Fisheries off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program, 45508-45512 [2012-18780]

Download as PDF 45508 Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Rules and Regulations Center frequency (MHz) 4955 4960 4965 4970 4975 4980 Lower frequency (MHz) Channel Nos. employed .............................................................................. .............................................................................. .............................................................................. .............................................................................. .............................................................................. .............................................................................. 6 to 9 ............................................................................ 7 to 10 .......................................................................... 8 to 11 .......................................................................... 9 to 12 .......................................................................... 10 to 13 ........................................................................ 11 to 18 * ...................................................................... Upper frequency (MHz) 4945 4950 4955 4960 4965 4970 4965 4970 4975 4980 4985 4990 * Licensees should avoid using these channels in aggregations unless all other channels are blocked. [FR Doc. 2012–18575 Filed 7–31–12; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 120312181–2279–01] RIN 0648–BC00 Fisheries off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; emergency action. AGENCY: This action delays some and revises other 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 rule affects 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 will be delayed until NMFS can implement any necessary new allocation regulations required by the court’s order. DATES: This rule is effective September 1, 2012 through January 28, 2013. FOR FURTHER INFORMATION CONTACT: Ariel Jacobs, 206–526–4491; (fax) 206– 526–6736; Ariel.Jacobs@noaa.gov. SUPPLEMENTARY INFORMATION: sroberts on DSK5SPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 15:45 Jul 31, 2012 Jkt 226001 Background This final rule delays or revises several provisions of the Pacific coast trawl rationalization program, based on decisions issued by the U.S. District Court for the Northern District of California in the case Pacific Dawn v. Bryson, No. C10–4829 TEH (2012), requiring NMFS and the Council to reconsider the initial allocation of Pacific whiting. Background on this rule was provided in the proposed rule, published on May 21, 2012 (77 FR 29955), and is not repeated here. This action: (1) Delays the ability to transfer QS and IBQ between QS accounts in the shorebased IFQ fishery in order to avoid complications that would occur if QS permit owners in the shorebased IFQ fishery were allowed to transfer QS percentages prior to completion of the whiting allocation reconsideration; (2) Delays the requirement to divest excess quota share amounts for the shorebased IFQ fishery and the at-sea mothership fishery so that QS permit owners will have sufficient time to plan and arrange sales of excess QS, as originally recommended by the Council for this provision of the trawl rationalization program; (3) Delays the ability to change MS/ CV endorsement and catch history assignments from one limited entry trawl permit to another in order to avoid complications if permit owners are allowed to transfer ownership of catch history assignments before completion of the reconsideration takes place; and (4) Modifies 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 will 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. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 of 36°N lat., yellowtail N. of 40°10′ N. lat., shortspine N. of 34°27′ N. lat., minor slope rockfish N. of 40°10′ N. lat., minor slope rockfish S. of 40°10′ N. lat., minor shelf rockfish N. of 40°10′ N. lat., minor shelf rockfish S. of 40°10′ N. lat., and other flatfish). The remainder of the interim QP will be deposited in accounts at the start of the whiting primary season. NMFS is also advising 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. Potential Impact on Processor Obligations and Coop Formation NMFS will 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/CVendorsed permit owners must obligate their associated catch history assignment to an MS permit by September 1 of the prior year. Because both of these requirements may happen before NMFS makes 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 E:\FR\FM\01AUR1.SGM 01AUR1 Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Rules and Regulations application. For example, in the initial administrative determination for any 2013 MS coop permit application, NMFS will notify the coop manager of any changes in catch history assignments for MS/CV-endorsed permits associated with that coop. sroberts on DSK5SPTVN1PROD with RULES Process To Review, and If Necessary, Correct Data In the proposed rule, NMFS laid out a detailed process for reviewing and correcting landings data. Since publishing the proposed rule, several confidentiality issues have arisen with regard to state landings data. When NMFS resolves these issues, we will notify the public of the process for reviewing and correcting all landings data. 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 of 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 the reallocation rule likely will have 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 any revised reallocation, NMFS likely will issue an initial administrative determination (IAD), but not an application; these details will be developed as part of the reallocation rulemaking. Accordingly, there is no need to freeze LEP transfers. If NMFS reissues QS permits and/or catch history assignments on MS/CVendorsed limited entry trawl permits, NMFS likely will issue those permits or catch history assignments to the QS account owner of record with NMFS at the time of reissuance. However, these details will be developed as part of the reallocation rulemaking. Comments and Responses NMFS solicited public comment on the proposed rule (77 FR 29955, May 21, 2012). The comment period for these notices ended June 29, 2012. NMFS received two letters of comments on the proposed rule, only one of which was substantive. The comment period was open during the June 2012 Council meeting. Comments presented to the Council are part of the record and were considered by the Council during its VerDate Mar<15>2010 15:45 Jul 31, 2012 Jkt 226001 deliberation. In reviewing the proposed rule, NMFS considered the record as a whole. Comment 1. NMFS received one comment from the Pacific Fishery Management Council concurring with the primary issues covered in the proposed rule. They also requested that the moratorium on the transfer of widow rockfish QS be extended to December 31, 2014, or the date when the Council completes its consideration (including resolution of appeals) and NMFS implements changes to the widow rockfish QS allocations. Response: NMFS acknowledges this comment; however, NMFS cannot extend the moratorium on the transfer of widow rockfish QS beyond the 365 days allowed by the statute for this emergency action. Extending that moratorium needs to be done in a separate rulemaking. Classification Pursuant to section 305(c)(1) of the MSA, the NMFS Assistant Administrator has determined that this final 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. As stated in the proposed rule, NMFS is using its emergency action authority under MSA 305(c)(1) for this rule. 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. However, there is insufficient time to go through the standard FMP Council process prior to the required effective date of this rule. If NMFS does not take this action, then NMFS will 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 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-FisheryManagement/Trawl-Program/index.cfm. The regulatory changes in this final rule PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 45509 were categorically excluded from the requirement to prepare a NEPA analysis. This final rule has been determined to be not significant for purposes of Executive Order 12866. When an agency proposes regulations, the Regulatory Flexibility Act (RFA) requires the agency to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (IRFA) that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. After the public comment period, the agency prepares a Final Regulatory Flexibility Analysis (FRFA) that takes into consideration any new information and public comments. This FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments, NMFS’ responses to those comments, and a summary of the analyses completed to support the action. NMFS published the proposed rule on May, 21, 2012 (78 FR 2995), with a comment period through June 29, 2012. An IRFA was prepared and summarized in the ‘‘Classification’’ section of the preamble to the proposed rule. Analytical requirements for the FRFA are described in Regulatory Flexibility Act, section 304(a)(1) through (5), and summarized below. The FRFA must contain: (1) A succinct statement of the need for, and objectives of, the rule; (2) a summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) a description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available; (4) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (5) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency E:\FR\FM\01AUR1.SGM 01AUR1 sroberts on DSK5SPTVN1PROD with RULES 45510 Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Rules and Regulations which affect the impact on small entities was rejected. 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. This postponement of QS trading is necessary because for many affected parties, their QS allocations (especially for bycatch species) are composed of whiting-trip calculations and nonwhiting trip calculations, which NMFS and the Council are currently reconsidering. 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, RAW 2 will implement any revised allocations of QS and MS/CV history assignments. RAW 2 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 is also delaying MS/ CV’s ability to transfer endorsement and associated catch history assignments from one limited entry trawl permit to another. However, the MS/CVs 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 process of ‘‘holding’’ back sufficient QP is similar to the current process of starting the year with VerDate Mar<15>2010 15:45 Jul 31, 2012 Jkt 226001 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 Council recommendations. In 2012, this process was modified to include the processes of the U.S-Canada Pacific Whiting Treaty. 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 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 nonprofit organization who considers itself a ’’large’’ organization. Nine other PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 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 does not expect this rule to have any significant impacts on large or small entities. There were no significant issues raised by the public comments in response to the IRFA. There are no reporting or recordkeeping requirements with this final rule, but as described above, there is a process for fishermen and processors to review, and if necessary, correct the data that is used for future allocations of Pacific whiting. There are no significant alternatives to this final rule that accomplish the stated objectives of applicable statutes and that minimize any of the significant economic impact of the proposed rule on small entities. These delays will be temporary in nature and will benefit both small and large entities. These delays will 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 E:\FR\FM\01AUR1.SGM 01AUR1 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Rules and Regulations 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 Pacific Coast Groundfish Fishery Management Plan (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 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 VerDate Mar<15>2010 15:45 Jul 31, 2012 Jkt 226001 Resident killer whales; and critical habitat of Steller sea lions. This 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) on the effects of the groundfish fishery on endangered species was revised and resubmitted 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 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 BO 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: July 27, 2012. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 660 is 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. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 45511 2. In § 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: ■ § 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. E:\FR\FM\01AUR1.SGM 01AUR1 45512 Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Rules and Regulations sroberts on DSK5SPTVN1PROD with RULES (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 VerDate Mar<15>2010 15:45 Jul 31, 2012 Jkt 226001 the aggregate non-whiting QS limit and then the individual species QS or IBQ control limits. For QS permit owners (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 PO 00000 Frm 00034 Fmt 4700 Sfmt 9990 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 § 660.150, a. Revise paragraph (g)(2)(iv)(B); and ■ b. Remove and reserve paragraph (g)(2)(iv)(C) to read as follows: ■ ■ § 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. 2012–18780 Filed 7–31–12; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\01AUR1.SGM 01AUR1

Agencies

[Federal Register Volume 77, Number 148 (Wednesday, August 1, 2012)]
[Rules and Regulations]
[Pages 45508-45512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18780]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 120312181-2279-01]
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: Temporary rule; emergency action.

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SUMMARY: This action delays some and revises other 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 rule affects 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 will be delayed until NMFS can implement any 
necessary new allocation regulations required by the court's order.

DATES: This rule is effective September 1, 2012 through January 28, 
2013.

FOR FURTHER INFORMATION CONTACT: Ariel Jacobs, 206-526-4491; (fax) 206-
526-6736; Ariel.Jacobs@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    This final rule delays or revises several provisions of the Pacific 
coast trawl rationalization program, based on decisions issued by the 
U.S. District Court for the Northern District of California in the case 
Pacific Dawn v. Bryson, No. C10-4829 TEH (2012), requiring NMFS and the 
Council to reconsider the initial allocation of Pacific whiting. 
Background on this rule was provided in the proposed rule, published on 
May 21, 2012 (77 FR 29955), and is not repeated here. This action:
    (1) Delays the ability to transfer QS and IBQ between QS accounts 
in the shorebased IFQ fishery in order to avoid complications that 
would occur if QS permit owners in the shorebased IFQ fishery were 
allowed to transfer QS percentages prior to completion of the whiting 
allocation reconsideration;
    (2) Delays the requirement to divest excess quota share amounts for 
the shorebased IFQ fishery and the at-sea mothership fishery so that QS 
permit owners will have sufficient time to plan and arrange sales of 
excess QS, as originally recommended by the Council for this provision 
of the trawl rationalization program;
    (3) Delays the ability to change MS/CV endorsement and catch 
history assignments from one limited entry trawl permit to another in 
order to avoid complications if permit owners are allowed to transfer 
ownership of catch history assignments before completion of the 
reconsideration takes place; and
    (4) Modifies 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 will 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 will be deposited in 
accounts at the start of the whiting primary season.
    NMFS is also advising 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.

Potential Impact on Processor Obligations and Coop Formation

    NMFS will 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 September 1 of the prior year. Because 
both of these requirements may happen before NMFS makes 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

[[Page 45509]]

application. For example, in the initial administrative determination 
for any 2013 MS coop permit application, NMFS will notify the coop 
manager of any changes in catch history assignments for MS/CV-endorsed 
permits associated with that coop.

Process To Review, and If Necessary, Correct Data

    In the proposed rule, NMFS laid out a detailed process for 
reviewing and correcting landings data. Since publishing the proposed 
rule, several confidentiality issues have arisen with regard to state 
landings data. When NMFS resolves these issues, we will notify the 
public of the process for reviewing and correcting all landings data.
    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 of 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 the 
reallocation rule likely will have 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 any revised reallocation, NMFS likely will issue an 
initial administrative determination (IAD), but not an application; 
these details will be developed as part of the reallocation rulemaking. 
Accordingly, there is no need to freeze LEP transfers. If NMFS reissues 
QS permits and/or catch history assignments on MS/CV-endorsed limited 
entry trawl permits, NMFS likely will issue those permits or catch 
history assignments to the QS account owner of record with NMFS at the 
time of reissuance. However, these details will be developed as part of 
the reallocation rulemaking.

Comments and Responses

    NMFS solicited public comment on the proposed rule (77 FR 29955, 
May 21, 2012). The comment period for these notices ended June 29, 
2012. NMFS received two letters of comments on the proposed rule, only 
one of which was substantive. The comment period was open during the 
June 2012 Council meeting. Comments presented to the Council are part 
of the record and were considered by the Council during its 
deliberation. In reviewing the proposed rule, NMFS considered the 
record as a whole.
    Comment 1. NMFS received one comment from the Pacific Fishery 
Management Council concurring with the primary issues covered in the 
proposed rule. They also requested that the moratorium on the transfer 
of widow rockfish QS be extended to December 31, 2014, or the date when 
the Council completes its consideration (including resolution of 
appeals) and NMFS implements changes to the widow rockfish QS 
allocations.
    Response: NMFS acknowledges this comment; however, NMFS cannot 
extend the moratorium on the transfer of widow rockfish QS beyond the 
365 days allowed by the statute for this emergency action. Extending 
that moratorium needs to be done in a separate rulemaking.

Classification

    Pursuant to section 305(c)(1) of the MSA, the NMFS Assistant 
Administrator has determined that this final 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. As stated in the proposed rule, NMFS is using its emergency 
action authority under MSA 305(c)(1) for this rule. 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. However, 
there is insufficient time to go through the standard FMP Council 
process prior to the required effective date of this rule. If NMFS does 
not take this action, then NMFS will 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 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 final rule were categorically excluded from the 
requirement to prepare a NEPA analysis.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    When an agency proposes regulations, the Regulatory Flexibility Act 
(RFA) requires the agency to prepare and make available for public 
comment an Initial Regulatory Flexibility Analysis (IRFA) that 
describes the impact on small businesses, non-profit enterprises, local 
governments, and other small entities. The IRFA is to aid the agency in 
considering all reasonable regulatory alternatives that would minimize 
the economic impact on affected small entities. After the public 
comment period, the agency prepares a Final Regulatory Flexibility 
Analysis (FRFA) that takes into consideration any new information and 
public comments. This FRFA incorporates the IRFA, a summary of the 
significant issues raised by the public comments, NMFS' responses to 
those comments, and a summary of the analyses completed to support the 
action.
    NMFS published the proposed rule on May, 21, 2012 (78 FR 2995), 
with a comment period through June 29, 2012. An IRFA was prepared and 
summarized in the ``Classification'' section of the preamble to the 
proposed rule. Analytical requirements for the FRFA are described in 
Regulatory Flexibility Act, section 304(a)(1) through (5), and 
summarized below. The FRFA must contain: (1) A succinct statement of 
the need for, and objectives of, the rule; (2) a summary of the 
significant issues raised by the public comments in response to the 
initial regulatory flexibility analysis, a summary of the assessment of 
the agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments; (3) a description and an 
estimate of the number of small entities to which the rule will apply, 
or an explanation of why no such estimate is available; (4) a 
description of the projected reporting, recordkeeping and other 
compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record; and (5) a description of the steps the agency has taken to 
minimize the significant economic impact on small entities consistent 
with the stated objectives of applicable statutes, including a 
statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency

[[Page 45510]]

which affect the impact on small entities was rejected.
    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. This 
postponement of QS trading is necessary because for many affected 
parties, their QS allocations (especially for bycatch species) are 
composed of whiting-trip calculations and non-whiting trip 
calculations, which NMFS and the Council are currently reconsidering. 
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, RAW 
2 will implement any revised allocations of QS and MS/CV history 
assignments. RAW 2 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 is also delaying 
MS/CV's ability to transfer endorsement and associated catch history 
assignments from one limited entry trawl permit to another. However, 
the MS/CVs 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 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 Council recommendations. In 2012, this 
process was modified to include the processes of the U.S-Canada Pacific 
Whiting Treaty.
    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 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 does not expect this 
rule to have any significant impacts on large or small entities.
    There were no significant issues raised by the public comments in 
response to the IRFA.
    There are no reporting or recordkeeping requirements with this 
final rule, but as described above, there is a process for fishermen 
and processors to review, and if necessary, correct the data that is 
used for future allocations of Pacific whiting.
    There are no significant alternatives to this final rule that 
accomplish the stated objectives of applicable statutes and that 
minimize any of the significant economic impact of the proposed rule on 
small entities. These delays will be temporary in nature and will 
benefit both small and large entities. These delays will 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

[[Page 45511]]

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 Pacific Coast Groundfish 
Fishery Management Plan (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 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 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) on the effects of the groundfish fishery on endangered 
species 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 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 BO 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: July 27, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

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

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 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.


0
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.

[[Page 45512]]

    (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 (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.
* * * * *

0
3. In Sec.  660.150,
0
a. Revise paragraph (g)(2)(iv)(B); and
0
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. 2012-18780 Filed 7-31-12; 8:45 am]
BILLING CODE 3510-22-P