Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes regulations to implement Amendment 100 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) and Amendment 91 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). This proposed action would add regulations to improve reporting of grenadiers, limit retention of grenadiers, and prevent direct fishing for grenadiers by federally permitted groundfish fishermen and is necessary to limit and monitor the incidental catch of grenadiers in the groundfish fisheries. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMPs, and other applicable law.

DATES:

Comments must be received no later than June 13, 2014.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2014-0023, by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0023 ,, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

Electronic copies of Amendment 100 to the BSAI FMP, Amendment 91 to the GOA FMP, and the Environmental Assessment, the Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) (collectively, Analysis) prepared for this action are available from www.regulations.gov or from the NMFS Alaska Region Web site at alaskafisheries.noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS and by email to OIRA_Submission@omb.eop.gov or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:

Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fisheries in the exclusive economic zone of the GOA and BSAI under the GOA FMP and BSAI FMP (collectively, the FMPs). The North Pacific Fishery Management Council (Council) prepared these FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The Council has submitted Amendment 100 to the BSAI FMP and Amendment 91 to the GOA FMP for review by the Secretary of Commerce, and a Notice of Availability of this amendment was published in the Federal Register on May 5, 2014) 79 FR 25558) with comments invited through July 7, 2014. All relevant written comments received by the end of the applicable comment period, whether specifically directed to the FMP amendments, this proposed rule, or both, will be considered in the approval/disapproval decision for these amendments and addressed in the response to comments in the final decision.

Background

The groundfish fisheries in the BSAI and GOA incidentally catch grenadiers (family Macrouridae) while harvesting target groundfish. For many years, the Council has considered how best to classify grenadiers in the FMPs. As explained in the Analysis (see ADDRESSES), from 1980 to 2010, grenadiers were included in the FMPs in the nonspecified species category. Nonspecified species were defined as a residual category of species and species groups of no current or foreseeable economic value or ecological importance, which are taken in the groundfish fishery as incidental catch and are in no apparent danger of depletion, and for which virtually no data exists that would allow population assessments.

In 2010, the Council recommended and NMFS removed the nonspecified species category from the FMPs when the FMPs were revised to meet Magnuson-Stevens Act requirements for annual catch limits (ACLs) and accountability measures (AMs) under Amendment 96 to the BSAI FMP and Amendment 87 to the GOA FMP (Amendments 96/87, 75 FR 38454, July 2, 2010). The nonspecified species, including grenadiers, were removed from the FMPs because these species were too poorly understood to set ACLs and AMs or to develop a management regime.

Amendments 96/87 also amended the FMPs to organize the species remaining in the FMPs according to the National Standard 1 guidelines (50 CFR 600.310). In the National Standard 1 guidelines NMFS recommends two categories for species in an FMP: “stocks in the fishery” and “ecosystem component (EC) species.”

“Stocks in the fishery” are defined in the National Standard 1 guidelines (§ 600.310(d)(2)). “Stocks in the fishery” include (1) stocks that are targeted, and retained for sale or personal use; (2) stocks that are not directly targeted but are taken incidentally in other directed fisheries, and are retained for sale or personal use; or (3) stocks not targeted or retained but are taken as incidental catch and for which overfishing or overfished status may be a concern.

NMFS created the EC species category to encourage ecosystem approaches to management and to incorporate ecosystem considerations for species that are not “stocks in the fishery” (74 FR 3178, January 16, 2009). EC species are defined in the National Standard 1 guidelines (§ 600.310(d)(5)). In order to be designated an EC species, the species or species group should be (1) a non-targeted species or species group; (2) not subject to overfishing, overfished, or approaching an overfished condition; (3) not likely to become subject to overfishing or overfished in the absence of conservation and management measures; and (4) not generally retained for sale or personal use.

Amendments 96/87 established the EC category and designated prohibited species (which include salmon, steelhead trout, crab, halibut, and herring) and forage fish (as defined in Table 2c to part 679 and § 679.20(i)) as EC species in the FMPs. For EC species, NMFS maintained conservation regulations applicable to the specific EC species. These include prohibiting the retention of prohibited species, prohibiting directed fishing for forage fish, and establishing a limit on the incidental harvest of forage fish while directed fishing for other groundfish species, known as a maximum retainable amount, of 2 percent. Regulations at 50 CFR 679.2 define the term “directed fishing.” Regulations at § 679.20(e) describe the application and calculation of maximum retainable amounts.

When the Council recommended Amendments 96/87, it recognized that as information on a nonspecified species improves, it would consider moving that species back into the FMP, either as a “stock in the fishery” or as an EC species. In 2010, the Council initiated an analysis to consider moving grenadiers back into the FMPs. The Council determined that sufficient information exists for grenadiers to address them in the FMPs, as reflected in the Analysis prepared for this action (see ADDRESSES). The Analysis provides the best available information on grenadiers and considers two action alternatives: Include grenadiers in the FMP as an EC species, or include grenadiers in the FMP as a “stock in the fishery.”

