[Federal Register Volume 79, Number 231 (Tuesday, December 2, 2014)]
[Rules and Regulations]
[Pages 71340-71344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28275]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 130405338-4987-02]
RIN 0648-BC84


Fisheries Off West Coast States; Pacific Coast Groundfish Fishery 
Management Plan; Trawl Rationalization Program; Chafing Gear 
Modifications

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action modifies the existing chafing gear regulations for 
midwater trawl gear. This action includes regulations that affect all 
trawl sectors (Shorebased Individual Fishing Quota Program (IFQ), 
Mothership Cooperative Program (MS), Catcher/Processor Cooperative 
Program (C/P), and tribal fishery) managed under the Pacific Coast 
Groundfish Fishery Management Plan (PCGFMP). Many Pacific whiting 
vessels also fish in the Alaska groundfish fisheries. This action 
establishes chafing gear restrictions for the Pacific Coast groundfish 
fishery that are more compatible with those for the Gulf of Alaska 
groundfish and Bering Sea and Aleutian Islands groundfish fisheries.

DATES: Effective January 1, 2015.

ADDRESSES: NMFS prepared a Final Regulatory Flexibility Analysis 
(FRFA), which is summarized in the Classification section of this final 
rule. NMFS also prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for the proposed rule. Copies of the IRFA, FRFA and the Small 
Entity Compliance Guide are available from William W. Stelle, Jr., 
Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way 
NE., Seattle, WA 98115-0070; or by phone at 206-526-6150. Copies of the 
Small Entity Compliance Guide are available on the West Coast Region's 
Web site at http://www.westcoast.fisheries.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Becky Renko, 206-526-6110; (fax) 206-
526-6736; [email protected].

SUPPLEMENTARY INFORMATION: This final rule modifies the chafing gear 
regulations that apply to all midwater trawl gear. Chafing or chafer 
panels are webbing or other material attached to the codend to minimize 
damage from wear caused by the codend rubbing against the stern ramp 
and trawl alley during net retrieval and from contact with the ocean 
floor. Midwater trawl gear is effective for targeting groundfish 
species that ascend above the ocean floor and is not designed to make 
frequent contact with the ocean floor. The only gear allowed for the 
targeting of Pacific whiting during the Pacific whiting primary seasons 
for the shorebased IFQ program, MS coop program, and CP coop program is 
midwater trawl gear. Midwater trawl gear is also used in the shorebased 
IFQ program to target non-whiting species such as widow, yellowtail, 
and chilipepper rockfish. A proposed rule was published in the Federal 
Register on March 19, 2014 (79 FR 15296), followed by a correction 
which was published on April 4, 2014 (79 FR 18876).
    During the proposed rule comment period, NMFS specifically sought

[[Page 71341]]

comments on the proposed method of attachment for chafing gear, 
including the benefits and effects relative to current minimum mesh 
size restrictions and the prohibition on double-walled codends. Only 
single-walled codend are allowed in Pacific Coast groundfish 
regulations and this rule does not change that restriction. A single-
walled codend is constructed of a single wall of webbing knitted with 
single or double-bar mesh (double twine tied into a single knot). A 
double-walled codend is constructed of two walls (layers) of webbing. 
The prohibition on the use of double-walled codends was developed by 
the Council in the 1990s to ensure the success of minimum mesh size 
restrictions. Minimum mesh size restrictions are intended to reduce the 
catch of juvenile and small unmarketable fish (groundfish and non-
groundfish species). To prevent chafing gear from being used to create 
the effect of a double-walled codend, NMFS identified an interest in 
adding regulatory language to the final rule to further clarify the 
existing regulatory prohibition of double-walled codends (Sec.  
660.130(b)(1)).
    This rule also includes minor technical revisions to related 
regulatory text. Section 660.11, General definitions, contains basic 
descriptions of small footrope, large footrope and midwater trawl gear 
while the in-depth descriptions of these trawl gears found in Sec.  
660.130. Modifications at Sec.  660.130 eliminate redundancy with Sec.  
660.11 and increase clarity.

Response to Comments

    One letter of comment was received from an individual representing 
members of the Pacific whiting industry who are directly affected by 
the rulemaking.
    Comment 1: NMFS states in the proposed rule that they are 
considering clarifying the chafing gear regulation to prevent creating 
an incentive to use chafing gear to make a double-walled codend. 
However, NMFS provides no information in the proposed rule about how 
the proposed chafing gear regulations relate to the creation of a 
double-walled codend. To the contrary, the regulations as proposed do 
not create an incentive for fishermen to fashion a double-walled codend 
because the chafing gear can only cover up to 75 percent of the codend 
and the top panel of the codend will remain open. Putting aside the 
fact that the entirety of the codend will not be covered with chafing 
gear, NMFS appears to request input about the potential for the 
creation of a double-walled codend because this has the potential to 
increase the catch of smaller fish and incidental catch of non-whiting 
species. However, doing this in the Pacific whiting fishery is counter 
intuitive because maximizing utilization and minimizing bycatch are 
standard practices. Similarly, NMFS states that the proposed rule might 
create an incentive for bottom contact with the codend. Given the 
fishing dynamics of a whiting midwater trawl, this is nearly 
impossible. These are not reasons to justify modification of the 
proposed rule language, especially in regards to the catcher/processor 
sector of the whiting fishery.
    The proposed rule language most closely matches current industry 
practice. Any deviation from the PFMC recommendation will cause 
disruption and economic hardship to the fleet with no conservation or 
other benefit to fisheries or habitat. The rule language as proposed is 
well justified and should be implemented as soon as possible.
    Response: When the chafing gear provisions were originally 
implemented, the Council's stated intent was to maintain the minimum 
mesh size restrictions so small fish could escape. The proposed rule 
did not consider changing regulations on minimum mesh size restrictions 
or the required use of single-walled codends (use of double-walled 
codends is prohibited). Therefore, NMFS believes it is necessary to 
maintain the Council's intent for the minimum mesh size restriction and 
double-walled codend prohibition, by simply adding regulatory text to 
state that chafing gear may not be used to create a double-walled 
codend.
    The request for comment applied to all midwater trawl gear 
regardless of the target species and was not specific to vessels 
targeting Pacific whiting. With the growth in non-whiting midwater 
fishing, gear configurations could differ from those used in the 
Pacific whiting fishery. NMFS is clarifying the regulations so the 
intent of the gear regulations is maintained relative to minimum mesh 
size restrictions and the prohibition on the use of double-walled 
codends.
    The data used in the analysis for this action shows that Pacific 
whiting vessels using midwater trawl gear, including those in the C/P 
sector, make occasional contact with the ocean floor. While NMFS 
recognizes that there is occasional bottom contact by midwater trawl, 
this final rule does not change regulations to address that occasional 
bottom contact.
    With this final rule, NMFS is implementing the Council's 
recommendation for chafing gear and maintaining the Council's intent to 
allow escapement of small fish from the codend of midwater trawl gear. 
The gear restrictions on minimum mesh size and a prohibition on double-
walled codends are existing requirements. All of the changes in this 
final rule either relieve a restriction or further clarify an existing 
restriction. Therefore, these changes would not cause disruption or 
economic hardship.

 Changes From the Proposed Rule

    In the trawl fishery management measures at Sec.  660.130(b)(1) 
pertaining to the trawl codends, clarification is added to prevent 
vessel operators from using chafing gear to create a double-walled 
codend. The Council did not explicitly consider changes to the minimum 
mesh size restrictions or the requirement to use a single walled 
codend. Therefore, clarifications are being made to the regulations to 
preserve the intent of those regulations to allow small fish to escape 
given the changes to chafing gear restrictions.

Classification

    NMFS has made a determination that this action is consistent with 
PCGFMP, the MSA, and other applicable law. To the extent that the 
regulations in this final rule differ from what was deemed by the 
Council, NMFS invokes its independent authority under 16 U.S.C. 
1855(d). In making this determination, NMFS took into account the 
complete record, including the data, views, and comments received 
during the comment period.
    An EA was prepared for this action. The EA is available on the 
Council's Web site at http://www.pcouncil.org/.
    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget (OMB) has 
determined that this rule is not significant.
    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in 
support of this action. The FRFA incorporates the Initial Regulatory 
Flexibility Analysis (IRFA), a summary of the significant issues raised 
by the public comments in response to the IRFA, NMFS' response to those 
comments, relevant analysis contained in the action and its EA, and a 
summary of the analyses in this rule. A copy of the analyses and the EA 
are available from the NMFS (see Addresses). A summary of the IRFA was 
published in the proposed rule for this action and is not repeated 
here. A description of why this action was considered, the objectives 
of, and the legal basis for this rule is

[[Page 71342]]

contained in the preamble to the proposed rule and this final rule and 
is not repeated here.
    In addition to clarifying existing regulations, this rule revises 
the regulations to conform to current industry chafing gear practices 
while increasing the flexibility of vessel owners to make chafing gear 
modifications according to their own individual operations and needs. 
Only one comment was received on the proposed rule (See Response to 
Comments section above.) This comment did not raise any issues or 
concerns related to the IRFA but confirmed that this final rule closely 
matches current industry practice. No changes were made to this final 
rule as a result of the comment.
    This final rule would affect those vessels that use midwater trawl 
gear in Pacific Coast groundfish fisheries. Midwater trawl gear is used 
by catcher/processors, mothership catcher vessels, and vessels that 
deliver to Shoreside processors. According to the Small Business 
Administration (SBA), a business involved in finfish harvesting is a 
small business if it is independently owned and operated, not dominant 
in its field of operation, and has combined annual receipts, not in 
excess of $20.5 million for all its affiliated operations worldwide. 
After taking into account vessels that fish in multiple midwater 
fisheries and their affiliations, NMFS estimates that there are 28 
midwater businesses, 22 of which are small businesses.
    In addition to No Action, two alternatives were considered. The No 
Action Alternative would limit chafing gear to the very end of the 
codend (the last 50 mesh lengths) and 50 percent of the codend's 
circumference via a single panel. Under Alternative 1 (Council 
Preferred Alternative), fishermen would have the option of covering up 
to 100 percent of the length of the codend and up to approximately 75 
percent of the codend's circumference through the use of a single panel 
or multiple panels. Alternative 2A, fishermen would have the option of 
covering up to 100 percent of the length of the codend and up to 50 
percent of the codend's circumference through the use of a single panel 
or multiple panels. Under Alternative 2B, fishermen would have the 
option of covering up to 50 percent of the length of the codend and up 
to 50 percent of the codend's circumference; however, no single panel 
could cover more than 50 meshes of the codend.
    Adoption of any alternative other than the No Action Alternative 
would increase the useful life of the codend by allowing for greater 
protection against abrasion and wear. Currently, most fishermen are 
using gear compliant with Alternative 2B, so there would be no 
additional costs associated with this alternative. The No Action 
Alternative would require vessel owners to remove chafing gear which is 
estimated to be a one-time cost between $5,000 and $10,000. As a 
result, their nets will have the least amount of protection and thus 
have to be replaced more often. Alternative 1 is the Council's 
Preferred Alternative allows fishermen more flexibility and comports 
with the chafing gear currently used by the majority of the fleet that 
fish in both Pacific Coast and Alaska fisheries allowing the same gear 
to be used in both regions. Data in the EA shows that 62 percent of 
Pacific Coast whiting vessels also fished off Alaska between 2004 and 
2010. The codend replacement costs are highest under No Actions and 
lowest under the Council Preferred Alternative. This rule implements 
the Council Preferred Alternative which closely matches current 
industry practice and is not likely to have a significant economic 
impact on any entity, large or small.
    Copies of the Small Entity Compliance Guide prepared for this final 
rule are available on the West Coast Region's Web site at http://www.westcoast.fisheries.noaa.gov/.
    This final rule does not contain a collection-of-information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA).
    Pursuant to Executive Order 13175, this final rule was developed 
after meaningful consultation and collaboration with tribal officials 
from the area covered by the PCGFMP. Under the Magnuson-Stevens Act at 
16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction. The 
proposed regulations, which have a direct effect on the tribes, were 
deemed by the Council as ``necessary or appropriate'' to implement the 
PCGFMP as amended.
    NMFS issued Biological Opinions under the Endangered Species Act 
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 
27, 1993, May 14, 1996, and December 15, 1999, pertaining to the 
effects of the PCGFMP fisheries on Chinook salmon (Puget Sound, Snake 
River spring/summer, Snake River fall, upper Columbia River spring, 
lower Columbia River, upper Willamette River, Sacramento River winter, 
Central Valley spring, California coastal), coho salmon (Central 
California coastal, southern Oregon/northern California coastal), chum 
salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake 
River, Ozette Lake), and steelhead (upper, middle and lower Columbia 
River, Snake River Basin, upper Willamette River, central California 
coast, California Central Valley, south/central California, northern 
California, southern California). These biological opinions have 
concluded that implementation of the PCGFMP is not expected to 
jeopardize the continued existence of any endangered or threatened 
species under the jurisdiction of NMFS, or result in the destruction or 
adverse modification of critical habitat.
    NMFS issued a Supplemental Biological Opinion on March 11, 2006, 
concluding that neither the higher observed bycatch of Chinook in the 
2005 whiting fishery nor new data regarding salmon bycatch in the 
groundfish bottom trawl fishery required a reconsideration of its prior 
``no jeopardy'' conclusion. NMFS also reaffirmed its prior 
determination that implementation of the PCGFMP is not likely to 
jeopardize the continued existence of any of the affected species. 
Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon 
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as 
threatened under the ESA. The 1999 biological opinion concluded that 
the bycatch of salmonids in the Pacific whiting fishery were almost 
entirely Chinook salmon, with little or no bycatch of coho, chum, 
sockeye, and steelhead.
    On January 22, 2013, NMFS requested the reinitiation of the 
biological opinion for listed salmonids to address changes in the 
fishery, including the trawl rationalization program and the emerging 
midwater trawl fishery. The consultation will not be completed prior to 
publication of this rule to modify chafing gear regulations for the 
Pacific whiting fishery. NMFS has considered the likely impacts on 
listed salmonids for the period of time between the final rule and the 
completion of the reinitiated consultation relative to sections 7(a)(2) 
and 7(d) of the ESA. On December 18, 2013, NMFS determined that ongoing 
fishing under the PCGFMP, assuming that the chafing gear modifications 
are implemented in 2014, prior to the completion of the consultation 
would not be likely to jeopardize listed salmonids or result in any 
irreversible or irretrievable commitment of resources that would have 
the effect of foreclosing the

[[Page 71343]]

formulation or implementation of any necessary reasonable and prudent 
alternatives.
    On December 7, 2012, NMFS completed a biological opinion concluding 
that the groundfish fishery is not likely to jeopardize non-salmonid 
marine species including listed eulachon, green sturgeon, humpback 
whales, Steller sea lions, and leatherback sea turtles. The opinion 
also concludes that the fishery is not likely to adversely modify 
critical habitat for green sturgeon and leatherback sea turtles. An 
analysis included in the same document as the opinion concludes that 
the fishery is not likely to adversely affect green sea turtles, olive 
ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific 
right whales, blue whales, fin whales, sperm whales, Southern Resident 
killer whales, Guadalupe fur seals, or the critical habitat for Steller 
sea lions. With this rulemaking, an informal consultation on eulachon 
was initiated on January 21, 2013. NMFS considered whether the 2012 
opinion should be reconsidered for eulachon in light of new information 
from the 2011 fishery and the proposed chafing gear modifications and 
determined that information about the eulachon bycatch in 2011 and 
chafing gear regulations did not change the anticipated extent of 
effects of the action, or provide any other basis to reinitiate the 
December 7, 2012 biological opinion. Therefore, the December 7, 2012 
biological opinion meets the requirements of section 7(a)(2) of the ESA 
and implementing regulations at 50 CFR 402 and no further consultation 
is required at this time.
    On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) 
issued a biological opinion concluding that the groundfish fishery will 
not jeopardize the continued existence of the short-tailed albatross. 
The FWS also concurred that the fishery is not likely to adversely 
affect the marbled murrelet, California least tern, southern sea otter, 
bull trout, nor bull trout critical habitat.
    This rule would not alter the effects on marine mammals over what 
has already been considered for the fishery. West Coast pot fisheries 
for sablefish are considered Category II fisheries under the MMPA's 
List of Fisheries, indicating occasional interactions. All other West 
Coast groundfish fisheries, including the trawl fishery, are considered 
Category III fisheries under the MMPA, indicating a remote likelihood 
of or no known serious injuries or mortalities to marine mammals. On 
February 27, 2012, NMFS published notice that the incidental taking of 
Steller sea lions in the West Coast groundfish fisheries is addressed 
in NMFS' December 29, 2010 Negligible Impact Determination (NID) and 
this fishery has been added to the list of fisheries authorized to take 
Steller sea lions (77 FR 11493, February 27, 2012). On September 4, 
2013, based on its negligible impact determination dated August 28, 
2013, NMFS issued a permit for a period of three years to authorize the 
incidental taking of humpback whales by the sablefish pot fishery (78 
FR 54553, September 4, 2013).

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: November 25, 2014.
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 amended 
as follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 is revised 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.  660.130, paragraph (b) and the introductory text of 
paragraph (c) are revised to read as follows:

Sec.  660.130  Trawl fishery--management measures.

* * * * *
    (b) Trawl gear requirements and restrictions. Trawl nets may be 
fished with or without otter boards, and may use warps or cables to 
herd fish.
    (1) Codends. Only single-walled codends may be used in any trawl. 
Double-walled codends are prohibited. Chafing gear may not be used to 
create a double-walled codend.
    (2) Mesh size. Groundfish trawl gear, including chafing gear, must 
meet the minimum mesh size requirements in this paragraph. Mesh size 
requirements apply throughout the net. Minimum trawl mesh sizes are: 
Bottom trawl, 4.5 inches (11.4 cm); midwater trawl, 3.0 inches (7.6 
cm). Minimum trawl mesh size requirements are met if a 20-guage 
stainless steel wedge, less one thickness of the metal wedge, can be 
passed with only thumb pressure through at least 16 of 20 sets of two 
meshes each of wet mesh.
    (3) Bottom trawl gear--(i) Large footrope trawl gear. Lines or 
ropes that run parallel to the footrope may not be augmented with 
material encircling or tied along their length such that they have a 
diameter larger than 19 inches (48 cm). For enforcement purposes, the 
footrope will be measured in a straight line from the outside edge to 
the opposite outside edge at the widest part on any individual part, 
including any individual disk, roller, bobbin, or any other device.
    (ii) Small footrope trawl gear. Lines or ropes that run parallel to 
the footrope may not be augmented with material encircling or tied 
along their length such that they have a diameter larger than 8 inches 
(20 cm). For enforcement purposes, the footrope will be measured in a 
straight line from the outside edge to the opposite outside edge at the 
widest part on any individual part, including any individual disk, 
roller, bobbin, or any other device.
    (A) Selective flatfish trawl gear. Selective flatfish trawl gear is 
a type of small footrope trawl gear. The selective flatfish trawl net 
must be a two-seamed net with no more than two riblines, excluding the 
codend. The breastline may not be longer than 3 ft (0.92 m) in length. 
There may be no floats along the center third of the headrope or 
attached to the top panel except on the riblines. The footrope must be 
less than 105 ft (32.26 m) in length. The headrope must be not less 
than 30 percent longer than the footrope. The headrope shall be 
measured along the length of the headrope from the outside edge to the 
opposite outside edge. An explanatory diagram of a selective flatfish 
trawl net is provided as Figure 1 of part 660, subpart D.
    (B) [Reserved]
    (iii) Chafing gear restrictions for bottom trawl gear. Chafing gear 
may encircle no more than 50 percent of the net's circumference and may 
be in one or more sections. Chafing gear may be used only on the last 
50 meshes, measured from the terminal (closed) end of the codend. Only 
the front edge (edge closest to the open end of the codend) and sides 
of each section of chafing gear may be attached to the codend; except 
at the corners, the terminal edge (edge closest to the closed end of 
the codend) of each section of chafing gear must not be attached to the 
net. Chafing gear must be attached outside any riblines and restraining 
straps.
    (4) Midwater (pelagic or off-bottom) trawl gear. Midwater trawl 
gear must have unprotected footropes at the trawl mouth, and must not 
have rollers, bobbins, tires, wheels, rubber discs, or any similar 
device anywhere on any part of the net. The footrope of midwater gear 
may not be enlarged by encircling it with chains or by any other means. 
Ropes or lines running parallel to the footrope of midwater trawl gear 
must be bare and may not be suspended

[[Page 71344]]

with chains or any other materials. Sweep lines, including the bottom 
leg of the bridle, must be bare. For at least 20 ft (6.15 m) 
immediately behind the footrope or headrope, bare ropes or mesh of 16-
inch (40.6-cm) minimum mesh size must completely encircle the net.
    (i) Chafing gear restrictions for midwater trawl gear. Chafing gear 
may cover the bottom and sides of the codend in either one or more 
sections. Only the front edge (edge closest to the open end of the 
codend) and sides of each section of chafing gear may be attached to 
the codend; except at the corners, the terminal edge (edge closest to 
the closed end of the codend) of each section of chafing gear must not 
be attached to the net. Chafing gear is not permitted on the top codend 
panel except as provided in paragraph (b)(4)(ii) of this section.
    (ii) Chafing gear exception for midwater trawl gear. A band of mesh 
(a ``skirt'') may encircle the net under or over transfer cables, 
lifting or splitting straps (chokers), riblines, and restraining 
straps, but must be the same mesh size and coincide knot-to-knot with 
the net to which it is attached and be no wider than 16 meshes.
    (c) Restrictions by limited entry trawl gear type. Management 
measures may vary depending on the type of trawl gear (i.e., large 
footrope, small footrope, selective flatfish, or midwater trawl gear) 
used and/or on board a vessel during a fishing trip, cumulative limit 
period, and the area fished. Trawl nets may be used on and off the 
seabed. For some species or species groups, Table 1 (North) and Table 1 
(South) of this subpart provide trip limits that are specific to 
different types of trawl gear: Large footrope, small footrope 
(including selective flatfish), selective flatfish, midwater, and 
multiple types. If Table 1 (North) and Table 1 (South) of this subpart 
provide gear specific limits for a particular species or species group, 
it is unlawful to take and retain, possess or land that species or 
species group with limited entry trawl gears other than those listed. 
The following restrictions are in addition to the prohibitions at Sec.  
660.112(a)(5).
* * * * *
[FR Doc. 2014-28275 Filed 12-1-14; 8:45 am]
BILLING CODE 3510-22-P