[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Proposed Rules]
[Pages 6279-6288]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02007]



[[Page 6279]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 680

[Docket No. 110207108-2709-01]
RIN 0648-BA82


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

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 41 to the 
Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner 
Crabs (FMP). If approved, these regulations will amend the Bering Sea/
Aleutian Islands Crab Rationalization Program (CR Program) by 
establishing a process whereby holders of regionally designated 
individual fishing quota (IFQ) and individual processor quota (IPQ) in 
six CR Program fisheries may receive an exemption from regional 
delivery requirements in the North or South Region. The six CR Program 
fisheries are Bristol Bay red king crab, Bering Sea snow crab, Saint 
Matthew Island blue king crab, Eastern Aleutian Islands golden king 
crab, Western Aleutian Islands red king crab, and Pribilof Islands red 
and blue king crab. Current regulations require that a portion of crab 
harvested in these fisheries be delivered and processed within the 
boundaries of the North or South Region. This action is necessary to 
mitigate disruptions in a CR Program fishery that prevent participants 
from complying with regional delivery requirements. This proposed 
action is intended to promote the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act, the FMP, and other 
applicable law.

DATES: Written comments must be received no later than 5:00 p.m. Alaska 
local time (A.l.t.) March 1, 2013.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2011-0032, 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2011-
0032 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
that line.
     Fax: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.
     Mail: Address 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.
     Hand delivery to the Federal Building: Address written 
comments to Glenn Merrill, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen 
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau, 
AK.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. 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. All comments received are a part of the public 
record and will generally be posted for public viewing on http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address) voluntarily submitted by the 
commenter will be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information. 
NMFS will accept anonymous comments (enter N/A in the required fields, 
if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Electronic copies of Amendment 41 to the FMP, the Regulatory Impact 
Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), and the 
Categorical Exclusion prepared for this action may be obtained from 
http://www.regulations.gov or from the Alaska Region Web site at http://alaskafisheries.noaa.gov. The Environmental Impact Statement (EIS), 
RIR, and Social Impact Assessment prepared for the CR Program are 
available from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS at the above address; emailed to OIRA_Submission@omb.eop.gov or faxed to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION: The king and Tanner crab fisheries in the 
exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) 
are managed under the FMP. The North Pacific Fishery Management Council 
(Council) prepared the FMP under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).
    NMFS published the final rule to implement the CR Program, 
Amendments 18 and 19 to the FMP, on March 2, 2005 (70 FR 10174). 
Regulations implementing the FMP and all amendments to the CR Program 
are at 50 CFR part 680.
    The CR Program is a catch share program for nine BSAI crab 
fisheries that allocates those resources among harvesters, processors, 
and coastal communities. Under the CR Program, NMFS issued quota share 
(QS) to eligible harvesters based on their participation during a set 
of qualifying years in one or more of the nine CR Program fisheries. QS 
is an exclusive, revocable privilege allowing the holder to harvest a 
specific percentage of the annual total allowable catch (TAC) in a CR 
Program fishery.
    A QS holder's annual allocation, called IFQ, is expressed in pounds 
and is based on the amount of QS held in relation to the total QS pool 
for that fishery. NMFS issues IFQ in three classes: Class A IFQ, Class 
B IFQ, and Class C IFQ. Three percent of IFQ is issued as Class C IFQ 
for captains and crew. Of the remaining IFQ, 90 percent is Class A IFQ 
and 10 percent is Class B IFQ.
    NMFS issued processor quota share (PQS) to qualified individuals 
and entities based on processing activities in CR Program fisheries 
during a period of qualifying years. PQS is an exclusive, revocable 
privilege to receive deliveries of a fixed percentage of the annual TAC 
from a CR Program fishery. A PQS holder's annual allocation is 
individual processing quota (IPQ). NMFS issues IPQ at a one-to-one 
correlation between the amount of IPQ and Class A IFQ issued for each 
CR Program fishery. Class A IFQ must be delivered to a processor 
holding a matching amount of IPQ; Class C IFQ and Class B IFQ may be 
delivered to any registered crab receiver.

Regional Delivery Requirements

    The CR Program established regional delivery requirements to 
preserve the

[[Page 6280]]

historic geographic distribution of deliveries in the crab fisheries. 
NMFS assigned a regional designation to QS and PQS for seven of the 
nine CR Program fisheries. Regional designations of QS and PQS are 
described, respectively, in Sec.  680.40(b)(2) and (d)(2).
    Amendment 41 and this proposed rule would apply to QS and PQS that 
have a regional designation for the North Region or South Region. NMFS 
assigned a North Region designation or a South Region designation to 
the QS and PQS in six CR Program fisheries: Bristol Bay red king crab, 
Bering Sea snow crab, Eastern Aleutian Islands golden king crab, 
Western Aleutian Islands red king crab, Saint Matthew Island blue king 
crab, and Pribilof Islands red and blue king crab. The North Region is 
north of 54[deg]20'' N. latitude. The South Region is south of 
54[deg]20'' N. latitude.
    NMFS also assigned a West Region designation to a portion of the 
Western Aleutian Islands golden king crab QS and PQS; the remaining QS 
and PQS in that fishery is undesignated and may be delivered without 
regional limitation. Eastern Bering Sea Tanner crab QS and PQS, and 
Western Bering Sea Tanner crab fishery QS and PQS do not have a 
regional designation. Amendment 41 and this proposed rule would not 
apply to QS and PQS issued for these fisheries.
    Class A IFQ has the same regional designation as the underlying QS. 
Class B IFQ and Class C IFQ do not have regional designations: the crab 
harvested under Class B IFQ or Class C IFQ can be delivered to any 
registered crab receiver. For Class A IFQ with a regional designation, 
CR Program regulations at Sec.  680.7(a)(2) prohibit a processor from 
receiving crab in any region other than the region designated on the 
IFQ permit.
    IPQ has the same regional designation as the underlying PQS. CR 
Program regulations at Sec.  680.7(a)(4) prohibit the use of IPQ to 
process crab in any region other than the region designated on the IPQ 
permit.
    Environmental or man-made conditions have created obstacles to 
regional deliveries in every year since implementation of the CR 
Program. Each year, icing conditions have been an obstacle to 
delivering crab harvested with North Region IFQ in the North Region. 
For an entire season, deliveries to a floating processor that served 
most of the North Region were prevented by a fire that disabled the 
processor. Whether a delivery is prevented depends on the 
circumstances, such as the spatial distribution and type of ice, the 
specific vessel, the location of the vessel relative to the processing 
facility, the amount and condition of crab on board, and any factors 
affecting the willingness of the captain to wait for conditions to 
change.
    Despite these circumstances, participants have met regional 
delivery requirements in all CR Program fisheries except Western 
Aleutian Islands golden king crab. Amendment 37, described below, 
addressed the problems in that fishery. In the North Region, IFQ 
holders have complied with regional delivery requirements by using 
their harvesting cooperatives to adjust the timing of crab harvests and 
using other available IFQ in lieu of North Region IFQ. Such ad hoc 
responses to severe weather conditions or other circumstances that 
restrict landings have enabled the participants in the North Region to 
meet regional delivery requirements; however, these measures have not 
provided long-term solutions that sufficiently address timeliness, 
safety, economic efficiency, and other factors.
    Western Aleutian Islands golden king crab fishery had suffered from 
a chronic lack of processing capacity in the West Region. Amendment 37 
to the FMP addressed the difficulties of IFQ and IPQ holders meeting 
the regional delivery requirement in this fishery. Under regulations 
implementing Amendment 37, eligible participants in the Western 
Aleutian Islands golden king crab fishery may enter into a contractual 
agreement and request that NMFS exempt them from regional delivery 
requirements for West Region Class A IFQ and corresponding IPQ. Upon 
approval of a completed application, NMFS will exempt holders of West 
Region Class A IFQ and corresponding IPQ from regional delivery 
requirements, thereby allowing eligible participants to deliver and 
receive crab at facilities outside of the West Region. Additional 
information on Amendment 37 is contained in the final rule (76 FR 
35781, June 20, 2011).
    Because the conditions that have impeded deliveries within the West 
Region (e.g., limited, or no, available processing capacity) differ 
from the conditions impeding deliveries in the North Region (e.g., 
icing conditions), the Council chose to develop Amendment 41 to respond 
to the specific delivery conditions in CR fisheries subject to North 
and South regional designations.

IPQ Use Caps

    The CR Program has PQS and IPQ use caps. When the Council 
recommended the CR Program, it was concerned that excessive 
consolidation of PQS could reduce competition and reduce processing in 
communities where processing had historically occurred. Therefore, the 
Council created limits on the total 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 single facility. For a complete discussion 
of the PQS and IPQ use caps, please see the proposed rule for the CR 
Program (69 FR 63200; October 29, 2004). As discussed below, this 
proposed rule modifies the CR Program use caps so that NMFS would not 
count crab delivered pursuant to an exemption toward those caps. This 
change is necessary to allow IPQ holders and facilities to accept crab 
for delivery and processing once the crab is subject to an exemption 
from the regional delivery requirements.

Amendment 41

    The Council adopted Amendment 41 to the FMP at its December 2010 
meeting. Amendment 41 would promote the safety of human life at sea and 
mitigate economic harm by allowing participants to receive an exemption 
from regional delivery requirements in situations where events prevent 
participants from delivering crab harvested with North Region IFQ in 
the North Region or South Region IFQ in the South Region.
    In recommending Amendment 41, the Council recognized that weather 
conditions or other natural or man-made circumstances can hinder 
harvesting activities and restrict access to processing facilities in 
the North or South Region. Natural or man-made catastrophes could 
result in lost revenue to harvesters, processors, and communities. 
Safety risks increase when harvesters attempt to meet regional delivery 
requirements in inclement weather (e.g., icing conditions) and other 
potentially unsafe situations. Unforeseen delays in delivering crab 
could result in deadloss (crab that die before being processed). 
Harvesters may avoid or delay the harvest of regionally designated IFQ, 
thereby increasing the potential for unharvested crab or crab harvested 
later in the fishing season than would have been otherwise required for 
a given TAC level. Such changes in fishing behavior could result in 
unused IPQ, increased processing cost, loss of market share, and loss 
of revenue to remote communities dependent on revenues from crab 
deliveries and processing.
    The Council recognized that the purpose of prohibiting holders of 
regionally designated Class A IFQ and IPQ from delivering and 
processing crab outside the designated region is to ensure that each 
region retains the

[[Page 6281]]

economic benefits from deliveries within the region. Therefore, under 
Amendment 41, the Council recommended an exemption process in which 
deliveries of regionally designated Class A IFQ outside the region 
would need to be negotiated among IFQ holders, IPQ holders, and 
representatives of affected communities. The Council also recognized 
that any exemption must include requirements for IFQ holders and IPQ 
holders to make efforts to avoid the need for an exemption and, if an 
exemption is needed, to limit the amount of IFQ and IPQ that would be 
subject to an exemption. The Council recommended a process that 
supports the existing regional delivery requirements while establishing 
a process to mitigate disruptions in a CR Program fishery that restrict 
the ability of participants to comply with the delivery requirements.
    The Council also recognized the potential for insurmountable 
administrative difficulties if NMFS specified the conditions for 
granting an exemption and then determined whether those conditions 
existed in a particular situation. Therefore, the Council recommended a 
system of civil contracts among harvesters, processors, and community 
representatives as the means of establishing the exemption from the 
regional delivery requirements.
    Under Amendment 41, the parties--Class A IFQ holders, IPQ holders, 
and affected communities--would develop private contractual 
arrangements that specify when, and under what terms, they could 
request and receive an exemption from regional delivery requirements in 
the North or South Region. The contract terms would not be established 
in the FMP or in regulation. The parties would enter into two private 
contractual arrangements--a preseason framework agreement and an 
inseason exemption contract--before the specified IFQ and IPQ would be 
exempt from the regional delivery requirements. These contracts would 
govern the roles and responsibilities of the parties to the contract 
and would establish each party's specific obligations. The goal is 
that, through the framework agreement process, before the crab season, 
the parties would plan for adverse conditions and would agree to take 
actions to reduce the need for an exemption. Then, in the event that 
these actions were unsuccessful in averting the need for an exemption, 
the parties would execute an exemption contract. The parties would 
notify NMFS and certify that they had executed an exemption contract as 
required by the regulation. The exemption would go into effect the day 
after NMFS receives the inseason notice. If any party to a framework 
agreement or exemption contract believes that any other party did not 
comply with their contractual obligation, that party could seek redress 
as a private civil matter.
    Overall, the exemption process in the proposed rule seeks to allow 
fishery participants to respond to an emergency situation during the 
crab fishing season in accord with ground rules that they themselves 
established before the season.
    Amendment 41 and this proposed rule do not prescribe specific 
conditions or terms of agreement for the framework agreement or 
exemption contract. But the Council's Statement of Council Intent 
should guide the parties in establishing the required contracts. 
Additionally, section 2.4.2 of the RIR for this action provides 
background about the range of private arrangements that the Council 
considered and that the parties could put in the framework agreement 
and the exemption contract.
    The following Statement of Council Intent was included in the 
Council's December 2010 motion:

    The Council intends that exemptions will be developed by 
agreement of the holders of Class A IFQ, holders of IPQ, and 
regional/community representatives. For emergency events of less 
than 2 million pounds in the aggregate, compensatory deliveries 
offer the opportunity to restore the landings to a region that are 
intended in current regulations; therefore no party should 
unreasonably withhold their agreement or unreasonably restrict the 
industry's ability to respond to those events. A prerequisite to an 
exemption will be that the parties have entered a nonbinding 
framework agreement. It is the Council's intent that this framework 
agreement will define certain terms of the exemption, including 
mitigation requirements and a range of terms of compensation, and 
that the exemption contract describes the conditions under which the 
exemption is being or would be requested, including mitigation 
requirements and terms of compensation specific to the exemption 
being sought. Mitigation would be intended to mitigate the effects 
on parties that might suffer some loss because of the granting of an 
exemption. Compensation would be intended to compensate parties for 
losses arising from the exemption. All framework agreements are 
expected to contain provisions for a reserve pool. A reserve pool 
would be intended to provide industry wide, civil contract based 
delivery relief without regulatory or administrative intervention. 
Specifically, a reserve pool would be an agreement among holders of 
IFQ to certain arrangements in the use of their IFQ to reduce the 
need for exemptions from the regional landing requirement. It is 
believed that an effective reserve pool must (1) commit each 
participant in the pool to be bound by its rules; and (2) include 
not less than 70% of the Class A IFQ held by:
    (a) unaffiliated cooperatives and unaffiliated IFQ holders not 
in a cooperative, in the aggregate; or
    (b) affiliated cooperatives and affiliated IFQ holders not in a 
cooperative, in the aggregate.
    Allowing several IFQ holders, IPQ holders, and community/
regional entities to be a party to the same framework agreement is 
intended to streamline negotiations, facilitate the use of reserve 
pools, and allow for the incorporation of compensatory deliveries 
(should the parties believe compensating deliveries are 
appropriate). If an exemption is needed for compensatory deliveries, 
the process for receiving that exemption shall be the same as the 
process of affidavits used to make any other exempt deliveries under 
this action.

    The framework agreement would define the steps that the parties 
would take prior to the crab fishing season to reduce the need for, and 
amount of, an exemption during the crab fishing year. A framework 
agreement could include an agreement among IFQ holders, whereby they 
aggregate a certain percentage of their IFQ to address inseason factors 
that could otherwise prevent compliance with regional delivery 
requirements. For example, the framework agreement could prioritize the 
harvest of North Region Class A IFQ while setting aside a portion of 
South Region Class A IFQ until the North Region Class A IFQ has been 
harvested and delivered to matching North Region IPQ. The framework 
agreement would also address the circumstances that would trigger an 
exemption. If those circumstances occurred, the framework agreement 
would describe the steps that the parties would take to mitigate the 
adverse effects of the exemption. The framework agreement might include 
steps to compensate the community that was losing the processing, the 
economic activity from the processing, and the tax revenues from the 
processing.
    However, the Council did not recommend, and this proposed rule does 
not include, any terms that the parties must include in their framework 
agreement or exemption contract. The parties to the agreements would 
determine those terms.

The Proposed Rule

    This proposed rule would establish a process by which IFQ holders, 
IPQ holders, and affected communities could jointly apply for and 
receive an exemption from regional delivery requirements. This proposed 
rule would apply to the following crab fisheries: Bristol Bay red king 
crab, Bering Sea snow crab, Eastern Aleutian Islands golden king crab, 
Western Aleutian Islands red king crab, Saint Matthew

[[Page 6282]]

Island blue king crab, and Pribilof Islands red and blue king crab.
    This proposed rule would implement a two-step process for an 
exemption from regional delivery requirements: A preseason application 
and an inseason notice of exemption. Both parts of the application 
would be on one form: the Application for Exemption from CR Crab 
Regional Delivery Requirements. This application process would allow 
the parties to apply for an exemption from the regional delivery 
requirements without extensive administrative review by NMFS. Under 
this proposed rule, both the preseason application and the inseason 
notice must be signed by one or more members of the following three 
groups: (1) Holders of Class A IFQ in a CR Program fishery subject to 
this proposed rule; (2) holders of the IPQ in a CR Program fishery 
subject to this proposed rule; and (3) a representative of the affected 
community.

Preseason Application Process

    The preseason application process itself has two parts: (1) The 
development of a framework agreement by the parties; and (2) the 
submission of a preseason application to NMFS. During the first part of 
the preseason process, Class A IFQ holders, IPQ holders, and 
representatives from affected communities could choose to work together 
to establish a framework agreement for that crab fishing year. The 
framework agreement is intended to provide participants in the crab 
fishery with the flexibility to prepare for, and agree upon, certain 
aspects of an exemption prior to the start of the crab fishing season. 
This proposed rule would not require fishery participants to enter a 
framework agreement; however, a framework agreement would be required 
for fishery participants to obtain an exemption from the regional 
delivery requirements in that crab fishing year.
    Developing the provisions of a framework agreement preseason should 
prevent the parties from seeking an exemption for simple convenience as 
well as provide several benefits to the parties. First, agreement of 
all parties to a framework agreement should streamline the process for 
seeking an exemption from the regional delivery requirements inseason. 
A framework agreement would provide a means for IFQ holders and IPQ 
holders to quickly obtain an inseason exemption from the regional 
delivery requirement. Second, the framework agreement could prevent a 
party or parties from imposing unreasonable terms in the event that an 
exemption is needed. For example, absent a preseason agreement, an IFQ 
holder who is hampered from making a landing due to unsafe icing 
conditions could potentially be at a disadvantage when negotiating 
terms of the exemption.
    Once the parties establish a framework agreement, the parties would 
submit the preseason application. A completed preseason application 
must be received by NMFS by October 15 of the crab fishing year for 
which the applicants may need an exemption. October 15 is the opening 
date of the fishing season established by the Alaska Department of Fish 
and Game for five of the six CR Program fisheries subject to this 
proposed rule. NMFS notes that the October 15 application deadline is 
after the August 15 opening of the Eastern Aleutian Islands golden king 
crab fishery season. However, participants in any of the crab fisheries 
subject to this rule could submit their application before October 15. 
Specifically, the participants in the Eastern Aleutian Islands golden 
king crab fishery could submit their preseason application before 
August 15.
    The applicants would be responsible for ensuring that NMFS receives 
a complete application package. A complete preseason application would 
identify the CR program fishery for which the applicants are seeking an 
exemption. A complete preseason application must be signed by the 
holders of the IFQ and IPQ that are the subject of the preseason 
application and by the community representative.
    A preseason application also includes an affidavit that the parties 
submitting the preseason application have signed a framework agreement 
that: (1) Specifies the CR crab fisheries that are the subject of the 
framework agreement; (2) specifies the actions that the parties will 
take to reduce the need for, and the amount of, an exemption; (3) 
specifies the circumstances under which the parties would execute an 
exemption contract and receive an exemption; (4) specifies the actions 
that the parties would take to mitigate the effects of an exemption; 
(5) specifies the compensation, if any, that any party would provide to 
any other party; and (6) affirms that the required parties have signed 
the framework agreement. The parties may include any other mutually 
agreeable terms in the framework agreement.
    NMFS would review each preseason application. If a preseason 
application was timely and complete, NMFS would approve the 
application. If a preseason application was not received by October 15, 
NMFS would deny the application. If NMFS denied a preseason application 
for any reason, those applicants would not be eligible for an exemption 
from regional delivery requirements during the crab fishing year. 
However, the applicants would have the right to appeal the denial.
    If NMFS approves a preseason application, the applicants who 
submitted the preseason application could make a delivery out-of-region 
during the crab fishing year if, before the delivery, the applicants 
took two actions that are specified in the regulation: (1) The 
applicants executed an exemption contract; and (2) the applicants 
submitted an inseason notice to NMFS that they are exercising the 
exemption.
    The preseason application process in the proposed rule is 
consistent with the Council's intent that NMFS only determine whether 
the applicants have certified to NMFS that they have signed a framework 
agreement that contains the required elements. The preseason 
application process would allow the parties themselves to establish the 
terms of the framework agreement. The preseason application process 
would allow the affected parties to enter the fishing season knowing 
the steps that the parties would take to avoid an exemption, the 
circumstances that would trigger an exemption, the steps they would 
need to take to obtain an exemption, and any mutually-agreed upon 
compensatory actions that the parties would take as a result of 
exercising the exemption.

Inseason Process

    If parties to an approved preseason application conclude during the 
crab fishing year that circumstances have occurred that justify an 
inseason exemption under the framework agreement, those applicants must 
do two things to obtain an exemption. They must enter into an exemption 
contract with each other and they must jointly submit an inseason 
notice of the exemption to NMFS.
    First, the exemption contract: the proposed rule specifies that the 
parties to an exemption contract must be, at a minimum, one IFQ holder, 
one IPQ holder, and the representative of the affected community. The 
parties to an exemption contract may be multiple IFQ holders, IPQ 
holders, and one or more community representatives. The proposed rule 
also specifies subjects that must be addressed in the exemption 
contract: (1) The IFQ amount and IPQ amount, by crab fishery, that is 
subject to the exemption contract; (2) the circumstances under which 
the parties are exercising the exemption; (3) the actions that the 
parties must take to mitigate the effects of the exemption; (4)

[[Page 6283]]

the compensation, if any, that any party must make to any other party; 
(5) whether all required parties have signed the exemption contract. 
The parties may include any other mutually agreeable terms in the 
exemption contract.
    Second, an inseason notice to NMFS: after the parties execute an 
exemption contract, the parties would jointly submit an inseason notice 
to NMFS. The parties would certify to NMFS that the required parties 
are submitting the inseason notice, namely the holders of the IFQ and 
IPQ that is the subject of the inseason notice and the community 
representative eligible to submit an inseason notice of exemption for 
this IFQ and IPQ. The parties would also certify to NMFS that they have 
signed an exemption contract that addresses the mandatory subjects in 
the contract. Each applicant would affirm that all information and 
claims in the inseason notice are true, correct and complete.
    If the parties submit a complete inseason notice to NMFS, the 
exemption would automatically go into effect the day after submission. 
The exemption would be in effect only for the IFQ and IPQ specified on 
the inseason notice. NMFS would post the effective date of the 
exemption on the NMFS Alaska Region Web site.
    Once an exemption is effective, crab harvested with the IFQ 
specified on the notice could be delivered outside the designated 
region (North or South) during the rest of the crab fishing year. Once 
an exemption is effective, crab processed with the IPQ specified on the 
notice could be processed outside the designated region during the rest 
of the crab fishing year. Deliveries of crab out-of-region that are not 
allowed by an exemption would continue to be fishery violations. The 
regulation has no limit on the number of times in a crab fishing year 
that applicants with an approved preseason application could submit an 
inseason notice of an exemption.
    The exemption process under Amendment 41 for the North and South 
Region differs from the exemption process under Amendment 37 for the 
West Region in four ways. First, under Amendment 37, any person that 
holds more than 20 percent of the West Region QS or West Region PQS in 
the Western Aleutian Islands golden king crab fishery must be a party 
to any request for an exemption from the regional delivery 
requirements. Persons holding 20 percent or less of either share type 
have no direct input into the contract negotiations or application. 
Under Amendment 41, each IFQ holder and each IPQ applies for an 
exemption. It does not matter how much IFO and IPQ an applicant holds.
    Second, an exemption granted under Amendment 37 applies to all West 
Region IFQ and West Region IPQ in the Western Aleutian Islands golden 
king crab fishery. Under Amendment 41, an exemption only applies to the 
IFQ and IPQ that is the subject of a preseason application and an 
inseason notice.
    Third, under Amendment 37, only the IFQ holders and IPQ holders 
apply for an exemption. Under Amendment 41, the affected community 
would also apply for an exemption.
    Finally, Amendment 37 has only a preseason application and, 
although the applicants must have entered into a master contract, the 
regulation does not specify subjects that must be addressed in the 
contract. Under Amendment 41, the parties enter into both a preseason 
framework contract and an inseason exemption contract and the 
regulation specifies subjects that must be addressed in both contracts.

Community Representatives

    This proposed rule gives affected communities a role in the 
exemption process. The proposed rule would require that a 
representative of the affected community sign the framework agreement, 
the preseason application, the exemption contract, and the inseason 
notice. An affected community is the community that holds the Right of 
First Refusal (ROFR) on designated PQS. In communities holding or 
formerly holding the Right of First Refusal (ROFR) on designated PQS, 
the community representative would be the established non-profit 
eligible crab community (ECC) entity, defined at Sec.  680.2. All these 
communities have designated EEC entities that NMFS has approved. For 
the communities of Saint Paul, Saint George, False Pass, and Akutan, 
the EEC entity is the local Community Development Quota (CDQ) group. 
For Unalaska, Port Moller, King Cove, and Kodiak, the ECC entity is 
designated by the municipal government.
    NMFS also issued a portion of the PQS for the Bering Sea snow crab 
fishery and the Saint Matthew Island blue king crab fishery without a 
ROFR designation (non-ROFR PQS). Saint Paul and Saint George are the 
only two communities in the North Region that have historically 
received and processed Bering Sea snow crab and Saint Matthew Island 
blue king crab. Therefore, they would be the affected communities for 
the purposes of an exemption from the regional delivery requirements. 
The Council recommended that the CDQ entities representing Saint Paul 
(Central Bering Sea Fishermen's Association or CBSFA) and Saint George 
(Aleutian Pribilof Island Community Development Association or APICDA) 
select a single community representative to sign on their behalf, the 
framework agreement, the preseason application, the exemption contract, 
and the inseason notice for this non-ROFR PQS. The Council recommended 
one community representative for non-ROFR PQS to reduce the potential 
for additional administrative burden that may arise if representatives 
of both APICDA and CBSFA were required to sign these documents.
    Under this proposed rule, APICDA and CBSFA would have 180 days from 
the effective date of the final rule to inform NMFS in writing that 
they have designated a single community representative responsible for 
signing the framework agreement, the preseason application, the 
exemption contract, and the inseason notice. After publication of the 
final rule, NMFS would notify APICDA and CBSFA of the deadline to 
designate a single community representative and provide instructions 
for informing NMFS of the community representative. The 180-day window 
should provide adequate time for the two CDQ entities to coordinate 
their recommendation but not create an undue delay.
    The Council did not specify what would happen if APICDA and CBSFA 
do not designate a single community representative or if they want to 
revoke a designation in the future. NMFS therefore proposes that if 
APICDA and CBSFA do not designate a community representative to NMFS by 
the deadline, then both APICDA and CBSFA would need to sign the 
documents for the applicable North Region non-ROFR PQS. This provision 
ensures that both CDQ entities would participate in reaching these 
agreements if they did not designate a single community representative.
    Additionally, NMFS proposes that APICDA or CBSFA may revoke its 
designation of a community representative by providing written notice 
to the other entity and to NMFS. If either APICDA or CBSFA revokes its 
designation of a community representative, then both APICDA and CBSFA 
would need to sign all documents related to the exemption: the 
framework agreement, the preseason application, the exemption contract, 
and the inseason notice. However, if APICDA or CBSFA revoke its 
designation after October 15, the revocation will not affect the 
validity of any action taken by the designated community representative 
pursuant to Sec.  680.4(p) for that crab fishing year.

[[Page 6284]]

IPQ Use Caps

    This proposed rule would not change existing IPQ use caps; however, 
it would add exemptions from IPQ use caps when NMFS approves an 
exemption from the regional delivery requirements. The CR Program at 
Sec.  680.42(b) limits the amount of IPQ that a single person may hold. 
Under the proposed rule at Sec.  680.42(b)(7), NMFS would not count 
crab processed outside the designated region pursuant to an exemption 
against this limit.
    The CR Program at Sec.  680.42(b) also limits how much IPQ an 
individual facility may use or process. Under the proposed rule at 
Sec.  680.42(b)(8), NMFS would not count crab processed outside the 
designated region under an exemption toward the IPQ use cap of the 
processing facility. It is likely that a facility would likely process 
crab from outside the designated region through a custom processing 
arrangement. The receiving processor would likely have little notice to 
prepare for the delivery. An exemption from the IPQ use caps would help 
to ensure that a facility would not refuse delivery of the crab to 
avoid exceeding the facility's IPQ use cap.
    NMFS notes that IPQ holders would continue to be subject to the IPQ 
use caps for all processing that does not occur through an exemption 
from the regional delivery requirements.

Regional Delivery Exemption Report

    This proposed rule includes a reporting requirement to provide NMFS 
and the Council with the means to assess the exemption in terms of the 
Council's Statement of Council Intent for Amendment 41. In a crab 
fishing year when an IFQ holder submits a preseason application for an 
exemption from the regional delivery requirements, the IFQ holder must 
also submit an annual Regional Delivery Exemption Report to NMFS by 
June 30 of that crab fishing year. The Council did not recommend a 
deadline for submitting the Regional Delivery Exemption Report. To 
reduce the burden on fishery participants, NMFS is proposing the June 
30 deadline to correspond with the end of the crab fishing year and 
with the deadline for the Eligible Crab Community Organization Annual 
Report in Sec.  680.5(f).
    The proposed rule requires that before IFQ holders submit the 
Regional Delivery Exemption Report to NMFS, they submit a copy of the 
report to the community representatives and IPQ holders that also 
signed the preseason application. NMFS proposes a deadline of June 15 
for IFQ holders to take this action. In response to the IFQ holder's 
report, community representatives and IPQ holders may choose to submit, 
respectively, a Community Impact Report or IPQ Holder Report. These 
reports would offer community representatives and IPQ holders an 
opportunity to provide the Council and NMFS with their perspectives on 
the framework agreement and exemption contract and to provide an 
additional viewpoint to the Regional Delivery Exemption Report.
    Under the proposed rule, the annual Regional Delivery Exemption 
Report must include the following: (1) The amount of IFQ, if any, set 
aside to reduce the need for, and to limit the extent, or amount of, 
the exemption; (2) the mitigation measures employed before submitting 
an inseason notice; (3) the number of times an exemption was requested 
and used; (4) whether the exemption was necessary; and (5) any impacts 
resulting from the exemption on the fishery participants and 
communities that signed the preseason application. NMFS is not 
proposing similar reporting requirements for the Community Impact 
Report or IPQ Holder Report because these reports are voluntary. The 
Regional Delivery Exemption Report, Community Impact Report, and the 
IPQ Holder Report will provide documentation and transparency needed by 
the Council and NMFS to evaluate the efficacy of privately administered 
contracts described in this action.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration of comments 
received during the public comment period.
    This proposed rule has been determined to not be significant for 
the purposes of Executive Order 12866.

Regulatory Impact Review (RIR)

    An RIR was prepared to assess all costs and benefits of available 
regulatory alternatives. The RIR considers all quantitative and 
qualitative measures. A copy of this analysis is available from NMFS 
(see ADDRESSES). The Council recommended Amendment 41 based on those 
measures that maximized net benefits to the Nation. Specific aspects of 
the economic analysis are discussed below in the initial regulatory 
flexibility analysis (IRFA) section.

