[Federal Register Volume 79, Number 247 (Wednesday, December 24, 2014)]
[Proposed Rules]
[Pages 77427-77440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30155]
[[Page 77427]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 680
[Docket No. 101214615-4999-01]
RIN 0648-BA61
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Crab Rationalization Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues a proposed rule that would implement Amendment 31
to the Fishery Management Plan for Bering Sea/Aleutian Islands King and
Tanner Crabs (FMP). The proposed rule would make several changes to
regulations governing the acquisition, use, and retention of quota
share established for captains and crew, known as crew quota share or C
shares, under the Crab Rationalization Program (CR Program). To
implement Amendment 31, the proposed rule would: Temporarily expand the
eligibility requirements for individuals wishing to acquire C share
Quota Share (QS) by transfer; establish minimum participation
requirements for C share QS holders to be eligible to receive an annual
allocation of Individual Fishing Quota (IFQ); establish minimum
participation requirements for C share QS holders to be eligible to
retain their C share QS and establish an administrative process for
revocation of an individual's C share QS, if he or she fails to satisfy
the minimum participation requirements; establish a regulatory
mechanism to ensure that three percent of the total allowable catch
(TAC) for each CR Program crab fishery is allocated as IFQ to holders
of C share QS; and remove the prohibition on leasing C share IFQ. In
addition, the proposed rule would implement a regulatory amendment to
the CR Program that adjusts certain CR Program application deadlines.
Specifically, the proposed rule would: Establish an earlier deadline
for filing annual IFQ, individual processing quota (IPQ), and crab
harvesting cooperative IFQ applications, which would increase the
amount of time during which NMFS would suspend the processing of IFQ
and IPQ transfer applications; shorten the amount of time in which to
appeal an initial administrative determination to withhold issuance of
IFQ or IPQ; and provide in the regulations that an applicant's proof of
timely filing for IFQ, IPQ, or cooperative IFQ would create a
presumption of timely filing. Finally, the proposed rule would revise
the reporting period and due date for CR Program registered crab
receiver (RCR) Ex-vessel Volume and Value Reports. This action is
necessary to ensure that individuals who hold C shares are active in
the CR Program fisheries and to ensure that application deadlines
provide adequate time to resolve disputes. 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: Comments must be received no later than January 23, 2015.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2010-0265, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2010-0265, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau,
AK 99802-1668.
Instructions: Comments sent by any other method, to any other address
or individual, or received after the end of the comment period, may not
be considered by NMFS. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, 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). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
action may be submitted to NMFS at the above address and by email to
[email protected] or fax to 202-395-7285. Electronic copies
of Amendment 31, the Regulatory Impact Review/Initial Regulatory
Flexibility Analysis (RIR/IRFA) and the categorical exclusion prepared
for this action--as well as the Environmental Impact Statement prepared
for the CR Program--may be obtained from http://www.regulations.gov or
from the Alaska Region Web site at http://alaskafisheries.noaa.gov.
NMFS determined that this proposed action was categorically excluded
from the need to prepare an environmental assessment under the National
Environmental Policy Act.
FOR FURTHER INFORMATION CONTACT: Karen Palmigiano, 907-586-7228.
SUPPLEMENTARY INFORMATION: The king and Tanner crab fisheries in the
exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI)
are managed under the Fishery Management Plan for Bering Sea/Aleutian
Islands King and Tanner Crabs FMP (FMP). The FMP was prepared by the
North Pacific Fishery Management Council (Council) under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
as amended by the Consolidated Appropriations Act of 2004 (Public Law
108-199, section 801). Regulations implementing the FMP, including the
CR Program, are primarily located at 50 CFR part 680.
Background
Overview of CR Program and C Shares
The CR Program is a limited access privilege program that allocates
the harvest of certain crab fisheries managed under the FMP among
harvesters, processors, and coastal communities. Under the CR Program,
NMFS issued four types of quota share (QS) to persons based on their
qualifying harvest histories in certain BSAI crab fisheries during a
specific period of time defined under the CR Program. The four types of
QS are catcher vessel owner (CVO), catcher processor owner (CPO),
catcher vessel crew (CVC), and catcher processor crew (CPC). CVC and
CPC QS are also known as ``crew shares'' or ``C shares.'' At the
beginning of the CR Program, NMFS issued 97 percent of the QS as owner
QS, either CVO or CPO, and issued the remaining three percent as C
shares, either CVC or CPC.
NMFS issued C shares to individuals holding State of Alaska
Commercial Fisheries Entry Commission (CFEC) Interim Use Permits,
generally vessel captains, who met specific historic and recent
participation requirements in CR Program fisheries. NMFS did not issue
C shares to individuals who did not
[[Page 77428]]
meet both the historic and recent participation criteria. After the
initial issuance of C shares, individuals may only acquire C shares
through transfer.
Each year, a QS holder submits a timely and complete ``Application
for Annual Crab Individual Fishing Quota (IFQ) Permit'' in order to
receive an exclusive harvest privilege for a portion of the total
allowable catch (TAC) for each CR Program fishery in which the person
holds QS. This harvest privilege is conferred as IFQ, and provides the
QS holder with an annual allocation of pounds of crab for harvest in a
specific CR Program crab fishery during the year in which it was
allocated. The size 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. For example, an individual holding C share QS equaling
one percent of the C share QS pool in a crab fishery would receive IFQ
to harvest one percent of the annual TAC allocated to C share QS in
that crab fishery. NMFS issues holders of CVO QS two types of IFQ:
Class A IFQ, which must be delivered to a processor holding a matching
amount of IPQ, and Class B IFQ, which may be delivered to any
registered crab receiver. Current regulations do not require C share
IFQ to be matched with IPQ, and C share IFQ may be delivered to any
registered crab receiver, similar to Class B CVO IFQ (see Sec.
680.40(2)(b)(iii)).
When initially establishing C shares, the Council intended that
individuals holding C shares be active in CR Program fisheries. To
ensure active participation by crew, the CR Program requires the holder
of C shares to be onboard the vessel when their C share IFQ is
harvested (the ``holder on-board'' requirement) and prohibits holders
of C shares from leasing their C share IFQ except in the case of a
hardship. However, the CR Program exempts a holders of C shares from
these two requirements if the holder of C shares has joined a crab
harvesting cooperative and the holder's C share IFQ is converted to
cooperative IFQ. The CR Program also includes participation criteria
that must be satisfied for an individual to be eligible to receive C
share QS by transfer. To receive C share QS by transfer, current
regulations require an applicant to meet eligibility requirements at
the time of transfer. To meet these eligibility requirements, an
individual may submit an Application for BSAI Crab Eligibility to
Receive QS/PQS by Transfer in advance of, or concurrently with, their
Application for Transfer of Crab QS or PQS. The regulations require
that an individual must be a U.S. citizen with (1) at least 150 days of
sea time as part of a harvesting crew in any U.S. commercial fishery;
and (2) participation as crew in one of the CR Program fisheries in the
365 days prior to the date the transfer application is submitted to
NMFS. If NMFS determines that an individual is eligible to receive C
share QS by transfer, that individual would be required to submit proof
of participation as crew in one of the CR Program fisheries in the 365
days prior to the date of their application to transfer QS if more than
365 days has elapsed between NMFS' determination of eligibility and the
submission of the transfer application. (See regulations at Sec.
680.41 (c)(2)(ii)(C).)
Annually, C share IFQ is assigned based on the individual's
underlying QS. In a CR Program fishery, the annual allocation of IFQ
assigned to any person (p) is based on the TAC for that crab QS fishery
(f) less the allocation to the Western Alaska Community Development
Quota (CDQ) Program and the Western Aleutian Islands golden king crab
fishery. As expressed in regulations at Sec. 680.40(h), the annual IFQ
allocation calculation is as follows:
IFQ TACf = TACf - (Western Alaska CDQ
Program + Western Aleutian Islands golden king crab fishery)
IFQpf = IFQ TACf * (QSpf/
QSf)
Based on these calculations, a person holding one percent of the QS
in a CR Program fishery (QSpf) would receive IFQ to harvest
one percent of the annual TAC in that CR Program fishery.
Crab Cooperative, IFQ, and IPQ Application Deadlines
Under current regulations, the crab fishing year begins on July 1
and ends on June 30. Annually, QS and PQS holders must apply for
allocations of IFQ and IPQ, respectively, for the upcoming crab fishing
year. QS holders apply for annual IFQ through an individual
application. They must indicate on this application whether or not they
are joining a cooperative. If they are joining a cooperative that year,
the cooperative's annual IFQ application must include the QS holder's
annual IFQ application (or a copy of that application). Because 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
the current regulations, all applications for IFQ, IPQ, and cooperative
IFQ must be filed with the NMFS Restricted Access Management Program
(RAM) by August 1. Although the crab fishing year begins on July 1, the
individual crab fisheries open at different times later in the crab
fishing year. Until recently, the first crab fishery to open, the
Aleutian Islands golden king crab fishery, opened on August 15; the
remaining crab fisheries open on October 15 or later in the crab
fishing year. In March 2014, the State of Alaska changed the opening
date for the Aleutian Islands golden king crab fishery to August 1 to
allow for fishing to occur slightly earlier in the summer months when
it is safer for the fishers. To aid QS and PQS holders in meeting the
application deadline, NMFS provides application forms on its Web site
(see ADDRESSES), highlights the application deadline on the site, 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.
