E9-26543. Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 2009 Management Measures for Petrale Sole

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule revises the November-December 2009 management measures for petrale sole taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California.

DATES:

Effective November 1, 2009.

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 (the Council) website at http://www.pcouncil.org/​. An Environmental Assessment (EA) was prepared for the revisions to the 2009-2010 harvest specifications and management measures for petrale sole and canary rockfish. A copy of the EA is available online at http://www.nwr.noaa.gov/​.

Background

The 2009 and 2010 Acceptable Biological Catches (ABCs), Optimal Yields (OYs) and Harvest Guidelines (HGs) for Pacific coast groundfish species were established in the final rule for the 2009-2010 groundfish harvest specifications and management measures (74 FR 9874, March 6, 2009). On September 11, 2009, NMFS proposed taking interim measures for two species during 2009 and 2010 (74 FR 46714). Those changes were proposed because the PFMC received new stock assessments in June 2009 that indicated the stocks are in worse shape than we had thought at the beginning of 2009. This final rule implements only a portion of the action described in the proposed rule; specifically, interim measures for petrale sole to reduce catches in 2009 by implementing more restrictive management measures. The proposed rule for this action included other interim changes for petrale sole and canary rockfish in 2010. Those changes will be considered by the Council at its November 2009 meeting in Costa Mesa, California, and if action is recommended by the Council and approved by NMFS it will be implemented in a separate final rule, likely issued in December 2009, pending a final recommendation by the Council.

This final action is taken to respond to the most recently available stock status information during the remainder of 2009, while NMFS and the Council consider the results of new rebuilding analyses for potential additional action for 2010, and they complete the stock assessments, revised rebuilding plans, Environmental Impact Statement (EIS), and full rulemaking for the 2011 and 2012 specifications and management measures for the entire groundfish fishery.

The interim measures being implemented in this rule, in combination with the existing regulations, are designed to prevent the stock status of petrale sole from falling below the overfished threshold at the beginning of 2011, or to speed the rebuilding of petrale sole if it is found in near-future evaluations to be overfished.

The Council's policies on setting ABCs, OYs, other harvest specifications, and management measures are discussed in the preamble to the December 31, 2008, proposed rule (73 FR 80516) for 2009-2010 harvest specifications and management measures.

Routine management measures, as described in the preamble to the 2009-2010 harvest specifications and management measure proposed rule (73 FR 80516, December 31, 2008), will continue to be adjusted to modify fishing behavior during the fishing year to allow a harvest specification to be achieved, or to prevent a harvest specification from being exceeded.

Additional information regarding considerations for interim changes to 2009 management measures for petrale sole can be found in the preamble to the proposed rule (74 FR 46714, September 11, 2009).

Comments and Responses

During the comment period for the proposed rule, NMFS received two letters of comment. The first was from the Department of the Interior, stating that it had no comment. The second was from Oceana, an environmental advocacy group, concerning the most recent petrale sole stock assessment and supporting interim measures to reduce petrale sole catch. Oceana's comments primarily focused on biological reference points for petrale sole that the Council will be considering at its November 2009 meeting. NMFS forwarded Oceana's letter of comment to the Council so that it may consider these comments prior to its November 2009 decision. Oceana also expressed its support for reducing trip limits and implementing area closures to reduce coastwide petrale sole catch levels for the remainder of 2009.

Changes from the Proposed Rule

The proposed rule included reductions to 2010 harvest specifications, specifically OYs, for canary rockfish and petrale sole. The proposed rule also included a description of management measures that would be implemented to approach, but not exceed, those new, lower, 2010 OYs. At its September meeting, the Council chose to postpone its final decisions for interim 2010 harvest specifications and management measures for petrale sole and canary rockfish, so that the new rebuilding analyses could be completed and considered prior to making its final recommendation. The Council will consider the rebuilding analyses and public comments when making its final recommendation on the proposed interim 2010 harvest specifications and management measures at its November meeting. Therefore, this final rule implements only the 2009 portion of the petrale sole interim measures that were included in the proposed rule.

At its September 2009 meeting, the Council recommended routine adjustments to fishery management measures for arrowtooth flounder, slope rockfish and sablefish in the limited entry bottom trawl fishery. Those measures were implemented in an October 28, 2009 final rule (74 FR 55468), and are reflected in the attached trip limit tables 3 (North) and 3 (South).

Classification

The Administrator, Northwest Region, NMFS, has determined that the revisions to 2009 management measures for petrale sole, which this final rule implements, are consistent with the national standards of the Magnuson-Stevens Act, 16 U.S.C. §§ 1361-1423h, and other applicable laws.

An EA was prepared for the revisions to the 2009-2010 harvest specifications and management measures for petrale sole and canary rockfish. A copy of the EA is available online at http://www.nwr.noaa.gov/​. NMFS issued a Finding of No Significant Impact (FONSI) for this action. A copy of the FONSI is available from NMFS (see ADDRESSES).

NMFS utilizes the most recently available fishery information, scientific information, and stock assessments, to implement specifications and management measures biennially. Generally these management measures are implemented on January 1 of odd numbered years. The 2009-2010 biennial specifications and management measures were developed using the most recently available scientific information, stock assessments, and fishery information available at the time, and were implemented on March 1, 2009. A new, more pessimistic, stock assessment for petrale sole became available to the Council in June 2009. In response to this assessment, the Council and NMFS took immediate action to reduce catches of petrale sole in order to facilitate rebuilding if the stock is declared overfished. The Council recommended, and NMFS published, a proposed rule on September 11, 2009, to, among other things, reduce harvest of petrale sole in November and December 2009. The comment period closed on October 13, 2009. In order that this final rule adjusting management measures for petrale sole in 2009 may become effective November 1, 2009, and thus protect the petrale sole in 2009, NMFS finds good cause to waive the 30 day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3). Leaving the 2009 management measures that directly affect catch of petrale sole in place could cause harm to petrale sole, because those management measures are not based on the most current scientific information. The commercial fishery is managed with two-month cumulative limits, so even a short delay in effectiveness could allow the fleets to harvest the entire period six (6) (November-December) two-month limit before the new, more restrictive, measures are effective. Delaying the effectiveness of this rule would also be confusing to the public, because with delayed effectiveness this rule would change trip limits and closed areas in the midst of the two-month November-December cumulative trip limit period. Finally, delaying the effectiveness of these measures could require emergency action in 2010 to reduce petrale sole catch, including possible fishery closures, to make up for harvest that would be allowed under the current 2009 management measures. Thus, a delay in effectiveness could ultimately cause economic harm to the fishing industry and associated fishing communities. These reasons constitute good cause under authority contained in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days after date of publication.

The Council considered alternatives for revising the 2009-2010 harvest specifications and management measures for petrale sole. The range of alternatives considered included more restrictive management measures to reduce catch of petrale sole in 2009, new harvest specifications for petrale sole in 2010 and management measures necessary to keep projected impacts to petrale sole below the new 2010 OY. As described above in Changes from the Proposed Rule, only the interim changes to management measures during the end of 2009 are implemented in this final rule, due to the Council's decision to postpone a final recommendation for 2010 until the rebuilding analysis for petrale sole was available.

NMFS has determined that this rule is not significant for purposes of Executive Order 12866.

NMFS prepared a final Regulatory Flexibility Analysis (FRFA) as part of the regulatory impact review. Among other things, the FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) and a summary of the analyses completed to support the action. A copy of the FRFA is available from NMFS (see ADDRESSES). To summarize the FRFA, per the requirements of 5 U.S.C. § 604(a), most of the estimated 2,600 entities that harvest groundfish are considered small businesses under the RFA. Entities involved in the fishery that are not small businesses include the catcher vessels that also fish off Alaska, some shoreside processors, and all catcher-processors and motherships (less than 30) that are affiliated with larger processing companies or large international seafood companies. Although this rule will reduce the overall take and per vessel take of petrale sole, the total reduction in the catch level of petrale sole for the remainder of 2009 is relatively low, such that there are no significant economic impacts on small entities as the result of this rule. However, in order to mitigate against the effect of lower petrale sole catches this year, additional opportunities for trawlers to harvest arrowtooth flounder, slope rockfish, and sablefish are being provided under a separate rulemaking. These are species where additional harvest amounts can be accommodated without exceeding an OY.

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

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

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

NMFS 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. 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 incidental take of salmon 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 Groundfish FMP is not likely to jeopardize the continued existence of any of the affected ESUs.

Lower Columbia River coho were recently listed (70 FR 37160, June 28, 2005) and Oregon Coastal coho were recently relisted (73 FR 7816, February 11, 2008) 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 were also recently listed as threatened under the ESA (71 FR 17757, April 7, 2006). As a consequence, NMFS has reinitiated its Section 7 consultation on the PFMC's Groundfish FMP.

After reviewing the available information, NMFS concluded that, in keeping with sections 7(a)(2) and 7(d) of the ESA, the proposed action would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

With regards to marine mammals, sea turtles, and seabirds, NMFS is reviewing the available data on fishery interactions. In addition, NMFS has begun discussions with Council staff on the process to address the concerns, if any, that arise from our review of the data.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indian fisheries

Dated: October 30, 2009.

James W. Balsiger,

Acting Assistant Administrator for 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 continues to read as follows:

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

2. Table 3 (North) to Part 660, Subpart G and Table 3 (South) to Part 660, Subpart G are revised to read as follows: