2014-28113. Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod Pot Gear Fishing Closure in the Pribilof Islands Habitat Conservation Zone in the Bering Sea; Amendment 103

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 103 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP). This rule closes year-round the Pribilof Islands Habitat Conservation Zone (PIHCZ) to directed fishing for Pacific cod with pot gear to minimize bycatch and prevent overfishing of Pribilof Islands blue king crab (PIBKC). This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the BSAI FMP, and other applicable laws.

DATES:

Effective: January 1, 2015.

ADDRESSES:

Electronic copies of the BSAI FMP, Amendment 103 to the BSAI FMP, the Environmental Assessment (EA), and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for this action are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at https://alaskafisheries.noaa.gov/​cm/​analyses/​.

FOR FURTHER INFORMATION CONTACT:

Anne Marie Eich, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fisheries of the Bering Sea and Aleutian Islands management area (BSAI) in the Exclusive Economic Zone off Alaska under the BSAI FMP. The North Pacific Fishery Management Council (Council) prepared the BSAI FMP under the authority of the Magnuson-Stevens Act and other applicable laws. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600. Regulations implementing the BSAI FMP appear at 50 CFR part 679.

This final rule implements Amendment 103 to the BSAI FMP. This rule closes the PIHCZ to directed fishing for Pacific cod with pot gear.

Amendment 103 to the BSAI FMP is being implemented with Amendment 43 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP). Amendment 43 to the Crab FMP revises the current rebuilding plan for PIBKC to include the Pacific cod pot gear prohibition that would be implemented under Amendment 103. No regulatory amendments are needed to implement Amendment 43. These amendments implemented together ensure that the PIBKC rebuilding plan is revised to further reduce the bycatch of PIBKC in the groundfish fisheries, supporting the rebuilding of the PIBKC stock in the shortest time possible.

NMFS published the Notice of Availability (NOA) of Amendment 103 to the BSAI FMP and Amendment 43 to the Crab FMP in the Federal Register on August 21, 2014, with a 60-day comment period that ended October 20, 2014 (79 FR 49487). The Secretary of Commerce approved Amendment 103 to the BSAI FMP and Amendment 43 to the Crab FMP on November 14, 2014. NMFS received two comment letters on the NOA of Amendment 103 to the BSAI FMP and Amendment 43 to the Crab FMP. These comments raised identical concerns to one of the comments received on the proposed rule, which is summarized in the “Comments and Responses” section in this final rule.

NMFS published a proposed rule to implement Amendment 103 to the BSAI FMP and the closure of the PIHCZ to directed fishing for Pacific cod with pot gear on August 29, 2014 (79 FR 51520). The 30-day comment period on the proposed rule ended September 29, 2014. NMFS received two comment letters during the proposed rule comment period. The comment letters contained three unique comments. A summary of those comments and NMFS' responses are provided in the “Comments and Responses” section of this preamble.

This final rule closes the PIHCZ year-round to directed fishing for Pacific cod with pot gear to minimize bycatch of PIBKC in groundfish fisheries and prevent overfishing of PIBKC. The term “directed fishing” is defined in the groundfish fisheries regulation at § 679.2. In June 2012, the Council recommended closing the PIHCZ to directed fishing for Pacific cod with pot gear based on (1) the high rate of PIBKC bycatch in the PIHCZ relative to other areas outside of the PIHCZ; (2) the high concentration of PIBKC in the PIHCZ; (3) the occurrence of known PIBKC habitat within the PIHCZ; (4) the high rate of PIBKC bycatch in the Pacific cod pot fishery relative to other groundfish fisheries; and (5) the limited impact the Pacific cod pot closure in the PIHCZ would have on the Pacific cod pot fishery relative to other groundfish fishery closures. The proposed rule preamble provides additional information on the closure, including detailed information on the development of the action, the impacts and effects of the action, and the Council's and NMFS' rationale for the action (79 FR 51520, August 29, 2014). The proposed rule is available from the NMFS Alaska Region Web site (see ADDRESSES).

Summary of Regulatory Provisions

This final rule revises § 679.22(a)(6) to prohibit directed fishing for Pacific cod using pot gear in the PIHCZ. The existing prohibition on the use of trawl gear in the PIHCZ is retained. In addition, Figure 10 to 50 CFR part 679 is revised by (1) changing the title from “Pribilof Islands Habitat Conservation Area in the Bering Sea” to read “Pribilof Islands Habitat Conservation Zone (PIHCZ) in the Bering Sea” to be consistent with the definition of the PIHCZ at § 679.2, and (2) reformatting the map for greater accuracy and improved appearance. These format changes are non-substantive.