Generally, 30 to 40 QS and PQS holders fail to file their
applications for IFQ or IPQ by the August 1 deadline each year. When
this occurs, RAM sends an Initial Administrative Determination (IAD) to
the QS or PQS holder. The IAD notifies the QS or PQS holder of the
holder's failure to file in a timely manner and states that the holder
will not receive an annual allocation of IFQ or IPQ. The IAD also
states that the QS or PSQ holder has the right to appeal the IAD by
submitting an appeal to NMFS within 60 days of the date of the IAD. RAM
typically issues IADs for failure to timely file an application for IFQ
or IPQ before the middle of August. Alaska Department of Fish and Game
(ADF&G) typically announces TAC information for a majority of the CR
Program fisheries around September 30, and RAM issues most IFQ and IPQ
permits early in October, in order to allow share matching to occur
prior to the October 15 start date for most of the CR Program crab
fisheries.
To ensure that access to an annual allocation is not lost should a
QS or PQS holder prevail on appeal of the IAD, RAM holds in reserve the
amount of IFQ or IPQ in dispute until final agency action on the IAD is
reached. In some instances, final agency action is reached before RAM
issues IFQ and IPQ for the upcoming crab fishing year, allowing RAM to
either issue the IFQ or IPQ to the successful appellant or return the
IFQ or IPQ 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 RAM issues
IFQ and IPQ for the upcoming crab fishing year, NMFS must continue to
hold the disputed IFQ or IPQ in reserve.
The need for NMFS to hold disputed IFQ or IPQ in reserve could lead
to
[[Page 77429]]
unintended repercussions for the other QS and PQS holders who are not
involved in the dispute. As mentioned previously, NMFS issues CVO QS as
either Class A IFQ, which must be delivered to a Registered Crab
Receiver (RCR) with a matching amount of unused IPQ, or Class B IFQ,
which may be delivered to any RCR and does not require a matching
amount of IPQ. Regulations require that Class A IFQ be matched with IPQ
within five days after RAM issues the annual IFQ and IPQ for a crab
fishery. Class A IFQ and IPQ are issued by fishery in equal amounts to
facilitate this share matching requirement. Therefore, any Class A IFQ
or any IPQ that is held in reserve pending appeal can result in
unusable IFQ and/or IPQ, which equals unharvested pounds of crab. For
example, if 100 pounds of Class A IFQ is held in reserve pending
appeal, NMFS will still issue 100 pounds of IPQ to match the amount of
reserved Class A IFQ. This is necessary in order to ensure that should
the IFQ held in reserve be issued, the IFQ holder can match that IFQ
with IPQ as required by regulation. If the IFQ subject to appeal is
never issued (because the applicant fails to appeal or the appeal is
denied), then the processor holding the matching IPQ cannot use that
IPQ. The reverse is also true; if 100 pounds of IPQ is held in reserve
pending appeal and then never issued, the 100 pounds of matching Class
A IFQ cannot be used by the harvesting sector.
Need for Action
At its June 2007 meeting, the Council received public testimony and
recommendations from its Advisory Panel advocating for modifications to
the participation requirements for acquisition and use of C shares.
Participants in the CR Program fisheries raised the following issues:
At least 750 former crew, who did not receive an initial
allocation of C shares but who were active in CR Program fisheries in
the five years preceding implementation of the CR Program, are no
longer active in CR Program fisheries due to the significant reduction
in the number of vessels participating in CR Program fisheries
subsequent to implementation of the CR Program.
The current eligibility requirement for recent
participation in one of the CR Program crab fisheries prevents
acquisition of C shares by individuals formerly active in CR Program
fisheries, but who are no longer a participant due to the significant
fleet contraction and resulting loss of crew positions on crab boats.
Estimates of available information indicate that
approximately 30 percent (70 individuals) of the individuals who
received an initial allocation of C share QS (239 individuals) have
remained active in the CR program fisheries, while approximately 70
percent (169 individuals) have not remained active in CR program
fisheries.
The regulations intended to keep C share QS holders active
in the fisheries are not working due to the exemptions from these
active participation requirements for holders of C shares who join a
crab harvesting cooperative.
Given this information, the Council determined that the current
eligibility requirements for the acquisition of C shares have the
effect of preventing some displaced, long-time captains and crew from
acquiring C shares and that temporary modifications are necessary to
increase the pool of individuals eligible to acquire C shares by
transfer. The Council also determined that revisions to the current
active participation requirements are necessary to establish reasonable
participation requirements for holders of C shares and to ensure that
they remain active in the fisheries. At its April 2008 meeting, the
Council made final recommendations that formed the basis for Amendment
31 to the FMP and this proposed rule.
After taking action on Amendment 31, the Council received the 5-
year review of the CR Program at its December 2010 meeting. The 5-year
review identified problems resulting from the insufficient amount of
time available for NMFS to resolve IFQ and IPQ application disputes
prior to the date by which NMFS must issue IFQ, IPQ, and cooperative
IFQ. Based on this information, the Council requested that staff
prepare an analysis examining an alternative that would provide NMFS
with adequate time to resolve application disputes and decrease the
likelihood of potential mismatches of Class A IFQ and IPQ pools. At its
April 2011 meeting, the Council recommended three actions: (1) Moving
the application deadline for annual IFQ and IPQ permits to an earlier
date; (2) shortening the time in which to file an appeal; and (3)
providing that an applicant's proof of timely filing for IFQ, IPQ, or
cooperative IFQ would create a presumption of timely filing.
The Proposed Actions
This proposed rule would make several changes to regulations
governing the acquisition, use, and retention of C share QS under the
CR Program. To implement Amendment 31, the proposed rule would: (1)
Temporarily expand the eligibility requirements for individuals wishing
to acquire C share QS by transfer; (2) establish minimum participation
requirements for C share QS holders to be eligible to receive an annual
allocation of IFQ; (3) establish minimum participation requirements for
C share QS holders to be eligible to retain their C share QS and
establish an administrative process for revocation of an individual's C
share QS if he or she fails to satisfy the minimum participation
requirements; (4) establish a regulatory mechanism to ensure that 3
percent of the TAC for each CR Program crab fishery is allocated as IFQ
to holders of C share QS; and (5) remove the prohibition on leasing C
share IFQ.
Additionally, this proposed rule would implement a regulatory
amendment adopted by the Council. The regulatory amendment would make
three changes in the annual application process for IFQ, IPQ, and
cooperative IFQ in the CR Program. Unlike the proposed modifications
summarized above to implement Amendment 31, these three proposed
modifications do not require an amendment to the FMP. They do, however,
result from a Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (RIR/IRFA) and recommendations by the Council and are
consistent with the FMP. Specifically, the proposed rule would: (1)
Establish June 15 as the deadline for filing annual IFQ, IPQ, and
cooperative IFQ applications, which would also increase the amount of
time during which NMFS would suspend the processing of IFQ and IPQ
transfer applications; (2) shorten the amount of time in which to
appeal an initial administrative determination to withhold issuance of
IFQ or IPQ from 60 days to 30 days; and (3) provide in the regulations
that an applicant's proof of timely filing an application for IFQ, IPQ,
or cooperative IFQ would create a presumption of timely filing.
Finally, to accommodate the change to the season opening date for the
Aleutian Islands golden king crab fishery, the proposed rule would
revise the reporting period for RCR Ex-vessel Volume and Value Reports
from August 15 through April 30 to August 1 through May 31. Detailed
explanations of the proposed regulatory changes are provided in the
following paragraphs.
Modify Active Participation Requirements To Acquire C Shares
Current regulations state that to receive C shares by transfer, a
person must be an individual with at least 150 days of sea time in a
harvest capacity in a U.S. commercial fishery and have been active as a
crewmember in one of the CR Program fisheries in the 365 days
[[Page 77430]]
prior to submission of a transfer application to NMFS. Under this
standard, captains and crew displaced by fleet contraction that have
not found a position in one of the CR Program fisheries would not be
permitted to acquire C shares until they participated in a landing.
Based on the significant fleet contraction that occurred at the
inception of the CR Program, it is likely that as many as two-thirds of
the persons that would have met this standard prior to the
implementation of the CR program would not currently meet this
standard. To understand the effects of the status quo, the impacted
individuals have been separated into two groups: Individuals that
received an initial allocation, and individuals that did not receive an
initial allocation.
When NMFS implemented the CR Program in 2005, NMFS made initial
allocations of C share QS to CFEC permit holders that were individuals
(i.e., a natural person who is not a corporation, partnership,
association, or other such entity), U.S. citizens, and who met the
following historical and recent participation requirements:
(A) Had historical participation as crew in the fishery
demonstrated by being the individual named on a State of Alaska Interim
Use Permit for a QS crab fishery and made at least one legal landing
per year for any 3 eligibility years under that permit based on data
from fish tickets maintained by the State of Alaska.
(B) Had recent participation as crew in the fishery demonstrated by
being the individual named on a State of Alaska Interim Use Permit for
a QS crab fishery and made at least one legal landing under that permit
in any 2 of 3 seasons based on data from fish tickets maintained by the
State of Alaska.
Based on these criteria, 239 individuals received initial
allocations of C share QS. These individuals were mostly captains
because most of the named permit holders on ADF&G fish tickets were
captains. Some individuals, who had participation in the crab fisheries
similar to the individuals who received C share QS, were not eligible
to receive C share QS because they were not the named permit holders on
ADF&G fish tickets. These individuals were primarily crewmembers and
some captains.
Under the current regulations, those individuals who received
initial allocations of C share QS but were unable to find a position on
a vessel due to vessel contraction, are unable to acquire C share QS
because they do not meet the participation requirements. Also, a number
of individuals who received an initial allocation of C share QS are
unable to acquire C share QS because they are believed to have not
maintained their activity in the fisheries. NMFS believes that since
the 2009-2010 fishing year, on average, only approximately 100
individuals who received an initial allocation under the CR Program
still participate in the CR Program.
The second group of individuals who are unable to acquire C share
QS are those individuals who were not a part of the initial allocation
of C share QS in 2005. Under the current regulations, these individuals
are unable to acquire C share QS by transfer because they do not meet
the current eligibility requirement for participation in a CR crab
fishery in the 365 days prior to submission of an application for
transfer of C share QS (i.e., the recent participation requirement).
