[Federal Register Volume 64, Number 175 (Friday, September 10, 1999)]
[Rules and Regulations]
[Pages 49092-49102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23486]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 990121026-9229-02; I.D. 112498A]
RIN 0648-AL52
Pacific Coast Groundfish Fishery; Amendment 11
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; announcement of partial approval of an amendment to
a fishery management plan, and
[[Page 49093]]
announcement of stocks characterized as overfished.
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SUMMARY: NMFS announces the approval of Amendment 11 to the Pacific
Coast Groundfish Fishery Management Plan (FMP) except for the bycatch
provisions which were disapproved. NMFS issues this final rule to
implement portions of that amendment that define overfished, identify
essential fish habitat, and comply with other requirements of the
Sustainable Fisheries Act (SFA). This rule also implements Amendment
11's provisions governing the use of fish as compensation for fisher
participation in collecting fishery resource information. NMFS also
announces that it has informed the Pacific Fishery Management Council
(Council) that three stocks managed under the Pacific Coast Groundfish
FMP, Pacific ocean perch, lingcod, and bocaccio, are overfished. These
regulations are intended to improve the types and amount of scientific
information available for use in stock assessments and management of
the Pacific Coast groundfish fishery.
DATES: Effective October 12, 1999.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review (EA/RIR) for Amendment 11 are available from Lawrence D. Six,
Executive Director, Pacific Fishery Management Council, 2130 SW. Fifth
Avenue, Suite 224, Portland, OR 97201.
Comments regarding the reporting burden estimate or any other
aspect of the collection-of-information requirements contained in this
rule should be sent to William Stelle, Jr. Administrator, Northwest
Region, NMFS, 7600 Sand Point Way NE. BIN C157000. Seattle, WA 98115-
0070 or to Rodney R. McInnis, Acting Administrator, Southwest Region,
NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802, and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), Washington, D.C. 20503 (ATTN: NOAA Desk
Officer).
FOR FURTHER INFORMATION CONTACT: Katherine King or Yvonne de Reynier at
206-526-6140 or the Pacific Fishery Management Council at 503-326-6352.
SUPPLEMENTARY INFORMATION: The Council submitted Amendment 11 to bring
the Pacific Coast Groundfish FMP into compliance with the requirements
in Section 303 (a) of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) that were added by the SFA.
Amendment 11 modifies the FMP framework that defines ``optimum yield''
(OY) for setting annual groundfish harvest limits; sets framework
control rules on defining rates of ``overfishing'' and levels at which
managed stocks are considered ``overfished;'' identifies Pacific Coast
groundfish Essential Fish Habitat (EFH); sets a bycatch management
objective and a framework for bycatch reduction measures; establishes a
management objective to take the importance of fisheries to fishing
communities into account when setting groundfish management measures;
provides authority within the FMP for the Council to require groundfish
use permits for all groundfish users; authorizes the use of fish for
compensation for private vessels conducting NMFS-approved research;
removes jack mackerel from the fishery management unit; and updates FMP
objectives, definitions, and industry descriptions.
The Pacific Coast Groundfish FMP provides a framework for certain
Council actions without requiring cumbersome amendment procedures for
those actions. Portions of this amendment that are designed to meet
several of the new Magnuson-Stevens Act requirements will change the
way the Council manages the groundfish fishery without changing the
regulations that implement the FMP. A new definition of OY, specific
overfishing and overfished levels, and accounting for the needs of
fishing communities in setting fishery management measures will become
part of the guidelines the Council uses to set its annual
specifications and management measures. Amendment 11 provides a
framework to implement fishery management measures to protect
groundfish EFH, which the Council will use to, among other things,
investigate implementing marine research reserves. Amendment 11 also
contains a bycatch management objective; however, NMFS has disapproved
the bycatch provisions of Amendment 11 because they do not adequately
meet Sec. 303(a)(11) and National Standard 9 of the Magnuson-Stevens
Act. These provisions require that conservation and management
measures, to the extent practicable, minimize bycatch and bycatch
mortality. Section 303(a)(11) also requires the establishment of a
standardized reporting methodology to assess the amount and type of
bycatch occurring in the fishery.
This rule implements the portions of Amendment 11 that authorize
the use of fish as compensation for private vessels conducting NMFS-
approved research. This action also makes minor changes to codified
definitions of regulatory terms. Amendment 11 includes a provision to
remove jack mackerel from the fishery management unit (FMU) of the
Pacific Coast Groundfish FMP in order to place it in the FMU of the FMP
for Coastal Pelagic Species. Amendment 8 to the Council's Northern
Anchovy FMP, which renames that FMP as the Coastal Pelagic Species FMP
and incorporates jack mackerel into the Coastal Pelagic Species FMU,
was made available for public comment on March 12, 1999 (64 FR 12279)
through May 25, 1999. Amendment 8 was partially approved on June 10,
1999. Therefore, jack mackerel has now been removed from the FMU of the
Pacific Coast Groundfish FMP and placed in the FMU for the Coastal
Pelagic Species FMP.
The notice of availability for Amendment 11 was published on
December 1, 1998 (63 FR 66111), and NMFS requested public comments on
Amendment 11 through February 1, 1999. A proposed rule to implement
those portions of Amendment 11 that authorize the use of fish for
compensation for private vessels conducting NMFS-approved research, and
that changed some definitions, was published on February 10, 1999 (64
FR 6597). NMFS requested public comments on the proposed rule through
March 29, 1999. During the comment period on the notice of availability
for Amendment 11, NMFS received seven letters of comment, which are
addressed later in the preamble to this final rule. During the comment
period on the proposed rule, NMFS received one letter of comment, which
is also addressed later in the preamble to this final rule, in the
section entitled ``Regulatory Definitions of Terms.''
Partial Approval of Amendment 11; Disapproval of Bycatch Provisions
On March 3, 1999, NMFS approved all of Amendment 11 to the Pacific
Coast Groundfish FMP, except for those portions concerning the
reduction of bycatch and bycatch mortality. Amendment 11 addresses
bycatch through the FMP's framework mechanism, by revising one of the
objectives of the FMP to read, ``Strive to reduce the economic
incentives and regulatory measures that lead to wastage of fish. Also,
develop management measures that minimize bycatch to the extent
practicable and, to the extent that bycatch cannot be avoided, minimize
the mortality of such bycatch. In addition, promote and support
monitoring programs to improve estimates of total fishing-related
mortality and bycatch, as well as those
[[Page 49094]]
to improve information necessary to determine the extent to which it is
practicable to reduce bycatch and bycatch mortality.''
Although NMFS supports the Council's continued use of framework
provisions in the FMP's regulatory structure, the bycatch provisions in
Amendment 11 fail to respond meaningfully to the bycatch requirements
of the Magnuson-Stevens Act. Requirements at Section 303(a)(11) of the
Magnuson-Stevens Act clearly state that an FMP must ``establish a
standardized reporting methodology to assess the amount and type of
bycatch occurring in the fishery, and include conservation and
management measures that, to the extent practicable and in the
following priority--(A) minimize bycatch; and (B) minimize the
mortality of bycatch which cannot be avoided.'' A framework FMP would
not necessarily include regulatory recommendations to reduce bycatch;
however, the FMP's bycatch provisions should fully analyze and describe
the Council's past efforts and planned future efforts to reduce bycatch
and to establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in the groundfish fishery,
including a discussion of all reasonable alternatives to the current
management regime.
The current Amendment 11 analysis on bycatch in the groundfish
fisheries basically states that there is very little information on
bycatch rates in the groundfish fisheries, and that this lack of
information may or may not threaten the long-term health of the fish
stocks and the long-term viability of the fishing industries and
communities that depend on those stocks. There is no assessment of
current bycatch levels in the groundfish fisheries; nor is there an
analysis based on the best available scientific information of the
biological and socio-economic effects of bycatch under current
management measures. The bycatch provisions of Amendment 11 will be
complete when the Council has submitted a full analysis of existing and
possible future efforts to reduce bycatch in the groundfish fisheries,
including a discussion of how bycatch is reduced to the maximum extent
practicable under current management measures, a standardized reporting
methodology that would be used to assess bycatch rates in the
groundfish fishery, and an analysis of all practicable alternatives to
the current year-round trip limit management system that could be
expected to result in a reduction of bycatch rates.
The bycatch definition in Amendment 11 has also been disapproved
because it is inconsistent with the definition of bycatch provided by
the Magnuson-Stevens Act that states, at 16 U.S.C. 1802 (2), ``The term
'bycatch' means fish which are harvested in a fishery, but which are
not sold or kept for personal use, and includes economic discards and
regulatory discards. Such term does not include fish released alive
under a recreational catch and release fishery management program.''
According to Amendment 11, ``[b]ycatch means fish which are harvested
in a fishery, but which are not sold or kept for personal use or
donated to a charitable organization and includes economic and
regulatory discards.'' While NMFS does not deny the positive community
effects of donating landed bycatch to charitable organizations, the act
of donating such fish does not alter the fact that those fish are
defined as bycatch by the Magnuson-Stevens Act. The FMP should use the
Magnuson-Stevens Act definition of bycatch.
Comments and Responses
NMFS received seven letters of comment on Amendment 11 during the
60-day public comment period for Amendment 11 as established by the
Notice of Availability (December 1, 1999, 63 FR 66111). These letters
addressed the major Magnuson-Stevens Act issues in Amendment 11. A
summary of these comments and NMFS' responses thereto, as well as NMFS'
response to one comment received on the proposed rule, appear below in
the following responses to public comments. Of the letters received,
three letters were from marine-focused environmental advocacy
organizations, two letters were from public utilities interests, one
letter was from a public wastewater disposal and sanitation interest,
and one letter was from a law firm writing on behalf of a variety of
unspecified, land-based, commercial interests. Some comments opposed
certain aspects of Amendment 11 provisions on overfishing, bycatch, and
EFH. The other comments concerned only the EFH portion of Amendment 11.
In addition to commenting on the amendment, two of the letters cited
concerns with the NMFS consultation process for non-fishing effects on
EFH. These comments on the EFH consultation process were not directly
on Amendment 11 or on the proposed implementing regulation. NMFS
Northwest Regional Office of Habitat Conservation is dealing with these
consultation concerns. All comments received on Amendment 11 are
summarized and responded to below.
Some of the commenters expressed a concern about, or
misunderstanding of, the mechanics of a framework FMP and frameworking
aspects of Amendment 11. The Council has been using the framework
process since 1990, when it implemented Amendment 4 to the FMP. By
frameworking the goals and actions of the FMP, the Council has
maintained the FMP as a statement of principles with standards and
procedures that allow a variety of implementing actions. Framework FMPs
tend to be less confusing and less cumbersome than FMPs without
frameworks. All Council actions, including those implementing the FMP
and its amendments, are public processes with multiple opportunities
for public review and comment on proposed actions. Public input is not
lost under an FMP's framework procedure. On the contrary, FMP
frameworks give the Council more flexibility to incorporate public-
generated changes and corrections into its proposed actions than FMPs
without frameworks. Framework FMPs also give the Council more
flexibility in how it responds to problems, which, in turn, brings the
public further into the policy-making process as a resource in reaching
solutions to those problems. NMFS continues to support the Council's
frameworking process as providing a public process.
Comments on Overfishing
Comment 1: Although the Council's default framework for avoiding
overfishing is one of the strongest in the nation, the Council adopted
two loopholes that allow excessive fishing. One loophole permits higher
limits than the Council's own default policy, and the second loophole
allows overfishing of single populations in a mixed population fishery.
Both of these loopholes need to be deleted.
Response: NMFS disagrees with this suggested alteration of
Amendment 11. The Magnuson-Stevens Act requires that FMPs be consistent
with 10 national standards, the first of which reads, ``Conservation
and management measures shall prevent overfishing while achieving, on a
continuing basis, the OY from each fishery for the United States
fishing industry.'' Councils are also charged by the Magnuson-Stevens
Act with rebuilding overfished fisheries. To meet these requirements,
the Council had to amend its process for setting OYs for managed
species to ensure that no OY would exceed the maximum sustainable yield
(MSY) for a particular stock. In accordance with the national standard
guidelines, OY would not exceed the acceptable biological catch (ABC)
(or the sum of ABCs for a complex) unless the Council demonstrates that
overfishing mixed stock exception criteria have been met.
[[Page 49095]]
This overfishing mixed stock exception is not a ``loophole,'' but an
implementation of a component of NMFS national standards guidelines, a
tool for implementing the Magnuson-Stevens Act's broad policy
requirements within the biological, ecological, and socio-economic
realities of our nation's fisheries. According to the guidelines at 50
CFR 600.310(d)(6):
Harvesting one species of a mixed-stock complex at its optimum
level may result in the overfishing of another stock component in
the complex. A Council may decide to permit this type of overfishing
only if all of the following conditions are satisfied: (i) It is
demonstrated by analysis that such action will result in long-term
net benefits to the Nation. (ii) It is demonstrated by analysis that
mitigating measures have been considered and that a similar level of
long-term net benefits cannot be achieved by modifying fleet
behavior, gear selection/configuration, or other technical
characteristic in a manner such that no overfishing would occur.
(iii) The resulting rate or level of fishing mortality will not
cause any species or evolutionarily significant unit thereof to
require protection under the ESA.
This careful language is clearly not a loophole, but rather, an
acknowledgment that marine ecosystems support a wide variety of
different fish species, and that fishing gear is often not selective
enough to distinguish between species of healthy stock status and
species of troubled stock status.
Amendment 11 calls for numerical OYs for individual species and
species groups, and clarifies that the Council will decide on a case-
by-case basis whether to establish OYs for individual species and
species groups. A non-numerical OY may be retained for some species.
For the Council to ensure that its OY recommendations do not exceed
MSYs for managed species, it must know the MSYs of those species.
Groundfish stock assessment processes are ongoing and primarily focus
on the more heavily-targeted species, so for many managed species,
there is no known species-specific MSY. Therefore, the Council
recommended setting an ``MSY control rule'' for managed species that
allows a conservative rate of fishing on those species for which there
is no numerical MSY based on stock assessments. The MSY control rule
for Pacific coast groundfish is a constant fishing mortality rate that
serves as a limit. The default rate is F40% for rockfish and
F35% for other species, both of which may be superseded
based on better scientific information. ABC is defined as the
appropriate F times the current biomass estimate. The default
overfished/rebuilding threshold is 25 percent of Bunfished.
For stocks with biomass smaller than the MSY biomass, OY will be
adjusted to be more conservative than ABC. Between Bmsy and
B10%, OY will be adjusted to be increasingly more
conservative at lower biomass levels. A stock that is at or below
B10% will have a zero OY. This conservative guideline would
serve as a default interim rebuilding adjustment to OY for stocks below
their overfished/rebuilding threshold, and would be in effect until a
formal rebuilding plan is developed for those stocks. Once the
Secretary of Commerce (Secretary) has identified a stock as overfished,
the Council has 1 year to develop a rebuilding plan. Based on the
definition of ``overfished'' in Amendment 11, NMFS notified the Council
on March 3, 1999, that Pacific ocean perch, lingcod, and bocaccio were
considered overfished. The Council has already begun work on rebuilding
plans for these stocks.
The Council may set the harvest level for a stock higher than the
default control rule, but not higher than the MSY harvest rate, as long
as the higher harvest rate is not inconsistent with rebuilding the
stock to Bmsy. Commenters on this issue also identified this
exception to the default control rule as a ``loophole.'' Like the
mixed-stock exception for overfishing, this exception provides the
Council flexibility in dealing with the challenges of managing a mixed-
stock complex while meeting the requirement to rebuild overfished
stocks. Under this exception, an overfished stock within a mixed-stock
complex could be harvested at a rate above the default control rate,
but below MSY. Even management measures that keep harvest rates on an
overfished stock to the lowest possible incidental interception rates
may fall within that range between the default control rate and MSY.
Comments on Bycatch
Comment 2: The bycatch provision is not adequate and needs to be
strengthened by including such provisions as: (1) Adopting a mandatory
west coast observer program; (2) for some species, adopting an
alternative to the year-round fishery and to the use of trip limits--
management tools that have been shown to result in increased discards;
(3) establishing bycatch caps based on harvest guidelines; (4) allowing
stackable permits; and (5) creating incentives for clean fishing by
developing ``harvest priorities'' with options such as extra
allocations for fishers with lower bycatch rates.
Response: NMFS agrees that the bycatch provisions in Amendment 11
are not adequate and has disapproved those provisions. Amendment 11,
including the supporting analysis, neither assesses current bycatch
rates, nor recommends management measures for reducing bycatch rates or
gathering bycatch data. NMFS recognizes that the FMP is a framework FMP
that sets the standards and procedures that govern the Council's
actions. However, NMFS believes that the Amendment 11 framework
objective for bycatch reduction by itself neither assesses bycatch in
the groundfish fishery under current management measures nor addresses
what steps the Council intends to take to assess and then reduce
bycatch rates in the future.
NMFS recognizes that the Council has been exploring several
alternatives to its current groundfish management system in order to
address the waste issues in the groundfish fishery. There is no
``silver bullet'' that will solve all of the different problems in the
fishery. Several different advisory committees have been formed to
develop a suite of solutions to address the many challenges in
groundfish management. At its April 1999 meeting, the Council proposed
development of an observer program for Pacific Coast groundfish
fisheries and appointed an Implementation Committee to design a
statistically valid observer program. The Council's Total Catch
Determination Committee has concluded that, in addition to an observer
program, the fleet should move to enhanced logbook reporting. The
Council is also convening a series of legal gear committees, with one
committee for each gear group or fishing sector, that will address gear
performance standards to reduce bycatch and to minimize gear impacts on
EFH. Reducing overall fleet participation and capacity is being
considered through development of programs for permit stacking and
permit buyback. Many of the new ideas being explored by the Council
would require a fundamental shift in how Pacific groundfish fisheries
operate. NMFS will be working with the Council to develop new bycatch
provisions through an FMP amendment, to implement management measures
to minimize bycatch and discard mortality to the extent practicable,
and to implement a data gathering system for bycatch.
Comments on EFH
Comment 3: By the terms of the SFA, EFH authorization is limited to
``the description and identification of essential fish habitat in
fishery management plans.'' 16 U.S.C. 1855(b)(1)(A). This limitation
makes it clear that NMFS and the Council authority applies only to
``fisheries''.
[[Page 49096]]
There is no basis in the Magnuson-Stevens Act for the Councils to
address, through plans, nonfishing activities or habitat outside of the
Exclusive Economic Zone (EEZ) regulatory jurisdiction of the Council.
Response: NMFS disagrees with the commenter's interpretation of the
Magnuson-Stevens Act. ``Essential Fish Habitat'' is defined at 16
U.S.C. 1802(3)(10) as ``those waters and substrate necessary to fish
for spawning, breeding, feeding or growth to maturity.'' The Magnuson-
Stevens Act requires at section 16 U.S.C. 1855(b)(1)(A) that NMFS
``establish by regulation guidelines to assist the Councils in the
description and identification of EFH in the fishery management plans
(including adverse impacts on such habitat) and in the consideration of
actions to ensure the conservation and enhancement of such habitat.''
The Council must also identify other actions to conserve EFH, which
includes minimizing to the extent practicable adverse effects on EFH
caused by fishing. Finally, the statute requires that every Federal
agency consult with the Secretary of Commerce on any action (fishing or
non-fishing) authorized, funded or undertaken by that agency that may
adversely affect EFH. See 16 U.S.C. 1855(b)(3) and 16 U.S.C.
1953(a)(7). The statute and plan amendment make a clear distinction
between what NMFS regulates, with Council input, under the plan
(fishing that affects EFH) and what the Council and NMFS discuss and
provide comments on (other activities that affect EFH). Amendment 11
does not take any regulatory action or require any regulations
concerning non-fishing activities.
Comment 4: The EFH designations include ``all waters from the mean
higher high water line, or the upriver extent of saltwater intrusions
into river mouths, along the coasts of Washington, Oregon, and
California seaward to the boundary of the U.S. Exclusive Economic Zone
(EEZ).'' This area is too broad to be effectively managed as EFH. This
limitless approach to identifying EFH is unlawful. It renders
meaningless the terms ``essential'' and ``necessary'' as used in the
Magnuson-Stevens Act, and otherwise clearly exceeds Congressional
intent. If Congress had intended for EFH to include all waters in the
general distribution of a species, it could have and would have done
so. The proposed definition is too broad in that it unnecessarily
identifies the entire geographic ranges of the managed species.
Response: The Magnuson-Stevens Act defines ``essential fish
habitat'' as ``those waters and substrate necessary to fish for
spawning, breeding, feeding or growth to maturity'' 16 U.S.C. 1802
(3)(10). When Congress amended the Magnuson-Stevens Act with the SFA,
it did not limit how the phrase ``those waters and substrate necessary
to fish for spawning breeding, feeding or growth to maturity'' would
apply to the different FMPs in different portions of the U.S. coast. As
with the Magnuson-Stevens Act national standards, NMFS had to create a
tool to implement these broad policy requirements within the realities
of current scientific knowledge about managed fish stocks and their
habitats. To address the difficult problem of describing EFH, NMFS
issued an interim final rule to implement the EFH provisions of the
Magnuson-Stevens Act (62 FR 66531, December 19, 1997; 50 CFR Part 600,
Subparts J and K.)
This rule describes an approach for designating EFH under current
information conditions and an ultimate goal for information about
managed species EFH. Four levels of information range from (1)
``Presence/absence distribution data are available for some or all
portions of the geographic range of the species,'' to (4) ``Production
rates by habitat (for particular species) are available.'' 62 FR
Sec. 6552; 50 CFR Sec. 600.815 (a)(2)(B). Under the Pacific Coast
Groundfish FMP, the Council had to describe EFH for 82 different
groundfish species, at life history stages ranging from eggs/
parturition to adulthood and spawning adulthood. Over 400 EFH
identifications were required to provide habitat descriptions for all
life stages of all managed species. For most life stages of most
species, only very basic presence/absence information was available.
For some species, Level 2 information, ``Habitat-related densities of
the species are available'' existed for adult life stages. However,
identifying adult life stage EFHs for those species/stages for which
there existed Level 2 information did not tend to diminish either the
EFH of individual species over their entire life history or the entire
EFH under the FMP. NMFS agrees that the Pacific Coast Groundfish FMP
EFH is large. However, NMFS believes that the identified EFH is no
larger than is supported by current scientific evidence. NMFS and the
Council plan to continue research on Pacific Coast groundfish habitat
with the aim of achieving the highest possible levels of information
for all life stages of all managed species. NMFS cautions the public
that while higher information levels will likely result in smaller
specific EFHs for each life stage of each managed species, the
cumulative size and shape of the 400+ EFH definitions might not be
significantly smaller than the current EFH description.
Comment 5: The highest level information available must be used in
EFH designations. It appears that the EFH portion of Amendment 11 gives
higher credence to Level 1 information than to Level 2 information.
Because the Council dismissed Level 2 information, it does not appear
that NMFS and the Council have used the best scientific information
available in designating EFH. Furthermore, the EFH portion of Amendment
11 should include a schedule and research plan to fill identified data
gaps. The research plan should demonstrate that it will lead to the
development of higher level EFH information.
Response: NMFS believes that the Council did not dismiss Level 2
information. On the contrary, EFH descriptions for individual species
and life stages provide summaries of the highest level of information
available for each species' life stages. NMFS agrees with commenters on
the importance of research to provide higher levels of information for
all species at all life stages. NMFS expects to continue to conduct
research on groundfish habitat, and to keep abreast of similar research
being conducted by other Federal agencies, states and tribes, academia,
and private organizations. Because information is limited or lacking
for many species and/or life stages, further research cannot help but
lead to the development of higher level EFH information. Amendment 11
provides research recommendations for further efforts to provide higher
and more detailed information on groundfish EFH, as required by 50 CFR
600.815(a)(10). In addition, groundfish EFH research priorities have
been adopted into the Council's biennial ``Research and Data Needs for
1998-2000,'' which summarizes the Council's scientific research needs
for all fisheries under the Council's authority.
Comment 6: Amendment 11 includes a limited number of broadly
defined ``composite EFHs'' to address the complexity of dealing with
numerous individual species and unique life stages. We are concerned
that this approach will require consultation on the effects of our
activities on species that either do not occur off of our portion of
the Pacific Coast, or which are rarely or anomalously observed in our
waters. It is clear that not all of the non-fishing activities
described will potentially impact all groundfish species.
[[Page 49097]]
Response: NMFS agrees that not all of the non-fishing activities
described in the EFH portion of Amendment 11 will affect all groundfish
species. The approach of using ``composite EFHs'' is designed to make
the consultation process more simple, not more complex. If a particular
activity is known to adversely affect only the marine component of the
estuarine composite, for example, consultation would be limited to EFH
for those species and life stages associated with the estuarine
composite in the geographic area of the activity considered.
Comment 7: EFH designations must be updated through FMP amendments,
rather than through an administrative process, so that updates of EFH
designations include an opportunity for public review and comment.
Response: NMFS disagrees with this comment, for the reasons stated
earlier in the discussion on frameworking. Amendment 11 sets the
process of updating EFH designations within a framework that allows the
Council to include new information more frequently than would be
possible if EFH designations were updated through FMP amendments. All
discussions by the Council and its advisory bodies concerning EFH will
be open to the public, and any decisions made on updating EFH
designation will be made only after public comment has been considered.
The Council publicly announces all of its meetings, and makes
particular effort to keep a wide range of constituents informed of its
activities, and of the activities of its advisory bodies.
Comment 8: Effects of non-fishing activities on marine waters are
already well regulated at the present time under a wide range of state
and Federal programs. No adequate scientific or other justification is
presented in the amendment or in supporting materials for adoption of
general prescriptive measures against non-fishing activities that may
affect EFH. Overgeneralized conclusions about the effects of non-
fishing activities on EFH unnecessarily encumber NMFS and the Councils,
as well as other Federal and state agencies and a huge number of
nonfishing sector enterprises and communities with an overly complex
consultation and coordination process. The measures suggested are
likely to be redundant or in conflict with measures being pursued under
other regulatory programs. Therefore, these suggested conservation and
management measures are not in compliance with the Magnuson-Stevens Act
national standards, which state that conservation and management
measures be based on the best available scientific information, and
that such measures shall, where practicable, minimize costs and avoid
unnecessary duplication.
Response: The interim final rule (62 FR 66531, December 19, 1997;
50 CFR Part 600, Subparts J and K) discussed earlier, in the response
to Comment 4, requires that FMPs ``identify activities that have the
potential to adversely affect EFH quantity or quality, or both.'' 50
CFR Section 600.815(a)(5). FMPs also must ``describe options to avoid,
minimize, or compensate for the adverse effects identified pursuant to
(fishing and non-fishing activities).'' 50 CFR Section 600.815(a)(7).
The Council does not have regulatory authority over non-fishing
activities affecting groundfish EFH. The FMP does not impose management
measures on non-fishing interests. It provides the information called
for in the statute and regulations, so that it can be used by the
public and in the consultation process established in the statute.
The Magnuson-Stevens Act requires all Federal agencies whose
activities may adversely affect EFH to consult with NMFS (16 U.S.C.
1855(b)(2)). According to 16 U.S.C. 1855(b)(4), NMFS is required to
provide EFH conservation and enhancement recommendations to Federal and
state agencies for actions that adversely affect EFH. State agencies
and private parties are not required to consult directly with NMFS on
their activities with EFH. However, if their activities are authorized,
funded or undertaken by a Federal agency, then that Federal agency must
consult with NMFS.
The EFH consultation requirements of the Magnuson-Stevens Act will
be implemented, to the extent possible, through existing framework of
established habitat conservation policies. EFH consultations will be
combined with existing interagency consultations and environmental
review procedures that may be required under other such statutes as the
Endangered Species Act (ESA), Clean Water Act, the National
Environmental Policy Act (NEPA), the Fish and Wildlife Coordination
Act, the Federal Power Act, and the Rivers and Harbor Act. Combining
habitat consultations for multiple laws minimizes possible conflicts
between and redundancy in meeting the implementation requirements of
those laws. Wherever possible, NMFS will also combine EFH consultations
for multiple different projects in order to reduce the regulatory
burden of consultation.
Comment 9: Potential effects of municipal wastewater discharge were
too general, and, thus, not accurately described in Amendment 11.
Furthermore, conservation measures suggested for wastewater discharge,
such as ``improved treatment of sewage,'' are unnecessary and
unfeasible, and therefore inappropriate for inclusion in the EFH
portion of Amendment 11.
Response: NMFS recognizes that wastewater discharge and water
quality standards are already regulated through laws other than the
Magnuson-Stevens Act, and that those laws require implementation of a
variety of conservation measures. However, as stated in the response to
Comment 8, Magnuson-Stevens Act amendments to FMPs must identify
activities that may adversely affect EFH quantity or quality, and must
further describe options to avoid, minimize, or compensate for those
effects. The feasibility of implementing particular conservation
measures to avoid, minimize, or compensate for the effects of non-
fishing activities on EFH will vary in different areas of the Pacific
Coast, depending on the regulatory requirements currently in place for
those areas.
Comment 10: The EFH provision is not complete. It does not include
any specific measures to reduce the impacts of fishing on EFH. The EFH
section lacks the following required elements: (1) identification of
habitat areas of particular concern (HAPCs) to help guide the
application of habitat protection measures; and (2) adoption of
specific and identifiable conservation and management measures to
protect habitat from the impacts of harmful fishing practices, such as
restrictions on gear or fishing practices, time or area closures, and
no-take reserves to preserve habitat or provide base-line information.
Response: Identifying HAPCs is not a required element in
implementing the EFH provisions of the Magnuson-Stevens Act. The NMFS
interim final rule (62 FR 66531, December 18, 1997; 50 CFR Part 600
subparts J and K) states at Sec. 600.815(a)(9), in part, ``FMPs should
identify HAPCs within EFH.'' Identifying HAPCs is NMFS' highest habitat
research priority for Pacific Coast groundfish. NMFS anticipates that
the Council will incorporate HAPCs into its EFH designations as soon as
adequate information is available. Identifying HAPCs should also
strengthen EFH description information for several key species managed
by the FMP.
In addition to projects that identify HAPCs, NMFS has been working
to incorporate EFH information into geographic information system
databases, to better map habitats used by Pacific Coast groundfish.
NMFS is
[[Page 49098]]
also focusing Pacific Coast research on the effects of fishing gear on
EFH, and on the habitat needs of different rockfish species
assemblages. The NMFS Southwest Fisheries Science Center has been
studying whether there are particular rockfish habitats that are
already inaccessible to fishing gear, and if so, whether those areas
could be used as unaltered habitat baselines for research into the
effects of fishing gear on rockfish habitat. Additionally, NMFS is
working in partnership with its sister agency, the National Ocean
Service, which manages U.S. National Marine Sanctuaries, to conduct
habitat surveys of the ocean floor through the use of human-operated
and remotely-operated submersible vehicles. All of these efforts, in
combination with the research work of other public agencies, academic
and private institutions, should greatly improve the level of
information available on groundfish EFH. The Magnuson-Stevens Act
provisions on EFH have created the impetus to move these projects
forward.
At 16 U.S.C. 1853(a)(7), the Magnuson-Stevens Act requires that
FMPs include practicable measures that minimize to the extent
practicable the adverse effects of fishing on EFH. Amendment 11
includes a consideration of how the effects of fishing activities on
EFH could be minimized and provides a framework for the Council to
implement future management measures to protect EFH. Through this
framework, the Council has already begun investigations into measures
that would reduce the effects of fishing gear on EFH, including time
and area closures to protect overfished species' habitat, gear
alterations to minimize bycatch and habitat damage, and no-take marine
reserves. Amendment 11 also describes the dearth of information on the
interaction between groundfish fishing gear and Pacific coast
groundfish habitat. There is a great deal of uncertainty about the
effects of fishing gear on EFH. NMFS and other agencies are working on
defining those effects so that the Council may properly evaluate what
management measures may be practicable and effective in protecting EFH.
NMFS and the Council consider Amendment 11 to be a first step in the
development of practicable management measures that minimize the
effects of fishing gear on EFH. NMFS will be working with the Council
and encouraging swift progress in this area.
Comment 11: The EFH section does not adequately conduct an
assessment of the potential adverse effects of all fishing equipment
types used in waters described as EFH. The amendment cites lack of
information on the effects of fishing gears on the habitat of Pacific
Coast groundfish; however, we question why research from Georges Bank
that shows that fishing gear that scrapes the bottom and has
detrimental effects on benthic habitats would not be applicable to
Pacific Coast groundfish habitat.
Response: The EFH portion of Amendment 11 does contain an
assessment of potential adverse impacts of all fishing equipment types
used in waters managed by the FMP. While describing these potential
adverse effects based on information from other parts of the world,
this assessment also discusses the dearth of information specific to
Pacific Coast groundfish habitat. Georges Bank, a shallow plain on the
continental shelf off eastern New England, is a different type of
habitat from the rocky, high-relief habitat off the Pacific coast.
Fishing strategies and gears used in Georges Bank are also quite
different from fishing strategies off the Pacific coast. For example,
there are no vessels using dredge gear in the Pacific Coast EEZ, and
there are far fewer bottom trawlers operating off the Pacific coast
than off the New England coast. As stated in the response to Comment
10, fishing effects on Pacific Coast groundfish EFH is a NMFS EFH
research priority, and the Council has initiated an effort through its
legal gear committee to begin considering changes to fishing gear to
protect sensitive EFH.
Comment 12: The Council has neglected to evaluate the loss of prey
species as an adverse effect on EFH and on a managed species. An
evaluation of adverse effects from fishing activities must investigate
whether and to what extent loss of prey from direct or indirect (i.e.,
bycatch) fishing activities is adversely affecting the feeding EFH of
managed species.
Response: An evaluation of prey species stock status is not
required for implementing the EFH provisions of the Magnuson-Stevens
Act. The NMFS interim final rule (62 FR 66531, December 18, 1997)
states at Sec. 600.815(a)(8), in part, ``FMPs should identify the major
prey species for the species in the FMU and generally describe the
location of prey species' habitat.'' Given the time constraints of
meeting the October 1998 Magnuson-Stevens Act deadline for amendment
approval, and the fact that there are 82 groundfish species in the
Pacific Coast Groundfish FMP's fishery management unit, the Council
chose to focus its efforts on required EFH elements. A description of
EFH for 82 different groundfish species necessarily includes a great
deal of marine habitat that is used both by managed species and by the
prey of managed species.
Comment 13: Finalizing EFH amendments to the Pacific Coast
Groundfish FMP can await revision of the NMFS interim final regulations
and guidelines, which is being vigorously pursued. Amending FMPs in
advance of that reform will require redoing the process later, and is
likely to lead only to further disagreement and confusion in the
meantime.
Response: Section 108(b) of the SFA required that regional fishery
management councils submit FMP amendments to the Secretary implementing
the SFA amendments to the Magnuson-Stevens Act by October 11, 1998. If
the NMFS interim final regulations on implementing EFH are revised in
the future, FMPs will reflect those changes as necessary. Additionally,
the interim final rule recommends at Sec. 600.815(11) that the Councils
conduct a complete review of the EFH provisions of their FMPs at least
once every 5 years.
Comments on the Environmental Assessment (EA)
Comment 14: The EA does not adequately evaluate previous relevant
actions (such as NMFS having approved excessively high total allowable
catches in past years); future relevant actions; and other direct,
indirect, and cumulative ecological and economic effects of the
selected recommendations in Amendment 11. The EA does not proceed from
an appropriate baseline of information--a healthy ecosystem and a
healthy fishery, one that has not been so overexploited as to have
caused stocks to be overfished or to be approaching an overfished
condition.
Response: The Amendment 11 EA did consider the Council's previous
relevant actions, proposed future relevant actions, and the effects of
actions recommended by Amendment 11, while also discussing the benefits
and/or detractions of taking those actions. The current evaluations of
past actions are what have shown us that harvest levels on some species
have been unsustainably high. The Council's management actions are
always based on the most recent available information, including
information about and assessments of previous relevant management
actions, particularly past harvest rates. Not all future relevant
actions can be predicted, but Council decisions do take account of
their future expected activities.
Comment 15: The Amendment 11 EA is inadequate as a National
Environmental Policy Act document. It does not contain an adequate
range of
[[Page 49099]]
alternatives for designating EFH. We found neither a discussion of
environmental impacts that might result from the amendment's EFH
provisions, nor a Regulatory Impact Review (RIR) analysis.
Socioeconomic impacts on non-fishing entities and communities are
otherwise ignored, with the erroneous assertion that the action
proposed is simply to describe and identify EFH for FMP species, which,
in and of itself, will have no economic impact. An Environmental Impact
Statement (EIS) must be prepared to address the potentially huge
effects on the human environment of the pervasive and cumbersome EFH
program reflected in the proposed amendment.
Response: NMFS disagrees. Operating under Magnuson-Stevens Act
requirements to identify EFH and to describe fishing and non-fishing
activities that may affect EFH, the Council considered the sum of the
available information on groundfish habitat. The Council did not have
the option of waiting to designate EFH until the scientific community
builds a thorough database for all of the species managed under the
groundfish FMP. As explained in the response to Comment 8, the Council
does not have regulatory authority over non-fishing activities
affecting groundfish EFH. Also explained in the response to Comment 8,
any consultation activities resulting from the designation of Pacific
Coast groundfish EFH will be conducted between NMFS and other Federal
or state agencies, not between NMFS and private entities. The RIR in
Amendment 11 focuses on fishery regulatory activity because the Council
addresses fishing activities in the Pacific Coast EEZ.
Amendment 11 Provisions to Provide Fish as Compensation for
Participation in Resource Surveys
The Magnuson-Stevens Act authorizes the Secretary to use the
private sector to provide vessels, equipment, and services necessary to
survey fishery resources and to pay for these surveys through the sale
of fish taken during the survey or, if the quality or amount of fish is
not adequate, on a subsequent commercial fishing trip (see
Sec. 402(e)). Section 303(b)(11) of the Magnuson-Stevens Act further
enables the Secretary to ``reserve a portion of the allowable
biological catch of the fishery for use in scientific research.''
The fishing industry, environmental groups, and NMFS have actively
explored various ways to expand and improve information used to manage
the groundfish fishery and to involve the fishing industry in gathering
that information. Amendment 11 includes a provision to allow NMFS to
use fish as compensation for fishers who participate in resource
surveys. The preamble to the proposed rule to implement this provision
(February 10, 1999, 64 FR 6597) provided a complete discussion of how
owners of chartered vessels could be compensated for participation in
resource surveys, of how commercial fishing vessel operations could be
compensated for collecting resource information, of competitive bid
solicitation, of scientific protocols for sample retention, of the
issuance process for compensation exempted fishing permits, and of how
compensation fish will be accounted for in the Council's annual process
of setting ABCs and OYs. During the public comment period on this
action, NMFS did not receive any comments addressing this portion of
the proposed rule. There are no changes from the proposed rule to the
regulatory text on compensation fishing.
Regulatory Definitions of Amendment 11 Terms, Comment and Response,
Change from the Proposed Rule
Amendment 11 modified the FMP definitions of several terms,
including terms used in groundfish regulations. In the proposed rule to
implement Amendment 11, NMFS proposed amending the regulatory
definitions of the terms ``specification,'' and ``processing or to
process'' to make those definitions consistent with the new Amendment
11 definitions, and proposed adding a definition for ``optimum yield.''
NMFS received one public comment on the proposed rule to implement
Amendment 11. The commenter asked that NMFS include the Amendment 11
definition of ``processor'' in the codified regulations. NMFS had not
proposed including the definition of ``processor'' in the regulations
because the current regulations do not directly regulate processor
activities. However, including it in the regulations alerts the
affected public, and provides notice to the persons who are newly
defined as processors to pay attention to future Council actions that
may affect them. Including this definition in the groundfish
regulations will not alter the effect or enforcement of current Federal
groundfish regulations. The definition of ``processor'' in Amendment 11
is, ``Processor means a person, vessel, or facility that (1) engages in
processing; or (2) receives live groundfish directly from a fishing
vessel for retail sale without further processing.'' This definition is
necessary to clarify that a person, vessel or facility that receives
live fish directly from a fishing vessel for sale without further
processing is considered a processor. This differs from previous use of
the term, which was ambiguous with respect to the receipt and
subsequent sale of live fish. Including this definition in the codified
groundfish regulations does not alter the effect or enforcement of
current Federal groundfish regulations.
Classification
The Administrator, Northwest Region, NMFS, determined that
Amendment 11 is necessary for the conservation and management of the
Pacific Coast groundfish fishery and that it is consistent with the
Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when this rule was proposed, that
this rule, if adopted as proposed, would not have a significant
economic impact on a substantial number of small entities. No comments
were received regarding this certification. As a result, a regulatory
flexibility analysis was not prepared.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) that have been approved by OMB,
under OMB Control Number 0648-0203 for Federal fishing permits.
Notwithstanding any other provision of law, no person is required to
respond to, nor shall any person be subject to a penalty for failure to
comply with, a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number. The public reporting burden for applications
for exempted fishery permits. The public reporting burden for
applications for exempted fishery permits is estimated at 1 hour per
response; the burden for reporting by exempted fishing permittees is
estimated at 30 minutes per response. These estimates include the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and revising the
collection of information. Send comments regarding this burden estimate
or any other aspect of the data collection, including suggestions for
reducing the burden, to NMFS (see ADDRESSES) and to OMB, Washington,
D.C. 20503 (ATTN: NOAA Desk Officer).
NMFS issued Biological Opinions (BOs) under the ESA on August 10,
1990, November 26, 1991, August 28,
[[Page 49100]]
1992, September 27, 1993, and May 14, 1996, pertaining to the impacts
of the groundfish fishery on Snake River spring/summer chinook, Snake
River fall chinook, Sacramento River winter chinook, and on Snake River
sockeye. The BOs concluded that implementation of the FMP for the
Pacific Coast Groundfish fishery is 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. This rule is within the scope of
these consultations. Because the impacts of this action fall within the
scope of the impacts considered in these BOs, additional consultations
on these species are not required for this action. Since the last BO,
additional species have been listed under the ESA, including: coho
salmon as threatened (Oregon coast/southern Oregon-northern California/
central California); chinook salmon as threatened (Puget Sound/lower
Columbia River/upper Willamette River) and endangered (upper Columbia
River); chum salmon as threatened (Hood Canal/Columbia River); sockeye
salmon as threatened (Ozette Lake); steelhead as threatened (middle and
lower Columbia River/Snake River Basin/upper Willamette River/central
California/south-central California) and endangered (upper Columbia
River/southern California); and, Umpqua River cutthroat trout as
endangered.
NMFS has reinitiated consultation under Section 7 of the ESA on the
Pacific Coast Groundfish fishery to consider its effect on newly listed
species. Review of the available information indicates that these
fisheries are not likely to affect listed coho, chum, sockeye,
steelhead, or cutthroat trout, as these species are rarely, if ever,
encountered in the groundfish fishery. Chinook salmon are caught
incidentally to some of the groundfish net fisheries, and those
fisheries may take chinook salmon from some of the newly listed runs.
However, all four of the newly listed chinook evolutionary significant
units are north or far-north migrating species, which greatly limits
the potential for take in the groundfish fisheries. NMFS has reviewed
the effects of groundfish management under the FMP on newly listed
Pacific salmon stocks and has determined that implementation of the
Amendment 11 final rule will not result in irretrievable or
irreversible commitments of resources that would have the effect of
foreclosing the formulation or implementation of any reasonable and
prudent alternative measures that may be developed and deemed necessary
for future implementation 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: September 2, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, 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 Sec. 660.302, the definitions ``Optimum yield'' and
``Processor'' are added in alphabetical order, and the definitions of
``Commercial harvest guideline or commercial quota'', ``Processing or
to process'', and ``Specification'' are revised to read as follows:
Sec. 660.302 Definitions.
* * * * *
Commercial harvest guideline or commercial quota means the harvest
guideline or quota after subtracting any allocation for the Pacific
Coast treaty Indian tribes, for recreational fisheries, and for
compensation fishing under Sec. 660.350. Limited entry and open access
allocations are based on the commercial harvest guideline or quota.
* * * * *
Optimum yield (OY) means the amount of fish that 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, is prescribed as such on
the basis of the MSY from the fishery, as reduced by any relevant
economic, social, or ecological factor; and, in the case of an
overfished fishery, provides for rebuilding to a level consistent with
producing the MSY in such fishery. OY may be expressed numerically (as
a harvest guideline, quota, or other specification) or non-numerically.
* * * * *
Processing or to process means the preparation or packaging of
groundfish to render it suitable for human consumption, retail sale,
industrial uses or long-term storage, including, but not limited to,
cooking, canning, smoking, salting, drying, filleting, freezing, or
rendering into meal or oil, but does not mean heading and gutting
unless additional preparation is done.
Processor means person, vessel, or facility that engages in
processing; or receives live groundfish directly from a fishing vessel
for retail sale without further processing.
* * * * *
Specification is a numerical or descriptive designation of a
management objective, including but not limited to: ABC; optimum yield;
harvest guideline; quota; limited entry or open access allocation; a
set aside or allocation for a recreational or treaty Indian fishery; an
apportionment of the above to an area, gear, season, fishery, or other
subdivision; DAP, DAH, JVP, TALFF, or incidental bycatch allowances in
foreign or joint venture fisheries.
* * * * *
3. In Sec. 660.306, paragraphs (d), (e), and (f) are revised to
read as follows:
Sec. 660.306 Prohibitions.
* * * * *
(d) Fish for groundfish in violation of any terms or conditions
attached to an EFP under Sec. 600.745 of this chapter or Sec. 660.350.
(e) Fish for groundfish using gear not authorized under
Sec. 660.322 or in violation of any terms or conditions attached to an
EFP under Sec. 660.350 or part 600 of this chapter.
(f) Take and retain, possess, or land more groundfish than
specified under Sec. 660.321 and Sec. 660.323, or under an EFP issued
under Sec. 660.350 or part 600 of this chapter.
* * * * *
4. In Sec. 660.321, paragraph (b) is revised to read as follows:
Sec. 660.321 Specifications and management measures.
* * * * *
(b) Annual actions. The Pacific Coast Groundfish fishery is managed
on a calendar year basis. Even though specifications and management
measures are announced annually, they may apply for more than 1 year.
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.
* * * * *
[[Page 49101]]
5. Section 660.350 is added to read as follows:
Sec. 660.350 Compensation with fish for collecting resource
information--exempted fishing permits off Washington, Oregon, and
California.
In addition to the reasons stated in Sec. 600.745(b)(1) of this
chapter, an EFP may be issued under this subpart G for the purpose of
compensating the owner or operator of a vessel for collecting resource
information according to a protocol approved by NMFS. NMFS may issue an
EFP allowing a vessel to retain fish as compensation in excess of trip
limits or to be exempt from other specified management measures for the
Pacific coast groundfish fishery.
(a) Compensation EFP for vessels under contract with NMFS to
conduct a resource survey. NMFS may issue an EFP to the owner or
operator of a vessel that conducted a resource survey according to a
contract with NMFS. A vessel's total compensation from all sources (in
terms of dollars or amount of fish, including fish from survey samples
or compensation fish) will be determined through normal Federal
procurement procedures. The compensation EFP will specify the maximum
amount or value of fish the vessel may take and retain after the
resource survey is completed.
(1) Competitive offers. NMFS may initiate a competitive
solicitation (request for proposals or RFP) to select vessels to
conduct resource surveys that use fish as full or partial compensation,
following normal Federal procurement procedures.
(2) Consultation and approval. At a Council meeting, NMFS will
consult with the Council and receive public comment on upcoming
resource surveys to be conducted if groundfish could be used as whole
or partial compensation. Generally, compensation fish would be similar
to surveyed species, but there may be reasons to provide payment with
healthier, more abundant, less restricted stocks, or more easily
targeted species. For example, NMFS may decline to pay a vessel with
species that are, or are expected to be, overfished, or that are
subject to overfishing, or that are unavoidably caught with species
that are overfished or subject to overfishing. NMFS may also consider
levels of discards, bycatch, and other factors. If the Council does not
approve providing whole or partial compensation for the conduct of a
survey, NMFS will not use fish, other than fish taken during the
scientific research, as compensation for that survey. For each
proposal, NMFS will present:
(i) The maximum number of vessels expected or needed to conduct the
survey,
(ii) An estimate of the species and amount of fish likely to be
needed as compensation,
(iii) When the survey and compensation fish would be taken, and
(iv) The year in which the compensation fish would be deducted from
the ABC before determining the optimum yield (harvest guideline or
quota).
(3) Issuance of the compensation EFP. Upon successful completion of
the survey, NMFS will issue a ``compensation EFP'' to the vessel if it
has not been fully compensated. The procedures in Sec. 600.745(b)(1)
through (b)(4) of this chapter do not apply to a compensation EFP
issued under this subpart for the Pacific coast groundfish fishery (50
CFR part 660, subpart G).
(4) Terms and conditions of the compensation EFP. Conditions for
disposition of bycatch or any excess catch, for reporting the value of
the amount landed, and other appropriate terms and conditions may be
specified in the EFP. Compensation fishing must occur during the period
specified in the EFP, but no later than the end of September of the
fishing year following the survey, and must be conducted according to
the terms and conditions of the EFP.
(5) Reporting the compensation catch. The compensation EFP may
require the vessel owner or operator to keep separate records of
compensation fishing and to submit them to NMFS within a specified
period of time after the compensation fishing is completed.
(6) Accounting for the compensation catch. As part of the annual
specifications process (Sec. 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 year's ABCs before setting
the HGs or quotas. Fish authorized in an EFP too late in the year to be
deducted from the following year's ABC will be accounted for in the
next management cycle practicable.
(b) Compensation for commercial vessels collecting resource
information under a standard EFP. NMFS may issue an EFP to allow a
commercial fishing vessel to take and retain fish in excess of current
management limits for the purpose of collecting resource information
(Sec. 600.745(b) of this chapter). The EFP may include a compensation
clause that allows the participating vessel to be compensated with fish
for its efforts to collect resource information according to NMFS'
approved protocol. If compensation with fish is requested in an EFP
application, or proposed by NMFS, the following provisions apply in
addition to those at Sec. 600.745(b) of this chapter.
(1) Application. In addition to the requirements in Sec. 600.745(b)
of this chapter, application for an EFP with a compensation clause must
clearly state whether a vessel's participation is contingent upon
compensation with groundfish and, if so, the minimum amount (in metric
tons, round weight) and the species. As with other EFPs issued under
Sec. 600.745 of this chapter, the application may be submitted by any
individual, including a state fishery management agency or other
research institution.
(2) Denial. In addition to the reasons stated in
Sec. 600.745(b)(3)(iii) of this chapter, the application will be denied
if the requested compensation fishery, species, or amount is
unacceptable for reasons such as, but not limited to, the following:
NMFS concludes the value of the resource information is not
commensurate with the value of the compensation fish; the proposed
compensation involves species that are (or are expected to be)
overfished or subject to overfishing, fishing in times or areas where
fishing is otherwise prohibited or severely restricted, or fishing for
species that would involve unavoidable bycatch of species that are
overfished or subject to overfishing; or NMFS concludes the information
can reasonably be obtained at a less cost to the resource.
(3) Window period for other applications. If the RA or designee
agrees that compensation should be considered, and that more than a
minor amount would be used as compensation, then a window period will
be announced in the Federal Register during which additional
participants will have an opportunity to apply. This notification would
be made at the same time as announcement of receipt of the application
and request for comments required under Sec. 660.745(b). If there are
more qualified applicants than needed for a particular time and area,
NMFS will choose among the qualified vessels, either randomly, in order
of receipt of the completed application, or by other impartial
selection methods. If the permit applicant is a state, university, or
Federal entity other than NMFS, and NMFS approves the selection method,
the permit applicant may choose among the qualified vessels, either
randomly, in order of receipt of the vessel application, or by other
impartial selection methods.
[[Page 49102]]
(4) Terms and conditions. The EFP will specify the amounts that may
be taken as scientific samples and as compensation, the time period
during which the compensation fishing must occur, management measures
that NMFS will waive for a vessel fishing under the EFP, and other
terms and conditions appropriate to the fishery and the collection of
resource information. NMFS may require compensation fishing to occur on
the same trip that the resource information is collected.
(5) Accounting for the catch. Samples taken under this EFP, as well
as any compensation fish, count toward the current year's catch or
landings.
[FR Doc. 99-23486 Filed 9-9-99; 8:45 am]
BILLING CODE 3510-22-F