[Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)]
[Rules and Regulations]
[Pages 77415-77430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31975]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 110908575-1687-03]
RIN 0648-BB27


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; 2012 Specifications and Management Measures and Secretarial 
Amendment 1

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

ACTION: Final rule.

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SUMMARY: This final rule establishes the 2012 harvest specifications 
and management measures for certain groundfish species taken in the 
U.S. exclusive economic zone (EEZ) off the coasts of Washington, 
Oregon, and California consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act and the Pacific Coast Groundfish 
Fishery Management Plan (PCGFMP). This action includes regulations to 
implement Secretarial Amendment 1 to the PCGFMP. Secretarial Amendment 
1 contains the rebuilding plans for overfished species and new 
reference points for assessed flatfish species.

DATES: This rule is effective January 1, 2012.

ADDRESSES: Information relevant to this final rule, which includes a 
final environmental impact statement (FEIS), a regulatory impact review 
(RIR), and a final regulatory flexibility analysis (FRFA) is available 
for public review during business hours at the office of the Pacific 
Fishery Management Council (Council), at 7700 NE Ambassador Place, 
Portland, OR 97220, phone: (503) 820-2280. Copies of additional reports 
referred to in this document may also be obtained from the Pacific 
Fishery Management Council.

FOR FURTHER INFORMATION CONTACT: Sarah Williams, phone: (206) 526-4646, 
fax: (206) 526-6736, or email: [email protected]

SUPPLEMENTARY INFORMATION:

Electronic Access

    This rule is accessible via the Internet at the Office of the 
Federal Register 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 and at the Council's 
Web site at http://www.pcouncil.org.

Summary of Provisions in This Final Rule

    NMFS published a proposed rule on September 27, 2011 (76 FR 59634) 
and a Notice of Availability of Secretarial Amendment 1 to the Pacific 
Coast Groundfish Fishery Management Plan (PCGFMP) on September 9, 2011 
(76 FR 55865). The comment periods on both the proposed rule and FMP 
amendment closed on November 8, 2011. NMFS has approved Secretarial 
Amendment 1. This final rule implements the provisions from the 
September 27, 2011, proposed rule, except for the proposed regulatory 
change to add a geographical split for lingcod at 42[deg] N. latitude. 
As a consequence, this final rule makes no changes to area-specific 
management of lingcod, and lingcod continue to be managed as a 
coastwide stock in 2012.
    A discussion of the comments and NMFS's responses can be found in 
the Changes from the Proposed Rule and Comments and Responses section 
of this final rule. See the preamble to the proposed rule for 
additional background information on the fishery and on this final 
rule. The specifics associated with the development and decision making 
processes for the rebuilding plans in

[[Page 77416]]

Secretarial Amendment 1 can be found in the proposed rule (75 FR 67810, 
November 3, 2010) and final rule (75 FR 27508, May 11, 2011) for the 
2011-2012 harvest specifications and management measures.

Background

    Every other year, the Council recommends biennial harvest levels 
for Pacific Coast groundfish, and management measures for commercial 
and recreational fisheries that are designed to achieve those harvest 
levels. For the 2011-2012 biennium, the Council recommended Amendment 
16-5 to the PCGFMP and proposed specifications and management measures. 
Amendment 16-5 included one new and seven revised rebuilding plans, and 
new reference points for assessed flatfish species. A Draft 
Environmental Impact Statement (DEIS) was published in August 2010 that 
analyzed the effects of Amendment 16-5 and the 2011-2012 groundfish 
harvest specifications and management measures. NMFS reviewed the DEIS 
and the comments and concluded that the analysis did not clearly 
explain the alternatives in such a way that NMFS could choose among 
them. Therefore, NMFS disapproved the Amendment on December 27, 2010. A 
Final Environmental Impact Statement (FEIS), which analyzed the effects 
of Amendment 16-5 and the 2011-2012 groundfish harvest specifications 
and management measures, was drafted by NMFS and a Record of Decision 
was signed on April 26, 2011.
    Because management measures were needed for the 2011 fishery, NMFS 
published a final rule (75 FR 27508, May 11, 2011) establishing harvest 
specifications and management measures for most species. Pursuant to 
NFMS' emergency authority under section 305(c) of the Magnuson-Stevens 
Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq., 
NMFS implemented the specifications based on a slightly modified 
version of Amendment 16-5. Accordingly, the provisions can be effective 
for a maximum of 366 days. For more detail, see the ``Comments and 
Responses'' section of the May 11, 2011, final rule. (76 FR 27509). The 
provisions implemented pursuant to emergency authority for 2011 
included the rebuilding plans and corresponding harvest levels, new 
proxy reference points for assessed flatfish species, and the 
Overfishing Limits (OFLs), Acceptable Biological Catches (ABCs), and 
Annual Catch Limits (ACLs) for assessed flatfish based on the new 
reference points.

