E8-30575. 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) January 1, 2009. Comments on this final rule must be received no later than 5 p.m., local time on January 23, 2009.

ADDRESSES:

You may submit comments, identified by RIN 0648-AX46 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: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen.

Instructions: 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 with to remain anonymous). Attachments to electronic comments will be accepted 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 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 2007-2008 specifications and management measures for the Pacific Coast groundfish fishery and Amendment 16-4 of the FMP was published on September 29, 2006 (71 FR 57764). The final rule to implement the 2007-2008 specifications and management measures for the Pacific Coast Groundfish Fishery was published on December 29, 2006 (71 FR 78638). These specifications and management measures are codified in the CFR (50 CFR part 660, subpart G). The final rule was subsequently amended on: March 20, 2007 (71 FR 13043); April 18, 2007 (72 FR 19390); July 5, 2007 (72 FR 36617); August 3, 2007 (72 FR 43193); September 18, 2007 (72 FR 53165); October 4, 2007 (72 FR 56664); December 4, 2007 (72 FR 68097); December 18, 2007 (72 FR 71583); April 18, 2008 (73 FR 21057); May 9, 2008 (73 FR 26325); July 24, 2008 (73 FR 43139); October 7, 2008 (73 FR 58499), October 14, 2008 (73 FR 60642); and December 1, 2008 (73 FR 72740).

In June 2008, the Council recommended, and NMFS is working to implement, specifications and management measures for the 2009-2010 biennium. Given the complexity of the biennial specifications and management measures, the need for EIS-related public review periods, and competing workloads, NMFS did not have enough time to publish a proposed rule, receive public comments, and implement a final rule by January 1, 2009. The Groundfish specifications and management measures are in effect until they are replaced; they do not expire on their own. Therefore, the current ABCs and OYs are in effect. Unless new management measures are in place by January 1, 2009, management measures that were in place for January February 2008 would remain in effect for January and February 2009. NMFS and the Council, therefore, developed management measures, to be implemented through a routine inseason adjustment, based on the most recent fishery information, to manage within the current OYs. All of the fishery mortality during January and February will be taken into account during the rest of the year, and will count toward the ABCs and OYs ultimately adopted for 2009.

The Council considered the most recent 2008 fishery information, relative to 2008 specifications, and recommended inseason modifications appropriate for January-February 2009 to start 2009 fisheries in a manner that would keep catches below 2008 OYs, but would allow additional harvest opportunities for species with catches tracking below projections during the 2008 fishery. The Council also considered that under both the current yelloweye rockfish rebuilding plan and the proposed 2009-2010 specifications the yelloweye rockfish OY in 2009 would be lower than in 2008. Therefore the Council recommended inseason adjustments to fishery management measures that would prevent mortality in January and February that could risk exceeding the lower 2009 yelloweye rockfish OY.

No changes to fishery specifications, including acceptable biological catches (ABCs), optimum yields (OYs), and harvest guidelines (HGs) are made by inseason action, therefore the 2009 fishing year will begin with the same specifications that were in effect at the start of the 2008 fishing year. No changes to management measures are being made for fisheries that are closed or have extremely small amounts of fishing effort during the months of January and February, particularly recreational fisheries off Washington, Oregon and California; however, the titles for trip limit tables that are not being revised by this inseason action are re-titled to reflect their ongoing effectiveness.

Thus, 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 November 2-7, 2008, meeting in San Diego, California. The Council recommended adjustments to January and February 2009 groundfish management measures to respond to updated fishery information. Management measures are 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

At their November 2-7, 2008, meeting, the Council received new data and analyses on the catch of groundfish in the limited entry trawl fishery. The Council's recommendations for revising January-February 2009 non-whiting trawl fishery management measures provide additional harvest opportunities in some areas for target species with 2008 catches tracking behind projections, and reduce harvest opportunities for petrale sole as a precautionary measure to prevent the higher than expected catches of petrale sole that occurred in period 1 of 2008.

The Council considered increases to trip limits for sablefish, shortspine thornyheads, and Dover sole, and the potential impacts on overall catch levels and overfished species. The most recently available information as of October 31, 2008, indicates that: 84 percent (2,356 mt out of the 2,810 mt OY) of the sablefish OY; 70 percent (1,148 mt out of the 1,634 mt OY) of the shortspine thornyhead OY north of 34°27.00 N. lat.; and 65 percent (10,708 mt out of the 16,500 mt OY) of the coastwide Dover sole OY, have been taken through November 4, 2008. These projections are below the anticipated catch projections through October, and starting the 2009 trawl fishery under 2008 cumulative limits is projected to prevent the fishery from attaining the OYs for these species, as the most recently available information indicates was likely in 2008.

