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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 0809121213-9221-02]
          - RIN 0648-AX84

# 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 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. The rule also implements changes to the incidental retention allowance for halibut in the primary sablefish fishery under the authority of the Northern Pacific Halibut Act. 

# DATES:

 Effective 0001 hours (local time) May 1, 2009. Comments on this final rule must be received no later than 5 p.m., local time on May 27, 2009.

# ADDRESSES:

 You may submit comments, identified by RIN 0648-AX84 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 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.

# 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 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). These specifications and management measures are codified in the CFR (50 CFR part 660, subpart G).

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 April 4-9, 2009, meeting in Millbrae, California. The Council recommended adjustments to current groundfish management measures to respond to updated fishery information and other inseason management needs. This action is not expected to result in greater impacts to overfished species than originally projected through the end of 2009. 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.

## Limited Entry Fixed Gear Fishery Management Measures

### Sablefish Daily Trip Limit Fishery

                    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. In 2006, 106 mt of the 356 mt allocation was harvested. In 2007 and 2008, 116 mt and 150 mt, respectively, of the 2007 and 2008 allocations of 276 mt were taken. Over the 2006 to 2008                           ( print page 19012)                        time period, a maximum of 54 percent of the limited entry fixed gear sablefish allocation for the area North of 36° N. lat. was taken. To provide additional harvest opportunities for this healthy stock, the Council considered increases to trip limits for sablefish in this fishery and the potential impacts on overall catch levels and overfished species. Trip limits in this fishery have been fairly stable over time; therefore some uncertainty surrounds how changes in trip limits will affect effort and landings. In response to this uncertainty, the Council considered a precautionary adjustment that would moderately raise the daily, weekly and bi-monthly trip limits. Also, the Council considered that the overall number of participants is restricted to vessels registered to a limited entry permit with the necessary gear and species endorsements. The effects of a small increase in trip limits in this fishery can be monitored, and any additional adjustments can be made to approach, but not exceed, the sablefish allocation for the limited entry fixed gear sablefish DTL fishery. This increase in 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.                

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 from “300 lb (136 kg) per day, or 1 landing per week of up to 1,000 lb (454 kg), not to exceed 5,000 lb (2,268 kg) per 2 months” to “500 lb (227 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 5,500 lb (2,495 kg) per 2 months” beginning in period 3, on May 1.

### Incidental Halibut Retention

The International Pacific Halibut Commission (IPHC) establishes total allowable catch (TAC) amounts for Pacific halibut each year in January. Under the authority of the Northern Pacific Halibut Act, and implementing regulations at 50 CFR 300.63, a catch sharing plan, developed by the Pacific Council and implemented by the Secretary, allocates portions of the annual TAC among fisheries off Washington, Oregon, and California. The catch sharing plan for Pacific halibut fisheries in Area 2A (waters off the U.S. West coast) allows an incidental total catch limit for halibut for the 2009 limited entry fixed gear sablefish primary season (i.e. tier limit fishery) of 11,895 lb (5.4 mt). This total catch limit of 11,895 lb in 2009 is much lower than what has been available to the sablefish primary season fishery in recent years, which has been a total catch limit of 70,000 lb. The allocation is lower in 2009 due to an approximately 22 percent decrease in the Pacific halibut TAC when compared to the 2008 TAC. The current halibut catch ratio of 100 lb (45 kg) halibut per 1,000 lb (454 kg) of sablefish was implemented on May 4, 2005 (70 FR 23040) and has remained relatively unchanged since that time, because the incidental halibut catch limit has remained fairly constant since that time. The retention limits for halibut were not revised as part of the 2009-2010 harvest specifications and management measures because the Total Allowable Catch of halibut for 2009 was not determined until the IPHC meeting in January, 2009. Due to the decrease in the Pacific halibut TAC, and the resulting decrease in the amount of Pacific halibut available to the primary sablefish fishery as incidental take, the Council considered options to revise the catch ratio established in the groundfish regulations at 50 CFR 660.372 at their first opportunity, the March 2009 meeting. These options were developed to reduce incidental impacts to Pacific halibut in the sablefish fishery, and stay below the lower 2009 Pacific halibut allocation. After the opportunity for public review and comment, the Council, at their April meeting, made their final recommendation for adjusting the incidental retention limits for Pacific halibut in the sablefish primary season fishery in order to reduce incidental take and keep mortality of halibut below the lower 2009 catch limit of 11,895 lb.

In order to reduce incidental halibut catch in this fishery, the Council recommended modifying the incidental halibut retention regulations at 50 CFR 660.372 (b)(3)(iv) from “100 lb (45 kg) dressed weight, head-on of halibut per 1,000 lb (454 kg) dressed weight of sablefish, plus up to two additional halibut per fishing trip in excess of this ratio” to “100 lb (45 kg) dressed weight, head-on of halibut per fishing trip.” 

In addition, at the recommendation of their enforcement consultants, and in order to improve the enforceability of the regulations, the Council recommended modifying the regulation to cover both possession and landing of halibut, not just the landing of halibut.

## Open Access Fishery Management Measures

During the development of the 2009-2010 harvest specifications and management measures, the sablefish OY increased from 2008 to 2009, and consequently the allocation to the open access sablefish fishery North of 36° N. lat. also increased. No increases were made to trip limits in this fishery during the 2009-2010 harvest specifications and management measures as a precautionary approach due to uncertainty in how the poor 2008 salmon season would affect effort and catches of sablefish in this fishery through the end of 2008. The most recent catch information from 2008 fisheries indicates that 488 mt of the 2008 sablefish allocation North of 36° N. lat., 492 mt, was harvested. The cumulative limits in this fishery that are currently in place are the same as those that resulted in this 488 mt of harvest in 2008. However, the 2009 allocation was raised to 538 mt during the 2009-2010 harvest specifications and management measures process. As a result of the 2009 salmon regulations recommended by the Council at their April meeting, the 2009 salmon fishery is likely to be similar in scope and magnitude to the 2008 fishery, which should result in a similar amount of effort shift into the sablefish fishery; therefore, continuing the trip limits that were in place in 2008 could potentially leave 50 mt of the increased sablefish allocation unharvested in 2009. To provide additional harvest opportunities for this healthy stock, the Council considered increases to trip limits for sablefish in this fishery and the potential impacts on overall sablefish and overfished species catch levels. Therefore the Council considered modest increases to the bi-monthly limits for sablefish in the open access fishery in order to approach, but not exceed, the 2009 sablefish OY. Effort shifts as a result of changes to the bi-monthly limits are generally smaller in magnitude than effort shifts observed in response to changes in daily or weekly trip limits in the open access fishery. This modest increase in trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species is calculated assuming that the entire sablefish allocation is harvested.

Therefore, the Council recommended and NMFS is implementing a monthly cumulative limit increase for the open access fishery North of 36 N. lat. that changes sablefish limits from “300 lb (136 kg) per day, or 1 landing per week of up to 800 lb (363 kg), not to exceed 2,200 lb (998 kg) per 2 months” to “300 lb (136 kg) per day, or 1 landing per week of up to 800 lb (363 kg), not to exceed 2,400 lb (1,089 kg) per 2 months” beginning in period 3, on May 1.
      ( print page 19013)    

## Classification

These actions are taken under the authority of 50 CFR 660.370(c) and 50 CFR 300.63(b)(3) and are exempt from review under Executive Order 12866.

These increases in sablefish limits 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. The adjustment to the halibut incidental catch limit is taken under the authority of the Northern Pacific Halibut Act and implementing regulations, and is consistent with the approved catch sharing plan. 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 May 1, 2009.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its April 4-9, 2009, meeting in Millbrae, California. The Council recommended that these changes be implemented on or as close as possible to May 1, 2009. 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. These adjustments to management measures must be implemented in a timely manner, by May 1, 2009, to: allow fishermen an opportunity to harvest higher limits in 2009 for sablefish, and reduce incidental catch of halibut to keep impacts below the 2009 halibut Area 2A allocation.

Increases to the sablefish cumulative limits in the limited entry fixed gear fishery and the open access fishery relieve a restriction by allowing 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 by May 1, 2009, 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 wait to implement these changes until after public notice and comment, because making this regulatory change by May 1 allows additional harvest in fisheries that are important to coastal communities.

Changes to the incidental halibut retention regulations to decrease the retention limit for the limited entry sablefish primary fishery are necessary to reduce halibut impacts in area 2A, keeping total mortality of halibut below the 2009 area 2A allocation. These changes must be implemented in a timely manner by May 1, 2009, to prevent impacts to halibut to exceed the 2009 allocation, and to prevent early closure of the incidental halibut fishery. It would be contrary to the public interest to wait to implement these changes until after public notice and comment, because a delay in reducing retention limits could cause halibut to be unavailable for harvest for as long as possible throughout the primary sablefish season, which runs through October 31.

Allowing the current management measures to remain in place could jeopardize managers' ability to provide for year-round harvest opportunities for healthy stocks. 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. Such delay would impair achievement of the Pacific Coast Groundfish FMP objectives of providing for year-round harvest opportunities, extending fishing opportunities as long as practicable during the fishing year, or staying within OYs or allocations for Pacific halibut.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian Fisheries

Kristen C. Koch,

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. In § 660.372, paragraph (b)(3)(iv) is revised to read as follows: 

§ 660.372

(b) * * *

(3) * * *

                            (iv)                             *Incidental halibut retention north of Pt. Chehalis, WA (46° 53.30' N. lat.).*                             From May 1 through October 31, vessels authorized to participate in the primary sablefish fishery, licensed by the International Pacific Halibut Commission for commercial fishing in Area 2A (waters off Washington, Oregon, California), and fishing with longline gear north of Pt. Chehalis, WA (46° 53.30' N. lat.) may possess and land up to the following cumulative limits: 100 lb (45 kg) dressed weight, head-on of halibut per fishing trip. “Dressed” halibut in this area means halibut landed eviscerated with their heads on. Halibut taken and retained in the primary sablefish fishery north of Pt. Chehalis may only be landed north of Pt. Chehalis and may not be possessed or landed south of Pt. Chehalis.                        

3. Tables 4 (North), 4 (South), 5 (North), and 5 (South) to part 660, subpart G are revised to read as follows: 
      ( print page 19014)          ( print page 19015)          ( print page 19016)          ( print page 19017)          ( print page 19018)          ( print page 19019)          ( print page 19020)    

BILLING CODE 3510-22-S

[FR Doc. E9-9564 Filed 4-24-09; 8:45 am]

BILLING CODE 3510-22-C