[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Rules and Regulations]
[Pages 30319-30320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11780]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 080516675-8677-01]
RIN 0648-AW88


Fisheries of the Exclusive Economic Zone Off Alaska; Allocating 
Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources; 
Correction

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION:  Final rule; correcting amendment.

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SUMMARY:  NMFS issues this final rule, a correcting amendment to the 
regulations governing the Bering Sea and Aleutian Islands crab 
fisheries. This action is necessary to correct a rule that was 
published on March 2, 2005 (70 FR 10173). This final rule is intended 
to promote the goals and objectives of the Fishery Management Plan for 
Bering Sea/Aleutian Islands King and Tanner Crabs, the Magnuson-Stevens 
Fishery Conservation and Management Act, and other applicable law.

DATES:  Effective June 26, 2008.

FOR FURTHER INFORMATION CONTACT:  Glenn Merrill, 907-586-7228.

SUPPLEMENTARY INFORMATION: Bering Sea and Aleutian Islands (BSAI) crab 
fisheries are managed under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) in 
accordance with the Fishery Management Plan for Bering Sea/Aleutian 
Islands King and Tanner Crabs (FMP). In January 2004, the U.S. Congress 
amended section 313(j) of the Magnuson-Stevens Act through the 
Consolidated Appropriations Act of 2004 (Public Law 108-199, section 
801). As amended, section 313(j)(1) requires the Secretary of Commerce 
to approve and implement by regulation the Crab Rationalization Program 
(Program), as it was approved by the North Pacific Fishery Management 
Council (Council) between June 2002 and April 2003, and all trailing 
amendments, including those reported to Congress on May 6, 2003. In 
June 2004, the Council consolidated its actions on the Program into one 
Council motion, which is contained in its entirety in Amendment 18 to 
the FMP. Additionally, in June 2004, the Council developed Amendment 19 
to the FMP, which represents minor changes necessary to implement the 
Program.
    The Notice of Availability for these amendments was published in 
the Federal Register on September 1, 2004 (69 FR 53397). NMFS published 
a proposed rule to implement Amendments 18 and 19 on October 29, 2004 
(69 FR 63200). NMFS approved Amendments 18 and 19 on November 19, 2004. 
NMFS published a final rule to implement Amendments 18 and 19 on March 
2, 2005 (70 FR 10174). Shortly thereafter, NMFS also published a final 
rule (March 18, 2005; 70 FR 13097) to correct OMB control numbers 
provided in the March 2, 2005 final rule, and a second final rule (June 
8, 2005; 70 FR 33390) to ensure that the March 2, 2005 final rule 
conforms to the statutory requirements and intent of the Program, to 
provide clarification regarding the Program's regulatory requirements, 
and to correct minor technical errors.

Need for Corrections

    With this correction, NMFS seeks to ensure that the March 2, 2005 
final rule conforms to the statutory requirements and intent of the 
Program. The March 2, 2005 final rule implemented regulations that 
establish the maximum amount of individual processing quota (IPQ) that 
may be issued in the Bristol Bay red king crab Paralithodes 
camtschatica (BBR) quota share (QS) fishery, and the Bering Sea snow 
crab Chionoecetes opilio (BSS) QS fishery. However, NMFS recently 
discovered that these regulations are not consistent with the statutory 
requirements of the Program.
    Section 3.4 of Amendment 18 to the FMP limited the maximum amount 
of

[[Page 30320]]

