[Federal Register: November 13, 2006 (Volume 71, Number 218)]
[Rules and Regulations]
[Page 66122-66141]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no06-13]
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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:
yvonne.dereynier@noaa.gov.
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://
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.[fxsp0]nwfsc.[fxsp0]noaa.[fxsp0]gov/
research/divisions/fram/observer/datareport/docs/revised--total--fg--
catch-- estimation2004.[fxsp0]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