[Federal Register Volume 75, Number 85 (Tuesday, May 4, 2010)]
[Rules and Regulations]
[Pages 23620-23630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10403]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 100421192-0193-01]
RIN 0648-AY78 and 0648-AY59


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures

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

ACTION: Final rule; inseason adjustments to groundfish management 
measures; Pacific whiting harvest specifications and tribal allocation; 
request for comments.

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SUMMARY: This final rule establishes the 2010 fishery specifications 
for Pacific whiting in the U.S. exclusive economic zone (EEZ) and state 
waters off the coasts of Washington, Oregon, and California, as 
authorized by the Pacific Coast Groundfish Fishery Management Plan 
(FMP). These specifications include the level of the acceptable 
biological catch (ABC), optimum yield (OY), and allocations for the 
non-tribal commercial sectors. This final rule also announces the 
tribal allocation of Pacific whiting for the 2010 season and inseason 
adjustments of bycatch limits for the 2010 Pacific whiting fishery.

DATES: Effective April 29, 2010. Comments on the revisions to bycatch 
limits must be received no later than 5 p.m., local time on May 19, 
2010.

ADDRESSES: You may submit comments, identified by RIN 0648-AY78 by any 
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: Kevin C. Duffy.
     Mail: Barry A. Thom, Acting Regional Administrator, 
Northwest Region, NMFS, Attn: Kevin C. Duffy, 7600 Sand Point Way NE., 
Seattle, WA 98115-0070.
    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.
    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: Kevin C. Duffy (Northwest Region, 
NMFS), phone: 206-526-4743, fax: 206-

[[Page 23621]]

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 Web site at http://www.gpoaccess.gov/fr/index.html. 
Background information and documents are available at the Pacific 
Fishery Management Council's Web site at http://www.pcouncil.org/. 
Background information and documents are also available at the NMFS 
Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm.
    Copies of the final environmental impact statement (FEIS) for the 
2009-2010 Groundfish Specifications and Management Measures are 
available from Donald McIsaac, Executive Director, Pacific Fishery 
Management Council (Council), 7700 NE Ambassador Place, Portland, OR 
97220, phone: 503-820-2280.
    Copies of additional reports referred to in this document may also 
be obtained from the Council. Copies of the Record of Decision (ROD), 
final regulatory flexibility analysis (FRFA), and the Small Entity 
Compliance Guide are available from Barry A. Thom, Acting 
Administrator, Northwest Region (Regional Administrator), NMFS, 7600 
Sand Point Way, NE., Seattle, WA 98115-0070.

Background

    On December 31, 2008, NMFS published a proposed rule to implement 
the 2009-2010 specifications and management measures for the Pacific 
Coast groundfish fishery (73 FR 80516). A final rule was published on 
March 6, 2009 (74 FR 9874), which codified the specifications and 
management measures in the CFR (50 CFR part 660, subpart G), except for 
the Pacific whiting harvest specifications. This final rule establishes 
the 2010 harvest specifications for Pacific whiting. The proposed rule 
announced a range of Pacific whiting harvest specifications that were 
being considered for 2009 and 2010, and also announced the intent to 
adopt final specifications after the Council's March 2009 and 2010 
meetings. As explained below, the information necessary for the annual 
updated stock assessment is not available until January or February, 
which necessarily delays the preparation of the stock assessment until 
February.
    Delaying the adoption of Pacific whiting specifications until March 
is also consistent with the U.S.-Canada agreement for Pacific whiting. 
The U.S.-Canada agreement for Pacific whiting was signed in November 
2003. This agreement addresses the conservation, research, and catch 
sharing of Pacific whiting. Presently, both countries are taking steps 
to fully implement the agreement. Until this occurs, the negotiators 
recommended that each country apply the agreed-upon provisions to their 
respective fisheries. In addition to the time frame in which stock 
assessments are to be considered and harvest specifications 
established, the U.S.-Canada agreement specifies how the catch is to be 
shared between the two countries. The Pacific whiting catch sharing 
arrangement provides 73.88 percent of the total catch Optimum Yield 
(OY) \a\ to the U.S. fisheries, and 26.12 percent to the Canadian 
fisheries. This action accounts for this division of catch share 
allocation between the U.S. and Canada.
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    \a\ OY is the amount of fish that will provide the greatest 
overall benefit to the Nation, taking into account the protection of 
marine ecosystems. It is defined on the basis of maximum sustained 
yield from the fishery, as reduced by any relevant economic, social, 
or ecological factors. For overfished species, OY provides for 
rebuilding to a level consistent with producing maximum sustained 
yield.
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    On April 23, 2010, NMFS received a decision in the case of Natural 
Resources Defense Council v. Locke, Case No. C 01-0421 JL (N.D. Cal.), 
in which the court has ruled against NMFS on an issue related to 
darkblotched rockfish. The court has not yet issued the Order on 
Remedy, and NMFS is in the process of determining the full implications 
of this decision. NMFS is publishing this rule as scheduled so that it 
will be in place for the start of the Pacific whiting season. Upon 
further review of the court decision, NMFS will determine whether 
additional measures may be needed with respect to darkblotched 
rockfish, and will implement any such measures through an emergency 
rule.

