[Federal Register Volume 65, Number 225 (Tuesday, November 21, 2000)]
[Proposed Rules]
[Pages 69898-69906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29781]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 001030303-0303-01; I.D. 091900E]
RIN 0648--AO41


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Amendment 13

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

ACTION: Proposed rule; request for comments.

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SUMMARY:  NMFS issues this proposed rule to implement portions of 
Amendment 13 to the Pacific Coast Groundfish Fishery Management Plan 
(FMP). Amendment 13 is intended to make the FMP consistent with the 
bycatch provisions of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Amendment 13 would also increase 
flexibility in the groundfish annual specifications and management 
measures process to allow the Council to more easily craft measures 
that protect overfished and depleted species, and would amend the 
limited entry permit provisions to remove unused and outdated limited 
entry permit endorsements. This proposed rule would introduce an 
increased utilization program for the at-sea whiting fisheries, revise 
the regulatory provisions for the routine management measures process, 
and remove regulatory references to limited entry permit endorsements 
other than the ``A'' endorsement.

DATES: Comments must be submitted in writing by January 5, 2001.

ADDRESSES:  Send comments to Donna Darm, Acting Administrator, 
Northwest Region, (Regional Administrator) NMFS, 7600 Sand Point Way 
NE., Seattle, WA 98115; or Rebecca Lent, Administrator, Southwest 
Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-
4213. Copies of Amendment 13 to the Pacific Coast Groundfish FMP and 
the environmental assessment/regulatory impact review (EA/RIR) are 
available from Donald McIsaac, Executive Director, Pacific Fishery 
Management Council, 2130 SW Fifth Avenue, Suite 224, Portland, OR 
97201. Send comments regarding the reporting burden estimate or any 
other aspect of the collection-of-information requirements in this 
proposed rule to the NMFS address and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
DC 00503 (Attn: NOAA Desk Officer). Send comments regarding any 
ambiguity or unnecessary complexity arising from the language used in 
this rule to Donna Darm or Rebecca Lent.

FOR FURTHER INFORMATION CONTACT: William Robinson at: phone, 206-526-
6140; fax, 206-526-6736; and email, <a href="/cdn-cgi/l/email-protection#cfada6a3a3e1bda0ada6a1bca0a18fa1a0aeaee1a8a0b9"><span class="__cf_email__" data-cfemail="e082898c8cce928f82898e938f8ea08e8f8181ce878f96">[email protected]</span></a>. Svein 
Fougner at: phone, 562-980-4000; fax, 562-980-4047; and email, 
<a href="/cdn-cgi/l/email-protection#6e1d180b07004008011b09000b1c2e00010f0f40090118"><span class="__cf_email__" data-cfemail="b5c6c3d0dcdb9bd3dac0d2dbd0c7f5dbdad4d49bd2dac3">[email protected]</span></a>.

[[Page 69899]]


SUPPLEMENTARY INFORMATION: Electronic Access: This Federal Register 
document is also accessible via the internet at the website of the 
Office of the Federal Register: http://www.access.gpo.gov/su-docs/aces/aces140.html.
    On October 11, 1996, the Sustainable Fisheries Act went into 
effect, significantly amending the Magnuson-Stevens Act. Fishery 
management councils were required by the newly amended Magnuson-Stevens 
Act to revise their fishery management plans to address several large 
areas of concern in fishery management, including overfishing and the 
rebuilding of overfished stocks; bycatch and bycatch mortality; 
essential fish habitat (EFH); and the effects of fishery management 
actions on fishing communities.
    The Pacific Fishery Management Council (Council) prepared Amendment 
13 to the FMP and submitted it on September 11, 2000, for Secretarial 
review. NMFS published a notice of availability for Amendment 13 in the 
Federal Register on September 22, 2000 (65 FR 57308), announcing a 60-
day public comment period, which ends on November 21, 2000.
    The Council amended its groundfish FMP with Amendment 11 to bring 
the FMP into compliance with the Magnuson-Stevens Act. Amendment 11 
includes provisions amending the FMP framework that define ``optimum 
yield'' for setting annual groundfish harvest limits; defining rates of 
``overfishing'' and levels at which managed stocks are considered 
``overfished;'' defining Pacific Coast groundfish EFH; setting a 
bycatch management objective and a framework for bycatch reduction 
measures; establishing a management objective to take the importance of 
fisheries to fishing communities into account when setting groundfish 
management measures; providing authority within the FMP for the Council 
to require groundfish use permits for all groundfish users; authorizing 
the use of fish for compensation for private vessels conducting NMFS-
approved research; and, making other, lesser updates to the FMP. NMFS 
approved all of the FMP amendment except for those provisions 
addressing bycatch. The bycatch provisions of Amendment 11 were sent 
back to the Council for further development. Amendment 13 is the result 
of the Council's efforts and would make the FMP consistent with the 
bycatch provisions of the Magnuson-Stevens Act.
    When, on March 3, 1999, NMFS notified the Council that it had 
approved most of Amendment 11 to the FMP, it also notified the Council 
that three species (lingcod, bocaccio, and Pacific ocean perch (POP)) 
managed under the FMP were considered overfished, according to the 
definition of an overfished species given in Amendment 11. The Council 
was then required by the Magnuson-Stevens Act to provide rebuilding 
plans for the three overfished species within one year of that NMFS 
notification. The Council developed draft rebuilding plans for lingcod, 
bocaccio, and POP, during its September and November 1999 meetings, and 
adopted rebuilding plans for all three species at the November 1999 
meeting. Measures necessary to implement the Council-adopted rebuilding 
plans were incorporated into the 2000 annual specifications and 
management measures for Pacific Coast groundfish (65 FR 221, January 4, 
2000). Council staff submitted finalized rebuilding plans to NMFS, and 
NMFS notification of rebuilding plan approval was published on 
September 5, 2000 (65 FR 53646). At its April 2000 meeting, the Council 
approved Amendment 12 to the FMP, which provides a framework process 
for developing future rebuilding plans.
    In January 2000, NMFS notified the Council that two additional 
species, canary rockfish and cowcod, were also considered overfished. 
While protective measures for these two species were incorporated into 
the 2000 management measures, the formal rebuilding plans will be 
developed over the coming year and completed for the 2001 annual 
specifications.
    To incorporate effective rebuilding measures for the five 
overfished species into the 2000 annual specifications and management 
measures, the Council had to create management measures that were 
consistent with, but outside of the scope of the FMP. The Council asked 
NMFS to make emergency regulatory changes concurrent with the 
publication of the 2000 annual specifications so that the rebuilding 
measures could begin in the 2000 fishing season. NMFS incorporated the 
emergency regulatory changes into the 2000 annual specifications and 
management measures. However, emergency regulations are temporary, and 
the Council needs to incorporate flexibility for managing both 
overfished and healthy groundfish stocks in 2001 and beyond into the 
FMP. Amendment 13 broadens the scope of the FMP's framework management 
measures to better equip the Council to meet some of the overfishing 
and bycatch requirements of its FMP during the annual specifications 
and management measures process.
    In addition to amending the FMP for consistency with the Magnuson-
Stevens Act bycatch provisions and updating the framework language of 
the FMP to allow more flexibility in meeting rebuilding goals for 
overfished stocks, Amendment 13 updates the FMP to remove provisions 
for limited entry permits with provisional ``A'' endorsements, ``B'' 
endorsements, and ``designated species B'' endorsements. These 
endorsements were used to smooth the transition from an open access 
system to the limited entry program, but all current limited entry 
permit holders now have ``A'' endorsements, and the three lesser 
endorsements have either expired or are no longer useful. Removing 
these endorsements from the FMP's limited entry provisions and from the 
groundfish regulations is essentially a ``housekeeping'' measure.
    NMFS is proposing this rule to implement sections of Amendment 13 
that would establish an increased utilization program for the at-sea 
whiting fisheries designed to reduce bycatch, revise the regulatory 
provisions for the routine management measures process, and remove 
regulatory references to limited entry permit endorsements other than 
the ``A'' endorsement. This proposed rule is based on recommendations 
of the Council made under the authority of the Pacific Coast Groundfish 
FMP and the Magnuson-Stevens Act. The background and rationale for the 
Council's recommendations are summarized below. Further detail appears 
in the EA/RIR prepared by the Council for Amendment 13.

Background

Standardized Reporting Methodologies

    At 16 U.S.C. 1853(a)(11), the Magnuson-Stevens Act requires that 
fishery management plans ``establish a standardized reporting 
methodology to assess the amount and type of bycatch occurring in the 
fishery, and include conservation and management measures that, to the 
extent practicable and in the following priority -- (A) minimize 
bycatch; and (B) minimize the mortality of bycatch which cannot be 
avoided.''
    There are several standardized reporting methodologies in place in 
the groundfish fishery, including a voluntary observer program and a 
voluntary logbook in the at-sea whiting fisheries, incidental 
groundfish landings reported in a marine mammal directed observer 
program for the California halibut setnet fishery, and dockside 
observer coverage in the shoreside whiting fishery as associated with 
experimental fishing permits (EFPs).

[[Page 69900]]

The Council has recommended making observer coverage mandatory in the 
at-sea whiting fisheries to ensure consistent inseason catch monitoring 
and the fishery's compliance with the Endangered Species Act (ESA). The 
terms and conditions of the section 7 ESA consultation on the Pacific 
Coast groundfish fishery require 100 percent observer coverage to 
account for incidental take of ESA listed salmon in the at-sea whiting 
fisheries.
    In addition to the programs described above, the Council has 
approved a regulatory framework for an on-board observer program for 
all limited entry and open access catcher vessels that take and retain 
or land groundfish at processors in the groundfish fishery off 
Washington, Oregon, and California. If funding for an observer program 
becomes available, the proposed regulations would (1) require vessels 
in the groundfish fishery to carry observers when notified by NMFS or 
its agent, (2) establish notification requirements, and (3) define 
responsibilities for vessels, including provisions to safeguard the 
observers' well-being and provide sampling conditions necessary for an 
observer to follow scientific sampling protocols at sea. These 
regulations were developed just ahead of the Amendment 13 timeline and 
thus, allowed to proceed outside the Amendment 13 process. A proposed 
rule to implement these regulatory changes was published on September 
14, 2000 (65 FR 55495). Amendment 13 would facilitate those proposed 
changes by revising the sections of the FMP that address observer 
coverage to provide observer coverage plan guidelines. No further 
regulatory changes beyond those proposed in the rule published on 
September 14, 2000, would be needed to implement the standardized 
reporting methodologies section of Amendment 13. An observer program 
for the shorebased groundfish fisheries will be implemented as soon as 
funding becomes available or through vessels paying for observers.

