Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2009-2010 Biennial Specifications and Management Measures, 9874-9949 [E9-4371]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 43 (Friday, March 6, 2009)]
[Rules and Regulations]
[Pages 9874-9949]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4371]



[[Page 9873]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 660



Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2009-2010 Biennial Specifications and 
Management Measures; Final Rule

Federal Register / Vol. 74, No. 43 / Friday, March 6, 2009 / Rules 
and Regulations

[[Page 9874]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0809121213-9221-02]
RIN 0648-AX24


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; 2009-2010 Biennial Specifications and 
Management Measures

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

ACTION: Final rule.

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SUMMARY: This final rule sets the 2009-2010 harvest specifications and 
management measures for groundfish taken in the U.S. exclusive economic 
zone (EEZ) off the coasts of Washington, Oregon, and California and it 
revises rebuilding plans for four of the seven overfished rockfish 
species, consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and the Pacific Coast Groundfish Fishery Management 
Plan. Together, the revisions to rebuilding plans and the 2009-2010 
harvest specifications and management measures are intended to rebuild 
overfished stocks as soon as possible, taking into account the status 
and biology of the stocks, the needs of fishing communities, and the 
interaction of the overfished stocks within the marine environment.

DATES: Effective March 1, 2009.

FOR FURTHER INFORMATION CONTACT: Gretchen Arentzen (Northwest Region, 
NMFS), phone: 206-526-6147, fax: 206-526-6736 and e-mail 
gretchen.arentzen@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This final rule 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 are available at the Pacific 
Fishery Management Council's Web site at https://www.pcouncil.org/.

Background

    NMFS published a proposed rule to implement the 2009-2010 
groundfish harvest specifications and management measures on December 
31, 2008, (73 FR 80516). The proposed rule requested comments through 
January 30, 2009. NMFS received eight letters of comment, which are 
addressed later in the preamble to this final rule. See the preamble to 
the proposed rule for additional background information on the fishery 
and on this final rule.
    The amount of each Pacific Coast groundfish species or species 
group that is available for harvest in a specific year is referred to 
as a harvest specification. Harvest specifications include acceptable 
biological catches (ABCs), optimum yields (OYs), and harvest guidelines 
(HGs). Harvest specifications may also include ``set-asides'' of 
harvestable amounts of fish.
    The ABC is a biologically based estimate of the amount of fish that 
may be harvested each year without affecting the sustainability of the 
resource. The ABC may be modified with precautionary adjustments to 
account for uncertainty. An OY is a target harvest level for a species 
or species group. The OYs may be set equal to the ABC for the species 
or species group, but are often set lower as a precautionary measure. 
The Council's policies on setting ABCs, OYs, and other harvest 
specifications are discussed later in the preamble to this final rule. 
Harvest specifications for 2009-2010 are provided in Tables 1a through 
2c.
    Management measures for 2009-2010 work in combination with the 
existing regulations to create a management structure that is intended 
to constrain fishing so the catch of overfished groundfish species does 
not exceed the rebuilding-based OYs while allowing, to the extent 
possible, the OYs for healthier groundfish stocks that co-occur with 
the overfished stocks to be achieved. In order to rebuild overfished 
species, allowable harvest levels of healthy species will only be 
achieved where such harvest will not deter rebuilding of overfished 
stocks.

Comments and Responses

    During the comment period for the 2009-2010 harvest specifications 
and management measures proposed rule, NMFS received eight letters of 
comment. The Makah Tribe and the Quileute Tribe each submitted letters 
of comment concerning the tribal allocation for Pacific whiting. The 
Department of the Interior submitted a letter stating they had no 
comment. California Department of Fish and Game, Washington Department 
of Fish and Wildlife, and Oregon Department of Fish and Wildlife 
submitted editorial and technical corrections to be made in the final 
rule to make it consistent with the Pacific Council action. One letter 
of comment was sent jointly by four environmental advocacy 
organizations (Natural Resources Defense Council, Pacific Marine 
Conservation Council, Ocean Conservancy, and Marine Fish Conservation 
Network; hereinafter, ``The Four Organizations.'') Santa Monica Seafood 
sent a letter of comment in support of precautionary and sustainable 
fishery management. Substantive comments received on the proposed rule 
are addressed here:

Makah Tribe

    Comment 1: The Makah Tribe supported the proposed rule, and focused 
their comments on the portion of the rule that addressed tribal treaty 
fisheries for Pacific whiting. They believe that the total allocation 
of whiting to the treaty tribes should be sufficient to meet the needs 
of each tribe participating in the fishery, as reasonably determined by 
the tribes themselves, and that each tribe should be responsible for 
managing the portion of the allocation necessary to meet its needs and 
minimizing bycatch. The Makah believe that the proposed rule is 
consistent with these principles, and addresses the possibility of a 
race for fish and any associated exceedence of bycatch limits.
    Response: NOAA agrees that the rule reflects the approach described 
by the Makah, and that a goal of the tribal whiting portion of the rule 
is to accommodate the tribal treaty right and to avoid a race for fish 
and excessive bycatch.

Quileute Tribe

    Comment 2: The Quileute Tribe believes that the proposed rule's 
division of the tribal whiting allocation into ``set-asides'' for the 
Makah Tribe and the Quileute Tribe is inconsistent with court rulings 
in United States v. Washington and with prior NOAA practice.
    Response: As stated in the proposed rule, the tribal set-asides for 
2009 are based on timely requests made to the Council, consistent with 
the schedule for the implementation of tribal fisheries set forth in 50 
CFR 660.324(b). Both the Makah Tribe and the Quileute Tribe made timely 
requests for the 2009 whiting fishery for consideration at the June 
2008 Council meeting. At this meeting, and at additional meetings and 
discussions among the tribal, state, and federal co-managers, NOAA 
reached an understanding that the Quileute anticipated harvesting up to 
8,000 mt and that the Makah anticipated harvesting up to 42,000 mt, for 
a total tribal allocation of 50,000 mt. Fifty thousand metric tons, 
while higher that previous tribal allocations, is still clearly within 
the treaty right given the current knowledge of the distribution