Regulations Implemented Through Secretarial Authority and Secretarial 
FMP Amendment 1

    Under MSA section 304(a) (16 U.S.C. 1854(c)), when the Secretary of 
Commerce (the Secretary) disapproves of a Council's FMP amendment, the 
Council may resubmit a revised amendment. If the Council does not 
submit a revised amendment, the Secretary, acting through NMFS, is 
authorized to prepare an amendment, 16 U.S.C. 1854(c)(1).
    Because NMFS disapproved the Council's FMP amendment, the issue was 
brought before the Council for reconsideration and further action. In 
June 2011, the Council decided not to resubmit a revised amendment. 
NMFS therefore drafted Secretarial Amendment 1 to the FMP pursuant to 
section 304(c) of the MSA. The notice of availability for the amendment 
published on September 9, 2011 (75 FR 55865) and the comment period 
closed on November 8, 2011.
    Secretarial Amendment 1 is a revised version of Amendment 16-5. It 
contains rebuilding plans that differ from those in the Council's 
Amendment 16-5 for three species. As with rebuilding plans approved and 
implemented for 2011, NMFS has determined that these plans are 
consistent with the statutory provisions of section 304(e) of the MSA. 
While a Secretarial Amendment is rare, the substance of this Amendment 
is routine and it implements provisions through notice and comment 
rulemaking that were previously created by emergency action. As stated 
above, this final rule updates the regulations at 50 CFR part 660 to 
establish new and revised rebuilding plans, establish the 2012 harvest 
specifications consistent with those rebuilding plans and new flatfish 
proxies, and calculate the resulting shorebased trawl allocations.
    Secretarial Amendment 1 also makes some non-substantive structural 
changes to the PCGFMP by moving the descriptions of rebuilding plans 
and associated text to an appendix. These changes make it possible to 
update the rebuilding plans in the appendix without requiring an FMP 
amendment. The FMP still requires these changes to undergo notice and 
comment rule making. Moving the rebuilding plans helps ensure that they 
are easily accessible to the Council, agency, and members of the 
public. Currently, the PCGFMP allows the updating of rebuilding 
parameters, such as the target year to rebuild, through regulatory 
amendments rather than FMP amendments. However, the exact provisions of 
the rebuilding plans are frequently difficult to locate because they 
are imbedded in the rule's text and in the main body of the FMP. By 
moving text to an appendix, Secretarial Amendment 1 does not change any 
substantive rebuilding policies or procedures described in the PCGFMP. 
Rather, it enhances the public's access to current rebuilding plans; if 
a rebuilding parameter or other element of a rebuilding plan changes 
through the biennial harvest specifications and management process, the 
appendix would be updated after the final rule is in place without a 
separate FMP amendment.

Regulations Implemented Through Routine Rulemaking

    In addition to the regulations implementing Secretarial Amendment 
1, this final rule includes one regulatory change. This rule corrects 
the 2012 limited entry fixed gear sablefish tier limits. On May 18, 
2011, NMFS was notified by the Executive Director of the Council that 
there was a mistake in the calculation of the 2011 and 2012 sablefish 
cumulative limits during the development of the 2011-2012 biennial 
specifications and management measures. The Executive Director 
requested that NMFS correct the sablefish cumulative limits for the 
limited entry fixed gear primary fishery as quickly as possible, 
because the 2011 primary fishery season opened on April 1, and some 
vessels were actively fishing on their cumulative limits. A previous 
rule (76 FR 34910, June 15, 2011) corrected the limits for 2011, but no 
correction was made for 2012. These limits were incorrect in the May 
11, 2011, final rule, and therefore this rule corrects these limits for 
2012.
    The limits proposed in this rule are consistent with the analysis 
in the FEIS on the 2011-2012 Harvest Specifications and Management 
Measures and the intent of the previously published regulations. The 
tier limits corrected through this rule are the result of a minor 
calculation change and do not reflect a policy or management shift in 
regards to season structure, opening or closing dates of the fishery or 
any other management measure.

