[Federal Register Volume 82, Number 208 (Monday, October 30, 2017)]
[Proposed Rules]
[Pages 50106-50112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23456]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 170627602-7602-01]
RIN 0648-BG98


Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; 
Pacific Coast Groundfish Fishery; Pacific Whiting; Pacific Coast 
Groundfish Fishery Management Plan; Amendment 21-3; Trawl 
Rationalization Program

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes this interim measure to change the management of 
the Pacific whiting at-sea sectors' (i.e., the Mothership (MS) and 
Catcher/Processor (C/P) sectors) allocations for darkblotched rockfish 
and Pacific ocean perch (POP) by managing the allocations as set-asides 
rather than as total catch limits. This rule also proposes regulations 
in accordance with Amendment 21-3 to the Pacific Coast Groundfish 
Fishery Management Plan (PCGFMP) (see electronic access under 
SUPPLEMENTARY INFORMATION). The proposed action would revise 
regulations so that higher than anticipated harvest of darkblotched 
rockfish or POP that exceeds a sector's initial distribution of those 
species would not require automatic closure of one or more of the 
Pacific whiting at-sea sectors. This action is intended to reduce the 
risk of those sectors not attaining their respective Pacific whiting 
allocations based on the incidental catch of darkblotched rockfish or 
POP, when allowing the sector(s) to remain open would not exceed their 
respective annual catch limit (ACLs). This action would not change or 
increase the risk of exceeding darkblotched rockfish or POP ACL, as the 
proposed rule would also allow NMFS to close one or both of the MS and 
C/P sectors via automatic action if the species-specific set-aside 
amounts plus the available reserve for unforeseen catch events, known 
colloquially as the ``buffer,'' are anticipated to be exceeded.

DATES: Comments on this proposed rule must be received no later than 
November 27, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0102 by any of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0102, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: Barry A. Thom, Regional Administrator, West Coast 
Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: 
Miako Ushio.
    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

[[Page 50107]]

Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Miako Ushio, phone: 206-526-4644, or 
email: <a href="/cdn-cgi/l/email-protection#187571797377366d6b7071775876777979367f776e"><span class="__cf_email__" data-cfemail="2b46424a4044055e584342446b45444a4a054c445d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This proposed rule is accessible via the Internet at the Office of 
the Federal Register Web site at https://www.federalregister.gov. 
Background information and documents are available at the NMFS West 
Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html and at the Pacific Fishery Management 
Council's Web site at http://www.pcouncil.org/groundfish/fishery-management-plan/groundfish-amendments-in-development/. On September 27, 
2017, NMFS published a notice of availability of Amendment 21-3 to the 
PCGFMP (82 FR 44984). Consistent with requirements of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
NMFS must make a decision to approve, disapprove, or partially approve 
the amendment by December 26, 2017. Comments on the approvability of 
the amendment must be submitted to NMFS by November 26, 2017.

Background: Fishery

    Bycatch of rockfish species in the Pacific whiting fishery occurs 
at very low rates, but sporadically and unpredictably. Regulations at 
50 CFR 660.55 address the allocation of these groundfish. Darkblotched 
rockfish and POP are caught almost exclusively by vessels in the 
shorebased Individual Fishing Quota (IFQ) and at-sea Pacific whiting 
sectors of the groundfish fishery. NMFS declared both species 
overfished in 2000 and 1999, respectively, and both stocks are 
currently managed under rebuilding plans as a result. Populations of 
both species have shown dramatic improvement in recent years. 
Darkblotched rockfish was declared rebuilt in June 2017, and a draft 
2017 stock assessment indicates that POP may be rebuilt. They are 
currently managed as allocations, and NMFS automatically closes a 
fishery sector when it has reached its allocation of either species.
    In recent years, both at-sea sectors of the Pacific whiting fishery 
have exceeded their initial annual allocation of darkblotched rockfish 
(C/P sector in 2011, and the MS sector in 2014). The latter resulted in 
an emergency Pacific Fishery Management Council (Council) meeting in 
order to re-open the fishery. The risk of an inseason closure of these 
sectors remains high, although the rebuilding ACLs of these rockfish 
are far from being reached. For example: The most recent fishing 
mortality estimates by NMFS' Northwest Fisheries Science Center 
indicate that 44 and 38 percent of the darkblotched rockfish and POP 
ACLs, respectively, were caught in 2015. While harvest of these species 
at a level below the ACL may rebuild stocks more quickly, there is a 
negative socioeconomic impact from preventing harvest of Pacific 
whiting, as intended in the PCGFMP.

