[Federal Register Volume 76, Number 214 (Friday, November 4, 2011)]
[Rules and Regulations]
[Pages 68354-68358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28665]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 100819383-1652-02]
RIN 0648-BA18
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Management Area; Limited Access Privilege Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues regulations implementing Amendment 93 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP). These regulations amend the Bering Sea
and Aleutian Islands Amendment 80 Program to modify the criteria for
forming and participating in a harvesting cooperative. This action is
necessary to encourage greater participation in harvesting
cooperatives, which enable members to more efficiently target species,
avoid areas with undesirable bycatch, and improve the quality of
products produced. This action is intended to promote the goals and
objectives of the Magnuson-Stevens Fishery Conservation and Management
Act, the FMP, and other applicable law.
DATES: This final rule is effective on December 5, 2011, except for the
provisions at Sec. 679.91(h)(3)(ii) and (iii), which are effective
November 4, 2011.
ADDRESSES: Electronic copies of Amendment 93, the final Environmental
Assessment (EA) and Regulatory Impact Review (RIR); Initial Regulatory
Flexibility Analysis (IRFA); and Final Regulatory Flexibility Analysis
(FRFA) prepared for this action are available from the NMFS Alaska
Region Web site at http://alaskafisheries.noaa.gov. The proposed rule
to implement Amendment 93 also may be accessed at this Web site.
FOR FURTHER INFORMATION CONTACT: Gwen Herrewig, (907) 586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive
economic zone off Alaska are managed under the FMP. The FMP was
prepared by the North Pacific Fishery Management Council (Council)
under the Magnuson-Stevens Fishery Conservation and Management Act.
Amendment 80 to the FMP implemented the Amendment 80 Program.
Regulations implementing Amendment 80 were published on September 14,
2007 (72 FR 52668). These regulations are located at 50 CFR part 679.
Background
The Amendment 80 Program is commonly known as a limited access
privilege program. Eligible fishery participants may receive exclusive
access to specific fishery resources if certain conditions are met.
Under the Amendment 80 Program, NMFS issues a quota share (QS) permit
to a person holding the catch history of an original qualifying non-
American Fisheries Act (AFA) trawl catcher/processor that met specific
criteria designated by Congress under the Capacity Reduction Program
(CRP) (Pub. L. 108-447). NMFS determined that 28 vessels met the
criteria specified in the CRP. These vessels comprise the originally
qualifying Amendment 80 vessels. NMFS determined the amount of QS
issued based on the catch history of six Amendment 80 species (Atka
mackerel, Aleutian Islands Pacific ocean perch, flathead sole, Pacific
cod, rock sole, and yellowfin sole) in the Bering Sea and Aleutian
Islands Management Area, from 1998 through 2004, derived from the 28
originally qualifying non-AFA trawl catcher/processors.
Generally, the Amendment 80 Program is intended to facilitate the
formation of fishing cooperatives, which have been shown to improve
fishery management. Amendment 80 participants who join a fishing
cooperative receive cooperative quota, which are exclusive harvest
privileges for a portion of these fishery resources.
[[Page 68355]]
The allocation of CQ allows vessel operators to make operational
choices to improve fishing practices and reduce discards of fish,
because the incentives to maximize catch rates to capture a share of
the available catch are removed. Cooperatives fishing under an
exclusive harvest privilege can tailor their operations to more
efficiently target species, avoid areas with undesirable bycatch, and
improve the quality of products produced. Participants in the limited
access fishery do not receive an exclusive harvest allocation, and may
have little incentive to coordinate harvest strategies if they perceive
a benefit by competing with other participants in a race for fish. A
person who chooses to join a cooperative must designate the catch
derived from his QS to the cooperative, the specific vessels that will
be fishing for that cooperative, and the License Limitation Program
(LLP) licenses assigned to each designated vessel.
Amendment 93 results in two changes to the Amendment 80 Program.
