Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2010 Harvest Specifications for Yelloweye Rockfish and In-Season Adjustments to Fishery Management Measures

AGENCY:

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

ACTION:

Final rule; in-season adjustments to biennial groundfish management measures; request for comments.

SUMMARY:

This final rule revises the 2010 harvest guidelines for yelloweye rockfish and makes in-season adjustments to trawl fishery management measures for several groundfish species taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to prevent exceeding the 2010 OYs for yelloweye rockfish, an overfished species, and for petrale sole and sablefish.

DATES:

Effective July 1, 2010. Comments on this final rule must be received no later than 5 p.m., local time on August 2, 2010.

ADDRESSES:

You may submit comments, identified by RIN 0648-BA00, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov.
• Fax: 206-526-6736, Attn: Gretchen Hanshew.
• Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070, Attn: Gretchen Hanshew.

Instructions: No comments will be posted for public viewing until after the comment period has closed. 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 (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Gretchen Hanshew (Northwest Region, NMFS), 206-526-6147, fax: 206-526-6736, gretchen.hanshew@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

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

Background

On December 31, 2008, NMFS published a proposed rule to implement the 2009-2010 specifications and management measures for the Pacific Coast groundfish fishery (73 FR 80516). A final rule was published on March 6, 2009 (74 FR 9874), which codified the specifications and management measures in the CFR (50 CFR part 660, subpart G). That action set the 2009-2010 harvest specifications and management measures for groundfish taken in the U.S. exclusive zone (EEZ) off the coasts of Washington, Oregon, and California, and revised rebuilding plans for four of seven overfished species, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Pacific Coast Groundfish Fishery Management Plan (FMP).

2010 Yelloweye Rockfish Harvest Specifications

In response to the latest in a series of complaints filed in Natural Resources Defense Council v. Locke, Civil Action No. C 01-0421 JL, challenging the rebuilding provisions in the FMP, the U.S. District Court for the Northern District of California vacated the 2010 Specifications for darkblotched rockfish, cowcod, and yelloweye rockfish. Order Granting in Part and Denying in Part Parties' Cross-Motions for Summary Judgment, Dkt. No. 340 (April 23, 2010) (Opinion). The Order lowered the 2010 yelloweye rockfish OY. NMFS is issuing a final rule to amend the regulatory requirements for yelloweye rockfish in accordance with the court's order, lowering the 2010 yelloweye rockfish OY from 17 mt to 14 mt. In the preamble to that rule, NMFS described that the Pacific Fishery Management Council (Council), through its in-season management process, would review the anticipated catch of yelloweye rockfish and recommend to the agency the appropriate management measures, including modifications to set asides or harvest guidelines (HGs), to manage the fishery within these OY levels. This rule makes those changes based on the information considered below.

At the time that the Order established a 14 mt yelloweye rockfish OY, projected impacts to yelloweye rockfish was 17.0 mt. In an effort to reduce the severe fisheries restrictions that would be necessary to keep total mortality below the 14 mt OY, the states of Washington and Oregon cancelled a 2010 scientific research study that was intended to collect important biological information on yelloweye rockfish. The cancellation of this enhanced rockfish survey reduced projected impacts to yelloweye rockfish by 2.0 mt, resulting in total projected impacts of 15 mt for a 14 mt OY.

NMFS also took action to reduce projected impacts to yelloweye rockfish by cancelling two exempted fishing permits (EFPs) that were scheduled to be issued in 2010. The cancellation of these two EFPs, and the resulting reduction in exempted fishing effort, reduced yelloweye rockfish impacts by 0.1 mt, resulting in total projected impacts of 14.9 mt for a 14 mt OY.

The limited entry trawl fishery model projects impacts to overfished species. Prior to the June Council meeting, the model was updated by incorporating the most recent (2009) west coast groundfish observer program (WCGOP) data. According to the 2009 WCGOP data, the bycatch rate of yelloweye rockfish was lower than previously thought, therefore the impacts to yelloweye rockfish in 2010 are projected to be lower than previously estimated. Updating the model, while leaving management measures unchanged, reduced projected impacts to yelloweye rockfish by 0.3 mt, resulting in total projected impacts of 14.6 mt for a 14 mt OY.

