[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Proposed Rules]
[Pages 29955-29961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12265]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120509433-2433-01]
RIN 0648-BC00


Fisheries Off West Coast States; Pacific Coast Groundfish Fishery 
Management Plan; Trawl Rationalization Program

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: This proposed action would delay or revise several portions of 
the Pacific Coast Groundfish Fishery Trawl Rationalization Program 
(program) regulations. These changes are necessary to enable the 
National Marine Fisheries Service (NMFS) to implement new regulations 
for the program to comply with a court order requiring NMFS to 
reconsider the initial allocation of Pacific whiting (whiting) to the 
shorebased Individual Fishing Quota (IFQ) fishery and the at-sea 
mothership fishery. The proposed rule would affect the transfer of 
Quota Share (QS) and Incidental Bycatch Quota (IBQ) between QS accounts 
in the shorebased individual IFQ fishery, and severability in the 
mothership fishery, both of which would be delayed until NMFS can 
implement any necessary new regulations in those areas required by the 
court's order.

DATES: Comments on this proposed rule must be received no later than 5 
p.m., local time on June 29, 2012.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2012-0062, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal, at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NOAA-NMFS-2012-
0062 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
the right of that line.
     Fax: 206-526-6736; Attn: Ariel Jacobs.
     Mail: William W. Stelle, Jr., Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070; Attn: Ariel Jacobs.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (if submitting comments via the Federal e-Rulemaking 
portal, enter ``N/A'' in the relevant required fields if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats 
only.

FOR FURTHER INFORMATION CONTACT: Ariel Jacobs, 206-526-4491; (fax) 206-
526-6736; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    In January 2011, NMFS implemented the trawl rationalization program 
for the Pacific coast groundfish fishery's trawl fleet (see 75 FR 
78344; Dec. 15, 2010). The program was adopted through Amendment 20 to 
the Pacific Coast Groundfish Fishery Management Plan (FMP) and consists 
of an IFQ program for the shorebased trawl fleet (including whiting and 
non-whiting fisheries); and cooperative (coop) programs for the at-sea 
mothership (MS) and catcher/processor (C/P) trawl fleets (whiting 
only). Allocations to the limited entry trawl fleet for certain species 
were developed under Amendment 21 to the FMP, also implemented in 2011.
    These rules became the subject of litigation, in Pacific Dawn, LLC 
v. Bryson, No. C10-4829 TEH (N.D. Cal.). The plaintiffs, fishing vessel 
owners and fishing processers represented by the named party, Pacific 
Dawn, LLC, challenged several aspects of the rules, but in particular 
the initial allocation of whiting QS in the shorebased IFQ and 
mothership fisheries. Following a decision on summary judgment that 
NMFS had not considered the correct data in setting its initial whiting 
allocations, on February 21, 2012, Judge Henderson issued an order 
remanding the regulations setting the initial allocation of whiting for 
the shorebased IFQ fishery and the at-sea mothership fishery ``for 
further consideration'' consistent with the court's December 22, 2011 
summary judgment ruling, the Magnuson-Stevens Act (MSA), and all other 
governing law. The Order also requires NMFS to implement revised 
regulations setting the quota before the 2013 Pacific whiting fishing 
season begins on April 1, 2013.
    On February 29, 2012, NMFS informed the Pacific Fishery Management 
Council (Council) of the order issued in Pacific Dawn, LLC v. Bryson. 
NMFS also requested that the Council initiate the reconsideration of 
the initial allocations for QS of whiting in the shorebased IFQ fishery 
and for whiting catch history assignments in the at-sea mothership 
fishery. NMFS requested the Council schedule this issue to be discussed 
at its April, June, and September 2012 meetings. NMFS also stated that 
a rulemaking was needed to delay or revise portions of the existing 
regulations setting these allocations while the Council and NMFS 
reconsidered the initial allocation of whiting, and informed the 
Council of its intent to publish an Advance Notice of Proposed 
Rulemaking (ANPR) on that reconsideration.
    At the Council's March 2012 meeting, the Council added 
reconsideration of the allocation of whiting to the agenda for its 
April, June and September 2012 meetings. At the Council's April 
meeting, the Council adopted a range of alternatives for analysis. The 
Council will review a draft analysis of the alternatives and select a 
preliminary preferred alternative at its June meeting. At its September 
meeting, the Council will choose a final preferred alternative and make 
a recommendation to NMFS.
    NMFS published an ANPR on April 4, 2012 (77 FR 20337) that, among 
other things, announced the court's order, the Council meetings that 
would be addressing the whiting reconsideration, and NMFS' plan to 
publish two rulemakings in response to the court order. These two 
rulemakings are referred to as Reconsideration of Allocation of 
Whiting, Rules 1 and 2 (RAW 1 and RAW 2, respectively). NMFS is using 
emergency action authority under the MSA 305(c)(1) for RAW 1; RAW 2 
will go through the standard FMP Council process followed by a proposed 
and final rule. The first rulemaking, RAW 1, which is the subject of 
this proposed rule, would delay or revise several portions of the 
regulations while NMFS and the Council reconsider the initial 
allocation of whiting, and until NMFS implements

