Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; a Temporary Rule, 27759-27765 [07-2417]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 95 (Thursday, May 17, 2007)]
[Rules and Regulations]
[Pages 27759-27765]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-2417]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 070510101-7101-01]
RIN 0648-AV57


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; a Temporary Rule

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: NMFS publishes a temporary rule to prohibit any vessel from 
participating in either the mothership, catcher-processor or shoreside 
delivery sector of the directed Pacific whiting (whiting) fishery off 
the West Coast in 2007 if it does not have a history of sector-specific 
participation in the whiting fishery between January 1, 1997, and 
January 1, 2007. This rule is intended to prevent serious conservation 
and management problems that could be caused by new entrants in 2007 
and to maintain the status quo while the Pacific Fishery Management 
Council (Council) addresses the issue of increased effort in the 
whiting fishery through an amendment to the Pacific Groundfish Fishery 
Management Plan (FMP) for the long term.

DATES: The amendments in this rule are effective May 14, 2007 through 
November 13, 2007, except for amendments to Sec. Sec.  660.333 and 
660.335, which are effective May 14, 2007.
    Comments must be received by June 18, 2007.

ADDRESSES: Comments on the management measures and the related 
environmental assessment (EA) may be sent to Frank Lockhart, Assistant 
Regional Administrator for Sustainable Fisheries, Northwest Region, 
NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, fax: 206-526-
6376.
    Comments may be submitted via e-mail at 
Whiting.emergencyrule2007@noaa.gov or at the Federal e-Rulemaking 
Portal: https://www.Regulations.gov.
    Copies of the FONSI and its supporting EA and other documents cited 
in this document are available from Frank Lockhart at the address 
Assistant Regional Administrator for Sustainable Fisheries, Northwest 
Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070. 
Information presented by the Council for this temporary rule is 
available for public review during business hours at the office of the 
Council at 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-
820-2280. Copies of additional reports or testimony referenced in this 
document may also be obtained from the Council.

FOR FURTHER INFORMATION: Frank Lockhart (Northwest Region, NMFS), 
phone: 206-526-6142; fax: 206-526-6736) and e-mail: 
Frank.Lockhart@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    The temporary rule also is accessible via the Internet at the 
Office of the Federal Register's Web site at https://www.gpoaccess.gov/
fr/. Background information and documents, including the EA, 
are available at the Council's Web site at https://pcouncil.org.

Background

    The whiting fishery off the West Coast is managed under the 
Groundfish FMP prepared by the Council and approved by the Secretary of 
Commerce under the Magnuson-Stevens Act. The Council has adopted a 
formal process through which, every two years, it establishes allowable 
catches and associated fishery conservation and management measures for 
most of the groundfish fishery sectors for a biennial management cycle. 
The whiting fishery is managed somewhat differently because there is an 
annual stock assessment on which the Council bases an annual 
determination of the U.S. optimum yield (OY) and the sub-quotas of the 
U.S. OY. Beginning in 1997, the Council makes annual allocations of the 
U.S. OY available to each of three directed fishing sectors: 
Mothership, catcher-processor, and shoreside delivery. Further, the 
directed whiting fishery has a distinct seasonal structure, with the 
primary season start dates for each of the three commercial sectors 
being the same since 1997. The primary seasons for the non-tribal 
catcher/processor and mothership sectors begins May 15. The shoreside 
primary season in most of the Eureka statistical area (between 42[deg] 
north latitude (N. lat.) and 40[deg]30' N. lat.) begins on April 1, and 
the fishery south of 40[deg]30' N. lat. begins April 15. The Pacific 
whiting shoreside fishery north of 42[deg] N. lat. begins on June 15. 
No more than five percent of the shore-based sector allocation may be 
taken in the early season fishery off California before the primary 
season north of 42[deg] N. lat. opens on June 15. This is intended to 
ensure an opportunity for all sectors of the shoreside industry to have 
fair opportunity to engage in the fishery when fish are available to 
them without excessive risk that any one area will receive 
disproportionately large opportunities. It also supports efforts to 
minimize bycatch of rockfish and salmon.
    The current management regime with specific sector allocations and 
differences in area and sector season start dates was first implemented 
for the 1997 fishery (Federal Register: May 20, 1997 (Volume 62, Number 
97)). At that time, the benefits of the sector allocations were to: 
Reduce the uncertainty of the amounts available for each sector, make 
the fishery easier to monitor, and eliminate the ``first-come-first-
serve'' derby style incentives in the fishery associated with the ``no-
action'' alternative as separate allocations encourage each sector to 
operate at a more leisurely and safe pace. By reducing the race for 
fish, separate sector allocations would provide greater incentives for 
vessels to move to other fishing grounds if necessary to lower bycatch 
levels, particularly of yellowtail rockfish and salmon. In addition, 
with separate allocations, each sector would have greater 
accountability and opportunity to minimize bycatch while providing each 
sector the flexibility of starting at different times without losing 
any competitive advantage. It also supported efforts to minimize 
bycatch of rockfish and salmon.
    Since 1997, when sector specific allocations were made, the fishery 
has been fairly stable except for a few recent instances where 
additional rules had to be put in place to protect overfished species 
(2004) and endangered salmon (2005). As in many fisheries, when the 
fishery is stable, most of the participants know each other and have a 
shared interest in maintaining a stable situation. In this instance, 
cooperation includes a common interest in ensuring that bycatch is 
limited because excessive bycatch could close the fishery before the 
whiting quota is reached. Therefore, there is frequent sharing of 
information to ensure that

[[Page 27760]]

areas of high bycatch rates are known and avoided. This communication 
happens throughout the season but is especially crucial early in the 
season when the target species (whiting) and the sensitive bycatch 
species (overfished rockfish and salmon) are highly mobile. This 
communication allows fishing to be prosecuted in areas with high 
probability of large whiting catches with low bycatch. In turn, this 
has provided the directed whiting fishery with a long period to pursue 
the fishery and kept whiting vessels from engaging in other groundfish 
fishing sectors that were under severe economic stress. These are all 
benefits related to the enhanced communication among fishermen within a 
stable fishery.
    In addition, keeping shoreside processing facilities open for 
longer periods also has helped maintain employment opportunities for 
many who otherwise would have been displaced by the severe cutbacks the 
Council had made in other groundfish fishery sectors to prevent 
overfishing and achieve rebuilding of overfished rockfish stocks. There 
is a further benefit to whiting fishers and processors, as the quality 
of the whiting is much better later in the season because the fish had 
regained weight lost during the spawning season. Finally, by shifting 
whiting fishing to later in the season, and through other industry 
voluntary actions and communications, the industry was able to reduce 
its likelihood of high bycatch of overfished rockfish and salmon.
    In 2006, however, there was several shifts in fishery conditions 
that led to Council concern about the potential for major disruptions 
in the whiting fishery and related non-whiting groundfish fisheries. 
There was a significant increase in the ex-vessel price for whiting. 
This attracted several new vessels to the whiting shoreside fishery in 
2006. Second, as rationalization of the Alaska pollock fishery was 
achieved, some vessels, including some American Fisheries Act-qualified 
vessels (AFA vessels), found they could engage in fishing for whiting 
off the West Coast in the spring and early summer and then shift to 
Alaska to take their shares of pollock later in the summer when Alaskan 
fishing conditions were more favorable. Among the new entries to the 
whiting fishery were several AFA vessels. The entry of new vessels to 
the whiting fishery resulted in achievement of the whiting harvest 
limits earlier in the year in 2006 than in 2005 and an earlier closure 
than anticipated of the shoreside sector, adversely affecting 
processors as well as fishers. The Council understood that there was 
the prospect of additional entry of AFA vessels in 2007, as well as 
perhaps additional other vessels in the groundfish fishery.
    The Council originally considered the issue of limiting new vessel 
entry to the whiting fishery in September 2006. At that time, the 
Council recommended that NMFS implement an emergency rule to prevent 
new entry of certain, but not all, vessels into the whiting fishery for 
the 2007 season, as well as prohibit certain vessels that participated 
in the 2006 season. The Council stated its belief that the conservation 
problems that would arise from an accelerated ``race for fish'' if 
certain AFA vessels were allowed to remain in the fishery, or if 
additional AFA vessels were allowed to enter the fishery. The prospect 
of more participation was alarming to the Council, which was concerned 
that additional vessels would result in an accelerated ``race for 
fish,'' with increased harvest rates for whiting. Increased harvest 
rates, especially if the new vessels are of larger capacity or piloted 
by masters unfamiliar with the fishery, could lead to greater (and 
potentially disastrous) bycatch of overfished species of rockfish. In 
addition, the Council was advised by current whiting fishery 
participants that this accelerated race for fish would likely lead to 
higher levels of fishing earlier in the season by the at-sea portion 
(i.e., motherships and catcher/processors) of the fishery; such an 
occurrence could result in higher bycatch of endangered or threatened 
salmon as bycatch rates are documented to be higher in the spring. The 
Council concluded that serious conservation and management problems 
would result from this accelerated ``race for fish'' caused by new 
entry of AFA vessels to the fishery. The Council also noted a concern 
was that new entry of AFA vessels could result in early achievement of 
the U.S. directed harvest quotas, leaving West Coast-based vessels 
facing no fishing or very limited fishing while the AFA vessels could 
return to the rationalized pollock fisheries in which they had an 
interest. However, the Council proposal would have prohibited only 
certain AFA vessels from entry to the fishery for the fist time in 
2007, and would have removed from the fishery only AFA vessels that had 
participated for the first time in 2006. The Council's recommendation 
would not have prevented additional non-AFA vessels from entering the 
fishery.
    In a letter dated January 11, 2007, the Northwest Regional 
Administrator (RA), NMFS, notified the Council that he denied its 
request for an emergency rule. He noted that the Council's action was 
intended to address actual or potential harm to West Coast fishers from 
the AFA, but that the evidence they presented to indicate harm (i.e., 
an earlier closure of the whiting fishery in 2006 than in 2005) was due 
to new participation by both AFA vessels and non-AFA vessels. While 
acknowledging that new market conditions were likely to attract 
additional vessels, he pointed out that the proposed action would have 
denied new entry to a selected category of vessels (i.e., AFA vessels) 
but not all vessels. The RA noted that the guidelines for the use of 
emergency rules call for use of notice-and-comment procedures when 
there are controversial actions with serious economic effects, 
especially when the decision is largely related to allocation and not 
conservation. Further, the Council's remedy would not have fully 
addressed the valid conservation concerns raised by the Council. 
Therefore, the proposal, as with other allocation decisions, would more 
appropriately be handled through the Council's full rulemaking process 
even if there were valid conservation concerns.
    The RA subsequently advised the Council on February 13, 2007, that 
if it were to submit a proposal that dealt more fully with the issue of 
conservation risks and management problems due to potential new entry 
of any new vessels into the directed whiting fishery, NMFS would review 
that proposal on its own merits. NMFS would continue to be concerned if 
the request based the proposed action on the AFA rather than on the 
Magnuson-Stevens Act.
    The Council discussed the issue at its meeting March 9, 2007, 
including the history of the issue, its earlier action, NMFS' rejection 
and indication of a possible remedy, and alternatives available to the 
Council. There were four new pieces of information presented at the 
Council meeting that exacerbated their concern about an increased race 
for fish. First, the price for whiting continues to increase to 
unprecedented levels. Ex-vessel prices increased from $77 per ton in 
2004 to $137 per ton in 2006--nearly doubling since 2004 and increasing 
by more than 22 percent in 2006 from the 2005 price. Industry 
projections for 2007 are that prices will continue to increase to more 
than $176 per ton. Second, the U.S. Optimum Yield (OY) for whiting in 
2007 is 10 percent lower than the OY in 2006. Third, because of higher 
than projected rockfish bycatch rates, the Council took action in March 
2007 that placed new and more severe constraints on non-whiting 
groundfish fishing. This reduces the fishing opportunities for

