[Federal Register Volume 76, Number 31 (Tuesday, February 15, 2011)]
[Proposed Rules]
[Pages 8700-8706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3398]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 100723308-1086-01]
RIN 0648-BA11


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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 37 to the 
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner 
Crabs (FMP). If approved, these regulations would amend the Bering Sea/
Aleutian Islands Crab Rationalization Program by establishing a process 
for eligible contract signatories to request that NMFS exempt holders 
of West-designated individual fishing quota (IFQ) and individual 
processor quota (IPQ) in the Western Aleutian Islands golden king crab 
fishery from the West regional delivery requirements. Federal 
regulations require West-designated golden king crab IFQ to be 
delivered to a processor in the West region of the Aleutian Islands 
with an exact amount of unused West-designated IPQ. However, processing 
capacity may not be available each season. Amendment 37 is necessary to 
prevent disruption to the Western Aleutian Islands golden king crab 
fishery, while providing for the sustained participation of 
municipalities in the region. This proposed action is intended to 
promote the goals and objectives of the Magnuson-Stevens Fishery 
Conservation and Management Act, the FMP, and other applicable law.

DATES: Comments must be received no later than April 1, 2011.

ADDRESSES: You may submit comments, identified by ``RIN 0648-BA11'', by 
any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Fax: (907) 586-7557, Attn: Ellen Sebastian.
    <bullet> Mail: P.O. Box 21668, Juneau, AK 99802.
    Instructions: 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 Amendment 37 to the FMP, the Regulatory Impact 
Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and 
the Categorical Exclusion prepared for this proposed action may be 
obtained from http://www.regulations.gov or from the Alaska Region Web 
site at http://alaskafisheries.noaa.gov. The Environmental Impact 
Statement, RIR, Final Regulatory Flexibility Analysis, and Social 
Impact Assessment prepared for the Crab Rationalization Program are 
available from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS at the above address, e-mailed 
to <a href="/cdn-cgi/l/email-protection#c6898f94879995b3a4abafb5b5afa9a886a9aba4e8a3a9b6e8a1a9b0"><span class="__cf_email__" data-cfemail="e1aea8b3a0beb294838c889292888e8fa18e8c83cf848e91cf868e97">[email protected]</span></a>, or faxed to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 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 FMP. The North Pacific Fishery Management Council 
(Council) prepared the FMP under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 
et seq., as amended by the Consolidated Appropriations Act of 2004 
(Pub. L. 108-199, section 801). Amendments 18 and 19 to the FMP 
implemented the BSAI Crab Rationalization Program (Program) in a final 
rule published on March 2, 2005 (70 FR 10174). Regulations implementing 
the FMP and all amendments to the Program are at 50 CFR part 680, and 
general regulations related to fishery management are at 50 CFR part 
600.

Background

    In 2005, NMFS established the Program as a catch share program for 
nine crab fisheries in the BSAI. The Individual Fishing Quota (IFQ) 
portion of the Program 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 IFQ, which 
is an exclusive harvest privilege for a portion of the annual total 
allowable catch (TAC). Under the program, QS holders can form 
cooperatives to pool the harvest of the IFQ on fewer vessels to 
minimize operational costs.
    NMFS also issued processor quota share (PQS) under the Program. 
Each year, PQS yields an exclusive privilege to receive (for 
processing) a portion of the IFQ in each of the nine BSAI crab 
fisheries. This annual exclusive processing privilege is called IPQ. A 
portion of the QS issued yields IFQ that is required to be delivered to 
a processor with a like amount of unused IPQ. IFQ derived from CVO QS 
is subject to annual designation as either Class A IFQ or Class B IFQ. 
Ninety percent of the IFQ derived from CVO QS for a fishery 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. 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 and region. Class B IFQ is not required to be delivered to 
a processor with IPQ.
    In most crab fisheries, the Program established regional 
designations for QS and PQS to ensure that municipalities

[[Page 8701]]

that were historically active as processing ports continue to receive 
socioeconomic benefits from crab deliveries or to encourage the 
development of processing capacity in specific isolated municipalities. 
To accomplish this, the Program imposes regional delivery requirements 
to specific geographic regions based on historic geographic delivery 
and processing patterns. Regulations implementing the Program establish 
regional delivery requirements at 50 CFR 680.40(b)(2) and (d)(2).

