Magnuson-Stevens Act Provisions; Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Correction, 22807-22825 [05-8817]

Download as PDF Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations biomass (SSB)) had declined from the historic high in 1990 of roughly 500 million lb (226,796 mt) to about 115 million lb (52,163 mt) in 2003 (29 percent of the recommended biomass target of 400 million lb (181,437 mt). The low level of SSB was expected to result in low recruitment for the next several years, and recruitment estimates from 1997 to 2003 were observed to represent the seven lowest values in the entire time series. The fishing mortality rate (F) in 2002 was estimated to be about 0.09. The 37th SAW recommended that total removals (landings, discards, Canadian catch) be constrained below levels consistent with F=0.03 (Frebuild). The commenters noted that they encounter dogfish in large numbers, and stated that the overall population remains relatively high. However, recent data support the trends found by the 37th SAW. Due to high inter-year variability in the NEFSC spring survey’s catches of spiny dogfish, current assessment methods use smoothed estimates of biomass to characterize population trends. According to the latest (2004) spring survey values, the 3year moving average of total stock biomass decreased from 916 million lb (415,533 mt) in 2001-2003, to 857 million lb (388,767 mt) in 2002-2004. Mature female biomass decreased from 144 million lb (65,466 mt) in 2001-2003, to 132 million lb (60,033 mt) in 20022004. Pup abundance, however, increased from 338 thousand lb (153 mt) in 2001-2003 to 1.440 million lb (653 mt) in 2002-2004. While this increase in pup adundance is encouraging, there is still a long way to go before the stock is rebuilt. As for the concern about dogfish preying on commercially important species, NMFS notes that dogfish prey on a wide range of species, not just those that are commercially fished. Analyses of over 40,000 stomach samples over several decades reveals high percentages of forage species, especially herring and mackerel, and a variety of invertebrates. Commercially important species such as gadoids (cod, haddock, pollock) and flatfish do not exceed 10 percent of the total diet. Invertebrates, notably comb jellies and squid, make up about 50 percent of the diet of spiny dogfish in NMFS autumn samples. Several recent scientific papers have documented the low occurrence of commercially important finfish in dogfish diets. Classification Included in this final rule is the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the discussion VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 that follows, the comments and responses to the proposed rule, and the initial regulatory flexibility analysis (IRFA) and other analyses completed in support of this action. A copy of the IRFA is available from the Regional Administrator (see ADDRESSES). Final Regulatory Flexibility Analysis Statement of Objective and Need A description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to the proposed rule and is not repeated here. Description and Estimate of Number of Small Entities to Which the Rule Will Apply All of the potentially affected businesses are considered small entities under the standards described in NMFS guidelines because they have gross receipts that do not exceed $3.5 million annually. Information from the 2003 fishing year was used to evaluate impacts of this action, as that is the most recent year for which data are complete. According to unpublished NMFS permit file data, 3,025 vessels possessed Federal spiny dogfish permits in 2003, while 94 of these vessels contributed to overall landings. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. Minimizing Significant Economic Impacts on Small Entities Impacts were assessed by the MAFMC, the New England Fisheries Management Council (NEFMC), and NMFS for two sets of measures that were evaluated as alternatives to the measures enacted by this rule. The first alternative would have set the commercial quota at the same level as this rule, but would have established different possession limits for vessels landing dogfish. It would not increase the overall landings of spiny dogfish and, therefore, would not minimize economic impacts on the small entities participating in the fishery. The second alternative would have eliminated the commercial quota and possession limits, and was projected to result in landings of about 25 million lb (11.3 million kg), the level observed in the unregulated period of the fishery. This would constitute a 525-percent PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 22807 increase in landings compared to the status quo quota of 4.0 million lb (1.81 million kg), and a 696-percent increase in landings compared to actual 2003 landings of 3.14 million lb (1.42 million kg). Although the short-term social and economic benefits of an unregulated fishery would be positive because of the revenue generated for the fishery participants, this unregulated harvest would be inconsistent with the requirements of the FMP and the MSFCMA, and would lead to depletion of the spiny dogfish population. Therefore, this alternative was rejected by the MAFMC, the NEFMC, and NMFS. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule, or group of related rules, for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as ≥small entity compliance guides.≥ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of permits issued for the spiny dogfish. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see ADDRESSES) and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html. Dated: April 28, 2005. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. 05–8815 Filed 5–2–05; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\03MYR1.SGM 03MYR1 22808 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No.; 040830250–5109–04; I.D. 081304C] RIN 0648–AS27 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Correction National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; request for comments; correction. AGENCY: This final rule establishes the 2005 fishery specifications for Pacific whiting (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). It also adjusts the bycatch limits in the whiting fishery. This Federal Register document also corrects the final rule implementing the specifications and management measures, which was published December 23, 2004. These specifications include the level of the acceptable biological catch (ABC), optimum yield (OY), tribal allocation, and allocations for the non-tribal commercial sectors. The intended effect of this action is to establish allowable harvest levels of whiting based on the best available scientific information. DATES: Effective April 28, 2005. Comments on the revisions to bycatch limits must be received no later than 5 p.m., l.t. on May 18, 2005. ADDRESSES: You may submit comments, identified by I.D. 081304C by any of the following methods: • E-mail: Whiting0506.nwr@noaa.gov: Include 081304C in the subject line of the message. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Fax: 206–526–6736, Attn: Becky Renko • Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115–0070, Attn: Becky Renko. Copies of the final environmental impact statement (FEIS) for this action SUMMARY: VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 503–820–2280. These documents are also available online at the Council’s website at http:// www.pcoucil.org. 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 D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115–0070. FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS) 206–526–6150. SUPPLEMENTARY INFORMATION: Electronic Access This final rule is accessible via the Internet at the Office of the Federal Register’s Website at http:// www.gpoaccess.gov/fr/index.html. Background information and documents are available at the NMFS Northwest Region website at http:// www.nwr.noaa.gov/1sustfsh/ gdfsh01.htm. Background A proposed rulemaking to implement the 2005–2006 specifications and management measures for the Pacific Coast groundfish fishery was published on September 21, 2004 (69 FR 56550). NMFS requested public comment on the proposed rule through October 21, 2004. During that comment period, NMFS received five letters of comment that were addressed in the preamble of the final rule published on December 23, 2004 (69 FR 77012). Comments regarding bycatch of overfished species, including bycatch of overfished species in the whiting fishery were received and responded to in the final rule. NMFS received no comments specific to the whiting ABC or OY. These comments were addressed in the preamble of the final rule. For further information on these comments, see the preamble of the final rules for the 2005–2006 annual specifications and management measures. Management Process The FMP requires that fishery specifications be evaluated biennially or annually and revised as necessary, that OYs be specified for groundfish species or species groups that need protection, and that management measures designed to achieve the OYs be published in the Federal Register. PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Specifications include ABCs and harvest levels (OYs, harvest guidelines, allocations, or quotas). In November 2003, the U.S. and Canada signed an agreement regarding the conservation, research, and catch sharing of whiting. The whiting catch sharing arrangement that was agreed upon provides 73.88 percent of the total catch OY to the U.S. fisheries and 26.12 percent to the Canadian fisheries. At this time, both countries are taking steps to bring this agreement into force. Until the agreement is ratified and implementing legislation effective, the negotiators recommended that each country apply the agreed upon provisions. In anticipation of the ratification of the U.S.