[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Proposed Rules]
[Pages 10466-10471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4113]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120207106-2105-01]
RIN 0648-BB85


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2012 Tribal Fishery for Pacific 
Whiting

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 for the 2012 Pacific whiting 
fishery under the authority of the Pacific Coast Groundfish Fishery 
Management Plan (FMP), the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 
2006. This proposed rule would establish a tribal allocation of 17.5 
percent of the U.S. total allowable catch (TAC) for 2012.
    The regulations proposed by this action would also establish a 
process for reapportionment of unused tribal allocation of Pacific 
whiting to the non-tribal fisheries.

DATES: Comments on this proposed rule must be received no later than 5 
p.m., local time on March 23, 2012.

ADDRESSES: You may submit comments, identified by RIN 0648-BB85 by any 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal, at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter (RIN Number) in 
the keyword search. Locate the document you wish to comment on from the 
resulting list and click on the ``Submit a Comment'' icon on the right 
of that line.
     Fax: 206-526-6736, Attn: Kevin C. Duffy.
     Mail: William W. Stelle, Jr., Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070, Attn: Kevin C. Duffy.
    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 (if submitting comments via the 
Federal Rulemaking portal, enter ``N/A'' in the relevant required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region, 
NMFS), phone: 206-526-4743, fax: 206-526-6736 and email: 
[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.gpo.gov/fdsys/search/home.action. Background information and documents are available at the 
Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

Background

    The regulations at 50 CFR 660.50(d) establish the process by which 
the tribes with treaty fishing rights in the area

[[Page 10467]]

covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) 
request new allocations or regulations specific to the tribes, in 
writing, during the biennial harvest specifications and management 
measures process. The regulations state that ``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.'' These procedures employed by NOAA in implementing 
tribal treaty rights under the FMP, in place since May 31, 1996, were 
designed to provide a framework process by which NOAA Fisheries can 
accommodate tribal treaty rights by setting aside appropriate amounts 
of fish in conjunction with the Pacific Fishery Management Council 
(Council) process for determining harvest specifications and management 
measures. The Council's groundfish fisheries require a high degree of 
coordination among the tribal, state, and federal co-managers in order 
to rebuild overfished species and prevent overfishing, while allowing 
fishermen opportunities to sustainably harvest over 90 species of 
groundfish managed under the FMP.
    Since 1996, NMFS has been allocating a portion of the U.S. TAC 
(called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) 
of Pacific whiting to the tribal fishery following the process 
established in 50 CFR 660.50(d). The tribal allocation is subtracted 
from the U.S. Pacific whiting TAC before allocation to the non-tribal 
sectors.
    To date, only the Makah Tribe has prosecuted a tribal fishery for 
Pacific whiting. The Makah Tribe has annually harvested a whiting 
allocation every year since 1996 using midwater trawl gear. Since 1999, 
the tribal allocation has been made in consideration of their 
participation in the fishery. In 2008 the Quileute Tribe and Quinault 
Indian Nation expressed an interest in commencing participation in the 
whiting fishery. Tribal allocations for 2009-2011 were based on 
discussions with all three tribes regarding their intent for those 
fishing years. The table below provides a history of U.S. OYs/ACLs and 
the annual tribal allocation in metric tons (mt).

------------------------------------------------------------------------
                                                              Tribal
                  Year                     U.S. OY (mt)     allocation
                                                               (mt)
------------------------------------------------------------------------
2000....................................         232,000          32,500
2001....................................         190,400          27,500
2002....................................         129,600          22,680
2003....................................         148,200          25,000
2004....................................         250,000          32,500
2005....................................         269,069          35,000
2006....................................         269,069          32,500
2007....................................         242,591          35,000
2008....................................         269,545          35,000
2009....................................         135,939          50,000
2010....................................         193,935          49,939
2011....................................         290,903          66,908
------------------------------------------------------------------------

