05-9001. Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Spiny Dogfish; Open Access; Routine Management Measure; Closure Authority

AGENCY:

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

ACTION:

Temporary rule; request for comments.

SUMMARY:

This emergency rule establishes routine management measure authority, under the Pacific Coast Groundfish Fishery Management Plan (Pacific Coast Groundfish FMP), to reduce trip limits to incidental levels in the open access fishery for groundfish before the sector has taken its full target groundfish species' allocations, to minimize impacts on overfished species. This action establishes a mechanism that can be used to quickly restrict the directed open access groundfish fishery if NMFS estimates that the incidental catch of an overfished species is too high.

DATES:

Effective May 2, 2005, until November 1, 2005. Comments must be received no later than 5 p.m., local time on June 6, 2005.

ADDRESSES:

You may submit comments, identified by I.D. 042605G by any of the following methods:

• E-mail: [e-mail]: Include 042605G in the subject line of the message.
• Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone], Attn: Yvonne deReynier
• Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Yvonne deReynier.

Copies of the Final Environmental Impact Statement (FEIS) for the harvest specifications and management measures for the 2005-2006 groundfish fisheries are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: [phone]. Copies of the Record of Decision, final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide for the groundfish harvest specifications for 2005-2006 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:

Yvonne deReynier (Northwest Region, NMFS), phone: [phone]; fax: [phone] and; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

This emergency rule is accessible via the Internet at the Office of the Federal Register's website at www.gpoaccess.gov/​fr/​index.html. Background information and documents are available at the NMFS Northwest Region website at www.nwr.noaa.gov/​1sustfsh/​gdfsh01.htm. and at the Council's website at www.pcouncil.org.

Federal regulations at 50 CFR 660.370(c) authorize the use of routine management measures in the groundfish fishery off Washington, Oregon, and California for the purpose of rebuilding and protecting overfished or depleted stocks. This action is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requirements on the protection and rebuilding of overfished species.

New Entrant to the Open Access Fishery for Spiny Dogfish off the U.S. West Coast

In mid-April 2005, a representative of a Seattle-based fishing company contacted NMFS about the possibility of using one of its vessels to operate off Washington State in the West Coast open access fishery for spiny dogfish, Squalus acanthias. The vessel in question is a freezer-longliner 124.5 ft (38.3 m) in length. Vessel operators were intending to both catch and process dogfish and other groundfish species at sea in May-June 2005. The West Coast open access groundfish fishery is open to any vessel that is otherwise authorized to fish under U.S. Coast Guard safety, registration, and other requirements. Under the 2005-2006 groundfish fishery specifications and management measures, dogfish is part of the “other fish” complex. Dogfish is an unassessed species; NMFS anticipates that there will be adequate data available for its first assessment in time for the 2007 assessment season. There is no limit on the amount of dogfish that may be taken in either the limited entry or open access fisheries (69 FR 77012, December 23, 2004.) NMFS's normal preference would be to coordinate with the Council on accommodating this vessel into the West Coast groundfish fisheries management. Because the Council does not meet again until June 13-17, 2005, the agency believes that it must take action in advance of any formal coordination with the Council. In developing this emergency rule, NMFS consulted with representatives from the three West Coast states, the Council chair and staff, and with representatives from the groundfish treaty tribes.

Under Federal groundfish regulations at 50 CFR 660.314(c), an at-sea catcher-processor shorter than 125 ft (38.4 m) in length must carry one NMFS-certified observer for each day that the vessel is used to take, retain, receive, land, process, or transport groundfish. Pursuant to § 660.314(e), NMFS may additionally require such vessels to carry NMFS staff or individuals authorized by NMFS, in addition to an observer provided by a permitted observer provider. The freezer-longliner intending to fish in the open access fishery has made plans to carry and pay for one observer pursuant to § 660.314(c) and has been cooperating with NMFS in its request that the vessel carry an additional NMFS West Coast Groundfish Observer Program (WCGOP) staff observer. These observers will allow NMFS to monitor the fishing and processing activities of this vessel on a daily basis, providing valuable bycatch data on this fishery.

