Federal Register, Volume 77 Issue 97 (Friday, May 18, 2012)

[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Rules and Regulations]
[Pages 29556-29563]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12153]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0906041011-2432-02]
RIN 0648-AX91

Fisheries of the Exclusive Economic Zone Off Alaska; Pacific
Halibut and Sablefish Individual Fishing Quota Program

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to modify the Individual Fishing
Quota (IFQ) Program for the Fixed-Gear Commercial Fisheries for Pacific
Halibut and Sablefish in Waters in and off Alaska (IFQ Program) by
revoking quota share (QS) that have been inactive since they were
originally issued in 1995. Inactive QS are those held by persons that
have never harvested their IFQ and have never transferred QS or IFQ
into or out of their IFQ accounts.
This action is necessary to achieve the catch limit from the
halibut fisheries and optimum yield from the sablefish fisheries in
Alaska in accordance with National Standard 1 of the Magnuson-Stevens
Fishery Conservation and Management Act, and this action will achieve
more efficient use of these species. The intended effect is to promote
the management provisions in the Northern Pacific Halibut Act of 1982,
the Fishery Management Plan for Groundfish of the Bering Sea and
Aleutian Islands Management Area, and the Fishery Management Plan for
Groundfish of the Gulf of Alaska.

DATES: Effective June 18, 2012.

ADDRESSES: Electronic copies of this rule, the categorical exclusion
memorandum, the Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (RIR/IRFA), and the Regulatory Impact Review/Final Regulatory
Flexibility Analysis (RIR/FRFA) prepared for this action are available
from http://www.regulations.gov or from the NMFS Alaska Region Web site
at http://alaskafisheries.noaa.gov. Written requests may be submitted
by mail to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668,
Attn: Ellen Sebastian, Records Officer; or in person at NMFS, Alaska
Region, 709 West 9th Street, Room 420A, Juneau, Alaska. Written
comments regarding the burden-hour estimates or other aspects

[[Page 29557]]

of the collection-of-information requirements contained in this action
may be submitted to NMFS at the above address and by email to OIRA_Submission@omb.eop.gov, or by fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peggy Murphy, (907) 586-7228.

SUPPLEMENTARY INFORMATION:

Management of the Halibut and Sablefish IFQ Fisheries

Management of the commercial fishery for Pacific halibut
(Hippoglossus stenolepis) in and off Alaska is based on an
international agreement between Canada and the United States. This
agreement, titled ``Convention Between United States of America and
Canada for the Preservation of the Halibut Fishery of the Northern
Pacific Ocean and Bering Sea'' (Convention), was signed in Ottawa,
Canada, on March 2, 1953, and amended by the ``Protocol Amending the
Convention,'' signed in Washington, DC, March 29, 1979. The Convention
is administered by the International Pacific Halibut Commission (IPHC)
and is given effect in the United States by the Northern Pacific
Halibut Act of 1982 (Halibut Act).
The Halibut Act (section 773(c)) authorizes the North Pacific
Fishery Management Council (Council) to develop halibut fishery
regulations, including limited access regulations that are in addition
to, and not in conflict with, approved IPHC regulations for U.S.
Convention waters. Federal regulations governing the halibut fisheries
appear at 50 CFR part 300, subpart E. Halibut regulations may be
implemented by NMFS only after approval by the Secretary of Commerce
(Secretary). The Council has exercised this authority most notably in
the development of the IFQ Program codified at 50 CFR part 679, subpart
D.
Federal management of the commercial fishery for sablefish
(Anoplopoma fimbria) is authorized by the Fishery Management Plan for
Groundfish of the Bering Sea and Aleutian Islands Management Area and
the Fishery Management Plan for Groundfish of the Gulf of Alaska
(FMPs). The FMPs were prepared by the Council under authority of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1801 et seq.) (Magnuson-Stevens Act) and implemented by regulations at
50 CFR part 679.

IFQ Program

The Council and NMFS developed the IFQ Program for the halibut and
sablefish fixed-gear fisheries in waters in and off Alaska. The Council
adopted the IFQ Program in 1991 under the authority of the Halibut Act
and the Magnuson-Stevens Act. The preamble to the proposed rule for the
IFQ Program, published December 3, 1992 (57 FR 57130), details the
conservation and management background leading to the Council's
adoption of the IFQ Program. NMFS implemented the program on November
9, 1993 (58 FR 59375) through Federal regulations at 50 CFR part 679.
Fishing under the IFQ Program began on March 15, 1995. The IFQ Program
is designed to maintain the social character and economic benefits of
the commercial, fixed-gear fisheries that Alaskan coastal communities
rely on as a source of revenue. The Council and NMFS intend the IFQ
Program to provide economic stability for the Pacific halibut and
sablefish commercial fisheries and improve long-term productivity of
the resources.
The IFQ Program limits access to the halibut and sablefish fixed-
gear fisheries in waters in and off Alaska to persons holding QS. Quota
Share was initially issued to persons who owned or leased vessels that
made legal commercial landings of Pacific halibut or sablefish during
1988-1990. The intent was to assign initial QS only to those fishermen
then currently active in the halibut and sablefish fixed-gear
fisheries. Once issued to a person, QS is held by that person until it
is transferred, suspended, or revoked. The IFQ Program allows fishermen
to transfer QS to other initial issuees or to those who have a
Transferable Eligibility Certificate, giving them flexibility to
determine what type of investment to make based on when, where, and how
much halibut and sablefish they can harvest.
The amount of halibut and sablefish that each QS holder may harvest
is calculated annually and issued as IFQ pounds on an IFQ permit. An
IFQ permit authorizes participation in the fixed-gear fishery for
Pacific halibut in and off Alaska, and in most fixed-gear sablefish
fisheries off Alaska. IFQ permits are issued annually to persons
holding Pacific halibut and sablefish QS or to those persons who are
recipients of IFQ transfers from QS holders.
Persons holding QS have harvesting privileges for IFQ pounds of
halibut or sablefish that are derived annually from their QS holdings.
The amount (in pounds) specified on an permit is determined by the
number of QS units held for a species, the total number of QS units
issued for that species in a specific regulatory area, and the total
allowable catch (TAC) of that species allocated for IFQ fisheries in a
particular year, as modified by adjustments from the prior year's
harvest.
The IFQ Program requires IFQ permit holders to be on board the
vessel to maintain a predominantly ``owner-operated'' fishery. A narrow
exemption exists for initial recipients of QS. Initial recipients of
catcher vessel QS may be absent from a vessel conducting IFQ halibut or
sablefish fishing, provided the QS holder can demonstrate a minimum
specified level of ownership of the vessel that harvests the IFQ
halibut or sablefish, as well as representation on the vessel by a
hired master designated under IFQ regulations. This exception allows
fishermen who historically operated their fishing businesses using
hired masters before the implementation of the IFQ Program to retain
the flexibility of using hired masters under the IFQ Program.

Description of Final Action

This final rule authorizes NMFS to revoke halibut and sablefish QS
that have been inactive since they were originally issued in 1995.
Inactive QS are those held by persons who have never harvested the IFQ
derived from initially issued QS and who have never transferred QS or
IFQ into or out of their IFQ Program accounts. NMFS will not revoke the
inactive QS of any person who responds in writing to NMFS within 60
days after NMFS issues a Notice of Determination of Quota Share
Inactivity, requesting that the inactive QS not be revoked. The action
provides halibut and sablefish fishermen holding active QS an
opportunity to fish for currently unavailable QS and more fully harvest
these species' TACs.
The background and need for this action were described in detail in
the preamble to the proposed rule published in the Federal Register on
August 23, 2010 (75 FR 51741). In summary, amending the IFQ Program
regulations will improve access to all available QS, increase the
operational flexibility of fishermen participating in the IFQ
fisheries, and increase yield from QS to help achieve optimum yield. In
addition, data collection, recordkeeping, and reporting of inactive QS
and the administrative tasks for managing inactive QS are eliminated.
Less information to administer and manage will streamline aspects of
the IFQ Program, reduce administrative costs, and promote efficient use
of IFQ Program and participant resources. To achieve these objectives,
the final rule authorizes NMFS to revoke inactive QS.
Halibut and sablefish QS was initially allocated to persons who
qualified to hold an IFQ permit pursuant to

[[Page 29558]]

regulations at Sec. 679.40(a). These regulations specified no minimum
amount of halibut or sablefish QS to be issued. As a result, small
amounts of QS were initially issued to just over 200 persons who to
date have never fished the IFQ derived from that QS, or transferred the
QS to another person. Thus, the recipients of these QS allocations have
left their QS inactive for the entire 16 years since it was initially
issued. They presumably have elected not to participate actively in the
IFQ fisheries, are no longer in the commercial fishing industry, are
deceased, or have been unable or unwilling to divest or otherwise
transfer their inactive QS. Persons holding inactive QS have had the
same opportunity as persons with active QS to participate in the IFQ
Program by fishing their IFQ or transferring their QS and IFQ.
As a result of inactive QS, some IFQ and a portion of the TAC is
not harvested. This reduces economic and social benefits from IFQ
harvests typically realized by fishery dependent businesses and the
public. Consumers are deprived of product, active IFQ fishermen are
precluded from harvesting the IFQ derived from inactive QS, and new
entrants to the IFQ fisheries are denied access to halibut and
sablefish QS held by persons who have never participated in the IFQ
fisheries. This final rule will improve operational flexibility of
active program participants to harvest species TACs, and will allow
broader opportunity to achieve the halibut fishery's constant
exploitation yield and the optimum yield from the sablefish fisheries
as required by National Standard 1 of the Magnuson-Stevens Act.
Moreover, even though QS is inactive, NMFS must perform routine
administrative tasks to process, monitor, and maintain data on inactive
QS, including recordkeeping, regular correspondence with the IFQ permit
holder that holds inactive QS, annual allocation of IFQ pounds, and
data reporting. The administrative work detracts time from NMFS
managers that can be used more productively. Additionally, IFQ permit
holders help pay for the program costs through the IFQ cost recovery
program (Sec. 679.45) by remitting a fee for IFQ species landed. When
QS remains inactive, no landing fees accrue to the program, although
the IFQ permit holder with the inactive QS continues to receive
administrative support from the IFQ Program. This action will eliminate
the administrative tasks and costs for managing inactive QS, because
the rule removes that QS entirely. Less information to administer and
manage will streamline aspects of the IFQ Program to the benefit of QS
managers and program participants. Reducing the administrative costs
and burden will allow for more efficient use of IFQ Program resources.
This action revokes inactive halibut and sablefish QS. The portion
of the annual halibut and sablefish TACs represented by the revoked QS
and associated IFQ will be distributed in future years among IFQ permit
holders in an amount proportional to their IFQ allocation.
Alternatively, if a permit holder requests NMFS not to revoke his or
her inactive QS, then NMFS will assign an active status to that QS
because the permit holder took action in making the request. This QS
retained by request will remain integrated with previously-active QS
and the associated IFQ will continue to be issued annually.
Revoking QS will not change the initial recipient status of the QS
holder. Hence, if a person was initially allocated QS that is revoked
under this action and subsequently acquires new QS in the future, that
person retains the benefit of being an initial recipient of QS for
purposes of retaining the flexibility of using a hired master.

