Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Widow Rockfish Reallocation in the Individual Fishing Quota Fishery, 55775-55789 [2017-25349]

Download as PDF Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations integrity and usability of its broadcast ownership data with the concerns raised in the petitions for reconsideration. Licensees of noncommercial educational AM, FM, and television broadcast stations must file FCC Form 323–E every two years. Pursuant to the new filing procedures adopted in the 323 and 323–E Order, Form 323–E shall be filed by December 1 in all oddnumbered years. On September 1, 2017, the Commission’s Media Bureau released an Order in MB Docket No. 07– 294, DA 17–813, postponing the opening of the 2017 biennial filing window for the submission of broadcast ownership reports on FCC Forms 323 and 323–E and extending the 2017 filing deadline. Biennial Ownership Reports shall provide information accurate as of October 1 of the year in which the Report is filed. In addition, Licensees and Permittees of noncommercial educational AM, FM, and television stations must file Form 323–E following the consummation of a transfer of control or an assignment of a noncommercial educational AM, FM, or television station license or construction permit; a Permittee of a new noncommercial educational AM, FM, or television station must file Form 323–E within 30 days after the grant of the construction permit; and a Permittee of a new noncommercial educational AM, FM, or television station must file Form 323–E to update the initial report or to certify the continuing accuracy and completeness of the previously filed report on the date that the Permittee applies for a license to cover the construction permit. In the case of organizational structures that include holding companies or other forms of indirect ownership, a separate Form 323–E must be filed for each entity in the organizational structure that has an attributable interest in the Licensee or Permittee. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 2017–25408 Filed 11–22–17; 8:45 am] sradovich on DSK3GMQ082PROD with RULES BILLING CODE 6712–01–P VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 150902809–7999–02] RIN 0648–BF12 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Widow Rockfish Reallocation in the Individual Fishing Quota Fishery National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: Through this final rule, NMFS announces approval of a regulatory amendment to the Pacific Coast Groundfish Fishery Management Plan (FMP) to reallocate quota shares (QS) of widow rockfish in the Shorebased Individual Fishing Quota (IFQ) Program. In January 2011, NMFS implemented the trawl rationalization program, which includes an IFQ Program for limited entry (LE) trawl participants. At the time of implementation, the widow rockfish stock was overfished and QS were allocated to QS permit holders in the Shorebased IFQ Program (the Program) only to cover widow rockfish bycatch that may be associated with harvest of target species. Now that widow rockfish has been rebuilt, this action reallocates QS to initial recipients to reestablish a target widow rockfish fishery. The reallocation is based on a target species formula that more closely represents the fishing history of permit holders when widow rockfish was a targeted species. This final rule also removes the daily vessel limit for widow rockfish, allows the trading of widow rockfish QS, and sets a deadline for divestiture of excess QS should the reallocation of widow rockfish cause any QS permit holder to exceed an accumulation limit. DATES: This rule is effective December 26, 2017, except for the amendment to § 660.140(d)(1)(ii)(A)(4), which will be effective from December 26, 2017 through December 31, 2018. ADDRESSES: NMFS prepared an environmental assessment (EA), a Regulatory Impact Review (RIR), and a Final Regulatory Flexibility Analysis (FRFA), which is included in the Classification section of this final rule. NMFS also prepared an Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule. Copies of the EA, SUMMARY: PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 55775 RIR, IRFA, FRFA and the Small Entity Compliance Guide are available from Barry A. Thom, 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: Keeley Kent, 206–526–4655, keeley.kent@noaa.gov. SUPPLEMENTARY INFORMATION: This final rule modifies regulations to reallocate widow rockfish QS in the Pacific coast groundfish fishery trawl rationalization program and to allow the transfer of widow rockfish QS. The following sections describe: (1) The original allocation of widow rockfish under the trawl rationalization program, (2) rationale for why the Council selected the final preferred alternative (FPA), and (3) this final rule. NMFS published a proposed rule for this action on June 29, 2016 (81 FR 42295). The comment period on the proposed rule ended on July 29, 2016. NMFS received two comment letters with 12 substantive comments. A summary of these comments and NMFS’s responses are provided in the Comments and Responses section of this preamble. The preamble to the proposed rule provides more background and information on the history of initial quota share allocation, widow rockfish rebuilding, and the Council’s decision to reallocate widow rockfish QS, as well as a description of the reallocation formula, eligibility, and the application process for reallocated widow rockfish QS. The preamble to the proposed rule also describes the timeline for trading widow rockfish QS, the deadline for divestiture should the reallocation of widow rockfish put any QS permit owner over an accumulation limit, and the removal of the daily vessel limit for widow rockfish. Background on Allocations Under the Trawl Rationalization Program The Pacific Coast Groundfish FMP specifies management measures for over 90 different species of rockfish, flatfish, roundfish, sharks, skates, and other species, in Federal waters off the West Coast states. Target species in the E:\FR\FM\24NOR1.SGM 24NOR1 55776 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES commercial fishery include Pacific hake (whiting), sablefish, dover sole, and rockfish, which are harvested by vessels using primarily midwater and bottom trawl gear, but also fish pots and hook and line. The LE trawl fishery is managed under the trawl rationalization program, a catch share program, which was implemented through Amendment 20 to the FMP and corresponding implementing regulations at 50 CFR part 660 in January 2011. Amendment 20 established the trawl rationalization program that consists of: An IFQ program for the shorebased trawl fleet (including Pacific whiting and nonwhiting sectors), and cooperative programs for the at-sea mothership and catcher/processor trawl fleets (Pacific whiting only). Concurrently, Amendment 21 set long-term allocations for the LE trawl sectors of certain groundfish species. In Amendment 20, the Council used different formulas to allocate overfished, non-overfished, and bycatch species. Allocations of QS for each species were made based on each LE permit’s Pacific whiting trips and nonwhiting trips. For the QS allocated for nonwhiting trips, the allocation formula for nonoverfished species (target species) was different from that used for overfished species. For target species (which, at the time did not include widow rockfish) individuals received allocations based on their LE permits’ harvest history of those species during the 1994 through 2003 allocation period. For overfished species, QS was distributed to each recipient to meet expected bycatch based on the recipient’s target species QS allocation (bycatch species). Overfished species QS was allocated in proportion to the amount of target species QS a person received, taking into account area of fishing and likely bycatch rates. Using this approach, many individuals received very low initial allocations of overfished species even though they had significantly depended on targeting the species and had fished within harvest levels permissible at the time. Amendment 20 to the Pacific Coast Groundfish FMP states that when an overfished species is rebuilt, there may be a reallocation of QS in the Shorebased IFQ sector to facilitate the reestablishment of historic fishing opportunities. Widow Rockfish Fishery Widow rockfish was historically an important target species in the groundfish fishery, particularly for midwater trawl and bottom trawl vessels (see Section 1.4.1 of the EA). Vessels using midwater trawl gear take VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 widow rockfish both as bycatch on Pacific whiting targeted trips and as a strategy targeting on pelagic rockfish, in which widow rockfish is caught jointly with yellowtail rockfish. Widow rockfish is also caught along with other species on trips using bottom trawl gear. Catches of widow rockfish peaked in 1981 at 26,938 metric tons (mt) (59,388,124 pounds), then declined as the stock became overfished (see Section 1.4.1 of the EA). Widow rockfish was declared overfished in 2001 and NMFS implemented measures to reduce catch of this and other rockfish species in the 2000s, including Rockfish Conservation Areas (RCAs) and area-based gear restrictions and trip limits. Widow rockfish was still considered overfished in 2011 when the Council and NMFS implemented the trawl rationalization program and thus widow rockfish was allocated using an overfished species formula. Therefore, the QS allocations purposely did not reflect the historical fishing efforts of fishermen who may have targeted widow rockfish before it was declared overfished. However, shortly after implementing the trawl rationalization program in 2011, NMFS and the Council received the results of a new assessment that indicated that widow rockfish was rebuilt. The results of the assessment also indicated that widow rockfish may never have been overfished. Council Rationale for Its Final Preferred Alternative (FPA) In April 2015, the Pacific Fishery Management Council (Council or PFMC) made a final recommendation to NMFS to reallocate the rebuilt widow rockfish stock to the Shorebased IFQ Program using a modified target species formula. The Council selected this alternative (Alternative 5) as its final preferred alternative (FPA) because this alternative best met the purpose and need of the action, which was to implement a policy that allows historical widow rockfish fishery participants to benefit from the renewed fishing opportunities through a direct reallocation rather than having to acquire widow rockfish QS on the open market. NMFS has determined that the Council’s recommendation to reallocate widow rockfish QS to the Shorebased IFQ Program using a modified target species formula is consistent with the Magnuson-Stevens Act (MSA), the Pacific Coast Groundfish FMP, and other applicable law. This determination is based on NMFS’s review of the administrative record, including the Council’s record, and NMFS’s consideration of comments PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 received during the comment period for the proposed rule. After considering the required statutory factors and the goals and objectives of the trawl rationalization program and the Pacific Coast Groundfish FMP, NMFS has determined that the Council’s recommended reallocation formula provides for a fair and equitable allocation to the Shorebased IFQ Program, including between and among the Pacific whiting and nonwhiting participants. The Council recommended to NMFS, and NMFS is approving through this final rule, Alternative 5, a target species formula based on the formula used at the time of initial implementation of the trawl rationalization program. The Alternative 5 reallocation formula holds 10 percent of the total widow rockfish QS aside for the adaptive management program (AMP), divides a portion of the total widow rockfish QS (30 percent) equally among all participants (those owning LE permits in 2011), and allocates a portion of the total widow rockfish QS (60 percent) based on widow rockfish landings history, separately for Pacific whiting trip history (9 percent of the total widow rockfish QS) and nonwhiting trip history (51 percent of the total widow rockfish QS). Pacific whiting trips are defined as those trips where more than 50 percent of the catch is Pacific whiting. The Council and NMFS balanced the use of the control date, investment and dependence in the fishery, potential disruption from reallocation, and the potential impacts on communities and determined that there are fundamental reasons to adopt the Council’s recommendation, also known as the Council’s final preferred alternative (FPA). The Council and NMFS selected Alternative 5 as the FPA due to its ability to quickly and efficiently reestablish the historic target fishery for widow rockfish by allocating to those participants who targeted widow rockfish during the historic target fishery period, represented by the years 1994–2002. The FPA is also most consistent with the directive established by Amendment 20 to the FMP to reestablish historic fishing opportunities when a stock is rebuilt. Amendment 20 directs the Council to consider a direct reallocation for species that were under a rebuilding plan during initial allocation and subsequently have been rebuilt, as a means to more quickly reestablish targeting opportunities for those who had a history of participation in a target fishery. The Council and NMFS interpreted this Amendment 20 E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES provision as a commitment to individuals and communities that historically harvested and invested in the fishery (see Section 2.3 of the EA). As a species becomes rebuilt, reallocating to those individuals would take into account historic fishing investment and dependence on those species. With respect to widow rockfish, there is an additional consideration in that stock assessments now indicate that widow rockfish was potentially never overfished. Had the species been declared rebuilt one management cycle earlier (or never declared overfished), widow rockfish would have been allocated in 2011 based on the Amendment 20 allocation formula for target species. Absent a reallocation of widow rockfish QS, QS permit owners would continue to hold an amount of widow rockfish QS that reflected their bycatch needs rather than their target needs. In order to obtain enough QS to target widow rockfish, those permit owners interested in targeting widow rockfish would then have to purchase widow rockfish QS on the open market. This form of redistribution to enable the reestablishment of a target fishery without reallocation could take a long time and involve high transaction costs. Control Date Alternative 5 maintains the integrity of the control date, November 6, 2003, by not rewarding speculative fishing history that occurred after the control date. As described in detail in NMFS’s final rule on the reconsideration of the initial allocation of Pacific whiting quota (78 FR 18879; March 28, 2013), the Council adopted and announced a control date in 2003 to reduce overcapitalization and end the race for fish. The Council sought to discourage speculative capitalization and discourage effort by putting participants on notice that any fishing history earned beyond 2003 may not count towards a future allocation system. During the development of Amendment 20, many participants commented on how the control date would affect their business decisions. NMFS acknowledges that the control date is not a guarantee that any specific period will count toward initial allocations. However, NMFS believes that recognizing the history and business decisions of those that interpreted the control date as signaling the end of the qualifying period is appropriate and consistent with the purposes of Amendment 20. While no mechanism exists to separate speculative from non-speculative effort following a control date, maintaining the control date does not reward VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 speculation that may have occurred to the detriment of those that honored the control date. Furthermore, as the control date provided adequate notice to those participants that chose to make further capital investments after the fact that those investments may not affect their allocations, it is not inconsistent with the MSA, unfair, or inequitable, to not reward that speculation by not incorporating that history. Fairness and Equity The MSA specifies that initial allocations must be ‘‘fair and equitable,’’ and include consideration of current and historical harvests, employment in the harvesting and processing sectors, investments in and dependence upon the fishery, current and historical participation of fishing communities, the basic cultural and social framework of the fishery, including promoting the sustained participation of small fishing vessels and communities, and procedures to address concerns over excessive geographic concentration and prevent the inequitable concentration of privileges and excessive shares. NMFS finds that the Council’s recommended Alternative 5 reallocation formula is a fair and equitable allocation to the Shorebased IFQ Program. Alternative 5 struck the best balance between achieving the Council’s purpose and need for this action, as defined by Amendment 20, and minimizing disruption to existing QS holders, processors, and communities. The Council and NMFS acknowledged that under widow rockfish reallocation there would be current QS permit owners who would gain or lose widow rockfish QS to varying degrees, depending on the reallocation alternative chosen. The Council considered a range of alternatives, on a spectrum of reallocation including no action and four action alternatives. Under widow rockfish reallocation (the Council’s FPA, Alternative 5), compared to status quo: 63 of 128 eligible QS permits will lose widow rockfish QS, 63 will gain widow rockfish QS, and 2 will hold the same amount of widow rockfish QS. Specifically, Table 4–7 of the EA shows that currently, the maximum allocation of the total widow rockfish QS pool to an individual LE permit holder is 2.11 percent, the minimum allocation is 0.02 percent. Under Alternative 5, the maximum allocation to an individual LE permit holder will be 1.98 percent of the total widow rockfish QS pool and the minimum allocation will be 0.18 percent. For those that will receive more widow rockfish QS, the average increase will be 0.34 percent of the total widow PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 55777 rockfish pool. For those that will receive less widow rockfish QS, the average decrease will be 0.34 percent of the total widow rockfish pool. As described above, all of the eligible permits will, at a minimum, be reallocated 0.177 percent of the total widow rockfish QS from the equal sharing portion of the reallocation formula, plus a portion from their landings history, if they had landings history. Despite the fact that 63 QS permits will lose widow rockfish QS under reallocation, this loss may be mitigated by the substantial increase in the widow rockfish annual catch limits (ACL) that has occurred for 2017 and 2018, which will result in significantly more QP for many permit holders than they have been issued in all prior years since the start of the trawl rationalization program. Now that widow rockfish is no longer managed as a bycatch species under a rebuilding plan, the Shorebased IFQ Program’s widow rockfish allocation has increased from 342.62 mt (755,348 pounds) in 2011, to 11,392.7 mt (25,116,604 pounds) in 2017. In 2018, the widow rockfish allocation to the Shorebased IFQ Program will be 10,661.5 mt (23,504,584 pounds). Consequently, with the reallocation, each QS permit owner eligible for a reallocated widow rockfish QS amount will receive a minimum of 41,602 quota pounds (QPs) in 2018 from the equal share portion of the formula for each LE permit history (0.177 percent). Every QS permit will be allocated more widow rockfish QP in 2018 than in any of the first 6 years of the Shorebased IFQ Program due to the increasing ACL. Current and Historical Harvests The Council’s FPA, Alternative 5, directly incorporates current and historical harvests and strikes a balance between these two sometimes competing factors. The Alternative 5 formula uses historic widow rockfish fishing history to reallocate a portion of the widow rockfish QS to QS holders, and provided the greatest weight to widow rockfish history compared to the other alternatives. This portion of the formula most advantaged those participants with widow rockfish fishing history when widow rockfish was a target fishery. The Alternative 5 formula also acknowledges more recent participation and history by equally allocating a portion of the QS to all QS permit owners eligible for reallocation. This moderates the effects of the formula on recent participants from the use of widow fishing history. Alternative 5, as with all the other alternatives, allocates QS to existing QS permit holders, and E:\FR\FM\24NOR1.SGM 24NOR1 55778 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES not to other classes of participants, such as limited entry permit (LEP) holders, recognizing the investment that these participants made in either having a long history in the fishery or having made an investment by purchasing the history from those that did. These are current participants in the fishery, because widow rockfish QS has not changed hands since the initial allocation in 2011. See Amendment 20 for a more detailed discussion on how the Council decided to allocate to QS permit holders (75 FR 60868; October 1, 2010). Although ultimately not selected, the Council considered alternatives that would have given more weight to recent fishing history and revenues for other groundfish species. It was not possible to use fishing history for the most recent catch of widow rockfish, because widow rockfish catches have been heavily depressed by its overfished status and measures to reduce its catch until only recently, so the Council considered groundfish revenues for 2003–2010. This was an advantage to those that had high total revenues because of other groundfish species, but at the expense of those more dependent on widow rockfish that could not effectively target it during that period. Communities This final rule will have effects on communities, which are described in the preamble to the proposed rule and in the EA and RIR. Section 4.4.3 of the EA notes that the estimated amount of QS redistributed among port communities is 17 percent. However, the EA also notes that due to the low ACL for widow rockfish during the first few years of the trawl rationalization program, community dependence on widow rockfish has been low across Washington, Oregon, and California. Therefore, NMFS does not expect that the geographic redistribution of QS will have a significant impact on communities. Additionally, the impacts of reallocation are not expected to be significant because widow rockfish comprises a small portion of the trawl groundfish fishery, and widow rockfish would be a small portion of the groundfish landings in any particular geographic area. Further, geographic distributions are likely to be driven more by the trading of QPs. While QS may be less fluid, the distribution among communities and implication of the FPA is harder to track because QS owners do not necessarily use their QS/QP in the communities in which they reside. As discussed in Section 4.2 of the EA, over the long term, the reallocation of VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 QS is not expected to substantially affect the distribution of landings relative to status quo. However, there may be some short term variations if those receiving the allocations run their own harvesting or processing operations (and hence are more likely to use the QS in the areas of their own operations). Overall, changes in the distribution of widow rockfish QS among ports as a result of reallocation are small relative to some of the inter-port variations in landings observed to date for the overall groundfish fishery. Investment and Dependence In making its final recommendation, the Council took into consideration the investments of fishery participants and the relative dependence of Pacific whiting and nonwhiting participants, processors, and communities. The Alternative 5 formula strikes a balance between Pacific whiting and nonwhiting participants, because it provides an advantage to neither. Alternative 2a would have provided more advantage to Pacific whiting vessels at the expense of nonwhiting vessels, and Alternative 2b would have had the opposite effect due to the weighting of whiting versus nonwhiting trips. Rather than provide one group of participants an advantage over the other, the Council created and selected, as their FPA, Alternative 5 as the midpoint between the two. The Council also created an equal allocation portion of the QS that provided equal QS to those with and without widow history, and to Pacific whiting and nonwhiting vessels. The Council also considered and incorporated the historic dependence of widow fishermen and the communities in which they reside, by making a portion of the allocation based on widow fishing history. Alternative 3 would have put greater emphasis on revenues when widow was not a target species and reflected the investment of those that were not targeting widow rockfish. This contradicted the Council’s purpose and need and its overall policy, implemented through Amendment 20, of acknowledging the investment of those with fishing history for target species. Alternative 4 would have maintained existing allocations, emphasizing the dependence of those with more QP recently, but would have diluted the benefits of this action and the overall effectiveness of this action at achieving the Council’s objectives. Widow rockfish QS has not been transferable since the time of initial allocation in 2011 (except under U.S. court order), therefore, no investments in widow rockfish QS have occurred yet, other than initial investment in the PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 trawl LE permit through which initial allocations and the reallocation of widow rockfish QS were assigned. The initial allocation of widow rockfish QS was based on the expectation that recipients would be dependent on widow rockfish QS as bycatch to access target species allocations, rather than depend on it for the revenue generated by catching widow rockfish itself. For this reason, there has not been much dependence on widow rockfish QS for targeting needs since 2011; rather the vessels that depend on widow rockfish purchase or trade widow rockfish QP to meet their needs. With rebuilding, businesses have an opportunity to develop an economic reliance on widow rockfish QS for direct revenue (rather than as an input needed to access other species). When converted to ex-vessel revenue equivalents, widow rockfish QS is a relatively minor portion of the QS portfolios currently held by business entities. This rule may affect those vessels that regularly purchase widow rockfish QP for the purposes of directed fishing, by disrupting the existing trade relationships (as discussed in Section 3.3.1(b)(1) of the EA). However, NMFS assumes that these vessels would be able to seek out new trade relationships after the reallocation. Overall employment is not expected to change through widow rockfish reallocation, but may be redistributed among firms, and geographically redistributed among communities. Geographic redistribution effects are expected to be greatest over the short term and diminish with time. The projected geographic reallocations did not vary substantially among reallocation alternatives. Summary The FPA, like all of the action alternatives considered, affects vessels, processors, vessel and processor employment, and communities to varying degrees indirectly through the allocations—except that vessel and processor owners may be directly affected to the degree that they acquired an initial allocation of QS due to their ownership of a trawl LE permit. Because the ACLs of widow rockfish have only recently increased enough to allow targeting, and the FPA would provide each QS permit owners more QP in 2018 than they received in any of the first 6 years of the program, the reallocation of widow rockfish QS is not expected to substantially disrupt recent activities nor is it expected to have significant adverse effects on recent investments. The Council and NMFS considered the moratorium on widow rockfish QS trading as providing a E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES strong signal of the impending reallocation, providing individuals an opportunity to anticipate widow rockfish QS reallocation as part of their recent investment planning. The Council and NMFS considered expected impacts of the FPA on harvesters, processors, industry, investments, and communities, using the most recent data available, as reflected in the EA. The Council and NMFS determined that the FPA struck a balance between impacts to the Pacific whiting and nonwhiting fishery; and between re-establishing historic fisheries and the geographic distribution of impacts among the communities in Washington, Oregon, and California. Specifically, this final rule best reflects how widow rockfish would have been allocated at the start of the program if it had not been managed under a rebuilding plan at that time. This action is part of an overall program designed to ensure that conservation objectives are met and to mitigate some of the distributional effects of those conservation measures. As compared to other action alternatives, the FPA fulfills the Council’s purpose and need to reestablish the historic targeted widow rockfish fishery. Description of This Final Rule Below is a brief description of this final rule. For a more detailed description, please see the preamble of the proposed rule (81 FR 42295; June 29, 2016). This final rule will: (1) Reallocate QS to initial recipients based on a target species formula that will more closely represent the fishing history of permit owners when widow rockfish was a targeted species, (2) allow the trading of widow rockfish quota shares, (3) set a deadline for divestiture in case the reallocation of widow rockfish puts any QS permit owner over an accumulation limit, and (4) remove the daily vessel limit for widow rockfish since it is no longer an overfished species. This final rule will reallocate widow rockfish QS. QS permit owners are only eligible for a reallocation of widow rockfish if they are one of the 128 original QS permit owners who initially received a QS permit in 2011 based on LE trawl permit ownership at that time. For those new QS permits to which NMFS administratively transferred widow rockfish QS based on a U.S. court order or due to the death of a QS holder, NMFS will reallocate widow rockfish QS directly to these new QS permits because the shares were transferred through a legal process to a beneficiary. The 10 shorebased Pacific VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 whiting processors who received initial QS permits with only an initial allocation of Pacific whiting are not eligible to receive reallocated widow rockfish QS. Past landings history associated with each LE trawl permit will accrue to the current QS permit owner who received initial QS for that LE permit, even if the LE trawl permit ownership has changed since 2011. For purposes of the widow rockfish reallocation calculation, NMFS will use landings data from the Pacific States Marine Fisheries Commission’s Pacific Fishery Information Network (PacFIN) database. The proposed rule published on June 29, 2016, put the public on notice that NMFS would freeze the PacFIN dataset to be used in calculating the reallocation of widow rockfish on July 27, 2016. QS permit owners were instructed to contact their state fisheries data staff if they had concerns about the accuracy of their data. NMFS notes that there were no changes to the widow rockfish landings in the database for any QS permit holder’s fishing history. NMFS then extracted a dataset of the PacFIN database on July 27, 2016, and will use that dataset for the reallocation of widow rockfish. As there was a delay between the publication of the proposed rule and the final rule, NMFS reconfirmed with PacFIN that there were no changes to the data extract after the freeze. After determining the new widow rockfish allocations, NMFS will mail prefilled applications and widow rockfish reallocation QS amounts to each eligible QS permit owner (calculated using the formula in this final rule). On the application, the applicant (the QS permit owner) must: (1) Indicate whether or not they accept NMFS’s calculation of the reallocated widow rockfish QS for each LE trawl permit, (2) provide a written description of what part of the reallocation formula requires correction and credible information to support the request for correction if they do not accept the calculation, and (3) sign, date and declare that the information in the application is true, correct and complete. Complete, certified applications must be submitted to the NMFS West Coast Region (see ADDRESSES). NMFS will not accept or review any applications postmarked or received in person after the application deadline, and any QS permit owner who does not submit an application would not be eligible to receive reallocated widow rockfish QS. NMFS will not accept applications by email. NMFS will redistribute the shares from any incomplete or non-submitted applications to all other QS permit PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 55779 owners who are eligible for a reallocation of widow rockfish QS in proportion to their reallocated widow QS amount. Following review of an application, NMFS will issue an initial administrative determination (IAD). In the IAD, NMFS will inform the applicant whether or not their application for reallocated widow rockfish QS was approved. Applicants would have 60 calendar days from the date of the IAD to appeal the decision. If any appeals are received, NMFS will reallocate widow QS amounts in 2018 consistent with all of the IADs and await any action resulting from an appeal until January 1, 2019. This is because the timeline of an appeal would be unknown, and new allocations are most easily implemented at the start of a calendar year. If an application is approved, the QS permit owner will receive a 2018 QS permit showing the new widow rockfish QS amount, and the new QS percentage would show in the associated QS account when updated in 2018. Under this final rule, NMFS has the authority to issue widow rockfish QP for 2018 to QS accounts under one of two processes, depending upon the timing of publication of this final rule. The first process would be that NMFS would deposit QP into accounts on or about January 1, 2018, based on the IAD. Alternatively, widow rockfish QP may be allocated in two steps to QS accounts. Under the two-step process, on or about January 1, 2018, NMFS would deposit QP based on the lesser of the initial allocation under Amendment 20 or the reallocation under this rule to each individual account. Then, after NMFS finalizes the IAD, NMFS would deposit additional QP to the QS account as necessary. An additional effect of implementing the Council’s recommendations, through this final rule, is that after reallocation, some QS permit holders may be required to divest of widow rockfish QS in order to be in compliance with the control limits. Control limits in the Shorebased IFQ Program cap the amount of QS or individual bycatch quota (IBQ) that a person, individually or collectively, may own or control. Amendment 20 and implementing regulations set individual control limits for each of the 30 IFQ species, including widow rockfish, as well as an aggregate limit of 2.7 percent across nonwhiting species (50 CFR 660.140(d)(4)(C)). The individual control limit for widow rockfish is 5.1 percent. NMFS will allow the QS permit owner an adjustment period to hold the excess shares and divest. The E:\FR\FM\24NOR1.SGM 24NOR1 sradovich on DSK3GMQ082PROD with RULES 55780 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations divestiture deadline is November 30 in the year widow rockfish QS becomes transferrable. If NMFS does not receive any appeals on the reallocation, widow QS would become transferrable in early 2018, and any QS permit owner who exceeded the control limit as the result of the reallocation will have until November 30, 2018, to divest of their excess holdings. After the appeal deadline has passed, NMFS will issue a public notice to notify QS permit holders of when trading may begin. If NMFS does receive one or more appeals, widow QS will become transferrable on or about January 1, 2019, and any QS permit owner who exceeded the control limit as the result of the reallocation would have until November 30, 2019, to divest of their excess holdings. QS trading occurs between January 1 through November 30 each year. Trading is halted in the month of December so that NMFS can set QP allocations based on the static year-end amount of QS and mail QS permits that are effective January 1 of the following year. This adjustment period will allow the permit owner to benefit from holding excess QS, and from the sale or gifting of such an excess, but they will be required to divest of their excess QS in a timely manner, consistent with existing regulatory procedures. Through this final rule, NMFS also removes the daily vessel limit for widow rockfish since daily vessel limits were developed with the intent to apply only to overfished species. NMFS will remove the daily vessel limit for widow rockfish only, and will not change widow’s annual vessel limit or the daily or annual vessel limits of any other species. This change will better reflect the status of widow rockfish as rebuilt, and allow fishermen to hold the full annual vessel limit at any time if they chose to do so, in line with every other non-overfished IFQ species. Due to a delay in the development and publication of this final rule, many of the timelines associated with implementing this rulemaking have been updated since the proposed rule. Additionally, other deadlines are dependent on whether or not NMFS receives appeals on the reallocation of widow rockfish. NMFS will provide the affected public an updated list of deadlines in the Small Entity Compliance Guide (see ADDRESSES). Response to Comments The comment period on the proposed rule ended July 29, 2016. NMFS received two comment letters that included 12 substantive comments on the proposed rule, one from a law firm VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 representing a harvester/processor company, and one from a fisherman. Comments from both letters are addressed below. Comment 1: One commenter supports a timely and fair reallocation of widow rockfish, the elimination of the moratorium on widow rockfish QS trading, and the removal of the overfished species daily vessel limit. Response: NMFS agrees with the commenter that the reallocation of widow rockfish should be fair and timely. NMFS also agrees that trading widow rockfish QS is an important aspect of the trawl rationalization program. In some cases the moratorium on widow rockfish QS trading has prevented QS permit owners’ ability to supplement their QS portfolio or retire out of the fishery. NMFS notes that this final rule, consistent with the proposed rule, specifies that any appeals will delay the QS transfer start date for widow rockfish QS in order to prevent trading of an amount that may be adjusted later through appeal. If no appeals are received, widow rockfish QS trading will begin in early 2018, following a public notice from NMFS. As discussed under the description of the final rule, if appeals are received, QS trading will begin January 1, 2019. Last, NMFS agrees that the overfished species daily vessel limit should be removed since widow rockfish is no longer considered an overfished species. Comment 2: Both commenters assert that the reallocation does not adequately account for current harvests of, and present dependence on, widow rockfish. Response: The Council and NMFS took into account current harvests of, and present dependence on, widow rockfish in coming to this final reallocation decision. The widow rockfish reallocation alternatives that the Council considered examined reallocating widow rockfish QS using catch history based on a wide range of years (1994–2010) that went as far back as possible to include historical widow rockfish harvests, given the best available scientific information on the groundfish trawl fleet prior to implementation of Amendment 20. Catch history from 2010 was the most recent considered in the reallocation alternatives the Council considered since it was the last year of catch history before the trawl rationalization program was implemented. The Council did not include years beyond 2010 in the allocation alternatives because the QS and resulting QP held by permit owners reflected bycatch needs instead of target fishery needs. Thus including post-2010 years was not consistent with the objective of the action, which is to PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 facilitate the re-establishment of historic target fishing opportunities. However, the Council and NMFS did consider more recent participation and harvest by using more recent information to assess the impacts of each alternative (in some cases information from 2014, 2015, or 2016, depending on the most recent year available for the relevant data set). The Council considered but rejected from further analysis the alternative that would have based reallocation of QS solely on more recent participation (2003–2010) (Alternative 3) because it did not adequately meet the primary purpose and need for the action, which is to re-establish historic fishing opportunities (see Section 2.3 of the EA). In addition, Alternative 3 would have rewarded catch history after the control date and prior to the initial allocation of QS, potentially adversely impacting the effectiveness of future control dates. While the Council ultimately did not select Alternative 3, components of the FPA do recognize recent participation. Under the FPA, 30 percent of the widow rockfish QS will be divided equally among all the QS accounts held by participants who owned a LE permit in 2011. This provides a benefit to more recent participants. Additionally, using LE permits as the basis for allocation places some weight on investment and dependence by entities that recently entered the fishery just before or after the end of the allocation history period and up until the time of initial allocation in 2011. This equal allocation element ensures that those with LE permits that had stronger participation after 2003 than before receive some widow QS allocation. The equal allocation alone will meet or exceed the bycatch needs of many. Comment 3: One commenter stated that contrary to what is stated in the proposed rule, using the fishing history from 1994 to 2002 is not following the same methodology as was used in the initial allocation because the initial allocation methodology did not use data that was 15 to 23 years in the past. Response: NMFS disagrees. By using the same fishing years (1994 to 2002), NMFS is following the original allocation methodology used in Amendment 20 to the FMP and providing consistency in the catch history used for this reallocation. While the fishing history years are now more dated, using the same range allows the Council and NMFS to preserve the snapshot of the trawl fisheries it created with Amendment 20. Comment 4: One commenter asserted that the control date (November 6, 2003) used in this action is not applicable to E:\FR\FM\24NOR1.SGM 24NOR1 sradovich on DSK3GMQ082PROD with RULES Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations the reallocation of widow rockfish because there was no directed fishery for widow rockfish between 2002 and 2010. Therefore, there is no danger of rewarding speculative effort by using more recent years. Additionally, it’s not reasonable for PFMC to consider reallocating other overfished species using the control date in the future due to the staleness of the control date. Response: NMFS disagrees. First, the control date was determined to be a valid control by the District Court in Pac. Dawn, LLC v. Pritzker, No. C13– 1419 TEH, 2013 WL 6354421 (N.D. Cal. Dec. 5, 2013), which the 9th Circuit affirmed, Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1179 (9th Cir. 2016). Second, the Council considered and rejected using data from 2003 to 2010 for the reallocation because it did not adequately meet the primary purpose and need for the action, which is to reestablish historic fishing opportunities (Section 1.3 of the EA). Additionally, the Council noted, and NMFS agrees, that using landings from 2003 to 2010 would reward catch history after the control date, during a time when the stock was overfished, and prior to the initial allocation of QS, potentially adversely impacting the effectiveness of future control dates. However, NMFS notes that reallocating QS among current QS holders rather than another class of participants does take into account current investment in the fishery (in the form of the investments in LE permits as an asset and the subsequent holding of the QS which devolved from that investment). Additionally, the EA notes in Section 2.3 that the Council stated this reallocation of widow QS was not necessarily a precedent for future reallocations of other currently overfished species. Widow QS trading had been frozen to facilitate reallocation in anticipation that the stock would soon be rebuilt and such an action has not been taken with regard to other overfished species. As noted in the EA in Section 2.3, it is likely that widow will be the only overfished species for which QS can be reallocated based on pre-catch share program historic harvest because the widow QS trading moratorium allows that QS to be tied back to those historic landings through the catch history of the vessel LE permits, which were used as the basis for establishing the initial allocations. This will not be possible for other overfished species since QS for those species has already been subject to trading, and tracking each of those trades across multiple transactions and QS owners for reallocation purposes likely would be unfeasible. VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 Comment 5: One comment asserts that NMFS’s proposal to use two different catch history periods when reallocating widow rockfish is unlawful. This proposal would use the catch history from 1994 to 2003 for all buyback permits and for Pacific whiting landings history, but would drop the 2003 fishing year for nonwhiting landings history. The commenter alleges there is no legitimate explanation for differentiating between Pacific whiting and nonwhiting widow landings history in 2003 or for not including 2003 in the nonwhiting landings history. Response: For the initial allocations of target (non-overfished) species under Amendment 20, the historical landing period was 1994–2003. NMFS and the Council used 2003 because it was when the control date was announced by the Council and NMFS. The EA notes in Section 2.1.2(b) that for the purposes of the widow rockfish reallocation, 2003 was left off the historic fishing period for nonwhiting trips because regulations were implemented in 2002 designed to discourage widow rockfish harvest (67 FR 10489; March 7, 2002). 2002 was the last full year widow rockfish was managed as a ‘‘target species’’ instead of an overfished species. Therefore, excluding 2003 from the historic fishing period was consistent with the intent of allowing historical directed fishery participants to benefit from the renewed fishing opportunities through a direct reallocation. Since only a few vessels made landings in 2003 and because the allocation formula calculates history based on share of the fleet’s total catch, a relatively small amount of widow landed by a single LE permit could constitute a large portion of the fleet total for that year and have a disproportionate effect on the allocation for that LE permit. Therefore, 2003 is not included in the allocation formula for nonwhiting landings history. Comment 6: Both commenters expressed concern that reallocating widow rockfish to current QS permit owners fails to recognize the widow rockfish fishing history associated with the LE permits because several LE permits have changed ownership since 2002. Response: Based on the Council’s action, NMFS will reallocate widow rockfish based on the LE permit and QS permit relationship described above because the LE permit ownership was severed from the QS permit ownership at the time QS permits became effective in 2011. After that time, LE trawl permits could be sold without any effect on the QS holdings, and QS percentages could be transferred without any effect on the LE permit. NMFS believes it is PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 55781 likely that QS permit owners would not have sold their LE trawl permits if they thought they would not receive the reallocated widow rockfish QS, and similarly, that it is likely that any persons who purchased a LE trawl permit did not believe that they would receive any future QS as part of the purchase. Past landings history associated with each LE trawl permit will accrue to the current QS permit owner who received initial QS for that LE permit, even if the LE trawl permit ownership has changed since 2011. For example, if the fictitious company XYZ Fishing owned two LE trawl permits in 2010: Permit A and Permit B, they would have received a QS permit (QS Permit #1) in 2011 with an initial issuance of QS that was based on the history of LE trawl Permits A and B. For the purposes of widow rockfish reallocation, the linkage between LE trawl Permits A and B and QS Permit #1 will remain in place, so that QS Permit #1 will be reallocated widow rockfish QS based on the history from LE trawl Permits A and B, regardless of who owns those LE trawl permits now. If XYZ Fishing sold both LE trawl permits in 2013, and therefore no longer owns them at the time widow rockfish is reallocated, the company would still receive the reallocated widow rockfish QS from LE Permits A and B to QS Permit #1. Comment 7: One commenter stated that the reallocation would reduce his widow rockfish QS holdings, and that he will be forced to lease quota pounds. Response: NMFS acknowledges that 65 of 128 original QS permit owners will receive decreased allocations of widow rockfish QS under the reallocation formula, while 64 of 128 original QS permit owners will receive increased allocations of widow rockfish QS under the reallocation formula. Table 4–7 of the EA shows that currently, the maximum allocation of the total widow rockfish QS pool to an individual LE permit holder is 2.11 percent, the minimum allocation is 0.02 percent. Under Alternative 5, the maximum allocation to an individual LE permit holder will be 1.98 percent of the total widow rockfish QS pool and the minimum allocation will be 0.18 percent. For those that will receive more widow rockfish QS, the average increase will be 0.34 percent of the total widow rockfish pool. For those that will receive less widow rockfish QS, the average decrease will be 0.34 percent of the total widow rockfish pool. Although these changes may affect some permit holders more than others, the ACL and annual Shorebased IFQ Program allocation have increased dramatically now that widow E:\FR\FM\24NOR1.SGM 24NOR1 sradovich on DSK3GMQ082PROD with RULES 55782 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations rockfish has been rebuilt, meaning that the quota pound equivalent of each share is now worth more. For example, a permit owner who holds one percent of widow rockfish QS would have been allocated 7,553 pounds in 2011 and 2,790,730 pounds in 2017. This means that even with a decrease in an individual QS permit owner’s widow rockfish QS under reallocation, the permit owner will still likely be able to meet their bycatch needs since each share is worth more than 350 times in terms of QP than at the time of initial allocation in 2011. NMFS also notes that this final rule will allow the transfer of widow rockfish QS, which has been restricted since the implementation of the trawl rationalization program. The commenter would then be able to purchase widow QS on the open market to meet his needs. Comment 8: One commenter said that the time allotted for QS permit owners to review and revise their widow rockfish history prior to extracting a dataset from the PacFIN database was not sufficient. Response: NMFS disagrees. NMFS provided sufficient notification to QS permit owners to review their widow rockfish history prior to the publication of this final rule. Initially, QS permit owners had the opportunity to review their catch history, including for widow rockfish, when the original allocations for the trawl rationalization program were made in 2011. Specific to this rule, NMFS notified the public that QS permit owners should review, and if necessary revise their widow rockfish history in April 2016 at the Council meeting and again in the proposed rule, published on June 29, 2016 (81 FR 42295). The proposed rule stated a deadline of July 27, 2016, for the data extraction. According to information provided by the States, all data requests were completed within the timeframe provided and NMFS is unaware of any outstanding data issues. There were no requested modifications to landing information. Comment 9: One commenter stated that the proposed rule will force QS permit holders to divest of widow rockfish QS, after NMFS already forced permit holders to divest in 2015. They allege that a second round of divestiture brings duplicative costs and is contrary to National Standards 7 and 8 of the MSA. Response: NMFS agrees that under this final rule, any QS permit holders that exceed an aggregate control rule after the reallocation of widow rockfish QS will be required to divest. However, NMFS notes that under this final rule, VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 permit holders will have several months to divest and QS permit holders may sell their excess widow rockfish QS, which was allocated at no cost to the participant, thereby, allowing the participant to make a profit on the divestiture. Additionally, NMFS sent all eligible QS holders a preliminary notification of their widow rockfish QS reallocation amount when the proposed rule was published (81 FR 42295; June 29, 2016). This has provided QS holders over a year to determine whether they will need to divest or not under this final rule. National Standard 7 of the MSA states that, ‘‘Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.’’ While the divestiture transaction may require some time investment on the part of the QS holder, selling QS that was allocated freely will only serve to provide a profit for the QS holder, thereby minimizing any costs associated. As the commenter noted, QS holders were previously required by Amendment 20 to divest any nonwidow rockfish QS that exceeded an aggregate control rule. Due to the practicalities of the Council process and NMFS rulemaking, NMFS was not able to expedite the divestiture of widow rockfish QS required by this final rule with the divestiture required by Amendment 20 to the FMP. National Standard 8 of the MSA requires that an FMP take into account the importance of fishery resources to fishing communities in order to provide for the sustained participation of such communities and minimize the adverse economic impacts on such communities. The EA explains that participation by vessels and first receivers in the widow rockfish fishery in all major participating areas (Coos Bay to Morro Bay, Astoria-Newport, and Bellingham-Ilwaco) during 2011–2014 was significantly lower than in 1996– 1998 (Section 3.3.3). Overall, the EA notes that some reallocation of wealth and short term redistribution of economic activity among communities may occur under the action, however, any change would be minimal relative to overall community fishery and general economic activity (Section 4.4.3). Comment 10: One comment stated that the proposed reallocation of widow rockfish QS would force fishery participants to divest QS exceeding control limits, including the nonwhiting aggregate control limit of 2.7 percent. The commenter noted its disagreement with the nonwhiting aggregate control limit of 2.7 percent. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 Response: NMFS agrees that once this rule is effective, and widow QS is reallocated, some QS permit holders may be required to divest of some QS in order to comply with the aggregate control limits under Amendment 20 to the FMP. NMFS also notes that this final rule does not modify any of the aggregate control rules included in Amendment 20; therefore, this comment is outside the scope of this action. Comment 11: One commenter alleged that the proposed rule rewards the speculative behavior of people who purchased permits in advance of allocation and subsequent reallocation. Response: NMFS disagrees. This final rule recognizes the investments entities have made by way of purchasing permits in 2010 through the equal allocation portion of the reallocation design. However, there was no information that entities would have had prior to the initial allocation under the Shorebased IFQ Program that widow rockfish would be rebuilt, when it would be rebuilt, and that the Council would select the reallocation alternative included in this final rule. Therefore, NMFS does not believe this action rewards the speculative behavior described by the commenter. Comment 12: One commenter stated that the proposed rule does not address the need for widow rockfish QP as bycatch in the yellowtail rockfish midwater trawl fishery. Response: NMFS disagrees. This final rule will reallocate widow rockfish for the purposes of reestablishing a directed fishery. The main directed fishery for widow rockfish is the midwater trawl fishery, in which widow rockfish and yellowtail rockfish are commonly caught together as directed targets. Additionally, under this final rule, fishery participants will be able to purchase additional widow rockfish QS on the open market as a means to meet their bycatch needs. Changes From the Proposed Rule In the event that the widow rockfish reallocations are not finalized by January 1, 2018, NMFS will have authority, per temporary regulations added at 50 CFR 660.140(d)(1)(ii)(A)(4), to issue widow rockfish QP in two parts, first issuing interim QP to accounts on or about January 1, 2018, followed by the remaining QP, if applicable, after the IAD is finalized. Without this provision, if reallocations were not finalized on or about January 1, 2018, NMFS would have to wait to issue any widow rockfish QP until the IAD is finalized, meaning vessel accounts would have zero widow rockfish QP for some time early in 2018. E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES NMFS changed the deadline for QS permit owners to submit their widow rockfish reallocation applications from September 15, 2016, to 30 days after the final rule publishes, which is the effective date of this rule, December 26, 2017. The proposed rule and this final rule were delayed in publishing, so the September 15, 2016, deadline was no longer feasible. After the application deadline, NMFS will mail initial administrative determinations (IAD) to applicants, and applicants will have 60 days from the time they receive their IAD to appeal. Because the application deadline change pushed the whole timeline back, the IAD appeal deadline will now fall in early 2018, instead of in 2016. Widow rockfish QS cannot be traded until after the IAD appeal deadline since any appeals may affect the amount of widow rockfish QS each QS permit owner was reallocated. If NMFS receives no appeals, widow rockfish QS trading would be allowed after notification from NMFS after the IAD appeal deadline. This is a change from the proposed rule, where NMFS had anticipated that the IAD appeal deadline would fall in 2016, and that if no appeals were received widow rockfish QS trading would be allowed on January 1, 2017. For this final rule, if no appeals are received, widow rockfish QS trading will be allowed in early 2018. If any IAD appeals are received, the start date for widow rockfish QS trading will be on January 1, 2019. Last, NMFS had previously intended to put out a public notice in December 2016 detailing whether any appeals were received, when widow rockfish QS trading would start, and set the abandonment and divestiture deadlines (which are dependent on the date QS trading starts), but because of the date changes described above, NMFS will now publish a public notice detailing the same information after the IAD appeal deadline. Classification Pursuant to sections 304(b)(1)(A) and 305(d) MSA, the NMFS Assistant Administrator has determined that this rule is consistent with the FMP, other provisions of the MSA, and other applicable law. The Council prepared an EA for this action and the NMFS Assistant Administrator concluded in a ‘‘Finding of No Significant Impact’’ that there will be no significant impact on the human environment as a result of this rule. The EA is available on the Council’s Web site at http://www.pcouncil.org/ or on NMFS’s West Coast Groundfish Web site at http://www.westcoast. VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 fisheries.noaa.gov/fisheries/groundfish_ catch_shares/rules_regulations/widow_ rockfish_reallocation.html. The Office of Management and Budget has determined that this action is not significant for purposes of Executive Order 12866. NMFS prepared a final regulatory flexibility analysis (FRFA) under section 603 of the Regulatory Flexibility Act (RFA), which incorporates the initial regulatory flexibility analysis (IRFA). A summary of any significant issues raised by the public comments in response to the IRFA, and NMFS’s responses to those comments, and a summary of the analyses completed to support the action are addressed below. NMFS also prepared an RIR for this action. A copy of the RIR and FRFA are available from NMFS (see ADDRESSES), and per the requirements of 5 U.S.C. 604(a), the text of the FRFA follows: Final Regulatory Flexibility Analysis As applicable, section 604 of the Regulatory Flexibility Act (RFA) requires an agency to prepare a final regulatory flexibility analysis (FRFA) after being required by that section or any other law to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code. The following paragraphs constitute the FRFA for this action. This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of any significant issues raised by the public comments, NMFS’s responses to those comments, and a summary of the analyses completed to support the action. Analytical requirements for the FRFA are described in the RFA, section 604(a)(1) through (6). FRFAs contain: 1. A statement of the need for, and objectives of, the rule; 2. A statement of the significant issues raised by the public comments in response to the IRFA, a statement 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. The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; 4. 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; 5. A description of the projected reporting, recordkeeping, and other PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 55783 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 6. 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 which affect the impact on small entities was rejected. The ‘‘universe’’ of entities to be considered in a FRFA generally includes only those small entities that can reasonably be expected to be directly regulated by the action. If the effects of the rule fall primarily on a distinct segment of the industry, or portion thereof (e.g., user group, gear type, geographic area), that segment will be considered the universe for purposes of this analysis. In preparing a FRFA, an agency may provide either a quantifiable or numerical description of the effects of a rule (and alternatives to the rule), or more general descriptive statements, if quantification is not practicable or reliable. Need for and Objective of This Final Rule In January 2011, NMFS implemented the trawl rationalization program (a catch share program) for the Pacific coast groundfish LE trawl fishery, which includes an individual fishing quota program for LE trawl participants. At the time of implementation, the widow rockfish stock was overfished and quota shares were allocated to quota share permit owners in the individual fishing quota program using an overfished species formula. Now that widow rockfish has been rebuilt, NMFS will reallocate quota shares to initial recipients based on a target species formula that more closely represents the fishing history of permit owners when widow rockfish was a targeted species. Through this final rule NMFS will allow the trading of widow rockfish quota shares, set a deadline for divestiture in case the reallocation of widow rockfish puts any QS permit owner over an accumulation limit, and remove the daily vessel limit for widow rockfish since it is no longer an overfished species. E:\FR\FM\24NOR1.SGM 24NOR1 55784 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations Summary of Significant Issues Raised During Public Comment NMFS published the proposed rule to reallocate widow rockfish on June 29, 2016 (81 FR 42295). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on July 29, 2016. NMFS received two comment letters that included 12 substantive comments on the proposed rule. None of these comments raise issues in response to the IRFA. The Chief Counsel for Advocacy of the SBA did not file any comments on the IRFA or the proposed rule. sradovich on DSK3GMQ082PROD with RULES Number and Description of Directly Regulated Small Entities For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The SBA has established size criteria for all other major industry sectors in the United States, including fish processing businesses. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a fulltime, part-time, temporary, or other basis, at all its affiliated operations worldwide. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. The entities directly regulated by this action are QS permit holders. This rule will affect 128 QS permit owners who have received widow quota shares. When renewing their QS permits, permit owners are asked if they considered themselves small businesses based on the SBA definitions of small businesses provided above. Based on their responses, NMFS estimates that there are 110 small businesses affected by this rule. Recordkeeping, Reporting, and Other Compliance Requirements This rule contains collection-ofinformation requirements subject to the Paperwork Reduction Act (PRA) and VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 which have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648–0620. This final rule will require that widow rockfish QS permit holders submit an application for the widow rockfish reallocation. NMFS estimates the public reporting burden for this collection of information to average one hour per form, including the time for reviewing instructions, reviewing data and calculations for reallocated widow rockfish QS, and completing the form. Description of Significant Alternatives to This Final Rule That Minimize Economic Impacts on Small Entities NMFS does not believe that small businesses as a class of QS holders will be negatively impacted by the proposed reallocation of widow rockfish QS. The reallocation options decrease widow QS holdings for some small businesses while increasing QS holdings for other small businesses, based on historical reliance on widow rockfish as a target species. Despite the fact that 63 QS permits will lose widow rockfish QS under reallocation, this loss may be mitigated by the substantial increase in the widow rockfish ACL that has occurred for 2017 and 2018, which will result in significantly more QP for many permit holders than they have been issued since rationalization. Trading of widow QS should also be beneficial to all small businesses as it gives these businesses the option to buy, sell, or lease their widow QS. Setting the divesture deadline gives any affected entities time to sell off their excess QS. Eliminating the no-longer-needed daily vessel limit for widow rockfish provides more flexibility to small businesses. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the West Coast Regional Office (see ADDRESSES), and the guide will be included in a public notice sent to all members of the groundfish email group. To sign-up for the groundfish email group, click on the ‘‘subscribe’’ PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 link on the following Web site: http:// www.westcoast.fisheries.noaa.gov/ publications/fishery_management/ groundfish/public_notices/recent_ public_notices.html. The guide and this final rule will also be available on the West Coast Region’s Web site (see ADDRESSES) and upon request. 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 202–395–5806. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/ services_programs/prasubs.html. Pursuant to Executive Order 13175, this rule was developed after meaningful collaboration with tribal officials from the area covered by the FMP. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting members of the 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, Indian Fisheries. Dated: November 17, 2017. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is 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: a. Add paragraph (d)(1)(ii)(A)(4); b. Revise paragraphs (d)(3)(ii)(B)(2) and (d)(4)(v); ■ c. Add paragraph (d)(9); and ■ d. Revise paragraph (e)(4)(i) to read as follows: ■ ■ ■ § 660.140 * E:\FR\FM\24NOR1.SGM * Shorebased IFQ Program. * 24NOR1 * * sradovich on DSK3GMQ082PROD with RULES Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations (d) * * * (1) * * * (ii) * * * (A) * * * (4) In 2018, NMFS may make deposits to QS accounts for widow rockfish in two parts. If NMFS elects to issue widow rockfish QP in two parts, on or about January 1, NMFS will deposit interim QP based on the lesser of the initial allocation or the reallocation. After NMFS finalizes the IAD of widow rockfish QS, NMFS will deposit additional QP to the QS account as necessary. * * * * * (3) * * * (ii) * * * (B) * * * (2) Transfer of QS or IBQ between QS accounts. Beginning January 1, 2014, QS permit owners may transfer QS (except for widow rockfish QS) or IBQ to another owner of a QS permit, subject to accumulation limits and approval by NMFS. Once the IAD deadline has been reached and no appeals to the reallocation of widow rockfish have been submitted, or on January 1, 2019, if such an appeal has been submitted, QS permit owners may transfer widow rockfish QS to another owner of a QS permit, subject to accumulation limits and approval by NMFS. NMFS will announce the QS transfer date for widow rockfish after the IAD appeal deadline. QS or IBQ is transferred as a percent, divisible to one-thousandth of a percent (i.e., greater than or equal to 0.001%). QS or IBQ cannot be transferred to a vessel account. Owners of non-renewed QS permits may not transfer QS. QP in QS accounts cannot be transferred between QS accounts. NMFS will allocate QP based on the QS percentages as listed on a QS permit that was renewed during the previous October 1 through November 30 renewal period. QS transfers will be recorded in the QS account but will not become effective for purposes of allocating QPs until the following year. QS or IBQ may not be transferred between December 1 through December 31 each year. Any QS transaction that is pending as of December 1 will be administratively retracted. NMFS will allocate QP for the following year based on the QS percentages as of December 1 of each year. * * * * * (4) * * * (v) Divestiture. Accumulation limits will be calculated by first calculating the aggregate nonwhiting QS limit and then the individual species QS or IBQ control limits. For QS permit owners (including any person who has VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 ownership interest in the owner named on the permit) that are found to exceed the accumulation limits during the reallocation of widow rockfish QS, an adjustment period will be provided during which they will have to completely divest their QS or IBQ in excess of the accumulation limits. 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)(A) or (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 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 for a reason other than the reallocation of widow rockfish, 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 90day 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. (B) Divestiture and redistribution process for the reallocation of widow rockfish. 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 the reallocation of widow PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 55785 rockfish puts any QS permit owner over an accumulation limit, the QS permit owner will have until November 30 of the year widow rockfish becomes transferrable to divest of their excess widow rockfish QS. In the case that a QS permit owner exceeds the control limit for aggregate nonwhiting QS holdings as the result of the reallocation of widow rockfish, the permit owner may abandon QS to NMFS by November 15 of the year widow rockfish becomes transferrable, using the procedure provided under paragraph (d)(4)(v)(C) of this section. NMFS will announce the QS transfer date for widow rockfish, the divestiture deadline, and the abandonment deadline after the widow reallocation IAD appeal deadline. After the widow rockfish reallocation divestiture period, NMFS will revoke all QS and 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) 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: E:\FR\FM\24NOR1.SGM 24NOR1 55786 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations Then An individual species control limit in one QS permit. An individual species control limit across multiple QS permits. The control limit for aggregate nonwhiting QS holdings. sradovich on DSK3GMQ082PROD with RULES If, after the divestiture deadline, a QS permit owner exceeds NMFS will revoke excess QS at the species level. (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 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 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. 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. * * * * * (9) Reallocation of widow rockfish QS. (i) Additional definitions. The following definitions are applicable to paragraph (d)(9) of this section and apply only to terms used for the purposes of reallocation of widow rockfish QS: (A) Nonwhiting trip means a fishing trip where less than 50 percent by weight of all fish reported on the state landing receipt is whiting. (B) PacFIN means the Pacific Fisheries Information Network of the VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 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. Pacific States Marine Fisheries Commission. (C) Relative history means the landings history of a limited entry trawl permit for a species, year, and area subdivision, divided by the total fleet history of the sector for that species, year, and area subdivision, as appropriate. (D) Whiting trip means a fishing trip where greater than or equal to 50 percent by weight of all fish reported on the state landing receipt is whiting. (ii) Eligibility criteria for receiving reallocated widow rockfish QS. Only the owner of an original QS permit (nonshoreside processor) to which QS was initially allocated in 2011 is eligible to receive reallocated widow rockfish QS based on the history of the limited entry trawl permit(s) that accrued to that QS permit, regardless of current limited entry permit ownership. For those new QS permits to which widow rockfish was administratively transferred by NMFS under U.S. court order, NMFS will reallocate widow rockfish QS directly to the new QS permit. Any limited entry trawl permit owners who did not submit an initial application for a QS permit will not be eligible to receive reallocated widow rockfish QS. (iii) Steps for widow rockfish QS reallocation formula. The widow rockfish QS reallocation formula is applied in the following steps: (A) First, for each limited entry trawl permit, NMFS will determine a preliminary QS allocation for nonwhiting trips. (B) Second, for each limited entry trawl permit, NMFS will determine a preliminary QS allocation for whiting trips. (C) Third, for each limited entry trawl permit, NMFS will combine the amounts resulting from paragraphs (d)(9)(iii)(A) and (B) of this section. (D) Fourth, NMFS will reduce the total widow rockfish QS reallocated to QS permit owners by 10 percent as a set aside for AMP. (iv) Reallocation formula for specific widow rockfish QS amounts—(A) Reallocation formula rules. The following rules will be applied to data for the purpose of calculating the initial reallocation of widow rockfish QS: PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 (1) Limited entry trawl permits will be assigned catch history or relative history based on the landing history of the vessel(s) associated with the permit at the time the landings were made. (2) The relevant PacFIN dataset includes species compositions based on port sampled data and applied to data at the vessel level. (3) Only landings of widow rockfish that were caught in the exclusive economic zone or adjacent state waters off Washington, Oregon, and California will be used for calculating the reallocation of widow rockfish QS. (4) History from limited entry trawl permits that have been combined with a limited entry trawl permit that qualified for a C/P endorsement and which has shorebased permit history will not be included in the preliminary QS and IBQ allocation formula, other than in the determination of fleet history used in the calculation of relative history for limited entry trawl permits that do not have a C/P endorsement. (5) History of illegal landings and landings made under nonwhiting EFPs that are in excess of the cumulative limits in place for the non-EFP fishery will not count toward the allocation of QS. (6) The limited entry trawl permit’s landings history includes the landings history of limited entry trawl permits that have been previously combined with that limited entry trawl permit. (7) If two or more limited entry trawl permits have been simultaneously registered to the same vessel, NMFS will split the landing history evenly between all such limited entry trawl permits during the time they were simultaneously registered to the vessel. (8) Unless otherwise noted, the calculation for the reallocation of widow rockfish QS under paragraph (d)(9) will be based on state landing receipts (fish tickets) as recorded in the relevant PacFIN dataset on July 27, 2016. (9) For limited entry trawl permits, landings under provisional ‘‘A’’ permits that did not become ‘‘A’’ permits and ‘‘B’’ permits will not count toward the reallocation of widow rockfish QS, other than in the determination of fleet E:\FR\FM\24NOR1.SGM 24NOR1 sradovich on DSK3GMQ082PROD with RULES Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations history used in the calculation of relative history for permits that do not have a C/P endorsement. (10) For limited entry trawl permits, NMFS will calculate the reallocation of widow rockfish QS separately based on whiting trips and nonwhiting trips, and will weigh each calculation according to a split between whiting trips and nonwhiting trips of 10.833 percent for whiting trips and 89.167 percent for nonwhiting trips, which is a one-time proportion necessary for the reallocation formula. (B) Preliminary widow rockfish QS reallocation for nonwhiting trips. The preliminary reallocation process in paragraph (d)(9)(iii)(A) of this section follows a two-step process, one to allocate a pool of QS equally among all eligible limited entry permits and the other to allocate the remainder of the preliminary QS based on limited entry trawl permit history. Through these two processes, preliminary QS totaling 100 percent will be allocated. In later steps, this will be adjusted and reduced as indicated in paragraph (d)(9)(iii)(C) and (D) to determine the QS allocation. (1) QS to be allocated equally. The pool of QS for equal allocation will be determined using the nonwhiting trip landings history from Federal limited entry groundfish permits that were retired through the Federal buyback program (i.e., buyback program) (68 FR 42613, July 18, 2003). The nonwhiting trip QS pool associated with the buyback permits will be the buyback permit history as a percent of the total fleet history for the 1994 to 2003 nonwhiting trip reallocation period. The calculation will be based on total absolute pounds with no dropped years and no other adjustments. The QS pool associated with the buyback permits will be divided equally among all qualifying limited entry permits. (2) QS to be allocated based on each permit’s history. The pool of QS for allocation based on limited entry trawl permit nonwhiting trip history will be the QS remaining after subtracting out the QS allocated equally. This pool will be allocated to each qualifying limited entry trawl permit based on the permit’s relative nonwhiting trip history from 1994 through 2002, dropping the three lowest years. For each limited entry trawl permit, NMFS will calculate relative history using the following methodology. First, NMFS will sum the permit’s widow rockfish landings on nonwhiting trips for each year in the reallocation period. Second, NMFS will divide each permit’s annual sum by the shoreside limited entry trawl fleet’s annual sum. NMFS will then calculate a total relative history for each permit VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 by adding all relative histories for the permit together and subtracting the three years with the lowest relative history for the permit. The result for each permit will be divided by the aggregate sum of all total relative histories of all qualifying limited entry trawl permits. NMFS will then multiply the result from this calculation by the amount of QS in the pool to be allocated based on each permit’s history. (C) Preliminary widow rockfish QS reallocation for whiting trips. The preliminary reallocation process in paragraph (d)(9)(iii)(B) of this section follows a two-step process, one to allocate a pool of QS equally among all eligible limited entry permits and the other to allocate the remainder of the preliminary QS based on permit history. Through these two processes, preliminary QS totaling 100 percent will be allocated. In later steps, this will be adjusted and reduced as indicated in paragraph (d)(9)(iii)(C) and (D) to determine the QS allocation. (1) QS to be allocated equally. The pool of QS for equal allocation will be determined using whiting trip landings history from Federal limited entry groundfish permits that were retired through the Federal buyback program (i.e., buyback program) (68 FR 42613, July 18, 2003). The whiting trip QS pool associated with the buyback permits will be the buyback permit history as a percent of the total fleet history for the 1994 to 2003 whiting trip reallocation period. The calculation will be based on total absolute pounds with no dropped years and no other adjustments. The QS pool associated with the buyback permits will be divided equally among all qualifying limited entry permits. (2) QS to be allocated based on each permit’s history. The pool of QS for allocation based on each limited entry trawl permit’s whiting trip history will be the QS remaining after subtracting out the QS allocated equally. Widow rockfish QS for this pool will be allocated pro-rata based on each limited entry trawl permit’s whiting QS from whiting trips that was established in 2010 and used to allocate the whiting trip portion of whiting QS at the time of initial implementation in 2011. Pro-rata means a percent that is equal to the percent of whiting QS from whiting trips. (D) QS from limited entry permits calculated separately for nonwhiting trips and whiting trips. NMFS will calculate the portion of widow QS a limited entry trawl permit receives based on nonwhiting trips and whiting trips separately, and will weight each preliminary QS in proportion to the one-time reallocation percentage PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 55787 between whiting trips and nonwhiting trips of 10.833 percent and 89.167 percent, respectively. (1) Nonwhiting trips. To determine the amount of widow QS for nonwhiting trips for each limited entry trawl permit, NMFS will multiply the preliminary QS for the permit from paragraph (d)(9)(iii)(A) of this section by the onetime reallocation percentage of 89.167 percent for nonwhiting trips. (2) Whiting trips. To determine the amount of widow QS for whiting trips for each limited entry trawl permit, NMFS will multiply the preliminary QS for the permit from paragraph (d)(9)(iii)(B) of this section by the onetime reallocation percentage of 10.833 percent for whiting trips. (E) QS for each limited entry trawl permit. For each limited entry trawl permit, NMFS will add the results for the permit from paragraphs (d)(9)(iv)(D)(1) and (D)(2) of this section in order to determine the total QS widow for that permit. (F) Adjustment for AMP set-aside. NMFS will reduce the widow QS reallocated to each permit owner by a proportional amount that is equivalent to a reduction of 10 percent across all widow reallocation recipients’ holdings as a set aside for AMP. (v) Widow rockfish QS reallocation application. Persons may apply for issuance of reallocated widow rockfish QS by completing and submitting a prequalified application. A ‘‘prequalified application’’ is a partially pre-filled application where NMFS has preliminarily determined the landings history for each limited entry trawl permit that qualifies the applicant for a reallocation of widow QS. The application package will include a prequalified application with landings history. The completed application must be either postmarked or handdelivered to NMFS within normal business hours no later than December 26, 2017. If an applicant fails to submit a completed application by the deadline date, they forgo the opportunity to receive reallocated widow rockfish QS and their percentage will be redistributed to other QS permit owners who submitted complete widow rockfish reallocation applications in proportion to their reallocated widow QS amount. (vi) Corrections to the application. If an applicant does not accept NMFS’s calculation in the prequalified application either in part or whole, the applicant must identify in writing to NMFS which parts the applicant believes to be inaccurate, and must provide specific credible information to substantiate any requested corrections. E:\FR\FM\24NOR1.SGM 24NOR1 55788 Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations The completed application and specific credible information must be provided to NMFS in writing by the application deadline. Written communication must either be post-marked or hand-delivered to NMFS within normal business hours no later than December 26, 2017. Requests for corrections may only be granted for the following reasons: (A) Errors in NMFS’s use or application of data, including: (1) Errors in NMFS’s use or application of landings data from PacFIN; (2) Errors in NMFS’s application of the reallocation formula; and (3) Errors in identification of the QS permit owner, permit combinations, or vessel registration as listed in NMFS permit database. (B) [Reserved] (vii) Submission of the application and application deadline—(A) Submission of the application. Submission of the complete, certified application includes, but is not limited to, the following: (1) The applicant is required to sign and date the application and declare that the contents are true, correct and complete. (2) The applicant must certify that they qualify to own reallocated widow rockfish QS. (3) The applicant must indicate they accept NMFS’s calculation of reallocated widow rockfish QS provided in the prequalified application, or provide a written statement and credible information if they do not accept NMFS’s calculation. (4) NMFS may request additional information of the applicant as necessary to make an IAD on reallocated widow rockfish QS. (B) Application deadline. A complete, certified application must be either postmarked or hand-delivered within normal business hours to NMFS, West Coast Region, Permits Office, Bldg. 1, 7600 Sand Point Way NE., Seattle, WA 98115, no later than December 26, 2017. NMFS will not accept or review any applications received or postmarked after the application deadline. There are no hardship exemptions for this deadline. (viii) Initial Administrative Determination (IAD). NMFS will issue an IAD for all complete, certified applications received by the application deadline date. If NMFS approves an application for reallocated widow rockfish QS, the IAD will say so, and the applicant will receive a 2018 QS permit specifying the reallocated amount of widow rockfish QS the applicant has qualified for. If NMFS disapproves or partially disapproves an application, the IAD will provide the reasons. As part of the IAD, NMFS will indicate to the best of its knowledge whether the QS permit owner qualifies for QS or IBQ in amounts that exceed the accumulation limits and are subject to divestiture provisions given at paragraph (d)(4)(v) of this section. If the applicant does not appeal the IAD within 60 calendar days of the date on the IAD, the IAD becomes the final decision of the Regional Administrator acting on behalf of the Secretary of Commerce. (ix) Appeals. For reallocated widow rockfish QS issued under this section, the appeals process and timelines are specified at § 660.25(g), subpart C. For the reallocation of widow rockfish QS, the bases for appeal are described in paragraph (d)(9)(vi) of this section. Items not subject to appeal include, but are not limited to, the accuracy of permit landings data in the relevant PacFIN dataset on July 27, 2016. (e) * * * (4) * * * (i) Vessel limits. For each IFQ species or species group specified in this paragraph, vessel accounts may not have QP or IBQ pounds in excess of the QP vessel limit (annual limit) in any year, and, for species covered by unused QP vessel limits (daily limit), may not have QP or IBQ pounds in excess of the unused QP vessel limit at any time. The QP vessel limit (annual limit) is calculated as all QPs transferred in minus all QPs transferred out of the vessel account. The unused QP vessel limits (daily limit) is calculated as unused available QPs plus any pending outgoing transfer of QPs. QP vessel limit (annual limit) (in percent) sradovich on DSK3GMQ082PROD with RULES Species category Arrowtooth flounder ................................................................................................................................................. Bocaccio S. of 40°10′ N. lat. ................................................................................................................................... Canary rockfish ........................................................................................................................................................ Chilipepper S. of 40°10′ N. lat. ................................................................................................................................ Cowcod S. of 40°10′ N. lat. ..................................................................................................................................... Darkblotched rockfish .............................................................................................................................................. Dover sole ................................................................................................................................................................ English sole ............................................................................................................................................................. Lingcod: N. of 40°10′ N. lat. ............................................................................................................................................ S. of 40°10′ N. lat. ............................................................................................................................................ Longspine thornyhead: N. of 34°27′ N. lat. ............................................................................................................................................ Minor rockfish complex N. of 40°10′ N. lat.: Shelf species .................................................................................................................................................... Slope species ................................................................................................................................................... Minor rockfish complex S. of 40°10′ N. lat.: Shelf species .................................................................................................................................................... Slope species ................................................................................................................................................... Other flatfish complex ....................................................................................................................................... Pacific cod ........................................................................................................................................................ Pacific halibut (IBQ) N. of 40°10′ N. lat. .......................................................................................................... Pacific ocean perch N. of 40°10′ N. lat. ........................................................................................................... Pacific whiting (shoreside) ................................................................................................................................ Petrale sole ....................................................................................................................................................... Sablefish: N. of 36° N. lat. (Monterey north) ..................................................................................................................... S. of 36° N. lat. (Conception area) ................................................................................................................... Shortspine thornyhead: VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\24NOR1.SGM 24NOR1 Unused QP vessel limit (daily limit) (in percent) 20 15.4 10 15 17.7 6.8 3.9 7.5 ........................ 13.2 4.4 ........................ 17.7 4.5 ........................ ........................ 5.3 13.3 ........................ ........................ 9 ........................ 7.5 7.5 ........................ ........................ 13.5 9 15 20 14.4 6 15 4.5 ........................ ........................ ........................ ........................ 5.4 4 ........................ ........................ 4.5 15 ........................ ........................ Federal Register / Vol. 82, No. 225 / Friday, November 24, 2017 / Rules and Regulations QP vessel limit (annual limit) (in percent) Species category N. of 34°27′ N. lat. ............................................................................................................................................ S. of 34°27′ N. lat. ............................................................................................................................................ Splitnose rockfish S. of 40°10′ N. lat. .............................................................................................................. Starry flounder .................................................................................................................................................. Widow rockfish ................................................................................................................................................. Yelloweye rockfish ............................................................................................................................................ Yellowtail rockfish N. of 40°10′ N. lat. .............................................................................................................. Nonwhiting groundfish species ......................................................................................................................... * * * * * [FR Doc. 2017–25349 Filed 11–22–17; 8:45 am] sradovich on DSK3GMQ082PROD with RULES BILLING CODE 3510–22–P VerDate Sep<11>2014 16:12 Nov 22, 2017 Jkt 244001 PO 00000 Frm 00067 Fmt 4700 Sfmt 9990 E:\FR\FM\24NOR1.SGM 24NOR1 9 9 15 20 8.5 11.4 7.5 3.2 55789 Unused QP vessel limit (daily limit) (in percent) ........................ ........................ ........................ ........................ ........................ 5.7 ........................ ........................

Agencies

[Federal Register Volume 82, Number 225 (Friday, November 24, 2017)]
[Rules and Regulations]
[Pages 55775-55789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25349]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 150902809-7999-02]
RIN 0648-BF12


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Widow Rockfish Reallocation 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: Through this final rule, NMFS announces approval of a 
regulatory amendment to the Pacific Coast Groundfish Fishery Management 
Plan (FMP) to reallocate quota shares (QS) of widow rockfish in the 
Shorebased Individual Fishing Quota (IFQ) Program. In January 2011, 
NMFS implemented the trawl rationalization program, which includes an 
IFQ Program for limited entry (LE) trawl participants. At the time of 
implementation, the widow rockfish stock was overfished and QS were 
allocated to QS permit holders in the Shorebased IFQ Program (the 
Program) only to cover widow rockfish bycatch that may be associated 
with harvest of target species. Now that widow rockfish has been 
rebuilt, this action reallocates QS to initial recipients to 
reestablish a target widow rockfish fishery. The reallocation is based 
on a target species formula that more closely represents the fishing 
history of permit holders when widow rockfish was a targeted species. 
This final rule also removes the daily vessel limit for widow rockfish, 
allows the trading of widow rockfish QS, and sets a deadline for 
divestiture of excess QS should the reallocation of widow rockfish 
cause any QS permit holder to exceed an accumulation limit.

DATES: This rule is effective December 26, 2017, except for the 
amendment to Sec.  660.140(d)(1)(ii)(A)(4), which will be effective 
from December 26, 2017 through December 31, 2018.

ADDRESSES: NMFS prepared an environmental assessment (EA), a Regulatory 
Impact Review (RIR), and a Final Regulatory Flexibility Analysis 
(FRFA), which is included in the Classification section of this final 
rule. NMFS also prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for the proposed rule. Copies of the EA, RIR, IRFA, FRFA and the 
Small Entity Compliance Guide are available from Barry A. Thom, 
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: Keeley Kent, 206-526-4655, 
keeley.kent@noaa.gov.

SUPPLEMENTARY INFORMATION: This final rule modifies regulations to 
reallocate widow rockfish QS in the Pacific coast groundfish fishery 
trawl rationalization program and to allow the transfer of widow 
rockfish QS. The following sections describe: (1) The original 
allocation of widow rockfish under the trawl rationalization program, 
(2) rationale for why the Council selected the final preferred 
alternative (FPA), and (3) this final rule.
    NMFS published a proposed rule for this action on June 29, 2016 (81 
FR 42295). The comment period on the proposed rule ended on July 29, 
2016. NMFS received two comment letters with 12 substantive comments. A 
summary of these comments and NMFS's responses are provided in the 
Comments and Responses section of this preamble. The preamble to the 
proposed rule provides more background and information on the history 
of initial quota share allocation, widow rockfish rebuilding, and the 
Council's decision to reallocate widow rockfish QS, as well as a 
description of the reallocation formula, eligibility, and the 
application process for reallocated widow rockfish QS. The preamble to 
the proposed rule also describes the timeline for trading widow 
rockfish QS, the deadline for divestiture should the reallocation of 
widow rockfish put any QS permit owner over an accumulation limit, and 
the removal of the daily vessel limit for widow rockfish.

Background on Allocations Under the Trawl Rationalization Program

    The Pacific Coast Groundfish FMP specifies management measures for 
over 90 different species of rockfish, flatfish, roundfish, sharks, 
skates, and other species, in Federal waters off the West Coast states. 
Target species in the

[[Page 55776]]

commercial fishery include Pacific hake (whiting), sablefish, dover 
sole, and rockfish, which are harvested by vessels using primarily 
midwater and bottom trawl gear, but also fish pots and hook and line. 
The LE trawl fishery is managed under the trawl rationalization 
program, a catch share program, which was implemented through Amendment 
20 to the FMP and corresponding implementing regulations at 50 CFR part 
660 in January 2011. Amendment 20 established the trawl rationalization 
program that consists of: An IFQ program for the shorebased trawl fleet 
(including Pacific whiting and nonwhiting sectors), and cooperative 
programs for the at-sea mothership and catcher/processor trawl fleets 
(Pacific whiting only). Concurrently, Amendment 21 set long-term 
allocations for the LE trawl sectors of certain groundfish species.
    In Amendment 20, the Council used different formulas to allocate 
overfished, non-overfished, and bycatch species. Allocations of QS for 
each species were made based on each LE permit's Pacific whiting trips 
and nonwhiting trips. For the QS allocated for nonwhiting trips, the 
allocation formula for non-overfished species (target species) was 
different from that used for overfished species. For target species 
(which, at the time did not include widow rockfish) individuals 
received allocations based on their LE permits' harvest history of 
those species during the 1994 through 2003 allocation period.
    For overfished species, QS was distributed to each recipient to 
meet expected bycatch based on the recipient's target species QS 
allocation (bycatch species). Overfished species QS was allocated in 
proportion to the amount of target species QS a person received, taking 
into account area of fishing and likely bycatch rates. Using this 
approach, many individuals received very low initial allocations of 
overfished species even though they had significantly depended on 
targeting the species and had fished within harvest levels permissible 
at the time. Amendment 20 to the Pacific Coast Groundfish FMP states 
that when an overfished species is rebuilt, there may be a reallocation 
of QS in the Shorebased IFQ sector to facilitate the reestablishment of 
historic fishing opportunities.

Widow Rockfish Fishery

    Widow rockfish was historically an important target species in the 
groundfish fishery, particularly for midwater trawl and bottom trawl 
vessels (see Section 1.4.1 of the EA). Vessels using midwater trawl 
gear take widow rockfish both as bycatch on Pacific whiting targeted 
trips and as a strategy targeting on pelagic rockfish, in which widow 
rockfish is caught jointly with yellowtail rockfish. Widow rockfish is 
also caught along with other species on trips using bottom trawl gear.
    Catches of widow rockfish peaked in 1981 at 26,938 metric tons (mt) 
(59,388,124 pounds), then declined as the stock became overfished (see 
Section 1.4.1 of the EA). Widow rockfish was declared overfished in 
2001 and NMFS implemented measures to reduce catch of this and other 
rockfish species in the 2000s, including Rockfish Conservation Areas 
(RCAs) and area-based gear restrictions and trip limits. Widow rockfish 
was still considered overfished in 2011 when the Council and NMFS 
implemented the trawl rationalization program and thus widow rockfish 
was allocated using an overfished species formula. Therefore, the QS 
allocations purposely did not reflect the historical fishing efforts of 
fishermen who may have targeted widow rockfish before it was declared 
overfished. However, shortly after implementing the trawl 
rationalization program in 2011, NMFS and the Council received the 
results of a new assessment that indicated that widow rockfish was 
rebuilt. The results of the assessment also indicated that widow 
rockfish may never have been overfished.

Council Rationale for Its Final Preferred Alternative (FPA)

    In April 2015, the Pacific Fishery Management Council (Council or 
PFMC) made a final recommendation to NMFS to reallocate the rebuilt 
widow rockfish stock to the Shorebased IFQ Program using a modified 
target species formula. The Council selected this alternative 
(Alternative 5) as its final preferred alternative (FPA) because this 
alternative best met the purpose and need of the action, which was to 
implement a policy that allows historical widow rockfish fishery 
participants to benefit from the renewed fishing opportunities through 
a direct reallocation rather than having to acquire widow rockfish QS 
on the open market.
    NMFS has determined that the Council's recommendation to reallocate 
widow rockfish QS to the Shorebased IFQ Program using a modified target 
species formula is consistent with the Magnuson-Stevens Act (MSA), the 
Pacific Coast Groundfish FMP, and other applicable law. This 
determination is based on NMFS's review of the administrative record, 
including the Council's record, and NMFS's consideration of comments 
received during the comment period for the proposed rule. After 
considering the required statutory factors and the goals and objectives 
of the trawl rationalization program and the Pacific Coast Groundfish 
FMP, NMFS has determined that the Council's recommended reallocation 
formula provides for a fair and equitable allocation to the Shorebased 
IFQ Program, including between and among the Pacific whiting and 
nonwhiting participants.
    The Council recommended to NMFS, and NMFS is approving through this 
final rule, Alternative 5, a target species formula based on the 
formula used at the time of initial implementation of the trawl 
rationalization program. The Alternative 5 reallocation formula holds 
10 percent of the total widow rockfish QS aside for the adaptive 
management program (AMP), divides a portion of the total widow rockfish 
QS (30 percent) equally among all participants (those owning LE permits 
in 2011), and allocates a portion of the total widow rockfish QS (60 
percent) based on widow rockfish landings history, separately for 
Pacific whiting trip history (9 percent of the total widow rockfish QS) 
and nonwhiting trip history (51 percent of the total widow rockfish 
QS). Pacific whiting trips are defined as those trips where more than 
50 percent of the catch is Pacific whiting.
    The Council and NMFS balanced the use of the control date, 
investment and dependence in the fishery, potential disruption from 
reallocation, and the potential impacts on communities and determined 
that there are fundamental reasons to adopt the Council's 
recommendation, also known as the Council's final preferred alternative 
(FPA). The Council and NMFS selected Alternative 5 as the FPA due to 
its ability to quickly and efficiently reestablish the historic target 
fishery for widow rockfish by allocating to those participants who 
targeted widow rockfish during the historic target fishery period, 
represented by the years 1994-2002. The FPA is also most consistent 
with the directive established by Amendment 20 to the FMP to 
reestablish historic fishing opportunities when a stock is rebuilt.
    Amendment 20 directs the Council to consider a direct reallocation 
for species that were under a rebuilding plan during initial allocation 
and subsequently have been rebuilt, as a means to more quickly 
reestablish targeting opportunities for those who had a history of 
participation in a target fishery. The Council and NMFS interpreted 
this Amendment 20

[[Page 55777]]

provision as a commitment to individuals and communities that 
historically harvested and invested in the fishery (see Section 2.3 of 
the EA). As a species becomes rebuilt, reallocating to those 
individuals would take into account historic fishing investment and 
dependence on those species. With respect to widow rockfish, there is 
an additional consideration in that stock assessments now indicate that 
widow rockfish was potentially never overfished. Had the species been 
declared rebuilt one management cycle earlier (or never declared 
overfished), widow rockfish would have been allocated in 2011 based on 
the Amendment 20 allocation formula for target species.
    Absent a reallocation of widow rockfish QS, QS permit owners would 
continue to hold an amount of widow rockfish QS that reflected their 
bycatch needs rather than their target needs. In order to obtain enough 
QS to target widow rockfish, those permit owners interested in 
targeting widow rockfish would then have to purchase widow rockfish QS 
on the open market. This form of redistribution to enable the 
reestablishment of a target fishery without reallocation could take a 
long time and involve high transaction costs.

Control Date

    Alternative 5 maintains the integrity of the control date, November 
6, 2003, by not rewarding speculative fishing history that occurred 
after the control date. As described in detail in NMFS's final rule on 
the reconsideration of the initial allocation of Pacific whiting quota 
(78 FR 18879; March 28, 2013), the Council adopted and announced a 
control date in 2003 to reduce overcapitalization and end the race for 
fish. The Council sought to discourage speculative capitalization and 
discourage effort by putting participants on notice that any fishing 
history earned beyond 2003 may not count towards a future allocation 
system. During the development of Amendment 20, many participants 
commented on how the control date would affect their business 
decisions. NMFS acknowledges that the control date is not a guarantee 
that any specific period will count toward initial allocations. 
However, NMFS believes that recognizing the history and business 
decisions of those that interpreted the control date as signaling the 
end of the qualifying period is appropriate and consistent with the 
purposes of Amendment 20. While no mechanism exists to separate 
speculative from non-speculative effort following a control date, 
maintaining the control date does not reward speculation that may have 
occurred to the detriment of those that honored the control date. 
Furthermore, as the control date provided adequate notice to those 
participants that chose to make further capital investments after the 
fact that those investments may not affect their allocations, it is not 
inconsistent with the MSA, unfair, or inequitable, to not reward that 
speculation by not incorporating that history.

Fairness and Equity

    The MSA specifies that initial allocations must be ``fair and 
equitable,'' and include consideration of current and historical 
harvests, employment in the harvesting and processing sectors, 
investments in and dependence upon the fishery, current and historical 
participation of fishing communities, the basic cultural and social 
framework of the fishery, including promoting the sustained 
participation of small fishing vessels and communities, and procedures 
to address concerns over excessive geographic concentration and prevent 
the inequitable concentration of privileges and excessive shares. NMFS 
finds that the Council's recommended Alternative 5 reallocation formula 
is a fair and equitable allocation to the Shorebased IFQ Program. 
Alternative 5 struck the best balance between achieving the Council's 
purpose and need for this action, as defined by Amendment 20, and 
minimizing disruption to existing QS holders, processors, and 
communities.
    The Council and NMFS acknowledged that under widow rockfish 
reallocation there would be current QS permit owners who would gain or 
lose widow rockfish QS to varying degrees, depending on the 
reallocation alternative chosen. The Council considered a range of 
alternatives, on a spectrum of reallocation including no action and 
four action alternatives. Under widow rockfish reallocation (the 
Council's FPA, Alternative 5), compared to status quo: 63 of 128 
eligible QS permits will lose widow rockfish QS, 63 will gain widow 
rockfish QS, and 2 will hold the same amount of widow rockfish QS. 
Specifically, Table 4-7 of the EA shows that currently, the maximum 
allocation of the total widow rockfish QS pool to an individual LE 
permit holder is 2.11 percent, the minimum allocation is 0.02 percent. 
Under Alternative 5, the maximum allocation to an individual LE permit 
holder will be 1.98 percent of the total widow rockfish QS pool and the 
minimum allocation will be 0.18 percent. For those that will receive 
more widow rockfish QS, the average increase will be 0.34 percent of 
the total widow rockfish pool. For those that will receive less widow 
rockfish QS, the average decrease will be 0.34 percent of the total 
widow rockfish pool. As described above, all of the eligible permits 
will, at a minimum, be reallocated 0.177 percent of the total widow 
rockfish QS from the equal sharing portion of the reallocation formula, 
plus a portion from their landings history, if they had landings 
history. Despite the fact that 63 QS permits will lose widow rockfish 
QS under reallocation, this loss may be mitigated by the substantial 
increase in the widow rockfish annual catch limits (ACL) that has 
occurred for 2017 and 2018, which will result in significantly more QP 
for many permit holders than they have been issued in all prior years 
since the start of the trawl rationalization program.
    Now that widow rockfish is no longer managed as a bycatch species 
under a rebuilding plan, the Shorebased IFQ Program's widow rockfish 
allocation has increased from 342.62 mt (755,348 pounds) in 2011, to 
11,392.7 mt (25,116,604 pounds) in 2017. In 2018, the widow rockfish 
allocation to the Shorebased IFQ Program will be 10,661.5 mt 
(23,504,584 pounds). Consequently, with the reallocation, each QS 
permit owner eligible for a reallocated widow rockfish QS amount will 
receive a minimum of 41,602 quota pounds (QPs) in 2018 from the equal 
share portion of the formula for each LE permit history (0.177 
percent). Every QS permit will be allocated more widow rockfish QP in 
2018 than in any of the first 6 years of the Shorebased IFQ Program due 
to the increasing ACL.

Current and Historical Harvests

    The Council's FPA, Alternative 5, directly incorporates current and 
historical harvests and strikes a balance between these two sometimes 
competing factors. The Alternative 5 formula uses historic widow 
rockfish fishing history to reallocate a portion of the widow rockfish 
QS to QS holders, and provided the greatest weight to widow rockfish 
history compared to the other alternatives. This portion of the formula 
most advantaged those participants with widow rockfish fishing history 
when widow rockfish was a target fishery.
    The Alternative 5 formula also acknowledges more recent 
participation and history by equally allocating a portion of the QS to 
all QS permit owners eligible for reallocation. This moderates the 
effects of the formula on recent participants from the use of widow 
fishing history. Alternative 5, as with all the other alternatives, 
allocates QS to existing QS permit holders, and

[[Page 55778]]

not to other classes of participants, such as limited entry permit 
(LEP) holders, recognizing the investment that these participants made 
in either having a long history in the fishery or having made an 
investment by purchasing the history from those that did. These are 
current participants in the fishery, because widow rockfish QS has not 
changed hands since the initial allocation in 2011. See Amendment 20 
for a more detailed discussion on how the Council decided to allocate 
to QS permit holders (75 FR 60868; October 1, 2010).
    Although ultimately not selected, the Council considered 
alternatives that would have given more weight to recent fishing 
history and revenues for other groundfish species. It was not possible 
to use fishing history for the most recent catch of widow rockfish, 
because widow rockfish catches have been heavily depressed by its 
overfished status and measures to reduce its catch until only recently, 
so the Council considered groundfish revenues for 2003-2010. This was 
an advantage to those that had high total revenues because of other 
groundfish species, but at the expense of those more dependent on widow 
rockfish that could not effectively target it during that period.

Communities

    This final rule will have effects on communities, which are 
described in the preamble to the proposed rule and in the EA and RIR. 
Section 4.4.3 of the EA notes that the estimated amount of QS 
redistributed among port communities is 17 percent. However, the EA 
also notes that due to the low ACL for widow rockfish during the first 
few years of the trawl rationalization program, community dependence on 
widow rockfish has been low across Washington, Oregon, and California. 
Therefore, NMFS does not expect that the geographic redistribution of 
QS will have a significant impact on communities. Additionally, the 
impacts of reallocation are not expected to be significant because 
widow rockfish comprises a small portion of the trawl groundfish 
fishery, and widow rockfish would be a small portion of the groundfish 
landings in any particular geographic area. Further, geographic 
distributions are likely to be driven more by the trading of QPs. While 
QS may be less fluid, the distribution among communities and 
implication of the FPA is harder to track because QS owners do not 
necessarily use their QS/QP in the communities in which they reside.
    As discussed in Section 4.2 of the EA, over the long term, the 
reallocation of QS is not expected to substantially affect the 
distribution of landings relative to status quo. However, there may be 
some short term variations if those receiving the allocations run their 
own harvesting or processing operations (and hence are more likely to 
use the QS in the areas of their own operations). Overall, changes in 
the distribution of widow rockfish QS among ports as a result of 
reallocation are small relative to some of the inter-port variations in 
landings observed to date for the overall groundfish fishery.

Investment and Dependence

    In making its final recommendation, the Council took into 
consideration the investments of fishery participants and the relative 
dependence of Pacific whiting and nonwhiting participants, processors, 
and communities. The Alternative 5 formula strikes a balance between 
Pacific whiting and nonwhiting participants, because it provides an 
advantage to neither. Alternative 2a would have provided more advantage 
to Pacific whiting vessels at the expense of nonwhiting vessels, and 
Alternative 2b would have had the opposite effect due to the weighting 
of whiting versus nonwhiting trips. Rather than provide one group of 
participants an advantage over the other, the Council created and 
selected, as their FPA, Alternative 5 as the midpoint between the two. 
The Council also created an equal allocation portion of the QS that 
provided equal QS to those with and without widow history, and to 
Pacific whiting and nonwhiting vessels.
    The Council also considered and incorporated the historic 
dependence of widow fishermen and the communities in which they reside, 
by making a portion of the allocation based on widow fishing history. 
Alternative 3 would have put greater emphasis on revenues when widow 
was not a target species and reflected the investment of those that 
were not targeting widow rockfish. This contradicted the Council's 
purpose and need and its overall policy, implemented through Amendment 
20, of acknowledging the investment of those with fishing history for 
target species. Alternative 4 would have maintained existing 
allocations, emphasizing the dependence of those with more QP recently, 
but would have diluted the benefits of this action and the overall 
effectiveness of this action at achieving the Council's objectives.
    Widow rockfish QS has not been transferable since the time of 
initial allocation in 2011 (except under U.S. court order), therefore, 
no investments in widow rockfish QS have occurred yet, other than 
initial investment in the trawl LE permit through which initial 
allocations and the reallocation of widow rockfish QS were assigned. 
The initial allocation of widow rockfish QS was based on the 
expectation that recipients would be dependent on widow rockfish QS as 
bycatch to access target species allocations, rather than depend on it 
for the revenue generated by catching widow rockfish itself. For this 
reason, there has not been much dependence on widow rockfish QS for 
targeting needs since 2011; rather the vessels that depend on widow 
rockfish purchase or trade widow rockfish QP to meet their needs. With 
rebuilding, businesses have an opportunity to develop an economic 
reliance on widow rockfish QS for direct revenue (rather than as an 
input needed to access other species). When converted to ex-vessel 
revenue equivalents, widow rockfish QS is a relatively minor portion of 
the QS portfolios currently held by business entities. This rule may 
affect those vessels that regularly purchase widow rockfish QP for the 
purposes of directed fishing, by disrupting the existing trade 
relationships (as discussed in Section 3.3.1(b)(1) of the EA). However, 
NMFS assumes that these vessels would be able to seek out new trade 
relationships after the reallocation.
    Overall employment is not expected to change through widow rockfish 
reallocation, but may be redistributed among firms, and geographically 
redistributed among communities. Geographic redistribution effects are 
expected to be greatest over the short term and diminish with time. The 
projected geographic reallocations did not vary substantially among 
reallocation alternatives.

Summary

    The FPA, like all of the action alternatives considered, affects 
vessels, processors, vessel and processor employment, and communities 
to varying degrees indirectly through the allocations--except that 
vessel and processor owners may be directly affected to the degree that 
they acquired an initial allocation of QS due to their ownership of a 
trawl LE permit. Because the ACLs of widow rockfish have only recently 
increased enough to allow targeting, and the FPA would provide each QS 
permit owners more QP in 2018 than they received in any of the first 6 
years of the program, the reallocation of widow rockfish QS is not 
expected to substantially disrupt recent activities nor is it expected 
to have significant adverse effects on recent investments. The Council 
and NMFS considered the moratorium on widow rockfish QS trading as 
providing a

[[Page 55779]]

strong signal of the impending reallocation, providing individuals an 
opportunity to anticipate widow rockfish QS reallocation as part of 
their recent investment planning.
    The Council and NMFS considered expected impacts of the FPA on 
harvesters, processors, industry, investments, and communities, using 
the most recent data available, as reflected in the EA. The Council and 
NMFS determined that the FPA struck a balance between impacts to the 
Pacific whiting and nonwhiting fishery; and between re-establishing 
historic fisheries and the geographic distribution of impacts among the 
communities in Washington, Oregon, and California. Specifically, this 
final rule best reflects how widow rockfish would have been allocated 
at the start of the program if it had not been managed under a 
rebuilding plan at that time.
    This action is part of an overall program designed to ensure that 
conservation objectives are met and to mitigate some of the 
distributional effects of those conservation measures. As compared to 
other action alternatives, the FPA fulfills the Council's purpose and 
need to reestablish the historic targeted widow rockfish fishery.

Description of This Final Rule

    Below is a brief description of this final rule. For a more 
detailed description, please see the preamble of the proposed rule (81 
FR 42295; June 29, 2016). This final rule will: (1) Reallocate QS to 
initial recipients based on a target species formula that will more 
closely represent the fishing history of permit owners when widow 
rockfish was a targeted species, (2) allow the trading of widow 
rockfish quota shares, (3) set a deadline for divestiture in case the 
reallocation of widow rockfish puts any QS permit owner over an 
accumulation limit, and (4) remove the daily vessel limit for widow 
rockfish since it is no longer an overfished species.
    This final rule will reallocate widow rockfish QS. QS permit owners 
are only eligible for a reallocation of widow rockfish if they are one 
of the 128 original QS permit owners who initially received a QS permit 
in 2011 based on LE trawl permit ownership at that time. For those new 
QS permits to which NMFS administratively transferred widow rockfish QS 
based on a U.S. court order or due to the death of a QS holder, NMFS 
will reallocate widow rockfish QS directly to these new QS permits 
because the shares were transferred through a legal process to a 
beneficiary. The 10 shorebased Pacific whiting processors who received 
initial QS permits with only an initial allocation of Pacific whiting 
are not eligible to receive reallocated widow rockfish QS. Past 
landings history associated with each LE trawl permit will accrue to 
the current QS permit owner who received initial QS for that LE permit, 
even if the LE trawl permit ownership has changed since 2011.
    For purposes of the widow rockfish reallocation calculation, NMFS 
will use landings data from the Pacific States Marine Fisheries 
Commission's Pacific Fishery Information Network (PacFIN) database. The 
proposed rule published on June 29, 2016, put the public on notice that 
NMFS would freeze the PacFIN dataset to be used in calculating the 
reallocation of widow rockfish on July 27, 2016. QS permit owners were 
instructed to contact their state fisheries data staff if they had 
concerns about the accuracy of their data. NMFS notes that there were 
no changes to the widow rockfish landings in the database for any QS 
permit holder's fishing history. NMFS then extracted a dataset of the 
PacFIN database on July 27, 2016, and will use that dataset for the 
reallocation of widow rockfish. As there was a delay between the 
publication of the proposed rule and the final rule, NMFS reconfirmed 
with PacFIN that there were no changes to the data extract after the 
freeze.
    After determining the new widow rockfish allocations, NMFS will 
mail prefilled applications and widow rockfish reallocation QS amounts 
to each eligible QS permit owner (calculated using the formula in this 
final rule). On the application, the applicant (the QS permit owner) 
must: (1) Indicate whether or not they accept NMFS's calculation of the 
reallocated widow rockfish QS for each LE trawl permit, (2) provide a 
written description of what part of the reallocation formula requires 
correction and credible information to support the request for 
correction if they do not accept the calculation, and (3) sign, date 
and declare that the information in the application is true, correct 
and complete. Complete, certified applications must be submitted to the 
NMFS West Coast Region (see ADDRESSES). NMFS will not accept or review 
any applications postmarked or received in person after the application 
deadline, and any QS permit owner who does not submit an application 
would not be eligible to receive reallocated widow rockfish QS. NMFS 
will not accept applications by email. NMFS will redistribute the 
shares from any incomplete or non-submitted applications to all other 
QS permit owners who are eligible for a reallocation of widow rockfish 
QS in proportion to their reallocated widow QS amount.
    Following review of an application, NMFS will issue an initial 
administrative determination (IAD). In the IAD, NMFS will inform the 
applicant whether or not their application for reallocated widow 
rockfish QS was approved. Applicants would have 60 calendar days from 
the date of the IAD to appeal the decision. If any appeals are 
received, NMFS will reallocate widow QS amounts in 2018 consistent with 
all of the IADs and await any action resulting from an appeal until 
January 1, 2019. This is because the timeline of an appeal would be 
unknown, and new allocations are most easily implemented at the start 
of a calendar year.
    If an application is approved, the QS permit owner will receive a 
2018 QS permit showing the new widow rockfish QS amount, and the new QS 
percentage would show in the associated QS account when updated in 
2018. Under this final rule, NMFS has the authority to issue widow 
rockfish QP for 2018 to QS accounts under one of two processes, 
depending upon the timing of publication of this final rule. The first 
process would be that NMFS would deposit QP into accounts on or about 
January 1, 2018, based on the IAD. Alternatively, widow rockfish QP may 
be allocated in two steps to QS accounts. Under the two-step process, 
on or about January 1, 2018, NMFS would deposit QP based on the lesser 
of the initial allocation under Amendment 20 or the reallocation under 
this rule to each individual account. Then, after NMFS finalizes the 
IAD, NMFS would deposit additional QP to the QS account as necessary.
    An additional effect of implementing the Council's recommendations, 
through this final rule, is that after reallocation, some QS permit 
holders may be required to divest of widow rockfish QS in order to be 
in compliance with the control limits. Control limits in the Shorebased 
IFQ Program cap the amount of QS or individual bycatch quota (IBQ) that 
a person, individually or collectively, may own or control. Amendment 
20 and implementing regulations set individual control limits for each 
of the 30 IFQ species, including widow rockfish, as well as an 
aggregate limit of 2.7 percent across nonwhiting species (50 CFR 
660.140(d)(4)(C)). The individual control limit for widow rockfish is 
5.1 percent.
    NMFS will allow the QS permit owner an adjustment period to hold 
the excess shares and divest. The

[[Page 55780]]

divestiture deadline is November 30 in the year widow rockfish QS 
becomes transferrable. If NMFS does not receive any appeals on the 
reallocation, widow QS would become transferrable in early 2018, and 
any QS permit owner who exceeded the control limit as the result of the 
reallocation will have until November 30, 2018, to divest of their 
excess holdings. After the appeal deadline has passed, NMFS will issue 
a public notice to notify QS permit holders of when trading may begin. 
If NMFS does receive one or more appeals, widow QS will become 
transferrable on or about January 1, 2019, and any QS permit owner who 
exceeded the control limit as the result of the reallocation would have 
until November 30, 2019, to divest of their excess holdings. QS trading 
occurs between January 1 through November 30 each year. Trading is 
halted in the month of December so that NMFS can set QP allocations 
based on the static year-end amount of QS and mail QS permits that are 
effective January 1 of the following year. This adjustment period will 
allow the permit owner to benefit from holding excess QS, and from the 
sale or gifting of such an excess, but they will be required to divest 
of their excess QS in a timely manner, consistent with existing 
regulatory procedures.
    Through this final rule, NMFS also removes the daily vessel limit 
for widow rockfish since daily vessel limits were developed with the 
intent to apply only to overfished species. NMFS will remove the daily 
vessel limit for widow rockfish only, and will not change widow's 
annual vessel limit or the daily or annual vessel limits of any other 
species. This change will better reflect the status of widow rockfish 
as rebuilt, and allow fishermen to hold the full annual vessel limit at 
any time if they chose to do so, in line with every other non-
overfished IFQ species.
    Due to a delay in the development and publication of this final 
rule, many of the timelines associated with implementing this 
rulemaking have been updated since the proposed rule. Additionally, 
other deadlines are dependent on whether or not NMFS receives appeals 
on the reallocation of widow rockfish. NMFS will provide the affected 
public an updated list of deadlines in the Small Entity Compliance 
Guide (see ADDRESSES).

Response to Comments

    The comment period on the proposed rule ended July 29, 2016. NMFS 
received two comment letters that included 12 substantive comments on 
the proposed rule, one from a law firm representing a harvester/
processor company, and one from a fisherman. Comments from both letters 
are addressed below.
    Comment 1: One commenter supports a timely and fair reallocation of 
widow rockfish, the elimination of the moratorium on widow rockfish QS 
trading, and the removal of the overfished species daily vessel limit.
    Response: NMFS agrees with the commenter that the reallocation of 
widow rockfish should be fair and timely. NMFS also agrees that trading 
widow rockfish QS is an important aspect of the trawl rationalization 
program. In some cases the moratorium on widow rockfish QS trading has 
prevented QS permit owners' ability to supplement their QS portfolio or 
retire out of the fishery. NMFS notes that this final rule, consistent 
with the proposed rule, specifies that any appeals will delay the QS 
transfer start date for widow rockfish QS in order to prevent trading 
of an amount that may be adjusted later through appeal. If no appeals 
are received, widow rockfish QS trading will begin in early 2018, 
following a public notice from NMFS. As discussed under the description 
of the final rule, if appeals are received, QS trading will begin 
January 1, 2019. Last, NMFS agrees that the overfished species daily 
vessel limit should be removed since widow rockfish is no longer 
considered an overfished species.
    Comment 2: Both commenters assert that the reallocation does not 
adequately account for current harvests of, and present dependence on, 
widow rockfish.
    Response: The Council and NMFS took into account current harvests 
of, and present dependence on, widow rockfish in coming to this final 
reallocation decision. The widow rockfish reallocation alternatives 
that the Council considered examined reallocating widow rockfish QS 
using catch history based on a wide range of years (1994-2010) that 
went as far back as possible to include historical widow rockfish 
harvests, given the best available scientific information on the 
groundfish trawl fleet prior to implementation of Amendment 20. Catch 
history from 2010 was the most recent considered in the reallocation 
alternatives the Council considered since it was the last year of catch 
history before the trawl rationalization program was implemented. The 
Council did not include years beyond 2010 in the allocation 
alternatives because the QS and resulting QP held by permit owners 
reflected bycatch needs instead of target fishery needs. Thus including 
post-2010 years was not consistent with the objective of the action, 
which is to facilitate the re-establishment of historic target fishing 
opportunities. However, the Council and NMFS did consider more recent 
participation and harvest by using more recent information to assess 
the impacts of each alternative (in some cases information from 2014, 
2015, or 2016, depending on the most recent year available for the 
relevant data set).
    The Council considered but rejected from further analysis the 
alternative that would have based reallocation of QS solely on more 
recent participation (2003-2010) (Alternative 3) because it did not 
adequately meet the primary purpose and need for the action, which is 
to re-establish historic fishing opportunities (see Section 2.3 of the 
EA). In addition, Alternative 3 would have rewarded catch history after 
the control date and prior to the initial allocation of QS, potentially 
adversely impacting the effectiveness of future control dates.
    While the Council ultimately did not select Alternative 3, 
components of the FPA do recognize recent participation. Under the FPA, 
30 percent of the widow rockfish QS will be divided equally among all 
the QS accounts held by participants who owned a LE permit in 2011. 
This provides a benefit to more recent participants. Additionally, 
using LE permits as the basis for allocation places some weight on 
investment and dependence by entities that recently entered the fishery 
just before or after the end of the allocation history period and up 
until the time of initial allocation in 2011. This equal allocation 
element ensures that those with LE permits that had stronger 
participation after 2003 than before receive some widow QS allocation. 
The equal allocation alone will meet or exceed the bycatch needs of 
many.
    Comment 3: One commenter stated that contrary to what is stated in 
the proposed rule, using the fishing history from 1994 to 2002 is not 
following the same methodology as was used in the initial allocation 
because the initial allocation methodology did not use data that was 15 
to 23 years in the past.
    Response: NMFS disagrees. By using the same fishing years (1994 to 
2002), NMFS is following the original allocation methodology used in 
Amendment 20 to the FMP and providing consistency in the catch history 
used for this reallocation. While the fishing history years are now 
more dated, using the same range allows the Council and NMFS to 
preserve the snapshot of the trawl fisheries it created with Amendment 
20.
    Comment 4: One commenter asserted that the control date (November 
6, 2003) used in this action is not applicable to

[[Page 55781]]

the reallocation of widow rockfish because there was no directed 
fishery for widow rockfish between 2002 and 2010. Therefore, there is 
no danger of rewarding speculative effort by using more recent years. 
Additionally, it's not reasonable for PFMC to consider reallocating 
other overfished species using the control date in the future due to 
the staleness of the control date.
    Response: NMFS disagrees. First, the control date was determined to 
be a valid control by the District Court in Pac. Dawn, LLC v. Pritzker, 
No. C13-1419 TEH, 2013 WL 6354421 (N.D. Cal. Dec. 5, 2013), which the 
9th Circuit affirmed, Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1179 
(9th Cir. 2016). Second, the Council considered and rejected using data 
from 2003 to 2010 for the reallocation because it did not adequately 
meet the primary purpose and need for the action, which is to re-
establish historic fishing opportunities (Section 1.3 of the EA). 
Additionally, the Council noted, and NMFS agrees, that using landings 
from 2003 to 2010 would reward catch history after the control date, 
during a time when the stock was overfished, and prior to the initial 
allocation of QS, potentially adversely impacting the effectiveness of 
future control dates. However, NMFS notes that reallocating QS among 
current QS holders rather than another class of participants does take 
into account current investment in the fishery (in the form of the 
investments in LE permits as an asset and the subsequent holding of the 
QS which devolved from that investment).
    Additionally, the EA notes in Section 2.3 that the Council stated 
this reallocation of widow QS was not necessarily a precedent for 
future reallocations of other currently overfished species. Widow QS 
trading had been frozen to facilitate reallocation in anticipation that 
the stock would soon be rebuilt and such an action has not been taken 
with regard to other overfished species. As noted in the EA in Section 
2.3, it is likely that widow will be the only overfished species for 
which QS can be reallocated based on pre-catch share program historic 
harvest because the widow QS trading moratorium allows that QS to be 
tied back to those historic landings through the catch history of the 
vessel LE permits, which were used as the basis for establishing the 
initial allocations. This will not be possible for other overfished 
species since QS for those species has already been subject to trading, 
and tracking each of those trades across multiple transactions and QS 
owners for reallocation purposes likely would be unfeasible.
    Comment 5: One comment asserts that NMFS's proposal to use two 
different catch history periods when reallocating widow rockfish is 
unlawful. This proposal would use the catch history from 1994 to 2003 
for all buyback permits and for Pacific whiting landings history, but 
would drop the 2003 fishing year for nonwhiting landings history. The 
commenter alleges there is no legitimate explanation for 
differentiating between Pacific whiting and nonwhiting widow landings 
history in 2003 or for not including 2003 in the nonwhiting landings 
history.
    Response: For the initial allocations of target (non-overfished) 
species under Amendment 20, the historical landing period was 1994-
2003. NMFS and the Council used 2003 because it was when the control 
date was announced by the Council and NMFS. The EA notes in Section 
2.1.2(b) that for the purposes of the widow rockfish reallocation, 2003 
was left off the historic fishing period for nonwhiting trips because 
regulations were implemented in 2002 designed to discourage widow 
rockfish harvest (67 FR 10489; March 7, 2002). 2002 was the last full 
year widow rockfish was managed as a ``target species'' instead of an 
overfished species. Therefore, excluding 2003 from the historic fishing 
period was consistent with the intent of allowing historical directed 
fishery participants to benefit from the renewed fishing opportunities 
through a direct reallocation. Since only a few vessels made landings 
in 2003 and because the allocation formula calculates history based on 
share of the fleet's total catch, a relatively small amount of widow 
landed by a single LE permit could constitute a large portion of the 
fleet total for that year and have a disproportionate effect on the 
allocation for that LE permit. Therefore, 2003 is not included in the 
allocation formula for nonwhiting landings history.
    Comment 6: Both commenters expressed concern that reallocating 
widow rockfish to current QS permit owners fails to recognize the widow 
rockfish fishing history associated with the LE permits because several 
LE permits have changed ownership since 2002.
    Response: Based on the Council's action, NMFS will reallocate widow 
rockfish based on the LE permit and QS permit relationship described 
above because the LE permit ownership was severed from the QS permit 
ownership at the time QS permits became effective in 2011. After that 
time, LE trawl permits could be sold without any effect on the QS 
holdings, and QS percentages could be transferred without any effect on 
the LE permit. NMFS believes it is likely that QS permit owners would 
not have sold their LE trawl permits if they thought they would not 
receive the reallocated widow rockfish QS, and similarly, that it is 
likely that any persons who purchased a LE trawl permit did not believe 
that they would receive any future QS as part of the purchase.
    Past landings history associated with each LE trawl permit will 
accrue to the current QS permit owner who received initial QS for that 
LE permit, even if the LE trawl permit ownership has changed since 
2011. For example, if the fictitious company XYZ Fishing owned two LE 
trawl permits in 2010: Permit A and Permit B, they would have received 
a QS permit (QS Permit #1) in 2011 with an initial issuance of QS that 
was based on the history of LE trawl Permits A and B. For the purposes 
of widow rockfish reallocation, the linkage between LE trawl Permits A 
and B and QS Permit #1 will remain in place, so that QS Permit #1 will 
be reallocated widow rockfish QS based on the history from LE trawl 
Permits A and B, regardless of who owns those LE trawl permits now. If 
XYZ Fishing sold both LE trawl permits in 2013, and therefore no longer 
owns them at the time widow rockfish is reallocated, the company would 
still receive the reallocated widow rockfish QS from LE Permits A and B 
to QS Permit #1.
    Comment 7: One commenter stated that the reallocation would reduce 
his widow rockfish QS holdings, and that he will be forced to lease 
quota pounds.
    Response: NMFS acknowledges that 65 of 128 original QS permit 
owners will receive decreased allocations of widow rockfish QS under 
the reallocation formula, while 64 of 128 original QS permit owners 
will receive increased allocations of widow rockfish QS under the 
reallocation formula. Table 4-7 of the EA shows that currently, the 
maximum allocation of the total widow rockfish QS pool to an individual 
LE permit holder is 2.11 percent, the minimum allocation is 0.02 
percent. Under Alternative 5, the maximum allocation to an individual 
LE permit holder will be 1.98 percent of the total widow rockfish QS 
pool and the minimum allocation will be 0.18 percent. For those that 
will receive more widow rockfish QS, the average increase will be 0.34 
percent of the total widow rockfish pool. For those that will receive 
less widow rockfish QS, the average decrease will be 0.34 percent of 
the total widow rockfish pool. Although these changes may affect some 
permit holders more than others, the ACL and annual Shorebased IFQ 
Program allocation have increased dramatically now that widow

[[Page 55782]]

rockfish has been rebuilt, meaning that the quota pound equivalent of 
each share is now worth more. For example, a permit owner who holds one 
percent of widow rockfish QS would have been allocated 7,553 pounds in 
2011 and 2,790,730 pounds in 2017. This means that even with a decrease 
in an individual QS permit owner's widow rockfish QS under 
reallocation, the permit owner will still likely be able to meet their 
bycatch needs since each share is worth more than 350 times in terms of 
QP than at the time of initial allocation in 2011.
    NMFS also notes that this final rule will allow the transfer of 
widow rockfish QS, which has been restricted since the implementation 
of the trawl rationalization program. The commenter would then be able 
to purchase widow QS on the open market to meet his needs.
    Comment 8: One commenter said that the time allotted for QS permit 
owners to review and revise their widow rockfish history prior to 
extracting a dataset from the PacFIN database was not sufficient.
    Response: NMFS disagrees. NMFS provided sufficient notification to 
QS permit owners to review their widow rockfish history prior to the 
publication of this final rule. Initially, QS permit owners had the 
opportunity to review their catch history, including for widow 
rockfish, when the original allocations for the trawl rationalization 
program were made in 2011. Specific to this rule, NMFS notified the 
public that QS permit owners should review, and if necessary revise 
their widow rockfish history in April 2016 at the Council meeting and 
again in the proposed rule, published on June 29, 2016 (81 FR 42295). 
The proposed rule stated a deadline of July 27, 2016, for the data 
extraction. According to information provided by the States, all data 
requests were completed within the timeframe provided and NMFS is 
unaware of any outstanding data issues. There were no requested 
modifications to landing information.
    Comment 9: One commenter stated that the proposed rule will force 
QS permit holders to divest of widow rockfish QS, after NMFS already 
forced permit holders to divest in 2015. They allege that a second 
round of divestiture brings duplicative costs and is contrary to 
National Standards 7 and 8 of the MSA.
    Response: NMFS agrees that under this final rule, any QS permit 
holders that exceed an aggregate control rule after the reallocation of 
widow rockfish QS will be required to divest. However, NMFS notes that 
under this final rule, permit holders will have several months to 
divest and QS permit holders may sell their excess widow rockfish QS, 
which was allocated at no cost to the participant, thereby, allowing 
the participant to make a profit on the divestiture. Additionally, NMFS 
sent all eligible QS holders a preliminary notification of their widow 
rockfish QS reallocation amount when the proposed rule was published 
(81 FR 42295; June 29, 2016). This has provided QS holders over a year 
to determine whether they will need to divest or not under this final 
rule.
    National Standard 7 of the MSA states that, ``Conservation and 
management measures shall, where practicable, minimize costs and avoid 
unnecessary duplication.'' While the divestiture transaction may 
require some time investment on the part of the QS holder, selling QS 
that was allocated freely will only serve to provide a profit for the 
QS holder, thereby minimizing any costs associated. As the commenter 
noted, QS holders were previously required by Amendment 20 to divest 
any non-widow rockfish QS that exceeded an aggregate control rule. Due 
to the practicalities of the Council process and NMFS rulemaking, NMFS 
was not able to expedite the divestiture of widow rockfish QS required 
by this final rule with the divestiture required by Amendment 20 to the 
FMP.
    National Standard 8 of the MSA requires that an FMP take into 
account the importance of fishery resources to fishing communities in 
order to provide for the sustained participation of such communities 
and minimize the adverse economic impacts on such communities. The EA 
explains that participation by vessels and first receivers in the widow 
rockfish fishery in all major participating areas (Coos Bay to Morro 
Bay, Astoria-Newport, and Bellingham-Ilwaco) during 2011-2014 was 
significantly lower than in 1996-1998 (Section 3.3.3). Overall, the EA 
notes that some reallocation of wealth and short term redistribution of 
economic activity among communities may occur under the action, 
however, any change would be minimal relative to overall community 
fishery and general economic activity (Section 4.4.3).
    Comment 10: One comment stated that the proposed reallocation of 
widow rockfish QS would force fishery participants to divest QS 
exceeding control limits, including the nonwhiting aggregate control 
limit of 2.7 percent. The commenter noted its disagreement with the 
nonwhiting aggregate control limit of 2.7 percent.
    Response: NMFS agrees that once this rule is effective, and widow 
QS is reallocated, some QS permit holders may be required to divest of 
some QS in order to comply with the aggregate control limits under 
Amendment 20 to the FMP. NMFS also notes that this final rule does not 
modify any of the aggregate control rules included in Amendment 20; 
therefore, this comment is outside the scope of this action.
    Comment 11: One commenter alleged that the proposed rule rewards 
the speculative behavior of people who purchased permits in advance of 
allocation and subsequent reallocation.
    Response: NMFS disagrees. This final rule recognizes the 
investments entities have made by way of purchasing permits in 2010 
through the equal allocation portion of the reallocation design. 
However, there was no information that entities would have had prior to 
the initial allocation under the Shorebased IFQ Program that widow 
rockfish would be rebuilt, when it would be rebuilt, and that the 
Council would select the reallocation alternative included in this 
final rule. Therefore, NMFS does not believe this action rewards the 
speculative behavior described by the commenter.
    Comment 12: One commenter stated that the proposed rule does not 
address the need for widow rockfish QP as bycatch in the yellowtail 
rockfish midwater trawl fishery.
    Response: NMFS disagrees. This final rule will reallocate widow 
rockfish for the purposes of reestablishing a directed fishery. The 
main directed fishery for widow rockfish is the midwater trawl fishery, 
in which widow rockfish and yellowtail rockfish are commonly caught 
together as directed targets. Additionally, under this final rule, 
fishery participants will be able to purchase additional widow rockfish 
QS on the open market as a means to meet their bycatch needs.

Changes From the Proposed Rule

    In the event that the widow rockfish reallocations are not 
finalized by January 1, 2018, NMFS will have authority, per temporary 
regulations added at 50 CFR 660.140(d)(1)(ii)(A)(4), to issue widow 
rockfish QP in two parts, first issuing interim QP to accounts on or 
about January 1, 2018, followed by the remaining QP, if applicable, 
after the IAD is finalized. Without this provision, if reallocations 
were not finalized on or about January 1, 2018, NMFS would have to wait 
to issue any widow rockfish QP until the IAD is finalized, meaning 
vessel accounts would have zero widow rockfish QP for some time early 
in 2018.

[[Page 55783]]

    NMFS changed the deadline for QS permit owners to submit their 
widow rockfish reallocation applications from September 15, 2016, to 30 
days after the final rule publishes, which is the effective date of 
this rule, December 26, 2017. The proposed rule and this final rule 
were delayed in publishing, so the September 15, 2016, deadline was no 
longer feasible.
    After the application deadline, NMFS will mail initial 
administrative determinations (IAD) to applicants, and applicants will 
have 60 days from the time they receive their IAD to appeal. Because 
the application deadline change pushed the whole timeline back, the IAD 
appeal deadline will now fall in early 2018, instead of in 2016. Widow 
rockfish QS cannot be traded until after the IAD appeal deadline since 
any appeals may affect the amount of widow rockfish QS each QS permit 
owner was reallocated. If NMFS receives no appeals, widow rockfish QS 
trading would be allowed after notification from NMFS after the IAD 
appeal deadline. This is a change from the proposed rule, where NMFS 
had anticipated that the IAD appeal deadline would fall in 2016, and 
that if no appeals were received widow rockfish QS trading would be 
allowed on January 1, 2017. For this final rule, if no appeals are 
received, widow rockfish QS trading will be allowed in early 2018. If 
any IAD appeals are received, the start date for widow rockfish QS 
trading will be on January 1, 2019.
    Last, NMFS had previously intended to put out a public notice in 
December 2016 detailing whether any appeals were received, when widow 
rockfish QS trading would start, and set the abandonment and 
divestiture deadlines (which are dependent on the date QS trading 
starts), but because of the date changes described above, NMFS will now 
publish a public notice detailing the same information after the IAD 
appeal deadline.

Classification

    Pursuant to sections 304(b)(1)(A) and 305(d) MSA, the NMFS 
Assistant Administrator has determined that this rule is consistent 
with the FMP, other provisions of the MSA, and other applicable law.
    The Council prepared an EA for this action and the NMFS Assistant 
Administrator concluded in a ``Finding of No Significant Impact'' that 
there will be no significant impact on the human environment as a 
result of this rule. The EA is available on the Council's Web site at 
http://www.pcouncil.org/ or on NMFS's West Coast Groundfish Web site at 
http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish_catch_shares/rules_regulations/widow_rockfish_reallocation.html.
    The Office of Management and Budget has determined that this action 
is not significant for purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) under 
section 603 of the Regulatory Flexibility Act (RFA), which incorporates 
the initial regulatory flexibility analysis (IRFA). A summary of any 
significant issues raised by the public comments in response to the 
IRFA, and NMFS's responses to those comments, and a summary of the 
analyses completed to support the action are addressed below. NMFS also 
prepared an RIR for this action. A copy of the RIR and FRFA are 
available from NMFS (see ADDRESSES), and per the requirements of 5 
U.S.C. 604(a), the text of the FRFA follows:

Final Regulatory Flexibility Analysis

    As applicable, section 604 of the Regulatory Flexibility Act (RFA) 
requires an agency to prepare a final regulatory flexibility analysis 
(FRFA) after being required by that section or any other law to publish 
a general notice of proposed rulemaking and when an agency promulgates 
a final rule under section 553 of Title 5 of the U.S. Code. The 
following paragraphs constitute the FRFA for this action.
    This FRFA incorporates the Initial Regulatory Flexibility Analysis 
(IRFA), a summary of any significant issues raised by the public 
comments, NMFS's responses to those comments, and a summary of the 
analyses completed to support the action. Analytical requirements for 
the FRFA are described in the RFA, section 604(a)(1) through (6). FRFAs 
contain:
    1. A statement of the need for, and objectives of, the rule;
    2. A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement 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. The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
response to the proposed rule, and a detailed statement of any change 
made to the proposed rule in the final rule as a result of the 
comments;
    4. 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;
    5. 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
    6. 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 which affect the 
impact on small entities was rejected.
    The ``universe'' of entities to be considered in a FRFA generally 
includes only those small entities that can reasonably be expected to 
be directly regulated by the action. If the effects of the rule fall 
primarily on a distinct segment of the industry, or portion thereof 
(e.g., user group, gear type, geographic area), that segment will be 
considered the universe for purposes of this analysis.
    In preparing a FRFA, an agency may provide either a quantifiable or 
numerical description of the effects of a rule (and alternatives to the 
rule), or more general descriptive statements, if quantification is not 
practicable or reliable.

Need for and Objective of This Final Rule

    In January 2011, NMFS implemented the trawl rationalization program 
(a catch share program) for the Pacific coast groundfish LE trawl 
fishery, which includes an individual fishing quota program for LE 
trawl participants. At the time of implementation, the widow rockfish 
stock was overfished and quota shares were allocated to quota share 
permit owners in the individual fishing quota program using an 
overfished species formula. Now that widow rockfish has been rebuilt, 
NMFS will reallocate quota shares to initial recipients based on a 
target species formula that more closely represents the fishing history 
of permit owners when widow rockfish was a targeted species. Through 
this final rule NMFS will allow the trading of widow rockfish quota 
shares, set a deadline for divestiture in case the reallocation of 
widow rockfish puts any QS permit owner over an accumulation limit, and 
remove the daily vessel limit for widow rockfish since it is no longer 
an overfished species.

[[Page 55784]]

Summary of Significant Issues Raised During Public Comment

    NMFS published the proposed rule to reallocate widow rockfish on 
June 29, 2016 (81 FR 42295). An IRFA was prepared and summarized in the 
Classification section of the preamble to the proposed rule. The 
comment period on the proposed rule ended on July 29, 2016. NMFS 
received two comment letters that included 12 substantive comments on 
the proposed rule. None of these comments raise issues in response to 
the IRFA. The Chief Counsel for Advocacy of the SBA did not file any 
comments on the IRFA or the proposed rule.

Number and Description of Directly Regulated Small Entities

    For RFA purposes only, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
engaged in commercial fishing (NAICS code 11411) is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $11 million for all its 
affiliated operations worldwide.
    The SBA has established size criteria for all other major industry 
sectors in the United States, including fish processing businesses. A 
seafood processor is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 750 or 
fewer persons on a full-time, part-time, temporary, or other basis, at 
all its affiliated operations worldwide. A wholesale business servicing 
the fishing industry is a small business if it employs 100 or fewer 
persons on a full-time, part-time, temporary, or other basis, at all 
its affiliated operations worldwide.
    The entities directly regulated by this action are QS permit 
holders. This rule will affect 128 QS permit owners who have received 
widow quota shares. When renewing their QS permits, permit owners are 
asked if they considered themselves small businesses based on the SBA 
definitions of small businesses provided above. Based on their 
responses, NMFS estimates that there are 110 small businesses affected 
by this rule.

Recordkeeping, Reporting, and Other Compliance Requirements

    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
the Office of Management and Budget (OMB) under OMB Control Number 
0648-0620. This final rule will require that widow rockfish QS permit 
holders submit an application for the widow rockfish reallocation. NMFS 
estimates the public reporting burden for this collection of 
information to average one hour per form, including the time for 
reviewing instructions, reviewing data and calculations for reallocated 
widow rockfish QS, and completing the form.

Description of Significant Alternatives to This Final Rule That 
Minimize Economic Impacts on Small Entities

    NMFS does not believe that small businesses as a class of QS 
holders will be negatively impacted by the proposed reallocation of 
widow rockfish QS. The reallocation options decrease widow QS holdings 
for some small businesses while increasing QS holdings for other small 
businesses, based on historical reliance on widow rockfish as a target 
species. Despite the fact that 63 QS permits will lose widow rockfish 
QS under reallocation, this loss may be mitigated by the substantial 
increase in the widow rockfish ACL that has occurred for 2017 and 2018, 
which will result in significantly more QP for many permit holders than 
they have been issued since rationalization. Trading of widow QS should 
also be beneficial to all small businesses as it gives these businesses 
the option to buy, sell, or lease their widow QS. Setting the divesture 
deadline gives any affected entities time to sell off their excess QS. 
Eliminating the no-longer-needed daily vessel limit for widow rockfish 
provides more flexibility to small businesses.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a final regulatory flexibility 
analysis, the agency shall publish one or more guides to assist small 
entities in complying with the rule, and shall designate such 
publications as ``small entity compliance guides.'' The agency shall 
explain the actions a small entity is required to take to comply with a 
rule or group of rules. As part of this rulemaking process, a small 
entity compliance guide (the guide) was prepared. Copies of this final 
rule are available from the West Coast Regional Office (see ADDRESSES), 
and the guide will be included in a public notice sent to all members 
of the groundfish email group. To sign-up for the groundfish email 
group, click on the ``subscribe'' link on the following Web site: 
http://www.westcoast.fisheries.noaa.gov/publications/fishery_management/groundfish/public_notices/recent_public_notices.html. The guide and this final rule will also be 
available on the West Coast Region's Web site (see ADDRESSES) and upon 
request.
    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 202-395-5806.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number. All currently approved NOAA 
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
    Pursuant to Executive Order 13175, this rule was developed after 
meaningful collaboration with tribal officials from the area covered by 
the FMP. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting 
members of the 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, Indian Fisheries.

    Dated: November 17, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 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:
0
a. Add paragraph (d)(1)(ii)(A)(4);
0
b. Revise paragraphs (d)(3)(ii)(B)(2) and (d)(4)(v);
0
c. Add paragraph (d)(9); and
0
d. Revise paragraph (e)(4)(i) to read as follows:


Sec.  660.140  Shorebased IFQ Program.

* * * * *

[[Page 55785]]

    (d) * * *
    (1) * * *
    (ii) * * *
    (A) * * *
    (4) In 2018, NMFS may make deposits to QS accounts for widow 
rockfish in two parts. If NMFS elects to issue widow rockfish QP in two 
parts, on or about January 1, NMFS will deposit interim QP based on the 
lesser of the initial allocation or the reallocation. After NMFS 
finalizes the IAD of widow rockfish QS, NMFS will deposit additional QP 
to the QS account as necessary.
* * * * *
    (3) * * *
    (ii) * * *
    (B) * * *
    (2) Transfer of QS or IBQ between QS accounts. Beginning January 1, 
2014, QS permit owners may transfer QS (except for widow rockfish QS) 
or IBQ to another owner of a QS permit, subject to accumulation limits 
and approval by NMFS. Once the IAD deadline has been reached and no 
appeals to the reallocation of widow rockfish have been submitted, or 
on January 1, 2019, if such an appeal has been submitted, QS permit 
owners may transfer widow rockfish QS to another owner of a QS permit, 
subject to accumulation limits and approval by NMFS. NMFS will announce 
the QS transfer date for widow rockfish after the IAD appeal deadline. 
QS or IBQ is transferred as a percent, divisible to one-thousandth of a 
percent (i.e., greater than or equal to 0.001%). QS or IBQ cannot be 
transferred to a vessel account. Owners of non-renewed QS permits may 
not transfer QS. QP in QS accounts cannot be transferred between QS 
accounts. NMFS will allocate QP based on the QS percentages as listed 
on a QS permit that was renewed during the previous October 1 through 
November 30 renewal period. QS transfers will be recorded in the QS 
account but will not become effective for purposes of allocating QPs 
until the following year. QS or IBQ may not be transferred between 
December 1 through December 31 each year. Any QS transaction that is 
pending as of December 1 will be administratively retracted. NMFS will 
allocate QP for the following year based on the QS percentages as of 
December 1 of each year.
* * * * *
    (4) * * *
    (v) Divestiture. Accumulation limits will be calculated by first 
calculating the aggregate nonwhiting 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 
reallocation of widow rockfish QS, an adjustment period will be 
provided during which they will have to completely divest their QS or 
IBQ in excess of the accumulation limits. 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)(A) 
or (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 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 for a 
reason other than the reallocation of widow rockfish, 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.
    (B) Divestiture and redistribution process for the reallocation of 
widow rockfish. 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 the reallocation of widow 
rockfish puts any QS permit owner over an accumulation limit, the QS 
permit owner will have until November 30 of the year widow rockfish 
becomes transferrable to divest of their excess widow rockfish QS. In 
the case that a QS permit owner exceeds the control limit for aggregate 
nonwhiting QS holdings as the result of the reallocation of widow 
rockfish, the permit owner may abandon QS to NMFS by November 15 of the 
year widow rockfish becomes transferrable, using the procedure provided 
under paragraph (d)(4)(v)(C) of this section. NMFS will announce the QS 
transfer date for widow rockfish, the divestiture deadline, and the 
abandonment deadline after the widow reallocation IAD appeal deadline. 
After the widow rockfish reallocation divestiture period, NMFS will 
revoke all QS and 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) 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:

[[Page 55786]]



------------------------------------------------------------------------
     If, after the divestiture
    deadline, a QS permit owner                     Then
              exceeds
------------------------------------------------------------------------
An individual species control       NMFS will revoke excess QS at the
 limit in one QS permit.             species level.
An individual species control       NMFS will revoke QS at the species
 limit across multiple QS permits.   level in proportion to 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 species
 nonwhiting QS holdings.             level in proportion to the amount
                                     of the aggregate overage divided by
                                     the aggregate total owned.
------------------------------------------------------------------------

    (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 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 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. 
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.
* * * * *
    (9) Reallocation of widow rockfish QS. (i) Additional definitions. 
The following definitions are applicable to paragraph (d)(9) of this 
section and apply only to terms used for the purposes of reallocation 
of widow rockfish QS:
    (A) Nonwhiting trip means a fishing trip where less than 50 percent 
by weight of all fish reported on the state landing receipt is whiting.
    (B) PacFIN means the Pacific Fisheries Information Network of the 
Pacific States Marine Fisheries Commission.
    (C) Relative history means the landings history of a limited entry 
trawl permit for a species, year, and area subdivision, divided by the 
total fleet history of the sector for that species, year, and area 
subdivision, as appropriate.
    (D) Whiting trip means a fishing trip where greater than or equal 
to 50 percent by weight of all fish reported on the state landing 
receipt is whiting.
    (ii) Eligibility criteria for receiving reallocated widow rockfish 
QS. Only the owner of an original QS permit (non-shoreside processor) 
to which QS was initially allocated in 2011 is eligible to receive 
reallocated widow rockfish QS based on the history of the limited entry 
trawl permit(s) that accrued to that QS permit, regardless of current 
limited entry permit ownership. For those new QS permits to which widow 
rockfish was administratively transferred by NMFS under U.S. court 
order, NMFS will reallocate widow rockfish QS directly to the new QS 
permit. Any limited entry trawl permit owners who did not submit an 
initial application for a QS permit will not be eligible to receive 
reallocated widow rockfish QS.
    (iii) Steps for widow rockfish QS reallocation formula. The widow 
rockfish QS reallocation formula is applied in the following steps:
    (A) First, for each limited entry trawl permit, NMFS will determine 
a preliminary QS allocation for nonwhiting trips.
    (B) Second, for each limited entry trawl permit, NMFS will 
determine a preliminary QS allocation for whiting trips.
    (C) Third, for each limited entry trawl permit, NMFS will combine 
the amounts resulting from paragraphs (d)(9)(iii)(A) and (B) of this 
section.
    (D) Fourth, NMFS will reduce the total widow rockfish QS 
reallocated to QS permit owners by 10 percent as a set aside for AMP.
    (iv) Reallocation formula for specific widow rockfish QS amounts--
(A) Reallocation formula rules. The following rules will be applied to 
data for the purpose of calculating the initial reallocation of widow 
rockfish QS:
    (1) Limited entry trawl permits will be assigned catch history or 
relative history based on the landing history of the vessel(s) 
associated with the permit at the time the landings were made.
    (2) The relevant PacFIN dataset includes species compositions based 
on port sampled data and applied to data at the vessel level.
    (3) Only landings of widow rockfish that were caught in the 
exclusive economic zone or adjacent state waters off Washington, 
Oregon, and California will be used for calculating the reallocation of 
widow rockfish QS.
    (4) History from limited entry trawl permits that have been 
combined with a limited entry trawl permit that qualified for a C/P 
endorsement and which has shorebased permit history will not be 
included in the preliminary QS and IBQ allocation formula, other than 
in the determination of fleet history used in the calculation of 
relative history for limited entry trawl permits that do not have a C/P 
endorsement.
    (5) History of illegal landings and landings made under nonwhiting 
EFPs that are in excess of the cumulative limits in place for the non-
EFP fishery will not count toward the allocation of QS.
    (6) The limited entry trawl permit's landings history includes the 
landings history of limited entry trawl permits that have been 
previously combined with that limited entry trawl permit.
    (7) If two or more limited entry trawl permits have been 
simultaneously registered to the same vessel, NMFS will split the 
landing history evenly between all such limited entry trawl permits 
during the time they were simultaneously registered to the vessel.
    (8) Unless otherwise noted, the calculation for the reallocation of 
widow rockfish QS under paragraph (d)(9) will be based on state landing 
receipts (fish tickets) as recorded in the relevant PacFIN dataset on 
July 27, 2016.
    (9) For limited entry trawl permits, landings under provisional 
``A'' permits that did not become ``A'' permits and ``B'' permits will 
not count toward the reallocation of widow rockfish QS, other than in 
the determination of fleet

[[Page 55787]]

history used in the calculation of relative history for permits that do 
not have a C/P endorsement.
    (10) For limited entry trawl permits, NMFS will calculate the 
reallocation of widow rockfish QS separately based on whiting trips and 
nonwhiting trips, and will weigh each calculation according to a split 
between whiting trips and nonwhiting trips of 10.833 percent for 
whiting trips and 89.167 percent for nonwhiting trips, which is a one-
time proportion necessary for the reallocation formula.
    (B) Preliminary widow rockfish QS reallocation for nonwhiting 
trips. The preliminary reallocation process in paragraph (d)(9)(iii)(A) 
of this section follows a two-step process, one to allocate a pool of 
QS equally among all eligible limited entry permits and the other to 
allocate the remainder of the preliminary QS based on limited entry 
trawl permit history. Through these two processes, preliminary QS 
totaling 100 percent will be allocated. In later steps, this will be 
adjusted and reduced as indicated in paragraph (d)(9)(iii)(C) and (D) 
to determine the QS allocation.
    (1) QS to be allocated equally. The pool of QS for equal allocation 
will be determined using the nonwhiting trip landings history from 
Federal limited entry groundfish permits that were retired through the 
Federal buyback program (i.e., buyback program) (68 FR 42613, July 18, 
2003). The nonwhiting trip QS pool associated with the buyback permits 
will be the buyback permit history as a percent of the total fleet 
history for the 1994 to 2003 nonwhiting trip reallocation period. The 
calculation will be based on total absolute pounds with no dropped 
years and no other adjustments. The QS pool associated with the buyback 
permits will be divided equally among all qualifying limited entry 
permits.
    (2) QS to be allocated based on each permit's history. The pool of 
QS for allocation based on limited entry trawl permit nonwhiting trip 
history will be the QS remaining after subtracting out the QS allocated 
equally. This pool will be allocated to each qualifying limited entry 
trawl permit based on the permit's relative nonwhiting trip history 
from 1994 through 2002, dropping the three lowest years. For each 
limited entry trawl permit, NMFS will calculate relative history using 
the following methodology. First, NMFS will sum the permit's widow 
rockfish landings on nonwhiting trips for each year in the reallocation 
period. Second, NMFS will divide each permit's annual sum by the 
shoreside limited entry trawl fleet's annual sum. NMFS will then 
calculate a total relative history for each permit by adding all 
relative histories for the permit together and subtracting the three 
years with the lowest relative history for the permit. The result for 
each permit will be divided by the aggregate sum of all total relative 
histories of all qualifying limited entry trawl permits. NMFS will then 
multiply the result from this calculation by the amount of QS in the 
pool to be allocated based on each permit's history.
    (C) Preliminary widow rockfish QS reallocation for whiting trips. 
The preliminary reallocation process in paragraph (d)(9)(iii)(B) of 
this section follows a two-step process, one to allocate a pool of QS 
equally among all eligible limited entry permits and the other to 
allocate the remainder of the preliminary QS based on permit history. 
Through these two processes, preliminary QS totaling 100 percent will 
be allocated. In later steps, this will be adjusted and reduced as 
indicated in paragraph (d)(9)(iii)(C) and (D) to determine the QS 
allocation.
    (1) QS to be allocated equally. The pool of QS for equal allocation 
will be determined using whiting trip landings history from Federal 
limited entry groundfish permits that were retired through the Federal 
buyback program (i.e., buyback program) (68 FR 42613, July 18, 2003). 
The whiting trip QS pool associated with the buyback permits will be 
the buyback permit history as a percent of the total fleet history for 
the 1994 to 2003 whiting trip reallocation period. The calculation will 
be based on total absolute pounds with no dropped years and no other 
adjustments. The QS pool associated with the buyback permits will be 
divided equally among all qualifying limited entry permits.
    (2) QS to be allocated based on each permit's history. The pool of 
QS for allocation based on each limited entry trawl permit's whiting 
trip history will be the QS remaining after subtracting out the QS 
allocated equally. Widow rockfish QS for this pool will be allocated 
pro-rata based on each limited entry trawl permit's whiting QS from 
whiting trips that was established in 2010 and used to allocate the 
whiting trip portion of whiting QS at the time of initial 
implementation in 2011. Pro-rata means a percent that is equal to the 
percent of whiting QS from whiting trips.
    (D) QS from limited entry permits calculated separately for 
nonwhiting trips and whiting trips. NMFS will calculate the portion of 
widow QS a limited entry trawl permit receives based on nonwhiting 
trips and whiting trips separately, and will weight each preliminary QS 
in proportion to the one-time reallocation percentage between whiting 
trips and nonwhiting trips of 10.833 percent and 89.167 percent, 
respectively.
    (1) Nonwhiting trips. To determine the amount of widow QS for 
nonwhiting trips for each limited entry trawl permit, NMFS will 
multiply the preliminary QS for the permit from paragraph 
(d)(9)(iii)(A) of this section by the one-time reallocation percentage 
of 89.167 percent for nonwhiting trips.
    (2) Whiting trips. To determine the amount of widow QS for whiting 
trips for each limited entry trawl permit, NMFS will multiply the 
preliminary QS for the permit from paragraph (d)(9)(iii)(B) of this 
section by the one-time reallocation percentage of 10.833 percent for 
whiting trips.
    (E) QS for each limited entry trawl permit. For each limited entry 
trawl permit, NMFS will add the results for the permit from paragraphs 
(d)(9)(iv)(D)(1) and (D)(2) of this section in order to determine the 
total QS widow for that permit.
    (F) Adjustment for AMP set-aside. NMFS will reduce the widow QS 
reallocated to each permit owner by a proportional amount that is 
equivalent to a reduction of 10 percent across all widow reallocation 
recipients' holdings as a set aside for AMP.
    (v) Widow rockfish QS reallocation application. Persons may apply 
for issuance of reallocated widow rockfish QS by completing and 
submitting a prequalified application. A ``prequalified application'' 
is a partially pre-filled application where NMFS has preliminarily 
determined the landings history for each limited entry trawl permit 
that qualifies the applicant for a reallocation of widow QS. The 
application package will include a prequalified application with 
landings history. The completed application must be either postmarked 
or hand-delivered to NMFS within normal business hours no later than 
December 26, 2017. If an applicant fails to submit a completed 
application by the deadline date, they forgo the opportunity to receive 
reallocated widow rockfish QS and their percentage will be 
redistributed to other QS permit owners who submitted complete widow 
rockfish reallocation applications in proportion to their reallocated 
widow QS amount.
    (vi) Corrections to the application. If an applicant does not 
accept NMFS's calculation in the prequalified application either in 
part or whole, the applicant must identify in writing to NMFS which 
parts the applicant believes to be inaccurate, and must provide 
specific credible information to substantiate any requested 
corrections.

[[Page 55788]]

The completed application and specific credible information must be 
provided to NMFS in writing by the application deadline. Written 
communication must either be post-marked or hand-delivered to NMFS 
within normal business hours no later than December 26, 2017. Requests 
for corrections may only be granted for the following reasons:
    (A) Errors in NMFS's use or application of data, including:
    (1) Errors in NMFS's use or application of landings data from 
PacFIN;
    (2) Errors in NMFS's application of the reallocation formula; and
    (3) Errors in identification of the QS permit owner, permit 
combinations, or vessel registration as listed in NMFS permit database.
    (B) [Reserved]
    (vii) Submission of the application and application deadline--(A) 
Submission of the application. Submission of the complete, certified 
application includes, but is not limited to, the following:
    (1) The applicant is required to sign and date the application and 
declare that the contents are true, correct and complete.
    (2) The applicant must certify that they qualify to own reallocated 
widow rockfish QS.
    (3) The applicant must indicate they accept NMFS's calculation of 
reallocated widow rockfish QS provided in the prequalified application, 
or provide a written statement and credible information if they do not 
accept NMFS's calculation.
    (4) NMFS may request additional information of the applicant as 
necessary to make an IAD on reallocated widow rockfish QS.
    (B) Application deadline. A complete, certified application must be 
either postmarked or hand-delivered within normal business hours to 
NMFS, West Coast Region, Permits Office, Bldg. 1, 7600 Sand Point Way 
NE., Seattle, WA 98115, no later than December 26, 2017. NMFS will not 
accept or review any applications received or postmarked after the 
application deadline. There are no hardship exemptions for this 
deadline.
    (viii) Initial Administrative Determination (IAD). NMFS will issue 
an IAD for all complete, certified applications received by the 
application deadline date. If NMFS approves an application for 
reallocated widow rockfish QS, the IAD will say so, and the applicant 
will receive a 2018 QS permit specifying the reallocated amount of 
widow rockfish QS the applicant has qualified for. If NMFS disapproves 
or partially disapproves an application, the IAD will provide the 
reasons. As part of the IAD, NMFS will indicate to the best of its 
knowledge whether the QS permit owner qualifies for QS or IBQ in 
amounts that exceed the accumulation limits and are subject to 
divestiture provisions given at paragraph (d)(4)(v) of this section. If 
the applicant does not appeal the IAD within 60 calendar days of the 
date on the IAD, the IAD becomes the final decision of the Regional 
Administrator acting on behalf of the Secretary of Commerce.
    (ix) Appeals. For reallocated widow rockfish QS issued under this 
section, the appeals process and timelines are specified at Sec.  
660.25(g), subpart C. For the reallocation of widow rockfish QS, the 
bases for appeal are described in paragraph (d)(9)(vi) of this section. 
Items not subject to appeal include, but are not limited to, the 
accuracy of permit landings data in the relevant PacFIN dataset on July 
27, 2016.
    (e) * * *
    (4) * * *
    (i) Vessel limits. For each IFQ species or species group specified 
in this paragraph, vessel accounts may not have QP or IBQ pounds in 
excess of the QP vessel limit (annual limit) in any year, and, for 
species covered by unused QP vessel limits (daily limit), may not have 
QP or IBQ pounds in excess of the unused QP vessel limit at any time. 
The QP vessel limit (annual limit) is calculated as all QPs transferred 
in minus all QPs transferred out of the vessel account. The unused QP 
vessel limits (daily limit) is calculated as unused available QPs plus 
any pending outgoing transfer of QPs.

------------------------------------------------------------------------
                                             QP vessel       Unused QP
                                          limit  (annual   vessel limit
            Species category                limit)  (in    (daily limit)
                                             percent)      (in percent)
------------------------------------------------------------------------
Arrowtooth flounder.....................              20  ..............
Bocaccio S. of 40[deg]10' N. lat........            15.4            13.2
Canary rockfish.........................              10             4.4
Chilipepper S. of 40[deg]10' N. lat.....              15  ..............
Cowcod S. of 40[deg]10' N. lat..........            17.7            17.7
Darkblotched rockfish...................             6.8             4.5
Dover sole..............................             3.9  ..............
English sole............................             7.5  ..............
Lingcod:
    N. of 40[deg]10' N. lat.............             5.3  ..............
    S. of 40[deg]10' N. lat.............            13.3  ..............
Longspine thornyhead:
    N. of 34[deg]27' N. lat.............               9  ..............
Minor rockfish complex N. of 40[deg]10'
 N. lat.:
    Shelf species.......................             7.5  ..............
    Slope species.......................             7.5  ..............
Minor rockfish complex S. of 40[deg]10'
 N. lat.:
    Shelf species.......................            13.5  ..............
    Slope species.......................               9  ..............
    Other flatfish complex..............              15  ..............
    Pacific cod.........................              20  ..............
    Pacific halibut (IBQ) N. of                     14.4             5.4
     40[deg]10' N. lat..................
    Pacific ocean perch N. of 40[deg]10'               6               4
     N. lat.............................
    Pacific whiting (shoreside).........              15  ..............
    Petrale sole........................             4.5  ..............
Sablefish:
    N. of 36[deg] N. lat. (Monterey                  4.5  ..............
     north).............................
    S. of 36[deg] N. lat. (Conception                 15  ..............
     area)..............................
Shortspine thornyhead:

[[Page 55789]]

 
    N. of 34[deg]27' N. lat.............               9  ..............
    S. of 34[deg]27' N. lat.............               9  ..............
    Splitnose rockfish S. of 40[deg]10'               15  ..............
     N. lat.............................
    Starry flounder.....................              20  ..............
    Widow rockfish......................             8.5  ..............
    Yelloweye rockfish..................            11.4             5.7
    Yellowtail rockfish N. of 40[deg]10'             7.5  ..............
     N. lat.............................
    Nonwhiting groundfish species.......             3.2  ..............
------------------------------------------------------------------------

* * * * *
[FR Doc. 2017-25349 Filed 11-22-17; 8:45 am]
 BILLING CODE 3510-22-P