Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2012 Tribal Fishery for Pacific Whiting, 10466-10471 [2012-4113]

Download as PDF 10466 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules action as compared to the no action alternative are positive. The proposed action is almost certain to result in greater revenue from skate landings. Based on recent landing information, the skate fishery is able to land close to the full amount of skates allowable under the quotas. The estimated potential revenue from the sale of skates under the proposed catch limits is approximately $9.8 million per year, compared to $5.8 million if this action were not implemented. However, vessels that participate in the skate fishery derive most (an average of 96 percent) of their revenues from other fisheries (e.g., groundfish, monkfish). In fishing year 2010, the average total revenue (from all species combined) for the 601 vessels that landed skates was $234,389, of which an average of $17,042 was derived from skates. Therefore alterations to catch limits of other species would be expected to result in greater impacts on total fishing revenues than would alterations in skate catch limits. The proportion of revenue derived from skates may change over time, as skate prices have begun increasing in recent years, and more vessels have been deriving a greater proportion of their income from skates. Dated: February 15, 2012. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. 2. In § 648.322, revise paragraph (b) introductory text, (b)(1) and (c)(4) to read as follows: § 648.322 Skate allocation, possession, and landing provisions. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Jkt 226001 50 CFR Part 660 [Docket No. 120207106–2105–01] RIN 0648–BB85 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2012 Tribal Fishery for Pacific Whiting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS issues this proposed rule for the 2012 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would establish a tribal allocation of 17.5 percent of the U.S. total allowable catch (TAC) for 2012. The regulations proposed by this action would also establish a process for SUMMARY: * * * * (b) Skate wing possession and landing limits. A vessel or operator of a vessel that has been issued a valid Federal skate permit under this part, and fishes under an Atlantic sea scallop, NE multispecies, or monkfish DAS as specified at §§ 648.53, 648.82, and 648.92, respectively, unless otherwise exempted under § 648.80 or paragraph (c) of this section, may fish for, possess, 15:14 Feb 21, 2012 BILLING CODE 3510–22–P National Oceanic and Atmospheric Administration Fisheries, Fishing, Reporting and recordkeeping. For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: VerDate Mar<15>2010 [FR Doc. 2012–4111 Filed 2–21–12; 8:45 am] DEPARTMENT OF COMMERCE List of Subjects in 50 CFR Part 648 * and/or land up to the allowable trip limits specified as follows: (1) Up to 2,200 lb (998 kg) of skate wings (4,994 lb (2,265 kg) whole weight) per trip from May 1 through August 31, and 3,600 lb (1,633 kg) of skate wings (8,172 lb (3,707 kg) whole weight) per trip from September 1 through April 30, except for a vessel fishing on a declared NE multispecies Category B DAS described under § 648.85(b), which is limited to no more than 220 lb (100 kg) of skate wings (500 lb (227 kg) whole weight) per trip (or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27— for example, 100 lb (45.4 kg) of skate wings X 2.27 = 227 lb (103.1 kg) of whole skates). * * * * * (c) * * * (4) The vessel owner or operator possesses or lands no more than 25,000 lb (11,340 kg) of only whole skates less than 23 inches (58.42 cm) total length, and does not possess or land any skate wings or whole skates greater than 23 inches (58.42 cm) total length. * * * * * PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 reapportionment of unused tribal allocation of Pacific whiting to the nontribal fisheries. DATES: Comments on this proposed rule must be received no later than 5 p.m., local time on March 23, 2012. ADDRESSES: You may submit comments, identified by RIN 0648–BB85 by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal, at https:// www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the ‘‘submit a comment’’ icon, then enter (RIN Number) in the keyword search. Locate the document you wish to comment on from the resulting list and click on the ‘‘Submit a Comment’’ icon on the right of that line. • Fax: 206–526–6736, Attn: Kevin C. Duffy. • Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115–0070, Attn: Kevin C. Duffy. Instructions: All comments received are a part of the public record and will generally be posted to https:// www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (if submitting comments via the Federal Rulemaking portal, enter ‘‘N/A’’ in the relevant required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region, NMFS), phone: 206–526–4743, fax: 206– 526–6736 and email: kevin.duffy@noaa.gov. SUPPLEMENTARY INFORMATION: Electronic Access This proposed rule is accessible via the Internet at the Office of the Federal Register’s Web site at https:// www.gpo.gov/fdsys/search/home.action. Background information and documents are available at the Pacific Fishery Management Council’s Web site at https://www.pcouncil.org/. Background The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area E:\FR\FM\22FEP1.SGM 22FEP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that ‘‘the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.’’ These procedures employed by NOAA in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures. The Council’s groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP. Since 1996, NMFS has been allocating a portion of the U.S. TAC (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors. To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation every year since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been made in consideration of their participation in the fishery. In 2008 the Quileute Tribe and Quinault Indian Nation expressed an interest in commencing participation in the whiting fishery. Tribal allocations for 2009–2011 were based on discussions with all three tribes regarding their intent for those fishing years. The table below provides a history of U.S. OYs/ ACLs and the annual tribal allocation in metric tons (mt). Year 2000 2001 2002 2003 2004 .......... .......... .......... .......... .......... VerDate Mar<15>2010 U.S. OY (mt) 232,000 190,400 129,600 148,200 250,000 15:14 Feb 21, 2012 Tribal allocation (mt) 32,500 27,500 22,680 25,000 32,500 Jkt 226001 Year 2005 2006 2007 2008 2009 2010 2011 .......... .......... .......... .......... .......... .......... .......... U.S. OY (mt) 269,069 269,069 242,591 269,545 135,939 193,935 290,903 Tribal allocation (mt) 35,000 32,500 35,000 35,000 50,000 49,939 66,908 Prior to publication of the regulations for the 2011–2012 harvest specification biennial cycle, all three tribes mentioned above indicated their intent to participate at some point during this biennium. The Quinault Nation indicated that they were interested in entering the fishery in 2011, and both the Quileute and Makah Tribes indicated they intended to fish in both 2011 and 2012. Only the Makah tribe participated in the fishery in 2011. Based on exchanges with the tribes during November 2011, and again in January 2012, it appears that only the Makah tribe will participate in the Pacific whiting fishery in 2012. Since 2008, NMFS and the comanagers, including the States of Washington and Oregon, as well as the Treaty tribes, have been involved in a process designed to determine the longterm tribal allocation for Pacific whiting. At the September 2008 Council meeting, NOAA, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NOAA would provide to the tribes and states of Washington and Oregon a summary of the current scientific information regarding whiting, receive comment on the information and possible analyses that might be undertaken, and then prepare analyses of the information to be used by the comanagers (affected tribes, affected states, and NMFS) in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the comanagers on a long-term tribal allocation for incorporation into the Council’s planning process for the 2010 season. An additional purpose was to provide the tribes the time and information to develop an inter-tribal allocation or other necessary management agreement. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers met in 2009 and discussed this preliminary information. In 2010, NMFS finalized the report summarizing scientific information available on the migration and distribution of Pacific whiting on the PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 10467 west coast. In addition, NMFS responded in writing to requests from the tribes for clarifications on the paper and requests for additional information. NMFS also met with each of the tribes in the fall of 2010 to discuss the report and to discuss a process for negotiation of the long-term tribal allocation of Pacific whiting. In 2011, NMFS again met individually with the Makah, Quileute, and Quinault tribes to discuss these matters. Due to the detailed nature of the evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process is continuing and will not be completed prior to the 2012 Pacific whiting fishery; thus the tribal allocation of whiting for 2012 will not reflect a negotiated long-term tribal allocation. Instead, it is an interim allocation not intended to set precedent for future allocations. Tribal Allocation for 2012 It is necessary to propose a range for the tribal allocation, rather than a specific allocation amount, because the specific allocation depends on the amount of the coastwide TAC (United States plus Canada) and corresponding U.S. TAC for 2012 (73.88% of the coastwide TAC). The Joint Management Committee (JMC), which is established pursuant to the _ Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting _ (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2012. In the final Environmental Impact Statement (FEIS) addressing the groundfish fishery for the 2011 and 2012 harvest specifications and management measures, a range of 50 to 150 percent of the 2010 coastwide harvest level was analyzed. The Council adopted a coastwide Overfishing Limit (OFL) of 973,700 mt for 2011 fisheries using the modelaveraged results as recommended by the Council’s Scientific and Statistical Committee (SSC). The Council recommended a coastwide harvest level of 393,751 mt for 2011 fisheries. Consistent with the terms of the Agreement, the U.S. allocation of the coastwide harvest level is 73.88 percent, which equated to 290,903 mt for 2011. In order for the public to have an understanding of the potential tribal whiting allocation in 2012, NMFS is using the range of potential TACs analyzed in the 2011 FEIS to project a range of potential tribal allocations for 2012. Application of this range for 2011 E:\FR\FM\22FEP1.SGM 22FEP1 10468 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS resulted in a potential U.S. TAC of between 96,969 mt and 290,903 mt. As described above, based on exchanges with the tribes during November 2011, and more recently in January, 2012, it appears that only the Makah tribe will participate in the Pacific whiting fishery in 2012, and they have requested 17.5% of the U.S. TAC. Application of this percentage to the range of U.S. TACs results in a tribal allocation of between 16,970 and 50,908 mt for 2012. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that 17.5 percent of the U.S. TAC is within the range of the tribal treaty right to Pacific whiting. As described earlier, NOAA Fisheries proposes this rule as an interim allocation for the 2012 tribal Pacific whiting fishery. As with past allocations, this proposed rule is not intended to establish any precedent for future whiting seasons or for the longterm tribal allocation of whiting. The proposed rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to ‘‘carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.’’ With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their ‘‘usual and accustomed grounds and stations’’ in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 313 (W.D. 1974). Reapportionment of Pacific Whiting NMFS proposes to reinstate its regulatory authority to reapportion whiting from the tribal allocation to the non-tribal fishery when the tribes participating in the fishery will not take the entire tribal allocation during the fishing year. From 1997 through 2010, 50 CFR 660.323(c) provided authority to NMFS to undertake such reapportionment. For 2011, the regulatory provisions regarding reapportionment of tribal whiting allocation to the non-tribal fishery were eliminated when regulations implementing Amendment 21 were adopted in support of the trawl rationalization program. Revisions to the groundfish regulations at § 660.55 defined how ‘‘off the top’’ set-asides for all species, including the tribal allocation of Pacific whiting, would be dealt with. The new provisions did not allow flexibility to return the ‘‘off the VerDate Mar<15>2010 15:14 Feb 21, 2012 Jkt 226001 top’’ set asides, including those for Pacific whiting, to other sectors of the fishery. Following implementation of the catch share program, the Council had additional discussions about reapportionment of the tribal allocation of Pacific whiting. The Council recommended that NMFS reinstate reapportionment provisions in order to promote full utilization of the Pacific whiting resource. NMFS is taking action at this time to reinstate similar reapportionment provisions, recognizing that modifications are needed to fit within the new regulatory structure implemented for the IFQ fishery. By September 15 of the fishing year, the Regional Administrator will consider, based on discussions with tribal representatives, the tribal harvests to date and catch projections for the remainder of the year relative to the tribal allocation as specified at § 660.50 of Pacific whiting. That portion of the tribal allocation the Regional Administrator determines will not be used by the end of the fishing year may be made available for harvest by the other sectors of the trawl fishery, on September 15 or as soon as practicable thereafter. Based on the same factors described above, the Regional Administrator may reapportion whiting again at a later date to ensure full utilization of the resource. Any reapportionment of Pacific whiting from the tribal to the non-tribal sectors will be distributed in a manner consistent with the initial allocation of Pacific whiting among the non-tribal sectors, with 34 percent to the catcher-processor sector, 24 percent to the mothership sector, and 42 percent to the shorebased sector. Current regulations at 50 CFR 660.140(d)(3)(ii)(B)(3) require that all Quota Pounds (QP) or Individual Bycatch Quota (IBQ) pounds from a Quota Share (QS) account must be transferred to one or more vessel accounts by September 1 of each year. This effectively closes QS accounts for the year. If the Regional Administrator makes a decision to reapportion Pacific whiting from the tribal to the non-tribal fishery after September 1 in any year, the following actions will be taken. NMFS will credit QS accounts with additional Pacific whiting quota pounds proportionally, based on the whiting QS percent for a particular QS permit owner and the amount of the sector reapportionment. The QS account transfer function will be reactivated by NMFS for a period of 30 days to allow permit holders to transfer only Pacific whiting QP to vessel accounts. After 30 PO 00000 Frm 00068 Fmt 4702 Sfmt 4702 days, the transfer function in QS accounts will again be deactivated. If an additional reapportionment of Pacific whiting occurs, the same procedures will be followed. Classification NMFS has preliminarily determined that the management measures for the 2012 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making the final determination, will take into account the data, views, and comments received during the comment period. The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES). Under the RFA, the term ‘‘small entities’’ includes small businesses, small organizations, and small governmental jurisdictions. The SBA has established size criteria for all different industry sectors in the US, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts less than $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons at all its affiliated operations worldwide. For marinas and charter/ party boats, a small business is a business with annual receipts less than $7.0 million. For nonprofit organizations, the RFA defines a small organization as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or E:\FR\FM\22FEP1.SGM 22FEP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules special districts with populations of less than 50,000. Over the past five years (2007 to 2011), the total whiting fishery (tribal and non-tribal) has averaged landings of 197,000 mt annually, worth $36 million in terms of ex-vessel revenues. As the U.S. OY/ACL has been highly variable during this time, so have landings. During this period, landings have ranged from 121,000 mt (2009) to 248,000 mt (2008). Landings for 2011 are estimated to be about 197,000 mt. Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $14 million (2009) to $58 million (2008). Ex-vessel revenues in 2011 were about $46 million. As landings have varied, so have prices. These prices are largely determined by the world market for groundfish as most of the whiting harvested is exported. Ex-vessel prices have ranged from $116 per mt (2009) to $236 per mt (2008). Average ex-vessel price for whiting in 2011 was $232 per mt. Note that the use of ex-vessel values does not take into account the wholesale or export value of the fishery or the costs of harvesting and processing whiting into a finished product. NMFS does not have sufficient information to make a complete assessment of these values. The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low exvessel prices per pound. This fishery has seasonal aspects based on the distribution of whiting off the west coast. The whiting fishery has four components. The shorebased fishery delivers their catch to processing facilities on land. Most of these vessels also deliver other groundfish species to shorebased plants. This fishery is managed under an individual fishing quota system. In the mothership sector, catcher vessels deliver to floating processors called motherships. This fishery is managed under a single mothership co-op—the Whiting Mothership Cooperative. The catcherprocessor fleet consists of vessels that both catch the fish and process it aboard. This fishery is also managed under a co-op—the Pacific Whiting Conservation Cooperative. The fourth component of the fishery is the tribal fishery. Since 1996, there has been a tribal allocation of the U.S. whiting TAC. There are three tribes associated with the whiting fishery: Makah, Quileute, and Quinault. There are two key features of this rule making: establishing the 2012 interim tribal allocation and reinstatement of VerDate Mar<15>2010 15:14 Feb 21, 2012 Jkt 226001 regulatory authority to reapportion whiting from the tribal to the non-tribal fishery. The alternatives are ‘‘NoAction’’ vs. the ‘‘Proposed Action’’. The proposed allocation, based on discussions with the tribes is for NMFS to allocate 17.5 percent of the U.S. total allowable catch for 2012. NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights, and the participating tribe has historically shown an ability to harvest the amount of whiting requested. A higher allocation would be, arguably, within the scope of the treaty right. However, a higher allocation would unnecessarily limit the non-tribal fishery. A no action alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2012, which would be inconsistent with NMFS’ responsibility to manage the fishery consistent with the tribes’ treaty rights. Given that there is a tribal request for allocation in 2012, this alternative received no further consideration. There are two alternatives associated with reinstating the authority to reapportion unused Pacific whiting from the tribal fishery to the non-tribal fishery. The ‘‘No-Action’’ alternative is the authority not reinstated. The ‘‘Proposed’’ Alternative would be to reinstate the authority. NMFS has reviewed analyses of fish ticket data and limited entry permit data, available employment data provided by processors, information on Tribal fleets, and industry responses to a 2010 survey on ownership and has developed the following estimates for the whiting fishery. There are four affected components of this fisheryShorebased whiting, mothership whiting, catcher-processor, and tribal. In the shorebased whiting fishery, quota shares of whiting were allocated to 138 entities including ten shoreside processing companies. These entities can fish the quota pounds associated with their quota shares, transfer their quota pounds to other to fish, or choose not to fish their quota pounds. Whiting PO 00000 Frm 00069 Fmt 4702 Sfmt 4702 10469 is landed as bycatch in other fisheries or as a target catch in the whiting fishery. To analyze the number of participants primarily affected by this rule making, targeted whiting trips are defined as landings that contained 5,000 pounds or more of whiting. During 2011, 62 vessels landed a total of about 200 million pounds of whiting. Of these vessels, only 26 vessels had landings greater than 5,000 pounds. Thirteen of these 26 vessels are ‘‘small’’ entities. These 26 vessels delivered their catch to 10 processing companies. These 10 processing companies, either through ownership or affiliation, can be organized into to 6 entities. Four of these 6 entities are ‘‘small’’ entities. There are 37 limited entry permits that have mothership whiting catch history assignments. During 2011, these 37 permits pooled their whiting catch history assignments into a single mothership fishery co-op. Approximately half of these vessels are ‘‘small’’ entities. Vessels in the mothership co-op deliver their catch to mothership processors. There are 6 mothership processing companies; three or which are ‘‘small’’ entities. The catcher-processor fleet has ten limited entry permits and 10 vessels, owned by three companies. These three companies are considered ‘‘large’’ companies mainly because of their operations off Alaska. The tribal fleet is comprised of 5 vessels considered to be ‘‘small’’ entities, while the 3 tribal governments, based on population sizes, are considered ‘‘small’’ entities. The expected effect of the ‘‘Proposed’’ alternative relative to the ‘‘No Action’’ alternative is to allow unharvested tribal allocations of whiting to be fished by the non-tribal fleets, benefitting both large and small entities. With the implementation of Amendments 20 and 21, the ability to reapportion whiting from tribal to the non-tribal fishery was eliminated for 2011. Pending markets, available bycatch, and the ability of tribal fleets to develop the capacity to harvest the tribal allocation there may be uncaught whiting in the tribal fishery because there is no regulatory mechanism to transfer uncaught whiting to the non-tribal fishery. For 2010, the tribes were initially allocated 49,939 mt. As tribal harvests were projected to be about 16,000 mt, in September 2010 and October 2010, NMFS reapportioned a total of 16,000 mt of whiting from the tribal allocation to the non-tribal shorebased, mothership, and catcher processor sectors. Unlike 2010, for 2011, NMFS was not authorized to reapportion unharvested tribal whiting to the non-tribal sectors. Tribal harvests E:\FR\FM\22FEP1.SGM 22FEP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS 10470 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules as of October 7, 2011 were about 19 percent of the 66,908 mt allocation indicating that about 54,000 tons of the tribal allocation would go unfished. This rulemaking would reinstate the regulatory authority to reapportion whiting from the tribal to the non-tribal fishery. If NMFS was authorized in 2011 to reapportion half or more of the 54,000 mt unfished tribal allocation, the exvessel revenues could have increased by as much as $6.0 million. This proposed rule would directly regulate which entities can harvest whiting. This rule would allocate fish between tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) to non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries are a mixture of activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. NMFS believes this proposed rule would not adversely affect small entities and is likely to be beneficial to both small and large entities as it allows unharvested tribal fish to be harvested by non-tribal harvesters. Nonetheless, NMFS has prepared this IRFA and is requesting comments on this conclusion. There are no reporting, recordkeeping or other compliance requirements in the proposed rule. No Federal rules have been identified that duplicate, overlap, or conflict with this action. NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/ summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/ central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not VerDate Mar<15>2010 15:14 Feb 21, 2012 Jkt 226001 expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat. NMFS issued a Supplemental Biological Opinion on March 11, 2006 concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior ‘‘no jeopardy’’ conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead. NMFS has reinitiated consultation on the fishery to address newly listed species including Pacific eulachon and green sturgeon, and other non-salmonid listed species (marine mammals, sea birds, and turtles). NMFS will be completing a consultation on listed marine species for the 2012 groundfish fishery by the end of January 2012, and expects that consultation on seabirds will be completed prior to late summer of 2012. Further, NMFS has concluded that take of any marine species that will be covered by the opinion to be issued in early 2012 is very unlikely to occur prior to completion of that opinion, and that take of listed seabirds is unlikely to occur in 2012. Marine Mammal Protection Act (MMPA) Impacts resulting from fishing activities proposed in this rule are discussed in the FEIS for the 2011–12 groundfish fishery specifications and management measures. As discussed above, NMFS does not anticipate incidental take of ESA-listed marine mammals prior to the completion of the 2012 ESA consultation covering these species. NMFS expects to complete the process leading to any necessary authorization of incidental taking under MMPA section 101(a)(5)(E) concurrent with the 2012 biological opinion. Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 PO 00000 Frm 00070 Fmt 4702 Sfmt 4702 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council’s jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule. List of Subjects in 50 CFR Part 660 Fisheries, Fishing, Indian fisheries. Dated: February 16, 2012. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows: PART 660—FISHERIES OFF WEST COAST STATES 1. The authority citation for part 660 is amended to read as follows: Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq. 2. In § 660.50, paragraph (f)(4) is revised to read as follows: § 660.50 Pacific Coast treaty Indian fisheries. * * * * * (f) * * * (4) Pacific whiting. The tribal allocation for 2012 will be 17.5 percent of the U.S. TAC. * * * * * 3. In § 660.60 paragraphs (d)(1)(iv),and (v) are revised and paragraphs(d)(1)(vi) and(d)(2) are added to read as follows: § 660.60 Specifications and management measures. * * * * * (d) * * * (1) * * * (iv) Reapportionment of the unused portion of the tribal allocation of Pacific whiting to the IFQ, mothership and catcher processor Pacific whiting fisheries. (v) Implement the Ocean Salmon Conservation Zone, described at § 660.131(c)(3), when NMFS projects the Pacific whiting fishery may take in excess of 11,000 Chinook within a calendar year. (vi) Implement Pacific Whiting Bycatch Reduction Areas, described at § 660.131(c)(4) Subpart D, when NMFS projects a sector-specific bycatch limit will be reached before the sector’s whiting allocation. (2) Automatic actions are effective when actual notice is sent by NMFS. Actual notice to fishers and processors E:\FR\FM\22FEP1.SGM 22FEP1 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules will be by email, Internet (www.nwr.noaa.gov/GroundfishHalibut/Groundfish-FisheryManagement/Whiting-Management/ index.cfm), phone, fax, letter, or press release. Allocation reapportionments will be followed by publication in the Federal Register, in which public comment will be sought for a reasonable period of time thereafter. 4. In § 660.131 a new paragraph (h) is added to read as follows: § 660.131 Pacific whiting fishery management measures. * * * * (h) Reapportionment of Pacific Whiting.(1) By September 15 of the fishing year, the Regional Administrator will, based on discussions with representatives of the tribes participating in the Pacific whiting fishery for that fishing year, consider the tribal harvests to date and catch projections for the remainder of the year relative to the tribal allocation as specified at § 660.50 of Pacific whiting. That portion of the tribal allocation that the Regional Administrator determines will not be used by the end of the fishing year may be reapportioned to the other sectors of the trawl fishery in proportion to their initial allocations, on September 15 or as soon as practicable thereafter. Subsequent reapportionments may be made based on subsequent determinations by the Regional Administrator based on the factors described above in order to ensure full utilization of the resource. (2) The reapportionment of surplus whiting will be made effective immediately by actual notice under the automatic action authority provided at 660.60 (d)(1). (3) Estimates of the portion of the tribal allocation that will not be used by the end of the fishing year will be based wreier-aviles on DSK5TPTVN1PROD with PROPOSALS * VerDate Mar<15>2010 15:14 Feb 21, 2012 Jkt 226001 on the best information available to the Regional Administrator. 5. In § 660.140 paragraph (d)(1)(ii) and (d)(3)(ii)(B)(3) are revised to read as follows: § 660.140 Shorebased IFQ program. * * * * * (d) * * * (1) * * * (ii) Annual QP and IBQ pound allocations. QP and IBQ pounds will be deposited into QS accounts annually. QS permit owners will be notified of QP deposits via the IFQ Web site and their QS account. QP and IBQ pounds will be issued to the nearest whole pound using standard rounding rules (i.e. , decimal amounts less than 0.5 round down and 0.5 and greater round up), except that in the first year of the Shorebased IFQ Program, issuance of QP for overfished species greater than zero but less than one pound will be rounded up to one pound. Rounding rules may affect distribution of the entire shorebased trawl allocation. NMFS will distribute such allocations to the maximum extent practicable, not to exceed the total allocation. QS permit owners must transfer their QP and IBQ pounds from their QS account to a vessel account in order for those QP and IBQ pounds to be fished. QP and IBQ pounds must be transferred in whole pounds (i.e. , no fraction of a QP or IBQ pound can be transferred). All QP and IBQ pounds in a QS account must be transferred to a vessel account by September 1 of each year in order to be fished, unless there is a reapportionment of Pacific whiting consistent with §§ 660.131(h) and 660.140(d)(3). * * * * * (3) * * * (ii) * * * (B) * * * PO 00000 Frm 00071 Fmt 4702 Sfmt 9990 10471 (3) Transfer of QP or IBQ pounds from a QS account to a vessel account. QP or IBQ pounds must be transferred in whole pounds (i.e. no fraction of a QP can be transferred). QP or IBQ pounds must be transferred to a vessel account in order to be used. Transfers of QP or IBQ pounds from a QS account to a vessel account are subject to vessel accumulation limits and NMFS’ approval. Once QP or IBQ pounds are transferred from a QS account to a vessel account (accepted by the transferee/vessel owner), they cannot be transferred back to a QS account and may only be transferred to another vessel account. QP or IBQ pounds may not be transferred from one QS account to another QS account. All QP or IBQ pounds from a QS account must be transferred to one or more vessel accounts by September 1 each year. If the Regional Administrator makes a decision to reapportion Pacific whiting from the tribal to the non-tribal fishery after September 1 in any year, the following actions will be taken. (i) NMFS will credit QS accounts with additional Pacific whiting QP proportionally, based on the whiting QS percent for a particular QS permit owner and the amount of the sector reapportionment of whiting. (ii) The QS account transfer function will be reactivated by NMFS for a period of 30 days from the date that QS accounts are credited with additional Pacific whiting QP to allow permit holders to transfer only Pacific whiting QP to vessel accounts. (iii) After 30 days, the transfer function in QS accounts will again be inactivated. * * * * * [FR Doc. 2012–4113 Filed 2–21–12; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\22FEP1.SGM 22FEP1

Agencies

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

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

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

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: You may submit comments, identified by RIN 0648-BB85 by any
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal, at https://www.regulations.gov. To submit comments via the e-Rulemaking Portal,
first click the ``submit a comment'' icon, then enter (RIN Number) in
the keyword search. Locate the document you wish to comment on from the
resulting list and click on the ``Submit a Comment'' icon on the right
of that line.
Fax: 206-526-6736, Attn: Kevin C. Duffy.
Mail: William W. Stelle, Jr., Regional Administrator,
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070, Attn: Kevin C. Duffy.
Instructions: All comments received are a part of the public record
and will generally be posted to https://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (if submitting comments via the
Federal Rulemaking portal, enter ``N/A'' in the relevant required
fields if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Kevin C. Duffy (Northwest Region,
NMFS), phone: 206-526-4743, fax: 206-526-6736 and email:
kevin.duffy@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

This proposed rule is accessible via the Internet at the Office of
the Federal Register's Web site at https://www.gpo.gov/fdsys/search/home.action. Background information and documents are available at the
Pacific Fishery Management Council's Web site at https://www.pcouncil.org/.

Background

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

[[Page 10467]]

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

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

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

Tribal Allocation for 2012

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

[[Page 10468]]

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

Reapportionment of Pacific Whiting

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

Classification

NMFS has preliminarily determined that the management measures for
the 2012 Pacific whiting tribal fishery are consistent with the
national standards of the Magnuson-Stevens Act and other applicable
laws. NMFS, in making the final determination, will take into account
the data, views, and comments received during the comment period.
The Office of Management and Budget has determined that this
proposed rule is not significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). The IRFA describes the economic impact this
proposed rule, if adopted, would have on small entities. A summary of
the analysis follows. A copy of this analysis is available from NMFS
(see ADDRESSES).
Under the RFA, the term ``small entities'' includes small
businesses, small organizations, and small governmental jurisdictions.
The SBA has established size criteria for all different industry
sectors in the US, including fish harvesting and fish processing
businesses. A business involved in fish harvesting is a small business
if it is independently owned and operated and not dominant in its field
of operation (including its affiliates) and if it has combined annual
receipts less than $4.0 million for all its affiliated operations
worldwide. A seafood processor is a small business if it is
independently owned and operated, not dominant in its field of
operation, and employs 500 or fewer persons at all its affiliated
operations worldwide. A business involved in both the harvesting and
processing of seafood products is a small business if it meets the $4.0
million criterion for fish harvesting operations. A wholesale business
servicing the fishing industry is a small business if it employs 100 or
fewer persons at all its affiliated operations worldwide. For marinas
and charter/party boats, a small business is a business with annual
receipts less than $7.0 million. For nonprofit organizations, the RFA
defines a small organization as any nonprofit enterprise that is
independently owned and operated and is not dominant in its field. The
RFA defines small governmental jurisdictions as governments of cities,
counties, towns, townships, villages, school districts, or

[[Page 10469]]

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

[[Page 10470]]

as of October 7, 2011 were about 19 percent of the 66,908 mt allocation
indicating that about 54,000 tons of the tribal allocation would go
unfished. This rulemaking would reinstate the regulatory authority to
reapportion whiting from the tribal to the non-tribal fishery. If NMFS
was authorized in 2011 to reapportion half or more of the 54,000 mt
unfished tribal allocation, the ex-vessel revenues could have increased
by as much as $6.0 million.
This proposed rule would directly regulate which entities can
harvest whiting. This rule would allocate fish between tribal
harvesters (harvest vessels are small entities, tribes are small
jurisdictions) to non-tribal harvesters (a mixture of small and large
businesses). Tribal fisheries are a mixture of activities that are
similar to the activities that non-tribal fisheries undertake. Tribal
harvests are delivered to both shoreside plants and motherships for
processing. These processing facilities also process fish harvested by
non-tribal fisheries.
NMFS believes this proposed rule would not adversely affect small
entities and is likely to be beneficial to both small and large
entities as it allows unharvested tribal fish to be harvested by non-
tribal harvesters. Nonetheless, NMFS has prepared this IRFA and is
requesting comments on this conclusion.
There are no reporting, recordkeeping or other compliance
requirements in the proposed rule.
No Federal rules have been identified that duplicate, overlap, or
conflict with this action.
NMFS issued Biological Opinions under the ESA on August 10, 1990,
November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996,
and December 15, 1999 pertaining to the effects of the Pacific Coast
groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River
spring/summer, Snake River fall, upper Columbia River spring, lower
Columbia River, upper Willamette River, Sacramento River winter,
Central Valley spring, California coastal), coho salmon (Central
California coastal, southern Oregon/northern California coastal), chum
salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake
River, Ozette Lake), and steelhead (upper, middle and lower Columbia
River, Snake River Basin, upper Willamette River, central California
coast, California Central Valley, south/central California, northern
California, southern California). These biological opinions have
concluded that implementation of the FMP for the Pacific Coast
groundfish fishery was not expected to jeopardize the continued
existence of any endangered or threatened species under the
jurisdiction of NMFS, or result in the destruction or adverse
modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006
concluding that neither the higher observed bycatch of Chinook in the
2005 whiting fishery nor new data regarding salmon bycatch in the
groundfish bottom trawl fishery required a reconsideration of its prior
``no jeopardy'' conclusion. NMFS also reaffirmed its prior
determination that implementation of the Groundfish PCGFMP is not
likely to jeopardize the continued existence of any of the affected
ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as
threatened under the ESA. The 1999 biological opinion concluded that
the bycatch of salmonids in the Pacific whiting fishery were almost
entirely Chinook salmon, with little or no bycatch of coho, chum,
sockeye, and steelhead.
NMFS has reinitiated consultation on the fishery to address newly
listed species including Pacific eulachon and green sturgeon, and other
non-salmonid listed species (marine mammals, sea birds, and turtles).
NMFS will be completing a consultation on listed marine species for the
2012 groundfish fishery by the end of January 2012, and expects that
consultation on seabirds will be completed prior to late summer of
2012. Further, NMFS has concluded that take of any marine species that
will be covered by the opinion to be issued in early 2012 is very
unlikely to occur prior to completion of that opinion, and that take of
listed seabirds is unlikely to occur in 2012. Marine Mammal Protection
Act (MMPA)
Impacts resulting from fishing activities proposed in this rule are
discussed in the FEIS for the 2011-12 groundfish fishery specifications
and management measures. As discussed above, NMFS does not anticipate
incidental take of ESA-listed marine mammals prior to the completion of
the 2012 ESA consultation covering these species. NMFS expects to
complete the process leading to any necessary authorization of
incidental taking under MMPA section 101(a)(5)(E) concurrent with the
2012 biological opinion.
Pursuant to Executive Order 13175, this proposed rule was developed
after meaningful consultation and collaboration with tribal officials
from the area covered by the FMP. Consistent with the Magnuson-Stevens
Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific
Council is a representative of an Indian tribe with federally
recognized fishing rights from the area of the Council's jurisdiction.
In addition, NMFS has coordinated specifically with the tribes
interested in the whiting fishery regarding the issues addressed by
this rule.

List of Subjects in 50 CFR Part 660

Fisheries, Fishing, Indian fisheries.

Dated: February 16, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.

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

PART 660--FISHERIES OFF WEST COAST STATES

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

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

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

Sec. 660.50 Pacific Coast treaty Indian fisheries.

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

Sec. 660.60 Specifications and management measures.

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

[[Page 10471]]

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

Sec. 660.131 Pacific whiting fishery management measures.

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

Sec. 660.140 Shorebased IFQ program.

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

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