IPQ that could be issued in the BBR and BSS QS fisheries. That section, 
which the Secretary is required to approve and implement, states that 
``[t]he amount of IPQ in any year shall not exceed the percentage of 
the TAC [total allowable catch] for crab as follows: For opilio [BSS 
crab QS fishery], IPQ percentage times a TAC (after CDQ [community 
development quota] allocations) of 175 million pounds. For Bristol Bay 
red king crab [BBR crab QS fishery], IPQ percentage times a TAC (after 
CDQ allocations) of 20 million pounds.'' The ``IPQ percentage'' 
referred to in section 3.4 is described in section 2.4.1 of Amendment 
18 as follows: ``90 [percent] of GHL (or TAC) would be issued as IPQs - 
the remaining 10 [percent] would be considered open delivery.'' 
Therefore, to determine the maximum amount of IPQ that can be issued in 
the BBR crab QS fishery according to the procedure established in 
section 3.4 of Amendment 18, 90 percent is multiplied by 20,000,000 
pounds to yield 18,000,000 pounds. Similarly, to determine the maximum 
amount of IPQ that can be issued in the BSS crab QS fishery according 
to the procedure established in section 3.4 of Amendment 18, 90 percent 
is multiplied by 175,000,000 pounds to yield 157,500,000 pounds.
    This calculation is explicitly described and calculated in section 
3.6.2.3 of the Regulatory Impact Review that was prepared for the 
Program. For the BSS crab QS fishery, the option adopted by the Council 
in Amendment 18 to the FMP and approved by the Secretary limits IPQs to 
157.5 million pounds, or 90 percent of 175 million pounds (the 
percentage of the TAC for which IPQs are issued times 175 million 
pounds). In the BBR crab QS fishery, the option adopted by the Council 
in Amendment 18 to the FMP and approved by the Secretary limits IPQs to 
18 million pounds, or 90 percent of 20 million pounds.
    However, the March 2, 2005 final rule implemented regulations at 
Sec.  680.40(j)(3) that incorrectly specified the maximum amount of IPQ 
that would be issued in the BBR and BSS crab QS fisheries as follows: 
``The amount of IPQ issued in any crab fishing year shall not exceed: 
(i) 175,000,000 raw crab pounds (79,378.6 mt) in the BSS crab QS 
fishery; and (ii) 20,000,000 raw crab pounds (9,071.8 mt) in the BBR 
crab QS fishery.'' These regulations are inconsistent with the 
statutory requirement to implement the Council's motion by regulation. 
NMFS is modifying regulations at Sec.  680.40(j)(3) to clarify that the 
amount of IPQ issued in any crab fishing year shall not exceed 
157,500,000 raw crab pounds (71,441.5 mt) in the BSS crab QS fishery, 
and 18,000,000 raw crab pounds (8,164.7 mt) in the BBR crab QS fishery. 
This change is necessary to correctly implement the Council's motion as 
required by section 313(j)(1) of the Magnuson-Stevens Act.

Classification

    The Administrator, Alaska Region, NMFS (Regional Administrator), 
has determined that this final rule is necessary for the conservation 
and management of the BSAI crab fisheries. The Regional Administrator 
also has determined that this final rule is consistent with the 
Magnuson-Stevens Act and other applicable laws. This final rule has 
been determined to be not significant for the purposes of Executive 
Order 12866. Because prior notice and opportunity for public comment 
are not required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    Through this action, NMFS seeks to ensure that the regulations 
implementing the Program conform to the statutory requirements and 
intent of the Program and to provide clarification regarding the 
Program's regulatory requirements. Pursuant to 5 U.S.C. 553(b)(B), the 
NOAA Assistant Administrator for Fisheries finds good cause to waive 
prior notice and an opportunity for public comment on this action, as 
notice and comment would be impracticable, unnecessary, and contrary to 
the public interest for the following reasons. First, the Program's 
statutory requirements concerning the maximum amount of IPQ that can be 
issued by NMFS in the BBR and BSS crab QS fisheries are non-
discretionary. Section 3.4 of Amendment 18 to the FMP, which the 
Secretary is required to implement under section 313(j)(1) of the 
Magnuson-Stevens Act, limited the maximum amount of IPQ that could be 
issued in the BBR and BSS QS fisheries. NMFS has no discretion with 
respect to the terms of the calculations. As such, prior notice and an 
opportunity for public comment are unnecessary as the agency has no 
choice but to implement regulations that are consistent with the 
statute. Second, corrections and clarifications to ensure the rule's 
compliance with the intent of the Program must be made immediately in 
order to provide the regulated community with adequate and accurate 
information to establish the appropriate amount of IPQ to be issued for 
the upcoming crab fishing year. Harvesters and processors must apply to 
receive IFQ and IPQ, respectively, by August 1 for the upcoming crab 
fishing year. In order to allow the public to effectively plan and 
determine whether they will apply for IFQ or IPQ and to have a 
reasonable expectation about what the total amount of IPQ may be in the 
BBR and BSS crab QS fisheries, this regulation will need to be 
effective before that date. Prior notice and an opportunity for public 
comment on these measures are impracticable and contrary to the public 
interest because the time necessary to provide such procedures would 
lead to the realization of the very harm sought to be avoided by this 
rule. In contrast, waiving those procedures does not affect the 
regulated public in ways not previously analyzed and discussed in the 
Environmental Impact Statement and Regulatory Impact Review prepared 
for the Program.

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries.

    Dated: May 21, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 680 is corrected 
by making the following correcting amendments:

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. 108-199; Pub. L. 109-241; 
Pub. L. 109-479.


Sec.  680.40  [Corrected]

0
2. Correct Sec.  680.40 as follows:
    a. In paragraph (j)(3)(i), remove the phrase ``175,000,000 raw crab 
pounds (79,378.6 mt)'' and add in its place the phrase ``157,500,000 
raw crab pounds (71,441.5 mt)''; and
    b. In paragraph (j)(3)(ii), remove the phrase ``20,000,000 raw crab 
pounds (9,071.8 mt)'' and add in its place the phrase ``18,000,000 raw 
crab pounds (8,164.7 mt)''.

[FR Doc. E8-11780 Filed 5-23-08; 8:45 am]
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