[Federal Register Volume 77, Number 94 (Tuesday, May 15, 2012)]
[Rules and Regulations]
[Pages 28497-28517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11735]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120207106-2428-02]
RIN 0648-BB85 and 0648-BB27


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule for the 2012 Pacific whiting 
fishery under the authority of the Pacific Whiting Act of 2006, the 
Pacific Coast Groundfish Fishery Management Plan (PCGFMP), and the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This final rule establishes: The tribal allocation of 
48,556 metric tons of Pacific whiting for 2012; provisions associated 
with the reapportionment of unused tribal whiting to the non-tribal 
fishery in 2012; and final allocations of Pacific whiting to the non-
tribal sector for 2012.

DATES: Effective May 11, 2012.

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 final rule is accessible via the Internet at the Office of the 
Federal Register's Web site at

[[Page 28498]]

http://www.gpoaccess.gov/fr/index.html. Background information and 
documents are available at the Pacific Fishery Management Council's Web 
site at http://www.pcouncil.org/.
    Copies of the final environmental impact statement (FEIS) for the 
2011-2012 Groundfish Specifications and Management Measures are 
available from Donald McIsaac, Executive Director, Pacific Fishery 
Management Council (Council), 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 Council. Copies of the Record of Decision (ROD), 
final regulatory flexibility analysis (FRFA), and the Small Entity 
Compliance Guide are available from William W. Stelle, Jr., Regional 
Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE., 
Seattle, WA 98115-0070.

Background

    This rule announces the Total Allowable Catch (TAC) for whiting. 
This is the first year that the TAC for Pacific whiting is being 
determined under the terms of the Pacific Hake/Whiting Agreement with 
Canada (the Agreement) and the Pacific Whiting Act of 2006 (the Whiting 
Act), 16 U.S.C. 7001-7010. The Agreement and the Act establish 
bilateral bodies to implement the terms of the Agreement, each with 
various responsibilities, including: The Joint Management Committee 
(JMC), which is the decision-making body; the Joint Technical Committee 
(JTC), which conducts the stock assessment; the Scientific Review Group 
(SRG), which reviews the stock assessment; and the Advisory Panel (AP), 
which provides stakeholder input to the JMC (The Agreement, Art. II-IV; 
16 U.S.C. 7001-7005). The Agreement establishes a default harvest 
policy (F-40 percent with a 40/10 adjustment) and allocates 73.88 
percent of the TAC to the United States and 26.12 percent of the TAC to 
Canada. The bilateral JMC is primarily responsible for developing a TAC 
recommendation to the Parties (United States and Canada). The Secretary 
of Commerce, in consultation with the Secretary of State, has the 
authority to accept or reject this recommendation.
    The JTC met three times over the last six months to prepare the 
stock assessment for 2012. Although the stock assessment and review was 
carried out with very little controversy, the 2011 acoustic survey was 
the topic of considerable discussion, particularly by the advisory 
panel members. The acoustic survey includes an index of abundance and 
age-compositions from 1995, 1998, 2001, 2003, 2005, 2007, 2009, and 
2011. The 2011 index was the lowest of the time series, and had the 
second highest coefficient of variation. The stock assessment was 
updated in several ways this year (e.g. new version of the Stock 
Synthesis model, updating the historical data, updating of the 2010 and 
2011 age compositions) but these did not result in a noticeable change 
from the prior assessment. However, adding the 2011 acoustic survey 
data resulted in a significant decrease in estimated current abundance 
from the prior assessment.
    The SRG met in Seattle, Washington, from February 21-24, 2012, to 
review the draft stock assessment document prepared by the JTC. The SRG 
concluded that the current modeling approach, which implements a 
relatively simple base case in the Stock Synthesis model and 
sensitivity runs in another model, was pragmatic and conservative and 
resulted in a base-case assessment model whose sensitivities were 
thoroughly examined. The SRG concurred with the JTC perspective that 
the 2011 survey estimate of stock biomass is considerably lower than 
the 2009 survey estimate, which results in a lower estimate of terminal 
stock abundance from the 2012 assessment, along with correspondingly 
higher estimates of recent exploitation rates. The estimate of spawning 
stock abundance at the start of 2012 is at 33 percent of the unfished 
equilibrium level, which is near the long-term average expected when 
fishing at the default harvest rate but below the management target of 
40 percent of the unfished equilibrium level. The SRG suggested 
precaution in setting the 2012 TAC for Pacific whiting.
    The assessment from the JTC indicated that the default harvest rate 
could result in a stable or increasing biomass in the short term. 
Specifically, the assessment revealed that application of the default 
harvest rate for this year's fishery would result in a 50 percent 
probability that the median estimate of spawning stock abundance at the 
start of 2013 would be 34 percent of the unfished equilibrium level, a 
slight increase from 2012.
    At its March 14-15, 2012 meeting, the JMC reviewed the advice of 
the JTC, SRG, and AP and agreed on a TAC recommendation for transmittal 
to the Parties. The JMC recommended reducing the TAC but allowing 
carryover such that the projected total mortality would be equal to the 
default harvest rate, which is inherently precautionary because of the 
40-10 adjustment. This recommendation for an adjusted United States TAC 
of 186,037 metric tons (mt) for 2012 is consistent with the best 
available science, provisions of the Agreement, and the Whiting Act. 
The recommendation was transmitted via letter to the Parties on March 
23, 2012. NMFS, under delegation of authority from the Secretary of 
Commerce, approved the TAC recommendation of 186,037 mt for U.S. 
fisheries on April 18, 2012.

Tribal Fishery Allocation

    This final rule establishes the tribal allocation of Pacific 
whiting for 2012. NMFS issued a proposed rule for the allocation and 
management of the 2012 tribal Pacific whiting fishery and 
reapportionment provisions on February 22, 2012 (77 FR 10466). This 
action finalizes the allocation and management measures.
    Since 1996, NMFS has been allocating a portion of the U.S. OY (now 
TAC) of Pacific whiting to the tribal fishery using the process 
established in 50 CFR 660.50(d)(1). The tribal allocation is subtracted 
from the total U.S. Pacific whiting TAC and the remainder, less a 
deduction of 2,000 mt for research and bycatch in non-groundfish 
fisheries, is allocated to the non-tribal sectors. The tribal Pacific 
whiting fishery is managed separately from the non-tribal whiting 
fishery, and is not governed by the limited entry or open access 
regulations or allocations.
    The proposed rule stated that at the time it was published, only 
the Makah Tribe had expressed an intent to participate in the 2012 
fishery and requested 17.5% of the U.S. TAC. Thus, the proposed rule 
described the tribal allocation as 17.5% of the range within which the 
TAC would likely fall (16,970 to 50,908 mt, based on a range for the 
TAC of 96,969 mt to 290,903 mt). During the comment period on the 
proposed rule, the Quileute Tribe informed NMFS of its intent to 
participate in the 2012 fishery, and requested 16,000 mt to facilitate 
the participation of two Quileute boats in the fishery.
    The tribal allocation in this final rule is 48,556 mt (17.5 percent 
of the U.S. TAC or 32,556 mt, plus 16,000 mt), which accounts for both 
tribal requests. While this amount constitutes a larger proportion of 
the U.S. TAC than was anticipated in the proposed rule (26% rather than 
17.5%), it falls within the range of potential tribal allocations 
described in that rule. Accounting for both tribal requests in the 
tribal allocation is necessary to allow for the exercise of the treaty 
right. While the amount of the treaty right has not yet been 
determined, and new scientific

[[Page 28499]]

information or discussions with the relevant parties may change this 
outcome, the best available scientific information to date suggests 
that 26% of the U.S. TAC is within the likely range of potential treaty 
right amounts.
    The Quileute Tribe submitted its letter to NMFS regarding the 2012 
whiting fishery to the Council, which included the letter in the 
briefing book for its April 2012 meeting. This information was 
therefore available to the public, and there was some discussion of the 
letter during Council deliberations at the April meeting.
    In order to ensure that this rule is published before the start of 
the whiting fishery, and to allow for full exercise of the treaty 
fishing right, NMFS is publishing the tribal allocation as a final 
rule.
    As with prior tribal whiting allocations, this final rule is not 
intended to establish any precedent for future Pacific whiting seasons, 
or for the long-term tribal allocation of whiting. Rather, this rule 
adopts an interim allocation, pending the determination of the long-
term treaty amount. That amount will be based on further development of 
scientific information and additional coordination and discussion with 
and among the coastal tribes and States of Washington and Oregon. This 
process, begun in 2008, is continuing.

