Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures, 27508-27562 [2011-10799]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 91 (Wednesday, May 11, 2011)]
[Rules and Regulations]
[Pages 27508-27562]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10799]



[[Page 27507]]

Vol. 76

Wednesday,

No. 91

May 11, 2011

Part III





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; Biennial Specifications and 
Management Measures; Final Rule

Federal Register / Vol. 76 , No. 91 / Wednesday, May 11, 2011 / Rules 
and Regulations

[[Page 27508]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 100804324-1265-02]
RIN 0648-BA01


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.

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SUMMARY: This final rule establishes the 2011-2012 harvest 
specifications for most of the species in the groundfish fishery and 
management measures for that fishery off the coasts of Washington, 
Oregon, and California consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) and the Pacific Coast Groundfish 
Fishery Management Plan (PCGFMP). This rule also establishes, under 
emergency authority in section 305 of the Magnuson-Stevens Act (MSA), 
harvest specifications for eight overfished species, and for flatfish.
    Emergency authority is being invoked to implement measures that 
were included in Amendment 16-5 to the PCGFMP, which NMFS disapproved 
in December 2010. These include a new rebuilding plan for petrale sole, 
revised rebuilding plans for the remaining seven overfished species, 
and revised status determination criteria and precautionary harvest 
control rule for flatfish.

DATES: This rule is effective May 11, 2011. Comments must be received 
no later than June 10, 2011.

ADDRESSES: Copies of this rule, the Record of Decision (ROD) and 
Regulatory Impact Review (RIR)/Final Regulatory Flexibility Analysis 
(FRFA) are available from William Stelle, Regional Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070. Electronic copies of this final rule are also available at the 
NMFS Northwest Region Web site: https://www.nwr.noaa.gov
    You may submit comments, identified by 0648-BA01, by any one 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: Sarah Williams.
     Mail: 7600 Sand Point Way NE., Seattle, WA, 98115.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) 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 in the required fields, if you wish to 
remain anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Sarah Williams, 7600 Sand Point Way 
NE., Seattle, WA, 98115. By phone at 206-526-4646 or fax at 206-526-
6736.
    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/.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS published a proposed rule to implement the 2011-2012 
groundfish harvest specifications and management measures on November 
3, 2010 (75 FR 67810). The proposed rule comment period was extended 
through January 4, 2011 (75 FR 75449, December 23, 2010) to provide 
additional opportunity for public comment given the delay in 
implementation. NMFS received 35 letters of comment, which are 
addressed later in the preamble of 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 
complex that is available for harvest in a specific year is referred to 
as a harvest specification. The PCGFMP requires the harvest 
specifications and management measures for groundfish to be set at 
least biennially. This final rule, which implements the NMFS preferred 
alternative described in the Final Environmental Impact Statement 
(FEIS), would set 2011-2012 and beyond harvest specifications and 
management measures for most of the groundfish species or species 
complexes managed under the PCGFMP. Specifications for the overfished 
species and flatfish are also included in this final rule but are 
adopted under the emergency authority described in section 305 of the 
MSA. The groundfish fishery regulations include a collection of 
management measures intended to keep the total catch of each groundfish 
species or species complex within the harvest specifications. The 
management measures would be revised by this action for 2011 and 2012.
    The Notice of Availability for the FEIS for this action was 
published on March 11, 2011 (76 FR 13401). The final NMFS preferred 
alternative in the FEIS is a modified version of the Council's final 
preferred alternative (FPA) which was described in the proposed rule 
for this action. The NMFS preferred alternative differs from the 
Council's FPA and the specifications discussed in the proposed rule on 
this action with respect to the specifications for yelloweye rockfish 
and cowcod, and management measures relative to the Cowcod Conservation 
Area (CCA). These differences are discussed in detail in the Provisions 
Implemented Through Emergency Rule and Changes from the Proposed Rule 
sections of this rule.

Provisions Implemented Through Emergency Rule

    Section 305(c) of the MSA provides the Secretary of Commerce the 
authority to promulgate emergency regulations that are treated as an 
amendment to an FMP for the period the regulations are in effect. The 
one new and seven revised rebuilding plans, revisions to flatfish 
proxies, ACLs for overfished species, and specifications for flatfish 
contained in this final rule are being adopted under emergency 
authority because these measures were part of, or are based on, 
Amendment 16-5 to the PCGFMP, which NMFS disapproved. This emergency 
action is necessary because NMFS is under court order to establish new 
specifications for overfished species by April 29, 2011, before the 
Council can submit and NMFS can implement a revised Amendment 16-5.
    NMFS disapproved Amendment 16-5 because at the time of NMFS' 
approval decision, there was not an FEIS to support the decision. 
Review of actions under the Magnuson-Stevens Act (16 U.S.C. 1854(a)) 
requires that before approving an FMP or amendment, NMFS must review 
the FMP or amendment for consistency with the measures of the MSA 
itself as well as other applicable law. One of the primary tools that 
NMFS uses to accomplish this review is an adequate FEIS drafted

[[Page 27509]]

