[Federal Register Volume 71, Number 218 (Monday, November 13, 2006)]
[Rules and Regulations]
[Pages 66122-66141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19106]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 060609159-6272-02; I.D. 060606A]
RIN 0648-AU12


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Amendment 18

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 18 to the 
Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 18 
responds to a court order by setting the Pacific Fishery Management 
Council's (Council's) bycatch minimization policies and requirements 
into the FMP.

DATES: Effective December 13, 2006.

ADDRESSES: Amendment 18 is available on the Council's Web site at: 
http://www.pcouncil.org/groundfish/gffmp.html.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier (Northwest Region, 
NMFS), phone: 206-526-6140; fax: 206-526-6736; and 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 Web site at: http://www.gpoaccess.gov/fr/index.html. The FEIS on bycatch mitigation is 
available on the NMFS Northwest Region Web site at: http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/NEPA-Documents/Programmatic-EIS.cfm and at the Council's Web site at http://www.pcouncil.org.

Background

    Amendment 18 revised the FMP to set the Council's bycatch 
minimization polices and requirements into the FMP. Amendment 18 
responds to court orders in Pacific Marine Conservation Council v. 
Evans, 200 F.Supp.2d 1194 (N.D. Calif. 2002) [hereinafter PMCC v. 
Evans]. This final rule implements the following actions: require that 
groundfish fishery management measures take into account the co-
occurrence ratios of overfished species with more abundant target 
stocks; require vessels that participate in the open access groundfish 
fisheries to carry observers if directed by NMFS; authorize the use of 
depth-based closed areas as a routine management measure for protecting 
and rebuilding overfished stocks, preventing the overfishing of any 
groundfish species, minimizing the incidental harvest of any protected 
or prohibited non-groundfish species, controlling effort to extend the 
fishing season, minimizing the disruption of traditional commercial 
fishing and marketing patterns, spreading the available recreational 
catch over a large number of anglers, discouraging target fishing while 
allowing small incidental catches to be landed, and allowing small 
fisheries to operate outside the normal season; update the boundary 
definitions of the Klamath and Columbia River Salmon Conservation Zones 
and Eureka nearshore area to use latitude and longitude coordinates in 
a style similar to that of the Groundfish Conservation Areas (GCAs); 
and, allow species to be identified for sorting prior to landing if 
there is a scientific need for those species to be separately 
identified upon landing.
    A Notice of Availability for Amendment 18 was published on June 9, 
2006 (71 FR 33432). NMFS requested comments on the amendment under the 
Magnuson-Stevens Act FMP amendment review provisions for a 60-day 
comment period, ending August 8, 2006. A proposed rule was published on 
June 27, 2006 (71 FR 36506), requesting public comment through August 
8, 2006. During the Amendment 18 and proposed rule comment period, NMFS 
received two 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 18 also appears in 
the bycatch mitigation FEIS, referenced above under ``Electronic 
Access.'' After consideration of the public comments received on the 
amendment, NMFS approved Amendment 18 on September 6, 2006.

[[Page 66123]]

Comments and Responses

    NMFS received two letters of comment on the proposed rule to 
implement Amendment 18: one letter was jointly sent by four 
environmental advocacy organizations, and one letter was sent by the 
Washington Department of Fish and Wildlife (WDFW). These comments are 
addressed here:
    Comment 1: WDFW believes that groundfish species sorting 
requirements at Sec.  660.306 need to be expanded so that managers may 
better quantify total catch for some species that are part of the FMP, 
but which are not required to be sorted because they lack species-
specific trip limits, size limits, harvest guidelines, quotas, or 
optimum yields (OYs). Skates (Raja spp.) serve as an example of species 
for which broadening sorting requirements could greatly improve total 
catch accounting. There are several West Coast skate species and they 
are often landed with their wings removed, making these animals 
particularly difficult to identify by species when they are landed 
unsorted. Allowing NMFS to designate, upon recommendation by the 
Council, certain species as required to be sorted under a scientific 
sorting designation would allow science and management agencies to 
better assess populations of some of the less commonly caught species 
within the groundfish complex. Therefore, WDFW suggests that Federal 
regulations at Sec.  660.306(a)(7) and Sec.  660.370(h)(6) be revised 
to require that, in addition to other sorting requirements, vessels 
sort species with ``scientific sorting designation.''
    Response: NMFS agrees that WDFW's suggestion will be beneficial to 
improving total catch information on less commonly caught species. The 
suggested revision to Federal regulations supports language added to 
the FMP via Amendment 18, found at Section 6.4.1.2, on Commercial 
Fisheries total catch reporting methodology, ``Catch weight by sorted 
species category, area of catch, vessel identification number, and 
other data elements are required on fish tickets. Landings are also 
sampled in port by State personnel, who collect species composition 
data, otoliths for ageing, lengths, and other biological data. * * * 
All landings of groundfish stocks of concern (overfished stocks and 
stocks below BMSY) and target stocks and stock complexes in 
West Coast fisheries are tracked in Quota Species Monitoring reports of 
landed catch.'' NMFS anticipates that WDFW's suggestion will allow the 
Council to target particular stocks for improved species-specific data 
gathering, and to potentially address a management challenge identified 
under Section 4.3.3 of the FMP, the inability to conduct species-
specific stock assessments on fish stocks without species-specific 
landings data. Therefore, this final rule includes WDFW's suggested 
modification to Federal framework regulations at Sec.  660.306(a)(7) 
and Sec.  660.370(h)(6). No species would be added through this action 
to the lists at Sec.  660.370(h)(6)(i)-(ii) that designate the species 
and species groups currently required to be sorted. Species required to 
be sorted via a scientific sorting designation would be considered 
through the Council process and through a future Federal rulemaking.
    Comment 2: The commenting organizations (Natural Resources Defense 
Council, Pacific Marine Conservation Council, Oceana, and The Ocean 
Conservancy, hereinafter ``The Four Organizations'') generally agree 
with the Council's three-part bycatch minimization strategy of: 
Improving data collection and analysis; improving modeling to better 
correlate bycatch rates with time, place, and gear type; and developing 
management measures that minimize bycatch and bycatch mortality. 
However, for reasons explained in subsequent comments, below, they do 
not believe that Amendment 18 satisfies the requirements of the 
Magnuson-Stevens Act and other applicable laws. Pursuant to 16 U.S.C. 
1854(a)(3), they call on NMFS to disapprove portions of Amendment 18 on 
the following grounds: (1) The failure to adopt all practicable bycatch 
minimization measures; (2) the failure to articulate why certain 
measures adopted as part of the Council's preferred alternative have 
been deemed impracticable and thus dismissed from implementation at 
this time; (3) the failure to provide objectives and targets for 
implementing currently impracticable measures, or to include 
performance standards and measurable criteria for determining progress 
towards reducing bycatch; (4) an inadequate standardized total catch 
reporting (and observer) program; and (5) other reasons explained 
below.
    Response: The Magnuson-Stevens Act at 16 U.S.C. 1854(a)(3) requires 
that ``The Secretary [of Commerce] shall approve, disapprove, or 
partially approve a plan or amendment within 30 days of the end of the 
comment period [on the FMP or FMP amendment] by written notice to the 
Council.'' NMFS sent written notice to the Council on September 6, 2006 
that the agency had fully approved Amendment 18 to the FMP, prior to 
the Magnuson-Stevens Act's 30-day deadline from the end of the comment 
period. NMFS approved Amendment 18, after taking into account all 
comments received, because it revises the FMP to meet the requirements 
of the Magnuson-Stevens Act to minimize bycatch to the extent 
practicable, and to provide a standardized bycatch reporting 
methodology. As discussed in the proposed rule for this action, 
Amendment 18 significantly revised Chapter 6 of the FMP, ``Management 
Measures'' to address the bycatch monitoring and minimization 
requirements of the Magnuson-Stevens Act. With Amendment 18's 
revisions, the FMP sets a high priority on bycatch minimization and 
requires the use of practicable bycatch minimization measures, 
including: A total catch reporting and compliance program (Section 
6.4); bycatch mitigation measures to be implemented if practicable, 
such as full retention programs, sector-specific and vessel-specific 
total catch limit programs, and catch allocation to or gear flexibility 
for gear types with lower bycatch rates (Section 6.5); gear definitions 
and restrictions (Section 6.6); catch restrictions such as quotas, size 
limits, trip limits, and bag limits (Section 6.7); time/area closures 
for bycatch mitigation and habitat protection (Section 6.8); capacity 
control measures such as permits and licenses (Section 6.9); and 
enforcement and safety standards (Section 6.10). The FMP at 6.5.1 
states that ``The Council has all of the management measures detailed 
in Sections 6.5-6.10 at its disposal to manage directed catch and 
reduce bycatch of groundfish species in the groundfish fisheries. 
Because of the interaction among the various species and the regular 
incorporation of new information into the management system, the 
details of the specific measures will change over the years, or within 
years, based on the best available science. Management measures will be 
designed taking into account the co-occurrence ratios of target stocks 
with overfished stocks. To protect overfished species and minimize 
bycatch through reducing incidental catch of those species, the Council 
will particularly use, but is not limited to: Catch restrictions 
detailed in Section 6.7 to constrain the catch of more abundant stocks 
that commingle with overfished species, in times and areas where higher 
abundance of overfished species are expected to occur; time/area 
closures detailed in Section 6.8 and designed to prevent vessels from 
operating during times when or in areas where overfished species are 
most vulnerable to a

[[Page 66124]]

particular gear type or fishery; and gear restrictions described in 
Section 6.6, where that gear restriction has been shown to be 
practicable in reducing overfished species incidental catch rates.'' 
The groundfish FMP addresses over 90 species; its management area spans 
the length of the U.S. West Coast; and its fisheries affecting 
groundfish range from treaty tribal ceremonial fisheries, to commercial 
fisheries with international markets varying from elite delicacies to 
mass-market surimi, to family weekend sport fishing trips. The diverse 
array of management measures required in the FMP for bycatch mitigation 
reflects the Council's philosophy that there is not one single solution 
for minimizing bycatch in such a diverse set of fisheries, and that 
addressing bycatch is an ongoing process.
    NMFS notes that although The Four Organizations requested partial 
disapproval of Amendment 18, their comments did not specify which 
sections of Amendment 18 they wished NMFS to disapprove. The Four 
Organizations also state that ``NMFS must reject the portions of the 
proposed rule implementing Amendment 18 that fail to comply with the 
bycatch requirements of the Magnuson-Stevens Act, and the reasoned 
decision-making standard of the Administrative Procedures Act (APA.)'' 
The Four Organizations elaborated on each of the five points on which 
they based their request that NMFS disapprove portions of Amendment 18. 
NMFS has approved all of Amendment 18 and its implementing regulations 
because they are consistent with the Magnuson-Stevens Act and other 
applicable laws. NMFS responds below to both the general and detailed 
comments of The Four Organizations, which they had summarized as stated 
in Comment 2 as the introduction to their letter.
    Comment 3: The Four Organizations believe that Amendment 18 fails 
to adopt all practicable management measures. The Magnuson-Stevens Act 
requires that NMFS implement all ``practicable'' bycatch minimization 
measures (16 U.S.C. 1853(a)(11).) Although NMFS has some discretion in 
determining which measures are practicable, mere ``[i]nconvenience is 
not an excuse'' for finding a particular measure impracticable (63 FR 
24212 at 24224, May 1, 1998--Preamble to National Standard Guidelines.) 
The only bycatch minimization measures required by Amendment 18--(1) 
Gear restrictions found in FMP Section 6.6; (2) catch restrictions 
found in FMP Section 6.7; and (3) time-area closures contained in FMP 
Section 6.8--have already been part of the status quo management of the 
fishery for several years. All other measures remain discretionary or 
are deemed not yet practicable. Thus, the only measures that the 
Council considers to be practicable in 2006 are those that have 
comprised the status quo since prior to the decision in PMCC v. Evans.
    Response: As discussed in the preamble to the proposed rule for 
this action, PMCC v. Evans addressed Amendment 13, which NMFS approved 
on December 31, 2001. The Four Organizations are incorrect in asserting 
that the Council only considers measures implemented in 2001 and 
earlier to be practicable in 2006. NMFS provided a list of bycatch 
management measures required by the FMP, via Amendment 18, in the 
response to Comment 2, above. Since 2001, and in response to the 
Court's decision in 2002 on Amendment 13, NMFS and the Council have 
evaluated and implemented numerous new bycatch minimization measures 
through the FMP's framework authority. The following list of measures 
implemented since 2001 does not include either the Amendment 18 
regulations or those additional bycatch minimization measures that NMFS 
has proposed to be implemented for the 2007-2008 groundfish fisheries 
via the groundfish specifications and management measures process (71 
FR 57764, September 29, 2006):

Standardized Total Catch Reporting Methodologies

     Requirement for participants in the West Coast groundfish 
fisheries to carry one or more Federal observers onboard their vessels. 
Observer program regulations implemented May 24, 2001 (66 FR 20609, 
April 24, 2001).
     NMFS's West Coast Groundfish Observer Program (WCGOP) 
begins placing observers on vessels that participate in the groundfish 
fisheries in Federal waters (August 2001).
     NMFS first uses a bycatch model, populated by data from 
historical experiments, to set groundfish trip limits that vary by time 
of year and depth, in accordance with co-occurrence ratios in the 
bycatch model (67 FR 1555, January 11, 2002).
     NMFS completes analysis of first year's worth of data from 
WCGOP in January 2003 (http://www.nwfsc.noaa.gov/research/divisions/fram/observer/datareport/trawl/datareportjan2003.cfm)
     NMFS approves Amendment 16-1 to the FMP on November 13, 
2003. In addition to setting a framework for incorporating overfished 
species rebuilding plans into the FMP, Amendment 16-1 revises the FMP 
to make a groundfish observer program a mandatory tool in fishery 
management (69 FR 8861, February 26, 2004).
     NMFS reconstructs groundfish fishery bycatch model and 
populates it with WCGOP data to model species co-occurrence ratios, 
plus trip limit and depth-based management regimes for the 2004 fishing 
year, effective January 1, 2004 (69 FR 1380, January 8, 2004).
     Requirement for at-sea processors and catcher-processors 
to carry one or more Federal observers onboard their vessels 
implemented July 7, 2004. These vessels had previously been carrying 
observers voluntarily for their participation in the at-sea whiting 
fishery, but NMFS viewed mandatory coverage as needed in order to 
ensure observer data integrity (69 FR 31751, June 7, 2004).

