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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 031216314-3314-01; I.D. 092904C]

# AGENCY:

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

# ACTION:

Inseason adjustments to management measures; request for comments.

# SUMMARY:

NMFS announces changes to the commercial and recreational fisheries, and to the commercial fishery′s trawl rockfish conservation areas (RCAs) for the Pacific Coast groundfish fishery.  These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), will allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.

# DATES:

                        Effective 0001 hours (local time) October 1, 2004, until the 2005-06 annual specifications and management measures are effective; unless modified, superseded, or rescinded through a publication in the                         **Federal Register**                        .  Comments on this rule will be accepted through November 1, 2004.                    

# ADDRESSES:

You may submit comments, identified by [092904C], by any of the following methods:
      - E-mail: GroundfishInseason#6.nwr@noaa.gov : identified by the I.D. number in the subject line of the message.                    
      - Federal eRulemaking Portal: http://www.regulations.gov .  Follow the instructions for submitting comments.                    
      - Fax: 206-526-6736
      - Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070; or Rod McInnis, Acting Administrator, Southwest Region, NMFS, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 90802-4213.

# FOR FURTHER INFORMATION CONTACT:

                        Jamie Goen (Northwest Region, NMFS), phone: 206-526-4646; fax: 206-526-6736; and e-mail:                         *jamie.goen@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This                     **Federal Register**                     document is available on the Government Printing Office′s website at:                     *www.gpoaccess.gov/​fr/​index.html*.                

                    Background information and documents are available at the NMFS Northwest Region website at:                     *www.nwr.noaa.gov/​1sustfsh/​gdfsh01.htm*                     and at the Pacific Fishery Management Council′s website at:                     *www.pcouncil.org*.                

## Background

                    The Pacific Coast Groundfish FMP and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California.  Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Pacific Council), and are implemented by NMFS.  The specifications and management measures for the 2004 fishing year (January 1 - December 31, 2004) were initially published in the                     **Federal Register**                     as an emergency rule for January 1 - February 29, 2004 (69 FR 1322, January 8, 2004) and as a proposed rule for March 1 - December 31, 2004 (69 FR 1380, January 8, 2004).  The emergency rule was amended at 69 FR 4084, January 28, 2004, and the final rule for March 1 - December 31, 2004 was published in the                     **Federal Register**                     on March 9, 2004 (69 FR 11064), and subsequently amended at 69 FR 23440 (April 29, 2004), 69 FR 23667 (April 30, 2004), 69 FR 25013 (May 5, 2004), 69 FR 28086 (May 18, 2004), 69 FR 38857 (June 29, 2004), and at 69 FR 40805 (July 7, 2004).  In addition, an emergency rule establishing routine management measure authority, under the Pacific Coast Groundfish FMP, to close the Pacific whiting (whiting) primary season fisheries by sector before the sector′s whiting allocation is reached in order to minimize impacts on overfished species was implemented at 69 FR 46448 (August 3, 2004).                

The following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Indian Tribes and the states of Washington, Oregon, and California, at its September 12-17, 2004, meeting in San Diego, CA.  Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to trip limits or management measures will be made as necessary to allow achievement of, or to avoid exceeding the 2004 optimum yields (OYs).

                    In the May inseason action (69 FR 25013, May 5, 2004)  NMFS provided additional fishing opportunity for the northern limited entry trawl fleet, which had been severely restricted to reduce the incidental catch of canary rockfish, by reducing the size of the trawl rockfish conservation area (the area closed to fishing for groundfish with trawl gear) or RCA, between the U.S. border with Canada and 40°10′ N. lat.  The western, seaward boundary of the trawl RCA was moved from specific latitude and longitude coordinates approximating the 200-fm (366-m) depth contour to specific latitude and longitude coordinates approximating the 150-fm (274-m) depth contour.  The reduction in the size of the trawl RCA for the remainder of the year was possible because new observer data indicated that the catch of overfished species, specifically darkblotched rockfish, was lower than predicted in this area.  Darkblotched rockfish is a slope species that commonly inhabit waters between approximately 100 fm (183 m) and 220 fm (402 m).  Additionally, canary rockfish are most commonly found in waters 50 fm (91 m) to 150 fm (274 m) in depth.  Therefore, the reduction in the size of the trawl RCA was not predicted to result in                           ( print page 59817)                        increased catch of canary rockfish nor was it predicted to cause any overfished groundfish species OY to be exceeded.  In addition, after taking into account the updated trawl bycatch model results, which incorporated new observer data and considered the smaller trawl fleet after the trawl buyback, and landed catch data through the end of February 2004, limited entry trawl trip limits for certain deepwater, slope species were increased for the remainder of the year in the May inseason action.                

However, at the Pacific Council September 12-17, 2004, meeting, concern that the total mortality of canary and darkblotched rockfish would exceed their 2004 OYs before the end of the year resulted in the Pacific Council recommending inseason adjustments that are intended to drastically reduce the total mortality of these species.  For darkblotched rockfish, the landed non-whiting commercial catch of darkblotched rockfish through August was 159.6 mt (161 mt landed catch reported in PacFIN on September 4, 2004, minus 0.7 mt for the shoreside whiting fishery catch minus 0.7 mt for EFP catch).  When a discard proportion of 33 percent was applied to the landed catch value, based on the amount of landings and estimated discard in 2003, the estimated total non-whiting commercial catch of darkblotched rockfish through August was 238.2 mt.  When the total mortality was projected through the end of the year under existing management measures and when combined with the estimated mortalities in other fisheries, the total mortality estimate for darkblotched rockfish in 2004 was 374 mt.  The 2004 OY was set equal to the acceptable biological catch (ABC) of 240 mt; therefore, if no inseason action is taken, the total mortality estimate would be 134 mt over the ABC.  This high total mortality estimate is assumed to be partially due to the inseason actions taken in May to reduce the size of the RCA and to increase the minor slope rockfish and splitnose trip limits.  In order to reduce additional take over the 2004 ABC/OY of 240 mt to near zero, this document announces inseason actions to revise existing management measures for darkblotched rockfish.  The primary action to protect darkblotched rockfish is to extend the seaward boundary of the trawl RCA to eliminate trawling in areas where darkblotched are likely to occur.  As an added precaution, the Council recommended decreases in trip limits for species that are known to co-occur with darkblotched.  The Council recommended increasing trip limits to allow harvest of more abundant stocks for species and/or in areas which are not expected to increase mortality of darkblotched rockfish.  Finally the Council recommended closure of the mothership whiting fishery, and implementation of a bycatch cap on the amount of darkblotched that can be taken by the whiting fishery, as described below.  The Council did not recommend changes to the fixed gear and open access non-trawl fisheries or the recreational fishery to protect darkblotched rockfish, because these fisheries have minimal take of darkblotched rockfish.

The total commercial canary rockfish mortality is estimated to be 16.3 mt through August.  When the total mortality of canary rockfish was projected through the end of the year under existing management measures and when combined with the estimated mortalities in other fishery sectors, the total mortality of canary rockfish was estimated to be 54.7 mt.  Therefore, if no inseason action is taken, the total mortality estimate would be 7.4 mt over the 2004 OY of 47.3 mt.  In order to minimize the amount of take over the 2004 OY of 47.3 mt, this document announces inseason actions to revise existing management measures to reduce additional mortality of canary rockfish.

Because of the total mortality projections for darkblotched and canary rockfish, the Pacific Council recommended changes to the trawl rockfish conservation areas (RCAs) coastwide, adjustments to trip limits, non-retention of darkblotched rockfish and canary rockfish in all commercial non-whiting fisheries, and restrictions on Pacific whiting fisheries.  These inseason adjustments are expected to reduce the total mortality of darkblotched and canary rockfish, bringing the total mortality of darkblotched rockfish to as close to zero as possible for the remainder of the year and the total mortality of canary rockfish down to keep it within the biological requirements of the rebuilding plan.  With the inseason actions described in detail below, the projected total mortality through the end of the year for darkblotched rockfish was reduced by 91.5 mt, but is still projected to be 42.5 mt over the ABC/OY of 240 mt.  The projected total mortality through the end of the year for canary rockfish was reduced by 7.1 mt and is projected to be 0.3 mt over the OY of 47.3 mt.  [Note: Recreational fisheries take smaller canary rockfish than the commercial fisheries.  Therefore, harvest in the recreational fishery results in greater per-ton impact on the canary rockfish stock over the rebuilding period than harvest in the commercial fishery.  Therefore, the numerical OY calculated under the rebuilding plan will differ depending on how much harvest is anticipated to be taken in the commercial fishery and how much is anticipated to be taken in the recreational fishery.  If the 2004 OY for canary rockfish were recalculated under the rebuilding plan based on the current estimates of recreational and commercial harvest, the canary OY would be approximately 49 mt., rather than the current 47.3 mt.  However, NMFS is not revising the OY, but notes that while the fishery is currently projected to exceed the 2004 canary OY by 0.3 mt, the projected harvest is still within the biological parameters of the rebuilding plan. See the preamble to the 2004 specifications and management measures proposed rule for more information, 69 FR 1380, January 8, 2004.]

## Trawl RCAs Coastwide

To minimize the commercial catch of darkblotched rockfish for the remainder of the year, the Pacific Council recommended that the seaward trawl RCA boundary move from specific latitude and longitude coordinates approximating the 150-fm (274-m) depth contour to the 250-fm (457-m) depth contour between the U.S./Canada border and 38° N lat. and that the seaward boundary move from specific latitude and longitude coordinates approximating the 150-fm (274-m) depth contour to the 200-fm (366-m) depth contour between 38° N. lat. and 36° N. lat.  The seaward boundary will remain at specific latitude and longitude coordinates approximating the 150-fm (274-m) depth contour between 36° N. lat. and the U.S./Mexico border for the remainder of the year.  Additionally, the 250-fm (457-m) line North of 38° N. lat. will not include previously scheduled modifications to open petrale fishing areas in Period 6 (November-December).  Moving the seaward boundary line of the RCAs in these areas and not allowing access to petrale fishing grounds is expected to reduce any additional mortality of darkblotched rockfish for the remainder of the year to near zero.

To minimize the commercial catch of canary rockfish for the remainder of the year, the Pacific Council recommended that the shoreward trawl RCA boundary be moved to the shoreline coastwide, except for minor exceptions for the open access trawl fleet described below.

                    By moving the trawl RCA boundary to the shoreline, trawl fishing on the shelf shoreward of the RCA is eliminated,                           ( print page 59818)                        making differential trip limits for large and small footrope unnecessary for the remainder of 2004.  Therefore, the limited entry trawl trip limits described below apply regardless of footrope gear fished.                