Reapportionment

    This final rule establishes regulatory provisions allowing NMFS to 
reapportion whiting from the tribal allocation to the non-tribal 
sectors if it appears that the tribal fishery will not use its full 
allocation. These basic provisions are not changed from the proposed 
rule, and are discussed in more detail in the preamble to that rule; as 
discussed below, this rule modifies the reapportionment procedures in 
consideration of comments received.

Non-Tribal Allocations

    The 2012 fishery harvest guideline (HG) for Pacific whiting is 
135,481 mt. This amount was determined by deducting from the total U.S. 
TAC of 186,037 mt, the 48,556 mt tribal allocation, along with 2,000 mt 
for research catch and bycatch in non-groundfish fisheries. Regulations 
at 50 CFR 660.55(i)(2) allocate the fishery HG among the non-tribal 
catcher/processor, mothership, and shorebased sectors of the Pacific 
whiting fishery. The catcher/processor sector is allocated 34 percent 
(46,064 mt for 2012), the mothership sector is allocated 24 percent 
(32,515 mt for 2012), and the shorebased sector is allocated 42 percent 
(56,902 mt for 2012). The fishery south of 42[deg] N. lat. may not take 
more than 2,845 mt (5 percent of the shorebased allocation) prior to 
the start of the primary Pacific whiting season north of 42[deg] N. 
lat.
    The 2012 allocations of Pacific Ocean perch, canary rockfish, 
darkblotched rockfish, and widow rockfish to the whiting fishery were 
published in a final rule on December 13, 2011 (76 FR 77415). The 
allocations to the Pacific whiting fishery for these species are 
described in Sec.  660.55(c)(1)(i) and in Table 1b, subpart C.

Comments and Responses

    On February 22, 2012, NMFS issued a proposed rule for the 
allocation and management of the 2012 tribal Pacific whiting fishery 
and reapportionment of unused Pacific whiting from the tribal to the 
non-tribal fishery. The comment period on the proposed rule closed on 
March 23, 2012. During the comment period, NMFS received ten letters of 
comment. The U.S. Department of the Interior submitted a letter of ``no 
comment'' associated with their review of the proposed rule. Letters 
were received from the Quileute Tribe, three commercial fishing 
organizations, one association that represents Native Americans, and 
two individuals. Comments received on the proposed rule for the 2012 
tribal Pacific whiting fishery are addressed below.

The Quileute Tribe

    Comment 1: The tribal allocation of 17.5 percent of the TAC is 
inappropriate, because it is based upon the erroneous assumption that 
only the Makah Tribe will participate in the 2012 fishery.
    Response: The final rule increases the tribal allocation to 26% of 
the final TAC, or 48,556 mt, to include an allocation to both the Makah 
and the Quileute Tribes. In the proposed rule on the issue of tribal 
allocation, NMFS noted that prior to publication of the regulations for 
the 2011-2012 harvest specification biennial cycle [in the fall of 
2010], both the Quileute and Makah Tribes indicated they intended to 
fish in 2012. Leading up to publication of the proposed rule, NMFS also 
sought input from the Makah and Quileute Tribes about their intent for 
2012, but only the Makah Tribe responded. Thus, NMFS proposed an 
allocation for the Makah Tribe of 17.5% of the TAC, or between 16,970 
mt and 50,908 mt, depending on the final TAC. In response to the 
proposed rule, the Quileute Tribe commented that they planned to 
participate in the fishery in 2012, seeking an allocation of 16,000 mt. 
NMFS has taken this input into account in the final determination of an 
allocation of tribal whiting for 2012 based on a final TAC of 186,037 
mt and the requests from the Makah Tribe of 17.5 percent of the TAC 
(32,556 mt) and the Quileute Tribe of 16,000 mt (8.5% of the TAC). The 
combined allocation to the Makah and Quileute Tribes, given the 2012 
U.S. TAC, is 48,556 mt, within the range of amounts considered in the 
proposed rule.
    Comment 2: Two groups commented that the proposed reapportionment 
of whiting from the tribal sector to the non-tribal sectors is an 
unacceptable abrogation of treaty rights. One states that ``Whiting are 
not like salmon; they live to swim another year. There is no reason why 
these fish cannot remain ``undepleted'' to live and spawn another day, 
to everyone's benefit.''
    Response: NMFS does not agree with the conclusion that 
reapportionment is an abrogation of treaty rights. The tribal 
allocation under this rule allows full opportunity for the tribes to 
harvest whiting in the amounts requested, which as described above are 
likely within the total amount of the treaty right based on the 
information currently available. The reapportionment provision is 
structured to ensure that reapportionment would only take place if the 
tribes will not be catching their full allocation of whiting in 2012, 
based on discussions with all of the coastal tribes. Should it appear 
that the tribes might catch their full allocation, reapportionment 
would not take place. Thus, the reapportionment provisions are not 
intended to infringe on the tribes' fishing rights.
    From the late 1990's through 2010, NMFS' regulatory authority to 
reapportion Pacific whiting from the tribal to the non-tribal fishery 
existed under 50 CFR 660.323(c), and NMFS exercised this authority in 
coordination with the coastal tribes to the extent practicable. During 
the development of Amendment 20 to the Pacific Coast Groundfish 
Management Plan for the trawl rationalization program, the Pacific 
Fishery Management Council (Council) selected an option that precluded 
any rollover or reapportionment of Pacific whiting between the non-
tribal sectors as well as between the tribal and non-tribal fishery, so 
no mechanism was in place in 2011 for reapportionment of unused 
whiting. However, through further Council consideration and discussion 
with NMFS, the Council encouraged NMFS to reinstate regulatory 
provisions authorizing the reapportionment of whiting from the tribal 
to the non-tribal sector for 2012 and beyond. Through this rulemaking, 
NMFS is reinstating the