The regulations at Sec. 680.41(c)(2)(ii)(C) state that participation
as crew can be proved by providing evidence of at least one delivery of
a CR crab species through the submission of an ADF&G fish ticket
imprinted with the applicant's State of Alaska permit card, an IFQ
landing receipt showing the applicant individual as the hired master,
or an affidavit from the vessel owner attesting to the applicant's
participation in a delivery. Given the participation requirements in
the current regulations, captains and crew who: (1) Did not receive an
initial allocation, (2) were displaced from CR Program fisheries due to
significant fleet consolidation, and (3) have not found work in one of
the CR Program fisheries have been unable to demonstrate recent
participation in a CR crab delivery and therefore cannot acquire C
shares by transfer.
The Council determined that the current regulations do not allow
individuals who participated in BSAI crab fisheries before
implementation of the CR Program, and who may or may not have qualified
for an initial allocation of QS, to reenter the fishery because they
cannot qualify under the 365-day recent participation requirement. The
Council also determined that current active participation requirements
for acquiring C share QS by transfer may be overly burdensome for some
captains and crew because of changes in fishing practices and fleet
consolidation resulting from implementing the CR Program.
Based on public testimony and input from its Advisory Panel, the
Council recommended modifications to the eligibility requirements for
acquisition of C share QS by transfer to allow for a transitional
eligibility period, during which individuals who have been unable to
meet the recent participation requirement would be able to acquire C
shares through relaxed participation requirements. The transitional
eligibility period also would allow those individuals who are no longer
active in the crab fisheries to either begin actively participating in
the fishery or divest of their shares. The Council recommended, based
on the RIR/IRFA and public testimony, that the transitional eligibility
period should be limited to four years. The Council determined, and
NMFS agrees, that this period would provide ample time to obtain C
shares for those individuals looking to remain active in the fisheries,
or divest C shares for those individuals who are no longer interested
in participating.
Therefore, this proposed rule would modify the eligibility
requirements for the transfer of C share QS, to include an exception
where the eligibility requirements are less restrictive than the
current requirements. Specifically, the proposed rule would permit
during a transitional eligibility period the transfer of C share QS to
an individual who is a U.S. citizen with at least 150 days of sea time
as part of a harvesting crew in any U.S. commercial fishery and who
either: (1) Received an initial allocation of CVC or CPC QS, or (2)
participated in at least one delivery of crab from a fishery in the CR
program in three of the five crab fishing years prior to the start of
the CR Program, starting with the 2000/2001 crab fishing year through
the 2004/2005 crab fishing year. The transitional eligibility period
would be limited to four years.
Under this proposed rule, both initial recipients of C share QS as
well as individuals who did not receive an initial allocation but who
participated in CR crab fisheries for three of the five years prior to
the start of the CR program, would be eligible to receive C share QS.
Under the proposed rule, initial recipients of C share QS would be
those individuals who received an initial allocation of C share QS
regardless of whether those individuals still hold their initial
allocation of C share QS. Because the proposed rule does not modify the
current eligibility criteria at Sec. 680.41(c)(1)(vii), an individual
may acquire C share QS using either the existing eligibility criteria,
or the exception proposed in this rule. The intended effect of the
proposed change is to temporarily expand the pool of individuals
eligible to acquire C share QS by transfer to include individuals who
were active in the crab fishery immediately prior to implementation of
the program, but who do not meet the current recent participation
requirement for activity in
[[Page 77431]]
the 365 days preceding the transfer. Therefore, under this proposed
rule, an individual may be eligible to acquire C share QS under the
existing eligibility criteria, as well as the exception that would be
added to the regulations under this proposed rule. Acceptable evidence
for the proposed new eligibility criteria would be the same as for the
current eligibility criteria at Sec. 680.41(c)(2)(ii)(C).
The eligibility criteria added by this proposed rule would exist
only for a period of four years from the effective date of this final
rule, if Amendment 31 is approved. The proposed relaxation of the
eligibility criteria would provide individuals formerly active in CR
program fisheries, but who may not have been able to continue active
participation in the CR crab fisheries, with an opportunity to acquire
C share QS during the period of time in which current holders of C
shares would be transitioning into compliance with the active
participation requirements for holders of C shares that also would be
imposed by this proposed rule. The proposed four-year duration of the
relaxed eligibility criteria for acquiring C share QS by transfer
coincides with the initial period of time in which C share QS holders
would be required to transition into the active participation
requirements developed by the Council and proposed in this rule. The
Council determined and NMFS agrees that extending the proposed relaxed
eligibility criteria beyond this transitional period is not necessary
because the transitional period is not meant to allow individuals who
have not participated in a CR Program fishery to join at any time
because they have some type of historic participation. Instead, the
transitional period is intended to be a remedy for those individuals
wishing to become C share QS holders that were squeezed out by
consolidation and were not able to get back into the fishery. The
Council and NMFS determined that four years would be sufficient time
for those individuals to acquire C share QS, find a position on a boat,
and participate in CR Program fisheries without overwhelming the
fisheries with too many individuals and not enough positions. After
this transitional period, the relaxed eligibility criteria that would
be implemented by this proposed rule would no longer be available.
The benefit to those receiving eligibility for acquiring C share QS
during the transitional period and the effects on the market for C
share QS could be influenced by several factors. If C share QS holders
must be active in the crab fisheries to receive IFQ and retain C share
QS, or if C share QS holders must divest after a period of inactivity,
both of which would be required under this proposed rule and explained
in the following sections, the transitional eligibility period could
have minimal effects on individuals receiving the eligibility. An
individual who becomes eligible to purchase C share QS during the
proposed transitional eligibility period would be expected to satisfy
participation requirements for C share QS holders and much less likely
to purchase C share QS if the individual would not be eligible to
receive IFQ or would be required to divest his or her C share QS
holdings after a period of inactivity.
However, the relaxed eligibility criteria may have an adverse
effect on individuals currently active as captains and crew in the CR
Program fisheries. Competition for C share QS may increase with
increased demand and with limited space for crew and captains,
individuals may find more competition for jobs. However, individuals
who do not currently have a position on a boat may be less interested
in obtaining C share QS, and if there are more individuals interested
and able to purchase C share QS, this may provide an opportunity for
those individuals no longer wanting to remain active in the fishery to
sell their shares for a competitive price.
Active Participation Requirements for Annual Issuance of C Share IFQ
The current regulations require individuals who receive C share IFQ
to be on board the vessel harvesting those IFQ and prohibit the
individual from leasing his or her C share IFQ. However, if a C share
QS holder joins a cooperative, the IFQ from that C share QS are
allocated to the cooperative, and the ``holder onboard'' requirement as
well as the leasing prohibition no longer apply with respect to those
IFQ. This disparate treatment of individual holders of C share QS who
are members of a cooperative versus holders of C share QS who are not
members of a cooperative has had several effects, which were not the
intention of the Council when it created the CR Program and C shares.
First, the exemptions from the ``holder onboard'' requirement and the
leasing prohibition for holders of C shares who are members of a
cooperative increase the incentive for holders of C shares to join a
cooperative and essentially nullify the requirement for the holders of
C shares to be onboard a vessel to harvest their IFQ. Since almost all
holders of C share QS annually elect to join a cooperative, they do not
have to be onboard the vessel while their C share IFQ are harvested and
they are not prohibited from leasing their shares within the
cooperative under the current requirements. While the Council intended
to encourage the formation of cooperatives and the participation of
holders of C shares as members in cooperatives, the Council expected
that holders of C share would remain active as crew in the CR Program
fisheries regardless of whether they were members of a cooperative.
Additionally, NMFS expects that as active holders of C shares retire
from captain and crew positions, many may elect to continue to remain
members of cooperatives and retain their C share holdings, effectively
reducing the number of holders of C shares who are actively
participating in the fisheries. Lastly, the market for C shares could
be less fluid under the current active participation requirements for
crew, because individuals who retire or exit the fisheries are still
able to retain their C shares and benefit from them through cooperative
membership. NMFS expects that if only active captains and crew would be
permitted to hold and receive benefits from C shares, the market for
these shares would be more active and fluid, since individuals who
retire or exit the fisheries would be required to transfer their C
shares.
The Council's original intent for including C share QS in the CR
Program was to maintain active participation in the crab fisheries by
those QS holders. However, this has not happened. Instead, there is a
strong incentive for individuals who hold C shares to join a
cooperative and not be onboard the vessel for harvest of their IFQ.
These exemptions have made the current participation requirements for
holders of C shares essentially ineffective. Examining the activity of
holders of C shares in the past few years of the CR Program provides
perspective on the effects of the Council's and NMFS' proposed changes.
According to RAM catch data, during the 2010/2011 crab fishing year,
108 of the 207 holders of C shares in the CR Program fisheries are
estimated to not have participated in the preceding three seasons. NMFS
does not know whether these holders of C shares were active as crew, as
no data is kept on crew participation. NMFS expects that the share of
the C share QS pool held by inactive individuals is a substantial
portion of the C share QS pool.
This proposed rule revises the regulations to establish active
participation requirements that a C share QS holder must satisfy to
receive an annual allocation of C share IFQ. Under this proposed rule,
C share QS holders would be required to
[[Page 77432]]
demonstrate active participation as crew over a rolling, three-year
period of time by either: (1) Participating in at least one delivery of
crab in a CR program fishery or (2) if the C share QS holder is an
individual who received an initial allocation of C share QS,
participating at least 30 days in either State of Alaska or Federal
Alaska commercial fisheries. Initial recipients of C share QS, who
choose to satisfy the proposed requirements through participation as
crew in State of Alaska or Federal Alaska commercial fisheries, would
need a minimum of 30 days of participation as crew during the three-
year period, and that participation could be earned in State of Alaska
commercial fisheries, U.S. commercial fisheries conducted in the U.S.
Exclusive Economic Zone off Alaska, i.e., Federal Alaska commercial
fisheries, or a combination of both. A C share QS holder who does not
meet the proposed active participation requirements every three years
would not receive an annual IFQ allocation.
In order to demonstrate active participation as crew for issuance
of IFQ, a C share QS holder would be required to complete a ``statement
of participation'' that would be part of the annual Application for
Crab IFQ. Beginning with IFQ applications for the 2015/2016 crab
fishing year, a C share QS holder would have to state whether he or
she: (1) Participated in at least one delivery of crab in any CR
fishery during the crab fishing year immediately preceding the crab
fishing year for which the holder is applying, or (2) if the holder was
an initial recipient of CVC or CPC QS, participated in State of Alaska
or Federal Alaska commercial fisheries during the crab fishing year
immediately preceding the crab fishing year for which the QS holder is
applying. If a C share QS holder answers ``Yes'' to either question,
the holder would be required to attach evidence demonstrating that they
participated as a crew member. Acceptable evidence of participation as
crew would be ADF&G fish tickets imprinted with the applicant's State
of Alaska permit card and signed by the applicant, an affidavit from
the vessel owner supporting the applicant's participation as crew, or
signed receipts for IFQ crab landings on which the applicant was acting
as the permit holder's crab IFQ hired master. Although an applicant
would be required to complete the statement of participation starting
with the 2015/2016 Application for Crab IFQ, participation in the 2014/
2015 crab fishing year would not count toward IFQ issuance for the
2018/2019 crab fishing year. The 3-year participation period for C
share IFQ issuance would begin with the 2015/2016 crab fishing year, if
Amendment 31 is approved. Because Amendment 31 would allow C share QS
holders three crab fishing years in which to demonstrate compliance
with the proposed participation requirements for issuance of C share
IFQ, NMFS would not withhold issuance of C share IFQ for failure to
meet participation requirements until the 2018/2019 crab fishing year.
The proposed C share IFQ participation requirements would be required
to be met on a rolling basis. Therefore, starting with the 2018/2019
annual Application for Crab IFQ and each year thereafter, an applicant
for C share IFQ would be required to demonstrate that he or she met the
proposed participation requirements during the three crab fishing years
preceding the crab fishing year for which the applicant is applying.
The following hypotheticals illustrate the proposed participation
requirements relative to the issuance of C share IFQ. In the first
hypothetical, Individual Y is not an initial recipient of C share QS
but has acquired C share QS by transfer. Under this proposed rule, in
order to receive IFQ for the 2018/2019 crab fishing year, Individual Y
would have to include evidence demonstrating participation as crew in
at least one delivery in a CR Program fishery during the 2015/2016,
2016/2017, or 2017/2018 crab fishing year with his or her annual
Application for Crab IFQ. Individual Y participates in deliveries of
crab in a CR Program fishery during the 2015/2016 crab fishing year.
Therefore, Individual Y would state in his or her Application for Crab
IFQ for the 2016/2017 crab fishing year that he or she participated in
the previous crab fishing year and would include evidence demonstrating
this participation. NMFS would record this information, noting that
because Individual Y satisfied the C share IFQ participation
requirements in 2015/2016, Individual Y would be eligible to receive C
share IFQ under the participation requirements through the 2018/2019
crab fishing year. In each Application for Crab IFQ where Individual Y
includes evidence demonstrating participation as crew, NMFS would re-
calculate the crab fishing year through which Individual Y would be
eligible to receive IFQ. In this hypothetical, Individual Y would have
to demonstrate participation as crew again in order to receive C share
IFQ for the 2019/2020 crab fishing year.
In the second hypothetical, if a C share QS holder fails to meet
the IFQ participation requirements, NMFS would not issue IFQ. In this
hypothetical, Individual X is an initial recipient of C share QS and
currently holds C share QS. However, he or she has joined a cooperative
and no longer actively participates on a fishing vessel. Under this
proposed rule, in order to receive IFQ for the 2018/2019 crab fishing
year, Individual X would have to once again participate as a member of
a harvesting crew for at least one delivery of crab in a CR program
fishery or for at least 30 days in a State of Alaska or Federal Alaska
commercial fishery prior to submitting his or her Application for Crab
IFQ for the 2018/2019 crab fishing year. If Individual X is unable to
do this, NMFS would not issue IFQ to Individual X and would send
Individual X a C share IFQ Withholding Notice. The notice would inform
Individual X that he or she did not meet the active participation
requirements in order to receive IFQ. Individual X would have 30 days
to provide NMFS with information demonstrating participation as
required. If Individual X fails to submit the required information or
submits insufficient information, NMFS would issue an Initial Agency
Determination (IAD) that would describe NMFS' initial findings and
would provide instructions to appeal. If Individual X proceeds with an
appeal and is able to provide documentation which shows that he or she
participated as required, then NMFS would issue the IFQ. If Individual
X is unable to successfully appeal the IAD, then NMFS would not issue
the IFQ.
Active Participation Requirements for Retention of C Share QS
In addition to proposed active participation requirements to
receive annual allocations of IFQ, C share QS holders also would be
required to satisfy active participation requirements in order to
retain their C share QS. Under the proposed rule, a C share QS holder
who did not receive an initial allocation of C share QS would be
required to participate as crew in at least one delivery in one of the
CR Program fisheries during any four consecutive crab fishing years in
order to retain his or her C share QS. A holder of C share QS who
received an initial allocation of C share QS would be required to meet
active participation requirements in one of two ways. Under the
proposed rule at 50 CFR 680.40(m), a C share QS holder who received an
initial allocation of C share QS would be required to participate in as
crew (1) at least one delivery in one of the CR Program crab fisheries
during any four consecutive crab fishing years, or (2) at least 30 days
of fishing in State of Alaska or Federal
[[Page 77433]]
Alaska commercial fisheries during any four consecutive crab fishing
years in order to retain his or her C share QS. The first crab fishing
year that would start the four-year participation period for retention
of C share QS would be the 2015/2016 crab fishing year. Similar to the
proposed participation requirements for IFQ, the period in which C
share QS holders would be required to demonstrate compliance in order
to retain their C share QS is a rolling period that would be required
to be met during any consecutive four-year period. Because C share QS
holders would have four crab fishing years in which to satisfy the
proposed participation requirements for retention of C share QS, NMFS
would not initiate revocation proceedings until after June 30, 2019.
NMFS notes that because the proposed IFQ issuance participation
requirements are the same as the proposed QS retention participation
requirements but would be required to be met more frequently, a C
shareholder who satisfies the proposed IFQ issuance participation
requirements would also satisfy the proposed QS retention participation
requirements. NMFS would remove revoked C share QS from the C share QS
pool.
The following hypothetical illustrates how NMFS would implement the
active participation requirements for retention of C share QS in
conjunction with the participation requirements for IFQ issuance.
Individual Y is not an initial recipient of C share QS but has acquired
C share QS by transfer. If Individual Y includes in his or her 2018/
2019 Application for Crab IFQ, evidence demonstrating participation as
crew in deliveries in a CR Program fishery during the 2017/2018 crab
fishing year, NMFS would determine that Individual Y met the
participation requirements for IFQ issuance for the 2018/2019 crab
fishing year, issue C share IFQ to Individual Y if all other
requirements were met, and update its records to reflect that
Individual Y is eligible to receive C share IFQ through the 2020/2021
crab fishing year and to retain his or her C share QS through the 2021/
2022 crab fishing year. Individual Y would have to meet the proposed
participation requirements no later than the 2020/2021 crab fishing
year in order to receive IFQ for the 2021/2022 crab fishing year, and
would have to meet the proposed participation requirements no later
than the 2021/2022 crab fishing year to avoid C share QS revocation
proceedings that would be added to 50 CFR 680.43 by this proposed rule.
If Individual Y is unable or chooses not to participate as would be
required to retain her C share QS, then NMFS would issue a Notice of C
Share QS Inactivity to Individual Y, providing him or her with 60 days
to provide NMFS with information demonstrating participation as crew
that meets the requirements of Sec. 680.40(m). NMFS would issue an IAD
if, after this period, NMFS determines that Individual Y has failed to
meet the participation requirements. Individual Y would then have an
opportunity to administratively appeal the IAD before revocation would
become effective. If Individual Y loses the appeal or chooses not to
appeal the IAD, then NMFS would revoke all of Individual Y's C share
QS.
The proposed rule would not exempt holders of C shares who join a
cooperative from the proposed participation requirements to receive C
share IFQ or to retain C share QS. Under the proposed rule, all holders
of C shares, regardless of whether they have joined a cooperative,
would be required to meet the proposed participation requirements for
receiving C share IFQ and retaining C share QS. Additionally, the
proposed rule would remove the prohibition on leasing C share IFQ,
which has been in effect since July 1, 2008. The Council determined and
NMFS agrees that the prohibition on leasing C share IFQ as a measure to
ensure active participation would no longer be necessary under
Amendment 31 because holders of C shares would be required to satisfy
specific participation requirements and these participation
requirements would apply to all holders of C shares even when they are
members of a cooperative. Because the proposed rule would permit the
leasing C share IFQ, the hardship exemptions at section 680.41(e)(3)
are removed. These hardship exemptions are applicable when a
prohibition on leasing C share IFQ is in effect, but would no longer be
necessary when the prohibition on leasing C share IFQ is removed.
The Council recommended and NMFS supports revocation of C share QS,
if the QS holder continues to be inactive, as an incentive for C share
QS holders to divest so that the QS is not held inactive for extended
periods of time. As the RIR/IRFA for this action explains at section
2.4.2, some current C share QS holders do not apply for C share IFQ;
therefore the proposed active participation requirements for issuance
of C share IFQ alone would not be effective at achieving the Council's
goal of making holders of C shares active participants in the
fisheries. The incentive for inactive C share QS holders to divest
their QS could be rather minor absent a potential for revocation. The
Council and NMFS anticipate that most inactive C share QS holders would
divest before any QS is revoked by NMFS. In addition, active C share QS
holders or those active crew members looking to acquire C share QS
would also benefit from an increase in QS availability in the market.
Maintenance of C Share IFQ Allocation at Three Percent of the Annual
TAC
Under the CR Program, the Council initially allocated 97 percent of
the QS pool to vessel owners as catcher vessel owner (CVO) and catcher
processor owner (CPO) QS and the remaining three percent as C share QS.
Because the amount of IFQ issued annually is a function of the number
of QS units and the annual TAC amount for a given fishery, the annual
IFQ allocation generally reflects the same 97 percent allocation to
vessel owners and three percent to vessel crew. For example, if Person
Z owns two percent of the 97 percent of vessel owner QS and the TAC is
3,000,000lbs, then Person Z would receive IFQ for 58,200lbs, because 97
percent of 3,000,000lbs is 2,910,000lbs and two percent of that is
58,200lbs. This allocation method maintains the intended QS and IFQ
percentages originally implemented by the Council. However, the
proposed revocation of C share QS could affect the 97/3 split, reducing
the amount of C share QS to less than three percent of the QS pool and
consequently reducing the amount of IFQ allocated to holders of C
shares. The Council's proposed revocation of inactive C share QS could
cause some C share QS to be removed from the QS pool. Removing C share
QS from the QS pool could reduce the C share QS below the three percent
level originally established by the Council.
To ensure that C share QS yields IFQ at the three percent level
intended by the Council, the proposed rule would modify the regulations
to carry the ratio into the calculation of IFQ and specifically
allocate 97 percent of the IFQ TAC for each CR crab fishery to CVO and
CPO IFQ, and three percent of the IFQ TAC for each CR crab fishery to C
share IFQ. The three percent allocation to C share IFQ would be divided
among eligible CVC and CPC QS holders based on the proportion of C
share QS they own. By separating the calculation of IFQ allocations to
C share QS holders from allocation of IFQ to vessel owner QS holders,
the allocation of IFQ to C share QS holders would be maintained at
three percent of the IFQ TAC, regardless of whether some C share QS is
revoked and removed from the C share QS pool.
[[Page 77434]]
Modification of IFQ, IPQ, and Cooperative Application Deadlines
Annually, QS holders are required to apply for IFQ either through
an individual application, if not joining a cooperative, or through an
application submitted by the cooperative manager as part of a
cooperative application. Applications are currently due to NMFS
Restricted Access Management Program (RAM) by August 1 with most crab
fishing seasons beginning on October 15. PQS holders, similarly, must
file applications annually by August 1 to receive IPQ. IPQ are not
subject to cooperative management. Instead, the applications are filed
by the PQS holder with IPQ issued directly to the PQS holder. To aid QS
holders and PQS holders in avoiding untimely applications, NMFS
maintains applications on its Web site, highlights the deadline on that
site, and sends reminders to QS holders and PQS holders near the end of
the crab fishing year to apply by the deadline for the next year.
RAM processes annual applications for cooperatives and individual
QS holders before issuing IFQ and IPQ. During this period, RAM reviews
the applications to ensure information is correctly recorded and QS
holder filings are consistent with the applications of cooperatives to
which they belong. Ownership and affiliation information that is part
of or accompanying applications is reviewed to verify cap compliance
and to determine the qualification of applicants to receive Class B IFQ
(as QS holders with affiliations with PQS holders are issued Class A
IFQ up to the amount of IPQ issued to its affiliates). Reconciliation
of these affiliations is necessary to ensure Class A IFQ and Class B
IFQ allocations are correctly apportioned for each recipient, as a
correction of a Class A IFQ issuance may require reissuance of all IFQ
to adjust the proportion of Class A IFQ to Class B IFQ for each
recipient. Reissuance of IFQ would result in additional contracting
costs, and possible changes in associations depending on choices of IFQ
and IPQ holders to maintain the original matches. 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 until issuance of those IFQ and IPQ.
A further complication in the process is that a large number of
applications (about 1/3) are received within just a few days of the
filing deadline. It is also common for RAM to receive duplicate and
triplicate applications, which may contain discrepancies that must be
reconciled with the submitters. Applications must then be compared to
QS and PQS holder files to identify persons who have failed to file by
the application deadline. Each year, about 30 to 40 persons fail to
file applications for IFQ or IPQ, or have issues with their
applications. These persons are sent an Initial Administrative
Determination (IAD) notifying them of either their failure to file or
the discrepancies in their application, and informing them that they
will not receive an annual allocation of IFQ or IPQ. Persons receiving
an IAD may challenge the findings by notifying NMFS of their intent to
appeal within 60 days of the date the IAD is issued.
In the event of an appeal, NMFS upholds the rights of a party to an
annual allocation by holding the contested amount of IFQ or IPQ
(whichever is the case) until NMFS reaches a Final Agency Action. At
times, NMFS is able to reach Final Agency Action prior to the agency's
issuance of IFQ and IPQ, thereby allowing the agency to either issue
IFQ or IPQ to the successful appellant, or deny issuance to the
unsuccessful appellant and re-calculate the amount of IFQ and IPQ to
the other eligible applicants. However, if NMFS is unable to reach
Final Agency Action prior to the agency's issuance of IFQ and IPQ, then
NMFS continues to hold the contested amount of IFQ or IPQ, but issues
IFQ and IPQ to the other eligible applicants. If the quota in question
is either Class A IFQ or IPQ, then holding that quota could cause a
mismatch in those pools with a portion of the corresponding pool
rendered unusable. For example, if NMFS does not issue 100 pounds of
Class A IFQ, then 100 pounds of IPQ would typically be available for
use, but under the current regulations, they cannot be used due to the
withheld IFQ. Most quota holders who are denied annual allocations by
RAM for failing to submit a timely application typically do not appeal
the denial, or in some cases they appeal, but do not prevail. However,
regardless of the outcome, due to the length and rigor of the appeal
process, it is almost impossible for NMFS to reach Final Agency Action
prior to agency issuance of IFQ and IPQ to eligible applicants. When
appellants prevail, issuance of the IFQ or IPQ typically occurs after
the fishing season has opened and after the IFQ/IPQ matching period has
occurred.
To address these timing issues, the Council recommended and NMFS
proposes three modifications to the current regulations: (1) Move the
IFQ, IPQ and cooperative application deadline to June 15 from the
current date of August 1; (2) reduce, from 60 days to 30 days, the
amount of time in which to file an appeal of an initial administrative
determination (IAD) that denies an allocation of IFQ or IPQ for failure
to submit a timely application; and (3) provide that an applicant's
proof of timely filing would create an explicit regulatory presumption
of timely filing.
The first measure would provide substantially more time (an
additional 45 calendar days) between the application deadline and
issuance of quota to address disputes and possibly reach final agency
action on allocations of IFQ or IPQ. If NMFS could finalize its
decisions regarding allocations of IFQ or IPQ prior to agency issuance
of quota, the potential for unusable quota would be reduced. Although
not a factor at the time the Council recommended moving the application
deadline to June 15, the proposed change to the application deadline
also would accommodate a recent change by the State of Alaska to the
start of the Aleutian Islands golden king crab fishery. The State moved
the season opening date for this fishery to August 1 from August 15.
Because this fishery has very few QS holders, RAM does not need much
time to process applications between the application deadline and
agency issuance of IFQ and IPQ.
Because NMFS does not process transfers of QS or PQS during the
time when NMFS is processing applications, the proposed June 15
application deadline would impose a restriction on QS and PQS holders.
It would increase the amount of time during which the transfer of
shares would be suspended, from June 15, rather than August 1, until
NMFS issues IFQ or IPQ for that crab fishery, or until the State of
Alaska announces that the crab fishery will not open for that crab
fishing year. Moving the deadline to June 15 would create a period of
approximately three and one-half months during which NMFS would not
process transfers. However, the Council and NMFS determined that this
period of time would have a minimal effect on fishery participants,
since most CR Program fisheries are not open during this period. Also,
persons wishing to transfer QS or PQS can agree to transfers that would
be processed by NMFS after IFQ and IPQ is issued. Thereby, getting
around the time during which the transfers are suspended.
The second measure would reduce the amount of time to appeal IADs
that deny an allocation of IFQ or IPQ for failure to submit a timely
application from 60 days to 30 days. Under the
[[Page 77435]]
current regulations, individuals have 60 days to appeal any decision of
the agency, including decisions to withhold IFQ or IPQ. The result is
that the time period to appeal usually lasts until shortly after the
date on which NMFS issues IFQ and IPQ. Even if these appeals are
prioritized, appeals can take several weeks to months to be resolved.
Consequently, unless a QS or PQS holder chooses not to contest NMFS's
decision to reject the application for IFQ or IPQ, there will likely be
IFQ and IPQ withheld to satisfy due process requirements and to cover
any finding in favor of the appellant. Additionally, depending on the
timing, a successful appeal may result in NMFS issuing IFQ/IPQ after
the start of, or late into, the crab fishing season for that fishery.
The shorter appeal period and earlier application deadline could also
allow for the resolution of appeals before or early in the fishing
season thereby minimizing disruption to fishing operations.
The Council determined and NMFS agrees that a reduction in time to
appeal from 60 days to 30 days for this type of decision would not
treat the quota shareholder unfairly. NMFS makes every effort to ensure
that participants receive notice of application deadlines and,
typically, the administrators attempt to locate individuals failing to
apply to ensure that failure is intentional. The issue in this type of
appeal is whether the quota shareholder submitted a timely application;
it is not whether a quota shareholder meets standards for initial
eligibility to receive quota share. The shorter appeal period would
apply only to IADs that deny an allocation of IFQ or IPQ for failure to
submit a timely application and is intended to reduce the portions of
the IFQ and IPQ pools that must be reserved by ensuring that
administrators know which QS and PQS holders are disputing a denial,
and possibly allowing for the resolution of appeals before or early in
the season.
This proposed rule also would substitute the appeals process set
forth at Sec. 679.43 with the appeal procedures at 15 CFR part 906.
Under this proposed rule, an applicant would be able to appeal any CR
Program IAD pursuant to the appeal procedures at 15 CFR part 906. NMFS
has established a National Appeals Office (NAO) located at NMFS
Headquarters in Silver Spring, Maryland. In 2014, NMFS published a
final rule implementing the rules of procedure for NAO appeals in 15
CFR part 906. (79 FR 7056, Feb. 6, 2014). The appeal procedures in 15
CFR part 906 are mandatory for appeals in limited access privilege
programs (LAPPs) under section 303A of the Magnuson-Stevens Act. 15 CFR
906.1(b). Section 303A applies only to limited access privilege
programs that were adopted after January 12, 2007, the date of
enactment of the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006. 16 U.S.C. 1853a. The CR Program was
implemented in March 2005; therefore, CR Program appeals are not
required to be heard under the procedural rules at 15 CFR part 906.
NMFS may, however, request that NAO decide appeals in programs where
NAO does not have mandatory jurisdiction. 15 CFR 906.1(d). NMFS
proposes to use NAO for appeals of CR Program IADs and to adopt 15 CFR
part 906 as the procedural rules for CR Program appeals. In the past,
NMFS Alaska Region had its own appeals office and its own procedural
rules for appeal in 50 CFR 679.43. However, NMFS Alaska Region no
longer has its own appeals office and therefore is opting to use the
NAO and the procedural rules for the NAO.
The third measure would provide an individual who possesses proof
of timely filing of an application for IFQ or IPQ the presumption of
having done so in instances where that NMFS has no record of receiving
a complete and timely application. Proof could be in the form of a
registered mail receipt if the application is mailed to NMFS, a
confirmation page if the application is faxed to NMFS, or a delivery
receipt from a commercial carrier. This proposed measure would serve to
remind QS and PQS holders to maintain proof of their timely filing. By
maintaining proof, the applicant may be able to avert a dispute
concerning whether such filing was made; applicants who maintain
adequate records of filing would likely resolve any dispute prior to
receiving an IAD that an application was not filed. If the applicant
filed an appeal, the applicant's documentation of timely filing would
support the appeal and could speed resolution of the appeal.
Revisions to Registered Crab Receiver Reports
As was mentioned in the previous section, the State of Alaska
adjusted the dates of the Aleutian Islands golden king crab season so
that the fishery will now open on August 1 instead of August 15.
Currently, regulations at Sec. 680.5(m) require a RCR that also
operates as a shoreside processor or stationary floating crab processor
and receives and purchases landings of CR Program crab, to submit
annually to NMFS a complete Ex-vessel Volume and Value Report for each
reporting period in which the RCR receives CR Program crab. The current
reporting time begins August 15 and extends through April 30, which
coveres all CR Program crab fishing seasons. If NMFS were to maintain
the same reporting period, it would no longer cover all crab fishing
seasons, and any deliveries of CR Program crab prior to August 15 and
after April 30 would not be included in the report. Therefore, this
proposed rule would change the reporting period to August 1 through May
31 to cover all CR program crab fisheries. The adjusted reporting
period will allow the RCR to capture any deliveries that occur from the
start of the season and any deliveries that occur shortly after the
season has closed. The proposed rule would also adjust the due date for
the report from May 15 to May 31.
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 Amendment 31, the FMP, 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.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by Section 603 of the Regulatory Flexibility Act (RFA) that
describes the economic impact the provisions of Amendment 31 (i.e., C
share acquisition, use, and retention) in this proposed rule, if
adopted, would have on small entities. Copies of the IRFA prepared for
these provisions of Amendment 31 within the proposed rule are available
from NMFS (see ADDRESSES). The IRFA incorporates by reference an
extensive RIR/FRFA prepared for Amendments 18 and 19 to the FMP that
detailed the impacts of the CR Program on small entities.
The IRFA for the Amendment 31 provisions of the proposed action
describes the action, why this action is being proposed, the objectives
and legal basis for the proposed rule, the type and number of small
entities to which the proposed rule would apply, and the projected
reporting, recordkeeping, and other compliance requirements of the
proposed rule. It also identifies any overlapping, duplicative, or
conflicting Federal rules and describes any significant alternatives to
the proposed rule that accomplish the stated objectives of the
Magnuson-Stevens Act and other applicable statutes and that would
minimize any significant adverse
[[Page 77436]]
economic impact of the proposed rule on small entities. A summary of
the RIR/IRFA follows.
To implement Amendment 31, this proposed rule would relax the
eligibility requirements to allow individuals who are currently not
eligible to acquire C shares by transfer to become eligible, for a
transitional period, for such transactions. This action would also
establish minimum participation requirements for C share QS holders to
be eligible to receive an annual allocation of Individual Fishing Quota
(IFQ); establish minimum participation requirements for C share QS
holders to be eligible to retain their C share QS and establish an
administrative process for revocation of an individual's C share QS, if
he or she fails to satisfy the minimum participation requirements;
establish a regulatory mechanism to ensure that three percent of the
total allowable catch (TAC) for each CR Program crab fishery is
allocated as IFQ to holders of C share QS; and remove the prohibition
on leasing C share IFQ.
The entities directly regulated by this action are individuals who
currently hold C share QS, and individuals who were at one time active
in the crab fisheries as captain and crew prior to the implementation
of the CR Program but who are no longer active as captain or crew. The
Small Business Administration defines a small commercial finfish
fishing entity as one that has annual gross sales of less than $19
million; a shellfish fishing small entity is one with less than $5
million fishing operations are small if they have less than $7 million
in gross revenue (78 FR 37398, July 22, 2013).
The IRFA estimates that 179 individuals currently hold C shares. Of
which, 70 are estimated to have been part of the 239 individuals who
received an initial allocation of C shares based on their historical
participation record. The IFRA also estimates that there are 750
individuals who were active in the crab fisheries as captain and crew
prior to the implementation of the CR Program but who are no longer
active as captain or crew; the proposed rule would allow those
individuals to acquire C shares by transfer for a period of four years.
Thus, the IRFA estimates that approximately 1100 individuals (750 who
were active prior to rationalization, 239 who were initial recipients,
and 109 who have since acquired C shares), would be impacted by the
change in the regulations regarding the eligible individuals who would
be able to acquire C shares by transfer in this proposed rule.
Based on the SBA's size standard, the Council and NMFS believe that
all holders of C shares are small entities for purposes of the RFA.
Three alternatives, including the no action alternative, were
considered to relax the eligibility requirements for the acquisition of
C shares by transfer. The first alternative creates eligibility for
entities that received an initial allocation of C shares. The second
alternative creates eligibility for entities with historical
participation in the CR Program fisheries. The Council decided to
select both of the action alternatives to full expand the eligibility
to encapsulate all those entities who had historically participated in
the crab fisheries prior to rationalization. The Council did not
consider further expanding the eligibility to include entities that do
not have any type of historical participation in the crab fisheries,
because the original intent in establishing C shares was to provide an
opportunity for entities with a connection to the crab fisheries,
through participation, to own shares.
This proposed rule contains a provision that no C shares would be
revoked until 5 years after implementation of the amendment to the FMP.
The Council intended that this provision would mitigate negative
effects on individuals whose shares may be revoked by this action. The
Council and NMFS considered two other options to delay revocations.
Under the first, no revocations would have taken place until 5 years
after implementation of the CR Program, which would have been the year
2010. The second option extended the period to 10 years after
implementation of the CR Program, which would have been the year 2015.
The preferred alternative would begin revocations 5 years after this
proposed amendment is implemented. This alternative was selected
because it would provide holders of C shares with certainty about the
rules that will govern C shares and with time to consider business
plans for their C shares. The preferred alternatives give holders of C
shares time to plan whether to meet the new active participation
requirements and retain their C shares or whether to divest their share
holdings.
For the proposed provision requiring active participation to
receive annual IFQ from C shares, the preferred alternative requires
active participation over a 3-year period. For the proposed provision
requiring active participation requirement to retain C shares, the
preferred alternative requires active participation over a 4-year
period. Three categories of alternatives were considered for this
provision: the status quo alternative, which essentially has no active
participation requirement because holders of C shares can and do assign
their shares to cooperatives; alternatives that would require less or
no active participation in the fisheries to maintain C share holdings;
and alternatives that would require greater levels of participation as
crew.
NMFS concluded that the status quo and the alternatives that
require less participation to maintain C share holdings are
inconsistent with the Council's intent to ensure that C shares are held
by individuals who are active in the fisheries and to create a pool of
C shares for use exclusively by individuals who are active in the
fisheries. NMFS examined alternatives that required higher levels of
participation to maintain C share holdings or that required
participation exclusively in CR Program fisheries. NMFS concluded that
these alternatives unduly constrained holders of C shares, given the
fleet consolidation and other changes in crab fishing under the CR
Program. With fewer vessels active in the fisheries, greater
competition for crew jobs is an obstacle to maintaining active
participation in the CR Program fisheries. By allowing individuals to
meet a minimal landing requirement to maintain their active
participation status and by allowing individuals who are initial
recipients of C shares to meet the active participation requirements
through fishing in non-crab commercial fisheries in Alaska, the
preferred alternative would allow individuals to miss some seasons,
when crew jobs may be difficult to secure. NMFS concluded that the
preferred alternative reaches a reasonable balance between alternatives
that would allow extended absences from active participation in the
fisheries and alternatives that would require greater participation in
the CR Program fisheries, an approach which fails to recognize the
nature of the market for employment in the CR Program fisheries.
The Council did not consider an alternative to the regulatory
mechanism to ensure three percent of the TAC for each CR Program
fishery is allocated to holders of C share QS. Under the current
regulations, approximately three percent of the IFQ pool is allocated
as C share IFQ and 97 percent is allocated as owner share IFQ, as is
required by the CR Program. However, with the new active participation
provisions, and the potential for IFQ not to be allocated to entities
which do not meet these provisions, there is a possibility that the C
share IFQ allocation would be reduced. To ensure the C share IFQ pool
remains at its intended levels, the Council requested a mechanism put
in
[[Page 77437]]
place to maintain the C share IFQ pool at three percent of the IFQ
pool, regardless of whether some holders of C share receive their
annual IFQ allocation.
This rule also proposes several regulatory amendments that are not
contained in Amendment 31 to the FMP. Specifically, the proposed rule
would establishes an earlier deadline for filing annual IFQ, individual
processing quota (IPQ), and crab harvesting cooperative IFQ
applications, which would increase the amount of time during which NMFS
would suspend the processing of IFQ and IPQ transfer applications;
shorten the amount of time in which to appeal an initial administrative
determination to withhold issuance of IFQ or IPQ; and provide in the
regulations that an applicant's proof of timely filing for IFQ, IPQ, or
cooperative IFQ would create a presumption of timely filing. Finally,
the proposed rule would revise the reporting period and due date for CR
Program registered crab receiver (RCR) Ex-vessel Volume and Value
Reports.
These provisions would directly regulate holders of QS, PQS and
cooperatives formed under the CR Program. Each of the cooperatives in
the program includes from several to hundreds of QS holders as members
and has revenues in excess of the small entity threshold; however,
during the 2010-2011 fishing season, 64 QS holders elected not to join
cooperatives. These 64 QS holders are all small entities for RFA
purposes.
The IRFA based its estimates of small entities holding PQS on the
number of employees of PQS-holding entities. As of 2011, 21 entities
hold PQS. The IRFA estimated large entities, based on available records
of employment and knowledge of foreign ownership of processing
companies. Of these 21 entities, the IRFA estimated that 10 are large
entities and 11 are small entities for RFA purposes.
The IRFA for this action did not analyze additional alternatives to
the second proposed action, because this proposed action is a technical
change to conform to changes by ADF&G to the Aleutian Islands Golden
King Crab season. The Council did consider whether application
deadlines earlier or later than the preferred alternative would be
appropriate. The IRFA identified the June 15 deadline as the most
practical date. Dates later than June 15 are likely to provide limited
benefit over the current August 1 deadline. Dates later than June 15
are also unlikely to provide a benefit of avoiding withheld IFQ and IPQ
that arise from unresolved administrative determinations of those
allocations. The effects of unissued IFQ and IPQ shares may be more
likely to fall on small entities because small entities may have less
power to gain matching commitments from larger harvesting and
processing interests for use of their Class A IFQ and IPQ to match with
shares held by small entities. Similarly, the shortened 30-day period
for appealing initial administrative determinations to withhold IFQ or
IPQ is likely to have little effect on small entities' decisions
whether to appeal a denial, as the filing of an appeal is a relatively
straightforward process. Small entities may be the beneficiaries of
reduced mismatched IFQ and IPQ that could be avoided through achieving
final agency action earlier.
Collection-of-Information Requirements
This proposed rule contains collection-of-information requirements
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). These requirements have
been submitted to OMB for approval under OMB Control No. 0648-0514.
Public reporting burden per response is estimated to average 2 hours
for the Application for BSAI Crab Eligibility to Receive QS/PQS or IFQ/
IPQ by Transfer; 2.5 hours for Application for Annual Crab Permit IFQ;
2.5 hours for Application for Annual Crab Permit IPQ; 30 minutes for
Application for Converted CPO QS and CPO IFQ; 2.5 hours for Application
for Crab Harvesting Cooperative IFQ Permit; 4 hours for Appeal for
Denial of Application; 2.5 hours for Application for Transfer of Crab
IFQ; 2.5 hours for Application for Transfer of Crab IPQ permit; 2 hours
for the Crab Rationalization Program Registered Crab Receiver Ex-vessel
Volume and Value Report; and 2 hours for Application for Transfer of a
crab QS or PQS including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection information.
Public comment is sought regarding 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.
Send comments on these or any other aspects of the collection of
information, to NMFS (see ADDRESSES) and by email to
[email protected] or fax to 202-395-7285. Notwithstanding any
other provision of the law, no individual is required to respond to,
and no person shall be subject to 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: December 18, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 680 is
proposed to be amended 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. In Sec. 680.4, revise paragraphs (f)(1) and (n)(1)(i), and add
paragraph (q) to read as follows:
Sec. 680.4 Permits.
* * * * *
(f) * * *
(1) A complete application must be received by NMFS no later than
June 15 (or postmarked by this date, if sent via U.S. mail or a
commercial carrier) for the upcoming crab fishing year for which a
person is applying to receive IFQ or IPQ. If a complete application is
not received by NMFS by this date, or postmarked by this date, the
person will not receive IFQ or IPQ for the upcoming crab fishing year.
In the event that NMFS has not received a complete and timely
application by June 15, NMFS will presume that the application was
timely filed if the applicant can provide NMFS with proof of timely
filing.
* * * * *
(n) * * *
(1)(i) A complete application must be received by NMFS no later
than June 15 (or postmarked by this date, if sent via U.S. mail or a
commercial carrier) for the upcoming crab fishing year for which a
person or crab harvesting cooperative is applying to receive converted
CPO QS and the IFQ derived from that converted CPO QS. If a
[[Page 77438]]
complete application is not received by NMFS by this date, or
postmarked by this date, the person or crab harvesting cooperative will
not receive converted CPO QS and the IFQ derived from that converted
CPO QS for the upcoming crab fishing year. In the event that NMFS has
not received a complete and timely application by June 15, NMFS will
presume that the application was timely filed if the applicant can
provide NMFS with proof of timely filing.
* * * * *
(q) Initial administrative determination (IAD). The Regional
Administrator will prepare and send an IAD to the applicant following
the expiration of the 30-day evidentiary period if the Regional
Administrator determines that the information or evidence provided by
the applicant fails to support the applicant's claims and is
insufficient to establish that the applicant meets the requirements, or
if the additional information, evidence, or revised application is not
provided within the time period specified in the letter that notifies
the applicant of his or her 30-day evidentiary period. The IAD will
indicate the deficiencies in the application, including any
deficiencies with the information, the evidence submitted in support of
the information, or the revised application. The IAD will also indicate
which claims cannot be approved based on the available information or
evidence. An applicant who receives an IAD may appeal under the appeals
procedures set forth at 15 CFR part 906. If an applicant appeals an IAD
denying an Application for Annual Crab IFQ, IPQ, or harvesting
Cooperative IFQ Permit because the application was not timely filed,
the appeal must be filed within 30 days after the date the IAD is
issued. An applicant who avails himself or herself of the opportunity
to appeal an IAD will not receive crab IFQ or IPQ until after the final
resolution of that appeal in the applicant's favor.
0
3. In Sec. 680.5, revise paragraphs (m)(2) and (3) as follows:
Sec. 680.5 Recordkeeping and reporting (R&R).
* * * * *
(m) * * *
(2) Reporting period. The reporting period of the CR RCR Ex-vessel
Volume and Value Report shall extend from August 1 through May 31 of
the following year, inclusive.
(3) Due Date. A complete CR RCR Ex-vessel Volume and Value Report
must be received by the Regional Administrator no later than May 31 of
the reporting period in which the RCR received CR crab.
* * * * *
0
4. In Sec. 680.21, revise paragraphs (b)(1), (b)(2) introductory text,
and (d)(1) as follows:
Sec. 680.21 Crab harvesting cooperatives.
* * * * *
(b) * * *
(1) June 15 application deadline. A complete application must be
received together with a signed annual application for crab IFQ/IPQ
permit forms of all members of the crab harvesting cooperative, by NMFS
no later than June 15 (or postmarked by this date, if sent via U.S.
mail or a commercial carrier) for the upcoming crab fishing year for
which the crab harvesting cooperative is applying to receive IFQ. If a
complete application is not received by NMFS by this date, or
postmarked by this date, the crab harvesting cooperative will not
receive IFQ for the upcoming crab fishing year. In the event that NMFS
has not received a complete and timely application by June 15, NMFS
will presume that the application was timely filed if the applicant can
provide NMFS with proof of timely filing.
(2) Contents. A complete application must contain the following
information:
* * * * *
(d) * * *
(1) Transfer of QS. A member of a crab harvesting cooperative may
acquire or divest QS at any time in accordance with the transfer
procedures in Sec. 680.41. However, transfers of QS that occur after
the June 15 deadline for crab harvesting cooperative IFQ permit
applications will not be reflected in the type or amount of IFQ permit
issued to the crab harvesting cooperative for that crab fishing year.
* * * * *
0
5. In Sec. 680.40,
0
a. Revise paragraph (g);
0
b. Revise paragraph (h)(1); and
0
c. Add paragraph (m) to read as follows:
Sec. 680.40 Crab Quota Share (QS), Processor QS (PQS), Individual
Fishing Quota (IFQ), and Individual Processor Quota (IPQ) Issuance.
* * * * *
(g) Annual allocation of IFQ.
(1) General. IFQ is assigned based on the underlying QS. Except for
CVC and CPC QS permit holders who fail to meet the participation
requirements at paragraph (g)(2) of this section, the Regional
Administrator shall assign crab IFQs to each person who holds QS and
submits a complete annual application for crab IFQ/IPQ permit as
described under Sec. 680.4. IFQ will be assigned to a crab QS fishery
with the appropriate regional designation, QS sector, and IFQ class.
This amount will represent the maximum amount of crab that may be
harvested from the specified crab QS fishery by the person to whom it
is assigned during the specified crab fishing year, unless the IFQ
assignment is changed by the Regional Administrator because of an
approved transfer, revoked, suspended, or modified under 15 CFR part
904.
(2) Eligibility for CVC and CPC IFQ. For each crab fishing year
after June 30, 2018, CVC and CPC QS will yield IFQ if the individual
holding that CVC or CPC QS permit:
(i) Has participated as crew in at least one delivery of crab in
any CR crab fishery during the three crab fishing years preceding the
crab fishing year for which the individual is filing an annual crab IFQ
permit application; or
(ii) Was an initial recipient of CVC or CPC QS and participated as
crew in at least 30 days of fishing in a commercial fishery managed by
the State of Alaska or in a U.S. commercial fishery in the U.S.
Exclusive Economic Zone off Alaska during the three crab fishing years
preceding the crab fishing year for which the individual is filing an
annual crab IFQ permit application. Individuals may combine
participation as crew in State and federal commercial fisheries to meet
this requirement.
(3) Withholding of CVC or CPC IFQ. Beginning July 1, 2018, the
Regional Administrator will withhold issuance of CVC 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.
(i) Notice of C Share IFQ Withholding. The Regional Administrator
will issue a Notice of C Share IFQ Withholding to an individual holding
CVC or CPC QS if, after reviewing the CVC or CPC QS holder's
Applications for Annual Crab IFQ Permit, the Regional Administrator
determines that the CVC or CPC QS holder has failed to meet the
participation requirements in paragraph (g)(2) of this section. A CVC
or CPC QS holder who receives such a Notice of C Share IFQ Withholding
will have 30 days to provide the Regional Administrator with
information demonstrating participation as crew that meets the
requirements of paragraph (g)(2) of this section.
(ii) Initial administrative determination (IAD). The Regional
[[Page 77439]]
Administrator will prepare and send an IAD to the CVC or CPC QS holder
following the expiration of the 30-day evidentiary period if the
Regional Administrator determines that the information or evidence
provided by the CVC or CPC QS holder fails to demonstrate participation
as crew and is insufficient to rebut the information included in the
CVC or CPC QS holder's Applications for Annual Crab IFQ Permit, or if
the additional information or evidence is not provided within the time
period specified in the Notice of C Share IFQ Withholding. The IAD will
explain the basis for the withholding of IFQ. A CVC or CPC QS holder
who receives an IAD withholding IFQ may appeal under the appeals
procedures set forth at 15 CFR part 906. A CVC or CPC QS holder who
avails himself or herself of the opportunity to appeal an IAD
withholding IFQ will not receive crab IFQ until after the final
resolution of that appeal in the QS holder's favor.
(h) * * *
(1) General. (i) The annual allocation of IFQ to any person (p) in
any crab QS fishery (f) will be based on the TAC of crab for that crab
QS fishery less the allocation to the Western Alaska CDQ Program (``CDQ
Reserve'') and Western Aleutian Islands golden king crab fishery.
Expressed algebraically, the annual IFQ allocation formula is as
follows:
(A) IFQ TACf = TACf - (CDQ Reservef +
Allocation for the Western Aleutian Island golden king crab fishery)
(B) IFQpf = IFQ TACf x (QSpf/QS
poolf)
(ii) CVO, CPO, CVC, and CPC IFQ. Each year, 3 percent of the IFQ
TACf will be allocated as CVC IFQ or CPC IFQ and 97 percent
of the IFQ TACf will be allocated as CVO IFQ or CPO IFQ.
Expressed algebraically, the formulas for the annual IFQ allocations
are as follows:
(A) CVC/CPC IFQf = IFQ TACf x 0.03
(B) CVO/CPO IFQf = IFQ TACf x 0.97
* * * * *
(m) Participation requirements for retention of CVC QS and CPC QS.
(1) Beginning July 1, 2019, 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.
(2) An individual issued a CVC QS or CPC QS permit must demonstrate
to NMFS that he or she:
(i) Has participated as crew in at least one delivery of crab in
any CR crab fishery during the previous four consecutive crab fishing
years; or
(ii) Was an initial recipient of CVC QS or CPC QS and participated
as crew in at least 30 days of fishing in a commercial fishery managed
by the State of Alaska or in a U.S. commercial fishery in the U.S.
Exclusive Economic Zone off Alaska during the previous four consecutive
crab fishing years. Individuals may combine participation as crew in
State and Federal commercial fisheries to meet this requirement.
(3) An individual issued a CVC QS or CPC QS permit may include
information demonstrating compliance with the participation
requirements in paragraph (m)(2) of this section with the individual's
annual Application for Crab IFQ.
(4) If an individual issued a CVC QS or CPC QS permit fails to meet
the participation requirements in paragraph (m)(2) of this section,
NMFS will revoke all of the individual's CVC QS or CPC QS in accordance
with 50 CFR 680.43.
0
6. In Sec. 680.41, revise paragraphs (b)(1), (c)(1)(vii) and (viii),
(c)(2)(ii)(C), and (e)(3) to read as follows:
Sec. 680.41 Transfer of QS, PQS, IFQ and IPQ.
* * * * *
(b) * * *
(1) Application. An application is required to transfer any amount
of QS, PQS, IFQ, or IPQ. A transfer application will not be approved
until the necessary eligibility application has been submitted and
approved by NMFS in accordance with paragraph (c) of this section. The
Regional Administrator will not approve any transfers of QS, PQS, IFQ,
or IPQ in any crab QS fishery from June 15 until either the date of the
issuance of IFQ or IPQ for that crab QS fishery, or the date on which
the State of Alaska announces that a crab QS fishery will not open for
that crab fishing year.
* * * * *
(c) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
Quota type Eligible person Eligibility requirements
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(vii) CVC or CPC QS..................... An individual.............. (A) Who is a U.S. citizen with:
(1) At least 150 days of sea time as
part of a harvesting crew in any U.S.
commercial fishery, and
(2) Recent participation as crew in at
least one delivery of crab in a CR
crab fishery in the 365 days prior to
submission of the application for
eligibility,
(B) From [EFFECTIVE DATE OF FINAL RULE
IMPLEMENTING AMENDMENT 31] until [DATE 4
YEARS AFTER EFFECTIVE DATE OF FINAL RULE
IMPLEMENTING AMENDMENT 31], CVC or CPC
QS also may be transferred to an
individual who is a U.S. citizen with:
(1) At least 150 days of sea time as
part of a harvesting crew in any U.S.
commercial fishery, and
(2) Who either
(i) Received an initial allocation of
CVC or CPC QS; or
(ii) Participated in at least one
delivery of crab in a CR crab fishery
in any 3 of the 5 crab fishing years
starting on July 1, 2000, through
June 30, 2005.
(viii) CVC or CPC IFQ................... All eligible individuals According to the requirements in
for CVC or CPC QS. paragraph (c)(1)(vii) of this section.
----------------------------------------------------------------------------------------------------------------
* * * * *
(2) * * *
(ii) * * *
(C) Eligibility for CVC or CPC QS/IFQ. Indicate (YES or NO) whether
this application is intended for a person who wishes to buy CVC or CPC
QS/IFQ. If YES, provide evidence demonstrating that the applicant meets
the criteria set forth in paragraph (c)(1)(vii) of this section 680.41.
Acceptable evidence is limited to an ADF&G fish ticket imprinted with
the applicant's State of Alaska permit card and signed by the
applicant, an affidavit from the vessel owner, or a signed receipt for
an IFQ crab landing on which the applicant
[[Page 77440]]
was acting as the permit holder's crab IFQ hired master.
* * * * *
(e) * * *
(3) IFQ derived from CVC QS or CPC QS. (i) IFQ derived from CVC or
CPC QS may be transferred by lease on an annual basis.
* * * * *
0
7. Revise Sec. 680.43 to read as follows:
Sec. 680.43 Revocation of CVC and CPC QS.
(a) Beginning July 1, 2019, 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.
(b) Notice of C Share QS Inactivity. The Regional Administrator
will issue a Notice of C Share QS Inactivity to an individual holding
CVC or CPC QS if, after reviewing the CVC or CPC QS holder's
Applications for Annual Crab IFQ Permit, the Regional Administrator
determines that the CVC or CPC QS holder has failed to meet the
participation requirements in Sec. 680.40(m). A CVC or CPC QS holder
who receives such a Notice will have 60 days to provide the Regional
Administrator with information demonstrating participation as crew that
meets the requirements of Sec. 680.40(m).
(c) Initial administrative determination (IAD). The Regional
Administrator will prepare and send an IAD to the CVC or CPC QS holder
following the expiration of the 60-day evidentiary period if the
Regional Administrator determines that the information or evidence
provided by the CVC or CPC QS holder fails to demonstrate participation
as crew and is insufficient to rebut the information included in the
CVC or CPC QS holder's Applications for Annual Crab IFQ Permit, or if
the additional information or evidence is not provided within the time
period specified in the Notice of C Share QS Inactivity. The IAD will
explain the basis for the revocation determination. A CVC or CPC QS
holder who receives an IAD for revocation may appeal under the appeals
procedures set forth at 15 CFR part 906. A CVC or CPC QS holder who
avails himself or herself of the opportunity to appeal an IAD for
revocation will not receive crab IFQ or IPQ until after the final
resolution of that appeal in the QS holder's favor.
[FR Doc. 2014-30155 Filed 12-23-14; 8:45 am]
BILLING CODE 3510-22-P