First, it reduces the minimum number of persons and licenses required
to form a harvesting cooperative. Previously, the Amendment 80 program
required that a minimum of three unique persons and nine QS permits
must be assigned to a cooperative. Reducing the number of unique
persons and number of QS permits could provide additional opportunities
for QS holders to establish cooperative relationships that could reduce
the number of participants engaged in the race for fish. The Council
and NMFS expect that relaxing the Amendment 80 cooperative formation
standards by reducing the number of QS permits that must be assigned
and the number of unique vessel owners required will (1) provide
additional opportunities to QS holders to form cooperatives because
more relationships are possible; (2) diminish the negotiating leverage
of vessel owners who may be necessary to meet the threshold
requirements under more stringent cooperative formation standards; (3)
reduce the potential risk of any one company being unable to negotiate
settlement and be able to fish only in the limited access fishery; and
(4) reduce the incentive for members of a cooperative to attempt to
create conditions that are unfavorable for certain fishery participants
to form a cooperative.
The second revision under Amendment 93 requires that a person
assign all QS permits either to one or more cooperatives or to the
limited access fishery, but not to both during the same calendar year.
This revision is needed to reduce the incentive for a cooperative
member to prevent another person from forming a cooperative in order to
force them into a race for fish in the limited access fishery.
Excluding a person from cooperative membership could benefit a
cooperative, or specific members of a cooperative who choose to
participate in both a cooperative and the limited access fishery. For
example, if a cooperative member who holds multiple QS permits and
vessels can assign one vessel and QS permit to the limited access
fishery and another vessel and QS permit to a cooperative, that member
could harvest more fish in the limited access fishery than would be
derived from their QS if it were assigned to a cooperative. A person
participating in both a cooperative and the limited access fishery has
an incentive to exclude participants in the limited access fishery from
joining a cooperative or creating an additional cooperative. For
example, a person participating in a cooperative and the limited access
fishery could seek to exclude a person from fishing in a cooperative if
the person to be excluded was unlikely to be able to join another
cooperative. Under that scenario, the person excluded from a
cooperative could be forced into the Amendment 80 limited access
fishery. If the person participating in the cooperative also assigned a
vessel to the Amendment 80 limited access fishery that was capable of
effectively competing against the other Amendment 80 limited access
fishery participants, that person could maximize their catch in a race
for fish. Under that scenario, a person with participation in both an
Amendment 80 cooperative and the limited access fishery would have
little incentive to allow a person to join a cooperative because they
would lose access to fish that would otherwise be available in the
Amendment 80 limited access fishery.
The revision under Amendment 93 requiring a person to assign all QS
permits either to a cooperative or to the limited access fishery, but
not both, is not applicable until the first fishing year 2 years after
the final rule effective date. Because this final rule is effective in
2011, this requirement does not apply until the 2014 fishing year and
QS holders must assign all QS permits and vessels to one or more
cooperatives or to the limited access fishery by the Amendment 80
annual cooperative application deadline of November 1, 2013. The 2-year
delay allows vessel owners time to coordinate with other participants
in the fishery and determine if they will assign all of their QS
permits to either one or more cooperatives, or the limited access
fishery. NMFS will not allow owners to assign QS permits or vessels to
one or more cooperatives and the Amendment 80 limited access fishery on
the annual cooperative applications submitted to NMFS by the November
1, 2013 deadline.
NMFS published a notice of availability for Amendment 93 on July
28, 2011 (76 FR 45219). The public comment period on Amendment 93 ended
on September 26, 2011. On August 10, 2011, NMFS published a proposed
rule to implement Amendment 93 (76 FR 49417). The public comment period
for the proposed rule ended on September 9, 2011. Additional
information on this action was provided in the preamble of the proposed
rule and is not repeated here.
NMFS received three comments on Amendment 93 and the proposed rule
during the public comment period for the proposed rule. One public
comment did not directly address Amendment 93 or the proposed rule, but
was a general comment related to the Federal Government's management of
marine resources and provided a general criticism of fishery
management. The other two comments were in support of this action. All
comments are addressed in the Response to Comment section for this
rule. The Secretary of Commerce approved Amendment 93 on October 25,
2011. No modifications were made to the proposed rule.
Response to Comments
Comment 1: The commenter raises general concerns about NMFS'
management of fisheries, asserting that fishery policies have not
benefited American citizens. The commenter also believes that NMFS
should not be allowed to manage fisheries.
Response: This comment is not specifically related to the proposed
rule. The comment recommends broad changes to fisheries management and
provides opinions of the Federal Government's general management of
marine resources that are outside the scope of this action. The
commenter did not raise new relevant issues or concerns that have not
been addressed in the preamble to the proposed rule or the EA/RIR/FRFA
prepared to support this action.
Comment 2: The commenter strongly supports Amendment 93 and the
proposed regulations. The commenter strongly urges NMFS to implement
the action at the earliest possible time, preferably in time to be
effective for the 2012 fishing year, in order to maximize the benefits
of this amendment.
Response: NMFS agrees that this action is beneficial to
participants in the
[[Page 68356]]
Amendment 80 sector and should be implemented as soon as possible.
Comment 3: The commenter supports Amendment 93 and continues to
support the objective to promote full participation of Amendment 80
vessels in cooperatives to facilitate optimal harvest of Amendment 80
QS through intra and inter-sector trades throughout the year. The
commenter anticipates that Amendment 93 will result in open and
productive interactions between all cooperatives within the Amendment
80 sector, but expressed concern about cooperatives that may be
unwilling to transfer unharvested allocations, which could result in
harvest of an Amendment 80 species that is less than the TAC
established for that species. The commenter is concerned that
unharvested cooperative allocations of Amendment 80 species could
result in the Council reducing the TAC of Amendment 80 species because
it assumes the unharvested QS indicates that TACs were set too high.
For this reason, the commenter may seek changes in the allocation
system in the future if some cooperatives are unwilling to transfer
unused QS.
Response: NMFS agrees that Amendment 93 promotes full participation
of Amendment 80 vessels in cooperatives and expects productive
interactions between Amendment 80 cooperatives. The commenter may
approach the Council in the future with suggestions for changes to the
Amendment 80 program.
Changes From the Proposed Rule
NMFS did not make any changes to the proposed rule published on
August 10, 2011 (76 FR 49417).
Classification
The Administrator, Alaska Region, NMFS, determined that FMP
Amendment 93 is necessary for the conservation and management of the
BSAI groundfish fishery and that it is consistent with the MSA and
other applicable laws.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for
Fisheries, NOAA, finds good cause to waive the 30-day delay in
effectiveness for 50 CFR 679.91(h)(3)(ii) and (iii) as amended in this
rule. The 30-day delay in effectiveness of these sections is
impracticable and contrary to the public interest. Amendment 93 reduces
the number of unique persons and number of QS permits required to form
a cooperative in the Amendment 80 Program. Reducing the number of
unique persons and number of QS permits can provide additional
opportunities for QS holders to establish cooperative relationships
that could reduce the number of participants engaged in the race for
fish. The annual Amendment 80 Cooperative Quota Permit Application
deadline is November 1 of each year and NMFS has informed Amendment 80
participants that they may submit cooperative applications under the
minimum formation thresholds established by Amendment 93. However, NMFS
cannot process these applications until the new minimum formation
thresholds contained in 50 CFR 679.91(h)(3)(ii) and (iii) are
effective. Immediate effectiveness of these sections will allow NMFS to
process applications submitted for Amendment 80 cooperatives in a
timely manner which will provide the fishing industry the earliest
possible opportunity to plan and conduct its fishing operations with
respect to new cooperative formation requirements before the start of
the 2012 fishing year in January. A 30-day delay in effectiveness would
prevent NMFS from processing Amendment 80 cooperative applications in a
timely manner and would create uncertainty within the industry and
frustrate the affected industry's ability to plan for the upcoming
fishing year. For these reasons, NMFS finds good cause to waive the 30-
day delay in effectiveness under 5 U.S.C. 553(d)(3) for 50 CFR
679.91(h)(3)(ii) and (iii). NMFS is not waiving the 30-day delay in
effectiveness for 50 CFR 679.91(h)(3)(xii) because immediate
effectiveness of that section is not necessary.
