2011-12335. Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures

AGENCY:

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

ACTION:

Final rule; Pacific whiting harvest specifications and tribal allocation.

SUMMARY:

This final rule establishes the 2011 fishery harvest specifications for Pacific whiting in the U.S. exclusive economic zone (EEZ) and state waters off the coasts of Washington, Oregon, and California, as authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP). These specifications include the overfishing level (OFL), catch limits, and allocations for the non-tribal commercial sectors. This final rule also announces the tribal allocation of Pacific whiting for 2011.

DATES:

This rule is effective May 16, 2011, and is applicable beginning May 15, 2011.

FOR FURTHER INFORMATION CONTACT:

Kevin C. Duffy (Northwest Region, NMFS), phone: [phone], fax: [phone] and e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

This final rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.gpoaccess.gov/​fr/​index.html. Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/​.

Copies of the final environmental impact statement (FEIS) for the 2011-2012 Groundfish Specifications and Management Measures are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: [phone].

Copies of additional reports referred to in this document may also be obtained from the Council. Copies of the Record of Decision (ROD), final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide are available from William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115-0070.

Background

On November 3, 2010, NMFS published a proposed rule to implement the 2011-2012 specifications and management measures for the Pacific Coast groundfish fishery (75 FR 67810). A final rule was published on May 11, 2011 (76 FR 27508) that responded to public comments and codified the specifications and management measures in the CFR (50 CFR part 660, subparts C through G), except for the final Pacific whiting harvest specifications because the information necessary for the annual updated stock assessment for Pacific whiting was not available until January or February, which necessarily delays the preparation of the stock assessment until February.

Due to the inability to establish the final Pacific whiting harvest specifications during the preparation of the proposed and final rules, both rules announced a range of Pacific whiting harvest specifications that were being considered for 2011 and 2012, and also announced the intent to adopt final specifications for whiting on an annual basis after the Council's March 2011 and 2012 meetings. Because the stock assessment is now available, this final rule establishes the 2011 harvest specifications for Pacific whiting. The Council's adoption of Pacific whiting harvest specifications in March is consistent with the U.S.-Canada agreement for Pacific whiting. The U.S.-Canada agreement for Pacific whiting was signed in November 2003. This agreement addresses the conservation, research, and catch sharing of Pacific whiting. Presently, both countries are taking steps to fully implement the agreement. Until full implementation occurs, the negotiators recommended that each country apply the agreed-upon provisions to their respective fisheries. In addition to the time frame in which stock assessments are to be considered and harvest specifications established, the U.S.-Canada agreement specifies how the catch is to be shared between the two countries. The Pacific whiting catch sharing arrangement provides 73.88 percent of the coastwide total catch to the U.S. fisheries, and 26.12 percent to the Canadian fisheries. This action accounts for this division of catch share allocation between the U.S. and Canada.

This final rule also establishes the tribal allocation of Pacific whiting for 2011. NMFS issued a proposed rule for the allocation and management of the 2011 tribal Pacific whiting fishery on April 5, 2011 (75 FR 18709). This action finalizes the allocation and management measures published in the April 5, 2011 proposed rule. A summary of the comments received during the comment period and NMFS' responses are provided below.

Pacific Whiting Stock Status

The joint U.S.-Canada Stock Assessment Review (STAR) panel met February 7-11, 2011, in Seattle, Washington to review a draft stock assessment (Stewart et al., 2011) that had been prepared by the joint Canada-U.S. stock assessment team (STAT). Two draft stock assessment models were evaluated by the STAT: One prepared by Stewart (Stock Synthesis III model, 2011) and a second prepared by Martell (TINSS, 2011). The Joint STAT and STAR Panel discussed features of the new TINSS and SS base models. Specifically, comparisons of the updated TINSS and SS model revealed that: (1) Agreement in fit to the acoustic survey biomass was better between the models than in previous years; (2) there was a closer alignment in the spawning biomass trajectories and their associated confidence intervals; (3) depletion at the beginning of the time series became closer (while depletion at the end of the time series became more divergent); (4) the agreement in the recruitment time series was much improved; (5) recruitment deviations in log space showed much closer agreement; and (6) the fishing intensity time series showed much closer agreement. Overall, it was observed that current spawning biomass estimates and the associated confidence intervals showed good agreement between the two models, although uncertainty remained large for both models. The Joint STAT and the STAR Panel generally concluded that the current configurations of the TINSS and SS models represented the best base-case models for development of management advice. There was recognition, however, that uncertainty in the strength of the 2008 year class was very high and alternative model structures (such as parameterizations with time-varying selectivity) could be put forward that would very likely give less optimistic characterizations of current stock status.

At the March 2011 Council meeting, the Council's Scientific and Statistical Committee (SSC) reviewed the Pacific whiting stock assessment, which was based on the two models identified above. The SSC recommended both model results as equally plausible and recommended key management quantities such as the maximum sustainable yield harvest level and stock depletion in 2011 (126 percent of virgin biomass) be derived using model-averaging with equal weight. Using this approach, the stock assessment estimated that the Pacific whiting biomass was at 126 percent of its unfished biomass in 2011.

Harvest Specification Recommendations

The U.S. harvest levels analyzed in the FEIS for 2011 and 2012 specifications and management measures varied between a low of 96,969 mt and a high of 290,903 mt. This range represents 50 to 150 percent of the 2010 U.S. Optimum Yield (OY) of 193,935 mt. These broad ranges in Pacific whiting harvest levels were analyzed in order to assess the potential range of the effects of the harvest of Pacific whiting on incidentally-caught overfished species, and the economic effects to coastal communities.

The Council adopted the Pacific whiting stock assessment (Stewart et al., 2011) recommended by the STAR panel and the SSC. After consideration of additional input from Council advisory bodies and public comment, the Council adopted a coastwide (U.S. plus Canada) OFL of 973,700 mt for 2011 and a coastwide ACL of 393,751 mt.

The final Overfishing Level (OFL) and ACL values recommended by the Council for 2011 are based on the new stock assessments, and are consistent with the U.S.-Canada agreement and the impacts considered in the FEIS for the 2011 and 2012 management measures.

The U.S. share of the OFL is 719,370 mt (or 73.88 percent of the coastwide OFL). The U.S. share of the ACL is 290,903 mt (or 73.88 percent of the coastwide ACL).

Tribal Fishery Allocations

This final rule establishes the tribal allocation of Pacific whiting for 2011. Since 1996, NMFS has been allocating a portion of the U.S. OY of Pacific whiting to the tribal fishery using the process established in 50 CFR 660.50(d)(1). The tribal allocation is subtracted from the total U.S. Pacific whiting OY before it is allocated to the non-tribal sectors. The tribal Pacific whiting fishery is a separate fishery, and is not governed by the limited entry or open access regulations or allocations. To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. For 2011, both the Makah and Quileute have stated their intent to participate in the Pacific whiting fishery. The Quinault Nation has indicated that they do not plan to participate in the 2011 fishery, unless their circumstances change.

This final rule is not intended to establish any precedent for future Pacific whiting seasons, or for the long-term tribal allocation of whiting. Based on the formula for the tribal allocation used in the proposed rule, and taking into account public comments received on the proposed rule, the tribal allocation of Pacific whiting in 2011 is [17.5 percent * (U.S. ACL)] + 16,000 mt. With a U.S. ACL of 290,903 mt, the tribal allocation for the 2011 tribal Pacific whiting fishery is 66,908 mt.

Non-Tribal Allocations

The 2011 commercial (non-tribal) harvest guideline (HG) for Pacific whiting is 220,995 mt. This amount was determined by deducting from the total U.S. ACL of 290,903 mt, the 66,908 mt tribal allocation, along with 3,000 mt for research catch and bycatch in non-groundfish fisheries. These Pacific whiting fishery allocations are described in regulations at Table 1a to Part 660, subpart C, and footnote e/ and are being revised with this final rule. Regulations at 50 CFR 660.55(i)(2) allocate the commercial HG among the non-tribal catcher/processor, mothership, and shorebased sectors of the Pacific whiting fishery. The catcher/processor sector is allocated 34 percent (75,138 mt for 2011), the mothership sector is allocated 24 percent (53,039 mt for 2011), and the shorebased sector is allocated 42 percent (92,818 mt for 2011). The fishery south of 42° N. lat. may not take more than 4,641 mt (5 percent of the shorebased allocation) prior to the start of the primary Pacific whiting season north of 42° N. lat.