consistent with the guidance contained within NAO 216-6 (Environmental 
Review Procedures For Implementing the National Environmental Policy 
Act). NMFS completed the FEIS and made it available for public review 
on March 11, 2011.
    As is described in the proposed rule preamble, on April 29, 2010, 
the district court for the Northern District of California issued an 
order in NRDC v. Locke, Case 3:01-cv-00421-JLI, vacating the 2009-10 
harvest levels for yelloweye rockfish, cowcod, and darkblotched 
rockfish on the basis that the harvest levels did not meet the MSA 
mandate to rebuild those stocks in as short a time as possible taking 
into account factors including the needs of fishing communities. The 
court upheld the integrated or holistic approach used to develop the 
harvest levels for all of the overfished species and to analyze their 
impacts on communities, which was first applied in Amendment 16-4.
    The Council, continuing the integrated or holistic approach 
developed in Amendment 16-4 and upheld by the district court, developed 
suites of overfished species ACLs, with ACLs for most of the non-
overfished species held constant between the alternatives. The impacts 
of these suites of ACLs are analyzed in the FEIS, rather than the 
impacts of individual species ACLs. The DEIS included three alternative 
suites with lower, intermediate and higher ACLs for the overfished 
species, as well as the Council FPA that included the higher ACLs for 
all of the overfished species except for darkblotched rockfish, for 
which the Council adopted the intermediate ACL.
    In response to public comment regarding rebuilding plans for 
overfished species and to ensure consistency with the court's order in 
NRDC v. Locke, Case 3:01-cv-00421-JLI, NMFS included in the FEIS an 
additional alternative (identified as Alternative 4, the NMFS preferred 
alternative) that was not expressly considered in the DEIS. The NMFS 
preferred alternative includes the same ACLs as the Council's FPA, 
except those for yelloweye and cowcod. It does not include changes to 
the CCAs that were included in the Council's FPA. For cowcod and 
yelloweye, the NMFS preferred alternative implements ACLs based on 
Spawning Potential Ratio (SPR) harvest rates that are associated with 
shorter rebuilding periods than those in the Council FPA. Specifically, 
in the NMFS preferred alternative, the target rebuilding year and the 
SPR harvest rate for cowcod are 2068 and 82.7 percent, and the target 
rebuilding year and the SPR harvest rate for yelloweye rockfish are 
2074 and 76.0 percent. NMFS determined that the ACL in the Council's 
and NMFS' preferred alternative for darkblotched rockfish meets the MSA 
standard and is consistent with the court's order. Although the harvest 
level for darkblotched is similar to the level vacated by the court in 
2010, the new rebuilding plan is based on a new stock assessment, uses 
a more conservative SPR harvest rate (64.9 percent rather than 62.1 
percent), and rebuilds three years faster than the prior rebuilding 
plan (2025 rather than 2028).
    The NMFS preferred alternative would rebuild as quickly as possible 
while avoiding serious adverse impacts to communities, and thus meets 
the MSA standard. Maintaining the 2010 level of economic activity in 
the most vulnerable communities could be expected to provide the 
consistency necessary for stability in the fishing community 
infrastructure and be adequate to support the implementation of the 
trawl rationalization program. At the same time the strategy would 
shorten the rebuilding duration for five of the overfished species 
(bocaccio, cowcod, darkblotched rockfish, widow rockfish and yelloweye 
rockfish); and maintain the upward rebuilding trajectories for the two 
overfished species (canary rockfish and Pacific Ocean perch (POP)) 
where new stock assessments redefined the starting point from which 
rebuilding began. Unlike the Council's FPA, the NMFS preferred 
alternative does not implement proposed changes to the CCAs that would 
allow commercial fixed gear and recreational fishing in areas shoreward 
of 30 fathoms and would also allow retention of shelf rockfish in 
depths shallower than 30 fathoms. The impacts of the proposed changes 
on cowcod, particularly juveniles, are uncertain, and increased impacts 
on juveniles could potentially delay rebuilding. In addition, because 
the ACL for cowcod is so extremely low, any measures that potentially 
increase cowcod mortality require better information on potential 
biological and economic effects to support such a change. In sum, NMFS 
concluded that the NMFS preferred alternative is more consistent with 
direction provided by the court in NRDC v. Locke, Case 3:01-cv-00421-
JLI, and is more consistent with the MSA obligations to rebuild 
overfished species in the shortest timeframe possible, taking into 
account the obligation to rebuild, the needs of fishing communities, 
and the marine environment.

Comments and Responses

    NMFS published a proposed rule on November 2, 2010 (75 FR 67810) 
with a comment period that closed on December 3, 2010. This comment 
period was extended to January 4, 2011 to allow more time for public 
comments. NMFS received 35 comments on the proposed rule. The 
Department of the Interior submitted a letter stating that they 
reviewed the proposed rule and had no comments. The Washington 
Department of Fish and Wildlife (WDFW), the Oregon Department of Fish 
and Wildlife (ODFW) and the California Department of Fish and Game 
(CDFG) all submitted letters in support of the Council's final action 
and suggested corrections to the proposed rule. 13 letters were 
submitted from fishing industry members in support of the Council's 
recommended changes to the depth restrictions in the CCA and the slope 
rockfish retention changes. One comment was submitted regarding a 
request for a processing at sea exemption. NMFS also received a number 
of comments from the public regarding the impacts from the overfished 
species specifications. The Council submitted a letter stating that the 
Exempted Fishing Permit that was issued in August of 2010 would 
actually be conducted in 2011. Oceana and the Natural Resource Defense 
Council (NRDC) submitted a joint letter regarding the proposed rule and 
FMP Amendments 16-5 and 23. In their letter they criticized NMFS for 
setting harvest specifications that allegedly did not comply with the 
MSA mandate to rebuild overfished species in a period as short as 
possible. Additionally, they criticized the implementation of Amendment 
23 stating that the best available science was not used and that NMFS 
was not precautionary enough in setting harvest specifications for a 
number of species and species complexes. Ocean Conservancy submitted a 
letter raising similar issues as the joint Oceana-NRDC letter. 
Substantive comments received on the proposed rule are addressed in the 
following section:

Amendment 23 Implementation (P*, ABCs, ACLs, etc) and Stock Complexes

    Comment 1: The ABC control rule makes Scientific and Statistical 
Committee's (SSC) involvement functionally expendable because it 
contemplates presenting the Council with a range of potential 
scientific uncertainty reduction values, based on the SSC recommended 
``sigma'' values and a range of probabilities of overfishing, from 
which the Council

[[Page 27510]]

