[Federal Register Volume 69, Number 148 (Tuesday, August 3, 2004)]
[Rules and Regulations]
[Pages 46448-46451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17667]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 040726215-4215-01; I.D. 071604D]
[RIN 0648-AS48]


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Pacific Whiting; Routine Management 
Measure; Closure Authority

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

ACTION: Emergency rule; request for comments.

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SUMMARY:  This emergency rule establishes routine management measure 
authority, under the Pacific Coast Groundfish Fishery Management Plan 
(Pacific Coast Groundfish FMP), to close the Pacific whiting (whiting) 
primary season fisheries by sector before the sector's whiting 
allocation is reached in order to minimize impacts on overfished 
species. This action is necessary to establish a mechanism that can be 
used to quickly close the commercial whiting primary season fisheries 
if NMFS estimates that the incidental catch of an overfished species is 
too high.

DATES: This rule is effective August 3, 2004, through January 31, 2005. 
Comments must be received no later than 5 p.m., local time on September 
2, 2004. Copies of the Record of Decision (ROD), final regulatory 
flexibility analysis (FRFA), and the Small Entity Compliance Guide for 
the annual harvest specifications for 2004 are available from D. Robert 
Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 
7600 Sand Point Way, NE, Seattle, WA 98115-0070.

ADDRESSES:  You may submit comments on this emergency rule by I.D. 
071604D, by any of the following methods:
     E-mail: [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, Attn: Becky 
Renko.

[[Page 46449]]

     Fax: 206-526-6736
    Copies of the Final Environmental Impact Statement (FEIS) for the 
harvest specifications and management measures for the 2004 groundfish 
fishery is available from Donald McIsaac, Executive Director, Pacific 
Fishery Management Council (Council), 7700 NE Ambassador Place, 
Portland, OR 97220, phone: 503-820-2280.

FOR FURTHER INFORMATION CONTACT:  Becky Renko (Northwest Region, NMFS) 
206-526-6150.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This 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 NMFS 
Northwest Region website at http://www.nwr/noaa.gov/1susufsh/gdfsh01.htm and at the Council's website at http://www.pcouncil.org.
    Regulations at Sec.  660.323 (b) authorize the use of routine 
management measures in the groundfish fishery off Washington, Oregon, 
and California for the purpose of rebuilding and protecting overfished 
or depleted stocks. This action is consistent with the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) guidance 
on overfished species management.

Routine Management Measures

    The regulatory measures available to manage the West Coast 
groundfish fisheries include, but are not limited to, harvest 
guidelines, quotas, landing limits, frequency limits, gear restrictions 
(escape panels or ports, codend mesh size, etc.), time/area closures, 
prohibited species, bag and size limits, permits, other forms of effort 
control, allocation, reporting requirements, and onboard observers. 
Routine management measures are those regulatory measures that the 
Council determines are likely to be adjusted on an annual or more 
frequent basis.
    Routine management measures are necessary to meet the varied and 
interwoven mandates of the Magnuson-Stevens Act and the Pacific Coast 
Groundfish FMP. These mandates include: implementing the overfished 
species rebuilding plans, reducing bycatch, preventing overfishing, 
allowing the harvest of healthy stocks as much as possible while 
protecting and rebuilding overfished and depleted stocks, and 
distributing equitably the burden of rebuilding among the sectors. 
Routine management measures may be used to address a resource problem 
with an overfished species.
    Measures are classified as routine through a rulemaking process. 
For a measure to be classified as routine, the Council will determine 
that the measure is appropriate to address a particular management 
issue. Once a measure is classified as routine, it may be modified 
thereafter by recommendation of the Council at a single Council 
meeting, providing it is used for the same intended purpose as the 
original measure. This allows for a swift adjustment of management 
measures to respond to updated information received during the fishing 
year.

Inseason Management of Overfished Species

    NMFS made catch projections prior to the start of the fishing year 
for all West Coast groundfish fisheries to determine whether the 
Council's preferred management measures would keep harvests of 
overfished species within their 2004 OYs. These projections included 
incidental catch estimates of overfished species for the various 
commercial and recreational directed groundfish fisheries, the tribal 
fisheries, non-groundfish fisheries, and research activities. As the 
2004 fishing year has progressed and new fisheries' data have become 
available, NMFS has modified and updated the estimates of overfished 
species total catch.

