Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2012 Specifications and Management Measures and Secretarial Amendment 1
Federal Register, Volume 76 Issue 239 (Tuesday, December 13, 2011)
Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)
Rules and Regulations
Pages 77415-77430
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2011-31975
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
Docket No. 110908575-1687-03
RIN 0648-BB27
Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2012 Specifications and Management Measures and Secretarial Amendment 1
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule establishes the 2012 harvest specifications and management measures for certain groundfish species taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California consistent with the Magnuson-Stevens Fishery Conservation and Management Act and the Pacific Coast Groundfish Fishery Management Plan (PCGFMP). This action includes regulations to implement Secretarial Amendment 1 to the PCGFMP. Secretarial Amendment 1 contains the rebuilding plans for overfished species and new reference points for assessed flatfish species.
DATES: This rule is effective January 1, 2012.
ADDRESSES: Information relevant to this final rule, which includes a final environmental impact statement (FEIS), a regulatory impact review (RIR), and a final regulatory flexibility analysis (FRFA) is available for public review during business hours at the office of the Pacific Fishery Management Council (Council), at 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 Pacific Fishery Management Council.
FOR FURTHER INFORMATION CONTACT: Sarah Williams, phone: (206) 526-4646, fax: (206) 526-6736, or email: sarah.williams@noaa.gov
SUPPLEMENTARY INFORMATION:
Electronic Access
This rule is accessible via the Internet at the Office of the Federal Register Web site at http://www.access.gpo.gov/su_docs/aces/aces140.html. Background information and documents are available at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm and at the Council's Web site at http://www.pcouncil.org.
Summary of Provisions in This Final Rule
NMFS published a proposed rule on September 27, 2011 (76 FR 59634) and a Notice of Availability of Secretarial Amendment 1 to the Pacific Coast Groundfish Fishery Management Plan (PCGFMP) on September 9, 2011 (76 FR 55865). The comment periods on both the proposed rule and FMP amendment closed on November 8, 2011. NMFS has approved Secretarial Amendment 1. This final rule implements the provisions from the September 27, 2011, proposed rule, except for the proposed regulatory change to add a geographical split for lingcod at 42deg N. latitude. As a consequence, this final rule makes no changes to area-specific management of lingcod, and lingcod continue to be managed as a coastwide stock in 2012.
A discussion of the comments and NMFS's responses can be found in the Changes from the Proposed Rule and Comments and Responses section of this final rule. See the preamble to the proposed rule for additional background information on the fishery and on this final rule. The specifics associated with the development and decision making processes for the rebuilding plans in
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Secretarial Amendment 1 can be found in the proposed rule (75 FR 67810, November 3, 2010) and final rule (75 FR 27508, May 11, 2011) for the 2011-2012 harvest specifications and management measures.
Background
Every other year, the Council recommends biennial harvest levels for Pacific Coast groundfish, and management measures for commercial and recreational fisheries that are designed to achieve those harvest levels. For the 2011-2012 biennium, the Council recommended Amendment 16-5 to the PCGFMP and proposed specifications and management measures. Amendment 16-5 included one new and seven revised rebuilding plans, and new reference points for assessed flatfish species. A Draft Environmental Impact Statement (DEIS) was published in August 2010 that analyzed the effects of Amendment 16-5 and the 2011-2012 groundfish harvest specifications and management measures. NMFS reviewed the DEIS and the comments and concluded that the analysis did not clearly explain the alternatives in such a way that NMFS could choose among them. Therefore, NMFS disapproved the Amendment on December 27, 2010. A Final Environmental Impact Statement (FEIS), which analyzed the effects of Amendment 16-5 and the 2011-2012 groundfish harvest specifications and management measures, was drafted by NMFS and a Record of Decision was signed on April 26, 2011.
Because management measures were needed for the 2011 fishery, NMFS published a final rule (75 FR 27508, May 11, 2011) establishing harvest specifications and management measures for most species. Pursuant to NFMS' emergency authority under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq., NMFS implemented the specifications based on a slightly modified version of Amendment 16-5. Accordingly, the provisions can be effective for a maximum of 366 days. For more detail, see the ``Comments and Responses'' section of the May 11, 2011, final rule. (76 FR 27509). The provisions implemented pursuant to emergency authority for 2011 included the rebuilding plans and corresponding harvest levels, new proxy reference points for assessed flatfish species, and the Overfishing Limits (OFLs), Acceptable Biological Catches (ABCs), and Annual Catch Limits (ACLs) for assessed flatfish based on the new reference points.
Regulations Implemented Through Secretarial Authority and Secretarial FMP Amendment 1
Under MSA section 304(a) (16 U.S.C. 1854(c)), when the Secretary of Commerce (the Secretary) disapproves of a Council's FMP amendment, the Council may resubmit a revised amendment. If the Council does not submit a revised amendment, the Secretary, acting through NMFS, is authorized to prepare an amendment, 16 U.S.C. 1854(c)(1).
Because NMFS disapproved the Council's FMP amendment, the issue was brought before the Council for reconsideration and further action. In June 2011, the Council decided not to resubmit a revised amendment. NMFS therefore drafted Secretarial Amendment 1 to the FMP pursuant to section 304(c) of the MSA. The notice of availability for the amendment published on September 9, 2011 (75 FR 55865) and the comment period closed on November 8, 2011.
Secretarial Amendment 1 is a revised version of Amendment 16-5. It contains rebuilding plans that differ from those in the Council's Amendment 16-5 for three species. As with rebuilding plans approved and implemented for 2011, NMFS has determined that these plans are consistent with the statutory provisions of section 304(e) of the MSA. While a Secretarial Amendment is rare, the substance of this Amendment is routine and it implements provisions through notice and comment rulemaking that were previously created by emergency action. As stated above, this final rule updates the regulations at 50 CFR part 660 to establish new and revised rebuilding plans, establish the 2012 harvest specifications consistent with those rebuilding plans and new flatfish proxies, and calculate the resulting shorebased trawl allocations.
Secretarial Amendment 1 also makes some non-substantive structural changes to the PCGFMP by moving the descriptions of rebuilding plans and associated text to an appendix. These changes make it possible to update the rebuilding plans in the appendix without requiring an FMP amendment. The FMP still requires these changes to undergo notice and comment rule making. Moving the rebuilding plans helps ensure that they are easily accessible to the Council, agency, and members of the public. Currently, the PCGFMP allows the updating of rebuilding parameters, such as the target year to rebuild, through regulatory amendments rather than FMP amendments. However, the exact provisions of the rebuilding plans are frequently difficult to locate because they are imbedded in the rule's text and in the main body of the FMP. By moving text to an appendix, Secretarial Amendment 1 does not change any substantive rebuilding policies or procedures described in the PCGFMP. Rather, it enhances the public's access to current rebuilding plans; if a rebuilding parameter or other element of a rebuilding plan changes through the biennial harvest specifications and management process, the appendix would be updated after the final rule is in place without a separate FMP amendment.
Regulations Implemented Through Routine Rulemaking
In addition to the regulations implementing Secretarial Amendment 1, this final rule includes one regulatory change. This rule corrects the 2012 limited entry fixed gear sablefish tier limits. On May 18, 2011, NMFS was notified by the Executive Director of the 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 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 were actively fishing on their cumulative limits. A previous rule (76 FR 34910, June 15, 2011) corrected the limits for 2011, but no correction was made for 2012. These limits were incorrect in the May 11, 2011, final rule, and therefore this rule corrects these limits for 2012.
The limits proposed in this rule are consistent with the analysis in the FEIS on the 2011-2012 Harvest Specifications and Management Measures and the intent of the previously published regulations. The tier limits corrected through this rule are the result of a minor calculation change and do not reflect a policy or management shift in regards to season structure, opening or closing dates of the fishery or any other management measure.
Comments and Responses
NMFS published an NOA for Secretarial Amendment 1 on September 9, 2011, (76 FR 55865) and a proposed rule on September 27, 2011 (76 FR 59634). Both comment periods closed on November 8, 2011. NMFS received 4 comments on the proposed rule and FMP amendment. The Department of the Interior submitted a letter stating
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that they reviewed the FMP amendment and had no comments, no other comments were received on the FMP amendment. The remaining comments were all on the proposed rule and were all in response to the proposed implementation of a geographical split for lingcod at 42deg N. latitude. The Council submitted a letter stating that the effects of this change on the trawl rationalization program would result in negative consequences (that are summarized below), and therefore this regulation change should not be made for the 2012 fishery but should be further explored through the 2013-2014 harvest specifications and management measures process. The two other letters were submitted by fishing industry representatives and individual fishermen. The two letters from the industry also stated that the full consequences of this regulation change had not been fully understood by the industry during the development of the trawl rationalization program. Because the substantive comments were very similar, the main points are summarized here.
