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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 050816224-5224-01; I.D. 081005A]
          - RIN 0648-AT69

# AGENCY:

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

# ACTION:

Temporary rule; request for comments.

# SUMMARY:

This emergency rule, implemented under the authority of the Pacific Coast groundfish fishery management plan (FMP), establishes a salmon conservation zone for the primary Pacific whiting (whiting) fishery, shoreward of a boundary line approximating the 100-fm (183-m) depth contour.  Under this rule, fishing for Pacific whiting within the salmon conservation zone is prohibited.

# DATES:

Effective August 26, 2005, until February 27, 2006.  Comments must be received no later than 5 p.m., local time on September 26, 2005.

# ADDRESSES:

You may submit comments, identified by I.D. 081105A by any of the following methods:
      - E-mail: 2005hakesalmon.nwr@noaa.gov :  Include 081105A in the subject line of the message.                    
      - Federal eRulemaking Portal: www.regulations.gov .  Follow the instructions for submitting comments.                    
      - Fax: 206-526-6736, Attn: Becky Renko
      - Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky Renko.

                        Copies of the Final Environmental Impact Statement (FEIS) for the harvest specifications and management measures for the 2005-2006 groundfish fisheries are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone:   503-820-2280.  Copies of the Record of Decision, final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide for the groundfish harvest specifications for 2005-2006 are available from D.                               ( print page 51683)                            Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115-0070.                    

# FOR FURTHER INFORMATION CONTACT:

                        Becky Renko (Northwest Region, NMFS), phone:  206-526-6110; fax:  206-526-6736; and; email:                         *becky.renko@noaa.gov*, or Yvonne deReynier, phone:  206-526-6129; fax:  206-526-6736; and; e-mail:                         *yvonne.dereynier@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This emergency rule is accessible via the Internet at the Office of the                     **Federal Register**                    's website at                     *www.gpoaccess.gov/​fr/​index.html*.  Background information and documents are available at the NMFS Northwest Region website at                     *www.nwr.noaa.gov/​1sustfsh/​gdfsh01.htm*.                

## Pacific Whiting Fishery

                    Pacific whiting (                    *Merluccius productus*) is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span when compared to other groundfish species.  Whiting has the largest (by volume) annual allowable harvest levels of the 90+ groundfish species managed under the FMP.  The coastwide whiting stock is managed by both the United States and Canada, and mature whiting are commonly available to vessels operating in U.S. waters from April through October.  Background on the stock assessment for and the establishment of the 2005 acceptable biological catch (ABC) and optimum yield (OY) for Pacific whiting is provided in the final rule for the 2005 whiting harvest specifications, published May 3, 2005 (70 FR 22808).                

Whiting is taken by vessels using mid-water trawl gear in four commercial sectors:  tribal trawl vessels (Makah Tribe); non-tribal trawl catcher boats delivering whiting to shore-based processing plants; non-tribal trawl catcher boats delivering whiting to motherships at sea; and, non-tribal catcher-processors.  For 2005, using the sliding scale allocation method described in the final rule on the 2005 whiting harvest specifications, the tribal whiting allocation is 35,000 mt.  The 2005 non-tribal commercial OY for whiting is 232,069 mt.  This is calculated by deducting the 35,000-mt tribal allocation and 2,000 mt for research catch and bycatch in non-groundfish fisheries from the 269,069 mt total catch OY.  Regulations at 50 CFR 660.323(a)(24) divide the commercial OY into separate allocations for the non-tribal catcher/processor, mothership, and shore-based sectors of the whiting fishery.  Each sector receives a portion of the commercial OY, with the catcher/processors getting 34 percent (78,903 mt in 2005), motherships getting 24 percent (55,696 mt in 2005), and the shore-based sector getting 42 percent (97,469 mt in 2005).

The best available information as of August 11, 2005, indicates that the following amounts of whiting have been taken by the four whiting sectors participating in the 2005 primary whiting season:  tribal, 28,325 mt (80.9 percent of allocation); non-tribal shore-based, 70,176 mt (71.9 percent of allocation); non-tribal mothership, 37,659 mt (67.6 percent of allocation); non-tribal catcher/processor, 48,006 mt (60.8 percent of allocation).

## Salmon Bycatch in the 2005 Primary Whiting Season

Primary seasons for the non-tribal whiting fishery are provided at 50 CFR 660.373(b).  In 2005, the primary seasons for the non-tribal whiting fishery started on the following dates:   Catcher/processor sector   May 15; Mothership sector May 15; Shore-based sector June 15; north of 42° N. lat., April 1 between 42° and 40°30′ N. lat., and April 15 south of 40°30′ N. lat.  The tribal fishery, conducted by Makah Tribe members, began on May 1, 2005.  The Makah Tribe's U&A fishing area is located within the U.S. West Coast exclusive economic zone (EEZ) north of 48°02′15″ N. lat. and east of 125°44′00″ W. long.

NMFS tracks catch levels of target and non-target species in the at-sea catcher-processor and mothership sectors inseason.  The agency also receives inseason catch and bycatch data from the states of Oregon, California, and Washington on the shore-based sector and from the Makah Tribe on its whiting fishery.  NMFS is responsible for closing the non-tribal fishing sectors when it estimates the whiting allocations for these sectors will be met.

Chinook bycatch in the non-tribal at-sea and tribal whiting fisheries is closely monitored.  As in previous years, most shore-based whiting vessels were issued exempted fishing permits (EFPs) for landing unsorted whiting during the primary season.  EFPs allow vessels delivering to shore-based harvesters to delay sorting the catch until offload.  Delaying sorting until offload allows state biologists and industry-hired monitors to collect information on the incidental catch of prohibited species at the processing facilities.  Since 2004, all EFP participants have been required to carry video cameras for monitoring catch retention at sea.  To provide total catch data monitoring in the at-sea processing sectors of the fishery, all at-sea processing vessels carry two NMFS-trained observers while participating in the fishery.  Total catch data from the whiting fisheries is available more swiftly for use in management decisions than data from many other West Coast groundfish fisheries.

## ESA Consultation on the Whiting Fishery

The incidental take statement prepared pursuant to the Endangered Species Act requires reinitiation of consultation if the fishery exceeds an 11,000-Chinook salmon annual bycatch amount.  In early July of the 2005 fisheries, NMFS first saw data on higher than expected salmon bycatch rates.  By the end of July, primary whiting season data indicated that the fishery would likely exceed a bycatch of 11,000 salmon in 2005.  The best available information as of August 11, 2005, indicates that the following numbers of Chinook salmon have been taken as bycatch in the whiting fishery by the four whiting sectors participating in the 2005 primary whiting season:  tribal, 3,911 fish; non-tribal shore-based, 3,622 fish; non-tribal mothership, 2,143 fish; non-tribal catcher/processor, 1,607 fish.  Therefore, NMFS has reinitiated consultation on the effect of the primary whiting fishery on salmon ESUs listed as endangered or threatened, and is taking this emergency action to reduce the effect of the whiting fishery on salmon for the remainder of the 2005 primary season.

                    NMFS reviewed 2001-2004 salmon bycatch data from the primary whiting season to determine if there were a depth at which whiting fishery participants could catch whiting, yet have lower salmon bycatch rates.  Fishery data from those years indicate that salmon bycatch rates in the August-November period decline notably from the May-July bycatch rates and decrease for vessels fishing offshore of the 100- fm (183- m) depth contour.  Therefore, NMFS is implementing an emergency rule that creates a salmon conservation zone for West Coast EEZ waters shoreward of a boundary line approximating the 100-fm (183-m) depth contour, wherein fishing for whiting is prohibited.  Federal regulations at 50 CFR 660.393(a) provide latitude/longitude coordinates that define a boundary line at the 100-fm (183-m) depth contour; this boundary line is used, as necessary, to define the boundaries of trawl or non-trawl Rockfish Conservation Areas for the non-whiting groundfish fisheries.                           ( print page 51684)                         This same boundary line is used as the offshore boundary of the Ocean Salmon Conservation Zone established by this rule.                

## Regulatory Changes put into Effect Through This Emergency Action

Federal regulations at 50 CFR 660.373(c) establish two closed areas for the Pacific whiting fishery that are intended to constrain the effects of the fishery on Klamath and Columbia River salmon.  Additional salmon protection is provided at 50 CFR 660.373(d), which sets whiting trip limits for vessels operating shoreward of the 100-fm (183-m) depth contour in the Eureka management area (from 43°00′ to 40°30′ N. lat.)  This emergency rule temporarily establishes a third salmon conservation zone for all West Coast waters shoreward of a boundary line approximating the 100-fm (183-m) depth contour.  The latitude/longitude coordinates defining the boundary line that approximates the 100-fm (183-m) depth contour are provided at § 660.393(a).

## Classification

This emergency rule establishes a coastwide salmon conservation zone for the Pacific whiting fishery.  It is issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act at section 305(c)(1) and is consistent with the regulations implementing the FMP at 50 CFR part 660.

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive the requirement to provide prior notice and comment on this action pursuant to 5 U.S.C. 553(b)(B).,  because Pproviding prior notice and opportunity for public comment would be impracticable and contrary to the public interest for the following reasons.  The information on which this action is based was not available to NMFS until July 2005 and the closed area implemented by this rule needs to be in place as soon as possible in August 2005 in order to provide additional protection for ESA-listed endangered and threatened salmon during the remainder of the 2005 primary primary whiting season, as well as during the ESA consultation that is currently ongoing for these salmon.  If the agency were to conductundergo a proposed and final rulemaking for this action, the rule would not likely be finalized until after the whiting fisheries had achieved their 2005 whiting quotas.   The bycatch of ESA-listed salmon could continue unabated during this time.  Providing prior notice and comment would be impracticable because affording prior notice and opportunity for public comment would impede the agency's mandated duty to manage fisheries to protect endangered and threatened salmon.

For the reasons described above, pursuant to 5 U.S.C. 553(d)(3), the AA also finds good cause to waive the 30-day delay in effectiveness, so that this rule may become effective as soon as possible to provide immediate protection for ESA-listed endangered and threatened salmon.

This emergency rule has been determined to be not significant for purposes of Executive Order 12866.

                    This action is within the scope of the October 2004 Environmental Impact Statement (EIS) prepared by the Council for the 2005-2006 Pacific Coast groundfish ABCs, OYS, and management measures.  Copies of this EIS are available from the Pacific Council (See                     **ADDRESSES**                    .)                

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The proposed and final rules to implement the 2005-2006 groundfish harvest specifications and management measures were developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP, per Executive Order 13175.  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.  The tribal representative on the Council made a motion to adopt the 2005-2006 tribal management measures, which was passed by the Council.  Of the four groundfish treaty tribes, only the Makah Tribe conducts a whiting fishery.  NMFS consulted with the Makah Tribe on salmon bycatch in their whiting fishery and on implementing a fishery closure shoreward of a boundary line approximating the 100-fm (183-m) depth contour.  The Makah Tribe is implementing tribal fishery regulations to close the tribal whiting fishery shoreward of 100- fm (183- m) and is beginning testing a salmon bycatch excluder device that has been successfully used to exclude salmon bycatch in Alaska pollock fisheries.

# List of Subjects in 50 CFR Part 660

      - Administrative practice and procedure
      - American Samoa
      - Fisheries
      - Fishing
      - Guam
      - Hawaiian Natives
      - Indians
      - Northern Mariana Islands
      - Reporting and recordkeeping requirements

Dated:  August 26, 2005.

James W. Balsiger,

Acting Deputy, Assistant Administrator for Regulatory Programs, 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 AND IN THE WESTERN PACIFIC

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

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

2.  In § 660.373, paragraph (c)(3) is added to read as follows: 

§ 660.373

* * * * *

(c) * * *

                            (3)                             *Ocean Salmon Conservation Zone.*                             All waters shoreward of a boundary line approximating the 100- fm (183- m) depth contour.  Latitude and longitude coordinates defining the boundary line approximating the 100-fm (183-m) depth contour are provided at § 660.393(a).  This closure supplements the closures provided in this section at paragraphs (c)(1) and (c)(2).                        

* * * * *

[FR Doc. 05-17342 Filed 8-26-05; 2:26 pm]

BILLING CODE 3510-22-S