small
TACs.
Amendment 55 would also provide an exemption to a regulatory
constraint, which is expected to benefit participants in the BBR and
WAG crab fisheries by expanding opportunities to fully harvest
allocated QS. The proposed action is expected to improve processing
efficiency in the fisheries. Additionally, the proposed action is
expected to minimize processing costs and avoid unnecessary duplication
by simplifying regulations and reducing resources needed to monitor and
enforce the use caps. The proposed action would assist CR Program
harvesters by ensuring that all available A share IFQ harvested crab
have an opportunity to be processed rather than leaving a portion of
the A share IFQ stranded if there are not enough processors operating,
which could also benefit communities with processing facilities.
Amendment 55 does not impact B share IFQ due to not having share
matching requirements and can deliver to any registered crab receiver
(RCR).
The 30 percent PQS holding cap specified in regulations at Sec.
680.42(b)(1)(i) would continue to apply to all crab fishery processors
and is not modified by the proposed rule. NMFS expects that additional
processors would enter the crab fisheries in years where the crab TACs
are sufficiently high to make processing activity economically viable.
This Proposed Rule
This proposed rule would make several changes to regulations at 50
CFR part 680 to implement Amendments 54 and 55. Specifically, the
following proposed changes are described in the sections below: (1)
restart active participation requirements and reissue QS that NMFS
revoked between July 1, 2019 until the final rule implementing
Amendment 54 is implemented; (2) standardize participation requirements
for all CVC QS and CPC QS holders, both initial issues and new
entrants, and expand the 30-day participation requirement to include
serving as crew on a tender vessel; (3) clarify crew participation
during at least one fishing trip; (4) adjust exemptions for CVC QS and
CPC QS holders with QS exclusively in closed crab fisheries; (5) expand
exemptions for custom processing from processor use caps; and (6)
remove the facility use cap.
Restart Active Participation Requirements and Reissue Revoked QS
This proposed rule revises Sec. 680.40 to modify participation
requirements that a CVC QS or CPC QS holder must satisfy to be eligible
to receive an annual allocation of IFQ and retain QS. First, under
proposed regulations at Sec. 680.40(g)(2) and (m)(1), the timing for
when the active participation requirement would apply is restarted. The
consecutive 3- and 4-year rolling requirement would apply starting on
the date the final rule implementing Amendment 54 goes into effect. A
CVC QS or CPC QS holder would then have 3 years to demonstrate
participation in order to receive their allocation of IFQ and 4 years
to demonstrate participation to retain QS and avoid QS revocation
(Sec. 680.43).
This proposed rule adds a regulation at Sec. 680.40(m)(6) to allow
a CVC QS or CPC QS holder to request NMFS to reissue any QS that NMFS
revoked from July 1, 2019, through the date a final rule implementing
Amendment 54 goes into effect. In order to initiate reissuance of
previously revoked CVC QS or CPC QS, NMFS would add a field on the
annual application for a crab IFQ permit to be available for two
application cycles. This would provide approximately 1 year, to
encompass two application cycles (due on June 15 each year), for an
individual to request reissuance of their revoked CVC QS or CPC QS.
For example, if this action were approved, and a final rule was
effective on June 1, 2024, which is prior to the application deadline
of June 15, 2024, for the 2024/2025 crab fishing year, QS that had been
revoked between July 1, 2019, and June 1, 2024, would be reissued to
those CVC QS and CPC QS holder who applied for reissuance as part of
the annual application for crab IFQ between the application period of
June 1, 2024, through June 15, 2025. This would provide CVC QS and CPC
QS holders two annual crab IFQ application opportunities to apply for
QS reissuance. Active participation requirements would restart for the
2024/2025 crab fishing year and CVC QS and CPC QS holders would not
need to demonstrate active participation until the 2027/2028 crab
fishing year for annual issuance of IFQ and in 2028/2029 for retention
of QS. In order to receive IFQ for the 2027/2028 crab fishing year, a
CVC QS or CPC QS holder would have to satisfy the participation
requirements during the 2024/2025, 2025/2026, or 2026/2027 crab fishing
years. For retention of QS in the subsequent 2028/2029 crab fishing
year, a CVC QS or CPC QS holder would have to satisfy participation
requirements during the 2024/2025, 2025/2026, 2026/2027, or 2027/2028
crab fishing years.
