[Federal Register Volume 86, Number 88 (Monday, May 10, 2021)]
[Rules and Regulations]
[Pages 24746-24749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09845]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 210504-0098]
RIN 0648-BK18


Fisheries of the Exclusive Economic Zone Off Alaska; Removing the 
Processing Restrictions on Incidentally Caught Squid and Sculpin 
Species in the Gulf of Alaska and Bering Sea and Aleutian Islands 
Groundfish Fisheries

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 remove the regulatory restriction 
that limits processing of squids and sculpins to fishmeal only. This 
final rule is necessary to allow the processing and sale of squids and 
sculpins as products other than fishmeal and thereby to help prevent 
waste of the incidental catch of these ecosystem component (EC) 
species. This final rule is intended to promote the goals and 
objectives of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), the Fishery Management Plans (FMP) for 
Groundfish of the Gulf of Alaska (GOA) and Bering Sea and Aleutian 
Islands Management Area (BSAI) (Groundfish FMPs), and other applicable 
laws.

DATES: Effective June 9, 2021.

ADDRESSES: Electronic copies of the Regulatory Impact Review (referred 
to as the ``Analysis'') and the National Environmental Policy Act 
Categorical Exclusion prepared for this final rule may be obtained from 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Megan Mackey, 907-586-7228.

SUPPLEMENTARY INFORMATION: 

Authority for Action

    NMFS manages the groundfish fisheries in the exclusive economic 
zone (EEZ) of the BSAI and GOA under the Groundfish FMPs. The North 
Pacific Fishery Management Council (Council) prepared the Groundfish 
FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et 
seq. Regulations governing U.S. fisheries and implementing the 
Groundfish FMPs appear at 50 CFR parts 600 and 679.
    The proposed rule to implement this action was published in the 
Federal Register on February 26, 2021, with comments invited through 
March 29, 2021 (86 FR 11716). NMFS received 5 comment letters 
containing a total of 3 unique comments. The comments are summarized 
and responded to under the heading Comments and Responses below.
    A detailed review of the provisions and rationale for this action 
is provided in the preamble to the proposed rule (86 FR 11716, February 
26, 2021) and is briefly summarized in this final rule.

Background

    Squids and sculpins are defined in the EC category of the 
Groundfish FMPs. Directed fishing for EC species is prohibited. 
Incidental catch of squid species is retained in some groundfish 
fisheries and often utilized to prevent waste. Typically, sculpins are 
not retained but can be in some circumstances.
    The Council's 2017 and 2019 actions to reclassify squids and 
sculpins, respectively, into the EC category of the Groundfish FMPs 
were based on the best available scientific information and were 
consistent with the National Standard (NS) guidelines. The Federal 
rulemakings to implement the Council's actions prohibited the use or 
sale of incidentally caught squids and sculpins unless processed into 
fishmeal, in accordance with the regulations governing other EC species 
(85 FR 41427, July 10, 2020 (sculpin); 83 FR 31460, July 6, 2018 
(squid)). The purpose of this action is to provide flexibility for the 
use of incidentally caught squids and sculpins, thereby reducing the 
waste of these EC species, and aligning the regulations with the long-
standing use of incidentally caught squid species as bait.
    The following sections of this preamble provide:
     A brief history of the restriction on processing and sale 
of squids and sculpins,
     The expected effects of and need for this action, and
     A description of the regulatory change made by this final 
rule.

Brief History of the Restriction on Processing and Sale of Squids and 
Sculpins

    EC species are stocks that a fishery management council (council) 
or the Secretary of Commerce (Secretary) has determined do not require 
conservation and management, but desire to list in an FMP in order to 
achieve ecosystem management objectives (50 CFR 600.305(c)(5) and 
(d)(13) and 50 CFR 600.310(d)(1)). Retention and personal use of some 
EC species in the Groundfish FMPs (forage fish, grenadiers, squids, and 
sculpins) is allowed up to the applicable maximum retainable amount 
(MRA), which is the proportion or percentage of retained catch of a 
species closed for directed fishing (incidental catch species) to the 
retained catch of a species open for directed fishing (basis species) 
(50 CFR 679.20(e) and (i)). Current Federal regulations at 50 CFR 
679.20(i)(4) and (5) prohibit the processing, barter, trade, and sale 
of EC species in Alaska (forage fish, grenadiers, squids, and sculpins) 
unless they are processed as fishmeal.
    Amendment 96 to the BSAI FMP and Amendment 87 to the GOA FMP 
(Amendments 96/87) (75 FR 61639, October 6, 2010) established the EC 
category and designated prohibited species (defined in Table 2b to 50 
CFR part 679, to include salmon, steelhead

[[Page 24747]]

trout, crab, halibut, and herring) and forage fish (defined in Table 2c 
to 50 CFR part 679 and Sec.  679.20(i)) as EC species in both the 
Groundfish FMPs.
    When Amendments 96/87 were recommended by the Council in 2010, the 
Council's stated intention was that prohibited species and forage fish 
would be in the new EC category. Because the retention, processing, and 
sale of prohibited species and forage fish was not permitted before 
their placement in the EC category, those restrictions remained in 
place and unchanged under Amendments 96/87. The Council did not 
indicate whether it intended that species added to the EC category at a 
later date would be subject to those same restrictions.
    When the Council took action to recommend reclassifying squids in 
the EC category in 2017, harvesters and processors expected that 
incidentally caught squids in the groundfish fisheries could be 
processed and sold as bait, consistent with long-standing and common 
practice. Similarly, when the Council recommended reclassifying 
sculpins in the EC category in 2019, there was some interest in 
exploring food fish markets for incidentally caught sculpins, which 
have rarely been retained or processed. However, once squids and 
sculpins were reclassified in the EC category, existing Federal 
regulations at 50 CFR 679.20(i) applied to all EC species and 
prohibited the processing, barter, trade, and sale of squids and 
sculpins as anything other than fishmeal.
    In October 2019, the Council initiated an analysis to reconsider 
the processing and sale restrictions on squids and sculpins in the EC 
category. No other species in the EC category were considered in this 
analysis. As a result, processing and sale restrictions will remain in 
place for prohibited species, forage fish, and grenadiers under this 
action.

The Expected Effects of and Need for This Action

    Pursuant to this action, NMFS continues to manage squids and 
sculpins as EC species in the Groundfish FMPs. Directed fishing of 
squids and sculpins continues to be prohibited, and retention of squids 
and sculpins up to the MRA of 20 percent continues to be permitted. 
Recordkeeping and reporting requirements are maintained. The only 
change to current regulations is to remove the processing restrictions 
limiting processing and sale of squids and sculpins to fishmeal and 
include new regulations on allowable fish products for squids and 
sculpins. Specifically, the regulations provide that retained catch of 
squids and sculpins not exceeding the MRA may be sold to a processor or 
processed into any product form--including (but not limited to) 
fishmeal, bait, and whole fish/food fish--for sale, barter, or trade. 
All other regulations pertaining to EC species remain in place.
    The Council determined, and NMFS agrees, that this action will 
provide groundfish harvesters and processors with additional 
flexibility to conduct their business in an efficient manner by 
providing them with more options for the processing and sale of 
incidentally caught squids and sculpins up to the MRA, and will help 
reduce waste of these incidentally caught species.

Final Rule

    This final rule removes the regulatory restriction that limits 
processing of incidentally caught squids and sculpins to fishmeal only 
and allows retained catch of squids and sculpins not exceeding the MRA 
to be sold to a processor or to be processed into any product form. 
This final rule is necessary to allow the processing and sale of squids 
and sculpins as products other than fishmeal and to help prevent waste 
of the incidental catch of these species. To make that change, this 
final rule revises language in 50 CFR 679.20(i).

