[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Rules and Regulations]
[Pages 8861-8874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4286]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 030821210-4052-02; 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: Final rule.

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

SUMMARY: NMFS issues this final rule to implement Amendment 16-1 to the 
Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 16-1 
sets 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 which addresses rebuilding overfished

[[Page 8862]]

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: Effective March 29, 2004.

ADDRESSES: Copies of Amendment 16-1 and the environmental assessment/
initial regulatory impact review (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. 
Copies of the final regulatory flexibility analysis (FRFA) are 
available from D. Robert Lohn, Administrator, Northwest Region 
(Regional Administrator), NMFS, 7600 Sand Point Way N.E., Bldg. 1, 
Seattle, WA 98115-0070.

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

    The proposed rule also is accessible via the Internet at the Office 
of the Federal Register's website at http://www/gpoaccess/gpv/fr/
index.html. Background information and documents are available at the 
NMFS Northwest Region website at http://www/nwr.noaa.gov/1sustfsh/gdfsh/gdfsh01.htm and at the Council's website at http://www.pcouncil.org.

Background

    A Notice of Availability for Amendment 16-1 to the FMP was 
published on August 18, 2003 (68 FR 49415). NMFS requested comments on 
the amendment under the Magnuson-Stevens Act FMP amendment review 
provisions for a 60-day comment period, ending October 17, 2003. A 
proposed rule to implement Amendment 16-1 was published on September 5, 
2003 (68 FR 52732). NMFS requested comment on the proposed rule through 
October 6, 2003. During the comment periods on the amendment and 
proposed rule, NMFS received four letters of comment, which are 
addressed later in the preamble to this final rule. The preamble to the 
proposed rule for this action provides additional background on the 
fishery and on this rule. Further detail on Amendment 16-1 also appears 
in the EA/RIR/IRFA prepared by the Pacific Fishery Management Council 
(Council) for this action.
    NMFS approved Amendment 16-1 on November 14, 2003. Amendment 16-1 
requires 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 will 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), the estimated probability that the stock 
would be rebuilt by this date under the adopted rebuilding plan based 
on the application of stock rebuilding measures, the year in which the 
stock would be rebuilt under the adopted rebuilding plan based on the 
application of stock rebuilding measures (TTARGET), and a 
harvest control rule. These estimated values will serve as management 
benchmarks in the FMP. The FMP will not be amended if, as is likely to 
happen, the values for these parameters change as a result of 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 (OY) of each overfished species will 
be codified in the Code of Federal Regulations (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.
    In addition to specifying how rebuilding plans and their parameters 
will be handled in the FMP and in Federal regulations, Amendment 16-1 
will: set schedules and standards for reviewing rebuilding plans; 
specify 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; give Endangered Species 
Act (ESA) jeopardy standards and/or recovery plans precedence over 
rebuilding plans if they establish higher recovery standards than those 
already set in the rebuilding plans, and; make minor housekeeping 
amendments to the FMP text, such as correcting mis-spelled species 
names, revising definitions to better comport with the national 
standard guidelines, revising the Stock Assessment and Fishery 
Evaluation report schedule, clarifying that the Federal observer 
program is mandatory, and reorganizing outdated sections of the FMP.

Comments and Responses

    NMFS received four letters of comment on the proposed rule to 
implement Amendment 16-1: two letters were received from environmental 
advocacy organizations, one letter was received from the U.S. 
Department of the Interior, and one letter was received from the U.S. 
Coast Guard. Their comments are addressed here:
    Comment 1: We recommend that the FMP specify for each overfished 
species a virgin biomass (B0 or BUNFISHED)that is 
the product of that stock's spawning potential ratio in an unfished 
state and the average recruitment during the early years of the 
fishery, or the standard used by NMFS for stock assessments. We also 
recommend that this value be specified in Federal regulations.
    Response: According to the Council's Scientific and Statistical 
Committee's (SSC's) Terms of Reference for Groundfish Rebuilding 
Analyses (April 2001), analysts typically estimate B0 values 
by reviewing recruitment from a sequence of years in which recruitment 
is believed to be reasonably representative of that of an unfished 
stock. This practice typically translates into a reliance on stock size 
estimates from the earliest years for which recruitment information is 
available. Incorporating new data on stock size and recruitment levels 
into a stock assessment would likely result in the revision of B0 
for that species. For example, the June 2002 canary rockfish rebuilding 
analysis completed for Amendment 16-2 revised an earlier estimate of 
B0 by incorporating older historical information (back to 
1940) on canary rockfish recruitment. Both the canary rockfish and 
darkblotched rockfish B0 values provided in Amendment 16-2 
were calculated in the manner suggested by the commenter.
    For Pacific ocean perch (POP), assessment authors reviewed this 
traditional approach and modified it somewhat because POP recruitment 
is highly variable and recruitment levels in the earlier years of the 
POP assessment period were unusually high. Assessment authors found 
that recruitment values earlier than and later than the assessment 
period were substantially smaller than the values for the years at the 
start of the assessment period. For lingcod, which tends to have more 
constant recruitment rates than rockfish species, stock assessment 
authors looked at recruitment rates for

[[Page 8863]]

the entire time series available for lingcod (1973-1995).
    In raising this issue, the commenter addresses a basic conundrum in 
fish stock assessment. West Coast fisheries and atmospheric scientists 
acknowledge that West Coast waters experience periodic warming and 
cooling cycles that seem to affect recruitment success for some West 
Coast species. If the earliest data available on a particular stock 
were from years when ocean conditions for that stock's recruitment 
levels were good, an assessment author could use those data and 
overestimate the long-term average size of B0. In this 
circumstance the earlier B0 could not be maintained by the 
stock under the subsequent poorer ocean conditions, even in the absence 
of fishing. Conversely, if the ocean conditions were not favorable to 
recruitment during the early years of a particular stock's assessment 
period, an assessment author could use those data and underestimate the 
size of B0. These possibilities are particularly evident for 
rockfish, which seem to have highly variable rates of recruitment. 
Thus, while NMFS recognizes that the commenter's B0 
estimation method has merit and should be considered in the development 
of rebuilding analyses, the agency continues to support the SSC's 
recommendations that the determination of B0 be attuned to the behavior 
of and information about each particular stock being assessed.
    For each overfished species, NMFS intends to include only the 
target year for rebuilding (TTARGET) and the harvest control 
rule in Federal regulations because these parameters would control the 
establishment of OY for these species. Other rebuilding parameters such 
as B0 will be included in the FMP.
    Comment 2: The commenter recommended that the FMP specify for each 
overfished species a proxy for biomass at MSY (BMSY) that is 
forty percent of BUNFISHED. The commenter also recommended 
that this value be specified in Federal regulations.
    Response: The FMP, as amended by Amendment 16-1, specifies in its 
definition of ``MSY stock size'' that the proxy for BMSY 
``typically used in this fishery management plan is 40 percent of the 
estimated unfished biomass, although other values based on the best 
scientific information are also authorized.'' This proxy is again 
specified in the FMP at Section 4.4.1, which establishes a BMSY 
precautionary threshold for stocks that have received quantitative 
assessments. Species with stock sizes below their BMSY are 
to be managed at more precautionary harvest levels. Section 4.4.1 reads 
in part, ``The default precautionary threshold will be 40 percent of 
the estimated unfished biomass level. The Council may recommend 
different precautionary thresholds for any species or species group 
based on the best scientific information about that species or species 
group. It is expected that the threshold will be between 25 percent and 
50 percent of the estimated unfished biomass level.''
    The BMSY levels set for each of the four overfished 
species in Amendment 16-2 are set at B40. As the FMP makes 
clear, B40 is the default BMSY proxy for all 
stocks that have received quantitative assessments, including 
overfished species. However, the FMP is also clear in stating that 
BMSY for a particular stock may be modified from B40 
if the best available scientific information on that stock warrants the 
revision.
    For each overfished species, NMFS intends to include only the 
target year for rebuilding (TTARGET) and the harvest control 
rule in Federal regulations because these parameters would control the 
establishment of OY for these species. Other rebuilding parameters such 
as B0 will be included in the FMP.
    Comment 3: The commenter recommended that the FMP specify a target 
time for rebuilding (TTARGET) that is the midpoint between 
the minimum time for rebuilding (TMIN) and the maximum time 
for rebuilding (TMAX). The commenter also recommended that 
this value be specified in Federal regulations.
    Response: According to the national standard guidelines at 50 CFR 
600.310(e)(4)(ii)(B)(3), if TMIN is 10 years or greater, 
``then the specified time period for rebuilding [TTARGET] 
may be adjusted upward to the extent warranted by the needs of fishing 
communities and recommendations by international organizations in which 
the United States participates, except that no such upward adjustment 
can exceed the rebuilding period calculated in the absence of fishing 
mortality, plus one mean generation time or equivalent period based on 
the species' life-history characteristics [TMAX].''
    The Council has not recommended for the 16-2 species a TTARGET 
value that exceeds TMAX. For some species, it would be 
appropriate to set a TTARGET that is the midpoint between 
TMIN and TMAX. Amendment 16-2, for example, 
includes Council-preferred alternatives for darkblotched rockfish and 
POP TTARGET levels that are set at the midpoints between 
their respective TMIN and TMAX levels. However, 
there are cases where the needs of fishing communities or 
recommendations of international organizations may result in the 
setting of a TTARGET year that is different from the 
midpoint between the minimum time for rebuilding and the maximum time 
for rebuilding.
    Many of the overfished groundfish stocks tend to be thoroughly 
mixed with other, more abundant stocks. Historically, NMFS and the 
Council have interpreted the needs of the fishing communities to 
primarily include the need to have some fishing occurring for those 
more abundant stocks. Some overfished species, such as canary rockfish, 
co-occur with more abundant fish stocks to such a great degree that 
setting a TTARGET year at the midpoint between the minimum 
time for rebuilding and the maximum time for rebuilding would result in 
the closure of one or more fishing sectors, resulting in severe impacts 
on participants in these fisheries.
    Canary rockfish rebuilding parameters in Amendment 16-2 provide an 
example of the effects of managing to different TTARGET 
years in a multi-species fishery. The Council's preferred alternative 
is a canary rockfish TTARGET of 2074, with a TMIN 
of 2057 and a TMAX of 2076. The Amendment 16-2 Draft 
Environmental Impact Statement (DEIS) analyzes canary rockfish 
rebuilding for a range of alternatives that include maximum 
conservation by managing to TMIN and maximum harvest by 
managing to TMAX. At TMIN, no directed or 
incidental take of canary rockfish would be permitted (Table 2.0-1, 16-
2 DEIS). Table 3.1-1 of the DEIS shows the known latitudinal and depth 
distributions of FMP groundfish, with canary rockfish listed as a 
coastwide stock with a depth distribution of 50-150 fm (91-274 m). To 
fully avoid canary rockfish, recreational fisheries for groundfish 
would have to close entirely because of their canary rockfish 
interceptions. A broad range of commercial fisheries ranging from 
groundfish trawl to halibut longline would similarly need to be closed 
in order to avoid canary rockfish altogether (Table 4.4-11, 16-2 DEIS). 
Even at the Council's preferred TTARGET of 2074, management 
measures to protect canary rockfish in 2004 include: a Rockfish 
Conservation Area (RCA) in which groundfish bottom trawling is 
prohibited between the 75 fm (137 m) and 200 fm (366 m) depths, trawl 
footrope gear restrictions to make trawl gear less effective in canary 
rockfish habitat, an RCA in which fishing for groundfish with non-trawl 
gear is prohibited between the 30-fm (55-m) and 100-fm (183-m) depths, 
state-management requirements that shrimp and prawn trawlers carry 
finfish

[[Page 8864]]

excluder devices, and prohibiting canary rockfish retention in the 
recreational fisheries coastwide. In summary, due to socioeconomic 
considerations and the constraints on fishing communities associated 
with rebuilding measures for overfished species, the agency does not 
expect to set a single TTARGET guideline for all species 
that would be the midpoint between TMIN and TMAX. 
While the Technical Guidance on the Use of the Precautionary Approaches 
to Implementing National Standard 1 of the Magnuson-Stevens Fishery 
Conservation and Management Act (Technical Guidance) at page 38 
suggests that TTARGET be set no higher than the midpoint 
between TMIN and TMAX, adopting that as a binding 
criterion in all cases would not be consistent with the Magnuson-
Stevens Act. It would not be consistent with the Magnuson-Stevens Act 
because it would not allow the criteria in the Act at section 304(e)(4) 
and the national standard guidelines at 600.310(e)(4)(ii) to be taken 
into account. The Technical Guidance is not a binding regulation that 
must be followed. The Technical Guidance itself acknowledges that it 
deals with biological issues, and not with socioeconomic issues, which 
fishery management councils must consider, per the Magnuson-Stevens Act 
(Technical Guidance at 1, 28).
    NMFS intends to include a value for TTARGET for each 
overfished species in Federal regulations at 50 CFR 660.370, as shown 
in the proposed rule to implement Amendment 16-2 (December 5, 2003, 68 
FR 67998.)
    Comment 4: We recommend that the FMP specify a TMAX that 
is associated with a ninety percent probability (P90%) of 
rebuilding to BMSY for those species with a stock assessment 
containing uncertainty and with an eighty percent probability 
(P80%) of rebuilding to BMSY for those species 
with stock assessments containing no uncertainty. This rebuilding time 
would serve as an outer bound for rebuilding analyses.
    Response: The definition for TMAX was provided above in 
the response to Comment 3 and is repeated here, in part: ``the 
specified time period for rebuilding [TTARGET] may be 
adjusted upward . . . except that no such upward adjustment can exceed 
the rebuilding period calculated in the absence of fishing mortality, 
plus one mean generation time or equivalent period based on the 
species' life-history characteristics [TMAX]'' 
(600.310(e)(4)(ii)(B)(3)). Thus, TMAX is an outer boundary 
for the rebuilding time that is defined by a stock's recruitment in the 
absence of fishing and by the stock's mean generation time. The 
probability of rebuilding to BMSY by TMAX is a 
function of the fishing mortality rate, not the calculated 
TMAX; the fishing mortality rate also determines 
TTARGET. In order to ensure that it had illustrated the 
range of effects on the environment of different rebuilding 
probabilities for the Amendment 16-2 species, the Amendment 16-2 
Environmental Impact Statement (EIS) includes a ``maximum 
conservation'' alternative, in which the fishing mortality rate is set 
to 0, TTARGET is equal to TMIN, and the 
probability of rebuilding to BMSY within TMAX 
equals or approaches 100 percent.
    The commenter also differentiates between those stock assessments 
that contain uncertainty and those that do not contain uncertainty. 
Stock assessments are mathematical descriptions of what the data on a 
particular stock lead us to believe about the relative health and 
status of that stock. ``Uncertainty'' is a measure of the range around 
the best scientific estimates that come from the stock assessment. 
Uncertainty is not a lack of knowledge. Results that are close to the 
assessment's best estimate are likely to be close to the true 
situation, and other results are possible but unlikely. There are 
several factors that contribute to uncertainty in the stock assessment, 
including variability in the catch and survey data that go into the 
model, incompletely known factors about the biology of the fish, 
necessary simplifications in the assessment model itself, and changes 
in the actual productivity of the fish stock. Continued research helps 
us reduce each of these sources of uncertainty. However, given current 
research technology, it is unlikely that a stock assessment scientist 
working on wild fish stocks will have the opportunity to conduct a 
stock assessment with no uncertainty. Explaining this disconnect 
between a mathematician's definition of ``uncertainty'' and the public 
belief that ``uncertainty'' means ``lack of knowledge'' is a regular 
communication challenge for stock assessment scientists.
    To the extent that the comment is intended to advocate a 
consistently conservative approach to establishing rebuilding 
parameters, the agency does employ a precautionary approach. However, 
as explained in the response to Comment 3, above, the Magnuson-Stevens 
Act and the national standard guidelines require that the Council and 
NMFS create overfished species rebuilding programs that both rebuild 
overfished species within TMAX and minimize the adverse 
economic impacts of such programs on fishing communities.
    Comment 5: The EA states that the methods of calculating the 
rebuilding parameters TMAX and TMIN are set at a 
national level. What is the relationship between the Magnuson-Stevens 
Act's national standards and the national standard guidelines?
    Response: At Section 301(a), the Magnuson-Stevens Act sets 10 
national standards for fishery management. These standards were 
created, amended, and updated through the series of legislative actions 
that created and have since amended the law first known as the 1976 
Fishery Conservation and Management Act and now known as the Magnuson-
Stevens Act. Section 301(b) directs the Secretary of Commerce to 
``establish advisory guidelines (which shall not have the force and 
effect of law), based on the national standards, to assist in the 
development of fishery management plans.'' This authority under the 
Magnuson-Stevens Act has been delegated to NMFS. NMFS has had national 
standard guidelines in effect for many years. The Magnuson-Stevens Act 
was amended in 1996 by the Sustainable Fisheries Act, which 
strengthened the overfishing prohibitions of the Magnuson Act and 
enacted the rebuilding provisions under which NMFS currently operates. 
After two public comment periods on a proposed rule, NMFS promulgated 
the final rule implementing the current national standard guidelines on 
May 1, 1998 (63 FR 24212). Those guidelines provide an interpretation 
of the national standards and are codified in Federal regulations at 50 
CFR 600.310 through 600.355. The specific sections that relate to 
TMIN and TMAX are found in 50 CFR 
600.310(e)(4)(ii)(A) and (B). These national standard guidelines apply 
to all fisheries, nation-wide, that are managed under the aegis of the 
Magnuson-Stevens Act.
    Comment 6: For those rebuilding plan parameters that are to be 
specified in Federal regulations, we recommend full notice and comment 
rulemaking when these specific numeric criteria are changed via a stock 
assessment or other similar process.
    Response: As discussed earlier in the responses to several 
comments, above, NMFS plans to codify for each overfished species a 
value for TTARGET and a harvest control rule in Federal 
regulations at 50 CFR 660.370. Any future revisions to these parameters 
would be made via notice-and-comment rulemaking. Because NMFS expects 
that revisions to rebuilding parameters would occur as a result of a 
change in a stock assessment for an overfished

[[Page 8865]]

species, the notice-and-comment rulemaking for revisions to rebuilding 
parameters would generally occur simultaneously with a notice-and-
comment rulemaking on harvest specifications and management measures.
    Comment 7: We urge NMFS to ensure that the groundfish FMP establish 
OY levels for groundfish species consistent with the Magnuson-Stevens 
Act and NMFS Technical Guidance. National standard 1 of the Magnuson-
Stevens Act requires that ``conservation and management measures shall 
prevent overfishing while achieving, on a continuing basis, the optimum 
yield from each fishery for the United States Fishing Industry'' (16 
U.S.C. 1851(a)(1)). For species that are not overfished, the Council 
and NMFS must ensure that management measures are aimed at achieving an 
OY value, by reducing harvest levels such that OYs are below the MSY 
level. For species that are overfished, the OY and management measures 
should be designed to achieve rebuilding goals. Further, NMFS should 
ensure that the FMP consider proxies for OY in the case of data poor 
situations. We urge consideration of proxies found in the Technical 
Guidance for these species in the 2004 specifications environmental 
impact statement.
    Response: FMP policies on the setting of ABCs and OYs are generally 
consistent with national standard 1 and with the Technical Guidance to 
implement the biological aspects of national standard 1. The Council 
addressed Magnuson-Stevens Act guidance on setting acceptable 
biological catch (ABCs) and OYs with its 1998 Amendment 11 to the FMP. 
The FMP at Section 4.3 identifies three categories of stocks: Category 
1 is stocks with quantitative assessments, Category 2 is stocks with 
nonquantitative assessments, and Category 3 is stocks for which there 
is not enough information to set ABC values.
    Category 1 Stocks: Under the FMP at Section 4.3, ABCs for Category 
1 species are to be set at the MSY harvest level. The ABC for a species 
or species group is generally derived by multiplying the harvest rate 
proxy by the current estimated biomass. In 2001, the Council's SSC 
conducted a harvest rate workshop that resulted in the Council 
developing new default harvest rate proxies. These harvest rate proxies 
have been in use since the 2002 fishing year: F40% for 
flatfish, F50% for rockfish (including thornyheads), and 
F45% for other groundfish such as sablefish and lingcod. A 
rate of F40% can be explained as that which reduces spawning 
potential per female to 40 percent of what it would have been under 
natural conditions (if there were no mortality due to fishing), and is, 
therefore, a more aggressive rate than F45% or 
F50%.
    The OY for each species or species group is set according to a 
series of rules that vary depending upon the relative abundance of the 
stock and upon the quantity and quality of scientific assessment on the 
stock. For stocks with stock assessments that indicate those stocks are 
above BMSY, harvest specifications may be set such that OY = 
ABC, unless reductions in available harvest need to be made to account 
for: high degree of uncertainty about the biomass estimate and other 
parameters, anticipated bycatch mortality of that species, past OY 
levels resulted in overfishing occurring on that species, or 
international fishery management agreements regarding that species (FMP 
at 4.6.1). Regardless of where the OY is set for a stock above 
BMSY, the fisheries will likely not be permitted to achieve 
that OY if that species co-occurs with an overfished species and 
fishing the more abundant stock must be constrained to protect the 
overfished stock.
    Those stocks with stock assessments that indicate a population 
level between B40% and B25% are considered to be 
in a ``precautionary zone.'' Under the FMP at Section 4.5.1 and 4.6.1, 
OYs for stocks in the precautionary zone will generally be reduced from 
ABC on a scale known as the ``40-10'' policy, demonstrated by the 
following figure:
BILLING CODE 3510-22-S

[[Page 8866]]

[GRAPHIC] [TIFF OMITTED] TR26FE04.076

BILLING CODE 3510-22-C

    As is shown in this figure, harvest level parameters for stocks in 
the precautionary zone are increasingly conservative as they are 
applied to stocks of lower abundance within the precautionary zone. 
NMFS and the Council have applied the 40-10 policy to stocks with 
biomasses estimated to be within the precautionary zone since Amendment 
11 was implemented in 1999. These stocks in the precautionary zone are 
proposed to be managed at harvest levels reduced from OY by the 40-10 
policy in 2004: sablefish, Dover sole, and shortspine thornyhead. The 
40-10 policy is more precautionary than the Technical Guidance's 
recommendations for stocks below BMSY. The Technical 
Guidance does not recommend reducing fishing mortality below FMSY 
until the stock is at 75 percent of BMSY (Technical Guidance 
at 35-37).
    Stocks with stock assessments that indicate the biomass is below 
B25% are considered overfished. Overfished species OYS are 
not set with a universally applicable policy. Each species' OY is set 
by a harvest rate intended to achieve the rebuilding goals for that 
species. Amendment 16-1 and its companion amendments, (16-2, 16-3, and 
16-4) further develop harvest conservation principles explored in the 
FMP through Amendment 11. As discussed earlier in this document, 
Amendment 16-1 sets a process for and standards by which overfished 
species rebuilding plans will be developed. Amendment 16-2 (available 
for public comment on November 7, 2003, 68 FR 63053), Amendment 16-3 
(under Council development), and Amendment 16-4 (to follow the 2004 
whiting stock assessment) will establish rules by which OYS for each of 
the nine overfished species will be set under their respective 
rebuilding plans.
    Category 2 Stocks: For stocks with nonquantitative stock 
assessments, the ABC is generally set based on the average of historic 
landings levels (FMP at 4.3.2). The FMP recognizes that an ABC based on 
average historical landings cannot be the upper harvest level for a 
species if historical landings have been unsustainable. Section 4.6.2 
of the FMP governs the setting of OYS for Category 2 species. Under the 
OY policy for Category 2 species, precautionary downward adjustments 
are made to the OY from the ABC if there is a perception that the stock 
is below its MSY or if there is a high degree of uncertainty about the 
condition of the stock. This guidance is carried out through more 
specific Council policies for setting annual harvest values. ABC values 
are first calculated from average historic landings levels and then set 
by reducing the resultant average by 25 percent. Thus, an ABC for a 
Category 2 species is set at 75 percent of its average historic 
landings level. OY levels for Category 2 species are further reduced 
from their ABCs by 2 percent if they are species with less rigorous 
stock assessment, or by 50 percent if they are species with 
nonquantitative stock assessments. Thus an OY for a Category 2 species 
with a less rigorous stock assessment is set by multiplying the 
historic average landings level by 0.75, and then by multiplying that 
result by 0.75, ultimately resulting in an OY that is 56.25 percent of 
the historic average landings level. An OY for a Category 2 species 
with a nonquantitative assessment is set by multiplying the historic 
average landings level by 0.75, and then by multiplying that result by 
0.5, ultimately resulting in an OY that is 37.5 percent of the historic 
average landings level. These policies, which were recommended by the 
Council's SSC, are consistent with but more precautionary than those 
described in the Technical Guidance for creating proxies in data poor 
situations. To see these policies in practice, refer to Table 1 in the 
2004 specifications and management measures (69 FR 1380,

[[Page 8867]]

January 8, 2004), footnotes for minor rockfish.
    Category 3 Species: When the Council first developed the groundfish 
FMP in the early 1980's, it swept a wide variety of species under the 
authority of the groundfish FMP. At the time, West Coast salmon 
fisheries were of paramount importance, thus the groundfish FMP served 
as the management vehicle for many species other than salmon. There is 
generally little known about Category 3 species, perhaps because they 
have historically low catch rates or abundance relative to other more 
widespread stocks, or because they are not vulnerable to survey 
sampling gear. These species may not appear on fish tickets because 
they are not taken in the fisheries or because they are not 
commercially desirable. If a fishery were to develop for a Category 3 
species, then more information on that species would become available, 
possibly allowing it to be re-categorized as Category 1 or 2. For 
example, a new stock assessment is under development for cabezon, a 
Category 3 species that has become more common in the nearshore 
recreational and commercial fisheries in recent years. This stock 
assessment covers waters off California, where cabezon are most 
frequently found. Once the assessment is complete, cabezon off 
California will be considered a Category 1 stock. Category 3 species 
currently include: cabezon and greenling; some of the flatfish species 
that are either not often commercially valuable or which are too small 
to be regularly caught in legal groundfish trawl nets, such as butter, 
curlfin, flathead, rex, and sand soles, pacific sanddab, and starry 
flounder; the FMP's six elasmobranch species (big, California, and 
longnose skates, leopard and soupfin sharks, spiny dogfish); as well 
as, finescale codling, Pacific rattail, and ratfish. In the harvest 
specifications and management measures, these species are grouped into 
either the ``other flatfish'' or ``other fish'' categories, as 
appropriate, and have species group ABCs for each West Coast management 
area based on historical landings for those species groups. This policy 
is consistent with the Technical Guidance for those species that are 
believed to be above BMSY for creating proxies in data poor 
situations. In general, there is not enough information about these 
species to determine whether they are above or below BMSY, a 
pre-condition for using the data-poor proxy creation guidance in the 
Technical Guidance. For 2005 and beyond, the Council is considering 
whether to apply its policies for ``remaining rockfish'' and ``other 
rockfish'' to the ``other flatfish'' and ``other fish'' species 
categories, to provide a precautionary adjustment for these Category 3 
species. To see these policies in practice, refer to Table 1 in the 
2004 specifications and management measures (69 FR 1380, January 8, 
2004), footnotes for ``other flatfish'' and ``other fish.''
    Comment 8: The harvest control rule established in the FMP to 
rebuild each overfished species should be consistent with the Technical 
Guidance.
    Response: Harvest control rules for overfished species are used to 
set annual OYs for those species. As discussed above in the response to 
Comment 7, OYs for overfished species are species-specific and are 
intended to achieve the rebuilding goals for a particular species. The 
FMP contains default harvest control rules for stocks above 
BMSY, depleted stocks below BMSY but above the 
overfished threshold and, through Amendment 16-2, species-specific 
harvest control rules for lingcod, canary rockfish, darkblotched 
rockfish, and POP. The default harvest control rule was described 
earlier in the response to Comment 7. As discussed earlier, the 40-10 
harvest control rule is generally consistent with the Technical 
Guidance because harvest rates set by that rule are always less than or 
equal to the MSY control rule (which is the overfishing level) and 
rates decline at low stock biomass levels. Species-specific control 
rules for the remaining overfished species will be added to the FMP 
through Amendments 16-3 and/or 16-4.
    The Technical Guidance at section 3.4 provides suggestions for 
calculating mean generation time for overfished species, default 
rebuilding plans in the absence of species-specific rebuilding plans, 
and on addressing the role of uncertainty in rebuilding plans. Methods 
used by stock assessment scientists to determine mean generation time 
vary by species and according to quantity and quality of data available 
on that species' life history. For Amendment 16-2 species with 
TMINs greater than 10 years (canary rockfish, darkblotched 
rockfish, POP,) mean generation times were calculated with the approach 
recommended in the Technical Guidance.
    We have already addressed the Council's default rebuilding policy 
in the response to Comment 7. For species-specific rebuilding plans, 
the Technical Guidance offers three suggestions for setting the 
rebuilding plan parameters and harvest control rule. First, the 
Technical Guidance suggests that, ``The maximum rebuilding period, 
TMAX, should be 10 years, unless TMIN is greater 
than 10 years, when TMAX should be equal to TMIN 
plus one mean generation time.'' This is the definition of TMAX 
provided by the national standard guidelines at section 
600.310(e)(4)(ii)(B)(3) and is the method that NMFS and the Council use 
to calcluate TMAX for overfished groundfish species.
    Second, the Technical Guidance suggests that ``the target 
rebuilding time period, TTARGET, should be as short as 
possible and lower than TMAX (although it could be adjusted 
upward to TMAX under the circumstances described in Section 
600.310(e)(4) of the national standard guidelines.) We suggest that 
TTARGET not exceed the midpoint between TMIN and 
TMAX.'' TTARGETs set for overfished groundfish 
species do not exceed TMAX. We addressed the suggestion that 
TTARGET not exceed the midpoint between TMIN and 
TMAX earlier in this document, in the response to Comment 3.
    Finally, the Technical Guidance suggests that ``if the stock is 
well below the minimum stock size threshold (MSST) (e.g. B [le] \1/
2\MSST), it may be necessary to set the fishing mortality rate as close 
to zero as possible (i.e., to that associated with unavoidable levels 
of bycatch) for a number of years. Since 2000, NMFS and the Council 
have pursued a policy of restricting or eliminating opportunities for 
fishers to directly target overfished stocks. In order to reduce 
unavoidable bycatch, directed harvest of more abundant stocks that co-
occur with overfished species has also been curtailed. In 1998, prior 
to the declaration of any groundfish as overfished, the total 
commercial groundfish landings by weight were 274,690 mt. Total 
commercial groundfish landings by weight in 2003 were 168,589 mt, an 
approximate 39-percent reduction in commercial harvest. These 
reductions reflect measures to reduce overfished species take to 
unavoidable bycatch levels and to reduce opportunities for incidental 
harvest by also reducing directed fishing opportunities for more 
abundant species. The suite of management measures NMFS has implemented 
to limit overfished species take to unavoidable bycatch is described 
later in this document in the response to Comment 13.
    On page 38, the Technical Guidance suggests addressing uncertainty 
with the guideline that ``rebuilding plans be designed to possess a 50-
percent or higher chance of achieving BMSY within 
TTARGET years, and a 90-percent or higher chance of 
achieving BMSY within

[[Page 8868]]

TMAX years.'' Rebuilding plans for the overfished species in 
Amendment 16-2 have been designed with a 50-percent chance of achieving 
BMSY within TTARGET years, although not with a 
90-percent chance of achieving BMSY within TMAX 
years. Rebuilding plans in Amendment 16-2 provide a 60-percent chance 
for canary rockfish and lingcod, a 70-percent chance for POP, and an 
80-percent chance for darkblotched rockfish to achieve their respective 
BMSY levels within TMAX years. As mentioned in 
the Preface to the Technical Guidance itself, it provides guidance on 
``those aspects of scientific fishery management advice that have 
biological underpinnings'' and it recognizes that there are other 
important factors for fisheries management, such as the social and 
economic goals of the Magnuson-Stevens Act. Probabilities of achieving 
BMSY within TMAX years that are less than 90 
percent have been established in order to meet varying needs of West 
Coast fishing communities, as discussed earlier in this document.
    Comment 9: One commenter stated that the Magnuson-Stevens Act 
requires the Secretary of Commerce to review rebuilding plans for 
overfished species every 2 years to ensure adequate progress toward 
rebuilding goals (16 U.S.C. 304(e)(7).) The Council has recommended 
reviewing rebuilding plans every 2-5 years, with progress toward 
rebuilding to MSY only to be reviewed when new stock assessments are 
provided for the species in question. This commenter expected that, 
regardless of the review process that the Council has recommended 
through Amendment 16-1, the Department of Commerce will meet its duty 
to review the rebuilding plans every 2 years.
    A second commenter assumed that the Council's rebuilding plan 
review process was intended to be a substitute for a Secretarial review 
process. This commenter read Amendment 16-1 as authorizing NMFS and the 
Council to avoid the Magnuson-Stevens Act requirement to review the 
adequacy of rebuilding progress for overfished species managed under 
rebuilding plans every 2 years.
    Response: The first commenter is correct. The FMP describes the 
Council's responsibilities. The Council's intended rebuilding plan 
review schedule is in Amendment 16-1. This schedule does not relieve 
NMFS of its duty to review, every two years, overfished species 
rebuilding plans for progress toward rebuilding goals. In addition, 
NMFS has worked with the Council staff to add a sentence to the FMP at 
the end of Section 4.5.3.6 to read, ``Regardless of the Council's 
schedule for reviewing overfished species rebuilding plans, the 
Secretary of Commerce, through NMFS, is required to review the progress 
of overfished species rebuilding plans toward rebuilding goals every 
two years, per the Magnuson-Stevens Act at 16 U.S.C. 304(e)(7).'' This 
statement is added to the FMP for the sake of clarity and in no way 
changes the intent or effect of either the FMP or Amendment 16-1.
    Comment 10: We recommend that Amendment 16-1 be expanded to include 
a discussion of the procedures that would be used to revise rebuilding 
plans. Rebuilding parameters specified in the FMP should be changed 
only when new scientific information is available that would warrant 
modification of these parameters. Changes to specifications for 
TMIN, TMAX, and TTARGET should only 
occur in response to a resolution of scientific uncertainty. These 
values should not be revised to accommodate greater direct or indirect 
harvest of overfished species.
    Response: As described above in the responses to Comments 3 and 4, 
TMIN is the minimum time that it would take to rebuild the 
stock in the absence of fishing. An estimate of a stock's rebuilding 
time in the absence of fishing depends upon the estimate of that 
stock's growth rate. A stock's growth rate is affected by recruitment 
as reduced by natural mortality. Our understanding of recruitment rates 
tends to change with each new stock assessment, as new data are added 
to the assessment and as new year classes enter the fishery. Thus, as 
stock assessments are updated for each overfished species with the best 
available science, the TMIN estimate for those species will 
likely also be updated. TMIN is calculated from T0 
(the year the species was declared overfished) and that rebuilding 
start date would not change.
    TMAX is TMIN plus one mean generation time. 
Thus, a species' estimated TMAX could change if that 
species' estimated TMIN changes. TMAX could also 
change if the best available scientific information on a species' mean 
generation time changes, which would be characterized as reduced 
uncertainty about the mean generation time parameter.
    Unlike TMIN and TMAX, TTARGET is 
not set based solely on scientific information about a particular 
stock's recruitment or life history characteristics. TTARGET 
is TMIN, plus a time period that ``may be adjusted upward to 
the extent warranted by the needs of fishing communities and 
recommendations by international organizations in which the United 
States participates,'' although TTARGET may not exceed 
TMAX. Section 4.5.3.4 of the FMP, as added by Amendment 16-
1, provides examples of when rebuilding plan parameters might be 
changed, but does not limit triggers for those changes: ''...Since the 
target year [TTARGET] is a key rebuilding parameter, it 
should only be changed after careful deliberation. For example, the 
Council might recommend that the target year be changed if, based on 
new information, they determine that the existing target year is later 
than the recomputed maximum rebuilding time (TMAX) or if a 
recomputed harvest control rule would result in such a low optimum 
yield as to cause substantial socioeconomic impacts. These examples are 
not definitive: the Council may elect to change the target year because 
of other circumstances. However, any change to the target year or 
harvest control rule must be supported by commensurate analysis.'' If 
updated scientific information in a new stock assessment for a 
particular species warrants a change to that species' TMIN 
and TMAX, the Council may also consider changing the 
TTARGET for that species. In particular, TTARGET 
might be revised if that revision would prevent the complete closure of 
one or more sectors of the fishery.
    Comment 11: The Council's preferred alternative for the setting of 
standards used to determine whether rebuilding progress has been 
adequate to achieve rebuilding goals is that each rebuilding plan would 
have its own set of standards specific to the overfished stock in 
question. We ask that the Council's SSC or some other scientific body 
be convened to develop standards for measuring progress of rebuilding 
plans so as to meet the obligations of the Council's preferred 
alternative and to ensure that rebuilding time frames are not modified 
in the future based solely on fisheries management's failure to achieve 
fishing mortality related restrictions.
    Response: NMFS agrees with the commenter's suggestion to ask the 
Council's SSC to review and develop standards for measuring the 
progress of rebuilding plans. NMFS made this request to the Council and 
SSC at the Council's November 2003 meeting. NMFS also made this request 
to the Council in its letter of approval for Amendment 16-1. In that 
letter, NMFS recommended that setting standards for measuring the 
progress of rebuilding plans be included in the SSC's Terms of 
Reference for the Stock Assessment Review (STAR) processes. NMFS review 
of the adequacy of progress of

[[Page 8869]]

rebuilding plans will be primarily informed by stock assessment 
updates. By including the setting of rebuilding plan progress standards 
in the STAR processes for overfished species, the NMFS/Council process 
for developing and reviewing stock assessments would continue the link 
between stock assessments and rebuilding plans for overfished species.
    Comment 12: As the Council and its SSC work to develop standards 
for measuring the progress of rebuilding plans, we recommend adopting a 
standard such that if the probability of achieving TTARGET 
falls below 50 percent, then progress will be considered inadequate and 
the harvest control rule must be adjusted to increase the probability 
of rebuilding within TTARGET to at least 50 percent. We 
further recommend that, on an annual basis, NMFS and/or the Council 
compare annual total mortality levels with specified OY values to 
determine if overages have occurred. If overages have occurred, an 
inseason adjustment to harvest mortality rates should be made to 
compensate for these overages.
    Response: Section 4.5.3.6 of the FMP, as inserted by Amendment 16-
1, includes examples of standards that might be used to review 
rebuilding plan progress. The standard provided by the commenter is 
included in that section of the FMP and would be reviewed for use with 
particular overfished stocks in the process described in the response 
to Comment 11.
    NMFS is required to annually report to Congress on whether ABC 
values have been exceeded, as exceeding an ABC set at FMSY 
would be considered overfishing. In looking at whether ABC values have 
been exceeded, NMFS also notes whether OY values have been exceeded and 
works with the Council to revise management measures so that OYs for 
the same species for subsequent years are not exceeded. Under the 
Technical Guidance at Section 1.3, OYs are target levels that, so long 
as they are less than or equal to MSY, should not be exceeded more than 
50 percent of the time, nor on average. None of the West Coast 
groundfish OYs are knowingly set higher than MSY. Management measures 
are intended to achieve OYs without exceeding them, unless the 
achievement of a particular species' OY would negatively affect the 
rebuilding of a co-occurring overfished species. In such a case, 
management measures would be designed to keep the harvest under the OY 
of the healthy stock in order to rebuild the overfished stock. Thus, 
NMFS will continue to monitor whether the fisheries have exceeded ABCs 
or OYs and will continue to work with the Council to make inseason 
adjustments to management measures to prevent the fisheries from 
regularly exceeding OY target levels.
    The Technical Guidance at Section 3.4 suggests that ''...[S]tock 
rebuilding should be monitored closely so that adjustments can be made 
when rebuilding milestones are not being met for whatever reason. For 
example, if target rebuilding Fs (fishing mortality rates set for 
overfished species management) are exceeded due to quota over-runs, 
subsequent target Fs should typically be adjusted downwards to put the 
stock back on the rebuilding time table.'' For West Coast groundfish, 
NMFS and the Council monitor stock rebuilding progress through regular 
stock assessments. Stock assessments take harvest overages and 
underages into account in evaluating the status of a stock and whether 
rebuilding milestones are being met. F rates set subsequent to each new 
stock assessment will be set to keep the stock on its rebuilding 
trajectory.
    Comment 13: As we read Amendment 16-1, it does not require the 
Council and NMFS to include in a rebuilding plan those measures that 
are necessary to rebuild the overfished species in question. We are 
particularly concerned that Amendment 16-1 fails to mandate that the 
Council and NMFS include in rebuilding plans the bycatch minimization 
and habitat protection measures necessary to rebuild overfished 
groundfish species. The Magnuson-Stevens Act requires that each FMP 
minimize adverse effects [of fishing activities] on essential fish 
habitat, identify actions to protect essential fish habitat, and 
include all practicable measures to minimize bycatch and bycatch 
mortality. Further, Amendment 16-1 violates the Magnuson-Stevens Act's 
requirement that rebuilding plans be sufficient ``to end overfishing in 
the fishery and to rebuild affected stocks of fish'' (16 U.S.C. 
1854(e)(3)(A)) because it suggests that rebuilding plans could use 
``flexible specifications'' that would be implemented through the 
annual or biennial harvest specifications and management measures 
process. These types of specifications are so vague as to be 
meaningless and offer no protection to overfished species.
    Response: West Coast groundfish fisheries are multi-species 
fisheries and the FMP covers over 80 species of fish. The nine 
overfished species managed under the FMP co-occur with many other, more 
abundant stocks. Because of this commingling of overfished and more 
abundant stocks, the varied fisheries that take groundfish all tend to 
have some effect on at least one of the overfished species. The FMP 
addresses how the fisheries as a whole are to be managed, whereas 
rebuilding plans are species-specific and define the parameters that 
govern the rebuilding of a particular species. The harvest 
specifications and management measures, on an annual or biennial basis, 
address the fisheries as a whole. Regulations implemented through the 
harvest specifications and management measures are intended to address 
all of the fisheries that take groundfish and, in large part, to 
minimize total catch of overfished species. Management measures in 
these regulatory packages are based on the most recently available 
scientific information on the status of the various groundfish stocks 
and fisheries. In managing a multi-species fishery, it is not necessary 
or practical to include all of the management measures that will be 
used to rebuild a particular overfished species in that species' 
rebuilding plan. It is important for the FMP as a whole to provide the 
structure to implement a variety of different management measures to 
rebuild overfished stocks, and to manage the fisheries as a whole in 
accordance with the Magnuson-Stevens Act. Relying on the whole FMP to 
protect overfished stocks within a multi-species fishery does not 
violate the Magnuson-Stevens Act.
    The FMP and its rebuilding plans are sufficient ``to end 
overfishing in the fishery and to rebuild affected stocks of fish'' (16 
U.S.C. 1854(e)(3)(A). They are neither vague nor meaningless. This 
Amendment 16-1 sets out the required elements for a rebuilding plan. 
The FMP states in section 4.6.1.5. that ``OY recommendations will be 
consistent with established rebuilding plans and achievement of their 
goals and objectives. . . . (b) In cases where a stock or stock complex 
is overfished, Council action will specify OY in a manner that complies 
with rebuilding plans developed in accordance with Section 4.5.2. The 
Plan further states at 5.1.4 ``For any stock the Secretary has declared 
overfished or approaching the overfished condition, or for any stock 
the Council determines is in need of rebuilding, the Council will 
implement such periodic management measures as are necessary to rebuild 
the stock by controlling harvest mortality, habitat impacts, or other 
effects of fishing activities that are subject to regulation under the 
biennial process. These management measures will be consistent with any 
approved rebuilding plan.'' Most management measures used in the 
fishery are described in section 6

[[Page 8870]]

of the FMP. The existing emergency rule for groundfish for January and 
February 2004, (69 FR 13222; January 8, 2004), implements the first 
four rebuilding plans, and the interim rebuilding strategies 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 rebuilding plans. 
The management of overfished species for 2004 is summarized at 69 FR 
1380.
    The Magnuson-Stevens Act at section 303(a) describes the required 
provisions of any Federal fishery management plan. Sub-paragraph 
303(a)(7) requires that the FMP describe and identify essential fish 
habitat (EFH) and ``minimize to the extent practicable adverse effects 
on such habitat caused by fishing...'' Sub-paragraph 303(a)(11) 
requires that the FMP ``establish a standardized reporting methodology 
to assess the amount and type of bycatch occurring in the fishery, and 
include conservation and management measures that, to the extent 
practicable and in the following priority: (A) minimize bycatch; and 
(B) minimize the mortality of bycatch which cannot be avoided.''
    Amendment 11 to the FMP provided a description within the FMP of 
EFH for West Coast groundfish. Amendment 11 was challenged in American 
Oceans Campaign v. Daley 183 F. Supp. 2d1 (D.C.C. 2000,) along with 
challenges to fisheries managed by the Caribbean, Gulf of Mexico, New 
England, and North Pacific fishery management councils. For West Coast 
groundfish, the Court found that NMFS had not conducted an adequate 
National Environmental Policy Act (NEPA) analysis on the effects of 
fishing on groundfish EFH. NMFS is drafting an environmental impact 
statement (draft EIS) on groundfish EFH and is scheduled to release the 
draft EIS for public review through the Environmental Protection Agency 
in February 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 on 
information that was available in 1998, when the amendment was 
completed. Since that time, there have been notable increases in 
funding for EFH research and improvements in ocean habitat mapping 
technologies. These research and mapping improvements are informing the 
drafting of the new EFH DEIS. Until the completion of that DEIS, 
Amendment 11's descriptions of EFH for each of the overfished species 
must serve to characterize species-specific EFH and to inform 
management measures intended to rebuild those 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. The Council used these habitat 
descriptions in the development of its Rockfish Conservation Areas 
(RCAs), which are intended to protect the suite of continental shelf 
and slope overfished species in waters where they are commonly found. 
RCAs are primarily intended to protect overfished stocks from being 
incidentally harvested by vessels targeting more abundant species. 
Closure of these areas, however, also protects habitat within the RCAs 
from the effects of groundfish fishing gear. NMFS anticipates that the 
new EFH EIS will allow the Council to incorporate more data-rich 
descriptions of the EFH of individual groundfish species into its 
groundfish fishery management planning.
    Section 303(a) of the Magnuson-Stevens Act requires that the FMP as 
a whole include a description of EFH and EFH protection measures. It 
does not require that each amendment to the FMP describe EFH and 
provide EFH protection measures. The commenter is correct in stating 
that Amendment 16-1 does not require overfished species rebuilding 
plans to include EFH protection measures. However, the commenter is 
incorrect in then concluding that overfished species are not adequately 
protected by the FMP.
    Amendment 13 to the FMP addressed bycatch in the West Coast 
groundfish fisheries and was also challenged in Court, Pacific Marine 
Conservation Council, Inc. v. Evans, 200 F. Supp. 2d1194 (N.D. Calif. 
2002). The Court held that Amendment 13 failed to establish an adequate 
bycatch reporting methodology, did not comply with the duty to minimize 
bycatch and bycatch mortality, and violated NEPA because NMFS did not 
take ``hard look'' at the environmental consequences of Amendment 13, 
and failed to consider a reasonable range of alternatives and their 
environmental consequences. In particular, the Court concluded that 
Amendment 13 failed to establish a standardized reporting methodology 
because it failed to establish either a mandatory or an adequate 
observer program. Further, it failed to minimize bycatch and bycatch 
mortality because it failed to include all practicable management 
measures in the FMP itself. The Court also found a lack of reasoned 
decisionmaking because four specific bycatch reduction measures (fleet 
size reduction, marine reserves, vessel incentives, and discard caps) 
were rejected without consideration on their merits. With respect to 
NEPA, the environmental assessment prepared for Amendment 13 failed to 
address adequately the ten criteria for an action's significance set 
forth in the Council on Environmental Quality (CEQ) regulations at 40 
CFR 1508.27(b), and also failed to analyze reasonable alternatives, 
particularly the immediate implementation of an adequate at-sea 
observer program and bycatch reduction measures.
    NMFS is drafting an EIS to address the court's requirement for a 
new NEPA analysis on bycatch in the groundfish fisheries and is 
scheduled to release the draft EIS for public review through the 
Environmental Protection Agency in early 2004. Further information on 
this EIS is available at: http://www.nwr.noaa.gov/1sustfsh/groundfish/eis_efh/pseis/. NMFS has implemented numerous bycatch reduction 
measures since the Council's approval of Amendment 13 in 2000. The 
agency has supported full retention or full utilization Exempted 
Fishing Permit (EFP) programs for the Washington arrowtooth flounder 
trawl, yellowtail rockfish trawl and longline dogfish fisheries, and 
for the California flatfish trawl fishery. Shorter-than-year-round 
fishing seasons have been set for various species and sectors of the 
groundfish fleet in order to protect different overfished groundfish 
species. Amendment 14 to the FMP implemented a permit stacking program 
for the limited entry fixed gear fleet that reduced the number of 
vessels participating in the primary sablefish fishery by about 40 
percent. In 2003, NMFS implemented a buyback of limited entry trawl 
vessels and their permits, reducing the groundfish trawl fleet by about 
one-third. NMFS has implemented gear modification requirements that 
restrict the use of trawl gear in rockier habitat and constrain the 
catching capacity of recreational fishing gear. Higher groundfish 
landings limits have been made available for trawl vessels using gear 
or operating in areas where overfished species are less likely to be 
taken. Species-to-species landings limit ratios have been thoroughly 
re-examined in a groundfish bycatch model first introduced in 2002 and 
modified each intervening year as new observer program data become 
available. The development and use of this bycatch model and the 
implementation

[[Page 8871]]

of the NMFS West Coast Groundfish Observer Program (WCGOP) in August 
2001 serve to address the court's order that NMFS implement an adequate 
bycatch assessment methodology. The RCAs described earlier in this 
document and implemented through 50 CFR 660.304 and the harvest 
specifications and management measures are large time/area closures 
that affect the entire West Coast and are specifically designed to 
reduce the incidental catch of overfished groundfish species in 
fisheries targeting more abundant stocks.
    The FMP, as amended by Amendment 16-1, complies with the Magnuson-
Stevens Act at section 303(a)(11). NMFS has had the WCGOP, which uses a 
standardized reporting methodology, in place since August 2001. Data 
from this observer program, from historic observer programs, and from 
fishery-dependent data inform the bycatch model for West Coast 
groundfish fisheries. These data sources together with their use in the 
bycatch model, which is used to analyze where and when different 
sectors of the groundfish fleet have targeted and may target 
groundfish, comprise an adequate reporting methodology on the amount 
and type of bycatch occurring in the fishery. NMFS has implemented 
numerous management programs and measures to reduce bycatch in the 
groundfish fisheries. The upcoming draft EIS on bycatch in the 
groundfish fisheries will provide information on how NMFS might further 
improve its bycatch reduction program for West Coast groundfish 
fisheries.
    Comment 14: Amendment 16-1 fails to mandate an adequate observer 
program for the Pacific Coast groundfish fishery. While Amendment 16-1 
does require NMFS to ``implement an observer program through a Council-
approved regulatory framework,'' (FMP Section 6.1.5.2) it does not 
contain any requirements for the scope or adequacy of this observer 
program. The Magnuson-Stevens Act requires that NMFS establish in the 
FMP a bycatch assessment methodology that is sufficient to show ``the 
amount and type of bycatch occurring in the fishery.'' 16 U.S.C. 
1853(a)(11). The court in PMCC v. Evans, supra, rejected Amendment 13 
in part because it failed to establish a mandatory and adequate 
observer program in the FMP. Because Amendment 16-1 does not mandate an 
adequate observer program in the FMP, it violates the Magnuson-Stevens 
Act and fails to cure Amendment 13's failure under PMCC v. Evans.
    Response: At 16 U.S.C. 1853(a)(11), the Magnuson-Stevens Act 
requires that FMPs, among other things, ``establish a standardized 
reporting methodology to assess the amount and type of bycatch 
occurring in the fishery...'' Amendment 16-1 revises the FMP so that it 
states at section 6.5.1.2, ``The [NMFS] Regional Administrator will 
implement an observer program through a Council-approved Federal 
regulatory framework. Details of how observer coverage will be 
distributed across the West Coast groundfish fleet will be described in 
an observer coverage plan. NMFS will publish an announcement of the 
authorization of the observer program and description of the observer 
coverage plan in the Federal Register.''
    NMFS first implemented an observer program for the West Coast 
groundfish fisheries using a standardized bycatch reporting methodology 
in August 2001. The WCGOP observer coverage plan is available via the 
internet at: http://www.nwfsc.noaa.gov/research/divisons/fram/Observer. 
NMFS published its announcement of the authorization of the observer 
program and description of the observer coverage plan on January 10, 
2002 (67 FR 1329). In the first year of the WCGOP (August 2001-August 
2002), NMFS focused observer coverage largely on the non-whiting 
groundfish trawl fleet, with some pilot effort in the nontrawl limited 
entry and open access fleets. Observer coverage for the nontrawl fleet, 
particularly for limited entry vessels with sablefish endorsements 
expanded during the second year of the observer program (September 
2002-August 2003). In September 2003, NMFS reported to the Council on 
bycatch modeling and observer data developments. WCGOP has focused its 
coverage on the limited entry trawl fleet because that fleet annually 
makes greater than 95 percent (by weight) of commercial West Coast 
groundfish landings coastwide (PacFIN, 1999-2003). Under the WCGOP 
coverage plan, the program has a goal of 10-percent coverage of trawl 
landings in any one year. With its 30-40 observers available each year, 
the WCGOP has been able to select each trawl fleet participant for 
coverage for at least one cumulative limit period in each year. 
Observer coverage levels are dependent upon the number of vessels 
actively participating in the fishery and on available program funding. 
Data from the first year of the observer program are available on the 
WCGOP site, mentioned earlier in this paragraph. NMFS is evaluating 
data from the second year of observer coverage and plans to release a 
data report on the WCGOP activities over September 2002-August 2003 in 
January 2004.
    Following the release of the first year of WCGOP data in January 
2003, NMFS incorporated observer program data on the bycatch of 
overfished species into the bycatch model. The Council began to use 
observer data to inform inseason groundfish management at its April 
2003 meeting. For the 2004 fishing year, NMFS has further revised the 
bycatch model to incorporate discard rates on both overfished and 
targeted species, as generated by observer data. Because the second 
year of the WCGOP increased coverage of the limited entry nontrawl 
fleet, NMFS plans to further modify the 2004 bycatch model to 
incorporate nontrawl data once it has compiled and released that second 
year's data. The agency expects that data from the second year of the 
WCGOP will be incorporated into inseason groundfish fisheries 
management by the April 2004 Council meeting, and will be used in the 
development of 2005-2006 management measures.
    With Amendment 16-1, the FMP mandates an observer program for the 
groundfish fishery, which NMFS has implemented. The commenter also 
wishes the FMP to discuss the scope and adequacy of an observer 
program, whereas the FMP defers the design of the observer program to 
NMFS.
    Over the past year, NMFS has been reviewing the agency's approach 
to standardized bycatch monitoring programs for all federally managed 
fisheries. The report, ``Evaluating Bycatch: A National Approach to 
Standardized Bycatch Monitoring Programs,'' is available on the 
internet at: http://www.nmfs.noaa.gov/bycatch.htm. Also available at 
that website is the ``NOAA Fisheries Objectives, Protocol, and 
Recommended Precision Goals for Standardized Bycatch Reporting 
Methodologies.'' This latter report addresses the question of the 
adequacy of an observer program or other standardized reporting 
methodology by setting ``precision goals'' for monitoring programs. 
According to this report, the levels of precision NMFS strives to 
achieve for fishery resources, excluding species protected under the 
ESA or MMPA, caught as bycatch in a fishery as ``a 20-30 percent CV 
[coefficient of variation] for estimates of total discards (aggregated 
over all species) for the fishery; or if total catch cannot be divided 
into discards and retained catch then the recommended goal for 
estimates of total catch is a CV of 20-30 percent.'' In setting these 
precision goals, NMFS recognizes that ``(1) there are intermediate 
steps in increasing precision which may not immediately achieve the 
goals; (2) there are circumstances in which higher levels of precision 
may be desired, particularly

[[Page 8872]]

when management is needed on fine spatial or temporal scales; (3) there 
are circumstances under which meeting the precision goal would not be 
an efficient use of public resources; and (4) there may be significant 
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 implemented and 
alternative allocation schemes [for observer coverage] are being 
evaluated to optimize sample allocations by strata to achieve the 
recommended goals of precision of bycatch estimates for the major 
species of concern.'' The next step beyond a developing observer 
program is a ``mature'' program ``in which some form of an optimal 
sampling allocation scheme has been implemented. The program is 
flexible enough to achieve the recommended goals of precision of 
bycatch estimates for the major species of concern considering changes 
in the fishery over time.''
    As discussed above, NMFS has released the second year of observer 
data in January 2004 (http://www.nwfsc.noaa.gov/research/divisions/fram/Observer). Because observer coverage in the WCGOP has been largely 
focused on the trawl fishery, NMFS expects that it will have achieved 
the NMFS precision goals of 20-30 percent CV for estimates of total 
discards in the trawl fishery and of 20-30 percent CV for estimates of 
species-specific discards of those overfished species that are commonly 
taken in the trawl fishery. For overfished species that are either not 
commonly taken in the trawl fishery, such as yelloweye rockfish, or 
species that are unavailable to the fisheries because of large area 
closures, such as cowcod, NMFS expects that the current trawl-focused 
sampling program will not achieve the 20-30 percent CV precision goal. 
As it works toward becoming a mature observer program, the WCGOP will 
likely have to increase observer coverage of nontrawl vessels in order 
to get a more precise estimate of yelloweye rockfish bycatch. For 
cowcod, a rare event species with large portions of its habitat closed 
to fishing, evaluation of annual mortality may have to take some form 
other than a fishery observation program.
    At section 6.3.3, the FMP identifies the management need for an 
observer program or other bycatch measurement program as an aid for the 
Council to ``better identify and prioritize the bycatch problems in the 
groundfish fishery, based on the expected benefits to the U.S. and on 
the practicality of addressing these problems.'' The Council has used 
data from WCGOP to re-shape its landings limits and time/area closures. 
The Council has also used WCGOP data to evaluate species-to-species 
landings limit ratios, as well as species-to species catch ratios in 
the bycatch model. NMFS expects that the WCGOP will continue to meet 
the Council's need to identify and prioritize bycatch problems in the 
groundfish fishery, and that WCGOP data will continue to directly 
inform both annual and inseason management measures.
    Comment 15: On the issue of what legal obligations apply if a 
groundfish species is listed under the ESA. Amendment 16-1 must make 
absolutely clear that NMFS and the Council must comply with all 
obligations imposed by both the Magnuson-Stevens Act and the ESA.
    Response: Amendment 16-1 establishes a new section 4.5.3.7 in the 
FMP. This section provides guidance on how the Council and NMFS would 
address the mandates of the Magnuson-Stevens Act and the ESA if a 
groundfish species were to be listed as either threatened or endangered 
under the ESA at some future time. Section 4.5.3.7 states that 
``measures under a[n ESA] recovery plan or 'no jeopardy' standards in a 
biological opinion will supercede [Magnuson-Stevens Act] rebuilding 
plan measures and targets if they will result in the stock rebuilding 
to its target biomass by an earlier date than the target year 
identified in the current rebuilding plan.'' This section is intended 
to guide the Council and NMFS to ensure that, if a species is listed 
under the ESA, rebuilding and recovery will follow the mandates of both 
the Magnuson-Stevens Act and the ESA, while also rebuilding the stock 
at the most rapid rate required by law. Amendment 16-1 does not imply, 
nor does it have the effect of providing NMFS and/or the Council with 
an avenue to fail to comply with either the Magnuson-Stevens Act or the 
ESA for any species that may be managed under both of these laws.
    Comment 16: In our review of the amendatory language for the FMP, 
we noted that Section 4.2 of the FMP (Determination of MSY or MSY Proxy 
and BMSY) contains some outdated language, ``...management 
should avoid fishing rates that hold biomass below BMSY for 
long periods.'' This language does not comport with the Magnuson-
Stevens Act and should be removed from the FMP.
    Response: NMFS has worked with Council staff to ensure that this 
sentence is removed from the FMP. The paragraph containing this 
sentence is essentially narrative and the referenced sentence not only 
does not comport with the Magnuson-Stevens Act, but also does not 
comport with FMP policies for setting harvest rates. NMFS and Council 
staff believe that leaving this sentence in the FMP was an editorial 
oversight and removing it now in no way changes the intent or effect of 
either the FMP or Amendment 16-1.
    Comment 17: Amendment 16-1 adds a new sentence to the FMP that 
reads in reference to the decline of overfished stock abundance, 
``Further declines below the overfished levels in the 1990s were due 
mostly to much lower than expected recruitment.'' While recruitment is 
a big part of the current plight of groundfish, many other factors 
contributed to the condition of these species. Improper accounting of 
bycatch in the 1980s and 1990s and the failure to heed scientific 
advice were contributing factors to the decline of groundfish stocks. 
Amendment 16-1 also proposes to delete language regarding a historical 
account of the Council's use of fishing mortality rates based on 
scientific information. We urge NMFS to keep these discussions in the 
FMP to better document the genesis of current fishing mortality rates.
    Response: NMFS has worked with Council staff to retain the 
historical discussion of how the Council and its SSC have reviewed and 
revised groundfish harvest policies over time. This historical 
information provides a more accurate characterization of groundfish 
overharvest in the 1990s. As discussed in the FMP, groundfish science 
in the 1990s was characterized in part by increasing evidence that 
groundfish recruitment rates were lower than had been thought. A 2000 
review of groundfish harvest rates by the Council's SSC showed that 
then-current scientific information indicated both lower than 
historically estimated recruitment levels for West Coast groundfish and 
a corresponding need for lower than historically used harvest rates. 
Since 2000, NMFS and the Council have set ABCs for groundfish species 
at the following rates: F40% for flatfish, F50% 
for rockfish (including thornyheads), and F45% for other 
groundfish such as sablefish and lingcod. Upon reviewing this 
historical language, NMFS and Council staff agreed that the sentence 
discussed by the commenter should be changed to read, ``Further 
declines below the overfished levels in the 1990s were due in large 
part to harvest rate policies that were later discovered to not be 
sustainable. More recent stock assessments indicate that West Coast

[[Page 8873]]

groundfish stocks likely have lower levels of productivity than other 
similar species worldwide. Based on this retrospective information, 
harvest rate policies in the 1990s were too high to maintain stocks at 
BMSY. The Council revised its harvest rate policies for 
lower levels of production, described [later in the FMP].'' This 
section of the FMP is essentially narrative in nature and this revision 
would in no way change the intent or effect of either the FMP or 
Amendment 16-1.

Federal Regulations under Amendment 16-1

    Regulations to implement Amendment 16-1 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 
action similarly provide a framework within Federal groundfish 
regulations for future species-specific rebuilding plans. On November 
7, 2003 (68 FR 63053), NMFS published a Notice of Availability for 
Amendment 16-2 to the FMP, which would set the first four overfished 
species rebuilding plans (canary rockfish, darkblotched rockfish, 
lingcod, POP) in the FMP and implement those rebuilding plans within 50 
CFR 660.370. Public scoping for Amendment 16-3, which would cover the 
next four rebuilding plans (bocaccio, cowcod, widow rockfish and 
yelloweye rockfish), was held at the Council's November 2003 meeting. 
The Council is scheduled to finalize Amendment 16-3 at its April 2004 
meeting, after which it will submit the amendment to NMFS for review. 
The final rebuilding plan for Pacific whiting, will be Amendment 16-4, 
is scheduled for Council consideration and NMFS implementation in 2004.

Classification

    The Administrator, Northwest Region, NMFS, has determined that 
Amendment 16-1 is necessary for the conservation and management of the 
Pacific Coast groundfish fishery and that it is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a FRFA describing the impact of this action on 
small entities. The FRFA incorporates the IRFA which was summarized in 
the proposed rule on September 5, 2003 (68 FR 52732).
    The following is a summary of the FRFA. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained in the SUMMARY and BACKGROUND of the preamble to the 
proposed rule for this action and at the beginning of this final rule. 
There are no recordkeeping, reporting, or other compliance issues 
forthcoming from this proposed rule. This action does not duplicate, 
overlap, or conflict with other Federal rules. None of the comments 
received on the proposed rule addressed the economic impacts of the 
rule.
    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 1,560 vessels participate in 
the West Coast groundfish fisheries. Of those, about 410 vessels are 
registered to limited entry permits issued for either trawl, longline, 
or pot gear. About 1,150 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 
final 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.
    This final rule is administrative in nature and 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 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, and defining the 
interaction of a rebuilding plan with recovery plans for a rebuilding 
species that is subsequently listed under the ESA.
    For the main issue considered in this action, the form of 
rebuilding plans, the Council considered 4 alternatives. The first 
alternative, the status quo alternative, would have maintained 
rebuilding plan formatting standards from Amendment 12. These status 
quo formatting standards were disapproved by the Court because they did 
not set rebuilding plans in the form of an FMP, an FMP amendment, or 
Federal regulations. The Council did not adopt the status quo 
alternative because it had already been disapproved by the Court. The 
second alternative would have implemented rebuilding plans as FMP 
amendments, with rebuilding parameters specified in the FMP. This 
second alternative was not adopted by the Council because it would have 
created a burdensome process for reviewing and revising rebuilding plan 
parameters and goals, possibly slowing the inclusion of the most 
recently available science into rebuilding plans. The third alternative 
would have implemented rebuilding plans entirely as Federal 
regulations, with TTARGET and a harvest control rule for 
each overfished species specified in regulations. This third 
alternative was not adopted by the Council because it would have 
separated rebuilding plan parameters and goals from rest of the 
Council's policies on groundfish harvest rates, which are found within 
the FMP. The final and preferred alternative specifies TTARGET 
and the harvest control for each overfished species in Federal 
regulations, and places the formulas and methodology for determining 
rebuilding parameters in the FMP. The preferred alternative was chosen 
because it requires a clear record in the FMP of the rebuilding plan 
standards that were in place at the start of each rebuilding plan, 
while also maintaining a current record in Federal regulations of the 
rebuilding plan parameters that directly govern the setting of annual 
or biennial harvest levels.
    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.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries,

[[Page 8874]]

Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: February 19, 2004.
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. Section 660.370 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. 04-4286 Filed 2-25-04; 8:45 am]
BILLING CODE 3510-22-S