[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Proposed Rules]
[Pages 29955-29961]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12265]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 120509433-2433-01]
RIN 0648-BC00
Fisheries Off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Trawl Rationalization Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed action would delay or revise several portions of
the Pacific Coast Groundfish Fishery Trawl Rationalization Program
(program) regulations. These changes are necessary to enable the
National Marine Fisheries Service (NMFS) to implement new regulations
for the program to comply with a court order requiring NMFS to
reconsider the initial allocation of Pacific whiting (whiting) to the
shorebased Individual Fishing Quota (IFQ) fishery and the at-sea
mothership fishery. The proposed rule would affect the transfer of
Quota Share (QS) and Incidental Bycatch Quota (IBQ) between QS accounts
in the shorebased individual IFQ fishery, and severability in the
mothership fishery, both of which would be delayed until NMFS can
implement any necessary new regulations in those areas required by the
court's order.
DATES: Comments on this proposed rule must be received no later than 5
p.m., local time on June 29, 2012.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2012-0062, by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking 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-2012-
0062 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
the right of that line.
Fax: 206-526-6736; Attn: Ariel Jacobs.
Mail: William W. Stelle, Jr., Regional Administrator,
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070; Attn: Ariel Jacobs.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information. NMFS will accept
anonymous comments (if submitting comments via the Federal e-Rulemaking
portal, enter ``N/A'' in the relevant required fields if you wish to
remain anonymous). Attachments to electronic comments will be accepted
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats
only.
FOR FURTHER INFORMATION CONTACT: Ariel Jacobs, 206-526-4491; (fax) 206-
526-6736; Ariel.Jacobs@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
In January 2011, NMFS implemented the trawl rationalization program
for the Pacific coast groundfish fishery's trawl fleet (see 75 FR
78344; Dec. 15, 2010). The program was adopted through Amendment 20 to
the Pacific Coast Groundfish Fishery Management Plan (FMP) and consists
of an IFQ program for the shorebased trawl fleet (including whiting and
non-whiting fisheries); and cooperative (coop) programs for the at-sea
mothership (MS) and catcher/processor (C/P) trawl fleets (whiting
only). Allocations to the limited entry trawl fleet for certain species
were developed under Amendment 21 to the FMP, also implemented in 2011.
These rules became the subject of litigation, in Pacific Dawn, LLC
v. Bryson, No. C10-4829 TEH (N.D. Cal.). The plaintiffs, fishing vessel
owners and fishing processers represented by the named party, Pacific
Dawn, LLC, challenged several aspects of the rules, but in particular
the initial allocation of whiting QS in the shorebased IFQ and
mothership fisheries. Following a decision on summary judgment that
NMFS had not considered the correct data in setting its initial whiting
allocations, on February 21, 2012, Judge Henderson issued an order
remanding the regulations setting the initial allocation of whiting for
the shorebased IFQ fishery and the at-sea mothership fishery ``for
further consideration'' consistent with the court's December 22, 2011
summary judgment ruling, the Magnuson-Stevens Act (MSA), and all other
governing law. The Order also requires NMFS to implement revised
regulations setting the quota before the 2013 Pacific whiting fishing
season begins on April 1, 2013.
On February 29, 2012, NMFS informed the Pacific Fishery Management
Council (Council) of the order issued in Pacific Dawn, LLC v. Bryson.
NMFS also requested that the Council initiate the reconsideration of
the initial allocations for QS of whiting in the shorebased IFQ fishery
and for whiting catch history assignments in the at-sea mothership
fishery. NMFS requested the Council schedule this issue to be discussed
at its April, June, and September 2012 meetings. NMFS also stated that
a rulemaking was needed to delay or revise portions of the existing
regulations setting these allocations while the Council and NMFS
reconsidered the initial allocation of whiting, and informed the
Council of its intent to publish an Advance Notice of Proposed
Rulemaking (ANPR) on that reconsideration.
At the Council's March 2012 meeting, the Council added
reconsideration of the allocation of whiting to the agenda for its
April, June and September 2012 meetings. At the Council's April
meeting, the Council adopted a range of alternatives for analysis. The
Council will review a draft analysis of the alternatives and select a
preliminary preferred alternative at its June meeting. At its September
meeting, the Council will choose a final preferred alternative and make
a recommendation to NMFS.
NMFS published an ANPR on April 4, 2012 (77 FR 20337) that, among
other things, announced the court's order, the Council meetings that
would be addressing the whiting reconsideration, and NMFS' plan to
publish two rulemakings in response to the court order. These two
rulemakings are referred to as Reconsideration of Allocation of
Whiting, Rules 1 and 2 (RAW 1 and RAW 2, respectively). NMFS is using
emergency action authority under the MSA 305(c)(1) for RAW 1; RAW 2
will go through the standard FMP Council process followed by a proposed
and final rule. The first rulemaking, RAW 1, which is the subject of
this proposed rule, would delay or revise several portions of the
regulations while NMFS and the Council reconsider the initial
allocation of whiting, and until NMFS implements
[[Page 29956]]
any necessary new regulations in response to the court order. The
second rulemaking, RAW 2, would take in to account the Council's
September 2012 recommendation and reconsideration of the dates used for
initial allocation of whiting for the shorebased IFQ and at-sea
mothership fisheries. The proposed rule for RAW 2 is scheduled to
publish in November 2012, and the final rule in March 2013. The RAW 2
rule is scheduled to be effective by April 1, 2013, consistent with the
court order.
Comments on the ANPR
NMFS received four substantive comments on the ANPR that addressed
how delaying the ability to transfer QS and IBQ between QS accounts in
the shorebased IFQ fishery might impact the 2-year period QS holders
have to divest themselves of excess QS (the divestiture period). After
considering these comments, NMFS proposes allowing additional time for
divestiture, such that once QS transfer is allowed, QS participants in
the shoreside IFQ fishery would then have 2 years to divest QS in
excess of the accumulation limit.
As stated above, NMFS is using emergency action authority under MSA
305(c)(1) for RAW 1. Under that authority, NMFS, by delegation from the
Secretary, can implement regulations for an FMP without going through
the Council process where NMFS finds that an emergency involving a
fishery exists. 16 U.S.C. 1855(a). The rules promulgated under such
circumstances must ``address the emergency.'' 16 U.S.C. 1855(c)(1) and
(2). NMFS' internal guidance defining ``an emergency'' is in the
Federal Register. 62 FR 44421; August 21, 1997. This guidance defines
an emergency as a situation that (1) Arose from recent, unforeseen
events, (2) presents a serious conservation problem in the fishery, and
(3) can be addressed through interim emergency regulations for which
the immediate benefits outweigh the value of advance notice, public
comment, and the deliberative consideration of the impacts on
participants to the same extent as would be expected under the formal
rulemaking process.
Here, NMFS finds that an emergency exists that can only be
addressed through this emergency action. Due to the court's order in
Pacific Dawn, several existing provisions of trawl regulations must be
delayed while NMFS and the Council reconsider the initial allocation of
Pacific whiting. Specifically, regulations with an effective date of
September 1, 2012, which would allow catch history assignment
severability from the mothership/catcher-vessel (MS/CV) endorsed
limited entry trawl permit, and other relevant provisions with an
effective date of January 1, 2013, need to be delayed. However, there
is insufficient time to go through the standard FMP Council process
prior to the required effective date of this proposed rule. If NMFS
does not take this action, then NMFS would not be able to implement the
following rulemaking (RAW 2) that is required by the court's order.
Accordingly, NMFS finds an emergency exists that can only be remedied
through this emergency action.
The emergency action authority allows NMFS to delay this and other
regulations related to the reconsideration of allocation of whiting for
180 days, with the possibility for an additional 185 day extension if
there is a public comment period and the Council is concurrently
addressing the reconsideration. NMFS intends to extend the delay of
regulations for the additional 185 days, and relevant regulations may
be further delayed as a part of the RAW 2 rulemaking. The RAW 2
rulemaking will be done through a three-meeting Council process with a
preliminary preferred alternative selected at the June 2012 Council
meeting, and a final preferred alternative selected at the September
Council meeting, followed by the publication of proposed and final
rules. Replacement provisions for the delayed regulations and the
reconsideration will be included in RAW 2. RAW 2 is scheduled to
publish by the beginning of the 2013 fishing season.
This proposed action for RAW 1 would:
(1) Delay the ability to transfer QS and IBQ between QS accounts in
the shorebased IFQ fishery;
(2) Delay the requirement to divest excess quota share amounts for
the shorebased IFQ fishery and the at-sea mothership fishery;
(3) Delay the ability to change MS/CV endorsement and catch history
assignments from one limited entry trawl permit to another;
(4) Modify the issuance provisions for quota pounds (QP) for the
beginning of fishing year 2013 to preserve NMFS' ability to deposit the
appropriate final amounts into IFQ accounts based on any recalculation
of QS allocations. In the meantime, NMFS proposes to deposit into
accounts an interim amount of QP based on the shorebased trawl
allocation, as reduced by the amount of QP for whiting trips for
whiting, and for species caught incidentally in the whiting fishery
(including lingcod, Pacific cod, canary, bocaccio, cowcod, yelloweye,
Pacific ocean perch, widow, English sole, darkblotched, sablefish N. of
36[deg]N lat., yellowtail N. of 40[deg]10' N. lat., shortspine N. of
34[deg]27' N. lat., minor slope rockfish N. of 40[deg]10' N. lat.,
minor slope rockfish S. of 40[deg]10' N. lat., minor shelf rockfish N.
of 40[deg]10' N. lat., minor shelf rockfish S. of 40[deg]10' N. lat.,
and other flatfish). The remainder of the interim QP would be deposited
in accounts at the start of the whiting primary season.
