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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XN80

# AGENCY:

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

# ACTION:

Notice; public comment on an application for exempted fishing permit.

# SUMMARY:

This notice announces the public comment period for an exempted fishing permit (EFP) application from the Best Use Cooperative (BUC). If granted, this permit would allow three BUC vessels to remove halibut from a codend on the deck, and release those fish back to the water after determining the physical condition of the halibut with the International Pacific Halibut Commission method for predicting halibut mortality. The EFP would allow operators of BUC non-pelagic trawl vessels to study methods for reducing halibut mortality in trawl fisheries by evaluating various fishing and handling practices. This activity has the potential to promote the objectives of the Magnuson-Stevens Fishery Conservation and Management Act by assessing techniques for reducing halibut discard mortality in non-pelagic trawl fisheries.

# DATES:

Written comments must be received by May 8, 2009.

# ADDRESSES:

Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-XN80,” by any one of the following methods:
      - E-mail: EFP0902@noaa.gov . Include in the subject line the following document identifier: “RIN 0648-XN80”. E-mail comments, with or without attachments, are limited to 5 megabytes;                    
      - Mail: P. O. Box 21668, Juneau, AK 99802.
      - Fax: 907-586-7557.
      - Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

                        Copies of the EFP application and the basis for a categorical exclusion under the National Environmental Policy Act are available by writing to the Alaska Region, NMFS, P. O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian. The application also is available from the Alaska Region, NMFS website at                         *http://alaskafisheries.noaa.gov/​*.                    

# FOR FURTHER INFORMATION CONTACT:

                        Jeff Hartman, 907-586-7442 or                         *jeff.hartman@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

NMFS manages the domestic groundfish fisheries in the Bering Sea and Aleutian Islands Management Area (BSAI) under the Fishery Management Plan for Groundfish of the BSAI (FMP), which the Council prepared under the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing the groundfish fisheries of the BSAI appear at 50 CFR parts 600 and 679. The FMP and the implementing regulations at § 600.745(b) and § 679.6 allow the NMFS Regional Administrator to authorize, for limited experimental purposes, fishing that would otherwise be prohibited. Procedures for issuing EFPs are contained in the implementing regulations.

                    The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (                    *Hippoglossus stenolepis*) through regulations established under the authority of the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention) and the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations pursuant to the Convention. The IPHC's regulations are subject to approval by the Secretary of State with concurrence from the Secretary of Commerce (Secretary).                

On March 23, 2009, NMFS published a notice for receipt of an application from the Best Use Cooperative (BUC) for an EFP that evaluates handling methods to improve discard survival of incidentally caught halibut (74 FR 12113). Review of the EFP application was included on the published agenda for the April 2009 North Pacific Fishery Management Council (Council) meeting. The Council's Scientific and Statistical Committee (SSC) and the Advisory Panel (AP) reviewed the application, provided opportunity for public comment, and recommended the Council approve issuance of the EFP. 

                    After hearing the recommendations of the SSC and AP, and not expressing disagreement with those recommendations, the Council did not further consider the EFP application and provided no additional method of public testimony on this item at the Council meeting. Regulations at § 600.745(b)(3) requires NMFS to provide opportunity for public comment on an EFP application either through a                     **Federal Register**                     notice and/or during a Council meeting. Because NMFS has determined that this application for an EFP warrants further consideration and because the public was not provided the opportunity to provide public comment to the Council at its April 2009 meeting, NMFS is providing this additional opportunity for public review and comment on this EFP application.                

## Background

                    Regulations implemented by the IPHC allow Pacific halibut to be commercially harvested by the directed North Pacific longline fishery only. Halibut caught incidentally in other fisheries, such as non-pelagic trawl fisheries, must be sampled by observers and returned to the ocean as soon as possible. Regulations implementing the FMP establish annual halibut bycatch mortality limits, also referred to as halibut prohibited species catch (PSC) limit, for the groundfish fisheries. Fisheries close when they reach their seasonal or annual halibut PSC limit even if the allowable catch of groundfish is not yet caught. In the case of the Bering Sea flatfish fishery,                           ( print page 18551)                        seasons have been closed before the fishery quotas have been reached to prevent the fishery from reaching the halibut PSC limit. Reducing halibut mortality and assuring that each halibut returned to the sea has the highest possible chance of survival are therefore high priorities for the IPHC's, the Council's, and NMFS's management goals for both halibut and groundfish.                

Before halibut are returned to the sea, the catch of halibut as well as other groundfish must first be estimated by at-sea observers. A number of regulations assure that observer estimates of halibut and groundfish catch are credible, accurate, and without bias. For example, NMFS requires that all catch be made available for sampling by an observer; prohibits tampering with observer samples; prohibits removal of halibut from a codend, bin, or conveyance system prior to being observed and counted by an at-sea observer; and prohibits fish (including halibut) from remaining on deck unless an observer is present. 

With the implementation of Amendment 80 to the FMP on September 14, 2007 (72 FR 52668), allocation of halibut PSC amounts was modified for vessels in the Amendment 80 sector, but halibut mortality continued to limit fishing in some fisheries. The Amendment 80 sector received an initial allocation of 2,525 metric tons (mt) of halibut PSC in 2008, but that allocation will decrease by 50 mt per year until it reaches 2,325 mt in 2012 and subsequent years. This amount is further allocated between the BUC and the Amendment 80 limited access fishery. In certain years, the amount of halibut PSC allocated to the Amendment 80 sector is less than the sector's historic catch; therefore, finding ways to continue to reduce halibut mortality is important for this sector.

The EFP applicant proposes to assess various fishing practices and their effect on halibut survival. It would allow researchers onboard the three catcher processor vessels to sort halibut removed from a codend on the deck of the vessel and release those fish back to the water after determining the physical condition of the halibut using standard IPHC viability methods for predicting mortality of individual fish. 

Fishing under the EFP would occur in two phases during 2009. In May and June, Phase I fishing would allow sorting of halibut on deck to determine practices for reducing halibut mortality. Later in the year, Phase II would apply the halibut mortality saved in Phase I to allow additional EFP catch of groundfish and halibut within the BUC's allocation.

This proposed action would exempt the participating vessels from the following: 

1. The prohibition on biasing the sampling procedure employed by an observer through sorting of catch before sampling at § 679.7(g)(2); 

2. A requirement to weigh all catch by an Amendment 80 vessel on a NMFS-approved scale at § 679.27(j)(5)(ii); 

3. A requirement for all catch to be made available for sampling at § 679.93(c)(1); and 

4. The requirement for halibut to not be allowed on deck without an observer present at § 679.93(c)(5). 

The BUC would not be allowed to exceed the 2009 Amendment 80 cooperative apportionment of halibut mortality of (1,793 mt). In the event that the amount of halibut mortality savings estimated under this EFP shows less mortality than the amount estimated using standard 2009 halibut discard mortality rates established for the Bering Sea trawl fisheries (February 17, 2009, 74 FR 7333), BUC may be allowed to continue fishing for groundfish species later in the year, with some limitations. The BUC would be required to submit a report to NMFS and the IPHC of the estimated halibut mortality saved during the Phase I. After review and approval by NMFS, the BUC may be allowed to do subsequent EFP fishing later in the year as Phase II fishing under the EFP. The BUC would be limited to no more than the BUC's Amendment 80 groundfish allocation. The additional amount of halibut caught would not exceed the amount of the halibut mortality savings under the EFP, or BUC's 2009 allocation of halibut PSC. 

This EFP would apply for the period of time required to complete the experiment in Phase I and potentially in subsequent fishing in Phase II, during 2009, in areas of the BSAI open to directed fishing by the BUC. The EFP activities would be of limited scope and duration and would not be expected to change the nature or duration of the groundfish fishery, fishing practices or gear used, or the amount or species of fish caught by the BUC.

                    The activities that would be conducted under this EFP are not expected to have a significant impact on the human environment as detailed in the categorical exclusion issued for this action (see                     **ADDRESSES**                    ).                

In accordance with § 679.6, NMFS has determined that the proposal warrants further consideration and has forwarded the application to the Council to initiate consultation. The Council considered the EFP application during its April 2009 meeting. 

## Public Comments

                    Public comments are being solicited on the application through the end of the comment period stated in this notice. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date. Copies of the application and categorical exclusion are available for review from NMFS (see                     **ADDRESSES**                    ).                

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

Dated: April 17, 2009.

Kristen C. Koch,

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

[FR Doc. E9-9343 Filed 4-22-09; 8:45 am]

BILLING CODE 3510-22-S