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