06-4738. Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Correction

AGENCY:

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

ACTION:

Final rule; request for comments; correction.

SUMMARY:

This final rule establishes the 2006 fishery specifications for Pacific whiting (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). It also adjusts the bycatch limits in the whiting fishery. This Federal Register document also corrects the final rule implementing the specifications and management measures, which was published December 23, 2004. These specifications include the level of the acceptable biological catch (ABC), optimum yield (OY), tribal allocation, and allocations for the non-tribal commercial sectors. The intended effect of this action is to establish allowable harvest levels of whiting based on the best available scientific information.

DATES:

Effective May 19, 2006. Comments on the revisions to bycatch limits must be received no later than 5 p.m., local time on June 6, 2006.

ADDRESSES:

You may submit comments, identified by I.D. 081304C by any of the following methods:

• E-mail: [e-mail]: Include I.D. 081304C in the subject line of the message.
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone], Attn: Becky Renko
• Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky Renko.

Copies of the final environmental impact statement (FEIS) for this action 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 D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT:

Becky Renko (Northwest Region, NMFS) 206-526-6110.

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 NMFS Northwest Region Web site at http://www.nwr.noaa.gov/​1sustfsh/​gdfsh01.htm.

Background

A proposed rulemaking to implement the 2005-2006 specifications and management measures for the Pacific Coast groundfish fishery was published on September 21, 2004 (69 FR 56550). The final rule to implement the 2005-2006 specifications and management measures for the Pacific Coast Groundfish Fishery was published on December 23, 2004 (69 FR 77012). Comments regarding bycatch of overfished species, including bycatch of overfished species in the whiting fishery were responded to in the final rule.

In November 2003, the U.S. and Canada signed an agreement regarding the conservation, research, and catch sharing of whiting. The whiting catch sharing arrangement that was agreed upon provides 73.88 percent of the total catch OY to the U.S. fisheries and 26.12 percent to the Canadian fisheries. At this time, both countries are taking steps to bring this agreement into force. Until the agreement is ratified and implementing legislation becomes effective, the negotiators recommended that each country apply the agreed upon provisions to their respective fisheries.

In anticipation of the ratification of the U.S.-Canada agreement and a new stock assessment, and given the small amount of whiting that is typically landed under trip limits prior to the April 1 start of the primary season, the Council adopted a range for OY and ABC in the 2005-2006 specifications, and delayed adoption of final 2005 and 2006 ABC and OY until its March 2005 and 2006 meetings, respectively. To date, the international agreement has not yet been ratified and implementing legislation has not yet been made effective. A final rule to implement the 2005 harvest specifications and management measures for the whiting fishery was published on May 3, 2005 (70 FR 22808). NMFS received no comments on the 2005 harvest specifications and management measures for the whiting fishery. The ABC and OY values recommended by the Council as final ABC and OY values for 2006 are based on a stock assessment update, and their impacts are consistent with the scope of impacts considered in the EIS for the 2005 and 2006 management measures. The OY being implemented in this rule, and the resulting allocations among the sectors and the bycatch limit for canary rockfish are the same as those in effect in 2005. The bycatch limit for widow rockfish is slightly lower than the limit in 2005.

Stock Status

In general, whiting is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span when compared to other overfished groundfish species. In 1987, the whiting biomass was at a historically high level due to an exceptionally large number of fish that spawned in 1980 and 1984 (fished spawned during a particular year are referred to as year classes). As these large year classes of fish passed through the population and were replaced by moderate sized year classes, the stock declined. The whiting stock stabilized between 1995 and 1997, but then declined to its lowest level in 2001. After 2001, the whiting biomass increased substantially as a strong 1999 year class matured and entered the spawning population. The 1999 year class is now rapidly moving through the population.

The joint US-Canada Stock Assessment Review (STAR) panel met February 6-9, 2006, to review an updated whiting stock assessment prepared by the Northwest Fisheries Science Center. The STAR panel accepted two equally plausible assessment models that consider uncertainty in the relative depletion level and stock productivity.