The freezer-longliner intending to fish in the open access fishery for dogfish is of a notably larger harvest capacity than the West Coast vessels that traditionally participate in the longline dogfish fishery. Traditional West Coast longline dogfish vessels use 1-2,000 hooks per longline set, whereas freezer-longliners of this vessel's class will use 10-20,000 hooks per set. NMFS reviewed observer data from this and similar vessels in their operations off Alaska in order to compare their catch capabilities against that of vessels in the West Coast longline dogfish fleet. Vessels of this class routinely take 200 mt or more of groundfish per month. In 2004, the West Coast dogfish longline fleet landed 205 mt of dogfish, with vessels taking a high of 40-50 mt each of landed groundfish catch per month. These numbers are not a straight comparison because the freezer-longliner catch is in total (landed + discard) catch, whereas the traditional dogfish longliner boat catch is in landed catch. There is, however, a clear disparity between the amount of groundfish that a freezer-longliner of this vessel's class is able to take when compared against the amount of groundfish that a traditional West Coast longline vessel is able to take.

Bycatch Management in the West Coast Groundfish Fisheries

In the preamble to its proposed rule to implement the 2005-2006 groundfish harvest specifications and management measures, NMFS discussed its three-part strategy to meet Magnuson-Stevens Act mandates on minimizing and monitoring bycatch: (1) Gather data through a standardized reporting methodology on the amount and type of bycatch occurring in the fishery; (2) assess this data through bycatch models to estimate when, where, and with which gear types bycatch of varying species occurs; and (3) implement management measures through Federal fisheries regulations that minimize bycatch and bycatch mortality (69 FR 56550, September 21, 2004). Bycatch management and monitoring in the West Coast groundfish fisheries is particularly focused on monitoring the total catch of overfished groundfish species. There are eight overfished groundfish species, several of which are taken in a broad array of commercial and recreational fisheries with a wide variety of gear types. Based on observer, survey, and exempted fishing permit data, NMFS believes that canary and yelloweye rockfish are the overfished species most likely to be negatively affected by an increase in open access dogfish fishing effort off the northern West Coast. Under Federal regulations at § 660.383(a), retention of canary and yelloweye rockfish is prohibited in the open access fisheries. Current NMFS data systems are already capable of swiftly receiving and aggregating the observer data that will be generated through a freezer-longliner's operating in West Coast water, thus incorporating this vessel into the first part of NMFS's bycatch strategy can be accommodated through regular NMFS programs.

NMFS plans to provide its first release of WCGOP data on the open access fisheries in time for the June 13-17, 2005, Council meeting in Foster City, CA. For the 2005-2006 management cycle, NMFS and the Council developed estimates of total overfished species catch for the directed open access fisheries based on historic catch levels during years when fishing was less constrained by overfished species rebuilding efforts. Overfished species total catch estimates for the incidental open access fisheries, those fisheries that do not target groundfish directly but which may take groundfish incidentally, were derived from a combination of historic catch and state observation data. The combined estimated effects of all of the fisheries known to take groundfish either directly or incidentally is summarized in Table 2-13a and 2-13b of the FEIS for the 2005-2006 groundfish harvest specifications and management measures. This table, informally known in the Council process as the “bycatch scorecard,” is used to both provide a baseline for expected effects of the different fisheries on overfished species and to track those effects during a fishing year, as they may be affected by new data.

In the bycatch scorecard, 1.0 mt of canary rockfish and 0.6 mt of yelloweye rockfish are expected to be taken in the 2005 directed open access fisheries. An additional 1.8 mt of canary rockfish and 0.8 mt of yelloweye rockfish are expected to be taken in the 2005 incidental open access fisheries, those fisheries that do not target groundfish but which may take groundfish incidentally. Both of these species also have unassigned amounts of fish that are not currently expected to be taken in any fishery. The bycatch scorecard did not anticipate the entrance of a vessel like a 124.5 ft (38.3 m) freezer-longliner into the open access fisheries. There are no Federal fishery regulations, however, prohibiting such a vessel from entrance into the open access fishery. Barring further recommendations from the Council, any bycatch of canary and yelloweye rockfish taken in the open access longline dogfish fishery would need to be accommodated within the current bycatch scorecard amounts of 1.0 mt of canary rockfish and 0.6 mt of yelloweye rockfish for the directed open access fisheries. Constraining the freezer-longliner to the directed open access fishery's bycatch scorecard amounts would meet the second part of NMFS's bycatch strategy of managing fisheries to attribute bycatch estimates of overfished species to their appropriate fishery sectors and gear types.

Without the action finalized in this emergency rule, NMFS does not believe that it would have adequate Federal regulations to accommodate the entrance of a freezer-longliner into the open access dogfish fishery while minimizing bycatch and preventing overfished species optimum yields (OYS) from being exceeded. NMFS is implementing this emergency rule to ensure that the third part of NMFS's bycatch strategy of minimizing bycatch through appropriate regulatory measures is met for this and any other similar entrants to the open access fishery.

Routine Management Measures

The regulatory measures available to manage the West Coast groundfish fisheries include, but are not limited to, harvest guidelines, quotas, landing limits, frequency limits, gear restrictions (escape panels or ports, codend mesh size, etc.), time/area closures, prohibited species, bag and size limits, permits, other forms of effort control, allocation, reporting requirements, and onboard observers. Routine management measures are those regulatory measures that the Council determines are likely to be adjusted on an annual or more frequent basis.

Routine management measures are necessary to meet the varied and interwoven mandates of the Magnuson-Stevens Act and the Pacific Coast Groundfish FMP. These mandates include: implementing the overfished species rebuilding plans, reducing bycatch, preventing overfishing, allowing the harvest of healthy stocks as much as possible while protecting and rebuilding overfished and depleted stocks, and equitably distributing the burden of rebuilding among the fishing sectors. Routine management measures may be used to address a resource problem with an overfished species.

Measures are classified as routine through a rulemaking process. For a measure to be classified as routine, NMFS determines whether the measure is appropriate to address a particular management issue. Once a measure is classified as routine, it may be modified thereafter by recommendation of the Council at a single Council meeting, providing it is used for the same intended purpose as the original measure. This allows for a swift adjustment of management measures to respond to updated information received during the fishing year. (See the Pacific Coast Groundfish FMP at Section 6.2)

In August 2004, NMFS implemented an emergency rule to set a canary rockfish bycatch limit for the whiting fisheries as a routine management measure (69 FR 46448, August 3, 2004.) This action used the 2004 bycatch scorecard to set a canary rockfish bycatch limit of 7.3 mt. That emergency rule provided NMFS with a regulatory mechanism to close one or all non-tribal sectors of the whiting fishery if the whiting sectors collectively achieved 7.3 mt of incidental canary rockfish catch. At its September 2004 meeting, the Council adjusted the canary bycatch limit for the Pacific whiting fisheries to 6.2 mt and added a bycatch limit for darkblotched rockfish of 9.5 mt (69 FR 59816, October 6, 2004). NMFS implemented bycatch limits for the Pacific whiting fishery as a routine management measure available by permanent regulation through its final rule for the 2005-2006 groundfish harvest specifications and management measures. The authority to set bycatch limits for the Pacific whiting fishery is found in § 660.370(c)(1)(ii) and the 2005-2006 bycatch limits for canary and widow rockfish taken incidentally in that fishery are found in § 660.373(b)(4). Because bycatch limits for the Pacific whiting fishery are now permanent routine management measures, the Council may recommend that NMFS adjust those limits inseason, or may recommend that NMFS add bycatch limits for additional species inseason.

Regulatory Changes put into Effect Through This Emergency Action

The freezer-longliner planning on entering the northern West Coast dogfish fishery has similar bycatch reporting requirements and capabilities to at-sea whiting catcher-processors. Like observer data from whiting catcher-processors, observer data from a freezer-longliner would be available to NMFS on a daily basis, with an approximate one-day lag time. NMFS uses observer data to monitor the inseason total catch in the whiting fisheries, including incidental catch levels of non-target species. Because the agency would have access to a similar quality of data for a freezer-longliner vessel, NMFS believes that management via bycatch limits would be appropriate for this vessel's participation in the directed open access fishery. Therefore, with this action, NMFS is implementing the bycatch scorecard limits of 1.0 mt of canary rockfish and 0.6 mt of yelloweye rockfish for the directed open access fishery for groundfish. If those limits are estimated to have been achieved inseason, the open access fishery would be subject to incidental trip limit levels via NMFS automatic action at § 660.370(d). These bycatch limits for the directed open access fishery are intended to ensure that any increased open access harvest levels that may result from the participation of any freezer-longliner or other high capacity vessels in the open access fishery will not jeopardize either overfished species' OYs or the availability of incidental overfished species catch in fisheries other than the directed open access fishery.

