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CFR Citation: 50 CFR Part 660

Docket ID: [Docket No. 021209300-3048-02; I.D. 112502C]

RIN ID: RIN 0648-AQ18

NOTICE: Part II

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Magnuson-Stevens Act Provisions; Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Annual Specifications and Management Measures

DATES: Effective March 1, 2003, until the 2004 annual specifications, unless modified, superseded, or rescinded through a publication in the Federal Register.

DOCUMENT SUMMARY: NMFS issues this final rule to implement the 2003 fishery specifications and management measures for groundfish taken in the U.S. exclusive economic zone (EEZ) and state waters off the coasts of Washington, Oregon, and California. Final specifications include the levels of the acceptable biological catch (ABC) and optimum yields (OYs). Commercial OYs (the total catch OYs reduced by tribal allocations and by amounts expected to be taken in recreational and compensation fisheries) described herein are allocated between the limited entry and open access fisheries. Management measures for 2003 are intended to prevent overfishing, rebuild overfished species, minimize incidental catch and discard of overfished and depleted stocks, provide equitable harvest opportunity for both recreational and commercial sectors, and, within the commercial fisheries, achieve harvest guidelines and limited entry and open access allocations to the extent practicable.

SUMMARY: Commerce Department, National Oceanic and Atmospheric Administration,

SUPPLEMENTAL INFORMATION

This final rule also is accessible via the Internet at the Office of the Federal Register's website at http://www.access.gpo.gov/su_
docs/aces/aces140.htm.
Background information and documents are
available at the NMFS Northwest Region website at http://
www.nwr.noaa.gov/1sustfsh/gdfsh01.htm
and at the Council's website at
www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the Council's website at http://www.pcouncil.org.

/i.p/outbound/www.pcouncil.org.
">www.pcouncil.org.

Background

A proposed rule to implement the 2003 specifications and management measures for Pacific Coast groundfish was published on January 7, 2003 (68 FR 936). NMFS requested public comment on the proposed rule through February 7, 2003. During the comment period on the proposed rule, NMFS received five letters 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 rule.

The Pacific Coast Groundfish Fishery Management Plan (FMP) requires that fishery specifications for groundfish be annually evaluated and revised, as necessary, that OYs be specified for species or species groups in need of particular protection, and that management measures designed to achieve the OYs be published in the Federal Register and made effective by January 1, the beginning of the fishing year. To ensure that new 2003 fishery management measures were effective January 1, 2003, NMFS published an emergency rule announcing final management measures for JanuaryFebruary 2003 (68 FR 908, January 7, 2003). Annual specifications for 2003 and management measures for MarchDecember 2003 were proposed in a separate rule, also published on January 7, 2003.

Specifications and management measures announced in this rule for 2003 are designed to rebuild overfished stocks through constraining direct and incidental mortality, to prevent overfishing, and to achieve as much of the OYs as practicable for more abundant groundfish stocks managed under the FMP.

Comments and Responses

During the comment period for the 2003 specifications and management measures, which ended on February 7, 2003, NMFS received five letters of comment. These letters of comment were received opposing different portions of the rule: two from nongovernmental organizations representing environmental interests, two from an association of seafood processors, and one from the government of Canada.
Comments on Harvest Specifications and Overfished Species Rebuilding

Comment 1: The MagnusonStevens Fishery Conservation and Management Act (MagnusonStevens Act) requires that overfished species be rebuilt within as short a time as possible. For a number of overfished West Coast groundfish species, rebuilding periods have been designated as the maximum time possible without any analysis as to why this time frame is warranted. Further, the Council and NMFS are overdue in preparing formal rebuilding plans (in the form of an FMP, an FMP amendment, or Federal regulations) for the nine overfished groundfish species.

Response: In relevant part, the MagnusonStevens Act requires that rebuilding periods be as short as possible, taking into account the status and biology of the overfished stocks, and the needs of fishing communities, and not exceed ten years except in cases where the biology of the stock requires more time to rebuild (as is true of most of the nine overfished groundfish stocks). Under the National Standard Guidelines that implement the MagnusonStevens Act, the maximum times to rebuild are: 1) for stocks that can be rebuilt within ten years with no fishing, ten years, and 2) for stocks that cannot be rebuilt within ten years with no fishing, the time to rebuild in the absence of fishing, plus one mean generation. In establishing rebuilding periods, the Council and NMFS endeavor to meet the conservation requirements (National Standard 1) while taking into account the needs of fishing communities (National Standard 8).

The proposed rule defined the rebuilding parameters for each species, including: that portion of the stock that has been designated as overfished; the biomass estimate from the most recent assessment; the maximum allowable time to rebuild (TMAX); rebuilding target (TTARGET) years (must have at
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least a 50 percent probability of rebuilding within the specified time); the probability of rebuilding within the maximum permissible time period (PMAX); and the harvest measures that are being adopted to keep the total fishing mortality (typically expressed as the fishing mortality rate) within the specified OYs that will achieve TTARGET. Policy makers only have control over three of these parameters: TTARGET, PMAX and the fishing mortality rate. NMFS disagrees that rebuilding periods have been designated as the maximum time possible. With the exception of bocaccio rockfish (see response to Comment 2 regarding need for a sustainability analysis), there are no TTARGET periods that are at or above TMAX for the overfished rockfish species.

The Council is currently preparing Amendment 16, which establishes the process and standards for rebuilding plans and incorporates rebuilding measures into the FMP. Overfished species are currently managed under interim rebuilding strategies, and it is not expected that the final rebuilding plans will differ substantially in their basic biological parameters, taking into account any changes that would be made as a result of new data on overfished stocks' parameters. Thus, overfished species are not disadvantaged by not having formal rebuilding plans at this time.

Comment 2: NMFS has proposed a 20 mt OY for the badly overfished bocaccio rockfish. This harvest level fails to meet the rebuilding requirements of the MagnusonStevens Act because it would allow only a 50 percent chance of rebuilding bocaccio within 170 years. NMFS admits that this bocaccio harvest level violates its National Standard Guidelines and claims that the Guidelines do not address the bocaccio situation. Although we believe that the National Standard Guidelines themselves violate the MagnusonStevens Act, NMFS cannot simply dismiss those Guidelines.

Response: In the revised bocaccio rebuilding analysis prepared following the June 2002 Council meeting, the bocaccio stock failed to have a 50 percent probability of rebuilding by TMAX, even in the absence of fishing. NMFS subsequently prepared a sustainability analysis for bocaccio rockfish to determine the fishing rates that would lead to no further decline in abundance over a specified time frame. The sustainability analysis shows that a harvest level of <=20 mt would provide a 50 percent probability for the stock to rebuild in 170 years, with a high probability (80 percent) of no further decline in the spawning biomass over the next 100 years. The southern bocaccio rockfish stock has suffered poor recruitment during the warm water conditions that have prevailed off Southern California since the late 1980s. If a period of good recruitment occurs, the stock could be expected to rebuild much faster than estimated.

The National Standard Guidelines do not address the situation where NMFS concludes that a stock cannot rebuild by TMAX, even with zero fishing mortality. Therefore, NMFS has determined that the National Standard Guidelines do not provide sufficient guidance for the bocaccio rockfish situation and instead has looked directly to the Magnuson Stevens Act for guidance. Section 304(e)(4)(A)(i) states that a rebuilding period shall ``be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish within the marine ecosystem.''

NMFS believes that the MagnusonStevens Act requires that the Council and NMFS meet the conservation needs of the stock (National Standard 1), and also consider the needs of fishing communities (National Standard 8). In balancing these considerations NMFS has determined that zero fishing mortality is not required for this situation. Zero fishing mortality would seriously adversely affect fishers and communities in California south of Cape Mendocino because commercial fisheries (including fisheries for nongroundfish species) and recreational fisheries that incidentally catch bocaccio would be severely curtailed or closed altogether for many years into the future.

Comment 3: NMFS violates the MagnusonStevens Act by proposing the same cowcod OY as in previous years. NMFS has not adequately assessed whether the amount of cowcod discard that is occurring is above or below the 4.8 mt OY. Finally, NMFS has failed to address the fact that its prohibition of cowcod landing and retention is not being complied with in practice the FEIS shows 0.8 mt of cowcod landed in 2001, the first year in which cowcod retention and landings were prohibited.

Response: NMFS believes that the ABC/OY alternatives presented in the FEIS represent a reasonable range of alternatives. Under each alternative, a full suite of ABC/OYs for all managed species were considered. For cowcod, where no new stock assessment information was available, the outcome and projections from the previous assessments (the best scientific information) and rebuilding analyses were carried over into the new fishing year.

The cowcod OY is based on a constant fishing mortality rate rebuilding strategy that is approximately 1 percent of the population (See Council documents: Revised Rebuilding Plan for West Coast Cowcod Exhibit C.10 Attachment 3, June 2001.) As new assessments are prepared for cowcod and as the stock recovers, the annual OY will increase in direct proportion to the biomass. These rates are consistent with the long term rebuilding goals defined for the individual species and recommended by the Council.

NMFS agrees that further analysis is needed to fully understand how prohibiting bottom fishing activities in two Cowcod Conservation Areas in the Southern California Bight (estimated to be the most important habitats for cowcod) and no retention regulations coastwide affect the total mortality of cowcod. Despite these uncertainties, NMFS anticipates that efforts to minimize bocaccio fishingrelated mortality south of Cape Mendocino will provide further protection for cowcod, which have a similar latitudinal and depth distribution and reside in similar habitats as bocaccio. These measures include: the elimination of all directed bocaccio rockfish retention; new depth based management measures that will prohibit groundfishdirected bottom trawl; reduced limited entry fixed gear and open access fishing opportunities in the depths where bocaccio are most commonly found; and the closure of the California recreational fisheries south of 40[deg]10' N. lat. from January through June 2003.

Data collected by observers in the commercial fishery support this opinion. From September 1, 2001 to August 31, 2002, prior to implementing the rockfish conservation area, a total of 322 lb (146 kg) of cowcod were weighed by NMFS observers on limited entry trawl trips, south of 40[deg]10' N. lat., where some groundfish was retained. When expanded to account for subsampling of some tows, the estimated total cowcod catch on these observed trips is 751 lb (341 kg), in association with 745,162 lb (338 mt) of retained groundfish. Using the average tow depth recorded by the observers as the measure of fishing depth, 95 percent of the weighed cowcod and 93 percent of the expanded cowcod catch occurred on tows within the depth ranges upon which the 2003 rockfish conservation area is based. No attempt has been made yet to extrapolate these results to the
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entire limited entry trawl fleet, in terms of either the total amount or depth distribution of all cowcod bycatch. However, they may serve as a general indicator of the depthdistribution of cowcod bycatch and the potential effectiveness of the conservation area.

The source of all 1,764 lb (800 kg) of cowcod landings in 2001 is unclear at this time. A small amount (100 lb, 45 kg) of the cowcod appear to have been retained during NMFS survey cruises where research catch is sold to offset the survey costs. The reminder is most likely attributable to fishers misidentifying the species and landing them as part of other market categories. When those categories are sampled for species composition and cowcod are found, the ratio of pounds of cowcod to total pounds is then applied to the entire market category for that sampling unit (gear/period/port group) to estimate the total amount of cowcod that were landed. The cowcod landings in 2002 were further reduced over 2001.

Comment 4: One commenter stated that the OY for darkblotched rockfish was too low because it was based on an 80 percent probability of rebuilding by Tmax, suggesting that a 60 percent probability of rebuilding by that date was a reasonable standard for meeting rebuilding requirements. Conversely, another commenter stated that the OY level for darkblotched was too high because it is higher than catch limits that were in force in 2001. This second commenter also notes that the 2003 specifications claim a higher likelihood of rebuilding than claimed in the 2002 specifications.

Response: The goals of rebuilding programs are to achieve the population size and structure that will support MSY within a specified time period while minimizing to the extent practicable, the social and economic impacts associated with rebuilding, including adverse impacts on fishing communities.

NMFS guidance on rebuilding plans specifies that the minimum possible time to rebuild is the time to rebuild in the absence of fishing. For darkblotched rockfish, the minimum time to rebuild is 14 years (2014). The mean generation time for darkblotched rockfish is 33 years, therefore the maximum allowable time to rebuild would be 47 years (2047). In determining the target rebuilding time period NMFS guidance recommends that the target rebuilding time be shorter than the maximum allowable time. The recommended default in section 3.4 of the technical guidance document (Technical Guidance On the Use of Precautionary Approaches to Implementing National Standard 1 of the MagnusonStevens Fishery Conservation and Management Act NOAA Technical Memorandum NMFSF/SPO July 17, 1998) is that the target rebuilding time not exceed the midpoint between the minimum and maximum possible rebuilding times (Tmid).

A draft rebuilding analysis was prepared in May 2001 and presented to the Council at its June 2001 meeting. This draft analysis was revised by NMFS in August 2001 and was adopted by the Council at its September 2001 meeting. The new analysis indicated that the stock was more depleted than originally estimated (12 percent vs 22 percent of unfished biomass,) and that the stock could not be rebuilt within 10 years as was previously thought. Therefore, the OYs since 2002 reflect an extended rebuilding trajectory.

The 2002 OY of 168 mt, was based on a 70 percent probability of rebuilding the stock to MSY by TMAX. This is equivalent to a TTARGET of 2034. The 2003 OY of 172 mt is based on the rebuilding analysis, which has a 80 percent probability of rebuilding the stock to MSY by TMAX. This is equivalent to a TTARGET of 2030. The Council recommended and NMFS agrees, that an OY of 172 mt for 2003 provides a reasonable balance between the length of time for rebuilding the stock and the adverse economic impacts to the limited entry trawl sector. The projected darkblotched biomass increase results in a higher OY even though the rebuilding time is shorter.

Comment 5: The OY for Pacific ocean perch (POP) is too low because it was based on a 70 percent probability of rebuilding by Ttarget. A 60 percent probability of rebuilding by that date is a reasonable standard for meeting rebuilding requirements.

Response: In 2001 the POP rebuilding analysis was updated with the most recent scientific information. In 2002, the OY of 350 mt reflected a 70 percent probability of rebuilding by the year 2042. For 2003, three OYs based on the most recent rebuilding analysis and corresponding to 50, 70, and 80 percent probabilities of rebuilding the stock by the year 2041 were presented to the Council. The Council recommended OY of 377 mt which corresponds to a 70 percent probability of rebuilding the stock by 2041. This OY was chosen because it was consistent with the interim rebuilding strategy adopted by the Council in prior years.

NMFS agrees with the Council's recommendation, and believes that increasing the OY for POP to a level that corresponds to a 60 percent probability of rebuilding the stock by 2041 provides little if any benefit to fishers. Because POP is a slope species and is found in similar areas as darkblotched rockfish, measures to protect darkblotched rockfish reduce the availability of POP to the commercial fishery. The best available data on December 31, 2002 indicates that only about 50 percent of the available OY for POP was landed in 2002. With the 2003 conservation areas, there will likely be fewer opportunities for vessels to directly or indirectly take POP, therefore there would be no benefit to fishers from raising the OY.

Comment 6: The yelloweye rockfish OY is 63 percent higher than in 2002. While the agency suggests that yelloweye rockfish is in better shape than it was a year ago, the higher OY results in a rebuilding period that is 15 years longer than it would have been under 2002 harvest levels.

Response: For 2002, the ABC for yelloweye rockfish was set in acknowledgment that this stock would be designated as overfished and was based on the recommendation from the stock assessment author and the Stock Assessment Review Panel that reviewed the assessment. The Council adopted a total catch OY for yelloweye rockfish that was based on a precautionary adjustment of 50 percent of the specified ABC.

On January 11, 2002, yelloweye rockfish was declared overfished (67 FR 1555). At the Council's June 2002 meeting, an initial yelloweye rockfish rebuilding analysis, based on the 2001 assessment, was prepared and presented. The development of rebuilding measures for yelloweye rockfish was hampered in this process because this assessment did not cover waters off the coast of Washington. In August 2002, an updated assessment was completed in order to incorporate data from Washington, an important area of yelloweye rockfish abundance, and to incorporate newly available age data.

The assessment update concluded that the coastwide yelloweye rockfish spawning female biomass was at 24.1 percent of its unfished biomass at the beginning of 2002. This is in contrast to the 2001 assessment that estimated that yelloweye rockfish was at about 7 percent of its unfished biomass in waters off northern California and at 13 percent of its unfished biomass in waters off Oregon. A new rebuilding analysis was prepared following completion of the 2002 assessment. Due to the less depleted stock status and higher productivity estimated by the updated assessment, the rebuilding period is shorter than had been initially estimated. The estimated year to rebuild
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in the absence of fishing is 2027, while the target rebuilding year associated with a 22 mt OY for 2003 is 2052(TMID). Selecting an OY that corresponds to TMID is consistent with NMFS guidance on rebuilding plans.

NMFS believes that the MagnusonStevens Act requires that the Council and NMFS meet the conservation needs of the stock (National Standard 1), and also consider the needs of fishing communities (National Standard 8). A lower rebuilding OY, which would further reduce the potential income of the fishers is not required.

Comment 7: One commenter stated that the sablefish should be set higher, at 8,187 mt, which would be based on recruitment changes affected by environmental conditions, the default MSY proxy, and the Council's harvest control rule. Failing to base the sablefish OY on environmental conditions ignore the best available science, which show that environmental conditions affect stock status. Conversely, another commenter stated that the sablefish OY is 30 percent higher than that recommended by the Council's Allocation Committee, saying that the higher amount is not justified.

Response: The SSC indicated that the medium and high OYs were relatively riskprone and advised the Council that caution should be used when setting the 2003 harvest levels. The 5,000 mt OY, as recommended by the Council's ad hoc Allocation Committee, was consistent with the Scientific and Statistical Committee (SSC) recommendation because it addressed uncertainty in the assessment relating to the different states of nature.

After deliberations, the Council recommended OY of 6,500 mt which is a 7,455 mt OY, based on a 40/10 adjustment to the ABC, with an additional 1,000 mt precautionary reduction. The Council based its recommendation on the SSC's advice to be precautionary because of assessment uncertainties, and because the sablefish biomass is within the precautionary range. While the OY is higher than that recommended by the Allocation Committee, this OY is still considered to be risk averse rather than risk neutral. NMFS agrees with the Council's recommendation.

Comment 8: One commenter stated that the whiting OY is too low and is set at a harvest rate that is more conservative than the Council's default rate, which is unjustified. Another commenter stated that the OY is contrary to the scientific advice of the U.S. Canada Review Panel. A third commenter stated that the whiting OY was higher than recommended by the Council's SSC and that setting the higher OY was unjustified.

Response: In estimating the current biomass, NMFS used a medium level recruitment assumption of a recent (1999) large year class. The medium recruitment level was considered to be risk neutral. The U.S. ABC of 188,000 mt is 80 percent of the coastwide ABC. The U.S. whiting OY is 148,200 mt which is 80 percent of the coastwide OY (185,325 mt) and is based on the application of an F45% harvest rate, reduced by the Council's default rebuilding 4010 harvest rate policy. Under the 4010 harvest rate policy, the OYs of stocks that are below B40% abundance are set at increasingly more conservative rates the farther they are below B40%.

The SSC advised the Council to be precautionary when setting the Pacific whiting OY and not increase it over the 2002 harvest level (U.S. OY for 2002 was 129,600 mt) until a new assessment was conducted. However, the Council indicated that the medium harvest level, 148,200 mt (13 percent increase over 2002), based on the 2003 projected biomass with an F45% harvest rate proxy was sufficiently precautionary, because the risk neutral medium recruitment assumption and a more conservative harvest rate proxy were applied. The ABC for a species or species group is generally derived by multiplying the harvest rate proxy by the biomass to forecast the amount of harvest available to the fishery. Because of expected whiting biomass growth in the coming years, this will result in a shortterm increase in the OY. However, the more precautionary harvest rate proxy is expected to increase the rebuilding rate and reduce the risk of declining back into an overfished state because whiting is a highly productive species.

The Joint CanadaU.S. Review Panel on the Stock assessment of the Coastal Pacific Hake/Whiting stock met in February 2002 and prepared a report, which was used by the Council and SSC in recommending the Pacific whiting harvest levels for 2002. While both U.S. and Canadian review panel members had a common interest in conducting sound technical review, they had different responsibilities in terms of the type of advice expected by the Council and Canadian Department of Fisheries and Oceans. Specifically, the review panel recommended changing the harvest rate to an F45% harvest rate and selecting the harvest level bounded by the low and medium recruitment scenarios for the 1999 yearclass. This was a risk adverse policy recommendation that was not adopted by the Council for the reasons previously stated.

Comment 9: NMFS has failed to compensate for overharvest in past years' fisheries in proposing harvest limits for 2003. In its proposed rule at 68 FR 953, NMFS discussed overfishing that had occurred in 2001, but not in 2002, claiming that landings data was not available at the time of the publication of the proposed rule. A full month has passed since the end of 2002, therefore, NMFS will violate the MagnusonStevens Act if it fails to consider 2002 catch data in making its final decision on the 2003 specifications.

Response: Each year since 2000, NMFS has provided a brief report within the preamble to the proposed rule on whether overfishing occurred on any groundfish species in the last year for which data was available. This report is not a required part of the preamble to the specifications and is simply provided as an update for the public. The commenter has taken a sentence from that report and revised its context so as to accuse the agency of failing to consider 2002 data in crafting specifications and management measures for 2003. The Council and its participating state and Federal agencies consider all available data, including catch data from the current fishing year when devising specifications and management measures for the upcoming fishing year.

To the extent that they were available, data from fisheries conducted during 2002 were used in evaluating 2003 management options for all fleets targeting groundfish. Inseason comparison of trawl bycatch projections with reported landings during the first four months of 2002 resulted in adjustments to the expected target species landings of vessels within the 2003 model. Additionally, because trawl landings of bocaccio during the first four months exceeded the total bycatch projected for that timespan, bocaccio bycatch rates were increased for modeling the 2003 trawl fishery. Recommendations for management of the fixed gear, daily trip limit fishery for sablefish also incorporated landings during the first four months of 2002, in conjunction with catch rates over the previous three years. Early season landings in the recreational and commercial fixed gear fisheries for nearshore rockfish were included in evaluating 2003 management, along with recent years' landings. However, in the region north of 40[deg]10' N. lat., participation is usually low early in the year due to bad weather. As a result, landings during this period are of
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limited use in evaluating the overall adequacy of measures adopted for the entire year. While recreational and commercial fixed gear vessels are usually more active in the region south of 40[deg]10' N. lat. early in the year, these groundfish fisheries were closed during two of the first four months of 2002, restricting their usefulness. As data for May and June became available during the summer, they were examined, and incorporated into 2003 projections where appropriate.

In this letter of comment, the commenter refers to the Quota Species Monitoring (QSM) system, asserting that this system collects and reports data within about two weeks of landings and is used for inseason management. This comment expresses a common confusion between the best available science and the most recently available science. The QSM system provides estimates of total landings for managed species that are used for inseason fishery monitoring to show managers general fishery trends, such as whether a particular species is being landed at higher or lower amounts than the previous year or cumulative limit period. QSM data is not used in stock assessments because assessments require more accurate and specific landings data, data that comes from fishtickets. Data from fishtickets is also needed and used to predict individual vessel behavior within different management scenarios. Information from fishtickets, which detail the landings of individual vessels, is not available until several months after the landings recorded by those fish tickets were made. Accurate landings data from fishtickets represents the best available scientific information about how landings of the different groundfish species are distributed between various ports coastwide. Landings levels predicted by the QSM system represent only the most recently available information on general landings trends and cannot substitute for the accuracy and specificity of fishticket landings data.

Stock assessments conducted during 2002 were initiated very early in the year, and were completed by April. Catches are specified in the models on an annual basis, and given the Council's ability to respond to early trends through use of inseason adjustments, it would not have been appropriate to have modified the models' assumptions regarding expected 2002 catch, based on only 2 months of landings data.

Comment 10: We disagree with NMFS's statement that ``[N]ew leglisative mandates . . . gave highest priority to preventing overfishing and rebuilding overfished stocks.'' National Standard 1 requires fisheries management measures to prevent overfishing ``while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.''

Response: The MagnusonStevens Act contains ten National Standards that characterize the nation's primary objectives for Federal fisheries management. National Standard 1 reads as follows: ``Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.'' National Standard 8 reads as follows: ``Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize the adverse economic impacts on such communities.'' Balancing these two national standards is at the heart of the challenge faced by NMFS and the Council in managing West Coast groundfish fisheries. National Standard 8 does recognize the importance of fishing communities, but it makes that recognition while reminding managers of their obligation to prevent overfishing and rebuild overfished stocks.

Bycatch and Discard

Comment 11: The 2003 groundfish management measures are a complex combination of trip limits and depthbased closures; however, the agency lacks much of the scientific information needed to ensure the success of this management scheme. The agency must establish an accurate accounting system to measure total catch and must establish a monitoring system to measure the depths at which the different species are caught. We fully endorse the use of vessel monitoring systems (VMS) to both enforce depthbased closures and to provide muchneeded data on the catch locations for particular species.

Response: NMFS agrees. The groundfish management measures are certainly complex and will require monitoring systems to both enforce regulations and to provide scientific information on the effectiveness of the regulations at protecting overfished groundfish species. NMFS is investigating VMS units and preparing its computer database facilities for receiving and organizing VMS data. The agency expects to soon publish a proposed rule that would set out requirements for all limited entry vessels that fish for groundfish to carry VMS. These proposed regulations would undergo public review and comment while the burden of increased public reporting duties associated with VMS were also under public review and Office of Management and Budget review under the Paperwork Reduction Act. If NMFS approves final VMS regulations for implementation, the agency expects that this system would provide much needed data on the locations and depths at which vessels fish. Such information would be subject to MagnusonStevens Act confidentiality restrictions, but is expected to be very useful to NMFS enforcement and science centers. Data from the groundfish observer program and from the VMS program are expected to notably improve NMFS scientific information on West Coast groundfish and groundfish fishing activities. Data from the NMFS observer program will enhance the agency's ability to estimate the total catch of not only bycatch species, but target species, as well. Appropriate application of observer discard data to entire fleets requires substantial data review and modeling; this work is now underway.

Comment 12: Three commenters discussed the current model for bycatch analysis and suggested that NMFS needs to update and improve the data used in that analysis. In particular, the commenters were critical of the use of trawl logbook data in the current bycatch analysis, saying that the data is old and does not accurately reflect current fishing patterns. Commenters also suggested that NMFS incorporate observer data into its bycatch rate analyses, and use that data to check its bycatch rate assumptions for 2003. One of these commenters further noted that the bycatch model only addresses the trawl fisheries and asked that NMFS conduct a review of its data sources on fishingrelated mortality and update the FMP to specify the types of data needed to improve estimates of total mortality.

Response: NMFS agrees that the bycatch model needs to be updated and needs to incorporate observer data, and the agency and the Council are working toward those ends. On January 2729, 2003, the Council's SSC sponsored a workshop to review the bycatch model and the data sources for that model. The SSC plans to evaluate the report of the workshop review panel at its March 2003 meeting, which will be held concurrently with the Council's March 914, 2003 in Sacramento, California,
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and provide the Council with its recommendations at the April 2003 Council meeting. NMFS believes that this SSC review is an important step toward improving the bycatch model to better support groundfish management.

NMFS agrees that observer data from the new NMFS West Coast groundfish observer program needs to be incorporated into the bycatch model. Before using the data for inseason management, NMFS must first review the data for potential sources of bias and, in conjunction with the SSC, determine the most appropriate methods for incorporating the new data into the bycatch model. On January 30, 2003, NMFS released its first report on observer program data. The observer program began in August 2001 and this new report provides data from the August 2001 through August 2002 period. NMFS Northwest Fisheries Science Center is currently determining how best to integrate the new observer data into the model. Results from the first year of the observer program's activities are available online as the West Coast Groundfish Observer Program Initial Data Report and Summary Analyses at http://
www.nwfsc.noaa.gov/
fram/ Observer/ datareport.htm.
www.nwfsc.noaa.gov/ fram/ Observer/ datareport.htm.

NMFS also agrees that logbook data should not be a primary data source for the bycatch rates used in the model, although the agency notes that logbook and fish ticket data are likely to remain integral to projecting fleet behavior within the bycatch model. One commenter noted that fishing strategies have changed since the 1999 logbook data used in the model became available. While it is true that fishing strategies have changed, the 1999 logbook data are used to show co occurrence between the more abundant targeted stocks and overfished stocks during a period when fishing was less restricted. Fishery managers need to know how cooccurrence ratios looked during less restrictive fishing periods in order to better craft fishing restrictions that will reduce interceptions of overfished species. Another commenter noted that logbooks only show the beginnings of tow locations, not the direction and duration of the tows. NMFS and the Council need more accurate information on where trawl vessels are fishing throughout their tows. However, individual trawl tows may last for hours and encompass a wide range of depths. Consequently, even complete information regarding the path of any tow would not eliminate all ambiguity on where particular species were caught. NMFS also needs more information on the fishing locations of the nontrawl and recreational fleets in addition to improvements in trawl fishing location data. If NMFS is able to approve the VMS system regulations discussed above in the response to Comment 11, the agency expects that its data on the locations and depths at which vessels fish will be markedly improved. While the VMS regulations would initially apply to limited entry vessels fishing for West Coast groundfish, NMFS anticipates expanding these requirements to commercial passenger fishing vessels (recreational charter boats) and to the open access groundfish fleet.

NMFS agrees that the current bycatch model only addresses the groundfish trawl fleet. During development of the model, bycatch rate data were unavailable for other fleets that catch groundfish. The NMFS observer program is collecting data from nontrawl fishery
participants. As more data become available, it is the agency's intent to expand the bycatch model to include other gear types. With respect to the comment that NMFS needs to conduct a review of its data sources on fishingrelated mortality, NMFS refers the public to the NMFS Northwest Fisheries Science Center's 2002 Groundfish Research Plan in 2002, which is available online at http://www.nwfsc.noaa.gov/ fram/ 2002, which is available online at /i.p/outbound/www.nwfsc.noaa.gov/">www.nwfsc.noaa.gov/ fram/ GFresearchplan.htm. Among other things, the Groundfish Research Plan provides planning goals for investigating bycatch and discard, and how these contribute to total groundfish mortality.

Comment 13: NMFS has refused to seriously consider the alternative of managing the fishery under a system of discard caps, under which the fishery would be closed if a certain amount of discard occurred.

Response: NMFS has refused to seriously consider the alternative of managing the fishery under a system of discard caps, under which the fishery would be closed if a certain amount of discard occurred. ``Discard caps'' generally refers to a management tool whereby an entire fishery, or fishing by an individual vessel, is halted when discard quotas for designated species are reached. Administration of such a system requires realtime information on discards as the fishery progresses, either through comprehensive, direct observation by fishery observers, or by a combination of observer and landings data that can be extrapolated to yield a reliable estimate of discards. While NMFS has not ``refused to seriously consider'' managing the Pacific Coast groundfish fishery with a discard caps program, there is no data collection system in place, nor is there likely to be in the near future, on which to base a system of discard caps. NMFS will be analyzing discard caps more fully in its Supplemental Programmatic Environmental Impact Statement, a preliminary draft of which should be available for public review in late summer 2003.

West Coast groundfish management uses a similar management tool that has been adapted to account for the relatively data poor conditions in the West Coast groundfish fishery. The bycatch model, which is currently under scientific review as discussed earlier in this section, estimates the amounts of overfished species that will be taken in fisheries targeting more abundant stocks. These estimates are stratified over the months of the year, because historic data has shown that groups of groundfish species are taken in different combinations at different times of the year. Estimated bycatch and discard of overfished species is monitored through the catch and landings levels of targeted species. For example, NMFS will monitor the amounts of Dover sole and sablefish landed to estimate the amount of darkblotched rockfish discard in that sector of the fishery. Darkblotched rockfish is a deepwater rockfish species incidentally taken with Dover sole and sablefish. The Council recommends adjustments to the trip limits and/or closures of different sectors of the fishery if the OYs for overfished species are estimated to be approached. In 2002, for example, the Council learned at its June meeting that it had not accounted for darkblotched rockfish taken south of 40[deg]10' N. lat. when it developed the 2002 specifications and management measures. To prevent the deepwater fisheries from exceeding the darkblotched rockfish OY, the Council reduced trip limits for deepwater species in July and August and recommended area closures in waters where darkblotched rockfish is commonly found for SeptemberDecember. NMFS implemented the Council's JulyAugust recommendation, but found in investigating its SeptemberDecember recommendation that darkblotched rockfish are more likely to be taken by vessels targeting deepwater species in September than in the summer or winter months. Thus, NMFS closed deepwater trawl fisheries in September and implemented area closures for October December via an emergency rule.

NMFS began its observer program in August 2001 and, as mentioned above,
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has just reported its first results. However, the observer program does not have the resources to provide observer data to managers for real time fishery management. The agency expects that integrating observer data into the bycatch model and recalibrating the model with that data will significantly improve NMFS and Council ability to estimate bycatch and discard in the West Coast groundfish fishery. These changes will still not allow NMFS to implement a discard cap management program, which as mentioned earlier, requires realtime observer program data. No one management tool is suitable for all fisheries, thus NMFS and the Council must craft management tools suitable to the West Coast groundfish fisheries and to the scientific information available on West Coast groundfish and groundfish fisheries. As suggested by another commenter in Comment 12, NMFS should be evaluating its data sources on bycatch and discard and setting goals for improving both data gathering and data evaluation through models like the bycatch model. In this manner, the agency will improve its ability to craft management tools specific to the groundfish fishery and its needs.

Comment 14: The same commenter that stated that NMFS had failed to consider discard caps also stated that NMFS has failed to establish adequate bycatch assessment requirements for the fishery. This commenter noted that there are no bycatch assessment requirements contained in the proposed specifications.

Response: The groundfish specifications and management measures annually set harvest limits and management measures that constrain the fisheries such that they are permitted to achieve harvest levels for more abundant stocks while still ensuring that harvest levels for protected stocks are not exceeded. As discussed earlier in this section, OYs of more abundant stocks are often not reached because harvest is constrained or closed to protect overfished stocks. In any case, the annual specifications and management measures process is not intended to address every aspect of groundfish fishery management. However, it is incorrect to assert that NMFS has failed to address bycatch assessment requirements altogether simply because bycatch assessment requirements are not part of the annual specifications and management measures regulatory package. Bycatch assessment requirements are part of NMFS's permanent Federal regulations at 50 CFR part 660.360, implemented at 66 FR 20609, April 24, 2001, which provide groundfish observer program requirements and regulations for the West Coast groundfish fishery. For further information on the West Coast groundfish observer program, the observer coverage plan, and the first year of groundfish observer program data, please see: http://
www.nwfsc.noaa.gov/
fram/ observer/datareport.htm.
www.nwfsc.noaa.gov/ fram/ observer/datareport.htm.

Comment 15: One commenter stated that NMFS has failed to take adequate account of the bycatch occurring in the pink shrimp and prawn fisheries, in order to ensure that total mortality of overfished groundfish species does not exceed the level necessary to meet overfished species rebuilding requirements. A second commenter expressed concern about the potential bycatch of several overfished species in the spot prawn trawl fisheries. This commenter also noted that these are not federallymanaged species and that therefore, the NMFS expectation that the spot prawn trawl fisheries will close in 2003 may not be correct. If the spot prawn trawl fisheries are not closed, NMFS and the Council may have underestimated overfished species bycatch in those fisheries.

Response: The second commenter is correct in saying that the pink shrimp and spot prawn trawl fisheries are statemanaged fisheries. Each of the three coastal states has a seat on the Council, however, and is an active partner in coastwide efforts to protect overfished groundfish fisheries. Oregon Department of Fish and Wildlife) (ODFW) has been cooperating with the Oregon shrimp fleet to experiment with different types of Bycatch Reduction Devices (BRDs) since 1994. Vessels participating in state pink shrimp trawl fisheries are now required to carry BRDs to participate in those fisheries, significantly reducing their groundfish and other finfish bycatch. NMFS particularly appreciates the initiative the states and the pink shrimp industry have taken to design and test these BRDs, allowing a lucrative fishery to remain open while still reducing its bycatch of overfished groundfish species.

In all three states, spot prawn is taken with pot gear, a gear with very low bycatch rates, and has also been targeted with trawl gear. Washington State has eliminated its spot prawn trawl fishery. Oregon has three vessels participating in the spot prawn trawl fishery, which it had allowed as an experimental fishery. ODFW employees have indicated that this experimental use of trawl gear would end as of January 1, 2004. NMFS understands that the California Fish and Game Commission (Commission) is deliberating whether to continue to allow spot prawn trawling. The possibility that California may not close its spot prawn trawl fishery is of great concern to NMFS. NMFS has sent a letter to the Commission reminding it that California Department of Fish and Game employees participating in the Council process had estimated California's commercial fishery catch of bocaccio on the assumption that the spot prawn trawl fishery would no longer exist in 2003. In that letter, NMFS told the Commission that if it did not prohibit fishing for spot prawns with trawl gear, NMFS and the Council would be forced to consider additional constraints on California groundfish fisheries to offset the bycatch expected if the spot prawn trawl fishery continues. In addition, if the spot prawn trawl fishery were to occur, it would be prohibited in the trawl Rockfish Conservation Areas (RCAs).

Comment 16: For several fisheries, NMFS and the Council have underestimated the amount of bocaccio bycatch that may be expected to occur, particularly: the open access fisheries, the California set gillnet fisheries, the limited entry flatfish trawl fishery, and the California halibut trawl fishery.

Response: The commenter details several points where data on the abovelisted fisheries may be insufficient to properly estimate bycatch or where historic bycatch estimates are higher than the bycatch levels expected in 2003. In discussing the open access fisheries, the commenter notes that bocaccio landings by the open access fleet were higher in 1999 (22.8 mt) than estimated for all fisheries in 2003. Bocaccio were declared overfished in March 1998, with the first management measures to reduce bocaccio take introduced in 2000. Since bocaccio was declared overfished along with lingcod and Pacific ocean perch, six other West Coast groundfish species have been declared overfished. West Coast groundfish management in 2003 is radically different from that of 1999. NMFS has used 1999 logbook data as a reference to how overfished species interact with more abundant species during a relatively less restrictive fishing regime. The 2003 fishery management regime is considerably more restrictive than that of 1999 and 1999 bocaccio landings are not an accurate estimate of bocaccio harvest expected to occur in 2003. Limited entry and open access commercial fisheries and recreational groundfish fisheries have been under ever more restrictive management regimes in each year since 1999, such that 2003 management measures include more restrictive trip [[Page 11189]]
limits for cooccurring species, shorter season lengths, higher bycatch rate assumptions, and largescale RCAs where groundfish fishing is prohibited or otherwise restricted.

In the commenter's discussion of the California set gillnet fishery, the commenter assumes higher bycatch levels than those estimated by NMFS by comparing historic fishery data (19961999) with those estimates. As the commenter notes, several new fishery restrictions have been implemented by California and by NMFS since those years. It is not reasonable to expect that overfished species catch and discard levels will be the same under the 2003 management regime as they were under the significantly less restrictive management regimes of the late 1990s.

In discussing the limited entry flatfish trawl fishery, the commenter compares estimates of bocaccio bycatch from a California application for an exempted fishing permit (EFP) to estimates of the bocaccio bycatch in the limited entry flatfish trawl fishery. California has decided not to pursue this EFP. Nonetheless, estimates of overfished species bycatch for EFPs are intended to be some relatively high, liberal amount that would allow the EFP to remain open for as long as possible without jeopardizing rebuilding and do not necessarily reflect expected bycatch amounts. Estimates of bycatch in directed fisheries are based on the bycatch model, which looks at historical cooccurrence rates between the more abundant targeted stocks and overfished species. Further, directed limited entry trawling would occur within a more restricted area than had been planned for the flatfish EFP, which would tend to lower bycatch rates for that directed fishery.

The commenter's concerns with the California halibut fishery are of interest to NMFS and the Council. The Council has received conflicting reports on the type and level of bycatch occurring in this fishery. NMFS notes that California halibut trawling would be under the same conservation area restrictions as limited entry trawling, which are designed to move trawlers away from areas where bocaccio commonly occur. These area restrictions are expected to result in lower incidental bocaccio take in the California halibut trawl fisheries. In its review of bycatch and discard data sources, NMFS will be looking at information on all fisheries in which groundfish are taken, including the California halibut open access trawl fisheries.

Comments on Fisheries Regulations

Comment 17: One commenter stated that the groundfish conservation areas are not closed to all fishing, providing the example that some trawling is allowed in the trawl RCAs and that some nontrawl gear fishing is allowed in the nontrawl gear RCAs. This commenter stated that NMFS has failed to justify providing these exceptions to the conservation area restrictions. Another commenter wrote to support depthbased management in general.

Response: NMFS appreciates the opportunity to clarify this situation. The State of California has created the California Rockfish Conservation Area (CRCA), which is an area south of 40[deg]10' N. lat. that is closed to fishing for groundfish between 50 fm (91 m) and 150 fm (274 m). The CRCA has several exceptions for different gears in different areas and an additional closure in the northern portion of the CRCA to protect darkblotched rockfish north of 38[deg] N. lat. California proposed this CRCA to the Council and the Council adopted the regulatory provisions of the CRCA for recommendation to NMFS as part of its 2003 groundfish management measures package. NMFS felt that a large closed area with several open areas inside it would be both confusing to the public and inconsistent with the Council's management recommendations for waters north of 40[deg]10' N. lat. Thus, NMFS has implemented a trawlspecific rockfish conservation area (RCA) that is bounded between 50 and 250 fm (91 and 457 m) from 40[deg]10' N. lat. south to 38[deg] N. lat., between 50 fm and 150 fm (91 and 274 m) from 38[deg] N. lat. south to 34[deg]27 N. lat., and between 100 fm and 150 fm (183 and 274 m)from 34[deg]27 south to the U.S. border with Mexico. Within that Federal RCA, the only trawling permitted is pink shrimp trawling with BRDs. These regulations have the same effect as the California recommendation to close all trawling south of 40[deg]10' N. lat., except that pink shrimp trawling with BRDs would be allowed and that trawling inshore of 50 fm (91 m) would be allowed between 40[deg]10' N. lat. and 34[deg]27' N. lat. and inshore of 100 fm (183 m) south of 34[deg]27' N. lat, and except that trawling would further be prohibited between 150 fm (274 m) and 250 fm (457 m) between 40[deg]10' N. lat. and 38[deg] N. lat. The NMFS regulations for conservation areas south of 40[deg]10' N. lat. are consistent with those for north of 40[deg]10' N. lat. in that the regulations implement different closed areas for trawl and nontrawl vessels.

The commenter correctly notes that some nontrawl gear fishing is permitted in nontrawl gear conservation areas. Albacore and salmon fishing with hookandline gear are permitted in the conservation areas. Bottom longline fisheries like the nontreaty halibut fishery, where overfished groundfish species are more likely to be taken, will be prohibited within the nontrawl conservation areas. The conservation areas are not closed areas wherein all fishing of any type is prohibited; rather, they are conservation areas wherein fishing activities expected to take overfished species are prohibited or restricted.

Comment 18: We object to fisheries regulations that prohibit the possession of fish in excess of trip limits and that force vessels to continuously offload their catch. Prohibiting the possession of fish in excess of trip limits puts processors in jeopardy of citation. Processors must often offload fish in order to determine whether trip limits have been exceeded and how to deal with that excess fish. We suggest that possession of fish in excess of trip limits be permitted in cases where state or Federal officials are alerted to that possession within 96 hours of the start of the possession.

Response: Federal groundfish regulations have prohibited the ``taking and retaining, possessing or landing'' of groundfish in excess of trip limits since the 1980s. Federal regulations do not require vessels to continuously offload their catch; rather, the regulations require that once offloading is begun, all fish on board the vessel be recorded on the same landings receipt and/or fish ticket. Processors are not in any more jeopardy of prosecution for possession of trip limit overages than they ever have been. NMFS and state enforcement officers will continue to expect fishers and processors to report trip limit overages and to forfeit those overages to the state in which they are landed. Possession of trip limit overages, whether reported or not, is a violation of Federal law, but enforcement of that prohibition is dealt with far differently for those persons who are found to have possessed such overages without reporting them. NMFS and state enforcement continue to need an avenue for prosecuting fishers and processors that retain trip limit overages without reporting and forfeiting those overages. Although the agency appreciates the commenter's concern for the ability of processors to comply with Federal law, NMFS will not be loosening this Federal restriction.

Comment 19: The trawl trip limit table for north of 40[deg]10' N. lat. lists an incorrect trip limit for yellowtail rockfish when taken as bycatch in the
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flatfish fisheries. The currently listed limit of 3,000 lb (1,361 kg) per month should be 30,000 lb (13,608 kg) per month. Trip limit tables discussed and adopted at the Council's September meeting showed incidental yellowtail rockfish catch levels of 30,000 lb (13,608 kg) per month. NMFS changed this catch limit after the Council meeting with no public scrutiny and no economic analysis of the effects of the change.

Response: In its motion on groundfish management measures, the Council adopted the limited entry trawl trip limits shown in the Council's Exhibit C.3.v., Supplemental GMT report, at pages 45. Unfortunately, that table is unclear on the trip limit for yellowtail rockfish when taken as bycatch in the flatfish fisheries. The table shows the yellowtail rockfish limit when taken in the flatfish fisheries as ``3,000?'' The Council never clarified this limit in its motion, but the Council's postmeeting newsletter mistakenly listed the limit as 30,000 lb (13,608 kg) per month, perhaps based on the 2002 yellowtail rockfish limit in the winter flatfish fisheries, which was 30,000 lb (13,608 kg) per 2 months.

NMFS has reviewed JanuaryApril 2002 trawl vesselmonth landings of yellowtail rockfish in combination with flatfish. A vesselmonth represents the landings activities of a single vessel in a single month. In 97 percent of the vesselmonths in which flatfish were landed during JanuaryApril 2002, the amount of yellowtail rockfish associated with those flatfish landings was less than 3,000 lb (1,361 kg) and it was zero pounds (0 kg) over 80 percent of the time. Given the lack of clarity in the table the Council used for its recommendations and the fact that the 3,000 lb (1,361 kg) per month limit accommodated 97 percent of all yellowtail landings in association with flatfish in JanuaryApril 2002, NMFS does not believe that an increase to 30,000 lb (13,608 kg) per month is warranted at this time. The Council will have an opportunity to review groundfish trip limits and other management measures at its April 711, 2003 meeting in Vancouver, Washington.

Comment 20: The management measures authorize considerable midwater trawling, but NMFS has failed to explain which overfished species may be negatively affected by midwater trawling and what those effects might be. Apparently the agency believes that midwater trawling will not increase the mortality of overfished species beyond the levels necessary to rebuild those species as quickly as possible.

Response: As detailed in the Council's FEIS for this action, the vast majority of midwater trawling for groundfish off the West Coast targets Pacific whiting. Other than Pacific whiting, there are small allowances for yellowtail and widow rockfish when taken with midwater gear in association with Pacific whiting. There may also be directed yellowtail and widow rockfish fisheries with midwater gear in November December 2003, if total catch estimates for these and associated stocks show that these fisheries may be held without risk of exceeding the OYs of any species. These fisheries will not proceed if there are not sufficient portions of the OYs remaining to accommodate expected catch. NMFS does expect that midwater trawling will result in widow rockfish, an overfished species, being caught and landed. However, NMFS does not expect that the take of widow rockfish in the midwater trawl fisheries will jeopardize the rebuilding plan for widow rockfish because management measures for 2003 have been designed to keep estimated total widow rockfish mortality in directed fisheries and as bycatch below the widow rockfish OY.

NMFS regularly documents bycatch in the midwater trawl fisheries. The total catch by species in the atsea whiting fishery has been monitored by observers since 1991. Each vessel currently carries two observers, so virtually all hauls are directly sampled and are figured into the total catch estimates. NMFS provides an aggregation of atsea whiting bycatch in an annual report provided to the public at the April Council meeting. EFPs are used in the shorebased whiting fishery and the vast majority of shorebased landings are landed unsorted, with a census of the catch taken upon landing. Port samplers also monitor shorebased whiting processing facilities. The State of Oregon reports on bycatch in the coastwide shorebased whiting fishery in an annual report, which is available online at http://hmsc.oregonstate.edu/ odfw/ finfish/ wh/index.html. As documented in these reports, bycatch of overfished species other than widow rockfish is at trace levels (fewer than 0.01 kg per mt of whiting taken.)

Comment 21: NMFS failed to consider an obvious management measure to ban the use and carrying of large footrope trawl gear, rather than simply banning the landing of shelf rockfish by vessels carrying that gear. Large footrope trawl gear may affect deeperwater species, which may be lowmobility, longlived species that are more vulnerable to the acute and chronic physical disturbance of trawling. NMFS has failed to support its implicit conclusion that large footrope trawling will not impact deeperwater overfished species such as darkblotched rockfish.

Response: The commenter has incorrectly characterized NMFS regulations. Large footrope gear may be used only seaward of the trawl RCAs and vessels are prohibited from taking, retaining, possessing or landing shelf and nearshore rockfish and/or lingcod when large footrope gear is on board the vessel. While prohibiting the use of large footrope gear even seaward of the conservation areas could improve enforceability of the regulations, NMFS concluded that the benefit provided by allowing the harvest of Dover sole, sablefish, and thornyheads in areas of lowest bycatch of overfished species outweighed enforcement difficulties.

NMFS disagrees with the commenter's assertion that the agency has implicitly concluded that large footrope trawling in deeper waters will not impact deeperwater species. NMFS fully expects that fishing activi

FOR FURTHER INFORMATION CONTACT Yvonne deReynier or Becky Renko (Northwest Region, NMFS), phone: 2065266140; fax: 2065266736; and email: yvonne.dereynier@noaa.gov, becky.renko@noaa.gov or Svein Fougner (Southwest Region, NMFS), phone: 5629804000; fax: 562980 4047; and email: svein.fougner@noaa.gov.