4206 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Rules and Regulations 

the earliest time that is medically 

appropriate. 

(3)(i) Having a current physical or 

mental disorder and behavior associated 

with the disorder that may pose, or has 

posed, a threat to the property, safety, or 

welfare of the alien or others; or 

(ii) Having a history of a physical or 

mental disorder and behavior associated 

with the disorder, which behavior has 

posed a threat to the property, safety, or 

welfare of the alien or others and which 

behavior is likely to recur or lead to 

other harmful behavior; or 

(iii) Having drug abuse or drug 

addiction; 

(c) The board shall consist of the 

following: 

(1) In circumstances covered by 

paragraph (b)(1) of this section, the 

board shall consist of at least one 

medical officer who is experienced in 

the diagnosis and treatment of the 

communicable disease for which the 

medical notification has been made; 

(2) In circumstances covered by 

paragraph (b)(2) of this section, the 

board shall consist of at least one 

medical officer who is experienced in 

the diagnosis and treatment of the 

vaccine-preventable disease for which 

the medical notification has been made; 

(3) In circumstances covered by 

paragraph (b)(3) of this section, the 

board shall consist of at least one 

medical officer who is experienced in 

the diagnosis and treatment of the 

physical or mental disorder, or 

substance-related disorder for which 

medical notification has been made. 

(d) The decision of the majority of the 

board shall prevail, provided that at 

least two medical officers concur in the 

judgment of the board. 

(e) Reexamination shall include: 

(1) Review of all records submitted by 

the alien, other witnesses, or the board; 

(2) Use of any laboratory or additional 

studies which are deemed clinically 

necessary as a result of the physical 

examination or pertinent information 

elicited from the alien’s medical history; 

(3) Consideration of statements 

regarding the alien’s physical or mental 

condition made by a physician after his/ 

her examination of the alien; and 

(4) A physical or psychiatric 

examination of the alien performed by 

the board, at the board’s discretion; 

(f) An alien who is to be reexamined 

shall be notified of the reexamination 

not less than 5 days prior thereto. 

(g) The alien, at his/her own cost and 

expense, may introduce as witnesses 

before the board such physicians or 

medical experts as the board may in its 

discretion permit; provided that the 

alien shall be permitted to introduce at 

least one expert medical witness. If any 

witnesses offered are not permitted by 

the board to testify (either orally or 

through written testimony), the record 

of the proceedings shall show the reason 

for the denial of permission. 

(h) Witnesses before the board shall 

be given a reasonable opportunity to 

review the medical notification and 

other records involved in the 

reexamination and to present all 

relevant and material evidence orally or 

in writing until such time as the 

reexamination is declared by the board 

to be closed. During the course of the 

reexamination the alien’s attorney or 

representative shall be permitted to 

question the alien and he/she, or the 

alien, shall be permitted to question any 

witnesses offered in the alien’s behalf or 

any witnesses called by the board. If the 

alien does not have an attorney or 

representative, the board shall assist the 

alien in the presentation of his/her case 

to the end that all of the material and 

relevant facts may be considered. 

(i) Any proceedings under this section 

may, at the board’s discretion, be 

conducted based on the written record, 

including through written questions and 

testimony. 

(j) The findings and conclusions of 

the board shall be based on its medical 

examination of the alien, if any, and on 

the evidence presented and made a part 

of the record of its proceedings. 

(k) The board shall report its findings 

and conclusions to DHS, and shall also 

give prompt notice thereof to the alien 

if his/her reexamination has been based 

on his/her appeal. The board’s report to 

DHS shall specifically affirm, modify, or 

reject the findings and conclusions of 

prior examining medical officers. 

(l) The board shall issue its medical 

notification in accordance with the 

applicable provisions of this part if it 

finds that an alien it has reexamined has 

a Class A or Class B condition. 

(m) If the board finds that an alien it 

has reexamined does not have a Class A 

or Class B condition, it shall issue its 

medical notification in accordance with 

the applicable provisions of this part. 

(n) After submission of its report, the 

board shall not be reconvened, nor shall 

a new board be convened, in connection 

with the same application for admission 

or for adjustment of status, except upon 

the express authorization of the 

Director. 

Dated: January 12, 2016. 

Sylvia M. Burwell, 

Secretary. 

[FR Doc. 2016–01418 Filed 1–25–16; 8:45 am] 

BILLING CODE 4163–18–P 

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. 

SUMMARY: This rule addresses how 

individual processing quota (IPQ) use 

caps apply to Bering Sea Chionoecetes 

bairdi Tanner crab fisheries: The eastern 

C. bairdi Tanner (EBT) and the western 

C. bairdi Tanner (WBT). This rule 

exempts EBT and WBT IPQ crab that is 

custom processed at a facility through 

contractual arrangements with the 

facility owners from being applied 

against the IPQ use cap of the facility 

owners. This rule applies to EBT and 

WBT IPQ crab received for custom 

processing during the 2015/2016 crab 

fishing year. Without this rule, 

substantial amounts of EBT and WBT 

Class A IFQ crab would remain 

unharvested, and fishermen, shoreside 

processors, and communities that 

participate in the EBT and WBT 

fisheries have no viable alternatives to 

mitigate the resulting significant, 

negative economic effects before the 

fisheries end for the season. This rule is 

necessary to temporarily relieve a 

restriction that is preventing the full 

harvest of EBT and WBT Class A IFQ 

crab. This rule is intended to promote 

the goals and objectives of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, the 

Fishery Management Plan for Bering 

Sea/Aleutian Islands King and Tanner 

Crabs, and other applicable law. 

DATES: Effective January 26, 2016 

through June 30, 2016. Comments must 

be received by February 25, 2016. 

ADDRESSES: You may submit comments, 

identified by NOAA–NMFS–2015–0168, 

by any of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/#!docketDetail;D=

NOAA-NMFS-2015-0168 click the 

‘‘Comment Now!’’ icon, complete the 

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Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Rules and Regulations 4207 

required fields, and enter or attach your 

comments. 

• Mail: Submit written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Ellen Sebastian. Mail comments to P.O. 

Box 21668, Juneau, AK 99802–1668. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

Electronic copies of the Regulatory 

Impact Review (RIR) and the Categorical 

Exclusion prepared for this rule may be 

obtained from http://

www.regulations.gov or from the Alaska 

Region Web site at http://alaska

fisheries.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-firstrefusal (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 

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4208 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Rules and Regulations 

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, 

§ 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 § 680.2. 

Additional terms used in the definition 

of ‘‘affiliation’’ are described in § 680.2, 

and NMFS refers the reader to that 

section for additional detail. 

Under § 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 

§ 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° 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, § 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, § 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 

§ 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 

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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 § 680.42(b)(7)(ii) and adds a 

temporary § 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 MagnusonStevens Act provides authority for 

rulemaking to address an emergency. 

Under that section, a regional fishery 

management council may recommend 

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4210 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Rules and Regulations 

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 

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Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Rules and Regulations 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 

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4212 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Rules and Regulations 

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 

■ 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 § 680.42: 

■ a. Suspend paragraph (b)(7)(ii) 

effective January 26, 2016 through June 

30, 2016; and 

■ b. Add paragraph (b)(7)(iii) effective 

January 26, 2016 through June 30, 2016. 

The addition reads as follows: 

§ 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 § 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 § 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 

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