Public Notice

In June 2006, the Council acted on a multi-part IFQ regulatory
amendment package that included this action on inactive QS. The Council
adopted a preferred alternative to (1) revoke all inactive halibut and
sablefish QS from the QS pools and (2) redistribute inactive halibut QS
through a lottery if the final amount of revoked inactive QS exceeds
the number of QS units equivalent to 50,000 pounds (22.7 mt) for all
IPHC regulatory areas in the year of the lottery. NMFS separated the
Council's multiple recommendations into different regulatory amendment
packages. This final rule is the final one of the series recommended by
the Council in 2006. As a result, several years have passed between the
Council's action notifying the public of the pending change to the IFQ
Program and publication of this final rule.
Since Council action, NMFS, Alaska Region, has maintained a Web
site listing of inactive QS and the information needed to facilitate
voluntary transfers of QS. NMFS also contacted persons holding inactive
halibut or sablefish QS by direct mail. NMFS notified these persons of
the status of this action in letters sent by direct mail in January
2008 and again in March 2009. NMFS communicated that it was pursuing
rulemaking that, if implemented, would require persons to notify NMFS
in writing that they do not want their inactive QS and associated
annual IFQ revoked. In between these notification letters, the amount
of inactive halibut QS declined below the threshold poundage to conduct
a lottery prompting the Council, in February 2009, to reaffirm its
previous recommendation for the Preferred Alternative, but without the
lottery. NMFS also provided broad public notice of the Council's intent
to withdraw inactive QS with publication of the proposed rule (75 FR
51743) in the Federal Register, August 23, 2010.
The RIR/FRFA prepared for this action (see ADDRESSES) finds that
when the Council initially considered the proposal in June 2006, 534
persons held 865,586 units of inactive halibut QS (280,000 lbs [127 mt]
in 2006 equivalents). Inactive sablefish QS equating to 57,522 units
(16,000 lbs [7.3 mt] in 2006 equivalents) was held by seven persons. As
of December 21, 2011 (the most current data available), 202 persons
held 156,218 units of inactive halibut QS (10,597 lbs [4.8 mt] in 2011
equivalents) and two persons held 9,281 units of inactive sablefish QS
(695 lbs [0.32 mt] in 2011 equivalents). Overall, the communications
with IFQ permit holders stimulated transfers of inactive QS that
resulted in a 62 percent decline in the number of persons holding
inactive halibut QS and a 71 percent decline in the number of people
holding inactive sablefish QS. The decline in QS units was also similar
for both species: Inactive halibut QS declined 82 percent and inactive
sablefish QS declined 84 percent.

Official Notice and Record

This final rule implements regulations authorizing NMFS to send
each holder of inactive QS a ``Notice of Determination of Quota Share
Inactivity'' (Inactive QS Notice). The Inactive QS Notice will be sent
by certified mail to the address of record at the time the Inactive QS
Notice is sent (Sec. 679.43(e)). The inactive QS holder bears the
responsibility if the Inactive QS Notice is not received because the
inactive QS holder has not notified NMFS of a change in the address of
record. The Inactive QS Notice will describe the inactive status of the
QS, identify the IFQ permit holder, and provide the date the authorized
60-day response period will end.
NMFS will issue an Inactive QS Notice alerting a holder of inactive
halibut or sablefish QS that their QS are considered inactive based on
records maintained by NMFS. An Inactive QS Notice will be issued if
official records indicate that the QS holder initially issued the QS
never landed their IFQ

[[Page 29559]]

halibut or IFQ sablefish, or transferred any QS or IFQ to or from
another person. The official record of an IFQ halibut or IFQ sablefish
landing contains the IFQ permit number to which the IFQ landing was
credited. The number of landings and weight of each landing will be
based only on legally submitted harvest documentation. Legal
documentation is an IFQ Landing Report submitted under Sec. 679.5,
which indicates, among other data, the amount of IFQ halibut or IFQ
sablefish harvested, the IPHC or groundfish reporting area in which the
IFQ amounts were harvested, the vessel and gear type used for the
harvest, and the date of harvesting, landing, or reporting. NMFS
presumes that the official record data sources are correct. If a person
believes the official record is incorrect, his or her claim can be
raised in a separate correspondence to NMFS, Restricted Access
Management Program, Juneau, AK (see ADDRESSES) prior to the end of the
60-day response period specified in the Inactive QS Notice.

