[Federal Register Volume 69, Number 134 (Wednesday, July 14, 2004)]
[Proposed Rules]
[Pages 42128-42131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15974]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[I.D. 070704F]
RIN 0648-AR77


Fisheries of the Exclusive Economic Zone Off Alaska; Revisions to 
the Annual Harvest Specifications Process for the Groundfish Fisheries 
of the Gulf of Alaska and the Bering Sea and Aleutian Islands 
Management Area

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

ACTION: Notice of availability; request for comments.

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SUMMARY: The North Pacific Fishery Management Council (Council) has 
submitted Amendment 48 to the Fishery Management Plan (FMP) for 
Groundfish of the Gulf of Alaska (GOA) and Amendment 48 to the FMP for 
the Groundfish Fishery of the Bering Sea and Aleutian Islands (BSAI) 
(Amendments 48/48). If approved, Amendments 48/48 would revise the 
administrative process used to establish annual harvest specifications 
for the groundfish fisheries of the GOA and the BSAI and would update 
the FMPs by revising the description of the groundfish fisheries and 
participants, revising the name of the BSAI FMP, revising text to 
simplify wording and correct typographical errors, and revising the 
description of the Council's Groundfish Plan Teams' responsibilities. 
This action is necessary to manage fisheries based on the best 
scientific information available, to provide for adequate prior public 
review and comment to the Secretary of Commerce (Secretary) on Council 
recommendations, to provide for additional opportunity for Secretarial 
review, to minimize unnecessary disruption to fisheries and public 
confusion, and to promote administrative efficiency. This action is 
intended to promote the goals and objectives of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), the 
FMPs, and other applicable laws.

DATES: Comments on Amendments 48/48 must be submitted by September 13, 
2004.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Lori Durall. Comments may be submitted by:
    [bul] Mail to P.O. Box 21668, Juneau, AK 99802;
    [bul] Hand Delivery to the Federal Building, 709 West 9th Street, 
Room 420A, Juneau, AK;
    [bul] E-mail to [email protected] and include in the subject line of 
the e-mail comments the document identifier: 48-48 NOA. E-mail 
comments, with or without attachments, are limited to 5 megabytes;
    [bul] FAX to 907-586-7557; or
    [bul] Webform at the Federal eRulemaking Portal: 
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for 
Amendments 48/48 and the amendments may be obtained from the same 
mailing address above or from the

[[Page 42129]]

NMFS Alaska Region website at www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Act requires that each 
Regional Fishery Management Council submit any FMP amendment it 
prepares to NMFS for review and approval, disapproval, or partial 
approval. The Magnuson-Stevens Act also requires that NMFS, upon 
receiving an FMP amendment, immediately publish a notice in the Federal 
Register that the amendment is available for public review and comment.

Harvest Specifications Process Revision

    Amendments 48/48 were unanimously recommended by the Council in 
October 2003. If approved by NMFS, these amendments would revise the 
administrative process used to establish annual harvest specifications 
for the groundfish fisheries of the BSAI and GOA. Harvest 
specifications establish specific limits on the commercial harvest of 
groundfish and are used to manage the groundfish fisheries. Harvest 
specifications include total allowable catch (TAC), acceptable 
biological catch (ABC), overfishing levels, and prohibited species 
catch (PSC) amounts, and apportionments thereof, which have been 
recommended by the Council. Currently, the regulations provide for 
annual harvest specifications that are effective January 1 through 
December 31. The goals in revising the harvest specifications process 
are to: (1) manage fisheries based on the best scientific information 
available, (2) provide for adequate prior public review and comment to 
the Secretary on Council recommendations, (3) provide for additional 
opportunity for Secretarial review, (4) minimize unnecessary disruption 
to fisheries and public confusion, and (5) promote administrative 
efficiency.
    The current harvest specifications process requires publication of 
proposed, interim, and final rulemaking. Each October, the Council 
recommends proposed harvest specifications to NMFS which are reviewed 
and published in the Federal Register for public comment in December. 
In November, new biological information regarding the groundfish target 
species becomes available and is used to develop the Council's final 
harvest specifications recommendations for the fishing year starting in 
January. The Council makes its final harvest specifications 
recommendations to NMFS in December. NMFS reviews the Council's 
recommended final harvest specifications and publishes the final 
specifications in the Federal Register in February or March of the 
following year.
    Starting in January of the new fishing year, groundfish fisheries 
are managed using interim harvest specifications, pending publication 
of the final harvest specifications. These interim harvest 
specifications remain in place until superseded by final harvest 
specifications in February or March each year. The interim harvest 
specifications are required by Sec.  679.20(c)(2) to be 25 percent or 
the first seasonal apportionment of the proposed TAC amounts for most 
groundfish target species and 25 percent of the proposed PSC amounts.
    A number of statutory requirements must be met by NMFS to implement 
annual harvest specifications. Section 553(c) of the Administrative 
Procedure Act (APA) requires prior public review and comment on a 
proposed rule, including review and comment on the information used as 
the basis for the proposed rule, unless the prior opportunity for 
public review is waived pursuant to section 553(b)(3)(B) of the APA. 
National standard 2 in section 301(a)(2) of the Magnuson-Stevens Act 
requires the management of the groundfish fisheries to be based on the 
best scientific information available. Each year in October, proposed 
harvest specifications for the following year are developed based on 
either TAC amounts used in the current year for some species or on 
projections from the Stock Assessment and Fishery Evaluation (SAFE) 
reports written the previous year. The SAFE reports written in the 
previous year often are the best scientific information available in 
October for supporting the harvest specifications for the following 
year. The new SAFE reports completed in November are used by the 
Council to recommend final harvest specifications in mid-December, 
usually after publication in the Federal Register of the proposed 
harvest specifications.
    The proposed and final specifications process normally requires 6 
months to complete, yet only 2 weeks exist between the time the new 
final SAFE reports are available (mid-December) and the start of the 
fishing year on January 1. The Council's Groundfish Plan Teams develop 
the SAFE reports in November for the following fishing year based on 
the summer survey data and new analysis. These November SAFE reports 
are reviewed and approved by the Council in December and used as the 
scientific basis for its recommended harvest specifications. Because of 
this time constraint, the proposed harvest specifications are completed 
before the new information supporting the final harvest specifications 
is available. The proposed harvest specifications and supporting 
information available for public review and comment can differ from the 
final harvest specifications and their supporting information.
    For some species, the harvest specifications change little among 
years, such as TAC amounts for certain long-lived target groundfish 
species in the GOA. For other species, harvest specifications can 
change greatly between the proposed and final harvest specifications 
for various reasons. In some cases, adjustments are made based on the 
new information developed in the November SAFE reports. In the BSAI, 
the need to maximize the harvest of a particular groundfish species can 
cause changes between proposed and final TACs for a number of 
groundfish species to maintain the overall harvest at or below the 2 
million optimal yield specified at Sec.  679.20(a)(1)(i). Because the 
proposed harvest specifications and supporting information can differ 
from the final harvest specifications and information on which they are 
based, the current specifications process raises concerns that it may 
not provide adequate opportunity for prior public review and comment on 
the annual harvest specifications or on the supporting information used 
for the annual harvest specifications.
    The use of interim specifications in the current specifications 
process also is problematic. Prior public review and comment on the 
interim specifications has been routinely waived for ``good cause'' 
pursuant to section 553(b)(B) of the APA. However, this practice raises 
serious questions of compliance with the APA's notice and comment 
requirements. See Natural Resources Defense Council v. Evans, 316 F.3d 
904 (9th Cir. 2003). In addition, the interim harvest specifications 
also may provide inadequate harvest and PSC amounts for those fisheries 
that are prosecuted in the early part of the year (i.e., rock sole).
    Amendments 48/48 would provide a process that allows for adequate 
prior public review and comment on the harvest specifications and 
supporting information and would allow the groundfish fisheries to be 
managed based on the best available scientific information. Each year 
in October, the Council would recommend to NMFS proposed harvest 
specifications that would be effective for up to 2 years. The rationale 
for harvest specifications that would be effective for up to 2 years is 
explained later in this document.
    In consideration of the current stock assessment survey schedules, 
regulatory

[[Page 42130]]

procedures, and quality of stock assessment information for the BSAI 
and GOA target species, the proposed harvest specifications process 
would authorize specifications that would be effective for up to 24 
months. NMFS would review the recommendations and publish proposed 
harvest specifications in November or early December, including 
detailed descriptions of what the final harvest specifications are 
likely to be and the new information anticipated to support them. In 
November, the new SAFE reports would be forwarded to the Council by the 
Council's Groundfish Plan Teams. The Council would consider the new 
SAFE reports, public comments on the proposed harvest specifications, 
and public testimony and then develop recommendations for the final 
harvest specifications in December. NMFS would review those 
recommendations and public comment on the proposed harvest 
specifications, and specifically determine if the final harvest 
specifications are a logical outgrowth of the proposed harvest 
specifications. If the final harvest specifications recommendations are 
consistent with applicable law and are a logical outgrowth of the 
proposed harvest specifications, the final harvest specifications may 
be published without additional public review and comment.
    If the final harvest specifications recommendations are not a 
logical outgrowth of the proposed harvest specifications, an additional 
publication of proposed harvest specifications may be needed to provide 
an additional opportunity for prior public review and comment under the 
APA. In May or June of the following year, the final harvest 
specifications would be published based on the additional proposed 
harvest specifications and after consideration of public comment. 
Alternatively, depending upon the circumstances, NMFS may find ``good 
cause'' to waive the additional publication of proposed harvest 
specifications for prior public review and comment. In this case, the 
final harvest specifications likely would become effective in March.
    To provide opportunity for an additional public comment period 
after the Council's final harvest specifications recommendation in 
December, the groundfish fisheries in the new fishing year would be 
managed on the specifications that had been published previously. These 
harvest specifications would be superseded by the new harvest 
specifications. This proposed specifications process would eliminate 
the need for the interim harvest specifications. Having harvest 
specifications effective into the second fishing year would allow time 
for NMFS to complete an additional public review and comment period, if 
needed, while preventing disruption of the fisheries.
    To provide consistency between the groundfish FMPs for the harvest 
specifications process and to provide flexibility during the harvest 
specifications process, Amendments 48/48 would allow specifications to 
be effective for up to 2 fishing years. The stock assessment models 
used for determining the harvest specifications would use 2-year 
projections for biomass and acceptable biological catch. The frequency 
of fishery resource surveys also affects whether specifications should 
be done on a more or less frequent basis. Allowing specifications to be 
effective for up to 2 years would fit well with the frequency of stock 
projections that must be used for the harvest specifications, and would 
provide the Council and NMFS the flexibility to adjust the 
specifications time periods in response to potential changes in the 
frequency of stock assessment surveys or other stock assessment data or 
administrative issues.
    The Council recommended that harvest specifications for the hook-
and-line gear and pot gear sablefish individual fishing quota (IFQ) 
fisheries be limited to the succeeding fishing year to ensure those 
fisheries are conducted concurrent with the halibut IFQ fishery. Having 
the sablefish IFQ fisheries concurrent with the halibut IFQ fishery 
would reduce the potential for discards of halibut and sablefish in 
these fisheries. The sablefish IFQ fisheries would remain closed at the 
beginning of each fishing year, until the final harvest specifications 
for the sablefish IFQ fisheries are in effect. The trawl sablefish 
fishery would be managed using harvest specifications for up to 2 years 
with the remaining target species in the BSAI and with GOA pollock, 
Pacific cod, and the ``other species'' complex.

Housekeeping Revisions to the FMPs

    Amendment 48 to the BSAI FMP would revise the title of the FMP. The 
GOA FMP title is a more concise description of the document compared to 
the title used for the BSAI FMP. Definitions at 50 CFR 679.2 describe 
the BSAI as the ``Bering Sea and Aleutian Islands management area.'' 
Consistency between the names of the groundfish FMPs and with the 
groundfish fishery regulations would reduce confusion for users of the 
documents. The BSAI FMP title would be revised to ``The Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area.'' Catch histories and the socioeconomic and community 
descriptions also would be updated with more recent information. 
References supporting the descriptions would be added to the reference 
section of the FMP.
    The GOA and BSAI FMPs contain references related to the management 
of foreign vessels and foreign processors in the groundfish fisheries. 
Foreign participation in the groundfish fisheries in the Exclusive 
Economic Zone off Alaska ended in 1990. Amendments 48/48 would revise 
the text throughout the FMPs to revise references to the management of 
foreign fishing vessels and foreign processors.
    The description in the FMPs of the responsibilities of the 
Council's Groundfish Plan Teams would be revised with this action. The 
current FMPs require the Plan Teams to provide preliminary SAFE reports 
annually for the September Council meeting and to include PSC 
apportionments and allocations recommendations and economic analysis. 
The Council meeting was moved to October, and preliminary SAFEs are no 
longer developed by the Plan Teams. No information is available to the 
Plan Teams to allow recommendations of PSC apportionments and 
allocations. This information is usually available at the October and 
December Council meetings. No economists are on the Plan Teams, so an 
economic analysis cannot be produced by the Plan Teams for the October 
Council meeting. The amendments would revise the FMPs to limit the Plan 
Teams' responsibilities for the annual October Council meeting to 
providing the most recent information regarding proposed ABC amounts 
and overfishing levels to the Council. The amendments also would revise 
the FMP so that the Council may request the Plan Teams to recommend PSC 
allocations and apportionments among target fisheries and gear types 
and an economic analysis on the affects of such allocations. This 
revision would provide flexibility in the future, if the Plan Teams 
were to include an economist.
    The information regarding skates in the GOA FMP would be updated 
with this action. In 2003, a directed fishery for skates developed in 
the GOA, targeting big and longnose skate species. The current FMP 
language does not list big and longnose skate species in the 
description of skates, and describes the harvest of skates as bycatch 
only. This action would update the fishery information regarding skates 
to identify species taken and the methods of

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harvest of skates. Amendment 63 to the GOA FMP, approved by the 
Secretary on February 27, 2004, moved skates from the ``other species'' 
category to the target species category. Amendment 63 allows for the 
management of the skate directed fishery, and the Amendment 48 revision 
would provide a more accurate description of the skate fishery. 
Additional information on Amendment 63 is in the preamble to the 
proposed rule for Amendment 63 published in the Federal Register on 
January 6, 2004 (69 FR 614).
    Amendments 48/48 also would revise the text in the GOA and BSAI 
FMPs to correct typographical errors and to clarify wording.
    Public comments are being solicited on proposed Amendments 48/48 
through the end of the comment period (see DATES). A proposed rule that 
would implement the amendments will be published in the Federal 
Register for public comment at a later date. Public comments on the 
proposed rule must be received by the end of the comment period on the 
amendments in order to be considered in the approval/disapproval 
decision on the amendments. All comments received by the end of the 
comment period on the amendments, whether specifically directed to the 
amendments or to the proposed rule, will be considered in the approval/
disapproval decision. Comments received after that date will not be 
considered in the approval/disapproval decision on the amendments. To 
be considered, comments must be received--not just postmarked or 
otherwise transmitted--by close of business on the last day of the 
comment period.

    Dated: July 8, 2004.
Alan D. Risenhoover,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 04-15974 Filed 7-13-04; 8:45 am]
BILLING CODE 3510-22-S