-Canada agreement and a new stock assessment, and given the small amount of whiting that is typically landed under trip limits prior to the April 1 start of the primary season, the Council adopted a range for OY and ABC in the 2005–2006 specifications, and delayed adoption of a final 2005 ABC and OY until its March 2005 meeting. To date, the international agreement has not yet been ratified and implementing legislation has not yet been made effective. The ABC and OY values recommended by the Council as final ABC and OY values for 2005 are based on a stock assessment update and are within the range of those considered in the EIS for the 2005 and 2006 management measures. Stock Status In general, whiting is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span when compared to other overfished groundfish species. In 1987, the whiting biomass was at a historical high level due to an exceptionally large number of fish that spawned in 1980 and 1984 (fished spawned during a particular year are referred to as year classes). As these large year classes of fish passed through the population and were replaced by moderate sized year classes, the stock declined. The whiting stock stabilized between 1995 and 1997, but then declined to its lowest level in 2001. The 2002 whiting stock assessment estimated the female spawning biomass to be less than 20 percent of the unfished biomass in 2001 and was declared overfished on April 15, 2002 (67 FR 18117). Since 2001, the whiting stock has increased substantially as a strong 1999 year class has matured and entered the spawning population. In retrospect, the abundance of the whiting stock in 2001, as estimated from the current stock assessment, is now E:\FR\FM\03MYR1.SGM 03MYR1 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations believed to have been at 28 percent of its unfished biomass in 2001 when a survey catchability coefficient of 1.0 is applied, and at 34 percent of its unfished biomass in 2001 when a survey catchability coefficient of 0.6 is applied. With the publication of the 2004 harvest specifications for whiting (April 30, 2004; 69 FR 23667), NMFS announced that the whiting stock was estimated to be above the target rebuilding biomass and was no longer considered to be an overfished stock. On June 30, 2004, the court lifted the requirement it had initially imposed in the case of Natural Resources Defense Council v. Evans, 290 F. Supp. 2d 1051, 1057 (N.D. Calif. 2003) that NMFS prepare a rebuilding plan for whiting. 2005 Stock Assessment Update An age-structured assessment model was used in 2005 to update the 2004 whiting stock assessment. New information in this stock assessment included updated catch data through 2004 and recruitment indices from the 2004 Santa Cruz juvenile index survey. The stock assessment was examined by a joint U.S./Canada Pacific Hake (Whiting) Stock Assessment Review (STAR) panel in early February 2005. As in 2004, the amount of whiting that the 2003 hydroacoustic survey was able to measure relative to the total whiting in the surveyed area (survey catchability coefficient or q) was identified as a major source of uncertainty in the 2005 stock assessment update. Since 2005 was an assessment update, the model structure was not reexamined. The STAR panel could not reach consensus on the most appropriated value within the range for q of 0.6 to 1.0. The more optimistic or less risk averse model runs assumed that q equaled 0.6, while the less optimistic or more risk averse model runs assumed that q equaled 1.0. A catchability coefficient of 1.0 is the value that has been used in the previous assessments. Additional models runs with q set at 0.8 were developed following the STAR panel meeting. Three sets of projections, with different assumptions about the survey catchability, were brought forward to the Council for decision making. This range of projections was intended to represent a plausible range of the stock’s status. The Council’s Scientific and Statistical Committee (SSC) also reviewed the assessment, but did not recommend a specific value for q. The stock was estimated to be at 50 percent of its unfished biomass in 2004 (2.5 million mt of age 3+ fish) if a survey catchability coefficient of 1.0 were applied and at 55 percent (4.0 million VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 mt of age 3+ fish) of its unfished biomass in 2004 if a survey catchability coefficient of 0.6 were applied. However, in the absence of another large year class after 1999, the stock is projected to decline. In 2005, the stock is estimated to be at 38 percent of its unfished biomass when a survey catchability coefficient of 1.0 is applied and at 41 percent when a survey catchability coefficient of 0.6 is applied. The U.S. Canada Treaty provisions include the use of a default harvest rate of F40% with a 40/10 adjustment, a precautionary harvest adjustment described in the FMP at section 4.5.1. A rate of F40% can be explained as that which reduces spawning potential per female to 40 percent of what it would have been under natural conditions (if there were no mortality due to fishing). ABC/OY Recommendations The range of ABCs and OYs considered by the Council and analyzed in the EIS for 2005 included: a low ABC/OY of 181,287 mt, which represents 50 percent of the medium ABC/OY; a medium ABC/OY of 362,573 mt, based on the results of the 2004 assessment with the OY being set equal to the ABC because the stock biomass is greater than 40 percent of the unfished biomass; and a high OY of 725,146 mt, which is twice the amount of the medium ABC/OY. At its March 2005 meeting in Sacramento, CA, the Council reviewed the results of the new whiting stock assessment. The U.S. OYs considered by the Council at its March meeting were 223,343 mt (q=1.0, F45%), 264,296 mt (q=1.0, F40%), 264,296 mt (q=0.8, F45%), 316,904 mt (q=0.8, F40%), 356,766 mt (q=0.6, F45%), and 441,525 mt (q=0.6, F40%). Because the whiting biomass is estimated to be below 40 percent of its unfished biomass, the 40/10 adjustment was applied. The SSC recommended that the Council use the decision table presented in the whiting stock assessment (Table 14) to evaluate the consequences of alternate OY options on the whiting biomass. Following discussion and public testimony, the Council recommended adopting a U.S. OY of 269,069 mt with a U.S. ABC of 269,545 mt. In making this decision, the Council considered the true state of nature as shown in the assessment decision table 14. With an F40% harvest rate proxy, if a q value of 1.0 is used and the true state of nature is actually 0.6, in 2006 the stock would be at 31 percent of its unfished biomass. However, if a q value of 0.6 is used and the true state of nature is actually 1.0, the stock is projected to fall below the overfished threshold by 2006. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 22809 With the publication of the 2004 harvest specifications for whiting (April 30, 2004; 69 FR 23667), NMFS announced that the U.S. whiting ABC was 514,441 mt. However, the 515,441 mt value corresponds with the coastwide (U.S./Canada) ABC. The 2004 U.S. share of the whiting ABC was actually 380,069 mt. Overfished Species The availability of overfished species as incidental catch, particularly Pacific ocean perch, canary, darkblotched, and widow rockfish, may prevent the industry from harvesting the entire whiting OY during 2005. However, in order to allow the industry to have the opportunity to harvest the higher OY, the Council recommended bycatch limits for certain overfished species. Under this structure, the industry has the opportunity to harvest a larger amount of whiting, if they can do so while keeping the incidental catch of overfished species within adopted bycatch limits. In recent years, the most constraining overfished species for the whiting fishery have been darkblotched, canary and widow rockfish. In the final rule for the 2005–2006 specification and management measures, whiting sector bycatch limits were put into place for canary and widow rockfish, 50 CFR 660.373 (b)(4). The amount of canary rockfish that would be available to the entire whiting fishery was 7.3 mt and the amount of widow rockfish was 231.8 mt in 2005. At the March 2005 Council meeting, the Council’s groundfish management team (GMT) considered the 2005 whiting OY alternatives in relation to the impacts of incidental catch of overfished species. In 2004, the estimated bycatch of widow rockfish was most constraining, relative to the amounts of each overfished species. For 2005, it is estimated that widow bycatch under the final recommended OY would be 136.25 mt, which is well within the pre-existing 231.8 mt bycatch limit for all sectors of the fishery. The Council recommended that the amount of widow rockfish specified for the nontreaty whiting sectors be adjusted to 200 mt, which should accommodate the needs of the fishery. For 2005, it is estimated that canary rockfish bycatch for the entire whiting fishery under the final recommended OY would be 9.22 mt, which would exceed the preexisting bycatch limit of 7.30 mt. The GMT projected that a canary rockfish bycatch limit of 7.3 mt would support a whiting OY of 208,069 mt. Since the regulations at 50 CFR 370(c)(1)(ii) provide for the closure of the non-tribal portion of the whiting fishery upon E:\FR\FM\03MYR1.SGM 03MYR1 22810 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations attainment of a bycatch limit, the Council recommended the limit be adjusted to only cover the harvest by non-tribal sectors, in order to ensure the total canary OY is not exceeded. Thus, the Council recommended that the amount of canary rockfish specified for the non-treaty whiting sectors be adjusted to 4.7 mt. NMFS agrees with the bycatch limits, which are intended to keep the whiting fishery from causing premature closure to the non-whiting fisheries. Allocations In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes’ usual and accustomed ocean fishing areas (described at 60 CFR 660.324). The Pacific Coast Indian treaty fishing rights, described at 50 CFR 660.385, allow for the allocation of fish to the tribes through the specification and management measures process. A tribal allocation is subtracted from the species OY before limited entry and open access allocations are derived. The tribal 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 participated. It regulates, and in cooperation with NMFS, monitors this fishery so as not to exceed the tribal allocation. Beginning in 1999, NMFS set the tribal allocation according to an abundance-based sliding scale allocation method, proposed by the Makah Tribe in 1998. See; 64 FR 27928, 27929 (May 29, 1999); 65 FR 221, 247 (January 4, 2000); 66 FR 2338, 2370 (January 11, 2001). Details on the abundance-based sliding scale allocation method and related litigation are discussed in the preamble to the proposed rule (69 FR 56570; September 21, 2004) and are not repeated here. On December 28, 2004, the Ninth Circuit Court of Appeals upheld the sliding scale approach in Midwater Trawler Cooperative v. Daley, 393 F. 3d 994 (9th Cir. 2004). Under the sliding scale allocation method, the tribal allocation varies with U.S. whiting OY, ranging from a low of 14 percent (or less) of the U.S. OY when OY levels are above 250,000 mt, to a high of 17.5 percent of the U.S. OY when the OY level is at or below 145,000 mt. For 2005, using the sliding scale allocation method, the tribal allocation will be 35,000 mt. The VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 Makah are the only Washington Coast tribe that requested a whiting allocation for 2005. The 2005 non-tribal commercial OY for whiting is 232,069 mt. This is calculated by deducting the 35,000–mt tribal allocation and 2,000 mt for research catch and bycatch in nongroundfish fisheries from the 269,069 mt total catch OY. Regulations at 50 CFR 660.323(a)(4) divide the commercial OY into separate allocations for the non-tribal catcher/processor, mothership, and shore-based sectors of the whiting fishery. The catcher/processor sector is comprised of vessels that harvest and process whiting. The mothership sector is comprised of catcher vessels that harvest whiting for delivery to motherships. Motherships are vessels that process, but do not harvest, whiting. The shoreside sector is comprised of vessels that harvest whiting for delivery to shoreside processors. Each sector receives a portion of the commercial OY, with the catcher/processors getting 34 percent (78,903 mt), motherships getting 24 percent (55,696 mt), and the shore-based sector getting 42 percent (97,469 mt). All whiting caught in 2005 before the effective date of this action will be counted toward the new 2005 OY. As in the past, the specifications include fish caught in state ocean waters (0–3 nautical miles (nm) offshore) as well as fish caught in the EEZ (3–200 nm offshore). This document also contains corrections to the Tables 1a and 1b of the final rule implementing the specifications and management measures for the 2005 and 2006 fishing years which was published December 23, 2004 (69 FR 77012). The value in Table 1a and 1b for bocaccio rockfish that indicates the proportions allocated to the limited entry sectors was a typographical error in the specifications final rule and is being corrected from 52.7 to 55.7. Because bocaccio is an overfished species, the use of these values has been suspended for 2005 and 2006; the allocation amount is provided for reference only. Classification The final whiting specifications and management measures for 2005 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)and are in accordance with 50 CFR part 660, the regulations implementing the FMP. The whiting fisheries are generally very fast paced and vessels tend to incidentally catch overfished species at PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 sporadic and unpredictable rates. Protection of overfished species is required by the FMP and implementing regulations. This action revises canary and widow rockfish bycatch limits for the whiting fisheries to keep the harvest of overfished species within their OYs. The proposed rulemaking to implement the 2005 specifications and management measures, published on September 21, 2004 (69 FR 56550), and the final rule published on December 23, 2004 (69 FR 77012) addressed this issue and established bycatch limits for canary and widow rockfish in the whiting fishery. These limits were identified as routine management measures and as such may be adjusted inseason. If the revision of bycatch limits for canary and widow rockfish was delayed for a public notice and comment period, the 4.7 mt of canary rockfish and 200 mt of widow rockfish available to the fisheries could be taken before the completion of the public comment period. Therefore, delaying this final rule could result in unexpectedly high bycatch of canary rockfish such that the annual OY established for rebuilding is exceeded, or that many other portions of the groundfish fishery would have to be closed to make up for bycatch in the whiting fishery. Allowing the fisheries to exceed an overfished species’ OY would be contrary to the public’s interest in rebuilding these overfished species, thus NMFS finds good cause to waive public notice and comment on these revisions, under 5 U.S.C. 553(b)(B). The FMP requires that fishery specifications be evaluated each year using the best scientific information available. A stock assessment update for whiting was prepared in early 2005. In anticipation of the ratification of the U.S.-Canada agreement and the new 2005 stock assessment, the Council delayed adoption of a final 2005 ABC and OY until its March 2005 meeting. Thus these final values were not available to the Council or NMFS in time for the publication of either the proposed (September 21, 2004; 69 FR 56550) or the final rule (December 23, 2004; 69 FR 77012) for the harvest specifications and management measures. Finally, since the major fishery for whiting does not start until April 1, there was time to delay the adoption of the new ABC and OY, until the new assessment information was available to the Council in March 2005. The proposed rulemaking to implement the 2005 specifications and management measures, published on September 21, 2004 (69 FR 56550), addressed the delay in adopting the whiting ABC and harvest specifications. E:\FR\FM\03MYR1.SGM 03MYR1 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations NMFS requested public comment on the proposed rule through October 21, 2004. The final rule was published on December 23, 2004 (69 FR 77012) and again explained that the range in the specifications would be adjusted following the Council’s March 2005 meeting and announced in the Federal Register as a final rule shortly thereafter. This action has been publicized widely through the Council process. For all of the reasons in the waiver for notice and comment plus the additional reasons described above, pursuant to 5 U.S.C. 553(d)(3), there exists good cause to waive the 30–day delay in effectiveness, so that this final rule may become effective as soon as possible after the April 1, 2005, fishery start date. Correcting the ABC/OY tables to provide correct bocaccio allocation amounts between limited entry and open access fisheries merely ensures that the tables correctly state agency policy. These allocations do not apply to the fisheries because bocaccio allocations have been suspended while that species is subject to an overfished species rebuilding plan. NMFS finds good cause to waive public notice and comment on this statement of agency policy under 5 U.S.C. 553(b)(B), because providing notice and comment on these corrections would be unnecessary. Under 5 U.S.C. 553(d)(2) a statement of agency policy that has no effect on the public is not subject to a 30–day delay in effectiveness. The environmental impacts associated with the Pacific whiting harvest levels being adopted by this action were considered in the final environmental impact statement for the 2005–2006 specification and management measures. Copies of the FEIS and the ROD are available from the Council (see ADDRESSES). The Council prepared an Initial Regulatory Flexibility Analysis and NMFS prepared a FRFA for the 2005– 2006 harvest specifications and management measures which included the impacts of this action on small entities. The Initial Regulatory Flexibility (IRFA) was summarized in the proposed rule published on September 21, 2004 (69 FR 56550). The following is a summary of the FRFA analysis that was published in the final rule on December 23, 2004 (69 FR 77012). The need for and objectives of this final rule are contained in the SUMMARY and in the Background section under SUPPLEMENTARY INFORMATION. NMFS did not receive any comments on the IRFA or on the proposed rule regarding the economic effects of this final rule. The final 2005–2006 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 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 protect overfished and depleted stocks. The form of the specifications, in ABCs and OYS, follows 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 other measures intended to allow year-round West Coast groundfish landings without compromising overfished species rebuilding measures. Approximately 1,700 vessels participated in the West Coast commercial groundfish fisheries in 2001. Of those, about 420 vessels were registered to limited entry permits issued for either trawl, longline, or pot gear. Of the remaining approximately 1,280 vessels, about 770 participated in the open access fisheries and derived more than 5 percent of their fisheries revenue from groundfish landings. All but 10–20 of the 1,700 vessels participating in the groundfish fisheries are considered small businesses by the Small Business Administration. In the 2001 recreational fisheries, there were 106 Washington charter vessels engaged in salt water fishing outside of Puget Sound, 232 charter vessels active on the Oregon coast, and 415 charter vessels active on the California coast. Although some charter businesses, particularly those in or near large California cities, may not be small businesses, all are assumed to be small businesses for purposes of this discussion. The Magnuson-Stevens Act requires that actions taken to implement FMPs be consistent with the ten national standards, one of which requires that conservation and management measures shall, consistent with the conservation requirements of the Act, take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities and, (B) to the extent practicable, minimize adverse economic impacts on such communities. Fishing communities that rely on the groundfish resource and people who participate in the groundfish fisheries have weathered many regulatory changes in recent years. NMFS and the Council introduced the first overfished species rebuilding measures in 2000, which severely curtailed the fisheries from PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 22811 previous fishing levels. Since then, NMFS has implemented numerous management measures and regulatory programs intended to rebuild overfished stocks and to better monitor the catch and bycatch of all groundfish species. These programs are expected to improve the status of West Coast groundfish overfished stocks over time and, by extension, the economic health of the fishing communities that depend on those stocks. Initially, however, the broad suite of new regulatory programs that NMFS has introduced since 2000 have: reduced overall groundfish harvest levels, increased costs of participating in the fisheries, and caused confusion for fishery participants trying to track new regulatory regimes. The Council considered five alternative specifications and management measures regimes for 2005 and 2006: the no action alternative, which would have implemented the 2004 regime for 2005 and 2006; the low OY alternative, which set a series of conservative groundfish harvest levels that were either intended to achieve high probabilities of rebuilding within TMAX for overfished species or modest harvest levels for more abundant stocks; the high OY alternative, which set harvest levels that were either intended to achieve lower probabilities of rebuilding within TMAX for overfished species or higher harvest levels for more abundant stocks; the medium OY alternative, which set harvest levels intermediate to those of the low and high alternatives, and; the Council OY alternative (preferred alternative,) which was the same as the medium OY alternative, but with more precautionary OY levels for lingcod, Pacific cod, cowcod, canary and yelloweye rockfish. Each of these alternatives included both harvest levels (specifications) and management measures needed to achieve those harvest levels, with the most restrictive management measures corresponding to the lowest OYS. The most notable difference between the Council’s preferred alternative and the other alternatives is that alternative’s requirement that trawl vessels operating north of 40°10′ N. lat. use selective flatfish trawl gear. Because selective flatfish trawl gear has lower rockfish bycatch rates than conventional trawl gear, the targeted flatfish amounts available to the trawl fisheries are higher under the Council’s preferred alternative than under the other alternatives. Each of the alternatives analyzed by the Council was expected to have different overall effects on the economy. Among other factors, the EIS for this E:\FR\FM\03MYR1.SGM 03MYR1 22812 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations action reviewed alternatives for expected changes in revenue and income from 2003 levels. The low OY alternative was expected to decrease annual commercial income from the no action alternative by $1.99 million in 2005 and 2006, decrease commercial fishery-related annual employment from the no action alternative by 0.3 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The high OY alternative was expected to increase annual commercial income from the no action alternative by $2.54 million in 2005 and 2006, increase commercial fishery-related annual employment from the no action alternative by 0.4 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The medium OY alternative was expected to increase annual commercial income from the no action alternative by $1.51 million in 2005 and 2006, increase commercial fishery-related annual employment from the no action alternative by 0.3 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The Council’s OY alternative was expected to increase annual commercial income from the no action alternative by $3.02 million in 2005 and 2006, increase commercial fishery-related annual employment from the no action alternative by 0.5 percent in 2005 and 2006, and result in no changes in recreational fishery income from the no action alternative. The Council’s preferred alternative would have had commercial fisheries effects that were similar to or less beneficial than the medium OY alternative had the Council preferred alternative not included the requirement that trawl vessels north of 40°10′ N. lat. fish with selective flatfish trawl gear in nearshore waters. The Council’s preferred alternative is intended to meet the conservation requirements of the Magnuson-Stevens Act while reducing to the extent practicable the adverse VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 economic impacts of these conservation measures on the fishing industries and associated communities. Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation with tribal officials during the Council process. This final rule has been determined to be not significant for purposes of Executive Order 12866. List of Subjects in 50 CFR Part 660 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements. Date: April 28, 2005. 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: I PART 660—FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC 1. The authority citation for part 660 continues to read as follows: I Authority: 16 U.S.C. 1801 et seq. 2. In § 660.323, (a)(2) is revised to read as follows: I § 660.323 Pacific whiting allocations, allocation attainment. (a)* * * (2) The non-tribal commercial harvest guideline for whiting is allocated among three sectors, as follows: 34 percent for the catcher/processor sector; 24 percent for the mothership sector; and 42 percent for the shoreside sector. No more than 5 percent of the shoreside allocation may be taken and retained south of 42° N. lat. before the start of the primary whiting season north of 42° N. lat. These allocations are harvest guidelines unless otherwise announced in the Federal Register. The non-tribal PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 Pacific whiting allocations in 2005 are as follows: (i) Catcher/processor sector–78,903 mt(24 percent); (ii) Mothership sector–55,696 mt(34 percent); (iii) Shore-based sector–97,469 mt(42 percent). No more than 5 percent (4,873 mt) of the shore-based whiting allocation may be taken before the shore-based fishery begins north of 42° N. lat. on June 15, 2005. * * * * * I 3. In § 660.373, paragraph (b)(4) is revised to read as follows: § 660.373 Pacific whiting (whiting) fishery management. * * * * * (b) * * * (4) 2005–2006 bycatch limits in the whiting fishery. The bycatch limits for the whiting fishery may be used inseason to close a sector or sectors of the whiting fishery to achieve the rebuilding of an overfished or depleted stock, under routine management measure authority at § 660.370 (c)(1)(ii). These limits are routine management measures under § 660.370 (c) and, as such, may be adjusted inseason or may have new species added to the list of those with bycatch limits. For 2005, the whiting fishery bycatch limits for the sectors identified § 660.323(a) are 4.7 mt of canary rockfish and 200 mt of widow rockfish. For 2006, the whiting fishery bycatch limits are 7.3 mt of canary rockfish and 243.2 mt of widow rockfish. * * * * * I 4. In § 660.385, paragraph (e)is revised to read as follows: § 660.385 Washington coastal tribal fisheries management measures. * * * * * (e) Pacific Whiting. The tribal allocation is 35,000 mt. I 5. Tables 1a and 2a to Part 660, Subpart G, are revised to read as follows: BILLING CODE 3510–22–S E:\FR\FM\03MYR1.SGM 03MYR1 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 22813 ER03MY05.008</GPH> Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations VerDate jul<14>2003 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.009</GPH> 22814 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 22815 ER03MY05.010</GPH> Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations VerDate jul<14>2003 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.011</GPH> 22816 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 22817 ER03MY05.012</GPH> Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations VerDate jul<14>2003 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.013</GPH> 22818 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 22819 ER03MY05.014</GPH> Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations VerDate jul<14>2003 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.015</GPH> 22820 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 22821 ER03MY05.016</GPH> Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations VerDate jul<14>2003 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.017</GPH> 22822 VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 22823 ER03MY05.018</GPH> Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations VerDate jul<14>2003 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4725 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.019</GPH> 22824 Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and Regulations 22825 [FR Doc. 05–8817 Filed 4–28–05; 4:20 pm] VerDate jul<14>2003 14:45 May 02, 2005 Jkt 205001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\03MYR1.SGM 03MYR1 ER03MY05.020</GPH> BILLING CODE 3510–22–S

