[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Rules and Regulations]
[Pages 4206-4212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01406]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 151223999-6040-01]
RIN 0648-BF68


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

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: This rule addresses how individual processing quota (IPQ) use 
caps apply to Bering Sea Chionoecetes bairdi Tanner crab fisheries: The 
eastern C. bairdi Tanner (EBT) and the western C. bairdi Tanner (WBT). 
This rule exempts EBT and WBT IPQ crab that is custom processed at a 
facility through contractual arrangements with the facility owners from 
being applied against the IPQ use cap of the facility owners. This rule 
applies to EBT and WBT IPQ crab received for custom processing during 
the 2015/2016 crab fishing year. Without this rule, substantial amounts 
of EBT and WBT Class A IFQ crab would remain unharvested, and 
fishermen, shoreside processors, and communities that participate in 
the EBT and WBT fisheries have no viable alternatives to mitigate the 
resulting significant, negative economic effects before the fisheries 
end for the season. This rule is necessary to temporarily relieve a 
restriction that is preventing the full harvest of EBT and WBT Class A 
IFQ crab. This rule is intended to promote the goals and objectives of 
the Magnuson-Stevens Fishery Conservation and Management Act, the 
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner 
Crabs, and other applicable law.

DATES: Effective January 26, 2016 through June 30, 2016. Comments must 
be received by February 25, 2016.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2015-0168, 
by any of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0168 click the 
``Comment Now!'' icon, complete the

[[Page 4207]]

required fields, and enter or attach your comments.
    <bullet> Mail: Submit written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, 
AK 99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).
    Electronic copies of the Regulatory Impact Review (RIR) and the 
Categorical Exclusion prepared for this rule may be obtained from 
http://www.regulations.gov or from the Alaska Region Web site at http://alaskafisheries.noaa.gov. The Environmental Impact Statement (Program 
EIS), RIR (Program RIR), Final Regulatory Flexibility Analysis (Program 
FRFA), and Social Impact Assessment prepared for the Crab 
Rationalization Program are available from the NMFS Alaska Region Web 
site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Keeley Kent, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the king and Tanner crab 
fisheries in the U.S. exclusive economic zone of the Bering Sea and 
Aleutian Islands (BSAI) under the Fishery Management Plan for Bering 
Sea/Aleutian Islands King and Tanner Crabs (Crab FMP). The Council 
prepared, and NMFS approved, the Crab FMP under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. 
fisheries and implementing the Crab FMP appear at 50 CFR parts 600 and 
680.
    This rule modifies regulations that specify how IPQ use caps apply 
to IPQ issued for EBT and WBT crab fisheries for the 2015/2016 crab 
fishing year. The 2015/2016 crab fishing year ends on June 30, 2016. 
The following sections describe (1) the BSAI crab fisheries, (2) 
general background on IPQ use caps and custom processing arrangements, 
(3) IPQ use caps applicable to the EBT and WBT crab fisheries, and (4) 
this rule and justification for emergency action.

The BSAI Crab Fisheries

    The Crab Rationalization Program (Program) was implemented on March 
2, 2005 (70 FR 10174). The Program established a limited access 
privilege program for nine crab fisheries in the BSAI, including the 
EBT and WBT crab fisheries, and assigned quota share (QS) to persons 
based on their historic participation in one or more of those nine BSAI 
crab fisheries during a specific time period. Under the Program, NMFS 
issued four types of QS: catcher vessel owner (CVO) QS was assigned to 
holders of License Limitation Program (LLP) licenses who delivered 
their catch to shoreside crab processors or to stationary floating crab 
processors; catcher/processor vessel owner QS was assigned to LLP 
license holders who harvested and processed their catch at sea; 
captains and crew on board catcher/processor vessels were issued 
catcher/processor crew QS; and captains and crew on board catcher 
vessels were issued catcher vessel crew QS. Each year, a person who 
holds QS may receive an exclusive harvest privilege for a portion of 
the annual total allowable catch, called individual fishing quota 
(IFQ).
    NMFS also issued processor quota share (PQS) under the Program. 
Each year PQS yields an exclusive privilege to process a portion of the 
IFQ in each of the nine BSAI crab fisheries. This annual exclusive 
processing privilege is called individual processor quota (IPQ). Only a 
portion of the QS issued yields IFQ that is required to be delivered to 
a processor with IPQ. Quota share derived from deliveries made by 
catcher vessel owners (i.e., CVO QS) is subject to designation as 
either Class A IFQ or Class B IFQ. Ninety percent of the IFQ derived 
from CVO QS is designated as Class A IFQ, and the remaining 10 percent 
is designated as Class B IFQ. Class A IFQ must be matched and delivered 
to a processor with IPQ. Class B IFQ is not required to be delivered to 
a specific processor with IPQ. Each year there is a one-to-one match of 
the total pounds of Class A IFQ with the total pounds of IPQ issued in 
each crab fishery.
    NMFS issued QS and PQS for the EBT and WBT crab fisheries. Unlike 
the QS and PQS issued for most other crab fisheries, the QS and PQS 
issued for the EBT and WBT crab fisheries are not subject to regional 
delivery and processing requirements, commonly known as 
regionalization. Therefore, the Class A IFQ that results from EBT and 
WBT QS, and the IPQ that results from EBT and WBT PQS, can be delivered 
to, and processed at, any otherwise eligible processing facility.
    In addition, the PQS and resulting IPQ issued for the EBT and WBT 
crab fisheries are not subject to right-of-first-refusal (ROFR) 
provisions included in the Program. The ROFR provisions provide certain 
communities with an option to purchase PQS or IPQ that would otherwise 
be used outside of the community holding the ROFR.
    Because the EBT and WBT crab fisheries are not subject to 
regionalization or ROFR provisions, crab harvested under a Class A IFQ 
permit in these fisheries can be delivered to processors in a broad 
geographic area more easily than crab harvested under Class A IFQ 
permits in crab fisheries subject to regionalization and ROFR 
provisions. The rationale for exempting the EBT and WBT crab fisheries 
from regionalization and ROFR provisions is described in the Program 
EIS (see ADDRESSES), and in the final rule implementing the Program 
(March 2, 2005, 70 FR 10174).

General Background on IPQ Use Caps and Custom Processing Arrangements

    When the Council recommended the Program, it expressed concern 
about the potential for excessive consolidation of QS and PQS, and the 
resulting annual IFQ and IPQ. Excessive consolidation could have 
adverse effects on crab markets, price setting negotiations between 
harvesters and processors, employment opportunities for harvesting and 
processing crew, tax revenue to communities in which crab are landed, 
and other factors considered and described in the Program EIS (see 
ADDRESSES). To address these concerns, the Program limits the amount of 
QS that a person can hold, the amount of IFQ that a person can use, and 
the amount of IFQ that can be used on board a vessel. Similarly, the 
Program limits the amount of PQS that a person can hold, the amount of 
IPQ that a person can use, and the amount of IPQ that can be processed 
at a given facility. These limits are commonly referred to as use caps.
    In each of the nine BSAI crab fisheries under the Program, a person 
is limited to holding no more than 30 percent of the PQS initially 
issued in the fishery and using no more than the amount of IPQ 
resulting from 30 percent of the initially issued PQS in a given 
fishery, with a limited exemption for persons receiving more than 30 
percent of the initially issued PQS. The rationale for the IPQ use caps 
is described in the Program EIS (see ADDRESSES) and the final rule 
implementing the Program (70

[[Page 4208]]

FR 10174, March 2, 2005). According to information in section 6.1.1 of 
the RIR (see ADDRESSES), no person in the EBT or WBT crab fisheries 
received in excess of 30 percent of the initially issued PQS. 
Therefore, no person may use an amount of EBT or WBT IPQ greater than 
an amount resulting from 30 percent of the initially issued EBT or WBT 
PQS.
    The Program is designed to minimize the potential for a single 
person to evade the PQS and IPQ use caps through the use of corporate 
affiliations or other legal relationships. To accomplish this, Sec.  
680.7(a)(7) prohibits an IPQ holder from using more IPQ than the 
maximum amount of IPQ that may be held by that person and states that a 
person's IPQ use cap is calculated by summing the total amount of IPQ 
that is held by that person and IPQ held by other persons who are 
affiliated with that person. The term ``affiliation'' is defined in 
Sec.  680.2. Additional terms used in the definition of ``affiliation'' 
are described in Sec.  680.2, and NMFS refers the reader to that 
section for additional detail.
    Under Sec.  680.7(a)(7), any IPQ crab that is ``custom processed'' 
at a facility an IPQ holder owns will be applied against the IPQ use 
cap of the facility owner, unless specifically exempted by Sec.  
680.42(b)(7). A custom processing arrangement exists when an IPQ holder 
has a contract with the owners of a processing facility to have his or 
her crab processed at that facility, and the IPQ holder (1) does not 
have an ownership interest in that processing facility, and (2) is not 
otherwise affiliated with the owners of that processing facility. In 
custom processing arrangements, the IPQ holder contracts with a 
facility operator to have the IPQ crab processed according to that IPQ 
holder's specifications. Custom processing arrangements typically occur 
when an IPQ holder does not own a shoreside processing facility or 
cannot economically operate a stationary floating crab processor.
    Shortly after implementation of the Program, the Council submitted 
and NMFS approved Amendment 27 to the Crab FMP (74 FR 25449, May 28, 
2009). Amendment 27 was designed to improve operational efficiencies in 
crab fisheries with historically low total allowable catches or that 
occur in more remote regions by exempting certain IPQ crab processed 
under a custom processing arrangement from applying against the IPQ use 
cap of the owner of the facility at which IPQ crab are custom 
processed. For ease of reference, this preamble refers to this 
exemption as a ``custom processing arrangement exemption.'' NMFS refers 
the reader to the preamble to the final rule implementing Amendment 27 
to the Crab FMP for additional information regarding the rationale for 
custom processing arrangement exemptions in specific BSAI crab 
fisheries. Section 680.42(b)(7) describes the BSAI crab fisheries and 
other requirements that qualify for a custom processing arrangement 
exemption.
    Section 680.42(b)(7)(ii)(A) lists the six BSAI crab fisheries for 
which the custom processing arrangement exemption applies. These are: 
Bering Sea C. opilio with a North Region designation, Eastern Aleutian 
Islands golden king crab, Pribilof Island blue and red king crab, Saint 
Matthew blue king crab, Western Aleutian golden king crab processed 
west of 174[deg] W. long., and Western Aleutian Islands red king crab. 
As described later in this preamble, the custom processing arrangement 
exemption implemented under Amendment 27 does not apply to custom 
processing arrangements in the EBT and WBT crab fisheries.
    Under the custom processing arrangement exemption, NMFS does not 
apply any IPQ used at a facility through a custom processing 
arrangement against the IPQ use cap of the owners of that facility 
provided there is no affiliation between the person whose IPQ crab is 
processed at that facility and the IPQ holders who own that facility. 
Effectively, Sec.  680.42(b)(7)(ii)(A) does not count IPQ crab that are 
custom processed at a facility owned by an IPQ holder against the IPQ 
use cap of the owner of the processing facility. In such a case, a 
person who holds IPQ and who owns a processing facility is credited 
only with the amount of IPQ crab used by that person, or any affiliates 
of that person, when calculating IPQ use caps. In sum, these 
regulations allow processing facility owners who also hold IPQ to be 
able to use their facility, or facilities, to establish custom 
processing arrangements with other IPQ holders to process more crab, 
thereby improving throughput and providing a more economically viable 
processing operation.
    Section 680.42(b)(7)(ii)(B) provides a custom processing 
arrangement exemption in the six BSAI crab fisheries described above 
provided that the facility, at which the IPQ crab are custom processed, 
meets specific requirements. Under the custom processing arrangement 
exemption, IPQ crab that are custom processed do not count against the 
IPQ use cap of persons owning the facility if the facility is located 
within the boundaries of a home rule, first class, or second class city 
in the State of Alaska on the effective date of regulations 
implementing Amendment 27 (June 29, 2009) and is either (1) a shoreside 
crab processor or (2) a stationary floating crab processor that is 
located within a harbor and moored at a dock, docking facility, or 
other permanent mooring buoy, with specific provisions applicable to 
the City of Atka. The specific provisions applicable to facilities 
operating within the City of Atka are not directly relevant to the EBT 
and WBT crab fisheries and this rule, and are not addressed further. 
Additional information on the facilities to which the custom processing 
arrangement exemption applies is found in the preamble to the final 
rule implementing Amendment 27 (74 FR 25449, May 28, 2009) and is not 
repeated here.
    Finally, Sec.  680.7(a)(8) prohibits a shoreside crab processor or 
a stationary floating crab processor in which no IPQ holder has a 10 
percent or greater ownership interest in the processing facility from 
receiving more than 30 percent of the IPQ issued for a particular crab 
fishery. However, IPQ crab processed under a custom processing 
arrangement does not apply against the limit on the maximum amount of 
IPQ crab that can be processed at a facility. These regulations 
effectively allow more than 30 percent of the IPQ for the six BSAI crab 
fisheries to be processed at a facility if there is no affiliation 
between the person whose IPQ crab is processed at that facility and the 
IPQ holders who own that facility.
    Regulations implementing Amendment 27 also modified the calculation 
of IPQ use caps for IPQ crab subject to ROFR provisions (see Sec.  
680.42(b)(7)(ii)(C)). However, as noted earlier in this preamble, ROFR 
requirements do not apply to EBT and WBT crab. Therefore, modifications 
to IPQ use cap calculations for IPQ crab subject to ROFR provisions are 
not described further in this rule.

IPQ Use Caps Applicable to the EBT and WBT Crab Fisheries

    As noted earlier, EBT and WBT IPQ crab that are processed under a 
custom processing arrangement are not exempt from IPQ use caps and will 
apply against a person's IPQ use cap if that person owns the facility 
(i.e., has a 10 percent or greater direct or indirect ownership 
interest) at which those IPQ crab are processed. Given the percentage 
at which the IPQ use caps are set, a minimum of four persons who are 
not affiliated with each other must receive and process EBT or WBT IPQ 
crab to ensure that all Class A IFQ can be delivered and processed with 
no person exceeding the IPQ use caps. Similarly, at least four 
facilities that are not

[[Page 4209]]

affiliated through common ownership (i.e., a 10 percent or greater 
direct or indirect ownership interest) must be used to receive and 
process EBT and WBT IPQ crab to ensure that all Class A IFQ can be 
delivered and processed with no facility exceeding the IPQ use caps.
    When the Council recommended and NMFS implemented Amendment 27, the 
Council and NMFS did not deem it necessary to grant the EBT and WBT 
crab fisheries a custom processing arrangement exemption. The preamble 
to the proposed rule implementing Amendment 27 explains that the 
Council and NMFS did not recommend a custom processing arrangement 
exemption for EBT and WBT IPQ crab because ``Bering Sea C. bairdi crab 
are not subject to regionalization and therefore the need to exempt 
custom processing arrangements from the IPQ use cap does not appear 
necessary because crab can be effectively delivered to any processor 
with matching IPQ in any location'' (73 FR 54351, September 19, 2008).
    Since the implementation of Amendment 27, there has been additional 
consolidation in the BSAI crab processing sector. As Section 6.2.1 of 
the RIR describes (see ADDRESSES), during the 2015/2016 crab fishing 
year there appear to be only three unique unaffiliated persons 
(processors) who have received EBT and WBT IPQ crab at their 
facilities. These three processors are the Maruha-Nichiro Corporation, 
which includes Alyeska Seafoods, Peter Pan Seafoods, and Westward 
Seafoods; Trident Seafoods; and Unisea Seafoods. Information in section 
6.2.1 indicates that these three processors also own and operate all 
facilities that have processed EBT and WBT IPQ crab during the 2015/
2016 crab fishing year.
    The net effect of this processor consolidation is that there are 
less than the required minimum of four unique and unaffiliated 
processors active in the EBT and WBT crab fisheries. Therefore, only 90 
percent of the Class A IFQ can be delivered to, and only 90 percent of 
the IPQ may be used at, facilities owned and operated by Maruha-Nichiro 
Corporation, Trident Seafoods, and Unisea Seafoods without causing the 
IPQ use caps to be exceeded. The remaining 10 percent of the 2015/2016 
EBT Class A IFQ/IPQ, or 826,322 pounds, and the remaining 10 percent of 
the 2015/2016 WBT Class A IFQ/IPQ, or 615,489 pounds, must be either 
delivered to processing facilities that are not affiliated with Maruha-
Nichiro Corporation, Trident Seafoods, or Unisea Seafoods or left 
unharvested (see Section 6.2.1 of the RIR for more detail). In total, 
10 percent of the Class A IFQ/IPQ for both the EBT and WBT crab 
fisheries equals 1,441,811 pounds.
    Sections 7.1 and 7.2 of the RIR indicate that developing or using 
an alternative processing facility not affiliated with the Maruha-
Nichiro Corporation, Trident Seafoods, or Unisea Seafoods would not be 
a feasible processing option for the remainder of the 2015/2016 crab 
fishing year for several reasons. First, even though the 2015/2016 crab 
fishing year ends on June 30, 2016, under the Crab FMP, the Crab FMP 
authorizes the State of Alaska to establish specific regulations that 
define the length of a crab fishing season during a crab fishing year. 
By State of Alaska regulation, the EBT and WBT 2015/2016 crab fishing 
seasons end on March 31, 2016. This regulatory closure date of the EBT 
and WBT crab fisheries provides very limited time for IPQ holders to 
find an alternative processing facility.
    Second, although there are alternative shoreside processing 
facilities not affiliated with the Maruha-Nichiro Corporation, Trident 
Seafoods, or Unisea Seafoods, most of those facilities are located far 
from the Bering Sea crab fishing grounds, such as in Kodiak, Alaska. 
Transporting EBT or WBT crab to those locations would result in longer 
trips with increased fuel and operating costs for harvesters, result in 
lost fishing days while the crab are being transported, and increase 
the potential for deadloss (death) of crab, which becomes increasingly 
likely the longer that the crab are held in storage tanks and 
transported. In addition, alternative shoreside processing facilities, 
regardless of their location to the BSAI crab fishing grounds, have not 
provisioned and planned their processing operations to accommodate a 
relatively small proportion of the EBT and WBT IPQ allocations (i.e., 
only 10 percent of the EBT and WBT IPQ). The costs of provisioning 
those alternative shoreside facilities for a relatively small amount of 
crab and without adequate planning would likely impose substantial 
additional costs relative to processing operations provisioned and 
planned prior to the start of the EBT and WBT crab fisheries. 
Deliveries to alternative shoreside processing facilities would impose 
a substantial burden and cost on Class A IFQ holders in terms of added 
delivery costs and time.
    Third, sections 7.1 and 7.2 of the RIR indicate that using a 
stationary floating crab processor would not be a feasible processing 
option for the remainder of the 2015/2016 crab fishing year. 
Establishing a contract with a stationary floating crab processor, 
outfitting the vessel, and establishing a market for delivered Class A 
IFQ EBT and WBT crab in the short amount of time available before the 
end of the fisheries would present many of the same logistical 
challenges that are present for alternative shoreside processing 
facilities.
    Finally, any IPQ holder hoping to secure an alternative shoreside 
processing facility or a stationary floating crab processor will have 
very little negotiating leverage with any unaffiliated processing 
facility given the amount of time remaining for the EBT and WBT crab 
season. That lack of negotiating leverage in establishing delivery 
terms and conditions could impose additional costs on IPQ holders and 
harvesters that may make such deliveries uneconomic. Sections 7.1 and 
7.2 of the RIR conclude that there do not appear to be any viable 
delivery options available for 10 percent of the EBT and WBT Class A 
IFQ during the remainder of the 2015/2016 crab fishing year.

This Rule and Justification for Emergency Action

    This rule temporarily suspends the existing Sec.  680.42(b)(7)(ii) 
and adds a temporary Sec.  680.42(b)(7)(iii) that includes EBT and WBT 
IPQ crab received during the 2015/2016 crab fishing year to the list of 
BSAI crab fisheries already receiving a custom processing arrangement 
exemption. This allows EBT and WBT IPQ crab received for custom 
processing by the three processors operating in these fisheries to 
qualify for a custom processing arrangement exemption and not apply 
against the IPQ use caps for these processors. With this rule, all EBT 
and WBT IPQ crab received during the 2015/2016 crab fishing year under 
custom processing arrangements at the facilities owned by the Maruha-
Nichiro Corporation, Trident Seafoods, or Unisea Seafoods will not be 
counted against the IPQ use cap of the facility or the facility owners. 
The custom processing arrangement exemption implemented by this rule 
will allow the three processors to custom process crab for unaffiliated 
IPQ holders who have custom processing arrangements with the 
processors, thereby allowing harvesters with Class A IFQ to fully 
harvest and deliver their allocations of EBT and WBT crab to IPQ 
holders with a custom processing arrangement at facilities operating in 
the these fisheries.
    Section 305(c) of the Magnuson-Stevens Act provides authority for 
rulemaking to address an emergency. Under that section, a regional 
fishery management council may recommend

[[Page 4210]]

emergency rulemaking if it finds an emergency exists. NMFS' Policy 
Guidelines for the Use of Emergency Rules provide that the only legal 
prerequisite for such rulemaking is that an emergency must exist, and 
that NMFS must have an administrative record justifying emergency 
regulatory action and demonstrating compliance with the Magnuson-
Stevens Act and the National Standards (see NMFS Instruction 01-101-07 
(March 31, 2008) and 62 FR 44421, August 21, 1997). Emergency 
rulemaking is intended for circumstances that are ``extremely urgent,'' 
where ``substantial harm to or disruption of the . . . fishery . . . 
would be caused in the time it would take to follow standard rulemaking 
procedures.''
    Under NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 
44421, August 21, 1997), the phrase ``an emergency exists involving any 
fishery'' is defined as a situation that meets the following three 
criteria:
    (1) Results from recent, unforeseen events or recently discovered 
circumstances; and
    (2) Presents serious conservation or management problems in the 
fishery; and
    (3) Can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process.
    The following sections review each of these criteria and describe 
why the Council and NMFS determined that allowing EBT and WBT IPQ crab 
to qualify for a custom processing arrangement exemption for the 
remainder of the 2015/2016 crab fishing year meets these criteria.

