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Proposed Rule

Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Commercial Groundfish Fishery Management Measures; Rockfish Conservation Area Boundaries for Vessels Using Bottom Trawl Gear

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AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

This proposed action would implement revisions to the boundaries of the Rockfish Conservation Area (RCA) that is closed to vessels fishing groundfish with bottom trawl gear. This proposed rule would affect the limited entry bottom trawl sector managed under the Pacific Coast Groundfish Fishery Management Plan (FMP) by liberalizing RCA boundaries in order to improve utilization of target species.

DATES:

Submit comments on or before October 15, 2013

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2013-BD37, by any of the following methods:

  • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/​#!docketDetail;​D=​NOAA-NMFS-2013-0134, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
  • Mail: Submit written comments to William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Colby Brady.
  • Fax: 206-526-6736; Attn: Colby Brady.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

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FOR FURTHER INFORMATION CONTACT:

Colby Brady, 206-526-6117; (fax) 206-526-6736; Colby.Brady@noaa.gov.

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SUPPLEMENTARY INFORMATION:

Background

Since 2002 NMFS has used large-scale, depth-based closures to reduce catch of overfished groundfish, while still allowing the harvest of healthy stocks to the extent possible. RCAs are gear specific closures, and apply to vessels that take and retain groundfish species. NMFS is proposing to change portions of the boundaries defining the RCA that is closed to vessels fishing for groundfish with bottom trawl gear, or the “trawl RCA.” This proposed rule would not change how the trawl RCA applies to vessels fishing for groundfish using bottom trawl gear. Rather, it would only make changes to the boundaries of the trawl RCA.

Vessels targeting groundfish with bottom trawl gear are participants in the shorebased individual fishing quota (IFQ) program, which began in 2011 (75 FR 78344, December 15, 2010). Catch of groundfish by these vessels is primarily regulated with quota pounds. All catch of IFQ species, retained or discarded, must be covered by equivalent quota pounds, and participants are subject to a 100 percent monitoring requirement that includes at-sea observers and dockside catch monitors. Accordingly, fishermen are individually accountable for their catch, including any catch of overfished species.

The currently scheduled trawl RCA boundaries for 2013 and 2014 were established through the 2013-2014 harvest specifications and management measures in a proposed and final rule, 77 FR 67974, November 14, 2012 and 78 FR 580, January 3, 2013, respectively. However, RCA boundaries are routinely modified inseason in response to new information. Early in 2013, industry requested that the Pacific Fishery Management Council (Council) and NMFS consider opening some areas that were closed by the trawl RCA off Washington, Oregon and northern California (between 40°10′ N. lat. and 48°10′ N. lat.).

Increasing Harvest Opportunities in the Shorebased IFQ Program

The trawl rationalization program, including the shorebased IFQ program, was intended to increase net economic benefits, create individual economic stability, provide full utilization of the trawl sector allocation, consider environmental impacts, and achieve individual accountability of catch and bycatch. Since the implementation of the program, catch of many overfished species has declined and revenues increased in 2011. In 2012 non-whiting revenue dropped slightly, most likely due to decreases in sablefish prices. However, in the 2012 shorebased IFQ program, catch of several marketable target species was well below the available shorebased trawl allocation. Over 33 million pounds of flatfish, including Dover sole, went unharvested in 2012. Over 5.5 million pounds of Pacific cod and lingcod went unharvested in 2012. For rockfish, over 6.7 million pounds of minor shelf, minor slope and yellowtail rockfish went unharvested.

This proposed rule would increase access to fishing grounds in a fishery where participants are motivated by IFQ to keep bycatch of overfished species low, irrespective of trawl RCA boundaries. The proposed changes to the trawl RCA boundaries would continue to refine groundfish fishery management measures to enable higher attainment of available quota pounds for several valuable species, while still protecting overfished species.

Changes to the Trawl Rockfish Conservation Area

Proposed Boundaries

At its March 7-11, 2013, meeting in Tacoma, Washington and its April 6-11, 2013, meeting in Portland, Oregon the Council received requests from the Groundfish Advisory Sub-panel (GAP) to open some areas that were closed by the trawl RCA in the area north of 40°10′ N. lat. to increase access to target species such as yellowtail rockfish, Dover sole, lingcod and Pacific cod (March 2013, Agenda Item H.3.b, Supplemental GAP Report; April 2013, Agenda Item D.8.b, Supplemental GAP Report). The Council made an initial recommendation in March to open some shoreward areas during March and April (Period 2) of 2013. However, NMFS recommended that liberalizations to the 2013-2014 trawl RCA boundaries be implemented through a notice and comment rulemaking rather than through a single Federal Register notice. Therefore, the Council reconsidered and refined its recommendation for changes Start Printed Page 56642to the trawl RCA at its April 2013 meeting.

