2011-24702. Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2012 Specifications and Management Measures and Secretarial Amendment 1

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

This proposed action would establish the 2012 harvest specifications and management measures for certain groundfish species taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California consistent with the Magnuson-Stevens Fishery Conservation and Management Act and the Pacific Coast Groundfish Fishery Management Plan (PCGFMP). This action includes regulations to implement Secretarial Amendment 1 to the PCGFMP. Secretarial Amendment 1 contains the rebuilding plans for overfished species and new reference points for assessed flatfish species.

DATES:

Comments must be received no later than 5 p.m., local time on November 8, 2011.

ADDRESSES:

You may submit comments, identified by NOAA-NMFS-2011-0207, by any of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at http://www.regulations.gov.
• Fax: [phone], Attn: Sarah Williams.
• Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070, Attn: Sarah Williams.

Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information.

National Marine Fisheries Service (NMFS) will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Information relevant to this proposed rule, which includes a final environmental impact statement (FEIS), a regulatory impact review (RIR), and an initial regulatory flexibility analysis (IRFA) is available for public review during business hours at the office of the Pacific Fishery Management Council (Council), at 7700 NE Ambassador Place, Portland, OR 97220, phone: [phone]. Copies of additional reports referred to in this document may also be obtained from the Pacific Fishery Management Council (Council).

FOR FURTHER INFORMATION CONTACT:

Sarah Williams, phone: [phone], fax: [phone], or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

This rule is accessible via the Internet at the Office of the Federal Register Web site at http://www.access.gpo.gov/​su_​docs/​aces/​aces140.html. Background information and documents are available at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/​Groundfish-Halibut/​Groundfish-Fishery-Management/​index.cfm and at the Council's Web site at http://www.pcouncil.org.

Background

Every other year, the Pacific Fishery Management Council (Council) makes recommendations to set biennial allowable harvest levels for Pacific Coast groundfish, and recommends management measures for commercial and recreational fisheries that are designed to achieve those harvest levels. For the 2011-2012 biennium, the Council recommended Amendment 16-5 to the PCGFMP and proposed specifications and management measures. Amendment 16-5 included one new and seven revised rebuilding plans, and new reference points for assessed flatfish species. A Draft Environmental Impact Statement (DEIS) was published in August 2010 that analyzed the effects of Amendment 16-5 and the 2011-2012 groundfish harvest specifications and management measures. During the comment period on the DEIS NMFS reviewed the DEIS and the comments and concluded that the analysis did not clearly explain the alternatives in such a way that NMFS could choose among them. Therefore the Amendment was disapproved on December 23, 2010.

Because management measures were needed, NMFS published a final rule establishing harvest specifications and management measures for most species (75 FR 27508, May 11, 2011), pursuant to NFMS' emergency authority under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1301 et seq. Accordingly, the provisions are effective for a maximum of 366 days. For more detail, see the “Comments and Responses” section of the final rule, 76 FR 27509. The provisions implemented pursuant to emergency authority included the rebuilding plans and corresponding harvest levels, new proxy reference points for assessed flatfish species, and the Overfishing Limits (OFLs), Acceptable Biological Catches (ABCs), and Annual Catch Limits (ACLs) for assessed flatfish based on the new reference points.

This action proposes to implement specifications and management measures previously in place through the emergency rules discussed above. The specifics associated with the development and decision making processes for this action can be found in the proposed rule (75 FR 67810, November 3, 2010) and final rule (75 FR 27508, May 11, 2011.

Regulations Implemented Through Secretarial Authority and Secretarial FMP Amendment 1

Under MSA section 304(a) (16 U.S.C. 1854(c)), when the Secretary of Commerce (the Secretary) disapproves of a Council's FMP amendment, the Council may resubmit a revised amendment. If the Council does not submit a revised amendment, the Secretary, acting through NMFS, is authorized to prepare an amendment, 16 U.S.C. 1854(c)(1).

NMFS disapproved of the Council's FMP amendment, and in June 2011, the Council decided not to resubmit a revised amendment. NMFS therefore proposes to implement Secretarial Amendment 1 to the FMP pursuant to section 304(c) of the MSA.

Secretarial Amendment 1 is a revised version of Amendment 16-5. While a Secretarial Amendment is rare, the substance of this Amendment is routine and implements provisions through notice and comment rulemaking that were previously created by emergency action. Specifically, this action proposes to update the regulations at 50 CFR part 660 to establish new and revised rebuilding plans, establish the 2012 harvest specifications consistent with those rebuilding plans and new flatfish proxies, and calculate the resulting shorebased trawl allocations.

Secretarial Amendment 1 also proposes to make some non-substantive structural changes to the PCGFMP by moving the descriptions of rebuilding plans and associated text to an appendix. The appendix could be updated without requiring an FMP amendment, following notice and comment provisions as described in the FMP. This change would ensure that the rebuilding plans are easily accessible to the Council, agency, and members of the public. Currently, the PCGFMP allows the updating of rebuilding parameters, such as the target year to rebuild, through regulatory amendments rather than FMP amendments. However, the exact provisions of the rebuilding plans are frequently difficult to locate because they are imbedded in the rule's text and in the main body of the FMP. By moving text to an appendix, Secretarial Amendment 1 would not change any substantive rebuilding policies or procedures described in the PCGFMP. Rather, it would enhance the public's access to current rebuilding plans; if a rebuilding parameter or other element of a rebuilding plan changes through the biennial harvest specifications and management process, the appendix would be updated after the final rule is in place without a separate FMP amendment.

Regulations Implemented Through Routine Rulemaking

In addition to the regulations proposed to implement Secretarial Amendment 1, this action proposes two regulatory changes. First, this rule proposes to correct the 2012 limited entry fixed gear sablefish tier limits. On May 18, 2011, NMFS was notified by the Executive Director of the Council that there was a mistake in the calculation of the 2011 and 2012 sablefish cumulative limits during the development of the 2011-2012 biennial specifications and management measures. The Executive Director requested that NMFS correct the sablefish cumulative limits for the limited entry fixed gear primary fishery as quickly as possible, because the 2011 primary fishery season opened on April 1, and some vessels are actively fishing on their cumulative limits. A previous rule corrected the limits for 2011 (76 FR 34910, June 15, 2011), but no correction was made for 2012. These limits were incorrect in the 2011-2012 final rule, and therefore this rule proposes to correct these limits for 2012.

The limits proposed in this rule are consistent with the analysis in the FEIS on the 2011-2012 Harvest Specifications and Management Measures and the intent of the previously published regulations because the tier limits corrected through this rule are the result of a minor calculation change and do not reflect a policy or management shift in regards to season structure, opening or closing dates of the fishery or any other management measure.

Second, this rule proposes to update the lingcod regulations and allocation tables for the Trawl Individual Quota (TIQ) program at § 660.140, because of a new geographical split for lingcod. Lingcod is one of the Individual Fishing Quota (IFQ) species that is allocated through the TIQ program. NMFS initially issued Quota Share (QS) and Quota Pounds (QP) for lingcod on a coastwide basis. For the 2011-2012 harvest specifications, the lingcod OFLs, ABCs and ACLs were split at 42° N. lat; however, the trawl rationalization regulations were not conformed to the split. Therefore, this rule proposes to conform the trawl rationalization regulations to the split at 42° N. lat.

Current regulations at 660.140(c)(3)(vii)(A)(1) state that, following initial QS allocation, if a species has a new geographical subdivision QS holders will be issued an amount of QS “for each newly created area that is equivalent to the amount they held for the area before it was subdivided.” Consistent with this provision, this rule proposes to update the list of IFQ species, the shorebased trawl allocations, the shorebased IFQ accumulation limits, update the shorebased IFQ vessel accumulation limits, the IFQ management areas, the Pacific Coast treaty Indian fisheries allocations and harvest guidelines, and Table 2d (At-Sea whiting fishery annual set asides).

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Secretarial Amendment 1, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

A DEIS and FEIS were prepared for the 2011-2012 groundfish harvest specifications and management measures, which this action would implement in part. The DEIS includes an RIR and an IRFA; the FEIS includes a FRFA. The Environmental Protection Agency published a notice of availability for the final EIS associated with this action on March 11, 2011 (76 FR 13401). A copy of the DEIS and/or FEIS is available online at http://www.pcouncil.org/​.

NMFS prepared an initial regulatory flexibility analysis (IRFA) for this rule, as required by section 603 of the RFA (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section and in the preamble. For the 2011-2012 biennium, NMFS published a final rule that established harvest specifications and management measures for most species (75 FR 27508, May 11, 2011). The IRFA and the FRFA associated with the May 11, 2011 rule making (and with the DEIS and FEIS) describe the economic impacts of the measures being proposed in this rule. The discussion below, except for the update on recent trends in the shorebased trawl fishery, repeats the FRFA discussion found in the preamble of the May 11, 2011 rule. A copy of the IRFA is available from NMFS (see ADDRESSES).

The following summary is based on analyses discussed in Chapter 4 of the FEIS and in the May 2011 FRFA.

NMFS considered five alternatives to the proposed action. A no action alternative, the Council's final preferred alternative, and three alternatives which were discussed as a “low”, “intermediate” and “high” options for overfished species ACLs. The No Action alternative would have retained the status quo in the fishery prior to NMFS' implementing the emergency rules. The Council's preferred alternative, Alternative 3, was a mixture of “high” and “intermediate” ACLs for overfished species. It is discussed in detail below. NMFS' preferred alternative was a slightly modified version of the Council's preferred alternative and only varied in the ACL values for two overfished species. The low, intermediate, and high alternatives varied only in their ACLs for overfished species. After adjusting each alternative to have the same level of whiting harvests, there are no differences between the Council's FPA and the NMFS preferred alternative in terms of ex-vessel revenues and recreational trips.

