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small entities and still meet the
requirements of the statute 10 U.S.C.
2533b.
List of Subjects in 48 CFR Part 252
Government procurement.
b. Removing the numerical
designations preceding the definition
headings of ‘‘Alloy’’; ‘‘Assembly’’;
‘‘Commercial derivative military
article’’; ‘‘Commercially available offthe-shelf item’’; ‘‘Component’’;
‘‘Electronic component’’; ‘‘End item’’;
‘‘High performance magnet’’;
‘‘Produce’’; ‘‘Qualifying country’’;
‘‘Required form’’; ‘‘Specialty metal’’;
‘‘Steel’’; and ‘‘Subsystem’’.
■ c. Revising the definition of
‘‘Produce’’ in paragraph (a) to read as
follows:
Kortnee Stewart,
Editor, Defense Acquisition Regulations
System.
252.225–7009 Restriction on Acquisition
of Certain Articles Containing Specialty
Metals.
Therefore, DoD amends 48 CFR part
252 as follows:
*
■
V. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
1. The authority citation for part 252
continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
Chapter 1.
252.212–7001
252.244–7000
2. Section 252.212–7001 is amended
by—
■ a. Removing clause date ‘‘(FEB 2013)’’
and adding ‘‘(MAR 2013)’’ in its place;
and
■ b. In paragraph (b)(7), by removing the
clause date ‘‘(JUL 2009)’’ and adding
‘‘(MAR 2013)’’ in its place; and
■ c. In paragraph (b)(8), by removing the
clause date ‘‘(JUN 2012)’’ and adding
‘‘(MAR 2013)’’ in its place.
■ 3. Section 252.225–7008 is amended
by—
■ a. Removing clause date ‘‘(JUL 2009)’’
and adding ‘‘(MAR 2013)’’ in its place;
and
■ b. Removing the numerical
designations preceding the definition
headings of ‘‘Alloy’’; ‘‘Produce’’;
‘‘Specialty metal’’; and ‘‘Steel’’.
■ c. Revising the definition of
‘‘Produce’’ in paragraph (a) to read as
follows:
■
252.225–7008 Restriction on Acquisition
of Specialty Metals.
srobinson on DSK4SPTVN1PROD with RULES
*
*
*
*
(a) * * *
Produce means—
(i) Atomization;
(ii) Sputtering; or
(iii) Final consolidation of non-melt
derived metal powders.
*
*
*
*
*
■ 4. Section 252.225–7009 is amended
by—
■ a. Removing clause date ‘‘(JUN 2012)’’
and adding ‘‘(MAR 2013)’’ in its place;
and
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[Amended]
5. Section 252.244–7000 is amended
by—
■ a. Removing clause date ‘‘(JUN 2012)’’
and adding ‘‘(MAR 2013)’’ in its place;
and
■ b. In paragraph (b), by removing the
clause date ‘‘(JUN 2012)’’ and adding
‘‘(MAR 2013)’’ in its place.
■
[Amended]
*
*
*
*
*
(a) * * *
Produce means—
(i) Atomization;
(ii) Sputtering; or
(iii) Final consolidation of non-melt
derived metal powders.
*
*
*
*
*
[FR Doc. 2013–07107 Filed 3–27–13; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 120313185–3252–01]
RIN 0648–BC01
Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery;
Trawl Rationalization Program;
Reconsideration of Allocation of
Whiting
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: This action revises several
portions of the Pacific Coast Groundfish
Fishery Trawl Rationalization Program
(program) regulations in response to a
court order requiring the National
Marine Fisheries Service (NMFS) to
reconsider the initial allocation of
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Pacific whiting (whiting) to the
shorebased individual fishing quota
(IFQ) fishery and the at-sea mothership
fishery. Additionally, NMFS concludes
after review of public comments and the
record as a whole, that the Pacific
Fishery Management Council’s
(Council’s) recommendation to maintain
the existing initial allocations of whiting
is consistent with the MagnusonStevens Fishery Conservation and
Management Act (MSA), the Pacific
Coast Groundfish Fishery Management
Plan (Groundfish FMP), and other
applicable law. This final rule will
affect the transfer of quota share (QS)
and individual bycatch quota (IBQ)
between QS accounts in the shorebased
IFQ fishery, and severability of catch
history assignments (CHAs) in the
mothership fishery, both of which will
be allowed on specified dates, with the
exception of widow rockfish. Widow
rockfish is no longer an overfished
species and transfer of QS for this
species will be reinstated pending
reconsideration of the allocation of
widow rockfish QS in a future action.
The divestiture period for widow
rockfish QS in the IFQ fishery will also
be delayed indefinitely.
DATES: This rule is effective April 1,
2013.
ADDRESSES: Information relevant to this
final rule, which includes a final
environmental assessment (EA), and a
final regulatory flexibility analysis
(FRFA), including a regulatory impact
review (RIR), are available from William
W. Stelle, Jr., Regional Administrator,
Northwest Region, NMFS, 7600 Sand
Point Way NE., Seattle, WA 98115–
0070. Electronic copies of this final rule
are also available at the NMFS
Northwest Region Web site: http://
www.nwr.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Ariel Jacobs, 206–526–4491; (fax) 206–
526–6736; [email protected].
SUPPLEMENTARY INFORMATION:
Background
This final rule revises several
provisions of the Pacific coast trawl
rationalization program and supersedes
regulatory delays and/or revisions
NMFS established through temporary
emergency action in a final rule
published on August 1, 2012 (77 FR
45508), and extended on January 17,
2013 (78 FR 3848). Specifically, this
action will:
(1) Allow transfer of QS or IBQ
(except for widow rockfish QS) between
QS permit holders in the shorebased
IFQ fishery beginning January 1, 2014;
(2) Require QS permit holders in the
shorebased IFQ fishery holding QS or
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IBQ in excess of the accumulation limits
to divest themselves of excess QS
(except for widow rockfish QS) or IBQ
by November 30, 2015;
(3) Allow limited entry trawl permit
holders in the mothership fishery to
request a change (or transfer) of
mothership/catcher vessel (MS/CV)
endorsement and its CHA beginning
September 1, 2014;
(4) Require MS/CV endorsed limited
entry trawl permit owners to divest
themselves of ownership in permits in
excess of the accumulation limits by
August 31, 2016; and
(5) Extend the divestiture period
delay and moratorium on transfer of
widow rockfish QS in the shorebased
IFQ fishery indefinitely.
Each of these elements, along with
additional background information,
were described in detail in the proposed
rule (78 FR 72, January 2, 2013), and are
not repeated here.
NMFS Decision on Reconsideration of
the Initial Allocation of Whiting
NMFS has determined that the
Council’s recommendation to maintain
the existing initial whiting allocations
(No Action Alternative) is consistent
with the MSA, the Groundfish FMP, the
court’s order in Pacific Dawn v. Bryson,
No. C10–4829 TEH (N.D. Cal.) (Pacific
Dawn), and other applicable law. This
determination is based on NMFS’
review of the entire record, including
the Council’s record and NMFS’
consideration of comments received on
the proposed rule. After considering the
required statutory factors and the goals
and objectives of the trawl
rationalization program and the
Groundfish FMP, NMFS has determined
that the existing initial whiting
allocations provide for a fair and
equitable allocation to the shorebased
IFQ program and the mothership coop
program. These initial allocations of
whiting take the form of QS for both
harvesters and processors in the
shorebased IFQ program, and CHA for
harvesters in the mothership fishery.
For the purposes of this action, ‘‘quota’’
is used to describe allocations of both
CHA and QS to harvesters in the
shorebased IFQ and mothership
fisheries, as well as to describe
allocation of QS to shoreside processors.
In the context of the relatively narrow
remand ordered by the court in Pacific
Dawn, NMFS has determined that many
MSA factors show minimal differences,
or none at all, between the alternatives
under consideration. Additionally,
where there are differences, they are
tempered by the relatively modest shifts
in quota among the various alternatives
and other relatively minor variations
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that result. For example, comparing the
No Action Alternative to the alternative
most favoring recent history (Alternative
4) reveals overall modest shifts in quota
from status quo holders to others (17%
for shorebased harvesters, 3% for
shoreside processors, and 18% for
mothership harvesters) and generally
modest shifts among most individual
permit holders and processors. This is
principally the result of the fact that a
majority of participants in the whiting
fishery have generally continuous
participation in the fishery. Given this,
and in balancing the various factors in
this decision (including control date,
investment and dependence, disruption,
efficiency, employment, current and
historic participation, communities),
NMFS has concluded there are
fundamental and compelling reasons to
maintain the existing initial allocations
of whiting. Of most importance,
maintaining existing allocations takes
into account the intent of the 2003
control date and principal policy goals
of the trawl rationalization program
(including reducing overcapitalization
and ending the race for fish).
Maintaining status quo also reduces
concentration of quota among
participants and achieves a wider
geographic distribution of initial
program benefits. NMFS believes these
key factors, among other considerations,
outweigh the reasons supporting
alternatives that favor more recent
history (e.g., recognizing recent fishery
participants’ dependence and
investments, reducing future quota
leasing or acquisition costs, reducing
quota to recent non-participants, and
reflecting more recent market and
fishery conditions). More detailed
discussion on the specific statutory
factors under MSA section
1853a(c)(5)(A) and related provisions is
set forth in the preamble to the
proposed rule and not repeated here.
Maintaining the initial whiting
allocations, including the use of
qualifying years of 1994–2003 for
whiting harvesters and 1998–2004 for
whiting processors, supports the
Council’s and NMFS’ efforts to reduce
overcapitalization and end the race for
fish by not rewarding increases in
harvesting or processing that occurred
after the end of the qualifying periods
(i.e., after the 2003 control date). The
existing whiting allocations also support
the importance of the control date for
this and future rationalization programs,
minimize the concentration of harvester
quota, and provide for a wider initial
geographic distribution of the program
benefits along the coast and the
corresponding fishing communities.
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Importance of the Control Date
Two fundamental purposes of
Amendment 20 were to reduce
overcapitalization in the groundfish
fishery and to end the race for fish. The
Council adopted and announced the
2003 control date to further these
purposes, seeking 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. Since the
original notice of the 2003 control date
in the Federal Register on January 9,
2004 (69 FR 1563), there has been
continuous and systematic work to
develop the trawl rationalization
program. Throughout the
reconsideration, many participants
testified or provided written comment
with respect to how the announcement
of the control date affected their
business decisions. NMFS
acknowledges that a control date is not
a guarantee that any specific period will
count toward initial allocations. NMFS
believes, however, that recognition of
the business and investment decisions
made by participants who interpreted
the control date as signaling the likely
end of the qualifying period is
consistent with the fundamental
purposes of Amendment 20. While no
mechanism exists to separate
speculative from non-speculative effort
after the control date, maintaining the
control date for harvesters does not
reward any speculative behavior after
the control date and does not penalize
those who honored the control date.
Additionally, an important signal is sent
for future programs (nationally as well
as on the Pacific Coast)—the use of
control dates is still a valid tool to deter
increases in effort or capitalization that
would undermine conservation and
management goals pending
development of a limited access
privilege program.
Moreover, for processors, the record
establishes valid reasons to end the
qualifying period for processors one
year after the 2003 control date,
including accounting for processor
investments that took place prior to the
announcement of the control date but
that did not begin to earn processing
history until 2003 and 2004. In addition,
the purpose of applying control dates to
onshore processors, while important, is
not necessarily as significant as for
harvesters, who have a greater ability to
move into and out of various fisheries
to gain potential fishing history. These
factors, in addition to the fact that it was
not clear until 2005 that the 2003
control date potentially applied to
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processors, support the decision that a
one year shift, to 2004, was a reasonable
cutoff date for processors.
While maintaining the end of the
qualifying periods necessarily excludes
providing credit for more recent
participation, publication of the control
date and the continuous and active
deliberation of the Council provided
notice to all participants that this was a
possibility. Thus, those participants
who did increase their investments or
effort in the fishery were on notice that
any history established in later years
might not count towards initial
allocations. Additionally, participants
had the opportunity to purchase permits
from others to bolster their catch history
totals to potentially reflect their
increased investments and effort (as the
record reflects did occur). The fairness
of maintaining the initial cut-off dates
also is reflected in the public comments
of participants that supported No Action
Alternative despite the fact that they
would receive higher levels of quota if
an alternative favoring more recent
history were adopted.
Although the length of time between
the original control date and the agency
approval in 2010, implementation of the
program in 2011, and this decision in
2013 is longer than the time span in
most programs that announce control
dates, this is explained by the
complexity of the program, which
resulted in significant time needed to
involve the public and fishery
participants, develop alternatives,
develop appropriate analytical
documents, reach a final decision,
implement that decision, and then
engage in this reconsideration process.
Additionally, the Council and NMFS
have fully considered all applicable
fishing and processing history for this
decision, leaving no gap in the available
information considered.
Minimize Concentration of Quota
The record reflects that basing initial
whiting allocations on alternatives that
include more recent history would
generally have the effect of
concentrating quota for harvesters in
fewer hands, creating fewer winners and
more losers compared to maintaining
the existing allocations (see EA, Section
4.5.3.2 and FRFA). Moreover, when
viewed in the context of the trawl
rationalization program as a whole,
moving the end date of the qualifying
period to a more recent year could have
the effect of creating ‘‘double-dip’’ gains
and losses for certain participants due to
having different allocation periods for
whiting compared to some non-whiting
species. For example, there were seven
permits that, after 2003, reduced their
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share of harvest in the non-whiting
fishery while increasing their share in
the whiting fishery (see EA, Section
2.2.3.2). Using an allocation period
other than the No Action Alternative
would benefit those participants with
more whiting history in recent years
because they would receive an amount
of non-whiting quota allocated under a
2003 cut-off while simultaneously
receiving increased whiting quota (i.e.,
double-dipping) if a later end year was
used for whiting allocations, creating
inequities in the allocation of target
species.
Wider Geographic Distribution of the
Initial Benefits of the Program
The record reflects that maintaining
the existing allocations would provide a
more even distribution of initial whiting
allocations along the coast and to the
corresponding fishing communities.
Shifting to alternatives favoring more
recent history could contribute to a
northward shift in initial quota
distribution, and accordingly a similar
shift in any benefits stemming from that
initial allocation (see EA, Section 4.3.3).
The northward shift is expected to be
relatively small (less than 8 percent of
the total quota—2 percent for processors
and 6 percent for harvesters between the
No Action Alternative and Alternative
4), and the analysis shows whiting
landings have been shifting northward
in recent years (due to fish availability
and investments in ports). Although the
8 percent difference is relatively
modest, NMFS believes that
maintaining the initial whiting
allocations supports historic fishing
communities in more southern locations
and creates a wider geographic
distribution of the initial benefits
associated with allocations. Maintaining
initial whiting allocations would further
support one of the guiding principles in
the development of Amendment 20 (see
Am 20 EIS, Section 1.2.3)—to minimize
negative impacts resulting from
localized concentrations of fishing [and
processing] effort. For processors, in
addition to the distribution of wealth
associated with initial allocations, the
wider distribution of initial allocation of
whiting QS may provide some
additional influence over where
deliveries are made along the coast than
if the initial allocation were based on
more recent qualifying years that would
shift allocations and potentially
landings northward.
Comments and Responses
In the proposed rule, NMFS solicited
public comments on the regulatory
revisions and on NMFS’ preliminary
determination that the Council’s
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recommendation to maintain the initial
allocations of whiting for the shorebased
IFQ fishery and the at-sea mothership
fishery is consistent with the MSA, the
Groundfish FMP, and other applicable
law. The comment period ended
February 1, 2013. NMFS received 19
written comments on the proposed rule
reflecting comments from individuals,
organizations and other agencies. NMFS
also received oral comments regarding
the existing initial whiting allocations at
a meeting during the comment period.
The U.S. Department of the Interior
submitted a letter indicating that it had
no comment. One written comment also
addressed the proposed regulatory
revisions. The comments received and
NMFS’ responses are below.
Process
Comment 1: NMFS has the
responsibility of reviewing the record as
a whole and ensuring that the action is
consistent with the Groundfish FMP
and the MSA. NMFS must not simply
defer to the Council.
Response: NMFS agrees that it must
make the final decision and cannot
simply defer to the Council with respect
to whether the recommendation to
maintain the existing initial whiting
allocations and make associated
regulatory revisions is consistent with
the Groundfish FMP, the MSA,
including the national standards, and
other applicable law. NMFS has taken
its own hard look at the entire record,
including public comment on the
proposed rule, and determined that this
action satisfies those requirements.
Comment 2: The public
reconsideration process was thorough,
lengthy, open, and transparent. To make
appropriate decisions, Council members
need stakeholder involvement and the
Council reviewed and heard numerous
public comments and advisory body
statements from various perspectives. In
addition, the majority of Council
members that participated in the
reconsideration were not members of
the Council when it took its original
action in 2008, which allowed for
thorough review of the fairness and
equity of that decision.
Response: NMFS agrees that
stakeholder involvement is the
foundation of an open public Council
process and is an important component
of decision making, especially with
respect to allocations. The Council,
including NMFS representatives,
reviewed and considered many
comments from various perspectives at
Council meetings and NMFS has further
considered stakeholder input through
the comments received on the proposed
rule.
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Comment 3: It is unclear what role the
NOAA Catch Share Policy played in the
reconsideration of initial whiting
allocations. Further, based on the
section of the NOAA Catch Share Policy
entitled ‘‘evaluating catch share
applicability,’’ three of the
characteristics for use in determining
whether a fishery is a suitable candidate
for a catch share program—
overcapitalization, overfished stocks,
and bycatch—do not appear to be
present in the whiting fishery in 2010
and therefore it is unclear whether the
whiting fishery was a good candidate for
a catch share program.
Response: NMFS considered the
NOAA Catch Share Policy (the Policy)
as part of the reconsideration. Generally,
the Policy recommends that allocations
be revisited on a regular basis and that
an allocation decision should include
consideration of conservation,
economic, and social criteria in
furtherance of the goals of the
underlying FMP. The reconsideration of
initial whiting allocations reflected
consideration of the factors identified in
the Policy. The decision to include
whiting in the trawl rationalization
program was approved in Amendment
20 and implemented in 2011. NMFS
also considered provisions of the Policy
at that time. Amendment 20 was
developed to address among other
things, overcapitalization, overfishing,
and bycatch, including bycatch of
overfished species, in the groundfish
trawl fishery (75 FR 78344). The
decision to include the whiting fisheries
as part of the trawl rationalization
program is not part of the
reconsideration of initial whiting
allocations or this rule.
Comment 4: Consideration of a factor
means that it must be weighed and
taken into account, not noted and
ignored. NMFS must provide a reasoned
analysis that connects the factor with
the decision it makes with respect to
initial whiting allocations.
Response: NMFS agrees that
consideration of a factor entails more
than noting its existence. However,
when making an allocation decision, the
factors that must be considered do not
require any particular outcome. For
example, the requirement to consider
current harvests when establishing a fair
and equitable initial allocation does not
mandate that the qualifying periods for
initial whiting allocations be expanded
to include years beyond the existing cutoffs. As the record demonstrates, there
is a rational basis for excluding more
recent years from the qualifying periods.
The existing initial allocations further
the goals and objectives of Amendment
20 and avoid rewarding increases in
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harvesting or processing at a time when
the fishery was overcapitalized, and a
time after participants were aware that
history beyond 2003 may not qualify for
use in an allocation formula.
Current and Historical Harvests
Comment 5: More recent years should
be used in the qualifying period for
allocating whiting to processors to
reflect changes in the marketplace. The
whiting market has changed since the
end of the existing qualifying periods,
specifically with the growth of the
market for the whiting headed and
gutted product. The changes made the
fishery more efficient and economically
stable after 2004, so more recent years
should be more heavily weighted to
establish a fair and equitable allocation.
Response: NMFS agrees that there
have been changes in the markets for
whiting. These changes have led to
changes in the amounts and types of
product made out of whiting. Since the
early 1990s, shorebased processors have
converted whiting into headed and
gutted (H&G), surimi, fillets, and fish
meal products. In the early 1990s, there
was a much greater emphasis on surimi.
New plants came on line in response to
the demand for surimi caused by the
phase out of Japanese and Korean fleets
off the U.S. and Russian waters. In
recent years there has been a much
greater emphasis on H&G products,
sparked by the increased world demand
for H&G products. In the early 1990s,
the market for H&G products was a
limited domestic market and now the
H&G market is international.
The surimi market has declined,
based on changes in the Japanese and
Korean demand and from foreign
competition. As a result, surimi plants
have either shut down or reduced
production. Prior to 2004, up to five
plants were producing surimi.
Currently, there is only one shorebased
plant that is producing whiting surimi
and that plant is also producing H&G
products.
In response to changing world
markets, company restructuring, and
other factors, there has always been
entry and exit within the whiting
processing sector. There have also been
changes in relative prices of products
that in turn determine the mix of
various products. Underlying both the
development of the surimi processing
capacity, and now H&G processing
capacity, have been declining trends in
world groundfish production.
Overall, the major companies of the
processing industry that existed prior to
2004 still exist in 2012. For companies
that no longer exist, the quota that
would have been allocated to those
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entities has been distributed to existing
companies in proportion to the size of
their quota allocations under the
existing initial allocations. NMFS
recognizes the influence of H&G prices
and the new world markets, but does
not believe these changes should result
in selecting an alternative that includes
more recent years in the whiting
allocation formula, as all companies are
partaking in the expanded market for
H&G whiting and can continue to do so
irrespective of the amount of the
whiting QS received by that entity.
Furthermore, recent entrants into the
processing sector entered at a time when
they could benefit from the expanded
market for H&G whiting, which could
allow them to be competitive despite
receiving no, or a lesser amount, of an
initial whiting allocation. They also
entered at a time after the control date
had been announced and while the
Council was actively pursuing
development of the trawl rationalization
program. NMFS believes that it is fair
and equitable to use qualifying years
that more heavily reflect the
investments and processing history that
occurred prior to 2004, consistent with
the intent of discouraging speculative
increases in capacity and minimizing
disruption to processors that invested
under the old management regime prior
to the Council beginning its efforts to
rationalize the fishery.
Comment 6: Using more recent years
in the qualifying period promotes
conservation because larger fish tend to
occur in northern waters, and northern
processors have a better opportunity to
process larger and higher quality fish.
Under alternatives that would shift
more quota to the north, fewer larger
fish can be harvested, leaving more fish
in the water to spawn and sustain the
fishery. Using more recent years would
also promote conservation because H&G
product has higher recovery rates than
surimi product which dominated the
whiting fishery in earlier years.
Response: NMFS agrees that northern
processors may have a greater
opportunity to process larger and higher
quality fish. However, NMFS disagrees
that using more recent years promotes
conservation to any meaningful extent.
Any conservation benefit associated
with the alternatives is extremely small
and highly speculative, and does not
justify selecting an alternative that uses
more recent years when considered in
light of all the factors.
The EA analyzes the potential
biological impacts associated with the
alternatives that were considered.
Generally, for whiting, harvesting a
larger proportion of older fish in any
given year is likely to have an upward
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influence on stock productivity relative
to harvesting the same amounts of
whiting with a smaller proportion of
older fish. In an extreme hypothetical
where all harvests were delayed until
September of each year—when whiting
are typically larger and located further
to the north—a 10 percent increase in
stock productivity was projected when
compared to having all harvest
occurring in April.
In contrast, the amount of quota that
could initially be shifted geographically
and potentially result in changes in the
location of harvest is much smaller than
in the all-harvest hypothetical above. To
begin, the allocation alternatives are
unlikely to affect the location of harvest
in the mothership fishery or the catcher/
processor fishery because these fisheries
are not tied to a need for shorebased
processing. Together, the mothership
and catcher/processor fisheries are
allocated 58 percent of the non-tribal
commercial allocation (24 percent for
the mothership sector and 34 percent for
the catcher-processors). Of the
remaining 42 percent of the non-tribal
commercial allocation given to the
shorebased IFQ fishery, the allocation
most likely to have any short term
effects on geographic area of harvest is
the QS issued to processors, which is a
maximum of 20 percent of the 42
percent allocated to the shoreside
fishery, or 8.4 percent of the non-tribal
commercial whiting allocation. The EA
also indicates that the effects of initial
allocations on the distribution of fishing
among communities are difficult to
predict because over the long term quota
will likely move toward those ports
where profit margins tend to be the
highest, regardless of the initial
allocations (see EA Section 4.3.3). Using
the 10 percent hypothetical result as a
maximum, and applying that result to
the 8.4 percent of the non-tribal
commercial whiting allocation to
processors, results in an upper bound
on the impact on stock productivity of
less than 1 percent. Even this is likely
an overstatement, however, given that
only a relatively small amount of the
quota actually shifts to more northern
based processors when comparing the
No Action Alternative to Alternative 4
(which most favors recent history).
NMFS also notes that when adding
Canadian and Tribal fisheries to the
analysis, the potential for conservation
benefits becomes smaller. For 2011, the
total U.S. and Canadian Total Allowable
Catch (TAC) limit was 393,751 mt. The
U.S. portion of the TAC was 290,903 mt,
which includes the U.S. shorebased
allocation of 92,818 mt. The 20 percent
of shorebased whiting QS allocated to
processors is approximately 5% of the
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U.S. and Canadian coastwide TAC.
NMFS further notes that depending on
the strength of the year classes, it may
be difficult, even in the northern portion
of the fishery, to avoid small fish (see
Status of the Pacific hake (Whiting)
stock in U.S. and Canadian Waters in
2012, International Joint Technical
Committee for Pacific Hake, Final
Document 2/29/2012, pages 27–28,
http://www.nwr.noaa.gov/fisheries/
management/whiting/
pacific_whiting.html).
The EA concludes that given the
relatively small amount of quota that
may be reallocated among geographic
regions, the fact that QS trading will
likely change geographic distribution
regardless of the initial allocations, and
considering fleet mobility, the effect of
the initial allocations on area of harvest
and resulting biological impacts are
negligible. Additionally, even assuming
recovery rates for H&G products are
greater than those for surimi, NMFS
does not anticipate that initial
allocations to processors will have a
significant influence on the type of
whiting products produced by
processors, especially in the long term.
As a result, there does not appear to be
a difference in conservation among the
alternatives in terms of product
recovery. Also see response to comment
5 addressing the transition from surimi
to H&G for the whiting fishery.
In sum, selecting an alternative that
uses more recent years in the qualifying
period is not justified based on
differences in biological impacts and
NMFS believes that other considerations
justify maintaining the existing initial
allocations.
Comment 7: The purpose of
considering current and historical
harvests for processors is that it allows
a council and the Secretary to consider
the relative value of investments made
in processing capacity early in the
development of a fishery compared to
the value of investments in processing
made late in a fishery that is already
heavily overcapitalized. This is one of
the considerations that should go into
the decision of which years of
processing participation are best used
for fair and equitable allocations to
processors.
Response: NMFS agrees and has
concluded that investments in
processing capacity made earlier in the
fishery should be more heavily taken
into account when determining the
initial allocation qualifying periods.
This is in part because the allocation of
quota to processors was intended to
minimize disruption to processors that
had invested under an expectation of
operating under the pre-Amendment 20
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fishing regime, and also because any
investments made after the
announcements of the control date were
made at a time when it was evident that
the Council was actively pursuing an
effort to rationalize the trawl fishery.
Dependence, Investment, Participation,
and Latent Permits
Comment 8: A significant portion of
quota was allocated to permits that had
no history of landings in the fishery
after 2003. The EA indicated that
allocations went to 21 permits that had
no participation in the shorebased
whiting fishery during the seven years
between 2004 and 2010, representing
10.2% of the shorebased whiting quota.
Furthermore, the EA also identified that
whiting allocations went to 14 permits
(representing 9.6% of the quota
allocated to the mothership sector) that
had no participation in the mothership
sector during the same seven years
between 2004 and 2010. Considering the
number of permits that received quota
but have not participated in the fishery
since 2003, it is evident that the existing
qualifying periods were based at least
partially on some industry members’
desire to sell their quota and retire. The
initial allocations should instead be
based on what is best for those currently
participating. When considering
investment as a measure of dependence,
NMFS should focus only on whiting
and not on other fisheries.
Response: NMFS acknowledges that
quota was allocated to some permits
that did not directly participate by
harvesting or landing whiting in the
whiting fishery in the years between
2004 and 2010. However, NMFS does
not believe that this fact warrants
including more recent years in the
qualifying period because many of the
permit owners owned other permits that
were active in the whiting fishery
during those years, participated in other
fisheries including other sectors of the
whiting fishery, or held those inactive
permits as an investment.
Groundfish fisheries on the West
Coast are frequently prosecuted based
on a ‘‘portfolio’’ approach where
fishermen participate in various sectors
or corollary fisheries throughout a given
year and between years to maximize
benefits. To the extent permits received
quota but did not actively participate in
West Coast fisheries during the years
referenced, the quota was still allocated
to the permit owner at the time of initial
allocation and reflects the investment of
the participant in the permit. As
discussed in the EA, a limited entry
trawl permit is a highly fisherydependent investment that must be
renewed annually. Public comment,
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both at the Council meetings and
through comments on the proposed
rule, also indicated that some fishermen
actively chose to invest in permits in the
hope that they would receive initial
allocation quota amounts that would
accommodate their intended fishing
strategies. As noted in public comment
on the proposed rule in support of the
existing allocations of whiting, the
initial harvester allocation to current
permit owners recognizes recent
participation and investments in the
fishery. After the 2003 control date, 18
permits were sold to new permit owners
and the permit’s catch history went to
those new permit owners. Another
commenter made a similar comment
that business decisions were made to
retire vessels after the control date
rather than investing in vessel upgrades
and maintenance, with the
understanding that the intent of the
program was to promote consolidation
within an overcapitalized fishery.
Furthermore, as discussed below, when
considering permits that were truly
inactive in either the shorebased or
mothership sectors of the whiting
fishery after 2003, only approximately
1.5 percent of the history based quota
was allocated to those permits. Finally,
the topic raised by the commenter
regarding the business decisions made
by those who acquire QS through initial
allocation (e.g., whether to sell or lease
that quota to another participant or
eventually sell the QS/CHA once it
becomes transferable) are present
irrespective of the qualifying period
chosen.
With respect to inactive permits being
owned by an entity that also actively
participated in the whiting fisheries
through the use of other permits, for
shorebased whiting permit QS
allocation recipients, 4 of the 21 permits
referenced by the commenter were
owned by entities that also controlled
other shorebased whiting permits.
Those four permits received No Action
QS allocations totaling 2.35% (i.e., 2.9%
of the total shorebased whiting
allocation to permits). Similarly, 4 of the
13 permits referenced by the commenter
(the EA demonstrates there were 13
rather than 14 as stated in the comment,
Section 4.5.2.1) that received CHA were
owned by entities that also control other
MS whiting permits. Those four permits
received No Action CHA allocations
totaling 3.8% (i.e., 3.8% of the total MS
whiting CHA allocation to permits). In
addition, for permits that received either
shorebased whiting QS or mothership
CHA allocations, there were a total of 15
permits that had no shorebased whiting
or Mothership whiting history after
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2003. Those 15 permits received No
Action Shorebased whiting QS
allocations totaling 3.8% (i.e., 4.75% of
the total shorebased whiting allocation
to permits), and No Action Mothership
CHA allocations totaling 1.46% (i.e.,
1.46% of the total MS whiting CHA
allocation to permits). Six of those 15
permits were owned by entities that also
controlled other shorebased whiting
permits. Those six permits received No
Action shorebased whiting QS
allocations totaling 2.46% (i.e., 3.1% of
the total shorebased whiting allocation
to permits). None of the 15 permits were
owned by entities that also controlled
other MS/CV whiting permits. When
looking at the whiting fishery as a
whole, only 1.46% of the CHAs and
only 1.65% of the shorebased QS was
allocated to permits that were truly
latent in both the mothership and
shorebased sectors. NMFS defines
‘‘truly latent’’ permits as those that
received either mothership CHA or
shorebased quota share allocations
where the permit itself was not fished
in either the mothership fishery or the
shoreside whiting fishery, and the
owner of the permits also did not fish
other owned permits in the mothership
or shoreside whiting fishery after 2003.
Additionally, after accounting for
participation in other fisheries,
including those off Alaska, there were a
total of only nine permits (shorebased or
mothership) where the owner
apparently had no fishing activity off
the West Coast or Alaska after 2003.
These nine permits translate into only
1.3 percent of the shorebased QS and
1.0 percent of the mothership catch
history assignment used for the 2011
and 2012 fisheries.
Accordingly, the existing allocations
allocate only a very small portion of
quota to permits that are held by owners
that did not participate in whiting, West
Coast, or Alaskan fisheries or own other
permits that did participate after 2003.
Comment 9: NMFS seemed to have
difficulty defining dependence although
the meaning of dependence in the MSA
is clear and means to rely upon the
fishery for financial support and
income. Also, it is not fair and equitable
to give quota to permits which, based
upon the available objective
information, did not participate in the
fishery for some time and arguably no
longer demonstrate any financial
dependence on the fishery.
Response: NMFS did not have
difficulty defining dependence in the
proposed rule. In the proposed rule,
NMFS noted that the MSA does not
provide a definition of dependence,
provided an explanation of the meaning
of dependence, and noted that factors
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related to dependence may be measured
in numerous ways. As stated, in general
terms, dependence upon the fishery
relates to the degree to which
participants rely on the whiting fishery
as a source of wealth, income, or
employment to financially support their
business. Current harvests, historical
harvests, levels of investment over time,
and levels of participation over time are
all aspects of dependence, as they can
all be connected to the processes that
fishers and processors use to generate
income. For purposes of this decision,
NMFS believes that including all
potential sources of income in assessing
the level of dependence is appropriate.
NMFS also considered the Council’s
approach as discussed in Section 5.4.2
of the EA. The EA cites the NOAA
technical memorandum ‘‘The Design
and Use of Limited Access Privilege
Programs,’’ (Anderson and Holliday
2007), which notes that ‘‘various
measures of dependence on the fishery
[exist] including percent of revenue or
opportunities to participate in other
fisheries, and inter-relations with other
fishery related business especially with
respect to employment.’’ The existing
initial allocations do not provide history
based quota to harvesters after 2003 or
processors after 2004. As described
above, that does not mean that
investment and dependence during that
period were ignored. Rather, the issue of
investment and dependence for more
recent years has been thoroughly
explored, and there are valid policy
reasons for excluding those years as
discussed elsewhere. One important fact
to recognize is that most current
harvesters and processors in the fishery
were also historical participants during
the qualifying periods for initial
allocation, and the shifts in quota
among the initial allocation alternatives
considered were relatively modest
overall and for a majority of the
participants. Permit owners receiving
initial allocation received quota
reflecting their historic participation
and current permit ownership
(reflective of dependence and
investment) as well as a share of the
buyback quota that was equally
distributed.
Comment 10: Catch history years
should be 1994–2010 or 2000–2010 to
be fair and equitable and permits with
no active involvement after 2004 should
not be allocated whiting quota. Another
commenter stated that NMFS should
adopt 2000–2010 for the catch history
years and adopt a present participation
requirement that would require permits
to have landed at least 500 mt of
whiting in the period 2003–2010 to
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recognize the factors required for
consideration in allocation decisions.
Response: As discussed in the
preamble and in response to other
comments, NMFS has concluded that
excluding years beyond 2003 for
harvesters and beyond 2004 for
processors results in a fair and equitable
allocation. Selecting an alternative that
would include years beyond the existing
cut-offs would be contrary to the
policies underlying Amendment 20.
Requiring permits to have landed at
least 500 mt of whiting in the period
2003–2010 is not necessary to recognize
the factors required in consideration of
an allocation decision. Furthermore,
adopting a present participation
requirement for the period of 2003–2010
that would exclude any inactive permits
would be inconsistent with the
Groundfish FMP history since the
Council rejected ‘‘Use It or Lose It’’ rules
in 1994 relating to the development of
Amendment 6 to the FMP (adopting the
limited entry program). Similarly,
requiring a participation requirement
spanning the years after the
announcement of the control date
creates an incentive and a reward for
increasing participation at a time the
Council was attempting to address
overcapitalization. Finally, the
requirement suggested by the comment
could undermine decisions made
relative to investments in permits.
Comment 11: It is instructive that
other fishery management councils are
considering the problem of allocation of
quota to license holders with minimal
history or participation. The North
Pacific Council, in a February 2013
problem statement stated that
‘‘distributing shares with minimal
history may be argued to be inconsistent
with the requirement to allocate shares
based on fishery dependence.’’ Further,
in a footnote, the council paper noted
that acquisition of a permit ‘‘is clearly
an investment in the fishery,’’ but
‘‘reflects only an investment in a fishery
privilege, and not an investment in a
fishery operation.’’ (Citing Item C–3(b)
for the upcoming North Pacific Council
meeting).
Response: First, NMFS notes that the
Pacific Council and NMFS considered
investments in and dependence upon
the fishery in making this decision on
whiting allocation. Second, NMFS notes
that when fishery management councils
develop catch share or other programs,
councils may choose to weigh the
factors differently based on the specific
facts before them, including the factor of
dependence and investment. NMFS
notes that for purposes of the Pacific
groundfish fishery and the decision on
reallocation of initial whiting quota, a
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permit is viewed as a highly fishery
dependent investment. Permits have no
alternative use outside of accessing the
trawl fishery; therefore permit owners
are entirely dependent on the trawl
groundfish fishery for recovery of their
investment in permits. Other fishing
assets, such as vessels, have some value
in alternative uses.
Employment
Comment 12: Several commenters
addressed the issue of employment.
Some commenters expressed concern
that companies that have scaled down
their employment more recently would
qualify for more quota based on their
historical participation, while
companies with larger recent harvesting
and processing history will lose
employment if they cannot afford to
lease or buy quota. Another commenter
stated employment on catcher vessels
that benefitted from improved market
conditions during 2000–2010 will be
strongly disadvantaged given a 1994–
2003 qualifying period because their
quota shares will be less than their
participation in recent years. Another
commenter said 1994–2003 (status quo)
maintained, on average, their fleet’s
historic and current access to whiting,
their number of vessels, and their
number of crewmember jobs in both the
shorebased and mothership fisheries.
Another commenter noted the analysis
shows that overall the stability or level
of employment does not vary much
between all alternatives, including
status quo; however, there are
anticipated effects on individual fishing
businesses based on any change from
status quo.
Response: The final EA addresses
impacts to employment (see section
5.4.3.5). While there may be some initial
local shifts or variations in employment
among the alternatives, the analysis did
not anticipate notable variations in the
stability or level of employment overall.
As discussed elsewhere in the responses
to comments, the relatively modest
differences in the alternatives overall
and for a majority of individuals also
likely means even initial changes in
employment will be limited. Overall,
NMFS believes it has adequately
considered impacts to employment in
the harvesting and processing sectors in
arriving at its decision.
Leasing, Competitive Advantage, and
Efficiency Issues
Comment 13: Quota allocation to
processors can provide a significant
competitive advantage. Processors are
unique from harvesters in that their
investments are rooted to the
community and the local fisheries that
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support that community, making
dependence different for a processor
than for a harvester. Initial allocations
should use processing history from
2000–2010 because that period of time
captures current and historical harvests
and reflects a period of time when the
fishery had recovered from being
overfished and reached record revenues
for fishery participants. Some processor
companies made significant investments
over the last decade to upgrade their
facilities that supports using more
recent years.
Response: NMFS is aware that initial
quota allocation may provide
advantages to one processor over
another. However, given that the overall
amount of quota that may shift between
processors is only 3%, the degree of
competitive advantage or even its
existence depends on the business
decisions of the quota recipient and
numerous other considerations such as
processor location, presence of local
competition, access to markets, fleet
dynamics, and status of the whiting
stock, among other factors.
One main purpose of allocating 20
percent of the shorebased whiting quota
to processors was recognition of the
significant processing investments that
had been made in reliance upon the
fishery prior to the announcements of
the control date and the development of
Amendment 20. The allocation to
processors was, in part, an attempt to
minimize the disruption during the
transition to the new system and
provide some consideration and
measure of stability. (See EA section
10.1, statement of Mr. Anderson;
Amendment 20 EIS, Section 2.6.6).
NMFS and the Council acknowledge
that testimony indicated that
investments were made by some
processors after 2004, including
investments in infrastructure to process
other stocks, such as sardines. However,
it is reasonable to provide initial
allocations more heavily weighted to
reflect the investments and dependence
on the fishery that occurred prior to the
time it was evident that the Council was
pursuing a change to the management
system. Development of the trawl
rationalization program could be most
disruptive to processors that invested
prior to 2004 because the program was
likely to result in changes to the timing
of landings, and potentially result in
fewer vessels participating in the
fishery—part of the effort to reduce
overcapitalization. Given the
establishment of the 2003 control date
and subsequent clarification after the
2004 season that the 2003 control date
could apply to processors, businesses
that entered the processing sector or
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made investments after 2003 did so with
a degree of risk regarding receiving any
initial allocations or larger allocations.
NMFS recognizes that how quota is
initially allocated to processors has
some influence on the competitive
advantage of processors between
themselves and with respect to new
entrants, including the potential for
increased bargaining power with
harvesters. However, other processors
may have locational advantages whether
it is to infrastructure (e.g., cold storage
facilities, highways, water supply and
waste removal) or closer access to the
resource itself (some processing of
whiting has occurred in inland
locations). Northern processors, in
addition to being located closer to
where much of the harvest has recently
occurred, also have a locational
advantage in the sense that they have
more immediate access to tribal whiting
resources as tribal fisheries are located
in northern Washington. Since 2003,
one processor in particular has
processed over 99% of the tribal
shorebased whiting harvests.
Any competitive advantages
processors gain under the alternatives
are relatively modest given that the
entire allocation is only 20 percent of
the shorebased fishery. Overall, only 3
percent of the processor quota shifts
from status quo holders to others, and
the levels of shift among most
individual processors are similarly
modest, especially when compared to
overall volumes of fish processed and
revenues generated.
Additionally, although the effect is
relatively modest, based on the analysis
in the EA regarding the potential for
northward shift in quota, and public
comment relative to the competitive
advantages for processors from being
allocated quota, maintaining the
existing initial allocations rather than
selecting an alternative that uses more
recent years could also help mitigate
negative impacts resulting from
localized concentrations of fishing and
processing effort while providing the
initial allocations necessary for the
trawl rationalization program to
function.
Comment 14: One commenter stated
that five new processors entered the
fishery after 2004 and that NMFS failed
to explain why it is rational to exclude
these new entrants. For example one
processor that went out of business in
2000 received quota under the existing
allocations but a processor that began
processing whiting in 2006 and has
risen to become a significant player in
the whiting market received no quota.
Response: NMFS did not allocate
quota to processors that went out of
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business. For processors that would
have been allocated quota but did not
exist at the time of initial allocation,
that quota was distributed to the other
qualifying processors proportional to
their initial QS amounts. Any new
entrant after 2005 is in the same
situation as a new entrant in 2012, as
neither would have initially allocated
quota and would need to purchase or
lease quota if doing so was a desired
part of their business strategy. After the
2005 clarification that the 2003 control
date applied to processors, new entrants
were on notice that their history might
not count towards initial allocations.
NMFS notes that depending on how
processor is defined (e.g., company,
buying/processing site, etc.) the number
of new processor entrants after 2004
will vary. The EA notes that eight
processors entered the shorebased
whiting processing market for the first
time after 2004 and did not receive an
initial allocation, and of these eight
processors only two consistently
processed whiting since entering the
fishery.
Comment 15: The cost of leasing
quota was not appropriately analyzed or
considered. The added costs of
purchasing or leasing quota from
inactive permit holders is contrary to
National Standard 7, which states that
‘‘Conservation and management
measures shall, where practicable,
minimize costs and avoid unnecessary
duplication.’’ In addition, the costs
associated with increasing observer
costs, the Pacific Coast Groundfish
Fishery buyback program and the soon
to be implemented cost recovery
program are new costs that NMFS failed
to consider when making a decision as
to whether the initial allocation of quota
should be changed or not. The costs
associated with leasing quota will be
particularly constraining on smaller
businesses. Local small community
companies need whiting quota to keep
their businesses going. Larger
processing companies can afford to
lease or buy IFQ no matter what the
price. Smaller, family-owned vessels
will be lost over time to corporations
owning multiple vessels or other assets.
One of the commenters also made an
attempt to estimate the fair market
values and leasing costs of whiting
quota. The projections were
approximately as follows: value of
shorebased whiting allocated to the 21
permits that were reportedly inactive
during 2004–2010 is $8,500,000 and
that the annual cost of leasing this IFQ
is conservatively $680,000. For the
mothership sector, the fair market value
of the whiting quota allocated to the 14
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permits reportedly inactive during
2004–2010 is $4,320,000 and that the
annual cost of leasing this quota is near
$350,000.
Response: Leasing is an expected
activity in many fisheries. Before the
trawl rationalization program, limited
entry permits were being leased by
fishermen in order to gain access to
trawl fisheries. Consistent with the MSA
requirement to establish a policy and
criteria for transferability, through sale
or lease, of limited access privileges
such as whiting IFQ, 16 USC
1853a(c)(7), the ability to lease quota
was an element of the trawl
rationalization program analyzed and
adopted through Amendment 20. Some
level of leasing is expected under the
program. Leasing is expected in the
Shorebased IFQ Program in particular
given that 20% of the whiting catch
history-based quota of shorebased
harvesters was allocated to processors—
as a result many shorebased whiting
fishermen, especially those not strongly
affiliated with a processor, may have to
lease quota to return to pre-trawl
rationalization catch levels.
The environmental impact statement
for Amendment 20 (Amendment 20 EIS)
considered the economic condition of
the fishery, which was one of the
motivations for considering alternate
management approaches for the trawl
fishery. The Amendment 20 EIS also
considered efficient utilization of the
resource in the design elements of the
program, especially compared to the
previous trip limit management fishery.
It also weighed the costs and benefits of
such a program, including initial
allocations and leasing costs, on
different user groups such as harvesters,
processors, and potential new entrants
for the IFQ and MS fisheries (see
Amendment 20 EIS sections 4.4, 4.6.2.5,
4.6.3.4, 4.6.3.7, 4.7.2.3, 4.9.2.2, and
4.9.3.7). The issue of leasing costs was
also addressed in the final rule
implementing the trawl rationalization
program. (75 FR 60868, 74 October 1,
2010, Comment 27).
In addition to the Amendment 20 EIS,
the EA for the reconsideration of
whiting allocation weighed the costs
and benefits of allocation on different
user groups, including harvesters,
processors, potential new entrants, and
communities for the IFQ and MS
fisheries (see EA sections 4.3, 4.5.3, 5.4,
and 5.8). The EA also discussed costs of
leasing in other fisheries and potential
effects on Pacific groundfish fisheries
(EA section 3.3.2.6 and 4.5.3.1), and the
value of limited entry permits as an
investment whether actively fished in
recent years or not (EA section 3.3.2.5
and 4.3). Regarding leasing costs, the EA
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for this action recognized that leasing
costs will occur, that the benefits of the
program (which requires an initial
allocation) outweigh the costs, and that,
ultimately, quota will tend towards the
most efficient users, especially once
trading is allowed.
NMFS recognizes that those receiving
initial allocations may be placed at a
competitive advantage over new
entrants or existing participants who
must purchase more quota if they desire
to maintain their recent harvest levels.
(EA section 5.4). However, any new
costs associated with leasing also come
with new benefits—the opportunity to
acquire a desired amount of quota that
can then be harvested without
competing in a race for fish, along with
the other benefits anticipated under the
trawl rationalization program. The EA
demonstrates that quota was transferred
to many shorebased whiting fishermen
in 2011, allowing successful harvest
well in excess of some participants’
initial allocations. (EA section 3.3.2.7).
NMFS also considered the costs
associated with the buyback program
that was implemented in 2005 (70 FR
40225, July 13, 2005). The loan
associated with the buyback program
financed most of the cost of a fishing
capacity reduction program in the
Pacific Coast groundfish fishery and
corollary fisheries. To repay the loan,
participants in the Shorebased IFQ
Program and the MS Coop Program
currently pay five percent of the full
delivery value of fish harvested and
delivered to processors. In addition, the
MSA requires that cost recovery be a
component of a LAPP such as the trawl
rationalization program. Under the
proposed cost recovery program (78 FR
7371, February 1, 2013), participants in
the Shorebased IFQ Program and the MS
Coop Program would be required to pay
a fee, not to exceed three percent of the
ex-vessel value of fish delivered to
processors, to cover part of the costs of
management, data collection, and
enforcement of the trawl rationalization
program. Costs associated with the trawl
rationalization program, including the
costs of observer coverage, were also
considered in the Amendment 20 EIS,
section 2.6.3, A–2.3.3. NMFS notes that
the agency currently covers the majority
of the costs for observers off the West
Coast (but not the North Pacific). NMFS
also notes that there is a national effort
underway to explore the use of
electronic monitoring as one potential
tool to address the costs associated with
observers. See http://
www.nmfs.noaa.gov/sfa/reg_svcs/
Councils/ccc_2013/
K_NMFS_EM_WhitePapers.pdf.
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Although some alternatives could
more closely align initial allocation
amounts with recent levels of harvest
associated with a given permit, and
potentially minimize leasing costs to
those participants in the short term,
when balanced with the other
considerations, NMFS has determined
that the Council’s recommendation is
consistent with National Standard 7 and
minimizes costs to the extent
practicable. The costs associated with
the buyback program (which benefitted
the industry by helping to reduce the
level of overcapacity and substantially
expanded fishing opportunity for all
vessels, as reflected by higher trip
limits), the observer program, and the
statutorily required cost recovery
program, do not alter NMFS’
conclusion. NMFS notes that some
commenters felt that NMFS did
properly analyze and consider the
impact of the initial allocation on costs
and benefits, as required by National
Standard 7, and that status quo balances
costs and benefits by allocating to a
large amount of recipients with a
geographic spread among those that
received initial allocations.
The commenter that provided
estimates of fair market values of quota
and leasing costs used a multiplier of
3.75 applied to the ex-vessel value of
whiting to determine fair market value
of whiting QS. NMFS does not have
sufficient information to evaluate the
use of a multiplier of 3.75 to project the
value of quota, particularly as quota has
yet to be traded. However, the EA
considered that the ratio of QS to exvessel value ranged from 4:1 to 9:1 in a
Canadian groundfish trawl fisher might
be representative. Based on information
developed from quota pounds sold or
leased via the Jefferson State Trading
Company Web site (http://
jeffersonstatetradingco.com/cgi-bin/
auction/auction.pl), which tracks the
trading of quota pounds for this
program, the leasing ratio of 30% of the
ex-vessel value may be high but
representative. Even assuming that the
projections provided by the commenter
are accurate, it does not alter NMFS
conclusions for the reasons described
above and throughout this final rule.
In response to the comment about the
impacts of costs on smaller businesses,
and smaller, family-owned vessels, in
general, impacts of the allocation
decision on both small and large
businesses were considered, and
regulations are in place that attempt to
minimize any undue burden placed
upon small businesses (e.g.,
accumulation limits). As discussed
below in the summary of the final
regulatory flexibility analysis (FRFA),
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over the years 1998 to 2010, there were
17 processors that participated in the
fishery and that meet the recent
participation criteria of the various
alternatives. After taking into account
ownership and affiliation relationships,
there are 12 processing entities based on
Small Business Administration (SBA)
definitions. Of these 12 processing
entities, there are 9 small processing
entities and three large processing
entities that are affected by this rule.
The FRFA also notes that regardless of
the allocation alternative chosen some
small businesses will be affected.
As discussed in response to comment
14, although NMFS agrees that in some
circumstances the initial allocations of
quota could result in some degree of
competitive advantage, the degree of
that advantage is dependent on
numerous factors. Furthermore, owning
whiting QS is not required to process
whiting. New entrants or processors
with lower initial allocations may
choose to lease or purchase quota as
part of their business plans, but may
also use other methods to incentivize
delivery of whiting to their facilities.
Furthermore, any advantages processors
may gain under the alternative
considered are relatively modest given
the entire allocation is only 20 percent
of the shorebased whiting QS, overall
only 3 percent of the processor quota
shifts from status quo holders to others,
and the levels of shift among most
individual processors are similarly
modest, especially when compared to
overall volumes of fish processed and
revenues generated.
Comment 16: An article critical of the
effects of leasing in the Canadian
halibut fishery, ‘‘The elephant in the
room: The hidden costs of leasing
individual transferable fishing quotas,’’
Evelyn Pinkerton, Danielle N. Edwards,
Marine Policy 33 (2009) 707–713, was
not sufficiently considered in the
context of whether the existing
allocations are consistent with National
Standard 5, which states that
‘‘Conservation and management
measures shall, where practicable,
consider efficiency in the utilization of
fishery resources; except that no such
measures have economic allocation as
its sole purpose.’’ The failure to give the
most quota to the most active
participants through 2010 creates new
leasing costs and is not justified in
terms of economic objectives.
Response. NMFS considered the
article referenced by the commenters,
and its position that certain conditions
that allow for the efficiency benefits of
individual transferable quotas (ITQs) to
accrue are not present in the Canadian
halibut fishery; therefore, the authors
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argue in part that vessels operating with
initially granted quota are more
financially viable than new entrants and
can afford to pay higher quota lease fees,
eventually having the effect of bidding
up the lease price.
NMFS notes that there was also a
published comment in response to this
article questioning the article’s data and
assertions. (A rejoinder to E. Pinkerton
et al. The elephant in the room: The
hidden costs of leasing individual
transferable fishing quotas, Bruce R.
Turris, Marine Policy 34 (2010) 431–
436). One of the main conclusions of the
published response was that it would be
incorrect to suggest that quota will not
be transferred to the most economically
efficient operators. The commenter
noted that even with transaction costs
and other limitations, tradable quota
should move to more efficient operators,
and further noted that those who
initially start out with quota may be
more profitable than new entrants or
those that need to lease more quota, but
that issue is one of income distribution
and not an efficiency issue. The initial
authors published a short response to
the comment, asserting that the
commenter did not directly address the
major points of their article and that
their data analysis was appropriate.
(Ignoring market failure in quota
leasing? Evelyn Pinkerton, Danielle N.
Edwards. Marine Policy 34 (2010) 1110–
1114.)
The debate appears to be one of
whether the halibut program in Canada
is achieving efficiency at all or whether
the halibut program is more efficient
than the former derby style of fishery it
replaced. This debate is also about the
distribution of rent—who shares in the
profits or income generated in the
fishery. The debate is not whether there
have been efficiency gains, but whether
additional gains can be achieved.
Pinkerton claims they have not achieved
full efficiency because of market
inefficiencies and the lack of access to
capital for some participants. However,
it is not clear why participants who
were granted quota would not try to be
as efficient as possible and why they
would not get out and lease their quota
if they were less efficient. High lease
prices may suggest that efficiency is
high as owner operators are making high
profits and are unwilling to lease quota
to other fishermen unless the lease price
is at the level where it is more profitable
to lease than fish. In terms of the
reconsideration of initial whiting
allocations, these articles discuss the
effects of leasing, which was a
component of Amendment 20 and will
exist regardless of the years chosen for
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determining the allocation of quota. See
response to comment 15.
With respect to the net economic
benefit to the nation, the effects of the
alternatives are similar. The initial
allocation of whiting is a one-time
distribution of wealth in the form of QS
and CHA to members of the fishing
industry, which allows for
implementation of the program. In
addition to assisting existing
participants’ transition to the new
management system, the initial
allocation will likely affect harvester
and processor competitiveness. To the
degree that initial allocations match up
with the harvesters that will use the
quota, transition costs will be lessened.
However, whatever initial allocation
alternative is selected does not affect the
long-term efficiency and operation of
the fishery. In the short run, there may
be transition costs and disruption to
participants’ operations depending on
how closely the initial allocations are
distributed to the most efficient
participants. To the degree that initial
allocations match up with the harvesters
and processors that will use the quota,
transition costs and disruption will be
lessened as the fishery moves to its
long-term, more efficient state.
Regardless of the allocation alternative
chosen, it is unlikely that the initial
allocation will be that allocation that
represents the most efficient users.
NMFS does not currently know which
users are the most efficient and which
users in the future will be the most
efficient. Note that the biggest users of
the resource may not be the most
efficient users. Over the long term, it is
expected that operations will move, or
quota will be traded, to the ports in
which the highest profits can be earned,
taking into account all forms of costs
such as average distance to fishing
grounds and catch and bycatch rates.
With the choice of maintaining the
existing initial allocations over
alternatives that reflect more recent
history, NMFS and the Council are
providing to those who have historically
participated in the fishery (the majority
of which are also recent participants)
and are anticipated to have a better
chance to benefit from the market
processes described above. NMFS
considered how the short and long term
impacts of leasing may vary between the
alternative whiting allocations and has
concluded that the benefits of more
heavily favoring history prior to the end
of the existing qualifying periods
furthers the purposes of Amendment 20,
rewards investments and dependence
consistent with the policies underlying
announcing a control date, and
minimizes disruption to those
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participants that made business
decisions based on the assumption that
quota formulas were unlikely to include
more recent years.
With regard to the comment on
National Standard 5, the trawl
rationalization program was designed,
in part, to reduce fleet capacity and to
economically rationalize the groundfish
trawl fishery. Reducing excess capacity
is expected to improve the efficiency in
the utilization of fishery resources as
well as reduce the levels of incidental
catch. NMFS’ decision to maintain the
initial whiting allocations would not
change any of those program design
features that would allow more efficient
utilization of the resource, such as
reductions in fleet capacity, reduced
regulatory discards, and once the
moratorium is lifted, quota trading.
After considering the relevant factors,
including costs associated with leasing,
NMFS has determined that the existing
initial allocations consider efficiency in
the utilization of fishery resources,
where practicable, and are consistent
with National Standard 5.
Comment 17: The North Pacific
Council has recognized the problem of
absentee ownership of crab harvest
shares by persons or corporations with
little or no involvement in the
prosecution of the fisheries, which
limits the amount of quota available for
active participants in the Bearing Sea/
Aleutian Islands (BSAI) Crab
Rationalization Program. The same
problem exists in the Pacific whiting
fishery under the status quo allocations.
Response: NMFS agrees that the North
Pacific Council is considering the issue
of absentee ownership of crab harvest
shares, and notes that in its report of the
February 2013 North Pacific Council
meeting, the Council:
elected to take no further action considering
alternatives to define active participation
requirements for vessel owner harvest shares.
Currently, holders of those shares have no
ongoing requirement to remain active in the
fisheries as either vessel owners or
crewmembers. The Council also received a
discussion paper concerning the
development of cooperative measures to i)
promote share acquisition by action
participants; ii) address high quota lease
rates; and iii) ensure reasonable crew
compensation. Although the Council elected
to take no regulatory action, it expressed
concern with high lease rates, crew
compensation, and the availability of quota
shares to active participants in the fisheries.
To that end, the Council passed a motion
requesting that each cooperative in the
program submit a voluntary report annually
describing measures taken by the cooperative
to facilitate share acquisitions by active
participants and affecting high lease rates
and crew compensation * * *. The motion
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suggests that these reports be provided at the
Council’s October meeting.
News and Notes, North Pacific Fishery
Management Council, February 2013,
page 4, available at http://
www.fakr.noaa.gov/npfmc/
PDFdocuments/newsletters/
news213.pdf.
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Relative to the reconsideration of the
initial allocation of whiting, NMFS
acknowledges that in the future there
may be similar issues that need to be
considered and potentially addressed
during the five year review. However,
the crab rationalization program and the
Pacific groundfish trawl rationalization
program are significantly different and it
is not possible to predict that the issues
and potential solutions will be the same.
Comment 18. NMFS should
determine how many of the inactive, or
latent, permits from 2004–2010 actively
harvested their whiting allocations
during the post-rationalized fishery,
2011–2012.
Response: NMFS considered the
information in the final EA, which
shows the number of permits that did
not land fish in 2011. Information for
2012 was not available for use during
the reconsideration.
Comments on Control Date
Comment 19: Control dates are merely
advisory and do not obligate the Council
or NMFS to use them. The MSA does
not contain any overarching
considerations such as a control date
that trump the National Standards and
other statutory criteria. The control date
should not be used as a basis for
maintaining the existing initial
allocations.
Response: NMFS acknowledges that a
control date is not a guarantee that any
specific period will count toward initial
allocations. NMFS believes, however,
that recognition of the business and
investment decisions made by
participants who interpreted the control
date as signaling the likely end of the
qualifying period is consistent with the
fundamental purposes of Amendment
20, including reducing overcapacity.
Commenters supporting existing
allocations noted that it is important to
adhere to control dates to prevent
speculative increases in harvesting or
processing, and that doing so supports
a fundamental objective of the program
to address longstanding overcapacity
issues in both the harvesting and
processing sectors of the whiting
fishery. The overarching considerations
described in the propose rule reflect
consideration of the factors identified in
National Standard 4 and the MSA
provisions at 16 U.S.C. 1853a(c)(5)(A) in
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light of all relevant factors, including
the other National Standards and the
control date. After considering those
factors, and taking into account public
comment on the proposed rule, NMFS
has considered all of the factors related
to the initial allocations and has
concluded that use of the 2003 control
date as the cut-off period for harvesters,
and use of 2004 for processors is
rational. As described in the preamble
and in response to other comments, the
control date and the underlying policy
goals of Amendment 20, while
important, are not the sole basis for
NMFS’ decision.
Comment 20: While it was a lengthy
process between announcing the control
date and implementation, the process
was lengthy because of the complexity
of the trawl rationalization program,
including the allocation decisions The
control date could not be considered
‘‘stale’’ because there was no period of
inactivity between the control date and
implementation, there was no major
change in the broad policy fishery
managers were pursuing or in the
fundamental design of the program.
Response: NMFS agrees that the
control date is not ‘‘stale.’’ The EA
documents the extensive process
required for developing the trawl
rationalization program and the
numerous stages for stakeholder input.
(EA table 1–1, 1–2). Considering the
amount of time necessary to develop the
program, the length of time between the
control date and program
implementation, as well as this
reconsideration, is reasonable.
Furthermore, NMFS has not ignored the
years beyond the control date, but rather
has considered all the required
information, including harvests after
2003, in deciding to maintain the
existing initial allocations.
Comment 21: Not adhering to control
dates as announced when allocating
initial quota sets a dangerous precedent,
and could potentially result in increased
harvesting or processing capacity in an
attempt to increase the initial allocation
of quota in the development of future
limited entry or limited access privilege
programs (LAPPs). Relying on the
control date is consistent with National
Standard 4 and the groundfish FMP
management goals that list conservation
as the first goal, as well as the
Amendment 20 EIS that states that
failure to use a control date may
exacerbate conservation concerns.
Several other commenters also noted
that they would benefit by receiving
increased harvester allocations if more
recent years were included, but they
believe that reliance on the control dates
is fair because everyone in the fishery
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knew the consequences of fishing after
the control date and therefore support
the existing allocations.
Response: NMFS agrees that, in
general terms, control dates serve a
useful purpose of deterring speculative
increased capacity or effort during the
development of LAPPs. NMFS further
agrees that not using the announced
date of 2003 for harvesters could have
a negative effect in the future when the
Pacific Council or other councils begin
to consider limited entry or LAPP
programs, and further notes that there is
a rational basis for modifying the
control date by one year for processors.
Further, NMFS believes that the reliance
on the control date expressed by many
commenters benefited the underlying
purposes of Amendment 20 pending its
implementation. The fact that several
participants commented that they
would benefit financially from selecting
an alternative that uses more recent
years, but nevertheless support the
existing allocations, is indicative of the
fairness and equity of the Council’s
recommendation and NMFS’ decision.
Comment 22: Harvests after the
control date should be rewarded
because fishing and processing was
happening in the Pacific coast whiting
fishery where and when there were
market opportunities.
Response: As noted in the proposed
rule, no mechanism exists to separate
speculative from non-speculative effort
after the control date and by
maintaining the control date for
harvesters, any speculative behavior
after the control date is not rewarded
and those who acted consistent with the
control date and goals of Amendment 20
are not penalized. As explained in this
final rule, and after consideration of the
statutory factors, NMFS has determined
that the control date of 2003 as the cutoff for the harvester qualifying period is
rational, as is the use of 2004 as the cutoff for the processor qualifying period,
and the end result is a fair and equitable
initial allocation.
Comment 23: The policies supporting
a control date for harvesters do not
apply to processors, and are at best a
theoretical and indirect concern.
Processor interests in acquiring quota
are to ensure that fish continue to
support the processing plants.
Processors do not speculatively increase
capacity to acquire quota as an asset to
later be bought, sold, leased, or traded.
Testimony at the June 2012 Council
meeting indicated concern about
undercapitalization in the processing
sector, not overcapitalization.
Response: The control date was
intended to put the industry on notice
and deter speculative increases in effort
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and capitalization, regardless of sector.
Section 3.3.2.4 of the EA discusses the
key indicators that were used to identify
overcapacity issues within the fishery.
Fishing season length is a key indicator
of overcapacity in a fishery because in
the absence of excess capacity, a fishing
season could potentially run through
December 31, assuming other
constraining factors are taken into
account. Although allowable harvests
increased in the years from 2004–2010,
season length in the shorebased whiting
fishery decreased during this period.
The weekly harvest pattern for the
shorebased fishery during this period
demonstrates substantial excess
capacity. Fleet weekly harvest was used
as a proxy for effort and capacity in the
shorebased sector (both harvesters and
processors). Even if the fleets were
capable of sustained fishing at only one
half their lowest annual maximum
weekly rate, the amount of time
required to take the maximum
allocation available in recent years
would be far less than the potential
number of season days available.
Despite a situation of excess capacity,
after 2004 the number of vessels
participating was generally on an
upward trend in both the shorebased
and mothership sectors. While one
commenter noted that with respect to
processors, speculation and
overcapacity was a theoretical or
indirect concern, another commenter
noted that in industrial fisheries like
Pacific whiting, all harvests are landed
and processed. Therefore the harvest
and subsequent processing of that
harvest provides a proxy for
investments and dependence in the
fishery by harvesters and processors.
The purpose of applying control dates to
onshore processors, while important, is
not necessarily as significant as for
harvesters, who have a greater ability to
move into and out of various fisheries
to gain potential fishing history. In
addition, comments on the proposed
rule and public testimony at Council
meetings noted that including 2004 in
the qualifying period for processors
takes into account more recent
investments that were made in 2003 but
that did not come online and start
acquiring history until 2004. These
factors, in addition to the fact that it was
not clear until 2005 that the 2003
control date potentially applied to
processors, support the decision that a
one year shift, to 2004, was a reasonable
cutoff date for processors.
Although one commenter testified at
the June 2012 Council meeting that the
shorebased processing sector was
undercapitalized, other public
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testimony indicated that the fishery was
heavily overcapitalized and there was
no shortage of processing capacity
available, and that the control date was
meant as to deter the entire industry
from injecting more capital into an
already overcapitalized fishery, or at the
very least put them on notice that doing
so was not guaranteed to be rewarded by
being credited for initial allocations.
NMFS also notes that a commenter
asserted that those who made
investments in harvesting and
processing capacity later in the
development of a fishery, after it was
already overcapitalized, have made
investments that are at a net loss to
society and therefore should not
necessarily be rewarded for their
investments with allocations of quota.
Control dates are largely preemptive
tools meant to signal that speculation
will not be rewarded. NMFS is unable
to determine whether speculation
would have been worse had no control
date been issued. However, in the
absence of a control date, that incentive
would have been present. For all these
reasons, NMFS believes it is appropriate
to continue to apply the 2004 cut-off
date to processors.
Comment 24: The Federal Register
notices regarding the control date were
unclear on how the control date applied
to processors, even after the clarification
in 2005.
Response: NMFS agrees that the
original announcement of the 2003
control date, 69 FR 1563, did not
explicitly state that it applied to
processors. However, the notice
published in 2005, 70 FR at 29714,
reiterated the 2003 control date and
clarified that it did not preclude
processors from participating in the
trawl rationalization program and being
eligible for quota. The original
announcement that was clarified stated
that the control date ‘‘will apply to any
person potentially eligible for IQ
shares,’’ but the list of eligible persons
did not include processors. In clarifying
that processors could be eligible for
initial allocation, the 2005 notice
included processors as an entity eligible
for IQ shares to which the 2003 control
date would apply. However, NMFS
recognizes that processors were not
expressly included until after the end of
the 2004 season and thus potentially not
on notice, which is one reason why
NMFS determines that it is reasonable
to extend the cut-off for processors to
2004.
Comments on Current and Historical
Participation of Fishing Communities
Comment 25: The Council and NMFS
considered current and historical
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participation of fishing communities,
partially through the allocation of quota
to processors. The existing allocations
spread the processor allocation along
the coast among seven processors in five
communities from Westport, WA to
Eureka, CA. All of the alternatives other
than the No Action Alternative would
shift quota north devaluing the FMP
objective to protect communities.
Response: NMFS agrees that the
record reflects that maintaining the
existing allocations would provide a
more even distribution of initial whiting
allocations along the coast and to the
corresponding fishing communities.
Shifting to alternatives favoring more
recent history could contribute to a
northward shift in initial quota
distribution, and accordingly any
benefits stemming from that initial
allocation (see EA, Section 4.3.3). The
northward shift is expected to be
relatively small (less than 8 percent of
the total quota—2 percent for processors
and 6 percent for harvesters between the
No Action Alternative and Alternative
4) and the analysis shows whiting
landings have been shifting northward
in recent years (due to fish availability
and investments in ports). Some
commenters noted that this northward
shift would benefit two processors at the
cost to all of the remaining processors.
Similarly, a few harvesters would
benefit at the cost of many. Although
the shift in quota would be relatively
modest, NMFS believes that
maintaining the initial whiting
allocations supports historic fishing
communities in more southern locations
and creates a wider geographic
distribution of the initial wealth
associated with allocations. Maintaining
initial whiting allocations would further
support one of the guiding principles in
the development of Amendment 20 (see
Am 20 EIS, Section 1.2.3)—to minimize
negative impacts resulting from
localized concentrations of fishing [and
processing] effort. For processors, in
addition to the distribution of wealth
associated with initial allocations, the
wider distribution of initial allocation of
whiting QS may provide some
additional influence over where
deliveries are made along the coast than
if the initial allocations are based on
more recent qualifying years that would
shift allocations and potentially
landings northward. However, as
discussed in response to other
comments, it is difficult to determine
the degree of competitive advantage or
the impacts of the geographic location of
QS allocated to processors on location
of future harvest. Ultimately, the QS
issued to processors should assist in
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mitigating for the changes expected in
the timing and location of harvest
expected over the long-term under the
trawl rationalization program.
Comments on industry support for
allocation
Comment 26: One commenter said
that the law is clear; NMFS cannot make
the decision about the proper allocation
method based on political
considerations or popularity, only on
the facts of the case and the applicable
law. In addition, no referendum was
held so it is impossible to determine
exactly the degree of support for the
initial allocation system.
Response: NMFS agrees that the
agency cannot make the decision based
on political considerations or
popularity. As described in detail in this
final rule, the agency has independent
reasons that support its decision to
maintain the existing initial allocations.
NMFS further agrees that the agency
cannot determine exactly the ‘‘degree of
support’’ for the agency’s adoption of
the No Action Alternative because a
referendum was not held; however the
record is clear that the majority of
participants that commented during the
Council process and on the proposed
rule support the Council/agency
proposal. The extensive and transparent
public process followed for this
reconsideration, and the fact that a
majority of commenters support the
Council’s recommendation, including
some of those that would receive higher
allocations under other alternatives, is
one factor that the agency considered.
Irrespective of the degree of industry
support, NMFS believes the agency’s
decision results in a fair and equitable
allocation.
Comment 27: Several commenters
stated that they supported the existing
initial allocations and noted that the
Council and NMFS did a thorough and
transparent reconsideration process, in
which a major portion of the affected
stakeholders participated.
Response: NMFS agrees.
Comment 28: Some commenters
noted that industry continues to support
the No Action Alternative as a fair and
equitable decision that balances the
necessary conditions, avoids disruption
to the fishery, and upholds the validity
of control dates and the integrity of the
Council process. Industry support for
the No Action Alternative is highlighted
by several members of industry who
would benefit under alternatives that
included years after the control dates,
yet they continue to support the No
Action Alternative for the same reasons.
Response: NMFS agrees that the no
action alternative is a fair and equitable
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allocation. A review of the record
indicates that there were members of the
industry that testified or commented in
support of the No Action Alternative,
although they would stand to benefit
through a revised initial allocation. Any
allocation scheme will create winners
and losers. NMFS acknowledges the fact
that some members of industry who
might gain quota under other
alternatives still support maintaining
the existing initial allocations.
Comment 29: The trawl
rationalization program (including the
status quo initial allocation) has
generated conservation benefits for
groundfish stocks and economic
benefits for the fishing industry and
communities. Discards of overfished
species have dropped dramatically, and
per vessel revenues have increased,
despite the fact that the fishery was
previously overcapitalized, had been
subject to overfishing, and had been
declared an economic disaster in 2000.
Several comments supported
maintaining the existing whiting
allocations and emphasized: the
importance of honoring the control date
and the underlying policy goals of
Amendment 20, the fact that those who
increased effort or capitalization post
the control date did so with notice any
history earned may not count towards
an initial allocation, and the protection
of historic fishing communities and a
wider distribution of the initial
allocations among those communities.
Response: NMFS agrees and has
concluded that the reasons supporting
maintaining the existing allocations for
the shorebased IFQ and mothership
whiting fisheries (e.g., taking in to
account the intent of the 2003 control
date and the policy goals of Amendment
20, not rewarding speculative behavior,
minimizing concentration of quota, and
achieving wider geographic distribution
of initial program benefits) outweigh the
reasons supporting alternatives that
favor more recent history (e.g.,
providing greater amounts of quota to
the recent fishery participants to
recognize their recent fishery
dependence/investments, potentially
reducing future leasing or acquisition
costs, reducing quota to latent permits,
and reflecting the more recent market
and fishery conditions). The initial
allocation is a fair and equitable
allocation and is consistent with the
requirements of the MSA, the
Groundfish FMP, other applicable law,
and the court’s order in Pacific Dawn.
Comments on Widow Rockfish QS
Comment 30: One commenter noted
that while the draft regulatory language
extends the prohibition on
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transferability of widow rockfish QS, it
does not provide for the limited
exception that would address outcomes
of court actions such as might occur in
probate or bankruptcy. The commenter
requested that the regulations be
clarified to state that any prohibition on
the transferability of widow rockfish QS
would also be subject to the current
limited exception that allows
transferability under a U.S. court order
or authorization as approved by NMFS.
Response: NMFS agrees with the
commenter that the regulations should
be clarified to state that the current
exception applies to transfer of widow
rockfish QS and has modified the
regulatory language, as described below.
The existing prohibition on QS
transferability allows for transferability
under the limited exception raised by
the commenter. The extension of the
prohibition on transferability of widow
rockfish QS should have more explicitly
included the extension of the limited
exception.
Change From the Proposed Rule
This rule extends the moratorium on
transfer of widow rockfish QS in the
IFQ fishery indefinitely, pending
reconsideration of the allocation of QS
for widow rockfish. In response to a
public comment, a change has been
made for the final rule to clarify that
transfer of widow rockfish QS may be
allowed under U.S. court order or
authorization, and as approved by
NMFS. This is consistent with the
current transfer exception for QS or IBQ
between QS accounts at
§ 660.140(d)(3)(ii)(B)(2). NMFS will
make this change at
§ 660.140(d)(3)(ii)(B)(2). Additionally,
two minor changes were made for
clarity in § 660.140(d)(4)(v) and in
§ 660.150(g)(3)(i)(D).
Classification
Pursuant to section 304(b)(1)(A) of the
MSA, the NMFS has determined that
this final rule is consistent with the
Groundfish FMP, the MSA, and other
applicable law. To the extent that the
regulations in this rule differ from what
was deemed by the Council, NMFS
invokes its independent authority under
16 U.S.C. 1855(d).
NMFS finds good cause to waive the
30-day delay in effectiveness pursuant
to 5 U.S.C. 553(d)(3), so that this final
rule is effective on April 1, 2013. As
described in the preamble to the
proposed rule (78 FR 72, January 2,
2013), the initial allocations of whiting
to the shorebased IFQ and mothership
sectors were challenged in Pacific
Dawn. On February 21, 2012, the court
in that case issued an order remanding
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the regulations establishing the initial
allocations of whiting for the shorebased
IFQ fishery and the at-sea mothership
fishery ‘‘for further consideration.’’ The
order requires NMFS to implement
revised regulations before the 2013
Pacific whiting fishing season begins on
April 1, 2013. Waiving the 30-day delay
in effectiveness is necessary to comply
with the court-ordered deadline.
Reconsideration of the initial allocations
was a significant undertaking that
required development and
consideration of different alternatives,
review of new information,
development of new analyses, and
preparation of draft and final
environmental assessments and
proposed regulations through the Pacific
Fishery Management Council, which
held three Council meetings and took
public comment at all of them. NMFS
and the Council devoted substantial
effort and resources to accomplish this
reconsideration by April 1, including
providing a 30-day comment period on
the proposed rule to allow time for
public comment. Except for the portion
of § 660.140(d)(3)(ii)(B)(2) that addresses
widow rockfish, the regulatory revisions
contained within this rule reinstate
certain provisions that were suspended
by temporary action (77 FR 45508,
August 1, 2012; 78 FR 3848, January 17,
2013) pending reconsideration of the
initial allocations and, as specified in
the regulatory text, do not actually affect
regulated entities until January 1, 2014,
at the earliest. Thus, there is more than
sufficient time for the public to become
aware of and to come into compliance
with or take other actions regarding
these provisions. Some provisions of
this rule (e.g. allowing participants in
the program to transfer quota and
requiring divestiture of quota in excess
of accumulation limits) were
components of the original program
implemented under Amendment 20 to
the FMP (see 75 FR 78344; Dec. 15,
2010) that NMFS delayed until it could
respond to the court order. The public
is well aware of these measures and
does not need to come into compliance
with them within the next 30 days.
NMFS previously provided for a 30-day
delay in effectiveness of these measures
when it issued the rule implementing
Amendment 20. In addition, for the
portion of § 660.140(d)(3)(ii)(B)(2) that
continues the current restriction on
transfer of widow rockfish quota shares,
the public is aware that this prohibition
is in place under the temporary actions
cited above and as such, do not require
any additional time to prepare to
comply with the restriction. For the
above reasons, there is good cause under
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5 U.S.C. 553(d)(3) to establish an
effective date less than 30 days after
date of publication.
NMFS prepared an Environmental
Assessment (EA) for the reconsideration
of initial whiting allocation and
concluded that there will be no
significant impact on the human
environment as a result of this rule.
NMFS prepared a finding of no
significant impact (FONSI) which can
be found in Section 6.2 of the EA. A
copy of the EA is available on NMFS’
Web site at http://www.nwr.noaa.gov/
Groundfish-Halibut/Groundfish-FisheryManagement/Trawl-Program/index.cfm.
Aspects related to this action were
previously discussed in the final
environmental impact statement (EIS)
for Amendment 20 to the Pacific Coast
Groundfish FMP which discussed the
structure and features of the original
trawl rationalization program.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
A Regulatory Impact Review (RIR)
was prepared on the action in its
entirety and is included as part of the
final regulatory flexibility analysis
(FRFA) on the regulatory changes. The
FRFA and RIR describe the impact this
rule will have on small entities. The
FRFA incorporates the IRFA, a summary
of the significant issues raised by the
public comments in response to the
IRFA, and NMFS responses to those
comments, and a summary of the
analyses completed to support the
action. A copy of the FRFA is available
from NMFS (see ADDRESSES) and a
summary of the FRFA, per the
requirements of 5 U.S.C. 604(a), follows:
No significant issues were raised by
the public comments that were directed
to the IRFA itself. However, economic
issues were raised in the comments to
the Proposed Rule. These mainly
concerned the application of the MSA
criteria for determining allocations.
These issues are addressed in the
comments above. Although not directed
to the IRFA, there was one comment
that touched on the effects on leasing for
small companies. This is addressed
above in Comment 15.
Reconsideration of Initial Allocation of
Whiting
The Council considered four
alternatives for allocating whiting. The
following analysis compares the No
Action Alternative to Alternative 4 as
they show greatest differences between
the pre-control date fishery and postcontrol date fishery. The No Action
Alternative allocates whiting using the
years 1994 to 2003 for harvesters
(shoreside and mothership) and 1998–
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2004 for processors. Alternative 4
allocates whiting using the years 2000–
2010 for both harvesters (shoreside and
mothership) and processors.
Over the years 1994–2010, there were
65 fishing permit holders that
participated in the shoreside fishery and
37 permit holders that participated in
the mothership fishery. Over the years
1998 to 2010, there were 17 processors
that participated in the fishery and that
meet the recent participation criteria of
the various alternatives. For quota share
purposes there are 17 potential
processing plants based on fish ticket
information. After taking into account
ownership and affiliation relationships,
there are 12 processing entities based on
SBA definitions. Of these 12 processing
entities, there are nine small processing
entities and three large processing
entities that are affected by this rule.
Comparing the No Action Alternative to
Alternative 4 in terms of 2011 ex-vessel
revenues, information on the gainers
and losers in each of these affected
groups can be developed from
information in the Environmental
Assessment (EA). The allocation of
98,000 mt to the 2011 shorebased
whiting fishery was worth
approximately $21 million (ex-vessel
value). Based on the No Action
Alternative allocations, eighty percent
of these quota pounds were allocated to
fishing permits ($17 million) and 20
percent to the shorebased processors ($4
million). The allocation of 57,000 mt
whiting to the whiting mothership
catcher vessels was worth $12 million
in ex-vessel value. It is important to
note that 2011 was a peak year for the
shorebased fishery and a near-peak year
for the mothership fishery (see Figure 3–
5 of the EA). (Note: although exprocessor or ‘‘first wholesale’’ revenues
are higher than ex-vessel values and
would be a better indicator of
processing activity levels, data on exprocessor sales were not readily
available for use by the Council. A
better indicator of the gains and losses
by groups would be changes in profits
(revenues less operating costs)).
The Northwest Fisheries Science
Center (NWFSC) has developed an
estimate of economic net revenue that is
an indicator of profits. Economic net
revenue seeks to measure economic
profit, which includes the opportunity
costs of operating a commercial fishing
vessel. The NWFSC collected and
assessed 2008 cost-earning data on
vessels participating in the shoreside
groundfish fisheries including whiting.
Vessels that participate in the shoreside
whiting fishery are typically classified
as either ‘‘whiting’’ vessels or ‘‘Alaska’’
vessels depending on whether or not
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they operated in Alaska. Whiting vessels
are defined as those with at least
$100,000 revenue, of which at least 33%
comes from whiting. Alaska vessels are
defined as those vessels that earned at
least $100,000 in revenue of which at
least 50% comes from Alaska fisheries.
Based on the responses received,
whiting vessels earned 37% of their
revenue from West Coast-caught whiting
in 2008, Alaska vessels 46%. The
average economic net revenue of a
whiting vessel in 2008 was $167,457,
which represents 19.2% of revenue from
all fisheries. Limited entry trawl vessels
classified as Alaska vessels had an
average economic net revenue of
$493,915, 28.3% of the $1,744,793
revenue earned from all sources by
these vessels. These estimates are based
on revenue and cost information
directly related to the operation of a
commercial fishing vessel such as those
associated with office space. Revenues
are from West Coast landings, Alaska
landings, at-sea deliveries, sale and
leasing of permits, chartering for
research purposes and other activities
related to the operation of the vessel.
Compared to other years, these
estimates may be high as whiting
revenues and overall groundfish
revenues were at their highest annual
level during the 2001–2010 period
during 2008. However, crab revenues
during 2008 on the West Coast were at
their lowest level since 2003.
Compared with the No Action
Alternative, under Alternative 4
approximately 17% ($3.7 million) of the
allocation to shorebased catcher vessels
would be transferred away from the No
Action Alternative/status quo holders;
twenty eight permit holders would gain
quota share including six permits that
did not qualify under the No Action
Alternative (Table 4–4 of the EA). The
largest gain by a single permit holder is
3.3% ($700,000). Alternative 4 would
lead to 37 permits losing quota share
including 12 permits that would not
receive any quota share. The largest loss
by a single permit holder would be
2.0% of quota share ($340,000). A total
of 41 out of 65 permits will see a change
of less than $100,000 (increase or
decrease) in revenues in comparing
Alternative 4 to the No Action
Alternative.
In comparing Alternative 4 to the No
Action Alternative for shorebased
processors, approximately 2.7%
($567,000) of the shoreside allocation of
$21 million would be transferred away
from the No Action/status quo holders;
ten processing plants would gain,
including seven processing plants that
did not qualify under the No Action
Alternative (Table 4–29 of the EA). The
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largest gain by a single plant is 1.0% of
quota share ($214,000). Alternative 4
would lead to seven processing plants
losing quota share including three
plants that would not receive any quota
share. The largest loss by a single plant
is 0.9% of quota share ($189,000).
Twelve out of 17 processing plants
would see a change of less than
$100,000. (Note—The Draft EA used
processor counts that included one
processor that operated four processing
plants. Each of these four plants
established a QS account and received
separate processors’ QS allocations
under No Action—status quo. For this
analysis, especially in regards to
estimating impacts on communities, it
was decided each of these four
processing plants should be treated
separately. This treatment changes the
number of processors that were active in
the fishery at some point during 1994–
2010 from 16 to 19 (see, for example,
Figure 4–13 in the EA). However, two of
those processing plants are no longer in
existence and so did not receive
processors’ QS allocations under No
Action—status quo. Consequently in the
Final EA’s displays that include counts
of processors receiving QS allocations
under the alternatives, the processor
count is reduced from 19 to 17 (see, for
example, Table 4–30 in the EA).)
In comparing Alternative 4 to the No
Action Alternative for whiting
mothership catcher vessels,
approximately 18% ($2 million) of the
total catch history assignment would be
transferred away from the status quo
holders; 16 mothership catcher vessel
endorsed permits would gain (Table 4–
16 of the EA). No new permits would
qualify. The largest gain by a single
permit holder would be 4.5% of catch
history assignment ($545,000).
Alternative 4 would lead to 21 permits
with reduced catch history assignments,
including 10 permits that would not
receive any catch history assignment.
The largest loss by a single catch history
assignment holder would be 2.7%
($333,000). Eighteen out of 36 permits
would see a change of less than
$100,000.
In terms of net economic benefit to
the nation, the effects of the alternatives
are similar. According to the Pacific
States Marine Fisheries Council
(PSMFC’s) Scientific and Statistical
Committee:
The way the fisheries are actually
prosecuted (geographic location of fishing
and landings, timing of fishing, and
participants) will, in the long-term, tend not
to be affected by who receives the initial
allocation of catch shares. Over time, the use
of the catch shares will likely migrate
through leases or sales to the participants
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18893
who can put them to their most profitable
use. This means that the eventual biological,
ecological, and economic performance of the
fisheries will be relatively independent of the
initial allocation of catch shares. It has been
the experience of many catch share programs
that such transitions occur rather quickly,
often within the first few years. As a
consequence, the initial allocation of quota
shares is not an effective tool to direct fishing
or processing effort to particular geographic
locations.
The initial allocation of whiting is a
one-time distribution of wealth in the
form of quota shares and catch history
assignments to members of the fishing
industry. The initial allocation is
essentially the granting of a capital asset
that will affect harvester and processor
competitiveness and assist existing
participants in the transition to the new
management system. To the degree that
the initial allocation matches up with
the harvesters that will use the quota,
transition costs and disruption will be
lessened as the fishery moves to its
long-term, more efficient state.
Similarly, those processors who
receive an initial allocation may
experience a boost in their competitive
advantage due to the infusion of new
wealth (the value of the QS received).
The initial allocation does not affect the
long-term efficiency and operation of
the fishery. However, liquidity
constraints, and perhaps other unknown
constraints, may mean that there are
some short-term inefficiencies. For
example, this one time distribution of
wealth may affect expenditures in the
communities depending on location and
spending patterns of recipients of these
quota shares and catch history
assignments. The EA provides the
following regarding impacts on
communities:
The effects of the initial allocations on the
distribution of fishing among communities
are difficult to predict. Quota is tradable and
highly divisible, giving it a fluidity such that
it will likely move toward those ports in
which profit margins tend to be the highest,
regardless of the initial allocations. Where
profit margins are similar, allocations given
to entities that are already invested in
whiting fishery-dependent capital assets are
likely to stay with those entities at least in
the near term. Similarly, where profit
margins are similar, there will likely be some
tendency in the near term for quota that is
traded to move toward locations where
whiting fishery-dependent capital assets
already exist. Regardless of how the quota is
distributed, vessels may move operations
between ports during the year based on the
geographic distribution of fishing
opportunities. Processors are likely to use
their shares in the port in which their
facilities are located, however, some
processors have facilities in more than one
port and so may shift harvest between ports
in response to the location of fishing
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opportunities. At the same time, the recent
shift of harvest toward more northern ports
appears to be a response to investments in
those ports, indicating that the location of
fish is not the only factor driving the location
of landings. Over the long term, it is expected
that operations will move, or quota will be
traded, to the ports in which the highest
profits can be earned, taking into account all
forms of costs such as average distance to
fishing grounds and catch and bycatch rates.
While the discussion above concerns
the long term efficiency and operation
of the fishery, short term distributional
effects matter to NMFS and the Council.
The initial allocation of quota shares
affects each participant’s business
operation, investments, and community.
With the choice of the No Action
Alternative over alternatives that reflect
more recent history, NMFS and the
Council are providing to those who have
historically participated in the fishery
(the majority of which are also recent
participants) a potentially better chance
to benefit from the market processes
described above.
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RAW 1
This action also would revise several
regulations that were delayed on an
emergency basis in response to the
Court order. RAW 1 delayed the ability
to transfer QS and IBQ between QS
accounts in the shorebased IFQ fishery,
and to the ability to sever mothership/
catcher vessel endorsement and its
associated catch history assignment
(CHA) from limited entry trawl permits
in the mothership fishery, pending the
outcome of the reconsideration.
NMFS postponed the ability to trade
quota shares as well as the ability of
mothership catcher vessels to trade their
endorsements and catch history
assignments separately from their
limited entry permits. NMFS also
postponed all trading of QS species/
species groups because for many
affected parties, their QS allocations
(especially for bycatch species) are a
composite of whiting-trip calculations
and non-whiting trip calculations.
Postponing these activities, while NMFS
and the Council reconsidered the
whiting allocation, minimized
confusion and disruption in the fishery
from trading quota shares that have not
yet been firmly established by
regulation. For example, if QS trading
was not delayed, QS permit owners
would be transferring QS amounts that
potentially could change (increase or
decrease) after the reconsideration.
For similar reasons, NMFS also
delayed the ability to transfer a
mothership catcher vessel (MS/CV)
endorsement and associated catch
history assignment from one limited
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entry trawl permit to another in the
mothership sector. The ability to sell or
trade a limited entry permit with the
endorsement and catch history remains.
The use of the catch history assignment
to be assigned to a co-op to be fished
continues. These delays were expected
to be temporary in nature and to benefit
both small and large entities as they
help smooth the transition to any
changes in how Pacific whiting is
allocated, and reduce the uncertainty to
existing and potential new holders of
these allocations.
With these revised regulations, those
who find themselves with excess QS
(except for widow QS) and IBQ, have
until November 30, 2015, to divest. MS/
CV-endorsed limited entry trawl permit
owners will have to divest themselves of
ownership in permits in excess of the
accumulation limits by August 31, 2016.
