[Federal Register Volume 81, Number 198 (Thursday, October 13, 2016)]
[Proposed Rules]
[Pages 70660-70663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24780]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 160728670-6904-01]
RIN 0648-BG23


Fisheries off West Coast States; Highly Migratory Fisheries; 
California Drift Gillnet Fishery; Protected Species Hard Caps for the 
California/Oregon Large-Mesh Drift Gillnet Fishery

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 is proposing regulations under the authority of Section 
303(b) of the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA) to implement an immediate closure of the California thresher 
shark/swordfish drift gillnet (DGN) (mesh size >=14 inches) fishery if 
a hard cap (i.e., limit) on mortality/injury is met or exceeded for 
certain protected species during a rolling 2-year period. The length of 
the closure would be dependent on when--during the 2-year period--the 
hard cap is reached.

DATES: Comments on the proposed rule and supporting documents must be 
submitted in writing by November 28, 2016.

ADDRESSES: You may submit comments on this document, the draft 
Environmental Assessment (EA), draft Regulatory Impact Review (RIR) and 
Initial Regulatory Flexibility Analysis (IRFA), identified by NOAA-
NMFS-2016-0123, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0123, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Lyle Enriquez, NMFS West 
Coast Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802. 
Include the identifier ``NOAA-NMFS-2016-0123'' in the comments.
    Instructions: Comments must be submitted by one of the above 
methods to ensure they are received, documented, and considered by 
NMFS. 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. 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.) submitted voluntarily by the sender will be publicly 
accessible. Do not submit confidential business information, or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous).
    Copies of the draft EA, draft RIR, IRFA, and other supporting 
documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2016-0123 or by contacting the 
Regional Administrator, Barry Thom, NMFS West Coast Region, 1201 NE. 
Lloyd Blvd., Portland, OR 97232-2182, or 
[email protected].

FOR FURTHER INFORMATION CONTACT: Lyle Enriquez, NMFS, West Coast 
Region, 562-980-4025, or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The DGN fishery for swordfish and thresher shark (14'' minimum mesh 
size) is federally managed under the Federal Fishery Management Plan 
for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) 
and via regulations of the states of California and Oregon to conserve 
target and non-target stocks, including protected species that are 
incidentally captured. The HMS FMP was prepared by the Pacific Fishery 
Management Council (Council) and is implemented under the authority of 
the MSA by regulations at 50 CFR part 660.
    The DGN fishery has been subject to a number of seasonal closures. 
Since 1982, it has been closed inside the entire U.S. West Coast 
exclusive economic zone (EEZ) from February 1 to April 30 of each year. 
In 1986, a closure was established within 75 miles of the California 
mainland from June 1 through Aug 14 of each year to conserve common 
thresher sharks; this closure was extended to include May in 1990 and 
later years. In 2001, NMFS implemented two Pacific sea turtle 
conservation areas on the U.S. West Coast with seasonal DGN 
restrictions to protect endangered leatherback and loggerhead sea 
turtles. The larger of the two closures spans the EEZ north of Point 
Conception, CA (34[deg]27' N. latitude) to mid-Oregon (45[deg] N. 
latitude) and west to 129[deg] W. longitude. DGN fishing is prohibited 
annually within this conservation area from August 15 to November 15 to 
protect leatherback sea turtles. A smaller closure was implemented to 
protect Pacific loggerhead turtles from DGN gear from June 1-August 31 
of each year during a forecasted or occurring El Ni[ntilde]o event, and 
is located south of Point Conception, CA, and east of 120[deg] W. 
longitude (72 FR 31756). The number of active vessels in the DGN 
fishery has remained under 50 vessels since 2003, and there has been an 
average of 20 active vessels per year from 2010 through 2015.
    Since 1990, NMFS has targeted 20 percent observer coverage of the 
DGN fishery each year, per recommendations from the Southwest Fisheries 
Science Center (NMFS 1989). NMFS' fleet-wide observer coverage target 
has been 30 percent since 2013. Since some DGN vessels are unobservable 
due to safety or accommodations requirements, the observable vessels 
are observed at a rate higher than 30 percent to attain the fleet-wide 
30 percent coverage. Four to six DGN vessels have been unobservable 
during each fishing season from 2011 to present.

Council Background

    In March 2012, the Council tasked NMFS with determining the steps 
needed to implement protected species hard caps in the DGN fishery. 
Originally concerned with sea turtle interactions, the Council expanded 
its scope to include marine mammals at its June 2014 meeting. At that 
meeting, the Council directed its Highly Migratory Species Management 
Team (HMSMT) to begin developing a range of alternatives

[[Page 70661]]

to establish hard caps on high-priority protected species (i.e. sea 
turtles and marine mammals) incidentally caught in the DGN fishery. In 
September 2014, the Council selected a Range of Alternatives and 
Preliminary Preferred Alternative (PPA); however, the HMSMT identified 
implementation issues with the Council's PPA, and an additional PPA, 
identified as the California Department of Fish and Wildlife (CDFW) 
PPA, was selected in March 2015. In June, the Council added a 2-year 
hard cap sub-option to the Council hard cap PPA and the CDFW hard cap 
PPA, and an additional alternative that modified the CDFW PPA was added 
in September 2015. This alternative contained 2-year rolling hard caps 
based on observed mortality/injury; the Council selected this 
alternative as its Final Preferred Alternative (FPA).

Proposed Regulations for Hard Cap Limits

    The implementation of hard caps is intended to manage the fishery 
under the MSA to protect certain non-target species. Its purpose is not 
to manage marine mammal or endangered species populations, but rather 
to enhance the provisions of ESA and the MMPA under MSA Section 
303(b)(12) and National Standard 9. This proposed rule would implement 
the Council's FPA, which would establish 2-year rolling hard caps on 
observed mortality and injury to fin, humpback, and sperm whales, 
leatherback, loggerhead, olive ridley, and green sea turtles, short-fin 
pilot whales, and bottlenose dolphins in the DGN fishery. The 
definition of injury is taken from the NMFS West Coast Region Observer 
Program field manual. Observers record protected species released as 
Alive, Injured, or Dead. Observer program staff reviews observer data 
forms and notes to make a final determination of the condition of 
entangled protected species. To determine whether a hard cap has been 
reached, NMFS would count observed mortalities and injuries to these 
species during the current DGN fishing season (May 1 through January 
31) and the previous fishing season. If a cap were reached, the DGN 
fishery would close until the 2-year (i.e. two fishing seasons) 
mortality and injury for all species is below their hard cap value. The 
DGN fishery would then re-open on May 1 of the subsequent fishing 
season. The Council recommended hard cap values for when the DGN 
observer coverage level is less than 75 percent; the Council will 
revisit hard cap values when observer coverage becomes greater than 75 
percent.

 Table 1--Proposed Protected Species Hard Caps for Drift Gillnet Fishery
------------------------------------------------------------------------
                                                              Rolling 2-
                          Species                             year hard
                                                                 cap
------------------------------------------------------------------------
Fin Whale..................................................            2
Humpback Whale.............................................            2
Sperm Whale................................................            2
Leatherback Sea Turtle.....................................            2
Loggerhead Sea Turtle......................................            2
Olive Ridley Sea Turtle....................................            2
Green Sea Turtle...........................................            2
Short-fin Pilot Whale (CA/OR/WA stock).....................            4
Bottlenose Dolphin (CA/OR/WA stock)........................            4
------------------------------------------------------------------------

Fishery Closure Procedures

    NMFS will report observed protected species mortalities and 
injuries to help participants in the DGN fishery plan for the 
possibility of a hard cap being reached. If, as determined by NMFS, the 
DGN fleet meets or exceeds a hard cap during a rolling 2-year period, 
the fishery will be closed. NMFS will publish a notice in the Federal 
Register announcing the specified beginning and end dates of the 
closure. Upon the effective date identified in the Federal Register 
Notice, a DGN vessel may not be used to target, retain on board, 
transship, or land any additional fish using DGN gear in the U.S. West 
Coast EEZ during the period specified in the announcement. Any fish 
already on board a DGN fishing vessel on the effective date may be 
retained on board, transshipped, and/or landed, to the extent 
authorized by applicable laws and regulations, if they are landed 
within 4 days after the effective date. NMFS will notify vessel owners/
operators of the closure by Vessel Monitoring System communication to 
the fleet stating when large-mesh drift gillnet fishing is closed. 
Notification will also be made by postal mail and a posting on the NMFS 
regional Web site.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS West Coast 
Regional Administrator has determined that this proposed rule is 
consistent with the HMS FMP, other provisions of the MSA, and other 
applicable law, subject to further consideration after public comment.
    There are no new collection-of-information requirements associated 
with this action that are subject to the Paperwork Reduction Act (PRA), 
and existing collection-of-information requirements still apply under 
the following Control Numbers: 0648-0593. Notwithstanding any other 
provision of the law, no person is required to respond to, and no 
person shall be subject to penalty for failure to comply with, a 
collection-of-information subject to the requirements of the PRA, 
unless that collection-of-information displays a currently valid Office 
of Management and Budget control number.
    NMFS prepared a draft EA for the proposed regulations that 
discusses the impact on the environment as a result of this rule. The 
proposed action will have minor beneficial environmental impacts on 
target, not-target, and protected species and negative economic impacts 
to the DGN fleet. All of the proposed alternatives would result in a 
negative economic impact; however, the Council's FPA would result in a 
limited economic impact when compared to the other alternatives (a more 
detailed explanation can be found in the IRFA). A copy of the draft EA 
is available from NMFS (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    On December 29, 2015, the National Marine Fisheries Service (NMFS) 
issued a final rule establishing a small business size standard of $11 
million in annual gross receipts for all businesses primarily engaged 
in the commercial fishing industry (NAICS 11411) for Regulatory 
Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 
29, 2015). The $11 million standard became effective on July 1, 2016, 
and is to be used in place of the U.S. Small Business Administration's 
(SBA) current standards of $20.5 million, $5.5 million, and $7.5 
million for the finfish (NAICS 114111), shellfish (NAICS 114112), and 
other marine fishing (NAICS 114119) sectors of the U.S. commercial 
fishing industry in all NMFS rules subject to the RFA after July 1, 
2016. Id. at 81194.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (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. A copy of 
this analysis is available from NMFS (see ADDRESSES).
    There are currently 73 individual permit holders with valid 
California Department of Fish and Wildlife drift gillnet permits; 
however, many permits remain inactive. On average, 20 vessels

[[Page 70662]]

participated in the fishery each year from 2010 through 2015. In 2015, 
18 vessels participated in the fishery with total landings equaling 96 
metric tons (mt) (round weight), about 5.3 mt on average per vessel. 
Total landings included 18 mt of common thresher shark, 6 mt of 
shortfin mako shark, 66 mt of swordfish, and 5 mt of tunas. All 
participants in the fishery are considered small businesses since 
average annual per vessel revenues persist well below the $11 million 
threshold.
    The Council considered six alternatives for protected species hard 
caps for the DGN fishery before selecting Alternative 6 as their FPA. 
Compared to the baseline, the proposed regulatory action (i.e., based 
on Alternative 6) would result in a $4,596 annual loss per vessel based 
on a DGN fleet size of 20 vessels. These potential adverse economic 
effects of the proposed regulations appear to be limited. DGN effort is 
variable over the course of a fishing season, as vessels may choose to 
fish for salmon, albacore, and other marketable species based on 
abundance and environmental conditions, which may mitigate some of the 
anticipated economic losses. If vessel operators are successful in 
reducing the frequency of hard cap species catch in the future, the DGN 
fishery would close less often. However, given the many existing 
regulatory measures to reduce protected species interactions in the DGN 
fishery to minimal levels, the degree to which further take reductions 
can be realized through fishermen's deliberate effort to avoid reaching 
caps cannot be determined.
    Action Alternatives 1 through 4 were estimated to produce fewer 
costs to the fleet than the FPA; however, these alternatives presented 
significant implementation challenges. The evaluation of the fishery 
against hard caps in each of these Alternatives was based on an 
estimated mortality and serious injury (M&SI) calculation derived from 
observer coverage levels. The current NMFS process under the MMPA for 
making M&SI determinations is an extensive and multi-step process that 
takes months to complete and occurs at the end of each calendar year. 
It was deemed that this process, therefore, would not be responsive 
enough to inseason interactions with protected species. NMFS would have 
to create an expedited M&SI assessment process to make a more timely 
determination, which would have further delayed this action. 
Additionally, observer coverage rates for the DGN fishery vary between 
and within fishing seasons. This makes it difficult to determine the 
coverage rate at the time an interaction occurs and then extrapolate 
observed M&SI for comparison to the hard caps. Similarly, using a 
generalized observer coverage rate is problematic because DGN vessels 
often participate in multiple fisheries based on environmental factors 
and the presence of different species. This adds to the variation in 
observer coverage levels over the course of a fishing season. Lastly, 
because fishing effort has been low compared to historical levels, a 
small change in observed fishing effort can have a potentially big 
effect on the observer coverage rate if unobserved effort does not 
change commensurately.
    In response to the identified implementation issues with 
Alternatives 1 through 4, the CDFW proposed Alternative 5 with two sub-
Alternatives. Based on Alternative 5 sub-option 1, the DGN fishery 
would be expected to meet or exceed a hard cap seven out of thirteen 
fishing seasons, using historical observations (there is, however, less 
fishing effort in recent years, so the fishery would be expected to 
close fewer than seven times under this Alternative). Using Alternative 
5 sub-option 2, the fishery would be expected to close in 14.6 percent 
of simulated seasons, with the possibility of closing for more than one 
full fishing season. While Alternative 5 would produce greater 
beneficial effects to target, non-target, and protected species than 
the other alternatives, the results of the economic analysis indicate 
that it would have the greatest economic impact and not be conducive to 
supporting an economically viable swordfish fishery. The Council's FPA, 
Alternative 6, is the least costly alternative of those that did not 
present significant implementation issues.
    NMFS considers all entities subject to this action to be small 
entities as defined NMFS' size standards. The small entities that would 
be affected by the proposed action are all U.S. commercial DGN vessels 
that may be used in the California/Oregon large-mesh DGN fishery. 
Because each affected vessel is a small business, the proposed rule has 
an equal effect on all of these small entities. Therefore, the proposed 
action will impact all these small entities in the same manner. This 
rulemaking is not anticipated to have a significant economic impact on 
a substantial number of small entities, or place small entities at a 
disadvantage to large entities.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting, and recordkeeping requirements.

    Dated: October 6, 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 
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.  660.702, add the definition for ``Injury'' in alphabetical 
order to read as follows:


Sec.  660.702  Definitions.

* * * * *
    Injury, when referring to marine mammals and sea turtles, means the 
animal has been released with obvious physical injury or with attached 
fishing gear.
* * * * *
0
3. In Sec.  660.705, add paragraphs (tt) and (uu) to read as follows:


Sec.  660.705  Prohibitions.

* * * * *
    (tt) Fish with a large-mesh drift gillnet (mesh size >=14 inches) 
in the U.S. West Coast Exclusive Economic Zone during the time the 
fishery is closed pursuant to Sec.  660.713(h)(2)(ii).
    (uu) Retain on board, transship, or land any fish caught with a 
large-mesh drift gillnet (mesh size >=14 inches) later than 4 days 
after the effective date of a drift gillnet fishery closure and before 
the drift gillnet fishery re-opens pursuant to Sec.  660.713(h)(2)(ii).
0
4. In Sec.  660.713, add paragraph (h) to read as follows:


Sec.  660.713  Drift gillnet fishery.

* * * * *
    (h) Limits on protected species mortalities and injuries.
    (1) Maximum 2-year hard caps are established on the number of sea 
turtle and marine mammal mortalities and injuries that occur as a 
result of observed interactions with large-mesh drift gillnets (mesh 
size >=14 inches) deployed by vessels registered for use under HMS 
permits. Mortalities and injuries during the current fishing season 
(May 1 through January 31) and the previous fishing season are counted 
towards the hard caps. The mortality and injury hard caps are as 
follows:

[[Page 70663]]



------------------------------------------------------------------------
                                                              Rolling 2-
                          Species                             year hard
                                                                 cap
------------------------------------------------------------------------
Fin Whale..................................................            2
Humpback Whale.............................................            2
Sperm Whale................................................            2
Leatherback Sea Turtle.....................................            2
Loggerhead Sea Turtle......................................            2
Olive Ridley Sea Turtle....................................            2
Green Sea Turtle...........................................            2
Short-fin Pilot Whale (CA/OR/WA stock).....................            4
Bottlenose Dolphin (CA/OR/WA stock)........................            4
------------------------------------------------------------------------

    (2) Upon determination by the Regional Administrator that, based on 
data from NMFS observers or a NMFS Electronic Monitoring program, the 
fishery has reached any of the protected species hard caps during a 
given 2-year period:
    (i) As soon as practicable, the Regional Administrator will file 
for publication at the Office of the Federal Register a notification 
that the fishery has reached a protected species hard cap. The 
notification will include an advisement that the large-mesh drift 
gillnet (mesh size >=14 inches) fishery shall be closed, and that drift 
gillnet fishing in the U.S. West Coast Exclusive Economic Zone by 
vessels registered for use under HMS permits will be prohibited 
beginning at a specified date and ending at a specified date. Drift 
gillnet fishing will then be allowed beginning May 1 of the year when 
observed mortality and injury of each species during the previous May 1 
through January 31 fishing season is below its hard cap value. 
Coincidental with the filing of the notification, the Regional 
Administrator will also provide actual notice that the large-mesh drift 
gillnet (mesh size >=14 inches) fishery shall be closed, and that drift 
gillnet fishing in the U.S. West Coast Exclusive Economic Zone by 
vessels registered for use under HMS permits will be prohibited 
beginning at a specified date, to all holders of HMS permits with a 
drift gillnet endorsement via VMS communication, postal mail, and a 
posting on the NMFS regional Web site.
    (ii) Beginning on the fishery closure date published in the Federal 
Register and indicated by the Regional Administrator in the 
notification provided to vessel operators and permit holders under 
paragraph (h)(2)(i) of this section, and until the specified ending 
date, the large-mesh drift gillnet (mesh size >=14 inches) fishery 
shall be closed. During the closure period commercial fishing vessels 
registered for use under HMS permits may not be used to target, retain 
on board, transship, or land fish captured with a large-mesh drift 
gillnet (mesh size >=14 inches), with the exception that any fish 
already on board a fishing vessel on the effective date of the notice 
may be retained on board, transshipped, and/or landed, to the extent 
authorized by applicable laws and regulations, provided such fish are 
landed within 4 days after the effective date published in the fishing 
closure notice.

[FR Doc. 2016-24780 Filed 10-12-16; 8:45 am]
 BILLING CODE 3510-22-P