[Federal Register Volume 74, Number 175 (Friday, September 11, 2009)]
[Proposed Rules]
[Pages 46714-46732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21960]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0907301200-91202-01]
RIN 0648-AY07


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; 2009-2010 Biennial Specifications and 
Management Measures for Canary Rockfish and Petrale Sole

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

ACTION:  Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY:  NMFS proposes a rule to revise the 2009 management measures 
for petrale sole and to revise the 2010 harvest specifications and 
management measures for petrale sole and canary rockfish taken in the 
U.S. exclusive economic zone (EEZ) off the coasts of Washington, 
Oregon, and California.

DATES: Comments on this proposed rule must be received no later than 5 
p.m., local time on October 13, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-AY07 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 A. 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 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.
    Copies of the Draft Environmental Assessment (DEA) prepared for 
this action is available from the NMFS Northwest Region website at 
http://www.nwr.noaa.gov or from the mailing and street addresses listed 
above.

FOR FURTHER INFORMATION CONTACT: Gretchen Arentzen (Northwest Region, 
NMFS), phone: 206-526-6147, fax: 206-526-6736 and e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed 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 2009 and 2010 ABCs, OYs and HGs for Pacific coast groundfish 
species were established in the final rule for the 2009-2010 groundfish 
harvest specifications and management measures (74 FR 9874, March 6, 
2009). This rule proposes interim measures for two species. For petrale 
sole this action would reduce catches in 2009 by

[[Page 46715]]

implementing more restrictive management measures, lower the 2010 OY 
for petrale sole, and implement more restrictive management measures in 
2010 to keep projected impacts below the new 2010 OY. For canary 
rockfish this action would lower the 2010 OY and implement more 
restrictive 2010 management measures to keep projected impacts below 
the new 2010 OY. These changes are being proposed because the PFMC 
received new stock assessments that indicate the stocks are in worse 
shape than we had thought at the beginning of 2009.
    The Council reviewed a new stock assessment for petrale sole in 
June, considered questions raised by the Stock Assessment and Review 
Panel (STAR Panel) and the Scientific and Statistical Committee (SSC), 
and asked the SSC to review the open issues and report back to the 
Council in September. While there is uncertainty regarding the results 
of the final stock assessment, it is likely that, under any outcome, 
the stock will be overfished at the beginning of 2011 if the entire 
current petrale OYs are taken in 2009 and 2010. In September the 
Council will consider the updated information and make a final 
recommendation for the petrale changes in 2009 and 2010, and make its 
initial recommendations for management for 2011 and beyond. NMFS 
anticipates implementing a final rule for 2009 and 2010 in October. The 
canary rockfish assessment was an update of the prior assessment, 
incorporating revised historic catch data. This assessment concluded 
that the stock is more depleted than the previous assessment had 
indicated. The Council approved the new stock assessment, and the 
assessment authors will develop a rebuilding analysis. The Council will 
use the results of the rebuilding analysis in November to consider 
likely revisions to the rebuilding plan for 2011 and beyond and to 
recommend OY and harvest revisions in 2010. NMFS anticipates 
implementing the final rule for 2010 in December 2009.
    This action is needed to respond to the most recently available 
stock status information during the remainder of 2009 and in 2010, 
while NMFS and the Council complete the stock assessments, revised 
rebuilding plans, EIS, and full rulemaking for the 2011 and 2012 
specifications and management measures for the entire groundfish 
fishery.
    The interim measures being proposed in this rule in combination 
with the existing regulations are designed to prevent the stock status 
of petrale sole from falling below the overfished threshold at the 
beginning of 2011, or to speed the rebuilding of petrale sole if it is 
found to be overfished. These interim measures are also intended to 
facilitate rebuilding and to ease negative impacts on industry from the 
anticipated lower 2011-2012 canary rockfish harvest specifications, and 
more restrictive management measures.
    The Council's policies on setting ABCs, OYs, other harvest 
specifications, and management measures are discussed in the preamble 
to the December 31, 2008, proposed rule (73 FR 80516) for 2009-2010 
harvest specifications and management measures.
    Routine management measures, as described in the preamble to the 
2009-2010 harvest specifications and management measure proposed rule 
(73 FR 80516, December 31, 2008), will continue to be adjusted to 
modify fishing behavior during the fishing year to allow a harvest 
specification to be achieved, or to prevent a harvest specification 
from being exceeded.
    The following preamble discussion is divided into two parts: 
harvest specifications and management measures for petrale sole in 2009 
and 2010; and harvest specifications and management measures for canary 
rockfish in 2010.