Comments and Responses

    In addition to the December 2008 proposed rule, on March 12, 2010 
NMFS issued a proposed rule for the allocation and management of the 
2010 tribal Pacific whiting fishery (75 FR 11829). The comment period 
on this proposed rule closed on April 2, 2010. During the comment 
period, NMFS received four letters of comment. The Makah Tribe and the 
Quileute Tribe each submitted letters of comment concerning the tribal 
allocation for Pacific whiting. The Pacific Whiting Conservation 
Cooperative and the West Coast Seafood Processors Association also 
submitted letters of comment. As discussed further below, this final 
rule takes the tribal allocation figures into account in its final 
allocation of Pacific whiting.

Makah Tribe

    Comment 1: The Makah Tribe requested that NMFS establish interim 
individual tribal set-asides for Makah and Quileute in 2010, as it did 
in 2009. They requested a 2010 Makah Pacific whiting set aside of 17.5 
percent of the 2010 Pacific whiting U.S. OY, the amount reflected in 
the proposed rule. They commented on the Quileute's request for a 
16,000 mt set aside in 2010, stating the Quileute have provided no 
indication that they have two boats that will participate. Further, 
they pointed out that when Makah entered the fishery in 1996, the 
tribal allocation was 5,000 mt per boat, and in the following two 
years, the allocation increased to 6,000 mt per boat. They said that 
during this time period, there were fewer serious bycatch constraints 
on the fishery than there are today. They also pointed out that the set 
aside for Makah in 2009 averaged less than 5,000 mt per boat.
    The Makah also expressed support for NMFS's position regarding 
reapportionment of the tribal Pacific whiting allocation stated in the 
proposed rule. They stated their belief that the Quileute's usual and 
accustomed grounds are much less extensive than those currently 
designated by NMFS, and the Makah noted that they have initiated a sub-
proceeding in United States v. Washington to determine the actual 
boundaries of those areas. Finally, the Makah clarified that there are 
five boats, rather than four, in their Pacific whiting fishery.
    Response: NMFS supports the Makah request for 17.5 percent of the 
2010 Pacific whiting U.S. OY, as stated in the proposed rule, and is 
using that amount in its calculation of the overall tribal allocation 
for 2010. However, NMFS supports this request as a component of the 
total tribal allocation for 2010 as opposed to an individual tribal set 
aside. On March 6, 2009, NMFS adopted a Pacific whiting tribal 
allocation of 50,000 mt for the 2009 fishing season (74 FR 9874). This 
allocation was codified at 50 CFR 660.385. In the rule, individual set 
asides for the Makah Tribe (42,000 mt) and Quileute Tribe (8,000 mt) 
were established for 2009. In a May, 2009 rule (74 FR 20620), NMFS 
reapportioned 18,211 mt of the tribal allocation to the non-tribal 
sector. This action was based on the low OY of

[[Page 23622]]

Pacific whiting for 2009, the Makah Tribe's intent to harvest only 
23,789 mt of their 42,000 mt set aside, and their request that the 
18,211 mt be reapportioned to the non-tribal sectors of the fishery.
    Based on the separate requests by the Makah and Quileute Tribes, 
NMFS set the individual tribal set asides for 2009 at 42,000 mt and 
8,000 mt, respectively. At the June 2008 Council meeting, where the 
specific motion to create tribal set asides was discussed, NMFS met 
with the Makah Tribe, the Quileute Tribe, and the State of Washington. 
For 2010, NMFS has decided to issue an overall tribal allocation, 
without individual set asides, primarily for two reasons. First, 
although the Makah Tribe made a request for a specific allocation, the 
Quileute Tribe did not. Second, NMFS has received comments from the 
Quileute Tribe (addressed below), disputing that they agreed to a set 
aside for the 2009 season, and specifically requesting that no such set 
aside be created this year.
    NMFS acknowledges the Makah Tribes' comments on the Quileute Tribal 
request of 8,000 mt per boat for economic viability, but does not agree 
that this requested amount for 2010 is unreasonable. Further, as the 
Makah Tribe notes, the resulting tribal allocation appears to be within 
the total treaty right, based on the existing scientific information. 
NMFS is aware of the current litigation over the boundaries of the 
Quileute and Quinault usual and accustomed fishing grounds, and will 
make adjustments to the boundaries as described in its regulations if 
any are needed to achieve consistency with any court orders that result 
from that litigation. NMFS acknowledges the Makah's clarification on 
the number of boats in their Pacific whiting fishery.

Quileute Tribe

    Comment 2: The Quileute Tribe stated that they never requested or 
agreed to specific set asides for their proposed Pacific whiting 
fishery in 2009, and feel NMFS lacks the authority to establish 
intertribal allocations. They did not object to the total amount of the 
tribal Pacific whiting allocation that would be derived under the 
formula stated in the proposed rule (17.5 percent of U.S. OY + 16,000 
mt), but requested that the final rule simply provide for a total 
tribal allocation, as opposed to individual set asides. Regarding 
reapportionment, the Quileute Tribe feels a mechanism does not exist 
for reapportionment between these separately managed tribal and non-
tribal fisheries, and stated their desire to develop a process where 
reapportionment may be desirable, consistent with consultation required 
by Executive Order 13175 and with unanimous tribal consensus. The 
Quileute Tribe also indicated that they will likely have no more than 
one vessel participating in the fishery in 2010, and reiterated their 
belief that at least 8,000 mt per boat is necessary for economic 
feasibility. Finally, they stated that the total tribal Pacific whiting 
allocation should not be changed based on this information, because it 
is within the range of tribal treaty rights to Pacific whiting.
    Response: NMFS notes that the Pacific whiting set asides 
established for the Makah and Quileute Tribes in 2009 were based on 
individual tribal requests, and did not set any precedent regarding 
future allocations of Pacific whiting to the tribes. The final rule for 
2010 establishes a total tribal allocation, as opposed to individual 
tribal set asides. NMFS does not agree that no mechanism exists to 
reapportion unused Pacific whiting from the tribal to the non-tribal 
fishery. NMFS currently has the authority to reapportion Pacific 
whiting from the tribal to the non-tribal fishery under 50 CFR 
660.323(c). NMFS will coordinate and consult with the affected tribes, 
and will attempt to reach consensus before any reapportionment 
decisions are made in 2010. However, absent consensus, the NMFS 
Regional Administrator will make reapportionment decisions. NMFS 
acknowledges the Quileute Tribe's comments that they will probably have 
no more than one vessel participating in the fishery in 2010, and that 
they believe the total tribal allocation should not be changed, given 
this information.

Pacific Whiting Conservation Cooperative

    Comment 3: The Pacific Whiting Conservation Cooperative (PWCC) 
strongly supports NMFS' authority to reapportion unharvested whiting 
from the tribal fishery to the non-tribal fishery, consistent with 50 
CFR 660.323(c), stating that current regulations and past practice 
provide the necessary authority. PWCC stated their support for the 
Makah tribal request of 17.5 percent of the U.S. OY. Finally, PWCC 
expressed concern that NMFS is not requiring greater certainty from the 
Quileute Tribe regarding their fishing operation's capacity to harvest 
16,000 mt of Pacific whiting in 2010, and that NMFS is not requesting 
greater clarity from the Quileute Tribe about its plans to manage 
bycatch of overfished rockfish and salmonids in a manner consistent 
with the Pacific Fishery Management Council's groundfish conservation 
goals and objectives.
    Response 3: NMFS acknowledges and agrees with the PWCC comments 
supporting our authority to reapportion Pacific whiting. NMFS concurs 
with PWCC's support of the Makah request for 17.5 percent of the 
Pacific whiting U.S. OY in 2010, but acknowledges that this is only a 
portion of the total tribal allocation, and not an individual tribal 
set aside. NMFS is working with all tribes participating in the Pacific 
whiting fishery, encouraging them to share information about their 
fisheries plans and harvests before and during the fishing season. NMFS 
will make this reasonable request a priority for tribal participation 
in Pacific whiting fisheries in 2011 and beyond.

West Coast Seafood Processors Association

    Comment 4: The West Coast Seafood Processors Association (WCSPA) 
did not object to the Makah Tribes' request for 17.5 percent of the 
U.S. OY to the extent that it falls within the range of tribal treaty 
rights. They also stated their belief that the allocation of 16,000 mt 
to the Quileute Tribe in the first year of their fishery is excessive. 
They state that 2 inexperienced vessels harvesting that amount of fish 
in the relatively short time that market-grade Pacific whiting are 
available in the Quileute Tribe's usual and accustomed fishing area, 
without exceeding bycatch limits, is exceedingly far-fetched, and that 
a lesser amount should be allocated. They also stated their support for 
NMFS' assertion of its authority to reapportion potentially unharvested 
whiting among all sectors, tribal and non-tribal, in accordance with 
regulations governing the Pacific groundfish fishery. They stated that 
they expect NMFS to exercise this authority ``with due diligence'' in 
2010, and in consultation with all sectors of the fishery.
    Response 4: NMFS agrees with WCSPA's lack of objection to the Makah 
Tribes' request for 17.5 percent of the Pacific whiting U.S. OY in 
2010, and reflects that support in this final rule. NMFS acknowledges 
the WCSPA perspective that 16,000 mt to the Quileute Tribe in their 
first year of operation is excessive. NMFS has considered these 
comments, as well as others, in making a final determination of the 
tribal allocation for 2010. NMFS will take under advisement the WCSPA 
comment that NMFS assert its authority to reapportion potentially 
unharvested whiting among all sectors, tribal and non-tribal, in 
accordance with regulations governing the Pacific groundfish fishery. 
NMFS believes it

[[Page 23623]]

currently has the regulatory authority to reapportion Pacific whiting, 
through 50 CFR 660.323(c). NMFS will consult with all sectors of the 
fishery in determining whether and when to reapportion, consistent with 
WCSPA comment.

