Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Amendment 16-4; Pacific Coast Salmon Fishery, 78638-78719 [06-9856]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration
• Part V
• Final Rule

[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78638-78719]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9856]



[[Page 78637]]

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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 660



Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures; Amendment 16-4; Pacific Coast Salmon Fishery; 
Final Rule

Federal Register / Vol. 71, No. 250 / Friday, December 29, 2006 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 060824226-6322-02; I.D. 082806B]
RIN 0648-AU57


Magnuson-Stevens Act Provisions; Fisheries off West Coast States; 
Pacific Coast Groundfish Fishery; Biennial Specifications and 
Management Measures; Amendment 16-4; Pacific Coast Salmon Fishery

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

ACTION: Final rule.

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SUMMARY: This final rule implements Amendment 16-4 to the Pacific Coast 
Groundfish Fishery Management Plan (FMP) and sets the 2007-2008 harvest 
specifications and management measures for groundfish taken in the U.S. 
exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and 
California. Amendment 16-4 modifies the FMP to implement revised 
rebuilding plans for seven overfished species: bocaccio, canary 
rockfish, cowcod, darkblotched rockfish, Pacific ocean perch (POP), 
widow rockfish, and yelloweye rockfish. Groundfish harvest 
specifications and management measures for 2007-2008 are intended to: 
achieve but not exceed optimum yields (OYs); prevent overfishing; 
rebuild overfished species; reduce and minimize the bycatch and discard 
of overfished and depleted stocks; provide harvest opportunity for the 
recreational and commercial fishing sectors; and, within the commercial 
fisheries, achieve harvest guidelines and limited entry and open access 
allocations for non-overfished species. Together, Amendment 16-4 and 
the 2007-2008 harvest specifications and management measures are 
intended to rebuild overfished stocks as soon as possible, taking into 
account the status and biology of the stocks, the needs of fishing 
communities, and the interaction of the overfished stocks within the 
marine ecosystem. In addition to the management measures implemented 
specifically for the groundfish fisheries, this rule implements a new 
Yelloweye Rockfish Conservation Area (YRCA) off Washington State, which 
will be closed to commercial salmon troll fishing to reduce incidental 
mortality of yelloweye rockfish in the salmon troll fishery.

DATES: Effective January 1, 2007.

ADDRESSES: Amendment 16-4 is available on the Pacific Fishery 
Management Council's (Council's) website at: https://www.pcouncil.org/
groundfish/gffmp.html.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier (Northwest Region, 
NMFS), phone: 206-526-6129; fax: 206-526-6736 and; e-mail: 
yvonne.dereynier@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    The final rule also is accessible via the Internet at the Office of 
the Federal Register's website at https://www.gpoaccess.gov/fr/
index.html. Background information and documents, including the FEIS, 
are available at the Council's website at https://www.pcouncil.org.

Background

    NMFS published a Notice of Availability for Amendment 16-4 on 
September 1, 2006 (71 FR 25051.) On September 29, 2006, NMFS published 
a proposed rule to implement both Amendment 16-4 and the 2007-2008 
groundfish harvest specifications and management measures (71 FR 
57764.) Both the Notice of Availability and the proposed rule requested 
public comments through October 31, 2006. During the comment period, 
NMFS received two letters, one individualized email, and 1,445 form 
emails of comment, which are addressed later in the preamble to this 
final rule. See the preamble to the proposed rule for additional 
background information on the fishery and on this final rule.
    Groundfish harvest specifications are the amounts of West Coast 
groundfish species or species groups available to be caught in a 
particular year. Harvest specifications include acceptable biological 
catches (ABCs), OYs, and HGs, as well as set-asides of harvestable 
amounts of fish for particular fisheries or particular geographic 
areas. The ABC is a biologically based estimate of the amount of fish 
that may be harvested from the fishery each year without affecting the 
sustainability of the resource. The ABC may be modified with 
precautionary adjustments to account for uncertainty. A stock's OY is 
its target harvest level, and is usually lower than its ABC. Harvest 
specifications for 2007-2008 are provided in Tables 1a through 2c of 
this rulemaking.
    Management measures set in this biennial management process are 
intended to constrain the fisheries so that OYs of healthier groundfish 
stocks are achieved within the constraints of requirements to rebuild 
co-occurring overfished groundfish species. To rebuild overfished 
species, allowable harvest levels of healthy species will only be 
achieved where such harvest will not deter rebuilding of overfished 
stocks.
    Amendment 16-4, which this action implements concurrently with the 
2007-2008 groundfish specifications and management measures, modifies 
the FMP with revised rebuilding plans for the seven overfished 
groundfish species bocaccio, canary rockfish, cowcod, darkblotched 
rockfish, POP, widow rockfish, and yelloweye rockfish consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and Natural Resources Defense Council v. NMFS, 421 F.3d 
872 (9th Cir. 2005) [hereinafter NRDC v. NMFS,] as detailed in the 
preamble to the proposed rule for this action and in response to 
comments received, below.
    After considering all comments received on Amendment 16-4, the 
draft environmental impact statement (DEIS,) and the proposed rule, 
NMFS partially approved Amendment 16-4 on November 30, 2006. NMFS 
approved all of the Council's Amendment 16-4 recommended revisions to 
the FMP except for one recommended for Chapter 4.0, ``Preventing 
Overfishing and Achieving Optimum Yield.'' The Council had recommended 
adding a sentence to the introductory text to that chapter to read, 
``The Council may establish a research reserve for any stock, [sic] 
that is within the ABC but above and separate from the OY for that 
stock.'' This recommendation conflicts with NMFS's National Standard 
Guidelines at 50 CFR 600.310(f)(4)(iii), which state that ``All fishing 
mortality must be counted against OY, including that resulting from 
bycatch, scientific research, and any other fishing activities.'' For 
2007 and 2008, expected scientific research catch has been deducted 
from the OYs of overfished species, although those amounts may be 
adjusted inseason as new information on inseason scientific activities 
becomes available. For species that are not managed via overfished 
species rebuilding plans, scientific research will be deducted from OYs 
inseason, as information on inseason scientific activities becomes 
available.

Comments and Responses

    During the comment period for Amendment 16-4 and the 2007-2008 
harvest specifications and management measures, NMFS received two 
letters of comment and 1,446 emails of comment.

[[Page 78639]]

 One letter was sent by a member of the public who conducts marine 
scientific research for the University of California, Santa Barbara; 
the other letter was sent jointly by three environmental advocacy 
organizations (Natural Resources Defense Council, Oceana, and The Ocean 
Conservancy; hereinafter, ``The Three Organizations.'') Of the 1,446 
emails received from members of the public, one email was original and 
clearly different from all of the other emails. The remaining 1,445 
emails were form emails from members of the public who repeated the 
same title and text in their email messages. Some senders of the form 
email added personalized, but non-substantive, pleas or threats to the 
repeated text. NMFS also received two letters from the Council, 
summarizing discussions it held at its September and November 2006 
meetings on limited refinements to its 2007-2008 groundfish 
specifications and management measures recommendations. These 
recommendations were either based on scientific information received 
after the June 2006 Council meeting, or a correction to a numerical 
mistake. The Council's recommended changes are discussed below in the 
section on Changes from the Proposed Rule. Comments received on the 
proposed rule are addressed here:
    Comment 1: The Three Organizations state that NMFS's legal and 
long-term obligation with an overfished species is to rebuild as 
quickly as possible. They further state that the only thing that the 
court order from Natural Resources Defense Council v. NMFS, 421 F.3d 
872 (9th Cir. 2005) [hereinafter NRDC v. NMFS] allows NMFS to do in 
taking the short-term needs of fishing communities into account is to 
merely avoid disastrous short-term consequences for those communities. 
The Three Organizations provide their interpretation of ``disastrous 
consequences'' for a groundfish fishing community that annual revenue 
reductions from 2005/2006 to 2007/2008 should exceed 60 percent before 
those reductions result in disastrous consequences. They then express 
the belief that a 40 percent reduction in exvessel revenue from 2005 is 
not disastrous enough, and too far from the Court's example of a 100 
percent reduction in revenue.
    Response: NMFS's legal and long-term obligation with overfished 
species is to rebuild those species as quickly as possible, taking into 
account the status and biology of those stocks, the needs of fishing 
communities, and the interactions of those stocks within the marine 
ecosystem. Stating that the obligation is simply to rebuild as quickly 
as possible mis-characterizes the Magnuson-Stevens Act's requirement to 
manage fish stocks so that management measures rebuild those stocks 
while also taking into account the needs of fishing communities that 
depend on those stocks. In NRDC v. NMFS, the court interpreted the 
Magnuson-Stevens Act as showing Congress' intent that overfished 
species be rebuilt as quickly as possible (taking into account the 
status and biology of the fish stocks and the needs of fishing 
communities), but leaving ``some leeway to avoid disastrous short-term 
consequences for fishing communities.'' NMFS and the Council applied 
the court's direction in developing the EIS for this action and 
Amendment 16-4 by first identifying, and then giving careful 
consideration to the short-term needs of fishing communities, 
particularly: the vulnerability of different fishing communities to 
reductions in available harvest; the resilience of different fishing 
communities to reductions in available harvest; the resilience of 
different fishing communities to changes in community groundfish 
fishing revenues; the effects that recent past harvest levels have had 
on fishing communities; and, the need for management flexibility to 
avoid disastrous immediate consequences from inseason management 
measures adjustments.
    The statutory standard requires that NMFS take into account the 
needs of fishing communities. It does not require that there be a 
disaster (however defined) prior to making community adjustments. The 
9th Circuit's use of the term ``disastrous'' was not meant to redefine 
the provisions of 304(e) of the Magnuson-Stevens Act or import 
``disaster'' language from other portions of the Magnuson-Stevens Act 
or other statutes into the 304(e) process. Nevertheless, because the 
comment focuses on the question of whether Amendment 16-4 and the 2007-
2008 groundfish specifications and management measures are ``disastrous 
enough,'' the remainder of this response will address how NMFS and the 
Council considered the issue of taking short-term fishery impacts into 
account along with other relevant considerations, and how the 60 
percent reduction recommended by The Three Organizations fits within 
Federal disaster determinations, which they suggest is appropriate and 
within the agency's considerations under the rebuilding provisions of 
the Magnuson-Stevens Act.
    The two authorities that the Secretary of Commerce (Secretary) can 
use for declaring fisheries-related disasters are the 
Interjurisdictional Fisheries Management Act (IJA) and Section 312(a) 
of the Magnuson-Stevens Act. Neither the IJA nor the Magnuson-Stevens 
Act specifies a requirement that a negative economic impact of at least 
60 percent, as suggested by The Three Organizations, is needed to 
trigger a disaster declaration by the Secretary. (We note that The 
Three Organizations acknowledge that the meaning of disaster in the 
context of Section 312(a) of the Magnuson-Stevens Act is distinct from 
``disastrous economic impacts'' in the context of the 9th Circuit 
decision.) In fact, there are no formal quantitative definitions of 
what is a sufficient level of annual economic impact required for 
declaring a disaster under either Act. NMFS disagrees with The Three 
Organizations' suggested rule of thumb of a 60 percent decline for a 
disaster declaration. Many of the disasters that The Three 
Organizations noted as supporting their 60-percent-decline assumption 
were declared on the basis of hurricanes and red tides, which resulted 
in complete (100 percent) fisheries closures, biasing their 
calculations of averages upward. Over the years, the Secretary's 
disaster declaration decisions have been made case-by-case, based on 
specific facts surrounding the decline of the fishery in question, and 
on the requests for disaster that are typically submitted by governors 
of affected states. The decisions and associated analyses differ with 
respect to the legal authorities underlying the decision (IJA, 
Magnuson-Stevens Act, or both), the nature of the fishery (e.g., 
salmon, groundfish, shrimp, lobster, crab), the cause of the disaster 
(hurricane, red tide, flooding, confluence of long term and short term 
environmental factors such as El Nino's and droughts), duration (multi 
year, single year) and available information. Therefore, The Three 
Organizations' use of a simple average percentage impact obscures large 
differences between widely varying disaster situations and declaration 
decisions.
    A review of past disaster declaration decisions shows that the 
Secretary looks at not only percentage declines in economic activities 
from various short- and long-term benchmarks, but also at absolute 
levels of impact and other factors as well. Typically, the Secretary 
will have before him the recommendations of the governors of affected 
states and any supporting analyses provided by the Governors, a 
biological assessment that shows the

