2021-23653. Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2021-2022 Biennial Specifications and Management Measures; Inseason Adjustments

AGENCY:

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

ACTION:

Final rule; inseason adjustments to biennial groundfish management measures.

SUMMARY:

This final rule announces routine inseason adjustments to management measures in commercial groundfish fisheries. This action is intended to allow commercial fishing vessels to access more abundant groundfish stocks while protecting rebuilding and depleted stocks.

DATES:

This final rule is effective October 26, 2021.

FOR FURTHER INFORMATION CONTACT:

Sean Matson, email: [e-mail].

ADDRESSES:

Electronic Access

This rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/​.

SUPPLEMENTARY INFORMATION:

Background

The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for 2 year periods ( i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2021-2022 biennium for most species managed under the PCGFMP on December 11, 2020 (85 FR 79880). In general, the management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

At its meeting on September 9-15, 2021, the Council recommended increasing trip limits for the Limited Entry (LE) and Open Access (OA) Fixed Gear (FG) sablefish, Daily Trip Limit (DTL) fisheries north of 36° N latitude. The Council also recommended increasing trip limits for the fixed gear lingcod fishery, north of 42° N latitude (LE and OA), beginning as soon as possible, for the remainder of the 2021 fishing year and for subsequent September-December periods in later years until superseded.

Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits [OFL], acceptable biological catch [ABC], annual catch limits [ACL] and harvest guidelines [HG]) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b)). During development of the harvest specifications, the Council also recommends management measures ( e.g., trip limits, area closures, and bag limits) that are meant to manage catch so as not to exceed the harvest specifications. The harvest specifications and management measures developed for the 2021-2022 biennium used data through the 2020-fishing year. Each of the adjustments to management measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, projected impacts of management measures are updated, and the management measures themselves may need to be adjusted so as to help harvesters achieve but not exceed the harvest limits.

Sablefish is an important commercial species on the West Coast, targeted by vessels using both bottom trawl and fixed gear (longlines and pots/traps). The sablefish stock is managed with a coast-wide OFL and ABC, but with separate ACLs, north and south of 36° N latitude. In 2021, the ACL for sablefish north of 36° N latitude is 6,892 metric tons (mt) with a fishery HG of 6,165 mt. The fishery HG north of 36° N latitude is further divided between the LE FG and OA sectors with 90.6 percent, or 5,586 mt, going to the LE sector and 9.4 percent, or 580 mt, going to the OA sector. The LE share is divided so that 58 percent goes to trawl and 42 percent goes to FG. The LE FG share is further divided between the sablefish primary (tier) fishery (85% or 1,994 mt) and the daily trip limit (DTL) fisheries (15% or 352 mt), as shown in Table 1c. to Title 50, part 660, subpart C of the CFR. The sablefish DTL fisheries are individually managed using landing targets (Table 1), which have accounted for discard mortality a priori, by subtracting 4.5 percent from the DTL catch share. This same method of accounting for discard mortality to calculate the landing target is also used in managing the OA sablefish DTL fishery, north of 36° N latitude (Table 1).

Lingcod is another important commercial species on the West Coast, and like sablefish, caught by vessels with both trawl and fixed gear (longlines and pots/traps). The lingcod stock is managed separately north and south of 40°10′ N latitude, with a northern ACL of 5,369 mt in 2021, a fishery HG of 5,090.6 mt, and a northern trawl fixed gear allocation of 2,290.8, or 45 percent of the HG, and a northern non-trawl allocation of 2,799.8, or 55 percent. Lingcod north of 40°10′ N latitude are additionally managed north and south of 42° N latitude, typically with different trip limits set north and south of that management line.

Request, Analysis, and Council Recommendation

At the September 2021 Council meeting, the Council's Groundfish Management Team (GMT) received requests from industry members and members of the Council's Groundfish Advisory Subpanel to examine the potential to increase sablefish trips limits for the fixed gear, LE and OA DTL fisheries north of 36° N lat., and to increase trip limits for lingcod north of 42° N latitude. The intent of increasing the sablefish limits is to increase harvest opportunities for vessels targeting sablefish, under a mix of daily, weekly, and bimonthly landings accumulation limits (commonly referred to collectively as “trip limits”); attainment of harvest targets for each DTL fishery, and the northern fixed gear HG for sablefish have been trending much lower than anticipated throughout 2021. To evaluate potential increases to sablefish trip limits, the GMT made model-based projections of landings under current regulations, as well as alternative sablefish trip limits, including the limits ultimately recommended by the Council, through the remainder of the year. Table 1 shows the projected sablefish landings, the sablefish harvest targets, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits. These projections were based on the most recent catch information available through early September 2021. Industry did not request changes to sablefish trip limits for the LE or OA DTL fisheries south of 36° N latitude. Therefore, NMFS and the Council did not consider changes for those fisheries at this time.

As shown in Table 1, under the current trip limits, models predict that landings of sablefish will be far below the harvest targets for LE, and OA fixed gear sablefish DTL fisheries north of 36° N lat. Under the Council's recommended trip limits, sablefish attainment is projected to increase in the LE DTL fishery north of 36° N latitude, from between 54-59 percent attainment, up to between 86 and 95 percent. For the OA DTL fishery, north of 36° N latitude, the projected gains are more modest (from between 53 and 60 percent attainment, to between 57 and 66 percent); however, the OA model is more uncertain and less well informed than the LE model, the changes (both to LE and OA) should allow some beneficial increase in attainment, while being sufficiently precautionary.

Gear Restriction Necessary To Implement Council Recommended Trip Limits

These fixed gear, sablefish and lingcod fisheries include vessels fishing with both hook-and-line and pot gears. West Coast groundfish sablefish pot gear fisheries are considered Category II fisheries under the Marine Mammal Protection Act List of Fisheries, indicating occasional interactions with marine mammals, due to occasional incidental mortality and serious injury to ESA-listed humpback whales (the CA/OR/WA stock of humpback whales).

Because sablefish pot gear fisheries are Category II fisheries, NMFS is required to issue a MMPA 101(a)(5)(E) permit for the taking of marine mammals after making a negligible impact determination (NID). NMFS issued a permit for the sablefish pot gear fisheries on September 4, 2013 (amended April 23, 2015 (80 FR 22709)), which expired on September 4, 2016 (78 FR 54553). NMFS published a notice of proposed issuance of a MMPA 101(a)(5)(E) permit and proposed NID on October 22, 2021 (86 FR 58641).

Due to lack of a final 101(a)(5)(E) permit, in this action NMFS is only implementing the inseason increases to trip limits for those vessels using non-pot/trap, fixed gears ( e.g., longline and other hook-and-line gears), in the LE and OA FG sablefish, DTL fisheries north of 36° N latitude, as well as the fixed gear lingcod fishery, north of 42° N latitude (LE and OA). Pot/trap gear cannot be used in the affected sectors to land up to the higher September through December trip limits for sablefish or lingcod, and vessels using pot/trap gear are instead subject to the lower January through August limits.

Gear restrictions are common routine accountability measures (AMs) in groundfish fisheries (50 CFR 660.60). Additionally, analogous restrictions for vessels to adhere to the lower of two trip limits, in situations of mixed limits for one species during the same period exist in crossover provisions in the groundfish fishery, found at 50 CFR 660.60(h)(7). Crossover provisions normally apply to three activities: Fishing on different sides of a management line, fishing in both the limited entry and open access fisheries, or fishing in both the Shorebased IFQ Program and the limited entry fixed gear fishery. Under the most common scenario, crossover provisions hold a vessel that fishes in areas with two different trip limits for the same species, to the more restrictive of the two limits. The gear specific trip limits implemented through this rule will be managed similar to cross-over provisions.

Providing the trip limit increases with the additional gear restriction still enables substantial additional opportunity as a result of this action for those fishery participants who use longline and other non-pot gear, although it may cause some reduction in benefit versus without the gear restriction. The percentage contributions of pot/trap versus longline gear types to landings over the past five years provides some information about an upper bounds of potential reduction in benefit due to the gear restriction on access to the higher trip limits. Among fixed gear fisheries, in the LE DTL fishery north of 36° N lat., pot gear only accounted for 6.8 percent of sablefish landings from 2016-2020 (some permits are dual-endorsed, for both gear types), while in the OA DTL fishery north of 36° N lat., pot gear accounted for 46 percent of sablefish landings. Just 22 percent of lingcod fixed gear landings (mt) were made using pot gear over the same years in the DTL fishery, while 78 percent were made with longline gear. In the FG OA fishery, only 0.6 percent of lingcod landings were made with pot gear, and 99.4 percent with longline gear. Given these gear distributions for landings in the affected sectors, the GMT's analysis from the September meeting is still valid for this inseason action, even though it was conducted using data that included pot gear as well as longline, and trace amounts of other fixed gears. Thus for both species, the majority of landings overall will be subject to the increased trip limits, and this will provide substantial additional opportunity, despite the gear restriction.

The Council also recommended changes to trip limits for lingcod north of 42° N latitude, after request from industry and analysis by the GMT, in order to reduce regulatory discard, which results in waste and lost revenue. Table 2 shows the current and recommended trip limits for lingcod north of 42° N latitude. Table 3 shows the projected impacts of those limits to total mortality, and percent attainment of the non-trawl allocation, north of 40° 10′ N latitude. Projected impacts to total fishing mortality are nearly identical, and well within the margin for error, but based on the analysis by the GMT, the higher landing limits are predicted to convert lost fish as discard, into landings and revenue, rather than inspire additional effort. By maintaining the same level of effort, and total fishing mortality, this increase in trip limits is not predicted to increase bycatch of yelloweye rockfish, which is managed under a rebuilding plan, and is a constraint to this fixed gear lingcod attainment.

Summary of Changes

Trip limit increases for sablefish are intended to increase attainment of the LE and OA DTL fisheries, which each contribute to attainment of the non-trawl HG for sablefish north of 36° N latitude. The trip limit increases do not change projected impacts to co-occurring rebuilding species as analyzed in the 2021-2022 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Recommended increases to lingcod north of 42° N latitude are intended to convert regulatory discards into landings and associated revenue, and are not predicted to increase effort or bycatch of co-occurring rebuilding species. NMFS is only implementing the Council-recommended trip limits for vessels fishing with fixed gear types other than pot/trap, due to the lack of a final MMPA101(a)(5)(E) permit. Therefore, the Council recommended, and NMFS is implementing, by modifying Table 2, North and South to part 660, subpart E, trip limit changes for the LEFG fishery north of 40°10′ N lat., as well as Table 3, North and South to part 660, subpart F to increase the limits as shown in tables 4 and 5 in this rule.

Classification

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection by contacting Dr. Sean Matson in the West Coast Region (see FOR FURTHER INFORMATION CONTACT , above), or view at the NMFS West Coast Groundfish website: http://www.westcoast.fisheries.noaa.gov/​fisheries/​groundfish/​index.html.

Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document increase trip limits for fisheries off of Washington, Oregon, and California to allow for greater attainment of allocations. No aspect of this action is controversial, and changes of this nature were anticipated in the final rule for the 2021-2022 harvest specifications and management measures which published on December 11, 2020 (85 FR 79880).

As stated earlier, the Council recommended sablefish limit changes to increase fisher opportunity to attain harvest targets and allocations for their respective fisheries, and contribute to attainment of the ACL. New information became available at the September 2021 meeting showing that harvest was tracking much lower than projections made during the harvest specifications process due to changing fishery conditions. The updated trip limits being implemented in this rule are anticipated to increase landings and fishing community revenue, while maintaining harvest within scientifically informed conservation limits, concomitant with the goals of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Stevens Act).

The Council recommended increased lingcod landing limits to reduce regulatory discard; new information became available at the 2021 September meeting indicating that current levels of landing limits were having the unintended consequence of causing fishers to discard substantial amounts of catch. Implementing the recommended trip limits is projected to ameliorate this, without changing attainment rate of the allocation, by enabling those fish to be landed rather than wasted, and produce fisher and community revenue.

Delaying implementation to allow for public comment would reduce the economic benefits to the commercial fishing industry and the businesses that rely on that industry because it is unlikely the new regulations would publish and could be implemented before the end of the calendar year. Therefore, providing a comment period for this action could significantly limit the economic benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries.

Therefore, NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the Federal Register . The adjustments to management measures in this document affect commercial fisheries by increasing opportunity and relieving participants of the lower trip limits in light of information showing lower than usual attainment. These adjustments were requested by the Council's advisory bodies, as well as members of industry during the September 2021 meeting, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2021-2022 (85 FR 79880).

List of Subjects in 50 CFR Part 660

Fisheries, Fishing, Indian fisheries.

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

Dated: October 26, 2021.

Jennifer M. Wallace,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

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

PART 660—FISHERIES OFF WEST COAST STATES

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. Revise Table 2 (North) to part 660, subpart E, to read as follows:

3. Revise Table 2 (South) to part 660, subpart E, to read as follows:

4. Revise Table 3 (North) to part 660, subpart F, to read as follows:

5. Revise Table 3 (South) to part 660, subpart F, to read as follows: