Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures
PDF Version (10 pp, 451K, About PDF)
[Federal Register: May 5, 2009 (Volume 74, Number 85)]
[Rules and Regulations]
[Page 20620-20629]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my09-19]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 http://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 http://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 http://www.gpoaccess.gov/fr/index.html.
Background information and documents are available at the NMFS
Northwest Region Web site at http://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.
• For the reasons set out in the preamble, 50 CFR part 660 is amended as
follows:
PART 660--FISHERIES OFF WEST COAST STATES
• 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.
• 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.
* * * * *
• 3. In part 660, subpart G, Table 1a is revised to read as follows:
BILLING CODE 3510-22-P
[[Page 20626]]
[GRAPHIC] [TIFF OMITTED] TR05MY09.007
[[Page 20627]]
[GRAPHIC] [TIFF OMITTED] TR05MY09.008
[[Page 20628]]
[GRAPHIC] [TIFF OMITTED] TR05MY09.009
* * * * *
• 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
[[Page 20629]]
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]
BILLING CODE 3510-22-C
![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090512083925im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}