2010-20325. Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program; Emergency Rule Extension

AGENCY:

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

ACTION:

Temporary rule; emergency action extension.

SUMMARY:

NMFS is extending the emergency action, implemented on February 18, 2010, to exempt individual fishing quota (IFQ) and individual processing quota (IPQ) issued for the Western Aleutian Islands golden king crab fishery from the West regional designation. Under the Bering Sea/Aleutian Islands Crab Rationalization Program, Federal regulations require that golden king crab harvested with IFQ with a West regional designation be delivered to a processor with West designated IPQ in the West region of the Aleutian Islands. An emergency exists because, due to a recent unforeseen event, no crab processing facility is open in the West region. This emergency rule extension is necessary to ensure that the exemption remains in effect to prevent disruption to the Aleutian Islands golden king crab fishery by allowing fishermen to deliver crab harvested with West designated IFQ to processors outside the West region and allow processors with West designated IPQ to process that crab outside the West region for the 2010/2011 fishing season. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs, and other applicable law.

DATES:

Effective from August 18, 2010, through February 20, 2011.

ADDRESSES:

Electronic copies of the Regulatory Impact Review (RIR) prepared for this action may be obtained from http://www.regulations.gov or from the NMFS Alaska Region website at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) provides authority for rulemaking to address an emergency. Under that section, a Regional Fishery Management Council may recommend emergency rulemaking, if it finds an emergency exists. At its December 2009 meeting, the North Pacific Fishery Management Council (Council) voted 10 to 1 to request that NMFS promulgate an emergency rule to relieve the existing regional delivery and processing requirement in the Western Aleutian Islands golden king crab fishery.

On February 18, 2010, NMFS published an emergency action to exempt West designated IFQ and West designated IPQ for the Western Aleutian Islands golden king crab fishery from the West regional designation in regulations at 50 CFR 680.40(c)(4) and § 680.40(e)(2), respectively, until August 17, 2010 (75 FR 7205). NMFS invited public comments until March 22, 2010. NMFS received no public comments.

Removing the West regional designation from this IFQ and IPQ removes the requirement that these shares be used in the West region. With this exemption, Western Aleutian Islands golden king crab harvested with West designated IFQ could be delivered to a processor with IPQ in any location, and processors could process crab using West designated IPQ in any location. The preamble to the emergency rule (75 FR 7205, February 18, 2010) provides additional background information.

Section 305(c)(3)(B) of the Magnuson-Stevens Act authorizes NMFS to extend the emergency action for up to 186 days beyond the August 17, 2010, expiration of the initial emergency action, provided the public has had an opportunity to comment on the emergency regulation and, in the case of a Council recommendation, the Council is actively preparing a fishery management plan amendment to address the emergency on a permanent basis.

At its April 2010 meeting, the Council adopted Amendment 37 to the FMP to permanently address the emergency by establishing a process for quota share holders, processor quota share holders, and the municipalities of Adak and Atka to agree to and notify NMFS when deliveries are exempt from the West regional designation requirements. The Council and NMFS are preparing the amendment and rulemaking documents for review by the Secretary of Commerce.

With this emergency rule extension, NMFS would extend the exemption for Class A IFQ and IPQ issued for the Western Aleutian Islands golden king crab fishery from the West regional designation for an additional 186 days. The emergency rule extension would provide relief for the 2010/2011 crab fishing season and enable the fishery to occur during the time period Amendment 37 and its implementing regulations are under Secretarial review.

Classification

The Assistant Administrator for Fisheries, NOAA, has determined that this emergency rule extension is consistent with the national standards and other provisions of the Magnuson-Stevens Act and other applicable laws. NMFS has the authority to extend the emergency action for up to 186 days beyond the August 17, 2010, expiration of the initial emergency action, as authorized under section 305(c)(3)(B) of the Magnuson-Stevens Act.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. In the initial emergency rule published on February 18, 2010 (75 FR 7205), NMFS requested comments and received none.

The measures of this emergency rule extension remain unchanged from the measures contained in the initial emergency action. If the initial emergency action were allowed to lapse, a substantial portion of the fishery will likely remain unharvested, causing economic harm to fishery participants. Extending the provisions of the emergency rule without additional notice and opportunity for public comment will ensure the 2010/2011 Aleutian Islands golden king crab fishery continues uninterrupted and will prevent unnecessary adverse economic impacts. Therefore, for the reasons outlined above, the Assistant Administrator finds it is unnecessary and contrary to the public interest to provide any additional notice and opportunity for public comment under 5 U.S.C. 553(b)(B) prior to publishing the emergency rule extension.

Because this rule relieves a restriction by exempting IFQ and IPQ from the West region designation, it is not subject to the 30-day delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1).

This emergency rule extension has been determined to be not significant for purposes of Executive Order 12866. The regulatory impact review prepared for this action is available from NMFS (see ADDRESSES).

No duplication, overlap, or conflict between this action and existing Federal rules has been identified.

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is not subject to the requirement to provide prior notice and opportunity for public comment pursuant to 5 U.S.C. 553 or any other law.

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

Dated: August 11, 2010.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.