[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Rules and Regulations]
[Pages 31874-31890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15840]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0809121213-9221-02]
RIN 0648-AX96


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) July 1, 2009. Comments on 
this final rule must be received no later than 5 p.m., local time on 
August 5, 2009.

ADDRESSES:  You may submit comments, identified by RIN 0648-AX96 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: Barry Thom, Acting Regional 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

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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 wish 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 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 2009-2010 groundfish harvest specifications and 
management measures published on December 31, 2008, (73 FR 80516). The 
final rule to implement the 2009-2010 specifications and management 
measures for the Pacific Coast Groundfish Fishery was published on 
March 6, 2009 (74 FR 9874). This final rule was subsequently amended by 
an inseason action on April 27, 2009 (74 FR 19011). These 
specifications and management measures are codified in the CFR (50 CFR 
part 660, subpart G).
    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 13-18, 2009, meeting in Spokane, 
Washington. The Council recommended adjustments to current groundfish 
management measures to respond to updated fishery information and other 
inseason management needs. The projected impacts to four of the seven 
overfished species (canary, widow, and darkblotched rockfishes and 
Pacific ocean perch) will increase slightly with the adjustments to the 
sablefish cumulative limits and Rockfish Conservation Area (RCA) 
boundary changes in the limited entry non-whiting trawl fishery north 
of 40 10.00' N. lat. However, these impacts, when combined with the 
impacts from all other fisheries, are not projected to exceed the 2009 
rebuilding OYs for these species. All other adjustments to non-trawl 
fishery management measures are not expected to result in greater 
impacts to overfished species than originally projected through the end 
of 2009. 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 
overfished stocks by remaining within their rebuilding OYs.

Limited Entry Non-Whiting Trawl Fishery Management Measures

    The most recently available fishery information indicates that 
catches of sablefish are lower than previously projected. Sablefish is 
a healthy target species that is caught coastwide. Based on the most 
recent fishery information (dated May 31, 2009), catch projections 
through the end of 2009 indicate that, absent regulatory changes, only 
3,004 mt of the 3,280 mt sablefish allocation will be harvested. The 
Council considered options for changes to management measures to allow 
additional access to sablefish in the limited entry non-whiting trawl 
fishery. Under current regulations, the trawl fishery south of 40[deg] 
10.00' N. lat. has greater opportunities for harvest during summer 
months than the trawl fishery north of 40[deg]10.00' N. lat. due to 
more favorable weather conditions. Because of these temporal and 
spatial differences in favorable weather, increases to trip limits and/
or RCA adjustments would be most useful for fisheries north of 40[deg] 
10.00' N. lat., allowing for additional harvest opportunities during 
brief times of good weather in the North.
    The Council considered trip limit increases and changes to RCA 
boundaries to allow additional harvest of this healthy stock, and the 
potential impacts to overfished species. The modest increases to trip 
limits, combined with opening the area shoreward of the RCA between the 
boundary line approximating the 75-fm (137-m) depth contour and the 
boundary line approximating the 100-fm (183-m) depth contour, result in 
slightly higher projected impacts to canary rockfish, Pacific Ocean 
perch, darkblotched rockfish, and widow rockfish than were projected 
for the limited entry non-whiting trawl fishery at the beginning of the 
year. However, even with the slight increase in impacts for these 
overfished species, when combined with the projected impacts from all 
other fisheries, none of the 2009 OYs for these rebuilding species are 
projected to be exceeded.
    Therefore, the Council recommended and NMFS is implementing the 
following increases to sablefish cumulative limits north of 40[deg] 
10.00' N. lat. on July 1, 2009: increase cumulative trip limits, caught 
using large and small footrope gear, from ``22,000 lb/2 months'' in 
July October to ``24,000 lb/ 2 months'' and increase limits from 
``18,000 lb/ 2 months'' in November-December to ``20,000 lb/ 2 
months''; increase cumulative trip limits, caught using selective 
flatfish trawl gear and multiple gears, from ``7,500 lb/ 2 months'' in 
July-October and ``5,000 lb/2 months'' in November-December to ``11,000 
lb/ 2 months''.
    The Council also recommended and NMFS is implementing the following 
changes to the trawl RCA boundary lines between Cape Alava (48 10.00' 
N. lat.) and 40[deg] 10.00' N. lat.: open the fishing area between the 
boundary line approximating the 75-fm (137-m) depth contour and the 
boundary line approximating the 100-fm (183-m) depth contour, by 
shifting the shoreward boundary of the non-trawl RCA boundary from the 
boundary line approximating the 75-fm (137-m) depth contour to the 
boundary line approximating the 100-fm (183-m) depth contour in this 
area, beginning on July 1, 2009.
    The Council also considered the most recently available fishery 
information which indicated that catch estimates of petrale sole 
through the end of the year (2,494 mt) were projected to exceed the 
2009 petrale sole OY of 2,433 mt. Petrale sole landing estimates 
indicate that the higher than expected catch was primarily attributed 
to the extended winter fishery in early 2009. During the 2009-2010 
specifications and management measures the January-February management 
measures that allow for additional access to winter petrale sole 
aggregations were extended to run through March. At the beginning of 
2009, projected catch was expected to remain below the 2009 petrale 
sole OY.

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However catches in January-March accrued more quickly than anticipated. 
Therefore, the Council considered available options to reduce petrale 
sole catches inseason to keep projected impacts below the 2009 petrale 
sole OY of 2,433 mt.
    In addition to inseason management to keep catches of petrale sole 
below the 2009 OY, the Council considered the preliminary results of 
the 2009 petrale sole stock assessment that indicates the stock is less 
healthy than previously thought. The preliminary stock assessment 
indicates that if the entire 2009 and 2010 OYs are taken, then the 
stock will start the 2011-2012 biennium in an overfished status, 
triggering a rebuilding plan and likely very large catch reductions for 
this very important commercial stock. Therefore, the Council identified 
a Point of Concern under the Groundfish FMP for petrale sole and NMFS 
will analyze potential management measures developed by the Groundfish 
Management Team (GMT), an advisory body to the Council, and issue a 
proposed rule for 2009-2010 to prevent petrale sole from becoming 
overfished in 2011. The intention is that, if necessary after 
consideration of the final stock assessment, public comment, and 
Council advice, the final rule will put in place measures to reduce 
petrale sole catch for November 1, 2009 through the remainder of the 
year and for 2010.
    To allow for additional management flexibility for a species with 
an identified Point of Concern, the Council recommended reductions in 
the petrale sole trip limits to prevent exceeding the 2009 petrale sole 
OY, for period 5 (September-October), rather than for period 6 
(November-December), as the GMT had initially recommended.
    Therefore, the Council recommended and NMFS is implementing the 
following decreases to petrale sole cumulative limits coastwide during 
period 5 (September-October): decrease cumulative trip limits, caught 
using large and small footrope gear north of 40[deg] 10.00' N. lat., 
from ``110,000 lb (49,895 kg) per 2 months, no more than 30,000 lb 
(13,608 kg) per 2 months of which may be petrale sole'' to ``110,000 lb 
(49,895 kg) per 2 months, no more than 5,000 lb (2,268 kg) per 2 months 
of which may be petrale sole; decrease cumulative trip 
limits, caught using selective flatfish trawl gears and multiple gears 
north of 40[deg] 10.00' N. lat., from ``90,000 lb (40,823 kg) per 2 
months, no more than 18,000 lb (8,165 kg) per 2 months of which may be 
petrale sole'' to ``90,000 lb (40,823 kg) per 2 months, no more than 
5,000 lb (2,268 kg) per 2 months of which may be petrale sole''; and 
decrease cumulative trip limits, caught using all trawl gears south of 
40[deg] 10.00' N. lat., from ``110,000 lb (49,895 kg) per 2 months, no 
more than 30,000 lb (13,608 kg) per 2 months of which may be petrale 
sole'' to ``110,000 lb (49,895 kg) per 2 months, no more than 5,000 lb 
(2,268 kg) per 2 months of which may be petrale sole''.

Limited Entry Fixed Gear and Open Access Fishery Management Measures

California Scorpionfish (Scorpaena guttata)

    California scorpionfish is a healthy stock that occurs primarily 
South of 36 N. lat. and is fished South of Point Conception (34[deg] 
27' N. lat.). The stock was last assessed in 2005, and is estimated to 
be above 40 percent of the unfished biomass. Total mortality of 
California scorpionfish has been well below the harvest specifications 
in recent years, and in 2007 only 68 mt of the 2007 California 
scoprionfish OY of 175 mt was harvested (39 percent of the OY). The 
Council considered increases to trip limits to allow additional harvest 
of this healthy stock, and the potential impacts to overfished species. 
Harvest of California scorpionfish occurs in shallow nearshore waters 
primarily south of 34[deg] 27.00' N. lat. and scorpionfish are caught 
in conjunction with other California State managed nearshore species. 
Nearshore fishery information indicates that there are relatively few 
interactions with overfished species at these depths and latitudes. 
Therefore, no impacts to overfished species are expected.
    Therefore, the Council recommended and NMFS is implementing trip 
limit changes for the limited entry fixed gear and open access fishery 
South of 40[deg] 10.00' N. lat. that increase California scorpionfish 
trip limits from 800 lb (363 kg) per 2 months in July-October and from 
600 lb (272 kg) per 2 months in November-December to 1,200 lb (544 kg) 
per 2 months from July-December.

Minor Nearshore and Black Rockfish Trip Limits North of 40[deg] 10.00' 
N. lat.

    Black rockfish is a nearshore rockfish species that was assessed in 
2007 as two separate stocks, and therefore the harvest specifications 
are divided at the Washington/Oregon border (46[deg] 16.00' N. lat.). 
The 2009 black rockfish OY for the area south of 46[deg] 16.00' N. lat. 
is 1,000 mt. Oregon and California work cooperatively to manage their 
nearshore fisheries (both commercial and recreational) to approach but 
not exceed the black rockfish OY in this area. The 2009 black rockfish 
commercial allocation for California is 185 mt. At their June meeting, 
the Council considered the most recent projected impacts to black 
rockfish in the commercial non-trawl fisheries off the California coast 
through the rest of the year. These estimates indicated that under the 
current trip limit structure, catch was estimated to be only 74 mt. 
However, recent landings information indicates that trip limits for 
minor nearshore rockfish and black rockfish were not being attained 
south of 40[deg] 10.00' N. lat.; and therefore increases in trip limits 
were only considered for the area between 42[deg] N. lat. and 40[deg] 
10.00' N. lat.
    The Council considered increases to black rockfish trip limits to 
allow additional harvest of this healthy stock, and the potential 
impacts to overfished species. An increase in trip limits is not 
anticipated to increase projected impacts to overfished species, 
because projected impacts to overfished species are calculated assuming 
that a much larger portion of the black rockfish allocation is 
harvested. The Council also considered the potential for increased 
impacts to blue rockfish if the trip limit were increased leaving the 
current minor nearshore rockfish and black rockfish trip limit 
structure as ``no more than 1,200 lb (544 kg) may be species other than 
black or blue rockfish''. There was a concern that increasing the 
overall limit, while leaving the trip limit structure to exclude both 
black and blue rockfish from the sub-limit, would increase blue 
rockfish catch and could potentially exceed the allocation, and in turn 
the OY for blue rockfish. The Council, however, received new 
information that the 20-fm (37-m) depth contour restriction has reduced 
nearshore fishery interactions with blue rockfish.
    Therefore, the Council recommended and NMFS is implementing trip 
limit changes for minor nearshore and black rockfish in the limited 
entry fixed gear and open access fishery between 42[deg] N. lat. and 
40[deg] 10.00' N. lat.: from ``6,000 lb (2,722 kg) per two months, no 
more than 1,200 lb (544 kg) of which may be species other than black or 
blue rockfish'' to ``7,000 lb (3,175 kg) per two months, no more than 
1,200 lb (544 kg) of which may be species other than black rockfish'' 
on July 1.

Limited Entry Fixed Gear Sablefish Daily Trip Limit Fishery

    Over the past several years, the amount of sablefish harvested in 
the limited entry fixed gear sablefish daily trip limit (DTL) fishery 
north of 36[deg] N. lat. has been lower than their sablefish 
allocation. The Council implemented a

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precautionary adjustment that moderately raised the daily, weekly and 
bi-monthly trip limits for sablefish in this fishery on May 1, 2009 (74 
FR 19011). At their June 13-18, 2009 meeting the Council considered 
industry requests to further increase trip limits in this fishery. The 
best and most recently available fishery information indicates that, 
even with the May 1, 2009 inseason adjustments, the entire sablefish 
allocation would not be harvested through the end of the year. To 
provide additional harvest opportunities for this healthy stock, the 
Council considered a modest increase to the two-month cumulative trip 
limit for sablefish in this fishery and the potential impacts on 
overall catch levels and overfished species. Trip limits in this 
fishery have been fairly stable over time; therefore some uncertainty 
surrounds how changes in trip limits will affect effort and landings. 
The Council also considered that the overall number of participants is 
restricted to vessels registered to a limited entry permit with the 
necessary gear and species endorsements. The effects of a small 
increase in trip limits in this fishery can be monitored, and any 
additional adjustments can be made to approach, but not exceed, the 
sablefish allocation for the limited entry fixed gear sablefish DTL 
fishery. This increase in trip limits is not anticipated to increase 
projected impacts to overfished species, because projected impacts to 
overfished species are calculated assuming that the entire sablefish 
allocation is harvested.
    Therefore, the Council recommended and NMFS is implementing trip 
limit changes for the limited entry fixed gear fishery north of 36 N. 
lat. that increase sablefish DTL fishery limits from ``500 lb (227 kg) 
per day, or 1 landing per week of up to 1,500 lb (680 kg), not to 
exceed 5,500 lb (2,495 kg) per 2 months'' to ``500 lb (227 kg) per day, 
or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 6,000 
lb (2,722 kg) per 2 months'' beginning in period 4, on July 1.

Open Access Sablefish DTL Fishery

    The most recent catch information from 2009 fisheries (May 31, 
2009) indicates that catches of sablefish north of 36[deg] N. lat. are 
lower than previously anticipated. Without any changes to current 
management measures, catches in this fishery through the end of the 
year are projected to be below the 2009 sablefish allocation. To 
provide additional harvest opportunities for this healthy stock, the 
Council considered increasing trip limits for sablefish in this fishery 
and the potential impacts on overall sablefish and overfished species 
catch levels. The Council considered modest increases to the weekly and 
bi-monthly limits for sablefish in the open access fishery in order to 
approach, but not exceed, the 2009 sablefish OY. This modest increase 
in trip limits is not anticipated to increase projected impacts to 
overfished species, because projected impacts to overfished species are 
calculated assuming that the entire sablefish allocation is harvested.
    Therefore, the Council recommended and NMFS is implementing an 
increase for the open access fishery trip limits north of 36 N. lat. 
that changes sablefish limits from ``300 lb (136 kg) per day, or 1 
landing per week of up to 800 lb (363 kg), not to exceed 2,400 lb 
(1,089 kg) per 2 months'' to ``300 lb (136 kg) per day, or 1 landing 
per week of up to 950 lb (431 kg), not to exceed 2,750 lb (1,247 kg) 
per 2 months'' beginning in period 4, on July 1.
    In addition to the revisions to Tables 3 (North), 3 (South), 4 
(North), 4 (South), 5 (North), and 5 (South) to part 660, subpart G 
described above, non-substantive technical edits are made to the RCA 
description in lines 1-6 and in footnotes 5 and 6 of these tables to 
clarify that the boundary lines of the RCA are described by latitude 
and longitude coordinates that, when connected in the order listed, 
create a line that approximates the depth contour. In most cases, the 
RCA is not defined by the depth contour itself. These technical edits 
were made at the request of NMFS Enforcement agents.

Classification

    These actions are taken under the authority of 50 CFR 660.370(c) 
and are exempt from review under Executive Order 12866.
    These inseason adjustments 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 the 30-day delay in 
effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule 
may become effective July 1, 2009, or as quickly as possible 
thereafter.
    The recently available data upon which these recommendations were 
based was provided to the Council, and the Council made its 
recommendations, at its June 13-18, 2009, meeting in Spokane, WA. The 
Council recommended that these changes be implemented on or as close as 
possible to July 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 in 
accordance with the FMP 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 to allow fishermen an 
opportunity to harvest higher limits in 2009 for sablefish, black 
rockfish, chilipepper rockfish and California scorpionfish beginning 
July 1, 2009, and to prevent exceeding the 2009 petrale sole OY by 
reducing cumulative limits in September-October. The reduction in 
cumulative limits for petrale sole in September-October will give 
additional management flexibility for petrale sole in the winter of 
2009 and beyond. The restructuring of the minor nearshore and black 
rockfish trip limit must be in place by July 1 or else a mid-period 
change would cause confusion for the fishermen and problems for 
enforcement.
    Modifications to the trawl RCA and increases to cumulative limits 
for: sablefish in the limited entry trawl fishery, the limited entry 
fixed gear fishery, and the open access fishery; chilipepper in the 
limited entry trawl fishery; and California scorpionfish and black 
rockfish in the limited entry fixed gear fishery and the open access 
fishery, are necessary to 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 July 1, 2009, so that fishermen are 
allowed increased opportunities to harvest available healthy stocks and 
meet the objective of

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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 July 1 allows additional harvest in 
fisheries that are important to coastal communities.
    Changes to petrale sole trip limits in the limited entry trawl 
fishery must be implemented in a timely manner by September 1, 2009, to 
prevent the total mortality of petrale sole from exceeding the 2009 OY. 
Failure to make this change to the petrale sole OY by September 1, 2009 
could reduce management flexibility in November-December 2009 and 
beyond by allowing too much harvest during the year and forcing 
potentially much larger reductions in cumulative limits during winter 
months.
    Allowing the current management measures to remain in place could 
jeopardize managers' ability 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 for petrale sole.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: June 29, 2009.
Alan D. Risenhoover,
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 is amended to read as follows:

    Authority: 16 U.S.C. 1801 et seq. and 16 USC 773 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. E9-15840 Filed 6-30-09; 4:15 pm]
BILLING CODE 3510-22-C