E8-16986. Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Inseason Adjustments

AGENCY:

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

ACTION:

Final rule; inseason adjustments to biennial groundfish management measures; request for comments.

SUMMARY:

This final rule announces inseason changes to management measures in the commercial Pacific Coast groundfish fisheries. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.

DATES:

Effective 0001 hours (local time) August 1, 2008. Comments on this final rule must be received no later than 5 p.m., local time on August 25, 2008.

ADDRESSES:

You may submit comments, identified by RIN 0648-AX02 by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
• Fax: [phone], Attn: Gretchen Arentzen
• Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen.

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

NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Gretchen Arentzen (Northwest Region, NMFS), phone: [phone], fax: [phone] and e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

This final rule is accessible via the Internet at the Office of the Federal Register's Website at http://www.gpoaccess.gov/​fr/​index.html. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/​.

Background

The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS. A proposed rule to implement the 2007-2008 specifications and management measures for the Pacific Coast groundfish fishery and Amendment 16-4 of the FMP was published on September 29, 2006 (71 FR 57764). The final rule to implement the 2007-2008 specifications and management measures for the Pacific Coast Groundfish Fishery was published on December 29, 2006 (71 FR 78638). These specifications and management measures are codified in the CFR (50 CFR part 660, subpart G). The final rule was subsequently amended on: March 20, 2007 (71 FR 13043); April 18, 2007 (72 FR 19390); July 5, 2007 (72 FR 36617); August 3, 2007 (72 FR 43193); September 18, 2007 (72 FR 53165); October 4, 2007 (72 FR 56664); December 4, 2007 (72 FR 68097); December 18, 2007 (72 FR 71583); and April 18, 2008 (73 FR 21057).

Changes to current groundfish management measures implemented by this action were recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its June 6-13, 2008, meeting in Foster City, California. The Council recommended adjustments to current groundfish management measures to respond to updated fishery information and other inseason management needs. This action is not expected to result in greater impacts to overfished species than originally projected at the beginning of 2008. Estimated mortality of overfished and target species are the result of management measures designed to meet the Pacific Coast Groundfish FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species, while fostering the rebuilding of depleted stocks by remaining within their rebuilding OYs.

Limited Entry Non-Whiting Trawl Fishery Management Measures

At its June 2008 meeting, the Council received new data and analyses on the catch of groundfish in the limited entry trawl fishery. The Council's recommendations for revising 2008 trawl fishery management measures provide additional harvest opportunities in some areas for target species with catches tracking behind projections, and lower trip limits to prevent exceeding the 2008 optimum yield (OY) for petrale sole.

Catches of several trawl target species have been tracking behind 2008 projections made at the Council's March 2008 meeting, or are projected to come in below the 2008 OYs if no adjustments to RCAs or cumulative limits are made. The Council considered the most recently available data from the Pacific Fishery Information Network (PacFIN) at their June 6-13, 2008 meeting. These data, dated May 30, 2008, indicated that: 571 mt of the 2,810 mt sablefish allocation in the limited entry trawl fishery had been taken; 4,776 mt of the 16,500 mt Dover sole OY had been taken; and 342 mt of the 4,884 mt other flatfish OY had been taken. North of 40°10.00′ N. lat., increases in trip limits were analyzed for some species for vessels using large footrope trawl gear because available data and anecdotal information from industry indicated that the distribution of some target species, particularly Dover sole, has been shifting from areas seaward of the RCA towards the shore, making them less available to trawlers seaward of the RCA. North of 40°10.00' N. lat., increases in trip limits were also analyzed for some species for vessels using selective flatfish trawl gear. The shoreward boundary of the RCA off Washington, southern Oregon, and northern California was shifted shoreward to a boundary line approximating the 60-fm (110-m) depth contour in April 2008 to reduce impacts on canary rockfish. This fathom restriction, while protecting canary rockfish, was also expected to restrict access to target species that occur between the boundary line approximating the 60-fm (110-m) depth contour and the boundary line approximating the 75-fm (137-m) depth contour, particularly for vessels that rely heavily on fishing in areas shoreward of the RCA in those areas. Increases for target species opportunities for vessels using selective flatfish trawl gear are limited by the need to keep canary rockfish impacts within the 2008 canary rockfish OY. A modest increase in trip limits for other flatfish, Dover sole, and sablefish, taken with selective flatfish trawl gear, can be accommodated when the shoreward boundary of the RCA is maintained at a line approximating the 60-fm (110-m) depth contour off Washington, southern Oregon, and northern California, and cumulative trip limits for petrale sole are simultaneously reduced. South of 40°10.00' N. lat., catches of some target species have also been tracking behind projections, however, as in the North, only modest increases in the sablefish limits were considered due to the potential effect on canary rockfish.

Many cumulative trip limits are established for two-month periods. A two-month limit can be raised in the middle of the period, but a two-month limit cannot be effectively lowered in the middle of a period because the fishers could take the prior, higher, trip limit before the inseason change could go into effect. Therefore, increases are becoming effective during the two-month cumulative limit, on August 1, and decreases will go into effect September 1, the start of a two-month period.

Based on these analyses above, the Council recommended and NMFS is implementing an increase in the limited entry trawl fishery cumulative limits coastwide: for sablefish taken with large footrope gear from “19,000 lb (8,618 kg) per two months” to “24,000 lb (10,886 kg) per two months” from August 1 through October 31; for sablefish taken with large footrope gear from “14,000 lb (6,350 kg) per two months” to “19,000 lb (8,618 kg) per two months” from November 1 through December 31. Based on these analyses above, the Council recommended and NMFS is implementing an increase in the limited entry trawl fishery cumulative limits north of 40°10.00' N. lat.: for sablefish taken with selective flatfish trawl gear from “5,000 lb (2,268 kg) per two months” to “7,000 lb (3,175 kg) per two months” from August 1 through December 31; for Dover sole taken with selective flatfish trawl gear from “40,000 lb (18,144 kg) per two months” to “50,000 lb (22,680 kg) per two months” from August 1 through December 31; and for other flatfish taken with selective flatfish trawl gear from “50,000 lb (22,680 kg) per two months” to “80,000 lb (36,287 kg) per two months” from August 1 through December 31.

Catches of petrale sole in the limited entry trawl fishery are tracking ahead of projections. Approximately 40 percent of the 2008 petrale sole OY was taken during the months of January and February, and most of this catch was taken north of 40°10.00' N. lat. If no action were taken, and petrale sole catch rates remain higher than previously expected throughout the year, total coastwide catch of petrale sole through the end of the year is projected to be 2,561 mt, exceeding the 2008 coastwide petrale sole OY of 2,499 mt by 62 mt. 2007-2008 management measures were designed to encourage targeting of petrale sole seaward of the RCA in winter months (January-February and November-December), and to allow nearshore opportunities the remainder of the year in the nearshore area using selective flatfish trawl gear. This is because petrale sole congregate in deeper waters in the winter, making it more efficient to target, and resulting in less bycatch than in non-winter months (March-October). In winter months the seaward boundary line of the RCA is modified to keep areas of known petrale abundance open for fishing and the petrale sole trip limits for large footrope trawl gear are highest in these months (“40,000 lb (18,144 kg) per two months”). For selective flatfish trawl gear, petrale sole limits are highest in non-winter months (“18,000 lb (8,165 kg) per two months”). Therefore, trip limit reductions to slow the catch of petrale sole using large footrope gear would be most effective during winter months, and trip limit reductions using selective flatfish trawl gear would be most effective in non-winter months. Therefore, to slow catch of petrale sole and stay below the 2008 petrale sole OY, the Council considered reducing petrale sole cumulative limits for vessels using large footrope trawl gear in November-December and for vessels using selective flatfish trawl gear in September-October.

Based on these analyses above, the Council recommended and NMFS is implementing a decrease in the limited entry trawl fishery cumulative limits for petrale sole north of 40°10.00' N. lat.: for large footrope trawl gear from “40,000 lb (18,144 kg) per two months” to “30,000 lb (13,608 kg) per two months” from November 1 through December 31; and for selective flatfish trawl gear from “18,000 lb (8,165 kg) per two months” to “16,000 lb (7,258 kg) per two months” from September 1 through October 31.

If a vessel has both selective flatfish gear and large or small footrope gear on board during a cumulative limit period (either simultaneously or successively), the most restrictive cumulative limit for any gear on board during the cumulative limit period applies for the entire cumulative limit period. Therefore the trip limits for multiple trawl gear are modified for consistency with adjustments in trip limits for the above listed species and gears.

Limited Entry Fixed Gear Sablefish Daily Trip Limit Fishery

The Council considered an industry request to increase the limited entry fixed gear sablefish daily trip limit (DTL) fishery's daily trip limit north of 36° N. lat. The increase in the daily limit was requested to help industry members offset the increased cost of fuel on a per trip basis, without having a large increase in the overall sablefish catches, by leaving the weekly and bimonthly limits at 1,000 lb and 5,000 lb, respectively. The catch of sablefish in the limited entry DTL fishery north of 36° N. lat. has come in below the allocation over the last several years. This fishery caught 40 percent of their 2005 allocation, 38 percent of their 2006 allocation and 42 percent of their 2007 allocation. During that time catch limits have remained fairly constant and the Council's Groundfish Management Team (GMT) projected that, without any inseason adjustment, catches in the fishery would be below the limited entry fixed gear DTL allocation of sablefish. In the limited entry fishery, a change in the daily limit would have a far lesser effect on effort shifts than in the open access sablefish DTL fishery, due to the limited number of participants. Participation in the limited entry fixed gear sablefish DTL fishery is restricted because of the limited number of Federal limited entry fixed gear permits. No increases in the limited entry fixed gear sablefish DTL fishery south of 36° N. lat. were considered, as catches of sablefish in this area are very close to the projected catch at this time.

Based on the analyses above, the Council recommended and NMFS is implementing an increase in the daily limit in the limited entry fixed gear sablefish DTL fishery north of 36° N. lat.: from “300 lb (136 kg) per day, or one landing per week of up to 1,000 lb (454 kg), not to exceed 5,000 lb (2,268 kg) per two months” to “500 lb (227 kg) per day, or one landing per week of up to 1,000 lb (454 kg), not to exceed 5,000 lb (2,268 kg) per two months” from August 1 through December 31.

Open Access Sablefish Daily Trip Limit Fishery

The Council discussed reducing the sablefish daily trip limit (DTL) fishery's cumulative limit in the Conception area south of 36° N. lat. The most recently available data from the PacFIN, dated May 30, 2008, indicates that the catch of sablefish in this fishery from January through the end of April was higher than expected. The Council considered catches of sablefish in the open access fishery south of 36° N. lat. in the beginning of 2008 and compared them to the catches of sablefish in this fishery in recent years. In 2006, catches of sablefish from January to April totaled approximately 12,000 pounds. Late in the year, large effort shifts from the northern closed area and a poor salmon fishery forced reductions in the daily limit and an introduction of a 2 month cumulative limit of 3,000 lb (1,361 kg) per month in December 2006 in order to stay within the 2006 sablefish OY in this area (71 FR 69076, November 29, 2006). For 2007, trip limits were reduced from 2006 as a precautionary adjustment to keep sablefish within the 2007 OY. In 2007, catches of sablefish from January to April totaled approximately 33,000 pounds. In July 2007, catches were tracking below projections and the daily and weekly trip limits were moderately increased to allow access to the available sablefish. In 2008, catches of sablefish from January to April totaled approximately 64,000 pounds. The salmon fishery in 2008 is severely constrained off the coasts of Oregon and California, which is likely driving a large influx of fishing effort into the open access sablefish DTL fishery. Under the current daily and weekly limits of “300 lb (136 kg) per day, or one landing per week of up to 700 lb (318 kg),” a large increase in the number of open access sablefish DTL fishery participants could cause an early attainment of the open access sablefish allocation, and risk exceeding the 2008 sablefish OY if no mitigation measures are implemented. The Council's Groundfish Fishery Management Team (GMT) projected that if the higher than projected catch rate continues through the summer months the 2008 sablefish OY will be reached in October, forcing closure of sablefish fishing coastwide, as well as closure of other target species fishing opportunities where sablefish are caught, such as thornyheads and slope rockfish.

Only a minimal amount of hook-and-line or pot fishing gear is needed to participate in the sablefish DTL fishery, increasing the likelihood of fishers moving into this fishery. The 2008 salmon season is more restricted than it was in 2006. If the sablefish allocation were reached, the fishery would need to be closed, as it was in October 2006.

Though the open access sablefish DTL fishery could provide fishing opportunity for displaced salmon fishers, the necessary reductions in trip limits would likely have a large effect on fishers who have historically participated in the sablefish fishery. However, decreasing the sablefish catch rates on August 1 is predicted to result in a longer season, which would benefit fishers who have historically participated in the year-round fishery. It would also promote 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.

At their June 6-13, 2008 meeting, the Council considered industry comments that further reductions in the daily limit would jeopardize the viability of the fishery, due to rising fuel costs, and the GMT analysis indicated that reductions in weekly limits would not affect overall sablefish catch. Therefore, the Council considered implementing a monthly or bi-monthly cumulative limit in the open access sablefish DTL fishery south of 36° N. lat. to reduce sablefish catches and keep the fishery within their 2008 sablefish allocation. Assuming that the current sablefish catch rate continues, the GMT estimated that implementing a bimonthly limit of 2,100 lb (953 kg) per two months would bring the projected catch of sablefish in this fishery back down to expected levels.

Implementation of, or reductions to, a bimonthly limit must occur at the start of a cumulative limit period, which corresponds to either July 1 or September 1, 2008. There was not sufficient time after the June 6-13 meeting to implement a bimonthly limit by July 1, therefore the Pacific Council also recommended implementing a monthly cumulative limit for the month of August to slow the sablefish catch in the open access sablefish as quickly as possible. The Pacific Council will continue to monitor catches in the open access sablefish DTL fishery as new data from the fishery are available.

Based on the analyses above, the Pacific Council recommended and NMFS is implementing the following cumulative limits in the open access DTL fishery for sablefish south of 36° N. lat.: from “300 lb (136 kg) per day, or one landing per week of up to 700 lb (318 kg)” to “300 lb (136 kg) per day, or one landing per week of up to 700 lb (318 kg), not to exceed 1,000 lb (454 kg) per month” from August 1 through August 31; and from “300 lb (136 kg) per day, or one landing per week of up to 700 lb (318 kg)” to “300 lb (136 kg) per day, or one landing per week of up to 700 lb (318 kg), not to exceed 2,100 lb (953 kg) per two months”, beginning September 1 through December 31.

Classification

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

These actions are taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and are in accordance with 50 CFR part 660, the regulations implementing the FMP. These actions are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see ADDRESSES) during business hours.

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to the 2008 groundfish management measures under 5 U.S.C. 553(b)(B) because notice and comment would be impracticable and contrary to the public interest. Also for the same reasons, NMFS finds good cause to waive part of the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective August 1, 2008.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its June 6-13, 2008, meeting in Foster City, California. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent the Agency from managing fisheries using the best available science by approaching without exceeding the OYs for federally managed species. The adjustments to management measures in this document affect: limited entry commercial trawl and fixed gear fisheries off Washington, Oregon, and California and open access fisheries off California, south of 36° N. lat. These adjustments to management measures must be implemented in a timely manner, by August 1, 2008, to: allow fishermen an opportunity to harvest higher trip limits for stocks with catch tracking behind their projected 2008 catch levels; prevent exceeding the 2008 OYs for petrale sole and sablefish; and prevent premature closure of fisheries.

Changes to the cumulative limits in the limited entry trawl fishery are needed to relieve a restriction by allowing fishermen increased opportunities to harvest available healthy stocks. Changes are also needed for petrale sole to reduce catches to keep harvest within the 2008 OY. Changes to trip limits in the limited entry trawl fishery for sablefish, Dover sole, and other flatfish are needed to relieve a restriction and to allow fisheries to approach, but not exceed, the 2008 OY for these species and must be implemented in a timely manner by August 1, 2008, so that fishermen are allowed increased opportunities to harvest available healthy stocks and meet the objective of the Pacific Coast Groundfish FMP to allow fisheries to approach, but not exceed, OYs. It would be contrary to the public interest to wait to implement these changes until after public notice and comment, because making this regulatory change by August 1 relieves a regulatory restriction for fisheries that are important to coastal communities. Changes to cumulative limits in the limited entry trawl fishery for petrale sole must be implemented in a timely manner by September 1, 2008, to prevent the 2008 petrale sole OY from being exceeded and prevent premature closure of fisheries that take petrale sole.

Changes to trip limits in the limited entry fixed gear sablefish DTL fishery are needed to relieve a restriction and to allow fisheries to approach, but not exceed, the 2008 sablefish OY and must be implemented in a timely manner by August 1, 2008, so that fishermen are allowed increased opportunities to harvest available healthy stocks and meet the objective of the Pacific Coast Groundfish FMP to allow fisheries to approach, but not exceed, OYs. Failing to increase the daily limit for sablefish in a timely manner would result in unnecessary restriction of fisheries that are important to coastal communities and is therefore contrary to the public interest.

Implementation of monthly and bi-monthly cumulative limits in the open access sablefish DTL fishery are needed to prevent the 2008 sablefish OY from being exceeded and prevent premature closure of fisheries that take sablefish. These changes must be implemented in a timely manner by August 1, 2008. Failure to implement trip limit restrictions would risk premature closure of fisheries that are important to coastal communities, which would fail to meet the objectives of the Pacific Coast Groundfish FMP to allow for year round fishing opportunities to provide community stability.

These revisions are needed to keep the harvest of groundfish species within the harvest levels projected for 2008, while allowing fishermen access to healthy stocks. Without these measures in place, the fisheries could risk exceeding harvest levels, causing early and unanticipated fishery closures and economic harm to fishing communities. Delaying these changes would keep management measures in place that are not based on the best available data and that could lead to early closures of the fishery if harvest of groundfish exceeds levels projected for 2008. Such delay 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.

List of Subjects in 50 CFR Part 660

• Fishing
• Fisheries, and Indian Fisheries

Dated: July 18, 2008.

Emily H. Menashes,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

PART 660—FISHERIES OFF WEST COAST STATES

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

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

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