03-22455. Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Amendment 17

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 17 to the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 17 changes the Pacific Fishery Management Council's (Council's) annual groundfish management process from an annual to a biennial process. Amendment 17 is intended to ensure that the specifications and management measures process comports with a Federal Court ruling, to make the Council's development process for specifications and management measures more efficient so that more time is available for other management activities, and to streamline the NMFS regulatory process for implementing the specifications and management measures.

DATES:

Effective October 6, 2003.

ADDRESSES:

Copies of Amendment 17 and the environmental assessment/ regulatory impact review/initial regulatory flexibility analysis (EA/RIR/IRFA) are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council, 7700 NE Ambassador Place, Portland, OR 97220, phone: [phone].

FOR FURTHER INFORMATION CONTACT:

Yvonne deReynier (Northwest Region, NMFS), phone: [phone]; fax: [phone] and; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the Internet at the website of the Office of the Federal Register at: http://www/​access/​gpo.gov/​su_​docs/​aces140.html.

Background

A Notice of Availability for Amendment 17 to the FMP was published on May 22, 2003 (68 FR 27972). NMFS requested comments on the amendment under Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) FMP amendment review provisions for a 60-day comment period, ending July 21, 2003. A proposed rule to implement Amendment 17 was published on June 13, 2003 (68 FR 35354). NMFS requested comment on the proposed rule through July 28, 2003. During the comment periods on the amendment and proposed rule, NMFS received two letters of comment, which are addressed later in the preamble to this final rule. Please see the preamble to the proposed rule for additional background on the fishery and on this rule. Further detail on Amendment 17 also appears in the EA/RIR/IRFA prepared by NMFS for this action.

NMFS approved Amendment 17 on August 20, 2003. Amendment 17 changes the Council's groundfish management process and the NMFS implementation process for specifications and management measures from an annual to a biennial process. Amendment 17 also structures Council development of specifications and management measures so that NMFS has adequate time to implement the biennial specifications and management measures through a notice-and-comment rulemaking. In the FMP, references to the annual specifications process are revised and the biennial fishing period is defined as being the new time unit for specifications and management measures implementation. The regulations to implement Amendment 17 primarily revise references to the annual specifications and management measures process in the Federal groundfish regulations at 50 CFR 660.301-360 so that they reflect the new biennial specifications and management measures process. Amendment 17 does not introduce new regulations or revisions to existing regulations that affect how the groundfish fleets conduct their fishing operations, which is the primary focus of Federal groundfish fishery regulations.

Comments and Responses

NMFS received two letters of comment on the proposed rule for Amendment 17. One letter was received from the U.S. Department of the Interior, providing general support for a more workable approach to groundfish management that provides adequate opportunity for public review and comment on changes to fishery regulations. The second letter was received from an environmental advocacy organization and contained more specific comments, which are addressed here:

Comment 1: We believe that a sentence in the proposed rule at 50 CFR 660.323(b)(1)(i) needs to be altered. That sentence, as laid out in the proposed rule reads: “Trip landing and frequency limits and size limits for species with those limits designated as routine may be imposed or adjusted on a biennial or more frequent basis for the purpose of keeping landings within the harvest levels announced by NMFS, and for the other purposes given in paragraph (b)(1)(i)(A) and (B) of this section.” We believe that the sentence should read: “Trip landing and frequency limits and size limits for species with those limits designated as routine may be imposed or adjusted on an inseason basis for the purpose of keeping landings within the harvest levels announced by NMFS, and for the other purposes given in paragraph (b)(1)(i)(A) and (B) of this section.” We think that the current language implies that parts of the biennial specifications could be established for the two-year period without notice and comment, which is not consistent with applicable law.

Response: The suggested change is unnecessary. The regulations say that “routine management measures” may be imposed or adjusted on a biennial or more frequent basis. This does not, however, mean that some measures in the biennial specifications and management measures package will be imposed without notice and comment rulemaking, just because some of the management measures will have been designated routine. The regulations at 660.323(b) state that management measures that have been designated as routine may be imposed through a single Federal Register document if good cause exists under the Administrative Procedure Act to waive notice and comment. Therefore, the regulations recognize the legal obligation to provide prior notice and an opportunity for public comment in order to change any regulation, while stating that in certain, limited circumstances this requirement may be waived. In addition, the regulations at 660.321 (a) state that management will be consistent with standards and procedures in the FMP. The FMP, as amended by this Amendment 17, establishes a biennial management process for establishing the specifications and management measures that specifically includes time for a notice and comment rulemaking.

Finally, it would not be accurate to say routine management measures may only be imposed or adjusted on an inseason basis, because they are also imposed or adjusted during the biennial process. During the biennial process being established by this Amendment 17, however, they will be imposed using notice and comment rulemaking.

Comment 2: We also believe that, in 50 CFR 660.323(b)(1)(i), the last phrase of the paragraph, in referencing paragraphs

§ 660.323(b)(1)(i)(A) and (B), could be read to authorize altering trip landing and frequency limits and size limits without notice and comment where the alteration might cause an exceedance of previously specified harvest levels, in order to “extend the fishing season” or “minimize disruption of traditional fishing and marketing patterns.” We recommend that NMFS add the phrase “so long as the change in trip landing limits, trip frequency limits, or size limits would not result in total fishing mortality greater than previously specified harvest levels” at the end of 660.323(b)(1)(i).

Response: The comment is beyond the scope of this rulemaking. The proposal this action implements is the multiyear management process, and regulatory changes are only being imposed to cover that action. The comment suggests revising language regarding the inseason adjustment process. However, the overriding direction for management measures, whether established preseason or adjusted inseason is to achieve, but not exceed, the specifications.

Classification

The Administrator, Northwest Region, NMFS, has determined that Amendment 17 is necessary for the conservation and management of the Pacific coast groundfish fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

NMFS prepared a final regulatory flexibility analysis (FRFA) describing the impact of this action on small entities. The initial regulatory flexibility analysis (IRFA) was summarized in the proposed rule on June 13, 2003 (68 FR 35354). The following is a summary of the FRFA.

Amendment 17 revises the Pacific Fishery Management Council's (Council's) annual groundfish management process so that it becomes a biennial process with time for notice and comment rulemaking to implement the biennial specifications and management measures. Amendment 17 is intended to ensure that the specifications and management measures process responds to a court ruling in Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904 (9^th Cir. 2002), to make the Council's development process for specifications and management measures more efficient in order to allow time for other management activities, and to streamline the NMFS regulatory process for implementing the specifications and management measures.

The comment period on this proposed rule (68 FR 35354, June 13, 2003) for this action ended on July 28, 2003. The agency received 2 letters of comment on the proposed rule, but none of the comments received addressed the IRFA. Comments on the proposed rule are addressed in the “Comments and Responses” section of this final rule.

This final rule will affect all participants in the West Coast groundfish fisheries. Approximately 2,000 vessels participate in the West Coast groundfish fisheries. Of those, about 500 vessels are registered to limited entry permits issued for either trawl, longline, or pot gear. About 1,500 vessels land groundfish against open access limits while either directly targeting groundfish or taking groundfish incidentally in fisheries directed at non-groundfish species. All but 10-20 of those vessels are considered small businesses by the Small Business Administration. There are also about 450 groundfish buyers on the West Coast, approximately 5 percent of which are responsible for about 80 percent of West Coast groundfish purchases. 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.

This final rule does not impose any new reporting or recordkeeping requirements.

This rule is administrative in nature and is expected to have only a minimal economic impact on small entities. The action would maximize time for stock assessment scientists, Council staff, and NMFS staff to prepare documentation needed to implement specifications and management measures without disrupting the historic January 1 season start date. Under the proposed measure, vessel operators should be able to take advantage of whichever seasonal markets best fit their needs. Small vessel operators should not be forced to fish during inclement weather because of concerns about fishery closures during spring and summer months. Vessel operators afforded the privilege of fishing for both Dungeness crab and groundfish, or groundfish and shrimp, should be able to time their fishing trips based on the migratory patterns of their target species and the needs of their own marketing strategies and those of their associated processors. While implementing multi-year groundfish management will not alleviate all season-related management problems for fisheries participants, it should be a positive step toward improving the stability and certainty of seasonal groundfish allocations for participating harvesters. The improved science and management made possible with multi-year planning will help mitigate the closure cycle by stabilizing groundfish allocations and landings throughout the season.

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

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

The Council will retain a 1-year specification of ABC and OY. This represents no change and will have no economic impact to vessels affected by the proposed rule. The Council also considered a two-year specification period. However, since early attainment of OY could lengthen closure periods under a 2-year specification of these targets, this alternative would be expected to have a potentially adverse economic impact on vessel profitability. With 2-year OYs, management measures would need to be more conservative at the start of the 2-year fishing period to hedge against early closures during the second year in the fishing period. The Council also considered a mixture of 1-year and 2-year specifications for different groundfish species. This approach could also have a potentially adverse economic impact on vessel profitability for vessels fishing under two-year specifications for the reasons listed above.

Compliance requirements do not go beyond general compliance requirements for operating in the Pacific Coast groundfish fishery.

List of Subjects in 50 CFR Part 660

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

Dated: August 27, 2003.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

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

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

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

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

§ 660.302

Definitions.

* * * * *

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

* * * * *

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

* * * * *

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

* * * * *

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

§ 660.321

Specifications and management measures.

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

(b) Biennial actions. The Pacific Coast Groundfish fishery is managed on a biennial, calendar year basis. Harvest specifications and management measures will be announced biennially, with the harvest specifications for each species or species group set for two sequential calendar years. In general, management measures are designed to achieve, but not exceed, the specifications, particularly optimum yields (harvest guidelines and quotas), commercial harvest guidelines and quotas, limited entry and open access allocations, or other approved fishery allocations, and to protect overfished and depleted stocks.

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

* * * * *

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

§ 660.323

Catch restrictions.

(a)* * *

(2)* * *

(ii)* * *

(C) Cumulative limits. (1) A vessel participating in the primary season will be constrained by the sablefish cumulative limit associated with each of the permits registered for use with that vessel. The Regional Administrator will biennially or annually calculate the size of the cumulative trip limit for each of the three tiers associated with the sablefish endorsement such that the ratio of limits between the tiers is approximately 1:1.75:3.85 for Tier 3:Tier 2:Tier 1, respectively. The size of the cumulative trip limits will vary depending on the amount of sablefish available for the primary fishery and on estimated discard mortality rates within the fishery. The size of the cumulative trip limits for the three tiers in the primary fishery will be announced in the Federal Register.

* * * * *

(3)* * *

(i)* * *

(A)* * *

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

* * * * *

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

* * * * *

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

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

* * * * *

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

* * * * *

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

§ 660.324

Pacific Coast treaty Indian fisheries.

* * * * *

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

* * * * *

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

* * * * *

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

§ 660.332

Allocations.

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

* * * * *

(b) * * *

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

* * * * *

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

* * * * *

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

§ 660.333

Limited entry fishery eligibility and registration.

* * * * *

(c) * * *

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

* * * * *

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

§ 660.350

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

(a) * * *

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

* * * * *