Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Rules and Regulations 27759 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

Dated: May 3, 2007. 

David I. Maurstad, 

Federal Insurance Administrator of the 

National Flood Insurance Program, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. 07–2385 Filed 5–16–07; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 070510101–7101–01] 

RIN 0648–AV57 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; a 

Temporary Rule 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; emergency 

action; request for comments. 

SUMMARY: NMFS publishes a temporary 

rule to prohibit any vessel from 

participating in either the mothership, 

catcher-processor or shoreside delivery 

sector of the directed Pacific whiting 

(whiting) fishery off the West Coast in 

2007 if it does not have a history of 

sector-specific participation in the 

whiting fishery between January 1, 

1997, and January 1, 2007. This rule is 

intended to prevent serious 

conservation and management problems 

that could be caused by new entrants in 

2007 and to maintain the status quo 

while the Pacific Fishery Management 

Council (Council) addresses the issue of 

increased effort in the whiting fishery 

through an amendment to the Pacific 

Groundfish Fishery Management Plan 

(FMP) for the long term. 

DATES: The amendments in this rule are 

effective May 14, 2007 through 

November 13, 2007, except for 

amendments to §§ 660.333 and 660.335, 

which are effective May 14, 2007. 

Comments must be received by June 

18, 2007. 

ADDRESSES: Comments on the 

management measures and the related 

environmental assessment (EA) may be 

sent to Frank Lockhart, Assistant 

Regional Administrator for Sustainable 

Fisheries, Northwest Region, NMFS, 

7600 Sand Point Way NE., Seattle, WA 

98115–0070, fax: 206–526–6376. 

Comments may be submitted via 

e-mail at 

Whiting.emergencyrule2007@noaa.gov 

or at the Federal e-Rulemaking Portal: 

http://www.Regulations.gov. 

Copies of the FONSI and its 

supporting EA and other documents 

cited in this document are available 

from Frank Lockhart at the address 

Assistant Regional Administrator for 

Sustainable Fisheries, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE., Seattle, WA 98115–0070. 

Information presented by the Council 

for this temporary rule is available for 

public review during business hours at 

the office of the Council at 7700 NE 

Ambassador Place, Portland, OR 97220, 

phone: 503–820–2280. Copies of 

additional reports or testimony 

referenced in this document may also be 

obtained from the Council. 

FOR FURTHER INFORMATION: Frank 

Lockhart (Northwest Region, NMFS), 

phone: 206–526–6142; fax: 206–526–

6736) and e-mail: 

Frank.Lockhart@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

The temporary rule also is accessible 

via the Internet at the Office of the 

Federal Register’s Web site at http:// 

www.gpoaccess.gov/fr/index.html. 

Background information and 

documents, including the EA, are 

available at the Council’s Web site at 

http://pcouncil.org. 

Background 

The whiting fishery off the West Coast 

is managed under the Groundfish FMP 

prepared by the Council and approved 

by the Secretary of Commerce under the 

Magnuson-Stevens Act. The Council has 

adopted a formal process through 

which, every two years, it establishes 

allowable catches and associated fishery 

conservation and management measures 

for most of the groundfish fishery 

sectors for a biennial management cycle. 

The whiting fishery is managed 

somewhat differently because there is 

an annual stock assessment on which 

the Council bases an annual 

determination of the U.S. optimum 

yield (OY) and the sub-quotas of the 

U.S. OY. Beginning in 1997, the Council 

makes annual allocations of the U.S. OY 

available to each of three directed 

fishing sectors: Mothership, catcherprocessor, and shoreside delivery. 

Further, the directed whiting fishery has 

a distinct seasonal structure, with the 

primary season start dates for each of 

the three commercial sectors being the 

same since 1997. The primary seasons 

for the non-tribal catcher/processor and 

mothership sectors begins May 15. The 

shoreside primary season in most of the 

Eureka statistical area (between 42° 

north latitude (N. lat.) and 40°30′ N. lat.) 

begins on April 1, and the fishery south 

of 40°30′ N. lat. begins April 15. The 

Pacific whiting shoreside fishery north 

of 42° N. lat. begins on June 15. No more 

than five percent of the shore-based 

sector allocation may be taken in the 

early season fishery off California before 

the primary season north of 42° N. lat. 

opens on June 15. This is intended to 

ensure an opportunity for all sectors of 

the shoreside industry to have fair 

opportunity to engage in the fishery 

when fish are available to them without 

excessive risk that any one area will 

receive disproportionately large 

opportunities. It also supports efforts to 

minimize bycatch of rockfish and 

salmon. 

The current management regime with 

specific sector allocations and 

differences in area and sector season 

start dates was first implemented for the 

1997 fishery (Federal Register: May 20, 

1997 (Volume 62, Number 97)). At that 

time, the benefits of the sector 

allocations were to: Reduce the 

uncertainty of the amounts available for 

each sector, make the fishery easier to 

monitor, and eliminate the ‘‘first-comefirst-serve’’ derby style incentives in the 

fishery associated with the ‘‘no-action’’

alternative as separate allocations 

encourage each sector to operate at a 

more leisurely and safe pace. By 

reducing the race for fish, separate 

sector allocations would provide greater 

incentives for vessels to move to other 

fishing grounds if necessary to lower 

bycatch levels, particularly of yellowtail 

rockfish and salmon. In addition, with 

separate allocations, each sector would 

have greater accountability and 

opportunity to minimize bycatch while 

providing each sector the flexibility of 

starting at different times without losing 

any competitive advantage. It also 

supported efforts to minimize bycatch of 

rockfish and salmon. 

Since 1997, when sector specific 

allocations were made, the fishery has 

been fairly stable except for a few recent 

instances where additional rules had to 

be put in place to protect overfished 

species (2004) and endangered salmon 

(2005). As in many fisheries, when the 

fishery is stable, most of the participants 

know each other and have a shared 

interest in maintaining a stable 

situation. In this instance, cooperation 

includes a common interest in ensuring 

that bycatch is limited because 

excessive bycatch could close the 

fishery before the whiting quota is 

reached. Therefore, there is frequent 

sharing of information to ensure that 


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27760 Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Rules and Regulations 

areas of high bycatch rates are known 

and avoided. This communication 

happens throughout the season but is 

especially crucial early in the season 

when the target species (whiting) and 

the sensitive bycatch species (overfished 

rockfish and salmon) are highly mobile. 

This communication allows fishing to 

be prosecuted in areas with high 

probability of large whiting catches with 

low bycatch. In turn, this has provided 

the directed whiting fishery with a long 

period to pursue the fishery and kept 

whiting vessels from engaging in other 

groundfish fishing sectors that were 

under severe economic stress. These are 

all benefits related to the enhanced 

communication among fishermen 

within a stable fishery. 

In addition, keeping shoreside 

processing facilities open for longer 

periods also has helped maintain 

employment opportunities for many 

who otherwise would have been 

displaced by the severe cutbacks the 

Council had made in other groundfish 

fishery sectors to prevent overfishing 

and achieve rebuilding of overfished 

rockfish stocks. There is a further 

benefit to whiting fishers and 

processors, as the quality of the whiting 

is much better later in the season 

because the fish had regained weight 

lost during the spawning season. 

Finally, by shifting whiting fishing to 

later in the season, and through other 

industry voluntary actions and 

communications, the industry was able 

to reduce its likelihood of high bycatch 

of overfished rockfish and salmon. 

In 2006, however, there was several 

shifts in fishery conditions that led to 

Council concern about the potential for 

major disruptions in the whiting fishery 

and related non-whiting groundfish 

fisheries. There was a significant 

increase in the ex-vessel price for 

whiting. This attracted several new 

vessels to the whiting shoreside fishery 

in 2006. Second, as rationalization of 

the Alaska pollock fishery was 

achieved, some vessels, including some 

American Fisheries Act-qualified 

vessels (AFA vessels), found they could 

engage in fishing for whiting off the 

West Coast in the spring and early 

summer and then shift to Alaska to take 

their shares of pollock later in the 

summer when Alaskan fishing 

conditions were more favorable. Among 

the new entries to the whiting fishery 

were several AFA vessels. The entry of 

new vessels to the whiting fishery 

resulted in achievement of the whiting 

harvest limits earlier in the year in 2006 

than in 2005 and an earlier closure than 

anticipated of the shoreside sector, 

adversely affecting processors as well as 

fishers. The Council understood that 

there was the prospect of additional 

entry of AFA vessels in 2007, as well as 

perhaps additional other vessels in the 

groundfish fishery. 

The Council originally considered the 

issue of limiting new vessel entry to the 

whiting fishery in September 2006. At 

that time, the Council recommended 

that NMFS implement an emergency 

rule to prevent new entry of certain, but 

not all, vessels into the whiting fishery 

for the 2007 season, as well as prohibit 

certain vessels that participated in the 

2006 season. The Council stated its 

belief that the conservation problems 

that would arise from an accelerated 

‘‘race for fish’’ if certain AFA vessels 

were allowed to remain in the fishery, 

or if additional AFA vessels were 

allowed to enter the fishery. The 

prospect of more participation was 

alarming to the Council, which was 

concerned that additional vessels would 

result in an accelerated ‘‘race for fish,’’

with increased harvest rates for whiting. 

Increased harvest rates, especially if the 

new vessels are of larger capacity or 

piloted by masters unfamiliar with the 

fishery, could lead to greater (and 

potentially disastrous) bycatch of 

overfished species of rockfish. In 

addition, the Council was advised by 

current whiting fishery participants that 

this accelerated race for fish would 

likely lead to higher levels of fishing 

earlier in the season by the at-sea 

portion (i.e., motherships and catcher/ 

processors) of the fishery; such an 

occurrence could result in higher 

bycatch of endangered or threatened 

salmon as bycatch rates are documented 

to be higher in the spring. The Council 

concluded that serious conservation and 

management problems would result 

from this accelerated ‘‘race for fish’’

caused by new entry of AFA vessels to 

the fishery. The Council also noted a 

concern was that new entry of AFA 

vessels could result in early 

achievement of the U.S. directed harvest 

quotas, leaving West Coast-based vessels 

facing no fishing or very limited fishing 

while the AFA vessels could return to 

the rationalized pollock fisheries in 

which they had an interest. However, 

the Council proposal would have 

prohibited only certain AFA vessels 

from entry to the fishery for the fist time 

in 2007, and would have removed from 

the fishery only AFA vessels that had 

participated for the first time in 2006. 

The Council’s recommendation would 

not have prevented additional non-AFA 

vessels from entering the fishery. 

In a letter dated January 11, 2007, the 

Northwest Regional Administrator (RA), 

NMFS, notified the Council that he 

denied its request for an emergency 

rule. He noted that the Council’s action 

was intended to address actual or 

potential harm to West Coast fishers 

from the AFA, but that the evidence 

they presented to indicate harm (i.e., an 

earlier closure of the whiting fishery in 

2006 than in 2005) was due to new 

participation by both AFA vessels and 

non-AFA vessels. While acknowledging 

that new market conditions were likely 

to attract additional vessels, he pointed 

out that the proposed action would have 

denied new entry to a selected category 

of vessels (i.e., AFA vessels) but not all 

vessels. The RA noted that the 

guidelines for the use of emergency 

rules call for use of notice-and-comment 

procedures when there are controversial 

actions with serious economic effects, 

especially when the decision is largely 

related to allocation and not 

conservation. Further, the Council’s 

remedy would not have fully addressed 

the valid conservation concerns raised 

by the Council. Therefore, the proposal, 

as with other allocation decisions, 

would more appropriately be handled 

through the Council’s full rulemaking 

process even if there were valid 

conservation concerns. 

The RA subsequently advised the 

Council on February 13, 2007, that if it 

were to submit a proposal that dealt 

more fully with the issue of 

conservation risks and management 

problems due to potential new entry of 

any new vessels into the directed 

whiting fishery, NMFS would review 

that proposal on its own merits. NMFS 

would continue to be concerned if the 

request based the proposed action on 

the AFA rather than on the MagnusonStevens Act. 

The Council discussed the issue at its 

meeting March 9, 2007, including the 

history of the issue, its earlier action, 

NMFS’ rejection and indication of a 

possible remedy, and alternatives 

available to the Council. There were 

four new pieces of information 

presented at the Council meeting that 

exacerbated their concern about an 

increased race for fish. First, the price 

for whiting continues to increase to 

unprecedented levels. Ex-vessel prices 

increased from $77 per ton in 2004 to 

$137 per ton in 2006—nearly doubling 

since 2004 and increasing by more than 

22 percent in 2006 from the 2005 price. 

Industry projections for 2007 are that 

prices will continue to increase to more 

than $176 per ton. Second, the U.S. 

Optimum Yield (OY) for whiting in 

2007 is 10 percent lower than the OY in 

2006. Third, because of higher than 

projected rockfish bycatch rates, the 

Council took action in March 2007 that 

placed new and more severe constraints 

on non-whiting groundfish fishing. This 

reduces the fishing opportunities for 


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these non-whiting sectors. Fourth, the 

OY for Alaska pollock is reduced for 

2007. 

All of these recent and unanticipated 

changes in conditions increase the 

likelihood of an accelerated race for 

fish: The first by making entry more 

potentially lucrative for additional 

vessels; the second by constraining 

supply of whiting for harvest and 

leading to more pressure among vessels 

to quickly capture the limited whiting 

quota; and the third and fourth by 

increasing the relative attractiveness of 

whiting compared to other fishing 

opportunities. Faced with this new 

information, the Council adopted and 

submitted its new request that NMFS 

promulgate an emergency rule that 

would prohibit any vessel from 

operating in the mothership, catcherprocessor, or shoreside delivery sector 

of the whiting fishery in 2007 if it did 

not have a history of sector-specific 

participation prior to January 1, 2007. 

The Council also committed to 

completing an amendment to its 

Groundfish FMP to resolve issues 

associated with AFA vessels for the long 

term, consistent with the MagnusonStevens Act, the AFA, and other 

applicable law. This could lead to an 

additional program under consideration 

of an individual fishermen’s quota 

system as early as 2010. 

NMFS agrees that if this rule is not 

implemented, an accelerated ‘‘race for 

fish’’ is likely to cause serious 

conservation and management 

problems, including excessive bycatch 

of overfished rockfish, excessive catch 

of endangered and threatened salmon, 

and severe disruption of other 

groundfish fishery sectors. This rule 

will help maintain stability in the 

whiting fishery and other groundfish 

fishing sectors in 2007 while the 

Council completes its FMP amendment 

to resolve groundfish and whiting 

fishing fleet capacity issues for the long 

term. This rule also provides that parties 

who invested in 2006 and early 2007 by 

purchasing groundfish trawl limited 

entry permits for aggregation and use on 

a single vessel in the whiting fishery in 

2007 are exempted from the prohibition 

against subsequently disaggregating 

such permits. This will mitigate 

financial harm to such parties who 

invested in good faith without knowing 

that this emergency rule could be 

implemented. The rule also contains 

provisions to allow a person who 

transferred a permit to a ‘‘prohibited’’

vessel (a vessel not eligible to 

participate in the fishery) can reverse 

that action and return the permit to the 

previous vessel or transfer it to a vessel 

that is eligible. Normally, a permit can 

only be transferred once a year. This 

person was not aware of the prospect of 

an emergency rule when he transferred 

the permit. Fairness justifies this 

exception to the regulation. 

For purposes of implementing the 

Council request, which is for control of 

entry on a sector-by-sector basis, NMFS 

is using 1997 as the base year. That is 

the first year in which the three sectors 

began being considered for separate subquotas and management controls. State 

landings data, observer records, and 

NORPAC industry reports will be the 

sole evidence to demonstrate eligibility 

based on historic sector-specific 

participation. 