[[Page 27761]]

these non-whiting sectors. Fourth, the OY for Alaska pollock is reduced 
for 2007.
    All of these recent and unanticipated changes in conditions 
increase the likelihood of an accelerated race for fish: The first by 
making entry more potentially lucrative for additional vessels; the 
second by constraining supply of whiting for harvest and leading to 
more pressure among vessels to quickly capture the limited whiting 
quota; and the third and fourth by increasing the relative 
attractiveness of whiting compared to other fishing opportunities. 
Faced with this new information, the Council adopted and submitted its 
new request that NMFS promulgate an emergency rule that would prohibit 
any vessel from operating in the mothership, catcher-processor, or 
shoreside delivery sector of the whiting fishery in 2007 if it did not 
have a history of sector-specific participation prior to January 1, 
2007. The Council also committed to completing an amendment to its 
Groundfish FMP to resolve issues associated with AFA vessels for the 
long term, consistent with the Magnuson-Stevens Act, the AFA, and other 
applicable law. This could lead to an additional program under 
consideration of an individual fishermen's quota system as early as 
2010.
    NMFS agrees that if this rule is not implemented, an accelerated 
``race for fish'' is likely to cause serious conservation and 
management problems, including excessive bycatch of overfished 
rockfish, excessive catch of endangered and threatened salmon, and 
severe disruption of other groundfish fishery sectors. This rule will 
help maintain stability in the whiting fishery and other groundfish 
fishing sectors in 2007 while the Council completes its FMP amendment 
to resolve groundfish and whiting fishing fleet capacity issues for the 
long term. This rule also provides that parties who invested in 2006 
and early 2007 by purchasing groundfish trawl limited entry permits for 
aggregation and use on a single vessel in the whiting fishery in 2007 
are exempted from the prohibition against subsequently disaggregating 
such permits. This will mitigate financial harm to such parties who 
invested in good faith without knowing that this emergency rule could 
be implemented. The rule also contains provisions to allow a person who 
transferred a permit to a ``prohibited'' vessel (a vessel not eligible 
to participate in the fishery) can reverse that action and return the 
permit to the previous vessel or transfer it to a vessel that is 
eligible. Normally, a permit can only be transferred once a year. This 
person was not aware of the prospect of an emergency rule when he 
transferred the permit. Fairness justifies this exception to the 
regulation.
    For purposes of implementing the Council request, which is for 
control of entry on a sector-by-sector basis, NMFS is using 1997 as the 
base year. That is the first year in which the three sectors began 
being considered for separate sub-quotas and management controls. State 
landings data, observer records, and NORPAC industry reports will be 
the sole evidence to demonstrate eligibility based on historic sector-
specific participation.

