Pacific Coast Groundfish Fishery; Amendment 11

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 990121026-9229-02; I.D. 112498A]

RIN 0648-AL52

Pacific Coast Groundfish Fishery; Amendment 11

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; announcement of partial approval of an amendment to

a fishery management plan, and

[[Page 49093]]

announcement of stocks characterized as overfished.

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SUMMARY: NMFS announces the approval of Amendment 11 to the Pacific

Coast Groundfish Fishery Management Plan (FMP) except for the bycatch

provisions which were disapproved. NMFS issues this final rule to

implement portions of that amendment that define overfished, identify

essential fish habitat, and comply with other requirements of the

Sustainable Fisheries Act (SFA). This rule also implements Amendment

11's provisions governing the use of fish as compensation for fisher

participation in collecting fishery resource information. NMFS also

announces that it has informed the Pacific Fishery Management Council

(Council) that three stocks managed under the Pacific Coast Groundfish

FMP, Pacific ocean perch, lingcod, and bocaccio, are overfished. These

regulations are intended to improve the types and amount of scientific

information available for use in stock assessments and management of

the Pacific Coast groundfish fishery.

DATES: Effective October 12, 1999.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact

Review (EA/RIR) for Amendment 11 are available from Lawrence D. Six,

Executive Director, Pacific Fishery Management Council, 2130 SW. Fifth

Avenue, Suite 224, Portland, OR 97201.

Comments regarding the reporting burden estimate or any other

aspect of the collection-of-information requirements contained in this

rule should be sent to William Stelle, Jr. Administrator, Northwest

Region, NMFS, 7600 Sand Point Way NE. BIN C157000. Seattle, WA 98115-

0070 or to Rodney R. McInnis, Acting Administrator, Southwest Region,

NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802, and

to the Office of Information and Regulatory Affairs, Office of

Management and Budget (OMB), Washington, D.C. 20503 (ATTN: NOAA Desk

Officer).

FOR FURTHER INFORMATION CONTACT: Katherine King or Yvonne de Reynier at

206-526-6140 or the Pacific Fishery Management Council at 503-326-6352.

SUPPLEMENTARY INFORMATION: The Council submitted Amendment 11 to bring

the Pacific Coast Groundfish FMP into compliance with the requirements

in Section 303 (a) of the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act) that were added by the SFA.

Amendment 11 modifies the FMP framework that defines ``optimum yield''

(OY) for setting annual groundfish harvest limits; sets framework

control rules on defining rates of ``overfishing'' and levels at which

managed stocks are considered ``overfished;'' identifies Pacific Coast

groundfish Essential Fish Habitat (EFH); sets a bycatch management

objective and a framework for bycatch reduction measures; establishes a

management objective to take the importance of fisheries to fishing

communities into account when setting groundfish management measures;

provides authority within the FMP for the Council to require groundfish

use permits for all groundfish users; authorizes the use of fish for

compensation for private vessels conducting NMFS-approved research;

removes jack mackerel from the fishery management unit; and updates FMP

objectives, definitions, and industry descriptions.

The Pacific Coast Groundfish FMP provides a framework for certain

Council actions without requiring cumbersome amendment procedures for

those actions. Portions of this amendment that are designed to meet

several of the new Magnuson-Stevens Act requirements will change the

way the Council manages the groundfish fishery without changing the

regulations that implement the FMP. A new definition of OY, specific

overfishing and overfished levels, and accounting for the needs of

fishing communities in setting fishery management measures will become

part of the guidelines the Council uses to set its annual

specifications and management measures. Amendment 11 provides a

framework to implement fishery management measures to protect

groundfish EFH, which the Council will use to, among other things,

investigate implementing marine research reserves. Amendment 11 also

contains a bycatch management objective; however, NMFS has disapproved

the bycatch provisions of Amendment 11 because they do not adequately

meet Sec. 303(a)(11) and National Standard 9 of the Magnuson-Stevens

Act. These provisions require that conservation and management

measures, to the extent practicable, minimize bycatch and bycatch

mortality. Section 303(a)(11) also requires the establishment of a

standardized reporting methodology to assess the amount and type of

bycatch occurring in the fishery.

This rule implements the portions of Amendment 11 that authorize

the use of fish as compensation for private vessels conducting NMFS-

approved research. This action also makes minor changes to codified

definitions of regulatory terms. Amendment 11 includes a provision to

remove jack mackerel from the fishery management unit (FMU) of the

Pacific Coast Groundfish FMP in order to place it in the FMU of the FMP

for Coastal Pelagic Species. Amendment 8 to the Council's Northern

Anchovy FMP, which renames that FMP as the Coastal Pelagic Species FMP

and incorporates jack mackerel into the Coastal Pelagic Species FMU,

was made available for public comment on March 12, 1999 (64 FR 12279)

through May 25, 1999. Amendment 8 was partially approved on June 10,

1999. Therefore, jack mackerel has now been removed from the FMU of the

Pacific Coast Groundfish FMP and placed in the FMU for the Coastal

Pelagic Species FMP.

The notice of availability for Amendment 11 was published on

December 1, 1998 (63 FR 66111), and NMFS requested public comments on

Amendment 11 through February 1, 1999. A proposed rule to implement

those portions of Amendment 11 that authorize the use of fish for

compensation for private vessels conducting NMFS-approved research, and

that changed some definitions, was published on February 10, 1999 (64

FR 6597). NMFS requested public comments on the proposed rule through

March 29, 1999. During the comment period on the notice of availability

for Amendment 11, NMFS received seven letters of comment, which are

addressed later in the preamble to this final rule. During the comment

period on the proposed rule, NMFS received one letter of comment, which

is also addressed later in the preamble to this final rule, in the

section entitled ``Regulatory Definitions of Terms.''

Partial Approval of Amendment 11; Disapproval of Bycatch Provisions

On March 3, 1999, NMFS approved all of Amendment 11 to the Pacific

Coast Groundfish FMP, except for those portions concerning the

reduction of bycatch and bycatch mortality. Amendment 11 addresses

bycatch through the FMP's framework mechanism, by revising one of the

objectives of the FMP to read, ``Strive to reduce the economic

incentives and regulatory measures that lead to wastage of fish. Also,

develop management measures that minimize bycatch to the extent

practicable and, to the extent that bycatch cannot be avoided, minimize

the mortality of such bycatch. In addition, promote and support

monitoring programs to improve estimates of total fishing-related

mortality and bycatch, as well as those

[[Page 49094]]

to improve information necessary to determine the extent to which it is

practicable to reduce bycatch and bycatch mortality.''

Although NMFS supports the Council's continued use of framework

provisions in the FMP's regulatory structure, the bycatch provisions in

Amendment 11 fail to respond meaningfully to the bycatch requirements

of the Magnuson-Stevens Act. Requirements at Section 303(a)(11) of the

Magnuson-Stevens Act clearly state that an FMP must ``establish a

standardized reporting methodology to assess the amount and type of

bycatch occurring in the fishery, and include conservation and

management measures that, to the extent practicable and in the

following priority--(A) minimize bycatch; and (B) minimize the

mortality of bycatch which cannot be avoided.'' A framework FMP would

not necessarily include regulatory recommendations to reduce bycatch;

however, the FMP's bycatch provisions should fully analyze and describe

the Council's past efforts and planned future efforts to reduce bycatch

and to establish a standardized reporting methodology to assess the

amount and type of bycatch occurring in the groundfish fishery,

including a discussion of all reasonable alternatives to the current

management regime.

The current Amendment 11 analysis on bycatch in the groundfish

fisheries basically states that there is very little information on

bycatch rates in the groundfish fisheries, and that this lack of

information may or may not threaten the long-term health of the fish

stocks and the long-term viability of the fishing industries and

communities that depend on those stocks. There is no assessment of

current bycatch levels in the groundfish fisheries; nor is there an

analysis based on the best available scientific information of the

biological and socio-economic effects of bycatch under current

management measures. The bycatch provisions of Amendment 11 will be

complete when the Council has submitted a full analysis of existing and

possible future efforts to reduce bycatch in the groundfish fisheries,

including a discussion of how bycatch is reduced to the maximum extent

practicable under current management measures, a standardized reporting

methodology that would be used to assess bycatch rates in the

groundfish fishery, and an analysis of all practicable alternatives to

the current year-round trip limit management system that could be

expected to result in a reduction of bycatch rates.

The bycatch definition in Amendment 11 has also been disapproved

because it is inconsistent with the definition of bycatch provided by

the Magnuson-Stevens Act that states, at 16 U.S.C. 1802 (2), ``The term

'bycatch' means fish which are harvested in a fishery, but which are

not sold or kept for personal use, and includes economic discards and

regulatory discards. Such term does not include fish released alive

under a recreational catch and release fishery management program.''

According to Amendment 11, ``[b]ycatch means fish which are harvested

in a fishery, but which are not sold or kept for personal use or

donated to a charitable organization and includes economic and

regulatory discards.'' While NMFS does not deny the positive community

effects of donating landed bycatch to charitable organizations, the act

of donating such fish does not alter the fact that those fish are

defined as bycatch by the Magnuson-Stevens Act. The FMP should use the

Magnuson-Stevens Act definition of bycatch.

Comments and Responses

NMFS received seven letters of comment on Amendment 11 during the

60-day public comment period for Amendment 11 as established by the

Notice of Availability (December 1, 1999, 63 FR 66111). These letters

addressed the major Magnuson-Stevens Act issues in Amendment 11. A

summary of these comments and NMFS' responses thereto, as well as NMFS'

response to one comment received on the proposed rule, appear below in

the following responses to public comments. Of the letters received,

three letters were from marine-focused environmental advocacy

organizations, two letters were from public utilities interests, one

letter was from a public wastewater disposal and sanitation interest,

and one letter was from a law firm writing on behalf of a variety of

unspecified, land-based, commercial interests. Some comments opposed

certain aspects of Amendment 11 provisions on overfishing, bycatch, and

EFH. The other comments concerned only the EFH portion of Amendment 11.

In addition to commenting on the amendment, two of the letters cited

concerns with the NMFS consultation process for non-fishing effects on

EFH. These comments on the EFH consultation process were not directly

on Amendment 11 or on the proposed implementing regulation. NMFS

Northwest Regional Office of Habitat Conservation is dealing with these

consultation concerns. All comments received on Amendment 11 are

summarized and responded to below.

Some of the commenters expressed a concern about, or

misunderstanding of, the mechanics of a framework FMP and frameworking

aspects of Amendment 11. The Council has been using the framework

process since 1990, when it implemented Amendment 4 to the FMP. By

frameworking the goals and actions of the FMP, the Council has

maintained the FMP as a statement of principles with standards and

procedures that allow a variety of implementing actions. Framework FMPs

tend to be less confusing and less cumbersome than FMPs without

frameworks. All Council actions, including those implementing the FMP

and its amendments, are public processes with multiple opportunities

for public review and comment on proposed actions. Public input is not

lost under an FMP's framework procedure. On the contrary, FMP

frameworks give the Council more flexibility to incorporate public-

generated changes and corrections into its proposed actions than FMPs

without frameworks. Framework FMPs also give the Council more

flexibility in how it responds to problems, which, in turn, brings the

public further into the policy-making process as a resource in reaching

solutions to those problems. NMFS continues to support the Council's

frameworking process as providing a public process.

Comments on Overfishing

Comment 1: Although the Council's default framework for avoiding

overfishing is one of the strongest in the nation, the Council adopted

two loopholes that allow excessive fishing. One loophole permits higher

limits than the Council's own default policy, and the second loophole

allows overfishing of single populations in a mixed population fishery.

Both of these loopholes need to be deleted.

Response: NMFS disagrees with this suggested alteration of

Amendment 11. The Magnuson-Stevens Act requires that FMPs be consistent

with 10 national standards, the first of which reads, ``Conservation

and management measures shall prevent overfishing while achieving, on a

continuing basis, the OY from each fishery for the United States

fishing industry.'' Councils are also charged by the Magnuson-Stevens

Act with rebuilding overfished fisheries. To meet these requirements,

the Council had to amend its process for setting OYs for managed

species to ensure that no OY would exceed the maximum sustainable yield

(MSY) for a particular stock. In accordance with the national standard

guidelines, OY would not exceed the acceptable biological catch (ABC)

(or the sum of ABCs for a complex) unless the Council demonstrates that

overfishing mixed stock exception criteria have been met.

[[Page 49095]]

This overfishing mixed stock exception is not a ``loophole,'' but an

implementation of a component of NMFS national standards guidelines, a

tool for implementing the Magnuson-Stevens Act's broad policy

requirements within the biological, ecological, and socio-economic

realities of our nation's fisheries. According to the guidelines at 50

CFR 600.310(d)(6):

Harvesting one species of a mixed-stock complex at its optimum

level may result in the overfishing of another stock component in

the complex. A Council may decide to permit this type of overfishing

only if all of the following conditions are satisfied: (i) It is

demonstrated by analysis that such action will result in long-term

net benefits to the Nation. (ii) It is demonstrated by analysis that

mitigating measures have been considered and that a similar level of

long-term net benefits cannot be achieved by modifying fleet

behavior, gear selection/configuration, or other technical

characteristic in a manner such that no overfishing would occur.

(iii) The resulting rate or level of fishing mortality will not

cause any species or evolutionarily significant unit thereof to

require protection under the ESA.

This careful language is clearly not a loophole, but rather, an

acknowledgment that marine ecosystems support a wide variety of

different fish species, and that fishing gear is often not selective

enough to distinguish between species of healthy stock status and

species of troubled stock status.

Amendment 11 calls for numerical OYs for individual species and

species groups, and clarifies that the Council will decide on a case-

by-case basis whether to establish OYs for individual species and

species groups. A non-numerical OY may be retained for some species.

For the Council to ensure that its OY recommendations do not exceed

MSYs for managed species, it must know the MSYs of those species.

Groundfish stock assessment processes are ongoing and primarily focus

on the more heavily-targeted species, so for many managed species,

there is no known species-specific MSY. Therefore, the Council

recommended setting an ``MSY control rule'' for managed species that

allows a conservative rate of fishing on those species for which there

is no numerical MSY based on stock assessments. The MSY control rule

for Pacific coast groundfish is a constant fishing mortality rate that

serves as a limit. The default rate is F40% for rockfish and

F35% for other species, both of which may be superseded

based on better scientific information. ABC is defined as the

appropriate F times the current biomass estimate. The default

overfished/rebuilding threshold is 25 percent of Bunfished.

For stocks with biomass smaller than the MSY biomass, OY will be

adjusted to be more conservative than ABC. Between Bmsy and

B10%, OY will be adjusted to be increasingly more

conservative at lower biomass levels. A stock that is at or below

B10% will have a zero OY. This conservative guideline would

serve as a default interim rebuilding adjustment to OY for stocks below

their overfished/rebuilding threshold, and would be in effect until a

formal rebuilding plan is developed for those stocks. Once the

Secretary of Commerce (Secretary) has identified a stock as overfished,

the Council has 1 year to develop a rebuilding plan. Based on the

definition of ``overfished'' in Amendment 11, NMFS notified the Council

on March 3, 1999, that Pacific ocean perch, lingcod, and bocaccio were

considered overfished. The Council has already begun work on rebuilding

plans for these stocks.

The Council may set the harvest level for a stock higher than the

default control rule, but not higher than the MSY harvest rate, as long

as the higher harvest rate is not inconsistent with rebuilding the

stock to Bmsy. Commenters on this issue also identified this

exception to the default control rule as a ``loophole.'' Like the

mixed-stock exception for overfishing, this exception provides the

Council flexibility in dealing with the challenges of managing a mixed-

stock complex while meeting the requirement to rebuild overfished

stocks. Under this exception, an overfished stock within a mixed-stock

complex could be harvested at a rate above the default control rate,

but below MSY. Even management measures that keep harvest rates on an

overfished stock to the lowest possible incidental interception rates

may fall within that range between the default control rate and MSY.

Comments on Bycatch

Comment 2: The bycatch provision is not adequate and needs to be

strengthened by including such provisions as: (1) Adopting a mandatory

west coast observer program; (2) for some species, adopting an

alternative to the year-round fishery and to the use of trip limits--

management tools that have been shown to result in increased discards;

(3) establishing bycatch caps based on harvest guidelines; (4) allowing

stackable permits; and (5) creating incentives for clean fishing by

developing ``harvest priorities'' with options such as extra

allocations for fishers with lower bycatch rates.

Response: NMFS agrees that the bycatch provisions in Amendment 11

are not adequate and has disapproved those provisions. Amendment 11,

including the supporting analysis, neither assesses current bycatch

rates, nor recommends management measures for reducing bycatch rates or

gathering bycatch data. NMFS recognizes that the FMP is a framework FMP

that sets the standards and procedures that govern the Council's

actions. However, NMFS believes that the Amendment 11 framework

objective for bycatch reduction by itself neither assesses bycatch in

the groundfish fishery under current management measures nor addresses

what steps the Council intends to take to assess and then reduce

bycatch rates in the future.

NMFS recognizes that the Council has been exploring several

alternatives to its current groundfish management system in order to

address the waste issues in the groundfish fishery. There is no

``silver bullet'' that will solve all of the different problems in the

fishery. Several different advisory committees have been formed to

develop a suite of solutions to address the many challenges in

groundfish management. At its April 1999 meeting, the Council proposed

development of an observer program for Pacific Coast groundfish

fisheries and appointed an Implementation Committee to design a

statistically valid observer program. The Council's Total Catch

Determination Committee has concluded that, in addition to an observer

program, the fleet should move to enhanced logbook reporting. The

Council is also convening a series of legal gear committees, with one

committee for each gear group or fishing sector, that will address gear

performance standards to reduce bycatch and to minimize gear impacts on

EFH. Reducing overall fleet participation and capacity is being

considered through development of programs for permit stacking and

permit buyback. Many of the new ideas being explored by the Council

would require a fundamental shift in how Pacific groundfish fisheries

operate. NMFS will be working with the Council to develop new bycatch

provisions through an FMP amendment, to implement management measures

to minimize bycatch and discard mortality to the extent practicable,

and to implement a data gathering system for bycatch.

Comments on EFH

Comment 3: By the terms of the SFA, EFH authorization is limited to

``the description and identification of essential fish habitat in

fishery management plans.'' 16 U.S.C. 1855(b)(1)(A). This limitation

makes it clear that NMFS and the Council authority applies only to

``fisheries''.

[[Page 49096]]

There is no basis in the Magnuson-Stevens Act for the Councils to

address, through plans, nonfishing activities or habitat outside of the

Exclusive Economic Zone (EEZ) regulatory jurisdiction of the Council.

Response: NMFS disagrees with the commenter's interpretation of the

Magnuson-Stevens Act. ``Essential Fish Habitat'' is defined at 16

U.S.C. 1802(3)(10) as ``those waters and substrate necessary to fish

for spawning, breeding, feeding or growth to maturity.'' The Magnuson-

Stevens Act requires at section 16 U.S.C. 1855(b)(1)(A) that NMFS

``establish by regulation guidelines to assist the Councils in the

description and identification of EFH in the fishery management plans

(including adverse impacts on such habitat) and in the consideration of

actions to ensure the conservation and enhancement of such habitat.''

The Council must also identify other actions to conserve EFH, which

includes minimizing to the extent practicable adverse effects on EFH

caused by fishing. Finally, the statute requires that every Federal

agency consult with the Secretary of Commerce on any action (fishing or

non-fishing) authorized, funded or undertaken by that agency that may

adversely affect EFH. See 16 U.S.C. 1855(b)(3) and 16 U.S.C.

1953(a)(7). The statute and plan amendment make a clear distinction

between what NMFS regulates, with Council input, under the plan

(fishing that affects EFH) and what the Council and NMFS discuss and

provide comments on (other activities that affect EFH). Amendment 11

does not take any regulatory action or require any regulations

concerning non-fishing activities.

Comment 4: The EFH designations include ``all waters from the mean

higher high water line, or the upriver extent of saltwater intrusions

into river mouths, along the coasts of Washington, Oregon, and

California seaward to the boundary of the U.S. Exclusive Economic Zone

(EEZ).'' This area is too broad to be effectively managed as EFH. This

limitless approach to identifying EFH is unlawful. It renders

meaningless the terms ``essential'' and ``necessary'' as used in the

Magnuson-Stevens Act, and otherwise clearly exceeds Congressional

intent. If Congress had intended for EFH to include all waters in the

general distribution of a species, it could have and would have done

so. The proposed definition is too broad in that it unnecessarily

identifies the entire geographic ranges of the managed species.

Response: The Magnuson-Stevens Act defines ``essential fish

habitat'' as ``those waters and substrate necessary to fish for

spawning, breeding, feeding or growth to maturity'' 16 U.S.C. 1802

(3)(10). When Congress amended the Magnuson-Stevens Act with the SFA,

it did not limit how the phrase ``those waters and substrate necessary

to fish for spawning breeding, feeding or growth to maturity'' would

apply to the different FMPs in different portions of the U.S. coast. As

with the Magnuson-Stevens Act national standards, NMFS had to create a

tool to implement these broad policy requirements within the realities

of current scientific knowledge about managed fish stocks and their

habitats. To address the difficult problem of describing EFH, NMFS

issued an interim final rule to implement the EFH provisions of the

Magnuson-Stevens Act (62 FR 66531, December 19, 1997; 50 CFR Part 600,

Subparts J and K.)

This rule describes an approach for designating EFH under current

information conditions and an ultimate goal for information about

managed species EFH. Four levels of information range from (1)

``Presence/absence distribution data are available for some or all

portions of the geographic range of the species,'' to (4) ``Production

rates by habitat (for particular species) are available.'' 62 FR

Sec. 6552; 50 CFR Sec. 600.815 (a)(2)(B). Under the Pacific Coast

Groundfish FMP, the Council had to describe EFH for 82 different

groundfish species, at life history stages ranging from eggs/

parturition to adulthood and spawning adulthood. Over 400 EFH

identifications were required to provide habitat descriptions for all

life stages of all managed species. For most life stages of most

species, only very basic presence/absence information was available.

For some species, Level 2 information, ``Habitat-related densities of

the species are available'' existed for adult life stages. However,

identifying adult life stage EFHs for those species/stages for which

there existed Level 2 information did not tend to diminish either the

EFH of individual species over their entire life history or the entire

EFH under the FMP. NMFS agrees that the Pacific Coast Groundfish FMP

EFH is large. However, NMFS believes that the identified EFH is no

larger than is supported by current scientific evidence. NMFS and the

Council plan to continue research on Pacific Coast groundfish habitat

with the aim of achieving the highest possible levels of information

for all life stages of all managed species. NMFS cautions the public

that while higher information levels will likely result in smaller

specific EFHs for each life stage of each managed species, the

cumulative size and shape of the 400+ EFH definitions might not be

significantly smaller than the current EFH description.

Comment 5: The highest level information available must be used in

EFH designations. It appears that the EFH portion of Amendment 11 gives

higher credence to Level 1 information than to Level 2 information.

Because the Council dismissed Level 2 information, it does not appear

that NMFS and the Council have used the best scientific information

available in designating EFH. Furthermore, the EFH portion of Amendment

11 should include a schedule and research plan to fill identified data

gaps. The research plan should demonstrate that it will lead to the

development of higher level EFH information.

Response: NMFS believes that the Council did not dismiss Level 2

information. On the contrary, EFH descriptions for individual species

and life stages provide summaries of the highest level of information

available for each species' life stages. NMFS agrees with commenters on

the importance of research to provide higher levels of information for

all species at all life stages. NMFS expects to continue to conduct

research on groundfish habitat, and to keep abreast of similar research

being conducted by other Federal agencies, states and tribes, academia,

and private organizations. Because information is limited or lacking

for many species and/or life stages, further research cannot help but

lead to the development of higher level EFH information. Amendment 11

provides research recommendations for further efforts to provide higher

and more detailed information on groundfish EFH, as required by 50 CFR

600.815(a)(10). In addition, groundfish EFH research priorities have

been adopted into the Council's biennial ``Research and Data Needs for

1998-2000,'' which summarizes the Council's scientific research needs

for all fisheries under the Council's authority.

Comment 6: Amendment 11 includes a limited number of broadly

defined ``composite EFHs'' to address the complexity of dealing with

numerous individual species and unique life stages. We are concerned

that this approach will require consultation on the effects of our

activities on species that either do not occur off of our portion of

the Pacific Coast, or which are rarely or anomalously observed in our

waters. It is clear that not all of the non-fishing activities

described will potentially impact all groundfish species.

[[Page 49097]]

Response: NMFS agrees that not all of the non-fishing activities

described in the EFH portion of Amendment 11 will affect all groundfish

species. The approach of using ``composite EFHs'' is designed to make

the consultation process more simple, not more complex. If a particular

activity is known to adversely affect only the marine component of the

estuarine composite, for example, consultation would be limited to EFH

for those species and life stages associated with the estuarine

composite in the geographic area of the activity considered.

Comment 7: EFH designations must be updated through FMP amendments,

rather than through an administrative process, so that updates of EFH

designations include an opportunity for public review and comment.

Response: NMFS disagrees with this comment, for the reasons stated

earlier in the discussion on frameworking. Amendment 11 sets the

process of updating EFH designations within a framework that allows the

Council to include new information more frequently than would be

possible if EFH designations were updated through FMP amendments. All

discussions by the Council and its advisory bodies concerning EFH will

be open to the public, and any decisions made on updating EFH

designation will be made only after public comment has been considered.

The Council publicly announces all of its meetings, and makes

particular effort to keep a wide range of constituents informed of its

activities, and of the activities of its advisory bodies.

Comment 8: Effects of non-fishing activities on marine waters are

already well regulated at the present time under a wide range of state

and Federal programs. No adequate scientific or other justification is

presented in the amendment or in supporting materials for adoption of

general prescriptive measures against non-fishing activities that may

affect EFH. Overgeneralized conclusions about the effects of non-

fishing activities on EFH unnecessarily encumber NMFS and the Councils,

as well as other Federal and state agencies and a huge number of

nonfishing sector enterprises and communities with an overly complex

consultation and coordination process. The measures suggested are

likely to be redundant or in conflict with measures being pursued under

other regulatory programs. Therefore, these suggested conservation and

management measures are not in compliance with the Magnuson-Stevens Act

national standards, which state that conservation and management

measures be based on the best available scientific information, and

that such measures shall, where practicable, minimize costs and avoid

unnecessary duplication.

Response: The interim final rule (62 FR 66531, December 19, 1997;

50 CFR Part 600, Subparts J and K) discussed earlier, in the response

to Comment 4, requires that FMPs ``identify activities that have the

potential to adversely affect EFH quantity or quality, or both.'' 50

CFR Section 600.815(a)(5). FMPs also must ``describe options to avoid,

minimize, or compensate for the adverse effects identified pursuant to

(fishing and non-fishing activities).'' 50 CFR Section 600.815(a)(7).

The Council does not have regulatory authority over non-fishing

activities affecting groundfish EFH. The FMP does not impose management

measures on non-fishing interests. It provides the information called

for in the statute and regulations, so that it can be used by the

public and in the consultation process established in the statute.

The Magnuson-Stevens Act requires all Federal agencies whose

activities may adversely affect EFH to consult with NMFS (16 U.S.C.

1855(b)(2)). According to 16 U.S.C. 1855(b)(4), NMFS is required to

provide EFH conservation and enhancement recommendations to Federal and

state agencies for actions that adversely affect EFH. State agencies

and private parties are not required to consult directly with NMFS on

their activities with EFH. However, if their activities are authorized,

funded or undertaken by a Federal agency, then that Federal agency must

consult with NMFS.

The EFH consultation requirements of the Magnuson-Stevens Act will

be implemented, to the extent possible, through existing framework of

established habitat conservation policies. EFH consultations will be

combined with existing interagency consultations and environmental

review procedures that may be required under other such statutes as the

Endangered Species Act (ESA), Clean Water Act, the National

Environmental Policy Act (NEPA), the Fish and Wildlife Coordination

Act, the Federal Power Act, and the Rivers and Harbor Act. Combining

habitat consultations for multiple laws minimizes possible conflicts

between and redundancy in meeting the implementation requirements of

those laws. Wherever possible, NMFS will also combine EFH consultations

for multiple different projects in order to reduce the regulatory

burden of consultation.

Comment 9: Potential effects of municipal wastewater discharge were

too general, and, thus, not accurately described in Amendment 11.

Furthermore, conservation measures suggested for wastewater discharge,

such as ``improved treatment of sewage,'' are unnecessary and

unfeasible, and therefore inappropriate for inclusion in the EFH

portion of Amendment 11.

Response: NMFS recognizes that wastewater discharge and water

quality standards are already regulated through laws other than the

Magnuson-Stevens Act, and that those laws require implementation of a

variety of conservation measures. However, as stated in the response to

Comment 8, Magnuson-Stevens Act amendments to FMPs must identify

activities that may adversely affect EFH quantity or quality, and must

further describe options to avoid, minimize, or compensate for those

effects. The feasibility of implementing particular conservation

measures to avoid, minimize, or compensate for the effects of non-

fishing activities on EFH will vary in different areas of the Pacific

Coast, depending on the regulatory requirements currently in place for

those areas.

Comment 10: The EFH provision is not complete. It does not include

any specific measures to reduce the impacts of fishing on EFH. The EFH

section lacks the following required elements: (1) identification of

habitat areas of particular concern (HAPCs) to help guide the

application of habitat protection measures; and (2) adoption of

specific and identifiable conservation and management measures to

protect habitat from the impacts of harmful fishing practices, such as

restrictions on gear or fishing practices, time or area closures, and

no-take reserves to preserve habitat or provide base-line information.

Response: Identifying HAPCs is not a required element in

implementing the EFH provisions of the Magnuson-Stevens Act. The NMFS

interim final rule (62 FR 66531, December 18, 1997; 50 CFR Part 600

subparts J and K) states at Sec. 600.815(a)(9), in part, ``FMPs should

identify HAPCs within EFH.'' Identifying HAPCs is NMFS' highest habitat

research priority for Pacific Coast groundfish. NMFS anticipates that

the Council will incorporate HAPCs into its EFH designations as soon as

adequate information is available. Identifying HAPCs should also

strengthen EFH description information for several key species managed

by the FMP.

In addition to projects that identify HAPCs, NMFS has been working

to incorporate EFH information into geographic information system

databases, to better map habitats used by Pacific Coast groundfish.

NMFS is

[[Page 49098]]

also focusing Pacific Coast research on the effects of fishing gear on

EFH, and on the habitat needs of different rockfish species

assemblages. The NMFS Southwest Fisheries Science Center has been

studying whether there are particular rockfish habitats that are

already inaccessible to fishing gear, and if so, whether those areas

could be used as unaltered habitat baselines for research into the

effects of fishing gear on rockfish habitat. Additionally, NMFS is

working in partnership with its sister agency, the National Ocean

Service, which manages U.S. National Marine Sanctuaries, to conduct

habitat surveys of the ocean floor through the use of human-operated

and remotely-operated submersible vehicles. All of these efforts, in

combination with the research work of other public agencies, academic

and private institutions, should greatly improve the level of

information available on groundfish EFH. The Magnuson-Stevens Act

provisions on EFH have created the impetus to move these projects

forward.

At 16 U.S.C. 1853(a)(7), the Magnuson-Stevens Act requires that

FMPs include practicable measures that minimize to the extent

practicable the adverse effects of fishing on EFH. Amendment 11

includes a consideration of how the effects of fishing activities on

EFH could be minimized and provides a framework for the Council to

implement future management measures to protect EFH. Through this

framework, the Council has already begun investigations into measures

that would reduce the effects of fishing gear on EFH, including time

and area closures to protect overfished species' habitat, gear

alterations to minimize bycatch and habitat damage, and no-take marine

reserves. Amendment 11 also describes the dearth of information on the

interaction between groundfish fishing gear and Pacific coast

groundfish habitat. There is a great deal of uncertainty about the

effects of fishing gear on EFH. NMFS and other agencies are working on

defining those effects so that the Council may properly evaluate what

management measures may be practicable and effective in protecting EFH.

NMFS and the Council consider Amendment 11 to be a first step in the

development of practicable management measures that minimize the

effects of fishing gear on EFH. NMFS will be working with the Council

and encouraging swift progress in this area.

Comment 11: The EFH section does not adequately conduct an

assessment of the potential adverse effects of all fishing equipment

types used in waters described as EFH. The amendment cites lack of

information on the effects of fishing gears on the habitat of Pacific

Coast groundfish; however, we question why research from Georges Bank

that shows that fishing gear that scrapes the bottom and has

detrimental effects on benthic habitats would not be applicable to

Pacific Coast groundfish habitat.

Response: The EFH portion of Amendment 11 does contain an

assessment of potential adverse impacts of all fishing equipment types

used in waters managed by the FMP. While describing these potential

adverse effects based on information from other parts of the world,

this assessment also discusses the dearth of information specific to

Pacific Coast groundfish habitat. Georges Bank, a shallow plain on the

continental shelf off eastern New England, is a different type of

habitat from the rocky, high-relief habitat off the Pacific coast.

Fishing strategies and gears used in Georges Bank are also quite

different from fishing strategies off the Pacific coast. For example,

there are no vessels using dredge gear in the Pacific Coast EEZ, and

there are far fewer bottom trawlers operating off the Pacific coast

than off the New England coast. As stated in the response to Comment

10, fishing effects on Pacific Coast groundfish EFH is a NMFS EFH

research priority, and the Council has initiated an effort through its

legal gear committee to begin considering changes to fishing gear to

protect sensitive EFH.

Comment 12: The Council has neglected to evaluate the loss of prey

species as an adverse effect on EFH and on a managed species. An

evaluation of adverse effects from fishing activities must investigate

whether and to what extent loss of prey from direct or indirect (i.e.,

bycatch) fishing activities is adversely affecting the feeding EFH of

managed species.

Response: An evaluation of prey species stock status is not

required for implementing the EFH provisions of the Magnuson-Stevens

Act. The NMFS interim final rule (62 FR 66531, December 18, 1997)

states at Sec. 600.815(a)(8), in part, ``FMPs should identify the major

prey species for the species in the FMU and generally describe the

location of prey species' habitat.'' Given the time constraints of

meeting the October 1998 Magnuson-Stevens Act deadline for amendment

approval, and the fact that there are 82 groundfish species in the

Pacific Coast Groundfish FMP's fishery management unit, the Council

chose to focus its efforts on required EFH elements. A description of

EFH for 82 different groundfish species necessarily includes a great

deal of marine habitat that is used both by managed species and by the

prey of managed species.

Comment 13: Finalizing EFH amendments to the Pacific Coast

Groundfish FMP can await revision of the NMFS interim final regulations

and guidelines, which is being vigorously pursued. Amending FMPs in

advance of that reform will require redoing the process later, and is

likely to lead only to further disagreement and confusion in the

meantime.

Response: Section 108(b) of the SFA required that regional fishery

management councils submit FMP amendments to the Secretary implementing

the SFA amendments to the Magnuson-Stevens Act by October 11, 1998. If

the NMFS interim final regulations on implementing EFH are revised in

the future, FMPs will reflect those changes as necessary. Additionally,

the interim final rule recommends at Sec. 600.815(11) that the Councils

conduct a complete review of the EFH provisions of their FMPs at least

once every 5 years.

Comments on the Environmental Assessment (EA)

Comment 14: The EA does not adequately evaluate previous relevant

actions (such as NMFS having approved excessively high total allowable

catches in past years); future relevant actions; and other direct,

indirect, and cumulative ecological and economic effects of the

selected recommendations in Amendment 11. The EA does not proceed from

an appropriate baseline of information--a healthy ecosystem and a

healthy fishery, one that has not been so overexploited as to have

caused stocks to be overfished or to be approaching an overfished

condition.

Response: The Amendment 11 EA did consider the Council's previous

relevant actions, proposed future relevant actions, and the effects of

actions recommended by Amendment 11, while also discussing the benefits

and/or detractions of taking those actions. The current evaluations of

past actions are what have shown us that harvest levels on some species

have been unsustainably high. The Council's management actions are

always based on the most recent available information, including

information about and assessments of previous relevant management

actions, particularly past harvest rates. Not all future relevant

actions can be predicted, but Council decisions do take account of

their future expected activities.

Comment 15: The Amendment 11 EA is inadequate as a National

Environmental Policy Act document. It does not contain an adequate

range of

[[Page 49099]]

alternatives for designating EFH. We found neither a discussion of

environmental impacts that might result from the amendment's EFH

provisions, nor a Regulatory Impact Review (RIR) analysis.

Socioeconomic impacts on non-fishing entities and communities are

otherwise ignored, with the erroneous assertion that the action

proposed is simply to describe and identify EFH for FMP species, which,

in and of itself, will have no economic impact. An Environmental Impact

Statement (EIS) must be prepared to address the potentially huge

effects on the human environment of the pervasive and cumbersome EFH

program reflected in the proposed amendment.

Response: NMFS disagrees. Operating under Magnuson-Stevens Act

requirements to identify EFH and to describe fishing and non-fishing

activities that may affect EFH, the Council considered the sum of the

available information on groundfish habitat. The Council did not have

the option of waiting to designate EFH until the scientific community

builds a thorough database for all of the species managed under the

groundfish FMP. As explained in the response to Comment 8, the Council

does not have regulatory authority over non-fishing activities

affecting groundfish EFH. Also explained in the response to Comment 8,

any consultation activities resulting from the designation of Pacific

Coast groundfish EFH will be conducted between NMFS and other Federal

or state agencies, not between NMFS and private entities. The RIR in

Amendment 11 focuses on fishery regulatory activity because the Council

addresses fishing activities in the Pacific Coast EEZ.

Amendment 11 Provisions to Provide Fish as Compensation for

Participation in Resource Surveys

The Magnuson-Stevens Act authorizes the Secretary to use the

private sector to provide vessels, equipment, and services necessary to

survey fishery resources and to pay for these surveys through the sale

of fish taken during the survey or, if the quality or amount of fish is

not adequate, on a subsequent commercial fishing trip (see

Sec. 402(e)). Section 303(b)(11) of the Magnuson-Stevens Act further

enables the Secretary to ``reserve a portion of the allowable

biological catch of the fishery for use in scientific research.''

The fishing industry, environmental groups, and NMFS have actively

explored various ways to expand and improve information used to manage

the groundfish fishery and to involve the fishing industry in gathering

that information. Amendment 11 includes a provision to allow NMFS to

use fish as compensation for fishers who participate in resource

surveys. The preamble to the proposed rule to implement this provision

(February 10, 1999, 64 FR 6597) provided a complete discussion of how

owners of chartered vessels could be compensated for participation in

resource surveys, of how commercial fishing vessel operations could be

compensated for collecting resource information, of competitive bid

solicitation, of scientific protocols for sample retention, of the

issuance process for compensation exempted fishing permits, and of how

compensation fish will be accounted for in the Council's annual process

of setting ABCs and OYs. During the public comment period on this

action, NMFS did not receive any comments addressing this portion of

the proposed rule. There are no changes from the proposed rule to the

regulatory text on compensation fishing.

Regulatory Definitions of Amendment 11 Terms, Comment and Response,

Change from the Proposed Rule

Amendment 11 modified the FMP definitions of several terms,

including terms used in groundfish regulations. In the proposed rule to

implement Amendment 11, NMFS proposed amending the regulatory

definitions of the terms ``specification,'' and ``processing or to

process'' to make those definitions consistent with the new Amendment

11 definitions, and proposed adding a definition for ``optimum yield.''

NMFS received one public comment on the proposed rule to implement

Amendment 11. The commenter asked that NMFS include the Amendment 11

definition of ``processor'' in the codified regulations. NMFS had not

proposed including the definition of ``processor'' in the regulations

because the current regulations do not directly regulate processor

activities. However, including it in the regulations alerts the

affected public, and provides notice to the persons who are newly

defined as processors to pay attention to future Council actions that

may affect them. Including this definition in the groundfish

regulations will not alter the effect or enforcement of current Federal

groundfish regulations. The definition of ``processor'' in Amendment 11

is, ``Processor means a person, vessel, or facility that (1) engages in

processing; or (2) receives live groundfish directly from a fishing

vessel for retail sale without further processing.'' This definition is

necessary to clarify that a person, vessel or facility that receives

live fish directly from a fishing vessel for sale without further

processing is considered a processor. This differs from previous use of

the term, which was ambiguous with respect to the receipt and

subsequent sale of live fish. Including this definition in the codified

groundfish regulations does not alter the effect or enforcement of

current Federal groundfish regulations.

Classification

The Administrator, Northwest Region, NMFS, determined that

Amendment 11 is necessary for the conservation and management of the

Pacific Coast groundfish fishery and that it is consistent with the

Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration when this rule was proposed, that

this rule, if adopted as proposed, would not have a significant

economic impact on a substantial number of small entities. No comments

were received regarding this certification. As a result, a regulatory

flexibility analysis was not prepared.

This rule contains collection-of-information requirements subject

to the Paperwork Reduction Act (PRA) that have been approved by OMB,

under OMB Control Number 0648-0203 for Federal fishing permits.

Notwithstanding any other provision of law, no person is required to

respond to, nor shall any person be subject to a penalty for failure to

comply with, a collection of information subject to the requirements of

the PRA unless that collection of information displays a currently

valid OMB control number. The public reporting burden for applications

for exempted fishery permits. The public reporting burden for

applications for exempted fishery permits is estimated at 1 hour per

response; the burden for reporting by exempted fishing permittees is

estimated at 30 minutes per response. These estimates include the time

for reviewing instructions, searching existing data sources, gathering

and maintaining the data needed, and completing and revising the

collection of information. Send comments regarding this burden estimate

or any other aspect of the data collection, including suggestions for

reducing the burden, to NMFS (see ADDRESSES) and to OMB, Washington,

D.C. 20503 (ATTN: NOAA Desk Officer).

NMFS issued Biological Opinions (BOs) under the ESA on August 10,

1990, November 26, 1991, August 28,

[[Page 49100]]

1992, September 27, 1993, and May 14, 1996, pertaining to the impacts

of the groundfish fishery on Snake River spring/summer chinook, Snake

River fall chinook, Sacramento River winter chinook, and on Snake River

sockeye. The BOs concluded that implementation of the FMP for the

Pacific Coast Groundfish fishery is not expected to jeopardize the

continued existence of any endangered or threatened species under the

jurisdiction of NMFS, or result in the destruction or adverse

modification of critical habitat. This rule is within the scope of

these consultations. Because the impacts of this action fall within the

scope of the impacts considered in these BOs, additional consultations

on these species are not required for this action. Since the last BO,

additional species have been listed under the ESA, including: coho

salmon as threatened (Oregon coast/southern Oregon-northern California/

central California); chinook salmon as threatened (Puget Sound/lower

Columbia River/upper Willamette River) and endangered (upper Columbia

River); chum salmon as threatened (Hood Canal/Columbia River); sockeye

salmon as threatened (Ozette Lake); steelhead as threatened (middle and

lower Columbia River/Snake River Basin/upper Willamette River/central

California/south-central California) and endangered (upper Columbia

River/southern California); and, Umpqua River cutthroat trout as

endangered.

NMFS has reinitiated consultation under Section 7 of the ESA on the

Pacific Coast Groundfish fishery to consider its effect on newly listed

species. Review of the available information indicates that these

fisheries are not likely to affect listed coho, chum, sockeye,

steelhead, or cutthroat trout, as these species are rarely, if ever,

encountered in the groundfish fishery. Chinook salmon are caught

incidentally to some of the groundfish net fisheries, and those

fisheries may take chinook salmon from some of the newly listed runs.

However, all four of the newly listed chinook evolutionary significant

units are north or far-north migrating species, which greatly limits

the potential for take in the groundfish fisheries. NMFS has reviewed

the effects of groundfish management under the FMP on newly listed

Pacific salmon stocks and has determined that implementation of the

Amendment 11 final rule will not result in irretrievable or

irreversible commitments of resources that would have the effect of

foreclosing the formulation or implementation of any reasonable and

prudent alternative measures that may be developed and deemed necessary

for future implementation in the Pacific Coast groundfish fishery.

List of Subjects in 50 CFR Part 660

Administrative practice and procedure, American Samoa, Fisheries,

Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,

Reporting and recordkeeping requirements.

Dated: September 2, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN

PACIFIC

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

follows:

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

2. In Sec. 660.302, the definitions ``Optimum yield'' and

``Processor'' are added in alphabetical order, and the definitions of

``Commercial harvest guideline or commercial quota'', ``Processing or

to process'', and ``Specification'' are revised to read as follows:

Sec. 660.302 Definitions.

* * * * *

Commercial harvest guideline or commercial quota means the harvest

guideline or quota after subtracting any allocation for the Pacific

Coast treaty Indian tribes, for recreational fisheries, and for

compensation fishing under Sec. 660.350. Limited entry and open access

allocations are based on the commercial harvest guideline or quota.

* * * * *

Optimum yield (OY) means the amount of fish that will provide the

greatest overall benefit to the Nation, particularly with respect to

food production and recreational opportunities, and, taking into

account the protection of marine ecosystems, is prescribed as such on

the basis of the MSY from the fishery, as reduced by any relevant

economic, social, or ecological factor; and, in the case of an

overfished fishery, provides for rebuilding to a level consistent with

producing the MSY in such fishery. OY may be expressed numerically (as

a harvest guideline, quota, or other specification) or non-numerically.

* * * * *

Processing or to process means the preparation or packaging of

groundfish to render it suitable for human consumption, retail sale,

industrial uses or long-term storage, including, but not limited to,

cooking, canning, smoking, salting, drying, filleting, freezing, or

rendering into meal or oil, but does not mean heading and gutting

unless additional preparation is done.

Processor means person, vessel, or facility that engages in

processing; or receives live groundfish directly from a fishing vessel

for retail sale without further processing.

* * * * *

Specification is a numerical or descriptive designation of a

management objective, including but not limited to: ABC; optimum yield;

harvest guideline; quota; limited entry or open access allocation; a

set aside or allocation for a recreational or treaty Indian fishery; an

apportionment of the above to an area, gear, season, fishery, or other

subdivision; DAP, DAH, JVP, TALFF, or incidental bycatch allowances in

foreign or joint venture fisheries.

* * * * *

3. In Sec. 660.306, paragraphs (d), (e), and (f) are revised to

read as follows:

Sec. 660.306 Prohibitions.

* * * * *

(d) Fish for groundfish in violation of any terms or conditions

attached to an EFP under Sec. 600.745 of this chapter or Sec. 660.350.

(e) Fish for groundfish using gear not authorized under

Sec. 660.322 or in violation of any terms or conditions attached to an

EFP under Sec. 660.350 or part 600 of this chapter.

(f) Take and retain, possess, or land more groundfish than

specified under Sec. 660.321 and Sec. 660.323, or under an EFP issued

under Sec. 660.350 or part 600 of this chapter.

* * * * *

4. In Sec. 660.321, paragraph (b) is revised to read as follows:

Sec. 660.321 Specifications and management measures.

* * * * *

(b) Annual actions. The Pacific Coast Groundfish fishery is managed

on a calendar year basis. Even though specifications and management

measures are announced annually, they may apply for more than 1 year.

In general, management measures are designed to achieve, but not

exceed, the specifications, particularly optimum yields (harvest

guidelines and quotas), commercial harvest guidelines and quotas,

limited entry and open access allocations, or other approved fishery

allocations.

* * * * *

[[Page 49101]]

5. Section 660.350 is added to read as follows:

Sec. 660.350 Compensation with fish for collecting resource

information--exempted fishing permits off Washington, Oregon, and

California.

In addition to the reasons stated in Sec. 600.745(b)(1) of this

chapter, an EFP may be issued under this subpart G for the purpose of

compensating the owner or operator of a vessel for collecting resource

information according to a protocol approved by NMFS. NMFS may issue an

EFP allowing a vessel to retain fish as compensation in excess of trip

limits or to be exempt from other specified management measures for the

Pacific coast groundfish fishery.

(a) Compensation EFP for vessels under contract with NMFS to

conduct a resource survey. NMFS may issue an EFP to the owner or

operator of a vessel that conducted a resource survey according to a

contract with NMFS. A vessel's total compensation from all sources (in

terms of dollars or amount of fish, including fish from survey samples

or compensation fish) will be determined through normal Federal

procurement procedures. The compensation EFP will specify the maximum

amount or value of fish the vessel may take and retain after the

resource survey is completed.

(1) Competitive offers. NMFS may initiate a competitive

solicitation (request for proposals or RFP) to select vessels to

conduct resource surveys that use fish as full or partial compensation,

following normal Federal procurement procedures.

(2) Consultation and approval. At a Council meeting, NMFS will

consult with the Council and receive public comment on upcoming

resource surveys to be conducted if groundfish could be used as whole

or partial compensation. Generally, compensation fish would be similar

to surveyed species, but there may be reasons to provide payment with

healthier, more abundant, less restricted stocks, or more easily

targeted species. For example, NMFS may decline to pay a vessel with

species that are, or are expected to be, overfished, or that are

subject to overfishing, or that are unavoidably caught with species

that are overfished or subject to overfishing. NMFS may also consider

levels of discards, bycatch, and other factors. If the Council does not

approve providing whole or partial compensation for the conduct of a

survey, NMFS will not use fish, other than fish taken during the

scientific research, as compensation for that survey. For each

proposal, NMFS will present:

(i) The maximum number of vessels expected or needed to conduct the

survey,

(ii) An estimate of the species and amount of fish likely to be

needed as compensation,

(iii) When the survey and compensation fish would be taken, and

(iv) The year in which the compensation fish would be deducted from

the ABC before determining the optimum yield (harvest guideline or

quota).

(3) Issuance of the compensation EFP. Upon successful completion of

the survey, NMFS will issue a ``compensation EFP'' to the vessel if it

has not been fully compensated. The procedures in Sec. 600.745(b)(1)

through (b)(4) of this chapter do not apply to a compensation EFP

issued under this subpart for the Pacific coast groundfish fishery (50

CFR part 660, subpart G).

(4) Terms and conditions of the compensation EFP. Conditions for

disposition of bycatch or any excess catch, for reporting the value of

the amount landed, and other appropriate terms and conditions may be

specified in the EFP. Compensation fishing must occur during the period

specified in the EFP, but no later than the end of September of the

fishing year following the survey, and must be conducted according to

the terms and conditions of the EFP.

(5) Reporting the compensation catch. The compensation EFP may

require the vessel owner or operator to keep separate records of

compensation fishing and to submit them to NMFS within a specified

period of time after the compensation fishing is completed.

(6) Accounting for the compensation catch. As part of the annual

specifications process (Sec. 660.321), NMFS will advise the Council of

the amount of fish authorized to be retained under a compensation EFP,

which then will be deducted from the next year's ABCs before setting

the HGs or quotas. Fish authorized in an EFP too late in the year to be

deducted from the following year's ABC will be accounted for in the

next management cycle practicable.

(b) Compensation for commercial vessels collecting resource

information under a standard EFP. NMFS may issue an EFP to allow a

commercial fishing vessel to take and retain fish in excess of current

management limits for the purpose of collecting resource information

(Sec. 600.745(b) of this chapter). The EFP may include a compensation

clause that allows the participating vessel to be compensated with fish

for its efforts to collect resource information according to NMFS'

approved protocol. If compensation with fish is requested in an EFP

application, or proposed by NMFS, the following provisions apply in

addition to those at Sec. 600.745(b) of this chapter.

(1) Application. In addition to the requirements in Sec. 600.745(b)

of this chapter, application for an EFP with a compensation clause must

clearly state whether a vessel's participation is contingent upon

compensation with groundfish and, if so, the minimum amount (in metric

tons, round weight) and the species. As with other EFPs issued under

Sec. 600.745 of this chapter, the application may be submitted by any

individual, including a state fishery management agency or other

research institution.

(2) Denial. In addition to the reasons stated in

Sec. 600.745(b)(3)(iii) of this chapter, the application will be denied

if the requested compensation fishery, species, or amount is

unacceptable for reasons such as, but not limited to, the following:

NMFS concludes the value of the resource information is not

commensurate with the value of the compensation fish; the proposed

compensation involves species that are (or are expected to be)

overfished or subject to overfishing, fishing in times or areas where

fishing is otherwise prohibited or severely restricted, or fishing for

species that would involve unavoidable bycatch of species that are

overfished or subject to overfishing; or NMFS concludes the information

can reasonably be obtained at a less cost to the resource.

(3) Window period for other applications. If the RA or designee

agrees that compensation should be considered, and that more than a

minor amount would be used as compensation, then a window period will

be announced in the Federal Register during which additional

participants will have an opportunity to apply. This notification would

be made at the same time as announcement of receipt of the application

and request for comments required under Sec. 660.745(b). If there are

more qualified applicants than needed for a particular time and area,

NMFS will choose among the qualified vessels, either randomly, in order

of receipt of the completed application, or by other impartial

selection methods. If the permit applicant is a state, university, or

Federal entity other than NMFS, and NMFS approves the selection method,

the permit applicant may choose among the qualified vessels, either

randomly, in order of receipt of the vessel application, or by other

impartial selection methods.

[[Page 49102]]

(4) Terms and conditions. The EFP will specify the amounts that may

be taken as scientific samples and as compensation, the time period

during which the compensation fishing must occur, management measures

that NMFS will waive for a vessel fishing under the EFP, and other

terms and conditions appropriate to the fishery and the collection of

resource information. NMFS may require compensation fishing to occur on

the same trip that the resource information is collected.

(5) Accounting for the catch. Samples taken under this EFP, as well

as any compensation fish, count toward the current year's catch or

landings.

[FR Doc. 99-23486 Filed 9-9-99; 8:45 am]

BILLING CODE 3510-22-F