[Federal Register Volume 75, Number 32 (Thursday, February 18, 2010)]
[Rules and Regulations]
[Pages 7205-7208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3111]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 100106010-0074-01]
RIN 0648-AY52


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Crab Rationalization Program; Emergency Rule

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

ACTION:  Emergency rule; request for comments.

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SUMMARY:  NMFS is exempting, through this emergency rule, individual 
fishing quota (IFQ) issued for the Western Aleutian Islands golden king 
crab fishery from the West regional designation and individual 
processing quota (IPQ) issued for this fishery from the West regional 
designation. Under the Bering Sea/Aleutian Islands Crab Rationalization 
Program, golden king crab harvested with IFQ with a West regional 
designation must be delivered

[[Page 7206]]

to a processor with West designated IPQ in the West region of the 
Aleutian Islands. An emergency exists, because Federal regulations 
require that a portion of crab taken in this fishery be delivered and 
processed in the West region, but due to a recent unforeseen event, no 
processing facility is open in the West region. This emergency rule is 
necessary to relieve a restriction and allow fishermen to deliver crab 
harvested with West designated IFQ to processors outside the West 
region and allow processors with West designated IPQ to process that 
crab outside the West region. This action is intended to promote the 
goals and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act, the Fishery Management Plan for Bering Sea/Aleutian 
Islands King and Tanner Crabs, and other applicable law.

DATES:  Effective February 18, 2010, through August 17, 2010. Comments 
must be received by March 22, 2010.

ADDRESSES:  You may submit comments, identified by RIN 0648-AY52, by 
any one of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portahttp://www.regulations.gov.
    Fax: (907) 586-7557, Attn: Ellen Sebastian
    Mail: P.O. Box 21668, Juneau, AK 99802.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Electronic copies of the Regulatory Impact Review (RIR) prepared 
for this action may be obtained from http://www.regulations.gov or from 
the NMFS Alaska Region website at http://alaskafisheries.noaa.gov/regs/summary.htm.

FOR FURTHER INFORMATION CONTACT:  Gretchen Harrington, 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). The FMP was prepared by the North 
Pacific Fishery Management Council (Council) under the Magnuson-Stevens 
Fishery Conservation and Management Act as amended by the Consolidated 
Appropriations Act of 2004 (Public Law 108-199, section 801). A final 
rule implementing the Crab Rationalization Program (Program) was 
published on March 2, 2005 (70 FR 10174). Regulations implementing the 
FMP, and all amendments to the Program, are at 50 CFR part 680. General 
regulations related to fishery management are at 50 CFR part 600.

Crab Rationalization Program

    NMFS established the Program as a catch share 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 these nine BSAI crab 
fisheries during a specific time period. Under the Program, NMFS issued 
four types of QS: catcher vessel owner (CVO) QS was assigned to holders 
of License Limitation Program (LLP) licenses who delivered their catch 
onshore or to stationary floating crab processors; catcher/processor 
vessel owner (CPO) QS was assigned to LLP holders that harvested and 
processed their catch at sea; captains and crew onboard catcher/
processor vessels were issued catcher/processor crew (CPC) QS; and 
captains and crew onboard catcher vessels were issued catcher vessel 
crew (CVC) QS. Each year, a person who holds QS may receive an 
exclusive harvest privilege for a portion of the annual total allowable 
catch (TAC), called individual fishing quota (IFQ). Under the program, 
QS holders can form cooperatives to pool the harvest of the IFQ on a 
few vessels.
    NMFS also issued processor quota share (PQS) under the 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. QS derived from deliveries made by catcher vessel 
owners (i.e., CVO QS) is subject to designation as either Class A IFQ 
or Class B IFQ. Ninety percent of the IFQ derived from CVO QS is 
designated as Class A IFQ, and the remaining 10 percent of the IFQ is 
designated as Class B IFQ. Class A IFQ must be matched and delivered to 
a processor with IPQ. Class B IFQ is not required to be delivered to a 
specific processor with IPQ. Each year there is a one-to-one match of 
the total pounds of Class A IFQ with the total pounds of IPQ issued in 
each crab fishery.
    The Program seeks to ensure that communities that were historically 
active as processing ports continue to receive socioeconomic benefits 
from crab deliveries. To accomplish this, the Program imposes regional 
delivery requirements, and, for the Western Aleutian Islands golden 
king crab fishery, allocates 10 percent of the TAC to the Adak 
community. The specific geographic regions are based on historic 
geographic delivery and processing patterns.
    Western Aleutian Islands Golden King Crab Fishery
    The only fishery affected by this emergency action is the Western 
Aleutian Islands golden king crab fishery, a relatively small but 
lengthy fishery prosecuted in extremely remote waters. The 2009/2010 
Western Aleutian Islands golden king crab TAC is 2.835 million pounds, 
with 283,500 pounds for the Adak Community Allocation. The fleet 
consists of two catcher vessels and a single catcher/processor. Two IPQ 
holders hold nearly 99 percent of all of the West designated IPQ. The 
season starts on August 15 and ends on May 15.
    For the Western Aleutian Islands golden king crab fishery, 50 
percent of the Class A IFQ and a corresponding amount of IPQ are 
designated for the West region, west of 174[deg] W. long., and the 
other 50 percent of the Class A IFQ and IPQ are not subject to a 
regional designation. Class B, CVC, CPO, CPC IFQ, and the Adak 
Community Allocation are also not subject to regional delivery 
requirements. For the 2009/2010 fishery, NMFS issued West designated 
IFQ and corresponding IPQ for approximately 600,000 pounds of Western 
Aleutian Islands golden king crab (approximately 24 percent of the 
TAC).
    Crab harvested with West designated Class A IFQ must be delivered 
to a processor located in the West region with West designated IPQ. The 
purpose of this delivery requirement was to support processing 
facilities in the remote West region. Since implementation of the 
Program, the only shore-based processing plant in this region has been 
located in the community of Adak.
    In April 2009, the Adak shore-based processing plant closed and in 
September 2009, the plant's owners filed for Chapter 11 bankruptcy. 
Closure

[[Page 7207]]

of the Adak plant precludes the ability for catcher vessels to deliver 
crab harvested with their West designated IFQ. West designated IPQ 
holders lack a facility at which to process crab with their West 
designated IPQ. Subsequent difficulties with plant ownership and 
complicated bankruptcy proceedings effectively ensure that the Adak 
plant cannot open in the near-term.
    In October 2009, fishery participants petitioned the Council for 
approval of an emergency rule to suspend the West region delivery 
requirement for the 2009/2010 fishing season due to the closure of the 
Adak plant. The Council delayed taking action until its December 
meeting and tasked staff to develop a discussion paper that analyzes 
the circumstances in this fishery for determining whether an emergency 
exists. Delaying action by one meeting also provided more time for 
circumstances with the Adak plant bankruptcy to change and for industry 
members to look at whether other solutions to resolve this situation, 
such as a floating processor, would be viable in the West region. 
Processor representatives provided testimony to the Council at the 
December 2009 Council meeting that operating a floating processor in 
the West region for this season would not be profitable, due to the 
length of the golden king crab fishery, the expected price per pound 
for golden king crab, and operating costs.

