[Federal Register Volume 73, Number 134 (Friday, July 11, 2008)]
[Proposed Rules]
[Pages 39930-39937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15833]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 071003556-7575-01]
RIN 0648-AW08


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Amendment 15

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS issues this proposed rule to implement Amendment 15 to 
the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 
15 would modify the FMP to implement a limited entry program for the 
non-tribal Pacific whiting fishery. Amendment 15 was approved by NMFS 
on June 18, 2008, and in accordance with the notification procedures of 
the Magnuson-Stevens Fishery Conservation and Management Act, the 
Pacific Fishery Management Council was notified of this approval. 
Amendment 15 is intended to serve as an interim measure to limit 
potential participation in the Pacific whiting fishery within the U.S. 
West Coast Exclusive Economic Zone until implementation of a trawl 
rationalization program under Amendment 20 to the Groundfish FMP.

DATES:  Comments on this proposed rule must be received on or before 
August 11, 2008.

ADDRESSES:  Amendment 15 is available on the Pacific Fishery Management 
Council's (Council's or Pacific Council's) website at: http://www.pcouncil.org/groundfish/gffmp.html.
    You may submit comments, identified by RIN 0648-AW08 by any of the 
following methods:
     Electronic Submissions: Submit all electronic public 
comments via the FederaleRulemaking Portal: http://www.regulations.gov.
     Fax: 206-526-6736, Attn: Becky Renko.
     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, Attn: Becky Renko, 7600 Sand Point Way NE, Seattle, WA 98115-
0070.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the Northwest Region (see ADDRESSES) 
and by e-mail to [email protected], or fax to (202) 395-7285. 
Send comments on collection-of-information requirements to the NMFS 
address above and to the Office of Information and Regulatory Affairs 
(OIRA), Office of Management and Budget (OMB), Washington DC 20503 
(Attn: NOAA Desk Officer).
    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. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Becky Renko, phone: 206-526-6110, fax: 
206-526-6736, or e-mail: [email protected], or for permitting 
information, Kevin Ford, phone: 206-526-6115, fax: 206-526-6736, or e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is accessible via the Internet at the Office of 
the Federal Register's Web site at http:// www.access.gpo.gov/su_docs/aces/aces140.html. Background information and documents are available 
at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm.
    NMFS is proposing this rule to implement Amendment 15 to the FMP, 
which would create a limited entry program for the three non-tribal 
sectors of the Pacific whiting fishery off the U.S. West Coast. Under 
current Federal regulations, Pacific whiting shoreside fishery catcher 
vessels, mothership catcher vessels, and catcher/processor vessels, 
must be registered to a groundfish limited entry permit. The limited 
entry program has been in place since 1994 and allows appropriately 
registered vessels to harvest groundfish, targeting any of the 90+ 
species managed under the FMP. The proposed action to implement 
Amendment 15 to the FMP would require vessels that wish to harvest and/
or process Pacific whiting in the non-tribal Pacific whiting fishery to 
qualify for a Pacific whiting vessel license limitation program. This 
is in addition to the requirement for harvesting vessels to be 
registered for use with groundfish limited entry permits. Amendment 15 
is intended to serve as an interim measure that sunsets when the 
Pacific Fishery Management Council adopts and the National Marine 
Fisheries Service implements a trawl rationalization program under 
Amendment 20 to the Pacific Groundfish FMP. Amendment 20 is currently 
under development by the Council, which adopted its preliminary 
preferred alternative at the June Council meeting. The Council 
anticipates taking final action on the trawl rationalization program in 
November 2008. If NMFS approves the Amendment, implementation is 
scheduled for late 2010, at which time Amendment 15 would no longer be 
effective. If development and implementation of Amendment 20 is delayed 
beyond that point, NMFS intends to request that the Council reconsider 
the provisions of Amendment 15.
    NMFS published a Notice of Availability for Amendment 15 on March 
19, 2008 (73 FR 14765), and is requested public comment on it through 
May 19, 2008. Amendment 15 was approved by NMFS on June 18, 2008.

Background

    Pacific whiting (Merluccius productus), also known as Pacific hake, 
is a semi-pelagic and relatively productive species that ranges from 
Sanak Island in the western Gulf of Alaska to Magdalena Bay, Baja 
California Sur, Mexico. They are most abundant in the California 
Current System, off the U.S. West Coast. Pacific whiting landings 
represent the most significant single-species contribution to West 
Coast groundfish landings from the 90+ groundfish species managed under 
the FMP by several orders of magnitude. In general, Pacific whiting is 
a very productive species with highly variable recruitment (the biomass 
of fish that mature and enter the fishery each year) and a relatively 
short life span when compared to other groundfish species. In 1987, the 
Pacific whiting biomass was at a historically high level due to an 
exceptionally large number of fish that had spawned in 1980 and 1984 
(fished spawned during a particular year are referred to as year 
classes). As these large year classes of fish passed through

[[Page 39931]]

the population and were replaced by moderate sized year classes, the 
stock declined. The Pacific whiting stock stabilized between 1995 and 
1997, but then declined to its lowest level in 2001. After 2001, the 
Pacific whiting biomass increased substantially as a strong 1999 year 
class matured and entered the spawning population. The contribution of 
the 1999 year class to the total population is rapidly declining as it 
matures.
    Coastwide Pacific whiting harvest is managed via a 2003 U.S.-Canada 
agreement on Pacific whiting conservation, research, and catch sharing. 
Under that agreement, U.S. fisheries have access to 73.88 percent of 
the total annual Pacific whiting optimum yield (OY), with Canadian 
fisheries having access to 26.12 percent of the OY.
    Pacific whiting harvest within U.S. waters is first allocated 
between tribal and non-tribal fisheries. In 1994, the United States 
formally recognized that the four Washington coastal treaty Indian 
tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish 
for groundfish in the Pacific Ocean. In general terms, the 
quantification of those rights is 50 percent of the harvestable surplus 
of groundfish that pass through the tribes' usual and accustomed ocean 
fishing areas (described at 50 CFR 660.324). To date, only the Makah 
Tribe has participated in a tribal fishery for Pacific whiting. 
Beginning in 1999, NMFS set the tribal allocation according to an 
abundance-based sliding scale method, proposed by the Makah Tribe in 
1998 (see 64 FR 27928 (May 29, 1999); 65 FR 221, (January 4, 2000); 66 
FR 2338 (January 11, 2001).) On December 28, 2004, the Ninth Circuit 
Court of Appeals upheld the sliding scale approach in Midwater Trawler 
Cooperative v. Daley, 393 F. 3d 994 (9\th\ Cir. 2004). Under the 
sliding scale allocation method, the tribal allocation varies with the 
U.S. Pacific whiting OY, ranging from 14 percent (or less) of the U.S. 
OY when OY levels are above 250,000 mt, to 17.5 percent of the U.S. OY 
when the OY level is at or below 145,000 mt.
    Since 1997, the non-tribal Pacific whiting fishery has been divided 
into three separate sectors: the shore-based sector, which is composed 
of vessels that harvest whiting for delivery to land-based processors; 
the mothership sector, which is composed of catcher vessels that 
harvest whiting and mothership vessels that process; and, the catcher/
processor sector, which is composed of vessels that harvest and process 
whiting. Domestic allocation of the annual U.S. Pacific whiting OY 
between these three sectors is provided for within Federal regulations 
at 50 CFR 660.323(a)(2): 34 percent for the catcher/processor sector; 
24 percent for the mothership sector; and 42 percent for the shore-
based sector. In addition to these between-sector allocations, no more 
than 5 percent of the shore-based allocation may be taken and retained 
south of 42[deg] N. lat. before the June 15 start of the shore-based 
sector primary Pacific whiting season north of 42[deg] N. lat.

The American Fisheries Act (AFA) and Amendment 15

    The 1998 AFA was designed to strengthen U.S. ownership standards 
that had been exploited under the Anti-reflagging Act, and to 
rationalize the Bering Sea and Aleutian Islands (BSAI) walleye pollock 
(pollock) fishery while protecting non-AFA participants in other 
fisheries. The AFA prioritized U.S. interests in the harvest of U.S. 
fishery resources and decapitalized the BSAI pollock fishery through 
buyouts. Management measures required by the AFA include (1) 
regulations that limit access into the fishing and processing sectors 
of the BSAI pollock fishery and that allocate pollock to such sectors, 
(2) regulations governing the formation and operation of fishery 
cooperatives in the BSAI pollock fishery, (3) regulations to protect 
other fisheries from spillover effects from AFA, and (4) regulations 
governing catch measurement and monitoring in the BSAI pollock fishery.
    Section 211 of the AFA requires the Pacific Council, not later than 
July 1, 2000, to recommend conservation and management measures it 
determines necessary to protect fisheries under its jurisdiction and 
the participants in those fisheries from adverse impacts caused by the 
AFA, or by any fishery cooperatives in the directed pollock fishery. In 
response to this requirement, the Council initiated discussions on 
Amendment 15 to the FMP in September 1999. At that time, the initial 
intent of Amendment 15 was to restrict AFA-qualified vessels that had 
not met historic Pacific whiting landing requirements during the 1994-
1999 period from future participation in the Pacific Coast groundfish 
fishery.
    In September 2001, the Council reviewed a range of alternatives and 
initial analysis for Amendment 15. The draft environmental assessment 
(EA) identified four key issues: qualifying criteria for AFA catcher 
vessels; whether AFA catcher vessel restrictions would be on vessels, 
permits held by vessels, or both; qualifying criteria for AFA catcher 
processors; qualifying criteria for AFA motherships; and duration of 
the restrictions. Upon reviewing the draft 2001 EA, the Council 
determined that there was no imminent harm to West Coast groundfish 
fisheries from the AFA. This determination, in combination with 
competing workload led the Council to table action on Amendment 15 in 
2001.

Amendment 15 in the 2007 Council Process

    In 2005 and 2006, market conditions for Pacific whiting changed 
dramatically, with prices paid to fishermen increasing from an average 
price of about $0.04 per pound ($88 per ton) in the 1992-2005 period to 
more than $ 0.06 per pound ($143 per ton) in 2006. Preliminary 
information for Oregon shore-based landings of Pacific whiting 
indicates an increase from $0.07 in 2006 to $0.08 in 2007, doubling the 
historic average price. The rise in ex-vessel prices was stimulated by 
increased world demand for whiting products, in particular new markets 
for headed and gutted whiting. Higher Pacific whiting prices attracted 
new entrants to the Pacific whiting fishery from vessels with Pacific 
coast limited entry groundfish permits that had historically 
participated in the non-whiting groundfish fisheries, that had 
purchased West Coast limited entry permits for the purpose of joining 
the Pacific whiting fishery, or that had historic Pacific whiting catch 
in one sector but were newly entering other sectors. Historic fishery 
participants were concerned that new fishery entrants would ultimately 
accelerate the race for fish in the fishery, making the fishery more 
dangerous for participants and more prone to poor decision-making in 
fishing and which could ultimately result in higher rates of bycatch of 
protected or overfished species associated with Pacific whiting. Some 
of the new entrants to the Pacific whiting fishery were AFA-qualified 
vessels with fishing operations off Alaska. Therefore, in 2006, fishing 
industry members requested that the Council re-open consideration of 
Amendment 15 to the FMP.
    In September 2006, the Council again took up Amendment 15 and, 
realizing that an FMP amendment could not be completed in time to 
affect the 2007 Pacific whiting fishery, discussed how to limit Pacific 
whiting fishery participation in 2007. To address short-term 
participation in the Pacific whiting fishery, the Council requested 
that NMFS implement an emergency rule for the 2007 fishery that would 
prohibit participation in a non-tribal sector by AFA-qualified vessels 
that had no historic participation in that sector prior

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to 2006. NMFS denied this request primarily because it would not have 
restricted participation in the 2007 fishery by non-AFA vessels; 
therefore, the requested rule would not solve the serious conservation 
or management problems in the fishery the Council had identified. 
Current harm to the fishery could not be traced back solely to the AFA 
itself, which meant that an emergency rule designed to exclude only 
AFA-qualified vessels could not be approved.
    The Council re-visited its emergency rule request at its March 2007 
meeting, and ultimately recommended that NMFS implement an emergency 
rule. After concluding that conditions were such that new entry into 
the non-tribal sectors was likely in 2007, the Council recommended an 
emergency rule to prohibit participation in a particular non-tribal 
sector by a vessel without a history of sector-specific participation 
between January 1, 1997 and January 1, 2007. NMFS implemented this 
request on May 14, 2007 (72 FR 27759, May 17, 2007) stating concern 
that an accelerated ``race for fish'' was likely to cause serious 
conservation and management problems. The emergency rule was intended 
to be interim until longer term regulations could be implemented.
    Continuing its work for 2008 and beyond, the Council again 
addressed Amendment 15 at its April, June, and September 2007 meetings. 
Based on continued concern with conservation effects of increased entry 
and the resulting race for fish, the Council discussed action 
alternatives that would restrict participation in the sectors by any 
vessel, not just AFA-qualified vessels, that did not meet particular 
landings requirements. The action alternatives differed only in the 
qualifications necessary to participate in particular non-tribal 
sectors of the Pacific whiting fishery. At its September 9-14, 2007 
meeting in Portland, Oregon, the Council reviewed an EA and draft 
amendatory language for Amendment 15, and listened to the advice of its 
advisory bodies and members of the public on choosing a preferred 
alternative for implementing Amendment 15. Council discussions 
concerned the likelihood of new entry given increased whiting exvessel 
prices and declining pollock quotas. Council discussions centered on 
the effects of new entry into a fishery already experiencing declining 
limited West Coast trawl opportunities due to overfished species 
rebuilding measures, concerns about the conservation of overfished 
groundfish stocks and salmon stocks listed under the Endangered Species 
Act, increased costs to manage the fishery if it becomes faster paced 
due to increased participation, and the decreased economic returns to 
historical harvesters from new entrants. Ultimately, the Council chose 
a hybrid alternative that combined historic qualification preferences 
expressed by participants in the three different non-tribal sectors, 
based on the evolution of the different sectors.
    The Council's preferred alternative for Amendment 15, which this 
rule proposes to implement, would restrict participation in the non-
tribal sectors as follows: catcher vessels in the Pacific whiting 
shoreside fishery would be required to have made sector-specific 
Pacific whiting landings in any one calendar year during the period of 
January 1, 1994, through January 1, 2007; vessels participating in 
either the catcher/processor or mothership sector would be required to 
have either caught and processed Pacific whiting (catcher/processor 
sector,) caught and delivered Pacific whiting (catcher vessels in 
mothership sector,) or processed Pacific whiting (motherships) in any 
one calendar year during the period of January 1, 1997 through January 
1, 2007. This would be the first participation requirement for 
motherships, which, unlike catcher vessels, have not needed a 
groundfish limited entry permit registered to them. The Council 
preferred the 1994 qualifying period start date for the shore-based 
sector because that was the first year the groundfish limited entry 
program was in effect. For the at-sea sectors, however, 1997 was the 
preferred qualifying period start date because that was the first year 
that Pacific whiting was specifically allocated between the three 
sectors. Prior to 1997, Pacific whiting catch was allocated between 
vessels that landed on shore and those that caught Pacific whiting for 
processing at sea.

Amendment 15 Implementing Regulations

    Amendment 15 proposes to implement a limited entry program for the 
three non-tribal sectors of the Pacific whiting fishery. Vessels would 
be required to meet certain participation criteria and, with the 
exception of the motherships, would also be required to have the vessel 
registered to a Pacific Coast groundfish limited entry permit. 
Motherships would only be required to meet the participation criteria. 
The regulations proposed in this rule for Amendment 15 would follow 
NMFS Northwest Region's historic practices for implementing license 
limitation and permit limitation programs, such as the groundfish 
limited entry program itself, the sablefish endorsement program, and 
the three-tier sablefish program.
    Under the proposed regulations, NMFS would mail Pacific whiting 
vessel license applications to all current and prior owners of vessels 
that have been registered for use with limited entry permits with trawl 
endorsements, excluding owners of those vessels whose permits were 
purchased through the Pacific Coast groundfish fishing capacity 
reduction program. NMFS would also make license applications available 
online at: http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Permits/index.cfm.
    To participate in the fishery in 2009 and beyond, a vessel owner 
who believes that his/her vessel may qualify for the Pacific whiting 
vessel license would have until December 31, 2008, to submit 
documentation showing how his/her vessel has met the qualifying 
criteria. NMFS will not accept applications for Pacific whiting vessel 
licenses received after December 31, 2008. After receipt of a complete 
application, NMFS will notify applicants by letter of its determination 
whether their vessels qualify for Pacific whiting vessel licenses and 
the sector or sectors to which the licenses apply. Vessels that have 
met the qualification criteria will be issued the appropriate licenses 
at that time.
    For 2008, the proposed action would prohibit vessels from fishing, 
landing, or processing Pacific whiting in a primary whiting season from 
the effective date of this action through December 31, 2008, with a 
catcher/processor, mothership or mothership catcher vessel that has no 
history of participation within that specific sector of the whiting 
fishery during the period from January 1, 1997, through January 1, 
2007, or with a shoreside catcher vessel that has no history of 
participation within the shore-based sector of the whiting fishery 
during the period from January 1, 1994 through January 1, 2007, as 
specified in Sec.  660.373(j). Participation in the shore-based sector 
is in reference to participation in the primary whiting season. This 
rule proposes that, in order to qualify for a Pacific whiting vessel 
license in the shore-based sector, documentation is required to show 
the vessel made at least one landing of whiting taken with mid-water 
trawl gear during a primary shore based season during the period 
January 1, 1994 through January 1, 2007, and that the weight of whiting 
exceeded 50 percent of the total weight of the landing.
    NMFS is authorized under the Magnuson-Stevens Act to collect funds 
from permit recipients to recover the

[[Page 39933]]

cost of the permitting process. NMFS initially estimates that the fee 
for initial issuance of Pacific whiting licenses will be $650 per 
license it issued. NMFS must receive the fee payment in full to 
consider the application complete and to process the application.
    For 2009, NMFS would both publish a list of vessels that have 
qualified for the Pacific whiting vessel license in the Federal 
Register, and would issue licenses to those vessels that apply prior to 
the start of the 2009 fishing season. Each license will indicate the 
sector or sectors for which the vessel has qualified. To participate in 
any of the non-tribal whiting sectors in 2009 and beyond, a harvesting 
vessel would be required to be registered for use with both a 
groundfish limited entry permit and with a Pacific whiting vessel 
license. The license would be associated with the vessel, not with a 
limited entry permit. A mothership vessel that processes whiting, but 
does not harvest would only be required to have a whiting vessel 
license for the mothership sector. Therefore, once issued, the Pacific 
whiting vessel license would not be re-issued unless it has been lost, 
or unless there is some change in the vessel owner information for the 
vessel to which it is registered. Consistent with the intent of 
Amendment 15, Pacific whiting vessel license holders would not be 
allowed to transfer those licenses to any other vessels.
    Based on an initial review of potential qualifying vessels for each 
sector, NMFS anticipates that there would be some catcher vessels that 
qualify to be licensed for both the shore-based and mothership sectors. 
However, NMFS also anticipates that there would not be any vessels that 
qualify to be licensed as both a catcher/processor and as a mothership 
processor. Therefore, NMFS is proposing via this action to remove Sec.  
660.373(h), which allows that catcher/processor vessels have mobility 
between the different sectors mobility that the Council has recommended 
eliminating via Amendment 15.
    The proposed regulations to implement Amendment 15 would also 
correct an error made in the temporary rule discussed above and 
published on May 14, 2007 (72 FR 27759.) Through a mistake in the 
``DATES'' section of the May 17, 2007, temporary rule, NMFS made 
permanent revisions to 50 CFR 660.333 and 660.335. These permanent 
revisions allow limited entry trawl permits that were created between 
December 31, 2006, and May 14, 2007, by aggregating multiple limited 
entry permits, to be disaggregated back into the initially combined 
component parts - an action otherwise prohibited by limited entry 
permit regulations. At least one vessel owner who had, prior to the 
implementation of the temporary rule, prepared for participating in the 
2007 Pacific whiting fishery by purchasing and aggregating permits in 
order to create a permit with a length endorsement long enough to suit 
their vessel. The temporary rule provided an exception to regulations 
that would normally not allow disaggregating permits, in order to 
mitigate for the potential long-term effects on vessel owners who had 
expected to become new participants in the 2007 Pacific whiting 
fishery, but who were prevented by the temporary rule. Because this 
provision was improperly implemented as a permanent change to Federal 
regulations instead of temporarily as provided by the Magnuson-Stevens 
Act, NMFS proposes to correct that mistake via this proposed rule to 
implement Amendment 15. NMFS announced this intent in the notice that 
extended the emergency rule (72 FR 64953; November 19, 2007) These 
corrections would affect 50 CFR 660.333(f) and 660.335(f)(3).

Regulations Steamlining

    In addition to this correction, this action also proposes a measure 
for Federal regulations at Sec.  660.335(a). In their review of Chapter 
11 of the FMP, NMFS and the Council noted that the chapter includes a 
requirement held over from Amendment 6, the original limited entry 
program, that calls for NMFS to send out notification of annual limited 
entry permit renewals by September 1 of each year. This September 1 
notification date was included in the FMP in order to accommodate an 
annual 60-day renewal period for vessel owners of October 1 through 
November 30. This provision is implemented in Federal regulations at 
Sec.  660.335(a)(2), which states in part, ``Notification to renew 
limited entry permits will be issued by SFD prior to September 1 each 
year to the most recent address of the permit owner...''
    The Council recommended that Amendment 15 include a shift in the 
permit renewal notification date from September 1 to September 15. This 
shift would not alter the October 1 through November 30 renew period; 
rather, it would help to ensure that renewals do not occur prior to 
October 1st, which would be beneficial both from an accounting 
perspective and from an agency workload perspective.
    The Federal fiscal year begins October 1st. When NMFS sends permit 
renewal notices by September 1st, many permit owners diligently renew 
their permits as quickly as possible, often sending renewals and fees 
by mid-September. NMFS immediately deposits funds received, in keeping 
with good accounting practices. As a result of this one-month lag 
between renewal notices and fiscal year start date, each renewal period 
inevitably includes funds received in two separate fiscal years. Moving 
the renewal date to September 15th would aid NMFS by ensuring that 
funds received to renew permits for a particular fishing year are 
credited to the applicable fiscal year.
    September 1st is also the start of a two-month cumulative limit 
period, which means that the week just prior to September 1st, numerous 
permit owners submit permit transfers to move their permits to new 
boats for the start of the September-October cumulative limit period. 
This particular cumulative limit period is often active for permit 
transfers, since it is the last cumulative limit period that also falls 
within the April - October primary tier sablefish fishing season. 
Moving the renewal date to September 15th would allow NMFS to process 
last-minute permit transfer requests before sending renewal 
notification packets to permit owners. This will ensure that all 
renewal forms reflect the most recent changes to these permits. For 
these reasons, Amendment 15 authorizes Federal regulations at Sec.  
660.335(a)(2) to be revised to read in part, ``Notification to renew 
limited entry permits will be issued by SFD prior to September 15 each 
year to the most recent address of the permit owner. . . .''

Classification

    Pursuant to section 304 of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this proposed rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.
     An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). 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 summary of the analysis 
follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).

[[Page 39934]]

    The Small Business Administration has established size criteria for 
all major industry sectors in the US including fish harvesting and fish 
processing businesses. The RFA recognizes and defines three kinds of 
small entities: small businesses, small organizations, and small 
governmental jurisdictions. NMFS March 2007 Economic Guidelines (http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf) establish 
the current size standards for Magnuson-Stevens Act related rules as 
follows: Any fish-harvesting or hatchery business is a small business 
if it is independently owned and operated and not dominant in its field 
of operation and if it has total annual gross receipts not in excess of 
$4.0 million. Total annual gross receipts should include those of 
affiliates when practicable and appropriate to do so. Any vessel which 
both harvests and processes fish (also referred to as a catcher 
processor) is currently considered a small business if its combined 
total annual gross receipts (including all affiliates, worldwide, where 
practicable and appropriate) are not in excess of $4.0 million.
    Adoption of Amendment 15 under the preferred alternative is 
expected to maintain the existing economic character of the Pacific 
whiting fishery. The actual levels of jobs, revenues, profits and total 
personal income for fishery participants and the affected communities 
will be influenced by such things as the abundance of Pacific whiting, 
market prices for Pacific whiting and substitute commodities and the 
condition of other fishery resources.
    The number of fishery participants is expected to stay relatively 
consistent with the numbers observed in past years as no new entrants 
to the Pacific whiting fishery will be permitted. Accordingly, the 
economic impacts of the proposed action per se on existing businesses 
are expected to be minimal provided that a significant number of 
historically active vessels are not both eligible for the limited 
Pacific whiting licenses and choose to enter the fishery. Either 
because of participation in Alaska Pollock and other fisheries or being 
affiliated with large seafood companies, catcher/processor and 
mothership operations operating in the WOC are not considered small 
businesses.
    Since 1994, approximately 26-31 catcher vessels have participated 
in the shoreside fishery annually. Approximately 10-43 catcher vessels 
have participated in the mothership fishery annually since 1994. These 
companies are all assumed to be small businesses. This rulemaking is 
expected to have minimal impacts on the business that catcher vessels 
conduct with the mothership processors and shore-based processors. It 
is also expected to have minimal impact on vessels in the catcher/
processor sector of the fishery. If anything, this rule maintains the 
economics of the existing small businesses participating in the fishery 
as it prevents new vessels, potentially the larger vessels from Alaska, 
from participating in the fishery. NMFS is aware of one company that 
has purchased several permits for possible combination into a single 
large permit that has the length endorsement for use with a catcher/
processor vessel, but this company is not considered a small company as 
its involvement in Alaska pollock fisheries suggests that it earns more 
than $4.0 million in revenues. There may be other companies large or 
small that wish to enter the fishery but we are unaware of any 
investments that have been undertaken specifically for entering the 
whiting fishery.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval. Public reporting burden for 
applying for a Pacific whiting licenses is estimated to average 60 
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 information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to 
Northwest Region at the ADDRESSES above, and by e-mail to [email protected] or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to 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.
    NMFS issued Biological Opinions under the 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, and 
Oregon 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, southern California).
    NMFS reinitiated a formal section 7 consultation under the ESA in 
2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999, Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000-fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to do a more complete 
analysis of salmon take in the bottom trawl fishery.
    NMFS completed its reinitiation consultation and prepared a 
Supplemental Biological Opinion dated March 11, 2006. In its 2006 
Supplemental Biological Opinion, NMFS concluded that catch rates of 
salmon in the 2005 Pacific whiting fishery were consistent with 
expectations considered during prior consultations. Chinook bycatch has 
averaged about 7,300 over the last 15 years and has only occasionally 
exceeded the reinitiation trigger of 11,000. Since 1999, annual Chinook 
bycatch has averaged about 8,450. The Chinook ESUs most likely affected 
by the Pacific whiting fishery have generally improved in status since 
the 1999 section 7 consultation. Although these species remain at risk, 
as indicated by their ESA listing, NMFS concluded that the higher 
observed bycatch in 2005 does not require a reconsideration of its 
prior ``no jeopardy'' conclusion with respect to the fishery. For the 
groundfish bottom trawl fishery, NMFS concluded that incidental take in 
the groundfish fisheries is within the overall limits articulated in 
the Incidental Take

[[Page 39935]]

Statement of the 1999 Biological Opinion. The groundfish bottom trawl 
limit from that opinion was 9,000 fish annually. NMFS will continue to 
monitor and collect data to analyze take levels. NMFS also reaffirmed 
its prior determination that implementation of the Groundfish FMP is 
not likely to jeopardize the continued existence of any of the affected 
ESUs.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) were 
recently listed 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. The Southern Distinct Population 
Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) were also 
recently listed as threatened under the ESA. As a consequence, NMFS has 
reinitiated its Section 7 consultation on the PFMC's Groundfish FMP.
    After reviewing the available information, NMFS concluded that, in 
keeping with Sections 7(a)(2) and 7(d) of the ESA, the proposed action 
would not result in any irreversible or irretrievable commitment of 
resources that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the 
voting members of the Council must be a representative of an Indian 
tribe with federally recognized fishing rights from the area of the 
Council's jurisdiction. Pursuant to Executive Order 13175, this action 
was developed through the Council process with meaningful collaboration 
with tribal officials from the area covered by the FMP. The tribal 
representative on the Council did not make a motion on this action for 
tribal fisheries.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: July 7, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  660.306, paragraph (f)(7) is removed, paragraphs (f)(1) 
through (f)(6) are redesignated as paragraphs (f)(2)through (f)(7), 
respectively, and a new paragraph (f)(1) is added to read as follows:


Sec.  660.306  Prohibitions.

* * * * *
    (f) * * *
    (1) Fish in any of the sectors of the whiting fishery described at 
Sec.  660.373(a) after January 1, 2009 using a vessel that is not 
registered for use with a sector-appropriate Pacific whiting vessel 
license under Sec.  660.336. Prior to January 1, 2009, vessels are 
prohibited from fishing, landing, or processing Pacific whiting with a 
catcher/processor, mothership or mothership catcher vessel that has no 
history of participation within that specific sector of the whiting 
fishery during the period from January 1, 1997, through January 1, 
2007, or with a shoreside catcher vessels that has no history of 
participation within the shore-based sector of the whiting fishery 
during the period from January 1, 1994 through January 1, 2007, as 
specified in Sec.  660.373(j). For the purpose of this paragraph, 
``historic participation'' for a specific sector is the same as the 
qualifying criteria listed in Sec.  660.336 (a)(2).
    (i) If a Pacific whiting vessel license is registered for use with 
a vessel, fail to carry that license onboard the vessel registered for 
use with the license at any time the vessel is licensed. A photocopy of 
the license may not substitute for the license itself.
    (ii) [Reserved]
* * * * *
    3. In Sec.  660.333, paragraph (f) is removed and paragraph (a) is 
revised to read as follows:


Sec.  660.333  Limited entry fishery eligibility and registration.

    (a) General. A limited entry permit confers a conditional privilege 
of participating in the Pacific coast groundfish limited entry fishery, 
in accordance with Federal regulations in 50 CFR part 660. In order for 
a vessel to participate in the limited entry fishery, the vessel owner 
must hold a limited entry permit and, through SFD, must register that 
permit for use with his/her vessel. When participating in the limited 
entry fishery, a vessel is authorized to fish with the gear type 
endorsed on the limited entry permit registered for use with that 
vessel. There are three types of gear endorsements: trawl, longline, 
and pot (or trap). All limited entry permits have size endorsements and 
a vessel registered for use with a limited entry permit must comply 
with the vessel size requirements of this subpart. A sablefish 
endorsement is also required for a vessel to participate in the primary 
season for the limited entry fixed gear sablefish fishery, north of 
36[deg] N. lat. After December 31, 2008, a catcher vessel participating 
in either the whiting shore-based or mothership sector must, in 
addition to being registered for use with a limited entry permit, be 
registered for use with a sector-appropriate Pacific whiting vessel 
license under Sec.  660.336. After December 31, 2008, a vessel 
participating in the whiting catcher/processor sector must, in addition 
to being registered for use with a limited entry permit, be registered 
for use with a sector-appropriate Pacific whiting vessel license under 
Sec.  660.336. After December 31, 2008, although a mothership vessel 
participating in the whiting mothership sector is not required to be 
registered for use with a limited entry permit, such vessel must be 
registered for use with a sector-appropriate Pacific whiting vessel 
license under Sec.  660.336.
* * * * *
    4. In Sec.  660.335, paragraph (f)(3) is removed and paragraph 
(a)(2) is revised to read as follows:


Sec.  660.335  Limited entry permits renewal, combination, stacking, 
change of permit ownership or permit holdership, and transfer.

    (a) * * *
    (2) Notification to renew limited entry permits will be issued by 
SFD prior to September 15 each year to the most recent address of the 
permit owner. The permit owner shall provide SFD with notice of any 
address change within 15 days of the change.
* * * * *
    5. A new Sec.  660.336 is added to read as follows:


Sec.  660.336  Pacific whiting vessel licenses.

    (a) Pacific whiting vessel license--(1) General. After December 31, 
2008, participation in the non-tribal primary whiting season described 
in Sec.  660.373(b) requires that an owner of any vessel that catches 
or processes Pacific whiting hold: a limited entry permit, registered 
for use with that vessel, with a trawl gear endorsement; and, a Pacific 
whiting vessel license, registered for use with that vessel, 
appropriate to the sector or sectors in which the vessel intends to 
participate. Pacific whiting vessel licenses are separate from limited 
entry permits and do not license a vessel to harvest whiting in the 
primary whiting season unless that vessel is also

[[Page 39936]]

registered for use with a limited entry permit with a trawl gear 
endorsement.
    (2) Pacific whiting vessel license qualifying criteria.
    (i) Qualifying criteria. Vessel catch and/or processing history 
will be used to determine whether that vessel meets the qualifying 
criteria for a Pacific whiting vessel license and to participate in a 
specific sector of the Pacific whiting fishery in 2008 and to determine 
the sectors for which that vessel may qualify. Vessel catch and/or 
processing history includes only the catch and/or processed product of 
that particular vessel, as identified in association with the vessel's 
USCG number. Only whiting regulated by this subpart that was taken with 
midwater (or pelagic) trawl gear will be considered for the Pacific 
whiting vessel license. Whiting harvested or processed by a vessel that 
has since been totally lost or decommissioned will not be considered 
for this license. Whiting harvested or processed illegally or landed 
illegally will not be considered for this license. Catch and/or 
processing history associated with a vessel whose permit was purchased 
by the Federal government through the Pacific Coast groundfish fishing 
capacity reduction program, as identified in 68 FR 62435 - 62440 
(November 4, 2003), does not qualify a vessel for a Pacific whiting 
vessel license and no vessel owner may apply for or receive a Pacific 
whiting vessel license based on catch and/or processing history from 
one of those buyback vessels. The following sector-specific license 
qualification criteria apply:
    (A) For catcher/processor vessels, the qualifying criteria for a 
Pacific whiting vessel license is evidence of having caught and 
processed any amount of whiting during a primary catcher/processor 
season during the period January 1, 1997 through January 1, 2007.
    (B) For mothership at-sea processing vessels, the qualifying 
criteria for a Pacific whiting vessel license is documentation of 
having received and processed any amount of whiting during a primary 
mothership season during the period January 1, 1997 through January 1, 
2007.
    (C) For catcher vessels delivering whiting to at-sea mothership 
processing vessels, the qualifying criteria for a Pacific whiting 
vessel license is documentation of having delivered any amount of 
whiting to a mothership processor during a primary mothership season 
during the period January 1, 1997, through January 1, 2007.
    (D) For catcher vessels delivering whiting to Pacific whiting first 
receiver, the qualifying criteria for a Pacific whiting vessel license 
is documentation of having made at least one landing of whiting taken 
with mid-water trawl gear during a primary shore-based season during 
the period January 1, 1994, through January 1, 2007, and where the 
weight of whiting exceeded 50 percent of the total weight of the 
landing.
    (ii) Documentation and burden of proof. A vessel owner applying for 
a Pacific whiting vessel license has the burden to submit documentation 
that qualification requirements are met. An application that does not 
include documentation of meeting the qualification requirements during 
the qualifying years will be considered incomplete and will not be 
reviewed. The following standards apply:
    (A) A certified copy of the current vessel document (USCG or State) 
is the best documentation of vessel ownership and LOA.
    (B) A certified copy of a State fish receiving ticket is the best 
documentation of a landing at a Pacific whiting shoreside first 
receiver, and of the type of gear used.
    (C) For participants in the at-sea whiting fisheries, documentation 
of participation could include, but is not limited to: a final observer 
report documenting a particular catcher vessel, mothership, or catcher/
processor's participation in the whiting fishery in an applicable year 
and during the applicable primary season, a bill of lading for whiting 
from an applicable year and during the applicable primary season, a 
catcher vessel receipt from a particular mothership known to have 
participated in the whiting fishery during an applicable year, a signed 
copy of a Daily Receipt of Fish and Cumulative Production Logbook 
(mothership sector) or Daily Fishing and Cumulative Production Logbook 
(catcher/processor sector) from an applicable year during the 
applicable primary season.
    (E) Such other relevant, credible documentation as the applicant 
may submit, or the SFD or the Regional Administrator request or 
acquire, may also be considered.
    (3) Issuance process for Pacific whiting vessel licenses.
    (i) SFD will mail Pacific whiting vessel license applications to 
all current and prior owners of vessels that have been registered for 
use with limited entry permits with trawl endorsements, excluding 
owners of those vessels whose permits were purchased through the 
Pacific Coast groundfish fishing capacity reduction program. NMFS will 
also make license applications available online at: http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Permits/index.cfm. A 
vessel owner who believes that his/her vessel may qualify for the 
Pacific whiting vessel license will have until December 31, 2008, to 
submit an application with documentation showing how his/her vessel has 
met the qualifying criteria described in this section. NMFS will not 
accept applications for Pacific whiting vessel licenses received after 
December 31, 2008.
    (ii) After receipt of a complete application, NMFS will notify 
applicants by letter of its determination whether their vessels qualify 
for Pacific whiting vessel licenses and the sector or sectors to which 
the licenses apply. Vessels that have met the qualification criteria 
will be issued the appropriate licenses at that time. After December 
31, 2008, NMFS will publish a list of vessels that qualified for 
Pacific whiting vessel licenses in the Federal Register.
    (iii) If a vessel owner files an appeal from the determination 
under paragraph (a)(3)(ii) of this section the appeal must be filed 
with the Regional Administrator within 30 calendar days of the issuance 
of the letter of determination. The appeal must be in writing and must 
allege facts or circumstances, and include credible documentation 
demonstrating why the vessel qualifies for a Pacific whiting vessel 
license. The appeal of a denial of an application for a Pacific whiting 
vessel license will not be referred to the Council for a 
recommendation, nor will any appeals be accepted by NMFS after April 1, 
2009.
    (iv) Absent good cause for further delay, the Regional 
Administrator will issue a written decision on the appeal within 30 
calendar days of receipt of the appeal. The Regional Administrator's 
decision is the final administrative decision of the Department of 
Commerce as of the date of the decision.
    (4) Notification to NMFS of changes to Pacific whiting vessel 
license information. The owner of a vessel registered for use with a 
Pacific whiting vessel license must provide a written request to NMFS 
to change the name or names of vessel owners provided on the vessel 
license, or to change the licensed vessel's name. The request must 
detail the names of all new vessel owners, a business address for the 
vessel owner, business phone and fax number, tax identification number, 
date of birth, and/or date of incorporation for each individual and/or 
entity, and a copy of the vessel documentation (USCG 1270) to show 
proof of ownership. NMFS will reissue a new vessel license with the 
names of the new vessel owners and/or

[[Page 39937]]

vessel name information. The Pacific whiting vessel license is 
considered void if the name of the vessel or vessel owner is changed 
from that given on the license. In addition, the vessel owner must 
report to NMFS any change in address for the vessel owner within 15 
days of that change. Although the name of an individual vessel 
registered for use with a Pacific whiting vessel license may be 
changed, the license itself may not be registered to any vessel other 
than the vessel to which it was originally issued, as identified by 
that vessel's United States Coast Guard documentation number.
    6. Section 660.339 is revised to read as follows:


Sec.  660.339  Limited entry permit and Pacific whiting vessel license 
fees.

    The Regional Administrator will charge fees to cover administrative 
expenses related to issuance of limited entry permits, and Pacific 
whiting vessel licenses including initial issuance, renewal, transfer, 
vessel registration, replacement, and appeals. The appropriate fee must 
accompany each application.
    7. In Sec.  660.373, paragraph (h) is removed, and paragraphs (i) 
and (j) are redesignated as (h) and (i), respectively, and paragraph 
(a) is revised to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

    (a) Sectors and licensing requirements. The catcher/processor 
sector is composed of catcher/processors, which are vessels that 
harvest and process whiting during a calendar year. The mothership 
sector is composed of motherships vessels that process whiting and 
catcher vessels that harvest whiting for delivery to motherships. 
Motherships are vessels that process, but do not harvest, whiting 
during a calendar year. The shore-based sector is composed of vessels 
that harvest whiting for delivery to Pacific whiting shoreside first 
receivers. In order for a vessel to participate in a particular whiting 
fishery sector, that vessel must be registered for use with a sector-
specific Pacific whiting vessel license under Sec.  660.336.
* * * * *
[FR Doc. E8-15833 Filed 7-10-08; 8:45 am]
BILLING CODE 3510-22-S