57874 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

The fee payable for a petition seeking a 

determination under paragraph (a)(2) of 

this section is $800. If the petitioner 

requests an inspection of a vehicle, the 

sum of $827 shall be added to such fee. 

No portion of this fee is refundable if 

the petition is withdrawn or denied.

* * * * *

■ 4. Section 594.8 is amended by 

revising paragraph (b) and by revising 

the first sentence of paragraph (c) to read 

as follows:

§ 594.8 Fee for importing a vehicle 

pursuant to a determination by the 

Administrator.

* * * * *

(b) If a determination has been made 

pursuant to a petition, the fee for each 

vehicle is $150. The direct and indirect 

costs that determine the fee are those set 

forth in § 594.7(b), (c), and (d). 

(c) If a determination has been made 

on or after October 1, 2004, pursuant to 

the Administrator’s initiative, the fee for 

each vehicle is $125. * * *

■ 5. Section 594.9 is amended by 

revising paragraph (c) to read as follows:

§ 594.9 Fee for reimbursement of bond 

processing costs.

* * * * *

(c) The bond processing fee for each 

vehicle imported on and after October 1, 

2004, for which a certificate of 

conformity is furnished, is $9.30.

■ 6. Section 594.10 is amended by 

revising paragraph (d) to read as follows:

§ 594.10 Fee for review and processing of 

conformity certificate.

* * * * *

(d) The review and processing fee for 

each certificate of conformity submitted 

on and after October 1, 2004 is $18. 

However, if the vehicle covered by the 

certificate has been entered 

electronically with the U.S. Department 

of Homeland Security through the 

Automated Broker Interface and the 

registered importer submitting the 

certificate has an e-mail address, the fee 

for the certificate is $6, provided that 

the fee is paid by a credit card issued 

to the registered importer. If NHTSA 

finds that the information in the entry 

or the certificate is incorrect, requiring 

further processing, the processing fee 

shall be $48.

Jeffrey W. Runge, 

Administrator.

[FR Doc. 04–21723 Filed 9–23–04; 3:56 pm] 

BILLING CODE 4910–59–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 660

[Docket No. 040618188–4265–02; I.D. 

061404A]

RIN 0648–AS26

Fisheries Off West Coast States and in 

the Western Pacific; Pacific Coast 

Groundfish Fishery; Amendment 16–3; 

Corrections

AGENCY: National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to 

implement Amendment 16–3 to the 

Pacific Coast Groundfish Fishery 

Management Plan (FMP). Amendment 

16–3 amended the FMP to include 

overfished species rebuilding plans for 

bocaccio, cowcod, widow rockfish, and 

yelloweye rockfish within the FMP. 

This final rule adds two rebuilding 

parameters to the Code of Federal 

Regulations (CFR) for each overfished 

stock, the target year for rebuilding and 

the harvest control rule. Amendment 

16–3 addressed the requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) to protect and 

rebuild overfished species managed 

under a Federal FMP. Amendment 16–

3 also responded to a Court order in 

which NMFS was ordered to provide 

Pacific Coast groundfish rebuilding 

plans as FMPs, FMP amendments, or 

regulations, per the Magnuson-Stevens 

Act. This rule also updates the list of 

rockfish species defined in the CFR to 

match those listed in the FMP and 

contains corrections to 50 CFR part 660, 

subpart G.

DATES: Effective October 28, 2004.

ADDRESSES: Copies of Amendment 16–

3 and the final environmental impact 

statement/regulatory impact review/

initial regulatory flexibility analysis 

(FEIS/RIR/IRFA) and the Record of 

Decision (ROD) are available from 

Donald McIsaac, Executive Director, 

Pacific Fishery Management Council 

(Council), 7700 NE Ambassador Place, 

Portland, OR 97220, phone: 503–820–

2280. These documents are also 

available online at the Council’s website 

at http://www.pcouncil.org.

FOR FURTHER INFORMATION CONTACT:

Jamie Goen (Northwest Region, NMFS), 

phone: 206–526–4646; fax: 206–526–

6736 or; e-mail: jamie.goen@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

The proposed and final rules for this 

action are 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

Amendment 16–3 revised the FMP to 

include overfished species rebuilding 

plans for bocaccio, cowcod, widow 

rockfish, and yelloweye rockfish. This 

final rule implements Amendment 16–

3 by adding two rebuilding parameters, 

the target year in which the stock would 

be rebuilt under the adopted rebuilding 

plan (TTARGET) and the harvest control 

rule, to the CFR at 50 CFR 660.365 for 

each overfished stock.

Amendment 16–3 addressed the 

requirements of the Magnuson-Stevens 

Act to protect and rebuild overfished 

species managed under a Federal FMP. 

Amendment 16–3 also responded to a 

Court order in Natural Resources 

Defense Council, Inc. v. Evans, 168 F. 

Supp. 2d 1149 (N.D. Cal 2001,), in 

which NMFS was ordered to provide 

Pacific Coast groundfish rebuilding 

plans as FMPs, FMP amendments, or 

regulations, per the Magnuson-Stevens 

Act.

A Notice of Availability for 

Amendment 16–3 was published on 

June 18, 2004 (69 FR 34116). NMFS 

requested comments on the amendment 

under the Magnuson-Stevens Act FMP 

amendment review provisions for a 60–

day comment period, ending August 17, 

2004. A proposed rule was published on 

July 7, 2004 (69 FR 40851), requesting 

public comment through August 17, 

2004. During the Amendment 16–3 and 

proposed rule comment period, NMFS 

received three letters of comment. These 

letters are addressed later in the 

preamble to this final rule. The 

preamble to the proposed rule for this 

action provides additional background 

information on the fishery and on this 

final rule. Further detail on Amendment 

16–3 also appears in the FEIS/RIR/IRFA 

for this action, which was prepared by 

the Council.

After consideration of the public 

comments received on the amendment, 

NMFS approved Amendment 16–3 on 

September 2004. As required by the 

standards established by Amendment 

16–1, the rebuilding plans adopted 

under Amendment 16–3 for bocaccio, 

cowcod, widow rockfish, and yelloweye 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57875

rockfish specified the following 

rebuilding parameters in the FMP: 

unfished biomass (B0) and target 

biomass (BMSY), the year the stock 

would be rebuilt in the absence of 

fishing (TMIN), the year the stock would 

be rebuilt if the maximum time period 

permissible under national standard 

guidelines were applied (TMAX), the 

target year in which the stock would be 

rebuilt under the adopted rebuilding 

plan (TTARGET), and the harvest control 

rule. Other information relevant to 

rebuilding was also included, including 

the probability of the stock attaining 

BMSY by TMAX (PMAX). The estimated 

rebuilding parameters will 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 and rebuilding 

analyses are completed, as is likely to 

happen.

Amendment 16–1 specified two 

rebuilding parameters, TTARGET and the 

harvest control rule for the rebuilding 

period, that are to be codified in Federal 

regulations for each individual species 

rebuilding plan. This final rule adds 

these rebuilding parameters to the CFR 

at 50 CFR 660.365 for bocaccio, cowcod, 

widow rockfish, and yelloweye rockfish. 

TTARGET is the year in which there is a 

50–percent likelihood that the stock will 

have been rebuilt with a given fishing 

mortality rate. The harvest control rule 

expresses a given fishing mortality rate 

that is to be used over the course of 

rebuilding. These parameters will be 

used to establish the optimum yields 

(OYs) for species with rebuilding plans. 

