[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Rules and Regulations]
[Pages 4206-4212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01406]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 680
[Docket No. 151223999-6040-01]
RIN 0648-BF68
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Crab Rationalization Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; emergency action; request for comments.
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SUMMARY: This rule addresses how individual processing quota (IPQ) use
caps apply to Bering Sea Chionoecetes bairdi Tanner crab fisheries: The
eastern C. bairdi Tanner (EBT) and the western C. bairdi Tanner (WBT).
This rule exempts EBT and WBT IPQ crab that is custom processed at a
facility through contractual arrangements with the facility owners from
being applied against the IPQ use cap of the facility owners. This rule
applies to EBT and WBT IPQ crab received for custom processing during
the 2015/2016 crab fishing year. Without this rule, substantial amounts
of EBT and WBT Class A IFQ crab would remain unharvested, and
fishermen, shoreside processors, and communities that participate in
the EBT and WBT fisheries have no viable alternatives to mitigate the
resulting significant, negative economic effects before the fisheries
end for the season. This rule is necessary to temporarily relieve a
restriction that is preventing the full harvest of EBT and WBT Class A
IFQ crab. This rule 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 January 26, 2016 through June 30, 2016. Comments must
be received by February 25, 2016.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2015-0168,
by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0168 click the
``Comment Now!'' icon, complete the
[[Page 4207]]
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 generally 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 this rule may be obtained from
http://www.regulations.gov or from the Alaska Region Web site at http://alaskafisheries.noaa.gov. The Environmental Impact Statement (Program
EIS), RIR (Program RIR), Final Regulatory Flexibility Analysis (Program
FRFA), and Social Impact Assessment prepared for the Crab
Rationalization 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: 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 Fishery Management Plan for Bering
Sea/Aleutian Islands King and Tanner Crabs (Crab FMP). The Council
prepared, and NMFS approved, the Crab FMP under the authority of the
Magnuson-Stevens Fishery Conservation and Management Act (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.
This rule modifies regulations that specify how IPQ use caps apply
to IPQ issued for EBT and WBT crab fisheries for the 2015/2016 crab
fishing year. The 2015/2016 crab fishing year ends on June 30, 2016.
The following sections describe (1) the BSAI crab fisheries, (2)
general background on IPQ use caps and custom processing arrangements,
(3) IPQ use caps applicable to the EBT and WBT crab fisheries, and (4)
this rule and justification for emergency action.
The BSAI Crab Fisheries
The Crab Rationalization Program (Program) was implemented on March
2, 2005 (70 FR 10174). The Program established a limited access
privilege program for nine crab fisheries in the BSAI, including the
EBT and WBT crab fisheries, 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 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 to shoreside crab processors or to stationary floating crab
processors; catcher/processor vessel owner QS was assigned to LLP
license holders who harvested and processed their catch at sea;
captains and crew on board catcher/processor vessels were issued
catcher/processor crew QS; and captains and crew on board catcher
vessels were issued catcher vessel crew QS. Each year, a person who
holds QS may receive an exclusive harvest privilege for a portion of
the annual total allowable catch, called individual fishing quota
(IFQ).
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. Quota share 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
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.
NMFS issued QS and PQS for the EBT and WBT crab fisheries. Unlike
the QS and PQS issued for most other crab fisheries, the QS and PQS
issued for the EBT and WBT crab fisheries are not subject to regional
delivery and processing requirements, commonly known as
regionalization. Therefore, the Class A IFQ that results from EBT and
WBT QS, and the IPQ that results from EBT and WBT PQS, can be delivered
to, and processed at, any otherwise eligible processing facility.
In addition, the PQS and resulting IPQ issued for the EBT and WBT
crab fisheries are not subject to right-of-first-refusal (ROFR)
provisions included in the Program. The ROFR provisions provide certain
communities with an option to purchase PQS or IPQ that would otherwise
be used outside of the community holding the ROFR.
Because the EBT and WBT crab fisheries are not subject to
regionalization or ROFR provisions, crab harvested under a Class A IFQ
permit in these fisheries can be delivered to processors in a broad
geographic area more easily than crab harvested under Class A IFQ
permits in crab fisheries subject to regionalization and ROFR
provisions. The rationale for exempting the EBT and WBT crab fisheries
from regionalization and ROFR provisions is described in the Program
EIS (see ADDRESSES), and in the final rule implementing the Program
(March 2, 2005, 70 FR 10174).
General Background on IPQ Use Caps and Custom Processing Arrangements
When the Council recommended the Program, it expressed concern
about the potential for excessive consolidation of QS and PQS, and the
resulting annual IFQ and IPQ. 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 Program EIS (see
ADDRESSES). To address these concerns, the Program limits the amount of
QS that a person can hold, the amount of IFQ that a person can use, and
the amount of IFQ that can be used on board a vessel. Similarly, the
Program limits the amount of PQS that a person can hold, the amount of
IPQ that a person can use, and the amount of IPQ that can be processed
at a given facility. These limits are commonly referred to as use caps.
In each of the nine BSAI crab fisheries under the Program, a person
is limited to holding no more than 30 percent of the PQS initially
issued in the fishery and using no more than the amount of IPQ
resulting from 30 percent of the initially issued PQS in a given
fishery, with a limited exemption for persons receiving more than 30
percent of the initially issued PQS. The rationale for the IPQ use caps
is described in the Program EIS (see ADDRESSES) and the final rule
implementing the Program (70
[[Page 4208]]
FR 10174, March 2, 2005). According to information in section 6.1.1 of
the RIR (see ADDRESSES), no person in the EBT or WBT crab fisheries
received in excess of 30 percent of the initially issued PQS.
Therefore, no person may use an amount of EBT or WBT IPQ greater than
an amount resulting from 30 percent of the initially issued EBT or WBT
PQS.
The Program is designed to minimize the potential for a single
person to evade the PQS and IPQ use caps through the use of corporate
affiliations or other legal relationships. To accomplish this, Sec.
680.7(a)(7) prohibits an IPQ holder from using more IPQ than the
maximum amount of IPQ that may be held by that person and states that a
person's IPQ use cap is calculated by summing the total amount of IPQ
that is held by that person and IPQ held by other persons who are
affiliated with that person. The term ``affiliation'' is defined in
Sec. 680.2. Additional terms used in the definition of ``affiliation''
are described in Sec. 680.2, and NMFS refers the reader to that
section for additional detail.
Under Sec. 680.7(a)(7), any IPQ crab that is ``custom processed''
at a facility an IPQ holder owns will be applied against the IPQ use
cap of the facility owner, unless specifically exempted by Sec.
680.42(b)(7). A custom processing arrangement exists when an IPQ holder
has a contract with the owners of a processing facility to have his or
her crab processed at that facility, and the IPQ holder (1) does not
have an ownership interest in that processing facility, and (2) is not
otherwise affiliated with the owners of that processing facility. In
custom processing arrangements, the IPQ holder contracts with a
facility operator to have the IPQ crab processed according to that IPQ
holder's specifications. Custom processing arrangements typically occur
when an IPQ holder does not own a shoreside processing facility or
cannot economically operate a stationary floating crab processor.
Shortly after implementation of the Program, the Council submitted
and NMFS approved Amendment 27 to the Crab FMP (74 FR 25449, May 28,
2009). Amendment 27 was designed to improve operational efficiencies in
crab fisheries with historically low total allowable catches or that
occur in more remote regions by exempting certain IPQ crab processed
under a custom processing arrangement from applying against the IPQ use
cap of the owner of the facility at which IPQ crab are custom
processed. For ease of reference, this preamble refers to this
exemption as a ``custom processing arrangement exemption.'' NMFS refers
the reader to the preamble to the final rule implementing Amendment 27
to the Crab FMP for additional information regarding the rationale for
custom processing arrangement exemptions in specific BSAI crab
fisheries. Section 680.42(b)(7) describes the BSAI crab fisheries and
other requirements that qualify for a custom processing arrangement
exemption.
Section 680.42(b)(7)(ii)(A) lists the six BSAI crab fisheries for
which the custom processing arrangement exemption applies. These are:
Bering Sea C. opilio with a North Region designation, Eastern Aleutian
Islands golden king crab, Pribilof Island blue and red king crab, Saint
Matthew blue king crab, Western Aleutian golden king crab processed
west of 174[deg] W. long., and Western Aleutian Islands red king crab.
As described later in this preamble, the custom processing arrangement
exemption implemented under Amendment 27 does not apply to custom
processing arrangements in the EBT and WBT crab fisheries.
Under the custom processing arrangement exemption, NMFS does not
apply any IPQ used at a facility through a custom processing
arrangement against the IPQ use cap of the owners of that facility
provided there is no affiliation between the person whose IPQ crab is
processed at that facility and the IPQ holders who own that facility.
Effectively, Sec. 680.42(b)(7)(ii)(A) does not count IPQ crab that are
custom processed at a facility owned by an IPQ holder against the IPQ
use cap of the owner of the processing facility. In such a case, a
person who holds IPQ and who owns a processing facility is credited
only with the amount of IPQ crab used by that person, or any affiliates
of that person, when calculating IPQ use caps. In sum, these
regulations allow processing facility owners who also hold IPQ to be
able to use their facility, or facilities, to establish custom
processing arrangements with other IPQ holders to process more crab,
thereby improving throughput and providing a more economically viable
processing operation.
Section 680.42(b)(7)(ii)(B) provides a custom processing
arrangement exemption in the six BSAI crab fisheries described above
provided that the facility, at which the IPQ crab are custom processed,
meets specific requirements. Under the custom processing arrangement
exemption, IPQ crab that are custom processed do not count against the
IPQ use cap of persons owning the facility if the facility is located
within the boundaries of a home rule, first class, or second class city
in the State of Alaska on the effective date of regulations
implementing Amendment 27 (June 29, 2009) and is either (1) a shoreside
crab processor or (2) a stationary floating crab processor that is
located within a harbor and moored at a dock, docking facility, or
other permanent mooring buoy, with specific provisions applicable to
the City of Atka. The specific provisions applicable to facilities
operating within the City of Atka are not directly relevant to the EBT
and WBT crab fisheries and this rule, and are not addressed further.
Additional information on the facilities to which the custom processing
arrangement exemption applies is found in the preamble to the final
rule implementing Amendment 27 (74 FR 25449, May 28, 2009) and is not
repeated here.
Finally, Sec. 680.7(a)(8) prohibits a shoreside crab processor or
a stationary floating crab processor in which no IPQ holder has a 10
percent or greater ownership interest in the processing facility from
receiving more than 30 percent of the IPQ issued for a particular crab
fishery. However, IPQ crab processed under a custom processing
arrangement does not apply against the limit on the maximum amount of
IPQ crab that can be processed at a facility. These regulations
effectively allow more than 30 percent of the IPQ for the six BSAI crab
fisheries to be processed at a facility if there is no affiliation
between the person whose IPQ crab is processed at that facility and the
IPQ holders who own that facility.
Regulations implementing Amendment 27 also modified the calculation
of IPQ use caps for IPQ crab subject to ROFR provisions (see Sec.
680.42(b)(7)(ii)(C)). However, as noted earlier in this preamble, ROFR
requirements do not apply to EBT and WBT crab. Therefore, modifications
to IPQ use cap calculations for IPQ crab subject to ROFR provisions are
not described further in this rule.
IPQ Use Caps Applicable to the EBT and WBT Crab Fisheries
As noted earlier, EBT and WBT IPQ crab that are processed under a
custom processing arrangement are not exempt from IPQ use caps and will
apply against a person's IPQ use cap if that person owns the facility
(i.e., has a 10 percent or greater direct or indirect ownership
interest) at which those IPQ crab are processed. Given the percentage
at which the IPQ use caps are set, a minimum of four persons who are
not affiliated with each other must receive and process EBT or WBT IPQ
crab to ensure that all Class A IFQ can be delivered and processed with
no person exceeding the IPQ use caps. Similarly, at least four
facilities that are not
[[Page 4209]]
affiliated through common ownership (i.e., a 10 percent or greater
direct or indirect ownership interest) must be used to receive and
process EBT and WBT IPQ crab to ensure that all Class A IFQ can be
delivered and processed with no facility exceeding the IPQ use caps.
When the Council recommended and NMFS implemented Amendment 27, the
Council and NMFS did not deem it necessary to grant the EBT and WBT
crab fisheries a custom processing arrangement exemption. The preamble
to the proposed rule implementing Amendment 27 explains that the
Council and NMFS did not recommend a custom processing arrangement
exemption for EBT and WBT IPQ crab because ``Bering Sea C. bairdi crab
are not subject to regionalization and therefore the need to exempt
custom processing arrangements from the IPQ use cap does not appear
necessary because crab can be effectively delivered to any processor
with matching IPQ in any location'' (73 FR 54351, September 19, 2008).
