[Federal Register Volume 82, Number 148 (Thursday, August 3, 2017)]
[Proposed Rules]
[Pages 36111-36113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16376]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 680
RIN 0648-BG84
Fisheries of the Exclusive Economic Zone off Alaska; Bering Sea
and Aleutian Islands Management Area; Bering Sea and Aleutian Islands
Crab Rationalization Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability of fishery management plan amendment;
request for comments.
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SUMMARY: The North Pacific Fishery Management Council (Council)
submitted Amendment 48 to the Fishery Management Plan for Bering Sea/
Aleutian Islands King and Tanner Crabs (Crab FMP) to NMFS for review.
If approved, Amendment 48 would revise the Crab FMP to specify how NMFS
determines the amount of limited access privileges held and used by
groups in the Western Alaska Community Development Quota Program (CDQ
Program) for the purposes of managing the excessive share limits under
the Crab Rationalization (CR) Program. Amendment 48 is necessary to
make the Crab FMP consistent with Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens
[[Page 36112]]
Act) requirements and NMFS' current method of managing excessive share
limits for CDQ groups in the CR Program. This action is intended to
promote the goals and objectives of the Magnuson-Stevens Act, the Crab
FMP, and other applicable laws.
DATES: Submit comments on or before October 2, 2017.
ADDRESSES: Submit comments on this document, identified by NOAA-NMFS-
2017-0038, by any one of the following methods.
Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0038, 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 be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Electronic copies of the Regulatory Impact Review (RIR) and the
Categorical Exclusion prepared for Amendment 48 may be obtained from
http://www.regulations.gov or from the NMFS Alaska Region Web site at
http://alaskafisheries.noaa.gov.
The Environmental Impact Statement (EIS), RIR, Final Regulatory
Flexibility Analysis, and Social Impact Assessment prepared for the CR
Program are available from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Keeley Kent, 907-586-7228.
SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Act requires that each
regional fishery management council submit any fishery management plan
amendment it prepares to NMFS for review and approval, disapproval, or
partial approval by the Secretary of Commerce. The Magnuson-Stevens Act
also requires that NMFS, upon receiving a fishery management plan
amendment, immediately publish a notice in the Federal Register
announcing that the amendment is available for public review and
comment. This notice announces that proposed Amendment 48 to the Crab
FMP is available for public review and comment.
NMFS manages the king and Tanner crab fisheries in the U.S.
exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI)
under the Crab FMP. The Council prepared, and NMFS approved, the Crab
FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et
seq. Regulations governing U.S. fisheries and implementing the Crab FMP
appear at 50 CFR parts 600 and 680.
The CR Program was implemented on April 1, 2005 (70 FR 10174). The
CR Program established a limited access privilege program for nine crab
fisheries in the BSAI and assigned quota share (QS) to persons based on
their historic participation in one or more of those nine BSAI crab
fisheries during a specific period. Each year, a person who holds QS
may receive an exclusive harvest privilege for a portion of the annual
total allowable catch. This annual exclusive harvest privilege is
called individual fishing quota (IFQ).
NMFS also issued processor quota share (PQS) under the CR Program.
Each year PQS yields an exclusive privilege to process a portion of the
IFQ in each of the nine BSAI crab fisheries. This annual exclusive
processing privilege is called individual processor quota (IPQ). Only a
portion of the QS issued yields IFQ that is required to be delivered to
a processor with IPQ; this IFQ is called Class A IFQ. Each year there
is a one-to-one match of the pounds of Class A IFQ with the total
pounds of IPQ issued in each crab fishery.
The CDQ Program was established by the Council and NMFS in 1992,
and in 1996, authorization for the Program was incorporated into the
Magnuson-Stevens Act. The purpose of the CDQ Program is (1) to provide
eligible western Alaska villages with the opportunity to participate
and invest in fisheries in the BSAI, (2) to support economic
development in western Alaska, (3) to alleviate poverty and provide
economic and social benefits for residents of western Alaska, and (4)
to achieve sustainable and diversified local economies in western
Alaska (16 U.S.C. 1855(i)(1)(A)).
Section 305(i) of the Magnuson-Stevens Act describes the CDQ
Program and identifies the villages eligible to participate in the CDQ
Program through the six entities specified in Section 305(i)(1)(D) as
the CDQ groups (16 U.S.C. 1855(i)). Regulations at 50 CFR 679.2 define
the term ``CDQ group'' as an entity identified as eligible for the CDQ
Program under 16 U.S.C. 1855(i)(1)(D). The CDQ Program receives annual
apportionments of total allowable catches (TACs) for a variety of
commercially valuable species in the BSAI groundfish, crab, and halibut
fisheries, which are in turn allocated among the six different CDQ
groups. In addition to their allocations under the CDQ Program, CDQ
groups participate in the AFA and CR Program fisheries by purchasing QS
and PQS or through ownership of vessels or processors that participate
in the fisheries. The CDQ groups have purchased both QS and PQS under
the CR Program.
Section 303A(c)(5)(D) of the Magnuson-Stevens Act requires the
Council and NMFS to establish excessive share limits for limited access
privilege (LAP) programs to prevent excessive accumulation of
privileges by participants in the LAP programs (16 U.S.C.
1853a(c)(5)(D)). The intent of these limits is to prevent excessive
consolidation in the harvesting and processing sectors in order to
maintain an appropriate distribution of economic and social benefits
for fishery participants and communities. Because determination of
excessive shares must consider the specific circumstances of each
fishery, the Council has implemented different excessive share limits
in the LAP programs in Alaska's fisheries, including the CR Program.
The excessive share limit regulations prohibit a person from
holding and using more than a specific portion of the LAPs allocated
under the CR Program. Under 50 CFR 679.2, ``person'' includes
individuals, corporations, partnerships, associations, and other non-
individual entities. To monitor holdings and use of LAPs, NMFS
determines what portion of a program's harvesting and processing
privileges a person holds and uses to ensure that no person holds or
uses more privileges than authorized by the excessive share limit
established for each LAP.
NMFS determines a person's holding and use of a LAP by summing (1)
the amount directly held and used by that person, and (2) the amount
held and used by that person indirectly through an ownership interest
in or control of another entity that also holds and uses the LAP.
Businesses that hold and use LAPs in the CR Program are often composed
of multiple owners that have ownership interests in multiple fishing
businesses. In cases where a LAP is held by a business entity with more
than one owner, NMFS applies the excessive share limits (also called
holding and use limits or caps) to each entity that has an
[[Page 36113]]
ownership interest in or control of the LAP to monitor whether those
entities each exceed the established caps. Ownership attribution refers
to the method NMFS uses to assess the relationships between different
entities that participate in LAP programs.
NMFS uses two ownership attribution methods to assess these
relationships. The two methods for attribution are the ``individual and
collective'' rule and the ``10-percent rule.'' Under the individual and
collective rule, a person is attributed holding or use of LAPs
proportionally to their ownership in or control of other entities that
hold or use LAPs. For example, if Company A owns or controls 15 percent
of Company B that holds LAPs, Company A would be attributed 15 percent
of the holding or use of those LAPs. In contrast, under the 10-percent
rule, a person is attributed 100 percent of an entity's LAPs if that
person owns or otherwise controls ten percent or more of that entity.
Thus, if Company A owns or controls 10 percent or more of Company B,
then all of Company B's holdings of LAPs are attributed to Company A.
The individual and collective rule is less restrictive than the 10-
percent rule because a person is only attributed holding or use in
proportion to how much that person owns or controls of other entities,
rather than attributing 100 percent of the other entity's LAP holdings
once the 10-percent threshold is met.
When the Council recommended the CR Program, it expressed concern
about the potential for excessive consolidation of QS and PQS, in which
too few persons control all of the QS or PQS and the resulting annual
IFQ and IPQ. The Council determined that excessive consolidation could
have adverse effects on crab markets, price setting negotiations
between harvesters and processors, employment opportunities for
harvesting and processing crew, tax revenue to communities in which
crab are landed, and other factors considered and described in the CR
Program EIS. To address this concern, the CR Program includes limits on
the amount of QS and PQS that a person can hold and the amount of IFQ
and IPQ that a person can use. To facilitate the monitoring of these
limits, NMFS requires holders of QS and PQS that are non-individual
entities to annually submit information on their ownership structure,
down to the individual level, and on each owner's percentage holdings
in the entity. Holding and use limits for QS and IFQ vary across CR
Program fisheries because of different fleet characteristics and the
differences in historic dependency of participants on the different
crab fisheries. Under 50 CFR 680.42(a)(2), NMFS applies holding and use
limits on QS and IFQ using the individual and collective rule for all
participants, including CDQ groups, as was recommended by the Council
for monitoring harvesting privileges.
For processing privileges, the CR Program limits a person to
holding no more than 30 percent of the PQS initially issued in the
fishery, and to using no more than the amount of IPQ resulting from 30
percent of the PQS initially issued in a given fishery, with a limited
exemption for persons receiving more than 30 percent of the initially-
issued PQS (50 CFR 680.42(b)). The rationale for holding and use limits
is described in the CR Program EIS and the final rule implementing the
CR Program (70 FR 10174, 10175; March 2, 2005). Under 50 CFR
680.42(b)(3), NMFS applies holding and use limits on PQS and IPQ using
the 10-percent rule, as was recommended by the Council and as was
addressed in the preamble to the proposed rule for the CR Program (69
FR 63200, 63219 & 63226; October 29, 2004).
When the CR Program was implemented, NMFS used the 10-percent rule
to monitor PQS and IPQ holding and use limits in the CR Program for all
program participants, including CDQ groups. In 2006, the Coast Guard
and Maritime Transportation Act of 2006 (Public Law 109-241; the Coast
Guard Act) revised the Magnuson-Stevens Act to specify that CDQ groups
would be subject to excessive share ownership, harvesting, or
processing limitations only to the extent of their proportional
ownership (16 U.S.C. 1855(i)(1)(F)(i)). Since the 2006 amendment to the
Magnuson-Stevens Act, NMFS has used the individual and collective rule
for CDQ groups to monitor excessive share limits for CDQ groups in the
CR Program. The individual and collective rule allows CDQ groups to
hold and use more PQS and IPQ than non-CDQ persons because non-CDQ
persons will remain subject to the more restrictive ownership
attribution method (the 10-percent rule).
Amendment 48 would revise the Crab FMP to make it consistent with
NMFS' ownership attribution process for calculating holding and use of
PQS and IPQ to monitor excessive share limits for CDQ groups in the CR
Program. Amendment 48 would revise Section 2.7.1 under Chapter 11 of
the FMP in the Processing Sector Elements section of the Crab FMP to
specify that PQS and IPQ holding and use caps for CDQ groups are
applied using the individual and collective rule, without continuing to
use the 10-percent rule for determining whether an entity is included
in calculating a CDQ group's holding and use caps. For example, if a
CDQ group holds 15 percent of a company that holds or uses PQS or IPQ,
Amendment 48 to the Crab FMP would clarify that the CDQ group would be
attributed 15 percent of the holding or use of that PQS or IPQ.
Amendment 48 would not revise the Crab FMP for the QS and IFQ holding
and use limits under the CR Program because NMFS uses the individual
and collective rule to monitor QS and IFQ holding and use limits for
all program participants, including CDQ groups. NMFS has used the
individual and collective rule to determine holding and use of PQS and
IPQ by CDQ groups since enactment of the Coast Guard Act; however, NMFS
has not revised the Crab FMP to reflect this statutory change or NMFS'
current process.
Amendment 48 would benefit CDQ groups and the public by revising
the Crab FMP for consistency with the Magnuson-Stevens Act. Amendment
48 would also update the Crab FMP to specify the method NMFS currently
uses to determine holding and use of processing privileges by CDQ
groups for purposes of monitoring excessive share limits for the CR
Program.
Public comments are solicited on proposed Amendment 48 to the Crab
FMP through the end of the comment period (see DATES). NMFS intends to
publish in the Federal Register and seek public comment on a proposed
rule that would implement Amendment 48, following NMFS' evaluation of
the proposed rule under the Magnuson-Stevens Act. Public comments on
the proposed rule must be received by the end of the comment period on
Amendment 48 to be considered in the approval/disapproval decision on
Amendment 48. All comments received by the end of the comment period on
Amendment 48, whether specifically directed to the amendment or the
proposed rule will be considered in the amendment approval/disapproval
decision. Comments received after that date will not be considered in
the approval/disapproval decision on the amendment. To be
considered,comments must be received, not just postmarked or otherwise
transmitted, by the last day of the comment period.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 31, 2017.
Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 2017-16376 Filed 8-2-17; 8:45 am]
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