[Federal Register Volume 75, Number 130 (Thursday, July 8, 2010)]
[Rules and Regulations]
[Pages 39178-39183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16632]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 100617272-0271-02]
RIN 0648-AY94


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; harvest specifications; correction.

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SUMMARY: This final rule revises the optimum yields in the 2010 
Specifications for darkblotched rockfish, cowcod, and yelloweye 
rockfish. The U.S. District Court for the Northern District of 
California issued an Order on April 29, 2010, vacating the 2009-2010 
specifications for those three species, and replaced the Specifications 
with the most recent optimum yields that were specified for 2007-2008. 
This rule amends the regulatory requirements for these three species in 
accordance with the court's order. This rule also corrects a technical 
error in a table establishing the 2010 canary rockfish optimum yield.

DATES: Effective July 2, 2010.

FOR FURTHER INFORMATION CONTACT: Gretchen Hanshew (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 Web site at http://www.gpoaccess.gov/fr/index.html. 
Background information and documents are available at the Pacific 
Fishery Management Council's website at http://www.pcouncil.org/. 
Background 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 William W. Stelle, Jr., 
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), including, among other species, 
darkblotched rockfish, cowcod, and yelloweye rockfish. 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 Economic 
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). The existing and revised rebuilding plans were 
consistent with Amendment 16-4 to the FMP, and were designed to comply 
with the rebuilding requirements of the MSA.
    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 2009 and 2010 
specifications for darkblotched rockfish, cowcod, and yelloweye 
rockfish. Order on Remedy, Dkt. No. 342 (April 29, 2010) (Opinion). The 
Court held that NMFS violated National Standard 2 of the MSA by 
``failing to use the best scientific information available on the 
economic status of fishing communities in their 2009-2010 Biennial 
specifications and Management Measures for the Pacific Coast Groundfish 
Fishery (2009-2010 Specifications).'' Further, the Court held that NMFS 
established ``rebuilding plans for darkblotched rockfish, cowcod, and 
yelloweye rockfish in the 2009-2010 Specifications that do not rebuild 
those species in time periods that are `as short

[[Page 39179]]

as possible' within the meaning of section 304(e)(4)(A)(i)'' of the 
MSA.
    The Court remanded the 2009-2010 specifications and ordered the 
agency ``within one year of the date of issuance of the Order on 
Remedy,'' to establish new specifications for the Pacific Coast 
Groundfish Fishery that ``are based on the `best scientific information 
available' within the meaning of MSA National Standard 2, 16 U.S.C. 
1851(a)(2); and establish rebuilding periods for darkblotched rockfish, 
cowcod, and yelloweye rockfish that are `as short as possible' within 
the meaning of MSA section 304(e)(4)(A)(i), 16 U.S.C. 1854 
(e)(4)(A)(i).''
    In response, NMFS is considering the extent to which the current 
development of the 2011-2012 specifications for all species managed 
under the FMP must be modified to comply with the Court's Order. The 
Pacific Fishery Management Council (Council) is near the end of the 
two-year development of the new specifications and management measures. 
Under the current schedule, the Council would adopt its preferred 
alternatives at its June 2010 meeting and submit them to NMFS for 
consideration and, following additional public comment, possible 
adoption and implementation by January 1, 2011.
    The Court's Order also vacated the 2009-2010 specifications for 
darkblotched rockfish, cowcod and yelloweye rockfish, stating that 
``for the remainder of 2010, the most recent annual harvest levels 
(also known as optimum yields, or `OYs') that NMFS specified for 
darkblotched rockfish, cowcod, and yelloweye rockfish in its 2007-2008 
Biennial Specifications and Managements for the Pacific Coast 
Groundfish Fishery are in effect. For yelloweye rockfish, the OY in 
2010 is 14 metric tons.''
    In order to implement the Court's Order, NMFS is taking the 
following actions with respect to the 2010 groundfish regulations and 
management. This rule specifies that the 2010 OYs for three species 
are: darkblotched rockfish, 330 metric tons; cowcod, 4 metric tons; and 
yelloweye rockfish, 14 metric tons. The agency has requested that the 
Council, through its inseason management process, review the 
anticipated catch of these species and recommend to the agency the 
appropriate management measures, including modifications to set asides 
or harvest guidelines, to manage the fishery within the OY levels set 
by the Court, consistent with the following guidance.
    These OY amounts are based on a strict reading of the Court's 
Opinion and the subsequent Order on Remedy, Dkt. No. 342 (April 29, 
2010). For darkblotched rockfish, NMFS notes that modifying the current 
2010 OY of 291 mt by increasing it to the 2008 OY of 330 mt, as 
required by the Order, does not appear to be consistent with the 
Court's underlying reasoning in its Opinion. Thus, although NMFS is 
modifying the 2010 OY to be consistent with the Court's Order (an OY of 
330 mt), NMFS is recommending that the Council's management measures be 
designed to keep the 2010 fishery within 290 mt, which is equivalent to 
the 2007 OY level for darkblotched rockfish. The 2010 OY for cowcod 
remains 4 mt, which is the same OY specified in 2008. The 2010 OY for 
yelloweye rockfish is reduced from 17 mt to 14 mt.
    At its June meeting, the Council recommended the management 
measures to keep the fishery within the necessary levels published in 
this rule. These measures were published on July 1, 2010 (75 FR 38030).
    This rule also corrects the 2010 OY in Table 2a to 660 Subpart G 
for canary rockfish. In the final rule for the 2009-2010 groundfish 
harvest specifications and management measures (74 FR 9874, March 6, 
2009), NMFS established a 2010 OY for canary rockfish of 105 mt. In 
June 2009, after receiving some updated stock assessments, the Council 
recommended consideration of lowering the OYs for 2010 for both canary 
rockfish and petrale sole. In response, NMFS issued a proposed rule (74 
FR 46714, September 11, 2009) with a proposed canary rockfish OY for 
2010 that ranged from 44 mt to 105 mt. After review of the canary 
rockfish rebuilding analyses at its November 2009 meeting, the Council 
recommended no change to the existing canary rockfish OY of 105 mt. The 
preamble of the final rule (74 FR 65480, December 10, 2009), which 
implemented a change in the petrale sole OY, explained that the 2010 
canary rockfish OY was not being changed and remained at 105 mt. The 
final rule did not change preexisting trip limits for the fishery 
implementing the 105 mt OY, nor did it change a footnote to the 2010 
ABC/OY Table, Table 2a to Part 660, Subpart G-2010, that described the 
canary rockfish OY as being 105 mt. However, Table 2a still indicated 
the canary rockfish OY range of 44-105 from the proposed rule. This was 
a mistake. Therefore, in this action, NMFS is revising the OY table to 
be consistent with the decision announced in the December 10, 2009, 
final rule.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this final rule is consistent with the April 29, 2010, Court Order 
and the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive notice and public procedure on this action because it is 
unnecessary and contrary to the public interest, as provided by 5 
U.S.C. 553(b)(B). This action ensures that regulatory text provides 
accurate information to the regulated public consistent with a duly 
issued court order. For darkblotched rockfish, cowcod, and yelloweye 
rockfish, NMFS does not have discretion to take other action, as there 
is no alternative to complying with the court order. With regard to 
canary rockfish, correction of the OY number in the table is a minor, 
merely technical amendment, thus prior notice and comment is 
unnecessary. The December 10, 2009, final rule did not change 
preexisting trip limits implementing the 105 mt OY, and these trip 
limits are the basis for regulation of the fishery. Clarifying in the 
table that the canary rockfish OY is 105 mt as opposed to 44-105 mt 
does not affect regulation of the fishery. Providing for public comment 
on this action is contrary to the public interest. It would have no 
effect other than to slow the process of making the affected 
regulations consistent with the court order. The public would be best 
served by having accurate information in regulatory text immediately. 
Furthermore, the Assistant Administrator for Fisheries waives the 30-
day delayed effectiveness period, as provided by 5 U.S.C. 553(d)(3), 
for the reasons stated above. In addition, the impacts of this action 
(the change in the 2010 OYs for three rockfish species) is already 
effective based on the court order, and this will bring the codified 
regulations into compliance with currently effective harvest levels.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian Fisheries.


[[Page 39180]]


    Dated: July 2, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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. Table 2a to Part 660, Subpart G, and footnotes ``\y\/'', ``\z\/'' 
and ``\aa\/'' following Tables 2a through 2c to Part 660, Subpart G are 
revised to read as follows:
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[GRAPHIC] [TIFF OMITTED] TR08JY10.003


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[GRAPHIC] [TIFF OMITTED] TR08JY10.002


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[GRAPHIC] [TIFF OMITTED] TR08JY10.001

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    \y\/Cowcod in the Conception area was assessed in 2007 and the 
stock was estimated to be between 3.4 to 16.3 percent of its unfished 
biomass. The ABC for the Monterey and Conception areas is 14 mt and is 
based on the 2007 rebuilding analysis in which the Conception area 
stock assessment projection was doubled to account for both areas. A 
single OY of 4 mt is being set for both areas. The OY of 4 mt is based 
on the need to conform the 2010 cowcod harvest specifications to the 
Court's 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 0.2 mt and the amount expected to be 
taken during EFP activity is 0.24 mt.
    \z\/Darkblotched rockfish was assessed in 2007 and a rebuilding 
analysis was

[[Page 39183]]

prepared. The new stock assessment estimated the stock to be at 22.4 
percent of its unfished biomass in 2007. The ABC is projected to be 440 
mt and is based on the 2007 stock assessment with an FMSY 
proxy of F\50%\. The OY of 330 mt is based on the need to conform the 
2010 darkblotched rockfish harvest specifications to the Court's 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 2.0 mt and the amount anticipated to be taken during EFP 
activity is 0.95 mt.
    \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 F\50%\. The 14 mt OY is based on the need to conform the 2010 
yelloweye rockfish harvest specifications to the Court's 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.
* * * * *
[FR Doc. 2010-16632 Filed 7-2-10; 4:15 pm]
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