After considering performance of the rationalized fishery in the last two years and how the RCA boundaries have varied through time, the Council recommended reducing the trawl RCA between 48°10′ N. lat. and 40°10′ N. lat. to the area between the boundary line approximating the 100 fathom (fm) (183-m) depth contour and the boundary line approximating the 150 fm (274-m) depth contour beginning in November 2013 and for all of 2014, or until revised through inseason action (Table 1). Initial trawl RCA boundaries for 2015-2016 will likely be developed through the 2015-2016 harvest specifications and management measures process. The RCA boundary lines approximate depth contours and are defined by latitude and longitude coordinates in Federal regulations at 50 CFR 660.71-74. Although the lines are generalized approximations of depth, the trawl RCA is not defined by actual depth contours and could close areas deeper or shallower than the actual depths indicated.

Specifically, this proposed rule would change the trawl RCA boundaries that are found in Table 1 (North), subpart D, as follows: (1) Between 48°10′ N. lat. and 40°10′ N. lat., from a shoreward boundary line approximating 75 fm (137-m) to a line approximating 100 fm (183-m) during in periods 1, 2, and 6; (2) between 45°46′ N. lat. and 40°10′ N. lat., from a seaward boundary line approximating 200 fm (366-m) to a line approximating 150 fm (274-m), during periods 1-6 (note that the “modified 200 fm (366-m)” line, which is a version of 200 fm (366-m) line modified to increase access to stocks such as petrale sole, is currently in place in periods 1 and 6), and; (3) between 48°10′ N. lat. and 45°46′ N. lat., from a seaward boundary line approximating the modified 200 fm (366-m) to a line approximating 150 fm (274-m), during period 1.

Table 1—Proposed Trawl RCA Boundaries Between 48°10′ N. Lat. and 40°10′ N. Lat., as Recommended by the Council in April 2013

Jan-FebMar-AprMay-JunJul-AugSep-OctNov-Dec
48°10′ N. lat.-45°46′ N. lat100 fm line—150 fm line.
45°46′ N. lat.-40°10′ N. lat100 fm line—150 fm line.

The proposed change to open the area shoreward of the trawl RCA, between the 75 fm (137-m) line to the 100 fm (183-m) line, will provide additional harvest opportunities closer to shore, which could reduce fuel costs incurred from transiting to deeper-water fishing grounds, and potentially improve the at-sea safety for groundfish bottom trawl vessels and their crews. The shoreward boundary change would also provide additional access to lingcod, Pacific cod and yellowtail rockfish and would likely have a favorable economic impact to groundfish fishing vessels and to businesses and ports where groundfish are landed. The proposed change to open areas seaward of the trawl RCA, between the 150 fm (274-m) line and the 200 fm (366-m) line, will shorten the distance vessels must travel to harvest underutilized slope species such as Dover sole, slope rockfish, and other flatfish species and should also have beneficial economic effects. Finally, the boundary changes could simplify management and enforcement by creating a coast-wide 100 fm (183-m) to 150 fm (274-m) closure.

NMFS and the Council assessed the risks of exceeding the trawl allocation or the annual catch limit (ACL) for any overfished species under the proposed action. Based on an analysis of observed bycatch rates (amount of overfished species caught proportionate to the amount of target species) from the years 2006-2010, increases in bycatch rates for canary rockfish, darkblotched rockfish and Pacific ocean perch would be expected when these areas are opened. However, harvest in 2011 and 2012, the first two years of the shorebased IFQ program, did not exceed 50 percent of the trawl allocation for the four overfished rockfish species likely to be impacted by this action. In addition, based on 2011 observer data documenting the depth, latitude, frequency and magnitude of overfished species catch in the first year of the shorebased IFQ program, the probability of an extreme catch event, or “disaster tow”, i.e. one tow that it would lead to exceeding the IFQ program allocation, is relatively low assuming similar fishing behavior as during 2011 and 2012. The analysis showed that tows harvesting more than 1 percent of the trawl allocation were rare, and none exceeded 2 percent.