In addition, California Department of Fish and Game has provided coordinates for the RCA boundary points approximating the 150-fm (274-m) depth contour and the 200-fm (366-m) depth contour at 36° N. lat.  These additional coordinates draw the line of the seaward boundary of the RCA at 36° N. lat. from a boundary line approximating the 200-fm (366-m) depth contour to a boundary line approximating the 150-fm (274-m) depth contour in order to protect darkblotched rockfish.

## Limited Entry Trawl Trip Limit Adjustments

Retention of darkblotched rockfish and canary rockfish will be prohibited in the limited entry non-whiting trawl fisheries for the remainder of 2004.  In addition, the Pacific Council recommended changes to limited entry trawl trip limits intended to provide opportunity to harvest more abundant stocks while minimizing impacts to darkblotched rockfish.  As mentioned previously, differential trip limits between small and large footrope have been removed because trawling will be prohibited in the areas shoreward of the trawl RCA, which had lower limits for small footrope.  Therefore, all differential trip limits have been either changed or adjusted to match the large footrope limits. [Note:  Some trip limits will be increases or decreases implemented mid-cumulative limit period (i.e., October 1 for the September through October cumulative limit period).  For trip limits that are increasing mid-cumulative limit period, vessels may land up to the increased amount (i.e., if the limit was previously 15,000 lb (6,804 kg) per 2-month period for September through October and is being raised to 17,000 lb (7,711 kg) per 2-month period beginning October 1, vessels that have already landed 15,000 lb (6,804 kg) before October 1 could take an additional 2,000 lb (907 kg)).  Trip limits for the following species will be reductions implemented mid-cumulative limit period (i.e., October 1 for the September through October cumulative limit period).  North of 40°10′ N. lat., minor shelf and widow rockfish, yellowtail rockfish and lingcod will be reduced mid-cumulative limit period.  South of 40°10′ N. lat., bocaccio and lingcod will be reduced mid-cumulative limit period.  For enforcement purposes, if a vessel has already landed the higher cumulative limits for these species between September 1 through 30, that vessel will be in compliance with the regulations, but may not land any additional fish under those limits for the remainder of the cumulative limit period.  If a vessel did not land the higher cumulative limits for these species between September 1 through 30 and has an amount remaining to be landed that is less than the lower cumulative trip limits in place beginning October 1, that vessel may land additional fish so that the total caught from September 1 through October 31 does not exceed the reduced cumulative trip limits.]

North of 40°10′ N. lat., trip limits will be changed as follows:

(1) Trip limits for minor slope rockfish for November through December will be decreased from 8,000 lb (3,629 kg) per two-month period to 1,800 lb (816 kg) per 2-month period.  This change is intended to reduce the take of darkblotched rockfish which co-occurs with slope species (darkblotched rockfish had previously been included in the minor slope trip limits).

(2) Previously scheduled trip limits for sablefish for September through October were 15,000 lb (6,804 kg) per 2-month period for large footrope and 10,000 lb (4,536 kg)  per 2-month period for small footrope.  Previously scheduled trip limits for sablefish for November through December were 11,000 lb (4,990 kg) per 2-month period for large footrope and 5,000 lb (2,268 kg) per 2-month period for small footrope.  Sablefish trip limits will be increased for October through December to 17,000 lb (7,711 kg) per 2-month period for both large and small footrope combined.  This change is intended to allow harvest opportunity on more abundant species in areas where additional mortality of darkblotched rockfish is reduced to near zero.

(3) Previously scheduled trip limits for longspine thornyheads for September through December were 18,000 lb (8,165 kg) per 2-month period for large footrope and 1,000 lb (454 kg) per 2-month period for small footrope.  Longspine thornyheads trip limits will be increased for October through December to 18,000 lb (8,165 kg) per 2-month period for both large and small footrope combined.  This change is intended to allow harvest opportunity on more abundant species in areas where additional mortality of darkblotched rockfish is reduced to near zero.

(4) Previously scheduled trip limits for shortspine thornyheads for September through October were 4,100 lb (1,860 kg) per 2-month period for large footrope and 3,000 lb (1,361 kg) per 2-month period for small footrope.  Previously scheduled trip limits for shortspine thornyheads for November through December were 4,100 lb (1,860 kg) per 2-month period for large footrope and 1,000 lb (454 kg) per 2-month period for small footrope.  Shortspine thornyhead trip limits will be increased for October through December to 5,100 lb (2,313 kg) per two month period for both large and small footrope combined.  This change is intended to allow harvest opportunity on more abundant species in areas where additional mortality of darkblotched rockfish is reduced to near zero.

(5) Previously scheduled trip limits for Dover sole for September through October were 31,000 lb (14,061 kg) per 2-month period for large footrope and 27,000 lb (12,247 kg) per 2-month period for small footrope.  Previously scheduled trip limits for Dover sole for November through December were 50,000 lb (22,680 kg) per 2-month period for large footrope and 18,000 lb (8,165 kg) per 2-month period for small footrope.  Dover sole trip limits will be increased for October through December to 40,000 lb (18,144 kg) per 2-month period for both large and small footrope combined.  This change is intended to allow harvest opportunity on more abundant species in areas where additional mortality of darkblotched rockfish is reduced to near zero.

(6) Previously scheduled trip limits for all other flatfish and rex sole for large footrope gear during November through December were 100,000 lb (45,359 kg) per 2-month period and for Petrale sole was unlimited.  Previously scheduled trip limits for all other flatfish, Petrale sole, and rex sole for small footrope gear during November through December were 70,000 lb (31,752 kg) per 2-month period, no more than 20,000 lb (9,072 kg) of which may be Petrale sole.  All other flatfish, Petrale sole, and rex sole trip limits will be changed for November through December to 100,000 lb (45,359 kg) per 2-month period for both large and small footrope combined.  This change is intended to reduce potential discard of groundfish that might be associated with flatfish fisheries.

                    (7) Previously scheduled trip limits for arrowtooth flounder for large footrope gear during November through December was unlimited and for small footrope gear was 8,000 lb (3,629 kg) per 2-month period.  Arrowtooth flounder trip limits will be changed for November through December to 100,000 lb (45,359 kg) per two month period for both large and small footrope combined.                           ( print page 59819)                         This change is intended to reduce potential discard of groundfish that might be associated with flatfish fisheries.                

(8) Previously scheduled trip limits for minor shelf rockfish and widow rockfish taken with large footrope gear for October through December were 300 lb (136 kg) per 2-month period.  Previously scheduled trip limits for minor shelf rockfish and widow rockfish taken with small footrope gear for September through October were 1,000 lb (454 kg) per month, no more than 200 lb (91 kg) per month of which may be yelloweye rockfish and for November through December were 300 lb (136 kg) per month.  Minor shelf rockfish and widow rockfish will be 300 lb (136 kg) per 2-month period for October through December for both small footrope and large footrope combined.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(9) Trip limits for canary rockfish with small footrope gear for October through December were 100 lb (45 kg) per month and will now be closed.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(10) Previously scheduled trip limits for yellowtail rockfish with small footrope gear for October through December were, “In landings without flatfish, 1,000 lb (454 kg) per month.  As flatfish bycatch, per trip limit is the sum of 33 percent (by weight) of all flatfish except arrowtooth flounder, plus 10 percent (by weight) of arrowtooth flounder.  Total yellowtail landings not to exceed 10,000 lb (4,536 kg) per 2-month period, no more than 1,000 lb (454 kg) per month of which may be landed without flatfish.”  This trip limit will now be closed for October through December.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(11) Trip limits for minor nearshore rockfish with small footrope gear for October through December were 300 lb (136 kg) per month and will now be closed.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(12) Previously scheduled trip limits for lingcod with large footrope gear was 500 lb (227 kg) per 2-month period for September through December and with small footrope gear was 800 lb (363 kg) per 2-month period.  Lingcod trip limits for large and small footrope combined will be 500 lb (227 kg) per 2-month period for October through December.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

South of 40°10′ N. lat., trip limits will be changed as follows:

(1) Trip limits for minor slope rockfish for November through December between 40°10′ N. lat and 38° N. lat. will be decreased from 50,000 lb (22,680 kg) per 2-month period to 10,000 lb (4,536 kg) per 2-month period.  Trip limits for minor slope rockfish south of 38° N. lat. will remain at 50,000 lb (22,680 kg) per 2-month period.  This change is intended to reduce the take of darkblotched rockfish which co-occurs with slope species (darkblotched rockfish had previously been included in the minor slope trip limits).

(2) Trip limits for splitnose for November through December between 40°10′ N. lat and 38° N. lat. will be decreased from 50,000 lb (22,680 kg) per two month period to 10,000 lb (4,536 kg) per 2-month period.  Trip limits for splitnose south of 38° N. lat. will remain at 50,000 lb (22,680 kg) per 2-month period.  This change is intended to reduce the take of darkblotched rockfish which co-occurs with splitnose.

(3) Sablefish trip limits will be increased for October through December from 13,000 lb (5,897 kg) per 2-month period to 17,000 lb (7,711 kg) per 2-month period.  This change is intended to allow harvest opportunity on more abundant species in areas where additional mortality of darkblotched rockfish is reduced to near zero.

(4) Shortspine thornyhead trip limits will be increased for October through December from 4,100 lb (1,860 kg) per 2-month period to 5,100 lb (2,313 kg) per 2-month period.  This change is intended to allow harvest opportunity on more abundant species in areas where additional mortality of darkblotched rockfish is reduced to near zero.

(5) Dover sole trip limits will be decreased for November through December from 49,000 lb (22,226 kg) per 2-month period to 48,000 lb (21,772 kg) per 2-month period.  This change is intended to reflect the harvest ratios of DTS (Dover sole, thornyheads, sablefish) complex species and to allow harvest opportunity on more abundant DTS species in areas where additional mortality of darkblotched rockfish is reduced to near zero

(6) Previously scheduled trip limits for all other flatfish and rex sole during November through December were 120,000 lb (54,431 kg) per two month period and for Petrale sole was unlimited.  All other flatfish, Petrale sole, and rex sole trip limits will be decreased for November through December to 120,000 lb (54,431 kg) per two month period, no more than 100,000 lb (45,359 kg) per two month period of which may be Petrale sole.  This change is intended to reduce potential discard of groundfish that might be associated with flatfish fisheries.

(7) Arrowtooth flounder trip limits will be decreased for November through December from unlimited to 100,000 lb (45,359 kg) per 2-month period.  This change is intended to reduce potential discard of groundfish that might be associated with flatfish fisheries.

(8) Previously scheduled trip limits for minor shelf rockfish, widow rockfish, and chilipepper rockfish with small footrope gear for October through December was 1,000 lb (454 kg) per month, no more than 200 lb (91 kg) per month of which may be minor shelf and widow rockfish.  Minor shelf rockfish will be a combined midwater, small and large footrope limit of 300 lb (136 kg) per month (equivalent to the previous large and midwater trip limit).  Chilipepper rockfish will be a combined midwater, small and large footrope limit of 8,000 lb (3,629 kg) per 2-month (equivalent to the previous large and midwater trip limit) and widow rockfish will be closed for all trawl gear.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(9) Previously scheduled trip limits for bocaccio for October through November using large footrope gear was 300 lb (136 kg) per 2-month period and using small footrope gear was closed.  Trip limits for bocaccio for October through December will now be 300 lb (136 kg) per 2-month period for both large and small footrope combined.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(10) Trip limits for canary rockfish with small footrope gear for October through December were 100 lb (45 kg) per month and will now be closed.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.
      ( print page 59820)    
(11)  Trip limits for minor nearshore rockfish with small footrope gear for October through December were 300 lb (136 kg) per month and will now be closed.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

(12) Previously scheduled trip limits for lingcod with large footrope gear was 500 lb (227 kg) per 2-month period for September through December and with small footrope gear was 800 lb (363 kg) per two month period.  Lingcod trip limits for large and small footrope combined will be 500 lb (227 kg) per 2-month period for October through December.  This change is intended to make small footrope limits match large footrope limits since nearshore small footrope opportunities will no longer be available.

## Limited Entry Trawl Pacific Whiting Fishery

At its June meeting, in response to the elevated catches of canary rockfish in the whiting fishery, the Council requested that NMFS implement an emergency rule that allows appropriate sectors of the commercial whiting fishery to be closed if the canary rockfish impacts reach 7.3 mt.  Regulations at 50 CFR 660.323 (b)(ii) were revised on August 3, 2004 (69 FR 46448) by an emergency rule that established routine management measure authority to close the whiting primary season fisheries by sector before the sector′s whiting allocation is reached, to minimize impacts on overfished species.  This regulatory mechanism can be used to quickly close the commercial whiting primary season fisheries if NMFS estimates that the incidental catch of an overfished species is too high.

Initially, the Council requested that NMFS close the appropriate sectors of the commercial whiting fishery if the canary rockfish impacts reach 7.3 mt.  However, at their September meeting, concerns about the total catch of canary and darkblotched rockfish by all commercial sectors resulted in the Council recommending that the mothership sector of the fishery, which has already stopped fishing, be closed on October 1, 2004.  In addition, if the total catch in all whiting fisheries reaches 6.2 mt of canary rockfish or 9.5 mt of darkblotched rockfish, the Council recommended that the catcher processor sector be closed.  The shore-based sector was closed on August 14, 2004.

At the Pacific Council′s September meeting, the Council initially considered recommending a closure of all whiting fisheries or moving the fishery outside of 250 fathoms, effective October 1, 2004, in order to protect darkblotched rockfish.  While the mothership sector was not expected to continue fishing in September, the catcher-processor sector would continue to fish.  Recommending a full or partial closure on October 1, 2004, would create an incentive to catch the remaining whiting allocation as fast as possible with little or no concern over the additional canary or darkblotched rockfish taken.  The representatives of the catcher-processor sector asked the Council to institute a bycatch cap, rather than to close the fishery.  They proposed the cap be the total amount projected to be harvested by the fleet by October 1, 2004, the planned date of the closure.  They believe they can control the fishery to avoid reaching the cap which would allow them to take their allocation without increasing the harvest of darkblotched above what was projected to be taken by October 1, 2004.  The catcher-processor sector of this fishery has two observers on each vessel, and provides real-time data to NMFS.  Therefore, the bycatch cap in this fishery is possible.  Implementing bycatch caps in a fishery that is monitored and has real time data creates an incentive to fish carefully and in areas where they won′t take species of concern.  Thus, while this fishery will be open longer than it would have been had it been closed on October 1, 2004, this action is not projected to result in additional mortality to darkblotched rockfish above what was anticipated by October 1, 2004.

                    NMFS plans to use the regulatory authority at 50 CFR 660.323 (b)(1)(ii), if appropriate, to close the primary whiting fisheries through a routine management measure as recommended by the Council.  That is, if NMFS estimates, using the best available data, that 6.2 mt of canary rockfish or 9.5 mt of darkblotched rockfish have been taken in the 2004 whiting fisheries, NMFS will take inseason action and publish a                     **Federal Register**                     document to close the catcher-processor sector of the whiting fishery.                

Industry representatives attending the September meeting pledged to avoid areas known for bycatch of canary and darkblotched rockfish and to monitor and voluntarily close the fishery if any of these catch limits were reached.  Additionally, the Pacific Council requested that the Pacific whiting fishery voluntarily remain in areas deeper than 150 fathoms to minimize interactions with canary rockfish.

## Limited Entry Fixed Gear Trip Limit Adjustments

The Pacific Council recommended changes to the limited entry fixed gear trip limits.  Retention of darkblotched rockfish is prohibited in the limited entry fixed gear fisheries for the remainder of 2004.  North of 40°10′ N latitude, beginning November 1, 2004, the trip limit for shortspine thornyheads will be reduced from 2,100 lb (953 kg) per 2-month period to 2,000 lb (907 kg) per 2-month period.  This change is intended to make trip limits North of 40°10′ N. lat. match limits south of 40°10′ N. lat. for ease of enforcement and to reduce regulatory complexity.  Between 40°10′ N. lat. and 38° N. lat., beginning November 1, 2004, the trip limits for both minor slope rockfish and splitnose rockfish will be reduced from 50,000 lb (22,680 kg) per 2-month period to 10,000 lb (4,536 kg) per 2-month period.  South of 38° N. lat., the trip limits for both minor slope rockfish and splitnose rockfish will remain at 50,000 lb (22,680 kg) per 2-month period.  This change is intended to reduce the take of darkblotched rockfish in areas where it co-occurs with slope species and where it had been included in the minor slope trip limits.

## Open Access Non-Retention and Trawl RCA

                    Retention of darkblotched rockfish is prohibited in the open access fisheries for the remainder of 2004.  Due to low estimated impacts to canary rockfish and darkblotched rockfish, the Pacific Council recommended that exempted trawl fisheries in the open access sector which target sea cucumbers, California halibut, and ridgeback prawns continue to have access to nearshore areas as follows.  Between 40°10′ N. lat. and 34°27′ N. lat., allow sea cucumber and California halibut trawl fisheries shoreward of an RCA boundary approximating the 30-fm (55-m) depth contour beginning October 1.  Ridgeback prawn will be subject to the trawl RCA restrictions in this area, which will be closed to the shoreline between 40°10′ N. lat. and 34°27′ N. lat.  Between 34°27′ N. lat. and the U.S./Mexico border, allow exempted trawl fisheries for sea cucumbers, California halibut, and ridgeback prawns shoreward of an RCA boundary approximating the 75-fm (137-m) depth contour as previously scheduled.  In addition, the Pacific Council recommended no retention of rockfish in these fisheries for the remainder of the year in order to eliminate any incentive to target nearshore rockfish species which might increase mortality of canary rockfish.                           ( print page 59821)                         These depth and landing restrictions are intended to minimize additional mortality of canary and darkblotched rockfish by constraining the fishery to areas with low abundance of these species.                

## Oregon Recreational Fishery Adjustments

Oregon Department of Fish and Wildlife (ODFW) manages their recreational groundfish fisheries with “harvest caps” for black rockfish, blue rockfish, nearshore rockfish, cabezon and greenling.  Harvest caps are defined as the total catch for a given species, or species group, that may be taken in a single calendar year by the ocean boat fishery.  Effective August 18, 2004, the cabezon harvest cap of 15.8 mt was projected to be reached and retention of cabezon was prohibited.  Effective September 3, 2004, the greenling and rockfish harvest caps (5.2 mt for greenling, 11.2 mt for nearshore rockfish and 382.5 mt for black and blue rockfish) were projected to be reached and retention of all rockfish, lingcod, and greenling were prohibited.  In an effort to allow some recreational fisheries with minimal impact to canary rockfish to operate, ODFW is allowing retention of yellowtail rockfish taken seaward of a boundary line approximating the 40-fm (73-m) depth contour from October 1 through October 31, 2004.  In addition, there will be continued access off Oregon for sablefish, flatfish and any groundfish not currently prohibited by state law in the area inside of a boundary line approximating the 40-fm (73-m) depth contour for the remainder of the year and both inside and outside of this same area through October 31, 2004.  As recommended by the Pacific Council, NMFS will adjust Federal recreational groundfish regulations off Oregon to conform with ODFW regulations.

## NMFS Actions

For the reasons stated herein, NMFS concurs with the Pacific Council′s recommendations and hereby announces the following changes to the 2004 specifications and management measures (69 FR 11064, March 9, 2004), as amended at 69 FR 23440 (April 29, 2004), 69 FR 23667 (April 30, 2004), 69 FR 25013 (May 5, 2004), 69 FR 28086 (May 18, 2004), 69 FR 38857 (June 29, 2004), and at 69 FR 40805 (July 7, 2004), to read as follows:

1.  On pages 11099-11100, in section IV. NMFS Actions, under A. General Definitions and Provisions, paragraph (17)(ix) is revised to read as follows:

* * * * *

(223) 36°00.00′ N. lat., 121°35.15′ W. long.;

(224) 35°57.74′ N. lat., 121°33.45′ W. long.;

(225) 35°51.32′ N. lat., 121°30.08′ W. long.;

(226) 35°45.84′ N. lat., 121°28.84′ W. long.;

(227) 35°38.94′ N. lat., 121°23.16′ W. long.;

(228) 35°26.00′ N. lat., 121°08.00′ W. long.;

(229) 35°07.42′ N. lat., 120°57.08′ W. long.;

(230) 34°42.76′ N. lat., 120°55.09′ W. long.;

(231) 34°37.75′ N. lat., 120°51.96′ W. long.;

(232) 34°29.29′ N. lat., 120°44.19′ W. long.;

(233) 34°27.00′ N. lat., 120°40.42′ W. long.;

(234) 34°21.89′ N. lat., 120°31.36′ W. long.;

(235) 34°20.79′ N. lat., 120°21.58′ W. long.;

(236) 34°23.97′ N. lat., 120°15.25′ W. long.;

(237) 34°22.11′ N. lat., 119°56.63′ W. long.;

(238) 34°19.00′ N. lat., 119°48.00′ W. long.;

(239) 34°15.00′ N. lat., 119°48.00′ W. long.;

(240) 34°08.00′ N. lat., 119°37.00′ W. long.;

(241) 34°08.39′ N. lat., 119°54.78′ W. long.;

(242) 34°07.10′ N. lat., 120°10.37′ W. long.;

(243) 34°10.08′ N. lat., 120°22.98′ W. long.;

(244) 34°13.16′ N. lat., 120°29.40′ W. long.;

(245) 34°09.41′ N. lat., 120°37.75′ W. long.;

(246) 34°03.15′ N. lat., 120°34.71′ W. long.;

(247) 33°57.09′ N. lat., 120°27.76′ W. long.;

(248) 33°51.00′ N. lat., 120°09.00′ W. long.;

(249) 33°38.16′ N. lat., 119°59.23′ W. long.;

(250) 33°37.04′ N. lat., 119°50.17′ W. long.;

(251) 33°42.28′ N. lat., 119°48.85′ W. long.;

(252) 33°53.96′ N. lat., 119°53.77′ W. long.;

(253) 33°59.94′ N. lat., 119°19.57′ W. long.;

(254) 34°03.12′ N. lat., 119°15.51′ W. long.;

(255) 34°01.97′ N. lat., 119°07.28′ W. long.;

(256) 34°03.60′ N. lat., 119°04.71′ W. long.;

(257) 33°59.30′ N. lat., 119°03.73′ W. long.;

(258) 33°58.87′ N. lat., 118°59.37′ W. long.;

(259) 33°58.08′ N. lat., 118°41.14′ W. long.;

(260) 33°50.93′ N. lat., 118°37.65′ W. long.;

(261) 33°39.54′ N. lat., 118°18.70′ W. long.;

(262) 33°35.42′ N. lat., 118°17.14′ W. long.;

(263) 33°32.15′ N. lat., 118°10.84′ W. long.;

(264) 33°33.71′ N. lat., 117°53.72′ W. long.;

(265) 33°31.17′ N. lat., 117°49.11′ W. long.;

(266) 33°16.53′ N. lat., 117°36.13′ W. long.;

(267) 33°06.77′ N. lat., 117°22.92′ W. long.;

(268) 32°58.94′ N. lat., 117°20.05′ W. long.;

(269) 32°55.83′ N. lat., 117°20.15′ W. long.;

(270) 32°46.29′ N. lat., 117°23.89′ W. long.;

(271) 32°42.00′ N. lat., 117°22.16′ W. long.;

(272) 32°39.47′ N. lat., 117°27.78′ W. long.; and

(273) 32°34.83′ N. lat., 117°24.69′ W. long.

* * * * *

2.  On pages 11102-11103, in section IV. NMFS Actions, under A. General Definitions and Provisions, paragraph (17)(xi) is revised to read as follows:

* * * * *

(210) 36°00.00′ N. lat., 121°36.95′ W. long.;

(211) 35°57.07′ N. lat., 121°34.32′ W. long.;

(212) 35°52.31′ N. lat., 121°32.45′ W. long.;

(213) 35°51.21′ N. lat., 121°30.91′ W. long.;

(214) 35°46.32′ N. lat., 121°30.30′ W. long.;

(215) 35°33.74′ N. lat., 121°20.10′ W. long.;

(216) 35°31.37′ N. lat., 121°15.23′ W. long.;

(217) 35°23.32′ N. lat., 121°11.44′ W. long.;

(218) 35°15.28′ N. lat., 121°04.45′ W. long.;

(219) 35°07.08′ N. lat., 121°00.30′ W. long.;

(220) 34°57.46′ N. lat., 120°58.23′ W. long.;

(221) 34°44.25′ N. lat., 120°58.29′ W. long.;

(222) 34°32.30′ N. lat., 120°50.22′ W. long.;

(223) 34°27.00′ N. lat., 120°42.55′ W. long.;

(224) 34°19.08′ N. lat., 120°31.21′ W. long.;
      ( print page 59822)    
(225) 34°17.72′ N. lat., 120°19.26′ W. long.;

(226) 34°22.45′ N. lat., 120°12.81′ W. long.;

(227) 34°21.36′ N. lat., 119°54.88′ W. long.;

(228) 34°09.95′ N. lat., 119°46.18′ W. long.;

(229) 34°09.08′ N. lat., 119°57.53′ W. long.;

(230) 34°07.53′ N. lat., 120°06.35′ W. long.;

(231) 34°10.54′ N. lat., 120°19.07′ W. long.;

(232) 34°14.68′ N. lat., 120°29.48′ W. long.;

(233) 34°09.51′ N. lat., 120°38.32′ W. long.;

(234) 34°03.06′ N. lat., 120°35.54′ W. long.;

(235) 33°56.39′ N. lat., 120°28.47′ W. long.;

(236) 33°50.25′ N. lat., 120°09.43′ W. long.;

(237) 33°37.96′ N. lat., 120°00.08′ W. long.;

(238) 33°34.52′ N. lat., 119°51.84′ W. long.;

(239) 33°35.51′ N. lat., 119°48.49′ W. long.;

(240) 33°42.76′ N. lat., 119°47.77′ W. long.;

(241) 33°53.62′ N. lat., 119°53.28′ W. long.;

(242) 33°57.61′ N. lat., 119°31.26′ W. long.;

(243) 33°56.34′ N. lat., 119°26.40′ W. long.;

(244) 33°57.79′ N. lat., 119°26.85′ W. long.;

(245) 33°58.88′ N. lat., 119°20.06′ W. long.;

(246) 34°02.65′ N. lat., 119°15.11′ W. long.;

(247) 33°59.02′ N. lat., 119°02.99′ W. long.;

(248) 33°57.61′ N. lat., 118°42.07′ W. long.;

(249) 33°50.76′ N. lat., 118°37.98′ W. long.;

(250) 33°38.41′ N. lat., 118°17.03′ W. long.;

(251) 33°37.14′ N. lat., 118°18.39′ W. long.;

(252) 33°35.51′ N. lat., 118°18.03′ W. long.;

(253) 33°30.68′ N. lat., 118°10.35′ W. long.;

(254) 33°32.49′ N. lat., 117°51.85′ W. long.;

(255) 32°58.87′ N. lat., 117°20.36′ W. long.; and

(256) 32°35.53′ N. lat., 117°29.67′ W. long.

3. On pages 11108-11114, in section IV. NMFS Actions, under B. Limited Entry Fishery, at the end of paragraph (1), Table 3 (North), Table 3 (South), Table 4 (North), and Table 4 (South) are revised to read as follows:

### IV. NMFS Actions

#### B. Limited Entry Fishery

(1) * * *

* * * * *
      ( print page 59823)          ( print page 59824)          ( print page 59825)          ( print page 59826)          ( print page 59827)          ( print page 59828)          ( print page 59829)    
4. On pages 11116-11118, in section IV. NMFS Actions, under C. Trip Limits in the Open Access Fishery, at the end of paragraph (1), Table 5 (North) and Table 5 (South) are revised to read as follows:

### IV. NMFS Actions

#### C. Trip Limits in the Open Access Fishery

(1) * * *

* * * * *
      ( print page 59830)          ( print page 59831)          ( print page 59832)          ( print page 59833)    
5. In section IV., under D. Recreational Fishery, paragraphs (2)(a) and (b) are revised to read as follows:

* * * * *

(2) Oregon.

                    (a) Seasons, closed areas.  Recreational fishing for groundfish is open from January 1 through December 31 in all areas, except that from June 1 through September 30 and from November 1 through December 31, recreational fishing for groundfish is prohibited seaward of a recreational RCA boundary line approximating the 40-fm (73-m) depth contour, subject to the provisions in paragraph IV.D.(2)(b).  Coordinates for the boundary line approximating the 40-fm (73-m) depth contour are listed in section IV.A.(17)(f).  Recreational fishing for all groundfish may be prohibited inseason seaward of a boundary line approximating the 30-fm (55-m) depth contour.  If a boundary line approximating the 30-fm (55-m) depth contour is implemented inseason, a document will be published in the                     **Federal Register**                     pursuant to the requirements of the APA.  Coordinates for the boundary line approximating the 30-fm (55-m) depth contour are listed in section IV.A.(17)(f).                

(b) Bag limits, size limits.  The bag limits for each person engaged in recreational fishing in the EEZ seaward of Oregon are 10 marine fish per day, which excludes salmon, tuna, perch species, sturgeon, sanddabs, lingcod, greenling, cabezon, all rockfish (except yellowtail rockfish outside 40-fm during October 1 through 31), striped bass and baitfish (herring, smelt, anchovies and sardines), but which includes yellowtail rockfish (outside of a boundary line approximating the 40-fm depth contour, as described in paragraph D.(2)(a), during October 1 through 31 only) and other groundfish species (including sablefish and flatfish).  Taking and retaining all rockfish (except yellowtail rockfish), greenling, cabezon, and lingcod is prohibited.  During the all-depth recreational fisheries for Pacific halibut, vessels with halibut on board may not take and retain, possess or land yelloweye rockfish or canary rockfish.

* * * * *

## Classification

                    These actions are authorized by the Pacific Coast groundfish FMP and its implementing regulations, and 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.                

The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment on this action pursuant to 5 U.S.C. 553(b)(3)(B).  Providing prior notice and comment on the inseason adjustments would be impracticable because the data upon which these recommendations were based were provided to the Pacific Council at its September 12-17, 2004, meeting in San Diego, CA.  As described below, there was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these regulations are supposed to be effective, October 1, 2004.  Many of the previously scheduled RCAs for the October through December period are more liberal (smaller) than the RCAs contained in this inseason action.  The delay required by notice and comment would allow sufficient fishing time so that most participants in the fishery could fish in areas with a higher encounter rate of darkblotched and canary rockfish, both of which are projected to exceed their 2004 OYs, before this inseason action would be in effect.  Therefore, for the actions to be implemented in this document to reduce mortality of darkblotched and canary rockfish, providing prior notice and opportunity for comment would be impracticable because it would take too long, thus impeding the Agency′s function of managing fisheries to approach without exceeding the OYs for federally managed species.

Adjustments to management measures in this inseason action include changes to the management measures for the limited entry groundfish fisheries and Oregon′s recreational fishery.  Changes to limited entry trawl trip limits implemented with this inseason action are a mix of more conservative and more liberal trip limits than previously scheduled.  More liberal trip limits, such as for DTS (Dover sole, thornyheads, and sablefish) complex species must be implemented in a timely manner to allow fishermen continued harvest opportunities throughout the year for species that are tracking below their OYs and in areas where there is minimal impact to overfished species.  More conservative trip limits, such as for minor slope rockfish, minor shelf rockfish, and arrowtooth flounder, and bycatch caps for the whiting fishery must be implemented in a timely manner to keep harvest of those species within their 2004 OYs and/or to allow the fisheries to continue throughout the year.

For these reasons, good cause also exists to waive the 30-day delay in effectiveness requirement under 5 U.S.C. 553 (d)(3).

These actions are taken under the authority of 50 CFR 660.323(b)(1) and are exempt from review under Executive Order 12866.

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

Dated: October 1, 2004.

Alan D. Risenhoover,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

BILLING CODE 3510-22-S

[FR Doc. 04-22477 Filed 10-1-04; 3:51 pm]