This action also advises the at-sea mothership fishery that the
response to the court order may impact processor obligations and
cooperative (coop) formation if whiting catch history assignments are
recalculated, and announces further details on the process for the
affected public to review and correct, if necessary, their landings and
delivery data through 2010, since this data may be used for
reallocation.
Each of these elements is described in further detail below in this
preamble.
Delay Transfer of QS and IBQ
The trawl rationalization program, as implemented in January 2011,
delayed QS holders' ability to transfer QS and IBQ between QS accounts
in the Shorebased IFQ fishery through December 31, 2012 (i.e., transfer
could begin in 2013). This proposed action would further delay QS
holders' ability to transfer QS and IBQ between QS accounts. This
suspension of QS transfers would be a temporary action, but is
necessary to avoid complications which would occur if QS permit owners
in the shorebased IFQ fishery were allowed to transfer QS percentages
prior to the whiting allocation reconsideration. Due to the complexity
of online transactions occurring within the fishery, NMFS has
determined that it is necessary to suspend QS transfers for all
species, not just those directly impacted by the reconsideration. If QS
permit owners were allowed to transfer QS percentages of whiting and
incidentally caught species prior to the completion of the
reconsideration, then it would be difficult, if not impossible, to
track QS in order to resolve discrepancies or changes to QS
allocations. Additionally, if QS transfers were allowed before the
completion of the reconsideration of whiting allocations, QS permit
owners would be transferring QS amounts that potentially could increase
or decrease after the reconsideration, possibly undermining business
relationships and confusing buyers and sellers.
Also, if whiting QS is reallocated, depending on the formula used,
there may be new QS permit owners, while some current QS permit owners
who received initial whiting QS allocations
[[Page 29957]]
may not receive any under a recalculation. Moreover, because QS units
do not have a unique identifier, QS loses its identity following a
transfer; therefore tracking QS through transfers is extremely
difficult. This rule would re-write Sec. 660.140(d)(3)(ii)(B),
paragraph (2) to state that QS or IBQ cannot be transferred, except
under U.S. court order or authorization, and as approved by NMFS.
Additionally, the rule would state that QS and IBQ cannot be
transferred to another QS permit owner, except under U.S. court order
or authorization and as approved by NMFS.
Delay the Requirement To Divest Excess QS in the Shorebased IFQ Fishery
and the At-sea Mothership Fishery
Delayed implementation of regulations that allow for the transfer
of QS could impact divestiture for those QS permit owners with QS over
the accumulation limits (also called QS control limits) in the
shorebased IFQ fishery. The current regulations give QS permit owners
with excess QS two years after QS transfer begins to divest their
excess QS amounts. In other words, during 2013 and 2014, QS permit
owners with QS over the accumulation limits specified at Sec.
660.140(d)(4)(i) must sell their excess QS by the end of 2014. At the
start of 2015, any excess QS owned by QS permit owners would be
permanently revoked by NMFS and redistributed to other QS permit owners
in proportion to their current QS and IBQ holdings. Delaying QS
transfers would shorten the divestiture period because QS could not be
transferred during the reconsideration.
After considering informal public comments at the April 2012
Council meeting that the QS permit owners should retain a full two-year
period for divestiture, NMFS proposes to revise the regulations at
Sec. 660.140(d)(4)(v) to state that any person that has an initial
allocation of QS or IBQ in excess of the accumulation limits will be
allowed to receive that allocation, but must divest themselves of the
excess QS or IBQ during the first two years once QS transfers are
allowed. Maintaining the full two years for divestiture would provide
QS permit owners with sufficient time to plan and arrange sales of
excess QS, as originally recommended by the Council for this provision
of the trawl rationalization program.
Divestiture for the at-sea mothership sector will be addressed as
necessary in RAW 2, because MS/CV endorsed limited entry trawl permit
holders must divest their excess QS by December 31, 2012. Currently no
member of the mothership sector has QS in excess of the accumulation
limits. However, some members of this sector may exceed the
accumulation limits following the reconsideration. Thus, NMFS will
consider through the Council process for RAW 2 whether it is necessary
to reinstate a divestiture period based on the reconsideration.
Delay the Ability To Change MS/CV Endorsement and Catch History
Assignment
This proposed action would delay the ability of limited entry trawl
permit owners in the mothership sector to transfer MS/CV endorsements
and catch history assignments (CHA) between limited entry trawl
permits. The rationale for this action is similar to that for delaying
QS transfers in the shorebased IFQ sector; if permit owners are allowed
to transfer ownership of catch history assignments before the
reconsideration takes place, then it will be difficult for NMFS to
track changes to the initial allocations of whiting and other
incidentally caught species. Delaying CHA transfers is necessary
because the values of CHA could change following the reconsideration,
and it's possible that some CHA allocations could be reduced to zero.
Accordingly, this rule would revise Sec. 660.150 (g)(2)(iv)(B) and (C)
to change MS/CV endorsement registration in order to temporarily delay
severability, except in the cases of permit combination.
As described earlier in the preamble, NMFS will not suspend
transfer of the limited entry trawl permit between permit owners (i.e.,
changes in permit ownership) or between vessels (i.e., change in permit
registered to vessel). If NMFS reissues catch history assignments on
MS/CV-endorsed limited entry trawl permits as a result of the
reconsideration, NMFS will issue those permits to the permit owner of
record with NMFS at the time of reissuance. Any person who is
considering purchasing or otherwise obtaining ownership of an MS/CV
endorsed permit should be aware that NMFS may change (increase or
decrease) the current whiting catch history assignment given on the
permit as a result of the reconsideration of the allocation whiting.
Deposit Interim QP Based on the Shorebased Trawl Allocation as Reduced
by the Amount of QP for Whiting Trips for Whiting, and Species Caught
Incidentally in the Whiting Fishery
NMFS proposes to add regulatory language to allow it to deposit
into QS accounts, on or about January 1, 2013, interim QP based on the
shorebased trawl allocation as reduced by the amount of QP for whiting
trips for whiting, and species caught incidentally in the whiting
fishery. This proposal would enable the agency to allocate the
appropriate final amounts based on any recalculation of QS allocations.
Species caught incidentally in the whiting fishery (during whiting
directed trips) include lingcod, Pacific cod, canary, bocaccio, cowcod,
yelloweye, Pacific ocean perch, widow, English sole, darkblotched,
sablefish N. of 36[deg]N lat., yellowtail N. of 40[deg]10' N. lat.,
shortspine N. of 34[deg]27' N. lat., minor slope rockfish N. of
40[deg]10' N. lat., minor slope rockfish S. of 40[deg]10' N. lat.,
minor shelf rockfish N. of 40[deg]10' N. lat., minor shelf rockfish S.
of 40[deg]10' N. lat., and other flatfish. These are the species for
which the initial issuance allocation percentages for the whiting
sector were greater than zero, as listed in the table at Sec.
660.140(d) (8)(iv)(A)(10), or species for which the initial allocation
is determined through the biennial specifications process (Sec.
660.140(d) (8)(iv)(A)(10)). In other words, NMFS would not deposit all
of the QP to QS accounts at the beginning of the year regardless of
whether the final harvest specifications for 2013 are effective. NMFS
will only deposit sufficient whiting QP for non-whiting directed trips;
all other QP will be issued following the reconsideration and
recalculation of initial allocations of whiting and associated,
incidentally caught species. Therefore, NMFS proposes to add temporary
regulations to Sec. 660.140(d)(1)(ii)(A) and (B) to specify that NMFS
will hold back QP at the start of 2013.
Potential Impact on Processor Obligations and Coop Formation
NMFS advises the at-sea mothership fishery that the response to the
reconsideration may impact processor obligations and coop formation if
whiting catch history assignments are recalculated. NMFS intends to
announce any changes to the amount of catch history assignments
associated with MS/CV-endorsed limited entry trawl permits by April 1,
2013. The mothership sector has until March 31, 2013, to submit their
coop permit applications to NMFS for that fishing year. The coop permit
application includes a list of the catch history amounts associated
with specific MS/CV-endorsed limited entry permits and which MS permit
those amounts are obligated to. In addition, MS/CV-endorsed permit
owners must obligate their associated catch history assignment to an MS
permit by
[[Page 29958]]
September 1 of the prior year. Because both of these requirements may
happen before NMFS has made its determination on the 2013 catch history
assignments associated with MS/CV-endorsed permits, participants in the
mothership fishery should be aware that this proposal may potentially
impact their processor obligations, coop formation, and coop permit
application. NMFS does not anticipate a need for regulatory changes to
address these potential impacts and will work with any MS coop permit
applicants if there are changes in catch history assignments from that
noted in the 2013 coop permit application. For example, in the initial
administrative determination for any 2013 MS coop permit application,
NMFS could notify the coop manager of any changes in catch history
assignments for MS/CV-endorsed permits associated with that coop. NMFS
solicits public comment on this approach and any potential impacts on
processor obligations or MS coop formation.
Process to Review, and if Necessary, Correct Data
Potential participants of the trawl rationalization program should
be aware that NMFS intends to continue to use landings data from the
Pacific States Marine Fisheries Commission's PacFIN database and NMFS'
Northwest Fisheries Science Center's Pacific whiting observer data from
NORPAC (the North Pacific database) in reconsidering QS distribution
for the trawl rationalization program, consistent with the approach
used in 2009-2010. Landings data from state fish tickets, as provided
by the states to the PacFIN database, would be used to determine
allocations of IFQ QS for the shore-based whiting and nonwhiting
harvesters and for the shore-based whiting processors. Landings data
from the NORPAC database would be used to determine allocations of at-
sea QS for the whiting mothership catcher vessels.
NMFS intends to follow the process it followed in 2009-2010,
working with the PacFIN and NORPAC databases, to reevaluate the whiting
allocations. Accordingly, NMFS will ``freeze'' the databases for the
purposes of initial allocation on the date the proposed rule for RAW 2
publishes in the Federal Register to allow NMFS time to compile the
dataset and cross check the data for any errors. ``Freezing'' the
databases means that NMFS will extract a snapshot of the databases as
of the proposed rule publication date, and use those data to allocate
QS. ``Freezing'' the databases is necessary to hold them constant for
use during qualification and initial issuance of the trawl
rationalization program, and to form an administrative record of the
database at a given point in time. Following the ``freezing'' of the
databases, any corrections to the ``frozen'' database would be made
with NMFS through the processes set forth in future trawl
rationalization rules. After NMFS extracts a copy of the databases, the
PacFIN and NORPAC databases will continue to exist and be updated
through their normal processes, but such updates may not be used for
reconsidered allocations of QS.
If potential participants in the trawl rationalization program have
concerns over the accuracy of their data through 2010 in the PacFIN
database, they should contact the state in which they landed those fish
to correct any errors. Any revisions to an entity's fish tickets would
have to be approved by the state in order to be accepted. State
contacts are as follows: (1) Washington--Carol Turcotte (360-902-2253,
Carol.Turcotte@dfw.wa.gov); (2) Oregon--Michelle Grooms (503-947-6247,
Michelle.L.Grooms@state.or.us); and (3) California--Jana Robertson
(562-342-7126, jroberts@dfg.ca.gov). For concerns over the accuracy of
NORPAC data, contact Neil Riley (206-861-7607, neil.riley@noaa.gov).
NMFS urges potential QS owners to go directly to the source where
fisheries data is entered in the database to get it corrected before
NMFS extracts the data for reconsideration of QS allocation.
For limited entry permit or permit combination data, check NMFS Web
site at http://www.nwr.noaa.gov/GroundfishHalibut/Groundfish-Permits/index.cfm or contact Kevin Ford (206-526-6115, kevin.ford@noaa.gov).
NMFS also considered whether to allow limited entry permit
transfers (i.e., changes in permit ownership) for all limited entry
trawl endorsed permits, except for those with a catcher/processor
endorsement, for a period of time during the reconsideration. This
allowance would simplify reissuance of QS permits in the shorebased IFQ
fishery or catch history assignments on MS/CV-endorsed limited entry
trawl permits in the at-sea mothership fishery. After assessing this
step, NMFS has determined that it is not necessary because RAW 2 has no
planned application process. The initial allocation had a lengthy
application process that necessitated not allowing limited entry permit
(LEP) transfers while NMFS reviewed applications. For this time, NMFS
will issue an initial administrative determination (IAD), but not an
application. Accordingly, there should not be a need to freeze LEP
transfers. If NMFS reissues QS permits and/or catch history assignments
on MS/CV-endorsed limited entry trawl permits, NMFS proposes that those
permits be issued to the permit owner of record with NMFS at the time
of reissuance. These details will be developed as part of the RAW 2
rulemaking.
Classification
Pursuant to section 305(c)(1) of the MSA, the NMFS Assistant
Administrator has determined that this proposed rule is consistent with
the Pacific Coast Groundfish FMP, other provisions of the MSA, and
other applicable law, subject to further consideration after public
comment.
The Council prepared a final environmental impact statement (EIS)
for Amendment 20 and Amendment 21 to the Pacific Coast Groundfish FMP;
a notice of availability for each of these final EISs was published on
June 25, 2010 (75 FR 36386). The Amendment 20 and 21 EISs and the draft
EA are available on the Council's Web site at http://www.pcouncil.org/
or on NMFS' Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Trawl-Program/index.cfm. The regulatory
changes in this proposed rule were categorically excluded from the
requirement to prepare a NEPA analysis.
This proposed rule has preliminarily been determined to be not
significant for purposes of Executive Order 12866.
NMFS prepared an initial regulatory flexibility analysis (IRFA), as
required by section 603 of the Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq). The IRFA describes the economic impact this
proposed rule, if adopted, would have on small entities. A description
of the action, why it is being considered, and the legal basis for this
action are contained at the beginning of this section in the preamble
and in the SUMMARY section of the preamble. A copy of the IRFA is
available from NMFS (see ADDRESSES).
The Small Business Administration has established size criteria to
define small entities under the RFA for all major industry sectors in
the US, including fish harvesting and fish processing businesses. Under
these criteria, a business involved in fish harvesting is a small
entity if it is independently owned and operated and not dominant in
its field of operation (including its affiliates), and if it has
combined annual receipts not in excess of $4.0 million for all its
affiliated operations worldwide. A seafood processor is a small entity
if it is independently owned and operated, not
[[Page 29959]]
dominant in its field of operation, and employs 500 or fewer persons on
a full-time, part-time, temporary, or other basis, at all its
affiliated operations worldwide. A business involved in both the
harvesting and processing of seafood products is a small entity if it
meets the $4.0 million criterion for fish harvesting operations. A
wholesale business servicing the fishing industry is a small entity if
it employs 100 or fewer persons on a full-time, part-time, temporary,
or other basis, at all its affiliated operations worldwide. For marinas
and charter/party boats, a small entity is one with annual receipts not
in excess of $7.0 million.
These regulations directly affect holders of QS and CHA, which
include both large and small entities. Quota shares were initially
allocated to 166 limited entry trawl permit holders (permits held by
catcher processors did not receive QS, while one limited entry trawl
permit did not apply to receive QS) and to 10 whiting processors.
Thirty-six limited entry permits also have MS/CV endorsements and catch
history assignments. Because many of these permits were owned by the
same entity, these initial allocations were consolidated into 138 quota
share permits/accounts. Of the 166 limited entry permits, 25 limited
entry trawl permits are either owned or closely associated with a
``large'' shorebased processing company or with a non-profit
organization who considers itself a ''large'' organization. Nine other
permit owners indicated that they were ``large'' companies. Almost all
of these large companies are associated with the shorebased and
mothership whiting fisheries. The remaining 133 limited entry trawl
permits are likely held by ``small'' companies. Of the 10 shorebased
processing companies (whiting first receivers/processors) that received
whiting QS, three are ``small'' entities.
NMFS is postponing the ability of QS permit owners to trade QS, as
well as ability of MS/CV to trade their endorsements and catch history
assignments separately from their limited entry permits. NMFS proposes
this delay for QS species/species groups, because for many affected
parties, their QS allocations (especially for bycatch species) are
composed of whiting-trip calculations and non-whiting trip
calculations. Currently, QS and IBQ trading has been prohibited for all
species/species categories until January 1, 2013. By postponing these
activities while NMFS and the Council reconsider the initial whiting
allocations and implement any changes that result, NMFS seeks to
minimize confusion and disruption in the fishery from trading quota
shares that have not yet been firmly established by regulation. For
example, as discussed above, if QS trading is not delayed, QS permit
owners would be transferring QS amounts that potentially could change
(increase or decrease) after the reconsideration. This situation would
undermine business relationships and create confusion among buyers and
sellers. As discussed above, RAW2 will implement any revised
allocations of QS and MS/CV history assignments. RAW2 is expected to be
effective by April 1, 2013 in time for the first whiting season opener
off California, and before the major June 15 coastwide season opener.
Similarly, NMFS also proposes to delay MS/CV's ability to transfer
endorsement and associated catch history assignments from one limited
entry trawl permit to another. However, the MS/CV's retain the ability
to sell or trade a limited entry permit with the endorsement and catch
history. All other MS/CV regulations remain unchanged. NMFS intends to
announce any changes to the amount of catch history assignments
associated with MS/CV-endorsed limited entry trawl permits by April 1,
2013, prior to the May 15 start date for the whiting mothership
fishery.
Note that NMFS is not postponing fishing. To accommodate non-
whiting fisheries that begin at the beginning of the year, NMFS will
provide QP to QS holders, but hold back sufficient QPs for whiting and
all other incidentally caught species from the annual allocation of QPs
to QS accounts made on or about January 1, 2013 to allocate the
appropriate final amounts based on any recalculation of the whiting QS
allocations. The proposed process of ``holding'' back sufficient QP is
similar to the current process of starting the year with an interim low
estimate of the annual whiting trawl allocation and then in the spring
of each year adjusting the QP in the QS accounts with any additional
QP, based on the final whiting trawl allocation. The final whiting
trawl allocation is typically not established until early May, to
incorporate the latest stock assessment information, review tribal
allocation requests, and receive Pacific Fishery Management Council
recommendations. In 2012, this process was modified to include the
processes of the U.S.-Canada Pacific Whiting Treaty.
These delays will be temporary in nature and will benefit both
small and large entities. NMFS proposes these delays to help smooth the
transition to any changes in Pacific whiting allocations, and to reduce
uncertainty for existing and potential new holders of these
allocations.
No Federal rules have been identified that duplicate, overlap, or
conflict with the alternatives. Public comment is hereby solicited,
identifying such rules. A copy of this analysis is available from NMFS
(see ADDRESSES).
NMFS issued Biological Opinions under the Endangered Species Act
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September
27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects
of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget
Sound, Snake River spring/summer, Snake River fall, upper Columbia
River spring, lower Columbia River, upper Willamette River, Sacramento
River winter, Central Valley spring, California coastal), coho salmon
(Central California coastal, southern Oregon/northern California
coastal), chum salmon (Hood Canal summer, Columbia River), sockeye
salmon (Snake River, Ozette Lake), and steelhead (upper, middle and
lower Columbia River, Snake River Basin, upper Willamette River,
central California coast, California Central Valley, south/central
California, northern California, southern California). These biological
opinions have concluded that implementing the FMP for the Pacific Coast
groundfish fishery is not expected to jeopardize the continued
existence of any endangered or threatened species under the
jurisdiction of NMFS, or result in the destruction or adverse
modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006,
concluding that neither the higher observed bycatch of Chinook in the
2005 whiting fishery nor new data regarding salmon bycatch in the
groundfish bottom trawl fishery required a reconsideration of its prior
``no jeopardy'' conclusion. NMFS also reaffirmed its prior
determination that implementation of the Groundfish PCGFMP is not
likely to jeopardize the continued existence of any of the affected
ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as
threatened under the ESA. The 1999 biological opinion concluded that
the bycatch of salmonids in the Pacific whiting fishery were almost
entirely Chinook salmon, with little or no bycatch of coho, chum,
sockeye, and steelhead.
On February 9, 2012, NMFS Protected Resources Division issued a
Biological Opinion (BO) pursuant to section 7(a)(2) of the Endangered
Species Act (ESA) on
[[Page 29960]]
the effects of the operation of the Pacific coast groundfish fishery in
2012. In this Opinion, NMFS concluded that the operation of the
groundfish fishery is not likely to jeopardize the continued existence
of green sturgeon (Acipenser medirostris), eulachon (Thaleichthys
pacificus), humpback whales (Megaptera novaeangliae), Steller sea lions
(Eumetopias jubatus), and leatherback sea turtles (Dennochelys
coriacea). NMFS also concluded that the operation of the groundfish
fishery is not likely to destroy or adversely modify designated
critical habitat of green sturgeon or leatherback sea turtles.
Furthermore, NMFS concluded that the operation of the groundfish
fishery may affect, but is not likely to adversely affect the following
species and designated critical habitat: Sei whales (Balaenoptera
borealis); North Pacific Right whales (Eubalaena japonica); Blue whales
(Balaenoptera musculus); Fin whales (Balaenoptera physalus); Sperm
whales (Physter macrocephalus); Southern Resident killer whales
(Orcinus orca); Guadalupe fur seals (Arctocephalus townsendi); Green
sea turtles (Chelonia mydas); Olive ridley sea turtles (Lepidochelys
olivacea); Loggerhead sea turtles (Carretta carretta); critical habitat
of Southern Resident killer whales; and critical habitat of Steller sea
lions. This proposed rule does not modify any activities that would
affect listed species; and thus the February 9, 2012 BO conclusions are
applicable.
On August 25, 2011, NMFS Sustainable Fisheries Division initiated
consultation with U.S. Fish and Wildlife Service (USFWS) pursuant to
section 7(a)(2) of the Endangered Species Act (ESA) on the effects of
the operation of the Pacific coast groundfish fishery. The
Biological Assessment (BA) was revised and re-submitted to USFWS on
January 17, 2012. The BA concludes that the continued operation of the
Pacific Coast Groundfish Fishery is likely to adversely affect short-
tailed albatross; however, the level of take is not expected to reduce
appreciably the likelihood of survival or significantly affect recovery
of the species. The BA preliminarily concludes that continued operation
of the Pacific Coast Groundfish Fishery is not likely to adversely
affect California least terns, marbled murrelets, bull trout, and
Northern or Southern sea otters. USFWS formally responded with a letter
dated March 29, 2012 and advised NMFS that formal consultation has been
initiated. Marine Mammal Protection Act (MMPA) impacts resulting from
fishing activities proposed in this final rule are discussed in the
FEIS for the 2011-12 groundfish fishery specifications and management
measures. As discussed above, NMFS issued a biological opinion
addressing impacts to ESA listed marine mammals. NMFS is currently
working on the process leading to any necessary authorization of
incidental taking under MMPA section 101(a)(5)(E).
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian fisheries.
Dated: May 15, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 660 is proposed
to be amended as follows:
PART 660--FISHERIES OFF WEST COAST STATES
1. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16
U.S.C. 7001 et seq.
2. In Sec. 660.140, revise paragraphs (d)(1)(ii)(A)(1) and (2),
(d)(1)(ii)(B)(1) and (2), (d)(3)(ii)(B)(2) and (d)(4)(v) to read as
follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(d) * * *
(1) * * *
(ii) * * *
(A) * * *
(1) In years where the groundfish harvest specifications are known
by January 1, deposits to QS accounts for IFQ species will be made on
or about January 1. For 2013, NMFS will issue QP in two parts. On or
about January 1, 2013, NMFS will deposit QP based on the shorebased
trawl allocation as reduced by the amount of QP for whiting trips as
specified at paragraph (d)(8)(iv)(A)(10) of this section for the
initial issuance allocations of QS between whiting and non-whiting
trips. In the spring of 2013, after NMFS has made a determination on
the QS for QS permit owners, NMFS will deposit additional QP to the QS
account, as appropriate.
(2) In years where the groundfish harvest specifications are not
known by January 1, NMFS will issue QP in two parts. On or about
January 1, NMFS will deposit QP based on the shorebased trawl
allocation multiplied by the lower end of the range of potential
harvest specifications for that year. For 2013, that amount will be
further reduced by the amount of QP for whiting trips as specified at
paragraph (d)(8)(iv)(A)(10) of this section for the initial issuance
allocations of QS between whiting and non-whiting trips. After the
final harvest specifications are established later in the year, NMFS
will deposit additional QP to the QS account. For 2013, this will occur
in the spring after NMFS has made a determination on the QS for QS
permit owners.
(B) * * *
(1) In years where the Pacific whiting harvest specification is
known by January 1, deposits to QS accounts for Pacific whiting will be
made on or about January 1. For 2013, NMFS will issue QP in two parts.
On or about January 1, 2013, NMFS will deposit QP based on the
shorebased trawl allocation as reduced by the amount of QP for whiting
trips as specified at paragraph (d)(8)(iv)(A)(10) of this section for
the initial issuance allocations of QS between whiting and non-whiting
trips. In the spring of 2013, after NMFS has made a determination on
the QS for QS permit owners, NMFS will deposit additional QP to the QS
account, as appropriate.
(2) In years where the Pacific whiting harvest specification is not
known by January 1, NMFS will issue Pacific whiting QP in two parts. On
or about January 1, NMFS will deposit Pacific whiting QP based on the
shorebased trawl allocation multiplied by the lower end of the range of
potential harvest specifications for Pacific whiting for that year. For
2013, that amount will be further reduced by the amount of QP for
whiting trips as specified at paragraph (d)(8)(iv)(A)(10) of this
section for the initial issuance allocations of QS between whiting and
non-whiting trips. After the final Pacific whiting harvest
specifications are established later in the year, NMFS will deposit
additional QP to QS accounts. For 2013, this will occur in the spring
after NMFS has made a determination on the QS for QS permit owners.
* * * * *
(3) * * *
(ii) * * *
(B) * * *
(2) Transfer of QS or IBQ between QS accounts. QS or IBQ cannot be
transferred to another QS permit owner, except under U.S. court order
or authorization and as approved by NMFS. QS or IBQ may not be
transferred to a vessel account.
* * * * *
(4) * * *
(v) Divestiture. Accumulation limits will be calculated by first
calculating the aggregate non-whiting QS limit and then the individual
species QS or IBQ control limits. For QS permit owners
[[Page 29961]]
(including any person who has ownership interest in the owner named on
the permit) that are found to exceed the accumulation limits during the
initial issuance of QS permits, an adjustment period will be provided
after which they will have to completely divest their QS or IBQ in
excess of the accumulation limits. QS or IBQ will be issued for amounts
in excess of accumulation limits only for owners of limited entry
permits as of November 8, 2008, if such ownership has been registered
with NMFS by November 30, 2008. The owner of any permit acquired after
November 8, 2008, or if acquired earlier, not registered with NMFS by
November 30, 2008, will only be eligible to receive an initial
allocation for that permit of those QS or IBQ that are within the
accumulation limits; any QS or IBQ in excess of the accumulation limits
will be redistributed to the remainder of the initial recipients of QS
or IBQ in proportion to each recipient's initial allocation of QS or
IBQ for each species. Any person that qualifies for an initial
allocation of QS or IBQ in excess of the accumulation limits will be
allowed to receive that allocation, but must divest themselves of the
excess QS or IBQ during the first two years once QS transfers are
allowed (the divestiture period). Holders of QS or IBQ in excess of the
control limits may receive and use the QP or IBQ pounds associated with
that excess, up to the time their divestiture is completed. Once the
divestiture period is completed, any QS or IBQ held by a person
(including any person who has ownership interest in the owner named on
the permit) in excess of the accumulation limits will be revoked and
redistributed to the remainder of the QS or IBQ owners in proportion to
the QS or IBQ holdings in the immediately following year. No
compensation will be due for any revoked shares.
* * * * *
3. In Sec. 660.150,
a. Revise paragraph (g)(2)(iv)(B);
b. Remove and reserve paragraph (g)(2)(iv)(C) to read as follows:
Sec. 660.150 Mothership (MS) Coop Program.
* * * * *
(g) * * *
(2) * * *
(iv) * * *
(B) Application. NMFS is not accepting applications for a change in
MS/CV endorsement registration at this time.
(C) [Reserved]
* * * * *
[FR Doc. 2012-12265 Filed 5-18-12; 8:45 am]
BILLING CODE 3510-22-P