[[Page 9875]]

and abundance of the coastal whiting stock. At its June 2008 meeting, 
the Council recommended this amount and the individual tribal set-
asides for further analysis.
    Following the Council's recommendation and the issuance of the DEIS 
analyzing that recommendation and the associated bycatch, the Quileute 
Tribe stated its intent to harvest up to 24,000 mt of whiting in the 
2009 fishery. The tribes have not reached agreement regarding the 
division of the tribal share for 2009 in light of the Quileute Tribe's 
later, larger harvest estimate. Without clear management targets for 
each tribe, a race for fish may occur as whiting migrate from south to 
north, reaching the Quileutes usual and accustomed fishing areas (U&A) 
before they reach the Makah U&A. A race for fish could result in 
excessive bycatch of overfished species, and the closure of other 
groundfish fisheries.
    The division of the tribal share of whiting into set-asides for the 
individual tribes is not inconsistent with either the court rulings in 
United States v. Washington or NOAA's past practice. These set-asides 
are not formal allocations, nor do they create precedent for future 
years. They are, however, necessary under the circumstances to ensure 
that the tribal and non-tribal fisheries are conducted in an orderly 
manner and bycatch limits of overfished species are not exceeded. The 
tribes bear the primary responsibility for dividing the tribal share of 
the fish. U.S. v. Washington, 384 F. Supp. 312, 417 (1974). However, 
the court has also emphasized the importance of close coordination 
between the co-managers to ensure that the fishery resource is properly 
managed and conserved. See, e.g., U.S. v. Washington, 520 F.2d 676, 685 
(9th Cir. 1975). In several instances, the court has ordered the co-
managers to share information on a schedule, and to consult with each 
other on the management of the fisheries. See, e.g., U.S. v. 
Washington, 459 F. Supp. 1020, 1035-38 (W.D. Wash. 1978); U.S. v. 
Washington, 626 F. Supp. 1405, 1420 (W. D. Wash. 1985). The process and 
schedule for the implementation of new tribal fisheries set forth in 50 
CFR 660.324(b) is consistent with the co-management responsibility the 
court has described. The goal of the schedule is to integrate 
consideration of the tribal fisheries into the Council's process for 
determining annual groundfish harvest specifications. Close 
coordination in planning for tribal and non-tribal fisheries is 
particularly important given the severe limits imposed on the west 
coast groundfish fisheries in order to rebuild overfished species such 
as canary and yelloweye rockfish. NOAA is responsible under the MSA for 
minimizing bycatch and preventing overfishing, and must carry out this 
responsibility consistent with the tribes' treaty fishing rights. 
Further, as trustee for all of the tribes, the Federal Government has a 
responsibility to ensure that one tribe's exercise of its treaty right 
does not prevent another tribes' exercise of that right. The regulatory 
processes for implementing the tribal fisheries and the tribal set-
asides for 2009 are consistent with these legal mandates.
    The Council has asked NOAA to work with the tribal, state, and 
Federal co-managers to develop a proposal for the tribal whiting 
fishery for 2010 and beyond. NOAA has begun the process of developing 
scientific information for use in achieving this goal, in consultation 
with the tribal and state co-managers. Specifically, NOAA hopes to 
reach consensus with the other co-managers on the appropriate tribal 
allocation, and to provide the tribes with information that may assist 
them in reaching agreement on the division of the tribal share in the 
future. NOAA does not intend to allocate the total tribal whiting 
allocation to the individual tribes. Should the tribes fail to reach 
consensus regarding the division of that amount amongst themselves in 
the future, NOAA will consider initiating litigation to resolve this 
issue in order to ensure that the fishery is conducted in a manner that 
accommodates the treaty rights of the tribes, and avoids excessive 
bycatch.
    Comment 3: The Quileute Tribe argues that the proposed set-asides 
unfairly favor the Makah Tribe because the Makah set-aside is 
significantly larger than the Quileute set-aside, even though at least 
as many whiting pass through the Quileute U&A as pass through the Makah 
U&A.
    Response: As described above, the tribal set-asides for 2009 are 
based on the tribes' own estimates of the size of their harvests, not 
on any independent analysis by NOAA. Further, the set-asides for 2009 
do not create any sort of precedent for future tribal fisheries. 
Ideally, the tribes will reach consensus on the division of the total 
tribal share for 2010 and beyond.

California Department of Fish and Game, Washington Department of Fish 
and Wildlife, and Oregon Department of Fish and Wildlife

    Comment 4: The California Department of Fish and Game (CDFG) 
submitted a list of 20 editorial, technical, and corrective comments on 
the proposed rule. The comments ranged from edits on capitalization to 
proposing clarifying revisions to the regulatory text for California's 
recreational groundfish fisheries. Washington Department of Fish and 
Wildlife had one minor comment on incidental catch of lingcod in the 
salmon troll fishery. Oregon Department of Fish and Wildlife suggested 
corrections to the ABC/OY tables.
    Response: None of the CDFG comments represent fundamental 
revisions, but propose to correct the final rule so that it is 
consistent with the Pacific Council's final action. Much of the 
preamble text, to which the first four CDFG comments pertain, is not 
repeated or revised in this final rule. Therefore, though NMFS agrees 
with these four editorial comments, no revisions are made to this final 
rule. NMFS also agrees with the remainder of the comments and has 
revised the following regulatory paragraphs in response to these 
comments: Sec.  660.384; Table 1a, Table 1c, and Table 2a; and Sec.  
660.394. The lingcod comment from Washington Department of Fish and 
Wildlife was addressed in Table 5 (North). Comments from Oregon 
Department of Fish and Wildlife were addressed in ABC/OY tables 1a, 1b, 
1c, 2a, 2b, and 2c. These changes are explained below in the section 
Changes from the Proposed Rule.
    Comment 5: In their comment letter (Comment 9), CDFG requests that 
NMFS add language to Sec.  660.390--Groundfish Conservation Areas that 
refers readers to the California Recreational Fishery regulations, at 
Sec.  660.384(c), so that they can see the effective periods of each 
particular area closure.
    Response: The introductory regulatory text to section Sec.  660.390 
states that, `` * * * Fishing activity that is prohibited or permitted 
within a particular groundfish conservation area is detailed at 
Sec. Sec.  660.381 through 660.384.'' This introductory text was not 
published in the proposed rule, as no revisions to this language were 
proposed. NMFS feels that the clarification requested by CDFG is 
already captured in the existing regulatory language, and therefore has 
not made any revisions in this final rule.

The Four Organizations

    Comment 6: The Four Organizations urged NMFS to manage blue 
rockfish separately from the minor nearshore complex and set a 
precautionary OY that reduces catch below the 2007 level given 
scientific suspicion that this species may be experiencing overfishing.
    Response: NMFS will continue to manage blue rockfish under the 
minor nearshore rockfish complexes and to

[[Page 9876]]

