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

[Federal Register: June 13, 2003 (Volume 68, Number 114)]

[Proposed Rules]

[Page 35354-35359]

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

[DOCID:fr13jn03-33]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 030602142-3142-01; I.D. 051403C]

RIN 0648-AQ68

Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Amendment 17

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 17 to the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 17 would revise the Pacific Fishery Management Council's (Council's) annual groundfish management process so that it would become a biennial process. Amendment 17 is intended to ensure that the specifications and management measures process comports with a Court ruling, to make the Council's development process for specifications and management measures more efficient so that more time is available for other management activities, and to streamline the NMFS regulatory process for implementing the specifications and management measures.

DATES: Comments must be submitted in writing by July 28, 2003.

ADDRESSES: Comments on Amendment 17 or supporting documents should be sent to D. Robert Lohn, Administrator, Northwest Region, NMFS, Sand Point Way NE., BIN C15700, Seattle, WA 98115-0070.

Copies of Amendment 17 and the environmental assessment/ regulatory impact review/initial regulatory flexibility analysis (EA/RIR/IRFA) are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council, 2130 SW Fifth Ave., Suite 224, Portland, OR 97201.

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

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Register's website at: http://www/access/gpo.gov/su_docs/aces140.html.

Background

NMFS is proposing this rule to implement Amendment 17 to the FMP, which would set the Council's groundfish management process and the NMFS implementation process for specifications and management measures for a biennial period. Amendment 17 would also structure Council development of specifications and management measures so that NMFS has adequate time to implement the biennial specifications and management measures through a notice-and-comment rulemaking. The regulations to implement Amendment 17 would primarily revise references in the Federal groundfish regulations at 50 CFR 660.301-360 to the annual specifications and management measures process so that they reflect the new biennial specifications and management measures process. This proposed rule is based on recommendations of the Council, under the authority of the Pacific Coast Groundfish 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 EA/RIR/IRFA prepared by NMFS for Amendment 17.

Since 1990, the Council has set Pacific coast groundfish harvest levels through an annual regulatory process. This annual process establishes harvest ``specifications,'' which are harvest levels or limits such as acceptable biological catches (ABCs), optimum yields (OYs), or allocations for different user groups. Management measures, such as trip limits, closed times and areas, and gear restrictions are also set in the annual regulatory process. Management measures are partnered with the specifications in the annual process because these measures are specifically designed to allow the fisheries to achieve, but not to exceed, harvest levels established in the specifications.

The Council has historically developed its recommendations for the annual specifications and management measures in a two-meeting process (usually its September and November meetings), followed by a NMFS final action effective January 1 and published in the Federal Register. Following publication, this final action was made available for public comment and correction after the effective date of the action. In 2001, NMFS was challenged on this process in Natural Resources Defense Council, Inc. v. Evans and the Court found that the process violated the Administrative Procedure Act requirement for notice and comment.

NMFS responded in both 2002 and 2003 by publishing the specifications and management measures as a proposed rule, followed by a public comment period and a final rule. In neither year was NMFS able to publish the proposed rule, take public comment, and publish the final rule between the Council's final decision and January 1. Thus for both years, the proposed rule had to be accompanied by an emergency rule to implement groundfish management measures for the period between January 1 and the effective date of the final rule, March 1.

During 2002, the Council considered how it might revise its specifications and management measures development process consistent with the court's ruling in order to allow prior public notice and comment on the specifications and management measures regulatory package. In addition to needing to revise the notice and comment procedure associated with the specifications and management measures, the Council wished to take a new look at efficiency in the annual management process. Groundfish management workload levels have grown in recent years, particularly those associated with setting annual harvest levels for both depleted and healthy stocks. Because of the increasing workload associated with developing specifications and management measures, the Council and NMFS have had less time for addressing many other important groundfish fishery management issues.

NMFS has recently asked all of the fishery management councils to consider how they might streamline their processes for developing regulatory recommendations. To meet this agency-wide request, the Council decided that it would consider whether specifications and management measures could be published for multi-year, rather than single year, periods. To initially investigate both expanded public notice and comment for NMFS specifications regulations and multi-year management periods, the Council created the Ad-Hoc Groundfish Multi- Year Management Committee (Committee.) The Committee included representatives from the fishing industry, the conservation community, the states of Washington, Oregon, and California and NMFS.

The Committee held public meetings in Portland, OR over December 13-14, 2001, and over January 31 - February 1, 2002. During those meetings, the Committee discussed the many issues associated with changing the specifications and management measures notice and comment process and with the possibility of making a transition to multi-year management. In its meetings, the Committee developed a suite of options to address its two management challenges in a potential FMP amendment. At its March 2002 meeting, the Council requested that NMFS analyze the Committee's management options as draft Amendment 17 to the FMP. These options were analyzed and made available to the public for broader comment. Amendment 17 and its associated EA/RIR/IRFA were available for public consideration and discussed by the Council at its June and September 2002 meetings. In November 2002, the Council finalized its recommendations on Amendment 17. The Council's recommendation was for a three-meeting Council process for developing specifications and management measures, a notice and comment period for the harvest specifications, and a biennial management period. Amendment 17 is essentially administrative in nature, and is intended to revise Council and NMFS processes associated with the specifications and management measures. Under Amendment 17, the Council will develop its recommendations for specifications and management measures in a three- meeting process, at their November-April-June meetings for implementation the January 1 following their final decision in June. Once a specifications and management measures package were implemented, it would apply for a two-year period. Harvest specifications like acceptable ABCs and OYs would continue to apply for 1-year periods. For each biennial management period, the ABC/OY for a particular species would be set for each of the two years within that period. However, the management measures established during the biennial process will still be adjusted as the season progresses, in order to achieve but not exceed OYs. If Amendment 17 is approved, the first biennial management period implemented by this FMP amendment would be 2005-2006. Thus by example, specifications and management measures for 2005-2006 would be developed by the Council between November 2003 and June 2004, with notice and comment rulemaking occurring between July 2004 and November 2004, and a final rule becoming effective by January 1, 2005.

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NMFS and the states conduct stock assessments on a schedule intended in part to complement the Council's annual specifications and management measures process. Not all groundfish stocks have stock assessments. In general, assessment authors conduct new assessments each year on one-third of those species that have stock assessments. Thus, each assessed species will have a new assessment roughly every three years. Assessment models and results are independently reviewed by the Council's Stock Assessment Review (STAR) panels, which are made up of scientific professionals and reviewers from the Council's groundfish advisory bodies. It is the responsibility of the STAR panels to review draft stock assessment documents and relevant information to determine if they use the best available scientific data effectively to provide a good quality assessment of the condition of the stock. In addition, the STAR panels review the assessment documents to see that they are sufficiently complete and to identify research that may be needed to improve assessments in the future. The STAR process is a key element in an overall process designed to make timely use of new fishery and survey data, to analyze and understand these data as completely as possible, to provide opportunity for public comment, and to assure that the assessment results are as accurate and error-free as possible.

Amendment 17's 2-year management schedule would allow stock assessment authors to revise their assessment schedules such that they deliver assessments on all assessed stocks every other year. New and updated stock assessments would be reviewed through the STAR process prior to the November Council meeting at the start of the Council's management process. In alternate years when stock assessment authors are not delivering assessments to the Council process, they would have time to revise and enhance stock assessment models, as well as to develop new models on habitat and ecosystem functions as they affect groundfish stock status. Under the current process, models and stock assessments are evaluated by the STAR process every year, giving stock assessment authors little time away from the process to consider model refinement.

One of the challenges the Council faced in developing Amendment 17 was how to create a biennial management process that still allowed an annual review of harvest levels against the most recent scientific information. To address this issue, the Council has recommended a process that would take advantage of the initial November specifications development meeting to check current management levels against the most recently available scientific information. For example: The first biennial management cycle would be January 1, 2005, through December 31, 2006, with the second management cycle being January 1, 2007, through December 31, 2008. In 2005, the Council would begin developing specifications and management measures for 2007-2008. The Council would review the new stock assessments intended for the 2007-2008 cycle and check them against the harvest levels they had set for 2006 to ensure that they were adequate to meet rebuilding goals for overfished species and not result in overfishing. The Council will be discussing this process further during 2003 to set parameters for what portions of the specifications and management measures may or may not be revised through this mid-cycle checkpoint process. Depending on the checkpoint process the Council develops, there may be an additional rulemaking associated with Amendment 17.

Revisions to FMP and Federal Regulations Under Amendment 17

Because Amendment 17 deals only with the process by which the Council recommends the specifications and management measures, revisions to the FMP and to Federal regulations are fairly minimal. In the FMP, references to the annual specifications process are revised and the biennial fishing period is defined as being the new time unit for specifications and management measures implementation. Similarly, Federal regulations are proposed to be amended via this rule so that references to the annual management cycle are replaced with references to a biennial management cycle. Amendment 17 does not introduce new regulations or revisions to existing regulations that affect how the groundfish fleets conduct their fishing operations, which is the primary focus of Federal groundfish fishery regulations.

Classification

At this time, NMFS has not determined whether Amendment 17, which this proposed rule would implement, is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. The IRFA is available from NMFS (see ADDRESSES). A summary of the IRFA follows:

A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY and at the beginning of this section of this proposed rule. There are no recordkeeping, reporting, or other compliance issues forthcoming from this proposed rule. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.

A fish-harvesting business is considered a ``small'' business by the Small Business Administration (SBA) if it has annual receipts not in excess of $3.5 million. Approximately 2,000 commercial vessels participate in the West Coast groundfish fisheries. Of those, about 500 vessels are registered to limited entry permits issued for either trawl, longline, or pot gear. About 1,500 vessels land groundfish against open access limits while either directly targeting groundfish or taking groundfish incidentally in fisheries directed at non- groundfish species. All but 10-20 of those vessels are considered small businesses by the SBA. Since this is an administrative action, this proposed rule is not expected to yield disproportionate economic impacts between those small and large entities. In the 2001 recreational fisheries, there were 77 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.

This rule is administrative in nature and is expected to have only a minimal economic impact on small entities. The proposed rule would maximize time for stock assessment scientists, Council staff, and NMFS staff to prepare documentation needed to implement specifications and management measures without disrupting the historic January 1 season start date. Under the proposed measure, vessel operators should be able to take advantage of whichever seasonal markets best fit their needs. Small vessel operators should not be forced to fish during inclement weather because of concerns about fishery closures during spring and summer months. Vessel operators afforded the privilege of fishing for both Dungeness crab and groundfish, or groundfish and shrimp, should be able to time their fishing trips

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based on the migratory patterns of their target species and the needs of their own marketing strategies and those of their associated processors. While implementing multi-year groundfish management will not alleviate all season-related management problems for fisheries participants, it should be a positive step toward improving the stability and certainty of seasonal groundfish allocations for participating harvesters. The improved science and management made possible with multi-year planning will help mitigate the closure cycle by stabilizing groundfish allocations and landings throughout the season.

The Council considered 4 alternatives to the proposed measure including a status quo alternative. All alternatives, with the exception of the status quo, would implement biennial specifications. Two of these alternatives considered a March 1 start date with different Council meeting schedules, and one alternative considered a May 1 start date. Given closure trends under the status quo, a March 1 start date would likely result in early allocation attainment and closures during December-February. The negative effects of this closed period would primarily be felt by vessels and processors that rely on the mid-winter flatfish fishery. Many West Coast flatfish species aggregate more closely during the winter months, lowering the bycatch rates of non-flatfish species in flatfish-directed fisheries. As with the status quo, recreational fishing tends to be slow during the winter months. Given closure trends under the status quo, a May 1 start date would likely result in early allocation attainment and closures during February-April period. This schedule would keep the fisheries open through stronger flatfish months and allow participants to switch between flatfish and Dungeness crab at will. A February-April groundfish closure could also have the negative effect of a very lean 3-month period between Dungeness crab fishing/processing season and the shrimp, salmon and albacore seasons. For some of the small boat fishers, this alternative could also mean a lack of fishing opportunity in their traditional start-up fishing months. Early spring recreational fishing opportunities could also be curtailed under this schedule.

The economic effects of changing the fishing year start date vary with each option and vary by which fishery sectors they affect. In general, the difference between the economic effects of a January 1 start date and a March 1 start date are neutral. A May 1 start date, however, would notably shift fishing effort and could result in small businesses having to reconsider their business practices and reschedule their fishing operations.

The Council will retain a one-year specification of ABC and OY. This represents no change and will have no economic impact to vessels affected by the proposed rule. The Council also considered a two-year specification period. However, since early attainment of OY could lengthen closure periods under a two-year specification of these targets, this alternative would be expected to have a potentially adverse economic impact on vessel profitability. With two-year OYs, management measures would need to be more conservative at the start of the two-year fishing period to hedge against early closures during the second year in the fishing period. The Council also considered a mixture of one-year and two-year specifications for different groundfish species. This approach could also have a potentially adverse economic impact on vessel profitability for vessels fishing under two- year specifications for the reasons listed above.

List of Subjects in 50 CFR Part 660

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

Dated: June 9, 2003. Rebecca Lent, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

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

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

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

2. In Sec. 660.302, a new definition for ``Biennial fishing period'' is added and the definitions for ``Fishing year,'' and ``Reserve,'' are revised to read as follows:

   Sec. 660.302 Definitions.

   * * * * *

   Biennial fishing period means a 24-month period beginning at 0001 local time on January 1 and ending at 2400 local time on December 31 of the subsequent year. * * * * *

   Fishing year is the year beginning at 0001 local time on January 1 and ending at 2400 local time on December 31 of the same year. There are two fishing years in each biennial fishing period. * * * * *

   Reserve means a portion of the harvest guideline or quota set aside at the beginning of the fishing year or biennial fishing period to allow for uncertainties in preseason estimates. * * * * *

3. In Sec. 660.321, paragraphs (a) through (c) are revised to read as follows:

   Sec. 660.321 Specifications and management measures.

   (a) General. NMFS will establish and adjust specifications and management measures biennially or annually and during the fishing year. Management of the Pacific Coast groundfish fishery will be conducted consistent with the standards and procedures in the PCGFMP and other applicable law. The PCGFMP is available from the Regional Administrator or the Council.

   (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.

   (c) Routine management measures. Management measures designated ``routine'' at Sec. 660.323(b) may be adjusted during the fishing year after recommendation from the Council, approval by NMFS, and publication in the Federal Register. * * * * *

4. In Sec. 660.323, paragraphs (a)(2)(ii)(C)(1), (a)(3)(i)(A)(1), (a)(3)(vi) introductory text, paragraph (b) introductory text, and paragraphs (b)(1)(i) introductory text and (b)(1)(ii) are revised to read as follows:

   Sec. 660.323 Catch restrictions.

   (a)* * *

   (2)* * *

   (ii)* * *

   (C) Cumulative limits. (1) A vessel participating in the primary season will be constrained by the sablefish cumulative limit associated with each of the permits registered for use with that vessel. The Regional Administrator will

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   biennially or annually calculate the size of the cumulative trip limit for each of the three tiers associated with the sablefish endorsement such that the ratio of limits between the tiers is approximately 1:1.75:3.85 for Tier 3:Tier 2:Tier 1, respectively. The size of the cumulative trip limits will vary depending on the amount of sablefish available for the primary fishery and on estimated discard mortality rates within the fishery. The size of the cumulative trip limits for the three tiers in the primary fishery will be announced in the Federal Register.

   * * * * *

   (3)* * *

   (i)* * *

   (A)* * *

   (1) Procedures. The primary seasons for the whiting fishery north of 40[deg]30' N. lat. generally will be established according to the procedures of the PCGFMP for developing and implementing harvest specifications and apportionments. The season opening dates remain in effect unless changed, generally with the harvest specifications and management measures. * * * * *

   (vi) Bycatch reduction and full utilization program for at-sea processors (optional). If a catcher/processor or mothership in the whiting fishery carries more than one NMFS-approved observer for at least 90 percent of the fishing days during a cumulative trip limit period, then groundfish trip limits may be exceeded without penalty for that cumulative trip limit period, if the conditions in paragraph (a)(3)(vi)(A) of this section are met. For purposes of this program, ``fishing day'' means a 24-hour period, from 0001 hours through 2400 hours, local time, in which fishing gear is retrieved or catch is received by the vessel, and will be determined from the vessel's observer data, if available. Changes to the number of observers required for a vessel to participate in the program will be announced prior to the start of the fishery, generally concurrent with the harvest specifications and management measures. Groundfish consumed on board the vessel must be within any applicable trip limit and recorded as retained catch in any applicable logbook or report. [Note: For a mothership, non-whiting groundfish landings are limited by the cumulative landings limits of the catcher vessels delivering to that mothership.] * * * * *

   (b) Routine management measures. In addition to the catch restrictions in this section, other catch restrictions that are likely to be adjusted on a biennial or more frequent basis may be imposed and announced by a single notification in the Federal Register if good cause exists under the APA to waive notice and comment, and if they have been designated as routine through the two-meeting process described in the PCGFMP. The following catch restrictions have been designated as routine:

   (1) Commercial limited entry and open access fisheries--(i) Trip landing and frequency limits, size limits, all gear. Trip landing and frequency limits have been designated as routine for the following species or species groups: widow rockfish, canary rockfish, yellowtail rockfish, Pacific ocean perch, yelloweye rockfish, splitnose rockfish, bocaccio, cowcod, minor nearshore rockfish or shallow and deeper minor nearshore rockfish, shelf or minor shelf rockfish, and minor slope rockfish; DTS complex which is composed of Dover sole, sablefish, shortspine thornyheads, and longspine thornyheads; petrale sole, rex sole, arrowtooth flounder, Pacific sanddabs, and the flatfish complex, which is composed of those species plus any other flatfish species listed at Sec. 660.302; Pacific whiting; lingcod; and ``other fish'' as a complex consisting of all groundfish species listed at Sec. 660.302 and not otherwise listed as a distinct species or species group. Size limits have been designated as routine for sablefish and lingcod. Trip landing and frequency limits and size limits for species with those limits designated as routine may be imposed or adjusted on a biennial or more frequent basis for the purpose of keeping landings within the harvest levels announced by NMFS, and for the other purposes given in paragraph (b)(1)(i)(A) and (B) of this section. * * * * *

   (ii) Differential trip landing and frequency limits based on gear type, closed seasons. Trip landing and frequency limits that differ by gear type and closed seasons may be imposed or adjusted on a biennial or more frequent basis for the purpose of rebuilding and protecting overfished or depleted stocks. * * * * *

5. In Sec. 660.324, paragraphs (d) and (j) are revised to read as follows:

   Sec. 660.324 Pacific Coast treaty Indian fisheries.

   * * * * *

   (d) Procedures. The rights referred to in paragraph (a) of this section will be implemented by the Secretary, after consideration of the tribal request, the recommendation of the Council, and the comments of the public. The rights will be implemented either through an allocation of fish that will be managed by the tribes, or through regulations in this section that will apply specifically to the tribal fisheries. An allocation or a regulation specific to the tribes shall be initiated by a written request from a Pacific Coast treaty Indian tribe to the Regional Administrator, prior to the first Council meeting in which biennial harvest specifications and management measures are discussed for an upcoming biennial management period. The Secretary generally will announce the annual tribal allocations at the same time as the announcement of the harvest specifications. The Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Accordingly, the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus. * * * * *

   (j) Black rockfish. Harvest guidelines for commercial harvests of black rockfish by members of the Pacific Coast Indian tribes using hook and line gear will be established biennially for two subsequent one year periods for the areas between the U.S.-Canadian border and Cape Alava (48[deg]09'30'' N. lat.) and between Destruction Island (47[deg]40'00'' N. lat.) and Leadbetter Point (46[deg]38'10' N. lat.), in accordance with the procedures for implementing harvest specifications and management measures. Pacific Coast treaty Indians fishing for black rockfish in these areas under these harvest guidelines are subject to the provisions in this section, and not to the restrictions in other sections of this part. * * * * *

6. In Sec. 660.332, paragraphs (a), (b)(3), and (e) are revised to read as follows:

   Sec. 660.332 Allocations.

   (a) General. The commercial portion of the Pacific Coast groundfish fishery, excluding the treaty Indian fishery, is divided into limited entry and open access fisheries. Separate allocations for the limited entry and open access fisheries will be established biennially or annually for certain species and/or areas using the procedures described in this subpart or the PCGFMP. * * * * *

   (b) * * *

   (3) The guidelines in this paragraph (b)(3) apply to recalculation of the open access allocation percentage. Any recalculated allocation percentage will be used in calculating the following biennial fishing period's open access allocation. * * * * *

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   (e) Treaty Indian fisheries. Certain amounts of groundfish may be set aside biennially or annually for tribal fisheries prior to dividing the balance of the allowable catch between the limited entry and open access fisheries. Tribal fisheries conducted under a set-aside are not subject to the regulations governing limited entry and open access fisheries. * * * * *

7. In Sec. 660.333, paragraph (c)(2) is revised to read as follows:

   Sec. 660.333 Limited entry fishery eligibility and registration.

   * * * * *

   (c) * * *

   (2) The major limited entry cumulative limit periods will be announced in the Federal Register with the harvest specifications and management measures, and with routine management measures when the cumulative limit periods are changed. * * * * *

8. In Sec. 660.350, paragraph (a)(6) is revised to read as follows:

   Sec. 660.350 Compensation with fish for collecting resource information--exempted fishing permits off Washington, Oregon, and California.

   (a) * * *

   (6) Accounting for the compensation catch. As part of the harvest specifications process (Sec. 660.321), NMFS will advise the Council of the amount of fish authorized to be retained under a compensation EFP, which then will be deducted from the next harvest specifications (ABCs) set by the Council. Fish authorized in an EFP too late in the year to be deducted from the following year's ABCs will be accounted for in the next management cycle practicable. * * * * *

   [FR Doc. 03-15030 Filed 6-12-03; 8:45 am]

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