[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Rules and Regulations]
[Pages 79008-79023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30575]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 060824226-6322-02]
RIN 0648-AX46


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

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protecting overfished and depleted stocks.

DATES: Effective 0001 hours (local time) January 1, 2009. Comments on 
this final rule must be received no later than 5 p.m., local time on 
January 23, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-AX46 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 (enter ``N/A'' in the required 
fields, if you with to remain anonymous). 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 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); April 18, 2008 (73 FR 
21057); May 9, 2008 (73 FR 26325); July 24, 2008 (73 FR 43139); October 
7, 2008 (73 FR 58499), October 14, 2008 (73 FR 60642); and December 1, 
2008 (73 FR 72740).
    In June 2008, the Council recommended, and NMFS is working to 
implement, specifications and management measures for the 2009-2010 
biennium. Given the complexity of the biennial specifications and 
management measures, the need for EIS-related public review periods, 
and competing workloads, NMFS did not have enough time to publish a 
proposed rule, receive public comments, and implement a final rule by 
January 1, 2009. The Groundfish specifications and management measures 
are in effect until they are replaced; they do not expire on their own. 
Therefore, the current ABCs and OYs are in effect. Unless new 
management measures are in place by January 1, 2009, management 
measures that were in place for January February 2008 would remain in 
effect for January and February 2009. NMFS and the Council, therefore, 
developed management measures, to be implemented through a routine 
inseason adjustment, based on the most recent fishery information, to 
manage within the current OYs. All of the fishery mortality during 
January and February will be taken into account during the rest of the 
year, and will count toward the ABCs and OYs ultimately adopted for 
2009.
    The Council considered the most recent 2008 fishery information, 
relative to 2008 specifications, and recommended inseason modifications 
appropriate for January-February 2009 to start 2009 fisheries in a 
manner that would keep catches below 2008 OYs, but would allow 
additional harvest opportunities for species with catches tracking 
below projections during the 2008 fishery. The Council also considered 
that under both the current yelloweye rockfish rebuilding plan and the 
proposed 2009-2010 specifications the yelloweye rockfish OY in 2009 
would be lower than in 2008. Therefore the Council recommended inseason 
adjustments to fishery management measures that would prevent mortality 
in January and February that could risk exceeding the lower 2009 
yelloweye rockfish OY.
    No changes to fishery specifications, including acceptable 
biological catches (ABCs), optimum yields (OYs), and harvest guidelines 
(HGs) are made by inseason action, therefore the 2009 fishing year will 
begin with the same specifications that were in effect at the start of 
the 2008 fishing year. No changes to management measures are being made 
for fisheries that are closed or have extremely small amounts of 
fishing effort during the months of January and February, particularly 
recreational fisheries off Washington, Oregon and California; however, 
the titles for trip limit tables that are not being revised by this 
inseason action are re-titled to reflect their ongoing effectiveness.
    Thus, 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 November 2-7, 2008, meeting in San 
Diego, California. The Council recommended adjustments to January and 
February 2009 groundfish management measures to respond to updated 
fishery information. Management measures are designed to meet the 
Pacific Coast Groundfish FMP objective of achieving, to the extent 
possible, but not exceeding, OYs of target species, while fostering the 
rebuilding of overfished stocks by remaining within their rebuilding 
OYs.

Limited Entry Non-Whiting Trawl Fishery Management Measures

    At their November 2-7, 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 January-February 
2009 non-whiting trawl fishery management measures provide additional 
harvest opportunities in some areas for target species with 2008 
catches tracking behind projections, and reduce harvest opportunities 
for petrale sole as a precautionary measure to prevent the higher than 
expected catches of petrale sole that occurred in period 1 of 2008.
    The Council considered increases to trip limits for sablefish, 
shortspine thornyheads, and Dover sole, and the

