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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 300
          - [Docket No. 0808211134-81140-01]
          - RIN 0648-AX21

# AGENCY:

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

# ACTION:

Final rule.

# SUMMARY:

                        NMFS withdraws regulations that placed limits on charter vessel anglers, including a one-halibut daily bag limit in International Pacific Halibut Commission Area 2C. The U.S. District Court for the District of Columbia issued a Temporary Restraining Order (TRO) on June 10, 2008 (amended on June 13, 2008), and a Preliminary Injunction (PI) on June 20, 2008, enjoining and restraining NMFS from giving any effect to or otherwise taking any action to enforce the one-halibut daily bag limit restriction for charter vessel anglers.                               ( print page 52796)                            The TRO (as amended) and the PI direct that the daily bag limit should revert to the two-fish daily bag limit with one fish no more than 32 inches (81.3 cm) head-on length that was in place prior to the one-fish daily bag limit. This action ensures that regulatory text provides accurate information to the regulated public. The intended effect is to make regulatory requirements consistent with a duly issued court order.                    

# DATES:

Effective September 8, 2008.

# ADDRESSES:

                        Copies of the Environmental Assessment (EA), Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), and Final Regulatory Flexibility Analysis (FRFA) prepared for the action withdrawn by this rule and a copy of the Categorical Exclusion prepared for this rule may be obtained from NMFS Alaska Region, P.O. Box 21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region website at                         *http://alaskafisheries.noaa.gov*.                    

# FOR FURTHER INFORMATION CONTACT:

Julie Scheurer or Jay Ginter, (907) 586-7228.

# SUPPLEMENTARY INFORMATION:

                    The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (                    *Hippoglossus stenolepis*) through regulations established under the authority of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k. (Halibut Act). The IPHC promulgates regulations governing the Pacific halibut fishery under the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention), signed in Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention, signed in Washington, DC, on March 29, 1979. Regulations developed by the IPHC are subject to approval by the Secretary of State with concurrence of the Secretary of Commerce (Secretary). After approval by the Secretary of State and concurrence by the Secretary, the IPHC regulations are published in the                     **Federal Register**                     as annual management measures pursuant to 50 CFR 300.62.                

The Halibut Act at section 773c(c) authorizes the Regional Fishery Management Council that has the authority for the geographic area concerned to develop regulations, subject to approval by the Secretary. These regulations are in addition to, and cannot conflict with, regulations recommended by the IPHC and approved by the Secretary of State. The North Pacific Fishery Management Council (Council) has the authority for the waters off Alaska. The Council has exercised its authority under the Halibut Act, most notably in the development of the Individual Fishing Quota (IFQ) Program, codified at 50 CFR part 679, and subsistence halibut fishery measures, codified at 50 CFR 300.65.

The Halibut Act at sections 773c(a) and (b) provides the Secretary with the general responsibility to carry out the Convention with the authority to, in consultation with the Secretary of the department in which the Coast Guard is operating (currently the Secretary of Homeland Security), adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act. Actions by NMFS are under delegated authority of the Secretary.

The Council, at its June 2007 meeting in Sitka, Alaska, initiated action to develop regulations to limit charter vessel angler catch to the guideline harvest level (GHL) for 2008. The GHL is an amount determined by taking the Annual Total Constant Exploitation Yield for Pacific halibut, which is the target amount of allowable mortality for a given area as determined by the IPHC, and comparing that to various levels in the table at 50 CFR 300.65(c)(1). After the appropriate yield is found in the table, a corresponding GHL amount can be determined. In June 2007, the GHL was at 1,432,000 lb (649.5 mt), and management measures had already been put into place to limit charter vessel angler catch. However, forecasts of the 2008 Annual Total Constant Exploitation Yield indicated that a potential reduction in that amount might be sufficient to reduce the Annual Total Constant Exploitation Yield to a lower level in the table at 50 CFR 300.65(c)(1), thus resulting in a lower corresponding GHL. Based on that information, the Council recommended that two alternative regulatory options be proposed, one option (Option A) to accommodate a GHL that would be the same as the one in 2007, and one option (Option B) to accommodate a lower GHL.

On December 31, 2007, NMFS published a proposed rule (72 FR 74257) that included the two options as explained above. The comment period for that proposed rule ended on January 30, 2008. On February 5, 2008, NMFS published a notice (73 FR 6709) pursuant to 50 CFR 300.65(c) indicating that the 2008 GHL for IPHC Area 2C was 931,000 lb (422.3 mt), based on the 2008 Annual Total Constant Exploitation Yield and the corresponding GHL in the table at 50 CFR 300.65(c)(1). The 2008 GHL was lower than the 2007 GHL. Based on information in the analysis that accompanied the proposed rule, NMFS published a final rule on May 28, 2008 (73 FR 30504), with management measures sufficient to limit the charter vessel angler catch to an amount close to the 2008 GHL (i.e., Option B, or the lower GHL scenario in the proposed rule). These management measures included a one-halibut daily bag limit for charter vessel anglers in IPHC Area 2C.

                    On June 2, 2008, various members of the charter vessel halibut fishery, including lodge owners and charter vessel owners in Southeast Alaska (Plaintiffs), brought action requesting a TRO against enforcement of the one-halibut daily bag limit (                    *Van Valin, et al. v. Gutierrez*, Civil Action No. 1:08-cv-941). On June 10, 2008, the U.S. District Court for the District of Columbia determined that the Plaintiffs had met their burden for the issuance of a TRO and granted the order (Order to Grant the Plaintiffs Motion for a Temporary Restraining Order, issued June 10, 2008, and Amended Order, issued June 13, 2008). On June 20, 2008, the Court issued a PI enjoining NMFS from enforcing its one-halibut daily bag limit. The Court determined that the Plaintiffs had met the burden for granting a PI, including demonstrating a likelihood of success on the merits of their claims.                

Based on the TRO and the PI invalidating the one-halibut daily bag limit, and the decreasing level of effectiveness of any management measures as the fishing season approaches its end (the majority of halibut is caught during June, July, and August), NMFS has decided to withdraw its regulations at 50 CFR part 300 that were published on May 28, 2008 (73 FR 30504).

## Classification

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

This final rule complies with the Halibut Act and the Secretary's authority to implement allocation measures for the management of the Pacific halibut fishery.

                    An Initial Regulatory Flexibility Analysis (IRFA) and a Final Regulatory Flexibility Analysis (FRFA) were prepared for the regulations that are withdrawn by this final rule. The IRFA and FRFA described the economic impact the withdrawn regulations would have had on directly regulated small entities compared with the                     *status quo*. The                     *status quo*                     evaluated in those analyses depicts the economic and regulatory conditions that will be in effect when the action is withdrawn. Summary descriptions of the IRFA and                           ( print page 52797)                        FRFA are contained in the proposed rule published December 31, 2007 (72 FR 74257) and the final rule published May 28, 2008 (73 FR 30504), respectively.                

                    The Assistant Administrator for Fisheries, NOAA, finds good cause to waive notice and public procedure on this action because it is contrary to the public interest, as provided by 5 U.S.C. 553(b)(B). This action ensures that regulatory text provides accurate information to the regulated public consistent with a duly issued court order. No alternative exists to compliance with the court order; therefore, opportunity for public comment would have no effect other than to slow the process of making the affected regulations consistent with the court order. The public would be best served by having accurate information in regulatory text immediately. Furthermore, the Assistant Administrator for Fisheries waives the 30-day delayed effectiveness period, as provided by 5 U.S.C. 553(d)(3) for the reasons stated above and because the impacts of this action (primarily the removal of a one-halibut daily bag limit for charter anglers in Area 2C) is already effective based on the court order and this will bring the codified regulations into compliance with currently effective bag limits. These waivers make the rule effective immediately upon filing with the Office of the                     **Federal Register**                    . Because notice and comment is not required, no additional regulatory flexibility analysis is required, and none has been prepared.                

# List of Subjects in 50 CFR Part 300

      - Fisheries
      - Fishing
      - Reporting and recordkeeping requirements
      - Treaties

Dated: September 8, 2008.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 50 CFR part 300 as follows:

# PART 300—INTERNATIONAL FISHERIES REGULATIONS

1. The authority citation for 50 CFR part 300, subpart E, continues to read as follows:

Authority:16 U.S.C. 773-773k.

§ 300.61

2. In § 300.61, remove definitions for “Area 3A”, “Charter vessel angler”, “Charter vessel fishing trip”, “Charter vessel guide”, “Charter vessel operator”, “Charter vessel services”, “Crew member”, and “Sport fishing guide services”. 

3. In § 300.65, revise paragraph (d) to read as follows: 

§ 300.65

* * * * *

(d) In Commission Regulatory Area 2C, halibut harvest on a charter vessel is limited to no more than two halibut per person per calendar day provided that at least one of the harvested halibut has a head-on length of no more than 32 inches (81.3 cm). If a person sport fishing on a charter vessel in Area 2C retains only one halibut in a calendar day, that halibut may be of any length.

* * * * *

4. In § 300.66, remove paragraphs (n), (o), and (p), and revise paragraph (m) to read as follows: 

§ 300.66

* * * * *

(m) Possess halibut onboard a charter vessel in Area 2C that has been mutilated or otherwise disfigured in a manner that prevents the determination of size or number of fish, notwithstanding the requirements of the Annual Management Measure 25(2) and (7) (as promulgated in accordance with § 300.62 and relating to Sport Fishing for Halibut). Filleted halibut may be possessed onboard the charter vessel provided that the entire carcass, with the head and tail connected as a single piece, is retained onboard until all fillets are offloaded.

[FR Doc. E8-21131 Filed 9-8-08; 4:15 pm]

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