Western Aleutian Islands Golden King Crab Fishery

    The Western Aleutian Islands golden king crab (Lithodes 
aequispinus) (WAG) fishery is subject to regional delivery 
requirements. For the WAG fishery, 50 percent of the Class A IFQ and a 
corresponding amount of IPQ are designated for delivery and processing 
in the West region (west of 174[deg] W. long.). The remaining 50 
percent of the Class A IFQ and IPQ, the Class B CVC IFQ, CPO IFQ, and 
CPC IFQ are not subject to regional delivery requirements. These 
regional delivery requirements are intended to promote the development 
of fisheries infrastructure in the cities of Adak and Atka, two 
isolated municipalities located in the West region. Historically, the 
City of Adak has been the primary port for deliveries of WAG and the 
allocation of a portion of the TAC to the City of Adak recognized that 
historic participation in the fishery. The West regional delivery 
requirements for the WAG fishery are at 50 CFR 680.40(c)(4) and (e)(2).
    WAG harvested with West-designated Class A IFQ must be delivered to 
a processor located in the West region with West-designated IPQ. The 
only shore-based processing facility capable of processing WAG in this 
region has been located in the community of Adak. In recent years, the 
City of Atka has begun to develop processing capacity; however, the 
City of Atka currently lacks the capacity to process WAG crab. 
Therefore, QS and PQS holders have been dependent on the Adak facility 
for the processing of West-designated WAG. Additionally, the Adak 
facility, the sole shore-based processing facility in the region, 
closed in April of 2009 and has not yet reopened. The Adak facility's 
owners officially filed for Chapter 11 bankruptcy in September 2009, 
and the proceedings have yet to be resolved. The closure of the Adak 
facility prevents catcher vessels from delivering WAG harvested with 
West-designated IFQ in that region. Similarly, holders of IPQ with a 
West regional designation lack an economically viable facility at which 
to receive deliveries or to process WAG.
    In October 2009, fishery participants petitioned the Council for 
approval of an emergency rule to suspend the regional designation for 
the 2009/2010 WAG fishing season. At the December 2009 meeting, the 
Council recommended emergency action due in part to public testimony 
that alternative processing capacity in the West region was not 
economically feasible in the short term. Specifically, processor 
representatives testified that operating a floating processor in the 
West region for this season would not be profitable, due to the short 
length of the golden king crab fishery, the low TAC, the expected price 
per pound for golden king crab, and the costs associated with operating 
in that remote location.
    On February 18, 2010, NMFS published an emergency action to exempt 
West-designated IFQ and West-designated IPQ for the WAG fishery from 
the West regional designation until August 17, 2010 (75 FR 7205). 
Removing the West regional designation from this IFQ and IPQ 
temporarily relaxed the requirements that these shares be used in the 
West region. NMFS extended the emergency action on August 17, 2010 (75 
FR 50716), and the exemption is in effect through February 20, 2011.

Objectives and Rationale for the Proposed Action

    At its April 2010 meeting, the Council adopted Amendment 37 to the 
FMP. If approved, Amendment 37 would address the lack of processing 
capacity in the West region by establishing a process for eligible 
contract signatories, to request that NMFS exempt the WAG fishery from 
the West regional delivery requirements. The Council and NMFS recognize 
that the regional delivery requirements would be untenable if 
processing capacity is not available in the region, potentially 
resulting in unutilized TAC. Amendment 37 would establish a means to 
enhance stability in the fishery, while continuing to promote the 
sustained participation of the municipalities intended to benefit from 
the West regional delivery requirements.

Description of the Proposed Action

    Amendment 37 would establish regulations for eligible contract 
signatories in the WAG fishery to apply for an exemption to the West 
regional delivery requirements that would apply to all West-designated 
IFQ and IPQ holders. Under this proposed action, eligible contract 
signatories could contractually agree to complete an application to 
NMFS requesting an exemption from the West regional delivery 
requirements. Eligible participants could submit an application to NMFS 
at anytime during the crab fishing year. Upon approval of a completed 
application, NMFS would exempt all West-designated Class A IFQ and IPQ 
from the West regional delivery requirements for the remainder of the 
crab fishing year. Such an exemption would enable all West-designated 
Class A IFQ and IPQ holders to deliver and receive WAG crab at 
processing facilities outside of the West region, thereby promoting the 
full utilization of the TAC when processing capacity is not available 
in the West region.
    This action differs from the emergency rules in that it would not 
remove the regional designation established under 50 CFR 680.40(c)(4) 
and (e)(2). Instead, NMFS is proposing to preserve the regional 
delivery requirements in order to promote the reestablishment of 
processing capacity in the West region. Under this proposed action, 
NMFS would continue to annually issue WAG Class A IFQ and IPQ with a 
West regional delivery requirement but would exempt West-designated IFQ 
holders and IPQ holders from the West regional delivery requirements if 
the required parties apply for and are granted an exemption. By 
removing the delivery requirements only if eligible contract 
signatories, who would be comprised of QS holders, PQS holders, and the 
cities of Adak and Atka, agree to apply for an exemption, this action 
maintains the West regional delivery requirements in all years.
    In some years, it may not be possible for fishery participants to 
predict the availability of West region processing capacity. Therefore, 
this proposed action provides the flexibility necessary for eligible 
contract signatories to request an exemption at any point during a crab 
fishing year. In order to fully utilize the TAC in a given year, it may 
be necessary for fishery participants to respond quickly to unforeseen 
disruptions in processing capacity. From the date an exemption is 
approved by NMFS, all West-designated WAG IFQ could be delivered east 
of 174[deg] W. long. until the end of that crab fishing year.

Eligible Contract Signatories

    Amendment 37 would establish regulations that identify the eligible 
contract signatories as those QS holders, PQS holders, and 
municipalities who would be eligible to apply for an exemption from the 
West regional delivery requirements. The Council's recommendation 
required the inclusion of QS and PQS holders that are

[[Page 8702]]

