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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 051014263-6028-03; I.D. 120805A]
          - RIN 0648-AU00

# AGENCY:

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

# ACTION:

Temporary rule; extension.

# SUMMARY:

This action extends a temporary rule, now in effect, that establishes the 2006 optimum yield (OY) for darkblotched rockfish caught in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California.  This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), is intended to protect darkblotched rockfish, an overfished groundfish species.

# DATES:

The expiration date of the temporary rule (interim darkblotched rockfish OY) published on February 17, 2006 (71 FR 8489), effective March 1, 2006, through August 27, 2006, is extended through December 31, 2006.

# ADDRESSES:

Copies of the Final Environmental Impact Statement  for the harvest specifications and management measures for the 2005-2006 groundfish fisheries 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 the Record of Decision and final regulatory flexibility analysis for the 2005-2006 groundfish harvest specifications, and the Small Entity Compliance Guide for the 2006 groundfish harvest specifications are available from D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115-0070.

# FOR FURTHER INFORMATION CONTACT:

                        Jamie Goen (Northwest Region, NMFS), phone:  206-526-6140; fax:  206-526-6736; and e-mail:                         *jamie.goen@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This                     **Federal Register**                     document is available on the Government Printing Office's website at:                     *www.gpoaccess.gov/​fr/​index.html*.                

                    Background information and documents are available at the NMFS Northwest Region website at:                     *www.nwr.noaa.gov*                     and at the Pacific Council's website at:                     *www.pcouncil.org*.                

## Background

                    The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations, part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California.  Groundfish specifications and management measures are developed by the Pacific Council, and are implemented by NMFS.  The specifications and management measures for 2005-2006 were codified in the CFR (50 CFR part 660, subpart G).  They were published in the                     **Federal Register**                     as a proposed rule on September 21, 2004 (69 FR 56550), and as a final rule on December 23, 2004 (69 FR 77012).  The final rule was subsequently amended on March 18, 2005 (70 FR 13118); March 30, 2005 (70 FR 16145); April 19, 2005 (70 FR 20304); May 3, 2005 (70 FR 22808); May 4, 2005 (70 FR 23040); May 5, 2005 (70 FR 23804); May 16, 2005 (70 FR 25789); May 19, 2005 (70 FR 28852); July 5, 2005 (70 FR 38596); August 22, 2005 (70 FR 48897); August 31, 2005 (70 FR 51682); October 5, 2005 (70 FR 58066); October 20, 2005 (70 FR 61063); October 24, 2005 (70 FR 61393); November 1, 2005 (70 FR 65861); and December 5, 2005 (70 FR 72385).  Longer-term changes to the 2006 specifications and management measures were published in the                     **Federal Register**                     as a proposed rule on December 19, 2005 (70 FR 75115) and as a final rule on February 17, 2006 (71 FR 8489).  The final rule was subsequently amended on March 27, 2006 (71 FR 10545), April 11, 2006 (71 FR 18227), April 26, 2006 (71 FR 24601), May 11, 2006 (71 FR 27408), May 22, 2006 (71 FR 29257), June 1, 2006 (71 FR 31104), and July 3, 2006 (71 FR 37839).                

Acceptable biological catches (ABCs) and OYs are established for each year.  Management measures are established at the start of the biennial period, and are adjusted throughout the biennial management period, to keep harvest within the OYs.  At the Pacific Council's October 31 - November 4, 2005, meeting in San Diego, CA, the Pacific Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommended a reduction of the 2006 darkblotched rockfish OY to 200 mt for March through December 2006.  The management measures for March through December 2006 were proposed on December 19, 2005 (70 FR 75115), and implemented via the final rule published on February 17, 2006 (71 FR 8489).

                    The 2006 darkblotched rockfish OY of 200 mt is an interim measure pursuant to section 305(c) of the Magnuson-Stevens Act, in effect while the rebuilding plan (now referred to as Amendment 16-4) is being developed and implemented.  Under the provisions of section 305(c)(3) of the Magnuson-Stevens Act, interim measures shall remain in effect for not more than 180 days after the date of publication, and may be extended by publication in the                     **Federal Register**                     for an additional period of not more than 180 days, provided the public has had an opportunity to comment on the interim measures, and the Council is actively preparing a plan amendment to address rebuilding on a permanent basis.  The public has been provided an opportunity to comment on the interim measures in the proposed rule (70 FR 75115, December 19, 2005), and the Council is actively working on an FMP amendment, Amendment 16-4, with the 2007-2008 specifications and management measures process.  The proposed rule for Amendment 16-4 and the 2007-2008 specifications and management measures is expected to publish in September 2006 with a final rule expected to publish in November 2006, and become effective January 1, 2007.  In addition, the Court's Order in                     *Natural Resources Defense Council (NRDC)*                     v.                     *NMFS*                    , 421 F.3d 872 (9th                     Cir. 2005) dated December 8, 2005, requires NMFS to implement a darkblotch rockfish quota for the entire 2006 fishing year pursuant to section 305(c).  Because the Council is continuing work on Amendment 16-4 and this interim measure expires on August 27, 2006, NMFS is extending the darkblotched rockfish OY beyond the first 180-day period.                

