Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Process for Divestiture of Excess Quota Shares in the Individual Fishing Quota Fishery, 69138-69143 [2015-28412]

Download as PDF 69138 Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations Assistant Secretary’s findings and/or order, and there are no other pending objections, the Assistant Secretary’s findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ’s decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. (d)(1) Investigative settlements. At any time after the filing of a complaint, and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA’s approval of a settlement reached by the respondent and the complainant demonstrates OSHA’s consent and achieves the consent of all three parties. (2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary’s findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ, or by the ARB if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as the case may be. (e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1982.113. Lhorne on DSK5TPTVN1PROD with RULES § 1982.112 Judicial review. (a) Within 60 days after the issuance of a final order under §§ 1982.109 and 1982.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. (b) A final order is not subject to judicial review in any criminal or other civil proceeding. (c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. VerDate Sep<11>2014 14:17 Nov 06, 2015 Jkt 238001 § 1982.113 Judicial enforcement. (a) Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under NTSSA, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under NTSSA, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court. (b) Whenever a person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under FRSA, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. complaint must also be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. § 1982.115 of rules. Special circumstances; waiver In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the ALJ or the ARB on review may, upon application, after three-days notice to all parties, waive any rule or issue such orders that justice or the administration of NTSSA or FRSA requires. [FR Doc. 2015–28040 Filed 11–6–15; 8:45 am] BILLING CODE 4510–26–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 150721634–5999–02] § 1982.114 District court jurisdiction of retaliation complaints. RIN 0648–BF11 (a) If there is no final order of the Secretary, 210 days have passed since the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy. At the request of either party, the action shall be tried by the court with a jury. (b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1982.109. An employee prevailing in a proceeding under paragraph (a) shall be entitled to all relief necessary to make the employee whole, including, where appropriate: Reinstatement with the same seniority status that the employee would have had, but for the retaliation; any back pay with interest; and payment of compensatory damages, including compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The court may also order punitive damages in an amount not to exceed $250,000. (c) Within 7 days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending upon where the proceeding is pending, a copy of the file-stamped complaint. In all cases, a copy of the Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Process for Divestiture of Excess Quota Shares in the Individual Fishing Quota Fishery PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: In January 2011, NMFS implemented the trawl rationalization program (a catch share program) for the Pacific coast groundfish limited entry trawl fishery. The program was implemented through Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan (FMP) and the corresponding implementing regulations. Amendment 20 established the trawl rationalization program, which includes an Individual Fishing Quota program for limited entry trawl participants. Under current regulations, quota share permit owners must divest quota share holdings that exceed accumulation limits by November 30, 2015. This final rule makes narrow procedural additions to regulations to clarify how divestiture and revocation of excess quota share will occur in November 2015, and establishes procedures for the future if divestiture becomes necessary. DATES: Effective November 4, 2015. SUMMARY: E:\FR\FM\09NOR1.SGM 09NOR1 Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is summarized in the Classification section of this final rule. NMFS also prepared an Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule. Copies of the IRFA, FRFA and the Small Entity Compliance Guide are available from William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115–0070; or by phone at 206–526–6150. Copies of the Small Entity Compliance Guide are available on the West Coast Region’s Web site at http:// www.westcoast.fisheries.noaa.gov/. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the West Coast Region and by email to OIRA_ Submission@omb.eop.gov, or fax to (202) 395–7285. FOR FURTHER INFORMATION CONTACT: Sarah Towne, 206–526–4140, sarah.towne@noaa.gov. SUPPLEMENTARY INFORMATION: ADDRESSES: Lhorne on DSK5TPTVN1PROD with RULES Background NMFS implemented a trawl rationalization program in 2011 for the Pacific coast groundfish limited entry trawl fishery. Amendment 20 to the FMP established the program and was approved in 2010 and implemented through two rulemakings: the first published on October 1, 2010 (75 FR 60868) and implemented the initial quota share allocations; the second published December 15, 2010 (75 FR 78344). The shorebased trawl sector is managed under an individual fishing quota (IFQ) program where quota share (QS) permit owners hold QS and individual bycatch quota (IBQ) shares for up to 30 IFQ species. Current regulations set accumulation limits on the amount of QS or IBQ that a person, individually or collectively, may own or control in the shorebased IFQ program. There are individual control limits for each of the 30 IFQ species, as well as an aggregate nonwhiting control limit across species. Consistent with the trawl rationalization program, some QS permit owners were initially allocated an amount of QS and/or IBQ that exceeded one or more of the control limits, based on their catch history during the qualifying years. The regulations provide these QS permit owners an adjustment period to hold the excess shares, but they must completely divest of any excess QS or IBQ by VerDate Sep<11>2014 14:17 Nov 06, 2015 Jkt 238001 November 30, 2015. For any QS permit owner who does not divest of his excess shares by the deadline, the regulations specify that NMFS will revoke his excess QS or IBQ and redistribute it to other QS permit owners in proportion to their current QS or IBQ holdings, up to the control limits. This action adds the revocation protocols for cases where QS permit owners do not voluntarily divest of QS holdings in excess of the control limits by the divestiture deadline, adds an option where QS permit owners who exceed the aggregate nonwhiting control limit can abandon excess QS to NMFS, and establishes procedures if divestiture becomes necessary in 2016 and beyond. NMFS published a proposed rule for this action on September 2, 2015 (80 FR 53088). The preamble to the proposed rule provides more background and information on accumulation limits and divestiture, and describes the method for revoking and redistributing QS in excess of the accumulation limits after the divestiture deadline, as well as the method and deadline for abandonment, which are not repeated here. Response to Comments The comment period on the proposed rule ended on October 2, 2015. NMFS received two comment letters, one from a processors’ association and one from a harvester/processor company. The first letter addressed the proposed abandonment procedure. The second letter opposed the process for proportional revocation and redistribution of excess QS and requested that NMFS retract and reevaluate the aggregate control limit that was adopted in 2010 as part of Amendment 20. Comments from both letters are addressed below. Comment 1: The commenter supported the proposed QS abandonment option for permit owners over the aggregate nonwhiting control limit, but requested that NMFS add an abandonment option for those cases where a permit owner exceeds one or more individual species control limits across multiple permits. The commenter noted that such an option would be simpler and provide more flexibility than the proportional reduction method described in the proposed rule, and would create less work for NMFS while still meeting the objective of ownership caps. Response: Under the