[Federal Register Volume 78, Number 12 (Thursday, January 17, 2013)]
[Rules and Regulations]
[Pages 3848-3850]
From the Federal Register Online via the Government Publishing 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; [email protected].
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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