[Federal Register Volume 74, Number 212 (Wednesday, November 4, 2009)]
[Rules and Regulations]
[Pages 57117-57124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26543]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0907301200-91380-02]
RIN 0648-AY07


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2009 Management Measures for Petrale 
Sole

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

ACTION:  Final rule.

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SUMMARY:  This final rule revises the November-December 2009 management 
measures for petrale sole taken in the U.S. exclusive economic zone 
(EEZ) off the coasts of Washington, Oregon, and California.

DATES: Effective November 1, 2009.

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 (the Council) website at http://www.pcouncil.org/. An Environmental Assessment (EA) was prepared for 
the revisions to the 2009-2010 harvest specifications and management 
measures for petrale sole and canary rockfish. A copy of the EA is 
available online at http://www.nwr.noaa.gov/.

Background

    The 2009 and 2010 Acceptable Biological Catches (ABCs), Optimal 
Yields (OYs) and Harvest Guidelines (HGs) for Pacific coast groundfish 
species were established in the final rule for the 2009-2010 groundfish 
harvest specifications and management measures (74 FR 9874, March 6, 
2009). On September 11, 2009, NMFS proposed taking interim measures for 
two species during 2009 and 2010 (74 FR 46714). Those changes were 
proposed because the PFMC received new stock assessments in June 2009 
that indicated the stocks are in worse shape than we had thought at the 
beginning of 2009. This final rule implements only a portion of the 
action described in the proposed rule; specifically, interim measures 
for petrale sole to reduce catches in 2009 by implementing more 
restrictive management measures. The proposed rule for this action 
included other interim changes for petrale sole and canary rockfish in 
2010. Those changes will be considered by the Council at its November 
2009 meeting in Costa Mesa, California, and if action is recommended by 
the Council and approved by NMFS it will be implemented in a separate 
final rule, likely issued in December 2009, pending a final 
recommendation by the Council.
    This final action is taken to respond to the most recently 
available stock status information during the remainder of 2009, while 
NMFS and the Council consider the results of new rebuilding analyses 
for potential additional action for 2010, and they complete the stock 
assessments, revised rebuilding plans, Environmental Impact Statement 
(EIS), and full rulemaking for the 2011 and 2012 specifications and 
management measures for the entire groundfish fishery.
    The interim measures being implemented in this rule, in combination 
with the existing regulations, are designed to prevent the stock status 
of petrale sole from falling below the overfished threshold at the 
beginning of 2011, or to speed the rebuilding of petrale sole if it is 
found in near-future evaluations to be overfished.
    The Council's policies on setting ABCs, OYs, other harvest 
specifications, and management measures are discussed in the preamble 
to the December 31, 2008, proposed rule (73 FR 80516) for 2009-2010 
harvest specifications and management measures.
    Routine management measures, as described in the preamble to the 
2009-2010 harvest specifications and management measure proposed rule 
(73 FR 80516, December 31, 2008), will continue to be adjusted to 
modify fishing behavior during the fishing year to allow a harvest 
specification to be achieved, or to prevent a harvest specification 
from being exceeded.
    Additional information regarding considerations for interim changes 
to 2009 management measures for petrale sole can be found in the 
preamble to the proposed rule (74 FR 46714, September 11, 2009).

Comments and Responses

    During the comment period for the proposed rule, NMFS received two 
letters of comment. The first was from the Department of the Interior, 
stating that it had no comment. The second was from Oceana, an 
environmental advocacy group, concerning the most recent petrale sole 
stock assessment and supporting interim measures to reduce petrale sole 
catch. Oceana's comments primarily focused on biological reference 
points for petrale sole that the Council will be considering at its 
November 2009 meeting. NMFS forwarded Oceana's letter of comment to the 
Council so that it may consider these comments prior to its November 
2009 decision. Oceana also expressed its support for reducing trip 
limits and implementing area closures to reduce coastwide petrale sole 
catch levels for the remainder of 2009.

