05-6323. Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Specifications and Management Measures; Inseason Adjustments; Corrections

AGENCY:

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

ACTION:

Inseason adjustments to management measures; corrections; request for comments.

SUMMARY:

NMFS announces changes to management measures in the commercial and recreational Pacific Coast groundfish fisheries. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), will allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks. This action also contains corrections to the Pacific Coast groundfish management measures.

DATES:

Effective 0001 hours (local time) April 1, 2005. Comments on this rule will be accepted through April 29, 2005.

ADDRESSES:

You may submit comments, identified by I.D. 032305B, by any of the following methods:

• E-mail: [e-mail]. Include I.D. number in the subject line of the message.
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070; or Rod McInnis, Administrator, Southwest Region, NMFS, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 90802-4213.
• Fax: [phone], Attn: Jamie Goen.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is available on the Government Printing Office'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 Pacific Fishery Management Council's website at: 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 80 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Pacific Council), and are implemented by NMFS. The specifications and management measures for 2005-2006 were codified in the CFR (50 CFR Part 600, Subpart G) and published in the Federal Register as a proposed rule on September 21, 2004 (69 FR 56550), and as a final rule on December 23, 2004 (69 FR 77012).

Most of the following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its March 6-11, 2005, meeting in Sacramento, CA. The changes recommended by the Pacific Council include: (1) a reduction in the limited entry fixed gear sablefish fishery Tier 1 limit, (2) a revision to the language in 660.381 and in the limited entry trawl trip limit table (Table 3 (North)) regarding more than one type of trawl gear onboard a vessel north of 40°10′ N. lat., (3) the addition of a row in the trip limits tables mentioning that the states may have trip limits that are more restrictive than Federal trip limits, (4) a reduction in the marine fish bag limit off Oregon, (5) a reduction in the (rockfish, cabezon, greenling complex) (RCG complex), bag limits for cabezon and greenling off California, (6) minor corrections to individual coordinates for the RCA boundaries approximating the 40 fm (73 m), 150 fm (274 m), and 200 fm (366 m) curves.

Additional changes implemented by NMFS through this inseason action include: (1) the addition of Pt. Chehalis, Washington (46°53.30′ N. lat.) to the list of “commonly used geographic coordinates” at 660.302, (2) a correction to references to 660.310 (gear restrictions and gear identification) in 660.306, (3) the addition of language in the trip limit tables to specifically refer to conservation areas, (4) the addition of language in the limited entry fixed gear and open access trip limit tables south of 40°10′ N. lat. to clarify regulations for the rockfish conservation areas (RCAs) around islands. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to trip limits or management measures will be made as necessary to allow achievement of, or to avoid exceeding, optimum yields (OYs).

Limited Entry Fixed Gear Sablefish Fishery Tier 1 Limit

At the Pacific Council's March meeting, NMFS released an updated analysis of the 2005 limited entry fixed gear fishery for sablefish. NMFS conducted this analysis using the same modeling approach as used for the 2004 fishery, but updated the analysis with more recent observer data. NMFS had conducted preliminary analysis of tier limits in the primary fishery and bycatch associated with all limited entry fixed gear sablefish fishing in advance of the 2005 fishing season. Since that 2004 analysis, an additional year of observer and fishticket data has been incorporated into the model. The model now uses data from 2001 through 2004, with progressively lower weight given to data from earlier years. For further information on the bycatch model, the West Coast Observer Program, and bycatch mitigation in the groundfish fisheries, see the preamble to the proposed rule for the 2005-2006 fishery specifications and management measures (69 FR 56550, September 21, 2004).

As in 2004, coastwide annual ratios of sablefish discard and overfished species bycatch in the sablefish tier fishery were calculated for two depth strata: greater than 100 fm (183 m) and greater than 150 fm (274 m). These strata reflect the seaward boundaries of the non-trawl RCAs, as currently specified for the areas north and south of 40°10′ N. lat., respectively. Sablefish discard, as a percentage of estimated total catch compared to prior years' estimates, increased for pot gear and decreased for line gear with the inclusion of observer and fishticket data from the 2004 fishery. The differences in the sablefish discard ratios between longline and pot gear largely offset each other, resulting in a minor change in the available tier cumulative limits. For most overfished species, bycatch ratios remained roughly the same. However, estimates of lingcod bycatch increased over 2004 estimates for both gear types within both depth strata. This result may be due to the trend of increasing biomass for northern lingcod evident in the most recent stock assessment for lingcod and because most observed sablefish trips occurred off Oregon and Washington. Projected incidental catch of lingcod changes by the largest amount of any of the depleted species, increasing by 2.4 mt. Projected canary rockfish incidental catch is estimated to increase by 0.2 mt. None of the remaining incidental catch estimates changed by more than 0.1 mt from the original projections for this fishery. These changes in estimates of incidental catch are within the OYs for those species.

Therefore, the Pacific Council recommended and NMFS is implementing a reduction in the limited entry fixed gear sablefish fishery Tier 1 cumulative limit from 64,100 lb (29,075 kg) to 64,000 lb (29,030 kg) to keep the harvest of sablefish within harvest targets for this fishery.

Limited Entry Trawl Fishery- More Than One Gear Type Onboard Requirements

Federal regulations at 50 CFR 660.381(c)(4) address the question of which trawl trip limits apply to vessels that are carrying more than one type of trawl gear on board. Table 3 of part 660, subpart G provides trawl trip limits that vary by trawl gear type—large and small footrope gear, versus selective flatfish gear. North of 40°10′ N. lat., only selective flatfish trawl gear is permitted shoreward of the trawl RCA. Because the trip limits differ for the different gear types, NMFS must provide regulations on which trip limits apply to a vessel that uses more than one type of trawl gear during a cumulative limit period, or that carries more than one type of trawl gear on board during a fishing trip. The regulations NMFS implemented on January 1, 2005 (69 FR 77012) for more than one type of trawl gear on board have proven to be confusing for the public; thus, the agency worked with the Pacific Council at its March 2005 meeting on clarifying regulatory language for trawl fishery participants.

Federal regulations for the “more than one type of trawl gear on board” allowance (50 CFR Part 660.381) in the limited entry trawl regulations for the area between the U.S./Canada border and 40°10′ N. lat. implemented at the beginning of 2005 have been interpreted in a more liberal manner than the Council had originally intended. Federal regulations could have been interpreted to mean that more restrictive trip limits only apply to the gear used for a species or species group, rather than for all species included in the trip limit table for the entire cumulative period. Thus, the regulations could have been interpreted to mean that if selective flatfish gear were the most restrictive gear for flatfish but were the least restrictive for DTS species (Dover sole, thornyheads, and sablefish), a vessel that only fished for flatfish with selective flatfish trawl gear could then, on a separate trip, use selective flatfish trawl gear to catch the more liberal DTS limits. This more liberal regulatory interpretation was not compatible with the bycatch model the Pacific Council had used to craft the 2005-2006 groundfish trip limit recommendations. To be compatible with the bycatch model for this fishery, the regulations should have read that if fishers have more than one type of trawl gear on board, at any time during the cumulative limit period, they are limited to harvesting (for the entire cumulative limit period) the more restrictive trip limit associated with the gear they had on board. This requirement provides flexibility to fishers while taking into consideration what was modeled in the trawl bycatch model and what is enforceable.

The original intent of the regulation is as follows: (1) If a vessel only has selective flatfish gear on board during a cumulative limit period, the vessel can only access selective flatfish limits during the entire cumulative limit period, (2) If a vessel has only has large or small footrope gear on board during a cumulative limit period, the vessel can only access large or small footrope limits during the entire cumulative limit period, and (3) If a vessel has both selective flatfish and large or small footrope gear on board during a cumulative limit period (either simultaneously or successively), the vessel can only access the lower limits during the entire cumulative limit period.

Thus, the Pacific Council recommended the following language to restore the original intent of the requirement: “North of 40°10′ N. lat., a vessel may have more than one type of limited entry trawl gear on board, either simultaneously or successively, during a cumulative limit period. If only selective flatfish trawl gear is on board during the entire cumulative limit period, then a vessel is only permitted to access the selective flatfish trawl gear cumulative limits, regardless of whether the vessel is fishing shoreward or seaward of the RCA. If only large or small footrope trawl gear is on board during an entire cumulative limit period, a vessel is only permitted to access the small or large footrope trawl gear cumulative limits and that vessel must fish seaward of the RCA. If more than one type of bottom trawl gear (selective flatfish versus large footrope or small footrope) is on board, either simultaneously or successively, during a cumulative limit period, a vessel is only permitted to access the most restrictive cumulative bottom trawl limit associated with any of these gears. The most restrictive cumulative bottom trawl limit associated with any gear applies for that trip and for the entire cumulative limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA.” In implementing this provision, NMFS has slightly modified the Pacific Council's language to use the regulatory term “subject to” cumulative limits, rather than the more informal term regarding “access to” cumulative limits. NMFS also removed language regarding a limit applying for a trip as unnecessary because the limits apply for the entire cumulative period.

In addition, the Pacific Council recommended and NMFS is implementing a change to the limited entry trawl trip limit table North of 40°10′ N. lat. (Table 3 (North)) to add a “multiple bottom trawl gear” category which specifies the trip limits that apply when multiple bottom gears are onboard, either simultaneously or successively, during a cumulative limit period.

Pt. Chehalis, Washington

In 50 CFR part 660.302, Definitions, under the definition for “North-South management area” there is a list of geographic coordinates commonly used in groundfish management. Pt. Chehalis, Washington, 46°53.30′ N. lat., is commonly used in the Pacific Coast groundfish fishery as a southern boundary for retention of halibut caught incidentally to the primary sablefish fishery during certain times of year. However, this coordinate is not currently included in the list of commonly used geographic coordinates. Thus, NMFS is adding Pt. Chehalis, Washington, 46°53.30′ N. lat., to the list at 50 CFR 660.302 under “North-South management area.”

Oregon's Recreational Marine Fish Bag Limit

Following the adoption of the 2005-06 management measures, Oregon's Fish and Wildlife Commission adopted changes to their recreational fishery regulations that reduced the daily bag limit of marine fish (all marine fish species except Pacific halibut, lingcod, sanddab, surf perch, bait fish, offshore pelagic species, striped bass, hybrid bass, and salmonids) from 10 fish to 8 fish in aggregate. This change in state regulations was designed to keep catch within state harvest guidelines and does not affect the current Federal estimated impacts. Thus, to ensure consistency between Federal and state regulations, the Pacific Council recommended and NMFS is implementing a reduction in the daily bag limit for the recreational fishery off Oregon for marine fish from ten fish to eight fish in aggregate.

California's Recreational RCG (Rockfish, Cabezon, Greenling) Complex Bag Limit

Following the adoption of the 2005-06 management measures, California's Fish and Game Commission adopted changes to their recreational fishery regulations, in October 2004, that changed the cabezon sub-bag limit from three fish to one fish and the greenlings (all species of the genus Hexagrammos combined) sub-bag limit from two fish to one fish. The cabezon and greenling sub-bag limits are part of the “RCG complex” recreational fishery off California. These changes to state regulations were intended to help keep total fishing mortality within their respective 2005 state harvest targets. Thus, to ensure consistency between federal and state regulations, the Pacific Council recommended and NMFS is implementing a reduction in the cabezon sub-bag limit from three fish to one fish and the greenling (all species of the genus Hexagrammos combined) sub-bag limit from two fish to one fish in the recreational fishery off California.

Corrections and Clarifications

The following corrections and clarifications are being made to the 2005-2006 management measures.

In the final rule for the 2005-2006 specifications and management measures, § 660.310. Gear restrictions and gear identification, was removed because the paragraphs contained in that section were moved to §§ 660.381 through 660.384. Therefore, references to § 660.310 in § 660.306 are being corrected to match the current locations of the gear restrictions and gear identification regulations.

Current Federal regulations at §§ 660.381 through 660.384, state that state regulations can be more restrictive than Federal regulations. In order to emphasize this to the regulated public, a row is being added to the trip limit tables stating that state trip limits may be more restrictive than Federal trip limits, particularly in waters off Oregon and California.

Language is being added in a row near the beginning of the trip limit tables to clarify that §§ 660.390 through 660.394 refer to conservation areas, not just § 660.390.

For the limited entry fixed gear and open access trip limits tables south of 40°10′ N. lat. (Table 4 (South) and Table 5 (South)), language is being added to clarify that RCA boundaries apply around specific islands south of 34°27′ N. lat., as already stated in the regulatory text in §§ 660.391 through 660.394.

In addition, there are minor corrections to some coordinates for the RCA boundaries approximating the 40 fm (73 m), 150 fm (274 m), and 200 fm (366 m) depth contours. These corrections prevent RCA boundaries from crossing each other and better align the boundaries to their respective depth contours.

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 authorized by the Pacific Coast groundfish FMP and its implementing regulations, and 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.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The data upon which these recommendations were based was provided to the Pacific Council and the Pacific Council made its recommendations at its March 6-11, 2005 meeting in Sacramento, CA. There was not sufficient time after that meeting to draft this notice and undergo proposed and final rulemaking before these actions need to be in effect as explained below. For the actions to be implemented in this notice, prior notice and opportunity for comment would be impracticable and contrary to the public interest because affording the time necessary for prior notice and opportunity for public comment would impede the Agency's function of managing fisheries using the best available science to approach without exceeding the OYs for federally managed species. The adjustments to management measures in this document include changes to the commercial and recreational groundfish fisheries, including corrections and clarifications. Changes to the limited entry fixed gear sablefish fishery's tier 1 limit and revisions to the limited entry trawl language regarding more than one gear type onboard a vessel must be implemented in a timely manner, and by the time the tier season starts on April 1, 2005, so that harvest of groundfish, including overfished species, stays within the harvest levels projected for 2005 based on modeling and the most current catch projections available. Changes to Oregon and California's recreational fishery management measures to reduce the bag limits for certain species must be implemented by April 1, 2005, the next recreational fishery management month, in order to conform Federal and state recreational regulations, to protect overfished groundfish species and to keep the harvest of other groundfish species within the harvest levels projected for 2005. Delaying any of these changes would result in management measures that fail to use the best available science and could lead to early closures of the fishery if harvest of groundfish exceeds levels projected for 2005. This would be contrary to the public interest because it would impair achievement of one of the Pacific Coast Groundfish FMP objectives of providing for year-round harvest opportunities or extending fishing opportunities as long as practicable during the fishing year.

NMFS has also provided corrections and clarifications to Federal regulations that: correct mis-referenced sections of the regulations, clarify for the public that the states may implement trip limits that are more restrictive than those implemented by the Federal government; correct the trip limit tables to properly reference conservation area regulations as occurring in 660.390-660.394, not just in 660.390; augment the trip limit tables with references to regulatory text concerning RCA boundaries around islands; and correct mis-placed coordinates for the 40 fm (73 m), 150 fm (274 m), and 200 fm (366 m) depth contours. Affording an opportunity for prior notice and comment on these corrections and clarifications is unnecessary because they are not substantive changes to the regulations and contrary to the public interest because they clarify regulations that might otherwise be confusing to the public.

For these reasons, good cause also exists to waive the 30 day delay in effectiveness requirement under 5 U.S.C. 553 (d)(3).

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: March 25, 2005.

Regina L. Spallone,

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 AND IN THE WESTERN PACIFIC

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

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

2. In § 660.302, in the definition of “North-South management area,” paragraphs (2)(iii) through (2)(xxi) are redesignated as paragraphs (2)(iv) through (2)(xxii) and a new paragraph (2)(iii) is added to read as follows:

§ 660.302

Definitions.

(2) * * *

(iii) Pt. Chehalis, WA—46°53.30′ N. lat.

3. In § 660.306, paragraphs (a)(3), (a)(5), (a)(8), and (h)(2) are revised to read as follows:

§ 660.306

Prohibitions.

(a) * * *

(3) Falsify or fail to affix and maintain vessel and gear markings as required by § 660.305 or §§ 660.382 and 660.383.

(5) Fish for groundfish using gear not authorized in this subpart or in violation of any terms or conditions attached to an EFP under § 660.350 or part 600 of this chapter.

(8) Possess, deploy, haul, or carry onboard a fishing vessel subject to this subpart a set net, trap or pot, longline, or commercial vertical hook-and-line that is not in compliance with the gear restrictions in §§ 660.382 and 660.383, unless such gear is the gear of another vessel that has been retrieved at sea and made inoperable or stowed in a manner not capable of being fished. The disposal at sea of such gear is prohibited by Annex V of the International Convention for the Prevention of Pollution From Ships, 1973 (Annex V of MARPOL 73/78).

(h) * * *

(2) Operate any vessel registered to a limited entry permit with a trawl endorsement and trawl gear on board in a Trawl Rockfish Conservation Area or a Cowcod Conservation Area (as defined at § 660.302), except for purposes of continuous transiting, with all groundfish trawl gear stowed in accordance with § 660.381(d)(4)(ii), or except as otherwise authorized in the groundfish management measures published at § 660.381(d)(4).

4. In § 660.372, the second to the last sentence in paragraph (b)(3)(i) is revised to read as follows:

§ 660.372

Fixed gear sablefish fishery management.

(b) * * *

(3) * * *

(i) * * * For 2005, the following limits are in effect: Tier 1 at 64,000 lb (29,030 kg), Tier 2 at 29,100 lb (13,200 kg), and Tier 3 at 16,600 lb (7,530 kg). * * *

5. In § 660.381, paragraph (c)(4)(i) is revised to read as follows:

§ 660.381

Limited entry trawl fishery management measures.

(c) * * *

(4) * * *

(i) North of 40°10′ N. lat., a vessel may have more than one type of limited entry trawl gear on board, either simultaneously or successively, during a cumulative limit period. If a vessel fishes exclusively with selective flatfish trawl gear during an entire cumulative limit period, then the vessel is subject to the selective flatfish trawl gear cumulative limits during that limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA. If a vessel fishes exclusively with large or small footrope trawl gear during an entire cumulative limit period, the vessel is subject to the small or large footrope trawl gear cumulative limits and that vessel must fish seaward of the RCA during that limit period. If more than one type of bottom trawl gear (selective flatfish, large footrope, or small footrope) is on board, either simultaneously or successively, at any time during a cumulative limit period, then the most restrictive cumulative limit associated with the bottom trawl gears on board during that cumulative limit period applies for the entire cumulative limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA. Midwater trawl gear is allowed only for vessels participating in the primary whiting season. On non-whiting trips (defined as any fishing trip that takes, retains, possess, or lands less than 10,000 lb (4,536 kg) of whiting), vessels with both large footrope and midwater trawl gear on board during a trip are subject to the large footrope limits while fishing with large footrope gear seaward of the RCA.

6. In § 660.384, paragraphs (c)(2)(iii), and (c)(3)(ii)(B) are revised to read as follows:

§ 660.384

Recreational fishery management measures.

(c) * * *

(2) * * *

(iii) Bag limits, size limits. The bag limits for each person engaged in recreational fishing in the EEZ seaward of Oregon are two lingcod per day, which may be no smaller than 24 in (61 cm) total length; and 8 marine fish per day, which excludes Pacific halibut, salmonids, tuna, perch species, sturgeon, sanddabs, lingcod, striped bass, hybrid bass, offshore pelagic species and baitfish (herring, smelt, anchovies and sardines), but which includes rockfish, greenling, cabezon and other groundfish species. The minimum size limit for cabezon retained in the recreational fishery is 16 in (41 cm) and for greenling is 10 in (26 cm). Taking and retaining canary rockfish and yelloweye rockfish is prohibited.

(3) * * *

(ii) * * *

(B) Bag limits, hook limits. In times and areas when the recreational season for the RCG Complex is open, there is a limit of 2 hooks and 1 line when fishing for rockfish. The bag limit is 10 RCG Complex fish per day coastwide. Retention of canary rockfish, yelloweye rockfish and cowcod is prohibited. North of 40°10′ N. lat., within the 10 RCG Complex fish per day limit, no more than 2 may be bocaccio, no more than 1 may be greenling (kelp and/or other greenlings) and no more than 1 may be cabezon. South of 40°10′ N. lat., within the 10 RCG Complex fish per day limit, no more than 1 may be bocaccio, no more than 1 may be greenling (kelp and/or other greenlings) and no more than 1 may be cabezon. Multi-day limits are authorized by a valid permit issued by California and must not exceed the daily limit multiplied by the number of days in the fishing trip.

7. In § 660.391, paragraph (k)(23) is revised to read as follows:

§ 660.391

Latitude/longitude coordinates defining the 27 fm (49 m) through 40 fm (73 m) depth contours.

(k) * * *

(23) 33°28.90′ N. lat., 118°36.43′ W. long.

8. In § 660.393, paragraphs (h)(234) through (h)(258) are redesignated as paragraphs (h)(235) through (h)(259) and a new paragraph (h)(234) is added to read as follows:

§ 660.393

Latitude/longitude coordinates defining the 100 fm (183 m) through 150 fm (274 m) depth contours.

(h) * * *

(234) 36°01.00′ N. lat., 121°36.95′ W. long.

9. In § 660.394, paragraphs (f)(73) and (f)(142) are revised to read as follows:

§ 660.394

Latitude/longitude coordinates defining the 180 fm (329 m) through 250 fm (457 m) depth contours.

(f) * * *

(73) 46°17.73′ N. lat., 124°39.58′ W. long.

(142)40°30.00′ N. lat., 124°38.58′ W. long.

10. In part 660, subpart G, Tables 3-5 are revised to read as follows: