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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 090428799-9802-01]
          - RIN 0648-BA57

# AGENCY:

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

# ACTION:

Final rule; inseason adjustments to biennial groundfish management measures; request for comments.

# SUMMARY:

This final rule makes inseason adjustments to commercial and recreational fishery management measures for several groundfish species taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.

# DATES:

Effective 0001 hours (local time) March 1, 2011. Comments on this final rule must be received no later than 5 p.m., local time on April 1, 2011.

# ADDRESSES:

You may submit comments, identified by RIN 0648-BA57, by any one of the following methods:
      -  Electronic Submissions:                          Submit all electronic public comments via the Federal eRulemaking Portal:                          http://www.regulations.gov. 
      -  Fax:                          206-526-6736,                          Attn:                          Gretchen Hanshew.                    
      -  Mail:                          William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070,                          Attn:                          Gretchen Hanshew.                    

*Instructions:*                         All comments received are a part of the public record and will generally be posted to                         *http://www.regulations.gov*                         without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.                    

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

# FOR FURTHER INFORMATION CONTACT:

                        Gretchen Hanshew (Northwest Region, NMFS), 206-526-6147,                         *fax:*                         206-526-6736,                         *gretchen.hanshew@noaa.gov.*

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This final rule 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 are available at the Pacific Fishery Management Council's (the Council or PFMC) Web site at                     *http://www.pcouncil.org/​.*

## Background

On December 31, 2008, NMFS published a proposed rule to implement the 2009-2010 specifications and management measures for the Pacific Coast groundfish fishery (73 FR 80516). The final rule to implement the 2009-2010 specifications and management measures for the Pacific Coast Groundfish Fishery was published on March 6, 2009 (74 FR 9874). The final rule was subsequently amended by inseason actions on the following dates: April 27, 2009 (74 FR 19011); July 6, 2009 (74 FR 31874); October 28, 2009 (74 FR 55468); February 26, 2010 (75 FR 8820); May 4, 2010 (75 FR 23620); July 1, 2010 (75 FR 38030); July 16, 2010 (75 FR 41386); August 23, 2010 (75 FR 51684); October 4, 2010 (75 FR 61102); and December 3, 2010 (75 FR 75417). Additional changes to the 2009-2010 specifications and management measures for petrale sole were made in two final rules on November 4, 2009 (74 FR 57117), and December 10, 2009 (74 FR 65480). NMFS also issued a final rule in response to a duly issued court order on July 8, 2010 (75 FR 39178). In addition, NMFS issued two final rules to implement Amendments 20 and 21 to the FMP on October 1, 2010 (75 FR 60868), and December 15, 2010 (75 FR 78344). The October 1, 2010, final rule, in part, re-organized the entire Pacific Coast Groundfish Fishery Regulations. Because of the restructuring, beginning on November 1, 2010, these specifications and management measures are found at 50 CFR part 660, subparts C through G.

                    In June 2010, the Council recommended, and NMFS is working to implement, specifications and management measures for the 2011-2012 biennium. Given the complexity of the biennial specifications and management measures, the need for adequate National Environmental Policy Act documents and public review periods, and competing workloads, NMFS did not have enough time to implement a final rule by January 1, 2011. Unless new management measures are implemented in a separate rulemaking, groundfish specifications and management measures that are in effect at the end of the previous biennial fishing period will remain in effect until they are modified, superseded, or rescinded. On December 30, 2010, NMFS issued an emergency rule to revise some harvest specifications and management measures, including several pieces necessary to sustainably manage the entire fishery and to begin the rationalized trawl fishery (75 FR 82296). Therefore, with the exception of changes implemented in the December 30, 2010, emergency rule, the 2009-2010 harvest specifications are in effect and the management measures that were in place at the end of the 2009-2010 biennium will remain in effect for the start of the 2011 fisheries (                    *e.g.,*                     January-February 2010 trip limits would remain in effect for January-February 2011).                

NMFS raised these issues to the Council at its November 2-9, 2010, meeting in Costa Mesa, California. The Council recommended adjusting the groundfish management measures to respond to updated fishery information and other inseason management needs.

                    The Council considered the most recent 2010 fishery information, relative to 2010 specifications, and recommended inseason modifications                           ( print page 11382)                        appropriate for 2011 to start 2011 fisheries in a manner that would keep catches below 2010 OYs, but would allow harvest opportunities for species with catches tracking below projections during the 2010 fishery. The Council also considered adjustments to early 2011 groundfish management measures to respond to the upcoming new, lower sablefish harvest level for the area north of 36° N. lat. that was implemented by NMFS on December 30, 2010 (75 FR 82296). These changes include: Reduction to cumulative limits in the limited entry fixed gear primary sablefish fishery that operates in the area north of 36° N. lat.; reduction to trip limits for sablefish in the open access fisheries; increases to trip limits for sablefish in the limited entry fixed gear daily trip limit fisheries; and decreasing the groundfish bag limit and modifying the lingcod season start date in Washington recreational fisheries.                

Management measures are designed to meet the FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species, while fostering the rebuilding of overfished stocks by remaining within their rebuilding OYs. All of the fishery mortality early in 2011 will be taken into account during the rest of the year, and will count toward the final harvest specifications that will ultimately be implemented for 2011.

Changes to the groundfish management measures implemented by this action were recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its November 2-10, 2010, meeting in Costa Mesa, CA.

NMFS and the Council, therefore, developed management measures, to be implemented through a routine inseason adjustment, based on the most recent fishery information, to: Manage within the current OYs and the new, lower, sablefish harvest level north of 36° N. lat.

## Sablefish North of 36° N. Lat.

At the Council's November 2010 meeting, NMFS informed the Council that it intended to publish an emergency rule to lower the sablefish harvest level for the area north of 36° N. lat. beginning January 1, 2011 as an interim measure until the final harvest specifications and management measures for 2011 are implemented later in the year. The reduction in the sablefish harvest level was necessary to prevent conservation and management concerns with the issuance of trawl fishery quota pounds. Also, the interim reduction to the harvest level allows NMFS to calculate the fixed gear primary sablefish fishery tier limits for 2011 at a level that will reduce concerns for overfishing. NMFS and the Council developed management measures, to be implemented through this inseason rule based on the most recent fishery information, to manage within the new, lower, sablefish harvest level north of 36° N. lat. As a result, the Council recommended changes to sablefish daily trip limits (DTLs) in the limited entry fixed gear and open access fisheries north of 36° N. lat.

No changes to groundfish fishery harvest specifications, including acceptable biological catches (ABCs), optimum yields (OYs), and harvest guidelines (HGs) are made by this inseason action.

### Limited Entry Fixed Gear Sablefish Primary Fishery North of 36° N. Lat.

As described above, based on the lower interim harvest level for sablefish north of 36° N. lat. that is in place as of January 1, 2011, NMFS is implementing the following decrease in the annual tier limits for sablefish for 2011 and beyond: From Tier 1 at 56,081-lb (25,437 kg), Tier 2 at 25,492-lb (11,562 kg), and Tier 3 at 14,567-lb (6,648 kg); to Tier 1 at 41,379 lb (18,769 kg), Tier 2 at 18,809 lb (8,532 kg), and Tier 3 at 10,748 lb (4,875 kg).

### Sablefish Daily Trip Limit Fishery North of 36° N. Lat.

As described above, based on the reduced sablefish harvest specification for the area north of 36° N. lat., the Council considered modifications to the 2011 sablefish trip limits for the limited entry fixed gear and open access DTL fisheries north of 36° N. lat. at their November 2010 meeting to keep projected impacts within the new, lower harvest specification. In addition to the new sablefish harvest specification, these modifications were also considered in light of the performance of the 2010 fishery, where trip limits were increased inseason because catches during 2010 were lower than anticipated north of 36° N. lat. (75 FR 51684, August 23, 2010). Projected catch of sablefish in the 2011 limited entry fixed gear and open access DTL fisheries north of 36° N. lat. are anticipated to be above their new, lower, 2011 sablefish allocations. Based on the most recent fishery information, if no action is taken the trip limits that were in place in 2010 are left in place for 2011, landings of sablefish through the end of the year are projected to be: 298 mt, or 106 percent of the limited entry fixed gear sablefish DTL fishery allocation of 282 mt; and 536 mt, or 115 percent of the open access fishery sablefish allocation of 464 mt. The Council considered options for trip limit decreases in the limited entry fixed gear and open access sablefish DTL fisheries north of 36° N. lat. to allow these fisheries to still attain their sablefish allocations, while keeping total projected catch below the new, lower 2011 sablefish harvest levels for the area north of 36° N. lat. For the limited entry fixed gear sablefish DTL fishery, the Council considered that weekly trip limits in this fishery appear to have a low impact on total landings, and that the primary control for total landings is tied to the bi-monthly cumulative trip limits. Therefore, the Council considered establishing a weekly limit at a level of no less than 25 percent of the bi-monthly cumulative trip limit so that four trips could achieve the bi-monthly limit. This would improve efficiency and could also improve safety by allowing attainment of the bi-monthly limit in fewer trips if weather is bad.

The overall harvest levels of sablefish in the limited entry fixed gear and open access fisheries north of 36° N. lat. are anticipated to decrease with the changes to the bi-monthly trip limits that are described below. Therefore, projected impacts to co-occurring overfished species in the limited entry fixed gear and open access fisheries are not anticipated to increase. The total projected impacts to darkblotched rockfish in the limited entry fixed gear and open access fisheries are very low.

Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to trip limits in the limited entry fixed gear sablefish DTL fishery north of 36° N. lat.: An increase in the weekly limits north of 36° N. lat. from “1,750 lb per week” to “2,000 lb per week” beginning on March 1 through the end of the year; a decrease in the bi-monthly cumulative trip limits from “8,500 lb per week” to “8,000 lb per week” from July 1 through October 31. See these new limits in Table 2 (North) and 2 (South) to part 660, subpart E.

                    Based on the considerations outlined above, the Council also recommended and NMFS is implementing the following changes to the open access sablefish DTL fishery trip limits north of 36° N. lat.: Increase the weekly limit from “1 landing per week of up to 800 lb” to “1 landing per week of up to 950 lb” from March 1 through June 30; increase the weekly limit from “1 landing per week of up to 950 lb” to “1 landing per week of up to 1,200 lb” from July 1 through the end of the year; decrease the bi-monthly cumulative trip limit from “2,400 lb per 2 months” to “1,900 lb per 2 months” from March 1                           ( print page 11383)                        through June 30; and decrease the bi-monthly cumulative trip limit from “2,750 lb per 2 months” to “2,250 lb per 2 months” from July 1 through the end of the year. See these new limits in Table 3 (North) and 3 (South) to part 660, subpart F.                

## Sablefish DTL Fishery South of 36° N. Lat.

During 2010, catch of sablefish in the limited entry fixed gear and open access DTL fisheries south of 36° N. lat. was higher than anticipated. In September and December 2010, the Council recommended and NMFS implemented decreases to sablefish trip limits in the limited entry fixed gear fishery, and more substantial decreases to the open access sablefish trip limits, including a closure of the sablefish fishery for December 2010 (75 FR 61102, October 4, 2010; 75 FR 75417, December 3, 2010). The changes were anticipated to lower the projected impacts and keep projected impacts within the sablefish OY south of 36° N. lat. At their November 2010 meeting, the Council considered the fishery performance in 2010 where increased effort and fishery participation was seen, particularly in the open access fishery. The Council considered the need for designing trip limits in both the limited entry fixed gear and open access sablefish DTL fisheries for 2011 that are anticipated to keep catch below the sablefish harvest level for south of 36° N. lat. The Council also considered designing trip limits for the two commercial non-trawl sectors that would be anticipated to allow slightly more overall harvest of sablefish by the limited entry fixed gear fishery. In light of the 2010 fishery performance, a restructuring of the sablefish trip limits for the non-trawl commercial fisheries south of 36° N. lat. was designed in an effort to: Balance the higher than anticipated harvest of sablefish by the open access fishery; prevent premature closure of fisheries in 2011 and prevent exceeding the OY.

West Coast Groundfish Observer data indicate that impacts to overfished species in the commercial fixed gear sablefish fisheries south of 36° N. lat. are extremely low. Therefore, decreases to trip limits to keep projected impacts below the 2011 sablefish harvest levels are not anticipated to result in changes to impacts to co-occurring overfished groundfish species.

Based on the considerations outlined above, the Council recommended and NMFS is implementing a restructured and slightly higher weekly trip limit in the limited entry fixed gear sablefish DTL fishery cumulative limits south of 36° N. lat. of “2,100 lb per week” beginning on March 1 through the end of the year.

Based on the considerations outlined above, the Council recommended and NMFS is implementing restrictions to the open access sablefish DTL fishery trip limits south of 36° N. lat. as follows: From “400 lb per day, or 1 landing per week of up to 1,500 lb, not to exceed 8,000 lb per 2 months” to “300 lb per day, or 1 landing per week of up to 1,200 lb, not to exceed 2,400 lb per 2 months” from March 1 through the end of the year.

## Recreational Fishery Management Measures

In June 2010 the Council recommended that NMFS implement several changes to Washington, Oregon, and California's recreational fishery management measures for groundfish for the 2011 and beyond fishing seasons as part of the biennial harvest specifications and management measures process. The 2011-2012 harvest specifications and management measures have been delayed and will not be in place for the start of the 2011 recreational groundfish fisheries. As a result of this delay, the recreational fishery management measures that were implemented during 2010 will remain in place for the start of 2011, until NMFS takes action through a rulemaking to revise them. At their November 2010 meeting, the Council requested that NMFS consider implementing changes to recreational fishery management measures via NMFS' routine inseason management authority, where possible. Regulations at 50 CFR part 660.60(c) describe what types of changes to management measures are designated “routine” for the West Coast groundfish fishery. Not all changes to management measures that were requested by the Council at their November 2010 meeting are implemented in this rule. However, two changes to recreational groundfish fishery management measures are made in this rule and are described below.

During 2010, the Groundfish Management Team, an advisory body to the Council, conducted an analysis of recent Washington recreational fishery data and determined that very few recreational anglers were attaining the 15-fish bag limit for groundfish off the Washington coast. The analysis of 2008 and 2009 data showed that 99.9 percent of anglers were not retaining more than a 12-fish bag limit. To align the recreational groundfish bag limits with recent catches, the Council recommended reducing the recreational groundfish bag limit off Washington from 15 fish to 12 fish, beginning in 2011. Bag limits in the recreational groundfish fisheries are designated as a routine management measure and may be changed rapidly after a single Council meeting, and this change to management measures will maintain consistency with state regulations. Therefore, NMFS is implementing a reduction in the Washington recreational groundfish bag limit from 15 fish to 12 fish, beginning on March 1, 2011.

In recent years the Washington recreational fishery for lingcod in the area between Cape Alava (48°10′ N. lat.) and the Washington/Oregon border (46°16′ N. lat.) (e.g., Marine Areas 1-3) opens each year on the Saturday that falls closest to March 15. A majority of recreational fishing trips off the Washington coast occur on weekends during this time of year. Opening the fishery on a Saturday rather than on a Sunday allows an additional day of lingcod fishing when the seasons for salmon and Pacific halibut are not yet open. During the last three biennial harvest specifications and management measures cycles the season opening dates are simply updated so that the lingcod season opening dates in this area fall on the Saturday that falls closest to March 15. For 2010, the season opening date was March 13 and this is the date that continues to be in the Washington recreational fishery regulations for this area for 2011. Based on a Council recommendation to maintain the Washington recreational lingcod fishing opportunities, the Washington Department of Fish and Wildlife requested that NMFS update the lingcod season start dates for 2011 so that they fall on the Saturday closest to March 15. For 2011, this date is March 12. Changes to recreational fishery seasons are designated as a routine management measure and maybe changed rapidly after a single Council meeting. Therefore, NMFS is implementing a change in the season start date in the Washington recreational fishery for lingcod in Marine Areas 1-3 from March 13 to March 12, beginning on March 1, 2011.

## Classification

This final rule makes routine inseason adjustments to groundfish fishery management measures based on the best available information and is taken pursuant to the regulations implementing the Pacific Coast Groundfish FMP.

                    These actions are taken under the authority of 50 CFR 660.60(c) and are exempt from review under Executive Order 12866.                          ( print page 11384)    

                    These inseason adjustments are taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the FMP. These actions are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (                    *see***ADDRESSES**                    ) during business hours.                

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to biennial groundfish management measures under 5 U.S.C. 553(b)(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 as quickly as possible.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its November 2-10, 2010, meeting in Costa Mesa, CA. The Council recommended that these changes be implemented by January 1, 2011 or as quickly as possible thereafter. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent the Agency from managing fisheries using the best available science to approach, without exceeding, the OYs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California and recreational fisheries off Washington.

Changes to sablefish trip limits for the remainder of the biennial period in the limited entry fixed gear and open access sablefish DTL fisheries and to sablefish cumulative limits in the primary fishery are needed to prevent the 2011 sablefish harvest specifications from being exceeded, coastwide. Changes to trip limits also reduce complexity of the cumulative limit structure and provide year round fishing opportunity. These changes must be implemented in a timely manner by March 1, 2011 because failure to implement trip limit restrictions by March 1, 2011 would risk continued higher than anticipated catch of sablefish in the fishery south of 36° N. lat. These revisions are needed to keep the harvest of groundfish species within the harvest levels in place at the beginning of 2011, while allowing fishermen access to healthy stocks. Without these measures in place, the fisheries could risk exceeding the 2011 sablefish harvest specifications if catch continues to be higher than anticipated, as it was in the open access sablefish DTL fishery south of 36° N. lat. in 2010. Without these measures in place, the fisheries could risk exceeding the 2011 sablefish primary season cumulative limits that are based on the new, lower sablefish harvest levels, which could require restrictions later in the year for fisheries that take sablefish, or risk exceeding the 2011 sablefish harvest specifications. Delaying these changes would keep management measures in place that are not based on the best available data and that could lead to exceeding OYs. Such delay would impair achievement of one of the Pacific Coast Groundfish FMP goals to prevent overfishing and rebuild overfished stocks.

Changes to lingcod season start dates in the Washington recreational fishery opens the lingcod fishery one day earlier and will allow fishermen additional harvest opportunities for lingcod. This change is necessary to relieve a restriction by allowing lingcod harvest opportunities, while staying within OYs. These changes must be implemented in a timely manner, as quickly as possible, so that fishermen are allowed increased opportunities to harvest available healthy stocks and meet the objective of the Pacific Coast Groundfish FMP to allow fisheries to approach, but not exceed, OYs. It would be contrary to the public interest to wait to implement these changes until after public notice and comment, because that would prevent fishermen from taking these fish at the time they are available, preventing additional harvest in fisheries that are important to coastal communities.

Changes to the Washington recreational fishery, management measures are necessary to have consistency between state and Federal regulations.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian Fisheries

Dated: February 25, 2011.

Margo Schulze-Haugen,

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:

# 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 § 660.231 to subpart E, paragraph (b)(3)(i) is revised to read as follows: 

§ 660.231 

* * * * *

(b) * * *

(3) * * *

(i) A vessel participating in the primary season will be constrained by the sablefish cumulative limit associated with each of the permits registered for use with that vessel. During the primary season, each vessel authorized to fish in that season under paragraph (a) of this section may take, retain, possess, and land sablefish, up to the cumulative limits for each of the permits registered for use with that vessel (i.e., stacked permits). If multiple limited entry permits with sablefish endorsements are registered for use with a single vessel, that vessel may land up to the total of all cumulative limits announced in this paragraph for the tiers for those permits, except as limited by paragraph (b)(3)(ii) of this section. Up to 3 permits may be registered for use with a single vessel during the primary season; thus, a single vessel may not take and retain, possess or land more than 3 primary season sablefish cumulative limits in any one year. A vessel registered for use with multiple limited entry permits is subject to per vessel limits for species other than sablefish, and to per vessel limits when participating in the daily trip limit fishery for sablefish under § 660.232, subpart E. For 2011 and beyond, the following annual limits are in effect: Tier 1 at 41,379 lb (18,769 kg), Tier 2 at 18,809 lb (8,532 kg), and Tier 3 at 10,748 lb (4,875 kg).

* * * * *

3. Table 2 (North) and Table 2 (South) to part 660, subpart E, are revised to read as follows: 
      ( print page 11385)          ( print page 11386)          ( print page 11387)          ( print page 11388)    
* * * * *

4. Table 3 (North) and Table 3 (South) to part 660, subpart F, are revised to read as follows: 
      ( print page 11389)          ( print page 11390)          ( print page 11391)          ( print page 11392)    
5. In § 660.360 to subpart G, paragraph (c)(1) introductory text and (c)(1)(iii)(B) are revised to read as follows: 

§ 660.360 

* * * * *

(c) * * *

                            (1)                             *Washington.*                             For each person engaged in recreational fishing off the coast of Washington, the groundfish bag limit is 12 groundfish per day, including rockfish and lingcod, and is open year-round (except for lingcod). In the Pacific halibut fisheries, retention of groundfish is governed in part by annual management measures for Pacific halibut fisheries, which are published in the Federal Register. South of Leadbetter Point, WA to the Washington/Oregon border, when Pacific halibut are                                   ( print page 11393)                                onboard the vessel, no groundfish may be taken and retained, possessed or landed, except sablefish and Pacific cod. The following sublimits and closed areas apply:                        

* * * * *

(iii) * * *

(B) Between 48°10′ N. lat. (Cape Alava) and 46°16′ N. lat. (Washington/Oregon border) (Washington Marine Areas 1-3), recreational fishing for lingcod is open for 2011, from March 12 through October 16.

* * * * *

BILLING CODE 3510-22-P

[FR Doc. 2011-4728 Filed 3-1-11; 8:45 am]

BILLING CODE 3510-22-C