Emergency Action

    This emergency rule exempts West designated IFQ and West designated 
IPQ for the Western Aleutian Islands golden king crab fishery from the 
West regional designation in regulations at 50 CFR 680.40(c)(4) and 
Sec.  680.40(e)(2), respectively, for the period that this rule is 
effective (see DATES). Removing the West regional designation from this 
IFQ and IPQ would remove the requirement that these shares be used in 
the West region. With this exemption, Western Aleutian Islands golden 
king crab harvested with West designated IFQ could be delivered to a 
processor with IPQ in any location and processors could process crab 
using West designated IPQ in any location.
    Section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act provides authority for rule making to address an 
emergency. Under that section, a Council may recommend emergency rule 
making, if it finds an emergency exists.
    At its December 2009 meeting, the Council voted 10 to 1 to request 
that NMFS promulgate an emergency rule to relieve the existing regional 
delivery and processing requirement in the Western Aleutian Islands 
golden king crab fishery. The Council considered this issue over two 
meetings to provide the public with notice and the opportunity to 
comment and to see if industry members could resolve this situation 
either through re-opening the Adak plant or providing an alternate 
processing facility, such as a floating processor, in the West region 
and thus ameliorate the need for an emergency rule. The Council 
received testimony in support of emergency action from West region IFQ 
and IPQ holders and representatives from the community of Adak; no 
testimony in opposition was presented to the Council.
    The Council determined that an emergency exists because, due to a 
recent unforeseen event, no processing facility is currently, or likely 
to, open in the West region for the 2009/2010 fishing year, yet federal 
regulations require that a portion of crab be processed in the West 
region. Exempting the West designated IFQ and IPQ from the West 
regional designation would relieve these shares from delivery 
restrictions and thus would enable fishermen to deliver harvests made 
with West designated IFQ outside the West region. Without the ability 
to deliver and process the crab, a substantial portion of the fishery 
will likely remain unharvested, causing economic harm to fishery 
participants. The emergency rule would provide relief for the 2009/2010 
crab fishing year and enable the fishery to occur while the Council 
develops an FMP amendment to permanently address this situation. The 
Council is scheduled to review a draft analysis at its February 2010 
meeting that assesses alternatives to amend the FMP, should unforeseen 
events prevent deliveries in the West region in future years.
    In making this recommendation, the Council considered the NMFS 
policy guidelines for the development and approval of regulations to 
address emergencies. Emergency rule making is intended for 
circumstances that are extremely urgent, where substantial harm to or 
disruption of the fishery would be caused in the time it would take to 
follow standard rulemaking procedures (62 FR 44421). An emergency is a 
situation that: results from recent, unforeseen events or recently 
discovered circumstances; presents serious conservation or management 
problems in the fishery; and can be addressed through emergency 
regulations for which the immediate benefits outweigh the value of 
advance notice, public comment, and deliberative consideration of the 
impacts on participants to the same extent as would be expected under 
the normal rule making process.
    NMFS finds that an emergency exists because
     The bankruptcy and closure of the Adak plant is a recent 
and unforeseen event. Additionally, the absence of other processing 
alternatives entering the West region in light of the Adak plant 
closure is a recent and unforeseen event.
     Regulations that prevent a substantial portion of the 
Western Aleutian Islands golden king crab TAC from being harvested and 
processed present a serious management problem.
     This problem can be addressed through an emergency rule 
that would exempt shares from regulatory requirement, thus allowing 
crab to be delivered and processed outside the West region.
     Allowing the full harvest of the IFQ in the 2009/2010 crab 
fishing year provides immediate benefits that outweigh the value of the 
deliberative notice-and-comment rule making process.
    The circumstances that justified the constraint on deliveries have 
changed, and, at least temporarily, the constraint no longer achieves 
the goals that led to its incorporation in the Program. Therefore, 
lifting the constraint should relieve an unnecessary and unanticipated 
burden on the region's economic activity, enhance resource management 
and conservation, and, thus, increase the value the Nation receives 
from the Western Aleutian Islands golden king crab resource.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this emergency rule is consistent with the national standards and 
other provisions of the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws. The rule may be extended for 
a period of not more than 186 days as described under section 
305(c)(3)(B) of the Magnuson-Stevens Fishery Conservation Management 
Act.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment because it would be impracticable and 
contrary to the public interest.
    Waiver of the notice-and-comment rulemaking period will serve the 
public by allowing the restriction to be relieved in the current 
fishing season to enable full harvest of the total allowable catch. 
This fishery began on August 15, 2009, and the fleet is harvesting 
golden king crab with undesignated IFQ. This

[[Page 7208]]

emergency rule would allow the harvest of approximately 600,000 pounds 
of West designated IFQ prior to the closure of the fishery on May 15, 
2010. Notice-and-comment rulemaking would preclude a solution for the 
2009/2010 crab fishing year, resulting in approximately 600,000 pounds 
of forgone golden king crab harvest. The cost of this lost harvest 
outweighs the benefit of using the more protracted, normal process that 
would be ineffective for addressing the immediate issue.
    Because this rule relieves a restriction by exempting IFQ and IPQ 
from the West region designation, it is not subject to the 30-day 
delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d) 
(1).
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866. The regulatory impact review 
prepared for this action is available from NMFS (see ADDRESSES).
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is not subject to the requirement to 
provide prior notice and opportunity for public comment pursuant to 5 
U.S.C. 553 or any other law.

    Authority: 16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.

    Dated: February 12, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-3111 Filed 2-17-10; 8:45 am]
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