Changes From Proposed to Final Rule

No changes were made from proposed to final rule.

Comments and Responses

NMFS received four comment letters during the NOA and proposed rule comment periods. The comment letters contained three unique comments. A summary of the comments and NMFS' response follows.

Comment 1: NMFS should close all fishing in the Pribilof Islands to stop commercial fishermen from stealing the fish from this area and overfishing. NOAA is not enforcing the laws and is allowing too much overfishing.

Response: As explained in the preamble to the proposed rule, PIBKC is not subject to overfishing. The purpose of this action is to amend the PIBKC rebuilding plan to prevent overfishing and to rebuild the PIBKC stock in the shortest time possible. This final rule to implement Amendment 103 to the BSAI FMP closes year-round the PIHCZ to directed fishing for Pacific cod with pot gear. Prohibiting directed fishing for Pacific cod with pot gear in the PIHCZ minimizes bycatch of PIBKC to the extent practicable, prevents overfishing, and supports rebuilding of the PIBKC stock. Additional detail on the purpose of this action is provided in the preamble to the proposed rule and Sections 2.2 and 4.5.5 of the EA.

As explained in the preamble to the proposed rule, the Council and NMFS evaluated a number of additional alternatives that would close other groundfish fisheries to minimize PIBKC bycatch. Additional prohibitions on other groundfish fisheries (i.e., hook-and-line fisheries, and non-Pacific cod pot fisheries) were not projected to result in PIBKC bycatch savings, but would likely have serious adverse economic impacts (see Section 4.5.5.1 of the EA).

Under the authority of the Crab FMP, NMFS and the State of Alaska Department of Fish and Game (ADF&G) have implemented a number of additional management measures to minimize bycatch of PIBKC. NMFS has classified PIBKC as a prohibited species in groundfish fisheries, which requires avoiding incidental catch of prohibited species and immediately returning prohibited species to the sea with a minimum of injury (§§ 679.21 and 679.7(a)(12)). Since 1995, NMFS has closed the PIHCZ to groundfish trawl gear to protect blue king crab (60 FR 4110, January 20, 1995). ADF&G closes the Pribilof Islands red king crab fishery as well as other crab fisheries in other areas where PIBKC are known to occur.

NOAA Office of Law Enforcement monitors compliance with closure areas and takes enforcement action, as appropriate.

Comment 2: The proposed closure is a strong step toward allowing for recovery of the PIBKC population but NMFS is urged to implement further measures including broader-scale ecosystem level protections in the Pribilof Islands region, closure of groundfish fisheries in areas that cover the entire distribution of PIBKC stock, increased observer coverage, and additional protective measures regarding bycatch.

Response: NMFS acknowledges the support for this action. NMFS notes that the recommendation to implement broader-scale ecosystem level protections in the Pribilof Islands region is outside the scope of this action. NMFS did evaluate the effects of this action on other marine resources in the Pribilof Islands region and determined that the impact of this action would not significantly affect other marine resources (see Section 5 of the EA). NMFS also evaluated the cumulative impacts of this action and determined that this action would not have a significant cumulative impact (see Section 6 of the EA).

In response to the suggestion for further measures for groundfish fisheries in areas that cover the entire distribution of PIBKC stock, the Council and NMFS evaluated a number of additional alternatives that would further reduce PIBKC bycatch outside the PIHCZ. The Council did not recommend and NMFS did not implement closures to groundfish fisheries outside the PIHCZ because the PIHCZ is the area where this stock is concentrated. Additional closures of groundfish fisheries outside the habitat conservation zone could result in serious economic impacts to the groundfish fishery sectors without measurable conservation benefits for the PIBKC stock. Further, extending groundfish fishery closures to areas outside the PIHCZ is not viable at this time because of the difficulty in establishing this stock's boundary outside the PIHCZ and because of the current limitations in distinguishing bycatch of this stock from bycatch of St. Matthew Island blue king crab. Additional detail on the limited impact of area closures to groundfish fisheries outside the PIHCZ on the PIBKC stock is provided in the preamble to the proposed rule and in Section 4 of the EA.

In response to comments recommending increased observer coverage, NMFS notes that it implemented Amendment 86 to the BSAI FMP on January 1, 2013 (77 FR 70062, November 21, 2012) to restructure the funding and deployment system for the North Pacific Groundfish and Halibut Observer Program (Observer Program) and expand observer coverage requirements to halibut vessels and vessels less than 60 ft. in length overall. Section 3.4 of the EA prepared for this action explains that the restructured Observer Program provides the necessary observer coverage to implement this action. Therefore, additional changes to observer coverage are not required as part of this action. Finally, as explained in response to comment 1, NMFS and ADF&G have implemented a range of additional protective measures to minimize PIBKC bycatch.

Comment 3: While NMFS has little control over global greenhouse gas emissions, it can and should manage fishing activities in order to avoid adverse impacts on Alaska's marine ecosystem from serious and lasting changes in productivity due to ocean acidification processes, increasing water temperatures, and changes in seawater circulation patterns.

Response: NMFS acknowledges that predicted changes in ocean acidification, temperature, and currents will likely affect the biological productivity of Alaska's marine environment. The biological ramifications of these predicted oceanographic changes are uncertain; however, this comment is outside the scope of this action. The purpose of this action is to prevent overfishing the PIBKC stock. Nonetheless, NMFS and the Council consistently consider management changes to the fisheries under their jurisdiction and explore ways to integrate ecosystem considerations in fisheries management decisions.

Classification

The Administrator, Alaska Region, NMFS, determined that this final rule is necessary for the conservation and management of the BSAI groundfish fishery and that it is consistent with the BSAI FMP, including Amendment 103, the Magnuson-Stevens Act, and other applicable laws.

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 final regulatory flexibility analysis, 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. The preamble to the proposed rule and the preamble to this final rule serve as the small entity compliance guide. This rule does not require any additional compliance from small entities that is not described in the preamble to the proposed rule. Copies of the proposed rule and this final rule are available from NMFS at the following Web site: http://alaskafisheries.noaa.gov.

Executive Order 12866

The final rule has been determined to be not significant for purposes of Executive Order 12866.

Final Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA) contains the requirements for the FRFA in section 604(a)(1) through (6) of the RFA. The FRFA must contain:

1. A succinct statement of the need for, and objectives of, the rule;

2. A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility (IRFA) analysis, a summary 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 on the proposed rule by the Chief Counsel for Advocacy of the Small Business Administration;

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.

NMFS prepared an IRFA that addressed the requirements described in section 603(b)(1) through (5) of the RFA. This FRFA incorporates the IRFA and the summary of the IRFA in the proposed rule (79 FR 51520, August 29, 2014). NMFS published the IRFA in a combined document with the Regulatory Impact Review (RIR). The RIR/IRFA is available on the NMFS Alaska Region Web site: http://alaskafisheries.noaa.gov.

A Succinct Statement of the Need for, and Objectives of, the Rule

A statement of the need for, and objectives of, this rule are explained in the preamble to this final rule and is not repeated here.

Summary of Significant Issues Raised During Public Comment

NMFS published the proposed rule on August 29, 2014 (79 FR 51520). The 30-day comment period on the proposed rule closed on September 29, 2014. NMFS received four letters of public comment on the proposed rule. These comment letters did not address the IRFA or the economic impacts of the rule generally.

The Response to Comments From Small Business Administration

NMFS did not receive any comments on the proposed rule from the Chief Counsel for Advocacy of the Small Business Administration (SBA).

Number and Description of Small Number and Description of Small Entities Regulated by the Final Rule

The determination of the number and description of small entities regulated by these actions is based on small business size standards established by the SBA. On June 12, 2014, the SBA issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647, June 12, 2014). The rule increased the size standard for Finfish Fishing from $19.0 million to $20.5 million, Shellfish Fishing from $5.0 million to $5.5 million, and Other Marine Fishing from $7.0 million to $7.5 million.

The entities directly regulated by this action are the owners and operators of vessels directed fishing for Pacific cod using pot gear in the PIHCZ. Earnings from all Alaska fisheries for 2010, the most recent year of complete earnings data, were matched with the vessels that participated in the BSAI groundfish fisheries for that year. Based on the known affiliations and joint ownership of the vessels, 114 vessels caught, or caught and processed, less than $20.5 million ex-vessel value or product value of groundfish and other species in the BSAI. These 114 vessels are considered small entities because they all have annual ex-vessel revenues less than the $20.5 million standard for small finfish fishing vessels under the RFA. Of these 114 vessels, 34 participated in a directed fishery for Pacific cod using pot gear, and all of these vessels could be regulated by this action.

The six Western Alaska Community Development Quota (CDQ) groups and the 65 communities they represent are small entities under the RFA. Each of the CDQ groups receives annual allocations of Pacific cod in the BSAI. The CDQ groups harvest these allocations with vessels they own and vessels they contract with. The vessels owned by the CDQ groups and used to target Pacific cod are primarily large catcher/processors using hook-and-line or trawl gear. In 2012, the CDQ groups harvested 24,402 metric tons of Pacific cod. Less than 15 percent of this catch was made by vessels using pot gear, none of which were owned by the CDQ groups (actual catch using pot gear is confidential). None of the Pacific cod caught by the CDQ groups was harvested within the proposed closure areas. As CDQ groups have never used pot gear to harvest Pacific cod within the proposed closure area, this final rule is not expected to impact the CDQ groups, the CDQ communities, or the vessels that fish on their behalf.

The impacts of the action on directly regulated small entities are analyzed in the IRFA. In recent years, many of the vessels identified in this analysis as having potential small entity impacts have become members of fishing cooperatives. Increased affiliation with the BSAI Freezer-Longline Cooperative, as well as various crab cooperatives, has resulted in many vessels now being classified as large entities due to these affiliations. This analysis has incorporated cooperative affiliation information to adjust the numbers of potentially directly regulated small entities and, thereby, the estimate of revenue at risk specific to small entities. The result is evident in the declining small entity impact estimates in 2010, where estimated impacts are near zero for many of the alternatives with the exception of potential CDQ impacts, which are, by definition, small although the vessels that harvest for CDQ organizations are themselves now large via affiliations. Thus, with increased membership in cooperatives, nearly all of the potentially directly regulated vessels are presently classified as large entities and the potential effects of the action on small entities appears to be de minimis.

Recordkeeping, Reporting, and Compliance Requirements

This action will not change recordkeeping and reporting requirements. Vessel operators will continue to be required to comply with the specified area closure and gear requirements.

Description of Significant Alternatives to the Final Action That Minimize Adverse Impacts on Small Entities

The EA analyzed six alternatives with components and options for closures in the Bering Sea to minimize the bycatch of PIBKC and reduce the risk of overfishing.

The Council's preferred alternative, Alternative 2b, was selected as the action alternative. Alternative 2b closes year-round the PIHCZ to directed fishing for Pacific cod with pot gear to prevent overfishing of PIBKC and minimize bycatch of PIBKC in groundfish fisheries. Alternative 2b further reduces PIBKC bycatch mortality in groundfish fisheries, enhancing the likelihood of a successful rebuilding effort.

Alternative 1 is the status quo or no action alternative, which would not change the closure to all trawl gear in the PIHCZ. This alternative does not meet the goals and objectives of the action to minimize bycatch of PIBKC, and would not provide further protection to PIBKC from the potential effects of the groundfish fisheries.

Alternatives 2 through 6 would retain all of the current protection measures in place for the PIBKC stock and apply additional measures. These alternatives would establish closure areas for specific groundfish fisheries that are described in the following paragraphs for each alternative.

Alternative 2 included three specific methods for closing the PIHCZ to directed fishing for a variety of groundfish fisheries. Alternative 2a would close the PIHCZ on an annual basis to groundfish fisheries that met a threshold of PIBKC bycatch from 2003 to 2010 that is greater than 5 percent of the acceptable biological catch (ABC) of PIBKC. Fisheries that met the 5-percent threshold are the Pacific cod hook-and-line fishery, Pacific cod pot fishery, yellowfin sole trawl fishery, and other flatfish trawl fishery. Alternative 2b, the preferred alternative implemented by this action, would close the PIHCZ year-round to Pacific cod pot fishing. Alternative 2c would close the PIHCZ to directed fishing for Pacific cod by vessels using pot gear if the total PIBKC bycatch in all groundfish fisheries in the BSAI reached 20 percent, 30 percent, or 50 percent of the overall trigger closure cap of 75 percent of the ABC. Alternative 2c would also require vessels directed fishing for Pacific cod with pot gear in the PIHCZ to maintain 100 percent observer coverage. Alternatives 2a and 2c would have a greater impact on small entities than Alternative 2b because more vessels would be subject to potential closures in the PIHCZ. Alternative 2c would also increase the potential costs on small entities by increasing observer coverage requirements for these vessels.

Alternative 3 would close the existing ADF&G crab closure area between 168° and 170° West longitude, and between 57° and 58° North latitude to additional fishing effort, in addition to the status quo groundfish trawl closure. Alternative 3a would close the existing ADF&G crab closure area to all groundfish fisheries that have contributed greater than a designated threshold to bycatch of PIBKC since 2003. The closure would apply to any fishery that had bycatch of PIBKC between 2003 and 2010 of greater than 5 percent of ABC. Under the 5-percent threshold, the closure would apply to the following fisheries: yellowfin sole trawl, other flatfish trawl, Pacific cod pot, and Pacific cod hook-and-line. Alternative 3b would close the existing ADF&G crab closure area to directed fishing for Pacific cod only. Alternative 3a would have a greater impact on small entities than Alternative 3b because more vessels would be subject to potential closures in the PIHCZ. While Alternative 3b could potentially have less of an impact on small entities than the other alternatives (data is confidential for all years except 2005), the Alternative 3 closure boundaries exclude southern parts of the PIHCZ where PIBKC bycatch by Pacific cod pot fishing has occurred (see Figure 2-2 in the EA).

Alternative 4 would establish a closure throughout the range of the PIBKC based on either the distribution of the PIBKC stock aggregated from 1975 to 2009, or from 1984 to 2009. This range of data represented recent trends of the known distribution of PIBKC based on current stock survey methodologies and is greater than the area closure in the PIHCZ and the ADF&G closures defined under Alternative 3. Alternatives 4a and 4b would establish closures consistent with the same criteria established for Alternatives 2a and 2b, and 3a and 3b, respectively. Alternative 4 would have a greater impact on small entities due to the greater size of the closure.

Alternative 5 would establish a prohibited species catch (PSC) limit equal to either the overfishing limit (OFL), the ABC, or a proportion of the ABC for the PIBKC stock. All bycatch of the PIBKC in all groundfish fisheries would accrue toward this PSC limit, and those groundfish fisheries that contributed to greater than a designated threshold of PIBKC bycatch since 2003 would be closed once the fishery-wide PSC limit was reached.

Four area closure options are included under Alternative 5: 5a, 5b, 5c, and 5d, which correspond to the closure areas defined under Alternatives 1, 3, 4a, and 4b (1975 to 2009 PIBKC stock distribution and 1984 to 2009 PIBKC stock distribution), respectively. Under each of these options, the closure would be triggered by attainment of a fishery-wide PIBKC PSC limit set at the following options: PSC limit equal to the OFL, PSC limit equal to the ABC, PSC limit equal to 90 percent of the ABC, or PSC limit equal to 75 percent of the ABC. Under Option 5d, under the PSC limit equal to 90 percent of the ABC and the PSC limit equal to 75 percent of the ABC, there would be an additional option for allocation of the PSC limit by gear type: 40 percent trawl gear, 40 percent pot gear, and 20 percent hook-and-line gear.

Alternative 6 would have two components: (1) Establish a year-round closure of the PIHCZ to directed fishing for Pacific cod using pot gear, and (2) establish a triggered closure of the area representing the distribution of the PIBKC stock from 1984 to 2009. The PSC limit associated with the triggered closure would be established as a fishery-wide level at 75 percent of the ABC. The PSC limit would be set either in the numbers of crab based on the average weight in the previous season or in numbers of crab based on a rolling 5-year average weight. The PSC limit would be further allocated to sectors either by gear type or to all groundfish fisheries in the aggregate by seasons.

In addition, each of the alternatives included options to increase observer coverage that could be applied to all fisheries or a specific fishery.

The Council ultimately did not consider trigger cap closures (Alternatives 2c, 5, and 6) viable alternatives, due to uncertainty in appropriate definition of the stock area and the resulting current limitations in the methodology for estimating mortality of PIBKC relative to the stock distribution (see discussion in Section 4.2.2 of the EA). These alternatives would not have a measurable impact that would minimize the bycatch of PIBKC relative to status quo. These alternatives could reduce the risk of overfishing, but they would not effectively prevent overfishing, consistent with the goals and objectives of this action.

None of the viable alternatives (Alternative 2a, Alternatives 3a and 3b, and Alternatives 4a and 4b) could potentially have less of an impact on fisheries than the Council's recommended alternative, 2b. Table 1-34 in the IRFA (see ADDRESSES) provides a comparison of the potential impacts on directly regulated small entities, in terms of gross revenue at risk, under each of the alternatives. Based on the best available scientific data and information, there are no alternatives to the proposed action that have the potential to accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes and that have the potential to minimize any significant adverse economic impact of the proposed rule on directly regulated small entities.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries

Dated: November 20, 2014.

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 679 as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

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

Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Public Law 108-447; Public Law 111-241

2. In § 679.22, revise paragraph (a)(6) to read as follows:

§ 679.22

Closures.

(a) * * *

(6) Pribilof Islands Habitat Conservation Zone. Directed fishing for groundfish using trawl gear and directed fishing for Pacific cod using pot gear is prohibited at all times in the area defined in Figure 10 to this part as the Pribilof Islands Habitat Conservation Zone.

* * * * *

3. Revise Figure 10 to part 679—including the Figure heading—to read as follows: