E9-29479. Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 2010 Harvest Specifications and 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 2010 Optimum Yield and the January-December 2010 management measures for petrale sole taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California.

DATES:

Effective January 1, 2010.

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 or PFMC) website at http://www.pcouncil.org/​. An Environmental Assessment (EA) was prepared for the proposals to revise 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), Optimum 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 of groundfish petrale sole and canary rockfish - during 2009 and 2010 (74 FR 46714). Those changes were proposed because the PFMC received new stock assessments of those species in June 2009 that indicated the stocks are in worse shape than had been thought at the beginning of 2009. On November 4, 2009, NMFS published the first of two final rules to implement a portion of the action described in the proposed rule; specifically, more restrictive management measures to reduce petrale sole catches in 2009 (74 FR 57117). This final rule implements another portion of the September 2009 proposed action for the year 2010 regarding petrale sole. These changes were considered and recommended by the Council at its November 2009 meeting in Costa Mesa, California. This final rule does not implement any changes to 2010 harvest specifications or management measures for canary rockfish (see Changes From the Proposed Rule).

This final action is taken to respond to the most recently available stock status information regarding petrale sole. The interim measures being implemented in this rule, in combination with the existing regulations, are designed to speed the rebuilding of petrale sole while NMFS and the Council 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 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. The routine management measures, as described in the 2009-2010 proposed rule, will continue to be adjusted as necessary 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 2010 harvest specifications and management measures for petrale sole can be found in the preamble to the September 2009 proposed rule (74 FR 46714).

Comments and Responses

NMFS received two letters of comment during the comment period for the proposed rule. 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 biological reference points, and supporting interim measures to reduce petrale sole catch. Specifically, Oceana recommended greatly reducing trip limits for Periods 5 and 6, closing the petrale sole cutouts (areas that are left open to fishing for petrale sole under the “no action” alternative) in the Rockfish Conservation Area (RCA), and reducing coastwide petrale sole catch levels for 2009 and 2010. This rulemaking only addresses the interim changes to petrale sole management in 2010 (a prior rule addressed the changes for 2009). Consistent with Oceana's recommendation, NOAA is reducing trip limits for the entire year and reducing coastwide petrale sole catch levels for 2010. NOAA is not closing the petrale sole cutouts in the RCA, because as explained below, the year-round reduction in trip limits keeps the fishery under the 2010 OY without the need for the closure of these petrale sole fishing areas. Oceana's comments primarily focused on biological reference points for petrale sole that the Council considered at its November 2009 meeting. NMFS forwarded Oceana's letter of comment to the Council, and those comments were considered prior to the Council's November 2009 recommendation. The Council made recommendations on the biological reference points for petrale sole and the petrale sole rebuilding analysis for the 2011-2012 specifications and management measures. The measures and the rebuilding plan will be developed, reviewed and implemented through the 2011-1012 implementation process as described above. Final action is not being taken on those measures in this rule, and Oceana's comments will be considered during the relevant rulemaking.

Changes from the Proposed Rule

The proposed rule included changes to management measures that would reduce the catch of petrale sole in November-December 2009. That portion of the proposed action was implemented in a separate final rule that became effective on November 1, 2009, and which was published in the Federal Register on November 4, 2009 (74 FR 57117). The proposed rule included reductions to 2010 OYs for canary rockfish and petrale sole. It also included a description of management measures for canary rockfish and petrale sole that could be implemented to allow the fisheries to approach, but not exceed, 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 in order to allow the new rebuilding analyses to be completed and considered prior to making its final recommendation. At its November meeting, the Council considered the rebuilding analyses and public comments prior to making its final recommendations. Therefore, this final rule addresses only the 2010 portion of the changes that were included in the proposed rule.

At its November 2009 meeting, the Council adopted the rebuilding analyses for petrale sole and canary rockfish for use in developing the 2011-2012 harvest specifications. These analyses were also considered in developing the interim specifications.

This final rule implements measures in 2010 to reduce catches of petrale sole that are very similar to the actions contained in the proposed rule. The petrale sole rebuilding analysis indicated a faster time to rebuild the stock with a 1,200 mt alternative OY, compared with the status quo (or “no action”) alternative of a 2,393 mt 2010 OY. The proposed rule would set a 2010 petrale sole OY of 1,193 mt, which was calculated based on the Council request to reduce the 2010 OY by 1,200 mt. The rebuilding analysis the Council received in November analyzed five alternative OYs for 2010: the status quo of 2,393 mt; an OY of 1,800 mt; an OY of 1,200 mt (7 mt higher than the proposed 2010 OY); and two lower OYs of 900 and 300 mt, respectively. Therefore, the rebuilding analyses that the Council considered prior to making its final recommendation included a petrale sole OY alternative for 2010 of 1,200 mt, rather than 1,193 mt. After considering this analysis, the Council recommended a 2010 petrale sole OY of 1,200 mt, which is only slightly higher than the proposed OY. The rebuilding analysis the Council considered in the November 2009 meeting showed that this OY level in 2010 would rebuild the petrale sole stock approximately one year faster than the status quo alternative, and that it could allow less drastic OY reductions during the rebuilding period. Accordingly, this rule implements a reduced petrale OY for 2010 of 1,200 mt.

The final rule will also implement management measures for 2010 to limit the petrale sole harvest to the new petrale sole OY. The management measures implemented in this final rule were developed jointly with fishery managers and trawl industry representatives at the Council's November 2009 meeting. These final management measures are somewhat different from those in the proposed rule. The proposed rule contained severely reduced trip limits in January-February (Period 1) and November-December (Period 6), as well as additional area closures during those times. These measures were proposed to restrict the winter petrale sole effort by eliminating directed harvest of petrale during these periods, when fewer vessels are participating, and to maintain summer fishing opportunity, when the price per pound is higher and when more vessels are targeting petrale sole. At the November 2009 Council meeting, however, the Groundfish Management Team (GMT) considered other measures for keeping the harvest within the new OY. Based on a request from industry, the GMT developed an alternative that would keep the trip limit for petrale sole at 9,500 lbs per two-month period all year. Because this approach would allow a small target fishery all year, it would not include the changes to the closed areas that were in the proposed rule. Trawl industry representatives advised the GMT and the Council that the severe restriction of winter petrale opportunities, as proposed, could place communities at risk of losing vital fishing infrastructure during that time of year, and could place industry at risk of losing market share for petrale sole, thus reducing the market availability for the rest of the year. Therefore, the Council recommended a trip limit configuration that would restrict trip limits all year, holding the cumulative limit constant at 9,500 lb per two month period from January-December, and maintaining the RCA with the petrale cutouts (or fishing areas) in Periods 1 and 6. These management measures are anticipated to limit the 2010 petrale sole harvest to the 1,200 OY level. These measures, in combination with the existing regulations, are designed to speed the rebuilding of the petrale sole stock.

This final rule will not implement 2010 changes for canary rockfish as outlined in the proposed rule. In November, the Council considered interim changes for 2010 after consideration of the new rebuilding analysis. For canary rockfish, the rebuilding analysis compared 15 rebuilding alternatives in considering revisions to the canary rockfish rebuilding plan and developing the 2011-2012 harvest specifications. Only one of the rebuilding alternatives indicated a one-year difference in the time to rebuild canary rockfish stocks between the low 2010 OY alternatives (44 mt) and the status quo (no action) alternative (105 mt). For all of the other 14 rebuilding alternatives, there was no change in time to rebuild between either of the low 2010 OY alternatives (44 and 85 mt) and the status quo alternative. None of the proposed canary rockfish catch reductions made an appreciable difference in canary rockfish rebuilding parameters, including time to rebuild, nor did it make an appreciable difference in 2011 and 2012 rebuilding OYs. Therefore, the proposed action did not meet the purpose and need that was described in the preamble of the proposed rule and in the Environmental Assessment. In addition, canary rockfish is a very important incidentally caught species that is widely encountered in both commercial and recreational fisheries, so that immediate reductions would have a far reaching effect. Accordingly, the Council did not recommend any changes to the 2010 canary rockfish OY of 105 mt or management measures to achieve a lower OY.

