[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Rules and Regulations]
[Pages 29556-29563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12153]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 0906041011-2432-02]
RIN 0648-AX91


Fisheries of the Exclusive Economic Zone Off Alaska; Pacific 
Halibut and Sablefish Individual Fishing Quota Program

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues a final rule to modify the Individual Fishing 
Quota (IFQ) Program for the Fixed-Gear Commercial Fisheries for Pacific 
Halibut and Sablefish in Waters in and off Alaska (IFQ Program) by 
revoking quota share (QS) that have been inactive since they were 
originally issued in 1995. Inactive QS are those held by persons that 
have never harvested their IFQ and have never transferred QS or IFQ 
into or out of their IFQ accounts.
    This action is necessary to achieve the catch limit from the 
halibut fisheries and optimum yield from the sablefish fisheries in 
Alaska in accordance with National Standard 1 of the Magnuson-Stevens 
Fishery Conservation and Management Act, and this action will achieve 
more efficient use of these species. The intended effect is to promote 
the management provisions in the Northern Pacific Halibut Act of 1982, 
the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Management Area, and the Fishery Management Plan for 
Groundfish of the Gulf of Alaska.

DATES: Effective June 18, 2012.

ADDRESSES: Electronic copies of this rule, the categorical exclusion 
memorandum, the Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (RIR/IRFA), and the Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (RIR/FRFA) prepared for this action are available 
from http://www.regulations.gov or from the NMFS Alaska Region Web site 
at http://alaskafisheries.noaa.gov. Written requests may be submitted 
by mail to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, 
Attn: Ellen Sebastian, Records Officer; or in person at NMFS, Alaska 
Region, 709 West 9th Street, Room 420A, Juneau, Alaska. Written 
comments regarding the burden-hour estimates or other aspects

[[Page 29557]]

of the collection-of-information requirements contained in this action 
may be submitted to NMFS at the above address and by email to [email protected], or by fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peggy Murphy, (907) 586-7228.

SUPPLEMENTARY INFORMATION: 

Management of the Halibut and Sablefish IFQ Fisheries

    Management of the commercial fishery for Pacific halibut 
(Hippoglossus stenolepis) in and off Alaska is based on an 
international agreement between Canada and the United States. This 
agreement, titled ``Convention Between United States of America and 
Canada for the Preservation of the Halibut Fishery of the Northern 
Pacific Ocean and Bering Sea'' (Convention), was signed in Ottawa, 
Canada, on March 2, 1953, and amended by the ``Protocol Amending the 
Convention,'' signed in Washington, DC, March 29, 1979. The Convention 
is administered by the International Pacific Halibut Commission (IPHC) 
and is given effect in the United States by the Northern Pacific 
Halibut Act of 1982 (Halibut Act).
    The Halibut Act (section 773(c)) authorizes the North Pacific 
Fishery Management Council (Council) to develop halibut fishery 
regulations, including limited access regulations that are in addition 
to, and not in conflict with, approved IPHC regulations for U.S. 
Convention waters. Federal regulations governing the halibut fisheries 
appear at 50 CFR part 300, subpart E. Halibut regulations may be 
implemented by NMFS only after approval by the Secretary of Commerce 
(Secretary). The Council has exercised this authority most notably in 
the development of the IFQ Program codified at 50 CFR part 679, subpart 
D.
    Federal management of the commercial fishery for sablefish 
(Anoplopoma fimbria) is authorized by the Fishery Management Plan for 
Groundfish of the Bering Sea and Aleutian Islands Management Area and 
the Fishery Management Plan for Groundfish of the Gulf of Alaska 
(FMPs). The FMPs were prepared by the Council under authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1801 et seq.) (Magnuson-Stevens Act) and implemented by regulations at 
50 CFR part 679.

IFQ Program

    The Council and NMFS developed the IFQ Program for the halibut and 
sablefish fixed-gear fisheries in waters in and off Alaska. The Council 
adopted the IFQ Program in 1991 under the authority of the Halibut Act 
and the Magnuson-Stevens Act. The preamble to the proposed rule for the 
IFQ Program, published December 3, 1992 (57 FR 57130), details the 
conservation and management background leading to the Council's 
adoption of the IFQ Program. NMFS implemented the program on November 
9, 1993 (58 FR 59375) through Federal regulations at 50 CFR part 679. 
Fishing under the IFQ Program began on March 15, 1995. The IFQ Program 
is designed to maintain the social character and economic benefits of 
the commercial, fixed-gear fisheries that Alaskan coastal communities 
rely on as a source of revenue. The Council and NMFS intend the IFQ 
Program to provide economic stability for the Pacific halibut and 
sablefish commercial fisheries and improve long-term productivity of 
the resources.
    The IFQ Program limits access to the halibut and sablefish fixed-
gear fisheries in waters in and off Alaska to persons holding QS. Quota 
Share was initially issued to persons who owned or leased vessels that 
made legal commercial landings of Pacific halibut or sablefish during 
1988-1990. The intent was to assign initial QS only to those fishermen 
then currently active in the halibut and sablefish fixed-gear 
fisheries. Once issued to a person, QS is held by that person until it 
is transferred, suspended, or revoked. The IFQ Program allows fishermen 
to transfer QS to other initial issuees or to those who have a 
Transferable Eligibility Certificate, giving them flexibility to 
determine what type of investment to make based on when, where, and how 
much halibut and sablefish they can harvest.
    The amount of halibut and sablefish that each QS holder may harvest 
is calculated annually and issued as IFQ pounds on an IFQ permit. An 
IFQ permit authorizes participation in the fixed-gear fishery for 
Pacific halibut in and off Alaska, and in most fixed-gear sablefish 
fisheries off Alaska. IFQ permits are issued annually to persons 
holding Pacific halibut and sablefish QS or to those persons who are 
recipients of IFQ transfers from QS holders.
    Persons holding QS have harvesting privileges for IFQ pounds of 
halibut or sablefish that are derived annually from their QS holdings. 
The amount (in pounds) specified on an permit is determined by the 
number of QS units held for a species, the total number of QS units 
issued for that species in a specific regulatory area, and the total 
allowable catch (TAC) of that species allocated for IFQ fisheries in a 
particular year, as modified by adjustments from the prior year's 
harvest.
    The IFQ Program requires IFQ permit holders to be on board the 
vessel to maintain a predominantly ``owner-operated'' fishery. A narrow 
exemption exists for initial recipients of QS. Initial recipients of 
catcher vessel QS may be absent from a vessel conducting IFQ halibut or 
sablefish fishing, provided the QS holder can demonstrate a minimum 
specified level of ownership of the vessel that harvests the IFQ 
halibut or sablefish, as well as representation on the vessel by a 
hired master designated under IFQ regulations. This exception allows 
fishermen who historically operated their fishing businesses using 
hired masters before the implementation of the IFQ Program to retain 
the flexibility of using hired masters under the IFQ Program.

Description of Final Action

    This final rule authorizes NMFS to revoke halibut and sablefish QS 
that have been inactive since they were originally issued in 1995. 
Inactive QS are those held by persons who have never harvested the IFQ 
derived from initially issued QS and who have never transferred QS or 
IFQ into or out of their IFQ Program accounts. NMFS will not revoke the 
inactive QS of any person who responds in writing to NMFS within 60 
days after NMFS issues a Notice of Determination of Quota Share 
Inactivity, requesting that the inactive QS not be revoked. The action 
provides halibut and sablefish fishermen holding active QS an 
opportunity to fish for currently unavailable QS and more fully harvest 
these species' TACs.
    The background and need for this action were described in detail in 
the preamble to the proposed rule published in the Federal Register on 
August 23, 2010 (75 FR 51741). In summary, amending the IFQ Program 
regulations will improve access to all available QS, increase the 
operational flexibility of fishermen participating in the IFQ 
fisheries, and increase yield from QS to help achieve optimum yield. In 
addition, data collection, recordkeeping, and reporting of inactive QS 
and the administrative tasks for managing inactive QS are eliminated. 
Less information to administer and manage will streamline aspects of 
the IFQ Program, reduce administrative costs, and promote efficient use 
of IFQ Program and participant resources. To achieve these objectives, 
the final rule authorizes NMFS to revoke inactive QS.
    Halibut and sablefish QS was initially allocated to persons who 
qualified to hold an IFQ permit pursuant to

[[Page 29558]]

regulations at Sec.  679.40(a). These regulations specified no minimum 
amount of halibut or sablefish QS to be issued. As a result, small 
amounts of QS were initially issued to just over 200 persons who to 
date have never fished the IFQ derived from that QS, or transferred the 
QS to another person. Thus, the recipients of these QS allocations have 
left their QS inactive for the entire 16 years since it was initially 
issued. They presumably have elected not to participate actively in the 
IFQ fisheries, are no longer in the commercial fishing industry, are 
deceased, or have been unable or unwilling to divest or otherwise 
transfer their inactive QS. Persons holding inactive QS have had the 
same opportunity as persons with active QS to participate in the IFQ 
Program by fishing their IFQ or transferring their QS and IFQ.
    As a result of inactive QS, some IFQ and a portion of the TAC is 
not harvested. This reduces economic and social benefits from IFQ 
harvests typically realized by fishery dependent businesses and the 
public. Consumers are deprived of product, active IFQ fishermen are 
precluded from harvesting the IFQ derived from inactive QS, and new 
entrants to the IFQ fisheries are denied access to halibut and 
sablefish QS held by persons who have never participated in the IFQ 
fisheries. This final rule will improve operational flexibility of 
active program participants to harvest species TACs, and will allow 
broader opportunity to achieve the halibut fishery's constant 
exploitation yield and the optimum yield from the sablefish fisheries 
as required by National Standard 1 of the Magnuson-Stevens Act.
    Moreover, even though QS is inactive, NMFS must perform routine 
administrative tasks to process, monitor, and maintain data on inactive 
QS, including recordkeeping, regular correspondence with the IFQ permit 
holder that holds inactive QS, annual allocation of IFQ pounds, and 
data reporting. The administrative work detracts time from NMFS 
managers that can be used more productively. Additionally, IFQ permit 
holders help pay for the program costs through the IFQ cost recovery 
program (Sec.  679.45) by remitting a fee for IFQ species landed. When 
QS remains inactive, no landing fees accrue to the program, although 
the IFQ permit holder with the inactive QS continues to receive 
administrative support from the IFQ Program. This action will eliminate 
the administrative tasks and costs for managing inactive QS, because 
the rule removes that QS entirely. Less information to administer and 
manage will streamline aspects of the IFQ Program to the benefit of QS 
managers and program participants. Reducing the administrative costs 
and burden will allow for more efficient use of IFQ Program resources.
    This action revokes inactive halibut and sablefish QS. The portion 
of the annual halibut and sablefish TACs represented by the revoked QS 
and associated IFQ will be distributed in future years among IFQ permit 
holders in an amount proportional to their IFQ allocation. 
Alternatively, if a permit holder requests NMFS not to revoke his or 
her inactive QS, then NMFS will assign an active status to that QS 
because the permit holder took action in making the request. This QS 
retained by request will remain integrated with previously-active QS 
and the associated IFQ will continue to be issued annually.
    Revoking QS will not change the initial recipient status of the QS 
holder. Hence, if a person was initially allocated QS that is revoked 
under this action and subsequently acquires new QS in the future, that 
person retains the benefit of being an initial recipient of QS for 
purposes of retaining the flexibility of using a hired master.

Public Notice

    In June 2006, the Council acted on a multi-part IFQ regulatory 
amendment package that included this action on inactive QS. The Council 
adopted a preferred alternative to (1) revoke all inactive halibut and 
sablefish QS from the QS pools and (2) redistribute inactive halibut QS 
through a lottery if the final amount of revoked inactive QS exceeds 
the number of QS units equivalent to 50,000 pounds (22.7 mt) for all 
IPHC regulatory areas in the year of the lottery. NMFS separated the 
Council's multiple recommendations into different regulatory amendment 
packages. This final rule is the final one of the series recommended by 
the Council in 2006. As a result, several years have passed between the 
Council's action notifying the public of the pending change to the IFQ 
Program and publication of this final rule.
    Since Council action, NMFS, Alaska Region, has maintained a Web 
site listing of inactive QS and the information needed to facilitate 
voluntary transfers of QS. NMFS also contacted persons holding inactive 
halibut or sablefish QS by direct mail. NMFS notified these persons of 
the status of this action in letters sent by direct mail in January 
2008 and again in March 2009. NMFS communicated that it was pursuing 
rulemaking that, if implemented, would require persons to notify NMFS 
in writing that they do not want their inactive QS and associated 
annual IFQ revoked. In between these notification letters, the amount 
of inactive halibut QS declined below the threshold poundage to conduct 
a lottery prompting the Council, in February 2009, to reaffirm its 
previous recommendation for the Preferred Alternative, but without the 
lottery. NMFS also provided broad public notice of the Council's intent 
to withdraw inactive QS with publication of the proposed rule (75 FR 
51743) in the Federal Register, August 23, 2010.
    The RIR/FRFA prepared for this action (see ADDRESSES) finds that 
when the Council initially considered the proposal in June 2006, 534 
persons held 865,586 units of inactive halibut QS (280,000 lbs [127 mt] 
in 2006 equivalents). Inactive sablefish QS equating to 57,522 units 
(16,000 lbs [7.3 mt] in 2006 equivalents) was held by seven persons. As 
of December 21, 2011 (the most current data available), 202 persons 
held 156,218 units of inactive halibut QS (10,597 lbs [4.8 mt] in 2011 
equivalents) and two persons held 9,281 units of inactive sablefish QS 
(695 lbs [0.32 mt] in 2011 equivalents). Overall, the communications 
with IFQ permit holders stimulated transfers of inactive QS that 
resulted in a 62 percent decline in the number of persons holding 
inactive halibut QS and a 71 percent decline in the number of people 
holding inactive sablefish QS. The decline in QS units was also similar 
for both species: Inactive halibut QS declined 82 percent and inactive 
sablefish QS declined 84 percent.

Official Notice and Record

    This final rule implements regulations authorizing NMFS to send 
each holder of inactive QS a ``Notice of Determination of Quota Share 
Inactivity'' (Inactive QS Notice). The Inactive QS Notice will be sent 
by certified mail to the address of record at the time the Inactive QS 
Notice is sent (Sec.  679.43(e)). The inactive QS holder bears the 
responsibility if the Inactive QS Notice is not received because the 
inactive QS holder has not notified NMFS of a change in the address of 
record. The Inactive QS Notice will describe the inactive status of the 
QS, identify the IFQ permit holder, and provide the date the authorized 
60-day response period will end.
    NMFS will issue an Inactive QS Notice alerting a holder of inactive 
halibut or sablefish QS that their QS are considered inactive based on 
records maintained by NMFS. An Inactive QS Notice will be issued if 
official records indicate that the QS holder initially issued the QS 
never landed their IFQ

[[Page 29559]]

halibut or IFQ sablefish, or transferred any QS or IFQ to or from 
another person. The official record of an IFQ halibut or IFQ sablefish 
landing contains the IFQ permit number to which the IFQ landing was 
credited. The number of landings and weight of each landing will be 
based only on legally submitted harvest documentation. Legal 
documentation is an IFQ Landing Report submitted under Sec.  679.5, 
which indicates, among other data, the amount of IFQ halibut or IFQ 
sablefish harvested, the IPHC or groundfish reporting area in which the 
IFQ amounts were harvested, the vessel and gear type used for the 
harvest, and the date of harvesting, landing, or reporting. NMFS 
presumes that the official record data sources are correct. If a person 
believes the official record is incorrect, his or her claim can be 
raised in a separate correspondence to NMFS, Restricted Access 
Management Program, Juneau, AK (see ADDRESSES) prior to the end of the 
60-day response period specified in the Inactive QS Notice.

Options for Persons Holding Inactive Quota Share

    A person who holds inactive QS has two options when responding to 
an Inactive QS Notice. During the 60-day response period specified in 
the Inactive QS Notice, the person holding the inactive QS could (1) do 
nothing, thereby resulting in revocation of the inactive QS; or (2) 
request in writing that the inactive QS be considered active and not 
revoked. Alternatively, a person holding inactive QS could exercise 
options that have existed since the beginning of the IFQ Program in 
1995 to either transfer some or all of the inactive QS, or harvest 
halibut or sablefish based on IFQ derived from the inactive QS. These 
options are further explained below.
    NMFS will revoke the inactive QS of a QS holder who fails to 
respond to NMFS within the 60-day period specified in the Inactive QS 
Notice. NMFS will remove revoked QS from the QS pool and will not 
generate an annual allocation of IFQ poundage for IFQ halibut or IFQ 
sablefish. Any IFQ derived from the inactive QS also will be revoked at 
the time that the inactive QS are revoked. After inactive QS are 
revoked, the previous holder of those QS can participate in the IFQ 
halibut or IFQ sablefish fisheries only if they subsequently receive QS 
or IFQ, or both, by transfer.
    A person holding inactive QS who wishes to retain the inactive QS 
may notify NMFS in writing that he or she does not want the inactive QS 
revoked; this written notification must be received within the 60-day 
response period specified in the Inactive QS Notice. This notification 
will demonstrate sufficient activity in the IFQ Program to allow NMFS 
to activate the otherwise inactive QS. After receiving the QS holder's 
timely written notification, NMFS will allocate IFQ based on the 
activated QS as it has done since the beginning of the IFQ Program, and 
the holder of such QS will continue to benefit from the initial 
recipient privileges specified in the regulations implementing the IFQ 
Program (Sec. Sec.  679.41 and 679.42). The IFQ halibut and IFQ 
sablefish harvesting privilege for an initial recipient of QS will 
continue as it does for all other initial recipient QS holders.
    A person holding inactive QS who fails to respond to the Inactive 
QS Notice from NMFS within the 60-day response period may appeal to the 
NMFS National Appeals Office to submit his or her response late 
pursuant to Sec.  679.43. As a practical matter, any other written 
challenge of the Inactive QS Notice received within the 60-day response 
period will be considered a request to not revoke the inactive QS. Such 
challenges will activate the otherwise inactive QS by demonstrating a 
reaction and, therefore, at least minimal activity in the IFQ Program.
    The options to activate otherwise inactive QS by either 
transferring some or all of the inactive QS, or harvesting halibut or 
sablefish based on IFQ derived from the inactive QS, will continue to 
be available to a person holding inactive QS through the end of the 60-
day response period specified in the Inactive QS Notice. No additional 
period of time will be provided to demonstrate these activities.

Written Response to Inactive QS Notice

    The Inactive QS Notice provides the person holding the inactive QS 
with the opportunity to request in writing that inactive QS and IFQ 
remain active. NMFS will accept written responses by mail, courier or 
hand-delivery, or fax. The response deadline will be 60 days after NMFS 
sends the Inactive QS Notice and will be stamped on the Notice and 
identified as the Response Date. Responses must be received by NMFS no 
later than the date printed on the Inactive QS Notice, or, if sent by 
mail, postmarked by that date. If delivered by hand or carrier, the 
receipt date will be the date the response is stamped received by NMFS. 
If sent by facsimile, the receipt date will be the date stamped 
received by NMFS. Any other form of response, including email, will not 
be accepted. The Inactive QS Notice will be constructed to allow the 
bottom half of the document to be separated and used as a mail-in 
response form to NMFS indicating whether the holder of the inactive QS 
wants to retain the QS. The following statement will be printed on the 
mail-in response form as an expression of the QS holder's request to 
not revoke the inactive QS: ``I [print first name, middle initial, and 
surname] request that NMFS not revoke my quota share authorized by my 
signature on this date; Signed [Write signature], Dated [Enter the 
current date].'' A holder of inactive QS may also respond without using 
the provided form, but must include the same information, names, 
signatures, and dates as specified on the mail-in response form. Each 
completed form or other response statement received by NMFS by the 
response date and verified correct will result in a letter of 
acknowledgement issued to the person identified as the holder of the 
inactive QS or his or her legal representative. The letter will serve 
as final agency action advising that QS will be ``active'' and no 
further response by the person holding the inactive QS or by NMFS will 
be required.

Previous Response to NMFS Letters

    Any previous request to NMFS to activate inactive QS is not 
sufficient for NMFS to change that QS status. If a response was 
submitted to NMFS regarding inactive QS and the IFQ permit holder has 
since officially activated the QS by completing a transfer or fishing 
the IFQ, then no further response is required. If a QS holder 
previously responded to NMFS' letters about inactive QS and requested 
he or she be able to keep the inactive QS, then the IFQ permit holder 
must again submit that request pursuant to this final rule to avoid 
revocation of inactive QS.

Public Comment

    NMFS proposed this action in the Federal Register on August 23, 
2010 (75 FR 51741). NMFS received two comments during the public 
comment period for the proposed rule. These comments are addressed 
below.
    Comment 1: The commenter maintains that this action will result in 
an increased number of hooks deployed and therefore will increase the 
risk that short-tailed albatross will be caught and drowned in the 
halibut longline fishery. The commenter considers this redistribution 
of TAC and the current use of improved seabird bycatch avoidance 
measures in the halibut fishery to be a change in the action previously 
analyzed in the 1998 Bering Sea Aleutian Islands and Gulf of Alaska

[[Page 29560]]

Halibut Fishery Biological Opinion (1998 Biological Opinion) issued by 
the U.S. Fish and Wildlife Service (FWS) on March 13, 1998 (http://alaskafisheries.noaa.gov/protectedresources/seabirds/section7/pachalibut.pdf). In addition, the commenter considers the increased 
population of short-tailed albatross to be a change in the 
environmental baseline. For these reasons, the commenter recommends 
that NMFS reinitiate section 7 consultation with FWS on the effects of 
the Pacific halibut fishery on the short-tailed albatross. The 
commenter also recommends restructuring the observer program to require 
observers on commercial halibut longline vessels.
    Response: NMFS disagrees that re-initiation of consultation with 
the FWS is required under section 7 of the Endangered Species Act 
(ESA), 16 U.S.C. 1536.
    Section 7 of the ESA and implementing regulations at 50 CFR part 
402 require each federal agency, in consultation with either the FWS or 
NMFS depending on the species involved, to insure that any action 
authorized, funded or carried out by such agency is not likely to 
jeopardize the continued existence of any endangered or threatened 
species or result in the destruction or adverse modification of 
critical habitat of any endangered or threatened species. In April 
1997, NMFS re-initiated consultation regarding the effects of the 
Pacific halibut commercial fishery on the endangered short-tailed 
albatross. In March 1998, the FWS issued its 1998 Biological Opinion 
that the Pacific halibut fishery is not likely to jeopardize the 
continued existence of the endangered short-tailed albatross.
    The 1998 Biological Opinion included an incidental take statement 
authorizing incidental take of up to two short-tailed albatross every 
two years. It stated that, as provided in 50 CFR 402.16, re-initiation 
of formal consultation is required ``when discretionary Federal agency 
involvement or control over the action has been retained (or is 
authorized by law) and if: (1) The amount or extent of incidental take 
is exceeded; (2) new information reveals effects of the agency action 
that may affect listed species or critical habitat in a manner or to an 
extent not considered in this opinion; (3) the agency action is 
subsequently modified in a manner that causes an effect to the listed 
species or critical habitat not considered in this opinion; or (4) a 
new species is listed or critical habitat designated that may be 
affected by the action.'' 1998 Biological Opinion, page 30. The 1998 
Biological Opinion analyzed the effects of authorizing the commercial 
halibut longline fishery in the Bering Sea Aleutian Islands and Gulf of 
Alaska on the short-tailed albatross. The halibut and sablefish harvest 
quotas have been managed under the IFQ Program since 1995; 
specifically, the IFQ Program analyzed in the 1998 Biological Opinion 
allocates the entire total TACs of sablefish and Pacific halibut to the 
IFQ fleets commercially fishing for these species. In other words, 
revoking inactive QS will not increase the number of hooks deployed in 
the fishery relative to the level of harvest analyzed in the 1998 
Biological Opinion, because that opinion assessed the possibility of a 
100 percent harvest rate, which is higher than the current actual 
harvest rate. Furthermore, the amounts of sablefish and Pacific halibut 
likely to be made available for harvest by this final rule constitute 
only a very small proportional increase in harvest of the sablefish and 
Pacific halibut TACs. For example, in 2011, 204 QS holders out of a 
total of 2,954 held inactive QS, and as a result, approximately .02 
percent of the IFQ TAC for halibut and sablefish was not harvested. 
Consequently, NMFS determines that the final rule does not modify 
agency action in a manner that causes an effect to the short-tailed 
albatross that was not considered in the 1998 Biological Opinion.
    Furthermore, FWS previously concurred that revised NMFS regulations 
implementing improved seabird avoidance measures in the hook-and-line 
fisheries off Alaska are not likely to adversely affect the short-
tailed albatross. Thus, NMFS disagrees that improved seabird avoidance 
measures and revised regulations to implement these measures is a 
change in the action requiring re-initiation of consultation.
    In addition, although the short-tailed albatross population has 
increased, NMFS disagrees that this population increase amounts to a 
change in the environmental baseline that reveals effects of the action 
that may affect the short-tailed albatross in a manner or to an extent 
not considered in the 1998 Biological Opinion. In the 1998 Biological 
Opinion, FWS analyzed the upward trend in the short-tailed albatross 
population and expected this trend to continue, which it has. Because 
the 1998 Biological Opinion considered the effects of the halibut 
fishery on an increasing population of short-tailed albatross, NMFS 
disagrees that the upward population trend is new information 
constituting a change in the baseline. Therefore, re-initiation of 
formal consultation is not required based on the increasing population 
trend of short-tailed albatross that was analyzed in the 1998 
Biological Opinion.
    NMFS recognizes the commenter's concern about the effects of the 
commercial Pacific halibut longline fishery on short-tailed albatross. 
NMFS agrees that data collected by observers on commercial halibut 
longline vessels will likely improve the knowledge of the effects this 
fishery might have on the short-tailed albatross. The 1998 Biological 
Opinion's reasonable and prudent measures include a requirement to 
implement a plan to investigate all options for monitoring the Pacific 
halibut fishery in waters off Alaska. In October 2010, the North 
Pacific Fishery Management Council recommended that the halibut fishery 
be subject to observer coverage under the restructured North Pacific 
observer program. The extent of observer coverage in the halibut 
fishery and the implementation date of the restructured observer 
program have yet to be determined. NMFS is developing the proposed rule 
for the restructured observer program and will inform the public of the 
potential effects of this action when the details become available.
    While NMFS does not believe that reinitiating section 7 
consultation is warranted at this time, NMFS is compiling research data 
that will support a future re-evaluation of the effects of the Pacific 
halibut and groundfish fisheries off Alaska on short-tailed albatross, 
Steller's eider, and spectacled eiders. This explanation will include 
updated information on the improved seabird avoidance and habitat 
protection measures, new seabird bycatch mitigation research, and the 
potential impacts of a restructured observer program. NMFS anticipates 
that the requisite information and analyses will be available in the 
next year. NMFS is working with the public on Alaska fisheries issues 
that may affect ESA-listed species and will keep the public informed of 
the progress in developing the restructured observer program to ensure 
concerns are addressed.
    Comment 2: Delay the inactive QS action until alternative options 
are identified for residents of small rural communities (less than 
1,500 people) in the Gulf of Alaska to sell their category D QS to a 
Community Quota Entity (CQE) that represents the community. Revoking 
inactive QS would preempt future opportunity to transfer inactive 
category D QS to CQEs. Quota share is specific to regulatory areas and 
vessel categories. Halibut category D QS is specific to vessels 35 feet 
or less, length overall.

[[Page 29561]]

    Response: This action provides IFQ permit holders with inactive QS 
an opportunity to retain QS by request and avoid removal of inactive 
QS. Permit holders responding to NMFS that they want to retain their 
inactive halibut or sablefish QS will have their QS status changed to 
active. IFQ permit holders also have the option to fish or transfer the 
QS to activate it any time prior to NMFS revoking the QS. Accordingly, 
NMFS sees no need to delay the action.
    The CQE Program allows CQEs representing communities in IPHC 
regulatory Areas 2C and Area 3A to purchase halibut category B and C QS 
and prohibits them from purchasing halibut category D QS. One of the 
primary reasons the Council established this prohibition was to help 
ensure halibut category D QS would continue to be available to new 
entrants and crew members who wanted to start their own businesses. 
There was concern that an influx of CQEs in Area 2C and 3A would drive 
up the market for halibut category D QS, and result in more expensive, 
and less available, QS for individuals. Generally, category D QS are 
the least expensive category of halibut QS, as they can only be used on 
the smallest category of vessel. Category D QS are often used by 
smaller operations, or new entrants, and there is a relatively small 
amount of halibut category D QS designated for each management area.
    After NMFS received Comment 2, the commenters submitted the comment 
as a proposed regulatory change to the Council. In February 2011 the 
Council recommended that NMFS amend Federal regulations to allow Area 
3A CQEs to purchase a limited amount of halibut category D QS with 
restrictions. NMFS intends to develop a proposed rule according to the 
Council's regulatory recommendation and, once approved, could proceed 
with a call for public comments. Following a review of the public 
comments on the proposed rule and subject to approval by the Secretary, 
NMFS may publish a final rule to implement this action. Holders of 
inactive halibut QS who reside in CQE communities who want to retain 
their inactive QS may do so by responding to NMFS in writing within the 
single 60-day response period and requesting that NMFS change the 
status of his or her QS and IFQ to ``active.'' If regulations are 
changed in the future to allow CQE purchase of halibut category D QS, 
then persons who activate their QS by request, lease, or by documenting 
a landing by the deadline in this action could transfer their activated 
QS to enhance fishery participation of individual CQE community 
residents and CQE communities.

Changes From the Proposed Rule

    NMFS has changed the method of response to the Inactive QS Notice 
from mail only as in the proposed rule. NMFS determined that the 
requirement that response to the Inactive QS Notice be submitted only 
by U.S. Mail was too restrictive. Therefore, NMFS has broadened the 
method of submission to include hand-carried responses or responses by 
facsimile. This change is consistent with methods of submission 
authorized in other regulations under 50 CFR part 679, where NMFS has 
required an application or response by a date certain. NMFS did not 
make any other changes from the proposed rule, published August 23, 
2010 (75 FR 51741).

Classification

    The Administrator, Alaska Region, NMFS, determined that this rule 
is necessary for the conservation and management of the fisheries 
managed under the halibut and sablefish IFQ Program and that it is 
consistent with the Halibut Act, the FMPs, the national standards and 
other provisions of the Magnuson-Stevens Act, and other applicable 
laws.
    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the International Pacific Halibut Commission, the Pacific 
Fishery Management Council, the North Pacific Fishery Management 
Council, and the Secretary of Commerce. Section 5 of the Northern 
Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the 
Regional Council having authority for a particular geographical area to 
develop regulations governing the allocation and catch of halibut in 
U.S. Convention waters as long as those regulations do not conflict 
with IPHC regulations. This action is consistent with the Council's 
authority to allocate halibut catches among fishery participants in the 
waters in and off Alaska.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This final rule also complies with 
the Secretary's authority under the Halibut Act to implement management 
measures for the halibut fishery.

Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) was prepared for 
this rule as required by section 604(a) of the Regulatory Flexibility 
Act (RFA). A FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA and NMFS' responses to those 
comments, if any, and a summary of the analyses completed to support 
the action. A copy of the RIR/FRFA is available from NMFS (see 
ADDRESSES).
    The proposed rule was published in the Federal Register on August 
23, 2010 (75 FR 51741). An RIR/IRFA was prepared and described in the 
``Classification'' section of the preamble to the proposed rule. A copy 
of the RIR/IRFA is available from NMFS (see ADDRESSES). The public 
comment period ended on September 22, 2010. NMFS received two unique 
comment letters. Although neither of the comments directly addressed 
the IRFA or significant economic impact on small entities, Comment 2 
referred to the potential for indirect economic impact on CQEs, which 
are not directly regulated by this action. No changes were made in the 
final rule from the proposed rule.
    The RFA emphasizes (1) predicting adverse impacts on (1) small 
entities as a group distinct from other entities; and (2) considering 
alternatives that may minimize the significant economic impact on small 
entities, while still achieving the stated objectives of the action. 
The requirements for a FRFA are contained in section 604(a) of the RFA 
(5 U.S.C. 604(a)) and a complete description of the requirements are 
listed in the FRFA. The need for, and the objectives of, this final 
rule are in the section of the preamble titled ``Description of Final 
Action.'' The legal basis for this final rule is described in the 
preamble section titled ``Management of the Halibut and Sablefish IFQ 
Fisheries.'' A summary of the public comments and NMFS' responses are 
presented in the preamble section titled ``Public Comments.'' 
Descriptions of the voluntary compliance requirements of the rule are 
subsumed in sections of the preamble titled ``Options for Persons 
Holding Inactive Quota Share'' and ``Written Response.'' Sections of 
the preamble titled ``Public Notice'' and ``Official Notice and 
Record'' describe multiple steps NMFS has taken to alert persons with 
inactive QS of their options to activate QS and minimize economic 
impacts on these small entities from revoking their QS. Each of the 
above RFA requirements that are discussed in the preamble are not 
repeated here. The remaining FRFA requirements are to describe and 
estimate the current number of small entities to which the rule 
applies, explain why each one of the other alternatives to the rule 
that

[[Page 29562]]

could have affected the impact on small entities was rejected, and 
include a statement of the factual, policy, and legal reasons for 
selecting the alternative implemented by this action. These FRFA 
requirements are summarized here.
    For purposes of a FRFA, the Small Business Administration (SBA) has 
established that a business involved in fish harvesting is a small 
entity if it is independently owned and operated, not dominant in its 
field of operation (including its affiliates), and has combined annual 
gross receipts not in excess of $4 million for all its affiliated 
operations worldwide. A seafood processor is a small entity 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 
or temporary, or other basis at all its affiliated operations. Because 
the SBA does not have a size criterion for businesses that are involved 
in both the harvesting and processing of seafood products, NMFS has in 
the past applied, and continues to apply, the SBA's fish harvesting 
criteria for these businesses because catcher/processors are first and 
foremost fish harvesting businesses. Therefore, a business involved in 
both the harvesting and processing of seafood products is a small 
business if it meets the $4 million criterion for fish harvesting 
operations.
    Directly regulated entities in this action are persons that hold 
halibut QS or sablefish QS and whose future harvests would be deducted 
from the species' TAC. Currently, NMFS does not possess sufficient 
ownership and affiliation information to determine the precise number 
of QS holders considered small entities in the IFQ Program. Lacking 
more precise data on small entities, NMFS estimated the maximum number 
of small entities that are adversely impacted by this action to equal 
all inactive halibut QS and inactive sablefish QS holders, or 219 
entities. The analysis also assumes that recipients of the additional 
QS from the proportional distribution of the IFQ from revoked QS will 
benefit from this rule, and these entities are therefore are not 
discussed further.
    Small entities that could be impacted by this action are the QS 
holders whose inactive QS will be revoked unless they voluntarily 
comply with the requirements specified in regulation to retain the 
impacted QS. At the end of 2010, the most recent year with complete 
data, the amount of inactive halibut QS was 195,038 units, or 19,374 
net lb (8.8 mt), held by 219 unique persons, which is the maximum 
number of small entities that could be impacted by this action. The 
maximum number of small entities holding inactive sablefish QS that 
could be revoked by this action equals 3 unique persons. These small 
entities held 9,281 inactive QS units of sablefish, equal to 661 round 
lb (0.3 mt) of sablefish.
    Even if a small entity's QS and associated IFQ is revoked by this 
action, the initial issuee status of the QS recipient is not 
extinguished should the QS holder decide to re-enter the IFQ fishery. 
There is no projection of the number of persons who will have their 
inactive QS revoked but who will re-enter the halibut or sablefish 
fishery at some point in the future. At most the number of persons will 
not exceed the total number of QS holders that will have QS and 
associated IFQ revoked at the end of the 60-day response period.
    It is not possible to determine the precise number of the 219 small 
entities holding inactive halibut and sablefish QS, as of the end of 
2010, that will activate their QS before the end of the 60-day notice 
period. Not all activated QS can be expected to result in landed catch 
as some entities may choose to hold QS for reasons other than for 
fishing. However, the amount of QS retained under such circumstance 
would be miniscule compared to the overall amount of QS allocated to 
both fisheries.
    Small entities that transferred some or all of their halibut or 
sablefish IFQ but never harvested any IFQ halibut or IFQ sablefish will 
not be subject to revocation of their QS under this final rule.
    All inactive QS revoked by NMFS at the end of the 60-day notice 
period will be removed from the NMFS QS database. The pounds of annual 
IFQ represented by the revoked QS will be distributed among IFQ permit 
holders with active QS in an amount proportional to their IFQ 
allocation in the years following the revocation.
    Based on available data and more general information concerning the 
probable economic activity of vessels in the halibut and sablefish IFQ 
fisheries, no vessel operation directly regulated by the IFQ Program 
could have been used to land more than $4 million in combined gross 
receipts (the maximum gross revenue threshold for a small catcher 
vessel) in 2005 or 2008, the years analyzed for the Council's 2006 and 
2009 selection of a preferred alternative. All entities directly 
regulated by this action are considered small entities under the RFA, 
and have gross annual revenues less than $4 million. The action will 
not have a significant adverse impact on affected small entities 
relative to the status quo, no action alternative.
    NMFS considered the effects and costs of this action in analysis of 
alternatives independent of all entities status as small entities. Each 
one of the other significant alternatives considered by the agency and 
rejected by the Council also impacted small entities. The Council 
reviewed the status quo, no action alternative of not revoking inactive 
halibut or sablefish QS, and two action alternatives to withdraw 
inactive QS. The two action alternatives were merged into one 
alternative when the provision for a lottery to redistribute revoked QS 
to eligible persons was rescinded from the preferred alternative. The 
lottery provision depended on there being at least 50,000 lbs (22.7 mt) 
of inactive QS units available for revocation. Because NMFS and the 
Council determined the amount of inactive QS fell below that threshold 
for all IPHC regulatory areas, they decided to eliminate this 
provision. NMFS is not aware of any additional alternatives to those 
considered that would accomplish the objectives of this action and that 
would minimize adverse economic impact of this action on small 
entities. Compared to the status quo, this action allows holders of 
inactive halibut or sablefish QS to voluntarily relinquish their 
inactive QS or transfer that QS prior to the end of the 60-day response 
period. The objective of this action is to relieve an operational 
restriction created by a lack of regulatory authority. The original 
impetus for the IFQ Program QS lottery has been superseded by ongoing 
changes in the characteristics of the halibut and sablefish fisheries 
QS holdings--specifically, the increased transfer of inactive QS and 
elimination of latent IFQ.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The guide explains the actions an IFQ permit holder with 
inactive QS may voluntarily take to avert NMFS revoking inactive QS 
pursuant to this final rule. The preamble to this final rule serves as 
the Small Entity Compliance Guide. This action does not require any 
additional compliance from small entities that is not described in the 
preamble. Copies of the final rule may be obtained from the

[[Page 29563]]

NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

Collection of Information

    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA), which has been approved by the 
Office of Management and Budget (OMB) under Control No. 0648-0272. 
Public reporting burden for a letter requesting NMFS not revoke IFQ 
Program QS is estimated to average 15 minutes per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 
email to [email protected], or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: May 15, 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 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for part 679 continues to read as follows:

    Authority:  16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447.


0
2. In Sec.  679.40, add paragraph (a)(10) to read as follows:


Sec.  679.40  Sablefish and halibut QS.

* * * * *
    (a) * * *
    (10) NMFS revokes inactive QS if the person holding inactive QS 
does not:
    (i) Respond in writing to NMFS, within 60 days after NMFS issues a 
Notice of Determination of Quota Share Inactivity (Inactive QS Notice) 
sent to the address of record as defined at Sec.  679.43(e) of this 
part, requesting that the inactive QS not be revoked. Responses must be 
received by NMFS no later than the date contained on the Inactive QS 
Notice
    (ii) For purposes of paragraph (a)(10) of this section, ``respond 
in writing'' means write a statement directing NMFS to change the 
status of QS to ``active'' and sign and date the statement or complete 
the form attached to the Inactive QS Notice and send by U.S. Mail, 
courier, hand delivery, or facsimile to the NMFS, Alaska Region as 
provided on the Inactive QS Notice and printed on the front side of the 
form. The written response must be received by NMFS no later than the 
date contained on the Inactive QS Notice or if sent by mail, postmarked 
by that date. If delivered by hand or courier, the receiving date is 
the date the notice is stamped received by NMFS.
    (iii) For purposes of paragraph (a)(10) of this section, the term 
``inactive QS'' means halibut QS or sablefish QS, held by a person who 
received an initial allocation of halibut QS or sablefish QS and has 
not taken any of the following actions:
    (A) Transferred any halibut QS or sablefish QS pursuant to Sec.  
679.41;
    (B) Transferred any halibut IFQ or sablefish IFQ pursuant to Sec.  
679.41;
    (C) Landed any halibut authorized by IFQ halibut permit(s) issued 
to that person; or
    (D) Landed any sablefish authorized by IFQ sablefish permit(s) 
issued to that person.
* * * * *

[FR Doc. 2012-12153 Filed 5-17-12; 8:45 am]
BILLING CODE 3510-22-P