Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures, 20620-20629 [E9-10306]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Rules and Regulations]
[Pages 20620-20629]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10306]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 090428799-9802-01]
RIN 0648-AX24


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

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

ACTION: Final rule; inseason adjustments to groundfish management 
measures; Pacific whiting reapportionment; correction; request for 
comments.

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SUMMARY: This final rule establishes the 2009 fishery specifications 
for Pacific whiting in the U.S. exclusive economic zone (EEZ) and state 
waters off the coasts of Washington, Oregon, and California, as 
authorized by the Pacific Coast Groundfish Fishery Management Plan 
(FMP). These specifications include the level of the acceptable 
biological catch (ABC), optimum yield (OY), and allocations for the 
non-tribal commercial sectors. This final rule also announces the 
reapportionment of Pacific whiting allocation from the tribal sector to 
the non-tribal sectors; adjusts bycatch limits for the non-tribal 
commercial sectors of the Pacific whiting fishery; and corrects the 
Pacific whiting primary season dates.

DATES: Effective April 30, 2009. Comments on the revisions to bycatch 
limits must be received no later than 5 p.m., local time on May 20, 
2009.

ADDRESSES: You may submit comments, identified by RIN 0648 AX24 by any 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov.
     Fax: 206-526-6736, Attn: Becky Renko.
     Mail: Barry A. Thom, Acting Regional Administrator, 
Northwest Region, NMFS, Attn: Becky Renko, 7600 Sand Point Way, NE., 
Seattle, WA 98115-0070.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov <https://www.regulations.gov/ without change. All personal 
identifying information (for example, name, address, etc.)

[[Page 20621]]

voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information, or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of the final environmental impact statement (FEIS) for this 
action are available from Donald McIsaac, Executive Director, Pacific 
Fishery Management Council (Council), 7700 NE., Ambassador Place, 
Portland, OR 97220, phone: 503-820-2280. Copies of additional reports 
referred to in this document may also be obtained from the Council. 
Copies of the Record of Decision (ROD), final regulatory flexibility 
analysis (FRFA), and the Small Entity Compliance Guide are available 
from Barry A. Thom, Acting Administrator, Northwest Region (Regional 
Administrator), NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS) 
206-526-6110.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule is accessible via the Internet at the Office of the 
Federal Register Web site at https://www.gpoaccess.gov/fr/. 
Background information and documents are available at the NMFS 
Northwest Region Web site at https://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm.

Background

    A proposed rulemaking to implement the 2009-2010 specifications and 
management measures for the Pacific Coast groundfish fishery was 
published on December 31, 2008 (73 FR 80516). A final rule was 
published on March 6, 2009 (74 FR 9874) which codified the 
specifications and management measures in the CFR (50 CFR part 660, 
subpart G), except for the Pacific Whiting harvest specifications. This 
final rule establishes the 2009 harvest specifications for Pacific 
whiting. The rules announced a range of Pacific whiting harvest 
specifications that were being considered for 2009 and 2010, and also 
announced the intent to adopt final specifications after the Council's 
March 2009 and 2010 meetings. As explained below, the information 
necessary for the updated stock assessment is not available until 
January or February, which necessarily delays the preparation of the 
stock assessment until almost February. Delaying the adoption of 
whiting specifications until March is consistent with the U.S.-Canada 
agreement for Pacific whiting.
    In November 2003, the U.S. and Canada signed an agreement regarding 
the conservation, research, and catch sharing of Pacific whiting. At 
this time, both countries are taking steps to fully implement the 
agreement. Until this occurs, the negotiators recommended that each 
country apply the agreed upon provisions to their respective fisheries. 
In addition to the time frame in which stock assessments are to be 
considered and harvest specifications established, the U.S.-Canada 
agreement specifies how the catch is to be shared between the two 
countries. The Pacific whiting catch sharing arrangement provides 73.88 
percent of the total catch OY to the U.S. fisheries and 26.12 percent 
to the Canadian fisheries.

Pacific Whiting Stock Status

    The joint U.S.-Canada Stock Assessment Review (STAR) panel met 
February 3-6, 2009, in Seattle, Washington to review a draft Stock 
Assessment of Pacific Hake (Pacific whiting) in U.S. and Canadian 
Waters in 2009. After careful consideration and review of the stock 
assessment model, the STAR panel recommended a final base model which 
was a particular configuration of the Stock Synthesis III model. The 
Stock Synthesis III model is an age-structured stock assessment model. 
Age-structured assessment models of various forms have been used to 
assess Pacific whiting since the early 1980s; these models use data on 
total fishery landings, fishery length and age compositions and survey 
abundance indices.
    The final base model used for the 2009 stock assessment built on 
the 2008 model but included new data and refined the modeling of aging 
imprecision. The primary differences between the 2008 and 2009 stock 
assessment models are that the 2009 assessment included more 
flexibility in modeling fishery selectivity, improves the manner in 
which aging errors are handled, and freely estimated the level of 
recruitment variability (recruitment is the biomass of fish that mature 
and enter the fishery each year). The following new data were 
incorporated into the 2009 stock assessment: historical length data 
from Santa Barbara, California (1963-1970); 2008 catches from the U.S. 
and Canada; and 2008 length and conditional age-at-length compositions 
from the U.S. and Canada. In combination, these model changes and 
additional data produced a large downward shift in the absolute scale 
of Pacific whiting biomass estimate.
    Imprecisely estimated stock assessment parameters are expected to 
change as new data are added or when changes are made to the model's 
structure. The 2009 stock assessment did not show an obvious 
retrospective pattern. The retrospective analysis was conducted by 
systematically removing the terminal years' (2008-2001) data, one after 
the other, for eight years. An obvious retrospective pattern is not a 
desirable characteristic and would indicate a pathological model 
misspecification.
    In general, Pacific whiting is a very productive species with 
highly variable recruitment and a relatively short life span when 
compared to most other groundfish species. The base model indicates 
that the Pacific whiting female spawning biomass declined rapidly after 
a peak in 1984. The decline continued until 2000 and was followed by a 
brief increase to a peak in 2003 as the large 1999 year class matured 
(fish spawned during a particular year are referred to as a year 
class). The stock biomass at the beginning of 2009 is estimated to be 
at 32 percent of the estimated unfished spawning biomass. The revised 
estimate of the 2008 spawning biomass is 51 percent lower than the 
estimate from the previous assessment, reflecting a downward revision 
in the estimated absolute scale of the Pacific whiting biomass. 
However, a revised estimate of the 2008 depletion level is 41 percent, 
which is slightly higher than the 38 percent estimated by the 2008 
assessment.
    The 1999 year class was estimated to be the largest in the last 25 
years and has supported fishery catches since 2002. Although the 1999 
year class is still available to the fishery, the stock assessment 
results indicate that the biomass continues to decline as the 1999 year 
class moves through the fishery. Estimates of the stock status indicate 
that the Pacific whiting stock is at the lowest spawning biomass ever 
observed. Without another strong year class the biomass is projected to 
further decline. The 2005 year class is believed to be reasonably 
strong. However, the strength of the 2005 recruitment is still very 
uncertain, because the last survey was in 2007, and also because fewer 
than half of the fish younger than 4 are generally selected by either 
the survey or the fishery. Better information on the strength of the 
2005 year class, as well as the 2006 year class, will be available

[[Page 20622]]

following survey work scheduled for 2009.
    At the Council's March 2009 meeting the Scientific and Statistical 
Committee (SSC) reviewed the assessments and the STAR Panel report, and 
endorsed the use of the stock synthesis III model as the best available 
scientific data and recommended the use of the stock assessment in 
selecting harvest specifications. The SSC also recommended using the 
decision table based on Markov Chain Monte Carlo (MCMC--a computing 
technique used for sampling probabilistically from the possible 
parameterizations of the model, thus representing the uncertainty in 
the present state) integration of the posterior distribution for 
management purposes. The SSC made this recommendation because the MCMC 
decision table describes the Pacific whiting biomass depletion levels 
in probabilistic terms rather than as point estimates, and thus 
provides improved information on the uncertainty and risk (of both 
overfishing and of being overfished in any subsequent year) associated 
with each possible management action. The MCMC decision table is based 
on the distribution of possible current states of nature for the 
following characteristics of stock status--the female spawning biomass, 
the state of depletion, and the relative state of overfishing (relative 
spawning potential ratio)--generated from the MCMC modeling. Within the 
MCMC decision table, probabilities ranging from 5 percent to 95 percent 
were presented. The 5th percentile column identifies values where there 
is only a 5-percent likelihood of the true value being lower. Values in 
the 50th percentile (middle) columns are the best risk neutral 
characterization of current states, because there is an equal chance 
that the true values are either higher or lower.

ABC/OY Recommendations

    Following the review of the new stock assessment results and 
consideration of the SSC comments and public comments, the Council 
recommended harvest specifications for 2009. The final ABC and OY 
values recommended by the Council for 2009 are based on a new stock 
assessment, and are consistent with the U.S.-Canada agreement and the 
impacts considered in the FEIS for the 2009 and 2010 management 
measures. The following use of the term ABC is not in the same sense as 
in Magnuson-Stevens Act's National Standard One Guidelines. It is used 
as defined in the Pacific Coast Groundfish FMP. The FMP defines the ABC 
as the Maximum Sustainable Yield (the largest average catch that can be 
taken continuously from a stock under average environmental conditions) 
harvest level associated with the current stock abundance.
    Two U.S.-Canada coastwide ABC values were considered by the 
Council: An ABC of 291,965 metric tons (mt) based on 
F40 harvest rate; and an ABC of 253,582 mt based on 
an estimated catch level at the center of the distribution (the mean 
value or that which produces a 50 percent probability of overfishing). 
The SSC indicated that with the F40 harvest rate, 
the whiting biomass would be expected to fluctuate at a level below 
B40 (the biomass level set out in the FMP as that at 
which a stock is estimated to be able to maintain its maximum 
sustainable yield over time). The value that the SSC identified as 
being the better estimate of ABC was 253,582 mt because the amount 
corresponds to the 50th percentile of the MCMC distribution. Following 
public testimony and Council deliberation, the Council recommended 
adoption of a U.S.-Canada coastwide ABC of 253,582 mt, and the U.S. 
share of the ABC is 187,346 mt (73.88 percent of the coastwide ABC).
    The range of U.S. OYs analyzed in the FEIS for 2009 and 2010 
specifications and management measures included: a low OY of 134,773 mt 
and a high OY of 404,318 mt (A U.S.-Canada OY range of 182,421 mt-
547,263 mt) This range represents 50 percent to 150 percent of the 2008 
U.S. OY of 269,545. These broad ranges in Pacific whiting harvest 
levels were analyzed in order to assess the potential range of the 
effects of the Pacific whiting fishery on incidentally-caught 
overfished species and the economic effects to coastal communities.
    The range of U.S.-Canada coastwide OY values considered by the 
Council at its March meeting included: A high OY of 365,784 mt which is 
a constant harvest option based on the status quo harvest in 2008; an 
OY of 253,582 mt approximates to a 40-10 harvest policy with a higher 
ABC (The 40-10 harvest policy is used to set OYs for species that are 
below B40 and not managed under overfished species 
rebuilding plans); a constant catch OY for 2009 of 215,000 mt which is 
an amount that has a greater than 50 percent probability that the stock 
depletion will fall below the overfished level by the beginning of 
2010; a constant catch OY for 2009 of 184,000 mt which is the maximum 
harvest amount that maintains a greater than 50 percent probability of 
the stock remaining above B25 (the overfished 
threshold) by the beginning of 2010; an OY of 137,526 mt based on the 
results of an alternative stock assessment model and the application of 
the 40-10 harvest policy; and 100,000 mt, the maximum constant catch 
amount that keeps the female spawning biomass from further decline over 
the next two years.
    The high OY of 365,784 mt was not a viable alternative because it 
is expected to result in a greater than 50 percent probability of 
overfishing in 2009 and the stock being overfished by 2010. Under the 
Magnuson-Stevens Act National Standards, the choice of OY and the 
conservation and management measures proposed to achieve it must 
prevent overfishing. An OY of 253,582 mt is equal to the recommended 
ABC and is without the precautionary adjustments that are made to the 
OYs when a stock's biomass is less than B40. 
Although an OY of 253,582 mt approximates the 40-10 harvest policy 
value for the maximum likelihood model, which had a higher ABC, the SSC 
expressed concern that given the variability in the Pacific whiting 
recruitment, the biomass could be expected to fluctuate below the 
overfished threshold (B25). With an OY higher than 
184,000 mt there would be a greater than 50 percent probability of the 
stock being overfished in 2010. The 2009 assessment indicates that with 
a U.S.-Canada OY of 184,000 mt or less there is a greater than 50 
percent probability that the Pacific whiting biomass will stay above 
the overfished threshold throughout 2009.
    Following deliberation and public testimony, the Council 
recommended adopting a U.S.-Canada coastwide OY of 184,000 mt with a 
corresponding U.S. OY of 135,939 mt for 2009. In making the OY 
recommendation, the Council expressed concern about the risk of the 
stock falling into the overfished category. The Council recommended 
this level so as to prevent overfishing, and to provide greater than a 
50-percent probability that the stock will not be overfished at the 
beginning of 2010. The Council recommended this level with the 
understanding that through surveys conducted in 2009, there would be a 
much better understanding of the relative strength of the 2005 year 
class, as well as the 2006 year class, leading to better indicators of 
the overall abundance of Pacific whiting. The harvest will be adjusted 
next year, based on new information, taking into account the status of 
the stock at that time. Given the variation in the stock assessment 
results between years, the Council felt that this OY value for 2009 was 
a conservative approach. In reaching a conclusion the Council also 
considered how reductions in OY greater than this level would 
negatively impact fishers and processors, due to

[[Page 20623]]

the fact that Pacific whiting is the most abundant stock in the Pacific 
coast groundfish fishery and generates the highest value.

Allocations

    In 1994, the United States formally recognized that the four 
Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and 
Quinault) have treaty rights to fish for groundfish in the Pacific 
Ocean. In general terms, the quantification of those rights is 50 
percent of the harvestable surplus of groundfish that pass through the 
tribes' usual and accustomed ocean fishing areas (described at 50 CFR 
660.324).
    The Pacific Coast Indian treaty fishing rights, described at 50 CFR 
660.385, allow for the allocation of fish to the tribes through the 
specification and management measures process. A tribal allocation 
(set-aside) is subtracted from the species OY before limited entry and 
open access allocations are derived. The tribal whiting fishery is a 
separate fishery, and is not governed by the limited entry or open 
access regulations or allocations.
    Since 1996, only the Makah Tribe has prosecuted the tribal fishery 
for Pacific whiting. However, for the 2009-2010 harvest specification 
cycle, three of the four coastal tribes indicated their intent to 
participate in the fishery at some point during the two-year period. 
The Quinault Nation indicated their intent to start fishing in 2010, 
and both the Quileute and Makah Tribes indicated they intended to fish 
in both 2009 and 2010.
    A Pacific whiting tribal allocation of 50,000 mt was adopted for 
2009 in the 2009-2010 specifications and management measures published 
on March 6, 2009 (74 FR 9874) and set forth in regulation at 50 CFR 
660.385. The set aside of 50,000 mt was based on the separate requests 
of the Quileute for up to 8,000 mt in 2009 and the Makah for up to 
42,000 mt in 2009.
    The 2009 commercial OY (non-tribal) for Pacific whiting is 81,939 
mt. This is calculated by deducting the 50,000 mt tribal allocation and 
4,000 mt for research catch and bycatch in non-groundfish fisheries 
from the 135,939 mt total catch OY. Regulations at 50 CFR 660.323(a)(2) 
divide the commercial OY into separate allocations for the non-tribal 
catcher/processor, mothership, and shore-based sectors of the Pacific 
whiting fishery.
    The catcher/processor sector is comprised of vessels that harvest 
and process Pacific whiting. The mothership sector is comprised of 
motherships and catcher vessels that harvest Pacific whiting for 
delivery to motherships. Motherships are vessels that process, but do 
not harvest, Pacific whiting. The shoreside sector is comprised of 
vessels that harvest Pacific whiting for delivery to shoreside 
processors. Each sector receives a portion of the commercial OY, with 
the catcher/processors getting 34 percent (27,859 mt), motherships 
getting 24 percent (19,665 mt), and the shore-based sector getting 42 
percent (34,414 mt).

Reapportionment

    Regulations at 50 CFR 660.323(c) provide that if the Regional 
Administrator determines that a portion of the tribal set aside or 
another sector's allocation will not be used during the year, the 
Regional Administrator can reapportion that Pacific whiting to other 
sectors in proportion to their initial allocations. Given the low OY 
recommended by the Council, at the March PFMC meeting, the Makah Tribal 
representatives stated their intent to harvest only 23,789 mt of their 
42,000 mt set aside and asked that the remaining 18,211 mt be 
reapportioned to the non-tribal sectors of the fishery. This notice 
announces the reapportionment of 18,211 mt of the tribal set aside to 
the non-tribal sectors of the Pacific whiting fishery. The resulting 
Pacific whiting allocations by sector are: catcher/processor 34,051 mt, 
mothership 24,034 mt, and shore-based 42,063 mt.

Bycatch Limit Adjustments

    Bycatch limits have been used to restrict the catch of overfished 
species, particularly canary, darkblotched and widow rockfish, in the 
non-tribal Pacific whiting fisheries. With bycatch limits, the industry 
has the opportunity to harvest a larger Pacific whiting OY, providing 
the incidental catch of overfished species does not exceed the adopted 
bycatch limits. In recent years, bycatch limits have been used for the 
most constraining overfished species; darkblotched, canary and widow 
rockfish. Since 2005, a single bycatch limit for each species has been 
used for all commercial sectors of the fishery. However, for the 2009 
fishery, concern that bycatch in one sector would result in the closure 
of a different sector of the fishery led to the implementation of 
sector-specific bycatch limits rather than a single bycatch limit for 
all commercial sectors (74 FR 9874; March 6, 2009).
    If a sector-specific bycatch limit is reached or is projected to be 
reached, the Pacific whiting fishery for that sector will be closed, 
regardless of whether the Pacific whiting allocation has been achieved. 
When a sector is closed because a bycatch limit has been reached or was 
projected to be reached, unused amounts of the other bycatch limit 
species will be rolled-over to the remaining sectors of the non-tribal 
Pacific whiting fishery. If a sector reaches its whiting allocation, 
unused amounts of bycatch limit species will be shifted to those 
sectors of the non-tribal Pacific whiting fishery that remain open. 
Sector-specific bycatch limits are apportioned on the same percentages 
used to calculate the original sector whiting allocations.
    During the development of the 2009-2010 specifications and 
management measures, the fleetwide widow rockfish impacts were 
estimated to be 450 mt. The best available data at the March Council 
meeting projected an increase in the catch of widow rockfish in the 
non-whiting groundfish fisheries over what was considered in the 2009-
2010 specifications and management measures. If no reductions were made 
in the widow rockfish bycatch limit, the projected catch of widow 
rockfish in all groundfish fisheries could exceed the 2009 OY of 522 
mt. Given the reductions in the Pacific whiting OY for 2009 and the 
projected increase in non-whiting groundfish fisheries, the Council 
recommended reducing the overall widow rockfish bycatch limit for the 
Pacific whiting fisheries to 250 mt. From the overall bycatch limit of 
250 mt the following sector-specific bycatch limits are being 
established for widow rockfish: the catcher/processors bycatch limit is 
reduced from 153.0 mt to 85.0 mt; the mothership bycatch limit is 
reduced from 108.0 mt to 60.0 mt; and the shore-based bycatch limit is 
reduced from 189.0 mt to 105.0 mt. The Council also considered revising 
the canary and darkblotched rockfish bycatch limits, at their March 
meeting, but found no reason to revise them before the start of the 
season.

Correction

    NMFS is correcting an error in the regulatory text at 50 CFR 
660.373 (b)(1)(ii), which is the section that announces the start dates 
for the primary whiting fishery. Because of an early closure of the 
fishery and subsequent reopening in 2008 due to the canary rockfish 
bycatch limit being reached, the regulatory text in this section was 
revised to include the start and end dates specifically for 2008 (73 FR 
60642, October 14, 2008). Inadvertently, the regulatory text was not 
changed back to eliminate the specific references to 2008, and to 
eliminate the closing dates. The correction reinstates the existing 
opening dates without closure dates.

[[Page 20624]]

This is consistent with the introductory text of the paragraph which 
describes a primary season fishery remaining open until the allocation 
or a bycatch limit is reached. Failure to make this change would leave 
the regulatory language outdated, confusing and internally 
inconsistent.

Classification

    The final Pacific whiting specifications and management measures 
for 2009 are issued under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), and the Pacific 
Whiting Act of 2006, and are in accordance with 50 CFR part 660, 
subpart G, the regulations implementing the FMP. The Administrator, 
Northwest Region, NMFS, has determined that the 2009-2010 groundfish 
harvest specifications and management measures, which this final rule 
implements a portion of, are consistent with the national standards of 
the Magnuson-Stevens Act and other applicable laws.
    For the following reasons, NMFS finds good cause, pursuant to 5 
U.S.C. 553(b)(B) to waive prior public notice and comment on the 2009 
Pacific whiting specifications. Also for these reasons, NMFS finds good 
cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 
553(d)(3), so that this final rule may become effective as soon as 
possible after the April 1, 2009, fishery start date.
    The FMP requires that fishery specifications be evaluated 
periodically using the best scientific information available. NMFS does 
a Pacific whiting stock assessment every year in which U.S. and 
Canadian scientists cooperate. The 2009 stock assessment for Pacific 
whiting was prepared in early 2009, which is the optimal time of year 
to conduct stock assessments for this species. New 2008 data used in 
this assessment that were not available until January, 2009 include: 
updated total catch, length and age data from the U.S. and Canadian 
fisheries, and biomass indices from the Joint US-Canadian acoustic/
midwater trawl surveys. Pacific whiting differs from other groundfish 
species in that it has a shorter life span and the population 
fluctuates more swiftly. Thus, it is important to use the most recent 
stock assessment when determining ABC and OY. Because of the timing of 
the data and then the assessment, the results are not available for use 
in developing the new ABC and OY until just before the Council's annual 
March meeting. For the actions to be implemented in this final rule, 
affording the time necessary for prior notice and opportunity for 
public comment would prevent the agency from managing the Pacific 
whiting and related fisheries using the best available science. 
Delaying this action would be contrary to the public interest and 
NMFS's obligations under the Magnuson-Stevens Act because it would 
allow the fishery to proceed under the 2008 OY, which is approximately 
50 percent higher than the 2009 OY. This could allow a sector to exceed 
its 2009 allocation, or at a minimum cause disruption of the fishery by 
lowering the OY part way through the season. Revisions to the season 
dates are necessary for regulatory consistency and to avoid confusion. 
Delaying action for public notice and comment is impracticable because 
without this correction the public will not have clear guidance 
regarding the timing and duration of the fishery. Under the standard 
regulations, the fishery opens in different areas on April 1, April 15, 
May 15 and June 15. Causing delay in a season because of confusion 
would prevent fishermen from accessing the whiting as it becomes 
available off their ports as the Pacific whiting migrate northward. 
Because notice and comment are not required, no RFA analysis is 
required and none was prepared.
    The proposed rulemaking to implement the 2009 specifications and 
management measures, published on December 31, 2008 (73 FR 80516), 
addressed the delay in adopting the Pacific whiting ABC and harvest 
specifications. NMFS requested public comment on the proposed rule 
through January 30, 2009. The final rule was published on March 6, 2009 
(74 FR 9874) and again explained that the final specifications within 
the proposed range would be recommended at the Council's March 2009 and 
2010 meetings and implemented in the Federal Register as a final rule 
shortly thereafter.
    The environmental impacts associated with the Pacific whiting 
harvest levels being adopted by this action are consistent with the 
impacts in the final environmental impact statement for the 2009-2010 
specification and management measures. In approving the 2009-2010 
groundfish harvest specifications and management measures, NMFS issued 
a Record of Decision (ROD). The ROD was signed on February 23, 2009. 
Copies of the FEIS and the ROD are available from the Council (see 
ADDRESSES).
    An Initial Regulatory Flexibility Analysis (IRFA) and FRFA were 
prepared for the 2009-2010 harvest specifications and management 
measures, which included the regulatory impacts of this action on small 
entities. The IRFA was summarized in the proposed rule published on 
December 31, 2008 (73 FR 80516). A summary of the FRFA analysis, which 
covers the entire groundfish regulatory scheme of which this is a part, 
was published in the final rule on March 6, 2009 (74 FR 9874). A 
summary of the FRFA is contained below. The need for and objectives of 
this final rule are contained in the SUMMARY and in the Background 
section under SUPPLEMENTARY INFORMATION.
    The final 2009-2010 specifications and management measures were 
intended to allow West Coast commercial and recreational fisheries 
participants to fish the harvestable surplus of more abundant stocks 
while also ensuring that those fisheries do not exceed the allowable 
catch levels intended to rebuild and protect overfished stocks. The 
specifications (ABCs and OYS) follow the guidance of the Magnuson-
Stevens Act, the national standard guidelines, and the FMP for 
protecting and conserving fish stocks. Fishery management measures 
include trip and bag limits, size limits, time/area closures, gear 
restrictions, and other measures intended to allow year-round West 
Coast groundfish landings without compromising overfished species 
rebuilding measures.
    In recent years the number of participants engaged in the Pacific 
whiting fishery has varied with changes in the whiting OY and economic 
conditions. Pacific whiting shoreside vessels (26 to 29), mothership 
processors (4 to 6), mothership catcher vessels (11-20), catcher/
processors (5 to 9), Pacific whiting shoreside first receivers (8-16), 
and four tribal trawlers are the major units of this fishery.
    In 2008, these participants harvested about 248,000 tons of whiting 
worth about $63 million in ex-vessel value based on shoreside ex-vessel 
prices of $254 per ton--the highest ex-vessel revenues and prices on 
record. In comparison, the 2007 fishery harvested about 224,000 tons 
worth $36 million at an average ex-vessel price of about $160 per ton. 
Over the years 2003-2007, estimated Pacific whiting ex-vessel values 
averaged about $29 million.
    Seafood processors convert whiting into surimi, fillets, fish meal, 
and headed gutted products. Besides recent high OY levels, ex-vessel 
revenues have been increasing because of increased prices for headed 
and gutted whiting. From 2004-2007, wholesale prices for headed and 
gutted whiting product increased from about $1,200 per ton to $1,600 
per ton. In 2008, wholesale

[[Page 20625]]

prices averaged $1,980 per ton according to U.S. Export Trade 
statistics. Fuel prices, a major expense for whiting vessels, also 
increased dramatically. For example, at the start of the primary 
fishery in June 2008 fuel prices were about $4.30 per gallon compared 
to June 2007 levels of $2.70 per gallon.
    Being able to harvest the entire Pacific whiting OY will depend on 
how well the industry stays within the overfished species bycatch 
limits. For example, in 2008 the Pacific whiting shoreside fishery was 
closed prematurely because of overfished species bycatch issues, 
leaving a major portion of its allocation unharvested. Although NMFS 
transferred the unharvested allocations to the other nontribal fleets, 
by year-end, 7 percent of the 2008 whiting OY was unharvested. Assuming 
no bycatch issues, the 2009 allocations to the nontribal (100,150 mt) 
and tribal (31,789 mt) fleets will lead to a potential harvest of about 
132,000 tons, a decrease of 47 percent from the harvest level in 2008 
(248,000 mt). Assuming 2008 ex-vessel prices ($254/mt), this harvest 
could be potentially worth about $33.5 million. This level is similar 
to values earned in 2007 ($36 million) and greater than the 2003-2007 
average ($29 million), but representing a 47 percent decrease from 
estimated 2008 ex-vessel value ($63 million).
    However, market conditions in 2009 will not likely be the same as 
in 2008. On the positive side, the price of fuel has been declining 
since June of 2008. March 2009 fuel price estimates typically range 
from $1.60 to $1.70 a gallon depending on the port. On the negative 
side, some members of the industry expect whiting prices to fall 
substantially from record highs because of the recent decline in the 
U.S. and world economies.
    In January 2009, the Pacific Fishery Management Council published 
the Final Environmental Impact Statement (FEIS): Proposed Acceptable 
Biological Catch and Optimum Yield Specifications and Management 
Measures for the 2009-2010 Pacific Coast Fishery. The FEIS includes an 
economic analysis of the range of alternatives the Council had under 
consideration. While that analysis included an assessment of the 
Council's Preferred Alternative, it realized the Council would make its 
final choice of the Pacific whiting OY in March 2009. The FEIS compared 
the Preferred Alternative to a No-Action Alternative (expected 2008 
commercial groundfish landings and deliveries including whiting). The 
FEIS estimated that compared to the No-Action Alternative the Preferred 
Alternative would lead to an increase of $13.3 million in total tribal 
and nontribal commercial groundfish ex-vessel value (See Table 7-57a of 
the FEIS). However, that analysis included an assumed 2009 whiting 
catch of 298,000 mt (248,300 nontribal and 50,000 tribal) and an 
average 2009 ex-vessel value of $171/mt.
    This rule limits the total tribal and nontribal catch to 132,000 
mt. Thus compared to the No-Action Alternative in the FEIS, whiting 
harvest will decrease, not increase. Assuming average whiting ex-value 
used in the Council's analysis ($171 per mt), this rule would result in 
the total 2009 whiting ex-vessel value of $22.6 million. This is $28.5 
million less than the FEIS projection of $51.1 million. When this 
change is combined with the projections for the other groundfish 
fisheries, rather than an increase of $13.3 million this rule would 
result in a $15.1 million decrease in the total combined tribal and 
non-tribal groundfish value. Updating the Council's analysis using the 
2008 average whiting ex-vessel of $254/mt, the Preferred Alternative 
would lead to a projected decrease of $4.2 million in total combined 
tribal and nontribal groundfish ex-vessel value, not an increase of 
$13.3 million as shown in Table 7-57a of the FEIS.
    Pursuant to Executive Order 13175, this action was developed after 
meaningful consultation and collaboration with tribal officials from 
the area covered by the FMP. Under the Magnuson-Stevens Act at 16 
U.S.C. 1852(b)(5), one of the voting members of the Council must be a 
representative of an Indian tribe with federally recognized fishing 
rights from the area of the Council's jurisdiction. In addition, 
regulations implementing the FMP establish a procedure by which the 
tribes with treaty fishing rights in the area covered by the FMP 
request new allocations or regulations specific to the tribes, in 
writing, before the first of the two meetings at which the Council 
considers groundfish management measures. Both the Makah and Quileute 
Tribes requested a whiting allocation for 2009. The regulations at 50 
CFR 660.324(d) further states ``the Secretary will develop tribal 
allocations and regulations under this paragraph in consultation with 
the affected tribe(s) and, insofar as possible, with tribal 
consensus.'' The release of some Pacific whiting from the Makah tribal 
set aside was proposed by the Makah tribe.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian Fisheries.

    Dated: April 30, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 660--FISHERIES OFF WEST COAST STATES

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

    Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 7001 et seq.


0
2. In Sec.  660.373 paragraphs (b)(1)(iii) and (b)(4)(i) are revised to 
read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (b) * * *
    (1) * * * * *
    (iii) Primary whiting seasons. After the start of a primary season 
for a sector of the whiting fishery, the season remains open for that 
sector until the quota is taken or a bycatch limit is reached and the 
fishery season for that sector is closed by NMFS. The starting dates 
for the primary seasons for the whiting fishery are as follows:
    (A) Catcher/processor sector--May 15.
    (B) Mothership sector--May 15.
    (C) Shore-based sector
    (1) North of 42[deg] N. lat.--June 15;
    (2) Between 42[deg]-40[deg]30' N. lat.--April 1; and
    (3) South of 40[deg]30' N. lat.--April 15.
* * * * *
    (4) * * *
    (i) The whiting fishery bycatch limit is apportioned among the 
sectors identified in paragraph (a) of this section based on the same 
percentages used to allocate whiting among the sectors, established in 
Sec.  660.323(a). The sector specific bycatch limits are: For catcher/
processors 6.1 mt of canary rockfish, 85.0 mt of widow rockfish, and 
8.5 mt of darkblotched rockfish; for motherships 4.3 mt of canary 
rockfish, 60.0 mt of widow rockfish, and 6.0 mt of darkblotched 
rockfish; and for shore-based 7.6 mt of canary rockfish, 105.0 mt of 
widow rockfish, and 10.5 mt of darkblotched rockfish.
* * * * *

0
3. In part 660, subpart G, Table 1a is revised to read as follows:
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* * * * *

0
4. Footnotes f/ and q/ to Tables 1a through 1c are revised to read as 
follows:
* * * * *

    \f\ Pacific whiting--The most recent stock assessment was 
prepared in February 2009. The stock assessment base model estimated 
the Pacific whiting biomass to be at 32 percent (50th percentile 
estimate of

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depletion) of its unfished biomass in 2009. The U.S Canada coastwide 
ABC is 253,582 mt, the U.S. share of the ABC is 187,346 mt (73.88 
percent of the coastwide ABC). The U.S.-Canada coastwide OY is 
184,000 mt with a corresponding U.S. OY of 135,939 mt. The tribal 
set aside is 50,000 mt. The amount estimated to be taken as research 
catch and in non-groundfish fisheries is 4,000 mt. The commercial OY 
is 81,939 mt. Each sector receives a portion of the commercial OY, 
with the catcher/processors getting 34 percent (27,859 mt), 
motherships getting 24 percent (19,665 mt), and the shore-based 
sector getting 42 percent (34,414 mt). The allocation for the 
fishery south of 42[deg]N. lat. is 1,721 mt.
* * * * *
    \q\ Widow rockfish was assessed in 2005 and an update was 
prepared in 2007. The stock assessment update estimated the stock to 
be at 36.2 percent of its unfished biomass in 2006. The ABC of 7,728 
mt is based on the stock assessment update with an F50% 
FMSY proxy. The OY of 522 mt is based on a rebuilding 
plan with a target year to rebuild of 2015 and an SPR harvest rate 
of 95 percent. To derive the commercial harvest guideline of 460.4 
mt the OY is reduced by 1.1 mt for the amount anticipated to be 
taken during research activity, 45.5 mt for the tribal set-aside, 
7.2 mt the amount estimated to be taken in the recreational 
fisheries, 0.4 mt for the amount expected to be taken incidentally 
in non-groundfish fisheries, and 7.4 mt for the amount projected to 
be taken during EFP fishing. The following are the sector specific 
bycatch limits established for the Pacific whiting fishery: 85.0 mt 
for catcher/processors, 60.0 mt for motherships, and 105.0 mt for 
shore-based.
* * * * *
[FR Doc. E9-10306 Filed 4-30-09; 8:45 am]
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