Conservation and management goals 

defined in the FMP require the Council 

and NMFS to manage to the appropriate 

OY for each species or species groups, 

including those OYs established for 

rebuilding overfished species. The OYs 

and management measures will be set 

on a biennial basis, and will address the 

fisheries as a whole. Regulations 

implemented through the harvest 

specifications and management 

measures are based on the most recently 

available scientific information and are 

intended to address all of the fisheries 

that take groundfish and to keep the 

total catch of groundfish, including 

overfished species, within their 

respective OYs. The FMP addresses how 

the fisheries as a whole are to be 

managed, whereas rebuilding plans are 

species-specific and define the 

parameters that govern the rebuilding of 

a particular species.

If, after a new stock assessment, the 

Council and NMFS conclude that either 

or both of the parameters defined in 

regulation should be revised, the 

revision will be implemented through 

the Federal notice-and-comment 

rulemaking process, and the updated 

values codified in the Federal 

regulations. NMFS believes that the 

FMP with the newly added rebuilding 

plans will be sufficient ‘‘to end 

overfishing in the fishery and to rebuild 

affected stocks of fish’’ (16 U.S.C. 

1854(e)(3)(A).

Comments and Responses

NMFS received three letters of 

comment on the proposed rule to 

implement Amendment 16–3: one letter 

was received from an environmental 

advocacy organization, and two letters 

were received from one member of the 

public. These comments are addressed 

here:

Comment 1: The proposed target dates 

for rebuilding Amendment 16–3 species 

are inconsistent with the MagnusonStevens Act because the rebuilding 

periods are longer than the statute 

allows.

Response: The specified rebuilding 

time periods for the four overfished 

species are consistent with the legal 

requirements of the Magnuson-Stevens 

Act and with the national standard 

guidelines. The Magnuson-Stevens Act 

states that rebuilding ‘‘shall not exceed 

10 years, except in cases where the 

biology of the stock of fish, or other 

environmental conditions,...dictate 

otherwise.’’ The Magnuson-Stevens Act 

also states that the time for rebuilding 

shall be as short as possible, taking into 

account certain factors. The MagnusonStevens Act, section 304 (e)(4)(A), and 

the national standard guidelines at 50 

CFR 600.310 (e)(4)(A) recognize the 

following factors that enter into the 

specification of a time period for 

rebuilding: the status and biology of the 

stock or stock complex; interactions 

between stocks or stock complexes and 

the marine ecosystem; the needs of 

fishing communities; recommendations 

of international organizations in which 

the U.S. is a participant, and; 

management measures under an 

international agreement in which the 

U.S. participates.

According to the national standard 

guidelines at 50 CFR 

600.310(e)(4)(ii)(B)(3), if the time period 

for rebuilding is 10 years or greater, then 

the specified time period for rebuilding 

(TTARGET) may be adjusted upward to 

the extent warranted by the needs of 

fishing communities and 

recommendations by international 

organizations in which the U.S. 

participates, except that no such 

upward adjustment can exceed the 

rebuilding period calculated in the 

absence of fishing mortality (TMIN), plus 

one mean generation time or equivalent 

period based on the species’ life-history 

characteristics (TMAX). All of the 

rebuilding periods for bocaccio, 

cowcod, widow rockfish, and yelloweye 

rockfish are less than TMAX.

The rebuilding probabilities (PMAX, 

which are estimated probabilities of 

rebuilding the stock by TMAX) range 

between 60 percent and 80 percent. This 

represents a better than 50 percent 

likelihood that each of these stocks will 

be rebuilt (reach the BMSY biomass) by 

TMAX, while allowing sufficient access 

to overfished stocks, so that healthy 

groundfish stocks that co-occur with 

overfished species can be harvested. 

The Council chose a TTARGET closer to 

TMAX for cowcod and widow rockfish 

(reflected in the relatively lower 60–

percent rebuilding probability). For 

cowcod, this was the most conservative 

alternative available under the current 

stock assessment. A new stock 

assessment is planned for cowcod in 

2005. For widow rockfish, the lower 

probability of rebuilding was chosen to 

allow some bycatch in all of the various 

fisheries that take widow rockfish 

incidentally, particularly fisheries for 

Pacific whiting. The FEIS for this 

amendment has further information on 

the reasons for the adopted rebuilding 

periods.

Comment 2: The proposed rebuilding 

periods should be consistent with 

NMFS’s ‘‘Technical Guidance On the 

Use of Precautionary Approaches to 

Implementing National Standard 1 of 

the Magnuson-Stevens Fishery 

Conservation and Management Act’’

(Technical Guidance), which 

recommends rebuilding periods not 

exceed the midpoint (TMID) between the 

minimum and maximum times to 

rebuild the species.

Response: As explained above in the 

response to comment 1, if TMIN is 10 

years or greater, the national standard 

guidelines at 50 CFR 

600.310(e)(4)(ii)(B)(3), allow TTARGET to 

be adjusted upward to the extent 

warranted by the needs of fishing 

communities and recommendations by 

international organizations in which the 

U.S. participates, except that no such 

upward adjustment can exceed TMAX. 

The Technical Guidance recommends 

that TTARGET be set no higher than the 

midpoint between TMIN and TMAX.

Adopting the midpoint as a binding 

criterion in all cases would not be 

consistent with the Magnuson-Stevens 

Act because it would not allow the 

factors in the Act at section 304(e)(4) 

and the national standard guidelines at 

50 CFR 600.310(e)(4)(ii), which include 

the needs of fishing communities, to be 

taken into account. The Technical 

Guidance is not a binding regulation 

57876 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

that must be followed; the Technical 

Guidance itself acknowledges that it 

deals only with biological issues, and 

not with socioeconomic issues, which 

fishery management councils must 

consider, per the Magnuson-Stevens 

Act.

The Council has not recommended for 

the Amendment 16–3 species any 

TTARGET values that exceed TMAX. For 

bocaccio, the Council recommended a 

TTARGET of 2023 which is lower than the 

TMID of 2025. The Council set TTARGET

dates to rebuild overfished species 

within the time allowed, yet recognizes 

the socio-economic importance of these 

species to the fishing industry and 

fishing communities. Each of the 

Amendment 16–3 species co-occurs 

with more abundant groundfish stocks. 

Rebuilding harvest levels allow some 

targeting of more abundant stocks that 

co-occur with Amendment 16–3 

species. The Council’s recommended 

rebuilding goals comply with the 

Magnuson-Stevens Act and the national 

standard guidelines.

Comment 3: NMFS’s Technical 

Guidance recommends that rebuilding 

plans have at least a 90–percent 

probability of achieving rebuilding 

within the maximum allowable time to 

rebuild (PMAX) under NMFS’s national 

standard guidelines. None of these 

rebuilding plans result in a 90–percent 

or greater likelihood of successfully 

rebuilding by PMAX.

Response: The Technical Guidance 

has been provided by NMFS ‘‘for those 

aspects of scientific fishery management 

advice that have biological 

underpinnings, such as the response of 

fish to exploitation. The drafting team 

recognizes that there are many other 

important aspects to managing fisheries, 

such as socioeconomic factors, which 

are key to defining optimum yield, and 

which Fishery Management Councils 

must consider.’’ As such, the Technical 

Guidance does not direct NMFS, but 

rather makes suggestions on how to use 

scientific information to implement the 

policy guidance of the MagnusonStevens Act and the national standard 

guidelines to achieve the biological 

goals of national standard 1.

