Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Amendment 18, 36506-36515 [E6-10114]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 123 (Tuesday, June 27, 2006)]
[Proposed Rules]
[Pages 36506-36515]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-10114]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.060609159-01; I.D. 060606A]
RIN 0648-AU12


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Amendment 18

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 Amendment 18 to 
the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 
18 is intended to respond to a court order by setting the Pacific 
Fishery Management Council's (Council's) bycatch minimization policies 
and requirements into the FMP. This rule would implement new 
standardized bycatch reporting methodology and bycatch minimization 
requirements for groundfish fisheries off the U.S. West Coast.

DATES: Comments on this proposed rule must be received on or before 
August 8, 2006.

ADDRESSES: Amendment 18 is available on the Council's website at: http/
/www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery Management/
NEPA-Documents/Progammatic-EIS.cfm.
    You may submit comments, identified by I.D. number 060606A by any 
of the following methods:
     E-mail: Amendment18.nwr@noaa.gov. Include the I.D. number 
060606A in the subject line of the message.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 206-526-6736, Attn: Yvonne deReynier.
     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, Attn: Yvonne deReynier, 7600 Sand Point Way NE, Seattle, WA 
98115-0070.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier (Northwest Region, 
NMFS), phone: 206-526-6140; fax: 206-526-6736; and e-mail: 
yvonne.dereynier@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the internet 
at the website of the Office of the Federal Register: 
www.gpoaccess.gov/fr/.
    NMFS is proposing this rule to implement Amendment 18 to the FMP, 
which is intended to set the Council's bycatch minimization polices and 
requirements into the FMP. Amendment 18 is intended to respond to court 
orders in Pacific Marine Conservation Council v. Evans, 200 F.Supp.2d 
1194 (N.D. Calif. 2002) [hereinafter PMCC v. Evans]. The regulations to 
implement Amendment 18 would: require that groundfish fishery 
management measures take into account the co-

[[Page 36507]]

occurrence ratios of overfished species with more abundant target 
stocks; require vessels that participate in the open access groundfish 
fisheries to carry observers if directed by NMFS; authorize the use of 
depth-based closed areas as a routine management measure for protecting 
and rebuilding overfished stocks, preventing the overfishing of any 
groundfish species, minimizing the incidental harvest of any protected 
or prohibited non-groundfish species, controlling effort to extend the 
fishing season, minimizing the disruption of traditional commercial 
fishing and marketing patterns, spreading the available recreational 
catch over a large number of anglers, discouraging target fishing while 
allowing small incidental catches to be landed, and allowing small 
fisheries to operate outside the normal season; and, update the 
boundary definitions of the Klamath and Columbia River Salmon 
Conservation Zones and Eureka nearshore area to use latitude and 
longitude coordinates in a style similar to that of the Groundfish 
Conservation Areas (GCAs). This proposed rule is based on the 
recommendations of the Council, under the authority of the FMP and the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The background and rationale for the Council's 
recommendations are summarized below. Further detail appears in the 
Pacific Coast Groundfish Fishery Bycatch Mitigation EIS (69 FR 57277, 
September 24, 2004; available online at https://www.nwr.noaa.gov/
Groundfish-Halibut/Groundfish-Fishery-Management/NEPA-Documents/
Programmatic-EIS.cfm).

Background

    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.'' 16 U.S.C. 1853(a)(11). 
The Magnuson-Stevens Act defines the term bycatch to mean ``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.'' 16 U.S.C. 1802(2).
    Amendment 13 to the FMP, approved in December 2000, was intended to 
comply with Magnuson-Stevens Act requirements on bycatch monitoring and 
minimization. However, in PMCC v. Evans, the court found that Amendment 
13 did not adequately address the required provisions of the Magnuson-
Stevens Act and the National Environmental Policy Act (NEPA). 
Specifically, the court found that: (1) Amendment 13 failed to 
establish adequate bycatch assessment methodology; (2) NMFS did not 
comply with its duty under the Magnuson-Stevens Act to minimize bycatch 
and bycatch mortality; (3) NMFS did not take a ``hard look'' at the 
environmental consequences of Amendment 13, in violation of NEPA; and 
(4) the Environmental Assessment did not consider a reasonable range of 
alternatives and environmental consequences, in violation of NEPA.
    Following the court's decision and remand order in PMCC v. Evans, 
NMFS completed a final EIS on a bycatch mitigation program for the West 
Coast groundfish fisheries (69 FR 57277, September 24, 2004.) The 
preferred alternative in that final EIS articulates the Council's 
bycatch minimization policies and requirements. Once the bycatch 
minimization program EIS was complete, the Council and NMFS began 
drafting Amendment 18 to bring the preferred alternative from the EIS 
into the groundfish FMP. Amendment 18 to the FMP articulates the 
Council's bycatch minimization approach for the groundfish fisheries 
and provides comprehensive direction for current and future bycatch 
minimization efforts within Pacific Coast groundfish management. 
Amendment 18 largely re-wrote Chapter 6 of the FMP, ``Management 
Measures,'' to focus on bycatch monitoring and minimization.

Groundfish FMP prior to Amendment 18

    Several FMP amendments and numerous Federal regulations subsequent 
to Amendment 13 have dealt in some way with bycatch, although none has 
had bycatch as their only focus. Amendment 14 to the FMP implemented a 
permit stacking program for the limited entry fixed gear sablefish 
fishery (66 FR 41152, August 7, 2001.) Amendment 14 reduced vessel 
participation in the limited entry fixed gear primary sablefish fishery 
by allowing up to three limited entry permits with sablefish 
endorsements to be stacked on a single fixed gear vessel. Reducing the 
number of fishery participants indirectly reduces bycatch by reducing 
the number of vessels potentially responsible for fishing trips and 
discard events.
    Under Amendment 14, vessel owners with stacked permits are eligible 
to harvest the tier amounts of sablefish associated with each of the 
permits registered for use with a vessel (66 FR 41152, August 7, 2001.) 
Landings limits for species other than sablefish are not stackable; 
this means that although the tier stacking program maintains a fairly 
consistent level of sablefish fishing effort, it reduces both the 
number of fishing vessels and the fishing effort on groundfish species 
other than sablefish. Amendment 14 also converted the fishery from a 
brief (<15 days per year) derby fishery to a 7-month annual season. 
Because vessels are no longer fishing in a fast-paced fishery, they 
have fewer incentives to discard non-sablefish catch in favor of 
reserving hold space for the targeted sablefish. Since 2001, the 
limited entry sablefish fleet has consolidated such that of the 164 
sablefish endorsed permits, 155 are registered for use with 72 vessels 
and 9 are not currently registered for use with a particular vessel (as 
of January 2006.) Amendment 14's implementation has reduced the limited 
entry fixed gear sablefish fleet to approximately 50 percent of its 
2001 size.
    In 2003, enactment of Public Law 108-7 provided NMFS with an 
opportunity to reduce participation in the West Coast groundfish 
limited entry trawl fleet. Congress funded a vessel and permit buyback 
program through a $10 million appropriation, plus a $36 million loan to 
the fleet, which is to be paid back through landings taxes. During 
2003, NMFS developed and implemented the buyback program, which removed 
91 vessels and their state and Federal permits from West Coast 
fisheries. Three trawl permits have been subsequently removed from the 
fishery via permit combination. The limited entry trawl fleet is 
currently at 180 permits, down from 274 permits prior to the buyback 
program, a fleet size reduction of 34 percent. Trawl trip limits for 
the remaining vessels in the fleet are higher than they would have been 
under the full-sized fleet; higher limits that are better matched to 
the capacity of participating vessels reduce the frequency of 
regulation-induced discard.
    Amendment 16-1, which dealt primarily with a framework for 
implementing overfished species rebuilding plans, revised the FMP at 
section 6.5.1.2 to read in part, ``The Regional Administrator [of 
NMFS's Northwest Region] will implement an observer program through a 
Council-approved Federal regulatory framework....'' At Sec.  
303(a)(11), the Magnuson-Stevens Act requires that

[[Page 36508]]

fishery management plans ``establish a standardized reporting 
methodology to assess the amount and type of bycatch occurring in the 
fishery....'' The Amendment 16-1 revision to Section 6.5.1.2 was 
intended to comply with the Maguson-Stevens Act requirement for 
inclusion of standardized reporting methodologies in FMPs. NMFS has 
implemented two major rulemakings for placing observers on West Coast 
groundfish vessels, one in 2001 to require at-sea observer coverage in 
the catcher-boat fleet, and a second in 2004 to convert and expand 
observer coverage in the at-sea processor fleet from voluntary to 
mandatory.
    Observers are a uniformly trained group of technicians who collect 
biological data aboard fishing vessels. They are stationed aboard 
vessels to gather independent data about the fish that are taken or 
received by the vessel. Standardized sampling protocol, defined by NMFS 
to incorporate random sampling theory, is intended to provide 
statistically reliable data for fleetwide fishery monitoring. The 
primary duties of an observer include: estimating catch weights; 
determining catch composition; collecting length and weight 
measurements, and doing sex determinations. Data collected by observers 
are compiled for the purpose of estimating overall catches of 
groundfish; estimating incidental catch of species not allowed to be 
retained by these vessels; and for assessing stock condition. Observers 
must meet minimum education and experience requirements and must be 
trained by NMFS to ensure that they properly apply NMFS's sampling 
protocol.
    In April 2001, NMFS published a final rule to implement a mandatory 
observer program for the West Coast groundfish fishery (66 FR 20609; 
April 24, 2001.) NMFS established the West Coast Groundfish Observer 
Program (WCGOP) in 2001 to collect total catch and discard information 
from the groundfish fisheries. Vessels are selected for observer 
coverage under the authority of Federal groundfish observer regulations 
at 50 CFR 660.314 and in accordance with a coverage sampling plan (See: 
https://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm. 
NMFS periodically refines this plan in response to changes in vessel 
numbers and fishing distribution along the coast.
    WCGOP focuses a significant proportion of its sampling effort on 
the limited entry bottom trawl fleet, because the majority of non-
whiting groundfish landings are taken by that sector of the groundfish 
fleet. While many West Coast groundfish species are taken only by trawl 
gear, trawl gear is less selective than other West Coast groundfish 
gears, making the potential for bycatch higher with this gear type. 
During the period January 2004 through April 2005, WCGOP observed 26 
percent of catch landed by the bottom trawl fleet (Observer data 
report, Table 1, https://www.nwfsc.noaa.gov/research/divisions/fram/
observer/datareport/trawl/datareprtsep2005.cfm). This level of coverage 
equals or surpasses observer coverage levels in other observed 
fisheries nationwide and meets statistical sampling requirements to 
monitor and manage the fishery.
    In addition to managing coastwide observer coverage of catcher 
boats, WCGOP also manages observer coverage in the at-sea whiting 
mothership processing and catcher-processor fishery sectors. 
Participants in the at-sea whiting fleet had been carrying observers 
voluntarily since 1991, but NMFS made that coverage mandatory in 2004 
(69 FR 31751, June 6, 2004). Through that rulemaking, NMFS also 
increased observer coverage in the at-sea whiting fleet to 200 percent, 
meaning that each vessel carries two observers. Although the whiting 
fishery is the largest-volume single species West Coast groundfish 
fishery, it has relatively low bycatch rates, making proper observer 
coverage a challenge because such coverage seeks to quantify rare 
events.
    In 2004, Amendments 16-2 and 16-3 implemented overfished species 
rebuilding programs for eight overfished species: bocaccio, canary 
rockfish, cowcod, darkblotched rockfish, lingcod, Pacific ocean perch, 
widow rockfish, and yelloweye rockfish. Rebuilding plans for overfished 
species endorsed the use of GCAs to reduce the incidental catch of 
overfished species in times and areas where they are more likely to 
occur. GCAs are large areas where specific fishing activities are 
prohibited or restricted and are used to reduce directed or incidental 
fishing effort on overfished species. NMFS and the Council had begun 
using closed areas to reduce the incidental catch of overfished species 
in 2001, with the implementation of two Cowcod Conservation Areas 
(CCAs) in the Southern California Bight (66 FR 2338, January 11, 2001.) 
Their implementation led the way to a series of area closures intended 
to reduce the catch of other overfished species. In September 2002, 
NMFS introduced its first large-scale, depth based conservation area, 
the Darkblotched Rockfish Conservation Area. The Darkblotched Rockfish 
Conservation Area extended from the U.S./Canada border to Cape 
Mendocino, CA, between boundary lines approximating the 100 fm (183-m) 
and 250-fm (457-m) depth contours, with trawling prohibited within the 
conservation area. NMFS and the Council expanded the use of depth-based 
area closures beginning in January 2003. This expansion took place at 
the same time that the Council was developing Amendments 16-2 and 16-3, 
which later incorporated the use of closed areas as important tools for 
managing fisheries to stay within overfished species rebuilding OYs.
    The terms ``Rockfish Conservation Areas'' and ``RCAs'' refer to 
gear-specific depth-based closures, most of which stretch along the 
entire length of the U.S. West Coast, bounded by lines approximating 
the depth contours that have been shown to enclose areas of higher 
overfished species abundance. RCAs are gear-specific in order to 
account for the differing effects that different gear types have on 
overfished species. For example, Pacific ocean perch and darkblotched 
rockfish have historically been taken almost exclusively with trawl 
gear, while yelloweye rockfish is more susceptible to hook-and-line 
gear in recreational and commercial fisheries. Managers developed a 
suite of RCAs for trawl gear, non-trawl gear, and recreational 
fisheries to reduce the impacts of different gears on overfished 
species. RCAs and the closed-polygon CCAs and Yelloweye Rockfish 
Conservation Area are implemented in permanent Federal regulations at 
50 CFR 660.390 - 660.394.
    The GCAs reflect the Council's contemporary approach to groundfish 
management, which largely focuses on rebuilding overfished species 
through minimizing total catch of those species. Area closures have 
moved vessels away from many of the traditional rockfish fishing 
grounds, where the longer-lived and slow-maturing rockfish are more 
likely to be found. Fishing fleets have reacted differently to these 
requirements in terms of how and when they fish and the gear that they 
use. Trawlers in the northern portion of the West Coast have turned 
their fishing effort more strongly toward the more abundant and faster-
maturing flatfish species managed within the groundfish FMP.
    The expansion of area closures has also changed fishing behavior in 
other ways. In 2003, trawlers began working with the State of Oregon to 
develop parameters for a trawl net that better targets flatfish while 
excluding rockfish. NMFS issued the State of Oregon an exempted fishing 
permit (EFP) to test rockfish-excluding nets in 2003-2004, and the 
Council developed its 2005-2006 management measures for the

[[Page 36509]]

trawl sector in part based on the results of this EFP. Trawlers 
operating inshore of the Trawl RCA and north of 40[deg]10' N. lat. are 
required by regulation to use selective flatfish trawl gear, which is 
configured to reduce bycatch of rockfish while allowing the nets to 
retain flatfish. Selective flatfish trawl nets have a flattened ovoid 
trawl mouth opening that is notably wider than it is tall, with 
headropes that are recessed from the trawl mouth. This combination of a 
flattened oval shape and a recessed headrope herds flatfish into the 
trawl net while allowing rockfish to slip up and over the headrope 
without entering the net. Selective flatfish trawl gear has been shown 
to have lower rockfish bycatch rates than more traditional trawl net 
configurations. By preventing the non-target species from even entering 
the net, the selective flatfish trawl gear reduces both bycatch and 
bycatch mortality in the trawl fishery.
    At the same time that the Council was developing Amendment 18, it 
was also working on Amendment 19 to the FMP, which designates West 
Coast groundfish essential fish habitat (EFH) and implements measures 
to minimize fishing impacts to EFH. Amendment 19, which NMFS approved 
on March 8, 2006, establishes 51 ecologically important habitat closed 
areas (FMP section 6.8.5,) including a bottom trawl closure for waters 
offshore of the 700-fm (1290-m) depth contour (FMP section 6.8.6) to 
minimize the adverse effects of fishing on West Coast groundfish EFH 
(71 FR 27408, May 11, 2008.) Like the CCAs, the habitat closed areas 
are discrete closed polygons. And, like the RCAs, some of the closed 
areas apply just to bottom trawling, while others apply to all bottom 
contact gear. Although the Amendment 19 closures are not specifically 
intended to prevent bycatch, some or all fishing will be eliminated 
within the habitat closed areas, reducing opportunities to directly or 
incidentally take species found within the habitat closed areas.

Groundfish FMP under Amendment 18

    As mentioned earlier, Amendment 18 significantly revised Chapter 6 
of the FMP, ``Management Measures'' to address the bycatch monitoring 
and minimization requirements of the Magnuson-Stevens Act. At Section 
6.5, Amendment 18 revises the FMP to require the use of a three-part 
bycatch minimization strategy to meet the Magnuson-Stevens Act's 
bycatch related mandates: ``(1) gather data through a standardized 
reporting methodology; (2) use Federal/state/tribal agency partners to 
assess these data through bycatch models that estimate when, where, and 
with which gear types bycatch of varying species occurs; and (3) 
develop management measures that minimize bycatch and bycatch mortality 
to the extent practicable.'' Although NMFS and the Council have been 
using this strategy for several years, Amendment 18 formalizes it 
within the FMP and uses it to institute a comprehensive approach to and 
requirements for bycatch monitoring and minimization.
    In addition to the revisions to Chapter 6, which are discussed 
below, Amendment 18 revises one of the FMP's goals and five of its 
objectives to place a greater emphasis on reducing bycatch as part of 
groundfish fishery management. Amendment 18's changes to the FMP are 
available on the Council's website at: https://www.pcouncil.org/
groundfish/gffmp/gfal8.html.
    Amendment 18 creates a new section 6.4 in the FMP, ``Standardized 
Total Catch Reporting Methodology and Compliance Monitoring Program.'' 
Section 6.4 establishes standard reporting mechanisms that provide the 
Council with total catch estimates and monitoring methods to verify 
vessel compliance with regulations intended to minimize bycatch and 
meet other fishery management goals.
    In the West Coast groundfish fishery, bycatch reporting is included 
as part of total catch (landed catch + discard) reporting. Amendment 18 
expands the obligations of the Council and its collaborating agencies 
to contribute to and improve total catch reporting methodologies for 
West Coast groundfish fisheries. Under Amendment 18, the FMP would: 
retain the requirement that the Regional Administrator implement an 
observer program to collect data used for total catch accounting, 
authorize the use of electronic monitoring equipment (via cameras and 
other devices) as appropriate, require the use of observer data in the 
biennial and inseason fishery management processes, and provide for new 
information on state monitoring programs for recreational fisheries. 
Amendment 18 particularly addresses the need to increase catch data 
collection from vessels that may not target groundfish, but which may 
take groundfish incidentally at section 6.4.1.1, ``All fishing vessels 
operating in this management unit, which includes catcher/processors, 
at-sea processors, and those vessels that directly or incidentally 
harvest groundfish in waters off Washington, Oregon and California may 
be required to accommodate an observer and/or electronic-monitoring 
system for the purpose of collecting scientific data or verifying catch 
and discard used for scientific data collection....''
    Section 6.4 also authorizes the use of electronic monitoring 
programs ``for appropriate sectors of the fishery.'' Since 2004, NMFS 
has been working with the three states, with Oregon taking the lead, on 
an experimental program to test electronic monitoring in the shore-
based whiting sector. Electronic monitoring is an integrated assortment 
of electronic components, usually including video recorders, that can 
be used at-sea to monitor specific fishing behavior at a lower-cost 
than human observers. Electronic monitoring programs do not replace 
observer programs, although they can be used to reduce the cost of 
observer monitoring in some sectors. The Council is scheduled to 
consider at its September and November 2006 meeting whether to convert 
the experimental use of at-sea electronic monitoring in the whiting 
fishery into a longer-term regulatory requirement.
    Section 6.4 also updates the FMP's authorizations for implementing 
a vessel compliance monitoring and reporting system. At the same time 
that NMFS and the Council were developing the bycatch mitigation EIS, 
they were also developing a vessel monitoring system (VMS) program to 
monitor compliance with fishery closed areas. VMS is a tool that allows 
enforcement agents to monitor a vessel's speed, direction, and 
location. VMS transceiver units installed aboard vessels automatically 
determine the vessel's position and transmit that position to a 
processing center via a communication satellite. At the processing 
center, the information is validated and analyzed before being 
disseminated for various purposes, which may include fisheries 
management, surveillance and enforcement. Prior to Amendment 18, the 
FMP had authorized a variety of general reporting requirements, but had 
not linked those requirements to compliance monitoring. Section 6.4.2 
reflects the Council's focus on better linking science, management, and 
enforcement throughout the groundfish management program.
    Amendment 18 adds a new section 6.5, ``Bycatch Mitigation Program'' 
that describes the Council's three-part bycatch strategy, sets 
processes for developing bycatch minimization measures, authorizes the 
use of a variety of regulatory programs to minimize bycatch where 
practicable, and particularly requires the use of several management 
programs and measures. As mentioned earlier, the second part of the 
strategy to address bycatch requirements is ``use Federal/state/tribal

[[Page 36510]]

agency partners to assess these data through bycatch models that 
estimate when, where, and with which gear types varying species 
occur.'' Bycatch models are reviewed in the Council process through the 
Council's Scientific and Statistical Committee. Managing the fishery 
with these bycatch models has focused the Council's overfished species 
rebuilding efforts on the co-occurrence ratios between target species 
and overfished species. In other words, management measures are 
designed to take into account information about the rates at which 
healthy stocks interact with depleted stocks, so that there is less 
fishing effort during times and within areas where healthy stocks are 
more likely to co-occur with depleted stocks.
    WCGOP began collecting non-whiting observer data in August 2001 and 
data on the bottom trawl fishery began entering the management process 
with the 2003 groundfish specifications and management measures. The 
introduction of non-whiting observer data into the management process 
changed and improved NMFS's estimates of species co-occurrence ratios 
within commercial catch. Amendment 18 revises the FMP to require the 
use of co-occurrence ratios in management measures development at 
Section 6.5.3 of the FMP, ``During the development of the biennial 
specifications and management measures, and throughout the year when 
measures are adjusted, the Council will take into account the co-
occurrence rates of target stocks with overfished stocks, and will 
select measures that will minimize, to the extent practicable, 
bycatch.''
    Amendment 18 implements the third part of the FMP's bycatch 
strategy, ``develop management measures that minimize bycatch and 
bycatch mortality to the extent practicable,'' by bringing a variety of 
management measures and requirements into the FMP. Some of these 
measures are specific requirements to be implemented, while others 
articulate the Council's future policy direction on bycatch 
minimization within groundfish management. Section 6.5.1 states, in 
part, ``The Council manages its groundfish fisheries to allow targeting 
on more abundant stocks while constraining the total mortality of 
overfished and precautionary zone stocks. For overfished stocks, 
measures to constrain total mortality are primarily intended to reduce 
bycatch of those stocks....'' Section 6.5.1 requires that the Council 
use catch restrictions (FMP section 6.7,) time and area closures (FMP 
section 6.8,) gear restrictions (FMP section 6.6,) and other measures 
to tailor the catch of more abundant stocks so that incidental catch of 
depleted stocks is avoided. Section 6.5.3 provides implementation 
guidance for these bycatch minimization programs, which are to be 
implemented where practicable: full retention programs, sector-specific 
total catch limit programs, vessel-specific total catch limit programs, 
and providing catch allocations to or gear flexibility for gear types 
with lower bycatch rates.
    A full retention program is ``a regulatory regime that requires 
participants in a particular sector of the fishery to retain either all 
of the fish that they catch or all of some species or species group 
that they catch....Full retention requirements also encourage affected 
fishery participants to tailor their fishing activities so that they 
are less likely to encounter non-target species.'' NMFS's work with the 
states to experiment with electronic monitoring in the shore-based 
whiting fishery is also looking at whether it is practicable to manage 
that fishery as a full retention program.
    A sector-specific total catch limit program is ``one in which a 
fishery sector would have access to a pre-determined amount of a 
groundfish FMU [fishery management unit] species, stock, or stock 
complex that would be allowed to be caught by vessels in that sector. 
Once a total catch limit is attained, all vessels in the sector would 
have to cease fishing until the end of the limit period, unless the 
total catch limit is increased by the transfer of additional limit 
amounts.'' Because the whiting fishery has a more mature observer and 
monitoring program than the non-whiting fisheries, NMFS has been able 
to implement sector-specific bycatch limits for overfished species 
taken incidentally in the Pacific whiting fishery (50 CFR 660.373.) 
Whiting fishery participants have expressed an interest in dividing 
those bycatch limits by sector, so that there are sector-specific 
limits for the shore-based sector, the catcher-processor sector, and 
the mothership sector. Sector-specific limits are not practicable until 
the shore-based retention and monitoring program is more fully 
developed.
    Vessel-specific catch limit programs ``are similar to individual 
vessel quotas as applied to groundfish FMU species, stocks, or stock 
complexes and require more intense monitoring than a sector-specific 
total catch limit program....Under a vessel-specific total catch limit 
program, the participating vessels would be monitored inseason and each 
vessel would be prohibited from fishing once it had achieved its total 
catch limit for a given FMU species, stock or stock complex.'' (FMP at 
6.5.3.2.) The Council is developing alternatives for an individual 
quota (IQ) program for the limited entry trawl fishery. IQs, depending 
on specific requirements, could include vessel-specific catch limits 
for bycatch species. One of the objectives the Council has adopted for 
the design of the program is ``reduce bycatch and discard mortality.'' 
Amendment 18 revises the FMP to specify that individual fishing quota 
programs ``would be established for the purposes of reducing fishery 
capacity, minimizing bycatch, and to meet other goals of the FMP.'' An 
IQ program with specific bycatch limits would be dependent upon a more 
intense level of monitoring than is practicable under the current 
management regime and could be designed using the FMP's guidance on 
vessel-specific total catch limit programs.
    Section 6.5.3.3 allows the allocation of catch or fishing areas to 
gear types with lower bycatch rates. The Council made this principle 
mandatory when, beginning in 2005, it required the use of selective 
flatfish trawl gear for vessels fishing shoreward of the Trawl RCA 
north of 40[deg]10' N. lat. The Council is also implementing this 
principle in using bycatch models that differ by gear type, which in 
turn means that the management measures developed out of the bycatch 
models are gear-specific in addressing target species interactions with 
depleted species.
    Section 6.6 of the FMP addresses ``Gear Definitions and 
Restrictions.'' Amendment 18 primarily updated the FMP with the gear 
regulations that NMFS has implemented through regulations. Amendment 19 
to the FMP, developed on a concurrent time frame, implements 
prohibitions in section 6.6.1.1 against: fishing with bottom trawl gear 
with footrope diameter greater than 8 inches (20.5 cm) shoreward of a 
boundary line approximating the 100-fm (183-m) depth contour, fishing 
with bottom trawl gear with a footrope diameter greater than 19 inches 
(48.6 cm) anywhere in the EEZ, fishing with dredge gear, and fishing 
with beam trawl gear. These measures are specifically intended to 
protect groundfish EFH, although they will also reduce the access that 
some gears have to portions of the EEZ, constraining directed and 
incidental catch by those gears. Amendment 19's trawl footrope 
prohibitions in the FMP are the culmination of longer-term Council 
efforts to restrict trawl gear access to habitat areas where incidental 
catch of sensitive species may occur.

[[Page 36511]]

    Amendment 18 adds section 6.7 to update the FMP's guidance on 
``Catch Restrictions.'' Amendment 18's additions on catch restrictions 
primarily provide further guidance on the FMP's direct catch limiting 
tools: quotas, size limits, total catch limits, prohibited species 
designation, trip limits, and recreational bag limits, boat limits, and 
catch dressing requirements.
    Amendment 18 adds section 6.8, ``Time/Area Closures'' to the FMP, 
including a variety of time/area closures in the FMP that vary by type 
both in their permanency and in the size of area closed, explaining: 
``When the Council sets fishing seasons [Section 6.8.1,] it generally 
uses latitude lines extending from shore to the EEZ boundary to close 
large sections of the EEZ for part of a fishing year to one or more 
fishing sectors. RCAs [at section 6.8.2,] by contrast, are coastwide 
fishing area closures bounded on the east and west by lines connecting 
a series of coordinates approximating a particular depth contour. RCAs 
are gear-specific and their eastern and western boundaries may vary 
during the year. RCAs also may be polygons that are closed to fishing 
for a brief period (less than one year) in order to provide short-term 
protection for the more migratory overfished or other protected 
species. Groundfish fishing areas (GFAs) [at section 6.8.3] are 
enclosed areas of high abundance of a particular species or species 
group and may be used to allow targeting of a more abundant stock 
within that enclosed area. Long-term bycatch mitigation closed areas 
(section 6.8.4) have boundaries that do not vary by season and are not 
usually modified annually or biennially.''
    Since the court's ruling in PMCC v. Evans, NMFS has implemented a 
broad suite of marine area closures intended to reduce incidental catch 
of overfished groundfish species. RCAs have been used as a significant 
tool in rebuilding overfished groundfish species through reducing 
opportunities for incidental cath of those species. RCA boundaries can 
be altered inseason to tailor fishery management measures with the most 
recently available catch or scientific information, to better ensure 
that overfished species OYs are not exceeded.
    When the Council finalized its recommendations on Amendment 18 at 
its November 2005 meeting, it recommended expanding the allowable use 
of depth-based management measures from reducing catch of and 
rebuilding overfished stocks to: ``protect and rebuild overfished 
stocks; extend the fishing season; for the commercial fisheries, to 
minimize disruption of traditional fishing and marketing patterns; to 
reduce discards; for the recreational fisheries, to spread the 
available catch over a large number of anglers; to discourage target 
fishing while allowing small incidental catches to be landed; and to 
allow small fisheries to operate outside the normal season.'' (section 
6.2.1.) This expanded allowable use of depth-based management measures 
makes those measures available for constraining the incidental catch of 
a broad array of species, not just overfished species.
    The wide variety of marine closed areas intended to protect 
overfished species, protected salmon, and groundfish habitat (closures 
implemented via Amendment 19) creates a potentially confusing mixture 
of open and closed areas that apply to various gear types. In order to 
better enforce the closed areas, NMFS introduced a pilot VMS program on 
January 1, 2004 (68 FR 62374, November 4, 2003). The pilot VMS 
regulatory system initially required vessels registered to limited 
entry permits to carry and use VMS units. When it made its 
recommendations that NMFS implement this pilot system, the Council 
stated its intent to expand VMS requirements to cover the open access 
commercial groundfish fisheries and portions of the recreational 
fisheries. Over 2004-2005, the Council developed and considered a 
program to expand VMS requirements to the commercial open access 
fishery. At its November 2005 meeting, the Council made its final 
recommendation to require VMS coverage for all open access vessels 
operating in the EEZ. NMFS is developing a proposed rule to implement 
the Council's VMS expansion recommendations, which the agency plans to 
publish in summer 2006. To recognize the need for VMS as a compliance 
tool for area and/or season closures, the Council recommended including 
an authorization for its use within the FMP via Amendment 18 at section 
6.4.2. Amendment 18 also adds section 6.10, ``Fishery Enforcement and 
Vessel Safety,'' to provide a more clear framework for evaluating the 
enforceability of all regulations implementing the FMP, including those 
related to area closures.

Regulations Implementing Amendment 18

    As discussed above, NMFS and the Council have implemented a variety 
of bycatch minimization regulations since Amendment 13. In addition to 
those measures already in place, the regulations to implement Amendment 
18 would: require that groundfish fishery management measures take into 
account the co-occurrence ratios of overfished species with more 
abundant target stocks; revise Federal observer regulations to 
authorize NMFS to place observers on vessels that participate in the 
open access groundfish fisheries; allow the use of depth-based closed 
areas as a routine management measure for protecting and rebuilding 
overfished stocks, preventing the overfishing of any groundfish 
species, minimizing the incidental harvest of any protected or 
prohibited non-groundfish species, controlling effort to extend the 
fishing season, minimizing the disruption of traditional commercial 
fishing and marketing patterns, spreading the available recreational 
catch over a large number of anglers, discouraging target fishing while 
allowing small incidental catches to be landed, and allowing small 
fisheries to operate outside the normal season; and update the boundary 
definitions of the Klamath and Columbia River Salmon Conservation Zones 
and Eureka nearshore area to use latitude and longitude coordinates in 
a style similar to that of the GCAs.
    This proposed rule would revise Federal regulations at 50 CFR 
660.370 to require species co-occurrence ratios to be taken into 
account during the setting of harvest specifications and management 
measures. This action is intended to implement the FMP's requirement 
under Amendment 18 that bycatch be addressed through modeling 
interactions between target and bycatch species, and the requirement 
that management measures be designed to take into account those modeled 
interactions.
    To implement Amendment 18 and to clarify the agency's authority to 
place observers on open access groundfish vessels, this rule proposes 
to revise observer coverage requirement regulations at Sec.  
660.314(c)(2). Catcher vessels that would be subject to Federal 
observer coverage requirements would include: (A) Any vessel registered 
for use with a Pacific Coast groundfish limited entry permit that 
fishes in state or Federal waters seaward of the baseline from which 
the territorial sea is measured off the States of Washington, Oregon, 
or California (0-200 nm offshore); (B) Any vessel that is used to take 
and retain, possess, or land groundfish in or from the EEZ; (C) Any 
vessel that is required to take a Federal observer by the applicable 
state law. WCGOP is working with the three West Coast states to ensure 
that state law is concurrent with Federal law in permitting Federal 
observer coverage of vessels that take groundfish. This action is 
intended to ensure that WCGOP has

[[Page 36512]]

access not just to vessels targeting groundfish in Federal waters, but 
also to open access vessels participating in fisheries that take and 
retain federally managed groundfish species, even if they are not 
specifically targeting groundfish.
    As mentioned earlier, Amendment 18 expands the use of depth-based 
management measures beyond protecting and rebuilding overfished stocks. 
This proposed rule would revise Federal regulations at 50 CFR 660.370 
so that routine management measures for all fisheries allow depth-based 
management measures to be used: ``to protect and rebuild overfished 
stocks, to prevent the overfishing of any groundfish species by 
minimizing the direct or incidental catch of that species, to minimize 
the incidental harvest of any protected species taken in the groundfish 
fishery, to extend the fishing season; for the commercial fisheries, to 
minimize disruption of traditional fishing and marketing patterns; for 
the recreational fisheries, to spread the available catch over a large 
number of anglers; to discourage target fishing while allowing small 
incidental catches to be landed; and to allow small fisheries to 
operate outside the normal season.'' This measure is intended to allow 
the expanded use of depth-based closed areas both as biennial and 
inseason management measures to protect a more broad variety of species 
than just overfished species.
    NMFS has primarily used depth-based management in the non-whiting 
groundfish fisheries. The whiting fishery has been managed with salmon 
protection zones off the Columbia and Klamath rivers since 1993 (April 
20, 1993, 58 FR 21263.) The whiting fishery is also restricted within 
the Eureka management area (43[deg]00' to 40[deg]30' N. lat., 
approximately Cape Blanco, OR to Cape Mendocino, CA), wherein it is 
subject to more restrictive trip limits shoreward of the 100-fm (183-m) 
depth contour. Both the salmon protection zones and the trip limit 
restrictions within the Eureka management area are intended to reduce 
bycatch of endangered and threatened salmon taken incidental to the 
whiting fishery. NMFS is using this Amendment 18 proposed rule to 
update the boundary designations for the Klamath River and Columbia 
River Salmon Conservation Zones, and to update the Eureka restriction 
zone so that it is bounded by the RCA 100-fm (183-m) boundary line, 
rather than by a bathymetric curve found on a series of NOAA charts. 
Current regulatory language designating the boundaries of these areas 
is not as precise as that used for RCAs and other overfished species 
conservation areas. This proposed rule would revise Federal regulations 
to define the boundaries of the salmon conservation zones within series 
of latitude/longitude coordinates, as has been done for the RCAs and 
other overfished species conservation areas. This proposed rule would 
also revise Federal regulations to refer to the area affected by more 
restrictive trip limits as shoreward of the boundary line approximating 
the 100-fm (183-m) depth contour, as defined for RCAs and other 
management areas with latitude/longitude coordinates at Sec.  660.393. 
These measures are intended to improve the enforceability of 
regulations designed to reduce salmon bycatch in the whiting fishery.

Continuing Council Efforts in Support of Amendment 18

    In a multi-species fishery like the West Coast groundfish fishery, 
developing management measures to minimize bycatch is an ongoing 
effort. When the Council adopted Amendment 18, they discussed next 
steps for bycatch minimization, particularly looking for practical 
near-term actions that could swiftly result in bycatch reduction. In 
addition to the suite of management measures brought into the FMP and 
Federal regulations via Amendment 18, the Council recommended: (1) 
investigating the state and Federal total catch data delivery systems 
with the aim of increasing the frequency with which observer and total 
catch data is made available to the Council and the public, and (2) 
implementing a permitting program for the groundfish open access 
fishery so as to better connect catch with vessels in particular 
geographic areas.
    For the first issue, more timely access to total catch data, the 
Council asked NMFS to begin a dialogue within the Council process by 
reporting to the Council on the process for observer data compilation 
and analysis. The agency's initial sense is that there are several 
steps in the data aggregation process that need to be reviewed for 
efficiency: (1) the delivery of fish ticket and port sampler data to 
the Pacific Fisheries Information Network (PacFIN;) (2) the 
verification of fish ticket data with observer data to ensure that the 
correct fish tickets are matched to the correct observed trips; (3) the 
delivery of finalized trawl logbook data to PacFIN; (4) the analysis of 
observer data and its expansion to the total fleet; (5) the compilation 
of observer data into formats compatible with confidentiality laws and 
the Information Quality Act.
    For the second issue, open access fleet permitting, the Council did 
not specify whether it intended the size of the open access fleet to be 
reduced. When recommending permits for open access fishery 
participants, Council members expressed a desire to have more complete 
data on catch attributable to vessels landing groundfish outside of the 
limited entry fishery. NMFS's draft Environmental Assessment on 
expanding VMS coverage to the open access fishery found that 1,000 - 
1,500 vessels participate in the open access fishery each year. 
Amendment 18 revises the second objective of the FMP to place a higher 
priority on managing harvest capacity so that it is better matched to 
available groundfish resources. NMFS supports the Council's desire to 
permit the open access fleet so as to provide better vessel-specific 
tracking of landings in that sector. However, the agency also supports 
bringing the capacity within the open access fishery into line with the 
resources available to that fleet, and will be urging the Council to 
consider management alternatives to reduce open access fleet size. The 
Council is initially scheduled to consider this issue at its September 
10-15, 2006, meeting in Foster City, CA.
    Beyond these two issues, the Council is considering a variety of 
management programs that include reducing bycatch as management goals: 
additional area closures to protect both overfished species and 
protected salmon as part of the 2007-2008 groundfish harvest 
specifications and management measures; a trawl IQ program intended, in 
part, to minimize discard; a full retention and electronic monitoring 
program for the shorebased whiting fishery; and a groundfish allocation 
EIS that would establish allocations between the trawl and fixed gear 
sectors of the limited entry fleet, and between the commercial and 
recreational fisheries, in order to allow the development and 
consideration of a trawl IQ program, and sector-specific and/or vessel-
specific total catch limit programs.
    Because technology and economic considerations change over time, 
the practicability of effectively using different bycatch minimization 
measures also changes over time. Amendment 18 to the groundfish FMP 
contains measures to both minimize bycatch to the extent practicable at 
this time, and to foster fishery management programs that will expand 
the array of management measures that are practicable in the future. 
Bycatch minimizing management tools that might not now be available to 
manage the fleet may become available in the future. Amendment 18 
provides a

[[Page 36513]]

framework for implementing bycatch minimization measures that are 
impracticable at this time, but which may become practicable in the 
future.

Classification

    At this time, NMFS has not determined whether Amendment 18, 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.
    NMFS prepared a final EIS a bycatch minimization program in the 
Pacific Coast groundfish fisheries. Amendment 18 would implement the 
Council's preferred alternative from that EIS. A notice of availability 
for the final EIS was published on September 24, 2004 (69 FR 57277.) A 
copy of the final EIS is available online at:
https://www.nwr.noaa.gov/groundfish-Halibut/Groundfish-Fishery-
Management/NEPA-Documents/Programmatic-EIS.cfm.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action contains a variety of proposed revisions to Federal 
regulations. With respect to the Regulatory Flexibility Act (RFA), the 
revisions to observer regulations proposed by this action are within 
the scope of the analysis conducted for the initial implementation of 
the observer program: the EA/RIR/IRFA on ``An Observer Program for 
Catcher Vessels in the Pacific Coast Groundfish Fishery''(2000). NMFS 
summarized the Final Regulatory Flexibility Analysis for that action in 
the preamble to the final rule published on April 24, 2001 (66 FR 
20609.) For the remainder of the regulatory actions proposed in this 
rule, NMFS prepared an updated initial regulatory flexibility analysis 
(IRFA) as required by section 603 of the RFA. The IRFA describes the 
economic impact this proposed rule, if adopted, would have on small 
entities. A description of the action, why it is being considered, and 
the legal basis for this action are contained in the preamble to this 
proposed rule. A summary of the analysis follows.
    As discussed earlier in this document, regulations beyond those 
applying to the observer program would: require that groundfish fishery 
management measures take into account the co-occurrence ratios of 
overfished species with more abundant target stocks; allow the use of 
depth-based closed areas as a routine management measure for preventing 
the overfishing of any groundfish species by minimizing the direct or 
incidental catch of that species (in addition to the current use of 
depth-based management measures to protect overfished species;) allow 
the use of depth-based closed areas as a routine management measure for 
minimizing the bycatch of any prohibited or protected species taken 
incidentally in the groundfish fishery, for controlling effort to 
extend the fishing season, for minimizing the disruption of traditional 
fishing seasons and marketing patterns, for allowing the recreational 
catch to be available to the largest number of anglers, for 
discouraging target fishing while allowing small incidental catches to 
be landed, and for allowing small fisheries to operate outside of the 
normal fishing season, and; update the boundary definitions of the 
Klamath and Columbia River Salmon Conservation Zones and Eureka 
nearshore area to use latitude and longitude coordinates in a style 
similar to that of the GCAs.
    Approximately 1,511 vessels participated in the West Coast 
commercial groundfish fisheries in 2003. Of those, about 498 vessels 
were registered to limited entry permits issued for either trawl, 
longline, or pot gear. All but 10-20 of the 1,511 vessels participating 
in the groundfish fisheries are considered small businesses by the 
Small Business Administration. In the 2001 recreational fisheries, 
there were 106 Washington charter vessels engaged in salt water fishing 
outside of Puget Sound, 232 charter vessels active on the Oregon coast, 
and 415 charter vessels active on the California coast. Although some 
charter businesses, particularly those in or near large California 
cities, may not be small businesses, all are assumed to be small 
businesses for purposes of this discussion.
     The regulations that require that groundfish fishery management 
measures take into account the co-occurrence ratios of overfished 
species with more abundant target stocks, allow the use of depth-based 
closed areas as a routine management measure for preventing the 
overfishing of any groundfish species by minimizing the direct or 
incidental catch of that species, and allow the use of depth-based 
closed areas a routine management measure for minimizing the bycatch of 
any prohibited or protected species taken incidentally in the 
groundfish fishery apply to all 1,700 vessels participating in the West 
Coast commercial groundfish fisheries. The regulations that update the 
boundary definitions of the Klamath and Columbia River Salmon 
Conservation Zones and Eureka nearshore area apply to the 40-50 vessels 
that annually participate in the West Coast Pacific whiting fishery.
    NMFS and the Council developed these proposed regulations in order 
to implement Amendment 18, which brings the Council's bycatch 
minimization program into the FMP. As discussed earlier in this 
document, the Council developed Amendment 18 from its preferred 
alternative in a September 2004 final EIS on a bycatch minimization 
program in the West Coast groundfish fisheries. The EIS analyzed seven 
alternatives for a long-term bycatch minimization program: (1) Status 
quo, control bycatch by trip limits that vary by gear, depth, fishing 
area, and season; (2) reduce effort in the fishery to allow for larger 
trip limits; (3) shorten the commercial fishing season to allow for 
larger trip limits; (4) establish sector catch and mortality caps; (5) 
establish an individual quota program for the commercial fishery; (6) 
close large marine areas to fishing, implement more strict gear 
restrictions, establish individual bycatch caps, and; (7) preferred, 
include all current bycatch minimization program elements in the FMP, 
develop and adopt sector-specific caps for overfished and depleted 
groundfish species where practicable; support the future use of 
Individual Fishing Quota programs for appropriate sectors of the 
fishery; improve baseline accounting of bycatch by sector for to better 
meet future bycatch program goals.
    Each of the alternatives analyzed in the EIS was expected to have 
different overall effects on the economy. Because of the length of time 
necessary to complete an EIS of this magnitude, many of the actions 
contemplated in the preferred alternative and elsewhere in the EIS were 
analyzed and implemented via some separate earlier action. For example, 
the large-scale marine area closures off the West Coast known as RCAs 
were first implemented coastwide as part of the 2004 groundfish harvest 
specifications and management measures. The actions contemplated in the 
preferred alternative that have not yet been implemented and which are 
not proposed to be implemented via this rule, such as vessel-specific 
bycatch caps, are not practicable at this time. All of the requirements 
in this action do not increase the costs associated with reporting, 
record-keeping, or other compliance requirements directly. These 
requirements are: (1) groundfish fishery management measures take into 
account the co-occurrence ratios of overfished species with more 
abundant target stocks; (2) the allowance of the use of depth-based 
closed areas a routine management measure for

[[Page 36514]]

preventing the overfishing of any groundfish species by minimizing the 
direct or incidental catch of that species; and 3) the allowance of the 
use of depth-based closed areas as a routine management measure for 
minimizing the bycatch of any prohibited or protected species taken 
incidentally in the groundfish fishery. However, rules based on these 
provisions will, at some future time, result in compliance 
requirements. When this occurs, those management measures will be 
analyzed as part of the applicable rulemaking process. A copy of this 
analysis is available from NMFS (see ADDRESSES).
    NMFS issued Biological Opinions under the Endangered Species Act 
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999, pertaining to the 
effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon 
(Puget Sound, Snake River spring/summer, Snake River fall, upper 
Columbia River spring, lower Columbia River, upper Willamette River, 
Sacramento River winter, Central Valley spring, California coastal), 
coho salmon (Central California coastal, southern Oregon/northern 
California coastal), chum salmon (Hood Canal summer, Columbia River), 
sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle 
and lower Columbia River, Snake River Basin, upper Willamette River, 
central California coast, California Central Valley, south/central 
California, northern California, southern California). These biological 
opinions have concluded that implementation of the FMP for the Pacific 
Coast groundfish fishery was not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.
    NMFS reinitiated a formal ESA section 7 consultation under the ESA 
in 2005 for both the Pacific whiting midwater trawl fishery and the 
groundfish bottom trawl fishery. The December 19, 1999 Biological 
Opinion had defined an 11,000 Chinook incidental take threshold for the 
Pacific whiting fishery. During the 2005 Pacific whiting season, the 
11,000 fish Chinook incidental take threshold was exceeded, triggering 
reinitiation. Also in 2005, new data from the West Coast Groundfish 
Observer Program became available, allowing NMFS to complete an 
analysis of salmon take in the bottom trawl fishery.
    NMFS prepared a Supplemental Biological Opinion dated March 11, 
2006, which addressed salmon take in both the Pacific whiting midwater 
trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental 
Biological Opinion, NMFS concluded that catch rates of salmon in the 
2005 whiting fishery were consistent with expectations considered 
during prior consultations. Chinook bycatch has averaged about 7,300 
over the last 15 years and has only occasionally exceeded the 
reinitiation trigger of 11,000. Since 1999, annual Chinook bycatch has 
averaged about 8,450. The Chinook ESUs most likely affected by the 
whiting fishery has generally improved in status since the 1999 section 
7 consultation. Although these species remain at risk, as indicated by 
their ESA listing, NMFS concluded that the higher observed bycatch in 
2005 does not require a reconsideration of its prior ``no jeopardy'' 
conclusion with respect to the fishery. For the groundfish bottom trawl 
fishery, NMFS concluded that incidental take in the groundfish 
fisheries is within the overall limits articulated in the Incidental 
Take Statement of the 1999 Biological Opinion. The groundfish bottom 
trawl limit from that opinion was 9,000 fish annually. NMFS will 
continue to monitor and collect data to analyze take levels. NMFS also 
reaffirmed its prior determination that implementation of the 
Groundfish FMP is not likely to jeopardize the continued existence of 
any of the affected ESUs.
    There are four groundfish treaty tribes operating off the U.S. West 
Coast: Makah, Quileute, Hoh, and Quinault. Representatives of these 
tribes participate in the Pacific Council process, and were part of the 
development of Amendment 18 to the FMP. Under the Magnuson-Stevens Act 
at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific 
Council must be a representative of an Indian tribe with federally 
recognized fishing rights from the area of the Council's jurisdiction. 
In accordance with E.O. 13175, this proposed rule was developed after 
meaningful consultation and collaboration with the tribal 
representative on the Pacific Council and with the tribal officials 
from the four groundfish treaty tribes affected by this action. NMFS 
consulted and collaborated with tribal officials on this action both 
within the Pacific Council process, and externally to that process.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: June 21, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, 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

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

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

    2. In Sec.  660.314, paragraphs (c)(2), and (f)(1)(v)(B) are 
revised to read as follows:


Sec.  660.314  Groundfish observer program.

* * * * *
    (c) * * *
    (2) Catcher vessels. When NMFS notifies the vessel owner, operator, 
permit holder, or the vessel manager of any requirement to carry an 
observer, the vessel may not be used to fish in the EEZ without 
carrying an observer.
    (i) For the purposes of this section, catcher vessels include all 
of the following vessels:
    (A) Any vessel registered for use with a Pacific Coast groundfish 
limited entry permit that fishes in state or Federal waters seaward of 
the baseline from which the territorial sea is measured off the States 
of Washington, Oregon, or California (0-200 nm offshore).
    (B) Any vessel that is used to take and retain, possess, or land 
groundfish in or from the EEZ.
    (C) Any vessel that is required to take a Federal observer by the 
applicable state law.
    (ii) Notice of departure Basic rule. At least 24 hours (but not 
more than 36 hours) before departing on a fishing trip, a vessel that 
has been notified by NMFS that it is required to carry an observer, or 
that is operating in an active sampling unit, must notify NMFS (or its 
designated agent) of the vessel's intended time of departure. Notice 
will be given in a form to be specified by NMFS.
    (A) Optional notice Weather delays. A vessel that anticipates a 
delayed departure due to weather or sea conditions may advise NMFS of 
the anticipated delay when providing the basic notice described in 
paragraph (c)(2)(i) of this section. If departure is delayed beyond 36 
hours from the time the original notice is given, the vessel must 
provide an additional notice of departure not less than 4 hours prior 
to departure, in order to enable NMFS to place an observer.
    (B) Optional notice Back-to-back fishing trips. A vessel that 
intends to

[[Page 36515]]

make back-to-back fishing trips (i.e., trips with less than 24 hours 
between offloading from one trip and beginning another), may provide 
the basic notice described in paragraph (c)(2)(i)) of this section for 
both trips, prior to making the first trip. A vessel that has given 
such notice is not required to give additional notice of the second 
trip.
    (iii) Cease fishing report. Withing 24 hours of ceasing fishing, 
vessel owners, operators, or managers must notify NMFS or its 
designated agent that fishing has ceased. This requirement applies to 
any vessel that is required to carry an observer, or that is operating 
in a segment of the fleet that NMFS has identified as an active 
sampling unit.
* * * * *
    (f) * * *
    (1) * * *
    (v) * * *
    (B) Annual general endorsements. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
first deployment within any fishing year subsequent to a year in which 
a ce