As in 2005, the amount of whiting that the hydroacoustic survey was able to measure relative to the total amount of whiting in the surveyed area (survey catchability coefficient or q) was identified as a major source of uncertainty in the new stock assessment. Model-1 has a fixed value of q=1, while Model-2 estimates q in the model (using an informative prior) to arrive at q = 0.69, which results in an upward scaling of both biomass and ABC/OY estimates. Uncertainty regarding the true value of q has been a major issue with whiting stock assessments in recent years, and the Council has based whiting ABC and OYs from the last several assessments on models where q was set equal to 1.

With Model-1, q=1, the whiting stock biomass was estimated to be at 31 percent of its unfished biomass at the end of 2005 and at 38 percent of its unfished biomass with Model-2, q=0.69. Because only moderately sized year classes have been observed since 1999, the whiting biomass is projected to decline in the near future. However, data from the 2005 hydroacoustic survey suggest a moderately strong 2003 year class, and that a moderate to strong 2004 year class may mature and enter the fishery in the next few years. If these year classes are stronger than currently projected, the whiting biomass could stabilize or even increase in biomass.

The steepness of the stock-recruitment relationship (the proportion of young fish entering the population in relation to the number of adult fish) was redefined in the 2006 assessment. A steepness value of 0.75 was used in 2006, whereas a value of 1 was used in 2005. Assuming a steepness of 1 implies that the recruitment is the same when the biomass is high and when the biomass is lower, which may result in overly optimistic projections. The Council's Scientific and Statistical Committee (SSC)recommended that the steepness of the stock-recruitment relationship be explored further with the next assessment.

The U.S. Canada Treaty provisions include the use of a default harvest rate of F40%. A rate of F40% can be explained as that which reduces spawning potential per female to 40 percent of what it would have been under natural conditions (if there were no mortality due to fishing). The selection of the F40% value was based on an analysis of stock and recruitment data for other whiting (hake) species. However, because the whiting stock is projected to fall below the overfished threshold if managed with a harvest rate of F40%, the SSC recommended that further work be done on the development of a control rule that allows for maximized yields while keeping whiting above the overfished threshold.

Based on its review, the SSC endorsed the use of both models in setting 2006 ABCs and OYS and noted that the results of both models could be combined, with each model given equal weighting, to form the basis of a management recommendation.

ABC/OY Recommendations

The range of U.S. ABCs and OYs considered by the Council and analyzed in the EIS for 2006 included: a low ABC/OY of 114,296 mt, which represents 50 percent of the medium ABC/OY; a medium ABC/OY of 228,593 mt, based on the results of the 2004 assessment with the OY being set equal to the ABC because the stock biomass is greater than 40 percent of the unfished biomass; and a high ABC/OY of 457,186 mt, which is twice the amount of the medium ABC/OY.

At its March 6-10, 2006, meeting in Seattle, WA, the Council reviewed the results of the new whiting stock assessment and recommended adopting a U.S.-Canada coastwide ABC of 661,680 mt (results in a U.S. ABC of 518,294 mt based on q=1 and the harvest rate proxy of F40%. Because the whiting biomass is estimated to be below 40 percent of its unfished biomass, the 40/10 adjustment was applied as defined by the U.S.-Canada agreement. With the 40/10 adjustment, the U.S.-Canada coastwide OY was 593,750 mt with the q=1 model, and 883,490 mt with the q=0.69 model. The potential OYs with the 40/10 adjustment were unsupportably high, at record levels during a time when the stock biomass is in decline. Both 40/10 based OYs were projected to result in the stock biomass falling below the overfished threshold by 2007. Given the relative impact on future stock biomass levels, the Council considered a more conservative range of U.S.-Canada coastwide OYs that were between 100,000 mt and 400,000 mt.

Following discussion and public testimony, the Council recommended adopting a U.S.-Canada coastwide OY of 364,842 mt with a corresponding U.S. OY of 269,069 mt. The U.S. OY is the same as the OY value that was in place in 2005. With a U.S. OY of 269,069 mt, the stock biomass level is projected to drop below the overfished level by 2008 if q=1 is the true state of nature; however, the biomass would remain near 30 percent of the unfished level if q=0.69 is the true state of nature. When the results of both models are combined and given equal weighting, as recommended by the SSC, the 2008 depletion level is projected to be slightly above the overfished level. Because whiting stock assessments are prepared annually and OYs adjusted annually, the risk of reaching an overfished conditions is reduced. A new stock assessment will be prepared prior to the 2007 fishing year and will provide an opportunity to further adjust harvest levels in response to new assessment information. The 2007 assessment will further investigate the appropriateness of model parameters, harvest rates proxies, and year class strength.

Overfished Species

The availability of overfished species as incidental catch, particularly Pacific ocean perch, canary rockfish, darkblotched rockfish, and widow rockfish, may prevent the industry from harvesting the entire whiting OY during 2006. To allow the industry to have the opportunity to harvest the higher whiting OY, the Council recommended bycatch limits for certain overfished species. With bycatch limits, the industry has the opportunity to harvest a larger amount of whiting, if they can do so while keeping the incidental catch of specific overfished species within adopted bycatch limits. Regulations provide for the automatic closure of the commercial (non-tribal) portion of the whiting fishery upon attainment of a bycatch limit.

In recent years, the most constraining overfished species for the whiting fishery have been darkblotched, canary and widow rockfish. Prior to this final rule, regulations at 50 CFR 660.373 (b)(4) contained the following bycatch limits for the commercial sectors (non-tribal) of the whiting fishery: 7.3 mt bycatch limit for canary and 243.2 mt for widow rockfish.

At the March 2006 Council meeting, the Council's groundfish management team (GMT) examined the 2006 whiting OY alternatives in relation to the impacts of incidental catch of overfished species. With an OY of 269,069 mt and in the absence of any further restrictions, the catch of canary rockfish was estimated to be approximately 5.4 mt, the catch of widow rockfish was estimated to be approximately 122 mt, and the catch of darkblotched rockfish was estimated to be approximately 16.2 mt. As in 2005, canary rockfish was found to be the most constraining overfished species for the 2006 whiting fishery. After considering the projected catch of overfished species in all other fishing and research activities, the Council recommended that the canary rockfish bycatch limit for the whiting fishery be set at 4.7 mt, which was the same limit that was in effect in 2005, and that the widow rockfish bycatch limit be set at 200 mt.

The Council also considered establishing a darkblotched rockfish bycatch limit, but choose to delay its decision until its April meeting or later. If the whiting fishery encounters higher than expected take of Chinook salmon, fishers will be asked to take measures to avoid Chinook salmon catch. In 2005, fishers were required to fish seaward of the 100-fm depth contour to avoid Chinook salmon. If fishers are required or encouraged to fish in deeper waters in 2006 to avoid Chinook salmon or canary rockfish, it may result in increased darkblotched rockfish catch, which will be taken into account in establishing a darkblotched bycatch limit.

Allocations

In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes' usual and accustomed ocean fishing areas (described at 50 CFR 660.324).

The Pacific Coast Indian treaty fishing rights, described at 50 CFR 660.385, allow for the allocation of fish to the tribes through the specification and management measures process. A tribal allocation is subtracted from the species OY before limited entry and open access allocations are derived. The tribal 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 participated. It regulates, and in cooperation with NMFS, monitors this fishery so as not to exceed the tribal allocation.

Beginning in 1999, NMFS set the tribal allocation according to an abundance-based sliding scale method, proposed by the Makah Tribe in 1998 see 64 FR 27928, 27929 (May 29, 1999); 65 FR 221, 247 (January 4, 2000); 66 FR 2338, 2370 (January 11, 2001). Details on the abundance-based sliding scale allocation method and related litigation are discussed in the preamble to the proposed rule (69 FR 56570; September 21, 2004) and are not repeated here. On December 28, 2004, the Ninth Circuit Court of Appeals upheld the sliding scale approach in Midwater Trawler Cooperative v. Daley, 393 F. 3d 994 (9th Cir. 2004). Under the sliding scale allocation method, the tribal allocation varies with U.S. whiting OY, ranging from a low of 14 percent (or less) of the U.S. OY when OY levels are above 250,000 mt, to a high of 17.5 percent of the U.S. OY when the OY level is at or below 145,000 mt. For 2006, using the sliding scale allocation method, the tribal allocation will be 35,000 mt, the same as in 2005. The Makah is the only Washington Coast tribe that requested a whiting allocation for 2006. The tribal fleet is comprised of 4 mid-water trawlers who deliver to shoreside plants and to two at-sea motherships one of which also participates in the non-tribal mothership whiting fishery.

The 2006 commercial OY (non-tribal) for whiting is 232,069 mt. This is calculated by deducting the 35,000-mt tribal allocation and 2,000-mt for research catch and bycatch in non-groundfish fisheries from the 269,069 mt total catch OY. Regulations at 50 CFR 660.323(a)(4) divide the commercial OY into separate allocations for the non-tribal catcher/processor, mothership, and shore-based sectors of the whiting fishery.

The catcher/processor sector is comprised of vessels that harvest and process whiting (the fleet has typically been 6 to 7 vessels since the formation of the Pacific Whiting Conservation Cooperative in 1997). The mothership sector is comprised of catcher vessels that harvest whiting for delivery to motherships (typically 3-5 motherships operate in the fishery with one mothership also servicing the tribal fleet). Motherships are vessels that process, but do not harvest, whiting. The shoreside sector is comprised of vessels that harvest whiting for delivery to shoreside processors (In recent years, the number of participating vessels has ranged from 29 to 35 vessels some of which also service the non-tribal mothership sector). Each sector receives a portion of the commercial OY, with the catcher/processors getting 34 percent (78,903 mt), motherships getting 24 percent (55,696 mt), and the shore-based sector getting 42 percent (97,469 mt), the same as in 2005.

It should also be noted that whiting is not the only fishery that these vessels depend on. Shorebased vessels typically participate in other fisheries such as non-whiting groundfish, crab, and shrimp fisheries. Mothership and catcher-processor operations typically participate in the Alaska pollock fishery.

All whiting caught in 2006 before the effective date of this action will be counted toward the new 2006 OY. As in the past, the specifications include fish caught in state ocean waters (0-3 nautical miles (nm) offshore) as well as fish caught in the EEZ (3-200 nm offshore).

Correction

An omission was identified in the yelloweye rockfish footnote in Table 2a, which was published in the final rule of the 2005-2006 harvest specifications (December 23, 2004; 69 FR 77012). Although the Council recommended that regional recreational harvest guidelines be specified for yelloweye rockfish to allow the states to swiftly close the recreational fisheries if the amount anticipated to be taken in the recreational fishery was reached, the yelloweye rockfish footnote in Table 2a neglected to identify the value of anticipated recreational catch as a harvest guideline or to apportion it north and south of the California/Oregon boarder as recommended by the Council and addressed in the EIS. The states recently notified NMFS of the omission. Specifying the anticipated amount as a harvest guideline is necessary to keep the fishery within the yelloweye rockfish OY specified for rebuilding, therefore the omission is being remedied with this document.

Classification

The final whiting specifications and management measures for 2006 are issued 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.

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to the 2006 Pacific whiting specifications and the canary and widow rockfish bycatch limits under 5 U.S.C. 553(b)(B). Also for these 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 as soon as possible after the April 1, 2006, fishery start date.

The FMP requires that fishery specifications be evaluated periodically using the best scientific information available. NMFS does a stock assessment every year in which U.S. and Canadian scientists cooperate. The 2006 stock assessment update for whiting was prepared in early 2006, which is the optimal time of year to conduct stock assessments for this species. 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 when determining ABC and OY. Because of the timing of the assessment, the results are not available for use in developing the new ABC and OY until just before the Council's annual March meeting.

In whiting fisheries, vessels tend to catch overfished species at sporadic and unpredictable rates. Protection of overfished species is required by the FMP and implementing regulations. The revised canary and widow rockfish bycatch limits for the whiting fisheries are intended to keep the overall harvest of overfished species within their rebuilding OYs. If the revision of bycatch limits for canary and widow rockfish were delayed for a public notice and comment period, the 4.7 mt of canary rockfish and 200 mt of widow rockfish available to the whiting fishery would likely be taken before the completion of the public comment period. Therefore, delaying this final rule could result in unexpectedly high bycatch of canary and widow rockfish such that the annual OY established for rebuilding is exceeded, or that many other portions of the groundfish fishery would have to be closed to make up for bycatch in the whiting fishery. Allowing the fisheries to exceed overfished species' OY would be contrary to the public's interest in rebuilding these overfished species and NMFS' obligations under the Magnuson-Stevens Act.

The proposed rulemaking to implement the 2006 specifications and management measures, published on September 21, 2004 (69 FR 56550), addressed the delay in adopting the whiting ABC and harvest specifications. NMFS requested public comment on the proposed rule through October 21, 2004. The final rule was published on December 23, 2004 (69 FR 77012) and again explained that the range in the specifications would be adjusted following the Council's March 2005 and 2006 meetings and announced in the Federal Register as a final rule shortly thereafter.

As explained above, NMFS was recently notified by the states that the regional recreational harvest guidelines for yelloweye had been omitted from the final rule. Though each of the three states has adopted regulations that conform to the Federal requirements, the inclusion of the yelloweye regional harvest guideline is particularly important for recreational fishery management in California. The State of California has adopted regulatory language that allows the recreational fishery to be closed quickly if a Federal recreational harvest guideline is reached. Given the large number of recreational fishery participants, the limited amount of information to project catch, and the low OY for yelloweye rockfish, overfishing could occur quickly if California did not have a mechanism for stopping the fishery if the harvest guideline were to be reached. Revising the ABC/OY tables to identify the anticipated yelloweye recreational catch amount as area harvest guidelines ensures that the state recreational fisheries can be managed to stay within the rebuilding-based OY for yelloweye rockfish. Allowing the fisheries to exceed an overfished species' OY would be contrary to the public's interest in rebuilding an overfished species, thus NMFS finds good cause to waive prior public notice and comment on these revisions, under 5 U.S.C. 553(b)(B). For the reasons stated above, NMFS also finds good cause under 5 U.S.C 553 (d)(3) to waive the 30 day delay in effectiveness. This action needs to be implemented as soon as possible to allow the states to restrict the recreational fishery, if necessary, to keep catch of yelloweye rockfish within the rebuilding based OYs.

The environmental impacts associated with the Pacific whiting harvest levels being adopted by this action are consistent with the impacts in the final environmental impact statement for the 2005-2006 specification and management measures. Copies of the FEIS and the ROD are available from the Council (see ADDRESSES).

An Initial Regulatory Flexibility Analysis (IRFA) and FRFA were prepared for the 2005-2006 harvest specifications and management measures, which included the regulatory impacts of this action on small entities. The IRFA was summarized in the proposed rule published on September 21, 2004 (69 FR 56550). The following 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 December 23, 2004 (69 FR 77012). The need for and objectives of this final rule are contained in the SUMMARY and in the Background section under SUPPLEMENTARY INFORMATION. NMFS did not receive any comments on the IRFA or on the proposed rule regarding the economic effects of this final rule.

The final 2005-2006 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 and depleted stocks. The form of the specifications, in ABCs and OYS, follows 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 other measures intended to allow year-round West Coast groundfish landings without compromising overfished species rebuilding measures.

Approximately 1,700511 vessels participated in the West Coast commercial groundfish fisheries in 20013. (This figure decreased to 1,511 in 2003, the most recent year for which data are available.) Of those, about 420498 vessels (498 in 2003) were registered to limited entry permits issued for either trawl, longline, or pot gear. Of the remaining vessels, approximately 1280 vessels, about 770 participated in the open access fisheries and derived more than 5 percent of fisheries revenue from groundfish. All but 10-20 of the 1,511 vessels participating in the groundfish fisheries are considered small businesses by the Small Business Administration. In the 2001 recreational fisheries, there were 106 Washington charter vessels engaged in salt water fishing outside of Puget Sound, 232 charter vessels active on the Oregon coast, and 415 charter vessels active on the California coast. Although some charter businesses, particularly those in or near large California cities, may not be small businesses, all are assumed to be small businesses for purposes of this discussion.

