[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Rules and Regulations]
[Pages 43139-43152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16986]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 060824226-6322-02]
RIN 0648-AX02


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.

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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: 206-526-6736, 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: 206-526-6147, fax: 206-526-6736 and e-mail 
[email protected].

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

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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[deg]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[deg]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[deg]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[deg]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[deg]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[deg]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.

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    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[deg] 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[deg] 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[deg] 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[deg] 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[deg] 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[deg] 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[deg] 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[deg] 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

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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[deg] 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.

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. Tables 3 (North), 3 (South), 4 (North), 4 (South), and 5 (South) to 
part 660 subpart G are revised to read as follows:
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[FR Doc. E8-16986 Filed 7-23-08; 8:45 am]
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