[Federal Register Volume 81, Number 2 (Tuesday, January 5, 2016)]
[Proposed Rules]
[Pages 215-218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33106]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.: 150629565-5999-01]
RIN 0648-BF15


Fisheries Off West Coast States; Comprehensive Ecosystem-Based 
Amendment 1; Amendments to the Fishery Management Plans for Coastal 
Pelagic Species, Pacific Coast Groundfish, U.S. West Coast Highly 
Migratory Species, and Pacific Coast Salmon

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 regulations to implement Comprehensive 
Ecosystem-Based Amendment 1 (CEBA 1), which includes amendments to the 
Pacific Fishery Management Council's (Council's) four fishery 
management plans (FMPs): The Coastal Pelagic Species (CPS) FMP, the 
Pacific Coast Groundfish FMP, the FMP for U.S. West Coast Highly 
Migratory Species (HMS), and the Pacific Coast Salmon FMP. If approved, 
CEBA 1 would amend the Council's FMPs to bring new ecosystem component 
species (collectively, ``Shared EC Species'') into each of those FMPs, 
and would prohibit directed commercial fisheries for Shared EC Species 
within the U.S. West Coast Exclusive Economic Zone (EEZ). Implementing 
regulations for CEBA 1 would define and prohibit directed commercial 
fishing for Shared EC Species, and would prohibit, with limited 
exceptions, at-sea processing of Shared EC Species.

DATES: Comments must be received on or before February 9, 2016.

ADDRESSES: You may submit comments on CEBA 1 and this proposed rule, 
identified by NOAA-NMFS-2015-0123, 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-2015-0123, 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, West Coast Region, NMFS, 7600 Sand Point Way 
NE., Seattle, WA 98115-0070; Attn: Yvonne deReynier.
    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).
    Electronic copies of CEBA 1 may be obtained from the Council Web 
site at http://www.pcouncil.org.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier, 206-526-6129, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Ocean fisheries in the EEZ off Washington, Oregon, and California 
are managed under the Council's CPS, Groundfish, HMS, and Salmon FMPs. 
The Council also maintains a Fishery Ecosystem Plan (FEP), which 
includes an ecosystem initiative process for reviewing fisheries 
management issues that may affect multiple FMPs and for developing 
policies and regulations to address those issues under the authority of 
its FMPs. Under the ecosystem initiative process, the Council has 
reviewed trophic connections between the West Coast EEZ's unfished 
forage fish species and the EEZ's predator species managed under the 
MSA, the Marine Mammal Protection Act, and the Endangered Species Act. 
Through that review, the Council determined that it wanted to bring a 
suite of unfished and unmanaged forage fish species into its FMPs as 
ecosystem component (EC) species, and to prohibit directed fisheries 
for those species (unless and until science indicates that the stocks 
could support such fisheries).
    The Council has recommended amending its FMPs to include the 
following species as Shared EC Species: Round herring (Etrumeus teres) 
and thread herring (Opisthonema libertate and O. medirastre); 
mesopelagic fishes of the families Myctophidae, Bathylagidae, 
Paralepididae, and Gonostomatidae; Pacific sand lance (Ammodytes 
hexapterus); Pacific saury (Cololabis saira); silversides (family 
Atherinopsidae); smelts of the family Osmeridae; and pelagic squids 
(families: Cranchiidae, Gonatidae, Histioteuthidae, Octopoteuthidae, 
Ommastrephidae except Humboldt squid (Dosidicus gigas,) 
Onychoteuthidae, and Thysanoteuthidae). Under Federal regulations at 50 
CFR 600.310(d)(5)(iii,) a species may be included in an FMP as an EC 
species for: Data collection purposes, to inform the understanding of 
ecosystem considerations related to specification of optimum yield for 
the associated fishery, to assist in the development of conservation 
and management measures for the associated fishery, or to address other 
ecosystem issues. The Council recommended including the suite of Shared 
EC Species in its FMPs as EC species to address ``other ecosystem 
issues,'' because these species are the broadly used prey of marine 
mammal, seabird, and fish species in the U.S. West Coast EEZ. The 
Council also noted that Shared EC Species are among the known prey of 
fishery management unit species of all four of the Council's FMPs; 
therefore, Shared EC Species support predator species' growth and 
development and may also be identified as EC species ``for ecosystem 
considerations related to specification of optimum yield for the 
associated fishery.''
    CEBA 1, through its implementing FMP amendments and regulations, 
would prohibit the future development of fisheries for Shared EC 
Species within the U.S. West Coast EEZ until

[[Page 216]]

the Council has had an adequate opportunity to both assess the 
scientific information relating to any proposed directed fishery and 
consider potential impacts to existing fisheries, fishing communities, 
and the greater marine ecosystem. CEBA 1 includes these FMP amendments: 
Amendment 15 to the CPS FMP, Amendment 25 to the Pacific Coast 
Groundfish FMP, Amendment 3 to the FMP for U.S. West Coast HMS, and 
Amendment 19 to the Pacific Coast Salmon FMP. NMFS published a notice 
of availability of CEBA 1 in the Federal Register (80 FR 76924, 
December 11, 2015) to notify the public of the availability of the FMP 
amendments and invite comments. Comments received by the end of the 
CEBA 1 comment period, whether specifically directed to the FMP 
amendments or the proposed rule, will be considered and addressed in 
the preamble to the final rule for this action.

Proposed Regulations

    FMPs for EEZ fisheries off the U.S. West Coast are implemented 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) by regulations at 50 CFR 660. This proposed rule 
would revise 50 CFR 660.1(a,) subpart A, to clarify that the 
regulations in Part 660 of Title 50 of the Code of Federal Regulations 
apply to all vessels fishing within the U.S. West Coast EEZ. This 
proposed rule would also add new regulations at 50 CFR part 660, 
subpart B, that: (1) Identify Shared EC Species as including the 
unfished forage species listed earlier in the preamble to this proposed 
rule; (2) define what is meant by ``directed commercial fishing'' for 
Shared EC Species within the U.S. West Coast EEZ; (3) prohibit directed 
commercial fishing for Shared EC Species; and (4) prohibit at-sea 
processing of Shared EC Species, except while otherwise lawfully 
processing groundfish in accordance with 50 CFR part 600, subpart D. 
Directed commercial fishing for Shared EC Species is proposed to be 
defined as: Any vessel landing Shared EC Species without landing any 
other species; or any vessel landing Shared EC Species with other 
species and in amounts more than 10 mt combined weight of all Shared EC 
Species from any fishing trip, or 30 mt combined weight of all Shared 
EC Species in any calendar year.
    Proposed landings limits are based on historic daily and annual per 
vessel landings levels of Shared EC Species, and take into account 99 
percent of all Shared EC Species daily vessel landings and 97 percent 
of annual vessel total landings from the 2005-2014 period. This 
proposed rule also addresses the potential for incidental catch of 
Shared EC Species within the at-sea whiting sectors of the groundfish 
trawl fishery by providing an exception to the prohibition on at-sea 
processing of Shared EC Species when those species are retained and 
processed in amounts smaller than 1 mt for all Shared EC Species other 
than squid, and 40 mt for all Shared EC squid species. Over the 2002-
2014 period, the highest annual catch of Shared EC Species other than 
squid, for the combined catcher-processor and mothership whiting fleets 
was 1.2 mt in 2011. Over the 2006-2014 period, all at-sea processors 
received fewer than 40 mt of Shared EC squid species, except for one 
vessel that in one year received 60 mt of Shared EC squid species.
    This action is needed to proactively protect unmanaged, unfished 
forage fish of the U.S. West Coast EEZ, in recognition of the 
importance of these forage fish to the species managed under the 
Council's FMPs and to the larger California Current Ecosystem. Shared 
EC Species have not historically been targeted or processed in EEZ 
fisheries, and the limits provided in this proposed rule are intended 
to recognize that low levels of incidental catch if Shared EC Species 
may continue to occur. This action does not supersede tribal or state 
fishery management for these species.

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 CPS FMP, the Pacific Coast Groundfish FMP, the FMP for U.S. West 
Coast HMS, the Pacific Coast Salmon FMP, and other applicable law, 
subject to further consideration after public comment.
    An environmental assessment (EA) for this action is available on 
NMFS's Web site at www.westcoast.fisheries.noaa.gov/fisheries/ecosystem/index.html.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires 
agencies to assess the economic impacts of their proposed regulations 
on small entities. The objective of the RFA is to consider the impacts 
of a rulemaking on small entities, and the capacity of those affected 
by regulations to bear the direct and indirect costs of regulation.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the RFA (RFA). The IRFA describes the 
economic 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 
summary of the analysis follows, with significant alternatives 
identified per 603(c).
    Small entities include ``small businesses,'' ``small 
organizations,'' and ``small governmental jurisdictions.'' The SBA has 
established size standards for all major industry sectors in the U.S. 
including commercial finfish harvesters (NAICS code 114111), commercial 
shellfish harvesters (NAICS code 114112), other commercial marine 
harvesters (NAICS code 114119), for-hire businesses (NAICS code 
487210), marinas (NAICS code 713930), seafood dealers/wholesalers 
(NAICS code 424460), and seafood processors (NAICS code 311710). A 
business primarily involved in finfish harvesting is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $20.5 million for all its 
affiliated operations worldwide (13 CFR part 121; August 17, 2015). For 
commercial shellfish harvesters, the other qualifiers apply and the 
receipts threshold is $5.5 million. For other commercial marine 
harvesters, for-hire businesses, and marinas, the other qualifiers 
apply and the receipts threshold is $7.5 million. A business primarily 
involved in seafood processing is classified as a small business if it 
is independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual 
employment not in excess of 500 employees for all its affiliated 
operations worldwide. For seafood dealers/wholesalers, the other 
qualifiers apply and the employment threshold is 100 employees. A small 
organization is any not-for-profit enterprise which is independently 
owned and operated and is not dominant in its field. Small governmental 
jurisdictions are governments of cities, counties, towns, townships, 
villages, school districts, or special districts, with populations less 
than 50,000.
    The Council considered three alternatives for the implementation of 
this rule. The No Action and the selected/preferred alternatives are 
not expected to have a signficiant impact on any small entities. The 
third alternative was not selected and would likely increase costs for 
a substantial number of small entities. A summary of each alternative 
and the economic impacts follows below.

[[Page 217]]

    Alternative 1: If it is in conformance with all current Federal 
requirements, such as the Federal list of authorized fisheries and 
gear, the No Action alternative could allow a new fishery for Shared EC 
Species to begin without advance Council action to ensure the fishery's 
long-term sustainability. Participants in fisheries that currently take 
Shared EC Species incidentally (CPS and groundfish trawl) could more 
easily develop new fisheries for Shared EC Species under the No Action 
alternative than under the selected alternative. However, there have 
not been substantial historical U.S. West Coast landings of Shared EC 
Species. Barring notable shifts in composition of resident and 
transient species in the U.S. West Coast EEZ, it is unlikely that there 
are any current or future potentially important directed fishing 
opportunities for Shared EC Species in the EEZ. Alternative 1 is 
therefore not expected to have direct impacts on small entities.
    Alternative 2 (preferred/Selected): The selected (preferred) 
alternative will not impose any changes in existing fishing behavior 
and is unlikely to have any effect on West Coast fisheries, either 
small or large entities, compared to the No Action Alternative. The 
selected alternative would prohibit the future development of directed 
commercial fisheries for currently unfished species; recreational 
fisheries and associated entities are not regulated by this action. The 
selected alternative is not expected to change fisheries harvest rates, 
the types of gears used off the U.S. West Coast, fishing seasons, or 
the geographical location of any fishery. The selected alternative 
could have minor, indirect, and positive effects on fishery management 
practices compared to the No Action Alternative 1 and is expected to 
have no direct impacts on small entities.
    Alternative 3: Alternative 3 would have moderate, indirect and 
negative effects on coastal pelagic species net, shrimp, bottom trawl, 
and whiting fisheries and fishery management practices. These four 
fisheries comprise a substantial number of small entities, many of 
which likely fish in federal waters and would experience increased 
costs resulting from increased sorting, recordkeeping and reporting 
requirements.
    Fifty-eight vessels are currently permitted in the Federal CPS 
limited entry fishery. All of these vessels currently fish off 
California. Average annual per vessel revenue in 2013 for the West 
Coast CPS finfish fleet was well below $20.5 million; therefore, all of 
these vessels are considered small businesses under the RFA. 
Approximately 95 vessels participated in the pink shrimp fishery on the 
West Coast in 2014, all of which would be considered small businesses 
according to the standards. Because each affected vessel is a small 
business, this proposed rule has an equal effect on all of these small 
entities, and therefore will impact a substantial number of these small 
entities in the same manner.
    Currently, the Shorebased IFQ Program is composed of 149 Quota 
Share permits/accounts, 152 vessel accounts, and 43 first receivers. 
Many companies participate in multiple sectors of the fishery. After 
accounting for cross participation, multiple Quota Share account 
holders, and for affiliation through ownership, NMFS estimates that 
there are 103 non-tribal entities directly affected by these proposed 
regulations, 89 of which are considered to be ``small'' businesses.
    The mothership (MS) fishery is currently composed of a single 
cooperative, the Whiting Mothership Cooperative with six mothership 
processor permits, and 34 mothership/catcher-vessel (MS/CV) endorsed 
permits, with three permits each having two catch history assignments. 
The catcher/processor (C/P) Program is composed of 10 C/P permits owned 
by three companies that have formed a single cooperative, the Pacific 
Whiting Conservation Cooperative. These two cooperatives are considered 
large entities from several perspectives: They have participants that 
are large entities, cooperative revenues exceed or have exceeded $20.5 
million, combined employment exceeds 500 employees, and co-op members 
are connected to American Fishing Act permits or co-ops where the NMFS 
Alaska Region has determined they are all large entities (79 FR 54597, 
September 12, 2014).
    Therefore, 17 large groundfish fishery entities and 242 small 
entities would be affected by Alternative 3 (the non-preferred 
alternative): 89 small entities in the trawl fishery, 58 small entities 
in the CPS fishery, and 95 small entities in the pink shrimp fishery. 
We expect Alternative 3 would have moderate, indirect and negative 
effects on coastal pelagic species, shrimp, bottom trawl, and whiting 
fisheries and fishery management practices; however, these effects 
cannot be quantified without better data on the costs vessels would 
incur discarding at sea.
    This proposed rule was developed after meaningful collaboration, 
through the Council process, with the tribal representative on the 
Council. NMFS is not aware of any Treaty Indian tribe or subsistence 
fisheries in the EEZ other than those listed in 50 CFR 600.725(v). This 
action does not supersede or otherwise affect exemptions that exist for 
Treaty Indian fisheries.
    This proposed rule does not contain a collection of information 
requirement subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA).

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, Fisheries, Fishing.

    Dated: December 29, 2015.
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.  660.1 revise paragraph (a) to read as follows:


Sec.  660.1  Purpose and scope.

    (a) The regulations in this part govern fishing activity of vessels 
of the United States that fish or support fishing inside the outer 
boundary of the EEZ off the states of Washington, Oregon, and 
California.
* * * * *
0
3. Add subpart B to read as follows:

Subpart B--All West Coast EEZ Fisheries

Sec.
660.5 Shared Ecosystem Component Species.
660.6 Prohibitions.


Sec.  660.5  Shared Ecosystem Component Species.

    (a) General. The FMPs implemented in this part 660 each contain 
ecosystem component species specific to each FMP, as well as a group of 
ecosystem component species shared between all of the FMPs. Ecosystem 
component species shared between all of the Pacific Fishery Management 
Council's FMPs, and known collectively as ``Shared EC Species,'' are:
    (1) Round herring (Etrumeus teres) and thread herring (Ophisthonema 
libertate and O. medirastre).
    (2) Mesopelagic fishes of the families Myctophidae, Bathylagidae, 
Paralepididae, and Gonostomatidae.

[[Page 218]]

    (3) Pacific sand lance (Ammodytes hexapterus).
    (4) Pacific saury (Cololabis saira).
    (5) Silversides (family Atherinopsidae).
    (6) Smelts of the family Osmeridae.
    (7) Pelagic squids (families: Cranchiidae, Gonatidae, 
Histioteuthidae, Octopoteuthidae, Ommastrephidae except Humboldt squid 
[Dosidicus gigas,] Onychoteuthidae, and Thysanoteuthidae).
    (b) Directed Commercial Fishing for Shared EC Species. For the 
purposes of this section, ``directed commercial fishing'' means that a 
fishing vessel lands Shared EC Species without landing any species 
other than Shared EC Species, or lands Shared EC Species with other 
species and in amounts more than:
    (1) 10 mt combined weight of all Shared EC Species from any fishing 
trip; or
    (2) 30 mt combined weight of all Shared EC Species in any calendar 
year.


Sec.  660.6  Prohibitions.

    In addition to the general prohibitions specified in Sec.  600.725 
of this chapter, and the other prohibitions specified in this part, it 
is unlawful for any person to:
    (a) Directed Commercial Fishing. Engage in directed commercial 
fishing for Shared EC Species from a vessel engaged in commercial 
fishing within the EEZ off Washington, Oregon, or California. This 
prohibition does not apply to:
    (1) Fishing authorized by the Hoh, Makah, or Quileute Indian 
Tribes, or by the Quinault Indian Nation, or
    (2) Fishing trips conducted entirely within state marine waters.
    (b) At-sea Processing. At-sea processing of Shared EC Species is 
prohibited within the EEZ, except while processing groundfish in 
accordance with Subpart D of this part.
0
4. In Sec.  660.112, add paragraphs (d)(16) and (e)(10) to read as 
follows:


Sec.  660.112  Trawl fishery--prohibitions.

* * * * *
    (d) * * *
    (16) Retain and process more than 1 mt of Shared EC Species other 
than squid species in any calendar year; or, retain and process more 
than 40 mt of any Shared EC squid species in any calendar year.
    (e) * * *
    (10) Retain and process more than 1 mt of Shared EC Species other 
than squid species in any calendar year; or, retain and process more 
than 40 mt of any Shared EC squid species in any calendar year.

[FR Doc. 2015-33106 Filed 1-4-16; 8:45 am]
 BILLING CODE 3510-22-P