substantially invested in the fishery and the municipalities intended 
to benefit from the regional delivery requirements. In selecting the 
eligible contract signatories, the Council sought to limit the 
necessary contract parties to participants that best meet the intent of 
this proposed action and participants able to respond relatively 
quickly to a lack of in-region processing capacity.
    The Council selected application requirements that are necessary 
for the eligible contract signatories to request an exemption: (1) Any 
person or company that holds in excess of 20-percent of the West-
designated WAG QS; (2) any person or company that holds in excess of 
20-percent of the West-designated WAG PQS; and (3) the cities of Adak 
and Atka. Currently, participants in the WAG fishery that hold QS or 
PQS are able to verify their portion relative to other QS or PQS 
holders by accessing the Alaska Region Web site at http://alaskafisheries.noaa.gov . For the purposes of this action, NMFS 
proposes to post the QS and PQS holdings on its website following the 
end of the transfer application period (August 1) and prior to the 
start of the WAG fishery (August 15). Participants holding 20-percent 
or less of either share type would have no direct input into the 
contract negotiations or applications; however, once granted, an 
exemption would apply to all West-designated IFQ and IPQ holders. Once 
granted, the exemption does not obligate an IFQ or IPQ holder who is 
not a contract signatory to deliver outside of the West region, but 
does provide that flexibility.
    As described in the Classification section of this preamble, the 
Council considered several thresholds of QS and PQS ownership when 
considering eligibility criteria. The Council recommended a greater 
than 20-percent minimum participation threshold for eligibility because 
the inclusion of share holders with less economic incentive to harvest 
or process West-designated WAG could impede effective negotiations. 
Participants with less than or equal to 20-percent ownership could 
withhold participation in an exemption to extract more favorable terms 
from larger entities with greater economic incentive to fully harvest 
and process the IFQ and IPQ. IFQ and IPQ holders that are substantially 
invested in the fishery are more likely to act quickly to ensure that 
TAC is fully utilized. By establishing the greater than 20-percent 
threshold, this proposed action is intended to provide a balance 
between efficiency and the participation of QS and PQS holders. 
Additionally, these eligibility criteria are intended to balance the 
interests of WAG fishery QS and PQS holders with the municipalities 
intended to benefit from the West regional delivery requirements.
    The Council selected the 20-percent threshold for CVO QS holders in 
recognition that consolidation in the fleet has led to fewer vessels 
actively fishing. As the RIR (see ADDRESSES) for this proposed action 
shows, during the 2009/2010 crab fishing year there were eight QS 
holders that were eligible to receive West-designated IFQ in the WAG 
fishery; however, only two QS holders were both subject to the regional 
delivery requirements and met the greater-than-20-percent threshold 
proposed by this action. The combined holdings of the remaining six CVO 
QS holders represent only 29 percent of the total West designated IFQ 
in the WAG fishery. These CVO QS holders have consolidated their IFQ 
under the cooperative provisions implemented under the Program, at 50 
CFR 680.21, and are not actively participating in the fishery.
    Similar consolidation has occurred with PQS holders resulting in 
three of the seven PQS holders controlling 95 percent of the West 
designated PQS, during the 2009/2010 crab fishing year. Of these, only 
two PQS holders would have met the 20-percent threshold for West-
designated WAG PQS specified in the action. The remaining four CVO PQS 
holders represent only 12 percent of the total West-designated IFQ in 
the WAG fishery. Notably, the owner of the Adak processing facility 
holds nearly 11 percent of the remaining West-designated PQS. The owner 
of the Adak facility and other minor holders of West-designated PQS 
would not qualify under the 20-percent eligibility threshold 
recommended by the Council and proposed under this action. The Council 
realized the proposed threshold would exclude the Adak facility 
operator; however, the uncertain status of the PQS held by the Adak 
facility prevented the Council from designating the Adak facility as a 
necessary contract signatory under this proposed action.
    Similarly, the Council considered, but declined to include, shore-
based processors as necessary signatories to an application to request 
an exemption from the regional delivery requirements. Other processing 
facilities in the region have not substantially participated in this 
fishery and were not considered to be substantially invested in the WAG 
fishery. The Council noted that the interests of the shore-based 
processing activities and associated revenue for the cities of Adak and 
Atka should instead be protected by the inclusion of the cities of Adak 
and Atka as required signatories. As the intended beneficiaries of the 
West regional delivery requirements, the proposed action would require 
the approval of both the City of Adak and the City of Atka to exempt 
IFQ and IPQ holders from the West regional delivery requirements. This 
approach is also consistent with the overall goal of the Program to 
provide stability for municipalities in the West region, not specific 
processing facilities, through the regional delivery requirement.
    This proposed action ensures that the municipalities intended to 
benefit from the regional delivery requirements participate in any 
agreement to deliver West-designated WAG east of 174[deg] W. long. If 
approved, NMFS would require the unanimous consent of all eligible 
contract signatories, to ensure that the interest of the cities of Adak 
and Atka are protected. The Council determined that the inclusion of 
the cities of Adak and Atka as required signatories would continue to 
promote the development of consistent processing capacity in the West 
region because these municipalities would likely withhold consent to an 
exemption to foster local deliveries. In particular, the City of Adak 
is likely to protect the regional designation because the sole, albeit 
nonfunctioning, crab processing facility is located in the City of 
Adak, and the city benefits by receiving and processing WAG. A 
municipality that typically benefits from taxes levied on the processor 
for deliveries in the WAG fishery receives little or no revenue when 
the shore-based processing capacity is unreliable or nonexistent. 
Presumably, contract negotiations would be facilitated if QS holders 
and PQS holders provide some economic benefits to the municipalities in 
return for each community's agreement to an exemption from the delivery 
requirements. For example, reimbursement of these lost revenues may 
provide adequate incentive for a community to consent to allow 
deliveries to occur east of 174[deg] W. long. Alternatively, a 
community withholding consent to an exemption could attract the 
development of additional shore-based processing infrastructure to the 
region. In the short term, the municipalities are likely to agree to an 
exemption from the delivery requirements; however, annual unanimous 
consent for an exemption ensures that the long-term interests of these 
municipalities are considered in any negotiations with the eligible QS 
and PQS holders.
    Although IFQ and IPQ holders are also likely to support an 
exemption from the West regional delivery

[[Page 8703]]

requirements in the short term, the Council concluded that the costs 
associated with delivering WAG outside of the West region are likely to 
promote the development of processing capacity inside the West region. 
Harvesters and processors pursuing processing capacity outside of the 
region are likely to incur higher costs associated with the increased 
transit time and fuel cost required to deliver outside of this remote 
location. IFQ and IPQ holders noted the operational efficiencies if 
there is reliable processing capacity in the West region.

Approval of Exemption

    NMFS recognizes the importance of the West regional delivery 
requirements and would require the unanimous agreement of all eligible 
contract signatories on an annual basis to exempt the WAG Class A IFQ 
from the West regional delivery requirements. To be approved, all 
parties meeting the eligibility requirements at the time the 
application is submitted must signify their agreement of the exemption 
on the application. NMFS would grant an exemption to the regional 
delivery requirements, if all eligible contract signatories submit a 
completed application form, including an affidavit affirming that a 
master contract has been signed by all eligible contract signatories.