may choose. NMFS should adopt an ABC control rule that allows the SSC 
to recommend P* and sigma values along with a decision framework that 
allows changes to the recommended ABCs to be fully informed by analyses 
of resulting overfishing risks and environmental consequences.
    Response: The ABC control rule selected by the Council is based on 
the recommendation of the SSC, and is consistent with the MSA and the 
NS1 (74 FR 3178, January 16, 2009). The SSC recommends the OFL and 
determines a sigma value representing scientific uncertainty with 
respect to stock assessments. Once it has determined those values, it 
can provide the Council with the reductions from OFL that would occur 
based on the sigma value in conjunction with a range of probabilities 
of overfishing. This approach conforms with NMFS's NS 1 guidelines. In 
response to comments on the guidelines, NMFS explains that determining 
the acceptable level of risk of overfishing that results from 
scientific uncertainty is a policy issue for the Council to decide. The 
SSC must recommend an ABC to the Council after the Council advises the 
SSC on the acceptable probability that a catch equal to the ABC would 
result in overfishing (January 16, 2009, 74 FR 3178, Response to 
Comment 42 at 3192). The SSC's role is to determine both the level of 
scientific uncertainty that exists and to incorporate the Council's 
policy decision as to acceptable levels of overfishing risk resulting 
from that uncertainty in developing an ABC. The SSC's recommendations 
regarding the OFL and sigma limit the range of ABC reductions possible 
under the available range of P* values consistent with the best 
scientific information regarding scientific uncertainty.
    Comment 2: The proposed sigma values for category 1 stocks 
represent underestimated and/or inaccurate quantification of scientific 
uncertainty; they do not account for uncertainty arising from sources 
other than estimates of biomass in stock assessments, and they do not 
accurately account for uncertainty in estimates of biomass in stock 
assessments.
    Response: While the proposed sigma value for data-rich stocks 
(category 1) does not include quantification of all known sources of 
scientific uncertainty, it is the best scientific information available 
at this time and the SSC will continue to refine this value in future 
biennial cycles. The SSC acknowledged that its recommended sigma value 
for data-rich species does not account for all sources of scientific 
uncertainty, but recommended this value as ``the current best estimate 
of scientific uncertainty.'' (Supplemental SSC Report, April 2010, 
Agenda I.2.b). The Supplemental SSC Report 1 included in the March 2010 
briefing book, which is the Councils record for each meeting and 
contains reports from advisory bodies, state and Federal agencies and 
public comments, states that the SSC viewed quantifying the uncertainty 
surrounding stock size estimations as the highest priority, given the 
large variability in stock assessments. The SSC did not recommend 
quantifying other sources of uncertainty for the 2011-2012 
specifications cycle, but noted that it intends to consider other types 
of errors for future biennial cycles, specifically forecast uncertainty 
and uncertainty in the optimal harvest rate. In short, the SSC's 
recommended sigma values are the best available scientific information 
at this time. In addition, with respect to longspine thornyhead and 
shortspine thornyhead, the ACLs for the area south of 40[deg]10' N.lat 
are reduced below the ABC to account for uncertainty associated with 
limited trawl surveys.
    Comment 3: The proposed sigma values for category 2 and 3 stocks 
lack a technical basis and thus are arbitrary. The Council should have 
used the PSA analysis to generate an appropriate P*.
    Response: The SSC noted that scientific uncertainty with respect to 
the biomass estimates for category 2 and 3 stocks cannot be precisely 
quantified due to the lack of available information about these stocks. 
The NS 1 guidelines recognize that precise quantification assessments 
are not available for all stocks, such as the category 2 and 3 stocks 
at issue here (See Response to Comment 36, 74 FR at 3190, January 16, 
2009). With a P* approach for deciding the ABC for category 2 and 3 
stocks, the SSC recommended setting the value of sigma ([sigma]) for 
category 2 and 3 stocks to 0.72 and 1.44 respectively (i.e., two and 
four times the [sigma] for category 1 stocks). The difference between 
buffers determined using sigma values of 0.72 and 1.44 corresponds 
fairly closely to the difference between the buffers previously used 
for category 2 and 3 stocks (25 percent versus 50 percent) when P* is 
in the range 0.3 ~ 0.35. Also, the SSC noted that results from decision 
tables for some category 2 stocks indicate values for sigma of 
approximately .72 (PFMC I.2.b, Supplemental SSC Report, April 2010). 
The specific sigma values of 0.72 and 1.44 were recommended by the SSC 
and are considered to be the best available scientific information; 
however, the values are not based on a formal analysis of assessment 
outcomes and could change substantially when the SSC reviews additional 
analyses in future management cycles. These sigma values represent the 
SSC's best estimate given the absence of a formal analysis of 
assessment outcomes on which to quantify scientific uncertainty as was 
done for category 1 stocks. The commenters specifically mention that 
the Council and NMFS should have used other methods for setting the 
sigma values for category 2 and 3 species, such as looking at the 
distributions of OFLs for each stock, or the results of the PSA 
analysis. However, neither of these methods was suggested by commenters 
until very late in the development of the 2011-2012 specifications nor 
recommended by the SSC for this specifications cycle.
    Comment 4: The P* values used in the proposed rule are too high, 
and allow for too great a risk of overfishing due to an inaccurate 
estimate of the OFL, especially for overfished species. P* and 
resulting ABCs for category 2 and 3 stocks are not consistent with SSC 
recommendations.
    Response: The NS1 guidelines provide the following standards for 
setting the ABC: (1) The ABC may not exceed the OFL, and (2) the 
probability that overfishing will occur cannot exceed 50 percent and 
should be a lower value. The Council chose a P* value of .45, or a 45 
percent probability of overfishing, for data-rich species with data-
rich assessments. For category 2 and 3 species, with data-poor or no 
assessments, the Council generally applied a P* value of .4, or a 40 
percent probability of overfishing. The comment suggests that the 50 
percent cap set by the NS1 guidelines is inadequate, and that the MSA 
requires a lower probability of overfishing. NMFS considered this issue 
in developing the NS 1 guidelines and ultimately determined that while 
neither the MSA nor the relevant case law requires the use of a 
specific probability, a 50 percent probability of success is a lower 
bound. NMFS acknowledges that some overfishing may occur even with ABCs 
that account for scientific uncertainty, however, it does not believe 
that the MSA requires a complete elimination of any probability of 
overfishing, as reflected in the guidelines (Response to Comment 63, 74 
FR at 3195-96, January 16, 2009). The Council's choice of P* is 
consistent with the guidelines.
    The commenters specifically point to the ABCs for overfished 
species, and contend that these are not consistent with rebuilding 
plans. However, ACLs for the overfished species are based on and 
consistent with the rebuilding plans, which are in turn based on the

[[Page 27511]]

