# Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2015-2016 Biennial Specifications and Management Measures; Inseason Adjustments
**AGENCY:**
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
**ACTION:**
Final rule; inseason adjustments to biennial groundfish management measures.
**SUMMARY:**
This final rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries. This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan (PCGFMP), is intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.
**DATES:**
This final rule is effective October 29, 2015.
**FOR FURTHER INFORMATION CONTACT:**
Gretchen Hanshew, phone: 206-526-6147, fax: 206-526-6736, or email: *[email protected]* .
**SUPPLEMENTARY INFORMATION:**
**Electronic Access**
This rule is accessible via the Internet at the Office of the Federal Register Web site at *https://www.federalregister.gov* . Background information and documents are available at the Pacific Fishery Management Council's Web site at *http://www.pcouncil.org/* . Copies of the final environmental impact statement (FEIS) for the Groundfish Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280.
**Background**
As part of biennial harvest specifications and management measures, annual catch limits (ACLs) are set for non-whiting groundfish species, deductions are made “off-the-top” from the ACL for various sources of mortality (including non-groundfish fisheries that catch groundfish incidentally, also called incidental open access fisheries) and the remainder, the fishery harvest guideline, is allocated amongst the various groundfish fisheries. The limited availability of overfished species that can be taken as incidental catch in the Pacific whiting fisheries, particularly darkblotched rockfish, Pacific ocean perch, and canary rockfish, led NMFS to implement sector-specific allocations for these species to the Pacific whiting fisheries. If the sector-specific allocation for a non-whiting species is reached, NMFS may close one or more of the at-sea sectors automatically, per regulations at § 660.60(d).
The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommended changes to current groundfish management measures at its September 9-16, 2015 meeting. The Council recommended taking a portion of the darkblotched rockfish initially deducted from the ACL that would likely go unharvested in 2015 and making it available to the mothership (MS) and catcher/processor (C/P) sectors of the at-sea Pacific whiting fishery, with no more than 5 metric tons (mt) to either sector.
**Transferring Darkblotched Rockfish to the Mothership and Catcher/Processor Sectors**
At the September meeting, the MS sector requested an increase to their darkblotched rockfish set-aside to accommodate higher than anticipated bycatch rates in 2015 to prevent closure of the MS sector prior to harvesting their full allocation of Pacific whiting, as occurred temporarily in 2014 before darkblotched rockfish was distributed to them (79 FR 69060, November 20, 2014). At the start of 2015, the C/P and MS sectors of the Pacific whiting fishery were allocated 9.2 mt and 6.5 mt of darkblotched rockfish, respectively, per regulations at § 660.55(c)(1)(i)(A).
According to the best available fishery information, bycatch rates of darkblotched rockfish in the MS sector have been more than double the rate seen in 2014 (Agenda Item H.9.b, Public Comment, September 2015). Additionally, recent 2015 (late-summer and early autumn) bycatch rates of darkblotched rockfish in the shoreside Pacific whiting sector have been 3.5 times higher than this time last year. This raised concerns that when the MS fleet returns in October from fishing in Alaska, bycatch rates of darkblotched rockfish would be even higher than they were in summer 2015. At the September meeting, best available information regarding bycatch rates of darkblotched rockfish in the C/P sector indicated that, if those rates continued, the Pacific whiting allocation could be achieved prior to harvesting their 2015 darkblotched rockfish set-aside. However, the Council considered the possibility of sudden, unexpected large bycatch events that occasionally occur in the MS and C/P sectors, and how one or more of those events could dramatically change the bycatch rates of darkblotched rockfish, jeopardizing continuation of their seasons and achievement of their 2015 Pacific whiting allocations.
To maintain 2015 harvest opportunities for the MS and C/P sectors of the Pacific whiting fishery, the Council considered moving darkblotched rockfish quota that would otherwise go unharvested in the incidental open access fishery to the MS and C/P sectors. At the start of 2015 a total of 20.8 mt of darkblotched rockfish was deducted from the ACL, including 18.4 mt of to account for mortality in the incidental open access fishery.
At its September 2015 meeting, the Council considered best available information regarding harvest levels of darkblotched rockfish in the incidental open access fishery to evaluate whether all 18.4 mt would be harvested in 2015, and if any of those fish that would go unharvested and could be transferred to the MS and C/P sectors inseason to allow for continued fishing opportunities in those sectors. Harvest of darkblotched rockfish in the incidental open access fisheries in 2011-2013 was below 6 mt per year, but the best estimate of mortality in 2014 increased to 24 mt. It was hypothesized that the much higher bycatch levels in 2014 may be due to a large 2013 darkblotched rockfish year class being caught in the pink shrimp trawl fishery. There was also anecdotal evidence that the use of light emitting diode (LED) lights had become widespread in the 2015 pink shrimp fishery following a 2014 research study, which could result in a drastic reduction in bycatch of juvenile darkblotched rockfish when LED lights were affixed to the shrimp trawl gear.
Therefore, the Council recommended redistributing 8 mt of darkblotched rockfish, from the “off-the-top” deductions that were made at the start of the 2015-2016 biennium, to the MS and C/P sectors, with no more than 5 mt to either sector, to accommodate potential bycatch of darkblotched rockfish as each sector prosecutes the remainder of their 2015 Pacific whiting allocations.
The Council's recommendation at the September meeting asked NMFS to monitor ongoing MS and C/P fisheries and redistribute darkblotched rockfish based on needs of the at-sea whiting fisheries in an effort prevent closure of those fisheries prior to achieving their respective Pacific whiting allocations. Therefore, this inseason action incorporates updated information on ongoing MS and C/P sector fisheries and on the best available information on how much darkblotched rockfish is anticipated to go unharvested from the off-the-top deductions. According to the best information available on September 29, 2015, observed darkblotched rockfish bycatch rates in the pink shrimp fishery in 2015 were much lower than in 2014, and similar to levels seen in 2011-2013. NMFS projects that the incidental open access fisheries, including the pink shrimp trawl fishery, will harvest 5.7 mt through the end of the year out of the 18.4 mt that was anticipated when the off-the-top deductions were made.
The off-the-top deduction is a sum of anticipated impacts from scientific research activities, EFPs, Tribal fisheries, and incidental open access fisheries. Fish moved from the off-the-top deduction from the ACL and redistributed to other groundfish fisheries must be fish that would otherwise go unharvested through the end of the year. It was not quantitatively demonstrated that the 8 mt of darkblotched rockfish that the Council recommended redistributing to the MS and C/P sectors would otherwise go unharvested. Therefore, NMFS considered the higher than anticipated scientific research catch of darkblotched rockfish along with the lower than anticipated catch of darkblotched rockfish in the incidental open access fisheries in its decision making. When combined with the projected impacts from other components of the off-the-top deductions, including scientific research, EFPs, and tribal fisheries, it is anticipated that approximately 7.4 mt of the 20.8 mt off-the-top deduction will go unharvested through the end of 2015 (13.4 mt harvested out of 20.8 mt). Given this best available information, released after the Council's recommendation was made, NMFS has determined that the full 8 mt that was recommended by the Council cannot be redistributed.
Shortly after the conclusion of the September Council meeting, a bycatch event of darkblotched rockfish occurred in the C/P sectors, increasing the likelihood of early closure of that C/P sector if additional darkblotched rockfish were unavailable. Based on this information, there is need for additional darkblotched rockfish in both the MS and C/P sectors.
Based on the information presented at the September meeting, the Council's recommendation, the best available information on the available amount darkblotched rockfish, and the best available information on bycatch rates in the MS and C/P fisheries, this rule redistributes 7 mt of darkblotched rockfish that is anticipated to go unharvested in the incidental open access fisheries through the end of 2015 to the MS and C/P sectors in equal amounts, 3.5 mt to each sector. To buffer against uncertainty in the estimates, 0.4 mt of darkblotched rockfish will remain in the “off-the-top” deductions. 7 mt of darkblotched rockfish will be distributed equally between the MS and C/P sectors because both fisheries show higher than anticipated bycatch rates this year. If those higher rates continue and no additional darkblotched rockfish is distributed, both sectors are projected to attain their current darkblotched rockfish set-asides of 9.2 mt and 6.5 mt, respectively, before their Pacific whiting allocations are fully harvested.
This rule partially approves the Council's recommendation to provide additional darkblotched that would otherwise go unharvested in 2015. Increasing the darkblotched rockfish set-asides to 10 mt for the MS sector and 12.7 mt for the C/P sector reduces the risk of closure of the MS and C/P sectors prior to full attainment of the Pacific whiting allocation if higher than anticipated bycatch rates of darkblotched rockfish continue late in 2015. Mortality of darkblotched rockfish in the 2015 incidental open access fishery has been lower than anticipated and the projected mortality indicates it will be within the remaining off-the-top deduction after transferring the 7 mt to the MS and C/P sectors. Transfer of darkblotched rockfish to the MS and C/P sectors, when combined with projected impacts from all other sources, is not expected to result in greater impacts to darkblotched rockfish or other overfished species than originally projected through the end of the year.
**Classification**
This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations and the Halibut Act and its implementing regulations.
This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.
The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, West Coast Region, NMFS, during business hours.
NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective October 29, 2015.
At the September 2015 Council meeting, the Council recommended that redistribution of darkblotched rockfish to the MS and C/P sectors be implemented as quickly as possible once a need for additional darkblotched rockfish was identified. Within two weeks of this recommendation, a bycatch event of darkblotched rockfish (4 mt) occurred in the C/P sectors. There was not sufficient time after the September 2015 Council meeting to undergo proposed and final rulemaking before this action needs to be in effect. For the actions implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent transfer of darkblotched rockfish to the MS and C/P sectors until later in the season, or potentially eliminate the possibility or doing so during the 2015 calendar year entirely, and is therefore impractical. Failing to reapportion darkblotched rockfish to the MS and C/P sectors in a timely manner could result in unnecessary restriction of fisheries if the MS or C/P sectors exceeded their darkblotched allocations. Providing the MS and C/P sector fishermen an opportunity to harvest their limits of Pacific whiting without interruption and without exceeding their darkblotched rockfish bycatch limits allows harvest as intended by the Council, consistent with the best scientific information available. The Pacific whiting fishery contributes a large amount of revenue to the coastal communities of Washington and Oregon and this change allows continued harvest of Pacific whiting while continuing to prevent ACLs of overfished species and the allocations for target species from being exceeded. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established for 2015-2016.
Delaying these changes would also keep management measures in place that are not based on the best available information. Such delay would impair achievement of the PCGFMP goals and objectives of managing for appropriate harvest levels while providing for year-round fishing and marketing opportunities.
Accordingly, for the reasons stated above, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.
**List of Subjects in 50 CFR Part 660**
Fisheries, Fishing, and Indian Fisheries.
Dated: October 29, 2015.
Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
**50 CFR Part 660**
**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.,* 16 U.S.C. 773 *et seq.,* and 16 U.S.C. 7001 *et seq.*
**50 CFR Part 660**
2. Tables 1a and 1b to Part 660, Subpart C, are revised to read as follows:
| | OFL | ABC | AC L | Fishery HG |
| --- | --- | --- | --- | --- |
| BOCACCIO S. of 40°10′ N. lat | 1,444 | 1,380 | 349 | 341 |
| CANARY ROCKFISH | 733 | 701 | 122 | 107 |
| COWCOD S. of 40°10′ N. lat | 67 | 60 | 10 | 8 |
| DARKBLOTCHED ROCKFISH | 574 | 549 | 338 | 317 |
| PACIFIC OCEAN PERCH | 842 | 805 | 158 | 143 |
| PETRALE SOLE | 2,946 | 2,816 | 2,816 | 2,579 |
| YELLOWEYE ROCKFISH | 52 | 43 | 18 | 12 |
| Arrowtooth flounder | 6,599 | 5,497 | 5,497 | 3,410 |
| Black rockfish (OR-CA) | 1,176 | 1,124 | 1,000 | 999 |
| Black rockfish (WA) | 421 | 402 | 402 | 388 |
| Cabezon (CA) | 161 | 154 | 154 | 154 |
| Cabezon (OR) | 49 | 47 | 47 | 47 |
| California scorpionfish | 119 | 114 | 114 | 112 |
| Chilipepper S. of 40°10′ N. lat | 1,703 | 1,628 | 1,628 | 1,604 |
| Dover sole | 66,871 | 63,929 | 50,000 | 48,406 |
| English sole | 10,792 | 9,853 | 9,853 | 9,640 |
| Lingcod N. of 40°10′ N. lat | 3,010 | 2,830 | 2,830 | 2,552 |
| Lingcod S. of 40°10′ N. lat | 1,205 | 1,004 | 1,004 | 995 |
| Longnose skate | 2,449 | 2,341 | 2,000 | 1,927 |
| Longspine thornyhead (coastwide) | 5,007 | 4,171 | NA | NA. |
| Longspine thornyhead No. of 34°27′ N. lat | NA | NA | 3,170 | 3,124 |
| Longspine thornyhead S. of 34°27′ N. lat | NA | NA | 1,001 | 998 |
| Pacific Cod | 3,200 | 2,221 | 1,600 | 1,091 |
| Pacific whiting | 804,576 | | | 266,684 |
| Sablefish (coastwide) | 7,857 | 7,173 | NA | NA. |
| Sablefish N. of 36° N. lat | NA | NA | 4,793 | See Table 1c. |
| Sablefish S. of 36° N. lat
. | NA | NA | 1,719 | 1,714 |
| Shortbelly | 6,950 | 5,789 | 500 | 498 |
| Shortspine thornyhead (coastwide) | 3,203 | 2,668 | NA | NA. |
| Shortspine thornyhead N. of 34°27′ N. lat | NA | NA | 1,745 | 1,686 |
| Shortspine thornyhead S. of 34°27′ N. lat | NA | NA | 923 | 881 |
| Spiny dogfish | 2,523 | 2,101 | 2,101 | 1,763 |
| Splitnose S. of 40°10′ N. lat | 1,794 | 1,715 | 1,715 | 1,705 |
| Starry flounder | 1,841 | 1,534 | 1,534 | 1,524 |
| Widow rockfish | 4,137 | 3,929 | 2,000 | 1,880 |
| Yellowtail N. of 40°10′ N. lat | 7,218 | 6,590 | 6,590 | 5,560 |
| Minor Nearshore Rockfish N. of 40°10′ N. lat | 88 | 77 | 69 | 69 |
| Minor Shelf Rockfish N. of 40°10′ N. lat | 2,209 | 1,944 | 1,944 | 1,872 |
| Minor Slope Rockfish N. of 40°10′ N. lat | 1,831 | 1,693 | 1,693 | 1,629 |
| Minor Nearshore Rockfish S. of 40°10′ N. lat | 1,313 | 1,169 | 1,114 | 1,110 |
| Minor Shelf Rockfish S. of 40°10′ N. lat | 1,918 | 1,625 | 1,624 | 1,575 |
| Minor Slope Rockfish S. of 40°10′ N. lat | 813 | 705 | 693 | 673 |
| Other Flatfish | 11,453 | 8,749 | 8,749 | 8,545 |
| Other Fish | 291 | 242 | 242 | 242 |
| Species | Area | Fishery HG or ACT | Trawl | Percent | Mt | Non-trawl | Percent | Mt |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| BOCACCIO | S of 40°10′ N. lat. | 340.7 | N/A | 81.9 | N/A | 258.8 | | |
| CANARY ROCKFISH | Coastwide | 106.8 | N/A | 56.9 | N/A | 49.9 | | |
| COWCOD | S of 40°10′ N. lat. | 4 | N/A | 1.4 | N/A | 2.6 | | |
| DARKBLOTCHED ROCKFISH | Coastwide | 317.2 | 95 | 301.3 | 5 | 15.9 | | |
| PACIFIC OCEAN PERCH | N of 40°10′ N. lat. | 143 | 95 | 135.9 | 5 | 7.2 | | |
| PETRALE SOLE | Coastwide | 2,579.40 | N/A | 2,544.4 | N/A | 35 | | |
| YELLOWEYE ROCKFISH | Coastwide | 12.2 | N/A | 1 | N/A | 11.2 | | |
| Arrowtooth flounder | Coastwide | 3,410 | 95 | 3,239 | 5 | 170 | | |
| Chilipepper | S of 40°10′ N. lat. | 1,604 | 75 | 1,203 | 25 | 401 | | |
| Dover sole | Coastwide | 48,406 | 95 | 45,986 | 5 | 2,420 | | |
| English sole | Coastwide | 9,640 | 95 | 9,158 | 5 | 482 | | |
| Lingcod | N of 40°10′ N. lat. | 2,552 | 45 | 1,148 | 55 | 1,404 | | |
| Lingcod | S. of 40°10′ N. lat. | 995 | 45 | 448 | 55 | 547 | | |
| Longnose skate | Coastwide | 1,927 | 90 | 1,734 | 10 | 193 | | |
| Longspine thornyhead | N of 34°27′ N. lat. | 3,124 | 95 | 2,967 | 5 | 156 | | |
| Pacific cod | Coastwide | 1,091 | 95 | 1,036 | 5 | 55 | | |
| Pacific whiting | Coastside | 266,684 | 100 | 266,684 | 0 | 0 | | |
| Sablefish | N of 36° N. lat. | 0 | See Table 1c | | | | | |
| Sablefish | S of 36° N. lat. | 1,714 | 42 | 720 | 58 | 994 | | |
| Shortspine thornyhead | N of 34°27′ N. lat. | 1,686 | 95 | 1,601 | 5 | 84 | | |
| Shortspine thornyhead | S of 34°27′ N. lat. | 881 | N/A | 50 | N/A | 831 | | |
| Splitnose | S of 40°10′ N. lat. | 1,705 | 95 | 1,619 | 5 | 85 | | |
| Starry flounder | Coastwide | 1,524 | 50 | 762 | 50 | 762 | | |
| Widow rockfish | Coastwide | 1,880 | 91 | 1,711 | 9 | 169 | | |
| Yellowtail rockfish | N of 40°10′ N. lat. | 5,560 | 88 | 4,893 | 12 | 667 | | |
| Minor Shelf Rockfish complex | N of 40°10′ N. lat. | 1,872 | 60.20 | 1,127 | 39.8 | 745 | | |
| Minor Shelf Rockfish complex | S of 40°10′ N. lat. | 1,575 | 12.20 | 192 | 87.8 | 1,383 | | |
| Minor Slope Rockfish complex | N of 40°10′ N. lat. | 1,629 | 81 | 1,319 | 19 | 309 | | |
| Minor Slope Rockfish complex | S of 40°10′ N. lat. | 673 | 63 | 424 | 37 | 249 | | |
| Other Flatfish complex | Coastwide | 8,545 | 90 | 7,691 | 10 | 855 | | |