[Federal Register Volume 78, Number 12 (Thursday, January 17, 2013)]
[Rules and Regulations]
[Pages 3848-3850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00936]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120312181-2279-01]
RIN 0648-BC00


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Trawl Rationalization Program; Emergency Rule Extension

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

ACTION: Temporary rule; emergency action extended.

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SUMMARY: NMFS is extending the temporary rule that delayed or revised 
several portions of the Pacific Coast Groundfish Fishery Trawl 
Rationalization Program (program) regulations. This emergency rule 
extension is necessary to enable the

[[Page 3849]]

National Marine Fisheries Service (NMFS) 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. This extension of the temporary, 
emergency rule affects the transfer of Quota Share (QS) and Individual 
Bycatch Quota (IBQ) between QS accounts in the shorebased IFQ fishery, 
and severability in the mothership fishery, both of which will be 
delayed until NMFS can complete reconsideration of whiting allocations 
in the shorebased IFQ fishery and the at-sea mothership fishery.

DATES: The expiration date of the temporary rule published August 1, 
2012 (77 FR 45508) is extended from January 28, 2013, through July 22, 
2013.

FOR FURTHER INFORMATION CONTACT: Ariel Jacobs, 206-526-4491; (fax) 206-
526-6736; Ariel.Jacobs@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Background

    This action extends the Reconsideration of Allocation of Whiting, 
Delay of Relevant Regulations Rule, referred to as ``RAW 1''. RAW 1 
delayed or revised several provisions of the Pacific coast trawl 
rationalization program. Background on this rule was provided in the 
proposed rule, published on May 21, 2012 (77 FR 29955), and in the 
final rule, published on August 1, 2012 (77 FR 45508), and is not 
repeated here. This action would extend the effectiveness of the final 
rule, which:
    (1) Delayed the ability to transfer QS and IBQ between QS accounts 
in the shorebased IFQ fishery in order to avoid complications that 
would occur if QS permit owners in the shorebased IFQ fishery were 
allowed to transfer QS percentages prior to completion of the whiting 
allocation reconsideration;
    (2) Delayed the requirement to divest excess QS amounts for the 
shorebased IFQ fishery and the at-sea mothership fishery so that QS 
permit owners would have sufficient time to plan and arrange sales of 
excess QS, as originally recommended by the Council for this provision 
of the trawl rationalization program;
    (3) Delayed the ability to change mothership catcher vessel (MS/CV) 
endorsement and catch history assignments from one limited entry trawl 
permit to another in order to avoid complications that would have 
occurred had permit owners been allowed to transfer ownership of catch 
history assignments prior to completion of the reconsideration; and
    (4) Modified 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 QS accounts based on any recalculation 
of QS allocations. In January 2013, NMFS deposited into accounts an 
interim amount of QP based on the shorebased trawl allocation 
multiplied by the lower end of the range of potential harvest 
specifications for 2013, as reduced by the amount of QP for whiting 
trips associated with the whiting QS issued based on the limited entry 
permit history that qualified for an initial allocation, 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 will be deposited in 
QS accounts at the start of the whiting primary season.
    NMFS is also advising 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. NMFS will announce a process for correcting data, if 
necessary, following the public comment period for the RAW 2 proposed 
rule (78 FR 72, January 2, 2013).

Potential Impact on Processor Obligations and Coop Formation

    NMFS advises the at-sea mothership fishery that the response to the 
court-ordered reconsideration may impact processor obligations and coop 
formation if whiting catch history assignments are recalculated. NMFS 
will 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. Because coop permit applications may be 
submitted before NMFS has made its final 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 will notify the coop 
manager of any changes in catch history assignments for MS/CV-endorsed 
permits associated with that coop.
    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 the 
reallocation rule likely will have 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 any revised reallocation, NMFS likely will issue an 
initial administrative determination (IAD), but not an application; 
these details will be developed as part of the reallocation rulemaking, 
if necessary. 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 likely will issue 
those permits or catch history assignments to the QS account owner of 
record with NMFS at the time of reissuance. Because the RAW 2 rule (78 
FR 72, January 2, 2013) is not proposing any reallocation, it did not 
include these additional details.

Classification

    This emergency rule extension is published under the authority of 
the Magnuson-Stevens Act.
    OMB has determined that this action is not significant for the 
purposes of Executive Order 12866.
    This extension to an emergency/interim rule is exempt from the 
procedures of the Regulatory Flexibility Act because this extension 
rule is issued without opportunity for prior notice and opportunity for 
public comment.

[[Page 3850]]

    The Assistant Administrator finds it is unnecessary and contrary to 
the public interest to provide for prior notice and an opportunity for 
public comment on this emergency rule extension. In the initial 
emergency rule published on May 21, 2012 (77 FR 29955), NMFS requested, 
and subsequently received, comments on the rulemaking. Therefore, the 
agency has the authority to extend the emergency action for up to 186 
days beyond January 28, 2013. This would extend the emergency action to 
through August 2, 2013.
    The measures of this emergency rule extension remain unchanged from 
the measures contained in the initial emergency rule that delayed or 
revised portions of the trawl program regulations pending completion of 
the reconsideration of the allocation of whiting for the shoreside IFQ 
and mothership sectors of the program. This extension must be in place 
during the 2013 whiting fishing season because the reconsideration is 
still underway and failing to extend the emergency rule would be 
counter to the NMFS and the Council's efforts to manage the fishery 
until the reconsideration has been completed. The emergency action 
authority under 305(c)(3) allows NMFS to extend the provisions of the 
emergency action rule if there was a public comment period and the 
Council is currently addressing the reconsideration. NMFS has met both 
of these provisions.
    NMFS solicited public comment during the 30-day comment period on 
the measures contained in the initial emergency action and extended by 
this action. The comments received were considered and were addressed 
in the preamble of the emergency rule. Therefore, for the reasons 
outlined above, the Assistant Administrator finds it is unnecessary and 
contrary to the public interest to provide any additional notice and 
opportunity for public comment under 5 U.S.C. 553(b)(B) prior to 
publishing the emergency rule extension. Furthermore, NMFS finds good 
cause to waive the 30-day delay in effectiveness because any lapse in 
effectiveness of this temporary rule could potentially jeopardize NMFS' 
ability to comply with the Court order in Pacific Dawn.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this emergency rule extension. 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 Fishery Management Plan (PCGFMP) 
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 
implementation of the PCGFMP 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 December 7, 2012, NMFS completed a biological opinion concluding 
that the groundfish fishery is not likely to jeopardize non-salmonid 
marine species including listed eulachon, green sturgeon, humpback 
whales, Steller sea lions, and leatherback sea turtles. The opinion 
also concludes that the fishery is not likely to adversely modify 
critical habitat for green sturgeon and leatherback sea turtles. An 
analysis included in the same document as the opinion concludes that 
the fishery is not likely to adversely affect green sea turtles, olive 
ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific 
right whales, blue whales, fin whales, sperm whales, Southern Resident 
killer whales, Guadalupe fur seals, or the critical habitat for Steller 
sea lions.
    As Steller sea lions and humpback whales are also protected under 
the Marine Mammal Protection Act, incidental take of these species from 
the groundfish fishery must be addressed under MMPA section 
101(a)(5)(E). On February 27, 2012, NMFS published notice that the 
incidental taking of Steller sea lions in the West Coast groundfish 
fisheries is addressed in NMFS' December 29, 2010 Negligible Impact 
Determination (NID) and this fishery has been added to the list of 
fisheries authorized to take Steller sea lions (77 FR 11493, Feb. 27, 
2012). NMFS is currently developing MMPA authorization for the 
incidental take of humpback whales in the fishery.
    On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) 
issued a biological opinion concluding that the groundfish fishery will 
not jeopardize the continued existence of the short-tailed albatross. 
The FWS also concurred that the fishery is not likely to adversely 
affect the marbled murrelet, California least tern, southern sea otter, 
bull trout, nor bull trout critical habitat.

    Dated: January 11, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-00936 Filed 1-16-13; 8:45 am]
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