46714 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Proposed Rules 

requirements of Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 6, 2000), do not apply 

to this proposed rule. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045, entitled Protection of 

Children from Environmental Health 

Risks and Safety Risks (62 FR 19885, 

April 23, 1997), because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866, and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211, entitled Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001), because this action is not 

expected to affect energy supply, 

distribution, or use. 

I. National Technology Transfer 

Advancement Act 

Since this action does not involve any 

technical standards; section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (NTTAA), 

Public Law 104–113, section 12(d) (15 

U.S.C. 272 note), does not apply to this 

action. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This action does not entail special 

considerations of environmental justice 

related issues as delineated by 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994). 

List of Subjects in 40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements 

Dated: August 25, 2009. 

Wendy C. Hamnett, 

Acting Director, Office of Pollution Prevention 

and Toxics. 

Therefore, it is proposed that 40 CFR 

chapter I be amended as follows: 

PART 721—[AMENDED] 

■ 1. The authority citation for part 721 

continues to read as follows: 

Authority: 15 U.S.C. 2604, 2607, 2625(c). 

■ 2. Section 721.10068 is amended by 

revising paragraph (a) and adding a new 

paragraph (b)(2)(vii) to read as follows: 

§ 721.10068 Elemental mercury. 

(a) Definitions. The definitions in 

§721.3 apply to this section. In addition, 

the following definition applies: 

(1) Motor vehicle has the meaning 

found at 40 CFR 85.1703. 

(2) Flow meter means an instrument 

used in various applications to measure 

the flow rate of liquids or gases. 

(3) Natural gas manometer means an 

instrument used in the natural gas 

industry to measure gas pressure. 

(4) Pyrometer means an instrument 

used in various applications to measure 

extremely high temperatures. 

(b)* * * 

(2)* * * 

(vii) Manufacturing or processing of 

elemental mercury for use in flow 

meters, natural gas manometers, and 

pyrometers except for use in these 

articles when they are in service as of 

September 11, 2009. 

* * * * * 

[FR Doc. E9–21894 Filed 9–10–09; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 0907301200–91202–01] 

RIN 0648–AY07 

Magnuson-Stevens Act Provisions; 

Fisheries off West Coast States; 

Pacific Coast Groundfish Fishery; 

2009–2010 Biennial Specifications and 

Management Measures for Canary 

Rockfish and Petrale Sole 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes a rule to 

revise the 2009 management measures 

for petrale sole and to revise the 2010 

harvest specifications and management 

measures for petrale sole and canary 

rockfish taken in the U.S. exclusive 

economic zone (EEZ) off the coasts of 

Washington, Oregon, and California. 

DATES: Comments on this proposed rule 

must be received no later than 5 p.m., 

local time on October 13, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AY07 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 A. Thom, Acting 

Regional Administrator, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE, Seattle, WA 98115–0070, Attn: 

Gretchen Arentzen. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the Draft Environmental 

Assessment (DEA) prepared for this 

action is available from the NMFS 

Northwest Region website at http:// 

www.nwr.noaa.gov or from the mailing 

and street addresses listed above. 

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 proposed rule is accessible via 

the Internet at the Office of the Federal 

Register’s Website 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 2009 and 2010 ABCs, OYs and 

HGs for Pacific coast groundfish species 

were established in the final rule for the 

2009–2010 groundfish harvest 

specifications and management 

measures (74 FR 9874, March 6, 2009). 

This rule proposes interim measures for 

two species. For petrale sole this action 

would reduce catches in 2009 by 


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implementing more restrictive 

management measures, lower the 2010 

OY for petrale sole, and implement 

more restrictive management measures 

in 2010 to keep projected impacts below 

the new 2010 OY. For canary rockfish 

this action would lower the 2010 OY 

and implement more restrictive 2010 

management measures to keep projected 

impacts below the new 2010 OY. These 

changes are being proposed because the 

PFMC received new stock assessments 

that indicate the stocks are in worse 

shape than we had thought at the 

beginning of 2009. 

The Council reviewed a new stock 

assessment for petrale sole in June, 

considered questions raised by the 

Stock Assessment and Review Panel 

(STAR Panel) and the Scientific and 

Statistical Committee (SSC), and asked 

the SSC to review the open issues and 

report back to the Council in September. 

While there is uncertainty regarding the 

results of the final stock assessment, it 

is likely that, under any outcome, the 

stock will be overfished at the beginning 

of 2011 if the entire current petrale OYs 

are taken in 2009 and 2010. In 

September the Council will consider the 

updated information and make a final 

recommendation for the petrale changes 

in 2009 and 2010, and make its initial 

recommendations for management for 

2011 and beyond. NMFS anticipates 

implementing a final rule for 2009 and 

2010 in October. The canary rockfish 

assessment was an update of the prior 

assessment, incorporating revised 

historic catch data. This assessment 

concluded that the stock is more 

depleted than the previous assessment 

had indicated. The Council approved 

the new stock assessment, and the 

assessment authors will develop a 

rebuilding analysis. The Council will 

use the results of the rebuilding analysis 

in November to consider likely revisions 

to the rebuilding plan for 2011 and 

beyond and to recommend OY and 

harvest revisions in 2010. NMFS 

anticipates implementing the final rule 

for 2010 in December 2009. 

This action is needed to respond to 

the most recently available stock status 

information during the remainder of 

2009 and in 2010, while NMFS and the 

Council complete the stock assessments, 

revised rebuilding plans, EIS, and full 

rulemaking for the 2011 and 2012 

specifications and management 

measures for the entire groundfish 

fishery. 

The interim measures being proposed 

in this rule in combination with the 

existing regulations are designed to 

prevent the stock status of petrale sole 

from falling below the overfished 

threshold at the beginning of 2011, or to 

speed the rebuilding of petrale sole if it 

is found to be overfished. These interim 

measures are also intended to facilitate 

rebuilding and to ease negative impacts 

on industry from the anticipated lower 

2011–2012 canary rockfish harvest 

specifications, and more restrictive 

management measures. 

The Council’s policies on setting 

ABCs, OYs, other harvest specifications, 

and management measures are 

discussed in the preamble to the 

December 31, 2008, proposed rule (73 

FR 80516) for 2009–2010 harvest 

specifications and management 

measures. 

Routine management measures, as 

described in the preamble to the 2009– 

2010 harvest specifications and 

management measure proposed rule (73 

FR 80516, December 31, 2008), will 

continue to be adjusted to modify 

fishing behavior during the fishing year 

to allow a harvest specification to be 

achieved, or to prevent a harvest 

specification from being exceeded. 

The following preamble discussion is 

divided into two parts: harvest 

specifications and management 

measures for petrale sole in 2009 and 

2010; and harvest specifications and 

management measures for canary 

rockfish in 2010. 

Harvest Specifications and 

Management Measures for Petrale Sole 

in 2009–2010 

2004 Petrale Sole Stock Assessment 

Petrale sole was last assessed in 2004. 

The result of that stock assessment was 

the best available science at the time 

that the 2007–2008 and the 2009–2010 

harvest specifications were developed. 

For additional discussion of the results 

of the 2004 petrale sole stock 

assessment, see the September 29, 2006 

proposed rule (71 FR 57764). The 2009– 

2010 ABCs are based on the 2004 stock 

assessment which used the default F 40 

percent FMSY proxy and the 2009–2010 

OYs are derived using the 40–10 harvest 

policy applied to the ABC for both the 

northern and southern assessment areas. 

Also an additional 25 percent reduction 

was made in the OY contribution for the 

southern area due to assessment 

uncertainty, as a precautionary measure. 

The March 6, 2009 final rule (74 FR 

9874) established the 2009 and 2010 

coastwide petrale sole harvest 

specifications, including the OYs of 

2,433 mt in 2009 and 2,393 mt in 2010. 

2009 Petrale Sole Stock Assessment 

A new, full stock assessment for 

petrale sole was presented to the 

Council at their June 2009 meeting. The 

draft assessment indicated the stock is 

depleted to 11.6 percent of its unfished 

biomass. If the Bmsy management target 

remained the same as in the 2004 

assessment, at 40 percent of the 

unfished biomass using the proxy for 

BMSY, the 2009 stock assessment 

indicates that petrale sole would be 

overfished in 2011. However, the stock 

assessment review panel recommended 

establishing a management target using 

the biomass that would support 

maximum sustainable yield (BMSY) as 

determined from the assessment 

(referred to as a directly-estimated 

Bmsy, as opposed to proxy BMSY). This 

management target was recommended, 

rather than the standard proxy BMSY, 

given that BMSY is well estimated. The 

Groundfish FMP allows use of a 

directly-estimated BMSY target and 

defines the overfished level as no less 

than 50 percent of the directly-estimated 

BMSY. The draft assessment estimates 

the stock spawning biomass is at 61 

percent of the directly-estimated BMSY 

and therefore may not be overfished 

under a directly-estimated BMSY target. 

The Council’s Scientific and 

Statistical Committee (SSC) did not 

recommend the petrale sole assessment 

for management decision-making at 

their June 2009 meeting, but will review 

it further during summer 2009, and it 

will be presented for final adoption at 

the Council’s September 2009 meeting. 

The SSC will also further explore the 

use of a deterministic BMSY target for 

the stock when they meet this summer. 

While the petrale sole assessment is not 

yet adopted for use in making 

management decisions, projections from 

the draft assessment indicate that stock 

spawning biomass will be driven to a 

lower level of depletion if the entire 

2009 and 2010 OYs are taken. If the 

entire current 2009 and 2010 OYs are 

taken, by 2011 the spawning biomass is 

projected to decline to less than 50 

percent of directy-estimated BMSY in 

this case, which is an overfished state 

even under a deterministic BMSY target. 

Changes to Petrale Sole Harvest 

Specifications 

At their June 2009 meeting, the 

Council identified a point of concern 

under FMP section 6.2.2 and 

recommended that NMFS take action to 

reduce harvest of petrale sole in 2009 

and 2010 in response to the preliminary 

results of the new 2009 stock 

assessment. The primary purpose of this 

recommendation is to prevent the status 

of the petrale sole stock from falling 

below the overfished threshold at the 

start of 2011. 

In June 2009, the Groundfish 

Management Team (GMT), an advisory 

body to the Council, prepared a 


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preliminary analysis of a range of 

petrale sole harvest levels for Council 

consideration. This analysis examined 

how different levels of petrale sole 

harvest in 2009 and 2010 affected the 

petrale sole stock status at the beginning 

of 2011, under the base case model in 

the preliminary 2009 petrale sole stock 

assessment. Based on the results of the 

GMTs preliminary analysis, the Council 

chose a preliminary preferred 

alternative to reduce the existing 2010 

petrale sole coastwide OY by 1,200 mt. 

This action proposes to establish a new 

2010 petrale sole coastwide OY of 1,193 

mt (Table 2a). 

Though this action does not propose 

a change in harvest specifications for 

petrale sole in 2009, it does propose 

changes to management measures in 

order to reduce projected mortality of 

petrale sole in 2009 by approximately 

400 mt. Implementing management 

measures that reduce petrale sole catch 

in 2009, when combined with 

reductions in the petrale sole OY for 

2010 (and concurrent changes to 

management measures), results in an 

increase from 9 percent unfished 

biomass to 13 percent unfished biomass 

and from 48 percent to 68 percent of the 

directy-estimated BMSY under the base 

case model in the preliminary 2009 

stock assessment. 

Based on the analysis presented 

above, the Council recommended and 

NMFS is proposing the following 

changes to petrale sole harvest 

specifications: reducing the 2010 petrale 

sole coastwide OY of 2,393 mt by 1,200 

mt, resulting in a new 2010 coastwide 

petrale sole OY of 1,193 mt. This 

proposed change is listed in Table 2a to 

50 CFR 660, Subpart G. 

Changes to Management Measures 

Affecting Petrale Sole 

Petrale sole is almost exclusively 

caught in the limited entry non-whiting 

commercial trawl fishery. Therefore, 

proposed changes to management 

measures are only considered in the 

limited entry non-whiting trawl fishery. 

The Council recommended preliminary 

preferred alternative management 

measures for November-December 2009 

and for January-December 2010 to 

reduce projected catch of petrale sole by 

approximately 400 mt in 2009 and to 

prevent projected mortality of petrale 

sole from exceeding the preliminary 

preferred 2010 petrale sole OY. In order 

to reduce projected catches of petrale 

sole in 2009 and 2010 this proposed 

rule adjusts management measures that 

are routinely adjusted during the year to 

respond to updated fishery information, 

as described at § 660.370, and does not 

impose any new management measures. 

The Council’s preliminary preferred 

alternative management measures result 

in approximately 1,995 mt projected 

catch of petrale sole in 2009 and 

approximately 1,178 mt projected catch 

of petrale sole in 2010. Changes to 

management measures include adjusting 

the seaward boundary of the trawl RCA 

coastwide and reducing petrale sole 

cumulative trip limits and/or sub-limits 

for all trawl gears coastwide. 

Based on the need to reduce catches 

in 2009 and 2010 to prevent petrale sole 

stock status from falling below the 

overfished threshold at the beginning of 

2011, the Council recommended and 

NMFS is proposing changes to 

management measures in NovemberDecember 2009 and for all of 2010. For 

November-December (Period 6) 2009, 

the Council recommended and NMFS is 

proposing the following: shifting the 

seaward boundary of the trawl RCA to 

a boundary line approximating the 200– 

fm (366–m) depth contour North of 40 

10’ N. lat.; and reducing petrale sole 

cumulative trip limits and/or sub-limits 

to 2,000 lb (907 kg) per two months for 

vessels using all limited entry trawl gear 

types, coastwide. These proposed 2009 

changes are shown in 2009 tables 3 

(North) and 3 (South). For 2010, the 

Council recommended and NMFS is 

proposing the following: shifting the 

seaward boundary of the trawl RCA to 

a boundary line approximating the 200– 

fm (366–m) depth contour from JanuaryApril (Periods 1 and 2) and SeptemberDecember (Periods 5 and 6) North of 40 

10’ N. lat.; shifting the seaward 

boundary of the trawl RCA to a 

boundary line approximating the 200– 

fm (366–m) depth contour from JanuaryDecember South of 40 10’ N. lat.; 

reducing petrale sole cumulative trip 

limits and/or sub-limits to 1,000 lb (454 

kg) per two months for vessels using all 

limited entry trawl gear types, 

coastwide, during January-February 

(Period 1) and November-December 

(Period 6); reducing petrale sole sublimits to 18,000 lb (8,165 kg) per two 

months for vessels using all limited 

entry trawl gear types, coastwide, from 

March-October (Periods 2 through 5). 

These proposed changes to 2010 trip 

limits are shown in 2010 Tables 3 

(North) and 3 (South). 

Harvest Specifications and 

Management Measures for Canary 

Rockfish in 2010 

2007 Canary Rockfish Stock Assessment 

Canary rockfish was last assessed in 

2007. The results of that stock 

assessment and rebuilding analysis were 

the basis for the 2009–2010 harvest 

specifications, and represented the best 

available science at that time. For 

additional discussion of the results of 

the 2007 canary rockfish stock 

assessment, see the December 31, 2008 

proposed rule, 73 FR 80516. The 2009– 

2010 harvest specifications and 

revisions to the rebuilding plan for 

canary rockfish were established on 

March 1, 2009. The approach used for 

setting the 2009–2010 harvest 

specifications for canary rockfish was 

the same as that used for setting the 

2007–2008 harvest specifications under 

FMP Amendment 16–4. The 2007 stock 

assessment fundamentally changed the 

understanding of stock productivity. 

The SSC, therefore, recommended 

changing the Am. 16–4 rebuilding plan. 

In the rebuilding plan, the Council 

revised the target rebuilding year from 

2063 to 2021 (which was two years 

longer than F0), but maintained the 

existing SPR of 88.7%. Nonetheless, the 

adopted OY for 2009 and 2010 of 105 

mt was based on a more conservative 

SPR of 92.2%. The March 6, 2009 final 

rule (74 FR 9874) established the 2009 

and 2010 coastwide canary rockfish 

harvest specifications, including the 

OYs of 105 mt in 2009 and 2010. 

2009 Canary Rockfish Stock Assessment 

An updated stock assessment for 

canary rockfish was presented to the 

Council at their June 2009 meeting. The 

stock assessment indicated the canary 

rockfish stock is depleted to 23.7 

percent of its unfished biomass, 

compared with a 32.4 percent depletion 

in 2007. The stock is increasing, but 

based on the new information in the 

new stock assessment, the rebuilding 

plan will need to be revised, and it is 

anticipated that lower OYs will be 

required. The Council’s SSC 

recommended the canary rockfish 

assessment for management decisionmaking at their June 2009 meeting. At 

the November Council meeting the 

PFMC will receive the rebuilding 

analysis for canary rockfish based on the 

2009 stock assessment, for use in the 

2011–2012 specifications process. At 

that time the Council will also decide 

whether to recommend a revision to the 

2010 canary rockfish OY in order to 

smooth the transition to the revised 

rebuilding plan and to facilitate 

rebuilding. 

Changes to 2010 Canary Rockfish OY 

At their June 2009 meeting, the 

Council recommended that NMFS take 

action to reduce catches of canary 

rockfish in 2010 in response to the 

results of the new 2009 stock 

assessment update. The primary 

purpose of taking precautionary 

measures is to facilitate rebuilding of 


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canary rockfish, and to reduce the 

socioeconomic impacts of a sudden 

reduction in harvest specifications that 

will likely be implemented in 2011. 

Under the FMP, harvest specifications 

for species subject to rebuilding 

requirements may be modified during 

the biennium if the Council determines 

they are not adequately conservative to 

meet rebuilding plan goals. FMP Section 

5.5.1 

Canary rockfish is currently 

overfished and subject to a rebuilding 

plan. The results of the new rebuilding 

analysis, that will be based on the new 

stock assessment update, are scheduled 

to be presented to the Council at their 

October 31–November 5, 2009, meeting. 

At that time, while the Council is 

considering revisions to the rebuilding 

plan for 2011 and beyond, they will also 

consider whether changes should be 

made in 2010 for the reasons explained 

above. 

Based on the need to first consider the 

new rebuilding analysis for 2011–2012 

OYs, the Council has not chosen a 

preferred canary rockfish OY alternative 

for 2010. Therefore, a range of OYs 

between 44 mt and 105 mt is proposed 

in Table 2a of this proposed rule. No 

changes to catch apportionment of the 

new 2010 OY are proposed at this time; 

however, the Council may consider 

changes to canary rockfish catch 

apportionment at their September or 

November 2009 meetings. A final 

preferred alternative for canary rockfish 

OY in 2010 will be considered in a 

supplement to the EA. Changes to 2010 

canary rockfish harvest specifications 

would be implemented in a separate 

final rule, after the November 2009 

Council meeting. Any revisions are 

anticipated to be in effect on January 1, 

2010. 

Changes to Management Measures 

Affecting Canary Rockfish 

Canary rockfish are caught 

incidentally in almost every sector of 

the Pacific Coast groundfish fishery, 

North of 34° 27’ N. lat. To reduce 

projected catch of canary rockfish below 

a lower 2010 OY would likely require 

that additional restrictions be placed on 

the following fisheries: limited entry 

non-whiting trawl; limited entry nontribal whiting trawl; Washington, 

Oregon, and northern California 

recreational groundfish; and nearshore 

commercial non-trawl. The types of 

potential management changes include, 

but are not limited to: expansion of the 

trawl RCA to close areas with high 

canary bycatch for all or part of the year; 

expansion of the non-trawl RCA to close 

areas with high canary bycatch for all or 

part of the year; reductions in trip limits 

for co-occurring shelf species in both 

the LE trawl fishery and in the LE fixed 

gear fishery and open access 

commercial fishery; reductions in trip 

limits for vessels using selective flatfish 

trawl gear; reductions in recreational 

fishery season length; closures of 

recreational fisheries in some areas of 

the coast for a portion of the year; 

reduction in recreational bag limits for 

rockfish or other co-occurring species; a 

reduction in the bycatch limit for canary 

rockfish in the LE non-tribal whiting 

fishery; and the non-whiting Exempted 

Fishing Permits (EFPs) may also be 

restricted or terminated in 2010 to 

reduce their projected catch of canary 

rockfish (approximately 2.7 mt). 

At their November 2009 meeting 

where the Council will consider 

potential changes to the 2010 OY, the 

Council will consider a wide range of 

routine management measure 

alternatives for reducing projected 

catches of canary rockfish to stay within 

the new OY. Consideration of new 

rebuilding information and potential 

changes to routine management 

measures will allow the Council to 

recommend interim measures that 

would reduce canary rockfish impacts 

in 2010. A final preferred alternative for 

canary rockfish management measures 

in 2010 will be considered in a 

supplement to the EA. Changes to 

management measures to reduce 

projected catch of canary rockfish will 

be implemented in a separate final rule, 

after the November 2009 Council 

meeting. These management measures 

are anticipated to be in effect on January 

1, 2010. 

Classification 

At this time, NMFS has preliminarily 

determined that the revisions to 2009– 

2010 harvest specifications and 

management measures for canary 

rockfish and petrale sole proposed in 

this rule are consistent with the national 

standards of the Magnuson-Stevens Act 

and other applicable laws. NMFS, in 

making the final determination, will 

take into account the data, views, and 

comments received during the comment 

period. 

A DEA was prepared for the revisions 

to the 2009–2010 harvest specifications 

and management measures for petrale 

sole and canary rockfish. A copy of the 

DEA is available online at http:// 

www.nwr.noaa.gov/. 

The Council considered two sets of 

alternatives for revising the 2009–2010 

harvest specifications and management 

measures for petrale sole and canary 

rockfish. The first set of alternatives 

considered more restrictive management 

measures to reduce catch of petrale sole 

in 2009 and new harvest specifications 

for petrale sole in 2010 and management 

measures necessary to keep projected 

impacts to petrale sole below the new 

2010 OY. The second set of alternatives 

considered new harvest specifications 

for canary rockfish in 2010 and a range 

of management measures necessary to 

keep projected impacts to canary 

rockfish below the alternative 2010 OYs. 

The range of management measure 

alternatives intended to keep total catch 

of canary at the low end of the ABC/OY 

alternatives are considered here, since 

these were the alternatives the Council 

evaluated in the 2009 and 2010 

rulemaking for their effects on small 

entities. 

NMFS has initially determined that 

this proposed rule is not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA). The IRFA describes the 

economic impact this proposed rule, if 

adopted, would have on small entities. 

A summary of the analysis follows. A 

copy of this analysis is available from 

NMFS (see ADDRESSES). 

The Small Business Administration 

has established size criteria for all major 

industry sectors in the US including fish 

harvesting and fish processing 

businesses. The RFA recognizes and 

defines three kinds of small entities: 

small businesses, small organizations, 

and small governmental jurisdictions. 

Most permit owners and vessel 

owners are independent fishermen who 

are owner/operators of their vessel or 

members of family owned businesses or 

members of small partnerships. As such, 

they are considered to be a small 

business. Because canary rockfish is 

taken as bycatch in most groundfish 

fisheries the description of small 

entities associated with the 2009 EIS (73 

FR 80516) is applicable. The Council 

estimates that nearly 2,600 small 

entities harvest groundfish. These 

entities include those that either target 

groundfish or harvest groundfish as 

bycatch and include limited entry 

trawlers and fixed gear, open access 

participants, the west coast charterboat 

fleet, and the tribal fleets. Included in 

this estimate are businesses, probably 

fewer than 30, that should be classified 

as ‘‘large’’ businesses as they are 

affiliates or components of large 

processing companies. Following past 

practice, the Council classifies the four 

catcher-processors that fish and process 

in the whiting fishery ‘‘large’’ entities as 

they are components of large 

international seafood companies. Noting 

the exceptions above, the Council has 

classified all harvesters in the 


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groundfish fishery as ‘‘small 

businesses.’’ 

In summary, using Small Business 

Administration standards, most of the 

estimated 2,600 entities that harvest 

groundfish are small businesses. The 

exceptions are the catcher vessels who 

also fish off Alaska, some shoreside 

processors, and all catcher-processors 

and motherships (less than 30) that are 

affiliated with larger processing 

companies or large international seafood 

companies. 

Under the no action petrale sole 

alternative, groundfish revenues by the 

non-whiting trawl fleet would be about 

$28 million in 2009 and in 2010. Under 

the Council’s preferred alternative (P2), 

the 139 vessels in this fishery would 

collectively earn $27 million in 2009 

and $26 million in 2010. Between 30 

and 35 of these vessels would see their 

revenues fall by more than 5 percent. 

By reducing the 2009 petrale sole 

harvest and the 2010 petrale sole OY, 

we may prevent petrale sole from being 

in an overfished status in 2011, or speed 

the rebuilding of petrale if it is found to 

be overfished. By reducing the 2010 

canary OY we may facilitate rebuilding 

of canary rockfish and ease the negative 

impact on industry from the reduced 

canary rockfish harvest specifications 

that will likely result in 2011–2012 from 

the new stock assessment and 

rebuilding analysis. 

There are no reporting, recordkeeping 

or other compliance requirements in the 

proposed rule. 

No Federal rules have been identified 

that duplicate, overlap, or conflict with 

this action. 

NMFS issued Biological Opinions 

under the ESA on August 10,1990, 

November 26,1991, August 28,1992, 

September 27,1993, May 14, 1996, and 

December 15, 1999 pertaining to the 

effects of the Pacific Coast groundfish 

FMP fisheries on Chinook salmon 

(Puget Sound, Snake River spring/ 

summer, Snake River fall, upper 

Columbia River spring, lower Columbia 

River, upper Willamette River, 

Sacramento River winter, Central Valley 

spring, California coastal), coho salmon 

(Central California coastal, southern 

Oregon/northern California coastal), 

chum salmon (Hood Canal summer, 

Columbia River), sockeye salmon (Snake 

River, Ozette Lake), and steelhead 

(upper, middle and lower Columbia 

River, Snake River Basin, upper 

Willamette River, central California 

coast, California Central Valley, south/ 

central California, northern California, 

southern California). These biological 

opinions have concluded that 

implementation of the FMP for the 

Pacific Coast groundfish fishery was not 

expected to jeopardize the continued 

existence of any endangered or 

threatened species under the 

jurisdiction of NMFS, or result in the 

destruction or adverse modification of 

critical habitat. 

NMFS reinitiated a formal section 7 

consultation under the ESA in 2005 for 

both the Pacific whiting midwater trawl 

fishery and the groundfish bottom trawl 

fishery. The December 19, 1999, 

Biological Opinion had defined an 

11,000 Chinook incidental take 

threshold for the Pacific whiting fishery. 

During the 2005 Pacific whiting season, 

the 11,000 fish Chinook incidental take 

threshold was exceeded, triggering 

reinitiation. Also in 2005, new data 

from the West Coast Groundfish 

Observer Program became available, 

allowing NMFS to complete an analysis 

of salmon take in the bottom trawl 

fishery. 

NMFS prepared a Supplemental 

Biological Opinion dated March 11, 

2006, which addressed salmon take in 

both the Pacific whiting midwater trawl 

and groundfish bottom trawl fisheries. 

In its 2006 Supplemental Biological 

Opinion, NMFS concluded that catch 

rates of salmon in the 2005 whiting 

fishery were consistent with 

expectations considered during prior 

consultations. Chinook bycatch has 

averaged about 7,300 fish over the last 

15 years and has only occasionally 

exceeded the reinitiation trigger of 

11,000 fish. 

Since 1999, annual Chinook bycatch 

has averaged about 8,450 fish. The 

Chinook ESUs most likely affected by 

the whiting fishery has generally 

improved in status since the 1999 

section 7 consultation. Although these 

species remain at risk, as indicated by 

their ESA listing, NMFS concluded that 

the higher observed bycatch in 2005 

does not require a reconsideration of its 

prior ‘‘no jeopardy’’ conclusion with 

respect to the fishery. For the 

groundfish bottom trawl fishery, NMFS 

concluded that incidental take in the 

groundfish fisheries is within the 

overall limits articulated in the 

Incidental Take Statement of the 1999 

Biological Opinion. The groundfish 

bottom trawl limit from that opinion 

was 9,000 fish annually. NMFS will 

continue to monitor and collect data to 

analyze take levels. NMFS also 

reaffirmed its prior determination that 

implementation of the Groundfish FMP 

is not likely to jeopardize the continued 

existence of any of the affected ESUs. 

Lower Columbia River coho (70 FR 

37160, June 28, 2005) were recently 

listed and Oregon Coastal coho (73 FR 

7816, February 11, 2008) were recently 

relisted as threatened under the ESA. 

The 1999 biological opinion concluded 

that the bycatch of salmonids in the 

Pacific whiting fishery were almost 

entirely Chinook salmon, with little or 

no bycatch of coho, chum, sockeye, and 

steelhead. The Southern Distinct 

Population Segment (DPS) of green 

sturgeon (71 FR 17757, April 7, 2006) 

were also recently listed as threatened 

under the ESA. As a consequence, 

NMFS has reinitiated its Section 7 

consultation on the PFMC’s Groundfish 

FMP. 

After reviewing the available 

information, NMFS concluded that, in 

keeping with Sections 7(a) (2) and 7(d) 

of the ESA, the proposed action would 

not result in any irreversible or 

irretrievable commitment of resources 

that would have the effect of foreclosing 

the formulation or implementation of 

any reasonable and prudent alternative 

measures. 

With regards to marine mammals, sea 

turtles, and seabirds, we are reviewing 

the available data on fishery interactions 

and have entered into pre-consultation 

with the United States Fish and Wildlife 

Service, NMFS and other Federal 

agencies. In additions, we have begun 

discussions with Council staff on the 

process to address the concerns, if any, 

that arise from our review of the data. 

Pursuant to Executive Order 13175, 

this proposed rule was developed after 

meaningful consultation and 

collaboration with tribal officials from 

the area covered by the FMP. Under the 

Magnuson-Stevens Act at 16 U.S.C. 

1852(b)(5), one of the voting members of 

the Pacific Council must be a 

representative of an Indian tribe with 

federally recognized fishing rights from 

the area of the Council’s jurisdiction. 

List of Subjects in 50 CFR Part 660 

Fisheries, Fishing, Indian Fisheries. 

Dated: September 8, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 660 is proposed 

to be amended as follows: 

PART 660—FISHERIES OFF WEST 

COAST STATES 

1. The authority citation for part 660 

continues to read as follows: 

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

U.S.C. 773 et seq. 

2. Tables 2a and 2c to part 660, 

subpart G, and footnotes ‘‘/k’’ and ‘‘/r’’ 

are revised to read as follows: 

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* * * * * 

/k A petrale sole stock assessment was 

prepared for 2005. In 2005 the petrale 

sole stock was estimated to be at 32 

percent of its unfished biomass 

coastwide (34 percent in the northern 

assessment area and 29 percent in the 

southern assessment area). The 2010 

ABC of 2,751 mt is based on the 2005 

assessment with a F40% FMSY proxy. 

To derive the 2010 OY, the 40 10 

harvest policy was applied to the ABC 

for both the northern and southern 

assessment areas. As a precautionary 

measure, an additional 25 percent 

reduction was made in the OY 

contribution for the southern area due to 

assessment uncertainty. As another 

precautionary measure, an additional 

1,200 mt reduction was made in the 

coastwide OY due to preliminary results 

of the more pessimistic 2009 stock 

assessment. The coastwide OY is 1,193 

mt in 2010. 

* * * * * 

/r A canary rockfish stock assessment 

was completed in 2007 and the stock 

was estimated to be at 32.7 percent of 

its unfished biomass coastwide in 2007. 

The coastwide ABC of 940 mt is based 

on a FMSY proxy of F50%. The OY of 

105 mt is based on a rebuilding plan 

with a target year to rebuild of 2021 and 

a SPR harvest rate of 88.7 percent. An 

OY of 44 mt or 85 mt would be based 

on a new rebuilding analysis to be 

considered in November 2009. 

* * * * * 

3. Beginning November 1, 2009, 

Tables 3 (North) and 3 (South) to part 

660, subpart G are revised to read as 

follows: 

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* * * * * 4. Beginning January 1, 2010, Tables 

3 (North) and 3 (South) to part 660, 

subpart G are revised to read as follows: 


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* * * * * 

[FR Doc. E9–21960 Filed 9–10–09; 8:45 am] 

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