58066 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

1 John Deere Insurance Co. v. Nueva, 229 F.3d 

853 (9th Cir. 2000); Lynch v. Yob, 95 Ohio St. 3d 

441, 768 NE. 2d 1158 (2002); Pierre v. Providence 

Wash. Ins. Co., 286 A.D.2d 139, 730 N.Y.S.2d 550 

(2001); and Madere v. National Union Fire Ins. Co. 

of Pittsburgh, 2000 U.S. Dist. LEXIS 15994 (E.D. La. 

2000). 

of Insurance for Public Liability, to 

incorporate several changes, most of 

which were suggested to clarify the 

meaning of Form MCS–90. The 

Trucking Industry Defense Association 

(TIDA) filed a brief in support of the 

petition. A copy of the petition, 

amendments to the petition and the 

TIDA brief are in the docket identified 

in the heading of this document. The 

petitioners contended changes were 

necessary in light of Federal and State 

court decisions 1 that they claimed 

misconstrued Form MCS–90 to require 

insurance companies to pay damages for 

negligent operation of a vehicle owned 

by the insured motor carrier but not 

covered by its insurance policy, even 

when no judgment had been obtained 

against the insured motor carrier. The 

Petitioners’ primary concern was to 

have the agency clarify that the word 

‘‘insured’’ in the Form MCS–90 means 

‘‘named insured.’’

FMCSA has denied the petition for 

rulemaking. However, the agency stated 

petitioners’ concerns could be 

adequately addressed without 

rulemaking through formal agency 

guidance to be published in the Federal 

Register. A copy of the letter denying 

the petition is in the docket identified 

in the heading of this document. 

FMCSA Authorities Over Motor Carrier 

Financial Responsibility Requirements 

Section 30 of the Motor Carrier Act of 

1980 (Pub. L. 96–296, July 1, 1980, 94 

Stat. 793, at 820), codified at 49 U.S.C. 

31139, established minimum levels of 

financial responsibility for for-hire 

motor carriers of property involved in 

interstate or foreign transportation and 

for the transportation of hazardous 

materials in intrastate and interstate 

commerce. 

Section 18 of the Bus Regulatory 

Reform Act of 1982 (Pub. L. 97–261, 

September 20, 1982, 96 Stat. 1102), 

codified at 49 U.S.C. 31138, established 

minimum levels of financial 

responsibility covering public liability 

and property damage for the 

transportation of passengers by for-hire 

motor carriers in interstate or foreign 

commerce. 

The financial responsibility 

provisions of the Motor Carrier Act of 

1980 and the Bus Regulatory Reform Act 

of 1982 were intended to create 

incentives for the motor carrier industry 

to focus on the safety aspects of 

highway transportation and to assure 

the general public that a motor carrier 

maintains an adequate level of financial 

responsibility sufficient to satisfy claims 

covering public liability, property 

damage liability and, in the case of 

transporters of hazardous materials, 

environmental restoration liability. 

The Administrator of FMCSA has 

been delegated authority, under 49 CFR 

1.73(f), to carry out the functions vested 

in the Secretary of Transportation 

relating to financial responsibility 

requirements for motor carriers, brokers 

and freight forwarders. Such functions 

include issuing regulations 

implementing 49 U.S.C. 31138 and 

31139 and providing guidance regarding 

statutory or regulatory requirements. 

This document provides regulatory 

guidance to the petitioners and the 

public with respect to the proper 

interpretation of Form MCS–90. FMCSA 

is including Forms MCS–90B, MCS–82, 

and MCS–82B in this regulatory 

guidance as well, because the same 

issue may arise with respect to these 

forms. Forms MCS–90, MCS–90B, MCS–

82, and MCS–82B are not intended, and 

do not purport, to require insurance 

companies or sureties to satisfy a 

judgment against any party other than 

the motor carrier named in the 

endorsement or its fiduciary. 

Members of the motor carrier industry 

and other interested parties may also 

access the guidance in this document 

through the FMCSA’s Internet site at 

http://www.fmcsa.dot.gov. 

Specific questions addressing any of 

the interpretive material published in 

this document should be directed to the 

contact person listed earlier under FOR

FURTHER INFORMATION CONTACT, or the 

FMCSA Division Office in each State. 

Regulatory Guidance 

PART 387—MINIMUM LEVELS OF 

FINANCIAL RESPONSIBILITY FOR 

MOTOR CARRIERS 

Sections Interpreted 

Section 387.15 Forms 

Question: Does the term ‘‘insured,’’ as 

used on Form MCS–90, Endorsement for 

Motor Carrier Policies of Insurance for 

Public Liability, or ‘‘Principal’’, as used 

on Form MCS–82, Motor Carrier 

Liability Surety Bond, mean the motor 

carrier named in the endorsement or 

surety bond? 

Guidance: Yes. Under 49 CFR 387.5, 

‘‘insured and principal’’ is defined as 

‘‘the motor carrier named in the policy 

of insurance, surety bond, endorsement, 

or notice of cancellation, and also the 

fiduciary of such motor carrier.’’ Form 

MCS–90 and Form MCS–82 are not 

intended, and do not purport, to require 

a motor carrier’s insurer or surety to 

satisfy a judgment against any party 

other than the carrier named in the 

endorsement or surety bond or its 

fiduciary. 

Section 387.39 Forms 

Question: Does the term ‘‘insured,’’ as 

used on Form MCS–90B, Endorsement 

for Motor Carrier Policies of Insurance 

for Public Liability, or ‘‘Principal’’, as 

used on Form MCS–82B, Motor Carrier 

Public Liability Surety Bond, mean the 

motor carrier named in the endorsement 

or surety bond? 

Guidance: Yes. Under 49 CFR 387.29, 

‘‘insured and principal’’ is defined as 

‘‘the motor carrier named in the policy 

of insurance, surety bond, endorsement, 

or notice of cancellation, and also the 

fiduciary of such motor carrier.’’ Form 

MCS–90B and Form MCS–82B are not 

intended, and do not purport, to require 

a motor carrier’s insurer or surety to 

satisfy a judgment against any party 

other than the carrier named in the 

endorsement or surety bond or its 

fiduciary. 

Issued on: September 28, 2005. 

Annette M. Sandberg, 

Administrator. 

[FR Doc. 05–19946 Filed 10–4–05; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 040830250–5062–03; I.D. 

093005A] 

Fisheries Off West Coast States and in 

the Western Pacific; Pacific Coast 

Groundfish Fishery; Specifications and 

Management Measures; Inseason 

Adjustments 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Inseason adjustments to 

management measures; request for 

comments. 

SUMMARY: NMFS announces changes to 

management measures in the 

commercial and recreational Pacific 

Coast groundfish fisheries. These 

actions, which are authorized by the 

Pacific Coast Groundfish Fishery 

Management Plan (FMP), will allow 

fisheries to access more abundant 

groundfish stocks while protecting 

overfished and depleted stocks. 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58067 

DATES: Effective 0001 hours (local time) 

October 1, 2005. Comments on this rule 

will be accepted through November 4, 

2005. 

ADDRESSES: You may submit comments, 

identified by 093005A by any of the 

following methods: 

• E-mail: 

GroundfishInseason4.nwr@noaa.gov. 

Include I.D. number 093005A in the 

subject line of the message. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 206–526–4646, Attn: Jamie 

Goen. 

• Mail: D. Robert Lohn, 

Administrator, Northwest Region, 

NMFS, Attn: Jamie Goen, 7600 Sand 

Point Way NE., Seattle, WA 98115–

0070. 

FOR FURTHER INFORMATION CONTACT: 

Jamie Goen (Northwest Region, NMFS), 

phone: 206–526–6140; fax: 206–526–

6736; and e-mail: jamie.goen@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This Federal Register document is 

available on the Government Printing 

Office’s Web site at: http:// 

www.gpoaccess.gov/fr/index.html. 

Background information and 

documents are available at the NMFS 

Northwest Region Web site at: http:// 

www.nwr.noaa.gov/1sustfsh/ 

gdfsh01.htm and at the Pacific Fishery 

Management Council’s Web site 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 80 species of groundfish 

off the coasts of Washington, Oregon, 

and California. Groundfish 

specifications and management 

measures are developed by the Pacific 

Fishery Management Council (Pacific 

Council), and are implemented by 

NMFS. The specifications and 

management measures for 2005–2006 

were codified in the CFR (50 CFR part 

660, subpart G). They were published in 

the Federal Register as a proposed rule 

on September 21, 2004 (69 FR 56550), 

and as a final rule on December 23, 2004 

(69 FR 77012). The final rule was 

subsequently amended on March 18, 

2005 (70 FR 13118); March 30, 2005 (70 

FR 16145); April 19, 2005 (70 FR 

20304); May 3, 2005 (70 FR 22808); May 

4, 2005 (70 FR 23040); May 5, 2005 (70 

FR 23804); May 16, 2005 (70 FR 25789); 

May 19, 2005 (70 FR 28852); July 5, 

2005 (70 FR 38596); and August 31, 

2005 (70 FR 51682). 

The following changes to current 

groundfish management measures were 

recommended by the Pacific Council, in 

consultation with Pacific Coast Treaty 

Indian Tribes and the States of 

Washington, Oregon, and California, at 

its September 19–23, 2005, meeting in 

Portland, OR. The changes 

recommended by the Pacific Council 

include: (1) Changes to the trawl 

Rockfish Conservation Areas (RCAs) for 

limited entry trawl fisheries, (2) changes 

to the limited entry trawl trip limits for 

‘‘other flatfish,’’ petrale sole, English 

sole, arrowtooth flounder, minor slope 

rockfish, darkblotched rockfish, 

splitnose rockfish, and to the limits for 

Dover sole, longspine thornyhead, 

shortspine thornyhead and sablefish 

(DTS), (3) an increase to the bycatch 

limit for widow rockfish in the whiting 

fishery, (4) changes to the limited entry 

fixed gear and open access daily trip 

limits for sablefish, (5) changes to 

Washington’s recreational groundfish 

fishery RCA, and (6) changes to 

Oregon’s recreational groundfish fishery 

bag limits. Pacific Coast groundfish 

landings will be monitored throughout 

the year, and further adjustments to 

other trip limits or management 

measures will be made as necessary to 

allow achievement of, or to avoid 

exceeding, optimum yields (OYs). 

Limited Entry Trawl RCA Changes 

A review of Pacific Fisheries 

Information Network (PacFIN) Quota 

Species Monitoring (QSM) data shows 

that the catch of petrale sole is quickly 

approaching its optimum yield (OY), 

which is set equal to the acceptable 

biological catch (ABC) in 2005. As of 

September 16, 2005, QSM data indicate 

that the total non-tribal petrale sole 

catch is 2,552 mt out of a combined 

tribal/non-tribal ABC/OY of 2,762 mt. 

Because petrale sole is already 

approaching its ABC/OY in September, 

a winter petrale sole fishery in 

November and December (Period 6) 

cannot be accommodated. Additionally, 

the catch of canary rockfish in the 

limited entry bottom trawl fishery has 

exceeded the 8.0 mt of canary rockfish 

projected for the year for this fishery in 

the bycatch scorecard by 1.5 mt. 

NMFS has been monitoring the 

limited entry trawl fishery throughout 

the year, and sent out a public notice on 

July 27, 2005 (NMFS–SEA–05–05) to 

notify the public that petrale sole and 

canary rockfish take in the limited entry 

bottom trawl fleet was higher than had 

been expected. NMFS also alerted the 

public that the agency might have to 

take action to slow the catch of these 

species to keep total catch within their 

ABC and/or harvest guidelines and 

requested that the harvesting and 

processing communities take voluntary 

action to slow their catch rates. While 

the harvesting and processing 

communities have slowed catch 

somewhat, voluntary action alone is not 

enough, in this case, to keep total catch 

of petrale sole and canary rockfish 

within harvest limits for 2005. 

In order to further reduce the take of 

canary rockfish and petrale sole in the 

trawl fishery, the Pacific Council 

recommended modifying the trawl RCA 

and reducing trip limits for DTS and 

flatfish species (see following section on 

Limited Entry Trawl Trip Limit 

Adjustments). For the trawl RCA, the 

Pacific Council recommended 

increasing the size of the area closed to 

fishing with trawl gear by modifying the 

seaward boundary of the trawl RCA to 

be at a boundary line approximating the 

250-fm (457-m) depth contour 

coastwide. In order to further reduce the 

take of petrale sole in the trawl fishery, 

the Pacific Council recommended 

modifying the shoreward boundary of 

the trawl RCAs to be at the shoreline 

north of 36° N. lat. and be at a boundary 

line approximating the 50-fm (91-m) 

depth contour south of 36° N. lat. This 

allows for more opportunities in areas 

south of 36° N. lat., where canary 

rockfish and petrale sole encounters are 

minimal, than in the north. 

However, implementation of a 

boundary line approximating the 250-fm 

(457-m) depth contour south of 38° N. 

lat. to the U.S./Mexico border is not 

possible through an inseason action 

because coordinates do not exist in 

Federal regulations for that line. In 

keeping with the Pacific Council’s 

intent to increase the size of the trawl 

RCA to protect petrale sole and canary 

rockfish in general, and, in this case, to 

move the seaward boundary of the trawl 

RCA to protect petrale sole, the next 

closest RCA boundary line for this area 

with coordinates published in Federal 

regulations is a boundary line 

approximating the 200-fm (366-m) 

depth contour. Because there is catch of 

petrale between 200-fm (366-m) and 

250-fm (457-m) in this area, NMFS 

expects that this change alone will not 

keep total catch of petrale sole within 

the ABC/OY for petrale, thus NMFS is 

also prohibiting the retention of petrale 

sole in this area during October as 

explained below in the following 

section titled ‘‘ Limited Entry Trawl 

Trip Limit Adjustments.’’ This 

combination of measures gets the 

management scheme as close as possible 

to what was recommended by the 

Pacific Council. 

58068 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

While the open access non-groundfish 

fisheries have historically been subject 

to the same trawl RCA boundaries as 

limited entry trawl fisheries, the open 

access non-groundfish trawl fisheries 

only encounter minimal amounts of 

petrale sole and Dover sole. For 

example, 2004 fishticket data from the 

California halibut fishery shows a total 

of 150 lb (68 kg) of petrale sole landed 

between October and December in the 

area between 40°30′ N. lat. and 36° N. 

lat. In addition, the catch of canary 

rockfish in the open access nongroundfish trawl fisheries has already 

been accounted for in the bycatch 

scorecard separately from the limited 

entry trawl fishery, and are projected to 

take 0.1 mt for the year. Therefore, the 

non-groundfish trawl RCA for the open 

access non-groundfish trawl fisheries 

has not been adjusted to reflect changes 

in what has generally been called the 

‘‘trawl RCA.’’

Therefore, the Pacific Council 

recommended and NMFS is 

implementing the following inseason 

changes to be effective October through 

December: 

1. Between the U.S./Canada border 

and 36° N. lat., move the shoreward 

boundary of the limited entry trawl RCA 

from a boundary line approximating 

100-fm (183-m) to the shoreline in 

October, and from a boundary line 

approximating 75-fm (137-m) to the 

shoreline in November and December; 

2. Between 36° N. lat. and the U.S./ 

Mexico border, move the shoreward 

boundary of the limited entry trawl RCA 

from a boundary line approximating 

100-fm (183-m) to a boundary line 

approximating 50-fm (91-m) in October, 

and from a boundary line approximating 

75-fm (137-m) to a boundary line 

approximating 50-fm (91-m) in 

November and December; 

3. Between the U.S./Canada border 

and 40°10′ N. lat., move the seaward 

boundary of the limited entry trawl RCA 

from a boundary line approximating 

200-fm (366-m) to a boundary line 

approximating 250-fm (457-m) in 

October, and from a boundary line 

approximating 200-fm (366-m), as 

modified to accommodate petrale 

fishing, to a boundary line 

approximating 250-fm (457-m)(not 

modified to accommodate petrale 

fishing) in November and December; 

and 

4. Between 40°10′ N. lat. and 38° N. 

lat., move the seaward boundary of the 

limited entry trawl RCA from a 

boundary line approximating 150-fm 

(274-m) to a boundary line 

approximating 250-fm (457-m) in 

October through December. 

In addition, as explained above, 

NMFS is implementing something 

different than what the Pacific Council 

recommended for the seaward boundary 

of the limited entry trawl RCA south of 

38° N. lat. NMFS is implementing the 

following inseason changes to be 

effective October through December, 

2005: 

5. Between 38° N. lat. and the U.S./ 

Mexico border, move the seaward 

boundary of the limited entry trawl RCA 

from a boundary line approximating 

150-fm (274-m) to a boundary line 

approximating 200-fm (366-m) in 

October through December; and 

6. Between 34°27′ N. lat. and the U.S./ 

Mexico border, move the seaward 

boundary of the limited entry trawl RCA 

around islands from a boundary line 

approximating 150-fm (274-m) to a 

boundary line approximating 200-fm 

(366-m) in October through December. 

Limited Entry Trip Limit Adjustments 

(Note: The analysis and projections in the 

discussion below were based on 

recommendations given at the Pacific 

Council meeting when the seaward boundary 

of the limited entry trawl RCA south of 38° 

N. lat. was assumed to be at 250-fm.) 

The limited entry trawl trip limits for 

DTS, ‘‘other flatfish,’’ petrale sole, 

English sole, arrowtooth flounder, 

minor slope rockfish, darkblotched 

rockfish and splitnose rockfish are 

adjusted based on observer data, 

logbook data, current fish ticket 

landings data from PacFIN and on 

analysis using the trawl model. 

As mentioned previously under the 

‘‘Limited Entry Trawl RCA Changes,’’

fishticket landings data from PacFIN 

through mid-September in 2005 were 

reviewed at the Pacific Council meeting. 

Compared to trawl model projections for 

2005, landings for petrale sole and 

Dover sole were higher than what had 

been projected in the trawl model. 

Higher landings of petrale sole and 

Dover sole are of particular concern, 

because access to flatfish stocks is 

substantially more liberal than in recent 

years, and these species were initially 

modeled to achieve their respective 

OYs. While flatfish trip limits were 

initially reduced through the May 4, 

2005 inseason action (70 FR 23040), 

further reductions are necessary to slow 

the catch of flatfish species through the 

end of the year. 

Trip limits for petrale sole will be 

substantially reduced in November and 

December (Period 6), with the intent to 

discourage targeting but allow 

incidental catch in the DTS fishery to 

minimize discard. This reduction 

combined with the limited entry trawl 

RCA changes recommended at the 

Pacific Council meeting, is projected to 

keep petrale sole catch within its ABC/ 

OY for the year (2,748 mt predicted to 

be caught out of an ABC/OY of 2,762 

mt). 

Trip limits for DTS are also adjusted 

to slow the catch of Dover sole while 

still allowing some targeting. While trip 

limits for sablefish and thornyheads 

were increased for some trawl gear types 

in some areas through the July 5, 2005 

inseason changes (70 FR 38596), trip 

limits for DTS in all areas are generally 

being reduced in November and 

December. Because there is no area open 

to trawl fishing shoreward of the trawl 

RCA north of 40°10′ N. lat., all gear 

types will have the same trip limits 

seaward of the trawl RCA in November 

and December. Therefore, Dover sole 

trip limits in November and December 

(period 6) are being increased from 

previously scheduled limits for fishers 

using selective flatfish trawl gear and 

decreased from previously scheduled 

limits for fishers using small or large 

footrope trawl gear, so the trip limits for 

all gear types will be the same. 

In addition, the Dover sole trip limit 

north of 40°10′ N. lat. will be increased 

slightly for the September and October 

cumulative limit period (period 5). 

Because the trawl RCA in this area will 

extend between the shoreline and a 

boundary line approximating the 250-fm 

(457-m) depth contour beginning in 

October (the middle of a cumulative 

limit period), the Dover sole trip limit 

is increased to make the trip limits for 

all trawl gear, including selective 

flatfish trawl gear, match. Previously, 

fishers who used selective flatfish trawl 

gear to catch Dover sole shoreward of 

the RCA had a higher trip limit (35,000 

lb (15.9 mt) as opposed to 30,000 lb 

(13.6 mt) seaward of the trawl RCA). 

This differential trip limit was intended 

to encourage fishers to use selective 

flatfish trawl gear which has been 

shown to have lower incidental catch of 

overfished groundfish species. Thus, by 

increasing the Dover sole trip limit for 

all trawl gears to match the highest trip 

limit allowed during Period 5, fishers 

who have previously used selective 

flatfish trawl gear shoreward of the RCA 

will not be restricted to that lower limit 

when fishing seaward of the trawl RCA 

for the remainder of Period 5. 

Trip limits for the ‘‘other flatfish’’

complex, English sole and arrowtooth 

flounder will also be reduced in Period 

6 to reduce the take of Dover sole, a cooccurring flatfish species. 

All of these changes, the reduction in 

DTS trip limits during Period 6, the 

increase in the Dover sole trip limit 

north of 40°10′ N. lat. during Period 5, 

and the reduction in flatfish trip limits, 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58069 

are projected to keep catch of DTS 

species within their OYs for the year 

(Dover sole: projected limited entry 

trawl take is 7,431 mt out of an OY of 

7,476 mt; longspine thornyhead: 696 mt 

out of an OY of 2,646 mt; shortspine 

thornyhead: 723 mt out of an OY of 999 

mt; and sablefish: 2,429 mt out of an OY 

of 7,761 mt). 

Trip limits for minor slope rockfish/ 

darkblotched rockfish and splitnose 

rockfish between 40°10′ N. lat. and 38° 

N. lat. will also be reduced in Period 6 

to reduce the take of Dover sole and 

petrale sole, species which co-occur 

with these slope rockfish. In addition, 

with the seaward boundary of the trawl 

RCA moving out to a boundary line 

approximating the 250-fm (457-m) 

depth contour, the likelihood of 

catching these species decreases. 

As previously discussed in the section 

on ‘‘Limited Entry Trawl RCA 

Changes,’’ the Pacific Council 

recommended that NMFS implement a 

seaward limited entry trawl RCA 

boundary line approximating the 250-fm 

(457-m) depth contour coastwide in 

order to nearly eliminate the catch of 

petrale sole. However, NMFS is not able 

to implement this line south of 38° N. 

lat. to the U.S./Mexico border because 

there are no coordinates for this line in 

Federal regulations. Therefore, in order 

to implement the intent of the Pacific 

Council recommendation as much as 

possible, NMFS is implementing a 

boundary line approximating the 200-fm 

(366-m) depth contour and a prohibition 

on the retention of petrale sole in this 

area. Because there is catch of petrale 

between 200-fm (366-m) and 250-fm 

(457-m), including some targeting on 

petrale sole, moving the RCA boundary 

line from 150-fm (274-m) to 200-fm 

(366-m) for October through December 

will likely not keep total catch of petrale 

sole within its ABC/OY for the year. A 

reduction of the petrale sole trip limit 

during the middle of a cumulative trip 

limit period (in this case, September 

through October) is not possible for 

enforcement reasons. Therefore, in 

addition to the line change, NMFS is 

also implementing a prohibition on the 

retention of petrale sole between 38° N. 

lat. and the U.S./Mexico border during 

the month of October in order to prevent 

targeting on petrale sole. During 

November and December, the Pacific 

Council recommendation of decreasing 

the trip limit for petrale sole to 2,000 lb 

(0.9 mt) per 2 months is sufficient to 

allow retention of incidentally caught 

petrale sole while not encouraging 

targeting. 

Therefore, the Pacific Council 

recommended and NMFS is 

implementing the following inseason 

adjustments: 

1. North of 40°10′ N. lat., with large 

and small footrope trawl gear, increase 

Dover sole trip limits from 30,000 lb 

(13.6 mt) per 2 months to 35,000 lb (15.9 

mt) per 2 months in Period 5 

(September through October); 

2. North of 40°10′ N. lat., with large 

and small footrope trawl gear, decrease 

Dover sole trip limits from 22,000 lb 

(10.0 mt) per 2 months to 20,000 lb (9.1 

mt) per 2 months, decrease shortspine 

thornyhead trip limits from 3,700 lb (1.7 

mt) per 2 months to 3,500 lb (1.6 mt) per 

2 months, decrease longspine 

thornyhead trip limits from 15,000 lb 

(6.8 mt) per 2 months to 7,000 lb (3.2 

mt) per 2 months, and decrease 

sablefish trip limits from 13,000 lb (5.9 

mt) per 2 months to 11,000 lb (5.0 mt) 

per 2 months in Period 6 (November 

through December); 

3. North of 40°10′ N. lat., with 

selective flatfish trawl gear, increase 

Dover sole trip limits from 8,000 lb (3.6 

mt) per 2 months to 20,000 lb (9.1 mt) 

per 2 months, increase shortspine 

thornyhead trip limits from 2,000 lb (0.9 

mt) per 2 months to 3,500 lb (1.6 mt) per 

2 months, increase longspine 

thornyhead trip limits from 2,000 lb (0.9 

mt) per 2 months to 7,000 lb (3.2 mt) per 

2 months, and increase sablefish trip 

limits from 10,000 lb (4.5 mt) per 2 

months to 11,000 lb (5.0 mt) per 2 

months in Period 6; 

4. North of 40°10′ N. lat., with large 

and small footrope trawl gear, decrease 

‘‘other flatfish,’’ English sole and petrale 

sole trip limits from ‘‘80,000 lb (36.3 mt) 

per 2 months, no more than 60,000 lb 

(27.2 mt) per 2 months of which may be 

petrale sole’’ to ‘‘30,000 lb (13.6 mt) per 

2 months, no more than 2,000 lb (0.9 

mt) per 2 months of which may be 

petrale sole’’ in Period 6; 

5. North of 40°10′ N. lat., with 

selective flatfish trawl gear, decrease 

‘‘other flatfish,’’ English sole and petrale 

sole trip limits from ‘‘75,000 lb (34.0 mt) 

per 2 months, no more than 15,000 lb 

(6.8 mt) per 2 months of which may be 

petrale sole’’ to ‘‘30,000 lb (13.6 mt) per 

2 months, no more than 2,000 lb (0.9 

mt) per 2 months of which may be 

petrale sole’’ in Period 6; 

6. North of 40°10′ N. lat., with large 

and small footrope trawl gear, decrease 

arrowtooth flounder trip limits from 

80,000 lb (36.3 mt) per 2 months to 

50,000 lb (22.7 mt) per 2 months in 

Period 6; 

7. North of 40°10′ N. lat., with 

selective flatfish trawl gear, decrease 

arrowtooth flounder trip limits from 

70,000 lb (31.8 mt) per 2 months to 

50,000 lb (22.7 mt) per 2 months in 

Period 6; 

8. South of 40°10′ N. lat., decrease 

Dover sole trawl trip limits from 35,000 

lb (15.9 mt) per 2 months to 30,000 lb 

(13.6 mt) per 2 months, decrease 

shortspine thornyhead trip limits from 

4,600 lb (2.1 mt) per 2 months to 3,500 

lb (1.6 mt) per 2 months, decrease 

longspine thornyhead trip limits from 

19,000 lb (8.6 mt) per 2 months to 

11,000 lb (5.0 mt) per 2 months, and 

decrease sablefish trip limits from 

16,000 lb (7.3 mt) per 2 months to 9,000 

lb (4.1 mt) per 2 months in Period 6 

(November through December); 

9. Between 40°10′ N. lat. and 38° N. 

lat., decrease ‘‘other flatfish,’’ and 

English sole trawl trip limits from 

110,000 lb (49.9 mt) per 2 months to 

30,000 lb (13.6 mt) per 2 months in 

Period 6; 

10. South of 38° N. lat., decrease 

‘‘other flatfish,’’ and English sole trawl 

trip limits from 110,000 lb (49.9 mt) per 

2 months to 40,000 lb (18.1 mt) per 2 

months in Period 6; 

11. South of 40°10′ N. lat., decrease 

petrale sole trawl trip limits from 

100,000 lb (45.4 mt) per 2 months to 

2,000 lb (0.9 mt) per 2 months in Period 

6; 

12. Between 40°10′ N. lat. and 38° N. 

lat., decrease arrowtooth flounder trawl 

trip limits from 20,000 lb (9.1 mt) per 

2 months to 10,000 lb (4.5 mt) per 2 

months in Period 6; 

13. South of 38° N. lat., decrease 

arrowtooth flounder trawl trip limits 

from 20,000 lb (9.1 mt) per 2 months to 

5,000 lb (2.3 mt) per 2 months in Period 

6; and 

14. Between 40°10′ N. lat. and 38° N. 

lat., decrease both the minor slope 

rockfish/darkblotched rockfish and the 

splitnose rockfish trawl trip limits from 

8,000 lb (3.6 mt) per 2 months to 6,000 

lb (2.7 mt) per 2 months in Period 6. 

In addition, NMFS is implementing 

the following inseason adjustment: 

(15) Between 38° N. lat. to the U.S./ 

Mexico border, decrease petrale sole 

trawl trip limits from 42,000 lb per 2 

months during September and October 

to closed (i.e., retention is prohibited) 

during the month of October. 

Bycatch Limits for Widow Rockfish in 

the Pacific Whiting Fishery 

Widow rockfish, an overfished 

groundfish species, co-occurs with 

Pacific whiting and is, therefore, 

commonly caught in Pacific whiting 

fisheries. Beginning in 2005, NMFS 

implemented a bycatch limit for certain 

overfished species that co-occur with 

whiting fisheries, particularly canary 

and widow rockfish which are 

constraining to the whiting fishery in 

2005 and 2006. Implementing bycatch 

limits allowed NMFS to set a higher OY 

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for Pacific whiting in 2005 and 2006 

than would otherwise have been 

possible. Because catch in the Pacific 

whiting fishery can be tracked by NMFS 

with near real-time data, NMFS has the 

ability to manage the Pacific whiting 

fishery to stay within bycatch limits. 

Based on PacFIN QSM data for the 

shore-based sector as of the September 

12, 2005, and on real-time observer data 

for the at-sea sector, the non-tribal 

Pacific whiting sector had taken 149.6 

mt of the 200 mt widow rockfish 

bycatch limit. In order to deter a derby 

fishery that would harvest as much 

whiting as possible before the widow 

rockfish bycatch limit is reached, the 

Pacific Council considered whether 

some of the widow rockfish not yet set 

aside or projected to be taken by other 

sectors in the bycatch scorecard (a 

management tool used by the Pacific 

Council’s Groundfish Management 

Team (GMT)) could be moved into the 

whiting fishery’s projected take for 

2005, and hence bycatch limits as stated 

in regulation at 50 CFR 660.373(b)(4). Of 

the 26.8 mt of widow rockfish estimated 

to be available, the Pacific Council 

moved 12 mt of that into the widow 

rockfish bycatch limit for the Pacific 

whiting fishery. 

Therefore, the Pacific Council 

recommended and NMFS is 

implementing an increase in the 2005 

bycatch limit for Pacific whiting, as 

stated at 50 CFR 660.373(b)(4), from 200 

mt of widow rockfish to 212 mt. 

While NMFS has recently been 

concerned about the bycatch of Chinook 

salmon in the Pacific whiting fisheries, 

this action is not expected to increase 

salmon bycatch. A temporary rule, 

effective August 26, 2005, through 

February 27, 2006 (August 31, 2005, 70 

FR 51682), created a closed area, called 

the Ocean Salmon Conservation Zone, 

which is closed to fishing for Pacific 

whiting shoreward of a boundary line 

approximating the 100-fm (183-m) 

depth contour to protect Chinook 

salmon. Limited Entry Fixed Gear and 

Open Access ‘‘daily Trip Limit (DTL) 

Fishery for Sablefish North of 36° N. 

Lat. 

Based on PacFIN QSM data through 

September 12, 2005, the sablefish DTL 

sectors, both limited entry fixed gear 

and open access, have attained less than 

half of their allocation for the year. As 

a result, the Pacific Council’s GMT 

analyzed an increase to the DTL 

fishery’s daily, weekly, and bimonthly 

limits for the fishery north of 36° N. lat. 

As part of their analysis, the GMT 

considered likely increases in effort and 

limit attainment from vessels engaged in 

the DTL fishery. This inseason 

adjustment is not expected to result in 

increased levels of bycatch beyond what 

is already accounted for in the bycatch 

scorecard, since those estimates were 

based on the assumption that each 

sector would achieve its allocation. 

Therefore, the Pacific Council 

recommended and NMFS is 

implementing an increase in the limited 

entry fixed gear and open access daily 

trip limit fishery for sablefish north of 

36° N. lat. to the U.S./Canada border 

from 300 lb (136 kg)/day, or 1 landing 

per week of up to 900 lb (408 kg), not 

to exceed 3,600 lb/ (1,633 kg) 2 months 

to 500 lb (227 kg)/day, or 1 landing per 

week of up to 1,500 lb (680 kg), not to 

exceed 9,000 lb (4,082)/2 months for 

October through December. 

Washington’s Recreational Groundfish 

RCA 

The States of Washington and Oregon 

manage canary and yelloweye rockfish 

under a joint harvest guideline for their 

recreational fisheries. The Washington 

Department of Fish and Wildlife 

(WDFW) committed to take management 

action to close portions of its 

recreational fisheries seaward of a 

boundary line approximating the 30-fm 

(55-m) depth contour as an inseason 

adjustment, if the harvest guideline for 

canary and/or yelloweye rockfish were 

projected to be reached. 

At the end of July, 2005, after 

receiving the recreational catch data 

through June, WDFW’s revised catch 

projections for the year indicated that 

1.8 mt of canary rockfish would be 

harvested (as compared to a state 

harvest target of 1.7 mt, and a shared 

harvest guideline of 8.5 mt). At that 

time, the revised catch projection for 

yelloweye rockfish was still below the 

state harvest target. In response, 

effective August 5, 2005, WDFW 

adopted an emergency regulation to 

close its recreational bottomfish and 

halibut fisheries seaward of a boundary 

line approximating the 30-fm (55-m) 

depth contour from the U.S./Canada 

border to Leadbetter Pt., WA (46°38.17′ 

N. lat.) (Washington Marine Catch Areas 

2, 3, and 4). The action did not apply 

to the area between Leadbetter Pt. and 

the Columbia River as the canary and 

yelloweye rockfish catches in this area 

are extremely low. 

At the end of August, after receiving 

the recreational catch data through July, 

WDFW’s revised catch projections for 

the year indicated that 1.8 mt of canary 

rockfish was still expected to be 

harvested. However, the revised catch 

projection for yelloweye rockfish is 4.2 

mt (out of a 3.5 mt state harvest target, 

and a shared harvest guideline of 6.7 

mt). However, it is expected that, with 

the fishery closed seaward of a 

boundary line approximating the 30-fm 

(55-m) depth contour, the additional 

yelloweye rockfish harvest will be nearzero through the end of the year. 

Washington recreational fisheries for 

bottomfish typically decline in 

September and halibut fisheries close at 

the end of September. Therefore, further 

restricting the Washington recreational 

fishery after September will have little 

to no effect. 

Therefore, the Pacific Council 

recommended and NMFS is 

implementing a boundary line 

approximating the 30-fm (55-m) depth 

contour between the U.S./Canada border 

and 46°38.17′ N. lat. (Leadbetter Point, 

WA) for the same reasons that 

Washington took its regulatory action 

and in order for Federal regulations to 

conform to the state regulations for 

Washington recreational groundfish 

fisheries. 

Oregon’s Recreational Groundfish 

Fishery Bag Limits 

Due to poor recreational ocean salmon 

catches off Oregon in 2005, there was a 

notable effort shift from targeted salmon 

trips to targeted groundfish trips. In 

addition, Oregon anglers are 

experiencing increased catch rates of 

groundfish species, particularly black 

rockfish, blue rockfish, and yelloweye 

rockfish. In an effort to slow catch of 

groundfish species and ensure that the 

recreational fishery can continue 

through the end of the year, the Oregon 

Department of Fish and Wildlife 

(ODFW) took action, effective July 16, 

2005, to reduce the marine fish daily 

bag limit from eight fish to five fish. In 

addition, ODFW revised their catch 

projection in the bycatch scorecard for 

yelloweye rockfish in the recreational 

fishery to 4.0 mt. The shared ODFW/ 

WDFW yelloweye rockfish recreational 

harvest guideline was also revised in the 

bycatch scorecard from 6.7 mt to 8.5 mt 

(4.0 mt in Oregon, 4.2 mt in 

Washington, and 0.3 mt buffer). 

ODFW also prohibited retention of 

cabezon in their recreational ocean boat 

fishery beginning August 11, 2005. 

Landings data indicated that the state 

imposed ocean boat harvest cap of 15.8 

mt had been reached. 

Therefore, the Pacific Council 

recommended and NMFS is 

implementing a decrease in the 

recreational marine fish daily bag limit 

off of Oregon from eight fish to five fish 

and a prohibition on the retention of 

cabezon by the ocean boat sector for the 

same reasons that Oregon took its 

regulatory action and in order for 

Federal regulations to conform to the 

state regulations for Oregon recreational 

groundfish fisheries. 

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Classification 

These actions are authorized by the 

Pacific Coast groundfish FMP and 

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. 

Pursuant to 5 U.S.C. 553(b)(B), there 

is good cause to waive prior notice and 

an opportunity for public comment, as 

notice and comment would be 

impracticable and contrary to the public 

interest. The data upon which these 

recommendations were based were 

provided to the Pacific Council and the 

Pacific Council made its 

recommendations at its September 19–

23, 2005, meeting in Portland, OR. 

There was not sufficient time after that 

meeting to draft this document and 

undergo proposed and final rulemaking 

before most of these actions need to be 

in effect, October 1, 2005, as explained 

below. For the actions in this notice, 

prior notice and opportunity for 

comment would be impracticable and 

contrary to the public interest because 

affording the time necessary for prior 

notice and opportunity for public 

comment would impede the Agency’s 

function of 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 

include changes to the commercial and 

recreational groundfish fisheries. 

Changes to the limited entry trawl RCA 

must be implemented in a timely 

manner by October 1, 2005, so that total 

catch of groundfish, specifically petrale 

sole and canary rockfish, stays within 

the catch levels projected for 2005 based 

on modeling and the most current catch 

projections available. Changes to the 

limited entry trawl trip limit for Dover 

sole must be implemented in a timely 

manner by October 1, 2005, so that the 

trip limits for all trawl gear types are the 

same and participants are not 

unnecessarily restricted to a lower 

harvest level because of differential trip 

limits. Changes to the limited entry 

trawl trip limit for petrale sole must be 

implemented in a timely manner by 

October 1, 2005, so that total catch stays 

below the petrale sole ABC/OY. Other 

changes to the limited entry trawl trip 

limits must be implemented in a timely 

manner by November 1, 2005, the next 

2 month cumulative limit period, so that 

total catch of groundfish, specifically 

petrale sole and Dover sole, stays within 

the catch levels projected for 2005 based 

on modeling and the most current catch 

projections available. Changes to the 

widow rockfish bycatch limit in the 

whiting fishery must be implemented by 

October 1, 2005, in order to provide an 

opportunity for participants in this 

fishery to harvest the available whiting 

quota without being closed early due to 

attainment of an unnecessarily low 

widow rockfish bycatch limit. Changes 

to the limited entry fixed gear and open 

access DTL sablefish fishery must be 

implemented by October 1, 2005, in 

order to provide an opportunity for 

participants in these fisheries to harvest 

the available quota. Changes to 

Washington’s recreational fishery RCA 

and Oregon’s recreational fishery bag 

limits must be implemented as soon as 

possible in order to conform Federal 

and state recreational regulations, to 

protect overfished groundfish species, 

and to keep the harvest of other 

groundfish species within the harvest 

levels projected for 2005. Delaying any 

of these changes would result in 

management measures that fail to use 

the best available science and, in some 

cases, could lead to early closures of the 

fishery if harvest of groundfish exceeds 

levels projected for 2005. This would be 

contrary to the public interest because it 

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. Delaying 

implementation could also lead to 

exceeding the ABC and/or OY for some 

species. Thus, the delay would also be 

contrary to the public’s interest in 

protecting overfished species and other 

groundfish species from overfishing. 

For these reasons, good cause also 

exists to waive the 30-day delay in 

effectiveness requirement under 5 

U.S.C. 553 (d)(3) for all actions taken in 

this notice. 

These actions are taken under the 

authority of 50 CFR 660.370(c) and are 

exempt from review under Executive 

Order 12866. 

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: September 30, 2005. 

Alan D. Risenhoover, 

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 AND IN THE 

WESTERN PACIFIC 

■ 1. The authority citation for part 660 

continues to read as follows: 

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

■ 2. In § 660.373, paragraph (b)(4) is 

revised to read as follows: 

§ 660.373 Pacific whiting (whiting) fishery 

management. 

* * * * * 

(b) * * * 

(4) 2005–2006 bycatch limits in the 

whiting fishery. The bycatch limits for 

the whiting fishery may be used 

inseason to close a sector or sectors of 

the whiting fishery to achieve the 

rebuilding of an overfished or depleted 

stock, under routine management 

measure authority at § 660.370(c)(1)(ii). 

These limits are routine management 

measures under § 660.370(c) and, as 

such, may be adjusted inseason or may 

have new species added to the list of 

those with bycatch limits. For 2005, the 

whiting fishery bycatch limits for the 

sectors identified § 660.323(a) are 4.7 mt 

of canary rockfish and 212 mt of widow 

rockfish. For 2006, the whiting fishery 

bycatch limits are 7.3 mt of canary 

rockfish and 243.2 mt of widow 

rockfish. 

* * * * * 

■ 3. In § 660.384, paragraphs (c)(1)(i)(B) 

and (c)(2)(iii) are revised to read as 

follows: 

§ 660.384 Recreational fishery 

management measures. 

* * * * * 

(c) * * * 

(1) * * * 

(i) * * * 

(B) Recreational Rockfish 

Conservation Area. Fishing for 

groundfish with recreational gear is 

prohibited within the recreational RCA. 

It is unlawful to take and retain, 

possess, or land groundfish taken with 

recreational gear within the recreational 

RCA. A vessel fishing in the recreational 

RCA may not be in possession of any 

groundfish. For example, if a vessel 

participates in the recreational salmon 

fishery within the RCA, the vessel 

cannot be in possession of groundfish 

while in the RCA. The vessel may, 

however, on the same trip fish for and 

retain groundfish shoreward of the RCA 

on the return trip to port.) Off 

Washington, recreational fishing for all 

groundfish is prohibited seaward of a 

recreational RCA boundary line 

approximating the 30–fm (55–m) depth 

contour from the U.S./Canada border 

south to Leadbetter Pt., WA (46°38.17′ 

58072 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

N. lat.). Coordinates for the boundary 

line approximating the 30–fm (55–m) 

depth contour are listed in § 660.391. 

* * * * * 

(2) * * * 

(iii) Bag limits, size limits. The bag 

limits for each person engaged in 

recreational fishing in the EEZ seaward 

of Oregon are two lingcod per day, 

which may be no smaller than 24 in (61 

cm) total length; and five marine fish 

per day, which excludes Pacific halibut, 

salmonids, tuna, perch species, 

sturgeon, sanddabs, lingcod, striped 

bass, hybrid bass, offshore pelagic 

species and baitfish (herring, smelt, 

anchovies and sardines), but which 

includes rockfish, greenling, cabezon 

and other groundfish species. Retention 

of cabezon is prohibited by Oregon’s 

recreational ocean boat fishery, but is 

permitted in the shore-based fishery. 

The minimum size limit for cabezon 

retained in the recreational fishery is 16 

in (41 cm) and for greenling is 10 in (26 

cm). Taking and retaining canary 

rockfish and yelloweye rockfish is 

prohibited. In the Pacific halibut 

fisheries, retention of groundfish is 

governed in part by the Pacific halibut 

regulations. South of the Washington/ 

Oregon border to Cape Falcon, OR, 

when Pacific halibut are onboard the 

vessel, landing groundfish, except 

sablefish, is prohibited. South of Cape 

Falcon, OR, to Humbug Mountain, OR, 

when Pacific halibut are onboard the 

vessel, retention of groundfish, except 

sablefish, is prohibited during the 

Central Coast sport halibut ‘‘all-depth’’

season days. ‘‘All-depth’’ season days 

are established in the annual 

management measures for Pacific 

halibut fisheries, which are published in 

the Federal Register and are announced 

on the NMFS halibut hotline, 1–800–

662–9825. 

* * * * * 

■ 4. In part 660, subpart G, Tables 3 

(both North and South), Tables 4 (both 

North and South) and Tables 5 (both 

North and South) are revised to read as 

follows: 

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