69 FR 71 pgs. 19347-19358 - Fisheries Off West Coast States and in the Western Pacific;Pacific Coast Groundfish Fishery; Amendment 16-2
Type: RULEVolume: 69Number: 71Pages: 19347 - 19358
Docket number: [Docket No. 031125288-4102-02; I.D. 110303A]
FR document: [FR Doc. 04-8382 Filed 4-12-04; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 031125288-4102-02; I.D. 110303A]
RIN 0648-AR35
Fisheries Off West Coast States and in the Western Pacific;Pacific Coast Groundfish Fishery; Amendment 16-2
AGENCY:
National Marine Fisheries Service, NationalOceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Final rule.
SUMMARY:
NMFS issues this final rule to implementAmendment 16-2 to the Pacific Coast Groundfish Fishery ManagementPlan (FMP). Amendment 16-2 amended the FMP to include overfishedspecies rebuilding plans for lingcod, canary rockfish, darkblotchedrockfish, and Pacific ocean perch (POP) within the FMP. This final ruleadds two rebuilding parameters to the Code of Federal Regulations (CFR) foreach overfished stock, the target year for rebuilding and the harvestcontrol rule.
Amendment 16-2 addressed the requirements of theMagnuson-Stevens Fishery Conservation and Management Act (Magnuson-StevensAct) to protect and rebuild overfished species managed under a Federal FMP.Amendment 16-2 also responded to a Court order, in which NMFS wasordered to provide Pacific Coast groundfish rebuilding plans as FMPs, FMPamendments, or regulations, per the Magnuson-Stevens Act.
DATES:
Effective May 13, 2004.
ADDRESSES:
Copies of Amendment 16-2 and the finalenvironmental impact statement/regulatory impact review/initial regulatoryflexibility analysis (FEIS/RIR/IRFA) are available from Donald McIsaac,Executive Director, Pacific Fishery Management Council (Council), 7700 NEAmbassador Place, Portland, OR 97220, phone: 503-820-2280.These documents are also available online at the Council's website at http://www.pcouncil.org .
FOR FURTHER INFORMATION CONTACT:
Becky Renko(Northwest Region, NMFS), phone: 206-526-6150; fax:206-526-6736 or; e-mail: becky.renko@noaa.gov .
SUPPLEMENTARY INFORMATION:
Electronic Access
The proposed and final rules for this action are accessible via theInternet at the Office of the Federal Register 's website at http://www.gpoaccess.gov/fr/index.html . Backgroundinformation and documents are available at the NMFS Northwest Regionwebsite at http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm andat the Council's website at http://www.pcouncil.org .
Background
Amendment 16-2 revised the FMP to include overfished speciesrebuilding plans for lingcod, canary rockfish, darkblotched rockfish, andPOP. This final rule implements Amendment 16-2 by adding tworebuilding parameters, the target year in which the stock would be rebuiltunder the adopted rebuilding plan (T TARGET ) and the harvestcontrol rule, to the CFR at 50 CFR 660.370 for each overfished stock.
Amendment 16-2 addressed the requirements of the Magnuson-StevensAct) to protect and rebuild overfished species managed under a Federal FMP.Amendment 16-2 also responded to a Court order in NaturalResources Defense Council, Inc. v. Evans , 168 F. Supp. 2d1149 (N.D. Cal 2001,), in which NMFS was ordered to provide Pacific Coastgroundfish rebuilding plans as FMPs, FMP amendments, or regulations, perthe Magnuson-Stevens Act.
A Notice of Availability for Amendment 16-2 was published onNovember 7, 2003 (68 FR 63053). NMFS requested comments on the amendmentunder the Magnuson-Stevens Act FMP amendment review provisions for a60-day comment period, ending January 6, 2004. A proposed rule waspublished on December 5, 2003 (68 FR 67998), requesting public commentthrough January 5, 2004. During the Amendment 16-2 and proposed rulecomment period, NMFS received four letters of comment. These letters areaddressed later in the preamble to this final rule. The preamble to theproposed rule for this action provides additional background information onthe fishery and on this final rule. Further detail on Amendment 16-2also appears in the FEIS/RIR/IRFA for this action which was prepared by theCouncil.
After consideration of the public comments received on the amendment,NMFS approved Amendment 16-2 on January 30, 2004. As required by thestandards established by Amendment 16-1, the rebuilding plans adoptedunder Amendment 16-2 for lingcod, canary rockfish, darkblotchedrockfish, and POP specified the following rebuilding parameters in the FMP:unfished biomass (B 0 ) and target biomass (B MSY ), the year the stock would be rebuilt in the absence offishing (T MIN ), the year the stock would be rebuilt if themaximum time period permissible under national standard guidelines wereapplied (T MAX ), and the target year in which the stock wouldbe rebuilt under the adopted rebuilding plan (T Target ).Other information relevant to rebuilding was also included. The estimatedrebuilding parameters will serve as management benchmarks in the FMP andthe FMP will not be amended if the values for these parameters change afternew stock assessments and rebuilding analyses are completed, as is likelyto happen.
Amendment 16-1 specified two rebuilding parameters, TTARGET andthe harvest control rule for the rebuilding period, that are to be codifiedin Federal regulations for each individual species rebuilding plan. Thisfinal rule adds these rebuilding parameters to the CFR at 50 CFR 660.370for lingcod, canary rockfish, darkblotched rockfish, and POP. T TARGET is the year in which there is a 50-percentlikelihood that the stock will have been rebuilt with a given mortalityrate. The harvest control rule expresses a given fishing mortality ratethat is to be used over the course of rebuilding. These parameters will beused to establish the optimum yields (OYs-harvest specifications) forspecies with rebuilding plans. Conservation and management goals definedin the FMP require the Council and NMFS to manage to the appropriate OY foreach species or species groups, including those OYs established forrebuilding overfished species. The OYs and management measures will be seton an annual or biennial basis, and will address the fisheries as a whole.Regulations implemented through the harvest specifications and managementmeasures are based on the most recently available scientific informationand are intended to address all of the fisheries that take groundfish andto keep the total catch of groundfish, including overfished species, withintheir respective OYs. The FMP addresses how the fisheries as a whole areto be managed, whereas rebuilding plans are species-specific and define theparameters that govern the rebuilding of a particular species.
If, after a new stock assessment, the Council and NMFS conclude thateither or both of the parameters defined in regulation should be revised,the revision will be implemented through the Federal rulemaking process,and the updated values codified in the Federal regulations. NMFS believesthat the FMP with the newly added rebuilding plans will be sufficient"to end overfishing in the fishery and to rebuild affected stocks offish" (16 U.S.C. 1854(e)(3)(A).
Amendment 16-2 will be followed by Amendment 16-3. A noticeof intent to prepare an Environmental Impact Statement (EIS) was publishedon September 12, 2003 (68 FR 53712) for Amendment 16-3. If approved,Amendment 16-3 will contain rebuilding plans for bocaccio, cowcod,widow rockfish and yelloweye rockfish. The Council is scheduled to takefinal action on the Amendment 16-3 rebuilding plans at its April5-9, 2004 meeting. The notice of availability of the Draft EIS isscheduled for publication in June 2004.
Comments and Responses
NMFS received four letters of comment on the proposed rule to implementAmendment 16-2: three letters were received from environmentaladvocacy organizations, and one letter was received from the U.S.Department of the Interior. These comments are addressed here:
Comment 1: The proposed target dates for rebuildingAmendment 16-2 species are inconsistent with the Magnuson-Stevens Actbecause the target rebuilding dates are not as short as possible.
Response: NMFS believes that the specified rebuildingtime periods for the four overfished species are consistent with the legalrequirements of the Magnuson-Stevens Act and with the national standardguidelines. The Magnuson-Stevens Act does not state that rebuilding mustbe completed in the shortest time possible, rather it requires the time forrebuilding to be as short as possible, taking into account certain factors.The Magnuson-Stevens Act, section 304 (e)(4)(A), and the national standardguidelines at 50 CFR 600.310 (e)(4)(A) recognize the following factors thatenter into the specification of a time period for rebuilding: the statusand biology of the stock or stock complex; interactions between stocks orstock complexes and the marine ecosystem; the needs of fishing communities;recommendations of international organizations in which the U.S. is aparticipant; and management measures under an international agreement inwhich the U.S. participates.
According to the national standard guidelines at 50 CFR600.310(e)(ii)(B)( 2 ), if the year the stock would be rebuiltin the absence of fishing (T MIN )is 10 years or less, then thespecified time period for rebuilding may be adjusted upward to the extentwarranted by the needs of fishing communities and recommendations ofinternational organizations in which the U.S. is a participant. However,the rebuilding period may not exceed 10 years unless internationalagreements, which the United States is a party to, dictate otherwise.
Of the four overfished stocks affected by this rulemaking, lingcod wasthe only species in which T MIN was estimated to be 10 yearsor less. As permitted by the Magnuson-Stevens Act and the nationalstandard guidelines, the needs of the fishing community were taken intoconsideration when the rebuilding period for lingcod was established thatwould rebuild the stock by 2009. It should be noted, that the differencebetween the T MIN rebuilding year of 2007 (the MaximumConservation Alternative) and the rebuilding year of 2009 under Council'spreferred alternative was 2 years.
Lingcod are caught in wide range of commercial and recreationalfisheries both on the continental shelf and nearshore areas. To achieverebuilding by T MIN , management measures would need to bedesigned to prohibit the catch of lingcod until the stock was rebuilt. Anyfishery in which bycatch occurs would need to be curtailed or eliminated tocompletely prevent bycatch of lingcod. The Maximum Conservation Alternativewhich would have achieved rebuilding by T MIN , was expected toresult in a significant adverse socioeconomic impact due to the reductionin profits, personal income, and employment. NMFS believes that choosingthe Council-preferred alternative, which results in a target year forrebuilding of 2009, was a reasonable accommodation to meet the needs of thefishing communities.
According to the national standard guidelines at 50 CFR600.310(e)(ii)(B)( 3 ), if T MIN is 10 years orgreater, "then the specified time period for rebuilding T TARGET may be adjusted upward to the extent warranted by theneeds of fishing communities and recommendations by internationalorganizations in which the U.S. participates, except that no such upwardadjustment can exceed the rebuilding period calculated in the absence offishing mortality, plus one mean generation time or equivalent period basedon the species' life-history characteristics (T MAX )."All of the rebuilding periods for canary rockfish, darkblotched rockfishand POP are less than T MAX .
The rebuilding probabilities (P MAX , which are estimatedprobabilities of rebuilding the stock by T MAX ) for canaryrockfish, darkblotched rockfish and POP range between 60 percent and 80percent. This represents a better than 50 percent likelihood that each ofthese stocks will be rebuilt (reach the B MSY biomass) by T MAX , while allowing sufficient access to overfished stocks, sothat healthy groundfish stocks that co-occur with overfished species can beharvested. Canary rockfish are relatively unproductive but occur in awide range of fisheries. The Council chose a T TARGET closerto T MAX (reflected in the relatively lower 60-percentrebuilding probability) in order to allow some bycatch in all of thevarious fisheries. The EIS for this amendment has further informationregarding the reasons for the adopted rebuilding periods.
Comment 2: Rebuilding target dates for lingcod andcanary rockfish are based upon a 60 percent probability of achievingrebuilding within T MAX . This low probability results intarget rebuilding dates that are close to T MAX , which leaveslittle room for uncertainties in stock status, recruitment success,accounting and management of fishing mortality and other factors. Therebuilding probabilities for Amendment 16-2 species should be closerto those suggested by the Technical Guidance on the Use of thePrecautionary Approaches to Implementing National Standard 1 of theMagnuson-Stevens Fishery Conservation and Management Act (TechnicalGuidance).
Response: As explained above in the response to comment1, if T MIN is 10 years or greater, the national standardguidelines at 50 CFR 600.310(e)(ii)(B)( 3 ), allow T TARGET to be adjusted upward to the extent warranted by theneeds of fishing communities and recommendations by internationalorganizations in which the U.S. participates, except that no such upwardadjustment can exceed T MAX . The Technical Guidancerecommends that T TARGET be set no higher than the midpointbetween T MIN and T MAX .
Adopting the midpoint as a binding criterion in all cases would not beconsistent with the Magnuson-Stevens Act because it would not allow thefactors in the Act at section 304(e)(4) and the national standardguidelines at 50 CFR 600.310(e)(4)(ii), which include the needs of fishingcommunities, to be taken into account. The Technical Guidance is not abinding regulation that must be followed; the Technical Guidance itselfacknowledges that it deals only with biological issues, and not withsocioeconomic issues, which fishery management councils must consider, perthe Magnuson-Stevens Act.
Canary rockfish and lingcod are caught in a wide range of commercial andrecreational fisheries both on the continental shelf and nearshore areas.The Council recognized the socioeconomic importance of the fisheries forco-occurring species to harvesters and communities and recommended targetrebuilding periods that would allow the harvest of the healthy stocks whileproviding a strong likelihood the overfished stocks will recover within thetargeted time period. NMFS agrees with the Council's recommendedrebuilding goals.
Comment 3: The groundfish fishery suffers from a varietyof factors that create uncertainty in the rebuilding process. Whileestimates of catch have improved over time for the commercial fishery, therecreational fishery catch estimates remain problematic. Inadequateenforcement means some catch is never recorded. A standardized reportingmethodology to assess the amount and type of bycatch in each West Coastfishery is incomplete. Without adequate enforcement and data collectionmethods, it is unlikely that the total mortality of the four overfishedspecies will be consistent with the limits necessary to rebuild thesespecies.
Response: Many recent improvements have been made to theinformation systems used to manage the groundfish fishery. The improvementsthat are expected to reduce the types of uncertainty identified by thecommenter include: the implementation of a West Coast Groundfish ObserverProgram (WCGOP) to collect commercial fishery data to improve discard andtotal catch estimates in the commercial fishery; the development of a newbycatch model to better estimate fleetwide impacts; replacement of the oldMarine Recreational Fishery Statistical Survey (MRFSS) with new and moreaccurate statistical surveys; and the implementation of a vessel monitoringprogram to monitor compliance with depth-based management measures. NMFSbelieves that these data collection methods and enforcement mechanisms,which are discussed below, improve the agency's ability to monitor andenforce the harvest management measures specified for the fishery, andthereby keep the overfished species within the harvest levels establishedfor rebuilding.
NMFS recognizes that effective bycatch accounting and control mechanismsare necessary for staying within the total catch OYs established forrebuilding. NMFS agrees with the commenter that estimates of catch haveimproved over time for the commercial fishery. Since the inception of theWCGOP in August 2001, substantial improvements have been made in the dataand models used to estimate fleet-wide discards in commercial fisheries.Following the release of the first year of WCGOP data in January 2003, NMFSincorporated observer program data on the bycatch of overfished speciesinto the bycatch model. The Council began to use observer data to informinseason groundfish management at its April 2003 meeting. For the 2004fishing year, NMFS has further revised the bycatch model to incorporatediscard rates on both overfished and targeted species, as generated byobserver data. Because the second year of the WCGOP increased coverage ofthe limited entry nontrawl fleet, NMFS plans to further modify the 2004bycatch model to incorporate nontrawl data once it has been compiled into ausable form. The agency expects that data from the second year of theWCGOP will be incorporated into inseason groundfish fisheries management bythe April 2004 Council meeting, and will be used in the development of2005-2006 management measures. [For further information on thebycatch model, see the preamble to the 2003 and 2004 proposed rules toimplement specifications and management measures, 68 FR 936, January 7,2003, and 69 FR 1380, January 8, 2004.]
Recreational catch data are compiled in the Recreational FisheriesInformation Network (RecFIN) database. The types of data compiled inRecFIN include sampled biological data, estimates of landed catch plusdiscards, and economic data. The MRFSS, which includes field surveys and arandom-daily phone survey, has been part of the RecFIN database system.The MRFSS was not initially designed for the purpose of estimating catchand effort at the level of precision needed for management or assessment,rather it was designed to provide a broad picture look of nationalfisheries. Comparisons with independent and more precise estimationprocedures has shown wide variance in catch estimates. Inseason managementof recreational fisheries using MRFSS has been complicated by largeinseason variance of catch estimates. Washington and Oregon have used theMRFSS system as a supplement to the port sampling programs from which mostof their recreational catch estimates are derived. Because California hashad a greater dependence on MRFSS in estimating their recreational catch,catch estimates of California recreational catch have variedconsiderably.
In recent years, many efforts have been made to improve the MRFSSsystem. In 2001 the Pacific States Marine Fisheries Commission (PSMFC),with support from NMFS, began a new survey to estimate party/charter boat(CPFV) fishing effort in California. This survey differed from thetraditional MRFSS telephone survey of anglers to determine CPFV trips by2-month period. The survey sampled 10 percent of the active CPFV fleeteach week to determine the number of trips taken and the anglers carried oneach trip. This 10-percent sample was then expanded to makeestimates of total angler trips for Southern California and NorthernCalifornia. However, increased sampling coverage is needed to improve theprecision in estimates necessary for managing for the low OYs of overfishedspecies like canary rockfish and bocaccio. In any statistical samplingprogram, a greater sample size is needed to more accurately predict rareevents such as the catch of overfished species. Therefore, the Council andWest Coast states requested a different system to replace MRFSS on the WestCoast. NMFS agreed, and a new catch and effort estimation system is beingdeveloped.
The MRFSS has been or is being phased out on the West Coast. Changeslisted below are expected to result in improved recreational catchestimates. Beginning in January 2004, the MRFSS and State of CaliforniaState Ocean Salmon Project were replaced by one all inclusive survey, theCalifornia Recreational Survey which will sample all fisheries and fishingmodes. Since July 2003, Oregon has continued to use its OregonRecreational Boat Survey and replaced MRFSS with a new inland boat andshore survey using the state's angler licenses to estimate effort. SinceJuly 2003, Washington MRFSS has maintained its Ocean Sampling Program andreplaced Puget Sound MRFSS boat and shore sampling with a new Puget SoundBoat Survey. The State's angler licenses will be used to estimate anglereffort in the Puget Sound. Shore sampling was discontinued in July 2003.RecFIN funds formerly used to conduct MRFSS in the three states have beenredirected to support, along with state funding, the cost of these newprograms.
In January 2004, NMFS implemented a vessel monitoring program to monitorcompliance with closed and restricted areas, including the rockfishconservation areas. The Pacific Coast vessel monitoring program consistsof declaration reports and a vessel monitoring system (VMS). Thedeclaration reports, which aid enforcement in identifying vessels operatingin a closed or restricted area, are reports sent by fishermen beforeleaving port on a fishing trip. The purpose of the declaration report isto identify their intent to legally fish within a Rockfish ConservationArea (RCA -large-scale depth-related areas where low overfished rockfishspecies are commonly found), the gear that will be used, and the fisherythey are participating in. The VMS is used to track an individual vessel'sgeographic position through a satellite communication system. VMStransceiver units are required aboard all vessels registered to limitedentry permits and will be used to track vessel activity in relation toclosed areas within 200 nautical miles along the Pacific coast.
NMFS expects that, taken together, these various improvements tocommercial and recreational fisheries monitoring and sampling methodologiesshould greatly improve estimates of total mortality of overfished and otherspecies.
Comment 4: Amendment 16-2 does not containmanagement measures to rebuild overfished species. To ensure rebuildinggoals are met, rebuilding plans need to include management measures to (1)ensure rebuilding targets are met, (2) account for and reduce bycatch, (3)reduce impacts of current fishing on habitats that are important to theoverfished stocks and their prey species, and (4) aid in the enforcement ofthe management measures.
Response: West Coast groundfish fisheries aremulti-species fisheries and the FMP covers over 80 species of fish. Thefour overfished species affected by this action co-occur with many othermore abundant stocks. Because of this commingling of overfished and moreabundant stocks, the varied fisheries that take groundfish all tend to havesome effect on at least one of the nine species that has been declaredoverfished.
The FMP addresses how the fisheries as a whole are to be managed,whereas rebuilding plans are species-specific and define the parametersthat govern the rebuilding of a particular species. The harvestspecifications and management measures, on an annual or biennial basis,address the fisheries as a whole. Regulations implemented through theharvest specifications and management measures are intended to address allof the fisheries that take groundfish and include measures to implementrebuilding plans for overfished species. Management measures in theseregulatory packages are based on the most recently available scientificinformation on the status of the various groundfish stocks and fisheries.
In managing a multi-species fishery, it is not necessary or practical toinclude all of the management measures that will be used to rebuild aparticular overfished species in that species' rebuilding plan. Rebuildingplans will provide the specific time period and fishing mortality rate thatmanagement measures implemented under the authority of the FMP beconsistent with. It is important for the FMP as a whole to provide thestructure to implement a variety of different management measures torebuild overfished stocks, and to manage the fisheries as a whole inaccordance with the Magnuson-Stevens Act. Relying on the whole FMP toprotect overfished stocks within a multi-species fishery, does not violatethe Magnuson-Stevens Act.
The FMP and its rebuilding plans are sufficient "to endoverfishing in the fishery and to rebuild affected stocks of fish"(16 U.S.C. 1854(e)(3)(A). They are neither vague nor meaningless. ThisAmendment 16 1 sets out the required elements for a rebuilding plan. TheFMP states in section 4.6.1.5. that "OY recommendations will beconsistent with established rebuilding plans and achievement of their goalsand objectives. . . . (b) In cases where a stock or stock complex isoverfished, Council action will specify OY in a manner that complies withrebuilding plans developed in accordance with Section 4.5.2." ThePlan further states at 5.1.4 "For any stock the Secretary hasdeclared overfished or approaching the overfished condition, or for anystock the Council determines is in need of rebuilding, the Council willimplement such periodic management measures as are necessary to rebuild thestock by controlling harvest mortality, habitat impacts, or other effectsof fishing activities that are subject to regulation under the biennialprocess. These management measures will be consistent with any approvedrebuilding plan." Most management measures used in the fishery aredescribed in section 6 of the FMP. The existing emergency rule forgroundfish for January and February 2004, (69 FR 13222; January 8, 2004),implements the first four rebuilding plans, and the interim rebuildingstrategies for the remaining overfished species for January and February.The proposed rule for groundfish for 2004 (69 FR 1380; January 8, 2004),proposes ABCs/OYs and management measures that implement the rebuildingplans. The management of overfished species for 2004 is summarized at 69 FR1380.
The FMP as a whole provides direction on rebuilding overfished speciesin several places and includes, in Chapter 6, management measures andregulatory programs the Council uses and intends to use to meet its variedfishery management responsibilities. Section 6.1 describes a series ofmanagement measures that the Council uses to control fishing mortality,including but not limited to: permits, licenses and endorsements;restrictions on trawl mesh size; landing limits and trip frequency limits;quotas, including individual transferable quotas; escape panels or portsfor pot gear or trawl or other net gear; size limits; bag limits; time/areaclosures; other forms of effort control including input controls on fishinggear such as restrictions on trawl size or longline length or number ofhooks or pots; and allocation of species or species groups between fishingsectors. Section 6.2 among other things authorizes the Council to closefishing seasons, either as time/area closures set pre-season or inseason,in order to protect overfished species. Section 6.3 of the FMP deals withbycatch management and measures the Council has taken in recent years toreduce bycatch. Essential fish habitat (EFH) is addressed in section 6.6.As described below in the response to this comment, NMFS is in the processof reviewing the FMP's approach to EFH. Nonetheless, it is the FMP as awhole that sets the Council's management philosophies and practices for allgroundfish species and protects overfished species, not just the specificrebuilding plans for those species.
The Magnuson-Stevens Act at section 303(a) describes the requiredprovisions of any Federal fishery management plan. Sub-paragraph 303(a)(7)requires that the FMP describe and identify essential fish habitat and"minimize to the extent practicable adverse effects on such habitatcaused by fishing..." Sub-paragraph 303(a)(11) requires that the FMP"establish a standardized reporting methodology to assess the amountand type of bycatch occurring in the fishery, and include conservation andmanagement measures that, to the extent practicable and in the followingpriority: (A) minimize bycatch; and (B) minimize the mortality of bycatchwhich cannot be avoided."
Amendment 11 to the FMP provided a description within the FMP of EFH forWest Coast groundfish. Amendment 11 was challenged in AmericanOceans Campaign v. Daley 183 F. Supp. 2d1 (D.C.C. 2000),along with challenges to fisheries managed by the Caribbean, Gulf ofMexico, New England, and North Pacific Fishery Management Councils. ForWest Coast groundfish, the Court found that NMFS had not conducted anadequate National Environmental Policy Act (NEPA) analysis on the effectsof fishing on groundfish EFH. NMFS is in the midst of drafting an EIS ongroundfish EFH and plans to release the draft EIS for public review inFebruary 2005. Further information on this EIS is available at: http://www.nwr.noaa.gov/1sustfsh/groundfish/eis_efh/efh/ .
Amendment 11 described EFH for West Coast groundfish based oninformation that was available in 1998, when the amendment was completed.Since that time, there have been notable increases in funding for EFHresearch and improvements in ocean habitat mapping technologies. Theseresearch and mapping improvements are informing the drafting of the new EFHDEIS. Until the completion of that DEIS, Amendment 11's descriptions ofEFH for each of the overfished species must serve to characterizespecies-specific EFH and to inform management measures intended to rebuildthose species. For example, the EFH appendix to Amendment 11 (online at http://www.nwr.noaa.gov/1sustfsh/efhappendix/page1.html )provides descriptions of the habitats used by the 80+ species in the FMP,including the ocean depths where those species are commonly found. TheCouncil used these habitat descriptions in the development of RockfishConservation Areas (RCAs), which are intended to protect the suite ofcontinental and slope overfished species in waters where they are commonlyfound. RCAs are primarily intended to protect overfished stocks from beingincidentally harvested by vessels targeting more abundant species. Closureof these areas, however, also protects habitat within the RCAs from theeffects of groundfish fishing gear. NMFS anticipates that the new EFH EISwill allow the Council to incorporate more data-rich descriptions of theEFH of individual groundfish species into its groundfish fishery managementplanning. Section 303(a) of the Magnuson-Stevens Act requires that the FMPas a whole include a description of EFH and EFH protection measures. Itdoes not require that each amendment to the FMP describe EFH and provideEFH protection measures.
Amendment 13 to the FMP addressed bycatch in the West Coast groundfishfisheries and was also challenged in Court, Pacific MarineConservation Council, Inc. v. Evans , 200 F. Supp. 2d1194(N.D. Calif. 2002). The Court held that Amendment 13 failed to establishan adequate bycatch reporting methodology, did not comply with the duty tominimize bycatch and bycatch mortality, and violated NEPA because NMFS didnot take "hard look" at the environmental consequences ofAmendment 13, and failed to consider a reasonable range of alternatives andtheir environmental consequences. In particular, the Court concluded thatAmendment 13 failed to establish a standardized reporting methodologybecause it failed to establish either a mandatory or an adequate observerprogram. Further, it failed to minimize bycatch and bycatch mortalitybecause it failed to include all practicable management measures in the FMPitself. The Court also found a lack of reasoned decisionmaking becausefour specific bycatch reduction measures (fleet size reduction, marinereserves, vessel incentives, and discard caps) were rejected withoutconsideration on their merits. With respect to NEPA, the EA prepared forAmendment 13 failed to address adequately the ten criteria for an action'ssignificance set forth in the Council on Environmental Quality regulationsat 40 CFR 1508.27(b), and also failed to analyze reasonable alternatives,particularly the immediate implementation of an adequate at-sea observerprogram and bycatch reduction measures.
NMFS is in the process of drafting an EIS to address the Court'srequirement for a new NEPA analysis on bycatch in the groundfish fisheriesand is scheduled to release the draft EIS for public review through theEnvironmental Protection Agency on February 27, 2004. The draft EIS onbycatch provides information necessary to further improve the bycatchreduction program for West Coast groundfish fisheries. Further informationon this EIS is available at: http://www.nwr.noaa.gov/1sustfsh/groundfish/eis_efh/pseis/ .
NMFS has implemented numerous bycatch reduction measures since theCouncil's approval of Amendment 13 in 2000. Through the issuance ofexempted fishing permits (EFPs), the agency has supported the collection ofdata needed to assess the feasibility of full retention measures in thefollowing fisheries: Pacific whiting, arrowtooth flounder, yellowtailrockfish, nearshore flatfish, and the dogfish fishery. NMFS has alsosupported the use of EFPs to test the effectiveness of flatfish selectivetrawl gears. Shorter-than-year-round fishing seasons have been set forvarious species and sectors of the groundfish fleet in order to protectdifferent overfished groundfish species. Amendment 14 to the FMPimplemented a permit stacking program for the limited entry fixed gearfleet that reduced the number of vessels participating in the primarysablefish fishery by about 40 percent. In 2003, NMFS implemented a buybackof limited entry trawl vessels and their permits, reducing the groundfishtrawl fleet by about one-third. NMFS has implemented gear modificationrequirements that restrict the use of trawl gear in rocky habitat and thatconstrain the catching capacity of recreational fishing gear. Highergroundfish landings limits have been made available for trawl vessels usinggear or operating in areas where overfished species are less likely to betaken.
Implementation of the NMFS WCGOP in August 2001 addressed the Court'sorder that NMFS implement an adequate bycatch assessment methodology, whichuses a standardized reporting methodology. NMFS believes that the WCGOPcomprises an adequate reporting methodology for estimating the amount andtype of bycatch occurring in the fishery. Amendment 16-1 addedprovisions to the FMP that made this program mandatory.
In 2002, a bycatch model was first used to examine species-to-specieslandings limit ratios. Data from this observer program, from historicobserver programs, and from fishery-dependent data are used in the bycatchmodel for West Coast groundfish fisheries. WCGOP data are used inanalyzing where and when different sectors of the groundfish fleet havetargeted and may target groundfish. Each intervening year since 2002, thebycatch model has been modified to incorporate new WCGOP data. The bycatchmodel has been used in the development of Rockfish Conservation Areas (RCAs- large time/ area closures that affect the entire West Coast and arespecifically designed to reduce the incidental catch of overfishedgroundfish species in fisheries targeting more abundant stocks) which wereimplemented through 50 CFR 660.304 and the harvest specifications andmanagement measures.
Comment 5: NMFS should, at a minimum, include measures tocompare total mortality estimates at the end of each year with that year'sOY values to determine if any overages have occurred. If so, an adjustmentshould be made in the following year's OY as early in that year as possibleto compensate for the overages. Such measures would be consistent withrecommendations in the Technical Guidance to make downward adjustments ofsubsequent year fishing mortality rates in response to OY overages foroverfished species.
Response: The Magnuson-Stevens Act requires NMFS toannually report to Congress on the status of the fisheries and to identifythose fisheries that are overfished or approaching a condition of beingoverfished. Each year, NMFS prepares The Annual Report toCongress on the Status of the Fisheries which provides the mandatedinformation and also identifies any stocks for which overfishing hasoccurred. Overfishing occurs when a stock or stock complex is subjected toa rate of fishing mortality that jeopardizes the stock's ability to producemaximum sustainable yield (MSY) on a continuing basis. For West Coastgroundfish, the ABC is set at FMSY and exceeding the ABC isoverfishing.
When looking at whether ABC values have been exceeded, NMFS also noteswhether OY values have been exceeded and works with the Council to revisemanagement measures so as to reduce the likelihood that OYs for the samespecies will be exceeded in subsequent years. Management measures forhealthy stocks are intended to achieve OYs without exceeding them, unlessthe achievement of a particular species' OY would negatively affect therebuilding of a co-occurring overfished species. In such a case,management measures would be designed to keep the harvest under the OY ofthe healthy stock in order to rebuild the overfished stock. NMFS willcontinue to monitor whether the fisheries have exceeded acceptablebiological catches (ABCs) or OYs and will continue to work with theCouncil to make inseason adjustments to management measures to prevent thefisheries from continually exceeding OY target levels.
NMFS, the state fisheries agencies, and the Council monitor fisherieslandings inseason. Commercial fisheries landings are monitored by a fishticket system managed by the three states. State fish ticket data iscompiled by the Pacific States Marine Fisheries Commission (PSMFC).Estimated commercial landings amounts are provided to the agencies and thepublic via the Pacific Fisheries Information Network (PacFIN). Dependingon state funding and staffing levels, groundfish landings may be recordedin PacFIN anywhere from several days to a few months after the landingshave been made. For this reason, fishery managers must estimate currentlandings levels of a particular species by extrapolating what we know hasalready been landed out to an estimate based on several differentvariables, such as past harvest rates in particular months, number ofvessels participating in the fishery in those months, etc. With the timedelays in this landings monitoring system, the Council does not have fullyup-to-date landings information when making its inseason adjustments orABC/OY recommendations.
The state fish ticket system and PacFIN monitor commercial fisherieslandings. These systems do not include fish taken at sea and lost ordiscarded. While NMFS monitors total catch levels through at-sea observersampling programs, the agency does not have the staff, funding, ortechnology to monitor the thousands of trawl tows and trap and longlinehauls that result in the fishery's total commercial catch. Instead, NMFSmonitors a portion of the commercial fleet through observers and uses amodel based on the observer data with fish ticket and other data toestimate total catch for the fleet.
In the preamble to the proposed rule for the 2004 Annual Specificationsand Management Measures (January 8, 2004, 69 FR 1380), NMFS described abycatch model that is used both pre-season to develop management measuresand inseason to modify management measures. This model is a "totalcatch" model, i.e. it calculates the total expected catch, not justfish that are actually landed. The model is updated annually with newWCGOP data. Observer data from the 2001-2002 fisheries was used todevelop 2004 management measures and discard estimates. NMFS justcompleted its analysis of 2002-2003 WCGOP data ( http://www.nwfsc.noaa.gov/research/divisions/fram/observers/ ),and that analysis will be available to the Council for the development ofthe 2005-2006 fishery specifications and management measures.
As with the commercial fisheries, PSMFC maintains a database forrecreational fisheries, the Recreational Fisheries Information Network(RecFIN). Estimates of recreational fisheries catch and landings areavailable on the internet at http://www.recfin.org/ . Allthree states deploy port samplers for at-dock sampling of recreationalgroundfish fisheries. Even more so than in commercial fisheries,recreational fisheries data may not be available to fisheries managersuntil several months after the subject fishing trips have occurred.Because the states of Washington and Oregon have smaller coastlines andsmaller populations than California, they tend to directly sample a muchgreater proportion of their recreational fisheries catch than Californiadoes.
In past years, California has relied on NMFS' MRFSS for its estimates ofrecreational fisheries catch. MRFSS uses a telephone survey of the generalpopulation to determine which persons in the population are anglers, and,of the anglers, how much of which species they are catching and landing.MRFSS was initially designed as an annual sampling program that wouldprovide a snapshot of an entire year's harvest of different recreationalspecies. Because MRFSS was the only tool for estimating recreationalcatch, the Council has used it for inseason management in recent years.
Recreational fisheries data needs have increased notably since theCouncil first began managing the fisheries to rebuild overfished stocks in2000. All three states, the Council, and NMFS have been concerned thatdata generated from MRFSS was not accurate or timely enough to supportinseason management of recreational fisheries. Over 2002-2003, theagencies met through the PSMFC's RecFIN Data Committee and worked togetherto update their monitoring programs so as to better meet the coastwide needfor improved recreational fisheries catch data. PSMFC reported to theCouncil on the planned changes to recreational fisheries data gathering inthe three states at the Council's November 2003 meeting. All three stateshave eliminated MRFSS as a sampling tool, focusing instead on at-docksampling and angler interviews. While California will continue to usetelephone interviews as one of its data-gathering methods, its surveypopulation will be licensed California anglers, not the entire populationof the State of California. California will also be increasing its at-docksampling presence and providing some on-board observation of charterboats.Oregon and Washington will also be replacing their MRFSS general-populationsurveys with surveys specific to licensed anglers, and with increasedat-dock and at-sea monitoring.
The Technical Guidance at section 3.4 states that "...Stockrebuilding should be monitored closely so that adjustments can be made whenrebuilding milestones are not being met for whatever reason. For example,if target rebuilding fishing mortality rates are exceeded due to quotaover-runs, subsequent target fishing mortality rates should typically beadjusted downwards to put the stock back on the rebuilding timetable." NMFS makes adjustments to OYs after conducting a stockassessment of the population of a particular species; these assessmentsoccur every 2-4 years. (Previously, NMFS had been on a 3-yearstock assessment cycle. With the adoption of Amendment 17, the science andmanagement cycle has shifted from annual to biennial management. Under thebiennial management cycle, stock assessments will be conducted every2-4 years.) The decisions on which stock assessments to do whichyear will depend on the status of the stocks, and the availability of dataand stock assessment personnel. In the years between assessments, NMFS andthe Council address over-and under-harvests by adjusting managementmeasures to try to achieve, but not exceed, OYs of several of the moreabundant stocks will, of necessity, not be achieved in order to protectco-occurring overfished species.
Stock assessments take harvest overages and underages into account inevaluating the status of a stock and whether rebuilding milestones arebeing met. New fishing mortality rates set subsequent to each new stockassessment will keep the stock on its rebuilding trajectory. NMFS does notplan to adopt a policy of regularly adjusting ABCs and OYs either inseasonor annually to account for catch overages or underages from the previousyear. Such a policy, if carried out over a period of several years, couldresult in wild fluctuations in harvest levels, further de-stabilizingfishing communities. Overages or underages will continue to beincorporated into new stock assessments and the appropriate adjustments tofishing mortality rates to remain on the rebuilding trajectories will bemade at that time. As the Technical Guidance notes in several places, itsguidance is intended to address the biological aspects of national standard1 and does not incorporate the socio-economic considerations addressed bythe Magnuson-Stevens Act and the other national standards.
Comment 6: In the preamble to the proposed rule, NMFSstates that the target year for rebuilding should only be changed inunusual circumstances, such as if, based on new information, the rebuildingtarget is greater than the maximum allowable time frame (T MAX ) and if socio-economic reasons dictate otherwise. These areinappropriate reasons for changing the target rebuilding date because: (1)Shortening the rebuilding period to account for a revised T MAX provides no assurance that the species will be rebuilt in asshort a time as possible, and (2) target rebuilding dates have already beenlengthened for socio-economic reasons, further lengthening targetrebuilding periods for socio-economic reasons will prevent rebuilding ofthe overfished populations.
Response: NMFS believes that the specified rebuildingtime periods for the four overfished species need to be consistent with thelegal requirements of the Magnuson-Stevens Act and with the nationalstandard guidelines. If a new stock assessment and rebuilding analysisresult in a T MAX being a shorter duration than thatpreviously predicted, NMFS would be required to keep T TARGET below T MAX . Discussion on setting target rebuilding datescan be found in the responses to Comment 1 and Comment 2, where we explainthe Magnuson-Stevens Act and the national standard guideline requirementsregarding rebuilding duration and factors that may affect the rebuildingperiod, as well as the Technical Guidance recommendations.
Comment 7: The proposed rule presents the status of eachAmendment 16-2 stock when it was declared overfished, but omits thestatus of those species as of their most recent stock assessments. Thosestock statuses should be shown, since the rebuilding parameters provided inthe regulations reflect information from the most recent stockassessments.
Response: The proposed rule reflects the rebuildingparameters that were adopted by the Council in June 2003. These parameterswere based on the most recent stock assessments that were available at thattime. Since June 2003, new stock assessments and rebuilding analyses wereprepared and approved by the Council for POP and darkblotched rockfish.The most recent status of each overfished species can be found in theoverfished species section of the preamble to the proposed rule for the2004 harvest specifications and management measures January 8, 2004 (69 FR1380). It is NMFS's intention to provide the most recent stock assessmentand rebuilding analysis results with the preamble discussions in futureproposed rules to implement the harvest specifications and managementmeasures. The harvest specifications and management measures is a Federalrulemaking with a notice and comment period. This information will also beavailable within the annual Stock Assessment and Fishery Evaluation (SAFE)document. As explained earlier in this document under "changes fromthe proposed rule," this final rule implements the most up-to-daterebuilding parameters for the four Amendment 16-2 overfished species.Any changes to these rebuilding parameters will be through anotice-and-comment rulemaking.
Comment 8: Amendment 16-2 should be brought intocompliance with the Magnuson-Stevens Act requirement at 304(e)(3)(a) that arebuilding plan be designed "to end overfishing in the fishery and torebuild affected stocks of fish." To do so, rebuilding plans shouldinclude specific conservation and management measures designed to rebuildeach species. The EIS for Amendment 16-2 should have included arange of management measures alternatives necessary to achieve the proposedrebuilding targets and time periods.
Response: The rebuilding plans for the four overfishedspecies are consistent with the Magnuson-Stevens Act requirements at304(e)(3)(a) and, when considered as part of the FMP as a whole, aresufficient to "to end overfishing in the fishery and to rebuildaffected stocks of fish."
The FMP is the Council's policy vehicle for addressing how the fisheriesas a whole are to be managed, whereas rebuilding plans are species-specificand are intended to define the parameters the Council will use to governthe rebuilding of a particular species. The harvest specifications andmanagement measures, on an annual or biennial basis, address the fisheriesas a whole. Regulations implemented through the harvest specifications andmanagement measures are intended both to address all of the fisheries thattake groundfish and to implement the requirements of rebuilding plans.Management measures in these regulatory packages are based on the mostrecently available scientific information on the status of the variousgroundfish stocks and fisheries. The response to Comment 4 furtherdescribes the components of the FMP that can be used to manage the fisheryand rebuild overfished stocks.
Comment 9: Accounting mechanisms must be established toaccurately count bycatch of overfished species and other marine life suchas the use of an observer program with adequate coverage, Federal permit orlicensing requirements, or other appropriate data collection methods.Bycatch accounting measures must also ensure that all sources of mortalitydata are made available to the public and incorporated into the annualspecifications process in a timely manner.
Response: At 16 U.S.C. 1853(a)(11), the Magnuson-StevensAct requires that FMPs, among other things, "establish a standardizedreporting methodology to assess the amount and type of bycatch occurring inthe fishery..." Adequate bycatch accounting is necessary formanaging a fishery, and for keeping total catch within specified OYs.
An observer program is one means for obtaining bycatch information incommercial fisheries. In August 2001, NMFS implemented the WCGOP whichuses a standardized bycatch reporting methodology. The availability of theWCGOP observer coverage plan was announced on January 10, 2002 (67 FR 1329)and is available via the internet at: http://www.nwfsc.noaa.gov/research/divisions/fram/observers/ .
In the first year of the WCGOP (August 2001-August 2002,) NMFSfocused observer coverage largely on the non-whiting groundfish trawlfleet, with some pilot effort in the nontrawl limited entry and open accessfleets. Observer coverage for the nontrawl fleet, particularly for limitedentry vessels with sablefish endorsements, expanded during the second yearof the observer program (September 2002-August 2003). In September2003, NMFS reported to the Council on bycatch modeling and observer datadevelopments.
WCGOP has focused its coverage on the limited entry trawl fleet becausethat fleet annually makes greater than 95 percent (by weight) of West Coastcommercial groundfish landings coastwide (PacFIN, 1999-2003). Underthe WCGOP coverage plan, the program has a goal of 10 percent coverage oftrawl landings in any one year. With its 30-40 observers availableeach year, the WCGOP has been able to select each trawl fleet participantfor coverage for at least one cumulative limit period in each year. Theobserver coverage levels are dependent upon the number of vessels activelyparticipating in the fishery and on available program funding. Data fromthe first year of the observer program are available on the WCGOP site,mentioned earlier in this paragraph. NMFS is evaluating data from thesecond year of observer coverage and plans to release a data report on theWCGOP activities over September 2002-August 2003 in early 2004.
Following the release of the first year of WCGOP data in January 2003,NMFS incorporated WCGOP data on the bycatch of overfished species into thebycatch model. The Council began to use observer data to inform inseasongroundfish management at its April 2003 meeting. For the 2004 fishingyear, NMFS has further revised the bycatch model to incorporate discardrates on both overfished and targeted species, as generated by observerdata. Because the second year of the WCGOP increased coverage of thelimited entry nontrawl fleet, NMFS plans to further modify the 2004 bycatchmodel to incorporate nontrawl data. The agency expects that data from thesecond year of the WCGOP will be incorporated into inseason groundfishfisheries management by the April 2004 Council meeting, and will be used inthe development of 2005-2006 management measures. Amendment16-1 of the FMP added language that made the WCGOP a mandatoryprogram for the groundfish fishery. The commenter also wishes the FMP todiscuss the scope and adequacy of an observer program, whereas the FMPdefers the design of the WCGOP to NMFS.
Over the past year, NMFS has been reviewing the agency's approach tostandardized bycatch monitoring programs for all federally managedfisheries. The report, "Evaluating Bycatch: A National Approach toStandardized Bycatch Monitoring Programs," is available on theinternet at: http://www.nmfs.noaa.gov/bycatch.htm . Alsoavailable at that website is the "NOAA Fisheries Objectives,Protocol, and Recommended Precision Goals for Standardized BycatchReporting Methodologies." This latter report addresses the questionof the adequacy of an observer program or other standardized reportingmethodology by setting "precision goals" for monitoringprograms. According to this report, the levels of precision NMFS strivesto achieve for fishery resources caught as bycatch in a fishery, excludingspecies protected under the ESA or MMPA, is a 20-30 percent CV[coefficient of variation] for estimates of total discards (aggregated overall species) for the fishery; or if total catch cannot be divided intodiscards and retained catch then the recommended goal for estimates oftotal catch is a CV of 20-30 percent." In setting theseprecision goals, NMFS recognizes that "(1) there are intermediatesteps in increasing precision which may not immediately achieve the goals;(2) there are circumstances in which higher levels of precision may bedesired, particularly when management is needed on fine spatial or temporalscales; (3) there are circumstances under which meeting the precision goalwould not be an efficient use of public resources; and (4) there may besignificant logistical constraints to achieving the goal."
The "Evaluating Bycatch" report characterizes the WCGOP as a"developing" observer program, meaning that it is a program"in which an established stratification design has been implementedand alternative allocation schemes [for observer coverage] are beingevaluated to optimize sample allocations by strata to achieve therecommended goals of precision of bycatch estimates for the major speciesof concern." The next step beyond a developing observer program is a"mature" program "in which some form of an optimalsampling allocation scheme has been implemented. The program is flexibleenough to achieve the recommended goals of precision of bycatch estimatesfor the major species of concern considering changes in the fishery overtime."
As discussed above, NMFS will be releasing the second year of observerdata in January 2004. Because observer coverage in the groundfish fisheryhas been largely focused on the trawl fishery, NMFS expects that it willhave achieved the NMFS precision goals of 20-30 percent CV forestimates of total discards in the trawl fishery and of 20-30 percentCV for estimates of species-specific discards of those overfished speciesthat are commonly taken in the trawl fishery. For overfished species thatare either not commonly taken in the trawl fishery, such as yelloweyerockfish, or species that are unavailable to the fisheries because of largearea closures, such as cowcod, NMFS expects that the current trawl-focusedsampling program will not achieve the 20-30 percent CV precisiongoal. As it works toward becoming a mature observer program, the WCGOPwill likely increase observer coverage of nontrawl vessels in order to geta more precise estimate of yelloweye rockfish bycatch. For cowcod, a rareevent species with large portions of its habitat closed to fishing,evaluation of annual mortality may have to take some form other than afishery observation program.
At section 6.3.3, the FMP identifies the management need for an observerprogram or other bycatch measurement program as an aid for the Council to"better identify and prioritize the bycatch problems in thegroundfish fishery, based on the expected benefits to the U.S. and on thepracticality of addressing these problems." The Council has useddata from WCGOP to re-shape its landings limits and time/area closures.The Council has also used WCGOP data to evaluate species-to-specieslandings limit ratios, as well as species-to species catch ratios in thebycatch model. NMFS expects that the WCGOP will continue to meet theCouncil's need to identify and prioritize bycatch problems in thegroundfish fishery, and that WCGOP data will continue to directly informboth annual and inseason management measures.
In January 2004, NMFS implemented a vessel monitoring program to monitorcompliance with closed areas, including the groundfish conservation areas.The Pacific Coast vessel monitoring program consists of declaration reportsand VMS. With VMS, vessels registered to limited entry trawl vessels arerequired to install and use a mobile transceiver unit whenever the vesselis used to fish in state or Federal waters off the west coast. The VMSequipment records the vessel's geographic position and sends it to NMFSthrough a satellite communication system where it is stored in a database.VMS position data can be used in combination with observer data to betterunderstand total fishing effort, shifts in fishing effort, and potentialbycatch levels.
Comment 10: Amendment 16-2 does not includeprovisions for the rebuilding plans of its subject species that would setstandards for reviewing progress toward rebuilding for those species. Thisis a requirement of rebuilding plans according to Amendment 16-1.NMFS, as the agent of the Secretary of Commerce, has the duty to reviewrebuilding plans every two years to ensure adequate progress. Withoutestablished standards for determining adequacy of progress and triggers formodifying rebuilding parameters, there is a high probability thatrebuilding plans will ultimately fail to achieve rebuilding.
Response: NMFS believes that the rebuilding plans underAmendment 16-2 are consistent with the requirements of theMagnuson-Stevens Act. The Magnuson-Stevens Act requires the Secretary toreview rebuilding plans at intervals that may not exceed two years. Duringthe Amendment 16-1 process, for the purpose of clarity, NMFS workedwith the Council staff to add a sentence to the FMP at the end of section4.5.3.6 to read, "Regardless of the Council's schedule for reviewingoverfished species rebuilding plans, the Secretary of Commerce, throughNMFS, is required to review the progress of overfished species rebuildingplans toward rebuilding goals every two years, per the Magnuson-Stevens Actat 16 U.S.C. 304(e)(7)." NMFS's review of the adequacy of progresson rebuilding plans will be primarily be done through stock assessmentupdates and are expected to follow the schedule defined by theMagnuson-Stevens Act.
FMP Section 4.5.3.2, Contents of Rebuilding Plans, states thatgenerally, "rebuilding plans will contain ... 4. The process, and anyapplicable standards, that will be used during periodic review to evaluateprogress in rebuilding the stock to the target biomass." Whileadopting these rebuilding plans, the Council and NMFS realized thatstandards for measuring the progress of rebuilding needed to be refined.Therefore, at the Council's November 2003 meeting, NMFS asked the Council'sSSC to review and develop standards for measuring the progress ofrebuilding. NMFS also made this request to the Council in its letter ofapproval for Amendment 16-1 and reminded the Council of this requestin its letter of approval for Amendment 16-2. In these letters, NMFSrecommended that setting standards for measuring the progress of rebuildingplans be included in the SSC's Terms of Reference for the Stock AssessmentReview (STAR) processes. By including the setting of rebuilding planprogress standards in the STAR processes for overfished species, theNMFS/Council process for developing and reviewing stock assessments wouldcontinue the link between stock assessments and rebuilding plans foroverfished species. NMFS fully expects that these standards will bedefined before the Secretary's review in January 2006 and the standardswill be included in the Council's annual SAFE document.
Comment 11: Amendment 16-2 improperly opens thedoor for use of the mixed-stock exception, which is contrary to therequirements of the Magnuson-Stevens Act.
Response: Amendment 16-2 does not open the door forwhat the commenter allege is the "illegal use of the mixed-stockexception." Amendment 16-2 has no effect on the mixed-stockexception. Although the mixed-stock exception currently exists in thenational standard guidelines, the Council has never exercised theexception. Amendment 16-2 makes no change in the condition of itspossible application.
Comment 12: Marine sanctuaries are needed where fishingis prohibited. The rebuilding policy does not provide enough protectionfor fish stocks.
Response: Marine sanctuaries are defined under theNational Marine Sanctuaries Act (16 U.S.C. 1431-1445) as areas of themarine environment which have special conservation, recreational,ecological, historical, cultural, archeological, scientific, educational,or esthetic qualities that will improve the conservation, understanding,management, and wise and sustainable use of marine resources; enhancepublic awareness, understanding, and appreciation of the marineenvironment; and maintain for future generations the habitat, andecological services, of the natural assemblage of living resources thatinhabit these areas.
Section 303(a) of the Magnuson-Stevens Act requires that the FMP as awhole include a description of EFH and EFH protection measures, but doesnot provide authority to implement marine sanctuaries. Further, it doesnot require that each individual amendment to the FMP describe EFH andprovide EFH protection measures such as marine protected areas. Thecommenter is correct in stating that Amendment 16-2 does not containrequirements for marine sanctuaries. However, the commenter is incorrectin then concluding that overfished species are not adequately protected bythe FMP.
Comment 13: Commercial fisheries are causing stockdepletion.
Response: NMFS agrees that commercial fishing results infishing mortality, as does recreational fishing. Declines below theoverfished levels in the 1990s were due in large part to harvest ratepolicies that were based on the best scientific information at the time,but were later discovered to not be sustainable. More recent stockassessments indicate that West Coast groundfish stocks likely have lowerlevels of productivity than other similar species worldwide. Aretrospective analysis determined that harvest rate policies in the 1990s,though based on the best available information at the time, were too highto maintain stocks at BMSY.
A 2000 review of groundfish harvest rates by the Council's SSC showedthat then-current scientific information indicated both lower thanhistorically estimated recruitment levels for West Coast groundfish and acorresponding need for lower than historically used harvest rates. Since2000, NMFS and the Council have set ABCs for groundfish species at moreprecautionary rates (F40% for flatfish, F50% for rockfish, and F45% forother groundfish such as sablefish and lingcod).
Comment 14: To ensure rebuilding, fishing mortalityrates and rebuilding strategies should be upheld even when new informationsuggests that the stock size is increasing more rapidly than expected.
Response: Rebuilding plans are expected to be revisedonly when reviews reveal a significant discrepancy between current stockstatus and that projected in the original rebuilding plan or in earlierreviews. It is NMFS's intention that any changes to rebuilding strategiesbe made during the annual or biennial setting of harvest specifications andmanagement measures and be established through a Federal rulemaking with anotice and comment period.
Changes From the Proposed Rule
On January 8, 2004, NMFS published a proposed rule to implement the 2004fishery specifications and management measures January 8, 2004 (69 FR1380). This proposed rule contained revisions to the harvest control rulesfor POP and darkblotched rockfish that had originally been published in theAmendment 16-2 proposed rule. These revisions are now in place underthe final 2004 fishery specifications and management measures that werepublished on March 9, 2004 at 69 FR 11064.
The POP rebuilding parameters in the Amendment 16-2 proposed rulewere based on a 2000 stock assessment that had resulted in a targetrebuilding year of 2027 and a harvest control rule of F=0.0082. The 2004OY presented in the 2004 fishery specifications and management measures wasbased on a new stock assessment prepared in 2003. Because POP rebuildingparameters such as the unfished biomass and BMSY were updated with the newstock assessment, the POP harvest control rule in the final rule will berevised to F=0.0257 from F=0.0082. However, the target rebuilding year(2027) will remain the same as was announced for POP in the Amendment16-2 proposed rule.
Similarly, the darkblotched rockfish rebuilding parameters in theAmendment 16-2 proposed rule were based on a 2000 stock assessmentthat had resulted in a target rebuilding year of 2030 and a harvest controlrule of F=0.027. The 2004 OY presented in the 2004 fishery specificationsand management measures was based on a new stock assessment that wasprepared in 2003 and results in the same target rebuilding year (2030) aswas announced in the Amendment 16-2 proposed rule for thedarkblotched rockfish rebuilding plan. However, because other rebuildingparameters such as the unfished biomass and BMSY were updated with the newstock assessment, the harvest control rule in the final rule will berevised to F=0.032 from F=0.027.
Classification
The Administrator, Northwest Region, NMFS, has determined that Amendment16-2 is necessary for the conservation and management of the PacificCoast groundfish fishery and that it is consistent with theMagnuson-Stevens Act and other applicable laws.
A Final Environmental Impact Statement (FEIS) for this action was filedwith the Environmental Protection Agency on December 12, 2003. A notice ofavailability for the FEIS was published on December 19, 2003 (68 FR 70795).In approving Amendment 16-2, on January 30, 2004, NMFS issued aRecord of Decision identifying the selected alternative (seeADDRESSES).
This final rule has been determined to be not significant for purposesof Executive Order 12866.
NMFS prepared a final regulatory flexibility analysis (FRFA) as part ofthe regulatory impact review. The FRFA incorporates the IRFA, the commentsand responses to the proposed rule, and a summary of the analyses completedto support the action. A copy of this analysis is available from NMFS (see ADDRESSES ).
During the comment period for the proposed rule, NMFS received fourletters of comment, but none of these comments addressed the IRFA orimpacts on small businesses. There are no recordkeeping, reporting, orother compliance issues forthcoming from this proposed rule. This ruledoes not duplicate, overlap, or conflict with other Federal rules.
This action is needed because the Magnuson-Stevens Act at 304 (e)(3)requires rebuilding plans for species that have been declared overfished.These plans must be in the form of FMPs, FMP amendments, or regulations.The objective of this proposed rule is to implement rebuilding parametersthat will result in lingcod, canary rockfish, darkblotched rockfish and POPstocks returning to their MSY biomass levels.
Amendment 16-2 responds to a Court order in NaturalResources Defense Council, Inc. v. Evans , 168 F. Supp. 2d1149 (N.D. Cal 2001,), in which NMFS was ordered to provide Pacific Coastgroundfish rebuilding plans as FMPs, FMP amendments, or regulations, perthe Magnuson-Stevens Act. On October 27, 2003, the Court ordered NMFS toapprove rebuilding plans for lingcod, canary rockfish, darkblotchedrockfish, and POP by January 31, 2004.
Amendment 16-2 follows the framework established by Amendment16-1 and amends the FMP to include rebuilding plans for canaryrockfish, darkblotched rockfish, POP, and lingcod. For each overfishedspecies rebuilding plan, the following parameters would be specified in theFMP: estimates of unfished biomass (B 0 ) and target biomass(B MSY ), the year the stock would be rebuilt in the absence offishing (T MIN ), the year the stock would be rebuilt if themaximum time period permissible under national standard guidelines wereapplied (T MAX ) and the target year in which the stock wouldbe rebuilt under the rebuilding plan (T TARGETt ). No newmanagement measures are proposed in Amendment 16-2, Amendment16-1 describes and authorizes the use of numerous types of managementmeasures intended to achieve rebuilding. These management measures will beimplemented through the biennial management process and will be used toconstrain fishing to the targets identified in the rebuilding plans.
The FEIS/RIR/IRFA for this final rule defines six alternative actionsthat were considered for each of the four overfished species. Thealternatives present a range of rebuilding strategies in terms ofrebuilding probabilities for each species. The no action alternative wouldbe based on the "40 10 harvest policy", which is the defaultrebuilding policy for setting OYs. Under the 40 10 harvest policy, stockswith biomass levels below B40% have OYs set in relation to the biomasslevel. At B40%, an OY may be set equal to the ABC. However, if a stock'sspawning biomass declines below B40%, the OY is scaled downward until at 10percent (B10%) the harvest OY is set at zero unless modified for aspecies-specific rebuilding plan. In comparison to the other alternatives,(except the maximum conservation alternative) the 40 10 policy can resultin lower OYs in the short term, when a stock is at a low biomass level, butallow greater harvests when a stock is at higher biomass levels. Forfurther information on the 40 10 policy see the preamble for the annualspecifications and management measures published on January 8, 1999(64 FR1316) or section 5.3 of the FMP.
The 40-10 policy alternative could require short-term reductionsin OYs for stocks at lower biomass levels than would be required under theother alternatives, except the maximum conservation alternative. Suchreductions could result in reduced profits, income, and employment in awide range of groundfish fisheries over a longer period of time than wouldoccur with the other alternatives. The maximum conservation alternative, based on a harvest mortality rate of zero, would be in place for each stockuntil the individual stock was rebuilt, resulting in the target rebuildingperiod for each stock being equal to T MIN . Each stock couldbe expected to rebuild fastest under this alternative, but at considerablesocioeconomic cost. Because canary and darkblotched rockfish are caught ina wide range of other fisheries, a zero harvest mortality rate would likelyresult in the closure of other fisheries. The rebuilding of these stocks,even in the absence of fishing, is likely to result in many currentparticipants in the commercial recreational fisheries as well as supportingbusinesses going out of business. The maximum harvest alternative for eachoverfished species was based on a 50-percent probability ofrebuilding the stocks to their MSY biomass levels by T MAX .This alternative would delay rebuilding for the longest period of time withthe intent of keeping harvests at the highest allowable levels for theduration of rebuilding. As a result, this alternative would have the leastsocioeconomic impact, in the short term. Delaying the rebuilding periodunder the maximum harvest alternative can also be expressed as the level ofincreased risk to the overfished stocks. Further delay in rebuilding couldhave a greater socioeconomic impact than the other alternatives, ifcurrently healthy stocks were overfished.
Intermediate alternatives were presented only as the rebuildingparameter values for the harvest rate, P MAX , and T TARGET . While keeping the number of alternatives manageable(recognizing that the five primary alternatives encompass the full range ofreasonable alternatives) these additional alternatives were presented inthe FEIS to support decision making and were structured around 10 percentincrements in PMAX between 60 percent and 80 percent for each of the fouroverfished stocks. The 90 percent P MAX value was notevaluated because the effects were not significantly different from theMaximum Conservation Alternative.
The socioeconomic impacts of the intermediate values fall within therange of the other alternatives that were fully analyzed in the FEISanalysis. Quantifying the differences between these alternatives isdifficult given the lack of detailed socioeconomic data. The mixed stockexception alternative would allow higher harvests of canary rockfish andcould be combined with any of alternatives (except the no actionalternative). Since the demands of rebuilding canary rockfish will affect arange of fisheries, (because it constrains stocks), relaxing thisconstraint under any of the alternatives would allow a higher harvest levelin some fisheries. However, fisheries with little or no canary rockfishbycatch, but with bycatch of other overfished species, would notnecessarily benefit. This alternative was not considered for POP orlingcod, since they do not constrain stocks in fisheries where they aretargeted or incidentally caught. The last set of alternatives consideredwere the Council's preferred alternatives for each species and are asfollows: lingcod - 60-percent probability of rebuilding the stockto its MSY biomass by T MAX with a T TARGET of2009 and a harvest rate of 0.0531 in the North and 0.0610 in the south;canary rockfish - 60-percent probability of rebuilding the stock toits MSY biomass by T MAX with a T TARGET of 2074and a harvest rate of 0.0220, darkblotched rockfish - 80 percentprobability of rebuilding the stock to its MSY biomass by T MAX with a T TARGET of 2030 and a harvest rate of0.027, and POP - 70 percent probability of rebuilding the stock to its MSYbiomass by T MAX with a T TARGET of 2027 and aharvest rate of 0.0082. The Council's preferred alternatives, were takenfrom the range of intermediate alternatives for each species.
Rebuilding parameters associated with P MAX values lessthan 50 percent were considered, but rejected because they were notconsidered to be compliant with the requirements of the Magnuson-StevensAct as interpreted in a 2000 Federal Court ruling ( NaturalResources Defense Council v. Daley, April 25, 2000, U.S.Court of Appeals for the District of Columbia Circuit , ). A mixedstock exception alternative was considered for darkblotched rockfish, butwas rejected because the Council indicated that it should not be applied todarkblotched rockfish.
A fish-harvesting business is considered a "small" businessby the Small Business Administration (SBA) if it has annual receipts not inexcess of $3.5 million. The economic impacts of implementing theserebuilding plans will be shared among the participants. Approximately1,560 vessels participate in the West Coast groundfish fisheries. Of those,about 410 vessels are registered to limited entry permits issued for eithertrawl, longline, or pot gear. About 1,150 vessels land groundfish againstopen access limits while either directly targeting groundfish or takinggroundfish incidentally in fisheries directed at nongroundfish species.All but 10 20 of those vessels are considered small businesses by the SBA.Of the 450 groundfish buyers that regularly purchase groundfish, 38 buyerspurchased groundfish product in excess of $1,000,000 in 2002. In the 2001recreational fisheries, there were 106 Washington charter vessels engagedin salt water fishing outside of Puget Sound, 232 charter vessels active onthe Oregon coast and 415 charter vessels active on the California coast.NMFS does not know the proportion of recreational charter vessel operationsthat would be considered large businesses, but the agency believes that themajority of these businesses would be considered "small"businesses by the SBA. This rule is not expected to yield disproportionateeconomic impacts between those small and large entities.
Implementation of specific rebuilding plans may entail substantialeconomic impacts on some groundfish buyers, commercial harvesters, andrecreational operators. The Council preferred rebuilding alternativesspecify annual OY levels for the overfished species that allow some harvestof healthy stocks to continue and are sufficient to mitigate some of theadverse economic impacts on these entities, while not compromising thestatutory requirement for timely rebuilding.
This action was developed after meaningful consultation andcollaboration with tribal representatives on the Council who have agreedwith the provisions that apply to tribal vessels. This action is,therefore, compliant with Executive Order 13175 (Consultation andcoordination with Indian tribal governments).
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,Reporting and recordkeeping requirements.
Dated: April 6, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine FisheriesService.
For the reasons set out in thepreamble, 50 CFR part 660 is amended as follows:
PART 660-FISHERIES] OFF WEST COAST STATES AND IN THEWESTERN PACIFIC
1. The authority citation for part 660 continues to read asfollows:
Authority:
16 U.S.C. 1801 etseq.
2. Section 660.370,"Overfished species rebuilding plans" is revised to read asfollows:
§ 660.370 Overfished speciesrebuilding plans.
(a) Canary rockfish. The target year for rebuilding thecanary rockfish stock to B MSY is 2074. The harvest controlrule to be used to rebuild the canary rockfish stock is an annual harvestrate of F=0.022.
(b) Darkblotched rockfish. The target year for rebuildingthe darkblotched rockfish stock to B MSY is 2030. The harvestcontrol rule to be used to rebuild the darkblotched rockfish stock is anannual harvest rate of F=0.032.
(c) Lingcod. The target year for rebuilding the lingcodstock to B MSY is 2009. The harvest control rule to be usedto rebuild the lingcod stock is an annual harvest rate of F=0.0531 in thearea north of 40°10' N. lat. and F=0.061 for the area south of40° 10' N. lat.
(d) Pacific ocean perch (POP). The target year forrebuilding the POP stock to B MSY is 2027. The harvestcontrol rule to be used to rebuild the POP stock is an annual harvest rateof F=0.0257.
[FR Doc. 04-8382 Filed 4-12-04; 8:45 am]
BILLING CODE 3510-22-S