[Federal Register Volume 85, Number 26 (Friday, February 7, 2020)]
[Rules and Regulations]
[Pages 7246-7251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02458]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 200204-0041]
RIN 0648-BJ58


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: Final rule; request for comments.

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SUMMARY: NMFS is publishing 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/Oregon drift 
gillnet (DGN) fishery for swordfish and thresher shark (14 inch (36 cm) 
minimum mesh size) 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 will be dependent on when the hard 
cap is reached. The implementation of hard caps is intended to manage 
the fishery under the MSA to protect certain non-target species. The 
publication of this final rule is necessary to comply with a court 
order issued January 8, 2020, as further described in SUPPLEMENTARY 
INFORMATION below.

DATES: The final rule is effective March 9, 2020. Comments on the final 
rule and supporting documents must be submitted in writing by March 23, 
2020.

ADDRESSES: You may submit comments on this document, 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 https://www.regulations.gov/docket?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 final Environmental Assessment (EA), Regulatory 
Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA), and 
other supporting documents are available via the Federal eRulemaking 
Portal: https://www.regulations.gov/docket?D=NOAA-NMFS-2016-0123 or by 
contacting Lyle Enriquez, NMFS West Coast Region, 501 W. Ocean 
Boulevard, Suite 4200, Long Beach, CA 90802-4213, 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 inch (36 cm) 
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 
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. In 1986, a 
closure was established within 75 miles (121 km) of the California 
mainland from June 1 through Aug 14 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 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, June 8, 2007). The number of 
active vessels in the DGN fishery has remained under 50 vessels since 
2003, with an average of 20 active vessels per year from 2010 through 
2018.

[[Page 7247]]

    NMFS' fleet-wide observer coverage target has been between 20 and 
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 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. 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).
    The proposed rule to implement this FPA was published in the 
Federal Register on October 13, 2016, following NMFS' determination 
that it was consistent with the fishery management plan, plan 
amendment, the MSA, and other applicable law. Following public comment 
on the proposed rule, NMFS conducted further analysis of the economic 
effects of the action. This new analysis identified significant adverse 
short-term economic effects that were not identified at the proposed 
rule stage. Citing inconsistency with the purpose and need for the 
action and MSA National Standard 7 (i.e., conservation and management 
measures shall, where practicable, minimize costs and avoid unnecessary 
duplication), NMFS withdrew the proposed rule on June 12, 2017. On July 
12, 2017, an advocacy organization sued to compel publication of the 
proposed regulations, citing the theory that NMFS' initial 
determination under MSA Sec.  304(b)(1)(A) could not be reversed by a 
subsequent negative determination, namely that the proposed regulations 
did not comport with applicable law. On October 24, 2018, the United 
States District Court for the Central District of California found that 
since NMFS had not published the proposed regulations as-is nor 
consulted with the Council on revisions after making an initial 
determination under MSA Sec.  304(b)(1)(A) that they were consistent 
with applicable law, NMFS had exceeded its authority under the MSA and 
the Administrative Procedure Act, and remanded to NMFS for further 
action.
    On January 8, 2020, the Court ordered NMFS to publish a final rule 
for hard caps by February 7, 2020. The order also states that NMFS 
shall consult with the Pacific Fishery Management Council (Council) 
before making any revisions to the proposed regulations. Because the 
Council's next meeting is not until March 2020, NMFS does not have an 
opportunity to consult with the Council on revisions to the regulations 
before the Court's deadline. Therefore, NMFS is publishing the hard 
caps regulations as they were originally proposed, without changes to 
the regulatory text, in accord with the order. After publishing the 
rule, NMFS intends to review all options for addressing the economic 
impacts to DGN fishery participants through a separate rulemaking, 
beginning with engagement of the Council to propose revisions through 
the Council's normal process. NMFS is soliciting public comment on this 
final rule to gather information that can be used to develop such a 
separate rulemaking.

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 the Endangered Species Act (ESA) and the 
Marine Mammal Protection Act (MMPA) under MSA Section 303(b)(12) and 
National Standard 9. This final rule implements the Council's FPA, 
which establishes 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 review 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 will 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 is reached, the DGN fishery will close until the 2-
year (i.e., two fishing seasons) mortality and injury for all species 
falls below their hard cap value. The DGN fishery will then re-open on 
May 1 of the subsequent fishing season. The Council recommended hard 
cap values while DGN observer coverage is less than 75 percent; the 
Council will revisit hard cap values when observer coverage becomes 
greater than 75 percent.

     Table 1--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, the fishery will be closed. Hard 
caps will be assessed over a rolling two-year period, by comparing the 
total number of mortalities and injuries during the current and 
previous fishing seasons to the hard caps. If a hard cap is reached or 
exceeded, the fishery will be closed until the two-year total of 
mortalities and injuries falls below the hard cap values for all 
species. Once the two-year total falls below the hard cap value for all 
species, the fishery will reopen on May 1 of the following fishing 
season. NMFS will publish a document in the Federal Register announcing 
the specified beginning and end dates of the closure. Upon the 
effective date identified in the Federal Register document, a DGN 
vessel may not be used to target, retain on board, transship, or land 
any additional fish

[[Page 7248]]

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 of 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 mail and a posting 
on the NMFS regional website.

Public Comments and Responses

    NMFS received 20 comments, some of which included attachments and 
lists of signatories, during the comment period on the proposed rule. 
Of these, five comments supported the proposed rule as-is, nine 
supported the proposed rule and recommended additional or more 
stringent measures, five opposed the proposed rule entirely, and one 
opposed the proposed rule but recommended alternative approaches to 
regulating takes of non-target species by the DGN fishery. Major themes 
of the summarized comments and NMFS' responses are below.

Theme 1: The Proposed Rule Would Cause Significant Economic Impacts to 
DGN Fishery Participants

    All six of the comments in opposition to the proposed rule, and one 
comment in support of the proposed rule, stated concerns that fishery 
closures resulting from hard caps on protected species takes would 
cause significant economic harm to DGN fishery participants, many of 
whom are dependent on the fishery for a significant portion of their 
annual income. Commenters expressed a desire for more detailed economic 
analysis of the potential effects of fishery closures under the 
proposed rule. One comment stated that closures resulting from the 
proposed rule would force seafood processors to increase their imports 
of foreign-caught swordfish, due to reductions in domestic supply. One 
comment which generally supported the proposed rule recommended NMFS 
establish a compensation program to remunerate fishers for lost income 
during a potential closure.
    Response: Following public comment on the proposed rule and 
associated analyses, NMFS conducted further economic analysis that 
found significant short-term economic effects not identified at the 
proposed rule stage. While the DGN fishery is not expected to close 
often under the regulations, the adverse economic effects to DGN 
participants in the event of a closure would be significant. The final 
EA, FRFA, and RIR demonstrate that DGN participants are highly 
dependent on the fishery for their annual landings and revenue, and 
they have little opportunity to offset economic losses by participating 
in other existing fisheries during a DGN closure.

Theme 2: Desire for More Stringent Hard Caps Than Those in the Proposed 
Rule

    Seven comments in support of the proposed rule expressed a desire 
for lower caps and/or a shorter management time horizon than the 2-year 
rolling hard caps outlined in the proposed rule. Of these comments, 
five recommended NMFS adopt Alternative 5 from the EA, which would 
establish one-year hard caps based on entanglements, rather than 2-year 
rolling hard caps based on mortality and serious injury (M&SI).
    Response: The Council considered several other alternatives for 
this action. Descriptions of each of the alternatives are included in 
the EA and RIR. A rationale for why the other action alternatives were 
rejected is provided below.
    Alternatives 1 through 4 presented significant challenges to 
implementation compared to the preferred alternative because they would 
use estimated M&SI based on observer coverage levels to evaluate the 
fishery against hard caps. The preferred alternative uses observed 
mortality and injury without the need to determine serious injury or to 
extrapolate data based on observer coverage in-season 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 further delay 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, thus 
influencing the hard cap limits. 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 variance in 
observer coverage levels over the course of a fishing season.
    In response to the identified implementation issues, Council 
members developed Alternative 5 with two sub-Alternatives. Under 
Alternative 5 sub-option 1, the DGN fishery would be expected to meet 
or exceed a hard cap 7out of 13 fishing seasons, using historical 
observations (there is, however, less fishing effort in recent years, 
so the fishery is expected to close fewer than 7 times under this 
Alternative). Under 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. The 
economic analysis showed that Alternative 5 would not be conducive to 
supporting an economically viable swordfish fishery.
    Due to implementation issues identified with Alternatives 1 through 
4, and the large decreases in effort, landings, revenue, and profits 
associated with Alternatives 5a and 5b, Alternative 6 was chosen as the 
preferred alternative. Alternative 6 was considered the least cost 
action alternative of those that did not present significant 
implementation issues.

Theme 3: Need for Increased Observer Coverage

    Eight comments in support of the proposed rule expressed a desire 
to increase observer coverage in the DGN fishery, ideally to 100 
percent. Commenters voiced concern that a hard caps regime with 
incomplete observer coverage may not adequately prevent takes of 
protected species. One comment in opposition to the proposed rule 
shared a similar concern, and recommended NMFS avoid the use of ratio 
estimates in determining total takes for the fishery under incomplete 
observer coverage.
    Response: The Council developed the hard cap values based on less 
than 100 percent coverage, and indicated that they would revisit the 
values when observer coverage reaches 75 percent or greater in the DGN 
fishery. In 2015, the Council recommended increasing DGN monitoring to 
100 percent using on-board observers or electronic monitoring. That 
action would be undertaken separately, and increased observer coverage 
was not a part of the proposed rule.

Theme 4: The Proposed Rule Is Inconsistent With MSA National Standards

    Five comments opposed the proposed rule on the grounds that it is 
not consistent with the legal requirements outlined in the MSA National 
Standards. MSA National Standard 8 states that conservation and 
management measures shall ``provide

[[Page 7249]]

for the sustained participation of [fishing] communities,'' and 
``minimize adverse economic impacts on such communities.'' Commenters 
expressed concern that fishery closures under the proposed rule would 
cause economic harm to fishery participants to a degree which could 
compromise the economic viability of the DGN fishery and preclude 
continued participation. Two commenters expressed additional concerns 
that the hard caps in the proposed rule are arbitrary, poorly defined, 
and not based on the best available science, therefore making them 
inconsistent with MSA National Standard 2.
    Response: NMFS initially found the proposed rule consistent with 
MSA, its National Standards, and other applicable laws. Following 
public comment on the proposed rule, NMFS conducted additional economic 
analysis and found the regulations to be inconsistent with MSA National 
Standard 7 (i.e., conservation and management measures shall, where 
practicable, minimize costs and avoid unnecessary duplication). NMFS 
intends to review all options for addressing the economic impacts to 
DGN fishery participants through a separate rulemaking, beginning with 
engagement of the Council to propose revisions through the Council's 
normal process. Such a rulemaking would need to be consistent with the 
other MSA National Standards, including 2 and 8.

Theme 5: The Proposed Rule is Unnecessary and Would Not Provide a 
Significant Benefit to Protected Species

    Two commenters opposed the proposed rule on the grounds that the 
recent levels of bycatch impacts by the DGN fishery do not warrant 
additional regulation under MSA. One commenter questioned why 
additional regulation under MSA is needed, given that management 
schemes for endangered species and marine mammals already exist under 
ESA and MMPA. This commenter expressed concern that the proposed rule 
would diminish the effectiveness of the existing take reduction team 
(TRT) process under MMPA, and recommended that NMFS instead consult 
with the Pacific Ocean Cetacean TRT on processes to improve performance 
of the DGN fishery.
    Response: Take of ESA-listed species in the DGN fishery is 
currently within the values authorized by an Incidental Take Statement 
issued as part of a 2013 ESA Biological Opinion on DGN fishing 
activities. Take of all marine mammals in the DGN fishery is currently 
below their Potential Biological Removal levels under the MMPA. The 
Council recommended protected species hard caps for the DGN fishery to 
address MSA National Standard 9 and Section 303 of the MSA (i.e., to 
minimize bycatch and bycatch mortality and conserve non-target species 
to the extent practicable).

Theme 6: The Proposed Rule May or May Not Cause a ``Transfer Effect'' 
of Protected Species Bycatch

    Two comments in opposition to the proposed rule expressed a concern 
that closing the DGN fishery due to hard caps violations would result 
in increased effort by foreign fisheries with different management 
regimes and potentially greater bycatch impacts, a theory known as the 
``transfer effect.'' One commenter in support of the proposed rule 
acknowledged and challenged this notion, claiming there is no evidence 
to suggest such a response by foreign fisheries to the level of effort 
by U.S. domestic fisheries.
    Response: There may be a market substitute if fewer swordfish are 
caught by DGN gear. For example, the Hawaii longline fishery lands 
swordfish on the U.S. West Coast and the U.S. imports swordfish from 
foreign fisheries. If swordfish buyers on the U.S. West Coast increase 
their purchases of swordfish from sources with less bycatch, then there 
could be a minor beneficial impact to the environment. If buyers 
increase purchases of swordfish from sources with higher bycatch, 
increased negative effects to the environment would be expected. 
However, NMFS' analysis did not predict which source or sources would 
fill the market demand in order to attempt to quantify these effects.

Classification

    NMFS' initial determination of consistency with National Standard 7 
of the Magnuson-Stevens Fishery Conservation and Management Act, and 
related concerns arising after the publication of the proposed rule, 
are discussed above. The Administrator, West Coast Region, NMFS, 
determined that the rule is consistent with all other applicable laws.
    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 Number: 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 final EA for this rule and concluded that there 
will be no significant impact on biological resources as a result of 
this action, based on the analysis contained in the EA. The action may 
result in significant adverse socioeconomic impacts in the event of a 
fishery closure. The 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 
final preferred alternative would result in a limited economic impact 
when compared to the other action alternatives (a more detailed 
explanation can be found in the FRFA). A copy of the final EA is 
available from NMFS (see ADDRESSES).
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    This final rule is not an Executive Order 13771 regulatory action 
because this action is not significant under 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.
    An initial regulatory flexibility analysis (IRFA) was prepared at 
the proposed rule stage, as required by section 603 of the RFA. This 
IRFA was finalized as an FRFA, recognizing significant adverse short-
term economic effects that were not identified in the IRFA, on January 
24, 2020. The FRFA describes the economic impact this final rule is 
expected to 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 ).

[[Page 7250]]

    There are currently 60 individual permit holders with valid Federal 
limited entry drift gillnet permits; however, many permits remain 
inactive. On average, 20 vessels participated in the fishery each year 
from 2010 through 2018. In 2018, 21 vessels participated in the fishery 
with total landings equaling 201 metric tons (mt) (round weight), about 
10.1 mt on average per vessel. Total landings included 26 mt of common 
thresher shark, 11 mt of shortfin mako shark, 145 mt of swordfish, and 
19 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 final 
preferred alternative. Compared to the baseline, the regulatory action 
(i.e., based on Alternative 6) is expected to result in an ongoing 
$4,596 annual loss per vessel, based on a DGN fleet size of 20 vessels. 
These potential long-term adverse economic effects of the regulations 
appear to be limited. While the DGN fishery would not be expected to 
close often under the regulations, the short-term adverse economic 
effects to DGN participants in the event of any closure would be 
significant. The final EA, FRFA, and RIR demonstrate that DGN 
participants are highly dependent on the fishery for their annual 
landings and revenue and they have little opportunity to offset 
economic losses by participating in other fisheries during a DGN 
closure. 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. Alternative 6 is the least costly alternative that did not 
present significant implementation issues.
    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 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 significant 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 7 out of 13 fishing 
seasons, using historical observations (there is, however, less fishing 
effort in recent years, so the fishery would be expected to close fewer 
than 7 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. The results of the economic analysis indicate that Alternative 
5 would have greater economic impacts and not be conducive to 
supporting an economically viable swordfish fishery.
    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 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 rule has an equal effect on 
all of these small entities. Therefore, the action will impact all 
these small entities in the same manner. This rule is 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: February 4, 2020.
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.  660.702, 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 7251]]



                        Table 1 to paragraph (h)
------------------------------------------------------------------------
                                                             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 two 
May 1 through January 31 fishing seasons 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 website.
    (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 document 
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 document.

[FR Doc. 2020-02458 Filed 2-6-20; 8:45 am]
 BILLING CODE 3510-22-P