Public Comments and Issues

    At the Council meeting, the Council took comment on the issue prior 
to taking action. There were numerous expressions of support for the 
action as well as some comments opposed to the action. In addition, the 
Northwest Region and the Council have received written comments since 
the Council action was taken. At the meeting, fishers who commented 
were divided; some opposed the action while most testifying before the 
Council supported it. While most of those testifying stated their 
belief that allowing new entrants would cause a conservation problem, 
there was some testimony that a problem would not occur. Some argued 
that leaving the fishery open to new entry could result in a high 
probability of intensive fishing early in the season leading to 
conservation problems (especially with respect to bycatch), while 
others argued that the catch limit on whiting provided assurance that 
there would not be any threat to whiting, and that the limits on 
bycatch provided protection to overfished rockfish. There was agreement 
that there is an allocation issue that the Council needs to resolve. 
Some urged the Council to address this for the longer term through 
Amendment 15 without an emergency rule, while others supported an 
emergency rule to allow the fishery to proceed as it has in recent 
years (i.e., in a stable manner) without new entry while the Council 
develops Amendment 15. A spokesperson for the recreational sector 
supported the emergency rule as it could reduce the risk of excessive 
bycatch of salmon and rockfish, which in turn would reduce the risk of 
further constraints on recreational fishing for groundfish. A West 
Coast processing industry member also spoke in favor of the emergency 
rule.
    The West Coast state officials voting at the meeting all supported 
the emergency rule. The California state official made the motion for 
the emergency rule, expressing concern about the increased risk of 
excessive bycatch and noting restrictive actions the Council has taken 
toward other groundfish fishery sectors to prevent bycatch problems. 
NMFS believes it is likely that increased capacity in the whiting 
fishery could exacerbate such problems. It was noted that the whiting 
limit for 2007 is lower than in 2006, and thus there is a greater risk 
that new participation would lead to more intensive competition and 
problems. California also pointed out the risk of management problems 
if the whiting fishery were to close earlier than normal and whiting 
fishers were to place more pressure on other groundfish fishery 
sectors, thereby exacerbating problems in those sectors as well as 
coastal communities. Oregon's representative on the Council was 
strongly in favor of the emergency rule as the state was concerned that 
additional entry would result in intensive early fishing, with high 
risk of excessive rockfish and salmon bycatch. Further, an early 
closure of the fishery would have severe adverse impacts on coastal 
processors in Oregon and elsewhere. It is notable that Washington's 
representative had opposed the proposed emergency in September 2006 but 
was now convinced that 2007 presented different and unforeseen 
conditions. Washington noted that the Council's proposal would not 
force out any person who had participated in 2006. Washington supported 
action as reducing the risk of adverse impacts on rockfish (especially 
noting concern about canary rockfish) and salmon. The Washington 
representative also noted that this would be a one-year action; it will 
be incumbent on the Council to address the capacity issue for the long-
term in a timely manner.
    The Pacific Whiting Conservation Cooperative (Cooperative) 
recommended that the Council request the emergency rule. The 
Cooperative subsequently submitted written comments (see below).
    A processor who has recently invested in shoreside facilities has 
written NMFS in favor of keeping the fishery open, which in this 
context means to not freeze new entry to the shoreside processing 
sector.
    A company that invested in 2006 by purchasing limited entry permits 
and combining them on a single vessel with the intent of entering the 
fishery in 2007 objected to the emergency rule proposal. In this 
company's view, there is no ``emergency'' pursuant to NMFS' guidelines 
for the use of emergency authority, especially for the entry of 
additional processing capacity or a

[[Page 27762]]

catcher/processor vessel. They noted that NMFS disapproved the 
Council's September 2006 proposal, and the reasons for that disapproval 
would apply in this instance as well. They noted that the Council could 
have used its normal decision processes to establish additional 
measures to manage the whiting fishery and had chosen not to do so; in 
their view, nothing has changed so significantly as to warrant 
emergency regulations. They also noted that the permits acquired to 
allow their vessel to qualify under the limited entry program were from 
active vessels, so their prospective new entry would only replace 
existing capacity rather than add to the capacity of the fleet. Their 
letter identifies the specific analyses that they maintain would be 
needed to satisfy Magnuson-Stevens Act requirement for management 
regulations and asserts that such analyses would show that the ``best 
scientific information available'' does not support an emergency rule.

Subsequent Public Comments on the Emergency Rule Proposal

    At the Council meeting, following the vote on the proposed 
emergency action, the NMFS representative invited written public 
comment on the prospective action while the Council prepared the actual 
submission for NMFS consideration, requesting that they be submitted 
within two weeks. NMFS wanted to be sure it had as complete an 
understanding as possible on the range of issues and concerns that 
various parties would have on this matter. During this period, the 
following comments were received:
    The Pacific Whiting Conservation Cooperative wrote reiterating its 
support for emergency action. It noted that the voluntary industry 
arrangement that results in the slow pace of fishing early in the 
season and that includes collaboration and communication to avoid 
bycatch would likely end if there were new entry to the fishery. It 
indicated that there would be a ``race for fish'' leading to all the 
problems discussed by the Council when it agreed to request emergency 
action.
    The State of Oregon submitted supplemental comments, reiterating 
its concerns about the risk of excessive bycatch of rockfish as well as 
the economic disruption to the West Coast whiting fishing fleet and to 
West Coast processors and their employees if there were early closure 
of the whiting fishery for any reason.
    One party suggested that the emergency rule request be approved 
only with respect to the entry of new harvesting vessels. This would 
mean that additional mothership operations could enter the fishery in 
2007. This party suggested that it would be beneficial to other whiting 
fishers to increase the number of potential buyers of fish.
    Two sets of comments were received from representatives of the 
mothership sector. They favored the proposed action, with special 
emphasis on ensuring that eligibility for participation is on a sector-
specific basis, and that eligibility in 2007 be based on sector-
specific participation beginning in 1997.

Responses to Comments

    Because the conservation concerns raised by the Council in 2006 
still exist and because, unlike their 2006 request, the Council's 
proposed remedy fully addresses those concerns by encompassing all 
vessels that could potentially enter the whiting fishery absent this 
rule, NMFS believes that the available information demonstrates that 
emergency action is warranted. This conclusion is further supported by 
the new information received in late 2006 and early 2007. These 
conditions may pose an unacceptably high risk that there would be 
serious conservation and management problems if no action is taken. The 
Council has been responsive to NMFS' objections to the prior request 
for emergency action and has taken the broader action required to 
address the problem in the short term, and has committed to action to 
resolve the whiting fishery capacity issue in the long-term through an 
amendment to the Groundfish FMP. NMFS notes that the emergency rule 
would be in effect for at most one year, and that the rule contains 
provisions intended to minimize financial harm to those who may have 
invested to participate in the fishery in 2007 not knowing they would 
be precluded from utilizing the investment in the fishery. NMFS notes 
further the critical need to ensure that bycatch limits on overfished 
rockfish not be exceeded so that the stocks can rebuild in accordance 
with the approved rebuilding plans.
    NMFS agrees with the Council that the risks of serious economic 
disruptions in the event of excessive catch of rockfish are very high 
if there were no control to stop entry into the whiting fishery at 
least for 2007. NMFS also agrees that the risk of loss of industry 
cooperation in the fishing year would pose serious risks of loss of 
control over bycatch. With respect to the potential to allow new 
mothership operations, NMFS concludes that this would not fully address 
the risks of an accelerated ``race for fish,'' with consequent risk of 
early fishing and in turn excessive bycatch. Again, the cooperation of 
industry is vital to ensuring a stable fishery with minimal bycatch. 
NMFS determined that applying the prohibition on new entry only to the 
catcher sectors would not address the problem; the entry of additional 
at-sea processors could also lead to an accelerated race for fish as 
more parties compete for the available sector allocation, with a higher 
likelihood of a breakdown in communication and cooperation leading to 
excessive risk of heavy early season fishing with high bycatch and 
fishery disruptions. NMFS agrees that the Council intended that 
eligibility be determined on a sector-specific basis, and has 
determined that 1997 should be used as the initial year for 
qualification of participation in the fishery on a sector-specific 
basis. This was the first year in which management of the domestic 
whiting fishery was managed on a sector-specific basis.

Evaluation of Emergency Rule Request Against Agency Guidelines

    NMFS has considered the Council's request and the information on 
which the request is based. NMFS considered also the information in the 
Council's final environmental impact statement (FEIS) for its biennial 
harvest limits and conservation and management measures. This includes 
extensive information on the status of stocks and the economic status 
of the fisheries and the dependency of communities which are dependent 
on those fisheries. NMFS has evaluated the proposal against its 
guidelines for the use of emergency rules, published at 62 FR 44421 
(August 21, 1997), which sets forth criteria that must be met to 
warrant emergency rules. Each of the criteria is discussed below.

1. The Situation Results From Recent, Unforeseen Events or Recently 
Discovered Circumstances

    Two years ago, it could not have been foreseen that Pacific whiting 
would be a much more important component of the West Coast groundfish 
fisheries as well as a potential target of Alaska fishers. As noted 
earlier, in 2005 and 2006, ex-vessel prices for whiting increased 
dramatically, and the industry projection is that prices will continue 
to rise in 2007. The U.S. OY for whiting in 2007 is down 10 percent 
from the 2006 level, so the supply of whiting for the U.S. industry 
will lead to increased competition even without new entry. The Council 
acted in March 2007 to further restrict non-whiting fishing due to 
higher than anticipated rockfish bycatch rates; this puts new pressure 
on those other sectors and makes whiting relatively more attractive, 
and could

[[Page 27763]]

promote shifting of effort to whiting if no action were taken to 
prevent it. Finally, while the OY for Alaska pollock is reduced and 
rationalization of the Alaska pollock fishery allows many vessels that 
normally fish in Alaska to set their own schedules for catching a share 
of the harvest. The pollock fishery would be available later in the 
year, if desired; these vessels (many of which have or could obtain 
West Coast trawl limited entry permits) could choose to fish for 
Pacific whiting early in the year and, when the whiting quota is 
reached, shift operations to Alaska to fish for pollock. These vessels 
have the capability (i.e., equipment and gear) to fish for whiting with 
little or no added cost. Taken together, these new and unforeseen 
conditions support a high likelihood of new entry to the whiting 
fishery in 2007 if no action were taken. This would result in 
unacceptably high risk of conservation and management problems.

2. The Situation Presents Serious Conservation or Management Problems 
in the Fishery

    As noted, the whiting stock is thoroughly monitored and assessed 
annually, and the results are generally accepted as presenting an 
accurate assessment of the stock. The U.S. and Canada have agreed to a 
Treaty for joint management of the stock and for sharing the 
harvestable surplus. Given the Council's relatively conservative 
harvest strategy for whiting, there is little reason for serious 
conservation concern about the current and future condition of the 
Pacific whiting stock.
    However, it is also generally true that the more participants in a 
fishery managed under quotas, the greater the likelihood that 
conservation will become a concern, and especially in the case where 
the fishery is still subject to new entry. Quite simply, new entry 
encourages more intensive fishing as soon as a fishery is open as 
participants fear they will not catch a fair share of the available 
fish if they do not fish early. In turn there is greater pressure to 
fish hard with possibly less regard for minimizing waste or bycatch. 
This is especially true in the whiting fishery, in which industry 
cooperation has been a vital element in controlling the pace of the 
fishery and in sharing information so that participants would avoid 
areas of high bycatch and thus help each other extend the season as 
long as possible. As noted above, this cooperation would be less likely 
to continue if new entrants were allowed into the fishery without 
limit. A breakdown in cooperation and communication would be likely to 
result in an accelerated race for fish and the consequent unacceptably 
high risk of excessive bycatch and fishery disruptions. If fishing is 
conducted more intensely, there is likely to be less care to avoid 
bycatch and more likelihood of ``disaster'' tows with extremely high 
bycatch levels. This would be especially true if the new entrants were 
high capacity vessels with a need to fill up fast to cover costs, or if 
the vessel were captained by a person not familiar with the fishery and 
unable to adjust to high bycatch rates. This could lead to early 
closure of the whiting fishery if bycatch limits are reached; it is 
important to note that if a bycatch limit is reached, even if only by 
one sector, fishing by all sectors of the whiting fishery must cease. 
For perspective, in early June 2004 a vessel in the mothership sector 
had a single tow of fish estimated to contain 3.9 mt of canary, which 
is equal to 83 percent of the 2007 whiting fishery bycatch limit for 
non-tribal whiting fisheries. An accelerated race for fish could well 
result in closure of the whiting fishery before the annual quota of 
whiting is reached, resulting in serious loss of income and employment 
both to fishers and to processing facilities. Accelerated fishing for 
Pacific whiting in the spring is also likely to result in incidental 
catches of salmon in excess of the incidental take allowances under 
biological opinions issued under the ESA. Also, as pointed out above, 
the yield per fish is greater later in the season than earlier, so 
pressure to fish early is likely to result in less usable and less 
valuable product.
    In summary, allowing new entry to the whiting fishery in 2007 is 
likely to result in serious conservation and management problems.
    The situation can be addressed through emergency regulations for 
which the immediate benefits outweigh the value of advance notice, 
public comment and deliberative consideration of the impacts on 
participants to the same extent as would be expected under the normal 
rulemaking process.
    The benefit of immediate action is that it provides for greater 
stability in the 2007 Pacific whiting fishery while the Council 
completes action on the amendment to manage the fishery over the long 
term, possibly including conservation and management measures to deal 
with AFA impacts as well as the impacts of otherwise unlimited entry 
into the whiting fishery. The Council can use its established planning 
process and the Secretary can use notice and comment rulemaking 
procedures for implementing the long-term strategy and measures. There 
is little cost as only new entry would be prohibited; any vessels that 
participated prior between January 1, 1997, and December 31, 2006, 
inclusive, would be eligible to participate in 2007. It can be argued 
that the fishery is already overcapitalized, but at least there would 
not be further overcapacity due to additional new entry to the fishery 
for short-term gain at the expense of those with a long-standing 
interest in the fishery.
    It is known that at least one party invested in 2006 by buying 
limited entry permits and aggregating them for application of a single 
permit on a single vessel intended to participate in the whiting 
fishery in 2007. There may be other such situations. The regulations 
for the limited entry permit program currently do not allow a permit 
established through aggregation of multiple permits to be subsequently 
disaggregated. However, to alleviate financial harm to any who in good 
faith made investments as described, the emergency rule provides for an 
exception from the prohibition against disaggregation of permits. The 
investor(s) may then be able to recapture at least a portion of the 
investment that might otherwise be lost. In addition, one party is 
known to have tried to register a permit for use on a ``prohibited'' 
vessel; the rule includes a provision allowing such parties to register 
their permits for alternate, eligible vessels in such cases.
    As noted above, NMFS has established that 1997 is the initial year 
for which sector participation will be considered in determining 
eligibility for a particular sector of the whiting fishery in 2007. 
State landings data, Pacific Fishery Information Network (PacFIN) data, 
observer data, and NORPAC industry reports as appropriate to the 
sector, will be the sole evidence to demonstrate the sector-specific 
eligibility of vessels.

Classification

    The Assistant Administrator finds good cause under 5 U.S.C. 
553(b)(B) to waive the requirement for prior notice and opportunity for 
public comment, as such procedures are impracticable and contrary to 
the public interest.
    The season for the primary West Coast Pacific whiting fishery 
opened April 15 south of 42[deg] N. latitude (lat.) and opens May 15 
south of 42[deg] N. lat. The normal seasonal pattern of the fishery 
(and the pattern that the Council believes is necessary to prevent 
adverse impacts on fish stocks as well as on established fisheries) is 
to have relatively little fishing early in the season with expanded 
fishing later in the year, and with the fishery extending through the 
summer. This has been achieved in

[[Page 27764]]

recent years, at least in part, because of voluntary action by an 
industry group that has worked hard to ensure that the season will last 
well into the summer or fall as long as the whiting quota allows it. 
This allows less fishing when there are high bycatch rates for rockfish 
and salmon, and more fishing when bycatch rates are lower.
    As noted above, there were several new pieces of information 
supporting the expectation of additional entry to the fleet in 2007. 
First, the price for whiting continues to increase to unprecedented 
levels, ex-vessel prices have increased from $77 per ton in 2004 to 
$137 per ton in 2006--nearly doubling since 2004, and increasing by 
over 22% compared to 2005. Industry projections for 2007 are that 
prices will continue to increase to over $176 per ton. Second, the U.S. 
Optimum Yield of whiting was reduced by 10% for the 2007 season 
compared to 2006. Third, because of higher than projected rockfish 
bycatch rates, the Council took action in March that placed more severe 
constraints on non-whiting groundfish fishing. Fourth, the quota for 
Alaskan pollock was reduced this year. All of these recent changes 
increase the chance of an accelerated race for fish: The first by 
making entry more lucrative for additional vessels, the second by 
constraining supply of whiting and leading to more pressure among 
vessels to quickly capture the more limited supply of whiting, and the 
third and fourth by increasing the relative attractiveness of entering 
the whiting fishery this year.
    Without this emergency rule, new entry is likely early in the 
season; if this happens, the voluntary limitation of early season 
fishing will likely cease to be effective, resulting in more intensive 
early season fishing and higher bycatch levels. It also would likely 
result in early achievement either of a bycatch limit (causing early 
closure of the whiting fishery) or of the whiting catch quota (also 
causing early closure of the whiting fishery). Fishers from Alaska 
could return to Alaska; West Coast-based vessels would not have that 
alternative and would either be idled or would add to pressure in the 
severely constrained other sectors of the groundfish fishery. In the 
worst case, the whiting fishery would catch so much in excess of its 
rockfish bycatch limits that the Council would be forced to impose even 
more limits on the other groundfish fishery sectors to keep total 
bycatch within the total limits. The emergency rule maintains the 
status quo in the fishery at least through 2007, while the Council 
develops a long-term management program to achieve stability for the 
future. Providing opportunity for prior notice and public comments on 
the Council's requested action for 2007 would delay the rule to the 
extent that the benefits of the rule would be nullified and the 
protection of the resources intended by the rule would not be provided.
    The proposed action will have beneficial effects on current 
participants in the Pacific whiting fishery and on participants in 
other groundfish fisheries. Without this action, it is fairly certain 
that there would be additional entry into the fishery, meaning greater 
competition for the available harvest (the U.S. whiting OY is reduced 
by 10% from the 2006 harvest level) and a greater likelihood of an 
``accelerated race for fish.'' This would be expected to result in 
early closure of the directed whiting fishery, which in turn could lead 
to idle capacity (for those who do not have the ability to shift to 
other fisheries or other groundfish sectors) or excess capacity 
shifting to other groundfish fisheries. Such a shift would exacerbate 
the economic difficulty being experienced in those non-whiting sectors 
due to severe constraints on fishing levels and areas available for 
fishing. In one possible scenario, the no action alternative would 
result in rockfish bycatch limits for the groundfish fisheries being 
exceeded in the whiting fishery at levels that would require additional 
reductions in other groundfish fishing sectors targeting healthy 
groundfish stocks.
    Therefore, NMFS has concluded it is impracticable and contrary to 
the public interest to provide an opportunity for prior notice and 
public comment under 5 U.S.C. 553(b)(B). For the same reasons as 
discussed above, the Assistant Administrator also finds that good cause 
exists under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness of this rule. As previously discussed, this rule is 
necessary to prevent the conservation and management problems that 
would arise from additional entry to the Pacific whiting fishery in 
2007. Without this rule, there will be new entry, and current stability 
in the fishery, with low bycatch of rockfish and salmon, will likely 
dissolve. This would pose an unacceptable risk of excessive bycatch of 
overfished rockfish and of salmon as well as an unacceptable risk of 
severe management problems in the economically stressed groundfish 
fishery.
    This temporary rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    An environmental assessment was prepared for this action under the 
National Environmental Policy Act and a Finding of No Significant 
Impact was signed on May 4, 2007.
    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing.

    Dated: May 11, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.


0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

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

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


0
2. In Sec.  660.306, paragraph(f)(6) is added to read as follows:


Sec.  660.306  Prohibitions.

* * * * *
    (f) * * *
    (6) Fish for or land whiting, or process whiting at sea, while 
participating in a specific sector (as defined at Sec.  660.373(a)), 
from May 14, 2007 and through November 13, 2007 with a vessel that has 
no history of participation within that specific sector of the whiting 
fishery in the period after December 31, 1996, and prior to January 1, 
2007, as specified in Sec.  660.373(j).

0
3. In Sec.  660.333, paragraph (f) is added to read as follows:


Sec.  660.333  Limited entry fishery--eligibility and registration.

* * * * *
    (f) Limited entry permits indivisible. Nothwithstanding paragraph 
(d), a trawl-endorsed limited entry permit that was created between 
December 31, 2006, and May 14, 2007 by aggregating multiple limited 
entry permits under Sec.  660.335(b) may be disaggregated back into the 
initially combined component permits.

0
4. In Sec.  660.335, paragraph (f)(3) is added to read as follows:


Sec.  660.335  Limited entry permits--renewal, combination, stacking, 
change of permit ownership, and transfer.

* * * * *
    (f) * * *
    (3) Any transfer of a trawl-endorsed limited entry permit that 
occurred between December 31, 2006, and May 14, 2007 may be rescinded 
by the permit

[[Page 27765]]

owner without counting against that permit owner's once per calendar 
year restriction on frequency of permit transfers for the 2007 calendar 
year.
* * * * *

0
5. In Sec.  660.373, paragraph (j) is added to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (j) 2007 Pacific whiting fishery. (1) In general, a person may fish 
for or land whiting or process whiting at sea in a sector of the 
whiting fishery (as defined at Sec.  660.373(a)) between May 17, 2007 
and November 13, 2007 only with a vessel that has history of 
participation in that sector of the whiting fishery in the period after 
December 31, 1996, and prior to January 1, 2007. Specifically:
    (i) To harvest whiting in the shore-based sector between May 17, 
2007 and November 13, 2007, a vessel must have harvested for delivery 
to a shore-based processor at least 4000 lbs (1.81 mt) of whiting in a 
single trip during the primary season (as defined at Sec.  660.373(b)) 
in the period after December 31, 1996, and prior to January 1, 2007. 
State fish ticket data collected by the states and maintained by 
Pacific States Marine Fisheries Commission's Pacific Fishery 
Information System is the sole evidence to demonstrate participation in 
this sector.
    (ii) To harvest whiting in the mothership sector between May 17, 
2007 and November 13, 2007, a vessel must have harvested whiting for 
delivery to motherships in the period after December 31, 1996, and 
prior to January 1, 2007. Observer data collected by the Northwest 
Fisheries Science Center and by North Pacific Groundfish Observer 
Program as organized under the Alaska Fisheries Science Center's NORPAC 
database is the sole evidence to demonstrate participation in this 
sector.
    (iii) To process whiting in the mothership sector between May 17, 
2007 and November 13, 2007, a vessel must have processed at sea, but 
not harvested, whiting in the period after December 31, 1996, and prior 
to January 1, 2007. Observer data collected by the Northwest Fisheries 
Science Center and by North Pacific Groundfish Observer Program as 
organized under the Alaska Fisheries Science Center's NORPAC database 
is the sole evidence to demonstrate participation in this sector.
    (iv) to harvest and process whiting in the catcher-processor sector 
between May 17, 2007 and November 13, 2007, a vessel must have 
harvested and processed whiting in the period after December 31, 1996, 
and prior to January 1, 2007. Observer data collected by Northwest 
Fisheries Science Center and by North Pacific Groundfish Observer 
Program as organized under the Alaska Fisheries Science Center's NORPAC 
database is the sole evidence to demonstrate participation in this 
sector.
    (2) [Reserved]

[FR Doc. 07-2417 Filed 5-14-07; 8:58 am]
BILLING CODE 3510-22-P