The overall economic impact of NMFS' preferred alternative is that many sectors are expected to achieve social and economic benefits similar to those under the current regulations, or the No Action alternative. For both 2011 and 2012, the combined total annual ex-vessel revenues associated with the NMFS preferred alternative including at-sea whiting, is expected to be about $90 million, compared with the No-Action level of $82 million. (Note that ex-vessel revenues are just one indicator of the commercial value of the fishery. For example, they understate the wholesale, export, and retail revenues earned from the fishery. Data on these other indicators is either incomplete or unavailable.)

On a coastwide basis, excluding at-sea whiting, commercial ex-vessel revenues for the non-tribal and tribal groundfish sectors are estimated to be approximately $70 million per year under NMFS' preferred alternative, compared with approximately $68 million under No Action; and the number of recreational bottom fish trips is estimated to be 646,000 under NMFS' preferred alternative compared with 609,000 under No Action. However, there are differences in the distribution of ex-vessel revenue and angler trips on a regional basis and on a sector-by-sector basis. These changes are driven by changes in the forecast abundance for target species and overfished species. The significant changes to major commercial target species are associated with Pacific whiting, Dover sole, petrale sole and sablefish. Compared to the No-Action Alternative, Pacific whiting harvests are expected to increase by 50 percent and Dover sole by 25 percent, while sablefish harvests are expected to decrease by 10 percent and petrale sole harvests by 23 percent. With the exception of the Pacific whiting and nearshore open access sectors, all other non-tribal commercial fisheries sectors are expected to receive lower levels of ex-vessel revenues than under No Action. The limited entry fixed gear sector shows the greatest projected decline (−10 percent) in revenue as a result of the sablefish ACL decrease. The Pacific whiting fishery at-sea sector (including tribal) revenues are expected to increase by 51 percent and the shoreside whiting trawl (excluding tribal) revenues are expected to increase by 33 percent. Ex-vessel revenues in both the non-whiting trawl (excluding tribal) and the tribal shoreside fisheries (trawl and fixed, including whiting) are expected to decrease by about 2 percent.

A variety of time/area closures applicable to commercial vessels have been implemented in recent years. The most extensive of these are the Rockfish Conservation Areas (RCAs), which have been in place since 2002 to prohibit vessels from fishing in depths where overfished groundfish species are more abundant. Different RCA configurations apply to the limited entry trawl sector and the limited entry fixed gear and open access sectors. In addition, the depth ranges covered can vary by latitudinal zone and time period. The alternatives vary somewhat in terms of the extent of RCAs. In addition to the RCAs, two Cowcod Conservation Areas (CCAs) have been in place since 1999 in the Southern California Bight to reduce bycatch of the overfished cowcod stock, and yelloweye conservation areas have been established off the Washington Coast to reduce bycatch of the overfished yelloweye rockfish stock. The NMFS preferred alternative for the limited entry non-whiting trawl fleet generates slightly lower ex-vessel revenue on a coastwide basis when compared to revenues under the current regulations or No Action alternative. This difference is primarily driven by a decrease in the abundance of sablefish and petrale sole as opposed to changes in status of constraining species. Area-based management for the limited entry non-whiting trawl fleet under the NMFS preferred alternative will be comparable to what was in place in 2009 and 2010—the area north of Cape Alava, Washington and shoreward of the trawl RCA will remain closed in order to protect overfished rockfish species. Given the decreased amount of fishable area in northern Washington since 2009, fishery participants are expected to continue to experience higher costs due to increases in fuel required to travel to and fish at those deeper depths would remain.

The fixed gear sablefish sector will generate lower revenue under NMFS' preferred alternative than No Action because the sablefish ACL has decreased. However, the fixed gear fleet will have somewhat more area available for fishing than under No Action, because fishing will be open at depths deeper than 100 fm (183 m) north of 40°10′ north latitude, whereas under No Action, depths between 100 fm (183 m) and 125 fm (229 m) will only open on days when the Pacific halibut fishery is open. Fixed gear fisheries south of 36° N. latitude will see sablefish harvest close to status quo levels. There are no recommended changes to area management relative to status quo.

Under NMFS' preferred alternative, the nearshore groundfish fishery is expected to have a moderate increase in ex-vessel revenues compared with No Action due to increased targeting opportunities for black rockfish (between 42° N. latitude and 40°10′ N. latitude) and cabezon south (South of 42° N. latitude). Fishing areas open to the nearshore fleets will be roughly the same as under No Action. Fishing opportunity and economic impacts to the nearshore groundfish sector are largely driven by the need to protect canary and especially yelloweye rockfish.

Excluding whiting, the NMFS preferred alternative is projected to decrease ex-vessel revenues by 3%, thereby providing the west coast economy with slightly lower ex-vessel revenues than was generated by the fishery under No Action. However, effects on buyers and processors along the coast will vary depending location. In addition, NMFS' preferred alternative attempts to take into account the desire expressed by buyers and processors to have a year-round groundfish fishery. Individual quota management for trawl fisheries should help accommodate this preference; however, in practice, in the absence of trip limits it is somewhat uncertain how trawl landings will be distributed in time and space.

In terms of recreational angler effort, the number of angler trips under NMFS' preferred alternative is slightly higher compared to No Action, but somewhat less than in 2009. However, an increase in angler effort under NMFS' preferred alternative occurs primarily in south and central California, while northern Washington shows a slight increase and Oregon shows no change compared with No Action. It is expected that under the proposed 2011-2012 management measures, tribal groundfish fisheries will generate less revenue and personal income than under No Action due to a reduction in sablefish harvest.

The 2011-2012 period will be the first groundfish management cycle in which the shoreside trawl sector fisheries will be conducted under the Amendment 20 trawl rationalization program, including issuance and tracking of individual fishing quotas (IFQ) for most trawl-caught groundfish species. IFQ management is designed to provide opportunities for fisherman and processors to maximize the value of their fishery by creating incentives to make the optimum use of available target and bycatch species. Since all trawl trips will be observed, catch of constraining overfished species will be monitored in real time, and individuals will be held directly responsible for “covering” all catch of groundfish species with IFQ. Since using IFQ to constrain catch of overfished species represents a real cost in terms of money and/or fishing opportunity, NMFS expects that fishers will take special care to avoid unnecessary catch of these species.

At the same time there is uncertainty about how individuals will be able to manage the individual risk inherent in a system based on personal responsibility. This issue may present a considerable challenge, especially to small businesses that have access to only a single limited entry trawl permit. Exhausting all readily available supplies of IFQ for a particularly constraining species such as yelloweye may result in the business being effectively shut down for the remainder of the season. Partly for this reason it is expected that over time the number of vessels and permits engaging in the limited entry trawl fishery will decline as fishers strive to consolidate available IFQ onto a smaller number of vessels in order to reduce the costs of harvesting the quotas. A smaller number of active vessels will mean reductions in the number of crew hired and in expenditures made in local ports for materials, equipment, supplies and vessel maintenance. As such, while wages and profits for those crew and vessel owners that do remain in the fishery should increase, the amount and distribution of ex-vessel revenues and community income will change in ways that are not yet foreseeable, but probably to the detriment of some businesses and communities currently involved in the groundfish trawl fishery.

Due to these types of countervailing uncertainties, impacts on trawl fisheries under the 2011-2012 management measures used in this analysis were estimated using a model designed to project overfished species bycatch levels under a status quo cumulative trip limit management regime. Likewise, the model used to estimate community income impacts was calibrated based on recently estimated spending patterns for regional vessels and processors. While providing a useful starting point for comparing gross-level effects under the alternatives, the true range of economic impacts achievable under the rationalized, IFQ-managed fishery may reflect a considerable departure from these estimates.

The above discussion indicates that there were uncertainties in the economic modeling because of the implementation of the IFQ program. In comparing 2011 to 2010 through June of each year: Effort in terms of number of trips has decreased by 50 percent; or in terms of vessels has decreased by 30 percent. Average catch per vessel has remained constant; however, average revenue per vessel has increased 27 percent. Total landings have decreased by 30 percent and total revenues have decreased by 10 percent. The fish are being processed by fewer buyers—the number of buyers has fallen from 41 to 25 while the number of ports where fish are processed has fallen from 18 to 15. Average ex-vessel price has increased from $0.49/lb to $0.62/lb. One of the major reasons for the increase in prices is related to sablefish. Trawl sablefish ex-vessel prices for January-June 2011 prices are up to an average of $2.41/lb. versus $1.83/lb. last year based on simple averages by port, for Jan-June. These estimates are preliminary and it is not clear if these trends will be maintained as the fishery moves into the summer and fall fisheries.

The IRFA analysis includes a discussion of small businesses. This rule will regulate businesses that harvest groundfish. According to the Small Business Administration, a small commercial harvesting business is one that has annual receipts under $4 million, and a small charter boat business is one that has annual receipts under $7 million. The IRFA estimates that implementation of NMFS preferred alternative will affect about 2,600 small entities. These small entities are those that are directly regulated by this proposed rule that is being promulgated to support implementation of NMFS' preferred alternative. These entities are associated with those vessels that either target groundfish or harvest groundfish as bycatch. Consequently, these are the vessels, other than catcher-processors, that participate in the limited entry portion of the fishery, the open access fishery, the charter boat fleet, and the tribal fleets. Catcher/processors also operate in the Alaska pollock fishery, and all are associated with larger companies such as Trident and American Seafoods. Therefore, it is assumed that all catcher/processors are “large” entities.

Best estimates of the limited entry groundfish fleet are taken from the NMFS Limited Entry Permits Office. As of June 2010, there are 399 limited entry permits, including 177 endorsed for trawl (172 trawl only, 4 trawl and longline, and 1 trawl and trap-pot); 199 endorsed for longline (191 longline only, 4 longline and trap-pot, and 4 trawl and longline); and 32 endorsed for trap-pot (27 trap-pot only, 4 longline and trap-pot, and 1 trawl and trap-pot). Of the longline and trap-pot permits, 164 are sablefish endorsed. Of these endorsements 130 are “stacked” (e.g. more than one permit registered to a single vessel) on 50 vessels. Ten of the limited entry trawl endorsed permits are used or owned by catcher/processor companies associated with the whiting fishery. The remaining 389 entities are assumed to be small businesses based on a review of sector revenues and average revenues per entity. The open access or nearshore fleet, depending on the year and level of participation, is estimated to be about 1,300 to 1,600 vessels. Again, these are assumed to be “small entities.” The tribal fleet includes about 53 vessels, and the charter boat fleet includes 525 vessels that are also assumed to be “small entities.”

NMFS' preferred alternative represents efforts to address the directions provided by the Ninth Circuit Court of Appeals, which emphasizes the need to rebuild stocks in as short a time as possible, taking into account: (1) The status and biology of the stocks; (2) the needs of fishing communities; and (3) interactions of depleted stocks within the marine ecosystem. By taking into account the “needs of fishing communities,” NMFS simultaneously takes into account the “needs of small businesses,” as fishing communities rely on small businesses as a source of economic activity and income. The FEIS and RIR/IRFA include analysis of a range of alternatives that were considered by the Council, including analysis of the effects of setting allowable harvest levels necessary to rebuild the seven groundfish species that were previously declared overfished. An eighth species, petrale sole, was declared overfished in 2010 and this action includes a new rebuilding plan for this species along with the ACLs and management measures consistent with the adopted rebuilding plan. Associated rebuilding analyses for all eight species estimate the time to rebuild under various levels of harvest.

The Council initially considered a wider range of alternatives, but ultimately rejected from further analysis alternatives allowing harvest levels higher than what is generally consistent with current policies for rebuilding overfished stocks and a “no fishing” scenario (F=0). Section 2.4 of the FEIS describes six integrated alternatives including No Action, the Council's FPA, the NMFS preferred alternative, and three other alternatives (including the Council's Preliminary Preferred Alternative, which is similar to the Council's FPA). NMFS finds that the F=0 and Alternatives 1A, 1B, and 2, while resulting in shorter rebuilding times for most of the overfished species, lead to projected major decreases in commercial revenues and recreational activity. Allowing too many communities to suffer commercial or recreational losses greater than 10 percent fails to take into account the needs of fishing communities. Alternative 3, the Council FPA, and NMFS' preferred alternative all reduce the impacts to communities to less than 10 percent, but they differ in their impacts on rebuilding times.

Alternative 3 reduces rebuilding times from status quo for many of the overfished species, but does not reduce the rebuilding time for yelloweye rockfish, and results in only minor reductions for cowcod and darkblotched and rockfish. The Council's FPA improves upon Alternative 3 by reducing the rebuilding time for darkblotched rockfish by two years while maintaining Alternative 3's small positive increases in commercial revenues and recreational activity. The NMFS preferred alternative improves over the Council FPA by further reducing the rebuilding times of cowcod and yelloweye by three years and ten years, respectively. Comparison of the action alternatives with the No Action alternative allows an evaluation of the economic implications to groundfish sectors, ports, and fishing communities; and the interaction of depleted species within the marine ecosystem of reducing ACLs for overfished species to rebuild stocks faster than they would under the rebuilding strategies that NMFS adopted and has modified consistent with new, scientific information on the status and biology of these stocks.

Alternative 2011-2012 groundfish management measures are designed to provide opportunities to harvest healthy target species within the constraints of alternative ACLs for overfished species. The integrated alternatives allow estimation of target species catch under the suite of ACLs for overfished species both to demonstrate if target species ACLs are projected to be exceeded, and to estimate related socioeconomic impacts.

The Council reviewed these analyses and read and heard testimony from Council advisors, fishing industry representatives, representatives from non-governmental organizations, and the general public before deciding the Council's FPA in June 2010. The Council's final preferred management measures are intended to stay within all the final recommended harvest levels for groundfish species decided by the Council at their April and June 2010 meetings. NMFS reviewed these analyses, read and heard testimony from Council advisors, fishing industry representatives, representatives from non-governmental organizations, the general public, and considered legal obligations to comply with a court order (NRDC v. Locke) before deciding NMFS' preferred alternative in February 2011. The NMFS preferred management measures are intended to stay within all the final recommended harvest levels for groundfish species that were part of the NMFS preferred alternative.

NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish PCGFMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the PCGFMP for the Pacific Coast groundfish fishery is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS reinitiated a formal section 7 consultation under the ESA in 2005 for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering reinitiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.

NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 fish from 1991-2005, and has only occasionally exceeded the reinitiation trigger of 11,000 fish. From 2005-2010 the average Chinook bycatch was 4,130 fish, well below the average from 1991-2005. The Chinook ESUs most likely affected by the whiting fishery have generally improved in status since the 1999 section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery.

For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs.

Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

The Southern Distinct Population Segment (DPS) of green sturgeon was listed as threatened under the ESA (71 FR 17757, April 7, 2006). The southern DPS of Pacific eulachon was listed as threatened on March 18, 2010, under the ESA (75 FR 13012). NMFS has reinitiated consultation on the fishery, including impacts on green sturgeon, eulachon, marine mammals, and turtles.

After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action would not jeopardize any listed species, would not adversely modify any designated critical habitat, and would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the PCGFMP. 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. In addition, regulations implementing the PCGFMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the PCGFMP request new allocations or regulations specific to the tribes, in writing, before the first of the two meetings at which the Council considers groundfish management measures. The regulations at 50 CFR 660.324(d) further state “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.”

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing, and Indian fisheries

Dated: September 20, 2011.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be 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., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

2. Revise § 660.40 to read as follows:

§ 660.40

Overfished species rebuilding plans.

For each overfished groundfish stock with an approved rebuilding plan, this section contains the standards to be used to establish annual or biennial ACLs, specifically the target date for rebuilding the stock to its MSY level and the harvest control rule to be used to rebuild the stock. The harvest control rule is expressed as a “Spawning Potential Ratio” or “SPR” harvest rate.

(a) Bocaccio. Bocaccio south of 40°10′ N. latitude was declared overfished in 1999. The target year for rebuilding the bocaccio stock south of 40°10′ N. latitude to B_MSY is 2022. The harvest control rule to be used to rebuild the southern bocaccio stock is an annual SPR harvest rate of 77.7 percent.

(b) Canary rockfish. Canary rockfish was declared overfished in 2000. The target year for rebuilding the canary rockfish stock to B_MSY is 2027. The harvest control rule to be used to rebuild the canary rockfish stock is an annual SPR harvest rate of 88.7 percent.

(c) Cowcod. Cowcod was declared overfished in 2000. The target year for rebuilding the cowcod stock south of 40°10′ N. latitude to B_MSY is 2068. The harvest control rule to be used to rebuild the cowcod stock is an annual SPR harvest rate of 82.7 percent.

(d) Darkblotched rockfish. Darkblotched rockfish was declared overfished in 2000. The target year for rebuilding the darkblotched rockfish stock to B_MSY is 2025. The harvest control rule to be used to rebuild the darkblotched rockfish stock is an annual SPR harvest rate of 64.9 percent.

(e) Pacific Ocean Perch (POP). POP was declared overfished in 1999. The target year for rebuilding the POP stock to B_MSY is 2020. The harvest control rule to be used to rebuild the POP stock is an annual SPR harvest rate of 86.4 percent.

(f) Petrale Sole. Petrale sole was declared overfished in 2010. The target year for rebuilding the petrale sole stock to B_MSY is 2016. The harvest control rule is the 25-5 default adjustment, which corresponds to an annual SPR harvest rate of 32.4 percent in 2012.

(g) Widow rockfish. Widow rockfish was declared overfished in 2001. The target year for rebuilding the widow rockfish stock to B_MSY is 2010. The harvest control rule is a constant catch of 600 mt, which corresponds to an annual SPR harvest rate of 91.3 percent in 2012.

(h) Yelloweye rockfish. Yelloweye rockfish was declared overfished in 2002. The target year for rebuilding the yelloweye rockfish stock to B_MSY is 2074. The harvest control rule to be used to rebuild the yelloweye rockfish stock is an annual SPR harvest rate of 76.0 percent.

3. Revise § 660.50(f)(3) to read as follows:

* * * * *

(f) * * *

(1) * * *

(2) * * *

(3) Lingcod taken in the treaty fisheries are subject to an overall expected total lingcod catch of 250 mt, which is attributable to the stock north of 42° N. latitude.

4. Tables 2a, 2b, and 2d to Part 660, Subpart C are amended to read as follows:

5. In § 660.140 revise paragraph (c)(1), (c)(2), (d)(1)(ii)(D), (d)(4)(i)(C), and (e)(4)(i) to read as follows:

§ 660.140

Shorebased IFQ Program.

* * * * *

(c) * * *

(1) IFQ species. IFQ species are those groundfish species and Pacific halibut in the exclusive economic zone or adjacent state waters off Washington, Oregon and California, under the jurisdiction of the Pacific Fishery Management Council, for which QS and IBQ will be issued. Groupings and area subdivisions for IFQ species are those groupings and area subdivisions for which ACLs or ACTs are specified in the Tables 1a through 2d, subpart C, and those for which there is an area-specific precautionary harvest policy. The lists of individual groundfish species included in the minor shelf complex north of 40°10′ N. lat., minor shelf complex south of 40°10′ N. lat., minor slope complex north 40°10′ N. lat., minor slope complex south of 40°10′ N. lat., and in the other flatfish complex are specified under the definition of “groundfish” at § 660.11. The following are the IFQ species:

Roundfish

Lingcod N of 42°

Lingcod S of 42°

Pacific cod

Pacific whiting

Sablefish N. of 36°

Sablefish S. of 36°

Flatfish

Dover sole

English sole

Petrale sole

Arrowtooth flounder

Starry flounder

Other flatfish stock complex

Pacific halibut (IBQ) N. of 40°10′

Rockfish

Pacific ocean perch N. of 40°10′

Widow rockfish

Canary rockfish

Chilipepper rockfish S. of 40°10′

Bocaccio S of 40°10′

Splitnose rockfish S. of 40°10′

Yellowtail rockfish N. of 40°10′

Shortspine thornyhead N. of 34°27′

Shortspine thornyhead S. of 34°27′

Longspine thornyhead N. of 34°27′

Cowcod S. of 40°10′

Darkblotched rockfish

Yelloweye rockfish

Minor shelf rockfish complex N. of 40°10′

Minor shelf rockfish complex S. of 40°10′

Minor slope rockfish complex N. of 40°10′

Minor slope rockfish complex S. of 40°10′

(2) IFQ Management areas. A vessel participating in the Shorebased IFQ Program may not fish in more than one IFQ management area during a trip. IFQ management areas are as follows:

(i) Between the US/Canada border and 42°N. lat.,

(ii) Between 42°N. lat. and 40°10′ N. lat.,

(iii) Between 40°10′ N. lat. and 36° N. lat.,

(iv) Between 36°N. lat. and 34°27′ N. lat.,

(v) Between 34°27′ N. lat. and the US/Mexico border.

* * * * *

(d) * * *

(1) * * *

(ii) * * *

(D) For the 2012 trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:

IFQ Species	Management area	Shorebased trawl allocation (mt)
Lingcod	North of 42° N. lat	840.00
Lingcod	South of 42° N. lat	970.65
Pacific cod		1,135.00
Pacific Whiting		TBD
Sablefish	North of 36° N. lat	2,467.00
Sablefish	South of 36° N. lat	514.08
Dover sole		22,234.50
English sole		9,542.50
Petrale sole		1,054.60
Arrowtooth flounder		9,462.45
Starry flounder		671.50
Other flatfish		4,197.40
Pacific Ocean perch	North of 40°10′ N. lat	119.50
Widow rockfish		342.62
Canary rockfish		26.60
Chilipepper rockfish	South of 40°10′ N. lat	1,331.25
Bocaccio rockfish	South of 40°10′ N. lat	60.00
Splitnose rockfish	South of 40°10′ N. lat	1,454.45
Yellowtail rockfish	North of 40°10′ N. lat	3,107.36
Shortspine thornyhead	North of 34°27′ N. lat	1,415.45
Shortspine thornyhead	South of 34°27′ N. lat	50.00
Longspine thornyhead	North of 34°27′ N. lat	1,914.00
Cowcod	South of 40°10′ N. lat	1.80
Darkblotched rockfish		248.94
Yelloweye rockfish		0.60
Minor shelf rockfish complex	North of 40°10′ N. lat	522.00
Minor shelf rockfish complex	South of 40°10′ N. lat	86.00
Minor slope rockfish complex	North of 40°10′ N. lat	829.52
Minor slope rockfish complex	South of 40°10′ N. lat	377.37

* * * * *

(4) * * *

(i) * * *

(C) The Shorebased IFQ program accumulation limits are as follows:

Species category	QS and IBQ control limit (in percent)
Non-whiting groundfish species	2.7
Lingcod—N. of 42°	2.5
Lingcod—S. of 42°	2.5
Pacific cod	12.0
Pacific whiting (shoreside)	10.0
Sablefish
N. of 36° (Monterey north)	3.0
S. of 36° (Conception area)	10.0
Pacific ocean perch N. of 40°10′	4.0
Widow rockfish	5.1
Canary rockfish	4.4
Chilipepper rockfish S. of 40°10′	10.0
Bocaccio S. of 40°10′	13.2
Splitnose rockfish S. of 40°10′	10.0
Yellowtail rockfish N. of 40°10′	5.0
Shortspine thornyhead:
N. of 34°27′	6.0
S. of 34°27′	6.0
Longspine thornyhead:
N. of 34°27′	6.0
Cowcod S. of 40°10′	17.7
Darkblotched rockfish	4.5
Yelloweye rockfish	5.7
Minor rockfish complex N. of 40°10′:
Shelf species	5.0
Slope species	5.0
Minor rockfish complex S. of 40°10′:
Shelf species	9.0
Slope species	6.0
Dover sole	2.6
English sole	5.0
Petrale sole	3.0
Arrowtooth flounder	10.0
Starry flounder	10.0
Other flatfish stock complex	10.0
Pacific halibut (IBQ) N. of 40°10′	5.4

* * * * *

(e) * * *

(4) * * *

(i) Vessel limits. Vessel accounts may not have QP or IBQ pounds in excess of the QP Vessel Limit in any year, and, for species covered by Unused QP Vessel Limits, may not have QP or IBQ pounds in excess of the Unused QP Vessel Limit at any time. These amounts are as follows:

Species category	QP vessel limit (annual limit) (in percent)	Unused QP vessel limit (daily limit) (in percent)
Non-whiting groundfish species	3.2
Lingcod—N of 42°	3.8
Lingcod—S of 42°	3.8
Pacific cod	20.0
Pacific whiting (shoreside)	15.0
Sablefish:
N. of 36° (Monterey north)	4.5
S. of 36° (Conception area)	15.0
Pacific ocean perch N. of 40°10′	6.0	4.0
Widow rockfish 1	8.5	5.1
Canary rockfish	10.0	4.4
Chilipepper rockfish S. of 40°10′	15.0
Bocaccio S. of 40°10′	15.4	13.2
Splitnose rockfish S. of 40°10′	15.0
Yellowtail rockfish N. of 40°10′	7.5
Shortspine thornyhead:
N. of 34°27′	9.0
S. of 34°27′	9.0
Longspine thornyhead:
N. of 34°27′	9.0
Cowcod S. of 40°10′	17.7	17.7
Darkblotched rockfish	6.8	4.5
Yelloweye rockfish	11.4	5.7
Minor rockfish complex N. of 40°10′:
Shelf species	7.5
Slope species	7.5
Minor rockfish complex S. of 40°10′:
Shelf species	13.5
Slope species	9.0
Dover sole	3.9
English sole	7.5
Petrale sole	4.5
Arrowtooth flounder	20.0
Starry flounder	20.0
Other flatfish stock complex	15.0
Pacific halibut (IBQ) N. of 40°10′	14.4	5.4
1 If widow rockfish is rebuilt before initial allocation of QS, the vessel limit will be set at 1.5 times the control limit.

* * * * *

6. In § 660.231 paragraph (b)(3)(i) is revised to read as follows:

§ 660.231

Limited entry fixed gear sablefish primary fishery.

* * * * *

(b) * * *

(3) Cumulative limits.

(i) A vessel participating in the primary season will be constrained by the sablefish cumulative limit associated with each of the permits registered for use with that vessel. During the primary season, each vessel authorized to fish in that season under paragraph (a) of this section may take, retain, possess, and land sablefish, up to the cumulative limits for each of the permits registered for use with that vessel (i.e., stacked permits). If multiple limited entry permits with sablefish endorsements are registered for use with a single vessel, that vessel may land up to the total of all cumulative limits announced in this paragraph for the tiers for those permits, except as limited by paragraph (b)(3)(ii) of this section. Up to 3 permits may be registered for use with a single vessel during the primary season; thus, a single vessel may not take and retain, possess or land more than 3 primary season sablefish cumulative limits in any one year. A vessel registered for use with multiple limited entry permits is subject to per vessel limits for species other than sablefish, and to per vessel limits when participating in the daily trip limit fishery for sablefish under § 660.232, subpart E. In 2011, the following annual limits are in effect: Tier 1 at 47,697 lb (21,635 kg), Tier 2 at 21,680 lb (9,834 kg), and Tier 3 at 12,389 lb (5,620kg). For 2012 and beyond, the following annual limits are in effect: Tier 1 at 46,238 lb (21,017 kg), Tier 2 at 21,017 lb (9553 kg), and Tier 3 at 12,010 lb (5,459 kg).

* * * * *