01-7940. Fisheries Off West Coast States and in the Western Pacific; Coastal Pelagic Species Fishery; Amendment 9

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

NMFS proposes a regulation to implement a portion of Amendment 9 to the Coastal Pelagic Species Fishery Management Plan (FMP), which was submitted by the Pacific Fishery Management Council (Council) for review and approval by the Secretary of Commerce (Secretary), and which was approved on March 22, 2001. Amendment 9 was prepared to provide for the documentation of bycatch in the coastal pelagic species fishery (CPS), to ensure that a standardized reporting methodology to assess the amount and type of bycatch is in place, to propose any necessary conservation and management measures to minimize bycatch, and to ensure that Indian fishing rights will be met according to treaties between the U.S. and specific tribes. This proposed rule would codify the procedures in Amendment 9 designed to ensure that Indian fishing rights will be met according to those treaties. This proposed rule also would codify a provision in the FMP that authorizes the Regional Administrator, Southwest Region, to require observers on fishing vessels for scientific purposes should such observers be necessary. The intent of this proposed rule is to codify provisions in the FMP and in Amendment 9 that are in need of codification.

DATES:

Comments must be received by May 14, 2001.

ADDRESSES:

Copies of Amendment 9, which includes an environmental assessment/regulatory impact review, may be obtained from Donald O. McIssac, Executive Director, Pacific Fishery Management Council, 2130 SW Fifth Avenue, Suite 224, Portland, Oregon, 97201.

FOR FURTHER INFORMATION CONTACT:

James Morgan, Sustainable Fisheries Division, NMFS, at 562-980-4036.

SUPPLEMENTARY INFORMATION:

The Council submitted Amendment 9 for Secretarial review on November 21, 2000. NMFS published a notice of availability for Amendment 9 in the Federal Register on December 21, 2000 (65 FR 80411), announcing a 60-day public comment period, which ended on February 20, 2001. The Secretary approved Amendment 9 on March 22, 2001.

On June 10, 1999, Amendment 8 to the Northern Anchovy Fishery Management Plan was partially approved by the Secretary. The portions of Amendment 8 approved by the Secretary added four species to the plan, implemented limited entry to prevent overcapitalization, and changed the name of the plan to the Coastal Pelagic Species Fishery Management Plan. Other provisions were not approved. The optimum yield (OY) for squid and the bycatch provisions in Amendment 8 were not approved because they did not conform to National Standards 1 and 9, respectively, of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendment 8, contrary to National Standard 9 failed to include a standardized reporting methodology to assess the amount and type of bycatch in the CPS fishery and did not explain whether additional management measures to minimize bycatch and the mortality of unavoidable bycatch were practicable. Also, Amendment 8 failed to provide an estimate of maximum sustainable yield (MSY) for squid, a necessary component to determine OY.

At its meeting in June 1999, the Council directed its Coastal Pelagic Species Management Team (CPSMT) to recommend appropriate revisions to the FMP and report to the Council the following September. A public meeting of the CPSMT was held in La Jolla, CA, on August 3 and 4, 1999, and August 24, 1999, and a meeting was held between the CPSMT and the Coastal Pelagic Species Advisory Subpanel on August 24, 1999. At its September 1999 meeting, the Council gave further direction to the CPSMT regarding MSY for squid. At its March 2000 meeting, the Council asked the CPSMT for a more thorough analysis of the alternatives proposed for establishing MSY for squid and for bycatch. At a public meeting in La Jolla, CA, on April 20 and 21, 2000, the CPSMT reviewed comments from the Council, the Council’s Scientific and Statistical Committee (SSC) and prepared additional material for establishing MSY for squid based on spawning area.

The Council distributed Amendment 9 for public review on July 27, 2000. At its September 2000 meeting, the Council reviewed written comments, received comments from its advisory bodies, and heard public comments, and decided to submit only two provisions for Secretarial review. Based on testimony concerning MSY for squid, the Council decided to include in Amendment 9 only the bycatch provision and a provision providing a framework to ensure that Indian fishing rights are implemented according to treaties between the U.S. and the specific tribes. Since implementation of the FMP, the CPS fishery has expanded to Oregon and Washington. As a result, the FMP must discuss Indian fishing rights in these areas. These rights were not included in the FMP; and the Council decided to address this issue in Amendment 9.

The Council decided to conduct further analysis of the squid resource and will prepare a separate amendment that addresses OY and MSY for squid.

This proposed rule would codify the procedures in Amendment 9 designed to ensure that Indian fishing rights are implemented according to treaties between the U.S. and the specific tribes. In addition, this proposed rule would codify a provision in the FMP that authorizes the Regional Administrator, Southwest Region, to require observers on fishing vessels for scientific purposes should such observers be necessary.

Classification

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

Codifying the procedure to address Indian fishing rights would provide a framework that may be used in the future if such action should be necessary. The States of California, Oregon, and Washington are collecting sufficient data to assess the impact of bycatch in the fishery; Codifying the Regulatory Administrator’s authority to require observers would have no effect on any U.S. businesses, small or otherwise.

As a result, a regulatory flexibility analysis was not prepared.

NMFS initiated an informal consultation with the Protected Resources Division, Southwest Region, on January 12, 1999, with regard to the effects of Amendment 8 on endangered and threatened marine mammals and salmon under NMFS’ jurisdiction. On June 3, 1999, NMFS determined that Amendment 8 would not likely adversely affect listed species under NMFS jurisdiction.

On June 8, 1999, NMFS provided the U.S. Fish and Wildlife Service (FWS) with background information on the harvest strategies in Amendment 8 and their potential impact on other species. NMFS requested that FWS concur with NMFS’ determination that Amendment 8 would not likely adversely affect any threatened or endangered birds under FWS’ jurisdiction. On June 10, 1999, the FWS stated that Amendment 8 would not adversely affect endangered or threatened birds under its jurisdiction.

NMFS reinitiated consultation with its Protected Resources Division, Southwest Region, following the publication of additional listed species. On, September 2, 1999, NMFS determined that the FMP was not likely to adversely affect Central Valley spring-run chinook and coastal California chinook. However, since the CPS fishery has expanded to Oregon and Washington; NMFS reinitiated consultation on April 19, 2000.

List of Subject in 50 CFR Part 660

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

Dated: March 27, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 660 as follows:

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

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

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

2. Sections 660.518 and 660.519 are added to subpart I to read as follows:

§ 660.518

Pacific coast treaty Indian rights.

(a) Pacific Coast treaty Indian tribes have treaty rights to harvest CPS in their usual and accustomed fishing areas in U.S. waters.

(b) For the purposes of this section, “Pacific Coast treaty Indian tribes” and their “usual and accustomed fishing areas” is described at § 660.324(b) and (c).

(c) Boundaries of a tribe’s fishing area may be revised as ordered by a Federal court.

(d) Procedures. The rights referred to in paragraph (a) will be implemented in accordance with the procedures and requirements of the framework contained in Amendment 9 to the FMP and this Subpart.

(1) The Secretary, after consideration of the tribal request, the recommendation of the Council, and the comments of the public, will implement Indian fishing rights.

(2) The rights will be implemented either through an allocation of fish that will be managed by the tribes, or through regulations that will apply specifically to the tribal fisheries.

(3) An allocation or a regulation specific to the tribes shall be initiated by a written request from a Pacific Coast treaty Indian tribe to the NMFS Southwest Regional Administrator at least 120 days prior to the start of the fishing season as specified at § 660.510 and will be subject to public review according to the procedures in § 660.508(d).

(4) The Regional Administrator generally will announce the annual tribal allocation at the same time as the annual specifications.

(e) The Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Accordingly, the Secretary will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.

§ 660.519

Scientific observers.

All fishing vessels operating in the coastal pelagic species fishery, including catcher/processors, at-sea processors, and vessels that harvest in Washington, Oregon, or California and land catch in another area, may be required to accommodate NMFS certified observers on board to collect scientific data. An observer program will be considered only for circumstances where other data collection methods are deemed insufficient for management of the fishery. Any observer program will be implemented in accordance with § 660.517.