Classification

The Administrator, Northwest Region, NMFS, has determined that the revisions to 2010 harvest specifications and management measures for petrale sole, which this final rule implements, are consistent with the Magnuson-Stevens Act, 16 U.S.C. §§ 1801 et seq., 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 of drafting, 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 of the stock. The Council recommended, and NMFS published, a proposed rule on September 11, 2009, to, among other things, reduce harvest of petrale sole in 2010. The comment period for this proposed rule closed on October 13, 2009. At its October 31 through November 5 meeting, the Council made its final recommendations for changes to 2010 harvest specifications and management measures for petrale sole.

In order that this final rule reducing the 2010 petrale sole OY and adjusting management measures may become effective January 1, 2010, and thus protect the petrale sole in 2010, NMFS finds good cause to waive a portion of the 30 day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3). Leaving the unrevised 2010 OY and 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 1 (January-February) 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 in the midst of the two-month January-February cumulative trip limit period. Finally, delaying the effectiveness of these measures could require more drastic action in 2010 and beyond to reduce petrale sole catch, including possible fishery closures, to make up for harvest that would be allowed under the current 2010 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.

Pursuant to the procedures established to implement section 6 of Executive Order 12866, the Office of Management and Budget has determined that this final rule is not significant.

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 (fewer than 30) that are affiliated with larger processing companies or large international seafood companies. Under the status quo (no action) petrale sole alternative (P1), groundfish revenues in 2010 by the non-whiting trawl fleet (139 vessels) would be about $28 million. Under the interim measures in this final rule, the vessels in this fishery would collectively earn about $26 million in 2010. Between 30 and 35 of these vessels would see their revenues fall by more than 5 percent (see Tables 4-1 and 4-2 of the EA).

Although this final rule will reduce the overall take and per vessel take of petrale sole, the total reduction in the catch levels for all Pacific coast groundfish species for 2010 is relatively low. The measures being implemented in this rule, in combination with the existing regulations, are designed to speed the rebuilding of petrale sole and moderate the severity of future reductions in the petrale sole OY under a rebuilding plan. In order to mitigate the adverse effect of lower petrale sole catches in 2010, the Council recommended additional opportunities for trawlers to harvest Dover sole, chilipepper rockfish, shortspine and longspine thornyheads, slope rockfish, and sablefish in 2010, and these recommendations are under consideration by NOAA for implementation in 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.

On March 11, 2006, using this data, NMFS issued a Supplemental Biological Opinion that addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries, including the effects of these fisheries on Lower Columbia River coho, which were listed in 2005 (70 FR 37160, June 28, 2005). 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.

Oregon Coastal coho were recently re-listed as threatened under the ESA (73 FR 7816, February 11, 2008). The 1999 Biological Opinion and 2006 Supplemental Biological Opinion both concluded that the bycatch of salmonids in the Pacific coast groundfish bottom trawl 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 regard 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, the interim changes to the 2010 petrale sole OY and the groundfish management measures for petrale sole were 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: December 7, 2009.

John Oliver,

Deputy Assistant Administrator For Operations, 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.

2. Table 2a, and footnote “/k” following Tables 2a through 2c, are revised to read as follows:

/k A petrale sole stock assessment was prepared for 2005. In 2005 the petrale sole stock was estimated to be at 32 percent of its unfished biomass coastwide (34 percent in the northern assessment area and 29 percent in the southern assessment area). The 2010 ABC of 2,751 mt is based on the 2005 assessment with a F40% FMSY proxy. To derive the 2010 OY, the 40 10 harvest policy was applied to the ABC for both the northern and southern assessment areas. As a precautionary measure, an additional 25 percent reduction was made in the OY contribution for the southern area due to assessment uncertainty. As another precautionary measure, an additional 1,193 mt reduction was made in the coastwide OY due to preliminary results of the more pessimistic 2009 stock assessment. The coastwide OY is 1,200 mt in 2010.

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