Background: Current Allocations Under Amendment 21

    The Council established allocations of darkblotched rockfish and 
POP for the at-sea sectors in Amendment 21 to the PCGFMP. When the 
Council considered allocation of these species, the analysis only 
incorporated data on catch through 2005, and took the overfished status 
of the species into account when they set up the allocation structure. 
Ten years of additional data on bycatch in the at-sea sectors are now 
available. Additionally, six full years of the Shorebased IFQ Program 
(which was implemented in 2011, 75 FR 60868) fishery information is 
available. This new information indicates that the stocks of both 
species are currently much healthier than they were at the time 
Amendment 21 was implemented.
    The Council's Amendment 21 allocation recommendation was based, in 
part, on the idea that the C/P and MS sectors could avoid early 
closures by moving to areas of lower rockfish encounter rates if they 
were approaching a bycatch allocation. However, experience has shown 
that this assumption was likely too simplistic. Despite the mitigating 
measures enacted by the C/P and MS coops, darkblotched rockfish bycatch 
remains particularly variable with the potential for rapid 
accumulation. The 2014 closure of the MS sector provides an 
illustration; closure occurred after six hauls caught 4.5 mt of 
darkblotched rockfish, nearly 75 percent of their 2014 allocation, with 
the bulk coming from three of the hauls. Some of the largest hauls were 
delivered to motherships so closely in time that feedback on the size 
of the catches from observers came too late for the MS coop to 
effectively respond. Prior to this ``lightning strike'' event, the 
sector had made 969 hauls and caught only 2.5 mt of darkblotched 
rockfish. After the sector was re-opened by an emergency meeting of the 
Council, the sector made 330 additional hauls that brought in over 
14,500 mt of Pacific whiting and only 0.1 mt of additional darkblotched 
rockfish. The C/P sector has experienced even more rapid accumulations 
of darkblotched rockfish bycatch, and would have been closed late in 
the 2011 season if unused allocation had not been available from the MS 
sector, which had already completed fishing. These events indicate that 
the current management structure may be adversely impacting the at-sea 
sectors to a greater degree than was anticipated when the Council 
adopted the current allocation structure under Amendment 21, due to 
unpredictability and high volume of bycatch events.

Background: Amendment 21-3

    The Council has discussed a variety of solutions to reducing the 
risk of closure of the Pacific whiting at-sea sectors prior to 
attainment of their Pacific whiting allocations, such as allowing 
transfer of rockfish quota between sectors, but it determined that 
those solutions are too complex to be analyzed and implemented in a 
timely manner. At its September 2016 meeting, the Council recommended 
the interim measure of amending the PCGFMP and implementing revised 
regulations, so that the amounts of darkblotched rockfish and POP 
allocated to the C/P and MS sectors are managed as set-asides rather 
than as total catch limits. The Council also recommended giving NMFS 
inseason authority to automatically close one or both of the C/P and MS 
sectors in the event the species-specific set-aside amounts plus the 
available reserve for unforeseen catch events, known colloquially as 
the ``buffer,'' are anticipated to be exceeded.
    This action would not revise allocations between sectors, which 
were set by Amendment 21 to the PCGFMP, and is intended to be an 
interim solution to address the immediate needs of the C/P and MS 
sectors. Long-term solutions are being reviewed by a Council-appointed 
Community Advisory Board as part of the 5-year review of the trawl 
rationalization program. A long-term solution to address the needs of 
the C/P and MS sectors will focus specifically on fairly and equitably 
revising the allocation between the trawl sectors, and among all the 
groundfish fishery sectors, while leaving any applicable stock 
rebuilding plans unaffected.

Intent of the Action

    This proposed action is intended to substantially reduce the risk 
of the Pacific whiting at-sea sectors not attaining their respective 
Pacific whiting

[[Page 50108]]

allocations based on the incidental catch of darkblotched rockfish or 
POP, when allowing the sector(s) to remain open would not exceed ACLs 
for these rebuilding stocks. It would revise regulations so that higher 
than anticipated harvest of darkblotched rockfish or POP that exceeds 
the initial distribution of those species to the at-sea sectors will 
not require automatic closure of one or more of the at-sea sectors.
    The proposed rule would also allow NMFS to close one or both of the 
C/P and MS sectors of the Pacific whiting fishery via automatic action 
when the set-aside for that sector, plus the available reserve for 
unforeseen catch events, is reached or is expected to be reached for 
either darkblotched rockfish or POP. Because of near real-time 
monitoring by the C/P and MS Coop Programs, and the ability of those 
programs to respond quickly to changing fishery conditions, closures 
would occur before allocations to other fisheries or the ACLs are 
reached, thus limiting the potential effects and precluding potential 
negative biological and socioeconomic impacts of the proposed action.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, NMFS 
has preliminarily determined that this proposed rule is consistent with 
the Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment. In making its final determination, 
NMFS will take into account the complete record, including the data, 
views, and comments received during the comment period.
    NMFS has determined that the proposed action would not have a 
significant effect, individually or cumulatively, on the human 
environment and does not involve any extraordinary circumstances listed 
in The National Oceanic and Atmospheric Administration (NOAA) Policy 
and Procedures for Compliance with the National Environmental Policy 
Act and Related Authorities (NOAA Administrative Order (NAO) 216-6A and 
the Companion Manual for NAO 216-6A). For purposes of review under the 
National Environmental Protection Act, the proposed action is not part 
of any larger action, and can be reviewed independently. Furthermore, 
NMFS determined that the proposed action may appropriately be 
categorically excluded from the requirement to prepare either an 
environmental assessment or environmental impact statement, in 
accordance with the Companion Manual for NAO 216-6A.
    Under the Regulatory Flexibility Act (RFA), an agency does not need 
to conduct an Initial Regulatory Flexibility Act Analysis or Final 
Regulatory Flexibility Act Analysis if a certification can be made that 
the proposed rule, if adopted, will not have a significant adverse 
economic impact on a substantial number of small entities, as defined 
below (5 U.S.C. 601). The Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities as described in this document.
    The Small Business Administration has established the following 
size criteria for entities classified under North American Industry 
Classification System (NAICS). Standards are expressed either in number 
of employees or annual receipts in millions of dollars. The number of 
employees or annual receipts indicates the maximum allowed for a 
concern and its affiliates to be considered small (13 CFR 121.201). A 
fish and seafood merchant wholesaler primarily engaged in servicing the 
fishing industry is a small business if it employs 100 or fewer 
persons, on a full-time, part-time, temporary, or other basis, at all 
its affiliated operations worldwide (NAICS 424460). A business 
primarily engaged in seafood product preparation and packaging is a 
small business if it is independently owned and operated, not dominant 
in its field of operation, and employs 750 or fewer persons on a full 
time, part time, temporary, or other basis, at all its affiliated 
operations worldwide (NAICS 311710). For purposes of this action, NMFS 
West Coast Region is applying the seafood processor standard to C/Ps 
and MS processor ships, which earn the majority of their revenue from 
selling processed seafood product. Under SBA size standards, a 
nonprofit organization is determined to be a small entity if (1) it is 
not dominant in its field of operation; and (2) for environmental, 
conservation, or professional organizations if combined annual receipts 
are $15 million or less (NAICS 813312, 813920), and for other 
organizations if combined annual receipts are $7.5 million or less 
(NAICS 813319, 813410, 813910, 813930, 813940, 813990). For RFA 
purposes only, NMFS has established a small business size standard for 
businesses, including their affiliates, whose primary industry is 
commercial fishing; a business primarily engaged in commercial fishing 
(NAICS 11411) is classified as a small business if it is independently 
owned and operated, is not dominant in its field of operation 
(including affiliates), and has combined annual receipts not in excess 
of $11 million for all its affiliated operations worldwide (50 CFR 
200.2).
    For the purposes of the RFA, small governmental jurisdictions such 
as governments of cities, counties, towns, townships, villages, school 
districts, or special districts are considered small jurisdictions if 
their populations are less than 50,000 (5 U.S.C. 601).
    A description and estimate of the number of small entities to which 
the rule applies and economic impacts on small entities, by entity size 
and industry.
    Four companies own seven permitted mothership vessels. Each year, 
three to six MS vessels participate in the Pacific whiting fishery. The 
average number of crew on each MS vessel is 104 individuals. When 
considering operations in Alaska, none of the MSs would be considered 
small businesses.
    The 17 catcher vessels that participated in the mothership coop 
spend about 30 percent of their total annual fishing days processing in 
the Pacific whiting fishery. The majority of their time is spent in the 
Alaska Pollock fishery. Almost 90 percent of the overall round weight 
taken by these vessels is taken in Alaska, and approximately 11 percent 
is taken in the Pacific whiting fishery.
    Three companies own nine permitted C/P fleet vessels. C/Ps are 
large vessels with an average crew of 131 individuals.
    Vessels in the C/P fleet spend about 20 percent of their total days 
fishing in the Pacific whiting fishery and 80 percent in the Alaska 
Pollock fishery. About 90 percent of the total round weigh taken by the 
C/Ps is taken in Alaska, and approximately 10 percent is taken in the 
Pacific whiting fishery. When considering operations from Alaska, none 
of the C/Ps would be considered small businesses.
    An explanation of the criteria used to evaluate whether the rule 
would impose ``significant impacts'' on small entities.
    The proposed action is primarily administrative in nature, as it 
does not change the ACLs for either the Pacific whiting at-sea sectors 
or the allocations levels of darkblotched rockfish and POP. This action 
is not expected to significantly reduce profit for a substantial number 
of small entities, because there are no associated compliance 
requirements or costs.
    An explanation of the criteria used to evaluate whether the rule 
would impose

[[Page 50109]]

impacts on``a substantial number'' of small entities.
    Two MS permit/processor owning companies self-identified on the 
most recent (2016) permit renewal as small businesses, and the other 
two identified as not being small businesses. All three companies 
owning C/P permits and vessels responded as not being small entities on 
the most recent (2016) permit renewal form. Of the 35 MS catcher vessel 
permits, 34 were registered to vessels with the MS catcher vessel 
endorsement. 27 MS catcher vessel endorsed permits were owned by 22 
companies that self-identified as small entities, and the other 8 were 
owned by 5 companies that self-identified as not being small entities.
    A description of, and an explanation of the basis for, assumptions 
used.
    Data collected from the trawl rationalization program Economic Data 
Collection was used for this analysis.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with this action. There are no reporting, recordkeeping or 
other compliance requirements in the proposed rule.
    Pursuant to Executive Order 13175, this proposed rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the PCGFMP. Consistent with the Magnuson-
Stevens Act (16 U.S.C. 1852(b)(5)), one of the voting members of the 
Pacific Council is a representative of an Indian tribe with Federally 
recognized fishing rights from the area of the Council's jurisdiction.
    This proposed rule would not alter the effects on species listed 
under the Endangered Species Act, or on marine mammals, over what has 
already been considered for the regulations governing the fishery.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: October 24, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 660--FISHERIES OFF WEST COAST STATES

0
 1. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.55, (c)(1)(i) introductory text, and (c)(1)(i)(A) and 
(B) are revised to read as follows:


Sec.  660.55   Allocations.

* * * * *
    (c) * * *
    (1) * * *
    (i) Trawl fishery allocation. The allocation for the limited entry 
trawl fishery is derived by applying the trawl allocation percentage by 
species/species group and area as specified in paragraph (c) of this 
section and as specified during the biennial harvest specifications 
process to the fishery harvest guideline for that species/species group 
and area. For IFQ species other than-darkblotched rockfish, Pacific 
ocean perch, and widow rockfish, the trawl allocation will be further 
subdivided among the trawl sectors (MS, C/P, and IFQ) as specified in 
Sec. Sec.  660.140, 660.150, and 660.160 of subpart D. For darkblotched 
rockfish, Pacific ocean perch, and widow rockfish, the trawl allocation 
is further subdivided among the trawl sectors (MS, C/P, and IFQ) as 
follows:
    (A) Darkblotched rockfish. Distribute 9 percent or 25 mt, whichever 
is greater, of the total trawl allocation of darkblotched rockfish to 
the Pacific whiting fishery (MS sector, C/P sector, and Shorebased IFQ 
sectors). The distribution of allocation of darkblotched rockfish to 
each of these sectors will be done pro rata relative to the sector's 
allocation of the commercial harvest guideline for Pacific whiting. 
Darkblotched rockfish distributed to the MS sector and C/P sector are 
managed as set-asides at Table 2d, subpart C. The allocation of 
darkblotched rockfish to the Pacific whiting IFQ fishery contributes to 
the Shorebased IFQ allocation. After deducting allocations for the 
Pacific whiting fishery, the remaining trawl allocation is allocated to 
the Shorebased IFQ Program.
    (B) Pacific Ocean Perch (POP). Distribute 17 percent or 30 mt, 
whichever is greater, of the total trawl allocation of POP to the 
Pacific whiting fishery (MS sector, C/P sector, and Shorebased IFQ 
sector). The distribution of POP to each sector will be done pro rata 
relative to the sector's allocation of the commercial harvest guideline 
for Pacific whiting. POP distributed to the MS sector and C/P sector 
are managed as set-asides, at Table 2d, subpart C. The allocation of 
POP to the Pacific whiting IFQ fishery contributes to the Shorebased 
IFQ allocation. After deducting allocations for the Pacific whiting 
fishery, the remaining trawl allocation is allocated to the Shorebased 
IFQ Program.
* * * * *
0
 3. In Sec.  660.60, add paragraph (d)(1)(vii) to read as follows:


Sec.  660.60   Specifications and management measures.

* * * * *
    (d) * * *
    (1) * * *
    (vii) Close one or both the MS or C/P sector when the set-aside for 
that sector, described in Table 2d, subpart C, plus the available 
reserve for unforeseen catch events, described in Table 2a, subpart C, 
combined, is reached or is expected to be reached for either 
darkblotched rockfish or Pacific ocean perch.
* * * * *
0
 4. In Sec.  660.150, revise paragraphs (c)(1)(i) and (ii) to read as 
follows:


Sec.  660.150   Mothership (MS) Coop Program.

* * * * *
    (c) * * *
    (1) * * *
    (i) Species with formal allocations to the MS Coop Program are 
Pacific whiting, canary rockfish and widow rockfish;
    (ii) Species with set-asides for the MS and C/P Coop Programs, as 
described in Table 2d, subpart C.
* * * * *
0
 5. In Sec.  660.160, revise paragraphs (c)(1)(i) and (ii) to read as 
follows:


Sec.  660.160   Catcher/processor (C/P) Coop Program.

* * * * *
    (c) * * *
    (1) * * *
    (i) Species with formal allocations to the C/P Coop Program are 
Pacific whiting, canary rockfish, and widow rockfish;
    (ii) Species with set-asides for the MS and C/P Programs, as 
described in Table 2d, subpart C.
* * * * *
0
 5. In Sec.  660 Subpart C, revise Tables 2b and 2d to read as follows:
* * * * *
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[FR Doc. 2017-23456 Filed 10-27-17; 8:45 am]
 BILLING CODE 3510-22-C


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