[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65480-65491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29479]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0907301200-91412-03]
RIN 0648-AY07


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2010 Harvest Specifications and 
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 2010 Optimum Yield and the 
January-December 2010 management measures for petrale sole taken in the 
U.S. exclusive economic zone (EEZ) off the coasts of Washington, 
Oregon, and California.

DATES: Effective January 1, 2010.

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 or PFMC) website at http://www.pcouncil.org/. An Environmental Assessment (EA) was prepared for 
the proposals to revise 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), Optimum 
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 of groundfish petrale sole and canary rockfish - during 
2009 and 2010 (74 FR 46714). Those changes were proposed because the 
PFMC received new stock assessments of those species in June 2009 that 
indicated the stocks are in worse shape than had been thought at the 
beginning of 2009. On November 4, 2009, NMFS published the first of two 
final rules to implement a portion of the action described in the 
proposed rule; specifically, more restrictive management measures to 
reduce petrale sole catches in 2009 (74 FR 57117). This final rule 
implements another portion of the September 2009 proposed action for 
the year 2010 regarding petrale sole. These changes were considered and 
recommended by the Council at its November 2009 meeting in Costa Mesa, 
California. This final rule does not implement any changes to 2010 
harvest specifications or management measures for canary rockfish (see 
Changes From the Proposed Rule).
    This final action is taken to respond to the most recently 
available stock status information regarding petrale sole. The interim 
measures being implemented in this rule, in combination with the 
existing regulations, are designed to speed the rebuilding of petrale 
sole while NMFS and the Council 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 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. The routine management 
measures, as described in the 2009-2010 proposed rule, will continue to 
be adjusted as necessary 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 2010 harvest specifications and management measures for petrale sole 
can be found in the preamble to the September 2009 proposed rule (74 FR 
46714).

Comments and Responses

    NMFS received two letters of comment during the comment period for 
the proposed rule. 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

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recent petrale sole stock assessment and biological reference points, 
and supporting interim measures to reduce petrale sole catch. 
Specifically, Oceana recommended greatly reducing trip limits for 
Periods 5 and 6, closing the petrale sole cutouts (areas that are left 
open to fishing for petrale sole under the ``no action'' alternative) 
in the Rockfish Conservation Area (RCA), and reducing coastwide petrale 
sole catch levels for 2009 and 2010. This rulemaking only addresses the 
interim changes to petrale sole management in 2010 (a prior rule 
addressed the changes for 2009). Consistent with Oceana's 
recommendation, NOAA is reducing trip limits for the entire year and 
reducing coastwide petrale sole catch levels for 2010. NOAA is not 
closing the petrale sole cutouts in the RCA, because as explained 
below, the year-round reduction in trip limits keeps the fishery under 
the 2010 OY without the need for the closure of these petrale sole 
fishing areas. Oceana's comments primarily focused on biological 
reference points for petrale sole that the Council considered at its 
November 2009 meeting. NMFS forwarded Oceana's letter of comment to the 
Council, and those comments were considered prior to the Council's 
November 2009 recommendation. The Council made recommendations on the 
biological reference points for petrale sole and the petrale sole 
rebuilding analysis for the 2011-2012 specifications and management 
measures. The measures and the rebuilding plan will be developed, 
reviewed and implemented through the 2011-1012 implementation process 
as described above. Final action is not being taken on those measures 
in this rule, and Oceana's comments will be considered during the 
relevant rulemaking.