In recent years the number of participants in the whiting fishery has ranged from 29 to 35 shoreside trawl vessels; 3 to 5 mothership operations-each of which are serviced typically by 3 or 4 trawl vessels, some of which deliver shoreside; and 7 catcher processors. Shore-based trawlers and trawlers that service motherships are considered small businesses as they typically earn less than $4.0 million in revenues. (In 2003, the 30 vessels that participated in the shore-based whiting fishery, earned an average of $400,000 from Pacific whiting, coastal pelagic, crab, other groundfish, and shrimp fisheries. Motherships and catcher-processors are considered “large” as they typically earn far greater than $4.0 million each because of their participation in Alaska pollock fisheries.

The Magnuson-Stevens Act requires that actions taken to implement FMPs be consistent with the 10 national standards, one of which requires that conservation and management measures shall, consistent with the conservation requirements of the Magnuson-Stevens Act, take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities and, (B) to the extent practicable, minimize adverse economic impacts on such communities. Fishing communities that rely on the groundfish resource and people who participate in the groundfish fisheries have weathered many regulatory changes in recent years. NMFS and the Council introduced the first overfished species rebuilding measures in 2000, which severely curtailed the fisheries from previous fishing levels. Since then, NMFS has implemented numerous management measures and regulatory programs intended to rebuild overfished stocks and to better monitor the catch and bycatch of all groundfish species. These programs are expected to improve the status of West Coast groundfish overfished stocks over time and, by extension, the economic health of the fishing communities that depend on those stocks. Initially, however, the broad suite of new regulatory programs that NMFS has introduced since 2000 have: reduced overall groundfish harvest levels, increased costs of participating in the fisheries, and caused confusion for fishery participants trying to track new regulatory regimes.

The Council considered five alternative specifications and management measures regimes for 2005 and 2006: the no action alternative, which would have implemented the 2004 regime for 2005 and 2006; the low OY alternative, which set a series of conservative groundfish harvest levels that were either intended to achieve high probabilities of rebuilding within TMAX for overfished species or modest harvest levels for more abundant stocks; the high OY alternative, which set harvest levels that were either intended to achieve lower probabilities of rebuilding within TMAX for overfished species or higher harvest levels for more abundant stocks; the medium OY alternative, which set harvest levels intermediate to those of the low and high alternatives;, and,; the Council OY alternative (preferred alternative,) which was the same as the medium OY alternative, but with more precautionary OY levels for lingcod, Pacific cod, cowcod, canary and yelloweye rockfish. Each of these alternatives included both harvest levels (specifications) and management measures needed to achieve those harvest levels, with the most restrictive management measures corresponding to the lowest OYS. The most notable difference between the Council's preferred alternative and the other alternatives is that alternative's requirement that trawl vessels operating north of 40°10° N. lat. use selective flatfish trawl gear. Because selective flatfish trawl gear has lower rockfish bycatch rates than conventional trawl gear, the targeted flatfish amounts available to the trawl fisheries are higher under the Council's preferred alternative than under the other alternatives. Each of the alternatives analyzed by the Council was expected to have different overall effects on the economy. Among other factors, the EIS for this action reviewed alternatives for expected changes in revenue and income from 2003 levels. The low OY alternative was expected to decrease annual commercial income from the no action alternative by $1.99 million in 2005 and 2006, decrease commercial fishery-related annual employment from the no action alternative by 0.3 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The high OY alternative was expected to increase annual commercial income from the no action alternative by $2.54 million in 2005 and 2006, increase commercial fishery-related annual employment from the no action alternative by 0.4 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The medium OY alternative was expected to increase annual commercial income from the no action alternative by $1.51 million in 2005 and 2006, increase commercial fishery-related annual employment from the no action alternative by 0.3 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The Council's OY alternative was expected to increase annual commercial income from the no action alternative by $3.02 million in 2005 and 2006, increase commercial fishery-related annual employment from the no action alternative by 0.5 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The Council's preferred alternative would have had commercial fisheries effects that were similar to or less beneficial than the medium OY alternative had the Council preferred alternative not included the requirement that trawl vessels north of 40°10′ N. lat. fish with selective flatfish trawl gear in nearshore waters. The Council's preferred alternative is intended to meet the conservation requirements of the Magnuson-Stevens Act while reducing to the extent practicable the adverse economic impacts of these conservation measures on the fishing industries and associated communities.

The 2006 ABC, OY, and sector allocations of whiting are the same as those of 2005. The bycatch limit for canary rockfish is the same as that set in 2005, though the bycatch limit for widow rockfish is slightly lower. As explained below, we expect that, compared to the economic impacts analyzed in 2004, this final rule will include some positive economic impacts due to increased production and revenue and some negative impacts due to rising fuel prices. Because of the uncertainty of these impacts, it is not possible for NMFS to quantify the net change in economic impact of this final rule as compared to that analyzed in 2004.

The 2005 fishery generated peak landings of 259,000 tons worth $29 million ex-vessel at $112 per ton. Landings in 2005 were the highest on record since 1966 when their was no domestic fishery and the only participants were foreign fishing vessels. Therefore it is expected that 2006 landings, will continue the growth in annual landings that has occurred since 2002 when the fishery harvested 132,000 tons. The 2003 fishery harvested 142,000 tons worth, on an ex-vessel basis, $17 million at $121 per ton with total catch and revenue reaching 217,000 tons and $22 million ($101 per ton) in 2004.

Based on indications from several industry representatives, markets for the whiting products may be stronger in 2006 than in 2005 as a result of European and Asian exchange rates and growing market demand. Therefore, revenues in 2006 may be greater than in 2005 as a result of price increases. Although cost information on the whiting fleets is unavailable, fuel is a major expenditure category. Compared to the first five months of 2005, fuel prices so far this year are about 15 to 20 percent higher based on fuel prices collected by the Pacific States Marine Fisheries Commission. Therefore, whiting prices will need to increase in similar fashion in order for the industry to maintain current levels of profitability. Whether expected increase in whiting prices balance out the expect increase fuel prices is unknown, but conversations with industry representatives indicates that the expectation is that 2006 will be as good or a better year for the whiting fishery. Whether there will be significant environmental changes in 2006 that effect the fishery is unknown. The ability of being able to harvest the entire whiting OY will also depend on how well the industry stays within the bycatch limits set aside for the industry.

Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation with tribal officials during the Council process.

This final rule has been determined to be exempt from review for purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

• Fishing
• Fisheries, and Indian Fisheries

Dated: May 17, 2006.

William T. Hogarth,

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.

2. In § 660.323, (a)(2) is revised to read as follows:

§ 660.323

Pacific whiting allocations, allocation attainment, inseason allocation reapportionment.

(a)* * *

(2) The non-tribal commercial harvest guideline for whiting is allocated among three sectors, as follows: 34 percent for the catcher/processor sector; 24 percent for the mothership sector; and 42 percent for the shoreside sector. No more than 5 percent of the shoreside allocation may be taken and retained south of 42° N. lat. before the start of the primary whiting season north of 42° N. lat. Specific sector allocations for a given fishing year are found in tables 1a and 2a of this subpart.

* * * * *

3. In § 660.373, paragraph (b)(4) is revised to read as follows:

§ 660.373

Pacific whiting (whiting) fishery management.

* * * * *

(b) * * *

(4) 2005-2006 bycatch limits in the whiting fishery. The bycatch limits for the whiting fishery may be used inseason to close a sector or sectors of the whiting fishery to achieve the rebuilding of an overfished or depleted stock, under routine management measure authority at § 660.370 (c)(1)(ii). These limits are routine management measures under § 660.370 (c) and, as such, may be adjusted inseason or may have new species added to the list of those with bycatch limits. For 2005, the whiting fishery bycatch limits for the sectors identified § 660.323(a) are 4.7 mt of canary rockfish and 212 mt of widow rockfish. For 2006, the whiting fishery bycatch limits are 4.7 mt of canary rockfish and 200 mt of widow rockfish.

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Subpart G [Amended]

4. Tables 2a and 2b to part 660 subpart G are revised to read as follows: