[Federal Register Volume 68, Number 171 (Thursday, September 4, 2003)]
[Rules and Regulations]
[Pages 52519-52523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22455]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 030602142-3212-02; I.D.051403C]
RIN 0648-AQ68


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Amendment 17

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

ACTION: Final rule.

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

SUMMARY: NMFS issues this final rule to implement Amendment 17 to the 
Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 17 
changes the Pacific Fishery Management Council's (Council's) annual 
groundfish management process from an annual to a biennial process. 
Amendment 17 is intended to ensure that the specifications and 
management measures process comports with a Federal Court ruling, to 
make the Council's development process for specifications and 
management measures more efficient so that more time is available for 
other management activities, and to streamline the NMFS regulatory 
process for implementing the specifications and management measures.

DATES: Effective October 6, 2003.

ADDRESSES: Copies of Amendment 17 and the environmental assessment/ 
regulatory impact review/initial regulatory flexibility analysis (EA/
RIR/IRFA) are available from Donald McIsaac, Executive Director, 
Pacific Fishery Management Council, 7700 NE Ambassador Place, Portland, 
OR 97220, phone: 503-820-2280.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier (Northwest Region, 
NMFS), phone: 206-526-6140; fax: 206-526-6736 and; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the Internet 
at the website of the Office of the Federal Register at: http://www/
access/gpo.gov/su_docs/aces140.html.

Background

    A Notice of Availability for Amendment 17 to the FMP was

[[Page 52520]]

published on May 22, 2003 (68 FR 27972). NMFS requested comments on the 
amendment under Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) FMP amendment review provisions for a 60-day 
comment period, ending July 21, 2003. A proposed rule to implement 
Amendment 17 was published on June 13, 2003 (68 FR 35354). NMFS 
requested comment on the proposed rule through July 28, 2003. During 
the comment periods on the amendment and proposed rule, NMFS received 
two letters of comment, which are addressed later in the preamble to 
this final rule. Please see the preamble to the proposed rule for 
additional background on the fishery and on this rule. Further detail 
on Amendment 17 also appears in the EA/RIR/IRFA prepared by NMFS for 
this action.
    NMFS approved Amendment 17 on August 20, 2003. Amendment 17 changes 
the Council's groundfish management process and the NMFS implementation 
process for specifications and management measures from an annual to a 
biennial process. Amendment 17 also structures Council development of 
specifications and management measures so that NMFS has adequate time 
to implement the biennial specifications and management measures 
through a notice-and-comment rulemaking. In the FMP, references to the 
annual specifications process are revised and the biennial fishing 
period is defined as being the new time unit for specifications and 
management measures implementation. The regulations to implement 
Amendment 17 primarily revise references to the annual specifications 
and management measures process in the Federal groundfish regulations 
at 50 CFR 660.301-360 so that they reflect the new biennial 
specifications and management measures process. Amendment 17 does not 
introduce new regulations or revisions to existing regulations that 
affect how the groundfish fleets conduct their fishing operations, 
which is the primary focus of Federal groundfish fishery regulations.

Comments and Responses

    NMFS received two letters of comment on the proposed rule for 
Amendment 17. One letter was received from the U.S. Department of the 
Interior, providing general support for a more workable approach to 
groundfish management that provides adequate opportunity for public 
review and comment on changes to fishery regulations. The second letter 
was received from an environmental advocacy organization and contained 
more specific comments, which are addressed here:
    Comment 1: We believe that a sentence in the proposed rule at 50 
CFR 660.323(b)(1)(i) needs to be altered. That sentence, as laid out in 
the proposed rule reads: ``Trip landing and frequency limits and size 
limits for species with those limits designated as routine may be 
imposed or adjusted on a biennial or more frequent basis for the 
purpose of keeping landings within the harvest levels announced by 
NMFS, and for the other purposes given in paragraph (b)(1)(i)(A) and 
(B) of this section.'' We believe that the sentence should read: ``Trip 
landing and frequency limits and size limits for species with those 
limits designated as routine may be imposed or adjusted on an inseason 
basis for the purpose of keeping landings within the harvest levels 
announced by NMFS, and for the other purposes given in paragraph 
(b)(1)(i)(A) and (B) of this section.'' We think that the current 
language implies that parts of the biennial specifications could be 
established for the two-year period without notice and comment, which 
is not consistent with applicable law.
    Response: The suggested change is unnecessary. The regulations say 
that ``routine management measures'' may be imposed or adjusted on a 
biennial or more frequent basis. This does not, however, mean that some 
measures in the biennial specifications and management measures package 
will be imposed without notice and comment rulemaking, just because 
some of the management measures will have been designated routine. The 
regulations at 660.323(b) state that management measures that have been 
designated as routine may be imposed through a single Federal Register 
document if good cause exists under the Administrative Procedure Act to 
waive notice and comment. Therefore, the regulations recognize the 
legal obligation to provide prior notice and an opportunity for public 
comment in order to change any regulation, while stating that in 
certain, limited circumstances this requirement may be waived. In 
addition, the regulations at 660.321 (a) state that management will be 
consistent with standards and procedures in the FMP. The FMP, as 
amended by this Amendment 17, establishes a biennial management process 
for establishing the specifications and management measures that 
specifically includes time for a notice and comment rulemaking.
    Finally, it would not be accurate to say routine management 
measures may only be imposed or adjusted on an inseason basis, because 
they are also imposed or adjusted during the biennial process. During 
the biennial process being established by this Amendment 17, however, 
they will be imposed using notice and comment rulemaking.
    Comment 2: We also believe that, in 50 CFR 660.323(b)(1)(i), the 
last phrase of the paragraph, in referencing paragraphs
    Sec.  660.323(b)(1)(i)(A) and (B), could be read to authorize 
altering trip landing and frequency limits and size limits without 
notice and comment where the alteration might cause an exceedance of 
previously specified harvest levels, in order to ``extend the fishing 
season'' or ``minimize disruption of traditional fishing and marketing 
patterns.'' We recommend that NMFS add the phrase ``so long as the 
change in trip landing limits, trip frequency limits, or size limits 
would not result in total fishing mortality greater than previously 
specified harvest levels'' at the end of 660.323(b)(1)(i).
    Response: The comment is beyond the scope of this rulemaking. The 
proposal this action implements is the multiyear management process, 
and regulatory changes are only being imposed to cover that action. The 
comment suggests revising language regarding the inseason adjustment 
process. However, the overriding direction for management measures, 
whether established preseason or adjusted inseason is to achieve, but 
not exceed, the specifications.

Classification

    The Administrator, Northwest Region, NMFS, has determined that 
Amendment 17 is necessary for the conservation and management of the 
Pacific coast groundfish fishery and that it is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) 
describing the impact of this action on small entities. The initial 
regulatory flexibility analysis (IRFA) was summarized in the proposed 
rule on June 13, 2003 (68 FR 35354). The following is a summary of the 
FRFA.
    Amendment 17 revises the Pacific Fishery Management Council's 
(Council's) annual groundfish management process so that it becomes a 
biennial process with time for notice and comment rulemaking to 
implement the biennial specifications and management measures. 
Amendment 17 is intended to ensure that the

[[Page 52521]]

specifications and management measures process responds to a court 
ruling in Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 
904 (9\th\ Cir. 2002), to make the Council's development process for 
specifications and management measures more efficient in order to allow 
time for other management activities, and to streamline the NMFS 
regulatory process for implementing the specifications and management 
measures.
    The comment period on this proposed rule (68 FR 35354, June 13, 
2003) for this action ended on July 28, 2003. The agency received 2 
letters of comment on the proposed rule, but none of the comments 
received addressed the IRFA. Comments on the proposed rule are 
addressed in the ``Comments and Responses'' section of this final rule.
    This final rule will affect all participants in the West Coast 
groundfish fisheries. Approximately 2,000 vessels participate in the 
West Coast groundfish fisheries. Of those, about 500 vessels are 
registered to limited entry permits issued for either trawl, longline, 
or pot gear. About 1,500 vessels land groundfish against open access 
limits while either directly targeting groundfish or taking groundfish 
incidentally in fisheries directed at non-groundfish species. All but 
10-20 of those vessels are considered small businesses by the Small 
Business Administration. There are also about 450 groundfish buyers on 
the West Coast, approximately 5 percent of which are responsible for 
about 80 percent of West Coast groundfish purchases. In the 2001 
recreational fisheries, there were 106 Washington charter vessels 
engaged in salt water fishing outside of Puget Sound, 232 charter 
vessels active on the Oregon coast and 415 charter vessels active on 
the California coast.
    This final rule does not impose any new reporting or recordkeeping 
requirements.
    This rule is administrative in nature and is expected to have only 
a minimal economic impact on small entities. The action would maximize 
time for stock assessment scientists, Council staff, and NMFS staff to 
prepare documentation needed to implement specifications and management 
measures without disrupting the historic January 1 season start date. 
Under the proposed measure, vessel operators should be able to take 
advantage of whichever seasonal markets best fit their needs. Small 
vessel operators should not be forced to fish during inclement weather 
because of concerns about fishery closures during spring and summer 
months. Vessel operators afforded the privilege of fishing for both 
Dungeness crab and groundfish, or groundfish and shrimp, should be able 
to time their fishing trips based on the migratory patterns of their 
target species and the needs of their own marketing strategies and 
those of their associated processors. While implementing multi-year 
groundfish management will not alleviate all season-related management 
problems for fisheries participants, it should be a positive step 
toward improving the stability and certainty of seasonal groundfish 
allocations for participating harvesters. The improved science and 
management made possible with multi-year planning will help mitigate 
the closure cycle by stabilizing groundfish allocations and landings 
throughout the season.
    The Council considered 4 alternatives to the proposed measure 
including a status quo alternative. All alternatives, with the 
exception of the status quo, would implement biennial specifications. 
Two of these alternatives considered a March 1 start date with 
different Council meeting schedules, and one alternative considered a 
May 1 start date. Given closure trends under the status quo, a March 1 
start date would likely result in early allocation attainment and 
closures during December-February. The negative effects of this closed 
period would primarily be felt by vessels and processors that rely on 
the mid-winter flatfish fishery. Many West Coast flatfish species 
aggregate more closely during the winter months, lowering the bycatch 
rates of non-flatfish species in flatfish-directed fisheries. As with 
the status quo, recreational fishing tends to be slow during the winter 
months. Given closure trends under the status quo, a May 1 start date 
would likely result in early allocation attainment and closures during 
February-April period. This schedule would keep the fisheries open 
through stronger flatfish months and allow participants to switch 
between flatfish and Dungeness crab at will. A February-April 
groundfish closure could also have the negative effect of a very lean 
3-month period between Dungeness crab fishing/processing season and the 
shrimp, salmon and albacore seasons. For some of the small boat 
fishers, this alternative could also mean a lack of fishing opportunity 
in their traditional start-up fishing months. Early spring recreational 
fishing opportunities could also be curtailed under this schedule.
    The economic effects of changing the fishing year start date vary 
with each option and vary by which fishery sectors they affect. In 
general, the difference between the economic effects of a January 1 
start date and a March 1 start date are neutral. A May 1 start date, 
however, would notably shift fishing effort and could result in small 
businesses having to reconsider their business practices and reschedule 
their fishing operations.
    The Council will retain a 1-year specification of ABC and OY. This 
represents no change and will have no economic impact to vessels 
affected by the proposed rule. The Council also considered a two-year 
specification period. However, since early attainment of OY could 
lengthen closure periods under a 2-year specification of these targets, 
this alternative would be expected to have a potentially adverse 
economic impact on vessel profitability. With 2-year OYs, management 
measures would need to be more conservative at the start of the 2-year 
fishing period to hedge against early closures during the second year 
in the fishing period. The Council also considered a mixture of 1-year 
and 2-year specifications for different groundfish species. This 
approach could also have a potentially adverse economic impact on 
vessel profitability for vessels fishing under two-year specifications 
for the reasons listed above.
    Compliance requirements do not go beyond general compliance 
requirements for operating in the Pacific Coast groundfish fishery.

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: August 27, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

0
l. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.302, a new definition for ``Biennial fishing period'' 
is added and the definitions for ``Fishing year,'' and ``Reserve,'' are 
revised to read as follows:


Sec.  660.302  Definitions.

* * * * *
    Biennial fishing period means a 24-month period beginning at 0001 
local

[[Page 52522]]

time on January 1 and ending at 2400 local time on December 31 of the 
subsequent year.
* * * * *
    Fishing year is the year beginning at 0001 local time on January 1 
and ending at 2400 local time on December 31 of the same year. There 
are two fishing years in each biennial fishing period.
* * * * *
    Reserve means a portion of the harvest guideline or quota set aside 
at the beginning of the fishing year or biennial fishing period to 
allow for uncertainties in preseason estimates.
* * * * *

0
3. In Sec.  660.321, paragraphs (a) through (c) are revised to read as 
follows:


Sec.  660.321  Specifications and management measures.

    (a) General. NMFS will establish and adjust specifications and 
management measures biennially or annually and during the fishing year. 
Management of the Pacific Coast groundfish fishery will be conducted 
consistent with the standards and procedures in the PCGFMP and other 
applicable law. The PCGFMP is available from the Regional Administrator 
or the Council.
    (b) Biennial actions. The Pacific Coast Groundfish fishery is 
managed on a biennial, calendar year basis. Harvest specifications and 
management measures will be announced biennially, with the harvest 
specifications for each species or species group set for two sequential 
calendar years. In general, management measures are designed to 
achieve, but not exceed, the specifications, particularly optimum 
yields (harvest guidelines and quotas), commercial harvest guidelines 
and quotas, limited entry and open access allocations, or other 
approved fishery allocations, and to protect overfished and depleted 
stocks.
    (c) Routine management measures. Management measures designated 
``routine'' at Sec.  660.323(b) may be adjusted during the fishing year 
after recommendation from the Council, approval by NMFS, and 
publication in the Federal Register.
* * * * *

0
4. In Sec.  660.323, paragraphs (a)(2)(ii)(C)(1), (a)(3)(i)(A)(1), 
(a)(3)(vi) introductory text, paragraph (b) introductory text, and 
paragraphs (b)(1)(i) introductory text and (b)(1)(ii) are revised to 
read as follows:


Sec.  660.323  Catch restrictions.

    (a)* * *
    (2)* * *
    (ii)* * *
    (C) Cumulative limits. (1) A vessel participating in the primary 
season will be constrained by the sablefish cumulative limit associated 
with each of the permits registered for use with that vessel. The 
Regional Administrator will biennially or annually calculate the size 
of the cumulative trip limit for each of the three tiers associated 
with the sablefish endorsement such that the ratio of limits between 
the tiers is approximately 1:1.75:3.85 for Tier 3:Tier 2:Tier 1, 
respectively. The size of the cumulative trip limits will vary 
depending on the amount of sablefish available for the primary fishery 
and on estimated discard mortality rates within the fishery. The size 
of the cumulative trip limits for the three tiers in the primary 
fishery will be announced in the Federal Register.
* * * * *
    (3)* * *
    (i)* * *
    (A)* * *
    (1) Procedures. The primary seasons for the whiting fishery north 
of 40[deg]30' N. lat. generally will be established according to the 
procedures of the PCGFMP for developing and implementing harvest 
specifications and apportionments. The season opening dates remain in 
effect unless changed, generally with the harvest specifications and 
management measures.
* * * * *
    (vi) Bycatch reduction and full utilization program for at-sea 
processors (optional). If a catcher/processor or mothership in the 
whiting fishery carries more than one NMFS-approved observer for at 
least 90 percent of the fishing days during a cumulative trip limit 
period, then groundfish trip limits may be exceeded without penalty for 
that cumulative trip limit period, if the conditions in paragraph 
(a)(3)(vi)(A) of this section are met. For purposes of this program, 
``fishing day'' means a 24-hour period, from 0001 hours through 2400 
hours, local time, in which fishing gear is retrieved or catch is 
received by the vessel, and will be determined from the vessel's 
observer data, if available. Changes to the number of observers 
required for a vessel to participate in the program will be announced 
prior to the start of the fishery, generally concurrent with the 
harvest specifications and management measures. Groundfish consumed on 
board the vessel must be within any applicable trip limit and recorded 
as retained catch in any applicable logbook or report. [Note: For a 
mothership, non-whiting groundfish landings are limited by the 
cumulative landings limits of the catcher vessels delivering to that 
mothership.]
* * * * *
    (b) Routine management measures. In addition to the catch 
restrictions in this section, other catch restrictions that are likely 
to be adjusted on a biennial or more frequent basis may be imposed and 
announced by a single notification in the Federal Register if good 
cause exists under the APA to waive notice and comment, and if they 
have been designated as routine through the two-meeting process 
described in the PCGFMP. The following catch restrictions have been 
designated as routine:
    (1) Commercial limited entry and open access fisheries--(i) Trip 
landing and frequency limits, size limits, all gear. Trip landing and 
frequency limits have been designated as routine for the following 
species or species groups: widow rockfish, canary rockfish, yellowtail 
rockfish, Pacific ocean perch, yelloweye rockfish, splitnose rockfish, 
bocaccio, cowcod, minor nearshore rockfish or shallow and deeper minor 
nearshore rockfish, shelf or minor shelf rockfish, and minor slope 
rockfish; DTS complex which is composed of Dover sole, sablefish, 
shortspine thornyheads, and longspine thornyheads; petrale sole, rex 
sole, arrowtooth flounder, Pacific sanddabs, and the flatfish complex, 
which is composed of those species plus any other flatfish species 
listed at Sec.  660.302; Pacific whiting; lingcod; and ``other fish'' 
as a complex consisting of all groundfish species listed at Sec.  
660.302 and not otherwise listed as a distinct species or species 
group. Size limits have been designated as routine for sablefish and 
lingcod. Trip landing and frequency limits and size limits for species 
with those limits designated as routine may be imposed or adjusted on a 
biennial or more frequent basis for the purpose of keeping landings 
within the harvest levels announced by NMFS, and for the other purposes 
given in paragraph (b)(1)(i)(A) and (B) of this section.
* * * * *
    (ii) Differential trip landing and frequency limits based on gear 
type, closed seasons. Trip landing and frequency limits that differ by 
gear type and closed seasons may be imposed or adjusted on a biennial 
or more frequent basis for the purpose of rebuilding and protecting 
overfished or depleted stocks.
* * * * *

0
5. In Sec.  660.324, paragraphs (d) and (j) are revised to read as 
follows:

[[Page 52523]]

Sec.  660.324  Pacific Coast treaty Indian fisheries.

* * * * *
    (d) Procedures. The rights referred to in paragraph (a) of this 
section will be implemented by the Secretary, after consideration of 
the tribal request, the recommendation of the Council, and the comments 
of the public. The rights will be implemented either through an 
allocation of fish that will be managed by the tribes, or through 
regulations in this section that will apply specifically to the tribal 
fisheries. An allocation or a regulation specific to the tribes shall 
be initiated by a written request from a Pacific Coast treaty Indian 
tribe to the Regional Administrator, prior to the first Council meeting 
in which biennial harvest specifications and management measures are 
discussed for an upcoming biennial management period. The Secretary 
generally will announce the annual tribal allocations at the same time 
as the announcement of the harvest specifications. The Secretary 
recognizes the sovereign status and co-manager role of Indian tribes 
over shared Federal and tribal fishery resources. Accordingly, the 
Secretary will develop tribal allocations and regulations under this 
paragraph in consultation with the affected tribe(s) and, insofar as 
possible, with tribal consensus.
* * * * *
    (j) Black rockfish. Harvest guidelines for commercial harvests of 
black rockfish by members of the Pacific Coast Indian tribes using hook 
and line gear will be established biennially for two subsequent one 
year periods for the areas between the U.S.-Canadian border and Cape 
Alava (48[deg].09'30'' N. lat.) and between Destruction Island 
(47[deg]40'00'' N. lat.) and Leadbetter Point (46[deg]38'10'' N. lat.), 
in accordance with the procedures for implementing harvest 
specifications and management measures. Pacific Coast treaty Indians 
fishing for black rockfish in these areas under these harvest 
guidelines are subject to the provisions in this section, and not to 
the restrictions in other sections of this part.
* * * * *

0
6. In Sec.  660.332, paragraphs (a) introductory text, (b)(3), and (e) 
are revised to read as follows:


Sec.  660.332  Allocations.

    (a) General. The commercial portion of the Pacific Coast groundfish 
fishery, excluding the treaty Indian fishery, is divided into limited 
entry and open access fisheries. Separate allocations for the limited 
entry and open access fisheries will be established biennially or 
annually for certain species and/or areas using the procedures 
described in this subpart or the PCGFMP.
* * * * *
    (b) * * *
    (3) The guidelines in this paragraph (b)(3) apply to recalculation 
of the open access allocation percentage. Any recalculated allocation 
percentage will be used in calculating the following biennial fishing 
period's open access allocation.
* * * * *
    (e) Treaty Indian fisheries. Certain amounts of groundfish may be 
set aside biennially or annually for tribal fisheries prior to dividing 
the balance of the allowable catch between the limited entry and open 
access fisheries. Tribal fisheries conducted under a set-aside are not 
subject to the regulations governing limited entry and open access 
fisheries.
* * * * *

0
7. In Sec.  660.333, paragraph (c)(2) is revised to read as follows:


Sec.  660.333  Limited entry fishery eligibility and registration.

* * * * *
    (c) * * *
    (2) The major limited entry cumulative limit periods will be 
announced in the Federal Register with the harvest specifications and 
management measures, and with routine management measures when the 
cumulative limit periods are changed.
* * * * *

0
8. In Sec.  660.350, paragraph (a)(6) is revised to read as follows:


Sec.  660.350  Compensation with fish for collecting resource 
information--exempted fishing permits off Washington, Oregon, and 
California.

    (a) * * *
    (6) Accounting for the compensation catch. As part of the harvest 
specifications process (Sec.  660.321), NMFS will advise the Council of 
the amount of fish authorized to be retained under a compensation EFP, 
which then will be deducted from the next harvest specifications (ABCs) 
set by the Council. Fish authorized in an EFP too late in the year to 
be deducted from the following year's ABCs will be accounted for in the 
next management cycle where it is practicable to do so.
* * * * *
[FR Doc. 03-22455 Filed 9-3-03; 8:45 am]
BILLING CODE 3510-22-S