E9-25984. Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Inseason Adjustments

AGENCY:

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

ACTION:

Final rule; inseason adjustments to biennial groundfish management measures; request for comments.

SUMMARY:

This final rule announces inseason changes to management measures in the commercial Pacific Coast groundfish fisheries. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.

DATES:

Effective 0001 hours (local time) October 28, 2009 through December 31, 2009. Comments on this final rule must be received no later than 5 p.m., local time on November 27, 2009.

ADDRESSES:

You may submit comments, identified by RIN 0648-AX96 by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
• Fax: [phone], Attn: Gretchen Arentzen.
• Mail: Barry Thom, Acting Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen.

Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Gretchen Arentzen (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 Website at http://www.gpoaccess.gov/​fr/​index.html. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/​.

Background

The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS. A proposed rule to implement the 2009-2010 groundfish harvest specifications and management measures published on December 31, 2008, (73 FR 80516). The final rule to implement the 2009-2010 specifications and management measures for the Pacific Coast Groundfish Fishery was published on March 6, 2009 (74 FR 9874). This final rule was subsequently amended by inseason actions on April 27, 2009 (74 FR 19011) and July 6, 2009 (74 FR 31874). These specifications and management measures are codified in the CFR (50 CFR part 660, subpart G).

Changes to current groundfish management measures implemented by this action were recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its September 12-17, 2009, meeting in Foster City, California. The Council recommended adjustments to current groundfish management measures to respond to updated fishery information and other inseason management needs. The projected impacts to three of the seven overfished species (canary and darkblotched rockfishes and Pacific ocean perch) will increase slightly with the adjustments to the cumulative limits in the limited entry non-whiting trawl fishery north of 40° 10.00' N. lat. and with the adjustments to the cumulative limits in the limited entry fixed gear and open access fisheries for deeper nearshore rockfish south of 40° 10.00' N. lat. These impacts, however, when combined with the impacts from all other fisheries, are not projected to exceed the 2009 rebuilding OYs for these species. The other adjustments to fishery management measures are not expected to result in greater impacts to overfished species than originally projected through the end of 2009. Estimated mortality of overfished and target species are the result of management measures designed to meet the Pacific Coast Groundfish FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species, while fostering the rebuilding of overfished stocks by remaining within their rebuilding OYs.

Limited Entry Non-Whiting Trawl Fishery Management Measures

The most recently available fishery information indicates that catches of sablefish and arrowtooth flounder are lower than previously projected. Sablefish and arrowtooth flounder are both healthy target species that are caught coastwide. Based on the most recent fishery information (dated August 31, 2009), catch projections through the end of 2009 indicate that, absent regulatory changes, only 3,004 mt of the 3,280 mt sablefish allocation would be harvested and less than 50 percent of the 2009 arrowtooth flounder OY of 11,267 mt would be harvested. The Council considered options for changes to management measures to allow additional access to sablefish and to reduce discarding of arrowtooth flounder in the limited entry non-whiting trawl fishery.

The Council also made a final recommendation for reducing catches of petrale sole in November and December 2009 as interim management measures, as a result of a new, more pessimistic stock assessment. See the proposed rule at 74 FR 46714 (September 11, 2009). These measures, which will reduce cumulative limits for petrale sole and expand the RCA during period 6 (November-December), will be implemented in a separate rulemaking, after consideration of public comments received on the proposed rule. Reducing catches of petrale sole in 2009 is projected to reduce impacts to co-occurring overfished species (darkblotched rockfish and Pacific Ocean perch).

Reducing fishing opportunities for petrale sole is anticipated to reduce impacts to darkblotched rockfish, an overfished species that is part of the slope rockfish complex. With the reduced catch of petrale sole and absent any other action, only 92 mt of the 1160 mt slope rockfish complex northern OY was projected to be caught through the end of the year. In order to provide some additional fishing opportunities, given the severe restrictions being implemented for petrale sole in November-December, the Council considered increasing trip limits for the slope rockfish complex. Increases to slope rockfish trip limits were not considered for the area south of 38 N. lat. because the southern trip limit is much larger and vessels have not been attaining that limit under status quo conditions.

The modest increases to slope fishing activities, including slope rockfish trip limits, and sablefish and arrowtooth flounder trip limits, result in slightly higher projected impacts to Pacific Ocean perch (approximately 0.7 mt higher) and darkblotched rockfish (approximately 1.7 mt higher) than were projected for the limited entry non-whiting trawl fishery prior to inseason action. However, even with the slight increase in impacts for these overfished species, when combined with the projected impacts from all other fisheries, none of the 2009 OYs for these rebuilding species are projected to be exceeded.

Therefore, the Council recommended and NMFS is implementing the following increases to cumulative limits on October 28, 2009 through December 31, 2009.: increase sablefish cumulative limits, caught with large and small footrope trawl gears north of 40° 10' N. lat. and with all trawl gears south of 40° 10' N. lat., to “27,000 lb (12,247 kg) per 2 months”; increase arrowtooth flounder cumulative trip limits, caught using large and small footrope gear North of 40° 10' N. lat., from “150,000 lb (6,804 kg) per 2 months” to “180,000 lb (81,647 kg) per 2 months”; increase slope rockfish cumulative limits, caught with all trawl gears north of 40° 10' N. lat., from “1,500 lb (680 kg) per 2 months” to “4,000 lb (1,814 kg) per 2 months”; and increase slope rockfish cumulative limits, caught with all trawl gears between 40° 10' N. lat. and 38 N. lat. from “10,000 lb (4,536° kg) per 2 months” to “15,000 lb (6,804 kg) per 2 months” in period 5 (September-October) and from “15,000 lb (6,804 kg) per 2 months” to “18,000 lb (8,165 kg) per 2 months” in period 6 (November-December).

Limited Entry Fixed Gear and Open Access Fishery Management Measures

Deeper Nearshore Trip Limits South of 40° 10.00' N. lat.

South of 40° 10' N. lat., the deeper nearshore trip limit is comprised of black rockfish, blue rockfish and deeper nearshore rockfish complex species. At their September meeting, the Council considered increasing the deeper nearshore trip limits to allow industry to land additional catch of these species and complexes because projected catches through the end of the year are much lower than their respective harvest guidelines (HGs). The Council considered how increases in this bi-monthly cumulative limit would affect the harvest level of the target species, as well as the potential for increased catch of co-occurring overfished species.

Black rockfish is a nearshore rockfish species that was assessed in 2007 as two separate stocks, and therefore the harvest specifications are divided at the Washington/Oregon border (46° 16.00' N. lat.). The 2009 black rockfish OY for the area south of 46° 16.00' N. lat. is 1,000 mt. The increase that the Council considered for deeper nearshore rockfish trip limits is not expected to exceed the 2009 black rockfish California harvest guideline of 420 mt.

The first blue rockfish stock assessment on the west coast was conducted in 2007 for the portion of the stock occurring in waters off California north of Pt. Conception (36° N. lat.). California manages blue rockfish as part of the minor nearshore rockfish complex, but with a species specific harvest guideline. Potential increases in blue rockfish landings as a result of increasing the deeper nearshore trip limits are not expected to exceed California's 2009 blue rockfish harvest guideline of 220 mt.

The trip limit increase that the Council considered for the deeper nearshore rockfish complex is not expected to cause the fishery to exceed the southern minor nearshore rockfish OY.

At their September meeting, the Council considered the most recent projected impacts to black rockfish, blue rockfish, and minor nearshore rockfish (both deeper and shallow nearshore) in the commercial non-trawl fisheries off the California coast through the rest of the year. The Council considered increases to the deeper nearshore rockfish trip limits south of 40° 10' N. lat. to allow additional harvest of these target stocks, and took into account the potential impacts to overfished species. The modest increases to deeper nearshore rockfish trip limits result in slightly higher projected impacts to canary rockfish than were projected for the southern non-trawl commercial fishery prior to inseason action. However, even with the slight increase in impacts for this overfished species, when combined with the projected impacts from all other fisheries, the 2009 OY for canary rockfish, a rebuilding species, is not projected to be exceeded.

Therefore, the Council recommended and NMFS is implementing trip limit changes for deeper nearshore rockfish in the limited entry fixed gear and open access fishery south of 40° 10.00' N. lat.: from either “600 lb (272 kg) per 2 months” or “700 lb (318 kg) per 2 months” to “800 lb (36°3 kg) per 2 months” beginning on October 28, 2009 through December 31, 2009..

Limited Entry Fixed Gear Sablefish Daily Trip Limit Fishery

Over the past several years, the amount of sablefish harvested in the limited entry fixed gear sablefish daily trip limit (DTL) fishery north of 36° N. lat. has been lower than their sablefish allocation. The Council recommended and NMFS implemented a precautionary adjustment that moderately raised the daily, weekly and bi-monthly trip limits for sablefish in this fishery on May 1, 2009 (74 FR 19011). At their June meeting the Council recommended and NMFS implemented a second precautionary adjustment that modestly increased the bi-monthly limit for July-October (July 6, 2009, 74 FR 31874). At their September 12-17, 2009 meeting the Council considered industry requests to further increase trip limits in this fishery. The best and most recently available fishery information indicates that, even with the May 1, 2009 and July 6, 2009 inseason adjustments, the entire sablefish allocation would not be harvested through the end of the year. To provide additional harvest opportunities for this healthy stock, the Council considered a modest increase to the weekly limit and two-month cumulative trip limit and eliminating the daily limit for sablefish in this fishery and the potential impacts on overall catch levels and overfished species. Trip limits in this fishery have been fairly stable over time; therefore some uncertainty surrounds how changes in trip limits will affect effort and landings. The Council also considered that the overall number of participants is restricted to vessels registered to a limited entry permit with the necessary gear endorsement. This increase in trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that the entire sablefish allocation is harvested. Increases in projected impacts to co-occurring target species are not anticipated to exceed OYs.