[[Page 28500]]

regulatory authority to reapportion Pacific whiting in order to promote 
full utilization of the resource.
    While whiting clearly have a different life history than salmon, 
the statement that whiting ``live to swim another day,'' suggesting 
that fish not caught in a given year are available to the fishery in 
subsequent years, is not fully supported by the available scientific 
information regarding whiting. The population of Pacific whiting in any 
year is made up of multiple year classes. However, by age-5, the loss 
of animals to natural mortality outweighs the effects of individual 
fish growth on the overall biomass because as a cohort ages the fish 
suffer the same natural mortality rate of 20 percent per year, but are 
growing at a slower rate per year. The harvestable amount of whiting 
fluctuates significantly from one year to the next, as the difference 
between the 2011 whiting OY and the 2012 whiting TAC demonstrates. Thus 
fish not caught in a given year do not necessarily contribute to the 
fishery in subsequent years.
    Comment 3: Two procedural aspects of the reapportionment provisions 
are inappropriate. First, by only engaging participating tribes in 
discussions regarding reapportionment, NMFS permits the tribal share to 
be given to non-tribal entities without consent of all tribes with 
rights to whiting. Second, to the extent reapportionment is required in 
the formal rule, it occurs too early in the season. A substantial 
amount of fishing takes place after September 1, making it difficult if 
not impossible to project the tribal harvest for the remainder of the 
season as of that date.
    Response: NMFS will coordinate and consult with the coastal tribes, 
and will attempt to reach consensus before any reapportionment 
decisions are made in 2012. However, absent consensus, the NMFS 
Regional Administrator will make reapportionment decisions based on 
information obtained through discussions with the tribes. Relative to 
timing of any reapportionment decisions, this rule does not 
establishing a single date by which decisions to reapportion fish will 
be made. Rather, the rule contemplates that the Regional Administrator 
will be contacting the tribes in the September timeframe to assess 
tribal progress on Pacific whiting fishing activities and to obtain 
information on fishing plans for the remainder of the year. The rule 
does not require that the Regional Administrator make a decision to 
reapportion fish on September 15 or as soon as practical thereafter, 
but simply allows for such action should the available information 
indicate that the tribes will not use some portion of the tribal 
allocation by the end of the year. If the available information as of 
September 15 does not indicate whether any portion of the allocation 
will remain unused at the end of the year, reapportionment would not 
occur at that time.
    Comment 4: The representation that the Council recommended 
reapportionment of unharvested tribal shares to the non-tribal shares 
is incorrect.
    Response: Although the Council did not make a formal recommendation 
in the form of a motion, NMFS believes that the Council clearly 
articulated the desire to reinstate reapportionment provisions for 
Pacific whiting allocated to the tribes. In May 2011, the final rule 
publishing the Pacific whiting specifications indicated that the 
Council adopted a motion during the Amendment 20 (trawl 
rationalization) process that removed provisions that allowed rollover 
of whiting between sectors. NMFS interpreted the motion to include the 
tribal fishery. At that time NMFS recommended that revisions to the 
regulations should be dealt with through the Council process and a 
notice and comment rulemaking.
    In November 2011 the Council further discussed reapportionment of 
Pacific whiting allocated to the tribes under Agenda E.2. At that time 
the Council and its advisory bodies identified the importance of 
reinstating the reapportionment provision. At this same meeting NMFS 
indicated that the agency's independent authority under the Magnuson-
Stevens Act would be used for the development of a rulemaking that 
would reinstate reapportionment provisions similar to those that were 
in place prior to the implementation of PCGFMP Amendments 20 and 21. 
The action by NMFS was in response to comments received on the Pacific 
whiting harvest specifications in 2011 (76 FR 28897; May 19, 2011) and 
input from the Council and its advisory body on this issue at the 
November 2011 meeting and earlier meetings. NMFS believes that the 
Council record supports this action (See April, 2011 Agenda item I.6.B; 
June, 2011 Agenda Item E.6.b; September, 2011 Agenda Item G.8.b; and, 
November, 2011 Agenda item E.2.f).
    Without reapportionment provisions there is a high likelihood that 
whiting harvest will be foregone which is inconsistent with National 
Standard 1 of the Magnuson-Stevens Act. Having the ability to 
reapportion the Pacific whiting allocated to the tribes allows for 
attainment of the Pacific whiting OY.
    Comment 5: Reinstating reapportionment is in furtherance of the 
monetary concerns of non-tribal fishers, particularly as the rule does 
not provide for reapportionment from the non-tribal fishery to the 
tribal allocation.
    Response: Given the recent history of full utilization by the non-
tribal sectors and the tribal sector not using its full allocation, 
NMFS believes that a one-way reapportionment provision for 2012 is 
appropriate. NMFS does recognize that there may be years in which the 
non-tribal sectors do not use their full allocation, and will continue 
to explore, through discussion with the tribes, states, and non-tribal 
sectors, the possibility of a two-way reapportionment mechanism for 
2013.
    NMFS manages groundfish fisheries under the guidance of the PCGMP 
and the Magnuson-Stevens Fishery Conservation and Management Act 
National Standards. Obtaining the optimum yield from the fishery is an 
important consideration in the development of fishing regulations as 
described in the Magnuson Stevens Act, National Standard Guidelines, 
and PCGFMP. National Standard 1 states that ``Conservation and 
management measures shall prevent overfishing while achieving, on a 
continuing basis, the optimum yield from each fishery for the United 
States fishing industry. The PCGFMP Goals and objectives include 
Management Goal 2--Economics, which is to maximize the value of the 
groundfish resource as a whole; and, Goal 3--Utilization, which is to 
achieve the maximum biological yield of the overall groundfish fishery, 
promote year-round availability of quality seafood to the consumer, and 
promote recreational fishing opportunities. NMFS also recognizes that 
fishing regulations must be consistent with the tribes' treaty fishing 
rights. NMFS believes that this action allows for the full exercise of 
the treaty fishing right while also being consistent with the National 
Standards expressed in the Magnuson Act.
    Comment 6: It is not appropriate to regulate tribal fisheries in 
section 660.131, because tribal fisheries are regulated by a different 
process, as detailed in 660.50. This rule mixes governance of the state 
share of whiting with the tribal share, which is contrary to 50 CFR 
660.50, where tribal fisheries are regulated under a different process 
from the non-tribal fisheries. An exchange of state/tribal shares must 
contemplate a two-way process.
    Response: NMFS agrees that the management of tribal fisheries, 
regulated under 50 CFR 660.50, is separate and distinct from management 
of the non-tribal fisheries. Thus, the regulations pertaining to the 
tribal

[[Page 28501]]