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potential impacts on overall catch levels and overfished species. The 
most recently available information as of October 31, 2008, indicates 
that: 84 percent (2,356 mt out of the 2,810 mt OY) of the sablefish OY; 
70 percent (1,148 mt out of the 1,634 mt OY) of the shortspine 
thornyhead OY north of 34[deg]27.00 N. lat.; and 65 percent (10,708 mt 
out of the 16,500 mt OY) of the coastwide Dover sole OY, have been 
taken through November 4, 2008. These projections are below the 
anticipated catch projections through October, and starting the 2009 
trawl fishery under 2008 cumulative limits is projected to prevent the 
fishery from attaining the OYs for these species, as the most recently 
available information indicates was likely in 2008.
    Increases in cumulative limits in the limited entry trawl fishery 
were considered coastwide for all trawl gear types, except the 
selective flatfish trawl fishery north of 40 10.00' N. lat. Increases 
in selective flatfish trawl cumulative limits were not considered due 
to the associated projected increase in impacts to canary rockfish, 
which must be managed to the 2008 harvest specifications, and a canary 
rockfish OY of 44 mt. Canary rockfish are primarily encountered in the 
nearshore area, and selective flatfish trawl gear is required to 
prosecute the groundfish fishery in that shoreward area of the trawl 
RCA north of 40[deg] 10.00' N. lat.
    Increases in cumulative limits in the limited entry trawl fishery 
were considered coastwide for all target species with 2008 catches 
tracking below their respective 2008 OYs. However, providing additional 
fishing opportunities for some of these species was not possible, due 
to the associated increase in impacts to canary rockfish, and the need 
to manage the fishery within the 2008 harvest specifications for canary 
rockfish.
    Increases to sablefish, shortspine thornyhead, and Dover sole 
cumulative limits are expected to increase overall catch levels 
compared to the 2008 season, but those increases are predicted to be 
within the continuing 2008 OYs for these species in the 2009 fishery, 
and are not expected to result in greater than projected overfished 
species impacts in the 2009 fishery.
    Therefore, the Council recommended and NMFS is implementing the 
following trip limit changes for the limited entry trawl fishery: (1) 
North of 40[deg] 10.00' N. lat., increase sablefish limits using large 
and small footrope gear from 14,000 lb (6,350 kg) per 2 months to 
18,000 lb (8,165 kg) per 2 months during period 1 (January-February); 
(2) between 40[deg] 10.00' N. lat. and 38[deg] N. lat., increase 
sablefish limits from 14,000 lb (6,350 kg) per two months to 20,000 lb 
(9,072 kg) per two months during period 1 (January-February); (3) 
increase shortspine thornyhead limits for all gear types, except for 
selective flatfish trawl gear north of 40[deg] 10.00' N. lat., from 
12,000 lb (5,443 kg) per two months to 17,000 lb (7,711 kg) per two 
months during period 1 (January-February); and (4) increase Dover sole 
limits for all gear types, except for selective flatfish trawl gear 
north of 40[deg] 10.00' N. lat., from 80,000 lb (36,287 kg) per two 
months to 110,000 lb (49,895 kg) per two months during period 1 
(January-February).
    During the months of January and February 2008, catches of petrale 
sole in the limited entry trawl fishery were higher than expected, and 
approximately 40 percent of the 2008 petrale sole OY was taken during 
those two months, primarily north of 40[deg] 10.00' N. lat. In response 
to projections that the 2008 petrale sole OY could be exceeded if the 
higher than projected catches continued throughout 2008, the Council 
recommended, and NMFS implemented, precautionary reductions in petrale 
sole cumulative limits in August 2008 (73 FR 43139, July 24, 2008). The 
higher than projected catches did not continue, so cumulative limits 
for petrale sole were raised incrementally toward the end of the year 
to allow catches to approach but not exceed the 2008 petrale sole OY 
(73 FR 60642, October 14, 2008; 73 FR 72740, December 1, 2008). In 
considering inseason adjustments for the beginning of the 2009 fishery, 
the Council took into account the high petrale catches observed in 
period 1 of 2008, and recommended decreasing petrale sole cumulative 
limits in period 1 2009 for some gear types, as a precautionary 
measure. Decreases in petrale sole cumulative trip limits were analyzed 
for vessels using large and small footrope trawl gear north of 40[deg] 
10.00' N. lat. Changes in cumulative limits for vessels using selective 
flatfish trawl gear north of 40[deg] 10.00' N. lat. and all trawl gears 
South of 40[deg] 10.00' N. lat. were considered, but not recommended by 
the Council due to the need to keep canary rockfish impacts within the 
2008 canary rockfish OY.
    Based on these analyses above, the Council recommended and NMFS is 
implementing a decrease in the limited entry trawl fishery cumulative 
limits, during Period 1, effective January 1: for petrale sole taken 
with large and small footrope gears north of 40[deg] 10.00' N. lat. 
from 40,000 lb (8,144 kg) per two months to 25,000 lb (11,340 kg) per 
two months.

Limited Entry Fixed Gear and Open Access Fishery Management Measures

    The 2008 yelloweye rockfish OY is 20 mt. This inseason action only 
modifies management measures for the beginning of 2009, and does not 
propose to change specifications. However, the status quo rebuilding 
plan adopted in the Pacific Coast Groundfish Fishery Management Plan 
(FMP) Amendment 16-4 (70 FR 78638, December 29, 2006) specifies a 
harvest rate ramp-down strategy that would decrease the yelloweye 
rockfish OY to 17 mt in 2009. Therefore, this inseason action modifies 
management measures for fisheries that will have impacts on yelloweye 
rockfish in January-February 2009. Limited entry and open access fixed 
gear fisheries have the highest commercial yelloweye rockfish impacts, 
and operate early in the calendar year, unlike recreational fisheries, 
which occur later. Leaving the same management measures in place from 
January-February 2009 that were in effect during that time period in 
2008 would risk higher yelloweye rockfish impacts than could be 
accommodated under the lower 2009 yelloweye rockfish OY.
    The Council considered the most recently available analysis of 
observer data from the West Coast Groundfish Observer Program, which 
indicates higher bycatch rates of yelloweye rockfish in limited entry 
and open access fixed gear fisheries in some areas seaward and 
shoreward of the non-trawl RCA north of 40[deg] 10.00' N. lat. To 
reduce early 2009 fishery impacts on yelloweye rockfish, the Council 
considered expanding the non-trawl RCA to encompass these areas of 
higher yelloweye rockfish bycatch, to minimize the risk of more severe 
restrictions later in 2009 to keep total mortality of yelloweye 
rockfish below the 2009 yelloweye rockfish OY of 17 mt.
    Based on the analysis described above, the Council recommended and 
NMFS is implementing an expansion of the non-trawl RCA as follows: (1) 
a shift in the seaward boundary of the non-trawl RCA from the boundary 
line approximating the 100-fm (183-m) depth contour to the boundary 
line approximating the 125-fm (229-m) depth contour between Cascade 
Head (45[deg] 03.83' N. lat.) and Cape Blanco (42[deg] 50.00' N. lat.); 
and (2) a shift in the shoreward boundary of the non-trawl RCA from the 
boundary line approximating the 30-fm (55-m) depth contour to the 
boundary line approximating the 20-fm (37-m) depth contour between Cape 
Blanco (42[deg] 50.00' N. lat.) and 40[deg] 10.00' N. lat.

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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 groundfish management 
measures under 5 U.S.C. 553(b) because notice and comment would be 
impracticable and contrary to the public interest. Also for the same 
reasons, NMFS finds good cause to waive 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 January 1, 2009.
    The recently available data upon which these recommendations were 
based was provided to the Council, and the Council made its 
recommendations, at its November 2-7, 2008, meeting in San Diego, 
California. The Council recommended that these changes be implemented 
on or as close as possible to January 1, 2009. There was not sufficient 
time after that meeting to draft this document and undergo proposed and 
final rulemaking before these actions need to be in effect. For the 
actions to be implemented in this final rule, affording the time 
necessary for prior notice and opportunity for public comment would 
prevent the Agency from managing fisheries using the best available 
science to approach without exceeding the OYs for federally managed 
species and to rebuild overfished stocks in accordance with the FMP 
rebuilding plans and applicable laws. The adjustments to management 
measures in this document affect commercial fisheries off Washington, 
Oregon, and California. These adjustments to management measures must 
be implemented in a timely manner, by January 1, 2008, to: allow 
fishermen an opportunity to harvest higher cumulative limits in the 
beginning of 2009 for stocks that had lower than expected catches in 
the 2008 fishery, relative to 2008 harvest specifications; reduce 
catches of petrale sole as a precautionary measure early in the 2009 
fishery, based on fishery information indicating that catches early in 
the 2008 fishery were higher than expected; and to reduce impacts on 
yelloweye rockfish in early 2009 so that additional restrictions on 
fisheries that encounter yelloweye rockfish will not have to be made 
later in the year.
    Increases to the sablefish, shortspine thornyhead, and Dover sole 
cumulative limits in the limited entry trawl fishery relieve a 
restriction by allowing fishermen increased opportunities to harvest 
available healthy stocks while staying within the OYs for these 
species. These changes must be implemented in a timely manner by 
January 1, 2009, 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 January 1 allows additional harvest in 
fisheries that are important to coastal communities.
    Reductions to petrale sole cumulative limits in the limited entry 
trawl fishery are needed to prevent higher than expected catches in 
January-February 2009, and to allow for fishing opportunities for 
healthy target species to be extended as long as practicable through 
the fishing year. These changes must be implemented in a timely manner 
by January 1, 2009, to 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 January 1 will minimize the risk of more severe 
fishery restrictions later in 2009.
    Changes to the non-trawl RCA boundaries are needed to reduce 
fishery impacts on yelloweye rockfish, a bycatch species primarily 
encountered in non-trawl fisheries, and to keep 2009 total mortality of 
yelloweye rockfish within the rebuilding targets for yelloweye 
rockfish. Failing to make these changes in a timely manner by January 
1, 2009, would risk exceeding the 2009 yelloweye rockfish rebuilding 
plan OY of 17 mt.
    Allowing the January February 2008 management measures to be in 
place during January February 2009 could jeopardize managers' ability: 
to keep 2009 landings within proposed rebuilding targets for some 
overfished species; and to provide for year-round harvest opportunities 
for healthy stocks. Delaying these changes would keep management 
measures in place that are not based on the best available data which 
could deny fishermen access to available harvest. Such delay would 
impair achievement of the Pacific Coast Groundfish FMP objectives of 
providing for year-round harvest opportunities, extending fishing 
opportunities as long as practicable during the fishing year, or 
staying within OYs.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: December 17, 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), 5 (North), and 5 
(South) to part 660, subpart G are revised to read as follows:
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[FR Doc. E8-30575 Filed 12-23-08; 8:45 am]
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