Bycatch Reduction Provisions

    Magnuson-Stevens Act National Standard 9 for fishery conservation 
and management, at 16 U.S.C. 1851(a)(9), states that, ``Conservation 
and management measures shall, to the extent practicable, (A) minimize 
bycatch and (B) to the extent bycatch cannot be avoided, minimize the 
mortality of such bycatch.'' According to the Magnuson-Stevens Act, 
``The term `bycatch' means fish which are harvested in a fishery, but 
which are not sold or kept for personal use, and includes economic 
discards and regulatory discards. Such term does not include fish 
released alive under a recreational catch and release fishery 
management program.''
    The EA for Amendment 13 details the Council's past efforts to 
account for and reduce bycatch in the groundfish fisheries. Bycatch 
accounting and reduction measures have included: setting cumulative 
landings limit periods, rather than per-trip limits; reducing optimum 
yield (OY) from acceptable biological catch (ABC) by estimated discard 
rates both pre-season and inseason; reducing harvest available to 
directed non-whiting groundfish fisheries by the observed amounts of 
those stocks taken incidentally in the at-sea whiting fisheries; time/
area closures to protect ESA-listed salmon from interception by the 
whiting fisheries; gear requirements such as mesh size restrictions and 
codend specifications to reduce juvenile groundfish bycatch; and 
setting cumulative landings limits for species complexes to account for 
catch ratios between co-occurring species.
    For 2000, the Council moved beyond its historical practice of 
merely lowering harvest limits for overfished and depleted species (65 
FR 221, January 4, 2000) and introduced new ways of reducing the 
interception of overfished species, Those measures include closed 
periods for lingcod to discourage directed lingcod harvest and 
requiring release of incidentally caught lingcod during closed periods. 
When lingcod are caught by hook-and-line methods, they can often be 
released alive. For the mixed-stock rockfish complexes, the Council 
recommended a landings limit scheme that encourages harvest of 
healthier stocks with higher limits, yet discourages directed and 
incidental harvest of overfished and depleted stocks through lower 
landings limits. In particular, cumulative rockfish landings limits for 
species concentrated on the continental shelf were lowered to move 
fishing effort away from that area, which is the primary habitat of 
several of the overfished rockfish species. The Council also introduced 
further rockfish protection measures, such as differential trip limits 
by gear type, season closures, and the structuring of the season to 
allow targeting of healthy stocks when depleted stock interception is 
less likely.
    All of the new measures taken in 2000 and measures taken in prior 
years to manage for multi-species interactions illustrate that 
regulatory efforts to reduce bycatch tend to have multiple management 
goals -- from protecting overfished and depleted species, to preventing 
overharvest of species of unknown abundance, to acknowledging that 
vessels using different gear types require different harvest 
strategies, and to matching within-year harvest rates to within-year 
abundance and congregation habits of managed species. For a multi-
species fishery, the catching of species other than the targeted 
species is not necessarily a problem. However, the discard of non-
targeted species, whether for economic or regulatory reasons, is a 
problem that the Council has worked to reduce in its ongoing efforts to 
address a wide range of management issues.

Amendment 13 Revisions to FMP, Including Increased Utilization for the 
At-Sea Whiting Fisheries

    Amendment 13 revises the FMP to authorize several measures that are 
expected to reduce bycatch. Amendment 13 provides for increased 
utilization programs for appropriately monitored fisheries, shorter 
fishing seasons with higher cumulative landings limits, permit stacking 
(combining) in the limited entry fleet, catch allocation to or gear 
flexibility for gear types with lower bycatch rates, re-examining/
improving species-to-species landings limit ratios, and time/area 
closures. Several of these measures would require further development 
before implementation. For example, the Council plans to develop and 
analyze a fixed gear permit stacking program this autumn, which could 
be implemented in spring 2001. A management measure that will be 
implemented by Amendment 13 would be the introduction of an increased 
utilization program for the at-sea whiting fisheries.
    The at-sea processing component of the Pacific whiting fishery 
consists of catcher/processors, motherships (vessels that receive and 
process fish at sea but do not catch fish), and catcher vessels that 
deliver the catch to motherships. Each at-sea processing vessel in the 
whiting fishery has carried at least one NMFS-trained observer since 
the beginning of operations in the whiting fishery in the early 1990's. 
In recent years, the catcher/processors and one of the motherships have 
carried two observers. Catcher/processors and catcher vessels 
delivering to motherships are subject to the same groundfish landings 
limits as the rest of the limited entry fleet. For species with 
landings limits, motherships are allowed to retain no more than the 
landings limit amount from each delivering catcher vessel.
    Incidental catch rates in the offshore whiting fishery are 
generally low (less than 5 percent of total catch of groundfish), but 
the magnitude of the whiting fishery is so large that the

[[Page 69901]]

