[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Proposed Rules]
[Pages 74161-74163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30099]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

RIN 0648-BA82


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

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 41 to the Fishery Management Plan for Bering Sea/
Aleutian Islands King and Tanner Crabs (FMP) to NMFS for review. If 
approved, Amendment 41 would amend the Bering Sea and Aleutian Islands 
Crab Rationalization Program (CR program) by establishing a process for 
eligible harvesters, processors, and affected communities to request an 
exemption from regional delivery requirements. Federal regulations 
require that crab harvested with regionally designated individual 
fishing quota (IFQ) be landed within the designated region; likewise, 
crab purchased with regionally designated individual processing quota 
(IPQ) must be processed within the designated region. Natural and man-
made situations can disrupt fishing and processing activity making 
regional delivery requirements untenable in some seasons. Amendment 41 
is necessary to prevent disruption to the CR Program fisheries, while 
providing for the sustained participation of the communities intended 
to benefit from the regional delivery requirements. This proposed 
action is intended to promote the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
the FMP, and other applicable laws.

DATES: Comments on the amendment must be received on or before February 
11, 2013.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2012-0032, 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2011-
0147 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
that line.
     Fax: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Fax comments to (907) 586-7557.
     Mail: Address 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.
     Hand delivery to the Federal Building: Address written 
comments to Glenn Merrill, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen 
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau, 
AK.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. 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. 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 (for example, name, address) voluntarily submitted by the 
commenter will 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.
    Copies of Amendment 41, the Regulatory Impact Review (RIR)/Initial 
Regulatory Flexibility Analysis, the categorical exclusion prepared for 
this action, and the Environmental Impact Statement, RIR, Final 
Regulatory Flexibility Analysis, and Social Impact Analysis prepared 
for the CR Program may be obtained from the Alaska Region Web site at 
http://www.alaskafisheries.noaa.gov/sustainablefisheries.htm.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 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 (Secretary). 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 41 to the 
FMP is available for public review and comment.
    The king and Tanner crab fisheries in the exclusive economic zone 
of the BSAI are managed under the FMP. The FMP was prepared by the 
North Pacific Fishery Management Council (Council) under the Magnuson-
Stevens Act. Amendments 18 and 19 amended the FMP to include the CR 
Program. Regulations implementing these amendments were published on 
March 2, 2005 (70 FR 10174), and are located at 50 CFR part 680.
    The CR Program is a catch share program for nine BSAI crab 
fisheries that allocates those resources among harvesters, processors, 
and coastal communities. Under the CR Program, NMFS issued quota share 
(QS) to eligible harvesters based on participation during a set of 
qualifying years in one or more of the nine CR Program fisheries. QS is 
an exclusive, revocable privilege allowing the holder to harvest a 
specific percentage of the annual total allowable catch (TAC) in a CR 
Program fishery.
    A QS holder's annual allocation, called IFQ, is expressed in pounds 
and is based on the amount of QS held in relation to the total QS pool 
for that fishery. NMFS issues IFQ in three classes: Class A IFQ, Class 
B IFQ, and Class C IFQ. Three percent of IFQ is issued as Class C IFQ 
for captains and crew. Ninety percent of the remaining IFQ is issued as 
Class A IFQ and 10 percent is issued as Class B IFQ.
    NMFS issued processor quota share (PQS) to qualified individuals 
and entities based on processing activities in CR Program fisheries 
during a period of qualifying years. PQS is an exclusive, revocable 
privilege to receive deliveries of a fixed percentage of the annual TAC 
from a CR Program fishery. A PQS holder's annual allocation is called 
IPQ. NMFS issues IPQ at a one-to-one correlation between the amount of 
IPQ and Class A IFQ issued for a given CR Program fishery. Class A IFQ 
must be delivered to a processor holding a matching amount of IPQ; 
Class C IFQ

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and Class B IFQ may be delivered to any registered crab receiver.
    The CR Program established regional delivery requirements to 
preserve the historic geographic distribution of deliveries in the crab 
fisheries. NMFS assigned a regional designation to QS and PQS for seven 
of the nine CR Program fisheries. The regional delivery requirements 
are structured so that crab harvested with regionally designated IFQ 
must be delivered to a processor with matching regionally designated 
IPQ and processed in the designated region. These regional delivery 
requirements are intended to ensure that coastal communities 
historically active as crab processing ports continue to receive 
economic benefits from crab deliveries and to encourage the development 
of shorebased processing capacity in specific isolated communities.
    The Council adopted Amendment 41 to the FMP at its December 2010 
meeting. Amendment 41 allows IFQ holders, IPQ holders, and communities 
to request and receive from NMFS an exemption to regional delivery 
requirements. Amendment 41 would apply to QS and PQS that has a 
regional designation for the North Region or South Region. NMFS 
assigned a North Region designation or a South Region designation to 
the QS and PQS in six CR Program fisheries: Bristol Bay red king crab, 
Bering Sea snow crab, Eastern Aleutian Islands golden king crab, 
Western Aleutian Islands red king crab, Saint Matthew Island blue king 
crab, and Pribilof Islands red and blue king crab. The North Region is 
north of 54[deg]20' N. latitude. The South Region is south of 
54[deg]20' N. latitude.
    NMFS also assigned a West Region designation to a portion of the 
Western Aleutian Islands golden king crab QS and PQS; the remaining QS 
and PQS in that fishery is undesignated and may be delivered without 
regional limitation. Eastern Bering Sea Tanner crab QS and PQS, and 
Western Bering Sea Tanner crab fishery QS and PQS, do not have a 
regional designation. Amendment 41 would not apply to QS and PQS issues 
for these fisheries.
    In recommending Amendment 41, the Council recognized that weather 
conditions or other natural or man-made circumstances can hinder 
harvesting activities and restrict access to processing facilities in 
the North or South Region. Natural or man-made catastrophes could 
result in lost revenue to harvesters, processors, and communities. 
Safety risks increase when harvesters attempt to meet regional delivery 
requirements in inclement weather (e.g., icing conditions) and other 
potentially unsafe situations. Unforeseen delays in delivering crab 
could result in deadloss (crab that die before being processed). 
Harvesters may avoid or delay the harvest of regionally designated IFQ, 
thereby increasing the potential for unharvested crab or crab harvested 
later in the fishing season than would have been otherwise required for 
a given TAC level. Such changes in fishing behavior could result in 
unused IPQ, increased processing cost, loss of market share, and loss 
of revenue to remote communities dependent on revenues from crab 
deliveries and processing.
    The Council recognized that the purpose of prohibiting holders of 
regionally designated Class A IFQ and IPQ from delivering and 
processing crab outside of the designated region ensures that each 
region retains the economic benefits from deliveries within the region. 
Therefore, under Amendment 41, deliveries of regionally designated 
Class A IFQ outside of the region would need to be negotiated among IFQ 
holders, IPQ holders, and representatives of affected communities. The 
Council also recognized that any exemption must include requirements 
for IFQ holders and IPQ holders to make efforts to avoid the need for 
an exemption and to limit the amount of IFQ and IPQ subject to the 
exemption. The Council recommendation supports the existing regional 
delivery requirements while establishing a process to mitigate 
disruptions in a CR Program fishery that would restrict the ability of 
participants to meet the delivery requirements.
    The Council also recognized the potential for insurmountable 
administrative difficulties if NMFS specified the conditions for 
granting an exemption and then determined whether those conditions 
existed in a particular situation. Therefore, the Council recommended a 
system of civil contracts between harvesters, processors, and community 
representatives as the means of establishing the exemption from the 
regional delivery requirements.
    Under Amendment 41, the parties--Class A IFQ holders, IPQ holders, 
and affected communities--would develop private contractual 
arrangements that specify when, and under what terms, they could 
request and receive an exemption from NMFS. The contract terms would 
not be established in the FMP or in regulation. The parties would enter 
into two private contractual arrangements--a framework agreement and an 
exemption contract--before the specified IFQ and IPQ would be exempt 
from the regional delivery requirements. These contracts would govern 
the roles and responsibilities of the parties to the contract and would 
establish each party's specific obligations. The goal is that, through 
the framework agreement process, the parties would plan for adverse 
conditions and would agree to take steps to reduce the need for an 
exemption. Then, in the event that the mitigation was unsuccessful in 
averting the need for an exemption, the parties would agree to an 
exemption contract and jointly apply to NMFS for an exemption from the 
regional delivery requirement. If any party to a framework agreement or 
exemption contract believes that any other party did not comply with 
their contractual obligation, that party could seek redress as a 
private civil matter.
    Amendment 41 does not prescribe specific conditions or terms of 
agreement for the framework agreement or exemption contract. Section 
2.4.2 of the analysis provides background about the range of private 
arrangements that the Council considered and that the parties might put 
in the framework agreement and the exemption contract. In negotiating 
the framework agreement, the Council expects that the parties would 
consider mechanisms and operating practices that would limit the need 
to seek an exemption from the regional delivery requirements. The 
Council anticipates that the framework agreement would define the steps 
that the parties would take prior to the crab fishing season to avoid 
seeking an exemption during the fishery. A framework agreement could 
include an agreement among IFQ holders, whereby they aggregate a 
certain percentage of their IFQ to address inseason factors that could 
otherwise prevent compliance with regional delivery requirements. For 
example, the framework agreement could prioritize the harvest of North 
Region Class A IFQ while setting aside a portion of South Region Class 
A IFQ until the North Region Class A IFQ has been harvested and 
delivered to matching North Region IPQ. The Council anticipates that 
the framework agreement would also address the circumstances that would 
trigger requesting an exemption. If those circumstances occurred, the 
Council anticipates that the framework agreement would describe the 
steps that the parties would take to mitigate the adverse effects of 
the exemption on the affected community. The framework agreement might 
include steps to compensate the community that was losing the 
processing, the economic activity from the processing, and the tax 
revenues from the processing.

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    The CR Program also limits the amount of PQS and IPQ that may be 
owned or used by an individual. Under Amendment 41, NMFS would suspend 
the requirement that any IPQ used at a facility through a custom 
processing arrangement accrue against the IPQ use cap of the owners of 
that facility for all Class A IFQ and IPQ included in the exemption. 
IPQ holders will continue to be subject to the IPQ use cap for other 
crab processing that does not occur through an exemption from the 
regional delivery requirements.
    NMFS is soliciting public comments on proposed Amendment 41 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 41, following NMFS' evaluation of the 
proposed rule under the Magnuson-Stevens Act. All comments received by 
the end of the comment period on Amendment 41, whether specifically 
directed to the FMP amendment or the proposed rule, will be considered 
in the approval/disapproval decision on Amendment 41. Comments received 
after that date will not be considered in the approval/disapproval 
decision on Amendment 41. 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: December 10, 2012.
Lindsay Fullenkamp,
Acting Deputy Director, Office of Sustainable Fisheries, National 
Marine Fisheries Service.
[FR Doc. 2012-30099 Filed 12-12-12; 8:45 am]
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