[Federal Register Volume 68, Number 150 (Tuesday, August 5, 2003)]
[Rules and Regulations]
[Pages 46112-46116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19932]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[I.D. 032703B]
RIN 0648-AN79, 0648-AP54, 0648-AP55


Fisheries Off West Coast States and in the Western Pacific; 
Pelagic Fisheries, Amendment 8; Crustacean Fisheries, Amendment 10; 
Bottomfish and Seamount Groundfish Fisheries, Amendment 6; Precious 
Corals Fisheries, Amendment 4

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

ACTION: Notice of agency decision.

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SUMMARY: NMFS announces the approval of four supplemental amendments to 
Amendment 4 to the Fishery Management Plan (FMP) for the Precious Coral 
Fisheries of the Western Pacific Region (Amendment 4); Amendment 6 to 
the FMP for the Bottomfish and Seamount Groundfish Fisheries of the 
Western Pacific Region (Amendment 6); Amendment 8 to the

[[Page 46113]]

FMP for the Pelagic Fisheries of the Western Pacific Region (Amendment 
8); and Amendment 10 to the FMP for the Crustacean Fisheries of the 
Western Pacific Region (Amendment 10). The supplemental amendments make 
the four FMPs consistent with the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act), as amended by the 
Sustainable Fisheries Act of 1996 (SFA).

DATES: This agency decision is effective July 3, 2003.

ADDRESSES: Copies of the supplemental FMP amendments, including the 
Environmental Assessment may be obtained from Ms. Kitty Simonds, 
Executive Director, Western Pacific Regional Fishery Management 
Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813.

FOR FURTHER INFORMATION CONTACT: Paul Dalzell, Western Pacific Fishery 
Management Council, at 808-522-8220.

SUPPLEMENTARY INFORMATION: On July 3, 2003, NMFS approved supplemental 
amendments to FMP Amendment 4, Amendment 6, Amendment 8, and Amendment 
10 to address portions of previously submitted amendments that were 
disapproved by NMFS in 1999 because of inconsistency with the Magnuson-
Stevens Act, as amended by the SFA. Generally, the amendments pertain 
to overfishing definitions and control rules for the bottomfish and 
seamount groundfish, pelagics, and crustacean FMPs; bycatch provisions 
for fisheries operating under the bottomfish and seamount groundfish 
and pelagic FMPs; and definitions for ``fishing communities'' in Hawaii 
under the bottomfish and seamount groundfish, pelagics, crustaceans, 
and precious corals FMPs. The supplemental FMP amendments do not revise 
the existing management regime; therefore, rulemaking is not required. 
Additional background information may be found in the preamble to the 
Notice of Availability for the supplemental FMP amendments (68 FR 
16754, April 7, 2003) and is not presented here.

Comments and Responses

    Comment 1: NMFS received comments urging the Secretary of Commerce 
to enforce the conservation measures in the Northwestern Hawaiian 
Islands Coral Reef Ecosystem Reserve (Reserve).
    Response: The supplemental FMP amendments do not contain management 
measures that affect management of the Reserve. The specification of 
status determination criteria for overfishing established for the four 
FMPs governing the fisheries in the western Pacific region, including 
American Samoa, Guam, Hawaii, and the Commonwealth of the Northern 
Mariana Islands, do not have an impact on Executive Order 13178 and 
Executive Order 13196, which created the Reserve. These criteria, which 
are consistent with NMFS' national guidelines, do not in themselves 
require that fishing take place or that it takes place at any 
particular level. NMFS recognizes that the Executive Orders are 
currently in effect, including Reserve Preservation Areas and certain 
other conservation measures that either completely prohibit fishing or 
allow fishing in accordance with restrictions that are applicable in 
the Reserve.
    Comment 2: One commenter stated that the supplemental amendments 
provided incorrect information about the Northwestern Hawaiian Islands 
Coral Reef Ecosystem Reserve, specifically that they quoted Section 
7(a)(1)(C) of Executive Order 13178 while failing to note that section 
had been revised by Executive Order 13196, giving it a different 
meaning.
    Response: NMFS concurs that the supplemental FMP amendments could 
provide a better description of the Executive Orders. Clarification is 
provided here. Consistent with Executive Order 13196, Section 
7(a)(1)(C) of Executive Order 13178 specifies that:
    ``(C) The annual level of aggregate take under all permits of any 
particular type of fishing may not exceed the aggregate level of take 
under all permits of that type of fishing as follows:
    (1) Bottomfishing the annual aggregate level for each permitted 
bottomfisher shall be that permittee's individual average taken over 
the 5 years preceding December 4, 2000, as determined by the Secretary, 
provided that the Secretary, in furtherance of the principles of the 
reserve, may make a one-time reasonable increase to the total aggregate 
to allow for the use of two Native Hawaiian bottomfishing permits;
    (2) All other commercial fishing the annual aggregate level shall 
be the permittee's individual take in the year preceding December 4, 
2000, as determined by the Secretary.
    Comment 3: One commenter stated that the overfishing criteria 
specified in the crustaceans FMP are not consistent with the Executive 
Orders establishing the Northwestern Hawaiian Islands Coral Reef 
Ecosystem Reserve, specifically Section 7 (a)(1)(C) of Executive Order 
13178. The commenter believes that the proper interpretation of that 
section is that lobster fishing is prohibited within the Reserve, and 
recommends that the discussion of overfishing and control rules for the 
commercial lobster fishery be removed from the supplemental amendments 
unless it is clear that they pertain only to areas outside the Reserve.
    Response: The preferred alternative of status determination 
criteria in the supplemental FMP amendments do not introduce any 
inconsistencies or conflicts with the Executive Orders that established 
the Reserve. These criteria do not in themselves mandate that 
commercial lobster fishing take place or that it takes place at any 
particular level. They only describe how overfishing would be defined, 
as expressed in terms of the two thresholds: the minimum stock size 
threshold and the maximum fishing mortality threshold. These 
definitions are consistent with NMFS' national guidelines
    Comment 4: One commenter stated that the environmental assessments 
for the three supplemental FMP amendments did not consider a wide 
enough range of alternatives with respect to the overfishing criteria 
(including alternative proxies that could be used in those criteria) 
and the target and rebuilding control rules and associated reference 
points.
    Response: The preferred alternative (control rules and thresholds) 
in the supplemental FMP amendments is scientifically sound and 
consistent with the applicable guidelines. NMFS scientists assisted the 
Council in developing status determination criteria (overfishing 
definitions), guided by the ``Technical Guidance on the Use of 
Precautionary Approaches to Implementing National Standard 1 of the 
Magnuson-Stevens Fishery Conservation and Management Act.'' (NOAA 
Technical Memo NMFS-F/SPO-31, August 1998). NMFS recognizes that 
relatively few alternatives were considered, but finds that the range 
was adequate given the number of reasonable alternatives that were 
available. That number is relatively small because of the limited data 
that are available for the stocks. For example, in the case of the 
Bottomfish and Seamount Groundfish FMP, for which the commenter was 
specifically concerned about the failure to consider alternative 
proxies other than catch-per-unit-effort (CPUE), the data-poor nature 
of the stocks in much of the region means that very few proxies for 
biomass other than CPUE would be practical.
    Comment 5: One commenter stated that a programmatic environmental 
impact statement on the associated fisheries should be prepared in 
order to ensure that, in the face of existing uncertainties, the 
fishery management

[[Page 46114]]

regimes for these fisheries are conducted in an environmentally sound 
manner.
    Response: A final environmental impact statement (FEIS) for the 
Fishery Management Plan for the Pelagic Fisheries of the Western 
Pacific Region was completed in March 2001. A supplemental pelagic 
fisheries EIS has been proposed to cover additional issues, such as the 
potential development of a pelagic squid fishery based in Hawaii. Draft 
EISs for the Council's Bottomfish, Crustaceans, and Precious Corals 
Fishery Management Plans are either under review by NMFS or under 
preparation. NMFS will consider the need for a programmatic EIS apart 
from these supplemental amendments.
    Comment 6: One commenter stated that the definitions of 
``overfished'' and ``overfishing'' should be broadened to account for 
adverse effects from ecosystem overfishing and control rules and other 
management procedures should be developed that require consistent, 
rigorous, and systematic evaluation of potential adverse effects of 
fishing activities.
    Response: The recommendation to expand the definitions of 
``overfished'' and ``overfishing'' is acknowledged, but these 
supplemental FMP amendments are not the appropriate place to implement 
such changes. In NMFS' National Standard Guidelines, stock or stock 
complex is used synonymously for ``fishery''; that is, as one or more 
stocks of fish that can be treated as a unit for the purposes of 
conservation and management and that are identified on the basis of 
geographic, scientific, technical, recreational, or economic 
characteristics. The guidelines make the terms operational by requiring 
that FMPs specify, to the extent possible, objective and measurable 
status determination criteria, including control rules, for each stock 
or stock complex. The criteria must specify both a maximum fishing 
mortality threshold (MFMT) and a minimum stock size threshold (MSST), 
or reasonable proxies thereof. NMFS finds that the supplemental FMP 
amendments satisfy these requirements.
    Comment 7: One commenter stated that the supplemental amendments do 
not include a suitable discussion of seamount groundfish species; 
specifically, what it means exactly that armorhead will serve as an 
indicator species for the other seamount groundfish species.
    Response: Seamount groundfish management unit species in the 
Fishery Management Plan for Bottomfish and Seamount Groundfish 
Fisheries of the Western Pacific Region (Bottomfish FMP) include only 
alfonsin (Beryx splendens), raftfish (Hyperoglyphe japonica)), and 
armorhead (Pseudopentaceros richardsoni), and of these three species 
armorhead dominated the historical catch by number, weight, and value. 
Armorhead is the primary target species in this fishery, which has been 
closed since 1986. Regarding indicator species, NMFS will manage this 
fishery on the basis of established reference points for the armorhead 
(indicator species or key target species) and, to the extent possible, 
manage the other minor species based on the indicator species.
    Comment 8: One commenter stated that using a single natural 
mortality rate of 0.3 for the entire bottomfish species complex would 
likely be inaccurate for many of the species; additional alternatives 
should be considered.
    Response: The supplemental FMP amendments for the bottomfish FMP 
specify that a single natural mortality rate (M) will be used to assess 
the status of multi-species stock complexes in cases where individual 
species cannot be assessed, but it does not specify that a natural 
mortality rate of 0.3 will be used. Instead, the latest available 
estimate will be used, and the range of M among species within a stock 
complex will be taken into consideration.
    Comment 9: Several commenters questioned the use of multi-species 
complexes. One commenter stated that individual species should not be 
combined into complexes for the purpose of allowing fishing on those 
complexes or assessing the effects of fishing on them. One commenter 
stated that the use of the mixed stock exception in the national 
standard guidelines is an inappropriate manner in which to manage 
marine fish species, that it is contrary to the requirements of the 
Magnuson-Stevens Act, and that it should not be considered in the 
amendments. One commenter stated that consideration should be given to 
breaking down the bottomfish complex into at least three components 
based on families or other applicable subdivisions as an interim step 
towards generating individual species status determination criteria.
    Response: The overfishing criteria and control rules will be 
applied to individual species whenever possible, and only where it is 
not possible will they be applied to indicator species or multi-species 
complexes. The fishery that targets the bottomfish species complexes 
fishes simultaneously for many different species. Although catch data 
by species are available, NMFS does not have fishing effort data on a 
species-by-species basis. Since fishing effort cannot be partitioned 
among the various species, a multi-species approach to the overfishing 
assessment will be used, consistent with the National Standard 
Guidelines.
    Comment 10: One commenter stated that the supplemental amendment 
for bottomfish and seamount groundfish provides an unclear definition 
of the minimum stock size threshold (MSST); specifically, no 
information is given to clarify the meaning of the phrase ``c = max (1-
M, 0.5).''
    Response: In the specifications of the MSST and MFMT, c is a scaler 
that modifies Bmsy. The phrase ``c = max (1-M, 0.5)'' means 
that c is equal to whichever is greater, 1-M or 0.5, where M is the 
natural mortality rate or instantaneous natural mortality rate. If M is 
greater than or equal to 0.5, then c is equal to 0.5; if M is less than 
0.5, then c is equal to 1-M.
    Comment 11: One commenter stated that the supplemental amendments 
need to specify objective and measurable status determination criteria, 
not merely a framework for doing so.
    Response: NMFS finds that the supplemental FMP amendments do more 
than establish a framework for specifying objective and measurable 
status determination criteria; they actually specify those criteria, 
including the MSST and the MFMT, and they do so largely following the 
default recommendations in NMFS' ``Technical Guidance on the Use of 
Precautionary Approaches to Implementing National Standard 1 of the 
Magnuson-Stevens Fishery Conservation and Management Act.''
    Comment 12: One commenter stated that for the pelagic stocks, since 
the fishing mortality rate associated with maximum sustainable yield (F 
at MSY), the biomass associated with MSY (B at MSY), and the natural 
mortality rate (M) can be directly estimated for some species, the 
supplemental amendments should state where this information is 
available and propose a range of values for public consideration.
    Response: Although M, F at MSY, and B at MSY have been estimated 
and are currently available for some of the pelagic stocks, the Council 
has determined that rather than specifying such values in the Pelagics 
FMP and treating them as constants, the preferred method is to use the 
best available estimate of each of them at the time of a given 
assessment. NMFS agrees that this is a sound approach, both because 
they are in fact variables that are subject to change and because our 
ability to

[[Page 46115]]

estimate them is likely to improve with time. The latest available 
values will be published in the Stock Assessment and Fishery Evaluation 
report, which for the pelagics fisheries is the Council's Annual Report 
on Pelagic Fisheries in the Western Pacific. To give an idea of the 
range of values that is likely to be used in the assessments, the 
supplemental FMP amendments refer to previous estimates that have been 
made.
    Comment 13: Several commenters stated that the supplemental 
amendments should include additional information on stock status; 
methods of assessment, including a discussion of the methodologies to 
be used in estimating biomass for the crustacean stocks; potential 
sources of error, bias, and uncertainty; and the potential consequences 
of such information (or lack thereof) on management of fisheries at low 
stock levels.
    Response: The supplemental FMP amendments do not provide detailed 
information regarding available information on stock status; methods of 
assessment (including assessment of biomass for crustacean stocks); 
potential sources of error, bias, and uncertainty; and the potential 
consequences of such information on management of fisheries at low 
stock levels. The supplemental amendments focus on establishing a 
control rule framework within which stock assessments would be 
performed rather than describing the operational aspects of stock 
assessment. By prescribing assessment methods and information sources 
in only general terms, the supplemental amendments implicitly allow 
flexibility in those methods and information sources. As stated in the 
supplemental FMP amendments, the best available information will be 
used in the stock assessments. The sources of error, bias, and 
uncertainty associated with a given assessment will be identified and 
evaluated to the extent necessary at the time of the assessment, as 
will their implications in terms of the overfishing thresholds and 
other reference points and the possible need for management action, as 
prescribed by the control rules.
    Comment 14: Several commenters questioned the use of catch-per-
unit-effort (CPUE) as a proxy in the status determination criteria. One 
commenter stated that the various sources of bias related to CPUE make 
its use as a measure of fishing mortality rate and stock biomass 
unacceptable, and that before any fisheries on these stocks are 
initiated or expanded, NMFS should develop reliable methods for 
assessing stock status and fishing mortality rate. One commenter stated 
that the supplemental amendments for the bottomfish and pelagics FMPs 
should include a full discussion of the use of CPUE as a proxy for 
status determination criteria, including how it will be estimated, how 
CPUE or fishing effort will be used to estimate an unfished biomass, 
optimum yield (OY) or MSY level, how the use of CPUE will avoid the 
pitfalls or make the adjustments presented in the Technical Guidance, 
and consideration of alternative proxies.
    Response: NMFS agrees that using CPUE as an indicator of stock 
biomass is associated with some uncertainty and biases. However, the 
same is true with all stock assessment methods; there is no practical 
way to directly measure stock biomass. As indicated in the supplemental 
FMP amendments, the CPUE estimates will be standardized for all 
identifiable biases, as will the fishing effort estimates that will be 
used as proxies for fishing mortality.
    Comment 15: One commenter stated that because the supplemental 
amendments for bottomfish and seamount groundfish and for pelagics do 
not specify an OY and the supplemental amendment for crustaceans does 
not specify a biomass at the OY level, the supplemental amendments are 
inconsistent with the requirements of the Magnuson-Stevens Act and the 
National Standard Guidelines.
    Response: OY has already been specified in each of the FMPs 
(bottomfish/seamount groundfish, precious corals, crustaceans, and 
pelagics. The supplemental FMP amendments for the bottomfish and 
pelagics fisheries do not modify the existing specifications; that is, 
they do not specify target controls rules that would be associated with 
those OY specifications. The Council has determined that it would be 
preferable to continue to manage the fisheries using the existing 
qualitative OY specifications rather than specifying new OY control 
rules and associated reference points (e.g., that would be expressed in 
terms of target harvest levels, target fishing mortality, or target 
biomass). One reason cited is the lack of information available to 
quantitatively determine OY and its associated fishing mortality rate 
with any useful degree of precision. Because of that lack of 
information, specification of a target control rule could unnecessarily 
constrain the FMPs' existing definitions of OY. The Council has 
determined that it would be preferable not to specify an OY control 
rule at this time rather than to specify one that is likely to be 
poorly related to actual OY. Although NMFS finds that the specification 
of OY control rules can, in some cases, be useful in satisfying the 
objectives associated with National Standard 1, especially for 
fisheries in which the relevant social, economic, and ecological 
factors can be readily identified and measured, they are not necessary 
and are not always appropriate. NMFS finds that the existing 
specifications of OY in the bottomfish and pelagics FMPs satisfy the 
requirements of the Magnuson-Stevens Act.
    Comment 16: One commenter stated that the supplemental amendment 
for the crustaceans FMP provides no information on how biomass (B) will 
be computed, so it is not possible to analyze the interplay of the 
coefficient r, which is a fishing mortality rate that would yield a 10-
percent risk of the Spawning Potential Ratio (SPR) reaching as low as 
20 percent, in the target control rule. There is also insufficient 
information to analyze the precautionary nature of the target control 
rule. With no information provided on the MFMT, it is impossible to 
tell how the target control rule operates. There is no information 
explaining or justifying the appropriateness of a 20 percent SPR level 
to serve as a threshold for recruitment overfishing, a level that was 
established in 1990, in light of the new 1996 requirements of the 
Magnuson-Stevens Act and its accompanying guidance.
    Response: In this case, the target control rule is directly 
associated with Optimum Yield, the target yield under the Magnuson-
Stevens Act. The OY target reference points are a function of M, B, and 
B at MSY and are precautionary in the sense that they are MSY reference 
points (i.e., Fmsy), scaled to account for social and 
economic factors, as well as biological, environmental, and model 
parameter uncertainty. The coefficient r, as specified in the control 
rule (see; Supplemental FMP Amendments on Overfishing Provisions on 
Page 56, Section 4.3, Fig. 6), is equivalent to Frisk-
averse/Fmsy. Frisk-averse is defined as the 
fishing mortality that results in a 10-percent chance of the SPR 
falling below 20 percent, based on a risk-averse stock assessment 
model. Because of the risk-averse nature of the assessment model, 
Frisk-averse is assumed equivalent to the optimum fishing 
mortality, Foy, and less than Fmsy. The current 
assessment model assumes higher than estimated levels of process and 
measurement error, as well as conservative estimates of demographic 
parameters, which when considered together, represent a

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worst-case scenario (DiNardo, G.T. and J.A. Wetherall, 1999, 
``Accounting for Uncertainty in the Development of Harvest Strategies 
for the Northwestern Hawaiian Islands Lobster-trap Fishery'', ICES J. 
Mar. Sci., 56:943-951). Additional sources of error or uncertainty that 
influence Frisk-averse and ultimately r, could be easily 
incorporated using this approach.
    Comment 17: One commenter stated that the supplemental amendments 
fail to consider a broad range of bycatch minimization alternatives and 
bycatch reporting alternatives.
    Response: NMFS agrees that a large number of bycatch minimization 
tools and bycatch reporting tools exist, and that not all such tools 
were considered in the supplemental FMP amendments. Some were not 
considered because they are already being implemented under the 
existing management regime, as described in sections 4.1 and 4.2 of the 
supplemental amendment document for bycatch provisions. A relatively 
small number of alternatives that focused on those areas were then 
considered Discussion of the reasons for eliminating alternatives from 
the broader pool of potential alternatives would have been desirable. 
However, NMFS finds that the range of alternatives considered is 
adequate given the existing bycatch patterns and bycatch reporting 
methodologies in the affected fisheries. The agency recognizes that 
achieving consistency with the bycatch-related provisions of the 
Magnuson-Stevens Act is an ongoing process that will require periodic 
identification of areas in which bycatch might be further reduced and 
bycatch reporting might be further improved, followed by consideration 
of a range of reasonable alternatives for each of those areas.
    Comment 18: One commenter stated that the supplemental amendments 
fail to provide bycatch minimization and assessment measures that are 
consistent with the requirements of the Magnuson-Stevens Act, in part 
because some of the measures would be implemented only at the 
discretion of NMFS or the Council.
    Response: A central purpose of the supplemental FMP amendments is 
to describe the existing situation with respect to bycatch patterns, 
bycatch minimization measures, and bycatch reporting measures. NMFS 
finds that the supplemental amendments accomplish this purpose. The 
amendments also serve the purpose of identifying weaknesses in the 
bycatch reporting systems and identifying areas in which bycatch or 
bycatch mortality might be successfully further reduced. However, 
identification of such weaknesses and areas for improvement does not in 
itself mean that management action is required. The need to minimize 
bycatch and bycatch mortality and to establish a standardized bycatch 
reporting methodology must be balanced against other requirements of 
the Magnuson-Stevens Act, including the need to achieve OY (National 
Standard 1), the need to consider efficiency in the utilization of 
fishery resources (National Standard 5), and the need to minimize costs 
(National Standard 7). For similar reasons, the fact that some of the 
management actions under the preferred alternative will be taken at the 
discretion of the Council and/or NMFS does not mean that the actions 
are inconsistent with National Standard 9. NMFS finds that the existing 
bycatch-related management measures in the bottomfish and pelagics 
FMPs, combined with the additional actions that would be taken under 
the supplemental amendments, which include outreach to fishermen, 
research into fishing gear and method modifications, research into 
market development for discarded species, and improvement of 
information systems, satisfy the requirements of the Magnuson-Stevens 
Act. At the same time, NMFS recognizes the need to continue to reduce 
bycatch and bycatch mortality, and to continue to improve, where cost-
effective, the standardized bycatch reporting methodologies.

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

    Dated: July 31, 2003.
Bruce C. Morehead,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 03-19932 Filed 8-4-03; 8:45 am]
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