Criterion 1--Recent, Unforeseen Events or Recently Discovered 
Circumstances

    The Council and NMFS recently discovered that the processors 
currently receiving EBT and WBT crab are constrained by the IPQ use 
caps from being able to fully process all Class A IFQ issued for the 
EBT and WBT crab fisheries in 2015/2016. The one processing facility 
that previously operated in the EBT and WBT crab fisheries, and that 
was not affiliated with the Maruha-Nichiro Corporation, Trident 
Seafoods, or Unisea Seafoods, recently terminated its 2015/2016 BSAI 
crab processing operations. Harvesters with the Intercooperative Crab 
Exchange (ICE) notified the Council and NMFS that given these 
operational factors, the application of IPQ use caps in the EBT and WBT 
fisheries could limit their ability to fully harvest their Class A IFQ 
allocations. ICE is a crab cooperative that represents most of the EBT 
and WBT QS holders and receives most of Class A IFQ in the EBT and WBT 
crab fisheries. ICE submitted a petition to the Council requesting that 
the Council recommend an emergency rule to provide a custom processing 
arrangement exemption for EBT and WBT IPQ crab on December 9, 2015. The 
Council recommended an emergency rule to provide that custom processing 
arrangement exemption on December 15, 2015.
    Harvesters with EBT and WBT Class A IFQ and the Council noted that 
harvesters are not responsible for the operational decisions of 
processors, and harvesters were not aware until recently of the impact 
of this decision on IPQ use cap calculations and their ability to fully 
harvest and deliver their Class A IFQ. Harvesters with Class A IFQ have 
stated that they did not become aware of the lack of adequate 
processing capacity under the IPQ use caps until after the EBT and WBT 
crab fisheries were underway for the 2015/2016 crab fishing year. 
Consequently, harvesters with Class A IFQ did not foresee that the IPQ 
use cap would constrain them from delivering the full amount of their 
EBT and WBT Class A IFQ allocations.
    Section 680.20(h) requires Class A IFQ holders to ``share match'' 
with processors holding available IPQ as a condition of making crab 
deliveries. Harvesters with Class A IFQ were able to share match their 
EBT and WBT Class A IFQ before the fishery start date of October 15, 
2015, and reasonably concluded they would be able to deliver their 
Class A IFQ crab to specific IPQ holders operating at specific 
facilities. The application of the IPQ use caps in the EBT and WBT crab 
fisheries, the consolidation of processors receiving EBT and EBT Class 
A IFQ, and the lack of a custom processing arrangement exemption for 
EBT and WBT IPQ constrain the ability for Class A IFQ holders to fully 
harvest and deliver their crab given the processing options available 
in the EBT and WBT crab fisheries. The Council and NMFS determined that 
this is a recent and unforeseen event due to recently discovered 
circumstances outside of the control of Class A IFQ holders. The 
consolidation of processors below the minimum needed to process all of 
the EBT and WBT Class A IFQ without exceeding the IPQ use caps was not 
foreseen by the Council and NMFS and was recently discovered after the 
start of the 2015/2016 EBT and EBT crab fishing seasons.

Criterion 2--Presents Serious Conservation or Management Problems in 
the Fishery

    The Council and NMFS determined that this criterion is met because 
without an emergency rule there will be a substantial adverse economic 
impact on harvesters, processors, and communities. Without an emergency 
rule, as much as 10 percent of the Class A IFQ for both the EBT and WBT 
crab fisheries, or 1,441,811 pounds of crab, will be unable to be 
harvested due to an insufficient number of adequate processing 
facilities that can receive Class A IFQ without IPQ holders exceeding 
their IPQ use caps. The lost revenue from this forgone harvest is 
estimated to be approximately $ 3.4 million in ex-vessel value and $ 
4.95 million in first wholesale value based on estimated ex-vessel and 
wholesale values of EBT and WBT crab in 2015/2016 (see Sections 7.1 and 
7.2 of the RIR for additional detail).
    Without a custom processing arrangement exemption, harvesters with 
Class A EBT and WBT IFQ would be unable to harvest allocations provided 
to them due to limitations imposed on IPQ holders and processors that 
receive EBT and WBT crab would not be able to fully process the EBT and 
WBT crab resource. In addition to lost revenue to harvesters and 
processors, communities where EBT and WBT crab are delivered will not 
receive benefits from labor payments and tax revenue without this rule. 
This rule is the only mechanism to restore the forgone harvest and lost 
revenue because other BSAI crab fisheries that could substitute for 
this lost revenue are fully allocated and are not available to 
compensate EBT and WBT Class A IFQ holders. Section 7 of the RIR 
provides additional detail on the economic impacts of this rule.
    The Council and NMFS also determined that implementation of this 
rule will not create conservation issues with regard to BSAI crab 
generally, or the EBT and WBT crab fisheries specifically. This rule 
will allow Class A IFQ holders in the EBT and WBT crab fisheries to 
fully harvest their IFQ allocations, but still limit the overall amount 
of harvest in these fisheries to the IFQ allocations authorized for the 
2015/2016 crab fishing year.

Criterion 3--Can Be Addressed Through Emergency Rulemaking for Which 
the Immediate Benefits Outweigh the Value of Notice and Comment 
Rulemaking

    NMFS and the Council have determined that the emergency situation 
created by the lack of adequate processing facilities that can be used 
to

[[Page 4211]]

