[Federal Register Volume 75, Number 126 (Thursday, July 1, 2010)]
[Rules and Regulations]
[Pages 38030-38041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16063]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 090428799-9802-01]
RIN 0648-BA00


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2010 Harvest Specifications for 
Yelloweye Rockfish and In-Season Adjustments to Fishery Management 
Measures

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

ACTION: Final rule; in-season adjustments to biennial groundfish 
management measures; request for comments.

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SUMMARY: This final rule revises the 2010 harvest guidelines for 
yelloweye rockfish and makes in-season adjustments to trawl fishery 
management measures for several groundfish species taken in the U.S. 
exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and 
California. These actions, which are authorized by the Pacific Coast 
Groundfish Fishery Management Plan (FMP), are intended to prevent 
exceeding the 2010 OYs for yelloweye

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rockfish, an overfished species, and for petrale sole and sablefish.

DATES: Effective July 1, 2010. Comments on this final rule must be 
received no later than 5 p.m., local time on August 2, 2010.

ADDRESSES: You may submit comments, identified by RIN 0648-BA00, 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 Hanshew.
     Mail: William W. Stelle, Jr., Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-
0070, Attn: Gretchen Hanshew.
    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: Gretchen Hanshew (Northwest Region, 
NMFS), 206-526-6147, fax: 206-526-6736, [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 (the Council or PFMC) Web site at http://www.pcouncil.org/.

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). That 
action set the 2009-2010 harvest specifications and management measures 
for groundfish taken in the U.S. exclusive zone (EEZ) off the coasts of 
Washington, Oregon, and California, and revised rebuilding plans for 
four of seven overfished species, consistent with the Magnuson-Stevens 
Fishery Conservation and Management Act (MSA) and the Pacific Coast 
Groundfish Fishery Management Plan (FMP).

2010 Yelloweye Rockfish Harvest Specifications

    In response to the latest in a series of complaints filed in 
Natural Resources Defense Council v. Locke, Civil Action No. C 01-0421 
JL, challenging the rebuilding provisions in the FMP, the U.S. District 
Court for the Northern District of California vacated the 2010 
Specifications for darkblotched rockfish, cowcod, and yelloweye 
rockfish. Order Granting in Part and Denying in Part Parties' Cross-
Motions for Summary Judgment, Dkt. No. 340 (April 23, 2010) (Opinion). 
The Order lowered the 2010 yelloweye rockfish OY. NMFS is issuing a 
final rule to amend the regulatory requirements for yelloweye rockfish 
in accordance with the court's order, lowering the 2010 yelloweye 
rockfish OY from 17 mt to 14 mt. In the preamble to that rule, NMFS 
described that the Pacific Fishery Management Council (Council), 
through its in-season management process, would review the anticipated 
catch of yelloweye rockfish and recommend to the agency the appropriate 
management measures, including modifications to set asides or harvest 
guidelines (HGs), to manage the fishery within these OY levels. This 
rule makes those changes based on the information considered below.
    At the time that the Order established a 14 mt yelloweye rockfish 
OY, projected impacts to yelloweye rockfish was 17.0 mt. In an effort 
to reduce the severe fisheries restrictions that would be necessary to 
keep total mortality below the 14 mt OY, the states of Washington and 
Oregon cancelled a 2010 scientific research study that was intended to 
collect important biological information on yelloweye rockfish. The 
cancellation of this enhanced rockfish survey reduced projected impacts 
to yelloweye rockfish by 2.0 mt, resulting in total projected impacts 
of 15 mt for a 14 mt OY.
    NMFS also took action to reduce projected impacts to yelloweye 
rockfish by cancelling two exempted fishing permits (EFPs) that were 
scheduled to be issued in 2010. The cancellation of these two EFPs, and 
the resulting reduction in exempted fishing effort, reduced yelloweye 
rockfish impacts by 0.1 mt, resulting in total projected impacts of 
14.9 mt for a 14 mt OY.
    The limited entry trawl fishery model projects impacts to 
overfished species. Prior to the June Council meeting, the model was 
updated by incorporating the most recent (2009) west coast groundfish 
observer program (WCGOP) data. According to the 2009 WCGOP data, the 
bycatch rate of yelloweye rockfish was lower than previously thought, 
therefore the impacts to yelloweye rockfish in 2010 are projected to be 
lower than previously estimated. Updating the model, while leaving 
management measures unchanged, reduced projected impacts to yelloweye 
rockfish by 0.3 mt, resulting in total projected impacts of 14.6 mt for 
a 14 mt OY.
    At their June 11-17, 2010, meeting in Foster City, CA, the Council 
reviewed the most recent catch data in all groundfish fisheries and 
considered various ways to reduce projected impacts of yelloweye 
rockfish to a level at or below the 14 mt OY. Based on the most recent 
fishery data, projected catches of yelloweye rockfish in the limited 
entry fixed gear (LEFG) and open access fisheries are lower than 
anticipated due to inclement weather and lower than anticipated fishing 
effort on target species that co-occur with yelloweye rockfish. Because 
their projected impacts to yelloweye rockfish in the commercial fixed 
gear fisheries are lower than anticipated, the Council recommended 
reducing the catch sharing harvest guidelines in these sectors to a 
combined total of 2.0 mt, with 0.8 mt of yelloweye rockfish anticipated 
to be taken in the LEFG fishery and 1.2 mt of yelloweye rockfish 
anticipated to be taken in the directed open access fishery. This will 
allow for minimal disruption to summer fisheries, as no additional 
restrictions to fishery management measures are necessary at this time 
to stay below this lower HG. The states of Washington, Oregon and 
California already have management measures in place to keep projected 
impacts within their yelloweye rockfish HGs (Washington = 2.7 mt, 
Oregon = 2.4 mt, California = 2.8 mt). Because of the cancellation of 
the enhanced rockfish research survey activities and the savings it 
provided relative to yelloweye rockfish, recreational harvest 
guidelines for each state only had to be lowered by a small amount. The 
Council recommended reducing each state's harvest guidelines by 0.1 mt, 
resulting in new yelloweye rockfish HGs (Washington = 2.6 mt, Oregon = 
2.3 mt, California = 2.7 mt). No additional restrictions to management 
measures were necessary at this time to keep

[[Page 38032]]

projected impacts in recreational fisheries below these new HGs. As a 
result of the changes to the limited entry fixed gear, directed open 
access, and recreational fishery HGs, projected impacts to yelloweye 
rockfish were lowered by 0.5 mt, resulting in total projected impacts 
of 14.1 mt out for a 14 mt OY.
    The Council also considered reducing the yelloweye rockfish bycatch 
caps for the remaining EFP projects. If no changes to bycatch caps were 
made, the projected impacts to yelloweye rockfish, if all of the EFPs 
caught their entire yelloweye rockfish bycatch caps, would be 0.3 mt. 
One EFP holder proposed to voluntarily reduce the 2010 yelloweye 
rockfish bycatch cap for his project by 50 percent, because no 
yelloweye rockfish were caught in their EFP activities in 2009. The 
Council agreed and recommended that the bycatch cap for that EFP 
project be lowered from 0.2 mt to 0.1 mt. Changing the bycatch cap on 
this EFP project lowers impacts to yelloweye rockfish by 0.1 mt, 
resulting in total projected impacts to yelloweye rockfish of 14.0 mt 
out of a 14 mt OY.
    Based on the most recent fishery information, no additional changes 
to management measures are necessary to keep total projected impacts 
below the 2010 yelloweye rockfish OY of 14 mt at this time. The Council 
and NMFS will continue to monitor the most recent available fisheries 
information throughout the year and may make changes to management 
measures, if necessary, to keep projected impacts of yelloweye rockfish 
below the 2010 yelloweye rockfish OY of 14 mt.

