[Federal Register Volume 69, Number 129 (Wednesday, July 7, 2004)]
[Proposed Rules]
[Pages 40851-40856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15256]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 040618188-4188-01; I.D. 061404A]
RIN 0648-AS26


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Amendment 16-3

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS issues this proposed rule to implement Amendment 16-3 to 
the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 
16-3 amends the FMP to include overfished species rebuilding plans for 
bocaccio, cowcod, widow rockfish, and yelloweye rockfish within the FMP 
and would add two rebuilding parameters, the target year for rebuilding 
and the harvest control rule, to the Code of Federal Regulations (CFR) 
for each overfished stock. Amendment 16-3 is intended to address 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 16-3 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, as required by the Magnuson-Stevens Act. 
NMFS also proposes to update the list of rockfish species defined in 
the CFR to match those listed in the FMP.

DATES:  Comments must be submitted in writing by August 17, 2004. 
Copies of Amendment 16-3 and the Environmental Impact Statement/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EIS/
RIR/IRFA) for the amendment are available from Donald McIsaac, 
Executive Director, Pacific Fishery Management Council, 7700 NE. 
Ambassador Place, Portland, OR 97220.

ADDRESSES: You may submit comments on Amendment 16-3 or supporting 
documents, identified by [I.D. 061404A], by any of the following 
methods:
     E-mail: [email protected]. Include the I.D. 
number in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; or Rod McInnis, 
Acting Administrator, Southwest Region, NMFS, 501 West Ocean Blvd, 
Suite 4200, Long Beach, CA 90802-4213.
     Fax: 206-526-6736, Attn: Jamie Goen.

FOR FURTHER INFORMATION CONTACT: Jamie Goen (Northwest Region, NMFS), 
phone: 206-526-4646; fax: 206-526-6736 and; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the Internet 
at the Web site of the Office of the Federal Register's Web site at: 
http://www.gpoaccess.gov/fr/index.html.

Background

    Amendment 16-3 revises the FMP to include overfished species 
rebuilding plans for bocaccio, cowcod, widow rockfish, and yelloweye 
rockfish and adds specific rebuilding parameters to the Code of Federal 
Regulations (CFR) at 50 CFR 660.370, for each overfished species. This 
rulemaking is necessary to implement the rebuilding plans specified by 
Amendment 16-3.
    Amendment 16-3 addresses the requirements of the Magnuson-Stevens 
Act to protect and rebuild overfished species managed under a Federal 
FMP. Amendment 16-3 is also intended to partially respond to a Court 
order in Natural Resources Defense Council, Inc. v. Evans, 168 F. Supp. 
2d 1149 (N.D. Cal 2001), in which NOAA Fisheries was ordered to provide 
Pacific Coast groundfish rebuilding plans as FMPs, FMP amendments, or 
regulations, as required by the Magnuson-Stevens Act. A Notice of 
Availability for Amendment 16-3 was published on June 18, 2004 (69 FR 
34116).
    This proposed rule is based on recommendations of the Council, 
under the authority of the Pacific Coast Groundfish FMP and the 
Magnuson-Stevens Act. Background information and the Council's 
recommendations are summarized below. Further detail appears in the 
EIS/RIR/IRFA for Amendment 16-3.
    In the fall of 2000, NMFS had approved the first three rebuilding 
plans for lingcod, boccacio, and POP (September 5, 2000, 65 FR 53646). 
Subsequently, requirements for developing overfished species rebuilding 
plans were addressed in Amendment 12 to the FMP, which was submitted 
for public review (September 8, 2000, 65 FR 54475) and approved by NMFS 
on December 7, 2000.
    During NMFS's review of Amendment 12, the Agency considered whether 
the three previously approved rebuilding plans met the requirements of 
Amendment 12 and concluded that the plans did not. As a result, NMFS 
instructed the Council to re-submit the rebuilding plans for lingcod, 
boccacio, and Pacific ocean perch (POP). The final rule to implement 
Amendment 12 describes NMFS's revocation of the lingcod, boccacio, and 
POP rebuilding plans (December 29, 2000, 65 FR 82947). At that time, 
NMFS determined that while the rebuilding plans specified adequately 
protective harvest limits for these three species, the rebuilding plans 
did not meet all of the rebuilding plan requirements described in 
Amendment 12, and are not adequately explained and analyzed. In the 
absence of final rebuilding plans approved by NMFS, the groundfish 
fishery has continued to operate under interim rebuilding measures for 
these species.
    While NMFS and the Council were developing rebuilding plans that 
were consistent with the requirements of Amendment 12, NMFS notified 
the Council that canary rockfish and cowcod were overfished and that 
the Council must submit rebuilding plans for these species (January 4, 
2000, 65 FR 221). On January 11, 2001 (66 FR 2338), NMFS notified the 
Council that darkblotched and widow rockfish were overfished and that 
Council must submit rebuilding plans for these species.
    On August 20, 2001, a Federal magistrate ruled in National 
Resources Defense Council, Inc. v. Evans (N.D. Cal. 2001) that 
rebuilding plans under the FMP must be in the form of a plan amendment 
or proposed regulations as specified by the Magnuson-Stevens Act, 16 
U.S.C. 1854 (e)(3). In accordance

[[Page 40852]]

with the Court ruling, the magistrate issued an order setting aside 
those portions of Amendment 12 dealing with rebuilding plans (Amendment 
12 provided a framework for rebuilding plans that were not themselves 
plan amendments or proposed regulations). As a result of the 
magistrate's decision, the Council was required to amend the FMP to 
make rebuilding plans consistent with the Magnuson-Stevens Act.
    On January 11, 2002 (67 FR 1555), NMFS notified the Council that 
yelloweye rockfish was overfished and that the Council must submit a 
rebuilding plan. On April 15, 2002 (67 FR 18117), NMFS notified the 
Council that Pacific whiting was overfished and that the Council must 
submit a rebuilding plan.
    Amendment 16-1 was prepared, in part, to respond to the court 
order. Amendment 16 1 established a process for and standards by which 
the Council would specify rebuilding plans for groundfish stocks that 
are declared overfished. Amendment 16-1 also amended the FMP to require 
that Pacific Coast groundfish overfished species rebuilding plans be 
added into the FMP via FMP amendment, and implemented through Federal 
regulations. Amendment 16 1 was intended to ensure that overfished 
species rebuilding plans meet the requirements of the Magnuson-Stevens 
Act, in particular national standard 1 on overfishing and section 
304(e), which addresses rebuilding of overfished fisheries. NMFS 
approved Amendment 16-1 on November 14, 2003. The final rule to codify 
provisions of Amendment 16-1 was published in the Federal Register on 
February 26, 2004 (69 FR 8861).
    Under Amendment 16-1, 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 target year in which the stock would be rebuilt 
under the adopted rebuilding plan (TTarget), and the harvest 
control rule. Other relevant information listed in Amendment 16-1 will 
also be included in the FMP, including the probability of the stock 
attaining BMSY by TMAX (PMAX). These 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 are completed, as is likely to 
happen. The rebuilding plans will also be included in the periodic 
stock assessment and fishery evaluation (SAFE) reports required by 50 
CFR 600.315(e)(1). However, if and when these rebuilding parameters 
change, the rebuilding plans, as published in the SAFE document, will 
be amended to include updated parameters.
    Amendment 16-2, which NMFS approved on January 30, 2004, amended 
the FMP to include rebuilding plans for lingcod, canary rockfish, 
darkblotched rockfish, and POP. NMFS published a final rule 
implementing Amendment 16-2 on April 13, 2004 (69 FR 19347).
    As required by the standards established by Amendment 16-1, the 
rebuilding plans being adopted under Amendment 16-3 for bocaccio, 
cowcod, widow rockfish, and yelloweye rockfish include B0, 
BMSY, TMIN, TMAX, TTarget, 
and the harvest control rule for each species. If adopted, Amendment 
16-3 would add these parameters to section 4.5.4. of the FMP. Other 
relevant information on each of these overfished stocks, such as stock 
distribution, fishery interaction, and the rebuilding strategy would 
also be added to section 4.5.4 of the FMP if the rebuilding plans 
proposed under Amendment 16-3 are adopted.
    Amendment 16-1 specified two rebuilding parameters that are to be 
codified in Federal regulations for individual species rebuilding 
plans: the target year for rebuilding and the harvest control rule that 
is to be used during the rebuilding period. This proposed rule adds 
these rebuilding parameters to the Code of Federal Regulations (CFR) at 
50 CFR 660.370 for bocaccio, cowcod, widow rockfish and yelloweye 
rockfish. The target rebuilding year is the year in which there is a 50 
percent probability that the stock will be 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 would be used to establish the annual or biennial optimum 
yields (OYs). Conservation and management goals defined in the FMP 
require the Council and NMFS to manage to the appropriate harvest 
levels for a species or species groups, including those harvest levels 
established for rebuilding overfished species.
    If, after a new stock assessment, the Council and NMFS conclude 
that either or both of the parameters defined in the regulation should 
be revised, the revision will be implemented through the Federal 
notification and comment rulemaking process, and the updated values 
codified in the CFR. Generally, the target year should only be changed 
in unusual circumstances. Two such unusual circumstances include (1) if 
it is determined, based on new information, that the existing target 
year is later than the maximum rebuilding time (TMAX), or (2) if the 
harvest control rule calculated from the new information is estimated 
to result in such a low OY as to cause substantial socio-economic 
impacts. Any change to a harvest control rule must be fully supported 
by a corresponding analysis and updated through the Federal rulemaking 
process, which would include opportunity for public notice and comment.
    An approved rebuilding plan will be implemented through setting OYs 
and establishing management measures necessary to maintain the fishing 
mortality within the OYs to achieve objectives related to rebuilding 
requirements.
    At the Council's April 2004 meeting, rebuilding plans for bocaccio, 
cowcod, widow rockfish, and yelloweye rockfish were adopted and include 
the parameters listed below. When making the recommendation to 
implement these rebuilding plans, the Council sought to balance the 
rebuilding risks to each stock with the short and long-term socio-
economic costs borne by groundfish buyers, commercial harvesters, and 
recreational operators as a result of constraining the fisheries to 
reduce total mortality of these overfished species.

Bocaccio

    Assessment scientists and managers have treated West Coast boccacio 
as independent stocks north and south of Cape Mendocino, CA. The 
southern stock, which has been declared overfished, occurs south of 
Cape Mendocino, CA and the northern stock, which is not overfished, 
north of 48[deg] N. lat. in northern Washington (off Cape Flattery). 
The overfished southern bocaccio rockfish stock occurs in Central and 
Southern California waters, on the continental shelf and in nearshore 
areas, often in rocky habitat. Bocaccio are caught in both commercial 
and recreational fisheries in approximately equal amounts. Commercial 
catches mainly occur in limited entry trawl fisheries.
    Date declared overfished: March 3, 1999
    Status of the stock when declared overfished: In 1999, the biomass 
of the southern stock of bocaccio was believed to be at 2.1 percent of 
its unfished biomass level. In subsequent stock

[[Page 40853]]

assessments, the southern stock of bocaccio was believed to be at 3.6 
percent of its unfished biomass in 2002 and 7.4 percent of its unfished 
biomass in 2003. The northern stock of bocaccio has not been assessed.
    B0: 13,387 billion eggs in 2003
    BMSY: 5,355 billion eggs
    TMIN: 2018
    TMAX: 2032
    PMAX: 70 percent
    TTARGET: 2023
    Harvest control rule: F=0.0498
    Rebuilding strategy at the time of rebuilding plan adoption: 
Commercial management measures intended to limit catch of bocaccio 
include prohibiting retention of bocaccio or allowing low landing 
limits for incidental catch, reducing landing limits (cumulative trip 
limits) on co-occurring species, establishing extensive time/area 
closures, and restricting the use of trawl nets equipped with large 
footropes. Large areas off southern California, known as the Cowcod 
Conservation Areas or (CCAs), have been closed to groundfish fishing to 
protect cowcod. These closed areas also protect bocaccio. The CCAs are 
bounded by straight lines enclosing simple polygons. Beginning in 2002, 
time/area closures, referred to as Rockfish Conservation Areas (RCAs), 
also came into use as a way of decreasing bycatch of overfished 
species. RCAs enclose depth ranges where bycatch of overfished species 
is most likely to occur. The boundaries vary by season and fishery 
sector (trawl, non-trawl, and recreational), and may be modified in 
response to new information about the geographic and seasonal 
distribution of bycatch. Recreational management measures off 
California include depth closures, restricting fishing to shallow 
waters, bag limits, size limits, and seasonal closures.

Cowcod

    Cowcod are a species of large rockfish that ranges from Ranger Bank 
and Guadalupe Island in central Baja California to Mendocino County, 
California, and may infrequently occur as far north as Newport, Oregon. 
Adult cowcod are primarily found over high relief rocky areas. They are 
generally solitary, but occasionally aggregate. While cowcod are not a 
major component of the groundfish fishery, they are highly desired by 
both recreational and commercial fishers because of their bright color 
and large size.
    Date declared overfished: January 4, 2000 (65 FR 221)
    Status of the stock when declared overfished: 6-9 percent (STAT 
team preferred model) of its unfished biomass level in 1999. Within 
this range provided in the stock assessment, the Council and NMFS use a 
value of 7 percent of its unfished biomass level in 1999 based on the 
``best case'' scenario in the stock assessment.
    B0: 3,367 mt
    BMSY: 1,350 mt
    TMIN: 2062
    TMAX: 2099
    PMAX: 60 percent
    TTARGET: 2090
    Harvest control rule: F=0.009
    Rebuilding strategy at the time of rebuilding plan adoption: 
Commercial management measures intended to limit catch of cowcod 
include prohibiting retention of cowcod, reducing landing limits 
(cumulative trip limits) on co-occurring species, establishing 
extensive time/area closures, and restricting the use of trawl nets 
equipped with large footropes. Large areas off southern California, 
known as the CCAs, have been closed to groundfish fishing to protect 
cowcod. Because cowcod is a fairly sedentary species, establishment of 
a closed area is an important strategy for limiting cowcod fishing 
mortality. The CCAs in the Southern California Bight encompass two 
areas of greatest cowcod density, as estimated in 2000, based on 
historical cowcod catch and catch rates in commercial and recreational 
fisheries. To aid in enforcement, the CCA is bounded by straight lines 
enclosing simple polygons. Estimated fishery removals have been at 
levels sufficient to rebuild the stock since the CCAs were implemented, 
except in 2001, when 5.6 mt was caught in the Conception management 
area. Most of this catch occurred in the spot prawn trawl fishery; 
fishing for spot prawns with trawl gear has been subsequently 
prohibited. In addition to the CCAs, large depth-based time/area 
closures were implemented off California beginning in 2003, referred to 
as RCAs. RCAs were implemented as a way of decreasing bycatch of 
overfished species. RCAs enclose depth ranges where bycatch of 
overfished species is most likely to occur. The boundaries vary by 
season and fishery sector, and may be modified in response to new 
information about the geographic and seasonal distribution of bycatch. 
Recreational management measures to reduce recreational cowcod catches 
off California include: time/area closures (both CCAs and RCAs), 
restricting fishing for other groundfish species to shallow waters, 
non-retention of cowcod, bag limits for other groundfish species, and 
seasonal closures.

Widow rockfish

    Widow rockfish range from the western Gulf of Alaska to northern 
Baja California and are often found suspended in the water column in 
large schools. They are an important commercial species from British 
Columbia to central California, primarily caught with midwater trawl 
gear. Historically, there have been target fisheries for widow 
rockfish. Since declared overfished, most widow rockfish catches have 
occurred incidentally in the midwater fishery for Pacific whiting. 
Tribal midwater trawl fisheries account for a large part of the 
remainder of recent catches. Widow rockfish are a minor component of 
recreational groundfish fisheries.
    Date declared overfished: January 11, 2001 (66 FR 2338)
    Status of the stock when declared overfished: Following a stock 
assessment in 2000 and a revised rebuilding analysis in 2001, the stock 
was believed to be at 23.6 percent of its unfished biomass level. In a 
subsequent stock assessment, widow rockfish was believed to be at 22.4 
percent of its unfished biomass in 2002.
    B0: 43,580 million eggs
    BMSY: 17,432 million eggs
    TMIN: 2026
    TMAX: 2042
    PMAX: 60 percent
    TTARGET: 2038
    Harvest control rule: F=0.0093
    Rebuilding strategy at the time of rebuilding plan adoption: 
Commercial management measures intended to limit catch of widow 
rockfish include reducing landing limits (cumulative trip limits) on 
widow rockfish and co-occurring species and establishing extensive 
time/area closures. Beginning in 2002, time/area closures, referred to 
as RCAs, came into use as a way of decreasing bycatch of overfished 
species. RCAs enclose depth ranges where bycatch of overfished species 
is most likely to occur. The boundaries vary by season and fishery 
sector, and may be modified in response to new information about the 
geographic and seasonal distribution of bycatch. Because widow rockfish 
occur in the water column (midwater) and aggregate at night, 
elimination of target fishery opportunities is a relatively easy way of 
reducing widow rockfish bycatch. Management measures to reduce 
incidental catch of widow rockfish have been directed primarily at the 
Pacific whiting fishery, which has historically taken widow rockfish in 
relatively high amounts. While catch in other fisheries is sufficiently 
small, management measures are still intended to

[[Page 40854]]

discourage targeting on widow rockfish. In general, recreational 
management measures include depth closures, as needed, restricting 
fishing to shallow waters off California, bag limits, size limits, and 
fishing seasons established for each West Coast state. No recreational 
bag or size limits have been established for widow rockfish. However, 
general bag limits for rockfish may have some constraining effect on 
widow recreational catches.

Yelloweye rockfish

    Yelloweye rockfish are common from Central California northward to 
the Gulf of Alaska. They are bottom-dwelling, generally solitary, rocky 
reef fish. Boulder areas in deep water (>180 m) are the most densely 
populated habitat type, and juveniles prefer shallow-zone broken-rock 
habitat. They also occur around steep cliffs and offshore pinnacles. 
The presence of refuge space appears to be an important factor 
affecting their occurrence. Yelloweye rockfish are caught in a range of 
both commercial and recreational fisheries. Because of their preference 
for rocky habitat, they are more vulnerable to hook and line gear.
    Date declared overfished: January 11, 2002
    Status of the stock when declared overfished: Following a stock 
assessment in 2001, the stock was believed to be at 7 percent of its 
unfished biomass level off northern California and 13 percent of its 
unfished biomass level off Oregon. In a subsequent stock assessment, 
yelloweye rockfish was believed to be at 24.1 percent of its coastwide 
unfished biomass in 2002.
    B0: 3,875 mt
    BMSY: 1,550 mt
    TMIN: 2027
    TMAX: 2071
    PMAX: 80 percent
    TTARGET: 2058
    Harvest control rule: F=0.0153
    Rebuilding strategy at the time of rebuilding plan adoption: 
Commercial management measures intended to limit catch of yelloweye 
rockfish include prohibiting retention of yelloweye rockfish in the 
limited entry fixed gear and open access fisheries and allowing low 
landing limits for incidental catch in the limited entry trawl 
fisheries as part of minor shelf rockfish limits, reducing landing 
limits (cumulative trip limits) on co-occurring species, establishing 
extensive time/area closures, and restricting the use of trawl nets 
equipped with large footropes. Beginning in 2002, time/area closures, 
referred to as RCAs, came into use as a way of decreasing bycatch of 
overfished species. RCAs enclose depth ranges where bycatch of 
overfished species is most likely to occur. The boundaries vary by 
season and fishery sector, and may be modified in response to new 
information about the geographic and seasonal distribution of bycatch. 
In addition to the depth-based RCAs, a C-shaped closed area off the 
Washington coast near Cape Flattery, the Yelloweye Rockfish 
Conservation Area (YRCA), has prohibited recreational groundfish and 
halibut fishing in an area where yelloweye rockfish are concentrated 
since 2003. The YRCA is also a voluntary closed area for fishing with 
commercial longline gear for sablefish and troll gear for salmon. 
[Note: Areas closed by the RCAs and the YRCA partially overlap.] In 
general, recreational management measures include depth closures, as 
needed, restricting fishing to shallow waters off California, bag 
limits, size limits, and fishing seasons established for each West 
Coast state. Recreational management measures for yelloweye rockfish 
include closed areas, bag limits, and seasons. Beginning in 2004, 
retention of yelloweye rockfish has been prohibited coastwide and has 
been prohibited off Washington since 2002. Yelloweye rockfish has also 
been prohibited on most halibut fishing trips off Washington and Oregon 
since 2002.

New Rockfish Species in Regulations

    NMFS intends to update the list of rockfish species defined in the 
CFR at Sec.  660.302 to match the list of rockfish species included in 
the Pacific Coast Groundfish FMP. The FMP and CFR state that, 
``Rockfish includes all genera and species of the family Scorpaenidae, 
even if not listed, that occur in the Washington, Oregon, and 
California area.'' These species are already specifically listed in the 
FMP and will be added to the CFR. The following seven new rockfish 
species in the family Scorpaenidae are being listed in the CFR as 
species managed under the FMP: chameleon rockfish, dwarf-red rockfish, 
freckled rockfish, half-banded rockfish, pinkrose rockfish, pygmy 
rockfish, and swordspine rockfish. In addition, dusty rockfish is being 
corrected to read dusky rockfish.

Classification

    At this time, NMFS has not determined whether Amendment 16-3, which 
this proposed rule would implement, is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    The Council prepared a draft Environmental Impact Statement (EIS) 
that discusses the effects on the environment as a result of this 
action. A notice of availability for this draft EIS was published on 
April 9, 2004 (69 FR 18897). A copy of the draft EIS is available from 
the Council office. (see ADDRESSES)
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA has been prepared, as required by section 603 of the 
Regulatory Flexibility Act. The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A copy of the 
full analysis is available from the Council office (see ADDRESSES). A 
summary of the analysis follows.
    The purpose of this proposed action is to implement rebuilding 
plans for four overfished species, bocaccio, cowcod, widow rockfish and 
yelloweye rockfish. This action is necessary to meet the Magnuson-
Stevens Act requirements for overfished stocks which are defined in the 
national standard guidelines (50 CFR 600.310). National standard 1 
requires that remedial action be taken by preparing an FMP, FMP 
amendment or proposed regulation to end overfishing if it is occurring, 
rebuild overfished stocks to the maximum sustainable yield (MSY) level 
within an appropriate time frame, and to prevent stocks from becoming 
overfished if they are approaching an overfished threshold. The 
objective of this proposed rule is to implement rebuilding parameters 
that will result in bocaccio, cowcod, widow rockish, and yelloweye 
rockfish stocks returning to their MSY biomass levels.
     There are no recordkeeping, reporting, or other compliance issues 
forthcoming from this proposed rule. This proposed rule does not 
duplicate, overlap, or conflict with other Federal rules.
    The draft EIS/RIR/IRFA for this proposed rule defines five 
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 is 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% (40 
percent of the unfished biomass, a proxy for BMSY) have OYs 
set in relation to the biomass level. At B40% and greater, an OY may be 
set equal to the ABC. However, if a stock's spawning

[[Page 40855]]

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, the 40-10 harvest policy generally results in lower 
OYs in the short term, when a stock is at a low biomass level, but 
allows greater harvests when a stock is at higher biomass levels. For 
further information on the 40-10 harvest policy see the preamble to the 
final rule for Amendment 16-1 (February 26, 2004, 69 FR 8861) or 
Section 5.3 of the FMP. The 40-10 harvest policy alternative would not 
result in rebuilding for three of the four overfished species (i.e., 
only bocaccio would be rebuilt within TMAX) within the 
maximum allowable rebuilding time. Lack of rebuilding for these species 
makes this alternative not a legally-viable alternative and increases 
the risk to long-term productivity of the stock.
    The maximum conservation alternative, Alternative 4, specifies the 
most conservative, legally-compliant harvests that would allow these 
four species to rebuild and has the highest probability, 90 percent, of 
rebuilding within TMAX (except for cowcod which has a 60-
percent probability). Each stock is expected to rebuild fastest under 
this alternative, but at considerable socioeconomic cost. Short-term 
socioeconomic costs would be highest under this alternative due to 
severe restrictions on fishing opportunity to allow the stock to 
rebuild faster.
    The maximum harvest alternative, Alternative 1, for each overfished 
species was based on a 60 percent probability of rebuilding the stocks 
to their MSY biomass levels by TMAX, except for cowcod which 
was based on a 55 percent probability. 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. Because this alternative would allow fishermen an 
opportunity to harvest higher levels in the short-term, this 
alternative would have the least socioeconomic impact. However, 
allowing higher harvest levels in the short-term would slow down 
rebuilding and, thus, have the highest risk among the action 
alternatives of not rebuilding within TMAX.
    Intermediate alternatives, Alternatives 2 and 3, were defined for 
each overfished species and were based on 70 and 80 percent 
probabilities of rebuilding the stocks to their MSY biomass by 
TMAX (except for cowcod which was based on a 60- percent 
probability for Alternatives 2 and 3). The socio-economic impacts of 
the intermediate alternatives fall within the range of the other 
alternatives that were fully analyzed in EIS analysis. Alternative 2 
would have more socio-economic impacts than Alternative 1, but less 
than Alternative 3. Alternative 3 would have more socio-economic 
impacts than Alternative 2, but less than Alternative 4. Alternative 2 
would have a lower risk of not rebuilding within TMAX than 
Alternative 1, but higher than Alternative 3. Alternative 3 would have 
a lower risk of not rebuilding within TMAX than Alternative 
2, but higher than Alternative 4.
    After the draft EIS was made available by EPA for public review (69 
FR 18897, April 9, 2004), the Council selected their preferred 
alternatives at their April 2004 meeting. The Council's preferred 
alternatives for each species are as follows: bocaccio, Alternative 2 
(using the STATc Model)--70 percent probability of rebuilding the stock 
to its MSY biomass by TMAX with a TTARGET of 2023 and a 
harvest rate of 0.0498; cowcod, Alternatives 2 through 4 (all the 
same)--60 percent probability of rebuilding the stock to its MSY 
biomass by TMAX with a TTARGET of 2090 and a harvest rate of 
0.009; widow rockfish, Alternative 1 (using Model 8)--60 percent 
probability of rebuilding the stock to its MSY biomass by TMAX with a 
TTARGET of 2038 and a harvest rate of 0.0093; and yelloweye 
rockfish, Alternative 3--80 percent probability of rebuilding the stock 
to its MSY biomass by TMAX with a TTARGET of 2058 
and a harvest rate of 0.0153. The Council-preferred alternative for 
each species was chosen by balancing biological and economic risks, 
maximizing the likelihood of rebuilding the stock while minimizing the 
socio-economic impacts on the industry.
    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. For related fish-processing businesses, a 
small business is one that employs 500 or fewer persons. For wholesale 
businesses, a small business is one that employs not more than 100 
people. For marinas and charter/party boats, a small business is one 
with annual receipts not in excess of $6 million.
    The economic impacts of implementing these rebuilding plans will be 
shared among the participants and would vary according to their 
dependancy on groundfish-related income. The proposed action adopts 
rebuilding plans for four overfished species. The economic impact of 
implementing these rebuilding plans will be shared among groundfish 
buyers, commercial harvesters, and recreational operators. There are 
approximately 4,600 commercial vessels fishing from West Coast ports. 
Of these, 1,709 vessels had some involvement in West coast groundfish 
fisheries, 421 of those held groundfish limited entry permits, and an 
additional 771 participated in open access groundfish fisheries (if 
vessels derive more than 5 percent of total revenue from groundfish and 
do not have a limited entry permit, then they are considered to be 
participating in open access fisheries). After the buyback program in 
the fall of 2003, 91 limited entry trawl vessels and their permits were 
permanently retired, representing a 35 percent reduction in the 
capacity of the limited entry trawl fleet in terms of permits. 
Regarding buyers and processors, there are approximately 1,780 fish 
buyers on the West Coast, of which 732 bought at least some groundfish 
from commercial fishermen. Only 19 of the 732 fish buyers purchased 
more than $2 million worth of total harvest during the year 2000. In 
2001, there were an estimated 753 recreational fishing charter vessels 
operating in ocean fisheries on the West Coast: 106 in Washington, 232 
in Oregon and 415 in California.
    Most of these entities would qualify as small businesses under the 
SBA's criteria. A few processors/buyers may not qualify as small 
businesses. There are fewer than 9 processors/buyers on the West coast 
that employ more than 500 people and, therefore, may not qualify as 
small businesses. Of these 9 processors/buyers, they also process fish 
other than groundfish and operate in ports in Alaska. Most employees 
are likely employed in Alaska ports, due to the higher volume of fish 
processed in Alaska. In addition, most of these employees are seasonal 
based on when fisheries are open. Therefore, most of these processors/
buyers would not have more than 500 employees year round. No 
alternatives, other than those considered in the draft EIS, have been 
identified that would reduce the impacts on small entities. This 
proposed rule is not expected to yield disproportionate economic 
impacts between small and large entities.
    Implementation of specific rebuilding plans may entail substantial 
economic impacts on some groundfish buyers, commercial harvesters, and 
in the case of bocaccio, cowcod, and yelloweye rockfish, recreational 
operators. The economic impact will vary according to their dependency 
on groundfish-related income, the frequency of overfished species in 
their area of the coast, and the

[[Page 40856]]

severity of those species overfished status. The Council preferred 
rebuilding alternatives specify annual OY levels for the overfished 
species that are sufficient to mitigate some of the adverse economic 
impacts on these entities, while not compromising the statutory 
requirement for timely rebuilding. NMFS welcomes comments on this issue 
(see ADDRESSES).
    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 and 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: June 29, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

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

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

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

    2. In Sec.  660.302, the definition of ``Groundfish,'' is amended 
by adding seven new rockfish species and correcting ``dusty rockfish'' 
to read ``dusky rockfish'' in alphabetical order to read as follows:
* * * * *


Sec.  660.302  Definitions.

* * * * *
    Groundfish * * *
* * * * *
    chameleon rockfish, S. phillipsi
* * * * *
    dwarf-red rockfish, S. rufinanus
    dusky rockfish, S. ciliatus
* * * * *
    freckled rockfish, S. lentiginosus
* * * * *
    half-banded rockfish, S. semicinctus
* * * * *
    pinkrose rockfish, S. simulator
    pygmy rockfish, S. wilsoni
* * * * *
    swordspine rockfish, S. ensifer
* * * * *
    3. In Sec.  660.370, paragraphs (e) through (h) are added to read 
as follows:


Sec.  660.370  Overfished species rebuilding plans.

* * * * *
    (e) Bocaccio. The target date for rebuilding the southern bocaccio 
stock to BMSY is 2023. The harvest control rule to be used 
to rebuild the southern bocaccio stock is an annual harvest rate of 
F=0.0498.
    (f) Cowcod. The target year for rebuilding the cowcod stock to 
BMSY is 2090. The harvest control rule to be used to rebuild 
the cowcod stock is an annual harvest rate of F=0.009.
    (g) Widow rockfish. The target year for rebuilding the widow 
rockfish stock to BMSY is 2038. The harvest control rule to 
be used to rebuild the widow rockfish stock is an annual harvest rate 
of F=0.0093.
    (h) Yelloweye rockfish. The target year for rebuilding the 
yelloweye rockfish stock to BMSY is 2058. The harvest control rule to 
be used to rebuild the yelloweye rockfish stock is an annual harvest 
rate of F=0.0153.
[FR Doc. 04-15256 Filed 7-6-04; 8:45 am]
BILLING CODE 3510-22-S