[Federal Register Volume 69, Number 124 (Tuesday, June 29, 2004)]
[Rules and Regulations]
[Pages 38857-38859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14717]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 031216314-3314-01; I.D. 062304A]


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Annual Specifications and Management 
Measures; Inseason Adjustments

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

ACTION: Inseason adjustments to management measures; request for 
comments.

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SUMMARY: NMFS announces changes to the commercial limited entry fixed 
gear primary season sablefish tier limits for the Pacific Coast 
groundfish fishery. These actions, which are authorized by the Pacific 
Coast Groundfish Fishery Management Plan (FMP), will allow fisheries to 
access more abundant groundfish stocks while protecting overfished and 
depleted stocks.

DATES: Effective 0001 hours (local time) June 29, 2004, until the 2005-
06 annual specifications and management measures are effective; unless 
modified, superseded, or rescinded through a publication in the Federal 
Register. Comments on this rule will be accepted through July 28, 2004.

ADDRESSES: You may submit comments, identified by (I.D. 062304A), by 
any of the following methods:
     E-mail: GroundfishInseason#[email protected]: Include the 
I.D. number in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070; or Rod McInnis, 
Acting Administrator, Southwest Region, NMFS, 501 West Ocean Blvd, 
Suite 4200, Long Beach, CA 90802-4213.
     Fax: 206-526-6736

FOR FURTHER INFORMATION CONTACT: Jamie Goen (Northwest Region, NMFS), 
phone: 206-526-6150; fax: 206-526-6736; and e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is available on the Government 
Printing Office's website at: www.gpoaccess.gov/fr/index.html.
    Background information and documents are available at the NMFS 
Northwest Region website at: www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and 
at the Pacific Fishery Management Council's website at: 
www.pcouncil.org.

Background

    The Pacific Coast Groundfish FMP and its implementing regulations 
at 50 CFR part 660, subpart G, regulate fishing for over 80 species of 
groundfish off the coasts of Washington, Oregon, and California. 
Groundfish specifications and management measures are developed by the 
Pacific Fishery Management Council (Pacific Council), and are 
implemented by NMFS. The specifications and management measures for the 
2004 fishing year (January 1 - December 31, 2004) were initially 
published in the Federal Register as an emergency rule for January 1 - 
February 29, 2004 (69 FR 1322, January 8, 2004), and as a proposed rule 
for March 1 - December 31, 2004 (69 FR 1380, January 8, 2004). The 
emergency rule was amended at 69 FR 4084, January 28, 2004, and the 
final rule for March 1 - December 31, 2004, was published in the 
Federal Register on March 9, 2004 (69 FR 11064), and subsequently 
amended at 69 FR 23440 (April 29, 2004), 69 FR 23667 (April 30,

[[Page 38858]]

2004), 69 FR 25013 (May 5, 2004)and 69 FR 28086 (May 18, 2004).
    The following changes to current groundfish management measures 
were recommended by the Pacific Council, in consultation with Pacific 
Coast Treaty Indian Tribes and the states of Washington, Oregon, and 
California, at its June 14-18, 2004, meeting in Foster City, CA. 
Pacific Coast groundfish landings will be monitored throughout the 
year, and further adjustments to trip limits or management measures 
will be made as necessary to allow achievement of, or to avoid 
exceeding the 2004 optimum yields (OYs).

Limited Entry Fixed Gear Primary Sablefish Fishery

    NMFS made an error in calculating the limited entry fixed gear 
primary sablefish fishery tier limits for the 2004 season. Initially, 
the 2003 tier limits were used as a placeholder for the 2004 primary 
season in the final rule (69 FR 11064, March 9, 2004) until the new 
observer data was released in the spring of 2004. Bycatch rates from 
the new observer data were used to update the model which calculates 
the sablefish tier limits. The 2004 tier limits were expected to be 
higher than the 2003 limits based on the new, lower bycatch rates and 
the higher sablefish OY for 2004. Updated, higher tier limits for 2004 
were published in the Federal Register on May 5, 2004 (69 FR 25013) 
after the start of the primary sablefish season. Subsequently, NMFS 
discovered an error in its calculation of the 2004 tier limits. The 
tier limits were calculated from the 2004 sablefish acceptable 
biological catch (ABC) rather than from the OY. Thus, the 2004 tier 
limits were substantially higher than they should have been and, if 
fully harvested, may result in allowing the fisheries to exceed the 
sablefish OY by approximately 172 mt (78 kg), which is 2 percent of the 
total 2004 sablefish OY. The primary sablefish season started on April 
1 and tier limits through April in PacFIN show landings are tracking 
slower this year than last year. However, due to the delay in reported 
landings data into PacFIN, it is likely that more of the higher, 
erroneous tier limits have already been landed. NMFS estimates that 
between 50 and 75 percent of the sablefish tier limits may have already 
been landed at the higher, erroneous tier limits. Based on those 
percentages, and assuming the same tier limit tonnage that was not 
landed in 2003 will remain unlanded in 2004, the primary sablefish 
fishery may be 40 to 83 mt over the amount originally planned for that 
fishery. Presumably, additional tonnage will remain unharvested from 
the limited entry fixed gear and open access daily trip limit fisheries 
and total harvest will remain below the sablefish OY. With the delay in 
landings reported into PacFIN from fish tickets, along with the 
uncertainty on how many fishermen are actively fishing their tiers, it 
is difficult to determine at this time if the sablefish OY will be 
exceeded in 2004. NMFS will continue to track landings in this fishery, 
and if landings are tracking high and approaching the sablefish OY, 
NMFS will consult with the Pacific Council at its September 12 - 17, 
2004, meeting to determine what further adjustments may be necessary in 
this fishery.
    The Pacific Council recommended, and NMFS is implementing, 
reductions in the primary season sablefish tier limits as follows: Tier 
1 will be reduced from 69,600 lb (31,570 kg) to 64,300 lb (29,166 kg), 
Tier 2 will be reduced from 31,600 lb (14,334 kg) to 29,200 lb (13,245 
kg), and Tier 3 will be reduced from 18,100 lb (8,210 kg) to 16,700 lb 
(7,575 kg). These are the limits that should have been set in place in 
May, had they been calculated from the sablefish OY instead of the ABC.
    A permit holder who has already landed his or her tier limits is 
not in violation of these regulations if the holder was complying with 
the regulations in effect at the time of landing. For permit holders 
who at this time have only partially achieved their tier limits, any 
past catch during the 2004 primary season will count toward the 
adjusted, lower tier limit. For example, a stacked Tier 1 and Tier 2 
permit would have previously had a cumulative limit of 101,200 lb 
(45,904 kg) and now has a cumulative limit of 93,500 lb (42,411 kg). If 
70,000 lb (31,752 kg) have already been landed on a stacked Tier 1 and 
Tier 2 permit prior to this inseason action, 23,500 lb (10,659 kg) 
would remain to be fished on those stacked permits.