Initial Regulatory Flexibility Analysis (IRFA)

    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
proposed action, why it is being considered, and the legal basis for 
this proposed action are contained in the SUPPLEMENTARY INFORMATION 
section of the preamble and are not repeated here. A summary of the 
IRFA follows. Copies of the IRFA are available from NMFS (see 
ADDRESSES).
    The RIR/IRFA prepared for this proposed rule incorporates by 
reference an extensive RIR/IRFA prepared for Amendments 18 and 19 to 
the FMP that detailed the impacts of the CR Program on small entities.

Number and Description of Small Entities Regulated by the Proposed 
Action

    The proposed rule would create a process whereby IFQ holders and 
IPQ holders who enter an agreement with an ECC entity or community 
representative may apply for and receive an exemption from regional 
delivery requirements. Estimates of the number of small entities 
holding IFQ are based on estimates of gross revenues. During the 2009-
2010 fishing season, nine entities held IFQ subject to regional 
delivery requirements; three of these IFQ holders were small entities. 
In that same season, 14 of the 22 entities that held IPQ subject to 
regional delivery requirements were small entities. Six small community 
entities, including two CDQ entities, would be directly regulated by 
this action.

Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities

    The Council considered two alternatives; status quo and the 
proposed action. The status quo is no exemption from the regional 
delivery requirements. The proposed action is an exemption from the 
regional delivery requirements. For the proposed action alternative, 
the Council considered a number of options to improve the functioning 
of the exemption and minimize adverse impacts on small entities. The 
Council also considered and eliminated from further considerations 
several alternatives that the Council determined would have limited the 
effectiveness of the exemption in achieving its intended purpose.
    The analysis shows that the proposed action minimizes the adverse 
impacts

[[Page 6285]]

on small entities from the status quo. All of the directly regulated 
entities are expected to benefit from this action relative to the 
status quo alternative because the proposed rule would allow crab to be 
landed and processed outside the designated region if a circumstance 
occurs that the directly regulated entities agreed in advance prevents 
compliance with regional delivery requirements. Allowing for the 
exemption would potentially reduce deadloss, promote full utilization 
of the TAC, and improve safety at sea. It is unlikely that any party to 
the exemption would benefit more than any other because all applicants 
would have agreed, before the season, to the terms of mitigation and 
compensation.
    The Council considered a number of options to improve the 
functioning of the exemption and minimize adverse impacts on small 
entities. The Council considered options that would allow communities 
benefiting from a ROFR to select a regional representative to act on 
their behalf rather than the ECC entity. The Council did not choose 
that option because of the potential difficulties that communities 
could encounter in selecting the regional representative and because of 
the additional administrative costs and burdens associated with this 
option. In addition to providing an expedited administrative process, 
the approach selected by the Council maintains the original intent of 
CR Program community protection measures in that it preserves community 
interests by providing not only a regional linkage for certain PQS, but 
also a close linkage between certain PQS and the community of origin 
for that PQS.
    The Council also considered and eliminated from further 
consideration several alternatives during the development of Amendment 
41. These alternatives are described in detail in Section 2.2.1 of the 
analysis for this action (see ADDRESSES). Generally, the Council 
perceived these alternatives as limiting the effectiveness of the 
exemption in achieving its intended purpose.
    The Council considered and rejected alternatives in which NMFS 
would fully administer regional exemptions by determining whether 
specific conditions existed to qualify for an exemption from the 
regional delivery requirement. The Council did not advance these 
alternatives because the Council viewed them as overly expensive to 
administer and likely to prevent the exemption process from fulfilling 
its purpose as described in the Council's purpose and need statement 
for this action. The Council and NMFS recognized that the necessary 
fact finding to make such a determination (e.g., that a specific amount 
of ice was prohibiting harvesting or delivery of crab in a specific 
location) would not only delay decision making, but could also be 
costly. Verification of conditions could be difficult or impracticable 
due to the remoteness of the location and poor quality of data 
available.
    A factual finding would require NMFS to not only complete an 
assessment of the event that arguably prevents a delivery, but also of 
the potential availability of other processing facilities in the region 
to overcome the barrier to the delivery. These findings would require 
factual assessments of circumstances in remote areas. Such findings 
typically require time, which may jeopardize safety in emergencies, and 
information, which may not be available to NMFS. In addition, the need 
for administrative review of these findings could result in additional 
delays. Consequently, the Council elected to pursue alternatives that 
would not rely on agency administrative discretion. Instead, the 
affected parties would define the terms under which they would apply 
for and receive an exemption. This approach also allows the parties 
flexibility to develop mitigation and compensation requirements that 
would, in turn, minimize the need for the exemption and, if an 
exemption is necessary, ensure that the parties potentially harmed by 
the exemption receive reasonable compensation.
    The Council also considered an alternative that would have defined 
specific exemption criteria in regulation; however, the Council 
eliminated this alternative because NMFS and the Council recognized 
that this approach might be overly restrictive and could not be adapted 
as circumstances might require. The Council also elected not to 
recommend an alternative that specifically defined compensation because 
the Council deemed this alternative too prescriptive to effectively 
balance the competing interests of parties, which are likely to change 
with the circumstances surrounding the granting of an exemption. 
Similarly, the Council chose not to advance alternatives that would 
redesignate IFQ and IPQ to compensate for landings redirected under the 
exemption because they would be administratively complex given the 
inability to rollover IFQ from one year to the next.

Duplicate, Overlapping, or Conflicting Federal Rules

    NMFS has not identified any duplication, overlap, or conflict 
between this proposed action and existing Federal rules.

Recordkeeping and Reporting Requirements

    The reporting, recordkeeping, and other compliance requirements 
would be increased under the proposed rule if parties enter into the 
agreements and contracts required as part of a completed Application 
for Exemption from CR Crab Regional Delivery Requirements. This 
proposed rule adds recordkeeping and reporting requirements necessary 
to implement Amendment 41, namely submission, prior to the start of the 
fishing season, of an application and affidavit affirming that IFQ 
holders, IPQ holders, and community representatives have entered into a 
framework agreement. A second notice and affidavit affirming that those 
parties have entered into an exemption contract is required if the 
parties subject to the framework agreement wish to seek an exemption 
during the fishing season.
    Participation in an Application for Exemption CR Crab Regional 
Delivery Requirements is voluntary, but would be necessary to deliver 
crab outside of a designated region when circumstances necessitate an 
exemption from the regional delivery requirements.
    The professional skills necessary to comply with reporting and 
recordkeeping requirements for small entities impacted by this proposed 
rule include the ability to read, write, and understand English; the 
ability to use a personal computer and the Internet; and the authority 
to take actions on behalf of the designated signatory. Each of the 
small entities must be capable of complying with the requirements of 
this proposed rule. Each small entity should have financial resources 
to obtain additional legal or technical expertise that they might 
require to advise them concerning the framework agreement or the 
exemption contract.
    IFQ holders that sign a preseason application must also prepare and 
submit an annual Regional Delivery Exemption Report to the NMFS by June 
30. At least 2 weeks prior to submission of the Regional Delivery 
Exemption Report to NMFS, the IFQ holders must submit a copy of the 
report to the community representatives and IPQ holders that also 
signed the preseason application. In response to the Regional Delivery 
Exemption Report, community representatives may voluntarily submit

[[Page 6286]]

a Community Impact Report and IPQ holders may voluntarily submit an IPQ 
Holder Report.

Collection-of-Information Requirements

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval under OMB Control No. 0648-0514.
    Public reporting burden per response is estimated to average 20 
hours for the proposed Application for Exemption from CR Crab Regional 
Delivery Requirements; 5 hours for CDQ Notification of Representative; 
20 hours to prepare the Regional Delivery Exemption Report; and 2 hours 
to complete the Community Impact Report or IPQ Holder Report.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these, or any other aspects of the collection of information, to NMFS 
(see ADDRESSES) and by email to OIRA_Submission@omb.eop.gov or fax to 
202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: January 25, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 680 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.  680.4, add paragraph (p) to read as follows:


Sec.  680.4  Permits.

* * * * *
    (p) Exemption from regional delivery requirements for the Bristol 
Bay red king crab, Bering Sea snow crab, Saint Matthew Island blue king 
crab, Eastern Aleutian Islands golden king crab, Western Aleutian 
Islands red king crab, and Pribilof Islands red and blue king crab 
fisheries--
    (1) Apply for an exemption. Eligible applicants may submit an 
application to exempt North Region IFQ and IPQ or South Region IFQ and 
IPQ from the prohibitions at Sec. Sec.  680.7(a)(2) and (a)(4).
    (2) Identification of eligible applicants. Eligible applicants are:
    (i) IFQ holders. Any person holding regionally designated IFQ for 
Bristol Bay red king crab, Bering Sea snow crab, Saint Matthew Island 
blue king crab, Eastern Aleutian Islands golden king crab, Western 
Aleutian Islands red king crab, or Pribilof Islands red and blue king 
crab, or their authorized representative.
    (ii) IPQ holders. Any person holding regionally designated IPQ for 
Bristol Bay red king crab, Bering Sea snow crab, Saint Matthew Island 
blue king crab, Eastern Aleutian Islands golden king crab, Western 
Aleutian Islands red king crab, or Pribilof Islands red and blue king 
crab, or their authorized representative.
    (iii) Community representatives.
    (A) For communities that hold or formerly held the ROFR pursuant to 
Sec.  679.41(l) of this chapter, the community representative that 
signs the preseason application, the framework agreement, the inseason 
notice, and the exemption contract is the ECC entity, as defined at 
Sec.  680.2.
    (B) For North Region Saint Matthew blue king crab PQS and North 
Region Bering Sea snow crab PQS that was issued without a ROFR, the 
community representative that signs the preseason application, the 
framework agreement, the inseason notice, and the exemption contract 
for Saint Paul and Saint George shall be either:
    (1) Both Aleutian Pribilof Islands Community Development 
Association (APICDA) and the Central Bering Sea Fishermen's Association 
(CBSFA), or
    (2) The community representative that APICDA and CBSFA designate in 
writing to NMFS by [INSERT DATE 180 DAYS AFTER THE EFFECTIVE DATE OF 
THE FINAL RULE].
    (i) Either APICDA or CBSFA may revoke the designated community 
representative by providing written notice to the other entity and to 
NMFS.
    (ii) If either APICDA or CBSFA revokes its designation of a 
community representative after October 15 of a crab fishing year, the 
revocation will not affect the validity of any action taken by the 
designated community representative pursuant to this paragraph (p) for 
that crab fishing year, including signing the preseason application, 
the framework agreement, the inseason notice, and the exemption 
contract.
    (3) Required applicants. Multiple parties may apply for an 
exemption; however, a complete preseason application and a complete 
inseason notice must be submitted by a minimum of one Class A IFQ 
holder, one IPQ holder, and one community representative.
    (4) Application for an exemption from the CR Program regional 
delivery requirements--(i) Application form. The application form 
consists of two parts: A preseason application for exemption and an 
inseason notice of exemption. The application form is available on the 
NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov) or from 
NMFS at the address below. NMFS must receive both parts of the 
application form by one of the following methods:
    (A) Mail: NMFS Regional Administrator, c/o Restricted Access 
Management Program, P.O. Box 21668, Juneau, AK 99802-1668; or
    (B) Fax: 907-586-7354; or
    (C) Hand delivery or carrier: NMFS, Room 713, 709 West 9th Street, 
Juneau, AK 99801.
    (ii) Part I: Preseason application--
    (A) A complete preseason application must be signed by the required 
applicants specified in paragraph (p)(3) of this section, contain the 
information specified on the form, have all applicable fields 
accurately completed, and have all required documentation attached.
    (B) Each applicant must certify, through an affidavit, that the 
applicant has entered into a framework agreement that--
    (1) Specifies the CR crab fisheries that are the subject of the 
framework agreement;
    (2) Specifies the actions that the parties will take to reduce the 
need for, and amount of, an exemption;

[[Page 6287]]