[[Page 29956]]

any necessary new regulations in response to the court order. The 
second rulemaking, RAW 2, would take in to account the Council's 
September 2012 recommendation and reconsideration of the dates used for 
initial allocation of whiting for the shorebased IFQ and at-sea 
mothership fisheries. The proposed rule for RAW 2 is scheduled to 
publish in November 2012, and the final rule in March 2013. The RAW 2 
rule is scheduled to be effective by April 1, 2013, consistent with the 
court order.

Comments on the ANPR

    NMFS received four substantive comments on the ANPR that addressed 
how delaying the ability to transfer QS and IBQ between QS accounts in 
the shorebased IFQ fishery might impact the 2-year period QS holders 
have to divest themselves of excess QS (the divestiture period). After 
considering these comments, NMFS proposes allowing additional time for 
divestiture, such that once QS transfer is allowed, QS participants in 
the shoreside IFQ fishery would then have 2 years to divest QS in 
excess of the accumulation limit.
    As stated above, NMFS is using emergency action authority under MSA 
305(c)(1) for RAW 1. Under that authority, NMFS, by delegation from the 
Secretary, can implement regulations for an FMP without going through 
the Council process where NMFS finds that an emergency involving a 
fishery exists. 16 U.S.C. 1855(a). The rules promulgated under such 
circumstances must ``address the emergency.'' 16 U.S.C. 1855(c)(1) and 
(2). NMFS' internal guidance defining ``an emergency'' is in the 
Federal Register. 62 FR 44421; August 21, 1997. This guidance defines 
an emergency as a situation that (1) Arose from recent, unforeseen 
events, (2) presents a serious conservation problem in the fishery, and 
(3) can be addressed through interim emergency regulations for which 
the immediate benefits outweigh the value of advance notice, public 
comment, and the deliberative consideration of the impacts on 
participants to the same extent as would be expected under the formal 
rulemaking process.
    Here, NMFS finds that an emergency exists that can only be 
addressed through this emergency action. Due to the court's order in 
Pacific Dawn, several existing provisions of trawl regulations must be 
delayed while NMFS and the Council reconsider the initial allocation of 
Pacific whiting. Specifically, regulations with an effective date of 
September 1, 2012, which would allow catch history assignment 
severability from the mothership/catcher-vessel (MS/CV) endorsed 
limited entry trawl permit, and other relevant provisions with an 
effective date of January 1, 2013, need to be delayed. However, there 
is insufficient time to go through the standard FMP Council process 
prior to the required effective date of this proposed rule. If NMFS 
does not take this action, then NMFS would not be able to implement the 
following rulemaking (RAW 2) that is required by the court's order. 
Accordingly, NMFS finds an emergency exists that can only be remedied 
through this emergency action.
    The emergency action authority allows NMFS to delay this and other 
regulations related to the reconsideration of allocation of whiting for 
180 days, with the possibility for an additional 185 day extension if 
there is a public comment period and the Council is concurrently 
addressing the reconsideration. NMFS intends to extend the delay of 
regulations for the additional 185 days, and relevant regulations may 
be further delayed as a part of the RAW 2 rulemaking. The RAW 2 
rulemaking will be done through a three-meeting Council process with a 
preliminary preferred alternative selected at the June 2012 Council 
meeting, and a final preferred alternative selected at the September 
Council meeting, followed by the publication of proposed and final 
rules. Replacement provisions for the delayed regulations and the 
reconsideration will be included in RAW 2. RAW 2 is scheduled to 
publish by the beginning of the 2013 fishing season.
    This proposed action for RAW 1 would:
    (1) Delay the ability to transfer QS and IBQ between QS accounts in 
the shorebased IFQ fishery;
    (2) Delay the requirement to divest excess quota share amounts for 
the shorebased IFQ fishery and the at-sea mothership fishery;
    (3) Delay the ability to change MS/CV endorsement and catch history 
assignments from one limited entry trawl permit to another;
    (4) Modify the issuance provisions for quota pounds (QP) for the 
beginning of fishing year 2013 to preserve NMFS' ability to deposit the 
appropriate final amounts into IFQ accounts based on any recalculation 
of QS allocations. In the meantime, NMFS proposes to deposit into 
accounts an interim amount of QP based on the shorebased trawl 
allocation, as reduced by the amount of QP for whiting trips for 
whiting, and for species caught incidentally in the whiting fishery 
(including lingcod, Pacific cod, canary, bocaccio, cowcod, yelloweye, 
Pacific ocean perch, widow, English sole, darkblotched, sablefish N. of 
36[deg]N lat., yellowtail N. of 40[deg]10' N. lat., shortspine N. of 
34[deg]27' N. lat., minor slope rockfish N. of 40[deg]10' N. lat., 
minor slope rockfish S. of 40[deg]10' N. lat., minor shelf rockfish N. 
of 40[deg]10' N. lat., minor shelf rockfish S. of 40[deg]10' N. lat., 
and other flatfish). The remainder of the interim QP would be deposited 
in accounts at the start of the whiting primary season.
    This action also advises the at-sea mothership fishery that the 
response to the court order may impact processor obligations and 
cooperative (coop) formation if whiting catch history assignments are 
recalculated, and announces further details on the process for the 
affected public to review and correct, if necessary, their landings and 
delivery data through 2010, since this data may be used for 
reallocation.
    Each of these elements is described in further detail below in this 
preamble.

Delay Transfer of QS and IBQ

    The trawl rationalization program, as implemented in January 2011, 
delayed QS holders' ability to transfer QS and IBQ between QS accounts 
in the Shorebased IFQ fishery through December 31, 2012 (i.e., transfer 
could begin in 2013). This proposed action would further delay QS 
holders' ability to transfer QS and IBQ between QS accounts. This 
suspension of QS transfers would be a temporary action, but is 
necessary to avoid complications which would occur if QS permit owners 
in the shorebased IFQ fishery were allowed to transfer QS percentages 
prior to the whiting allocation reconsideration. Due to the complexity 
of online transactions occurring within the fishery, NMFS has 
determined that it is necessary to suspend QS transfers for all 
species, not just those directly impacted by the reconsideration. If QS 
permit owners were allowed to transfer QS percentages of whiting and 
incidentally caught species prior to the completion of the 
reconsideration, then it would be difficult, if not impossible, to 
track QS in order to resolve discrepancies or changes to QS 
allocations. Additionally, if QS transfers were allowed before the 
completion of the reconsideration of whiting allocations, QS permit 
owners would be transferring QS amounts that potentially could increase 
or decrease after the reconsideration, possibly undermining business 
relationships and confusing buyers and sellers.
    Also, if whiting QS is reallocated, depending on the formula used, 
there may be new QS permit owners, while some current QS permit owners 
who received initial whiting QS allocations

[[Page 29957]]

may not receive any under a recalculation. Moreover, because QS units 
do not have a unique identifier, QS loses its identity following a 
transfer; therefore tracking QS through transfers is extremely 
difficult. This rule would re-write Sec.  660.140(d)(3)(ii)(B), 
paragraph (2) to state that QS or IBQ cannot be transferred, except 
under U.S. court order or authorization, and as approved by NMFS. 
Additionally, the rule would state that QS and IBQ cannot be 
transferred to another QS permit owner, except under U.S. court order 
or authorization and as approved by NMFS.

Delay the Requirement To Divest Excess QS in the Shorebased IFQ Fishery 
and the At-sea Mothership Fishery

    Delayed implementation of regulations that allow for the transfer 
of QS could impact divestiture for those QS permit owners with QS over 
the accumulation limits (also called QS control limits) in the 
shorebased IFQ fishery. The current regulations give QS permit owners 
with excess QS two years after QS transfer begins to divest their 
excess QS amounts. In other words, during 2013 and 2014, QS permit 
owners with QS over the accumulation limits specified at Sec.  
660.140(d)(4)(i) must sell their excess QS by the end of 2014. At the 
start of 2015, any excess QS owned by QS permit owners would be 
permanently revoked by NMFS and redistributed to other QS permit owners 
in proportion to their current QS and IBQ holdings. Delaying QS 
transfers would shorten the divestiture period because QS could not be 
transferred during the reconsideration.
    After considering informal public comments at the April 2012 
Council meeting that the QS permit owners should retain a full two-year 
period for divestiture, NMFS proposes to revise the regulations at 
Sec.  660.140(d)(4)(v) to state that any person that has an initial 
allocation of QS or IBQ in excess of the accumulation limits will be 
allowed to receive that allocation, but must divest themselves of the 
excess QS or IBQ during the first two years once QS transfers are 
allowed. Maintaining the full two years for divestiture would provide 
QS permit owners with sufficient time to plan and arrange sales of 
excess QS, as originally recommended by the Council for this provision 
of the trawl rationalization program.
    Divestiture for the at-sea mothership sector will be addressed as 
necessary in RAW 2, because MS/CV endorsed limited entry trawl permit 
holders must divest their excess QS by December 31, 2012. Currently no 
member of the mothership sector has QS in excess of the accumulation 
limits. However, some members of this sector may exceed the 
accumulation limits following the reconsideration. Thus, NMFS will 
consider through the Council process for RAW 2 whether it is necessary 
to reinstate a divestiture period based on the reconsideration.

Delay the Ability To Change MS/CV Endorsement and Catch History 
Assignment

    This proposed action would delay the ability of limited entry trawl 
permit owners in the mothership sector to transfer MS/CV endorsements 
and catch history assignments (CHA) between limited entry trawl 
permits. The rationale for this action is similar to that for delaying 
QS transfers in the shorebased IFQ sector; if permit owners are allowed 
to transfer ownership of catch history assignments before the 
reconsideration takes place, then it will be difficult for NMFS to 
track changes to the initial allocations of whiting and other 
incidentally caught species. Delaying CHA transfers is necessary 
because the values of CHA could change following the reconsideration, 
and it's possible that some CHA allocations could be reduced to zero. 
Accordingly, this rule would revise Sec.  660.150 (g)(2)(iv)(B) and (C) 
to change MS/CV endorsement registration in order to temporarily delay 
severability, except in the cases of permit combination.
    As described earlier in the preamble, NMFS will not suspend 
transfer of the limited entry trawl permit between permit owners (i.e., 
changes in permit ownership) or between vessels (i.e., change in permit 
registered to vessel). If NMFS reissues catch history assignments on 
MS/CV-endorsed limited entry trawl permits as a result of the 
reconsideration, NMFS will issue those permits to the permit owner of 
record with NMFS at the time of reissuance. Any person who is 
considering purchasing or otherwise obtaining ownership of an MS/CV 
endorsed permit should be aware that NMFS may change (increase or 
decrease) the current whiting catch history assignment given on the 
permit as a result of the reconsideration of the allocation whiting.

Deposit Interim QP Based on the Shorebased Trawl Allocation as Reduced 
by the Amount of QP for Whiting Trips for Whiting, and Species Caught 
Incidentally in the Whiting Fishery

    NMFS proposes to add regulatory language to allow it to deposit 
into QS accounts, on or about January 1, 2013, interim QP based on the 
shorebased trawl allocation as reduced by the amount of QP for whiting 
trips for whiting, and species caught incidentally in the whiting 
fishery. This proposal would enable the agency to allocate the 
appropriate final amounts based on any recalculation of QS allocations. 
Species caught incidentally in the whiting fishery (during whiting 
directed trips) include lingcod, Pacific cod, canary, bocaccio, cowcod, 
yelloweye, Pacific ocean perch, widow, English sole, darkblotched, 
sablefish N. of 36[deg]N lat., yellowtail N. of 40[deg]10' N. lat., 
shortspine N. of 34[deg]27' N. lat., minor slope rockfish N. of 
40[deg]10' N. lat., minor slope rockfish S. of 40[deg]10' N. lat., 
minor shelf rockfish N. of 40[deg]10' N. lat., minor shelf rockfish S. 
of 40[deg]10' N. lat., and other flatfish. These are the species for 
which the initial issuance allocation percentages for the whiting 
sector were greater than zero, as listed in the table at Sec.  
660.140(d) (8)(iv)(A)(10), or species for which the initial allocation 
is determined through the biennial specifications process (Sec.  
660.140(d) (8)(iv)(A)(10)). In other words, NMFS would not deposit all 
of the QP to QS accounts at the beginning of the year regardless of 
whether the final harvest specifications for 2013 are effective. NMFS 
will only deposit sufficient whiting QP for non-whiting directed trips; 
all other QP will be issued following the reconsideration and 
recalculation of initial allocations of whiting and associated, 
incidentally caught species. Therefore, NMFS proposes to add temporary 
regulations to Sec.  660.140(d)(1)(ii)(A) and (B) to specify that NMFS 
will hold back QP at the start of 2013.

Potential Impact on Processor Obligations and Coop Formation

    NMFS advises the at-sea mothership fishery that the response to the 
reconsideration may impact processor obligations and coop formation if 
whiting catch history assignments are recalculated. NMFS intends to 
announce any changes to the amount of catch history assignments 
associated with MS/CV-endorsed limited entry trawl permits by April 1, 
2013. The mothership sector has until March 31, 2013, to submit their 
coop permit applications to NMFS for that fishing year. The coop permit 
application includes a list of the catch history amounts associated 
with specific MS/CV-endorsed limited entry permits and which MS permit 
those amounts are obligated to. In addition, MS/CV-endorsed permit 
owners must obligate their associated catch history assignment to an MS 
permit by

[[Page 29958]]

September 1 of the prior year. Because both of these requirements may 
happen before NMFS has made its determination on the 2013 catch history 
assignments associated with MS/CV-endorsed permits, participants in the 
mothership fishery should be aware that this proposal may potentially 
impact their processor obligations, coop formation, and coop permit 
application. NMFS does not anticipate a need for regulatory changes to 
address these potential impacts and will work with any MS coop permit 
applicants if there are changes in catch history assignments from that 
noted in the 2013 coop permit application. For example, in the initial 
administrative determination for any 2013 MS coop permit application, 
NMFS could notify the coop manager of any changes in catch history 
assignments for MS/CV-endorsed permits associated with that coop. NMFS 
solicits public comment on this approach and any potential impacts on 
processor obligations or MS coop formation.

Process to Review, and if Necessary, Correct Data

    Potential participants of the trawl rationalization program should 
be aware that NMFS intends to continue to use landings data from the 
Pacific States Marine Fisheries Commission's PacFIN database and NMFS' 
Northwest Fisheries Science Center's Pacific whiting observer data from 
NORPAC (the North Pacific database) in reconsidering QS distribution 
for the trawl rationalization program, consistent with the approach 
used in 2009-2010. Landings data from state fish tickets, as provided 
by the states to the PacFIN database, would be used to determine 
allocations of IFQ QS for the shore-based whiting and nonwhiting 
harvesters and for the shore-based whiting processors. Landings data 
from the NORPAC database would be used to determine allocations of at-
sea QS for the whiting mothership catcher vessels.
    NMFS intends to follow the process it followed in 2009-2010, 
working with the PacFIN and NORPAC databases, to reevaluate the whiting 
allocations. Accordingly, NMFS will ``freeze'' the databases for the 
purposes of initial allocation on the date the proposed rule for RAW 2 
publishes in the Federal Register to allow NMFS time to compile the 
dataset and cross check the data for any errors. ``Freezing'' the 
databases means that NMFS will extract a snapshot of the databases as 
of the proposed rule publication date, and use those data to allocate 
QS. ``Freezing'' the databases is necessary to hold them constant for 
use during qualification and initial issuance of the trawl 
rationalization program, and to form an administrative record of the 
database at a given point in time. Following the ``freezing'' of the 
databases, any corrections to the ``frozen'' database would be made 
with NMFS through the processes set forth in future trawl 
rationalization rules. After NMFS extracts a copy of the databases, the 
PacFIN and NORPAC databases will continue to exist and be updated 
through their normal processes, but such updates may not be used for 
reconsidered allocations of QS.
    If potential participants in the trawl rationalization program have 
concerns over the accuracy of their data through 2010 in the PacFIN 
database, they should contact the state in which they landed those fish 
to correct any errors. Any revisions to an entity's fish tickets would 
have to be approved by the state in order to be accepted. State 
contacts are as follows: (1) Washington--Carol Turcotte (360-902-2253, 
[email protected]); (2) Oregon--Michelle Grooms (503-947-6247, 
[email protected]); and (3) California--Jana Robertson 
(562-342-7126, [email protected]). For concerns over the accuracy of 
NORPAC data, contact Neil Riley (206-861-7607, [email protected]). 
NMFS urges potential QS owners to go directly to the source where 
fisheries data is entered in the database to get it corrected before 
NMFS extracts the data for reconsideration of QS allocation.
    For limited entry permit or permit combination data, check NMFS Web 
site at http://www.nwr.noaa.gov/GroundfishHalibut/Groundfish-Permits/index.cfm or contact Kevin Ford (206-526-6115, [email protected]).
    NMFS also considered whether to allow limited entry permit 
transfers (i.e., changes in permit ownership) for all limited entry 
trawl endorsed permits, except for those with a catcher/processor 
endorsement, for a period of time during the reconsideration. This 
allowance would simplify reissuance of QS permits in the shorebased IFQ 
fishery or catch history assignments on MS/CV-endorsed limited entry 
trawl permits in the at-sea mothership fishery. After assessing this 
step, NMFS has determined that it is not necessary because RAW 2 has no 
planned application process. The initial allocation had a lengthy 
application process that necessitated not allowing limited entry permit 
(LEP) transfers while NMFS reviewed applications. For this time, NMFS 
will issue an initial administrative determination (IAD), but not an 
application. Accordingly, there should not be a need to freeze LEP 
transfers. If NMFS reissues QS permits and/or catch history assignments 
on MS/CV-endorsed limited entry trawl permits, NMFS proposes that those 
permits be issued to the permit owner of record with NMFS at the time 
of reissuance. These details will be developed as part of the RAW 2 
rulemaking.

Classification

    Pursuant to section 305(c)(1) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the Pacific Coast Groundfish FMP, other provisions of the MSA, and 
other applicable law, subject to further consideration after public 
comment.
    The Council prepared a final environmental impact statement (EIS) 
for Amendment 20 and Amendment 21 to the Pacific Coast Groundfish FMP; 
a notice of availability for each of these final EISs was published on 
June 25, 2010 (75 FR 36386). The Amendment 20 and 21 EISs and the draft 
EA are available on the Council's Web site at http://www.pcouncil.org/ 
or on NMFS' Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Trawl-Program/index.cfm. The regulatory 
changes in this proposed rule were categorically excluded from the 
requirement to prepare a NEPA analysis.
    This proposed rule has preliminarily been determined to be not 
significant for purposes of Executive Order 12866.
    NMFS prepared an initial regulatory flexibility analysis (IRFA), as 
required by section 603 of the Regulatory Flexibility Act (RFA) (5 
U.S.C. 601 et seq). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble. A copy of the IRFA is 
available from NMFS (see ADDRESSES).
    The Small Business Administration has established size criteria to 
define small entities under the RFA for all major industry sectors in 
the US, including fish harvesting and fish processing businesses. Under 
these criteria, a business involved in fish harvesting is a small 
entity 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 entity 
if it is independently owned and operated, not

[[Page 29959]]

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 entity if it 
meets the $4.0 million criterion for fish harvesting operations. A 
wholesale business servicing the fishing industry is a small entity 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 entity is one with annual receipts not 
in excess of $7.0 million.
    These regulations directly affect holders of QS and CHA, which 
include both large and small entities. Quota shares were initially 
allocated to 166 limited entry trawl permit holders (permits held by 
catcher processors did not receive QS, while one limited entry trawl 
permit did not apply to receive QS) and to 10 whiting processors. 
Thirty-six limited entry permits also have MS/CV endorsements and catch 
history assignments. Because many of these permits were owned by the 
same entity, these initial allocations were consolidated into 138 quota 
share permits/accounts. Of the 166 limited entry permits, 25 limited 
entry trawl permits are either owned or closely associated with a 
``large'' shorebased processing company or with a non-profit 
organization who considers itself a ''large'' organization. Nine other 
permit owners indicated that they were ``large'' companies. Almost all 
of these large companies are associated with the shorebased and 
mothership whiting fisheries. The remaining 133 limited entry trawl 
permits are likely held by ``small'' companies. Of the 10 shorebased 
processing companies (whiting first receivers/processors) that received 
whiting QS, three are ``small'' entities.
    NMFS is postponing the ability of QS permit owners to trade QS, as 
well as ability of MS/CV to trade their endorsements and catch history 
assignments separately from their limited entry permits. NMFS proposes 
this delay for QS species/species groups, because for many affected 
parties, their QS allocations (especially for bycatch species) are 
composed of whiting-trip calculations and non-whiting trip 
calculations. Currently, QS and IBQ trading has been prohibited for all 
species/species categories until January 1, 2013. By postponing these 
activities while NMFS and the Council reconsider the initial whiting 
allocations and implement any changes that result, NMFS seeks to 
minimize confusion and disruption in the fishery from trading quota 
shares that have not yet been firmly established by regulation. For 
example, as discussed above, if QS trading is not delayed, QS permit 
owners would be transferring QS amounts that potentially could change 
(increase or decrease) after the reconsideration. This situation would 
undermine business relationships and create confusion among buyers and 
