10466 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 

action as compared to the no action 

alternative are positive. 

The proposed action is almost certain 

to result in greater revenue from skate 

landings. Based on recent landing 

information, the skate fishery is able to 

land close to the full amount of skates 

allowable under the quotas. The 

estimated potential revenue from the 

sale of skates under the proposed catch 

limits is approximately $9.8 million per 

year, compared to $5.8 million if this 

action were not implemented. However, 

vessels that participate in the skate 

fishery derive most (an average of 96 

percent) of their revenues from other 

fisheries (e.g., groundfish, monkfish). In 

fishing year 2010, the average total 

revenue (from all species combined) for 

the 601 vessels that landed skates was 

$234,389, of which an average of 

$17,042 was derived from skates. 

Therefore alterations to catch limits of 

other species would be expected to 

result in greater impacts on total fishing 

revenues than would alterations in skate 

catch limits. The proportion of revenue 

derived from skates may change over 

time, as skate prices have begun 

increasing in recent years, and more 

vessels have been deriving a greater 

proportion of their income from skates. 

Dated: February 15, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping. 

For the reasons set out in the 

preamble, 50 CFR part 648 is proposed 

to be amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.322, revise paragraph (b) 

introductory text, (b)(1) and (c)(4) to 

read as follows: 

§ 648.322 Skate allocation, possession, 

and landing provisions. 

* * * * * 

(b) Skate wing possession and landing 

limits. A vessel or operator of a vessel 

that has been issued a valid Federal 

skate permit under this part, and fishes 

under an Atlantic sea scallop, NE 

multispecies, or monkfish DAS as 

specified at §§ 648.53, 648.82, and 

648.92, respectively, unless otherwise 

exempted under § 648.80 or paragraph 

(c) of this section, may fish for, possess, 

and/or land up to the allowable trip 

limits specified as follows: 

(1) Up to 2,200 lb (998 kg) of skate 

wings (4,994 lb (2,265 kg) whole weight) 

per trip from May 1 through August 31, 

and 3,600 lb (1,633 kg) of skate wings 

(8,172 lb (3,707 kg) whole weight) per 

trip from September 1 through April 30, 

except for a vessel fishing on a declared 

NE multispecies Category B DAS 

described under § 648.85(b), which is 

limited to no more than 220 lb (100 kg) 

of skate wings (500 lb (227 kg) whole 

weight) per trip (or any prorated 

combination of skate wings and whole 

skates based on the conversion factor for 

wing weight to whole weight of 2.27— 

for example, 100 lb (45.4 kg) of skate 

wings X 2.27 = 227 lb (103.1 kg) of 

whole skates). 

* * * * * 

(c) * * * 

(4) The vessel owner or operator 

possesses or lands no more than 25,000 

lb (11,340 kg) of only whole skates less 

than 23 inches (58.42 cm) total length, 

and does not possess or land any skate 

wings or whole skates greater than 23 

inches (58.42 cm) total length. 

* * * * * 

[FR Doc. 2012–4111 Filed 2–21–12; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 120207106–2105–01] 

RIN 0648–BB85 

Magnuson-Stevens Act Provisions; 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; 2012 

Tribal Fishery for Pacific Whiting 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS issues this proposed 

rule for the 2012 Pacific whiting fishery 

under the authority of the Pacific Coast 

Groundfish Fishery Management Plan 

(FMP), the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act), and the Pacific 

Whiting Act of 2006. This proposed rule 

would establish a tribal allocation of 

17.5 percent of the U.S. total allowable 

catch (TAC) for 2012. 

The regulations proposed by this 

action would also establish a process for 

reapportionment of unused tribal 

allocation of Pacific whiting to the nontribal fisheries. 

DATES: Comments on this proposed rule 

must be received no later than 5 p.m., 

local time on March 23, 2012. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–BB85 by any of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal, at http:// 

www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘submit a comment’’ icon, 

then enter (RIN Number) in the keyword 

search. Locate the document you wish 

to comment on from the resulting list 

and click on the ‘‘Submit a Comment’’ 

icon on the right of that line. 

• Fax: 206–526–6736, Attn: Kevin C. 

Duffy. 

• Mail: William W. Stelle, Jr., 

Regional Administrator, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE., Seattle, WA 98115–0070, Attn: 

Kevin C. Duffy. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (if submitting comments via 

the Federal Rulemaking portal, enter 

‘‘N/A’’ in the relevant required fields if 

you wish to remain anonymous). 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

FOR FURTHER INFORMATION CONTACT: 

Kevin C. Duffy (Northwest Region, 

NMFS), phone: 206–526–4743, fax: 206– 

526–6736 and email: 

kevin.duffy@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This proposed rule is accessible via 

the Internet at the Office of the Federal 

Register’s Web site at http:// 

www.gpo.gov/fdsys/search/home.action. 

Background information and documents 

are available at the Pacific Fishery 

Management Council’s Web site at 

http://www.pcouncil.org/. 

Background 

The regulations at 50 CFR 660.50(d) 

establish the process by which the tribes 

with treaty fishing rights in the area 


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Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 10467 

covered by the Pacific Coast Groundfish 

Fishery Management Plan (FMP) request 

new allocations or regulations specific 

to the tribes, in writing, during the 

biennial harvest specifications and 

management measures process. The 

regulations state that ‘‘the Secretary will 

develop tribal allocations and 

regulations under this paragraph in 

consultation with the affected tribe(s) 

and, insofar as possible, with tribal 

consensus.’’ These procedures 

employed by NOAA in implementing 

tribal treaty rights under the FMP, in 

place since May 31, 1996, were 

designed to provide a framework 

process by which NOAA Fisheries can 

accommodate tribal treaty rights by 

setting aside appropriate amounts of 

fish in conjunction with the Pacific 

Fishery Management Council (Council) 

process for determining harvest 

specifications and management 

measures. The Council’s groundfish 

fisheries require a high degree of 

coordination among the tribal, state, and 

federal co-managers in order to rebuild 

overfished species and prevent 

overfishing, while allowing fishermen 

opportunities to sustainably harvest 

over 90 species of groundfish managed 

under the FMP. 

Since 1996, NMFS has been allocating 

a portion of the U.S. TAC (called 

Optimum Yield (OY) or Annual Catch 

Limit (ACL) prior to 2012) of Pacific 

whiting to the tribal fishery following 

the process established in 50 CFR 

660.50(d). The tribal allocation is 

subtracted from the U.S. Pacific whiting 

TAC before allocation to the non-tribal 

sectors. 

To date, only the Makah Tribe has 

prosecuted a tribal fishery for Pacific 

whiting. The Makah Tribe has annually 

harvested a whiting allocation every 

year since 1996 using midwater trawl 

gear. Since 1999, the tribal allocation 

has been made in consideration of their 

participation in the fishery. In 2008 the 

Quileute Tribe and Quinault Indian 

Nation expressed an interest in 

commencing participation in the 

whiting fishery. Tribal allocations for 

2009–2011 were based on discussions 

with all three tribes regarding their 

intent for those fishing years. The table 

below provides a history of U.S. OYs/ 

ACLs and the annual tribal allocation in 

metric tons (mt). 

Year U.S. OY 

(mt) 

Tribal 

allocation 

(mt) 

2000 .......... 232,000 32,500 

2001 .......... 190,400 27,500 

2002 .......... 129,600 22,680 

2003 .......... 148,200 25,000 

2004 .......... 250,000 32,500 

Year U.S. OY 

(mt) 

Tribal 

allocation 

(mt) 

2005 .......... 269,069 35,000 

2006 .......... 269,069 32,500 

2007 .......... 242,591 35,000 

2008 .......... 269,545 35,000 

2009 .......... 135,939 50,000 

2010 .......... 193,935 49,939 

2011 .......... 290,903 66,908 

Prior to publication of the regulations 

for the 2011–2012 harvest specification 

biennial cycle, all three tribes 

mentioned above indicated their intent 

to participate at some point during this 

biennium. The Quinault Nation 

indicated that they were interested in 

entering the fishery in 2011, and both 

the Quileute and Makah Tribes 

indicated they intended to fish in both 

2011 and 2012. Only the Makah tribe 

participated in the fishery in 2011. 

Based on exchanges with the tribes 

during November 2011, and again in 

January 2012, it appears that only the 

Makah tribe will participate in the 

Pacific whiting fishery in 2012. 

Since 2008, NMFS and the comanagers, including the States of 

Washington and Oregon, as well as the 

Treaty tribes, have been involved in a 

process designed to determine the longterm tribal allocation for Pacific 

whiting. At the September 2008 Council 

meeting, NOAA, the states and the 

Quinault, Quileute, and Makah tribes 

met and agreed on a process in which 

NOAA would provide to the tribes and 

states of Washington and Oregon a 

summary of the current scientific 

information regarding whiting, receive 

comment on the information and 

possible analyses that might be 

undertaken, and then prepare analyses 

of the information to be used by the comanagers (affected tribes, affected states, 

and NMFS) in developing a tribal 

allocation for use in 2010 and beyond. 

The goal was agreement among the comanagers on a long-term tribal 

allocation for incorporation into the 

Council’s planning process for the 2010 

season. An additional purpose was to 

provide the tribes the time and 

information to develop an inter-tribal 

allocation or other necessary 

management agreement. In 2009, NMFS 

shared a preliminary report 

summarizing scientific information 

available on the migration and 

distribution of Pacific whiting on the 

west coast. The co-managers met in 

2009 and discussed this preliminary 

information. 

In 2010, NMFS finalized the report 

summarizing scientific information 

available on the migration and 

distribution of Pacific whiting on the 

west coast. In addition, NMFS 

responded in writing to requests from 

the tribes for clarifications on the paper 

and requests for additional information. 

NMFS also met with each of the tribes 

in the fall of 2010 to discuss the report 

and to discuss a process for negotiation 

of the long-term tribal allocation of 

Pacific whiting. 

In 2011, NMFS again met individually 

with the Makah, Quileute, and Quinault 

tribes to discuss these matters. Due to 

the detailed nature of the evaluation of 

the scientific information, and the need 

to negotiate a long-term tribal allocation 

following completion of the evaluation, 

the process is continuing and will not 

be completed prior to the 2012 Pacific 

whiting fishery; thus the tribal 

allocation of whiting for 2012 will not 

reflect a negotiated long-term tribal 

allocation. Instead, it is an interim 

allocation not intended to set precedent 

for future allocations. 

Tribal Allocation for 2012 

It is necessary to propose a range for 

the tribal allocation, rather than a 

specific allocation amount, because the 

specific allocation depends on the 

amount of the coastwide TAC (United 

States plus Canada) and corresponding 

U.S. TAC for 2012 (73.88% of the 

coastwide TAC). The Joint Management 

Committee (JMC), which is established 

pursuant to the _ Agreement between 

the Government of the United States of 

America and the Government of Canada 

on Pacific Hake/Whiting _ (the 

Agreement), is anticipated to 

recommend the coastwide and 

corresponding U.S./Canada TACs no 

later than March 25, 2012. 

In the final Environmental Impact 

Statement (FEIS) addressing the 

groundfish fishery for the 2011 and 

2012 harvest specifications and 

management measures, a range of 50 to 

150 percent of the 2010 coastwide 

harvest level was analyzed. 

The Council adopted a coastwide 

Overfishing Limit (OFL) of 973,700 mt 

for 2011 fisheries using the modelaveraged results as recommended by the 

Council’s Scientific and Statistical 

Committee (SSC). The Council 

recommended a coastwide harvest level 

of 393,751 mt for 2011 fisheries. 

Consistent with the terms of the 

Agreement, the U.S. allocation of the 

coastwide harvest level is 73.88 percent, 

which equated to 290,903 mt for 2011. 

In order for the public to have an 

understanding of the potential tribal 

whiting allocation in 2012, NMFS is 

using the range of potential TACs 

analyzed in the 2011 FEIS to project a 

range of potential tribal allocations for 

2012. Application of this range for 2011 


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10468 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 

resulted in a potential U.S. TAC of 

between 96,969 mt and 290,903 mt. 

As described above, based on 

exchanges with the tribes during 

November 2011, and more recently in 

January, 2012, it appears that only the 

Makah tribe will participate in the 

Pacific whiting fishery in 2012, and they 

have requested 17.5% of the U.S. TAC. 

Application of this percentage to the 

range of U.S. TACs results in a tribal 

allocation of between 16,970 and 50,908 

mt for 2012. NMFS believes that the 

current scientific information regarding 

the distribution and abundance of the 

coastal Pacific whiting stock suggests 

that 17.5 percent of the U.S. TAC is 

within the range of the tribal treaty right 

to Pacific whiting. 

As described earlier, NOAA Fisheries 

proposes this rule as an interim 

allocation for the 2012 tribal Pacific 

whiting fishery. As with past 

allocations, this proposed rule is not 

intended to establish any precedent for 

future whiting seasons or for the longterm tribal allocation of whiting. 

The proposed rule would be 

implemented under authority of Section 

305(d) of the Magnuson-Stevens Act, 

which gives the Secretary responsibility 

to ‘‘carry out any fishery management 

plan or amendment approved or 

prepared by him, in accordance with the 

provisions of this Act.’’ With this 

proposed rule, NMFS, acting on behalf 

of the Secretary, would ensure that the 

FMP is implemented in a manner 

consistent with treaty rights of four 

Northwest tribes to fish in their ‘‘usual 

and accustomed grounds and stations’’ 

in common with non-tribal citizens. 

United States v. Washington, 384 F. 

Supp. 313 (W.D. 1974). 