    (3) Specifies the circumstances that could be an obstacle to 
delivery or processing under which the parties would execute an 
exemption contract and receive an exemption;
    (4) Specifies the actions that the parties would take to mitigate 
the effects of an exemption;
    (5) Specifies the compensation, if any, that any party would 
provide to any other party; and
    (6) Is signed by the holders of the IFQ and IPQ that are the 
subject of the framework agreement and by the community representative 
that is authorized to sign the framework agreement.
    (C) Each applicant must sign and date the affidavit and affirm 
that, under penalty of perjury, the information and the claims provided 
on the application are true, correct, and complete.
    (D) NMFS must receive the preseason application on or before 
October 15 of the crab fishing year for which the applicants are 
applying for an exemption.
    (1) If a preseason application is submitted by mail, the date of 
receipt of the preseason application by NMFS will be the postmark date 
of the application;
    (2) If an applicant disputes whether NMFS received a preseason 
application on or before October 15, the applicant must provide written 
documentation that was contemporaneous with NMFS's receipt of the 
application that NMFS received the application by October 15.
    (E) If NMFS does not receive a timely and complete preseason 
application on or before October 15 of a crab fishing year, NMFS will 
deny the preseason application; those applicants will not be able to 
receive an exemption for that crab fishing year.
    (F) If a preseason application is timely and complete, NMFS will 
approve the application. If NMFS approves a preseason application for 
an exemption, the applicants will be able to receive an exemption 
during the crab fishing year if the applicants comply with the 
requirements for an inseason notice of exemption specified below at 
paragraph (p)(4)(iii) of this section.
    (G) If NMFS denies a preseason application for any reason, the 
applicants may appeal the denial pursuant to Sec.  679.43 of this 
chapter.
    (H) NMFS will notify all of the applicants whether NMFS has 
approved or denied the preseason application.
    (iii) Part II: Inseason notice of exemption--
    (A) A complete inseason notice must:
    (1) Identify the IFQ amount and IPQ amount, by CR crab fishery, 
subject to the exemption;
    (2) Contain the information specified on the form, have all 
applicable fields accurately completed, and have all required 
documentation attached; and
    (3) Be signed by the required applicants specified in paragraph 
(p)(3) that also signed the preseason application.
    (B) Each applicant must certify, through an affidavit, that the 
applicants have entered into an exemption contract that--
    (1) Identifies the IFQ amount and IPQ amount, by CR crab fishery, 
is subject to the exemption contract;
    (2) Describes the circumstances under which the exemption is being 
exercised;
    (3) Specifies the action that the parties must take to mitigate the 
effects of the exemption;
    (4) Specifies the compensation, if any, that any party must make to 
any other party; and
    (5) Is signed by the holders of the IFQ and IPQ that are the 
subject of the exemption contract and by the community representative 
that is authorized to sign the exemption contract.
    (C) Each applicant must sign and date the affidavit and affirm 
that, under penalty of perjury, the information and the claims provided 
on the notice are true, correct, and complete.
    (D) NMFS must receive the inseason notice at least one day prior to 
the day on which the applicants want the exemption to take effect. If 
an inseason notice is submitted by mail, the date that NMFS receives 
the inseason notice is not the postmark date of the notice.
    (E) The effective date of the exemption is the day after NMFS 
receives a complete inseason notice. Any delivery of North Region IFQ 
or South Region IFQ outside the designated region prior to the 
effective date of the exemption is prohibited under Sec.  680.7(a)(2) 
and (a)(4). Any processing of North Region IPQ or South Region IPQ 
outside the designated region prior to the effective date of the 
exemption is prohibited under Sec.  680.7(a)(2) and (a)(4).
    (F) An exemption is effective for the remainder of the crab fishing 
year.
    (5) Regional delivery exemption report--(i) Each IFQ holder that 
signs a preseason application, described in paragraph (p)(4)(ii) of 
this section, must submit a Regional Delivery Exemption Report to NMFS 
that includes an explanation of--
    (A) The amount of IFQ, if any, set aside to reduce the need for, 
and the amount of, an exemption;
    (B) The mitigation measures employed before submitting an inseason 
notice;
    (C) The number of times an exemption was requested and used;
    (D) Whether the exemption was necessary; and
    (E) Any impacts resulting from the exemption on the fishery 
participants and communities that signed the preseason application.
    (ii) On or before June 15, IFQ holders must submit a copy of the 
Regional Delivery Exemption Report to the IPQ holders and community 
representatives that also signed the preseason application.
    (iii) On or before June 30, IFQ holders must submit the Regional 
Delivery Exemption Report to NMFS at the address in paragraph (p)(4)(i) 
of this section.
    (6) Public notice of the exemption. NMFS will post the effective 
date of an exemption and the Regional Delivery Exemption Reports on the 
NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov).

0
3. In Sec.  680.7, revise paragraphs (a)(2), (a)(4), (a)(7), (a)(8), 
and (a)(9) to read as follows:


Sec.  680.7  Prohibitions.

* * * * *
    (a) * * *
    (2) Receive CR crab harvested under an IFQ permit in any region 
other than the region for which the IFQ permit is designated, unless:
    (i) Western Aleutian Islands golden king crab are received 
following the effective date of a NMFS-approved exemption pursuant to 
Sec.  680.4(o), or
    (ii) The IFQ permit and IFQ amount are subject to an exemption 
pursuant to Sec.  680.4(p).
* * * * *
    (4) Use IPQ in any region other than the region for which the IPQ 
permit is designated, unless:
    (i) Western Aleutian Islands golden king crab IPQ is used following 
the effective date of a NMFS-approved exemption pursuant to Sec.  
680.4(o), or
    (ii) The IPQ permit and IPQ amount are subject to an exemption 
pursuant to Sec.  680.4(p).
* * * * *
    (7) For an IPQ holder to use more IPQ than the maximum amount of 
IPQ that may be held by that person. Use of IPQ includes all IPQ held 
by that person, and all IPQ crab that are received by any RCR at any 
shoreside crab processor or stationary floating crab processor in which 
that IPQ holder has a 10 percent or greater direct or indirect 
ownership interest, unless that IPQ crab meets the requirements in 
Sec.  680.42(b)(7) or Sec.  680.42(b)(8).
    (8) For a shoreside crab processor or stationary floating crab 
processor, that

[[Page 6288]]

does not have at least one owner with a 10 percent or greater direct or 
indirect ownership interest who also holds IPQ in that crab QS fishery, 
to receive in excess of 30 percent of the IPQ issued for that crab 
fishery, unless that IPQ meets the requirements described in Sec.  
680.42(b)(7) or Sec.  680.42(b)(8).
    (9) For any shoreside crab processor or stationary floating crab 
processor east of 174 degrees west longitude to use more than 60 
percent of the IPQ issued in the EAG or WAI crab QS fisheries, unless 
that IPQ meets the requirements described in Sec.  680.42(b)(8).
* * * * *
0
4. In Sec.  680.42,
0
a. Revise paragraph (b)(1)(ii); and,
0
b. Add paragraph (b)(8) to read as follows:


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

* * * * *
    (b) * * *
    (1) * * *
    (ii) Use IPQ in excess of the amount of IPQ that results from the 
PQS caps in paragraph (b)(1)(i) of this section, unless that IPQ is:
    (A) Derived from PQS that was received by that person in the 
initial allocation of PQS for that crab QS fishery, or
    (B) Subject to an exemption for that IPQ pursuant to Sec.  
680.4(p).
* * * * *
    (8) Any IPQ crab that is received by an RCR will not be considered 
use of IPQ by an IPQ holder for the purposes of paragraphs (b)(1) and 
(b)(2) of this section, if the IPQ is subject to an exemption pursuant 
to Sec.  680.4(p).
* * * * *
[FR Doc. 2013-02007 Filed 1-29-13; 8:45 am]
BILLING CODE P