Fishery conservation and management: West Coast States and Western Pacific fisheries— Pacific Coast groundfish,

[Federal Register: June 27, 2006 (Volume 71, Number 123)]

[Proposed Rules]

[Page 36506-36515]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27jn06-13]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.060609159-01; 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: Proposed rule; request for comments.

SUMMARY: NMFS issues this proposed rule to implement Amendment 18 to the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 18 is intended to respond to a court order by setting the Pacific Fishery Management Council's (Council's) bycatch minimization policies and requirements into the FMP. This rule would implement new standardized bycatch reporting methodology and bycatch minimization requirements for groundfish fisheries off the U.S. West Coast.

DATES: Comments on this proposed rule must be received on or before August 8, 2006.

ADDRESSES: Amendment 18 is available on the Council's website at: http/ /http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery Management/

NEPA-Documents/Progammatic-EIS.cfm.

You may submit comments, identified by I.D. number 060606A by any of the following methods:

E-mail: Amendment18.nwr@noaa.gov. Include the I.D. number 060606A in the subject line of the message.

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Fax: 206-526-6736, Attn: Yvonne deReynier.

Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, Attn: Yvonne deReynier, 7600 Sand Point Way NE, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier (Northwest Region, NMFS), phone: 206-526-6140; fax: 206-526-6736; and e-mail: yvonne.dereynier@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the internet at the website of the Office of the Federal Register: http://www.gpoaccess.gov/fr/index.html.

NMFS is proposing this rule to implement Amendment 18 to the FMP, which is intended to set the Council's bycatch minimization polices and requirements into the FMP. 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) [hereinafter PMCC v. Evans]. The regulations to implement Amendment 18 would: require that groundfish fishery management measures take into account the co-

[[Page 36507]]

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; and, 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). This proposed rule is based on the recommendations of the Council, under the authority of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson- Stevens Act). The background and rationale for the Council's recommendations are summarized below. Further detail appears in the Pacific Coast Groundfish Fishery Bycatch Mitigation EIS (69 FR 57277, September 24, 2004; available online at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/NEPA-Documents/Programmatic-EIS.cfm ).

Background

The Magnuson-Stevens Act requires that fishery management plans ``establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority - (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided.'' 16 U.S.C. 1853(a)(11). The Magnuson-Stevens Act defines the term bycatch to mean ``fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program.'' 16 U.S.C. 1802(2).

Amendment 13 to the FMP, approved in December 2000, was intended to comply with Magnuson-Stevens Act requirements on bycatch monitoring and minimization. However, in PMCC v. Evans, the court found that Amendment 13 did not adequately address the required provisions of the Magnuson- Stevens Act and the National Environmental Policy Act (NEPA). Specifically, the court found that: (1) Amendment 13 failed to establish adequate bycatch assessment methodology; (2) NMFS did not comply with its duty under the Magnuson-Stevens Act to minimize bycatch and bycatch mortality; (3) NMFS did not take a ``hard look'' at the environmental consequences of Amendment 13, in violation of NEPA; and (4) the Environmental Assessment did not consider a reasonable range of alternatives and environmental consequences, in violation of NEPA.

Following the court's decision and remand order in PMCC v. Evans, NMFS completed a final EIS on a bycatch mitigation program for the West Coast groundfish fisheries (69 FR 57277, September 24, 2004.) The preferred alternative in that final EIS articulates the Council's bycatch minimization policies and requirements. Once the bycatch minimization program EIS was complete, the Council and NMFS began drafting Amendment 18 to bring the preferred alternative from the EIS into the groundfish FMP. Amendment 18 to the FMP articulates the Council's bycatch minimization approach for the groundfish fisheries and provides comprehensive direction for current and future bycatch minimization efforts within Pacific Coast groundfish management. Amendment 18 largely re-wrote Chapter 6 of the FMP, ``Management Measures,'' to focus on bycatch monitoring and minimization.

Groundfish FMP prior to Amendment 18

Several FMP amendments and numerous Federal regulations subsequent to Amendment 13 have dealt in some way with bycatch, although none has had bycatch as their only focus. Amendment 14 to the FMP implemented a permit stacking program for the limited entry fixed gear sablefish fishery (66 FR 41152, August 7, 2001.) Amendment 14 reduced vessel participation in the limited entry fixed gear primary sablefish fishery by allowing up to three limited entry permits with sablefish endorsements to be stacked on a single fixed gear vessel. Reducing the number of fishery participants indirectly reduces bycatch by reducing the number of vessels potentially responsible for fishing trips and discard events.

Under Amendment 14, vessel owners with stacked permits are eligible to harvest the tier amounts of sablefish associated with each of the permits registered for use with a vessel (66 FR 41152, August 7, 2001.) Landings limits for species other than sablefish are not stackable; this means that although the tier stacking program maintains a fairly consistent level of sablefish fishing effort, it reduces both the number of fishing vessels and the fishing effort on groundfish species other than sablefish. Amendment 14 also converted the fishery from a brief (