[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Rules and Regulations]
[Pages 19054-19058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07516]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.: 150629565-6224-02]
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: Final rule.

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SUMMARY: NMFS issues 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. CEBA 1 amended the Council's 
FMPs to bring new ecosystem component species (collectively, ``Shared 
EC Species'') into each of those FMPs, and prohibits directed 
commercial fisheries for Shared EC Species within the U.S. West Coast 
Exclusive Economic Zone (EEZ). This final rule defines and prohibits 
directed commercial fishing for Shared EC Species, and prohibits, with 
limited exceptions, at-sea processing of Shared EC Species.

DATES: Effective May 4, 2016.

ADDRESSES: Electronic copies of CEBA 1 may be obtained from the Council 
Web site at http://www.pcouncil.org. Electronic copies of the 
environmental

[[Page 19055]]

assessment and final regulatory flexibility analysis for this action 
may be obtained from the West Coast Regional Office Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/ecosystem/index.html.

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

SUPPLEMENTARY INFORMATION:

Background

    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. NMFS published 
a proposed rule to implement CEBA 1 on January 5, 2016 (81 FR 215). 
NMFS accepted public comments on the FMP amendments and proposed rule 
through February 9, 2016.
    CEBA 1, through its implementing FMP amendments and regulations, 
prohibits the development of fisheries for a suite of ecosystem 
component species (collectively, ``Shared EC Species'') within the U.S. 
West Coast EEZ until 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. CEBA 1 
adds the following species as Shared EC Species to each of the four 
West Coast FMPs: 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).
    This final rule revises 50 CFR 660.1(a) to clarify that the 
regulations in Part 660 of Title 50 of the Code of Federal Regulations 
are not limited to fishing for management unit species, but are 
applicable generally to vessels fishing within the U.S. West Coast EEZ. 
This rule also adds 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 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. 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 
final rule are intended to recognize that low levels of incidental 
catch of Shared EC Species may continue to occur. This action does not 
supersede tribal or state fishery management for these species.

Public Comments and Responses

    NMFS received 63 letters and emails supporting the finalization of 
CEBA 1 and its implementing regulations during the public comment 
period. Within the letters of support, NMFS received a letter from the 
U.S. Department of the Interior requesting clarification on whether 
essential fish habitat (EFH) would be defined for Shared EC Species. 
Several letters from environmental organizations included petitions 
supporting the action, with signatures or comments from 91,966 people 
supporting the action. Two of the letters of support were received from 
organizations of fishermen and vessel owners asking for clarifications 
of or revisions to the regulations language. In addition to the letters 
and emails supporting the action, NMFS also received a letter from an 
organization of fishermen and vessel owners recommending clarifications 
to the final rule. NMFS appreciates the broad public interest in this 
rulemaking and has taken the strong public support it received during 
the comment period into account in its approval of this final rule. 
Comments requesting clarification on regulatory issues, or suggesting 
revisions to regulatory language implementing this action are 
summarized below, with NMFS's responses to those comments.
    Comment 1: The Department of the Interior requests clarification on 
whether NMFS will designate EFH for Shared EC Species.
    Response: NMFS will not designate EFH for Shared EC Species. Under 
Federal regulations at 50 CFR 600.805(b), EFH must be designated for 
all species within an FMP's fishery management unit. In contrast, 
federal regulations at 50 CFR 600.310(d)(5) characterize ecosystem 
component species as species that are: not in the fishery or fishery 
management unit, not the target of Federal fisheries, not overfished or 
approaching an overfished condition, and not generally retained for 
sale. Occasional retention of ecosystem component species does not 
preclude their characterization as ecosystem component species. The 
species identified by this action as within the Shared EC Species group 
meet the guidance at 50 CFR 600.310(d)(5) for classification as 
ecosystem component species, rather than as fishery management species. 
Therefore, NMFS does not need to designate EFH for Shared EC Species.
    Comment 2: Some of the letters or emails supporting this action 
asked that NMFS also prohibit fishing for krill, either off the West 
Coast or elsewhere in the U.S., in addition to the prohibitions on 
fishing for species classified as Shared EC Species by this action.
    Response: Under Federal regulations at 50 CFR 660.505(o), fishing 
for krill has been prohibited in the EEZ off the U.S. West Coast since 
2009 (74 FR 33372, July 13, 2009). This action does not address 
fisheries occurring outside of the U.S. West Coast EEZ; furthermore 
there is no known fishing for krill by U.S. vessels on the high seas.
    Comment 3: An organization representing fishermen and fishing 
vessel owners described upheavals in West Coast salmon and Dungeness 
crab fisheries resulting from recent unusual environmental conditions. 
The organization asked that NMFS or the Council provide guidance to the 
fishing industry on whether there are avenues for developing future 
sustainable fisheries on Shared EC Species, should the need arise.
    Response: The Council explicitly considered this issue in 
developing CEBA 1 and made provisions for allowing future fishing 
interests to experiment with directed fishing for Shared EC Species, to 
provide the Council with scientific information that would allow it to 
consider opening a fishery for these species, considering potential 
impacts to existing fisheries, fishing communities, and the greater 
marine ecosystem. Although this action revises Federal regulations to 
prohibit directed fishing for Shared EC Species, some future Council 
could recommend revising those regulations to

[[Page 19056]]

accommodate a sustainable directed fishery for a species now classified 
as a Shared EC Species. NMFS and the Council have a regular practice 
for existing West Coast fisheries of encouraging innovative gear types 
or fishing methods that may not be allowed in Federal regulations by 
considering exempted fishing permits (EFPs) for the proposed new gear 
type or fishing method. To ensure that the Council receives consistent 
and thoughtfully-designed EFP proposals, it maintains Operating 
Procedures outlining its requirements for considering EFPs for new or 
experimental fisheries or gear. As part of its work on CEBA 1, the 
Council adopted its Operating Procedure 24, a Protocol for 
Consideration of Exempted Fishing Permits for Shared Ecosystem 
Component Species. Ultimately, to allow a directed fishery for a 
species now classified as a Shared EC Species, the Council and NMFS 
would have to review the potential fishery and species for inclusion in 
an FMP as a fishery management unit species, and would then have to 
consider Federal regulations to implement that fishery. This process of 
considering revisions to fishing regulations by using information 
gained in EFP fisheries is common in the West Coast Federal fisheries 
management process. NMFS supports the Council's thorough work on the 
CEBA 1 package of FMP amendments, implementing regulations, and 
operating procedure for future potential EFPs. Together, the elements 
of CEBA 1 reflect an understanding of the current state of science on 
West Coast marine species and of the Federal fisheries laws and 
regulations that affect those species, while also leaving flexibility 
for future fishermen and fisheries managers to work with changes in the 
ecosystem and updates in fisheries and ocean science.
    Comment 4: An organization representing companies that own whiting 
vessels noted that the Council described the purpose of CEBA 1 as 
prohibiting new directed commercial fishing in Federal waters on 
unmanaged, unfished forage fish species until the Council has had an 
adequate opportunity to both assess the scientific information relating 
to any proposed directed fishery and consider potential impacts to 
exiting fisheries, fishing communities, and the greater marine 
ecosystem. The commenter asks why the proposed rule implementing CEBA 1 
appears to prohibit any directed fisheries for Shared EC species, 
rather than prohibiting only new directed fisheries for Shared EC 
Species.
    Response: There are no existing directed fisheries for Shared EC 
Species in the U.S. West Coast EEZ; therefore, any future directed 
fishing for Shared EC Species would be new directed fishing. Adding the 
word ``new'' to the regulation would be confusing and superfluous.
    Comment 5: An organization representing CPS fishermen and fishing 
vessel owners recommended that, in the preamble to this final rule, 
NMFS reiterate the Council's full purpose and need statement for CEBA 
1. This organization also expressed concern that the proposed 
definition of directed fishing for Shared EC Species did not allow for 
high enough levels of incidental landings to account for unique 
historic events where Shared EC Species were taken incidentally with 
species managed under a Council FMP, and suggested that only the 
historically highest landings of 52 mt per day with an annual vessel 
limit of 225 mt per year would account for unique historic events. 
Finally, the organization noted that climate change could bring shifts 
in the composition of species occurring off the U.S. West Coast and 
asked that, in the final rule for this action, NMFS establish a two-
year review period for this action to assess the impacts of the action.
    Response: As discussed in the preamble to the proposed rule for 
this action, and as quoted by the commenter who submitted Comment 4, 
the purpose of this action, according to the environmental assessment 
for the action, is to ``prohibit new directed commercial fishing in 
Federal waters on unmanaged, unfished forage fish species until 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.''
    In the analysis that NMFS conducted to review potential limits for 
allowable incidental landings levels of Shared EC Species, NMFS noted 
that the highest daily landing level for the 2005-2014 period of groups 
of species that were predominantly Shared EC Species, but which could 
also have included Humboldt squid, was 52 mt. NMFS also noted that a 
daily incidental landing level of 10 mt would account for 99 percent of 
all historic daily landings levels. For annual total landings of 
species groups that were predominantly Shared EC Species, but which 
could also have included Humboldt squid, the highest historic annual 
landing level was 225 mt, while an annual limit of 30 mt would account 
for 97 percent of all historic annual landings levels. Between 
approximately 2006 and 2010 and peaking in 2008, the waters off the 
U.S. West Coast were inundated with large schools of Humboldt squid, 
which is not a Shared EC Species. Due to the somewhat surprising nature 
of this mass squid migration and population explosion, West Coast 
fisheries data collection programs were not initially equipped to 
separately identify Humboldt squid from other squid species on fish 
landings tickets. For these regulations, the Council recommended a 
Shared EC Species daily incidental landing limit of 10 mt and an annual 
cumulative landing limit of 30 mt, knowing that historic landings at 
those levels could possibly have included some Humboldt squid, also 
known as ``jumbo'' squid for its large size. NMFS believes that the 
limits recommended by the Council, provided in the proposed rule for 
this action, and finalized with this final rule, strike an appropriate 
balance between being high enough to account for unique historic 
incidental catch of Shared EC Species, without being so high as to 
allow or encourage targeting of those species. The NMFS analysis of 
historic West Coast landings of Shared EC Species, including 
discussions explaining the constraints of the fisheries landings data, 
is available on the Council's Web site for its September 2015 meeting: 
http://www.pcouncil.org/wp-content/uploads/2015/08/D2a_SUP_NMFS_Rpt_forage_SEPT2015BB.pdf.
    The Council can schedule a review of these regulations and their 
effects at any time. Regulations at 50 CFR part 660 govern the actions 
of fishermen, fishing vessel owners, and fisheries participants 
operating in the U.S. West Coast EEZ. The scope of this action did not 
include the activities of the Council itself, and therefore this final 
rule does not include any provisions governing the actions of the 
Council.

Changes From the Proposed Rule

    There are no changes to the regulatory text from the proposed rule, 
except for a minor and non-substantive grammatical correction to 50 CFR 
660.1(a), changing the word ``of'' to ``by,'' when referring to fishing 
activity by vessels of the United States.

Classification

    The Administrator, West Coast Region, NMFS, determined that the FMP 
amendments implementing CEBA 1 are necessary for conservation and 
management of West Coast fisheries, and that they are consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.

[[Page 19057]]

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared 
pursuant to 5 U.S.C. 604(a), and incorporates the Initial Regulatory 
Flexibility Analysis (IRFA), and NMFS's responses to comments received 
on the IRFA, if any. NMFS did not receive any comments from the public 
on the IRFA for this action. The preamble to the proposed rule for this 
action included a detailed summary of the analyses contained in IRFA, 
and that discussion is not repeated here.

Final Regulatory Flexibility Analysis

A Statement of the Need for, and Objectives of, the Rule

    This rule prohibits new directed commercial fishing in Federal 
waters on unmanaged, unfished forage fish species until 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. 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 CCE. This action is 
not intended to supersede tribal or state fishery management for these 
species, and coordination would still occur through the existing 
Council process. CEBA 1 brings new ecosystem component species into 
each of the Council's four FMPs through amendments to those FMPs, and 
protects those species by prohibiting the future development of new 
directed commercial fisheries for Shared EC Species within the U.S. 
West Coast EEZ. No existing fisheries will be eliminated by this 
action. Under this rulemaking, existing levels of incidental catch of 
Shared EC Species in current fisheries will be allowed to continue into 
the future.

A Summary of Significant Issues Raised by the Public in Response to the 
Summary of the Agency's Assessment of Such Issues, and a Statement of 
Any Changes Made in the Final Rule as a Result

    No public comments were received by NMFS in response to the IRFA or 
the economic analyses summarized in the IRFA, and no changes were 
required to be made as a result of the public comments. A summary of 
the comments received, and our responses, can be found above in the 
``Comments and Responses'' section of this rule's preamble.

Response of the Agency to any Comments Filed by the Chief Counsel for 
Advocacy of the Small Business Administration in Response to the 
Proposed Rule

    The Small Business Administration did not provide any comments on 
the proposed rule for this action.

Description and Estimate of Number of Small Entities To Which the Rule 
Will Apply

    This rule will have no direct impact on any small entities.

A Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Rule

    This action does not contain any Federal reporting, record keeping, 
or any other compliance requirements for either small or large 
entities.

A Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    Alternative 2, the selected alternative for this rule, accomplishes 
the stated objectives of applicable statutes without any significant 
economic impact on small entities. Alternative 1, the no-action 
alternative, also would not have had any direct economic impact on 
small entities, but did not accomplish the state objectives of 
applicable statutes. Alternative 3 was expected to have moderate, 
indirect and negative effects on coastal pelagic species, shrimp, 
bottom trawl, and whiting fisheries and fishery management practices 
and was thus rejected in favor of the selected alternative in order to 
minimize economic impact on small entities consistent with the stated 
objectives of applicable statutes. A copy of this analysis is available 
from NMFS (see ADDRESSES). 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 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.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, Fisheries, Fishing.

    Dated: March 29, 2016.
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 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 by 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.
    (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

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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. 2016-07516 Filed 4-1-16; 8:45 am]
 BILLING CODE 3510-22-P