[Federal Register Volume 65, Number 98 (Friday, May 19, 2000)]
[Proposed Rules]
[Pages 31871-31873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12576]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 000504124-0124-01; I.D. 011900B]
RIN 0648-AK11


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Prohibition on the Use of Set Net 
Fishing Gear

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

ACTION: Proposed rule.

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SUMMARY: NMFS proposes regulations to prohibit the use of set net 
(gillnet and trammel nets) fishing gear to take groundfish species in 
portions of the exclusive economic zone (EEZ) (also known as the 
fishery management area) adjacent to state waters at four areas off 
California. Groundfish fisheries in the fishery management area are 
managed under the Fishery Management Plan for Groundfish Fisheries off 
the West Coast (Groundfish FMP). California has jurisdiction over 
fishing for groundfish and other species both within State waters and, 
with respect to State registered vessels, in the EEZ off California as 
long as State regulations are not in conflict with Federal regulations. 
This action would achieve consistency between regulations in waters 
under California jurisdiction and those in the EEZ. This action is 
intended to promote effective and consistent conservation of groundfish 
stocks and California managed species throughout their range and to 
avoid unnecessary bycatch of California-managed species that might 
otherwise be harvested in the closed areas but discarded.

DATES: Comments must be submitted by June 19, 2000.

ADDRESSES: Comments on the proposed rule should be sent to Rodney R. 
McInnis, Acting Regional Administrator, Southwest Region, NMFS, 501 
West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT: Svein Fougner, Sustainable Fisheries 
Division, Southwest Region, NMFS, 562-980-4040.

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) authorizes regional fishery 
management councils to prepare and submit fishery management plans 
(FMPs) to the Secretary of Commerce (Secretary) for approval and 
implementation. An FMP may incorporate the relevant fishery 
conservation and management measures of the coastal states, to the 
extent they are consistent with the National Standards, the other 
provisions of the Magnuson-Stevens Act, and any other applicable law.
    The Groundfish FMP was prepared by the Pacific Fishery Management 
Council (Council) and approved by the Secretary of Commerce in 1982. 
The FMP covers fisheries for over 80 species, including species that 
are taken in the EEZ and in State waters off California, Oregon and 
Washington. In the absence of Federal regulations under the Magnuson-
Stevens Act a state may continue to apply its own regulations to 
fishers registered under the laws of that State even if they are 
fishing in the EEZ. Further, even for a fishery managed under an FMP, a 
state's regulations that affect fishing for managed species may remain 
in force as long as they do not conflict with the Federal regulations 
governing that fishery.
    The Council recognized that there could be instances in which it 
might be desirable or necessary to adjust Federal regulations 
(pertaining to) fishing for species under the FMP to be consistent with 
state regulations to achieve effective conservation of groundfish as 
well as non-groundfish stocks that occur in both the EEZ and state 
waters. Therefore, the FMP contains procedures whereby state 
regulations can be reviewed by the Council to determine that state 
regulations are consistent with the FMP. The Council, after making such 
a determination, may request that Federal regulations be promulgated to 
ensure consistency in letter and effect.
    This is the case with this proposed rule. As provided by the FMP, 
the Council reviewed for consistency with the goals and objectives of 
the FMP, California regulations prohibiting the use of set nets in 
certain EEZ waters adjacent to California waters. In deference to 
California's historical management of halibut and white croaker and in 
the interest of sound and consistent fishery management, the Council 
recommended that NMFS implement regulations to prohibit set net fishing 
for groundfish species in the portions of the EEZ in the areas 
currently closed under California law.
    There are four California closures that would be affected by this 
proposed rule: (1) The portion of the fishery management area in an 
area between a line extending 245 deg. magnetic from the most westerly 
point of the west point of the Point Reyes headlands in Marin County 
and the westerly extension of the California-Oregon boundary; (2) any 
waters in the fishery management area which are 40 fathom (fm) or less 
deep at mean lower low tide between a line extending 245 deg. magnetic 
from the most westerly point of the west point of the Point Reyes 
headlands in Marin County and a line extending 225 deg. magnetic from 
Pillar Point at half Moon Bay in San Mateo County, and 60 fm or less 
deep at mean lower low tide between a line extending 225 deg. magnetic 
from Pillar Point at Half Moon Bay in San Mateo County to a line 
extending 220 deg. magnetic from the mouth of Waddell Creek in Santa 
Cruz County; (3) any waters in the fishery management area that are 30 
fm or less deep at mean lower low tide within the portion of California 
District 18 north of a line extending due west from Point Sal in Santa 
Barbara County; and (4) any waters in the fishery management area that 
are less than 35 fm deep in the area between a line running 180 deg. 
true from Point Fermin and a line running 270 deg. true from the south 
jetty of Newport Harbor. This last area is called Huntington Flats.
    The primary goal of closures (1) through (3) was to minimize 
entanglement and drowning of protected birds and marine mammals off 
central California. Federal studies confirm that the take of sea otters 
and harbor porpoises has decreased significantly since California 
established set net closures in coastal waters. Closure (4) was the 
result of the Marine Resources Protection Act (MRPA), which was adopted 
through voters' approval of a ballot initiative (Proposition 132) in 
1990. As in central California, several set net prohibitions in 
southern California were motivated

[[Page 31872]]

by the desire to minimize the adverse impacts of set net fishing on 
nontarget marine mammals, rockfish, and lingcod resources. However, at 
Huntington Flats, the primary emphasis was on public concern for state 
species, particularly California halibut, rather than protected species 
or targeted groundfish.
    ``Set net'' is a term used in California law to define ``any net or 
line used to take fish that is anchored to the bottom on each end and 
is not free to drift with the tide or current.'' This generic term 
includes gillnets and trammel nets as specified in Federal regulations: 
``Set net: A stationary, buoyed, and anchored gillnet or trammel net'' 
(50 CFR 660.302(17)). A ``gillnet'' is defined in Federal regulations 
as ``a rectangular net that is set upright in the water'' (50 CFR 
600.10(i)); a ``trammel net'' is defined as ``a gillnet made with two 
or more walls joined to a common float line'' (50 CFR 660.302(20)). Set 
nets work by gilling or entangling fish in their mesh.
    Laws regulating set nets in the EEZ off California have typically 
been enacted by the California legislature to prevent drowning of 
marine birds and mammals, to conserve fishery resources, and to reduce 
fisheries conflicts. In 1990, California voters approved the MRPA, 
which prohibits the use of set nets to take rockfish in the EEZ. It 
also prohibits the use of set nets to take all species of fish in 
California waters along the mainland shore, within 1 mile of the 
offshore Channel Islands south of Point Arguello and in an area of the 
EEZ less than 35 fm deep at the Huntington Flats between the ports of 
San Pedro, Los Angeles County, and Newport Beach, Orange County.
    Federal regulations implementing the FMP prohibit the use of set 
nets in the EEZ north of 38 deg. N.lat. (Point Reyes, Marin County) but 
are silent on whether California's set net laws involving the take of 
groundfish continue to apply in the EEZ south of 38 deg. N. lat. The 
current regulations do not specifically authorize California to 
regulate set nets in the EEZ south of 38 deg. N.lat.
    The absence of Federal groundfish regulations that specifically 
address California laws resulted in a Federal district court challenge 
by the Los Angeles Commercial Fishermen's Association (LACFA) on the 
legality of California's enforcement of set net prohibitions on the 
take of groundfish in the EEZ in the Huntington Flats area. On November 
22, 1996, the LACFA obtained a court order that prohibited California 
from enforcing the MRPA prohibition on the use of set nets at 
Huntington Flats, and authorized set net permittees to fish for all 
commercial species of fish, not just groundfish, with set nets in the 
EEZ at Huntington Flats in waters less than 70 fm deep. This temporary 
restraining order was extended by a preliminary injunction issued March 
20, 1997.
    The purpose of this proposed action is to resolve the unintended 
conflict between the lack of Federal regulations under the FMP, which 
is silent on the use of set nets south of 38 deg. N.lat. and California 
regulations, which prohibit the use of set nets both in State waters 
and some areas inside the EEZ. The set net closures are intended to 
conserve a number of non-groundfish species and non-fish living marine 
resources that are managed under California regulations and are taken 
in some areas incidental to fishing for groundfish. This proposed 
action should resolve this legal dispute and allow lifting of the 
injunction, allowing effective enforcement of the California law and 
regulations and conservation of the fish and non-fish species involved.
    This action is consistent with the Magnuson-Stevens Act and 
especially with National Standards 7 and 9. National Standard 7 
provides that management shall minimize duplication and costs in the 
conservation of fishery resources. The proposed action will reduce the 
cost of administering and enforcing state conservation and management 
measures in the identified areas by providing a single set of 
consistent measures. National Standard 9 provides that conservation and 
management measures shall, to the extent practicable, minimize bycatch 
and, to the extent bycatch cannot be avoided, minimize the mortality of 
such bycatch. This National Standard requires Councils to consider the 
bycatch effects of existing and planned conservation and management 
measures. Set net gear is relatively non-selective gear, and though 
groundfish may be the target species, there is often bycatch of other, 
non-groundfish species such as California halibut (much of which is 
dead and therefore wasted). The proposed action will reduce this 
bycatch of species managed under California regulations in both 
California waters and the EEZ.
    The proposed action also promotes conservation Objective 4 of the 
FMP, which is to control the impacts of the groundfish fishery on non 
groundfish species to maintain their long-term reproductive health 
where conservation problems have been identified for non-groundfish 
species and the best scientific information shows that the groundfish 
fishery has a direct impact on the ability of those species to maintain 
their long-term reproductive health. The FMP authorizes the Council to 
consider establishing management measures to reduce fishing mortality 
of non-groundfish species for documented conservation reasons. In this 
instance, fishers are currently able to fish for groundfish with set 
net gear in the identified areas, and non-groundfish will be taken 
incidental to groundfish. Those non-groundfish species will either be 
killed and discarded or will be retained illegally; in either case, 
there will be fishing mortality above that which the state would allow 
in its management program for those non-groundfish species. The 
proposed action is designed to eliminate this mortality from bycatch of 
non-groundfish species while minimizing disruption of the groundfish 
fishery; it will not preclude achievement of any quota, harvest 
guideline, or allocation of groundfish.
    In addition to the preferred action, two alternatives to address 
this issue were considered by the Council. The ``no action'' 
alternative would have resulted in the Council not recommending any 
regulations. The second alternative would have set Federal regulations 
the same as State laws for three areas off central California but 
allowed the continued use of set nets to take groundfish in the EEZ at 
Huntington Flats off southern California. The Council ultimately 
concluded that the lack of a determination affirming the consistency of 
Federal and California regulations left a legal void that impaired 
enforcement of California laws and regulations to conserve non-
groundfish species and other living marine resources.

Classification

    The proposed action is consistent with the requirements of the 
Magnuson-Stevens-Act and the Groundfish FMP. The proposed action will 
not result in, or promote overfishing of, any groundfish stocks or 
other species. The proposed action should reduce bycatch of non-
groundfish species in the area closed to set net fishing. There may be 
some improved protection of essential fish habitat for groundfish 
species in the areas closed to set net fishing. The proposed action 
will eliminate confusion about applicable regulations in the area while 
enhancing the enforcement of California regulations. There will be no 
duplication of effort.
    NMFS prepared an initial regulatory flexibility analysis (IRFA) 
that describes the impacts that the proposed rule, if adopted, would 
have on small entities. A copy of this analysis is available from NMFS 
(see ADDRESSES). A summary of the analysis follows.

[[Page 31873]]

    The direct effect of this Federal action would be to prohibit 
fishing for groundfish species using set net gear in the EEZ in the 
Huntington Flats area. This will affect fishers who have used set net 
gear in the waters to be closed. It is noted that four areas would be 
closed; however, direct effects of the action would only be felt at 
Huntington Flats, as there apparently has been no set net fishing in 
the other three areas for many years. Therefore, no new effects would 
be felt from the closure of those 3 years by Federal regulation. This 
action is not expected to affect processors since other gear types 
continue to land Federal species in this area at levels comparable to 
those before the closure.
    The category of small businesses possibly affected by the proposed 
regulation is the 89 vessels that reported set net landings from the 
Huntington Flats area between 1990 and 1995. Owners of 33 of the 89 
vessels held gill and trammel net permits in the 1996-1997 season, and 
thus may be directly affected by this rule by not being able to fish 
for groundfish in the EEZ at depths less than 35 fm in the Huntington 
Flats area. These 33 permit holders represent 14 percent of 
California's total of 235 gill and trammel net permit-holders. While an 
evaluation of the effects on individual vessels has not been conducted, 
estimates for the group of vessels show that the reduction in gross 
revenues for most vessels is likely to be well below 5 percent. An 
analysis for the proposed action showed that, for a subset of active 
set net vessels, an average of 30 percent of total annual value by 
vessel comes from set net fishing in the Huntington Flats area. The 
remaining 70 percent is taken by other gear types or in other areas. Of 
the average vessel's annual value of landings from Huntington Flats (30 
percent of the total from all areas and gear types), the value of 
groundfish species represents only 4.5 percent. This represents the 
value of groundfish species caught in the entire Huntington Flats area, 
and thus includes the EEZ outside the closure in question (beyond 
depths of 35 fm). The proposed action allows for set net fishing for 
groundfish at depths deeper than 35 fm, and public testimony from LACFA 
indicates up to seven vessels can successfully operate outside 35 fm 
(see Section 4.2). Further, the proposed action does not prohibit the 
use of other gear or fishing for other species within or outside the 
closure area. Based on this analysis, it is expected the closure of 
Federal waters out to 35 fm at the Huntington Flats area will result in 
an average reduction of 1.4 percent of annual gross revenue by vessel.
    In addition to the proposed action, two alternatives were 
considered. The first, a ``no action'' alternative, would impose the 
least burden on small entities. However, this alternative would leave 
the inconsistency between California and Federal regulations in place 
and would greatly increase the difficulty of enforcing California 
regulations at Huntington Flats. There could be significant bycatch and 
discard mortality of state-managed species taken in association with 
groundfish. Further, if set net fishing were to resume in the other 
three areas, there could be adverse effects on marine mammals and 
seabirds. The other alternative would adopt the proposed Federal 
closures for the three areas in which California's action has already 
resulted in elimination of set net fishing, while allowing set net 
fishing to continue at Huntington Flats. This alternative would 
reinforce California's closures and maintain protection for marine 
mammals and seabirds. However, it would also maintain the inconsistency 
between State and Federal regulations at Huntington Flats, creating 
enforcement difficulties for the California and possibly result in 
significant bycatch and discard mortality as set net fishers could 
retain groundfish but not state-managed species taken in this portion 
of the EEZ. Therefore, this alternative was rejected.
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    An informal consultation was conducted under section 7 of the 
Endangered Species Act and it was determined that the proposed action 
is not likely to adversely affect any listed species or adversely 
affect any critical habitat designated for any listed species.
    The proposed action should reduce the potential for entanglement of 
marine mammals in set nets in the area to be closed to set net fishing 
and therefore is consistent with the Marine Mammal Protection Act.
    This action is being proposed in response to a request from 
California that was endorsed by the Council. The action will make 
California regulations and Federal regulations consistent and will thus 
facilitate sound conservation of state-managed resources as well as 
federally-managed resources. No new costs are imposed on California. 
Thus, the proposed action is consistent with E.O. 13132 of August 4, 
1999.

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: May 12, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 660 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 Sec. 660.322, paragraph (d) is revised to read as follows:


Sec. 660.322  Gear restrictions.

* * * * *
    (d) Set nets. Fishing for groundfish with set nets is prohibited in 
the following portions of the fishery management area:
    (1) Waters north of 38 deg. N.lat.;
    (2) The area between a line extending 245 deg. magnetic from the 
most westerly point of the west point of the Point Reyes headlands in 
Marin County and the westerly extension of the California-Oregon 
boundary;
    (3) Waters which are 40 fm or less deep at mean lower low tide 
between a line extending 245 deg. magnetic from the most westerly point 
of the west point of the Point Reyes headlands in Marin County and a 
line extending 225 deg. magnetic from Pillar Point at half Moon Bay in 
San Mateo County, and 60 fm or less deep at mean lower low tide between 
a line extending 225 deg. magnetic from Pillar Point at Half Moon Bay 
in San Mateo County to a line extending 220 deg. magnetic from the 
mouth of Waddell Creek in Santa Cruz County;
    (4) The portion of California District 18 north of a line extending 
due west from Point Sal in Santa Barbara County in waters 30 fm or less 
deep at mean lower low tide in the portion of the EEZ between a line 
extending due west form Point Sal in Santa Barbara County and a line 
extending due south from Point San Luis in San Luis Obispo County; and
    (5) In waters less than 35 fm deep between a line running 180 deg. 
true from Point Fermin and a line running 270 deg. true from the south 
jetty of Newport Harbor.

[FR Doc. 00-12576 Filed 5-18-00; 8:45 am]
BILLING CODE 3510-22-F