Magnuson-Stevens Act Provisions; Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 040830250-4250-01; I.D. 081304C]

RIN 0648-AS27

Magnuson-Stevens Act Provisions; Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes a rule to implement the 2005-2006 fishery specifications and management measures for groundfish taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California. The proposed rule includes the levels of the acceptable biological catch (ABC) and optimum yields (OYs). The commercial OYs (the total catch OYs reduced by tribal allocations and by amounts expected to be taken in recreational and resource survey compensation fisheries) proposed in this rule would be allocated between the limited entry and open access fisheries and between different sectors of the limited entry fleet. Proposed management measures for 2005-2006 are intended to: achieve but not exceed OYs; prevent overfishing; rebuild overfished species; reduce and minimize the bycatch and discard of overfished and depleted stocks; provide equitable harvest opportunity for the recreational and commercial fishing sectors; and, within the commercial fisheries, achieve harvest guidelines and limited entry and open access allocations to the extent practicable.

DATES:

Comments on all issues except on the 2006 Oregon commercial/recreational black rockfish harvest guidelines must be received no later than 5 p.m., local time (l.t.,) on October 21, 2004. Comments on the 2006 Oregon commercial/recreational black rockfish harvest guidelines must be received no later than 5 p.m., l.t. on December 30, 2004.

ADDRESSES:

You may submit comments, identified by I.D. 081304C, by any of the following methods:

• E-mail:

Groundfish0506.nwr@noaa.gov

Include 081304C in the subject line of the message.

• Federal eRulemaking Portal:

http://www.regulations.gov.

Follow the instructions for submitting comments.

• Fax: 206-526-6736, Attn: Yvonne deReynier

• Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Yvonne deReynier.

Information relevant to this proposed rule, which includes a draft environmental impact statement, a regulatory impact review, and an initial regulatory flexibility analysis (IRFA) are available for public review during business hours at the office of the Pacific Fishery Management Council (Council), at 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280. Copies of additional reports referred to in this document may also be obtained from the Council.

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 rule also is accessible via the Internet at the Office of the

Federal Register

's website at

http://www.gpoaccess.gov/fr/index.html

. Background information and documents are available at the NMFS Northwest Region website at

http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm.

and at the Council's website at

http://www.pcouncil.org

.

Background

The Pacific Coast Groundfish Fishery Management Plan (FMP) requires the Council to set harvest specifications and management measures for groundfish at least biennially. In some cases, the Council may choose to set harvest specifications and management measures for some species, such as Pacific whiting, on an annual basis. For most of the 80+ species managed under the FMP, however, fishery specifications will be set biennially. The Council moved to this biennial management process via Amendment 17 to the FMP, which NMFS approved on August 19, 2003. The first biennial fishing period to which this process applies is January 1, 2005, through December 31, 2006.

In 2004 and prior years, the groundfish harvest specifications and management measures were implemented via publication in the

Federal Register

. Similar to 2004, the 2005-2006 harvest specifications and management measures will be implemented through a final rule published in the

Federal Register

. However, that final rule will codify the harvest specifications and management measures in Federal regulations at 50 CFR part 660, subpart G for Pacific Coast groundfish, not simply via publication in the

Federal Register

itself. In order to ensure that the agency would have space in the codified regulations for the groundfish harvest specifications and management measures, NMFS published a correcting amendment at 69 FR 42345 (July 15, 2004) to reorganize those regulations. As a result of this reorganization, more broadly applicable management measures are found in 50 CFR 660.370, followed by season frameworks and regulations for black rockfish, 660.373. Groundfish harvest specifications for 2005 and beyond will be found in § 660.380, followed by fishery-specific management measures in §§ 660.381 through 660.385. Coordinates delineating the Groundfish Conservation Areas (GCAs) are found in §§ 660.390 through 660.394. Commercial fisheries allocations, which were formerly codified in § 660.323(b)(4) and § 660.332, are now found in §§ 660.320 through 660.323. As in 2004 and prior years, the Council's ABC and OY policies, new stock assessments since the setting of the 2004 specifications, bycatch reduction measures, fishery-specific management measures, and other issues related to this 2005-2006 management package are discussed later in the preamble to this proposed rule.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the FMP require that NMFS implement actions to prevent overfishing and to rebuild overfished stocks. Specifications and management measures proposed for 2005-2006 are designed to rebuild overfished stocks consistent with statutory requirements through constraining direct and incidental mortality, and to achieve as much of the OYs as practicable for healthier groundfish stocks managed under the FMP. In order to protect overfished species, allowable harvest levels of healthy species will only be achieved where such harvest will not deter rebuilding of overfished and depleted stocks. Commercial management measures for 2005-2006 include landings limits, size limits, gear

restrictions, and time/area closures. Recreational management measures include bag limits, size limits, gear restrictions, and time/area closures. NMFS is proposing to continue the coastwide depth-based management program that it introduced in 2003, which closes portions of the continental shelf to fishing for groundfish and to fishing for many non-groundfish species in fisheries that take groundfish incidentally. These closures are intended to protect and rebuild overfished groundfish species.

ABC Policy and Overfished Species Rebuilding

The Council assesses the biological condition of the Pacific Coast groundfish fishery and develops annual estimates of the acceptable biological catch (ABC) for major groundfish stocks and identifies the annual harvest levels or OYs for the species or species groups that it manages. When setting the 2005 and 2006 ABCs, the Council maintained a policy of using a default harvest rate as a proxy for the fishing mortality rate that is expected to achieve the maximum sustainable yield (FMSY). The OYs were set at levels that are expected to prevent overfishing; they are equal to or less than the ABCs. For overfished species, the OYs were set to allow each stock to rebuild within a period of time specific to that stock.

The ABC for a species or species group is generally derived by multiplying the harvest rate proxy by the current estimated biomass. In 2005 and 2006, the following default harvest rate proxies, based on the Council's Scientific and Statistical Committee (SSC) recommendations, were used: F40% for flatfish and Pacific Whiting, F50% for rockfish (including thornyheads), and F45% for other groundfish such as sablefish and lingcod. A rate of F40% may be explained as that which reduces spawning potential per female to 40 percent of what it would have been under natural conditions (if there were no mortality due to fishing), and is therefore a more aggressive rate than F45% or F50%. The FMP allows default harvest rate proxies to be modified as scientific knowledge improves for a particular species.

A fishing mortality or harvest rate will mean different things for different stocks, depending on the productivity of a particular species. For fast growing species (those with individuals that mature quickly and produce many young that survive to an age where they are caught in the fishery) a higher fishing mortality rate may be used, such as F40%. Fishing mortality rate policies must account for several complicating factors, including the capacity of mature individuals to produce young over time and the optimal stock size necessary for the highest level of productivity within that stock.

For some groundfish species, there was little or no detailed biological data available on which to base ABCs, and therefore only rudimentary stock assessments were prepared. For other species, the ABC levels were established on the basis of historical landings. As described below, a precautionary approach has been taken in setting ABCs and OYs for species with no, or only rudimentary, stock assessments.

For stocks with less rigorous or rudimentary stock assessments, the Council's policy had been to assume that fishing mortality was equal to natural mortality (F=M); however, further analysis by the SSC in 2000 established that assuming fishing mortality to be 75 percent of natural mortality (F=0.75M) was a more appropriate risk-neutral proxy for fishing mortality. This proxy was therefore adopted by the Council to establish ABCs for stocks with less rigorous assessments. As described below, a precautionary approach has been taken in setting ABCs and OYs for species with no, or only rudimentary, stock assessments.

The 2005 and 2006 ABCs are based on the best scientific information available to the Council at its April and June 2004 meetings. The ABCs in Tables 1 and 2 represent total fishing mortality (landed catch plus discards). Where the stock assessments included Canadian waters, the ABCs are appropriately reduced from the coastwide ABC, and apply only to U.S. waters. Stock assessment information considered in determining the ABCs may be obtained from the Council. Stock assessment documents and related reports were made available to the public prior to the Council's April 2004 meeting. Additional information on the groundfish stocks may be found in the EIS prepared for this action and in documents that were available at the April and June 2004 Council meetings (see

ADDRESSES

).

OY Policy

The Council uses a precautionary policy, which was adopted in 1999, for setting OYs. The precautionary policy, referred to as the 40-10 policy, is intended to prevent species or stocks from becoming overfished. If the stock biomass is larger than the biomass needed to produce MSY (B

MSY

), the OY may be set equal to or less than ABC. The Council uses 40 percent of the unfished biomass as a default proxy for BMSY, also referred to as B

40

%%

. A stock with a current biomass between 25 percent of the unfished level and B

MSY

(the precautionary threshold) is said to be in the “precautionary zone.” The Council's 40-10 policy reduces the fishing mortality rate when a stock is at or below its precautionary threshold. The further the stock is below the precautionary threshold, the greater the reduction in OY relative to the ABC, until, at B10%, the OY would be set at zero. This is, in effect, a default rebuilding policy that will foster a more rapid return to the B

MSY

level than would fishing at the ABC level. The Council generally uses this default policy for species in the precautionary zone. For overfished species, those that have been assessed as below B

25

%%

, the Council has developed species-specific rebuilding plans. For further information on the 40-10 policy see the preamble of the final rule to implement Amendment 16-1 to the FMP (February 26, 2004, 69 FR 8861) or the FMP at Section 4.5.

The Council may recommend setting the OY higher than what the default OY harvest policy specifies, if justified, and as long as the OY does not exceed the ABC (which is set at F

MSY

), complies with the requirements of the Magnuson-Stevens Act, and is consistent with the National Standard Guidelines. On a case-by-case basis, additional precaution may be warranted if there is uncertainty in the data or a higher risk of a species being overfished. If a stock falls below 25 percent of its unfished biomass (B

25

%%

) and is declared overfished, the Magnuson-Stevens Act requires the Council to develop a rebuilding plan within one year from the declaration date. Rebuilding plans for overfished species generally have stock-specific allowable harvest rates based on a rebuilding analysis.

Based on its SSC's recommendations, the Council has used a precautionary adjustment policy that requires the OYs for those stocks with rudimentary stock assessments to be set at 75 percent of their ABCs. For further information on precautionary adjustments for rudimentarily assessed stocks, see the preamble discussion of the Annual Specification and Management Measures published on January 11, 2001 (66 FR 2338).

When determining numerical OYs for individual species and species groups for which the ABC is based on a non-quantitative assessment, the Council may apply precautionary adjustments. Since 2000, the Council has adjusted the OYs for several unassessed stocks to 50 percent of the historical average catch levels.

ABCs and OYs under Multi-year Management

A biennial management cycle adopted under Amendment 17 to the FMP, is being used to establish the 2005 and 2006 harvest specifications and management measures. At the beginning of the two year management cycle, two one-year ABCs and OYs will be adopted for each species or species group the Council proposes to manage. The annual OYs will be applied in the same manner as has been done in previous years. If an OY is not achieved or is exceeded in the first year, the underage or overage will not be transferred to the following year, as this could result in severe fishing and management problems in the second year. However, when appropriate, management measures will be adjusted in order to achieve, but not exceed, OYs the following year.

New stock assessments will be prepared during the first year of the biennial cycle. In the second year, the new assessments will be reviewed and adopted for use in the next biennial management cycle. During the fall of 2004, the Council plans to develop a process for reviewing current harvest levels in the middle of a biennial cycle based on new stock assessments information.

2005 and 2006 ABCs and OYs

The species that had ABCs and OYs in 2004 continue to have ABCs and OYs in 2005 and 2006. Changes that have been made since 2004 that affect the ABCs and OYs for 2005 and 2006 include: (1) the completion of full stock assessments for cabezon and lingcod; (2) the Council's approval of FMP Amendment 16-3, which includes rebuilding plans for widow rockfish, bocaccio, cowcod and yelloweye rockfish; (3) the signing of the U.S.-Canada catch sharing agreement for whiting and a 2004 assessment that estimates the whiting stock biomass to be above the rebuilding threshold; (4) changes in the catch distribution of canary rockfish between commercial and recreational fisheries; (5) the application of precautionary adjustments to Pacific Cod, “other flatfish” and “other fish” OYs; and (6) the adoption of state specific harvest guidelines for black rockfish.

Cabezon

The first stock assessment for cabezon was prepared in 2003 and used an age structured model fitted to data on harvest levels, abundance, and catch length. Due to differences in catch history, trends in fishing effort, and biological parameters (mainly growth rates), the coastwide stock assessment was divided into northern and southern portions with the division being made at the Oregon-California border (42° N. lat.). This division allowed state-specific data, where available, to be incorporated into the assessment. Because few data were available to assess the stock in waters north of the Oregon-California border, the Stock Assessment Team (STAT) recommended that only the southern portion of the assessment be used for 2005 and 2006 harvest specifications. North of 42° N. Lat., cabezon will continue to be managed as part of the “other fish” complex for 2005 and 2006.

Although considerable effort was taken to compile relevant data and information on cabezon, the lack of a dedicated fishery-dependent biomass index resulted in a cabezon specific assessment that differs from assessments for most other West Coast groundfish stocks. The cabezon assessment relies on fishery dependent abundance indices based on recreational CPUE, and limited information on larval abundance. Although no dedicated biomass indices exist for cabezon, the alternate data sources used in the assessment were considered sufficient for use in a stock assessment model. Various types of uncertainty resulting from limited data were recognized and dealt with through the use of sensitivity analyses.

Because of uncertainty in deriving assessment parameters for natural mortality and stock productivity, three different model scenarios in which these parameters varied were brought forward for consideration. The model variation recommended by the SSC (referred to as the “posterior distribution nine” analysis in the original assessment) was considered to be a reasonable way to incorporate uncertainty. However, the SSC indicated that a full Bayesian analysis would be preferred in the future.

At its November 2003 meeting, the Council and the SSC reviewed the results of the new stock assessment. The SSC expressed concern that the time series of recreational logbook data used in the model may have been incorrectly truncated to 1960 rather than extending back to 1947, excluding the 1947-1959 time period when cabezon harvests were highest. The SSC believed that inclusion of these data could change the model output relevant to stock depletion. Following consideration of the model, the Council recommended that the recreational logbook data be re-evaluated for the March 2004 meeting.

On February 25, 2004, the SSC held a public teleconference to review revisions to the cabezon stock assessment. The new assessment results presented by the STAT indicated that inclusion of the earlier years' data (1947-1959) did not have a major impact on the conclusions of the assessment, particularly in regard to stock depletion. For example: the 2003 spawning biomass was estimated to be 34.7 percent of the unfished biomass with the inclusion of the earlier years of logbook data and 33.4 percent with the data truncated to 1960. Because the application of the 40-10 harvest policy is linked to the percent of unfished biomass, the OY would increase from 60.5 mt to 74.5 mt with the inclusion of the earlier data (a 23-percent increase).

The STAT recommended not including the pre-1960 data, because they believed that the pre-1960 data were self-reported by the fishermen and had not been verified by independent sampling. However, the recreational logbook data from 1947-1951 for the areas between San Francisco and San Diego have been reviewed by (CDFG) and the data were found to have been very accurate (within 4 percent for all species and 10 percent for cabezon). After reviewing the available information, the SSC indicated that there was adequate evidence to believe that the pre-1960s data should be included in the assessment model. The SSC recommended, and the Council adopted for 2005 and 2006, the model runs that included the new catch data and CPUE index dating back to 1947.

For 2005 and 2006, the Council considered cabezon ABC alternatives based on the newly adopted stock assessment with the application of different harvest rate proxies. These included: a low ABC alternative of 88 mt for 2005 and a 94 mt ABC for 2006, based on a harvest rate proxy of F

50

%%

; and a high ABC alternative of 103 mt for 2005 and 108 mt for 2006, based on a harvest rate proxy of F

45

%%

.

Three alternative OYs were considered for each year. The low OY alternatives of 44 mt for 2005 and 63 mt for 2006 were based on a harvest rate proxy of F

50

%%

with the application of the 60-20 harvest policy. The 60-20 harvest policy is used by the state of California for nearshore species in which the biomass is estimated to be within their precautionary zone, below 60 percent of their unfished biomass. The 60-20 harvest policy is similar to the 40-10 harvest policy described above, in that it reduces the fishing mortality rate when a stock is at or below its precautionary threshold. The difference is that the precautionary threshold is set at 60 percent of a stocks' unfished biomass rather than at 40

percent. The OY is reduced in relation to the ABC, until, at B

20

%%

, the OY would be set at zero. The mid-range OY alternatives of 69 mt for both 2005 and for 2006 were based on a constant harvest level recommended by the California Department of Fish and Game (CDFG). The high OY alternatives of 91 mt for 2005 and 107 mt for 2006 were based on the harvest rate proxy of F

45

%%

with the application of the 40-10 harvest policy.