Proposed Changes to the Program

    This proposed rule would modify or add regulations at 50 CFR 680.4, 
680.7(a)(2), and 680.7(a)(4). These proposed changes would apply as 
described in the following sections of this preamble.

Application

    The proposed rule would add regulations at 50 CFR 680.4(o) to 
establish the process for eligible participants to request an exemption 
for all West-designated IFQ and IPQ from regulations requiring that WAG 
be processed west of 174[deg] W. long. The proposed regulations require 
all eligible contract signatories to submit a completed application 
before NMFS would approve an exemption for all IFQ and IPQ holders from 
the West regional delivery requirements in the WAG fishery. For NMFS to 
consider an application for approval, all eligible signatories, or 
their authorized representatives, must sign and date an affidavit 
affirming that all information provided on the application is true, 
correct, and complete to the best of his or her knowledge and belief.
    Due to the complexities associated with responding quickly to 
unforeseen disruption of processing capacity and the remote nature of 
the fishery, it may be necessary for authorized representatives to sign 
for the person, company, or municipality designated in proposed 
regulations as an eligible contract signatory at 50 CFR 680.4(o)(2)(i). 
For the cities of Adak and Atka, it is assumed that the Mayor or City 
Clerk would sign on behalf of the City; however, another authorized 
representative of the City could sign on behalf of the City as long as 
documentation of that authority is demonstrated on the application. All 
authorized representatives must clearly identify the eligible contract 
signatories on whose behalf they are signing the application, and 
attach documentation supporting that authority.
    The applicants must provide information describing how eligible 
contract signatories meet the requirements and that all eligible 
signatories are included on the application. Eligible contract 
signatories must provide their name and NMFS person ID, or document the 
identity and authority of an authorized representative. Additional 
documents supporting eligibility under the proposed regulations at 50 
CFR 680.4(o)(2)(i) may be attached to an application to facilitate 
approval.

Approval of Application

    If NMFS receives a completed application submitted under one of the 
approved methods described in the proposed regulations at 50 CFR 
680.4(o), then NMFS will process that application as soon as possible. 
Once received by NMFS, the approval process would include verification 
that:
    <bullet> Each eligible contract signatory affirms that a master 
contract, authorizing the completion of the application to request that 
NMFS grant an exemption to West-designated IFQ and West-designated IPQ 
holders in the Western Aleutian Golden king crab fishery from the West 
regional delivery requirements, has been completed;
    <bullet> Each eligible contract signatory has signed the 
application to NMFS requesting an exemption from the West regional 
delivery requirements proposed at 50 CFR 680.4(o)(2)(i); and,
    <bullet> Each eligible contract signatory has signed an affidavit 
affirming that (1) a master contract has been signed and (2) all 
applicable information provided in the application is true, correct, 
and complete to the best of his or her knowledge and belief.
    Based on experience with similar actions, NMFS would likely 
complete the review of an application within 10 calendar days. Contract 
signatories should consider the potential time lag between submission 
of a completed application and the effective date of NMFS approval in 
master contract negotiations. NMFS approval of an annual exemption from 
the Western Aleutian Islands golden king crab West regional delivery 
requirements will be made publicly available at the NMFS Web site at 
http://alaskafisheries.noaa.gov.
    The evaluation of an application for an annual exemption would 
require a decision-making process that would be subject to 
administrative appeal. Applications not meeting the requirements will 
not be approved, and NMFS would issue an initial administrative 
determination (IAD) to indicate the deficiencies and discrepancies in 
the information (or the evidence submitted in support of the 
application) and provide information on how an applicant could appeal 
an IAD. The appeals process is described under 50 CFR 679.43. However, 
if an application is denied, eligible contract signatories could 
reapply at any time during a crab fishing year. This program is 
designed to be flexible and includes no deadlines for submission or 
limits on the number of times applications could be submitted to NMFS.

Duration of Exemption

    To expedite an exemption from the delivery requirements, the 
proposed regulations at 50 CFR 680.4(o)(3) would establish the 
effective date of the exemption as the date the completed application 
was approved by NMFS. To avoid potential uncertainty about whether an 
application was received, the proposed regulations would require an 
application to retain objective written evidence that the NMFS Alaska 
Region received an application. For example, if the application is sent 
via U.S. Postal Service, the applicants would need to retain the 
delivery confirmation receipt, or other appropriate documentation 
issued by the U.S. Postal Service.
    This proposed rule would also establish the duration of an 
exemption. Consistent with the Council's intent to retain the West 
regional delivery requirements unless NMFS annually approves an 
application for an exemption, exemptions would commence on the 
effective date and expire at the end of that crab fishing year (June 
30). Therefore, an exemption must be agreed upon by all eligible 
contract signatories annually. IPQ or IFQ processed outside of the West 
region prior to the effective date would not be exempt from the West 
regional delivery requirements. Proposed

[[Page 8704]]

regulations at 50 CFR 680.4(o)(3) and (o)(4), and prohibitions at 50 
CFR 680.7(a)(2) and (a)(4), would provide for a contractually defined 
exemption while retaining the regional delivery requirements, at 50 CFR 
680.40(c)(4) and 50 CFR 680.40(e)(2), as the default for the WAG 
fishery.

Classification

    Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, 
the NMFS Assistant Administrator has determined that this proposed rule 
is consistent with the FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration of 
comments received during the public comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.

Initial Regulatory Flexibility Analysis

    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the proposed action, why it is 
being considered, and the legal basis for this proposed action are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble and are not repeated here. A summary of 
the IRFA follows. A copy of the IRFA is available from NMFS (see 
ADDRESSES).

Number and Description of Small Entities Regulated by the Proposed 
Action

    The preferred alternative directly regulates certain QS holders, 
IFQ holders, PQS holders, IPQ holders, the cities of Adak and Atka, and 
possibly certain shore-based processors in those two municipalities. 
The fishery has 15 QS holders, of which 14 are estimated to be small 
entities. One of these entities is a community development quota (CDQ) 
group; one is a wholly owned subsidiary of a CDQ group; and the others 
do not exceed the $4.0 million threshold.
    In the 2009/2010 season, the fishery had three holders of West 
region QS, two of which are estimated to be small entities. One of 
these is a wholly owned subsidiary of a CDQ group, and the other is 
estimated to have annual receipts below the $4.0 million threshold. The 
fishery had seven holders of West region PQS, of which four are 
estimated to be small entities. One entity is a CDQ group; another is a 
wholly owned subsidiary of a CDQ group, and two have fewer than 500 
employees. One entity is a CDQ group; another is a wholly owned 
subsidiary of a CDQ group, and the third has fewer than 500 employees. 
Both the City of Adak and the City of Atka qualify as small entities, 
as neither has more than 50,000 residents.

Duplicate, Overlapping, or Conflicting Federal Rules

    No duplication, overlap, or conflict between this proposed action 
and existing Federal rules has been identified.

Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities

    In addition to the preferred alternative, the Council considered 
alternatives that would have required the consent of holders of less 
than 20-percent of the pools of QS and PQS and the consent of shore-
based processors in Adak or Atka that processed over a threshold (i.e., 
5-percent, 10-percent, or 20-percent) of the West-designated shares in 
the year preceding the exemption. The Council elected not to select 
these options, as the large share holders could more efficiently 
process the exemption, and the small share holders would be adequately 
represented by the required parties to the exemption (including the 
cities of Adak and Atka). The inclusion of share holders with less 
economic incentive to harvest or process West-designated WAG could 
impede effective negotiations by withholding participation in an 
exemption to extract more favorable terms from larger entities with 
greater economic incentive to fully harvest and process the IFQ and 
IPQ. IFQ and IPQ holders that are substantially invested in the fishery 
are more likely to act quickly to ensure that TAC is fully utilized. 
Similarly, holders of significant amounts of PQS are only likely to 
support an exemption in years when processing capacity is unavailable 
in the West region, thereby facilitating the processing needs of all 
IPQ holders.
    The Council also considered a variety of other approaches to 
address the problem identified in the purpose and need statement. One 
approach considered was an exemption that would be available only after 
a factual finding of the absence of processing capacity. This provision 
could be administered either directly by NMFS or by an arbitrator 
selected by the interested parties. The Council elected not to advance 
this alternative, as factual findings of the absence of processing 
capacity may be administratively unworkable. With mobile processing 
platforms, capacity availability can change in a relatively short time 
period. Determinations of the availability of capacity may not be 
possible, given the potential for short-term changes in capacity. Small 
entities that are IFQ or IPQ holders would be disadvantaged by this 
alternative, since the exemption may be unavailable during unforeseen 
interruptions in processing capacity.
    The Council also considered a provision under the preferred 
alternative that would have prohibited any party required to consent to 
the exemption from unreasonably withholding consent to the exemption. 
The proposed provision would have been administered by an arbitrator 
jointly selected by the required parties. Although such a condition 
might be desirable, NMFS would likely not be able to administer this 
provision. Even with an arbitrator, NMFS would be required to provide 
the interested parties with the opportunity to appeal any arbitrator's 
decision. Under the appeal, NMFS would be required to make a de novo 
finding (i.e., an original finding without deference to the 
arbitrator's decision). As a result, the use of an arbitrator may delay 
the granting of the exemption. In addition, NMFS may be unable to 
expeditiously process any claim, if factual matters are disputed. To 
accommodate time constraints associated with contesting a party's 
withholding consent to an exemption, a timeline for application for the 
exemption would need to be developed. This timeline would limit 
flexibility and could prevent the exemption from achieving its intended 
purpose.
    The Council also elected not to advance an alternative to remove 
the West regional delivery requirements altogether. Since the West 
regional delivery requirements are intended to facilitate the 
development of processing in the region, when such development is 
feasible, removal of the exemption would be inappropriate. Although 
this alternative would have removed the burden of the West regional 
delivery requirements from small entities holding QS, PQS, IFQ, and 
IPQ, the alternative would have removed any regulatory inducement to 
process in the West region. The potential future benefit of those 
requirements would therefore be denied to the cities of Adak and Atka, 
which are also defined as small entities. Although the exemption 
created by the preferred alternative could reduce the potential for the 
development of processing capacity in the cities of Adak and Atka, it 
also would provide these two small entities

