8700 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 

environment or the conservation of 

energy resources. 

Decided: February 10, 2011. 

By the Board, Chairman Elliott, Vice 

Chairman Nottinham, and Commissioner 

Mulvey. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. 2011–3396 Filed 2–14–11; 8:45 am] 

BILLING CODE 4915–01–P 

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. 

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 Westdesignated golden king crab IFQ to be 

delivered to a processor in the West 

region of the Aleutian Islands with an 

exact amount of unused Westdesignated 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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: (907) 586–7557, Attn: Ellen 

Sebastian. 

• 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 

OIRA_Submission@omb.eop.gov, 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 


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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° 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 Westdesignated 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 Westdesignated 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° 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 


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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 Westdesignated 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° 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° W. long. 

Alternatively, a community withholding 

consent to an exemption could attract 

the development of additional shorebased 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 


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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° 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: 

• 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; 

• 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, 

• 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 


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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 shortterm 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 


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Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 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 inregion 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 

OIRA_Submission@omb.eop.gov 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 § 680.4, add paragraph (o) to read 

as follows: 

§ 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 § 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 

§ 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. 


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8706 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 

(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 § 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 § 680.7, revise paragraphs (a)(2) 

and (a)(4) to read as follows: 

§ 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 

§ 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 § 680.4(o). 

* * * * * 

[FR Doc. 2011–3398 Filed 2–14–11; 8:45 am] 

BILLING CODE 3510–22–P 


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