Changes from the Proposed Rule

    The proposed rule included reductions to 2010 harvest 
specifications, specifically OYs, for canary rockfish and petrale sole. 
The proposed rule also included a description of management measures 
that would be implemented to approach, but not exceed, those new, 
lower, 2010 OYs. At its September meeting, the Council chose to 
postpone its final decisions for interim 2010 harvest specifications 
and management measures for petrale sole and canary rockfish, so that 
the new rebuilding analyses could be completed and considered prior to 
making its final recommendation. The Council will consider the 
rebuilding analyses and public comments when making its final 
recommendation on the proposed interim 2010 harvest specifications and 
management measures at its November meeting. Therefore, this final rule 
implements only the 2009 portion of the petrale sole interim measures 
that were included in the proposed rule.
    At its September 2009 meeting, the Council recommended routine 
adjustments to fishery management measures for arrowtooth flounder, 
slope rockfish and sablefish in the limited entry bottom trawl fishery. 
Those measures were implemented in an October 28, 2009 final rule (74 
FR 55468), and are reflected in the attached trip limit tables 3 
(North) and 3 (South).

Classification

    The Administrator, Northwest Region, NMFS, has determined that the 
revisions to 2009 management measures for petrale sole, which this 
final rule implements, are consistent with the national standards of 
the Magnuson-Stevens Act, 16 U.S.C. Sec. Sec.  1361-1423h, and other 
applicable laws.

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    An EA was prepared for the revisions to the 2009-2010 harvest 
specifications and management measures for petrale sole and canary 
rockfish. A copy of the EA is available online at http://www.nwr.noaa.gov/. NMFS issued a Finding of No Significant Impact 
(FONSI) for this action. A copy of the FONSI is available from NMFS 
(see ADDRESSES).
    NMFS utilizes the most recently available fishery information, 
scientific information, and stock assessments, to implement 
specifications and management measures biennially. Generally these 
management measures are implemented on January 1 of odd numbered years. 
The 2009-2010 biennial specifications and management measures were 
developed using the most recently available scientific information, 
stock assessments, and fishery information available at the time, and 
were implemented on March 1, 2009. A new, more pessimistic, stock 
assessment for petrale sole became available to the Council in June 
2009. In response to this assessment, the Council and NMFS took 
immediate action to reduce catches of petrale sole in order to 
facilitate rebuilding if the stock is declared overfished. The Council 
recommended, and NMFS published, a proposed rule on September 11, 2009, 
to, among other things, reduce harvest of petrale sole in November and 
December 2009. The comment period closed on October 13, 2009. In order 
that this final rule adjusting management measures for petrale sole in 
2009 may become effective November 1, 2009, and thus protect the 
petrale sole in 2009, NMFS finds good cause to waive the 30 day delay 
in effectiveness pursuant to 5 U.S.C. 553(d)(3). Leaving the 2009 
management measures that directly affect catch of petrale sole in place 
could cause harm to petrale sole, because those management measures are 
not based on the most current scientific information. The commercial 
fishery is managed with two-month cumulative limits, so even a short 
delay in effectiveness could allow the fleets to harvest the entire 
period six (6) (November-December) two-month limit before the new, more 
restrictive, measures are effective. Delaying the effectiveness of this 
rule would also be confusing to the public, because with delayed 
effectiveness this rule would change trip limits and closed areas in 
the midst of the two-month November-December cumulative trip limit 
period. Finally, delaying the effectiveness of these measures could 
require emergency action in 2010 to reduce petrale sole catch, 
including possible fishery closures, to make up for harvest that would 
be allowed under the current 2009 management measures. Thus, a delay in 
effectiveness could ultimately cause economic harm to the fishing 
industry and associated fishing communities. These reasons constitute 
good cause under authority contained in 5 U.S.C. 553(d)(3), to 
establish an effective date less than 30 days after date of 
publication.
    The Council considered alternatives for revising the 2009-2010 
harvest specifications and management measures for petrale sole. The 
range of alternatives considered included more restrictive management 
measures to reduce catch of petrale sole in 2009, new harvest 
specifications for petrale sole in 2010 and management measures 
necessary to keep projected impacts to petrale sole below the new 2010 
OY. As described above in Changes from the Proposed Rule, only the 
interim changes to management measures during the end of 2009 are 
implemented in this final rule, due to the Council's decision to 
postpone a final recommendation for 2010 until the rebuilding analysis 
for petrale sole was available.
    NMFS has determined that this rule is not significant for purposes 
of Executive Order 12866.
    NMFS prepared a final Regulatory Flexibility Analysis (FRFA) as 
part of the regulatory impact review. Among other things, the FRFA 
incorporates the Initial Regulatory Flexibility Analysis (IRFA) and a 
summary of the analyses completed to support the action. A copy of the 
FRFA is available from NMFS (see ADDRESSES). To summarize the FRFA, per 
the requirements of 5 U.S.C. Sec.  604(a), most of the estimated 2,600 
entities that harvest groundfish are considered small businesses under 
the RFA. Entities involved in the fishery that are not small businesses 
include the catcher vessels that also fish off Alaska, some shoreside 
processors, and all catcher-processors and motherships (less than 30) 
that are affiliated with larger processing companies or large 
international seafood companies. Although this rule will reduce the 
overall take and per vessel take of petrale sole, the total reduction 
in the catch level of petrale sole for the remainder of 2009 is 
relatively low, such that there are no significant economic impacts on 
small entities as the result of this rule. However, in order to 
mitigate against the effect of lower petrale sole catches this year, 
additional opportunities for trawlers to harvest arrowtooth flounder, 
slope rockfish, and sablefish are being provided under a separate 
rulemaking. These are species where additional harvest amounts can be 
accommodated without exceeding an OY.
    There are no reporting, recordkeeping or other compliance 
requirements in this final rule.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.
    NMFS issued Biological Opinions under the Endangered Species Act 
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects 
of the Pacific Coast groundfish fishery management plan (FMP) fisheries 
on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River 
fall, upper Columbia River spring, lower Columbia River, upper 
Willamette River, Sacramento River winter, Central Valley spring, 
California coastal), coho salmon (Central California coastal, southern 
Oregon/northern California coastal), chum salmon (Hood Canal summer, 
Columbia River), sockeye salmon (Snake River, Ozette Lake), and 
steelhead (upper, middle and lower Columbia River, Snake River Basin, 
upper Willamette River, central California coast, California Central 
Valley, south/central California, northern California, southern 
California). These biological opinions concluded that implementation of 
the FMP for the Pacific Coast groundfish fishery was not expected to 
jeopardize the continued existence of any endangered or threatened 
species under the jurisdiction of NMFS, or result in the destruction or 
adverse modification of critical habitat.
    NMFS reinitiated a formal Section 7 consultation under the ESA in 
2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. Also in 2005, new data from the West 
Coast Groundfish Observer Program became available, allowing NMFS to 
complete an analysis of salmon take in the bottom trawl fishery.
    NMFS prepared a Supplemental Biological Opinion dated March 11, 
2006, which addressed salmon take in both the Pacific whiting midwater 
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental 
Biological Opinion, NMFS concluded that incidental take of salmon in 
the groundfish fisheries is within the overall limits articulated in 
the Incidental Take Statement of the 1999 Biological Opinion. The 
groundfish bottom trawl limit from that opinion was 9,000 fish 
annually. NMFS will continue to monitor and collect data to analyze 
take levels. NMFS also reaffirmed its prior determination that 
implementation of the Groundfish FMP

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is not likely to jeopardize the continued existence of any of the 
affected ESUs.
    Lower Columbia River coho were recently listed (70 FR 37160, June 
28, 2005) and Oregon Coastal coho were recently relisted (73 FR 7816, 
February 11, 2008) as threatened under the ESA. The 1999 biological 
opinion concluded that the bycatch of salmonids in the Pacific whiting 
fishery were almost entirely Chinook salmon, with little or no bycatch 
of coho, chum, sockeye, and steelhead. The Southern Distinct Population 
Segment (DPS) of green sturgeon were also recently listed as threatened 
under the ESA (71 FR 17757, April 7, 2006). As a consequence, NMFS has 
reinitiated its Section 7 consultation on the PFMC's Groundfish FMP.
    After reviewing the available information, NMFS concluded that, in 
keeping with sections 7(a)(2) and 7(d) of the ESA, the proposed action 
would not result in any irreversible or irretrievable commitment of 
resources that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    With regards to marine mammals, sea turtles, and seabirds, NMFS is 
reviewing the available data on fishery interactions. In addition, NMFS 
has begun discussions with Council staff on the process to address the 
concerns, if any, that arise from our review of the data.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 
U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: October 30, 2009.
James W. Balsiger,
Acting Assistant Administrator for 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 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq. and 16 USC 773 et seq.

0
2. Table 3 (North) to Part 660, Subpart G and Table 3 (South) to Part 
660, Subpart G are revised to read as follows:

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[FR Doc. E9-26543 Filed 10-30-09; 4:15 pm]
BILLING CODE 3510-22-S