At their June 11-17, 2010, meeting in Foster City, CA, the Council reviewed the most recent catch data in all groundfish fisheries and considered various ways to reduce projected impacts of yelloweye rockfish to a level at or below the 14 mt OY. Based on the most recent fishery data, projected catches of yelloweye rockfish in the limited entry fixed gear (LEFG) and open access fisheries are lower than anticipated due to inclement weather and lower than anticipated fishing effort on target species that co-occur with yelloweye rockfish. Because their projected impacts to yelloweye rockfish in the commercial fixed gear fisheries are lower than anticipated, the Council recommended reducing the catch sharing harvest guidelines in these sectors to a combined total of 2.0 mt, with 0.8 mt of yelloweye rockfish anticipated to be taken in the LEFG fishery and 1.2 mt of yelloweye rockfish anticipated to be taken in the directed open access fishery. This will allow for minimal disruption to summer fisheries, as no additional restrictions to fishery management measures are necessary at this time to stay below this lower HG. The states of Washington, Oregon and California already have management measures in place to keep projected impacts within their yelloweye rockfish HGs (Washington = 2.7 mt, Oregon = 2.4 mt, California = 2.8 mt). Because of the cancellation of the enhanced rockfish research survey activities and the savings it provided relative to yelloweye rockfish, recreational harvest guidelines for each state only had to be lowered by a small amount. The Council recommended reducing each state's harvest guidelines by 0.1 mt, resulting in new yelloweye rockfish HGs (Washington = 2.6 mt, Oregon = 2.3 mt, California = 2.7 mt). No additional restrictions to management measures were necessary at this time to keep projected impacts in recreational fisheries below these new HGs. As a result of the changes to the limited entry fixed gear, directed open access, and recreational fishery HGs, projected impacts to yelloweye rockfish were lowered by 0.5 mt, resulting in total projected impacts of 14.1 mt out for a 14 mt OY.

The Council also considered reducing the yelloweye rockfish bycatch caps for the remaining EFP projects. If no changes to bycatch caps were made, the projected impacts to yelloweye rockfish, if all of the EFPs caught their entire yelloweye rockfish bycatch caps, would be 0.3 mt. One EFP holder proposed to voluntarily reduce the 2010 yelloweye rockfish bycatch cap for his project by 50 percent, because no yelloweye rockfish were caught in their EFP activities in 2009. The Council agreed and recommended that the bycatch cap for that EFP project be lowered from 0.2 mt to 0.1 mt. Changing the bycatch cap on this EFP project lowers impacts to yelloweye rockfish by 0.1 mt, resulting in total projected impacts to yelloweye rockfish of 14.0 mt out of a 14 mt OY.

Based on the most recent fishery information, no additional changes to management measures are necessary to keep total projected impacts below the 2010 yelloweye rockfish OY of 14 mt at this time. The Council and NMFS will continue to monitor the most recent available fisheries information throughout the year and may make changes to management measures, if necessary, to keep projected impacts of yelloweye rockfish below the 2010 yelloweye rockfish OY of 14 mt.

Limited Entry Non-Whiting Trawl Fishery Management Measures

The final rule to implement the 2009-2010 specifications and management measures for the Pacific Coast Groundfish Fishery was published on March 6, 2009 (74 FR 9874). This final rule was subsequently amended by inseason actions on April 27, 2009 (74 FR 19011), July 6, 2009 (74 FR 31874), October 28, 2009 (74 FR 55468), February 26, 2010 (75 FR 8820), and May 4, 2010 (75 FR 23620). Additional changes to the 2009-2010 specifications and management measures for petrale sole were made in two final rules: On November 4, 2009 (74 FR 57117), and December 10, 2009 (74 FR 65480). NMFS is issuing a final rule that will make additional changes in response to the duly issued court order (see 2010 Yelloweye Rockfish Harvest Specifications). These specifications and management measures are at 50 CFR part 660, subpart G.

Changes to the 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 11-17, 2010, meeting in Foster City, CA. The Council recommended adjusting the groundfish management measures to respond to updated fishery information and other in-season management needs. These changes include reductions to bi-monthly cumulative limits in the limited entry non-whiting trawl commercial fisheries off Washington, Oregon, and California. These reductions to trip limits must be implemented by the start of the next bi-monthly cumulative limit period, on or before July 1, 2010. Even a short delay in implementation could allow fisheries to take the entire two-month limit for this period. These changes are intended to reduce the catch of petrale sole and sablefish in order to keep the total mortality of these species within their 2010 OYs. The reductions to trip limits also slightly reduce the projected impacts to co-occurring overfished species.

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 overfished stocks by remaining within their rebuilding OYs.

Catches of sablefish in the limited entry non-whiting trawl fishery are tracking ahead of projections. If no action is taken, and sablefish catch rates remain higher than previously expected throughout the year, catch of sablefish through the end of the year is projected to be 3,003 mt, exceeding the 2010 trawl allocation of 2,995 mt by 48 mt. To slow catch of sablefish and stay below the 2010 allocation, the Council recommended an in-season adjustment reducing cumulative limits for sablefish as well as other co-occurring target species (Dover sole) coastwide, beginning on July 1, 2010.

Catches of petrale sole in the limited entry non-whiting trawl fishery are also tracking ahead of projections. If no action is 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 1,289 mt, exceeding the 2010 coastwide petrale sole OY of 1,200 mt by 89 mt. To slow catch of petrale sole and stay below the 2010 petrale sole OY, the Council recommended an in-season adjustment reducing cumulative limits for petrale sole as well as other co-occurring target species (Dover sole and “other flatfish”) coastwide, beginning on July 1, 2010.

Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to cumulative limits in the limited entry non-whiting trawl fishery for July 1, 2010: reduce sablefish cumulative limits caught with large and small footrope trawl gears coastwide to “21,000 lb (9,525 kg) per 2 months” in July-December; reduce petrale sole cumulative limits caught with large and small footrope trawl gears coastwide to “6,300 lb (2,858 kg) per 2 months” in July-December; reduce Dover sole cumulative limits caught with large and small footrope trawl gears coastwide to “100,000 lb (45,359 kg) per 2 months” in July-December; and reduce “other flatfish” cumulative limits caught with large and small footrope trawl gears coastwide to “100,000 lb (45,359 kg) per 2 months” in July-December.

Classification

This rule revises the 2010 catch sharing harvest guidelines for yelloweye rockfish to keep fishery impacts within the lowered yelloweye rockfish OY in accordance with the court's order; makes routine in-season adjustments to groundfish fishery management measures based on the best available information; and is taken pursuant to the regulations implementing the Pacific Coast Groundfish FMP.

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

These in-season adjustments 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 groundfish management measures under 5 U.S.C. 553(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 the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective as quickly as possible.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its June 11-17, 2010, meeting in Foster City, CA. The Council recommended that these changes be implemented on or as close as possible to July 1, 2010. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. 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 to approach, without exceeding, the OYs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California.

These adjustments to management measures must be implemented in a timely manner to prevent 2010 OYs from being exceeded or to prevent premature closure of the fishery. Decreases to bi-monthly cumulative limits for sablefish, petrale sole, Dover sole, and other flatfish in the limited entry trawl fishery are intended to prevent exceeding the 2010 OYs for these species and co-occurring species, and prevent premature closure of fisheries that impact these species. These changes must be implemented in a timely manner, on July 1, 2010. Bi-monthly cumulative limits cover a two-month period, so if implementation is delayed much past July 1, then fishermen could harvest the prior higher limit before the revised limit is effective. Decreases to cumulative limits for other flatfish and Dover sole in the limited entry trawl fishery are intended to reduce impacts to petrale sole, a co-occurring species for which a severely reduced OY was implemented for 2010 (74 FR 65480).

Delaying these changes would keep management measures in place that are not based on the best available data, which could lead to exceeding OYs or early closures of the fishery if harvest of groundfish exceeds levels projected for 2010. Such delay would impair achievement of the Pacific Coast Groundfish FMP objective of approaching, but not exceeding, OYs.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indian Fisheries

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. Footnote “/aa” following Tables 1a through 1c to part 660, subpart G, is revised to read as follows:

aa/ Yelloweye rockfish was fully assessed in 2006 and an assessment update was completed in 2007. The 2007 stock assessment update estimated the spawning stock biomass in 2006 to be at 14 percent of its unfished biomass coastwide. The 31 mt coastwide ABC was derived from the base model in the new stock assessment with an F_MSY proxy of F₅₀%. The 17 mt OY is based on a rebuilding plan with a target year to rebuild of 2084 and an SPR harvest rate of 66.3 percent in 2009 and 2010 and an SPR harvest rate of 71.9 percent for 2011 and beyond. The OY is reduced by 2.8 mt for the amount anticipated to be taken during research activity, 2.3 mt the amount estimated to be taken in the tribal fisheries and 0.3 mt for the amount expected to be taken incidentally in non-groundfish fisheries. The catch sharing harvest guidelines for yelloweye rockfish in 2009 are: limited entry non-whiting trawl 0.6 mt, limited entry whiting 0.0 mt, limited entry fixed gear 1.4 mt, directed open access 1.1 mt, Washington recreational 2.7 mt, Oregon recreational 2.4 mt, California recreational 2.8 mt, and 0.3 mt for exempted fishing.

3. Table 2a to part 660, subpart G, and footnote “/aa” following Tables 2a through 2c to part 660, subpart G, are revised to read as follows:

aa/ Yelloweye rockfish was fully assessed in 2006 and an assessment update was completed in 2007. The 2007 stock assessment update estimated the spawning stock biomass in 2006 to be at 14 percent of its unfished biomass coastwide. The 32 mt coastwide ABC was derived from the base model in the new stock assessment with an F_MSY proxy of F₅₀%. The 14 mt OY is based on the need to conform the 2010 yelloweye rockfish harvest specifications to the Court's Order in Natural Resources Defense Council v. Locke, Civil Action No. C 01-0421 JL. The amount anticipated to be taken during scientific research activity is 1.3 mt, the amount anticipated to be taken in the tribal fisheries is 2.3 mt, and the amount anticipated to be taken incidentally in non-groundfish fisheries is 0.3 mt. The catch sharing harvest guidelines for yelloweye rockfish in 2010 are: Limited entry non-whiting trawl 0.3 mt, limited entry whiting 0.0 mt, limited entry fixed gear 0.8 mt, directed open access 1.2 mt, Washington recreational 2.6 mt, Oregon recreational 2.3 mt, California recreational 2.7 mt, and 0.2 mt for exempted fishing.

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