Changes from the Proposed Rule

    The proposed rule included changes to management measures that 
would reduce the catch of petrale sole in November-December 2009. That 
portion of the proposed action was implemented in a separate final rule 
that became effective on November 1, 2009, and which was published in 
the Federal Register on November 4, 2009 (74 FR 57117). The proposed 
rule included reductions to 2010 OYs for canary rockfish and petrale 
sole. It also included a description of management measures for canary 
rockfish and petrale sole that could be implemented to allow the 
fisheries to approach, but not exceed, 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 in order to allow the new rebuilding 
analyses to be completed and considered prior to making its final 
recommendation. At its November meeting, the Council considered the 
rebuilding analyses and public comments prior to making its final 
recommendations. Therefore, this final rule addresses only the 2010 
portion of the changes that were included in the proposed rule.
    At its November 2009 meeting, the Council adopted the rebuilding 
analyses for petrale sole and canary rockfish for use in developing the 
2011-2012 harvest specifications. These analyses were also considered 
in developing the interim specifications.
    This final rule implements measures in 2010 to reduce catches of 
petrale sole that are very similar to the actions contained in the 
proposed rule. The petrale sole rebuilding analysis indicated a faster 
time to rebuild the stock with a 1,200 mt alternative OY, compared with 
the status quo (or ``no action'') alternative of a 2,393 mt 2010 OY. 
The proposed rule would set a 2010 petrale sole OY of 1,193 mt, which 
was calculated based on the Council request to reduce the 2010 OY by 
1,200 mt. The rebuilding analysis the Council received in November 
analyzed five alternative OYs for 2010: the status quo of 2,393 mt; an 
OY of 1,800 mt; an OY of 1,200 mt (7 mt higher than the proposed 2010 
OY); and two lower OYs of 900 and 300 mt, respectively. Therefore, the 
rebuilding analyses that the Council considered prior to making its 
final recommendation included a petrale sole OY alternative for 2010 of 
1,200 mt, rather than 1,193 mt. After considering this analysis, the 
Council recommended a 2010 petrale sole OY of 1,200 mt, which is only 
slightly higher than the proposed OY. The rebuilding analysis the 
Council considered in the November 2009 meeting showed that this OY 
level in 2010 would rebuild the petrale sole stock approximately one 
year faster than the status quo alternative, and that it could allow 
less drastic OY reductions during the rebuilding period. Accordingly, 
this rule implements a reduced petrale OY for 2010 of 1,200 mt.
    The final rule will also implement management measures for 2010 to 
limit the petrale sole harvest to the new petrale sole OY. The 
management measures implemented in this final rule were developed 
jointly with fishery managers and trawl industry representatives at the 
Council's November 2009 meeting. These final management measures are 
somewhat different from those in the proposed rule. The proposed rule 
contained severely reduced trip limits in January-February (Period 1) 
and November-December (Period 6), as well as additional area closures 
during those times. These measures were proposed to restrict the winter 
petrale sole effort by eliminating directed harvest of petrale during 
these periods, when fewer vessels are participating, and to maintain 
summer fishing opportunity, when the price per pound is higher and when 
more vessels are targeting petrale sole. At the November 2009 Council 
meeting, however, the Groundfish Management Team (GMT) considered other 
measures for keeping the harvest within the new OY. Based on a request 
from industry, the GMT developed an alternative that would keep the 
trip limit for petrale sole at 9,500 lbs per two-month period all year. 
Because this approach would allow a small target fishery all year, it 
would not include the changes to the closed areas that were in the 
proposed rule. Trawl industry representatives advised the GMT and the 
Council that the severe restriction of winter petrale opportunities, as 
proposed, could place communities at risk of losing vital fishing 
infrastructure during that time of year, and could place industry at 
risk of losing market share for petrale sole, thus reducing the market 
availability for the rest of the year. Therefore, the Council 
recommended a trip limit configuration that would restrict trip limits 
all year, holding the cumulative limit constant at 9,500 lb per two 
month period from January-December, and maintaining the RCA with the 
petrale cutouts (or fishing areas) in Periods 1 and 6. These management 
measures are anticipated to limit the 2010 petrale sole harvest to the 
1,200 OY level. These measures, in combination with the existing 
regulations, are designed to speed the rebuilding of the petrale sole 
stock.
    This final rule will not implement 2010 changes for canary rockfish 
as outlined in the proposed rule. In November, the Council considered 
interim changes for 2010 after consideration of the new rebuilding 
analysis. For canary rockfish, the rebuilding analysis compared 15 
rebuilding alternatives in considering revisions to the canary rockfish 
rebuilding plan and developing the 2011-2012 harvest specifications. 
Only one of the rebuilding alternatives indicated a one-year difference 
in the time to rebuild canary rockfish stocks between the low 2010 OY 
alternatives (44 mt) and the status quo (no action) alternative (105 
mt). For all of the other 14 rebuilding alternatives, there was no

[[Page 65482]]

change in time to rebuild between either of the low 2010 OY 
alternatives (44 and 85 mt) and the status quo alternative. None of the 
proposed canary rockfish catch reductions made an appreciable 
difference in canary rockfish rebuilding parameters, including time to 
rebuild, nor did it make an appreciable difference in 2011 and 2012 
rebuilding OYs. Therefore, the proposed action did not meet the purpose 
and need that was described in the preamble of the proposed rule and in 
the Environmental Assessment. In addition, canary rockfish is a very 
important incidentally caught species that is widely encountered in 
both commercial and recreational fisheries, so that immediate 
reductions would have a far reaching effect. Accordingly, the Council 
did not recommend any changes to the 2010 canary rockfish OY of 105 mt 
or management measures to achieve a lower OY.