The Technical Guidance at page 38 

suggests addressing uncertainty with the 

guideline that ‘‘rebuilding plans be 

designed to possess a 50–percent or 

higher chance of achieving BMSY within 

TTARGET years, and a 90–percent or 

higher chance of achieving BMSY 

within TMAX years.’’ Harvest levels 

finalized by this action have been set 

such that overfished species would have 

a 50–percent chance of achieving BMSY

within TTARGET years. However, none of 

harvest levels for the overfished species 

in Amendment 16–3 have been set such 

that their rebuilding plans would have 

a greater than 90–percent chance of 

achieving BMSY within TMAX years. Each 

species was considered individually in 

its species-specific rebuilding analysis.

As discussed in the preamble to the 

proposed rule for this action (69 FR 

40851, July 7, 2004), the rebuilding 

measures for the overfished West Coast 

groundfish species in Amendment 16–3 

have the following probabilities of 

achieving BMSY within TMAX years: 

bocaccio, 70 percent; cowcod, 60 

percent; widow rockfish, 60 percent; 

and yelloweye rockfish, 80 percent. 

These probabilities of rebuilding and 

the harvest levels associated with them 

were set to achieve rebuilding, but also 

to acknowledge that these species are 

usually taken with other, co-occurring 

and more abundant species. OY levels 

for overfished species are set to allow 

some level of fishing for the more 

abundant stocks that co-occur with 

overfished species. At the same time, 

management measures such as 

conservation areas and cumulative trip 

limits are set to minimize opportunities 

for the vessels targeting more abundant 

stocks to intercept overfished species. 

This approach to multi-species 

management is consistent with the 

Magnuson-Stevens Act and meets the 

criteria in the Act at section 304(e)(4) 

and the national standard guidelines at 

600.310(e)(4)(ii).

As discussed in the response to 

comment 1, according to the national 

standard guidelines at 50 CFR 

600.310(e)(4)(ii)(B)(3), if TMIN is 10 years 

or greater, ‘‘then the specified time 

period for rebuilding [TTARGET] may be 

adjusted upward to the extent warranted 

by the needs of fishing communities and 

recommendations by international 

organizations in which the United 

States participates, except that no such 

upward adjustment can exceed the 

rebuilding period calculated in the 

absence of fishing mortality, plus one 

mean generation time or equivalent 

period based on the species’ life-history 

characteristics [TMAX].’’ While the 

Technical Guidance suggests that 

rebuilding plans be designed to possess 

a 90–percent or higher chance of 

achieving BMSY within TMAX years 

(PMAX), adopting that as a binding 

criterion in all cases would not be 

consistent with the Magnuson-Stevens 

Act and the national standard 

guidelines. It would not be consistent 

with the Magnuson-Stevens Act because 

it would not allow the criteria in the Act 

at section 304(e)(4) and the national 

standard guidelines at 600.310(e)(4)(ii) 

to be taken into account. For further 

discussion on this issue, see the 

preamble to the Amendment 16–1 final 

rule (69 FR 8861, February 26, 2004.)

Comment 4: The target rebuilding 

periods proposed in the rebuilding 

plans all have only a 50–percent chance 

of actually being achieved under the 

plans. This low probability of rebuilding 

success by the rebuilding dates 

specified in the plans violates the 

Magnuson-Stevens Act’s requirement to 

rebuild as quickly as possible and 

conflicts with NMFS’s own guidance to 

adopt a precautionary approach to 

rebuilding and species protection. 

NMFS’s response to this comment in the 

FEIS ignores the fact that this is the 

result of policy choices that are neither 

scientifically mandated nor protective of 

the overfished species. A higher 

probability of rebuilding success, by 

both target and maximum periods, 

would be more precautionary and 

would accord much better with the 

statute and NMFS’s own guidance.

Response: As stated in the response to 

comments in the FEIS (Chapter 12), in 

a rebuilding analysis that uses the 

probability calculations described by 

the Council’s Scientific and Statistical 

Committee (SSC) Terms of Reference for 

Rebuilding Analyses, the target year is 

defined as the median rebuilding year 

for a given fishing mortality rate. As 

described in Section 4.5.2 of the 

groundfish FMP (and in more detail in 

Section 1.1.1.2 of Appendix A to the 

FEIS for this action), the rebuilding 

analysis methodology uses a Monte 

Carlo simulation technique in which 

many simulations project the change in 

biomass over time for a given fishing 

mortality rate (F), based on the 

biological characteristics of the species 

and known recruitment variability. The 

target year, or median year, is defined as 

the year in which half of these 

simulations show that the population 

has rebuilt to the target biomass. In this 

sense, the target year (TTARGET) is the 

statistically most likely year in which 

the population will achieve the target 

biomass for a given F. Similarly, PMAX, 

the probability of rebuilding in the 

maximum allowable time period 

(TMAX), represents the proportion of 

simulations within which the 

population has rebuilt to the target 

biomass by TMAX. Even TMIN, the 

rebuilding period in the absence of 

fishing, is defined probabilistically as 

the year in which half of all simulations 

achieve rebuilding when F is set to zero. 

These three strategic rebuilding 

parameters (TTARGET, PMAX, and F) 

cannot be chosen independently of each 

other because the choice of one 

parameter determines the value of the 

other two parameters. The alternatives 

in the FEIS are structured around PMAX

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57877

values. Therefore, in choosing a PMAX as 

part of the rebuilding strategy for an 

overfished stock, the Council also chose 

the values for TTARGET and F for each 

stock, with TTARGET being defined by 

the median probability of achieving 

rebuilding. Although the Council could 

have chosen the target year directly (as 

long as it fell between TMIN and TMAX), 

within the model it would still be 

defined as the year with 50–percent 

probability of stock recovery, and that 

choice would determine the 

corresponding values for PMAX and F.

As stated in the response to comment 

3, the Technical Guidance at page 38 

suggests addressing uncertainty with the 

guideline that ‘‘rebuilding plans be 

designed to possess a 50–percent or 

higher chance of achieving BMSY within 

TTARGET years, ...’’ Harvest levels 

finalized by this action have been set 

such that overfished species would have 

a 50–percent chance of achieving BMSY

within TTARGET years. Therefore, NMFS 

is following its guidance for setting 

TTARGET when considering uncertainty 

in stock dynamics, current stock status 

and recruitment variability. This 

approach is consistent with the 

Magnuson-Stevens Act and national 

standard guidelines on protecting and 

rebuilding overfished species while 

taking into account the socio-economic 

needs of the fishing industry and fishing 

communities.

Comment 5: Because the rebuilding 

plans lack any management 

requirements designed to achieve a 

rebuilt fishery, they violate the 

Magnuson-Stevens Act. To ensure 

rebuilding goals are met, rebuilding 

plans need to include management 

measures to (1) ensure rebuilding targets 

are met, (2) account for and reduce 

bycatch, (3) reduce impacts of current 

fishing on habitats that are important to 

the overfished stocks and their prey 

species, and (4) aid in the enforcement 

of the management measures.

Response: This comment poses two 

issues: first, the commenter states that 

rebuilding plans must include 

management measures to be adequate; 

second, the commenter provides a list of 

the types of management measures that 

the commenter believes are needed 

within a rebuilding plan. Amendments 

16–2 and 16–3 incorporated the 

overfished species rebuilding plans into 

the FMP. Rebuilding plans are no longer 

stand-alone documents. Rebuilding 

plans are species-specific and list the 

parameters that govern the rebuilding of 

a particular species. Most importantly, a 

rebuilding plan sets the harvest 

parameters for an overfished species. 

The primary management measure that 

is governed by and comes out of a 

rebuilding plan is the OY, which is 

implemented through the biennial 

specifications and management 

measures process.

In contrast to the species-specific 

rebuilding plans, the FMP sets policies 

and principles for the management of 

the groundfish fisheries as a whole. The 

FMP must guide the management of 

over 80 groundfish species, integrating 

rebuilding policies for overfished 

species, and harvest policies for species 

at precautionary harvest levels (B25%-

B40%) and more abundant stocks 

(>B40%.) The FMP provides this 

guidance in section 4.6.1.5., which 

states that ‘‘OY recommendations will 

be consistent with established 

rebuilding plans and achievement of 

their goals and objectives. . . . (b) In 

cases where a stock or stock complex is 

overfished, Council action will specify 

OY in a manner that complies with 

rebuilding plans developed in 

accordance with Section 4.5.2.’’ The 

FMP further states at 5.1.4 ‘‘For any 

stock the Secretary has declared 

overfished or approaching the 

overfished condition, or for any stock 

the Council determines is in need of 

rebuilding, the Council will implement 

such periodic management measures as 

are necessary to rebuild the stock by 

controlling harvest mortality, habitat 

impacts, or other effects of fishing 

activities that are subject to regulation 

under the biennial process. These 

management measures will be 

consistent with any approved rebuilding 

plan.’’ Most management measures used 

in the fishery to rebuild overfished 

stocks and to allow harvest on more 

abundant stocks are described in section 

6 of the FMP. The FMP, which includes 

rebuilding plans for the eight overfished 

groundfish species, is sufficient ‘‘to end 

overfishing in the fishery and to rebuild 

affected stocks of fish’’ (16 U.S.C. 

1854(e)(3)(A).

The 2004 specifications and 

management measures, (69 FR 11064, 

March 9, 2004) implemented the first 

four rebuilding plans (lingcod, canary 

rockfish, darkblotched rockfish, and 

Pacific ocean perch (POP)) with 

revisions to the harvest control rules for 

POP and darkblotched rockfish, and the 

interim rebuilding strategies for the 

remaining overfished species (bocaccio, 

cowcod, widow rockfish, and yelloweye 

rockfish). The proposed rule for 

groundfish harvest specifications and 

management measures for 2005–2006, to 

be published in September 2004, will 

propose OYs and management measures 

that implement the remaining 

rebuilding plans. The Council 

developed its recommendations for the 

2005–2006 fisheries based on and 

within the constraints of its FMP’s 

policies.

In addition to suggesting that the 

rebuilding plans are not adequate unless 

they contain management measures 

separate from those already provided in 

the FMP, the commenter listed several 

types of management measures that the 

commenter believes are needed within a 

rebuilding plan. Because the 

commenter’s letter on the Amendment 

16–3 proposed rule included more 

extensive comments on essential fish 

habitat (EFH) issues, NMFS will 

respond to those issues below in the 

responses to Comments 6–8. In addition 

to requesting that NMFS include 

measures to protect EFH within the 

rebuilding plans rather than within the 

FMP, the commenter suggested that 

NMFS include within the rebuilding 

plans measures to: limit fishing effort 

via capacity reduction, set time/area 

closures, set a network of no-take 

marine protected areas, set trip or bag 

limits, set caps on total mortality, adjust 

harvest levels in response to the 

fisheries exceeding OYs, gear 

modifications to reduce bycatch, 

implement an observer program, set 

Federal vessel licensing requirements, 

and implement enforcement devices 

and measures such as vessel monitoring 

systems.

As stated earlier in this response, 

overfished species rebuilding plans are 

not stand-alone documents and it is the 

FMP as a whole that will be used to 

rebuild overfished species. The FMP 

and Federal regulations implementing 

the FMP already include mechanisms to 

implement, or requirements for, most of 

the management measures mentioned 

by the commenter. Chapter 6 of the FMP 

sets management measures and 

regulatory programs the Council uses 

and intends to use to meet its varied 

fishery management responsibilities, 

including rebuilding overfished species. 

Section 6.1 describes a series of 

management measures that the Council 

uses to control fishing mortality, 

including but not limited to: permits, 

licenses and endorsements; restrictions 

on trawl mesh size; landing limits and 

trip frequency limits; quotas, including 

individual transferable quotas; escape 

panels or ports for pot gear or trawl or 

other net gear; size limits; bag limits; 

time/area closures; other forms of effort 

control including input controls on 

fishing gear such as restrictions on trawl 

size or longline length or number of 

hooks or pots; allocation of species or 

species groups between fishing sectors; 

and a requirement for a Federal observer 

program. Section 6.2 among other 

things, authorizes the Council to close 

fishing seasons or areas, in order to 

57878 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

protect overfished species. Section 6.3 

of the FMP deals with bycatch 

management and measures the Council 

has taken in recent years to reduce 

bycatch. EFH is addressed in section 

6.6. of the FMP. Federal regulations 

implementing the FMP provide fishery 

management requirements as follows: 

gear restrictions at § 660.310; vessel 

monitoring system requirements at 

§ 660.312; observer program 

requirements at § 660.314; allocations at 

§§ 660.320 through 660.324; vessel 

licensing/permitting requirements 

(including capacity reduction measures) 

at §§ 660.331 through 660.341; 

overfished species rebuilding 

parameters at § 660.365; general catch 

restrictions at § 660.370; and Groundfish 

Conservation Area regulations at 

§ 660.390. In addition to these 

regulatory programs, NMFS also 

implemented a trawl permit/vessel 

buyback program in 2003 that reduced 

participation in that fleet by 35 percent. 

Further discussion of management 

measures used to implement the FMP in 

order to provide adequate protection of 

overfished species is provided in the 

final rule to implement the 2004 

specifications and management 

measures (69 FR 11064, March 9, 2004) 

and in the proposed rule to implement 

the 2005–2006 specifications and 

management measures which will be 

published in the Federal Register in 

September 2004.

Comment 6: Scientific evidence 

confirms that repeated bottom trawling 

can damage habitat of species such as 

overfished rockfish. Impacts identified 

in the few studies conducted on the 

West Coast and in studies of comparable 

gears from other areas should inform 

consideration of habitat protection 

measures in the rebuilding plans. None 

of the measures adopted through the 

biennial specifications and management 

measures process are designed to 

address habitat impacts. Management 

measures, such as gear restrictions and 

closed areas, are designed and managed 

for the purpose of reducing bycatch.

Response: As mentioned in the 

response to comment 5, management 

measures, including habitat protection 

measures, are generally not included in 

rebuilding plans. The groundfish fishery 

is managed as a whole under the FMP 

and implementing regulations (50 CFR 

part 660, subpart G), including the 

harvest specifications and management 

measures. [Note: Beginning in 2005, the 

2005 through 2006 harvest specification 

and management measures will be 

codified as part of 50 CFR part 660, 

subpart G, after first being published in 

the Federal Register.]

NMFS agrees that the Groundfish 

Conservation Areas implemented at 50 

CFR 660.390 and through the 

specifications and management 

measures process are designed and 

managed for the purpose of reducing the 

bycatch of overfished species. The 

boundaries of these closed areas are 

based on current information about 

where overfished species commonly 

occur. Fishing by different gear types is 

prohibited within the closed areas, thus, 

groundfish habitat within these closed 

areas is protected from groundfish 

fishing gear impacts. The cowcod 

rebuilding plan provides protection 

measures specific to adult cowcod 

habitat by stating that the Cowcod 

Conservation Areas (CCAs), first 

implemented in 2001, will be a primary 

management measure used for 

protecting cowcod and cowcod habitat.

In addition to closed areas, Federal 

regulations at § 660.310 and in the 2004 

specifications and management 

measures provide gear restrictions 

intended to reduce overfished species 

bycatch, which may provide some 

habitat protection. Large footrope gear, 

which is more likely to damage high 

relief bottom habitat, is prohibited 

shoreward of closed areas, in areas that 

tend to have more rocky relief habitat.

NMFS agrees that the agency needs to 

review available scientific information 

to determine whether its closed areas 

should be revised to provide better 

targeted protection for overfished 

species and their habitats. NMFS does 

not agree, however, that this review 

needs to occur before the agency 

approves Amendment 16–3 or the 

rebuilding plans therein. NMFS is 

developing an environmental impact 

statement (EIS) on groundfish EFH. On 

August 16–18, 2004, the agency held a 

public meeting to draft alternatives for 

the EFH EIS. The draft alternatives, 

which will be reviewed at the Council’s 

September 13–17, 2004, meeting in San 

Diego, CA address groundfish species 

habitat needs, including overfished 

species needs, in three categories of 

alternatives: alternatives for the 

designation of EFH, alternatives for the 

designation of habitat areas of particular 

concern, and alternatives to minimize 

adverse impacts on habitat. A draft of 

the EFH EIS is scheduled for release in 

February 2005. NMFS expects that the 

Council will use that EIS to amend its 

FMP to update its EFH provisions, 

including management measures for 

overfished species habitat protection. 

The agency further expects that 

scientific information on overfished 

species and their habitats will continue 

to improve over time. NMFS and the 

Council will review that information as 

it becomes available, and through a 

public process, to ensure that the FMP 

continues to provide protection for 

overfished species based on the best 

available scientific information.

Comment 7: NMFS has not done the 

analysis needed to determine whether 

current measures are adequate to 

rebuild overfished species because the 

agency has not analyzed the degree to 

which closed areas protect critical 

habitat of overfished species. Further, 

NMFS has not determined what 

modifications would be needed in the 

timing and extent of the closures or gear 

restrictions to address habitat issues for 

rebuilding species. The fact that the 

EFH EIS has not been completed is no 

excuse for omitting habitat protection 

measures from rebuilding plans.

Response:As NMFS has stated in its 

response to Comment 6, the agency is 

developing a draft EIS on West Coast 

groundfish EFH. That EIS is intended to 

provide much needed information on 

species-specific EFH identification. The 

EIS will also be used to develop the 

FMP’s overall approach to identifying 

and reducing the effects of fishing gear 

on groundfish EFH. Some of the EFH 

EIS draft alternatives address whether 

overfished species EFH needs particular 

protection different from that afforded 

to EFH of other groundfish species.

Since the first three groundfish 

species were declared overfished in 

1999, NMFS has been revising its 

various West Coast groundfish 

management policies and measures to 

provide better protections for overfished 

species. Protective fishery management 

measures vary by species and by the 

gear types and fisheries known to affect 

particular species. Adult cowcod, the 

most sedentary and site-specific of the 

overfished species, is protected in key 

habitat with large all-gear area closures 

off southern California. Lingcod, a shelf 

species vulnerable to hook-and-line gear 

during its winter spawning/nesting 

season, is protected through season 

closures. The universal policy that 

guides overfished species rebuilding 

plans is reducing opportunities for 

direct and incidental take of overfished 

species. The rebuilding plans 

themselves provide parameters for 

harvest levels that will allow rebuilding. 

The FMP provides guidance on how to 

constrain harvest to those levels through 

reduced landings limits, gear 

restrictions, season closures, area 

closures, and/or size limits depending 

on which measures are most appropriate 

to each overfished species.

Overfished species allowable total 

catch (directed and incidental) levels 

are based on scientific stock 

assessments. OYs for overfished species 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57879

are set based on those stock 

assessments, through the harvest 

specifications and management 

measures process. The rebuilding plans 

dictate each overfished species’

rebuilding fishing mortality rate (F), 

which may only be revised following 

review via a new stock assessment. 

NMFS sets management measures 

intended to constrain the fisheries so 

that total catch stays within overfished 

species’ OYs. NMFS and the Council 

review and adjust management 

measures to ensure that rebuilding 

harvest goals are met.

The Magnuson-Stevens Act requires 

the Secretary of Commerce (Secretary) 

to review the adequacy of rebuilding 

plans at intervals that may not exceed 

2 years. The rebuilding plans for all 

eight overfished species will be 

reviewed following their 2005 stock 

assessments. This fall, the Council’s 

SSC is drafting revisions to its 

Rebuilding Analyses Terms of Reference 

to incorporate rebuilding plan adequacy 

reviews. These reviews will aid NMFS 

and the Council in determining how 

and whether harvest targets and 

management measures need to be 

revised for the 2007–2008 fishing 

period. Also during 2005–2006, NMFS 

will complete its EFH EIS. The 

completion of that EIS and its 

implementation through an FMP 

amendment, if appropriate, and 

potential Federal regulations will guide 

how EFH management contributes to 

overfished species rebuilding measures.

Comment 8: NMFS should evaluate 

steps like the following to protect 

vulnerable habitat for overfished 

species: (1) Close bottom trawling and 

other damaging bottom gears to all or 

part of the CCA, Soquel Canyon, and 

other canyon heads, rocky outcrops, 

banks and pinnacles that shelter 

cowcod, (2) close bottom trawling in all 

or part of sensitive habitats that support 

or have supported a high abundance of 

big, old bocaccio, and (3) fine-tune the 

Rockfish Conservation Area (RCA) and 

add other areas as needed to take into 

account sensitive habitat for overfished 

species.

Response: NMFS will consider steps 

like those recommended in the EFH EIS 

process, which will examine habitat for 

all groundfish species, as described in 

the response to Comments 6 and 7. 

Currently bottom trawling for 

groundfish is prohibited in the CCA and 

in the trawl RCA, which effectively 

protects many other rocky relief 

habitats.

Comment 9: The rebuilding plans 

contained in Amendment 16–3 lack 

adequate standards for gauging whether 

sufficient progress is being made toward 

rebuilding during the life of the 

rebuilding plan in compliance with 16 

U.S.C. 1854(e)(7). The rebuilding plans 

also lack requirements for enforcement 

and data collection. These 

accountability mechanisms are critical if 

NMFS is to track accurately its own 

progress in rebuilding and be able to 

intervene in order to correct any 

deficiencies that may develop during 

the course of rebuilding.

Response: NMFS believes that the 

rebuilding plans under Amendment 16–

3 are consistent with the requirements 

of the Magnuson-Stevens Act. The 

Magnuson-Stevens Act requires the 

Secretary to review rebuilding plans at 

intervals that may not exceed 2 years. 

During the Amendment 16–1 process, 

for the purpose of clarity, NMFS worked 

with the Council staff to add a sentence 

to the FMP at the end of section 4.5.3.6 

to read, ‘‘Regardless of the Council’s 

schedule for reviewing overfished 

species rebuilding plans, the Secretary, 

through NMFS, is required to review the 

progress of overfished species 

rebuilding plans toward rebuilding 

goals every 2 years, per the MagnusonStevens Act at 16 U.S.C. 304(e)(7).’’

NMFS’s review of the adequacy of 

progress on rebuilding plans will 

primarily be done through stock 

assessment updates and is expected to 

follow the schedule defined by the 

Magnuson-Stevens Act.

As noted in the response to Comment 

7, the Council’s SSC is currently 

developing rebuilding plan adequacy 

review standards to be included in their 

Terms of Reference for Rebuilding 

Analyses. A draft set of standards are to 

be provided to the Council for review in 

September 2004 with final adoption in 

November 2004. By including the 

setting of rebuilding plan progress 

standards in the stock assessment 

development and review process for 

overfished species, the NMFS/Council 

process for developing and reviewing 

stock assessments would continue the 

link between stock assessments and 

rebuilding plans for overfished species. 

NMFS expects that these standards will 

be defined before the Secretary’s review 

of Amendment 16–2 species in January 

2006.

As mentioned previously in the 

response to comment 5, management 

measures to ensure species are 

rebuilding are included in the harvest 

specifications and management 

measures. Accountability mechanisms, 

like enforcement and data collection, 

are included as part of the management 

of the groundfish fishery as a whole, 

through the FMP and implementing 

policies and regulations. These 

programs are designed for multi-species 

fisheries, wherein overfished species 

and abundant species co-occur. 

Therefore, it is not necessary for these 

measures to be included in rebuilding 

plans.

New Rockfish Species in Regulations

With this action, NMFS is updating 

the list of rockfish species defined in the 

CFR at § 660.302 to match the list of 

rockfish species included in the Pacific 

Coast Groundfish FMP. The FMP and 

CFR state that, ‘‘Rockfish includes all 

genera and species of the family 

Scorpaenidae, even if not listed, that 

occur in the Washington, Oregon, and 

California area.’’ These species are 

already specifically listed in the FMP 

and will be added to the CFR. The 

following seven new rockfish species in 

the family Scorpaenidae will be listed in 

the CFR as species managed under the 

FMP: chameleon rockfish, dwarf-red 

rockfish, freckled rockfish, half-banded 

rockfish, pinkrose rockfish, pygmy 

rockfish, and swordspine rockfish. In 

addition, dusty rockfish is corrected to 

read dusky rockfish.

Corrections

NMFS re-arranged the Pacific Coast 

Groundfish regulations on July 15, 2004 

(69 FR 42345) so that they read in a 

more logical order. This reorganization 

did not make substantive changes to the 

existing regulations; rather, it 

reorganized regulatory measures into a 

more logical and cohesive order. In 

publishing the rule on July 15, 2004, 

NMFS neglected to remove § 660.321, 

specifications and management 

measures, which was also added at 

§ 660.370. Therefore, this final rule 

removes the duplicative and outdated 

specifications and management 

measures section at § 660.321. In 

addition, § 660.334(d)(1)(i) and (ii) were 

inadvertently removed and are added 

with this rule.

The observer rule for the whiting atsea processing fleet (69 FR 31751, June 

7, 2004) is corrected so that the 

paragraphs are numbered according to 

the proper format. Since the observer 

rule was published, regulations for the 

groundfish observer program have 

moved from § 660.360 to § 660.314 via 

the re-arranging rule (69 FR 42345, July 

15, 2004). Therefore, paragraphs 

(f)(3)(ii)(B)(i)–(iii) of § 660.314, 

groundfish observer program, are 

corrected to read (f)(3)(ii)(B)(1)–(3).

Finally, a reference to the limited 

entry permit renewal process in 

§ 660.373(h)(3) erroneously refers to 

§ 660.333 and is corrected to refer to 

§ 660.335. These revisions are all 

housekeeping changes to the regulations 

57880 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

and do not alter the effect of Federal 

groundfish regulations.

Classification

The Administrator, Northwest Region, 

NMFS, has determined that Amendment 

16–3 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.

The Council prepared an FEIS that 

discusses the effects on the environment 

as a result of this action. The FEIS was 

filed with the Environmental Protection 

Agency on July 23, 2004. A notice of 

availability for this FEIS was published 

on July 30, 2004 (69 FR 45707). In 

approving Amendment 16–3, on 

September 13, 2004, NMFS issued a 

ROD identifying the selected alternative. 

A copy of the ROD is available from 

NMFS (see ADDRESSES).

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866.

NMFS prepared a final regulatory 

flexibility analysis (FRFA) as part of the 

regulatory impact review. The FRFA 

incorporates the IRFA, the comments 

and responses to the proposed rule, and 

a summary of the analyses completed to 

support the action. A copy of the FRFA 

is available from NMFS (see ADDRESSES) 

and a summary of the FRFA follows:

During the comment period for the 

proposed rule, NMFS received three 

letters of comment, but none of these 

comments addressed the IRFA or 

economic impacts of the rule on small 

businesses. There are no recordkeeping, 

reporting, or other compliance issues 

forthcoming from the proposed rule. 

This final rule does not duplicate, 

overlap, or conflict with other Federal 

rules.

The purpose of this action is to 

implement rebuilding plans for four 

overfished species, bocaccio, cowcod, 

widow rockfish and yelloweye rockfish. 

This action is needed because the 

Magnuson-Stevens Act at 304 (e)(3) 

requires rebuilding plans to be 

implemented as FMPs, FMP 

amendments, or regulations. The 

objective of this final rule is to 

implement rebuilding parameters that 

are intended to result in bocaccio, 

cowcod, widow rockfish, and yelloweye 

rockfish stocks rebuilding to their MSY 

biomass levels.

Amendment 16–3 responds to a Court 

order in Natural Resources Defense 

Council, Inc. v. Evans, 168 F. Supp. 2d 

1149 (N.D. Cal 2001,), in which NMFS 

was ordered to provide Pacific Coast 

groundfish rebuilding plans as FMPs, 

FMP amendments, or regulations, per 

the Magnuson-Stevens Act. On October 

27, 2003, the Court ordered NMFS to 

approve rebuilding plans for bocaccio, 

cowcod, widow rockfish, and yelloweye 

rockfish by September 15, 2004.

Amendment 16–3 follows the 

framework established by Amendment 

16–1 and amends the FMP to include 

rebuilding plans for bocaccio, cowcod, 

widow rockfish, and yelloweye rockfish. 

For each overfished species rebuilding 

plan, the following parameters would be 

specified in the FMP: estimates of 

unfished biomass (B0) and target 

biomass (BMSY), the year the stock 

would be rebuilt in the absence of 

fishing (TMIN), the year the stock would 

be rebuilt if the maximum time period 

permissible under national standard 

guidelines were applied (TMAX), the 

target year in which the stock would be 

rebuilt under the rebuilding plan 

(TTARGET), and the harvest control rule. 

No new management measures are 

proposed in Amendment 16–3. 

Amendment 16–1 described and 

authorized the use of numerous types of 

management measures intended to 

achieve rebuilding. These management 

measures will be implemented through 

the biennial harvest specifications and 

management measures process and will 

be used to constrain fishing to the 

targets identified in the rebuilding 

plans.

The FEIS/RIR/IRFA for this final rule 

defines six alternative actions that were 

considered for each of the four 

overfished species. The alternatives 

present a range of rebuilding strategies 

in terms of rebuilding probabilities for 

each species. The no action alternative 

is based on the ‘‘40–10 harvest policy’’, 

which is the default rebuilding policy 

for setting OYs. Under the 40–10 harvest 

policy, stocks with biomass levels below 

B40% (40 percent of the unfished 

biomass, a proxy for BMSY) have OYs set 

in relation to the biomass level. At B40%

and greater, an OY may be set equal to 

the ABC. However, if a stock’s spawning 

biomass declines below B40%, the OY is 

scaled downward until at 10 percent 

(B10%), the harvest OY is set at zero 

unless modified for a species-specific 

rebuilding plan. In comparison to the 

other alternatives, the 40–10 harvest 

policy generally results in lower OYs in 

the short term, when a stock is at a low 

biomass level, but allows greater 

harvests when a stock is at higher 

biomass levels. For further information 

on the 40–10 harvest policy, see the 

preamble to the final rule for 

Amendment 16–1 (February 26, 2004, 

69 FR 8861) or Section 5.3 of the FMP. 

The 40–10 harvest policy alternative 

would not result in rebuilding for three 

of the four overfished species (i.e., only 

bocaccio would be rebuilt within TMAX) 

within the maximum allowable 

rebuilding time. Lack of rebuilding for 

these species makes this alternative not 

a legally-viable alternative and increases 

the risk to long-term productivity of the 

stock.

The maximum conservation 

alternative, Alternative 4, specifies the 

most conservative harvests that would 

allow these four species to rebuild and 

has the highest probability, 90 percent, 

of rebuilding within TMAX (except for 

cowcod which has a 60–percent 

probability). Each stock is expected to 

rebuild fastest under this alternative, 

but at considerable socioeconomic cost. 

Short-term socioeconomic costs would 

be highest under this alternative due to 

severe restrictions on fishing 

opportunity to allow the stock to rebuild 

faster.

The maximum harvest alternative, 

Alternative 1, for each overfished 

species was based on a 60 percent 

probability of rebuilding the stocks to 

their MSY biomass levels by TMAX, 

except for cowcod which was based on 

a 55 percent probability. This 

alternative would delay rebuilding for 

the longest period of time with the 

intent of keeping harvests at the highest 

allowable levels for the duration of 

rebuilding. Because this alternative 

would allow fishermen an opportunity 

to harvest higher levels in the shortterm, this alternative would have the 

least socioeconomic impact. However, 

allowing higher harvest levels in the 

short-term would slow down rebuilding 

and, thus, have the highest risk among 

the action alternatives of not rebuilding 

within TMAX.

Intermediate alternatives, Alternatives 

2 and 3, were defined for each 

overfished species and were based on 

70–and 80- percent probabilities of 

rebuilding the stocks to their MSY 

biomass by TMAX (except that cowcod 

was based on a 60–percent probability 

for Alternatives 2 and 3). The socioeconomic impacts of the intermediate 

alternatives fall within the range of the 

other alternatives that were fully 

analyzed in the FEIS. Alternative 2 

would have more socio-economic 

impacts than Alternative 1, but less than 

Alternative 3. Alternative 3 would have 

more socio-economic impacts than 

Alternative 2, but less than Alternative 

4. Alternative 2 would have a lower risk 

of not rebuilding within TMAX than 

Alternative 1, but higher than 

Alternative 3. Alternative 3 would have 

a lower risk of not rebuilding within 

TMAX than Alternative 2, but higher 

than Alternative 4.

After the draft EIS was made available 

by EPA for public review (69 FR 18897, 

April 9, 2004), the Council selected 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57881

their preferred alternatives at their April 

2004 meeting. The Council-preferred 

alternative for each species, as analyzed 

in the FEIS, is as follows: bocaccio, 

Alternative 2 (using the STATc Model) 

– 70–percent probability of rebuilding 

the stock to its MSY biomass by TMAX

with a TTARGET of 2023 and a harvest 

rate of 0.0498; cowcod, Alternatives 2 

through 4 (all the same) - 60–percent 

probability of rebuilding the stock to its 

MSY biomass by TMAX with a TTARGET

of 2090 and a harvest rate of 0.009; 

widow rockfish, Alternative 1 (using 

Model 8) – 60–percent probability of 

rebuilding the stock to its MSY biomass 

by TMAX with a TTARGET of 2038 and a 

harvest rate of 0.0093; and yelloweye 

rockfish, Alternative 3 – 80–percent 

probability of rebuilding the stock to its 

MSY biomass by TMAX with a TTARGET

of 2058 and a harvest rate of 0.0153. The 

Council-preferred alternative for each 

species was chosen by balancing 

biological and economic risks, 

maximizing the likelihood of rebuilding 

the stock while minimizing the socioeconomic impacts on the industry.

A fish-harvesting business, including 

commercial harvesters and charter/party 

boat operators, is considered a ‘‘small’’

business by the Small Business 

Administration if it has annual receipts 

not in excess of $3.5 million. For 

wholesale businesses, a small business 

is one that employs not more than 100 

people. The economic impact of 

implementing these rebuilding plans 

will be shared among commercial 

harvesters and recreational operators. 

More detailed information on the 

groundfish catch in these sectors is 

provided in the FEIS/IRFA.

There are approximately 4,600 

commercial vessels fishing from West 

Coast ports. Of these, 1,709 vessels had 

some involvement in West Coast 

groundfish fisheries, 421 of those held 

groundfish limited entry permits, and 

an additional 771 participated in open 

access groundfish fisheries (if vessels 

derive more than 5 percent of total 

revenue from groundfish and do not 

have a limited entry permit, then they 

are considered to be participating in 

open access fisheries). After the buyback 

program in the fall of 2003, 91 limited 

entry trawl vessels and their permits 

were permanently retired, representing 

a 35 percent reduction in the capacity 

of the limited entry trawl fleet in terms 

of permits.

In 2001, there were an estimated 753 

recreational fishing charter vessels 

operating in ocean fisheries on the West 

Coast: 106 in Washington, 232 in 

Oregon and 415 in California.

There are about 1,700 commercial 

vessels and 750 recreational charter 

operators that may be affected by these 

actions. Although there is some double 

counting, most of these entities would 

probably qualify as small businesses 

under SBA criteria. No alternatives, 

other than those considered in the FEIS, 

have been identified that would reduce 

the impact on small entities. In addition 

to an opportunity for public comment 

on the proposed rule, DEIS and IRFA, 

the Council process for developing a 

preferred alternative is conducted in an 

open forum with industry advisory 

groups that assist the Council in 

developing options that meet regulatory 

objectives and conservation goals, in 

particular, with the least possible 

impact on fishing businesses. This rule 

is not expected to yield disproportionate 

economic impacts between those small 

and large entities.

Implementation of specific rebuilding 

plans may entail substantial economic 

impacts on some groundfish buyers, 

commercial harvesters, and in the case 

of bocaccio, cowcod, and yelloweye 

rockfish, recreational operators. The 

economic impact will vary according to 

their dependency on groundfish-related 

income, the frequency of overfished 

species in their area of the coast, and the 

severity of those species overfished 

status. The Council-preferred alternative 

specifies annual OY levels for the 

overfished species that are sufficient to 

mitigate some of the adverse economic 

impacts on these entities, while not 

compromising the statutory requirement 

for timely rebuilding. NMFS will 

implement the Council-preferred 

alternative.

This action was developed after 

meaningful consultation and 

collaboration with tribal representatives 

on the Council, who have agreed with 

the provisions that apply to tribal 

vessels. This action is, therefore, 

compliant with Executive Order 13175 

(Consultation and coordination with 

Indian tribal governments).

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 22, 2004.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory Programs, 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

■ 1. The authority citation for part 660 

continues to read as follows:

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

■ 2. In § 660.302, in the definition of 

‘‘Groundfish,’’ under ‘‘Rockfish:’’

remove ‘‘dusky rockfish, S. ciliatus,’’ and 

add ‘‘chameleon rockfish, S. phillipsi,’’

‘‘dwarf-red rockfish, S. rufinanus,’’

‘‘dusky rockfish, S. ciliatus,’’ ‘‘freckled 

rockfish, S. lentiginosus,’’ ‘‘half-banded 

rockfish, S. semicinctus,’’ ‘‘pinkrose 

rockfish, S. simulator,’’ ‘‘pygmy rockfish, 

S. wilsoni,’’ and ‘‘swordspine rockfish, S. 

ensifer’’ in alphabetical order to read as 

follows:

§ 660.302 Definitions.

* * * * *

Groundfish * * *

Rockfish:

* * * * *

chameleon rockfish, S. phillipsi

* * * * *

dwarf-red rockfish, S. rufinanus

dusky rockfish, S. ciliatus

* * * * *

freckled rockfish, S. lentiginosus

* * * * *

half-banded rockfish, S. semicinctus,

* * * * *

pinkrose rockfish, S. simulator

pygmy rockfish, S. wilsoni

* * * * *

swordspine rockfish, S. ensifer

* * * * *

§ 660.314 [Amended]

■ 3. In § 660.314, paragraphs 

(f)(3)(ii)(B)(i) through (iii) are 

redesignated to read (paragraphs 

f)(3)(ii)(B)(1) through (3).

§ 660.321 [Removed and reserved]

■ 4. Remove and reserve § 660.321.

■ 5. In § 660.334, paragraphs (d)(1)(i) and 

(ii) are added to read as follows:

§ 660.334 Limited entry permits –

endorsements.

* * * * *

(d) * * *

(1) * * *

(i) A sablefish endorsement with a tier 

assignment will be affixed to the permit 

and will remain valid when the permit 

is transferred.

(ii) A sablefish endorsement and its 

associated tier assignment are not 

separable from the limited entry permit, 

and therefore may not be transferred 

57882 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

separately from the limited entry 

permit.

* * * * *

■ 6. In § 660.365, the introductory 

paragraph and paragraphs (e) through (h) 

are added to read as follows:

§ 660.365 Overfished species rebuilding 

plans.

For each overfished groundfish stock 

with an approved rebuilding plan, this 

section contains the standards to be 

used to establish annual or biennial 

OYs, specifically the target date for 

rebuilding the stock to its MSY level 

and the harvest control rule to be used 

to rebuild the stock.

* * * * *

(e) Bocaccio. The target date for 

rebuilding the southern bocaccio stock 

to BMSY is 2023. The harvest control rule 

to be used to rebuild the southern 

bocaccio stock is an annual harvest rate 

of F=0.0498.

(f) Cowcod. The target year for 

rebuilding the cowcod stock south of 

Point Conception to BMSY is 2090. The 

harvest control rule to be used to 

rebuild the cowcod stock is an annual 

harvest rate of F=0.009.

(g) Widow rockfish. The target year for 

rebuilding the widow rockfish stock to 

BMSY is 2038. The harvest control rule 

to be used to rebuild the widow rockfish 

stock is an annual harvest rate of 

F=0.0093.

(h) Yelloweye rockfish. The target year 

for rebuilding the yelloweye rockfish 

stock to BMSY is 2058. The harvest 

control rule to be used to rebuild the 

yelloweye rockfish stock is an annual 

harvest rate of F=0.0153.

■ 7. In § 660.373, paragraph (h)(3) is 

revised to read as follows:

§ 660.373 Pacific whiting (whiting) fishery 

management.

* * * * *

(h) * * *

(3) When renewing its limited entry 

permit each year under § 660.335, the 

owner of a catcher/processor used to 

take and retain whiting must declare if 

the vessel will operate solely as a 

mothership in the whiting fishery 

during the calendar year to which its 

limited entry permit applies. Any such 

declaration is binding on the vessel for 

the calendar year, even if the permit is 

transferred during the year, unless it is 

rescinded in response to a written 

request from the permit holder. Any 

request to rescind a declaration must be 

made by the permit holder and granted 

in writing by the Regional 

Administrator before any unprocessed 

whiting has been taken on board the 

vessel that calendar year.

* * * * *

[FR Doc. 04–21691 Filed 9–27–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 679

[Docket No. 031124287–4060–02; I.D. 

092204A]

Fisheries of the Exclusive Economic 

Zone Off Alaska; Atka Mackerel in the 

Central Aleutian District of the Bering 

Sea and Aleutian Islands

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Closure.

SUMMARY: NMFS is prohibiting directed 

fishing for Atka mackerel in the Central 

Aleutian District of the Bering Sea and 

Aleutian Islands management area 

(BSAI). This action is necessary to 

prevent exceeding the 2004 total 

allowable catch (TAC) of Atka mackerel 

in this area.

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), September 23, 2004, 

through 2400 hrs, A.l.t., December 31, 

2004.

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228.

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 

according to the Fishery Management 

Plan for the Groundfish Fishery of the 

Bering Sea and Aleutian Islands Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679.

The 2004 TAC specified for Atka 

mackerel in the Central Aleutian District 

of the BSAI is 28,768 metric tons (mt) 

as established by the 2004 harvest 

specifications for groundfish of the 

BSAI (69 FR 9242, February 27, 2004).

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2004 TAC for Atka 

mackerel in the Central Aleutian District 

will soon be reached. Therefore, the 

Regional Administrator is establishing a 

directed fishing allowance of 28,650 mt, 

and is setting aside the remaining 118 

mt as bycatch to support other 

anticipated groundfish fisheries. In 

accordance with § 679.20(d)(1)(iii), the 

Regional Administrator finds that this 

directed fishing allowance has been 

reached. Consequently, NMFS is 

prohibiting directed fishing for Atka 

mackerel in the Central Aleutian District 

of the BSAI.

After the effective date of this closure 

the maximum retainable amounts at 50 

CFR 679.20(e) and (f) apply at any time 

during a trip.

Classification

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA, 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such a requirement 

is impracticable and contrary to the 

public interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of the directed fishery 

for Atka mackerel in the Central 

Aleutian District of the BSAI.

The AA also finds good cause to 

waive the 30–day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment.

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866.

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

Dated: September 22, 2004.

Alan D. Risenhoover,

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service.

[FR Doc. 04–21685 Filed 9–23–04; 2:57 pm]

BILLING CODE 3510–22–S