Limited Entry Non-Whiting Trawl Fishery Management Measures

    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), July 6, 2009 (74 FR 31874), October 28, 2009 (74 FR 55468), 
February 26, 2010 (75 FR 8820), and May 4, 2010 (75 FR 23620). 
Additional changes to the 2009-2010 specifications and management 
measures for petrale sole were made in two final rules: On November 4, 
2009 (74 FR 57117), and December 10, 2009 (74 FR 65480). NMFS is 
issuing a final rule that will make additional changes in response to 
the duly issued court order (see 2010 Yelloweye Rockfish Harvest 
Specifications). These specifications and management measures are at 50 
CFR part 660, subpart G.
    Changes to the groundfish management measures implemented by this 
action were recommended by the Council, in consultation with Pacific 
Coast Treaty Indian Tribes and the States of Washington, Oregon, and 
California, at its June 11-17, 2010, meeting in Foster City, CA. The 
Council recommended adjusting the groundfish management measures to 
respond to updated fishery information and other in-season management 
needs. These changes include reductions to bi-monthly cumulative limits 
in the limited entry non-whiting trawl commercial fisheries off 
Washington, Oregon, and California. These reductions to trip limits 
must be implemented by the start of the next bi-monthly cumulative 
limit period, on or before July 1, 2010. Even a short delay in 
implementation could allow fisheries to take the entire two-month limit 
for this period. These changes are intended to reduce the catch of 
petrale sole and sablefish in order to keep the total mortality of 
these species within their 2010 OYs. The reductions to trip limits also 
slightly reduce the projected impacts to co-occurring overfished 
species.
    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.
    Catches of sablefish in the limited entry non-whiting trawl fishery 
are tracking ahead of projections. If no action is taken, and sablefish 
catch rates remain higher than previously expected throughout the year, 
catch of sablefish through the end of the year is projected to be 3,003 
mt, exceeding the 2010 trawl allocation of 2,995 mt by 48 mt. To slow 
catch of sablefish and stay below the 2010 allocation, the Council 
recommended an in-season adjustment reducing cumulative limits for 
sablefish as well as other co-occurring target species (Dover sole) 
coastwide, beginning on July 1, 2010.
    Catches of petrale sole in the limited entry non-whiting trawl 
fishery are also tracking ahead of projections. If no action is taken, 
and petrale sole catch rates remain higher than previously expected 
throughout the year, total coastwide catch of petrale sole through the 
end of the year is projected to be 1,289 mt, exceeding the 2010 
coastwide petrale sole OY of 1,200 mt by 89 mt. To slow catch of 
petrale sole and stay below the 2010 petrale sole OY, the Council 
recommended an in-season adjustment reducing cumulative limits for 
petrale sole as well as other co-occurring target species (Dover sole 
and ``other flatfish'') coastwide, beginning on July 1, 2010.
    Based on the considerations outlined above, the Council recommended 
and NMFS is implementing the following changes to cumulative limits in 
the limited entry non-whiting trawl fishery for July 1, 2010: reduce 
sablefish cumulative limits caught with large and small footrope trawl 
gears coastwide to ``21,000 lb (9,525 kg) per 2 months'' in July-
December; reduce petrale sole cumulative limits caught with large and 
small footrope trawl gears coastwide to ``6,300 lb (2,858 kg) per 2 
months'' in July-December; reduce Dover sole cumulative limits caught 
with large and small footrope trawl gears coastwide to ``100,000 lb 
(45,359 kg) per 2 months'' in July-December; and reduce ``other 
flatfish'' cumulative limits caught with large and small footrope trawl 
gears coastwide to ``100,000 lb (45,359 kg) per 2 months'' in July-
December.

Classification

    This rule revises the 2010 catch sharing harvest guidelines for 
yelloweye rockfish to keep fishery impacts within the lowered yelloweye 
rockfish OY in accordance with the court's order; makes routine in-
season adjustments to groundfish fishery management measures based on 
the best available information; and is taken pursuant to the 
regulations implementing the Pacific Coast Groundfish FMP.
    These actions are taken under the authority of 50 CFR 660.370(c) 
and are exempt from review under Executive Order 12866.
    These in-season 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.

[[Page 38033]]

553(d)(3), so that this final rule may become effective as quickly as 
possible.
    The recently available data upon which these recommendations were 
based was provided to the Council, and the Council made its 
recommendations, at its June 11-17, 2010, meeting in Foster City, CA. 
The Council recommended that these changes be implemented on or as 
close as possible to July 1, 2010. 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 prevent 2010 OYs from being exceeded or to prevent 
premature closure of the fishery. Decreases to bi-monthly cumulative 
limits for sablefish, petrale sole, Dover sole, and other flatfish in 
the limited entry trawl fishery are intended to prevent exceeding the 
2010 OYs for these species and co-occurring species, and prevent 
premature closure of fisheries that impact these species. These changes 
must be implemented in a timely manner, on July 1, 2010. Bi-monthly 
cumulative limits cover a two-month period, so if implementation is 
delayed much past July 1, then fishermen could harvest the prior higher 
limit before the revised limit is effective. Decreases to cumulative 
limits for other flatfish and Dover sole in the limited entry trawl 
fishery are intended to reduce impacts to petrale sole, a co-occurring 
species for which a severely reduced OY was implemented for 2010 (74 FR 
65480).
    Delaying these changes would keep management measures in place that 
are not based on the best available data, which could lead to exceeding 
OYs or early closures of the fishery if harvest of groundfish exceeds 
levels projected for 2010. 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: June 28, 2010.
Carrie Selberg,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq.


0
2. Footnote ``/aa'' following Tables 1a through 1c to part 660, subpart 
G, is revised to read as follows:
* * * * *
    aa/ Yelloweye rockfish was fully assessed in 2006 and an 
assessment update was completed in 2007. The 2007 stock assessment 
update estimated the spawning stock biomass in 2006 to be at 14 
percent of its unfished biomass coastwide. The 31 mt coastwide ABC 
was derived from the base model in the new stock assessment with an 
FMSYproxy of F50. The 17 mt OY is 
based on a rebuilding plan with a target year to rebuild of 2084 and 
an SPR harvest rate of 66.3 percent in 2009 and 2010 and an SPR 
harvest rate of 71.9 percent for 2011 and beyond. The OY is reduced 
by 2.8 mt for the amount anticipated to be taken during research 
activity, 2.3 mt the amount estimated to be taken in the tribal 
fisheries and 0.3 mt for the amount expected to be taken 
incidentally in non-groundfish fisheries. The catch sharing harvest 
guidelines for yelloweye rockfish in 2009 are: limited entry non-
whiting trawl 0.6 mt, limited entry whiting 0.0 mt, limited entry 
fixed gear 1.4 mt, directed open access 1.1 mt, Washington 
recreational 2.7 mt, Oregon recreational 2.4 mt, California 
recreational 2.8 mt, and 0.3 mt for exempted fishing.
* * * * *

0
3. Table 2a to part 660, subpart G, and footnote ``/aa'' following 
Tables 2a through 2c to part 660, subpart G, are revised to read as 
follows:
BILLING CODE 3510-22-P

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    aa/ Yelloweye rockfish was fully assessed in 2006 and an 
assessment update was completed in 2007. The 2007 stock assessment 
update estimated the spawning stock biomass in 2006 to be at 14 
percent of its unfished biomass coastwide. The 32 mt coastwide ABC 
was derived from the base model in the new stock assessment with an 
FMSY proxy of F50. The 14 mt OY is 
based on the need to conform the 2010 yelloweye rockfish harvest 
specifications to the Court's

[[Page 38037]]

Order in Natural Resources Defense Council v. Locke, Civil Action 
No. C 01-0421 JL. The amount anticipated to be taken during 
scientific research activity is 1.3 mt, the amount anticipated to be 
taken in the tribal fisheries is 2.3 mt, and the amount anticipated 
to be taken incidentally in non-groundfish fisheries is 0.3 mt. The 
catch sharing harvest guidelines for yelloweye rockfish in 2010 are: 
Limited entry non-whiting trawl 0.3 mt, limited entry whiting 0.0 
mt, limited entry fixed gear 0.8 mt, directed open access 1.2 mt, 
Washington recreational 2.6 mt, Oregon recreational 2.3 mt, 
California recreational 2.7 mt, and 0.2 mt for exempted fishing.
* * * * *

0
4. Tables 3 (North) and 3 (South) to part 660, subpart G, are revised 
to read as follows:
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[FR Doc. 2010-16063 Filed 6-30-10; 8:45 am]
BILLING CODE 3510-22-C