[[Page 8705]]

with the ability to withhold consent, as a means of inducing PQS and 
IPQ holders to develop processing capacity in the West region.

Recordkeeping and Reporting Requirements

    The reporting, recordkeeping, and other compliance requirements 
could be increased under the proposed action, if parties agree to 
pursue an exemption. This proposed rule would add recordkeeping and 
reporting requirements needed to implement the preferred alternative. 
This includes the application to NMFS for an exemption from the West 
regional delivery requirements proposed at 50 CFR 680.4(o).
    The recordkeeping, reporting, and compliance requirements necessary 
to implement the preferred alternative would apply to the QS holders, 
PQS holders, and the municipalities meeting the requirements for 
eligible signatories, proposed at 50 CFR 680.4(o).
    Participation in any application to exempt IFQ and IPQ from the 
West regional delivery requirements is voluntary, but may be necessary 
to fully utilize the TAC in seasons when in-region processing 
facilities cannot meet the capacity requirements of the fishery. Each 
designated signatory to the application must meet the requirements of 
the application process proposed at 50 CFR 680.4(o). To request an 
annual exemption, all designated signatories must contractually agree 
to submit to NMFS one completed application form, including a signed 
affidavit. The proposed recordkeeping and reporting requirements are 
expected to be minimal because all eligible signatories must work 
together to apply, thereby sharing the cost of developing and 
submitting an application. The time and cost involved in developing and 
submitting an application would be less per eligible signatory than it 
would be if each signatory developed an application individually.
    The professional skills necessary to prepare the reporting and 
recordkeeping requirements that would apply to small entities under 
this proposed rule include the ability to read, write, and understand 
English; the ability to use a computer and the Internet; and the 
authority to take actions on behalf of the designated signatory. Each 
of the small entities must be capable of complying with the 
requirements of this proposed rule and have the financial resources to 
obtain any additional legal or technical expertise that they require to 
advise them.

Collection-of-Information Requirements

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval under OMB Control No. 0648-0514.
    Public reporting burden per response is estimated to average 2 
hours for the proposed Application for Annual Exemption from the 
Western Aleutian Islands Golden King Crab West regional delivery 
requirements and 4 hours for the appeal letter if the application is 
denied, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information, to NMFS 
(see ADDRESSES) and by e-mail to <a href="/cdn-cgi/l/email-protection#f8b7b1aab9a7ab8d9a95918b8b919796b897959ad69d9788d69f978e"><span class="__cf_email__" data-cfemail="a9e6e0fbe8f6fadccbc4c0dadac0c6c7e9c6c4cb87ccc6d987cec6df">[email protected]</span></a> or fax to 
202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: February 9, 2011.
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 
proposed to be amended as follows:

PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF 
ALASKA

    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.

    2. In Sec.  680.4, add paragraph (o) to read as follows:


Sec.  680.4  Permits.