tonnage of incidental catch (particularly of yellowtail and widow 
rockfish) may be considerable. In order to comply with landings limit 
regulations, at-sea processors may need to discard substantial amounts 
of incidental species after a landing limit amount is reached.
    At-sea whiting processors do not offload their catch as frequently 
as shore-based vessels. A catcher/processor or mothership may operate 
during a period that spans several cumulative landings limit periods 
without offloading. These at-sea processors are not allowed to exceed 
the cumulative limit that applies for the period in which offloading 
occurs, which means that the vessel may not combine the cumulative 
landings limit amounts for more than one period. This puts the at-sea 
processors and catcher vessels delivering to motherships at greater 
risk of exceeding the cumulative limits and can result in greater 
discards at sea than a shore-based vessel subject to the same limits. 
The offshore whiting fishery is not prohibited from retaining 
incidentally caught species within landings limit levels, but they 
generally neither target nor desire these species. Rockfish are spiny, 
get tangled in the nets, and damage the whiting. The offshore whiting 
fleet does not routinely process or sell incidentally caught species, 
and those that are retained are generally made into fish meal. These 
conditions and the desire of industry to minimize regulatory discards, 
along with food bank interest in collecting bycatch for use in hunger 
programs, make the at-sea whiting fleet a viable candidate for a full-
retention management option.
    Under the proposed increased-utilization program, if a catcher/
processor or mothership in the whiting fishery carries more than one 
NMFS-approved observer for 90 percent of the days on the fishing 
grounds during a cumulative trip limit period, then groundfish trip 
limits could be exceeded without penalty for that cumulative trip limit 
period. Because catcher/processors and motherships operate 24 hours a 
day, a single observer generally cannot monitor all of a ship's 
catching or processing activities.
    In this program, all species would be made available for sampling 
by the observers before sorting. Any trip limit overage could not enter 
or otherwise compete in normal markets for that species, and overages 
would either be (1) converted to meal, mince, or oil products, which 
could then be sold or (2) donated to an approved food bank distributor. 
This option would not apply to prohibited species (i.e., salmon, 
Pacific halibut, Dungeness crab). If a vessel were to choose to deliver 
to a food bank distributor, provisions would be made such that state or 
Federal enforcement representatives would have the opportunity to 
monitor any such offloading. The vessel could not receive compensation 
or otherwise benefit from any overage amounts unless the overage were 
converted to meal, mince or oil products.
    The number of observers required for a vessel to participate in the 
overage program would be evaluated periodically, and changes would 
generally be announced concurrent with the annual specifications and 
management measures and, at least, prior to the start of the fishery. 
In its first year, this provision would apply to an at-sea processor 
that carries at least two observers. In the future, a higher level of 
observer coverage might be needed on some high-capacity vessels. The 
number of days on the fishing grounds would be determined from 
information routinely submitted by the observer aboard the vessel. A 
vessel would not be obliged to operate under this program. Some at-sea 
processing vessels could choose to continue to carry only one observer, 
the minimum amount recommended by the Council, in which case current 
trip limits would continue to apply for the rest of the limited entry 
fleet.
    To the extent that vessels choose to participate in this program, 
this full-retention option would eliminate regulatory discards in the 
offshore whiting fishery, give offshore fishery participants an 
incentive to carry more than one observer (if they are not already 
required to do so), and improve catch data. Further, this program could 
provide fish for food banks, and the processed incidental catch would 
not compete in or affect pricing in traditional markets for food fish.

Revisions to Annual Management Measures Framework to Allow Flexibility 
for Protecting Overfished and Depleted Species

    In the FMP, administrative processes for groundfish management are 
tiered, with some regulatory changes requiring at least two Council 
meetings and a regulatory amendment and other regulatory changes 
requiring discussion at a single meeting followed by publication in the 
Federal Register. Some changes may also be made through an abbreviated 
rulemaking process, which allows the Council to take certain actions 
needing swift implementation by discussing those actions with the 
public and with its advisory entities over two Council meetings, with 
the results recommended for publication by NMFS in the Federal 
Register.
    Each year at its September and November meetings, the Council uses 
the abbreviated rulemaking process to develop its recommendations for 
groundfish specifications and management measures for the following 
year. NMFS evaluates and publishes the Council's recommendations as the 
``annual specifications and management measures'' in a Federal Register 
document each January. Annual specifications establish ABCs, OYs, and 
harvest guidelines for managed species. Management measures are the 
specific landings limits, size limits, and time/area closures that are 
set in place for one calendar year. As the fishing year progresses, the 
Council tracks harvest rates for each sector of the commercial fishery, 
and may recommend adjusting management measures to either allow more 
access to, or to restrict harvest of, a particular species or species 
group. For the recreational fisheries, the Council sets aside a portion 
of the available harvest of recreationally targeted species and sets 
recreational fishery management provisions in place at the beginning of 
the year. Recreational fishery management measures may also be adjusted 
inseason.
    While existing procedures allow the Council to publish annual 
specifications and management measures through a two-meeting process 
and a single Federal Register document, adding to the list of measures 
that are considered ``routine'' requires a longer process of 
consideration and development for each new management measure. 
Management measures are designated as routine through the Federal 
rulemaking process, which requires two or more Council meetings to 
develop and analyze proposed routine management measures.
    As stated in the summary section, there were several groundfish 
management measures introduced in 2000 that had not previously been 
designated as ``routine,'' but that were specifically crafted to 
provide protection for overfished and depleted stocks while still 
allowing the harvest of healthy stocks. Also, proposed new recreational 
measures, particularly for California fisheries, were outside the 
routine management measures. The Council also wished to prohibit 
commercial lingcod landings during the lingcod spawning and nesting 
season, as well as to provide differential trip limits for different 
commercial gear types, additional proposals that were outside the 
routine management measures. NMFS implemented the new measures

[[Page 69902]]

for the 2000 fishing season via a Magnuson-Stevens Act emergency rule 
to ensure protection for overfished and depleted stocks, while allowing 
access to healthy stocks.
    For 2001 and beyond, the Council wanted to have the flexibility to 
craft new measures through a two-meeting process to protect overfished 
and depleted species without having to implement those measures via a 
Magnuson-Stevens Act emergency rule. Amendment 13 would revise the FMP 
to allow increased flexibility for stock protection, and this proposed 
rule would amend the groundfish regulatory framework for routine 
management measures to reflect that flexibility. For commercial 
fisheries, the list of routine management measures would be amended to 
include, in cases where protection of an overfished or depleted stock 
is required, cumulative landings limits that may be different based on 
type of gear used and closed seasons for any groundfish species. For 
recreational fisheries, the list of routine management measures would 
be amended to include bag limits, size limits, time/area closures, boat 
limits, hook limits, and dressing requirements.
    Under Amendment 13, the first time any new measure is used (e.g., 
first time for a size limit, first time for limits on a particular 
species, first time for a closed season,), the Council's two-meeting 
process will be used. Once adopted as ``routine,'' the new measure 
could be adjusted during the year. Each year, the Council would publish 
in its Stock Assessment and Fishery Evaluation document an updated list 
of management measures that have been designated as routine through the 
two-meeting process; the list of routine measures will no longer be 
included in the groundfish regulations.

Eliminating Limited Entry Permit Endorsements Other Than The ``A'' 
Endorsement

    In 1991, the Council adopted Amendment 6 to the FMP to establish a 
limited entry permit program for the Pacific coast groundfish fishery. 
In order to smooth the transition from an entirely open access fishery 
to the restrictions of limited entry, the Council recommended the 
creation of four different permit endorsements to provide different 
levels of fishery access. Only the ``A'' endorsement is in use today, 
All 499 current limited entry permits have ``A'' endorsements. ``A'' 
endorsements were originally intended for those vessel owners with a 
significant level of historical participation in, and dependence on, 
the fishery during a ``window period'' from 1984 through 1988. With 
Amendment 13, the Council has recommended removing the other three 
endorsements, as they are outdated and/or unused. In addition to the 
``A'' endorsement, limited entry permit endorsements include the 
provisional ``A'' endorsement, the ``B'' endorsement, and the 
``designated species B'' endorsement.
    Provisional ``A'' endorsements were initially developed for vessel 
owners who had purchased a vessel part way through the window period or 
who had a vessel under construction or conversion during the window 
period. The provisional ``A'' endorsement requires that, for the first 
three years after the new vessel purchase or after completion of the 
vessel upgrade, vessel owners meet minimum groundfish landings 
requirements. If the landings requirements were met for all three 
years, the provisional ``A'' endorsement could be converted to an ``A'' 
endorsement. When the limited entry program went into effect, three 
vessels qualified for and were issued provisional ``A'' endorsements. 
All three vessels met the annualized landing requirements and were 
issued ``A'' endorsements by 1997. NMFS has received no further 
applications for provisional ``A'' endorsed limited entry permits.
    Provisional ``A'' endorsements have also been available to owners 
of vessels that landed sufficient groundfish during the window period, 
but that used a gear type that has been subsequently prohibited by a 
state (Washington, Oregon, or California) or the Secretary of Commerce. 
Under Amendment 13, if a state or the Secretary of Commerce bans a 
particular gear at some future time, provisional ``A'' endorsements 
would no longer be available to the affected vessels. NMFS expects that 
removing this opportunity will have little or no effect on current 
fishery participants because the limited entry window period is 13 to 
17 years old and the character of the fishery and its participants have 
changed significantly since that period.
    ``B'' endorsements were developed to allow vessel owners who had 
participated in the fishery at a low level during the window period to 
continue in the fishery for a three-year adjustment period before being 
required to have an ``A'' endorsed limited entry permit for 
participation in the limited entry fishery. Vessels qualified for ``B'' 
endorsements with historic landings levels much lower than the minimum 
landing requirements for ``A'' endorsements. Unlike provisional ``A'' 
endorsements, ``B'' endorsements could not be upgraded to ``A'' 
endorsements. Twenty vessels initially qualified for and received ``B'' 
endorsed limited entry permits. In accordance with the FMP, those 
permits and the ``B'' endorsement opportunity expired on December 31, 
1996. Of those vessels initially issued ``B'' endorsements, two are now 
participating in the fishery with ``A'' endorsement permits. The ``B'' 
endorsement is now obsolete.
    ``Designated species B'' endorsements were developed to allow 
domestic harvesters to target species that were considered 
underutilized and harvestable without significant bycatch of other 
species. At the time that the Amendment 6 ``designated species B 
''permit provision was implemented in 1994, three species in the 
groundfish fishery were designated as underutilized (Pacific whiting, 
shortbelly rockfish, and jack mackerel). Under the``designated species 
B'' program, any Pacific whiting, shortbelly rockfish, and jack 
mackerel that would not be used by the limited entry fleet could be 
made available to domestic vessels outside the limited entry fleet by 
providing those vessels with ``designated species B'' endorsed permits.
    Although the ``designated species B'' endorsement program was 
created to allow domestic vessels outside the limited entry fleet to 
participate in underutilized groundfish fisheries, it never benefitted 
the domestic fleet in a manner originally envisioned by the Council. 
First, The three groundfish species that the ``designated species B'' 
permit program was designed to target became either fully utilized 
(Pacific whiting), removed from the list of groundfish species managed 
under the groundfish FMP (jack mackerel), or found to co-occur with 
overfished and depleted rockfish species under the protection of 
rebuilding measures (shortbelly rockfish). Second, NMFS never received 
any requests or applications for ``designated species B'' permits, and 
thus, never issued any such permits.
    Amendment 13 would remove the three outdated and/or unused limited 
entry permit endorsements as essentially a housekeeping measure. This 
proposed rule would revise the groundfish regulations to remove 
specifications for, and references to, these obsolete endorsements. 
Because these endorsements are not longer in use, removing them would 
have neither biological nor socio-economic effects on the environment.

Biological Impacts

    The biological effects of implementing the Amendment 13 increased 
utilization

[[Page 69903]]

program in the at-sea whiting fishery are expected to be positive. This 
program would encourage at-sea whiting vessels to carry more than one 
observer, which would result in improved catch and discard accounting 
in the whiting fisheries. Observer data in the whiting fisheries will 
also be used for a variety of groundfish stock assessments. Increased 
observer coverage would improve both the quality and quantity of data 
derived from the whiting observer program. Over the long-term, these 
data improvement will lead to more informed stock assessments, which 
should result in better fisheries management and a lower chance of 
unforeseen overfishing.
    This proposed rule to implement Amendment 13 would also introduce 
new flexibility into the annual specifications and management measures 
process. This increased flexibility would allow the Council to craft 
new management measures without a regulatory amendment, in cases where 
those measures were needed to protect overfished and depleted stocks 
while allowing access to healthy stocks. Providing new management 
flexibility for protecting overfished and depleted stocks is expected 
to have positive biological effects.

Socio-economic Impacts

    The at-sea whiting increased utilization program would be a 
voluntary program, providing an incentive in the form of modest revenue 
from fish meal, to those vessels that choose to carry more than one 
observer. The revenue generated from selling fish meal from non-whiting 
incidental catch is expected to offset the cost of additional 
observers, making this program essentially revenue neutral for vessels 
that make meal.
    Catcher-processors now voluntarily carry two observers per vessel, 
while motherships generally carry one observer. The cost to at-sea 
processors of carrying an additional observer, at $250 per day for a 
17-day season as occurred in 1999, would be $4,250 per vessel. Training 
and debriefing costs would require approximately $1,250 per vessel for 
the additional individual, bringing the per vessel total to 
approximately $5,500.
    In 1999, the total of retained and discarded non-whiting groundfish 
taken in both the catcher-processor and mothership sectors was 1142 mt, 
94 percent of which was discarded. At this incidental catch level and 
at a product recovery ratio of 0.17 (standard for fish meal from 
groundfish, 50 CFR part 679), approximately 194 mt of fish meal could 
have been produced for sale. Fish meal is usually exported for foreign 
markets, with prices per metric ton varying by importing country. Based 
on total exports, fish meal prices in 1999 averaged about $590 per 
metric ton. Depending on where the fish meal generated by this program 
is sold, 194 mt of fish meal could be expected to generate about 
$114,460 for the fleet. Six catcher-processors and six motherships 
participated in the 1999 whiting fisheries, setting the expected per 
vessel revenue from this program at about $9,540. While observer costs 
per vessel are relatively fixed, revenue generated by this program 
would vary between vessels according to the rates at which they 
intercept non-whiting groundfish. On the whole, however, it appears 
that this program would offset the per vessel cost of carrying an 
additional observer without generating revenues high enough to give at-
sea fleet participants an incentive to target non-whiting groundfish.
    Vessels participating in this program would also have the option of 
donating non-whiting incidental catch to charitable organizations. If a 
vessel were to donate its non-whiting trip limit overages to food banks 
under this program, it would not recover the cost of the additional 
observer needed to participate. Some at-sea processing vessels also may 
not be equipped to process non-whiting groundfish into fillets and 
other useable forms, and food banks may be reluctant to accept 
donations of whole fish. In 1999, 99 percent (by volume) of the total 
groundfish catch of non-tribal motherships and catcher-processors was 
whiting. It may not be efficient for an at-sea processor to reserve on-
board space and time to process 1 percent of its catch. However, 
vessels that participate in a food bank donation program likely have 
reasons other than efficiency for their participation.
    Increased flexibility in the annual management measures process 
will have some economic effect on the fisheries. That effect, however, 
is not measurable until specific management measures are taken. 
Amendment 13 specifies that, any time the Council creates a new 
management measure under the more flexible framework, it will provide 
an assessment of the biological and socio-economic effects of that 
measure. Nonetheless, some qualitative conclusions may be made about 
how this increased flexibility will affect the fisheries.
    For the 2000 fisheries, the Council asked NMFS to take some 
emergency regulatory actions under the Magnuson-Stevens Act in order to 
allow more flexibility in the annual management measures process. In 
general, those emergency measures were needed because the status quo 
framework was not flexible enough for the Council to provide adequate 
protection for overfished and depleted species while also allowing 
fisheries access to healthy stocks. Even with greater flexibility, some 
amounts of healthy stocks cannot be fully harvested because their 
harvest will be constrained by regulations designed to protect co-
occurring overfished species. For example, management measures to 
protect overfished and depleted species were drastic enough in 2000 to 
induce the governors of California, Oregon, and Washington to ask the 
Secretary of Commerce to declare the West Coast groundfish fishery a 
Federal disaster.
    Amendment 13 would build annual management measures flexibility 
into the FMP for the purpose of providing protection to overfished and 
depleted species. This increased flexibility will allow the Council to 
craft management measures that protect stocks through fishery and gear-
specific regulations for both protected species and species that 
associate with protected species. Increased flexibility will also help 
to allow sustainable harvest of healthy stocks. In general, a future of 
more flexible management is expected to be more economically positive 
than under status quo.

Classification

    At this time, NMFS has not determined that Amendment 13, which this 
rule would implement, is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable laws. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period on Amendment 13.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows:
    The primary regulatory change introduced by Amendment 13 would 
be an increased utilization program for the at-sea whiting fishery 
that affects catcher/processors and motherships, which are 
considered small businesses. This would be a voluntary program, 
providing an incentive to vessels that carry more than one observer 
in the form of modest revenue from fish meal. The revenue generated 
from selling fish meal

[[Page 69904]]

made from non-whiting incidental catch would be expected to offset 
the cost of additional observers, making this program essentially 
revenue neutral for vessels that make meal. Because the whiting 
resource has been allocated between three different non-tribal 
sectors (catcher/processors, motherships receiving catcher boat 
deliveries, shorebased processing plants,) providing increased 
flexibility for these large businesses would not be expected to 
place small businesses in the whiting fishery (most catcher boats, 
some shoreside processing plants) at a disadvantage relative to the 
larger businesses.
    The economic effects of increasing flexibility in the annual 
management measures process cannot be quantified until specific 
measures are implemented. However, it is generally expected that 
increasing management flexibility to allow access to healthy fish 
stocks while protecting overfished and depleted stocks would compare 
favorably over the status quo. The status quo alternative would be 
greater reduction in harvest of healthy stocks. When new management 
measures are proposed, these measures would be analyzed pursuant to 
the requirements of the RFA. The Council provides economic analysis 
during its development of annual management measures, and an EA/RIR 
for implementation of those measures. Setting annual management 
measures is a balancing exercise in which the Council meets its 
requirements to protect overfished and depleted species, yet allows 
fishery access to healthy stocks. In general, increasing the 
flexibility in this framework process allows the Council to craft 
management measures that protect fish stocks while mitigating the 
economic effects of that protection.
    Removing specifications for unused limited entry permit 
endorsements from the regulations would have no economic or other 
effect on small businesses. Eliminating these endorsements would 
relieve a minor reporting requirement for limited entry vessels that 
annually reply to the NMFS survey on underutilized species.
    Accordingly, a regulatory flexibility analysis was not prepared.
    This proposed rule clarifies entries for a collection-of-
information requirement subject to the Paperwork Reduction Act (PRA). 
The Product Transfer/Offloading Log has been approved under OMB control 
number 0648-0271 with an estimated response time of 20 minutes. 
Furthermore, this rule would reduce a collection-of-information 
requirement (approved under OMB control number 0648-0203) associated 
with the ``designated species B'' permit endorsement program.
    This proposed rule also contains new collection-of-information 
requirements subject to review and approval by OMB under the PRA. This 
requirement would be for vessels participating in the voluntary 
increased utilization program to notify authorized officers of their 
intent to offload retained overages as a donation to a tax-exempt 
hunger relief agency. This requirement has been submitted to OMB for 
approval. Public reporting burden for this collection of information is 
estimated to average 5 minutes to make a telephone call to NMFS 
enforcement to indicate an intent to offload fish in excess of 
cumulative limits for the purpose of donating that fish to a hunger 
relief organization. This estimate includes the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: whether this proposed 
collection-of-information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility, the accuracy of the burden estimate, ways to 
enhance the quality, utility, and clarity of the information to be 
collected, and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS 
(see ADDRESSES)and to OMB at the Office Information and Regulatory 
Affairs, OMB, Washington, D.C. (Attn: NOAA Desk Officer).
    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall a person be subject to a penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this rule (see 
ADDRESSES).

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: November 9, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

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

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

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

    2. In Sec. 660.302, new definitions for ``Overage'' and ``Tax-
exempt organization'' are added in alphabetical order to read as 
follows:


Sec. 660.302  Definitions.

* * * * *
    Overage refers to the amount of fish harvested by a vessel in 
excess of the applicable trip limit.
* * * * *
    Tax-exempt organization means an organization that received a 
determination letter from the Internal Revenue Service recognizing tax 
exemption under 26 CFR part 1(Secs. 1.501 to 1.640).
* * * * *

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


Sec. 660.321  Specifications and management measures.

* * * * *
    (b) Annual actions. The Pacific Coast Groundfish fishery is managed 
on a calendar year basis. Even though specifications and management 
measures are announced annually, they may apply for more than 1 year. 
In general, management measures are designed to achieve, but not 
exceed, the specifications, particularly optimum yields (harvest 
guidelines and quotas), commercial harvest guidelines and quotas, 
limited entry and open access allocations, or other approved fishery 
allocations.
* * * * *

    4. In Sec. 660.323, paragraph (a)(3)(vi) is added and paragraph (b) 
is revised to read as follows:


Sec. 660.323  Catch restrictions.

    (a) * * *
    (3) * * *
    (vi) Bycatch reduction and full utilization program for at-sea 
processors (optional). If a catcher/processor or mothership in the 
whiting fishery carries more than one NMFS-approved observer for at 
least 90 percent of the fishing days during a cumulative trip limit 
period, then groundfish trip limits may be exceeded without penalty for 
that cumulative trip limit period, if the conditions in paragraph 
(a)(3)(vi)(A) of this section are met. For purposes of this program, 
``fishing day'' means a 24--hour period, from 0001 hours through 2400 
hours, local time, in which fishing

[[Page 69905]]

gear is retrieved or catch is received by the vessel, and will be 
determined from the vessel's observer data, if available. Changes to 
the number of observers required for a vessel to participate in the 
program will be announced prior to the start of the fishery, generally 
concurrent with the annual specifications and management measures. 
Groundfish consumed on board the vessel must be within any applicable 
trip limit and recorded as retained catch in any applicable logbook or 
report.

    Note:  For a mothership, non-whiting groundfish landings are 
limited by the cumulative landings limits of the catcher vessels 
delivering to that mothership.