Expand and Standardize Participation Requirements and Allow Tendering
This proposed rule would modify regulations at Sec. 680.40(g)(2)
and (m)(2) to remove the distinction between initial recipients and new
entrants. This proposed rule would expand and clarify participation
requirements for new entrants to match the requirements of initial
recipients where all CVC QS and CPC QS holders can satisfy the
participation requirements by either participating in at least one
fishing trip with a delivery of crab in any crab fishery or by
participating in a combination of crew activity on a fishing vessel or
tender vessel in State of Alaska or Federal commercial fisheries in
waters off Alaska for at least 30 days during the crab fishing year
immediately preceding the crab fishing year for which the CVC QS or CPC
QS holder is filing an annual application for a crab IFQ permit.
This proposed rule would also clarify the standard for meeting
participation requirements by participating in one crab delivery to
also include the fishing trip that results in a delivery of crab in any
crab fishery. This proposed rule would modify the definition of
``fishing trip'' to specify that the definition is also applicable for
purposes of participation requirements at Sec. 680.40(g) and (m).
Clarify the Closed Fishery Exemption
This proposed rule would expand the closed fishery participation
exemption for CVC QS and CPC QS holders who only hold QS in closed crab
fisheries. This exemption would apply when a CVC QS or CPC QS holder
holds only QS in one or more crab fisheries and all those crab
fisheries are closed to fishing for an entire crab fishing year. In
that situation, NMFS will exclude that crab
[[Page 16517]]
fishing year when determining if the individual has satisfied the
participation requirement for annual issuance of IFQ and revocation of
QS. An individual with CVC QS or CPC QS in multiple crab fisheries
would have to satisfy the participation requirement for any of the crab
fisheries that are open and in which they hold QS.
Remove IPQ Facility Use Cap for Eastern Aleutian Islands Golden King
Crab (EAG) and Western Aleutian Islands Red King Crab (WAI)
This proposed rule would revoke regulations at Sec. 680.7(a)(9) to
remove the cap on shoreside crab processors and stationary floating
crab processors east of 174[deg] W from processing more than 60 percent
of the IPQ issued in the EAG and WAI crab fisheries. The EAG and WAI
crab fisheries are the only two crab fisheries subject to a 60 percent
cap on the amount of IPQ that can be used at a facility. This change
would remove this restriction that is specific to only the EAG and WAI
crab fisheries and help ensure that allocated IFQ would not be stranded
if there is not more than one processing facility operating for each of
these crab fisheries.
Exempt Custom Processing From IPQ Use Caps
This proposed rule would make numerous regulatory changes to exempt
custom processing of BSS IPQ with a south-region designation, BBR IPQ,
and WAG IPQ processed east of 174[deg] W from the IPQ use caps and
would simplify regulations pertaining to facility use caps associated
with custom processing.
First, this proposed rule would revise regulations at Sec.
680.42(b) to exempt custom processed crab from the IPQ use cap.
Amendment 55 would add the BSS, BBR, and WAG crab fisheries to the list
of fisheries in which custom processing is exempt from the IPQ use cap.
This would mean that custom processing would only count toward the IPQ
use cap under rare situations involving processing outside of specific
geographic boundaries. As such, this proposed rule would remove
regulations at Sec. 680.42(b)(7) and (8), the circumstances under
which custom processing does not count in calculating IPQ use caps, and
would revise remaining regulations (included at Sec. 680.42(b)(1)
through (9) of this proposed rule) to specify how IPQ use caps shall be
calculated under the proposed action.
To simplify the application of the IPQ use cap, this proposed rule
would modify the definition of ``custom processing'' at Sec. 680.2 to
specifically define ownership interest consistent with terminology used
by in regulations governing the previous IPQ use caps exemptions at
Sec. Sec. 680.7(a)(7) and 680.42(b)(7). This proposed rule would then
insert the term ``custom processing'' at Sec. 680.42(b) to clarify
that IPQ crab that is custom processed, as that term is defined under
Sec. 680.2, in any crab fishery would no longer count towards IPQ use
caps. This proposed rule also would revise Sec. 680.7(a)(7) to add a
reference to Sec. 680.42(b) to indicate where the reader can find the
calculation of IPQ crab used for use caps.