fisheries are different from those pertaining to the non-tribal 
fisheries. However, the location of the reapportionment provisions in 
the regulations does not affect this outcome. The concept of a two-way 
reapportionment process is addressed in response to Comment 5.
    Comment 7: NMFS did not consult with the Quileute Tribe regarding 
its proposal to reinstate reapportionment provisions.
    Response: NMFS acknowledges that formal consultation, as envisioned 
by the Quileute Tribal Council, did not take place regarding the issue 
of reapportionment for the 2012 fishery. NMFS has met with Quileute 
Tribe representatives on a number of occasions to discuss the whiting 
fishery, including reapportionment provisions. NMFS staff specifically 
discussed the proposed rule with Quileute representatives prior to 
issuing this final rule. NMFS plans to offer formal consultation, as 
envisioned by the Quileute Tribal Council, over the course of the next 
year, and prior to the Pacific whiting fishery in 2013, in order to 
make progress on these issues, consistent with the provisions of 50 CFR 
660.50.
    Comment 8: The Tribe submitted comments on the Regulatory Impact 
Review (RIR) and Initial Regulatory Flexibility Analysis (IRFA) 
prepared for this proposed rule. They state that there are a number of 
issues with statements, analysis and conclusions of the document which 
require a more complete dialogue, and they requested to extend the 
comment period associated with this document for an additional 30 days. 
Specific issues included references for Executive Order 12866, 
especially in relationship to the phrases ``significant regulatory 
action'' and ``test for no significance'', how ex-vessel value is 
calculated, the extent of description of Treaty Fisheries, and a 
request for an extension of the comment period.
    Response: Executive Order 12866 can be found at 58 FR 51735 October 
4, 1993 or at http://www.plainlanguage.gov/populartopics/regulations/eo12866.pdf. Page 51738 contains the standards for a ``significant 
regulatory action.'' While the Executive Order defines the standards 
for a significant regulatory action, NMFS Economic Guidelines provide 
the information, analyses and criteria by which an action is determined 
significant under the Executive Order or under the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The Guidelines can be 
found at: http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf.
    Ex-vessel value is generally defined as the payments that fishermen 
receive for the fish, shellfish, and other aquatic plants and animals 
when landed at the dock. For the analysis, various levels of whiting 
harvests were converted into ex-vessel values using the ex-vessel 
prices developed by Pacific States Marine Fisheries Commission's 
Pacific Fisheries Information Network (PacFIN) database. (See for 
example: http://pacfin.psmfc.org/pacfin_pub/data_rpts_pub/pfmc_rpts_pub/r058Wtwl_p11.txt). These ex-vessel prices are based on 
Washington, Oregon, and California state fish tickets or fish receiving 
tickets as organized and summarized in PacFIN. For example, the 
Washington State administrative code describes these tickets at WAC 
220-69-234 (Description of treaty Indian fish receiving ticket) and WAC 
220-69-230 (Nontreaty fish receiving tickets).
    In consideration of the extent of description of Treaty Fisheries, 
Quileute were not consulted regarding the information included in this 
report. The processes and guidelines that underlie the development of 
analyses to support Executive Order 12866 and the RFA do not require 
NMFS to consult directly with each affected party. Information used for 
the analysis were based on Council documents or on data reported in the 
Pacific States Marine Fisheries Commission PacFIN database. One of the 
purposes of the notice and comment processes with federal rulemaking is 
to provide the public, including affected entities, an opportunity to 
review regulations and supporting analysis. Reviewers are welcome to 
submit additional information relevant to the analysis. To the extent 
the Quileute have provided additional information, this is discussed in 
these responses to comments.
    NMFS is not extending the public comment period. NMFS provided a 
30-day comment period and promptly provided a copy of the RIR/IRFA upon 
request. Extending the comment period would cause a delay in the start 
of the fishery (May 15, 2012) which would cause hardship on the non-
tribal fishery and possibly affect the ability to harvest the 
allocations. In the future, NMFS will list the preparer and post the 
economic analyses on its Web sites along with the regulations.
    Comment 9: The Tribe commented that the IRFA analysis overestimated 
the amount of unfished tribal share because it neglected to recognize 
that a certain portion of the unfished tribal share would be carried 
over into 2012. ``The economic analysis in the report (page 6) states 
that the unfished tribal share of 54,000 mt had an ex-vessel value of 
$6 million. According to our calculations, with a TAC of 290,000 mt, of 
the 54,000 mt of fish left unharvested, 43,500 mt are subject to the 
carryover provisions in the US/Canada Hake Treaty. Utilizing numbers 
provided in the report (approximately $111 per mt), these carryover 
fish have a value of $4.8 million which could be realized in the 2012 
fishery.''
    Response: Commenter is referring to the following analysis: 
``Unlike 2010, for 2011, NMFS was not authorized to reapportion 
unharvested tribal whiting to the non-tribal sectors. Tribal harvests 
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 set-aside 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.''
    Commenter is also referring to the following provision of the 
Pacific whiting treaty:

    ``If, in any year, a Party's catch is less than its individual 
TAC, an amount equal to the shortfall shall be added to its 
individual TAC in the following year, unless otherwise recommended 
by the JMC. Adjustments under this sub-paragraph shall in no case 
exceed 15 percent of a Party's unadjusted individual TAC for the 
year in which the shortfall occurred.''

    Such an adjustment was made for the 2012 fishery under the Treaty:

    ``Consistent with Article II 3.(e) of the Agreement, and after 
reviewing the advice of the Joint Technical Committee (JTC), the 
Scientific Review Group (SRG), and the Advisory Panel (AP), the JMC 
recommends a coastwide TAC of 192,746 metric tons (mt). Based on 
Article III 2. of the Agreement, the Canadian share of the coastwide 
TAC is 26.12 percent, or 50,345 mt, and the U.S. share is 73.88 
percent, or 142,401 mt. Consistent with Article II 5.(b) of the 
Agreement, an adjustment (carryover from 2011) of 15,427 mt is added 
to the Canadian share, for an adjusted Canadian TAC of 65,772. In 
the same manner, an adjustment of 43,636 mt is added to the United 
States share, for an adjusted United States TAC of 186,037 mt. This 
results in a coastwide adjusted TAC of 251,809 mt for 2012, which is 
consistent with the default harvest rate of F-40 percent with a 40/
10 adjustment identified in Article III 1. of the Agreement'' 
(http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/upload/2012-TAC-rec.pdf).

    NMFS believes that the estimate of unfished tribal Pacific whiting 
is valid

[[Page 28502]]

for use in describing the value to other fishermen in 2011 had NMFS 
been allowed to reallocate the unfished allocation to non-tribal 
fishermen. NMFS notes that under the Pacific whiting Treaty, a certain 
portion of the allocation could be carried over into the following 
year. Given the process to honor tribal requests at the beginning of 
the year and then later in the year reallocate unfished tribal 
allocations to non-tribal fishermen, then it is likely that the 
carryover would be harvested by non-tribal fishermen. As indicated by 
the commenter's estimate, in this instance, non-tribal fishermen would 
likely gain by $4.8 million in 2012, but there would have been a 
permanent loss to the fishery of $1.2 million ($6.0 million minus $4.8 
million) if reapportionment were not allowed because carryover is 
limited to 15 percent.

The Fishing Organizations

    Comment 10: One organization supports the proposed allocation of 
17.5 percent of the U.S. TAC (32,556 mt) to the tribal fishery, because 
the Makah tribe has a long history of participation in the fishery, and 
all three organizations strongly support reinstatement of regulatory 
authority to reallocate whiting that will not be harvested in the 
tribal sector to the non-tribal sector, consistent with National 
Standards included in the Magnuson Stevens Fishery Conservation and 
Management Act. History shows a strong likelihood that the tribes will 
not harvest their entire allocation, and the non-tribal fisheries 
should be given the opportunity to harvest the unused portion.
    Response: NMFS acknowledges the support for the reapportionment 
process as identified in the proposed rule.
    Comment 11: One organization commented that the final rule should 
give NMFS authority to allocate the unused tribal share without being 
locked into the 42 percent shoreside, 34 percent catcher-processor, and 
24 percent mothership formula that governs the initial whiting 
allocation to the three non-tribal sectors in order to maximize the 
likelihood of harvesting the reallocation.
    Response: NMFS believes that the most appropriate way to proceed 
with reapportionment is the manner described in the proposed rule which 
reapportions to the non-tribal sectors in a manner consistent with the 
initial allocations of Pacific whiting to the non-tribal sectors, and 
proportionally in the circumstance where one or more of the non-tribal 
sectors is no longer participating in the fishery for the year when a 
reapportionment decision is made.
    Comment 12: One organization did not see the need to postpone any 
reapportionment to September 15 or later, and if possible, would prefer 
that reapportionment be done by September 1. In addition, the 
organization recommended that determinations on subsequent 
reapportionments be made such that reapportionments occur no later than 
December 1.
    Response: NMFS is committed to checking on the status of the 
whiting fishery, both tribal and non-tribal, as the season progresses 
through the summer of 2012, to inform any reapportionment decision with 
the best information available. However, NMFS does not agree that 
reapportionment should occur earlier than September 15. NMFS believes 
that adequate time must be allowed for tribal participants to 
demonstrate the intent and ability to harvest Pacific whiting allocated 
to them. Regarding the recommendation that any reapportionment occur no 
later than December 1, NMFS agrees that this deadline should be 
incorporated into the regulations. Reapportionment decisions after 
December 1 would be problematic for NMFS relative to management of the 
shoreside IFQ fishery as discussed under Comment 17. Any final 
decisions on reapportionment will be made by the Regional Administrator 
by December 1 each year.
    Comment 13: One organization recommends the language on 
``proportions'' in the proposed rule be made explicit to provide 
clarity as to what standard would apply for allocating any 
reapportioned tribal whiting. They suggest language changes in the 
proposed rule regulatory text that would make it more explicit that 
reapportioned tribal whiting is allocated to the non-tribal sector 
consistent with the 42 percent to the shorebased sector, 34 percent to 
the catcher/processor sector, and 24 percent to the mothership sector 
according to initial allocations.
    Response: NMFS regulatory language ``in proportion to their initial 
allocation'' is sufficiently clear on this point, and therefore NMFS is 
not modifying the regulatory language. If all three non-tribal sectors 
are operating at the time that a reapportionment decision is made, then 
the proportional allocation as described by the organization would be 
in effect. However, if one or more of the non-tribal sectors has ceased 
fishing operations for the year at the time of reapportionment, either 
due to bycatch considerations or because of operational decisions to 
declare out of the fishery, then NMFS would maintain the responsibility 
to reapportion unused tribal whiting proportionally to those sectors 
that have not ceased fishing for the year. If NMFS were required to 
only reapportion according to initial allocations in all circumstance, 
this could result in the stranding of reapportioned fish with no 
ability for operating non-tribal sectors to access parts of the 
reapportioned Pacific whiting. This result would be inconsistent with 
full utilization of the resource as stated in the PCGMP, which is one 
of the reasons why NMFS is reinstating reapportionment provisions.
    Comment 14: One organization seeks confirmation that reapportioned 
tribal whiting would not be allowed to rollover between the three 
directed fishery sectors, consistent with the rules regarding 
allocation of Pacific whiting in the trawl rationalization program.
    Response: NMFS agrees with this interpretation of the regulations 
governing the trawl rationalization program.
    Comment 15: For the shorebased IFQ program, one organization sought 
clarification on its understanding that the carryover limits in effect 
for the shorebased IFQ program would include any quota pounds 
transferred into vessel accounts as a result of any reapportionment of 
tribal whiting.
    Response: NMFS does not agree that carryover would apply to quota 
pounds transferred into vessel accounts as a result of reapportionment 
at this time, therefore NMFS disagrees that carryover limits are 
relevant to reapportioned quota pounds. The application of carryover to 
reapportioned quota pounds has policy implications that have not been 
fully considered to date, potentially including impacts to the exercise 
of tribal treaty fishing rights. Further discussion and full 
consideration of these implications is needed by the Council, the JMC 
for the Pacific whiting Treaty, and between NMFS and the coastal 
tribes.
    Comment 16: One organization seeks clarification on the effect of 
tribal reapportionments on the vessel limits in the shorebased IFQ 
program, stating its belief that reapportionments of Pacific whiting 
should not be subject to vessel limits. However, it recognizes that it 
may not be practicable to manage annual and tribal reapportionments 
separately in the database system, and therefore state its 
understanding that the vessel limit percentage currently in effect for 
the shorebased IFQ program would apply to the combined initial 
allocations and any reapportionment of tribal whiting.

[[Page 28503]]

    Response: The organization is correct in its understanding that 
vessel limits in the shorebased IFQ program apply to combined initial 
allocations and any reapportionment of Pacific whiting.
    Comment 17: One organization seeks clarification on its 
understanding regarding quota share accounts in the shorebased IFQ 
program and transfer functions with 30 day limits which seems to 
indicate that tribal reapportionments would occur no later than 
December 1, in order to allow for activation of the transfer function 
in quota share accounts to be activated at the beginning of the 
following year.
    Response: After reviewing this comment, NMFS is modifying the 
regulations to specify that the latest date a tribal reapportionment 
would occur is December 1 in any year. Reapportionments after that date 
would be impracticable for NMFS, given the preparations needed to be 
undertaken for the upcoming year, and to the industry, given the 
limitations on the transfer procedures for the shorebased IFQ vessel 
accounts. There are two dates in the existing regulations that affect 
the reapportionment process for the shorebased IFQ program, September 1 
and December 15. All QP or IBQ pounds from a QS account to a vessel 
account must be transferred to one or more vessel accounts by September 
1 each year. Transfers of QP or IBQ pounds into and between vessel 
accounts is not allowed between December 15 and the end of the year. It 
is beyond the scope of the rulemaking to change the regulation relating 
to December 15. However, the Council is considering eliminating this 
requirement through future rulemaking. Once a reapportionment decision 
is made, it may take NMFS up to 3 business days to populate the quota 
share accounts with quota pounds. In anticipation of the possibility of 
more than one reapportionment, NMFS is modifying the current regulation 
that prevents quota pound transfers from a QS account to a vessel 
account as of September 1 to allow whiting quota pounds only (both 
reapportioned whiting and whiting that was initially allocated to the 
QS account) to be transferred from a QS account to a vessel account 
from January 1st through December 14 each year only if a 
reapportionment occurs. If a reapportionment of whiting does not occur, 
the existing rule with a September 1 deadline will remain in effect. To 
reiterate, the ability to transfer QPs from a QS account to a vessel 
account between January 1 and December 14 would apply only to whiting 
and only in the case of a reapportionment, not to other IFQ or IBQ 
species.
    Current regulations contain a provision that prohibits transfers of 
quota pounds of any IFQ species into or out of a vessel account 
beginning on December 15. If reapportioned whiting to the shorebased 
IFQ sector is credited to QS accounts on December 1, a transfer of 
whiting quota pounds would need to concluded no later than 11:59 p.m. 
PST on December 14, which includes any initiation of a whiting transfer 
by QS account holder and acceptance of such whiting transfer by the 
vessel account holder.
    Comment 18: One organization commented that reapportionment of 
tribal whiting allocations should not be subject to vessel limits for 
the mothership coop program.
    Response: NMFS does not agree with this perspective, as it is 
outside the scope of this rulemaking. Modifications to the mothership 
coop program that were developed through Amendment 20 of the Groundfish 
Fishery Management Plan creating the trawl rationalization program 
would require further consideration by the Council and further 
rulemaking.
    Comment 19: One organization recommended that any reapportionments 
of tribal whiting to the mothership coop program be distributed only to 
the coop fishery, or each coop if more than one, but not to the non-
coop fishery.
    Response: NMFS does not agree with this perspective, as it is 
outside the scope of this rulemaking. Modifications to the mothership 
coop program that was developed through Amendment 20 of the Groundfish 
Fishery Management Plan creating the trawl rationalization program 
would require further consideration by the Council and further 
rulemaking.
    Comment 20: One organization commented that current rules 
applicable to permitted mothership coop allocations for redistribution 
and for processor obligations should apply to any tribal whiting 
reapportionments.
    Response: NMFS concurs with this perspective.
    Comment 21: One organization recommended modifications to the 
current regulations for the mothership coop program regarding permit 
expiration when a whiting allocation is reached, in order to avoid a 
possible scenario where the coop permit may expire prior to a 
determination on reapportionment of Pacific whiting.
    Response: Rather than modifying the regulations, NMFS believes this 
possible scenario can be avoided simply through enhanced communications 
between the agency and the coop manager during the season.
    Comment 22: One organization recommended that reapportionments of 
tribal whiting allocations to the mothership sector should not be 
subject to 45 percent processing restriction or limit on the annual 
sector allocation.
    Response: NMFS does not agree with this perspective, as it is 
outside the scope of this rulemaking. Modifications to the mothership 
coop program that was developed through Amendment 20 of the PCGFMP 
creating the trawl rationalization program would require further 
consideration by the Council and further rulemaking.
    Comment 23: One organization stated their support for the proposed 
set aside of 17.5 percent of the U.S. Total Allowable Catch for 2012.
    Response: NMFS acknowledges the support for the tribal whiting set 
aside or allocation as stated in the proposed rule that was the best 
available information on participation by the tribes in the 2012 
Pacific whiting fishery; however, as explained above, the final amount 
includes the additional request of 16,000 mt by the Quileute tribe.
    Comment 24: An individual fisherman who is a member of the Makah 
Tribe stated his support for the reapportionment provisions, suggesting 
that the reapportionment decision be made as soon as it becomes evident 
that members of the Tribal sector will be unable to harvest a portion 
of their set aside. He believes the rule should accommodate 
reapportionments earlier than September 15 if a decision is made by the 
Tribal sector to release some of its set aside.
    Response: NMFS acknowledges the support for reapportionment 
provisions, but does not agree that reapportionment should occur 
earlier than September 15. NMFS plans to check on the status of all 
whiting fisheries during the summer months to gather the best 
information available, leading up to any decisions on reapportionment.
    Comment 25: The individual stated it was equally important that 
subsequent reapportionments should be made any time it is apparent 
there will be unutilized tribal fish so other sectors still fishing 
will have enough notice to plan their fishing operations so they can 
catch the reapportioned fish.
    Response: NMFS is aware of the importance of timely decisions on 
any subsequent reapportionments in order to allow for timely planning 
of fishing operations, and will take that into account in their 
decision making.
    Comment 26: The individual stated that if reapportionments were 
done in a

[[Page 28504]]

timely manner, it would also benefit the tribes by providing an 
incentive for their processing partners to process tribal fish early 
rather than wait for the possible benefit of a late season rollover 
when they may be the only processor operating.
    Response: NMFS acknowledges receipt of this perspective regarding 
tribal fisheries and their processing partners.

Changes From the Proposed Rule

    There are four changes in the final rule that NMFS is implementing, 
based on comments received during the public comment period on the 
proposed rule, internal evaluation of procedures associated with 
reapportionment of Pacific whiting, and regulation housekeeping errors 
that were identified after publication of the proposed rule.
    The first change is the final allocation to the tribal whiting 
fishery. Although the TAC for whiting for 2012 was not known when the 
proposed rule was published, NMFS stated that the tribal request was 
for 17.5 percent of the U.S. TAC. During the public comment period, the 
Quileute Tribal Council notified NMFS of their plans to participate in 
the fishery in 2012, with a request of 16,000 mt. The final rule has 
been modified to reflect this request.
    The second change is to establish a final date of December 1 for 
any reapportionment decision by the Regional Administrator. This change 
was made in consideration of public comment as well as NMFS' assessment 
of internal procedures associated with managing the shorebased IFQ 
program.
    The third change is associated with the Quota Share accounts for 
the shorebased trawl IFQ program, and how they will be managed. Under 
current regulations, all Quota Pounds and Individual Bycatch Quota must 
be transferred to one or more vessel accounts by September 1 of each 
year. In the proposed rule, if a reapportionment decision was made, 
NMFS was going to open the Quota Share account for a period of 30 days 
to enable the transfer of Pacific whiting Quota Pounds from a Quota 
Share account to a vessel account. Given that there may be one or more 
reapportionments of Pacific whiting under this final rule, NMFS has 
decided, for purposes of reapportionment of Pacific whiting, to modify 
the regulations to open the Quota Share account for Pacific whiting 
only from the time a reapportionment decision is made until December 14 
at 11:59 p.m., rather than opening the Quota Share account for 30 days, 
as stated in the proposed rule. This change should facilitate Pacific 
whiting transactions in the shorebased IFQ program more efficiently, 
and this change will facilitate more effective management of the 
associated database by NMFS.
    The fourth and final change occurs in Sec.  660.55 paragraph (i) 
pertaining to the allocation of Pacific whiting to the commercial 
sectors. This paragraph incorrectly indicated that the commercial 
harvest guideline would be allocated among the three sectors. However, 
beginning in 2011 the term ``fishery harvest guideline'' was added to 
the regulations and is the value after deductions are made for catch 
during research, incidental open access fishery catch, Exempted fishing 
permit catch and tribal catch. For the purposes of housekeeping the 
term ``commercial harvest guideline'' is revised to fishery harvest 
guideline.

Classification

    The final Pacific whiting specifications and management measures 
for 2012 are issued under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), and the Pacific Whiting Act of 
2006, and are in accordance with 50 CFR part 660, subparts C through G, 
the regulations implementing the PCGFMP. NMFS has determined that this 
rule is consistent with the national standards of the Magnuson-Stevens 
Act and other applicable laws. NMFS, in making the final determination, 
took into account the data, views, and comments received during the 
comment period.
    NMFS has determined that the tribal whiting fishery, conducted off 
the coast of the State of Washington, is consistent, to the maximum 
extent practicable, with the approved coastal zone management program 
of the State of Washington. NMFS has also determined that the Pacific 
whiting fishery, both tribal and non-tribal, is consistent, to the 
maximum extent practicable, with approved coastal zone management 
programs for the States of Washington, Oregon, and California.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b)(3)(B), the Assistant Administrator, 
NMFS, finds good cause to waive prior public notice and comment on the 
2012 Pacific whiting specifications, as delaying this rule would be 
contrary to the public interest. The annual harvest specifications for 
Pacific whiting must be implemented by the start of the primary Pacific 
whiting season, which begins on May 15, 2012, or the primary whiting 
season will effectively remain closed. The PCGFMP requires that fishery 
specifications be evaluated periodically using the best scientific 
information available; however, Pacific whiting differs from other 
groundfish species in that it has a shorter life span and the 
population fluctuates more swiftly. As a result, NMFS must use the most 
recent stock assessment for Pacific whiting when determining TACs.
    Every year, NMFS conducts a Pacific whiting stock assessment in 
which U.S. and Canadian scientists cooperate. The 2012 stock assessment 
for Pacific whiting was prepared in early 2012, as the new 2011 data--
including updated total catch, length and age data from the U.S. and 
Canadian fisheries, and biomass indices from the Joint U.S.-Canadian 
acoustic/midwater trawl surveys--were not available until January, 
2012. Because of the delay in obtaining the best available data for the 
assessment, it would not possible to allow for notice and comment 
before the start of the Pacific whiting season on May 15.
    A delay in implementing the Pacific whiting harvest specifications 
to allow for notice and comment would be contrary to the public 
interest because it would shorten the primary whiting season. A shorter 
season could prevent the tribal and non-tribal fisheries from attaining 
their 2012 allocations, which would result in unnecessary short-term 
adverse economic effects for the Pacific whiting fishing vessels and 
the associated fishing communities. To prevent these adverse economic 
effects and to allow the Pacific whiting season to start on time, it is 
in the public interest to waive prior notice and comment.
    The Assistant Administrator, NMFS, also finds good cause to waive 
the 30-day delay in effectiveness for the 2012 Pacific whiting tribal 
allocations, reapportionment provisions, and non-tribal allocations of 
Pacific whiting pursuant to 5 U.S.C. 553(d)(3). A 30-day delay in 
implementing the Pacific whiting harvest specifications would further 
shorten the primary whiting season and could prevent the tribal and 
non-tribal fisheries from attaining their 2012 allocations, resulting 
in unnecessary short-term adverse economic effects for the Pacific 
whiting fishing vessels and the associated fishing communities. Waiving 
the 30-day delay in effectiveness will not have a negative impact on 
any entities, as there are no new compliance requirements or other 
burdens placed on the fishing community with this rule. Waiving the 30-
day delay in effectiveness serves the best interests of the public 
because it will allow for the longest possible Pacific whiting fishing

[[Page 28505]]

season and therefore the best possible economic outcome for those whose 
livelihoods depend on this fishery. Because the 30-day delay in 
effectiveness would potentially cause significant financial harm 
without providing any corresponding benefits, this final rule is made 
effective May 11, 2012.
    The preamble to the proposed rule and this final rule serve as the 
small entity compliance guide required by Section 212 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This action does 
not require any additional compliance from small entities that is not 
described in the preamble. Copies of this final rule are available from 
NMFS at the following Web site: http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Whiting-Management/2012/index.cfm.
    Rulemaking must comply with Executive Order (E.O.) 12866 and the 
Regulatory Flexibility Act (RFA). The Office of Management and Budget 
has determined that this rule is not significant for purposes of 
Executive Order 12866.
    The NMFS Economic Guidelines that describe the RFA and E.O. 12866 
can be found at: (http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf).
    The RFA can be found at 5 U.S.C. 601 et seq. (http://www.archives.gov/federal-register/laws/regulatory-flexibility/).
    Executive Order 12866 can be found at (http://www.plainlanguage.gov/populartopics/regulations/eo12866.pdf).
    When an agency proposes regulations, the RFA requires the agency to 
prepare and make available for public comment an IRFA that describes 
the impact on small businesses, non-profit enterprises, local 
governments, and other small entities. The IRFA is to aid the agency in 
considering all reasonable regulatory alternatives that would minimize 
the economic impact on affected small entities. After the public 
comment period, the agency prepares a Final Regulatory Flexibility 
Analysis (FRFA) that takes into consideration any new information and 
public comments. This FRFA incorporates the Initial Regulatory 
Flexibility Analysis (IRFA), a summary of the significant issues raised 
by the public comments, NMFS' responses to those comments, and a 
summary of the analyses completed to support the action. NMFS published 
the proposed rule on February 22, 2012 (77 FR 10648), with a comment 
period through March 23, 2012. An IRFA was prepared and summarized in 
the ``Classification'' section of the preamble to the proposed rule. 
The description of this action, its purpose, and its legal basis are 
described in the preamble to the proposed rule and are not repeated 
here. The FRFA describes the impacts on small entities, which are 
defined in the IRFA for this action and not repeated here. Analytical 
requirements for the FRFA are described in Regulatory Flexibility Act, 
section 304(a)(1) through (5), and summarized below. The FRFA must 
contain: (1) A succinct statement of the need for, and objectives of, 
the rule; (2) A summary of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
summary of the assessment of the agency of such issues, and a statement 
of any changes made in the proposed rule as a result of such comments; 
(3) A description and an estimate of the number of small entities to 
which the rule will apply, or an explanation of why no such estimate is 
available; (4) A description of the projected reporting, recordkeeping 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities which will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record; and (5) A description of the steps the agency has 
taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes, including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.
    This rule establishes the 2012 harvest specifications for Pacific 
whiting and the allocation of Pacific whiting for the Tribal Whiting 
Fishery. This rule will establish the interim 2012 tribal allocation of 
Pacific whiting, reinstate reapportionment provisions for unused tribal 
whiting, and establish 2012 allocations for the non-tribal sectors: 
catcher-processor, mothership, and shoreside.
    There were several comments on the IRFA. Comments 8 and 9 are 
described and addressed above. Under the RFA, the term ``small 
entities'' includes small businesses, small organizations, and small 
governmental jurisdictions. The Small Business Administration (SBA) has 
established size criteria for all major industry sectors in the United 
States, 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 not in excess of $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 on a full-time, part-time, 
temporary, or other basis, 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 on a 
full-time, part-time, temporary, or other basis, at all its affiliated 
operations worldwide. For marinas and charter/party boats, a small 
business is one with annual receipts not in excess of $7.0 million. The 
RFA defines small organizations 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 special 
districts with populations of less than 50,000.
    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 others 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 rulemaking, 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 6 entities. Four of these

[[Page 28506]]

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 of 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 about 7 vessels based on expectation that 2 new tribal 
vessels will enter the fishery in 2012. These are considered to be 
``small'' entities, while the 3 tribal governments, based on population 
sizes, are considered ``small'' entities.
    There are no recordkeeping requirements associated with this final 
rule.
    There are two key features of this rulemaking: Establishing the 
2012 interim tribal allocation, and reinstatement of regulatory 
authority to reapportion whiting from the tribal to the non-tribal 
fishery. The basic alternatives are ``No-Action'' vs. the ``Proposed 
Action''. The proposed allocation, based on discussions with the tribes 
at the time, was for NMFS to allocate 17.5 percent of the U.S. total 
allowable catch for 2012. NMFS did not consider a broad 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 because it could prevent 
exercise of the treaty fishing right. Based on the information 
available to NMFS, the tribal request is within their tribal treaty 
rights. A higher allocation would be, arguably, within the scope of the 
treaty right. However, a higher allocation may 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 tribal treaty rights. Given that there is a tribal request for 
allocation in 2012, this alternative received no further consideration.
    In response to a request from the Quileute Tribe submitted as a 
public comment on the proposed rule, (See comment 1 above), the tribal 
allocation was revised by 16,000 metric tons. Based on a U.S. TAC of 
186,037 mt, the total tribal allocation is 48,556 mt, the set-aside for 
research catch and whiting bycatch in the non-groundfish fisheries is 
2000 mt, and the non-tribal allocation is 135,481 mt. Based on the 
percentage shares established in the PCGFMP, the non-tribal allocation 
to the shoreside sector is 56,902 mt (42.0 percent), to the catcher-
processor sector 46,064 mt (34.0 percent), and to the mothership sector 
32,515 mt (24 percent). The average annual ex-vessel price for whiting 
is $229 per ton, yielding a total ex-vessel value of the TAC at $42.6 
million. http://pacfin.psmfc.org/pacfin_pub/data_rpts_pub/pfmc_rpts_pub/r058Wtwl_p11.txt; (PacFIN) Note that the 2011 ex-vessel 
price has been updated from that used in the IRFA ($232 per ton) and 
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.
    The RIR/IRFA also analyzed 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. The basis for 
reinstating this authority is found in the NMFS responses to comments 2 
and 3 above. NMFS will continue to work with small entities such as the 
tribes to improve upon the reapportionment process as well with all 
entities via the Council.
    This final rule directly regulates what entities can harvest 
whiting. This rule allocates fish between tribal harvesters (harvest 
vessels are small entities, tribes are small jurisdictions) and 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. After a review of public comments, NMFS believes this rule 
will 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 sectors.
    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 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 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). 
On February 9, 2012, NMFS Protected Resources Division issued a 
Biological Opinion (BO) pursuant to section 7(a)(2) of the Endangered 
Species Act (ESA) on the effects of the operation of the Pacific

[[Page 28507]]

coast groundfish fishery in 2012. In this Opinion, NMFS concluded that 
the proposed action is not likely to jeopardize the continued existence 
of green sturgeon (Acipenser medirostris), eulachon (Thaleichthys 
pacificus), humpback whales (Megaptera novaeangliae), Steller sea lions 
(Eumetopias jubatus), and leatherback sea turtles (Dennochelys 
coriacea). NMFS also concluded that the proposed action is not likely 
to destroy or adversely modify designated critical habitat of green 
sturgeon or leatherback sea turtles. Furthermore, NMFS concluded that 
the proposed action may affect, but is not likely to adversely affect 
the following species and designated critical habitat: Sei whales 
(Balaenoptera borealis); North Pacific Right whales (Eubalaena 
japonica); Blue whales (Balaenoptera musculus); Fin whales 
(Balaenoptera physalus); Sperm whales (Physter macrocephalus); Southern 
Resident killer whales (Orcinus orca); Guadalupe fur seals 
(Arctocephalus townsendi); Green sea turtles (Chelonia mydas); Olive 
ridley sea turtles (Lepidochelys olivacea); Loggerhead sea turtles 
(Carretta carretta); critical habitat of Southern Resident killer 
whales; and critical habitat of Steller sea lions.
    On August 25, 2011, NMFS Sustainable Fisheries Division initiated 
consultation with U.S. Fish and Wildlife Service (USFWS) pursuant to 
section 7(a)(2) of the Endangered Species Act (ESA) on the effects of 
the operation of the Pacific coast groundfish fishery. The Biological 
Assessment (BA) was revised and re-submitted to USFWS on January 17, 
2012. The BA concludes that the continued operation of the Pacific 
Coast Groundfish Fishery is likely to adversely affect short-tailed 
albatross; however, the level of take is not expected to reduce 
appreciably the likelihood of survival or significantly affect recovery 
of the species. The BA preliminarily concludes that continued operation 
of the Pacific Coast Groundfish Fishery is not likely to adversely 
affect California least terns, marbled murrelets, bull trout, and 
Northern or Southern sea otters. USFWS formally responded with a letter 
dated March 29, 2012 and advised NMFS that formal consultation has been 
initiated.
Marine Mammal Protection Act (MMPA)
    Impacts resulting from fishing activities proposed in this final 
rule are discussed in the FEIS for the 2011-12 groundfish fishery 
specifications and management measures. As discussed above, NMFS issued 
a biological opinion addressing impacts to ESA listed marine mammals. 
NMFS is currently working on the process leading to any necessary 
authorization of incidental taking under MMPA section 101(a)(5)(E).
    Pursuant to Executive Order 13175, this final rule was developed 
after meaningful discussion and collaboration with tribal officials 
from the area covered by the PCGFMP. 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: May 9, 2012.
Samuel D. Rauch III,
Acting 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 is revised to read as follows:

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


0
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 is 48,556 mt.
* * * * *

0
3. In Sec.  660.55 paragraph (i)(2) is revised to read as follows:


Sec.  660.55  Allocations.

* * * * *
    (i) * * *
    (2) The fishery harvest guideline for Pacific whiting is allocated 
among three sectors, as follows: 34 percent for the C/P Coop Program; 
24 percent for the MS Coop Program; and 42 percent for the Shore based 
IFQ Program. No more than 5 percent of the Shore based IFQ Program 
allocation may be taken and retained south of 42[deg] N. lat. before 
the start of the primary Pacific whiting season north of 42[deg] N. 
lat. Specific sector allocations for a given calendar year are found in 
Tables 1a through c and 2a through c of this subpart. Set-asides for 
other species for the at-sea whiting fishery for a given calendar year 
are found in Tables 1D and 2D of this subpart.
* * * * *

0
4. In Sec.  660.60 paragraphs (d)(1)(i) through (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) * * *
    (i) Close an at-sea sector of the fishery when that sector's 
Pacific whiting allocation is reached, or is projected to be reached.
    (ii) Close all at-sea sectors or a single sector of the fishery 
when a non-whiting groundfish species with allocations is reached or 
projected to be reached.
    (iii) Reapportion unused allocations of non-whiting groundfish 
species from one at-sea sector of the Pacific whiting fishery to 
another.
    (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), 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 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.
* * * * *

0
5. Table 2a, to Part 660, Subpart C is revised to read as follows:
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0
6. 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. No 
reapportionments will occur after December 1 of the fishing year.
    (2) The reapportionment of surplus whiting will be made effective 
immediately by actual notice under the automatic action authority 
provided at Sec.  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.


0
7. In Sec.  660.140 paragraphs (d)(1)(ii) introductory text, 
(d)(1)(ii)(D), 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).
* * * * *
    (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.......................  ......................          1,810.65
Pacific cod...................  ......................          1,135.00
Pacific Whiting...............  ......................            56,902
Sablefish.....................  North of 36[deg] N.             2,467.00
                                 lat.
Sablefish.....................  South of 36[deg] N.               514.08
                                 lat.
Dover sole....................  ......................         22,234.50
English sole..................  ......................          9,542.50

[[Page 28517]]

 
Petrale sole..................  ......................          1,054.60
Arrowtooth flounder...........  ......................          9,462.45
Starry flounder...............  ......................            671.50
Other flatfish................  ......................          4,197.40
Pacific Ocean perch...........  North of 40[deg]10' N.            119.50
                                 lat.
Widow rockfish................  ......................            342.62
Canary rockfish...............  ......................             26.20
Chilipepper rockfish..........  South of 40[deg]10' N.          1,331.25
                                 lat.
Bocaccio rockfish.............  South of 40[deg]10' N.             60.00
                                 lat.
Splitnose rockfish............  South of 40[deg]10' N.          1,454.45
                                 lat.
Yellowtail rockfish...........  North of 40[deg]10' N.          3,107.36
                                 lat.
Shortspine thornyhead.........  North of 34[deg]27' N.          1,415.45
                                 lat.
Shortspine thornyhead.........  South of 34[deg]27' N.             50.00
                                 lat.
Longspine thornyhead..........  North of 34[deg]27' N.          1,914.00
                                 lat.
Cowcod........................  South of 40[deg]10' N.              1.80
                                 lat.
Darkblotched rockfish.........  ......................            248.94
Yelloweye rockfish............  ......................              0.60
Minor shelf rockfish complex..  North of 40[deg]10' N.            522.00
                                 lat.
Minor shelf rockfish complex..  South of 40[deg]10' N.             86.00
                                 lat.
Minor slope rockfish complex..  North of 40[deg]10' N.            829.52
                                 lat.
Minor slope rockfish complex..  South of 40[deg]10' N.            377.37
                                 lat.
------------------------------------------------------------------------

* * * * *
    (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 
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 December 15, the transfer function in QS accounts will 
again be inactivated.
* * * * *
[FR Doc. 2012-11735 Filed 5-11-12; 11:15 am]
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