NMFS Actions

    For the reasons stated herein, NMFS concurs with the Pacific 
Council's recommendations and hereby announces the following changes to 
the 2004 specifications and management measures (69 FR 11064, March 9, 
2004), as subsequently amended at 69 FR 23440 (April 29, 2004), 69 FR 
23667 (April 30, 2004), 69 FR 25013 (May 5, 2004)and 69 FR 28086 (May 
18, 2004), to read as follows:
    1. In section IV., under B. Limited Entry Fishery, paragraph 
(2)(b)(i) is revised to read as follows:
* * * * *

B. Limited Entry Fishery

    (2) * * *
    (b) * * *
    (i) Primary season. The primary season begins at 12 noon l.t. on 
April 1, 2004, and ends at 12 noon l.t. on October 31, 2004. There are 
no pre-season or post-season closures. During the primary season, each 
vessel with at least one limited entry permit with a sablefish 
endorsement that is registered for use with that vessel may land up to 
the cumulative trip limit for each of the sablefish-endorsed limited 
entry permits registered for use with that vessel, for the tier(s) to 
which the permit(s) are assigned. For 2004, the following limits are in 
effect: Tier 1, 64,300 lb (29,166 kg); Tier 2, 29,200 lb (13,245 kg); 
and Tier 3, 16,700 lb (7,575 kg). All limits are in round weight. If a 
vessel is registered for use with a sablefish-endorsed limited entry 
permit, all sablefish taken after April 1, 2004, count against the 
cumulative limits associated with the permit(s) registered for use with 
that vessel.
* * * * *

Classification

    These actions are authorized by the Pacific Coast groundfish FMP 
and its implementing regulations, and are based on the most recent data 
available. The aggregate data upon which these actions are based are 
available for public inspection at the Office of the Administrator, 
Northwest Region, NMFS, (see ADDRESSES) during business hours.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the requirement to provide prior notice and opportunity for 
public comment on this action pursuant to 5 U.S.C. 553(b)(3)(B), 
because providing prior notice and opportunity for comment would be 
impracticable. Providing prior notice and comment on the inseason 
adjustment would be impracticable because the data upon which these 
recommendations were based was provided to the Pacific Council and the 
Pacific Council made its recommendations at its June 14-18, 2004, 
meeting in Foster City, CA. There was not sufficient time after that 
meeting to draft this notice and undergo proposed and final rulemaking 
before these actions need to be in effect as explained below. The 
adjustments to management measures in this document are changes to the 
limited entry primary sablefish fishery tier limits. Changes are being 
made to correct an error in the calculation of the sablefish tier 
limits. The tier limits implemented on May 1, 2004 were incorrectly 
calculated using

[[Page 38859]]

the sablefish ABC rather than the OY. Thus, tier limits were higher 
than they should have been. Leaving these in place would result in 
allowing fisheries to exceed the sablefish OY if all tier limits were 
achieved. The sablefish tier limits in this inseason action are 
recalculated using the sablefish OY to reduce the take of sablefish in 
an effort to keep harvest within the OY set for the year. Delaying 
these changes to management measures could lead to early closures of 
the fishery. This would contradict 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. Alternatively, delay could lead to exceeding the OY. 
Finally, providing prior notice and public comment would provide most 
permit holders an opportunity to take their higher tier limits before 
the effective date of this notice, which would negate any benefit from 
this notice. As explained above, prior notice and opportunity for 
comment would be impracticable because affording prior notice and 
opportunity for public comment would take too long, thus impeding the 
Agency's function of managing fisheries to approach without exceeding 
the OYs for federally managed species.
    For these reasons, good cause also exists to waive the 30 day delay 
in effectiveness requirement under 5 U.S.C. 553 (d)(3).
    These actions are taken under the authority of 50 CFR 660.323(b)(1) 
and are exempt from review under Executive Order 12866.

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

    Dated: June 23, 2004.
Alan D. Risenhoover,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 04-14717 Filed 6-28-04; 8:45 am]
BILLING CODE 3510-22-S