[Federal Register Volume 69, Number 71 (Tuesday, April 13, 2004)]
[Rules and Regulations]
[Pages 19347-19358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8382]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 031125288-4102-02; I.D. 110303A]
RIN 0648-AR35


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Amendment 16-2

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 16-2 to the 
Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 16-2 
amended the FMP to include overfished species rebuilding plans for 
lingcod, canary rockfish, darkblotched rockfish, and Pacific ocean 
perch (POP) within the FMP. This final rule adds two rebuilding 
parameters to the Code of Federal Regulations (CFR) for each overfished 
stock, the target year for rebuilding and the harvest control rule.
    Amendment 16-2 addressed the requirements of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) to 
protect and rebuild overfished species managed under a Federal FMP. 
Amendment 16-2 also responded 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 May 13, 2004.

ADDRESSES: Copies of Amendment 16-2 and the final environmental impact 
statement/regulatory impact review/initial regulatory flexibility 
analysis (FEIS/RIR/IRFA) are available from Donald McIsaac, Executive 
Director, Pacific Fishery Management Council (Council), 7700 NE 
Ambassador Place, Portland, OR 97220, phone: 503-820-2280. These 
documents are also available online at the Council's website at http://www.pcouncil.org.

FOR FURTHER INFORMATION CONTACT:  Becky Renko (Northwest Region, NMFS), 
phone: 206-526-6150; fax: 206-526-6736 or; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

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

Background

    Amendment 16-2 revised the FMP to include overfished species 
rebuilding plans for lingcod, canary rockfish, darkblotched rockfish, 
and POP. This final rule implements Amendment 16-2 by adding two 
rebuilding parameters, the target year in which the stock would be 
rebuilt under the adopted rebuilding plan (TTARGET) and the 
harvest control rule, to the CFR at 50 CFR 660.370 for each overfished 
stock.
    Amendment 16-2 addressed the requirements of the Magnuson-Stevens 
Act) to protect and rebuild overfished species managed under a Federal 
FMP. Amendment 16-2 also responded to a Court order in Natural 
Resources Defense Council, Inc. v. Evans, 168 F. Supp. 2d 1149 (N.D. 
Cal 2001,), in which NMFS was ordered to provide Pacific Coast 
groundfish rebuilding plans as FMPs, FMP amendments, or regulations, 
per the Magnuson-Stevens Act.
    A Notice of Availability for Amendment 16-2 was published on 
November 7, 2003 (68 FR 63053). NMFS requested comments on the 
amendment under the Magnuson-Stevens Act FMP amendment review 
provisions for a 60-day comment period, ending January 6, 2004. A 
proposed rule was published on December 5, 2003 (68 FR 67998), 
requesting public comment through January 5, 2004. During the Amendment 
16-2 and proposed rule comment period, NMFS received four letters of 
comment. These letters are addressed later in the preamble to this 
final rule. The preamble to the proposed rule for this action provides 
additional background information on the fishery and on this final 
rule. Further detail on Amendment 16-2 also appears in the FEIS/RIR/
IRFA for this action which was prepared by the Council.
    After consideration of the public comments received on the 
amendment, NMFS approved Amendment 16-2 on January 30, 2004. As 
required by the standards established by Amendment 16-1, the rebuilding 
plans adopted under Amendment 16-2 for lingcod, canary rockfish, 
darkblotched rockfish, and POP specified the following rebuilding 
parameters in the FMP: 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 target year in which 
the stock would be rebuilt under the adopted rebuilding plan 
(TTarget). Other information relevant to rebuilding was also 
included. The estimated rebuilding parameters will serve as management 
benchmarks in the FMP and the FMP will not be amended if the values for 
these parameters change after new stock assessments and rebuilding 
analyses are completed, as is likely to happen.
    Amendment 16-1 specified two rebuilding parameters, TTARGET and the 
harvest control rule for the rebuilding period, that are to be codified 
in Federal regulations for each individual species rebuilding plan. 
This final rule adds these rebuilding parameters to the CFR at 50 CFR 
660.370 for lingcod, canary rockfish, darkblotched rockfish, and POP. 
TTARGET is the year in which there is a 50-percent 
likelihood that the stock will have been rebuilt with a given mortality 
rate. The harvest control rule expresses a given fishing mortality rate 
that is to be used over the course of rebuilding. These parameters will 
be used to establish the optimum yields (OYs-harvest specifications) 
for species with rebuilding plans. Conservation and management goals 
defined in the FMP require the Council and NMFS to manage to the 
appropriate OY for each species or species groups, including those OYs 
established for rebuilding overfished species. The OYs and management 
measures will be set on an

[[Page 19348]]

annual or biennial basis, and will address the fisheries as a whole. 
Regulations implemented through the harvest specifications and 
management measures are based on the most recently available scientific 
information and are intended to address all of the fisheries that take 
groundfish and to keep the total catch of groundfish, including 
overfished species, within their respective OYs. 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.
    If, after a new stock assessment, the Council and NMFS conclude 
that either or both of the parameters defined in regulation should be 
revised, the revision will be implemented through the Federal 
rulemaking process, and the updated values codified in the Federal 
regulations. NMFS believes that the FMP with the newly added rebuilding 
plans will be sufficient ``to end overfishing in the fishery and to 
rebuild affected stocks of fish'' (16 U.S.C. 1854(e)(3)(A).
    Amendment 16-2 will be followed by Amendment 16-3. A notice of 
intent to prepare an Environmental Impact Statement (EIS) was published 
on September 12, 2003 (68 FR 53712) for Amendment 16-3. If approved, 
Amendment 16-3 will contain rebuilding plans for bocaccio, cowcod, 
widow rockfish and yelloweye rockfish. The Council is scheduled to take 
final action on the Amendment 16-3 rebuilding plans at its April 5-9, 
2004 meeting. The notice of availability of the Draft EIS is scheduled 
for publication in June 2004.

Comments and Responses

    NMFS received four letters of comment on the proposed rule to 
implement Amendment 16-2: three letters were received from 
environmental advocacy organizations, and one letter was received from 
the U.S. Department of the Interior. These comments are addressed here:
    Comment 1: The proposed target dates for rebuilding Amendment 16-2 
species are inconsistent with the Magnuson-Stevens Act because the 
target rebuilding dates are not as short as possible.
    Response: NMFS believes that the specified rebuilding time periods 
for the four overfished species are consistent with the legal 
requirements of the Magnuson-Stevens Act and with the national standard 
guidelines. The Magnuson-Stevens Act does not state that rebuilding 
must be completed in the shortest time possible, rather it requires the 
time for rebuilding to be as short as possible, taking into account 
certain factors. The Magnuson-Stevens Act, section 304 (e)(4)(A), and 
the national standard guidelines at 50 CFR 600.310 (e)(4)(A) recognize 
the following factors that enter into the specification of a time 
period for rebuilding: the status and biology of the stock or stock 
complex; interactions between stocks or stock complexes and the marine 
ecosystem; the needs of fishing communities; recommendations of 
international organizations in which the U.S. is a participant; and 
management measures under an international agreement in which the U.S. 
participates.
    According to the national standard guidelines at 50 CFR 
600.310(e)(ii)(B)(2), if the year the stock would be rebuilt in the 
absence of fishing (TMIN)is 10 years or less, then the 
specified time period for rebuilding may be adjusted upward to the 
extent warranted by the needs of fishing communities and 
recommendations of international organizations in which the U.S. is a 
participant. However, the rebuilding period may not exceed 10 years 
unless international agreements, which the United States is a party to, 
dictate otherwise.
    Of the four overfished stocks affected by this rulemaking, lingcod 
was the only species in which TMIN was estimated to be 10 
years or less. As permitted by the Magnuson-Stevens Act and the 
national standard guidelines, the needs of the fishing community were 
taken into consideration when the rebuilding period for lingcod was 
established that would rebuild the stock by 2009. It should be noted, 
that the difference between the TMIN rebuilding year of 2007 
(the Maximum Conservation Alternative) and the rebuilding year of 2009 
under Council's preferred alternative was 2 years.
    Lingcod are caught in wide range of commercial and recreational 
fisheries both on the continental shelf and nearshore areas. To achieve 
rebuilding by TMIN, management measures would need to be 
designed to prohibit the catch of lingcod until the stock was rebuilt. 
Any fishery in which bycatch occurs would need to be curtailed or 
eliminated to completely prevent bycatch of lingcod. The Maximum 
Conservation Alternative which would have achieved rebuilding by 
TMIN, was expected to result in a significant adverse 
socioeconomic impact due to the reduction in profits, personal income, 
and employment. NMFS believes that choosing the Council-preferred 
alternative, which results in a target year for rebuilding of 2009, was 
a reasonable accommodation to meet the needs of the fishing 
communities.
    According to the national standard guidelines at 50 CFR 
600.310(e)(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 U.S. 
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).'' All of the rebuilding 
periods for canary rockfish, darkblotched rockfish and POP are less 
than TMAX.
    The rebuilding probabilities (PMAX, which are estimated 
probabilities of rebuilding the stock by TMAX) for canary 
rockfish, darkblotched rockfish and POP range between 60 percent and 80 
percent. This represents a better than 50 percent likelihood that each 
of these stocks will be rebuilt (reach the BMSY biomass) by 
TMAX, while allowing sufficient access to overfished stocks, 
so that healthy groundfish stocks that co-occur with overfished species 
can be harvested. Canary rockfish are relatively unproductive but occur 
in a wide range of fisheries. The Council chose a TTARGET 
closer to TMAX (reflected in the relatively lower 60-percent 
rebuilding probability) in order to allow some bycatch in all of the 
various fisheries. The EIS for this amendment has further information 
regarding the reasons for the adopted rebuilding periods.
    Comment 2: Rebuilding target dates for lingcod and canary rockfish 
are based upon a 60 percent probability of achieving rebuilding within 
TMAX. This low probability results in target rebuilding 
dates that are close to TMAX, which leaves little room for 
uncertainties in stock status, recruitment success, accounting and 
management of fishing mortality and other factors. The rebuilding 
probabilities for Amendment 16-2 species should be closer to those 
suggested by 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).
    Response: As explained above in the response to comment 1, if 
TMIN is 10 years or greater, the national standard 
guidelines at 50 CFR 600.310(e)(ii)(B)(3), allow TTARGET to 
be adjusted upward to the extent warranted by the needs of fishing 
communities and

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recommendations by international organizations in which the U.S. 
participates, except that no such upward adjustment can exceed 
TMAX. The Technical Guidance recommends that TTARGET 
be set no higher than the midpoint between TMIN and 
TMAX.
    Adopting the midpoint as a binding criterion in all cases would not 
be consistent with the Magnuson-Stevens Act because it would not allow 
the factors in the Act at section 304(e)(4) and the national standard 
guidelines at 50 CFR 600.310(e)(4)(ii), which include the needs of 
fishing communities, 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 only with biological issues, 
and not with socioeconomic issues, which fishery management councils 
must consider, per the Magnuson-Stevens Act.
    Canary rockfish and lingcod are caught in a wide range of 
commercial and recreational fisheries both on the continental shelf and 
nearshore areas. The Council recognized the socioeconomic importance of 
the fisheries for co-occurring species to harvesters and communities 
and recommended target rebuilding periods that would allow the harvest 
of the healthy stocks while providing a strong likelihood the 
overfished stocks will recover within the targeted time period. NMFS 
agrees with the Council's recommended rebuilding goals.
    Comment 3: The groundfish fishery suffers from a variety of factors 
that create uncertainty in the rebuilding process. While estimates of 
catch have improved over time for the commercial fishery, the 
recreational fishery catch estimates remain problematic. Inadequate 
enforcement means some catch is never recorded. A standardized 
reporting methodology to assess the amount and type of bycatch in each 
West Coast fishery is incomplete. Without adequate enforcement and data 
collection methods, it is unlikely that the total mortality of the four 
overfished species will be consistent with the limits necessary to 
rebuild these species.
    Response: Many recent improvements have been made to the 
information systems used to manage the groundfish fishery. The 
improvements that are expected to reduce the types of uncertainty 
identified by the commenter include: the implementation of a West Coast 
Groundfish Observer Program (WCGOP) to collect commercial fishery data 
to improve discard and total catch estimates in the commercial fishery; 
the development of a new bycatch model to better estimate fleetwide 
impacts; replacement of the old Marine Recreational Fishery Statistical 
Survey (MRFSS) with new and more accurate statistical surveys; and the 
implementation of a vessel monitoring program to monitor compliance 
with depth-based management measures. NMFS believes that these data 
collection methods and enforcement mechanisms, which are discussed 
below, improve the agency's ability to monitor and enforce the harvest 
management measures specified for the fishery, and thereby keep the 
overfished species within the harvest levels established for 
rebuilding.
    NMFS recognizes that effective bycatch accounting and control 
mechanisms are necessary for staying within the total catch OYs 
established for rebuilding. NMFS agrees with the commenter that 
estimates of catch have improved over time for the commercial fishery. 
Since the inception of the WCGOP in August 2001, substantial 
improvements have been made in the data and models used to estimate 
fleet-wide discards in commercial fisheries. 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 been 
compiled into a usable form. 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. [For further 
information on the bycatch model, see the preamble to the 2003 and 2004 
proposed rules to implement specifications and management measures, 68 
FR 936, January 7, 2003, and 69 FR 1380, January 8, 2004.]
    Recreational catch data are compiled in the Recreational Fisheries 
Information Network (RecFIN) database. The types of data compiled in 
RecFIN include sampled biological data, estimates of landed catch plus 
discards, and economic data. The MRFSS, which includes field surveys 
and a random-daily phone survey, has been part of the RecFIN database 
system. The MRFSS was not initially designed for the purpose of 
estimating catch and effort at the level of precision needed for 
management or assessment, rather it was designed to provide a broad 
picture look of national fisheries. Comparisons with independent and 
more precise estimation procedures has shown wide variance in catch 
estimates. Inseason management of recreational fisheries using MRFSS 
has been complicated by large inseason variance of catch estimates. 
Washington and Oregon have used the MRFSS system as a supplement to the 
port sampling programs from which most of their recreational catch 
estimates are derived. Because California has had a greater dependence 
on MRFSS in estimating their recreational catch, catch estimates of 
California recreational catch have varied considerably.
    In recent years, many efforts have been made to improve the MRFSS 
system. In 2001 the Pacific States Marine Fisheries Commission (PSMFC), 
with support from NMFS, began a new survey to estimate party/charter 
boat (CPFV) fishing effort in California. This survey differed from the 
traditional MRFSS telephone survey of anglers to determine CPFV trips 
by 2-month period. The survey sampled 10 percent of the active CPFV 
fleet each week to determine the number of trips taken and the anglers 
carried on each trip. This 10-percent sample was then expanded to make 
estimates of total angler trips for Southern California and Northern 
California. However, increased sampling coverage is needed to improve 
the precision in estimates necessary for managing for the low OYs of 
overfished species like canary rockfish and bocaccio. In any 
statistical sampling program, a greater sample size is needed to more 
accurately predict rare events such as the catch of overfished species. 
Therefore, the Council and West Coast states requested a different 
system to replace MRFSS on the West Coast. NMFS agreed, and a new catch 
and effort estimation system is being developed.
    The MRFSS has been or is being phased out on the West Coast. 
Changes listed below are expected to result in improved recreational 
catch estimates. Beginning in January 2004, the MRFSS and State of 
California State Ocean Salmon Project were replaced by one all 
inclusive survey, the California Recreational Survey which will sample 
all fisheries and fishing modes. Since July 2003, Oregon has continued 
to use its Oregon Recreational Boat Survey and replaced MRFSS with a 
new inland boat and shore survey using the state's angler

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licenses to estimate effort. Since July 2003, Washington MRFSS has 
maintained its Ocean Sampling Program and replaced Puget Sound MRFSS 
boat and shore sampling with a new Puget Sound Boat Survey. The State's 
angler licenses will be used to estimate angler effort in the Puget 
Sound. Shore sampling was discontinued in July 2003. RecFIN funds 
formerly used to conduct MRFSS in the three states have been redirected 
to support, along with state funding, the cost of these new programs.
    In January 2004, NMFS implemented a vessel monitoring program to 
monitor compliance with closed and restricted areas, including the 
rockfish conservation areas. The Pacific Coast vessel monitoring 
program consists of declaration reports and a vessel monitoring system 
(VMS). The declaration reports, which aid enforcement in identifying 
vessels operating in a closed or restricted area, are reports sent by 
fishermen before leaving port on a fishing trip. The purpose of the 
declaration report is to identify their intent to legally fish within a 
Rockfish Conservation Area (RCA -large-scale depth-related areas where 
low overfished rockfish species are commonly found), the gear that will 
be used, and the fishery they are participating in. The VMS is used to 
track an individual vessel's geographic position through a satellite 
communication system. VMS transceiver units are required aboard all 
vessels registered to limited entry permits and will be used to track 
vessel activity in relation to closed areas within 200 nautical miles 
along the Pacific coast.
    NMFS expects that, taken together, these various improvements to 
commercial and recreational fisheries monitoring and sampling 
methodologies should greatly improve estimates of total mortality of 
overfished and other species.
    Comment 4: Amendment 16-2 does not contain management measures to 
rebuild overfished species. To ensure rebuilding goals are met, 
rebuilding plans need to include management measures to (1) ensure 
rebuilding targets are met, (2) account for and reduce bycatch, (3) 
reduce impacts of current fishing on habitats that are important to the 
overfished stocks and their prey species, and (4) aid in the 
enforcement of the management measures.
    Response: West Coast groundfish fisheries are multi-species 
fisheries and the FMP covers over 80 species of fish. The four 
overfished species affected by this action 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 nine species that has 
been declared overfished.
    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 include measures to 
implement rebuilding plans for 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. Rebuilding plans will provide the specific time period and 
fishing mortality rate that management measures implemented under the 
authority of the FMP be consistent with. 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 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 FMP as a whole provides direction on rebuilding overfished 
species in several places and includes, in Chapter 6, management 
measures and regulatory programs the Council uses and intends to use to 
meet its varied fishery management responsibilities. Section 6.1 
describes a series of management measures that the Council uses to 
control fishing mortality, including but not limited to: permits, 
licenses and endorsements; restrictions on trawl mesh size; landing 
limits and trip frequency limits; quotas, including individual 
transferable quotas; escape panels or ports for pot gear or trawl or 
other net gear; size limits; bag limits; time/area closures; other 
forms of effort control including input controls on fishing gear such 
as restrictions on trawl size or longline length or number of hooks or 
pots; and allocation of species or species groups between fishing 
sectors. Section 6.2 among other things authorizes the Council to close 
fishing seasons, either as time/area closures set pre-season or 
inseason, in order to protect overfished species. Section 6.3 of the 
FMP deals with bycatch management and measures the Council has taken in 
recent years to reduce bycatch. Essential fish habitat (EFH) is 
addressed in section 6.6. As described below in the response to this 
comment, NMFS is in the process of reviewing the FMP's approach to EFH. 
Nonetheless, it is the FMP as a whole that sets the Council's 
management philosophies and practices for all groundfish species and 
protects overfished species, not just the specific rebuilding plans for 
those species.
    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

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essential fish habitat 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 in the midst of drafting an EIS on 
groundfish EFH and plans to release the draft EIS for public review 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 Rockfish Conservation Areas (RCAs), 
which are intended to protect the suite of continental 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.
    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 EA prepared for Amendment 13 failed to address adequately the 
ten criteria for an action's significance set forth in the Council on 
Environmental Quality 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 in the process of 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 on February 27, 2004. The 
draft EIS on bycatch provides information necessary to further improve 
the bycatch reduction program for West Coast groundfish fisheries. 
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. Through the issuance of 
exempted fishing permits (EFPs), the agency has supported the 
collection of data needed to assess the feasibility of full retention 
measures in the following fisheries: Pacific whiting, arrowtooth 
flounder, yellowtail rockfish, nearshore flatfish, and the dogfish 
fishery. NMFS has also supported the use of EFPs to test the 
effectiveness of flatfish selective trawl gears. 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 rocky habitat and that 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.
    Implementation of the NMFS WCGOP in August 2001 addressed the 
Court's order that NMFS implement an adequate bycatch assessment 
methodology, which uses a standardized reporting methodology. NMFS 
believes that the WCGOP comprises an adequate reporting methodology for 
estimating the amount and type of bycatch occurring in the fishery. 
Amendment 16-1 added provisions to the FMP that made this program 
mandatory.
    In 2002, a bycatch model was first used to examine species-to-
species landings limit ratios. Data from this observer program, from 
historic observer programs, and from fishery-dependent data are used in 
the bycatch model for West Coast groundfish fisheries. WCGOP data are 
used in analyzing where and when different sectors of the groundfish 
fleet have targeted and may target groundfish. Each intervening year 
since 2002, the bycatch model has been modified to incorporate new 
WCGOP data. The bycatch model has been used in the development of 
Rockfish Conservation Areas (RCAs - large time/

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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) which were 
implemented through 50 CFR 660.304 and the harvest specifications and 
management measures.
    Comment 5: NMFS should, at a minimum, include measures to compare 
total mortality estimates at the end of each year with that year's OY 
values to determine if any overages have occurred. If so, an adjustment 
should be made in the following year's OY as early in that year as 
possible to compensate for the overages. Such measures would be 
consistent with recommendations in the Technical Guidance to make 
downward adjustments of subsequent year fishing mortality rates in 
response to OY overages for overfished species.
    Response: The Magnuson-Stevens Act requires NMFS to annually report 
to Congress on the status of the fisheries and to identify those 
fisheries that are overfished or approaching a condition of being 
overfished. Each year, NMFS prepares The Annual Report to Congress on 
the Status of the Fisheries which provides the mandated information and 
also identifies any stocks for which overfishing has occurred. 
Overfishing occurs when a stock or stock complex is subjected to a rate 
of fishing mortality that jeopardizes the stock's ability to produce 
maximum sustainable yield (MSY) on a continuing basis. For West Coast 
groundfish, the ABC is set at FMSY and exceeding the ABC is 
overfishing.
    When 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 as to reduce the likelihood that OYs 
for the same species will be exceeded in subsequent years. Management 
measures for healthy stocks 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. NMFS will continue to monitor whether the fisheries 
have exceeded acceptable biological catches (ABCs) or OYs and will 
continue to work with the Council to make inseason adjustments to 
management measures to prevent the fisheries from continually exceeding 
OY target levels.
    NMFS, the state fisheries agencies, and the Council monitor 
fisheries landings inseason. Commercial fisheries landings are 
monitored by a fish ticket system managed by the three states. State 
fish ticket data is compiled by the Pacific States Marine Fisheries 
Commission (PSMFC). Estimated commercial landings amounts are provided 
to the agencies and the public via the Pacific Fisheries Information 
Network (PacFIN). Depending on state funding and staffing levels, 
groundfish landings may be recorded in PacFIN anywhere from several 
days to a few months after the landings have been made. For this 
reason, fishery managers must estimate current landings levels of a 
particular species by extrapolating what we know has already been 
landed out to an estimate based on several different variables, such as 
past harvest rates in particular months, number of vessels 
participating in the fishery in those months, etc. With the time delays 
in this landings monitoring system, the Council does not have fully up-
to-date landings information when making its inseason adjustments or 
ABC/OY recommendations.
    The state fish ticket system and PacFIN monitor commercial 
fisheries landings. These systems do not include fish taken at sea and 
lost or discarded. While NMFS monitors total catch levels through at-
sea observer sampling programs, the agency does not have the staff, 
funding, or technology to monitor the thousands of trawl tows and trap 
and longline hauls that result in the fishery's total commercial catch. 
Instead, NMFS monitors a portion of the commercial fleet through 
observers and uses a model based on the observer data with fish ticket 
and other data to estimate total catch for the fleet.
    In the preamble to the proposed rule for the 2004 Annual 
Specifications and Management Measures (January 8, 2004, 69 FR 1380), 
NMFS described a bycatch model that is used both pre-season to develop 
management measures and inseason to modify management measures. This 
model is a ``total catch'' model, i.e. it calculates the total expected 
catch, not just fish that are actually landed. The model is updated 
annually with new WCGOP data. Observer data from the 2001-2002 
fisheries was used to develop 2004 management measures and discard 
estimates. NMFS just completed its analysis of 2002-2003 WCGOP data 
(http://www.nwfsc.noaa.gov/research/divisions/fram/observers/), and 
that analysis will be available to the Council for the development of 
the 2005-2006 fishery specifications and management measures.
    As with the commercial fisheries, PSMFC maintains a database for 
recreational fisheries, the Recreational Fisheries Information Network 
(RecFIN). Estimates of recreational fisheries catch and landings are 
available on the internet at http://www.recfin.org/. All three states 
deploy port samplers for at-dock sampling of recreational groundfish 
fisheries. Even more so than in commercial fisheries, recreational 
fisheries data may not be available to fisheries managers until several 
months after the subject fishing trips have occurred. Because the 
states of Washington and Oregon have smaller coastlines and smaller 
populations than California, they tend to directly sample a much 
greater proportion of their recreational fisheries catch than 
California does.
    In past years, California has relied on NMFS' MRFSS for its 
estimates of recreational fisheries catch. MRFSS uses a telephone 
survey of the general population to determine which persons in the 
population are anglers, and, of the anglers, how much of which species 
they are catching and landing. MRFSS was initially designed as an 
annual sampling program that would provide a snapshot of an entire 
year's harvest of different recreational species. Because MRFSS was the 
only tool for estimating recreational catch, the Council has used it 
for inseason management in recent years.
    Recreational fisheries data needs have increased notably since the 
Council first began managing the fisheries to rebuild overfished stocks 
in 2000. All three states, the Council, and NMFS have been concerned 
that data generated from MRFSS was not accurate or timely enough to 
support inseason management of recreational fisheries. Over 2002-2003, 
the agencies met through the PSMFC's RecFIN Data Committee and worked 
together to update their monitoring programs so as to better meet the 
coastwide need for improved recreational fisheries catch data. PSMFC 
reported to the Council on the planned changes to recreational 
fisheries data gathering in the three states at the Council's November 
2003 meeting. All three states have eliminated MRFSS as a sampling 
tool, focusing instead on at-dock sampling and angler interviews. While 
California will continue to use telephone interviews as one of its 
data-gathering methods, its survey population will be licensed 
California anglers, not the entire population of the State of 
California. California will also be increasing its at-dock sampling 
presence and providing some on-board observation of charterboats. 
Oregon and Washington will also be replacing their MRFSS general-
population surveys with

[[Page 19353]]

surveys specific to licensed anglers, and with increased at-dock and 
at-sea monitoring.
    The Technical Guidance at section 3.4 states that ''...Stock 
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 fishing mortality rates are exceeded due 
to quota over-runs, subsequent target fishing mortality rates should 
typically be adjusted downwards to put the stock back on the rebuilding 
time table.'' NMFS makes adjustments to OYs after conducting a stock 
assessment of the population of a particular species; these assessments 
occur every 2-4 years. (Previously, NMFS had been on a 3-year stock 
assessment cycle. With the adoption of Amendment 17, the science and 
management cycle has shifted from annual to biennial management. Under 
the biennial management cycle, stock assessments will be conducted 
every 2-4 years.) The decisions on which stock assessments to do which 
year will depend on the status of the stocks, and the availability of 
data and stock assessment personnel. In the years between assessments, 
NMFS and the Council address over-and under-harvests by adjusting 
management measures to try to achieve, but not exceed, OYs of several 
of the more abundant stocks will, of necessity, not be achieved in 
order to protect co-occurring overfished species.
    Stock assessments take harvest overages and underages into account 
in evaluating the status of a stock and whether rebuilding milestones 
are being met. New fishing mortality rates set subsequent to each new 
stock assessment will keep the stock on its rebuilding trajectory. NMFS 
does not plan to adopt a policy of regularly adjusting ABCs and OYs 
either inseason or annually to account for catch overages or underages 
from the previous year. Such a policy, if carried out over a period of 
several years, could result in wild fluctuations in harvest levels, 
further de-stabilizing fishing communities. Overages or underages will 
continue to be incorporated into new stock assessments and the 
appropriate adjustments to fishing mortality rates to remain on the 
rebuilding trajectories will be made at that time. As the Technical 
Guidance notes in several places, its guidance is intended to address 
the biological aspects of national standard 1 and does not incorporate 
the socio-economic considerations addressed by the Magnuson-Stevens Act 
and the other national standards.
    Comment 6: In the preamble to the proposed rule, NMFS states that 
the target year for rebuilding should only be changed in unusual 
circumstances, such as if, based on new information, the rebuilding 
target is greater than the maximum allowable time frame 
(TMAX) and if socio-economic reasons dictate otherwise. 
These are inappropriate reasons for changing the target rebuilding date 
because: (1) Shortening the rebuilding period to account for a revised 
TMAX provides no assurance that the species will be rebuilt 
in as short a time as possible, and (2) target rebuilding dates have 
already been lengthened for socio-economic reasons, further lengthening 
target rebuilding periods for socio-economic reasons will prevent 
rebuilding of the overfished populations.
    Response: NMFS believes that the specified rebuilding time periods 
for the four overfished species need to be consistent with the legal 
requirements of the Magnuson-Stevens Act and with the national standard 
guidelines. If a new stock assessment and rebuilding analysis result in 
a TMAX being a shorter duration than that previously 
predicted, NMFS would be required to keep TTARGET below 
TMAX. Discussion on setting target rebuilding dates can be 
found in the responses to Comment 1 and Comment 2, where we explain the 
Magnuson-Stevens Act and the national standard guideline requirements 
regarding rebuilding duration and factors that may affect the 
rebuilding period, as well as the Technical Guidance recommendations.
    Comment 7: The proposed rule presents the status of each Amendment 
16-2 stock when it was declared overfished, but omits the status of 
those species as of their most recent stock assessments. Those stock 
statuses should be shown, since the rebuilding parameters provided in 
the regulations reflect information from the most recent stock 
assessments.
    Response: The proposed rule reflects the rebuilding parameters that 
were adopted by the Council in June 2003. These parameters were based 
on the most recent stock assessments that were available at that time. 
Since June 2003, new stock assessments and rebuilding analyses were 
prepared and approved by the Council for POP and darkblotched rockfish. 
The most recent status of each overfished species can be found in the 
overfished species section of the preamble to the proposed rule for the 
2004 harvest specifications and management measures January 8, 2004 (69 
FR 1380). It is NMFS's intention to provide the most recent stock 
assessment and rebuilding analysis results with the preamble 
discussions in future proposed rules to implement the harvest 
specifications and management measures. The harvest specifications and 
management measures is a Federal rulemaking with a notice and comment 
period. This information will also be available within the annual Stock 
Assessment and Fishery Evaluation (SAFE) document. As explained earlier 
in this document under ``changes from the proposed rule,'' this final 
rule implements the most up-to-date rebuilding parameters for the four 
Amendment 16-2 overfished species. Any changes to these rebuilding 
parameters will be through a notice-and-comment rulemaking.
    Comment 8: Amendment 16-2 should be brought into compliance with 
the Magnuson-Stevens Act requirement at 304(e)(3)(a) that a rebuilding 
plan be designed ``to end overfishing in the fishery and to rebuild 
affected stocks of fish.'' To do so, rebuilding plans should include 
specific conservation and management measures designed to rebuild each 
species. The EIS for Amendment 16-2 should have included a range of 
management measures alternatives necessary to achieve the proposed 
rebuilding targets and time periods.
    Response: The rebuilding plans for the four overfished species are 
consistent with the Magnuson-Stevens Act requirements at 304(e)(3)(a) 
and, when considered as part of the FMP as a whole, are sufficient to 
``to end overfishing in the fishery and to rebuild affected stocks of 
fish.''
    The FMP is the Council's policy vehicle for addressing how the 
fisheries as a whole are to be managed, whereas rebuilding plans are 
species-specific and are intended to define the parameters the Council 
will use to 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 both to 
address all of the fisheries that take groundfish and to implement the 
requirements of rebuilding plans. 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. The response to Comment 4 further describes the components 
of the FMP that can be used to manage the fishery and rebuild 
overfished stocks.
    Comment 9: Accounting mechanisms must be established to accurately 
count bycatch of overfished species and other

[[Page 19354]]

marine life such as the use of an observer program with adequate 
coverage, Federal permit or licensing requirements, or other 
appropriate data collection methods. Bycatch accounting measures must 
also ensure that all sources of mortality data are made available to 
the public and incorporated into the annual specifications process in a 
timely manner.
    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...'' Adequate bycatch accounting is necessary 
for managing a fishery, and for keeping total catch within specified 
OYs.
    An observer program is one means for obtaining bycatch information 
in commercial fisheries. In August 2001, NMFS implemented the WCGOP 
which uses a standardized bycatch reporting methodology. The 
availability of the WCGOP observer coverage plan was announced on 
January 10, 2002 (67 FR 1329) and is available via the internet at: 
http://www.nwfsc.noaa.gov/research/divisions/fram/observers/.
    In the first year of the WCGOP (August 2001-August 2002,) 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 West Coast commercial 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. The 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 early 2004.
    Following the release of the first year of WCGOP data in January 
2003, NMFS incorporated WCGOP data on the bycatch of overfished species 
into 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. 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. Amendment 16-1 of the FMP added language that made 
the WCGOP a mandatory program for the groundfish fishery. The commenter 
also wishes the FMP to discuss the scope and adequacy of an observer 
program, whereas the FMP defers the design of the WCGOP 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 caught as bycatch in a fishery, excluding 
species protected under the ESA or MMPA, is 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 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 will be releasing the second year of 
observer data in January 2004. Because observer coverage in the 
groundfish fishery 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 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

[[Page 19355]]

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.
    In January 2004, NMFS implemented a vessel monitoring program to 
monitor compliance with closed areas, including the groundfish 
conservation areas. The Pacific Coast vessel monitoring program 
consists of declaration reports and VMS. With VMS, vessels registered 
to limited entry trawl vessels are required to install and use a mobile 
transceiver unit whenever the vessel is used to fish in state or 
Federal waters off the west coast. The VMS equipment records the 
vessel's geographic position and sends it to NMFS through a satellite 
communication system where it is stored in a database. VMS position 
data can be used in combination with observer data to better understand 
total fishing effort, shifts in fishing effort, and potential bycatch 
levels.
    Comment 10: Amendment 16-2 does not include provisions for the 
rebuilding plans of its subject species that would set standards for 
reviewing progress toward rebuilding for those species. This is a 
requirement of rebuilding plans according to Amendment 16-1. NMFS, as 
the agent of the Secretary of Commerce, has the duty to review 
rebuilding plans every two years to ensure adequate progress. Without 
established standards for determining adequacy of progress and triggers 
for modifying rebuilding parameters, there is a high probability that 
rebuilding plans will ultimately fail to achieve rebuilding.
    Response: NMFS believes that the rebuilding plans under Amendment 
16-2 are consistent with the requirements of the Magnuson-Stevens Act. 
The Magnuson-Stevens Act requires the Secretary to review rebuilding 
plans at intervals that may not exceed two years. During the Amendment 
16-1 process, for the purpose of clarity, NMFS 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).'' NMFS's review of the adequacy of progress on 
rebuilding plans will be primarily be done through stock assessment 
updates and are expected to follow the schedule defined by the 
Magnuson-Stevens Act.
    FMP Section 4.5.3.2, Contents of Rebuilding Plans, states that 
generally, ``rebuilding plans will contain ... 4. The process, and any 
applicable standards, that will be used during periodic review to 
evaluate progress in rebuilding the stock to the target biomass.'' 
While adopting these rebuilding plans, the Council and NMFS realized 
that standards for measuring the progress of rebuilding needed to be 
refined. Therefore, at the Council's November 2003 meeting, NMFS asked 
the Council's SSC to review and develop standards for measuring the 
progress of rebuilding. NMFS also made this request to the Council in 
its letter of approval for Amendment 16-1 and reminded the Council of 
this request in its letter of approval for Amendment 16-2. In these 
letters, 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. 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. 
NMFS fully expects that these standards will be defined before the 
Secretary's review in January 2006 and the standards will be included 
in the Council's annual SAFE document.
    Comment 11: Amendment 16-2 improperly opens the door for use of the 
mixed-stock exception, which is contrary to the requirements of the 
Magnuson-Stevens Act.
    Response: Amendment 16-2 does not open the door for what the 
commenter allege is the ``illegal use of the mixed-stock exception.'' 
Amendment 16-2 has no effect on the mixed-stock exception. Although the 
mixed-stock exception currently exists in the national standard 
guidelines, the Council has never exercised the exception. Amendment 
16-2 makes no change in the condition of its possible application.
    Comment 12: Marine sanctuaries are needed where fishing is 
prohibited. The rebuilding policy does not provide enough protection 
for fish stocks.
    Response: Marine sanctuaries are defined under the National Marine 
Sanctuaries Act (16 U.S.C. 1431-1445) as areas of the marine 
environment which have special conservation, recreational, ecological, 
historical, cultural, archeological, scientific, educational, or 
esthetic qualities that will improve the conservation, understanding, 
management, and wise and sustainable use of marine resources; enhance 
public awareness, understanding, and appreciation of the marine 
environment; and maintain for future generations the habitat, and 
ecological services, of the natural assemblage of living resources that 
inhabit these areas.
    Section 303(a) of the Magnuson-Stevens Act requires that the FMP as 
a whole include a description of EFH and EFH protection measures, but 
does not provide authority to implement marine sanctuaries. Further, it 
does not require that each individual amendment to the FMP describe EFH 
and provide EFH protection measures such as marine protected areas. The 
commenter is correct in stating that Amendment 16-2 does not contain 
requirements for marine sanctuaries. However, the commenter is 
incorrect in then concluding that overfished species are not adequately 
protected by the FMP.
    Comment 13: Commercial fisheries are causing stock depletion.
    Response: NMFS agrees that commercial fishing results in fishing 
mortality, as does recreational fishing. Declines below the overfished 
levels in the 1990s were due in large part to harvest rate policies 
that were based on the best scientific information at the time, but 
were later discovered to not be sustainable. More recent stock 
assessments indicate that West Coast groundfish stocks likely have 
lower levels of productivity than other similar species worldwide. A 
retrospective analysis determined that harvest rate policies in the 
1990s, though based on the best available information at the time, were 
too high to maintain stocks at BMSY.
    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 more precautionary rates (F40% for flatfish, F50% 
for rockfish, and F45% for other groundfish such as sablefish and 
lingcod).
    Comment 14: To ensure rebuilding, fishing mortality rates and 
rebuilding strategies should be upheld even when new information 
suggests that the stock

[[Page 19356]]

size is increasing more rapidly than expected.
    Response: Rebuilding plans are expected to be revised only when 
reviews reveal a significant discrepancy between current stock status 
and that projected in the original rebuilding plan or in earlier 
reviews. It is NMFS's intention that any changes to rebuilding 
strategies be made during the annual or biennial setting of harvest 
specifications and management measures and be established through a 
Federal rulemaking with a notice and comment period.

Changes From the Proposed Rule

    On January 8, 2004, NMFS published a proposed rule to implement the 
2004 fishery specifications and management measures January 8, 2004 (69 
FR 1380). This proposed rule contained revisions to the harvest control 
rules for POP and darkblotched rockfish that had originally been 
published in the Amendment 16-2 proposed rule. These revisions are now 
in place under the final 2004 fishery specifications and management 
measures that were published on March 9, 2004 at 69 FR 11064.
    The POP rebuilding parameters in the Amendment 16-2 proposed rule 
were based on a 2000 stock assessment that had resulted in a target 
rebuilding year of 2027 and a harvest control rule of F=0.0082. The 
2004 OY presented in the 2004 fishery specifications and management 
measures was based on a new stock assessment prepared in 2003. Because 
POP rebuilding parameters such as the unfished biomass and BMSY were 
updated with the new stock assessment, the POP harvest control rule in 
the final rule will be revised to F=0.0257 from F=0.0082. However, the 
target rebuilding year (2027) will remain the same as was announced for 
POP in the Amendment 16-2 proposed rule.
    Similarly, the darkblotched rockfish rebuilding parameters in the 
Amendment 16-2 proposed rule were based on a 2000 stock assessment that 
had resulted in a target rebuilding year of 2030 and a harvest control 
rule of F=0.027. The 2004 OY presented in the 2004 fishery 
specifications and management measures was based on a new stock 
assessment that was prepared in 2003 and results in the same target 
rebuilding year (2030) as was announced in the Amendment 16-2 proposed 
rule for the darkblotched rockfish rebuilding plan. However, because 
other rebuilding parameters such as the unfished biomass and BMSY were 
updated with the new stock assessment, the harvest control rule in the 
final rule will be revised to F=0.032 from F=0.027.

Classification

    The Administrator, Northwest Region, NMFS, has determined that 
Amendment 16-2 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.
    A Final Environmental Impact Statement (FEIS) for this action was 
filed with the Environmental Protection Agency on December 12, 2003. A 
notice of availability for the FEIS was published on December 19, 2003 
(68 FR 70795). In approving Amendment 16-2, on January 30, 2004, NMFS 
issued a Record of Decision identifying the selected alternative (see 
ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) as 
part of the regulatory impact review. The FRFA incorporates the IRFA, 
the comments and responses to the proposed rule, and a summary of the 
analyses completed to support the action. A copy of this analysis is 
available from NMFS (see ADDRESSES).
    During the comment period for the proposed rule, NMFS received four 
letters of comment, but none of these comments addressed the IRFA or 
impacts on small businesses. There are no recordkeeping, reporting, or 
other compliance issues forthcoming from this proposed rule. This rule 
does not duplicate, overlap, or conflict with other Federal rules.
    This action is needed because the Magnuson-Stevens Act at 304 
(e)(3) requires rebuilding plans for species that have been declared 
overfished. These plans must be in the form of FMPs, FMP amendments, or 
regulations. The objective of this proposed rule is to implement 
rebuilding parameters that will result in lingcod, canary rockfish, 
darkblotched rockfish and POP stocks returning to their MSY biomass 
levels.
    Amendment 16-2 responds to a Court order in Natural Resources 
Defense Council, Inc. v. Evans, 168 F. Supp. 2d 1149 (N.D. Cal 2001,), 
in which NMFS was ordered to provide Pacific Coast groundfish 
rebuilding plans as FMPs, FMP amendments, or regulations, per the 
Magnuson-Stevens Act. On October 27, 2003, the Court ordered NMFS to 
approve rebuilding plans for lingcod, canary rockfish, darkblotched 
rockfish, and POP by January 31, 2004.
    Amendment 16-2 follows the framework established by Amendment 16-1 
and amends the FMP to include rebuilding plans for canary rockfish, 
darkblotched rockfish, POP, and lingcod. For each 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 target year in which the stock 
would be rebuilt under the rebuilding plan (TTARGETt). No 
new management measures are proposed in Amendment 16-2, Amendment 16-1 
describes and authorizes the use of numerous types of management 
measures intended to achieve rebuilding. These management measures will 
be implemented through the biennial management process and will be used 
to constrain fishing to the targets identified in the rebuilding plans.
    The FEIS/RIR/IRFA for this final rule defines six alternative 
actions that were considered for each of the four overfished species. 
The alternatives present a range of rebuilding strategies in terms of 
rebuilding probabilities for each species. The no action alternative 
would be based on the ``40 10 harvest policy'', which is the default 
rebuilding policy for setting OYs. Under the 40 10 harvest policy, 
stocks with biomass levels below B40% have OYs set in relation to the 
biomass level. At B40%, an OY may be set equal to the ABC. However, if 
a stock's spawning biomass declines below B40%, the OY is scaled 
downward until at 10 percent (B10%) the harvest OY is set at zero 
unless modified for a species-specific rebuilding plan. In comparison 
to the other alternatives, (except the maximum conservation 
alternative) the 40 10 policy can result in lower OYs in the short 
term, when a stock is at a low biomass level, but allow greater 
harvests when a stock is at higher biomass levels. For further 
information on the 40 10 policy see the preamble for the annual 
specifications and management measures published on January 8, 1999(64 
FR 1316) or section 5.3 of the FMP.
    The 40-10 policy alternative could require short-term reductions in 
OYs for stocks at lower biomass levels than would be required under the 
other alternatives, except the maximum conservation alternative. Such 
reductions could result in reduced profits, income, and employment in a 
wide range of groundfish fisheries over a longer period of time than 
would occur with the other alternatives. The maximum conservation 
alternative,

[[Page 19357]]

based on a harvest mortality rate of zero, would be in place for each 
stock until the individual stock was rebuilt, resulting in the target 
rebuilding period for each stock being equal to TMIN. Each 
stock could be expected to rebuild fastest under this alternative, but 
at considerable socioeconomic cost. Because canary and darkblotched 
rockfish are caught in a wide range of other fisheries, a zero harvest 
mortality rate would likely result in the closure of other fisheries. 
The rebuilding of these stocks, even in the absence of fishing, is 
likely to result in many current participants in the commercial 
recreational fisheries as well as supporting businesses going out of 
business. The maximum harvest alternative for each overfished species 
was based on a 50-percent probability of rebuilding the stocks to their 
MSY biomass levels by TMAX. This alternative would delay 
rebuilding for the longest period of time with the intent of keeping 
harvests at the highest allowable levels for the duration of 
rebuilding. As a result, this alternative would have the least 
socioeconomic impact, in the short term. Delaying the rebuilding period 
under the maximum harvest alternative can also be expressed as the 
level of increased risk to the overfished stocks. Further delay in 
rebuilding could have a greater socioeconomic impact than the other 
alternatives, if currently healthy stocks were overfished.
    Intermediate alternatives were presented only as the rebuilding 
parameter values for the harvest rate, PMAX, and 
TTARGET. While keeping the number of alternatives manageable 
(recognizing that the five primary alternatives encompass the full 
range of reasonable alternatives) these additional alternatives were 
presented in the FEIS to support decision making and were structured 
around 10 percent increments in PMAX between 60 percent and 80 percent 
for each of the four overfished stocks. The 90 percent PMAX 
value was not evaluated because the effects were not significantly 
different from the Maximum Conservation Alternative.
    The socioeconomic impacts of the intermediate values fall within 
the range of the other alternatives that were fully analyzed in the 
FEIS analysis. Quantifying the differences between these alternatives 
is difficult given the lack of detailed socioeconomic data. The mixed 
stock exception alternative would allow higher harvests of canary 
rockfish and could be combined with any of alternatives (except the no 
action alternative). Since the demands of rebuilding canary rockfish 
will affect a range of fisheries, (because it constrains stocks), 
relaxing this constraint under any of the alternatives would allow a 
higher harvest level in some fisheries. However, fisheries with little 
or no canary rockfish bycatch, but with bycatch of other overfished 
species, would not necessarily benefit. This alternative was not 
considered for POP or lingcod, since they do not constrain stocks in 
fisheries where they are targeted or incidentally caught. The last set 
of alternatives considered were the Council's preferred alternatives 
for each species and are as follows: lingcod - 60-percent probability 
of rebuilding the stock to its MSY biomass by TMAX with a 
TTARGET of 2009 and a harvest rate of 0.0531 in the North 
and 0.0610 in the south; canary rockfish - 60-percent probability of 
rebuilding the stock to its MSY biomass by TMAX with a 
TTARGET of 2074 and a harvest rate of 0.0220, darkblotched 
rockfish - 80 percent probability of rebuilding the stock to its MSY 
biomass by TMAX with a TTARGET of 2030 and a 
harvest rate of 0.027, and POP - 70 percent probability of rebuilding 
the stock to its MSY biomass by TMAX with a TTARGET 
of 2027 and a harvest rate of 0.0082. The Council's preferred 
alternatives, were taken from the range of intermediate alternatives 
for each species.
    Rebuilding parameters associated with PMAX values less 
than 50 percent were considered, but rejected because they were not 
considered to be compliant with the requirements of the Magnuson-
Stevens Act as interpreted in a 2000 Federal Court ruling (Natural 
Resources Defense Council v. Daley, April 25, 2000, U.S. Court of 
Appeals for the District of Columbia Circuit, ). A mixed stock 
exception alternative was considered for darkblotched rockfish, but was 
rejected because the Council indicated that it should not be applied to 
darkblotched rockfish.
    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. The economic impacts of implementing these 
rebuilding plans will be shared among the participants. 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 
nongroundfish species. All but 10 20 of those vessels are considered 
small businesses by the SBA. Of the 450 groundfish buyers that 
regularly purchase groundfish, 38 buyers purchased groundfish product 
in excess of $1,000,000 in 2002. 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. NMFS does not 
know the proportion of recreational charter vessel operations that 
would be considered large businesses, but the agency believes that the 
majority of these businesses would be considered ``small'' businesses 
by the SBA. This rule is not expected to yield disproportionate 
economic impacts between those small and large entities.
    Implementation of specific rebuilding plans may entail substantial 
economic impacts on some groundfish buyers, commercial harvesters, and 
recreational operators. The Council preferred rebuilding alternatives 
specify annual OY levels for the overfished species that allow some 
harvest of healthy stocks to continue and are sufficient to mitigate 
some of the adverse economic impacts on these entities, while not 
compromising the statutory requirement for timely rebuilding.
    This action was developed after meaningful consultation and 
collaboration with tribal representatives on the Council who have 
agreed with the provisions that apply to tribal vessels. This action 
is, therefore, compliant with Executive Order 13175 (Consultation and 
coordination with Indian tribal governments).

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: April 6, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine 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
1. The authority citation for part 660 continues to read as follows:

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

0
2. Section 660.370, ``Overfished species rebuilding plans'' is revised 
to read as follows:

[[Page 19358]]

Sec.  660.370  Overfished species rebuilding plans.

    (a) Canary rockfish. The target year for rebuilding the canary 
rockfish stock to BMSY is 2074. The harvest control rule to 
be used to rebuild the canary rockfish stock is an annual harvest rate 
of F=0.022.
    (b) Darkblotched rockfish. The target year for rebuilding the 
darkblotched rockfish stock to BMSY is 2030. The harvest 
control rule to be used to rebuild the darkblotched rockfish stock is 
an annual harvest rate of F=0.032.
    (c) Lingcod. The target year for rebuilding the lingcod stock to 
BMSY is 2009. The harvest control rule to be used to rebuild 
the lingcod stock is an annual harvest rate of F=0.0531 in the area 
north of 40[deg]10' N. lat. and F=0.061 for the area south of 40[deg] 
10' N. lat.
    (d) Pacific ocean perch (POP). The target year for rebuilding the 
POP stock to BMSY is 2027. The harvest control rule to be 
used to rebuild the POP stock is an annual harvest rate of F=0.0257.
[FR Doc. 04-8382 Filed 4-12-04; 8:45 am]
BILLING CODE 3510-22-S