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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 060824226-6322-02]
          - RIN 0648-AV69

# AGENCY:

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

# ACTION:

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

# SUMMARY:

This final rule announces inseason changes to management measures in the commercial Pacific Coast groundfish fishery.  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) August 1, 2007.  Comments on this final rule must be received no later than 5 p.m., local time on August 6, 2007.

# ADDRESSES:

 You may submit comments, identified by RIN 0648-AV69 by any of the following methods:
      - E-mail: Inseason2.nwr@noaa.gov . Include RIN 0648-AV69 in the subject line of the message.                    
      - Federal eRulemaking Portal: http://www.regulations.gov .  Follow the instructions for submitting comments.                    
      - Fax: 206-526-6736, Attn: Gretchen Arentzen
      - Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen.

# 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 Website at                     *http://www.gpoaccess.gov/​fr/​index.html*.  Background information and documents are available at the Pacific Fishery Management Council's (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 2007-2008 specifications and management measures for the Pacific Coast groundfish fishery and Amendment 16-4 of the FMP was published on September 29, 2006 (71 FR 57764).  The final rule to implement the 2007-2008 specifications and management measures for the Pacific Coast Groundfish Fishery was published on December 29, 2006 (71 FR 78638).  These specifications and management measures were codified in the CFR (50 CFR part 660, subpart G).  The final rule was subsequently amended on:  March 20, 2007 (71 FR 13043); and April 18, 2007 (72 FR 19390).

Changes to current 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 June 11-15, 2007, meeting in Foster City, California.  At that meeting, the Pacific Council recommended adjusting current groundfish management measures to respond to updated fishery information and other inseason management needs.  The Pacific Council recommended:  (1) moving the seaward boundary of the Limited Entry Trawl Rockfish Conservation Area (RCA) between Cascade Head (45°03.83′ N. lat.) and the Columbia River (46°16′ N. lat.) from a line approximating the 150-fm (274-m) depth contour to a line approximating the 200-fm (366-m) depth contour; (2) increasing the 2-month cumulative limit in the limited entry trawl fishery for longspine thornyheads using large and small footrope gear north of 40°10′ N. lat.; (3) increasing the 2-month cumulative limit in the limited entry trawl fishery south of 40°10′ N. lat. for Dover sole; (4) increasing the monthly cumulative limit in the limited entry trawl fishery for chilipepper rockfish using small footrope gear south of 40°10′ N. lat.; (5) increasing the 2-month cumulative limit in the limited entry fixed gear fishery for shortspine thornyheads south of 34°27′ N. lat.; (6) combining the 2-month cumulative limits for shelf rockfish, widow rockfish and bocaccio, in the limited entry fixed gear fishery, between 40°10′ N. lat. and 34°27′ N. lat. into a single 2-month cumulative limit starting September 1; (7) increasing the daily and weekly limits in the open access sablefish daily trip limit (DTL) fishery south of 36° N. lat.. 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, optimum yields (OYs).

## Limited Entry Trawl Fishery Management Measures

At its March 2007 meeting, the Council received a NMFS report indicating higher than anticipated canary rockfish bycatch rates by selective flatfish trawl gear vessels fishing shoreward of the trawl RCA in 2005.  The Council responded to this new information by restricting access to some shoreward fishing areas north of 40°10' N. lat. and by liberalizing fishing opportunities seaward of the RCA to encourage a shift of effort to offshore waters in the 2007 limited entry non-whiting trawl fisheries (71 FR 19390, April 18, 2007).  The Council expected these inseason adjustments to result in a decreased canary rockfish bycatch in the 2007 limited entry non-whiting trawl fisheries, but with a possible higher bycatch of darkblotched rockfish, a slope rockfish, with impacts for both species projected to stay within their respective OYs.

                    At its June 2007 meeting, the Council considered the most recently available information on groundfish landings and on updated projections of groundfish species total catches, and concluded that the April inseason adjustments effectively reduced canary rockfish impacts in the 2007 limited entry non-whiting trawl fishery.  However, effort shifts by limited entry trawl vessels to areas seaward of the trawl RCA were greater than anticipated, resulting in a higher bycatch of darkblotched rockfish than projected in the area between Cascade Head (45°03.83′ N. lat.) and the Columbia River (46°16′ N. lat.).  Under the previously adopted RCA schedule, the seaward boundary in this area was scheduled to shift from the line approximating the 150-fm (274-m) depth contour to the line approximating the 200-fm (366-m) depth contour beginning September 1; however, further reduction in the impacts of effort shifts to darkblotched rockfish is necessary.  Therefore, the Council recommended and NMFS is                           ( print page 36618)                        implementing an expansion of the limited entry non-whiting trawl RCA between Cascade Head and the Columbia River by adjusting the seaward boundary to the line approximating the 200-fm (366-m) depth contour beginning August 1.                

The Council also considered adjustments to trip limits in the limited entry non-whiting trawl fishery.  Available catch limits of longspine thornyheads taken with large and small footrope trawl gear north of 40°10′ N. lat., Dover sole south of 40°10′ N. lat., and chilipepper rockfish taken with small footrope trawl gear south of 40°10′ N. lat. are being attained by participating vessels.  The Council considered increases to trip limits for these species and the potential impacts on overall catch levels and overfished species.  The most recently available information as of June 25, 2007, indicates that 19 percent (411 mt out of the 2,220 mt OY) of the longspine thornyhead OY north of 34°27′ N. lat. and 27 percent (4,555 mt out of the 16,500 mt OY) of the coastwide Dover sole OY have been taken through June 16, 2007.  These projections are below the anticipated catch projections through June, and continuing the trawl fishery under these limits is projected to prevent the fishery from attaining the OYs for these species.  Modest increases to longspine thornyhead and Dover sole cumulative limits are expected to increase overall catch levels, but those increases are predicted to be within the 2007 OYs for these species and are not expected to result in greater than projected overfished species impacts.

Therefore, the Council recommended and NMFS is implementing the following trip limit changes for the limited entry trawl fishery:  (1) North of 40°10' N. lat., increase longspine thornyhead limits using large and small footrope gear from 22,000 lb (9,979 kg) per 2 months to 25,000 lb (11,340 kg) per 2 months beginning in period 4; and (2) south of 40°10' N. lat., increase Dover sole limits from 70,000 lb (31,751 kg) per 2 months to 80,000 lb (36,287 kg) per 2 months beginning in period 4.

Chilipepper rockfish are an abundant species taken in common with other rockfish in the southern shelf rockfish complex.   Based on the most recently available West Coast Groundfish Observer Program (WCGOP) data, chilipepper rockfish are being regularly discarded under current trip limits for small footrope trawl gear south of 40°10' N. lat.  OYs for chilipepper rockfish have not come close to being achieved in recent years.  For example, in the 2005 limited entry trawl and fixed gear fishery, the chilipepper rockfish landings were 28 mt, less than 3 percent of the 1099 mt chilipepper rockfish OY.  The Council considered increasing chilipepper rockfish limits to accommodate some of this discard while keeping limits low enough to prevent targeting.  Targeting of chilipepper rockfish could increase impacts to bocaccio and widow rockfish, co-occurring overfished species.  Current catch projections estimate that less than 80 percent of the 2007 OYs will be obtained for either bocaccio or widow rockfish by the end of the year; therefore, if unexpected targeting of chilipepper rockfish were to occur, and higher than expected bycatch of bocaccio and widow rockfish occurs, bocaccio and widow rockfish total catch could be expected to remain within 2007 OYs.  Therefore, the Council recommended and NMFS is implementing the following trip limit changes for the limited entry trawl fishery:  South of 40°10′ N. lat., increase chilipepper rockfish limits using small footrope trawl gear from 500 lb (227 kg) per month to 800 lb (363 kg) per month beginning August 1.

## Limited Entry Fixed Gear Trip Limits South of 40°10′ N. Lat.

As of May 31, 2007, the total shortspine thornyhead landings south of 34°27′ N. lat. were estimated to be 60.6 mt out of a 421 mt OY.  The Council considered increases to the shortspine thornyhead cumulative limits south of 34°27′ N. lat., and discussed concerns with possible effort shifts.  Increases in effort in this area could result in higher sablefish catch and higher catches of other species.  Estimates show that sablefish catches in this area are lower than they had been predicted to be at the beginning of the year.  The Council recommended a short term increase in shortspine thornyhead cumulative limits to balance the potential impacts on sablefish from a possible effort shift and the large amount of shortspine thornyheads available for harvest.  The Council will consider further adjustments to shortspine thornyhead cumulative limits upon receipt of additional fishery information later in the year.  Shortspine thornyheads are a slope rockfish species and most of the overfished species south of 36° N. lat. are shelf species, so no increased impacts on overfished species are expected to occur as a result of increasing shortspine thornyhead trip limits. 

The Council also considered industry concerns regarding high discard rates of minor shelf, bocaccio, and widow rockfish in the fixed gear fishery between 40°10′ N. lat. and 37° N. lat. and a request to combine bocaccio, chilipepper, and widow rockfish into a single combined limit with minor shelf rockfish between 40°10′ N. lat. and 37° N. lat.  The Council had concerns with the impacts to overfished species by combining chilipepper rockfish cumulative limits into a single cumulative limit with minor shelf, bocaccio and widow rockfish, since the high abundance of chilipepper rockfish would result in a combined limit too high to be supported by less abundant species in the complex.  Leaving cumulative limits for chilipepper rockfish separate, while combining minor shelf, bocaccio and widow rockfish into a single cumulative limit, will allow the industry increased flexibility in retention opportunities and is expected to reduce discard without affecting overfished species catch levels. 

Therefore, the Council recommended, and NMFS is implementing the following changes for the limited entry fixed gear fishery:  (1) South of 34°27′ N. lat., increase the shortspine thornyhead limits from 2,000 lb (907 kg) per 2 months to 3,000 lb (1,361 kg) per 2 months during period 4; (2) between 40°10′ N. lat. and 37° N. lat., combine the trip limit for bocaccio of 300 lb (136 kg) per 2 months and the trip limit for minor shelf rockfish, shortbelly rockfish, and widow rockfish of 300 lb (136 kg) per 2 months into a single cumulative trip limit of 500 lb (227 kg) per 2 months for:  bocaccio, minor shelf rockfish, shortbelly, and widow rockfish beginning September 1.

## Open Access Sablefish Daily Trip Limits South of 36° N. Lat. 

                    The Council considered an industry request to increase limits in the open access sablefish DTL fishery south of 36° N. lat. to allow available sablefish OY in this area to be harvested by providing fishing opportunities that would be equivalent to opportunities in recent years.  In October 2006, NMFS increased the daily limits south of 36° N. lat. from 350 lb (159 kg) per day to 500 lb (227 kg) per day (71 FR 58289, October 3, 2006), which resulted in a large shift in effort by vessels that had historically operated north of 36° N. lat., forcing reductions in the daily limit to 300 lb (136 kg) per day and an introduction of a 2 month cumulative limit of 3,000 lb (1,361 kg) per month in December 2006 in order to stay within the 2006 sablefish OY in this area (71 FR 69076, November 29, 2006).  The large increase in effort south of 36° N. lat. in 2006 was due, in part, to a highly restricted salmon fishing season and to the sablefish DTL fishery closure north of 36° N. lat.  As a precautionary                           ( print page 36619)                        approach, in the event that 2007 salmon fisheries were not improved from 2006, the Council recommended, and NMFS implemented decreases in the open access sablefish DTL fishery south of 40°10′ N. lat. for 2007-2008 to keep sablefish within their 2007-2008 OYs (71 FR 78638, December 29, 2006).  The 2007 salmon fishery is improved from 2006 and catch in the sablefish DTL fishery north of 36° N. lat. remains open and is not currently exceeding 2007 catch projections; therefore, the magnitude of effort shifts seen in 2006 are not likely to occur in 2007.  This action would not increase estimated impacts on overfished species, because estimated mortality for overfished species for the year assume that this sector will achieve its allocation.  Therefore, the Council recommended and NMFS is implementing an increase in the open access sablefish DTL fishery trip limits south of 36° N. lat. from “300 lb (136 kg) per day, or 1 landing per week of up to 700 lb (318 kg)” to “350 lb (159 kg) per day, or 1 landing per week of up to 1,050 lb (476 kg)”, beginning August 1.                 

## Classification

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

                    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.                

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to the 2007 groundfish management measures under 5 U.S.C. 553(b)(3)(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 part of the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) and 5 U.S.C. 553(d)(3).

The data upon which these recommendations were based was provided to the Council and the Council made its recommendations at its June 11-15, 2007, meeting in Foster City, CA.  There was not sufficient time after that meeting to draft this notice and undergo proposed and final rulemaking before these actions need to be in effect.  For the actions to be implemented in this notice, affording the time necessary for prior notice and opportunity for public comment would be impractical and contrary to the public interest because it would prevent the Agency from managing fisheries using the best available science to approach without exceeding the OYs for federally managed species.  The adjustments to management measures in this document affect commercial groundfish fisheries off Washington, Oregon, and California. 

Changes to the limited entry trawl RCA must be implemented in a timely manner by August 1, 2007, to reduce the projected bycatch of darkblotched rockfish, a groundfish species that is currently subject to rebuilding requirements.  Changes to the trawl RCA must be made to reduce the bycatch of darkblotched rockfish, so that the total catch of darkblotched rockfish stays within its 2007 OY, as defined in the rebuilding plan for this species.  It would be contrary to the public interest to wait to implement this RCA revision until after public notice and comment, because failing to make this regulatory change by August 1 could result in higher than projected darkblotched rockfish catch, ultimately risking early closure of fisheries important to coastal communities.

Changes to the cumulative limits in the non-whiting commercial fisheries must be implemented in a timely manner to relieve a restriction by allowing fishermen increased opportunities to harvest available healthy stocks.  Changes to cumulative limits for the following stocks must be implemented in a timely manner by August 1, 2007:  (1) Longspine thornyhead, Dover sole, and chilipepper rockfish cumulative limits in the limited entry trawl fishery; (2) shortspine thornyheads in the limited entry fixed gear fishery; and (3) cumulative limits in the open access sablefish DTL fishery.  These changes allow fishermen an opportunity to harvest higher trip limits for stocks with catch tracking behind their projected 2007 catch levels.  In the limited entry fixed gear fishery, changes that combine the limits for minor shelf rockfish, widow rockfish and bocaccio must be implemented in a timely manner by September 1, 2007, to provide fishermen an opportunity to harvest available healthy stocks by allowing increased flexibility in retention opportunities.  All of these cumulative limit changes are within projected mortality for overfished species.  All of these actions provide increased trip limits or regulatory flexibility.  Therefore, it would be contrary to the public interest to fail to relieve the current restrictions in a timely manner.

Delaying these changes would keep management measures in place that are not based on the best available data, which could risk fisheries exceeding their OY, or deny fishermen access to available harvest.  Such delay would impair achievement of one of the Pacific Coast Groundfish FMP objectives of providing for year-round harvest opportunities or extending fishing opportunities as long as practicable during the fishing year.

# List of Subjects in 50 CFR Part 660

      - Fisheries, and Fishing

Dated:  June 29, 2007.

James P. Burgess,

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

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

# PART 660—FISHERIES OFF WEST COAST STATES 

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

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

2. Tables 3 (North), 3 (South), 4 (South), and 5 (South) to part 660 subpart G are revised to read as follows. 
      ( print page 36620)          ( print page 36621)          ( print page 36622)          ( print page 36623)          ( print page 36624)          ( print page 36625)          ( print page 36626)          ( print page 36627)          ( print page 36628)    

[FR Doc. 07-3262 Filed 7-3-07; 8:45 am]

BILLING CODE 3510-22-S