Reapportionment of Pacific Whiting 

NMFS proposes to reinstate its 

regulatory authority to reapportion 

whiting from the tribal allocation to the 

non-tribal fishery when the tribes 

participating in the fishery will not take 

the entire tribal allocation during the 

fishing year. From 1997 through 2010, 

50 CFR 660.323(c) provided authority to 

NMFS to undertake such 

reapportionment. For 2011, the 

regulatory provisions regarding 

reapportionment of tribal whiting 

allocation to the non-tribal fishery were 

eliminated when regulations 

implementing Amendment 21 were 

adopted in support of the trawl 

rationalization program. Revisions to 

the groundfish regulations at § 660.55 

defined how ‘‘off the top’’ set-asides for 

all species, including the tribal 

allocation of Pacific whiting, would be 

dealt with. The new provisions did not 

allow flexibility to return the ‘‘off the 

top’’ set asides, including those for 

Pacific whiting, to other sectors of the 

fishery. Following implementation of 

the catch share program, the Council 

had additional discussions about 

reapportionment of the tribal allocation 

of Pacific whiting. The Council 

recommended that NMFS reinstate 

reapportionment provisions in order to 

promote full utilization of the Pacific 

whiting resource. NMFS is taking action 

at this time to reinstate similar 

reapportionment provisions, 

recognizing that modifications are 

needed to fit within the new regulatory 

structure implemented for the IFQ 

fishery. 

By September 15 of the fishing year, 

the Regional Administrator will 

consider, based on discussions with 

tribal representatives, the tribal harvests 

to date and catch projections for the 

remainder of the year relative to the 

tribal allocation as specified at § 660.50 

of Pacific whiting. That portion of the 

tribal allocation the Regional 

Administrator determines will not be 

used by the end of the fishing year may 

be made available for harvest by the 

other sectors of the trawl fishery, on 

September 15 or as soon as practicable 

thereafter. Based on the same factors 

described above, the Regional 

Administrator may reapportion whiting 

again at a later date to ensure full 

utilization of the resource. Any 

reapportionment of Pacific whiting from 

the tribal to the non-tribal sectors will 

be distributed in a manner consistent 

with the initial allocation of Pacific 

whiting among the non-tribal sectors, 

with 34 percent to the catcher-processor 

sector, 24 percent to the mothership 

sector, and 42 percent to the shorebased 

sector. 

Current regulations at 50 CFR 

660.140(d)(3)(ii)(B)(3) require that all 

Quota Pounds (QP) or Individual 

Bycatch Quota (IBQ) pounds from a 

Quota Share (QS) account must be 

transferred to one or more vessel 

accounts by September 1 of each year. 

This effectively closes QS accounts for 

the year. 

If the Regional Administrator makes a 

decision to reapportion Pacific whiting 

from the tribal to the non-tribal fishery 

after September 1 in any year, the 

following actions will be taken. 

NMFS will credit QS accounts with 

additional Pacific whiting quota pounds 

proportionally, based on the whiting QS 

percent for a particular QS permit 

owner and the amount of the sector 

reapportionment. The QS account 

transfer function will be reactivated by 

NMFS for a period of 30 days to allow 

permit holders to transfer only Pacific 

whiting QP to vessel accounts. After 30 

days, the transfer function in QS 

accounts will again be deactivated. If an 

additional reapportionment of Pacific 

whiting occurs, the same procedures 

will be followed. 

Classification 

NMFS has preliminarily determined 

that the management measures for the 

2012 Pacific whiting tribal fishery are 

consistent with the national standards 

of the Magnuson-Stevens Act and other 

applicable laws. NMFS, in making the 

final determination, will take into 

account the data, views, and comments 

received during the comment period. 

The Office of Management and Budget 

has determined that this proposed rule 

is not significant for purposes of 

Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA). The IRFA describes the 

economic impact this proposed rule, if 

adopted, would have on small entities. 

A summary of the analysis follows. A 

copy of this analysis is available from 

NMFS (see ADDRESSES). 

Under the RFA, the term ‘‘small 

entities’’ includes small businesses, 

small organizations, and small 

governmental jurisdictions. The SBA 

has established size criteria for all 

different industry sectors in the US, 

including fish harvesting and fish 

processing businesses. A business 

involved in fish harvesting is a small 

business if it is independently owned 

and operated and not dominant in its 

field of operation (including its 

affiliates) and if it has combined annual 

receipts less than $4.0 million for all its 

affiliated operations worldwide. A 

seafood processor is a small business if 

it is independently owned and operated, 

not dominant in its field of operation, 

and employs 500 or fewer persons at all 

its affiliated operations worldwide. A 

business involved in both the harvesting 

and processing of seafood products is a 

small business if it meets the $4.0 

million criterion for fish harvesting 

operations. A wholesale business 

servicing the fishing industry is a small 

business if it employs 100 or fewer 

persons at all its affiliated operations 

worldwide. For marinas and charter/ 

party boats, a small business is a 

business with annual receipts less than 

$7.0 million. For nonprofit 

organizations, the RFA defines a small 

organization as any nonprofit enterprise 

that is independently owned and 

operated and is not dominant in its 

field. The RFA defines small 

governmental jurisdictions as 

governments of cities, counties, towns, 

townships, villages, school districts, or 


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Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 10469 

special districts with populations of less 

than 50,000. 

Over the past five years (2007 to 

2011), the total whiting fishery (tribal 

and non-tribal) has averaged landings of 

197,000 mt annually, worth $36 million 

in terms of ex-vessel revenues. As the 

U.S. OY/ACL has been highly variable 

during this time, so have landings. 

During this period, landings have 

ranged from 121,000 mt (2009) to 

248,000 mt (2008). Landings for 2011 

are estimated to be about 197,000 mt. 

Ex-vessel revenues have also varied. 

Annual ex-vessel revenues have ranged 

from $14 million (2009) to $58 million 

(2008). Ex-vessel revenues in 2011 were 

about $46 million. As landings have 

varied, so have prices. These prices are 

largely determined by the world market 

for groundfish as most of the whiting 

harvested is exported. Ex-vessel prices 

have ranged from $116 per mt (2009) to 

$236 per mt (2008). Average ex-vessel 

price for whiting in 2011 was $232 per 

mt. Note that the use of ex-vessel values 

does not take into account the wholesale 

or export value of the fishery or the 

costs of harvesting and processing 

whiting into a finished product. NMFS 

does not have sufficient information to 

make a complete assessment of these 

values. 

The Pacific whiting fishery harvests 

almost exclusively Pacific whiting. 

While bycatch of other species occurs, 

the fishery is constrained by bycatch 

limits on key overfished species. This is 

a high-volume fishery with low exvessel prices per pound. This fishery 

has seasonal aspects based on the 

distribution of whiting off the west 

coast. The whiting fishery has four 

components. The shorebased fishery 

delivers their catch to processing 

facilities on land. Most of these vessels 

also deliver other groundfish species to 

shorebased plants. This fishery is 

managed under an individual fishing 

quota system. In the mothership sector, 

catcher vessels deliver to floating 

processors called motherships. This 

fishery is managed under a single 

mothership co-op—the Whiting 

Mothership Cooperative. The catcherprocessor fleet consists of vessels that 

both catch the fish and process it 

aboard. This fishery is also managed 

under a co-op—the Pacific Whiting 

Conservation Cooperative. 

The fourth component of the fishery 

is the tribal fishery. Since 1996, there 

has been a tribal allocation of the U.S. 

whiting TAC. There are three tribes 

associated with the whiting fishery: 

Makah, Quileute, and Quinault. 

There are two key features of this rule 

making: establishing the 2012 interim 

tribal allocation and reinstatement of 

regulatory authority to reapportion 

whiting from the tribal to the non-tribal 

fishery. The alternatives are ‘‘NoAction’’ vs. the ‘‘Proposed Action’’. The 

proposed allocation, based on 

discussions with the tribes is for NMFS 

to allocate 17.5 percent of the U.S. total 

allowable catch for 2012. NMFS did not 

consider a broader range of alternatives 

to the proposed allocation. The tribal 

allocation is based primarily on the 

requests of the tribes. These requests 

reflect the level of participation in the 

fishery that will allow them to exercise 

their treaty right to fish for whiting. 

Consideration of amounts lower than 

the tribal requests is not appropriate in 

this instance. As a matter of policy, 

NMFS has historically supported the 

harvest levels requested by the tribes. 

Based on the information available to 

NMFS, the tribal request is within their 

tribal treaty rights, and the participating 

tribe has historically shown an ability to 

harvest the amount of whiting 

requested. A higher allocation would be, 

arguably, within the scope of the treaty 

right. However, a higher allocation 

would unnecessarily limit the non-tribal 

fishery. A no action alternative was 

considered, but the regulatory 

framework provides for a tribal 

allocation on an annual basis only. 

Therefore, no action would result in no 

allocation of Pacific whiting to the tribal 

sector in 2012, which would be 

inconsistent with NMFS’ responsibility 

to manage the fishery consistent with 

the tribes’ treaty rights. Given that there 

is a tribal request for allocation in 2012, 

this alternative received no further 

consideration. 

There are two alternatives associated 

with reinstating the authority to 

reapportion unused Pacific whiting 

from the tribal fishery to the non-tribal 

fishery. The ‘‘No-Action’’ alternative is 

the authority not reinstated. The 

‘‘Proposed’’ Alternative would be to 

reinstate the authority. 

NMFS has reviewed analyses of fish 

ticket data and limited entry permit 

data, available employment data 

provided by processors, information on 

Tribal fleets, and industry responses to 

a 2010 survey on ownership and has 

developed the following estimates for 

the whiting fishery. There are four 

affected components of this fisheryShorebased whiting, mothership 

whiting, catcher-processor, and tribal. In 

the shorebased whiting fishery, quota 

shares of whiting were allocated to 138 

entities including ten shoreside 

processing companies. These entities 

can fish the quota pounds associated 

with their quota shares, transfer their 

quota pounds to other to fish, or choose 

not to fish their quota pounds. Whiting 

is landed as bycatch in other fisheries or 

as a target catch in the whiting fishery. 

To analyze the number of participants 

primarily affected by this rule making, 

targeted whiting trips are defined as 

landings that contained 5,000 pounds or 

more of whiting. During 2011, 62 

vessels landed a total of about 200 

million pounds of whiting. Of these 

vessels, only 26 vessels had landings 

greater than 5,000 pounds. Thirteen of 

these 26 vessels are ‘‘small’’ entities. 

These 26 vessels delivered their catch to 

10 processing companies. These 10 

processing companies, either through 

ownership or affiliation, can be 

organized into to 6 entities. Four of 

these 6 entities are ‘‘small’’ entities. 

There are 37 limited entry permits that 

have mothership whiting catch history 

assignments. During 2011, these 37 

permits pooled their whiting catch 

history assignments into a single 

mothership fishery co-op. 

Approximately half of these vessels are 

‘‘small’’ entities. Vessels in the 

mothership co-op deliver their catch to 

mothership processors. There are 6 

mothership processing companies; three 

or which are ‘‘small’’ entities. The 

catcher-processor fleet has ten limited 

entry permits and 10 vessels, owned by 

three companies. These three companies 

are considered ‘‘large’’ companies 

mainly because of their operations off 

Alaska. The tribal fleet is comprised of 

5 vessels considered to be ‘‘small’’ 

entities, while the 3 tribal governments, 

based on population sizes, are 

considered ‘‘small’’ entities. 

The expected effect of the ‘‘Proposed’’ 

alternative relative to the ‘‘No Action’’ 

alternative is to allow unharvested tribal 

allocations of whiting to be fished by 

the non-tribal fleets, benefitting both 

large and small entities. With the 

implementation of Amendments 20 and 

21, the ability to reapportion whiting 

from tribal to the non-tribal fishery was 

eliminated for 2011. Pending markets, 

available bycatch, and the ability of 

tribal fleets to develop the capacity to 

harvest the tribal allocation there may 

be uncaught whiting in the tribal fishery 

because there is no regulatory 

mechanism to transfer uncaught whiting 

to the non-tribal fishery. For 2010, the 

tribes were initially allocated 49,939 mt. 

As tribal harvests were projected to be 

about 16,000 mt, in September 2010 and 

October 2010, NMFS reapportioned a 

total of 16,000 mt of whiting from the 

tribal allocation to the non-tribal 

shorebased, mothership, and catcher 

processor sectors. Unlike 2010, for 2011, 

NMFS was not authorized to 

reapportion unharvested tribal whiting 

to the non-tribal sectors. Tribal harvests 


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as of October 7, 2011 were about 19 

percent of the 66,908 mt allocation 

indicating that about 54,000 tons of the 

tribal allocation would go unfished. 

This rulemaking would reinstate the 

regulatory authority to reapportion 

whiting from the tribal to the non-tribal 

fishery. If NMFS was authorized in 2011 

to reapportion half or more of the 54,000 

mt unfished tribal allocation, the exvessel revenues could have increased by 

as much as $6.0 million. 

This proposed rule would directly 

regulate which entities can harvest 

whiting. This rule would allocate fish 

between tribal harvesters (harvest 

vessels are small entities, tribes are 

small jurisdictions) to non-tribal 

harvesters (a mixture of small and large 

businesses). Tribal fisheries are a 

mixture of activities that are similar to 

the activities that non-tribal fisheries 

undertake. Tribal harvests are delivered 

to both shoreside plants and 

motherships for processing. These 

processing facilities also process fish 

harvested by non-tribal fisheries. 

NMFS believes this proposed rule 

would not adversely affect small entities 

and is likely to be beneficial to both 

small and large entities as it allows 

unharvested tribal fish to be harvested 

by non-tribal harvesters. Nonetheless, 

NMFS has prepared this IRFA and is 

requesting comments on this 

conclusion. 

There are no reporting, recordkeeping 

or other compliance requirements in the 

proposed rule. 

No Federal rules have been identified 

that duplicate, overlap, or conflict with 

this action. 

NMFS issued Biological Opinions 

under the ESA on August 10, 1990, 

November 26, 1991, August 28, 1992, 

September 27, 1993, May 14, 1996, and 

December 15, 1999 pertaining to the 

effects of the Pacific Coast groundfish 

FMP fisheries on Chinook salmon 

(Puget Sound, Snake River spring/ 

summer, Snake River fall, upper 

Columbia River spring, lower Columbia 

River, upper Willamette River, 

Sacramento River winter, Central Valley 

spring, California coastal), coho salmon 

(Central California coastal, southern 

Oregon/northern California coastal), 

chum salmon (Hood Canal summer, 

Columbia River), sockeye salmon (Snake 

River, Ozette Lake), and steelhead 

(upper, middle and lower Columbia 

River, Snake River Basin, upper 

Willamette River, central California 

coast, California Central Valley, south/ 

central California, northern California, 

southern California). These biological 

opinions have concluded that 

implementation of the FMP for the 

Pacific Coast groundfish fishery was not 

expected to jeopardize the continued 

existence of any endangered or 

threatened species under the 

jurisdiction of NMFS, or result in the 

destruction or adverse modification of 

critical habitat. 

NMFS issued a Supplemental 

Biological Opinion on March 11, 2006 

concluding that neither the higher 

observed bycatch of Chinook in the 

2005 whiting fishery nor new data 

regarding salmon bycatch in the 

groundfish bottom trawl fishery 

required a reconsideration of its prior 

‘‘no jeopardy’’ conclusion. NMFS also 

reaffirmed its prior determination that 

implementation of the Groundfish 

PCGFMP is not likely to jeopardize the 

continued existence of any of the 

affected ESUs. Lower Columbia River 

coho (70 FR 37160, June 28, 2005) and 

Oregon Coastal coho (73 FR 7816, 

February 11, 2008) were recently 

relisted as threatened under the ESA. 

The 1999 biological opinion concluded 

that the bycatch of salmonids in the 

Pacific whiting fishery were almost 

entirely Chinook salmon, with little or 

no bycatch of coho, chum, sockeye, and 

steelhead. 

NMFS has reinitiated consultation on 

the fishery to address newly listed 

species including Pacific eulachon and 

green sturgeon, and other non-salmonid 

listed species (marine mammals, sea 

birds, and turtles). NMFS will be 

completing a consultation on listed 

marine species for the 2012 groundfish 

fishery by the end of January 2012, and 

expects that consultation on seabirds 

will be completed prior to late summer 

of 2012. Further, NMFS has concluded 

that take of any marine species that will 

be covered by the opinion to be issued 

in early 2012 is very unlikely to occur 

prior to completion of that opinion, and 

that take of listed seabirds is unlikely to 

occur in 2012. Marine Mammal 

Protection Act (MMPA) 

Impacts resulting from fishing 

activities proposed in this rule are 

discussed in the FEIS for the 2011–12 

groundfish fishery specifications and 

management measures. As discussed 

above, NMFS does not anticipate 

incidental take of ESA-listed marine 

mammals prior to the completion of the 

2012 ESA consultation covering these 

species. NMFS expects to complete the 

process leading to any necessary 

authorization of incidental taking under 

MMPA section 101(a)(5)(E) concurrent 

with the 2012 biological opinion. 

Pursuant to Executive Order 13175, 

this proposed rule was developed after 

meaningful consultation and 

collaboration with tribal officials from 

the area covered by the FMP. Consistent 

with the Magnuson-Stevens Act at 16 

U.S.C. 1852(b)(5), one of the voting 

members of the Pacific Council is a 

representative of an Indian tribe with 

federally recognized fishing rights from 

the area of the Council’s jurisdiction. In 

addition, NMFS has coordinated 

specifically with the tribes interested in 

the whiting fishery regarding the issues 

addressed by this rule. 

List of Subjects in 50 CFR Part 660 

Fisheries, Fishing, Indian fisheries. 

Dated: February 16, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 660 is proposed 

to be amended as follows: 

PART 660—FISHERIES OFF WEST 

COAST STATES 

1. The authority citation for part 660 

is amended to read as follows: 

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

U.S.C. 773 et seq. 

2. In § 660.50, paragraph (f)(4) is 

revised to read as follows: 

§ 660.50 Pacific Coast treaty Indian 

fisheries. 

* * * * * 

(f) * * * 

(4) Pacific whiting. The tribal 

allocation for 2012 will be 17.5 percent 

of the U.S. TAC. 

* * * * * 

3. In § 660.60 paragraphs 

(d)(1)(iv),and (v) are revised and 

paragraphs(d)(1)(vi) and(d)(2) are added 

to read as follows: 

§ 660.60 Specifications and management 

measures. 

* * * * * 

(d) * * * 

(1) * * * 

(iv) Reapportionment of the unused 

portion of the tribal allocation of Pacific 

whiting to the IFQ, mothership and 

catcher processor Pacific whiting 

fisheries. 

(v) Implement the Ocean Salmon 

Conservation Zone, described at 

§ 660.131(c)(3), when NMFS projects the 

Pacific whiting fishery may take in 

excess of 11,000 Chinook within a 

calendar year. 

(vi) Implement Pacific Whiting 

Bycatch Reduction Areas, described at 

§ 660.131(c)(4) Subpart D, when NMFS 

projects a sector-specific bycatch limit 

will be reached before the sector’s 

whiting allocation. 

(2) Automatic actions are effective 

when actual notice is sent by NMFS. 

Actual notice to fishers and processors 


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will be by email, Internet 

(www.nwr.noaa.gov/GroundfishHalibut/Groundfish-FisheryManagement/Whiting-Management/ 

index.cfm), phone, fax, letter, or press 

release. Allocation reapportionments 

will be followed by publication in the 

Federal Register, in which public 

comment will be sought for a reasonable 

period of time thereafter. 

4. In § 660.131 a new paragraph (h) is 

added to read as follows: 

§ 660.131 Pacific whiting fishery 

management measures. 

* * * * * 

(h) Reapportionment of Pacific 

Whiting.(1) By September 15 of the 

fishing year, the Regional Administrator 

will, based on discussions with 

representatives of the tribes 

participating in the Pacific whiting 

fishery for that fishing year, consider the 

tribal harvests to date and catch 

projections for the remainder of the year 

relative to the tribal allocation as 

specified at § 660.50 of Pacific whiting. 

That portion of the tribal allocation that 

the Regional Administrator determines 

will not be used by the end of the 

fishing year may be reapportioned to the 

other sectors of the trawl fishery in 

proportion to their initial allocations, on 

September 15 or as soon as practicable 

thereafter. Subsequent 

reapportionments may be made based 

on subsequent determinations by the 

Regional Administrator based on the 

factors described above in order to 

ensure full utilization of the resource. 

(2) The reapportionment of surplus 

whiting will be made effective 

immediately by actual notice under the 

automatic action authority provided at 

660.60 (d)(1). 

(3) Estimates of the portion of the 

tribal allocation that will not be used by 

the end of the fishing year will be based 

on the best information available to the 

Regional Administrator. 

5. In § 660.140 paragraph (d)(1)(ii) and 

(d)(3)(ii)(B)(3) are revised to read as 

follows: 

§ 660.140 Shorebased IFQ program. 

* * * * * 

(d) * * * 

(1) * * * 

(ii) Annual QP and IBQ pound 

allocations. QP and IBQ pounds will be 

deposited into QS accounts annually. 

QS permit owners will be notified of QP 

deposits via the IFQ Web site and their 

QS account. QP and IBQ pounds will be 

issued to the nearest whole pound using 

standard rounding rules (i.e. , decimal 

amounts less than 0.5 round down and 

0.5 and greater round up), except that in 

the first year of the Shorebased IFQ 

Program, issuance of QP for overfished 

species greater than zero but less than 

one pound will be rounded up to one 

pound. Rounding rules may affect 

distribution of the entire shorebased 

trawl allocation. NMFS will distribute 

such allocations to the maximum extent 

practicable, not to exceed the total 

allocation. QS permit owners must 

transfer their QP and IBQ pounds from 

their QS account to a vessel account in 

order for those QP and IBQ pounds to 

be fished. QP and IBQ pounds must be 

transferred in whole pounds (i.e. , no 

fraction of a QP or IBQ pound can be 

transferred). All QP and IBQ pounds in 

a QS account must be transferred to a 

vessel account by September 1 of each 

year in order to be fished, unless there 

is a reapportionment of Pacific whiting 

consistent with §§ 660.131(h) and 

660.140(d)(3). 

* * * * * 

(3) * * * 

(ii) * * * 

(B) * * * 

(3) Transfer of QP or IBQ pounds from 

a QS account to a vessel account. QP or 

IBQ pounds must be transferred in 

whole pounds (i.e. no fraction of a QP 

can be transferred). QP or IBQ pounds 

must be transferred to a vessel account 

in order to be used. Transfers of QP or 

IBQ pounds from a QS account to a 

vessel account are subject to vessel 

accumulation limits and NMFS’ 

approval. Once QP or IBQ pounds are 

transferred from a QS account to a 

vessel account (accepted by the 

transferee/vessel owner), they cannot be 

transferred back to a QS account and 

may only be transferred to another 

vessel account. QP or IBQ pounds may 

not be transferred from one QS account 

to another QS account. All QP or IBQ 

pounds from a QS account must be 

transferred to one or more vessel 

accounts by September 1 each year. If 

the Regional Administrator makes a 

decision to reapportion Pacific whiting 

from the tribal to the non-tribal fishery 

after September 1 in any year, the 

following actions will be taken. 

(i) NMFS will credit QS accounts with 

additional Pacific whiting QP 

proportionally, based on the whiting QS 

percent for a particular QS permit 

owner and the amount of the sector 

reapportionment of whiting. 

(ii) The QS account transfer function 

will be reactivated by NMFS for a 

period of 30 days from the date that QS 

accounts are credited with additional 

Pacific whiting QP to allow permit 

holders to transfer only Pacific whiting 

QP to vessel accounts. 

(iii) After 30 days, the transfer 

function in QS accounts will again be 

inactivated. 

* * * * * 

[FR Doc. 2012–4113 Filed 2–21–12; 8:45 am] 

BILLING CODE 3510–22–P 


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