establish a 220 mt harvest guideline (HG) for all California fisheries. 
The 220 mt HG is below the assessment ABC of 241 mt in 2009 (223 mt 
north of Pt. Conception from base model in the assessment plus 18 mt 
for south of Pt. Conception) and 239 mt in 2010 (221 mt north of Pt. 
Conception from base model in the assessment plus 18 mt for south of 
Pt. Conception) and is therefore a prescribed harvest level below the 
overfishing threshold. California Department of Fish and Game (CDFG) 
has committed to maintaining harvests below this HG and has the 
authority to enact more precautionary management measures if necessary 
(see section 4.3.2.1 in the DEIS for more details). Blue rockfish are 
covered by the California Nearshore Fishery Management Plan and are 
harvested primarily inside state waters off California, so California 
has the greater ability to control the harvest of blue rockfish. They 
have indicated they will take management measures as necessary to stay 
within harvest guidelines.
    Comment 7: The Four Organizations urged NMFS to schedule 
greenspotted rockfish for assessment in the 2009-2010 cycle per the SSC 
recommendation.
    Response: Deciding which groundfish stocks to assess in 2009 is not 
part of this final rule. NMFS notes that the assessment schedule, 
developed by the Council in close coordination with NMFS and the 
states, is based on a variety of factors, including data availability 
and workload issues for all involved.
    Comment 8: The Four Organizations urged NMFS to conduct an 
assessment of and design specific protection measures for bronzespotted 
rockfish as scientific data indicate it is vulnerable to fishing and 
that landings have declined dramatically; they also urged NMFS to keep 
the preferred alternative choice of a no-retention policy.
    Response: As per the response on greenspotted rockfish, deciding on 
whether an assessment of bronzespotted rockfish is done is not a part 
of the proposed action. Given the scientific information on 
bronzespotted rockfish, which is summarized in the FEIS, NMFS is 
prohibiting retention of bronzespotted rockfish in all west coast 
fisheries, which will greatly reduce fishing mortality, since 
historical data indicate that the stock was targeted when it was 
encountered. The available scientific information also suggests that 
bronzespotted rockfish are distributed in the same habitats as cowcod 
and continuing the Cowcod Conservation Areas should contribute to 
conservation of the stock. In the proposed rule, regulatory language at 
Sec.  660.384(c)(3)(iii)(B) mistakenly neglected to add bronzespotted 
rockfish to the list of species that may not be retained in the 
California recreational fishery. In the final rule, this section is 
revised to add bronzespotted rockfish to the list of species that may 
not be retained in the California recreational fishery. Also, NMFS adds 
species specific trip limits for bronzespotted rockfish, to designate 
it as ``closed'', in Tables 3 (South), 4 (South), and 5 (South). These 
actions are consistent with the FEIS.
    Comment 9: The Four Organizations urged NMFS to conduct a spiny 
dogfish stock assessment in the 2009-2010 timeframe. They assert that 
spiny dogfish are a slow-growing species which is ``experiencing 
crashes and red listings within its range.''
    Response: NMFS notes again that the assessment schedule is not part 
of this final rule and is based on a variety of factors, including data 
availability and workload issues. As discussed in NMFS response to 
comments in Chapter 15 of the FEIS, NMFS has considered that the 
general life history characteristics of spiny dogfish make the species 
generally vulnerable to overexploitation. However, trip limits in 
combination with Rockfish Conservation Areas (RCAs), are intended to 
reduce the total catch of dogfish over historical catch levels. NMFS 
assumes that the reference to ``red listings'' refers to the 
International Union for Conservation of Nature (IUCN) red list, which 
does not appear to include Pacific spiny dogfish. It should also be 
noted that there does not appear to be the same potential threats to 
spiny dogfish populations in the northeast Pacific compared to other 
regions where they occur.
    Comment 10: The Four Organizations urged NMFS to rebuild 
darkblotched rockfish within 10 years, which they assert is required 
under the Magnuson-Stevens Act; in the event that NMFS does not follow 
this course of action, at a minimum NMFS should implement an OY no 
higher than the 2006 OY level of 200 mt to reflect the new biological 
understanding that the stock is rebuilding more slowly than previously 
thought.
    Response: The Magnuson-Stevens Act requires a rebuilding period 
that is as short as possible, taking into account the appropriate 
statutory factors, and that does not exceed 10 years unless it is 
biologically impossible. In the groundfish FMP, Tmin is the 
minimum time to rebuild a stock from the onset of the rebuilding plan 
or the first year of rebuilding. Tmin is the predicted time 
to rebuild a stock in the absence of fishing (a zero-harvest strategy) 
and was established when the original rebuilding plan for darkblotched 
was developed. The revised rebuilding plan for darkblotched begins by 
determining the time to rebuild under a zero-harvest strategy starting 
with the implementation of the revised rebuilding plan; this is 
referred to as T0 or T at F=0. Both Tmin and 
T0 are estimated in the groundfish rebuilding analyses and 
these estimates are provided in Tables 2-3 and 2-5 in the FEIS. From 
Table 2-5, the current estimate of Tmin for darkblotched is 
2015 and, from Table 2-3, the current estimate of T0 for 
darkblotched is 2018. What this means, given our current understanding 
of darkblotched status and productivity, is that the stock could have 
been rebuilt by 2015 if a zero-harvest strategy had been adopted from 
the onset of rebuilding in 2002 (the stock was declared overfished in 
2001) or the stock could be rebuilt by 2018 if a zero-harvest strategy 
is adopted beginning in 2009, which is the shortest rebuilding period 
that can be currently considered for rebuilding darkblotched, based on 
the best information available now.
    The Four Organizations imply that a zero-harvest strategy is a 
Magnuson-Stevens Act mandate for the revised rebuilding plan since the 
stock can now be rebuilt within ten years under a zero-harvest 
strategy. This does not make sense, since that reasoning would require 
a zero-harvest strategy whenever a stock is potentially within ten 
years of being rebuilt at any point in the rebuilding period.
    The darkblotched rebuilding plan, as well as all west coast 
groundfish rebuilding plans, relies on a strategy to rebuild in as 
short a time as possible while taking into account the status and 
biology of the depleted stock, the needs of fishing communities, and 
the interaction of the depleted stock within the marine ecosystem. As 
described in section 2.1.1 of the FEIS, this rebuilding objective was 
underscored in an August 2005 ruling in the Ninth Circuit Court of 
Appeals, which resulted in reconsideration of all west coast groundfish 
rebuilding plans under FMP Amendment 16-4 in 2006. The resulting 
darkblotched OYs in 2007 and 2008 were specified in accordance with the 
Amendment 16-4 rebuilding plan, considering the time to rebuild, the 
needs of west coast fishing communities, and other appropriate factors. 
Setting the 2009 and 2010 darkblotched OY no higher than the 2006 OY of 
200 mt would cause significant negative impacts to west coast fishing 
communities as evidenced

[[Page 9877]]

