[Federal Register Volume 83, Number 61 (Thursday, March 29, 2018)]
[Rules and Regulations]
[Pages 13428-13431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06316]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 161024999-8248-02]
RIN 0648-BG40


Fisheries Off West Coast States; Pacific Coast Groundfish Fishery 
Management Plan; Authorization of an Oregon Recreational Fishery for 
Midwater Groundfish Species

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

ACTION: Final rule.

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SUMMARY: This final rule authorizes the use of midwater long-leader 
gear for recreational fishing in waters seaward of a boundary line 
approximating the 40 fathoms depth contour off the coast of Oregon. 
Both charter and private vessels are authorized to use midwater long-
leader gear seaward of the 40 fathom seasonal depth closure, while 
being monitored with the existing Oregon Ocean Recreational Boat 
Sampling (ORBS) program. The use of midwater long-leader gear is 
intended to limit bycatch of overfished and rebuilding rockfish 
species, such as bottom-dwelling yelloweye rockfish, while still 
allowing for the catch of abundant midwater species such as yellowtail 
and widow rockfish. The season will occur between April and September, 
months currently subject to depth restrictions.

DATES: Effective April 1, 2018.

FOR FURTHER INFORMATION CONTACT: Christopher Biegel, phone: 503-231-
6291, fax: 503-872-2737, or email: [email protected].

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This final rule is accessible via the internet at the Office of the 
Federal Register website at http://www.federalregister.gov. Background 
information and documents are available at the NMFS West Coast Region 
website at http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html and at the Pacific Fishery Management Council's 
website at http://www.pcouncil.org.

Background

    Since 2004, NMFS has restricted Oregon recreational groundfish 
fisheries to shallow depths (<20-40 fm) during peak effort to reduce 
interactions with

[[Page 13429]]

deeper water species, especially yelloweye rockfish. The recreational 
groundfish fisheries are an important part of the local economy and 
social fabric in Oregon's coastal communities. From 2011-2015, anglers 
fished an average of 84,000 recreational groundfish trips per year in 
the Federal waters off of the Oregon coast, representing about 44 
percent of the total Oregon recreational fishery effort during this 
period. The implementation of deep-water rockfish closures in 2004 left 
several Oregon ports without any viable groundfish fishing 
opportunities.
    To increase recreational fishing opportunities in these ports and 
relieve pressure from nearshore reefs, NMFS issued exempted fishing 
permits (EFPs) to the Oregon Recreational Fishing Alliance and Oregon 
Department of Fish and Wildlife (ODFW) from 2009-2011 to test the 
viability of long-leader gear. The long-leader gear tested under this 
EFP test fishing program and authorized for use by this rule has one 
line with no more than three hooks, a sinker at the bottom, at least 30 
feet (9.14 m) between the sinker and the lowest hook, and a non-
compressible float above the hooks. This gear limits interaction with 
deeper water groundfish species that inhabit areas close to the 
seafloor by suspending the hooks well above the seafloor. In 2005, 
based in part on favorable EFP test fishing results using midwater 
long-leader gear on Oregon sport charter fishing vessels, the Council 
requested that NMFS implement regulations authorizing a midwater long-
leader fishery in the Federal waters off the Oregon coast.
    This final rule authorizes midwater long-leader recreational 
groundfish fishing seaward of a line approximating the 40 fathom depth 
curve exclusively off the coast of Oregon (42[deg]00' North latitude [N 
lat.] to 46[deg]18' N lat.) from April 1 to September 30. NMFS expects 
this gear configuration will allow recreational anglers to target 
abundant and healthy midwater species while avoiding or minimizing 
interactions with overfished rockfish species. When deploying this 
gear, anglers are authorized to use artificial lures or flies less than 
or equal to 5 inches (12.7 cm) in length. However, anglers may not use 
natural bait, or lures or flies greater than 5 inches (12.7 cm) in 
length, as was the case under the terms and conditions of the EFP. This 
final rule retains this prohibition on live bait, which was originally 
part of the EFP test fishing program to limit impacts to canary 
rockfish that were overfished at that time, because canary has only 
recently been declared rebuilt and it is prudent to take actions that 
are precautionary and limit initial impacts on newly rebuilt species. 
If desired, NMFS and the Council could work towards removing the 
prohibition in the future.
    Under the action, anglers are also prohibited from possessing 
lingcod. All other existing state and Federal groundfish regulations, 
such as bag limits and rockfish conservation areas, remain in effect. 
ODFW will monitor this fishery through its existing Ocean Recreational 
Boat Survey. The Council approved language in the definition of long-
leader gear that included a prohibition on ``large lures.'' However, 
the Council did not define this term. After consultation with ODFW, 
this final rule defines ``large lure'' as over five inches in length. 
This definition is based on industry standard lure sizes commonly used 
in the recreational fishery.

Comments and Responses

    NMFS published a proposed rule for this action on December 12, 2017 
(82 FR 60170). We received 67 comments on the proposed rule. We 
received public comments from 3 recreational fishing organizations, 2 
boat owners, 6 charter operators, 1 tackle shop, 3 EFP participants, 32 
recreational anglers, and 17 private citizens. These comments are 
discussed below.
    Comment 1: All responsive comments supported creation of the 
midwater long-leader recreational fishery.
    Response: NMFS agrees, and through this rule is promulgating 
regulations to allow recreational anglers to use midwater long-leader 
gear seaward of a line approximating the 40 fathom depth curve 
exclusively off the coast of Oregon (42[deg]00' N lat. to 46[deg]18' N 
lat.) from April 1 to September 30.
    Comment 2: NMFS received five comments on the proposed gear 
configuration. Two recreational fishermen and one EFP participant 
commented in support of the gear as proposed. One charter operator 
proposed changes that would make the gear less likely to tangle. One 
recreational angler asked that the regulations exempt small vessels 
such as kayaks from the long-leader gear requirements while 
participating in the fishery.
    Response: When the Council was developing this action, Council 
members discussed the need to develop regulations that reflect the 
same, or as similar as possible to, the gear configurations used in the 
EFP to test this fishery. The purpose of this was to ensure that 
impacts from this fishery would be similar to what occurred under the 
EFP. Because NMFS did not exempt small vessels, such as kayaks, from 
the EFP, or test the proposed changes suggested by the commentor in the 
EFP, it is difficult for NMFS to accurately predict the impacts 
associated with these suggestions. Therefore, NMFS will not remove or 
alter the required long-leader gear configuration, or allow exemptions 
for small vessels such as kayaks, without further Council discussion 
and consideration of these changes.
    Comment 3: NMFS received sixteen comments on the proposed 
prohibition on natural bait. One charter operator, two EFP 
participants, and one recreational angler commented in support of the 
bait prohibition, stating that bait was unnecessary to produce good 
catches. One boat owner, one recreational fishing organizations, one 
tackle shop, one charter operator, seven recreational anglers, and one 
private citizen commented in opposition to the natural bait 
prohibition. Of these, one charter operator and one recreational angler 
commented that natural bait was prohibited during the EFP test fishing 
to avoid bycatch of canary rockfish. Because the canary rockfish stock 
is rebuilt, and can now be retained, they commented that the bait 
prohibition is no longer necessary.
    Response: As noted above in the background section, NMFS will not 
remove the prohibition on the use of live bait for this fishery at this 
time. The prohibition on the use of live bait was included in the terms 
and conditions of the EFPs used to test this fishery as a means to 
protect the overfished canary rockfish by reducing interactions with 
the canary rockfish. Since then, canary rockfish has been declared 
rebuilt. However, NMFS is maintaining the prohibition because NMFS does 
not know the impacts to canary rockfish that could occur if this 
prohibition were removed. Those impacts were not tested or evaluated in 
the EFP test fishing and associated analysis. Additionally, because 
canary rockfish has only recently been rebuilt, NMFS believes it is 
important to take a precautionary approach in developing fisheries that 
could impact this newly rebuilt species. However, starting that 
discussion with the Council now would interfere with NMFS's goal to 
have this rule in place for the 2018 fishing season. April 1 is the 
start of the fishing season, ensuring that this rule is effective on 
April 1 will allow fishermen to access areas previously subject to 
depth restrictions for the entire season. If desired, NMFS and the 
Council could choose to work towards removing the prohibition in the 
future.

[[Page 13430]]

Changes From the Proposed Rule

    We adjusted the proposed rule's regulatory text defining lure size 
to make it clearer and to assist in enforcement. The text ``not to 
exceed 5 inches in length'' was changed to ``less than or equal to 5 
inches in length.''

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act, 16 U.S.C. 1854(b)(1)(A), the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the Pacific Coast Groundfish Fishery Management Plan, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866.
    This final rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    Because this rule relieves a restriction, it is not subject to the 
30-day delayed effectiveness provision of the Administrative Procedure 
Act (5 U.S.C. 553(d)(1)). This final rule allows recreational anglers 
to target groundfish using midwater long-leader gear, from April 1 to 
September 30, in waters seaward of a boundary line approximating the 40 
fathoms depth contour off the coast of Oregon. These months were 
previously subject to depth restrictions. Therefore, NMFS is setting 
the effective date for this rule as April 1, 2018, to match the start 
of the fishing season and allow recreational anglers the opportunity to 
use long-leader gear for the duration of the 2018 fishing season.

Final Regulatory Flexibility Analysis

    Section 604 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, 
requires federal agencies to prepare a final regulatory flexibility 
analysis (FRFA) for each final rule. A FRFA was prepared and 
incorporates the Initial Regulatory Flexibility Analysis (IRFA) and 
includes a summary of the analyses completed to support the action are 
included below. A statement of the need for, and the objectives of, 
this action is contained in the proposed rule and the preamble to this 
final rule, and is not repeated here. NMFS also prepared a Regulatory 
Impact Review (RIR) for this action. A copy of the RIR/FRFA is 
available from NMFS (see the Electronic Access section of this 
preamble). A summary of the FRFA, per the requirements of RFA section 
604 follows.
Significant Issues Raised by the Public in Response to the IRFA, and a 
Statement of Any Changes Made in the Final Rule as a Result of Such 
Comments
    There were no issues raised about the IRFA in the public comments; 
therefore no changes were made with regard to issues discussed in the 
IRFA.
Description and Estimate of the Number of Small Entities To Which the 
Rule Applies
    For RFA purposes only, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
engaged in commercial fishing (NAICS code 11411) 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 $11 million for all its 
affiliated operations worldwide.
    The SBA defines a small business as one that is:

 Independently owned and operated;
 Not dominant in its field of operation;
 Has annual receipts that do not exceed--
    [cir] $20.5 million in the case of commercial finfish harvesting 
entities (NAIC \1\ 114111)
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    \1\ The North American Industry Classification System (NAICS) is 
the standard used by Federal statistical agencies in classifying 
business establishments for the purpose of collecting, analyzing, 
and publishing statistical data related to the U.S. business 
economy.
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    [cir] $5.5 million in the case of commercial shellfish harvesting 
entities (NAIC 114112)
    [cir] $7.5 million in the case of for-hire fishing entities (NAIC 
114119); or
 Has fewer than--
    [cir] 750 employees in the case of fish processors; or
    [cir] 100 employees in the case of fish dealers.

    This final rule impacts recreational fish harvesting entities 
engaged in the Pacific Coast groundfish fishery. An estimated 104 
recreational charter entities targeted groundfish in Oregon in 2014. 
Each of these vessels had an estimated average revenue of $35,743 from 
groundfish, from a total annual average revenue of $116,453, with other 
significant revenue earned in the salmon, tuna/albacore, and shellfish 
fisheries.
    In 2015 there were 106,504 angler trips in the Oregon recreational 
groundfish fisheries. This accounted for $14,225,329 in trip-related 
expenses (excludes durable goods) and 327 jobs in the state of Oregon.
    Many charter operations in Oregon earn a majority of their revenue 
from salmon fishing, however given the natural variability of the 
salmon fishery year to year, there is a potential for more commercial 
charter operations to turn to groundfish if the salmon fishery 
declines.
Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    There are no new reporting and recordkeeping requirements 
associated with this rule.
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
    The economic impact of the measures in this rule are discussed in 
section 3.4 of the final Environmental Assessment (EA) (see the 
Electronic Access section of this preamble) and are not repeated here. 
This rule is expected to give recreational charter entities in Oregon 
increased flexibility to pursue groundfish fishing opportunities, which 
is expected to provide positive economic impacts. The rule does not 
limit any existing activity or impose any mandatory new costs on the 
fleet, so the overall benefit to small entities is expected to be 
slightly positive, as some or most vessels may not choose to 
participate in the midwater fishery due to increased fuel costs from 
the distance required to travel, and because of midwater gear 
requirements.
    The EA analyzed three alternatives in addition to a no action 
alternative. The preferred alternative (Alternative 1) allows private 
and charter recreational vessels use long-leader gear seaward of the 40 
fm depth curve from April to September. The other two alternatives 
would have allowed the same vessels to use long-leader gear seaward of 
the 40 fm depth curve from July to September (Alternative 2) or in the 
month of August (Alternative 3). All of the action alternatives are 
expected to result in minor beneficial economic impacts, with the 
preferred alternative providing the largest window of time for the 
recreational harvest to occur, and thus providing the greatest likely 
economic benefits. As all of the alternatives would provide positive 
benefits, there were no alternatives rejected that would have mitigated 
adverse effects on small entities.

[[Page 13431]]

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS will send a small entity compliance guide 
to interested parties via the groundfish email list server. In 
addition, copies of this final rule and guides (i.e., information 
bulletins) are available from NMFS at the following website: http://
www.westcoast.fisheries.noaa.gov/.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Reporting and recordkeeping requirements.

    Dated: March 23, 2018.
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.  660.351, add in alphabetical order the definition of 
``long-leader gear'' as follows:


Sec.  660.351   Recreational fishery--definitions.

* * * * *
    Long-leader gear (also known as Holloway gear) means fishing gear 
with the following: One fishing line, deployed with a sinker and no 
more than three hooks, with a minimum of 30 feet (9.14 meters) between 
the sinker and the lowest hook, and a non-compressible float attached 
to the line above the hooks. The gear may be equipped with artificial 
lures and flies less than or equal to 5 inches in length. Natural bait, 
and lures or flies greater than 5 inches in length, may not be used.
* * * * *

0
3. In Sec.  660.360, paragraphs (c)(2)(i)(B) and (c)(2)(iii)(B) are 
revised to read as follows:


Sec.  660.360  Recreational fishery--management measures.

* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (B) Recreational rockfish conservation area (RCA). Fishing for 
groundfish with recreational gear is prohibited within the recreational 
RCA, a type of closed area or groundfish conservation area. It is 
unlawful to take and retain, possess, or land groundfish taken with 
recreational gear within the recreational RCA. A vessel fishing in the 
recreational RCA may not be in possession of any groundfish. [For 
example, if a vessel fishes in the recreational salmon fishery within 
the RCA, the vessel cannot be in possession of groundfish while within 
the RCA. The vessel may, however, on the same trip fish for and retain 
groundfish shoreward of the RCA on the return trip to port.] Off 
Oregon, from April 1 through September 30, recreational fishing for 
groundfish is prohibited seaward of a recreational RCA boundary line 
approximating the 40 fm (73 m) depth contour, except that fishing for 
flatfish (other than Pacific halibut) is allowed seaward of the 40 fm 
(73 m) depth contour when recreational fishing for groundfish is 
permitted, and fishing with long-leader gear (as defined in Sec.  
660.351) is allowed seaward of the 40 fm (73 m) depth contour (i.e., 
within the RCA) from April 1 through September 30. Coordinates for the 
boundary line approximating the 40 fm (73 m) depth contour are listed 
at Sec.  660.71.
* * * * *
    (iii) * * *
    (B) Lingcod. There is a 3 fish limit per day for lingcod from 
January 1 through December 31. The minimum size for lingcod retained in 
the Oregon recreational fishery is 22 in (56 cm) total length. For 
vessels using long-leader gear (as defined in Sec.  660.351) and 
fishing inside the recreational RCA, possession of lingcod is 
prohibited.
* * * * *
[FR Doc. 2018-06316 Filed 3-28-18; 8:45 am]
 BILLING CODE 3510-22-P