Comments and Responses

    NMFS published an NOA for Secretarial Amendment 1 on September 9, 
2011, (76 FR 55865) and a proposed rule on September 27, 2011 (76 FR 
59634). Both comment periods closed on November 8, 2011. NMFS received 
4 comments on the proposed rule and FMP amendment. The Department of 
the Interior submitted a letter stating

[[Page 77417]]

that they reviewed the FMP amendment and had no comments, no other 
comments were received on the FMP amendment. The remaining comments 
were all on the proposed rule and were all in response to the proposed 
implementation of a geographical split for lingcod at 42[deg] N. 
latitude. The Council submitted a letter stating that the effects of 
this change on the trawl rationalization program would result in 
negative consequences (that are summarized below), and therefore this 
regulation change should not be made for the 2012 fishery but should be 
further explored through the 2013-2014 harvest specifications and 
management measures process. The two other letters were submitted by 
fishing industry representatives and individual fishermen. The two 
letters from the industry also stated that the full consequences of 
this regulation change had not been fully understood by the industry 
during the development of the trawl rationalization program. Because 
the substantive comments were very similar, the main points are 
summarized here.
    Comments:
     The location of the 42[deg] N. latitude line runs directly 
through fishing grounds, causing fishermen to use a greater amount of 
fuel and removing the flexibility to avoid adverse weather since they 
would be restricted to one area per trip.
     This change in regulation is occurring without knowledge 
of the fishing fleet and without discussion by the Council and its 
advisory bodies.
     Splitting quota share (QS) north and south of a new line 
will result in the same amount of quota being allocated to each quota 
share holder; however, the vessel accumulation limits are not going to 
change so quota share holders will not be able to trade quota north and 
south of the line, limiting their flexibility in how they manage their 
Quota Pound (QP).
    Response: As noted above, NMFS is not implementing the lingcod 
geographic split, and is referring the issue back to the Council for 
further consideration. The Council has already added this issue for 
consideration in the 2013-2014 specifications.
    As background, NMFS notes that the requirement for IFQ species 
matching the species groupings and area subdivisions specified in the 
ABC tables was implemented through Amendment 20 to the FMP. Amendment 
20 was implemented through an extensive and intensive review and 
regulatory deeming process. The deeming process, a requirement of 
section 303(c) of the MSA, consisted of a thorough review by the 
Council and its advisory bodies of the FMP amendment and the 
regulations implementing the amendment. Further, the Executive Director 
of the Council submitted a letter to NMFS stating that the regulations 
and FMP amendment were necessary and appropriate to achieve the goals 
of the FMP.
    The geographic split for the lingcod stock was in front of the 
Council at its March, April, June, and September 2010 meetings in draft 
FMP language and draft regulations under the trawl rationalization 
program agenda items. It was also reviewed by the Council's Regulatory 
Deeming Workgroup at their February, May, and June 2010 meetings. This 
requirement was available for public comment through the NOA for 
Amendment 20 and 21 (75 FR 26702, May 12, 2010), and two rulemakings 
(75 FR 32994, June 10, 2010 and 75 FR 53380, August 31, 2010). In 
addition, the Council considered the provision to split lingcod north 
and south of 42[deg] N. latitude in the ABC tables at its April and 
June 2010 meetings under the harvest specifications agenda item. The 
GMT report at the September 2010 meeting under the trawl 
rationalization program agenda item recommended splitting lingcod north 
and south of 42[deg] N. latitude for IFQ management to reflect action 
taken in the 2011-2012 harvest specifications.
    For these reasons, NMFS disagrees with the comment that the public 
was not aware of the requirement for IFQ species to reflect the species 
groupings and area subdivisions from the harvest specifications (i.e., 
ABC tables), including the requirement for reallocation of IFQ species 
when there is an area subdivision through the harvest specifications, 
such as the case with lingcod being split north and south of 42[deg] N. 
latitude in the 2011 and 2012 ABC tables.
    However, NMFS agrees that it is appropriate to remove the proposed 
geographical split from the final rule. Given that this change was not 
implemented in 2011 because of the delay in the specifications and 
because the initial issuance process for the trawl rationalization 
program was implemented earlier in the year, we believe issuing QP and 
QS in 2012 in the same way as 2011 will not disrupt the fishery. 
Further, given that QS trading doesn't start until 2013, NMFS believes 
not implementing this change will allow fishers more flexibility for 
2012.

Changes From the Proposed Rule

    Because of the issues raised by the commenters and in consideration 
of the fact that the suggestions for alternative approaches presented 
by the commenters have not been analyzed nor have they gone through 
public review or rule making, NMFS is withdrawing proposed changes to 
divide harvest specifications for lingcod at 42[deg] N. latitude. This 
final rule makes no changes to area-specific management of lingcod, and 
lingcod will continue to be managed as a coastwide stock in 2012 and 
beyond. Therefore, this final rule does not revise any of the following 
regulations that were included in the proposed rule: the lingcod 
allocation for the Pacific coast treaty Indian fisheries at Sec.  
660.50(f)(3), Subpart C, which was proposed to apply only for the area 
north of 42[deg] N. lat.; the at-sea whiting fishery annual set-aside 
for lingcod in Table 2d to Part 660, Subpart C, which was proposed to 
apply the set-aside to only the whiting fishery north of 42[deg] N. 
lat.; the list of IFQ species at Sec.  660.140(c)(1), which proposed to 
split lingcod from a coastwide IFQ species to two IFQ species, lingcod 
north of 42[deg] N. lat. and lingcod south of 42[deg] N. lat.; the list 
of IFQ management areas at Sec.  660.140(c)(2), Subpart D, which 
proposed to add a new management area between 42[deg] N. lat. and 
40[deg]10' N. lat. due to the split of lingcod IFQ at 42[deg] N. lat.; 
lingcod accumulation limits for the shorebased IFQ program at Sec.  
660.140 (d)(4)(i)(C), which proposed to split lingcod from a coastwide 
accumulation limit to two area-specific accumulation limits for 
lingcod; and lingcod quota pound vessel limits for the shorebased IFQ 
program at Sec.  660.140 (e)(4)(i), which proposed to split lingcod 
from a coastwide quota pound vessel limit to two area-specific quota 
pound vessel limits for lingcod. In addition, the shorebased trawl 
allocations at Sec.  660.140(d)(1)(ii)(D), Subpart D, no longer split 
lingcod at 42[deg] N. lat. and instead present lingcod in terms of a 
coastwide value.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Secretarial Amendment 1, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a DEIS and FEIS for the 2011-2012 groundfish harvest 
specifications and management measures, which this action implements in 
part. The DEIS includes a RIR and an IRFA; the FEIS includes a FRFA. 
The Environmental Protection Agency

[[Page 77418]]

published a notice of availability for the final EIS associated with 
this action on March 11, 2011 (76 FR 13401). A record of decision was 
signed on April 26, 2011. A copy of the DEIS and/or FEIS is available 
online at http://www.pcouncil.org/.
    NMFS also prepared a FRFA for this action to assess its impact on 
small entities. The FRFA incorporates the initial regulatory 
flexibility analysis (IRFA), summarizes the significant issues raised 
by the public comments in response to the IRFA, responds to those 
comments, and summarizes of the analyses completed to support the 
action. A copy of the FRFA is available from NMFS (see ADDRESSES) and a 
summary of the FRFA, per the requirements of 5 U.S.C. 604(a), follows:
    On May 11, 2011 NMFS published a final rule establishing the 
harvest specifications and management measures for most species off the 
U.S. West Coast for the years 2011 and 2012. When a rule impacts small 
entities, the Regulatory Flexibility Act requires that the agency 
issuing the rule assess that impact as well as alternatives to the 
rule. The FEIS and RIR/IRFA associated with the May 2011 rule analyze a 
range of alternatives that were considered by the Council and NMFS, 
including the effects of setting allowable harvest levels necessary to 
rebuild the seven groundfish species that were previously declared 
overfished. An eighth species, petrale sole, was declared overfished in 
2010 and this action includes a new rebuilding plan for this species 
along with the ACLs and management measures consistent with the adopted 
rebuilding plan. Associated rebuilding analyses for all eight species 
estimate the time to rebuild under various levels of harvest.
    NMFS considered various alternatives to the proposed action 
including a No Action alternative. The No Action alternative would 
maintain the status quo in the fishery prior to NMFS' implementing the 
emergency rules. NMFS also considered three other alternatives that 
presented ``low,'' ``intermediate,'' and ``high'' options for 
overfished species ACLs. The Council's preferred alternative, 
Alternative 3, was also considered. The Council-preferred alternative 
was a mixture of ``high'' and ``intermediate'' alternatives. From the 
Council preferred alternative, NMFS crafted its preferred alternative 
by reducing the ACL values for two overfished species.
    The Council initially considered a wider range of alternatives, but 
ultimately rejected from further analysis alternatives allowing harvest 
levels higher than what is generally consistent with current policies 
for rebuilding overfished stocks and a ``no fishing'' scenario (F=0). 
Section 2.4 of the FEIS describes six integrated alternatives including 
No Action, the Council's FPA, NMFS' preferred alternative, and three 
other alternatives (including the Council's Preliminary Preferred 
Alternative, which is similar to the Council's FPA). NMFS finds that 
the F=0 and Alternatives 1A, 1B, and 2, while resulting in shorter 
rebuilding times for most of the overfished species, lead to projected 
major decreases in commercial revenues and recreational activity. 
Allowing too many communities to suffer commercial or recreational 
losses greater than 10 percent fails to take into account the needs of 
fishing communities, as NMFS is required to do under the MSA. 
Alternative 3, the Council FPA, and NMFS' preferred alternative all 
reduce the impacts to communities to less than 10 percent, but they 
differ in their impacts on rebuilding times. Alternative 3 reduces 
rebuilding times from status quo for many of the overfished species, 
but does not reduce the rebuilding time for yelloweye rockfish, and 
results in only minor reductions for cowcod and darkblotched and 
rockfish. The Council's FPA improves upon Alternative 3 by reducing the 
rebuilding time for darkblotched rockfish by two years while 
maintaining Alternative 3's small positive increases in commercial 
revenues and recreational activity. The NMFS preferred alternative 
improves over the Council FPA by further reducing the rebuilding times 
of cowcod and yelloweye by three years and ten years, respectively.
    Comparing the action alternatives with the No Action alternative 
allows an evaluation of the economic implications to groundfish 
sectors, ports, and fishing communities. Alternative 2011-2012 
groundfish management measures are designed to provide opportunities to 
harvest healthy target species within the constraints of alternative 
ACLs for overfished species.
    The integrated alternatives allow estimation of target species 
catch under the suite of ACLs for overfished species, both to 
demonstrate if target species ACLs are projected to be exceeded, and to 
estimate related socioeconomic impacts. The Council reviewed these 
analyses and read and heard testimony from Council advisors, fishing 
industry representatives, representatives from non-governmental 
organizations, and the general public before deciding the Council's FPA 
in June 2010. The Council's final preferred management measures are 
intended to stay within all the final recommended harvest levels for 
groundfish species decided by the Council at their April and June 2010 
meetings. NMFS reviewed these analyses, read and heard testimony from 
Council advisors, fishing industry representatives, representatives 
from non-governmental organizations, the general public, and considered 
legal obligations to comply with a court order (NRDC v. Locke) before 
deciding NMFS' preferred alternative in February 2011. The NMFS 
preferred management measures are intended to stay within all the final 
recommended harvest levels for groundfish species that were part of the 
NMFS preferred alternative.
    NMFS' preferred alternative represents efforts to address the 
directions provided by the Ninth Circuit Court of Appeals. These 
directions emphasize the need to rebuild stocks in as short a time as 
possible, while taking into account: (1) The status and biology of the 
stocks; (2) the needs of fishing communities; and (3) interactions of 
depleted stocks within the marine ecosystem. By taking into account the 
``needs of fishing communities,'' NMFS simultaneously takes into 
account the ``needs of small businesses,'' as fishing communities rely 
on small businesses as a source of economic activity and income.
    After adjusting each alternative to have the same level of whiting 
harvest, there are no differences in ex-vessel revenue or recreational 
trip projections between the Council's FPA and the NMFS preferred 
alternative. For both 2011 and 2012, the combined total annual ex-
vessel revenue associated with the NMFS preferred alternative, 
including at-sea whiting, is expected to be about $90 million, compared 
with the No-Action level of $82 million. (Note that ex-vessel revenue 
is just one indicator of the commercial value of the fishery. For 
example, ex-vessel revenues understate the wholesale, export, and 
retail revenues earned from the fishery. Data on these other indicators 
is either incomplete or unavailable.)
    This rule will regulate small businesses that harvest groundfish. 
According to the Small Business Administration, a small commercial fish 
harvesting business is one that has annual receipts under $4 million, 
and a small charter boat business is one that has annual receipts under 
$7 million. This rule will affect about 2,600 small entities, which are 
generally vessels that either target groundfish or harvest groundfish 
as bycatch and that participate in the fishery. These vessels are 
associated with the limited entry fixed gear fishery, the open access 
fishery, the charter boat fleet, the tribal fleet or the trawl fleet. 
To determine the

[[Page 77419]]

number of small entities potentially affected by this rule, NMFS 
reviewed analyses of fish ticket data and limited entry permit data, 
available employment data provided by processors, information on the 
charterboat and Tribal fleets, and industry responses to a survey on 
vessel ownership. The IRFA estimates that implementation of NMFS 
preferred alternative will affect about 2,600 small entities. These 
small entities are those that are directly regulated by this rule that 
is being promulgated to support implementation of NMFS preferred 
alternative. These entities are associated with those vessels that 
either target groundfish or harvest groundfish as bycatch. 
Consequently, these are the vessels, other than catcher-processors, 
that participate in the limited entry portion of the fishery, the open 
access fishery, the charter boat fleet, and the tribal fleets. Catcher/
processors also operate in the Alaska pollock fishery, and all are 
associated with larger companies such as Trident and American Seafoods. 
Therefore, it is assumed that all catcher/processors are ``large'' 
entities.
    Best estimates of the limited entry groundfish fleet are taken from 
the NMFS Limited Entry Permits Office. As of June 2010, there are 399 
limited entry permits including 177 endorsed for trawl (172 trawl only, 
4 trawl and longline, and 1 trawl and trap-pot); 199 endorsed for 
longline (191 longline only, 4 longline and trap-pot, and 4 trawl and 
longline); 32 endorsed for trap-pot (27 trap-pot only, 4 longline and 
trap-pot, and 1 trawl and trap-pot). Of the longline and trap-pot 
permits, 164 are sablefish endorsed. Of these endorsements 130 are 
``stacked'' (e.g. more than one permit registered to a single vessel) 
on 50 vessels. Ten of the limited entry trawl endorsed permits are used 
or owned by catcher/processor companies associated with the whiting 
fishery. The remaining 389 entities are assumed to be small businesses 
based on a review of sector revenues and average revenues per entity. 
The open access or nearshore fleet, depending on the year and level of 
participation, is estimated to be about 1,300 to 1,600 vessels. Again, 
these are assumed to be ``small entities.'' The tribal fleet includes 
about 53 vessels, and the charter boat fleet includes 525 vessels that 
are also assumed to be ``small entities.''
    The effect of this rule on small entities will be increased ex-
vessel revenues. As mentioned above, for both 2011 and 2012, the 
combined total annual ex-vessel revenue associated with the NMFS 
preferred alternative, including at-sea whiting, is expected to be 
about $90 million, compared with the No-Action level of $82 million.
    NMFS received 4 letters of comment on this rule. None of these 
letters addressed the IRFA. There are no additional projected 
reporting, record-keeping, and other compliance requirements of this 
rule not already envisioned within the scope of current requirements. 
References to collections-of-information made in this action are 
intended to properly cite those collections in Federal regulations, and 
not to alter their effect in any way. No Federal rules have been 
identified that duplicate, overlap, or conflict with this action.
    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 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.
    NMFS has reinitiated consultation on the fishery to address newly 
listed species including Pacific eulachon and green sturgeon, and other 
non-salmonid listed species (marine mammals, sea birds, and turtles). 
NMFS will be completing a consultation on listed marine species 
specifically for this 2012 action by the end of January 2012, and 
expects that consultation on seabirds will be completed prior to late 
summer of 2012. Although not anticipated, in the event the 
consultations identify either reasonable and prudent alternatives to 
address jeopardy concerns or reasonable and prudent measures to 
minimize incidental take, NMFS would exercise necessary authorities in 
coordination to the extent possible with the Pacific Fishery Management 
Council to put such additional alternatives or measures in place for 
the 2012 fishery.
    After reviewing the available information, NMFS has concluded that, 
consistent with sections 7(a)(2) and 7(d) of the ESA, this action will 
not jeopardize any listed species, would not adversely modify any 
designated critical habitat, and will 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. Further, NMFS has concluded that take of 
any marine species that will be covered by the opinion to be issued in 
early 2012 is very unlikely to occur prior to completion of that 
opinion, and that take of listed seabirds is unlikely to occur in 2012. 
NMFS expects to complete the process leading to any necessary 
authorization of incidental taking of ESA-listed marine mammals under 
section 101(a)(5)(E) of the Marine Mammal Protection Act concurrent 
with the 2012 biological opinion.
    Pursuant to Executive Order 13175, this final rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the PCGFMP. Under the Magnuson-Stevens Act at 
16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
is be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction. In 
addition, regulations implementing the PCGFMP establish a procedure by 
which the tribes with treaty fishing rights in the area covered by the 
PCGFMP request new allocations or

[[Page 77420]]

regulations specific to the tribes, in writing, before the first of the 
two meetings at which the Council considers groundfish management 
measures. The regulations at 50 CFR 660.324(d) further state ``the 
Secretary will develop tribal allocations and regulations under this 
paragraph in consultation with the affected tribe(s) and, insofar as 
possible, with tribal consensus.''
    NMFS finds good cause to partially waive the 30-day delay in 
effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule 
may become effective on January 1, 2012, because the delay is contrary 
to the public interest. As discussed above, this rule implements 
harvest specifications and management measures for 2012. The 2012 
groundfish harvest specifications and management measures are intended 
to rebuild overfished stocks as quickly as possible, taking into 
account the appropriate factors, as required by the MSA and are based 
on the best available fishery information, scientific information, and 
stock assessments. If this final rule is not effective by January 1, 
2012, specifications and management measures for 2012 would not be 
consistent with the MSA or based on the best available information. 
Further, QP issuance is based on the year specific harvest 
specifications which are contained in this rule, and must be 
distributed to participants in the trawl fishery prior to the start of 
the fishing year, which is January 1, 2012. If the rule is not 
effective on January 1, 2012, fishery participants will be afforded QP 
based on the incorrect harvest specifications. Depending on the species 
this would mean QP would be issued either over or under the correct 
2012 specifications. Because NMFS does not have a mechanism to take QP 
back if it was issued over the correct 2012 specifications this could 
mean QP issuance would be delayed until the 2012 specifications were in 
place. This would cause some fishermen to wait to fish, resulting in 
lost profits, yet this delay will provide no concomitant benefit for 
the harvested species. Because the 30-day period of delay before this 
rule becomes effective will have negative consequences for the affected 
fishery, it is contrary to the public interest, and NMFS finds good 
cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 
553(d)(3), so that this final rule may become effective January 1, 
2012.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian Fisheries.

    Dated: December 7, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    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., 16 U.S.C. 773 et seq., and 16 
U.S.C. 7001 et seq.


0
2. Revise Sec.  660.40 to read as follows:


Sec.  660.40  Overfished species rebuilding plans.

    For each overfished groundfish stock with an approved rebuilding 
plan, this section contains the standards to be used to establish 
annual or biennial ACLs, specifically the target date for rebuilding 
the stock to its MSY level and the harvest control rule to be used to 
rebuild the stock. The harvest control rule is expressed as a 
``Spawning Potential Ratio'' or ``SPR'' harvest rate.
    (a) Bocaccio. Bocaccio south of 40[deg]10' N. latitude was declared 
overfished in 1999. The target year for rebuilding the bocaccio stock 
south of 40[deg]10' N. latitude to BMSY is 2022. The harvest 
control rule to be used to rebuild the southern bocaccio stock is an 
annual SPR harvest rate of 77.7 percent.
    (b) Canary rockfish. Canary rockfish was declared overfished in 
2000. The target year for rebuilding the canary rockfish stock to 
BMSY is 2027. The harvest control rule to be used to rebuild 
the canary rockfish stock is an annual SPR harvest rate of 88.7 
percent.
    (c) Cowcod. Cowcod was declared overfished in 2000. The target year 
for rebuilding the cowcod stock south of 40[deg]10' N. latitude to 
BMSY is 2068. The harvest control rule to be used to rebuild 
the cowcod stock is an annual SPR harvest rate of 82.7 percent.
    (d) Darkblotched rockfish. Darkblotched rockfish was declared 
overfished in 2000. The target year for rebuilding the darkblotched 
rockfish stock to BMSY is 2025. The harvest control rule to 
be used to rebuild the darkblotched rockfish stock is an annual SPR 
harvest rate of 64.9 percent.
    (e) Pacific Ocean Perch (POP). POP was declared overfished in 1999. 
The target year for rebuilding the POP stock to BMSY is 
2020. The harvest control rule to be used to rebuild the POP stock is 
an annual SPR harvest rate of 86.4 percent.
    (f) Petrale Sole. Petrale sole was declared overfished in 2010. The 
target year for rebuilding the petrale sole stock to BMSY is 
2016. The harvest control rule is the 25-5 default adjustment, which 
corresponds to an annual SPR harvest rate of 32.4 percent in 2012.
    (g) Widow rockfish. Widow rockfish was declared overfished in 2001. 
The target year for rebuilding the widow rockfish stock to 
BMSY is 2010. The harvest control rule is a constant catch 
of 600 mt, which corresponds to an annual SPR harvest rate of 91.3 
percent in 2012.
    (h) Yelloweye rockfish. Yelloweye rockfish was declared overfished 
in 2002. The target year for rebuilding the yelloweye rockfish stock to 
BMSY is 2074. The harvest control rule to be used to rebuild 
the yelloweye rockfish stock is an annual SPR harvest rate of 76.0 
percent.

0
3. Tables 2a and 2b, to Part 660, Subpart C are revised to read as 
follows:
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0
4. In Sec.  660.140 revise paragraph (d)(1)(ii)(D) to read as follows:


Sec.  660.140  Shorebased IFQ Program.

* * * * *
    (d) * * *
    (1) * * *
    (ii) * * *
    (D) For the 2012 trawl fishery, NMFS will issue QP based on the 
following shorebased trawl allocations:

------------------------------------------------------------------------
                                                       Shorebased trawl
           IFQ Species              Management area    allocation  (mt)
------------------------------------------------------------------------
Lingcod.........................  ..................             1810.65
Pacific cod.....................  ..................            1,135.00
Pacific Whiting.................  ..................                 TBD
Sablefish.......................  North lat. of                 2,467.00
                                   36[deg] N.
Sablefish.......................  South lat. of                   514.08
                                   36[deg] N.
Dover sole......................  ..................           22,234.50
English sole....................  ..................            9,542.50
Petrale sole....................  ..................            1,054.60
Arrowtooth flounder.............  ..................            9,462.45
Starry flounder.................  ..................              671.50
Other flatfish..................  ..................            4,197.40
Pacific Ocean perch.............  North lat. of                   119.50
                                   40[deg]10' N.
Widow rockfish..................  ..................              342.62
Canary rockfish.................  ..................               26.20
Chilipepper rockfish............  South lat. of                 1,331.25
                                   40[deg]10' N.
Bocaccio rockfish...............  South lat. of                    60.00
                                   40[deg]10' N.
Splitnose rockfish..............  South lat. of                 1,454.45
                                   40[deg]10' N.
Yellowtail rockfish.............  North lat. of                 3,107.36
                                   40[deg]10' N.
Shortspine thornyhead...........  North lat. of                 1,415.45
                                   34[deg]27' N.
Shortspine thornyhead...........  South lat. of                    50.00
                                   34[deg]27' N.
Longspine thornyhead............  North lat. of                 1,914.00
                                   34[deg]27' N.
Cowcod..........................  South lat. of                     1.80
                                   40[deg]10' N.
Darkblotched rockfish...........  ..................              248.94
Yelloweye rockfish..............  ..................                0.60
Minor shelf rockfish complex....  North lat. of                   522.00
                                   40[deg]10' N.
Minor shelf rockfish complex....  South lat. of                    86.00
                                   40[deg]10' N.
Minor slope rockfish complex....  North lat. of                   829.52
                                   40[deg]10' N.
Minor slope rockfish complex....  South lat. of                   377.37
                                   40[deg]10' N.
------------------------------------------------------------------------

* * * * *

0
5. In Sec.  660.231 paragraph (b)(3)(i) is revised to read as follows:


Sec.  660.231  Limited entry fixed gear sablefish primary fishery.

* * * * *
    (b) * * *
    (3) Cumulative limits. (i) A vessel participating in the primary 
season will be constrained by the sablefish cumulative limit associated 
with each of the permits registered for use with that vessel. During 
the primary season, each vessel authorized to fish in that season under 
paragraph (a) of this section may take, retain, possess, and land 
sablefish, up to the cumulative limits for each of the permits 
registered for use with that vessel (i.e., stacked permits). If 
multiple limited entry permits with sablefish endorsements are 
registered for use with a single vessel, that vessel may land up to the 
total of all cumulative limits announced in this paragraph for the 
tiers for those permits, except as limited by paragraph (b)(3)(ii) of 
this section. Up to 3 permits may be registered for use with a single 
vessel during the primary season; thus, a single vessel may not take 
and retain, possess or land more than 3 primary season sablefish 
cumulative limits in any one year. A vessel registered for use with 
multiple limited entry permits is subject to per vessel limits for 
species other than sablefish, and to per vessel limits when 
participating in the daily trip limit fishery for sablefish under Sec.  
660.232, subpart E. In 2011, the following annual limits are in effect: 
Tier 1 at 47,697 lb (21,635 kg), Tier 2 at 21,680 lb (9,834 kg), and 
Tier 3 at 12,389 lb (5,620 kg). For 2012 and beyond, the following 
annual limits are in effect: Tier 1 at 46,238 lb (21,017 kg), Tier 2 at 
21,017 lb (9553 kg), and Tier 3 at 12,010 lb (5,459 kg).
* * * * *

[FR Doc. 2011-31975 Filed 12-12-11; 8:45 am]
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