Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Salmon Bycatch Minimization, 10857-10871 [2021-03204]
Download as PDF
<![CDATA[
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[DOCKET No. FRA–2018–0096, Notice No.
3]
RIN 2130–AC72
Authority: 49 U.S.C. 20103, 20107, 20152,
20160, 21301, 21304, 21311; Sec. 11401, Div.
A, Pub. L. 114–94, 129 Stat. 1679 (49 U.S.C.
22501 note); and 49 CFR 1.89.
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Correcting amendment.
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
2. In § 234.11, revise paragraph (d) to
read as follows:
■
On December 14, 2020, FRA
published a final rule amending FRA’s
grade crossing safety standards. In
preparing the final rule for publication,
an error was made that resulted in a
cross-reference to the wrong paragraph.
FRA is correcting that inadvertent error.
DATES: Effective on February 23, 2021.
FOR FURTHER INFORMATION CONTACT:
Kathryn Gresham, Attorney Adviser,
U.S. Department of Transportation,
Federal Railroad Administration, Office
of the Chief Counsel (email:
kathryn.gresham@dot.gov, telephone:
202–493–6063).
SUPPLEMENTARY INFORMATION: In
§ 234.11 of FRA’s December 14, 2020,
final rule requiring States and the
District of Columbia to develop and
implement highway-rail grade crossing
action plans, paragraph (d) erroneously
referenced paragraph (d)(2) for a list of
10 States required to submit their
updated highway-rail grade crossing
action plans and implementation
reports electronically through FRA’s
website in Portable Document Format
(PDF). 85 FR 80648, 80660. The
referenced list is actually contained in
paragraph (c)(3) of § 234.11; there is no
paragraph (d)(2) in § 234.11. Therefore,
FRA is issuing this correction amending
paragraph § 234.11(d) to refer to the
actual regulatory provision
(§ 234.11(c)(3)) that contains the list of
10 States required to submit their
updated highway-rail grade crossing
action plans and implementation
reports to FRA. FRA is proceeding
directly to a final rule as it finds public
notice and comment to be unnecessary
per the ‘‘good cause’’ exemption in 5
U.S.C. 553(b)(3)(B) for this clearly
inadvertent error.
Highway safety, Penalties, Railroad
safety, Reporting and recordkeeping
requirements, State and local
governments.
PART 234—GRADE CROSSING
SAFETY
1. The authority citation for part 234
continues to read as follows:
AGENCY:
List of Subjects in 49 CFR Part 234
For the reasons discussed in the
preamble, FRA amends part 234 of
chapter II, subtitle B of title 49, Code of
Federal Regulations, with the following
correcting amendment:
■
State Highway-Rail Grade Crossing
Action Plans; Correction
SUMMARY:
The Final Rule
§ 234.11 State highway-rail grade crossing
action plans.
*
*
*
*
*
(d) Electronic submission of updated
Action Plan and implementation report.
Each of the 10 States listed in paragraph
(c)(3) of this section shall submit its
updated highway-rail grade crossing
action plan and implementation report
electronically through FRA’s website in
PDF form.
*
*
*
*
*
Issued in Washington, DC.
Brett A. Jortland,
Acting Chief Counsel.
[FR Doc. 2021–03229 Filed 2–22–21; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 210205–0012]
RIN 0648–BJ50
Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery;
Salmon Bycatch Minimization
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Final rule.
AGENCY:
This rule implements salmon
bycatch minimization measures to
minimize incidental take of Endangered
Species Act-listed salmon by vessels in
the Pacific Coast groundfish fishery. The
rule establishes additional management
tools to minimize incidental Chinook
and coho salmon bycatch to keep
fishery sectors within guidelines,
SUMMARY:
PO 00000
Frm 00155
Fmt 4700
Sfmt 4700
10857
establishes rules to allow industry to
access the Chinook salmon bycatch
reserve, and creates Chinook salmon
bycatch closure thresholds for the trawl
fishery. This rule fulfills the terms and
conditions of a 2017 National Marine
Fisheries Service Biological Opinion.
This rule is intended to promote the
goals and objectives of the MagnusonStevens Fishery Conservation and
Management Act, the Pacific Coast
Groundfish Fishery Management Plan,
and other applicable laws, including the
Endangered Species Act.
DATES: This final rule is effective March
25, 2021.
ADDRESSES: This rule is accessible via
the Office of the Federal Register
website at https://
www.federalregister.gov/. Background
information and documents, including a
Biological Opinion and a Regulatory
Impact Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA) (Analysis),
which addresses the statutory
requirements of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act), Executive
Order 12866, and the Regulatory
Flexibility Act (RFA), are available at
the NMFS West Coast Region website at
https://www.fisheries.noaa.gov/region/
west-coast and at the Pacific Fishery
Management Council’s (Council)
website at https://www.pcouncil.org.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this final rule
may be submitted to Barry A. Thom,
Regional Administrator, West Coast
Region, NMFS, 7600 Sand Point Way
NE, Seattle, WA 98115–0070. Attn:
Brian Hooper, and to www.reginfo.gov/
public/do/PRAMain.
FOR FURTHER INFORMATION CONTACT:
Brian Hooper, phone: (206) 526–6117,
or email: brian.hooper@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
The purpose of this final rule is to
minimize interactions between
Endangered Species Act (ESA)-listed
salmon species and Pacific Coast
groundfish fishing gear. On the West
Coast, vessels fishing under the Pacific
Coast Groundfish Fishery Management
Plan (FMP) use gear types (e.g.
midwater and bottom trawl, fixed gear,
and hook-and-line) that interact with
listed Evolutionary Significant Units
(ESUs) of coho and Chinook salmon.
The seasonality and geographic extent,
including fishing depth and north/south
distribution of the different target
strategies and gear types, result in
E:\FR\FM\23FER1.SGM
23FER1
10858
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
different effects on different ESUs of
these salmonids.
On December 11, 2017, NMFS issued
a Biological Opinion on the impact of
the NMFS authorization of the
groundfish fishery on ESA-listed
salmonids (see ADDRESSES for electronic
access information). The Incidental
Take Statement (ITS) in the Biological
Opinion sets forth terms and conditions.
Compliance with those terms and
conditions provides an exemption to the
prohibition on take of listed species in
Section 9 of the ESA. The components
of the Biological Opinion are
summarized in the proposed rule for
2019–20 Pacific Coast groundfish
harvest specifications and management
measures (83 FR 47416; September 19,
2018). NMFS and the Council
implemented a number of ITS terms and
conditions in the final rule for 2019–20
Pacific Coast groundfish harvest
specifications and management
measures (83 FR 63970; December 12,
2018).
To address the remaining terms and
conditions (2.b and 3.a), the Council
developed new incidental salmon
bycatch minimization tools to allow for
timely inseason management of salmon
bycatch (term and condition 2.b). The
Council also developed regulations
regarding the Chinook salmon bycatch
reserve and its use (term and condition
3.a).
The Council evaluated the Biological
Opinion and analyzed an action to
amend the regulations implementing the
FMP to address ESA-listed salmon
bycatch in the fishery at its November
2018, April 2019, September 2019, and
November 2019 meetings. The Council
recommended a preferred alternative at
its September 2019 meeting and took
final action in November 2019. The
Council deemed the proposed
regulations consistent with and
necessary to implement this action in a
June 2, 2020, letter from Council
Chairman Phil Anderson to NMFS
Regional Administrator Barry Thom.
NMFS amends the regulations for the
Pacific Coast groundfish fishery at 50
CFR part 660 through this final rule to
incorporate the Council’s
recommendation and implement the
terms and conditions set forth in the
2017 NMFS Biological Opinion.
Additional discussion of the
background and rationale for the
Council’s development of changes to the
regulations is included in the proposed
rule for this action (85 FR 66519;
October 20, 2020) and is not repeated
here. Detailed information, including
the supporting documentation the
Council considered while developing
these recommendations, is available at
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
the Council’s website, https://
www.pcouncil.org.
Description of Existing Salmon Bycatch
Management in the Pacific Coast
Groundfish Fishery
For purpose of analysis in the
Biological Opinion, NMFS divided the
groundfish fishery into two groups or
‘‘sectors’’ for the purposes of estimating
and analyzing ESA-listed salmon
bycatch. This rule will refer to these
groups as the whiting sector and nonwhiting sector. The whiting sector
includes the Pacific Coast treaty Indian
vessels that target whiting, as well as
non-tribal vessels in the mothership
(MS) Coop Program, Catcher/processor
(C/P) Coop Program, and Pacific whiting
Shorebased individual fishing quota
(IFQ) fishery that target whiting. In this
rule, the MS Coop Program, the C/P
Coop Program and the Pacific whiting
IFQ fishery are referred to as
‘‘components’’ of the whiting sector.
The non-whiting sector includes the
Pacific Coast treaty Indian vessels that
target Pacific coast groundfish species
other than whiting, as well as non-tribal
vessels in the Shoreside trawl, fixed
gear, and recreational fisheries that are
not accounted for in pre-season salmon
modeling. The recreational fisheries not
accounted for in pre-season salmon
modeling are those occurring outside of
the open salmon seasons and the
Oregon longleader fishery.
NMFS currently manages Chinook
salmon bycatch to guidelines of 11,000
fish for the whiting sector, and 5,500
fish for the non-whiting sector. Fishery
sectors may access a 3,500 Chinook
salmon bycatch ‘‘reserve’’ upon
reaching their Chinook bycatch
guideline. NMFS automatically closes
all groundfish fisheries once the
guidelines plus the reserve are reached
(i.e., a total of 20,000 Chinook salmon
are caught as bycatch). For accounting
purposes, Chinook salmon bycatch
accrues to either the whiting sector or
non-whiting sector. NMFS monitors
Chinook salmon bycatch inseason and
will (1) close the whiting sector if that
sector catches its guideline limit and the
full reserve amount, (2) close the nonwhiting sector if that sector catches its
guideline limit and the full reserve
amount, or (3) close either the whiting
or non-whiting sector if either sector
reaches its guideline limit when the
other sector has already taken the
reserve amount (83 FR 63970; December
12, 2018).
NMFS previously established two
tools to manage Chinook and coho
salmon bycatch in the groundfish
fishery through prior rulemakings.
These two tools are a Bycatch Reduction
PO 00000
Frm 00156
Fmt 4700
Sfmt 4700
Area (BRA) for midwater trawl vessels
at the 200-fathom (fm) (366-meter (m))
depth contour (83 FR 63970, December
12, 2018), and Block Area Closures
(BACs) for bottom trawl vessels from
shore to the 250-fm (457-m) depth
contour (84 FR 63966, November 19,
2019) off Oregon and California. The
Council may recommend NMFS
implement BRAs and BACs to minimize
salmon bycatch through routine
management measures, as described in
the FMP and regulation at 50 CFR
660.60(c). Additional discussion of
existing salmon bycatch management in
the groundfish fishery is included in the
proposed rule (85 FR 66519; October 20,
2020) and is not repeated here.
Additional Management Tools To
Minimize ESA-Listed Salmon Bycatch
This final rule implements additional
management tools beyond BRAs and
existing BACs, making these tools
available to minimize incidental
Chinook and coho salmon bycatch to
keep fishery sectors within guidelines.
These additional tools include: (1) BACs
for midwater trawl fisheries; (2) an
extension of BACs seaward of the 250fm (457-m) depth contour for bottom
trawl fisheries; and (3) a selective
flatfish trawl (SFFT) gear requirement
for bottom trawl vessels. These
additional management tools apply only
to non-tribal fisheries. NMFS expects
the tribal fishery managers may
implement area management measures
to minimize salmon bycatch, as
necessary.
When deciding whether to
recommend BACs or SFFT gear
requirements for NMFS to implement,
consistent with the FMP, the Council
will consider environmental impacts,
including economic impacts, and public
comment via the Council process.
Depending on the circumstances, NMFS
may implement BACs or SFFT gear
requirements for a defined period of
time, for example, a few months or the
remainder of the fishing year, or
maintain the closure for an indefinite
period of time, for example, until
reopened by a subsequent action. NMFS
may implement one or more BACs or
BACs with SFFT gear requirements, and
the size of the BACs or BACs with SFFT
gear requirements can vary. A Federal
Register document will announce the
geographic boundaries (described with
coordinates in codified regulations) of
one or more BACs or BACs with SFFT
gear requirements, the effective dates,
applicable gear/fishery restrictions, as
well as the purpose and rationale.
NMFS will also disseminate this
information on BACs or BACs with
SFFT gear requirements through public
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
Extension of Block Area Closures for
Bottom Trawl Fisheries
notices and posting on the West Coast
Region website (see ADDRESSES for
electronic access information).
Block Area Closures for Midwater Trawl
Fisheries
This final rule makes BACs available
as a routine management measure to
minimize salmon bycatch in the limited
entry midwater trawl fisheries in the
whiting and non-whiting sectors and
prevent bycatch from exceeding the
guidelines. BACs are size variable
spatial closures bounded by latitude
lines, defined at 50 CFR 660.11, and
depth contour approximations defined
at 50 CFR 660.71 through 660.74 ((10 fm
(18-m) through 250 fm (457-m)), and
§ 660.76 (700 fm (1,280-m)).
Amendment 28 to the FMP (84 FR
63966; November 19, 2019) established
BACs for bottom trawl fisheries. This
final rule will prohibit midwater trawl
fishing within the BAC boundaries.
BACs could be implemented or
modified in the Exclusive Economic
Zone (EEZ) off Oregon and California for
vessels using midwater trawl gear. BACs
may be implemented in the EEZ off
Washington shoreward of the boundary
line approximating the 250-fm (457-m)
depth contour for vessels using
midwater trawl gear. The Council
decided to not include extending the
available BAC boundary for vessels
fishing with midwater trawl gear
beyond 250-fm (457-m) off Washington
as part of its recommendation due to the
limited operation of midwater trawl
vessels in that area.
The BAC tool will allow the Council
to recommend and NMFS to implement
size variable area closures as a routine
management measure to address
specific areas of high salmon bycatch
rather than large fixed closure areas
(e.g., BRA). BACs will allow the
midwater trawl fishery to remain open
in areas outside of the BACs.
This final rule does not implement
specific individual BACs. BACs cannot
be used to close an area to any type of
fishing other than groundfish bottom or
midwater trawling. This rule allows
NMFS to close or reopen BACs
preseason (e.g., before the start of the
fishing year or before the May 15 start
of the primary season for Pacific whiting
fishery) or inseason. The approach is
consistent with existing ‘‘routine
inseason’’ frameworks already in the
FMP and regulations. If good cause
exists under the Administrative
Procedure Act to waive notice and
comment, a single Federal Register
document will announce routine
inseason BACs approved by NMFS.
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
This final rule allows NMFS to take
routine inseason action to implement
BACs seaward of the boundary line
approximating the 250-fm (457-m)
depth contour to the existing boundary
line approximating the 700-fm (1,280-m)
Essential Fish Habitat Conservation
Area closure for bottom trawl fisheries.
The boundary line approximating the
700-fm (1,280-m) depth contour is
described at 50 CFR 660.76. This
extension of BACs only applies south of
46°16′00″ N latitude (in the EEZ off
Oregon and California). This final rule
allows NMFS to implement and modify
BACs, as a routine management
measure, in open areas beyond the 250fm (457-m) boundary in order to
minimize incidental salmon bycatch.
While salmon bycatch rates are
generally low in depths greater than
250-fm (457-m) for trawl fisheries
(Section 2.15 of the Analysis—see
ADDRESSES), salmon distribution is
known to extend into those depths.
Therefore, the Council recommended,
and NMFS is implementing, this
extension so as to not constrain
management of salmon bycatch in the
bottom trawl fishery to the boundary
line approximating the 250-fm (457-m)
depth contour as the seaward boundary
for a BAC. This final rule does not
implement individual BACs for bottom
trawl fisheries.
Selective Flatfish Trawl Requirement for
Bottom Trawl Fisheries
The use of SFFT gear is expected to
reduce bycatch of Chinook salmon (85
FR 66519; October 20, 2020). This final
rule makes an SFFT gear requirement
available as a routine management
measure to address ESA-listed salmon
bycatch in the groundfish bottom trawl
fisheries. The requirement to fish with
SFFT gear could be used in conjunction
with a BAC. In other words, if the
Council were to recommend and NMFS
were to implement a BAC for bottom
trawl, it could allow bottom trawl
vessels to continue fishing in the BAC
if vessels used SFFT gear. The Council
recommended, and NMFS is
implementing, this action because it
provides flexibility for those vessels
with SFFT gear.
This final rule does not implement
individual SFFT gear requirements. The
Council could recommend SFFT gear
requirements in the future. This rule
allows NMFS to implement SFFT
requirements preseason or inseason. If
consistent with the FMP, MagnusonStevens Act, and other applicable law,
NMFS may approve and implement a
PO 00000
Frm 00157
Fmt 4700
Sfmt 4700
10859
Council recommended SFFT gear
requirement through a routine
management measure, as described in
the FMP and regulation at 50 CFR
660.60(c).
This final rule makes changes to the
declaration report to allow NMFS Office
of Law Enforcement (OLE) to
sufficiently monitor and enforce SFFT
gear requirements. In the list of
potential gear type or sector/monitoring
type declarations found at 50 CFR
660.13(d)(4)(iv)(A), NFMS added a
declaration for ‘‘Limited entry selective
flatfish trawl, shorebased IFQ’’ and
modified the existing ‘‘Limited entry
bottom trawl, shorebased IFQ, not
including demersal trawl’’ declaration
to clarify that selective flatfish trawl
gear is not included (i.e., ‘‘Limited entry
bottom trawl, shorebased IFQ, not
including demersal trawl or selective
flatfish trawl’’).
Rules for Access to the Chinook Salmon
Reserve
This final rule establishes the rules or
circumstances in which the whiting and
non-whiting sectors can access the
Chinook salmon bycatch reserve. As
described in the Biological Opinion,
access to the reserve for additional
Chinook salmon bycatch above the
sector’s guideline is not guaranteed. The
Council recommended that a sector may
only access the reserve if NMFS has
implemented a management measure to
minimize Chinook salmon bycatch in
that sector prior to it reaching its
Chinook salmon bycatch guideline. The
Council recommended, and NMFS is
implementing, rules for accessing the
reserve that hold the whiting and nonwhiting sectors accountable for
minimizing bycatch.
The Council recommended, and
NMFS is implementing, that the nonwhiting sector may only access the
reserve if NMFS has implemented a
routine management measure (i.e. BRA,
BAC, or a SFFT gear requirement) to
minimize Chinook salmon bycatch in
the non-whiting sector prior to it
reaching its Chinook salmon bycatch
guideline. This requirement may be
satisfied where NMFS has implemented
a BAC for bottom trawl or midwater
trawl fisheries, or an SFFT gear
requirement for bottom trawl fisheries.
In contrast to the non-whiting sector,
the Council recommended, and NMFS
is implementing, that each component
of the whiting sector (i.e. the MS
Cooperative Program, C/P Cooperative
Program, and the Pacific whiting
Shorebased IFQ fishery) may access the
reserve only if NMFS has implemented
a management measure to minimize
Chinook salmon bycatch for that
E:\FR\FM\23FER1.SGM
23FER1
10860
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
component. This requirement may be
satisfied through the implementation of
a BRA, BAC, or Salmon Mitigation Plan
(SMP) for the applicable component.
Those vessels with an approved SMP
will have access to the reserve without
further action by NMFS. The Council
recommended, and NMFS is
implementing, that vessels not party to
an SMP may access the reserve only if
NMFS has implemented a routine
management measure (e.g., BRA or
BAC) to minimize Chinook salmon
bycatch for those vessels.
As part of the rules for access to the
reserve, the Council recommended, and
NMFS is implementing, automatic
fishery closure thresholds. The Council
may recommend a routine management
measure (e.g., BRA, BAC, or SFFT gear
requirement) to minimize Chinook
salmon bycatch in the groundfish
fishery. If NMFS has not implemented
a routine management measure to
minimize Chinook salmon bycatch in
the non-whiting sector, the non-whiting
sector will close once the sector exceeds
its Chinook salmon bycatch guideline of
5,500 Chinook salmon. NMFS will
automatically close the MS Coop
Program, C/P Coop Program, and the
Pacific whiting IFQ fishery if NMFS has
not implemented a routine management
measure to minimize Chinook salmon
bycatch (i.e. BRAs or BACs) for that
specific component of the whiting
sector prior to the whiting sector
exceeding its Chinook salmon bycatch
guideline of 11,000 Chinook salmon.
Those vessels with an approved SMP
will be exempt from the 11,000 Chinook
salmon bycatch guideline closure
threshold condition that requires NMFS
to close a specific component of the
whiting sector if NMFS has not
implemented a routine management
measure to minimize Chinook salmon
bycatch. Therefore, these vessels will
have access to the reserve without
further action by NMFS. If the whiting
sector has caught 11,000 Chinook
salmon, NMFS will close the entire
whiting sector, including those with an
approved SMP, if the non-whiting sector
has caught its 5,500 Chinook salmon
bycatch guideline and 3,500 Chinook
salmon from the bycatch reserve. Table
1 summarizes the automatic fishery
closure thresholds that NMFS is
implementing as part of the reserve
access rules.
TABLE 1—SUMMARY OF FISHERY CLOSURE THRESHOLDS FOR RESERVE ACCESS RULES
Close:
If Chinook salmon catch exceeds:
And:
Whiting sector .........
11,000 fish in the whiting sector ...........
Non-whiting sector ..
5,500 fish in the non-whiting sector ......
(1) NMFS has not implemented a routine management measure to minimize
Chinook salmon bycatch OR (2) The non-whiting sector has caught its 5,500
Chinook salmon bycatch guideline and 3,500 Chinook salmon from the bycatch reserve.
(1) NMFS has not implemented a routine management measure to minimize
Chinook salmon bycatch OR (2) The whiting sector has caught its 11,000
Chinook salmon bycatch guideline and 3,500 Chinook salmon from the bycatch reserve.
Salmon Mitigation Plan Parties
Salmon Mitigation Plans for Pacific
Whiting Sector
This final rule allows a Pacific
whiting sector cooperative or group of
vessels to develop a SMP for NMFS
approval. The SMP is a voluntary
agreement by a cooperative or group of
vessels in the Pacific whiting fishery MS
Coop Program, C/P Coop Program, or
Pacific whiting Shorebased IFQ fishery
to manage Chinook salmon bycatch.
NMFS expects the SMP to promote
reductions in Chinook salmon bycatch
relative to what would have occurred in
the absence of an SMP because the SMP
will require bycatch minimization
measures for all vessels party to that
SMP. Therefore, NMFS approval of an
SMP will give those vessels party to the
SMP access to the Chinook salmon
bycatch reserve. Additionally, vessels
that are party to an approved SMP will
have access to the reserve regardless of
NMFS implementing other inseason
measures to minimize bycatch, such as
BACs. Vessels that are party to an
approved SMP may fish into the reserve
when the non-whiting sector has not
used the full reserve and NMFS has
closed the whiting sector on the basis
that it has reached 11,000 Chinook
bycatch.
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
Participants in the Pacific whiting
Shorebased IFQ fishery may form
groups around common goals such as
managing bycatch. MS and C/P vessels
receive permits from NMFS to operate
as cooperatives. While it does not
receive permits from NMFS, the
Shorebased Whiting Cooperative also
operates around common goals such as
bycatch management. Under this final
rule, groups of vessels, or cooperatives,
may create and submit SMPs to NMFS
for approval. Individual vessels are not
eligible to submit an SMP for approval.
After NMFS approves an SMP, any
changes in the membership of vessels
party to the SMP, including a vessel
leaving an SMP or adding a vessel to an
SMP, must be submitted to NMFS for
approval though an SMP amendment.
In recommending the SMP measures,
the Council provided, and NMFS is
implementing, an additional way to
allow groups of Pacific whiting vessels
to access the reserve. The Council
limited SMP submissions to
cooperatives or other groups of vessels
because of concerns regarding the
enforceability of plans from individual
whiting vessels. The Council noted that
other groups would have the potential
to employ a robust management system
PO 00000
Frm 00158
Fmt 4700
Sfmt 4700
similar to that employed by the existing
whiting cooperatives. The Council did
not recommend a minimum number of
vessels in an SMP. In order to improve
the clarity of the regulations and ensure
the robust management and
accountability system envisioned by the
Council, NMFS is implementing a three
vessel minimum for an approved SMP.
Salmon Mitigation Plan Required
Contents
The SMP must detail how those
vessels party to the SMP will avoid and
minimize Chinook salmon bycatch,
including the tools they will employ.
The SMP must contain the names and
signatures of the owner or
representative for each vessel that is
party to the SMP. The SMP must
include the vessel name and United
States Coast Guard (USCG) vessel
registration number (as given on USCG
Form 1270) or state registration number,
if no USCG documentation, of each
vessel that is party to the SMP. The SMP
must designate a representative to serve
as the SMP point of contact with NMFS
and the Council, and to submit the SMP
proposal, any SMP amendments, and
post-season report. The SMP must also
contain a compliance agreement in
which all parties to the SMP agree to
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
voluntarily comply with all the
provisions of the SMP.
Salmon Mitigation Plan Review and
Approval
Consistent with the dates for MS and
C/P cooperative permit and agreement
submission, applicants must submit
proposed SMPs to NMFS between
February 1 and March 31. An SMP will
expire on December 31 of the year in
which NMFS approved it. Given the
timing of this rulemaking, NMFS may
offer flexibility by extending the SMP
proposal deadline for 2021. NMFS will
announce any flexibility in the 2021
SMP submission deadline via public
notice.
NMFS will approve a proposed SMP
if the proposal contains the required
contents and is reasonably expected to
reduce Chinook salmon bycatch. NMFS
will disapprove a proposed SMP if it
does not contain the required contents,
or is not reasonably expected to reduce
Chinook salmon bycatch. If NMFS
makes an initial administrative
determination (IAD) to disapprove the
proposed SMP, the applicant may
appeal. Any appeal under the SMP
program will be processed by the NOAA
Fisheries National Appeals Office.
After the SMP is approved, the
designated SMP representative must
submit any changes to the SMP,
including any changes in which vessels
are party to the SMP, as an amendment
to the SMP for approval by NMFS. An
amendment to an approved SMP may be
submitted to NMFS at any time during
the year in which the SMP is valid.
NMFS will review the amendment to
ensure it contains the required SMP
contents. An amendment to an
approved SMP will be effective upon
written notification of approval by
NMFS to the designated SMP
representative. If NMFS makes an IAD
to disapprove the proposed SMP
amendment, the applicant may appeal.
Any appeal under the SMP program will
be processed by the NOAA Fisheries
National Appeals Office.
Inseason SMP Monitoring and
Evaluation
Those vessels party to the SMP will
commit to voluntarily comply with the
provisions of the SMP. The Council will
evaluate Chinook salmon bycatch levels
and adherence to SMP provisions by
those vessels party to the SMP, as
needed, during the inseason review
process at Council meetings. In
recommending and implementing a
routine management measure to
minimize Chinook salmon bycatch, the
Council and NMFS will specifically
state whether the measure will apply to
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
vessels party to an approved SMP. The
Council may choose to exempt vessels
party to an approved SMP from any
additional salmon bycatch minimization
measure recommendation. If the SMP
measures are not sufficient in
minimizing salmon bycatch, as
determined by the Council during
inseason review at regular Council
meetings, the Council could recommend
that NMFS implement additional
salmon bycatch minimization measures
(i.e., BRAs or BACs) that apply to those
vessels party to an approved SMP even
if those vessels had access to the reserve
through the SMP. For example, NMFS
may implement a BAC for all whiting
sector vessels, including those with an
approved SMP, if the whiting sector
were approaching the Chinook salmon
bycatch guideline and the Council had
determined SMP measures were not
sufficiently minimizing salmon bycatch.
By using the existing declarations and
procedures, as well as a list of vessels
party to an approved SMP, NMFS OLE
anticipates it can sufficiently monitor
for unauthorized fishing vessels within
the boundaries of a BAC that exempts
vessels with an approved SMP.
Post-Season Reporting
The Council also recommended, and
NMFS is implementing, an SMP postseason report as a necessary component
of the SMP measures. The post-season
report will allow NMFS and the Council
to monitor and assess Chinook salmon
bycatch minimization efforts by vessels
party to the SMP. This post-season
report, and specifically information on
the effectiveness of the bycatch
avoidance measures, will also help
NMFS comply with term and condition
6.a.iii of the Biological Opinion. This
term and condition requires that NMFS
produce an annual report summarizing
bycatch reduction measures used and
their effectiveness.
The designated SMP representative
will provide an annual post-season
report to the Council and NMFS no later
than March 31 of the year following the
year in which the SMP was valid. The
report will describe the group’s use of
Chinook salmon bycatch avoidance
measures and an evaluation of the
effectiveness of those measures. The
report will also describe any
amendments to the terms of the SMP
that NMFS approved during that fishing
year and the reasons that the group
amended the SMP.
Pacific whiting cooperatives currently
produce an annual cooperative report
documenting the cooperative’s catch,
bycatch data, and any other significant
activities undertaken by the cooperative
during the year. For efficiency, the SMP
PO 00000
Frm 00159
Fmt 4700
Sfmt 4700
10861
post-season report could be combined
with this annual cooperative report.
Trawl Fishery Closures in Response to
Chinook Salmon Bycatch
This final rule establishes automatic
actions that will close all trawl fisheries
if Chinook salmon bycatch exceeds
19,500 fish in the whiting and nonwhiting sectors, and will close nonwhiting trawl fisheries if Chinook
salmon bycatch exceeds 8,500 fish in
the non-whiting sector. The closures
ensure that 500 Chinook salmon are
available for bycatch in fixed gear and
select recreational fisheries, so those
fisheries can continue to operate in
years of high Chinook salmon bycatch
in the trawl fishery. For catch
accounting purposes, the Chinook
salmon bycatch from Pacific Coast treaty
Indian fisheries will count towards the
applicable whiting or non-whiting
sector bycatch guideline. However,
Pacific Coast treaty Indian fisheries will
not close until the existing 20,000
Chinook salmon total fishery limit is
reached.
This final rule does not change any of
the existing closure thresholds
established in the 2019–2020 Pacific
Coast groundfish harvest specifications
and management measures (83 FR
63970; December 12, 2018). The closure
thresholds (bycatch guideline plus
reserve) for the whiting and non-whiting
sectors will remain at 14,500 Chinook
salmon for the whiting sector and 9,000
Chinook salmon for the non-whiting
sector, and a total closure of all
groundfish fisheries at 20,000 Chinook
salmon. The Council noted the existing
fishery closure thresholds and inseason
processes would be sufficient to manage
to the Chinook salmon bycatch
guidelines. However, the Council also
recognized the importance of protecting
fixed-gear and recreational fisheries
from potential closure in years of high
non-whiting trawl Chinook salmon
bycatch. Therefore, the Council
recommended, and NMFS is
implementing, closure thresholds for
trawl fisheries. Table 2 summarizes the
closure thresholds for trawl fisheries
implemented as a result of this final
rule.
TABLE 2—SUMMARY OF FISHERY CLOSURES TO IMPLEMENT TRAWL FISHERY THRESHOLDS
Close:
If Chinook salmon catch
exceeds:
Non-whiting
trawl fisheries.
8,500 fish in the non-whiting
sector.
E:\FR\FM\23FER1.SGM
23FER1
10862
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
TABLE 2—SUMMARY OF FISHERY CLO- salmon bycatch. The closures described Coop Program and C/P Coop Program)
SURES TO IMPLEMENT TRAWL FISH- in the table do not apply to Pacific Coast when Chinook salmon bycatch exceeds
treaty Indian fisheries except for the
11,000 Chinook salmon if NMFS has not
ERY THRESHOLDS—Continued
Close:
If Chinook salmon catch
exceeds:
All trawl fisheries.
19,500 fish in the whiting
and non-whiting sectors.
Summary of Groundfish Fishery
Closures in Response to Chinook
Salmon Bycatch
Table 3 summarizes the groundfish
fishery closures in response to Chinook
existing threshold closing all groundfish
fisheries, including Pacific Coast treaty
Indian fisheries, if Chinook salmon
bycatch in the groundfish fishery
exceeds 20,000 fish. However, for catch
accounting purposes, the Chinook
salmon bycatch from Pacific Coast treaty
Indian fisheries will count towards the
applicable whiting or non-whiting
sector bycatch guideline. NMFS will
close each component of the whiting
sector (Pacific whiting IFQ fishery, MS
implemented a routine management
measure (i.e., BRA or BAC)) to minimize
Chinook salmon bycatch for that
individual component of the whiting
sector. The whiting sector closure at
11,000 Chinook salmon will not apply
to those vessels that are parties to an
approved SMP, unless the non-whiting
sector has caught the entire 3,500
Chinook salmon bycatch reserve.
TABLE 3—SUMMARY OF GROUNDFISH FISHERIES CLOSURES DUE TO CHINOOK SALMON BYCATCH
Implemented with this final rule?
Close:
If Chinook salmon bycatch exceeds:
And:
Yes (reserve access rules) ..............................
Whiting sector ............
11,000 fish in the whiting sector.
No; previously established (83 FR 63970; December 12, 2018).
Yes (reserve access rules) ..............................
Whiting sector ............
14,500 fish in the whiting sector.
5,500 fish in the nonwhiting sector.
(1) NMFS has not implemented a routine
management measure to minimize Chinook
salmon bycatch OR (2) The non-whiting
sector has caught its 5,500 Chinook salmon bycatch guideline and 3,500 Chinook
salmon from the bycatch reserve.
The non-whiting sector has not accessed the
Chinook salmon bycatch reserve.
(1) NMFS has not implemented a routine
management measure to minimize Chinook
salmon bycatch OR (2) The whiting sector
has caught its 11,000 Chinook salmon
guideline and 3,500 Chinook salmon from
the bycatch reserve.
Yes (trawl fishery closures) ..............................
Non-whiting trawl fisheries (midwater
trawl and bottom
trawl fisheries under
the Shorebased IFQ
Program).
Non-whiting sector .....
No; previously established (83 FR 63970; December 12, 2018).
Yes (trawl fishery closures) ..............................
No; previously established (83 FR 63970; December 12, 2018).
Definition Correction
This final rule makes a minor
technical correction related to the
definition of ‘‘Mothership Coop
Program’’ at § 660.111. An inaccurate
amendatory instruction (80 FR 77271,
December 14, 2015) resulted in a
duplicative definition with an incorrect
title. This rule removes the definition
for ‘‘Mothership Coop Program or MS
Coop Program’’, and maintains the
definition for ‘‘Mothership (MS) Coop
Program or MS sector’’ at § 660.111.
This change is not substantive, as it
removes a redundant definition.
Comments and Responses
NMFS solicited public comment on
the proposed salmon bycatch
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
Non-whiting sector .....
All trawl fisheries
(whiting sector and
non-whiting trawl
fisheries).
All groundfish fisheries
8,500 fish in the nonwhiting sector.
9,000 fish in the nonwhiting sector.
19,500 fish in the whiting and non-whiting
sector.
20,000 fish in the whiting and non-whiting
sector.
minimization measures (85 FR 66519;
October 20, 2020). The comment period
ended November 19, 2020. NMFS
received seven comment letters: three
from industry groups, one from a nongovernmental organization, and three
from private citizens. One letter noted
several small errors or inconsistences in
the preamble to the proposed rule.
NMFS has addressed those in a separate
section below, Clarifications and
Corrections to the Preamble of the
Propose Rule. The comment letters are
available in their entirety from NMFS
(see ADDRESSES) or at the following web
address: https://www.regulations.gov/
docket?D=NOAA-NMFS-2019-0063.
Comment 1: Three private citizens
and one non-governmental organization
PO 00000
Frm 00160
Fmt 4700
The whiting sector has not accessed the Chinook salmon bycatch reserve.
Sfmt 4700
were supportive of the proposed salmon
bycatch minimization measures due to
the potential benefits for salmon
populations and other species like
Southern Resident killer whales.
Response 1: NMFS agrees and is
implementing the proposed measures
with the final rule.
Comment 2: The proposed rule lacks
information regarding the bycatch
guidelines and projections for coho
salmon bycatch.
Response: The effects of the rule on
Chinook and coho salmon overlap.
Therefore, NMFS examined these
species together in the proposed rule
analysis. This rule does not change the
coho salmon guidelines. As such, NMFS
did not discuss these details in the
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
proposed rule. NMFS manages coho
salmon bycatch to guidelines of 474 fish
for the whiting sector, and 560 fish for
the non-whiting sector. These
guidelines were established in the 2017
NMFS Biological Opinion. For
accounting purposes, coho salmon
bycatch accrues to either the whiting
sector or non-whiting sector. NMFS
monitors coho salmon bycatch inseason.
Comment 3: NMFS did not mention
any significant alternatives to the
bycatch minimization measures in the
IRFA of the proposed rule.
Response: Under the RFA, NMFS is
required to consider reasonable
regulatory alternatives that would
minimize the economic impact on
affected small entities. NMFS made this
consideration, and as documented in
the proposed and final rules, concluded
there are no significant alternatives to
the final rule that would accomplish the
stated objectives in a way that would
reduce economic impacts of the final
rule on small entities.
Comment 4: This rule should put
further restrictions on bottom trawling
to protect Chinook and coho salmon
habitat.
Response: This rule fulfills the terms
and conditions of a 2017 NMFS
Biological Opinion. This rule
establishes additional management tools
such as extending BACs for bottom
trawl fisheries, which may benefit
salmonid habitat. Further measures to
protect salmonid habitat are beyond the
scope of this action.
Comment 5: Pacific whiting
cooperatives should be allowed to
incorporate the SMP into the
cooperative agreement, as well as the
SMP post-season report into the annual
cooperative report.
Response: NMFS agrees and will work
with the cooperatives to implement this
administrative efficiency.
Comment 6: Two industry groups
expressed support for implementation
of the proposed SMP as a mechanism
for groups in the whiting sector to
access the Chinook salmon reserve.
Response: NMFS agrees and is
implementing the proposed measures
with the final rule.
Comment 7: Two industry groups
expressed concerns with a provision of
the proposed rule that ‘‘no vessel may
join or leave an SMP after it is
approved’’. Under the proposed rule,
those vessels party to the SMP would be
committed to follow the SMP provisions
for the year in which it is approved. The
industry groups contend this provision
is unnecessarily restrictive, would limit
flexibility, and potentially hinder
fishery performance. First, they argue
that whiting cooperatives are currently
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
allowed under their cooperative
agreements and cooperative permits to
change vessels participating in the
cooperative by submitting an amended
cooperative agreement to NMFS.
Catcher-processor limited entry trawl
permits are also transferable. These
flexibilities provide opportunities for
fishery participants and cooperatives to
optimize participation in the fishery.
Second, the industry groups contend
unforeseen circumstances might occur
requiring a vessel to leave a cooperative
or an SMP. This could include a vessel
ownership change or cooperative
actions against a vessel that is not
meeting the requirements of the
cooperative. The industry groups
recommended that any changes in
vessels party to the SMP could occur
through an SMP amendment.
Response: NMFS specifically sought
comment on this provision in the
proposed rule. NMFS proposed this
provision to: (1) Maximize the potential
salmon conservation benefits of an SMP;
(2) prevent vessels that did not follow
the SMP provisions throughout the year
from receiving the benefit of access into
the reserve on the basis of the SMP; and
(3) ensure NMFS can sufficiently
monitor and enforce a BAC from which
vessels party to an approved SMP are
exempt.
NMFS agrees with the commenter that
the provision could hinder flexible
salmon bycatch management in the
whiting sector. As such, NMFS did not
include this provision in this final rule.
NMFS agrees an SMP amendment is an
appropriate avenue to document and
approve membership changes. The SMP
amendment process will give NMFS
means to track current SMP
membership and ensure NMFS can
sufficiently monitor and enforce access
to a BAC from which vessels party to an
approved SMP are exempt.
If vessels were to join an SMP after it
was approved (i.e., mid-fishing year)
and receive benefits such as access to
salmon bycatch reserve or exemption
from further bycatch management
requirements, it may be inequitable for
the vessels that had been following the
SMP provisions throughout the year.
However, because the SMP group selfselects its members, it would be the
group’s choice to make membership
changes equitable. While maximum
salmon bycatch minimization benefits
may be realized when vessels follow
bycatch minimization requirements in
an SMP for a full fishing year, partial
year participation will still provide
benefits for salmon bycatch
minimization purposes.
NMFS agrees with the need for those
vessels party to the SMP to self-manage
PO 00000
Frm 00161
Fmt 4700
Sfmt 4700
10863
membership, including the removal of a
vessel that is not following the SMP
provisions. A vessel leaving an SMP
mid-fishing year would not present
equity issues, as that vessel would not
have automatic access to the reserve
once it leaves the SMP. NMFS will be
able to track vessels party to the SMP
through the SMP amendment process.
Per the reserve access rules in this final
rule, a salmon bycatch minimization
action would need to be implemented
prior to a vessel not party to an SMP
having access to the reserve. This would
provide the conservation benefits for
Chinook salmon envisioned by the
Council in recommending the reserve
access rules.
Comment 8: Voluntary, industrybased areas closures will be more timely
and effective than BACs to manage
salmon bycatch. Voluntary industry
closures are based upon near real-time
data and are adaptable to meet current
conditions on the fishing grounds. In
contrast, a BAC would be implemented
on a much slower time frame and could
be inconsistent with current fishing
conditions. Due to this lag, a BAC could
close a fishing area where salmon
bycatch is no longer occurring.
Response: NMFS agrees that industry
based area closures may be more timely
and effective than BACs. NMFS
encourages industry to continue such
voluntary measures in order to reduce
the need for regulatory area-based
closures like BACs. Per the 2017 NMFS
Biological Opinion, NMFS must manage
the fishery to the bycatch guidelines.
The Council recommended, and NMFS
agrees, that BACs would be a useful
management tool to have available
should mandatory salmon bycatch
minimization measures be necessary.
Comment 9: The extension of BACs
deeper than 250 fm is not needed
because a long history of fishery data
clearly indicates that salmon incidental
catch deeper than 250 fm is de minimis.
Response: Salmon bycatch rates are
generally low in depths greater than 250
fm (457 m) for trawl fisheries (Section
2.15 of the Analysis—see ADDRESSES).
However, salmon distribution is known
to extend into those depths. The
extension of BACs for bottom trawl
fisheries in this final rule would allow
NMFS to implement and modify BACs
in areas where salmon bycatch may
occur in order to keep the fishery sector
within bycatch guidelines.
Comment 10: NMFS will need to
enforce BACs which restrict access for
vessels without an approved SMP. In
addition to VMS tracking and on the
water patrols, NMFS could inform the
Pacific whiting cooperatives to alert
vessels under their structure that do not
E:\FR\FM\23FER1.SGM
23FER1
10864
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
have an approved SMP to cease fishing
operations within the BAC. The
documentation of which vessels are
party to an SMP would guide this effort.
Response: NMFS agrees that
documentation of vessels that are party
to an SMP is critical to the enforcement
of BACs that allow access for vessels
with an SMP. As such, NMFS will
require the vessel name and USCG
vessel registration number (as given on
USCG Form 1270) or state registration
number, if no USCG documentation, of
each vessel that is party to the SMP be
included in the SMP proposal.
Comment 11: Two commenters noted
the need for strong implementation,
monitoring, reporting of salmon bycatch
minimization measures, including the
SMP. In order to maximize the salmon
conservation benefits of an SMP, one
commenter noted the need for regular
in-season and post-season reporting of
salmon bycatch, as well as the
implementation of effective SMP
bycatch reduction tools.
Response: NMFS agrees that strong
reporting and monitoring are needed for
effective salmon bycatch management.
In the SMP post-season report NMFS
will require the SMP representative to
provide an evaluation of the
effectiveness of their avoidance
measures in minimizing Chinook
salmon bycatch. Salmon bycatch will
continue to be monitored by NMFS
throughout the fishing year as is
required by the 2017 Biological
Opinion. Salmon bycatch data is also
publically available online in near realtime through the Pacific Fisheries
Information Network’s Reports
Dashboard at https://reports.psmfc.org/
pacfin. Additionally, the Council
reviews salmon bycatch information at
each Council meeting and may
recommend routine management
measures to NMFS, if necessary to keep
fishery sectors within the bycatch
guidelines. NMFS agrees the bycatch
tools in the SMP need effective
implementation. NMFS noted in the
proposed rule that it expects the SMP to
promote reductions in Chinook salmon
bycatch relative to what would have
occurred in the absence of an SMP
because the SMP will require bycatch
minimization measures for all vessels
party to that SMP. This reduction would
occur because the SMP will require
bycatch minimization measures for all
vessels party to that SMP. In order to
clarify how an SMP would be evaluated,
consistent with the intent of the
Council, NMFS has included in the final
rule an additional SMP approval criteria
that the SMP must reasonably be
expected to reduce Chinook salmon
bycatch.
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
Comment 12: One commenter stated
the fishery closure authority provisions
previously implemented to fulfill
requirements of the 2017 NMFS
Biological Opinion are not consistent
with guidance and direction provided
by the Council to the agency in
developing the opinion. The commenter
noted the Council did not include, nor
think necessary, the closure authorities
independently developed by NMFS.
Response: In this final rule, NMFS is
not modifying the automatic fishery
closure mechanisms previously
implemented through the final rule to
implement harvest specifications and
management measures for the 2019–
2020 biennium (83 FR 63970; December
12, 2018). As such, this comment is
outside the scope of this action.
Changes From the Proposed Rule
In response to public comments
received and in order to provide clarity
to the new requirements, NMFS is
making four changes to the action as
proposed previously.
As detailed in the Comments and
Responses section, NMFS will require
the vessel name and USCG vessel
registration number (as given on USCG
Form 1270) or state registration number,
if no USCG documentation, of each
vessel that is party to the SMP be
included in the SMP proposal or any
SMP amendment. This requirement is
needed to sufficiently enforce BACs that
allow access for vessels with an SMP.
NMFS is also including a requirement
that the SMP proposal include a mailing
address for the SMP representative. This
will allow NMFS to send the SMP
representative correspondence through
the mail. These requirement do not
change the estimated public reporting
burden for the submission of an SMP.
As detailed in the Comments and
Responses section, NMFS is not
including in the final rule a provision of
the proposed rule that ‘‘no vessel may
join or leave an SMP after it is
approved’’. Under that provision, those
vessels party to the SMP would have
been committed to follow the SMP
provisions for the year in which it is
approved. Through this final rule,
NMFS will allow vessels to join or leave
an SMP after it is approved. The SMP
representative must submit any
membership changes through the SMP
amendment process. This change will
provide industry with flexibility to
manage salmon bycatch and self-select
its members, while still providing the
conservation benefits for salmon
envisioned by the Council in
recommending the reserve access rules.
The SMP amendment process will allow
NMFS to track current SMP
PO 00000
Frm 00162
Fmt 4700
Sfmt 4700
membership and ensure NMFS can
sufficiently monitor and enforce access
to a BAC from which vessels with an
approved SMP are exempt.
As detailed in the Comments and
Responses section, the proposed rule
lacked clarity on how the SMP would be
evaluated. In order to meet the objective
of the SMP to minimize salmon bycatch,
consistent with the Council’s intent for
this action, NMFS has clarified in the
final rule that the SMP must reasonably
be expected to reduce Chinook salmon
bycatch.
Clarifications and Corrections to the
Preamble of the Proposed Rule
The preamble to the proposed rule (85
FR 66519; October 20, 2020) on page
66521 was unclear in describing the
‘‘whiting sector’’ and ‘‘non-whiting
sector’’ with respect to Pacific Coast
treaty Indian vessels. The final rule
revised these descriptions to clarify that
vessels that participate in the Pacific
Coast treaty Indian groundfish fisheries
are not part of the MS, C/P, or IFQ
programs.
Table 2 of the preamble to the
proposed rule (page 66523) summarized
the closure thresholds for reserve access
rules. Table 2 incorrectly stated a
closure condition for the non-whiting
sector. This table, Table 1 of this final
rule, has been revised to clarify that the
non-whiting sector will close at 5,550
Chinook salmon if the whiting sector
has caught its 11,000 Chinook salmon
bycatch guideline and 3,500 Chinook
salmon from the bycatch reserve.
In the preamble to the proposed rule
NMFS incorrectly stated on page 66523
that SFFT gear requirements were an
example of a routine management
measure to minimize salmon bycatch in
the whiting sector. Whiting trawlers do
not use SFFT gear. Therefore, this final
rule omits reference to SFFT gear
requirements for the whiting sector.
The preamble to the proposed rule on
page 66523 inadvertently omitted a
provision for closing the whiting sector
due to Chinook salmon bycatch. The
preamble to the proposed rule stated
‘‘the entire whiting sector, including
those with an approved SMP, would
close if the non-whiting sector has
caught its 5,500 Chinook salmon
bycatch guideline and 3,500 Chinook
salmon from the bycatch reserve’’. As
clarified in the final rule, this fishery
closure will only occur if the whiting
sector has caught 11,000 Chinook
salmon.
Classification
NMFS is issuing this rule pursuant to
section 304(b)(1)(A) and 305(d) of the
Magnuson-Stevens Act, which provides
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
specific authority and procedure for
implementing this action. Section
304(b)(1)(A) authorizes NMFS to
implement a rule deemed by the
Council under section 303(c) to
implement regulatory amendments.
Pursuant to MSA Section 305(d), this
action is necessary to carry out a minor
technical correction because of an error
in the regulatory text. The NMFS
Assistant Administrator has determined
that this final rule is consistent with the
FMP, other provisions of the MagnusonStevens Act, and other applicable law.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
NMFS prepared a final regulatory
flexibility analysis (FRFA) under section
604 of the RFA, which incorporates the
IRFA. A summary of any significant
issues raised by the public comments in
response to the IRFA, NMFS’s responses
to those comments, and a summary of
the analyses completed to support the
action are addressed below. NMFS also
prepared a RIR for this action. A copy
of the RIR and IRFA is available from
NMFS (see ADDRESSES for electronic
access information), and per the
requirements of 5 U.S.C. 604(a), the text
of the FRFA follows:
As applicable, section 604 of the RFA
requires an agency to prepare a FRFA
after being required by that section or
any other law to publish a general
notice of proposed rulemaking and
when an agency promulgates a final rule
under 5 U.S.C. 553. The following
paragraphs constitute the FRFA for this
action.
This FRFA incorporates the IRFA, a
summary of any significant issues raised
by the public comments, NMFS’s
responses to those comments, and a
summary of the analyses completed to
support the action. Analytical
requirements for the FRFA are described
in the RFA, section 604(a)(1) through
(6). FRFAs contain:
1. A statement of the need for, and
objectives of, the rule;
2. A statement of the significant issues
raised by the public comments in
response to the IRFA, a statement of the
assessment of the agency of such issues,
and a statement of any changes made in
the proposed rule as a result of such
comments;
3. The response of the agency to any
comments filed by the Chief Counsel for
Advocacy of the Small Business
Administration (SBA) in response to the
proposed rule, and a detailed statement
of any change made to the proposed rule
in the final rule as a result of the
comments;
4. A description and an estimate of
the number of small entities to which
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
the rule will apply, or an explanation of
why no such estimate is available;
5. A description of the projected
reporting, recordkeeping, and other
compliance requirements of the rule,
including an estimate of the classes of
small entities which will be subject to
the requirement and the type of
professional skills necessary for
preparation of the report or record; and
6. A 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,
including a statement of the factual,
policy, and legal reasons for selecting
the alternative adopted in the final rule
and why each one of the other
significant alternatives to the rule
considered by the agency which affect
the impact on small entities was
rejected.
The ‘‘universe’’ of entities to be
considered in a FRFA generally
includes only those small entities that
can reasonably be expected to be
directly regulated by the action. If the
effects of the rule fall primarily on a
distinct segment of the industry, or
portion thereof (e.g., user group, gear
type, geographic area), that segment will
be considered the universe for purposes
of this analysis.
In preparing a FRFA, an agency may
provide either a quantifiable or
numerical description of the effects of a
rule (and alternatives to the rule), or
more general descriptive statements, if
quantification is not practicable or
reliable.
Need for and Objective of This Final
Rule
The need for and objective of this
final rule is described above in the
Background section of the preamble and
not repeated here.
Summary of Significant Issues Raised
During Public Comment
NMFS published a proposed rule to
implement salmon bycatch
minimization measures for the Pacific
coast groundfish fishery on October 20,
2020 (85 FR 66519). An IRFA was
prepared and summarized in the
Classification section of the preamble to
the proposed rule. The comment period
on the proposed rule ended on
November 19, 2020. NMFS received
seven comment letters on the proposed
rule. One comment was received
specific to the IRFA. The comment
incorrectly asserted NMFS did not
consider any significant alternatives to
the bycatch minimization measures in
the IRFA. As documented in the
proposed and final rule, NMFS made
PO 00000
Frm 00163
Fmt 4700
Sfmt 4700
10865
this consideration and concluded there
are no significant alternatives. This
comment is discussed further in the
Comments and Responses section
above. This comment did not raise
significant issues relative to the
measures in the proposed rule. The
Chief Counsel for Advocacy of the SBA
did not file any comments on the IRFA
or the proposed rule.
A Description and an Estimate of the
Number of Small Entities to Which the
Rule Will Apply
The RFA (5 U.S.C. 601 et seq.)
requires government agencies to assess
the effects that regulatory alternatives
would have on small entities, defined as
any business/organization
independently owned and operated and
not dominant in its field of operation
(including its affiliates). A small
harvesting business has combined
annual receipts of $11 million or less for
all affiliated operations worldwide. A
small fish-processing business is one
that employs 750 or fewer persons for
all affiliated operations worldwide.
For marinas and charter/party boats, a
small business is one that has annual
receipts not in excess of $7.5 million. A
wholesale business 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. A nonprofit organization is
determined to be ‘‘not dominant in its
field of operation’’ if it is considered
small under one of the following SBA
size standards: environmental,
conservation, or professional
organizations are considered small if
they have combined annual receipts of
$15 million or less, and other
organizations are considered small if
they have combined annual receipts of
$7.5 million or less.
The RFA defines small governmental
jurisdictions as governments of cities,
counties, towns, townships, villages,
school districts, or special districts with
populations of less than 50,000.
This final rule will directly affect all
commercial groundfish vessels and
select recreational groundfish vessels. In
the C/P sector, all three permit owners
(owning the collective 10 permits) selfreported as large entities. For the MS
sector, of the 31 MS/Catcher Vessel
endorsed permits, 25 permits and their
associated vessels are registered as small
entities. Nine permits held by seven
entities self-reported as large, with one
entity owning three permits. In order to
fish in the shoreside whiting or
midwater trawl sector, a limited entry
trawl endorsed permit is required. Of
the 164 limited entry trawl endorsed
E:\FR\FM\23FER1.SGM
23FER1
10866
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
permits (excluding those with a C/P
endorsement), 110 permit owners
holding 129 permits classified
themselves as small entities. The
average small entity owns 1.17 permits
with 15 entities owning more than one
permit. However, given that between 23
and 26 vessels have participated in the
shoreside whiting fishery in the last
three years and the same range of
vessels in the midwater rockfish
fisheries, this is an overestimate of the
potential impacted number of small
entities. Additionally, it is likely some
entities own more than one vessel. From
2016–2018, there were 67–74 bottom
trawl vessels.
Since 2016–18, there have been 17 to
23 fixed gear participants in the IFQ
fishery, 136 to 144 in the limited entry
fixed gear fisheries, and 746 to 769 in
the open access fisheries. Of those fixed
gear IFQ participants, there have been
between 17 and 19 permits used to land
groundfish. In 2018, an estimated 13 of
these trawl endorsed permits were
classified as small entities (based on
2019 declarations). In 2019, 208 of the
239 fixed gear endorsed limited entry
permits (required to fish in the primary
or limited entry fixed gear sectors)
reported as small entities. For the
permits that reported as large entities,
one entity owned three permits and
three owned two permits. All open
access vessels are assumed to be small
entities, with ex-vessel revenues for all
landings averaging $8,966 in 2018.
For the recreational sector, all charter
businesses are designated as small
entities. The portion of the recreational
fishery that will be affected by this
action are those groundfish trips
occurring outside of the salmon season.
Therefore, the estimates provided here
may be an overestimate of the actual
number of entities or trips that may be
affected depending on when the salmon
seasons are set and when a closure
could occur. For Washington, there
were 55 unique charter vessels that took
20,833 bottomfish trips in 2018. In 2018,
there were 48 charter vessels that took
an estimated 19,208 angler trips in
Oregon. However, this estimate does not
include guide boats that do not have an
official office. In California, there were
approximately 290 vessels targeting
bottomfish or lingcod, according to
logbook submissions, that took an
estimated 504,118 angler trips.
The economic effects of the final rule
are described in Section 4.6 of the
Analysis (see ADDRESSES). The
economic effects of the additional
management tools to minimize ESAlisted salmon bycatch will depend on
the extent and timing of the measure
that is implemented. It is likely that
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
there will be some negative economic
impact on small entities with the
implementation of a BAC or SFFT gear
requirement. Vessels will potentially
have to move from closed fishing
locations, which may decrease the
effectiveness at accessing target species.
Cooperatives or other groups of
vessels in the Pacific whiting C/P, MS,
and shoreside IFQ sectors may incur
additional administrative costs
associated with developing and
submitting the SMP and the post-season
report. Because we estimate the
reporting burden to average 10 hours
per response for the SMP proposal, and
8 hours per response for the SMP postseason report, we do not expect the
reporting requirement to impact
profitability of operations for small or
large entities.
Economic impacts to small entities
affected by the trawl closure thresholds
will depend on the time that the
automatic closure points were reached.
Table 3.15 of the Analysis details the
potential estimated losses for fisheries
by month. If the trawl sectors were to
unexpectedly close the recreational
sectors in November, this could be a
loss of $27.4 million in revenue.
There are no direct costs associated
with the rules for access to the reserve.
However, implementation of any
inseason bycatch minimization
measures prior to a sector accessing the
reserve would have associated economic
impacts. For example, if there were
unexpected high bycatch in the nonwhiting sector, NMFS would have to
implement bycatch minimization
measures such as a BAC prior to that
sector accessing the reserve. The
associated impacts would be those
described above for the additional
bycatch minimization tools.
Recordkeeping, Reporting, and Other
Compliance Requirements
Additional reporting or recordkeeping
may be required of the regulated entities
under the final action. Cooperatives or
other groups of Pacific whiting vessels
will have new reporting requirements if
they chose to submit an SMP to NMFS
for approval. The cooperatives or other
groups of vessels with an approved SMP
will also be required to submit a postseason report to the Council and NMFS.
The final rule adds a declaration to the
suite of available declarations to allow
NMFS OLE to sufficiently monitor and
enforce SFFT gear requirements. This
change will have negligible impact on a
vessel’s reporting burden.
PO 00000
Frm 00164
Fmt 4700
Sfmt 4700
Description of Significant Alternatives
to This Final Rule That Minimize
Economic Impacts on Small Entities
There are no significant alternatives to
the final rule that would accomplish the
stated objectives in a way that would
reduce economic impacts of the final
rule on small entities. This action
allows NMFS to exempt any take of
listed species from the prohibitions that
would otherwise be imposed by Section
9 of the ESA by complying with the
terms and conditions in the 2017 NMFS
Biological Opinion, which specify
certain measures for the Council and
NMFS to develop and implement, or
consider to minimize bycatch of ESAlisted Chinook and coho salmon. For
that reason, there are no significant
alternatives to the action evaluated in
this FRFA.
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, a small entity
compliance guide (the guide) was
prepared. Copies of this final rule are
available from the West Coast Regional
Office (see ADDRESSES), and the guide
will be included in a public notice sent
to all members of the groundfish email
group. To sign-up for the groundfish
email group, input your email address
and name and then click on the ‘‘sign
up’’ button on the following website:
https://lp.constantcontactpages.com/su/
koE8GSV/groundfish. The guide and
this final rule will also be available on
the West Coast Region’s website (see
ADDRESSES) and upon request.
Paperwork Reduction Act Collection-ofInformation Requirements
This final rule contains a new
collection-of-information requirement
subject to review and approval by OMB
under the Paperwork Reduction Act
(PRA) (OMB Control Number 0648–
0794). This rule creates new
requirements for the submission of
SMPs and post-season reports. The
following public reporting burden
estimates for the submission of SMPs
and post-season reports under this final
rule include the time for reviewing
instructions, searching existing data
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection information.
Public reporting burden is estimated to
average 10 hours per response for the
SMP proposal, 3 hours per response for
an SMP amendment, 6 hours per
response for an administrative appeal of
a disapproved SMP, and 8 hours per
response for the SMP post-season
report.
We invite the general public and other
Federal agencies to comment on
proposed and continuing information
collections, which helps us assess the
impact of our information collection
requirements and minimize the public’s
reporting burden. Written comments
and recommendations for this
information collection should be
submitted at the following website:
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by using the search function
and entering the title of the collection,
‘‘Pacific Coast Groundfish Salmon
Bycatch Minimization’’.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a 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 OMB Control Number.
the various purposes for which NMFS
may implement certain types of GCAs
through routine management measures.
Regulations at § 660.70 further describe
and define coordinates for certain GCAs,
including: Yelloweye Rockfish
Conservation Areas; Cowcod
Conservation Areas; waters encircling
the Farallon Islands; and waters
encircling the Cordell Banks. GCAs also
include depth-based closures bounded
by lines approximating depth contours,
including Bycatch Reduction Areas or
BRAs, or bounded by depth contours
and lines of latitude, including, Block
Area Closures or BACs, and Rockfish
Conservation Areas or RCAs, which may
be closed to fishing with particular gear
types. BRA, BAC, and RCA boundaries
may change seasonally according to
conservation needs. Regulations at
§§ 660.71 through 660.74, and § 660.76
define depth-based closure boundary
lines with latitude/longitude
coordinates. Regulations at § 660.11
describe commonly used geographic
coordinates that define lines of latitude.
Fishing prohibitions associated with
GCAs are in addition to those associated
with other conservation areas.
*
*
*
*
*
■ 3. Amend § 660.12 by adding
paragraph (a)(19) to read as follows:
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, Reporting and
recordkeeping requirements.
*
Dated: February 10, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, NMFS amends 50 CFR part
660 as follows:
PART 660—FISHERIES OFF WEST
COAST STATES
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.
2. Amend § 660.11, in the definition
of ‘‘Conservation area(s)’’, by revising
the introductory text to paragraph (1) to
read as follows:
■
§ 660.11
General definitions.
*
*
*
*
*
Conservation area(s) * * *
(1) Groundfish Conservation Area or
GCA means a conservation area created
or modified and enforced to control
catch of groundfish or protected species.
Regulations at § 660.60(c)(3) describe
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
§ 660.12
General groundfish prohibitions.
*
*
*
*
(a) * * *
(19) Fish for, or take and retain, any
species of groundfish, during salmon
bycatch fishery closures described in
§ 660.60(d)(1)(iv) and (v), or fail to
comply with the salmon bycatch
management provisions described in
§ 660.60(i).
*
*
*
*
*
■ 4. Amend § 660.13 by:
■ a. Revising paragraph (d)(4)(iv)(A)(10);
■ b. Republishing paragraph
(d)(4)(iv)(A)(11);
■ c. Revising paragraphs
(d)(4)(iv)(A)(12) through (30); and
■ d. Adding paragraph (d)(4)(iv)(A)(31).
The revisions, republication, and
addition read as follows:
§ 660.13
Recordkeeping and reporting.
*
*
*
*
*
(d) * * *
(4) * * *
(iv) * * *
(A) * * *
(10) Limited entry bottom trawl,
shorebased IFQ, not including demersal
trawl or selective flatfish trawl,
(11) Limited entry demersal trawl,
shorebased IFQ,
(12) Limited entry selective flatfish
trawl, shorebased IFQ,
PO 00000
Frm 00165
Fmt 4700
Sfmt 4700
10867
(13) Non-groundfish trawl gear for
pink shrimp,
(14) Non-groundfish trawl gear for
ridgeback prawn,
(15) Non-groundfish trawl gear for
California halibut,
(16) Non-groundfish trawl gear for sea
cucumber,
(17) Open access longline gear for
groundfish,
(18) Open access Pacific halibut
longline gear,
(19) Open access groundfish trap or
pot gear,
(20) Open access Dungeness crab trap
or pot gear,
(21) Open access prawn trap or pot
gear,
(22) Open access sheephead trap or
pot gear,
(23) Open access line gear for
groundfish,
(24) Open access HMS line gear,
(25) Open access salmon troll gear,
(26) Open access California Halibut
line gear,
(27) Open access Coastal Pelagic
Species net gear,
(28) Other gear,
(29) Tribal trawl,
(30) Open access California gillnet
complex gear, or
(31) Gear testing.
*
*
*
*
*
■ 5. Amend § 660.50 by revising
paragraph (h) to read as follows:
§ 660.50 Pacific Coast treaty Indian
fisheries.
*
*
*
*
*
(h) Salmon bycatch. This fishery may
be closed through automatic action at
§ 660.60(d)(1)(v).
6. Amend § 660.60 by revising
paragraphs (c)(3)(i) introductory text,
(c)(3)(i)(C), and (d)(1)(iv) and (v) and
adding paragraph (i) to read as follows:
■
§ 660.60 Specifications and management
measures.
*
*
*
*
*
(c) * * *
(3) * * *
(i) Depth-based management
measures. Depth-based management
measures, particularly closed areas
known as Groundfish Conservation
Areas, defined in § 660.11, include
RCAs, BRAs, and BACs, and may be
implemented in any fishery sector that
takes groundfish directly or
incidentally. Depth-based management
measures are set using specific
boundary lines that approximate depth
contours with latitude/longitude
waypoints found at §§ 660.70 through
660.74 and 660.76. Depth-based
management measures and closed areas
E:\FR\FM\23FER1.SGM
23FER1
10868
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
may be used for the following
conservation objectives: To protect and
rebuild overfished stocks; to prevent the
overfishing of any groundfish species by
minimizing the direct or incidental
catch of that species; or to minimize the
incidental harvest of any protected or
prohibited species taken in the
groundfish fishery. Depth-based
management measures and closed areas
may be used for the following economic
objectives: To extend the fishing season;
for the commercial fisheries, to
minimize disruption of traditional
fishing and marketing patterns; for the
recreational fisheries, to spread the
available catch over a large number of
anglers; to discourage target fishing
while allowing small incidental catches
to be landed; and to allow small
fisheries to operate outside the normal
season.
*
*
*
*
*
(C) Block Area Closures. BACs, as
defined at § 660.111, may be closed or
reopened, in the EEZ off Oregon and
California, for vessels using limited
entry bottom trawl gear, and in the EEZ
off Washington, Oregon and California
for vessels using midwater trawl gear,
consistent with the purposes described
in this paragraph (c)(3)(i).
*
*
*
*
*
(d) * * *
(1) * * *
(iv) Close the following groundfish
fisheries, not including Pacific Coast
treaty Indian fisheries, when conditions
for Chinook salmon bycatch described
in this table and paragraphs (d)(1)(iv)(A)
and (B) of this section are met:
TABLE 1 TO PARAGRAPH (d)(1)(iv)
Close:
If Chinook salmon bycatch, as
described in § 660.60(i)(2), exceeds:
And:
Whiting sector (Pacific whiting IFQ fishery, MS
Coop Program and/or C/P Coop Program).
11,000 fish in the whiting sector .........
Whiting sector (Pacific whiting IFQ fishery, MS
Coop Program and C/P Coop Program).
Non-whiting sector (midwater trawl, bottom trawl,
and fixed gear fisheries under the Shorebased
IFQ Program, limited entry fixed gear fisheries,
open access fisheries, and recreational fisheries
subject to this provision as set out in
§ 660.360(d)).
Non-whiting sector (midwater trawl, bottom trawl,
and fixed gear fisheries under the Shorebased
IFQ Program, limited entry fixed gear fisheries,
open access fisheries, and recreational fisheries
subject to this provision as set out in
§ 660.360(d)).
Non-whiting trawl fisheries (midwater trawl and bottom trawl fisheries under the Shorebased IFQ
Program).
All trawl fisheries (whiting sector and non-whiting
trawl fisheries).
14,500 fish in the whiting sector .........
(1) A routine management measure specified at
§ 660.60(c) has not been implemented as described in § 660.60(i)(1) OR (2) The non-whiting
sector has caught its 5,500 Chinook salmon bycatch guideline and 3,500 Chinook salmon from
the bycatch reserve.
The non-whiting sector has not accessed the Chinook salmon bycatch reserve.
(1) A routine management measure specified at
§ 660.60(c) has not been implemented as described in § 660.60(i)(1) OR (2) The whiting sector has caught its 11,000 Chinook salmon
guideline and 3,500 Chinook salmon from the
bycatch reserve.
The whiting sector has not accessed the Chinook
salmon bycatch reserve.
(A) Consistent with § 660.60(i)(2),
each component of the whiting sector
(Pacific whiting IFQ fishery, MS Coop
Program and C/P Coop Program) will be
closed when Chinook salmon bycatch
exceeds 11,000 Chinook salmon if a
routine management measure specified
at § 660.60(c) has not been implemented
as described in § 660.60(i)(2) for that
individual component of the whiting
sector.
(B) Consistent with § 660.60(i)(2), the
Chinook salmon closure at 11,000 fish
does not apply to those whiting sector
vessels that are parties to an approved
Salmon Mitigation Plan, as specified at
§ 660.113(e), unless the non-whiting
sector has caught the entire 3,500
Chinook salmon bycatch reserve.
(v) Close all groundfish fisheries,
including Pacific Coast treaty Indian
fisheries, if Chinook salmon bycatch in
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
5,500 fish in the non-whiting sector ...
9,000 fish in the non-whiting sector ...
8,500 fish in the non-whiting sector.
19,500 fish in the whiting and nonwhiting sector.
the groundfish fishery exceeds 20,000
fish.
*
*
*
*
*
(i) Salmon bycatch management.
Salmon bycatch is managed through
routine management measures, salmon
bycatch guidelines and a Chinook
salmon bycatch reserve, and fisheries
closures. For purposes of salmon
bycatch management, the groundfish
fishery is divided into the whiting
sector and non-whiting sector and
includes bycatch of Chinook salmon
and coho salmon from both non-tribal
fisheries and Pacific Coast treaty Indian
fisheries. The non-whiting sector
includes the Pacific Coast treaty Indian
vessels that target Pacific coast
groundfish species other than whiting,
as well as non-tribal vessels that target
Pacific coast groundfish species other
than whiting in the midwater trawl,
bottom trawl, and fixed gear fisheries
under the Shorebased IFQ Program,
PO 00000
Frm 00166
Fmt 4700
Sfmt 4700
limited entry fixed gear fisheries, open
access fisheries as defined at § 660.11,
and recreational fisheries subject to this
provision as set out in § 660.360(d). The
whiting sector is the Pacific whiting
fishery, as defined in § 660.111, and
includes the Pacific Coast treaty Indian
vessels that target whiting, as well as
non-tribal vessels that target whiting
participating in the C/P Coop Program,
the MS Coop Program, and the Pacific
whiting IFQ fishery.
(1) Routine management measures.
Routine management measures
specified at § 660.60(c) may be
implemented to minimize Chinook
salmon and/or coho salmon bycatch in
the groundfish fishery. These measures
may include BRAs, BACs, or a selective
flatfish trawl gear requirement. These
measures would not apply to vessels
fishing in Pacific Coast treaty Indian
fisheries.
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
(i) Non-whiting sector. Routine
management measures to manage
salmon bycatch in the non-whiting
sector include:
(A) A BAC for bottom trawl or
midwater trawl as specified at
§ 660.60(c)(3)(i).
(B) A BRA for midwater trawl as
specified at § 660.60(c)(3)(i).
(C) A selective flatfish trawl gear
requirement for bottom trawl.
(ii) Whiting sector. Routine
management measures to manage
salmon bycatch in the whiting sector
include:
(A) A BAC as specified at
§ 660.60(c)(3)(i).
(B) A BRA as specified at
§ 660.60(c)(3)(i).
(2) Chinook salmon bycatch
guidelines and Chinook salmon bycatch
reserve. The Chinook salmon bycatch
guideline for the non-whiting sector is
5,500 fish. The Chinook salmon bycatch
guideline for the whiting sector is
11,000 fish. If a sector exceeds its
Chinook salmon bycatch guideline, it
may access a reserve of 3,500 Chinook
salmon reserve provided action has
been taken to minimize Chinook salmon
bycatch as described in paragraph
(i)(2)(i) or (ii) of this section. For
bycatch accounting purposes, all
Chinook salmon bycatch from the
groundfish fishery, including both nontribal and Pacific Coast treaty Indian
fisheries, counts towards the applicable
whiting or non-whiting sector bycatch
guideline and the reserve.
(i) Reserve access for the non-whiting
sector. The non-whiting sector may only
access the reserve if a measure
described in paragraph (i)(1)(i) of this
section has been implemented.
(ii) Reserve access for the whiting
sector. Each component of the whiting
sector (Pacific whiting IFQ fishery, MS
Coop Program and C/P Coop Program)
may only access the reserve if a measure
described in paragraph (i)(1)(ii) of this
section has been implemented for that
component of the whiting fishery. If a
measure described in paragraph (i)(1)(ii)
of this section has not been
implemented for that component of the
whiting fishery, vessels within that
component that are parties to an
approved Salmon Mitigation Plan
(SMP), as specified at § 660.113(e), may
access the reserve.
(3) Fisheries closures. Groundfish
fisheries may be closed through
automatic action at § 660.60(d)(1)(iv)
and (v).
7. Amend § 660.111 by:
a. Revising the definition of ‘‘Block
area closures or BACs’’;
■
■
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
b. Removing the definition of
‘‘Mothership Coop Program or MS Coop
Program’’; and
■ c. Adding a definition for ‘‘Salmon
Mitigation Plan (SMP)’’ in alphabetical
order.
The revision and addition read as
follows:
■
§ 660.111
Trawl fishery—definitions.
*
*
*
*
*
Block area closures or BACs are a type
of groundfish conservation area, defined
at § 660.11, bounded on the north and
south by commonly used geographic
coordinates, defined at § 660.11, and on
the east and west by the EEZ, and
boundary lines approximating depth
contours, defined with latitude and
longitude coordinates at §§ 660.71
through 660.74 (10 fm through 250 fm),
and § 660.76 (700 fm). BACs may be
implemented or modified as routine
management measures, per regulations
at § 660.60(c). BACs may be
implemented in the EEZ off Oregon and
California for vessels using limited entry
bottom trawl and/or midwater trawl
gear. BACs may be implemented in the
EEZ off Washington shoreward of the
boundary line approximating the 250-fm
depth contour for midwater trawl
vessels. BACs may close areas to
specific trawl gear types (e.g. closed for
midwater trawl, bottom trawl, or bottom
trawl unless using selective flatfish
trawl) and/or specific programs within
the trawl fishery (e.g. Pacific whiting
fishery or MS Coop Program). BACs may
vary in their geographic boundaries and
duration. Their geographic boundaries,
applicable gear type(s) and/or specific
trawl fishery program, and effective
dates will be announced in the Federal
Register. BACs may have a specific
termination date as described in the
Federal Register, or may be in effect
until modified. BACs that are in effect
until modified by Council
recommendation and subsequent NMFS
action are set out in Tables 1 (North)
and 1 (South) of this subpart.
*
*
*
*
*
Salmon Mitigation Plan (SMP) means
a voluntary agreement amongst a group
of at least three vessels in the MS Coop
Program, C/P Coop Program, or Pacific
whiting IFQ fishery to manage Chinook
salmon bycatch, approved by NMFS
under § 660.113(e). Vessels fishing
under an approved SMP would have
access to the Chinook salmon bycatch
reserve as described in § 660.60(i)(2).
Routine management measures to
minimize Chinook salmon bycatch as
described in § 660.60(i) may be
PO 00000
Frm 00167
Fmt 4700
Sfmt 4700
10869
implemented for vessels that are parties
to an approved SMP.
*
*
*
*
*
■ 8. Amend § 660.113 by adding
paragraph (e) to read as follows:
§ 660.113 Trawl fishery—recordkeeping
and reporting.
*
*
*
*
*
(e) Salmon Mitigation Plan (SMP).
NMFS may approve a SMP for a group
of at least three vessels in the MS Coop
Program, C/P Coop Program, or Pacific
whiting IFQ fishery. NMFS may
approve an SMP for more than one
group in a given year.
(1) Applicability of further measures
to manage salmon bycatch. Routine
management measures to minimize
Chinook salmon bycatch as described in
§ 660.60(i) may be implemented for
vessels with an approved SMP.
(2) SMP contents. The SMP must
contain, at a minimum, the following—
(i) SMP name. The name of the SMP.
(ii) Vessels party to the SMP. The
vessel name and USCG vessel
registration number (as given on USCG
Form 1270) or state registration number,
if no USCG documentation, of each
vessel that is party to the SMP. A
minimum of three vessels must be party
to the SMP.
(iii) Compliance agreement. A written
statement that all parties to the SMP
agree to voluntarily comply with all
provisions of the SMP.
(iv) Signatures of those party to SMP.
The names and signatures of the owner
or representative for each vessel that is
party to the SMP.
(v) Designated SMP representative.
The name, telephone number, mailing
address, and email address of a person
appointed by those party to the SMP
who is responsible for:
(A) Serving as the SMP contact person
between NMFS and the Council;
(B) Submitting the SMP proposal and
any SMP amendments; and
(C) Submitting the SMP postseason
report to the Council and NMFS.
(vi) Plan. A description of:
(A) How parties to the SMP will
adequately monitor and account for the
catch of Chinook salmon.
(B) How parties to the SMP will avoid
and minimize Chinook salmon bycatch,
including a description of tools parties
will employ. Tools may include, but
would not be limited to, information
sharing, area closures, movement rules,
salmon excluder use, and internal
bycatch guidelines.
(C) How the SMP is expected to
promote reductions in Chinook salmon
bycatch relative to what would have
occurred in absence of the SMP.
(3) Deadline for proposed SMP. A
proposed SMP must be submitted
E:\FR\FM\23FER1.SGM
23FER1
10870
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
between February 1 and March 31 of the
year in which it intends to be in effect
to NMFS at: NMFS, West Coast Region,
ATTN: Fisheries Permit Office, Bldg. 1,
7600 Sand Point Way NE, Seattle, WA
98115. In 2021, NMFS may consider
proposals received after March 31. In
2021, NMFS will announce any changes
to the SMP submission deadline via
public notice. In 2022 and beyond,
NMFS will not consider any proposals
received after March 31.
(4) Duration. Once approved, the SMP
expires on December 31 of the year in
which it was approved. An SMP may
not expire mid-year. No party may join
or leave an SMP once it is approved,
except as allowed in paragraph (e)(5)(iii)
of this section.
(5) NMFS review of a proposed SMP—
(i) Approval. The Assistant Regional
Administrator will provide written
notification of approval to the
designated SMP representative if the
SMP meets the following requirements:
(A) Contains the information required
in paragraph (e)(2) of this section;
(B) Is submitted in compliance with
the requirements of paragraphs (e)(3)
and (4) of this section; and
(C) As determined by NMFS, is
reasonably expected to reduce Chinook
salmon bycatch.
(ii) SMP identification number. If
approved, NMFS will assign an SMP
identification number to the approved
SMP.
(iii) Amendments to an SMP. After
the SMP is approved, the designated
SMP representative must submit any
changes to the SMP, including any
changes in the vessels party to the SMP,
as an amendment to the SMP for
approval by NMFS. The designated SMP
representative may submit amendments
to an approved SMP to NMFS at any
time during the year in which the SMP
is approved. The amendment must
include the SMP identification number.
An amendment to an approved SMP is
effective upon written notification of
approval by NMFS to the designated
SMP representative. The Assistant
Regional Administrator will provide
written notification of approval to the
designated SMP representative if the
SMP as amended meets the following
requirements:
(A) Contains the information required
in paragraph (e)(2) of this section;
(B) Is submitted in compliance with
the requirements of paragraph (e)(4) of
this section; and
(C) As determined by NMFS, is
reasonably expected to reduce Chinook
salmon bycatch.
(iv) Disapproval—(A) NMFS
Disapproval. NMFS will disapprove a
proposed SMP or a proposed
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
amendment to an SMP for any of the
following reasons:
(1) If the proposed SMP fails to meet
any of the requirements of paragraphs
(e)(2) through (4) of this section,
(2) If a proposed amendment to an
SMP would cause the SMP to no longer
meet the requirements of paragraphs
(e)(2) and (4) of this section, or
(3) If NMFS determines the proposed
SMP or SMP amendment is not
reasonably expected to reduce Chinook
salmon bycatch.
(B) Initial Administrative
Determination (IAD). If, in NMFS’
review of the proposed SMP or
amendment, NMFS identifies
deficiencies in the proposed SMP that
would require disapproval of the
proposed SMP or amendment, NMFS
will notify the applicant in writing. The
applicant will be provided one 30-day
period to address, in writing, the
deficiencies identified by NMFS.
Additional information or a revised
SMP received by NMFS after the
expiration of the 30-day period
specified by NMFS will not be
considered for purposes of the review of
the proposed SMP or amendment.
NMFS will evaluate any additional
information submitted by the applicant
within the 30-day period. If the
Assistant Regional Administrator
determines the additional information
addresses deficiencies in the proposed
SMP or amendment, the Assistant
Regional Administrator will approve the
proposed SMP or amendment under
paragraph (e)(5)(i) or (iii) of this section.
However, if, after consideration of the
original proposed SMP or amendment,
any additional information, or a revised
SMP submitted during the 30-day
period, NMFS determines the proposed
SMP or amendment does not comply
with the requirements of paragraph
(e)(5)(i) or (iii) of this section, the
Assistant Regional Administrator will
issue an IAD to the applicant in writing
providing the reasons for disapproving
the proposed SMP or amendment.
(C) Administrative Appeals. An
applicant who receives an IAD
disapproving a proposed SMP or
amendment may appeal. The appeal
must be filed in writing within 30
calendar days of when NMFS issues the
IAD. The NOAA Fisheries National
Appeals Office will process any appeal.
The regulations and policy of the
National Appeals Office will govern the
appeals process. The National Appeals
Office regulations are specified at 15
CFR part 906.
(D) Pending appeal. While the appeal
of an IAD disapproving a proposed SMP
or amendment is pending, proposed
parties to the SMP subject to the IAD
PO 00000
Frm 00168
Fmt 4700
Sfmt 4700
will not have access to the Chinook
salmon bycatch reserve unless a
measure described in § 660.60(i)(1)(ii)
has been implemented for that
component of the whiting fishery.
(6) SMP postseason report. The
designated SMP representative for an
approved SMP must submit a written
postseason report to NMFS and the
Council for the year in which the SMP
was approved.
(i) Submission deadline. The SMP
postseason report must be received by
NMFS and the Council no later than
March 31 of the year following that in
which the SMP was approved.
(ii) Information requirements. The
SMP postseason report must contain, at
a minimum, the following information:
(A) Name of the SMP and SMP
identification number.
(B) A comprehensive description of
Chinook salmon bycatch avoidance
measures used in the fishing year in
which the SMP was approved,
including but not limited to,
information sharing, area closures,
movement rules, salmon excluder use,
and internal bycatch guidelines.
(C) An evaluation of the effectiveness
of these avoidance measures in
minimizing Chinook salmon bycatch.
(D) A description of any amendments
to the terms of the SMP that were
approved by NMFS during the fishing
year in which the SMP was approved
and the reasons the amendments to the
SMP were made.
■ 9. Amend § 660.130 by revising
paragraphs (e) introductory text, (e)(5)
introductory text, and (e)(5)(i) and (iii)
and adding paragraph (g) to read as
follows:
§ 660.130 Trawl fishery—management
measures.
*
*
*
*
*
(e) Groundfish conservation areas
(GCAs). GCAs are closed areas, defined
at § 660.11, and using latitude and
longitude coordinates specified at
§§ 660.70 through 660.74, and § 660.76.
*
*
*
*
*
(5) Block area closures or BACs.
BACs, defined at § 660.111, are
applicable to vessels with groundfish
bottom trawl or midwater trawl gear on
board that is not stowed, per the
prohibitions in § 660.112(a)(5). When in
effect, BACs are areas closed to bottom
trawl and/or midwater trawl fishing. A
vessel operating, for any purpose other
than continuous transiting, in the BAC
must have prohibited trawl gear stowed,
as defined at § 660.111. Nothing in these
Federal regulations supersedes any state
regulations that may prohibit trawling
shoreward of the fishery management
area, defined at § 660.11. Prohibitions at
E:\FR\FM\23FER1.SGM
23FER1
Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations
§ 660.112(a)(5) do not apply under any
of the following conditions and when
the vessel has a valid declaration for the
allowed fishing:
(i) Trawl gear. Limited entry midwater
trawl gear and bottom trawl gear may be
used within the BAC only when it is an
VerDate Sep<11>2014
21:28 Feb 22, 2021
Jkt 253001
authorized gear type for the area and
season, and not prohibited by the BAC.
*
*
*
*
*
(iii) Multiple gears. If a vessel fishes
in a BAC with an authorized groundfish
trawl gear, it may fish outside the BAC
on the same trip using another
authorized trawl gear type for that area
PO 00000
Frm 00169
Fmt 4700
Sfmt 9990
10871
and season, provided it makes the
appropriate declaration change.
*
*
*
*
*
(g) Salmon bycatch. This fishery may
be closed through automatic action at
§ 660.60(d)(1)(iv) and (v).
[FR Doc. 2021–03204 Filed 2–22–21; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\23FER1.SGM
23FER1
]]>Agencies
[Federal Register Volume 86, Number 34 (Tuesday, February 23, 2021)]
[Rules and Regulations]
[Pages 10857-10871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03204]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 210205-0012]
RIN 0648-BJ50
Magnuson-Stevens Act Provisions; Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery; Salmon Bycatch Minimization
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements salmon bycatch minimization measures to
minimize incidental take of Endangered Species Act-listed salmon by
vessels in the Pacific Coast groundfish fishery. The rule establishes
additional management tools to minimize incidental Chinook and coho
salmon bycatch to keep fishery sectors within guidelines, establishes
rules to allow industry to access the Chinook salmon bycatch reserve,
and creates Chinook salmon bycatch closure thresholds for the trawl
fishery. This rule fulfills the terms and conditions of a 2017 National
Marine Fisheries Service Biological Opinion. This rule is intended to
promote the goals and objectives of the Magnuson-Stevens Fishery
Conservation and Management Act, the Pacific Coast Groundfish Fishery
Management Plan, and other applicable laws, including the Endangered
Species Act.
DATES: This final rule is effective March 25, 2021.
ADDRESSES: This rule is accessible via the Office of the Federal
Register website at https://www.federalregister.gov/. Background
information and documents, including a Biological Opinion and a
Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis
(IRFA) (Analysis), which addresses the statutory requirements of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), Executive Order 12866, and the Regulatory Flexibility Act
(RFA), are available at the NMFS West Coast Region website at https://www.fisheries.noaa.gov/region/west-coast and at the Pacific Fishery
Management Council's (Council) website at https://www.pcouncil.org.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to Barry A. Thom, Regional Administrator,
West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-
0070. Attn: Brian Hooper, and to www.reginfo.gov/public/do/PRAMain.
FOR FURTHER INFORMATION CONTACT: Brian Hooper, phone: (206) 526-6117,
or email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
The purpose of this final rule is to minimize interactions between
Endangered Species Act (ESA)-listed salmon species and Pacific Coast
groundfish fishing gear. On the West Coast, vessels fishing under the
Pacific Coast Groundfish Fishery Management Plan (FMP) use gear types
(e.g. midwater and bottom trawl, fixed gear, and hook-and-line) that
interact with listed Evolutionary Significant Units (ESUs) of coho and
Chinook salmon. The seasonality and geographic extent, including
fishing depth and north/south distribution of the different target
strategies and gear types, result in
[[Page 10858]]
different effects on different ESUs of these salmonids.
On December 11, 2017, NMFS issued a Biological Opinion on the
impact of the NMFS authorization of the groundfish fishery on ESA-
listed salmonids (see ADDRESSES for electronic access information). The
Incidental Take Statement (ITS) in the Biological Opinion sets forth
terms and conditions. Compliance with those terms and conditions
provides an exemption to the prohibition on take of listed species in
Section 9 of the ESA. The components of the Biological Opinion are
summarized in the proposed rule for 2019-20 Pacific Coast groundfish
harvest specifications and management measures (83 FR 47416; September
19, 2018). NMFS and the Council implemented a number of ITS terms and
conditions in the final rule for 2019-20 Pacific Coast groundfish
harvest specifications and management measures (83 FR 63970; December
12, 2018).
To address the remaining terms and conditions (2.b and 3.a), the
Council developed new incidental salmon bycatch minimization tools to
allow for timely inseason management of salmon bycatch (term and
condition 2.b). The Council also developed regulations regarding the
Chinook salmon bycatch reserve and its use (term and condition 3.a).
The Council evaluated the Biological Opinion and analyzed an action
to amend the regulations implementing the FMP to address ESA-listed
salmon bycatch in the fishery at its November 2018, April 2019,
September 2019, and November 2019 meetings. The Council recommended a
preferred alternative at its September 2019 meeting and took final
action in November 2019. The Council deemed the proposed regulations
consistent with and necessary to implement this action in a June 2,
2020, letter from Council Chairman Phil Anderson to NMFS Regional
Administrator Barry Thom. NMFS amends the regulations for the Pacific
Coast groundfish fishery at 50 CFR part 660 through this final rule to
incorporate the Council's recommendation and implement the terms and
conditions set forth in the 2017 NMFS Biological Opinion. Additional
discussion of the background and rationale for the Council's
development of changes to the regulations is included in the proposed
rule for this action (85 FR 66519; October 20, 2020) and is not
repeated here. Detailed information, including the supporting
documentation the Council considered while developing these
recommendations, is available at the Council's website, https://www.pcouncil.org.
Description of Existing Salmon Bycatch Management in the Pacific Coast
Groundfish Fishery
For purpose of analysis in the Biological Opinion, NMFS divided the
groundfish fishery into two groups or ``sectors'' for the purposes of
estimating and analyzing ESA-listed salmon bycatch. This rule will
refer to these groups as the whiting sector and non-whiting sector. The
whiting sector includes the Pacific Coast treaty Indian vessels that
target whiting, as well as non-tribal vessels in the mothership (MS)
Coop Program, Catcher/processor (C/P) Coop Program, and Pacific whiting
Shorebased individual fishing quota (IFQ) fishery that target whiting.
In this rule, the MS Coop Program, the C/P Coop Program and the Pacific
whiting IFQ fishery are referred to as ``components'' of the whiting
sector. The non-whiting sector includes the Pacific Coast treaty Indian
vessels that target Pacific coast groundfish species other than
whiting, as well as non-tribal vessels in the Shoreside trawl, fixed
gear, and recreational fisheries that are not accounted for in pre-
season salmon modeling. The recreational fisheries not accounted for in
pre-season salmon modeling are those occurring outside of the open
salmon seasons and the Oregon longleader fishery.
NMFS currently manages Chinook salmon bycatch to guidelines of
11,000 fish for the whiting sector, and 5,500 fish for the non-whiting
sector. Fishery sectors may access a 3,500 Chinook salmon bycatch
``reserve'' upon reaching their Chinook bycatch guideline. NMFS
automatically closes all groundfish fisheries once the guidelines plus
the reserve are reached (i.e., a total of 20,000 Chinook salmon are
caught as bycatch). For accounting purposes, Chinook salmon bycatch
accrues to either the whiting sector or non-whiting sector. NMFS
monitors Chinook salmon bycatch inseason and will (1) close the whiting
sector if that sector catches its guideline limit and the full reserve
amount, (2) close the non-whiting sector if that sector catches its
guideline limit and the full reserve amount, or (3) close either the
whiting or non-whiting sector if either sector reaches its guideline
limit when the other sector has already taken the reserve amount (83 FR
63970; December 12, 2018).
NMFS previously established two tools to manage Chinook and coho
salmon bycatch in the groundfish fishery through prior rulemakings.
These two tools are a Bycatch Reduction Area (BRA) for midwater trawl
vessels at the 200-fathom (fm) (366-meter (m)) depth contour (83 FR
63970, December 12, 2018), and Block Area Closures (BACs) for bottom
trawl vessels from shore to the 250-fm (457-m) depth contour (84 FR
63966, November 19, 2019) off Oregon and California. The Council may
recommend NMFS implement BRAs and BACs to minimize salmon bycatch
through routine management measures, as described in the FMP and
regulation at 50 CFR 660.60(c). Additional discussion of existing
salmon bycatch management in the groundfish fishery is included in the
proposed rule (85 FR 66519; October 20, 2020) and is not repeated here.
Additional Management Tools To Minimize ESA-Listed Salmon Bycatch
This final rule implements additional management tools beyond BRAs
and existing BACs, making these tools available to minimize incidental
Chinook and coho salmon bycatch to keep fishery sectors within
guidelines. These additional tools include: (1) BACs for midwater trawl
fisheries; (2) an extension of BACs seaward of the 250-fm (457-m) depth
contour for bottom trawl fisheries; and (3) a selective flatfish trawl
(SFFT) gear requirement for bottom trawl vessels. These additional
management tools apply only to non-tribal fisheries. NMFS expects the
tribal fishery managers may implement area management measures to
minimize salmon bycatch, as necessary.
When deciding whether to recommend BACs or SFFT gear requirements
for NMFS to implement, consistent with the FMP, the Council will
consider environmental impacts, including economic impacts, and public
comment via the Council process. Depending on the circumstances, NMFS
may implement BACs or SFFT gear requirements for a defined period of
time, for example, a few months or the remainder of the fishing year,
or maintain the closure for an indefinite period of time, for example,
until reopened by a subsequent action. NMFS may implement one or more
BACs or BACs with SFFT gear requirements, and the size of the BACs or
BACs with SFFT gear requirements can vary. A Federal Register document
will announce the geographic boundaries (described with coordinates in
codified regulations) of one or more BACs or BACs with SFFT gear
requirements, the effective dates, applicable gear/fishery
restrictions, as well as the purpose and rationale. NMFS will also
disseminate this information on BACs or BACs with SFFT gear
requirements through public
[[Page 10859]]
notices and posting on the West Coast Region website (see ADDRESSES for
electronic access information).
Block Area Closures for Midwater Trawl Fisheries
This final rule makes BACs available as a routine management
measure to minimize salmon bycatch in the limited entry midwater trawl
fisheries in the whiting and non-whiting sectors and prevent bycatch
from exceeding the guidelines. BACs are size variable spatial closures
bounded by latitude lines, defined at 50 CFR 660.11, and depth contour
approximations defined at 50 CFR 660.71 through 660.74 ((10 fm (18-m)
through 250 fm (457-m)), and Sec. 660.76 (700 fm (1,280-m)). Amendment
28 to the FMP (84 FR 63966; November 19, 2019) established BACs for
bottom trawl fisheries. This final rule will prohibit midwater trawl
fishing within the BAC boundaries. BACs could be implemented or
modified in the Exclusive Economic Zone (EEZ) off Oregon and California
for vessels using midwater trawl gear. BACs may be implemented in the
EEZ off Washington shoreward of the boundary line approximating the
250-fm (457-m) depth contour for vessels using midwater trawl gear. The
Council decided to not include extending the available BAC boundary for
vessels fishing with midwater trawl gear beyond 250-fm (457-m) off
Washington as part of its recommendation due to the limited operation
of midwater trawl vessels in that area.
The BAC tool will allow the Council to recommend and NMFS to
implement size variable area closures as a routine management measure
to address specific areas of high salmon bycatch rather than large
fixed closure areas (e.g., BRA). BACs will allow the midwater trawl
fishery to remain open in areas outside of the BACs.
This final rule does not implement specific individual BACs. BACs
cannot be used to close an area to any type of fishing other than
groundfish bottom or midwater trawling. This rule allows NMFS to close
or reopen BACs preseason (e.g., before the start of the fishing year or
before the May 15 start of the primary season for Pacific whiting
fishery) or inseason. The approach is consistent with existing
``routine inseason'' frameworks already in the FMP and regulations. If
good cause exists under the Administrative Procedure Act to waive
notice and comment, a single Federal Register document will announce
routine inseason BACs approved by NMFS.
Extension of Block Area Closures for Bottom Trawl Fisheries
This final rule allows NMFS to take routine inseason action to
implement BACs seaward of the boundary line approximating the 250-fm
(457-m) depth contour to the existing boundary line approximating the
700-fm (1,280-m) Essential Fish Habitat Conservation Area closure for
bottom trawl fisheries. The boundary line approximating the 700-fm
(1,280-m) depth contour is described at 50 CFR 660.76. This extension
of BACs only applies south of 46[deg]16'00'' N latitude (in the EEZ off
Oregon and California). This final rule allows NMFS to implement and
modify BACs, as a routine management measure, in open areas beyond the
250-fm (457-m) boundary in order to minimize incidental salmon bycatch.
While salmon bycatch rates are generally low in depths greater than
250-fm (457-m) for trawl fisheries (Section 2.15 of the Analysis--see
ADDRESSES), salmon distribution is known to extend into those depths.
Therefore, the Council recommended, and NMFS is implementing, this
extension so as to not constrain management of salmon bycatch in the
bottom trawl fishery to the boundary line approximating the 250-fm
(457-m) depth contour as the seaward boundary for a BAC. This final
rule does not implement individual BACs for bottom trawl fisheries.
Selective Flatfish Trawl Requirement for Bottom Trawl Fisheries
The use of SFFT gear is expected to reduce bycatch of Chinook
salmon (85 FR 66519; October 20, 2020). This final rule makes an SFFT
gear requirement available as a routine management measure to address
ESA-listed salmon bycatch in the groundfish bottom trawl fisheries. The
requirement to fish with SFFT gear could be used in conjunction with a
BAC. In other words, if the Council were to recommend and NMFS were to
implement a BAC for bottom trawl, it could allow bottom trawl vessels
to continue fishing in the BAC if vessels used SFFT gear. The Council
recommended, and NMFS is implementing, this action because it provides
flexibility for those vessels with SFFT gear.
This final rule does not implement individual SFFT gear
requirements. The Council could recommend SFFT gear requirements in the
future. This rule allows NMFS to implement SFFT requirements preseason
or inseason. If consistent with the FMP, Magnuson-Stevens Act, and
other applicable law, NMFS may approve and implement a Council
recommended SFFT gear requirement through a routine management measure,
as described in the FMP and regulation at 50 CFR 660.60(c).
This final rule makes changes to the declaration report to allow
NMFS Office of Law Enforcement (OLE) to sufficiently monitor and
enforce SFFT gear requirements. In the list of potential gear type or
sector/monitoring type declarations found at 50 CFR
660.13(d)(4)(iv)(A), NFMS added a declaration for ``Limited entry
selective flatfish trawl, shorebased IFQ'' and modified the existing
``Limited entry bottom trawl, shorebased IFQ, not including demersal
trawl'' declaration to clarify that selective flatfish trawl gear is
not included (i.e., ``Limited entry bottom trawl, shorebased IFQ, not
including demersal trawl or selective flatfish trawl'').
Rules for Access to the Chinook Salmon Reserve
This final rule establishes the rules or circumstances in which the
whiting and non-whiting sectors can access the Chinook salmon bycatch
reserve. As described in the Biological Opinion, access to the reserve
for additional Chinook salmon bycatch above the sector's guideline is
not guaranteed. The Council recommended that a sector may only access
the reserve if NMFS has implemented a management measure to minimize
Chinook salmon bycatch in that sector prior to it reaching its Chinook
salmon bycatch guideline. The Council recommended, and NMFS is
implementing, rules for accessing the reserve that hold the whiting and
non-whiting sectors accountable for minimizing bycatch.
The Council recommended, and NMFS is implementing, that the non-
whiting sector may only access the reserve if NMFS has implemented a
routine management measure (i.e. BRA, BAC, or a SFFT gear requirement)
to minimize Chinook salmon bycatch in the non-whiting sector prior to
it reaching its Chinook salmon bycatch guideline. This requirement may
be satisfied where NMFS has implemented a BAC for bottom trawl or
midwater trawl fisheries, or an SFFT gear requirement for bottom trawl
fisheries.
In contrast to the non-whiting sector, the Council recommended, and
NMFS is implementing, that each component of the whiting sector (i.e.
the MS Cooperative Program, C/P Cooperative Program, and the Pacific
whiting Shorebased IFQ fishery) may access the reserve only if NMFS has
implemented a management measure to minimize Chinook salmon bycatch for
that
[[Page 10860]]
component. This requirement may be satisfied through the implementation
of a BRA, BAC, or Salmon Mitigation Plan (SMP) for the applicable
component. Those vessels with an approved SMP will have access to the
reserve without further action by NMFS. The Council recommended, and
NMFS is implementing, that vessels not party to an SMP may access the
reserve only if NMFS has implemented a routine management measure
(e.g., BRA or BAC) to minimize Chinook salmon bycatch for those
vessels.
As part of the rules for access to the reserve, the Council
recommended, and NMFS is implementing, automatic fishery closure
thresholds. The Council may recommend a routine management measure
(e.g., BRA, BAC, or SFFT gear requirement) to minimize Chinook salmon
bycatch in the groundfish fishery. If NMFS has not implemented a
routine management measure to minimize Chinook salmon bycatch in the
non-whiting sector, the non-whiting sector will close once the sector
exceeds its Chinook salmon bycatch guideline of 5,500 Chinook salmon.
NMFS will automatically close the MS Coop Program, C/P Coop Program,
and the Pacific whiting IFQ fishery if NMFS has not implemented a
routine management measure to minimize Chinook salmon bycatch (i.e.
BRAs or BACs) for that specific component of the whiting sector prior
to the whiting sector exceeding its Chinook salmon bycatch guideline of
11,000 Chinook salmon. Those vessels with an approved SMP will be
exempt from the 11,000 Chinook salmon bycatch guideline closure
threshold condition that requires NMFS to close a specific component of
the whiting sector if NMFS has not implemented a routine management
measure to minimize Chinook salmon bycatch. Therefore, these vessels
will have access to the reserve without further action by NMFS. If the
whiting sector has caught 11,000 Chinook salmon, NMFS will close the
entire whiting sector, including those with an approved SMP, if the
non-whiting sector has caught its 5,500 Chinook salmon bycatch
guideline and 3,500 Chinook salmon from the bycatch reserve. Table 1
summarizes the automatic fishery closure thresholds that NMFS is
implementing as part of the reserve access rules.
Table 1--Summary of Fishery Closure Thresholds for Reserve Access Rules
------------------------------------------------------------------------
If Chinook salmon
Close: catch exceeds: And:
------------------------------------------------------------------------
Whiting sector................ 11,000 fish in (1) NMFS has not
the whiting implemented a
sector. routine management
measure to minimize
Chinook salmon
bycatch OR (2) The
non-whiting sector
has caught its 5,500
Chinook salmon
bycatch guideline
and 3,500 Chinook
salmon from the
bycatch reserve.
Non-whiting sector............ 5,500 fish in the (1) NMFS has not
non-whiting implemented a
sector. routine management
measure to minimize
Chinook salmon
bycatch OR (2) The
whiting sector has
caught its 11,000
Chinook salmon
bycatch guideline
and 3,500 Chinook
salmon from the
bycatch reserve.
------------------------------------------------------------------------
Salmon Mitigation Plans for Pacific Whiting Sector
This final rule allows a Pacific whiting sector cooperative or
group of vessels to develop a SMP for NMFS approval. The SMP is a
voluntary agreement by a cooperative or group of vessels in the Pacific
whiting fishery MS Coop Program, C/P Coop Program, or Pacific whiting
Shorebased IFQ fishery to manage Chinook salmon bycatch.
NMFS expects the SMP to promote reductions in Chinook salmon
bycatch relative to what would have occurred in the absence of an SMP
because the SMP will require bycatch minimization measures for all
vessels party to that SMP. Therefore, NMFS approval of an SMP will give
those vessels party to the SMP access to the Chinook salmon bycatch
reserve. Additionally, vessels that are party to an approved SMP will
have access to the reserve regardless of NMFS implementing other
inseason measures to minimize bycatch, such as BACs. Vessels that are
party to an approved SMP may fish into the reserve when the non-whiting
sector has not used the full reserve and NMFS has closed the whiting
sector on the basis that it has reached 11,000 Chinook bycatch.
Salmon Mitigation Plan Parties
Participants in the Pacific whiting Shorebased IFQ fishery may form
groups around common goals such as managing bycatch. MS and C/P vessels
receive permits from NMFS to operate as cooperatives. While it does not
receive permits from NMFS, the Shorebased Whiting Cooperative also
operates around common goals such as bycatch management. Under this
final rule, groups of vessels, or cooperatives, may create and submit
SMPs to NMFS for approval. Individual vessels are not eligible to
submit an SMP for approval. After NMFS approves an SMP, any changes in
the membership of vessels party to the SMP, including a vessel leaving
an SMP or adding a vessel to an SMP, must be submitted to NMFS for
approval though an SMP amendment.
In recommending the SMP measures, the Council provided, and NMFS is
implementing, an additional way to allow groups of Pacific whiting
vessels to access the reserve. The Council limited SMP submissions to
cooperatives or other groups of vessels because of concerns regarding
the enforceability of plans from individual whiting vessels. The
Council noted that other groups would have the potential to employ a
robust management system similar to that employed by the existing
whiting cooperatives. The Council did not recommend a minimum number of
vessels in an SMP. In order to improve the clarity of the regulations
and ensure the robust management and accountability system envisioned
by the Council, NMFS is implementing a three vessel minimum for an
approved SMP.
Salmon Mitigation Plan Required Contents
The SMP must detail how those vessels party to the SMP will avoid
and minimize Chinook salmon bycatch, including the tools they will
employ. The SMP must contain the names and signatures of the owner or
representative for each vessel that is party to the SMP. The SMP must
include the vessel name and United States Coast Guard (USCG) vessel
registration number (as given on USCG Form 1270) or state registration
number, if no USCG documentation, of each vessel that is party to the
SMP. The SMP must designate a representative to serve as the SMP point
of contact with NMFS and the Council, and to submit the SMP proposal,
any SMP amendments, and post-season report. The SMP must also contain a
compliance agreement in which all parties to the SMP agree to
[[Page 10861]]
voluntarily comply with all the provisions of the SMP.
Salmon Mitigation Plan Review and Approval
Consistent with the dates for MS and C/P cooperative permit and
agreement submission, applicants must submit proposed SMPs to NMFS
between February 1 and March 31. An SMP will expire on December 31 of
the year in which NMFS approved it. Given the timing of this
rulemaking, NMFS may offer flexibility by extending the SMP proposal
deadline for 2021. NMFS will announce any flexibility in the 2021 SMP
submission deadline via public notice.
NMFS will approve a proposed SMP if the proposal contains the
required contents and is reasonably expected to reduce Chinook salmon
bycatch. NMFS will disapprove a proposed SMP if it does not contain the
required contents, or is not reasonably expected to reduce Chinook
salmon bycatch. If NMFS makes an initial administrative determination
(IAD) to disapprove the proposed SMP, the applicant may appeal. Any
appeal under the SMP program will be processed by the NOAA Fisheries
National Appeals Office.
After the SMP is approved, the designated SMP representative must
submit any changes to the SMP, including any changes in which vessels
are party to the SMP, as an amendment to the SMP for approval by NMFS.
An amendment to an approved SMP may be submitted to NMFS at any time
during the year in which the SMP is valid. NMFS will review the
amendment to ensure it contains the required SMP contents. An amendment
to an approved SMP will be effective upon written notification of
approval by NMFS to the designated SMP representative. If NMFS makes an
IAD to disapprove the proposed SMP amendment, the applicant may appeal.
Any appeal under the SMP program will be processed by the NOAA
Fisheries National Appeals Office.
Inseason SMP Monitoring and Evaluation
Those vessels party to the SMP will commit to voluntarily comply
with the provisions of the SMP. The Council will evaluate Chinook
salmon bycatch levels and adherence to SMP provisions by those vessels
party to the SMP, as needed, during the inseason review process at
Council meetings. In recommending and implementing a routine management
measure to minimize Chinook salmon bycatch, the Council and NMFS will
specifically state whether the measure will apply to vessels party to
an approved SMP. The Council may choose to exempt vessels party to an
approved SMP from any additional salmon bycatch minimization measure
recommendation. If the SMP measures are not sufficient in minimizing
salmon bycatch, as determined by the Council during inseason review at
regular Council meetings, the Council could recommend that NMFS
implement additional salmon bycatch minimization measures (i.e., BRAs
or BACs) that apply to those vessels party to an approved SMP even if
those vessels had access to the reserve through the SMP. For example,
NMFS may implement a BAC for all whiting sector vessels, including
those with an approved SMP, if the whiting sector were approaching the
Chinook salmon bycatch guideline and the Council had determined SMP
measures were not sufficiently minimizing salmon bycatch.
By using the existing declarations and procedures, as well as a
list of vessels party to an approved SMP, NMFS OLE anticipates it can
sufficiently monitor for unauthorized fishing vessels within the
boundaries of a BAC that exempts vessels with an approved SMP.
Post-Season Reporting
The Council also recommended, and NMFS is implementing, an SMP
post-season report as a necessary component of the SMP measures. The
post-season report will allow NMFS and the Council to monitor and
assess Chinook salmon bycatch minimization efforts by vessels party to
the SMP. This post-season report, and specifically information on the
effectiveness of the bycatch avoidance measures, will also help NMFS
comply with term and condition 6.a.iii of the Biological Opinion. This
term and condition requires that NMFS produce an annual report
summarizing bycatch reduction measures used and their effectiveness.
The designated SMP representative will provide an annual post-
season report to the Council and NMFS no later than March 31 of the
year following the year in which the SMP was valid. The report will
describe the group's use of Chinook salmon bycatch avoidance measures
and an evaluation of the effectiveness of those measures. The report
will also describe any amendments to the terms of the SMP that NMFS
approved during that fishing year and the reasons that the group
amended the SMP.
Pacific whiting cooperatives currently produce an annual
cooperative report documenting the cooperative's catch, bycatch data,
and any other significant activities undertaken by the cooperative
during the year. For efficiency, the SMP post-season report could be
combined with this annual cooperative report.
Trawl Fishery Closures in Response to Chinook Salmon Bycatch
This final rule establishes automatic actions that will close all
trawl fisheries if Chinook salmon bycatch exceeds 19,500 fish in the
whiting and non-whiting sectors, and will close non-whiting trawl
fisheries if Chinook salmon bycatch exceeds 8,500 fish in the non-
whiting sector. The closures ensure that 500 Chinook salmon are
available for bycatch in fixed gear and select recreational fisheries,
so those fisheries can continue to operate in years of high Chinook
salmon bycatch in the trawl fishery. For catch accounting purposes, the
Chinook salmon bycatch from Pacific Coast treaty Indian fisheries will
count towards the applicable whiting or non-whiting sector bycatch
guideline. However, Pacific Coast treaty Indian fisheries will not
close until the existing 20,000 Chinook salmon total fishery limit is
reached.
This final rule does not change any of the existing closure
thresholds established in the 2019-2020 Pacific Coast groundfish
harvest specifications and management measures (83 FR 63970; December
12, 2018). The closure thresholds (bycatch guideline plus reserve) for
the whiting and non-whiting sectors will remain at 14,500 Chinook
salmon for the whiting sector and 9,000 Chinook salmon for the non-
whiting sector, and a total closure of all groundfish fisheries at
20,000 Chinook salmon. The Council noted the existing fishery closure
thresholds and inseason processes would be sufficient to manage to the
Chinook salmon bycatch guidelines. However, the Council also recognized
the importance of protecting fixed-gear and recreational fisheries from
potential closure in years of high non-whiting trawl Chinook salmon
bycatch. Therefore, the Council recommended, and NMFS is implementing,
closure thresholds for trawl fisheries. Table 2 summarizes the closure
thresholds for trawl fisheries implemented as a result of this final
rule.
Table 2--Summary of Fishery Closures To Implement Trawl Fishery
Thresholds
------------------------------------------------------------------------
If Chinook salmon catch
Close: exceeds:
------------------------------------------------------------------------
Non-whiting trawl fisheries............... 8,500 fish in the non-
whiting sector.
[[Page 10862]]
All trawl fisheries....................... 19,500 fish in the whiting
and non-whiting sectors.
------------------------------------------------------------------------
Summary of Groundfish Fishery Closures in Response to Chinook Salmon
Bycatch
Table 3 summarizes the groundfish fishery closures in response to
Chinook salmon bycatch. The closures described in the table do not
apply to Pacific Coast treaty Indian fisheries except for the existing
threshold closing all groundfish fisheries, including Pacific Coast
treaty Indian fisheries, if Chinook salmon bycatch in the groundfish
fishery exceeds 20,000 fish. However, for catch accounting purposes,
the Chinook salmon bycatch from Pacific Coast treaty Indian fisheries
will count towards the applicable whiting or non-whiting sector bycatch
guideline. NMFS will close each component of the whiting sector
(Pacific whiting IFQ fishery, MS Coop Program and C/P Coop Program)
when Chinook salmon bycatch exceeds 11,000 Chinook salmon if NMFS has
not implemented a routine management measure (i.e., BRA or BAC)) to
minimize Chinook salmon bycatch for that individual component of the
whiting sector. The whiting sector closure at 11,000 Chinook salmon
will not apply to those vessels that are parties to an approved SMP,
unless the non-whiting sector has caught the entire 3,500 Chinook
salmon bycatch reserve.
Table 3--Summary of Groundfish Fisheries Closures due to Chinook Salmon Bycatch
----------------------------------------------------------------------------------------------------------------
If Chinook salmon
Implemented with this final rule? Close: bycatch exceeds: And:
----------------------------------------------------------------------------------------------------------------
Yes (reserve access rules)......... Whiting sector........ 11,000 fish in the (1) NMFS has not
whiting sector. implemented a routine
management measure to
minimize Chinook salmon
bycatch OR (2) The non-
whiting sector has caught
its 5,500 Chinook salmon
bycatch guideline and
3,500 Chinook salmon from
the bycatch reserve.
No; previously established (83 FR Whiting sector........ 14,500 fish in the The non-whiting sector has
63970; December 12, 2018). whiting sector. not accessed the Chinook
salmon bycatch reserve.
Yes (reserve access rules)......... Non-whiting sector.... 5,500 fish in the non- (1) NMFS has not
whiting sector. implemented a routine
management measure to
minimize Chinook salmon
bycatch OR (2) The whiting
sector has caught its
11,000 Chinook salmon
guideline and 3,500
Chinook salmon from the
bycatch reserve.
Yes (trawl fishery closures)....... Non-whiting trawl 8,500 fish in the non- ...........................
fisheries (midwater whiting sector.
trawl and bottom
trawl fisheries under
the Shorebased IFQ
Program).
No; previously established (83 FR Non-whiting sector.... 9,000 fish in the non- The whiting sector has not
63970; December 12, 2018). whiting sector. accessed the Chinook
salmon bycatch reserve.
Yes (trawl fishery closures)....... All trawl fisheries 19,500 fish in the ...........................
(whiting sector and whiting and non-
non-whiting trawl whiting sector.
fisheries).
No; previously established (83 FR All groundfish 20,000 fish in the ...........................
63970; December 12, 2018). fisheries. whiting and non-
whiting sector.
----------------------------------------------------------------------------------------------------------------
Definition Correction
This final rule makes a minor technical correction related to the
definition of ``Mothership Coop Program'' at Sec. 660.111. An
inaccurate amendatory instruction (80 FR 77271, December 14, 2015)
resulted in a duplicative definition with an incorrect title. This rule
removes the definition for ``Mothership Coop Program or MS Coop
Program'', and maintains the definition for ``Mothership (MS) Coop
Program or MS sector'' at Sec. 660.111. This change is not
substantive, as it removes a redundant definition.
Comments and Responses
NMFS solicited public comment on the proposed salmon bycatch
minimization measures (85 FR 66519; October 20, 2020). The comment
period ended November 19, 2020. NMFS received seven comment letters:
three from industry groups, one from a non-governmental organization,
and three from private citizens. One letter noted several small errors
or inconsistences in the preamble to the proposed rule. NMFS has
addressed those in a separate section below, Clarifications and
Corrections to the Preamble of the Propose Rule. The comment letters
are available in their entirety from NMFS (see ADDRESSES) or at the
following web address: https://www.regulations.gov/docket?D=NOAA-NMFS-2019-0063.
Comment 1: Three private citizens and one non-governmental
organization were supportive of the proposed salmon bycatch
minimization measures due to the potential benefits for salmon
populations and other species like Southern Resident killer whales.
Response 1: NMFS agrees and is implementing the proposed measures
with the final rule.
Comment 2: The proposed rule lacks information regarding the
bycatch guidelines and projections for coho salmon bycatch.
Response: The effects of the rule on Chinook and coho salmon
overlap. Therefore, NMFS examined these species together in the
proposed rule analysis. This rule does not change the coho salmon
guidelines. As such, NMFS did not discuss these details in the
[[Page 10863]]
proposed rule. NMFS manages coho salmon bycatch to guidelines of 474
fish for the whiting sector, and 560 fish for the non-whiting sector.
These guidelines were established in the 2017 NMFS Biological Opinion.
For accounting purposes, coho salmon bycatch accrues to either the
whiting sector or non-whiting sector. NMFS monitors coho salmon bycatch
inseason.
Comment 3: NMFS did not mention any significant alternatives to the
bycatch minimization measures in the IRFA of the proposed rule.
Response: Under the RFA, NMFS is required to consider reasonable
regulatory alternatives that would minimize the economic impact on
affected small entities. NMFS made this consideration, and as
documented in the proposed and final rules, concluded there are no
significant alternatives to the final rule that would accomplish the
stated objectives in a way that would reduce economic impacts of the
final rule on small entities.
Comment 4: This rule should put further restrictions on bottom
trawling to protect Chinook and coho salmon habitat.
Response: This rule fulfills the terms and conditions of a 2017
NMFS Biological Opinion. This rule establishes additional management
tools such as extending BACs for bottom trawl fisheries, which may
benefit salmonid habitat. Further measures to protect salmonid habitat
are beyond the scope of this action.
Comment 5: Pacific whiting cooperatives should be allowed to
incorporate the SMP into the cooperative agreement, as well as the SMP
post-season report into the annual cooperative report.
Response: NMFS agrees and will work with the cooperatives to
implement this administrative efficiency.
Comment 6: Two industry groups expressed support for implementation
of the proposed SMP as a mechanism for groups in the whiting sector to
access the Chinook salmon reserve.
Response: NMFS agrees and is implementing the proposed measures
with the final rule.
Comment 7: Two industry groups expressed concerns with a provision
of the proposed rule that ``no vessel may join or leave an SMP after it
is approved''. Under the proposed rule, those vessels party to the SMP
would be committed to follow the SMP provisions for the year in which
it is approved. The industry groups contend this provision is
unnecessarily restrictive, would limit flexibility, and potentially
hinder fishery performance. First, they argue that whiting cooperatives
are currently allowed under their cooperative agreements and
cooperative permits to change vessels participating in the cooperative
by submitting an amended cooperative agreement to NMFS. Catcher-
processor limited entry trawl permits are also transferable. These
flexibilities provide opportunities for fishery participants and
cooperatives to optimize participation in the fishery. Second, the
industry groups contend unforeseen circumstances might occur requiring
a vessel to leave a cooperative or an SMP. This could include a vessel
ownership change or cooperative actions against a vessel that is not
meeting the requirements of the cooperative. The industry groups
recommended that any changes in vessels party to the SMP could occur
through an SMP amendment.
Response: NMFS specifically sought comment on this provision in the
proposed rule. NMFS proposed this provision to: (1) Maximize the
potential salmon conservation benefits of an SMP; (2) prevent vessels
that did not follow the SMP provisions throughout the year from
receiving the benefit of access into the reserve on the basis of the
SMP; and (3) ensure NMFS can sufficiently monitor and enforce a BAC
from which vessels party to an approved SMP are exempt.
NMFS agrees with the commenter that the provision could hinder
flexible salmon bycatch management in the whiting sector. As such, NMFS
did not include this provision in this final rule. NMFS agrees an SMP
amendment is an appropriate avenue to document and approve membership
changes. The SMP amendment process will give NMFS means to track
current SMP membership and ensure NMFS can sufficiently monitor and
enforce access to a BAC from which vessels party to an approved SMP are
exempt.
If vessels were to join an SMP after it was approved (i.e., mid-
fishing year) and receive benefits such as access to salmon bycatch
reserve or exemption from further bycatch management requirements, it
may be inequitable for the vessels that had been following the SMP
provisions throughout the year. However, because the SMP group self-
selects its members, it would be the group's choice to make membership
changes equitable. While maximum salmon bycatch minimization benefits
may be realized when vessels follow bycatch minimization requirements
in an SMP for a full fishing year, partial year participation will
still provide benefits for salmon bycatch minimization purposes.
NMFS agrees with the need for those vessels party to the SMP to
self-manage membership, including the removal of a vessel that is not
following the SMP provisions. A vessel leaving an SMP mid-fishing year
would not present equity issues, as that vessel would not have
automatic access to the reserve once it leaves the SMP. NMFS will be
able to track vessels party to the SMP through the SMP amendment
process. Per the reserve access rules in this final rule, a salmon
bycatch minimization action would need to be implemented prior to a
vessel not party to an SMP having access to the reserve. This would
provide the conservation benefits for Chinook salmon envisioned by the
Council in recommending the reserve access rules.
Comment 8: Voluntary, industry-based areas closures will be more
timely and effective than BACs to manage salmon bycatch. Voluntary
industry closures are based upon near real-time data and are adaptable
to meet current conditions on the fishing grounds. In contrast, a BAC
would be implemented on a much slower time frame and could be
inconsistent with current fishing conditions. Due to this lag, a BAC
could close a fishing area where salmon bycatch is no longer occurring.
Response: NMFS agrees that industry based area closures may be more
timely and effective than BACs. NMFS encourages industry to continue
such voluntary measures in order to reduce the need for regulatory
area-based closures like BACs. Per the 2017 NMFS Biological Opinion,
NMFS must manage the fishery to the bycatch guidelines. The Council
recommended, and NMFS agrees, that BACs would be a useful management
tool to have available should mandatory salmon bycatch minimization
measures be necessary.
Comment 9: The extension of BACs deeper than 250 fm is not needed
because a long history of fishery data clearly indicates that salmon
incidental catch deeper than 250 fm is de minimis.
Response: Salmon bycatch rates are generally low in depths greater
than 250 fm (457 m) for trawl fisheries (Section 2.15 of the Analysis--
see ADDRESSES). However, salmon distribution is known to extend into
those depths. The extension of BACs for bottom trawl fisheries in this
final rule would allow NMFS to implement and modify BACs in areas where
salmon bycatch may occur in order to keep the fishery sector within
bycatch guidelines.
Comment 10: NMFS will need to enforce BACs which restrict access
for vessels without an approved SMP. In addition to VMS tracking and on
the water patrols, NMFS could inform the Pacific whiting cooperatives
to alert vessels under their structure that do not
[[Page 10864]]
have an approved SMP to cease fishing operations within the BAC. The
documentation of which vessels are party to an SMP would guide this
effort.
Response: NMFS agrees that documentation of vessels that are party
to an SMP is critical to the enforcement of BACs that allow access for
vessels with an SMP. As such, NMFS will require the vessel name and
USCG vessel registration number (as given on USCG Form 1270) or state
registration number, if no USCG documentation, of each vessel that is
party to the SMP be included in the SMP proposal.
Comment 11: Two commenters noted the need for strong
implementation, monitoring, reporting of salmon bycatch minimization
measures, including the SMP. In order to maximize the salmon
conservation benefits of an SMP, one commenter noted the need for
regular in-season and post-season reporting of salmon bycatch, as well
as the implementation of effective SMP bycatch reduction tools.
Response: NMFS agrees that strong reporting and monitoring are
needed for effective salmon bycatch management. In the SMP post-season
report NMFS will require the SMP representative to provide an
evaluation of the effectiveness of their avoidance measures in
minimizing Chinook salmon bycatch. Salmon bycatch will continue to be
monitored by NMFS throughout the fishing year as is required by the
2017 Biological Opinion. Salmon bycatch data is also publically
available online in near real-time through the Pacific Fisheries
Information Network's Reports Dashboard at https://reports.psmfc.org/pacfin. Additionally, the Council reviews salmon bycatch information at
each Council meeting and may recommend routine management measures to
NMFS, if necessary to keep fishery sectors within the bycatch
guidelines. NMFS agrees the bycatch tools in the SMP need effective
implementation. NMFS noted in the proposed rule that it expects the SMP
to promote reductions in Chinook salmon bycatch relative to what would
have occurred in the absence of an SMP because the SMP will require
bycatch minimization measures for all vessels party to that SMP. This
reduction would occur because the SMP will require bycatch minimization
measures for all vessels party to that SMP. In order to clarify how an
SMP would be evaluated, consistent with the intent of the Council, NMFS
has included in the final rule an additional SMP approval criteria that
the SMP must reasonably be expected to reduce Chinook salmon bycatch.
Comment 12: One commenter stated the fishery closure authority
provisions previously implemented to fulfill requirements of the 2017
NMFS Biological Opinion are not consistent with guidance and direction
provided by the Council to the agency in developing the opinion. The
commenter noted the Council did not include, nor think necessary, the
closure authorities independently developed by NMFS.
Response: In this final rule, NMFS is not modifying the automatic
fishery closure mechanisms previously implemented through the final
rule to implement harvest specifications and management measures for
the 2019-2020 biennium (83 FR 63970; December 12, 2018). As such, this
comment is outside the scope of this action.
Changes From the Proposed Rule
In response to public comments received and in order to provide
clarity to the new requirements, NMFS is making four changes to the
action as proposed previously.
As detailed in the Comments and Responses section, NMFS will
require the vessel name and USCG vessel registration number (as given
on USCG Form 1270) or state registration number, if no USCG
documentation, of each vessel that is party to the SMP be included in
the SMP proposal or any SMP amendment. This requirement is needed to
sufficiently enforce BACs that allow access for vessels with an SMP.
NMFS is also including a requirement that the SMP proposal include a
mailing address for the SMP representative. This will allow NMFS to
send the SMP representative correspondence through the mail. These
requirement do not change the estimated public reporting burden for the
submission of an SMP.
As detailed in the Comments and Responses section, NMFS is not
including in the final rule a provision of the proposed rule that ``no
vessel may join or leave an SMP after it is approved''. Under that
provision, those vessels party to the SMP would have been committed to
follow the SMP provisions for the year in which it is approved. Through
this final rule, NMFS will allow vessels to join or leave an SMP after
it is approved. The SMP representative must submit any membership
changes through the SMP amendment process. This change will provide
industry with flexibility to manage salmon bycatch and self-select its
members, while still providing the conservation benefits for salmon
envisioned by the Council in recommending the reserve access rules. The
SMP amendment process will allow NMFS to track current SMP membership
and ensure NMFS can sufficiently monitor and enforce access to a BAC
from which vessels with an approved SMP are exempt.
As detailed in the Comments and Responses section, the proposed
rule lacked clarity on how the SMP would be evaluated. In order to meet
the objective of the SMP to minimize salmon bycatch, consistent with
the Council's intent for this action, NMFS has clarified in the final
rule that the SMP must reasonably be expected to reduce Chinook salmon
bycatch.
Clarifications and Corrections to the Preamble of the Proposed Rule
The preamble to the proposed rule (85 FR 66519; October 20, 2020)
on page 66521 was unclear in describing the ``whiting sector'' and
``non-whiting sector'' with respect to Pacific Coast treaty Indian
vessels. The final rule revised these descriptions to clarify that
vessels that participate in the Pacific Coast treaty Indian groundfish
fisheries are not part of the MS, C/P, or IFQ programs.
Table 2 of the preamble to the proposed rule (page 66523)
summarized the closure thresholds for reserve access rules. Table 2
incorrectly stated a closure condition for the non-whiting sector. This
table, Table 1 of this final rule, has been revised to clarify that the
non-whiting sector will close at 5,550 Chinook salmon if the whiting
sector has caught its 11,000 Chinook salmon bycatch guideline and 3,500
Chinook salmon from the bycatch reserve.
In the preamble to the proposed rule NMFS incorrectly stated on
page 66523 that SFFT gear requirements were an example of a routine
management measure to minimize salmon bycatch in the whiting sector.
Whiting trawlers do not use SFFT gear. Therefore, this final rule omits
reference to SFFT gear requirements for the whiting sector.
The preamble to the proposed rule on page 66523 inadvertently
omitted a provision for closing the whiting sector due to Chinook
salmon bycatch. The preamble to the proposed rule stated ``the entire
whiting sector, including those with an approved SMP, would close if
the non-whiting sector has caught its 5,500 Chinook salmon bycatch
guideline and 3,500 Chinook salmon from the bycatch reserve''. As
clarified in the final rule, this fishery closure will only occur if
the whiting sector has caught 11,000 Chinook salmon.
Classification
NMFS is issuing this rule pursuant to section 304(b)(1)(A) and
305(d) of the Magnuson-Stevens Act, which provides
[[Page 10865]]
specific authority and procedure for implementing this action. Section
304(b)(1)(A) authorizes NMFS to implement a rule deemed by the Council
under section 303(c) to implement regulatory amendments. Pursuant to
MSA Section 305(d), this action is necessary to carry out a minor
technical correction because of an error in the regulatory text. The
NMFS Assistant Administrator has determined that this final rule is
consistent with the FMP, 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 12866.
NMFS prepared a final regulatory flexibility analysis (FRFA) under
section 604 of the RFA, which incorporates the IRFA. A summary of any
significant issues raised by the public comments in response to the
IRFA, NMFS's responses to those comments, and a summary of the analyses
completed to support the action are addressed below. NMFS also prepared
a RIR for this action. A copy of the RIR and IRFA is available from
NMFS (see ADDRESSES for electronic access information), and per the
requirements of 5 U.S.C. 604(a), the text of the FRFA follows:
As applicable, section 604 of the RFA requires an agency to prepare
a FRFA after being required by that section or any other law to publish
a general notice of proposed rulemaking and when an agency promulgates
a final rule under 5 U.S.C. 553. The following paragraphs constitute
the FRFA for this action.
This FRFA incorporates the IRFA, a summary of any significant
issues raised by the public comments, NMFS's responses to those
comments, and a summary of the analyses completed to support the
action. Analytical requirements for the FRFA are described in the RFA,
section 604(a)(1) through (6). FRFAs contain:
1. A statement of the need for, and objectives of, the rule;
2. A statement of the significant issues raised by the public
comments in response to the IRFA, a statement of the assessment of the
agency of such issues, and a statement of any changes made in the
proposed rule as a result of such comments;
3. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
response to the proposed rule, and a detailed statement of any change
made to the proposed rule in the final rule as a result of the
comments;
4. A description and an estimate of the number of small entities to
which the rule will apply, or an explanation of why no such estimate is
available;
5. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
6. A 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, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
The ``universe'' of entities to be considered in a FRFA generally
includes only those small entities that can reasonably be expected to
be directly regulated by the action. If the effects of the rule fall
primarily on a distinct segment of the industry, or portion thereof
(e.g., user group, gear type, geographic area), that segment will be
considered the universe for purposes of this analysis.
In preparing a FRFA, an agency may provide either a quantifiable or
numerical description of the effects of a rule (and alternatives to the
rule), or more general descriptive statements, if quantification is not
practicable or reliable.
Need for and Objective of This Final Rule
The need for and objective of this final rule is described above in
the Background section of the preamble and not repeated here.
Summary of Significant Issues Raised During Public Comment
NMFS published a proposed rule to implement salmon bycatch
minimization measures for the Pacific coast groundfish fishery on
October 20, 2020 (85 FR 66519). An IRFA was prepared and summarized in
the Classification section of the preamble to the proposed rule. The
comment period on the proposed rule ended on November 19, 2020. NMFS
received seven comment letters on the proposed rule. One comment was
received specific to the IRFA. The comment incorrectly asserted NMFS
did not consider any significant alternatives to the bycatch
minimization measures in the IRFA. As documented in the proposed and
final rule, NMFS made this consideration and concluded there are no
significant alternatives. This comment is discussed further in the
Comments and Responses section above. This comment did not raise
significant issues relative to the measures in the proposed rule. The
Chief Counsel for Advocacy of the SBA did not file any comments on the
IRFA or the proposed rule.
A Description and an Estimate of the Number of Small Entities to Which
the Rule Will Apply
The RFA (5 U.S.C. 601 et seq.) requires government agencies to
assess the effects that regulatory alternatives would have on small
entities, defined as any business/organization independently owned and
operated and not dominant in its field of operation (including its
affiliates). A small harvesting business has combined annual receipts
of $11 million or less for all affiliated operations worldwide. A small
fish-processing business is one that employs 750 or fewer persons for
all affiliated operations worldwide.
For marinas and charter/party boats, a small business is one that
has annual receipts not in excess of $7.5 million. A wholesale business
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. A nonprofit organization is
determined to be ``not dominant in its field of operation'' if it is
considered small under one of the following SBA size standards:
environmental, conservation, or professional organizations are
considered small if they have combined annual receipts of $15 million
or less, and other organizations are considered small if they have
combined annual receipts of $7.5 million or less.
The RFA defines small governmental jurisdictions as governments of
cities, counties, towns, townships, villages, school districts, or
special districts with populations of less than 50,000.
This final rule will directly affect all commercial groundfish
vessels and select recreational groundfish vessels. In the C/P sector,
all three permit owners (owning the collective 10 permits) self-
reported as large entities. For the MS sector, of the 31 MS/Catcher
Vessel endorsed permits, 25 permits and their associated vessels are
registered as small entities. Nine permits held by seven entities self-
reported as large, with one entity owning three permits. In order to
fish in the shoreside whiting or midwater trawl sector, a limited entry
trawl endorsed permit is required. Of the 164 limited entry trawl
endorsed
[[Page 10866]]
permits (excluding those with a C/P endorsement), 110 permit owners
holding 129 permits classified themselves as small entities. The
average small entity owns 1.17 permits with 15 entities owning more
than one permit. However, given that between 23 and 26 vessels have
participated in the shoreside whiting fishery in the last three years
and the same range of vessels in the midwater rockfish fisheries, this
is an overestimate of the potential impacted number of small entities.
Additionally, it is likely some entities own more than one vessel. From
2016-2018, there were 67-74 bottom trawl vessels.
Since 2016-18, there have been 17 to 23 fixed gear participants in
the IFQ fishery, 136 to 144 in the limited entry fixed gear fisheries,
and 746 to 769 in the open access fisheries. Of those fixed gear IFQ
participants, there have been between 17 and 19 permits used to land
groundfish. In 2018, an estimated 13 of these trawl endorsed permits
were classified as small entities (based on 2019 declarations). In
2019, 208 of the 239 fixed gear endorsed limited entry permits
(required to fish in the primary or limited entry fixed gear sectors)
reported as small entities. For the permits that reported as large
entities, one entity owned three permits and three owned two permits.
All open access vessels are assumed to be small entities, with ex-
vessel revenues for all landings averaging $8,966 in 2018.
For the recreational sector, all charter businesses are designated
as small entities. The portion of the recreational fishery that will be
affected by this action are those groundfish trips occurring outside of
the salmon season. Therefore, the estimates provided here may be an
overestimate of the actual number of entities or trips that may be
affected depending on when the salmon seasons are set and when a
closure could occur. For Washington, there were 55 unique charter
vessels that took 20,833 bottomfish trips in 2018. In 2018, there were
48 charter vessels that took an estimated 19,208 angler trips in
Oregon. However, this estimate does not include guide boats that do not
have an official office. In California, there were approximately 290
vessels targeting bottomfish or lingcod, according to logbook
submissions, that took an estimated 504,118 angler trips.
The economic effects of the final rule are described in Section 4.6
of the Analysis (see ADDRESSES). The economic effects of the additional
management tools to minimize ESA-listed salmon bycatch will depend on
the extent and timing of the measure that is implemented. It is likely
that there will be some negative economic impact on small entities with
the implementation of a BAC or SFFT gear requirement. Vessels will
potentially have to move from closed fishing locations, which may
decrease the effectiveness at accessing target species.
Cooperatives or other groups of vessels in the Pacific whiting C/P,
MS, and shoreside IFQ sectors may incur additional administrative costs
associated with developing and submitting the SMP and the post-season
report. Because we estimate the reporting burden to average 10 hours
per response for the SMP proposal, and 8 hours per response for the SMP
post-season report, we do not expect the reporting requirement to
impact profitability of operations for small or large entities.
Economic impacts to small entities affected by the trawl closure
thresholds will depend on the time that the automatic closure points
were reached. Table 3.15 of the Analysis details the potential
estimated losses for fisheries by month. If the trawl sectors were to
unexpectedly close the recreational sectors in November, this could be
a loss of $27.4 million in revenue.
There are no direct costs associated with the rules for access to
the reserve. However, implementation of any inseason bycatch
minimization measures prior to a sector accessing the reserve would
have associated economic impacts. For example, if there were unexpected
high bycatch in the non-whiting sector, NMFS would have to implement
bycatch minimization measures such as a BAC prior to that sector
accessing the reserve. The associated impacts would be those described
above for the additional bycatch minimization tools.
Recordkeeping, Reporting, and Other Compliance Requirements
Additional reporting or recordkeeping may be required of the
regulated entities under the final action. Cooperatives or other groups
of Pacific whiting vessels will have new reporting requirements if they
chose to submit an SMP to NMFS for approval. The cooperatives or other
groups of vessels with an approved SMP will also be required to submit
a post-season report to the Council and NMFS. The final rule adds a
declaration to the suite of available declarations to allow NMFS OLE to
sufficiently monitor and enforce SFFT gear requirements. This change
will have negligible impact on a vessel's reporting burden.
Description of Significant Alternatives to This Final Rule That
Minimize Economic Impacts on Small Entities
There are no significant alternatives to the final rule that would
accomplish the stated objectives in a way that would reduce economic
impacts of the final rule on small entities. This action allows NMFS to
exempt any take of listed species from the prohibitions that would
otherwise be imposed by Section 9 of the ESA by complying with the
terms and conditions in the 2017 NMFS Biological Opinion, which specify
certain measures for the Council and NMFS to develop and implement, or
consider to minimize bycatch of ESA-listed Chinook and coho salmon. For
that reason, there are no significant alternatives to the action
evaluated in this FRFA.
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, a small entity compliance guide (the guide)
was prepared. Copies of this final rule are available from the West
Coast Regional Office (see ADDRESSES), and the guide will be included
in a public notice sent to all members of the groundfish email group.
To sign-up for the groundfish email group, input your email address and
name and then click on the ``sign up'' button on the following website:
https://lp.constantcontactpages.com/su/koE8GSV/groundfish. The guide
and this final rule will also be available on the West Coast Region's
website (see ADDRESSES) and upon request.
Paperwork Reduction Act Collection-of-Information Requirements
This final rule contains a new collection-of-information
requirement subject to review and approval by OMB under the Paperwork
Reduction Act (PRA) (OMB Control Number 0648-0794). This rule creates
new requirements for the submission of SMPs and post-season reports.
The following public reporting burden estimates for the submission of
SMPs and post-season reports under this final rule include the time for
reviewing instructions, searching existing data
[[Page 10867]]
sources, gathering and maintaining the data needed, and completing and
reviewing the collection information. Public reporting burden is
estimated to average 10 hours per response for the SMP proposal, 3
hours per response for an SMP amendment, 6 hours per response for an
administrative appeal of a disapproved SMP, and 8 hours per response
for the SMP post-season report.
We invite the general public and other Federal agencies to comment
on proposed and continuing information collections, which helps us
assess the impact of our information collection requirements and
minimize the public's reporting burden. Written comments and
recommendations for this information collection should be submitted at
the following website: www.reginfo.gov/public/do/PRAMain. Find this
particular information collection by using the search function and
entering the title of the collection, ``Pacific Coast Groundfish Salmon
Bycatch Minimization''.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a 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 OMB Control Number.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 10, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
660 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. Amend Sec. 660.11, in the definition of ``Conservation area(s)'',
by revising the introductory text to paragraph (1) to read as follows:
Sec. 660.11 General definitions.
* * * * *
Conservation area(s) * * *
(1) Groundfish Conservation Area or GCA means a conservation area
created or modified and enforced to control catch of groundfish or
protected species. Regulations at Sec. 660.60(c)(3) describe the
various purposes for which NMFS may implement certain types of GCAs
through routine management measures. Regulations at Sec. 660.70
further describe and define coordinates for certain GCAs, including:
Yelloweye Rockfish Conservation Areas; Cowcod Conservation Areas;
waters encircling the Farallon Islands; and waters encircling the
Cordell Banks. GCAs also include depth-based closures bounded by lines
approximating depth contours, including Bycatch Reduction Areas or
BRAs, or bounded by depth contours and lines of latitude, including,
Block Area Closures or BACs, and Rockfish Conservation Areas or RCAs,
which may be closed to fishing with particular gear types. BRA, BAC,
and RCA boundaries may change seasonally according to conservation
needs. Regulations at Sec. Sec. 660.71 through 660.74, and Sec.
660.76 define depth-based closure boundary lines with latitude/
longitude coordinates. Regulations at Sec. 660.11 describe commonly
used geographic coordinates that define lines of latitude. Fishing
prohibitions associated with GCAs are in addition to those associated
with other conservation areas.
* * * * *
0
3. Amend Sec. 660.12 by adding paragraph (a)(19) to read as follows:
Sec. 660.12 General groundfish prohibitions.
* * * * *
(a) * * *
(19) Fish for, or take and retain, any species of groundfish,
during salmon bycatch fishery closures described in Sec.
660.60(d)(1)(iv) and (v), or fail to comply with the salmon bycatch
management provisions described in Sec. 660.60(i).
* * * * *
0
4. Amend Sec. 660.13 by:
0
a. Revising paragraph (d)(4)(iv)(A)(10);
0
b. Republishing paragraph (d)(4)(iv)(A)(11);
0
c. Revising paragraphs (d)(4)(iv)(A)(12) through (30); and
0
d. Adding paragraph (d)(4)(iv)(A)(31).
The revisions, republication, and addition read as follows:
Sec. 660.13 Recordkeeping and reporting.
* * * * *
(d) * * *
(4) * * *
(iv) * * *
(A) * * *
(10) Limited entry bottom trawl, shorebased IFQ, not including
demersal trawl or selective flatfish trawl,
(11) Limited entry demersal trawl, shorebased IFQ,
(12) Limited entry selective flatfish trawl, shorebased IFQ,
(13) Non-groundfish trawl gear for pink shrimp,
(14) Non-groundfish trawl gear for ridgeback prawn,
(15) Non-groundfish trawl gear for California halibut,
(16) Non-groundfish trawl gear for sea cucumber,
(17) Open access longline gear for groundfish,
(18) Open access Pacific halibut longline gear,
(19) Open access groundfish trap or pot gear,
(20) Open access Dungeness crab trap or pot gear,
(21) Open access prawn trap or pot gear,
(22) Open access sheephead trap or pot gear,
(23) Open access line gear for groundfish,
(24) Open access HMS line gear,
(25) Open access salmon troll gear,
(26) Open access California Halibut line gear,
(27) Open access Coastal Pelagic Species net gear,
(28) Other gear,
(29) Tribal trawl,
(30) Open access California gillnet complex gear, or
(31) Gear testing.
* * * * *
0
5. Amend Sec. 660.50 by revising paragraph (h) to read as follows:
Sec. 660.50 Pacific Coast treaty Indian fisheries.
* * * * *
(h) Salmon bycatch. This fishery may be closed through automatic
action at Sec. 660.60(d)(1)(v).
0
6. Amend Sec. 660.60 by revising paragraphs (c)(3)(i) introductory
text, (c)(3)(i)(C), and (d)(1)(iv) and (v) and adding paragraph (i) to
read as follows:
Sec. 660.60 Specifications and management measures.
* * * * *
(c) * * *
(3) * * *
(i) Depth-based management measures. Depth-based management
measures, particularly closed areas known as Groundfish Conservation
Areas, defined in Sec. 660.11, include RCAs, BRAs, and BACs, and may
be implemented in any fishery sector that takes groundfish directly or
incidentally. Depth-based management measures are set using specific
boundary lines that approximate depth contours with latitude/longitude
waypoints found at Sec. Sec. 660.70 through 660.74 and 660.76. Depth-
based management measures and closed areas
[[Page 10868]]
may be used for the following conservation objectives: To protect and
rebuild overfished stocks; to prevent the overfishing of any groundfish
species by minimizing the direct or incidental catch of that species;
or to minimize the incidental harvest of any protected or prohibited
species taken in the groundfish fishery. Depth-based management
measures and closed areas may be used for the following economic
objectives: To extend the fishing season; for the commercial fisheries,
to minimize disruption of traditional fishing and marketing patterns;
for the recreational fisheries, to spread the available catch over a
large number of anglers; to discourage target fishing while allowing
small incidental catches to be landed; and to allow small fisheries to
operate outside the normal season.
* * * * *
(C) Block Area Closures. BACs, as defined at Sec. 660.111, may be
closed or reopened, in the EEZ off Oregon and California, for vessels
using limited entry bottom trawl gear, and in the EEZ off Washington,
Oregon and California for vessels using midwater trawl gear, consistent
with the purposes described in this paragraph (c)(3)(i).
* * * * *
(d) * * *
(1) * * *
(iv) Close the following groundfish fisheries, not including
Pacific Coast treaty Indian fisheries, when conditions for Chinook
salmon bycatch described in this table and paragraphs (d)(1)(iv)(A) and
(B) of this section are met:
Table 1 to Paragraph (d)(1)(iv)
------------------------------------------------------------------------
If Chinook salmon
bycatch, as
described in Sec.
Close: 660.60(i)(2), And:
exceeds:
------------------------------------------------------------------------
Whiting sector (Pacific 11,000 fish in (1) A routine
whiting IFQ fishery, MS Coop the whiting management measure
Program and/or C/P Coop sector. specified at Sec.
Program). 660.60(c) has not
been implemented as
described in Sec.
660.60(i)(1) OR (2)
The non-whiting
sector has caught
its 5,500 Chinook
salmon bycatch
guideline and 3,500
Chinook salmon from
the bycatch reserve.
Whiting sector (Pacific 14,500 fish in The non-whiting
whiting IFQ fishery, MS Coop the whiting sector has not
Program and C/P Coop Program). sector. accessed the Chinook
salmon bycatch
reserve.
Non-whiting sector (midwater 5,500 fish in the (1) A routine
trawl, bottom trawl, and non-whiting management measure
fixed gear fisheries under sector. specified at Sec.
the Shorebased IFQ Program, 660.60(c) has not
limited entry fixed gear been implemented as
fisheries, open access described in Sec.
fisheries, and recreational 660.60(i)(1) OR (2)
fisheries subject to this The whiting sector
provision as set out in Sec. has caught its
660.360(d)). 11,000 Chinook
salmon guideline and
3,500 Chinook salmon
from the bycatch
reserve.
Non-whiting sector (midwater 9,000 fish in the The whiting sector
trawl, bottom trawl, and non-whiting has not accessed the
fixed gear fisheries under sector. Chinook salmon
the Shorebased IFQ Program, bycatch reserve.
limited entry fixed gear
fisheries, open access
fisheries, and recreational
fisheries subject to this
provision as set out in Sec.
660.360(d)).
Non-whiting trawl fisheries 8,500 fish in the
(midwater trawl and bottom non-whiting
trawl fisheries under the sector.
Shorebased IFQ Program).
All trawl fisheries (whiting 19,500 fish in
sector and non-whiting trawl the whiting and
fisheries). non-whiting
sector.
------------------------------------------------------------------------
(A) Consistent with Sec. 660.60(i)(2), each component of the
whiting sector (Pacific whiting IFQ fishery, MS Coop Program and C/P
Coop Program) will be closed when Chinook salmon bycatch exceeds 11,000
Chinook salmon if a routine management measure specified at Sec.
660.60(c) has not been implemented as described in Sec. 660.60(i)(2)
for that individual component of the whiting sector.
(B) Consistent with Sec. 660.60(i)(2), the Chinook salmon closure
at 11,000 fish does not apply to those whiting sector vessels that are
parties to an approved Salmon Mitigation Plan, as specified at Sec.
660.113(e), unless the non-whiting sector has caught the entire 3,500
Chinook salmon bycatch reserve.
(v) Close all groundfish fisheries, including Pacific Coast treaty
Indian fisheries, if Chinook salmon bycatch in the groundfish fishery
exceeds 20,000 fish.
* * * * *
(i) Salmon bycatch management. Salmon bycatch is managed through
routine management measures, salmon bycatch guidelines and a Chinook
salmon bycatch reserve, and fisheries closures. For purposes of salmon
bycatch management, the groundfish fishery is divided into the whiting
sector and non-whiting sector and includes bycatch of Chinook salmon
and coho salmon from both non-tribal fisheries and Pacific Coast treaty
Indian fisheries. The non-whiting sector includes the Pacific Coast
treaty Indian vessels that target Pacific coast groundfish species
other than whiting, as well as non-tribal vessels that target Pacific
coast groundfish species other than whiting in the midwater trawl,
bottom trawl, and fixed gear fisheries under the Shorebased IFQ
Program, limited entry fixed gear fisheries, open access fisheries as
defined at Sec. 660.11, and recreational fisheries subject to this
provision as set out in Sec. 660.360(d). The whiting sector is the
Pacific whiting fishery, as defined in Sec. 660.111, and includes the
Pacific Coast treaty Indian vessels that target whiting, as well as
non-tribal vessels that target whiting participating in the C/P Coop
Program, the MS Coop Program, and the Pacific whiting IFQ fishery.
(1) Routine management measures. Routine management measures
specified at Sec. 660.60(c) may be implemented to minimize Chinook
salmon and/or coho salmon bycatch in the groundfish fishery. These
measures may include BRAs, BACs, or a selective flatfish trawl gear
requirement. These measures would not apply to vessels fishing in
Pacific Coast treaty Indian fisheries.
[[Page 10869]]
(i) Non-whiting sector. Routine management measures to manage
salmon bycatch in the non-whiting sector include:
(A) A BAC for bottom trawl or midwater trawl as specified at Sec.
660.60(c)(3)(i).
(B) A BRA for midwater trawl as specified at Sec. 660.60(c)(3)(i).
(C) A selective flatfish trawl gear requirement for bottom trawl.
(ii) Whiting sector. Routine management measures to manage salmon
bycatch in the whiting sector include:
(A) A BAC as specified at Sec. 660.60(c)(3)(i).
(B) A BRA as specified at Sec. 660.60(c)(3)(i).
(2) Chinook salmon bycatch guidelines and Chinook salmon bycatch
reserve. The Chinook salmon bycatch guideline for the non-whiting
sector is 5,500 fish. The Chinook salmon bycatch guideline for the
whiting sector is 11,000 fish. If a sector exceeds its Chinook salmon
bycatch guideline, it may access a reserve of 3,500 Chinook salmon
reserve provided action has been taken to minimize Chinook salmon
bycatch as described in paragraph (i)(2)(i) or (ii) of this section.
For bycatch accounting purposes, all Chinook salmon bycatch from the
groundfish fishery, including both non-tribal and Pacific Coast treaty
Indian fisheries, counts towards the applicable whiting or non-whiting
sector bycatch guideline and the reserve.
(i) Reserve access for the non-whiting sector. The non-whiting
sector may only access the reserve if a measure described in paragraph
(i)(1)(i) of this section has been implemented.
(ii) Reserve access for the whiting sector. Each component of the
whiting sector (Pacific whiting IFQ fishery, MS Coop Program and C/P
Coop Program) may only access the reserve if a measure described in
paragraph (i)(1)(ii) of this section has been implemented for that
component of the whiting fishery. If a measure described in paragraph
(i)(1)(ii) of this section has not been implemented for that component
of the whiting fishery, vessels within that component that are parties
to an approved Salmon Mitigation Plan (SMP), as specified at Sec.
660.113(e), may access the reserve.
(3) Fisheries closures. Groundfish fisheries may be closed through
automatic action at Sec. 660.60(d)(1)(iv) and (v).
0
7. Amend Sec. 660.111 by:
0
a. Revising the definition of ``Block area closures or BACs'';
0
b. Removing the definition of ``Mothership Coop Program or MS Coop
Program''; and
0
c. Adding a definition for ``Salmon Mitigation Plan (SMP)'' in
alphabetical order.
The revision and addition read as follows:
Sec. 660.111 Trawl fishery--definitions.
* * * * *
Block area closures or BACs are a type of groundfish conservation
area, defined at Sec. 660.11, bounded on the north and south by
commonly used geographic coordinates, defined at Sec. 660.11, and on
the east and west by the EEZ, and boundary lines approximating depth
contours, defined with latitude and longitude coordinates at Sec. Sec.
660.71 through 660.74 (10 fm through 250 fm), and Sec. 660.76 (700
fm). BACs may be implemented or modified as routine management
measures, per regulations at Sec. 660.60(c). BACs may be implemented
in the EEZ off Oregon and California for vessels using limited entry
bottom trawl and/or midwater trawl gear. BACs may be implemented in the
EEZ off Washington shoreward of the boundary line approximating the
250-fm depth contour for midwater trawl vessels. BACs may close areas
to specific trawl gear types (e.g. closed for midwater trawl, bottom
trawl, or bottom trawl unless using selective flatfish trawl) and/or
specific programs within the trawl fishery (e.g. Pacific whiting
fishery or MS Coop Program). BACs may vary in their geographic
boundaries and duration. Their geographic boundaries, applicable gear
type(s) and/or specific trawl fishery program, and effective dates will
be announced in the Federal Register. BACs may have a specific
termination date as described in the Federal Register, or may be in
effect until modified. BACs that are in effect until modified by
Council recommendation and subsequent NMFS action are set out in Tables
1 (North) and 1 (South) of this subpart.
* * * * *
Salmon Mitigation Plan (SMP) means a voluntary agreement amongst a
group of at least three vessels in the MS Coop Program, C/P Coop
Program, or Pacific whiting IFQ fishery to manage Chinook salmon
bycatch, approved by NMFS under Sec. 660.113(e). Vessels fishing under
an approved SMP would have access to the Chinook salmon bycatch reserve
as described in Sec. 660.60(i)(2). Routine management measures to
minimize Chinook salmon bycatch as described in Sec. 660.60(i) may be
implemented for vessels that are parties to an approved SMP.
* * * * *
0
8. Amend Sec. 660.113 by adding paragraph (e) to read as follows:
Sec. 660.113 Trawl fishery--recordkeeping and reporting.
* * * * *
(e) Salmon Mitigation Plan (SMP). NMFS may approve a SMP for a
group of at least three vessels in the MS Coop Program, C/P Coop
Program, or Pacific whiting IFQ fishery. NMFS may approve an SMP for
more than one group in a given year.
(1) Applicability of further measures to manage salmon bycatch.
Routine management measures to minimize Chinook salmon bycatch as
described in Sec. 660.60(i) may be implemented for vessels with an
approved SMP.
(2) SMP contents. The SMP must contain, at a minimum, the
following--
(i) SMP name. The name of the SMP.
(ii) Vessels party to the SMP. The vessel name and USCG vessel
registration number (as given on USCG Form 1270) or state registration
number, if no USCG documentation, of each vessel that is party to the
SMP. A minimum of three vessels must be party to the SMP.
(iii) Compliance agreement. A written statement that all parties to
the SMP agree to voluntarily comply with all provisions of the SMP.
(iv) Signatures of those party to SMP. The names and signatures of
the owner or representative for each vessel that is party to the SMP.
(v) Designated SMP representative. The name, telephone number,
mailing address, and email address of a person appointed by those party
to the SMP who is responsible for:
(A) Serving as the SMP contact person between NMFS and the Council;
(B) Submitting the SMP proposal and any SMP amendments; and
(C) Submitting the SMP postseason report to the Council and NMFS.
(vi) Plan. A description of:
(A) How parties to the SMP will adequately monitor and account for
the catch of Chinook salmon.
(B) How parties to the SMP will avoid and minimize Chinook salmon
bycatch, including a description of tools parties will employ. Tools
may include, but would not be limited to, information sharing, area
closures, movement rules, salmon excluder use, and internal bycatch
guidelines.
(C) How the SMP is expected to promote reductions in Chinook salmon
bycatch relative to what would have occurred in absence of the SMP.
(3) Deadline for proposed SMP. A proposed SMP must be submitted
[[Page 10870]]
between February 1 and March 31 of the year in which it intends to be
in effect to NMFS at: NMFS, West Coast Region, ATTN: Fisheries Permit
Office, Bldg. 1, 7600 Sand Point Way NE, Seattle, WA 98115. In 2021,
NMFS may consider proposals received after March 31. In 2021, NMFS will
announce any changes to the SMP submission deadline via public notice.
In 2022 and beyond, NMFS will not consider any proposals received after
March 31.
(4) Duration. Once approved, the SMP expires on December 31 of the
year in which it was approved. An SMP may not expire mid-year. No party
may join or leave an SMP once it is approved, except as allowed in
paragraph (e)(5)(iii) of this section.
(5) NMFS review of a proposed SMP--(i) Approval. The Assistant
Regional Administrator will provide written notification of approval to
the designated SMP representative if the SMP meets the following
requirements:
(A) Contains the information required in paragraph (e)(2) of this
section;
(B) Is submitted in compliance with the requirements of paragraphs
(e)(3) and (4) of this section; and
(C) As determined by NMFS, is reasonably expected to reduce Chinook
salmon bycatch.
(ii) SMP identification number. If approved, NMFS will assign an
SMP identification number to the approved SMP.
(iii) Amendments to an SMP. After the SMP is approved, the
designated SMP representative must submit any changes to the SMP,
including any changes in the vessels party to the SMP, as an amendment
to the SMP for approval by NMFS. The designated SMP representative may
submit amendments to an approved SMP to NMFS at any time during the
year in which the SMP is approved. The amendment must include the SMP
identification number. An amendment to an approved SMP is effective
upon written notification of approval by NMFS to the designated SMP
representative. The Assistant Regional Administrator will provide
written notification of approval to the designated SMP representative
if the SMP as amended meets the following requirements:
(A) Contains the information required in paragraph (e)(2) of this
section;
(B) Is submitted in compliance with the requirements of paragraph
(e)(4) of this section; and
(C) As determined by NMFS, is reasonably expected to reduce Chinook
salmon bycatch.
(iv) Disapproval--(A) NMFS Disapproval. NMFS will disapprove a
proposed SMP or a proposed amendment to an SMP for any of the following
reasons:
(1) If the proposed SMP fails to meet any of the requirements of
paragraphs (e)(2) through (4) of this section,
(2) If a proposed amendment to an SMP would cause the SMP to no
longer meet the requirements of paragraphs (e)(2) and (4) of this
section, or
(3) If NMFS determines the proposed SMP or SMP amendment is not
reasonably expected to reduce Chinook salmon bycatch.
(B) Initial Administrative Determination (IAD). If, in NMFS' review
of the proposed SMP or amendment, NMFS identifies deficiencies in the
proposed SMP that would require disapproval of the proposed SMP or
amendment, NMFS will notify the applicant in writing. The applicant
will be provided one 30-day period to address, in writing, the
deficiencies identified by NMFS. Additional information or a revised
SMP received by NMFS after the expiration of the 30-day period
specified by NMFS will not be considered for purposes of the review of
the proposed SMP or amendment. NMFS will evaluate any additional
information submitted by the applicant within the 30-day period. If the
Assistant Regional Administrator determines the additional information
addresses deficiencies in the proposed SMP or amendment, the Assistant
Regional Administrator will approve the proposed SMP or amendment under
paragraph (e)(5)(i) or (iii) of this section. However, if, after
consideration of the original proposed SMP or amendment, any additional
information, or a revised SMP submitted during the 30-day period, NMFS
determines the proposed SMP or amendment does not comply with the
requirements of paragraph (e)(5)(i) or (iii) of this section, the
Assistant Regional Administrator will issue an IAD to the applicant in
writing providing the reasons for disapproving the proposed SMP or
amendment.
(C) Administrative Appeals. An applicant who receives an IAD
disapproving a proposed SMP or amendment may appeal. The appeal must be
filed in writing within 30 calendar days of when NMFS issues the IAD.
The NOAA Fisheries National Appeals Office will process any appeal. The
regulations and policy of the National Appeals Office will govern the
appeals process. The National Appeals Office regulations are specified
at 15 CFR part 906.
(D) Pending appeal. While the appeal of an IAD disapproving a
proposed SMP or amendment is pending, proposed parties to the SMP
subject to the IAD will not have access to the Chinook salmon bycatch
reserve unless a measure described in Sec. 660.60(i)(1)(ii) has been
implemented for that component of the whiting fishery.
(6) SMP postseason report. The designated SMP representative for an
approved SMP must submit a written postseason report to NMFS and the
Council for the year in which the SMP was approved.
(i) Submission deadline. The SMP postseason report must be received
by NMFS and the Council no later than March 31 of the year following
that in which the SMP was approved.
(ii) Information requirements. The SMP postseason report must
contain, at a minimum, the following information:
(A) Name of the SMP and SMP identification number.
(B) A comprehensive description of Chinook salmon bycatch avoidance
measures used in the fishing year in which the SMP was approved,
including but not limited to, information sharing, area closures,
movement rules, salmon excluder use, and internal bycatch guidelines.
(C) An evaluation of the effectiveness of these avoidance measures
in minimizing Chinook salmon bycatch.
(D) A description of any amendments to the terms of the SMP that
were approved by NMFS during the fishing year in which the SMP was
approved and the reasons the amendments to the SMP were made.
0
9. Amend Sec. 660.130 by revising paragraphs (e) introductory text,
(e)(5) introductory text, and (e)(5)(i) and (iii) and adding paragraph
(g) to read as follows:
Sec. 660.130 Trawl fishery--management measures.
* * * * *
(e) Groundfish conservation areas (GCAs). GCAs are closed areas,
defined at Sec. 660.11, and using latitude and longitude coordinates
specified at Sec. Sec. 660.70 through 660.74, and Sec. 660.76.
* * * * *
(5) Block area closures or BACs. BACs, defined at Sec. 660.111,
are applicable to vessels with groundfish bottom trawl or midwater
trawl gear on board that is not stowed, per the prohibitions in Sec.
660.112(a)(5). When in effect, BACs are areas closed to bottom trawl
and/or midwater trawl fishing. A vessel operating, for any purpose
other than continuous transiting, in the BAC must have prohibited trawl
gear stowed, as defined at Sec. 660.111. Nothing in these Federal
regulations supersedes any state regulations that may prohibit trawling
shoreward of the fishery management area, defined at Sec. 660.11.
Prohibitions at
[[Page 10871]]
Sec. 660.112(a)(5) do not apply under any of the following conditions
and when the vessel has a valid declaration for the allowed fishing:
(i) Trawl gear. Limited entry midwater trawl gear and bottom trawl
gear may be used within the BAC only when it is an authorized gear type
for the area and season, and not prohibited by the BAC.
* * * * *
(iii) Multiple gears. If a vessel fishes in a BAC with an
authorized groundfish trawl gear, it may fish outside the BAC on the
same trip using another authorized trawl gear type for that area and
season, provided it makes the appropriate declaration change.
* * * * *
(g) Salmon bycatch. This fishery may be closed through automatic
action at Sec. 660.60(d)(1)(iv) and (v).
[FR Doc. 2021-03204 Filed 2-22-21; 8:45 am]
BILLING CODE 3510-22-P
