[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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