[Federal Register Volume 72, Number 95 (Thursday, May 17, 2007)]
[Rules and Regulations]
[Pages 27759-27765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2417]
=======================================================================
-----------------------------------------------------------------------
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 Sec. Sec. 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
[email protected] 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:
[email protected].
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, catcher-processor, 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[deg]
north latitude (N. lat.) and 40[deg]30' N. lat.) begins on April 1, and
the fishery south of 40[deg]30' N. lat. begins April 15. The Pacific
whiting shoreside fishery north of 42[deg] 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[deg] 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-come-first-
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
[[Page 27760]]
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
Magnuson-Stevens 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
[[Page 27761]]
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, catcher-processor, 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 Magnuson-Stevens 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 sub-quotas 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
[[Page 27762]]
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 sector-
specific 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
[[Page 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 long-standing
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[deg] N. latitude (lat.) and opens May 15
south of 42[deg] 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
[[Page 27764]]
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 Coast-based 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.
0
For the reasons set out in the preamble, 50 CFR part 660 is amended as
follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
1. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 660.306, paragraph(f)(6) is added to read as follows:
Sec. 660.306 Prohibitions.
* * * * *
(f) * * *
(6) Fish for or land whiting, or process whiting at sea, while
participating in a specific sector (as defined at Sec. 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 Sec. 660.373(j).
0
3. In Sec. 660.333, paragraph (f) is added to read as follows:
Sec. 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 Sec. 660.335(b) may be disaggregated back into the
initially combined component permits.
0
4. In Sec. 660.335, paragraph (f)(3) is added to read as follows:
Sec. 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
[[Page 27765]]
owner without counting against that permit owner's once per calendar
year restriction on frequency of permit transfers for the 2007 calendar
year.
* * * * *
0
5. In Sec. 660.373, paragraph (j) is added to read as follows:
Sec. 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 Sec. 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 shore-based 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 Sec. 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