* * * * *
    (o) Exemption from Western Aleutian Islands golden king crab West 
regional delivery requirements--(1) Request for an Annual Exemption 
from Western Aleutian Islands golden king crab West regional delivery 
requirements. The eligible contract signatories (see qualifications at 
Sec.  680.4(o)(2)(i)) may submit an application to NMFS to request that 
NMFS exempt West designated IFQ and West designated IPQ for the Western 
Aleutian Islands golden king crab (WAG) fishery from the West regional 
delivery requirements at Sec.  680.7(a)(2) and (a)(4). All eligible 
contract signatories must submit one completed copy of the application 
form. The application must be submitted to NMFS using one of the 
following methods:
    (i) Mail: Regional Administrator, c/o Restricted Access Management 
Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; or
    (ii) Fax: 907-586-7354; or
    (iii) Hand delivery or carrier: NMFS, Room 713, 709 West 9th 
Street, Juneau, AK 99801.
    (2) Application form. The application form is available on the NMFS 
Alaska region Web site (http://alaskafisheries.noaa.gov) or from NMFS 
at the address in paragraph (o)(1)(i) of this section. All information 
fields on the application form must be accurately completed, 
including--
    (i) Identification of Eligible Contract Signatories. Full name of 
each eligible contract signatory; NMFS person ID; and appropriate 
information that documents the signatories meet the requirements. If 
the application is completed by an individual who is the authorized 
representative, then documentation demonstrating the authorization must 
accompany the application. Eligible contract signatories are--
    (A) QS holders. Any person that holds in excess of 20-percent of 
the West designated WAG QS at the time the contract was signed, or 
their authorized representative.
    (B) PQS holders. Any person that holds in excess of 20-percent of 
the West designated WAG PQS at the time the contract was signed, or 
their authorized representative.
    (C) Municipalities. designated officials from both the City of Adak 
and the City of Atka or an authorized representative.

[[Page 8706]]

    (ii) Affidavit affirming master contract has been signed. Each 
eligible contract signatory, as described in paragraph (o)(2)(i) of 
this section, must sign and date an Affidavit affirming that a master 
contract has been signed to authorize the completion of the application 
to request that NMFS exempt West designated IFQ and West designated IPQ 
for the WAG fishery from the West regional delivery requirements. The 
eligible contract signatories must affirm on the Affidavit that all 
information is true, correct, and complete to the best of his or her 
knowledge and belief.
    (3) Effective Date. A completed application must be approved by 
NMFS before any person may use WAG IFQ or IPQ with a West regional 
designation outside of the West region during a crab fishing year. If 
approved, the effective date of the exemption is the date the 
application was approved by NMFS. Any delivery of WAG IFQ or IPQ with a 
West regional designation outside of the West region prior to the 
effective date of the exemption is prohibited under Sec.  680.7(a)(2) 
and (a)(4).
    (4) Duration. An exemption from West regional delivery requirements 
is only valid for the remainder of the crab fishing year during which 
the application was approved by NMFS. The exemption expires at the end 
of the crab fishing year (June 30).
    (5) Approval--(i) NMFS will approve a completed application for the 
exemption from Western Aleutian Islands golden king crab West regional 
delivery requirements if all eligible contract signatories meet the 
requirements specified in paragraph (o)(2)(i) of this section.
    (ii) The Regional Administrator will not consider an application to 
have been received if the applicant cannot provide objective written 
evidence that NMFS Alaska Region received it.
    (iii) NMFS approval of an annual exemption from the Western 
Aleutian Islands golden king crab West regional delivery requirements 
will be made publicly available at the NMFS Web site at http://alaskafisheries.noaa.gov.
    2. In Sec.  680.7, revise paragraphs (a)(2) and (a)(4) to read as 
follows:


Sec.  680.7  Prohibitions.

* * * * *
    (a) * * *
    (2) Receive CR crab harvested under an IFQ permit in any region 
other than the region for which the IFQ permit is designated, unless 
deliveries of West designated WAG IFQ are received pursuant to a NMFS 
approved exemption from the regional delivery requirements, as 
described under Sec.  680.4(o).
* * * * *
    (4) Use IPQ in any region other than the region for which the IPQ 
is designated, unless West designated WAG IPQ is used pursuant to a 
NMFS approved exemption from the regional delivery requirements, as 
described under Sec.  680.4(o).
* * * * *
[FR Doc. 2011-3398 Filed 2-14-11; 8:45 am]
BILLING CODE 3510-22-P


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