[Federal Register Volume 74, Number 207 (Wednesday, October 28, 2009)]
[Rules and Regulations]
[Pages 55468-55481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25984]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0809121213-9221-02]
RIN 0648-AY30


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) October 28, 2009 through 
December 31, 2009. Comments on this final rule must be received no 
later than 5 p.m., local time on November 27, 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: No comments will be posted for public viewing until 
after the comment period has closed. 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.

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    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments 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 
inseason actions on April 27, 2009 (74 FR 19011) and July 6, 2009 (74 
FR 31874). 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 September 12-17, 2009, 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. The projected impacts 
to three of the seven overfished species (canary and darkblotched 
rockfishes and Pacific ocean perch) will increase slightly with the 
adjustments to the cumulative limits in the limited entry non-whiting 
trawl fishery north of 40[deg] 10.00' N. lat. and with the adjustments 
to the cumulative limits in the limited entry fixed gear and open 
access fisheries for deeper nearshore rockfish south of 40[deg] 10.00' 
N. lat. These impacts, however, when combined with the impacts from all 
other fisheries, are not projected to exceed the 2009 rebuilding OYs 
for these species. The other adjustments to 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 and arrowtooth flounder are lower than previously 
projected. Sablefish and arrowtooth flounder are both healthy target 
species that are caught coastwide. Based on the most recent fishery 
information (dated August 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 would be harvested and less than 50 
percent of the 2009 arrowtooth flounder OY of 11,267 mt would be 
harvested. The Council considered options for changes to management 
measures to allow additional access to sablefish and to reduce 
discarding of arrowtooth flounder in the limited entry non-whiting 
trawl fishery.
    The Council also made a final recommendation for reducing catches 
of petrale sole in November and December 2009 as interim management 
measures, as a result of a new, more pessimistic stock assessment. See 
the proposed rule at 74 FR 46714 (September 11, 2009). These measures, 
which will reduce cumulative limits for petrale sole and expand the RCA 
during period 6 (November-December), will be implemented in a separate 
rulemaking, after consideration of public comments received on the 
proposed rule. Reducing catches of petrale sole in 2009 is projected to 
reduce impacts to co-occurring overfished species (darkblotched 
rockfish and Pacific Ocean perch).
    Reducing fishing opportunities for petrale sole is anticipated to 
reduce impacts to darkblotched rockfish, an overfished species that is 
part of the slope rockfish complex. With the reduced catch of petrale 
sole and absent any other action, only 92 mt of the 1160 mt slope 
rockfish complex northern OY was projected to be caught through the end 
of the year. In order to provide some additional fishing opportunities, 
given the severe restrictions being implemented for petrale sole in 
November-December, the Council considered increasing trip limits for 
the slope rockfish complex. Increases to slope rockfish trip limits 
were not considered for the area south of 38 N. lat. because the 
southern trip limit is much larger and vessels have not been attaining 
that limit under status quo conditions.
    The modest increases to slope fishing activities, including slope 
rockfish trip limits, and sablefish and arrowtooth flounder trip 
limits, result in slightly higher projected impacts to Pacific Ocean 
perch (approximately 0.7 mt higher) and darkblotched rockfish 
(approximately 1.7 mt higher) than were projected for the limited entry 
non-whiting trawl fishery prior to inseason action. 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 cumulative limits on October 28, 2009 through 
December 31, 2009.: increase sablefish cumulative limits, caught with 
large and small footrope trawl gears north of 40[deg] 10' N. lat. and 
with all trawl gears south of 40[deg] 10' N. lat., to ``27,000 lb 
(12,247 kg) per 2 months''; increase arrowtooth flounder cumulative 
trip limits, caught using large and small footrope gear North of 
40[deg] 10' N. lat., from ``150,000 lb (6,804 kg) per 2 months'' to 
``180,000 lb (81,647 kg) per 2 months''; increase slope rockfish 
cumulative limits, caught with all trawl gears north of 40[deg] 10' N. 
lat., from ``1,500 lb (680 kg) per 2 months'' to ``4,000 lb (1,814 kg) 
per 2 months''; and increase slope rockfish cumulative limits, caught 
with all trawl gears between 40[deg] 10' N. lat. and 38 N. lat. from 
``10,000 lb (4,536[deg] kg) per 2 months'' to ``15,000 lb (6,804 kg) 
per 2 months'' in period 5 (September-October) and from ``15,000 lb 
(6,804 kg) per 2 months'' to ``18,000 lb (8,165 kg) per 2 months'' in 
period 6 (November-December).

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Limited Entry Fixed Gear and Open Access Fishery Management Measures

Deeper Nearshore Trip Limits South of 40[deg] 10.00' N. lat.

    South of 40[deg] 10' N. lat., the deeper nearshore trip limit is 
comprised of black rockfish, blue rockfish and deeper nearshore 
rockfish complex species. At their September meeting, the Council 
considered increasing the deeper nearshore trip limits to allow 
industry to land additional catch of these species and complexes 
because projected catches through the end of the year are much lower 
than their respective harvest guidelines (HGs). The Council considered 
how increases in this bi-monthly cumulative limit would affect the 
harvest level of the target species, as well as the potential for 
increased catch of co-occurring overfished species.
    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. The increase that the Council considered for deeper 
nearshore rockfish trip limits is not expected to exceed the 2009 black 
rockfish California harvest guideline of 420 mt.
    The first blue rockfish stock assessment on the west coast was 
conducted in 2007 for the portion of the stock occurring in waters off 
California north of Pt. Conception (36[deg] N. lat.). California 
manages blue rockfish as part of the minor nearshore rockfish complex, 
but with a species specific harvest guideline. Potential increases in 
blue rockfish landings as a result of increasing the deeper nearshore 
trip limits are not expected to exceed California's 2009 blue rockfish 
harvest guideline of 220 mt.
    The trip limit increase that the Council considered for the deeper 
nearshore rockfish complex is not expected to cause the fishery to 
exceed the southern minor nearshore rockfish OY.
    At their September meeting, the Council considered the most recent 
projected impacts to black rockfish, blue rockfish, and minor nearshore 
rockfish (both deeper and shallow nearshore) in the commercial non-
trawl fisheries off the California coast through the rest of the year. 
The Council considered increases to the deeper nearshore rockfish trip 
limits south of 40[deg] 10' N. lat. to allow additional harvest of 
these target stocks, and took into account the potential impacts to 
overfished species. The modest increases to deeper nearshore rockfish 
trip limits result in slightly higher projected impacts to canary 
rockfish than were projected for the southern non-trawl commercial 
fishery prior to inseason action. However, even with the slight 
increase in impacts for this overfished species, when combined with the 
projected impacts from all other fisheries, the 2009 OY for canary 
rockfish, a rebuilding species, is not projected to be exceeded.
    Therefore, the Council recommended and NMFS is implementing trip 
limit changes for deeper nearshore rockfish in the limited entry fixed 
gear and open access fishery south of 40[deg] 10.00' N. lat.: from 
either ``600 lb (272 kg) per 2 months'' or ``700 lb (318 kg) per 2 
months'' to ``800 lb (36[deg]3 kg) per 2 months'' beginning on October 
28, 2009 through December 31, 2009..

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 recommended and NMFS implemented a 
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 meeting the Council recommended and NMFS 
implemented a second precautionary adjustment that modestly increased 
the bi-monthly limit for July-October (July 6, 2009, 74 FR 31874). At 
their September 12-17, 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 and July 6, 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 weekly limit and 
two-month cumulative trip limit and eliminating the daily 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 
endorsement. 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. Increases in projected impacts to 
co-occurring target species are not anticipated to exceed OYs.
    Therefore, the Council recommended and NMFS is implementing trip 
limit changes for the limited entry fixed gear fishery north of 36[deg] 
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 6,000 lb (2,722 kg) per 2 months'' in period 5 (September-
October) and 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'' in period 6 (November-December) to ``2,000 lb (907 kg) per 
week, not to exceed 7,000 lb (3,175 kg) per 2 months'' beginning on 
October 28, 2009 through December 31, 2009.

Open Access Sablefish DTL Fishery

    The most recent catch information from 2009 fisheries (August 31, 
2009) indicates that catches of sablefish south 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 
limit and elimination of the daily trip limit for sablefish in the 
limited entry fixed gear fishery south of 36[deg] N. lat. in order to 
approach, but not exceed, the 2009 sablefish OY. Elimination of the 
daily limit south of 36[deg] N. lat. was recommended for the same 
reasons as described above for the fishery north of 36[deg] N. lat. 
Removal of the daily trip limit in the limited entry fishery south of 
36[deg] N. lat. is not anticipated to cause the fishery to exceed the 
2009 sablefish allocation, for the area, of 351 mt. The daily limit was 
put in place when trip limits were the same for the limited entry fixed 
gear fishery and the open access fishery. The open access fishery 
relied on the daily limit to control effort. That same concern does not 
exist for a limited entry fishery. This modest increase in trip limits 
and removal of the daily limit is not anticipated to increase projected 
impacts to overfished species, because projected impacts to overfished 
species are calculated assuming that the entire sablefish

[[Page 55471]]

allocation is harvested. Increases in projected impacts to co-occurring 
target species are not anticipated to exceed OYs.
    Therefore, the Council recommended and NMFS is implementing trip 
limit changes for the limited entry fixed gear fishery south of 36[deg] 
N. lat. that increase sablefish DTL fishery limits from ``40[deg]0 lb 
(181 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg)'' to 
``3,000 lb (1,36[deg]1 kg) per week'' beginning on October 28, 2009 
through December 31, 2009.
    The most recent catch information from 2009 fisheries (August 31, 
2009) indicates that catches of sablefish south 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 increases to the weekly limit and 
eliminating the bi-monthly limits for sablefish in the open access 
fishery in order to approach, but not exceed, the 2009 sablefish OY. 
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 an 
increase for the open access fishery trip limits south of 36[deg] N. 
lat. that changes sablefish limits from ``40[deg]0 lb (181 kg) per day, 
or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 8,000 
lb (3,629 kg) per 2 months'' to ``40[deg]0 lb (181 kg) per day, or 1 
landing per week of up to 2,500 lb (1,134 kg) beginning on October 28, 
2009 through December 31, 2009.

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 quickly as possible in October.
    The recently available data upon which these recommendations were 
based was provided to the Council, and the Council made its 
recommendations, at its September 12-17, 2009, meeting in Foster City, 
California. The Council recommended that these changes be implemented 
on or as close as possible to October 15, 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 
arrowtooth flounder, slope rockfish, sablefish, deeper nearshore 
rockfish, black rockfish, and blue rockfish in the last two fishing 
periods of the year (September-October and November-December).
    Increases to cumulative limits for: sablefish in the limited entry 
trawl fishery, the limited entry fixed gear fishery, and the open 
access fishery; arrowtooth flounder and slope rockfish in the limited 
entry trawl fishery; and blue rockfish, black rockfish and deeper 
nearshore rockfish in the limited entry fixed gear fishery and the open 
access fishery allow 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, as early 
as possible in October 2009, so that fishermen are allowed increased 
opportunities to harvest available healthy stocks at the end of the 
fishing year, 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 in October allows additional harvest in fisheries that are 
important to coastal communities.
    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 objective of approaching, but not 
exceeding, OYs.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: October 22, 2009.
Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.

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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 revised 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), and 5 (South) to 
part 660, subpart G are revised to read as follows:
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[FR Doc. E9-25984 Filed 10-27-09; 8:45 am]
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