rebuilding analyses for these species. The process for developing the 
ACLs is described in the preamble to the proposed rule for this action 
(75 FR at 67827-29, January 16, 2009) and in the FEIS. Thus, the ACLs 
for the overfished species are in most cases set far below the ABCs 
derived following the ABC control rule set forth in Amendment 23.
    For category 1 stocks, the scientific uncertainty reduction from 
OFL that results from a P* of .45 and a sigma of .36 is 4.4 percent. 
For healthy stocks, this reduction is more risk-averse than the 
approach of setting the OY equal to ABC that was used in previous 
biennial cycles. For species in the precautionary zone, application of 
the 40-10 or 25-5 harvest control rules results in an additional 
reduction between ABC and ACL.
    The commenters also contend that the P* values the Council adopted 
for category 2 and 3 stocks are inconsistent with the SSC's 
recommendation, which the commenters characterize as requiring P* 
values that would result in reductions from OFL of approximately 25 
percent and 50 percent. The Council adopted a general policy of using a 
P* of 0.4 for category 2 and 3 stocks. The Council discussed P* values 
for category 2 and 3 stocks of 0.35 and 0.32, respectively. In its 
report the SSC noted that these P* values, in combination with the 
sigma values described above, would have resulted in an approximately 
24 percent reduction from OFL for category 2 stocks, and an 
approximately 51 percent reduction from OFL for category 3 stocks, 
approximating the 25 percent and 50 percent reductions from former ABC 
that the Council used prior to this specification cycle. However, the 
SSC did not make a recommendation regarding appropriate P* values but 
did endorse the Council's final ABC values. In discussing the issue of 
the buffer between OFL and ABC for category 2 and 3 stocks the Council 
noted that previously the buffer between former ABC and OY took into 
account many sources of uncertainty, including scientific uncertainty, 
but that under NS 1 the buffer between OFL and ABC is now specific to 
scientific uncertainty. There was therefore concern regarding ``double 
counting'' of uncertainty that might result from using status quo 
buffers to determine the ABC for category 2 and 3 species. For this 
reason, the Council concluded that it would be inappropriate to use 
these reductions to quantify scientific uncertainty in the reduction 
from the OFL to ABC. A review of the ACLs for category 2 and 3 stocks 
shows that for a number of stocks, the reductions from ABC to ACL 
address stock status, management uncertainty, and other factors. For 
example, the ACLs for longnose skate, starry flounder, the other fish 
complex and the other flatfish complex are all reduced below the ABC to 
account for management uncertainty. The ACL for sablefish is reduced 
below the ABC according to the 40-10 harvest control rule, as this 
species is in the precautionary zone. The southern ACLs for longspine 
thornyhead and shortspine thornyhead are reduced in order to account 
for uncertainty associated with trawl surveys in those areas. These 
reductions are all described in the FEIS and the proposed rule.
    The commenters specifically discuss what they see as potential 
negative impacts from the ABCs for lingcod, sablefish and black 
rockfish. The FEIS considered the risk of overfishing to all species 
and no OFLs were projected to be exceeded under any of the 
alternatives. For lingcod, the ACL (2330 mt in 2011) was set equal to 
the ABC, however the projected catches are only 685 mt leaving a 
substantial buffer. Additionally, it is likely that the catches will 
come in under the ACL because of the limited shelf opportunities given 
the Rockfish Conservation Area (RCA) configurations implemented through 
this rule. For sablefish the estimated catch of 5407 mt is well below 
the ACL value of 6813 mt and the ABC of 8418 mt. Finally, for black 
rockfish the estimated catch of 905 mt is well below the ACL of 1426 mt 
and the coastwide ABC of 1589 mt to minimize the risk of overfishing.
    For the minor rockfish complexes, a P* value of 0.45 was used in 
combination with the SSC-recommended sigma values to determine the ABCs 
for the component stocks. Historically, the OY for minor rockfish north 
has been shared between Oregon and California with no formal catch 
sharing agreements because the OY was generally high enough to prevent 
concerns over the allocation of catch between the states. A struggle 
for fish could result from 2011-2012 ACLs that are significantly lower 
than the 2010 OY for the minor nearshore rockfish north subcomplex. 
(PFMC Supplemental Groundfish Management Team (GMT) Report, I.2.b April 
2010). Applying a P* of 0.45 to determine the ABC for this subcomplex 
results in an ABC lower than the 2010 OY, but higher than the other 
alternatives considered for determining the ABC. This option 
constitutes an interim approach to accounting for scientific 
uncertainty given the current organization of the complexes and the 
time needed to work out a sharing agreement between the states if 
necessary. Applying a P* of .45 for the minor rockfish complex 
components reflects the fact that in contrast to the Other Fish and 
Other Flatfish complexes, the component stocks in the minor rockfish 
complexes are not all category 3 stocks. In addition, it reflects the 
fact that the complexes are not ideally organized to account for 
scientific uncertainty, and represents a balance between the risk of 
overfishing due to scientific uncertainty and the risk of unnecessarily 
limiting fisheries in this biennium until a thorough analysis of the 
rockfish complexes can be completed.
    Comment 5: ACLs should be reduced from ABCs to account for 
management uncertainty where there is not accurate data regarding true 
catch amounts and no modeling of management uncertainty. The ACL and 
ACT control rules should identify all sources of management 
uncertainty. It is not clear how management uncertainty is accounted 
for by the use of the ACTs for yelloweye rockfish and POP.
    Response: The NS1 guidelines do not expressly contemplate a buffer 
between ABC and ACL as the primary means to address management 
uncertainty. An ACT may be established to account for management 
uncertainty in controlling the catch at or below the ACL, but ACTs are 
just one type of accountability measure that can address management 
uncertainty. NMFS specifically considered a system such as that 
described by the commenter that would require that ACL be set below the 
ABC to account for management uncertainty, but ultimately rejected it 
on the basis that it was Congressional intent that ACL should be 
considered a true limit, not a target catch level (Response to Comment 
8, 74 FR at 3183, January 16, 2009). Instead, the guidelines require 
that, to prevent ACLs from being exceeded, Councils must address the 
management uncertainty in their fisheries using appropriate 
accountability measures, which could possibly include setting an ACT. 
While the Council in fact set the ACL below the ABC for a number of 
stocks (longnose skate, starry flounder, the other fish complex, the 
other flatfish complex), consistent with the guidelines, the Council's 
primary means for addressing management uncertainty is through 
accountability measures. Section 4.1 and tables 4-1 and 4-3 in the FEIS 
describe the actual impacts that are expected to the stocks in the 
fishery as a result of the management measures included in the 
integrated alternatives. For most of the non-overfished stocks, 
expected catch levels are far below the ACLs set for these

[[Page 27512]]