Classification

    The Administrator, Northwest Region, NMFS, has determined that the 
revisions to 2010 harvest specifications and management measures for 
petrale sole, which this final rule implements, are consistent with the 
Magnuson-Stevens Act, 16 U.S.C. Sec. Sec.  1801 et seq., and other 
applicable laws.
    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 of 
drafting, 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 of the stock. The Council recommended, and NMFS published, a 
proposed rule on September 11, 2009, to, among other things, reduce 
harvest of petrale sole in 2010. The comment period for this proposed 
rule closed on October 13, 2009. At its October 31 through November 5 
meeting, the Council made its final recommendations for changes to 2010 
harvest specifications and management measures for petrale sole.
    In order that this final rule reducing the 2010 petrale sole OY and 
adjusting management measures may become effective January 1, 2010, and 
thus protect the petrale sole in 2010, NMFS finds good cause to waive a 
portion of the 30 day delay in effectiveness pursuant to 5 U.S.C. 
553(d)(3). Leaving the unrevised 2010 OY and 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 1 
(January-February) 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 in the midst of the two-month 
January-February cumulative trip limit period. Finally, delaying the 
effectiveness of these measures could require more drastic action in 
2010 and beyond to reduce petrale sole catch, including possible 
fishery closures, to make up for harvest that would be allowed under 
the current 2010 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.
    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this final rule is not significant.
    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. 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 (fewer than 30) 
that are affiliated with larger processing companies or large 
international seafood companies. Under the status quo (no action) 
petrale sole alternative (P1), groundfish revenues in 2010 by the non-
whiting trawl fleet (139 vessels) would be about $28 million. Under the 
interim measures in this final rule, the vessels in this fishery would 
collectively earn about $26 million in 2010. Between 30 and 35 of these 
vessels would see their revenues fall by more than 5 percent (see 
Tables 4-1 and 4-2 of the EA).
    Although this final rule will reduce the overall take and per 
vessel take of petrale sole, the total reduction in the catch levels 
for all Pacific coast groundfish species for 2010 is relatively low. 
The measures being implemented in this rule, in combination with the 
existing regulations, are designed to speed the rebuilding of petrale 
sole and moderate the severity of future reductions in the petrale sole 
OY under a rebuilding plan. In order to mitigate the adverse effect of 
lower petrale sole catches in 2010, the Council recommended additional 
opportunities for trawlers to harvest Dover sole, chilipepper rockfish, 
shortspine and longspine thornyheads, slope rockfish, and sablefish in 
2010, and these recommendations are under consideration by NOAA for 
implementation in 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

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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.
    On March 11, 2006, using this data, NMFS issued a Supplemental 
Biological Opinion that addressed salmon take in both the Pacific 
whiting midwater trawl and groundfish bottom trawl fisheries, including 
the effects of these fisheries on Lower Columbia River coho, which were 
listed in 2005 (70 FR 37160, June 28, 2005). 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 is not likely to jeopardize the 
continued existence of any of the affected ESUs.
    Oregon Coastal coho were recently re-listed as threatened under the 
ESA (73 FR 7816, February 11, 2008). The 1999 Biological Opinion and 
2006 Supplemental Biological Opinion both concluded that the bycatch of 
salmonids in the Pacific coast groundfish bottom trawl 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 regard 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, the interim changes to the 2010 
petrale sole OY and the groundfish management measures for petrale sole 
were 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: December 7, 2009.
John Oliver,
Deputy Assistant Administrator For Operations, 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. Table 2a, and footnote ``/k'' following Tables 2a through 2c, are 
revised to read as follows:
* * * * *

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* * * * *
    /k A petrale sole stock assessment was prepared for 2005. In 2005 
the petrale sole stock was estimated to be at 32 percent of its 
unfished biomass coastwide (34 percent in the northern assessment area 
and 29 percent in the southern assessment area). The 2010 ABC of 2,751 
mt is based on the 2005 assessment with a F40% FMSY proxy. To derive 
the 2010 OY, the 40 10 harvest policy was applied to the ABC for both 
the northern and southern assessment areas. As a precautionary measure, 
an additional 25 percent reduction was made in the OY contribution for 
the southern area due to assessment uncertainty. As another 
precautionary measure, an additional 1,193 mt reduction was made in the 
coastwide OY due to preliminary results of the more pessimistic 2009 
stock assessment. The coastwide OY is 1,200 mt in 2010.
* * * * *

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3. Tables 3 (North) and 3 (South) to part 660, subpart G are revised to 
read as follows:
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[FR Doc. E9-29479 Filed 12-9-09; 8:45 am]
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