Final Regulatory Impact Review for Regulatory Amendment 48 to the Bering Sea/Aleutian Islands King and Tanner Crabs Fishery Management Plan for Community Development Quota Program Ownership Attribution
Analysis of an action to revise regulations and the Crab FMP for consistency with the Magnuson-Stevens Act
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires the North Pacific Fishery Management Council (Council) and the National Marine Fisheries Service (NOAA Fisheries) to establish limitations on holding and use of limited access privileges (LAPs) to prevent the excessive consolidation of privileges. In response to this direction, the Council has developed different excessive share caps in each of the LAP programs implemented in Alaska’s fisheries.
NOAA Fisheries implemented the excessive share regulations for two LAP programs relevant to this analysis: the American Fisheries Act (AFA) Program in 2002 and for the Crab Rationalization Program (CR Program) in 2005. Based on direction provided by Congress in the Magnuson-Stevens Act and by the Council in developing the AFA and CR Programs, the regulations originally specified that NMFS will use two different methods to attribute holding and use of harvesting and processing privileges under the AFA and CR Programs. One method, called the “10-percent” rule, attributes 100 percent holding or use of LAPs to a person if that person owns or controls at least 10 percent equity in the QS holding entity. The second method is the “individual and collective” rule. Under the individual and collective rule, a person is attributed holding or use of LAPs proportionally to that person’s ownership or control in other entity. Thus, under an excessive share limit, the individual and collective rule would allow a person to hold or use more LAPs than if the person was evaluated using the 10-percent rule.
In addition to their allocations under the Community Development Quota (CDQ) Program, CDQ groups participate in other LAP programs, including the AFA Program and the CR Program, by purchasing quota shares or through ownership of vessels and processors that participate in these fisheries. Prior to the 2006 revision of the Magnuson-Stevens Act, NOAA Fisheries used the 10-percent rule for CDQ groups for use caps for harvesting and processing privileges in the AFA Program and for holding and use caps for processing privileges in the CR Program. In 2006, the Magnuson-Stevens Act was revised to direct that CDQ groups be subject to excessive share ownership, harvesting, or processing limitations using the individual and collective rule to attribute ownership and control for determining the holding and use of LAPs.
Since the 2006 amendment to the Magnuson-Stevens Act, NOAA Fisheries has implemented the proportional ownership attribution method for CDQ groups to monitor excessive share caps in the AFA Program and the CR Program; however, the regulations for the AFA, the CR Program, and the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP) have not been revised to reflect this statutory change. This action would revise these regulations and the Crab FMP for consistency with the Magnuson-Stevens Act and current practice.