[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Rules and Regulations]
[Pages 51682-51684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17342]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 050816224-5224-01; I.D. 081005A]
RIN 0648-AT69


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Pacific Whiting; Fishery Closure

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

ACTION: Temporary rule; request for comments.

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SUMMARY: This emergency rule, implemented under the authority of the 
Pacific Coast groundfish fishery management plan (FMP), establishes a 
salmon conservation zone for the primary Pacific whiting (whiting) 
fishery, shoreward of a boundary line approximating the 100-fm (183-m) 
depth contour. Under this rule, fishing for Pacific whiting within the 
salmon conservation zone is prohibited.

DATES: Effective August 26, 2005, until February 27, 2006. Comments 
must be received no later than 5 p.m., local time on September 26, 
2005.

ADDRESSES: You may submit comments, identified by I.D. 081105A by any 
of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#97a5a7a7a2fff6fcf2e4f6fbfaf8f9b9f9e0e5d7f9f8f6f6b9f0f8e1"><span class="__cf_email__" data-cfemail="12202222277a73797761737e7f7d7c3c7c6560527c7d73733c757d64">[email protected]</span></a>: Include 081105A in 
the subject line of the message.
    <bullet> Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
    <bullet> Fax: 206-526-6736, Attn: Becky Renko
    <bullet> Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky 
Renko.
    Copies of the Final Environmental Impact Statement (FEIS) 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, final regulatory flexibility analysis (FRFA), 
and the Small Entity Compliance Guide for the groundfish harvest 
specifications for 2005-2006 are available from D.

[[Page 51683]]

Robert Lohn, Administrator, Northwest Region (Regional Administrator), 
NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS), 
phone: 206-526-6110; fax: 206-526-6736; and; email: 
<a href="/cdn-cgi/l/email-protection#53313630382a7d21363d383c133d3c32327d343c25"><span class="__cf_email__" data-cfemail="b7d5d2d4dcce99c5d2d9dcd8f7d9d8d6d699d0d8c1">[email protected]</span></a>, or Yvonne deReynier, phone: 206-526-6129; fax: 
206-526-6736; and; e-mail: <a href="/cdn-cgi/l/email-protection#374e415859595219535245524e595e5245775958565619505841"><span class="__cf_email__" data-cfemail="79000f1617171c571d1c0b1c0017101c0b3917161818571e160f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This emergency rule is accessible via the Internet at the Office of 
the Federal Register'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/1sustfsh/gdfsh01.htm.

Pacific Whiting Fishery

    Pacific whiting (Merluccius productus) is a very productive species 
with highly variable recruitment (the biomass of fish that mature and 
enter the fishery each year) and a relatively short life span when 
compared to other groundfish species. Whiting has the largest (by 
volume) annual allowable harvest levels of the 90+ groundfish species 
managed under the FMP. The coastwide whiting stock is managed by both 
the United States and Canada, and mature whiting are commonly available 
to vessels operating in U.S. waters from April through October. 
Background on the stock assessment for and the establishment of the 
2005 acceptable biological catch (ABC) and optimum yield (OY) for 
Pacific whiting is provided in the final rule for the 2005 whiting 
harvest specifications, published May 3, 2005 (70 FR 22808).
    Whiting is taken by vessels using mid-water trawl gear in four 
commercial sectors: tribal trawl vessels (Makah Tribe); non-tribal 
trawl catcher boats delivering whiting to shore-based processing 
plants; non-tribal trawl catcher boats delivering whiting to 
motherships at sea; and, non-tribal catcher-processors. For 2005, using 
the sliding scale allocation method described in the final rule on the 
2005 whiting harvest specifications, the tribal whiting allocation is 
35,000 mt. The 2005 non-tribal commercial OY for whiting is 232,069 mt. 
This is calculated by deducting the 35,000-mt tribal allocation and 
2,000 mt for research catch and bycatch in non-groundfish fisheries 
from the 269,069 mt total catch OY. Regulations at 50 CFR 
660.323(a)(24) divide the commercial OY into separate allocations for 
the non-tribal catcher/processor, mothership, and shore-based sectors 
of the whiting fishery. Each sector receives a portion of the 
commercial OY, with the catcher/processors getting 34 percent (78,903 
mt in 2005), motherships getting 24 percent (55,696 mt in 2005), and 
the shore-based sector getting 42 percent (97,469 mt in 2005).
    The best available information as of August 11, 2005, indicates 
that the following amounts of whiting have been taken by the four 
whiting sectors participating in the 2005 primary whiting season: 
tribal, 28,325 mt (80.9 percent of allocation); non-tribal shore-based, 
70,176 mt (71.9 percent of allocation); non-tribal mothership, 37,659 
mt (67.6 percent of allocation); non-tribal catcher/processor, 48,006 
mt (60.8 percent of allocation).

Salmon Bycatch in the 2005 Primary Whiting Season

    Primary seasons for the non-tribal whiting fishery are provided at 
50 CFR 660.373(b). In 2005, the primary seasons for the non-tribal 
whiting fishery started on the following dates: Catcher/processor 
sector May 15; Mothership sector May 15; Shore-based sector June 15; 
north of 42[deg] N. lat., April 1 between 42[deg] and 40[deg]30' N. 
lat., and April 15 south of 40[deg]30' N. lat. The tribal fishery, 
conducted by Makah Tribe members, began on May 1, 2005. The Makah 
Tribe's U&A fishing area is located within the U.S. West Coast 
exclusive economic zone (EEZ) north of 48[deg]02'15'' N. lat. and east 
of 125[deg]44'00'' W. long.
    NMFS tracks catch levels of target and non-target species in the 
at-sea catcher-processor and mothership sectors inseason. The agency 
also receives inseason catch and bycatch data from the states of 
Oregon, California, and Washington on the shore-based sector and from 
the Makah Tribe on its whiting fishery. NMFS is responsible for closing 
the non-tribal fishing sectors when it estimates the whiting 
allocations for these sectors will be met.
    Chinook bycatch in the non-tribal at-sea and tribal whiting 
fisheries is closely monitored. As in previous years, most shore-based 
whiting vessels were issued exempted fishing permits (EFPs) for landing 
unsorted whiting during the primary season. EFPs allow vessels 
delivering to shore-based harvesters to delay sorting the catch until 
offload. Delaying sorting until offload allows state biologists and 
industry-hired monitors to collect information on the incidental catch 
of prohibited species at the processing facilities. Since 2004, all EFP 
participants have been required to carry video cameras for monitoring 
catch retention at sea. To provide total catch data monitoring in the 
at-sea processing sectors of the fishery, all at-sea processing vessels 
carry two NMFS-trained observers while participating in the fishery. 
Total catch data from the whiting fisheries is available more swiftly 
for use in management decisions than data from many other West Coast 
groundfish fisheries.

ESA Consultation on the Whiting Fishery

    The incidental take statement prepared pursuant to the Endangered 
Species Act requires reinitiation of consultation if the fishery 
exceeds an 11,000-Chinook salmon annual bycatch amount. In early July 
of the 2005 fisheries, NMFS first saw data on higher than expected 
salmon bycatch rates. By the end of July, primary whiting season data 
indicated that the fishery would likely exceed a bycatch of 11,000 
salmon in 2005. The best available information as of August 11, 2005, 
indicates that the following numbers of Chinook salmon have been taken 
as bycatch in the whiting fishery by the four whiting sectors 
participating in the 2005 primary whiting season: tribal, 3,911 fish; 
non-tribal shore-based, 3,622 fish; non-tribal mothership, 2,143 fish; 
non-tribal catcher/processor, 1,607 fish. Therefore, NMFS has 
reinitiated consultation on the effect of the primary whiting fishery 
on salmon ESUs listed as endangered or threatened, and is taking this 
emergency action to reduce the effect of the whiting fishery on salmon 
for the remainder of the 2005 primary season.
    NMFS reviewed 2001-2004 salmon bycatch data from the primary 
whiting season to determine if there were a depth at which whiting 
fishery participants could catch whiting, yet have lower salmon bycatch 
rates. Fishery data from those years indicate that salmon bycatch rates 
in the August-November period decline notably from the May-July bycatch 
rates and decrease for vessels fishing offshore of the 100- fm (183- m) 
depth contour. Therefore, NMFS is implementing an emergency rule that 
creates a salmon conservation zone for West Coast EEZ waters shoreward 
of a boundary line approximating the 100-fm (183-m) depth contour, 
wherein fishing for whiting is prohibited. Federal regulations at 50 
CFR 660.393(a) provide latitude/longitude coordinates that define a 
boundary line at the 100-fm (183-m) depth contour; this boundary line 
is used, as necessary, to define the boundaries of trawl or non-trawl 
Rockfish Conservation Areas for the non-whiting groundfish fisheries.

[[Page 51684]]

 This same boundary line is used as the offshore boundary of the Ocean 
Salmon Conservation Zone established by this rule.

Regulatory Changes put into Effect Through This Emergency Action

    Federal regulations at 50 CFR 660.373(c) establish two closed areas 
for the Pacific whiting fishery that are intended to constrain the 
effects of the fishery on Klamath and Columbia River salmon. Additional 
salmon protection is provided at 50 CFR 660.373(d), which sets whiting 
trip limits for vessels operating shoreward of the 100-fm (183-m) depth 
contour in the Eureka management area (from 43[deg]00' to 40[deg]30' N. 
lat.) This emergency rule temporarily establishes a third salmon 
conservation zone for all West Coast waters shoreward of a boundary 
line approximating the 100-fm (183-m) depth contour. The latitude/
longitude coordinates defining the boundary line that approximates the 
100-fm (183-m) depth contour are provided at Sec.  660.393(a).

Classification

    This emergency rule establishes a coastwide salmon conservation 
zone for the Pacific whiting fishery. It is issued under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act at 
section 305(c)(1) and is consistent with the regulations implementing 
the FMP at 50 CFR part 660.
    The Assistant Administrator for Fisheries, NOAA (AA) finds good 
cause to waive the requirement to provide prior notice and comment on 
this action pursuant to 5 U.S.C. 553(b)(B)., because Pproviding prior 
notice and opportunity for public comment would be impracticable and 
contrary to the public interest for the following reasons. The 
information on which this action is based was not available to NMFS 
until July 2005 and the closed area implemented by this rule needs to 
be in place as soon as possible in August 2005 in order to provide 
additional protection for ESA-listed endangered and threatened salmon 
during the remainder of the 2005 primary primary whiting season, as 
well as during the ESA consultation that is currently ongoing for these 
salmon. If the agency were to conductundergo a proposed and final 
rulemaking for this action, the rule would not likely be finalized 
until after the whiting fisheries had achieved their 2005 whiting 
quotas. The bycatch of ESA-listed salmon could continue unabated during 
this time. Providing prior notice and comment would be impracticable 
because affording prior notice and opportunity for public comment would 
impede the agency's mandated duty to manage fisheries to protect 
endangered and threatened salmon.
    For the reasons described above, pursuant to 5 U.S.C. 553(d)(3), 
the AA also finds good cause to waive the 30-day delay in 
effectiveness, so that this rule may become effective as soon as 
possible to provide immediate protection for ESA-listed endangered and 
threatened salmon.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action is within the scope of the October 2004 Environmental 
Impact Statement (EIS) prepared by the Council for the 2005-2006 
Pacific Coast groundfish ABCs, OYS, and management measures. Copies of 
this EIS are available from the Pacific Council (See ADDRESSES.)
    This emergency 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.
    The proposed and final rules to implement the 2005-2006 groundfish 
harvest specifications and management measures were developed after 
meaningful consultation and collaboration with tribal officials from 
the area covered by the FMP, per Executive Order 13175. 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 2005-2006 tribal management measures, which was passed by the 
Council. Of the four groundfish treaty tribes, only the Makah Tribe 
conducts a whiting fishery. NMFS consulted with the Makah Tribe on 
salmon bycatch in their whiting fishery and on implementing a fishery 
closure shoreward of a boundary line approximating the 100-fm (183-m) 
depth contour. The Makah Tribe is implementing tribal fishery 
regulations to close the tribal whiting fishery shoreward of 100- fm 
(183- m) and is beginning testing a salmon bycatch excluder device that 
has been successfully used to exclude salmon bycatch in Alaska pollock 
fisheries.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: August 26, 2005.
James W. Balsiger,
Acting Deputy, Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

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

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

0
l. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.373, paragraph (c)(3) is added to read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (c) * * *
    (3) Ocean Salmon Conservation Zone. All waters shoreward of a 
boundary line approximating the 100- fm (183- m) depth contour. 
Latitude and longitude coordinates defining the boundary line 
approximating the 100-fm (183-m) depth contour are provided at Sec.  
660.393(a). This closure supplements the closures provided in this 
section at paragraphs (c)(1) and (c)(2).
* * * * *
[FR Doc. 05-17342 Filed 8-26-05; 2:26 pm]
BILLING CODE 3510-22-S


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