Public Comments and Issues 

At the Council meeting, the Council 

took comment on the issue prior to 

taking action. There were numerous 

expressions of support for the action as 

well as some comments opposed to the 

action. In addition, the Northwest 

Region and the Council have received 

written comments since the Council 

action was taken. At the meeting, fishers 

who commented were divided; some 

opposed the action while most testifying 

before the Council supported it. While 

most of those testifying stated their 

belief that allowing new entrants would 

cause a conservation problem, there was 

some testimony that a problem would 

not occur. Some argued that leaving the 

fishery open to new entry could result 

in a high probability of intensive fishing 

early in the season leading to 

conservation problems (especially with 

respect to bycatch), while others argued 

that the catch limit on whiting provided 

assurance that there would not be any 

threat to whiting, and that the limits on 

bycatch provided protection to 

overfished rockfish. There was 

agreement that there is an allocation 

issue that the Council needs to resolve. 

Some urged the Council to address this 

for the longer term through Amendment 

15 without an emergency rule, while 

others supported an emergency rule to 

allow the fishery to proceed as it has in 

recent years (i.e., in a stable manner) 

without new entry while the Council 

develops Amendment 15. A 

spokesperson for the recreational sector 

supported the emergency rule as it 

could reduce the risk of excessive 

bycatch of salmon and rockfish, which 

in turn would reduce the risk of further 

constraints on recreational fishing for 

groundfish. A West Coast processing 

industry member also spoke in favor of 

the emergency rule. 

The West Coast state officials voting 

at the meeting all supported the 

emergency rule. The California state 

official made the motion for the 

emergency rule, expressing concern 

about the increased risk of excessive 

bycatch and noting restrictive actions 

the Council has taken toward other 

groundfish fishery sectors to prevent 

bycatch problems. NMFS believes it is 

likely that increased capacity in the 

whiting fishery could exacerbate such 

problems. It was noted that the whiting 

limit for 2007 is lower than in 2006, and 

thus there is a greater risk that new 

participation would lead to more 

intensive competition and problems. 

California also pointed out the risk of 

management problems if the whiting 

fishery were to close earlier than normal 

and whiting fishers were to place more 

pressure on other groundfish fishery 

sectors, thereby exacerbating problems 

in those sectors as well as coastal 

communities. Oregon’s representative 

on the Council was strongly in favor of 

the emergency rule as the state was 

concerned that additional entry would 

result in intensive early fishing, with 

high risk of excessive rockfish and 

salmon bycatch. Further, an early 

closure of the fishery would have severe 

adverse impacts on coastal processors in 

Oregon and elsewhere. It is notable that 

Washington’s representative had 

opposed the proposed emergency in 

September 2006 but was now convinced 

that 2007 presented different and 

unforeseen conditions. Washington 

noted that the Council’s proposal would 

not force out any person who had 

participated in 2006. Washington 

supported action as reducing the risk of 

adverse impacts on rockfish (especially 

noting concern about canary rockfish) 

and salmon. The Washington 

representative also noted that this 

would be a one-year action; it will be 

incumbent on the Council to address the 

capacity issue for the long-term in a 

timely manner. 

The Pacific Whiting Conservation 

Cooperative (Cooperative) 

recommended that the Council request 

the emergency rule. The Cooperative 

subsequently submitted written 

comments (see below). 

A processor who has recently 

invested in shoreside facilities has 

written NMFS in favor of keeping the 

fishery open, which in this context 

means to not freeze new entry to the 

shoreside processing sector. 

A company that invested in 2006 by 

purchasing limited entry permits and 

combining them on a single vessel with 

the intent of entering the fishery in 2007 

objected to the emergency rule proposal. 

In this company’s view, there is no 

‘‘emergency’’ pursuant to NMFS’

guidelines for the use of emergency 

authority, especially for the entry of 

additional processing capacity or a 


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27762 Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Rules and Regulations 

catcher/processor vessel. They noted 

that NMFS disapproved the Council’s 

September 2006 proposal, and the 

reasons for that disapproval would 

apply in this instance as well. They 

noted that the Council could have used 

its normal decision processes to 

establish additional measures to manage 

the whiting fishery and had chosen not 

to do so; in their view, nothing has 

changed so significantly as to warrant 

emergency regulations. They also noted 

that the permits acquired to allow their 

vessel to qualify under the limited entry 

program were from active vessels, so 

their prospective new entry would only 

replace existing capacity rather than add 

to the capacity of the fleet. Their letter 

identifies the specific analyses that they 

maintain would be needed to satisfy 

Magnuson-Stevens Act requirement for 

management regulations and asserts that 

such analyses would show that the 

‘‘best scientific information available’’

does not support an emergency rule. 

Subsequent Public Comments on the 

Emergency Rule Proposal 

At the Council meeting, following the 

vote on the proposed emergency action, 

the NMFS representative invited written 

public comment on the prospective 

action while the Council prepared the 

actual submission for NMFS 

consideration, requesting that they be 

submitted within two weeks. NMFS 

wanted to be sure it had as complete an 

understanding as possible on the range 

of issues and concerns that various 

parties would have on this matter. 

