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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 0809121213-9221-02]
          - RIN 0648-AY40

# 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 announces inseason changes to management measures in the commercial, recreational and tribal Pacific Coast groundfish fisheries. 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) February 26, 2010. Comments on this final rule must be received no later than 5 p.m., local time on March 29, 2010.

# ADDRESSES:

You may submit comments, identified by RIN 0648-AY40 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 Arentzen                    
      -  Mail:                          Barry Thom, Acting Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070,                          Attn:                          Gretchen Arentzen.                    

*Instructions:*                         No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to                         *http://www.regulations.gov (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 Arentzen (Northwest Region, NMFS),                         *phone:*                         206-526-6147,                         *fax:*                         206-526-6736 and e-mail                         *gretchen.arentzen@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 website at                     *http://www.pcouncil.org/​.*

## Background

The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS. A proposed rule to implement the 2009-2010 groundfish harvest specifications and management measures published on December 31, 2008, (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). This final rule was subsequently amended by inseason actions on April 27, 2009 (74 FR 19011), July 6, 2009 (74 FR 31874), and October 28, 2009 (74 FR 55468). 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). These specifications and management measures are codified in the CFR (50 CFR part 660, subpart G).

                    Changes to the biennial 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 October 31 through November 5, 2009, meeting in Costa Mesa, California. The Council recommended adjusting the biennial groundfish management measures for the remainder of the biennial period to respond to updated fishery information and other inseason management needs. These changes include: Adjustments to cumulative limits in commercial fisheries off Washington, Oregon, and California; adjustments to lingcod retention in the Washington recreational fishery on days when the primary halibut fishery is open; and revisions to tribal management measures for black rockfish and widow rockfish. Increases to cumulative limits may be implemented at any time during a “two-month cumulative limit period”. There are six two-month cumulative limit periods during the year: January-February, March-April, etc. Prior to the effective date of this rule (                    *see*                     the                     **DATES**                     section above), landings must not exceed the applicable cumulative limits as described in the Code of Federal Regulations. The additional fish that become available under the new, higher limits for January and February may be harvested by the fishery after the effective date that is listed in the                     **DATES**                     section above. Total landings for January and February (the current cumulative limit period) may not exceed the new, higher cumulative limit.                

The projected impacts to three of the seven overfished species (widow and darkblotched rockfishes and Pacific Ocean perch) will increase slightly with the adjustments to the cumulative limits in the limited entry non-whiting trawl fishery. These impacts, however, when combined with the impacts from all other fisheries, are not projected to exceed the 2010 rebuilding OYs for these species. The other adjustments to fishery management measures are not expected to result in greater impacts to overfished species than originally projected through the end of 2010. Estimated mortality of overfished and target species are the result of management measures designed to meet the Pacific Coast Groundfish 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.

## Review of 2009 Fisheries and Setting Management Measures for the Remainder of the Biennium

                    At its November 2009 meeting, the Council reviewed the 2009 commercial groundfish fisheries by considering: (1) The fishery management measures initially set for 2009, (2) modifications to management measures that were needed inseason in 2009 as new data became available throughout the season, and (3) retrospective total catch pattern data from the 2009 year-to-date. Two noticeable features of the 2009 fishing                           ( print page 8821)                        season were that the Council had to: recommend adjustments to limited entry non-whiting trawl fishery management measures to reduce the harvest of petrale sole to facilitate rebuilding; and, on several occasions, recommend inseason adjustments to commercial fisheries to liberalize trip limits in order to allow total catch of some target species to approach, but not exceed, their 2009 allowable harvest levels. This practice is in keeping with the Council's rebuilding goals for overfished species, but is challenging for an industry trying to predict whether and how much fish will be available for harvest in the next month (or bi-monthly period) of the year. The Council's goal in scrutinizing the 2009 groundfish fisheries was to develop a set of management measures for the remainder of the biennial period that would take into account new knowledge gained in 2009 to better structure the fisheries in 2010. The improved structure of the initial 2010 management measures was designed to continue to keep total catch of managed species within their optimum yield levels, yet be conservative enough to reduce the need for inseason restrictions, and liberal enough to allow the catch of target species to approach, but not exceed, their 2010 OYs. The purpose of revising the 2010 management measures was to reduce the frequency with which management measure adjustments would be needed inseason during the remainder of 2010; and to allow the industry to plan for their 2010 fishing season(s). These revisions also ensure that management measures in place for the remainder of the biennial period reflect the best available science and are appropriately designed to constrain total catch during the year for all species.                

### Limited Entry Non-Whiting Trawl Fishery Management Measures

Based on the Council's goals in reviewing 2009 fishery data, as described above, the Council's Groundfish Management Team (GMT) reviewed the adjustments to fishery management measures in the limited entry non-whiting trawl fishery during the 2009-2010 biennium. Two major factors were considered during development of changes to limited entry non-whiting trawl fishery management measures for the remainder of the biennium: The severe restrictions put in place to reduce catches of petrale sole in both 2009 and 2010; and routine adjustments to 2009 fishery management measures that were necessary during the first ten months of the biennium.

The most prominent feature of changes to the 2009-2010 trawl fishery were the more restrictive management measures for petrale sole, put in place for the end of 2009 and for all of 2010, to facilitate rebuilding of petrale sole. These changes are anticipated to indirectly affect the harvest of incidentally caught overfished species that co-occur with petrale sole. By reducing catches of petrale sole, projected impacts to Pacific Ocean perch (POP), darkblotched rockfish, and widow rockfish are also reduced. The GMT explored potential options for modest increases to trip limits for target species due to the availability of incidentally caught overfished species. Where possible, modest increases to target species trip limits were developed in an attempt to off-set some of the loss of petrale sole fishing opportunities. Projected impacts to POP, darkblotched and widow rockfish are slightly increased by providing additional target species opportunities. However the new projected impacts to these overfished species are approximately equivalent to what they were projected to be prior to the severe restrictions placed on petrale sole harvest opportunities.

The second major factor that was considered during development of changes to the limited entry non-whiting trawl fishery management measures for the remainder of the biennium was performance of the 2009 fishery. Performance of the 2009 fishery includes both the scope and magnitude of routine adjustments to 2009 fishery management measures that were necessary during 2009, and the most recent fishery information through October 30, 2009. Review of changes to trip limits implemented for target species during 2009 identified that, aside from petrale sole, sablefish was the primary species that needed adjustments to trip limits and closed areas in order to achieve, but not exceed, the 2009 harvest specification. During 2009, inseason adjustments were also made to arrowtooth flounder trip limits to modestly raise trip limits and reduce regulatory discarding that was reported by industry representatives during the summer fishery. Additionally, chilipepper rockfish trip limits were raised considerably during 2009 to allow additional targeting opportunities. At their November 2009 meeting, the Council also received the most recent Pacific Fishery Information Network's (PacFIN) and Quota Species Monitoring (QSM) data, which estimated catch through the end of October. The Council considered trip limit adjustments based on the performance of the fishery during the first 10 months of the biennial period (January-October 2009).

The most recently available fishery information indicates that, with the inseason adjustments to increase trip limits and modify the trawl RCA that occurred in 2009, catches of sablefish through the end of 2009 are projected to come in just below the allocation (3,270 mt of the 3,280 mt sablefish allocation). The Council considered adjustments to sablefish cumulative limits for the remainder of the biennium that would re-distribute the projected catch more equitably throughout the calendar year, while still maintaining modest increases to approach, but not exceed, the 2010 sablefish allocation. To do this, the Council chose to raise cumulative limits in January-April, 2010, and lower cumulative limits at the end of the year, which were the limits that were raised via inseason action during 2009. The overall effect of these cumulative limit adjustments is to have a more constant cumulative limit throughout the year, rather than cumulative limits that ramp-up toward the end of the year. With this adjustment, catches of sablefish for 2010 are projected to come in just below the allocation (3,182 mt of the 3,280 mt sablefish allocation).

During 2009, the Council recommended and NMFS implemented an increase in the arrowtooth flounder trip limits, for vessels using large and small footrope gear, at the end of 2009 (from 150,000 lb (68,039 kg) per 2 months to 180,000 lb (81,647 kg) per 2 months in Periods 5 and 6) to reduce regulatory discards that were being reported by the industry. The Council considered options for arrowtooth flounder trip limits in the limited entry non-whiting trawl fishery for 2010. The Council recommended the 150,000 lb (68,039 kg) per 2 months trip limit, the same limit that was established for the 2009-2010 biennium during the harvest specifications and management measures process, remain in place for all of 2010, for vessels using large and small footrope trawl gear. These slightly lower limits are intended to slightly reduce projected impacts to co-occurring overfished species (POP and darkblotched rockfish). The Council may consider inseason adjustments to this trip limit during 2010 based on the most up to date fishery information, including industry reports of regulatory discard.

                    Based on analysis provided by the GMT at their June 2009 meeting, the Council recommended increasing the chilipepper rockfish cumulative limit for the limited entry non-whiting trawl fishery south of 40°10′ N. lat. The                           ( print page 8822)                        analysis presented in June 2009 was requested by industry representatives, who reported an increasing incidental encounter rate and high discards of chilipepper rockfish under the lower 5,000 lb (2,268 kg) per 2 months cumulative limit. West Coast Groundfish Observer Program (WCGOP) data confirmed that discards of chilipepper rockfish in this fishery were high. Results of the June 2009 analysis indicated that a 12,000 lb (5,443 kg) 2 month cumulative limit could reduce regulatory discards, while balancing the risk of inducing effort shifts to convert the trip limit from an incidental landing allowance to a cumulative limit that would be targeted by fishermen. The GMT presented analysis in June 2009 that indicated that, even if some change in fishing behavior were to occur, there was little risk of additional impacts to any overfished species (cowcod and bocaccio in particular) due to a decrease in trawl effort in areas where bycatch of cowcod and bocaccio have been observed. For the same reasons that the chilipepper rockfish trip limit was increased in June 2009, the Council recommended continuing the higher, 12,000 lb (5,443 kg) per 2 months, cumulative limit for chilipepper rockfish for all of 2010.                

The Council recommended a suite of changes to trip limits in the non-whiting trawl fishery for the remainder of the biennium in response to the two major factors outlined above: The severe restrictions put in place to reduce catches of petrale sole in both 2009 and 2010; and routine adjustments to 2009 fishery management measures during the first ten months of the biennium.

Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to cumulative limits in the limited entry non-whiting trawl fishery for 2010: increase slope rockfish limits north of 40°10′ N. lat. from “1,500 lb (680 kg) per 2 months” to “6,000 lb (2,722 kg) per 2 months”, all year, beginning on February 26, 2010; increase the slope rockfish limits between 40°10′ N. lat. and 38° N. lat. from “10,000 lb (4,536 kg) per 2 months” to “15,000 lb (6,804 kg) per 2 months” in July-August and decrease from “18,000 lb (8,165 kg) per 2 months” to “15,000 lb (6,804 kg) per 2 months” in November-December; modify sablefish cumulative limits caught with large and small footrope trawl gears north of 40°10′ N. lat. to “20,000 lb (9,072 kg) per 2 months” in January-April, “24,000 lb (10,886 kg) per 2 months” in May-October, and “20,000 lb (9,072 kg) per 2 months” in November-December, beginning on February 26, 2010; modify sablefish limits caught with selective flatfish trawl gear and multiple trawl gears north of 40°10′ N. lat. to “9,000 lb (4,082 kg) per 2 months” all year, beginning February 26, 2010; modify sablefish limits south of 40°10′ N. lat. to “22,000 lb (9,979 kg) per 2 months” all year, beginning on February 26, 2010; increase longspine thornyhead limits taken with large and small footrope trawl gears north of 40°10′ N. lat. and with all trawl gears south of 40°10′ N. lat. from “22,000 lb (9,979 kg) per 2 months” to “24,000 lb (10,886 kg) per 2 months” all year, beginning on February 26, 2010; increase longspine thornyhead limits taken with selective flatfish trawl gear and multiple trawl gears north of 40°10′ N. lat. from “3,000 lb (1,361 kg) per 2 months” to “5,000 lb (2,268 kg) per 2 months” for January-February and November-December (Periods 1 and 6), beginning on February 26, 2010; increase shortspine thornyhead limits taken with large and small footrope trawl gears North of 40°10′ N. lat. and with all trawl gears south of 40°10′ N. lat. from “17,000 lb (7,711 kg) per 2 months” to “18,000 lb (8,165 kg) per 2 months” all year, beginning on February 26, 2010; increase shortspine thornyhead limits taken with selective flatfish trawl gear and multiple trawl gears north of 40°10′ N. lat. from “3,000 lb (1,361 kg) per 2 months” to “5,000 lb (2,268 kg) per 2 months” all year, beginning on February 26, 2010; increase Dover sole limits taken with selective flatfish trawl gear and multiple trawl gears north of 40°10′ N. lat. from 40,000 lb/2 months for January-February and November-December (Periods 1 and 6) and from 45,000 lb/2 months in March-October (Periods 2-5) to “65,000 lb/2 months” all year, beginning on February 26, 2010; decrease “other flatfish” limits taken with selective flatfish trawl gear and multiple trawl gears, from “90,000 lb/2 months” to “60,000 lb/2 months” all year, beginning on March 1, 2010; decrease arrowtooth flounder limits taken with large and small footrope trawl gears from “180,000 lb (81,647 kg) 2 months” to “150,000 lb (68,039 kg) per 2 months” in September-December; increase splitnose rockfish limits taken with all trawl gears between 40°10′ N. lat. and 38° N. lat. from “10,000 lb (4,536 kg) per 2 months” to “15,000 lb (6,804 kg) per 2 months” in July-October; and increase chilipepper rockfish limits south of 40°10′ N. lat. taken with all trawl gears from “5,000 lb (2,268 kg) per 2 months” to “12,000 lb/2 months” from January-June, beginning on February 26, 2010.

### Limited Entry Fixed Gear and Open Access Fishery Management Measures

Based on the Council's goals in reviewing 2009 fishery data, as described above, the Council's GMT reviewed the adjustments to fishery management measures in the limited entry fixed gear and open access fisheries during the first ten months of the 2009-2010 biennium. The major factor considered during development of changes to limited entry fixed gear and open access fisheries' management measures for the remainder of the biennium were the routine adjustments to 2009 fishery management measures that were necessary during the first ten months of the biennium.

#### Minor Nearshore and Black Rockfish Trip Limits Between 42° N. lat. and 40°10.00′ N. lat.

                    Black rockfish is a nearshore rockfish species that was assessed in 2007 as two separate stocks, and therefore the harvest specifications are divided at the Washington/Oregon border (46°16.00′ N. lat.). The 2010 black rockfish OY for the area south of 46°16.00′ N. lat. is 1,000 mt. Oregon and California work cooperatively to manage their nearshore fisheries (both commercial and recreational) to approach but not exceed the black rockfish OY in this area. The 2010 black rockfish commercial allocation for California is 185 mt. At their June 2009 meeting, the Council recommended an increase in the minor nearshore and black rockfish trip limit, as catches were projected to be well below the 2009 allocation (74 mt of a 185 mt allocation) if no action were taken. This trip limit increase was only considered for the area between 42° N. lat. and 40°10.00′ N. lat., where the lower trip limits were being attained. At their June 2009 meeting, the Council also considered the potential for increased impacts to blue rockfish if the trip limit were increased while leaving the minor nearshore rockfish and black rockfish trip limit structure as “no more than 1,200 lb (544 kg) may be species other than black or blue rockfish”. So, on July 6, 2009 (74 FR 31974) NMFS implemented the Council recommendations to raise the trip limit for minor nearshore and black rockfish, while decreasing the blue rockfish trip limit by changing the trip limit structure. The limit for the limited entry fixed gear and open access fisheries between 42° N. lat. and 40°10.00′ N. lat. was raised and restructured from “6,000 lb (2,722 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black or blue rockfish” to “7,000 lb (3,175 kg) per two                           ( print page 8823)                        months, no more than 1,200 lb (544 kg) of which may be species other than black rockfish” in July-December (Periods 3-6) of 2009.                

At their November 2009 meeting, the Council considered the most recent limited entry fixed gear and open access nearshore fishery information, and recommended that the increased and re-structured limit that was implemented inseason during 2009 remain in place for the 2010 fishery. Therefore, the Council recommended and NMFS is implementing an increase to the minor nearshore rockfish trip limit, and a decrease in the blue rockfish sub-limit, between 42° N. lat. and 40°10′ N. lat. from “6,000 lb (2,722 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black or blue rockfish” to “7,000 lb (3,175 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black rockfish.” Because the re-structuring of this trip limit restricts the catch of blue rockfish, it cannot be implemented during the middle of a cumulative limit period. Therefore, it will go into effect beginning March 1, 2010 through the end of the year. Limited Entry Fixed Gear Sablefish Daily Trip Limit Fishery North of 36° N. lat.

Over the past several years, the amount of sablefish harvested in the limited entry fixed gear sablefish daily trip limit (DTL) fishery north of 36° N. lat. has been lower than their sablefish allocation. The Council recommended and NMFS implemented a precautionary adjustment that moderately raised the daily, weekly and bi-monthly trip limits for sablefish in this fishery on May 1, 2009 (74 FR 19011). At their June 2009 meeting the Council recommended and NMFS implemented a second precautionary adjustment that modestly increased the bi-monthly limit for July-October (July 6, 2009, 74 FR 31874). At their September 2009 meeting the Council recommended and NMFS implemented a third adjustment to remove the daily limit and increase the weekly and bimonthly limits from October-December (October 28, 2009, 74 FR 55468). With the numerous adjustments to increase limits for sablefish in this fishery, the projected impacts through the end of 2009 are 199 mt out of a 351 mt allocation.

At their November 2009 meeting, the Council considered the scope and magnitude of routine adjustments to 2009 fishery management measures. The Council also received the most recent PacFIN and QSM data, which estimated catch through the end of October, and considered trip limit adjustments based on the performance of the fishery during the first 10 months of the biennial period (January-October 2009).

Review of changes to trip limits implemented for sablefish during 2009 and analysis of the effects that changes to sablefish trip limits in this fishery had on sablefish landings found that maintaining the higher bi-monthly limit that was in place during the end of 2009 could be considered for all of 2010, without exceeding the 2010 sablefish allocation of 321 mt. As described above, the catch limits for sablefish in this fishery were gradually increased throughout 2009. The Council considered adjustments to sablefish cumulative limits for the remainder of the biennium that would re-distribute the projected catch more equitably throughout the calendar year, while still maintaining increases to approach, but not exceed, the 2010 sablefish allocation. To do this, the Council chose to eliminate the daily limit and raise the weekly and bi-monthly limits in January-August, and lower the weekly cumulative limit at the end of the year (September-December). The overall effect of these cumulative limit adjustments is to have a more constant cumulative limit throughout the year, rather than cumulative limits that ramp-up toward the end of the year. With this adjustment, catches of sablefish for 2010 are projected to be 201 mt (63 percent of the 321 mt sablefish allocation).

This increase in sablefish trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that the entire sablefish allocation is harvested. Increases in projected impacts to co-occurring target species are not anticipated to exceed OYs.

Therefore, the Council recommended and NMFS is implementing trip limit changes for the limited entry fixed gear fishery north of 36° N. lat. that increase sablefish DTL fishery limits to “1,750 lb (794 kg) per week, not to exceed 7,000 lb (3,175 kg) per 2 months” beginning on February 26, 2010 through the end of the year.

## Tribal Fishery Management Measures

At their November 2009 meeting, the Council received a request from the Makah Indian Tribe to increase their 2010 black rockfish harvest guideline and to re-structure their widow rockfish landing limit for their midwater trawl fishery for 2010.

The Makah Indian Tribe requested an increase in the 2010 tribal black rockfish harvest guideline for the area north of Cape Alava, Washington (48°10′ N. lat.) from 20,000 lbs (9.1-mt) to 30,000 lbs (13.6-mt) to allow a small amount of targeting opportunity to occur on black rockfish in a live-fish fishery. With the higher tribal harvest guideline north of Cape Alava, and the projected catches of black rockfish from all other fisheries North of 46°16′ N. lat., the total catch of black rockfish is not projected to exceed the 2010 northern black rockfish OY of 490 mt.

Therefore, the Council recommended and NMFS is implementing an increase in the black rockfish tribal harvest guideline for the area north of Cape Alava, Washington (48°10′ N. lat.) from 20,000 lbs (9.1-mt) to 30,000 lbs (13.6-mt).

The Makah Indian Tribe also requested that the widow rockfish landing limit in the midwater trawl fishery be re-structured in 2010 to allow greater flexibility in management and to reduce discarding of widow rockfish, while maintaining the overall catch below their annual widow rockfish limit. The current limit structure states that “landings of widow rockfish must not exceed 10 percent of the weight of yellowtail rockfish landed in a two-month period.” The Makah Indian Tribe is proposing to re-structure the limit so that the total landings of widow rockfish would not exceed 10 percent of the weight of yellowtail rockfish landed by a given vessel for the entire year, e.g. if a vessel landed 100,000 lbs of yellowtail rockfish for the season, that same vessel is only allowed to have landed a total of 10,000 lbs of widow rockfish at that time. The Makah Tribe will maintain a total catch of each species, for each vessel, throughout the year to ensure that the catch ratio of widow rockfish to yellowtail rockfish is not exceeded during 2010.

Therefore, the Council recommended and NMFS is implementing a re-structured cumulative limit ratio for widow rockfish in the tribal midwater trawl fishery as follows: From “* * * not exceed 10 percent of the weight of yellowtail rockfish landed in any two-month period.” to “* * * not exceed 10 percent of the cumulative weight of yellowtail rockfish landed, for a given vessel, throughout the year.” Washington Recreational Fisheries Management Measures

                    The Council recommended a change in Washington recreational fishery management measures in the area between the Queets River and Leadbetter Point to allow lingcod retention seaward of the boundary line approximating the 30-fm (55-m) depth contour on days that the primary halibut season is open. Under current regulations, most recreational groundfish fishing, including fishing for                           ( print page 8824)                        lingcod, is prohibited, for part of the year, seaward of the line approximating the 30 fm depth contour to reduce incidental impacts to yelloweye rockfish. Therefore, anglers targeting halibut there are forced to discard lingcod, but once their halibut is caught, these anglers move shoreward of the boundary line approximating the 30-fm (55-m) depth contour and begin targeting lingcod. This shoreward shift of effort on lingcod results in more fishing effort than would occur if the lingcod caught incidentally offshore while targeting halibut were allowed to be retained. The additional effort targeting lingcod shoreward could negate some of the potential yelloweye rockfish catch reductions from the RCA if yelloweye are encountered. The State of Washington will prohibit further fishing seaward of the 30-fm line once a vessel reaches its limit of halibut. This regulatory change is not anticipated to increase impacts to yelloweye rockfish, and the Washington Department of Fish and Wildlife and NMFS will continue to monitor impacts to yelloweye rockfish to ensure the harvest guideline is not exceeded.                

## Classification

These actions are taken under the authority of 50 CFR 660.370(c) and are exempt from review under Executive Order 12866.

                    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, 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 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 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 October 31 through November 5, 2009, meeting in Costa Mesa, California. The Council recommended that these changes be implemented on or as close as possible to January 1, 2010. 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 and tribal fisheries off Washington.

These adjustments to management measures must be implemented in a timely manner to allow fishermen an opportunity to harvest higher limits in 2010 for slope rockfish, sablefish, longspine and shortspine thornyheads, Dover sole, chilipepper rockfish, slope rockfish, splitnose rockfish and minor nearshore and black rockfish. Increases to cumulative limits for: Sablefish in the limited entry trawl fishery and the limited entry fixed gear fishery; slope rockfish, longspine and shortspine thornyheads, Dover sole, splitnose rockfish and chilipepper rockfish in the limited entry trawl fishery; and minor nearshore and black rockfish in the limited entry fixed gear fishery and the open access fishery allow fishermen increased opportunities to harvest available healthy stocks while staying within the OYs for these species. These changes must be implemented in a timely manner, as early as possible in 2010, 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 delay implementation of these changes until after public notice and comment, because making this regulatory change in February 2010 allows additional harvest in fisheries that are important to coastal communities.

These adjustments to management measures must be implemented in a timely manner to prevent 2010 OYs from being exceeded or to prevent premature closure of the fishery. Decreases to cumulative limits for other flatfish and arrowtooth flounder in the limited entry trawl fishery and for blue rockfish in the limited entry fixed gear and open access fisheries are intended to prevent exceeding the 2010 OYs for these species and co-occurring species, and prevent premature closure of fisheries that impact these species. These changes must be implemented in a timely manner, on March 1, 2010. Cumulative limits cover a two-month period, so if implementation is delayed much past March 1 fishermen could harvest the prior higher limit before the revised limit is effective. Decreases to cumulative limits for other flatfish and arrowtooth flounder in the limited entry trawl fishery are intended to reduce impacts to co-occurring overfished species, and to reduce impacts to petrale sole, a co-occurring species for which a severely reduced OY was implemented for 2010 (74 FR 65480). Decreases to cumulative limits for blue rockfish in the limited entry fixed gear and open access fisheries are intended to prevent the 2010 blue rockfish OY from being exceeded and prevent premature closure of nearshore fisheries that take blue rockfish.

Delaying these changes would keep management measures in place that are not based on the best available data, which could deny fishermen access to available harvest and could lead to early closures of the fishery if harvest of groundfish exceeds levels projected for 2010. Such delay would impair achievement of the Pacific Coast Groundfish FMP objective of approaching, but not exceeding, OYs.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian fisheries

Dated: February 17, 2010.

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:

# PART 660—FISHERIES OFF WEST COAST STATES

1. The authority citation for part 660 is amended to read as follows: 

Authority:16 U.S.C. 1801*et seq.*                             and 16 U.S.C. 773*et seq.*

2. Section 660.321 is revised to read as follows: 

§ 660.321 

                            From the commercial harvest of black rockfish off Washington State, a treaty Indian tribes' harvest guideline is set of 30,000 lb (13,608 kg) for the area north of Cape Alava, WA (48°09.50′ N. lat) and 10,000 lb (4,536 kg) for the area between Destruction Island, WA (47°40′ N. lat.) and Leadbetter Point, WA (46°38.17′ N. lat.). This harvest guideline applies and is available to the                                   ( print page 8825)                                treaty Indian tribes identified in § 660.324(b).                        

3. In § 660.384 paragraph (c)(1)(i)(D) ( *2*), is revised to read as follows:                    

§ 660.384 

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(c) * * *

(1) * * *

(i) * * *

(D) * * *

                            (                            *2*) Between the Queets River and Leadbetter Point, recreational fishing for groundfish is prohibited seaward of a boundary line approximating the 30-fm (55-m) depth contour from March 15 through June 15, except that recreational fishing for sablefish and Pacific cod is permitted within the recreational RCA from May 1 through June 15, and on days that the primary halibut fishery is open lingcod may be taken, retained and possessed seaward of the boundary line approximating the 30-fm (55-m) depth contour. Days open to Pacific halibut recreational fishing off Washington are announced on the NMFS hotline at (206) 526-6667 or (800) 662-9825. Retention of lingcod seaward of the boundary line approximating the 30-fm (55-m) depth contour south of 46°58' N. lat. is prohibited on Fridays and Saturdays from July 1 through August 31. For additional regulations regarding the Washington recreational lingcod fishery, see paragraph (c)(1)(iii) of this section. Coordinates for the boundary line approximating the 30-fm (55-m) depth contour are listed in § 660.391.                        

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4. In § 660.385 paragraphs (b)(1) and (b)(5) are revised to read as follows: 

§ 660.385 

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(b) * * *

                            (1)                             *Black Rockfish.*                             For the commercial harvest of black rockfish off Washington State, a harvest guideline of: 30,000 lb (13,608 kg) north of Cape Alava, WA (48°10′ N. lat.) and 10,000 lb (4,536 kg) between Destruction Island, WA (47°40′ N. lat.) and Leadbetter Point, WA (46°38.17′ N. lat.). There are no tribal harvest restrictions for black rockfish in the area between Cape Alava and Destruction Island.                        

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(5) The Makah Tribe will manage the midwater trawl fisheries as follows: yellowtail rockfish taken in the directed tribal mid-water trawl fisheries are subject to a cumulative limit of 180,000 lb (81,647 kg) per 2 month period for the entire fleet. Landings of widow rockfish must not exceed 10 percent of the weight of yellowtail rockfish landed, for a given vessel, throughout the year. These limits may be adjusted by the tribe inseason to minimize the incidental catch of canary rockfish and widow rockfish, provided the average 2-month cumulative yellowtail rockfish limit does not exceed 180,000 lb (81,647 kg) for the fleet.

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5. Table 2a to Part 660, Subpart G, and footnote “/cc” following Tables 2a through 2c to Part 660, Subpart G are revised to read as follows: 

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      ( print page 8826)          ( print page 8827)          ( print page 8828)          ( print page 8829)    
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cc/                             New assessments were prepared for black rockfish south of 45°56.00 N. lat. (Cape Falcon, Oregon) and for black rockfish north of Cape Falcon. The ABC for the area north of 46°16′ N. lat. (Washington) is 464 mt (97 percent) of the 478 mt ABC contribution from the northern assessment area. The ABC for the area south of 46°16′ N. lat. (Oregon and California) is 1,317 mt which is the sum of a contribution of 14 mt (3 percent) from the northern area assessment, and 1,303 mt from the southern area assessment. The ABCs were derived using an FMSY proxy of F50%. Because both portions of the stock are above 40 percent, the OYs could be set equal to the ABCs. For the area north of 46°16′ N. lat., the OY of 490 mt is set equal to the ABC. The following tribal harvest guidelines are being set: 30,000 lb (13.6 mt) north of Cape Alava, WA (48°09.50′ N. lat.) and 10,000 lb (4.5 mt) between Destruction Island, WA (47°40′ N. lat.) and Leadbetter Point, WA (46°38.17′ N. lat.) For the area south of 46°16′ N. lat., the OY of 1,000 mt is a constant harvest level. The black rockfish OY in the area south of 46°16′ N. lat., is subdivided with separate HGs being set for the area north of 42° N. lat. (580 mt/58 percent) and for the area south of 42° N. lat. (420 mt/42 percent).                        

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6. Tables 3 (North), 3 (South), 4 (North), 4 (South), and 5 (North) to part 660, subpart G are revised to read as follows: 
      ( print page 8830)          ( print page 8831)          ( print page 8832)          ( print page 8833)          ( print page 8834)          ( print page 8835)          ( print page 8836)          ( print page 8837)          ( print page 8838)          ( print page 8839)    

BILLING CODE 3510-22-P

[FR Doc. 2010-3892 Filed 2-25-10; 8:45 am]

BILLING CODE 3510-22-C