Under Federal groundfish regulations at § 660.302, the open access fishery is defined as “the fishery composed of vessels using open access gear fished pursuant to the harvest guidelines, quotas, and other management measures governing the open access fishery. Any commercial fishing vessel that does not have a limited entry permit and which lands groundfish in the course of commercial fishing is a participant in the open access fishery.” Because open access fishery participants are simply defined as all vessels that do not have limited entry permits and which land groundfish, there are no regulatory mechanisms for distinguishing between the directed and incidental open access fisheries.

The bycatch scorecard, which represents the division of estimated effects of the various directed and incidental groundfish fisheries on the environment, differentiates between directed and incidental open access fisheries. If the directed open access fisheries were to achieve the canary and yelloweye rockfish bycatch limits, the bycatch scorecard would still accommodate incidental take of these species in incidental open access groundfish fisheries (salmon troll, California halibut trawl, Dungeness crab pot, etc.) At its April 4-8, 2005, meeting in Tacoma, WA, the Council discussed whether to implement vessel monitoring system (VMS) requirements for the open access fishery. During its discussion, the Council indicated a desire to differentiate between the directed and open access fisheries through a review of some minimal groundfish level that might be needed to accommodate incidental groundfish catch in non-groundfish fisheries.

NMFS reviewed landings data to estimate the minimal amount of groundfish that would be needed to allow vessels catching groundfish incidentally in fisheries directed at non-groundfish species to land their incidentally caught groundfish. Landings data indicates that vessels participating in non-groundfish fisheries that take groundfish incidentally would need access to approximately 200 lb (90.7 kg) of groundfish per month in order to continue to prosecute their non-groundfish fisheries and land incidentally caught groundfish. To recognize the bycatch scorecard's differentiation between directed and open access fisheries, NMFS is, therefore, implementing a provision that if the open access bycatch limits are reached, open access fishery participants would be permitted to land up to 200 lb (90.7 kg) of groundfish per month.

Classification

This emergency rule establishes routine management measure authority to reduce groundfish trip limits to incidental levels in the open access groundfish fishery before the sector has taken its full target groundfish species' allocations in order to address bycatch concerns for overfished species. It is issued under the authority of the Magnuson-Stevens Act at section 305(c)(1) and is consistent with the regulations implementing the Pacific Coast Groundfish FMP at 50 CFR part 660.

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive the requirement to provide prior notice and comment on this action pursuant to 5 U.S.C. 553(b)(3)(B), because providing prior notice and opportunity for public comment would be impracticable. The information on which this action is based was not available to NMFS until mid-April 2005, for a fishing activity intended for May-June 2005. There was insufficient time in April to undergo a proposed and final rulemaking, since this action needs to be in effect as soon as possible in early May. Prior notice and comment would be impracticable because affording prior notice and opportunity for public comment would impede the Agency's mandated duty to manage fisheries to protect overfished species from overfishing.

The Pacific Coast Groundfish FMP and implementing regulations provide that closed areas, seasons, trip limits, and other measures may be used to protect overfished species in any commercial fisheries and for any gear type. This action provides a mechanism to reduce groundfish trip limits to an incidental level in the open access fisheries for groundfish to keep the harvest of canary and yelloweye rockfish within their OYs. NMFS has been made aware of a new higher-capacity intended participant in the directed open access groundfish fisheries. This intended fishery participant comes to the fishery with notably greater fishing capacity than current participants, but also without the long experience of current fishery participants in avoiding bycatch of overfished species. Due to the expected faster pace of fishing of this intended fishery participant, delaying this rule could result in unexpectedly high bycatch of canary or yelloweye rockfish in the open access fishery. Both of these species are overfished and their 2005 OYs were established at rebuilding levels. High bycatch levels of these stocks could result in their OYs being exceeded, or in the closure of some or all portions of the groundfish fishery being closed because of bycatch in the open access fishery.

NMFS sets overfished species OYs using the guidance of those species' rebuilding plans, which are part of the Pacific Coast Groundfish FMP. To meet the goals of the rebuilding plans of canary and yelloweye rockfish, NMFS set 2005 OYs for those species at 46.8 mt and 26 mt, respectively. NMFS made catch projections for all West Coast groundfish fisheries before the start of the 2005 fishing year to determine if the preferred management measures would keep harvests of overfished species within their OYs. The projected catches of canary and yelloweye rockfish in the directed open access fisheries are 1.0 mt and 0.6 mt, respectively. As noted above, NMFS has recently been contacted by a high-capacity at-sea longline catcher-processor intending to join the West Coast groundfish open access fisheries to target spiny dogfish. This emergency rule is needed to address concerns that this and any other unexpected high-capacity entrants to the directed open access fisheries could jeopardize the OYs for canary and yelloweye rockfish, and thereby take away fishing opportunities from hundreds of other commercial vessels and thousands of recreational vessels that also take these species incidentally.

For the reasons described above, pursuant to 5 U.S.C. 553(d)(3), the AA also finds good cause to waive the 30-day delay in effectiveness, so that this rule may become effective as soon as possible to enable NMFS to reduce trip limits to an incidental level in the open access fisheries should either the 1.0 mt canary bycatch limit or the 0.6 mt yelloweye rockfish bycatch limit be reached by the directed open access fishery.

This emergency rule has been determined to be not significant for purposes of Executive Order 12866.

This action is within the scope of the October 2004 Environmental Impact Statement (EIS) prepared by the Council for the 2005-2006 Pacific Coast groundfish ABCs, OYS, and management measures. Copies of this EIS are available from the Council [See ADDRESSES].

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The proposed and final rules to implement the 2005-2006 groundfish harvest specifications and management measures were developed after meaningful consultation and collaboration with tribal officials from the area covered by the Pacific Coast Groundfish 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. The tribal representative on the Council made a motion to adopt the 2005-2006 tribal management measures, which was passed by the Council. This emergency rule is intended in part to constrain the incidental catch of overfished species in the directed open access fishery, so that excessive catch in that fishery does not negatively affect tribal and other fisheries for groundfish. NMFS consulted with the representatives from the groundfish treaty tribes on this emergency rule before publishing it in the Federal Register.

List of Subjects in 50 CFR Part 660

• Administrative practice and procedure
• American Samoa
• Fisheries
• Fishing
• Guam
• Hawaiian Natives
• Indians
• Northern Mariana Islands
• Reporting and recordkeeping requirements

Dated: May 2, 2005.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, 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 AND IN THE WESTERN PACIFIC

l. The authority citation for part 660 continues to read as follows:

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

2. In § 660.370, paragraphs (c)(1)(ii) and (d) are suspended and paragraphs (c)(1)(iii) and (i) are added to read as follows:

§ 660.370

Specifications and management measures.

(c) * * *

(1) * * *

(iii) Differential trip landing limits and frequency limits based on gear type, closed seasons. Trip landing and frequency limits that differ by gear type and closed seasons may be imposed or adjusted on a biennial or more frequent basis for the purpose of rebuilding and protecting overfished or depleted stocks. To achieve the rebuilding of an overfished or depleted stock, the Pacific whiting primary seasons described at § 660.373(b), may be closed for any or all of the fishery sectors identified at § 660.373 (a) before the sector allocation is reached if any of the bycatch limits identified at § 660.373(b)(4) are reached. To achieve the rebuilding of an overfished or depleted stock, groundfish trip limits in the open access fishery may be reduced to an incidental level if any of the bycatch limits identified at § 660.383(f) are reached.

(i) Automatic actions. Automatic management actions may be initiated by the NMFS Regional Administrator without prior public notice, opportunity to comment, or a Council meeting. These actions are nondiscretionary, and the impacts must have been taken into account prior to the action. Unless otherwise stated, a single notice will be published in the Federal Register making the action effective if good cause exists under the APA to waive notice and comment. Automatic actions are used in the Pacific whiting fishery to close the fishery or reinstate trip limits when a whiting harvest guideline, commercial harvest guideline, or a sector's allocation is reached, or is projected to be reached; or to reapportion unused allocation to other sectors of the fishery. An automatic action may also be used in the open access fishery to reduce groundfish trip limits to an incidental level when overfished species bycatch limits at § 660.383(f) are reached.

3. In § 660.383, paragraph (f) is added to read as follows:

§ 660.383

Open access fishery management measures.

(f) 2005 bycatch limits in the directed open access fishery. Bycatch limits for the directed open access fishery may be used inseason to reduce overall groundfish trip limits to incidental levels 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 directed open access fishery bycatch limits are 1.0 mt of canary rockfish and 0.6 mt of yelloweye rockfish. Under automatic action authority at § 660.370(d), if either of these limits is reached, groundfish trip limits will be reduced to an incidental level. Under this authority, reducing groundfish trip limits to an incidental level means that any vessel operating off the West Coast that is not registered for use with a limited entry permit will be constrained to a trip limit for all groundfish, excluding Pacific whiting of no more than 200 lb (90.7 kg) per month.