The combined analysis of pre-IFQ bycatch rates, haul-level IFQ observer data, and aggregate IFQ catch data for overfished species illustrates that while bycatch or encounter rates are likely to increase to some degree with the proposed boundary changes, these moves are unlikely to result in increases in catch of rebuilding species to such a degree that it would result in the fleet exceeding their annual allocations. Harvest of overfished species in the Shorebased IFQ Program has been well below the allocations, likely, in part, due to individual accountability and incentives to keep harvest of overfished species low. Given the low harvest levels of overfished species relative to the trawl allocation, even if one or more rare, extremely high single catch events were to occur, it is very unlikely that it would cause the trawl allocation to be exceeded. Moreover, IFQ catch data are available in near real-time and inseason changes to management measures could be considered as needed to ensure catch remains below the trawl allocation and below the ACLs.

In addition to the proposed trawl RCA boundaries, NMFS is considering alternative boundaries that are somewhat different from what the Council recommended in April 2013. The alternative trawl RCA boundaries are described below. NMFS intends to take into consideration further comments and recommendations from the Council, as well as comments from Council advisory bodies, industry and the public prior to making a final decision regarding the boundaries for the trawl RCA between 48°10′ N. lat. and 40°10′ N. lat. for 2013-2014.

Alternative Boundaries

During development of the environmental assessment for this action, NMFS explored an alternative set of trawl RCA boundaries. The alternative trawl RCA boundaries would be the same as the proposed trawl RCA boundaries except that they would keep closed the area between the boundary line approximating the 150 fm (274-m) depth contour and the boundary line approximating the modified 200 fm (366-m) depth contour off Southern Oregon and Northern California; an area that has been largely closed since 2004 and that would be opened under the initial recommendations of the Council from its April 2013 meeting. This Start Printed Page 56643alternative set of trawl RCA boundaries carries forward the intent of the Council to open additional fishing areas, while keeping closed the areas that have been essentially closed to groundfish bottom trawling since 2004 (with the only exception being an opening for one two-month period in 2007 between 45°03′ N. lat. and 45°46′ N. lat.).

The alternative trawl RCA boundaries that NMFS is considering and is soliciting public comment on would be identical to the proposed boundaries between 48°10′ N. lat. and 45°46′ N. lat. However, between 45°46′ N. lat. and 40°10′ N. lat., the alternative would open shoreward areas, the same as the proposed boundaries, but would change the seaward boundary to a year-round modified 200 fm (366-m) line. Relative to current regulations in Table 1 (North), subpart D, the alternative RCA boundaries would: Shift the shoreward boundary line between 48°10′ N. lat. and 40°10′ N. lat. from the 75 fm (137-m) line to the 100 fm (183-m) line during periods 1, 2, and 6; shift the seaward boundary line between 48°10′ N. lat. and 45°46′ N. lat. from the modified 200 fm (366-m) line to the 150 fm (274-m) line during period 1 (January-February); and shift the seaward boundary line between 45°46′ N. lat. and 40°10′ N. lat. from the 200 fm (366-m) line to the modified 200 fm (366-m) line during periods 2-5. These alternative trawl RCA boundaries were designed to take effect in November 2013 and continue until subsequently revised through an inseason action. Initial trawl RCA boundaries for 2015-2016 will likely be developed through the 2015-2016 harvest specifications and management measures process.

Table 2—Alternative Trawl RCA Boundaries Between 48°10′ N. Lat. and 40°10′ N. Lat., Considered by NMFS

Jan-FebMar-AprMay-JunJul-AugSep-OctNov-Dec
48°10′ N. lat.-45°46′ N. lat100 fm line—150 fm line.
45°46′ N. lat.-40°10′ N. lat100 fm line—modified 200 fm line.

The alternative trawl RCA boundaries being considered are expected to also have a favorable economic impact on groundfish fishing vessels and for businesses and ports where groundfish are landed. However, the benefits would not be as high, particularly between 45°46′ N. lat. and 40°10′ N. lat., because smaller changes would be made to open seaward areas between 45°46′ N. lat. and 40°10′ N. lat. Accordingly, the potential cost and safety benefits and the increased access to target stocks on the slope would be somewhat reduced as compared to the proposed boundaries.

The alternative trawl RCA boundaries would open less area seaward of the current RCA than the proposed trawl RCA boundaries; therefore, any increased impacts to overfished species by opening new fishing areas are expected to be lower in frequency and magnitude under the alternative trawl RCA boundaries, particularly for slope species, than under the proposed action. However, as indicated above, the proposed boundaries present little risk with respect to overfished species catch.

Impacts to Benthic Habitat

The Council recommended proposed boundaries and the additional alternative being considered would retain all other existing Federal areas that restrict or prohibit fishing by various gear types, such as the essential fish habitat conservation areas established through Amendment 19 to the Groundfish FMP (71 FR 27408, May 11, 2006). In addition, the proposed rule would not modify any existing trawl gear requirements. Trawl RCAs were established to minimize catch of overfished species while still allowing the harvest of target stocks to the extent possible. Despite the fact that the trawl RCAs were not established to serve as habitat protection, the seaward areas between 45°46′ N. lat. and 40°10′ N. lat., between the 150 fm (274-m) and modified 200 fm (366-m) line have largely been closed since 2004. The environmental assessment for this action indicates that this is the only large-scale area that would be opened under the proposed boundaries where benthic habitats may have, to some extent, recovered from previous groundfish bottom trawling impacts. The draft environmental assessment can be found at www.pcouncil.org. Even though this area has been closed to groundfish bottom trawling, it is open to vessels fishing groundfish and non-groundfish with longline and pot gears and to other fishing and non-fishing activities that may impact benthic habitat. The Council and NMFS are currently undertaking a review of the 2006 groundfish EFH designations. Regardless of the final trawl RCA boundary modifications resulting from this proposed rule, the Council and NMFS retain the ability to modify existing EFH designations and closures as a result of the EFH review should it be deemed warranted and practicable.

The Council will consider the alternative RCA boundaries described above at its September 12-17, 2013 meeting in Boise, Idaho (www.pcouncil.org). NMFS encourages public participation, both by providing comments on this proposed rule through the methods described under ADDRESSES, and through participation at the Council's September meeting. Specifically, NMFS encourages industry to provide public comments regarding the effects that the proposed trawl RCA boundaries compared to the alternative trawl RCA boundaries might have on future fishing opportunities and business plans. NMFS also encourages the general public and non-governmental organizations to provide comments regarding the proposed trawl RCA boundaries and the alternative trawl RCA boundaries that are described in this proposed rule.

Classification

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.

A draft Environmental Assessment (EA) was prepared for this action. The draft EA includes socio-economic information that was used to prepare the RIR and IRFA. A copy of the draft EA is available online at www.pcouncil.org.

A Regulatory Impact Review (RIR) was prepared on the action in its entirety and is included as part of the initial regulatory flexibility analysis (IRFA) on the proposed regulatory changes. The IRFA and RIR describe the impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the IRFA is available from NMFS (see ADDRESSES) and a summary of the IRFA, per the requirements of 5 U.S.C. 603(a), follows:

This proposed action revises the bimonthly boundaries of the trawl RCA. Start Printed Page 56644This area is currently closed to vessels fishing groundfish with bottom trawl gear. This rule affects the limited entry bottom trawl sector managed under the Pacific Coast Groundfish FMP. The purpose of these regulations is to make short term reductions in the size of the trawl RCA beginning in November 2013 and for all of 2014, or until revised through inseason action. Initial trawl RCA boundaries for 2015-2016 will likely be developed through the 2015-2016 harvest specifications and management measures process. By reducing the size of the RCA, trawlers will have a better chance of harvesting more of their IFQ pounds. The Council and NMFS designed the RCA to reduce bycatch of overfished species. However, the RCA was established before implementation of IFQs. Prior to the IFQ program, the fleet fished under fleet wide trip limits, and there were occasional overages in the harvests of overfished rockfish. Such overages threatened the entire sector. Under IFQs, the catch of bycatch species has decreased significantly. Participants now fish within their individual quotas and have incentives to reduce bycatch. If they exceed an individual species quota, they cannot return to fishing within the year unless they purchase quota pounds from other fishermen. Many individual participants have formed risk-pools to help minimize the bycatch of overfished species or to minimize the chance they will need to shut down for the year if they exceed their individual allocations. They are sharing real time information on bycatch. The Risk Pool assesses penalties on members that violate risk-pool regulations. Therefore, there is not as strong a need for a large RCA as a means to reduce bycatch. This rule proposes alternatives that decrease the size of the RCA because participants have shown, under the IFQ Program, that they have reduced their bycatch of overfished species.

All catch of IFQ species, retained or discarded, must be covered by equivalent quota pounds, and participants are subject to a 100 percent monitoring requirement that includes at-sea observers and dockside catch monitors. Accordingly, fishermen are individually accountable for their catch, including any catch of overfished species. Additionally, beginning in 2014, quota shares will become transferrable and this might promote higher utilization of target species quota pounds.

Since the implementation of the program, catch of many overfished species has declined and revenues increased in 2011. In 2012 non-whiting revenue dropped slightly, most likely due to decreases in sablefish prices. Depending on the target species, the amount of fish harvested primarily depends not on available markets but rather on the available amount of bycatch species. In the 2012 shorebased IFQ program, catch of several marketable target species was well below the available shorebased trawl allocation. Over 33 million pounds of flatfish, including Dover sole, went unharvested in 2012. Over 5.5 million pounds of Pacific cod and lingcod went unharvested in 2012. For rockfish, over 6.7 million pounds of minor shelf, minor slope and yellowtail rockfish went unharvested. Total groundfish landed by bottom trawl gear was up slightly in 2012, at 101 percent of 2011 levels (40.9 million lbs versus 40,6 million lbs, respectively). Aggregate attainment (the difference between the total shorebased trawl harvests and the shorebased trawl allocation) of all species categories, other than Pacific whiting, increased by five percent in 2012, to 29 percent, from 24 percent in 2011. Revenue in 2012 maintained 92 percent of 2011 levels (30.4 million in 2012 versus 32.9 million).

NMFS considered three alternative trawl RCA boundary configurations, as described above: The current trawl RCA boundaries for 2013 and 2014 (no action), the Council recommended proposed trawl RCA boundaries between 48°10′ N. lat. and 40°10′ N. lat. (Alternative 1, Table 1), and alternative trawl RCA boundaries between 48°10′ N. lat. and 40°10′ N. lat. added by NMFS (Alternative 2, Table 2).

The amount of increased catch and reduced costs created by the proposed alternative is not known. Given available data and models, NMFS cannot qualitatively predict the increased catch and reduced costs by the proposed changes, although the qualitiative impacts are clear. The regulatory changes associated with Alternative 1 and Alternative 2 will have positive economic effects as discussed above—reduced fuel, improved safety, and increased access to important target species. Overall, the most likely potential impacts are higher attainments of the trawl allocations than would be expected under the No-Action alternative. Alternative 2 is more restrictive compared to Alternative 1; Alternative 2 opens some areas that have been intermittently closed, but not as much new area as Alternative 1.

This rulemaking directly affects bottom trawlers participating in the IFQ fishery. To fish in the IFQ fishery, the vessel must have a vessel account. As part of this year's permit application processes for the non-tribal fisheries, applicants indicate if they are ”small” business based on a review of the Small Business Administration (SBA) size criteria. These criteria have recently changed. On June 20, 2013, the SBA issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398, June 20, 2013). The rule increased the size standard for Finfish Fishing from $ 4.0 to 19.0 million, for Shellfish Fishing from $ 4.0 to 5.0 million, and for Other Marine Fishing from $4.0 to 7.0 million (Id. at 37400-Table 1). Based on the new size standard ($19 million), NMFS reassessed those businesses considered large under the old size standard ($4 million) based on information provided by these companies under the NMFS Northwest Fisheries Science Center's Economic Data Collection Program. After taking into account NWFSC economic data, NMFS permit and ownership information, PacFIN landings data for 2012, and affiliation between entities, NMFS estimates that there are 66 entities affected by these proposed regulations, of which 56 are “small” businesses. NMFS believes that this rule will have a positive economic impact on small entities and will not have significant adverse economic impacts on a substantial number of small entities.

This proposed rule was developed after meaningful consultation and collaboration, through the Council process, with the tribal representative on the Council.

No Federal rules have been identified that duplicate, overlap, or conflict with the proposed action. Public comment is hereby solicited, identifying such rules. A copy of this analysis is available from NMFS (see ADDRESSES).

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

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List of Subjects in 50 CFR Part 660

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Dated: September 10, 2013.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, performing the functions and duties of the Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

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PART 660—FISHERIES OFF WEST COAST STATES

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

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Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

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2. Table 1 (North) to part 660, subpart D, is revised to read as follows:

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[FR Doc. 2013-22359 Filed 9-12-13; 8:45 am]

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