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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 0809121213-9221-02]
          - RIN 0648-AY82

# AGENCY:

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

# ACTION:

Final rule; inseason adjustments to management measures; announcement of elimination of incidental Pacific halibut retention allowance; request for comments.

# SUMMARY:

This final rule announces two actions: an inseason change to the regulations regarding the retention of Pacific halibut landed incidentally in the limited entry fixed gear primary sablefish fishery north of Pt. Chehalis, Washington (46°53.30′ N. lat.); and an inseason change to the cumulative limit for minor slope rockfish and darkblotched rockfish north of 40°10.00′ N. lat. in the commercial Pacific Coast groundfish limited entry trawl fishery. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to prevent exceeding the 2010 Area 2A Pacific halibut quota and to prevent exceeding the 2010 OY for darkblotched rockfish, an overfished species.

# DATES:

Effective 0001 hours (local time) May 1, 2010. Comments on this final rule must be received no later than 5 p.m., local time on June 3, 2010.

# ADDRESSES:

You may submit comments, identified by RIN 0648-AY82 by any one of the following methods:
      -  Electronic Submissions:                          Submit all electronic public comments via the Federal eRulemaking Portal                          http://www.regulations.gov.       ( print page 23616)      
      -  Fax:                          206-526-6736, Attn: Gretchen Hanshew.                    
      -  Mail:                          Barry A. Thom, Acting Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Gretchen Hanshew.                    

*Instructions:*                         No comments will be posted for public viewing until after the comment period has closed. 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). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

# FOR FURTHER INFORMATION CONTACT:

                        Gretchen Hanshew (Northwest Region, NMFS), phone: 206-526-6147, fax: 206-526-6736 and e-mail                         *gretchen.hanshew@noaa.gov.*

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This final rule is accessible via the Internet at the Office of the                     **Federal Register**                    's Web site at                     *http://www.gpoaccess.gov/​fr/​index.html.*                     Background information and documents are available 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 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 was 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). This final rule was subsequently amended by inseason actions on April 27, 2009 (74 FR 19011), July 6, 2009 (74 FR 31874), October 28, 2009 (74 FR 55468), and February 26, 2010 (75 FR 8820). Additional changes to the 2009-2010 specifications and management measures for petrale sole were made in two final rules: On November 4, 2009 (74 FR 57117), and December 10, 2009 (74 FR 65480). These specifications and management measures are at 50 CFR part 660, subpart G.

The reduction to the bimonthly cumulative limit for minor slope rockfish and darkblotched rockfish in the limited entry bottom trawl fishery implemented by this action was recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its April 9 through April 15, 2010, meeting in Portland, Oregon. The elimination of incidental Pacific halibut (halibut) retention in the limited entry fixed gear primary sablefish fishery north of Point Chehalis, Washington (46°53.30′ N. lat.) is implemented in order to achieve consistency with the 2010 halibut rule and Catch Sharing Plan published on March 18, 2010 (75 FR 13024). These changes must be effective on May 1, 2010.

                    On April 23, 2010, NMFS received a decision in the case of                     *Natural Resources Defense Council*                     v.                     *Locke,*                     Case No. C 01-0421 JL (N.D. Cal.) in which the court has ruled against NMFS on an issue relating to darkblotched rockfish. The court has not yet issued the Order on Remedy, and NMFS is in the process of determining the full implications of this decision. NMFS is publishing this rule as scheduled for the reasons described below. Upon further review of the court decision NMFS will determine whether additional measures may be needed with respect to darkblotched rockfish and will implement any such measures in a subsequent rule.                

## Limited Entry Fixed Gear Sablefish Primary Fishery

The International Pacific Halibut Commission (IPHC) sets the halibut total allowable catch (TAC) on an annual basis. A portion of the TAC is available to fisheries in Area 2A (waters off the U.S. West Coast). The Council's Catch Sharing Plan (CSP) guides allocation of the Area 2A portion of the TAC to the various commercial and recreational fisheries in Area 2A. It provides that if the Area 2A TAC is greater than 900,000 lb, the portion of the Washington sport allocation that is in excess of 214,110 lb is available to the primary directed sablefish fishery north of Point Chehalis. NMFS published the 2010 halibut final rule and CSP on March 18, 2010 (75 FR 13024). The final Area 2A halibut TAC for 2010 was adopted by the IPHC at their January 26 through January 29, 2010 meeting, and is below 900,000-lbs (408-mt). Therefore, based on the CSP, no halibut quota is assigned to the limited entry fixed gear sablefish primary fishery. Since there is no halibut available for this fishery in 2010, no retention of halibut will be allowed in the limited entry fixed gear sablefish primary fishery north of Point Chehalis, Washington.

The Council was notified of this issue at its March 6 through March 11, 2010 meeting. Through this inseason rule, NMFS is eliminating the halibut retention allowance for the limited entry fixed gear sablefish fishery north of Point Chehalis, Washington (46°53.30′ N. lat.) to change the 2010 Pacific halibut possession and landing limits in this area from “100-lb (45-kg) dressed weight, head-on of halibut per fishing trip” to “no retention of halibut.” Limited Entry Trawl Fishery North of 40°10.00′ N. lat.

Catches of darkblotched rockfish in the limited entry trawl fishery north of 40°10.00′ N. lat. are tracking ahead of projections. If no action were taken, and darkblotched rockfish catch rates remain higher than previously expected throughout the year, total coastwide catch of darkblotched rockfish through the end of the year is projected to be 369 mt, exceeding the 2010 coastwide darkblotched rockfish OY of 291 mt by 78 mt. Therefore, to slow catch of darkblotched rockfish and stay below the 2010 darkblotched rockfish OY, the Council at its April 9 through April 15, 2010 meeting considered an inseason adjustment reducing “minor slope rockfish and darkblotched rockfish” cumulative limits in the area north of 40°10.00′ N. lat. beginning on May 1, 2010. The Groundfish Management Team (GMT), an advisory body to the Council, recommended reducing the bimonthly cumulative limit from 6,000 lb (2722 kg) per two months to 2,000 lb (907 kg) per two months. With this change, if the species composition is unchanged under this lower limit, total coastwide catch of darkblotched rockfish through the end of the year is projected to be 285 mt, 6 mt below the 2010 OY.

                    Based on rationale described above, the Council recommended and NMFS is implementing a decrease in the limited entry trawl fishery cumulative limit for minor slope rockfish and darkblotched rockfish north of 40°10.00′ N. lat. from “6,000 lb (2722 kg) per two months” to “2,000 lb (907 kg) per two months” from May 1 through December 31.                          ( print page 23617)    

## Classification

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

                    This inseason adjustment is taken under the authority of: (1) The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and is in accordance with 50 CFR part 660, the regulations implementing the FMP; and (2) the Halibut Act and its implementing regulations. This action is based on the most recent data available. The aggregate data upon which this action is 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 revision 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 by May 1, 2010.

The 2010 Pacific halibut TAC was adopted by the IPHC at its January 2010 meeting and was presented to the Council at its March 5 through March 11, 2010, meeting in Sacramento, California. The change for the limited entry fixed gear sablefish fishery described in this rule is based on the 2010 TAC in conjunction with the 2010 CSP. The fishery data upon which the change in the limited entry bottom trawl fishery was based was provided to the Council at its April 10 through April 15, 2010, meeting in Portland, Oregon, the first Council meeting at which this data was available. These changes must be implemented by May 1, 2010 in order to avoid fisheries exceeding the 2010 halibut TAC and the 2010 darkblotched rockfish OY. There was not sufficient time after the March and April Council meetings to conduct 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 or TACs for Federally managed species in accordance with the FMP, the CSP, and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon and northern California.

These adjustments to management measures must be implemented in a timely manner to prevent the Area 2A portion of the 2010 halibut TAC from being exceeded. The elimination of halibut retention in the limited entry fixed gear sablefish primary fishery is intended to prevent exceeding the Area 2A portion of the 2010 Pacific halibut TAC. These changes must be implemented in a timely manner, by May 1, 2010 which is when the incidental halibut retention allowance is currently scheduled to begin.

These adjustments to management measures must be implemented in a timely manner to prevent the 2010 darkblotched rockfish OY from being exceeded. The decrease to the “minor slope rockfish and darkblotched rockfish” trip limit in the limited entry non-whiting bottom trawl fishery is intended to prevent exceeding the 2010 darkblotched rockfish OY, and prevent premature closure of fisheries that impact darkblotched rockfish, an overfished species. These changes must be implemented in a timely manner, by May 1, 2010, which is the start of the cumulative period. Even a short delay in implementation could allow fisheries to take the entire two month limit for this period.

Delaying the implementation of this rule would impair achievement of the Pacific halibut Catch Sharing Plan objective to manage fisheries to remain within the TAC for Area 2A, while also allowing each commercial, recreational (sport), and Tribal fishery to target halibut in the manner that is appropriate to meet both the conservation requirements for species that co-occur with Pacific halibut and the needs of fishery participants in particular fisheries and fishing areas. Such delay would also 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, and staying within the OY for darkblotched rockfish.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian fisheries

Dated: April 29, 2010.

Emily H. Menashes,

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.).*                             No halibut retention is allowed during the primary sablefish fishery in 2010.                        

* * * * *

3. Table 3 (North) to part 660, subpart G is revised to read as follows: 
      ( print page 23618)          ( print page 23619)          ( print page 23620)    

BILLING CODE 3510-22-P

[FR Doc. 2010-10400 Filed 4-29-10; 4:15 pm]

BILLING CODE 3510-22-C