Regarding the shorebased sector, NMFS issued a temporary rule under emergency authority on December 30, 2010 (75 FR 82296) implementing interim measures for the Pacific coast groundfish fisheries beginning in January, 2011. The measures were necessary due to a delay in the finalization of the 2011-2012 harvest specifications and management measures. As part of the December 30, 2010 emergency action, 18,467 mt of Pacific whiting was allocated to the shorebased sector. Therefore, this final rule provides an additional 74,351 mt of Pacific whiting to the shorebased sector, so that the total 2011amount is 92,818 mt.

Allocations of Pacific Ocean perch, canary rockfish, darkblotched rockfish, and widow rockfish to the whiting fishery were published in the 2011-2012 Biennial Harvest Specifications and Management Measures Final rule, on May 11, 2011 (76 FR 27508). The Pacific whiting fishery allocations for these species are described in § 660.55(c)(1)(i) and in Table 1b, subpart C.

Comments and Responses

On April 5, 2011, NMFS issued a proposed rule for the allocation and management of the 2011 tribal Pacific whiting fishery (75 FR 18709). The comment period on this proposed rule closed on April 19, 2011. During the comment period, NMFS received four letters of comment. The U.S. Department of Interior submitted a letter of “no comment” associated with their review of the proposed rule. The Washington Department of Fish and Wildlife, American Seafoods Company, and Pacific Whiting Conservation Cooperative also submitted comments. Comments received on the proposed rule for the allocation and management of the 2011 tribal Pacific whiting fishery are addressed below.

Washington Department of Fish and Wildlife

Comment 1: The Washington Department of Fish and Wildlife (WDFW) expressed concern that the NMFS implementing regulations for Fishery Management Plan (FMP) Amendment 20, the trawl rationalization program, inadvertently removed the regulatory provisions allowing for the rollover of unused tribal whiting to the non-tribal whiting sectors. They state that the Council discussions regarding whiting rollover provisions during development of Amendment 20 focused solely on unused whiting among the non-tribal sectors, with the expectation that non-tribal whiting would be fully harvested under the trawl rationalization program.

Response: NMFS disagrees with the WDFW interpretation of events leading to regulations implementing FMP Amendment 20 that do not authorize “reapportionment” (regulatory term used historically) of whiting between the tribal sector and the non-tribal sector. This issue was broadly addressed in Appendix B of the Amendment 20 FEIS (Section B-1.2, p. B-15), which describes two options in front of the Council.

Option 1 stated that there would not be a rollover of unused whiting from one sector to another. Option 2 described how each year, rollovers to other sectors may occur if sector participants are surveyed by NMFS and no participants intend to harvest remaining sector allocations in that year. Option 2 would have maintained existing provisions for NMFS to reallocate unused sector allocations of whiting from sectors no longer active in the fishery to other sectors still active in the fishery. This option included reference to the regulations at former 50 CFR 660.323(c) on reapportionments, which stated “[t]hat portion of a sector's allocation that the Regional Administrator determines will not be used by the end of the fishing year shall be made available for harvest by the other sectors, if needed, in proportion to their initial allocations, on September 15 or as soon as practicable thereafter. NMFS may release whiting again at a later date to ensure full utilization of the resource. Whiting not needed in the fishery authorized under 50 CFR 660.324 may also be made available.” The regulations at former 50 CFR 660.324, Pacific Coast treaty Indian fisheries, included the tribal whiting fishery. However, the Council chose Option 1, which did not include a rollover or reapportionment mechanism. NMFS concluded that this Council decision included the tribal sector as well, since reapportionment from the tribal to the non-tribal sector was included in Option 2. In addition, the regulations implementing Amendment 20 were deemed as necessary and appropriate under the MSA through the Council process, with many industry and agency representatives reviewing the regulations in great detail, paragraph by paragraph.

Comment 2: WDFW states that the roll-over or reapportionment unused tribal whiting to the non-tribal fishery allows for full utilization of the harvestable yield, consistent with the groundfish FMP and National Standards. WDFW also expresses a desire for a mechanism for “fixing” the rollover issue by the fall of 2011.

Response: As described above, the Council adopted a motion during the process of adopting Amendment 20 that there would be no rollover of whiting between sectors. NMFS interpreted the motion to include the tribal fishery and worked through a very public process, which included representatives from the whiting sectors, for the Council to deem the regulations not including reapportionment between the tribal and non-tribal fisheries. If the Council decides to recommend a reapportionment mechanism through the Council process, the regulations may be modified if appropriate.

Comment 3: WDFW expresses concern about lack of communication on the part of NMFS with WDFW regarding tribal whiting set asides, fishing plans and bycatch avoidance measures.

Response: NMFS acknowledges that interagency communications can be improved, and will work towards establishing more frequent and effective dialogue. NMFS, the treaty tribes, and the States of Washington and Oregon have initiated a process to determine a potential long term tribal allocation of Pacific whiting, and NMFS anticipates improved communications with all parties as that process moves forward.

American Seafoods Company

Comment 4: American Seafoods states that the 66,908 mt tribal allocation amount identified in the proposed rule is approximately 50,000 mt higher than the actual 2010 tribal harvest of Pacific whiting. American Seafoods states that the agency should conduct a good-faith evaluation of the realistic harvest by the tribes in 2011 in order to avoid unnecessarily limiting the allocation to the non-tribal whiting fishery.

Response: The tribal allocation identified in the proposed rule was based on the specific requests from the Makah and Quileute tribes. No comments were received from the two tribes during the comment period, and therefore NMFS has concluded that the tribal requests for 2011 have not changed. The allocation in the proposed rule is 23 percent of the U.S. OY. The proposed allocation, although higher than the absolute amounts of prior tribal allocations, is well within the range of past percentages (12.08-36.78 percent). While further negotiation on the long-term tribal allocation of Pacific whiting will occur among NMFS, the states, and the treaty Indian tribes, NMFS believes that current knowledge on the distribution and abundance of the coastal Pacific whiting stock supports a conclusion that the proposed tribal allocation of 66,908 mt lies within the range of the tribal treaty right to Pacific whiting.

The harvest of Pacific whiting by the Makah Tribe in 2010 was 18,255 mt. Although the final tribal allocation for 2011 is significantly higher than the 2010 harvest by the Makah tribe, there is no available information on which to base a conclusion that the 2011 tribal harvests, assuming participation by both the Makah and Quileute tribes, will be similar to the 2010 tribal whiting harvest.

Comment 5: American Seafoods also notes that the ability to rollover unused tribal whiting to the non-tribal sector was eliminated in the rulemaking process for FMP Amendments 20 and 21. They urge NMFS to promptly reinstate its rollover authority, stating their belief that there was no intent by the Council to remove that authority.

Response: See response to comments 1 and 2 above.

Comment 6: The combination of the proposed tribal allocation for 2011 and lack of a rollover procedure almost guarantees that the fisheries, collectively, will not achieve optimum yield. American Seafoods disagrees with NMFS' preliminary determination that management measures for the tribal fishery are consistent with MSA National Standards and other applicable laws. They state the proposed allocation and removal of rollover authority violates National Standards 1 and 8, preventing overfishing while achieving optimum yield, and taking into account the importance of fishery resources to fishing communities.

Response: NMFS disagrees with this comment. NMFS is obligated to establish a tribal allocation that is consistent with treaty rights as well as MSA national standards. As discussed in the proposed rule preamble, the tribal allocation in this rule is based on tribal requests and is within the likely amount of the total treaty right based on the best available scientific information regarding the migration of whiting through the tribes' usual and accustomed fishing grounds. NMFS believes that the tribal allocation in this final rule reflects a reasonable balance that provides for the tribes' exercise of their treaty right and complies with the MSA national standards. NMFS is not “limiting” the non-tribal harvest by allowing a higher tribal allocation in 2011 than in the past.

Comment 7: American Seafoods disagrees with the values of whiting NMFS used in the proposed rule ($160.00/mt), stating that Pacific whiting produces gross revenue of $1,000/mt. They state that if the tribal harvest remains similar to 2010, up to 50,000 mt of Pacific whiting would go unharvested, resulting in a direct revenue loss to the nation of approximately $50 million.

Response: American Seafoods is a major at-sea catcher-processor company. This response is tailored to some of the issues with establishing an ex-vessel price for at-sea companies and recognition that ex-vessel prices do not reflect wholesale or export prices. In the economic analysis to support this rulemaking, ex-vessel values were used to establish the value of the fishery. This is a fairly standard practice for Pacific Fishery Management Council economic analyses, as well as other documents. For example, the following is taken from a report by Northern Economics, Inc. “The Seafood Industry in Alaska's Economy” prepared for the Marine Conservation Alliance, At-Sea Processors Association, and Pacific Seafood Processors Association (January 2009.) “Ex-vessel value: This term nominally means the value of harvested but unprocessed fish as it transferred off of the harvesting vessel. Typically the ex-vessel value equals the amount of money that fishing vessels receive for unprocessed fish or shellfish; ex-vessel value is equal to the quantity of fish or shellfish retained for processing multiplied by the ex-vessel (dockside) per-unit price. Catcher processors do not technically generate an ex-vessel value, but a value may be imputed from catcher processor harvested fish.” Elsewhere this report states “Catcher processors, because their fish are fed directly into their on-board processing lines do not generate a financial transaction in which fish are bought or sold. Technically, therefore, there is no ex-vessel price associated with the raw/unprocessed fish. In order to account for the value of this fish, so that it can be compared to other fisheries, an ex-vessel value is often imputed for them. The imputed ex-vessel value is equal to the price per pound of shore based fish of the same species caught in a similar location with a similar gear multiplied by the amount of catcher processor harvests.” However, the commenter is correct in that use of ex-vessel values understates the total sales values (domestic or export). To impute a total sales value, several types of data are needed, including: total production of finished product by finished product; the average amount of raw fish used to make finished product (product recovery rate), and the average price of the finished product. For example, during 2010, according to U.S. foreign trade statistics, approximately 36,197 mt of headed and gutted product was exported at a value of $73.8 million. If the product recovery rate is 0.65 percent (1 lb of raw fish yields 0.65 lbs of finished product), 55,688 mt of raw hake yields 36,197 mt of headed and gutted product. (Headed and gutted fish is a major hake item. Unfortunately, export prices for surimi and fillets, the other major hake products, cannot be estimated as U.S. trade statistic categories on surimi and fillets do not distinguish between hake and other species such as pollock.) With a total finished value of $73.8 million, the imputed export price per ton of raw fish processed is $1,325 per mt ($73,800/55,688 mt).

At this time NMFS does not have very good data on the amount of finished products by sector (shoreside, tribal, mothership, and catcher-processor) or wholesale values and product recovery rates by finished product (headed and gutted, surimi, or fillets). NMFS anticipates that the industry will provide, possibly through the economic data collection processes associated with Amendment 20 to the Pacific Fishery Groundfish FMP, the data needed to develop wholesale values of industry production. For now, using the above example, NMFS will revise its analysis to include a statement that indicates that the use of ex-vessel values understates the total wholesale or export values associated with Pacific whiting products.

Pacific Whiting Conservation Cooperative (PWCC)

Comment 8: The PWCC urges NMFS to develop a remedy for 2011 that provides regulatory authority to reapportion unharvested whiting from the tribal to the non-tribal fishery, stating that Council intent during the Amendment 20 trawl rationalization process was that the decision to not allow reapportionment was applied solely to the non-tribal fishery. They feel that Council intent, past NMFS practice, and recent experience where tribal whiting has been stranded creates a situation where authority to reapportion potentially unharvested whiting should be reinstituted. They suggest action by NMFS to reassert and/or reinstitute its reapportionment authority.

Response: See response to comments 1 and 2 above.

Comment 9: PWCC urges NMFS to work with the states of Oregon, Washington, and the coastal treaty tribes, as well as consult with the fishing industry, to develop a long-term tribal whiting set aside.

Response: NMFS agrees with this suggestion, and intends to continue work on development of a long-term tribal whiting allocation for the future.

Comment 10: PWCC believes the proposed 2011 tribal whiting set aside is too high. PWCC points out that the proposed rule acknowledged that the tribal whiting set aside can unnecessarily limit the non-tribal fishery if set too high. Given past performance and lack of demonstrated fishing operations from the Quileute and Quinault tribes, whiting will be stranded, potentially foregoing tens of millions of dollars in gross revenue, in contravention of MSA National Standard 1. They suggest a realistic 2011 tribal whiting set aside.

Response: NMFS is obligated to establish a tribal allocation that is consistent with treaty rights as well as MSA national standards. NMFS believes that the tribal allocation in this final rule reflects a reasonable balance that provides for the tribes' exercise of their treaty right while maintaining compliance with the MSA national standards. See also response to comment 6 above.

Comment 11: PWCC acknowledges the Makah tribe's history in the fishery, including management plans, monitoring, and enforcement mechanisms, as compared to the Quileute and Quinault tribes, which have no experience or management plans. NMFS has provided no evidence that the Quileute and Quinault will have viable fishing operations with management plans addressing their potential fisheries, including plans for how bycatch and impacts on protected species will be minimized. PWCC suggests tangible fishing plans from each tribe.

Response: As discussed above, NMFS based its decision regarding the tribal allocation on the tribes' requests and statements of intent regarding participation in the fishery. During late 2010 and early 2011, NMFS held individual meetings with the Quileute and Makah tribes, as well as the Quinault Indian Nation. NMFS has discussed the tribes' fishing plans and preparations with them and understands that both the Makah and Quileute tribes have fishing plans that address operations, bycatch management, and catch reporting.

Classification

The final Pacific whiting specifications and management measures for 2011 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the Pacific Whiting Act of 2006, and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the FMP. The Administrator, Northwest Region, NMFS, has determined that this rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), NMFS finds good cause to waive prior public notice and comment on the 2011 Pacific whiting specifications as delaying this rule would be contrary to the public interest. The FMP requires that fishery specifications be evaluated periodically using the best scientific information available. The annual harvest specifications for Pacific whiting must be implemented by the start of the primary Pacific whiting season, which begins on May 15, 2011 or the primary whiting season will effectively remain closed. Pacific whiting differs from other groundfish species in that it has a shorter life span and the population fluctuates more swiftly. Thus, it is important to use the most recent stock assessment for Pacific whiting when determining OFLs and ACLs.

Every year, NMFS conducts a Pacific whiting stock assessment in which U.S. and Canadian scientists cooperate. The 2011 stock assessment for Pacific whiting was prepared in early 2011, which is the optimal time of year to conduct stock assessments for this species because the new 2010 data for the assessment are not available until January, 2011. The new data that were analyzed in the assessment include: Updated total catch; length and age data from the U.S. and Canadian fisheries; and biomass indices from the Joint U.S.-Canadian acoustic/midwater trawl surveys. Because of the delay in obtaining the new data and conducting the assessment, the results of Pacific whiting stock assessments are not available for use in developing the new harvest specifications until just before the Council's annual March meeting.

The primary Pacific whiting season begins on May 15, 2011. Because of the delay in obtaining the best available data for the assessment, it was not possible to provide for notice and comment before the start of the Pacific whiting season on May 15.

A delay in implementing the higher Pacific whiting harvest specifications to allow for notice and comment would shorten the primary whiting season and could prevent the tribal and non-tribal fisheries from attaining their higher 2011 allocations, and thus would result in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities.

NMFS also finds good cause to waive the 30-day delay in effectiveness 2011 Pacific whiting specifications and the 2011 tribal allocation of Pacific whiting pursuant to 5 U.S.C. 553(d)(3). A delay in implementing the higher Pacific whiting harvest specifications to allow for the 30-day delay in effectiveness would further shorten the primary whiting season and could prevent the tribal and non-tribal fisheries from attaining their higher 2011 allocations, and thus would result in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities. For these reasons, this final rule is made effective upon publication.

The environmental impacts associated with the Pacific whiting harvest levels that are adopted by this action are within the impacts in the FEIS for the 2011-2012 specification and management measures. In approving the 2011-2012 groundfish harvest specifications and management measures, NMFS issued a Record of Decision (ROD). The ROD was signed on April 27, 2011. Copies of the FEIS and the ROD are available from the Council (see ADDRESSES).

Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) and FRFA for the 2011-2012 harvest specifications and management measures. These analyses included the regulatory impacts of this action on small entities. The IRFA was summarized in the proposed rule published on November 3, 2010 (75 FR 67810). A summary of the FRFA analysis, which covers the entire groundfish regulatory scheme of which this is a part, was published in the final rule on May 11, 2011. An IRFA was also prepared for the proposed rule on the tribal fishery for Pacific whiting in 2011. This proposed rule was published on April 5, 2011 (76 FR 18709). A FRFA for that rule was also prepared, and a summary of that FRFA is contained below. A copy of this analysis is available from NMFS (see ADDRESSES). The need for and objectives of this final rule are contained in the SUMMARY and in the Background section under SUPPLEMENTARY INFORMATION.

The final 2011-2012 specifications and management measures were intended to allow West Coast commercial and recreational fisheries participants to fish the harvestable surplus of more abundant stocks, while also ensuring that those fisheries do not exceed the allowable catch levels intended to rebuild and protect overfished stocks. The harvest specifications are consistent with and based on the guidance of the Magnuson-Stevens Act, the National Standard guidelines, and the FMP for protecting and conserving fish stocks. Fishery management measures include trip and bag limits, size limits, time/area closures, gear restrictions, and others intended to allow year-round West Coast groundfish landings, without compromising overfished species rebuilding measures.

In recent years, the number of participants engaged in the Pacific whiting fishery has varied with changes in the Pacific whiting OY and economic conditions. Pacific whiting shoreside vessels (26 to 29), mothership processors (4 to 6), mothership catcher vessels (11-20), catcher/processors (5 to 9), Pacific whiting shoreside first receivers (8-16), and five tribal trawlers are the major units of this fishery. Additional tribal trawlers may enter the fishery. NMFS records suggest the gross annual revenue for each of the catcher/processor and mothership operations on the Pacific coast exceeds $4,000,000. Therefore, they are not considered small businesses. NMFS records also show that 10-43 catcher vessels have taken part in the mothership fishery yearly since 1994. These companies are all assumed to be small businesses as defined by the RFA (although some of these vessels may be affiliated with larger processing companies). Since 1994, 26-31 catcher vessels participated in the shoreside fishery annually. These companies are all assumed to be small businesses, although some of these vessels may be affiliated with larger processing companies. This is the first year of the new trawl rationalization program where: The shorebased trawler sector is managed by an individual fishing quota program; the catcher-processor sector will continue to be managed by a co-op; and all participants in the mothership program will be fishing under a single mothership co-op. Therefore, it is expected that through rationalization, the number of participants in these sectors will decrease from previous levels. Based on a review of the available data, tribal trawlers impacted by this rule are small entities, and the Tribes are small government jurisdictions.

Pacific whiting has grown in importance, especially in recent years. Through the 1990s the volume of Pacific whiting landed in the fishery increased. In 2002 and 2003, landings of Pacific whiting declined due to information showing the stock was depleted and the subsequent regulations that restricted harvest in order to rebuild the species. Over the years 2003-2007 estimated Pacific whiting ex-vessel values averaged about $29 million. In 2008, these participants harvested about 248,000 mt of whiting worth about $63 million in ex-vessel value, based on shoreside ex-vessel prices of $254 per mt—the highest ex-vessel revenues and prices on record. In comparison, the 2007 fishery harvested about 224,000 mt worth $36 million at an average ex-vessel price of about $160 per mt. In 2009, tribal and non-tribal fleets harvested about 122,000 mt of whiting worth about $14 million. During 2009, ex-vessel prices declined to about $119 per mt, presumably due to the worldwide recession. For 2010, the preliminary ex-vessel price returned to $160 per mt, leading to about $27 million in revenues in 2010, based on a total harvest of 170,000 mt. All sectors should see increased revenues as the total allowable level of harvest has increased from 193,935 mt in 2010 to 290,903 mt in 2011.

However, the use of ex-vessel values as a means to impute the value of the fishery does not take into account the wholesale or export value of the fishery or the costs of harvesting and processing whiting into a finished product. NMFS does not have adequate data to make a full assessment of these values. However, there are two indicators that show current trends: The export price of headed and gutted whiting and the price of fuel. Seafood processors convert Pacific whiting into surimi, fillets, fish meal, and headed and gutted products. Besides high OY levels in recent years, increased prices for headed and gutted Pacific whiting have contributed to the increase in ex-vessel revenues. From 2004-2007, wholesale prices for headed and gutted Pacific whiting product increased from about $1,200 per mt to $1,600 per mt. In 2008, wholesale prices averaged $1,980 per mt, according to U.S. Export Trade statistics, and in 2009, prices fell slightly to $1,950 per mt. In 2010, prices increased to almost $2,040 per mt. Fuel prices, a major expense for Pacific whiting vessels, also increased dramatically. For example, at the start of the primary fishery in June 2008 fuel prices were about $4.30 per gallon, compared to June 2007 levels of $2.70 per gallon. However, by 2009, these prices fell from their June, 2008 high to about $2.32 per gallon. As indicated by Newport, Oregon fuels prices, prices are increasing. In July of 2009, Newport, Oregon fuel prices were about $2.20 a gallon. In July of 2010 they increased to $2.50 per gallon, and as of April 2011, the price of fuel is $3.75 per gallon.

The fisheries' ability to harvest the entire 2011 Pacific whiting ACL will depend on how well the industry limits the bycatch of overfished species, as well as the ability of each sector to harvest their Pacific whiting allocation. For example, in 2008 the Pacific whiting shoreside fishery was closed prematurely because of overfished species bycatch issues, leaving a major portion of its allocation unharvested. Although NMFS transferred the unharvested allocations to the other nontribal fleets, by year's end, 7 percent of the 2008 Pacific whiting OY remained unharvested. Under this final rule, there is no legal mechanism to reapportion any sector's unutilized allocation. (See response to Comment 1.)

NMFS did not consider a broad range of alternatives to the tribal allocation because the allocation is based primarily on the requests of the tribes for a level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate here, where based on the information available to NMFS the requested amount appears to be within the amount to which the tribes are entitled. A higher amount would arguably be within the scope of the treaty right, but would unnecessarily limit the non-tribal fishery. A no action alternative was considered, but the regulatory structure provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2011, inconsistent with NMFS' obligation to manage the fishery consistent with the tribes' treaty rights. Given that the Makah and Quileute tribes have made specific requests for allocations in 2011, this alternative received no further consideration.

With the implementation of Fishery Management Plan amendments 20 and 21, the ability to reapportion Pacific whiting from tribal to non-tribal fisheries was eliminated. Similarly, unharvested whiting allocated to the non-tribal shoreside, mothership, and catcher-processor sectors cannot be reapportioned among these sectors. So, unlike 2010, the regulations do not provide NMFS a specific mechanism to reapportion unharvested tribal whiting to the non-tribal sectors, and will not be able to reapportion among the non-tribal sectors. Pending markets, available bycatch, and the ability of tribal fleets to develop the capacity to harvest the tribal allocation may result in unharvested Pacific whiting because there is no regulatory mechanism to reapportion. Similarly, there may be unharvested Pacific whiting in the other sectors as well.

Pursuant to Executive Order 13175, this action was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act, 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, regulations implementing the FMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the FMP request, in writing, new allocations or regulations specific to the tribes before the first of the two meetings at which the Council considers groundfish management measures. Both the Makah and Quileute Tribes requested a Pacific whiting allocation for 2011. The regulations at 50 CFR 660.50(d)(2) further state that, “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” Over the last eight months, NMFS has met with each of the tribes and have had additional discussions regarding their plans for 2011.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

There are no reporting, recordkeeping or other compliance requirements in the final rule.

No Federal rules have been identified that duplicate, overlap, or conflict with this action.

NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the PCGFMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the PCGFMP was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS reinitiated a formal section 7 consultation under the ESA in 2005 for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999 Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering reinitiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.

NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000.

Since 1999, annual Chinook bycatch has averaged about 8,450. The Chinook ESUs most likely affected by the whiting fishery have generally improved in status since the 1999 section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs.

Lower Columbia River coho (70 FR 37160, June 28, 2005) were recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

The Southern Distinct Population Segment (DPS) of green sturgeon was listed as threatened under the ESA (71 FR 17757, April 7, 2006). The southern DPS of Pacific eulachon was listed as threatened on March 18, 2010, under the ESA (75 FR 13012). NMFS has reinitiated consultation on the fishery, including impacts on green sturgeon, eulachon, marine mammals, and turtles. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, the proposed action would not jeopardize any listed species, would not adversely modify any designated critical habitat, and would not result in any irreversible or irretrievable commitment of resources that would have the effects of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing, and Indian fisheries

Dated: May 16, 2011.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

PART 660—FISHERIES OFF WEST COAST STATES

1. The authority citation for part 660 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq., 16 USC 773 et seq., and 16 U.S.C. 7001 et seq.

2. In § 660.50 paragraph (f)(4) is revised to read as follows:

§ 660.50

Pacific Coast treaty Indian fisheries.

* * * * *

(f) * * *

(4) Pacific whiting. The tribal allocation for 2011 is 66,908 mt.

* * * * *

3. In part 660, subpart C,

a. Revise Table 1a,

b. Revise Table 1b to read as follows:

a/ ACLs and HGs are specified as total catch values. Fishery harvest guidelines (HGs) means the harvest guideline or quota after subtracting from the ACL or ACT any allocation for the Pacific Coast treaty Indian Tribes, projected research catch, deductions for fishing mortality in non-groundfish fisheries, as necessary, and set-asides for EFPs.

b/ Lingcod north (Oregon and Washington). A new lingcod stock assessment was prepared in 2009. The lingcod north biomass was estimated to be at 62 percent of its unfished biomass in 2009. The OFL of 2,438 mt was calculated using an FMSYproxy of F45%. The ABC of 2,330 mt was based on a 4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it's a category 1 species. Because the stock is above B40% coastwide, the ACL is set equal to the ABC. ACL is further reduced for the Tribal fishery (250 mt), incidental open access fishery (16 mt) and research catch (5 mt), resulting in a fishery HG of 2,059 mt.

c/ Lingcod south (California). A new lingcod stock assessment was prepared in 2009. The lingcod south biomass was estimated to be at 74 percent of its unfished biomass in 2009. The OFL of 2,523 mt was calculated using an FMSYproxy of F45%. The ABC of 2,102 mt was based on a 17 percent reduction from the OFL (σ = 0.72/P* = 0.40) as it's a category 2 species. Because the stock is above B40% coastwide, the ACL is set equal to the ABC. An incidental open access set-aside of 7 mt is deducted from the ACL, resulting in a fishery HG of 2,095 mt.

d/ Pacific Cod. The 3,200 mt OFL is based on the maximum level of historic landings. The ABC of 2,222 mt is a 31 percent reduction from the OFL (σ = 1.44/P* = 0.40) as it's a category 3 species. The 1,600 mt ACL is the OFL reduced by 50 percent as a precautionary adjustment. A set-aside of 400 mt is deducted from the ACL for the Tribal fishery resulting in a fishery HG of 1,200 mt.

e/Pacific whiting. The most recent stock assessment was prepared in January 2011. The stock assessment estimated the Pacific whiting biomass to be at 126 percent (50th percentile estimate of depletion, using two equally plausible models that were averaged together) of its unfished biomass in 2011. The U.S.-Canada coastwide OFL is 973,700 mt. The U.S. share of the OFL is 719,370 mt (73.88 percent of the coastwide OFL). The U.S.-Canada coastwide ACL is 393,751 mt, with a corresponding U.S. ACL (73.88 percent of the coastwide ACL) of 290,903 mt. The ACL is reduced by 66,908 mt for the tribal allocation, and a set-aside of 3,000 mt is deducted for the incidental open access fishery and research catch, resulting in a fishery HG of 220,995 mt.

f/Sablefish north. A coastwide sablefish stock assessment was prepared in 2007. The coastwide sablefish biomass was estimated to be at 38.3 percent of its unfished biomass in 2007. The coastwide OFL of 8,808 mt was based on the 2007 stock assessment with a FMSYproxy of F45%. The ABC of 8,418 mt is a 4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it's a category 1 species. The 40-10 harvest policy was applied to the ABC to derive the coastwide ACL and then the ACL was apportioned north and south of 36° N. lat, using the average of annual swept area biomass (2003-2008) from the NMFS NWFSC trawl survey, between the northern and southern areas with 68 percent going to the area north of 36° N. lat. and 32 percent going to the area south of 36° N. lat. The northern portion of the ACL is 5,515 mt and is reduced by 552 mt for the Tribal allocation (10 percent of the ACL north of 36° N. lat.) The 552 mt Tribal allocation is reduced by 1.5 percent to account for discard mortality. Detailed sablefish allocations are shown in Table 1c.

g/Sablefish South. That portion of the coastwide ACL apportioned to the area south of 36° N. lat. is 2,595 mt (32 percent). An additional 50 percent reduction was made for uncertainty resulting in an ACL of 1,298 mt. A set-aside of 34 mt is deducted from the ACL for EFP catch (26 mt), the incidental open access fishery (6 mt) and research catch (2 mt), resulting in a fishery HG of 1,264 mt.

h/Cabezon (Oregon). A new cabezon stock assessment was prepared in 2009. The cabezon biomass in Oregon was estimated to be at 51 percent of its unfished biomass in 2009. The OFL of 52 mt was calculated using an FMSYproxy of F45%. The ABC of 50 mt was based on a 4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it's a category 1 species. Because the stock is above B40% coastwide, the ACL is set equal to the ABC. No set-asides were removed so the fishery HG is also equal to the ACL at 50 mt. Cabezon in waters off Oregon were removed from the “other fish” complex, while cabezon of Washington will continue to be managed within the “other fish” complex.

i/Cabezon (California). A new cabezon stock assessment was prepared in 2009. The cabezon south biomass was estimated to be at 48 percent of its unfished biomass in 2009. The OFL of 187 mt was calculated using an FMSYproxy of F45%. The ABC of 179 mt was based on a 4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it's a category 1 species. Because the stock is above B40% coastwide, the ACL is set equal to the ABC. No set-asides were removed so the fishery HG is also equal to the ACL at 179 mt.

j/Dover sole. A 2005 Dover sole assessment estimated the stock to be at 63 percent of its unfished biomass in 2005. The OFL of 44,400 mt is based on the results of the 2005 stock assessment with an FMSYproxy of F30%. The ABC of 42,436 mt is a 4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it's a category 1 species. Because the stock is above B25% coastwide, the ACL could be set equal to the ABC. However, the ACL of 25,000 mt is set at a level below the ABC and higher than the maximum historical landed catch. A set-aside of 1,590 mt is deducted from the ACL for the Tribal fishery (1,497 mt), the incidental open access fishery (55 mt) and research catch (38 mt), resulting in a fishery HG of 23,410 mt.

k/English sole. A stock assessment update was prepared in 2007 based on the full assessment in 2005. The stock was estimated to be at 116 percent of its unfished biomass in 2007. The OFL of 20,675 mt is based on the results of the 2007 assessment update with an FMSYproxy of F30%. The ABC of 19,761 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. Because the stock is above B25%, the ACL was set equal to the ABC. A set-aside of 100 mt is deducted from the ACL for the Tribal fishery (91 mt), the incidental open access fishery (4 mt) and research catch (5 mt), resulting in a fishery HG of 19,661 mt.

l/Petrale sole. A petrale sole stock assessment was prepared for 2009. In 2009 the petrale sole stock was estimated to be at 12 percent of its unfished biomass coastwide, resulting in the stock being declared as overfished. The OFL of 1,021 mt is based on the 2009 assessment with a F30% FMSYproxy. The ABC of 976 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL is set equal to the ABC and corresponds to an SPR harvest rate of 31 percent. A set-aside of 65.4 mt is deducted from the ACL for the Tribal fishery (45.4 mt), the incidental open access fishery (1 mt), EFP catch (2 mt) and research catch (17 mt), resulting in a fishery HG of 911 mt.

m/Arrowtooth flounder. The stock was last assessed in 2007 and was estimated to be at 79 percent of its unfished biomass in 2007. The OFL of 18,211 mt is based on the 2007 assessment with a F30% FMSYproxy. The ABC of 15,174 mt is a 17 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 species. Because the stock is above B25%, the ACL is set equal to the ABC. A set-aside of 2,078 mt is deducted from the ACL for the Tribal fishery (2,041 mt), the incidental open access fishery (30 mt), and research catch (7 mt), resulting in a fishery HG of 13,096 mt.

n/Starry Flounder. The stock was assessed for the first time in 2005 and was estimated to be above 40 percent of its unfished biomass in 2005. For 2011, the coastwide OFL of 1,802 mt is based on the 2005 assessment with a FMSYproxy of F30%. The ABC of 1,502 mt is a 17 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 species. Because the stock is above B25%, the ACL could have been set equal to the ABC. As a precautionary measure, the ACL of 1,352 mt is a 25 percent reduction from the OFL, which is a 10 percent reduction from the ABC. A set-aside of 7 mt is deducted from the ACL for the Tribal fishery (2 mt), the incidental open access fishery (5 mt), resulting in a fishery HG of 1,345 mt.

o/“Other flatfish” are the unassessed flatfish species that do not have individual OFLs/ABC/ACLs and include butter sole, curlfin sole, flathead sole, Pacific sand dab, rex sole, rock sole, and sand sole. The other flatfish OFL of 10,146 mt is based on the summed contribution of the OFLs determined for the component stocks. The ABC of 7,044 mt is a 31 percent reduction from the OFL (σ=1.44/P*=0.40) as all species in this complex are category 3 species. The ACL of 4,884 mt is equivalent to the 2010 OY, because there have been no significant changes in the status or management of stocks within the complex. A set-aside of 198 mt is deducted from the ACL for the Tribal fishery (60 mt), the incidental open access fishery (125 mt), and research catch (13 mt), resulting in a fishery HG of 4,686 mt.

p/POP. A POP stock assessment update was prepared in 2009, based on the 2003 full assessment, and the stock was estimated to be at 29 percent of its unfished biomass in 2009. The OFL of 1,026 mt for the Vancouver and Columbia areas is based on the 2009 stock assessment update with an F50% FMSYproxy. The ABC of 981 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL of 180 mt is based on a rebuilding plan with a target year to rebuild of 2020 and an SPR harvest rate of 86.4 percent. An ACT of 157 mt is being established to address management uncertainty and increase the likelihood that total catch remains within the ACL. A set-aside of 12.8 mt is deducted from the ACT for the Tribal fishery (10.9 mt), EFP catch (0.1 mt) and research catch (1.8 mt), resulting in a fishery HG of 144.2 mt.

q/Shortbelly rockfish. A non-quantitative assessment was conducted in 2007. The spawning stock biomass of shortbelly rockfish was estimated at 67 percent of its unfished biomass in 2005. The OFL of 6,950 mt was recommended for the stock in 2011 with an ABC of 5,789 mt (σ=0.72 with a P* of 0.40). The 50 mt ACL is slightly higher than recent landings, but much lower than previous OYs in recognition of the stock's importance as a forage species in the California Current ecosystem. A set-aside of 1 mt for research catch results in a fishery HG of 49 mt.

r/Widow rockfish. The stock was assessed in 2009 and was estimated to be at 39 percent of its unfished biomass in 2009. The OFL of 5,097 mt is based on the 2009 stock assessment with an F50% FMSYproxy. The ABC of 4,872 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. A constant catch strategy of 600 mt, which corresponds to an SPR harvest rate of 91.7 percent, will be used to rebuild the widow rockfish stock consistent with the rebuilding plan and a TTARGETof 2010. A set-aside of 61 mt is deducted from the ACL for the Tribal fishery (45 mt), the incidental open access fishery (3.3 mt), EFP catch (11 mt) and research catch (1.6 mt), resulting in a fishery HG of 539.1 mt.

s/Canary rockfish. A canary rockfish stock assessment update, based on the full assessment in 2007, was completed in 2009 and the stock was estimated to be at 23.7 percent of its unfished biomass coastwide in 2009. The coastwide OFL of 614 mt is based on the new assessment with a FMSYproxy of F50%. The ABC of 586 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL of 102 mt is based on a rebuilding plan with a target year to rebuild of 2027 and a SPR harvest rate of 88.7 percent. A set-aside of 20 mt is deducted from the ACL for the Tribal fishery (9.5 mt), the incidental open access fishery (2 mt), EFP catch (1.3 mt) and research catch (7.2 mt) resulting in a fishery HG of 82 mt. Recreational HGs are being specified as follows: Washington recreational, 2.0; Oregon recreational 7.0 mt; and California recreational 14.5 mt.

t/Chilipepper rockfish. The coastwide chilipepper stock was assessed in 2007 and estimated to be at 71 percent of its unfished biomass coastwide in 2006. Given that chilipepper rockfish are predominantly a southern species, the stock is managed with stock-specific harvest specifications south of 40°10′ N. lat. and within minor shelf rockfish north of 40°10′ N. lat. South of 40°10′ N. lat., the OFL of 2,073 mt is based on the 2007 assessment with an FMSYproxy of F50%. The ABC of 1,981 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. Because the biomass is estimated to be above 40 percent of the unfished biomass, the ACL was set equal to the ABC. The ACL is reduced by the incidental open access fishery (5 mt), and research catch (9 mt), resulting in a fishery HG of 1,966 mt.

u/Bocaccio. A bocaccio stock assessment was prepared in 2009 from Cape Mendocino to Cape Blanco (43° N. lat.) Given that bocaccio rockfish are predominantly a southern species, the stock is managed with stock-specific harvest specifications south of 40°10′ N. lat. and within minor shelf rockfish north of 40°10′ N. lat. The bocaccio stock was estimated to be at 28 percent of its unfished biomass in 2009. The OFL of 737 mt is based on the 2009 stock assessment with an FMSYproxy of F50%. The ABC of 704 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The 263 mt ACL is based on a rebuilding plan with a target year to rebuild of 2022 and a SPR harvest rate of 77.7 percent. A set-aside of 13.4 mt is deducted from the ACL for the incidental open access fishery (0.7 mt), EFP catch (11 mt) and research catch (1.7 mt), resulting in a fishery HG of 249.6 mt.

v/Splitnose rockfish. A new coastwide assessment was prepared in 2009 that estimated the stock to be at 66 percent of its unfished biomass in 2009. Splitnose in the north is managed under the minor slope rockfish complex and south of 40°10′ N. lat. with species-specific harvest specifications. South of 40°10′ N. lat. the OFL of 1,529 mt is based on the 2009 assessment with an FMSYproxy of F50%. The ABC of 1,461 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. Because the unfished biomass is estimated to be above 40 percent of the unfished biomass, the ACL is set equal to the ABC. A set-aside of 7 mt is deducted from the ACL for research catch, resulting in a fishery HG of 1,454 mt.