The Whiting Fishery

    The 2004 non-tribal commercial OY for whiting is 215,500 mt (this 
is calculated by deducting the 32,500 mt tribal allocation and 2,000 mt 
for research catch and bycatch in non-groundfish fisheries from the 
250,000 mt total catch OY). Regulations at 50 CFR 660.323(a)(4) divide 
the commercial whiting OY into separate allocations for the catcher-
processor, mothership, and shore-based sectors. The catcher-processor 
sector is composed of vessels that harvest and process whiting. The 
mothership sector is composed of motherships and catcher vessels that 
harvest whiting for delivery to motherships. Motherships are vessels 
that process, but do not harvest, whiting. The shore-based sector is 
composed of vessels that harvest whiting for delivery to land-based 
processors.
    Each commercial sector receives a portion of the commercial OY. For 
2004, the catcher-processors received 34 percent (73,270 mt); 
motherships received 24 percent (51,720 mt); and the shore-based sector 
received 42 percent (90,510 mt).
    Regulations at 50 CFR 660.323(a)(3)(i) describe the primary season 
for each sector. For catcher-processors, the primary season is the 
period(s) when at-sea processing is allowed and the fishery is open for 
the catcher-processor sector. For motherships, the primary season is 
the period when at-sea processing is allowed and the fishery is open 
for the mothership sector. The primary season for the shore-based 
sector is the period when the large-scale target fishery is conducted 
(when trip limits under Sec.  660.323(b) are not in effect). Before and 
after the primary seasons, per-trip limits are in effect for whiting. 
When a sector's allocation is reached, the primary season for that 
sector is ended.
    In 2004, the primary seasons for the non-tribal mothership and 
catcher-processor sectors began May 15. The shore-based season in most 
of the Eureka area (between 42[deg] and 40[deg]30' N. lat.) began on 
April 1, and the fishery south of 40[deg]30' N. lat. opened April 15. 
The shore-based fishery north of 42[deg] N. lat. began on June 15.
    As in previous years, most shore-based whiting vessels were issued 
exempted fishing permits (EFPs) for landing unsorted whiting during the 
primary season. EFPs allow vessels delivering to shore-based harvesters 
to delay sorting the catch until offload. Delaying sorting until 
offload, allows state biologists and industry-hired monitors to collect 
information on the incidental catch of prohibited species at the 
processing facilities. Beginning in 2004, all EFP participants have 
been required to carry video cameras for monitoring full retention at 
sea. To provide total catch data for monitoring the at-sea processing 
sectors of the fishery, all at-sea processing vessels voluntarily carry 
two NMFS-trained observers while participating in the fishery. Total 
catch data from the whiting fisheries are available more swiftly for 
use in management decisions than data from many other West Coast 
groundfish fisheries.

Canary Rockfish Catch in the 2004 Whiting Fisheries

    During the early season shore-based fishery off California and the 
first 2 weeks of the at-sea catcher-processor and mothership fisheries, 
the incidental catch of canary rockfish was relatively low. However, in 
early June a single tow taken from the Heceta Bank area, by a vessel in 
the mothership sector, was estimated to contain 3.9 mt of canary 
rockfish. This single haul exceeded the 0.9-mt total catch projection 
for the mothership sector. As of June 9, 2004, the total catch estimate 
for canary rockfish in the catcher-processor and non-tribal mothership 
sectors was 4.2 mt, as compared with the projected 2.2

[[Page 46450]]

mt. Through June 9, 2004, only 35 percent of the whiting allocation for 
catcher-processor and non-tribal mothership sectors had been taken. At 
this time, the primary season fisheries are open for all sectors of the 
whiting fishery.
    In response to the elevated catches of canary rockfish in the 
whiting fishery, the Council requested that NMFS implement an emergency 
rule that allows appropriate sectors of the commercial whiting fishery 
to be closed if the canary rockfish impacts reach 7.3 mt. Therefore, 
NMFS is publishing this emergency rule to established routine 
management measure authority, under the Pacific Coast Groundfish FMP, 
in order to close the whiting primary season fisheries by sector before 
the sector's whiting allocation is reached and to minimize impacts on 
overfished species. After implementation of this emergency rule, NMFS 
plans to use this authority, if appropriate, to implement the new 
routine management measure recommended by the Council. That is, if NMFS 
estimates, using the best available data, that 7.3 mt of canary 
rockfish have been taken in the 2004 whiting fisheries, NMFS will take 
inseason action and publish a Federal Register document to close 
appropriate sectors of the commercial fisheries.
    In addition to the Council's recommendation that NMFS establish 
routine management measure authority to close the whiting primary 
season fisheries in order to minimize the impacts on overfished 
species, the Council also recommended asking the whiting vessel owners 
to voluntarily avoid areas of known high canary rockfish bycatch. This 
recommendation applied to all sectors of the whiting fishery.
    After the Council's June meeting, commercial whiting fishery data, 
NMFS trawl survey information, Washington State exempted fishing permit 
data findings, and other NMFS submersible research data were compiled 
in an effort to identify areas where high canary rockfish bycatch is 
likely to occur. On June 23, 2004, NMFS made these maps available to 
the participants in the whiting fishery to identify geographic 
locations that are known as areas of high canary rockfish bycatch, and 
that should be avoided.

Classification

    This emergency rule establishes routine management measure 
authority to close the whiting primary season fisheries by sector 
before the attainment of the sector allocations in order to address 
bycatch concerns of overfished species. It is issued under the 
authority of the Magnuson-Stevens Act and is consistent with the 
regulations implementing the Pacific Coast Groundfish FMP at 50 CFR 
part 660.
    The Assistant Administrator for Fisheries (AA), NMFS, finds good 
cause to waive the requirement to provide prior notice and comment on 
this action pursuant to 5 U.S.C. 553(b)(3)(B) because providing prior 
notice and opportunity for public comment would be impracticable. The 
data upon which these recommendations were based were provided to the 
Council at its June 2004 meeting. There was insufficient time after the 
meeting to draft this document and to undergo a proposed and final 
rulemaking before this action needs to be in effect, as explained 
below. Prior notice and 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, OYs for federally managed species.
    Canary rockfish was declared overfished on January 4, 2000 (65 FR 
221). A rebuilding plan was adopted into regulation in early 2004 
(April 13, 2004, 69 FR 19347). In accordance with the newly adopted 
rebuilding plan, the coastwide OY for canary rockfish was set very low 
for 2004. The total projected catch of canary rockfish for the 2004 
primary whiting fishery is 7.3 mt. In response to the elevated catches 
of canary rockfish during early June and concerns that the OY may be 
exceeded, the Council requested that NMFS develop this emergency rule 
to allow appropriate sectors of the primary whiting fishery to be 
closed if the canary rockfish impacts reach 7.3 mt.
    Under the Pacific Coast Groundfish FMP and implementing regulations 
where protection of an overfished stock is required, closed areas or 
seasons may be used in any commercial fisheries and for any gear type. 
This action provides a mechanism to close the whiting fisheries before 
the attainment of the whiting allocations to keep the harvest of an 
overfished species within their OYs. The whiting fisheries are 
generally very fast paced and vessels tend to incidentally catch 
overfished species at sporadic and unpredictable rates. As of July 27, 
2004, inseason whiting fisheries data indicates that 5.46 mt of the 7.3 
mt of canary rockfish available to the whiting fisheries has been 
taken. Inseason data also indicates that the shore-based sector of the 
fishery may attain its whiting allocation and need to be closed as soon 
as August 17, 2004. If this emergency rule were delayed for a public 
notice and comment period, the 7.3 mt of canary rockfish available to 
the fisheries could easily be taken before the completion of the public 
comment period. Therefore, delaying this rule could result in 
unexpectedly high bycatch of canary rockfish such that the annual OY, 
established for rebuilding is exceeded, or that many other portions of 
the groundfish fishery would have to be closed to make up for bycatch 
in the whiting fishery.
    For the reasons described above, pursuant to 5 U.S.C. 553(d)(3), 
the AA also finds good cause to waive the 30-day delay in 
effectiveness, so that this rule may become effective as soon as 
possible to enable the whiting fishery to close when the 7.3 mt canary 
rockfish bycatch amount is reached.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior public comment.
    This emergency rule is consistent with the requirements of 
Executive Order 13175 because it was developed after meaningful 
consultation with the tribal representative on the Council.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: July 28, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

0
l. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.323, paragraph (b)(1)(i) is added to read as follows 
and paragraph (b)(1)(ii) is added and reserved:


Sec.  660.323  Pacific whiting allocations, allocation attainment, and 
inseason allocation reapportionment.

* * * * *
    (b) * * *
    (1) * * *
    (i) Differential trip landing limits and frequency limits based on 
gear type, closed seasons. Trip landing and frequency limits that 
differ by gear type and closed seasons may be imposed or

[[Page 46451]]

adjusted on a biannual or more frequent basis for the purpose of 
rebuilding and protecting overfished or depleted stocks. To achieve the 
rebuilding of an overfished or depleted stock, the Pacific whiting 
primary seasons described at Sec.  660.323(3)(i) may be closed for any 
or all of the fishery sectors identified at Sec.  660.323(4)(i)(A) 
before the sector allocation is reached.
* * * * *
[FR Doc. 04-17667 Filed 8-2-04; 8:45 am]
BILLING CODE 3510-22-S