[Federal Register Volume 72, Number 222 (Monday, November 19, 2007)]
[Rules and Regulations]
[Pages 64952-64954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5732]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

RIN 0648-AV57
[Docket No. 070510101-7101-01]


Fisheries off West Coast States; Pacific Coast Groundfish 
Fishery; 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 to prohibit vessels 
without sector-specific participation history in the directed Pacific 
whiting (whiting) fishery off the West Coast from participating in the 
whiting fishery. This emergency rule extension is necessary to prevent 
serious conservation and management problems that could be caused by 
new entrants and to maintain status quo participation while the Pacific 
Fishery Management Council (Council) completes its efforts to develop a 
vessel license limitation program through an amendment to the Pacific 
Coast Groundfish Fishery Management Plan (FMP.)

DATES: Effective from November 14, 2007, through May 13, 2008.

ADDRESSES: Copies of the Finding of No Significant Impact (FONSI) and 
its supporting Environmental Assessment (EA) for the emergency rule are 
available from Frank D. Lockhart, Assistant Regional Administrator for 
Sustainable Fisheries, Northwest Region, NMFS 7600 Sand Point Way, NE, 
Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Frank Lockhart (Northwest Region, 
NMFS,) phone: 206-526-6142; fax: 206-526-6736; and email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    The temporary rule also is accessible via the Internet at the 
Office of the Federal Register's website at http://

[[Page 64953]]

www.gpoaccess.gov/fr/index.html. Background information and documents, 
including the EA, are available at the Council's website at http://www.pcouncil.org.
    On May 17, 2007, NMFS published a temporary rule (72 FR 27759) to 
prohibit any vessel from participating in either the mothership, 
catcher-processor, or shoreside delivery sector of the directed whiting 
fishery off the West Coast in 2007 if it did not have a history of 
sector-specific participation in the whiting fishery between January 1, 
1997 and January 1, 2007 (72 FR 27759.) The Council had requested that 
NMFS implement this rule in order to prevent new entrants from 
accelerating the pace of the fishery and potentially increasing the 
rate at which bycatch species are taken in the fishery. The Council had 
requested this emergency rule in order to prevent conservation and 
management problems in the 2007 fishery while it worked to develop a 
vessel license limitation program for the whiting fishery in 2008 and 
beyond. The emergency rule published on May 17, 2007, went into effect 
on May 14, 2007, and was made effective for 180 days, or until November 
13, 2007. Under the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) at section 305(c), an emergency 
rule may be made effective for up to 180 days and may be extended for 
up to 186 additional days. In most fishing years, the whiting fishery 
has taken its full allocation and the whiting fishery is closed by mid-
November. As of publication of this document, however, 2007 whiting 
quota remains available and the fishery remains open. In order to 
prevent the ``race for fish'' that the Council had feared for the 2007 
whiting fishery, and to ensure that the accelerated race for fish does 
not occur in the early 2008 whiting season, the emergency rule must be 
extended through the additional allowable 186 days to May 13, 2008. 
NMFS anticipates that Amendment 15, if approved, will be implemented by 
that time.
    NMFS notes that the May 17, 2007 temporary rule included a 
provision (amendment to Sec.  660.333) allowing disaggregation of 
permits that had been aggregated in early 2007, and did not specify the 
end of the effective date for this disaggregation provision. NMFS has 
determined that it was an oversight to leave the provision effective 
indefinitely. NMFS is leaving the disaggregation in place and effective 
through the effective date of the extension of the emergency rule as 
originally planned to provide parties time to complete any desired 
disaggregation. If Amendment 15 to the Groundfish FMP is approved and 
implemented, NMFS intends to consider, through notice and comment 
rulemaking, termination of the option to disaggregate.
    Further background information for this action is provided in the 
preamble text of the May 17, 2007 emergency rule and in the supporting 
documents for this action, and is not repeated here.

Comments and Responses

    During the comment period on the initial emergency action, which 
ended on June 18, 2007, NMFS received one letter and eight emails of 
comment. All of the comments addressed the same subject and are 
summarized and addressed here:
    Comments: When the Council requested that NMFS take emergency 
action to prohibit participation in the 2007 whiting fishery by vessels 
without sector-specific participation prior to January 1, 2007, it had 
not requested that NMFS set a beginning date for the vessel 
qualification period. NMFS first implemented sector-specific 
allocations to the non-tribal whiting sectors that operate today in 
1997 (62 FR 27519, May 20, 1997). Therefore, in the emergency rule, 
NMFS implemented the Council's request for sector-specific 
participation history as a history of whiting catch between December 
31, 1996 and January 1, 2007. Eight of the commenters wrote to state 
that they did not believe the Council had intended to exclude from the 
2007 fisheries those vessels with fishery participation history prior 
to December 31, 1996. These commenters identified two vessels that 
would be excluded from participating in the shorebased whiting sector 
and which had already made financial arrangements to participate in the 
2007 fishery based on their interpretation that the Council's request 
had been intended to include any vessels with whiting harvest prior to 
January 1, 2007, regardless of how far into the past that history had 
occurred. A dissenting commenter wrote to oppose revising the emergency 
rule to allow 2007 participation for vessels only with participation 
history prior to 1997 when the emergency rule was continuing to 
prohibit 2007 participation by vessels with limited entry permits but 
without a history of participation in the whiting fishery.
    Response: NMFS reviewed the comments received and agreed that, 
although the Council's request did speak to sector-specific history, it 
did not set a start date for the qualification period for participation 
in 2007. Because NMFS did not have time to revise the emergency rule 
prior to the June 15, 2007 start date of the shorebased whiting 
fishery, NMFS instead revised the exempted fishing permits (EFPs) 
issued to the two affected vessels so that they were permitted to 
participate in the 2007 shorebased whiting sector. Both of the affected 
vessels had long and consistent history participating as catcher 
vessels in the mothership whiting fishery; therefore, NMFS believed 
that the vessels could be expected to participate in the shorebased 
sector without causing conservation concerns. In contrast to these two 
vessels, there were other vessels that were also excluded by the 
emergency rule to which NMFS did not issue revised EFPs. They did not 
receive EFPs because they did not have any history in the whiting 
fishery between 1997 and 2007, and thus NMFS was concerned about their 
ability to participate in the fishery without causing conservation 
concerns.

Classification

    This emergency rule extension is published under the authority of 
the Magnuson-Stevens Act.
    This action has been determined to be not significant for the 
purposes of Executive Order 12866.
    Because no general notice of proposed rulemaking is required to be 
published in the Federal Register for this emergency rule extension by 
5 U.S.C. 553 or by any other law, the analytical requirements of the 
Regulatory Flexibility Act do not apply; thus, no Regulatory 
Flexibility Analysis was prepared.
    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 17, 2007 (72 FR 27759), 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 the November 13, 2007, expiration of the initial emergency 
action, which is May 13, 2008.
    The measures of this emergency rule extension remain unchanged from 
the measures contained in the initial emergency rule that prohibited 
participation in the 2007 whiting fishery by vessels without sector-
specific participation history prior to January 1, 2007. This extension 
must be in place by November 14, 2007 because the 2007 whiting fishery 
is still underway and failing to extend the emergency rule would be 
counter to the Council's efforts to constrain whiting fishery

[[Page 64954]]

participation in 2007 in order to constrain bycatch of co-occurring 
species within the whiting fishery. Extending the provisions of the 
emergency rule without notice and comment rule will ensure that the 
2007 whiting fishery continues to operate with the same pool of 
participants that have been permitted to operate throughout the season, 
thereby preventing disruption of the fishery and unnecessary adverse 
economic impacts to fishery participants.
    NMFS solicited public comment during the 30-day post-promulgation 
comment period on the measures contained in the initial emergency 
action and extended by this action. The comments received were 
considered and are addressed in the preamble to this rule; however, no 
change to the emergency action measures were enacted as a result of the 
comments received. The Council developed a vessel license limitation 
program for 2008 and beyond under Amendment 15 to the FMP, which would 
be considered and implemented through notice and comment rulemaking. 
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.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: November 13, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  660.306, paragraph (f)(7) is added to read as follows:


Sec.  660.306  Prohibitions.

* * * * *
    (f)* * *
    (7) Fish for or land whiting, or process whiting at sea, while 
participating in a specific sector (as defined at Sec.  660.373(a)), 
from May 14, 2007 through May 13, 2008 with a vessel that has no 
history of participation within that specific sector of the whiting 
fishery in the period after December 31, 1996, and prior to January 1, 
2007, as specified in Sec.  660.373(j).
* * * * *

0
3. In Sec.  660.373, paragraph (k) is added to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (k) 2007 Pacific Whiting Fishery. (1) In general, a person may fish 
for or land whiting or process whiting at sea in a sector of the 
whiting fishery (as defined at Sec.  660.373(a)) between May 14, 2007, 
and May 13, 2008, only with a vessel that has history of participation 
in that sector of the whiting fishery in the period after December 31, 
1996, and prior to January 1, 2007. Specifically:
    (i) To harvest whiting in the shore-based sector between May 14, 
2007 and May 13, 2008, a vessel must have harvested for delivery to a 
shore-based processor at least 4,000 lb (1.81 mt) of whiting in a 
single trip during the primary season (as defined at Sec.  
660.373(b))in the period after December 31, 1996, and prior to January 
1, 2007. State fish ticket data collected by the states and maintained 
by Pacific States Marine Fisheries Commission's Pacific Fishery 
Information System is the sole evidence to demonstrate participation in 
this sector.
    (ii) To harvest whiting in the mothership sector between May 14, 
2007 and May 13, 2008, a vessel must have harvested whiting for 
delivery to motherships in the period after December 31, 1996, and 
prior to January 1, 2007. Observer data collected by the Northwest 
Fisheries Science Center and by North Pacific Groundfish Observer 
Program as organized under the Alaska Fisheries Science Center's NORPAC 
database is the sole evidence to demonstrate participation in this 
sector.
    (iii) To process whiting in the mothership sector between May 14, 
2007 and May 13, 2008, a vessel must have processed at sea, but not 
harvested, whiting in the period after December 31, 1996, and prior to 
January 1, 2007. Observer data collected by the Northwest Fisheries 
Science Center and by North Pacific Groundfish Observer Program as 
organized under the Alaska Fisheries Science Center's NORPAC database 
is the sole evidence to demonstrate participation in this sector.
    (iv) To harvest and process whiting in the catcher-processor sector 
between May 14, 2007 and May 13, 2008, a vessel must have harvested and 
processed whiting in the period after December 31, 1996, and prior to 
January 1, 2007. Observer data collected by Northwest Fisheries Science 
Center and by North Pacific Groundfish Observer Program as organized 
under the Alaska Fisheries Science Center's NORPAC database is the sole 
evidence to demonstrate participation in this sector.
    (2) [Reserved]
* * * * *
[FR Doc. 07-5732 Filed 11-14-07; 1:17 pm]
BILLING CODE 3510-22-S