This proposed rule would also remove paragraph Sec. 680.7(a)(8)
that prohibits using a corporate form to circumvent the IPQ use cap by
arranging custom processing. This regulation meant that IPQ crab
processed under a custom processing arrangement would not apply against
the limit on the maximum amount of IPQ crab that can be processed at a
facility in which no IPQ holder has a 10 percent or greater ownership
interest. But this proposed action would exempt custom processing in
all fisheries from counting towards the IPQ use cap if processed within
certain geographic boundaries. Thus, the prohibition at Sec.
680.7(a)(8) is no longer needed and this proposed rule would remove it.
Additionally, this proposed rule would modify Sec. 680.42(b)(1) to
specify that a person may not use IPQ in excess of the amount of IPQ
resulting from the PQS held by that person unless that person received
an initial allocation of PQS exceeding the 30 percent holding cap, is
subject to an exemption specified at Sec. 680.4(p), or is used for
custom processing at a facility within specific boundaries identified
under Amendment 27 as specified at proposed Sec.
680.42(b)(1)(ii)(C)(2).
This proposed rule would also modify Sec. 680.42(b)(2)
introductory text and subparagraph (ii) to make technical corrections
to the regulations and correctly reference the proposed custom
processing exemption.
Regulations at Sec. 680.42(b)(3) through (6) would be reorganized
for improved clarity and understanding and included in the proposed
regulations as paragraphs Sec. 680.42(b)(3) through (9). The substance
of these reorganized regulations at Sec. 680.42(b)(3) through (6) has
not been modified, but rather renumbered and edited for clarity.
Additional Regulatory Changes
This proposed rule also includes various technical edits and
corrections to the regulations to remove typographical errors and
improve their clarity.
At Sec. 680.41(j), this proposed rule would correct a
typographical error to change the word ``and'' to ``an''.
At Sec. 680.42(a)(3)(i), this proposed rule would strike the
phrase ``more than'', which is redundant of the phrase ``in excess
of'', which precedes it.
At Sec. 680.42(b)(1)(i), this proposed rule would replace the
phrase ``more than'' with the phrase ``PQS in excess of'' to make the
language consistent with similar language at Sec. 680.42(b)(1)(ii)
that applies to use of IPQ.
At Sec. 680.42(b)(2), this proposed rule would replace the phrase
``more than'' with the phrase ``IPQ in excess of'' to make the language
consistent with similar language at Sec. 680.42(a).
Classification
Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this
proposed rule is consistent with Amendments 54 and 55, other provisions
of the Magnuson-Stevens Act, and other applicable law, subject to
further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
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 the proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The factual basis for this determination is as follows: A description
of the proposed rule, why it is being considered, and the objectives
of, and legal basis for this proposed rule are contained at the
beginning of this the proposed rule in the preamble and in the summary
section of the preamble. The Magnuson-Stevens Act provides the
statutory basis for this rulemaking. No duplicative, overlapping, or
conflicting Federal rules have been identified.
The RIRs prepared for Amendments 54 and 55 contain a description of
the purpose and need for the proposed actions, the statutory authority
for the proposed actions, and a description of the alternatives,
including a description of the status quo. Entities that would be
directly regulated by this proposed rule include (1) 13 IPQ holders (2)
6 crab processing facilities (3) 160 CVC QS and CPC QS holders.
The proposed regulatory changes to implement Amendment 55 are
intended to increase operational efficiency for these entities by
removing the facility
[[Page 16518]]
use cap for IPQ and/or removing custom processing from the accounting
of IPQ caps for certain crab species when processed east of 174[deg] W.
Therefore, it is expected that the proposed action would have a
beneficial on small entities.
The proposed regulatory changes to implement Amendment 54 are
intended to respond to the recent combined impacts of the COVID-19
pandemic and the recent and substantial decline in crab abundance and
fishery closures which have substantially reduced opportunities for
crew to participate in crab fisheries. The proposed action also
addresses concerns about future diminished opportunities for crew if
crab stocks remain low. Therefore, the proposed actions are intended to
provide more flexibility (relative to status quo) for CVC QS and CPC QS
holders when there are diminished opportunities for crew positions on
crab fishery vessels. Therefore, this action is expected to benefit CVC
QS and CPC QS holders relative to the no action alternative.
The costs and benefits of the proposed action relative to the
status quo are described qualitatively and quantitatively. The RIRs
also provide information about potential indirect effects and
distributional effects of the alternatives, and a description of the
net benefits to the Nation under the preferred alternative. Therefore,
the RIRs conclude that the proposed actions would result in a net
benefit to the Nation.
The analysis was developed through the Council process from 2021
through 2023. The information presented in the analyses was developed
through the Council process, with numerous opportunities for
individuals and entities that may be affected by the proposed action to
provide input about potential economic impacts. CR participants
provided extensive input to the Council and its advisory bodies on the
anticipated impacts of the proposed action.
The proposed provisions provide flexibility to all directly
regulated entities. Therefore, no directly regulated entities are
expected to be adversely impacted by the proposed action.
The information provided above supports a determination that the
actions would not have a significant economic impact on a substantial
number of small entities. Because the proposed rule, if implemented, is
not expected to have a significant economic impact on any small
entities, an initial regulatory flexibility analysis is not required
and none has been prepared.
Collection-of-Information Requirements
This proposed rule contains a collection-of-information requirement
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). This rule revises the
existing requirements for the collection of information OMB Control
Number 0648-0514 (Alaska Region Crab Permits). Because of a concurrent
action for 0648-0514, the revision to that collection of information
for this proposed rule will be assigned a temporary control number that
will later be merged into 0648-0514.
This collection would be revised to add an option to the
Application for Annual Crab IFQ Permit for a CVC QS and CPC QS holder
to request reissuance of previously revoked CVC QS or CPC QS. This
revision does not change the number of respondents, responses, burden
hours, or burden cost for this application. The public reporting burden
for the Application for Annual Crab IFQ Permit is estimated to average
2.5 hours, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information.
Public comment is sought regarding the following: whether this
proposed collection of information is necessary for the proper
performance of the functions of the agency, including whether the
information shall have practical utility; the accuracy of the burden
estimate; ways to enhance the quality, utility, and clarity of the
information to be collected; and ways to minimize the burden of the
collection of information, including through the use of automated
collection techniques or other forms of information technology. Submit
comments on these or any other aspects of the collection of information
at https://www.reginfo.gov/public/do/PRAMain.
Notwithstanding any other provisions of the law, no person is
required to respond to, nor shall any person by subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 680
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 1, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reason 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.
0
2. Amend Sec. 680.2, by revising the definition for ``Custom
processing'', adding the definition for ``Fishing trip'', and removing
the definition for ``Fishing trip for purposes of Sec. 680.7(e)(2)''
to read as follows:
Sec. 680.2 Definitions.
* * * * *
Custom processing means processing crab in any CR fishery when the
IPQ holder does not have a 10 percent or greater direct or indirect
ownership interest in the processing facility or affiliation with the
processing facility's owners.
* * * * *
Fishing trip means, for the purposes of Sec. Sec. 680.7(e)(2),
680.40(g)(2)(i)(A), and 680.40(m)(2)(i), 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 processed or
unprocessed crab in that crab QS fishery from that vessel.
* * * * *
0
2. Amend Sec. 680.7 by:
0
a. Adding a comma after the first use of ``fishery'' in paragraph
(a)(5);
0
b. Revising paragraph (a)(7); and
0
c. Removing paragraphs (a)(8) and (9).
The addition and revision read as follows:
Sec. 680.7 Prohibitions.
(a) * * *
(7) For an IPQ holder to use more IPQ than the maximum amount of
IPQ that may be held by that person under Sec. 680.42(b).
* * * * *
0
3. Amend Sec. 680.40 by revising paragraphs (g)(2), (g)(3)
introductory text, (m)(1), (2), and (5), and adding paragraph (m)(6) to
read as follows:
Sec. 680.40 Crab quota share (QS), processor QS (PQS), individual
fishing quota (IFQ), and individual processor quota (IPQ).
* * * * *
[[Page 16519]]
(g) * * *
(2) Eligibility for CVC IFQ and CPC IFQ. For each crab fishing year
after June 30, [date 3 years after date of publication in the Federal
Register], individuals holding CVC QS or CPC QS permits must meet the
participation requirements set forth in paragraph (g)(2)(i) of this
section in order to receive CVC IFQ or CPC IFQ, unless the CVC QS
permit holder or CPC QS permit holder meets the exemption provided in
paragraph (g)(2)(ii) of this section.
(i) During one of the 3 crab fishing years preceding the crab
fishing year for which the individual is filing an annual crab IFQ
permit application, the individual has participated as crew in at
least:
(A) One fishing trip where a delivery of crab is made in any CR
fishery; or
(B) 30 days of:
(1) Fishing in a commercial fishery managed by the State of Alaska
or in a Federal commercial fishery in the EEZ off Alaska. Individuals
may combine their participation as crew in State of Alaska and Federal
commercial fisheries in waters off Alaska to meet this requirement; or
(2) On a tender vessel operating in support of a commercial fishery
managed by the State of Alaska or in a Federal commercial fishery in
the EEZ off Alaska. Individuals may combine their participation as crew
on a tender vessel in State of Alaska and Federal commercial fisheries
in waters off Alaska to meet this requirement.
(C) Individuals may combine their participation specified in
paragraphs (g)(2)(i)(B)(1) and (2) of this section to meet this
requirement.
(D) If the individual holds CVC QS or CPC QS in one or more CR
fisheries and all CR crab fisheries for which the QS holder holds QS
are closed, NMFS will exclude that crab fishing year when determining
whether the individual has satisfied the participation requirements
specified in paragraph (g)(2)(i) of this section.
(ii) All of the CVC QS or CPC QS permits held by the individual
were acquired using the eligibility criteria in Sec.
680.41(c)(1)(vii)(B) or reissued under paragraph (m)(6) of this section
and the individual has held those CVC QS or CPC QS permits for less
than 3 crab fishing years.
(3) Withholding of CVC IFQ or CPC IFQ. Beginning July 1, [date 3
years after date of publication in the Federal Register], the Regional
Administrator will withhold issuance of CVC IFQ or CPC IFQ to an
individual who has not met the participation requirements set forth in
paragraph (g)(2) of this section. The Regional Administrator will
withhold an individual's CVC IFQ or CPC IFQ in accordance with the
procedures set forth in paragraphs (g)(3)(i) and (ii) of this section.
* * * * *
(m) * * *
(1) Beginning July 1, [date 4 years after date of publication in
the Federal Register], and each crab fishing year thereafter,
individuals allocated CVC QS or CPC QS must meet the participation
requirements set forth in paragraph (m)(2) of this section in order to
retain their CVC QS or CPC QS unless the CVC QS holder or CPC QS holder
meets the exemption provided in paragraph (m)(5) of this section.
(2) During one of the 4 crab fishing years preceding the crab
fishing year for which the individual is filing an annual crab IFQ
permit application, the individual has participated as crew in at
least:
(i) One fishing trip where a delivery of crab is made in any CR
fishery; or
(ii) 30 days of:
(A) Fishing in a commercial fishery managed by the State of Alaska
or in a Federal commercial fishery in the EEZ off Alaska. Individuals
may combine their participation as crew in State and Federal commercial
fisheries to meet this requirement; or
(B) On a tender vessel operating in support of a commercial fishery
managed by the State of Alaska or in a Federal commercial fishery in
the EEZ off Alaska. Individuals may combine their participation as crew
on a tender vessel in State and Federal commercial fisheries to meet
this requirement.
(iii) Individuals may combine participation specified in paragraph
(m)(2)(ii)(A) and paragraph (m)(2)(ii)(B) of this section to meet this
requirement.
(iv) If the individual holds CVC QS or CPC QS in one or more CR
crab fisheries and all CR crab fisheries for which the QS holder holds
QS are closed, NMFS will exclude that crab fishing year when
determining whether the individual has satisfied the participation
requirement specified in paragraph (m)(2) of this section.
* * * * *
(5) All of the CVC QS or CPC QS permits held by the individual were
acquired using the eligibility criteria in Sec. 680.41(c)(1)(vii)(B)
or reissued under paragraph (m)(6) of this section, and the person has
held those CVC QS or CPC QS permits for less than 4 crab fishing years.
(6) For CVC QS or CPC QS revoked by NMFS under regulations
paragraph (m)(2) of this section from July 1, 2019, through [effective
date of final rule], an individual may apply for reissuance of QS with
the individual's annual crab IFQ permit application from [effective
date of final rule] through June 15, [1-year after publication of final
rule].
* * * * *
Sec. 680.41 [Amended]
0
4. Amend Sec. 680.41 by removing the word ``and'' and adding in its
place the word ``an'' in the paragraph heading for paragraph (j).
0
5. Amend Sec. 680.42 by:
0
a. Removing the phrase ``more than'' in paragraph (a)(3)(i);
0
b. Removing the phrase ``more than'' and adding in its place the phrase
``PQS in excess of'' in paragraph (b)(1)(i);
0
c. Revising paragraphs (b)(1)(ii)(A) and (B), adding paragraph
(b)(1)(ii)(C), and revising paragraphs (b)(2) introductory text,
(b)(2)(ii), and (b)(3);
0
d. Redesignating paragraphs (b)(4) through (6) as paragraphs (b)(7)
through (9);
0
e. Adding new paragraphs (b)(4) through (6);
0
f. Removing the reference to ``(b)(4)(iv)'' and adding in its place
``(b)(7)(iv)'' in newly redesignated paragraph (b)(7); and
0
g. Removing references to ``(b)(4)'' and adding in their place
``(b)(7)'' in two instances in newly redesignated paragraphs (b)(7) and
(8).
The revisions and additions read as follows:
Sec. 680.42 Limitations on use of QS, PQS, IFQ, and IPQ.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(A) Derived from PQS that was received by that person in the
initial allocation of PQS for that crab QS fishery; or
(B) Subject to an exemption for that IPQ pursuant to Sec.
680.4(p); or
(C) Used for custom processing at a facility that is:
(1) Any shoreside crab processor located within the boundaries of a
home rule, first class, or second class city in the State of Alaska in
existence on June 29, 2009; or
(2) Any stationary floating crab processor that is:
(i) Located within the boundaries of a home rule, first class, or
second class city in the State of Alaska in existence on June 29, 2009;
(ii) Moored at a dock, docking facility, or at a permanent mooring
buoy, unless that stationary floating crab processor is located within
the boundaries of the city of Atka in which case that stationary
floating crab processor is not required to
[[Page 16520]]
be moored at a dock, docking facility, or at a permanent mooring buoy;
and
(iii) Located within a harbor, unless that stationary floating crab
processor is located within the boundaries of the city of Atka on June
29, 2009, in which case that stationary floating crab processor is not
required to be located within a harbor.
(2) A person may not use IPQ in excess of 60 percent of the IPQ
issued in the BSS crab QS fishery with a North region designation
during a crab fishing year. Except that a person who:
* * * * *
(ii) Has a 10 percent or greater direct or indirect ownership
interest in the shoreside crab processor or stationary floating crab
processor where that IPQ crab is processed will not be considered to
use any IPQ in the BSS crab QS fishery with a North region designation
if that IPQ is custom processed at a facility consistent with paragraph
(b)(1)(ii)(C) of this section.
(3) A non-individual entity holding PQS will be required to
provide, on an annual basis, a list of persons with an ownership
interest in the non-individual entity. This ownership list shall be
provided to the individual level, will include the percentage of
ownership held by each owner, and must be submitted annually with the
complete application for a crab IFQ/IPQ permit.
(4) A person will be considered to be a holder of PQS for purposes
of applying the PQS use caps in this paragraph if that person:
(i) Is the sole proprietor of an entity that holds PQS; or
(ii) Is not a CDQ group and directly or indirectly owns a 10
percent or greater interest in an entity that holds PQS.
(5) A person that is not a CDQ group and holds PQS is limited to a
PQS use cap that is calculated based on the sum of all PQS held by that
PQS holder and all PQS held by any affiliate of the PQS holder. A
person that is not a CDQ group and holds IPQ is limited to an IPQ use
cap that is calculated based on the sum of all IPQ held by that IPQ
holder and all IPQ held by any affiliate of the IPQ holder.
(6) A CDQ group that holds PQS is limited to a PQS use cap that is
calculated based on the sum of all PQS held, individually or
collectively, by that CDQ group. A CDQ group that holds IPQ is limited
to an IPQ use cap that is calculated based on the sum of all IPQ held,
individually or collectively, by that CDQ group.
* * * * *
0
6. In Sec. 680.43, revise paragraph (a) to read as follows:
Sec. 680.43 Revocation of CVC and CPC QS.
(a) Beginning July 1, [date 4 years after date of publication in
the Federal Register], the Regional Administrator will revoke all CVC
QS and CPC QS held by an individual who has not met the participation
requirements set forth in Sec. 680.40(m). The Regional Administrator
will revoke an individual's CVC QS or CPC QS in accordance with the
procedures set forth in this section.
* * * * *
[FR Doc. 2024-04733 Filed 3-6-24; 8:45 am]
BILLING CODE 3510-22-P