Harvest Specifications and Management Measures for Petrale Sole in 
2009-2010

2004 Petrale Sole Stock Assessment

    Petrale sole was last assessed in 2004. The result of that stock 
assessment was the best available science at the time that the 2007-
2008 and the 2009-2010 harvest specifications were developed. For 
additional discussion of the results of the 2004 petrale sole stock 
assessment, see the September 29, 2006 proposed rule (71 FR 57764). The 
2009-2010 ABCs are based on the 2004 stock assessment which used the 
default F 40 percent FMSY proxy and the 2009-2010 OYs are derived using 
the 40-10 harvest policy applied to the ABC for both the northern and 
southern assessment areas. Also an additional 25 percent reduction was 
made in the OY contribution for the southern area due to assessment 
uncertainty, as a precautionary measure. The March 6, 2009 final rule 
(74 FR 9874) established the 2009 and 2010 coastwide petrale sole 
harvest specifications, including the OYs of 2,433 mt in 2009 and 2,393 
mt in 2010.

2009 Petrale Sole Stock Assessment

    A new, full stock assessment for petrale sole was presented to the 
Council at their June 2009 meeting. The draft assessment indicated the 
stock is depleted to 11.6 percent of its unfished biomass. If the Bmsy 
management target remained the same as in the 2004 assessment, at 40 
percent of the unfished biomass using the proxy for BMSY, the 2009 
stock assessment indicates that petrale sole would be overfished in 
2011. However, the stock assessment review panel recommended 
establishing a management target using the biomass that would support 
maximum sustainable yield (BMSY) as determined from the assessment 
(referred to as a directly-estimated Bmsy, as opposed to proxy BMSY). 
This management target was recommended, rather than the standard proxy 
BMSY, given that BMSY is well estimated. The Groundfish FMP allows use 
of a directly-estimated BMSY target and defines the overfished level as 
no less than 50 percent of the directly-estimated BMSY. The draft 
assessment estimates the stock spawning biomass is at 61 percent of the 
directly-estimated BMSY and therefore may not be overfished under a 
directly-estimated BMSY target.
    The Council's Scientific and Statistical Committee (SSC) did not 
recommend the petrale sole assessment for management decision-making at 
their June 2009 meeting, but will review it further during summer 2009, 
and it will be presented for final adoption at the Council's September 
2009 meeting. The SSC will also further explore the use of a 
deterministic BMSY target for the stock when they meet this summer. 
While the petrale sole assessment is not yet adopted for use in making 
management decisions, projections from the draft assessment indicate 
that stock spawning biomass will be driven to a lower level of 
depletion if the entire 2009 and 2010 OYs are taken. If the entire 
current 2009 and 2010 OYs are taken, by 2011 the spawning biomass is 
projected to decline to less than 50 percent of directy-estimated BMSY 
in this case, which is an overfished state even under a deterministic 
BMSY target.

Changes to Petrale Sole Harvest Specifications

    At their June 2009 meeting, the Council identified a point of 
concern under FMP section 6.2.2 and recommended that NMFS take action 
to reduce harvest of petrale sole in 2009 and 2010 in response to the 
preliminary results of the new 2009 stock assessment. The primary 
purpose of this recommendation is to prevent the status of the petrale 
sole stock from falling below the overfished threshold at the start of 
2011.
    In June 2009, the Groundfish Management Team (GMT), an advisory 
body to the Council, prepared a

[[Page 46716]]

preliminary analysis of a range of petrale sole harvest levels for 
Council consideration. This analysis examined how different levels of 
petrale sole harvest in 2009 and 2010 affected the petrale sole stock 
status at the beginning of 2011, under the base case model in the 
preliminary 2009 petrale sole stock assessment. Based on the results of 
the GMTs preliminary analysis, the Council chose a preliminary 
preferred alternative to reduce the existing 2010 petrale sole 
coastwide OY by 1,200 mt. This action proposes to establish a new 2010 
petrale sole coastwide OY of 1,193 mt (Table 2a).
    Though this action does not propose a change in harvest 
specifications for petrale sole in 2009, it does propose changes to 
management measures in order to reduce projected mortality of petrale 
sole in 2009 by approximately 400 mt. Implementing management measures 
that reduce petrale sole catch in 2009, when combined with reductions 
in the petrale sole OY for 2010 (and concurrent changes to management 
measures), results in an increase from 9 percent unfished biomass to 13 
percent unfished biomass and from 48 percent to 68 percent of the 
directy-estimated BMSY under the base case model in the preliminary 
2009 stock assessment.
    Based on the analysis presented above, the Council recommended and 
NMFS is proposing the following changes to petrale sole harvest 
specifications: reducing the 2010 petrale sole coastwide OY of 2,393 mt 
by 1,200 mt, resulting in a new 2010 coastwide petrale sole OY of 1,193 
mt. This proposed change is listed in Table 2a to 50 CFR 660, Subpart 
G.

Changes to Management Measures Affecting Petrale Sole

    Petrale sole is almost exclusively caught in the limited entry non-
whiting commercial trawl fishery. Therefore, proposed changes to 
management measures are only considered in the limited entry non-
whiting trawl fishery. The Council recommended preliminary preferred 
alternative management measures for November-December 2009 and for 
January-December 2010 to reduce projected catch of petrale sole by 
approximately 400 mt in 2009 and to prevent projected mortality of 
petrale sole from exceeding the preliminary preferred 2010 petrale sole 
OY. In order to reduce projected catches of petrale sole in 2009 and 
2010 this proposed rule adjusts management measures that are routinely 
adjusted during the year to respond to updated fishery information, as 
described at Sec.  660.370, and does not impose any new management 
measures. The Council's preliminary preferred alternative management 
measures result in approximately 1,995 mt projected catch of petrale 
sole in 2009 and approximately 1,178 mt projected catch of petrale sole 
in 2010. Changes to management measures include adjusting the seaward 
boundary of the trawl RCA coastwide and reducing petrale sole 
cumulative trip limits and/or sub-limits for all trawl gears coastwide.
    Based on the need to reduce catches in 2009 and 2010 to prevent 
petrale sole stock status from falling below the overfished threshold 
at the beginning of 2011, the Council recommended and NMFS is proposing 
changes to management measures in November-December 2009 and for all of 
2010. For November-December (Period 6) 2009, the Council recommended 
and NMFS is proposing the following: shifting the seaward boundary of 
the trawl RCA to a boundary line approximating the 200-fm (366-m) depth 
contour North of 40 10' N. lat.; and reducing petrale sole cumulative 
trip limits and/or sub-limits to 2,000 lb (907 kg) per two months for 
vessels using all limited entry trawl gear types, coastwide. These 
proposed 2009 changes are shown in 2009 tables 3 (North) and 3 (South). 
For 2010, the Council recommended and NMFS is proposing the following: 
shifting the seaward boundary of the trawl RCA to a boundary line 
approximating the 200-fm (366-m) depth contour from January-April 
(Periods 1 and 2) and September-December (Periods 5 and 6) North of 40 
10' N. lat.; shifting the seaward boundary of the trawl RCA to a 
boundary line approximating the 200-fm (366-m) depth contour from 
January-December South of 40 10' N. lat.; reducing petrale sole 
cumulative trip limits and/or sub-limits to 1,000 lb (454 kg) per two 
months for vessels using all limited entry trawl gear types, coastwide, 
during January-February (Period 1) and November-December (Period 6); 
reducing petrale sole sub-limits to 18,000 lb (8,165 kg) per two months 
for vessels using all limited entry trawl gear types, coastwide, from 
March-October (Periods 2 through 5). These proposed changes to 2010 
trip limits are shown in 2010 Tables 3 (North) and 3 (South).

Harvest Specifications and Management Measures for Canary Rockfish in 
2010

2007 Canary Rockfish Stock Assessment

    Canary rockfish was last assessed in 2007. The results of that 
stock assessment and rebuilding analysis were the basis for the 2009-
2010 harvest specifications, and represented the best available science 
at that time. For additional discussion of the results of the 2007 
canary rockfish stock assessment, see the December 31, 2008 proposed 
rule, 73 FR 80516. The 2009-2010 harvest specifications and revisions 
to the rebuilding plan for canary rockfish were established on March 1, 
2009. The approach used for setting the 2009-2010 harvest 
specifications for canary rockfish was the same as that used for 
setting the 2007-2008 harvest specifications under FMP Amendment 16-4. 
The 2007 stock assessment fundamentally changed the understanding of 
stock productivity. The SSC, therefore, recommended changing the Am. 
16-4 rebuilding plan. In the rebuilding plan, the Council revised the 
target rebuilding year from 2063 to 2021 (which was two years longer 
than F0), but maintained the existing SPR of 88.7%. Nonetheless, the 
adopted OY for 2009 and 2010 of 105 mt was based on a more conservative 
SPR of 92.2%. The March 6, 2009 final rule (74 FR 9874) established the 
2009 and 2010 coastwide canary rockfish harvest specifications, 
including the OYs of 105 mt in 2009 and 2010.

2009 Canary Rockfish Stock Assessment

    An updated stock assessment for canary rockfish was presented to 
the Council at their June 2009 meeting. The stock assessment indicated 
the canary rockfish stock is depleted to 23.7 percent of its unfished 
biomass, compared with a 32.4 percent depletion in 2007. The stock is 
increasing, but based on the new information in the new stock 
assessment, the rebuilding plan will need to be revised, and it is 
anticipated that lower OYs will be required. The Council's SSC 
recommended the canary rockfish assessment for management decision-
making at their June 2009 meeting. At the November Council meeting the 
PFMC will receive the rebuilding analysis for canary rockfish based on 
the 2009 stock assessment, for use in the 2011-2012 specifications 
process. At that time the Council will also decide whether to recommend 
a revision to the 2010 canary rockfish OY in order to smooth the 
transition to the revised rebuilding plan and to facilitate rebuilding.
Changes to 2010 Canary Rockfish OY
    At their June 2009 meeting, the Council recommended that NMFS take 
action to reduce catches of canary rockfish in 2010 in response to the 
results of the new 2009 stock assessment update. The primary purpose of 
taking precautionary measures is to facilitate rebuilding of

[[Page 46717]]

canary rockfish, and to reduce the socioeconomic impacts of a sudden 
reduction in harvest specifications that will likely be implemented in 
2011. Under the FMP, harvest specifications for species subject to 
rebuilding requirements may be modified during the biennium if the 
Council determines they are not adequately conservative to meet 
rebuilding plan goals. FMP Section 5.5.1
    Canary rockfish is currently overfished and subject to a rebuilding 
plan. The results of the new rebuilding analysis, that will be based on 
the new stock assessment update, are scheduled to be presented to the 
Council at their October 31-November 5, 2009, meeting. At that time, 
while the Council is considering revisions to the rebuilding plan for 
2011 and beyond, they will also consider whether changes should be made 
in 2010 for the reasons explained above.
    Based on the need to first consider the new rebuilding analysis for 
2011-2012 OYs, the Council has not chosen a preferred canary rockfish 
OY alternative for 2010. Therefore, a range of OYs between 44 mt and 
105 mt is proposed in Table 2a of this proposed rule. No changes to 
catch apportionment of the new 2010 OY are proposed at this time; 
however, the Council may consider changes to canary rockfish catch 
apportionment at their September or November 2009 meetings. A final 
preferred alternative for canary rockfish OY in 2010 will be considered 
in a supplement to the EA. Changes to 2010 canary rockfish harvest 
specifications would be implemented in a separate final rule, after the 
November 2009 Council meeting. Any revisions are anticipated to be in 
effect on January 1, 2010.

Changes to Management Measures Affecting Canary Rockfish

    Canary rockfish are caught incidentally in almost every sector of 
the Pacific Coast groundfish fishery, North of 34[deg] 27' N. lat. To 
reduce projected catch of canary rockfish below a lower 2010 OY would 
likely require that additional restrictions be placed on the following 
fisheries: limited entry non-whiting trawl; limited entry non-tribal 
whiting trawl; Washington, Oregon, and northern California recreational 
groundfish; and nearshore commercial non-trawl. The types of potential 
management changes include, but are not limited to: expansion of the 
trawl RCA to close areas with high canary bycatch for all or part of 
the year; expansion of the non-trawl RCA to close areas with high 
canary bycatch for all or part of the year; reductions in trip limits 
for co-occurring shelf species in both the LE trawl fishery and in the 
LE fixed gear fishery and open access commercial fishery; reductions in 
trip limits for vessels using selective flatfish trawl gear; reductions 
in recreational fishery season length; closures of recreational 
fisheries in some areas of the coast for a portion of the year; 
reduction in recreational bag limits for rockfish or other co-occurring 
species; a reduction in the bycatch limit for canary rockfish in the LE 
non-tribal whiting fishery; and the non-whiting Exempted Fishing 
Permits (EFPs) may also be restricted or terminated in 2010 to reduce 
their projected catch of canary rockfish (approximately 2.7 mt).
    At their November 2009 meeting where the Council will consider 
potential changes to the 2010 OY, the Council will consider a wide 
range of routine management measure alternatives for reducing projected 
catches of canary rockfish to stay within the new OY. Consideration of 
new rebuilding information and potential changes to routine management 
measures will allow the Council to recommend interim measures that 
would reduce canary rockfish impacts in 2010. A final preferred 
alternative for canary rockfish management measures in 2010 will be 
considered in a supplement to the EA. Changes to management measures to 
reduce projected catch of canary rockfish will be implemented in a 
separate final rule, after the November 2009 Council meeting. These 
management measures are anticipated to be in effect on January 1, 2010.

Classification

    At this time, NMFS has preliminarily determined that the revisions 
to 2009-2010 harvest specifications and management measures for canary 
rockfish and petrale sole proposed in this rule are consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making the final determination, will take into account 
the data, views, and comments received during the comment period.
    A DEA was prepared for the revisions to the 2009-2010 harvest 
specifications and management measures for petrale sole and canary 
rockfish. A copy of the DEA is available online at http://www.nwr.noaa.gov/.
    The Council considered two sets of alternatives for revising the 
2009-2010 harvest specifications and management measures for petrale 
sole and canary rockfish. The first set of alternatives considered more 
restrictive management measures to reduce catch of petrale sole in 2009 
and new harvest specifications for petrale sole in 2010 and management 
measures necessary to keep projected impacts to petrale sole below the 
new 2010 OY. The second set of alternatives considered new harvest 
specifications for canary rockfish in 2010 and a range of management 
measures necessary to keep projected impacts to canary rockfish below 
the alternative 2010 OYs.
    The range of management measure alternatives intended to keep total 
catch of canary at the low end of the ABC/OY alternatives are 
considered here, since these were the alternatives the Council 
evaluated in the 2009 and 2010 rulemaking for their effects on small 
entities.
    NMFS has initially determined that this proposed rule is not 
significant for purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A summary of 
the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    The Small Business Administration has established size criteria for 
all major industry sectors in the US including fish harvesting and fish 
processing businesses. The RFA recognizes and defines three kinds of 
small entities: small businesses, small organizations, and small 
governmental jurisdictions.
    Most permit owners and vessel owners are independent fishermen who 
are owner/operators of their vessel or members of family owned 
businesses or members of small partnerships. As such, they are 
considered to be a small business. Because canary rockfish is taken as 
bycatch in most groundfish fisheries the description of small entities 
associated with the 2009 EIS (73 FR 80516) is applicable. The Council 
estimates that nearly 2,600 small entities harvest groundfish. These 
entities include those that either target groundfish or harvest 
groundfish as bycatch and include limited entry trawlers and fixed 
gear, open access participants, the west coast charterboat fleet, and 
the tribal fleets. Included in this estimate are businesses, probably 
fewer than 30, that should be classified as ``large'' businesses as 
they are affiliates or components of large processing companies. 
Following past practice, the Council classifies the four catcher-
processors that fish and process in the whiting fishery ``large'' 
entities as they are components of large international seafood 
companies. Noting the exceptions above, the Council has classified all 
harvesters in the

[[Page 46718]]

groundfish fishery as ``small businesses.''
    In summary, using Small Business Administration standards, most of 
the estimated 2,600 entities that harvest groundfish are small 
businesses. The exceptions are the catcher vessels who also fish off 
Alaska, some shoreside processors, and all catcher-processors and 
motherships (less than 30) that are affiliated with larger processing 
companies or large international seafood companies.
    Under the no action petrale sole alternative, groundfish revenues 
by the non-whiting trawl fleet would be about $28 million in 2009 and 
in 2010. Under the Council's preferred alternative (P2), the 139 
vessels in this fishery would collectively earn $27 million in 2009 and 
$26 million in 2010. Between 30 and 35 of these vessels would see their 
revenues fall by more than 5 percent.
    By reducing the 2009 petrale sole harvest and the 2010 petrale sole 
OY, we may prevent petrale sole from being in an overfished status in 
2011, or speed the rebuilding of petrale if it is found to be 
overfished. By reducing the 2010 canary OY we may facilitate rebuilding 
of canary rockfish and ease the negative impact on industry from the 
reduced canary rockfish harvest specifications that will likely result 
in 2011-2012 from the new stock assessment and rebuilding analysis.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action.
    NMFS issued Biological Opinions under the ESA on August 10,1990, 
November 26,1991, August 28,1992, September 27,1993, May 14, 1996, and 
December 15, 1999 pertaining to the effects of the Pacific Coast 
groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River 
spring/summer, Snake River fall, upper Columbia River spring, lower 
Columbia River, upper Willamette River, Sacramento River winter, 
Central Valley spring, California coastal), coho salmon (Central 
California coastal, southern Oregon/northern California coastal), chum 
salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake 
River, Ozette Lake), and steelhead (upper, middle and lower Columbia 
River, Snake River Basin, upper Willamette River, central California 
coast, California Central Valley, south/central California, northern 
California, southern California). These biological opinions have 
concluded that implementation of the FMP for the Pacific Coast 
groundfish fishery was not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    NMFS reinitiated a formal section 7 consultation under the ESA in 
2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999, Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000 fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to complete an 
analysis of salmon take in the bottom trawl fishery.
    NMFS prepared a Supplemental Biological Opinion dated March 11, 
2006, which addressed salmon take in both the Pacific whiting midwater 
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental 
Biological Opinion, NMFS concluded that catch rates of salmon in the 
2005 whiting fishery were consistent with expectations considered 
during prior consultations. Chinook bycatch has averaged about 7,300 
fish over the last 15 years and has only occasionally exceeded the 
reinitiation trigger of 11,000 fish.
    Since 1999, annual Chinook bycatch has averaged about 8,450 fish. 
The Chinook ESUs most likely affected by the whiting fishery has 
generally improved in status since the 1999 section 7 consultation. 
Although these species remain at risk, as indicated by their ESA 
listing, NMFS concluded that the higher observed bycatch in 2005 does 
not require a reconsideration of its prior ``no jeopardy'' conclusion 
with respect to the fishery. For the groundfish bottom trawl fishery, 
NMFS concluded that incidental take in the groundfish fisheries is 
within the overall limits articulated in the Incidental Take Statement 
of the 1999 Biological Opinion. The groundfish bottom trawl limit from 
that opinion was 9,000 fish annually. NMFS will continue to monitor and 
collect data to analyze take levels. NMFS also reaffirmed its prior 
determination that implementation of the Groundfish FMP is not likely 
to jeopardize the continued existence of any of the affected ESUs.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) were 
recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) 
were recently relisted as threatened under the ESA. The 1999 biological 
opinion concluded that the bycatch of salmonids in the Pacific whiting 
fishery were almost entirely Chinook salmon, with little or no bycatch 
of coho, chum, sockeye, and steelhead. The Southern Distinct Population 
Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) were also 
recently listed as threatened under the ESA. As a consequence, NMFS has 
reinitiated its Section 7 consultation on the PFMC's Groundfish FMP.
    After reviewing the available information, NMFS concluded that, in 
keeping with Sections 7(a) (2) and 7(d) of the ESA, the proposed action 
would not result in any irreversible or irretrievable commitment of 
resources that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    With regards to marine mammals, sea turtles, and seabirds, we are 
reviewing the available data on fishery interactions and have entered 
into pre-consultation with the United States Fish and Wildlife Service, 
NMFS and other Federal agencies. In additions, we have begun 
discussions with Council staff on the process to address the concerns, 
if any, that arise from our review of the data.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 
U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: September 8, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be 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. and 16 U.S.C. 773 et seq.
    2. Tables 2a and 2c to part 660, subpart G, and footnotes ``/k'' 
and ``/r'' are revised to read as follows:
BILLING CODE 3510-22-S

[[Page 46719]]

[GRAPHIC] [TIFF OMITTED] TP11SE09.000


[[Page 46720]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.001


[[Page 46721]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.002


[[Page 46722]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.003

BILLING CODE 3510-22-C
* * * * *
    /k A petrale sole stock assessment was prepared for 2005. In 2005 
the petrale sole stock was estimated to be at 32 percent of its 
unfished biomass coastwide (34 percent in the northern assessment area 
and 29 percent in the southern assessment area). The 2010 ABC of 2,751 
mt is based on the 2005 assessment with a F40% FMSY proxy. To derive 
the 2010 OY, the 40 10 harvest policy was applied to the ABC for both 
the northern and southern assessment areas. As a precautionary measure, 
an additional 25 percent reduction was made in the OY contribution for 
the southern area due to assessment uncertainty. As another 
precautionary measure, an additional 1,200 mt reduction was made in the 
coastwide OY due to preliminary results of the more pessimistic 2009 
stock assessment. The coastwide OY is 1,193 mt in 2010.
* * * * *
    /r A canary rockfish stock assessment was completed in 2007 and the 
stock was estimated to be at 32.7 percent of its unfished biomass 
coastwide in 2007. The coastwide ABC of 940 mt is based on a FMSY proxy 
of F50%. The OY of 105 mt is based on a rebuilding plan with a target 
year to rebuild of 2021 and a SPR harvest rate of 88.7 percent. An OY 
of 44 mt or 85 mt would be based on a new rebuilding analysis to be 
considered in November 2009.
* * * * *
    3. Beginning November 1, 2009, Tables 3 (North) and 3 (South) to 
part 660, subpart G are revised to read as follows:
BILLING CODE 3510-22-S

[[Page 46723]]

[GRAPHIC] [TIFF OMITTED] TP11SE09.004


[[Page 46724]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.005


[[Page 46725]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.006


[[Page 46726]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.007


[[Page 46727]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.008

* * * * *
    4. Beginning January 1, 2010, Tables 3 (North) and 3 (South) to 
part 660, subpart G are revised to read as follows:

[[Page 46728]]

[GRAPHIC] [TIFF OMITTED] TP11SE09.009


[[Page 46729]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.010


[[Page 46730]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.011


[[Page 46731]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.012


[[Page 46732]]


[GRAPHIC] [TIFF OMITTED] TP11SE09.013

* * * * *
[FR Doc. E9-21960 Filed 9-10-09; 8:45 am]
BILLING CODE 3510-22-C