[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Proposed Rules]
[Pages 29104-29106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11253]



[[Page 29104]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 071106669-7824-02]
RIN 0648-AU26


Fisheries Off West Coast States; Coastal Pelagic Species Fishery; 
Amendment 12 to the Coastal Pelagic Species Fishery Management Plan

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 issues this proposed rule to implement Amendment 12 to 
the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) which 
would provide protection for all species of krill off the West Coast 
(i.e., California, Oregon and Washington). This rule would prohibit the 
harvest of all species of krill by any fishing vessel operating in the 
Exclusive Economic Zone (EEZ) off the West Coast, and would also deny 
the use of exempted fishing permits to allow krill fishing.

DATES: Comments must be received by June 19, 2008.

ADDRESSES:  You may submit comments on this proposed rule identified by 
``I.D. 012607A-PR'' by any of the following methods:
     Federal e-Rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include the I.D. number in 
the subject line of the message.
     Mail: Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
     Fax: (562)980-4047
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of Amendment 12, which includes an Environmental Assessment/
Initial Regulatory Flexibility Analysis/Regulatory Impact Review, are 
available from Donald O. McIssac, Executive Director, Pacific Fishery 
Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR 
97220-1384.

FOR FURTHER INFORMATION CONTACT: Joshua B. Lindsay, Sustainable 
Fisheries Division, NMFS, at 562-980-4034 or Mike Burner, Pacific 
Fishery Management Council, at 503-820-2280.

SUPPLEMENTARY INFORMATION: The CPS fishery in the EEZ off the West 
Coast is managed under the CPS FMP, which was developed by the Council 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). The CPS FMP was approved by the Secretary 
of Commerce and was implemented by regulations that can be found at 50 
CFR part 660, subpart I.
    Amendment 12 would add all species of krill as a management unit 
species under the CPS FMP and would place krill under a newly 
established ``prohibited harvest species'' category. This new category 
would differ from the existing ``prohibited species'' definition in the 
FMP because ``prohibited harvest species'' may not be taken by any 
fishery or gear type in the U.S. EEZ. In contrast, ``prohibited 
species'' may not be taken and retained incidentally by CPS fishery 
participants, but are legally harvested under provisions in Federal 
regulations implementing other Pacific Fishery Management Council 
(Council) FMPs.
    As the principal food source for many fish and non-fish species, 
krill are a critical component of the marine ecosystem. Off the West 
Coast krill are important prey for a variety of fish species, including 
many Council managed stocks. Krill are also a principal food source for 
many species of marine mammals and seabirds; some of which are listed 
as threatened or endangered and warrant special efforts for protection 
and recovery. Protecting krill will likely minimize adverse impacts on 
these fish stocks and living marine resources and in turn, help to 
maintain ecological relationships and ensure the long-term health and 
productivity of the West Coast ecosystem. Amendment 12 is an attempt to 
incorporate ecosystem conservation principles into fishery management 
programs by protecting, to the extent practicable, krill resources, 
which are an integral part of that ecosystem.
    At this time, there are no Federal regulations that limit fishing 
for krill in the EEZ. While a krill fishery off the U.S. West Coast 
does not currently exist, NMFS is concerned such a fishery could 
develop and have an adverse impact on other West Coast fish stocks, 
marine mammals, and the ecosystem generally.
    The states of Washington, Oregon, and California prohibit their 
vessels from fishing for krill and prohibit landings of krill into 
their respective ports. However, these prohibitions would not prevent a 
fishery from developing in the West Coast EEZ by vessels from outside 
of the region, as long as landings were not made into a West Coast 
port. A market for krill currently exists in Washington and Oregon, 
where salmon farms use krill products as a supplemental feed. Federal 
(EEZ) waters which lie outside of the state prohibitions on krill 
harvest, may in the future be used for fish farming. These operations 
will likely demand krill as feed stock, and a fishery could develop 
around the needs of these aquaculture facilities. Local krill would be 
an obvious food source, which may significantly increase the likelihood 
of a krill fishery developing within West Coast EEZ waters.
    NMFS is concerned about the impacts of a krill fishery based in 
part on information regarding large-scale krill fishing methods and the 
impacts of existing krill fisheries in other areas. Krill 
concentrations attract marine mammal, bird, and fish predators, and due 
to the trawl-type gear used to catch krill, bycatch and/or disturbance 
of these predators could occur. In the Antarctic krill fishery, there 
is known bycatch of fur seals as well as various sea birds. In British 
Columbia a krill fishery began in 1970 and in 1976 quotas were 
established due to concerns for harvesting a forage species upon which 
salmon and other commercially important finfish depend. An annual catch 
was set at 500 tons with an open season from November to March to 
minimize the incidental catch of larval and juvenile fish.
    In the Antarctic, although krill catches are currently well below 
catch limits, some have questioned whether there is a risk that 
localized, excessive fishing effort might have an impact on land-based 
predators that depend on krill for food. This could be of particular 
concern during the breeding season considering the considerable overlap 
between the krill fishery and breeding areas for penguins and seals in 
the South Atlantic Ocean. Some believe that demand for krill has begun 
to exceed supply in areas of the southwest Atlantic and as a result 
penguins and

[[Page 29105]]

albatrosses might be having difficulties in rearing offspring 
successfully on South Georgia due to this competition for resources.
    NMFS' examination of this action began in September 2004, when 
managers of the Cordell Bank, Monterey Bay, and Gulf of the Farallones 
National Marine Sanctuaries (Sanctuaries) requested that the Council 
consider prohibiting krill fishing in the federal waters portion of the 
three sanctuaries. The Council moved forward with the request 
recognizing the need for a more substantive analysis of the krill 
resource - including an analysis of possible controls that would meet 
the objectives of the requested action. The analysis also considered 
the total distribution and importance of krill throughout waters off 
the West Coast EEZ, not just in sanctuary waters.
    At the November 2004 Council meeting, NMFS presented the Council 
with advice on alternative approaches by which krill fishery controls 
could be implemented. NMFS subsequently prepared an Alternatives 
Analysis that presented information on the various species of krill 
that occur off the West Coast, their productivity (as well as the 
uncertainty of the information available), and the relationship between 
krill and other fish and non-fish species. The analysis also provided 
information on potential mechanisms for achieving control over krill 
fishing in the EEZ as well as evaluated different conservation and 
management measures that could be applied if krill fishing were to be 
permitted.
    The Council discussed the content of the Alternatives Analysis at 
its October 31, 2005, meeting and after receiving recommendations from 
its advisory groups and the public, directed that a draft CPS FMP 
amendment be prepared presenting a preliminary preferred alternative 
for public review and comment. Once completed, the document was 
circulated for public review and comment. Following public testimony at 
its March 2006 meeting the Council adopted Amendment 12 to the CPS FMP.
    The three alternatives that were analyzed for this amendment are as 
follows:

Alternative 1: No Action

    Every assessment of potential management strategies by the Council 
for consideration of implementation by Federal regulation includes a 
``no action'' alternative, as required by National Environmental Policy 
Act (NEPA) implementing regulations and against which other 
alternatives are compared. Under this alternative, NMFS would not take 
action at this time. This would mean that the states' prohibitions on 
landing krill by their vessels would remain in place (see section 3.5 
of Environmental Assessment (EA)), but that a fishery by vessels from 
outside of the region could develop in the EEZ if landings were not 
made into a West Coast port. If a krill fishery developed, the Council 
would have an opportunity to develop conservation and management 
measures in the future.

Alternative 2: Manage Krill Fishing Through Amendment of the CPS FMP 
(Proposed Action)

    Under this alternative, krill (all species) would be added to the 
management unit species of the CPS FMP. Further, a new category of 
management unit species - ``prohibited harvest'' - would be established 
under the FMP. Krill would be placed in that category. This means that 
optimum yield (OY) for krill would be zero, and the target, harvest and 
transhipment of krill would be prohibited. Also, exempted fishing 
permits (EFPs) would not be issued under the EFP procedures of the CPS 
FMP to allow individuals to harvest krill as an exception to the 
prohibition of harvest. These actions would fully achieve the 
objectives of the amendment to the extent practicable, but would not 
account for environmental conditions and the responses of krill and 
other resources to changes in environmental conditions. NMFS recognizes 
that de minimis or trace amounts of krill may be retained by fishermen 
while targeting other species; such inadvertent action is not intended 
to be the subject of this prohibition.

Alternative 3: Prohibit Krill Fishing but Establish a Process for 
Allowing Future Fishing

    This alternative would add krill to the management unit species 
group contained within the CPS FMP as well as initially prohibit 
fishing for krill in the West Coast EEZ (i.e., OY would have been 
zero), but a procedure would be established by which krill fishing in 
the future could be permitted (subject to conditions). That procedure 
would involve such steps as completing the modeling described in 
section 3.1.3.5 of the EA, establishing a firm Maximum Sustainable 
Yield estimate(s), prohibiting the direct harvest of krill but possibly 
setting an initial low harvest allowance for EFPs with a complete 
monitoring and evaluation program.
    NMFS has considered the potential for development of a krill 
fishery and the potentially drastic effects a fishery could have on 
krill resources and on the fish and other species, such as birds and 
mammals, that are dependent on, or that are sensitive to, the abundance 
and availability of krill. NMFS believes it is critical to take 
preventive action at this time to ensure that a krill fishery will not 
develop that could potentially harm krill stocks, and in turn harm 
other fish and non-fish stocks. Therefore, NMFS proposes to Alternative 
2 prohibit krill fishing in the EEZ off the West Coast.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, I 
have determined that this proposed rule is consistent with the CPS FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    The Council and NMFS has prepared an EA for this amendment that 
discusses the impact on the environment as a result of this rule. A 
copy of the EA is available from the Council or NMFS (see ADDRESSES).
    This proposed rule has been determined to be significant for the 
purposes of Executive Order 12866.
    There are no reporting, recordkeeping, or other compliance 
requirements of the proposed rule.
    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 follows:
    A fishing vessel is considered a ``small'' business by the U.S. 
Small Business Administration (SBA) if its annual receipts are not 
in excess of $4.0 million. Since all of the vessels fishing for CPS 
have annual receipts below $4.0 million they would all be considered 
small businesses under the SBA standards. Therefore this rule will 
not create disproportionate costs between small and large vessels/
businesses.
    No small entities would be directly affected if this action were 
taken. There are currently no entities engaged in fishing for krill 
off the West Coast. It is possible that, in the absence of this 
action, a krill fishery could develop, but it is not possible to 
estimate the number of entities (large or small) that might engage 
in such fishing in the future. No criteria for such an evaluation 
were used as no entities (large or small) will be directly affected 
by the proposed action. No entities now fish for krill so no 
entities would be disproportionately affected or suffer reductions 
in profits. No entities now fish for krill so a ``substantial 
number'' of small entities would not be affected.
    NMFS has determined that there will not be a significant 
economic impact to a substantial number of small entities.
    As a result, a regulatory flexibility analysis is not required.

[[Page 29106]]

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: May 14, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 660 as follows:

PART 660--FISHERIES OFF WEST COAST STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  660.502 the definitions of ``Krill'' and ``Prohibited 
harvest species'' are added in alphabetical order to read as follows:


Sec.  660.502  Definitions.

* * * * *
    Krill means all species of euphausiids that occur in the EEZ off 
the West Coast.
* * * * *
    Prohibited harvest species means all krill species in the EEZ off 
the West Coast.
* * * * *
    3. In Sec.  660.505, add paragraph (o) as follows:


Sec.  660.505  Prohibitions.

* * * * *
    (o) Fish for, target, harvest or land a prohibited harvest species 
in any fishery within the EEZ off the West Coast.
[FR Doc. E8-11253 Filed 5-19-08; 8:45 am]
BILLING CODE 3510-22-S