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: 503-820-2280.

FOR FURTHER INFORMATION CONTACT:

Yvonne deReynier (Northwest Region, NMFS), phone: 206-526-6140; fax: 206-526-6736 and; e-mail: yvonne.dereynier@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the Internet at the website of the Office of the Federal 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

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:

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

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:

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

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

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

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