[Federal Register Volume 68, Number 172 (Friday, September 5, 2003)]
[Proposed Rules]
[Pages 52732-52735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22571]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 030821210-3210-01; I.D.081103A]
RIN 0648-AR36


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Amendment 16-1

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS issues this proposed rule to implement Amendment 16-1 to 
the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 
16-1 would set a process for and standards by which the Council will 
specify rebuilding plans for groundfish stocks declared overfished by 
the Secretary of Commerce. Amendment 16-1 is intended to ensure that 
Pacific Coast groundfish overfished species rebuilding plans meet the 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), in particular National Standard 
1 on overfishing and Sec.  304(e), which addresses rebuilding 
overfished fisheries. Amendment 16-1 is also intended to partially 
respond to a court order in which NMFS was ordered to provide Pacific 
Coast groundfish rebuilding plans as FMPs, FMP amendments, or 
regulations, per the Magnuson-Stevens Act.

DATES:  Comments must be submitted in writing by October 6, 2003.

ADDRESSES:  Comments on Amendment 16-1 or supporting documents should 
be sent to D. Robert Lohn, Administrator, Northwest Region,

[[Page 52733]]

NMFS, Sand Point Way NE., BIN C15700, Seattle, WA 98115-0070.
    Copies of Amendment 16-1 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: 206-526-6150; 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 Office of the Federal Register's website at: http://www/access/
gpo.gov/su_docs/aces140.html.
    NMFS is proposing this rule to implement Amendment 16-1 to the FMP. 
Amendment 16-1 mainly revises the FMP and not Federal regulations. 
However, the specific standards that govern the harvest levels for 
overfished species rebuilding plans would be codified in the Code of 
Federal Regulations (CFR). Thus, this proposed rule would establish a 
new section in the Federal groundfish regulations at 50 CFR 660.370 for 
overfished species rebuilding plans. This proposed rule to implement 
Amendment 16-1 will be shortly followed by a proposed rule to implement 
Amendment 16-2, which was adopted by the Council in June 2003. If 
approved, Amendment 16-2 would place rebuilding plans for canary 
rockfish, darkblotched rockfish, lingcod, and Pacific ocean perch in 
the FMP and in Federal regulations. NMFS expects to publish a Notice of 
Availability for Amendment 16-2 in autumn 2003. This proposed rule is 
based on recommendations of the Council, under the authority of the 
Pacific Coast Groundfish FMP and the Magnuson-Stevens Act. The 
background and rationale for the Council's recommendations are 
summarized below. Further detail appears in the EA/RIR/IRFA prepared by 
the Council for Amendment 16-1.

Background

    Amendment 12 to the FMP was intended to provide a process for 
developing overfished species rebuilding plans. Under Amendment 12, 
rebuilding plans were to be stand-alone documents that described an 
overfished stock's status and articulated rebuilding goals and 
strategies for achieving those goals. Amendment 12 was challenged, and 
the court ordered NMFS to develop rebuilding plans as fishery 
management plans, plan amendments, or regulations. Amendment 16-1 is 
intended to partially respond to this Court order (Natural Resources 
Defense Council, Inc. v. Evans, 168 F. Supp. 2d 1149 (N.D. Cal 2001).)
    Amendment 16-1 would require that Pacific Coast groundfish 
overfished species rebuilding plans be added into the FMP via FMP 
amendment, and then implemented through Federal regulations. For each 
approved overfished species rebuilding plan, the following parameters 
would be specified in the FMP: estimates of unfished biomass 
(B0) and target biomass (BMSY), the year the 
stock would be rebuilt in the absence of fishing (TMIN), the 
year the stock would be rebuilt if the maximum time period permissible 
under National Standard Guidelines were applied (TMAX) and 
the year in which the stock would be rebuilt based on the application 
of stock rebuilding measures (TTarget). These estimated 
values will serve as management benchmarks in the FMP. The FMP would 
not be amended if, as is likely to happen, the values for these 
parameters change after new stock assessments. Other relevant 
information listed in Amendment 16-1 will also be included in the FMP.
    The two rebuilding parameters that control the establishment of the 
annual or biennial optimum yield of each overfished species will be 
codified in the CFR: the target year for rebuilding and the harvest 
control rule to be used to rebuild the stock. If, after a new stock 
assessment, the Council and NMFS conclude that these should be revised, 
the revision will be done through a rulemaking, and the updated values 
codified in the CFR.
    Amendment 16-1 additionally sets schedules and standards for 
reviewing rebuilding plans. The current FMP sets five goals for 
evaluating rebuilding plans: (1) Achieve the population size and 
structure that will support the maximum sustainable yield (MSY) within 
the specified time period; (2) minimize, to the extent practicable, the 
social and economic impacts associated with rebuilding, including 
adverse impacts on fishing communities; (3) fairly and equitably 
distribute both the conservation burdens (overfishing restrictions) and 
recovery benefits among commercial, recreational, and charter fishing 
sectors; (4) protect the quantity and quality of habitat necessary to 
support the stock at healthy levels in the future, and; (5) promote 
widespread public awareness, understanding, and support for the 
rebuilding program. Amendment 16-1 would require that the Council 
review rebuilding plan goals 2-5 every two years, but goal 1 only with 
new stock assessments, since new stock assessment data would be needed 
to determine whether rebuilding trajectories were being met. Stock 
assessments are generally updated every 2-4 years, with overfished 
species having higher priority in assessment scheduling.
    As stated above, the first goal of rebuilding plans is to: 
``Achieve the population size and structure that will support the 
maximum sustainable yield (MSY) within the specified time period.'' 
Amendment 16-1 specifies that the rebuilding plan for each species will 
set a species-specific standard for determining the adequacy of 
rebuilding progress for the particular species toward that goal. The 
Council had considered whether to set a single standard that would 
apply to all species, but decided that the variations in life 
histories, productivity, and abundances of the different overfished 
species warranted a species-specific rebuilding standard in each 
rebuilding plan.
    Amendment 16-1 also considered how rebuilding plans would operate 
if an overfished species were to become listed as either threatened or 
endangered under the Endangered Species Act (ESA). Under Amendment 16-
1, ESA jeopardy standards and/or recovery plans would take precedence 
over rebuilding plans if they establish higher recovery standards than 
those already set in the rebuilding plans. If a species is listed as 
threatened or endangered under the ESA and is subsequently de-listed, 
but still not rebuilt to BMSY under the Magnuson-Stevens Act, then the 
rebuilding plan would continue to provide standards for the management 
and rebuilding of that species.
    Finally, Amendment 16-1 included several minor changes to the FMP 
text. These changes include: (1) revising the list of species managed 
under the FMP to correct mis-spellings and to specify certain rockfish 
species already managed under the FMP as part of the FMP's generic 
inclusion of all species of the family Scorpaenidae; (2) revising the 
FMP definitions of ``Maximum Fishing Mortality Threshold'' or ``MFMT'' 
and of ``Minimum Stock Size Threshold'' or ``MSST'' to ensure that they 
match the definition of these terms in the National Standard 
Guidelines; (3) revising the requirements for items to be included in 
the annual Stock Assessment and Fishery Evaluation (SAFE) report and 
the schedule for delivery of different sections of that

[[Page 52734]]

report; (4) requiring the federal groundfish observer program in the 
FMP, matching existing Federal regulations at 50 CFR 660.360, and; (5) 
reorganizing sections of Chapters 4 and 5 of the FMP for a more logical 
progression of information, without a revision to the requirements or 
effects of the FMP.

Federal Regulations under Amendment 16-1

    Regulations to implement Amendment 16-1 would establish a new 
section of the Federal groundfish regulations at 50 CFR 660.370, 
``Overfished Species Rebuilding Plans.'' Because Amendment 16-1 
provides a framework for future rebuilding plans, the regulations 
implemented through this proposed rule would similarly provide a 
framework within federal groundfish regulations for future species-
specific rebuilding plans. Amendment 16-2, which NMFS plans to make 
available for public review in autumn 2003, would propose 
implementation of the first four overfished species rebuilding plans 
(canary rockfish, darkblotched rockfish, lingcod, Pacific ocean perch) 
within 50 CFR 660.370. In the future, overfished species rebuilding 
plans would be reviewed under the schedule set by Amendment 16-1 and 
Federal regulations implementing species-specific rebuilding plans 
would be amended through a public notice-and-comment rulemaking.

Classification

    At this time, NMFS has not determined whether Amendment 16-1, which 
this proposed rule would implement, is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council has prepared an IRFA that describes the economic impact 
this proposed rule, if adopted, would have on small entities. The IRFA 
is available from the Council (see ADDRESSES). A summary of the IRFA 
follows:
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the SUMMARY and BACKGROUND 
at the beginning of this proposed rule. There are no recordkeeping, 
reporting, or other compliance issues forthcoming from this proposed 
rule. This proposed rule does not duplicate, overlap, or conflict with 
other Federal rules.
    A fish-harvesting business is considered a ``small'' business by 
the Small Business Administration (SBA) if it has annual receipts not 
in excess of $3.5 million. 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 SBA. This 
proposed rule is not expected to yield disproportionate economic 
impacts between those small and large entities. 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.
    The proposed action in this amendment affects only the 
administrative process by which individual species rebuilding plans are 
formulated, and so does not have significant adverse economic effects 
on consumers, producers or processors of groundfish. The EA/RIR/IRFA 
defines four issues for which alternatives were identified and selected 
by the Council. Of these four issues, only the alternatives identified 
under Issue 1 have regulatory implications. Under Issue 1, the Council 
considered the form (FMP amendments, regulations, a combination 
thereof) and required elements of a rebuilding plan. The remaining 
issues are concerned with setting internal Council standards for 
periodic review and modification of rebuilding plans (Issues 2 and 3), 
and defining the interaction of a rebuilding plan with recovery plans 
for a rebuilding species that is subsequently listed under the ESA 
(Issue 4).
    The Council considered 4 alternatives under Issue 1, including a 
status quo alternative. All alternatives, with the exception of the 
status quo, would implement overfished species rebuilding plans as 
either FMP amendments or Federal regulations. One alternative (Issue 1, 
Alternative b) would have implemented rebuilding plans as FMP 
amendments, with rebuilding parameters specified in the FMP. Another 
alternative (Issue 1, Alternative c) would have implemented rebuilding 
plans as Federal regulations, with TTARGET and a harvest control rule 
for each overfished species specified in regulations. The final and 
preferred alternative (Issue 1, Alternative d) would specify 
TTARGET and the harvest control for each overfished species 
in regulations, and would require the Council to describe the formulas 
and methodology for determining other rebuilding parameters in the FMP. 
This was the preferred alternative because it ensures that basic 
rebuilding plan information is provided in the FMP for each overfished 
species, while still allowing updates to some rebuilding parameters 
through notice and comment rulemaking. In this fashion, Amendment 16-1 
complies with the Magnuson-Stevens Act requirement at Section 304(e)(3) 
that overfished species rebuilding plans take the form of ``a fishery 
management plan, plan amendment, or proposed regulations.''
    While there will be no direct impact on small entities as a result 
of adopting any particular process for formulating rebuilding plans, 
the implementation of specific rebuilding plans for overfished species 
may entail substantial economic impacts for groundfish processors, 
commercial harvesters and recreational charter vessels. These type of 
impacts are specific to particular stocks or species and so will be 
addressed in the individual rebuilding plans themselves. While there 
may be slight differences between the alternatives in the amount of 
administrative capacity required to formulate and implement individual 
species rebuilding strategies, these differences are not quantifiable 
and will depend more on the variability of periodic stock assessments 
once a particular rebuilding plan is adopted than on the effects of 
these proposed actions or the subsequent adoption of individual 
rebuilding plans.
    Based on the analysis within the IRFA, the agency does not believe 
the rule has a significant impact on a substantial number of small 
entities and has so advised the SBA. However, NMFS welcomes comments on 
this issue (see ADDRESSES) and will notify the public of its final 
determination in the final rule for this action.

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.


[[Page 52735]]


    Dated: August 29, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

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

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

    Authority: 16 U.S.C. 1801 et seq.
    2. Section Sec.  660.370, ``Overfished Species Rebuilding Plans'' 
is added to read as follows:


Sec.  660.370  Overfished Species Rebuilding Plans.

    For each overfished groundfish stock with an approved rebuilding 
plan, this section contains the standards to be used to establish 
annual or biennial OYs, specifically the target date for rebuilding the 
stock to its MSY level and the harvest control rule to be used to 
rebuild the stock.
[FR Doc. 03-22571 Filed 9-4-03; 8:45 am]
BILLING CODE 3510-22-S