[[Page 78640]]

dimensions of the fishery resource disaster, and an economic assessment 
that shows the existence and extent of the commercial fishery failure. 
These assessments also typically provide long-and short-term trends and 
an economic forecast of immediate and future impacts. In the case of 
the 2000 West Coast Groundfish Disaster Decision, the Secretary had a 
graph similar to that of Figure 2-13 of the DEIS, which shows trends in 
ex-vessel revenues with and without whiting harvested by at-sea 
processors. This figure, updated since 2000, also shows that the 
fishery has been held to below-disaster revenue levels since the 
Secretary's 2000 disaster declaration, despite the increasing biomasses 
of overfished and other groundfish species.
    In referring to the NOAA Decision Memo that underlies the 
Secretary's 2000 West Coast Groundfish Disaster Declaration, The Three 
Organizations state that ``In 2000, landings were projected to fall 
more than 60 percent below their median annual landings for a 1981-1999 
period when a fishery resource disaster was declared.'' This reference 
does not provide the full context of the decision. In discussing the 
fishery resource disaster and associated commercial fishery failure, 
the NOAA memo had the following key paragraphs that show several time-
related perspectives that were considered in the disaster declaration, 
and also supports the characterization of the current fishery as still 
in a disaster situation:
    ``For the year 2000 we are reducing the OYs for groundfish other 
than whiting to a combined level of 34,000 tons which if completely 
harvested will yield the lowest level of landings produced by this 
fishery since the MSFCMA was passed. However, we expect groundfish 
landings to be even lower than this total because we are also 
implementing new management measures to protect and rebuild 
depressed stocks that are within the 83+ species that make up the 
Pacific groundfish fishery. These management measures may result in 
the inability to attain the OY or allocation for some relatively 
healthy co-occurring stocks, particularly bottom-dwelling rockfish 
on the continental shelf, whose harvest is restricted because it may 
result in bycatch of depressed stocks. Consequently, OYs (and their 
associated allocations to harvest groups) may not be completely 
harvested. We cannot estimate how much of the OYs will not be 
harvested. If 20 percent of the combined OYs cannot be harvested 
because of these restrictions, the projected 2000 harvest would be 
27,000 tons---a 25 percent decrease from 1999 levels. Some industry 
projections indicate that possibly 40 percent of the OYs may not be 
harvested because of the gear, trip, and area regulations being 
imposed. For purposes of this analysis we will assume 20 percent of 
the OYs will not be harvested.
    What do these trends say about the degree of the fishery 
resource disaster? Statistically, for the period 1981 through 1999, 
median annual landings and average annual landings are both about 
74,000 tons. (This estimate is not that different from the sum of 
the long term yield for economically important species and estimates 
of recent catches for economically unimportant species.) Since 1993, 
landings have fallen below 70,000 tons with a 20 percent reduction 
in landings between 1997 and 1998, a 14 percent reduction between 
1998 and 1999, and a potential of a 25 percent reduction between 
1999 and 2000. Landings are projected to fall to 27,000 tons in the 
year 2000, more than 60 percent below median annual landings for the 
1981-1999 period. (Emphasis added here, because this is the sentence 
quoted by The Three Organizations in their letter of comment.)
    These trends reflect the general decline in groundfish 
resources, but these trends make it difficult to pinpoint when these 
declines reached a stage where a disaster situation has set in. Is 
the first year of the disaster 1998, 1999, or 2000? Perhaps most 
illustrative of such a situation are the sharp reductions in the OYs 
for the recently declared overfished species lingcod, Pacific ocean 
perch, bocaccio, canary rockfish and cowcod whose OYs are reduced 
from their 1999 OY and catch levels from about 50 percent (bocaccio) 
to about 90 percent for cowcod. It is these reductions and their 
effects on other fisheries that led the Governors to request a 
disaster declaration.
    Based on these sharp declines and the trend in non-whiting 
groundfish landings since 1993, we believe that the fishery is 
currently experiencing a fishery resource disaster which may also 
have occurred in 1999 and probably originated before 1999. Because 
current and future species rebuilding plans involve long-lived 
rockfish that take decades to recover, we expect the fishery 
resource disaster to continue for a number of years. (Emphasis 
added, since this sentence shows that the Agency projected a 
continuing disaster beyond the year 2000.)
    Using 1999 as a benchmark for assessing the amount of the 
commercial fishery failure and assuming that ex-vessel prices in the 
year 2000 are the same as those seen in 1999, the projected 
commercial harvest value for the year 2000 is about $33 million 25 
percent less than actual 1999 revenues of $44 million. 
Alternatively, using an average ex-vessel price based on 1991-1994 
period for both the years 1999 and 2000, leads to projected estimate 
of $26 million for the year 2000 as compared to $35 million estimate 
for 1999. Therefore, the resulting estimates of the commercial 
fishery failure range from $9 million to $11 million. Previous 
estimates have typically ranged from $3 million to $15 million on an 
ex-vessel basis. The $3 million estimate assumed that all the OYs 
would be harvested while the other estimates were based on 
preliminary Council recommended OYs or perhaps had different 
benchmark years. This analysis assumes that 20 percent of the OYs 
will not be harvested as a result of management measures.''
    In their comment letter, The Three Organizations refer to a recent 
Federal Emergency Management Agency (FEMA) decision where a governor's 
disaster request for West Coast salmon was denied under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 
even though there was an 85 percent decrease in ex-vessel revenues 
below the 2001-2005 average.
    For Amendment 16-4 and the 2007-2008 groundfish harvest 
specifications and management measures, in order to provide contextual 
background information, NMFS presented the Council with information on 
how different Federal agencies such as FEMA, the United States 
Department of Agriculture (USDA,) and the Small Business Administration 
(SBA) analyze disasters. For example, the USDA defines severe 
production losses in a county as a reduction countywide of at least 30 
percent, while the SBA will make a declaration of a physical disaster 
when at least three businesses have uninsured losses of 40 percent or 
more of their estimated fair replacement value. Therefore, given that 
different Agencies have different mandates, programs, criteria and 
processes for determining disaster situations, it is reasonable to 
expect situations where one agency like FEMA will deny a request for a 
disaster declaration under the Stafford Act, while another Agency such 
as NOAA will declare one under the Magnuson-Stevens Act or IJA. 
Further, NMFS reiterates, as stated above, that a ``diaster'' 
declaration is not the criterion in developing rebuilding plans under 
section 304(e) of the Magnuson-Stevens Act.
    Comment 2: The Three Organizations state that the DEIS used a one-
year comparison to measure the economic impact of the alternatives, and 
suggest instead that a five-year ex-vessel revenue average from 2001-
2005 would be more statistically appropriate, saying that using such an 
average shows lower impacts from the three Action Alternatives 
considered in the DEIS.
    Response: We disagree from several perspectives. First, the FEIS 
does compare effects of the alternatives on commercial fisheries 
between 2005, status quo management, and the three action alternatives 
(summarized in Tables 7-62a-c, 7-63a-c, and 7-64a-b,) and the central 
recreational analytical tables also show similar comparisons but 
include estimates for 2004 (summarized in Tables 7-65a-b, 7-66a-b, 7-
67a-c, and 7-68a-e.) The analyses within the FEIS are also replete with 
background tables and charts that show historical trends in revenues, 
landings, and other socioeconomic variables allowing the Council and 
NOAA the

[[Page 78641]]

ability to compare these projections to past trends. Second, the use of 
a recent five-year average does not capture the information associated 
with long term trends, which shows that for the past five years the 
fishery has operated at its lowest historical levels, especially when 
whiting is excluded from the analysis. (Whiting is a highly variable 
fishery where much of the whiting is harvested by catcher-processors 
and motherships whose activities are not necessarily linked to a 
coastal community.) Finally, based on these trends, NMFS and the 
Council believe that communities have been operating at groundfish 
revenue levels far below those occurring when the Secretary declared a 
fishery disaster in 2000. Because the fishery has been operating at 
below-disaster levels in recent years, any further significant decrease 
will have additional disastrous effects.
    Comment 3: The Three Organizations state that they believe that 
NRDC v. NMFS requires prioritization of overfished species rebuilding 
unless there are disastrous short-term consequences. They believe that 
the proposed rule impermissibly prioritizes economic interests for both 
yelloweye rockfish management, and for the suite of options implemented 
by this action. They believe that this action appears to prioritize 
preventing adverse short-term economic impacts and even increasing 
short-term revenues over rebuilding as quickly as possible.
    Response: This action is consistent with NMFS's policy of placing 
its highest priority on rebuilding overfished species, and modifying 
harvest levels to accommodate incidental catch of those species only 
where eliminating that incidental catch would have disastrous effects 
on fishing communities. The Three Organizations presented a similar 
comment to the DEIS for this action; the response to that comment is 
excerpted here. The Three Organizations assert that: ``disastrous 
short-term consequences for fishing communities are illustrated by a 
total moratorium on all fishing due to an absolute ban on any bycatch 
of overfished species.'' NMFS disagrees that ``short-term disastrous 
consequences'' can only occur if there is a total ban of fishing for 
overfished species, or in other words, only if OYs are set to zero. We 
also disagree that ``disastrous short term economic consequences'' is 
the legal test under the Magnuson-Stevens Act. Significant consequences 
to fishing communities can occur at OY levels that are so low that 
allowed economic activity levels are insufficient to maintain the basic 
community infrastructure during the time of rebuilding. NMFS provided a 
discussion of the terms ``disaster'' and ``disastrous'' in its response 
to Comment 1, above.
    NMFS also disagrees that the rebuilding plan gives priority to 
economic interests over rebuilding. This action focuses on rebuilding 
overfished species in as short a time as possible, while taking into 
account the status and biology of those species and the needs of 
fishing communities. In taking into account the needs of fishing 
communities, this action recognizes that fishing communities have, for 
a number of years, already seen their economic activities curtailed in 
order to rebuild overfished species. The EIS for this action provides 
information and analyses on individual community impacts and broader 
coastwide fishery impacts of groundfish fishery management focused on 
rebuilding overfished species. The analyses within the EIS also 
identify classes of communities according to attributes of fishery 
dependence, resilience, and vulnerability. In comparing these community 
attributes to amounts of overfished species, target groundfish species 
and other target species (crab, shrimp, etc.) associated with these 
communities, NMFS found that there were few regions on the West Coast 
without a highly dependent or vulnerable groundfish fishing community.
    As stated in FEIS at Section 8.3 (Rationale for Preferred 
Alternative), the key decision evaluated in the EIS for this action is 
the adoption of rebuilding plans for depleted species and adoption of 
associated OYs and management measures for the 2007 08 management 
period. The evaluation of the alternatives considered rebuilding in as 
short a time as possible, while also taking into account both the 
status and biology of overfished stocks and the needs of fishing 
communities. From a strictly biological perspective, rebuilding in a 
time period as short as possible equates to rebuilding in the absence 
of fishing. To address the absence-of- fishing scenario in the EIS, OY 
Alternative 1 provides OYs of 0 mt for all depleted species. This 
absence-of-fishing alternative would cause the least adverse impacts to 
the biological and physical environment and would rebuild the species 
in as quickly as possible. However, it would also have significant 
adverse short-term economic consequences on fishing communities because 
it would result in the complete closure of all groundfish fisheries and 
a range of non-groundfish fisheries, having serious, or, in the words 
of the court ``disastrous consequences'' to fishing communities. In 
contrast, the Council-preferred alternative was developed to fully 
address the requirements of the Magnuson-Stevens Act at section 
304(e)(4)(A) and National Standard 8 (section 301(a)(8).
    The Council preferred alternative for the yelloweye rockfish OY is 
based on a strategy that ``ramps down'' catch levels from current 
amounts in order to give managers and industry time to adapt and 
develop more refined tools for decreasing the catch of yelloweye 
rockfish while allowing some small access to healthier co-occurring 
target species. The ramp-down approach is expected to avoid some 
disastrous short-term economic consequences and still rebuild the stock 
as quickly as possible. An immediate reduction in the yelloweye OY to 
12.6 mt could be expected to result in substantial and adverse economic 
impacts. As detailed in the FEIS and in comments submitted by the Makah 
Tribe, those impacts would be heavily centered on some of the most 
vulnerable communities (rural coastal communities in Oregon and 
Washington); the Council and NMFS concluded that shifting from current 
yelloweye rockfish OY levels of 27 mt to levels of 12.6 mt or less next 
year would significantly impact those fishing communities, including 
Neah Bay, Washington. As shown in the FEIS, and explained in the FEIS 
comment response on yelloweye rockfish management in section 13.2, 
these coastal communities in Oregon and Washington are heavily 
dependent on recreational fisheries, and any further reductions in the 
yelloweye OY would require further restrictions on the recreational 
fisheries, particularly those for halibut and groundfish. Additionally, 
as the Makah Tribe commented to NMFS, coastal tribal communities are 
dependent on the fisheries income from and infrastructure supporting 
non-tribal recreational fishing businesses. This lack of economic 
diversification and resiliency from negative economic impacts make them 
particularly vulnerable to severe groundfish fishery management 
measures.
    Comment 4: The Three Organizations state that they believe that the 
EIS's fishing community vulnerability analysis is defective because it 
analyzes the economic resilience and vulnerability of fishing 
communities, rather than also looking at the potential vulnerability of 
port communities that do not have fishing industries or interests to 
groundfish rebuilding measures. The Three Organizations also believe 
that the vulnerability analysis does not take into account the

[[Page 78642]]

alternative income stream available to fishing communities from fishing 
opportunities for species other than groundfish.
    Response: Taking into consideration The Three Organizations' 
assertions and other comments raised, NMFS continues to conclude that 
the economic analyses used in the FEIS for this action constitute the 
best available science on the socio-economic effects of rebuilding 
overfished groundfish species. NOAA's ``Guidelines for Economic 
Analysis of Fishery Management Actions'' (NOAA Office of Sustainable 
Fisheries 2000) do not prescribe particular methods and do not require 
the use of quantitative analyses. Rather, the Guidelines identify 
analytical elements that should be addressed and identify the scope of 
analysis required under applicable law. Recognizing the fact that there 
may be a lack of data and the complexity associated with developing 
economic models such as dynamic econometric models, the Guidelines 
state that: ``Embodied in these guidelines is the principle that a well 
developed qualitative analysis may be preferable to a poorly specified 
complex analytical model.'' There are no econometric studies available 
for use in addressing the central theme of the EIS: rebuilding 
overfished species in the shortest time possible, taking into account 
the status and biology of the species and the needs of fishing 
communities by considering the impacts of allowing some access to 
healthy fish stocks in order to avoid disastrous consequences to 
fishing communities.
    For purposes of assessing the needs of fishing communities, the 
Council adopted the following general definition at its April 2006 
meeting: ``Fishing Communities need a sustainable fishery that is safe, 
well managed, and profitable, that provides jobs and incomes, that 
contributes to the local social fabric, culture, and image of the 
community, and helps market the community and its services and 
products.''
    As discussed in the proposed rule for this action, the EIS 
describes the socioeconomic environment, provides economic impact 
projections of the alternatives, and classifies fishing communities in 
terms of their ability to withstand short-term negative consequences 
that could result from declines in annual groundfish revenue or 
recreational expenditures. Although the ``needs'' of fishing 
communities cannot be quantified because of the lack of data and 
models, available fisheries and economic demographic information on 
communities can be used to develop indicators of community engagement 
in fisheries, dependence on groundfish, and community resiliency. These 
indicators were combined to classify those communities or associated 
counties as either ``vulnerable'' or ``most vulnerable'' to changes in 
management measures. A community or county is considered ``vulnerable'' 
or ``most vulnerable'' to changes in fishery management measures if in 
comparison to other communities or counties, it is more engaged in 
fishing, more dependent on groundfish, and least resilient to negative 
socioeconomic impacts. As explained in the EIS and in the proposed rule 
for this action, a series of fishery-related indicators (e.g., number 
of fishery permits, number of commercial fishing vessels, number of 
party and charter trips, etc.) were associated with a series of non-
fishery related indicators (e.g., unemployment rates, percent of 
population below the poverty level, population density, etc.). As 
listed in Tables A-4-7 and A-4-8, of Appendix A to the FEIS, 
information on 135 communities and 78 counties was analyzed, of which 
38 cities and 18 counties were identified as commercial and/or 
recreational vulnerable areas. To qualify as a vulnerable area, a 
community or county had to be listed in the top one-third of ranked 
indicator values for at least one engagement or dependency indicator 
and one resiliency indicator. Under stricter ranking requirements, (a 
community had to be ranked in the top one-third of an indicator twice 
under engagement and/or dependence and resilience), 17 cities and 15 
counties qualify as vulnerable. When even stricter requirements were 
applied (a community had to be ranked in the top one-third of an 
indicator three times under engagement and/or dependence and resilience 
variables), four cities and six counties were identified as vulnerable 
and received the label of ``most vulnerable.'' The most vulnerable 
cities are: Garibaldi, OR; Ilwaco, WA; Moss Landing, CA; and Neah Bay, 
WA. The most vulnerable counties are: Coos, OR; Grays Harbor, WA; 
Humboldt, CA; Lincoln, OR; Medocino, CA; and Pacific, WA.
    The analysis developed for this decision is the first of its type 
for analyzing U.S. fishing communities. It borrows heavily from socio-
economic analysis methodologies employed elsewhere, such as the 
methodology the U.S. Forest Service uses to establish ``counties of 
concern'' or what state employment agencies, such as in Oregon, use to 
establish ``distressed'' counties. The Three Organizations incorrectly 
state in their letter that: ``Such methodology guarantees that the 
analysis will find vulnerable areas, whether they exist or not as 
compared with the general population of cities.'' The West Coast 
groundfish community analysis includes major West Coast cities, such as 
Los Angeles, San Francisco, Seattle, and San Diego. (Los Angeles 
County, for example, scores high in areas of commercial fishing and 
recreational fishery engagement and dependency.) If the purpose of this 
comment from The Three Organizations is to suggest that NMFS establish 
some non-fishing community based standard or threshold to be applied to 
fishing communities, a review of available literature indicates that 
there is no such standard. The typical approach of almost every major 
study summarized in the literature review discussed in Appendix A to 
the FEIS was to select indicators, then rank communities or counties, 
and then apply differing levels of ranking requirements to see what 
communities or counties ranked the highest or lowest and could be 
inferred to be the ``most vulnerable,'' ``least resilient,'' or 
whatever socio-economic characteristic the analysts were focusing on. 
The EIS for this action follows this standard methodology, as described 
above, providing the appropriate analysis and background for the 
determining the shortest rebuilding periods possible, while taking into 
account the needs of fishing communities so as to avoid disastrous 
short-term consequences of management to those communities. In doing 
so, the fishing community analysis follows the directives of the 
Magnuson-Stevens Act by showing which communities are the most 
vulnerable, or in other words, in the most need.
    The main factor constraining the ability to improve economic 
modeling of the fishery and its linkages (e.g., time-series regression 
analyses, estimation of resource efficiency and productivity, 
application of non-static models, etc.) with the rest of the economy is 
the absence of annual observations of employment, and cost and earnings 
data for vessels and processors. As acknowledged by The Three 
Organizations, improved modeling requires data from fishermen and 
companies regarding their purchases of capital and labor and the 
selling of fish in addition to demographic information such as age, 
education level and job experience. Such data are not currently 
available. Further, even if such data were available, econometric 
studies, particularly dynamic econometric studies, are not easily 
undertaken as such modeling requires knowledge of

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the fishing industry and fish populations, advanced expertise in 
econometric theory and methodologies, and the ability to translate 
complex relationships into representative and statistically valid 
functions. Currently the groundfish industry cost and earnings profiles 
used within the Fishery Economic Assessment (FEAM) model are based on a 
year 2000 snapshot of the West Coast fishery (The FEAM model is a 
regional impact model that the Council and NMFS use to project the 
amount of income and number of jobs associated with each alternative.) 
Since 2000, among other things, the fishery has seen a significant 
increase in the cost of fuel. The EIS addresses this issue 
qualitatively in its discussion of the results, where appropriate.
    Finally, in their letter of comment, The Three Organizations 
critique other aspects of the socio-economic analysis and assert that 
the input/output modeling is misleading and that analysis based on 
static data is an inferior method when compared with dynamic modeling. 
Citing a 1994 New York Times article addressing spotted owl issues 
where an Oregon community had replaced lost timber jobs with high 
technology jobs, The Three Organizations posit: ``Even if fishing 
activity is reduced, ports could thrive as many extractions industry 
sites have once the extraction slows.'' Although some communities may 
have found a way to rebound from downturns associated with declining 
timber revenues associated with spotted owl protection, many have not. 
In 2005, the Federal government's interagency Regional Ecosystem Office 
(REO) to support the Northwest Forest Plan found that many communities 
that formerly had close association with the timber industry are not 
thriving 10 years following the implementation of that plan (See: 
https://www.fs.fed.us/pnw/publications/gtr649/pnw-gtr649_vol1.pdf.) Two 
key findings by the REO counter the assertion by The Three 
Organizations that fishing communities may thrive even if fishing is 
reduced. The first is that, for communities within five miles of 
federal forest lands, 40 percent had a decrease in socio-economic well-
being (SEWB) between 1990 and 2000, 37 percent had an increase in SEWB, 
and 23 percent showed little change. Our interpretation of this finding 
is that two thirds of the forest communities are no better off or may 
be worse off then they were before spotted owl recovery programs went 
into place. The second key finding is that the Northwest Economic 
Adjustment Initiative, the major program for providing assistance to 
logging communities, was a mixed success since it did not create jobs 
in the quantity and quality of jobs lost. (See ``Northwest Forest Plan, 
the First Ten Years Socio-economic Monitoring Key Results'' by Susan 
Charnley, U.S. Forest Service, PNW Stations (https://www.reo.gov/
monitoring/10yr-report/social-economic/powerpoints.html).
    The Three Organizations also suggest that the vulnerability 
analysis should account for the ability of fishermen to enter other 
fisheries. While there may be minor opportunities to fish for species 
such as halibut, sandbass, and barracuda, almost all West Coast 
fisheries are fully subscribed and many suffer from overcapacity, which 
makes them inappropriate for absorbing any new entrants who might be 
displaced from the groundfish fishery. Adding an indicator to the 
vulnerability analysis to reflect alternative fishing opportunities 
does not seem a useful exercise, given that there are few such 
opportunities available. With respect to the examples of halibut and 
sandbass, California's Master Plan, A Guide for the Development of 
Fishery Management Plans, support NMFS's conclusion that West Coast 
fisheries are either sufficiently or overcapitalized and that 
additional effort in these fisheries is not desirable. (See https://
www.dfg.ca.gov/MRD/masterplan/, especially Chapter 3.) 
Therefore, if groundfish fishermen were to enter or step up effort in 
alternative fisheries, other fishermen would see their production 
decline. Consequently, in terms of the effects of this action on 
communities, there would be no change in the amount of fishing income 
generated.
    Comment 5: The form emails stated that scientists recommended 
lowering catch levels for yelloweye rockfish. Senders of the form 
emails also believe that the Council recommended increasing yelloweye 
rockfish catch limits above levels recommended by scientists. The Three 
Organizations state that the yelloweye rockfish ramp-down rebuilding 
strategy is too liberal and risky given the depressed condition of the 
species. The Three Organizations believe that the yelloweye rockfish OY 
should be lower, and that new yelloweye rockfish management measures 
should be implemented now, prior to conducting research to determine 
what management measures may be effective beyond the current measures 
to close multiple YRCAs, rockfish conservation areas (RCAs,) and 
setting commercial trip limits and recreational bag limits and seasons 
to constrain the catch of species that co-occur with yelloweye 
rockfish. The Three Organizations also state that neither the DEIS nor 
the proposed rule commit to any plan to gather data on additional 
yelloweye rockfish rebuilding measures.
    Response: The 2006 yelloweye rockfish rebuilding analysis had 
calculated that a 12.6 mt yelloweye rockfish OY would be needed to 
achieve an 80 percent probability of rebuilding the stock to its 
BMSY level by 2096 (``BMSY'' means the biomass 
level at which the stock is estimated to be able to produce its maximum 
sustainable yield on a continuing basis; the FMP uses a default proxy 
for groundfish BMSY of B40.) This final rule 
implements a 2007 yelloweye rockfish OY of 23 mt and a 2008 OY of 20 
mt, lowered from the 2006 OY of 27 mt, in an OY ramp-down strategy 
described in the preamble to the proposed rule for this action. 
Yelloweye rockfish OYs in 2009 and 2010 would be further reduced, 
ultimately reaching 13.5 mt in 2011. Beginning in 2011, the yelloweye 
rockfish rebuilding plan would revert to a constant harvest rate of F = 
0.0101 through to the rebuilt date of 2083.5. By contrast, an initial 
2007 OY based on this harvest rate would result in an OY of 12.6 mt and 
a rebuilt date of 2083. The OY ramp-down strategy provides time to 
collect much-needed additional data that could better inform new 
management measures for greater yelloweye rockfish protection, and 
reduces the immediate adverse impacts to fishing communities while 
altering the rebuilding period by less than one year.
    Several management tools are being studied with the intention of 
reducing impacts to yelloweye rockfish. In addition to the NMFS 
continental shelf/slope trawl survey, the states have several new 
research programs already underway or under development for 2007-2008. 
The Washington Department of Fish and Wildlife (WDFW) is conducting 
cooperative research with the International Pacific Halibut Commission 
(IPHC) to enhance the IPHC's annual hook-and-line survey to incorporate 
additional survey stations within un-trawlable habitat areas to collect 
additional information on yelloweye (distribution, abundance, and 
biological samples). WDFW added 25 new survey stations in 2006 and 
plans to continue the enhanced survey in 2007 and beyond, contingent 
upon funding. The Oregon Department of Fish and Wildlife (ODFW) would 
add survey stations off the Oregon coast in 2008, contingent upon 
funding.
    WDFW is also conducting cooperative rockfish habitat video research 
with the

[[Page 78644]]

Olympic Coast National Marine Sanctuary to characterize and map 
distribution of yelloweye and other rockfish habitat. Working with the 
recreational fishing industry, WDFW is collecting recreational vessel 
logbook catch and length data on rockfish that charter vessel anglers 
catch and release. This data collection research, and the cooperative 
IPHC survey could lead to new YRCAs for 2009 and beyond, or to 
modifications to existing closed areas to reflect improved and more 
recent information on yelloweye habitat sites.
    ODFW has been using acoustic telemetry (data-recording fish tags) 
to assess discard survival and movements of yelloweye rockfish. In 
connection with this data collection, ODFW is studying rockfish 
behavior following hook-and-line capture, recompression of air 
bladders, and release. ODFW is also studying recreational gear 
modification to determine whether the height of the baited hooks above 
the ocean floor has an effect on which species are captured by the 
hooks. This last study could result in gear modification requirements 
that would reduce the potential for recreational gear to incidentally 
catch yelloweye rockfish.
    Comment 6: The Three Organizations state that the ramp-down 
rebuilding strategy extends the yelloweye rockfish rebuilding time 38 
years beyond TMIN (the time it would take to rebuild if all 
sources of fishing mortality had been when the rebuilding plan was 
first implemented in 2003). They also note that an OY of 12.6 mt 
extends the yelloweye rockfish rebuilding time 37 years beyond 
TF=0. [NMFS note: the rebuilt date for yelloweye rockfish is 
2084, 36 years beyond TF=0, which is 2048.] They conclude 
that because the rebuilding periods in both of these cases are more 
than 33 years beyond TF=0, those periods are therefore not 
as short as possible in accordance with NRDC v. NMFS. The Three 
Organization then state that the National Environmental Policy Act 
requires NMFS to consider yelloweye rockfish harvest level alternatives 
between 0 and 12 mt, and rebuilding period end dates between 2048 and 
2078, before taking final action.
    Response: In NRDC v. NMFS, the court rejected NMFS's 2002 
darkblotched rockfish rebuilding period, saying that the Magnuson-
Stevens Act direction to rebuild darkblotched rockfish as quickly as 
possible, taking into account the status and biology of the stock and 
the needs of fishing communities, could not be reconciled with a 
rebuilding period ``20 to 33 years longer than the biologically 
shortest possible rebuilding period (and that increases the annual take 
in the meanwhile).'' In response, NMFS notes that there are numerous 
differences between the darkblotched rebuilding plan addressed in NRDC 
v. NMFS, and the yelloweye rebuilding period.
    First, darkblotched rockfish is continental slope species almost 
exclusively taken in slope trawl fisheries, whereas yelloweye rockfish 
is a continental shelf species almost exclusively taken with hook-and-
line gear. The two species have different life histories and habitat 
preferences, different rebuilding trajectories and current levels of 
abundance, and different fishing communities that rely on fishing 
opportunities for groundfish species they co-occur with. The yelloweye 
rockfish OY ramp-down strategy would extend the yelloweye rebuilding 
period for 36 years beyond TF=0. The Three Organizations are incorrect, 
however, in assuming that because 36 years is greater than the 33 years 
the court rejected for darkblotched rockfish, the yelloweye rockfish 
rebuilding period should also be rejected. Such an assumption fails to 
take into account both the status and biology of yelloweye rockfish and 
the needs of fishing communities that depend on yelloweye rockfish.
    NMFS and the Council did analyze a reasonable range of 
alternatives, as required by NEPA, ranging from a zero-harvest 
alternative, 12 mt alternative, a 12.6 mt alternative, and the ramp-
down strategy adopted in Amendment 16-4. Wholesale closures of major 
portions of the groundfish fishery would have been necessary to achieve 
catch levels at or below 12 mt, and these closures would most likely 
have been in regions and communities that are least adaptable and least 
resilient (see response to Comment 3, above). For example, yelloweye 
rockfish catch occurs primarily off the coasts of Washington and 
Oregon. These coastal communities generally have high unemployment 
levels, low average wage levels, little diversification opportunities, 
and are relatively isolated. In other words, these communities have the 
least resilient economies and they would be most affected by management 
strategies designed to achieve reductions in yelloweye impacts. At an 
OY level less than or equal to 12 mt, these communities would lose 
major portions of their recreational and/or commercial fisheries. Given 
that the West Coast commercial groundfish fishery was declared a 
disaster from which it has not recovered, and that achieving a 
yelloweye OY of 12 mt or less would require closing major portions of 
the fishery for the least resilient communities, yelloweye OY levels 
that were less than 12 mt were considered as clearly resulting in 
disastrous consequences for tribal and non-tribal fishing communities.
    Comment 7: The Three Organizations cite Tables 4-5 through 4-7 of 
the Final EIS for the 2007-2008 groundfish harvest specifications and 
management measures, which show that the yelloweye rockfish mortality 
in 2003 was 8.1 mt. They then conclude that this means that the fishing 
industry was able to function at this lower yelloweye harvest level 
without any disaster declaration. The Three Organizations then state 
that yelloweye rockfish rebuilding is lagging behind the current 
Council-adopted schedule, citing a Scientific and Statistical Committee 
report from March 2006. Based on their belief that the yelloweye 
rebuilding rate is lagging behind the current schedule, they state that 
the yelloweye rockfish OY should be lower than current catch levels, 
and conclude that the ramp-down rebuilding strategy does not rebuild 
yelloweye rockfish as quickly as possible.
    Response: Table 4-5 of the FEIS, which provides catch estimates for 
2003 incorrectly does not not include recreational yelloweye rockfish 
catch. The 8.1 mt figure is only for commercial and tribal fisheries. 
Recreational fisheries add another 11 mt to the estimate (based on 
Pacific States Marine Fisheries Commission's Recreational Fisheries 
Information Network estimates available at: https://www.recfin.org/
forms/est.html, as calculated on November 24, 2006.)
    The Three Organizations' assertion that the yelloweye stock is 
rebuilding behind schedule is a misinterpretation of the stock 
assessment. The 2006 stock assessment shows that the yelloweye 
population is rebuilding, but that the population is less resilient 
than thought in previous assessments. An estimation that the yelloweye 
population is less resilient than previously thought means that the new 
stock assessment has new information about the status and biology of 
the stock that indicates that prior assessments were overly optimistic 
about both the stock's productivity and the rate at which it could 
rebuild. Therefore, the old rebuilding schedule is also overly 
optimistic, when taking into account the biology of the yelloweye 
rockfish stock. In response to the new information on yelloweye 
biology, the new yelloweye rebuilding plan would set the OY at 23 mt in 
2007, reduce it to 20 mt in 2008, and then reduce again in 2009 and 
2010, until it is at a level that is approximately one-half of the 2006 
OY of 27 mt. As

[[Page 78645]]

discussed in the preamble to the proposed rule for this action and in 
the response to Comment 5, above, NMFS intends to achieve these 
reductions based on research to be conducted on more precisely designed 
YRCAs.
    Comment 8: The Three Organizations note that the C-shaped and South 
Washington Coast YRCAs prohibit recreational fishing for groundfish and 
halibut, but rely on voluntary avoidance to exclude commercial fishing. 
They believe that a voluntary avoidance system does not provide 
meaningful yelloweye rockfish protection; and, they request that NMFS 
explain its basis for relying on this measure for protecting yelloweye 
rockfish and to make this prohibition mandatory for all fishing.
    Response: As explained in the preamble to the proposed rule for 
this action, and in the preambles to proposed and final rules on past 
actions to implement groundfish specifications and management measures, 
area closures and other fishing restrictions to protect overfished 
species have been designed to best minimize overfished species bycatch 
using the mechanisms most appropriate to the fishery managed. As a 
result, the fishery management regime for recreational fisheries is 
different than that implemented for commercial fisheries. The fishery 
management regimes for trawl and non-trawl commercial fisheries also 
differ, to take into account the operational differences between the 
gear types.
    Yelloweye rockfish are not commonly caught in trawl fisheries; 
therefore, management measures to minimize incidental catch of 
yelloweye focus most strongly on constraining the recreational and non-
trawl commercial fisheries. Off the northern Washington coast, the non-
trawl commercial groundfish fisheries have been prohibited from fishing 
in waters between the shoreline and a boundary line approximating the 
100 fm (183 m) depth contour since January 1, 2003 (See NMFS RCA 
Archives website for RCA boundary history: https://www.nwr.noaa.gov/
Groundfish-Halibut/Groundfish-Fishery-Management/Groundfish-Closed-
Areas/RCA-Archives.cfm.) This closure keeps non-trawl commercial 
groundfish vessels from operating over the continental shelf, reducing 
incidental catch of northern overfished shelf rockfish, such as 
yelloweye and canary rockfish. Adult yelloweye rockfish most commonly 
occur in waters shoreward of the 100 fm (183 m) depth contour. For 
2007-2008, NMFS is implementing an additional YRCA for commercial non-
trawl fisheries, closing a deeper area that has historically been open 
to commercial fishing, but where yelloweye rockfish may be encountered. 
Both the new North Coast Commercial YRCA and the non-trawl RCA overlap 
with the traditional recreational C-shaped YRCA. The Three 
Organizations depict NMFS as relying on a voluntary commercial area 
closure to rebuild yelloweye rockfish; rather, NMFS relies on the 
mandatory measures for commercial and recreational fisheries described 
in this response and implemented via this final rule. A map depicting 
the overlapping closed areas that affect the non-trawl commercial and 
recreational groundfish fisheries is available online at: https://
www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/
Groundfish-Closed-Areas/Index.cfm#CP_JUMP_30276.
    Recreational fishery participants usually work from smaller vessels 
than those used in the commercial fishery, and are less likely to take 
multi-day fishing trips. As a result, most recreational fisheries 
operations occur within the 0-100 fm (0-183 m) closure for the non-
trawl commercial fisheries. If that same area were closed to 
recreational fishing, the recreational fishery in this area would be 
essentially closed, which would have dramatic negative effects on 
northern Washington coastal communities. Some recreational fishing 
trips, particularly the charter operations from more remote Washington 
ports, will venture farther offshore in search of larger-sized Pacific 
halibut, the largest of the West Coast flatfishes. Pacific halibut 
commonly co-occur with yelloweye rockfish. NMFS first implemented a 
recreational fishery closed off northern Washington when the halibut 
Catch Sharing Plan went into effect in 1995. At that time, the intent 
of the closure was to slow the pace of the recreational halibut 
fishery, by closing an area of known high halibut abundance. When 
yelloweye rockfish were declared overfished in 2002, the Council looked 
at the strong co-occurrence of halibut with yelloweye rockfish and 
recommended prohibiting recreational groundfish fishing within that 
same area traditionally closed to halibut fishing. In 2003, NMFS and 
the Council expanded the traditional closed area for recreational 
halibut fisheries to the current C-shaped YRCA (68 FR 10989, March 7, 
2003.) Today, the C-shaped YRCA applies to recreational fisheries for 
both halibut and groundfish, and continues to have the dual role of 
prohibiting recreational fishing where some yelloweye rockfish are 
known to occur, and prohibiting recreational fishing for a species that 
strongly co-occurs with yelloweye, Pacific halibut. Although the 
historic commercial RCA and the new commercial YRCA are more closely 
linked to areas and depths where yelloweye rockfish are thought to 
commonly occur, the C-shaped YRCA is more appropriate for the 
recreational fisheries, with their higher allowable halibut harvest and 
tendency to only operate farther offshore when targeting particular big 
game fish. Future refinements may need to be made to all of the 
species-specific YRCAs, as new information becomes available on 
particular geographic areas favored by yelloweye rockfish.
    Comment 9: The Three Organizations support a complete closure of 
traditional commercial sablefish fishing grounds for vessels that 
homeport off the northern Washington Coast and in Puget Sound. They 
believe that such a closure would protect the sablefish resource and 
would allow NMFS to implement a lower yelloweye rockfish OY than 12.6 
mt and rebuild yelloweye rockfish at a faster rate.
    Response: NMFS does not agree that a complete closure of 
traditional commercial sablefish fishing grounds is necessary or 
appropriate to protect sablefish. The sablefish stock is estimated to 
be at 34 percent of its estimated unfished biomass level, or 
B34. The sablefish OYs for 2007 and 2008, implemented via 
this action, are based on the FMP's harvest policy that species with 
abundance levels within the precautionary zone (between B25 
and B40) have OYs reduced from their ABCs by ever greater 
percentages the closer the stock is estimated to be to B25, 
the overfished threshold. (See FMP at section 4.5.1.) This policy 
protects stocks that are below their BMSY level, acting as a default 
rebuilding policy that both prevents those stocks from dipping below 
the overfished threshold and rebuilds them back to their BMSY 
(B40) levels. If the traditional northern Washington 
sablefish fishing groundfish were closed, the entire sablefish OY would 
still be available to the remaining open areas along the West Coast; 
therefore, closing a particular area to sablefish fishing would have no 
effect on the sablefish resource, other than to intensify sablefish 
fishing effort within the remaining open fishing areas.
    The FEIS for this action estimates at Table 4-18 that 1.1 mt of 
yelloweye rockfish were taken in the 2004 fixed gear (longline and pot) 
sablefish fisheries north of 40[deg]10' N. lat. (approximately Cape 
Mendocino, California,) at a ratio of approximately 8.9 lb (4.04 kg) of 
yelloweye per 1,000 lb (454 kg) of sablefish. [Note: this

[[Page 78646]]

bycatch ratio applies only to sablefish taken with longline gear; pot 
gear is estimated to have zero yelloweye catch.] At Table 7-22, the 
FEIS estimates that the limited entry fixed gear sablefish landings in 
Washington generated approximately $2,753,000 in ex-vessel revenue. 
This is important income for vessels operating from some of the most 
economically groundfish-dependent and vulnerable fishing communities, 
such as Ilwaco and Neah Bay, Washington, and coastal counties, such as 
Pacific and Grays Harbor Counties.
    Comment 10: The Three Organizations believe that the yelloweye 
rockfish OY ramp-down strategy increases the likelihood that old and 
fecund female rockfish will be removed from the population. The Three 
Organizations cite black rockfish papers by Berkeley et al. (2004) and 
by Bobko and Berkeley (2004), and state that they believe that larvae 
born from older rockfish have an increased rate of growth and survival 
than larvae born from younger rockfish, which they believe may affect 
recruitment success and rebuilding. They state that old rockfish are 
critical to the reproductive success of the stock, and that management 
should focus not only on biomass size, but also on increasing the 
proportion of older fish in the population. They then conclude that the 
ramp-down rebuilding strategy should not be adopted because they 
believe that it does not increase the proportion of older fish in the 
yelloweye rockfish population.
    In addition to this specific comment on older female rockfish in 
the yelloweye population, The Three Organizations make a more general 
comment on the benefits of older females within all rockfish species' 
populations. They state that they believe that management measures and 
the determination of OYs must incorporate scientific findings that the 
larvae produced by older rockfish have an increased probability of 
survival over those produced by younger rockfish, that older rockfish 
have greater larval outp