Comments:
The location of the 42deg N. latitude line runs directly through fishing grounds, causing fishermen to use a greater amount of fuel and removing the flexibility to avoid adverse weather since they would be restricted to one area per trip.
This change in regulation is occurring without knowledge of the fishing fleet and without discussion by the Council and its advisory bodies.
Splitting quota share (QS) north and south of a new line will result in the same amount of quota being allocated to each quota share holder; however, the vessel accumulation limits are not going to change so quota share holders will not be able to trade quota north and south of the line, limiting their flexibility in how they manage their Quota Pound (QP).
Response: As noted above, NMFS is not implementing the lingcod geographic split, and is referring the issue back to the Council for further consideration. The Council has already added this issue for consideration in the 2013-2014 specifications.
As background, NMFS notes that the requirement for IFQ species matching the species groupings and area subdivisions specified in the ABC tables was implemented through Amendment 20 to the FMP. Amendment 20 was implemented through an extensive and intensive review and regulatory deeming process. The deeming process, a requirement of section 303(c) of the MSA, consisted of a thorough review by the Council and its advisory bodies of the FMP amendment and the regulations implementing the amendment. Further, the Executive Director of the Council submitted a letter to NMFS stating that the regulations and FMP amendment were necessary and appropriate to achieve the goals of the FMP.
The geographic split for the lingcod stock was in front of the Council at its March, April, June, and September 2010 meetings in draft FMP language and draft regulations under the trawl rationalization program agenda items. It was also reviewed by the Council's Regulatory Deeming Workgroup at their February, May, and June 2010 meetings. This requirement was available for public comment through the NOA for Amendment 20 and 21 (75 FR 26702, May 12, 2010), and two rulemakings (75 FR 32994, June 10, 2010 and 75 FR 53380, August 31, 2010). In addition, the Council considered the provision to split lingcod north and south of 42deg N. latitude in the ABC tables at its April and June 2010 meetings under the harvest specifications agenda item. The GMT report at the September 2010 meeting under the trawl rationalization program agenda item recommended splitting lingcod north and south of 42deg N. latitude for IFQ management to reflect action taken in the 2011-2012 harvest specifications.
For these reasons, NMFS disagrees with the comment that the public was not aware of the requirement for IFQ species to reflect the species groupings and area subdivisions from the harvest specifications (i.e., ABC tables), including the requirement for reallocation of IFQ species when there is an area subdivision through the harvest specifications, such as the case with lingcod being split north and south of 42deg N. latitude in the 2011 and 2012 ABC tables.
However, NMFS agrees that it is appropriate to remove the proposed geographical split from the final rule. Given that this change was not implemented in 2011 because of the delay in the specifications and because the initial issuance process for the trawl rationalization program was implemented earlier in the year, we believe issuing QP and QS in 2012 in the same way as 2011 will not disrupt the fishery. Further, given that QS trading doesn't start until 2013, NMFS believes not implementing this change will allow fishers more flexibility for 2012.
Changes From the Proposed Rule
Because of the issues raised by the commenters and in consideration of the fact that the suggestions for alternative approaches presented by the commenters have not been analyzed nor have they gone through public review or rule making, NMFS is withdrawing proposed changes to divide harvest specifications for lingcod at 42deg N. latitude. This final rule makes no changes to area-specific management of lingcod, and lingcod will continue to be managed as a coastwide stock in 2012 and beyond. Therefore, this final rule does not revise any of the following regulations that were included in the proposed rule: the lingcod allocation for the Pacific coast treaty Indian fisheries at Sec. 660.50(f)(3), Subpart C, which was proposed to apply only for the area north of 42deg N. lat.; the at-sea whiting fishery annual set-aside for lingcod in Table 2d to Part 660, Subpart C, which was proposed to apply the set-aside to only the whiting fishery north of 42deg N. lat.; the list of IFQ species at Sec. 660.140(c)(1), which proposed to split lingcod from a coastwide IFQ species to two IFQ species, lingcod north of 42deg N. lat. and lingcod south of 42deg N. lat.; the list of IFQ management areas at Sec. 660.140(c)(2), Subpart D, which proposed to add a new management area between 42deg N. lat. and 40deg10' N. lat. due to the split of lingcod IFQ at 42deg N. lat.; lingcod accumulation limits for the shorebased IFQ program at Sec. 660.140 (d)(4)(i)(C), which proposed to split lingcod from a coastwide accumulation limit to two area-specific accumulation limits for lingcod; and lingcod quota pound vessel limits for the shorebased IFQ program at Sec. 660.140 (e)(4)(i), which proposed to split lingcod from a coastwide quota pound vessel limit to two area-specific quota pound vessel limits for lingcod. In addition, the shorebased trawl allocations at Sec. 660.140(d)(1)(ii)(D), Subpart D, no longer split lingcod at 42deg N. lat. and instead present lingcod in terms of a coastwide value.
Classification
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Secretarial Amendment 1, other provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a DEIS and FEIS for the 2011-2012 groundfish harvest specifications and management measures, which this action implements in part. The DEIS includes a RIR and an IRFA; the FEIS includes a FRFA. The Environmental Protection Agency
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published a notice of availability for the final EIS associated with this action on March 11, 2011 (76 FR 13401). A record of decision was signed on April 26, 2011. A copy of the DEIS and/or FEIS is available online at http://www.pcouncil.org/.
NMFS also prepared a FRFA for this action to assess its impact on small entities. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), summarizes the significant issues raised by the public comments in response to the IRFA, responds to those comments, and summarizes of the analyses completed to support the action. A copy of the FRFA is available from NMFS (see ADDRESSES) and a summary of the FRFA, per the requirements of 5 U.S.C. 604(a), follows:
On May 11, 2011 NMFS published a final rule establishing the harvest specifications and management measures for most species off the U.S. West Coast for the years 2011 and 2012. When a rule impacts small entities, the Regulatory Flexibility Act requires that the agency issuing the rule assess that impact as well as alternatives to the rule. The FEIS and RIR/IRFA associated with the May 2011 rule analyze a range of alternatives that were considered by the Council and NMFS, including the effects of setting allowable harvest levels necessary to rebuild the seven groundfish species that were previously declared overfished. An eighth species, petrale sole, was declared overfished in 2010 and this action includes a new rebuilding plan for this species along with the ACLs and management measures consistent with the adopted rebuilding plan. Associated rebuilding analyses for all eight species estimate the time to rebuild under various levels of harvest.
NMFS considered various alternatives to the proposed action including a No Action alternative. The No Action alternative would maintain the status quo in the fishery prior to NMFS' implementing the emergency rules. NMFS also considered three other alternatives that presented ``low,'' ``intermediate,'' and ``high'' options for overfished species ACLs. The Council's preferred alternative, Alternative 3, was also considered. The Council-preferred alternative was a mixture of ``high'' and ``intermediate'' alternatives. From the Council preferred alternative, NMFS crafted its preferred alternative by reducing the ACL values for two overfished species.
The Council initially considered a wider range of alternatives, but ultimately rejected from further analysis alternatives allowing harvest levels higher than what is generally consistent with current policies for rebuilding overfished stocks and a ``no fishing'' scenario (F=0). Section 2.4 of the FEIS describes six integrated alternatives including No Action, the Council's FPA, NMFS' preferred alternative, and three other alternatives (including the Council's Preliminary Preferred Alternative, which is similar to the Council's FPA). NMFS finds that the F=0 and Alternatives 1A, 1B, and 2, while resulting in shorter rebuilding times for most of the overfished species, lead to projected major decreases in commercial revenues and recreational activity. Allowing too many communities to suffer commercial or recreational losses greater than 10 percent fails to take into account the needs of fishing communities, as NMFS is required to do under the MSA. Alternative 3, the Council FPA, and NMFS' preferred alternative all reduce the impacts to communities to less than 10 percent, but they differ in their impacts on rebuilding times. Alternative 3 reduces rebuilding times from status quo for many of the overfished species, but does not reduce the rebuilding time for yelloweye rockfish, and results in only minor reductions for cowcod and darkblotched and rockfish. The Council's FPA improves upon Alternative 3 by reducing the rebuilding time for darkblotched rockfish by two years while maintaining Alternative 3's small positive increases in commercial revenues and recreational activity. The NMFS preferred alternative improves over the Council FPA by further reducing the rebuilding times of cowcod and yelloweye by three years and ten years, respectively.
Comparing the action alternatives with the No Action alternative allows an evaluation of the economic implications to groundfish sectors, ports, and fishing communities. Alternative 2011-2012 groundfish management measures are designed to provide opportunities to harvest healthy target species within the constraints of alternative ACLs for overfished species.
The integrated alternatives allow estimation of target species catch under the suite of ACLs for overfished species, both to demonstrate if target species ACLs are projected to be exceeded, and to estimate related socioeconomic impacts. The Council reviewed these analyses and read and heard testimony from Council advisors, fishing industry representatives, representatives from non-governmental organizations, and the general public before deciding the Council's FPA in June 2010. The Council's final preferred management measures are intended to stay within all the final recommended harvest levels for groundfish species decided by the Council at their April and June 2010 meetings. NMFS reviewed these analyses, read and heard testimony from Council advisors, fishing industry representatives, representatives from non-governmental organizations, the general public, and considered legal obligations to comply with a court order (NRDC v. Locke) before deciding NMFS' preferred alternative in February 2011. The NMFS preferred management measures are intended to stay within all the final recommended harvest levels for groundfish species that were part of the NMFS preferred alternative.
NMFS' preferred alternative represents efforts to address the directions provided by the Ninth Circuit Court of Appeals. These directions emphasize the need to rebuild stocks in as short a time as possible, while taking into account: (1) The status and biology of the stocks; (2) the needs of fishing communities; and (3) interactions of depleted stocks within the marine ecosystem. By taking into account the ``needs of fishing communities,'' NMFS simultaneously takes into account the ``needs of small businesses,'' as fishing communities rely on small businesses as a source of economic activity and income.
After adjusting each alternative to have the same level of whiting harvest, there are no differences in ex-vessel revenue or recreational trip projections between the Council's FPA and the NMFS preferred alternative. For both 2011 and 2012, the combined total annual ex-
vessel revenue associated with the NMFS preferred alternative, including at-sea whiting, is expected to be about $90 million, compared with the No-Action level of $82 million. (Note that ex-vessel revenue is just one indicator of the commercial value of the fishery. For example, ex-vessel revenues understate the wholesale, export, and retail revenues earned from the fishery. Data on these other indicators is either incomplete or unavailable.)
This rule will regulate small businesses that harvest groundfish. According to the Small Business Administration, a small commercial fish harvesting business is one that has annual receipts under $4 million, and a small charter boat business is one that has annual receipts under $7 million. This rule will affect about 2,600 small entities, which are generally vessels that either target groundfish or harvest groundfish as bycatch and that participate in the fishery. These vessels are associated with the limited entry fixed gear fishery, the open access fishery, the charter boat fleet, the tribal fleet or the trawl fleet. To determine the
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number of small entities potentially affected by this rule, NMFS reviewed analyses of fish ticket data and limited entry permit data, available employment data provided by processors, information on the charterboat and Tribal fleets, and industry responses to a survey on vessel ownership. The IRFA estimates that implementation of NMFS preferred alternative will affect about 2,600 small entities. These small entities are those that are directly regulated by this rule that is being promulgated to support implementation of NMFS preferred alternative. These entities are associated with those vessels that either target groundfish or harvest groundfish as bycatch. Consequently, these are the vessels, other than catcher-processors, that participate in the limited entry portion of the fishery, the open access fishery, the charter boat fleet, and the tribal fleets. Catcher/
processors also operate in the Alaska pollock fishery, and all are associated with larger companies such as Trident and American Seafoods. Therefore, it is assumed that all catcher/processors are ``large'' entities.
Best estimates of the limited entry groundfish fleet are taken from the NMFS Limited Entry Permits Office. As of June 2010, there are 399 limited entry permits including 177 endorsed for trawl (172 trawl only, 4 trawl and longline, and 1 trawl and trap-pot); 199 endorsed for longline (191 longline only, 4 longline and trap-pot, and 4 trawl and longline); 32 endorsed for trap-pot (27 trap-pot only, 4 longline and trap-pot, and 1 trawl and trap-pot). Of the longline and trap-pot permits, 164 are sablefish endorsed. Of these endorsements 130 are ``stacked'' (e.g. more than one permit registered to a single vessel) on 50 vessels. Ten of the limited entry trawl endorsed permits are used or owned by catcher/processor companies associated with the whiting fishery. The remaining 389 entities are assumed to be small businesses based on a review of sector revenues and average revenues per entity. The open access or nearshore fleet, depending on the year and level of participation, is estimated to be about 1,300 to 1,600 vessels. Again, these are assumed to be ``small entities.'' The tribal fleet includes about 53 vessels, and the charter boat fleet includes 525 vessels that are also assumed to be ``small entities.''
The effect of this rule on small entities will be increased ex-
vessel revenues. As mentioned above, for both 2011 and 2012, the combined total annual ex-vessel revenue associated with the NMFS preferred alternative, including at-sea whiting, is expected to be about $90 million, compared with the No-Action level of $82 million.
NMFS received 4 letters of comment on this rule. None of these letters addressed the IRFA. There are no additional projected reporting, record-keeping, and other compliance requirements of this rule not already envisioned within the scope of current requirements. References to collections-of-information made in this action are intended to properly cite those collections in Federal regulations, and not to alter their effect in any way. No Federal rules have been identified that duplicate, overlap, or conflict with this action.
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 PCGFMP 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 have concluded that implementation of the PCGFMP for the Pacific Coast groundfish fishery is 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 issued a Supplemental Biological Opinion on March 11, 2006 concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior ``no jeopardy'' conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) 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.
NMFS has reinitiated consultation on the fishery to address newly listed species including Pacific eulachon and green sturgeon, and other non-salmonid listed species (marine mammals, sea birds, and turtles). NMFS will be completing a consultation on listed marine species specifically for this 2012 action by the end of January 2012, and expects that consultation on seabirds will be completed prior to late summer of 2012. Although not anticipated, in the event the consultations identify either reasonable and prudent alternatives to address jeopardy concerns or reasonable and prudent measures to minimize incidental take, NMFS would exercise necessary authorities in coordination to the extent possible with the Pacific Fishery Management Council to put such additional alternatives or measures in place for the 2012 fishery.
After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed species, would not adversely modify any designated critical habitat, and will 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. Further, NMFS has concluded that take of any marine species that will be covered by the opinion to be issued in early 2012 is very unlikely to occur prior to completion of that opinion, and that take of listed seabirds is unlikely to occur in 2012. NMFS expects to complete the process leading to any necessary authorization of incidental taking of ESA-listed marine mammals under section 101(a)(5)(E) of the Marine Mammal Protection Act concurrent with the 2012 biological opinion.
Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the PCGFMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is 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 PCGFMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the PCGFMP request new allocations or
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regulations specific to the tribes, in writing, before the first of the two meetings at which the Council considers groundfish management measures. The regulations at 50 CFR 660.324(d) further state ``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.''
NMFS finds good cause to partially waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective on January 1, 2012, because the delay is contrary to the public interest. As discussed above, this rule implements harvest specifications and management measures for 2012. The 2012 groundfish harvest specifications and management measures are intended to rebuild overfished stocks as quickly as possible, taking into account the appropriate factors, as required by the MSA and are based on the best available fishery information, scientific information, and stock assessments. If this final rule is not effective by January 1, 2012, specifications and management measures for 2012 would not be consistent with the MSA or based on the best available information. Further, QP issuance is based on the year specific harvest specifications which are contained in this rule, and must be distributed to participants in the trawl fishery prior to the start of the fishing year, which is January 1, 2012. If the rule is not effective on January 1, 2012, fishery participants will be afforded QP based on the incorrect harvest specifications. Depending on the species this would mean QP would be issued either over or under the correct 2012 specifications. Because NMFS does not have a mechanism to take QP back if it was issued over the correct 2012 specifications this could mean QP issuance would be delayed until the 2012 specifications were in place. This would cause some fishermen to wait to fish, resulting in lost profits, yet this delay will provide no concomitant benefit for the harvested species. Because the 30-day period of delay before this rule becomes effective will have negative consequences for the affected fishery, it is contrary to the public interest, and NMFS 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 January 1, 2012.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian Fisheries.
Dated: December 7, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, 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
-
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.
0
-
Revise Sec. 660.40 to read as follows:
Sec. 660.40 Overfished species rebuilding plans.
For each overfished groundfish stock with an approved rebuilding plan, this section contains the standards to be used to establish annual or biennial ACLs, specifically the target date for rebuilding the stock to its MSY level and the harvest control rule to be used to rebuild the stock. The harvest control rule is expressed as a ``Spawning Potential Ratio'' or ``SPR'' harvest rate.
(a) Bocaccio. Bocaccio south of 40deg10' N. latitude was declared overfished in 1999. The target year for rebuilding the bocaccio stock south of 40deg10' N. latitude to BMSY is 2022. The harvest control rule to be used to rebuild the southern bocaccio stock is an annual SPR harvest rate of 77.7 percent.
(b) Canary rockfish. Canary rockfish was declared overfished in 2000. The target year for rebuilding the canary rockfish stock to BMSY is 2027. The harvest control rule to be used to rebuild the canary rockfish stock is an annual SPR harvest rate of 88.7 percent.
(c) Cowcod. Cowcod was declared overfished in 2000. The target year for rebuilding the cowcod stock south of 40deg10' N. latitude to BMSY is 2068. The harvest control rule to be used to rebuild the cowcod stock is an annual SPR harvest rate of 82.7 percent.
(d) Darkblotched rockfish. Darkblotched rockfish was declared overfished in 2000. The target year for rebuilding the darkblotched rockfish stock to BMSY is 2025. The harvest control rule to be used to rebuild the darkblotched rockfish stock is an annual SPR harvest rate of 64.9 percent.
(e) Pacific Ocean Perch (POP). POP was declared overfished in 1999. The target year for rebuilding the POP stock to BMSY is 2020. The harvest control rule to be used to rebuild the POP stock is an annual SPR harvest rate of 86.4 percent.
(f) Petrale Sole. Petrale sole was declared overfished in 2010. The target year for rebuilding the petrale sole stock to BMSY is 2016. The harvest control rule is the 25-5 default adjustment, which corresponds to an annual SPR harvest rate of 32.4 percent in 2012.
(g) Widow rockfish. Widow rockfish was declared overfished in 2001. The target year for rebuilding the widow rockfish stock to BMSY is 2010. The harvest control rule is a constant catch of 600 mt, which corresponds to an annual SPR harvest rate of 91.3 percent in 2012.
(h) Yelloweye rockfish. Yelloweye rockfish was declared overfished in 2002. The target year for rebuilding the yelloweye rockfish stock to BMSY is 2074. The harvest control rule to be used to rebuild the yelloweye rockfish stock is an annual SPR harvest rate of 76.0 percent.
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Tables 2a and 2b, to Part 660, Subpart C are revised to read as follows:
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In Sec. 660.140 revise paragraph (d)(1)(ii)(D) to read as follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(d) * * *
(1) * * *
(ii) * * *
(D) For the 2012 trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:
------------------------------------------------------------------------
Shorebased trawl
IFQ Species Management area allocation (mt)
------------------------------------------------------------------------
Lingcod......................... .................. 1810.65
Pacific cod..................... .................. 1,135.00
Pacific Whiting................. .................. TBD
Sablefish....................... North lat. of 2,467.00
36deg N.
Sablefish....................... South lat. of 514.08
36deg N.
Dover sole...................... .................. 22,234.50
English sole.................... .................. 9,542.50
Petrale sole.................... .................. 1,054.60
Arrowtooth flounder............. .................. 9,462.45
Starry flounder................. .................. 671.50
Other flatfish.................. .................. 4,197.40
Pacific Ocean perch............. North lat. of 119.50
40deg10' N.
Widow rockfish.................. .................. 342.62
Canary rockfish................. .................. 26.20
Chilipepper rockfish............ South lat. of 1,331.25
40deg10' N.
Bocaccio rockfish............... South lat. of 60.00
40deg10' N.
Splitnose rockfish.............. South lat. of 1,454.45
40deg10' N.
Yellowtail rockfish............. North lat. of 3,107.36
40deg10' N.
Shortspine thornyhead........... North lat. of 1,415.45
34deg27' N.
Shortspine thornyhead........... South lat. of 50.00
34deg27' N.
Longspine thornyhead............ North lat. of 1,914.00
34deg27' N.
Cowcod.......................... South lat. of 1.80
40deg10' N.
Darkblotched rockfish........... .................. 248.94
Yelloweye rockfish.............. .................. 0.60
Minor shelf rockfish complex.... North lat. of 522.00
40deg10' N.
Minor shelf rockfish complex.... South lat. of 86.00
40deg10' N.
Minor slope rockfish complex.... North lat. of 829.52
40deg10' N.
Minor slope rockfish complex.... South lat. of 377.37
40deg10' N.
------------------------------------------------------------------------
* * * * *
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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) Cumulative limits. (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 46,238 lb (21,017 kg), Tier 2 at 21,017 lb (9553 kg), and Tier 3 at 12,010 lb (5,459 kg).
* * * * *
FR Doc. 2011-31975 Filed 12-12-11; 8:45 am
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