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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 660
          - [Docket No. 0809121213-9221-02]
          - RIN 0648-AX96

# 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 announces inseason changes to management measures in the commercial Pacific Coast groundfish fisheries. 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. 

# DATES:

 Effective 0001 hours (local time) July 1, 2009. Comments on this final rule must be received no later than 5 p.m., local time on August 5, 2009.

# ADDRESSES:

 You may submit comments, identified by RIN 0648-AX96 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 Arentzen
      - Mail: Barry Thom, Acting Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen.

                        Instructions: All comments received are a part of the public record and will                               ( print page 31875)                            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). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    This final rule is accessible via the Internet at the Office of the                     **Federal Register**                    's Website at                     *http://www.gpoaccess.gov/​fr/​index.html*. Background information and documents are available at the Pacific Fishery Management Council's website 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 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 an inseason action on April 27, 2009 (74 FR 19011). These specifications and management measures are codified in the CFR (50 CFR part 660, subpart G).

Changes to current 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 June 13-18, 2009, meeting in Spokane, Washington. The Council recommended adjustments to current groundfish management measures to respond to updated fishery information and other inseason management needs. The projected impacts to four of the seven overfished species (canary, widow, and darkblotched rockfishes and Pacific ocean perch) will increase slightly with the adjustments to the sablefish cumulative limits and Rockfish Conservation Area (RCA) boundary changes in the limited entry non-whiting trawl fishery north of 40 10.00' N. lat. However, these impacts, when combined with the impacts from all other fisheries, are not projected to exceed the 2009 rebuilding OYs for these species. All other adjustments to non-trawl fishery management measures are not expected to result in greater impacts to overfished species than originally projected through the end of 2009. Estimated mortality of overfished and target species are the result of management measures designed to meet the Pacific Coast Groundfish FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species, while fostering the rebuilding of overfished stocks by remaining within their rebuilding OYs.

## Limited Entry Non-Whiting Trawl Fishery Management Measures

The most recently available fishery information indicates that catches of sablefish are lower than previously projected. Sablefish is a healthy target species that is caught coastwide. Based on the most recent fishery information (dated May 31, 2009), catch projections through the end of 2009 indicate that, absent regulatory changes, only 3,004 mt of the 3,280 mt sablefish allocation will be harvested. The Council considered options for changes to management measures to allow additional access to sablefish in the limited entry non-whiting trawl fishery. Under current regulations, the trawl fishery south of 40° 10.00' N. lat. has greater opportunities for harvest during summer months than the trawl fishery north of 40°10.00' N. lat. due to more favorable weather conditions. Because of these temporal and spatial differences in favorable weather, increases to trip limits and/or RCA adjustments would be most useful for fisheries north of 40° 10.00' N. lat., allowing for additional harvest opportunities during brief times of good weather in the North. 

The Council considered trip limit increases and changes to RCA boundaries to allow additional harvest of this healthy stock, and the potential impacts to overfished species. The modest increases to trip limits, combined with opening the area shoreward of the RCA between the boundary line approximating the 75-fm (137-m) depth contour and the boundary line approximating the 100-fm (183-m) depth contour, result in slightly higher projected impacts to canary rockfish, Pacific Ocean perch, darkblotched rockfish, and widow rockfish than were projected for the limited entry non-whiting trawl fishery at the beginning of the year. However, even with the slight increase in impacts for these overfished species, when combined with the projected impacts from all other fisheries, none of the 2009 OYs for these rebuilding species are projected to be exceeded.

Therefore, the Council recommended and NMFS is implementing the following increases to sablefish cumulative limits north of 40° 10.00' N. lat. on July 1, 2009: increase cumulative trip limits, caught using large and small footrope gear, from “22,000 lb/2 months” in July October to “24,000 lb/ 2 months” and increase limits from “18,000 lb/ 2 months” in November-December to “20,000 lb/ 2 months”; increase cumulative trip limits, caught using selective flatfish trawl gear and multiple gears, from “7,500 lb/ 2 months” in July-October and “5,000 lb/2 months” in November-December to “11,000 lb/ 2 months”.

The Council also recommended and NMFS is implementing the following changes to the trawl RCA boundary lines between Cape Alava (48 10.00' N. lat.) and 40° 10.00' N. lat.: open the fishing area between the boundary line approximating the 75-fm (137-m) depth contour and the boundary line approximating the 100-fm (183-m) depth contour, by shifting the shoreward boundary of the non-trawl RCA boundary from the boundary line approximating the 75-fm (137-m) depth contour to the boundary line approximating the 100-fm (183-m) depth contour in this area, beginning on July 1, 2009.

                    The Council also considered the most recently available fishery information which indicated that catch estimates of petrale sole through the end of the year (2,494 mt) were projected to exceed the 2009 petrale sole OY of 2,433 mt. Petrale sole landing estimates indicate that the higher than expected catch was primarily attributed to the extended winter fishery in early 2009. During the 2009-2010 specifications and management measures the January-February management measures that allow for additional access to winter petrale sole aggregations were extended to run through March. At the beginning of 2009, projected catch was expected to remain below the 2009 petrale sole OY.                           ( print page 31876)                        However catches in January-March accrued more quickly than anticipated. Therefore, the Council considered available options to reduce petrale sole catches inseason to keep projected impacts below the 2009 petrale sole OY of 2,433 mt.                

In addition to inseason management to keep catches of petrale sole below the 2009 OY, the Council considered the preliminary results of the 2009 petrale sole stock assessment that indicates the stock is less healthy than previously thought. The preliminary stock assessment indicates that if the entire 2009 and 2010 OYs are taken, then the stock will start the 2011-2012 biennium in an overfished status, triggering a rebuilding plan and likely very large catch reductions for this very important commercial stock. Therefore, the Council identified a Point of Concern under the Groundfish FMP for petrale sole and NMFS will analyze potential management measures developed by the Groundfish Management Team (GMT), an advisory body to the Council, and issue a proposed rule for 2009-2010 to prevent petrale sole from becoming overfished in 2011. The intention is that, if necessary after consideration of the final stock assessment, public comment, and Council advice, the final rule will put in place measures to reduce petrale sole catch for November 1, 2009 through the remainder of the year and for 2010.

To allow for additional management flexibility for a species with an identified Point of Concern, the Council recommended reductions in the petrale sole trip limits to prevent exceeding the 2009 petrale sole OY, for period 5 (September-October), rather than for period 6 (November-December), as the GMT had initially recommended.

Therefore, the Council recommended and NMFS is implementing the following decreases to petrale sole cumulative limits coastwide during period 5 (September-October): decrease cumulative trip limits, caught using large and small footrope gear north of 40° 10.00' N. lat., from “110,000 lb (49,895 kg) per 2 months, no more than 30,000 lb (13,608 kg) per 2 months of which may be petrale sole” to “110,000 lb (49,895 kg) per 2 months, no more than 5,000 lb (2,268 kg) per 2 months of which may be petrale sole"; decrease cumulative trip limits, caught using selective flatfish trawl gears and multiple gears north of 40° 10.00' N. lat., from “90,000 lb (40,823 kg) per 2 months, no more than 18,000 lb (8,165 kg) per 2 months of which may be petrale sole” to “90,000 lb (40,823 kg) per 2 months, no more than 5,000 lb (2,268 kg) per 2 months of which may be petrale sole”; and decrease cumulative trip limits, caught using all trawl gears south of 40° 10.00' N. lat., from “110,000 lb (49,895 kg) per 2 months, no more than 30,000 lb (13,608 kg) per 2 months of which may be petrale sole” to “110,000 lb (49,895 kg) per 2 months, no more than 5,000 lb (2,268 kg) per 2 months of which may be petrale sole”.

## Limited Entry Fixed Gear and Open Access Fishery Management Measures

### California Scorpionfish (Scorpaena guttata)

California scorpionfish is a healthy stock that occurs primarily South of 36 N. lat. and is fished South of Point Conception (34° 27' N. lat.). The stock was last assessed in 2005, and is estimated to be above 40 percent of the unfished biomass. Total mortality of California scorpionfish has been well below the harvest specifications in recent years, and in 2007 only 68 mt of the 2007 California scoprionfish OY of 175 mt was harvested (39 percent of the OY). The Council considered increases to trip limits to allow additional harvest of this healthy stock, and the potential impacts to overfished species. Harvest of California scorpionfish occurs in shallow nearshore waters primarily south of 34° 27.00' N. lat. and scorpionfish are caught in conjunction with other California State managed nearshore species. Nearshore fishery information indicates that there are relatively few interactions with overfished species at these depths and latitudes. Therefore, no impacts to overfished species are expected.

Therefore, the Council recommended and NMFS is implementing trip limit changes for the limited entry fixed gear and open access fishery South of 40° 10.00' N. lat. that increase California scorpionfish trip limits from 800 lb (363 kg) per 2 months in July-October and from 600 lb (272 kg) per 2 months in November-December to 1,200 lb (544 kg) per 2 months from July-December.

### Minor Nearshore and Black Rockfish Trip Limits North of 40° 10.00' N. lat.

Black rockfish is a nearshore rockfish species that was assessed in 2007 as two separate stocks, and therefore the harvest specifications are divided at the Washington/Oregon border (46° 16.00' N. lat.). The 2009 black rockfish OY for the area south of 46° 16.00' N. lat. is 1,000 mt. Oregon and California work cooperatively to manage their nearshore fisheries (both commercial and recreational) to approach but not exceed the black rockfish OY in this area. The 2009 black rockfish commercial allocation for California is 185 mt. At their June meeting, the Council considered the most recent projected impacts to black rockfish in the commercial non-trawl fisheries off the California coast through the rest of the year. These estimates indicated that under the current trip limit structure, catch was estimated to be only 74 mt. However, recent landings information indicates that trip limits for minor nearshore rockfish and black rockfish were not being attained south of 40° 10.00' N. lat.; and therefore increases in trip limits were only considered for the area between 42° N. lat. and 40° 10.00' N. lat. 

The Council considered increases to black rockfish trip limits to allow additional harvest of this healthy stock, and the potential impacts to overfished species. An increase in trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that a much larger portion of the black rockfish allocation is harvested. The Council also considered the potential for increased impacts to blue rockfish if the trip limit were increased leaving the current minor nearshore rockfish and black rockfish trip limit structure as “no more than 1,200 lb (544 kg) may be species other than black or blue rockfish”. There was a concern that increasing the overall limit, while leaving the trip limit structure to exclude both black and blue rockfish from the sub-limit, would increase blue rockfish catch and could potentially exceed the allocation, and in turn the OY for blue rockfish. The Council, however, received new information that the 20-fm (37-m) depth contour restriction has reduced nearshore fishery interactions with blue rockfish.

Therefore, the Council recommended and NMFS is implementing trip limit changes for minor nearshore and black rockfish in the limited entry fixed gear and open access fishery between 42° N. lat. and 40° 10.00' N. lat.: from “6,000 lb (2,722 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black or blue rockfish” to “7,000 lb (3,175 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black rockfish” on July 1. 

### Limited Entry Fixed Gear Sablefish Daily Trip Limit Fishery

                    Over the past several years, the amount of sablefish harvested in the limited entry fixed gear sablefish daily trip limit (DTL) fishery north of 36° N. lat. has been lower than their sablefish allocation. The Council implemented a                           ( print page 31877)                        precautionary adjustment that moderately raised the daily, weekly and bi-monthly trip limits for sablefish in this fishery on May 1, 2009 (74 FR 19011). At their June 13-18, 2009 meeting the Council considered industry requests to further increase trip limits in this fishery. The best and most recently available fishery information indicates that, even with the May 1, 2009 inseason adjustments, the entire sablefish allocation would not be harvested through the end of the year. To provide additional harvest opportunities for this healthy stock, the Council considered a modest increase to the two-month cumulative trip limit for sablefish in this fishery and the potential impacts on overall catch levels and overfished species. Trip limits in this fishery have been fairly stable over time; therefore some uncertainty surrounds how changes in trip limits will affect effort and landings. The Council also considered that the overall number of participants is restricted to vessels registered to a limited entry permit with the necessary gear and species endorsements. The effects of a small increase in trip limits in this fishery can be monitored, and any additional adjustments can be made to approach, but not exceed, the sablefish allocation for the limited entry fixed gear sablefish DTL fishery. This increase in trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that the entire sablefish allocation is harvested.                

Therefore, the Council recommended and NMFS is implementing trip limit changes for the limited entry fixed gear fishery north of 36 N. lat. that increase sablefish DTL fishery limits from “500 lb (227 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 5,500 lb (2,495 kg) per 2 months” to “500 lb (227 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 6,000 lb (2,722 kg) per 2 months” beginning in period 4, on July 1.

### Open Access Sablefish DTL Fishery 

The most recent catch information from 2009 fisheries (May 31, 2009) indicates that catches of sablefish north of 36° N. lat. are lower than previously anticipated. Without any changes to current management measures, catches in this fishery through the end of the year are projected to be below the 2009 sablefish allocation. To provide additional harvest opportunities for this healthy stock, the Council considered increasing trip limits for sablefish in this fishery and the potential impacts on overall sablefish and overfished species catch levels. The Council considered modest increases to the weekly and bi-monthly limits for sablefish in the open access fishery in order to approach, but not exceed, the 2009 sablefish OY. This modest increase in trip limits is not anticipated to increase projected impacts to overfished species, because projected impacts to overfished species are calculated assuming that the entire sablefish allocation is harvested.

Therefore, the Council recommended and NMFS is implementing an increase for the open access fishery trip limits north of 36 N. lat. that changes sablefish limits from “300 lb (136 kg) per day, or 1 landing per week of up to 800 lb (363 kg), not to exceed 2,400 lb (1,089 kg) per 2 months” to “300 lb (136 kg) per day, or 1 landing per week of up to 950 lb (431 kg), not to exceed 2,750 lb (1,247 kg) per 2 months” beginning in period 4, on July 1.

In addition to the revisions to Tables 3 (North), 3 (South), 4 (North), 4 (South), 5 (North), and 5 (South) to part 660, subpart G described above, non-substantive technical edits are made to the RCA description in lines 1-6 and in footnotes 5 and 6 of these tables to clarify that the boundary lines of the RCA are described by latitude and longitude coordinates that, when connected in the order listed, create a line that approximates the depth contour. In most cases, the RCA is not defined by the depth contour itself. These technical edits were made at the request of NMFS Enforcement agents. 

## Classification

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) 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 July 1, 2009, or as quickly as possible thereafter.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its June 13-18, 2009, meeting in Spokane, WA. The Council recommended that these changes be implemented on or as close as possible to July 1, 2009. 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. These adjustments to management measures must be implemented in a timely manner to allow fishermen an opportunity to harvest higher limits in 2009 for sablefish, black rockfish, chilipepper rockfish and California scorpionfish beginning July 1, 2009, and to prevent exceeding the 2009 petrale sole OY by reducing cumulative limits in September-October. The reduction in cumulative limits for petrale sole in September-October will give additional management flexibility for petrale sole in the winter of 2009 and beyond. The restructuring of the minor nearshore and black rockfish trip limit must be in place by July 1 or else a mid-period change would cause confusion for the fishermen and problems for enforcement.

                    Modifications to the trawl RCA and increases to cumulative limits for: sablefish in the limited entry trawl fishery, the limited entry fixed gear fishery, and the open access fishery; chilipepper in the limited entry trawl fishery; and California scorpionfish and black rockfish in the limited entry fixed gear fishery and the open access fishery, are necessary to relieve a restriction by allowing fishermen increased opportunities to harvest available healthy stocks while staying within the OYs for these species. These changes must be implemented in a timely manner, by July 1, 2009, so that fishermen are allowed increased opportunities to harvest available healthy stocks and meet the objective of                           ( print page 31878)                        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 by July 1 allows additional harvest in fisheries that are important to coastal communities.                

Changes to petrale sole trip limits in the limited entry trawl fishery must be implemented in a timely manner by September 1, 2009, to prevent the total mortality of petrale sole from exceeding the 2009 OY. Failure to make this change to the petrale sole OY by September 1, 2009 could reduce management flexibility in November-December 2009 and beyond by allowing too much harvest during the year and forcing potentially much larger reductions in cumulative limits during winter months. 

Allowing the current management measures to remain in place could jeopardize managers' ability to provide for year-round harvest opportunities for healthy stocks. Delaying these changes would keep management measures in place that are not based on the best available data which could deny fishermen access to available harvest. Such delay would 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, or staying within OYs for petrale sole.

# List of Subjects in 50 CFR Part 660

      - Fisheries
      - Fishing
      - Indian Fisheries

Dated: June 29, 2009.

Alan D. Risenhoover,

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 USC 773*et seq.*

2. Tables 3 (North), 3 (South), 4 (North), 4 (South), 5 (North), and 5 (South) to part 660, subpart G are revised to read as follows: 
      ( print page 31879)          ( print page 31880)          ( print page 31881)          ( print page 31882)          ( print page 31883)          ( print page 31884)          ( print page 31885)          ( print page 31886)          ( print page 31887)          ( print page 31888)          ( print page 31889)          ( print page 31890)    

BILLING CODE 3510-22-S

[FR Doc. E9-15840 Filed 6-30-09; 4:15 pm]

BILLING CODE 3510-22-C