stocks. Thus, the proposed management measures are expected to ensure 
that for the non-overfished stocks, actual catch levels will not 
approach the ACLs. For the overfished stocks, the ACLs are based on the 
rebuilding plans. Management measures have been specifically designed 
to keep the catch of these stocks below their ACLs.
    The NS 1 guidelines make clear that the use of ACTs is optional, 
not required. The proposed guidelines did require ACTs as reference 
points, but the final action ``retains the concept of an ACT and an ACT 
control rule, but does not require them to be included in FMPs.'' The 
guidelines note that where fisheries lack inseason management controls 
to prevent ACLs from being exceeded, ``AMs should utilize ACTs that are 
set below ACLs so that catches do not exceed the ACL.'' (74 FR at 3178, 
January 16, 2009).
    The Groundfish FMP provides for inseason management to prevent 
catch limit overages. The current system of inseason management in the 
groundfish fishery has resulted in very few catch limit overages in the 
last four years. Catch limit overages have occurred for canary rockfish 
(2001-2007), Dover sole (2006), POP (2007) and darkblotched 
rockfish(2000, 2001, and 2007) (PFMC, Agenda item G.5.a, attachment 1, 
November 2009).
    Projecting canary rockfish impacts has been problematic, especially 
in the limited entry trawl sector. Under a rationalized fishery, there 
is individual accountability and real time reporting that is expected 
to substantially improve performance relative to the 2010 fishery 
(i.e., ability to stay within the ACL). For recreational fisheries, the 
Council recommended the use of HGs as an accountability measure to 
increase the probability that total catch will stay within the ACL. POP 
and Dover sole are trawl dominant and management performance is also 
expected to improve under a rationalized fishery structure. However, 
the nature of POP catch in the whiting fishery could result in high 
incidental catch events such as occurred in the Pacific whiting 
shoreside fishery in 2007. For development of the Council's FPA in the 
EIS, the Council recommended ACTs for POP and yelloweye rockfish for 
the FPA in order to increase the likelihood that catches will remain 
below the ACL. This final rule implements an ACT for POP, but not for 
yelloweye rockfish. This final rule implements an ACL for yelloweye 
that is 2.2 mt above the projected catch. The ACL value is based on the 
high end estimates of projected set aside amounts. Therefore, NMFS 
believes that the 2.2 mt difference between the ACL and the projected 
catch means that an ACT is not necessary for yelloweye. Further, with 
the implementation of the Trawl Rationalization program NMFS will have 
better inseason monitoring and will be able to track catches relative 
to set aside allocations and close fisheries or take other appropriate 
action if fisheries are projected to attain their allocations.
    Comment 6: The use of stock complex ACLs must be consistent with 
new guidance outlined in the NS1 guidelines to ensure that stocks are 
sufficiently similar in geographic distribution, life history, and 
vulnerabilities to the fishery such that the impact of management 
actions on the stocks is similar. NMFS should either reorganize species 
complexes to include stocks with similar vulnerabilities to the 
fishery, or designate indicator species from among the most vulnerable 
species in each complex. In addition, species-specific ACLs should be 
set where possible.
    Response: The Council recognized the need for reorganization of the 
four complexes described in the EIS to reflect the results of the 
vulnerability analysis conducted by the GMT. However, it was determined 
that this work could not be completed in time for the 2011-2012 
specifications and management measures. The Council and NMFS anticipate 
the development of recommendations for reorganized stock complexes in 
time for the 2013-14 specifications.
    As the commenters point out, the GMT analyzed the vulnerability of 
the stocks currently managed in complexes and determined that the 
existing complexes are comprised of stocks with a range of 
vulnerabilities. It was recognized that the existing complexes were 
created prior to the revised NS 1 and are not organized in the best 
possible manner for taking into account scientific uncertainty and the 
relevant management issues. For this reason, it has been noted by the 
GMT that the reorganization of stock complexes is an issue they will 
work on for the 2013-2014 biennial specifications and management 
measures cycle. The results of any analysis conducted could be 
presented to the Council for action. The analysis needed to support 
such reconsideration could not be completed in time for the current 
cycle.
    The commenters state that until the complexes can be reorganized, 
indicator stocks should be designated to represent the more vulnerable 
stocks in the complexes. Typically indicator stocks would be used for 
an assemblage of similar species when most of the species do not have 
an assessment. This is not the case for 2011-2012 because the Council 
developed assessments for all species even if they were data-limited 
assessment for data poor stocks. The issue is not the absence of an 
estimate for safe levels of harvest, even if it is data poor, it is 
that by grouping the ACLs there is uncertainty that each individual 
species remains under its contributions to the group. Indicator stocks 
do not address this issue. Additionally, the premise behind using an 
indicator species is that it is representative of the group. Because 
the current stock complexes are not organized such that the species 
within each group are exposed to similar fishing pressure, it is 
unclear how an indicator species would be selected to represent the 
group. As previously stated, the analysis needed to support a 
reorganization of the current stock complexes or to define indicator 
stocks could not be completed for this biennial cycle, but will be 
addressed at a later date. NMFS agrees that stock complexes should be 
organized so they include similarly vulnerable species and that 
indictor stocks may be a useful tool to manage fisheries in a 
sustainable manner while preventing overfishing of the most vulnerable 
species.
    To aid in the management of stock complexes, NMFS will be notifying 
the states of Washington, Oregon and California of the intent to 
propose revisions to the regulatory provisions at Sec.  660.12 (8), 
Sec.  660.130(d), Sec.  660.230(c), and Sec.  660.330(c) pertaining to 
the sorting and reporting of groundfish catch. NMFS believes that 
refining the sorting requirements for the rockfish complexes is 
necessary for catch accounting and management of the most vulnerable 
stocks within complexes. Because this provision would require state and 
Federal reporting systems to be modified including the data systems 