Pacific Whiting Stock Status

    The joint U.S.-Canada Stock Assessment Review (STAR) panel met 
February 8-10, 2010 in Seattle, Washington, to review two draft stock 
assessment documents: one had been prepared by Stewart & Hamel (Stock 
Synthesis III model, 2010) and the second had been prepared by Martell 
(TINSS, 2010). The Stock Synthesis III model is an age-structured stock 
assessment model. Age-structured assessment models of various forms 
have been used to assess Pacific whiting since the early 1980s. The 
Stock Synthesis III model uses data on total fishery landings, fishery 
length and age compositions and survey abundance indices. The TINSS 
model provides an age-structured assessment that directly estimates 
management variables C* (the maximum sustained yield) and F* (the 
fishing mortality rate that produces C*).
    During its deliberations, the 2010 STAR panel identified major 
issues with both assessments, namely whether: (a) The age and length 
data from the acoustic survey are an accurate representation of Pacific 
whiting; (b) the commercial length and conditional catch-at-age data 
are inconsistent with the assumptions of the models; and (c) the 1986 
acoustic survey estimate is biased because the pre- and post-survey 
calibrations are substantially different. These issues had been raised 
by past STAR panels, and have also been reflected in past research 
recommendations. Additionally, the 2010 Pacific whiting STAR panel 
expressed concern about the reliability of the acoustic signal because 
of the presence of Humboldt squid, which has an acoustic signal similar 
to Pacific whiting.
    The STAR Panel responded to these concerns by identifying a simpler 
model that did not use data it considered questionable. This led to two 
new model formulations. The panel considered both of these as equally 
acceptable, but adopted the modified TINSS model as its base model 
because it had the capacity to provide immediate results that 
quantified uncertainty.
    At the March 2010 Council meeting, the Council's Scientific and 
Statistical Committee (SSC) reviewed and discussed both the revised 
TINSS and the original Stock Synthesis III models in detail. The SSC 
was unable to reach consensus regarding which model formulation 
reflected the best available science for Pacific whiting in 2010, and 
put forth both models as the best available science, without assigning 
weights to either.
    In general, Pacific whiting is a very productive species with 
highly variable recruitment and a relatively short life span when 
compared to most other groundfish species. The base model indicates 
that the Pacific whiting female spawning biomass declined rapidly after 
a peak in 1984. The decline continued until 2000, and was followed by a 
brief increase to a peak in 2003 as the large 1999 year class matured 
(fish spawned during a particular year are referred to as a year 
class).
Acceptable Biological Catch (ABC)/OY Recommendations
    From these stock assessments, the U.S. OYs analyzed in the FEIS for 
2009 and 2010 specifications and management measures varied between a 
low OY of 134,773 mt and a high OY of 404,318 mt (a U.S.-Canada OY 
range of 182,421 mt--547,263 mt). This range represents 50 to 150 
percent of the 2008 U.S. OY of 269,545. These broad ranges in Pacific 
whiting harvest levels were analyzed in order to assess the potential 
range of the effects of the harvest of Pacific whiting on incidentally-
caught overfished species, and the economic effects to coastal 
communities.
    The final Acceptable Biological Catch (ABC) \b\ and OY values 
recommended by the Council for 2010 are based on the new stock 
assessments, and are consistent with the U.S.-Canada agreement and the 
impacts considered in the FEIS for the 2009 and 2010 management 
measures. For this rule, ABC is used as defined in the current Pacific 
Coast Groundfish FMP.\c\
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    \b\ Defined in the FMP as the Maximum Sustainable Yield, or the 
largest average catch that can be taken continuously from a stock 
under average environmental conditions while maintaining current 
stock abundance.
    \c\ The term ABC is not used here in the same sense as it is in 
the Magnuson-Stevens Act's National Standard 1 Guidelines, which 
will be implemented in the groundfish harvest specifications and 
management measures for 2011-12.
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    Based on the SSC advice that both models be put forward as the best 
available science, and additional input from Council advisory bodies 
and public comment, the Council adopted both the Pacific whiting stock 
assessments to decide harvest specifications for 2010 Pacific whiting 
fisheries.
    Ultimately, for the 2010 Pacific whiting fisheries, the Council 
adopted a coastwide (U.S. plus Canada) ABC of 455,550 mt, which is the 
average of the ABCs estimated in each of the two stock assessments 
adopted by the Council. The U.S. share of the ABC is 336,560 mt (or 
73.88 percent of the coastwide ABC). Due to the considerable 
uncertainty in the scientific advice, the Council used a more 
precautionary approach in choosing the OY and did not choose the 
average of the two model OYs. The OY values from the two models ranged 
from 186,000 mt (SS model) to 550,000 mt (TINSS model), and the average 
OY between the two models is 368,000 mt. Instead of choosing the 
average, the Council started with an OY value of 339,000 mt from the 
modified TINSS model. The TINSS model estimated the harvest rate that 
produces maximum sustained yield of F53%, which is more conservative 
than the proxy FMSY harvest rate of F40%. The OY estimated 
in that assessment, using the F53% harvest rate, is 339,000 mt, and 
projects the stock depletion level to be 31 percent in 2011, which will 
maintain the stock well above the overfished threshold. Next, the 
Council selected the OY value of 186,000 mt from the Stock Synthesis 
III model under an F40% harvest rate, which is projected to result in a 
depletion of 25 percent in 2011. The Council then averaged these two OY 
values, and adopted a coastwide OY of 262,500 mt for 2010, which is 
considerably closer to the OY value of the more conservative Stock 
Synthesis III model. Under the terms of the U.S.-Canada agreement on 
Pacific whiting, the U.S. allocation of the coastwide OY is 73.88 
percent, which equates to a U.S. OY of 193,935 mt.

Allocations

    Since 1996, NMFS has been allocating a portion of the U.S. OY of 
Pacific whiting to the tribal fishery, following the process 
established in 50 CFR 660.324(d). The tribal allocation is subtracted 
from the total U.S. Pacific whiting OY before it is allocated to the 
non-tribal sectors. The tribal Pacific whiting fishery is a separate 
fishery, and is not governed by the limited entry or open access 
regulations or allocations. To date, only the Makah Tribe has 
prosecuted a tribal fishery for Pacific whiting.
    For 2010, both the Makah and Quileute have stated their intent to 
participate in the Pacific whiting fishery. The Quinault Nation has 
indicated that they plan to participate in the 2011 fishery, but not 
the 2010 fishery.
    The final rule for the tribal allocation in 2010 is not intended to 
establish any precedent for future Pacific whiting seasons, or for the 
long-term tribal allocation of whiting. Based on the formula for the 
tribal allocation used in

[[Page 23624]]

the proposed rule, and taking into account public comments received on 
the proposed rule, the tribal allocation of Pacific whiting in 2010 is 
[17.5 percent * (U.S. OY)] + 16,000 mt. With a U.S. OY of 193,935 mt, 
the tribal allocation for the 2010 tribal Pacific whiting fishery is 
49,939 mt.
    The 2010 commercial (non-tribal) OY for Pacific whiting is 140,996 
mt. This amount was determined by deducting from the total U.S. OY of 
193,935 mt, the 49,939 mt tribal allocation, along with 3,000 mt for 
research catch and bycatch in non-groundfish fisheries. Regulations at 
50 CFR 660.323(a)(2) allocate the commercial OY among the non-tribal 
catcher/processor, mothership, and shore-based sectors of the Pacific 
whiting fishery.
    The catcher/processor sector is comprised of vessels that harvest 
and process Pacific whiting. The mothership sector is comprised of 
motherships and catcher vessels that harvest Pacific whiting for 
delivery to motherships. Motherships are vessels that process, but do 
not harvest, Pacific whiting. The shoreside sector is comprised of 
vessels that harvest Pacific whiting for delivery to shoreside 
processors. Each sector receives a portion of the commercial OY, with 
the catcher/processors getting 34 percent (or 47,939 mt for 2010), 
motherships getting 24 percent (or 33,839 mt for 2010), and the shore-
based sector getting 42 percent (or 59,218 mt for 2010). The fishery 
south of 42[deg]N. lat. may not take more than 2,961 mt (5 percent of 
the shore-based allocation) prior to the start of the primary Pacific 
whiting season North of 42[deg]N. lat.

Bycatch Limit Adjustments

    Bycatch limits have been used to restrict the catch of overfished 
species, particularly canary, darkblotched and widow rockfish, in the 
non-tribal Pacific whiting fisheries. With bycatch limits, the industry 
has the opportunity to harvest a larger Pacific whiting OY, provided 
the incidental catch of these overfished species does not exceed the 
adopted bycatch limits.
    Since 2005, a single bycatch limit for darkblotched, canary and 
widow rockfish species has been used for all commercial sectors of the 
fishery. However, beginning in 2009, concern that bycatch in one sector 
would result in the closure of a different sector of the fishery led to 
the implementation of sector-specific bycatch limits, rather than a 
single bycatch limit, for all commercial sectors (74 FR 9874, March 6, 
2009). This practice is continued in 2010.
    If a sector-specific bycatch limit is reached, or is projected to 
be reached, the Pacific whiting fishery for that sector will be closed, 
regardless of whether the Pacific whiting allocation has been achieved. 
When a sector is closed because a bycatch limit has been reached or was 
projected to be reached, unused amounts of the other bycatch limit 
species will be rolled-over to the remaining sectors of the non-tribal 
Pacific whiting fishery. If a sector reaches its Pacific whiting 
allocation, unused amounts of bycatch limit species will be shifted to 
those sectors of the non-tribal Pacific whiting fishery that remain 
open. Sector-specific bycatch limits are apportioned in the same 
percentages used to calculate the original sector Pacific whiting 
allocations.
    During the development of the 2009-2010 specifications and 
management measures, the non-tribal Pacific whiting fishery bycatch 
limits were preliminarily set at 18 mt for canary rockfish, 25 mt for 
darkblotched rockfish, and 450 mt for widow rockfish (74 FR 9874, March 
6, 2009). The final 2009 widow rockfish bycatch limit for the non-
tribal Pacific whiting fishery was reduced to 250 mt, due to higher 
projected catch of widow rockfish in the non-Pacific whiting fisheries 
and the need to keep the total projected widow rockfish catch below the 
2009 OY of 522 mt. The best available data at the March 2010 Council 
meeting indicated that there is an increasing trend in the bycatch rate 
for widow rockfish in the non-tribal Pacific whiting fishery and, given 
the higher 2010 Pacific whiting OY, the Council recommended increasing 
the widow rockfish bycatch limit for 2010. The 279 mt widow rockfish 
bycatch limit for 2010 is based on a linear interpolation of the 
bycatch rates for widow rockfish from 2006-2009. From the overall 
bycatch limit of 279 mt, the following sector-specific bycatch limits 
are established for widow rockfish: The catcher/processors bycatch 
limit is increased from 85.0 mt to 95.0 mt; the mothership bycatch 
limit is increased from 60.0 mt to 67.0 mt; and the shorebased bycatch 
limit is increased from 105.0 mt to 117.0 mt.
    The 2009 canary rockfish bycatch limit was 18.0 mt. The 2009 canary 
bycatch limit was approximately 12 mt higher than it had been in the 
previous four years. The bycatch limit was increased for 2009-2010, 
based on the much higher canary rockfish harvest specifications for 
that period. The best available data at the March 2010 Council meeting 
indicated that there is an increasing trend in the bycatch rate for 
canary rockfish in the non-tribal whiting fishery. However, based on 
(1) The latest understanding of canary biomass from the most recent 
assessment (biomass is lower than previously thought), (2) that only 17 
percent of the 2009 bycatch limit was caught, and (3) that the non-
Pacific whiting fisheries would need to be further limited to keep the 
projected impacts to canary rockfish below the 2010 OY of 105 mt if the 
18 mt bycatch limit was not reduced, the Council recommended decreasing 
the canary rockfish bycatch limit for 2010. The 2010 canary rockfish 
bycatch limit of 14 mt is based on the need to balance an increasing 
canary rockfish bycatch rate in the non-tribal Pacific whiting fishery 
with the needs of the non-Pacific whiting sectors. From the overall 
bycatch limit of 14 mt, the following sector-specific bycatch limits 
are established for canary rockfish: The catcher/processors bycatch 
limit is decreased from 6.1 mt to 4.8 mt; the mothership bycatch limit 
is decreased from 4.3 mt to 3.3 mt; and the shore-based bycatch limit 
is decreased from 7.6 mt to 5.9 mt.
    At their March 2010 meeting, the Council also considered revising 
the darkblotched rockfish bycatch limits, but found no reason to revise 
them before the start of the 2010 season.

Classification

    The final Pacific whiting specifications and management measures 
for 2010 are issued under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), and the Pacific 
Whiting Act of 2006, and are in accordance with 50 CFR part 660, 
subpart G, the regulations implementing the FMP. The Administrator, 
Northwest Region, NMFS, has determined that this rule is consistent 
with the national standards of the Magnuson-Stevens Act and other 
applicable laws.
    Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), 
NMFS finds good cause to waive prior public notice and comment on the 
2010 Pacific whiting specifications. NMFS also 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 as soon as possible after 
April 1, 2010, the typical fishery start date.
    These waivers are necessary and in the public interest. The FMP 
requires that fishery specifications be evaluated periodically using 
the best scientific information available. Every year, NMFS conducts a 
Pacific whiting stock assessment in which U.S. and Canadian scientists 
cooperate. The 2010 stock assessment for Pacific whiting was prepared 
in early 2010, which is the

[[Page 23625]]

optimal time of year to conduct stock assessments for this species. New 
2009 data used in this assessment that were not available until 
January, 2010 include: updated total catch; length and age data from 
the U.S. and Canadian fisheries; and biomass indices from the Joint US-
Canadian acoustic/midwater trawl surveys. Pacific whiting differs from 
other groundfish species in that it has a shorter life span and the 
population fluctuates more swiftly. Thus, it is important to use the 
most recent stock assessment for Pacific whiting when determining ABC 
and OY. Because of the timing of obtaining the data and conducting the 
assessment, the results of Pacific whiting stock assessments are not 
available for use in developing the new ABC and OY until just before 
the Council's annual March meeting. The new Pacific whiting season 
begins in April 2010. Thus, if the actions in this final rule are to be 
implemented early in this fishing season, affording the time necessary 
for prior notice and opportunity for public comment would prevent the 
agency from managing the Pacific whiting and related fisheries using 
the best available science.
    Moreover, delaying this rule would leave in place the harvest 
specifications and bycatch limits from the 2009 fishery. Through 
setting lower bycatch limits, this rule is intended to ensure that the 
rebuilding OYs for darkblotched, canary and widow rockfish are not 
exceeded. Without these lower limits, these rebuilding OY levels could 
be exceeded, contrary to the requirements of the Magnuson-Stevens Act 
and the Groundfish FMP. This would be contrary to not only the interest 
of the fishing communities, but to the public at large. Additionally, 
failing to implement the higher Pacific whiting harvest specifications 
as early as possible in 2010 could prevent the tribal and non-tribal 
fisheries from attaining their higher allocations, and thus would 
result in unnecessary short-term adverse economic effects for the 
Pacific whiting fishing vessels and the associated fishing communities.
    The environmental impacts associated with the Pacific whiting 
harvest levels being adopted by this action are consistent with the 
impacts in the FEIS for the 2009-2010 specification and management 
measures. In approving the 2009-2010 groundfish harvest specifications 
and management measures, NMFS issued a Record of Decision (ROD). The 
ROD was signed on February 23, 2009. Copies of the FEIS and the ROD are 
available from the Council (see ADDRESSES).
    Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et 
seq., NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) 
and FRFA for the 2009-2010 harvest specifications and management 
measures. These analyses included the regulatory impacts of this action 
on small entities. The IRFA was summarized in the proposed rule 
published on December 31, 2008 (73 FR 80516). A summary of the FRFA 
analysis, which covers the entire groundfish regulatory scheme of which 
this is a part, was published in the final rule on March 6, 2009 (74 FR 
9874). An IRFA was also prepared for the proposed rule on the tribal 
fishery for Pacific whiting in 2010. This proposed rule was published 
on March 12, 2010 (75 FR 11829). A FRFA for that rule was also 
prepared, and a summary of that FRFA is contained below. A copy of this 
analysis is available from NMFS (see ADDRESSES). The need for and 
objectives of this final rule are contained in the SUMMARY and in the 
Background section under SUPPLEMENTARY INFORMATION.
    The final 2009-2010 specifications and management measures were 
intended to allow West Coast commercial and recreational fisheries 
participants to fish the harvestable surplus of more abundant stocks, 
while also ensuring that those fisheries do not exceed the allowable 
catch levels intended to rebuild and protect overfished stocks. The 
ABCs and OYS follow the guidance of the Magnuson-Stevens Act, the 
national standard guidelines, and the FMP for protecting and conserving 
fish stocks. Fishery management measures include trip and bag limits, 
size limits, time/area closures, gear restrictions, and others intended 
to allow year-round West Coast groundfish landings, without 
compromising overfished species rebuilding measures.
    In recent years the number of participants engaged in the Pacific 
whiting fishery has varied with changes in the Pacific whiting OY and 
economic conditions. Pacific whiting shoreside vessels (26 to 29), 
mothership processors (4 to 6), mothership catcher vessels (11-20), 
catcher/processors (5 to 9), Pacific whiting shoreside first receivers 
(8-16), and five tribal trawlers are the major units of this fishery. 
For 2010, an additional one to two tribal trawlers may enter the 
fishery. NMFS records suggest the gross annual revenue for each of the 
catcher/processor and mothership operations on the Pacific coast 
exceeds $4,000,000. Therefore, they are not considered small 
businesses. NMFS records also show that 10-43 catcher vessels have 
taken part in the mothership fishery yearly since 1994. These companies 
are all assumed to be small businesses as defined by the RFA (although 
some of these vessels may be affiliated with larger processing 
companies). Since 1994, 26-31 catcher vessels participated in the 
shoreside fishery annually. These companies are all assumed to be small 
businesses (although some of these vessels may be affiliated to larger 
processing companies). Tribal trawlers are presumed to be small 
entities, whereas the Tribes are presumed to be small government 
jurisdictions.
    In 2008, these participants harvested about 248,000 tons of Pacific 
whiting, worth about $63 million in ex-vessel value, based on shoreside 
ex-vessel prices of $254 per ton--the highest ex-vessel revenues and 
prices on record. In comparison, the 2007 fishery harvested about 
224,000 tons, worth $36 million at an average ex-vessel price of about 
$160 per ton. From 2003-2007, estimated Pacific whiting ex-vessel 
values averaged about $29 million.
    Seafood processors convert Pacific whiting into surimi, fillets, 
fish meal, and headed gutted products. Besides recent high OY levels, 
ex-vessel revenues have been increasing due to increased prices for 
headed and gutted Pacific whiting. From 2004-2007, wholesale prices for 
headed and gutted Pacific whiting product increased from about $1,200 
per ton, to $1,600 per ton. In 2008, wholesale prices averaged $1,980 
per ton according to U.S. Export Trade statistics. Fuel prices, a major 
expense for Pacific whiting vessels, also increased dramatically. For 
example, at the start of the primary fishery in June 2008 fuel prices 
were about $4.30 per gallon, compared to June 2007 levels of $2.70 per 
gallon.
    In 2009, wholesale headed gutted prices fell slightly to $1,950 per 
ton. Fuel prices, a major expense for Pacific whiting vessels, 
continued to fluctuate. However, by 2009, these prices fell from their 
June, 2008 high to about $2.32 per gallon.
    The fisheries' ability to harvest the entire 2010 Pacific whiting 
OY will depend on how well the industry stays within the overfished 
species bycatch limits. For example, in 2008 the Pacific whiting 
shoreside fishery was closed prematurely because of overfished species 
bycatch issues, leaving a major portion its allocation unharvested. 
Although NMFS transferred the unharvested allocations to the other 
nontribal fleets, by year's end, 7 percent of the 2008 Pacific whiting 
OY remained unharvested. In 2009, the ex-vessel price of Pacific 
whiting averaged about $115 per ton. Based on this price,

[[Page 23626]]

if the total amount of Pacific whiting available to the tribal and non-
tribal commercial fisheries is harvested in 2010, the revenues 
generated would approach $22 million--a potential increase over the $14 
million generated in 2009.
    Pursuant to Executive Order 13175, this action was developed after 
meaningful consultation and collaboration with tribal officials from 
the area covered by the FMP. Under the Magnuson-Stevens Act, 16 U.S.C. 
1852(b)(5), one of the voting members of the Council must be a 
representative of an Indian tribe with federally recognized fishing 
rights from the area of the Council's jurisdiction. In addition, 
regulations implementing the FMP establish a procedure by which the 
tribes with treaty fishing rights in the area covered by the FMP 
request, in writing, new allocations or regulations specific to the 
tribes before the first of the two meetings at which the Council 
considers groundfish management measures. Both the Makah and Quileute 
Tribes requested a Pacific whiting allocation for 2009. The regulations 
at 50 CFR 660.324(d) further state that, ``the Secretary will develop 
tribal allocations and regulations under this paragraph in consultation 
with the affected tribe(s) and, insofar as possible, with tribal 
consensus.''
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: April 29, 2010.
Eric C. Schwaab,
Assistant Administrator for 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 U.S.C. 7001 et seq.


0
2. In Sec.  660.373 paragraph (b)(4)(i) is revised to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (b) * * *
    (4) * * *
    (i) The whiting fishery bycatch limit is apportioned among the 
sectors identified in paragraph (a) of this section based on the same 
percentages used to allocate whiting among the sectors, established in 
Sec.  660.323(a). The sector specific bycatch limits are: for catcher/
processors 4.8 mt of canary rockfish, 95 mt of widow rockfish, and 8.5 
mt of darkblotched rockfish; for motherships 3.3 mt of canary rockfish, 
67 mt of widow rockfish, and 6.0 mt of darkblotched rockfish; and for 
shore-based 5.9 mt of canary rockfish, 117 mt of widow rockfish, and 
10.5 mt of darkblotched rockfish.
* * * * *

0
3. In Sec.  660.385 paragraph (e) is revised to read as follows:


Sec.  660.385  Washington coastal tribal fisheries management measures.

* * * * *
    (e) Pacific whiting--The tribal allocation for 2010 is 49,939 mt.
* * * * *

0
4. Revise Table 2a to Part 660, Subpart G, and footnotes ``/f'' and ``/
q'' following Tables 2a through 2c to Part 660, Subpart G to read as 
follows:
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* * * * *
    \f\ Pacific whiting--The most recent stock assessment was 
prepared in January 2010. The stock assessment base model estimated 
the Pacific whiting biomass to be at 31 percent (50th percentile 
estimate of depletion) of its unfished biomass in 2010. The U.S.-
Canada coastwide ABC is 455,550 mt, the U.S. share of the ABC is 
336,560 mt (73.88 percent of the coastwide ABC). The U.S.-Canada 
coastwide Pacific whiting OY is 262,500 mt, with a corresponding 
U.S. OY of 193,935 mt. The tribal allocation is 49,939 mt. The 
amount estimated to be taken as research catch and in non-groundfish 
fisheries is 3,000 mt. The commercial OY is 140,996 mt. Each sector 
receives a portion of the commercial OY, with the catcher/processors 
getting 34 percent (47,939 mt), motherships getting 24 percent 
(33,839 mt), and the shore-based sector getting 42 percent (59,218 
mt). No more than 2,961 mt (5 percent of the shore-based allocation) 
may be taken in the fishery south of 42[deg] N. lat. prior to the 
start of the primary season for the shorebased fishery north of 
42[deg] N. lat.
* * * * *
    \q\ Widow rockfish was assessed in 2005, and an update was 
prepared in 2007. The stock assessment update estimated the stock

[[Page 23630]]

to be at 36.2 percent of its unfished biomass in 2006. The ABC of 
6,937 mt is based on the stock assessment update with an F50% FMSY 
proxy. The OY of 509 mt is based on a rebuilding plan with a target 
year to rebuild of 2015 and an SPR harvest rate or 95 percent. To 
derive the commercial harvest guideline of 447.4 mt, the OY is 
reduced by 1.1 mt for the amount anticipated to be taken during 
research activity, 45.5 mt for the tribal set-aside, 7.2 mt the 
amount estimated to be taken in the recreational fisheries, 0.4 mt 
for the amount expected to be taken incidentally in non-groundfish 
fisheries, and 7.4 mt for EFP fishing activities.
* * * * *
[FR Doc. 2010-10403 Filed 4-29-10; 4:15 pm]
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