Federal Register: December 29, 2006 (Volume 71, Number 250)
DOCID: FR Doc 06-9856
DEPARTMENT OF COMMERCE
Workers’ Compensation Programs Office
CFR Citation: 50 CFR Part 660
Docket ID: [Docket No. 060824226-6322-02; I.D. 082806B]
RIN ID: RIN 0648-AU57
NOTICE: Part V
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
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
DATES: Effective January 1, 2007.
DOCUMENT SUMMARY:
This final rule implements Amendment 16-4 to the Pacific Coast Groundfish Fishery Management Plan (FMP) and sets the 20072008 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 164 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 20072008 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 nonoverfished species. Together, Amendment 164 and the 20072008 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.
SUMMARY:
Commerce Department, National Oceanic and Atmospheric Administration,
SUPPLEMENTAL INFORMATION
Electronic Access
The final rule also is accessible via the Internet at the Office of the Federal Register's website at http://www.gpoaccess.gov/fr/index.html. Background information and documents, including the FEIS, are available at the Council's website at http://www.pcouncil.org. Background
NMFS published a Notice of Availability for Amendment 164 on September 1, 2006 (71 FR 25051.) On September 29, 2006, NMFS published a proposed rule to implement both Amendment 164 and the 20072008 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 setasides 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 20072008 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 cooccurring 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 164, which this action implements concurrently with the 20072008 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 MagnusonStevens 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 164, the draft environmental impact statement (DEIS,) and the proposed rule, NMFS partially approved Amendment 164 on November 30, 2006. NMFS approved all of the Council's Amendment 164 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 164 and the 20072008
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 nonsubstantive, 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 20072008 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 longterm 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 shortterm needs of fishing communities into account is to merely avoid disastrous shortterm 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 longterm 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 mischaracterizes the MagnusonStevens 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 MagnusonStevens 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 shortterm consequences for fishing communities.'' NMFS and the Council applied the court's direction in developing the EIS for this action and Amendment 164 by first identifying, and then giving careful consideration to the shortterm 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 MagnusonStevens Act or import ``disaster'' language from other portions of the MagnusonStevens Act or other statutes into the 304(e) process. Nevertheless, because the comment focuses on the question of whether Amendment 164 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 shortterm 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 MagnusonStevens Act.
The two authorities that the Secretary of Commerce (Secretary) can use for declaring fisheriesrelated disasters are the
Interjurisdictional Fisheries Management Act (IJA) and Section 312(a)
of the MagnusonStevens Act. Neither the IJA nor the MagnusonStevens
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 MagnusonStevens 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 60percentdecline 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 casebycase, 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,
MagnusonStevens 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 longterm 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 longand shortterm 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 213 of the DEIS, which shows trends in
exvessel revenues with and without whiting harvested by atsea
processors. This figure, updated since 2000, also shows that the
fishery has been held to belowdisaster 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 19811999
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 cooccurring stocks, particularly bottomdwelling 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 tonsa 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 19811999 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 nonwhiting 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 longlived 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 exvessel 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 exvessel price based on 19911994
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
exvessel 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 exvessel revenues below the 20012005 average.
For Amendment 164 and the 20072008 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 MagnusonStevens 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 MagnusonStevens 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 fiveyear exvessel 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 762ac, 763ac, and 764ab,) and the central
recreational analytical tables also show similar comparisons but
include estimates for 2004 (summarized in Tables 765ab, 766ab, 7
67ac, and 768ae.) 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 fiveyear 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 catcherprocessors
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
belowdisaster 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 shortterm 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 shortterm economic impacts and even increasing shortterm 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 shortterm 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 ``shortterm 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 MagnusonStevens 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 absenceof fishing scenario in the EIS, OY Alternative 1 provides OYs of 0 mt for all depleted species. This absenceoffishing 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 shortterm economic consequences on fishing communities because it would result in the complete closure of all groundfish fisheries and a range of nongroundfish fisheries, having serious, or, in the words of the court ``disastrous consequences'' to fishing communities. In contrast, the Councilpreferred alternative was developed to fully address the requirements of the MagnusonStevens 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 cooccurring target species. The rampdown approach is expected to avoid some disastrous shortterm 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 nontribal 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 socioeconomic 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 shortterm 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 fisheryrelated 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 A47 and A48, 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 onethird 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 onethird 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 onethird 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 nonfishing 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 socioeconomic 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 shortterm consequences of management to those communities. In doing so, the fishing community analysis follows the directives of the MagnusonStevens 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., timeseries regression
analyses, estimation of resource efficiency and productivity,
application of nonstatic 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
[[Page 78643]]
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 socioeconomic 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: http://www.fs.fed.us/pnw/publications/gtr649/pnwgtr649_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 socioeconomic 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 Socioeconomic Monitoring Key Results'' by Susan Charnley, U.S. Forest Service, PNW Stations (http://www.reo.gov/monitoring/10yrreport/socialeconomic/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 http://www.dfg.ca.gov/MRD/masterplan/index.html , 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 rampdown 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 cooccur 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
B
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 20072008. 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 hookandline survey to incorporate additional survey stations within untrawlable 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
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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 (datarecording fish tags) to assess discard survival and movements of yelloweye rockfish. In connection with this data collection, ODFW is studying rockfish behavior following hookandline 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 rampdown
rebuilding strategy extends the yelloweye rockfish rebuilding time 38
years beyond T
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 hookand 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 cooccur with. The yelloweye rockfish OY rampdown 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 zeroharvest alternative, 12 mt alternative, a 12.6 mt alternative, and the ramp down strategy adopted in Amendment 164. 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 nontribal fishing communities.
Comment 7: The Three Organizations cite Tables 45 through 47 of the Final EIS for the 20072008 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 Counciladopted 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 rampdown rebuilding strategy does not rebuild yelloweye rockfish as quickly as possible.
Response: Table 45 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: http://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 onehalf of the 2006 OY of 27 mt. As
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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 Cshaped 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 nontrawl 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: http://www.nwr.noaa.gov/GroundfishHalibut/GroundfishFisheryManagement/GroundfishClosedAreas/RCAArchives.cfm. ) This closure keeps nontrawl commercial
awl commercial
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
20072008, 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 nontrawl RCA overlap with the traditional recreational Cshaped 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 nontrawl commercial and
recreational groundfish fisheries is available online at: http://www.nwr.noaa.gov/GroundfishHalibut/GroundfishFisheryManagement/GroundfishClosedAreas/Index.cfm#CP_JUMP_30276 .
.
than those used in the commercial fishery, and are less likely to take
multiday fishing trips. As a result, most recreational fisheries
operations occur within the 0100 fm (0183 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 largersized Pacific
halibut, the largest of the West Coast flatfishes. Pacific halibut
commonly cooccur 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 cooccurrence 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 Cshaped YRCA (68 FR 10989, March 7,
2003.) Today, the Cshaped 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 cooccurs 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 Cshaped 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
speciesspecific 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
B
The FEIS for this action estimates at Table 418 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
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bycatch ratio applies only to sablefish taken with longline gear; pot
gear is estimated to have zero yelloweye catch.] At Table 722, the
FEIS estimates that the limited entry fixed gear sablefish landings in
Washington generated approximately $2,753,000 in exvessel revenue.
This is important income for vessels operating from some of the most
economically groundfishdependent 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 rampdown 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 rampdown 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 outputs than younger rockfish, and that having older female rockfish in a population increases the chance that some fish will release their larvae at the best time for food supply. They also believe that management measures should promote multiple productive stocks with a mix of old and young females over a broad spatial area. To use the best available science, they believe that NMFS should explore and implement strategies to avoid mortality of mega spawners and immature fish and modifying the OY models to account and plan for the age structure of the fishery. They then conclude that lower groundfish OYs better preserve megaspawners, which they believe guards against collapse.
Response: The scientific papers cited by the Three Organizations specifically discuss research on black rockfish, not yelloweye rockfish, although an additional 2004 paper from Berkeley, et. al, ``Fisheries Sustainability via Protection of Age Structure and Spatial Distribution of Fish Populations,'' draws more general conclusions about the effects of age and spatial distribution on population health and abundance on a variety of Pacific rockfish species. Most rockfish species are longlived and slowgrowing, with individuals of some species living as long as, or longer than 100 years. This rockfish life history strategy is useful in a physical environment, such as with the narrow continental shelf off the North American West Coast, where optimal spawning conditions may occur infrequently over time. Different rockfish species benefit from different environmental conditions in terms of which years and geographic areas are likely to feature successful spawning classes. Many of the West Coast overfished rockfish stock assessments have noted that rockfish stocks will require several particularly successful recruitment years before they recover above BMSY. For example, the recent increase in bocaccio abundance was made possible by two particularly successful year classes from 1999 and 2000. Lingcod, by contrast, is more consistent in its yeartoyear spawning success, and its rebuilding primarily benefitted from fishery closures in times and areas when its recruitment success was most vulnerable during the winter spawning and nestguarding period.
The Three Organizations note that the 2004 Berkeley, et. al paper has demonstrated that older female black rockfish produce larvae with faster growth rates and greater larval survival than younger fish, with age being a more significant predictor than size alone. Similarly, Bobko and Berkeley (2004) demonstrated that older females spawn earlier in the year than younger females, with potential implications on sustainability and reproductive success associated with the timing of parturition and the short term variability in ocean conditions. The Berkeley et al. paper on fisheries sutainability, mentioned above, speaks on the implications of these results to rockfish more generally, but this review does not conclusively demonstrate comparable impacts on other Sebastes species. In other words, the authors of these papers have, in keeping with sound science practices, provided quantified conclusions on black rockfish that may be considered for use in future black rockfish stock assessments, but only qualitative conclusions for other rockfish species. NMFS notes that comparable research in the North Atlantic has led to estimable impacts of productivity for commercially important species. For example
FOR FURTHER INFORMATION CONTACT
Yvonne deReynier (Northwest Region,
NMFS), phone: 2065266129; fax: 2065266736 and; email:
yvonne.dereynier@noaa.gov.