that house these data, such a change cannot happen for the 2011 fishing 
season.
    During the process of developing the 2011-2012 ACLs, the Council 
considered removing several species from the minor rockfish complexes, 
but did not do so for this biennial cycle because changes necessary to 
manage these species individually under the trawl rationalization 
program could not be completed in time for this cycle.
    Comment 7: The FPA lacks adequate buffers for the data-poor stock 
complexes. Specifically, the minor nearshore subcomplexes contain OFL/
ABC buffers of roughly 14 percent and no buffer between ABC and ACL, 
even though these complexes contain highly vulnerable component species 
such as copper, China and quillback. The minor

[[Page 27513]]

slope subcomplexes contain OFL/ABC buffers of roughly 9 percent, and 
ABC/ACL buffers of between 12-25 percent, even though these 
subcomplexes are composed of data-poor category 3 species and highly 
vulnerable rougheye and shortraker.
    Response: It is unclear which kind of ``buffers'' the commenters 
see as inadequate and therefore it is difficult to respond to this 
comment. The ABCs for the species included in the complexes were 
recommended by the SSC and adopted by the Council as described above in 
response to Comment 4. The Council specifically accounted for 
management uncertainty in the ACLs for the Other Fish and Other 
Flatfish by adopting ACLs lower than the sum of the ABCs for the 
individual components of these complexes. The ACLs for the minor shelf 
and slope rockfish subcomplexes are also significantly lower than the 
ABCs for these subcomplexes (shelf north--50 percent lower, slope 
north--12 percent lower, shelf south--49 percent lower, slope south--25 
percent lower). In addition, the projected catches of the complexes and 
subcomplexes, with the exception of the minor nearshore rockfish north 
subcomplex, are all significantly below the ACLs. For the minor 
nearshore rockfish north subcomplex, as is discussed in the FEIS, 
monitoring may indicate a need for inseason management measures to 
prevent exceeding the ACL (FEIS at pg 352). In summary, given the 
reductions between OFL and ABC, and ABC and ACL, and the fact that 
catches are expected to be lower than the ACL for most of the complexes 
and subcomplexes, overfishing on these complexes and subcomplexes is 
unlikely.
    Comment 8: The Amendment must specify AMs that will be triggered 
when ACLs are reached.
    Response: The NS1 guidelines (74 FR 3178, January 16, 2009) state 
that FMPs should include AMs, which ``are management controls to 
prevent ACLs, including sector-ACLs, from being exceeded, and to 
correct or mitigate overages of the ACL if they occur.'' NMFS believes 
that the Groundfish FMP currently provides for robust inseason 
management measures. Under current practices the Council is presented 
with inseason updates at each of its meetings. Following an evaluation 
of the catch to date and catch projections presented by its advisory 
bodies, the Council makes recommendations to NMFS on regulation changes 
in order to keep catch within the catch limits. However, NMFS notes 
that there is a lack of clarity in the amendment with respect to the 
connection between ACLs and AMs. In its December 27, 2010, letter to 
the Council, NMFS identified this issue and suggested that it should be 
addressed through the development and submission of an additional 
amendment to the FMP.
    Comment 9: NMFS should identify and incorporate a specific list of 
relevant ecological factors into the management of West Coast 
Groundfish and specify how such factors will be used in the 
determination of OY, ACLs, or ACTs.
    Response: NMFS acknowledges that ecological factors can be an 
important consideration in setting MSY and OY levels. In the Response 
to Comment 24 of the NS 1 guidelines NMFS states that ``* * * 
ecological conditions not directly accounted for in the specification 
of MSY can be among the ecological factors considered when setting OY 
below MSY'' (74 FR at 3187, January 16, 2009). The NS1 Guidelines 
describe ACT as an accountability measure that accounts for management 
uncertainty, and does not specifically incorporate ecological concerns.
    Under the FMP, as amended by Amendment 23, ecological factors can 
be a consideration in setting the ACL below the ABC and in setting the 
OY (FMP Section 2.2). The extent of our knowledge on ecological factors 
with respect to choosing between the integrated alternatives is 
considered in the FEIS but our ability to compare these factors with 
respect to the alternatives is extremely limited. The Council and NMFS 
have incorporated ecosystem considerations into management of the 
groundfish fishery in a number of ways (e.g. closed areas that protect 
particularly productive and/or sensitive areas, and consideration of 
relevant ecological factors in stock assessments). See Agenda Item 
J.1.c, Attachment 1, PFMC March 2011 (Assessing Ecosystem Policy 
Principles and Bringing Ecosystem Science into the Pacific Fishery 
Management Council Process). NMFS is actively engaged in developing 
ecosystem information about the California Current ecosystem, and the 
Council is considering development of an Ecosystem Fishery Management 
Plan and incorporating ecosystem factors into the fishery management 
process. See Agenda Item J.1, Ecosystem Fishery Management Plan (PFMC 
March 2011).
    While the ecological factors listed in the comments are relevant, 
at this time the specific elements listed have not been incorporated 
into the FMP and the Council decisionmaking process. Therefore 
requiring that information to be reported in a stock assessment or in 
the determination of OYs, ACLs and ACTs is premature. NMFS agrees that 
ecological factors are an important consideration in setting harvest 
levels for groundfish species. The commenters reference two food web 
models for possible use in considering ecological factors. At this time 
these models have not been evaluated by the SSC or GMT for use. NMFS 
suggests that the commenters bring these models forward to the 
Council's advisory bodies so that they can be evaluated. The groundfish 
stock assessment and review process, which includes procedures for 
assessing new models, is laid out in the Terms of Reference for both 
the groundfish stock assessment and review process and the SSC, which 
can be found at https://www.pcouncil.org/groundfish/stock-assessments/safe-documents/2011-safe-document/.
    Even though the FMP does not contain a specific list of ecological 
factors that must be considered, the FEIS did consider ecological 
factors. Chapter 4 of the FEIS evaluated the impacts of the 
alternatives according to the impacts on fishing mortality, rebuilding 
duration for the overfished species, stock productivity relative to 
rebuilding success, genetic diversity and prey availability.

Overfished Species and Flatfish

    Comment 10: The rebuilding plan for Darkblotched Rockfish is 
inconsistent with the MSA. A TTARGET of 2025 would maintain 
the status quo catch limits that were set in 2007-08 that were based on 
faulty information about darkblotched's resiliency and would extend the 
2009-10 harvest specifications that were invalidated by NRDC v. Locke, 
Case 3:01-cv-00421-JLI. Review of recent catch levels as well as trends 
in the economic health of the fishery reveal that it is possible to 
meet the MSA's conservation priorities by establishing faster 
rebuilding targets and lower harvest levels while accommodating the 
needs of the fishing community. NMFS should adopt a target rebuilding 
date for darkblotched that results in catch levels no higher than 200 
metric tons (mt) per year. The catch level for darkblotched was set at 
200 mt in 2006 even though economic data from both the commercial trawl 
sector and the larger groundfish fishery indicate that revenues in 2006 
continued to rebound from 2002 lows. Therefore, it is reasonable to 
assume that the commercial trawl fishery and associated fishing 
communities can accommodate current catch levels considerably closer of 
200 mt for darkblotched.
    Response: NMFS disagrees with the commenter. The harvest rate being 
implemented by this rule is the most

[[Page 27514]]

conservative harvest rate for darkblotched rockfish since 2005. The 
TTARGET adopted in this final rule does not maintain the 
status quo catch limits set based on faulty information in 2007-08, and 
it does not extend the 2009-10 harvest specifications invalidated by 
NRDC v. Locke. The TTARGET being adopted for darkblotched is 
2025, which corresponds to an SPR of 64.9 percent and an ACL of 298 mt. 
The SPR harvest rate associated with the invalidated darkblotched 
rockfish specifications was 62.1 percent with a TTARGET 
equal to 2028. The final rule implements a TTARGET of 2025, 
which is only 9 years longer than TF=0, and is three years 
earlier than under the 2009-10 harvest specifications. Similarly, the 
SPR harvest rate is more conservative than the harvest rate under the 
2009-10 harvest specifications. Although the ACL this rule implements 
is comparable to the OY during the beginning of the 2009-10 cycle, the 
rebuilding period is shorter and the harvest rate is reduced based on 
the 2009 stock assessment update and the revised rebuilding analyses, 
which are the best scientific information available at this time. In 
2005, steepness (productivity) was estimated at 1.0, and was set at 
0.95. In 2007, a good deal more age data was included in the 
assessment, largely as conditional age-at length compositions, and 
steepness was estimated (using the prior from Dorn's meta-analysis) at 
0.6. That value of steepness was then fixed in the 2007 assessment and 
hence also used in the 2009 update. The SPR chosen following the 2005 
rebuilding analysis, and applied in the 2007-08 harvest specifications 
(the 2007 SPR was 64.1 percent and the 2008 SPR was 60.7 percent), 
corresponded to a TTARGET (median rebuilding year) of 2011, 
which was much earlier than for previous rebuilding analyses, due 
largely to the high value of steepness (and thus high productivity at 
low stock sizes) assumed in the 2005 assessment. Based on the 2007 
rebuilding analysis, the darkblotched rockfish stock was projected to 
recover 19 years later (2030) than anticipated from the 2005 rebuilding 
analysis. This then lead to the adoption by the Pacific Council of a 
new TTARGET equal to 2028 with an SPR of 62.1 percent. 
Accordingly, as mentioned above, the SPR of 64.9 percent being 
implemented by this rule is the most conservative harvest rate for 
darkblotched rockfish since 2005. Moreover, the percent of unfished 
darkblotched rockfish biomass continues to increase toward rebuilding.
    Due to the complexity and interconnectivity of the Pacific 
groundfish fishery, the Council and NMFS follow an integrated or 
holistic approach to rebuilding because it would not be appropriate to 
develop rebuilding plans for each of the overfished species independent 
from the rebuilding plans for the others. The rebuilding groundfish 
species are correlated both biologically and economically. Changes to 
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. In addition, changes in OYs for groundfish species have 
differing economic impacts on West Coast fishing communities. Setting a 
rebuilding strategy for one species requires the rebuilding strategy 
for the other rebuilding species be considered simultaneously. 
Utilizing this approach, it is reasonable to assume that integrated 
Alternative 1, which considered a TTARGET of 2022 and ACLs 
of 222 mt in 2011 and 2012, would have similar biological and socio-
economic impacts to the ACL of 200 mt suggested by the commenter. NMFS 
does not agree that fishing communities can accommodate an ACL closer 
to 200 mt than the ACL in the final rule without suffering severe 
adverse economic impacts. Darkblotched rockfish is currently taken in 
research fisheries, Tribal fisheries, limited entry trawl non-whiting 
fisheries, limited entry trawl whiting fisheries, and limited entry 
fixed-gear fisheries. Darkblotched rockfish are predominantly caught in 
bottom trawls operating on the outer continental shelf and slope north 
of 38[deg] north latitude between 100 and 200 fm. Reductions in the 
darkblotched rockfish ACLs are highly limiting to the trawl fisheries 
because darkblotched rockfish co-occur with the most economically 
important species in the fishery such as slope rockfish, sablefish, 
Pacific whiting, shortspine and longspine thornyheads, and Dover sole. 
Under Alternative 1, trawl opportunities on the slope would be limited 
as the seaward RCA boundaries were moved deeper. The bottom trawl 
fisheries on the continental slope would be restricted year round to a 
seaward RCA boundary of 250 fm.
    If the ACLs for overfished species are too low, it could undermine 
the success of the trawl rationalization program. Economic benefits to 
the IFQ fishery are expected to result from cost reductions and 
increased access to target species that arise from modifications in 
fishing behavior (overfished species avoidance). Individual 
accountability will put pressure on operators to fish in areas with 
lower encounter rates of constraining overfished species, and the 
ability to transfer catch privileges allows the fleet to consolidate to 
fewer, but more profitable vessels as the market directs quota in a 
manner that is more economically efficient. If the darkblotched 
rockfish ACL is too low (Alternative 1)--such that trawl fishers 
perceive slope target fisheries to be risky (high risk of exceeding the 
individual quota pounds) and the fishers limit their fishing 
participation for healthy target species--or if fishers hold quota 
pounds of constraining overfished for sale to other fishers who incur 
overages, they would not be able to develop new methods or strategies 
to avoid catching overfished species.
    The recruitment pattern for darkblotched rockfish is similar to 
that of many rockfish species, with highly variable recruitment from 
year to year adding to the variability in catch accounting between 
years. In addition, the available ACL to the groundfish fishery is 
reduced by the projected catch of darkblotched in incidental open 
access fisheries and non-groundfish fisheries. As another commenter 
pointed out, the incidental catch in non-groundfish fisheries such as 
pink shrimp would be expected to increase as the darkblotched rockfish 
biomass increases, further constraining the groundfish fishery unless 
the ACL allowed for such a rebuilding paradox. NMFS believes that 
setting a TTARGET that would result in a catch level no 
higher than 200 mt has the potential to result in short-term disastrous 
effects on already vulnerable communities.
    As the darkblotched rockfish biomass increases, it will become 
increasingly more difficult to avoid as the stock rebuilds. Unlike the 
constant catch strategy suggested by the commenter, which increasingly 
restricts the fishery as rebuilding occurs and requires ever increasing 
management restrictions to avoid exceeding the ACL, the constant SPR 
strategy allows rebuilding to occur at an increasing rate without 
changing the TTARGET and without drastic swings in 
management measures, which provides management stability to fisheries 
and communities and contributes to economic stability. The 
2009 stock assessment indicates that darkblotched rockfish was at 18.1 
percent of its unfished biomass in 2006 as compared to 27.5 percent in 
2009, showing an increasing trend. The recruitment pattern for 
darkblotched rockfish is similar to that of many rockfish species, with 
highly variable recruitment from year to year. The most recent year of 
2008 shows recruitment closer to those seen in 2003-2005 after very low 
recruitment in 2006 and 2007. Large year to year swings in recruitment

[[Page 27515]]

affect the accuracy of catch projections. As discussed in the FEIS, 
catch models used for the trawl fishery, a catch model based on data 
from the fishery managed under a trip limit structure was used to 
project catch. Although it is the best available information, because 
the trawl fishery is now being managed as a rationalized fishery with 
IFQs for the non-whiting fisheries, catch projections based on fishing 
distribution under a trip limit structure affect the utility of the 
catch model for making projections. In sum, the shorter rebuilding 
period and more conservative harvest rate adopted in this final rule 
rebuild darkblotched rockfish in a time period as short as possible, 
taking into account the statutory factors of the MSA.
    Comment 11: The rebuilding plan for Cowcod is inconsistent with the 
MSA. The estimated cowcod depletion rate in 2009 is 4.5 percent, 
slightly lower than the 4.6 percent rate estimated in the 2007 
assessment, indicating that the cowcod population is failing to rebuild 
as projected, and may actually be in decline. It is possible to rebuild 
cowcod more quickly than the 2071 target proposed by Amendment 16-5, 
and NMFS does not address why a target rebuilding year 11 years later 
than the shortest possible is ``as short as possible'' pursuant to the 
requirements of the MSA. Overall groundfish fishery revenues have 
rebounded substantially since 2002. The updated community vulnerability 
analysis did not rate any fishing communities off the Southern U.S. 
west coast as vulnerable. Historic mortality data for cowcod (which are 
admittedly subject to high levels of uncertainty) indicate that actual 
total catch has varied between as low as .32 mt in 2003, 2.18 mt in 
2004, 1.27 mt in 2005, and 1.18 mt in 2006. Therefore, it is reasonable 
to assume that a catch level of 3 mt for cowcod, which is projected to 
rebuild the species by 2068, would promote the conservation goals of 
the MSA and could be reasonably accommodated by affected fisheries and 
fishing communities. NMFS should adopt a target rebuilding date for 
cowcod that results in catch levels no higher than 3 mt per year.
    Response: NMFS fully considered all public comment and other 
relevant information, and has determined that modifying the proposed 
rule to implement a shorter rebuilding period will not cause severe 
short-term economic consequences to communities. Therefore, a shorter 
rebuilding period for cowcod is more consistent with the requirements 
of the MSA. This final rule implements a rebuilding plan for cowcod 
with a TTARGET of 2068, which corresponds to an SPR of 82.7 
percent and an ACL of 3 mt. The TTARGET of 2068 implemented 
by this rule is only 8 years longer than TF=0. In contrast, 
the proposed rule included a cowcod rebuilding plan with a 
TTARGET of 2071, which corresponds to an SPR of 79 percent 
and an ACL of 4 mt. The TTARGET of 2071 in the proposed rule 
was eleven years longer than TF=0.
    The commentor is incorrect in stating that the cowcod population 
may be in decline. The cowcod stock shows a slow but increasing trend 
in stock biomass. Table ES-6 of the 2009 stock assessment presents a 
summary of recent trends in cowcod exploitation and stock levels from 
the base case model. The commenter is correct that the depletion level 
projected by the 2009 stock assessment is 4.5 percent, however, the 
2009 stock assessment, which is the best available scientific 
information, revises the 2007 stock assessment results and indicates 
that the 2007 biomass was at 4 percent not 4.6 percent as the commenter 
indicated. Therefore, the best available scientific information 
available at this time indicates that Cowcod depletion rate is 
improving and the cowcod population is rebuilding.
    Comment 12: The rebuilding plan for yelloweye is inconsistent with 
the MSA. NMFS' conclusion that rebuilding progress on yelloweye has 
been ``moderate'' is too optimistic. The 2009 rebuilding analysis 
indicates that yelloweye rebuilding is three years behind schedule 
under the status quo harvest rate. This is three years beyond the 
target year of 2084, which was invalidated in NRDC v. Locke. There is a 
wide range of possible harvest limits in the 37 year time span between 
TF=0 and the proposed target year of 2084 that would rebuild 
yelloweye more quickly and still allow for bycatch. NMFS should adopt a 
target rebuilding date for yelloweye that results in catch levels 
between 14-17 mt per year.
    Response: NMFS fully considered all public comment and other 
relevant information, and has determined that modifying the proposed 
rule to implement a shorter rebuilding period will not cause severe 
short-term economic consequences to communities. Therefore, a shorter 
rebuilding period for yelloweye rockfish is more consistent with the 
requirements of the MSA. The range of alternatives considered in the 
EIS for yelloweye was reasonable as further explained in the response 
to comments in the FEIS. This final rule implements a rebuilding plan 
for yelloweye rockfish with a TTARGET of 2074, which 
corresponds to an SPR of 76 percent and an ACL of 17 mt. The 
TTARGET of 2074 implemented by this rule is 10 years before 
the current TTARGET and 27 years longer than TF=0. In 
contrast, the proposed rule included a yelloweye rockfish rebuilding 
plan with a TTARGET of 2084, which corresponds to an SPR of 
72.8 percent and an ACL of 20 mt. The TTARGET of 2084 in the 
proposed rule was 37 years longer than TF=0. As discussed below, NMFS 
determined that an ACL lower than 17 mt would have a disastrous short-
term effect on fishing communities.
    NMFS disagrees with the commenter regarding the rebuilding progress 
of yelloweye rockfish. The 2009 stock assessment shows that yelloweye 
rockfish stock has shown an increasing trend in stock biomass during 
the rebuilding period, increasing from the estimated depletion level of 
16.3 percent of the unfished biomass in 2002 to 20.3 percent in 2009. 
The median year of recovery in the absence of fishing (TF=0) was 
calculated by setting fishing mortality to zero in 2011, and is equal 
to 2047. The value for TMIN, the median year for rebuilding 
to the target level in the absence of fishing since the year of 
declaration (2000) is 2044 (revised downward slightly from 2046 in the 
2007 analysis). Because TMIN is only three years shorter 
than TF=0 in 2011, it indicates that harvest rates during 
this eight-year period have been low enough to have had little effect 
on the stocks rebuilding trajectory.
    Although TTARGETS corresponding to ACLs lower than 17 mt 
were considered, the impacts on the fisheries and communities were 
significantly greater. Small changes to yelloweye rockfish ACLs can 
have disproportionately large effects on the ability of fishers to 
harvest healthy stocks of groundfish, both when considered as part of 
the integrated approach, and when considered in isolation. For the 
recreational fisheries, a yelloweye ACL lower than 17 mt would result 
in northern California recreational seasons that are even shorter than 
the already extremely limited lengths (e.g., three months in the 
Mendocino Management Area). This would include a one and a half month 
season in the Mendocino Management Area if the ACL were at 14 mt. 
Imposing further restrictions due to a lower ACL would cause the 
greatest negative economic impacts to communities north of Point Arena, 
particularly Fort Bragg and Shelter Cove. Under a 14 mt ACL the loss to 
California communities is equivalent to 170,000 fishing trips with an 
estimated revenue of 20 million dollars in expenditures associated with 
these trips (March 2011, Agenda Item H.2.c, CDFG Letter). Those 
dependent

[[Page 27516]]

on the recreational fishery for their incomes would be the most 
affected, though the coastal community as a whole would suffer from the 
loss of expenditures by anglers. In the Oregon recreational fishery, an 
ACL (ACT) less than 17 mt would require shallower depth restrictions, 
decreased bag limits or full fishery closure, on the part of the state 
to prevent adjusted harvest guidelines from being exceeded. This would 
likely cause severe economic impacts to coastal Oregon communities, 
particularly Garibaldi and Gold Beach, which rely heavily on the 
recreational bottomfish and halibut fisheries. With an ACL under 17 mt, 
the Washington recreational management measures may need to be more 
restrictive. More restrictive management measures would negatively 
impact local communities that are dependent on sport fishing. 
Washington's recreational yelloweye impacts are also tied very closely 
to the halibut fishery. The affected communities are mostly remote 
areas that rely on the economic benefits created by recreational 
harvest opportunities.
    In the commercial fisheries, yelloweye rockfish bycatch is also a 
concern for fixed gear longline vessels targeting sablefish north of 
40[deg]10'. The nearshore fishery in many communities serves primarily 
specialty ``live-fish'' markets. For example, the Brookings port group 
(southern Oregon) provides more live-fish landings than any other port 
group along the U.S. west coast. Because the fish buyers are different 
for this fishery than those for other commercial fisheries, severely 
restricting the fishery could influence the primary live-fish buyers in 
some of these specialized ports to leave, which could put an end to 
live-fish deliveries for these specialized fishing communities. Many of 
the affected ports lack the infrastructure to compensate for fish 
buyers leaving the area. The TTARGET of 2074 and ACL of 17 
mt implemented by this rule are projected to rebuild yelloweye rockfish 
a full decade sooner than the previous rebuilding time period, while 
avoiding severe short-term adverse economic impacts to fishing 
communities.
    Comment 13: NMFS received 5 comments in support of the Council's 
final preferred yelloweye rockfish ACL of 20 mt and ACT of 17 mt. The 
comments in support were from the Washington Department of Fish and 
Wildlife (WDFW), Oregon Department of Fish and Wildlife (ODFW), 
California Department of Fish and Game (CDFG) and two comments from the 
public. These commenters also stated that setting a yelloweye ACL lower 
than 17 mt would add risk to communities that were unjustified by the 
conservation benefits associated with a lower ACL.
    Response: For a detailed description of the basis for the final ACL 
value of 17 mt implemented in this rule refer to the previous comment 
above. The Council recommended a 20 mt ACL with an ACT of 17 mt for 
yelloweye. The Council recommended using an ACT to address the 
uncertainty in accurately monitoring recreational fishery cat