Fleet-Size/Effort Reduction (With Direct or Indirect Bycatch 
Minimization Effects)

     Restriction on the frequency of limited entry permit 
transfers in order to restrict the number of vessels that may use a 
permit within a calendar year implemented August 1, 2001 (66 FR 40918, 
August 6, 2001).
     Amendment 14 to the FMP, program to consolidate limited 
entry sablefish fleet by allowing vessels to stack up to three permits 
on the same vessel, implemented August 2, 2001 (66 FR 41152, August 7, 
2001). Between 2001 and the present, fleet size reduced by 
approximately 50 percent.
     Limited entry trawl permit and vessel buyback program; 
fleet size reduced by 34 percent between July and December 2003 (68 FR 
42613, July 18, 2003).
     The Council announces its intent to consider implementing 
an individual quota program for the limited entry trawl fishery, 
setting a control date for considerations of qualifying catch (69 FR 
1563, January 9, 2004).
     The Council announces its intent to consider a license 
limitation program for the open access fishery, setting a control date 
for considerations of qualifying catch (Federal Register publication 
anticipated by November 15, 2006).

Marine Areas Closed to Fishing

     Eastern and Western Cowcod Conservation Areas implemented 
in Southern California Bight, January 5, 2001 (66 FR 2338, January 11, 
2001).
     Darkblotched Rockfish Conservation Area (RCA) implemented 
for trawlers operating north of Cape Mendocino, CA for the months of

[[Page 66125]]

September-December 2002 (67 FR 57973, September 13, 2002).
     Darkblotched RCA replaced with coastwide (U.S. border with 
Canada to U.S. border with Mexico) RCAs for commercial fisheries, 
primarily closing fishing on the continental shelf (68 FR 908, January 
7, 2003, and 68 FR 11182, March 7, 2003).
     Yelloweye Rockfish Conservation Area implemented off 
Washington coast (68 FR 908, January 7, 2003, and 68 FR 11182, March 7, 
2003).
     Vessel monitoring system requirements for limited entry 
fleet implemented January 1, 2004 (68 FR 62374, November 4, 2003).
     Recreational fisheries first subject to RCAs and depth-
based management (69 FR 1322, January 8, 2004, and 69 FR 11064, March 
9, 2004).
     NMFS establishes for the 2005 Pacific whiting fishery, via 
emergency rule, the Ocean Salmon Conservation Zone, closing the whiting 
fishery shoreward of the 100-fm depth contour (70 FR 51682, August 31, 
2005).
     NMFS implements 51 new closed areas within the West Coast 
Exclusive Economic Zone for the protection of groundfish Essential Fish 
Habitat (71 FR 27408, May 11, 2006.)

Gear Restrictions or Incentives

     Differential trip limits are introduced for vessels using 
small footrope gear, intended to discourage fishing in areas where 
nearshore and shelf rockfish occur, January 5, 2001 (66 FR 2338, 
January 11, 2001.)
     Selective flatfish trawl gear required for trawl vessels 
operating shoreward of the RCAs and north of Cape Mendocino, CA, 
effective January 1, 2005 (69 FR 77012, December 23, 2004.)
    Comment 4: The Four Organizations believe that Amendment 18 fails 
to adopt all practicable management measures. According to the bycatch 
mitigation EIS, the preferred alternative that Amendment 18 purports to 
implement would: ``primarily use sector allocations and reward those 
sectors with the best bycatch minimization performance. It would 
encourage individual vessels to carry observers at the vessel's expense 
and provide larger trip limits for those vessels, in combination with 
catch limits for overfished species. Those vessels that participate 
would be exempted from the sectors and not be closed if a sector were 
closed.''
    Response: The Four Organizations have quoted a discussion of a 
portion of the preferred alternative from the EIS's Executive Summary, 
not the preferred alternative itself, which the Council developed to 
incorporate elements from several of the EIS's alternatives. NMFS 
addresses sector bycatch caps in its responses to Comments 5 and 6. 
Here, NMFS provides the text of the preferred alternative, so that 
readers may be clear as to the precise wording:
    ``Create a new Alternative 7 that includes elements of Alternatives 
1, 4, and 5. Elements from Alternative 1 that would be included in 
Alternative 7 would be all current programs for bycatch minimization 
and management, including but not limited to: setting optimum yield 
specifications, gear restrictions, area closures, variable trip and bag 
limits, season closures, establishing landings limits for target 
species based on co-occurrence ratios with overfished stocks, etc. The 
FMP would be amended to more fully describe our standardized reporting 
methodology program and to require the use of bycatch management 
measures indicated under Alternative 1 for the protection of overfished 
and depleted groundfish stocks and to reduce bycatch and bycatch 
mortality to the extent practicable. These would be used until replaced 
by better tools as they are developed.
    Elements from Alternative 4 that would be included in Alternative 7 
would be the development and adoption of sector-specific caps for 
overfished and depleted groundfish species where practicable. We 
anticipate phasing in sector bycatch caps that would include: 
Monitoring standards, full retention programs, and individual vessel 
incentives for exemption from caps.
    Elements of Alternative 5 that would be included in Alternative 7 
would be the support of future use of Individual Fishing Quota programs 
for appropriate sectors of the fishery. The FMP would incorporate the 
Strategic Plan's goal of reducing overcapacity in all commercial 
fisheries. Additionally, baseline accounting of bycatch by sector shall 
be established for the purpose of establishing future bycatch program 
goals.''
    Comment 5: The Four Organizations believe that Amendment 18 fails 
to adopt all practicable management measures. They believe that NMFS 
must implement hard bycatch caps for all sectors targeting Pacific 
groundfish. Continued delay in setting hard caps and other important 
bycatch reduction measures is irresponsible, because it promotes 
overfishing and fails to promote a more efficient and thus more 
profitable fishery. Hard caps, along with rapid inseason management 
responses and robust monitoring, are necessary to prevent exceeding the 
OY of Pacific groundfish. Absent these measures, they believe that the 
fisheries risk exceeding the Acceptable Biological Catch (ABC) and/or 
OY on a regular basis, as they assert occurred with lingcod, Dover 
sole, canary rockfish, bocaccio, shortspine thornyheads, and black 
rockfish in 2003 and with darkblotched rockfish and canary rockfish in 
2004. Moreover, from an ecosystem-based perspective, The Four 
Organizations believe that NMFS must improve the counting and control 
of bycatch of all marine life since fishing affects not only targeted 
and overfished species, but also marine ecosystems more broadly.
    Response: NMFS has determined, as explained below, that ``hard'' 
bycatch caps are not practicable at this time. The Four Organizations 
are incorrect in asserting that hard bycatch caps are necessary to 
prevent overfishing. While Amendment 18 endorses the use of sector 
bycatch caps, where practicable, hard bycatch caps are not a 
prerequisite for preventing overfishing, nor are bycatch caps the sole 
management measure available to prevent overfishing.
    Amendment 18 discusses sector-specific total catch limit programs 
in Section 6.5.3.2 as follows: ``A sector-specific total catch limit 
program is one in which a fishery sector would have access to a pre-
determined (probably through the harvest specifications and management 
measure process, Section 6.2, C) amount of a groundfish FMU species, 
stock, or stock complex that would be allowed to be caught by vessels 
in that sector. Once a total catch limit is attained, all vessels in 
the sector would have to cease fishing until the end of the limit 
period, unless the total catch limit is increased by the transfer of an 
additional limit amount. A sector-specific total catch limit program 
could be based on either: (1) Monitoring of landed catch and inseason 
modeling of total catch based on past landed catch and bycatch rates, 
or (2) monitoring of total catch and real-time delivery of total catch 
data. If a sector-specific total catch limit program is based on 
inseason monitoring of landed catch, a sector would close when inseason 
total catch modeling estimated that the sector had achieved an FMU 
[Fishery Management Unit] species, stock, or stock complex total catch 
limit. If a sector-specific total catch limit program is based on 
inseason monitoring of total catch, a sector would close when inseason 
total catch monitoring estimated that the sector had achieved an FMU 
species, stock, or stock complex total catch limit.''
    Currently, before the start of a two-year management cycle, the 
Council and NMFS use projection models incorporating past WCGOP data to 
set

[[Page 66126]]

fishery management measures so that they best reflect the known catch 
ratios between target and rebuilding species. During each two-year 
management cycle, new WCGOP data is incorporated into the model and 
total catch is estimated so that management measures may be revised 
inseason to keep the fishery within OYs. Following each fishing year, 
WCGOP data for that year are used for post-season total catch 
evaluations, and are then used in setting or revising management 
measures for subsequent fishing years. Taking these three evaluation 
and implementation steps--pre-season, inseason, and post-season--
ensures that NMFS and the Council are using the best available 
scientific information to minimize bycatch to keep total catch within 
OYs, and to ensure that management is constantly improved through the 
use of updated information. The OYs of non-target species serve as 
total catch limits for those species, although most species are not 
allocated by sector. If a species is not allocated by sector, a higher-
than-predicted catch in one sector may be accounted for by constraining 
catch in another sector with lower-than-predicted catch for that 
species.
    For example, in summer 2006, the Council used an inseason bycatch 
limit to ensure that the summer fisheries' incidental catch of canary 
rockfish remained low enough so that autumn and winter fisheries with 
incidental rockfish catch would not have to be closed to keep the catch 
of canary rockfish within its OY, recommending that: ``If the catch of 
canary in the LE bottom trawl sector is projected to reach 7.75 mt of 
the end of either July or August, NMFS will move the shoreward boundary 
of the RCA in to the shore north of 40[deg] 10[min] N. lat. at the end 
of that month. The Groundfish Management Team will reevaluate 
management measures relative to canary rockfish at the Council's 
September meeting.'' That Council recommendation illustrates the type 
of bycatch limit that is both possible and effective in groundfish 
fishery management, a limit that relies on projections from data 
received inseason, rather than on real-time estimates of the exact 
amount of catch being taken at a given time. Because the current 
management system is more flexible than a hard bycatch cap system, it 
allows overages discovered inseason for one portion of the fishery, or 
with research catch, to be accommodated with reductions in available 
bycatch amounts in other portions of the fishery.
    Regarding whether overfishing occurred on darkblotched and canary 
rockfish in 2004, NMFS has recent revised estimates that show 
overfishing did not occur. Under the FMP, ABCs for all species are set 
at the FMSY level or its proxy the level that, for a 
particular year, is intended to produce maximum sustainable yield for 
that species on a continuing basis. OYs for most groundfish species are 
set below their ABCs. Overfishing occurs when the total catch of a 
species exceeds that species' ABC. NMFS completed its post-season 
evaluation of the 2004 fisheries in early 2006. In an analysis by NMFS 
Northwest Fisheries Science Center dated May 18, 2006, NMFS estimated 
that overfishing had occurred on darkblotched rockfish in 2004. 
Subsequently, NMFS determined that some double-counting had occurred in 
the summarization of landed catches in the May 18, 2006, analysis. A 
revised analysis of total fishing mortality, or total catch, was 
published on the Northwest Fisheries Science Center Web site on 
September 29, 2006. [http://www.nwfsc.noaa.gov/research/divisions/fram/observer/datareport/docs/revised_total_fg_catch_ estimation2004.pdf] Based on the September 29, 2006 
analysis, NMFS estimates that no species were subject to overfishing 
during the 2004 fishing year. The total catch of darkblotched rockfish, 
which was previously estimated to have exceeded the 240 mt ABC by 1.6 
mt, is now estimated to have been 9.1 mt below the ABC. The September 
29, 2006, analysis estimates that the 2004 total catch of canary 
rockfish exceeded the 47.3 mt OY by 0.8 mt. This does not represent 
overfishing because the total catch was below the ABC of 243 mt. In no 
other instance did the estimated 2004 total catch of a species exceed 
that species ABC.
    As reported in Table 4-2 in the final EIS for the 2005-2006 
groundfish specifications and management measures, estimated 2003 
lingcod total catch exceeded the lingcod ABC of 841 mt by 525.6 mt. The 
lingcod stock, which had previously been listed as overfished, 
completed its rebuilding ahead of its 2009 anticipated rebuilt date and 
was announced as rebuilt in 2005. The 2003 shortspine thornyhead 
estimated total catch exceeded its ABC of 1,004 mt by 216.2 mt. These 
two species were subject to overfishing, but were protected from 
overfishing in subsequent years both by a more conservative management 
regime and by a more consistent total catch calculation methodology 
between the pre-season period and the inseason management period, as 
described below. Dover sole, canary rockfish and bocaccio estimated 
total catch levels exceeded their OYs: Dover sole estimated total catch 
was 8,342.2 mt, between its 7,440 mt OY and its 8,510 ABC; canary 
rockfish estimated total catch was 46.8 mt, between its 44 mt OY and 
its 272 mt ABC; and bocaccio estimated total catch was 29.1 mt, between 
its 20 mt OY and its 198 mt ABC. Bycatch rate and total catch 
estimation was particularly challenging in 2003, because NMFS had 
modeled bycatch rates prior to the fishing year based on pre-WCGOP 
data, then revised its bycatch rate estimates inseason based on data 
from WCGOP's first year, which became available for management use for 
the first time in January 2003. Post-season total catch estimates also 
used WCGOP data to assess total catch. The number of species with 
catches in excess of their OYs in 2003 is an indicator of the challenge 
of managing a fishery to use best and most recently available science, 
when the new scientific data in question represents a significant shift 
in scientific method. However, when the newly available science 
revealed that the fishery had or was projected to exceed its 2003 OY 
level, NMFS and the Council responded quickly with inseason actions to 
constrain the fisheries. The effects of newly available inseason 
observer data have diminished over time as more years of observer data 
are added to the management process, since those additional years of 
data provide NMFS with a more complete picture of how fishing vessel 
behavior and groundfish stock migrations change during the calendar 
year. The effects of all harvest levels, whether under or over OYs, are 
accounted for in subsequent stock assessments.
    Finally, The Four Organizations state that NMFS must improve the 
counting and control of bycatch of all marine life, because they 
believe that fishing affects not only targeted and overfished species, 
but also marine ecosystems more broadly. NMFS agrees that it is 
important to assess and minimize the bycatch of marine species other 
than those that are either targeted or overfished. Many of the measures 
currently in place reduce bycatch of all species; for example, the gear 
restrictions described in the response to comment 6. See also the 
response to comment 14. Because of the Magnuson-Stevens Act's mandate 
to rebuild overfished species, and because of the unusually long lives 
and low productivity levels of rockfish managed under rebuilding plans, 
NMFS places its highest bycatch minimization priority on constraining 
incidental catch of overfished species. NMFS most recently described 
its approach to overfished species rebuilding in the preamble to

[[Page 66127]]

the proposed rule to implement Amendment 16-4 to the FMP and the 2007-
2008 groundfish specifications and management measures (71 FR 57764, 
September 29, 2006.) A more detailed analysis of this management 
approach is also available in the Final EIS for that action, available 
online from the Council at: http://www.pcouncil.org/nepa/nepatrack.html.
    Comment 6: The Four Organizations believe that the proposed rule 
fails to provide a rational basis for dismissing measures as 
impracticable. Neither the proposed rule nor Amendment 18 explains 
sufficiently why other measures that the Council analyzed but did not 
adopt, such as hard sector caps, are not currently practicable. NMFS 
has dismissed certain measures by simply labeling them impracticable, 
without fully considering the practicability of achieving those 
measures and without explaining why they are impracticable. In 
Amendment 13, NMFS dismissed as ``impracticable without an observer 
program'' two methods of reducing bycatch: (1) ``the use of incentives 
for vessels with lower bycatch rates, such as allowing higher landing 
limits (and thus greater fishing profits) for fishing vessels that fish 
selectively and thus have relatively low discard rates;'' and (2) ``the 
use of discard caps to manage the fishery'' (PMCC v. Evans). The agency 
argued that ``both alternatives are deemed impracticable without a full 
observer program, since both would require individual vessel 
monitoring'' (PMCC v. Evans). The agency never explained why full 
observer coverage was impracticable; it just concluded that it was so.
    Several bycatch minimization programs that were chosen as part of 
the agency's preferred alternative have been dismissed as impracticable 
at the present time, including: full retention programs, sector-
specific total catch limits, vessel-specific total catch limits, and 
providing increased catch allocations to or gear flexibility for gear 
types with lower bycatch rates. NMFS states that the reasons for this 
are that ``[s]ector specific limits are not practicable until the 
shore-based retention and monitoring program is more fully developed'' 
and vessel-based limits ``would be dependent upon a more intense level 
of monitoring than is practicable under the current management regime * 
* *.'' (71 FR 36506 at 36510, June 27, 2006.) This rationale is wholly 
insufficient to satisfy the Administrative Procedures Act's (APA's) 
requirement for reasoned decision-making, just as the court in PMCC v. 
Evans found inadequate NMFS's explanation in Amendment 13 that ``the 
type of observer program that would be needed to implement a vessel 
incentive program is not practicable.'' (66 FR 29729, at 29731 (June 1, 
2001)). In PMCC v. Evans, the Court found that NMFS had engaged in 
``unreasoned decision-making'' because it ``did not fully consider the 
practicability of the more comprehensive observer program necessary to 
administer vessel incentives or discard caps in light of the factors 
set forth in 50 CFR 600.350(d)(3)(i).'' The Council's ``Preliminary 
Discussion Draft Practicability Analysis for Amendment 18'' does not 
suffice. It was not included in the analysis of either the proposed 
rule or Amendment 18 and, even if it had been, the draft is confusing 
and incomplete. For example, the analysis only considers the socio-
economic obstacles or costs of individual fishing quotas, which are but 
one of several measures from the preferred alternative in the PEIS that 
are dismissed as impracticable in the proposed rule. Other measures, 
such as hard sector caps and the use of performance standards, are not 
similarly evaluated.
    Response: PMCC v. Evans addressed Amendment 13, which as mentioned 
above, NMFS approved on December 21, 2001. This final rule implements 
Amendment 18, which NMFS approved on September 6, 2006. The Four 
Organizations have quoted the agency's record for Amendment 13. NMFS 
analyses for Amendment 18 are separate from its analyses for Amendment 
13.
    In its National Standard 9, the Magnuson-Stevens Act requires 
bycatch to be minimized to the extent practicable. The issue of which 
management measures are and are not practicable at this time or into 
the future is central to Amendment 18, its program for bycatch 
minimization into the future, and to Federal regulations as amended 
through this final rule. The bycatch mitigation EIS, completed in 
September 2004, discussed the practicability of each of the 
alternatives when weighed against each other.
    NMFS and the Council dealt further with practicability through the 
development of Amendment 18, which recommends different bycatch 
minimization measures in different fisheries and sectors, as 
practicable. The Council finalized Amendment 18 at its November 2005 
meeting. For that meeting, NMFS provided the Council with a draft 
practicability analysis that evaluated the practicability of Amendment 
18 within a framework of the Federal guidelines on National Standard 9 
at Sec.  660.350(d)(3). Those guidelines provide factors that should be 
considered when determining whether a conservation and management 
measure minimizes bycatch or bycatch mortality to the extent 
practicable. It became clear from Council discussions, however, that 
the Council and the public were more focused on evaluating the 
practicability of particular management tools, such as fleet capacity 
reduction or sector bycatch caps. Therefore, NMFS revised its 
practicability analysis to evaluate major bycatch accounting and 
minimization tools, in order to better inform the agency's decision on 
Amendment 18 under the Magnuson-Stevens Act and for the Record of 
Decision on the EIS. The final practicability analysis is available 
from NMFS's Northwest Region (see ADDRESSES) and the portions of that 
document that addressed vessel incentives, sector bycatch caps, full 
retention programs, and gear restrictions and catch incentives for 
lower bycatch gear are provided here, since The Four Organizations 
explicitly mentioned those four potential management tools. NMFS 
addressed some practicability issues associated with sector bycatch 
caps in its response to Comment 5; that discussion is supplemented 
here.
    The Magnuson-Stevens Act provides for a deliberative fishery 
management council process, followed by a Federal rulemaking process, 
both with multiple opportunities for public review and comment on 
fishery management concepts as they are developed in the Council and on 
the Federal regulations that implement Council recommendations. Other 
laws, such as NEPA and the Regulatory Flexibility Act (RFA,) require 
that NMFS and the Council analyze the potential effects of fishery 
management actions on the physical, biological, and socio-economic 
environment, and particularly on small business entities within the 
socio-economic environment. In completing the analytical documents 
needed to assess the Council's recommendation on a preferred 
alternative for the bycatch mitigation EIS and on Amendment 18 
language, NMFS evaluated the meaning of the requirement to minimize 
bycatch ``to the extent practicable'' in light of the current state of 
the groundfish fishery. The evaluative processes required by the 
Magnuson-Stevens Act, NEPA, RFA, and other applicable law, provide the 
framework for the agency's reasoned decision-making on both the EIS's 
preferred alternative and approval of Amendment 18.
    The Magnuson-Stevens Act does not define what is meant by ``to the 
extent practicable'' when referring to the requirement to minimize 
bycatch. For the purposes of this discussion, NMFS

[[Page 66128]]

defines practicable for bycatch minimization measures to mean a measure 
that is ``reasonable and capable of being done in light of available 
technology and economic considerations.'' In other words, it may be 
possible to imagine a particular management tool, or to have seen it 
used in other fisheries, without that management tool being practicable 
for the West Coast groundfish fishery in particular. This definition is 
consistent with standard dictionaries, and with the intent of Congress, 
as expressed in the Congressional Record on the Sustainable Fisheries 
Act, ``The use of the term `to the extent practicable' was chosen 
deliberately by both the Senate and the House. Both bodies recognize 
that bycatch can occur in any fishery, and that complete avoidance of 
mortality is impossible. Councils should make reasonable efforts in 
their management plans to prevent bycatch and minimize its mortality. 
However, it is not the intent of the Congress that the councils ban a 
type of fishing gear or a type of fishing in order to comply with this 
standard. `Practicable' requires an analysis of the cost of imposing a 
management action; the Congress does not intend that this provision 
will be used to allocate among fishing gear groups, nor to impose costs 
on fishermen and processors that cannot be reasonably met.'' (104 Cong. 
Rec., H11437 (1996).) The agency's definition of the term practicable 
has also been tested in court and affirmed for bycatch minimization and 
essential fish habitat (EFH) protection for Federal fishery management 
off New England (Oceana v. Evans, No. 04-0811 (ESH) (Mar. 9, 2005.)
    The Council addressed the question of practicability when making 
its final decision on Amendment 18. At its November 2005 meeting, the 
Council finalized FMP amendatory language for Amendment 18 and reviewed 
a draft work plan for future bycatch minimization measures intended to 
follow on Amendment 18. Council members particularly addressed sector 
bycatch caps in discussing potential future management measures, saying 
that, collectively, NMFS, the states, and the industry do not have the 
``resources, money, or infrastructure to manage by sector caps.'' 
Council members expressed an interest in looking at sector bycatch caps 
for future management, but viewed them as impracticable to implement 
right now. As explained in the proposed rule for this action, the 
Council wished to build a management infrastructure for implementing 
sector bycatch caps where practicable in the future, but also 
concentrate right now on bycatch minimizing management measures that 
are more practicable in the near term. In particular, the Council cited 
two activities that could be done in the near term to minimize bycatch 
using existing personnel, funds, and management infrastructure: 
requiring permits in the open access fishery and evaluating the process 
by which observer and landings data are collected and analyzed for use 
in the management process. NMFS and the Council have followed up with 
both of these issues and NMFS anticipates shortly publishing an advance 
notice of proposed rulemaking on permitting the open access fishery.
    NMFS has also fully considered the practicability of a more 
comprehensive observer program throughout the process of developing 
Amendment 18 and concurrent regulatory programs. In addition to the 
bycatch mitigation EIS, NMFS has evaluated observer coverage in two 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analyses (EA/RIR/IRFAs) for observer requirements in the 
groundfish fishery: a 2000 EA/RIR/IRFA on ``An Observer Program for 
Catcher Vessels in the Pacific Coast Groundfish Fishery,'' and a 2003 
EA/RIR/IRFA on the ``Implementation of an Observer Program for At-Sea 
Processing Vessels in the Pacific Coast Groundfish Fishery.'' NMFS has 
analyzed additional monitoring mechanisms in two EA/RIR/IRFAs on vessel 
monitoring systems, and is currently drafting an EA/RIR/IRFA on 
implementing electronic monitoring (camera observation) requirements 
for the shore-based sector of the whiting fishery. These EA/RIR/IRFAs, 
which have been discussed in the Council process and made available to 
the public both through the Council and NMFS notice-and-comment 
processes, evaluate the costs and appropriateness of the different 
types of monitoring mechanisms for different fishery management goals.
    For the practicability analysis on NMFS's decision on Amendment 18, 
NMFS evaluated the costs of the various monitoring programs currently 
in place against the expected cost of 100 percent observer coverage. 
Current WCGOP costs to address the non-whiting portion of the 
groundfish fleet are approximately $4.5 million per year. NMFS 
estimates that expanding WCGOP coverage so that all vessels were 
required to carry an observer whenever they are fishing would cost 
approximately $13.3 million per year, a significant cost when compared 
against the commercial fishery's total 2004 ex-vessel revenue of $61 
million. NMFS considers implementing WCGOP to be both a practicable 
observer program to implement, and an appropriate approach to observer 
coverage for this fishery. An observer program that costs over a fifth 
of the fishery's revenue is not a program that is ``reasonable and 
capable of being done in light of current technology and economic 
considerations,'' particularly bearing in mind the many other costs 
associated with the science, management, and enforcement programs 
needed to support this fishery. The remaining paragraphs in this 
response to Comment 6 are excerpted or summarized from the 
practicability analysis and provide the agency's reasons for 
determining particular management measures to be practicable or 
impracticable at this time.
    Vessel incentive programs. A vessel incentive program reduces 
bycatch by rewarding ``clean'' vessels with greater economic 
opportunity, thereby encouraging vessels to reduce their amount of 
bycatch. The Council discussed a type of vessel incentive program that 
would grant higher landings limits to vessels that voluntarily carry 
and pay for observers. Amendment 16-1 put a mandatory observer program 
into the FMP. Federal regulations at 50 CFR 660.314(c)(2) state ``When 
NMFS notifies the vessel owner, operator, or permit holder, or the 
vessel manager of any requirement to carry an observer, the vessel may 
not take and retain, possess, or land any groundfish without carrying 
an observer.''
    Observers that are required to be carried onboard vessels as part 
of a statistical sampling program are observing vessels behaving within 
the framework of regulations that apply to the fleet as a whole. This 
type of observer sampling plan allows data from the observed portion of 
the fleet to be expanded to provide bycatch estimates for the whole 
fleet.
    NMFS does not support an incentive program wherein vessels that 
voluntarily carry an observer are permitted to access higher landings 
limits than otherwise allowed, because such a program could undermine 
NMFS's observer sampling plan. Observers carried on a portion of the 
fleet under an incentive program that allows vessels to operate outside 
of the normal regulatory framework do not generate data that are useful 
to modeling the whole fleet's behavior. Thus, while an incentive-based 
observer program may be beneficial to the particular participating 
vessels, it is not necessarily beneficial, and could even be harmful, 
to the statistical validity of NMFS's sampling program design,

[[Page 66129]]

which provides data that support bycatch modeling on the groundfish 
fisheries. In addition to these scientific concerns, even if vessels 
were to pay for observers outside of the WCGOP program, NMFS would need 
to pay for the infrastructure to train the observers and process and 
analyze their data--a benefit to the participating vessels, but not to 
the fishery as a whole. For these reasons, NMFS does not consider an 
incentive-based observer program to be a practicable bycatch 
minimization measure for implementation in the groundfish fishery.
    Discard caps or bycatch limits. Discard caps or total catch limits 
reduce bycatch by restricting fisheries when those limits are reached. 
A vessel cap works similarly to a vessel incentive in that target 
fishing can occur so long as the vessel does not reach a particular 
cap. This essentially rewards a vessel or fleet with fishing 
opportunity if they fish cleanly. The Council's preferred alternative 
includes the use of this mechanism for reducing bycatch when 
practicable. In addition, bycatch limits have been in place for the 
Pacific whiting fishery since 2004.
    NMFS uses the term ``bycatch limit,'' rather than ``discard cap,'' 
because a bycatch limit is more appropriate in a multi-species fishery, 
where species that are incidentally caught may be retained or 
discarded. Either term may be confusing, since the Magnuson-Stevens Act 
defines bycatch as only those fish that are discarded, whereas the 
groundfish FMP views bycatch species as those species that may not have 
been one of the target species, but which were taken incidentally to 
the targeted species. In the case of overfished species, NMFS and the 
Council manage the fishery to minimize the total catch of each 
overfished species, including the discards of those species. The term 
``discard cap'' might be more appropriate for a fishery where a single 
species is targeted and all non-target species are discarded. West 
Coast groundfish fisheries are multi-species fisheries and management 
measures are intended to either ensure that non-target species are 
avoided (e.g. the Rockfish Conservation Areas,) or to allow non-target 
species to be retained when caught in common with target species (e.g. 
trip limits for minor slope rockfish in association with fixed gear 
sablefish limits.)
    NMFS quoted Amendment 18's provisions for sector total catch limit 
programs in the response to Comment 5, above. NMFS also provided an 
example of how bycatch limits work under the current management system, 
which relies on inseason catch projections, rather than on real-time 
catch estimates, to calculate current catch. The only groundfish 
fishery sector with total catch limits based on near real-time data for 
both landings and discards is the whiting fishery. In 2004, NMFS first 
implemented overfished species bycatch limits for canary and 
darkblotched rockfish taken incidentally in the Pacific whiting fishery 
via emergency rule and inseason action (August 3, 2004, 69 FR 46448, 
and; October 6, 2004, 69 59816). The final rule for the 2005-2006 
groundfish specifications and management measures implemented bycatch 
limits for canary and widow rockfish taken incidentally in the 2005 and 
2006 Pacific whiting fisheries (December 23, 2004, 69 FR 77012.) NMFS 
subsequently implemented a bycatch limit for darkblotched rockfish in 
the 2006 Pacific whiting fishery on July 1, 2006 (71 FR 37844, July 3, 
2006.) These limits apply to the non-tribal whiting fishery, in which 
two of the three participating sectors have at least 100 percent 
observer coverage, the catcher-processor and mothership sectors. The 
shore-based whiting sector, which consists of catcher vessels that 
deliver their catch to processing plants on land, has been managed in 
2004-2006 under an EFP that requires vessels to carry electronic 
monitoring (EM) systems. On whiting catcherboats, EM systems were used 
to monitor whether vessels were retaining all of their catch or 
discarding a portion of catch, since this fishery is known to have 
relatively low bycatch rates and is assumed to maximize its retention 
of all fish caught. As applied in this fishery, EM technology is not 
capable of estimating species-specific discards for trawl fisheries at 
this time; however, it may provide an independent source of information 
for estimating total catch.
    Several practical considerations make implementing near real-time 
bycatch limits practicable for the whiting fishery, but would make them 
impracticable for the remainder of the groundfish fleet. Near real-time 
monitoring would be required to implement near real-time bycatch 
limits. West Coast groundfish trawl vessels, which tend to be larger 
than non-trawl vessels, have an average size of about 70 feet in length 
overall. Vessels of this size have limited deck space for catch 
sampling, and restricted bunk space for accommodating observers on 
overnight trips. Some vessels that operate in nearshore waters are so 
small, under 20 feet in length overall, that vessel operators take 
their boats out alone, not having space for crew, let alone observers. 
By contrast, the catcher-processor and mothership vessels that 
participate in the at-sea whiting fishery carry two observers apiece 
and are all at least 125 feet in length overall, with some are over 250 
feet in length overall. Also unlike the whiting fishery, the multi-
species groundfish fishery has not been very profitable for many of its 
participants in recent years, which at times means that vessel owners 
cannot afford to keep their vessels in optimal condition. Since WCGOP's 
inception in 2001, NMFS has had to refuse to deploy observers on 
several vessels that have failed to meet observer safety regulations at 
50 CFR 600.746(c) and 660.314(d)(2).
    Unlike the whiting fishery, where whiting is the sole target 
species, the rest of the groundfish fleet tends to target multiple 
species simultaneously. This means that inseason whiting fishery 
management requires that managers track fewer than ten species for 
real-time management issues, while inseason management of the non-
whiting groundfish fisheries would require tracking 30+ species or 
species groups for total catch. Similar to the needs for an IFQ 
program, the shoreside landings monitoring infrastructure, including 
the fish ticket system, would need to be greatly expanded to support 
the data processing speed that would be required to implement a near 
real-time bycatch limit program for the non-whiting fisheries. Finally, 
the number of boats in the whiting fishery is relatively small, roughly 
40-50 in all three non-tribal sectors, with landings occurring at few 
ports. Tracking these few vessels and ports is much more 
straightforward than would be the case in the overall groundfish 
fishery, which has over a thousand vessels making landings in dozens of 
ports coastwide.
    Regardless of the type of bycatch limit implemented, moving the 
bycatch limit program beyond the whiting fishery would require that the 
Council allocate the species intended to be limited between the fishing 
sectors. Species or species groups that are currently subject to 
allocations are managed with sector-specific total catch limits, are 
monitored inseason for their landed catch and modeled for total catch 
based on past landed catch and bycatch rates, and are closed if those 
allocations are achieved. For all species except Pacific whiting and 
sablefish, the allocations are primarily between the limited entry and 
open access portions of the commercial fishery. These are relatively 
large sectors, which means that the activities of one portion of a 
sector may affect the fishing opportunities of another portion of the 
sector. For example, inseason modeling in 2005 indicated that the

[[Page 66130]]

summer flatfish trawl fisheries had taken more petrale sole than had 
been expected from pre-season modeling, which led the Council to close 
the fall/winter directed petrale sole fishery.
    The Council is developing a multi-species inter-sector allocation 
EIS that would support transitioning the trawl fleet to an IFQ program. 
This EIS would also support dividing available groundfish harvest into 
smaller sector harvest levels than are used under current management. 
The groundfish fishery's current standardized bycatch reporting 
methodology is adequate to support the management system of pre-season, 
inseason, and post-season total catch evaluation, coupled with inseason 
management measures revisions. If available groundfish harvest is 
divided into smaller sectors, NMFS and the Council will need to re-
evaluate the fishery's standardized bycatch reporting methodology to 
determine how to best match the monitoring efforts to management needs.
    As total available harvest is divided into smaller percentage 
shares, the coverage level of associated fishery monitoring usually 
needs to increase. In a fishery managed with vessel-specific total 
catch limits, such as in an IFQ program, participating vessels may need 
100 percent coverage of at-sea fishing activities. NMFS anticipates 
that expanding fishery monitoring to support a vessel-specific total 
catch limit program would cost $13.3 million annually, or nearly $9 
million more than the current observer program. That level of funding 
is not currently available from management agencies. Although other 
regions have implemented industry-funded observer programs, 
establishing that type of system requires an adequate study of 
appropriate checks and balances, assurances that such a program would 
not encourage the misreporting of observed catch, and an infrastructure 
to support the training of observers and analysis of observer data. In 
some fisheries, at-sea monitoring could be managed with EM systems, 
which may cost less, but those systems would have to be tested for 
their usability with each particular type of fishery. NMFS, the States, 
and the whiting industry are in the third year of testing EM systems 
for the shore-based sector of the whiting fishery.
    Fishery or sector total catch limits, in the form of OYs, harvest 
guidelines, and sector allocations, are part of the current management 
process and are managed through the pre-season/inseason/post-season 
evaluation process described above. Dividing current sector allocations 
into smaller percentages would require the development of the inter-
sector allocation EIS, which is underway. Vessel-specific total catch 
limits would also rely first on harvest allocation between sectors, and 
then on harvest allocation between individual vessels. The FEIS's 
preferred alternative supports sector total catch limits, where 
practicable. The ``hard'' sector caps recommended by The Four 
Organizations are not now practicable for the groundfish fishery.
    Full or maximized retention programs. Full or maximized retention 
programs are designed to eliminate the discard of species caught during 
fishing activities by requiring fishers to retain species that are 
caught. Full or maximized retention programs require a different 
monitoring system than a fishery managed with landing limits for 
various species. Complete full retention may be a problem in some 
situations because of safety or other operational reasons; therefore, 
NMFS is also considering maximized retention programs that would 
require complete retention of catch except in certain specified 
circumstances and vessels using best fishing practices to reduce 
discard. NMFS, the States, and the whiting industry are experimenting 
with a maximized retention and EM program in the shore-based whiting 
fishery through an EFP, as discussed above. In a full- or maximized-
retention fishery, observers or EM devices are answering a yes/no 
question: Did the vessel retain all of its catch taken in a particular 
trip? Operating a fishery with that management question requires higher 
monitoring coverage than in a fleet sampled for bycatch rates, but less 
sophisticated evaluation of fishing activities. For example, WCGOP 
observers are not simply used to determine whether catch is retained, 
but are instead deployed to determine how much catch is discarded, the 
species composition of the discarded fish, and collect biological data 
from discard species. An EM system may be an effective mechanism for 
answering the yes/no question in a less costly manner, but it cannot 
collect information at the same sophistication level as that collected 
by a human observer. Conversely, deploying a human observer simply to 
answer a yes/no question could be an impractical use of limited staff 
resources.
    Amendment 18 supports the implementation of full retention programs 
where practicable. The Council is developing a maximized retention 
management program for the shore-side sector of the whiting fishery, 
and will next consider that program at its November 2006 meeting. Such 
management is appropriate for the whiting fishery, because the delay in 
catch refrigeration that would result from the time needed to sort 
catch at sea would impair the quality of the target species' flesh for 
sale. Full retention management may not be appropriate or practicable 
for other fisheries, particularly under the current rockfish rebuilding 
regime. Some of the rebuilding rockfish have a high enough market value 
that a program to require full retention might backfire by providing 
vessels with incentives to target rebuilding species so as to ensure 
that they are part of the total catch that is required to be retained.
    Although full retention may lead to improved accounting of total 
catch, it does not eliminate bycatch, as defined in the Magnuson-Steven 
Act. Fish that are not sold would be regarded as if they were 
discarded. Many fish that are currently discarded at sea are not landed 
because they do not meet minimum standards for size or quality that are 
established by individual processors. NMFS cannot require processors to 
buy fish for which they have no market. Potential full- or maximized-
retention programs need to be evaluated with these practical 
considerations in mind if they are to be effective at minimizing 
bycatch to the extent practicable.
    Gear restrictions. Gear restrictions minimize bycatch in several 
ways, by: Restricting gears that are prone to catching bycatch species 
to operating in certain areas; requiring that certain gears be modified 
so that they either allow bycatch species to escape the gear once 
caught, or so that they prevent non-target species from being caught on 
or by the gear; or, requiring a certain gear type be used that is less 
prone to catching bycatch species. Gear restrictions that either reduce 
groundfish bycatch, or reduce bycatch in the groundfish fisheries have 
been implemented for several West Coast fisheries. The State-managed 
pink shrimp trawl fishery is subject to a finfish excluder device 
requirement, which is an alteration to the trawl net that allows 
finfish to escape out of the top of the net before the trawl net's 
final collection point for shrimp. For groundfish trawl, NMFS prohibits 
the use of large footrope trawl gear in waters inshore of a boundary 
line approximating the 100 fm (183 m) depth contour, a measure to 
prevent vessels from accessing the more rocky habitat where several 
overfished species congregate. And, north of Cape Mendocino and 
shoreward of the RCA, trawlers are required to use a selective flatfish 
trawl net that has been designed

[[Page 66131]]

so that it greatly reduces the retention of most rockfish species. Use 
of this gear has allowed trawlers to retain more of the abundant 
flatfish species while reducing incidental catch of rockfish. These 
newer restrictions to aid in rockfish rebuilding are in addition to 
NMFS regulations that have long been in place to minimize juvenile fish 
bycatch through a trawl minimum mesh size requirement, and to prevent 
lost fishpots from ghost fishing (which may be considered a form of 
bycatch) by requiring those pots to be constructed so that at least a 
portion of the pot's netting is biodegradable.
    Some gear modifications may be appropriate to reduce bycatch in one 
fishery, but inapplicable and impracticable for another fishery. For 
example, finfish excluder devices are practicable for reducing finfish 
bycatch in the pink shrimp trawl fishery, but those same devices are 
not practicable for shrimp trawl vessels in regions of southern 
California because the excluders get plugged with sea cucumbers and are 
rendered ineffective. NMFS has implemented the gear restrictions that 
are known to be practicable bycatch reduction measures. The FMP 
provides incentives for experimental fishing that supports development 
of new and modified gear types by placing its highest priority for 
experimental harvest set-asides on bycatch reducing experimental 
measures. NMFS will continue to ensure that future gear modification 
requirements are adequately tested and studied for their practicability 
prior to implementation.
    Comment 7: The Four Organizations believe that the proposed rule 
fails to provide a rational basis for dismissing measures as 
impracticable. National Standard 9 guidelines for determining the 
practicability of a certain bycatch reduction measure allow for some 
balancing of conservation and economics. However, as the Ninth Circuit 
recently affirmed ``[t]he purpose of the Act is clearly to give 
conservation of fisheries priority over short-term economic interests * 
* * [t]he Act sets this priority in part because the longer-term 
economic interests of fishing communities are aligned with the 
conservation goals set forth in the Act.'' Natural Resources Defense 
Council v. NMFS, 421 F.3d 872 (9th Cir. 2005) [hereinafter NRDC v. 
NMFS]. The particular importance of bycatch reduction for rebuilding 
overfished species underlies the need to implement bycatch measures 
that may involve short-term economic costs in order to create a more 
economically viable, efficient and sustainable fishery over the medium- 
to long-term.
    The benefits to both industry and the environment of reducing 
bycatch through many of the measures analyzed in the PEIS very likely 
could outweigh the short-term inconvenience and cost that would be 
involved. NMFS needs to not only consider the costs but also the 
economic benefits of implementing those measures. For example, the 
Council's basis for determining that several measures, such as sector 
and vessel caps and individual quotas (IQs), are currently 
impracticable is the lack of a sufficient observer program. (71 FR 
36506 at 36510, ``An IQ program with specific bycatch limits would be 
dependent upon a more intense level of monitoring than is practicable 
under the current management regime * * *.'') Not only does NMFS fail 
to explain why a more intense level of monitoring is not currently 
practicable, but it actually ignores consideration of many of the 
economic benefits of bycatch reduction that it had considered 
previously in its EIS, and thus breaches the agency's duty under the 
APA to give reasoned consideration to the relevant factors and to 
articulate a rational connection between the facts found and choice 
made.
    The Four Organizations believe that the economic analysis involved 
in a practicability determination must include the costs of running an 
inefficient and wasteful fishery absent more effective bycatch 
measures, in addition to the cost of implementing those more effective 
measures. The inconvenience of changing business as usual and the costs 
of administering a transition to a more efficient management regime are 
only part of the equation and do not, by themselves, make something 
impracticable.
    Response: NMFS discussed overfished species rebuilding and the 
agency's actions in response to court orders from NRDC v. NMFS in the 
preamble to the proposed rule to implement Amendment 16-4 and the 2007-
2008 groundfish harvest specifications and management measures, 
published September 29, 2006 (71 FR 57764). Amendment 16-4 and its 
implementing regulations revise the rebuilding plans for seven rockfish 
species, in accordance with the court's direction in NRDC v. NMFS so 
that the rebuilding periods are as short as possible, taking into 
account the status and biology of the stocks and the needs of fishing 
communities. In NRDC v. NMFS, the court discusses the issue of whether 
the conservation needs of managed stocks are aligned with the economic 
interests of fishing communities, ``* * * [M]ay the Agency [NMFS] 
extend the rebuilding period beyond the shortest possible rebuilding 
time to account for the needs of fishing communities? It would be 
possible to resolve the ambiguity by concluding that the [Magnuson-
Stevens] Act as a whole makes it clear that the needs of fishing 
communities are perfectly aligned with the environmental goal of 
rebuilding fish stocks in as short a time as possible. But if this were 
the case, the language `the needs of fishing communities' would be 
redundant (as these needs would be no different than the need to 
rebuild stocks in as short a time as possible) * * *. There is 
therefore an ambiguity in this part of the statute, requiring 
interpretation.'' The court also noted that ``* * * undoubtably the 
short-term economic interests of fishing communities diverge in some 
respects from the needs of fish species.''
    In NRDC v. NMFS, the court spoke to the bycatch of species managed 
under a rebuilding plan, saying, ``Section 1854(e)(4)(i) [of the 
Magnuson-Stevens Act,] then, allows the Agency [NMFS] to set limited 
quotas that would account for the short-term needs of fishing 
communities (for example, to allow for some fishing of plentiful 
species despite the inevitability of bycatch), even though this would 
mean that the rebuilding period would take longer than it would under a 
total fishing ban.'' As detailed in the EIS for Amendment 16-4 and the 
2007-2008 groundfish harvest specifications and management measures, 
NMFS and the Council anticipate that implementing Amendment 16-4 will 
cause some short-term economic harm to fishing communities in the form 
of foregone fishing opportunity for abundant species that co-occur with 
rebuilding species. Amendments 16-4 and 18 place a priority on 
conservation, but also take both the short- and long-term needs of 
fishing communities into account. The Magnuson-Stevens Act does not 
require that NMFS implement conservation measures that completely 
disregard the short-term needs of fishing communities.
    As part of Comment 7, The Four Organizations have provided a 
partial quote from the preamble to the proposed rule to implement 
Amendment 18, ``An IQ program with specific bycatch limits would be 
dependent upon a more intense level of monitoring than is practicable 
under the current management regime * * *.'' They then interpret their 
partial quote to mean that NMFS believes that a more intense level of 
monitoring is not practicable in the fishery, and that IQ

[[Page 66132]]

programs are therefore, impracticable. However, the section of the 
preamble that they quote is actually a discussion of the current 
Council process to develop an IQ program for the trawl fishery, 
including an explanation of how that process links with Amendment 18 
and its provisions for IQ and vessel-specific total catch limits. The 
explanation states in full, ``Amendment 18 revises the FMP to specify 
that individual fishing quota programs `would be established for the 
purposes of reducing fishery capacity, minimizing bycatch, and to meet 
other goals of the FMP.' An IQ program with specific bycatch limits 
would be dependent upon a more intense level of monitoring than is 
practicable under the current management regime and could be designed 
using the FMP's guidance on vessel-specific total catch limit 
programs.'' This section of the preamble to the Amendment 18 proposed 
rule does not, therefore, characterize a more intense level of 
monitoring as a bar to implementing an IQ program, but rather as an 
integral part of the implementation of such a program. The cost and 
practicability of implementing the type of observer program that would 
be associated with an IQ program, and the reasons that NMFS is not 
implementing such a program at this time, are discussed above in the 
response to Comment 6. The Council is in the process of developing an 
EIS to analyze such a program, see: http://www.pcouncil.org/groundfish/gfifq.html. The Council's EIS and IQ program development process is 
ongoing, and the Council and its advisory bodies will be working on a 
trawl IQ program in several meetings over the coming fall and winter.
    Finally, in Comment 7, The Four Organizations provide NMFS with 
what they believe to be appropriate elements to an economic analysis 
for a practicability determination. National Standard 9 Guidelines do 
not define the phrase ``to the extent practicable'' or require or 
recommend any specific types of economic analyses such as those 
suggested by the Four Organizations. However, these Guidelines do list 
the factors that the Councils are to consider in making decisions 
related to bycatch. Among the factors listed in the Guidelines, the 
following are included: Impacts on affected stocks; incomes accruing to 
participants in directed fisheries in both the short term and the long 
term; incomes accruing to participants in fisheries that target the 
bycatch species, which include non-consumptive uses of bycatch species 
and existence values, as well as recreational values; impacts on other 
marine organisms; changes in fishing, processing, disposal, and 
marketing costs; changes in fishing practices and behavior of 
fishermen; and changes in research, administration, and enforcement 
costs and management effectiveness. Chapter 4 of the EIS and the 
practicability analysis provide an assessment of these factors. For 
example, Chapter Four contains Table 4.6.1. which provides a relative 
ranking of the bycatch reduction methods (tools) for each alternative 
used to reduce bycatch and bycatch mortality, and to address 
accountability issues; Table 4.6.2. ranks alternatives by their 
effectiveness at reducing bycatch, enforcing and monitoring bycatch 
measures, and reducing compliance costs to industry and Table 4.7.1 
which summarizes the effects of the alternatives on the social and 
economic environment. The practicability analysis contains a discussion 
of observer costs and potential ex-vessel values for the groundfish 
fisheries in a fishery that has seen declining revenues, increased fuel 
costs, and has a trawl sector that is being taxed at 5 percent to repay 
a government financed buyback loan. For example, Table 2 provides 
conceptual estimates of at-sea observers, VMS, enforcement costs, and 
other cost estimates according to various scenarios such as maintaining 
the status quo, Sector Bycatch Caps, and IFQs.
    NMFS does not agree that the current management scheme is 
``wasteful and inefficient.'' As explained above, NMFS has minimized 
bycatch to the extent practicable by implementing bycatch reduction 
measures, including but not limited to: Large-scale time-area closures, 
gear restrictions on use and requirements for configuration, and 
bycatch limits for appropriate fisheries. As also explained above, the 
Council and NMFS are developing additional programs, such as the 
maximized retention and monitoring program for the shore-based whiting 
fishery, an IQ program for the trawl fishery, and a permitting program 
for the open access fishery, each of which is being designed in part to 
either directly or indirectly minimize bycatch. However, as assessed in 
the practicability analysis, the benefits to the resource that might be 
derived from implementing a ``hard'' bycatch cap program beyond the 
whiting fishery do not significantly exceed those of the current pre-
season/inseason/post-season catch evaluation and management measures 
adjustment system described in the response to Comment 5 enough to 
outweigh the extremely high coast of monitoring and implementing such a 
program for the fishery. Since the groundfish fishery is divided into 
six cumulative limit periods each year and is managed with 5-6 
opportunities per year for management measure adjustment based on best 
available data, the West Coast groundfish fisheries do not carry the 
same risks as derby fisheries, nor would they derive the same benefits 
from a ``hard'' bycatch cap program as would derby fisheries.
    The practicability analysis includes a projection, that should all 
the overfished species be restored to MSY levels, that the entire 
commercial groundfish fishery may reach on a average basis, ex-vessel 
revenues of $100 million. However, the current ex-vessel revenues are 
about $61 million, annually. Expanding observer coverage to 100 percent 
of the trawl fleet alone would cost $13.3 million or nearly $9 million 
more than the current program. Note that these figures do not include 
vessel fuel costs, other operating costs, State landing fees, Federal 
buyback loan repayment fees, or the costs to the States, tribes, and 
Federal goverments for the day-to-day management of such a program.
    Therefore, the analyses contained with the NEPA document are 
consistent with the National Standard Guidelines. NMFS does agree that 
an increase in cost does not necessarily make something impracticable. 
However, if a change in the management system cannot be covered by 
available funding sources (either existing sources or from potentially 
new sources of funding), that management system simply cannot be 
implemented, and is therefore not only impracticable but also 
impossible. Such is the case with 100 percent observer coverage. 
Requiring fish harvesters to provide such funding via an ex-vessel tax, 
(limited by Congress to 3 percent of ex-vessel value, and limited only 
to fisheries managed with IQ programs,) will not be sufficient to cover 
the cost of that program. Available funding from management agencies is 
also not sufficient to support such a program. Increasing the funds 
associated with observer coverage by 200 percent is not a matter of 
inconvenience but a real budgetary resource problem.
    The practicability analysis shows that the costs of several 
management systems are substantial when compared to the exvessel 
revenue generated by the fishery. NMFS considered this factor in 
determining whether to implement these additional management systems at 
this time, in addition to considering the appropriate factors in the 
National Standard Guidelines, as described above in the response to 
Comments 5 and 6.

[[Page 66133]]

    Comment 8: The Four Organizations believe that Amendment 18 does 
not provide clear objectives, targets, or performance standards for 
minimizing bycatch. For measures that require interim steps before they 
can be deemed practicable, the rule should identify the obstacles to 
achieving those interim steps and contain a plan and schedule for 
taking those steps. Notwithstanding the declaration that the preferred 
alternative represented all ``practicable'' measures to minimize 
bycatch and bycatch mortality, proposed Amendment 18 fails to implement 
many of the measures because they are deemed not yet practicable. The 
EIS explains that the Council ``anticipates phasing in'' some of these 
measures, such as sector bycatch caps, but neither the Council nor NMFS 
has yet to explain the steps or timeline for such a phase in. The 
closest the Council or NMFS get to committing to a timeline is by 
explaining that the monitoring and enforcement infrastructure necessary 
to implement hard sector caps will be established ``over the next 
several years.'' Nearly two years later, neither the Council nor NMFS 
has clarified steps or a timeline for implementation.
    The preferred alternative from the EIS, the one that NMFS considers 
practicable, includes the use of performance standards as a way of 
measuring progress in reducing bycatch. The EIS explains that such 
performance standards ``could be based on low catch or catch rates of 
overfished species, low bycatch of non-groundfish species, or other 
factors.'' However, the EIS also explains that it plans to define such 
standards ``at a later date.'' Neither Amendment 18 nor the proposed 
rule discusses the use of performance standards or goals as a way of 
reducing bycatch rates over time. This is a significant oversight that 
NMFS should require the Council to remedy or should do so itself. NMFS 
and/or the Council must explain this gap and must either commit to 
defining and adopting such standards or provide reasons for failing to 
do so. The agency cannot claim that performance standards are 
practicable on the one hand, yet completely neglect the issue in the 
implementation of its bycatch plan.
    Examples of quantitative bycatch performance standards could 
include the following: ``within x years, the ratio of total bycatch to 
total catch will be reduced by y percent'' or, ``within x years, 
regulatory discards will be reduced to y percent of total landings.'' A 
bycatch reduction plan could also include evaluating discard ratios and 
the reasons for discards by sector, with a commitment to mitigate the 
most severe bycatch problems, and encouraging shifts from high-bycatch 
gears to lower ones. If, for example, most discarding is the result of 
trip limits, NMFS should evaluate phasing out trip limits. Or, if 
particular areas/seasons/gears have very high bycatch ratios, then 
time/area/gear closures might be the most effective reduction measures.
    Response: The Magnuson-Stevens Act requires that bycatch be 
minimized to the extent practicable, which NMFS interprets to mean ``to 
the extent that a management measures is reasonable and capable of 
being done in light of available technology and economic 
considerations.'' As NMFS has discussed throughout this preamble in the 
responses to several comments, NMFS has determined that Amendment 18 
meets that requirement to implement currently practicable bycatch 
minimization measures in the FMP and Federal regulations. Amendment 18 
also goes beyond the Magnuson-Stevens Act's requirements by revising 
the FMP so that the FMP includes both those bycatch minimization 
measures that are currently practicable and bycatch minimization 
measures that are not now practicable, but which may become practicable 
at a future time.
    As detailed above in the response to Comment 3, NMFS and the 
Council have implemented many management measures since 2001 to 
minimize bycatch. The Council looks for new ways to minimize bycatch in 
all of its groundfish management efforts, and recognizes that a 
requirement to ``minimize'' a type of fishing effect on a natural 
resource is an ongoing process. In other words, while Amendment 18 
minimizes bycatch to the extent currently practicable, the Council is 
also looking for new ways to continue to further minimize bycatch by 
making additional bycatch minimization tools practicable in the future. 
To that end, the Council is developing a bycatch work plan that is 
intended to prioritize implementation of bycatch minimization measures 
that are not practicable at this time, but which may become practicable 
at a future time. As with all of the Council's work planning documents, 
any timeline in the bycatch work plan could be subject to revision 
based on emergency need to address other issues. For example, the 
Council dropped much of its previously-scheduled workload on groundfish 
and other species groups in the September 2005 through June 2006 period 
in order to devote adequate time and attention to responding to the 
court's order in NRDC v. NMFS.
    The Council reviewed its draft work plan at its September meeting 
and recommended that, for its November 2006 meeting, the work plan be 
revised to include timelines for potential additional bycatch 
minimization measures. At each of its meetings, the Council reviews and 
updates timelines for all of the issues within its major areas of 
responsibility: Groundfish FMP, Salmon FMP, Coastal Pelagic Species 
FMP, Highly Migratory Species FMP, Pacific Halibut Catch Sharing Plan, 
and Habitat and Marine Reserves issues. Among the many issues it will 
deal with at its November 2006 meeting, the next groundfish fishery 
bycatch minimization program the Council will address is a maximized 
retention and electronic monitoring program for the shore-based whiting 
fishery. The Council will also begin discussing an inter-sector 
groundfish harvest allocation at its November 2006 meeting, which would 
need to be completed before hard sector-specific bycatch limits or an 
IQ program could be considered or implemented.
    Alternative 5 of the EIS, ``Individual Fishing (Catch) Quotas and 
Increased Retention'' discusses an IQ program in which ``some or all of 
overfished stock's OYs would be reserved for vessels with the best 
bycatch performance.'' Alternative 7, the preferred alternative, 
includes elements from Alternative 5, which it articulates as ``support 
the future use of Individual Fishing Quota programs for appropriate 
sectors of the fishery.'' The full text of the Council's preferred 
alternative from the EIS is provided above in the response to Comment 
4. As the Council develops IQ programs, where practicable for 
particular sectors of the commercial groundfish fishery, it may set 
bycatch performance standards for participants in those IQ fisheries. 
Quantitative bycatch performance standards of the type suggested by The 
Four Organizations were not analyzed in EIS, were not part of the 
preferred Alternative, and are not part of Amendment 18 or the FMP. 
However, NMFS does not believe that quantitative bycatch performance 
standards that establish requirements such as those suggested by the 
Four Organizations would necessarily reflect the best scientific 
information that becomes available in the future, such as new 
recruitment information and new stock assessments.
    The groundfish fishery is managed with several performance measures 
that reduce bycatch for different fishing gears. Groundfish trawl gear 
has minimum mesh size requirements intended to minimize the bycatch of

[[Page 66134]]

juvenile groundfish (50 CFR 660.381(b)(2)). Groundfish pot gear is 
required to have biodegradable escape panels to prevent lost pots from 
ghost fishing (50 CFR 660.382(b)(3) and 660.383(b)(4). Groundfish trawl 
gear is also separated into large and small footrope gear, with large 
footrope gear being prohibited for use shoreward of the 100 fm (183 m) 
depth contour, so as to prevent large footrope gear from operating in 
more vulnerable rockfish habitat (50 CFR 660.306(h)(6). And, small 
footrope trawl gear used north of 40[deg]10[min] N. lat. must comply 
with selective flatfish trawl gear design standards developed to 
minimize rockfish bycatch in nearshore flatfish trawl fisheries (50 CFR 
660.381 (b)(5)(i)). In addition, pot gear must possess a biodegradable 
escape mechanism to prevent lost pots from ghost fishing.
    The EIS's preferred alternative does include a statement that, in 
addition to other elements, ``baseline accounting of bycatch by sector 
shall be established for the purpose of establishing future bycatch 
program goals.'' This preferred alternative element is similar to the 
suggestion from The Four Organizations that ``[a] bycatch reduction 
plan could also include evaluating discard ratios and the reasons for 
discard by sector. * * *'' One of the two measures that the Council 
identified as practicable to work on in the near-term, is evaluating 
the speed at which observer and other fishery data enters the Council 
management process, in order to determine where and how data delivery 
time might be improved. At the Council's June 2006 meeting, NMFS 
reported to the Council on observer data delivery timelines and their 
reliance on data delivery timelines from comparative State-collected 
data, such as data from trawl logbooks and fish tickets (which are not 
received real-time). At the Council's September 2006 meeting, NMFS 
reported to the Council with an update on its bycatch estimation 
methodologies.
    The Four Organizations also suggest ``a commitment to mitigate the 
most severe bycatch problems, and encouraging shifts from high-bycatch 
gears to lower ones.'' NMFS and the Council have and will continue to 
respond to bycatch problems as they are identified, consistent with our 
responsibility under the FMP and the statute in order to sustainably 
manage fisheries. The EIS's preferred alternative does not explicitly 
address gear shifting, but the Council is considering allowing shifts 
in gear types used as part of its analysis for a trawl IQ program.
    Finally, The Four Organizations suggest that ``if particular areas/
seasons/gears have very high bycatch ratios, then time/area/gear 
closures might be the most effective reduction measures.'' NMFS already 
manages the groundfish fishery with significant time/area/gear closures 
and cumulative limits based on catch ratios between target and bycatch 
species, which are designed to minimize bycatch and minimize fishing 
effects on EFH, as detailed above in the response to Comment 3.
    Comment 9: For overfished species, the OY serves as a de facto 
bycatch limit because such species are not directly targeted by the 
fishery. However, The Four Organizations believe that this approach has 
the Magnuson-Stevens Act's mandate backwards. Instead of using the OY 
as a limit, and maximizing the catch of healthier co-occurring stocks 
while minimizing bycatch of overfished species, the Council uses the OY 
for overfished species as a target. Thus, the selection of OY for 
overfished species, as deduced from the rebuilding parameters contained 
in the rebuilding plans, is the driver for how much bycatch of 
overfished species occurs. However, the law does not allow NMFS to 
maximize bycatch of overfished species to the highest level that can be 
justified under the rebuilding plans. The law requires that the agency 
rebuild overfished species as quickly as possible. Reducing bycatch of 
overfished species is an essential component of rebuilding those 
species in the shortest possible time period.
    Response: As stated above in the response to Comment 8, NMFS has 
discussed its approach to overfished species rebuilding in the proposed 
rule to implement Amendment 16-4 and the 2007-2008 groundfish harvest 
specifications and management measures (71 FR 57764, September 29, 
2006). The Magnuson-Stevens Act defines ``optimum yield'' as follows: 
``The term `optimum', with respect to the yield from a fishery, means 
the amount of fish which--(A) Will provide the greatest overall benefit 
to the Nation, particularly with respect to food production and 
recreational opportunities, and taking into account the protection of 
marine ecosystems; (B) is prescribed as such on the basis of the 
maximum sustainable yield from the fishery, as reduced by any relevant 
economic, social, or ecological factor; and (C) in the case of an 
overfished fishery, provides for rebuilding to a level consistent with 
producing the maximum sustainable yield in such fishery.''
    The West Coast groundfish fishery is a mixed-stock fishery, with 
many healthy stocks co-occurring with overfished stocks. Overfished 
species are required to be rebuilt as quickly as possible, taking into 
account the status and biology of the stocks, the needs of fishing 
communities, and the interaction of the overfished stocks within the 
marine environment. The Four Organizations are correct in asserting 
that West Coast fisheries are managed so that overfished species are 
not target species in any fisheries. Since 2000, NMFS and the Council 
have implemented harvest specifications and management measures that 
limit harvest of overfished species to the amount necessary to allow 
some targeted fishing for the healthy fish stocks that co-occur with 
overfished species. This policy of preventing the fisheries from having 
full access to the OYs of healthy stocks that co-occur with overfished 
species is necessary in order to constrain the incidental catch of 
overfished species. NMFS recently published a proposed rule to 
implement Amendment 16-4, which would set overfished species rebuilding 
plans for 2007 and beyond. Although Amendment 16-4 continues to 
eliminate target fishing and minimizing bycatch of overfished species, 
this amendment takes a new approach of considering the interactions of 
the overfished species with each other and setting fishery management 
measures to ensure the strongest protections for the least productive 
of the overfished stocks.
    Preventing only the directed catch of overfished species does not 
allow those stocks to rebuild as quickly as possible; therefore, the 
indirect catch of those stocks needs to also be limited. NMFS agrees 
that ``[r]educing bycatch of overfished species is an essential 
component of rebuilding those species in the shortest possible time 
period.'' That approach has been the cornerstone of NMFS and Council 
rebuilding efforts, as evidenced by the many regulations imposed on the 
fishery to minimize overfished species bycatch--see response to Comment 
3, above. A notable result of this policy has been the increasing 
biomass trends for West Coast overfished species; one of the formerly 
overfished species, lingcod, has been rebuilt. Another result of this 
policy has been that fishing communities have not had full access to 
many of the healthy groundfish stocks, and thus have not been able to 
achieve the OYs for those species. NMFS, therefore, disagrees with The 
Four Organizations' assertion that NMFS's groundfish policies are 
intended to ``maximize bycatch of overfished species to the highest 
level that can be

[[Page 66135]]

justified under the rebuilding plans.'' The proposed rule to implement 
Amendment 16-4 and the Final EIS analyzing overfished species 
rebuilding plans more fully describe the approach NMFS and the Council 
are using to rebuild all seven overfished species collectively through 
target fishery elimination and bycatch minimization.
    Comment 10: The Four Organizations believe that the standardized 
total catch reporting methodology and observer program are inadequate. 
The MSA requires that all FMP's shall ``establish a standardized 
reporting methodology to assess the amount and type of bycatch 
occurring in the fishery.'' 16 U.S.C. 1853(a)(11). The reports on 
Pacific groundfish discards to date have been incomplete, unclear, 
untimely, and inconsistent from year to year. Total mortality 
estimates, including discards, for 2003-2005 were only first provided 
by NMFS in June 2006. Moreover, discard estimates are still lacking for 
many species (such as sharks, skates, crab and many rockfish species), 
reported discards are not presented by fishery and gear type, and they 
have been reported inconsistently from year to year, making trend 
evaluation impossible.
    NMFS must provide consistent and accurate estimates of discards, 
including all marine life discarded by fishery and gear type. 
Consistent with Amendment 18's requirement that catch data be made 
available for more precise inseason management, information should be 
collected, analyzed, and made public on as close to a real-time basis 
as possible, but certainly no less than once annually. This level of 
reporting is necessary to make informed decisions that protect marine 
ecosystems and promote sustainable fisheries. The Four Organizations 
request that NMFS hold an annual meeting to discuss the requested 
discard reports as a way to review the data and find out where 
improvements can be made. Another reason for improving the accuracy and 
timeliness of bycatch data is to provide fishermen with a proactive 
opportunity to avoid areas and seasons with high bycatch rates. The 
Four Organizations support the Council's efforts to investigate how to 
increase the frequency with which observer and total catch data are 
made available to the Council and the public. The Council has 
identified several steps in the data aggregation process that need to 
be reviewed for efficiency. This is a step in the right direction and 
the Council and NMFS should move expeditiously to implement such steps.
    Response: Amendment 16-1 established an observer program 
requirement in the FMP. Amendment 18 revises and expands Section 6.4 of 
the FMP, ``Standardized Total Catch Reporting and Compliance Monitoring 
Program.'' Under Amendment 18, the FMP continues to require the 
observer program that has been in place for the non-whiting groundfish 
fisheries since 2001 and for the at-sea whiting fisheries since 1991.
    As discussed in the preamble to the proposed rule for this action 
and noted by The Four Organizations, NMFS is working to meet the 
Council's priority request that the agency review observer data 
delivery speed with the aim of identifying where that rate of data 
delivery may be improved. Observer data collection and the calibration 
of observer data with associated data from State fish tickets and 
logbooks is a joint agency process between NMFS, the three States, the 
four groundfish tribes, and the Pacific States Marine Fisheries 
Commission. Total catch estimation requires that the agencies work 
together to assess catch from directed and incidental commercial 
groundfish fisheries, recreational fisheries, tribal fisheries, and 
scientific research groundfish take. The Council process brings the 
different data-gathering agencies together; therefore, NMFS is working 
with the Council and its advisory bodies to improve total catch data 
delivery so that total catch estimates may be provided on a regular and 
annual basis. NMFS agrees with the suggestion of The Four Organizations 
that the agency hold a meeting to discuss the results of observer data 
collection, analysis, and reporting with interested parties. NMFS will 
coordinate with the Council to set a first meeting that is open to the 
public, and available to Council and State participation, for Spring 
2007.
    Comment 11: The Four Organizations believe that the standardized 
total catch reporting methodology and observer program are inadequate. 
Other regions have already demonstrated that real-time access to 
observer data by fishermen is a practicable means of minimizing 
bycatch. For example, both the Alaska groundfish fishery and the at-sea 
whiting fishery in the Pacific region use real-time data with great 
success. The Four Organizations are disappointed that there is no 
similar effort to move towards real-time or near real-time access to 
information. There is no excuse for not considering the practicability 
of these measures that provide fishermen such a powerful tool to reduce 
bycatch.
    Response: NMFS addressed the impracticability of implementing the 
type of observer program used in the Alaska groundfish fishery and the 
at-sea whiting fishery in the response to Comment 6, above. The 
fisheries that The Four Organizations cite as examples to follow in 
designing a standardized total catch reporting methodology have 
significant operational differences from the West Coast groundfish non-
whiting fishery. An at-sea reporting system such as that used in Alaska 
or the West Coast at-sea whiting sectors is not applicable to the West 
Coast groundfish fisheries in part because the usual size of the West 
Coast groundfish vessels is quite small (usually less than 60 feet 
(18.3 m) and in many cases less than 20 feet (6.1 m) in length) as 
compared with the Alaska fleet, where vessels are typically greater 
than 125 feet (38.1 m) in length. The facilities on the small West 
Coast vessels reflect this small size. Alaska fleet vessels go to sea 
for weeks at a time, and have computers with a dependable power source 
and adequate communication systems. West Coast groundfish vessels, by 
contrast, go to sea for an average of 5 days, and many have limited 
power and communication systems. Alaska and at-sea whiting vessels have 
the space to host two observers who can share collection and data 
submission duties. West Coast groundfish vessels, by contrast, cannot 
accommodate more than one observer, who must then be available to 
sample the catch around the clock or for long periods of time. The 
catch of many of the Alaskan fisheries are higher volume than the West 
Coast groundfish fishery, but relatively pure, making bycatch sampling 
more straightforward. West Coast groundfish fisheries, by contrast, are 
heterogeneous with tens of species in a single haul. Over 60 of the 90+ 
species managed by the West Coast groundfish FMP are rockfish, many of 
which are similar in appearance, making correct identification more 
time consuming. These challenges to mounting an observer program for 
the West Coast groundfish fisheries have not prevented WCGOP from 
developing a sampling plan adequate to estimate bycatch in the 
groundfish fisheries. Observer programs must be tailored to the 
fisheries they are designed to observe; no single sampling plan is 
adequate and practicable for all fisheries.
    Comment 12: Amendment 16-1, now part of the FMP, commits NMFS to 
publishing, among other things, ``a description of the observer 
coverage plan in the Federal Register.'' FMP at 6.4.1.1. 
Notwithstanding the stated commitment to develop an observer plan that 
is sufficient ``to assess the amount and type of bycatch occurring in

[[Page 66136]]

the fishery,'' The Four Organizations believe that NMFS is still 
relying on the observer plan developed in 2001. They also believe that 
the scope of the observer plan continues to limit the quality and 
accuracy of the bycatch data on which the Council relies to manage the 
fishery and the bycatch minimization measures that the Council and NMFS 
deem currently practicable.
    Response: NMFS agrees that the 2001 observer coverage plan the 
agency had previously posted on-line needed to be updated to includ 
current observer coverage priorities and efforts in the West Coast 
groundfish fishery. NMFS has updated the observer coverage plan to 
reflect current practices and posted it online at: http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm. As 
explained below, NMFS disagrees with the comment about the quality and 
accuracy of the bycatch data.
    Comment 13: The Four Organizations request that NMFS implement 100 
percent observer coverage for optimal monitoring and inseason 
management of Pacific groundfish fisheries. In a report on necessary 
observer coverage levels, it was determined through simulation studies 
and literature review that if 100 percent observer coverage is not 
attainable, at least 20 percent observer coverage (of total catch) is 
necessary for reasonable estimates of common species (species making up 
35 percent of total catch) and at least 50 percent observer coverage is 
necessary for precise and accurate estimates of rare species, such as 
overfished rockfish. (Babcock, E.A., E.K. Pikitch, and C.G. Hudson, 
``How Much Observer Coverage is Enough to Adequately Estimate 
Bycatch?'' Oceana (2003), [hereinafter Oceana Report] ). Since Pacific 
Coast groundfish fisheries intercept rare, overfished species, NMFS 
should require at least 50 percent observer coverage, and preferably 
100 percent coverage, in order to have an accurate assessment of 
bycatch. Robust at-sea monitoring is essential for implementing all 
practicable bycatch measures.
    Response: The Four Organizations have asked that NMFS require at 
least 50 percent observer coverage, preferably 100 percent. The 
impracticability of 100 percent observer coverage in the West Coast 
groundfish fisheries is addressed above in the responses to Comments 6 
and 11. This response to Comment 13 will focus on the applicability of 
the Oceana Report to the West Coast groundfish fishery, and on the 
conclusion of The Four Organizations (one of these organizations is 
Oceana) that this report requires NMFS to implement 50-100 percent 
observer coverage for the West Coast groundfish fleet for observer 
coverage to be considered adequate for estimating total catch. NMFS's 
Northeast Fisheries Science Center rebutted many of the arguments in 
the Oceana Report in its Reference Document 05-09, ``NEFSC Bycatch 
Estimation Methodology: Allocation, Precision, and Accuracy (available 
online at: http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0509/) 
This response to Comment 13 addresses the Oceana Report as it may or 
may not apply to the West Coast groundfish fishery.
    In the 2005 groundfish fishery, over 90 percent of West Coast 
groundfish shoreside landings by volume were whiting landed in the 
shore-based whiting fishery. As mentioned above in the response to 
Comment 6, the shore-based whiting sector is monitored via an EFP 
requiring maximized retention and electronic monitoring. Of the non-
whiting 2005 groundfish landings, just under 27,000 mt of fish, 80 
percent of the landings by weight were made by trawl vessels. (The 2005 
non-pollock groundfish catch from the Gulf of Alaska and Bering Sea, by 
contrast, exceeded 500,000 mt of fish.) WCGOP began operations in 2001 
by focusing coverage on the trawl fleet because of its relatively 
higher percentage of landings. Since that time, WCGOP has expanded 
coverage to the limited entry fixed gear fishery and several of the 
open access fisheries that take groundfish incidentally.
    Most West Coast groundfish vessels do not participate only in the 
groundfish fishery in any given year. Instead, they employ a mixed 
fishing strategy, moving between target fisheries, depending on which 
seasons are open at what times. One of the major reasons that the 
groundfish fishery is managed as a year-round fishery is that 
groundfish is one of the few West Coast species groups that has few 
natural seasonal constraints on availability. For example, the 
Dungeness crab season primarily occurs in the winter when crab shells 
have hardened, while the start and end of the summer albacore tuna 
season is less predictable and dependent on albacore migrations in 
association with ocean climate conditions. Observer coverage 
percentages are a factor of the number of observers deployed over the 
number of vessels participating in the observed fishery. Because the 
number of observers WCGOP deploys is relatively constant, while the 
number of vessels making groundfish landings in any one cumulative 
limit period varies, observer coverage percentages vary according to 
the number of vessels participating in the fishery.
    WCGOP summarizes observer data, including coverage percentages, in 
regular reports to the Council and the public (see http://www.nwfsc.noaa.gov/research/divisions/fram/observer/datareport/index.cfm). The September 2005 report on trawl observer activities 
through April 2005 shows that WCGOP sampled 27 percent of non-whiting 
trawl landings, by volume, in 2004 (Table 1). Following the non-whiting 
trawl fleet, NMFS prioritized observer coverage on limited entry 
vessels with sablefish endorsements, which have permits to participate 
in the larger-volume primary sablefish fishery. The February 2005 
report on the sablefish-endorsed limited entry fixed gear fishery shows 
that WCGOP sampled 13 percent of longline landings and 15 percent of 
pot landings, by volume in 2004 (Table 1).
    Open access groundfish fisheries do not have Federal permits, and 
many do not have State permits, which makes it difficult for NMFS to 
identify a population of vessels to be sampled. As discussed above, 
this inability to identify the pool of possible open access fishery 
participants spurred the Council to put a high priority on permitting 
the fishery as a bycatch accounting measure for its bycatch work plan. 
NMFS works with the States to secure permission to place Federal 
observers on vessels participating in State-managed fisheries that take 
groundfish incidentally and to make progress toward identifying total 
landings by various open access fishery components. This final rule 
includes a provision to authorize NMFS to place its observers on open 
access vessels, which will better facilitate agreements with the 
States, and will give NMFS the authority to better sample vessels in 
the directed open access groundfish fishery.
    The commenters state their belief that a 50-100 percent sampling 
level is needed to track overfished species in the West Coast 
groundfish fishery. However, the level of sampling that is needed to 
achieve precision in documenting relatively rare species depends on 
whether observers are sampling from and measuring total catch or only 
the portion of the catch that is discarded. In the West Coast non-
whiting fishery, landings records are relied upon to document retained 
catch. By concentrating on discarded catch, WCGOP observers are able to 
more thoroughly determine the species and amounts of all fish that are 
discarded. Therefore, even though some species may be infrequently 
encountered, when they are encountered on an observed vessel, there is 
a higher likelihood that

[[Page 66137]]

they will be documented. In other fisheries, like some off Alaska, 
where observers draw small samples of the catch to measure the total 
catch of all species, there is a greater chance that infrequently 
occurring species will be missed. Another potential concern with regard 
to infrequently occurring species is the degree to which all hauls (or 
sets) on observed trips are sampled. WCGOP observers sample nearly 
every haul on all observed trips.
    As described in the response to Comment 5, NMFS used the 2004 
observer data to finalize post-season estimates of 2004 total catch, to 
revise inseason bycatch rate estimates in 2005 and 2006, and to inform 
pre-season bycatch rate projections for the 2007-2008 fisheries. The 
process of using observer data to project bycatch pre-season, and then 
revising bycatch rate estimates inseason once a new year's worth of 
observer data becomes available, can cause fluctuations in fishery 
management. If new observer data are introduced inseason and new 
bycatch rate calculations are different from those made pre-season, the 
fisheries may have to be adjusted to prevent OYs from being exceeded.
    The best empirical evidence of the adequacy of the current bycatch 
reporting methodology is the pattern of fishery management fluctuations 
since NMFS first began using observer data to inform management in 
2003. This shift to using new observer data to help manage the fishery 
caused some fluctuations in fishery management, such that severe catch 
and area restrictions were needed to constrain catch in the last 
quarter of 2003 (68 FR 60865, October 24, 2003.) The 2004 fishing year 
began with the fishery modeled for bycatch using that first year's 
worth of observer data, with further observer data supplementing the 
model mid-year. However, NMFS still did not have enough observer data 
years pre-season to prevent year-end fishery closures in reaction to 
observer data received inseason. The 2004 fishery ended with nearshore 
trawl closures to protect canary rockfish and a petrale sole fishery 
elimination to protect darkblotched rockfish (69 FR 59816, October 6, 
2004.)
    For the 2005 fishery, the design of which was informed by two 
years' worth of observer data and two years experience working with 
that data, the Council and NMFS again implemented a seasonally-varied 
combination of RCAs and trip limits (69 FR 77012, December 23, 2004.) 
By the end of 2005, NMFS again had to restrict the trawl fishery to 
constrain bycatch, but there was an important difference in 2005 from 
prior years: In 2003 and 2004, year-end restrictions were needed 
because observer data had showed higher than previously-predicted 
bycatch rates; in 2005, year-end restrictions were needed because the 
target species were being caught at a faster-than-predicted rate, so 
the fisheries were constrained to keep both target species and bycatch 
species within their OYs (70 FR 58066, October 5, 2005; 70 FR 72385, 
December 5, 2005.)
    The 2006 fishery has been the second year in a two-year management 
cycle. The Council and NMFS took action in December 2005 (70 FR 72385) 
and February 2006 to modify the 2006 limits and area closures with best 
available data from 2005 and prior years (71 FR 8489, February 17, 
2006.) As of the Council's September 2006 meeting, total catch from the 
2006 trawl fishery was below pre-season predicted levels for both 
targeted and bycatch species. NMFS was able to modestly increase 
previously set trip limits for petrale sole and sablefish for the 
November-December period to allow the fisheries access to OYs for those 
target species without exceeding overfished species OYs (71 FR 58289, 
October 3, 2006.) As discussed in the preamble to the October inseason 
action, the Council and NMFS reduced the whiting fishery's canary 
rockfish bycatch limit in order to accommodate the higher-than-expected 
canary rockfish research catch.
    Few statistical sampling programs are subject to the immediate real 
world testing given to fisheries observer data used in fishery 
management. Instead of waiting for several years' worth of observer 
data before using the data to inform management, the agency placed a 
priority on beginning the use of observer information for more informed 
management on bycatch minimization as soon as possible. Each year that 
NMFS collects observer data, the agency's confidence in the statistical 
information about intra-annual variability in bycatch rates improves. 
This increasing confidence in observer data allows the agency to better 
predict how the fishery and fish stocks will behave in different 
seasons within the fishing year. Over time, NMFS expects that a longer 
time series of data will illustrate inter-annual variability of bycatch 
rates in response to changing environmental conditions. Over the life 
of the observer program, observer coverage in the trawl fleet has been 
in the 20-40 percent range, with many thousands of fishing trips 
observed. It is true that a greater percentage coverage would have 
provided NMFS with more vessel-specific data points, but such coverage 
would not have created a faster solution to the specific challenge of 
West Coast groundfish management--which is to project fishing 
activities in a multi-species fishery with seasonal variability in 
target and bycatch species migrations, so that time- and area-
appropriate bycatch minimization measures may be applied when and where 
they will have their greatest positive benefits to the resource. 
Observer programs must be designed for the species managed, for the 
fishing vessels observed, and to support a specific management system. 
NMFS's data collection and analysis methods have proven their adequacy 
for management in the rigorous test of inseason management.
    Comment 14: Bycatch reduction should apply to all species, not just 
overfished and protected ones. The Four Organizations believe that the 
proposed rule fails to implement all practicable bycatch minimization 
measures for non-overfished species. The preamble to NMFS's National 
Standard Guidelines acknowledges that ``[t]he definition of `fish' in 
the Magnuson-Stevens Act includes finfish, shellfish, and invertebrate 
species, and all other forms of marine animal and plant life except 
marine mammals and birds; by extension, bycatch applies to these forms 
of marine life.'' 63 FR 24212, at 24224 (May 1, 1998). The proposed 
rule to implement Amendment 18 incorporates depth-based management 
measures, particularly the setting of closed areas as a tool to 
minimize bycatch of overfished species, prevent overfishing of any 
groundfish species, and minimize the incidental catch of prohibited and 
protected species. Area closures are an important tool that has likely 
reduced bycatch in Pacific groundfish fisheries and their use should be 
continued to minimize the bycatch of all marine life. The Four 
Organizations are interested in whether the Council currently uses the 
habitat suitability data from the essential fish habitat EIS and 
Amendment 19 in order to calibrate spatial and/or temporal closures to 
maximize the protection of overfished species, precautionary zone 
species, and other managed species, as well as benthic invertebrates 
like corals.
    Response: As discussed above in the response to Comment 5, NMFS 
places its highest bycatch minimization priority on constraining the 
incidental catch of overfished groundfish species. However, many of the 
bycatch reduction measures detailed in the response to Comment 3 
benefit species other than overfished species. For example, the RCAs 
prevent catch of many continental shelf species, not just the 
overfished

[[Page 66138]]

continental shelf species. In 2005, the fisheries took approximately 60 
mt of the 958 mt OY for minor shelf rockfish, and approximately 891 mt 
of the 3,871 mt OY for yellowtail rockfish (per Pacific Fisheries 
Information Network, see: http://www.psmfc.org/pacfin/ber_index.html.) 
Management measures for 2005, in response to information on shortspine 
thornyhead overfishing in 2003, resulted in underharvests (OYs not 
achieved) of shortspine thornyhead and co-occurring species longspine 
thornyhead, Dover sole, and sablefish. And, as acknowledged by The Four 
Organizations, Amendment 18 and this final rule expand the use of area 
closures so that they may be used to prevent overfishing of groundfish 
species not managed with rebuilding plans, and to protect prohibited 
species, among other uses.
    The Four Organizations also refer to ``habitat suitability data'' 
in this comment. Amendment 19 to the FMP, which NMFS approved on March 
8, 2006, addressed groundfish EFH. In developing Amendment 19, the 
Council considered developing what they called ``habitat suitability 
probability values'' (HSP values) for groundfish species. These HSP 
values were intended to illustrate links between particular groundfish 
species and their particular habitats. The intent of developing these 
species-specific values was to look, in aggregate, at where all of the 
groundfish species managed under the FMP are found in their habitats at 
their different life stages. The Council and its Scientific and 
Statistical Committee (SSC) found, however, that there were 
insufficient data on all groundfish species and all of their life 
stages to set life stage or species-specific HSP values. Amendment 19 
ultimately looked at aggregated information on all groundfish to 
delineate a collective EFH for all groundfish species, rather than 
setting species-specific EFHs. HSP values and the fathom depth contours 
that inform RCA designation use some common data. However, given the 
SSC's review of the HSP value system, NMFS is not comfortable using HSP 
values to define closures to minimize bycatch of overfished species at 
this time.
    The Four Organizations also mention benthic invertebrates, such as 
coral. The EFH EIS describes the habitats of structure-forming benthic 
invertebrates, where known. Structure-forming benthic invertebrates 
occur both within and outside of the 51 EFH Conservation Areas, and 
both within and outside of the Rockfish Conservation Areas.
    Comment 15: The proposed rule explains that the use of vessel 
monitoring systems (VMS) is an important component to enforcing the 
``wide variety of marine closed areas'' that are themselves important 
bycatch minimization measures (71 FR 36506, at 36511.) Amendment 18 
would authorize the use of VMS in the FMP, but not require it. Instead, 
the Council plans on issuing a proposed rule sometime in ``summer 
2006'' to mandate the use of VMS within the open-access fishery. The 
Four Organizations wish to know why this requires a separate process? 
If VMS is a practicable bycatch minimization measure, or, in the least, 
supports the implementation of other bycatch measures, NMFS should 
include the requirement to use VMS in the FMP itself and should not 
wait to do so.
    Response: Groundfish limited entry vessels, which make the majority 
(over 90 percent) of commercial groundfish landings, have been required 
to carry and use VMS units since January 1, 2004 (68 FR 62374, November 
4, 2003.) The Council had recommended this initial coverage in the 
limited entry fishery with the expectation that coverage requirements 
would be expanded to the open access fishery. The bycatch mitigation 
EIS was a program-level EIS, assessing broad-scale programs for the 
future of groundfish bycatch minimization. The Council evaluated 
alternatives for requiring the use of VMS via a separate National 
Environmental Policy Act process, with an Environmental Assessment 
specific to the purpose and need for that action. The separate 
processes were needed to ensure that the specific analysis of a 
requirement for open access vessels to carry VMS did not get lost in 
the midst of the more broad-scale bycatch EIS. NMFS intends to publish 
a proposed rule to implement VMS in the open access fisheries as soon 
as possible.

Changes From the Proposed Rule

    NMFS made changes to regulatory language in 50 CFR 660.314 in order 
to clarify regulatory text. These changes do not alter the effects of 
that text, or the persons or organizations to which they apply. NMFS 
also added changes to regulatory language at 50 CFR 660.306 and 660.370 
in accordance with a comment received from Washington Department of 
Fish and Wildlife, as detailed above in the response to Comment 1.

Classification

    The Administrator, Northwest Region, NMFS, has determined that 
Amendment 18 and this final rule are necessary for the conservation and 
management of the Pacific Coast groundfish fishery and that they are 
consistent with the Magnuson-Stevens Act and other applicable laws.
    NMFS prepared an FEIS in support of this action. The FEIS was filed 
with the Environmental Protection Agency on September 17, 2004. A 
notice of availability for this FEIS was published on September 24, 
2004 (69 FR 57277). In approving Amendment 18, on September 6, 2006, 
NMFS issued a ROD identifying the selected alternative. A copy of the 
ROD is available from NMFS (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 the FRFA is 
available from NMFS (see ADDRESSES) and a summary of the FRFA, per the 
requirements of 5 U.S.C. 604(a), follows: Amendment 18 is intended to 
respond to court orders in Pacific Marine Conservation Council v. 
Evans, 200 F.Supp.2d 1194 (N.D. Calif. 2002) by bringing the Pacific 
Fishery Management Council's bycatch mitigation program into the FMP. 
During the comment period for the proposed rule, NMFS received two 
letters of comment, but neither of these letters addressed the IRFA, 
although one letter directly or indirectly addressed the economic 
effects of the rule, as discussed above in the responses to Comments 6-
9. Approximately 1,511 vessels participated in the West Coast 
commercial groundfish fisheries in 2003. Of those, about 498 vessels 
were registered to limited entry permits issued for either trawl, 
longline, or pot gear. All but 10-20 of the 1,511 vessels participating 
in the groundfish fisheries are considered small businesses by the 
Small Business Administration. 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. Although some 
charter businesses, particularly those in or near large California 
cities, may not be small businesses, all are assumed to be small 
businesses for purposes of this discussion.
    This action is not expected to have significant impacts on small 
entities. The alternatives considered for this action are detailed in 
the proposed rule to implement Amendment 18. The Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) on

[[Page 66139]]

``An Observer Program for Catcher Vessels in the Pacific Coast 
Groundfish Fishery'' analyzed the effects of implementing an observer 
program in the West Coast groundfish fishery on the environment, 
economy, and small businesses. A description of the costs associated 
with compliance of the proposed rules with regard to Federal observer 
regulations was summarized in that document. The requirements that (1) 
Groundfish fishery management measures take into account the co-
occurrence ratios of overfished species with more abundant target 
stocks; (2) the allowance of the use of depth-based closed areas a 
routine management measure for preventing the overfishing of any 
groundfish species by minimizing the direct or incidental catch of that 
species; and (3) the allowance of the use of depth-based closed areas 
as a routine management measure for minimizing the bycatch of any 
prohibited or protected species taken incidentally in the groundfish 
fishery do not increase the costs associated with reporting, record-
keeping, or other compliance requirements directly. There are no 
recordkeeping, reporting, or other compliance issues forthcoming from 
the proposed rule.
    NMFS issued Biological Opinions under the Endangered Species Act 
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999, pertaining to the 
effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon 
(Puget Sound, Snake River spring/summer, Snake River fall, upper 
Columbia River spring, lower Columbia River, upper Willamette River, 
Sacramento River winter, Central Valley spring, California coastal), 
coho salmon (Central California coastal, southern Oregon/northern 
California coastal), chum salmon (Hood Canal summer, Columbia River), 
sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle 
and lower Columbia River, Snake River Basin, upper Willamette River, 
central California coast, California Central Valley, south/central 
California, northern California, southern California). These biological 
opinions have concluded that implementation of the FMP for the Pacific 
Coast groundfish fishery was not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    NMFS reinitiated a formal ESA section 7 consultation under the ESA 
in 2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999 Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000 fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to complete an 
analysis of salmon take in the bottom trawl fishery.
    NMFS prepared a Supplemental Biological Opinion dated March 11, 
2006, which addressed salmon take in both the Pacific whiting midwater 
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental 
Biological Opinion, NMFS concluded that catch rates of salmon in the 
2005 whiting fishery were consistent with expectations considered 
during prior consultations. Chinook bycatch has averaged about 7,300 
over the last 15 years and has only occasionally exceeded the 
reinitiation trigger of 11,000. Since 1999, annual Chinook bycatch has 
averaged about 8,450. The Chinook ESUs most likely affected by the 
whiting fishery has generally improved in status since the 1999 section 
7 consultation. Although these species remain at risk, as indicated by 
their ESA listing, NMFS concluded that the higher observed bycatch in 
2005 does not require a reconsideration of its prior ``no jeopardy'' 
conclusion with respect to the fishery. For the groundfish bottom trawl 
fishery, NMFS concluded that incidental take in the groundfish 
fisheries is within the overall limits articulated in the Incidental 
Take Statement of the 1999 Biological Opinion. The groundfish bottom 
trawl limit from that opinion was 9,000 fish annually. NMFS will 
continue to monitor and collect data to analyze take levels. NMFS also 
reaffirmed its prior determination that implementation of the 
Groundfish FMP is not likely to jeopardize the continued existence of 
any of the affected ESUs.
    Lower Columbia River coho (70 FR 37160, June 28, 2005) and the 
Southern Distinct Population Segment (DPS) of green sturgeon (71 FR 
17757, April 7, 2006) were recently listed as threatened under the ESA. 
As a consequence, NMFS has reinitiated its Section 7 consultation on 
the PFMC's Groundfish FMP. After reviewing the available information, 
NMFS concluded that, in keeping with Section 7(a)(2) of the ESA, 
allowing the fishery to continue under Amendment 18 to the FMP would 
not result in any irreversible or irretrievable commitment of resources 
that would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.
    Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the 
voting members of the Pacific Council must be a representative of an 
Indian tribe with federally recognized fishing rights from the area of 
the Council's jurisdiction. In accordance with E.O. 13175, this rule 
was developed after meaningful consultation and collaboration with the 
tribal representative on the Pacific Council and tribal officials from 
the tribes affected by this action.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: November 6, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.306, paragraph (a)(7) is revised to read as follows:


Sec.  660.306  Prohibitions.

* * * * *
    (a) * * *
    (7) Fail to sort, prior to the first weighing after offloading, 
those groundfish species or species groups for which there is a trip 
limit, size limit, scientific sorting designation, quota, harvest 
guideline, or OY, if the vessel fished or landed in an area during a 
time when such trip limit, size limit, scientific sorting designation, 
quota, harvest guideline, or OY applied.
* * * * *

0
3. In Sec.  660.314, paragraphs (c)(2), and (f)(1)(v)(B) are revised to 
read as follows:


Sec.  660.314  Groundfish observer program.

* * * * *
    (c) * * *
    (2) Catcher vessels. When NMFS notifies the owner, operator, permit 
holder, or the manager of a catcher vessel of any requirement to carry 
an observer, the catcher vessel may not be used to fish for groundfish 
without carrying an observer.
    (i) For the purposes of this section, the term ``catcher vessel'' 
includes all of the following vessels (except vessels described in 
paragraphs (c)(1) and (c)(3) of this section):

[[Page 66140]]

    (A) Any vessel registered for use with a Pacific Coast groundfish 
limited entry permit that fishes off the States of Washington, Oregon, 
or California seaward of the baseline from which the territorial sea of 
the United States is measured out to the seaward edge of the EEZ (i.e., 
0-200 nm offshore).
    (B) Any vessel other than a vessel described in paragraph 
(c)(2)(i)(A) of this section that is used to take and retain, possess, 
or land groundfish in or from the EEZ.
    (C) Any vessel that is required to take a Federal observer by the 
applicable State law.
    (ii) Notice of departure--Basic rule. At least 24 hours (but not 
more than 36 hours) before departing on a fishing trip, a vessel that 
has been notified by NMFS that it is required to carry an observer, or 
that is operating in an active sampling unit, must notify NMFS (or its 
designated agent) of the vessel's intended time of departure. Notice 
will be given in a form to be specified by NMFS.
    (A) Optional notice--Weather delays. A vessel that anticipates a 
delayed departure due to weather or sea conditions may advise NMFS of 
the anticipated delay when providing the basic notice described in 
paragraph (c)(2)(ii) of this section. If departure is delayed beyond 36 
hours from the time the original notice is given, the vessel must 
provide an additional notice of departure not less than 4 hours prior 
to departure, in order to enable NMFS to place an observer.
    (B) Optional notice--Back-to-back fishing trips. A vessel that 
intends to make back-to-back fishing trips (i.e., trips with less than 
24 hours between offloading from one trip and beginning another), may 
provide the basic notice described in paragraph (c)(2)(ii)) of this 
section for both trips, prior to making the first trip. A vessel that 
has given such notice is not required to give additional notice of the 
second trip.
    (iii) Cease fishing report. Within 24 hours of ceasing the taking 
and retaining of groundfish, vessel owners, operators, or managers must 
notify NMFS or its designated agent that fishing has ceased. This 
requirement applies to any vessel that is required to carry an 
observer, or that is operating in a segment of the fleet that NMFS has 
identified as an active sampling unit.
* * * * *
    (f) * * *
    (1) * * *
    (v) * * *
    (B) Annual general endorsements. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
first deployment within any calendar year subsequent to a year in which 
a certification training endorsement is obtained. To obtain an annual 
general endorsement, an observer must successfully complete the annual 
briefing, as specified by the Observer Program. All briefing 
attendance, performance, and conduct standards required by the Observer 
Program must be met.
* * * * *

0
4. In Sec.  660.370, paragraphs (b), (c)(3), and (h)(6) introductory 
text are revised to read as follows:


Sec.  660.370  Specifications and management measures.

* * * * *
    (b) Biennial actions. The Pacific Coast Groundfish fishery is 
managed on a biennial, calendar year basis. Harvest specifications and 
management measures will be announced biennially, with the harvest 
specifications for each species or species group set for two sequential 
calendar years. In general, management measures are designed to 
achieve, but not exceed, the specifications, particularly optimum 
yields (harvest guidelines and quotas), commercial harvest guidelines 
and quotas, limited entry and open access allocations, or other 
approved fishery allocations, and to protect overfished and depleted 
stocks. Management measures will be designed to take into account the 
co-occurrence ratios of target species with overfished species, and 
will select measures that will minimize bycatch to the extent 
practicable.
    (c) * * *
    (3) All fisheries, all gear types, depth-based management measures. 
Depth-based management measures, particularly the setting of closed 
areas known as Groundfish Conservation Areas, may be implemented in any 
fishery that takes groundfish directly or incidentally. Depth-based 
management measures are set using specific boundary lines that 
approximate depth contours with latitude/longitude waypoints found at 
Sec.  660.390-.394. Depth-based management measures and the setting of 
closed areas may be used: to protect and rebuild overfished stocks, to 
prevent the overfishing of any groundfish species by minimizing the 
direct or incidental catch of that species, to minimize the incidental 
harvest of any protected or prohibited species taken in the groundfish 
fishery, to extend the fishing season; for the commercial fisheries, to 
minimize disruption of traditional fishing and marketing patterns; for 
the recreational fisheries, to spread the available catch over a large 
number of anglers; to discourage target fishing while allowing small 
incidental catches to be landed; and to allow small fisheries to 
operate outside the normal season.
* * * * *
    (h) * * *
    (6) Sorting. Under Sec.  660.306(a)(7), it is unlawful for any 
person to ``fail to sort, prior to the first weighing after offloading, 
those groundfish species or species groups for which there is a trip 
limit, size limit, scientific sorting designation, quota, harvest 
guideline, or OY, if the vessel fished or landed in an area during a 
time when such trip limit, size limit, scientific sorting designation, 
quota, harvest guideline, OY applied.'' The States of Washington, 
Oregon, and California may also require that vessels record their 
landings as sorted on their State fish tickets. This provision applies 
to both the limited entry and open access fisheries. The following 
species must be sorted in 2005 and 2006:
* * * * *

0
5. In Sec.  660.373, paragraphs (c)(1), (c)(2), and (d) are revised to 
read as follows:


Sec.  660.373  Pacific whiting (whiting) fishery management.

* * * * *
    (c) * * *
    (1) Klamath River Salmon Conservation Zone. The Klamath River 
Salmon Conservation Zone is an area off the northern California coast 
intended to protect salmon from incidental catch in the whiting 
fishery. The Klamath River Conservation Zone is defined by straight 
lines connecting the following specific latitude and longitude 
coordinates in the order listed:
    (i) 41[deg]38.80' N. lat., 124[deg]07.49' W. long.;
    (ii) 41[deg]38.80' N. lat., 124[deg]23.00' W. long.;
    (iii) 41[deg]26.80' N. lat., 124[deg]19.26' W. long.;
    (iv) 41[deg]26.80' N. lat., 124[deg]03.80' W. long.; and connecting 
back to 41[deg]38.80' N. lat., 124[deg]07.49' W. long.
    (2) Columbia River Salmon Conservation Zone. The Columbia River 
Salmon Conservation Zone is an area off the northern Oregon and 
southern Washington coast intended to protect salmon from incidental 
catch in the whiting fishery. The Columbia River Salmon Conservation 
Zone is defined by straight lines connecting the following specific 
latitude and longitude coordinates in the order listed:
    (i) 46[deg]18.00' N. lat., 124[deg]04.50' W. long.;
    (ii) 46[deg]18.00' N. lat., 124[deg]13.30' W. long.;

[[Page 66141]]

    (iii) 46[deg]11.10' N. lat., 124[deg]11.00' W. long.;
    (iv) 46[deg]13.58' N. lat., 124[deg]01.33' W. long.; and connecting 
back to 46[deg]18.00' N. lat., 124[deg]04.50' W. long.
    (d) Eureka area trip limits. Trip landing or frequency limits may 
be established, modified, or removed under Sec.  660.370 or Sec.  
660.373, specifying the amount of Pacific whiting that may be taken and 
retained, possessed, or landed by a vessel that, at any time during a 
fishing trip, fishes in the Eureka management area (from 43[deg]00.00' 
to 40[deg]30.00' N. lat.) shoreward of a boundary line approximating 
the 100 fm (183 m) depth contour, as defined with latitude/longitude 
coordinates at Sec.  660.393.
* * * * *
 [FR Doc. E6-19106 Filed 11-9-06; 8:45 am]
BILLING CODE 3510-22-P