Options for Persons Holding Inactive Quota Share

A person who holds inactive QS has two options when responding to
an Inactive QS Notice. During the 60-day response period specified in
the Inactive QS Notice, the person holding the inactive QS could (1) do
nothing, thereby resulting in revocation of the inactive QS; or (2)
request in writing that the inactive QS be considered active and not
revoked. Alternatively, a person holding inactive QS could exercise
options that have existed since the beginning of the IFQ Program in
1995 to either transfer some or all of the inactive QS, or harvest
halibut or sablefish based on IFQ derived from the inactive QS. These
options are further explained below.
NMFS will revoke the inactive QS of a QS holder who fails to
respond to NMFS within the 60-day period specified in the Inactive QS
Notice. NMFS will remove revoked QS from the QS pool and will not
generate an annual allocation of IFQ poundage for IFQ halibut or IFQ
sablefish. Any IFQ derived from the inactive QS also will be revoked at
the time that the inactive QS are revoked. After inactive QS are
revoked, the previous holder of those QS can participate in the IFQ
halibut or IFQ sablefish fisheries only if they subsequently receive QS
or IFQ, or both, by transfer.
A person holding inactive QS who wishes to retain the inactive QS
may notify NMFS in writing that he or she does not want the inactive QS
revoked; this written notification must be received within the 60-day
response period specified in the Inactive QS Notice. This notification
will demonstrate sufficient activity in the IFQ Program to allow NMFS
to activate the otherwise inactive QS. After receiving the QS holder's
timely written notification, NMFS will allocate IFQ based on the
activated QS as it has done since the beginning of the IFQ Program, and
the holder of such QS will continue to benefit from the initial
recipient privileges specified in the regulations implementing the IFQ
Program (Sec. Sec. 679.41 and 679.42). The IFQ halibut and IFQ
sablefish harvesting privilege for an initial recipient of QS will
continue as it does for all other initial recipient QS holders.
A person holding inactive QS who fails to respond to the Inactive
QS Notice from NMFS within the 60-day response period may appeal to the
NMFS National Appeals Office to submit his or her response late
pursuant to Sec. 679.43. As a practical matter, any other written
challenge of the Inactive QS Notice received within the 60-day response
period will be considered a request to not revoke the inactive QS. Such
challenges will activate the otherwise inactive QS by demonstrating a
reaction and, therefore, at least minimal activity in the IFQ Program.
The options to activate otherwise inactive QS by either
transferring some or all of the inactive QS, or harvesting halibut or
sablefish based on IFQ derived from the inactive QS, will continue to
be available to a person holding inactive QS through the end of the 60-
day response period specified in the Inactive QS Notice. No additional
period of time will be provided to demonstrate these activities.

Written Response to Inactive QS Notice

The Inactive QS Notice provides the person holding the inactive QS
with the opportunity to request in writing that inactive QS and IFQ
remain active. NMFS will accept written responses by mail, courier or
hand-delivery, or fax. The response deadline will be 60 days after NMFS
sends the Inactive QS Notice and will be stamped on the Notice and
identified as the Response Date. Responses must be received by NMFS no
later than the date printed on the Inactive QS Notice, or, if sent by
mail, postmarked by that date. If delivered by hand or carrier, the
receipt date will be the date the response is stamped received by NMFS.
If sent by facsimile, the receipt date will be the date stamped
received by NMFS. Any other form of response, including email, will not
be accepted. The Inactive QS Notice will be constructed to allow the
bottom half of the document to be separated and used as a mail-in
response form to NMFS indicating whether the holder of the inactive QS
wants to retain the QS. The following statement will be printed on the
mail-in response form as an expression of the QS holder's request to
not revoke the inactive QS: ``I [print first name, middle initial, and
surname] request that NMFS not revoke my quota share authorized by my
signature on this date; Signed [Write signature], Dated [Enter the
current date].'' A holder of inactive QS may also respond without using
the provided form, but must include the same information, names,
signatures, and dates as specified on the mail-in response form. Each
completed form or other response statement received by NMFS by the
response date and verified correct will result in a letter of
acknowledgement issued to the person identified as the holder of the
inactive QS or his or her legal representative. The letter will serve
as final agency action advising that QS will be ``active'' and no
further response by the person holding the inactive QS or by NMFS will
be required.

Previous Response to NMFS Letters

Any previous request to NMFS to activate inactive QS is not
sufficient for NMFS to change that QS status. If a response was
submitted to NMFS regarding inactive QS and the IFQ permit holder has
since officially activated the QS by completing a transfer or fishing
the IFQ, then no further response is required. If a QS holder
previously responded to NMFS' letters about inactive QS and requested
he or she be able to keep the inactive QS, then the IFQ permit holder
must again submit that request pursuant to this final rule to avoid
revocation of inactive QS.

Public Comment

NMFS proposed this action in the Federal Register on August 23,
2010 (75 FR 51741). NMFS received two comments during the public
comment period for the proposed rule. These comments are addressed
below.
Comment 1: The commenter maintains that this action will result in
an increased number of hooks deployed and therefore will increase the
risk that short-tailed albatross will be caught and drowned in the
halibut longline fishery. The commenter considers this redistribution
of TAC and the current use of improved seabird bycatch avoidance
measures in the halibut fishery to be a change in the action previously
analyzed in the 1998 Bering Sea Aleutian Islands and Gulf of Alaska

[[Page 29560]]

Halibut Fishery Biological Opinion (1998 Biological Opinion) issued by
the U.S. Fish and Wildlife Service (FWS) on March 13, 1998 (http://alaskafisheries.noaa.gov/protectedresources/seabirds/section7/pachalibut.pdf). In addition, the commenter considers the increased
population of short-tailed albatross to be a change in the
environmental baseline. For these reasons, the commenter recommends
that NMFS reinitiate section 7 consultation with FWS on the effects of
the Pacific halibut fishery on the short-tailed albatross. The
commenter also recommends restructuring the observer program to require
observers on commercial halibut longline vessels.
Response: NMFS disagrees that re-initiation of consultation with
the FWS is required under section 7 of the Endangered Species Act
(ESA), 16 U.S.C. 1536.
Section 7 of the ESA and implementing regulations at 50 CFR part
402 require each federal agency, in consultation with either the FWS or
NMFS depending on the species involved, to insure that any action
authorized, funded or carried out by such agency is not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of
critical habitat of any endangered or threatened species. In April
1997, NMFS re-initiated consultation regarding the effects of the
Pacific halibut commercial fishery on the endangered short-tailed
albatross. In March 1998, the FWS issued its 1998 Biological Opinion
that the Pacific halibut fishery is not likely to jeopardize the
continued existence of the endangered short-tailed albatross.
The 1998 Biological Opinion included an incidental take statement
authorizing incidental take of up to two short-tailed albatross every
two years. It stated that, as provided in 50 CFR 402.16, re-initiation
of formal consultation is required ``when discretionary Federal agency
involvement or control over the action has been retained (or is
authorized by law) and if: (1) The amount or extent of incidental take
is exceeded; (2) new information reveals effects of the agency action
that may affect listed species or critical habitat in a manner or to an
extent not considered in this opinion; (3) the agency action is
subsequently modified in a manner that causes an effect to the listed
species or critical habitat not considered in this opinion; or (4) a
new species is listed or critical habitat designated that may be
affected by the action.'' 1998 Biological Opinion, page 30. The 1998
Biological Opinion analyzed the effects of authorizing the commercial
halibut longline fishery in the Bering Sea Aleutian Islands and Gulf of
Alaska on the short-tailed albatross. The halibut and sablefish harvest
quotas have been managed under the IFQ Program since 1995;
specifically, the IFQ Program analyzed in the 1998 Biological Opinion
allocates the entire total TACs of sablefish and Pacific halibut to the
IFQ fleets commercially fishing for these species. In other words,
revoking inactive QS will not increase the number of hooks deployed in
the fishery relative to the level of harvest analyzed in the 1998
Biological Opinion, because that opinion assessed the possibility of a
100 percent harvest rate, which is higher than the current actual
harvest rate. Furthermore, the amounts of sablefish and Pacific halibut
likely to be made available for harvest by this final rule constitute
only a very small proportional increase in harvest of the sablefish and
Pacific halibut TACs. For example, in 2011, 204 QS holders out of a
total of 2,954 held inactive QS, and as a result, approximately .02
percent of the IFQ TAC for halibut and sablefish was not harvested.
Consequently, NMFS determines that the final rule does not modify
agency action in a manner that causes an effect to the short-tailed
albatross that was not considered in the 1998 Biological Opinion.
Furthermore, FWS previously concurred that revised NMFS regulations
implementing improved seabird avoidance measures in the hook-and-line
fisheries off Alaska are not likely to adversely affect the short-
tailed albatross. Thus, NMFS disagrees that improved seabird avoidance
measures and revised regulations to implement these measures is a
change in the action requiring re-initiation of consultation.
In addition, although the short-tailed albatross population has
increased, NMFS disagrees that this population increase amounts to a
change in the environmental baseline that reveals effects of the action
that may affect the short-tailed albatross in a manner or to an extent
not considered in the 1998 Biological Opinion. In the 1998 Biological
Opinion, FWS analyzed the upward trend in the short-tailed albatross
population and expected this trend to continue, which it has. Because
the 1998 Biological Opinion considered the effects of the halibut
fishery on an increasing population of short-tailed albatross, NMFS
disagrees that the upward population trend is new information
constituting a change in the baseline. Therefore, re-initiation of
formal consultation is not required based on the increasing population
trend of short-tailed albatross that was analyzed in the 1998
Biological Opinion.
NMFS recognizes the commenter's concern about the effects of the
commercial Pacific halibut longline fishery on short-tailed albatross.
NMFS agrees that data collected by observers on commercial halibut
longline vessels will likely improve the knowledge of the effects this
fishery might have on the short-tailed albatross. The 1998 Biological
Opinion's reasonable and prudent measures include a requirement to
implement a plan to investigate all options for monitoring the Pacific
halibut fishery in waters off Alaska. In October 2010, the North
Pacific Fishery Management Council recommended that the halibut fishery
be subject to observer coverage under the restructured North Pacific
observer program. The extent of observer coverage in the halibut
fishery and the implementation date of the restructured observer
program have yet to be determined. NMFS is developing the proposed rule
for the restructured observer program and will inform the public of the
potential effects of this action when the details become available.
While NMFS does not believe that reinitiating section 7
consultation is warranted at this time, NMFS is compiling research data
that will support a future re-evaluation of the effects of the Pacific
halibut and groundfish fisheries off Alaska on short-tailed albatross,
Steller's eider, and spectacled eiders. This explanation will include
updated information on the improved seabird avoidance and habitat
protection measures, new seabird bycatch mitigation research, and the
potential impacts of a restructured observer program. NMFS anticipates
that the requisite information and analyses will be available in the
next year. NMFS is working with the public on Alaska fisheries issues
that may affect ESA-listed species and will keep the public informed of
the progress in developing the restructured observer program to ensure
concerns are addressed.
Comment 2: Delay the inactive QS action until alternative options
are identified for residents of small rural communities (less than
1,500 people) in the Gulf of Alaska to sell their category D QS to a
Community Quota Entity (CQE) that represents the community. Revoking
inactive QS would preempt future opportunity to transfer inactive
category D QS to CQEs. Quota share is specific to regulatory areas and
vessel categories. Halibut category D QS is specific to vessels 35 feet
or less, length overall.