Therefore, the Council recommended and NMFS is implementing trip limit changes for the limited entry fixed gear fishery north of 36° N. lat. that increase sablefish DTL fishery limits from “500 lb (227 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 6,000 lb (2,722 kg) per 2 months” in period 5 (September-October) and from “500 lb (227 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 5,500 lb (2,495 kg) per 2 months” in period 6 (November-December) to “2,000 lb (907 kg) per week, not to exceed 7,000 lb (3,175 kg) per 2 months” beginning on October 28, 2009 through December 31, 2009.

Open Access Sablefish DTL Fishery

The most recent catch information from 2009 fisheries (August 31, 2009) indicates that catches of sablefish south of 36° N. lat. are lower than previously anticipated. Without any changes to current management measures, catches in this fishery through the end of the year are projected to be below the 2009 sablefish allocation. To provide additional harvest opportunities for this healthy stock, the Council considered increasing trip limits for sablefish in this fishery and the potential impacts on overall sablefish and overfished species catch levels. The Council considered modest increases to the weekly limit and elimination of the daily trip limit for sablefish in the limited entry fixed gear fishery south of 36° N. lat. in order to approach, but not exceed, the 2009 sablefish OY. Elimination of the daily limit south of 36° N. lat. was recommended for the same reasons as described above for the fishery north of 36° N. lat. Removal of the daily trip limit in the limited entry fishery south of 36° N. lat. is not anticipated to cause the fishery to exceed the 2009 sablefish allocation, for the area, of 351 mt. The daily limit was put in place when trip limits were the same for the limited entry fixed gear fishery and the open access fishery. The open access fishery relied on the daily limit to control effort. That same concern does not exist for a limited entry fishery. This modest increase in trip limits and removal of the daily limit is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that the entire sablefish allocation is harvested. Increases in projected impacts to co-occurring target species are not anticipated to exceed OYs.

Therefore, the Council recommended and NMFS is implementing trip limit changes for the limited entry fixed gear fishery south of 36° N. lat. that increase sablefish DTL fishery limits from “40°0 lb (181 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg)” to “3,000 lb (1,36°1 kg) per week” beginning on October 28, 2009 through December 31, 2009.

The most recent catch information from 2009 fisheries (August 31, 2009) indicates that catches of sablefish south of 36° N. lat. are lower than previously anticipated. Without any changes to current management measures, catches in this fishery through the end of the year are projected to be below the 2009 sablefish allocation. To provide additional harvest opportunities for this healthy stock, the Council considered increasing trip limits for sablefish in this fishery and the potential impacts on overall sablefish and overfished species catch levels. The Council considered increases to the weekly limit and eliminating the bi-monthly limits for sablefish in the open access fishery in order to approach, but not exceed, the 2009 sablefish OY. This increase in trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that the entire sablefish allocation is harvested.

Therefore, the Council recommended and NMFS is implementing an increase for the open access fishery trip limits south of 36° N. lat. that changes sablefish limits from “40°0 lb (181 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 8,000 lb (3,629 kg) per 2 months” to “40°0 lb (181 kg) per day, or 1 landing per week of up to 2,500 lb (1,134 kg) beginning on October 28, 2009 through December 31, 2009.

Classification

These actions are taken under the authority of 50 CFR 660.370(c) and are exempt from review under Executive Order 12866.

These inseason adjustments are taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and are in accordance with 50 CFR part 660, the regulations implementing the FMP. These actions are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see ADDRESSES) during business hours.

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, 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 may become effective quickly as possible in October.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its September 12-17, 2009, meeting in Foster City, California. The Council recommended that these changes be implemented on or as close as possible to October 15, 2009. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent the Agency from managing fisheries using the best available science to approach without exceeding the OYs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California. These adjustments to management measures must be implemented in a timely manner to allow fishermen an opportunity to harvest higher limits in 2009 for arrowtooth flounder, slope rockfish, sablefish, deeper nearshore rockfish, black rockfish, and blue rockfish in the last two fishing periods of the year (September-October and November-December).

Increases to cumulative limits for: sablefish in the limited entry trawl fishery, the limited entry fixed gear fishery, and the open access fishery; arrowtooth flounder and slope rockfish in the limited entry trawl fishery; and blue rockfish, black rockfish and deeper nearshore rockfish in the limited entry fixed gear fishery and the open access fishery allow fishermen increased opportunities to harvest available healthy stocks while staying within the OYs for these species. These changes must be implemented in a timely manner, as early as possible in October 2009, so that fishermen are allowed increased opportunities to harvest available healthy stocks at the end of the fishing year, and meet the objective of the Pacific Coast Groundfish FMP to allow fisheries to approach, but not exceed, OYs. It would be contrary to the public interest to wait to implement these changes until after public notice and comment, because making this regulatory change in October allows additional harvest in fisheries that are important to coastal communities.

Delaying these changes would keep management measures in place that are not based on the best available data, which could deny fishermen access to available harvest. Such delay would impair achievement of the Pacific Coast Groundfish FMP objective of approaching, but not exceeding, OYs.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indian Fisheries

Dated: October 22, 2009.

Emily H. Menashes,

Acting Director, Office of Sustainable Fisheries, 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 is revised to read as follows:

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

2. Tables 3 (North), 3 (South), 4 (North), 4 (South), and 5 (South) to part 660, subpart G are revised to read as follows: