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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 090428799-9802-01]
          - RIN 0648-BA28

# 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 makes inseason adjustments to commercial fishery management measures for several groundfish species taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California. 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 and to prevent exceeding 2010 optimum yields.

# DATES:

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

# ADDRESSES:

You may submit comments, identified by RIN 0648-BA28, 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 Hanshew.                    
      -  Mail:                          William W. Stelle, Jr., 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), 206-526-6147,                         *fax:*                         206-526-6736,                         *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 (the Council or PFMC) Web site at                     *http://www.pcouncil.org/​.*

## Background

On December 31, 2008, NMFS published a proposed rule to implement the 2009-2010 specifications and management measures for the Pacific Coast groundfish fishery (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), February 26, 2010 (75 FR 8820), May 4, 2010 (75 FR 23620), July 1, 2010 (75 FR 38030), July 16, 2010 (75 FR 41386), and August 23, 2010 (75 FR 51684). 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). NMFS issued a final rule in response to a duly issued court order on July 8, 2010 (75 FR 39178). These specifications and management measures are at 50 CFR part 660, subpart G.

Changes to the 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 September 10-16, 2010, meeting in Boise, Idaho. The Council recommended adjusting the groundfish management measures to respond to updated fishery information and other inseason management needs. These changes include increases to bi-monthly cumulative limits in the limited entry trawl commercial fisheries off Washington, Oregon, and California and reductions to daily trip limits (DTL) for sablefish in the limited entry fixed gear and open access commercial fisheries south of 36° N. lat. The increases to cumulative limits are intended to allow additional harvest opportunities for species for which catch estimates through the end of the year are lower than anticipated. The changes to sablefish DTL limits are intended to prevent higher than anticipated sablefish catches from exceeding the 2010 sablefish optimum yield (OY).

## Limited Entry Non-Whiting Trawl Fishery

At their September 2010 meeting, the Council received new data and analyses on the catch of groundfish in the limited entry trawl fishery.

Catches of several trawl target species were tracking behind 2010 projections made at the Council's June 2010 meeting, or were projected to be below the 2010 OYs if no adjustments to cumulative limits are made. At their September meeting, the Council considered the most recently available data from the Pacific Fishery Information Network (PacFIN). These data, dated August 18, 2010, indicated the total catch projections through the end of the year for sablefish, longspine thornyheads, shortspine thornyheads, Dover sole, arrowtooth flounder, slope rockfish and other flatfish were lower than anticipated.

The Council considered modest increases to bi-monthly cumulative limits for these species for which the catch is projected to be lower than anticipated in order to meet the Pacific Coast Groundfish FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species. A two-month limit can be raised in the middle of the period, therefore, this increase would become effective during the two-month cumulative limit, on October 1.

                    Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to cumulative limits in the limited entry non-whiting trawl fishery on October 1, 2010 through the end of the year: increase the sablefish trip limits taken with large and small footrope gear North of 40°10′ N. lat. and for all trawl gears South of 40°10′ N. lat.                           ( print page 61103)                        from “21,000 lb per 2 months” to “24,000 lb per 2 months”, and taken with selective flatfish trawl gear North of 40°10′ N. lat. from “9,000 lb per 2 months” to “10,000 lb per 2 months”; increase the longspine thornyhead trip limits taken with large and small footrope gear from “24,000 lb per 2 months” to “26,000 lb per 2 months” coastwide; increase the shortspine thornyhead trip limits taken with large and small footrope gear from “18,000 lb per 2 months” to “20,000 lb per 2 months” coastwide,; increase the Dover sole trip limits taken with large and small footrope gear North of 40°10′ N. lat. and for all trawl gears South of 40°10′ N. lat. from “100,000 lb per 2 months” to “110,000 lb per 2 months”, and taken with selective flatfish trawl gears from “65,000 lb per 2 months” to “70,000 lb per 2 months” in the north, beginning on October 1 through the end of the year; increase the arrowtooth flounder trip limits taken with large and small footrope gear North of 40°10′ N. lat. from “150,000 lb per 2 months” to “180,000 lb per 2 months” and taken with selective flatfish trawl gear from “90,000 lb per 2 months” to “100,000 lb per 2 months”; increase the arrowtooth flounder trip limits taken with all trawl gears South of 40°10′ N. lat. from “10,000 lb per 2 months” to “12,000 lb per 2 months”; increase the other flatfish trip limits taken with large and small footrope gear North of 40°10′ N. lat. and all trawl gears South of 40°10′ N. lat. from “100,000 lb per 2 months” to “110,000 lb per 2 months”, and taken with selective flatfish trawl gear in the north from “60,000 lb per 2 months” to “70,000 lb per 2 months”; increase the slope rockfish trip limits in the north from “2,000 lb per 2 months” to “4,000 lb per 2 months”. This rule also makes changes to the trip limits for vessels that use multiple types of bottom trawl gears, simultaneously or successively, during a single cumulative limit period. Vessels that use multiple bottom trawl gears are subject to the most restrictive limit, and in most cases this is the trip limit for vessels using selective flatfish trawl gear. Therefore, if trip limits for vessels using selective flatfish trawl gear are modified, the trip limits for vessels using multiple trawl gears will also be modified accordingly.                

## Sablefish Daily Trip Limit Fishery South of 36° N. Lat.

Catch of sablefish in the limited entry fixed gear and open access daily trip limit (DTL) fisheries south of 36° N. lat. has been higher than anticipated. Based on the most recent fishery information, if no action is taken and catch remains higher than expected, landings of sablefish through the end of the year would be 1,825 mt. This level of catch would exceed the 2010 sablefish OY for the area south of 36° N. lat. of 1,258 mt by approximately 45 percent. The Council considered several combinations of trip limit reductions in the limited entry fixed gear and open access sablefish DTL fisheries south of 36° N. lat. to allow the fisheries to remain open through the remainder of 2010, while preventing the 2010 sablefish OY for the area south of 36° N. lat. from being exceeded.

Sablefish landings from March through July 2010 were much higher in these fisheries than during that same period in 2009, which had the same trip limits and RCA structure. Therefore, it is most likely that increased participation, particularly new entrants in the open access sector of the non-trawl commercial fishery, has been the primary cause of the higher than expected catches. Therefore, the Council considered larger restrictions to trip limits in the open access sablefish DTL fishery. Modest decreases were also considered for the limited entry fixed gear fishery, to further reduce projected impacts and to prevent the open access fishery from having to be closed entirely to prevent exceeding the 2010 sablefish OY. With these trip limit reductions, projected impacts are not anticipated to exceed 2010 sablefish OY for the area south of 36° N. lat. of 1,258 mt.

Projected impacts to overfished species in the limited entry fixed gear and open access fisheries are calculated assuming the entire sablefish OY is harvested. Therefore, decreases to trip limits to prevent exceeding the 2010 sablefish OY do not result in changes to anticipated impacts to co-occurring overfished groundfish species.

Based on the considerations outlined above, the Council recommended and NMFS is implementing a decrease in the limited entry fixed gear sablefish DTL fishery cumulative limits south of 36° N. lat. from “3,000 lb per week” to “2,800 lb per week” beginning on October 1, 2010 through the end of the year.

Based on the considerations outlined above, the Council recommended and NMFS is implementing restrictions to the open access sablefish DTL fishery trip limits South of 36° N. lat. from “400 lb per day, or 1 landing per week of up to 2,500 lb” to “800 lb per week, not to exceed 1,600 lb per month” beginning on October 1, 2010 through the end of the year.

## Classification

This rule makes routine inseason adjustments to groundfish fishery management measures based on the best available information and is taken pursuant to the regulations implementing the Pacific Coast Groundfish FMP.

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

                    These inseason adjustments 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. 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)(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 as quickly as possible.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its September 10-16, 2010, meeting in Boise, Idaho. The Council recommended that these changes be implemented by October 1, 2010 or as quickly as possible. 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.

                    The adjustments to management measures in the limited entry trawl fishery must be implemented in a timely manner to allow fishermen an opportunity to achieve the 2010 OYs specified for limited entry trawl for sablefish, longspine and shortspine thornyheads, Dover sole, arrowtooth flounder, other flatfish, and slope                           ( print page 61104)                        rockfish. Increases are necessary to relieve a restriction by allowing fishermen increased opportunities to harvest available healthy stocks while staying within the OYs for all species. These changes must be implemented in a timely manner, as quickly as possible, 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 quickly allows additional harvest in fisheries that are important to coastal communities.                

Restrictions to cumulative limits in the limited entry fixed gear and open access sablefish DTL fishery are needed to prevent the 2010 sablefish OY in the area South of 36° N. lat. from being exceeded and prevent premature closure of fisheries that take sablefish. These changes must be implemented in a timely manner by October 1, 2010. Failure to implement trip limit restrictions by October 1, 2010 would risk premature closure of fisheries that are important to coastal communities, which would fail to meet the objectives of the Pacific Coast Groundfish FMP to allow for year round fishing opportunities to provide community stability.

These revisions are needed to keep the harvest of groundfish species within the harvest levels projected for 2010, while allowing fishermen access to healthy stocks. Without these measures in place, the fisheries could risk exceeding harvest levels, causing early and unanticipated fishery closures and economic harm to fishing communities. Delaying these changes would keep management measures in place that are not based on the best available data and that could lead to early closures of the fishery if harvest of groundfish exceeds levels projected for 2010. Such delay 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.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian Fisheries

Dated: September 28, 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 continues to read as follows: 

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

2. Tables 3 (North) and 3 (South), Table 4 (South), and Table 5 (South) to part 660, subpart G, are revised to read as follows: 
      ( print page 61105)          ( print page 61106)          ( print page 61107)          ( print page 61108)          ( print page 61109)          ( print page 61110)          ( print page 61111)          ( print page 61112)          ( print page 61113)    

BILLING CODE 3510-22-P

[FR Doc. 2010-24821 Filed 10-1-10; 8:45 am]

BILLING CODE 3510-22-C