[[Page 29561]]

Response: This action provides IFQ permit holders with inactive QS
an opportunity to retain QS by request and avoid removal of inactive
QS. Permit holders responding to NMFS that they want to retain their
inactive halibut or sablefish QS will have their QS status changed to
active. IFQ permit holders also have the option to fish or transfer the
QS to activate it any time prior to NMFS revoking the QS. Accordingly,
NMFS sees no need to delay the action.
The CQE Program allows CQEs representing communities in IPHC
regulatory Areas 2C and Area 3A to purchase halibut category B and C QS
and prohibits them from purchasing halibut category D QS. One of the
primary reasons the Council established this prohibition was to help
ensure halibut category D QS would continue to be available to new
entrants and crew members who wanted to start their own businesses.
There was concern that an influx of CQEs in Area 2C and 3A would drive
up the market for halibut category D QS, and result in more expensive,
and less available, QS for individuals. Generally, category D QS are
the least expensive category of halibut QS, as they can only be used on
the smallest category of vessel. Category D QS are often used by
smaller operations, or new entrants, and there is a relatively small
amount of halibut category D QS designated for each management area.
After NMFS received Comment 2, the commenters submitted the comment
as a proposed regulatory change to the Council. In February 2011 the
Council recommended that NMFS amend Federal regulations to allow Area
3A CQEs to purchase a limited amount of halibut category D QS with
restrictions. NMFS intends to develop a proposed rule according to the
Council's regulatory recommendation and, once approved, could proceed
with a call for public comments. Following a review of the public
comments on the proposed rule and subject to approval by the Secretary,
NMFS may publish a final rule to implement this action. Holders of
inactive halibut QS who reside in CQE communities who want to retain
their inactive QS may do so by responding to NMFS in writing within the
single 60-day response period and requesting that NMFS change the
status of his or her QS and IFQ to ``active.'' If regulations are
changed in the future to allow CQE purchase of halibut category D QS,
then persons who activate their QS by request, lease, or by documenting
a landing by the deadline in this action could transfer their activated
QS to enhance fishery participation of individual CQE community
residents and CQE communities.

Changes From the Proposed Rule

NMFS has changed the method of response to the Inactive QS Notice
from mail only as in the proposed rule. NMFS determined that the
requirement that response to the Inactive QS Notice be submitted only
by U.S. Mail was too restrictive. Therefore, NMFS has broadened the
method of submission to include hand-carried responses or responses by
facsimile. This change is consistent with methods of submission
authorized in other regulations under 50 CFR part 679, where NMFS has
required an application or response by a date certain. NMFS did not
make any other changes from the proposed rule, published August 23,
2010 (75 FR 51741).

Classification

The Administrator, Alaska Region, NMFS, determined that this rule
is necessary for the conservation and management of the fisheries
managed under the halibut and sablefish IFQ Program and that it is
consistent with the Halibut Act, the FMPs, the national standards and
other provisions of the Magnuson-Stevens Act, and other applicable
laws.
Regulations governing the U.S. fisheries for Pacific halibut are
developed by the International Pacific Halibut Commission, the Pacific
Fishery Management Council, the North Pacific Fishery Management
Council, and the Secretary of Commerce. Section 5 of the Northern
Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the
Regional Council having authority for a particular geographical area to
develop regulations governing the allocation and catch of halibut in
U.S. Convention waters as long as those regulations do not conflict
with IPHC regulations. This action is consistent with the Council's
authority to allocate halibut catches among fishery participants in the
waters in and off Alaska.

Executive Order 12866

This final rule has been determined to be not significant for
purposes of Executive Order 12866. This final rule also complies with
the Secretary's authority under the Halibut Act to implement management
measures for the halibut fishery.

Regulatory Flexibility Act

A final regulatory flexibility analysis (FRFA) was prepared for
this rule as required by section 604(a) of the Regulatory Flexibility
Act (RFA). A FRFA incorporates the initial regulatory flexibility
analysis (IRFA), a summary of the significant issues raised by the
public comments in response to the IRFA and NMFS' responses to those
comments, if any, and a summary of the analyses completed to support
the action. A copy of the RIR/FRFA is available from NMFS (see
ADDRESSES).
The proposed rule was published in the Federal Register on August
23, 2010 (75 FR 51741). An RIR/IRFA was prepared and described in the
``Classification'' section of the preamble to the proposed rule. A copy
of the RIR/IRFA is available from NMFS (see ADDRESSES). The public
comment period ended on September 22, 2010. NMFS received two unique
comment letters. Although neither of the comments directly addressed
the IRFA or significant economic impact on small entities, Comment 2
referred to the potential for indirect economic impact on CQEs, which
are not directly regulated by this action. No changes were made in the
final rule from the proposed rule.
The RFA emphasizes (1) predicting adverse impacts on (1) small
entities as a group distinct from other entities; and (2) considering
alternatives that may minimize the significant economic impact on small
entities, while still achieving the stated objectives of the action.
The requirements for a FRFA are contained in section 604(a) of the RFA
(5 U.S.C. 604(a)) and a complete description of the requirements are
listed in the FRFA. The need for, and the objectives of, this final
rule are in the section of the preamble titled ``Description of Final
Action.'' The legal basis for this final rule is described in the
preamble section titled ``Management of the Halibut and Sablefish IFQ
Fisheries.'' A summary of the public comments and NMFS' responses are
presented in the preamble section titled ``Public Comments.''
Descriptions of the voluntary compliance requirements of the rule are
subsumed in sections of the preamble titled ``Options for Persons
Holding Inactive Quota Share'' and ``Written Response.'' Sections of
the preamble titled ``Public Notice'' and ``Official Notice and
Record'' describe multiple steps NMFS has taken to alert persons with
inactive QS of their options to activate QS and minimize economic
impacts on these small entities from revoking their QS. Each of the
above RFA requirements that are discussed in the preamble are not
repeated here. The remaining FRFA requirements are to describe and
estimate the current number of small entities to which the rule
applies, explain why each one of the other alternatives to the rule
that

[[Page 29562]]