    Prior to publication of the regulations for the 2011-2012 harvest 
specification biennial cycle, all three tribes mentioned above 
indicated their intent to participate at some point during this 
biennium. The Quinault Nation indicated that they were interested in 
entering the fishery in 2011, and both the Quileute and Makah Tribes 
indicated they intended to fish in both 2011 and 2012. Only the Makah 
tribe participated in the fishery in 2011. Based on exchanges with the 
tribes during November 2011, and again in January 2012, it appears that 
only the Makah tribe will participate in the Pacific whiting fishery in 
2012.
    Since 2008, NMFS and the co-managers, including the States of 
Washington and Oregon, as well as the Treaty tribes, have been involved 
in a process designed to determine the long-term tribal allocation for 
Pacific whiting. At the September 2008 Council meeting, NOAA, the 
states and the Quinault, Quileute, and Makah tribes met and agreed on a 
process in which NOAA would provide to the tribes and states of 
Washington and Oregon a summary of the current scientific information 
regarding whiting, receive comment on the information and possible 
analyses that might be undertaken, and then prepare analyses of the 
information to be used by the co-managers (affected tribes, affected 
states, and NMFS) in developing a tribal allocation for use in 2010 and 
beyond. The goal was agreement among the co-managers on a long-term 
tribal allocation for incorporation into the Council's planning process 
for the 2010 season. An additional purpose was to provide the tribes 
the time and information to develop an inter-tribal allocation or other 
necessary management agreement. In 2009, NMFS shared a preliminary 
report summarizing scientific information available on the migration 
and distribution of Pacific whiting on the west coast. The co-managers 
met in 2009 and discussed this preliminary information.
    In 2010, NMFS finalized the report summarizing scientific 
information available on the migration and distribution of Pacific 
whiting on the west coast. In addition, NMFS responded in writing to 
requests from the tribes for clarifications on the paper and requests 
for additional information. NMFS also met with each of the tribes in 
the fall of 2010 to discuss the report and to discuss a process for 
negotiation of the long-term tribal allocation of Pacific whiting.
    In 2011, NMFS again met individually with the Makah, Quileute, and 
Quinault tribes to discuss these matters. Due to the detailed nature of 
the evaluation of the scientific information, and the need to negotiate 
a long-term tribal allocation following completion of the evaluation, 
the process is continuing and will not be completed prior to the 2012 
Pacific whiting fishery; thus the tribal allocation of whiting for 2012 
will not reflect a negotiated long-term tribal allocation. Instead, it 
is an interim allocation not intended to set precedent for future 
allocations.

Tribal Allocation for 2012

    It is necessary to propose a range for the tribal allocation, 
rather than a specific allocation amount, because the specific 
allocation depends on the amount of the coastwide TAC (United States 
plus Canada) and corresponding U.S. TAC for 2012 (73.88% of the 
coastwide TAC). The Joint Management Committee (JMC), which is 
established pursuant to the -- Agreement between the Government of the 
United States of America and the Government of Canada on Pacific Hake/
Whiting -- (the Agreement), is anticipated to recommend the coastwide 
and corresponding U.S./Canada TACs no later than March 25, 2012.
    In the final Environmental Impact Statement (FEIS) addressing the 
groundfish fishery for the 2011 and 2012 harvest specifications and 
management measures, a range of 50 to 150 percent of the 2010 coastwide 
harvest level was analyzed.
    The Council adopted a coastwide Overfishing Limit (OFL) of 973,700 
mt for 2011 fisheries using the model-averaged results as recommended 
by the Council's Scientific and Statistical Committee (SSC). The 
Council recommended a coastwide harvest level of 393,751 mt for 2011 
fisheries. Consistent with the terms of the Agreement, the U.S. 
allocation of the coastwide harvest level is 73.88 percent, which 
equated to 290,903 mt for 2011.
    In order for the public to have an understanding of the potential 
tribal whiting allocation in 2012, NMFS is using the range of potential 
TACs analyzed in the 2011 FEIS to project a range of potential tribal 
allocations for 2012. Application of this range for 2011

[[Page 10468]]

resulted in a potential U.S. TAC of between 96,969 mt and 290,903 mt.
    As described above, based on exchanges with the tribes during 
November 2011, and more recently in January, 2012, it appears that only 
the Makah tribe will participate in the Pacific whiting fishery in 
2012, and they have requested 17.5% of the U.S. TAC. Application of 
this percentage to the range of U.S. TACs results in a tribal 
allocation of between 16,970 and 50,908 mt for 2012. NMFS believes that 
the current scientific information regarding the distribution and 
abundance of the coastal Pacific whiting stock suggests that 17.5 
percent of the U.S. TAC is within the range of the tribal treaty right 
to Pacific whiting.
    As described earlier, NOAA Fisheries proposes this rule as an 
interim allocation for the 2012 tribal Pacific whiting fishery. As with 
past allocations, this proposed rule is not intended to establish any 
precedent for future whiting seasons or for the long-term tribal 
allocation of whiting.
    The proposed rule would be implemented under authority of Section 
305(d) of the Magnuson-Stevens Act, which gives the Secretary 
responsibility to ``carry out any fishery management plan or amendment 
approved or prepared by him, in accordance with the provisions of this 
Act.'' With this proposed rule, NMFS, acting on behalf of the 
Secretary, would ensure that the FMP is implemented in a manner 
consistent with treaty rights of four Northwest tribes to fish in their 
``usual and accustomed grounds and stations'' in common with non-tribal 
citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974).

Reapportionment of Pacific Whiting

    NMFS proposes to reinstate its regulatory authority to reapportion 
whiting from the tribal allocation to the non-tribal fishery when the 
tribes participating in the fishery will not take the entire tribal 
allocation during the fishing year. From 1997 through 2010, 50 CFR 
660.323(c) provided authority to NMFS to undertake such 
reapportionment. For 2011, the regulatory provisions regarding 
reapportionment of tribal whiting allocation to the non-tribal fishery 
were eliminated when regulations implementing Amendment 21 were adopted 
in support of the trawl rationalization program. Revisions to the 
groundfish regulations at Sec.  660.55 defined how ``off the top'' set-
asides for all species, including the tribal allocation of Pacific 
whiting, would be dealt with. The new provisions did not allow 
flexibility to return the ``off the top'' set asides, including those 
for Pacific whiting, to other sectors of the fishery. Following 
implementation of the catch share program, the Council had additional 
discussions about reapportionment of the tribal allocation of Pacific 
whiting. The Council recommended that NMFS reinstate reapportionment 
provisions in order to promote full utilization of the Pacific whiting 
resource. NMFS is taking action at this time to reinstate similar 
reapportionment provisions, recognizing that modifications are needed 
to fit within the new regulatory structure implemented for the IFQ 
fishery.
    By September 15 of the fishing year, the Regional Administrator 
will consider, based on discussions with tribal representatives, the 
tribal harvests to date and catch projections for the remainder of the 
year relative to the tribal allocation as specified at Sec.  660.50 of 
Pacific whiting. That portion of the tribal allocation the Regional 
Administrator determines will not be used by the end of the fishing 
year may be made available for harvest by the other sectors of the 
trawl fishery, on September 15 or as soon as practicable thereafter. 
Based on the same factors described above, the Regional Administrator 
may reapportion whiting again at a later date to ensure full 
utilization of the resource. Any reapportionment of Pacific whiting 
from the tribal to the non-tribal sectors will be distributed in a 
manner consistent with the initial allocation of Pacific whiting among 
the non-tribal sectors, with 34 percent to the catcher-processor 
sector, 24 percent to the mothership sector, and 42 percent to the 
shorebased sector.
    Current regulations at 50 CFR 660.140(d)(3)(ii)(B)(3) require that 
all Quota Pounds (QP) or Individual Bycatch Quota (IBQ) pounds from a 
Quota Share (QS) account must be transferred to one or more vessel 
accounts by September 1 of each year. This effectively closes QS 
accounts for the year.
    If the Regional Administrator makes a decision to reapportion 
Pacific whiting from the tribal to the non-tribal fishery after 
September 1 in any year, the following actions will be taken.
    NMFS will credit QS accounts with additional Pacific whiting quota 
pounds proportionally, based on the whiting QS percent for a particular 
QS permit owner and the amount of the sector reapportionment. The QS 
account transfer function will be reactivated by NMFS for a period of 
30 days to allow permit holders to transfer only Pacific whiting QP to 
vessel accounts. After 30 days, the transfer function in QS accounts 
will again be deactivated. If an additional reapportionment of Pacific 
whiting occurs, the same procedures will be followed.

Classification

    NMFS has preliminarily determined that the management measures for 
the 2012 Pacific whiting tribal fishery are consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making the final determination, will take into account 
the data, views, and comments received during the comment period.
    The Office of Management and Budget has determined that this 
proposed rule is not 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 summary of 
the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    Under the RFA, the term ``small entities'' includes small 
businesses, small organizations, and small governmental jurisdictions. 
The SBA has established size criteria for all different industry 
sectors in the US, including fish harvesting and fish processing 
businesses. A business involved in fish harvesting is a small business 
if it is independently owned and operated and not dominant in its field 
of operation (including its affiliates) and if it has combined annual 
receipts less than $4.0 million for all its affiliated operations 
worldwide. A seafood processor is a small business if it is 
independently owned and operated, not dominant in its field of 
operation, and employs 500 or fewer persons at all its affiliated 
operations worldwide. A business involved in both the harvesting and 
processing of seafood products is a small business if it meets the $4.0 
million criterion for fish harvesting operations. A wholesale business 
servicing the fishing industry is a small business if it employs 100 or 
fewer persons at all its affiliated operations worldwide. For marinas 
and charter/party boats, a small business is a business with annual 
receipts less than $7.0 million. For nonprofit organizations, the RFA 
defines a small organization as any nonprofit enterprise that is 
independently owned and operated and is not dominant in its field. The 
RFA defines small governmental jurisdictions as governments of cities, 
counties, towns, townships, villages, school districts, or

[[Page 10469]]

special districts with populations of less than 50,000.
    Over the past five years (2007 to 2011), the total whiting fishery 
(tribal and non-tribal) has averaged landings of 197,000 mt annually, 
worth $36 million in terms of ex-vessel revenues. As the U.S. OY/ACL 
has been highly variable during this time, so have landings. During 
this period, landings have ranged from 121,000 mt (2009) to 248,000 mt 
(2008). Landings for 2011 are estimated to be about 197,000 mt. Ex-
vessel revenues have also varied. Annual ex-vessel revenues have ranged 
from $14 million (2009) to $58 million (2008). Ex-vessel revenues in 
2011 were about $46 million. As landings have varied, so have prices. 
These prices are largely determined by the world market for groundfish 
as most of the whiting harvested is exported. Ex-vessel prices have 
ranged from $116 per mt (2009) to $236 per mt (2008). Average ex-vessel 
price for whiting in 2011 was $232 per mt. Note that the use of ex-
vessel values does not take into account the wholesale or export value 
of the fishery or the costs of harvesting and processing whiting into a 
finished product. NMFS does not have sufficient information to make a 
complete assessment of these values.
    The Pacific whiting fishery harvests almost exclusively Pacific 
whiting. While bycatch of other species occurs, the fishery is 
constrained by bycatch limits on key overfished species. This is a 
high-volume fishery with low ex-vessel prices per pound. This fishery 
has seasonal aspects based on the distribution of whiting off the west 
coast. The whiting fishery has four components. The shorebased fishery 
delivers their catch to processing facilities on land. Most of these 
vessels also deliver other groundfish species to shorebased plants. 
This fishery is managed under an individual fishing quota system. In 
the mothership sector, catcher vessels deliver to floating processors 
called motherships. This fishery is managed under a single mothership 
co-op--the Whiting Mothership Cooperative. The catcher-processor fleet 
consists of vessels that both catch the fish and process it aboard. 
This fishery is also managed under a co-op--the Pacific Whiting 
Conservation Cooperative.
    The fourth component of the fishery is the tribal fishery. Since 
1996, there has been a tribal allocation of the U.S. whiting TAC. There 
are three tribes associated with the whiting fishery: Makah, Quileute, 
and Quinault.
    There are two key features of this rule making: establishing the 
2012 interim tribal allocation and reinstatement of regulatory 
authority to reapportion whiting from the tribal to the non-tribal 
fishery. The alternatives are ``No-Action'' vs. the ``Proposed 
Action''. The proposed allocation, based on discussions with the tribes 
is for NMFS to allocate 17.5 percent of the U.S. total allowable catch 
for 2012. NMFS did not consider a broader range of alternatives to the 
proposed allocation. The tribal allocation is based primarily on the 
requests of the tribes. These requests reflect the level of 
participation in the fishery that will allow them to exercise their 
treaty right to fish for whiting. Consideration of amounts lower than 
the tribal requests is not appropriate in this instance. As a matter of 
policy, NMFS has historically supported the harvest levels requested by 
the tribes. Based on the information available to NMFS, the tribal 
request is within their tribal treaty rights, and the participating 
tribe has historically shown an ability to harvest the amount of 
whiting requested. A higher allocation would be, arguably, within the 
scope of the treaty right. However, a higher allocation would 
unnecessarily limit the non-tribal fishery. A no action alternative was 
considered, but the regulatory framework provides for a tribal 
allocation on an annual basis only. Therefore, no action would result 
in no allocation of Pacific whiting to the tribal sector in 2012, which 
would be inconsistent with NMFS' responsibility to manage the fishery 
consistent with the tribes' treaty rights. Given that there is a tribal 
request for allocation in 2012, this alternative received no further 
consideration.
    There are two alternatives associated with reinstating the 
authority to reapportion unused Pacific whiting from the tribal fishery 
to the non-tribal fishery. The ``No-Action'' alternative is the 
authority not reinstated. The ``Proposed'' Alternative would be to 
reinstate the authority.
    NMFS has reviewed analyses of fish ticket data and limited entry 
permit data, available employment data provided by processors, 
information on Tribal fleets, and industry responses to a 2010 survey 
on ownership and has developed the following estimates for the whiting 
fishery. There are four affected components of this fishery-Shorebased 
whiting, mothership whiting, catcher-processor, and tribal. In the 
shorebased whiting fishery, quota shares of whiting were allocated to 
138 entities including ten shoreside processing companies. These 
entities can fish the quota pounds associated with their quota shares, 
transfer their quota pounds to other to fish, or choose not to fish 
their quota pounds. Whiting is landed as bycatch in other fisheries or 
as a target catch in the whiting fishery. To analyze the number of 
participants primarily affected by this rule making, targeted whiting 
trips are defined as landings that contained 5,000 pounds or more of 
whiting. During 2011, 62 vessels landed a total of about 200 million 
pounds of whiting. Of these vessels, only 26 vessels had landings 
greater than 5,000 pounds. Thirteen of these 26 vessels are ``small'' 
entities. These 26 vessels delivered their catch to 10 processing 
companies. These 10 processing companies, either through ownership or 
affiliation, can be organized into to 6 entities. Four of these 6 
entities are ``small'' entities. There are 37 limited entry permits 
that have mothership whiting catch history assignments. During 2011, 
these 37 permits pooled their whiting catch history assignments into a 
single mothership fishery co-op. Approximately half of these vessels 
are ``small'' entities. Vessels in the mothership co-op deliver their 
catch to mothership processors. There are 6 mothership processing 
companies; three or which are ``small'' entities. The catcher-processor 
fleet has ten limited entry permits and 10 vessels, owned by three 
companies. These three companies are considered ``large'' companies 
mainly because of their operations off Alaska. The tribal fleet is 
comprised of 5 vessels considered to be ``small'' entities, while the 3 
tribal governments, based on population sizes, are considered ``small'' 
entities.
    The expected effect of the ``Proposed'' alternative relative to the 
``No Action'' alternative is to allow unharvested tribal allocations of 
whiting to be fished by the non-tribal fleets, benefitting both large 
and small entities. With the implementation of Amendments 20 and 21, 
the ability to reapportion whiting from tribal to the non-tribal 
fishery was eliminated for 2011. Pending markets, available bycatch, 
and the ability of tribal fleets to develop the capacity to harvest the 
tribal allocation there may be uncaught whiting in the tribal fishery 
because there is no regulatory mechanism to transfer uncaught whiting 
to the non-tribal fishery. For 2010, the tribes were initially 
allocated 49,939 mt. As tribal harvests were projected to be about 
16,000 mt, in September 2010 and October 2010, NMFS reapportioned a 
total of 16,000 mt of whiting from the tribal allocation to the non-
tribal shorebased, mothership, and catcher processor sectors. Unlike 
2010, for 2011, NMFS was not authorized to reapportion unharvested 
tribal whiting to the non-tribal sectors. Tribal harvests