Increases in cumulative limits in the limited entry trawl fishery were considered coastwide for all trawl gear types, except the selective flatfish trawl fishery north of 40 10.00' N. lat. Increases in selective flatfish trawl cumulative limits were not considered due to the associated projected increase in impacts to canary rockfish, which must be managed to the 2008 harvest specifications, and a canary rockfish OY of 44 mt. Canary rockfish are primarily encountered in the nearshore area, and selective flatfish trawl gear is required to prosecute the groundfish fishery in that shoreward area of the trawl RCA north of 40° 10.00' N. lat.

Increases in cumulative limits in the limited entry trawl fishery were considered coastwide for all target species with 2008 catches tracking below their respective 2008 OYs. However, providing additional fishing opportunities for some of these species was not possible, due to the associated increase in impacts to canary rockfish, and the need to manage the fishery within the 2008 harvest specifications for canary rockfish.

Increases to sablefish, shortspine thornyhead, and Dover sole cumulative limits are expected to increase overall catch levels compared to the 2008 season, but those increases are predicted to be within the continuing 2008 OYs for these species in the 2009 fishery, and are not expected to result in greater than projected overfished species impacts in the 2009 fishery.

Therefore, the Council recommended and NMFS is implementing the following trip limit changes for the limited entry trawl fishery: (1) North of 40° 10.00' N. lat., increase sablefish limits using large and small footrope gear from 14,000 lb (6,350 kg) per 2 months to 18,000 lb (8,165 kg) per 2 months during period 1 (January-February); (2) between 40° 10.00' N. lat. and 38° N. lat., increase sablefish limits from 14,000 lb (6,350 kg) per two months to 20,000 lb (9,072 kg) per two months during period 1 (January-February); (3) increase shortspine thornyhead limits for all gear types, except for selective flatfish trawl gear north of 40° 10.00' N. lat., from 12,000 lb (5,443 kg) per two months to 17,000 lb (7,711 kg) per two months during period 1 (January-February); and (4) increase Dover sole limits for all gear types, except for selective flatfish trawl gear north of 40° 10.00' N. lat., from 80,000 lb (36,287 kg) per two months to 110,000 lb (49,895 kg) per two months during period 1 (January-February).

During the months of January and February 2008, catches of petrale sole in the limited entry trawl fishery were higher than expected, and approximately 40 percent of the 2008 petrale sole OY was taken during those two months, primarily north of 40° 10.00' N. lat. In response to projections that the 2008 petrale sole OY could be exceeded if the higher than projected catches continued throughout 2008, the Council recommended, and NMFS implemented, precautionary reductions in petrale sole cumulative limits in August 2008 (73 FR 43139, July 24, 2008). The higher than projected catches did not continue, so cumulative limits for petrale sole were raised incrementally toward the end of the year to allow catches to approach but not exceed the 2008 petrale sole OY (73 FR 60642, October 14, 2008; 73 FR 72740, December 1, 2008). In considering inseason adjustments for the beginning of the 2009 fishery, the Council took into account the high petrale catches observed in period 1 of 2008, and recommended decreasing petrale sole cumulative limits in period 1 2009 for some gear types, as a precautionary measure. Decreases in petrale sole cumulative trip limits were analyzed for vessels using large and small footrope trawl gear north of 40° 10.00' N. lat. Changes in cumulative limits for vessels using selective flatfish trawl gear north of 40° 10.00' N. lat. and all trawl gears South of 40° 10.00' N. lat. were considered, but not recommended by the Council due to the need to keep canary rockfish impacts within the 2008 canary rockfish OY.

Based on these analyses above, the Council recommended and NMFS is implementing a decrease in the limited entry trawl fishery cumulative limits, during Period 1, effective January 1: for petrale sole taken with large and small footrope gears north of 40° 10.00' N. lat. from 40,000 lb (8,144 kg) per two months to 25,000 lb (11,340 kg) per two months.