sellers. As discussed above, RAW2 will implement any revised 
allocations of QS and MS/CV history assignments. RAW2 is expected to be 
effective by April 1, 2013 in time for the first whiting season opener 
off California, and before the major June 15 coastwide season opener. 
Similarly, NMFS also proposes to delay MS/CV's ability to transfer 
endorsement and associated catch history assignments from one limited 
entry trawl permit to another. However, the MS/CV's retain the ability 
to sell or trade a limited entry permit with the endorsement and catch 
history. All other MS/CV regulations remain unchanged. NMFS intends to 
announce any changes to the amount of catch history assignments 
associated with MS/CV-endorsed limited entry trawl permits by April 1, 
2013, prior to the May 15 start date for the whiting mothership 
fishery.
    Note that NMFS is not postponing fishing. To accommodate non-
whiting fisheries that begin at the beginning of the year, NMFS will 
provide QP to QS holders, but hold back sufficient QPs for whiting and 
all other incidentally caught species from the annual allocation of QPs 
to QS accounts made on or about January 1, 2013 to allocate the 
appropriate final amounts based on any recalculation of the whiting QS 
allocations. The proposed process of ``holding'' back sufficient QP is 
similar to the current process of starting the year with an interim low 
estimate of the annual whiting trawl allocation and then in the spring 
of each year adjusting the QP in the QS accounts with any additional 
QP, based on the final whiting trawl allocation. The final whiting 
trawl allocation is typically not established until early May, to 
incorporate the latest stock assessment information, review tribal 
allocation requests, and receive Pacific Fishery Management Council 
recommendations. In 2012, this process was modified to include the 
processes of the U.S.-Canada Pacific Whiting Treaty.
    These delays will be temporary in nature and will benefit both 
small and large entities. NMFS proposes these delays to help smooth the 
transition to any changes in Pacific whiting allocations, and to reduce 
uncertainty for existing and potential new holders of these 
allocations.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with the alternatives. Public comment is hereby solicited, 
identifying such rules. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    NMFS issued Biological Opinions under the Endangered Species Act 
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects 
of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget 
Sound, Snake River spring/summer, Snake River fall, upper Columbia 
River spring, lower Columbia River, upper Willamette River, Sacramento 
River winter, Central Valley spring, California coastal), coho salmon 
(Central California coastal, southern Oregon/northern California 
coastal), chum salmon (Hood Canal summer, Columbia River), sockeye 
salmon (Snake River, Ozette Lake), and steelhead (upper, middle and 
lower Columbia River, Snake River Basin, upper Willamette River, 
central California coast, California Central Valley, south/central 
California, northern California, southern California). These biological 
opinions have concluded that implementing the FMP for the Pacific Coast 
groundfish fishery is not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    NMFS issued a Supplemental Biological Opinion on March 11, 2006, 
concluding that neither the higher observed bycatch of Chinook in the 
2005 whiting fishery nor new data regarding salmon bycatch in the 
groundfish bottom trawl fishery required a reconsideration of its prior 
``no jeopardy'' conclusion. NMFS also reaffirmed its prior 
determination that implementation of the Groundfish PCGFMP is not 
likely to jeopardize the continued existence of any of the affected 
ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon 
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as 
threatened under the ESA. The 1999 biological opinion concluded that 
the bycatch of salmonids in the Pacific whiting fishery were almost 
entirely Chinook salmon, with little or no bycatch of coho, chum, 
sockeye, and steelhead.
    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

[[Page 29960]]

the effects of the operation of the Pacific coast groundfish fishery in 
2012. In this Opinion, NMFS concluded that the operation of the 
groundfish fishery 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 operation of the groundfish 
fishery is not likely to destroy or adversely modify designated 
critical habitat of green sturgeon or leatherback sea turtles. 
Furthermore, NMFS concluded that the operation of the groundfish 
fishery 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. This proposed rule does not modify any activities that would 
affect listed species; and thus the February 9, 2012 BO conclusions are 
applicable.
    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).

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: May 15, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 660 is proposed 
to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES

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

    Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 
U.S.C. 7001 et seq.

    2. In Sec.  660.140, revise paragraphs (d)(1)(ii)(A)(1) and (2), 
(d)(1)(ii)(B)(1) and (2), (d)(3)(ii)(B)(2) and (d)(4)(v) to read as 
follows:


Sec.  660.140  Shorebased IFQ Program.

* * * * *
    (d) * * *
    (1) * * *
    (ii) * * *
    (A) * * *
    (1) In years where the groundfish harvest specifications are known 
by January 1, deposits to QS accounts for IFQ species will be made on 
or about January 1. For 2013, NMFS will issue QP in two parts. On or 
about January 1, 2013, NMFS will deposit QP based on the shorebased 
trawl allocation as reduced by the amount of QP for whiting trips as 
specified at paragraph (d)(8)(iv)(A)(10) of this section for the 
initial issuance allocations of QS between whiting and non-whiting 
trips. In the spring of 2013, after NMFS has made a determination on 
the QS for QS permit owners, NMFS will deposit additional QP to the QS 
account, as appropriate.
    (2) In years where the groundfish harvest specifications are not 
known by January 1, NMFS will issue QP in two parts. On or about 
January 1, NMFS will deposit QP based on the shorebased trawl 
allocation multiplied by the lower end of the range of potential 
harvest specifications for that year. For 2013, that amount will be 
further reduced by the amount of QP for whiting trips as specified at 
paragraph (d)(8)(iv)(A)(10) of this section for the initial issuance 
allocations of QS between whiting and non-whiting trips. After the 
final harvest specifications are established later in the year, NMFS 
will deposit additional QP to the QS account. For 2013, this will occur 
in the spring after NMFS has made a determination on the QS for QS 
permit owners.
    (B) * * *
    (1) In years where the Pacific whiting harvest specification is 
known by January 1, deposits to QS accounts for Pacific whiting will be 
made on or about January 1. For 2013, NMFS will issue QP in two parts. 
On or about January 1, 2013, NMFS will deposit QP based on the 
shorebased trawl allocation as reduced by the amount of QP for whiting 
trips as specified at paragraph (d)(8)(iv)(A)(10) of this section for 
the initial issuance allocations of QS between whiting and non-whiting 
trips. In the spring of 2013, after NMFS has made a determination on 
the QS for QS permit owners, NMFS will deposit additional QP to the QS 
account, as appropriate.
    (2) In years where the Pacific whiting harvest specification is not 
known by January 1, NMFS will issue Pacific whiting QP in two parts. On 
or about January 1, NMFS will deposit Pacific whiting QP based on the 
shorebased trawl allocation multiplied by the lower end of the range of 
potential harvest specifications for Pacific whiting for that year. For 
2013, that amount will be further reduced by the amount of QP for 
whiting trips as specified at paragraph (d)(8)(iv)(A)(10) of this 
section for the initial issuance allocations of QS between whiting and 
non-whiting trips. After the final Pacific whiting harvest 
specifications are established later in the year, NMFS will deposit 
additional QP to QS accounts. For 2013, this will occur in the spring 
after NMFS has made a determination on the QS for QS permit owners.
* * * * *
    (3) * * *
    (ii) * * *
    (B) * * *
    (2) Transfer of QS or IBQ between QS accounts. QS or IBQ cannot be 
transferred to another QS permit owner, except under U.S. court order 
or authorization and as approved by NMFS. QS or IBQ may not be 
transferred to a vessel account.
* * * * *
    (4) * * *
    (v) Divestiture. Accumulation limits will be calculated by first 
calculating the aggregate non-whiting QS limit and then the individual 
species QS or IBQ control limits. For QS permit owners

[[Page 29961]]

(including any person who has ownership interest in the owner named on 
the permit) that are found to exceed the accumulation limits during the 
initial issuance of QS permits, an adjustment period will be provided 
after which they will have to completely divest their QS or IBQ in 
excess of the accumulation limits. QS or IBQ will be issued for amounts 
in excess of accumulation limits only for owners of limited entry 
permits as of November 8, 2008, if such ownership has been registered 
with NMFS by November 30, 2008. The owner of any permit acquired after 
November 8, 2008, or if acquired earlier, not registered with NMFS by 
November 30, 2008, will only be eligible to receive an initial 
allocation for that permit of those QS or IBQ that are within the 
accumulation limits; any QS or IBQ in excess of the accumulation limits 
will be redistributed to the remainder of the initial recipients of QS 
or IBQ in proportion to each recipient's initial allocation of QS or 
IBQ for each species. Any person that qualifies for an initial 
allocation of QS or IBQ in excess of the accumulation limits will be 
allowed to receive that allocation, but must divest themselves of the 
excess QS or IBQ during the first two years once QS transfers are 
allowed (the divestiture period). Holders of QS or IBQ in excess of the 
control limits may receive and use the QP or IBQ pounds associated with 
that excess, up to the time their divestiture is completed. Once the 
divestiture period is completed, any QS or IBQ held by a person 
(including any person who has ownership interest in the owner named on 
the permit) in excess of the accumulation limits will be revoked and 
redistributed to the remainder of the QS or IBQ owners in proportion to 
the QS or IBQ holdings in the immediately following year. No 
compensation will be due for any revoked shares.
* * * * *
    3. In Sec.  660.150,
    a. Revise paragraph (g)(2)(iv)(B);
    b. Remove and reserve paragraph (g)(2)(iv)(C) to read as follows:


Sec.  660.150  Mothership (MS) Coop Program.

* * * * *
    (g) * * *
    (2) * * *
    (iv) * * *
    (B) Application. NMFS is not accepting applications for a change in 
MS/CV endorsement registration at this time.
    (C) [Reserved]
* * * * *
[FR Doc. 2012-12265 Filed 5-18-12; 8:45 am]
BILLING CODE 3510-22-P