The Council considered these cabezon alternatives at its April 2004 meeting and recommended an ABC of 103 mt for 2005 and 108 mt for 2006, with a constant harvest OY of 69 mt for each year. Using a constant harvest level over the 2 year period is expected to help stabilize the fishery, which primarily occurs in state waters off California, and management measures.

Lingcod

A new coastwide stock assessment, based on a Coleraine statistical catch-at-age model, was prepared for lingcod in 2003. Although there appears to be no genetic difference between fish in the north and south, separate northern and southern assessment models were used to describe the population trends. The northern assessment applied to the stock in the Vancouver and Columbia areas (U.S. waters north of 43° N. lat.), and the southern assessment applied to the stock in the Eureka, Monterey, and Conception areas (U.S. waters south of 43° N. lat.). The coastwide biomass was calculated by summing the outputs of the two models. Because historical data are more sparse for the southern areas than for the northern areas, model uncertainty was higher in the south than in the north.

At the Council's November meeting, the SSC discovered that recruitment variability, a key parameter specified in the model, was mis-specified (too low) in both the northern and southern models. As a result, the recruitment values used in the rebuilding analysis were too small and suggested that the stock was rebuilding at a slower rate. Because the error in recruitment variability could have affected the STAR panel recommendation, the SSC recommended that the model be re-evaluated by the STAR panel. The SSC specifically requested that the recruitment variability parameter and the improvement in fit that accompanied the shift to dome shaped selectivity curves be evaluated. The SSC also recommended that the rebuilding analysis be recalculated using the output of the revised model. The Council adopted the SSC recommendations that the revisions be completed and reviewed by the STAR panel in time for the Council's March 2004 meeting.

On February 25, 2004, the SSC held a public tele-conference to review revisions to the lingcod stock assessment. The STAT reviewed the increase in the recruitment variable at increments of 0.1. The model fit improved as the recruitment variable increased, but deteriorated above 0.5. Overall, larger recruitment variables better accounted for the observed data, with 0.5 indicating a strong 1999 year class, consistent with catch at age data from the shelf survey and commercial fisheries. As a result of the revised assessment, the spawning stock biomass was estimated to be at 31 percent of its unfished biomass in the north and 19 percent of its unfished biomass in the south.

The STAT ran the rebuilding analysis with the new recruitment variable of 0.5, and computed coastwide rebuilding values based on the sum of the output of the two models. Rebuilding projections for the northern areas, if considered in isolation, indicate that the stock is above the rebuilt threshold of B40%. However, the southern portion of the stock has not yet rebuilt. When the total biomass is viewed coastwide, the stock is less than 1 percent below the rebuilt target of B

40

%%

.

Due to the different biological characteristics between the areas, the SSC continues to support summing the results of the two assessments to derive the coastwide value. The coastwide ABCs based on the newly adopted stock assessment are 2,922 mt (1,874 north and 1,048 south) in 2005 and 2,716 mt, (1,694 north and 1,021 south) in 2006.

The SSC recommended using different harvest rates for the two areas. When specific data are available, region-specific regulations could be beneficial to the biology of the stock. If regional differences are not recognized, overfishing could occur in the south.

The coastwide OY alternatives considered by the Council included: a low OY of 918 mt (574 mt for the north and 344 mt for the south) for 2005 and 940 mt (574 mt for the north and 366 mt for the south) for 2006; a mid-range OY of 2,588 mt (1,874 mt for the north and 714 mt for the south) for 2005 and 2,414 mt (1,694 mt for the north and 719 mt for the south)for 2006; and a high OY of 2,626 mt (1,874 mt for the north and 762 mt for the south) for 2005 and 2,459 mt (1,694 mt for the north and 764 mt for the south) for 2006. The low OY alternative, which was consistent with the lingcod rebuilding plan adopted under Amendment 16-2, was based on the harvest control rules of F=0.0531 in the north and F=0.0610 in the south and a >70 percent probability of rebuilding within the maximum allowable time (T

MAX

). The mid-range OY alternative was based on a harvest control rule of F=0.17 in the north and F=0.15 in the south and a 70 percent probability of rebuilding within T

MAX

. The high OY was based on a harvest control rule of F=0.18 in the north and F=0.16 in the south, and a 60 percent probability of rebuilding within T

MAX

.

The Council considered the alternative OYs and recommended the mid-range OY, with the modification that the OY be fixed at 2,414 mt (the 2006 value which was the lower of the two values) for both years. A constant harvest level over the two year period is expected to better stabilize the fishery and the management measures. The Council indicated that the lingcod harvest guidelines needed to be conservative because: the 1999 year class is moving through the fishery and recruitment is uncertain, there is uncertainty in catch projections and assessment, and they do not want an increase in effort in the fishery. Although lingcod is considered to be a coastwide stock, the Council indicated that the OY should be set to avoid the disproportionate catch of lingcod coming from the northern or southern areas.

The OY of 2,414 mt for both 2005 and 2006 results in the same target rebuilding year as is currently in regulation at 50 CFR 660.365(c) (69 FR 19347, April 13, 2004). However taking into account the new stock assessment, this action proposes to revise the harvest control rule from F=0.0531 to F=0.17 in the north and from F=0.061 to F=0.15 in the south. Further discussion on rebuilding measures can be found in the “Overfished Species” section of this document.

The Council recommended establishing separate northern and southern lingcod OYs, with the north-south division occurring at 42° N. lat, the Oregon-California border. Because this north-south division is different from the north-south division used in the stock assessment (43° N. lat), a formula based on the catch-per-unit-of-effort data from the Alaska Fishery Science Center's 1995-2001 shelf survey was used to estimate the proportion of lingcod in the southern assessment that is found in the area between 42° N. lat and 43° N. lat. As a result, 107 mt was deducted from the OY based on the southern stock assessment and was added to the OY based on the northern stock assessment. The resulting OYs are: 612 mt for southern area in waters off

California, and 1,801 mt for northern area waters off Washington and Oregon.

For the states to better manage their recreational fisheries to stay within their respective OYs, the Council also recommended setting recreational harvest guidelines for the same areas. With state specific harvest guidelines, each state can monitor their recreational catches and adjust state management measures to keep the harvests within the harvest guideline. For the recreational fisheries in the northern area the harvest guideline will be 206 mt in 2005 and 239 mt in 2006. For the recreational fisheries in the southern area, the harvest guideline will be 422 mt in both 2005 and 2006. For further detail see Tables 1 and 2 and the associated footnotes.

For the commercial fishery harvest guideline, the amount of lingcod remaining in the northern and southern OY after the deductions for the recreational harvest guideline, will be combined into a single coastwide harvest guideline. The commercial fisheries will then be managed on a coastwide basis.

Widow Rockfish

Widow rockfish was declared an overfished species in 2001. In 2003, a coastwide stock assessment and rebuilding analysis were prepared and the widow rockfish biomass was estimated to be at 24.7 percent of its unfished biomass coastwide in 2002.

Three different model scenarios, which used different power coefficients to estimate juvenile mortality in survey data, were the basis for the 2005 and 2006 ABC and OY alternatives. A juvenile mortality power coefficient is a measure for estimating the amount of juvenile fish that could mature and enter the fishery in the future. The three model scenarios chosen by the SSC were called models 7, 8 (the base model), and 9. The use of power coefficients for estimating juvenile mortality using the midwater juvenile trawl survey data was discussed by the SSC. The SSC concluded that the different values were equally likely, leaving no statistical basis for choosing among the three different models. However, the SSC determined that there was a biological basis for recommending a power coefficient range between the values of 2.0 and 4.0.

The ABC alternatives were based on the different model scenarios discussed above with the application of an F

50

%%

F

MSY

proxy. The ABCs for 2005 were: 2,833 mt from model 7 with a power coefficient of 2.0, 3,218 mt from model 8 with a power coefficient of 3.0, and 3,668 mt from model 9 with a power coefficient of 4.0. The ABCs for 2006 were: 2,670 mt from model 7 with a power coefficient of 2.0, 3,059 mt from model 8 with a power coefficient of 3.0, and 3,510 mt from model 9 with a power coefficient of 4.0.

The OYs considered by the Council were consistent with the rebuilding plan parameters adopted for widow rockfish under Amendment 16-3. Amendment 16-3 considered rebuilding plan alternatives that included each of the three model scenarios (7, 8, & 9) and an array of PMAX probabilities, between 60 and 90 percent.

The OY alternatives considered by the Council for 2005 and 2006 were as follows: a low OY of 0 mt for both years based on model 7 with a 90 percent probability of rebuilding by T

MAX

, a target rebuilding year of 2030, and with a harvest rate of F=0; the mid-range OYs of 285 mt for 2005 and 289 mt for 2006 based on model 8 with a 60 percent probability of rebuilding by TMAX, a target rebuilding year of 2038, and with a harvest rate of F=0.0093; and the high OYs of 505 mt for 2005 and 513 mt for 2006 based on model 9 with a 60 percent probability of rebuilding by T

MAX

, a target rebuilding year of 2034, and with a harvest rate of F=0.0146. After consideration of the widow rockfish rebuilding plan under Amendment 16-3, the Council recommended adopting the ABC and OYs resulting from the application of model 8 and a T

MAX

of 60 percent. The recommended ABCs were 3,218 mt for 2005 and 3,059 mt for 2006 and the recommended OYs were 285 mt for 2005 and 289 mt for 2006.

Amendment 16-3 to the FMP was adopted by the Council in April 2004. NMFS is in the process of developing final regulations to implement widow rockfish rebuilding parameters in Federal regulations. The rebuilding plan establishes a target rebuilding year of 2038 and a harvest control rule of F=0.0093. A proposed rule was published on July 7, 2004 (69 FR 40851) and will be followed by a final rule in autumn 2004. The 2005 OY of 285 mt and the 2006 OY of 289 mt results in the same target rebuilding year and harvest control rule as proposed in the widow rockfish rebuilding plan. Further discussion on rebuilding measures may be found in the “Overfished Species” section of this document.

Bocaccio

The ABC and OY alternatives considered for 2005 and 2006 were based on the most recent bocaccio assessment, which was prepared in 2003 for the Conception and Monterey areas. The bocaccio rockfish spawning stock biomass was estimated to be at 7.4 percent of its unfished biomass in the Monterey and Conception areas in 2002.

In 2003, two different base-run assessment models were developed to address contradictions between the recreational data, which showed a substantial increase in abundance of bocaccio, and the triennial survey data, which has remained relatively flat and showed little change in abundance in the last three years of assessment data. The first model (STARb1) omitted data from the triennial survey and held the estimated recruitment constant to 1959, whereas the second model (STARb2) omitted the recreational CPUE data and held the recruitment constant to 1969. In addition, a third model (STATc), was recommended by the assessment author after the STAR panel review had been completed and reviewed by Statistical Assessment Team. The STATc model combined the attributes of both models and both data sources, the estimated recruitment held constant to 1959, and placing a lower emphasis on the stock-recruitment relationship. For 2004, after an in-depth discussion that considered the trade offs among the alternative model approaches and other factors, the SSC concluded that an intermediate alternative warranted consideration, and that the STATc model was a reasonable approach.

The Council considered three ABCs for each year based on the different stock assessment models with the application of an F

MSY

proxy of F

50

%%

. First, the low ABC alternatives of 447 mt for 2005 and 443 mt for 2006, which were based on the STARb2 model. Second, the mid-range ABC alternatives of 566 mt for 2005 and 549 mt for 2006 which were based on the STATc model. Third, the high ABC alternatives value of 745 mt for 2005 and 733 mt for 2006 which were from the STARb1 model. The Council recommended the mid-range ABC of 566 mt for 2005 and 549 mt for 2006.

NMFS prepared a bocaccio rebuilding analysis for the Council in 2004. The OYs considered by the Council were based on the results of the 2003 assessment and the rebuilding plans proposed under Amendment 16-3. The Council considered a range of OYs for 2005 and 2006 that was consistent with the range of alternatives being considered for the bocaccio rebuilding plan under Amendment 16-3. The rebuilding plan alternatives were based on different base-run assessment models and a range of probabilities, between 60 and 90 percent, of rebuilding within the maximum allowable time (T

MAX

). The following OY alternatives were considered by the Council: the low OYs

of 134 mt for 2005 and 140 mt for 2006, based on the STARb2 model with an 90 percent probability of rebuilding by T

MAX

; the mid-range OYs of 307 mt for 2005 and 308 mt for 2006, based on the STATc model with an 70 percent probability of rebuilding by TMAX; and the high OYs of 713 mt for 2005 and 704 mt for 2006, based on the STARb1 model with an 60 percent probability of rebuilding by T

MAX

.

After consideration of the bocaccio rebuilding plan under Amendment 16-3 to the FMP, the Council recommended a rebuilding plan, based on the STATc model, with a 70 percent probability of rebuilding the stock to its spawning stock biomass by 2032 (T

MAX

) with a targetrebuilding year of 2032, and a harvest control rule of F=0.0498. The resulting ABCs, which are equivalent to the mid-range alternative above, are 566 mt for 2005 and 549 mt for 2006. The resulting OYs are 307 mt for 2005 and 289 mt for 2006. The final rule to implement Amendment 16-3 will implement in Federal regulations rebuilding parameters for bocaccio that establish a target rebuilding year (2023) and a harvest control rule (F=0.0093).

Cowcod

The 2005 and 2006 ABC and OY alternatives for cowcod were based on the most recent stock assessment which was prepared in 1999, for the Conception area. In 1999, the cowcod spawning stock biomass was estimated to be at less than 10 percent of its unfished biomass and was therefore declared as overfished on January 4, 2000 (65 FR 221).

In 2003, a rebuilding review was conducted for cowcod. This review thoroughly examined the recreational and commercial fishery removals in relation to the ABC and OY levels that were established for rebuilding. The review concluded that the total removals of cowcod have declined in accordance with the rebuilding-based harvest specifications that were first established in 2000. In addition, fishery closures in the Cowcod Conservation Areas (CCAs) were expected to add further protection to the stock. However, data were not available from the CCA areas to estimate the benefit of these closures to the cowcod stock. For further information on the 2003 rebuilding review for cowcod, see the preamble discussion of the proposed Annual Specifications and Management Measures published on January 8, 2004 (69 FR 1380).

The cowcod ABC in the Conception area (5 mt) is based on the 1999 assessment, while the ABC for the Monterey (19 mt) is based on average landings from 1993-1997. The OYs considered by the Council were based the 2000 rebuilding analysis and the rebuilding plans proposed under Amendment 16-3. At the Council's April 2004 meeting, the 2005 and 2006 harvest specifications for cowcod were considered at the same time as the cowcod rebuilding plan under Amendment 16-3. The range of OYs for 2005 and 2006 were consistent with the parameters adopted for the cowcod rebuilding plan under Amendment 16-3. The low OY alternative was 4.2 mt (2.1 mt in the Monterey area and 2.1 mt in the Conception area) for both 2005 and 2006 and was based on a 60 percent probability of rebuilding by T

MAX

. The high OY was 4.8 mt (2.4 mt in the Monterey area and 2.4 mt in the Conception area) for both 2005 and 2006 and was based on a 55 percent probability of rebuilding by T

MAX

. Due to limited data and the limitations of the stock assessment model, alternatives with rebuilding probabilities greater than 60 percent could not be derived. The final rule to implement Amendment 16-3 will implement in Federal regulations rebuilding parameters for cowcod that establish a target rebuilding year as 2090, which is consistent with a 60 percent probability of rebuilding the stock to Bmsy by T

MAX

(2099), and a harvest control rule of F=0.009. Further discussion on rebuilding measures can be found in the “Overfished Species” section of this document.

Yelloweye Rockfish

A full stock assessment was last prepared for yelloweye rockfish in 2001 and was updated for 2002. In 2002 following the assessment update, yelloweye rockfish was believed to be at 24.1 percent of its unfished biomass coastwide. On January 11, 2002 yelloweye rockfish was declared overfished (67 FR 1555), after which NMFS prepared a yelloweye rockfish rebuilding analysis.

The 2005 yelloweye rockfish ABC of 54 mt and the 2006 ABC of 55 mt were projected from the 2002 stock assessment update with the application of a harvest rate proxy of F

50%

. The OYs considered by the Council were based on the 2002 revised rebuilding analysis (August 2002) and the rebuilding plan proposed under Amendment 16-3. The Council considered the following range of OYs for 2005 and 2006 that encompassed the range of rebuilding parameters being considered for the yelloweye rockfish rebuilding plan under Amendment 16-3: the low OYs of 24 mt for 2005 and 25 mt for 2006, which were based on a 90 percent probability of rebuilding by TMAX (2071); the mid-range OYs of 27 mt for 2005 and 28 mt for 2006, which were based on a 70 percent probability of rebuilding by TMAX; and the high OYs of 28 mt for 2005 and 29 mt for 2006, which were based on a 60 percent probability of rebuilding by T

MAX

.

At the Council's April 2004 meeting, the 2005 and 2006 harvest specifications for yelloweye rockfish were considered at the same time as the yelloweye rockfish rebuilding plan under Amendment 16-3. The rebuilding plan recommended by the Council would specify that the target rebuilding year (2058) be consistent with a 80 percent probability of rebuilding the stock to Bmsy by T

MAX

(2071), and a harvest control rule of F=0.0153 be applied to determine the annual OYs. When the rebuilding parameters recommended under Amendment 16-3 were applied, the resulting OYs were 26 mt for 2005 and 27 mt for 2006 (the mid range OY), which falls between the low and mid-range OYs initially considered by the Council. Further discussion on rebuilding measures may be found in the “Overfished Species” section of this document.

Pacific Whiting

In general, whiting is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) patterns and a relatively short life span when compared to other overfished groundfish species. In 1987, the whiting biomass was at a historical high level due to an exceptionally large number of fish that spawned in 1980 and 1984 (fish spawned during a particular year are referred to as a year class). As these large year classes of fish passed through the population and were replaced by moderate sized year classes, the stock declined. The whiting stock stabilized between 1995 and 1997, but then declined to its lowest level in 2001.

In 2002, a whiting stock assessment was prepared. It estimated the female spawning biomass to be less than 20 percent of the unfished biomass. As a result of the 2002 assessment, the whiting stock was believed to be below the overfished threshold in 2001 and was, therefore, declared overfished on April 15, 2002 (67 FR 18117). Since 2001, while the whiting stock was managed under the 40-10 default harvest policy discussed earlier, the biomass increased substantially as a strong 1999 year class had matured and entered the spawning population.

An age-structured assessment model was used to prepare a new coastwide stock assessment in 2004. The stock

assessment was examined by a joint U.S./Canada Pacific Hake (Whiting) Stock Assessment Review (STAR) panel in early February of 2004 and considered to be complete and suitable for use by the Council and its advisory bodies for ABC projections. However, the amount of whiting that the hydroacoustic survey was able to measure relative to the total whiting in the surveyed area (survey catchability coefficient or “q”) was identified as a major source of uncertainty in the stock assessment.

At the Council's March 2004 meeting, two sets of ABC/OY projections, with different assumptions about the survey catchability, were brought forward for decision making. This range of projections was intended to represent a plausible range of the stock's status. The more optimistic or less risk averse model run assumed that q equaled 0.6, while the less optimistic or more risk averse model run assumed that q equaled 1.0. A catchability coefficient of 1.0 is the value that had been used in the previous assessments.

As a result of the new whiting stock assessment, the estimated abundance of whiting has increased substantially since the last assessment. The stock was estimated to be 47 percent of its unfished biomass in 2003 (2.7 million mt of age 3+ fish) when a survey catchability coefficient of 1.0 was applied and at 51 percent (4.2 million mt of age 3+ fish) of its unfished biomass in 2003 when a survey catchability coefficient of 0.6 was applied. Under both scenarios, the whiting biomass in 2003 was estimated to be above the target rebuilding biomass. However, in the absence of a large year class after 1999, the stock is projected to decline. With the publication of the 2004 harvest specifications for whiting (April 30, 2004; 69 FR 23667), NMFS announced that the whiting stock was estimated to above the target rebuilding biomass in 2003 and is no longer considered to be an overfished stock. Consequently, the adoption of a whiting rebuilding plan as an FMP amendment is no longer necessary.

During 2003, while whiting was under NMFS's overfished designation, the Court entered an order in the case of

Natural Resources Defense Council

v.

Evans

, 290 F. Supp. 2d 1051, 1057 (N.D. Calif. 2003), requiring NMFS to approve or adopt a rebuilding plan for whiting by November 30, 2004 pursuant to 16 U.S.C. 1854(c) of the Magnuson-Stevens Act. After concluding that whiting was rebuilt, NMFS asked the Court to amend its order. The Court granted the request by lifting the requirement that NMFS prepare a rebuilding plan for whiting on June 30, 2004.

In November 2003, the U.S. and Canada signed an agreement regarding the conservation, research, and catch sharing of whiting. The whiting catch sharing arrangement that was agreed upon provides 73.88 percent of the total catch OY to the U.S. fisheries and 26.12 percent to the Canadian fisheries. At this time, both countries are taking steps to bring this agreement into force. Until the agreement is ratified and implementing legislation effective, the negotiators recommended that each country informally implement the agreed upon provisions.

In anticipation of the ratification of the U.S.-Canada agreement and a new stock assessment, and given the small amount of whiting that is typically landed under trip limits prior to the April 1 start of the primary season, the Council is delaying adoption of a final ABC and OY until its March 2005 meeting. If the international agreement is ratified and implementing legislation is effective, ABC and OY values that are consistent with the agreement will be adopted. If the international agreement is not in force by March 2005, the Council will adopt final ABC and OY values for 2005 that are based on the new stock assessment and within the range that was considered in the EIS for the 2005 and 2006 management measures. The final ABC and OY values for 2005 and 2006 would be implemented through two final rules that are separate from the final rule for the rest of the groundfish specifications.

The range of ABCs and OYs considered by the Council and analyzed in the EIS for both 2005 and 2006 included: a low ABC/OY of 181,287 mt, which represents 50 percent of the medium ABC/OY; a medium ABC/OY of 362,573 mt, based on the results of the 2004 assessment with the OY being set equal to the ABC because the stock biomass is greater than 40 percent of the unfished biomass; and a high OY of 725,146 mt, which is twice the amount of the medium ABC/OY. The availability of overfished species as incidental catch, particularly Pacific ocean perch (POP), canary, darkblotched, and widow rockfish, will likely constrain the whiting OY during 2005 and 2006. In recent years, the most constraining overfished species for the whiting fishery have been canary and widow rockfish. Under this proposed rule, the amount of canary rockfish that would be available to the whiting fishery was estimated to be 7.3 mt and the amount of widow rockfish was estimated to be 231.8 mt in 2005 and 243.2 mt in 2006.

Canary Rockfish

A coastwide canary rockfish stock assessment and rebuilding analysis were prepared in 2002. The ABC of 270 mt for 2005 and 279 mt for 2006 were forecast from the 2002 assessment with the application a F

50%

harvest rate proxy.

On April 13, 2004, a canary rockfish rebuilding plan was adopted under Amendment 16-2 to the FMP (69 FR 19347). Regulations implementing this rebuilding plan established a target rebuilding year of 2074 with a harvest control rule of F=0.0220. There is a 60 percent probability that canary rockfish will rebuild to B

MSY

by T

MAX

. To allow the stock to rebuild, the OY must be set very low. Because canary rockfish are distributed coastwide and are incidentally caught with a wide variety of fishing gears, the low OYs will be constraining the groundfish fisheries for several years.

The Council considered alternative OYs based on different arrangements for dividing catch between the commercial and recreational fisheries. How the catch is divided between the commercial and recreational sectors results in different OYs. This difference is because the recreational fisheries take smaller-sized canary rockfish than the commercial fisheries, resulting in a greater per ton impact on the canary stock over the rebuilding period. The alternative OYs are based on the newly adopted canary rockfish rebuilding plan and have the same rebuilding impacts on canary rockfish as anticipated by the plan. The catch sharing arrangements initially considered by the Council for 2005 and 2006 included: a 50 percent recreational/50 percent commercial division that results in a 43 mt OY, and a 39 percent recreational/61 percent commercial division that results in a 48 mt OY. At its June 2004 meeting, the Council developed management measures that were expected to result in a 39 percent recreational/61 percent commercial division of the canary rockfish OY. The total catch of canary rockfish was then projected for the directed commercial and recreational groundfish fisheries under the new management measures. The amount estimated to be taken in non-groundfish and tribal fisheries, and the amount estimated to be taken during research activities that are scheduled to occur in 2005 and 2006 were also projected. When the total catch projections were summed for each year, they were less than the 48 mt OY. The OYs for 2005 and 2006 were calculated using the projected catch estimates under the proposed management measures, the

resulting OYs were 46.8 mt for 2005 and 47.1 mt for 2006.

A residual amount remained in each year and was divided, with 50 percent going to the recreational fisheries and 50 percent going to the commercial fisheries. The 2005 residual amount of 2.5 mt will be held in reserve, with 1.25 mt being available as needed for the recreational and 1.25 mt being available as needed for the commercial fisheries. Similarly, the 2006 residual amount of 1.8 mt will be held in reserve, with 0.9 mt being available as needed for the recreational and 0.9 mt being available as needed for the commercial fisheries.

For the recreational fishery, two regional harvest guidelines will be established for canary rockfish in both 2005 and 2006. These recreational harvest guidelines are needed to give the states more ability and direct responsibility for managing the recreational fisheries that occur off their coasts to prevent overfishing. For the area north of 42° N. lat., the recreational harvest guideline will be 8.5 mt and for the area south of 42° N. lat, the recreational harvest guideline will be 9.3 mt.

Pacific Cod, “other flatfish” and “other fish”

Of the 80 plus groundfish species managed under the groundfish FMP, ABC values have been established for only about 25 species. Many of the remaining species are managed within complexes and are not usually not listed by species on fish landing receipts. Information from fishery independent surveys is generally lacking for these stocks, because of their low abundance or because they are not vulnerable to survey sampling gear. Detailed biological information is generally lacking for these stocks (typically, the spawning biomass, level of recruitment, or the current fishing mortality rate are unknown and not routinely available), and ABC levels have typically been established on the basis of average historical landings.

The ABC levels for Pacific cod, “other flatfish” and “other fish” have been based on historical landings. When determining numerical OYs for individual species and species groups for which the ABC is based on non-quantitative assessment, the Council may apply precautionary adjustments. Since 2000, the Council has adjusted the OYs for several unassessed stocks to 50 percent of the historical average catch levels. Although the ABCs for Pacific cod, “other flatfish” and “other fish” have been based on historical landings, precautionary adjustments have not been used in the past to establish OYs.

For 2005 and 2006, the Council considered alternative OYs for Pacific cod, “other flatfish” and “other fish” that were based on a 50 percent precautionary adjustment. The range of OYs considered by the Council and analyzed in the EIS for Pacific cod in both 2005 and 2006 included: a low OY of 1,600 mt, which represents the ABC with a 50 percent precautionary adjustment and a high OY of 3,200 mt, in which the OY is set equal to the ABC. In most years since the mid-1990s, less than 500 mt of Pacific cod have been landed. Recent harvest levels for the Canadian fishery have been set as low as 240 mt to allow for the stock to rebuild and have been combined with closed areas during the spawning season. The Council considered recent harvest levels as well as harvest specifications established for what is believed to be the same Pacific cod stock in Canadian waters and recommended that an OY of 1,600 mt be adopted for Pacific cod. An OY of 1,600 mt would be adequate to accommodate recent landings, while not being so high as to encourage targeting.

The range of OYs considered by the Council and analyzed in the EIS for “other fish” in both 2005 and 2006 included: a low OY of 7,350 mt, which represents the ABC with a 50 percent precautionary adjustment and a high OY of 14,700 mt, in which the OY is set equal to the ABC. The Council considered the recent landings, which ranged between approximately 2,500 mt in 1999 and 1,300 mt in 2002, prior to recommending that an OY of 7,350 mt be adopted for “other fish”.

“Other flatfish” is an aggregate species group of unassessed flatfish species that includes pacific sanddab, rex sole, curlfin sole, starry flounder, butter sole, rock sole, sand sole and flathead sole. Since implementation of the FMP in 1982, an ABC of 7,700 mt has been used. This is a landed catch value based on historical landings that are believed to have occurred during the 1970s. Landings of “other flatfish” species have varied considerably since 1981, with declines observed for most species. The reasons for the reductions are unknown, but could reflect lower abundance, a shift in the availability of the “other flatfish” species, fishing fleet changes, reduced market demand or a combination of these factors.

For 2005 and 2006, the Council considered total catch ABCs that were also based on historical landings. The total catch ABC is based on historical landed catch values but also incorporates estimated discard mortality for species in the complex. The range of ABCs and OYs considered by the Council and analyzed in the EIS for “other flatfish” in both 2005 and 2006 are: a low ABC/OY of 4,400 mt/2,200 mt, in which the OY has a 50 percent precautionary adjustment; a mid-range ABC of 6,781, based on the highest 1981-2003 landings of sanddabs and rex sole and on the 1994-1998 average landings for the remaining species in the group with an OY of 4,909 mt, which has a 25 percent precautionary adjustment for 0sanddabs and rex sole and a 50 percent precautionary adjustment to the remaining species; and a high ABC/OY of 12,000 mt in which the OY is set equal to the ABC.

The Council recommended adopting the mid-range ABC of 6,781 mt with the OY value of 4,909 mt. Landings of “other flatfish” between 1981 and 2003 have ranged between 3,917 in 1982 to 1,600 in 2000 and 2003. Therefore the proposed OY is not expected to have a substantial impact on the fishery participants. With reduced opportunities in other fisheries, this more conservative OY is less likely to encourage new interest in targeting these species.

Black Rockfish

In 2005 and 2006 state harvest guidelines will be specified for black rockfish. Because black rockfish is primarily taken in state waters, state specific harvest guidelines are expected to allow the states to better manage their respective recreational and commercial fisheries. For the area north of 46°16′ N. lat. (Washington/Oregon boarder), the OY is 540 mt. For the area south of 46°16′ N. lat (waters off Oregon and California) the OY is 753 mt. The black rockfish OY for the waters off Oregon and California is being subdivided with 437 mt (58 percent) being applied to the waters off Oregon (between 46°16′ N. lat and 42° N. lat). and 316 mt (42 percent) being applied to the waters off California (south of 42° N. lat.)

For the waters off Oregon, 332 mt is estimated to be taken in the recreational fishery in 2005 and 290-360 mt in 2006, resulting in a commercial harvest guideline of 105 mt in 2005 and a range of 67-137 mt for 2006. The 2006 Oregon values are being presented as a range because the Oregon State rulemaking process did not coincide with the Council's 2004 management measures development process. The Oregon Fish and Wildlife Commission will make recommendations on in-state allocation issues in December 2004. Therefore, the division of Oregon black rockfish harvest guideline between commercial and recreational fisheries is presented as a range at this time and the proposed rule comment period for this issue only

will be held until December 30, 2004. The Oregon Fish and Wildlife Commission will meet on December 10 at the Oregon Department of Fish and Wildlife (ODFW) office in Salem. The schedule of meetings, the process for providing written or oral testimony, as well as the agenda and meeting materials for the upcoming meeting, are available online at the following ODFW website address: Information on the Oregon recommendation can be obtained from the following web site in early December:

www.dfw.state.or.us/Comm.schedule.htm

.

For the waters off California, the 316 mt harvest guideline of black rockfish will be divided with 190 mt (60 percent) being applied to the area north of 40°10 min N. lat. and 126 mt (40 percent) being applied to the area south of 40°10 min N. lat. For the area between 42° N. lat. and 40°10′ N. lat., 74 mt is estimated to be taken in the recreational fishery, resulting in a commercial harvest guideline 116 mt. For the area south of 40°10 min N. lat., 101 mt is estimated to be taken in the recreational fishery, resulting in a commercial harvest guideline of 25 mt. For the waters off Washington, 30,000 lb (13.6 mt) is being set as a harvest guideline for the tribal fisheries.

Landed Catch OYs

Landed catch values are not presented in this document. In the revised 2004 bycatch accounting model, target and overfished species estimates are based on landed catch amounts. Bycatch rates are no longer applied to the total catch OY to obtain the landed catch values. [Note: Discussion of the revised model can be found later in this document, the bycatch and discard accounting section.]

Overfished Species

The status of the groundfish stocks are evaluated against the requirements of the Magnuson-Stevens Act, NMFS's national standard guidelines, and the FMP. A species or stock is considered to be overfished if its current biomass is less than 25 percent of the unfished biomass. The Magnuson-Stevens Act requires that a rebuilding plan be prepared within one year after the Council is notified by NMFS that a particular species is overfished.

Eight Pacific coast groundfish stocks continue to be designated as “overfished”: POP, bocaccio, lingcod, canary rockfish, cowcod, darkblotched rockfish, widow rockfish, and yelloweye rockfish. Pacific whiting is no longer designated as overfished.

Amendment 16-1 to the FMP was prepared in part to respond to a Court order in

Natural Resources Defense Council, Inc

. v.

Evans

(N.D. Cal. 2001). Amendment 16 1 established a process for and standards by which the Council will specify rebuilding plans for groundfish stocks that are declared overfished. Amendment 16-1 also amended the FMP to require that Pacific Coast groundfish overfished species rebuilding plans be added into the FMP via FMP amendment, and implemented through Federal regulations. Amendment 16 1 was intended to ensure that overfished species rebuilding plans meet the requirements of the Magnuson-Stevens Act, in particular national standard 1 on overfishing and section 304(e), which addresses rebuilding of overfished fisheries. NMFS approved Amendment 16-1 on November 17, 2003.

For each approved overfished species rebuilding plan, the following parameters will be specified in the FMP: estimates of unfished biomass (B

0

) and target biomass (B

MSY

), the year the stock would be rebuilt in the absence of fishing (T

MIN

), the year the stock would be rebuilt if the maximum time period permissible under the national standard guidelines were applied (T

MAX

) and the year in which the stock would be rebuilt under the adopted rebuilding plan (T

Target

). These estimated rebuilding parameters serve as management benchmarks in the FMP and the FMP will not be amended if the values for these parameters change after new stock assessments are completed, as is likely to happen.

NMFS approved Amendment 16-2 on January 30, 2004, and published a final rule for Amendment 16-2 on April 13, 2004 (69 FR 19347). Amendment 16-2 added the rebuilding parameters for lingcod, canary rockfish, darkblotched rockfish, and POP to section 4.5.4. of the FMP, along with other relevant information on each of these overfished stocks, such as stock distribution, fishery interaction, and rebuilding strategy.

Amendment 16-1 specified two rebuilding parameters (of those that are listed above in the FMP) that are to be codified in Federal regulations for individual species rebuilding plans, the target year for rebuilding and the harvest control rule that is to be used during the rebuilding period. Amendment 16-2 added these rebuilding parameters to the Code of Federal Regulations (CFR) at 50 CFR 660.370. The target rebuilding year is the year in which there is a 50 percent likelihood that the stock will have been rebuilt with a given mortality rate. The harvest control rule expresses a given fishing mortality rate that is to be used over the course of rebuilding. These parameters are to be used to establish the annual OYs. Conservation and management goals defined in the FMP require the Council and NMFS to manage to the appropriate harvest levels for a species or species groups, including those harvest levels established for rebuilding overfished species.

The FMP provides that after a new stock assessment, the Council and NMFS may conclude that either or both of the parameters defined in regulation should be revised. Revisions will be implemented through the Federal rulemaking process, and the updated values codified in the Federal regulation. Generally, the target year should only be changed in unusual circumstances. Two such unusual circumstances include (1) if, it is determined, based on new information, that the existing target year is later that the maximum rebuilding time (TMAX), (2) or if the harvest control rule calculated from the new information is estimated to result in such a low OY as to cause substantial socio-economic impacts. Any change to a harvest control rule must be fully supported by a corresponding analysis and updated through the Federal rulemaking process which would include opportunity for public notice and comment.

An approved rebuilding plan will be implemented through setting OYs and establishing management measures necessary to maintain the fishing mortality within the OYs to achieve objectives related to rebuilding requirements.

Amendment 16-2 has been followed by Amendment 16-3. At the Council's April 2004 meeting, rebuilding plans under Amendment 16-3 for bocaccio, cowcod, widow rockfish and yelloweye rockfish were adopted and include the parameters listed below.

A notice of availability for the EIS for Amendment 16-3 was published on June 18, 2004 (69 FR 34116). A proposed rule to codify provisions of Amendment 16-3 was published in the

Federal Register

on July 7, 2004 (69 FR 40851), and will be followed by a final rule in autumn 2004.

2005-2006 Management of Overfished Species

Rebuilding plans adopted under Amendments 16 2 and 16-3 are implemented through Federal regulations. The new stock assessments for lingcod (discussed above in the “2005 and 2006 ABCs and OYs” section) have resulted in revisions to some of the rebuilding parameters specified by Amendment 16 2.

Preliminary rebuilding measures for the overfished species are summarized below. Management measures designed to rebuild overfished species, or to prevent species from becoming overfished, may restrict the harvest of relatively healthy stocks that are harvested with overfished species. As a result of the constraining management measures imposed to protect and rebuild overfished species, a number of the OYs may not be achieved in 2005 or 2006.

OY Management for Overfished Species

Management measures adopted for 2005 and 2006 are expected to keep the incidental catch of overfished species within the adopted OYs. Managing a fishery inseason is dependent on the availability and accuracy of catch data. As new data become available and are used to track catch levels throughout the year, management strategies may need to be adjusted to keep the harvest of healthy stocks and the incidental catch of overfished species at or below their specified OYs.

Managing the fishery to stay within the OYs of overfished species is difficult because the OYs of many overfished species are low. After reviewing the estimated mortality from all directed and incidental groundfish fisheries and research activities, the Council recommended adopting management measures that are predicted to result in total fishing mortality levels that are lower than the annual OYs for some overfished species. Designing management measures for certain overfished species that result in total mortality levels that are lower than that species' OY leaves a residual amount of fish from the OY. Leaving this residual amount at the beginning of the fishing year can reduce the risk that the fisheries will exceed the OY, particularly when there are difficulties in catch accounting or when new information becomes available that changes NMFS' understanding of total catch. The residual amounts below OYs for each overfished species are provided in the footnotes to Tables 1a and 2a.

POP

Date declared overfished: March 3, 1999

Areas affected: Vancouver and Columbia

Status of stock: Following the 2003 assessment, the stock was believed to be at 25 percent of unfished biomass level.

B

0

: 37,230 units of spawning output

B

MSY

: 14,892 units of spawning output

T

MIN

: 2011

T

MAX

: 2042

P

MAX

: >70 percent

T

TARGET

: 2027

Harvest control rule: F=0.0257

ABC: 966 mt in 2005, 934 mt in 2006

OY: 447 mt in 2005, 447 mt in 2006

Management measures for 2005 and 2006: POP is a slope species that occurs in similar depths as darkblotched rockfish, although POP has a more northern geographic distribution than darkblotched rockfish. The 2005 and 2006 management measures that are intended to limit the bycatch of POP include the continued use of RCAs, cumulative trip limits, and routine management authority to close the primary whiting fisheries if there are overfished species bycatch concerns.

POP are primarily taken with trawl gear north of 40°10′ N. lat. The seaward boundary of the trawl RCA was set at a depth that was likely to keep fishing effort in deeper waters and away from areas where the bycatch of POP was historically highest. However, the boundaries of the RCAs vary by season and fishing sector and may be modified in response to new information about geographical and seasonal distribution of bycatch.

Minor slope rockfish and POP limits are set at levels that are expected to allow vessels targeting DTS species (Dover sole, thornyheads, sablefish) to retain their incidentally caught slope rockfish while being low enough to discourage targeting. Measures that constrain the DTS trawl fishery to stay within the shortspine thornyhead OY are also expected to keep the catch of POP in both 2005 and 2006 well below its OYs. As needed, trip limits for co-occurring species may be adjusted to reduce POP rockfish bycatch.

With this action, NMFS is establishing routine management measure authority to close a whiting primary season fishery, before the sector's whiting allocation is reached, to address concerns about the impacts on overfished species, including POP.

POP are not an important component of the tribal or recreational fisheries.

Darkblotched Rockfish

Date declared overfished: January 11, 2001 (66 FR 2338)

Areas affected: Coastwide

Status of the stock: Following a 2003 stock assessment, the coastwide stock was believed to be at 11 percent of its unfished biomass level.

B

0

: 30,775 mt

B

MSY

: 12,310 mt

T

MIN

: 2011

T

MAX

: 2047

P

MAX

: >80 percent

T

TARGET

: 2030

Harvest control rule: F=0.032

ABC: 269 mt in 2005, 294 mt in 2006

OY: 269 mt in 2005, 294 mt in 2006

Management measures in 2005 and 2006: Darkblotched rockfish occur on the outer continental shelf (shelf) and continental slope (slope), mainly north of Point Reyes, CA (38° N. lat). Because of their deeper distribution, they are caught exclusively by commercial vessels. Most landings have been made by bottom trawl vessels targeting flatfish on the shelf and minor rockfish and DTS species on the continental slope. Management measures intended to limit bycatch of darkblotched rockfish and keep fishing mortality within the OYs specified for 2005 and 2006 include the continued use of RCAs, cumulative trip limits, and routine management authority to close the primary whiting fisheries when there are overfished species bycatch concerns.

The seaward boundary of the trawl RCA was set at a depth that was likely to keep fishing effort in deeper waters and away from areas where the bycatch of darkblotched rockfish was highest. The boundaries of the RCAs vary by season and fishing sector and may be modified in response to new information about geographical and seasonal distribution of bycatch.

Minor slope rockfish cumulative trip limits are set at levels that are expected to allow vessels targeting DTS species to retain their incidentally caught slope rockfish while being low enough to discourage targeting. Measures that constrain the DTS trawl fishery to stay within the shortspine thornyhead OY are also expected to keep the catch of darkblotched rockfish in both 2005 and 2006 well below its OYs. As needed, trip limits for co-occurring species may be adjusted to reduce the catch of darkblotched rockfish.

With this action, NMFS is establishing routine management measure authority to close a whiting primary season fishery, before the sector's whiting allocation is reached, to address concerns about the impacts on overfished species, including darkblotched rockfish.

Canary Rockfish

Date declared overfished: January 4, 2000 (65 FR 221)

Affected area: Coastwide

Status of the stock: 8 percent of its unfished biomass level in 2002.

B

0

: 31,550 mt

B

MSY

: 12,620 mt

T

MIN

: 2057

T

MAX

: 2076

P

MAX

: 60 percent

T

TARGET

: 2074

Harvest control rule: F=0.0220

ABC: 270 mt in 2005, 279 mt in 2006

OY: 46.8 mt in 2005, 47.1 mt in 2006

Management measures in 2005 and 2006: Canary rockfish prefer rocky areas on the shelf and are encountered in a wide variety of commercial and recreational fisheries. Management measures intended to limit bycatch of canary rockfish include the use of RCAs, cumulative trip limits, gear restrictions, reduced seasons, and routine management authority to close the primary whiting fisheries when there are overfished species bycatch concerns.

Bottom trawling is prohibited in the trawl RCA, which covers much of the shelf and depths where canary rockfish have been most frequently caught. The nontrawl RCA boundaries are intended to move the nontrawl fleets off of the continental shelf, where overfished species susceptible to nontrawl gear are found.

Cumulative limits are structured to discourage targeting while allowing very low levels of incidental take to be landed. For the area south of 40°10′ N. lat., limited entry fixed gear trip limits are set so that they draw vessels away from continental shelf species, placing emphasis on available slope species. The limited entry fixed gear fleet north of 40°10′ N. lat. will be prohibited from retaining canary rockfish. Differential trip limits have been used for large and small footrope trawl gear throughout the year. Trawl flatfish trip limits are lower inshore of the trawl RCA, where canary rockfish are most commonly distributed, than offshore of the RCA. By allowing greater limits for large footrope gear and prohibiting its use in nearshore areas, there is an incentive for vessels to fish in deeper waters, beyond the range of canary rockfish. To reduce incidental take of canary rockfish inshore of the RCA, flatfish vessels operating in that area are required to use selective flatfish trawl gear and are allowed to access lower trip limits than those fishing offshore of the RCA. Because NMFS is proposing to require trawlers to use selective flatfish trawl gear in the nearshore areas, flatfish trawl trip limits for vessels using small footrope trawl gear north of 40°10′ N. lat are higher than in recent years. This new trawl net design, which was tested in 2003 through an exempted fishing permit, features a headrope set back from a flattened net body to capture low-swimming flatfish while allowing rockfish, including canary rockfish, to escape over the upper edge of the trawl net.

Trawling with open access non-groundfish gear for pink shrimp will be allowed within the RCA because they use state required finfish excluder devices to reduce their groundfish bycatch, particularly bycatch of canary and other rockfishes. Off California, trawling for California halibut, and sea cucumber will be prohibited within the trawl RCA. Ridgeback prawn trawling will south of 34°27′ N. lat. will be constrained by an RCA between boundary lines approximating the 100 fm (183 m) and 150 fm (274 m) depth contours throughout the year.

Recreational fisheries are managed through bag limits, size limits and seasons. As necessary, seasons can be shortened and bag limits reduced to stay within the OYs. The retention of canary rockfish, in Washington waters, will be prohibited. Off Oregon, recreational fishing for groundfish will be depth-restricted June through September, when the fishery will be closed offshore of a boundary line approximating the 40 fm (73 m) depth contour. Recreational fisheries participation is heaviest during these months and this closure is intended to move the groundfish fisheries inshore to protect canary rockfish. The California Department of Fish and Game (CDFG) proposed for 2005 and 2006 a package of management measures to strongly constrain their recreational fisheries (see recreational section below). Season and area closures differ between California regions to better protect overfished species according to where those species occur and where fishing effort is strongest. Retention of canary rockfish in the California and Oregon recreational fisheries will not be permitted.

With this action, NMFS is establishing routine management measure authority to close a whiting primary season fishery, before the sector's whiting allocation is reached, to address concerns about the impacts on overfished species.

Lingcod

Date declared overfished: March 3, 1999.

Areas affected: Coastwide

Status of the stock: A coastwide assessment was conducted in 2003 and estimated that the stock was at 25 percent of its unfished biomass coastwide in 2002, 31 percent in the north and 19 percent in the south.

B

0

: 41,071 mt coastwide, 20,801 mt north and 20,270 mt south

B

MSY

: 16,428 mt coastwide, 8,321 mt north and 8,108 mt south

T

MIN

: 2004 north and 2006 south

T

MAX

: 2009

P

MAX

: 70 percent

T

TARGET

: 2009

Harvest control rule: F=0.17 north and F=0.15 south

ABC: 2,922 mt in 2005, 2,716 mt in 2006

OY: 2,414 mt in 2005 and in 2006

Management measures in 2005 and 2006: Lingcod are irregularly distributed coastwide in hard bottom areas and around rocky reefs and are encountered in a variety of commercial and recreational fisheries. While lingcod is not yet rebuilt, it is abundant enough that it does not seriously constrains fisheries for co-occurring species.

Management measures intended to limit bycatch of lingcod for 2005 and 2006 include the continued use of RCAs, cumulative trip limits, reduced seasons, and gear restrictions. Measures to reduce the catch of canary rockfish are also expected to provide protection to co-occurring overfished species such as lingcod. Similarly, the trip limit structures intended to constrain the incidental catch of canary rockfish is expected to benefit lingcod.

Trawl limits for lingcod are still at incidental take levels to discourage vessels from targeting lingcod while accommodating true incidental catch. As in past years, in the northern area limited entry fixed gear and open access fisheries will be prohibited from landing lingcod in January-April and in November-December to protect lingcod during their spawning and nest-guarding season. Similar to the northern area, lingcod retention is only permitted during May-October in the south. Lingcod are vulnerable to these gears during the winter nesting period, but have a high rate of survival when released alive. RCA restrictions described above for canary rockfish also protect lingcod.

Lingcod is also an important recreational species coastwide. Recreational bag limits, size limits and season restrictions will continue to be used. Regional management of the California recreational fisheries is expected to better protect overfished species by allowing the most restrictive management actions to be taken in the areas where typical fishing effort and overfished species impacts are strongest. Recreational fishing for lingcod will be closed in the winter months throughout to protect lingcod during its spawning and nesting season.

Bocaccio

Date declared overfished: March 3, 1999

Areas affected: Monterey and Conception

Status of stock: 7.4 percent of its unfished biomass in 2003

B

MY

: 13,387 Billion eggs in 2003

B

MSY

: 5,355 Billion eggs in 2003

T

MIN

: 2018

T

MAX

: 2032

P

MAX

: 70 percent

T

TARGET

: 2023

Harvest control rule: 0.0498

ABC: 566 mt in 2005, 549 mt in 2006

OY: 307 mt in 2005, 309 mt in 2005

Management measures for 2005 and 2006: Bocaccio is a shelf species that is most commonly found from 54 fm (99 m) to 82 fm (150 m) of water over the shelf. Bocaccio have historically been taken in the commercial trawl and fixed gear and recreational fisheries. To reduce bocaccio bycatch, fishing opportunities in the depths where bocaccio are most commonly encountered have been reduced though the use of RCAs, cumulative trip limits, and gear restrictions.

RCAs will continue to be used in 2005 and 2006 to restrict fishing on the shelf. Because bocaccio are more frequently caught by fixed gears in waters off the central California coast, proposed closures for the non-trawl fleet are more broad in this area. Off California, trawling for California halibut, and sea cucumber is prohibited within the trawl RCA. Pink shrimp trawling will be allowed within the RCA providing the vessels use state required finfish excluder devices. Ridgeback prawn trawling will south of 34° 27′ N. lat. will be constrained by an RCA between boundary lines approximating the 100 fm (183 m) and 150 fm (274 m) depth contours throughout the year.

NMFS expects that management measures to protect canary rockfish will restrict the incidental catch of bocaccio and keep it well below the OY. Because of this, the Council is allowing some targeting of the co-occurring chilipepper rockfish stock. Vessels that target chilipepper with large footrope gear offshore of the RCA or with midwater trawl gear will be allowed higher chilipepper landings limits in May-August. Only minimal levels of bocaccio retention, to accommodate incidental catch, will be permitted.

For the recreational fisheries, CDFG proposes to strongly constrain their recreational fisheries through the use of season and area closures that differ between California regions. Regional management of the California recreational fisheries is expected to better protect overfished species by allowing restrictive management actions to be taken in the areas where fishing effort and overfished species impacts are greatest.

Cowcod

Date declared overfished: January 4, 2000

Areas affected: Point Conception to the U.S.-Mexico boundary.

Status of stock: 4-11 percent of unfished biomass in 1999

B

0

: 3.367 mt

B

MSY

: 1,350 mt

T

MIN

: 2062

T

MAX

: 2099

P

MAX

: 60 percent

T

TARGET

: 2090

Harvest control rule: F=0.009

ABC: 24 mt in 2005 and 2006

OY: 4.2 mt in 2005 and 2006

Management measures in 2005 and 2006: All directed cowcod fishing opportunities have been eliminated since 2001. Retention of cowcod is prohibited for all commercial and recreational fisheries. In addition, management measures to reduce canary and bocaccio rockfish catch are also expected to benefit cowcod.

To protect cowcod from incidental harvest, two Cowcod Conservation Areas (CCAs) (the Eastern CCA and the Western CCA) in the Southern California Bight have been delineated to encompass key cowcod habitat areas and known areas of high catches. Fishing for groundfish is prohibited within the CCAs, except that minor nearshore rockfish, cabezon, and greenling may be taken from waters where the bottom depth is less than 20 fathoms (36.9 m).

In 2003, a rebuilding review was conducted for cowcod. This was a thorough examination of the recreational and commercial fishery related removals in relation to the ABC and OY levels that were established for rebuilding. The review concluded that the total removals of cowcod have declined in accordance with the rebuilding based harvest specifications.

Widow Rockfish

Date declared overfished: January 11, 2001

Areas affected: Coastwide

Status of stock: 22.4 percent of the unfished biomass in 2002

B

0

: 43,530 million eggs

B

MSY

: 17,432 million eggs

T

MIN

: 2026

T

MAX

: 2042

P

MAX

: 60 percent

T

TARGET

: 2038

Harvest control rule: F=0.0093

ABC: 3,218 mt in 2005, 3,059 mt in 2006

OY: 285 mt in 2005, 289 mt in 2006

Management measures in 2005 and 2006: Management measures intended to limit bycatch of widow rockfish and keep fishing mortality within the OYs specified for 2005 and 2006 included the continued use of RCAs, cumulative trip limits, and routine management authority to close the primary whiting fisheries when there are bycatch concerns.

Because bottom trawl opportunities for shelf rockfish continue to be extremely limited outside the RCAs, the use of RCAs are expected to be beneficial to the recovery of widow rockfish. Cumulative trip limits for commercial limits for widow rockfish are intended to accommodate incidental catch and do not provide an incentive for directed fishing. Similarly, cumulative limits for yellowtail rockfish, a species that co-occurs with widow rockfish, have been severely constrained.

An incidental catch allowance of widow rockfish will continue to be provided for the primary whiting season. Final whiting ABCs and OYs are expected to be adopted at the Council's March 2005 and 2006 meetings. NMFS anticipates setting the 2005 and 2006 Pacific whiting OYs so that they are constrained by the amount of widow rockfish available for incidental retention, as the agency did in 2004 (April 30, 2004, 69 FR 23667).

With this action, NMFS is establishing routine management measure authority to close a whiting primary season fishery, before the sector's whiting allocation is reached, to address concerns about the impacts on overfished species.

Yelloweye Rockfish

Date declared overfished: January 11, 2002

Areas affected: Coastwide

Status of stock: 24.1 percent of its unfished biomass in 2002

B

0

: 3,875 mt

B

MSY

: 1,550 mt

T

MIN

: 2027

T

MAX

: 2071

P

MAX

: 80 percent

T

TARGET

: 2058

Harvest control rule: F=0.0153

ABC: 54 mt in 2005, 55 mt in 2006

OY: 26 mt in 2005, 27 mt in 2006

Management measures in 2005 and 2006: Yelloweye rockfish are more available to the fixed gears and recreational fisheries than to the trawl fishery. Management measures intended to limit bycatch of yelloweye rockfish and to keep fishing mortality within the OY specified for 2005 and 2006 include the continued use of RCAs and cumulative trip limits in the commercial fisheries and bag limits in the recreational fisheries.

The retention of yelloweye rockfish in the commercial nontrawl fisheries will continue to be prohibited throughout the year. In addition, sublimits for yelloweye rockfish will be applied to the minor nearshore shelf rockfish trip limit for the limited entry trawl fisheries to discourage any interest in targeting yelloweye rockfish.

The yelloweye rockfish conservation area (YRCA) will continue to be used for

2004 in waters off the coast of Washington. Off Washington, recreational fishing for groundfish and halibut will continue to be prohibited inside the YRCA, a C-shaped closed area off the northern Washington coast. Off Oregon, recreational fishing for groundfish will be depth-restricted June through September, when the fishery will be closed offshore of a boundary line approximating the 40 fm (73 m) depth contour. Recreational fisheries participation is heaviest during these months and this closure is intended to move the groundfish fisheries inshore to protect canary and yelloweye rockfish. Regional management of the California recreational fisheries is expected to better protect overfished species by allowing the restrictive management actions to be taken in the areas where fishing effort and overfished species impacts are greatest. Retention of yelloweye rockfish in the California and Oregon recreational fisheries will not be permitted.

Overfishing

None of the 2005-2006 ABCs are set higher than FMSY or its proxy, none of the OYs are set higher than the corresponding ABCs, and the management measures in this proposed rule are designed to keep harvest levels within specified OYs. Overfishing is difficult to detect inseason for many groundfish, particularly for minor rockfish species, because most species are not individually identified on landing. Species compositions, based on proportions encountered in samples of landings and extrapolated observer data, are applied during the year. However, final results are not available until after the end of the year. Thus, this proposed rule discusses overfishing that occurred in 2003, not 2004. If overfishing occurred on any groundfish species in 2004, it will be listed in NMFS's annual report to Congress on the status of U.S. Fisheries.

During the 2003 fishing season, overfishing occurred on lingcod and black rockfish. There are no formal allocations for lingcod between the commercial and recreational fisheries; however the 2003 total catch OY of 651 mt for lingcod was separated into: 355 mt expected catch for the recreational fisheries, 3 mt for the amount estimated to be taken in research, 4.3 mt for the amount estimated to be taken in commercial non-groundfish fisheries, 5.2 mt expected catch in the tribal fisheries, resulting in a 284 mt non-tribal commercial OY. Catch of lingcod in 2003 research fisheries is estimated to have been 4.5 mt. Non-tribal and tribal commercial catch for 2003 is estimated to have been 165.7 mt, which is well beneath the combined 289.2 mt expected for those fisheries. Recreational lingcod landings for 2003 are estimated to have been 1,012 mt, exceeding the expected recreational fisheries take by 657 mt. With this large overharvest in the recreational fisheries, total lingcod landings are estimated to have been 1,182.2 mt, exceeding the 841 mt coastwide lingcod ABC by 341.2 mt. Under the FMP, ABCs are set at FMSY and the lingcod ABC is set with an FMSY proxy of F45%. Fishing at a level that exceeds the MSY harvest rate is considered overfishing under the Magnuson-Stevens Act.

Because the black rockfish stock is above the FMP's precautionary level indicator of B

40

%%

, the black rockfish OY is set equal to its ABC. In 2003, the black rockfish coastwide ABC/OY was 1,115 mt. The available 2003 black rockfish harvest was not as tightly delineated as the 2003 lingcod harvest. Of the 1,115 mt available coastwide, 615 mt was estimated to be available from the Vancouver and Columbia management areas (north of 43° N. lat.) and 500 mt from the Eureka area (40° 10′—43° N. lat.) Black rockfish is a northern stock occurring primarily north of 40° 10′ N. lat. The 2003 non-tribal and tribal commercial fisheries took 174.4 mt of black rockfish, 128.9 mt of which was landed in the Eureka area. Data for the recreational fisheries are separated by state, rather than by fishery management area. The 2003 recreational fisheries took 516 mt off Oregon and Washington (waters north of 42° N. lat.) and 497 mt off California. Cumulatively, the fisheries landed 1,187.4 mt of black rockfish in 2003, exceeding that species' ABC by 72.4 mt.

For both the lingcod and black rockfish ABCs, the California recreational fisheries had the greatest effect in exceeding those ABCs. The 2003 California recreational fisheries landed 840 mt of the 1,012 mt of coastwide lingcod landings. Of the 1,016 mt of black rockfish available to the recreational fisheries coastwide, the California recreational fisheries took 497 mt.

Before finalizing the 2004 fishery specifications and management measures, NMFS reviewed preliminary data on the 2003 fisheries. The 2003 landings data available at that time, February 2004, were not considered complete for either the recreational or commercial fisheries. There was enough information on the California recreational fisheries, however, to give NMFS concern that those fisheries could again overharvest lingcod, black rockfish, and perhaps other species in 2004. NMFS discussed the California recreational fisheries data with CDFG in February 2004, and implemented restrictive lingcod management measures for those fisheries with its 2004 specifications and management measures final rule (69 FR 11064, March 9, 2004.) Effective April 1, 2004, NMFS and California reduced the lingcod bag limit off California from two fish to one fish and increased the size limit from 24 inches (61.4 cm) to 30 inches (76.8 cm).

Both the Council and the California Fish and Game Commission (Commission) discussed the need to further restrict California's recreational fisheries to protect lingcod, black rockfish, and other nearshore rockfish species at their meetings in March and April 2004. CDFG conveyed the Commission's recommendations to the Council at the Council's April meeting. The Council concurred with the Commission that both state and Federal regulations for California's recreational fishery needed to be more constraining to prevent overharvest of these species and other overfished stocks. Based on the Council's recommendations, NMFS made a series of bag limit reductions, area closures and season closures that were effective May 1, 2004, and which are detailed in two NMFS inseason action documents that were published on April 29, 2004 (69 FR 23440) and May 5, 2004 (69 FR 25013). The revised 2004 California recreational fisheries management measures provided the basis for the more restrictive and area-specific management measures proposed for 2005-2006 California fisheries. NMFS, the Council, and CDFG will monitor 2004 recreational fisheries data as they become available to assess whether 2005-2006 recreational fisheries management measures are sufficiently constraining to prevent the California fishery from excessive harvests in those years. In both 2005 and 2006, the commercial and recreational fisheries have been constrained to protect canary rockfish. NMFS and the Council expect that canary rockfish protections will constrain lingcod harvest. In both 2005 and 2006, a residual amount of lingcod remains in the lingcod OY beyond those amounts expected to be taken in commercial, recreational, tribal and scientific fishing. In 2005, that residual amount is 1,504.5 mt and in 2006, it is 1,528.3 mt. These residual amounts of available lingcod harvest may provide a buffer against overharvest in the California recreational fisheries.

Bycatch and Discard Management

The Magnuson-Stevens Act defines bycatch as “fish which are harvested in

a fishery, which are not sold or kept for personal use, and include economic discards and regulatory discards.” By contrast, Pacific Coast groundfish fishery management and many other fishery management regimes commonly use the term bycatch to describe non-targeted species that are caught in common with (co-occur with) target species, some of which are landed and sold or otherwise used and some of which are discarded. The term “discard” is used to describe those fish harvested that are neither landed nor used.

NMFS's bycatch reduction program for West Coast groundfish is primarily intended to address the two major Magnuson-Stevens Act goals on bycatch:

(1) “Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch” (§ 301(a)(9)).

(2) [FMP's shall] “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” (§ 303(a)(11)).

NMFS uses a three-part strategy to meet these Magnuson-Stevens Act mandates: (1) gather data through a standardized reporting methodology on the amount and type of bycatch occurring in the fishery; (2) assess this data through bycatch models to estimate when, where, and with which gear types bycatch of varying species occurs; and (3) implement management measures through Federal fisheries regulations that minimize bycatch and bycatch mortality to the extent practicable, and that keep the total mortality of groundfish within the OYs of the various groundfish species and species groups. This section of the preamble to this proposed rule describes recent NMFS activities in each of the three parts of this strategy.

Gathering Bycatch and Discard Data

NMFS uses the West Coast groundfish observer program (WCGOP,) established in August 2001 and required in the FMP in Section 6.5.1.2, as its primary standardized reporting methodology for bycatch in the groundfish fisheries. The WCGOP focuses on vessels participating in the shore-delivery cumulative limit fisheries for non-whiting groundfish. Although WCGOP deploys observers on vessels of all major gear types, the program initially focused on observing trawl vessel fishing activity. Over 90 percent of commercial West Coast groundfish landings, by weight, are taken by the limited entry trawl fleet. As WCGOP has developed, it has expanded into more observations in the limited entry nontrawl fleet. About 75 percent of WCGOP's observer hours tend to be spent on trawl vessels, with the remaining 25 percent primarily focused on limited entry longline and pot vessels. Through 2003, NMFS's observer coverage of the limited entry fixed gear fleet focused on vessels participating in the primary sablefish fishery. Participants in this fishery landed approximately 44 percent of the commercial groundfish taken by vessels other than groundfish trawlers in 2003. In 2004 and beyond, the agency will be adding observer coverage to the remainder of limited entry fixed gear fishing strategies and to the open access directed groundfish fisheries. These two sectors, the open access directed fishery and the limited entry fishery outside of the primary sablefish season, have similar fishing strategies. WCGOP is experimenting with ways to deploy observers on the small (<18 ft length overall) boats of the open access groundfish fisheries. More information on WCGOP is available online at:

www.nwfsc.noaa.gov/research/divisions/fram/Observer/

.

Vessels participating in the at-sea whiting fisheries (catcher-processors and motherships) have been voluntarily carrying observers since 1991. NMFS made observer coverage mandatory for at-sea processors on July 7, 2004 (69 FR 31751, June 27, 2004). For the shore-based whiting fisheries, NMFS experimented in 2004 with electronic monitoring in combination with dockside monitors. The Council will make its final recommendation on a full retention and monitoring program for the shore-based whiting fisheries at its October 31-November 5, 2004, meeting in Portland, OR. (A draft Environmental Assessment for this program is available online at:

ww.nwr.noaa.gov/1sustfsh/groundfish/gfNEPA.htm

). NMFS expects to implement regulations for this program in time for the 2005 whiting season. The WCGOP and the whiting observer programs, in combination with state fish ticket and logbook programs and fisheries-independent data, are used to support groundfish bycatch assessment models. Together, these programs comprise the first part of NMFS' bycatch management strategy, gathering scientific data on bycatch in the groundfish fisheries. In addition to these Federal programs, the Council relies on state recreational fisheries sampling programs, which use a combination of at-sea and at-dock samplers to gather catch and discard data on the recreational fisheries. These state-run programs are described in the DEIS for this action.

Modeling Bycatch and Discard Data

The second part of NMFS's bycatch management strategy is to use data on bycatch and discard in models intended to estimate the amount and type of bycatch occurring in the groundfish fisheries. NMFS first introduced a groundfish fisheries total catch assessment model (known as “the bycatch model”) in late 2001 for the 2002 fishing season. NMFS has annually described the development and evolution of this model in its proposed rules to implement fishery specifications and management measures. [See 67 FR 1555, January 11, 2002, 68 FR 936, January 7, 2003, and 69 FR 1380, January 8, 2004 for historical information on the bycatch model.] As the WCGOP has evolved, so has the bycatch model. During its first year, the bycatch model focused on overfished species taken incidentally in the trawl fisheries, and was populated with data from observation experiments from the mid-1990s and prior years. By January 2003, NMFS had analyzed data from the first year of the WCGOP and the bycatch models for fishing years 2003 and 2004 were updated with WCGOP-generated data. Prior to 2004, the bycatch model had focused on co-occurrence ratios for overfished species taken in target species fisheries without also looking at potential discard of target species. For the 2004 fishing year, NMFS expanded the bycatch model to set discard rates for target species by depth. Like initial WCGOP efforts, the models for the 2002-2003 fishing years also focused on the trawl fisheries. For 2005-2006, NMFS has again updated the trawl bycatch model with trawl fisheries data from WCGOP. NMFS has also revised the new fixed gear bycatch model, initially used in 2004, for the 2005-2006 fisheries that analyzes observer data from the limited entry fixed gear fisheries.

Data in the trawl bycatch model comes from WCGOP and state fish ticket and logbook programs. The trawl bycatch model for the 2005-2006 fishing years includes updated data from these sources, with data from more recent years weighted more heavily in the model. In addition to updating the data supporting the model, NMFS made three minor revisions to the model's methods used to calculate and apply bycatch ratios.

NMFS's first revision to the trawl model was to calculate bycatch ratios with reference to the total catch of target species, rather than with reference to the landed catch of target species. This refinement has been made possible by observer data, which has given the agency better estimates of total catch. This revision does not change the amounts by which the ratios indicate managers should deduct discards from total catch. However, because the ratios are applied to the larger target (as opposed to landed) catch amounts of target species, there will not be a straightforward comparison between bycatch ratios for the fisheries in 2005 and beyond with those for 2004 and prior.

NMFS's second revision is based on improved data on overfished species distribution. For fisheries in 2005 and beyond, bycatch rates for the northern and southern areas will be divided at 40° 10′ N. lat. for all species except darkblotched rockfish. Northern and southern area bycatch rates for darkblotched rockfish, a slope species, will be divided at 38° N. lat. for depths greater than 150 fm (274 m), where darkblotched commonly occurs. Bycatch rates for trawlers operating north of 40° 10′ N. lat. have also been adjusted to account for new 2005-2006 gear requirements for vessels operating in the northern area and shoreward of the trawl RCA. Vessels operating in this northern area will be required to use “selective flatfish trawl gear,” which the ODFW developed in cooperative experiments with the fishing industry.

NMFS's third revision is to reinstate seasonal distributions of bycatch rates. When NMFS had relied on pre-WCGOP observer data to populate its bycatch model, that data had been abundant enough to seasonally stratify co-occurrence ratios for overfished species taken in target species' fisheries. The model for the 2004 fishing year eliminated observer data from programs other than WCGOP in order to use the most recent data on the fishery. Because there was not enough WCGOP data for that model to show seasonal trends in co-occurrence ratios, the model was initially applied to the fisheries in 2004 without seasonal stratification of those ratios. Now that NMFS has sufficient WCGOP data to detect seasonal trends in co-occurrence ratios, the model revised inseason for 2004 fisheries and used to develop 2005-2006 management measures allows NMFS to reintroduce seasonally-stratified management. By seasonally-stratifying fishing effort, NMFS is better able to develop landings limits for target species that emphasize fishing in times and areas where those species may be taken with lower bycatch of overfished species.

NMFS expects to continue to review and evaluate its trawl bycatch model, and to update that model with new WCGOP data. For 2004 and beyond, NMFS also developed an independent bycatch model for the limited entry, primary fixed gear sablefish fishery. The trawl bycatch model is based in part on the two-month cumulative limit period structure of the trawl fishery. For these two-month periods, the Council and NMFS set landings limits for a range of species with the expectation that not all trawl participants will attain the limits for all species during each period. Conversely, the limited entry primary sablefish season is a 7-month cumulative limit period with limits set for one species. Few participants in this fishery fail to attain their tier limits within the 7 month season. Additionally, most participants are able to take their tier limits within several weeks' time, which allows each participant to choose when during the season he or she will directly target sablefish. The trawl bycatch model is essentially a model of the expected behavior of fishery participants how much of each species will be retained or discarded given varying cumulative limits for target species. The limited entry fixed gear primary sablefish season has a structure that allows different and more flexible behavior than the trawl cumulative limit fishery. As a result, NMFS needed to modify its approach to bycatch modeling to better reflect fishermen's behavior in the primary sablefish fishery.

NMFS faced several challenges in developing a bycatch model for the primary sablefish fishery. Unlike the trawl cumulative limit periods, the 7 month season is a new development. Prior to 2001, this fishery was an open competition derby of 5-10 days in duration. In 2001, NMFS approved Amendment 14 to the FMP, which allowed vessels with limited entry permits and sablefish endorsements to participate in a lengthened season during which they would have ample opportunity to take their tier limits. The 2001 season was 2.5 months long, but the seasons in 2002 and 2003 were 7 months long. The flexibility of these longer seasons, coupled with the relative lack of historical data on how vessels might behave during the longer season has made modeling vessel behavior more challenging than for the trawl fishery. And, unlike participants in the trawl fishery, primary sablefish season participants are not required to carry state logbooks. State trawl logbook data is used in the trawl bycatch model to assess basic fishing behavior across the fleet, such as where and when vessels are fishing.

To address the longer fixed gear sablefish season, the fixed gear bycatch model uses fleetwide, season-long estimates of discard and bycatch, applying those estimated rates to the total catch of sablefish allocated to the fishery. NMFS accounted for the newness of the longer sablefish season by weighting the observer data within the model such that data from 2003 observations was more heavily weighted than data from 2002 and 2001. At the April 2004 Council meeting, NMFS reported to the Council on its new fixed gear bycatch model and the results of its WCGOP observations of the primary sablefish season. The Council recommended that NMFS use observer program data in a model specific to the fixed gear fisheries to re-calculate 2004 sablefish tier limits based on revised estimates of sablefish discard. NMFS initially made the revised sablefish tier limits effective May 1 (69 FR 25013, May 5, 2004) and later had to revise those limits to correct a calculation error (69 FR 38857, June 29, 2004).

Proposed tier limits for the 2005-2006 primary sablefish season were based on the results of WCGOP observations of this fishery and on the fixed gear bycatch model. The tier limits were set to account for the sablefish discard in the primary fishery, with nontrawl RCA boundaries set to reduce bycatch of overfished species. For fishing in depths greater than 100 fm (183 m), the offshore boundary of the nontrawl RCA, the bycatch model showed bycatch of canary, darkblotched and yelloweye rockfish to be less than 0.2 percent of the catch of sablefish in weight, regardless of gear type or time of year fished. The bycatch of widow rockfish and POP was less than 0.1 percent of the catch of sablefish in weight, regardless of gear type or time of year fished. The bycatch of lingcod was higher, up to 1.6 percent of the weight of the sablefish catch, for vessels using pot gear. Observer data showed no catch of bocaccio or cowcod, but observations of this fleet were taken north of Fort Bragg, CA. Bocaccio and cowcod are southern species and NMFS is expanding its observer coverage southward to better determine whether they are taken incidentally in the primary sablefish fishery south of Fort Bragg, CA. Fishing observed in waters deeper than 150 fm (274 m) showed somewhat lower than expected bycatch ratios for shelf species and modestly higher than expected bycatch ratios for slope species, darkblotched rockfish and POP, regardless of gear type or time of year

fished. Even at 150 fm (274 m), POP bycatch was under 0.07 percent of sablefish catch by weight, and darkblotched rockfish bycatch was under 0.4 percent of sablefish catch by weight.

For the 2005-2006 non-trawl fisheries, cumulative trip limits for species other than sablefish were not changed as a result of the primary sablefish season bycatch model. NMFS does not believe that observer data from the primary sablefish season accurately reflects limited entry fixed gear fleet activities outside of the primary sablefish season, and is still gathering data to better characterize bycatch in that fishery. When observer data from the third year of WCGOP (September 2003 through August 2004) becomes available in early 2005, NMFS will analyze that data to determine whether it can develop a model for bycatch in the nontrawl limited entry and open access fisheries outside of the primary sablefish fishery. This nontrawl bycatch model could then be used to assess 2005-2006 landings limits and RCA boundaries to determine whether inseason changes were needed to adequately protect overfished species. Proposed 2005-2006 nontrawl landings limits for species other than sablefish are connected to trawl landings limits established by the trawl bycatch model. Nontrawl gear vessels are prohibited from retaining overfished species that are routinely caught by nontrawl gear and which cannot sustain incidental landings limits allowances, such as canary rockfish, yelloweye rockfish and cowcod.

Management Measures to Reduce Bycatch

As mentioned earlier in this section, the third part of NMFS's bycatch reduction strategy is a series of management programs intended to either directly control fishing activities or to create incentives for bycatch reduction. NMFS has implemented a wide array of fishery management measures intended to minimize bycatch and bycatch mortality over the past several years. The agency has supported full retention and/or full utilization exempted fishing permit (EFP) programs for the Washington arrowtooth flounder trawl, yellowtail rockfish trawl and longline dogfish fisheries, and for the California flatfish trawl fishery. NMFS has also supported an Oregon EFP to experiment with modifying trawl net design to reduce bycatch. A lower-bycatch trawl net requirement based on the results of that EFP would be introduced for 2005-2006 through the final rule for this action. This gear features a headrope set back from a flattened net body to capture low-swimming flatfish while allowing rockfish to escape over the upper edge of the trawl net. Because the net tends to be most effective at reducing rockfish bycatch in nearshore waters, it will be required only shoreward of the trawl RCA. CDFG will be experimenting with a similar flatfish-targeting net in 2004 and/or 2005. If the selective flatfish net proves equally effective at reducing rockfish bycatch south of 40°10' N. lat., NMFS expects to implement future requirements for this gear in the southern area as well.

In addition to EFP-based experiments with gear types and fishing areas, NMFS has implemented shorter-than-year-round fishing seasons for various species and sectors of the groundfish fleet to protect overfished groundfish species. NMFS and the Council have also reduced overcapacity in the fleets, ultimately reducing the number of vessels on the water. Amendment 14 to the FMP implemented a permit stacking program for the limited entry fixed gear fleet that reduced the number of vessels participating in the primary sablefish fishery by about 40 percent. In late 2003, NMFS implemented a buyback of limited entry trawl vessels and their permits, reducing the groundfish trawl fleet by about 35 percent.

Since 2000, NMFS has required gear modifications that restrict the use of trawl gear in rockier habitat coastwide, and that constrain the catching capacity of recreational fishing gear off California. Higher groundfish landings limits have been made available for trawl vessels using gear or operating in areas where overfished species are less likely to be taken. Species-to-species landings limit ratios have been thoroughly examined in the bycatch model mentioned earlier, and are re-examined each year as new observer program data become available. And, NMFS has implemented a suite of coastwide marine protected areas known collectively as the GCAs, in which different types of groundfish fishing activities are prohibited.

Some of NMFS's bycatch minimization measures are provided in the FMP and others have been implemented through regulatory action. NMFS has been exploring whether to include more of these measures, as well as new bycatch reduction measures, into the FMP through a draft programmatic EIS on its bycatch reduction program (69 FR 9313, February, 27, 2004). In winter 2004-2005, NMFS will work with the Council to develop amendatory language for the FMP that comports with the Council's preferred alternative from the FEIS. NMFS anticipates that this FMP amendment, which will likely be numbered Amendment 18, will be made available to the public in the Council process this fall and through the Magnuson-Stevens Act public notice-and-comment process in 2005.

2005-2006 Fishery Management Measures

As in past years, the Council's overriding goal in developing the fishery management measures for 2005-2006 was to meet overfished species rebuilding plan objectives for those years. On April 30, 2004 (69 FR 23667), NMFS declared the Pacific whiting biomass to be above BMSY, which leaves eight West Coast groundfish species characterized as overfished. Overfished species rebuilding plans for each species are discussed earlier in this document. Within the constraints of protecting overfished species, the Council's management measures recommendations are also intended to allow fishery participants as much access to healthy stocks as possible.

Of the management measures intended to protect overfished species, protective measures for canary rockfish coastwide, yelloweye rockfish north of 40° 10′ N. lat., and bocaccio south of 40° 10′ N. lat. are the most constraining. Canary rockfish and bocaccio in particular are caught in a wide array of fisheries and are distributed broadly on the continental shelf. For 2005-2006, the Council has recommended continuing the use of RCAs that are gear specific and which close groundfish fishing over much of the continental shelf. As in 2004, there will be separate RCA closures for commercial trawl fisheries, commercial nontrawl fisheries, and recreational fisheries. These gear- and sector-specific closures are intended to reflect the varied effects that each sector has on particular overfished species. For example, yelloweye rockfish is a northern species that is taken almost exclusively with hook-and-line gear. As a result, the Washington recreational fisheries are still prohibited within the YRCA and nontrawl commercial fisheries are prohibited over northern continental shelf areas where yelloweye rockfish are commonly found. Limited entry vessels will continue to be monitored for compliance with RCA requirements by the West Coast vessel monitoring system (VMS). The Council plans to discuss expanding VMS requirements to the open access fisheries at its September and November 2004 meetings.

In addition to RCAs for the commercial and recreational fisheries, routine management measures for

commercial groundfish fisheries will continue to include trip limits, size limits, differential trip limits by gear type, and closed seasons. The recreational fisheries will use these same management measures, with bag limits in lieu of trip limits, plus boat limits, hook limits, and dressing requirements. On August 3, 2004 (69 FR 46448), NMFS published an emergency rule to establish routine management measures authority to close the whiting primary season fisheries by sector before the sector's whiting allocation is reached, to minimize impacts on overfished species. The action established a mechanism that can be used to quickly close the commercial whiting primary season fisheries if NMFS estimates that the incidental catch of an overfished species is too high. With this rule, NMFS is proposing to provide that same routine authority in 2005 and beyond. Also new for 2005 and beyond is a bycatch-reducing gear requirement for trawlers operating north of 40° 10′ N. lat., which is explained below in the section on Limited Entry Trawl Fishery Management Measures.

In addition to the management measures recommended by the Council, NMFS is proposing with this rule to prohibit the transfer of fish at sea, except for vessels participating in either the catcher-processor or mothership sectors of the whiting fisheries. At-sea transfers of groundfish are not traditional in West Coast fisheries and the fisheries data-gathering systems are not designed to accommodate the transfer and purchase of groundfish at-sea. West Coast groundfish landings, except for in the at-sea whiting fishery, are monitored as they are landed on shore. NMFS is proposing this measure to improve enforcement of landings limits and to better ensure that groundfish entering the market are tracked and accounted for.

The management measures proposed in this rule are only one piece of the overall management strategy for West Coast groundfish. NMFS will continue to require vessels to carry and operate VMS units to monitor fishing locations, and to carry observers when requested by NMFS. NMFS and the states will be conducting up to 23 stock assessments over the next two years, which will inform the 2007-2008 specifications and management measures process and provide a gauge for rebuilding progress. In December 2003, NMFS implemented a trawl vessel and permit buyback program that reduced fleet participation by about 35 percent. The agency will continue to work with the Council to craft capacity reduction measures for the different sectors of the fleet. Also in 2005, NMFS plans to complete an environmental impact statement EIS (EIS) on West Coast groundfish essential fish habitat. Information in this EIS should be useful to the Council in evaluating and improving its overfished species rebuilding measures and in setting its 2007-2008 management measures.

As discussed in the introductory Background text for this notice, NMFS has reorganized its regulations at 50 CFR 660 subpart G to accommodate codifying the fishery specifications and management measures into the Code of Federal Regulations. Routine management measures, as identified at § 660.370 and implemented in §§ 660.381 through 660.385 and in Tables 3-5 of subpart G, will continue to be available for revision through the inseason management process. Overfished species rebuilding parameters, which were formerly at § 660.370, are now at § 660.365. Overall fishery management measures are found at § 660.370. In addition to the fishery-specific management measures provided in §§ 660.381 through 660.385 and Tables 3-5 of subpart G, NMFS plans to continue its past practice of implementing separate management measures for black rockfish, sablefish, and Pacific whiting fisheries. Management measures specific to the black rockfish fisheries are found at § 660.371. Management measures for the nontrawl sablefish fisheries are found at § 660.372, although daily/weekly sablefish limits are found in Tables 4 and 5 (North) and Tables 4 and 5 (South) of subpart G. Management measures for the primary Pacific whiting season are found at § 660.373, although trip limits for vessels operating outside of the primary season are found in Tables 3 (North) and (South) of Subpart G. Coordinates bounding the Groundfish Conservation Areas are found at §§ 660.390 through 660.394.

Limited Entry Trawl Fishery Management Measures

Limited entry trawl fishery management measures for 2005-2006 reflect recent changes in the composition of the trawl fleet and information about its activities. As discussed earlier in this notice, NMFS has incorporated a second year's worth of observer data into the trawl bycatch model. Using this second year of data allows the model to better characterize the fishery by seasons by comparing data between years. This model stability allows NMFS to develop trawl trip limits that reflect co-occurrence ratios between healthy target species and overfished species, and which vary based on the size of the trawl RCA. Trawl trip limits are moderately higher than in recent years, largely because the trawl vessel/permit buyback program reduced the number of vessels participating in the fishery by about 35 percent. With fewer vessels participating in the fishery, each individual vessel may be allowed to access higher trip limits. Flatfish trawl trip limits for vessels using small footrope trawl gear shoreward of the trawl RCA and north of 40° 10′ N. lat. are higher than in recent years in part because NMFS is proposing to require trawlers to use gear that reduces rockfish bycatch in this area. The CDFG is conducting an experiment in 2004 with this same gear to determine whether it could be effective in reducing rockfish bycatch in flatfish trawl fisheries that occur south of 40° 10′ N. lat.

Of the overfished species found north of 40°10′ N. lat., the trawl RCA is designed primarily to protect canary rockfish, although its location also provides protection for other, northern overfished species such as widow, yelloweye and darkblotched rockfishes and lingcod. The trawl RCA has an eastern boundary of coordinates approximating 75 fm (137 m) in the winter months of January-February and November-December, and eastern boundary of coordinates approximating 100 fm (183 m) in March-October, and a western boundary of coordinates approximating 150 fm (274 m) throughout the year. Flatfish tend to aggregate for spawning in the winter and may be harvested during winter months with lower bycatch of non-target species. Trawl trip limits for flatfish are set higher during the winter months to allow vessels to target flatfish species OYs during times when bycatch of overfished species is lower.

Throughout the year, flatfish trip limits are lower shoreward of the trawl RCA than offshore of the RCA. Canary rockfish are most commonly distributed in 50-100 fm (91-183 m) depths, which means that vessels operating inshore of the RCA are more likely to encounter canary rockfish than those operating seaward of the RCA. To reduce incidental take of canary rockfish shoreward of the RCA, vessels operating in the area north of 40° 10′ N. lat. are required to use selective flatfish trawl gear. Selective flatfish trawl gear catches flatfish with lower rockfish bycatch rates; therefore, the flatfish limits north of 40°10' N. lat. are higher than they would have been without this gear requirement. Because canary rockfish is more likely to be taken in the flatfish fisheries than in the deepwater complex

fisheries, the trawl RCA is larger during the winter months, when trawl vessels are provided more flatfish fishing opportunities.

Seaward of their RCA, trawlers north of 40° 1′' N. lat. target continental slope species in addition to flatfish species. Continental slope species include DTS complex species, minor slope rockfish, and POP. Of these, darkblotched rockfish (a minor slope rockfish species) and POP are considered overfished. DTS complex species 2005-2006 limits are most constrained by the need to keep the fisheries within the shortspine thornyhead OY. Minor slope rockfish and POP limits are set at levels that are expected to allow vessels targeting DTS species to retain their incidentally caught slope rockfish. Because the trawl RCA includes areas of slope rockfish abundance and because the shortspine thornyhead OY constrains DTS complex fishing, NMFS expects 2005-2006 darkblotched rockfish and POP catch to stay well below the OYs for those species. DTS limits for 2005-2006 will be higher during the summer months when vessels have less access to flatfish. As in past years, trawl vessels are only permitted to use large footrope gear seaward of their RCA, but prohibited from using large footrope gear shoreward of the RCA.

Canary rockfish rebuilding requirements and the shortspine thornyhead OY are also the most constraining factors for the trawl fishery south of 40° 10′ N. lat. Canary rockfish is a shelf rockfish species, like bocaccio, and NMFS expects that management measures to protect canary rockfish will constrain the fisheries such that the bocaccio OY is not achieved in 2005 or 2006. Off the mainland coast of California, the trawl RCA boundaries are similar to those north of 40° 10′ N. lat.: bounded by coordinates approximating 75 and 150 fm (137 and 274 m) in January-February and November December, and by coordinates approximating 100 and 150 fm (183 and 274 m) in March-October. Between 40° 10′ N. lat. and 34° 27′ N. lat., the State of California also prohibits trawling between the shoreline and the 10 fm (18 m) depth contour around the Farallon Islands. South of 34° 27′ N. lat., the trawl RCA around islands extends from the shoreline to a boundary approximating the 150 fm (274 m) depth contour. As in past years, groundfish trawling will be prohibited within the Cowcod Conservation Areas (CCAs), defined at §§ 660.390 through 660.394.

Trawl management measures for flatfish trawl fisheries south of 40° 10° N. lat. are similar to those set for the northern area. Landings limits are higher and the trawl RCA is more restrictive during winter months to allow vessels access to more abundant flatfish stocks during their aggregation period without increasing overfished species bycatch. Trawlers who operate south of 40° 10′ N. lat. requested that the Council develop continental slope species limits that were the same for each two-month cumulative period throughout the year, within the constraints of the shortspine thornyhead OY. Southern area trawlers have less dangerous winter weather than those operating north of 40° 10′ N. lat., thus are more able to choose a management strategy of unchanging landings limits within the constraints of overfished species rebuilding requirements. Because management measures that protect canary rockfish will also notably restrict the incidental catch of bocaccio, the Council is allowing some targeting of a healthy stock that co-occurs with bocaccio, chilipepper rockfish. Vessels that target chilipepper with large footrope gear seaward of the RCA or with midwater trawl gear will be allowed higher chilipepper landings limits in May-August.

Taken as a whole, trawl management measures to protect canary rockfish are also expected to provide protections to co-occurring overfished species coastwide. Continental shelf overfished species (lingcod, bocaccio, cowcod, widow rockfish, and yelloweye rockfish) will be protected by RCAs and trip limit structures intended to constrain the incidental catch of canary rockfish. Cowcod will continue to be protected by CCA closures off the Southern California Bight. While lingcod is not yet rebuilt, it is abundant enough that it no longer constrains fisheries for co-occurring species. Trawl limits for lingcod are still at incidental take levels to discourage vessels from targeting lingcod.

Widow rockfish will also benefit from some management measures to protect canary rockfish; however, widow rockfish is commonly taken in midwater trawl fisheries and requires additional protective management measures. Coastwide, landings limits for continental shelf rockfish are kept at incidental levels for bottom trawl gear, except for the chilipepper opportunity described earlier. North of 40° 10′ N. lat., where widow rockfish are more commonly found, NMFS proposes to provide incidental widow rockfish landings limits for the primary whiting midwater trawl fishery. In 2004, NMFS set the Pacific whiting OY much lower than the stock's abundance would have allowed in order to protect co-occurring widow rockfish (69 FR 23367, April 30, 2004). NMFS anticipates setting the 2005 and 2006 Pacific whiting OYs such that the whiting harvest levels continue to be constrained by the amount of widow rockfish available for incidental retention.

Management measures for the limited entry trawl fishery, including gear requirements, are found at § 660.381, with management measures specific to the primary Pacific whiting season found at § 660.373. Trawl trip limits are found in Table 3 (North) and Table 3 (South) of Subpart G of Part 660.

Limited Entry Fixed Gear Fishery Management Measures

Like their trawler counterparts, participants in the limited entry fixed gear fishery have their fishing opportunities most constrained by the need to protect canary rockfish. Darkblotched rockfish and POP are not as much of a concern for nontrawl gear, as these species are almost exclusively taken with trawl gear. Yelloweye rockfish, however, tends to be more susceptible to hook-and-line gear than to trawl gear. Thus, the Council developed management measures for nontrawl fisheries primarily oriented at protecting canary rockfish coastwide, yelloweye rockfish north of 40° 10′ N. lat., and bocaccio and cowcod south of 40°10' N. lat.

The nontrawl RCA, which applies to both limited entry and open access nontrawl gear, would have the same boundaries in 2005-2006 as it had in 2004. Between the U.S. border with Canada and 46° 16′ N. lat. (Washington/Oregon border), the nontrawl RCA extends from the shoreline to a boundary approximating the 100 fm (183 m) depth contour. Between 46° 16′ N. lat. and 40° 10′ N. lat., the nontrawl RCA lies between boundaries approximating the 30 fm (55 m) and 100 fm (183 m) depth contours. Between 40° 10′ N. lat. and 34° 27′ N. lat., the shoreward boundary of the nontrawl RCA is a line approximating the 30 fm (55 m) depth contour in January-April and September-December) and the 20 fm (37 m) in May-August. Throughout the year, the western boundary of the nontrawl RCA for the area between 40° 10′ N. lat. and 34° 27′ N. lat. is a boundary approximating the 150 fm depth contour. South of 34° 27′ N. lat., the nontrawl RCA lies between boundaries approximating the 60 fm (110 m) and 150 fm (274 m) depth contours. These RCA boundaries are intended to encourage the nontrawl fleets to fish off of the continental shelf, to protect overfished shelf species susceptible to nontrawl gear. Bocaccio is more frequently caught between 40° 10′

N. lat. and 34° 27′ N. lat. than south of 34° 27′ N. lat., thus the Council proposed a more broad closed area for waters off the central California coast. The CCAs off the Southern California Bight will again be closed to commercial groundfish fishing to prevent vessels from fishing in areas of higher cowcod abundance.

Landings limits for the limited entry fixed gear fleet north of 40°10' N. lat. provide vessels with access to continental slope and nearshore species, while closing access to continental shelf species. Retention of canary and yelloweye rockfish is prohibited throughout the year. As in past years, landing lingcod will be prohibited in January-April and in November-December to protect lingcod during their spawning and nest-guarding season.

For waters south of 40° 10′ N. lat., the Council also developed landings limits intended to draw vessels away from continental shelf species. Retention of canary rockfish, yelloweye rockfish, and cowcod is prohibited throughout the year and only minimal levels of bocaccio retention are permitted. Also similar to the northern area, lingcod retention is only permitted during May-October. Unlike in 2004, closed seasons in the southern area would be aligned both north and south of 34°27' N. lat. Landings of minor nearshore, minor shelf, bocaccio, widow, and yellowtail rockfish, as well as of California scorpionfish will be prohibited in March-April from 40°10' N. lat to the U.S. border with Mexico.

As discussed earlier in the section on bycatch and discard management, NMFS has developed a new bycatch model for the limited entry primary sablefish season. This model indicates somewhat lower overfished species bycatch rates in the primary sablefish season than the agency had previously estimated. However, the sablefish stock assessment, which was prepared in 2001 and updated for 2002, indicates a declining ABC/OY for sablefish over 2005-2006. Thus the limited entry sablefish tier limits will be lower in 2005 than in 2004 and lower again in 2006. The proposed tier limits for 2005 are: Tier 1 at 64,100 lb (29,075 kg), Tier 2 at 29,100 lb (13,200 kg), and Tier 3 at 16,600 lb (7,530 kg). The proposed tier limits for 2006 are: Tier 1 at 62,700 lb (28,440 kg), Tier 2 at 28,500 lb (12,927 kg), and Tier 3 at 16,300 lb (7,394 kg). The primary sablefish season is open from April 1 through October 31, north of 36° N. lat. Both north and south of 36° N. lat., the daily and/or weekly sablefish trip limits are proposed to be the same in 2005 and 2006 as in 2004. The daily trip limit fishery often does not reach its full allocation, so NMFS does not expect that allowing the same landings limits as in 2004 will risk exceeding the sablefish OY. These and all other landings limits may be adjusted inseason to keep catch within allowable levels.

Management measures for the limited entry fixed gear fishery, including gear requirements, are found at § 660.382, with management measures specific to the primary sablefish season found at § 660.372. Trip limits are found in Table 4 (North) and Table 4 (South) of Subpart G of Part 660.

Open Access Nontrawl Gear (Hook-and-Line, Troll, Pot, Setnet, Trammel Net) Fisheries Management Measures

The open access nontrawl fishery is managed separately from the limited entry fixed gear fishery, but overfished species protection measures are similar for both sectors. The nontrawl RCA boundaries that apply to the limited entry fixed gear fleet also apply to the open access nontrawl fleet, as do the CCAs. Also similar to the limited entry fleet, greater landings limits are provided for continental slope and nearshore species, with closed seasons and lower limits for continental shelf species, including the same closed periods for lingcod as in the limited entry fixed gear fisheries. North of 40° 10′ N. lat., salmon trollers will be permitted to retain and land up to 1 lb (.45 kg) of yellowtail rockfish for every 2 lb (.9 kg) of salmon landed, up to 200 lb (91 kg) per month, both within and outside of the RCA. As in past years, thornyheads may not be taken or retained in the open access fisheries north of 34° 27′ N. lat.

Open access cumulative limits may sometimes be set higher than those for limited entry vessels. If a vessel with a limited entry permit uses open access gear (including nongroundfish trawl gear) and the open access cumulative limit is larger, the vessel will be constrained by the smaller limited entry cumulative limit for the entire cumulative limit period. Management measures for the open access fisheries, including gear requirements, are found at § 660.383. Trip limits are found in Table 5 (North) and Table 5 (South) of Subpart G of Part 660.

Open Access Non-Groundfish Trawl Gear Fisheries Management Measures

Open access non-groundfish trawl gear (used to harvest ridgeback prawns, California halibut, sea cucumbers, and pink shrimp) is managed with “per trip” limits, cumulative trip limits, and area closures. These trip limits are similar to those in 2004. The species-specific open access limits apply but vessels may not exceed overall groundfish limits. As in past years, the pink shrimp fishery is subject to species-specific limits that are different from other open access limits for lingcod and sablefish. As in past years, thornyheads may not be taken or retained in the open access fisheries north of 34° 27′ N. lat.

Trawling with open access non-groundfish gear for pink shrimp will be permitted within the trawl RCA; however, the states require pink shrimp trawlers to use finfish excluder devices to reduce their groundfish bycatch, particularly to protect canary and other rockfishes. Off California, trawling for ridgeback prawns, California halibut, and sea cucumber is prohibited within the trawl RCA. All open access trawlers, except for those trawling for pink shrimp coastwide and ridgeback prawns south of 34° 27′ N. lat. are subject to the same trawl RCA boundaries. South of 34°27′ N. lat., ridgeback prawn trawl vessels, which operate in flat bottom areas, are subject to an RCA closure between boundaries approximating the 100 fm (183 m) and 150 fm (274 m) depth contours. These finfish excluders and RCA restrictions off California are particularly intended to protect southern and coastwide overfished species such as bocaccio, cowcod, canary rockfish, and lingcod. Cowcod prohibitions and closures continue to apply to all open access vessels. Management measures for the open access fisheries, including gear requirements, are found at § 660.383. Trip limits are found in Table 5 (North) and Table 5 (South) of subpart G of part 660.

Recreational Fisheries Management Measures

Recreational fisheries management measures are designed to protect overfished and nearshore species while also allowing favorable fishing seasons. Overfished species that tend to be vulnerable to recreational fisheries are lingcod, bocaccio, cowcod, and canary and yelloweye rockfish. Because sport fisheries are more concentrated in nearshore waters, the 2005-2006 recreational fishery management measures are also intended to provide protections for nearshore species such as black rockfish and cabezon. These protections are particularly important for fisheries off California, where the bulk of West Coast recreational fishing tends to occur. Washington, Oregon, and California each proposed, and the Council recommended, different combinations of seasons, bag limits, and size limits to best fit the needs and

constraints of their recreational fisheries.

Off Washington, recreational fishing for groundfish and halibut will continue to be prohibited inside the YRCA, a C-shaped closed area off the northern Washington coast. Coordinates for the YRCA are defined at 50 CFR 660.390. The groundfish bag limit off Washington will remain the same as in 2004: 15 aggregate bottomfish bag limit; 10 rockfish sub-limit with no retention of canary or yelloweye rockfish; 2 lingcod sub-limit, with a minimum size of 24 inches (61.4 cm). The lingcod seasons in 2005 and 2006 will be the same as in 2004, beginning on the Saturday in March closest to March 15th, and ending on the Saturday in October closest to October 15th. In 2005, recreational fishing for lingcod off Washington will be open from March 12 through October 15. In 2006, recreational fishing for lingcod will be open from March 18 through October 14. If the recreational harvest guideline for canary rockfish, yelloweye rockfish, or lingcod specified for the Washington/Oregon area is projected to be exceeded, the Washington Department of Fish and Wildlife (WDFW) will consult with ODFW on whether to take inseason action to adjust recreational fishery management measures or close all or parts of the recreational fisheries inseason.

Off Oregon, recreational fishing for groundfish will be depth-restricted June through September, when the fishery will be closed offshore of a boundary approximating the 40 fm (73 m) depth contour. Recreational fisheries participation is heaviest during these months and this closure is intended to move the groundfish fisheries inshore of the continental shelf to protect canary and yelloweye rockfish. Recreational fisheries off Oregon will retain their 10-marine fish bag limit, which includes all rockfish, greenling species, cabezons, and other marine species, but excludes salmon, lingcod, halibut, perches, sturgeon, sanddabs, striped bass, tuna, and baitfish. As in waters off Washington, retention of yelloweye and canary rockfish will be prohibited. The lingcod bag limit will remain at 2 fish per day, and the size limit will remain at 24 inches (61.4 cm). As discussed in the paragraph on Washington recreational fisheries, ODFW plans to consult with WDFW on inseason actions if canary rockfish, yelloweye rockfish, or lingcod harvest guidelines are projected to be exceeded.

The California Department of Fish and Game (CDFG) and its recreational fisheries constituents developed a series of management measures intended to constrain the recreational fisheries enough to keep total mortality within appropriate set asides and harvest guidelines. For 2005-2006, the Council adopted CDFG's recommendation to divide the recreational fisheries off California into four separate regions: the Oregon/California border to 40°10′ N. lat.; 40°10′ N. lat. to 36° N. lat.; 36° N. lat. to 34° 27′ N. lat., and; 34°27′ N. lat. to the U.S./Mexico border. Season and area closures differ between California regions to better protect overfished species according to where those species occur and where fishing effort is strongest. In addition to the region-specific management measures, the Council has proposed a California-wide combined bag limit for the Rockfish-Cabezon-Greenling complex of 10 fish per day. Bag limits are only available when seasons are open. Fishing for lingcod will be closed California-wide in January-March and in December to protect lingcod during its spawning and nesting season. As in Oregon and Washington, there will be a 2-fish lingcod bag limit and a size limit of 24 inches (61.4 cm) for sport fisheries off California. The season and area closures described below would apply only to ocean fishing vessels, not to divers or to shore-based anglers.

Between the Oregon/California border (42° N. lat.) and 40°10′ N. lat., the recreational fishery will be open July through October in waters shallower than a boundary approximating the 40 fm (73 m) depth contour. Between 40°10' N. lat. and 36° N. lat., the recreational fishery will be open July through November, in waters shallower than a boundary approximating the 20 fm (37 m) depth contour. These northern California waters seasons and area closures are intended to protect lingcod and canary rockfish, as well as to limit the catch of black rockfish. The more shallow closure between 40°10′ N. lat. and 36° N. lat. is also intended to move vessels inshore of areas of greater bocaccio concentration.

Between 36° N. lat. and 34°27′ N. lat., the fishery will be open May through September in waters between two boundaries approximating the 20 fm (37 m) and 40 fm (74 m) depth contours. South of 34°27′ N. lat. to the U.S. border with Mexico, the fishery will be open from March through June, in waters between two boundaries approximating the 30 fm (55 m) and 60 fm (110 m) depth contours. In this same region, the fishery will continue to be open from July through September in waters shallower than a boundary approximating the 40 fm (74 m) depth contour. These time and area closures are intended to protect canary rockfish in the southern edge of its range and to protect bocaccio. Cowcod continue to be protected in the area south of 34°27' N. lat. by the CCAs, which are closed throughout the year to recreational fishing for groundfish.

In the past few years, CDFG and NMFS have had to implement inseason management measures changes for the recreational fisheries to constrain fishing effort. Because there are over half a million anglers participating in California's recreational fisheries, it is often challenging for CDFG to ensure that all anglers are apprized of changes to management measures. CDFG proposed for 2005-2006 a package of management measures to strongly constrain their recreational fisheries in part to reduce the chance that it will later need to restrict the fishery and to ensure that participants know of the new restrictions. CDFG hopes that with their proposed package of restrictions there will be either no need for inseason actions, or only a need to liberalize management measures inseason. In March 2004, CDFG launched its new California Recreational Fisheries Survey (CRFS), which is intended to replace the Federal Marine Recreational Fisheries Statistical Survey (MRFSS). CDFG has been using new survey techniques to assess recreational fisheries catch and expects to begin releasing CRFS data in fall 2004. The MRFSS survey of recreational fisheries was designed to provide broad annual data on the recreational fisheries. CRFS, by contrast, is intended in part to support inseason tracking and management of recreational fisheries. CDFG anticipates reviewing its CRFS data and the 2005 and 2006 season structures as the seasons progress to ensure that management measures are adequately restrictive to protect overfished and other groundfish species.

Management measures for recreational fisheries off all three West Coast states are found at § 660.384.

Washington Coastal Tribal Fisheries Management Measures

In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean, and concluded that, in general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes' usual and accustomed fishing areas (described at 50 CFR 660.324).

For those species with tribal allocations, the tribal allocation is subtracted from the species OY before

limited entry and open access allocations are derived. The tribal fisheries for sablefish, black rockfish, and whiting are separate fisheries and are not governed by the limited entry or open access regulations or allocations. The tribes regulate these fisheries so as to not exceed their allocations.

The tribal harvest guideline for black rockfish is the same in 2005 and 2006 as it was in 2004. Also similar to 2004, the tribal sablefish allocation is 10 percent of the total catch OY north of 36° N. lat., less 2.3 percent for estimated discard mortality. For 2005, the tribal sablefish allocation is 748.6 mt, less 17.2 mt for discard mortality, or 731.4 mt. For 2006, the tribal sablefish allocation is 736.3 mt, less 16.9 mt for discard mortality, or 719.4 mt.

From 1999 through 2004, the tribal whiting allocation has been based on a methodology originally proposed by the Makah Tribe in 1998. The methodology is an abundance-based sliding scale that determines the tribal allocation based on the overall U.S. OY, up to a maximum 17.5 percent tribal harvest ceiling at OY levels below 145,000 mt. The tribes have proposed using the same methodology in 2005 and 2006, and the allocation will be calculated based on that methodology once the final whiting OY is determined. No other tribes have proposed to harvest whiting in 2005 or 2006.

The sliding scale methodology used to determine the treaty Indian share of Pacific whiting is the subject of ongoing litigation. In

United States

v.

Washington

, Subproceeding 96-2, the Court held that the methodology is consistent with the Magnuson-Stevens Act, and is the best available scientific method to determine the appropriate allocation of whiting to the tribes. United States v. Washington, 143 F.Supp.2d 1218 (W.D. Wash. 2001). This ruling was reaffirmed in July 2002,

Midwater Trawlers Cooperative

v.

Daley

, C96-1808R (W.D. Wash.) (Order Granting Defendants' Motion to Supplement Record, July 17, 2002), and again in April 2003,

id.

, Order Granting Federal Defendants' and Makah's Motions for Summary Judgment and Denying Plaintiffs' Motions for Summary Judgment, April 15, 2003. The latter ruling has been appealed to the Ninth Circuit, but no decision has been rendered as yet. At this time NMFS remains under a Court order in Subproceeding 96-2 to continue use of the sliding scale methodology unless the Secretary of Commerce finds just cause for its alteration or abandonment, the parties agree to a permissible alternative, or further order issues from the Court. Therefore, NMFS is obliged to continue to use the methodology unless one of the events identified by the Court occurs. Since NMFS finds no reason to change the methodology, it has been used to determine the 2005-2006 tribal allocations.

In addition, with respect to the 2005-2006 treaty Indian allocations of Pacific whiting, NMFS has reviewed the scientific information set forth in the Declaration of William L. Robinson dated April 26, 2002, and the Declaration of Dr. Richard D. Methot, Jr., dated April 18, 2002, which were submitted with the Federal Defendants' Statement Regarding Remand in

Midwater Trawlers Cooperative

v.

Department of Commerce

, No. C99-1415BJR and No. C99-1500BJR (Consolidated) (W.D. Wash.). NMFS has no additional information that would change the conclusions in these declarations on the distribution and migratory pattern of the stock. Therefore, NMFS is relying on the information in those declarations as the best scientific information currently available. Accordingly, NMFS finds that the 2005-2006 treaty Indian allocations of Pacific whiting, which are based on the sliding scale methodology that has been in use since 1999, are based on the best scientific information available, and are within the Indian treaty right as described in

Midwater Trawlers Cooperative

v.

Department of Commerce

, 282 F.3d 710, 718 (9th Cir. 2002). NMFS has rejected and continues to reject the so-called “biomass” method of calculating the treaty right. As stated in

U.S.

v.

Washington

, Subproceeding 96-2, 143 F. Supp.2d 1218, 1223-1224 (W.D. Wash. 2001), the biomass method is not required for conservation and underestimates the quantity of fish that pass through the tribal usual and accustomed fishing grounds, and hence it cannot serve as the basis for calculating the treaty share. Also, application of the biomass method to calculate the treaty Indian allocation of Pacific whiting would illegally discriminate against tribal fishing interests, since the biomass method is not used in management of the non-treaty fishery. Id.; also see

Makah

v.

Brown

, C85-1606R, Order on Five Motions Relating to Treaty Halibut Fishing at 6 (W.D.Wash. Dec. 29, 1993).

For some species, on which the tribes have a modest harvest, no specific allocation has been determined. Rather than try to reserve specific allocations for the tribes, NMFS is establishing trip limits recommended by the tribes and the Council to accommodate modest tribal fisheries. For lingcod, all tribal fisheries are restricted to 600 lb (272 kg) per day and 1,800 lb (816 kg) per week, except for in the treaty salmon troll fishery, which would be limited to 1,000 lb (454 kg) per day and 4,000 lb (1,814 kg) per week. Tribal fisheries will be managed to a 50 mt lingcod harvest guideline in 2005 and 2006, although tribal fisheries may take as much as 100 mt if they determine that they are able to fish in times and areas where additional lingcod harvest does not result in increased take of canary rockfish above the level the tribes have projected will be taken in 2005 and 2006 (

i.e.

, 2.6 mt each year in tribal non-whiting fisheries).

For rockfish species, the 2005-2006 tribal longline and trawl fisheries will operate under trip and cumulative limits. Tribal fisheries will operate under a 300 lb (136 kg) per trip limit each for canary rockfish, thornyheads, and the minor rockfish species groups (nearshore, shelf, and slope), and under a 100 lb (45 kg) per trip limit for yelloweye rockfish. A 300 lb per trip (136 kg) limit for canary rockfish is expected to result in landings of 3.1 mt in both 2005 and 2006. A 300 lb (136 kg) per trip limit for thornyheads is expected to result in landings of 6.7 mt in 2005 and 6.6 mt in 2006. Other rockfish limits are expected to result in the following landings levels: widow rockfish, 40 mt in both years; yelloweye rockfish, 2.4 mt in both years; yellowtail rockfish, 506 mt in both years; minor shelf rockfish excluding yelloweye, 1.3 mt in both years; minor slope rockfish, 23.5 mt. Trace amounts (<1 mt) of minor nearshore rockfish, POP, and darkblotched rockfish may also be landed in tribal commercial fisheries. For 2005 and beyond, tribal fishing regulations as recommended by the tribes and the Council and adopted by NMFS will be found in Federal regulations at 50 CFR 660.385.

Fishing Communities and Impacts

The Magnuson-Stevens Act requires that actions taken to implement FMPs be consistent with the 10 national standards, one of which requires that conservation and management measures shall, consistent with the conservation requirements of the Act, “take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities and, (B) to the extent practicable, minimize adverse economic impacts on such communities.”

Fishing communities that rely on the groundfish resource and people who participate in the groundfish fisheries have weathered many regulatory changes in recent years. NMFS and the Council introduced the first overfished

species rebuilding measures in 2000, which severely curtailed the fisheries from previous fishing levels. Since then, NMFS has implemented numerous management measures and regulatory programs intended to rebuild overfished stocks and to better monitor the catch and bycatch of all groundfish species. These programs are expected to improve the status of West Coast groundfish overfished stocks over time and, by extension, the economic health of the fishing communities that depend on those stocks. Initially, however, the broad suite of new regulatory programs that NMFS has introduced since 2000 have: reduced overall groundfish harvest levels, increased costs of participating in the fisheries, and caused confusion for fishery participants trying to track new regulatory regimes.

For participants in and communities that depend on the trawl fisheries, fishing opportunities will be improved in 2005-2006 over 2003-2004. In December 2003, NMFS bought 91 trawl vessels and their Federal groundfish permits out of the fishery. This buyback reduced the fleet by about 35 percent, allowing increased landings limits for the remaining vessels. The Council developed trawl landings limits for 2005 and 2006 based on the trawl bycatch model. In 2005, the trawl bycatch model will be in its fourth year of use in the fisheries. The model includes more observer data and more recent fisheries data than in past years, which has stabilized estimated bycatch rates from past years' model estimates. Additionally, the Council has recommended a bycatch-reducing gear requirement for the trawl fisheries. The selective flatfish trawl net will be required for use in waters shoreward of the RCA north of 40°10° N. lat. This net has lower rockfish bycatch rates than traditional trawl gear, allowing the Council to set higher landings limits for the more abundant flatfish species that tend to co-occur with some overfished rockfish species. Some trawlers required to use selective flatfish trawl gear will be able to modify their current nets to meet the gear requirements, while others may need to purchase new nets to comply with the regulations. Between a reduced trawl fleet, a stabilized bycatch model, and reduced bycatch rates with the new gear requirements, trawlers will have higher target species fishing opportunities in 2005-2006 than in recent past years. Communities with processing facilities where trawlers make landings, such as Westport, Washington; Astoria and Newport, Oregon; and San Francisco and Moss Landing/Monterey, California, may expect to benefit from higher trawl landings limits in 2005-2006.

Landings limits in the limited entry fixed gear and open access commercial fisheries are proposed to remain stable from 2004 levels. Although the sablefish OY in 2005 is lower than in 2004 and lower still in 2006, estimated bycatch rates based on observer data are lower than NMFS's previous bycatch assumptions for the primary sablefish fishery. Thus, tier limits are lower in accordance with the lower OYs, but higher than they would have been before NMFS incorporated observer data into a model specific to this fishery. Communities that tend to receive non-trawl commercial landings, such as Bellingham and Neah Bay, Washington; Newport and Port Orford, Oregon; and Moss Landing and Crescent City, California may expect to see stable non-trawl landings levels through 2006.

Similar to the non-trawl commercial fleet, the recreational fisheries off Washington and Oregon are proposed to have the same management measures in 2005 and 2006 as in 2004. Groundfish taken in the northern recreational fisheries is often caught by anglers who are primarily targeting more glamorous trophy species, such as salmon or halibut. Thus the economic benefits to charter operations and the social benefits to all anglers of a stabilized groundfish fishery may be affected by as-yet-undetermined 2005-2006 salmon and halibut harvest levels. Coastal communities like Neah Bay, Westport, and Ilwaco, Washington, and Garibaldi, Newport, and Charleston, Oregon support recreational fishing interests and should benefit from the stable groundfish management regime.

Groundfish are available to marine anglers along the length of California's coast, but species composition varies with changing temperature and ecological regimes. California recreational fisheries have differing effects on groundfish abundance, depending on locally-available groundfish species and on alternative target non-groundfish species. For 2005 and 2006, the Council recommended California recreational fisheries measures intended to better tailor management to the species composition and angler participation in the different sections of California's coast. Off the northern coast, black rockfish and lingcod recreational catches have contributed significantly to excessive harvest in recent years. California's recreational fisheries north of 40°10′ N. lat. are proposed to be just four months in duration in 2005 and 2006, which may negatively affect charter operations and pri

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