Limited Entry Fixed Gear and Open Access Fishery Management Measures

The 2008 yelloweye rockfish OY is 20 mt. This inseason action only modifies management measures for the beginning of 2009, and does not propose to change specifications. However, the status quo rebuilding plan adopted in the Pacific Coast Groundfish Fishery Management Plan (FMP) Amendment 16-4 (70 FR 78638, December 29, 2006) specifies a harvest rate ramp-down strategy that would decrease the yelloweye rockfish OY to 17 mt in 2009. Therefore, this inseason action modifies management measures for fisheries that will have impacts on yelloweye rockfish in January-February 2009. Limited entry and open access fixed gear fisheries have the highest commercial yelloweye rockfish impacts, and operate early in the calendar year, unlike recreational fisheries, which occur later. Leaving the same management measures in place from January-February 2009 that were in effect during that time period in 2008 would risk higher yelloweye rockfish impacts than could be accommodated under the lower 2009 yelloweye rockfish OY.

The Council considered the most recently available analysis of observer data from the West Coast Groundfish Observer Program, which indicates higher bycatch rates of yelloweye rockfish in limited entry and open access fixed gear fisheries in some areas seaward and shoreward of the non-trawl RCA north of 40° 10.00' N. lat. To reduce early 2009 fishery impacts on yelloweye rockfish, the Council considered expanding the non-trawl RCA to encompass these areas of higher yelloweye rockfish bycatch, to minimize the risk of more severe restrictions later in 2009 to keep total mortality of yelloweye rockfish below the 2009 yelloweye rockfish OY of 17 mt.

Based on the analysis described above, the Council recommended and NMFS is implementing an expansion of the non-trawl RCA as follows: (1) a shift in the seaward boundary of the non-trawl RCA from the boundary line approximating the 100-fm (183-m) depth contour to the boundary line approximating the 125-fm (229-m) depth contour between Cascade Head (45° 03.83' N. lat.) and Cape Blanco (42° 50.00' N. lat.); and (2) a shift in the shoreward boundary of the non-trawl RCA from the boundary line approximating the 30-fm (55-m) depth contour to the boundary line approximating the 20-fm (37-m) depth contour between Cape Blanco (42° 50.00' N. lat.) and 40° 10.00' N. lat.

Classification

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

These actions 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 part of the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective January 1, 2009.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its November 2-7, 2008, meeting in San Diego, California. The Council recommended that these changes be implemented on or as close as possible to January 1, 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 and to rebuild overfished stocks in accordance with the FMP rebuilding plans 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, by January 1, 2008, to: allow fishermen an opportunity to harvest higher cumulative limits in the beginning of 2009 for stocks that had lower than expected catches in the 2008 fishery, relative to 2008 harvest specifications; reduce catches of petrale sole as a precautionary measure early in the 2009 fishery, based on fishery information indicating that catches early in the 2008 fishery were higher than expected; and to reduce impacts on yelloweye rockfish in early 2009 so that additional restrictions on fisheries that encounter yelloweye rockfish will not have to be made later in the year.

Increases to the sablefish, shortspine thornyhead, and Dover sole cumulative limits in the limited entry trawl fishery relieve a restriction by allowing 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 by January 1, 2009, so that fishermen are allowed increased opportunities to harvest available healthy stocks 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 by January 1 allows additional harvest in fisheries that are important to coastal communities.

Reductions to petrale sole cumulative limits in the limited entry trawl fishery are needed to prevent higher than expected catches in January-February 2009, and to allow for fishing opportunities for healthy target species to be extended as long as practicable through the fishing year. These changes must be implemented in a timely manner by January 1, 2009, to 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 by January 1 will minimize the risk of more severe fishery restrictions later in 2009.

Changes to the non-trawl RCA boundaries are needed to reduce fishery impacts on yelloweye rockfish, a bycatch species primarily encountered in non-trawl fisheries, and to keep 2009 total mortality of yelloweye rockfish within the rebuilding targets for yelloweye rockfish. Failing to make these changes in a timely manner by January 1, 2009, would risk exceeding the 2009 yelloweye rockfish rebuilding plan OY of 17 mt.

Allowing the January February 2008 management measures to be in place during January February 2009 could jeopardize managers' ability: to keep 2009 landings within proposed rebuilding targets for some overfished species; and to provide for year-round harvest opportunities for healthy stocks. 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 objectives of providing for year-round harvest opportunities, extending fishing opportunities as long as practicable during the fishing year, or staying within OYs.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indian Fisheries

Dated: December 17, 2008.

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 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

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