by the analyses in the Amendment 16-4 EIS, and the analyses used to 
decide the preferred OYs for 2009 and 2010 in the FEIS.
    The rebuilding approach under Amendment 16-4 does not consider the 
harvest and rebuilding of darkblotched rockfish in isolation from the 
harvest and rebuilding of other groundfish species. Changes in the OYs 
for any of the overfished species affect the time to rebuild for that 
species and the ability of fishermen to harvest other species of 
groundfish, including healthy species. Similarly, changes in OYs for 
groundfish species have differing economic impacts on West Coast 
fishing communities. For these reasons, the Four Organizations have 
taken a limited perspective on the darkblotched rebuilding plan. 
Consistent with Amendment 16-4, NMFS took a programmatic perspective 
for 2009 and 2010 and examined all rebuilding plans, and their impacts 
on communities, simultaneously. In doing so, NMFS considered both time 
to rebuild and needs of communities in the decision for all changes to 
rebuilding plans and selection of overfished species OYs.
    Darkblotched rockfish is one of the most important overfished 
species in relation to the overall health of commercial fisheries and 
their communities, because its rebuilding OY limits access to some of 
the most valuable target stocks (Dover sole, thornyheads, sablefish, 
petrale sole, and to some degree, Pacific whiting). Therefore, a 
relatively small reduction in darkblotched harvest in one year will 
result in a relatively large reduction in the amount of the target 
species that can be harvested. Because marginal changes in the 
darkblotched harvest rate have a relatively large effect on economic 
benefits from the groundfish commercial fisheries, a darkblotched OY 
that is slightly less conservative than those for other overfished 
species and results in a slightly longer rebuilding period is 
justified.
    Comment 11: The Four Organizations urged NMFS to adopt an OY of 44 
mt or 85 mt for canary rockfish in light of the fact that the 2007 OY 
of 44 mt was manageable and that the new, more optimistic stock 
assessment has considerable uncertainty.
    Response: Considerable analysis of the new canary rockfish stock 
assessment, the new canary rockfish rebuilding analysis, and the 
alternative 2009 and 2010 OYs resulting from the new assessment and 
rebuilding analysis was done in the process leading to NMFS's decision 
on a canary rockfish OY of 105 mt. The Stock Assessment Review (STAR) 
panel and the Council's Scientific and Statistical Committee (SSC) that 
critically evaluated the new canary rockfish assessment in 2007 
recommended the new, more optimistic assessment as the best available 
science. While there is uncertainty in the new canary rockfish 
assessment, the new assessment is considered superior to previous 
canary rockfish assessments by the STAR panel and the SSC.
    NMFS disagrees with the Four Organizations' assertion that the 105 
mt canary rockfish OY ``prioritizes economic gain over rebuilding 
within the statutorily required timeframe''. The reductions in 
groundfish harvest imposed by the canary rockfish rebuilding plan have 
created significant adverse economic impacts on all sectors of the west 
coast groundfish fishery. As shown during the development of Amendment 
16-4 and continuing now, many of the most economically vulnerable ports 
are losing their infrastructure and seeing many fishing-related 
business losses.
    In addition to the impacts predicted during the development of 
Amendment 16-4, following the adoption of 2007-2008 groundfish harvest 
specifications and management measures, the Council received updated 
observer data that indicated canary rockfish bycatch was higher than 
previously thought. As a result, at the April, 2007 Council meeting, 
the Council recommended inseason adjustments to management measures in 
order to keep overall harvest levels within the canary rockfish OY. As 
a result, NMFS expanded the size of the RCAs, closing off several 
important grounds for fishing communities off the Washington and Oregon 
coasts (72 FR 19390, April 18, 2007). This resulted in community 
impacts in 2007 and 2008 that were worse than had been anticipated. The 
regulations and management measures initially established for 2007 were 
much less restrictive than those now in place as a result of the more 
recent observer data. Significantly, in the remote fishing community of 
Neah Bay, all areas actively fished by the non-tribal trawl fleet were 
closed, eliminating much of the fishing activity occurring in that port 
and community. Other communities may not have been harmed to the same 
degree, but were certainly impacted more than anticipated when the 
2007-2008 groundfish harvest specifications and management measures 
were developed and analyzed. Vessels in Astoria, for example, lost much 
of their access to fishing grounds shoreward-of-the-trawl RCA, an area 
relied upon heavily in the past. The 44 mt OY was, and would continue 
to be, extremely restrictive in the trawl fishery, as well as for other 
sectors.
    The Council's SSC and National Standard 1 guidelines generally 
recommend a constant harvest rate strategy for rebuilding plans. 
However, in view of the requirement to rebuild as quickly as possible 
while taking into account the appropriate factors, the Council's 
preferred 2009-2010 canary rockfish OY of 105 mt actually lowers the 
status quo harvest rate in the current rebuilding plan (maintaining the 
status quo SPR harvest rate of F88.7 would equate to 
a 2009-2010 OY of 155 mt). Further, the preferred alternative changes 
the target rebuilding year from 2063 to 2021. Table 2-3 and Figure 2-2 
in the FEIS show the tradeoff in rebuilding duration under the 
alternative harvest rates analyzed to decide 2009-2010 OYs. One 
additional year of rebuilding is the ``cost'' of increasing the OY from 
44 mt to 105 mt. Another way to look at it is that an OY of 105 mt 
results in only two additional years of rebuilding relative to the 
zero-harvest of canary rockfish beginning in 2009. Because canary 
rockfish is found along most of the coast, out to approximately 150 
fathoms, zero-harvest would result in nearly total closure of the 
recreational fisheries along the coast and large closures for both 
trawl and longline fisheries. Therefore, the preferred alternative for 
canary rockfish responsibly uses the information in the most recent 
assessment to rebuild the stock while taking into account the needs of 
the fishing communities.
    Comment 12: The Four Organizations urged NMFS to adhere to the 
rebuilding plan adopted in 16-4 for yelloweye rockfish and not modify 
it to allow higher take in 2010. Additionally, they assert that the 
modified rebuilding plan has a lower probability of rebuilding than 
under the original ramp-down plan.
    Response: The revised rebuilding plan for yelloweye rockfish 
essentially maintains the status quo rebuilding plan adopted under FMP 
Amendment 16-4 by maintaining the target rebuilding year and 
maintaining the SPR harvest rate scheduled to be in place once the 
constant harvest rate strategy begins in 2011. The harvest is ramping 
down from the OY levels in 2007 and 2008 (23 mt and 20 mt respectively) 
to 17 mt in 2009 as specified in the status quo rebuilding plan. The 
modification is that in 2010, the OY will remain at 17 mt rather than 
be reduced to 14 mt, as specified in the status quo rebuilding plan. 
The harvest of yelloweye rockfish under the status quo rebuilding plan 
in 2010 would take 1.29 percent of the spawning biomass in

[[Page 9878]]

that year. Under the revised rebuilding plan, 1.56 percent will be 
taken. This slight modification occurs in only one year of the 
rebuilding plan and provides no appreciable difference in the time or 
probability to rebuild between this alternative and the status quo 
plan. Table 4-10 in the FEIS that shows the rebuilding probability for 
yelloweye rockfish under both the preliminary and final preferred 
alternative are essentially the same, as calculated to one tenth of one 
percent.
    The Four Organizations allege that there is no quantitative 
analysis to support the view that implementing a lower yelloweye OY in 
2010 would have unacceptably severe impacts on fishing communities. 
NMFS disagrees. As an example, in terms of California recreational 
fisheries, yelloweye is the most constraining species north of Pt. 
Arena. A 2010 yelloweye rockfish OY of 17 mt provides for an additional 
three months of fishing in that area, as opposed to a 2010 OY of 14 mt. 
See Figures 2-41 and 2-51 in the FEIS.
    Avoiding yelloweye rockfish in line gear fisheries has proven 
extremely difficult. The Council and NMFS have been progressively 
specifying more conservative management measures to achieve the target 
yelloweye rockfish harvest rate in the rebuilding plan. New recommended 
management measures for 2009 and 2010, such as expanding the size of 
the non-trawl RCA by extending it seaward and shoreward in areas north 
of 40[deg]10[min] N. latitude, are designed to maintain yelloweye 
rockfish impacts below the target harvest prescribed in the rebuilding 
plan. As noted in the FEIS (see sections 2.1.1.7 and 4.3.1.1), the 
slightly higher yelloweye rockfish harvest rate in 2010 under the 
preferred alternative is recommended in large part due to higher than 
anticipated yelloweye bycatch in the northern California recreational 
groundfish fishery in 2007 and to allow one more year to determine 
effective management measures, including potential new Yelloweye RCAs 
(YRCAs) needed to minimize bycatch of yelloweye rockfish in a manner 
that minimizes potential impacts.
    Comment 13: The Four Organizations urged NMFS to analyze and 
determine a threshold of economic activity below which a disaster would 
occur and structure the rebuilding alternatives to analyze incremental 
increases of overfished species OY. In addition, the Four Organizations 
assert that NMFS has failed to show that the groundfish fishery is 
experiencing a ``disaster.''
    Response: Declaration of a ``disaster threshhold'' is not a 
requirement under MSA or any other applicable laws. The appropriate 
standard is set out in the MSA. The analysis of socioeconomic impacts 
associated with overfished species OYs uses the same framework adopted 
under Amendment 16-4 for rebuilding plans and the 2007-2008 harvest 
specifications. Under this framework, impacts to west coast fishing 
communities associated with rebuilding alternatives are analyzed based 
on each community's dependence on the groundfish fishery and the 
general economic resilience of that community to changes in fishing 
opportunities. Communities that are highly dependent on the groundfish 
fishery and with very low resilience to changes in economic activities 
associated with groundfish fishing are considered more vulnerable to 
negative socioeconomic impacts under more conservative rebuilding 
alternatives. Each community is differentially affected by an 
individual species rebuilding plan based on that species distribution 
and the way that species rebuilding plan affects the fisheries that 
contribute to the community's economic infrastructure. This is a more 
realistic approach for assessing impacts on communities since different 
communities suffer such different impacts.
    However, to put the ``disaster threshold'' question in its proper 
context, one must consider that the current non-whiting groundfish 
fishery is much more constrained today under the full range of 
overfished species OYs analyzed for the 2009-2010 management period 
than those that were specified prior to and during the year 2000 when 
the west coast groundfish fishery was declared a federal disaster. That 
is, there are far fewer groundfish fishing opportunities available 
today under the more conservative management regime than there were 
during the late 1990s and 2000. This is driven by the groundfish 
rebuilding plans that today dictate the amount of fishing opportunity 
that can be considered.
    Comment 14: The Four Organizations submitted detailed comments 
challenging the rebuilding approach adopted under Amendment 16-4. The 
Four Organizations assert that NMFS prioritizes short-term economic 
gains over the rebuilding of overfished species. They urged the agency 
to adopt and implement the paradigm that is mandated by the MSA and the 
9th Circuit Court. The Four Organizations assert that the 
``interrelated'' framework approach of Amendment 16-4 undermines the 
statutory requirement to rebuild as quickly as possible and that the 
agency has offered no scientific basis for treating the overfished 
species and their OYs as ``interrelated.'' They specifically state that 
``The agency is allowing more bycatch of the overfished species that it 
deems to be in slightly better shape in an effort to compensate 
fishermen for having to stay away from ones in worse shape. Nothing in 
the MSA allows the agency to make this trade-off between more fishing 
of some overfished species and less than others.'' In addition, the 
Four Organizations urge NMFS to adopt Alternative 3 instead of the 
current preferred alternative as Alternative 3 rebuilds overfished 
species more quickly and the DEIS analysis fails to demonstrate it 
would cause disastrous consequences.
    Response: As explained in response to Comment 10, consistent with 
Amendment 16-4, NMFS took a programmatic perspective for 2009 and 2010 
and examined all rebuilding plans, and their impacts on communities, 
simultaneously. In doing so, NMFS considered both time to rebuild and 
needs of communities in the decision for all changes to rebuilding 
plans and selection of overfished species OYs. Consistent with the 9th 
Circuit's recognition that different species of groundfish co-exist in 
the fishery when it stated that the MSA ``allows the Agency to set 
limited quotas that would account for the short-term needs of fishing 
communities (for example, to allow for some fishing of plentiful 
species despite the inevitability of bycatch), even though this would 
mean that the rebuilding period would take longer than it would under a 
total fishing ban.'' Natural Resources Defense Council v. NMFS, 421 F. 
3d 872,880 (9th Cir. 2005) at 11423. The rebuilding approach does not 
consider the harvest and rebuilding of one groundfish species in 
isolation from the harvest and rebuilding of other groundfish species. 
Changes in the OYs for any of the overfished species affect the time to 
rebuild for that species and the ability of fishermen to harvest other 
species of groundfish, including healthy species. Similarly, changes in 
OYs for different groundfish species have differing economic impacts on 
West Coast fishing communities.
    Short rebuilding time periods, after taking into account the 
appropriate statutory factors, have been the first priority to the 
Council and the agency during the development and implementation of 
Amendment 16-4. Specifically for the 2009-2010 specifications, a wider 
range of alternative OYs was analyzed for the seven overfished species 
managed

[[Page 9879]]

under the groundfish FMP than for the other, healthier stocks. This was 
due to the need to periodically evaluate the effectiveness of 
management measures to rebuild these stocks and to fully evaluate new 
stock status information that became available through stock 
assessments. Rebuilding OYs chosen by the Council for analysis in the 
DEIS encompass a reasonable range of alternatives, including 0 mt to 
higher OYs.
    The DEIS analyses approach the harvest specifications decision by 
first considering the implications to stock rebuilding by evaluating 
alternative OYs using the criteria of catch monitoring uncertainty, 
stock assessment uncertainty, the level of stock depletion, rebuilding 
probabilities, and the extended duration of rebuilding (see DEIS 
section 4.2). These evaluations are used to rank the risk of 
alternative OYs in achieving rebuilding objectives at the individual 
stock level. This evaluation specifically looks at the tradeoff of 
potential fishing opportunities provided by progressively higher OYs 
versus extending rebuilding periods for these species. The next step is 
to systematically range OY alternatives for all seven species in 
concert (termed rebuilding alternatives in the DEIS) to generally gauge 
how these different OY suites may affect fishing opportunities on the 
west coast shelf and slope. This analysis recognizes that available 
yields for each overfished species differentially affect fisheries 
spatially both latitudinally and in distance from the shore, as well as 
by the selectivity of the various fishing gears deployed on the west 
coast to catch that species. For instance, yelloweye rockfish OY 
alternatives have a greater effect on fisheries deploying line gears on 
the northern shelf while widow OY alternatives are more likely to 
affect the ability of whiting-directed trawl fisheries to successfully 
harvest their whiting allocations. Finally, the analysis projects the 
socioeconomic impacts to west coast fishing communities by ranking 
communities based on their dependence on groundfish fisheries 
constrained by rebuilding OYs and their resilience to changes in 
economic activity affected by fishing opportunities. This multi-tiered 
analytical approach to rebuilding all the overfished species is 
designed to appropriately address the Magnuson-Stevens Act mandate to 
rebuild in as short a time as possible while taking into account the 
status and biology of the depleted stock, the needs of fishing 
communities, and the interaction of the depleted stock within the 
marine ecosystem.
    Alternative 3 OYs are in some cases more conservative than status 
quo rebuilding plans and in other cases more liberal. This is because 
all rebuilding plans, except the yelloweye rockfish plan during the 
harvest rate ramp-down period, specify a constant harvest rate strategy 
as recommended by the Council's SSC and National Standard 1 guidelines. 
As discussed in response to Comment 11, the higher Alternative 6 OY for 
canary rockfish comports to the status quo rebuilding plan since that 
OY is determined using the specified SPR harvest rate of 
F88.7%. The Alternative 3 OY, which maintains the 2007-2008 
canary rockfish OY of 44 mt, is much more conservative than an OY 
calculated under the status quo rebuilding plan. Alternative rebuilding 
OYs need to be considered on a case by case basis and need to consider 
much more than how the OY changes from one management period to the 
next.
    NMFS disagrees that the rebuilding plan gives priority to economic 
interests over rebuilding. In taking into account the needs of fishing 
communities, the Council and NMFS recognize that fishing communities 
have, for a number of years, already seen their economic activities 
curtailed in order to rebuild overfished species. The analysis in the 
DEIS provides information and analyses on individual community impacts 
and broader coastwide fishery impacts of groundfish fishery management 
focused on rebuilding overfished species. The analysis identifies 
classes of communities according to attributes of fishery dependence, 
resilience, and vulnerability. In comparing these community attributes 
to amounts of overfished species, target groundfish species and other 
target species (crab, shrimp, etc.) associated with these communities, 
NMFS found that there were few regions on the West Coast without a 
highly dependent or vulnerable groundfish fishing community.
    In addition to severely reduced groundfish fishing opportunities, 
in May, 2008, a commercial fishery failure was declared for the West 
Coast salmon fishery. The unprecedented collapse of Sacramento River 
Fall Chinook, combined with the exceptionally poor status of coho 
salmon from Oregon and Washington, led officials to close all 
commercial and sport Chinook ocean fishing off California and most of 
Oregon in 2008. This 2008 salmon closure left thousands of commercial 
fishermen and dependent commercial and recreational businesses 
struggling to make ends meet. In response to a request for $290 million 
in disaster aid by the Governors of Washington, Oregon, and California, 
Congress appropriated $170 million in disaster aid to affected 
commercial fishermen and affected commercial and recreational 
businesses, including support businesses. Given the lack of opportunity 
for fishermen to harvest salmon in 2008, the Council and NMFS 
recognized that there might be an increased economic incentive to 
harvest West Coast groundfish stocks. Because of this, the Council and 
NMFS took actions to reduce cumulative trip limits for some species in 
open access fisheries as a conservation measure to ensure that specific 
OYs were not exceeded (73 FR 21057, April 18, 2008). While the salmon 
measures for 2009 have not yet been determined, salmon seasons off 
California and Oregon may be similarly constrained in 2009.
    The DEIS provides a rationale for the preferred alternative. 
Setting harvest specifications and associated management measures is 
largely driven by the legal requirement to rebuild overfished species. 
Because of the resulting constraints that this imposes on fisheries and 
the fact that harvest of other stocks is constrained by the 
restrictions on overfished stocks, the risk that other stocks will be 
subjected to overfishing is minimal. For overfished stocks, the basic 
approach that guides the adoption of a rebuilding strategy comes from 
the MSA, as explained above.
    Table 7-57c in the FEIS shows estimated income impacts under the 
different management measure alternatives by commercial and tribal 
fishery including non-groundfish fisheries. Income impacts are a 
measure of total harvesting, processing, and support activities 
connected with Council-managed commercial harvests and recreational 
angler trip expenditures. The Council-preferred alternative shows a $22 
million increase in commercial personal income impacts compared to No 
Action. This is about a 3-percent increase in the total west coast 
personal income generated landings of groundfish and non-groundfish 
over the status quo. In terms of ``groundfish only'' impacts, income 
generated by the directed groundfish fisheries is about $19 million for 
about a 12 percent increase over the status quo. These personal income 
impacts are primarily based on the ex-vessel revenues projected for 
each of the alternatives which in turn are based on projected OYs. 
These projections are discussed in the RIR/IRFA associated with this 
action (Chapter 10 of the DEIS and FEIS) and Chapter 7 of the DEIS and 
FEIS. The

[[Page 9880]]

analysis provides projections that compare various alternatives 
considered including: 2007, No-Action (status quo regulations), and 
Council's preferred (regulations associated with this final rule). For 
the tribal and non-tribal commercial fleets, the Council's preferred 
Alternative leads to $104 million in projected ex-vessel revenues. This 
is $13 million greater than the No-Action Alternative projection-$91 
million and $20 million greater than those earned in 2007. These 
increases are from the increase in the sablefish OY and the use of the 
2008 whiting OY for projecting the 2009 and 2010 whiting OYs. In 2007, 
the commercial and tribal fleets harvested 5,200 mt of the 5,900 mt 
sablefish OY and received about $21 million in ex-vessel revenues. The 
proposed 2009-10 sablefish OYs are about 8,400 mt each--a 46 percent 
increase. In 2007, whiting vessels harvested about 86 percent of the 
243,000 mt OY, earning about $39 million in ex-vessel revenues. The 
2008 OY is 269,000 mt--an 11 percent increase.
    The Council's analysis provides impacts by gear group or fishery. 
(The Council's analysis also provides impacts by fishing communities-
showing estimates by 18 community/port groups which encompass about 63 
individual ports. This analysis is not presented here.) Under these 
proposed regulations, the projected commercial ex-vessel revenues for 
the non-tribal directed groundfish groups are about $90 million yearly. 
These figures represent slight increases from the No-Action (status 
quo) alternative. Forecast revenues for the limited entry non-whiting 
trawl fleet are higher than those forecast under previous years' (2007-
2008) management regime. The prime reason for this increase is the 
increase in the sablefish OY as opposed to changes in the rebuilding 
species OYs. However, the proposed area-based management controls for 
this fishery are likely to be more limiting than those developed for 
the 2007-2008 fisheries. These changes will lead to a decrease in 
fishable area and a potential increase in the cost of fishing because 
vessels traveling to and fishing at deeper depths will need more fuel. 
Fixed gear sablefish harvesters will produce more revenue than earned 
in the 2007-08 period because of the higher sablefish OY. However, 
similar to the situation for limited entry trawlers, area management 
will be more restrictive and cause harvesting costs to rise. The 
nearshore groundfish fishery will be able to reach ex-vessel revenues 
that equal the status quo but also will face increased area limits. 
Under the proposed rules, tribal groundfish fisheries should produce 
the same amount of ex-vessel revenues and personal income as under the 
No-Action Alternative. The projected revenues earned by limited entry 
whiting fishery (which includes the catcher-processor fleet) are 
similar to those projected for the previous biennial period.
    However, the potential amount of ex-vessel revenue and personal 
income will chiefly depend on the 2009 Pacific whiting assessment, 
adopted yearly by the Council during the March meeting. The Council's 
preferred alternative assumes that the 298,272 mt of whiting will be 
harvested in 2009. In 2007, 86 percent of the 2007 243,000 mt OY was 
harvested and the analysis forecasted that 60 percent of the 2008 OY of 
269,000 mt would be harvested. Most recent estimates of the 2008 
fishery indicate that 92 percent of 2008 OY was harvested. In January 
2009, whiting stock assessment scientists have started developing the 
Pacific whiting assessment. Early indications are that the OY for 
Pacific whiting will not increase but decrease from 2009 levels. 
Consequently the Council projections of $22 million increase in 
personal income may actually be closer to $14 million if actual 2008 
final whiting harvests and 2009 OYs are applied based on Tables 7-57c 
of the FEIS.
    For the coastwide recreational fishery, the projected number of 
charterboat and private angler trips associated with this rule is 
higher under the preferred alternative compared to the No Action 
alternative and are less than in 2007 (See FEIS Tables 7-65 a, b, and 
c). Under the No Action Alternative, 1.2 million angler trips are 
projected. These trips would lead to an estimated $114 million in 
angler expenditures and $90 million in personal income (profits, wages, 
and other income that result from angler expenditures and remain in 
fishing communities). Under the Council-preferred Alternative, anglers 
will take an estimated 1.27 million trips and spend $118 million and 
yield $93 million in personal income. This is an increase of 3 percent 
compared to No Action alternative but lower than the 2007 levels of 
expenditure ($122 million) and personal income ($96 million). As 
groundfish are caught in targeted bottomfish trips and in targeted 
trips for halibut, salmon, tuna and other species, these estimates are 
projections for the total west coast recreational fishery. For 
groundfish-targeted trips only, the No Action Alternative leads to $48 
million in personal income. This is slightly down from 2007 levels of 
$51 million. Charterboats are considered small businesses. Under these 
proposed regulations, coastwide, the projected annual number of 
charterboat trips for all species is 399,000 trips. This is a decrease 
from 2007 levels of 414,000 trips and a slight increase from the No-
Action level of 392,000 trips. The impacts to the recreational sectors 
are driven by the OYs for yelloweye rockfish, canary rockfish, and to a 
lesser extent bocaccio and widow rockfish. The 2009-10 yelloweye 
rockfish OYs under the final Council preferred alternative represent a 
decrease of 3 mt from No Action levels. Management measures designed so 
as not to exceed the yelloweye rockfish OY also keep recreational catch 
within harvest guidelines for other potentially constraining species, 
such as canary rockfish. The proposed yelloweye bycatch reduction 
measures include restricting recreational fisheries to depths shallower 
than 20 fm in certain areas and/or during certain months and expanding 
areas to protect yelloweye rockfish.
    The Council-preferred alternative, in comparison to No Action, 
continues current rebuilding strategies for most overfished species 
with an increase in positive short-term socioeconomic impacts (assuming 
that the whiting fishery is prosecuted at levels similar to past 
years). As discussed above, and in the FEIS and related documents, 
lower OYs and associated management measures could result in shorter 
rebuilding periods for overfished species; however, the Council and 
NMFS also considered the needs of fishing communities along the entire 
West Coast in selecting its preferred alternative. The cumulative 
decline in revenue and income over the past decade has been significant 
and the small increases in projected revenue are justified. Additional 
reductions in revenue due to additional management restrictions would 
likely have significant short-term socioeconomic impacts. The rationale 
for adopting the preferred alternative is therefore consistent with the 
comprehensive requirements of the MSA at Sec.  304(e)(4)(A).
    Comment 15: The Four Organizations urged NMFS to implement 
management changes recommended by scientists to address the challenges 
and uncertainties that climate change and ocean acidification bring.
    Response: NMFS agrees there are great challenges and uncertainties 
associated with climate change and ocean acidification. Potential long 
term changes to marine ecosystems brought about by climate change and 
ocean acidification were considered in our management decision. As 
stated in our

[[Page 9881]]

response to comments in the FEIS, relevant observations on climate 
change are included in Chapter 5 of the Supplemental Comprehensive 
Analysis to the Federal Columbia River Power System Biological Opinion, 
2008 (https://www.nwr.noaa.gov/Salmon-Hydropower/Columbia-Snake-Basin/
Final-BOs.cfm). Inter-annual climatic variations (e.g. El Nino and La 
Nina), longer term cycles in ocean conditions (e.g. Pacific Decadal 
Oscillation), and ongoing global climate change have implications for 
marine habitats and groundfish species. These phenomena are an area of 
substantial scientific investigation. Scientific evidence strongly 
suggests that global climate change is already altering marine 
ecosystems from the tropics to polar seas. Physical changes associated 
with warming include increases in ocean temperature, increased 
stratification of the water column, and changes in the intensity and 
timing of coastal upwelling. These changes will alter primary and 
secondary productivity, and the structure of marine communities. NMFS 
believes that the west coast groundfish fishery is conservatively 
managed and we will continue to pursue the necessary research and 
adaptive management strategies to best address a changing marine 
ecosystem.
    Comment 16: The Four Organizations urged NMFS to analyze an option 
to increase intersector allocation to the fixed gear fleet by 25-30 
percent, as fixed gear generally causes orders of magnitude less 
bycatch and habitat destruction than trawl gear.
    Response: Intersector allocations are being considered in a 
separate ongoing process under FMP Amendment 21. We anticipate an 
alternative will be analyzed that will address an increase in 
allocation to fixed gear. Consideration of habitat impacts associated 
with different gear types and effects of long term sector allocations 
on west coast fishing communities will be considered in that process.
    Comment 17: The Four Organizations urged NMFS to reduce the cowcod 
OY to 3 mt to reflect the new, more pessimistic understanding of the 
species's unfished biomass. The Four Organizations assert that NMFS has 
made no adjustments in rebuilding specifications in order to be 
precautionary or responsive to the change in unfished biomass from 18 
percent to 4.6 percent.
    Response: The 2007 cowcod assessment incorporated a suite of 
corrections and changes to the previous assessment (2005), resulting in 
revised estimates of several management reference points. The change in 
perception of stock status is reflected in the results of the revised 
rebuilding analysis. Due to technical flaws in the 2005 assessment, a 
direct comparison of revised rebuilding parameters to status quo values 
is inappropriate and misleading.
    The revised rebuilding analysis identifies a median rebuilding year 
of 2069 with a 3 mt OY and a median rebuilding year of 2072 with a 4 mt 
OY. The median time to rebuild the stock if all fishing-related 
mortality were eliminated beginning in 2009 (TF=0) is 2061.
    Cowcod is the most constraining species in the southern trawl 
fishery, and in past years catch of cowcod in this fishery has been 
highly variable and unpredictable. While the average cowcod mortality 
in the trawl fishery is only 1.3 mt, catches have been as high as 2.1 
mt in recent years. When combined with the total mortality from all 
sectors of the fishery, this variation would not be accommodated by a 3 
mt OY. Therefore, additional fishery restrictions would be necessary if 
a 3 mt cowcod OY were adopted. Additional restrictions would not be 
necessary with a 4 mt OY, and the median time to rebuild is only 
extended by three years.
    Comment 18: The Four Organizations urged NMFS to analyze the effect 
that the trawl individual quota (TIQ) program is likely to have on 
communities identified as vulnerable in the specifications process to 
determine if a higher OY (and thus a longer rebuilding period) will 
actually preserve these communities.
    Response: The TIQ program is being considered in a separate ongoing 
process under FMP Amendment 22. We anticipate that alternatives will be 
analyzed to address the effects that the program will have on 
communities, including those identified as vulnerable in previous 
analyses. Such considerations as rebuilding overfished species and 
effects of overfished species allocations on west coast fishing 
communities will be considered in that process. One of the purposes of 
the Adaptive Management portion of the TIQ program is for the 
deployment and use of quotas specifically set aside to mitigate for 
unforeseen impacts upon communities.
    Comment 19: The Four Organizations described the need to develop 
Annual Catch Limits (ACLs) and encouraged NMFS to begin integrating 
these requirements into the harvest specifications for 2009-2010.
    Response: NMFS appreciates the perspectives provided by the Four 
Organizations on the ACL rule. However, the ACL rule and NMFS 
associated actions in response are not part of the final action on 
harvest specifications and management measures for 2009-2010; ACLs will 
be addressed by the Council and NMFS during the next several years.
    Comment 20: The Four Organizations assert, using information on the 
groundfish trawl fishery, that the groundfish fishery has stabilized as 
evidenced by increasing average revenues per vessel in comparison to 
1995 and 1996, and in particular since implementation of the 2002 
Buyback Program.
    Response: It is not clear that the groundfish trawl fishery has 
stabilized. While it is true that the Pacific Coast Groundfish LE Trawl 
Fishery Rationalization Decision Document (October 2008) at page 140 
stated that ``Exvessel revenues in the fishery peaked in the mid 1990s 
at over $60 million. Following the passage of the Sustainable Fisheries 
Act (1996) and the listing of several species as overfished, harvests 
became increasingly restricted and landings and revenues declined 
steadily until 2002. Since 2002 exvessel revenues have stabilized at 
around $23-27 million per year.'' It should be noted that the per-
vessel trend analysis that the Four Organizations refer to did not 
account for inflation nor for changes in the costs of fishing, 
particularly fuel prices which until recently have increased 
tremendously and buyback loan fees which have been incurred by the 
industry. Since September 2005, there has been the imposition of a 
federal 5 percent ex-vessel revenue fee on ground fish trawl landings 
for purposes of repaying the $36 million loan associated with the 2002 
trawl buyback program. Depending on the state of landing, similar or 
lesser fees are associated with landings of crab and shrimp. According 
to Table 7-46 in the FEIS, Oregon June fuel prices increased from $0.93 
per gallon in 1999 to over $2.20 a gallon in 2005 with most of the 
increase occurring in 2004 and 2005 as 2003 prices were about $1.12 per 
gallon. Recent estimates by the Pacific States Marine Fisheries 
Commission show that prices continued to increase through June of 2008 
to about $4.20 per gallon and have since declined to $2.80 per gallon. 
(Note that California and Washington fuel prices tend be higher than 
Oregon prices.) The Four Organizations cite the conclusion that ``the 
fleet reduction and cost efficiency model shows that the consolidation 
that may occur could diminish the number of vessels by 50 to 66 percent 
or to a non-whiting fleet size that is somewhere on the order of 40-60 
vessels.'' This

[[Page 9882]]

model was based on analysis of the 2004 trawl fishery. After taking 
into account landings of flatfish, crab, shrimp, whiting and other 
groundfish, one of the conclusions was that groundfish vessels either 
suffered a loss of about $2.5 million in 2004 or broke even in 2004 
depending on the assumption of the annual rate of return to vessel 
capital investment.
    Three additional perspectives should be noted. First is that the 
Four Organizations focused this comment on the trawl sector whereas the 
Council took into account all sectors of the fishery, including the 
non-trawl sector and the recreational sector. Second, although reducing 
capacity leads to fewer vessels that have higher trip limits and 
generally improved economics of the trawl fleet, more important 
indicators for fishing communities are the total flow of fish and 
revenue to the community and the resulting amount of income that is 
generated. Finally, the third perspective is that since Council 
adoption of the 2009-10 OYs in June of 2008, the national economy has 
moved into a serious recession. It is a reasonable expectation that the 
impacts of a declining national economy include reduced demand for 
seafood and therefore lower prices and revenues to the commercial 
industry and reduced participation in the recreational fishery.

Santa Monica Seafood

    Comment 21: Santa Monica Seafood urges NMFS to reconsider the 
proposed catch levels and adopt more precautionary and risk averse 
catch levels for canary, darkblotched, and yelloweye rockfish. They 
also urged NMFS to account for uncertainty and to rebuild overfished 
species populations as quickly as possible.
    Response: As described in the responses above, the rebuilding 
approach takes a precautionary approach and is designed to rebuild the 
overfished stocks consistent with legal requirements.

Changes From the Proposed Rule

    The three states submitted comments on the proposed rule, and those 
comments are addressed in the response to comments section as well as 
this section due to changes from the proposed rule as a result of those 
comments.
    The proposed rule included revisions to the California recreational 
management measures, and the regulations at Sec.  660.384 (c)(3). The 
California Department of Fish and Game(CDFG) provided comments 
regarding this section, pointing out several minor errors, 
inconsistencies between current regulations that were not proposed to 
be revised, and inconsistencies with the Council recommendations.
    In this final rule NMFS is correcting the latitudinal coordinate 
for Point Arena in Sec.  660.384 (c)(3)(i)(A)(2) and (3) from 
38[deg]57[min] N. lat. to 38[deg]57.50[min] N. lat. so that it is 
consistent with the definition of ``Point Arena, CA'' as defined in the 
list of commonly used geographic coordinates listed at Sec.  660.302.
    In Sec.  660.384 (c)(3)(i)(A)(2), an editing error introduced 
language that referred to the closed areas around the Farallon Islands 
and Cordell Banks. These groundfish conservation areas, as defined in 
Sec.  660.390, are not in the North-Central North of Point Arena 
Region. Therefore, the references to the Farallon Islands and Cordell 
Banks were removed from this paragraph.
    In Sec.  660.384 (c)(3)(ii)(B), NMFS proposed recreational 
management measures in the California recreational rockfish, cabezon, 
and greenling (RCG complex) fishery. These proposed regulations 
included a description of measures for the area between 42[deg] and 
40[deg]10' N. lat. and the ar