Comments and Responses

    NMFS received 5 comment letters containing a total of 3 unique 
comments.
    Comment 1: Three commenters expressed support for this action.
    Response: NMFS acknowledges these comments.
    Comment 2: One commenter expressed support while also noting a 
concern that this action could encourage the fishing industry to push 
the limits of the MRA for squids and sculpins to obtain profit.
    Response: Based on the Analysis, there is limited profit reason to 
expect the MRA to be pushed to its limits given that squids are low 
value and there is no current market for sculpins. The primary use of 
incidentally caught squids would be bait, however squids do not 
represent a significant portion of production for any processing 
community in the BSAI or GOA. In addition, the existing MRA for squids 
and sculpins of 20 percent is an appropriate and effective way to 
restrict retention while still allowing flexibility in operations. The 
MRA of 20 percent for squids and sculpins has been in place even before 
these species were moved to the EC category when there were no 
processing restrictions. At that time the instances of exceeding the 20 
percent MRA were very rare. Finally, catch monitoring is in place to 
monitor whether the MRA is exceeded. If there are overages, that would 
be a regulatory violation that could result in enforcement action.
    Comment 3: One commenter stated that the classification of squids 
and sculpins as EC species is illegal and asserted that removing 
processing restrictions on squids and sculpins is inconsistent with the 
Magnuson-Stevens Act and NMFS's regulatory guidance. Specifically, the 
commenter stated that EC species do not have conservation and 
management measures and that NMFS is not able to prevent overfishing 
consistent with NS 1 without such measures. The commenter also stated 
that classifying species as EC species does not address NS 9's 
requirements to reduce bycatch to the extent practicable. Finally, the 
commenter asserts that the classification of squids and sculpins in the 
EC category is not consistent with the NS guidelines, and that the EC 
category is not authorized by, or consistent with, the Magnuson-Stevens 
Act.
    Response: This general issue of the classification of EC species is 
outside the scope of this narrow rulemaking. However, we note that, 
when NMFS revised the NS guidelines in 2016 (81 FR 71858, October 18, 
2016), NMFS included a new regulatory section addressing stocks in need 
of conservation and management (50 CFR 600.305(c)). The concept of EC 
species had been introduced in an even earlier 2009 rulemaking to 
revise the NS guidelines, and the 2016 rule was clear that it intended 
to provide further guidance on the question of what stocks require 
conservation and management without changing the previous 2009 guidance 
on the optional usage of EC species. NMFS addressed this in the 2016 
final rule, and also responded to comments regarding whether 50 CFR 
600.305(c) was consistent with the Magnuson-Stevens Act and its 
definition of ``conservation and management'' at 16 U.S.C. 1802(5) (81 
FR 71858, see Comments and Responses Five, Seven, and Eleven). Those 
responses and the explanations regarding the 2009 and 2016 rulemakings 
are not repeated here.
    While the commenter also argues that the classification of squids 
and sculpins as EC species was not consistent with the NS and NS 
guidelines, that issue is likewise outside the scope of this specific 
rulemaking. The classification of squids and sculpins as EC species 
occurred in previous rulemakings (85

[[Page 24748]]

FR 41427, July 10, 2020 (sculpin); 83 FR 31460, July 6, 2018 (squid)). 
A detailed review of the provisions and rationale for those actions is 
provided in their accompanying rulemakings. This action does not change 
the EC status of squids and sculpins, MRAs for squids and sculpins, or 
recordkeeping and reporting requirements. The only change to current 
regulations is to remove the processing restrictions limiting 
processing and sale of squids and sculpins to fishmeal, and include new 
regulations on allowable fish products for squids and sculpins. As 
noted in Section 4.6 of the Analysis, this action would not be expected 
to increase the amount of squids and sculpins caught incidentally, as 
this action addresses only whether that incidental harvest could be 
processed and sold.
    In the prior actions classifying squids and sculpins as EC species, 
the Council and NMFS considered the Magnuson-Stevens Act's 
requirements, including the NS, and the NS guidelines. Regarding the EC 
status of squids and sculpins, if conservation and management is 
determined to be not necessary for a species, a council may recommend 
moving that species to the EC category of the FMP and adopting 
management measures for that species. Any recommendation by a council 
as to whether conservation and management is required for a species 
needs to be consistent with the NS of the Magnuson-Stevens Act. The NS 
general guidelines at 50 CFR 600.305(c) lay out a non-exhaustive list 
of 10 factors a council should consider when deciding whether stocks 
require conservation and management. The Council and NMFS considered 
these 10 factors for both squids and sculpins and determined in those 
prior actions that, because there is no directed fishing for these 
species and because there are few economic or ecological benefits to be 
gained by managing squids and sculpins as target stocks, moving these 
species to the EC category of the Groundfish FMPs was consistent with 
50 CFR 600.305(c) and was consistent with the Magnuson-Stevens Act's 
NS. Both analyses for moving squids and sculpins to the EC category 
indicated that neither species was experiencing overfishing, and, in 
the absence of a directed fishery, squids and sculpins are very 
unlikely to become overfished. The 20 percent MRA for both species, 
which remains in place as it was before both species were moved to the 
EC, along with the retention of recordkeeping and reporting 
requirements, will ensure that there is no overfishing in accordance 
with NS 1.
    In addition, the Council and NMFS considered measures to minimize 
incidental catch and mortality of EC species, consistent with NS 9, and 
to protect their role in the ecosystem, consistent with 50 CFR 
600.305(c)(5). EC species do not require specification of biological 
reference points, but will be monitored as new, pertinent scientific 
information becomes available to determine changes in their status or 
their vulnerability to groundfish fisheries. By prohibiting directed 
fishing, maintaining the MRA, and maintaining recordkeeping and 
reporting requirements, the Council and NMFS recognized in those prior 
actions that the status quo is effectively being maintained while 
precluding any significant increase in bycatch. Retention of 
recordkeeping and reporting requirements provides information necessary 
should bycatch increase to levels such that conservation and management 
become necessary.
    The Council has multiple tools to manage incidental catch, 
including maintaining a MRA to meet Council objectives. Contrary to the 
commenter's assertion that EC species do not have conservation and 
management measures, there are management measures in place for all EC 
species, consistent with 50 CFR 600.305(c)(5), and EC species continue 
to be listed and managed under the Groundfish FMPs. This includes a 
prohibition on directed fishing, a limit on retention (the 20 percent 
MRA for squids and sculpins), and recordkeeping and reporting 
requirements to track retention of EC species. As stated above, this 
rulemaking does not change any of these management measures for squids 
and sculpins (or any other EC species).
    With regard to this specific action (removing processing 
restrictions on squids and sculpins), these species would continue to 
be managed as EC species in the Groundfish FMPs. Targeting of squids 
and sculpins would continue to be prohibited, but retention of squids 
and sculpins up to the MRA of 20 percent would be permitted. 
Recordkeeping and reporting requirements would be maintained. The 
purpose of this action is to help prevent waste of the incidental catch 
of these species up to the 20 percent MRA and to align regulations with 
the longstanding use of squid bycatch as bait. Preventing waste of 
incidentally caught species increases net benefits to the nation. In 
sum, as Section 5 of the Analysis for this action indicates, this 
action is consistent with the Magnuson-Stevens Act, the NS, and NMFS 
regulatory guidance. Specifically, the removal of processing 
restrictions on squids and sculpins mitigates the waste of these 
incidentally caught species, while management measures remain in place 
as tools to minimize and monitor bycatch of these species, to protect 
the roles of these species in the ecosystem, and to determine if later 
changes are necessary to their EC status.

Changes From the Proposed Rule

    No changes were made from the proposed rule.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the Council's regulatory amendment, the Groundfish 
FMPs, other provisions of the Magnuson-Stevens Act, and other 
applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    The Chief Counsel for Regulation for the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    This final rule contains no information collection requirements 
under the
    Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: May 5, 2021.
Samuel D. Rauch, III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for part 679 continues to read as follows:

    Authority:  16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447; Pub. L. 111-281.


[[Page 24749]]



0
2. In Sec.  679.20, revise paragraph (i) to read as follows:


Sec.  679.20   General limitations.

* * * * *
    (i) Forage fish, grenadiers, squids, and sculpins--(1) Definition. 
See Table 2c to this part.
    (2) Applicability. The provisions of this paragraph (i) apply to 
all vessels fishing for groundfish in the BSAI or GOA, and to all 
vessels processing groundfish harvested in the BSAI or GOA.
    (3) Closure to directed fishing. Directed fishing for forage fish, 
grenadiers, squids, and sculpins is prohibited at all times in the BSAI 
and GOA.
    (4) Limits on sale, barter, trade, and processing of forage fish 
and grenadiers. The sale, barter, trade, or processing of forage fish 
and grenadiers is prohibited, except as provided in paragraph (i)(5) of 
this section.
    (5) Allowable fishmeal production of forage fish and grenadiers. 
Retained catch of forage fish or grenadiers not exceeding the maximum 
retainable amount may be processed into fishmeal for sale, barter, or 
trade.
    (6) Allowable fish products for squids and sculpins. Retained catch 
of squids and sculpins not exceeding the maximum retainable amount may 
be sold to a processor or processed into any product form, including 
(but not limited to) fishmeal, bait, and whole fish/food fish, for 
sale, barter, or trade.
* * * * *
[FR Doc. 2021-09845 Filed 5-7-21; 8:45 am]
BILLING CODE 3510-22-P