[Federal Register Volume 76, Number 115 (Wednesday, June 15, 2011)]
[Rules and Regulations]
[Pages 34910-34913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14846]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 100804324-1295-03]
RIN 0648-BA01


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: Interim final rule.

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SUMMARY: NMFS issues this interim final rule to revise the sablefish 
cumulative limits for the limited entry fixed gear primary fishery for 
the remainder of the 2011 groundfish fishery. This action is necessary 
to allow the limited entry fixed gear fishery to achieve their fishery 
harvest guideline, while keeping total impacts of all fisheries within 
the 2011 sablefish annual catch limit (ACL).

DATES: Effective June 10, 2011. Comments must be received no later than 
July 15, 2011.

ADDRESSES: Background information and documents, including the 
environmental impact statement (EIS) for this action, are available 
from William W. Stelle, Jr., Regional Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070; or by phone at 
206-526-6150. Electronic copies of this final rule are also available 
at the NMFS Northwest Region Web site: http://www.nwr.noaa.gov.
    You may submit comments, identified by 0648-BA01, 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: Sarah Williams.
     Mail: 7600 Sand Point Way NE, Seattle, WA 98115.
    Instructions: 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 A. Hanshew, 206-526-6147; 
(fax) 206-526-6736; [email protected].

SUPPLEMENTARY INFORMATION: 
    On May 11, 2011, NMFS published a final rule to establish the 2011-
2012 harvest specifications for most of the species in the groundfish 
fishery and management measures for that fishery off the coasts of 
Washington, Oregon, and California (76 FR 27508). That rule, in part, 
established the 2011 sablefish annual catch limit (ACL) for the area 
north of 36[deg] N. lat. From the sablefish ACL, NMFS calculated the 
allocations, fishery harvest guidelines, and the sablefish cumulative 
limits for the limited entry fixed gear primary sablefish fishery. 
These values are specified in Federal regulations at 50 CFR 660, 
Subparts C, D and E. Sablefish cumulative limits for the limited entry 
fixed gear fishery are specified at 50 CFR 660.231(b)(3)(i), subpart E.
    On May 18, 2011, NMFS was notified by the Executive Director of the 
Pacific Fishery Management Council (Council) that there was a mistake 
in the calculation of the 2011 and 2012 sablefish cumulative limits 
during the development of the 2011-2012 biennial specifications and 
management measures. The sablefish primary fishery cumulative limits 
contained in the November 3, 2010 proposed rule (75 FR 67810), and 
ultimately implemented through the May 11, 2011 final rule (76 FR 
27508) are incorrect. Public comments were accepted during the 
development of the 2011-2012 groundfish harvest specifications and 
management measures, and no public comments were received regarding the 
cumulative limits in the primary sablefish fishery. The error 
subsequently identified in the Executive Director's letter 
overcompensated for discard mortality, and so the pool of fish that is 
used to calculate the sablefish primary fishery cumulative limits was 
too low; therefore, the cumulative limits were also too low. The 
Executive Director requested that NMFS correct the sablefish cumulative 
limits for the limited entry fixed gear primary fishery as quickly as 
possible because the 2011 primary fishery season opened on April 1 and 
some vessels are actively fishing on their cumulative limits.

[[Page 34911]]

    Based on the information in the Executive Director's letter, and 
NMFS evaluation of the issues, NMFS is implementing a revision to the 
2011 cumulative limits for sablefish in the limited entry fixed gear 
primary sablefish fishery in this interim final rule. These cumulative 
limits are specified at 50 CFR 660.231(b)(3)(i), subpart E, and are 
increased for 2011 from ``Tier 1 at 41,379 lb (18,769 kg), Tier 2 at 
18,809 lb (8,532 kg), and Tier 3 at 10,748 lb (4,875 kg)'' to ``Tier 1 
at 47,697 lb (21,635 kg), Tier 2 at 21,680 lb (9,834 kg), and Tier 3 at 
12,389 lb (5,620 kg).''
    Increasing the 2011 cumulative limits for sablefish in the limited 
entry fixed gear primary sablefish fishery is anticipated to achieve 
but not exceed the 2011 fishery harvest guideline for the primary 
fishery of 1,598 mt. It is also not anticipated to, when combined with 
the projected impacts from other fisheries that catch sablefish, exceed 
the 2011 sablefish ACL of 5,515 mt. Increasing the 2011 cumulative 
limits for sablefish in the limited entry fixed gear primary sablefish 
fishery is not anticipated to increase the projected impacts to co-
occurring overfished species above the levels analyzed in the EIS 
because the projected impacts to co-occurring overfished species were 
estimated assuming that the sablefish fishery harvest guideline would 
be achieved.
    Delaying the increase to the sablefish cumulative limits could 
cause disruption to the primary fishery. Some vessels may fish their 
entire sablefish cumulative limit, thereby concluding their primary 
fishing season, and then move on to other fisheries (both groundfish 
and non-groundfish fisheries). Under normal circumstances once a vessel 
fishes their entire available sablefish cumulative limit the primary 
season is concluded for that vessel until the next year's primary 
season. When additional pounds of sablefish are made available with the 
increase to primary sablefish fishery cumulative limits, many of those 
vessels will desire to fish those additional pounds. This means that 
vessels will be moving back and forth in between the limited entry 
fixed gear primary sablefish fishery and other fisheries. Vessels that 
desire to resume fishing in the primary sablefish fishery upon the 
release of additional pounds may encounter difficulties, as regulations 
are not explicitly designed for the primary sablefish fishery to start, 
stop and start again during the same calendar year. Delaying the 
increase means that more vessels will have fished their entire initial 
sablefish cumulative limits, and more vessels will encounter disruption 
and confusion during their fishing activities in the primary sablefish 
fishery.
    Additional movement of vessels between the primary sablefish 
fishery and other fisheries could also disrupt the Council's inseason 
tracking of sablefish catch in the limited entry fixed gear fishery. 
Disruptions to inseason tracking could cause increased uncertainty in 
total catch projections of sablefish in the groundfish fishery.

Classification

    The Administrator, Northwest Region, NMFS, determined that the 2011 
sablefish cumulative limits for the limited entry fixed gear primary 
fishery, which this interim final rule implements, are necessary for 
the conservation and management of the Pacific Coast groundfish fishery 
and that it is consistent with the Magnuson-Stevens Fishery 
Conservation and Management 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 
increase to the 2011 sablefish cumulative limits in the limited entry 
fixed gear primary fishery as delaying this rule would be contrary to 
the public interest. Correcting the mistake in the calculation and 
raising the cumulative limits in the limited entry fixed gear primary 
sablefish fishery allows additional harvest opportunities so that the 
fishery may achieve its fishery harvest guideline. Affording the time 
necessary to complete notice and comment rulemaking would mean that a 
higher number of vessels would have their normal fishing practices in 
the primary sablefish fishery disrupted. This would occur because 
vessels often achieve their initial sablefish cumulative limits, 
thereby ``closing'' this portion of their sablefish season, and move on 
to another fishery. Vessels choosing to participate in other fisheries 
after achieving the cumulative limits currently specified in regulation 
could face difficulty returning to the primary sablefish fishery due to 
regulatory restrictions on changes in vessel registration. Also, 
failure to increase sablefish cumulative limits in a timely manner 
could prevent the limited entry fixed gear primary fishery from 
attaining their 2011 fishery harvest guideline, and thus would result 
in unnecessary short-term adverse economic effects for the sablefish 
primary fishery vessels and the associated fishing communities.
    For the same reasons, NMFS finds good cause to waive the 30-day 
delay in effectiveness pursuant to 5 U.S.C. 553(d)(3). As mentioned 
above, delaying the effectiveness of this rule would mean that a higher 
number of vessels would have their normal fishing practices in the 
primary sablefish fishery disrupted. Some vessels fish their entire 
sablefish cumulative limit, thereby concluding their primary fishing 
season, and then move on to other fisheries. Vessels choosing to 
participate in other fisheries after achieving the cumulative limits 
currently specified in regulation could face difficulty returning to 
the primary sablefish fishery due to regulatory restrictions on changes 
in vessel registration. Also, failure to increase sablefish cumulative 
limits in a timely manner could prevent the limited entry fixed gear 
primary fishery from attaining their 2011 fishery harvest guideline, 
and thus would result in unnecessary short-term adverse economic 
effects for the sablefish primary fishery vessels and the associated 
fishing communities. For these reasons, this interim final rule is made 
effective upon publication.
    The environmental impacts associated with the sablefish harvest 
levels that are achieved by this action are within the impacts in the 
EIS for the 2011-2012 specification and management measures. In 
approving the 2011-2012 groundfish harvest specifications and 
management measures, NMFS issued a Record of Decision (ROD). The ROD 
was signed on April 27, 2011. Copies of the EIS and the ROD are 
available from NMFS (see ADDRESSES).
    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.
    This rule is exempt from the Regulatory Flexibility Act because it 
was not subject to prior notice and opportunity for public comment. 
However, a final regulatory flexibility analysis (FRFA) was prepared 
for the 2011-2012 harvest specifications and management measures final 
rule (May 11, 2011, 76 FR 27508). The information provided in that FRFA 
is unchanged by this interim final rule, as this interim final rule 
only amends cumulative limits for sablefish in the primary fishery and 
does not make changes to the sablefish ACL, allocations, and fishery 
harvest guidelines that informed all of the relevant analyses presented 
in that FRFA.
    There are no additional projected reporting, record-keeping, and 
other compliance requirements of this rule not already envisioned 
within the scope of current requirements.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.

[[Page 34912]]

    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 FMP fisheries on Chinook salmon (Puget 
Sound, Snake River spring/summer, Snake River fall, upper Columbia 
River spring, lower Columbia River, upper Willamette River, Sacramento 
River winter, Central Valley spring, California coastal), coho salmon 
(Central California coastal, southern Oregon/northern California 
coastal), chum salmon (Hood Canal summer, Columbia River), sockeye 
salmon (Snake River, Ozette Lake), and steelhead (upper, middle and 
lower Columbia River, Snake River Basin, upper Willamette River, 
central California coast, California Central Valley, south/central 
California, northern California, southern California). These biological 
opinions concluded that implementation of the FMP for the Pacific Coast 
groundfish fishery was not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    NMFS reinitiated a formal section 7 consultation under the ESA in 
2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999, Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000 fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to complete an 
analysis of salmon take in the bottom trawl fishery.
    NMFS prepared a Supplemental Biological Opinion dated March 11, 
2006, which addressed salmon take in both the Pacific whiting midwater 
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental 
Biological Opinion, NMFS concluded that catch rates of salmon in the 
2005 whiting fishery were consistent with expectations considered 
during prior consultations. Chinook bycatch has averaged about 7,300 
fish over the last 15 years and has only occasionally exceeded the 
reinitiation trigger of 11,000 fish.
    Since 1999, annual Chinook bycatch has averaged about 8,450 fish. 
The Chinook ESUs most likely affected by the whiting fishery have 
generally improved in status since the 1999 ESA section 7 consultation. 
Although these species remain at risk, as indicated by their ESA 
listing, NMFS concluded that the higher observed bycatch in 2005 does 
not require a reconsideration of its prior ``no jeopardy'' conclusion 
with respect to the fishery. For the groundfish bottom trawl fishery, 
NMFS concluded that incidental take 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.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) were 
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) 
were recently relisted as threatened under the ESA. The 1999 biological 
opinion concluded that the bycatch of salmonids in the Pacific whiting 
fishery were almost entirely Chinook salmon, with little or no bycatch 
of coho, chum, sockeye, and steelhead.
    The Southern Distinct Population Segment (DPS) of green sturgeon 
was listed as threatened under the ESA (71 FR 17757, April 7, 2006). 
The southern DPS of Pacific eulachon was listed as threatened on March 
18, 2010, under the ESA (75 FR 13012). NMFS has reinitiated 
consultation on the fishery, including impacts on green sturgeon, 
eulachon, marine mammals, and turtles. After reviewing the available 
information, NMFS has concluded that, consistent with sections 7(a)(2) 
and 7(d) of the ESA, the action would not jeopardize any listed 
species, would not adversely modify any designated critical habitat, 
and 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.
    Pursuant to Executive Order 13175, the 2011-2012 harvest 
specifications and management measures were developed after meaningful 
consultation and collaboration with Tribal officials from the area 
covered by the FMP. This interim final rule takes no action that 
directly affects the Tribal management measures, which were passed by 
the Council, and which were developed and proposed by the Tribes.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: June 10, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    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., 16 U.S.C. 773 et seq., and 
16 U.S.C. 7001 et seq.

Subpart C--West Coast Groundfish Fisheries

0
2. In Sec.  660.231, paragraph (b)(3)(i) is revised to read as follows:


Sec.  660.231  Limited entry fixed gear sablefish primary fishery.

* * * * *
    (b) * * *
    (3) * * *
    (i) A vessel participating in the primary season will be 
constrained by the sablefish cumulative limit associated with each of 
the permits registered for use with that vessel. During the primary 
season, each vessel authorized to fish in that season under paragraph 
(a) of this section may take, retain, possess, and land sablefish, up 
to the cumulative limits for each of the permits registered for use 
with that vessel (i.e., stacked permits). If multiple limited entry 
permits with sablefish endorsements are registered for use with a 
single vessel, that vessel may land up to the total of all cumulative 
limits announced in this paragraph for the tiers for those permits, 
except as limited by paragraph (b)(3)(ii) of this section. Up to 3 
permits may be registered for use with a single vessel during the 
primary season; thus, a single vessel may not take and retain, possess 
or land more than 3 primary season sablefish cumulative limits in any 
one year. A vessel registered for use with multiple limited entry 
permits is subject to per vessel limits for species other than 
sablefish, and to per vessel limits when participating in the daily 
trip limit fishery for sablefish under Sec.  660.232, subpart E. In 
2011, the following annual limits are in effect: Tier 1 at 47,697 lb 
(21,635 kg), Tier 2 at 21,680 lb (9,834 kg), and Tier 3 at 12,389 lb 
(5,620 kg). For 2012 and beyond, the following annual limits are in 
effect: Tier 1 at 40,113 lb (18,195 kg), Tier 2 at 18,233

[[Page 34913]]

lb (8,270 kg), and Tier 3 at 10,419 lb (4,726 kg).
* * * * *
[FR Doc. 2011-14846 Filed 6-10-11; 4:15 pm]
BILLING CODE 3510-22-P