w/Yellowtail rockfish. A yellowtail rockfish stock assessment was last prepared in 2005 for the Vancouver, Columbia, and Eureka areas. Yellowtail rockfish was estimated to be at 55 percent of its unfished biomass in 2005. The OFL of 4,566 mt is based on the 2005 stock assessment with the FMSYproxy of F50%. The ABC of 4,364 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL was set equal to the ABC, because the stock is above B40%. A set-aside of 507 mt is deducted from the ACL for the Tribal fishery (490 mt), the incidental open access fishery (3 mt), EFP catch (10 mt) and research catch (4 mt), resulting in a fishery HG of 3,857 mt.

x/Shortspine thornyhead. A coastwide stock assessment was conducted in 2005 and the stock was estimated to be at 63 percent of its unfished biomass in 2005. A coastwide OFL of 2,384 mt is based on the 2005 stock assessment with a F50% FMSYproxy. The coastwide ABC of 2,279 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. For the portion of the stock that is north of 34°27′ N. lat., the ACL is 1,573 mt, 66 percent of the coastwide OFL. A set-aside of 45 mt is deducted from the ACL for the Tribal fishery (38 mt), the incidental open access fishery (2 mt), and research catch (5 mt) resulting in a fishery HG of 1,528 mt for the area north of 34°27′ N. lat. For that portion of the stock south of 34°27′ N. lat. the ACL is 405 mt which is 34 percent of the coastwide OFL, reduced by 50 percent as a precautionary adjustment. A set-aside of 42 mt is deducted from the ACL for the incidental open access fishery (41 mt), and research catch (1 mt) resulting in a fishery HG of 363 mt for the area south of 34°27′ N. lat. The sum of the northern and southern area ACLs (1,978 mt) is a 13 percent reduction from the coastwide ABC.

y/Longspine thornyhead. A coastwide stock assessment was conducted in 2005 and the stock was estimated to be at 71 percent of its unfished biomass in 2005. A coastwide OFL of 3,577 mt is based on the 2005 stock assessment with a F50% FMSYproxy. The ABC of 2,981 mt is a 17 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 species. For the portion of the stock that is north of 34°27′ N. lat., the ACL is 2,119 mt, and is 79 percent of the coastwide OFL for the biomass found in that area reduced by an additional 25 percent as a precautionary adjustment. A set-aside of 44 mt is deducted from the ACL for the Tribal fishery (30 mt), the incidental open access fishery (1 mt), and research catch (13 mt) resulting in a fishery HG of 2,075 mt. For that portion of the stock south of 34°27′ N. lat. the ACL is 376 mt and is 21 percent of the coastwide ABC reduced by 50 percent as a precautionary adjustment. A set-aside of 3 mt is deducted from the ACL for the incidental open access fishery (2 mt), and research catch (1 mt) resulting in a fishery HG of 373 mt. The sum of the northern and southern area ACLs (2,495 mt) is a 16 percent reduction from the coastwide ABC.

z/Cowcod. A stock assessment update was prepared in 2009 and the stock was estimated to be 5 percent (bounded between 4 and 21 percent) of its unfished biomass in 2009. The OFLs for the Monterey and Conception areas were summed to derive the south of 40°10 N.′ lat. OFL of 13 mt. The ABC for the area south of 40°10′ N. lat. is 10 mt. The assessed portion of the stock in the Conception Area was considered category 2, with a Conception Area contribution to the ABC of 5 mt, which is a 17 percent reduction from the OFL (σ=0.72/P*=0.35). The unassessed portion of the stock in the Monterrey area was considered a category 3 stock, with a contribution to the ABC of 5 mt, which is a 29 percent reduction from the OFL (σ=1.44/P*=0.40). A single ACL of 3 mt is being set for both areas combined. The ACL of 3 mt is based on a rebuilding plan with a target year to rebuild of 2068 and an SPR rate of 82.7 percent. The amount anticipated to be taken during research activity is 0.1 mt and the amount expected to be taken during EFP activity is 0.2 mt, which results in a fishery HG of 2.7 mt.

aa/Darkblotched rockfish. A stock assessment update was prepared in 2009, based on the 2007 full assessment, and the stock was estimated to be at 27.5 percent of its unfished biomass in 2009. The OFL is projected to be 508 mt and is based on the 2009 stock assessment with an FMSYproxy of F50%. The ABC of 485 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL of 298 mt is based on a rebuilding plan with a target year to rebuild of 2025 and an SPR harvest rate of 64.9 percent. A set-aside of 18.7 mt is deducted from the ACL for the Tribal fishery (0.1 mt), the incidental open access fishery (15 mt), EFP catch (1.5 mt) and research catch (2.1 mt), resulting in a fishery HG of 279.3 mt.

bb/Yelloweye rockfish. The stock was assessed in 2009 and was estimated to be at 20.3 percent of its unfished biomass in 2009. The 48 mt coastwide OFL was derived from the base model in the new stock assessment with an FMSYproxy of F50%. The ABC of 46 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The 17 mt ACL is based on a rebuilding plan with a target year to rebuild of 2074 and an SPR harvest rate of 76 percent. A set-aside of 5.9 mt is deducted from the ACT for the Tribal fishery (2.3 mt), the incidental open access fishery (0.2 mt), EFP catch (0.1 mt) and research catch (3.3 mt) resulting in a fishery HG of 11.1 mt. Recreational HGs are being established as follows: Washington recreational, 2.6; Oregon recreational 2.4 mt; and California recreational 3.1 mt.

cc/California Scorpionfish was assessed in 2005 and was estimated to be at 80 percent of its unfished biomass in 2005. The OFL of 141 mt is based on the new assessment with a harvest rate proxy of F50%. The ABC of 135 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. Because the stock is above B40%, the ACL is set equal to the ABC. A set-aside of 2 mt is deducted from the ACL for the incidental open access fishery, resulting in a fishery HG of 133 mt.

dd/Black rockfish north (Washington). A stock assessment was prepared for black rockfish north of 45°56′ N. lat. (Cape Falcon, Oregon) in 2007. The biomass in the north was estimated to be at 53 percent of its unfished biomass in 2007. The OFL from the assessed area is based on the 2007 assessment with a harvest rate proxy of F50%. The resulting OFL for the area north of 46°16′ N. lat. (the Washington/Oregon Border) is 445 mt and is 97 percent of the OFL from the assessed area. The ABC of 426 mt for the north of 46°16′ N. Lat. is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL was set equal to the ABC, since the stock is above B40%. A set-aside of 14 mt for the Tribal fishery results in a fishery HG of 412 mt.

ee/Black rockfish south (Oregon and California). A 2007 stock assessment was prepared for black rockfish south of 45°56′ N. lat. (Cape Falcon, Oregon) to the southern limit of the stock's distribution in Central California in 2007. The biomass in this area was estimated to be at 70 percent of its unfished biomass in 2007. The OFL from the assessed area is based on the 2007 assessment with a harvest rate proxy of F50%. Three percent of the OFL from the stock assessment prepared for black rockfish north of 45°56′ N. lat. is added to the OFL from the assessed area south of 45° 56′ N. lat. The resulting OFL for the area south of 46°16′ N. lat. is 1,217 mt. The ABC of 1,163 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL was set at 1,000 mt, which is a constant catch strategy designed to keep the stock biomass above B40%. There are no set-asides thus the fishery HG is equal to the ACL. The black rockfish ACL in the area south of 46°16′ N. lat., is subdivided with separate HGs being set for the area north of 42° N. lat. (580 mt/58 percent) and for the area south of 42° N. lat. (420 mt/42 percent).

ff/Minor rockfish north is comprised of three minor rockfish sub-complexes: Nearshore, shelf, and slope rockfish. The OFL of 3,767 mt is the sum of OFLs for nearshore (116 mt), shelf (2,188 mt) and slope (1,462 mt) north sub-complexes. Each sub-complex OFL is the sum of the OFLs of the component species within the complex. The ABCs for the minor rockfish complexes and sub-complexes are based on a sigma value of 0.36 for category 1 stocks (splitnose and chilipepper rockfish), 0.72 for category 2 stocks (greenstriped rockfish and blue rockfish in California) and 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting minor rockfish north ABC, which is the summed contribution of the ABCs for the contributing species in each sub-complex (nearshore, shelf, and slope) is 3,363 mt. The ACL of 2,227 mt for the complex is the sum of the sub-complex ACLs. The sub-complex ACLs are the sum of the component stock ACLs, which are less than or equal to the ABC contribution of each component stock. There are no set-asides for the nearshore sub-complex, thus the fishery HG is equal to the ACL, which is 99 mt. The set-aside for the shelf sub-complex is 43 mt—Tribal fishery (9 mt), the incidental open access fishery (26 mt), EFP catch (4 mt) and research catch (4 mt) resulting in a shelf fishery HG of 925 mt. The set-aside for the slope sub-complex is 68 mt—Tribal fishery (36 mt), the incidental open access fishery (19 mt), EFP catch (2 mt) and research catch (11 mt), resulting in a slope fishery HG of 1,092 mt.

gg/Minor rockfish south is comprised of three minor rockfish sub-complexes: Nearshore, shelf, and slope. The OFL of 4,302 mt is the sum of OFLs for nearshore (1,156 mt), shelf (2,238 mt) and slope (907 mt) south sub-complexes. Each sub-complex OFL is the sum of the OFLs of the component species within the complex. The ABCs for the minor rockfish complexes and sub-complexes are based on a sigma value of 0.36 for category 1 stocks (gopher rockfish north of 34°27′ N. lat., blackgill), 0.72 for category 2 stocks (blue rockfish in the assessed area, greenstriped rockfish, and bank rockfish) and 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting minor rockfish south ABC, which is the summed contribution of the ABCs for the contributing species in each sub-complex, is 3,723 mt (1,001 mt nearshore, 1,885 mt shelf, and 836 mt slope). The ACL of 2,341 mt for the complex is the sum of the sub-complex ACLs. The sub-complex ACLs are the sum of the component stock ACLs, which are less than or equal to the ABC contribution of each component stock. There are no set-asides for the nearshore sub-complex, thus the fishery HG is equal to the ACL, which is 1,001 mt. The set-aside for the shelf sub-complex is 13 mt for the incidental open access fishery (9 mt), EFP catch (2 mt) and research catch (2 mt), resulting in a shelf fishery HG of 701 mt. The set-aside for the slope sub-complex is 27 mt for the incidental open access fishery (17 mt), EFP catch (2 mt) and research catch (8 mt), resulting in a slope fishery HG of 599 mt.

hh/Longnose skate. A stock assessment was prepared in 2007 and the stock was estimated to be at 66 percent of its unfished biomass. The OFL of 3,128 mt is based on the 2007 stock assessment with an FMSYproxy of F45%. The ABC of 2,990 mt is a 4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL of 1,349 is equivalent to the 2010 OY and represents a 50% increase in the average 2004-2006 mortality (landings and discard mortality). The set-aside for longnose skate is 129 mt for the Tribal fishery (56 mt), incidental open access fishery (65 mt), and research catch (8 mt), resulting in a fishery HG of 1,220 mt.

ii/ “Other fish” contains all unassessed groundfish FMP species that are neither rockfish (family Scorpaenidae) nor flatfish. These species include big skate, California skate, leopard shark, soupfin shark, spiny dogfish, finescale codling, Pacific rattail, ratfish, cabezon off Washington, and kelp greenling. The OFL of 11,150 mt is equivalent to the 2010 MSY harvest level minus the 50 mt contribution made for cabezon off Oregon, which is a newly assessed stock to be managed with stock-specific specifications. The ABC of 7,742 mt is a 31 percent reduction from the OFL (σ = 1.44/P* = 0.40) as all of the stocks in the “other fish” complex are category 3 species. The ACL of 5,575 mt is equivalent to the 2010 OY, minus half of the OFL contribution for Cabezon off of Oregon (25 mt). The fishery HG is equal to the ACL.

a/ Allocations decided through the biennial specification process.

b/ 30 mt of the total trawl allocation for POP is allocated to the whiting fisheries, as follows: 12.6 mt for the shorebased IFQ fishery, 7.2 mt for the mothership fishery, and 10.2 mt for the catcher/processor fishery. The tonnage calculated here for the whiting portion of the shorebased IFQ fishery contributes to the total shorebased trawl allocation, which is found at 660.140(d)(1)(ii)(D).

c/ 14.1 mt of the total trawl allocation of canary rockfish is allocated to the whiting fisheries, as follows: 5.9 mt for the shorebased IFQ fishery, 3.4 mt for the mothership fishery, and 4.8 mt for the catcher/processor fishery. The tonnage calculated here for the whiting portion of the shorebased IFQ fishery contributes to the total shorebased trawl allocation, which is found at 660.140(d)(1)(ii)(D).

d/ 25 mt of the total trawl allocation for darkblotched rockfish is allocated to the whiting fisheries, as follows: 10.5 mt for the shorebased IFQ fishery, 6.0 mt for the mothership fishery, and 8.5 mt for the catcher/processor fishery. The tonnage calculated here for the whiting portion of the shorebased IFQ fishery contributes to the total shorebased trawl allocation, which is found at 660.140(d)(1)(ii)(D).

e/ 52 percent (255 mt) of the total trawl allocation for widow rockfish is allocated to the whiting fisheries, as follows: 107.1 mt for the shorebased IFQ fishery, 61.2 mt for the mothership fishery, and 86.7 mt for the catcher/processor fishery. The tonnage calculated here for the whiting portion of the shorebased IFQ fishery contributes to the total shorebased trawl allocation, which is found at 660.140(d)(1)(ii)(D).

4. In § 660.140, paragraph (d)(1)(ii)(D) is revised as follows:

§ 660.140

Shorebased IFQ program.

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(d) * * *

(1) * * *

(ii) * * *

(D) For the 2011 trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:

IFQ Species	Management area	Shorebased trawl allocation (mt)
Lingcod		1,863.30
Pacific cod		1,135.00
Pacific Whiting		92,817.90
Sablefish	North of 36° N. lat.	2,546.34
Sablefish	South of 36° N. lat.	530.88
Dover sole		22,234.50
English sole		18,672.95
PETRALE SOLE		871.00
Arrowtooth flounder		12,431.20
Starry flounder		667.50
Other flatfish		4,197.40
PACIFIC OCEAN PERCH	North of 40°10′ N. lat.	119.36
WIDOW ROCKFISH		342.62
CANARY ROCKFISH		25.90
Chilipepper rockfish	South of 40°10′ N. lat.	1,475.25
BOCACCIO ROCKFISH	South of 40°10′ N. lat.	60.00
Splitnose rockfish	South of 40°10′ N. lat.	1,381.30
Yellowtail rockfish	North of 40°10′ N. lat.	3,094.16
Shortspine thornyhead	North of 34°27′ N. lat.	1,431.60
Shortspine thornyhead	South of 34°27′ N. lat.	50.00
Longspine thornyhead	North of 34°27′ N. lat.	1,966.25
COWCOD	South of 40°10′ N. lat.	1.80
DARKBLOTCHED ROCKFISH		250.84
YELLOWEYE ROCKFISH		0.60
Minor shelf rockfish complex	North of 40°10′ N. lat.	522.00
Minor shelf rockfish complex	South of 40°10′ N. lat.	86.00
Minor slope rockfish complex	North of 40°10′ N. lat.	829.52
Minor slope rockfish complex	South of 40°10′ N. lat.	377.37

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