During this period, the following 

comments were received: 

The Pacific Whiting Conservation 

Cooperative wrote reiterating its support 

for emergency action. It noted that the 

voluntary industry arrangement that 

results in the slow pace of fishing early 

in the season and that includes 

collaboration and communication to 

avoid bycatch would likely end if there 

were new entry to the fishery. It 

indicated that there would be a ‘‘race for 

fish’’ leading to all the problems 

discussed by the Council when it agreed 

to request emergency action. 

The State of Oregon submitted 

supplemental comments, reiterating its 

concerns about the risk of excessive 

bycatch of rockfish as well as the 

economic disruption to the West Coast 

whiting fishing fleet and to West Coast 

processors and their employees if there 

were early closure of the whiting fishery 

for any reason. 

One party suggested that the 

emergency rule request be approved 

only with respect to the entry of new 

harvesting vessels. This would mean 

that additional mothership operations 

could enter the fishery in 2007. This 

party suggested that it would be 

beneficial to other whiting fishers to 

increase the number of potential buyers 

of fish. 

Two sets of comments were received 

from representatives of the mothership 

sector. They favored the proposed 

action, with special emphasis on 

ensuring that eligibility for participation 

is on a sector-specific basis, and that 

eligibility in 2007 be based on sectorspecific participation beginning in 1997. 

Responses to Comments 

Because the conservation concerns 

raised by the Council in 2006 still exist 

and because, unlike their 2006 request, 

the Council’s proposed remedy fully 

addresses those concerns by 

encompassing all vessels that could 

potentially enter the whiting fishery 

absent this rule, NMFS believes that the 

available information demonstrates that 

emergency action is warranted. This 

conclusion is further supported by the 

new information received in late 2006 

and early 2007. These conditions may 

pose an unacceptably high risk that 

there would be serious conservation and 

management problems if no action is 

taken. The Council has been responsive 

to NMFS’ objections to the prior request 

for emergency action and has taken the 

broader action required to address the 

problem in the short term, and has 

committed to action to resolve the 

whiting fishery capacity issue in the 

long-term through an amendment to the 

Groundfish FMP. NMFS notes that the 

emergency rule would be in effect for at 

most one year, and that the rule 

contains provisions intended to 

minimize financial harm to those who 

may have invested to participate in the 

fishery in 2007 not knowing they would 

be precluded from utilizing the 

investment in the fishery. NMFS notes 

further the critical need to ensure that 

bycatch limits on overfished rockfish 

not be exceeded so that the stocks can 

rebuild in accordance with the 

approved rebuilding plans. 

NMFS agrees with the Council that 

the risks of serious economic 

disruptions in the event of excessive 

catch of rockfish are very high if there 

were no control to stop entry into the 

whiting fishery at least for 2007. NMFS 

also agrees that the risk of loss of 

industry cooperation in the fishing year 

would pose serious risks of loss of 

control over bycatch. With respect to the 

potential to allow new mothership 

operations, NMFS concludes that this 

would not fully address the risks of an 

accelerated ‘‘race for fish,’’ with 

consequent risk of early fishing and in 

turn excessive bycatch. Again, the 

cooperation of industry is vital to 

ensuring a stable fishery with minimal 

bycatch. NMFS determined that 

applying the prohibition on new entry 

only to the catcher sectors would not 

address the problem; the entry of 

additional at-sea processors could also 

lead to an accelerated race for fish as 

more parties compete for the available 

sector allocation, with a higher 

likelihood of a breakdown in 

communication and cooperation leading 

to excessive risk of heavy early season 

fishing with high bycatch and fishery 

disruptions. NMFS agrees that the 

Council intended that eligibility be 

determined on a sector-specific basis, 

and has determined that 1997 should be 

used as the initial year for qualification 

of participation in the fishery on a 

sector-specific basis. This was the first 

year in which management of the 

domestic whiting fishery was managed 

on a sector-specific basis. 

Evaluation of Emergency Rule Request 

Against Agency Guidelines 

NMFS has considered the Council’s 

request and the information on which 

the request is based. NMFS considered 

also the information in the Council’s 

final environmental impact statement 

(FEIS) for its biennial harvest limits and 

conservation and management 

measures. This includes extensive 

information on the status of stocks and 

the economic status of the fisheries and 

the dependency of communities which 

are dependent on those fisheries. NMFS 

has evaluated the proposal against its 

guidelines for the use of emergency 

rules, published at 62 FR 44421 (August 

21, 1997), which sets forth criteria that 

must be met to warrant emergency rules. 

Each of the criteria is discussed below. 

1. The Situation Results From Recent, 

Unforeseen Events or Recently 

Discovered Circumstances 

Two years ago, it could not have been 

foreseen that Pacific whiting would be 

a much more important component of 

the West Coast groundfish fisheries as 

well as a potential target of Alaska 

fishers. As noted earlier, in 2005 and 

2006, ex-vessel prices for whiting 

increased dramatically, and the industry 

projection is that prices will continue to 

rise in 2007. The U.S. OY for whiting in 

2007 is down 10 percent from the 2006 

level, so the supply of whiting for the 

U.S. industry will lead to increased 

competition even without new entry. 

The Council acted in March 2007 to 

further restrict non-whiting fishing due 

to higher than anticipated rockfish 

bycatch rates; this puts new pressure on 

those other sectors and makes whiting 

relatively more attractive, and could 


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Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Rules and Regulations 27763 

promote shifting of effort to whiting if 

no action were taken to prevent it. 

Finally, while the OY for Alaska pollock 

is reduced and rationalization of the 

Alaska pollock fishery allows many 

vessels that normally fish in Alaska to 

set their own schedules for catching a 

share of the harvest. The pollock fishery 

would be available later in the year, if 

desired; these vessels (many of which 

have or could obtain West Coast trawl 

limited entry permits) could choose to 

fish for Pacific whiting early in the year 

and, when the whiting quota is reached, 

shift operations to Alaska to fish for 

pollock. These vessels have the 

capability (i.e., equipment and gear) to 

fish for whiting with little or no added 

cost. Taken together, these new and 

unforeseen conditions support a high 

likelihood of new entry to the whiting 

fishery in 2007 if no action were taken. 

This would result in unacceptably high 

risk of conservation and management 

problems. 

2. The Situation Presents Serious 

Conservation or Management Problems 

in the Fishery 

As noted, the whiting stock is 

thoroughly monitored and assessed 

annually, and the results are generally 

accepted as presenting an accurate 

assessment of the stock. The U.S. and 

Canada have agreed to a Treaty for joint 

management of the stock and for sharing 

the harvestable surplus. Given the 

Council’s relatively conservative harvest 

strategy for whiting, there is little reason 

for serious conservation concern about 

the current and future condition of the 

Pacific whiting stock. 

However, it is also generally true that 

the more participants in a fishery 

managed under quotas, the greater the 

likelihood that conservation will 

become a concern, and especially in the 

case where the fishery is still subject to 

new entry. Quite simply, new entry 

encourages more intensive fishing as 

soon as a fishery is open as participants 

fear they will not catch a fair share of 

the available fish if they do not fish 

early. In turn there is greater pressure to 

fish hard with possibly less regard for 

minimizing waste or bycatch. This is 

especially true in the whiting fishery, in 

which industry cooperation has been a 

vital element in controlling the pace of 

the fishery and in sharing information 

so that participants would avoid areas of 

high bycatch and thus help each other 

extend the season as long as possible. 

As noted above, this cooperation would 

be less likely to continue if new entrants 

were allowed into the fishery without 

limit. A breakdown in cooperation and 

communication would be likely to 

result in an accelerated race for fish and 

the consequent unacceptably high risk 

of excessive bycatch and fishery 

disruptions. If fishing is conducted 

more intensely, there is likely to be less 

care to avoid bycatch and more 

likelihood of ‘‘disaster’’ tows with 

extremely high bycatch levels. This 

would be especially true if the new 

entrants were high capacity vessels with 

a need to fill up fast to cover costs, or 

if the vessel were captained by a person 

not familiar with the fishery and unable 

to adjust to high bycatch rates. This 

could lead to early closure of the 

whiting fishery if bycatch limits are 

reached; it is important to note that if a 

bycatch limit is reached, even if only by 

one sector, fishing by all sectors of the 

whiting fishery must cease. For 

perspective, in early June 2004 a vessel 

in the mothership sector had a single 

tow of fish estimated to contain 3.9 mt 

of canary, which is equal to 83 percent 

of the 2007 whiting fishery bycatch 

limit for non-tribal whiting fisheries. An 

accelerated race for fish could well 

result in closure of the whiting fishery 

before the annual quota of whiting is 

reached, resulting in serious loss of 

income and employment both to fishers 

and to processing facilities. Accelerated 

fishing for Pacific whiting in the spring 

is also likely to result in incidental 

catches of salmon in excess of the 

incidental take allowances under 

biological opinions issued under the 

ESA. Also, as pointed out above, the 

yield per fish is greater later in the 

season than earlier, so pressure to fish 

early is likely to result in less usable 

and less valuable product. 

In summary, allowing new entry to 

the whiting fishery in 2007 is likely to 

result in serious conservation and 

management problems. 

The situation can be addressed 

through emergency regulations for 

which the immediate benefits outweigh 

the value of advance notice, public 

comment and deliberative consideration 

of the impacts on participants to the 

same extent as would be expected under 

the normal rulemaking process. 

The benefit of immediate action is 

that it provides for greater stability in 

the 2007 Pacific whiting fishery while 

the Council completes action on the 

amendment to manage the fishery over 

the long term, possibly including 

conservation and management measures 

to deal with AFA impacts as well as the 

impacts of otherwise unlimited entry 

into the whiting fishery. The Council 

can use its established planning process 

and the Secretary can use notice and 

comment rulemaking procedures for 

implementing the long-term strategy 

and measures. There is little cost as only 

new entry would be prohibited; any 

vessels that participated prior between 

January 1, 1997, and December 31, 2006, 

inclusive, would be eligible to 

participate in 2007. It can be argued that 

the fishery is already overcapitalized, 

but at least there would not be further 

overcapacity due to additional new 

entry to the fishery for short-term gain 

at the expense of those with a longstanding interest in the fishery. 

It is known that at least one party 

invested in 2006 by buying limited 

entry permits and aggregating them for 

application of a single permit on a 

single vessel intended to participate in 

the whiting fishery in 2007. There may 

be other such situations. The regulations 

for the limited entry permit program 

currently do not allow a permit 

established through aggregation of 

multiple permits to be subsequently 

disaggregated. However, to alleviate 

financial harm to any who in good faith 

made investments as described, the 

emergency rule provides for an 

exception from the prohibition against 

disaggregation of permits. The 

investor(s) may then be able to recapture 

at least a portion of the investment that 

might otherwise be lost. In addition, one 

party is known to have tried to register 

a permit for use on a ‘‘prohibited’’

vessel; the rule includes a provision 

allowing such parties to register their 

permits for alternate, eligible vessels in 

such cases. 

As noted above, NMFS has 

established that 1997 is the initial year 

for which sector participation will be 

considered in determining eligibility for 

a particular sector of the whiting fishery 

in 2007. State landings data, Pacific 

Fishery Information Network (PacFIN) 

data, observer data, and NORPAC 

industry reports as appropriate to the 

sector, will be the sole evidence to 

demonstrate the sector-specific 

eligibility of vessels. 

Classification 

The Assistant Administrator finds 

good cause under 5 U.S.C. 553(b)(B) to 

waive the requirement for prior notice 

and opportunity for public comment, as 

such procedures are impracticable and 

contrary to the public interest. 

The season for the primary West Coast 

Pacific whiting fishery opened April 15 

south of 42° N. latitude (lat.) and opens 

May 15 south of 42° N. lat. The normal 

seasonal pattern of the fishery (and the 

pattern that the Council believes is 

necessary to prevent adverse impacts on 

fish stocks as well as on established 

fisheries) is to have relatively little 

fishing early in the season with 

expanded fishing later in the year, and 

with the fishery extending through the 

summer. This has been achieved in 


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27764 Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Rules and Regulations 

recent years, at least in part, because of 

voluntary action by an industry group 

that has worked hard to ensure that the 

season will last well into the summer or 

fall as long as the whiting quota allows 

it. This allows less fishing when there 

are high bycatch rates for rockfish and 

salmon, and more fishing when bycatch 

rates are lower. 

As noted above, there were several 

new pieces of information supporting 

the expectation of additional entry to 

the fleet in 2007. First, the price for 

whiting continues to increase to 

unprecedented levels, ex-vessel prices 

have increased from $77 per ton in 2004 

to $137 per ton in 2006—nearly 

doubling since 2004, and increasing by 

over 22% compared to 2005. Industry 

projections for 2007 are that prices will 

continue to increase to over $176 per 

ton. Second, the U.S. Optimum Yield of 

whiting was reduced by 10% for the 

2007 season compared to 2006. Third, 

because of higher than projected 

rockfish bycatch rates, the Council took 

action in March that placed more severe 

constraints on non-whiting groundfish 

fishing. Fourth, the quota for Alaskan 

pollock was reduced this year. All of 

these recent changes increase the 

chance of an accelerated race for fish: 

The first by making entry more lucrative 

for additional vessels, the second by 

constraining supply of whiting and 

leading to more pressure among vessels 

to quickly capture the more limited 

supply of whiting, and the third and 

fourth by increasing the relative 

attractiveness of entering the whiting 

fishery this year. 

Without this emergency rule, new 

entry is likely early in the season; if this 

happens, the voluntary limitation of 

early season fishing will likely cease to 

be effective, resulting in more intensive 

early season fishing and higher bycatch 

levels. It also would likely result in 

early achievement either of a bycatch 

limit (causing early closure of the 

whiting fishery) or of the whiting catch 

quota (also causing early closure of the 

whiting fishery). Fishers from Alaska 

could return to Alaska; West Coastbased vessels would not have that 

alternative and would either be idled or 

would add to pressure in the severely 

constrained other sectors of the 

groundfish fishery. In the worst case, 

the whiting fishery would catch so 

much in excess of its rockfish bycatch 

limits that the Council would be forced 

to impose even more limits on the other 

groundfish fishery sectors to keep total 

bycatch within the total limits. The 

emergency rule maintains the status quo 

in the fishery at least through 2007, 

while the Council develops a long-term 

management program to achieve 

stability for the future. Providing 

opportunity for prior notice and public 

comments on the Council’s requested 

action for 2007 would delay the rule to 

the extent that the benefits of the rule 

would be nullified and the protection of 

the resources intended by the rule 

would not be provided. 

The proposed action will have 

beneficial effects on current participants 

in the Pacific whiting fishery and on 

participants in other groundfish 

fisheries. Without this action, it is fairly 

certain that there would be additional 

entry into the fishery, meaning greater 

competition for the available harvest 

(the U.S. whiting OY is reduced by 10% 

from the 2006 harvest level) and a 

greater likelihood of an ‘‘accelerated 

race for fish.’’ This would be expected 

to result in early closure of the directed 

whiting fishery, which in turn could 

lead to idle capacity (for those who do 

not have the ability to shift to other 

fisheries or other groundfish sectors) or 

excess capacity shifting to other 

groundfish fisheries. Such a shift would 

exacerbate the economic difficulty being 

experienced in those non-whiting 

sectors due to severe constraints on 

fishing levels and areas available for 

fishing. In one possible scenario, the no 

action alternative would result in 

rockfish bycatch limits for the 

groundfish fisheries being exceeded in 

the whiting fishery at levels that would 

require additional reductions in other 

groundfish fishing sectors targeting 

healthy groundfish stocks. 

Therefore, NMFS has concluded it is 

impracticable and contrary to the public 

interest to provide an opportunity for 

prior notice and public comment under 

5 U.S.C. 553(b)(B). For the same reasons 

as discussed above, the Assistant 

Administrator also finds that good cause 

exists under 5 U.S.C. 553(d)(3) to waive 

the 30-day delay in effectiveness of this 

rule. As previously discussed, this rule 

is necessary to prevent the conservation 

and management problems that would 

arise from additional entry to the Pacific 

whiting fishery in 2007. Without this 

rule, there will be new entry, and 

current stability in the fishery, with low 

bycatch of rockfish and salmon, will 

likely dissolve. This would pose an 

unacceptable risk of excessive bycatch 

of overfished rockfish and of salmon as 

well as an unacceptable risk of severe 

management problems in the 

economically stressed groundfish 

fishery. 

This temporary rule is exempt from 

the procedures of the Regulatory 

Flexibility Act because the rule is issued 

without opportunity for prior notice and 

opportunity for public comment. 

An environmental assessment was 

prepared for this action under the 

National Environmental Policy Act and 

a Finding of No Significant Impact was 

signed on May 4, 2007. 

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. 

Dated: May 11, 2007. 

William T. Hogarth, 

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 

continues to read as follows: 

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

■ 2. In § 660.306, paragraph(f)(6) is 

added to read as follows: 

§ 660.306 Prohibitions. 

* * * * * 

(f) * * * 

(6) Fish for or land whiting, or process 

whiting at sea, while participating in a 

specific sector (as defined at 

§ 660.373(a)), from May 14, 2007 and 

through November 13, 2007 with a 

vessel that has no history of 

participation within that specific sector 

of the whiting fishery in the period after 

December 31, 1996, and prior to January 

1, 2007, as specified in § 660.373(j). 

■ 3. In § 660.333, paragraph (f) is added 

to read as follows: 

§ 660.333 Limited entry fishery—eligibility 

and registration. 

* * * * * 

(f) Limited entry permits indivisible. 

Nothwithstanding paragraph (d), a 

trawl-endorsed limited entry permit that 

was created between December 31, 

2006, and May 14, 2007 by aggregating 

multiple limited entry permits under 

§ 660.335(b) may be disaggregated back 

into the initially combined component 

permits. 

■ 4. In § 660.335, paragraph (f)(3) is 

added to read as follows: 

§ 660.335 Limited entry permits—renewal, 

combination, stacking, change of permit 

ownership, and transfer. 

* * * * * 

(f) * * * 

(3) Any transfer of a trawl-endorsed 

limited entry permit that occurred 

between December 31, 2006, and May 

14, 2007 may be rescinded by the permit 


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Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Rules and Regulations 27765 

owner without counting against that 

permit owner’s once per calendar year 

restriction on frequency of permit 

transfers for the 2007 calendar year. 

* * * * * 

■ 5. In § 660.373, paragraph (j) is added 

to read as follows: 

§ 660.373 Pacific whiting (whiting) fishery 

management. 

* * * * * 

(j) 2007 Pacific whiting fishery. (1) In 

general, a person may fish for or land 

whiting or process whiting at sea in a 

sector of the whiting fishery (as defined 

at § 660.373(a)) between May 17, 2007 

and November 13, 2007 only with a 

vessel that has history of participation 

in that sector of the whiting fishery in 

the period after December 31, 1996, and 

prior to January 1, 2007. Specifically: 

(i) To harvest whiting in the shorebased sector between May 17, 2007 and 

November 13, 2007, a vessel must have 

harvested for delivery to a shore-based 

processor at least 4000 lbs (1.81 mt) of 

whiting in a single trip during the 

primary season (as defined at 

§ 660.373(b)) in the period after 

December 31, 1996, and prior to January 

1, 2007. State fish ticket data collected 

by the states and maintained by Pacific 

States Marine Fisheries Commission’s 

Pacific Fishery Information System is 

the sole evidence to demonstrate 

participation in this sector. 

(ii) To harvest whiting in the 

mothership sector between May 17, 

2007 and November 13, 2007, a vessel 

must have harvested whiting for 

delivery to motherships in the period 

after December 31, 1996, and prior to 

January 1, 2007. Observer data collected 

by the Northwest Fisheries Science 

Center and by North Pacific Groundfish 

Observer Program as organized under 

the Alaska Fisheries Science Center’s 

NORPAC database is the sole evidence 

to demonstrate participation in this 

sector. 

(iii) To process whiting in the 

mothership sector between May 17, 

2007 and November 13, 2007, a vessel 

must have processed at sea, but not 

harvested, whiting in the period after 

December 31, 1996, and prior to January 

1, 2007. Observer data collected by the 

Northwest Fisheries Science Center and 

by North Pacific Groundfish Observer 

Program as organized under the Alaska 

Fisheries Science Center’s NORPAC 

database is the sole evidence to 

demonstrate participation in this sector. 

(iv) to harvest and process whiting in 

the catcher-processor sector between 

May 17, 2007 and November 13, 2007, 

a vessel must have harvested and 

processed whiting in the period after 

December 31, 1996, and prior to January 

1, 2007. Observer data collected by 

Northwest Fisheries Science Center and 

by North Pacific Groundfish Observer 

Program as organized under the Alaska 

Fisheries Science Center’s NORPAC 

database is the sole evidence to 

demonstrate participation in this sector. 

(2) [Reserved] 

[FR Doc. 07–2417 Filed 5–14–07; 8:58 am] 

BILLING CODE 3510–22–P 


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