[Federal Register Volume 71, Number 98 (Monday, May 22, 2006)]
[Rules and Regulations]
[Pages 29257-29272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4738]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 060424110-6110-01; I.D. 081304C]
RIN 0648-AU39


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures; Correction

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

ACTION: Final rule; request for comments; correction.

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SUMMARY: This final rule establishes the 2006 fishery specifications 
for Pacific whiting (whiting) in the U.S. exclusive economic zone (EEZ) 
and state waters off the coasts of Washington, Oregon, and California, 
as authorized by the Pacific Coast Groundfish Fishery Management Plan 
(FMP). It also adjusts the bycatch limits in the whiting fishery. This 
Federal Register document also corrects the final rule implementing the 
specifications and management measures, which was published December 
23, 2004. These specifications include the level of the acceptable 
biological catch (ABC), optimum yield (OY), tribal allocation, and 
allocations for the non-tribal commercial sectors. The intended effect 
of this action is to establish allowable harvest levels of whiting 
based on the best available scientific information.

DATES: Effective May 19, 2006. Comments on the revisions to bycatch 
limits must be received no later than 5 p.m., local time on June 6, 
2006.

ADDRESSES: You may submit comments, identified by I.D. 081304C by any 
of the following methods:
     E-mail: [email protected]: Include I.D. 081304C 
in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 206-526-6736, Attn: Becky Renko

[[Page 29258]]

     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky 
Renko.
    Copies of the final environmental impact statement (FEIS) for this 
action are available from Donald McIsaac, Executive Director, Pacific 
Fishery Management Council (Council), 7700 NE Ambassador Place, 
Portland, OR 97220, phone: 503-820-2280.
    Copies of additional reports referred to in this document may also 
be obtained from the Council. Copies of the Record of Decision (ROD), 
final regulatory flexibility analysis (FRFA), and the Small Entity 
Compliance Guide are available from D. Robert Lohn, Administrator, 
Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, 
NE, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS) 
206-526-6110.

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 NMFS 
Northwest Region Web site at http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm.

Background

    A proposed rulemaking to implement the 2005-2006 specifications and 
management measures for the Pacific Coast groundfish fishery was 
published on September 21, 2004 (69 FR 56550). The final rule to 
implement the 2005-2006 specifications and management measures for the 
Pacific Coast Groundfish Fishery was published on December 23, 2004 (69 
FR 77012). Comments regarding bycatch of overfished species, including 
bycatch of overfished species in the whiting fishery were responded to 
in the final rule.
    In November 2003, the U.S. and Canada signed an agreement regarding 
the conservation, research, and catch sharing of whiting. The whiting 
catch sharing arrangement that was agreed upon provides 73.88 percent 
of the total catch OY to the U.S. fisheries and 26.12 percent to the 
Canadian fisheries. At this time, both countries are taking steps to 
bring this agreement into force. Until the agreement is ratified and 
implementing legislation becomes effective, the negotiators recommended 
that each country apply the agreed upon provisions to their respective 
fisheries.
    In anticipation of the ratification of the U.S.-Canada agreement 
and a new stock assessment, and given the small amount of whiting that 
is typically landed under trip limits prior to the April 1 start of the 
primary season, the Council adopted a range for OY and ABC in the 2005-
2006 specifications, and delayed adoption of final 2005 and 2006 ABC 
and OY until its March 2005 and 2006 meetings, respectively. To date, 
the international agreement has not yet been ratified and implementing 
legislation has not yet been made effective. A final rule to implement 
the 2005 harvest specifications and management measures for the whiting 
fishery was published on May 3, 2005 (70 FR 22808). NMFS received no 
comments on the 2005 harvest specifications and management measures for 
the whiting fishery. The ABC and OY values recommended by the Council 
as final ABC and OY values for 2006 are based on a stock assessment 
update, and their impacts are consistent with the scope of impacts 
considered in the EIS for the 2005 and 2006 management measures. The OY 
being implemented in this rule, and the resulting allocations among the 
sectors and the bycatch limit for canary rockfish are the same as those 
in effect in 2005. The bycatch limit for widow rockfish is slightly 
lower than the limit in 2005.

Stock Status

    In general, whiting is a very productive species with highly 
variable recruitment (the biomass of fish that mature and enter the 
fishery each year) and a relatively short life span when compared to 
other overfished groundfish species. In 1987, the whiting biomass was 
at a historically high level due to an exceptionally large number of 
fish that spawned in 1980 and 1984 (fished spawned during a particular 
year are referred to as year classes). As these large year classes of 
fish passed through the population and were replaced by moderate sized 
year classes, the stock declined. The whiting stock stabilized between 
1995 and 1997, but then declined to its lowest level in 2001. After 
2001, the whiting biomass increased substantially as a strong 1999 year 
class matured and entered the spawning population. The 1999 year class 
is now rapidly moving through the population.
    The joint US-Canada Stock Assessment Review (STAR) panel met 
February 6-9, 2006, to review an updated whiting stock assessment 
prepared by the Northwest Fisheries Science Center. The STAR panel 
accepted two equally plausible assessment models that consider 
uncertainty in the relative depletion level and stock productivity.
    As in 2005, the amount of whiting that the hydroacoustic survey was 
able to measure relative to the total amount of whiting in the surveyed 
area (survey catchability coefficient or q) was identified as a major 
source of uncertainty in the new stock assessment. Model-1 has a fixed 
value of q=1, while Model-2 estimates q in the model (using an 
informative prior) to arrive at q = 0.69, which results in an upward 
scaling of both biomass and ABC/OY estimates. Uncertainty regarding the 
true value of q has been a major issue with whiting stock assessments 
in recent years, and the Council has based whiting ABC and OYs from the 
last several assessments on models where q was set equal to 1.
    With Model-1, q=1, the whiting stock biomass was estimated to be at 
31 percent of its unfished biomass at the end of 2005 and at 38 percent 
of its unfished biomass with Model-2, q=0.69. Because only moderately 
sized year classes have been observed since 1999, the whiting biomass 
is projected to decline in the near future. However, data from the 2005 
hydroacoustic survey suggest a moderately strong 2003 year class, and 
that a moderate to strong 2004 year class may mature and enter the 
fishery in the next few years. If these year classes are stronger than 
currently projected, the whiting biomass could stabilize or even 
increase in biomass.
    The steepness of the stock-recruitment relationship (the proportion 
of young fish entering the population in relation to the number of 
adult fish) was redefined in the 2006 assessment. A steepness value of 
0.75 was used in 2006, whereas a value of 1 was used in 2005. Assuming 
a steepness of 1 implies that the recruitment is the same when the 
biomass is high and when the biomass is lower, which may result in 
overly optimistic projections. The Council's Scientific and Statistical 
Committee (SSC)recommended that the steepness of the stock-recruitment 
relationship be explored further with the next assessment.
    The U.S. Canada Treaty provisions include the use of a default 
harvest rate of F40%. A rate of F40% can be 
explained as that which reduces spawning potential per female to 40 
percent of what it would have been under natural conditions (if there 
were no mortality due to fishing). The selection of the F40% 
value was based on an analysis of stock and recruitment data for other 
whiting (hake) species. However, because the whiting stock is projected 
to fall below the overfished threshold if managed with a harvest rate 
of F40%, the

[[Page 29259]]

SSC recommended that further work be done on the development of a 
control rule that allows for maximized yields while keeping whiting 
above the overfished threshold.
    Based on its review, the SSC endorsed the use of both models in 
setting 2006 ABCs and OYS and noted that the results of both models 
could be combined, with each model given equal weighting, to form the 
basis of a management recommendation.

ABC/OY Recommendations

    The range of U.S. ABCs and OYs considered by the Council and 
analyzed in the EIS for 2006 included: a low ABC/OY of 114,296 mt, 
which represents 50 percent of the medium ABC/OY; a medium ABC/OY of 
228,593 mt, based on the results of the 2004 assessment with the OY 
being set equal to the ABC because the stock biomass is greater than 40 
percent of the unfished biomass; and a high ABC/OY of 457,186 mt, which 
is twice the amount of the medium ABC/OY.
    At its March 6-10, 2006, meeting in Seattle, WA, the Council 
reviewed the results of the new whiting stock assessment and 
recommended adopting a U.S.-Canada coastwide ABC of 661,680 mt (results 
in a U.S. ABC of 518,294 mt based on q=1 and the harvest rate proxy of 
F40%. Because the whiting biomass is estimated to be below 
40 percent of its unfished biomass, the 40/10 adjustment was applied as 
defined by the U.S.-Canada agreement. With the 40/10 adjustment, the 
U.S.-Canada coastwide OY was 593,750 mt with the q=1 model, and 883,490 
mt with the q=0.69 model. The potential OYs with the 40/10 adjustment 
were unsupportably high, at record levels during a time when the stock 
biomass is in decline. Both 40/10 based OYs were projected to result in 
the stock biomass falling below the overfished threshold by 2007. Given 
the relative impact on future stock biomass levels, the Council 
considered a more conservative range of U.S.-Canada coastwide OYs that 
were between 100,000 mt and 400,000 mt.
    Following discussion and public testimony, the Council recommended 
adopting a U.S.-Canada coastwide OY of 364,842 mt with a corresponding 
U.S. OY of 269,069 mt. The U.S. OY is the same as the OY value that was 
in place in 2005. With a U.S. OY of 269,069 mt, the stock biomass level 
is projected to drop below the overfished level by 2008 if q=1 is the 
true state of nature; however, the biomass would remain near 30 percent 
of the unfished level if q=0.69 is the true state of nature. When the 
results of both models are combined and given equal weighting, as 
recommended by the SSC, the 2008 depletion level is projected to be 
slightly above the overfished level. Because whiting stock assessments 
are prepared annually and OYs adjusted annually, the risk of reaching 
an overfished conditions is reduced. A new stock assessment will be 
prepared prior to the 2007 fishing year and will provide an opportunity 
to further adjust harvest levels in response to new assessment 
information. The 2007 assessment will further investigate the 
appropriateness of model parameters, harvest rates proxies, and year 
class strength.

Overfished Species

    The availability of overfished species as incidental catch, 
particularly Pacific ocean perch, canary rockfish, darkblotched 
rockfish, and widow rockfish, may prevent the industry from harvesting 
the entire whiting OY during 2006. To allow the industry to have the 
opportunity to harvest the higher whiting OY, the Council recommended 
bycatch limits for certain overfished species. With bycatch limits, the 
industry has the opportunity to harvest a larger amount of whiting, if 
they can do so while keeping the incidental catch of specific 
overfished species within adopted bycatch limits. Regulations provide 
for the automatic closure of the commercial (non-tribal) portion of the 
whiting fishery upon attainment of a bycatch limit.
    In recent years, the most constraining overfished species for the 
whiting fishery have been darkblotched, canary and widow rockfish. 
Prior to this final rule, regulations at 50 CFR 660.373 (b)(4) 
contained the following bycatch limits for the commercial sectors (non-
tribal) of the whiting fishery: 7.3 mt bycatch limit for canary and 
243.2 mt for widow rockfish.
    At the March 2006 Council meeting, the Council's groundfish 
management team (GMT) examined the 2006 whiting OY alternatives in 
relation to the impacts of incidental catch of overfished species. With 
an OY of 269,069 mt and in the absence of any further restrictions, the 
catch of canary rockfish was estimated to be approximately 5.4 mt, the 
catch of widow rockfish was estimated to be approximately 122 mt, and 
the catch of darkblotched rockfish was estimated to be approximately 
16.2 mt. As in 2005, canary rockfish was found to be the most 
constraining overfished species for the 2006 whiting fishery. After 
considering the projected catch of overfished species in all other 
fishing and research activities, the Council recommended that the 
canary rockfish bycatch limit for the whiting fishery be set at 4.7 mt, 
which was the same limit that was in effect in 2005, and that the widow 
rockfish bycatch limit be set at 200 mt.
    The Council also considered establishing a darkblotched rockfish 
bycatch limit, but choose to delay its decision until its April meeting 
or later. If the whiting fishery encounters higher than expected take 
of Chinook salmon, fishers will be asked to take measures to avoid 
Chinook salmon catch. In 2005, fishers were required to fish seaward of 
the 100-fm depth contour to avoid Chinook salmon. If fishers are 
required or encouraged to fish in deeper waters in 2006 to avoid 
Chinook salmon or canary rockfish, it may result in increased 
darkblotched rockfish catch, which will be taken into account in 
establishing a darkblotched bycatch limit.

Allocations

    In 1994, the United States formally recognized that the four 
Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and 
Quinault) have treaty rights to fish for groundfish in the Pacific 
Ocean. In general terms, the quantification of those rights is 50 
percent of the harvestable surplus of groundfish that pass through the 
tribes' usual and accustomed ocean fishing areas (described at 50 CFR 
660.324).
    The Pacific Coast Indian treaty fishing rights, described at 50 CFR 
660.385, allow for the allocation of fish to the tribes through the 
specification and management measures process. A tribal allocation is 
subtracted from the species OY before limited entry and open access 
allocations are derived. The tribal whiting fishery is a separate 
fishery, and is not governed by the limited entry or open access 
regulations or allocations. To date, only the Makah Tribe has 
participated. It regulates, and in cooperation with NMFS, monitors this 
fishery so as not to exceed the tribal allocation.
    Beginning in 1999, NMFS set the tribal allocation according to an 
abundance-based sliding scale method, proposed by the Makah Tribe in 
1998 see 64 FR 27928, 27929 (May 29, 1999); 65 FR 221, 247 (January 4, 
2000); 66 FR 2338, 2370 (January 11, 2001). Details on the abundance-
based sliding scale allocation method and related litigation are 
discussed in the preamble to the proposed rule (69 FR 56570; September 
21, 2004) and are not repeated here. On December 28, 2004, the Ninth 
Circuit Court of Appeals upheld the sliding scale approach in Midwater 
Trawler Cooperative v. Daley, 393 F. 3d 994 (9th

[[Page 29260]]

Cir. 2004). Under the sliding scale allocation method, the tribal 
allocation varies with U.S. whiting OY, ranging from a low of 14 
percent (or less) of the U.S. OY when OY levels are above 250,000 mt, 
to a high of 17.5 percent of the U.S. OY when the OY level is at or 
below 145,000 mt. For 2006, using the sliding scale allocation method, 
the tribal allocation will be 35,000 mt, the same as in 2005. The Makah 
is the only Washington Coast tribe that requested a whiting allocation 
for 2006. The tribal fleet is comprised of 4 mid-water trawlers who 
deliver to shoreside plants and to two at-sea motherships one of which 
also participates in the non-tribal mothership whiting fishery.
    The 2006 commercial OY (non-tribal) for whiting is 232,069 mt. This 
is calculated by deducting the 35,000-mt tribal allocation and 2,000-mt 
for research catch and bycatch in non-groundfish fisheries from the 
269,069 mt total catch OY. Regulations at 50 CFR 660.323(a)(4) divide 
the commercial OY into separate allocations for the non-tribal catcher/
processor, mothership, and shore-based sectors of the whiting fishery.
    The catcher/processor sector is comprised of vessels that harvest 
and process whiting (the fleet has typically been 6 to 7 vessels since 
the formation of the Pacific Whiting Conservation Cooperative in 1997). 
The mothership sector is comprised of catcher vessels that harvest 
whiting for delivery to motherships (typically 3-5 motherships operate 
in the fishery with one mothership also servicing the tribal fleet). 
Motherships are vessels that process, but do not harvest, whiting. The 
shoreside sector is comprised of vessels that harvest whiting for 
delivery to shoreside processors (In recent years, the number of 
participating vessels has ranged from 29 to 35 vessels some of which 
also service the non-tribal mothership sector). Each sector receives a 
portion of the commercial OY, with the catcher/processors getting 34 
percent (78,903 mt), motherships getting 24 percent (55,696 mt), and 
the shore-based sector getting 42 percent (97,469 mt), the same as in 
2005.
    It should also be noted that whiting is not the only fishery that 
these vessels depend on. Shorebased vessels typically participate in 
other fisheries such as non-whiting groundfish, crab, and shrimp 
fisheries. Mothership and catcher-processor operations typically 
participate in the Alaska pollock fishery.
    All whiting caught in 2006 before the effective date of this action 
will be counted toward the new 2006 OY. As in the past, the 
specifications include fish caught in state ocean waters (0-3 nautical 
miles (nm) offshore) as well as fish caught in the EEZ (3-200 nm 
offshore).

Correction

    An omission was identified in the yelloweye rockfish footnote in 
Table 2a, which was published in the final rule of the 2005-2006 
harvest specifications (December 23, 2004; 69 FR 77012). Although the 
Council recommended that regional recreational harvest guidelines be 
specified for yelloweye rockfish to allow the states to swiftly close 
the recreational fisheries if the amount anticipated to be taken in the 
recreational fishery was reached, the yelloweye rockfish footnote in 
Table 2a neglected to identify the value of anticipated recreational 
catch as a harvest guideline or to apportion it north and south of the 
California/Oregon boarder as recommended by the Council and addressed 
in the EIS. The states recently notified NMFS of the omission. 
Specifying the anticipated amount as a harvest guideline is necessary 
to keep the fishery within the yelloweye rockfish OY specified for 
rebuilding, therefore the omission is being remedied with this 
document.

Classification

    The final whiting specifications and management measures for 2006 
are issued 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.
    For the following reasons, NMFS finds good cause to waive prior 
public notice and comment on the revisions to the 2006 Pacific whiting 
specifications and the canary and widow rockfish bycatch limits under 5 
U.S.C. 553(b)(B). Also for these 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 soon as possible after 
the April 1, 2006, fishery start date.
    The FMP requires that fishery specifications be evaluated 
periodically using the best scientific information available. NMFS does 
a stock assessment every year in which U.S. and Canadian scientists 
cooperate. The 2006 stock assessment update for whiting was prepared in 
early 2006, which is the optimal time of year to conduct stock 
assessments for this species. Whiting differs from other groundfish 
species in that it has a shorter life span and the population 
fluctuates more swiftly. Thus, it is important to use the most recent 
stock assessment when determining ABC and OY. Because of the timing of 
the assessment, the results are not available for use in developing the 
new ABC and OY until just before the Council's annual March meeting.
    In whiting fisheries, vessels tend to catch overfished species at 
sporadic and unpredictable rates. Protection of overfished species is 
required by the FMP and implementing regulations. The revised canary 
and widow rockfish bycatch limits for the whiting fisheries are 
intended to keep the overall harvest of overfished species within their 
rebuilding OYs. If the revision of bycatch limits for canary and widow 
rockfish were delayed for a public notice and comment period, the 4.7 
mt of canary rockfish and 200 mt of widow rockfish available to the 
whiting fishery would likely be taken before the completion of the 
public comment period. Therefore, delaying this final rule could result 
in unexpectedly high bycatch of canary and widow 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. Allowing the fisheries to exceed 
overfished species' OY would be contrary to the public's interest in 
rebuilding these overfished species and NMFS' obligations under the 
Magnuson-Stevens Act.
    The proposed rulemaking to implement the 2006 specifications and 
management measures, published on September 21, 2004 (69 FR 56550), 
addressed the delay in adopting the whiting ABC and harvest 
specifications. NMFS requested public comment on the proposed rule 
through October 21, 2004. The final rule was published on December 23, 
2004 (69 FR 77012) and again explained that the range in the 
specifications would be adjusted following the Council's March 2005 and 
2006 meetings and announced in the Federal Register as a final rule 
shortly thereafter.
    As explained above, NMFS was recently notified by the states that 
the regional recreational harvest guidelines for yelloweye had been 
omitted from the final rule. Though each of the three states has 
adopted regulations that conform to the Federal requirements, the 
inclusion of the yelloweye regional harvest guideline is particularly 
important for recreational fishery management in California. The State 
of California has adopted regulatory language that allows the 
recreational fishery to be closed quickly if a Federal recreational 
harvest guideline is reached. Given the large number of

[[Page 29261]]

recreational fishery participants, the limited amount of information to 
project catch, and the low OY for yelloweye rockfish, overfishing could 
occur quickly if California did not have a mechanism for stopping the 
fishery if the harvest guideline were to be reached. Revising the ABC/
OY tables to identify the anticipated yelloweye recreational catch 
amount as area harvest guidelines ensures that the state recreational 
fisheries can be managed to stay within the rebuilding-based OY for 
yelloweye rockfish. Allowing the fisheries to exceed an overfished 
species' OY would be contrary to the public's interest in rebuilding an 
overfished species, thus NMFS finds good cause to waive prior public 
notice and comment on these revisions, under 5 U.S.C. 553(b)(B). For 
the reasons stated above, NMFS also finds good cause under 5 U.S.C 553 
(d)(3) to waive the 30 day delay in effectiveness. This action needs to 
be implemented as soon as possible to allow the states to restrict the 
recreational fishery, if necessary, to keep catch of yelloweye rockfish 
within the rebuilding based OYs.
    The environmental impacts associated with the Pacific whiting 
harvest levels being adopted by this action are consistent with the 
impacts in the final environmental impact statement for the 2005-2006 
specification and management measures. Copies of the FEIS and the ROD 
are available from the Council (see ADDRESSES).
    An Initial Regulatory Flexibility Analysis (IRFA) and FRFA were 
prepared for the 2005-2006 harvest specifications and management 
measures, which included the regulatory impacts of this action on small 
entities. The IRFA was summarized in the proposed rule published on 
September 21, 2004 (69 FR 56550). The following summary of the FRFA 
analysis, which covers the entire groundfish regulatory scheme of which 
this is a part, was published in the final rule on December 23, 2004 
(69 FR 77012). The need for and objectives of this final rule are 
contained in the SUMMARY and in the Background section under 
SUPPLEMENTARY INFORMATION. NMFS did not receive any comments on the 
IRFA or on the proposed rule regarding the economic effects of this 
final rule.
    The final 2005-2006 specifications and management measures were 
intended to allow West Coast commercial and recreational fisheries 
participants to fish the harvestable surplus of more abundant stocks 
while also ensuring that those fisheries do not exceed the allowable 
catch levels intended to rebuild and protect overfished and depleted 
stocks. The form of the specifications, in ABCs and OYS, follows the 
guidance of the Magnuson-Stevens Act, the national standard guidelines, 
and the FMP for protecting and conserving fish stocks. Fishery 
management measures include trip and bag limits, size limits, time/area 
closures, gear restrictions, and other measures intended to allow year-
round West Coast groundfish landings without compromising overfished 
species rebuilding measures.
    Approximately 1,700511 vessels participated in the West Coast 
commercial groundfish fisheries in 20013. (This figure decreased to 
1,511 in 2003, the most recent year for which data are available.) Of 
those, about 420498 vessels (498 in 2003) were registered to limited 
entry permits issued for either trawl, longline, or pot gear. Of the 
remaining vessels, approximately 1280 vessels, about 770 participated 
in the open access fisheries and derived more than 5 percent of 
fisheries revenue from groundfish. All but 10-20 of the 1,511 vessels 
participating in the groundfish fisheries are considered small 
businesses by the Small Business Administration. In the 2001 
recreational fisheries, there were 106 Washington charter vessels 
engaged in salt water fishing outside of Puget Sound, 232 charter 
vessels active on the Oregon coast, and 415 charter vessels active on 
the California coast. Although some charter businesses, particularly 
those in or near large California cities, may not be small businesses, 
all are assumed to be small businesses for purposes of this discussion.
    In recent years the number of participants in the whiting fishery 
has ranged from 29 to 35 shoreside trawl vessels; 3 to 5 mothership 
operations-each of which are serviced typically by 3 or 4 trawl 
vessels, some of which deliver shoreside; and 7 catcher processors. 
Shore-based trawlers and trawlers that service motherships are 
considered small businesses as they typically earn less than $4.0 
million in revenues. (In 2003, the 30 vessels that participated in the 
shore-based whiting fishery, earned an average of $400,000 from Pacific 
whiting, coastal pelagic, crab, other groundfish, and shrimp fisheries. 
Motherships and catcher-processors are considered ``large'' as they 
typically earn far greater than $4.0 million each because of their 
participation in Alaska pollock fisheries.
    The Magnuson-Stevens Act requires that actions taken to implement 
FMPs be consistent with the 10 national standards, one of which 
requires that conservation and management measures shall, consistent 
with the conservation requirements of the Magnuson-Stevens Act, take 
into account the importance of fishery resources to fishing communities 
in order to (A) provide for the sustained participation of such 
communities and, (B) to the extent practicable, minimize adverse 
economic impacts on such communities. Fishing communities that rely on 
the groundfish resource and people who participate in the groundfish 
fisheries have weathered many regulatory changes in recent years. NMFS 
and the Council introduced the first overfished species rebuilding 
measures in 2000, which severely curtailed the fisheries from previous 
fishing levels. Since then, NMFS has implemented numerous management 
measures and regulatory programs intended to rebuild overfished stocks 
and to better monitor the catch and bycatch of all groundfish species. 
These programs are expected to improve the status of West Coast 
groundfish overfished stocks over time and, by extension, the economic 
health of the fishing communities that depend on those stocks. 
Initially, however, the broad suite of new regulatory programs that 
NMFS has introduced since 2000 have: reduced overall groundfish harvest 
levels, increased costs of participating in the fisheries, and caused 
confusion for fishery participants trying to track new regulatory 
regimes.
    The Council considered five alternative specifications and 
management measures regimes for 2005 and 2006: the no action 
alternative, which would have implemented the 2004 regime for 2005 and 
2006; the low OY alternative, which set a series of conservative 
groundfish harvest levels that were either intended to achieve high 
probabilities of rebuilding within TMAX for overfished 
species or modest harvest levels for more abundant stocks; the high OY 
alternative, which set harvest levels that were either intended to 
achieve lower probabilities of rebuilding within TMAX for 
overfished species or higher harvest levels for more abundant stocks; 
the medium OY alternative, which set harvest levels intermediate to 
those of the low and high alternatives;, and,; the Council OY 
alternative (preferred alternative,) which was the same as the medium 
OY alternative, but with more precautionary OY levels for lingcod, 
Pacific cod, cowcod, canary and yelloweye rockfish. Each of these 
alternatives included both harvest levels (specifications) and 
management measures needed to achieve those harvest levels, with the 
most restrictive management measures

[[Page 29262]]

corresponding to the lowest OYS. The most notable difference between 
the Council's preferred alternative and the other alternatives is that 
alternative's requirement that trawl vessels operating north of 
40[deg]10[deg] N. lat. use selective flatfish trawl gear. Because 
selective flatfish trawl gear has lower rockfish bycatch rates than 
conventional trawl gear, the targeted flatfish amounts available to the 
trawl fisheries are higher under the Council's preferred alternative 
than under the other alternatives. Each of the alternatives analyzed by 
the Council was expected to have different overall effects on the 
economy. Among other factors, the EIS for this action reviewed 
alternatives for expected changes in revenue and income from 2003 
levels. The low OY alternative was expected to decrease annual 
commercial income from the no action alternative by $1.99 million in 
2005 and 2006, decrease commercial fishery-related annual employment 
from the no action alternative by 0.3 percent in 2005 and 2006, and 
result in no changes in recreational fishery income from the no action 
alternative. The high OY alternative was expected to increase annual 
commercial income from the no action alternative by $2.54 million in 
2005 and 2006, increase commercial fishery-related annual employment 
from the no action alternative by 0.4 percent in 2005 and 2006, and 
result in no changes in recreational fishery income from the no action 
alternative. The medium OY alternative was expected to increase annual 
commercial income from the no action alternative by $1.51 million in 
2005 and 2006, increase commercial fishery-related annual employment 
from the no action alternative by 0.3 percent in 2005 and 2006, and 
result in no changes in recreational fishery income from the no action 
alternative. The Council's OY alternative was expected to increase 
annual commercial income from the no action alternative by $3.02 
million in 2005 and 2006, increase commercial fishery-related annual 
employment from the no action alternative by 0.5 percent in 2005 and 
2006, and result in no changes in recreational fishery income from the 
no action alternative. The Council's preferred alternative would have 
had commercial fisheries effects that were similar to or less 
beneficial than the medium OY alternative had the Council preferred 
alternative not included the requirement that trawl vessels north of 
40[deg]10' N. lat. fish with selective flatfish trawl gear in nearshore 
waters. The Council's preferred alternative is intended to meet the 
conservation requirements of the Magnuson-Stevens Act while reducing to 
the extent practicable the adverse economic impacts of these 
conservation measures on the fishing industries and associated 
communities.
    The 2006 ABC, OY, and sector allocations of whiting are the same as 
those of 2005. The bycatch limit for canary rockfish is the same as 
that set in 2005, though the bycatch limit for widow rockfish is 
slightly lower. As explained below, we expect that, compared to the 
economic impacts analyzed in 2004, this final rule will include some 
positive economic impacts due to increased production and revenue and 
some negative impacts due to rising fuel prices. Because of the 
uncertainty of these impacts, it is not possible for NMFS to quantify 
the net change in economic impact of this final rule as compared to 
that analyzed in 2004.
    The 2005 fishery generated peak landings of 259,000 tons worth $29 
million ex-vessel at $112 per ton. Landings in 2005 were the highest on 
record since 1966 when their was no domestic fishery and the only 
participants were foreign fishing vessels. Therefore it is expected 
that 2006 landings, will continue the growth in annual landings that 
has occurred since 2002 when the fishery harvested 132,000 tons. The 
2003 fishery harvested 142,000 tons worth, on an ex-vessel basis, $17 
million at $121 per ton with total catch and revenue reaching 217,000 
tons and $22 million ($101 per ton) in 2004.
    Based on indications from several industry representatives, markets 
for the whiting products may be stronger in 2006 than in 2005 as a 
result of European and Asian exchange rates and growing market demand. 
Therefore, revenues in 2006 may be greater than in 2005 as a result of 
price increases. Although cost information on the whiting fleets is 
unavailable, fuel is a major expenditure category. Compared to the 
first five months of 2005, fuel prices so far this year are about 15 to 
20 percent higher based on fuel prices collected by the Pacific States 
Marine Fisheries Commission. Therefore, whiting prices will need to 
increase in similar fashion in order for the industry to maintain 
current levels of profitability. Whether expected increase in whiting 
prices balance out the expect increase fuel prices is unknown, but 
conversations with industry representatives indicates that the 
expectation is that 2006 will be as good or a better year for the 
whiting fishery. Whether there will be significant environmental 
changes in 2006 that effect the fishery is unknown. The ability of 
being able to harvest the entire whiting OY will also depend on how 
well the industry stays within the bycatch limits set aside for the 
industry.
    Pursuant to Executive Order 13175, this final rule was developed 
after meaningful consultation with tribal officials during the Council 
process.
    This final rule has been determined to be exempt from review for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fishing, Fisheries, and Indian Fisheries.

    Dated: May 17, 2006.
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 amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. 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, (a)(2) is revised to read as follows:


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

    (a)* * *
    (2) The non-tribal commercial harvest guideline for whiting is 
allocated among three sectors, as follows: 34 percent for the catcher/
processor sector; 24 percent for the mothership sector; and 42 percent 
for the shoreside sector. No more than 5 percent of the shoreside 
allocation may be taken and retained south of 42[deg] N. lat. before 
the start of the primary whiting season north of 42[deg] N. lat. 
Specific sector allocations for a given fishing year are found in 
tables 1a and 2a of this subpart.
* * * * *

0
3. In Sec.  660.373, paragraph (b)(4) is revised to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (b) * * *
    (4) 2005-2006 bycatch limits in the whiting fishery. The bycatch 
limits for the whiting fishery may be used inseason to close a sector 
or sectors of the whiting fishery to achieve the rebuilding of an 
overfished or depleted stock, under routine management measure 
authority at Sec.  660.370 (c)(1)(ii). These limits are routine 
management measures under Sec.  660.370 (c) and, as such, may be 
adjusted inseason or may

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have new species added to the list of those with bycatch limits. For 
2005, the whiting fishery bycatch limits for the sectors identified 
Sec.  660.323(a) are 4.7 mt of canary rockfish and 212 mt of widow 
rockfish. For 2006, the whiting fishery bycatch limits are 4.7 mt of 
canary rockfish and 200 mt of widow rockfish.
* * * * *

Subpart G [Amended]

0
4. Tables 2a and 2b to part 660 subpart G are revised to read as 
follows:
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[FR Doc. 06-4738 Filed 5-19-06; 8:45 am]
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