This rule allows limited entry trawl
permit holders in the mothership sector
to request a change (or transfer) of MS/
CV endorsement and its associated CHA
beginning September 1, 2014. Finally,
this rule allows transfer of QS or IBQ,
except widow rockfish QS, between QS
permit holders beginning January 1,
2014.
The Small Business Administration
has established size criteria for all major
industry sectors in the U.S., 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 not in excess
of $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 on a full
time, part time, temporary, or other
basis, at all its affiliated operations
worldwide. A business involved in both
the harvesting and processing of seafood
products is a small 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 on a full time, part time,
temporary, or other basis, at all its
affiliated operations worldwide. For
marinas and charter/party boats, a small
business is one with annual receipts not
in excess of $7.0 million.
NMFS now collects small business
information as part of its permit renewal
processes. For quota share purposes
there are 17 potential processing plants
based on fish ticket information. After
taking into account ownership and
affiliation relationships, there are 12
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processing entities based on SBA
definitions. Of these 12 processing
entities, there are nine small processing
entities and three large processing
entities that are affected by this rule.
Sixteen of the limited entry trawl
permits that participated in the
shorebased whiting fishery are
associated with large companies and 49
of these permits are associated with
small companies. In the mothership
fishery, 14 catcher vessel permits are
associated with large companies and 23
with small companies. When permits
associated with the shoreside fishery
and the mothership fisheries are
combined, there are 66 limited entry
permits of which 21 are associated with
large companies. Given the review of
the various alternatives, the amount of
ex-vessel revenues that may change
hands, and how each alternative differs
slightly in the mixture of large and
small entities that qualify for whiting
quota share, maintaining the No Action/
status quo allocations should not have
a significant economic impact on a
substantial number of small entities.
No Federal rules have been identified
that duplicate, overlap, or conflict with
the action.
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 FRFA, 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 public notice that
also serves as small entity compliance
guide was prepared. Copies of this final
rule and public notice are available from
NMFS Northwest Regional Office, and
are posted on its Web site (http://
www.nwr.noaa.gov/fisheries/
management/about_groundfish/
index.html), and will be emailed to
members of our groundfish fishery
email listserve.
NMFS issued Biological Opinions
under the Endangered Species Act
(ESA) on August 10, 1990, November
26, 1991, August 28, 1992, September
27, 1993, May 14, 1996, and December
15, 1999, pertaining to the effects of the
Pacific Coast groundfish 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,
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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 Pacific Coast groundfish fishery is
not expected to jeopardize the
continued existence of any endangered
or threatened species under the
jurisdiction of NMFS, or result in the
destruction or adverse modification of
critical habitat.
NMFS issued a Supplemental
Biological Opinion on March 11, 2006,
concluding that neither the higher
observed bycatch of Chinook in the
2005 whiting fishery nor new data
regarding salmon bycatch in the
groundfish bottom trawl fishery
required a reconsideration of its prior
‘‘no jeopardy’’ conclusion. NMFS also
reaffirmed its prior determination that
implementation of the Groundfish FMP
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 relisted as threatened under
the ESA. The 1999 biological opinion
concluded that the bycatch of salmonids
in the Pacific whiting fishery were
almost entirely Chinook salmon, with
little or no bycatch of coho, chum,
sockeye, and steelhead.
On December 7, 2012, NMFS
completed a biological opinion
concluding that the groundfish fishery
is not likely to jeopardize non-salmonid
marine species including listed
eulachon, green sturgeon, humpback
whales, Steller sea lions, and
leatherback sea turtles. The opinion also
concludes that the fishery is not likely
to adversely modify critical habitat for
green sturgeon and leatherback sea
turtles. An analysis included in the
same document as the opinion
concludes that the fishery is not likely
to adversely affect green sea turtles,
olive ridley sea turtles, loggerhead sea
turtles, sei whales, North Pacific right
whales, blue whales, fin whales, sperm
whales, Southern Resident killer
whales, Guadalupe fur seals, or the
critical habitat for Steller sea lions.
As Steller sea lions and humpback
whales are also protected under the
Marine Mammal Protection Act,
incidental take of these species from the
groundfish fishery must be addressed
under MMPA section 101(a)(5)(E). On
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February 27, 2012, NMFS published
notice that the incidental taking of
Steller sea lions in the West Coast
groundfish fisheries was addressed in
NMFS’ December 29, 2010, Negligible
Impact Determination (NID) and this
fishery has been added to the list of
fisheries authorized to take Steller sea
lions (77 FR 11493, Feb. 27, 2012).
NMFS is currently developing MMPA
authorization for the incidental take of
humpback whales in the fishery.
On November 21, 2012, the U.S. Fish
and Wildlife Service (FWS) issued a
biological opinion concluding that the
groundfish fishery will not jeopardize
the continued existence of the shorttailed albatross. The (FWS) also
concurred that the fishery is not likely
to adversely affect the marbled murrelet,
California least tern, southern sea otter,
bull trout, nor bull trout critical habitat.
Pursuant to Executive Order 13175,
this rule was developed after
meaningful consultation and
collaboration, through the Council
process, with the tribal representative
on the Council. The revised regulations
have no direct effect on the tribes.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian
fisheries.
Dated: March 22, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
performing the functions and duties of the
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons stated in the
preamble, 50 CFR part 660 is amended
as follows:
PART 660—FISHERIES OFF WEST
COAST STATES
1. The authority citation for part 660
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C.
773 et seq., and 16 U.S.C. 7001 et seq.
2. In § 660.140, revise paragraphs
(d)(3)(ii)(B)(2) and (d)(4)(v) to read as
follows:
■
§ 660.140
Shorebased IFQ Program.
*
*
*
*
*
(d) * * *
(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 QS permit owner, subject to
accumulation limits and approval by
NMFS. QS or IBQ is transferred as a
PO 00000
Frm 00101
Fmt 4700
Sfmt 4700
18895
percent, divisible to one-thousandth of
a percent (i.e., greater than or equal to
0.001%). Until January 1, 2014, QS or
IBQ cannot be transferred to another QS
permit owner, except under U.S. court
order or authorization and as approved
by NMFS. QS or IBQ may not be
transferred between December 1 through
December 31 each year. QS or IBQ may
not be transferred to a vessel account.
The prohibition on transferability of
widow rockfish QS is extended
indefinitely pending final action on
reallocation of widow rockfish QS,
except under U.S. court order or
authorization and as approved by
NMFS.
*
*
*
*
*
(4) * * *
(v) Divestiture. Accumulation limits
will be calculated by first calculating
the aggregate non-whiting QS limit and
then the individual species QS or IBQ
control limits. For QS permit owners
(including any person who has
ownership interest in the owner named
on the permit) that are found to exceed
the accumulation limits during the
initial issuance of QS permits, an
adjustment period will be provided
during which they will have to
completely divest their QS or IBQ in
excess of the accumulation limits. QS or
IBQ will be issued for amounts in excess
of accumulation limits only for owners
of limited entry permits as of November
8, 2008, if such ownership has been
registered with NMFS by November 30,
2008. The owner of any permit acquired
after November 8, 2008, or if acquired
earlier, not registered with NMFS by
November 30, 2008, will only be eligible
to receive an initial allocation for that
permit of those QS or IBQ that are
within the accumulation limits; any QS
or IBQ in excess of the accumulation
limits will be redistributed to the
remainder of the initial recipients of QS
or IBQ in proportion to each recipient’s
initial allocation of QS or IBQ for each
species. Any person that qualifies for an
initial allocation of QS or IBQ in excess
of the accumulation limits will be
allowed to receive that allocation, but
must divest themselves of the QS
(except for widow rockfish QS) or IBQ
in excess of the accumulation limits by
November 30, 2015. Holders of QS or
IBQ in excess of the control limits may
receive and use the QP or IBQ pounds
associated with that excess, up to the
time their divestiture is completed.
Once the divestiture period is
completed, any QS or IBQ held by a
person (including any person who has
ownership interest in the owner named
on the permit) in excess of the
accumulation limits will be revoked and
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redistributed to the remainder of the QS
or IBQ owners in proportion to the QS
or IBQ. On or about January 1, 2016,
NMFS will redistribute the revoked QS
or IBQ excess percentages to the QS or
IBQ owners in proportion to their QS or
IBQ holdings based on ownership
records as of January 1, 2016. No
compensation will be due for any
revoked shares.
*
*
*
*
*
■ 3. In § 660.150,
■ a. Revise paragraphs (g)(2)(iv)(B), add
paragraph (g)(2)(iv)(C), and revise
(g)(3)(i)(D) to read as follows:
§ 660.150
Mothership (MS) Coop Program.
srobinson on DSK4SPTVN1PROD with RULES
*
*
*
*
*
(g) * * *
(2) * * *
(iv) * * *
(B) Application. NMFS will begin
accepting applications for a change in
MS/CV endorsement registration
beginning September 1, 2014. A request
for a change in MS/CV endorsement
registration must be made between
September 1 and December 31 of each
year. Any transfer of MS/CV
endorsement and its associated CHA to
another limited entry trawl permit must
be requested using a Change in
Registration of a Mothership/Catcher
Vessel Endorsement/Catch History
Assignment Application form and the
permit owner or an authorized
representative of the permit owner must
certify that the application is true and
correct by signing and dating the form.
In addition, the form must be notarized,
and the permit owner selling the MS/CV
endorsement and its CHA must provide
the sale price of the MS/CV
endorsement and its associated CHA. If
any assets in addition to the MS/CV
endorsement and its associated CHA are
included in the sale price, those assets
must be itemized and described.
(C) Effective date. Any change in MS/
CV endorsement registration from one
limited entry trawl permit to another
limited entry trawl permit will be
effective on January 1 in the year
following the application period.
*
*
*
*
*
(3) * * *
(i) * * *
(D) Divestiture. For MS/CV-endorsed
permit owners that are found to exceed
the accumulation limits during the
initial issuance of MS/CV-endorsed
permits, an adjustment period will be
provided during which they will have to
completely divest of ownership in
permits that exceed the accumulation
limits. Any person that NMFS
determines, as a result of the initial
issuance of MS/CV-endorsed permits, to
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own in excess of 20 percent of the total
catch history assignment in the MS
Coop Program applying the individual
and collective rule described at
§ 660.150(g)(3)(i)(A) will be allowed to
receive such permit(s), but must divest
themselves of the excess ownership by
August 31, 2016. Owners of such
permit(s) may receive and use the MS/
CV-endorsed permit(s), up to the time
their divestiture is completed. After
August 31, 2016, any MS/CV-endorsed
permits owned by a person (including
any person who has ownership interest
in the owner named on the permit) in
excess of the accumulation limits will
not be issued (renewed) until the permit
owner complies with the accumulation
limits.
[FR Doc. 2013–07162 Filed 3–27–13; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 111213751–2102–02]
RIN 0648–XC596
Classification
Fisheries of the Exclusive Economic
Zone Off Alaska; Pacific Cod by
Catcher Vessels Less Than 60 feet
(18.3 meters) Length Overall Using Jig
or Hook-and-Line Gear in the Bogoslof
Pacific Cod Exemption Area in the
Bering Sea and Aleutian Islands
Management Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
SUMMARY: NMFS is prohibiting directed
fishing for Pacific cod by catcher vessels
less than 60 feet (18.3 meters (m)) length
overall (LOA) using jig or hook-and-line
gear in the Bogoslof Pacific cod
exemption area of the Bering Sea and
Aleutian Islands management area
(BSAI). This action is necessary to
prevent exceeding the limit of Pacific
cod for catcher vessels less than 60 feet
(18.3 m) LOA using jig or hook-and-line
gear in the Bogoslof Pacific cod
exemption area in the BSAI.
DATES: Effective 1200 hours, Alaska
local time (A.l.t.), March 25, 2013,
through 2400 hours, A.l.t., December 31,
2013.
FOR FURTHER INFORMATION CONTACT:
Obren Davis, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
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Fmt 4700
BSAI according to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) prepared by
the North Pacific Fishery Management
Council under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
In accordance with
§ 679.22(a)(7)(i)(C), the Administrator,
Alaska Region, NMFS (Regional
Administrator), has determined that 113
metric tons of Pacific cod have been
caught by catcher vessels less than 60
feet (18.3 m) LOA using jig or hook-andline gear in the Bogoslof exemption area
described at § 679.22(a)(7)(i)(C)(1).
Consequently, the Regional
Administrator is prohibiting directed
fishing for Pacific cod by catcher vessels
less than 60 feet (18.3 m) LOA using jig
or hook-and-line gear in the Bogoslof
Pacific cod exemption area.
After the effective date of this closure
the maximum retainable amounts at
§ 679.20(e) and (f) apply at any time
during a trip.
Sfmt 4700
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as
such requirement is impracticable and
contrary to the public interest. This
requirement is impracticable and
contrary to the public interest as it
would prevent NMFS from responding
to the most recent fisheries data in a
timely fashion and would delay the
closure of Pacific cod by catcher vessels
less than 60 feet (18.3 m) LOA using jig
or hook-and-line gear in the Bogoslof
Pacific cod exemption area. NMFS was
unable to publish a notice providing
time for public comment because the
most recent, relevant data only became
available as of March 22, 2013.
The AA also finds good cause to
waive the 30-day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment.
This action is required by § 679.22
and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
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