[[Page 10470]]

as of October 7, 2011 were about 19 percent of the 66,908 mt allocation 
indicating that about 54,000 tons of the tribal allocation would go 
unfished. This rulemaking would reinstate the regulatory authority to 
reapportion whiting from the tribal to the non-tribal fishery. If NMFS 
was authorized in 2011 to reapportion half or more of the 54,000 mt 
unfished tribal allocation, the ex-vessel revenues could have increased 
by as much as $6.0 million.
    This proposed rule would directly regulate which entities can 
harvest whiting. This rule would allocate fish between tribal 
harvesters (harvest vessels are small entities, tribes are small 
jurisdictions) to non-tribal harvesters (a mixture of small and large 
businesses). Tribal fisheries are a mixture of activities that are 
similar to the activities that non-tribal fisheries undertake. Tribal 
harvests are delivered to both shoreside plants and motherships for 
processing. These processing facilities also process fish harvested by 
non-tribal fisheries.
    NMFS believes this proposed rule would not adversely affect small 
entities and is likely to be beneficial to both small and large 
entities as it allows unharvested tribal fish to be harvested by non-
tribal harvesters. Nonetheless, NMFS has prepared this IRFA and is 
requesting comments on this conclusion.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.
    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), 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 FMP for the Pacific Coast 
groundfish fishery was 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 for the 
2012 groundfish fishery by the end of January 2012, and expects that 
consultation on seabirds will be completed prior to late summer of 
2012. 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. Marine Mammal Protection 
Act (MMPA)
    Impacts resulting from fishing activities proposed in this rule are 
discussed in the FEIS for the 2011-12 groundfish fishery specifications 
and management measures. As discussed above, NMFS does not anticipate 
incidental take of ESA-listed marine mammals prior to the completion of 
the 2012 ESA consultation covering these species. NMFS expects to 
complete the process leading to any necessary authorization of 
incidental taking under MMPA section 101(a)(5)(E) concurrent with the 
2012 biological opinion.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Consistent with the Magnuson-Stevens 
Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific 
Council is a representative of an Indian tribe with federally 
recognized fishing rights from the area of the Council's jurisdiction. 
In addition, NMFS has coordinated specifically with the tribes 
interested in the whiting fishery regarding the issues addressed by 
this rule.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: February 16, 2012.
Alan D. Risenhoover,
Acting 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

    1. The authority citation for part 660 is amended to read as 
follows:

    Authority:  16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.

    2. In Sec.  660.50, paragraph (f)(4) is revised to read as follows:


Sec.  660.50  Pacific Coast treaty Indian fisheries.

* * * * *
    (f) * * *
    (4) Pacific whiting. The tribal allocation for 2012 will be 17.5 
percent of the U.S. TAC.
* * * * *
    3. In Sec.  660.60 paragraphs (d)(1)(iv),and (v) are revised and 
paragraphs(d)(1)(vi) and(d)(2) are added to read as follows:


Sec.  660.60  Specifications and management measures.

* * * * *
    (d) * * *
    (1) * * *
    (iv) Reapportionment of the unused portion of the tribal allocation 
of Pacific whiting to the IFQ, mothership and catcher processor Pacific 
whiting fisheries.
    (v) Implement the Ocean Salmon Conservation Zone, described at 
Sec.  660.131(c)(3), when NMFS projects the Pacific whiting fishery may 
take in excess of 11,000 Chinook within a calendar year.
    (vi) Implement Pacific Whiting Bycatch Reduction Areas, described 
at Sec.  660.131(c)(4) Subpart D, when NMFS projects a sector-specific 
bycatch limit will be reached before the sector's whiting allocation.
    (2) Automatic actions are effective when actual notice is sent by 
NMFS. Actual notice to fishers and processors

[[Page 10471]]

will be by email, Internet (www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/index.cfm), phone, 
fax, letter, or press release. Allocation reapportionments will be 
followed by publication in the Federal Register, in which public 
comment will be sought for a reasonable period of time thereafter.
    4. In Sec.  660.131 a new paragraph (h) is added to read as 
follows:


Sec.  660.131  Pacific whiting fishery management measures.

* * * * *
    (h) Reapportionment of Pacific Whiting.(1) By September 15 of the 
fishing year, the Regional Administrator will, based on discussions 
with representatives of the tribes participating in the Pacific whiting 
fishery for that fishing year, consider the tribal harvests to date and 
catch projections for the remainder of the year relative to the tribal 
allocation as specified at Sec.  660.50 of Pacific whiting. That 
portion of the tribal allocation that the Regional Administrator 
determines will not be used by the end of the fishing year may be 
reapportioned to the other sectors of the trawl fishery in proportion 
to their initial allocations, on September 15 or as soon as practicable 
thereafter. Subsequent reapportionments may be made based on subsequent 
determinations by the Regional Administrator based on the factors 
described above in order to ensure full utilization of the resource.
    (2) The reapportionment of surplus whiting will be made effective 
immediately by actual notice under the automatic action authority 
provided at 660.60 (d)(1).
    (3) Estimates of the portion of the tribal allocation that will not 
be used by the end of the fishing year will be based on the best 
information available to the Regional Administrator.
    5. In Sec.  660.140 paragraph (d)(1)(ii) and (d)(3)(ii)(B)(3) are 
revised to read as follows:


Sec.  660.140  Shorebased IFQ program.

* * * * *
    (d) * * *
    (1) * * *
    (ii) Annual QP and IBQ pound allocations. QP and IBQ pounds will be 
deposited into QS accounts annually. QS permit owners will be notified 
of QP deposits via the IFQ Web site and their QS account. QP and IBQ 
pounds will be issued to the nearest whole pound using standard 
rounding rules (i.e. , decimal amounts less than 0.5 round down and 0.5 
and greater round up), except that in the first year of the Shorebased 
IFQ Program, issuance of QP for overfished species greater than zero 
but less than one pound will be rounded up to one pound. Rounding rules 
may affect distribution of the entire shorebased trawl allocation. NMFS 
will distribute such allocations to the maximum extent practicable, not 
to exceed the total allocation. QS permit owners must transfer their QP 
and IBQ pounds from their QS account to a vessel account in order for 
those QP and IBQ pounds to be fished. QP and IBQ pounds must be 
transferred in whole pounds (i.e. , no fraction of a QP or IBQ pound 
can be transferred). All QP and IBQ pounds in a QS account must be 
transferred to a vessel account by September 1 of each year in order to 
be fished, unless there is a reapportionment of Pacific whiting 
consistent with Sec. Sec.  660.131(h) and 660.140(d)(3).
* * * * *
    (3) * * *
    (ii) * * *
    (B) * * *
    (3) Transfer of QP or IBQ pounds from a QS account to a vessel 
account. QP or IBQ pounds must be transferred in whole pounds (i.e. no 
fraction of a QP can be transferred). QP or IBQ pounds must be 
transferred to a vessel account in order to be used. Transfers of QP or 
IBQ pounds from a QS account to a vessel account are subject to vessel 
accumulation limits and NMFS' approval. Once QP or IBQ pounds are 
transferred from a QS account to a vessel account (accepted by the 
transferee/vessel owner), they cannot be transferred back to a QS 
account and may only be transferred to another vessel account. QP or 
IBQ pounds may not be transferred from one QS account to another QS 
account. All QP or IBQ pounds from a QS account must be transferred to 
one or more vessel accounts by September 1 each year. If the Regional 
Administrator makes a decision to reapportion Pacific whiting from the 
tribal to the non-tribal fishery after September 1 in any year, the 
following actions will be taken.
    (i) NMFS will credit QS accounts with additional Pacific whiting QP 
proportionally, based on the whiting QS percent for a particular QS 
permit owner and the amount of the sector reapportionment of whiting.
    (ii) The QS account transfer function will be reactivated by NMFS 
for a period of 30 days from the date that QS accounts are credited 
with additional Pacific whiting QP to allow permit holders to transfer 
only Pacific whiting QP to vessel accounts.
    (iii) After 30 days, the transfer function in QS accounts will 
again be inactivated.
* * * * *
[FR Doc. 2012-4113 Filed 2-21-12; 8:45 am]
BILLING CODE 3510-22-P