Pursuant to section 604 of the Regulatory Flexibility Act, 5 U.S.C.
601 et seq., a FRFA was prepared for this action. The FRFA incorporates
the IRFA, and includes a summary of the significant issues raised by
public comments in response to the IRFA, and NMFS' responses to those
comments, and a summary of the analyses completed to support the
action. A copy of the EA/RIR/FRFA prepared for this final rule is
available from NMFS (see ADDRESSES). A description of this action, its
purpose, and its legal basis are contained at the beginning of the
preamble to this final rule and are not repeated here.
NMFS published the proposed rule to implement Amendment 93 on
August 10, 2011 (76 FR 49417), and the public comment period closed on
September 9, 2011. An IRFA was prepared and summarized in the
``Classification'' section of the preamble to the proposed rule. NMFS
received three public comments on Amendment 93 and the proposed rule.
None of these comments addressed the IRFA.
This action modifies the cooperative formation standards and
requirements for assigning QS and Amendment 80 vessels to either a
cooperative or the limited access fishery. Six alternative approaches
for modifying cooperative formation criteria were considered.
Alternative 1: Status quo. A minimum of three unique QS holders holding
at least nine QS permits are required to form a cooperative.
Alternative 2: Reduce the number of unique QS holders required to form
a cooperative from the existing three QS holders to two or one unique
QS holder. Alternative 3: Reduce the number of QS permits required to
form a cooperative from the existing nine permits to eight, seven, six,
or three permits. Alternative 4: Reduce both the number of unique QS
holders and the number of QS permits required to form a cooperative
(combination of Alternatives 2 and 3 above). Alternative 5: Allow a
cooperative to form with a minimum of three unique QS holders holding
at least nine QS permits (status quo), or a single or collective group
of entities that represent 20 percent, 25 percent, or 30 percent of the
sector QS. Alternative 6: Require that a cooperative accept all persons
who are otherwise eligible to join a cooperative subject to the same
terms and conditions as all other members. The Council recommended
Alternative 4, reducing the number of unique QS holders to two unique
persons and reducing the number of QS permits required to form a
cooperative to seven QS permits, as its preferred alternative. The
Council rejected Alternatives 2, 3, 5, and 6 because public comments
and the analysis prepared for this action indicated these alternatives
likely would not offer substantially greater cooperative formation
opportunities or have substantially different economic implications
than the status quo alternative.
Two alternative approaches were considered for the QS and vessel
assignment provision. Alternative 1: status quo. QS holders with
multiple QS permits and vessels may assign those QS permits and vessels
to one or more cooperatives and the limited access fishery. Alternative
2: QS holders with multiple QS permits and vessels may assign those QS
permits and vessels to one or more cooperatives or the limited access
fishery, but not both. Alternative 2 would be effective two years after
the effective date of the final rule. The Council rejected the status
quo alternative because experience under
[[Page 68357]]
the Amendment 80 program has indicated that the status quo cooperative
formation criteria may disadvantage limited access fishery participants
and create incentives to discourage fishing cooperative formation.
Collectively, the alternatives and options considered under these
two proposed actions provided a broad suite of alternatives from which
the Council chose to modify the factors affecting cooperative
formation.
The overall impact of this action to small entities is expected to
be positive. Impacts from Amendment 93 would accrue differentially
(i.e., some entities could be negatively affected and others positively
affected). The Council considered an extensive range of alternatives
and options as it designed and evaluated the potential for changes to
the Amendment 80 sector, including the ``no action'' alternative.
Compared with the status quo, the action selected by the Council
minimizes the adverse economic impacts on the directly regulated small
entity. The alternatives implemented in this final rule are expected to
provide greater opportunity for cooperative formation among the various
Amendment 80 businesses. In no case are these combined impacts expected
to be substantial. Alternative 4 for the cooperative formation
standards, which requires two unique persons and seven QS permits to
form a cooperative, is not expected to adversely affect the existing
Amendment 80 cooperatives, but could provide additional cooperative
formation opportunities for participants in the Amendment 80 limited
access fishery. For the QS and Amendment 80 vessel assignment component
of this action, Alternative 2 will reduce the incentive for owners of
multiple vessels to exclude a person from a cooperative. This
alternative is expected to enhance the likelihood of cooperative
formation.
For purposes of a FRFA, the U.S. Small Business Administration has
established that a business involved in fish harvesting is a small
business if it is independently owned and operated, not dominant in its
field of operation (including its affiliates), and has combined annual
gross receipts not in excess of $4.0 million for all its affiliated
operations worldwide. The FRFA estimates that 28 non-AFA trawl catcher/
processors could generate Amendment 80 QS, based on the provisions of
the Amendment 80 Program. Those persons who apply for and receive
Amendment 80 QS are eligible to fish in the Amendment 80 sector, and
those QS holders will be directly regulated by this action. Based on
the known affiliations and ownership of the Amendment 80 vessels, all
but one of the Amendment QS holders are categorized as large entities
for the purpose of the RFA under the principles of affiliation, due to
their participation in a harvest cooperative or through known ownership
of multiple vessels, co-ownership and ``shares'' ownership among
vessels, and other economic and operational affiliations. Thus, the
FRFA estimates that only one small entity will be directly regulated by
the proposed action. It is possible that this one small entity could be
linked by company affiliation to a large entity, which may then qualify
that entity as a large entity, but complete information is not
available to determine any such linkages.
This final rule will not change existing reporting, recordkeeping,
or other compliance requirements. This final rule does not contain a
collection-of-information requirement subject to the Paperwork
Reduction Act.
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 FRFA, 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. As part of
this rulemaking process, NMFS has posted a small entity compliance
guide on its Web site at http://alaskafisheries.noaa.gov/sustainablefisheries/amds/80/default.htm. A letter to permit holders
that also serves as a small entity compliance guide was prepared.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: November 1, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for 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.
0
2. In Sec. 679.91, paragraphs (h)(3)(ii), (h)(3)(iii), and (h)(3)(xii)
are revised to read as follows:
Sec. 679.91 Amendment 80 Program annual harvester privileges.
* * * * *
(h) * * *
(3) * * *
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(ii) What is the minimum number of Any combination of at least
Amendment 80 QS permits that must be seven Amendment 80 QS permits
assigned to an Amendment 80 which would include Amendment
cooperative to allow it to form?. 80 LLP/QS licenses.
(iii) How many Amendment 80 QS holders At least two Amendment 80 QS
are required to form an Amendment 80 holders each of whom may not
cooperative?. have a ten percent or greater
direct or indirect ownership
interest in any of the other
Amendment 80 QS holders.
[[Page 68358]]
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(xii) Can an Amendment 80 QS permit, No, an Amendment 80 QS permit,
Amendment 80 LLP license, or Amendment Amendment 80 LLP license, or
80 vessel be assigned to an Amendment Amendment 80 vessel assigned
80 cooperative and the Amendment 80 to an Amendment 80 cooperative
limited access fishery?. may not be assigned to the
Amendment 80 limited access
fishery for that calendar
year. Prior to the 2014
fishing year, a person holding
multiple Amendment 80 QS
permits, Amendment 80 LLP
licenses, or owning multiple
Amendment 80 vessels is not
required to assign all
Amendment 80 QS permits,
Amendment 80 LLP licenses, or
Amendment 80 vessels to the
same Amendment 80 cooperative
or the Amendment 80 limited
access fishery. Starting with
the 2014 fishing year and
thereafter, a person holding
multiple Amendment 80 QS
permits, Amendment 80 LLP
licenses, or owning multiple
Amendment 80 vessels must
assign all Amendment 80 QS
permits, Amendment 80 LLP
licenses, or Amendment 80
vessels to either one or more
Amendment 80 cooperatives, or
the Amendment 80 limited
access fishery.
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[FR Doc. 2011-28665 Filed 11-3-11; 8:45 am]
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