Federal Register / Vol. 65, No. 98 / Friday, May 19, 2000 / Proposed Rules 31871

(3) Additional information concerning

the range, distribution, and population

size of this species;

(4) Current or planned activities in the

subject area and their possible impacts

on the mountain yellow-legged frog or

its habitat.

Author: The primary author of this

notice is Glen Knowles (see ADDRESSES

section).

Authority: The authority for this action is

the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Dated: May 15, 2000.

Elizabeth H. Stevens,

Acting Manager, California/Nevada

Operations Office.

[FR Doc. 00–12608 Filed 5–18–00; 8:45 am]

BILLING CODE 4310–55–U

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.

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 Californiamanaged 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 MagnusonStevens 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° 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° magnetic from the most

westerly point of the west point of the

Point Reyes headlands in Marin County

and a line extending 225° 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° magnetic from Pillar

Point at Half Moon Bay in San Mateo

County to a line extending 220°

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° true from

Point Fermin and a line running 270°

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

31872 Federal Register / Vol. 65, No. 98 / Friday, May 19, 2000 / Proposed Rules

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° 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° N. lat. The current

regulations do not specifically authorize

California to regulate set nets in the EEZ

south of 38° 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° 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 nonselective 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 nongroundfish 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 nongroundfish 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 MagnusonStevens-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.

Federal Register / Vol. 65, No. 98 / Friday, May 19, 2000 / Proposed Rules 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 statemanaged 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 § 660.322, paragraph (d) is

revised to read as follows:

§ 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° N.lat.;

(2) The area between a line extending

245° magnetic from the most westerly

point of the west point of the Point

Reyes headlands in Marin County and

the westerly extension of the CaliforniaOregon boundary;

(3) Waters which are 40 fm or less

deep at mean lower low tide between a

line extending 245° magnetic from the

most westerly point of the west point of

the Point Reyes headlands in Marin

County and a line extending 225°

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° magnetic

from Pillar Point at Half Moon Bay in

San Mateo County to a line extending

220° 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° true from

Point Fermin and a line running 270°

true from the south jetty of Newport

Harbor.

[FR Doc. 00–12576 Filed 5–18–00; 8:45 am]

BILLING CODE 3510–22–F