Since the implementation of Amendment 27, there has been additional
consolidation in the BSAI crab processing sector. As Section 6.2.1 of
the RIR describes (see ADDRESSES), during the 2015/2016 crab fishing
year there appear to be only three unique unaffiliated persons
(processors) who have received EBT and WBT IPQ crab at their
facilities. These three processors are the Maruha-Nichiro Corporation,
which includes Alyeska Seafoods, Peter Pan Seafoods, and Westward
Seafoods; Trident Seafoods; and Unisea Seafoods. Information in section
6.2.1 indicates that these three processors also own and operate all
facilities that have processed EBT and WBT IPQ crab during the 2015/
2016 crab fishing year.
The net effect of this processor consolidation is that there are
less than the required minimum of four unique and unaffiliated
processors active in the EBT and WBT crab fisheries. Therefore, only 90
percent of the Class A IFQ can be delivered to, and only 90 percent of
the IPQ may be used at, facilities owned and operated by Maruha-Nichiro
Corporation, Trident Seafoods, and Unisea Seafoods without causing the
IPQ use caps to be exceeded. The remaining 10 percent of the 2015/2016
EBT Class A IFQ/IPQ, or 826,322 pounds, and the remaining 10 percent of
the 2015/2016 WBT Class A IFQ/IPQ, or 615,489 pounds, must be either
delivered to processing facilities that are not affiliated with Maruha-
Nichiro Corporation, Trident Seafoods, or Unisea Seafoods or left
unharvested (see Section 6.2.1 of the RIR for more detail). In total,
10 percent of the Class A IFQ/IPQ for both the EBT and WBT crab
fisheries equals 1,441,811 pounds.
Sections 7.1 and 7.2 of the RIR indicate that developing or using
an alternative processing facility not affiliated with the Maruha-
Nichiro Corporation, Trident Seafoods, or Unisea Seafoods would not be
a feasible processing option for the remainder of the 2015/2016 crab
fishing year for several reasons. First, even though the 2015/2016 crab
fishing year ends on June 30, 2016, under the Crab FMP, the Crab FMP
authorizes the State of Alaska to establish specific regulations that
define the length of a crab fishing season during a crab fishing year.
By State of Alaska regulation, the EBT and WBT 2015/2016 crab fishing
seasons end on March 31, 2016. This regulatory closure date of the EBT
and WBT crab fisheries provides very limited time for IPQ holders to
find an alternative processing facility.
Second, although there are alternative shoreside processing
facilities not affiliated with the Maruha-Nichiro Corporation, Trident
Seafoods, or Unisea Seafoods, most of those facilities are located far
from the Bering Sea crab fishing grounds, such as in Kodiak, Alaska.
Transporting EBT or WBT crab to those locations would result in longer
trips with increased fuel and operating costs for harvesters, result in
lost fishing days while the crab are being transported, and increase
the potential for deadloss (death) of crab, which becomes increasingly
likely the longer that the crab are held in storage tanks and
transported. In addition, alternative shoreside processing facilities,
regardless of their location to the BSAI crab fishing grounds, have not
provisioned and planned their processing operations to accommodate a
relatively small proportion of the EBT and WBT IPQ allocations (i.e.,
only 10 percent of the EBT and WBT IPQ). The costs of provisioning
those alternative shoreside facilities for a relatively small amount of
crab and without adequate planning would likely impose substantial
additional costs relative to processing operations provisioned and
planned prior to the start of the EBT and WBT crab fisheries.
Deliveries to alternative shoreside processing facilities would impose
a substantial burden and cost on Class A IFQ holders in terms of added
delivery costs and time.
Third, sections 7.1 and 7.2 of the RIR indicate that using a
stationary floating crab processor would not be a feasible processing
option for the remainder of the 2015/2016 crab fishing year.
Establishing a contract with a stationary floating crab processor,
outfitting the vessel, and establishing a market for delivered Class A
IFQ EBT and WBT crab in the short amount of time available before the
end of the fisheries would present many of the same logistical
challenges that are present for alternative shoreside processing
facilities.
Finally, any IPQ holder hoping to secure an alternative shoreside
processing facility or a stationary floating crab processor will have
very little negotiating leverage with any unaffiliated processing
facility given the amount of time remaining for the EBT and WBT crab
season. That lack of negotiating leverage in establishing delivery
terms and conditions could impose additional costs on IPQ holders and
harvesters that may make such deliveries uneconomic. Sections 7.1 and
7.2 of the RIR conclude that there do not appear to be any viable
delivery options available for 10 percent of the EBT and WBT Class A
IFQ during the remainder of the 2015/2016 crab fishing year.
This Rule and Justification for Emergency Action
This rule temporarily suspends the existing Sec. 680.42(b)(7)(ii)
and adds a temporary Sec. 680.42(b)(7)(iii) that includes EBT and WBT
IPQ crab received during the 2015/2016 crab fishing year to the list of
BSAI crab fisheries already receiving a custom processing arrangement
exemption. This allows EBT and WBT IPQ crab received for custom
processing by the three processors operating in these fisheries to
qualify for a custom processing arrangement exemption and not apply
against the IPQ use caps for these processors. With this rule, all EBT
and WBT IPQ crab received during the 2015/2016 crab fishing year under
custom processing arrangements at the facilities owned by the Maruha-
Nichiro Corporation, Trident Seafoods, or Unisea Seafoods will not be
counted against the IPQ use cap of the facility or the facility owners.
The custom processing arrangement exemption implemented by this rule
will allow the three processors to custom process crab for unaffiliated
IPQ holders who have custom processing arrangements with the
processors, thereby allowing harvesters with Class A IFQ to fully
harvest and deliver their allocations of EBT and WBT crab to IPQ
holders with a custom processing arrangement at facilities operating in
the these fisheries.
Section 305(c) of the Magnuson-Stevens Act provides authority for
rulemaking to address an emergency. Under that section, a regional
fishery management council may recommend
[[Page 4210]]
emergency rulemaking if it finds an emergency exists. NMFS' Policy
Guidelines for the Use of Emergency Rules provide that the only legal
prerequisite for such rulemaking is that an emergency must exist, and
that NMFS must have an administrative record justifying emergency
regulatory action and demonstrating compliance with the Magnuson-
Stevens Act and the National Standards (see NMFS Instruction 01-101-07
(March 31, 2008) and 62 FR 44421, August 21, 1997). Emergency
rulemaking 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.''
Under NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR
44421, August 21, 1997), the phrase ``an emergency exists involving any
fishery'' is defined as a situation that meets the following three
criteria:
(1) Results from recent, unforeseen events or recently discovered
circumstances; and
(2) Presents serious conservation or management problems in the
fishery; and
(3) 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 rulemaking
process.
The following sections review each of these criteria and describe
why the Council and NMFS determined that allowing EBT and WBT IPQ crab
to qualify for a custom processing arrangement exemption for the
remainder of the 2015/2016 crab fishing year meets these criteria.
Criterion 1--Recent, Unforeseen Events or Recently Discovered
Circumstances
The Council and NMFS recently discovered that the processors
currently receiving EBT and WBT crab are constrained by the IPQ use
caps from being able to fully process all Class A IFQ issued for the
EBT and WBT crab fisheries in 2015/2016. The one processing facility
that previously operated in the EBT and WBT crab fisheries, and that
was not affiliated with the Maruha-Nichiro Corporation, Trident
Seafoods, or Unisea Seafoods, recently terminated its 2015/2016 BSAI
crab processing operations. Harvesters with the Intercooperative Crab
Exchange (ICE) notified the Council and NMFS that given these
operational factors, the application of IPQ use caps in the EBT and WBT
fisheries could limit their ability to fully harvest their Class A IFQ
allocations. ICE is a crab cooperative that represents most of the EBT
and WBT QS holders and receives most of Class A IFQ in the EBT and WBT
crab fisheries. ICE submitted a petition to the Council requesting that
the Council recommend an emergency rule to provide a custom processing
arrangement exemption for EBT and WBT IPQ crab on December 9, 2015. The
Council recommended an emergency rule to provide that custom processing
arrangement exemption on December 15, 2015.
Harvesters with EBT and WBT Class A IFQ and the Council noted that
harvesters are not responsible for the operational decisions of
processors, and harvesters were not aware until recently of the impact
of this decision on IPQ use cap calculations and their ability to fully
harvest and deliver their Class A IFQ. Harvesters with Class A IFQ have
stated that they did not become aware of the lack of adequate
processing capacity under the IPQ use caps until after the EBT and WBT
crab fisheries were underway for the 2015/2016 crab fishing year.
Consequently, harvesters with Class A IFQ did not foresee that the IPQ
use cap would constrain them from delivering the full amount of their
EBT and WBT Class A IFQ allocations.
Section 680.20(h) requires Class A IFQ holders to ``share match''
with processors holding available IPQ as a condition of making crab
deliveries. Harvesters with Class A IFQ were able to share match their
EBT and WBT Class A IFQ before the fishery start date of October 15,
2015, and reasonably concluded they would be able to deliver their
Class A IFQ crab to specific IPQ holders operating at specific
facilities. The application of the IPQ use caps in the EBT and WBT crab
fisheries, the consolidation of processors receiving EBT and EBT Class
A IFQ, and the lack of a custom processing arrangement exemption for
EBT and WBT IPQ constrain the ability for Class A IFQ holders to fully
harvest and deliver their crab given the processing options available
in the EBT and WBT crab fisheries. The Council and NMFS determined that
this is a recent and unforeseen event due to recently discovered
circumstances outside of the control of Class A IFQ holders. The
consolidation of processors below the minimum needed to process all of
the EBT and WBT Class A IFQ without exceeding the IPQ use caps was not
foreseen by the Council and NMFS and was recently discovered after the
start of the 2015/2016 EBT and EBT crab fishing seasons.
Criterion 2--Presents Serious Conservation or Management Problems in
the Fishery
The Council and NMFS determined that this criterion is met because
without an emergency rule there will be a substantial adverse economic
impact on harvesters, processors, and communities. Without an emergency
rule, as much as 10 percent of the Class A IFQ for both the EBT and WBT
crab fisheries, or 1,441,811 pounds of crab, will be unable to be
harvested due to an insufficient number of adequate processing
facilities that can receive Class A IFQ without IPQ holders exceeding
their IPQ use caps. The lost revenue from this forgone harvest is
estimated to be approximately $ 3.4 million in ex-vessel value and $
4.95 million in first wholesale value based on estimated ex-vessel and
wholesale values of EBT and WBT crab in 2015/2016 (see Sections 7.1 and
7.2 of the RIR for additional detail).
Without a custom processing arrangement exemption, harvesters with
Class A EBT and WBT IFQ would be unable to harvest allocations provided
to them due to limitations imposed on IPQ holders and processors that
receive EBT and WBT crab would not be able to fully process the EBT and
WBT crab resource. In addition to lost revenue to harvesters and
processors, communities where EBT and WBT crab are delivered will not
receive benefits from labor payments and tax revenue without this rule.
This rule is the only mechanism to restore the forgone harvest and lost
revenue because other BSAI crab fisheries that could substitute for
this lost revenue are fully allocated and are not available to
compensate EBT and WBT Class A IFQ holders. Section 7 of the RIR
provides additional detail on the economic impacts of this rule.
The Council and NMFS also determined that implementation of this
rule will not create conservation issues with regard to BSAI crab
generally, or the EBT and WBT crab fisheries specifically. This rule
will allow Class A IFQ holders in the EBT and WBT crab fisheries to
fully harvest their IFQ allocations, but still limit the overall amount
of harvest in these fisheries to the IFQ allocations authorized for the
2015/2016 crab fishing year.
Criterion 3--Can Be Addressed Through Emergency Rulemaking for Which
the Immediate Benefits Outweigh the Value of Notice and Comment
Rulemaking
NMFS and the Council have determined that the emergency situation
created by the lack of adequate processing facilities that can be used
to
[[Page 4211]]
receive all EBT and WBT IPQ crab can be addressed by emergency
regulations. As explained earlier in this preamble, creating a
temporary custom processing arrangement exemption through this rule
will allow harvesters to fully harvest their Class A IFQ allocations in
the EBT and WBT crab fisheries without creating conservation and
management issues for the resource or direct users of BSAI crab
resources, and is consistent with the goals of the Program (see Section
5 of the RIR for additional detail).
To address the emergency, NMFS must implement an emergency rule
that waives the comment period and delay in effective date otherwise
required by law. The benefits of these waivers will serve the public
interest by allowing for the complete harvest of EBT and WBT crab
within the relatively short amount of time remaining in the 2015/2016
EBT and WBT crab seasons. Any delay in effectiveness will preclude the
ability to completely harvest and process EBT and WBT crab during the
2015/2016 crab fishing year.
Without the waivers, Class A IFQ holders in the EBT and WBT crab
fisheries will not have sufficient time to prosecute these fisheries as
intended. As noted earlier, the EBT and WBT crab fisheries close by
State of Alaska regulation on March 31, 2016. Harvesters are currently
prosecuting the EBT and WBT crab fisheries and due to the unique nature
of the EBT and WBT crab fisheries, harvesters will need as much time as
possible to harvest the 1,441,811 pounds of Tanner crab. Additionally,
for the rule to be effective in providing relief, Class A IFQ holders
need to know as soon as possible that they have available processors to
deliver the remainder of their EBT and WBT Class A IFQ.
Harvesters in the EBT and WBT crab fisheries submitted a petition
for emergency action to the Council shortly before the start of the
Council's December 2015 meeting that began on December 9, 2015. They
asked that the Council revise the custom processing arrangement
exemption to include the EBT and WBT crab fisheries. The fisheries that
receive a custom processing arrangement exemption are specified in the
Crab FMP and applying the exemption to additional fisheries would
require an amendment to the Crab FMP. In order for the Council to
recommend an amendment to the Crab FMP, the Council would need to
notice the public that such an action was being considered prior to a
Council meeting consistent with established public notice requirements.
Because the Council was not aware of this issue until shortly before
its December 2015 meeting, no such notice could have been provided for
the December 2015 Council meeting. The next scheduled meeting of the
Council is February 2016, and that is the earliest date at which the
Council could notice the public that it is considering amending the
Crab FMP.
Secretarial review of fishery management plan (FMP) amendments must
follow the process set forth in section 304 of the Magnuson-Stevens
Act, which requires more time to complete than is available to provide
relief for the EBT and WBT crab fishery participants given the
regulatory closure of the EBT and WBT crab fisheries on March 31, 2016.
While the normal rulemaking process is the preferred avenue for making
regulatory changes, as it provides interested parties the full ability
to comment, the Council and NMFS have determined that in this case, the
cost of the forgone harvest opportunity outweighs the benefit of using
the more protracted, standard process because it would be ineffective
for addressing the immediate issue. The Council initiated a typical FMP
amendment process in December 2015 to address this situation in a more
permanent manner.
The purpose of this rule is to temporarily allow EBT and WBT IPQ
crab to be subject to a custom processing arrangement exemption for the
2015/2016 crab fishing year, while allowing continued analysis of the
issue in a separate, and standard, FMP amendment process. This rule is
needed to allow the complete harvesting and processing of the EBT and
WBT crab fisheries during the 2015/2016 crab fishing year and will
temporarily ameliorate unforeseen adverse economic consequences due to
the insufficient number of adequate processing facilities.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this rule is consistent with the National Standards, other
provisions of the Magnuson-Stevens Act, and other applicable laws.
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. This rule will allow for the full
harvesting and processing of the EBT and WBT crab fisheries and should
prevent economic losses from the limitations on the use of EBT and WBT
IPQ created by the unforeseen lack of adequate processing capacity.
This rule will avoid adverse economic impacts to harvesters,
processors, and communities that would otherwise result if the EBT and
WBT crab fisheries could not be fully harvested during the 2015/2016
crab fishing year. If this rule were delayed to allow for notice and
comment, impacted entities would likely be prevented from harvesting
826,322 pounds of EBT crab and 615,489 pounds of WBT crab that would
otherwise be available to impacted entities through the remainder of
the 2015/2016 crab fishing year. The lost revenue from this forgone
harvest is estimated to be approximately $3.4 million in ex-vessel
value and $4.95 million in first wholesale value. In addition to lost
revenue to harvesters and processors, communities where EBT and WBT
crab are delivered will not receive benefits from labor payments and
tax revenue without this rule. Fishermen, shoreside processors, and
communities that participate in the EBT and WBT crab fisheries would
have limited alternatives to mitigate this significant, negative
economic impact. Providing relief through this rule as soon as possible
is likely to ensure that these crab can be harvested before the
regulatory closure of the EBT and WBT crab fisheries, provide the
associated harvesting and processing revenues, and provide benefits to
communities engaged in these crab fisheries. This rule promotes the
goals and objectives of the Program, the Crab FMP, and the Magnuson-
Stevens Act by removing a restriction that is preventing the otherwise
authorized harvesting and processing of fishery resources.
As explained earlier, the lack of sufficient processing capacity in
the EBT and WBT crab fisheries was not foreseen prior to or at the
start of the EBT and EBT crab fisheries and was only recently
discovered. Harvesters with Class A IFQ in the EBT and WBT crab
fisheries are not responsible for the decisions of processors to cease
operations of processing facilities, and were not aware of the impact
of any operational decisions on their ability to harvest and deliver
their Class A IFQ. Class A IFQ holders are not able to mitigate fishing
operations in a manner that avoids the use of IPQ. Therefore, Class A
IFQ holders cannot undertake actions that will allow them to fully
harvest their EBT and WBT Class A IFQ without being constrained by
regulations that require that IPQ use caps not be exceeded.
Finally, if required to go through notice-and-comment rulemaking,
Class A IFQ holders would not have sufficient time to harvest their
Class A IFQ prior to the closure of the EBT and WBT crab
[[Page 4212]]
fisheries on March 31, 2016. In addition to the notice-and-comment
requirements under the Administrative Procedure Act, the Magnuson-
Stevens Act FMP amendment process sets forth certain requirements that
must be followed, such as a 60-day comment period on an FMP amendment.
Because the EBT and WBT crab fisheries close by regulation on March 31,
2016, there is not enough time to follow the FMP amendment process
prescribed by the Magnuson-Stevens Act and provide sufficient time for
the harvest of EBT and WBT Class A IFQ. NMFS has no way other than this
rule to amend IPQ use cap regulations to provide fishing opportunities
for the EBT and WBT crab fisheries during the 2015/2016 crab fishing
year that would otherwise be forgone. Amending IPQ use cap regulations
in the EBT and WBT crab fisheries through this rule for the remainder
of the 2015/2016 crab fishing year provides immediate economic benefits
that outweigh the value of the deliberative notice-and-comment
rulemaking process.
Similarly, for the reasons above that support the need to implement
this rule in a timely manner, the Assistant Administrator for Fisheries
finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in
effectiveness provision of the Administrative Procedure Act and make
this rule effective immediately upon publication in the Federal
Register. As stated above, this rule will allow for harvesting and
processing of the remainder of the Class A IFQ in the EBT and WBT crab
fisheries for the 2015/2016 crab fishing year, and will prevent
economic losses from the inability to fully harvest and process Class A
IFQ in the EBT and WBT crab fisheries.
This action is being taken pursuant to the emergency provision of
the Magnuson-Stevens Act and is exempt from Office of Management and
Budget review. The RIR prepared for this rule is available from NMFS
(see ADDRESSES).
This rule is exempt from the procedures of the Regulatory
Flexibility Act because this 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. Accordingly, no regulatory flexibility
analysis is required and none has been prepared.
List of Subjects in 50 CFR Part 680
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: January 20, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 680 is amended
as follows:
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. 109-241; Pub. L. 109-479.
0
2. In Sec. 680.42:
0
a. Suspend paragraph (b)(7)(ii) effective January 26, 2016 through June
30, 2016; and
0
b. Add paragraph (b)(7)(iii) effective January 26, 2016 through June
30, 2016.
The addition reads as follows:
Sec. 680.42 Limitations on use of QS, PQS, IFQ, and IPQ.
* * * * *
(b) * * *
(7) * * *
(iii) The following conditions apply:
(A) The IPQ crab is:
(1) BSS IPQ crab with a North region designation;
(2) EAG IPQ crab;
(3) EBT IPQ crab received by an RCR during the 2015/2016 crab
fishing year;
(4) PIK IPQ crab;
(5) SMB IPQ crab;
(6) WAG IPQ crab provided that IPQ crab is processed west of 174
degrees west longitude;
(7) WAI IPQ crab; or
(8) WBT IPQ crab received by an RCR during the 2015/2016 crab
fishing year; and
(B) That IPQ crab is processed at:
(1) Any shoreside crab processor located within the boundaries of a
home rule, first class, or second class city in the State of Alaska in
existence on June 29, 2009; or
(2) Any stationary floating crab processor that is:
(i) Located within the boundaries of a home rule, first class, or
second class city in the State of Alaska in existence on June 29, 2009;
(ii) Moored at a dock, docking facility, or at a permanent mooring
buoy, unless that stationary floating crab processor is located within
the boundaries of the city of Atka in which case that stationary
floating crab processor is not required to be moored at a dock, docking
facility, or at a permanent mooring buoy; and
(iii) Located within a harbor, unless that stationary floating crab
processor is located within the boundaries of the city of Atka on June
29, 2009 in which case that stationary floating crab processor is not
required to be located within a harbor; or
(C) The IPQ crab is:
(1) Derived from PQS that is, or was, subject to a ROFR as that
term is defined at Sec. 680.2;
(2) Derived from PQS that has been transferred from the initial
recipient of those PQS to another person under the requirements
described at Sec. 680.41;
(3) Received by an RCR who is not the initial recipient of those
PQS; and
(4) Received by an RCR within the boundaries of the ECC for which
that PQS and IPQ derived from that PQS is, or was, designated in the
ROFR.
* * * * *
[FR Doc. 2016-01406 Filed 1-25-16; 8:45 am]
BILLING CODE 3510-22-P