receive all EBT and WBT IPQ crab can be addressed by emergency 
regulations. As explained earlier in this preamble, creating a 
temporary custom processing arrangement exemption through this rule 
will allow harvesters to fully harvest their Class A IFQ allocations in 
the EBT and WBT crab fisheries without creating conservation and 
management issues for the resource or direct users of BSAI crab 
resources, and is consistent with the goals of the Program (see Section 
5 of the RIR for additional detail).
    To address the emergency, NMFS must implement an emergency rule 
that waives the comment period and delay in effective date otherwise 
required by law. The benefits of these waivers will serve the public 
interest by allowing for the complete harvest of EBT and WBT crab 
within the relatively short amount of time remaining in the 2015/2016 
EBT and WBT crab seasons. Any delay in effectiveness will preclude the 
ability to completely harvest and process EBT and WBT crab during the 
2015/2016 crab fishing year.
    Without the waivers, Class A IFQ holders in the EBT and WBT crab 
fisheries will not have sufficient time to prosecute these fisheries as 
intended. As noted earlier, the EBT and WBT crab fisheries close by 
State of Alaska regulation on March 31, 2016. Harvesters are currently 
prosecuting the EBT and WBT crab fisheries and due to the unique nature 
of the EBT and WBT crab fisheries, harvesters will need as much time as 
possible to harvest the 1,441,811 pounds of Tanner crab. Additionally, 
for the rule to be effective in providing relief, Class A IFQ holders 
need to know as soon as possible that they have available processors to 
deliver the remainder of their EBT and WBT Class A IFQ.
    Harvesters in the EBT and WBT crab fisheries submitted a petition 
for emergency action to the Council shortly before the start of the 
Council's December 2015 meeting that began on December 9, 2015. They 
asked that the Council revise the custom processing arrangement 
exemption to include the EBT and WBT crab fisheries. The fisheries that 
receive a custom processing arrangement exemption are specified in the 
Crab FMP and applying the exemption to additional fisheries would 
require an amendment to the Crab FMP. In order for the Council to 
recommend an amendment to the Crab FMP, the Council would need to 
notice the public that such an action was being considered prior to a 
Council meeting consistent with established public notice requirements. 
Because the Council was not aware of this issue until shortly before 
its December 2015 meeting, no such notice could have been provided for 
the December 2015 Council meeting. The next scheduled meeting of the 
Council is February 2016, and that is the earliest date at which the 
Council could notice the public that it is considering amending the 
Crab FMP.
    Secretarial review of fishery management plan (FMP) amendments must 
follow the process set forth in section 304 of the Magnuson-Stevens 
Act, which requires more time to complete than is available to provide 
relief for the EBT and WBT crab fishery participants given the 
regulatory closure of the EBT and WBT crab fisheries on March 31, 2016. 
While the normal rulemaking process is the preferred avenue for making 
regulatory changes, as it provides interested parties the full ability 
to comment, the Council and NMFS have determined that in this case, the 
cost of the forgone harvest opportunity outweighs the benefit of using 
the more protracted, standard process because it would be ineffective 
for addressing the immediate issue. The Council initiated a typical FMP 
amendment process in December 2015 to address this situation in a more 
permanent manner.
    The purpose of this rule is to temporarily allow EBT and WBT IPQ 
crab to be subject to a custom processing arrangement exemption for the 
2015/2016 crab fishing year, while allowing continued analysis of the 
issue in a separate, and standard, FMP amendment process. This rule is 
needed to allow the complete harvesting and processing of the EBT and 
WBT crab fisheries during the 2015/2016 crab fishing year and will 
temporarily ameliorate unforeseen adverse economic consequences due to 
the insufficient number of adequate processing facilities.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is consistent with the National Standards, other 
provisions of the Magnuson-Stevens Act, and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment because it would be impracticable and 
contrary to the public interest. This rule will allow for the full 
harvesting and processing of the EBT and WBT crab fisheries and should 
prevent economic losses from the limitations on the use of EBT and WBT 
IPQ created by the unforeseen lack of adequate processing capacity. 
This rule will avoid adverse economic impacts to harvesters, 
processors, and communities that would otherwise result if the EBT and 
WBT crab fisheries could not be fully harvested during the 2015/2016 
crab fishing year. If this rule were delayed to allow for notice and 
comment, impacted entities would likely be prevented from harvesting 
826,322 pounds of EBT crab and 615,489 pounds of WBT crab that would 
otherwise be available to impacted entities through the remainder of 
the 2015/2016 crab fishing year. The lost revenue from this forgone 
harvest is estimated to be approximately $3.4 million in ex-vessel 
value and $4.95 million in first wholesale value. In addition to lost 
revenue to harvesters and processors, communities where EBT and WBT 
crab are delivered will not receive benefits from labor payments and 
tax revenue without this rule. Fishermen, shoreside processors, and 
communities that participate in the EBT and WBT crab fisheries would 
have limited alternatives to mitigate this significant, negative 
economic impact. Providing relief through this rule as soon as possible 
is likely to ensure that these crab can be harvested before the 
regulatory closure of the EBT and WBT crab fisheries, provide the 
associated harvesting and processing revenues, and provide benefits to 
communities engaged in these crab fisheries. This rule promotes the 
goals and objectives of the Program, the Crab FMP, and the Magnuson-
Stevens Act by removing a restriction that is preventing the otherwise 
authorized harvesting and processing of fishery resources.
    As explained earlier, the lack of sufficient processing capacity in 
the EBT and WBT crab fisheries was not foreseen prior to or at the 
start of the EBT and EBT crab fisheries and was only recently 
discovered. Harvesters with Class A IFQ in the EBT and WBT crab 
fisheries are not responsible for the decisions of processors to cease 
operations of processing facilities, and were not aware of the impact 
of any operational decisions on their ability to harvest and deliver 
their Class A IFQ. Class A IFQ holders are not able to mitigate fishing 
operations in a manner that avoids the use of IPQ. Therefore, Class A 
IFQ holders cannot undertake actions that will allow them to fully 
harvest their EBT and WBT Class A IFQ without being constrained by 
regulations that require that IPQ use caps not be exceeded.
    Finally, if required to go through notice-and-comment rulemaking, 
Class A IFQ holders would not have sufficient time to harvest their 
Class A IFQ prior to the closure of the EBT and WBT crab