existing regulations, QS permit owners who exceed an individual species control limit across multiple permits have the ability to divest themselves of individual species shares presently, and if they do not divest by the deadline, PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 69139 NMFS will only revoke excess shares of that species. Thus there is no need to provide an option for abandonment at the individual species level. On the other hand, if a QS permit owner who exceeds the aggregate nonwhiting control limit does not divest by the deadline, NMFS will revoke some shares of each non-widow species contributing to the aggregate calculation, up to 27 species (revocation of widow species will not occur until widow reallocation is complete). NMFS agrees with the Pacific Fishery Management Council (Council) that an abandonment option for the aggregate nonwhiting control limit is appropriate because proportional reduction of 27 species would be cumbersome, and could result in high value species being automatically revoked, while divestiture of an individual species, whether across multiple QS permits or not, does not necessitate an abandonment option. Comment 2: The commenter supported the proposed notification process for QS permit owners who may exceed an accumulation limit in 2016 and beyond, but asked NMFS to consider a deadline longer than 60 days. Response: NMFS agrees and has modified the final rule to implement a 90-day deadline for divestiture if NMFS determines that a QS permit owner exceeds an accumulation limit in 2016 or beyond (instead of the 60-day deadline in the proposed rule). In addition, if a QS permit owner was found to exceed the control limit for aggregate nonwhiting holdings in 2016 or beyond, the QS permit owner may abandon QS to NMFS within 60 days of notification by NMFS (instead of the 30day deadline in the proposed rule). Comment 3: The commenter asked NMFS to reconsider the proportional revocation of QS at the individual species level and across multiple QS permits because it is unfair, inefficient, and unaligned with conservation goals. The commenter also opposed proportional revocation for the aggregate nonwhiting control limit. The commenter asserted that proportional revocation is inconsistent with the Magnuson-Stevens Act (MSA) and the Administrative Procedure Act (APA). Response: Revocation of QS or IBQ in excess of the accumulation limits was approved and implemented under Amendment 20 and is beyond the scope of this rulemaking. This rulemaking adds specifics for revocation when a QS permit owner exceeds a control limit across multiple permits or exceeds the aggregate nonwhiting control limit. If a QS permit owner exceeds an individual species control limit in just one QS permit, NMFS will revoke excess QS or E:\FR\FM\09NOR1.SGM 09NOR1 Lhorne on DSK5TPTVN1PROD with RULES 69140 Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations IBQ at the species level. There will be no proportional method necessary, just a simple revocation of the excess amount. However, if a QS permit owner exceeds an individual species control limit across multiple permits after the divestiture deadline, under this rulemaking NMFS will revoke QS or IBQ for that species from each permit contributing to the overage, in proportion to the amount the QS percentage from each permit contributes to the total QS percentage owned. If a QS permit owner exceeds the aggregate nonwhiting control limit after the divestiture deadline, under this rulemaking NMFS will revoke QS at the species level in proportion to the amount of the aggregate overage divided by the aggregate total owned. Proportional revocation will only be used in cases where QS permit owners do not voluntarily divest of their excess QS or IBQ by the divestiture deadline, whether across multiple permits or at the aggregate nonwhiting control limit level. The choice is completely in the hands of participants: Sell or trade or otherwise divest by the deadline, or excess QS or IBQ across multiple permits or above the aggregate nonwhiting control limit will be revoked proportionally. By the November 30, 2015 divestiture deadline, QS permit owners initially allocated excess shares could have held excess QS or IBQ for nearly 5 years (the IFQ program began on January 11, 2011) and will have had nearly 2 years to divest of excess shares (QS trading began on January 1, 2014). NMFS agrees with the Council that proportional revocation is a fair method to revoke QS or IBQ after the divestiture deadline, whether across multiple permits or if someone exceeds the aggregate nonwhiting control limit. Comment 4: The commenter asserted that the proportional redistribution of abandoned or revoked QS to all other QS permit owners is economically inefficient, harmful to conservation goals, and reduces the fishery’s ability to harvest the optimum yield. They also state that NMFS should have considered how proportional redistribution satisfies the objectives of MSA, the Fishery Ecosystem Plan (FEP), and Amendments 20 and 21 to the Pacific Coast Groundfish FMP. In addition, they suggest that NMFS should auction abandoned or revoked QS. Response: Proportional redistribution was approved and implemented under Amendment 20 and is beyond the scope of this rulemaking. If excess QS is abandoned to NMFS by the abandonment deadline (in the case of QS in excess of the aggregate VerDate Sep<11>2014 14:17 Nov 06, 2015 Jkt 238001 nonwhiting control limit), or if QS or IBQ is revoked by NMFS after the divestiture deadline, NMFS will redistribute the abandoned or revoked QS or IBQ to all other QS permit owners in proportion to their current share holdings. Proportional redistribution of abandoned or revoked QS or IBQ will only be used in cases where QS permit owners choose to abandon QS or do not voluntarily divest of their excess QS or IBQ by the divestiture deadline. The choice is completely in the hands of participants to sell or trade or otherwise divest excess QS or IBQ prior to the divestiture deadline, abandon excess QS to NMFS for species of their choosing if they are over the aggregate nonwhiting control limit, and/or have excess QS or IBQ revoked by NMFS if they do not divest by the divestiture deadline. NMFS agrees with the Council that proportional redistribution of abandoned or revoked excess QS or IBQ to current QS permit owners is a fair outcome. The implementation of an auction for abandoned or revoked QS is also outside of the scope of this rulemaking. This is an administrative rule to add to existing procedures for the revocation and redistribution of excess QS after the divestiture deadline. While NMFS agrees that an auction for revocation and redistribution of QS or IBQ in 2016 or beyond may be worthy of consideration, this proposal needs to make its way through the Council process. The commenter can choose to participate in the 5-year review to pursue this issue. (The response to Comment 6 provides more information about how to participate in the 5-year review.) Comment 5: The commenter asserted that NMFS’ decision to proceed with the existing divestiture deadline of November 30, 2015, instead of delaying divestiture until after the widow rockfish reallocation, is unreasonable and violates the MSA and the APA because NMFS did not address that decision in the proposed rule. Response: NMFS brought this issue with several alternatives to the Council for consideration in November 2014 and April 2015 (see the November 2014 Agenda Item J.2.b NMFS Report; the November 2014 Agenda Item J.2.b Supplemental NMFS Report 2; and the April 2015 Agenda Item E.6.a NMFS Report). After much Council-level discussion of the alternatives for delaying both the individual and aggregate control limits until after the widow reallocation, the Council did not modify its original decision and the divestiture requirement and deadline remain in place, with widow rockfish excluded until reallocation is complete. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 All participants have been on notice about the divestiture requirement since 2010, and many have been planning how to divest or have already divested down to the control limits. Because the reallocation of widow rockfish will only affect one IFQ species, it is not overly complicated to exclude widow rockfish from the divestiture deadline and address divestiture of that species as part of the widow reallocation process. Comment 6: The commenter asserted that the aggregate control limit of 2.7% for the nonwhiting, shorebased groundfish fishery established under Amendment 20 in 2010 violates the APA, MSA and the National Environmental Policy Act (NEPA) and requested that NMFS retract and properly evaluate the aggregate nonwhiting control limit in a manner consistent with all laws. Response: The aggregate control limit of 2.7% for the nonwhiting, shorebased groundfish fishery was approved by NMFS in 2010 and is beyond the scope of this rulemaking, which addresses final implementation aspects of the control limits. Further, NMFS does not agree that the 2.7% nonwhiting control limit violates applicable law and should be retracted. The MSA requires specification of maximum shares, expressed as a percentage of the total limited access privileges, which a limited access privilege holder is permitted to hold, acquire, or use, such that no privilege holder may acquire an excessive share of the total privileges in the program. This requirement is similar to National Standard 4, which requires fair and equitable allocations that are reasonably calculated to promote conservation and carried out so no individual or entity acquires an excessive share of the privileges. The Council, including its advisory committees, considered over several years various options and analyses in developing the control limits that were ultimately approved by NMFS in 2010. The accumulation limits were developed based on a review of past participation in the fishery, available policy guidance on excessive shares and market control, and the concept of distributing quota and fishing activity among more participants in order to address concerns such as community impacts and the program’s potential effects on new entrants. The choice of the control limits represents a balance between these sometimes competing interests. No comments specific to the aggregate control limit of 2.7% for the nonwhiting, shorebased groundfish fishery were submitted to NMFS during the 2010 rulemaking to implement the E:\FR\FM\09NOR1.SGM 09NOR1 Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations program. As discussed above, all participants have been aware of the control limits and the requirement to divest since 2010. One of the significant issues for the Council and NMFS was whether, once the required accumulation limits were adopted, there should be an adjustment period for participants who owned or controlled excess QS. The Council adopted and NMFS approved a divestiture period to occur during years 3 and 4 of the program, after considerable discussion and public comment. The divestiture period was extended due to unrelated litigation that resulted in reconsideration of the initial allocation of Pacific whiting because the agency and Council determined that no transfers of Pacific whiting shares should occur until resolution of the initial allocation. Thus, participants have had nearly 5 years to prepare for this divestiture requirement. The Council and NMFS have initiated a 5-year review of the trawl rationalization program. If the commenter wishes that this program review include an examination of the impacts and appropriateness of the nonwhiting aggregate control limit, the commenter should participate in the program review. The 5-year review is next scheduled for discussion at the Council level at the June 23–28, 2016, meeting in Tacoma, WA. The commenter may submit a comment for the 5-year program review to the open comment section of the briefing book for any Council meeting prior to June 2016, or may submit a comment to the briefing book under the trawl rationalization program five-year review agenda item for the June 2016 Council meeting. Changes From the Proposed Rule Lhorne on DSK5TPTVN1PROD with RULES In response to comments, NMFS changed the deadline to divest in 2016 or beyond from 60 days from the date of notification by NMFS to 90 days from the date of notification by NMFS. Linked with this deadline change, NMFS also changed the deadline to abandon QS in excess of the aggregate nonwhiting control limit from 30 days from the date of notification by NMFS to 60 days from the date of notification by NMFS, to provide more time for QS permit owners to determine if they would like to use the abandonment option. Classification Pursuant to sections 304(b)(1)(a) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast VerDate Sep<11>2014 14:17 Nov 06, 2015 Jkt 238001 Groundfish FMP, the Magnuson-Stevens Act, and other applicable law. The need to implement these measures in a timely manner constitutes good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the thirty day waiting period and make the rule effective immediately upon filing for public inspection by the Office of the Federal Register. It would be impractical to have to wait thirty days before the rule is effective because all QS permit owners must be made aware of the clarified divestiture protocols in this final rule prior to the November 30, 2015 divestiture deadline. There is also a public interest need to implement this action immediately to allow QS permit owners who exceed the aggregate nonwhiting control limit the ability and flexibility to abandon excess QS of the species of their choosing to NMFS by the November 15, 2015 deadline. Otherwise NMFS will revoke excess QS for these permit owners according to the procedures established in this rule. Finally, the final rule only makes minor procedural modifications to clarify existing divestiture and revocation regulations. This final rule has been determined to be not significant for purposes of Executive Order 12866. A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action are addressed below. NMFS also prepared a Regulatory Impact Review (RIR) for this action. A copy of the RIR/ FRFA is available from NMFS (see ADDRESSES). A summary of the FRFA, per the requirements of 5 U.S.C. 604(a) follows: NMFS, pursuant to section 604 of the Regulatory Flexibility Act, has prepared a FRFA. The FRFA incorporates the initial regulatory flexibility analysis (IRFA) prepared for the proposed rule and proposed specifications. The analysis in the IRFA is not repeated here in its entirety. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUPPLEMENTARY INFORMATION Background section of the preamble and in the preamble of the proposed rule. NMFS did not receive any comments on the IRFA. This final rule will affect small entities. There are 138 quota shareholders potentially directly affected by the aggregate species limits as reductions of excess shares will be PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 69141 taken from the quota share percentages listed on the permit. At the first level of ownership and based on affiliations, there are 96 unique businesses. Even if some first-level owners are persons, they are considered businesses for purposes for determining the effects on small businesses. These QS holders must direct quota pounds to various vessel accounts so that quota pounds can be fished. Quite frequently they also own limited entry permits, the vessels attached to these permits, or processing facilities. As compared to secondary owners or investors, first-level quota shareholders are active participants in the fishery, and thus are businesses for purposes of this rule. Also, when renewing their quota share permits, all quota shareholders must respond to questions of whether they consider themselves a large or small business. All 138 quota shareholders are businesses. Of these businesses, 15 are large. There are nine entities affected by the control limit for one or more individual species. These entities are affected only in the sense that NMFS is showing how it will calculate excess shares across multiple permits. There are three or less affected entities by the aggregate species limit divestiture rules. When combined, there are nine unique entities affected by this rule—seven small and two large. Recordkeeping and reporting requirements are being modified by this final rule. NMFS is amending the supporting statement for the Pacific Coast groundfish trawl rationalization program permit and license information collection Office of Management and Business (OMB) Paperwork Reduction Act (PRA) requirements (number 0648– 0620) to reflect the abandonment protocols described in the preamble to this final rule. NMFS requests any comments on the PRA abandonment protocol, including whether those minor paperwork protocols described above would unnecessarily burden any QS owners. There are no significant alternatives to the 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. Inclusion of the abandonment process and the extension of divestiture and abandonment deadlines should aid small businesses in meeting the other divestiture requirements. There are no relevant Federal rules that may duplicate, overlap, or conflict with this action. This final rule contains a collectionof-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648–0620. E:\FR\FM\09NOR1.SGM 09NOR1 69142 Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations Public reporting burden for QS permit owners who exceed the aggregate nonwhiting control limit and wish to abandon QS to NMFS is estimated to average 10 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to OIRA_ Submission@omb.eop.gov, or fax to 202–395–7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. Pursuant to Executive Order 13175, this rule was developed after meaningful collaboration with tribal officials from the area covered by the Pacific Coast Groundfish FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council’s jurisdiction. The regulations do not require the tribes to change from their current practices. List of Subjects in 50 CFR Part 660 Fisheries, Fishing, and Indian fisheries. Dated: November 3, 2015. Samuel D. Rauch III, 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. 2. In § 660.140, revise paragraph (d)(4)(v) to read as follows: Lhorne on DSK5TPTVN1PROD with RULES ■ § 660.140 Shorebased IFQ Program. * * * * * (d) * * * (4) * * * (v) Divestiture. Accumulation limits will be calculated by first calculating the aggregate non-whiting QS limit and VerDate Sep<11>2014 14:17 Nov 06, 2015 Jkt 238001 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 during 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 QS (except for widow rockfish QS) or IBQ in excess of the accumulation limits by November 30, 2015, according to the procedure provided under paragraph (d)(4)(v)(A) of this section. If NMFS identifies that a QS permit owner exceeds the accumulation limits in 2016 or beyond, the QS permit owner must divest of the QS or IBQ in excess of the accumulation limits according to the procedure provided under paragraph (d)(4)(v)(B) of this section. Owners 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. (A) Divestiture and redistribution process in 2015. QS permit owners in excess of the control limit for aggregate nonwhiting QS holdings may abandon QS to NMFS by November 15, 2015 using the procedure provided under paragraph (d)(4)(v)(C) of this section. QS permit owners must divest themselves of any QS or IBQ in excess of the accumulation limits by November 30, 2015, except for widow rockfish QS, which cannot be transferred as described in paragraph (d)(3)(ii)(B)(2) of this section. After the November 30, 2015 divestiture deadline, NMFS will revoke all QS or IBQ held by a person (including any person who has ownership interest in the owner names PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 on the permit) in excess of the accumulation limits following the procedures specified under paragraphs (d)(4)(v)(D) through (G) of this section. All abandoned or revoked shares will be redistributed to all other QS permit owners in proportion to their QS or IBQ holdings on or about January 1, 2016, based on current ownership records, except that no person will be allocated an amount of QS or IBQ that would put that person over an accumulation limit. (B) Divestiture and redistribution process in 2016 and beyond. Any person owning or controlling QS or IBQ must comply with the accumulation limits, even if that control is not reflected in the ownership records available to NMFS as specified under paragraphs (d)(4)(i) and (iii) of this section. If NMFS identifies that a QS permit owner exceeds an accumulation limit in 2016 or beyond, NMFS will notify the QS permit owner that he or she has 90 days to divest of the excess QS or IBQ. In the case that a QS permit owner exceeds the control limit for aggregate nonwhiting QS holdings, the QS permit owner may abandon QS to NMFS within 60 days of the notification by NMFS, using the procedure provided under paragraph (d)(4)(v)(C) of this section. After the 90-day divestiture period, NMFS will revoke all QS or IBQ held by a person (including any person who has ownership interest in the owner names on the permit) in excess of the accumulation limits following the procedures specified under paragraphs (d)(4)(v)(D) through (G) of this section. All abandoned or revoked shares will be redistributed to all other QS permit owners in proportion to their QS or IBQ holdings on or about January 1 of the following calendar year, based on current ownership records, except that no person will be allocated an amount of QS or IBQ that would put that person over an accumulation limit. (C) Abandonment of QS. QS permit owners that are over the control limit for aggregate nonwhiting QS holdings may voluntarily abandon QS if they notify NMFS in writing by the applicable deadline specified under paragraph (d)(4)(v)(A) or (B) of this section. The written abandonment request must include the following information: QS permit number, IFQ species, and the QS percentage to be abandoned. Either the QS permit owner or an authorized representative of the QS permit owner must sign the request. QS permit owners choosing to utilize the abandonment option will permanently relinquish to NMFS any right to the abandoned QS, and the QS will be redistributed as described under paragraph (d)(4)(v)(A) E:\FR\FM\09NOR1.SGM 09NOR1 Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations or (B) of this section. No compensation will be due for any abandoned shares. (D) Revocation. NMFS will revoke QS from any QS permit owner who exceeds an accumulation limit after the divestiture deadline specified under paragraph (d)(4)(v)(A) or (B) of this section. NMFS will follow the revocation approach summarized in the following table and explained under paragraphs (d)(4)(v)(E) through (G) of this section: If, after the divestiture deadline, a QS permit owner exceeds . . . Then . . . An individual species control limit (non-widow until reallocation is complete) in one QS permit. An individual species control limit (non-widow until reallocation is complete) across multiple QS permits. NMFS will revoke excess QS at the species level. The control limit for aggregate nonwhiting QS holdings .......................... (E) Revocation of excess QS or IBQ from one QS permit. In cases where a person has not divested to the control limits for individual species (nonwidow until reallocation is complete) in one QS permit by the deadline specified under paragraph (d)(4)(v)(A) or (B) of this section, NMFS will revoke excess QS at the species level in order to get that person to the limits. NMFS will redistribute the revoked QS following the process specified in paragraph (d)(4)(v)(A) or (B) of this section. No compensation will be due for any revoked shares. (F) Revocation of excess QS or IBQ from multiple QS permits. In cases where a person has not divested to the control limits for individual species (non-widow QS until reallocation is Lhorne on DSK5TPTVN1PROD with RULES 69143 VerDate Sep<11>2014 14:17 Nov 06, 2015 Jkt 238001 NMFS will revoke QS at the species level in proportion to the amount the QS percentage from each permit contributes to the total QS percentage owned. NMFS will revoke QS at the species level in proportion to the amount of the aggregate overage divided by the aggregate total owned. Until widow reallocation is complete, the proportion will be adjusted to hold widow QS at a constant level while bringing the aggregate percentage owned to 2.700%, using normal rounding rules. complete) across QS permits by the deadline specified under paragraph (d)(4)(v)(A) or (B) of this section, NMFS will revoke QS at the species level in proportion to the amount the QS percentage from each permit contributes to the total QS percentage owned. NMFS will redistribute the revoked QS following the process specified in paragraph (d)(4)(v)(A) or (B) of this section. No compensation will be due for any revoked shares. (G) Revocation of QS in excess of the control limit for aggregate nonwhiting QS holdings. In cases where a QS permit owner has not divested to the control limit for aggregate nonwhiting QS holdings by the deadline specified under paragraph (d)(4)(v)(A) or (B) of this section, NMFS will revoke QS at PO 00000 Frm 00033 Fmt 4700 Sfmt 9990 the species level in proportion to the amount of the aggregate overage divided by the aggregate total owned. Until widow reallocation is complete and transfer of widow is allowed, widow will continue to be included in the aggregate calculation, but the proportion will be adjusted to hold widow QS at a constant level while bringing the aggregate percentage owned to 2.700%, using normal rounding rules. NMFS will redistribute the revoked QS following the process in paragraph (d)(4)(v)(A) or (B) of this section. No compensation will be due for any revoked shares. * * * * * [FR Doc. 2015–28412 Filed 11–4–15; 11:15 am] BILLING CODE 3510–22–P E:\FR\FM\09NOR1.SGM 09NOR1

Agencies

[Federal Register Volume 80, Number 216 (Monday, November 9, 2015)]
[Rules and Regulations]
[Pages 69138-69143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28412]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 150721634-5999-02]
RIN 0648-BF11


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Process for Divestiture of Excess 
Quota Shares in the Individual Fishing Quota Fishery

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

ACTION: Final rule.

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SUMMARY: In January 2011, NMFS implemented the trawl rationalization 
program (a catch share program) for the Pacific coast groundfish 
limited entry trawl fishery. The program was implemented through 
Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan 
(FMP) and the corresponding implementing regulations. Amendment 20 
established the trawl rationalization program, which includes an 
Individual Fishing Quota program for limited entry trawl participants. 
Under current regulations, quota share permit owners must divest quota 
share holdings that exceed accumulation limits by November 30, 2015. 
This final rule makes narrow procedural additions to regulations to 
clarify how divestiture and revocation of excess quota share will occur 
in November 2015, and establishes procedures for the future if 
divestiture becomes necessary.

DATES: Effective November 4, 2015.

[[Page 69139]]


ADDRESSES: NMFS prepared a Final Regulatory Flexibility Analysis 
(FRFA), which is summarized in the Classification section of this final 
rule. NMFS also prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for the proposed rule. Copies of the IRFA, FRFA and the Small 
Entity Compliance Guide are available from William W. Stelle, Jr., 
Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way 
NE., Seattle, WA 98115-0070; or by phone at 206-526-6150. Copies of the 
Small Entity Compliance Guide are available on the West Coast Region's 
Web site at http://www.westcoast.fisheries.noaa.gov/. Written comments 
regarding the burden-hour estimates or other aspects of the collection-
of-information requirements contained in this final rule may be 
submitted to the West Coast Region and by email to 
OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Sarah Towne, 206-526-4140, 
sarah.towne@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS implemented a trawl rationalization program in 2011 for the 
Pacific coast groundfish limited entry trawl fishery. Amendment 20 to 
the FMP established the program and was approved in 2010 and 
implemented through two rulemakings: the first published on October 1, 
2010 (75 FR 60868) and implemented the initial quota share allocations; 
the second published December 15, 2010 (75 FR 78344).
    The shorebased trawl sector is managed under an individual fishing 
quota (IFQ) program where quota share (QS) permit owners hold QS and 
individual bycatch quota (IBQ) shares for up to 30 IFQ species. Current 
regulations set accumulation limits on the amount of QS or IBQ that a 
person, individually or collectively, may own or control in the 
shorebased IFQ program. There are individual control limits for each of 
the 30 IFQ species, as well as an aggregate nonwhiting control limit 
across species. Consistent with the trawl rationalization program, some 
QS permit owners were initially allocated an amount of QS and/or IBQ 
that exceeded one or more of the control limits, based on their catch 
history during the qualifying years. The regulations provide these QS 
permit owners an adjustment period to hold the excess shares, but they 
must completely divest of any excess QS or IBQ by November 30, 2015. 
For any QS permit owner who does not divest of his excess shares by the 
deadline, the regulations specify that NMFS will revoke his excess QS 
or IBQ and redistribute it to other QS permit owners in proportion to 
their current QS or IBQ holdings, up to the control limits.
    This action adds the revocation protocols for cases where QS permit 
owners do not voluntarily divest of QS holdings in excess of the 
control limits by the divestiture deadline, adds an option where QS 
permit owners who exceed the aggregate nonwhiting control limit can 
abandon excess QS to NMFS, and establishes procedures if divestiture 
becomes necessary in 2016 and beyond.
    NMFS published a proposed rule for this action on September 2, 2015 
(80 FR 53088). The preamble to the proposed rule provides more 
background and information on accumulation limits and divestiture, and 
describes the method for revoking and redistributing QS in excess of 
the accumulation limits after the divestiture deadline, as well as the 
method and deadline for abandonment, which are not repeated here.

Response to Comments

    The comment period on the proposed rule ended on October 2, 2015. 
NMFS received two comment letters, one from a processors' association 
and one from a harvester/processor company. The first letter addressed 
the proposed abandonment procedure. The second letter opposed the 
process for proportional revocation and redistribution of excess QS and 
requested that NMFS retract and reevaluate the aggregate control limit 
that was adopted in 2010 as part of Amendment 20. Comments from both 
letters are addressed below.
    Comment 1: The commenter supported the proposed QS abandonment 
option for permit owners over the aggregate nonwhiting control limit, 
but requested that NMFS add an abandonment option for those cases where 
a permit owner exceeds one or more individual species control limits 
across multiple permits. The commenter noted that such an option would 
be simpler and provide more flexibility than the proportional reduction 
method described in the proposed rule, and would create less work for 
NMFS while still meeting the objective of ownership caps.
    Response: Under the existing regulations, QS permit owners who 
exceed an individual species control limit across multiple permits have 
the ability to divest themselves of individual species shares 
presently, and if they do not divest by the deadline, NMFS will only 
revoke excess shares of that species. Thus there is no need to provide 
an option for abandonment at the individual species level. On the other 
hand, if a QS permit owner who exceeds the aggregate nonwhiting control 
limit does not divest by the deadline, NMFS will revoke some shares of 
each non-widow species contributing to the aggregate calculation, up to 
27 species (revocation of widow species will not occur until widow 
reallocation is complete). NMFS agrees with the Pacific Fishery 
Management Council (Council) that an abandonment option for the 
aggregate nonwhiting control limit is appropriate because proportional 
reduction of 27 species would be cumbersome, and could result in high 
value species being automatically revoked, while divestiture of an 
individual species, whether across multiple QS permits or not, does not 
necessitate an abandonment option.
    Comment 2: The commenter supported the proposed notification 
process for QS permit owners who may exceed an accumulation limit in 
2016 and beyond, but asked NMFS to consider a deadline longer than 60 
days.
    Response: NMFS agrees and has modified the final rule to implement 
a 90-day deadline for divestiture if NMFS determines that a QS permit 
owner exceeds an accumulation limit in 2016 or beyond (instead of the 
60-day deadline in the proposed rule). In addition, if a QS permit 
owner was found to exceed the control limit for aggregate nonwhiting 
holdings in 2016 or beyond, the QS permit owner may abandon QS to NMFS 
within 60 days of notification by NMFS (instead of the 30-day deadline 
in the proposed rule).
    Comment 3: The commenter asked NMFS to reconsider the proportional 
revocation of QS at the individual species level and across multiple QS 
permits because it is unfair, inefficient, and unaligned with 
conservation goals. The commenter also opposed proportional revocation 
for the aggregate nonwhiting control limit. The commenter asserted that 
proportional revocation is inconsistent with the Magnuson-Stevens Act 
(MSA) and the Administrative Procedure Act (APA).
    Response: Revocation of QS or IBQ in excess of the accumulation 
limits was approved and implemented under Amendment 20 and is beyond 
the scope of this rulemaking. This rulemaking adds specifics for 
revocation when a QS permit owner exceeds a control limit across 
multiple permits or exceeds the aggregate nonwhiting control limit. If 
a QS permit owner exceeds an individual species control limit in just 
one QS permit, NMFS will revoke excess QS or

[[Page 69140]]

IBQ at the species level. There will be no proportional method 
necessary, just a simple revocation of the excess amount. However, if a 
QS permit owner exceeds an individual species control limit across 
multiple permits after the divestiture deadline, under this rulemaking 
NMFS will revoke QS or IBQ for that species from each permit 
contributing to the overage, in proportion to the amount the QS 
percentage from each permit contributes to the total QS percentage 
owned. If a QS permit owner exceeds the aggregate nonwhiting control 
limit after the divestiture deadline, under this rulemaking NMFS will 
revoke QS at the species level in proportion to the amount of the 
aggregate overage divided by the aggregate total owned.
    Proportional revocation will only be used in cases where QS permit 
owners do not voluntarily divest of their excess QS or IBQ by the 
divestiture deadline, whether across multiple permits or at the 
aggregate nonwhiting control limit level. The choice is completely in 
the hands of participants: Sell or trade or otherwise divest by the 
deadline, or excess QS or IBQ across multiple permits or above the 
aggregate nonwhiting control limit will be revoked proportionally.
    By the November 30, 2015 divestiture deadline, QS permit owners 
initially allocated excess shares could have held excess QS or IBQ for 
nearly 5 years (the IFQ program began on January 11, 2011) and will 
have had nearly 2 years to divest of excess shares (QS trading began on 
January 1, 2014). NMFS agrees with the Council that proportional 
revocation is a fair method to revoke QS or IBQ after the divestiture 
deadline, whether across multiple permits or if someone exceeds the 
aggregate nonwhiting control limit.
    Comment 4: The commenter asserted that the proportional 
redistribution of abandoned or revoked QS to all other QS permit owners 
is economically inefficient, harmful to conservation goals, and reduces 
the fishery's ability to harvest the optimum yield. They also state 
that NMFS should have considered how proportional redistribution 
satisfies the objectives of MSA, the Fishery Ecosystem Plan (FEP), and 
Amendments 20 and 21 to the Pacific Coast Groundfish FMP. In addition, 
they suggest that NMFS should auction abandoned or revoked QS.
    Response: Proportional redistribution was approved and implemented 
under Amendment 20 and is beyond the scope of this rulemaking. If 
excess QS is abandoned to NMFS by the abandonment deadline (in the case 
of QS in excess of the aggregate nonwhiting control limit), or if QS or 
IBQ is revoked by NMFS after the divestiture deadline, NMFS will 
redistribute the abandoned or revoked QS or IBQ to all other QS permit 
owners in proportion to their current share holdings. Proportional 
redistribution of abandoned or revoked QS or IBQ will only be used in 
cases where QS permit owners choose to abandon QS or do not voluntarily 
divest of their excess QS or IBQ by the divestiture deadline. The 
choice is completely in the hands of participants to sell or trade or 
otherwise divest excess QS or IBQ prior to the divestiture deadline, 
abandon excess QS to NMFS for species of their choosing if they are 
over the aggregate nonwhiting control limit, and/or have excess QS or 
IBQ revoked by NMFS if they do not divest by the divestiture deadline. 
NMFS agrees with the Council that proportional redistribution of 
abandoned or revoked excess QS or IBQ to current QS permit owners is a 
fair outcome.
    The implementation of an auction for abandoned or revoked QS is 
also outside of the scope of this rulemaking. This is an administrative 
rule to add to existing procedures for the revocation and 
redistribution of excess QS after the divestiture deadline. While NMFS 
agrees that an auction for revocation and redistribution of QS or IBQ 
in 2016 or beyond may be worthy of consideration, this proposal needs 
to make its way through the Council process. The commenter can choose 
to participate in the 5-year review to pursue this issue. (The response 
to Comment 6 provides more information about how to participate in the 
5-year review.)
    Comment 5: The commenter asserted that NMFS' decision to proceed 
with the existing divestiture deadline of November 30, 2015, instead of 
delaying divestiture until after the widow rockfish reallocation, is 
unreasonable and violates the MSA and the APA because NMFS did not 
address that decision in the proposed rule.
    Response: NMFS brought this issue with several alternatives to the 
Council for consideration in November 2014 and April 2015 (see the 
November 2014 Agenda Item J.2.b NMFS Report; the November 2014 Agenda 
Item J.2.b Supplemental NMFS Report 2; and the April 2015 Agenda Item 
E.6.a NMFS Report). After much Council-level discussion of the 
alternatives for delaying both the individual and aggregate control 
limits until after the widow reallocation, the Council did not modify 
its original decision and the divestiture requirement and deadline 
remain in place, with widow rockfish excluded until reallocation is 
complete. All participants have been on notice about the divestiture 
requirement since 2010, and many have been planning how to divest or 
have already divested down to the control limits. Because the 
reallocation of widow rockfish will only affect one IFQ species, it is 
not overly complicated to exclude widow rockfish from the divestiture 
deadline and address divestiture of that species as part of the widow 
reallocation process.
    Comment 6: The commenter asserted that the aggregate control limit 
of 2.7% for the nonwhiting, shorebased groundfish fishery established 
under Amendment 20 in 2010 violates the APA, MSA and the National 
Environmental Policy Act (NEPA) and requested that NMFS retract and 
properly evaluate the aggregate nonwhiting control limit in a manner 
consistent with all laws.
    Response: The aggregate control limit of 2.7% for the nonwhiting, 
shorebased groundfish fishery was approved by NMFS in 2010 and is 
beyond the scope of this rulemaking, which addresses final 
implementation aspects of the control limits. Further, NMFS does not 
agree that the 2.7% nonwhiting control limit violates applicable law 
and should be retracted. The MSA requires specification of maximum 
shares, expressed as a percentage of the total limited access 
privileges, which a limited access privilege holder is permitted to 
hold, acquire, or use, such that no privilege holder may acquire an 
excessive share of the total privileges in the program. This 
requirement is similar to National Standard 4, which requires fair and 
equitable allocations that are reasonably calculated to promote 
conservation and carried out so no individual or entity acquires an 
excessive share of the privileges. The Council, including its advisory 
committees, considered over several years various options and analyses 
in developing the control limits that were ultimately approved by NMFS 
in 2010. The accumulation limits were developed based on a review of 
past participation in the fishery, available policy guidance on 
excessive shares and market control, and the concept of distributing 
quota and fishing activity among more participants in order to address 
concerns such as community impacts and the program's potential effects 
on new entrants. The choice of the control limits represents a balance 
between these sometimes competing interests.
    No comments specific to the aggregate control limit of 2.7% for the 
nonwhiting, shorebased groundfish fishery were submitted to NMFS during 
the 2010 rulemaking to implement the

[[Page 69141]]

program. As discussed above, all participants have been aware of the 
control limits and the requirement to divest since 2010. One of the 
significant issues for the Council and NMFS was whether, once the 
required accumulation limits were adopted, there should be an 
adjustment period for participants who owned or controlled excess QS. 
The Council adopted and NMFS approved a divestiture period to occur 
during years 3 and 4 of the program, after considerable discussion and 
public comment. The divestiture period was extended due to unrelated 
litigation that resulted in reconsideration of the initial allocation 
of Pacific whiting because the agency and Council determined that no 
transfers of Pacific whiting shares should occur until resolution of 
the initial allocation. Thus, participants have had nearly 5 years to 
prepare for this divestiture requirement.
    The Council and NMFS have initiated a 5-year review of the trawl 
rationalization program. If the commenter wishes that this program 
review include an examination of the impacts and appropriateness of the 
nonwhiting aggregate control limit, the commenter should participate in 
the program review. The 5-year review is next scheduled for discussion 
at the Council level at the June 23-28, 2016, meeting in Tacoma, WA. 
The commenter may submit a comment for the 5-year program review to the 
open comment section of the briefing book for any Council meeting prior 
to June 2016, or may submit a comment to the briefing book under the 
trawl rationalization program five-year review agenda item for the June 
2016 Council meeting.

Changes From the Proposed Rule

    In response to comments, NMFS changed the deadline to divest in 
2016 or beyond from 60 days from the date of notification by NMFS to 90 
days from the date of notification by NMFS. Linked with this deadline 
change, NMFS also changed the deadline to abandon QS in excess of the 
aggregate nonwhiting control limit from 30 days from the date of 
notification by NMFS to 60 days from the date of notification by NMFS, 
to provide more time for QS permit owners to determine if they would 
like to use the abandonment option.

Classification

    Pursuant to sections 304(b)(1)(a) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this 
final rule is consistent with the Pacific Coast Groundfish FMP, the 
Magnuson-Stevens Act, and other applicable law.
    The need to implement these measures in a timely manner constitutes 
good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 
thirty day waiting period and make the rule effective immediately upon 
filing for public inspection by the Office of the Federal Register. It 
would be impractical to have to wait thirty days before the rule is 
effective because all QS permit owners must be made aware of the 
clarified divestiture protocols in this final rule prior to the 
November 30, 2015 divestiture deadline. There is also a public interest 
need to implement this action immediately to allow QS permit owners who 
exceed the aggregate nonwhiting control limit the ability and 
flexibility to abandon excess QS of the species of their choosing to 
NMFS by the November 15, 2015 deadline. Otherwise NMFS will revoke 
excess QS for these permit owners according to the procedures 
established in this rule. Finally, the final rule only makes minor 
procedural modifications to clarify existing divestiture and revocation 
regulations.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA, and NMFS responses to those comments, and a 
summary of the analyses completed to support the action are addressed 
below. NMFS also prepared a Regulatory Impact Review (RIR) for this 
action. A copy of the RIR/FRFA is available from NMFS (see ADDRESSES). 
A summary of the FRFA, per the requirements of 5 U.S.C. 604(a) follows:
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a FRFA. The FRFA incorporates the initial regulatory 
flexibility analysis (IRFA) prepared for the proposed rule and proposed 
specifications. The analysis in the IRFA is not repeated here in its 
entirety. A description of the action, why it is being considered, and 
the legal basis for this action are contained in the SUPPLEMENTARY 
INFORMATION Background section of the preamble and in the preamble of 
the proposed rule.
    NMFS did not receive any comments on the IRFA. This final rule will 
affect small entities. There are 138 quota shareholders potentially 
directly affected by the aggregate species limits as reductions of 
excess shares will be taken from the quota share percentages listed on 
the permit. At the first level of ownership and based on affiliations, 
there are 96 unique businesses. Even if some first-level owners are 
persons, they are considered businesses for purposes for determining 
the effects on small businesses. These QS holders must direct quota 
pounds to various vessel accounts so that quota pounds can be fished. 
Quite frequently they also own limited entry permits, the vessels 
attached to these permits, or processing facilities. As compared to 
secondary owners or investors, first-level quota shareholders are 
active participants in the fishery, and thus are businesses for 
purposes of this rule. Also, when renewing their quota share permits, 
all quota shareholders must respond to questions of whether they 
consider themselves a large or small business. All 138 quota 
shareholders are businesses. Of these businesses, 15 are large. There 
are nine entities affected by the control limit for one or more 
individual species. These entities are affected only in the sense that 
NMFS is showing how it will calculate excess shares across multiple 
permits. There are three or less affected entities by the aggregate 
species limit divestiture rules. When combined, there are nine unique 
entities affected by this rule--seven small and two large.
    Recordkeeping and reporting requirements are being modified by this 
final rule. NMFS is amending the supporting statement for the Pacific 
Coast groundfish trawl rationalization program permit and license 
information collection Office of Management and Business (OMB) 
Paperwork Reduction Act (PRA) requirements (number 0648-0620) to 
reflect the abandonment protocols described in the preamble to this 
final rule. NMFS requests any comments on the PRA abandonment protocol, 
including whether those minor paperwork protocols described above would 
unnecessarily burden any QS owners.
    There are no significant alternatives to the 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. 
Inclusion of the abandonment process and the extension of divestiture 
and abandonment deadlines should aid small businesses in meeting the 
other divestiture requirements. There are no relevant Federal rules 
that may duplicate, overlap, or conflict with this action.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0620.

[[Page 69142]]

Public reporting burden for QS permit owners who exceed the aggregate 
nonwhiting control limit and wish to abandon QS to NMFS is estimated to 
average 10 minutes per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 
email to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    Pursuant to Executive Order 13175, this rule was developed after 
meaningful collaboration with tribal officials from the area covered by 
the Pacific Coast Groundfish FMP. Under the Magnuson-Stevens Act at 16 
U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction. The 
regulations do not require the tribes to change from their current 
practices.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: November 3, 2015.
Samuel D. Rauch III,
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 paragraph (d)(4)(v) to read as follows:


Sec.  660.140  Shorebased IFQ Program.

* * * * *
    (d) * * *
    (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 during 
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 QS (except for widow rockfish QS) or 
IBQ in excess of the accumulation limits by November 30, 2015, 
according to the procedure provided under paragraph (d)(4)(v)(A) of 
this section. If NMFS identifies that a QS permit owner exceeds the 
accumulation limits in 2016 or beyond, the QS permit owner must divest 
of the QS or IBQ in excess of the accumulation limits according to the 
procedure provided under paragraph (d)(4)(v)(B) of this section. Owners 
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.
    (A) Divestiture and redistribution process in 2015. QS permit 
owners in excess of the control limit for aggregate nonwhiting QS 
holdings may abandon QS to NMFS by November 15, 2015 using the 
procedure provided under paragraph (d)(4)(v)(C) of this section. QS 
permit owners must divest themselves of any QS or IBQ in excess of the 
accumulation limits by November 30, 2015, except for widow rockfish QS, 
which cannot be transferred as described in paragraph (d)(3)(ii)(B)(2) 
of this section. After the November 30, 2015 divestiture deadline, NMFS 
will revoke all QS or IBQ held by a person (including any person who 
has ownership interest in the owner names on the permit) in excess of 
the accumulation limits following the procedures specified under 
paragraphs (d)(4)(v)(D) through (G) of this section. All abandoned or 
revoked shares will be redistributed to all other QS permit owners in 
proportion to their QS or IBQ holdings on or about January 1, 2016, 
based on current ownership records, except that no person will be 
allocated an amount of QS or IBQ that would put that person over an 
accumulation limit.
    (B) Divestiture and redistribution process in 2016 and beyond. Any 
person owning or controlling QS or IBQ must comply with the 
accumulation limits, even if that control is not reflected in the 
ownership records available to NMFS as specified under paragraphs 
(d)(4)(i) and (iii) of this section. If NMFS identifies that a QS 
permit owner exceeds an accumulation limit in 2016 or beyond, NMFS will 
notify the QS permit owner that he or she has 90 days to divest of the 
excess QS or IBQ. In the case that a QS permit owner exceeds the 
control limit for aggregate nonwhiting QS holdings, the QS permit owner 
may abandon QS to NMFS within 60 days of the notification by NMFS, 
using the procedure provided under paragraph (d)(4)(v)(C) of this 
section. After the 90-day divestiture period, NMFS will revoke all QS 
or IBQ held by a person (including any person who has ownership 
interest in the owner names on the permit) in excess of the 
accumulation limits following the procedures specified under paragraphs 
(d)(4)(v)(D) through (G) of this section. All abandoned or revoked 
shares will be redistributed to all other QS permit owners in 
proportion to their QS or IBQ holdings on or about January 1 of the 
following calendar year, based on current ownership records, except 
that no person will be allocated an amount of QS or IBQ that would put 
that person over an accumulation limit.
    (C) Abandonment of QS. QS permit owners that are over the control 
limit for aggregate nonwhiting QS holdings may voluntarily abandon QS 
if they notify NMFS in writing by the applicable deadline specified 
under paragraph (d)(4)(v)(A) or (B) of this section. The written 
abandonment request must include the following information: QS permit 
number, IFQ species, and the QS percentage to be abandoned. Either the 
QS permit owner or an authorized representative of the QS permit owner 
must sign the request. QS permit owners choosing to utilize the 
abandonment option will permanently relinquish to NMFS any right to the 
abandoned QS, and the QS will be redistributed as described under 
paragraph (d)(4)(v)(A)

[[Page 69143]]

or (B) of this section. No compensation will be due for any abandoned 
shares.
    (D) Revocation. NMFS will revoke QS from any QS permit owner who 
exceeds an accumulation limit after the divestiture deadline specified 
under paragraph (d)(4)(v)(A) or (B) of this section. NMFS will follow 
the revocation approach summarized in the following table and explained 
under paragraphs (d)(4)(v)(E) through (G) of this section:

------------------------------------------------------------------------
 If, after the divestiture deadline, a
     QS permit owner exceeds . . .                  Then . . .
------------------------------------------------------------------------
An individual species control limit      NMFS will revoke excess QS at
 (non-widow until reallocation is         the species level.
 complete) in one QS permit.
An individual species control limit      NMFS will revoke QS at the
 (non-widow until reallocation is         species level in proportion to
 complete) across multiple QS permits.    the amount the QS percentage
                                          from each permit contributes
                                          to the total QS percentage
                                          owned.
The control limit for aggregate          NMFS will revoke QS at the
 nonwhiting QS holdings.                  species level in proportion to
                                          the amount of the aggregate
                                          overage divided by the
                                          aggregate total owned. Until
                                          widow reallocation is
                                          complete, the proportion will
                                          be adjusted to hold widow QS
                                          at a constant level while
                                          bringing the aggregate
                                          percentage owned to 2.700%,
                                          using normal rounding rules.
------------------------------------------------------------------------

    (E) Revocation of excess QS or IBQ from one QS permit. In cases 
where a person has not divested to the control limits for individual 
species (non-widow until reallocation is complete) in one QS permit by 
the deadline specified under paragraph (d)(4)(v)(A) or (B) of this 
section, NMFS will revoke excess QS at the species level in order to 
get that person to the limits. NMFS will redistribute the revoked QS 
following the process specified in paragraph (d)(4)(v)(A) or (B) of 
this section. No compensation will be due for any revoked shares.
    (F) Revocation of excess QS or IBQ from multiple QS permits. In 
cases where a person has not divested to the control limits for 
individual species (non-widow QS until reallocation is complete) across 
QS permits by the deadline specified under paragraph (d)(4)(v)(A) or 
(B) of this section, NMFS will revoke QS at the species level in 
proportion to the amount the QS percentage from each permit contributes 
to the total QS percentage owned. NMFS will redistribute the revoked QS 
following the process specified in paragraph (d)(4)(v)(A) or (B) of 
this section. No compensation will be due for any revoked shares.
    (G) Revocation of QS in excess of the control limit for aggregate 
nonwhiting QS holdings. In cases where a QS permit owner has not 
divested to the control limit for aggregate nonwhiting QS holdings by 
the deadline specified under paragraph (d)(4)(v)(A) or (B) of this 
section, NMFS will revoke QS at the species level in proportion to the 
amount of the aggregate overage divided by the aggregate total owned. 
Until widow reallocation is complete and transfer of widow is allowed, 
widow will continue to be included in the aggregate calculation, but 
the proportion will be adjusted to hold widow QS at a constant level 
while bringing the aggregate percentage owned to 2.700%, using normal 
rounding rules. NMFS will redistribute the revoked QS following the 
process in paragraph (d)(4)(v)(A) or (B) of this section. No 
compensation will be due for any revoked shares.
* * * * *
[FR Doc. 2015-28412 Filed 11-4-15; 11:15 am]
 BILLING CODE 3510-22-P