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 Thursday,December 23, 2004
Part III
Department of Commerce
National Oceanic and Atmospheric Administration 50 CFR Part 660Magnuson-Stevens Act Provisions;Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Final Rule
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77012
Federal Register
/Vol. 69, No. 246/Thursday, December 23, 2004/Rules and Regulations
DEPARTMENT OF COMMERCENational Oceanic and AtmosphericAdministration50 CFR Part 660
[Docket No. 040830250–4342–02; I.D.081304C]RIN 0648–AS27
Magnuson-Stevens Act Provisions;Fisheries off West Coast States and inthe Western Pacific; Pacific CoastGroundfish Fishery; BiennialSpecifications and ManagementMeasures
AGENCY
:
National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.
ACTION
:
Final rule.
SUMMARY
:
With this final rule, NMFSimplements the 2005–2006 fisheryspecifications and managementmeasures for groundfish taken in theU.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, andCalifornia. This rule includes the levelsof the acceptable biological catch (ABC)and optimum yields (OYS). Thecommercial OYS (the total catch OYSreduced by tribal allocations and byamounts expected to be taken inrecreational and resource surveycompensation fisheries) in this rule areallocated between the limited entry andopen access fisheries and betweendifferent sectors of the limited entryfleet. Management measures for 2005–2006 are intended to: achieve but notexceed OYS; prevent overfishing;rebuild overfished species; reduce andminimize the bycatch and discard of overfished and depleted stocks; provideequitable harvest opportunity for therecreational and commercial fishingsectors; and, within the commercialfisheries, achieve harvest guidelines andlimited entry and open accessallocations to the extent practicable.
DATES
:
Effective January 1, 2005.
ADDRESSES
:
Copies of the FinalEnvironmental Impact Statement (FEIS)for this action are available from DonaldMcIsaac, Executive Director, PacificFishery Management Council (Council),at 7700 NE Ambassador Place, Portland,OR 97220, phone: 503–820–2280.Copies of additional reports referred toin this document may also be obtainedfrom the Council. Copies of the Recordof Decision (ROD), final regulatoryflexibility analysis (FRFA), and theSmall Entity Compliance Guide (SECG)are available from D. Robert Lohn,Administrator, Northwest Region(Regional Administrator), NMFS, 7600Sand Point Way, NE, Seattle, WA98115–0070.
FOR FURTHER INFORMATION CONTACT
:
 Yvonne deReynier (Northwest Region,NMFS), phone: 206–526–6129; fax: 206–526–6736 and; e-mail:
 yvonne.dereynier@noaa.gov 
.
SUPPLEMENTARY INFORMATION
:
Electronic Access
The proposed and final rules for thisaction are also accessible via theInternet at the Office of the FederalRegister’s website at
http:// www.gpoaccess.gov/fr/index.html 
.Background information and documentsare available at the NMFS NorthwestRegion website at
www.nwr.noaa.gov/ 1sustfsh/gdfsh01.htm
and at theCouncil’s website at
www.pcouncil.org 
.The SECG is available online at
www.nwr.noaa.gov/1press/sfdpress.htm
.
Background
A proposed rule to implement the2005–2006 specifications andmanagement measures for Pacific coastgroundfish was published on September21, 2004 (69 FR 56550). NMFSrequested public comment on theproposed rule through October 21, 2004.During the comment period, NMFSreceived five letters of comment, whichare addressed later in the preamble tothis final rule. See the preamble to theproposed rule for additional backgroundinformation on the fishery and on thisfinal rule.The Magnuson-Stevens FisheryConservation and Management Act(Magnuson-Stevens Act) and the FMPrequire that NMFS implement actions toprevent overfishing and to rebuildoverfished stocks. Specifications andmanagement measures for 2005–2006are designed to rebuild overfishedstocks consistent with statutoryrequirements through constrainingdirect and incidental mortality, and toachieve as much of the OYS aspracticable for healthier groundfishstocks managed under the FMP. In orderto protect overfished species, allowableharvest levels of healthy species willonly be achieved where such harvestwill not deter rebuilding of overfishedand depleted stocks. Commercialmanagement measures for 2005–2006include landings limits, size limits, gearrestrictions, and time/area closures.Recreational management measuresinclude bag limits, size limits, gearrestrictions, and time/area closures.This final rule continues the coastwidedepth-based management program thatNMFS introduced in 2003, which closesportions of the continental shelf tofishing for groundfish and to fishing formany non-groundfish species infisheries that take groundfishincidentally. These closures areintended to protect and rebuildoverfished groundfish species.
Comments and Responses
During the comment period for the2005–2006 specifications andmanagement measures, which ended onOctober 21, 2004, NMFS received fiveletters of comment. One letter wasreceived from a member of the public,two of these letters were received fromnon-governmental organizationsrepresenting environmental interests,and the fourth letter was received fromthe California Department of Fish andGame (CDFG). NMFS also received aletter of comment from the Council,summarizing its discussions at itsSeptember 2004 meeting on limitedrefinements to its 2005–2006specifications and managementmeasures recommendations. Thoserecommendations are discussed belowin the section on
Changes from theProposed Rule
. Comments received onthe proposed rule are addressed here:
Comment 1:
A commenter stated thatthe Magnuson-Stevens Act requiresNMFS to rebuild overfished species asquickly as possible, citing 16 U.S.C.1854(e)(4)(A). This commenter furtherstated that the fishing harvest levelsNMFS proposes for nearly all theoverfished Pacific groundfish species inthe proposed specifications fail tocomply with this legal requirement because they delay rebuilding for manyyears.
Response:
The commenter states thatoverfished species must be rebuilt asquickly as possible. The Magnuson-Stevens Act, however, states thatrebuilding periods shall ‘‘(i) be as shortas possible, taking into account thestatus and biology of any overfishedstocks of fish, the needs of fishingcommunities, recommendations byinternational organizations in which theUnited States participates, and theinteraction of the overfished stock of fish within the marine ecosystem; and(ii) not exceed 10 years, except in caseswhere the biology of the stock of fish,other environmental conditions, ormanagement measures under aninternational agreement in which theUnited States participates dictateotherwise.’’ [16 U.S.C. 1854(e)(4)(A)(i)and (ii)]Federal regulations at 50 CFR600.310(e)(4)(ii)(B) provide guidance onthe lower and upper limits forrebuilding periods:
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Federal Register
/Vol. 69, No. 246/Thursday, December 23, 2004/Rules and Regulations
‘‘
(B) These factors enter into thespecification of the time period forrebuilding as follows:(1) The lower limit of the specifiedtime period for rebuilding is determined by the status and biology of the stock orstock complex and its interactions withother components of the marineecosystem, and is defined as the amountof time that would be required forrebuilding if fishing mortality wereeliminated entirely.(2) If the lower limit is less than 10years, then the specified time period forrebuilding may be adjusted upward tothe extent warranted by the needs of fishing communities andrecommendations by internationalorganizations in which the UnitedStates participates, except that no suchupward adjustment can result in thespecified time period exceeding 10years, unless management measuresunder an international agreement inwhich the United States participatesdictate otherwise.(3) If the lower limit is 10 years orgreater, then the specified time periodfor rebuilding may be adjusted upwardto the extent warranted by the needs of fishing communities andrecommendations by internationalorganizations in which the UnitedStates participates, except that no suchupward adjustment can exceed therebuilding period calculated in theabsence of fishing mortality, plus onemean generation time or equivalentperiod based on the species
’
life-historycharacteristics. For example, suppose astock could be rebuilt within 12 years inthe absence of any fishing mortality, andhas a mean generation time of 8 years.The rebuilding period, in this case,could be as long as 20 years.
≥
The overfished species harvestspecifications implemented via thisfinal rule were set according to therebuilding plans and rebuildingparameters set for these species in theFMP and in Federal regulations.Allowable rebuilding periods for theeight overfished species were analyzedand discussed in and developed throughAmendments 16
–
2 and 16
–
3 to theFMP. Rebuilding plans for the eightoverfished West Coast groundfishspecies are found within the FMP atSection 4.5.4. Harvest parameters toimplement rebuilding requirements arefound in Federal regulations at 50 CFR660.365.In the preamble to the proposed rulefor this action (69 FR 56550, September21, 2004), NMFS provided details foreach overfished species on minimumtime to rebuild (T
MIN
), maximum time torebuild (T
MAX
) and target rebuildingtime (T
TARGET
). All of the minimum,maximum, and target rebuilding timesfor all of the overfished species weredetermined following stock assessmentsand rebuilding analyses for eachspecies, using the best scientificinformation available at the time of theassessment. None of the overfishedspecies, except lingcod, have T
TARGET
 values equal to or exceeding their T
MAX
 values. Lingcod
’
s T
TARGET
and T
MAX
are both 2009, which is ten years afterlingcod was declared overfished andalso in compliance with the Magnuson-Stevens Act and national standardguidelines. All of the T
TARGET
values forthe overfished species were determinedfollowing the requirements andguidance of the Magnuson-Stevens Actand the national standard guidelines.Thus, the rebuilding periods for all WestCoast groundfish species and theharvest specifications implementedherein for those species comply with theMagnuson-Stevens Act; thecommenter
’
s assertion is incorrect.
Comment 2:
One commenter statedthat the harvest levels NMFS proposedconflict with NMFS
’
s
‘‘
TechnicalGuidance on the Use of thePrecautionary Approaches toImplementing National Standard 1 of the Magnuson-Stevens FisheryConservation and Management Act
’’
 (Technical Guidance). This commenterstated that the Technical Guidancedirects NMFS to select overfishedspecies harvest levels that have a 90
–
percent probability of rebuilding beforeT
MAX
and that result in a rebuildingperiod no longer than the midpoint between T
MIN
and T
MAX
. Further, thiscommenter stated that the OYS NMFSproposed for overfished species violateone or both of these directives. A secondcommenter stated that, under theTechnical Guidance, overfished speciesharvest levels should be set so that theprobability of achieving rebuilding byTMAX should be 90
–
percent or greaterfor those species whose assessmentsinvolve uncertainty. This secondcommenter also supported rebuildingperiods no longer than the midpoint between T
MIN
and T
MAX
.
Response:
NMFS has discussed thisissue thoroughly in the preambles to itsfinal rules to implement Amendment16
–
1 (69 FR 8861, February 26, 2004,)Amendment 16
–
2 (69 FR 19347, April13, 2004) and Amendment 16
–
3 (69 FR57874, September 28, 2004.) These samecommenters submitted these samecomments on those rules and NMFSresponded to those comments in each of those final rules. NMFS hereinsummarizes its responses to thesecomments and refers interested readersto the cited final rules for furtherinformation.The first commenter is incorrect incalling the Technical Guidance a
‘‘
directive.
’’
The Technical Guidance isnot a binding regulation that must befollowed. As mentioned in the Prefaceto the Technical Guidance itself, itprovides guidance on
‘‘
those aspects of scientific fishery management advicethat have biological underpinnings
’’
andit recognizes that there are otherimportant factors for fisheriesmanagement, such as the social andeconomic goals of the Magnuson-Stevens Act. Overfished speciesrebuilding plan probabilities of achieving B
MSY
within T
MAX
years thatare less than 90 percent, and TTARGETdates that are greater than the midpoint between T
MIN
and T
MAX
, have beenestablished in order to meet varyingneeds of West Coast fishingcommunities. As discussed in theresponse to Comment 1, all of theTTARGET dates for all of the overfishedspecies are in compliance with theMagnuson-Stevens Act and the nationalstandard guidelines.
Comment 3:
A commenter referred tothe Technical Guidance, stating thatagreed upon fishing mortality rates andstrategies to rebuild depleted speciesshould be upheld when large yearclasses appear to ensure a successfulrebuilding plan.
Response:
The response to Comment2 explained the status of the TechnicalGuidance. Amendments 16 2 and 16
–
3amended the FMP to include overfishedspecies rebuilding plans for lingcod,canary rockfish, darkblotched rockfish,Pacific ocean perch (POP), cowcod, bocaccio, yelloweye rockfish, andwidow rockfish within the FMP. Toimplement these plans, two rebuildingparameters were added to the Code of Federal Regulations (CFR) for eachoverfished stock, the target year forrebuilding and the harvest control rule.The target year for rebuilding(T
TARGET
)is the year in which there is a50 percent likelihood that the stock willhave been rebuilt with a given mortalityrate. The harvest control rule expressesa given fishing mortality rate that is to be used over the course of rebuilding.These parameters are used to establishthe annual OYS.The FMP also provides that, after anew stock assessment, if the Counciland NMFS conclude that either or boththe target year for rebuilding and theharvest control rule defined inregulation should be revised, therevision will be implemented throughnotice and comment rulemaking, andthe updated values codified in theFederal regulation. Any change to aharvest control rule must be fullysupported by a corresponding analysis.
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