                    During the comment period on the proposed rule to implement changes to the 2006 Pacific Coast groundfish fishery specifications and management measures (70 FR 75115, December 19, 2005), NMFS received two comments on the interim measure for the darkblotched rockfish OY.  Comment 2 and Comment 6, as published in the “Comments and Responses” section of the final rule (71 FR 8489, February 17, 2006), show the comments received and NMFS response to those comments.                           ( print page 48825)                         These comments and responses are republished below.                

*Comment 2:*                     One commenter supports the decrease in the darkblotched rockfish OY for 2006 from 294 mt to 200 mt.  The commenter notes that the latest stock assessment shows that darkblotched rockfish is rebuilding more quickly than originally projected and, therefore, the OY could be set higher without demonstrably slowing the rebuilding progress.  However, the commenter supports NMFS effort to rebuild quicker than required by law, as was done with lingcod, while minimizing impacts on local coastal communities, including fishermen and processors.                

Another commenter believes that the rule proposes to set an OY that is higher than the lowest level possible and is thereby violating the Magnuson-Stevens Act, which requires overfished species to be rebuilt as quickly as possible.  In the 2005-2006 Pacific Coast Groundfish Specifications and Management Measures  Environmental Impact Statement (hereafter, 2005-2006 Specs EIS), NMFS projected total fishing mortality of less than 100 mt for darkblotched rockfish.  The commenter believes that NMFS failed to consider the lowest possible fishing level for darkblotched rockfish because an OY at or below 100 mt was not adopted.

A third commenter suggested that all species should have their quotas cut by 50 percent this year and 10 percent each succeeding year.

*Response:*                     As stated in the proposed rule, this action to adjust the 2006 darkblotched rockfish OY from 294 mt to 200 mt is an interim measure to decrease the OY within the current rebuilding plan until a revised rebuilding plan is developed.  Revising the rebuilding plan requires extensive analysis to consider the interaction of the rebuilding plans for all overfished species, to determine the needs of the fishing communities, and to allow substantial public participation. Allowable harvest levels for all overfished groundfish species for 2007 and beyond will be based on new rebuilding plans intended to meet the court's decision in                     *NRDC*                     v.                     *NMFS*                    , 421 F.3d 872 (9th                     Cir. 2005).  The Pacific Council intends to review, re-analyze, and revise rebuilding plans via Amendment 16-4 to the FMP, which will be developed concurrently with the 2007-2008 groundfish harvest specifications and management measures.  These revised rebuilding plans in Amendment 16-4 will determine the OYs selected for overfished groundfish species, including darkblotched rockfish, in 2007 and beyond.                

At the Pacific Council's October 30 - November 4, 2005, meeting, in order to determine if interim action was appropriate, NMFS and the Pacific Council analyzed the effects of a range of 2006 darkblotched rockfish OYs, from 0-696 mt, on the time to rebuild the darkblotched stock.  The Pacific Council's Groundfish Management Team estimated:  with a darkblotched rockfish OY of zero, the stock would be rebuilt by July 2009; with an OY of 200 mt, the stock would be rebuilt by March 2010; and with the previously established OY of 294 mt, the stock would be rebuilt by July 2010.  Since that meeting, NMFS analyzed the estimated gains in rebuilding time that could occur were the 2006 OY set at 100 mt, and found that a 100 mt OY could result in the stock being rebuilt by 3-6 months prior to the March 2010 date associated with a 200 mt OY.  As discussed below, this small gain in rebuilding time would result in large economic losses to the fishing industry and coastal communities.  Therefore, NMFS concurs with the Pacific Council's recommendation of a 200 mt OY for darkblotched rockfish in 2006 as an appropriately conservative interim OY intended to accommodate some targeting of the more healthy groundfish stocks that co-occur with darkblotched rockfish.

Populations of the overfished rockfish species are found along the entire length of the U.S. West Coast.  Because of their varied biological characteristics, overfished rockfish are caught in a broad range of fisheries, tribal and non-tribal, commercial and recreational.  NMFS, its partner state and tribal agencies, and the Pacific Council have focused their efforts to protect and rebuild overfished groundfish species on minimizing or eliminating directed harvest and minimizing incidental catch of overfished stocks.  Overfished species are caught in all of the groundfish fisheries coastwide not because they are targeted, but because they co-occur with the more abundant stocks the fisheries do target.  For example, yelloweye rockfish is often found at similar depths to and caught in common with Pacific halibut, an abundant flatfish targeted with hook-and-line gear in the recreational and commercial fisheries.  Fisheries for target species must then be constrained in some way in order to rebuild the non-target overfished species, usually with:  reductions in allowable landings levels of target species, reductions in allowable fishing area so as to minimize fishing in areas where overfished species commonly occur, reductions in allowable duration of fishing seasons, or alterations in fishing gear that either prevent overfished species from being caught by the gear or expel overfished species from the gear.  All of these tools are used either individually or in combination for West Coast fisheries that either target groundfish directly, or take groundfish incidentally to their non-groundfish fishing operations.  Therefore, when NMFS analyzes revenues earned or sacrificed in order to rebuild overfished species at slower or faster rates, the agency is looking at revenues from the more healthy target stocks, not from the overfished species themselves.

In setting the 2006 darkblotched rockfish OY, NMFS considered both the biological constraints of the stock in terms of its ability to rebuild by particular dates, and the economic impacts of rebuilding at different rates on coastal fishing communities.  NMFS particularly considered the effect of reducing the 2006 darkblotched rockfish OY to 100 mt.

The majority of darkblotched rockfish landed are caught with limited entry bottom trawl gear (99.6 percent in 2004), incidentally to slope fisheries for groundfish.  Because the groundfish fishery has been managed under rebuilding measures since 2000, NMFS reviewed the effect of a 100-mt darkblotched rockfish OY in 2006 both from the perspective of incremental changes to the fishery from current harvests and associated revenue, and from the perspective of cumulative changes that have been ongoing within the fishery from the past several years.  In terms of inflation-adjusted dollars, since 2001, real ex-vessel revenues from bottom trawl vessels have been less than half of what they were in 1996.  Many vessels, processors, shore-based infrastructure, and support businesses were built to service a fishery that generated revenues and landings that are larger than what the current fishery generates.  This means that current annual revenues are less able to support the fixed costs of maintaining the structures built to support a more productive industry.  Because revenues have declined substantially from this period of higher productivity, businesses are less able to withstand further declines in revenue.  In other words, the effect upon fishers, processors, support businesses, and communities of reducing ex-vessel revenues is likely to be greater when the fishery annually generates $20 million compared to a reduction when the fishery annually generates $40 million.

                    NMFS analyzed the effects of a 100-mt 2006 darkblotched rockfish OY from                           ( print page 48826)                        the base of management measures implemented in this rule, assuming available darkblotched rockfish incidental catch to be cut to that 100-mt level.  Using ex-vessel prices from 2005, 100 mt of darkblotched rockfish translates into roughly $94,000 to $100,000 in ex-vessel revenue from landings of darkblotched rockfish itself.  However, reducing the catch of species that co-occur with darkblotched rockfish to stay within a 100 mt OY in 2006 would mean a reduction in ex-vessel revenues from co-occurring slope species by several million dollars.  Ex-vessel revenues should only be viewed as an indicator of economic impacts to the vessels, their crew, and owners.  Taking into account the additional impact to processors, support businesses, and West Coast communities means an additional effect that is roughly 20-40 percent higher than the ex-vessel revenue impact.                

For example, preliminary catch estimates from 2005 show that 100 mt of darkblotched rockfish had been caught incidentally to the slope trawl fishery by late August.  Had the portion of the fishery that catches darkblotched rockfish closed upon attainment of 100 mt of darkblotched rockfish, the cost to the bottom trawl fleet would have been approximately $3.5 million in foregone ex-vessel revenue, or approximately 18 percent of total bottom trawl ex-vessel revenue in the area north of 40°10′ N. lat. in 2005.  In comparison, approximately 100 mt of darkblotched rockfish had been caught by mid-June in 2004, and had the portion of the bottom trawl fishery that catches darkblotched rockfish been closed upon attainment of 100 mt of darkblotched rockfish, approximately $6.5 million in ex-vessel revenues would have been lost, or approximately 38 percent of total bottom trawl ex-vessel revenues in the area north of 40°10′ N. lat. for that year.

Limited entry bottom trawl regulations implemented in this final rule in place for 2006 are designed to distribute catch of target species more evenly throughout the year.  In 2005, catch was distributed more heavily toward the early part of the year.  Based on analysis applying regulations implemented by this rule to the fishery and incidental catch patterns, NMFS expects that the fishery will take 100 mt of darkblotched rockfish by August 2006.  If the slope trawl fishery were closed in August 2006, the bottom trawl fleet would lose 25-36 percent of total bottom trawl ex-vessel revenues from the more abundant species that could be taken during the remaining months in the area north of 40°10′ N. lat.  Based on total exvessel revenues in that area in the past several years, this is likely to mean a loss of $4.2 to $6.5 million just in ex-vessel revenues in that area.

If NMFS were to structure the 2006 season toward both  maintaining a year round bottom trawl fishery and attaining the highest level of ex-vessel revenues without exceeding 100 mt of darkblotched rockfish, we estimate the cost to the fleet would be a loss of $3.2 to $6.0 million in ex-vessel revenues.  This somewhat lower loss is in comparison to the $4.2 to $6.5 million loss that we expect would occur if the bottom trawl fishery were to close on attainment of 100 mt of darkblotched rockfish.  Achieving a year-round bottom trawl fishery with a 100 mt darkblotched OY for 2006 would require inseason changes to regulations in May 2006.  For purposes of analysis, NMFS assumed that the regulatory changes under these conditions would be designed to keep the November-December deepwater petrale sole fishery, to continue to allow harvest of thornyheads in waters deeper than where darkblotched rockfish occur, and to allow harvest of sablefish and Dover sole scheduled by management measures in this final rule during November-December in waters deeper than where darkblotched rockfish occur.  These declines in landings of the more abundant stocks that co-occur with darkblotched rockfish and in associated ex-vessel revenue would most severely affect the vessels, processing plants, and ports with reliance upon and investment in the trawl slope groundfish fisheries north of 40°10′ N. lat.  NMFS expects that the following ports would be most vulnerable to vessel bankruptcy and forfeitures and processing plant closures, if the darkblotched OY was set to 100 mt in 2006:   Blaine, Bellingham, Neah Bay, and Westport, Washington; Astoria, Newport, Coos Bay, and Brookings, Oregon; and Eureka, and Crescent City, California. Within these ports, the bottom trawl fishery would be most affected. In 2005 the bottom trawl fishery in these ports generated approximately $18 million in ex-vessel revenue compared with a combined $32 million for bottom and midwater trawl and $46 million for all groundfish in these ports.

As stated above, NMFS and the Pacific Council intend to review and revise all of the rebuilding plans in advance of the 2007-2008 fishing period.  For 2006, NMFS continues to support a darkblotched rockfish OY of 200 mt.  The difference in rebuilding times between setting an OY for 2006 at 200 mt versus 100 mt, and maintaining darkblotched mortality at the corresponding spawner per recruit harvest rate each year until the stock is rebuilt, is less than half a year, while the estimated economic impacts from this reduction on the fishing industry and coastal communities is on the order of several millions of dollars lost each year until the stock is rebuilt.  Therefore, NMFS does not support reducing the darkblotched OY below 200 mt in 2006.

NMFS also disagrees with the second commenter's statement that the agency is violating the Magnuson-Stevens Act.  This interim reduction in the OY will prevent potential mortality that could occur if the current OY of 294 mt remains in place.  This interim measure is consistent with section 305(c) of the Magnuson-Stevens Act in establishing interim measures until the revised long-term rebuilding plan is developed through the Council process and implemented by NMFS.  This interim measure is not intended to be the long-term rebuilding OY; however, as explained above, this OY level provides for continued rebuilding through 2006.

Finally, the third commenter suggested that harvest levels for all species be cut by one-half in 2006 and by 10 percent for each subsequent year.  The darkblotched rockfish OY for 2006 has been cut via this action by approximately one-third from the 2006 OY NMFS had implemented on January 1, 2005 (69 FR 77012, December 23, 2004).  The proposed rule for this action did not consider revisions to 2006 harvest levels for species other than darkblotched rockfish.  The Pacific Council and its collaborating agencies are developing harvest level and management measure recommendations for 2007-2008 via a public process during spring 2006.  NMFS expects to propose a rule for public review and comment on the 2007-2008 harvest specifications and management measures and the new rebuilding plans for overfished species in early fall 2006.

*Comment 6:*                     NMFS did not consider an adequate range of alternatives to the 2006 darkblotched rockfish OY, violating NEPA.                

*Response:*                     As stated in the proposed rule for this action (70 FR 75115, December 19, 2005), NMFS considered a variety of potential 2006 OYs, ranging from 0-696 mt.  In addition, a 200-mt OY for darkblotched rockfish is within the range of alternatives analyzed in the 2005-2006 Specs EIS, the EIS for Amendment 16-2, within the parameters of the darkblotched rockfish stock assessment and rebuilding analysis adopted by the Council in 2005, and within the parameters of the rebuilding plan adopted under Amendment 16-2, which implemented                           ( print page 48827)                        rebuilding plans for darkblotched rockfish and other overfished species.  NMFS took into account the most recent darkblotched rockfish stock assessment and rebuilding analysis, the rebuilding plan, and the darkblotched OYs analyzed in the 2005-2006 Specs EIS.  Therefore, NMFS did consider an adequate range of alternatives for darkblotched rockfish and did not violate NEPA.  To reiterate what NMFS had stated in the proposed rule (70 FR 75115, December 19, 2005), the intent of the adjusted 2006 darkblotched OY (200 mt) is an interim measure while NMFS develops a revised rebuilding plan for darkblotched rockfish.  The revised rebuilding plan and OYs for 2007-2008, which will be based on a new stock assessment for darkblotched rockfish completed in 2005, will be analyzed in an EIS being drafted in 2006.                

## Classification

                    The Assistant Administrator for Fisheries, NOAA (AA,) has determined that this extension is needed to maintain the lower darkblotched rockfish OY of 200 mt for the remainder of 2006, as an interim rebuilding measure for darkblotched rockfish, an overfished species.  The interim 2006 darkblotched rockfish OY is in response to a district court order addressing the court of appeals ruling in                     *NRDC*                     v.                     *NMFS*                    , 421 F.3d 872 (9th                     Cir. 2005).  NMFS is currently developing a revised rebuilding plan for darkblotched rockfish through Amendment 16-4 and the 2007-2008 groundfish specifications and management measures process.  The proposed rule for Amendment 16-4 and the 2007-2008 specifications and management measures is expected to publish in September 2006 with a final rule expected to publish in November 2006, with an effective date of January 1, 2007.  Accordingly, the AA is extending the expiration date of this temporary rule through December 31, 2006, after which the revised darkblotched rockfish rebuilding plan and corresponding OY will become effective for 2007 and beyond.                

This action continues interim measures implemented March 1, 2006 (71 FR 8489, February 17, 2006), for 180 days beyond the current expiration date of August 27, 2006, or until December 31, 2006, whichever is sooner, because the conditions prompting the initial interim measures still remain.  The public was provided with the opportunity to submit public comment on these measures in the rule published on February 17, 2006, and those comments and responses are repeated in the preamble to this action.  Therefore, the AA finds that it would be impracticable and contrary to the public interest to delay the extension of these measures by providing additional opportunities for public comment, and finds good cause to waive additional public comments under 5 U.S.C. 553(b)(B).

For these same reasons, the AA finds good cause to waive the 30-day delayed effectiveness provision of the Administrative Procedures Act pursuant to 5 U.S.C. 553 (d)(3).

In accordance with Executive Order 13175, this temporary rule was developed after meaningful consultation and collaboration with the tribal representative on the Pacific Council and tribal officials from the tribes affected by this action.  Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.  The tribal representative on the Council made a motion to adopt the management measures in this final rule that would affect tribal fishery participants, which was passed by the Council.

This temporary rule has been determined to be not significant for purposes of Executive Order 12866.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian fisheries

Dated:  August 16, 2006.

Samuel D. Rauch, III

Deputy Assistant Administrator for Regulatory Programs, 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 continues to read as follows: 

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

2.  In part 660, subpart G, Table 2a and Table 2b are revised to read as follows: 
      ( print page 48828)          ( print page 48829)          ( print page 48830)          ( print page 48831)          ( print page 48832)          ( print page 48833)          ( print page 48834)          ( print page 48835)          ( print page 48836)          ( print page 48837)    

BILLING CODE 3510-22-S

[FR Doc. 06-7072 Filed 8-21-06; 8:45 am]

BILLING CODE 3510-22-C