could have affected the impact on small entities was rejected, and
include a statement of the factual, policy, and legal reasons for
selecting the alternative implemented by this action. These FRFA
requirements are summarized here.
For purposes of a FRFA, the Small Business Administration (SBA) has
established that a business involved in fish harvesting is a small
entity if it is independently owned and operated, not dominant in its
field of operation (including its affiliates), and has combined annual
gross receipts not in excess of $4 million for all its affiliated
operations worldwide. A seafood processor is a small entity if it is
independently owned and operated, not dominant in its field of
operation, and employs 500 or fewer persons on a full-time, part-time
or temporary, or other basis at all its affiliated operations. Because
the SBA does not have a size criterion for businesses that are involved
in both the harvesting and processing of seafood products, NMFS has in
the past applied, and continues to apply, the SBA's fish harvesting
criteria for these businesses because catcher/processors are first and
foremost fish harvesting businesses. Therefore, a business involved in
both the harvesting and processing of seafood products is a small
business if it meets the $4 million criterion for fish harvesting
operations.
Directly regulated entities in this action are persons that hold
halibut QS or sablefish QS and whose future harvests would be deducted
from the species' TAC. Currently, NMFS does not possess sufficient
ownership and affiliation information to determine the precise number
of QS holders considered small entities in the IFQ Program. Lacking
more precise data on small entities, NMFS estimated the maximum number
of small entities that are adversely impacted by this action to equal
all inactive halibut QS and inactive sablefish QS holders, or 219
entities. The analysis also assumes that recipients of the additional
QS from the proportional distribution of the IFQ from revoked QS will
benefit from this rule, and these entities are therefore are not
discussed further.
Small entities that could be impacted by this action are the QS
holders whose inactive QS will be revoked unless they voluntarily
comply with the requirements specified in regulation to retain the
impacted QS. At the end of 2010, the most recent year with complete
data, the amount of inactive halibut QS was 195,038 units, or 19,374
net lb (8.8 mt), held by 219 unique persons, which is the maximum
number of small entities that could be impacted by this action. The
maximum number of small entities holding inactive sablefish QS that
could be revoked by this action equals 3 unique persons. These small
entities held 9,281 inactive QS units of sablefish, equal to 661 round
lb (0.3 mt) of sablefish.
Even if a small entity's QS and associated IFQ is revoked by this
action, the initial issuee status of the QS recipient is not
extinguished should the QS holder decide to re-enter the IFQ fishery.
There is no projection of the number of persons who will have their
inactive QS revoked but who will re-enter the halibut or sablefish
fishery at some point in the future. At most the number of persons will
not exceed the total number of QS holders that will have QS and
associated IFQ revoked at the end of the 60-day response period.
It is not possible to determine the precise number of the 219 small
entities holding inactive halibut and sablefish QS, as of the end of
2010, that will activate their QS before the end of the 60-day notice
period. Not all activated QS can be expected to result in landed catch
as some entities may choose to hold QS for reasons other than for
fishing. However, the amount of QS retained under such circumstance
would be miniscule compared to the overall amount of QS allocated to
both fisheries.
Small entities that transferred some or all of their halibut or
sablefish IFQ but never harvested any IFQ halibut or IFQ sablefish will
not be subject to revocation of their QS under this final rule.
All inactive QS revoked by NMFS at the end of the 60-day notice
period will be removed from the NMFS QS database. The pounds of annual
IFQ represented by the revoked QS will be distributed among IFQ permit
holders with active QS in an amount proportional to their IFQ
allocation in the years following the revocation.
Based on available data and more general information concerning the
probable economic activity of vessels in the halibut and sablefish IFQ
fisheries, no vessel operation directly regulated by the IFQ Program
could have been used to land more than $4 million in combined gross
receipts (the maximum gross revenue threshold for a small catcher
vessel) in 2005 or 2008, the years analyzed for the Council's 2006 and
2009 selection of a preferred alternative. All entities directly
regulated by this action are considered small entities under the RFA,
and have gross annual revenues less than $4 million. The action will
not have a significant adverse impact on affected small entities
relative to the status quo, no action alternative.
NMFS considered the effects and costs of this action in analysis of
alternatives independent of all entities status as small entities. Each
one of the other significant alternatives considered by the agency and
rejected by the Council also impacted small entities. The Council
reviewed the status quo, no action alternative of not revoking inactive
halibut or sablefish QS, and two action alternatives to withdraw
inactive QS. The two action alternatives were merged into one
alternative when the provision for a lottery to redistribute revoked QS
to eligible persons was rescinded from the preferred alternative. The
lottery provision depended on there being at least 50,000 lbs (22.7 mt)
of inactive QS units available for revocation. Because NMFS and the
Council determined the amount of inactive QS fell below that threshold
for all IPHC regulatory areas, they decided to eliminate this
provision. NMFS is not aware of any additional alternatives to those
considered that would accomplish the objectives of this action and that
would minimize adverse economic impact of this action on small
entities. Compared to the status quo, this action allows holders of
inactive halibut or sablefish QS to voluntarily relinquish their
inactive QS or transfer that QS prior to the end of the 60-day response
period. The objective of this action is to relieve an operational
restriction created by a lack of regulatory authority. The original
impetus for the IFQ Program QS lottery has been superseded by ongoing
changes in the characteristics of the halibut and sablefish fisheries
QS holdings--specifically, the increased transfer of inactive QS and
elimination of latent IFQ.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The guide explains the actions an IFQ permit holder with
inactive QS may voluntarily take to avert NMFS revoking inactive QS
pursuant to this final rule. The preamble to this final rule serves as
the Small Entity Compliance Guide. This action does not require any
additional compliance from small entities that is not described in the
preamble. Copies of the final rule may be obtained from the

[[Page 29563]]

NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

Collection of Information

This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA), which has been approved by the
Office of Management and Budget (OMB) under Control No. 0648-0272.
Public reporting burden for a letter requesting NMFS not revoke IFQ
Program QS is estimated to average 15 minutes per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate, or any other aspect of this data collection, including
suggestions for reducing the burden, 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 a 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 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: May 15, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447.

0
2. In Sec. 679.40, add paragraph (a)(10) to read as follows:

Sec. 679.40 Sablefish and halibut QS.

* * * * *
(a) * * *
(10) NMFS revokes inactive QS if the person holding inactive QS
does not:
(i) Respond in writing to NMFS, within 60 days after NMFS issues a
Notice of Determination of Quota Share Inactivity (Inactive QS Notice)
sent to the address of record as defined at Sec. 679.43(e) of this
part, requesting that the inactive QS not be revoked. Responses must be
received by NMFS no later than the date contained on the Inactive QS
Notice
(ii) For purposes of paragraph (a)(10) of this section, ``respond
in writing'' means write a statement directing NMFS to change the
status of QS to ``active'' and sign and date the statement or complete
the form attached to the Inactive QS Notice and send by U.S. Mail,
courier, hand delivery, or facsimile to the NMFS, Alaska Region as
provided on the Inactive QS Notice and printed on the front side of the
form. The written response must be received by NMFS no later than the
date contained on the Inactive QS Notice or if sent by mail, postmarked
by that date. If delivered by hand or courier, the receiving date is
the date the notice is stamped received by NMFS.
(iii) For purposes of paragraph (a)(10) of this section, the term
``inactive QS'' means halibut QS or sablefish QS, held by a person who
received an initial allocation of halibut QS or sablefish QS and has
not taken any of the following actions:
(A) Transferred any halibut QS or sablefish QS pursuant to Sec.
679.41;
(B) Transferred any halibut IFQ or sablefish IFQ pursuant to Sec.
679.41;
(C) Landed any halibut authorized by IFQ halibut permit(s) issued
to that person; or
(D) Landed any sablefish authorized by IFQ sablefish permit(s)
issued to that person.
* * * * *

[FR Doc. 2012-12153 Filed 5-17-12; 8:45 am]
BILLING CODE 3510-22-P