[[Page 4212]]

fisheries on March 31, 2016. In addition to the notice-and-comment 
requirements under the Administrative Procedure Act, the Magnuson-
Stevens Act FMP amendment process sets forth certain requirements that 
must be followed, such as a 60-day comment period on an FMP amendment. 
Because the EBT and WBT crab fisheries close by regulation on March 31, 
2016, there is not enough time to follow the FMP amendment process 
prescribed by the Magnuson-Stevens Act and provide sufficient time for 
the harvest of EBT and WBT Class A IFQ. NMFS has no way other than this 
rule to amend IPQ use cap regulations to provide fishing opportunities 
for the EBT and WBT crab fisheries during the 2015/2016 crab fishing 
year that would otherwise be forgone. Amending IPQ use cap regulations 
in the EBT and WBT crab fisheries through this rule for the remainder 
of the 2015/2016 crab fishing year provides immediate economic benefits 
that outweigh the value of the deliberative notice-and-comment 
rulemaking process.
    Similarly, for the reasons above that support the need to implement 
this rule in a timely manner, the Assistant Administrator for Fisheries 
finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness provision of the Administrative Procedure Act and make 
this rule effective immediately upon publication in the Federal 
Register. As stated above, this rule will allow for harvesting and 
processing of the remainder of the Class A IFQ in the EBT and WBT crab 
fisheries for the 2015/2016 crab fishing year, and will prevent 
economic losses from the inability to fully harvest and process Class A 
IFQ in the EBT and WBT crab fisheries.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from Office of Management and 
Budget review. The RIR prepared for this rule is available from NMFS 
(see ADDRESSES).
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act because this rule is not subject to the requirement to 
provide prior notice and opportunity for public comment pursuant to 5 
U.S.C. 553 or any other law. Accordingly, no regulatory flexibility 
analysis is required and none has been prepared.

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: January 20, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 680 is amended 
as follows:

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

0
1. The authority citation for 50 CFR part 680 continues to read as 
follows:

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

0
2. In Sec.  680.42:
0
a. Suspend paragraph (b)(7)(ii) effective January 26, 2016 through June 
30, 2016; and
0
b. Add paragraph (b)(7)(iii) effective January 26, 2016 through June 
30, 2016.
    The addition reads as follows:


Sec.  680.42  Limitations on use of QS, PQS, IFQ, and IPQ.

* * * * *
    (b) * * *
    (7) * * *
    (iii) The following conditions apply:
    (A) The IPQ crab is:
    (1) BSS IPQ crab with a North region designation;
    (2) EAG IPQ crab;
    (3) EBT IPQ crab received by an RCR during the 2015/2016 crab 
fishing year;
    (4) PIK IPQ crab;
    (5) SMB IPQ crab;
    (6) WAG IPQ crab provided that IPQ crab is processed west of 174 
degrees west longitude;
    (7) WAI IPQ crab; or
    (8) WBT IPQ crab received by an RCR during the 2015/2016 crab 
fishing year; and
    (B) That IPQ crab is processed at:
    (1) Any shoreside crab processor located within the boundaries of a 
home rule, first class, or second class city in the State of Alaska in 
existence on June 29, 2009; or
    (2) Any stationary floating crab processor that is:
    (i) Located within the boundaries of a home rule, first class, or 
second class city in the State of Alaska in existence on June 29, 2009;
    (ii) Moored at a dock, docking facility, or at a permanent mooring 
buoy, unless that stationary floating crab processor is located within 
the boundaries of the city of Atka in which case that stationary 
floating crab processor is not required to be moored at a dock, docking 
facility, or at a permanent mooring buoy; and
    (iii) Located within a harbor, unless that stationary floating crab 
processor is located within the boundaries of the city of Atka on June 
29, 2009 in which case that stationary floating crab processor is not 
required to be located within a harbor; or
    (C) The IPQ crab is:
    (1) Derived from PQS that is, or was, subject to a ROFR as that 
term is defined at Sec.  680.2;
    (2) Derived from PQS that has been transferred from the initial 
recipient of those PQS to another person under the requirements 
described at Sec.  680.41;
    (3) Received by an RCR who is not the initial recipient of those 
PQS; and
    (4) Received by an RCR within the boundaries of the ECC for which 
that PQS and IPQ derived from that PQS is, or was, designated in the 
ROFR.
* * * * *
[FR Doc. 2016-01406 Filed 1-25-16; 8:45 am]
 BILLING CODE 3510-22-P