    (A) Conditions. Conditions for participating in the voluntary full 
utilization program are as follows.
    (1) All catch must be made available to the observers for sampling 
before it is sorted by the crew.
    (2) Any retained catch in excess of cumulative trip limits must 
either be:
    (i) Converted to meal, mince, or oil products, which may then be 
sold; or
    (ii) Donated to a bona fide tax-exempt hunger relief agency 
(including food banks, food bank networks or food bank distributors), 
and the vessel operator must be able to provide a receipt for the 
donation of groundfish landed under this program from a tax-exempt 
hunger relief agency immediately upon the request of an authorized 
officer.
    (3) No processor or catcher vessel may receive compensation or 
otherwise benefit from any amount in excess of a cumulative trip limit 
unless the overage is converted to meal, mince, or oil products. 
Amounts of fish in excess of cumulative trip limits may only be sold as 
meal, mince, or oil products.
    (4) The vessel operator must contact the NMFS enforcement office 
nearest to the place of landing at least 24 hours before landing 
groundfish in excess of cumulative trip limits for distribution to a 
hunger relief agency. Cumulative trip limits and a list of NMFS 
enforcement offices are found on the NMFS, Northwest Region homepage at 
http://www.nwr.noaa.gov.
    (5) If the meal plant on board the whiting processing vessel breaks 
down, then no further overages may be retained for the rest of the 
cumulative trip limit period unless the overage is donated to a hunger 
relief agency.
    (6) Prohibited species may not be retained.
    (7) Donation of fish to a hunger relief agency must be noted in the 
transfer log (Product Transfer/Offloading Log (PTOL)), in the column 
for total value, by entering a value of ``0'' or ``donation,'' followed 
by the name of the hunger relief agency receiving the fish. Any fish or 
fish product that is retained in excess of trip limits under this rule, 
whether donated to a hunger relief agency or converted to meal, must be 
entered separately on the PTOL so that it is distinguishable from fish 
or fish products that are retained under trip limits. The information 
on the Mate's Receipt for any fish or fish product in excess of trip 
limits must be consistent with the information on the PTOL. The Mate's 
Receipt is an official document that states who takes possession of 
offloaded fish, and may be a Bill of Lading, Warehouse Receipt, or 
other official document that tracks the transfer of offloaded fish or 
fish product. The Mate's Receipt and PTOL must be made available for 
inspection upon request of an authorized officer throughout the 
cumulative limit period during which such landings occurred and for 15 
days thereafter.
    (B) [Reserved]
* * * * *
    (b) Routine management measures. In addition to the catch 
restrictions in this section, other catch restrictions that are likely 
to be adjusted on an annual or more frequent basis may be imposed and 
announced by a single notification in the Federal Register if they have 
been designated as routine through the two-meeting process described in 
PCGFMP. Management measures that have been designated as routine will 
be listed annually in the Council's Stock Assessment and Fishery 
Evaluation (SAFE) document.
    (1) Commercial limited entry and open access fisheries-- (i) Trip 
landing and frequency limits, size limits, all gear. Trip landing and 
frequency limits and size limits for species with those limits 
designated as routine may be imposed or adjusted on an annual or more 
frequent basis for the purpose of keeping landings within the harvest 
levels announced by NMFS, and for the other purposes set forth below.
    (A) Trip landing and frequency limits. To extend the fishing 
season; to minimize disruption of traditional fishing and marketing 
patterns; to reduce discards; to discourage target fishing while 
allowing small incidental catches to be landed; to allow small 
fisheries to operate outside the normal season; and, for the open 
access fishery only, to maintain landings at the historical proportions 
during the 1984--88 window period.
    (B) Size limits. To protect juvenile fish; to extend the fishing 
season.
    (ii) Differential trip landing and frequency limits based on gear 
type, closed seasons. Trip landing and frequency limits that differ by 
gear type and closed seasons may be imposed or adjusted on an annual or 
more frequent basis for the purpose of rebuilding and protecting 
overfished or depleted stocks.
    (2) Recreational fisheries-- all gear types. Routine management 
measures for all groundfish species, separately or in any combination, 
include bag limits, size limits, time/area closures, boat limits, hook 
limits, and dressing requirements. All routine management measures on 
recreational fisheries are intended to keep landings within the harvest 
levels announced by NMFS, to rebuild and protect overfished or depleted 
species, and to maintain consistency with state regulations, and for 
the other purposes set forth in this section.

[[Page 69906]]

    (i) Bag limits. To spread the available catch over a large number 
of anglers; to avoid waste.
    (ii) Size limits. To protect juvenile fish; to enhance the quality 
of the recreational fishing experience.
* * * * *

    5. In Sec. 660.333, paragraph (a) is revised, and paragraphs 
(h)(1)(i) and (ii) are removed, and paragraphs (h)(1)(iii) and (iv) are 
redesignated as paragraphs (h)(1)(i) and (ii), respectively, to read as 
follows:


Sec. 660.333  Limited entry fishery--general.

     (a) General. Participation in the limited entry fishery requires 
that the owner of a vessel hold (by ownership or otherwise) a limited 
entry permit affixed with a gear endorsement registered for use with 
that vessel for the gear being fished. A sablefish endorsement is also 
required for a vessel to participate in the regular and/or mop-up 
seasons for the nontrawl, limited entry sablefish fishery, north of 
36 deg. N. lat. There are three types of gear endorsements: trawl, 
longline, and pot (or trap.) More than one type of gear endorsement may 
be affixed to a limited entry permit. While the limited entry fishery 
is open, vessels fishing under limited entry permits may also fish with 
open access gear; except that during a period when the limited entry 
fixed gear sablefish fishery is limited to those vessels with sablefish 
endorsements, a longline or pot (or trap) limited entry permit holder 
without a sablefish endorsement may not fish for sablefish with open 
access gear.
* * * * *


Secs. 660.335 and 660.337   [Amended]

    6. Sections 660.335 and 660.337 are removed and reserved.


Sec. 660.338  [Amended]

    7. In Sec. 660.338, paragraph (b) is removed, and paragraph (c) is 
redesignated as paragraph (b).
[FR Doc. 00-29781 Filed 11-20-00; 8:45 am]
BILLING CODE: 3510-22-S


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