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AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes this interim measure to change the management of the Pacific whiting at-sea sectors’ (i.e., the Mothership (MS) and Catcher/Processor (C/P) sectors) allocations for darkblotched rockfish and Pacific ocean perch (POP) by managing the allocations as set-asides rather than as total catch limits. This rule also proposes regulations in accordance with Amendment 21-3 to the Pacific Coast Groundfish Fishery Management Plan (PCGFMP) (see electronic access under SUPPLEMENTARY INFORMATION). The proposed action would revise regulations so that higher than anticipated harvest of darkblotched rockfish or POP that exceeds a sector’s initial distribution of those species would not require automatic closure of one or more of the Pacific whiting at-sea sectors. This action is intended to reduce the risk of those sectors not attaining their respective Pacific whiting allocations based on the incidental catch of darkblotched rockfish or POP, when allowing the sector(s) to remain open would not exceed their respective annual catch limit (ACLs). This action would not change or increase the risk of exceeding darkblotched rockfish or POP ACL, as the proposed rule would also allow NMFS to close one or both of the MS and C/P sectors via automatic action if the species-specific set-aside amounts plus the available reserve for unforeseen catch events, known colloquially as the “buffer,” are anticipated to be exceeded.

DATES:

Comments on this proposed rule must be received no later than November 27, 2017.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2017-0102 by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/​#!docketDetail;​D=​NOAA-NMFS-2017-0102, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Miako Ushio.

Instructions: 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 by NMFS. 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.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Start Printed Page 50107Microsoft Word, Excel, or Adobe PDF file formats only.

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FOR FURTHER INFORMATION CONTACT:

Miako Ushio, phone: 206-526-4644, or email: miako.ushio@noaa.gov.

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SUPPLEMENTARY INFORMATION:

Electronic Access

This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/​fisheries/​groundfish/​index.html and at the Pacific Fishery Management Council’s Web site at http://www.pcouncil.org/​groundfish/​fishery-management-plan/​groundfish-amendments-in-development/​. On September 27, 2017, NMFS published a notice of availability of Amendment 21-3 to the PCGFMP (82 FR 44984). Consistent with requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS must make a decision to approve, disapprove, or partially approve the amendment by December 26, 2017. Comments on the approvability of the amendment must be submitted to NMFS by November 26, 2017.

Background: Fishery

Bycatch of rockfish species in the Pacific whiting fishery occurs at very low rates, but sporadically and unpredictably. Regulations at 50 CFR 660.55 address the allocation of these groundfish. Darkblotched rockfish and POP are caught almost exclusively by vessels in the shorebased Individual Fishing Quota (IFQ) and at-sea Pacific whiting sectors of the groundfish fishery. NMFS declared both species overfished in 2000 and 1999, respectively, and both stocks are currently managed under rebuilding plans as a result. Populations of both species have shown dramatic improvement in recent years. Darkblotched rockfish was declared rebuilt in June 2017, and a draft 2017 stock assessment indicates that POP may be rebuilt. They are currently managed as allocations, and NMFS automatically closes a fishery sector when it has reached its allocation of either species.

In recent years, both at-sea sectors of the Pacific whiting fishery have exceeded their initial annual allocation of darkblotched rockfish (C/P sector in 2011, and the MS sector in 2014). The latter resulted in an emergency Pacific Fishery Management Council (Council) meeting in order to re-open the fishery. The risk of an inseason closure of these sectors remains high, although the rebuilding ACLs of these rockfish are far from being reached. For example: The most recent fishing mortality estimates by NMFS’ Northwest Fisheries Science Center indicate that 44 and 38 percent of the darkblotched rockfish and POP ACLs, respectively, were caught in 2015. While harvest of these species at a level below the ACL may rebuild stocks more quickly, there is a negative socioeconomic impact from preventing harvest of Pacific whiting, as intended in the PCGFMP.

Background: Current Allocations Under Amendment 21

The Council established allocations of darkblotched rockfish and POP for the at-sea sectors in Amendment 21 to the PCGFMP. When the Council considered allocation of these species, the analysis only incorporated data on catch through 2005, and took the overfished status of the species into account when they set up the allocation structure. Ten years of additional data on bycatch in the at-sea sectors are now available. Additionally, six full years of the Shorebased IFQ Program (which was implemented in 2011, 75 FR 60868) fishery information is available. This new information indicates that the stocks of both species are currently much healthier than they were at the time Amendment 21 was implemented.

The Council’s Amendment 21 allocation recommendation was based, in part, on the idea that the C/P and MS sectors could avoid early closures by moving to areas of lower rockfish encounter rates if they were approaching a bycatch allocation. However, experience has shown that this assumption was likely too simplistic. Despite the mitigating measures enacted by the C/P and MS coops, darkblotched rockfish bycatch remains particularly variable with the potential for rapid accumulation. The 2014 closure of the MS sector provides an illustration; closure occurred after six hauls caught 4.5 mt of darkblotched rockfish, nearly 75 percent of their 2014 allocation, with the bulk coming from three of the hauls. Some of the largest hauls were delivered to motherships so closely in time that feedback on the size of the catches from observers came too late for the MS coop to effectively respond. Prior to this “lightning strike” event, the sector had made 969 hauls and caught only 2.5 mt of darkblotched rockfish. After the sector was re-opened by an emergency meeting of the Council, the sector made 330 additional hauls that brought in over 14,500 mt of Pacific whiting and only 0.1 mt of additional darkblotched rockfish. The C/P sector has experienced even more rapid accumulations of darkblotched rockfish bycatch, and would have been closed late in the 2011 season if unused allocation had not been available from the MS sector, which had already completed fishing. These events indicate that the current management structure may be adversely impacting the at-sea sectors to a greater degree than was anticipated when the Council adopted the current allocation structure under Amendment 21, due to unpredictability and high volume of bycatch events.

Background: Amendment 21-3

The Council has discussed a variety of solutions to reducing the risk of closure of the Pacific whiting at-sea sectors prior to attainment of their Pacific whiting allocations, such as allowing transfer of rockfish quota between sectors, but it determined that those solutions are too complex to be analyzed and implemented in a timely manner. At its September 2016 meeting, the Council recommended the interim measure of amending the PCGFMP and implementing revised regulations, so that the amounts of darkblotched rockfish and POP allocated to the C/P and MS sectors are managed as set-asides rather than as total catch limits. The Council also recommended giving NMFS inseason authority to automatically close one or both of the C/P and MS sectors in the event the species-specific set-aside amounts plus the available reserve for unforeseen catch events, known colloquially as the “buffer,” are anticipated to be exceeded.

This action would not revise allocations between sectors, which were set by Amendment 21 to the PCGFMP, and is intended to be an interim solution to address the immediate needs of the C/P and MS sectors. Long-term solutions are being reviewed by a Council-appointed Community Advisory Board as part of the 5-year review of the trawl rationalization program. A long-term solution to address the needs of the C/P and MS sectors will focus specifically on fairly and equitably revising the allocation between the trawl sectors, and among all the groundfish fishery sectors, while leaving any applicable stock rebuilding plans unaffected.

Intent of the Action

This proposed action is intended to substantially reduce the risk of the Pacific whiting at-sea sectors not attaining their respective Pacific whiting Start Printed Page 50108allocations based on the incidental catch of darkblotched rockfish or POP, when allowing the sector(s) to remain open would not exceed ACLs for these rebuilding stocks. It would revise regulations so that higher than anticipated harvest of darkblotched rockfish or POP that exceeds the initial distribution of those species to the at-sea sectors will not require automatic closure of one or more of the at-sea sectors.

The proposed rule would also allow NMFS to close one or both of the C/P and MS sectors of the Pacific whiting fishery via automatic action when the set-aside for that sector, plus the available reserve for unforeseen catch events, is reached or is expected to be reached for either darkblotched rockfish or POP. Because of near real-time monitoring by the C/P and MS Coop Programs, and the ability of those programs to respond quickly to changing fishery conditions, closures would occur before allocations to other fisheries or the ACLs are reached, thus limiting the potential effects and precluding potential negative biological and socioeconomic impacts of the proposed action.

Classification

Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, NMFS has preliminarily determined that this proposed rule is consistent with the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. In making its final determination, NMFS will take into account the complete record, including the data, views, and comments received during the comment period.

NMFS has determined that the proposed action would not have a significant effect, individually or cumulatively, on the human environment and does not involve any extraordinary circumstances listed in The National Oceanic and Atmospheric Administration (NOAA) Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities (NOAA Administrative Order (NAO) 216-6A and the Companion Manual for NAO 216-6A). For purposes of review under the National Environmental Protection Act, the proposed action is not part of any larger action, and can be reviewed independently. Furthermore, NMFS determined that the proposed action may appropriately be categorically excluded from the requirement to prepare either an environmental assessment or environmental impact statement, in accordance with the Companion Manual for NAO 216-6A.

Under the Regulatory Flexibility Act (RFA), an agency does not need to conduct an Initial Regulatory Flexibility Act Analysis or Final Regulatory Flexibility Act Analysis if a certification can be made that the proposed rule, if adopted, will not have a significant adverse economic impact on a substantial number of small entities, as defined below (5 U.S.C. 601). The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as described in this document.

The Small Business Administration has established the following size criteria for entities classified under North American Industry Classification System (NAICS). Standards are expressed either in number of employees or annual receipts in millions of dollars. The number of employees or annual receipts indicates the maximum allowed for a concern and its affiliates to be considered small (13 CFR 121.201). A fish and seafood merchant wholesaler primarily engaged in servicing the fishing industry is a small business if it employs 100 or fewer persons, on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide (NAICS 424460). A business primarily engaged in seafood product preparation and packaging is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide (NAICS 311710). For purposes of this action, NMFS West Coast Region is applying the seafood processor standard to C/Ps and MS processor ships, which earn the majority of their revenue from selling processed seafood product. Under SBA size standards, a nonprofit organization is determined to be a small entity if (1) it is not dominant in its field of operation; and (2) for environmental, conservation, or professional organizations if combined annual receipts are $15 million or less (NAICS 813312, 813920), and for other organizations if combined annual receipts are $7.5 million or less (NAICS 813319, 813410, 813910, 813930, 813940, 813990). For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing; a business primarily engaged in commercial fishing (NAICS 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide (50 CFR 200.2).

For the purposes of the RFA, small governmental jurisdictions such as governments of cities, counties, towns, townships, villages, school districts, or special districts are considered small jurisdictions if their populations are less than 50,000 (5 U.S.C. 601).

A description and estimate of the number of small entities to which the rule applies and economic impacts on small entities, by entity size and industry.

Four companies own seven permitted mothership vessels. Each year, three to six MS vessels participate in the Pacific whiting fishery. The average number of crew on each MS vessel is 104 individuals. When considering operations in Alaska, none of the MSs would be considered small businesses.

The 17 catcher vessels that participated in the mothership coop spend about 30 percent of their total annual fishing days processing in the Pacific whiting fishery. The majority of their time is spent in the Alaska Pollock fishery. Almost 90 percent of the overall round weight taken by these vessels is taken in Alaska, and approximately 11 percent is taken in the Pacific whiting fishery.

Three companies own nine permitted C/P fleet vessels. C/Ps are large vessels with an average crew of 131 individuals.

Vessels in the C/P fleet spend about 20 percent of their total days fishing in the Pacific whiting fishery and 80 percent in the Alaska Pollock fishery. About 90 percent of the total round weigh taken by the C/Ps is taken in Alaska, and approximately 10 percent is taken in the Pacific whiting fishery. When considering operations from Alaska, none of the C/Ps would be considered small businesses.

An explanation of the criteria used to evaluate whether the rule would impose “significant impacts” on small entities.

The proposed action is primarily administrative in nature, as it does not change the ACLs for either the Pacific whiting at-sea sectors or the allocations levels of darkblotched rockfish and POP. This action is not expected to significantly reduce profit for a substantial number of small entities, because there are no associated compliance requirements or costs.

An explanation of the criteria used to evaluate whether the rule would impose Start Printed Page 50109impacts on“a substantial number” of small entities.

Two MS permit/processor owning companies self-identified on the most recent (2016) permit renewal as small businesses, and the other two identified as not being small businesses. All three companies owning C/P permits and vessels responded as not being small entities on the most recent (2016) permit renewal form. Of the 35 MS catcher vessel permits, 34 were registered to vessels with the MS catcher vessel endorsement. 27 MS catcher vessel endorsed permits were owned by 22 companies that self-identified as small entities, and the other 8 were owned by 5 companies that self-identified as not being small entities.

A description of, and an explanation of the basis for, assumptions used.

Data collected from the trawl rationalization program Economic Data Collection was used for this analysis.

No Federal rules have been identified that duplicate, overlap, or conflict with this action. There are no reporting, recordkeeping or other compliance requirements in the proposed rule.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the PCGFMP. Consistent with the Magnuson-Stevens Act (16 U.S.C. 1852(b)(5)), one of the voting members of the Pacific Council is a representative of an Indian tribe with Federally recognized fishing rights from the area of the Council’s jurisdiction.

This proposed rule would not alter the effects on species listed under the Endangered Species Act, or on marine mammals, over what has already been considered for the regulations governing the fishery.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

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List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indian Fisheries

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For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

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PART 660–FISHERIES OFF WEST COAST STATES

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1. The authority citation for part 660 continues to read as follows:

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Authority:
16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

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2. In § 660.55, (c)(1)(i) introductory text, and (c)(1)(i)(A) and (B) are revised to read as follows:

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3. In § 660.60, add paragraph (d)(1)(vii) to read as follows:

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4. In § 660.150, revise paragraphs (c)(1)(i) and (ii) to read as follows:

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5. In § 660.160, revise paragraphs (c)(1)(i) and (ii) to read as follows:

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5. In § 660 Subpart C, revise Tables 2b and 2d to read as follows:

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