Agencies

[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 22807-22825]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8817]



[[Page 22808]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.; 040830250-5109-04; I.D. 081304C]
RIN 0648-AS27


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States 
and in the Western Pacific; Pacific Coast Groundfish Fishery; Biennial 
Specifications and Management Measures; Correction

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

ACTION: Final rule; request for comments; correction.

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SUMMARY: This final rule establishes the 2005 fishery specifications 
for Pacific whiting (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). It also adjusts the bycatch limits in the whiting fishery. This 
Federal Register document also corrects the final rule implementing the 
specifications and management measures, which was published December 
23, 2004. These specifications include the level of the acceptable 
biological catch (ABC), optimum yield (OY), tribal allocation, and 
allocations for the non-tribal commercial sectors. The intended effect 
of this action is to establish allowable harvest levels of whiting 
based on the best available scientific information.

DATES: Effective April 28, 2005. Comments on the revisions to bycatch 
limits must be received no later than 5 p.m., l.t. on May 18, 2005.

ADDRESSES: You may submit comments, identified by I.D. 081304C by any 
of the following methods:
     E-mail: Whiting0506.nwr@noaa.gov: Include 081304C in the 
subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 206-526-6736, Attn: Becky Renko
     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky 
Renko.
    Copies of the final environmental impact statement (FEIS) for this 
action are available from Donald McIsaac, Executive Director, Pacific 
Fishery Management Council (Council), 7700 NE Ambassador Place, 
Portland, OR 97220, phone: 503-820-2280. These documents are also 
available online at the Council's website at http://www.pcoucil.org. 
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 D. Robert Lohn, Administrator, 
Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, 
NE, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS) 
206-526-6150.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule is accessible via the Internet at the Office of the 
Federal Register's Website at http://www.gpoaccess.gov/fr/index.html. 
Background information and documents are available at the NMFS 
Northwest Region website at http://www.nwr.noaa.gov/1sustfsh/
gdfsh01.htm.

Background

    A proposed rulemaking to implement the 2005-2006 specifications and 
management measures for the Pacific Coast groundfish fishery was 
published on September 21, 2004 (69 FR 56550). NMFS requested public 
comment on the proposed rule through October 21, 2004. During that 
comment period, NMFS received five letters of comment that were 
addressed in the preamble of the final rule published on December 23, 
2004 (69 FR 77012). Comments regarding bycatch of overfished species, 
including bycatch of overfished species in the whiting fishery were 
received and responded to in the final rule. NMFS received no comments 
specific to the whiting ABC or OY. These comments were addressed in the 
preamble of the final rule. For further information on these comments, 
see the preamble of the final rules for the 2005-2006 annual 
specifications and management measures.

Management Process

    The FMP requires that fishery specifications be evaluated 
biennially or annually and revised as necessary, that OYs be specified 
for groundfish species or species groups that need protection, and that 
management measures designed to achieve the OYs be published in the 
Federal Register. Specifications include ABCs and harvest levels (OYs, 
harvest guidelines, allocations, or quotas). In November 2003, the U.S. 
and Canada signed an agreement regarding the conservation, research, 
and catch sharing of whiting. The whiting catch sharing arrangement 
that was agreed upon provides 73.88 percent of the total catch OY to 
the U.S. fisheries and 26.12 percent to the Canadian fisheries. At this 
time, both countries are taking steps to bring this agreement into 
force. Until the agreement is ratified and implementing legislation 
effective, the negotiators recommended that each country apply the 
agreed upon provisions.
    In anticipation of the ratification of the U.S.-Canada agreement 
and a new stock assessment, and given the small amount of whiting that 
is typically landed under trip limits prior to the April 1 start of the 
primary season, the Council adopted a range for OY and ABC in the 2005-
2006 specifications, and delayed adoption of a final 2005 ABC and OY 
until its March 2005 meeting. To date, the international agreement has 
not yet been ratified and implementing legislation has not yet been 
made effective. The ABC and OY values recommended by the Council as 
final ABC and OY values for 2005 are based on a stock assessment update 
and are within the range of those considered in the EIS for the 2005 
and 2006 management measures.

Stock Status

    In general, whiting is a very productive species with highly 
variable recruitment (the biomass of fish that mature and enter the 
fishery each year) and a relatively short life span when compared to 
other overfished groundfish species. In 1987, the whiting biomass was 
at a historical high level due to an exceptionally large number of fish 
that spawned in 1980 and 1984 (fished spawned during a particular year 
are referred to as year classes). As these large year classes of fish 
passed through the population and were replaced by moderate sized year 
classes, the stock declined. The whiting stock stabilized between 1995 
and 1997, but then declined to its lowest level in 2001.
    The 2002 whiting stock assessment estimated the female spawning 
biomass to be less than 20 percent of the unfished biomass in 2001 and 
was declared overfished on April 15, 2002 (67 FR 18117). Since 2001, 
the whiting stock has increased substantially as a strong 1999 year 
class has matured and entered the spawning population. In retrospect, 
the abundance of the whiting stock in 2001, as estimated from the 
current stock assessment, is now

[[Page 22809]]

believed to have been at 28 percent of its unfished biomass in 2001 
when a survey catchability coefficient of 1.0 is applied, and at 34 
percent of its unfished biomass in 2001 when a survey catchability 
coefficient of 0.6 is applied. With the publication of the 2004 harvest 
specifications for whiting (April 30, 2004; 69 FR 23667), NMFS 
announced that the whiting stock was estimated to be above the target 
rebuilding biomass and was no longer considered to be an overfished 
stock. On June 30, 2004, the court lifted the requirement it had 
initially imposed in the case of Natural Resources Defense Council v. 
Evans, 290 F. Supp. 2d 1051, 1057 (N.D. Calif. 2003) that NMFS prepare 
a rebuilding plan for whiting.

2005 Stock Assessment Update

    An age-structured assessment model was used in 2005 to update the 
2004 whiting stock assessment. New information in this stock assessment 
included updated catch data through 2004 and recruitment indices from 
the 2004 Santa Cruz juvenile index survey. The stock assessment was 
examined by a joint U.S./Canada Pacific Hake (Whiting) Stock Assessment 
Review (STAR) panel in early February 2005.
    As in 2004, the amount of whiting that the 2003 hydroacoustic 
survey was able to measure relative to the total whiting in the 
surveyed area (survey catchability coefficient or q) was identified as 
a major source of uncertainty in the 2005 stock assessment update. 
Since 2005 was an assessment update, the model structure was not 
reexamined. The STAR panel could not reach consensus on the most 
appropriated value within the range for q of 0.6 to 1.0. The more 
optimistic or less risk averse model runs assumed that q equaled 0.6, 
while the less optimistic or more risk averse model runs assumed that q 
equaled 1.0. A catchability coefficient of 1.0 is the value that has 
been used in the previous assessments. Additional models runs with q 
set at 0.8 were developed following the STAR panel meeting.
    Three sets of projections, with different assumptions about the 
survey catchability, were brought forward to the Council for decision 
making. This range of projections was intended to represent a plausible 
range of the stock's status. The Council's Scientific and Statistical 
Committee (SSC) also reviewed the assessment, but did not recommend a 
specific value for q.
    The stock was estimated to be at 50 percent of its unfished biomass 
in 2004 (2.5 million mt of age 3+ fish) if a survey catchability 
coefficient of 1.0 were applied and at 55 percent (4.0 million mt of 
age 3+ fish) of its unfished biomass in 2004 if a survey catchability 
coefficient of 0.6 were applied. However, in the absence of another 
large year class after 1999, the stock is projected to decline. In 
2005, the stock is estimated to be at 38 percent of its unfished 
biomass when a survey catchability coefficient of 1.0 is applied and at 
41 percent when a survey catchability coefficient of 0.6 is applied.
    The U.S. Canada Treaty provisions include the use of a default 
harvest rate of F40% with a 40/10 adjustment, a precautionary harvest 
adjustment described in the FMP at section 4.5.1. A rate of F40% can be 
explained as that which reduces spawning potential per female to 40 
percent of what it would have been under natural conditions (if there 
were no mortality due to fishing).

ABC/OY Recommendations

    The range of ABCs and OYs considered by the Council and analyzed in 
the EIS for 2005 included: a low ABC/OY of 181,287 mt, which represents 
50 percent of the medium ABC/OY; a medium ABC/OY of 362,573 mt, based 
on the results of the 2004 assessment with the OY being set equal to 
the ABC because the stock biomass is greater than 40 percent of the 
unfished biomass; and a high OY of 725,146 mt, which is twice the 
amount of the medium ABC/OY.
    At its March 2005 meeting in Sacramento, CA, the Council reviewed 
the results of the new whiting stock assessment. The U.S. OYs 
considered by the Council at its March meeting were 223,343 mt (q=1.0, 
F45%), 264,296 mt (q=1.0, F40%), 264,296 mt 
(q=0.8, F45%), 316,904 mt (q=0.8, F40%), 356,766 
mt (q=0.6, F45%), and 441,525 mt (q=0.6, F40%). 
Because the whiting biomass is estimated to be below 40 percent of its 
unfished biomass, the 40/10 adjustment was applied. The SSC recommended 
that the Council use the decision table presented in the whiting stock 
assessment (Table 14) to evaluate the consequences of alternate OY 
options on the whiting biomass.
    Following discussion and public testimony, the Council recommended 
adopting a U.S. OY of 269,069 mt with a U.S. ABC of 269,545 mt. In 
making this decision, the Council considered the true state of nature 
as shown in the assessment decision table 14. With an F40% harvest rate 
proxy, if a q value of 1.0 is used and the true state of nature is 
actually 0.6, in 2006 the stock would be at 31 percent of its unfished 
biomass. However, if a q value of 0.6 is used and the true state of 
nature is actually 1.0, the stock is projected to fall below the 
overfished threshold by 2006.
    With the publication of the 2004 harvest specifications for whiting 
(April 30, 2004; 69 FR 23667), NMFS announced that the U.S. whiting ABC 
was 514,441 mt. However, the 515,441 mt value corresponds with the 
coastwide (U.S./Canada) ABC. The 2004 U.S. share of the whiting ABC was 
actually 380,069 mt.

Overfished Species

    The availability of overfished species as incidental catch, 
particularly Pacific ocean perch, canary, darkblotched, and widow 
rockfish, may prevent the industry from harvesting the entire whiting 
OY during 2005. However, in order to allow the industry to have the 
opportunity to harvest the higher OY, the Council recommended bycatch 
limits for certain overfished species. Under this structure, the 
industry has the opportunity to harvest a larger amount of whiting, if 
they can do so while keeping the incidental catch of overfished species 
within adopted bycatch limits. In recent years, the most constraining 
overfished species for the whiting fishery have been darkblotched, 
canary and widow rockfish. In the final rule for the 2005-2006 
specification and management measures, whiting sector bycatch limits 
were put into place for canary and widow rockfish, 50 CFR 660.373 
(b)(4). The amount of canary rockfish that would be available to the 
entire whiting fishery was 7.3 mt and the amount of widow rockfish was 
231.8 mt in 2005.
    At the March 2005 Council meeting, the Council's groundfish 
management team (GMT) considered the 2005 whiting OY alternatives in 
relation to the impacts of incidental catch of overfished species. In 
2004, the estimated bycatch of widow rockfish was most constraining, 
relative to the amounts of each overfished species. For 2005, it is 
estimated that widow bycatch under the final recommended OY would be 
136.25 mt, which is well within the pre-existing 231.8 mt bycatch limit 
for all sectors of the fishery. The Council recommended that the amount 
of widow rockfish specified for the non-treaty whiting sectors be 
adjusted to 200 mt, which should accommodate the needs of the fishery. 
For 2005, it is estimated that canary rockfish bycatch for the entire 
whiting fishery under the final recommended OY would be 9.22 mt, which 
would exceed the pre-existing bycatch limit of 7.30 mt. The GMT 
projected that a canary rockfish bycatch limit of 7.3 mt would support 
a whiting OY of 208,069 mt. Since the regulations at 50 CFR 
370(c)(1)(ii) provide for the closure of the non-tribal portion of the 
whiting fishery upon

[[Page 22810]]

attainment of a bycatch limit, the Council recommended the limit be 
adjusted to only cover the harvest by non-tribal sectors, in order to 
ensure the total canary OY is not exceeded. Thus, the Council 
recommended that the amount of canary rockfish specified for the non-
treaty whiting sectors be adjusted to 4.7 mt. NMFS agrees with the 
bycatch limits, which are intended to keep the whiting fishery from 
causing premature closure to the non-whiting fisheries.

Allocations

    In 1994, the United States formally recognized that the four 
Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and 
Quinault) have treaty rights to fish for groundfish in the Pacific 
Ocean. In general terms, the quantification of those rights is 50 
percent of the harvestable surplus of groundfish that pass through the 
tribes' usual and accustomed ocean fishing areas (described at 60 CFR 
660.324).
    The Pacific Coast Indian treaty fishing rights, described at 50 CFR 
660.385, allow for the allocation of fish to the tribes through the 
specification and management measures process. A tribal allocation is 
subtracted from the species OY before limited entry and open access 
allocations are derived. The tribal 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 
participated. It regulates, and in cooperation with NMFS, monitors this 
fishery so as not to exceed the tribal allocation.
    Beginning in 1999, NMFS set the tribal allocation according to an 
abundance-based sliding scale allocation method, proposed by the Makah 
Tribe in 1998. See; 64 FR 27928, 27929 (May 29, 1999); 65 FR 221, 247 
(January 4, 2000); 66 FR 2338, 2370 (January 11, 2001). Details on the 
abundance-based sliding scale allocation method and related litigation 
are discussed in the preamble to the proposed rule (69 FR 56570; 
September 21, 2004) and are not repeated here. On December 28, 2004, 
the Ninth Circuit Court of Appeals upheld the sliding scale approach in 
Midwater Trawler Cooperative v. Daley, 393 F. 3d 994 (9th Cir. 2004). 
Under the sliding scale allocation method, the tribal allocation varies 
with U.S. whiting OY, ranging from a low of 14 percent (or less) of the 
U.S. OY when OY levels are above 250,000 mt, to a high of 17.5 percent 
of the U.S. OY when the OY level is at or below 145,000 mt. For 2005, 
using the sliding scale allocation method, the tribal allocation will 
be 35,000 mt. The Makah are the only Washington Coast tribe that 
requested a whiting allocation for 2005.
    The 2005 non-tribal commercial OY for whiting is 232,069 mt. This 
is calculated by deducting the 35,000-mt tribal allocation and 2,000 mt 
for research catch and bycatch in non-groundfish fisheries from the 
269,069 mt total catch OY. Regulations at 50 CFR 660.323(a)(4) divide 
the commercial OY into separate allocations for the non-tribal catcher/
processor, mothership, and shore-based sectors of the whiting fishery.
    The catcher/processor sector is comprised of vessels that harvest 
and process whiting. The mothership sector is comprised of catcher 
vessels that harvest whiting for delivery to motherships. Motherships 
are vessels that process, but do not harvest, whiting. The shoreside 
sector is comprised of vessels that harvest whiting for delivery to 
shoreside processors. Each sector receives a portion of the commercial 
OY, with the catcher/processors getting 34 percent (78,903 mt), 
motherships getting 24 percent (55,696 mt), and the shore-based sector 
getting 42 percent (97,469 mt).
    All whiting caught in 2005 before the effective date of this action 
will be counted toward the new 2005 OY. As in the past, the 
specifications include fish caught in state ocean waters (0-3 nautical 
miles (nm) offshore) as well as fish caught in the EEZ (3-200 nm 
offshore).
    This document also contains corrections to the Tables 1a and 1b of 
the final rule implementing the specifications and management measures 
for the 2005 and 2006 fishing years which was published December 23, 
2004 (69 FR 77012). The value in Table 1a and 1b for bocaccio rockfish 
that indicates the proportions allocated to the limited entry sectors 
was a typographical error in the specifications final rule and is being 
corrected from 52.7 to 55.7. Because bocaccio is an overfished species, 
the use of these values has been suspended for 2005 and 2006; the 
allocation amount is provided for reference only.

Classification

    The final whiting specifications and management measures for 2005 
are issued under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act)and are in 
accordance with 50 CFR part 660, the regulations implementing the FMP.
    The whiting fisheries are generally very fast paced and vessels 
tend to incidentally catch overfished species at sporadic and 
unpredictable rates. Protection of overfished species is required by 
the FMP and implementing regulations. This action revises canary and 
widow rockfish bycatch limits for the whiting fisheries to keep the 
harvest of overfished species within their OYs. The proposed rulemaking 
to implement the 2005 specifications and management measures, published 
on September 21, 2004 (69 FR 56550), and the final rule published on 
December 23, 2004 (69 FR 77012) addressed this issue and established 
bycatch limits for canary and widow rockfish in the whiting fishery. 
These limits were identified as routine management measures and as such 
may be adjusted inseason.
    If the revision of bycatch limits for canary and widow rockfish was 
delayed for a public notice and comment period, the 4.7 mt of canary 
rockfish and 200 mt of widow rockfish available to the fisheries could 
be taken before the completion of the public comment period. Therefore, 
delaying this final rule could result in unexpectedly high bycatch of 
canary rockfish such that the annual OY established for rebuilding is 
exceeded, or that many other portions of the groundfish fishery would 
have to be closed to make up for bycatch in the whiting fishery.
    Allowing the fisheries to exceed an overfished species' OY would be 
contrary to the public's interest in rebuilding these overfished 
species, thus NMFS finds good cause to waive public notice and comment 
on these revisions, under 5 U.S.C. 553(b)(B).
    The FMP requires that fishery specifications be evaluated each year 
using the best scientific information available. A stock assessment 
update for whiting was prepared in early 2005. In anticipation of the 
ratification of the U.S.-Canada agreement and the new 2005 stock 
assessment, the Council delayed adoption of a final 2005 ABC and OY 
until its March 2005 meeting. Thus these final values were not 
available to the Council or NMFS in time for the publication of either 
the proposed (September 21, 2004; 69 FR 56550) or the final rule 
(December 23, 2004; 69 FR 77012) for the harvest specifications and 
management measures. Finally, since the major fishery for whiting does 
not start until April 1, there was time to delay the adoption of the 
new ABC and OY, until the new assessment information was available to 
the Council in March 2005.
    The proposed rulemaking to implement the 2005 specifications and 
management measures, published on September 21, 2004 (69 FR 56550), 
addressed the delay in adopting the whiting ABC and harvest 
specifications.

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NMFS requested public comment on the proposed rule through October 21, 
2004. The final rule was published on December 23, 2004 (69 FR 77012) 
and again explained that the range in the specifications would be 
adjusted following the Council's March 2005 meeting and announced in 
the Federal Register as a final rule shortly thereafter. This action 
has been publicized widely through the Council process.
    For all of the reasons in the waiver for notice and comment plus 
the additional reasons described above, pursuant to 5 U.S.C. 553(d)(3), 
there exists good cause to waive the 30-day delay in effectiveness, so 
that this final rule may become effective as soon as possible after the 
April 1, 2005, fishery start date.
    Correcting the ABC/OY tables to provide correct bocaccio allocation 
amounts between limited entry and open access fisheries merely ensures 
that the tables correctly state agency policy. These allocations do not 
apply to the fisheries because bocaccio allocations have been suspended 
while that species is subject to an overfished species rebuilding plan. 
NMFS finds good cause to waive public notice and comment on this 
statement of agency policy under 5 U.S.C. 553(b)(B), because providing 
notice and comment on these corrections would be unnecessary. Under 5 
U.S.C. 553(d)(2) a statement of agency policy that has no effect on the 
public is not subject to a 30-day delay in effectiveness.
    The environmental impacts associated with the Pacific whiting 
harvest levels being adopted by this action were considered in the 
final environmental impact statement for the 2005-2006 specification 
and management measures. Copies of the FEIS and the ROD are available 
from the Council (see ADDRESSES).
    The Council prepared an Initial Regulatory Flexibility Analysis and 
NMFS prepared a FRFA for the 2005-2006 harvest specifications and 
management measures which included the impacts of this action on small 
entities. The Initial Regulatory Flexibility (IRFA) was summarized in 
the proposed rule published on September 21, 2004 (69 FR 56550). The 
following is a summary of the FRFA analysis that was published in the 
final rule on December 23, 2004 (69 FR 77012). The need for and 
objectives of this final rule are contained in the SUMMARY and in the 
Background section under SUPPLEMENTARY INFORMATION. NMFS did not 
receive any comments on the IRFA or on the proposed rule regarding the 
economic effects of this final rule. The final 2005-2006 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 protect overfished and 
depleted stocks. The form of the specifications, in ABCs and OYS, 
follows 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 other measures intended to 
allow year-round West Coast groundfish landings without compromising 
overfished species rebuilding measures.
    Approximately 1,700 vessels participated in the West Coast 
commercial groundfish fisheries in 2001. Of those, about 420 vessels 
were registered to limited entry permits issued for either trawl, 
longline, or pot gear. Of the remaining approximately 1,280 vessels, 
about 770 participated in the open access fisheries and derived more 
than 5 percent of their fisheries revenue from groundfish landings. All 
but 10-20 of the 1,700 vessels participating in the groundfish 
fisheries are considered small businesses by the Small Business 
Administration. In the 2001 recreational fisheries, there were 106 
Washington charter vessels engaged in salt water fishing outside of 
Puget Sound, 232 charter vessels active on the Oregon coast, and 415 
charter vessels active on the California coast. Although some charter 
businesses, particularly those in or near large California cities, may 
not be small businesses, all are assumed to be small businesses for 
purposes of this discussion.
    The Magnuson-Stevens Act requires that actions taken to implement 
FMPs be consistent with the ten national standards, one of which 
requires that conservation and management measures shall, consistent 
with the conservation requirements of the Act, take into account the 
importance of fishery resources to fishing communities in order to (A) 
provide for the sustained participation of such communities and, (B) to 
the extent practicable, minimize adverse economic impacts on such 
communities. Fishing communities that rely on the groundfish resource 
and people who participate in the groundfish fisheries have weathered 
many regulatory changes in recent years. NMFS and the Council 
introduced the first overfished species rebuilding measures in 2000, 
which severely curtailed the fisheries from previous fishing levels. 
Since then, NMFS has implemented numerous management measures and 
regulatory programs intended to rebuild overfished stocks and to better 
monitor the catch and bycatch of all groundfish species. These programs 
are expected to improve the status of West Coast groundfish overfished 
stocks over time and, by extension, the economic health of the fishing 
communities that depend on those stocks. Initially, however, the broad 
suite of new regulatory programs that NMFS has introduced since 2000 
have: reduced overall groundfish harvest levels, increased costs of 
participating in the fisheries, and caused confusion for fishery 
participants trying to track new regulatory regimes.
    The Council considered five alternative specifications and 
management measures regimes for 2005 and 2006: the no action 
alternative, which would have implemented the 2004 regime for 2005 and 
2006; the low OY alternative, which set a series of conservative 
groundfish harvest levels that were either intended to achieve high 
probabilities of rebuilding within TMAX for overfished species or 
modest harvest levels for more abundant stocks; the high OY 
alternative, which set harvest levels that were either intended to 
achieve lower probabilities of rebuilding within TMAX for 
overfished species or higher harvest levels for more abundant stocks; 
the medium OY alternative, which set harvest levels intermediate to 
those of the low and high alternatives, and; the Council OY alternative 
(preferred alternative,) which was the same as the medium OY 
alternative, but with more precautionary OY levels for lingcod, Pacific 
cod, cowcod, canary and yelloweye rockfish. Each of these alternatives 
included both harvest levels (specifications) and management measures 
needed to achieve those harvest levels, with the most restrictive 
management measures corresponding to the lowest OYS. The most notable 
difference between the Council's preferred alternative and the other 
alternatives is that alternative's requirement that trawl vessels 
operating north of 40[deg]10' N. lat. use selective flatfish trawl 
gear. Because selective flatfish trawl gear has lower rockfish bycatch 
rates than conventional trawl gear, the targeted flatfish amounts 
available to the trawl fisheries are higher under the Council's 
preferred alternative than under the other alternatives.
    Each of the alternatives analyzed by the Council was expected to 
have different overall effects on the economy. Among other factors, the 
EIS for this

[[Page 22812]]

action reviewed alternatives for expected changes in revenue and income 
from 2003 levels. The low OY alternative was expected to decrease 
annual commercial income from the no action alternative by $1.99 
million in 2005 and 2006, decrease commercial fishery-related annual 
employment from the no action alternative by 0.3 percent in 2005 and 
2006, and result in no changes in recreational fishery income from the 
no action alternative. The high OY alternative was expected to increase 
annual commercial income from the no action alternative by $2.54 
million in 2005 and 2006, increase commercial fishery-related annual 
employment from the no action alternative by 0.4 percent in 2005 and 
2006, and result in no changes in recreational fishery income from the 
no action alternative. The medium OY alternative was expected to 
increase annual commercial income from the no action alternative by 
$1.51 million in 2005 and 2006, increase commercial fishery-related 
annual employment from the no action alternative by 0.3 percent in 2005 
and 2006, and result in no changes in recreational fishery income from 
the no action alternative. The Council's OY alternative was expected to 
increase annual commercial income from the no action alternative by 
$3.02 million in 2005 and 2006, increase commercial fishery-related 
annual employment from the no action alternative by 0.5 percent in 2005 
and 2006, and result in no changes in recreational fishery income from 
the no action alternative. The Council's preferred alternative would 
have had commercial fisheries effects that were similar to or less 
beneficial than the medium OY alternative had the Council preferred 
alternative not included the requirement that trawl vessels north of 
40[deg]10' N. lat. fish with selective flatfish trawl gear in nearshore 
waters. The Council's preferred alternative is intended to meet the 
conservation requirements of the Magnuson-Stevens Act while reducing to 
the extent practicable the adverse economic impacts of these 
conservation measures on the fishing industries and associated 
communities.
    Pursuant to Executive Order 13175, this final rule was developed 
after meaningful consultation with tribal officials during the Council 
process.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Date: April 28, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, 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 AND IN THE WESTERN 
PACIFIC

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

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

0
2. In Sec.  660.323, (a)(2) is revised to read as follows:


Sec.  660.323  Pacific whiting allocations, allocation attainment.

    (a)* * *
    (2) The non-tribal commercial harvest guideline for whiting is 
allocated among three sectors, as follows: 34 percent for the catcher/
processor sector; 24 percent for the mothership sector; and 42 percent 
for the shoreside sector. No more than 5 percent of the shoreside 
allocation may be taken and retained south of 42[deg] N. lat. before 
the start of the primary whiting season north of 42[deg] N. lat. These 
allocations are harvest guidelines unless otherwise announced in the 
Federal Register. The non-tribal Pacific whiting allocations in 2005 
are as follows:
    (i) Catcher/processor sector-78,903 mt(24 percent);
    (ii) Mothership sector-55,696 mt(34 percent);
    (iii) Shore-based sector-97,469 mt(42 percent). No more than 5 
percent (4,873 mt) of the shore-based whiting allocation may be taken 
before the shore-based fishery begins north of 42[deg] N. lat. on June 
15, 2005.
* * * * *

0
3. In Sec.  660.373, paragraph (b)(4) is revised to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (b) * * *
    (4) 2005-2006 bycatch limits in the whiting fishery. The bycatch 
limits for the whiting fishery may be used inseason to close a sector 
or sectors of the whiting fishery to achieve the rebuilding of an 
overfished or depleted stock, under routine management measure 
authority at Sec.  660.370 (c)(1)(ii). These limits are routine 
management measures under Sec.  660.370 (c) and, as such, may be 
adjusted inseason or may have new species added to the list of those 
with bycatch limits. For 2005, the whiting fishery bycatch limits for 
the sectors identified Sec.  660.323(a) are 4.7 mt of canary rockfish 
and 200 mt of widow rockfish. For 2006, the whiting fishery bycatch 
limits are 7.3 mt of canary rockfish and 243.2 mt of widow rockfish.
* * * * *

0
4. 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 is 35,000 mt.

0
5. Tables 1a and 2a to Part 660, Subpart G, are revised to read as 
follows:
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[FR Doc. 05-8817 Filed 4-28-05; 4:20 pm]
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