Amendments 100/91 to the FMPs

In February 2014, the Council voted unanimously to recommend Amendments 100/91 to the FMPs to add grenadiers to the EC category in the FMPs. The Council and NMFS recognized that adding grenadiers to the FMPs in the EC category would acknowledge their role in the ecosystem and limit the groundfish fisheries' impact on grenadiers. Adding grenadiers to the EC category would allow for improved data collection and catch monitoring appropriate for grenadiers given their abundance, distribution, and catch. The Council and NMFS determined that grenadiers are not a “stock in the fishery” because (1) grenadiers are not a target stock; (2) they are not generally retained for sale or personal use; and (3) they are not overfished, subject to overfishing, or approaching an overfished or overfishing status. The following information describes why grenadiers would be appropriate to include in the FMPs as an EC species group based on information summarized from the Analysis.

Grenadiers are not a targeted species group and are not generally retained for sale or personal use. Grenadiers have no current or foreseeable economic value. Section 3.3 of the Analysis explains that grenadiers are incidentally caught in deep water trawl and hook-and-line fisheries, but are not actively targeted or retained. In 2013, there was almost no reported retention of grenadiers in the BSAI (only 1 metric ton (t) or 2,205 pounds (lb)), and only 55 t (121,254 lb) of grenadiers were retained in the GOA. This represents a GOA fishery-wide retention rate of less than one half of one percent. Of this retention of grenadiers, 35 t (77,162 lb) was made into fish meal, 17 t (37,479 lb) was discarded at the dock, 3 t (6,614 lb) was retained for bait, and less than 1 t (2,205 lb) was sold. Thus, there is no evidence that grenadiers are presently being targeted or purposely retained. It is likely that grenadiers are being retained only when mixed with other catch.

Grenadiers are not generally retained for sale or personal consumption. As explained in Section 3.3.4 of the Analysis, attempts in Alaska to create a marketable product from giant grenadiers have been unsuccessful. Grenadiers have very low protein content, high moisture content, and are generally regarded as mushy and unpalatable. No current market exists for grenadiers, and it is unlikely that one will be developed in the foreseeable future.

Grenadiers are not generally retained for personal use. A small portion of the total catch of grenadiers is known to be retained for use as bait (e.g., 3 t (6,614 lb) in the GOA in 2013). Although grenadiers may be retained for use as bait in hook-and-line fisheries, there is no indication that this is a general practice throughout the hook-and-line fleets. NMFS notes that existing recordkeeping and reporting for the use of grenadiers is voluntary, and could underestimate the amount of grenadiers used for bait. However, the best available information indicates that grenadiers are not generally retained for bait.

At the current level of catch, grenadiers are not subject to overfishing, overfished, or approaching an overfished condition, and are not likely to become subject to overfishing or overfished in the absence of conservation and management measures. Section 3.2 of the Analysis explains that NMFS has been conducting a stock assessment for grenadiers since 2006. At present, stock assessment information for giant grenadier is relatively good compared to many other non-target species off Alaska. Since 2010, the stock assessment has been used to estimate an acceptable biological catch (ABC) and an overfishing level (OFL), using reliable estimates of biomass and natural mortality. Giant grenadier served as a proxy for the grenadier species group and the estimated ABC and estimated OFL are based on giant grenadier (Albatrossia pectoralis) because relatively few other grenadier species (family Macrouridae) are caught in the groundfish fisheries or are taken in NMFS surveys. NMFS estimates the incidental catch of grenadiers in the groundfish fisheries using observer data. In the BSAI, the estimated grenadier OFL is 135,236 t (298 million lb) and the estimated catch is 5,294 t (12 million lb, mean for 2003-2013). In the GOA, the estimated grenadier OFL is 46,635 t (103 million lb) and the estimated catch is 8,707 t (19 million lb, mean for 2003-2013).

Additionally, the Council recognized that adding grenadiers to the FMPs in the EC category would acknowledge their role in the ecosystem and limit the groundfish fisheries' impact on grenadiers. Section 3.6 of the Analysis describes the current state of research and understanding about the ecological importance of grenadiers. For example, giant grenadiers have an important ecological role given their role as apex predators. Apex predators reside at the top of their food chain and have few to no predators of their own. In bottom trawl surveys conducted by NMFS in the Bering Sea and the GOA, giant grenadiers are the most abundant fish, in terms of weight, in depths from 600 to 3,000 feet (183-914 meters). Giant grenadier extend much deeper than 3,000 feet (914 meters). There are reports that they have been caught deeper than 6,000 feet (1,829 meters), but little is known about their abundance in waters deeper than 3,000 feet because neither the NMFS surveys nor fishing effort presently extend below this depth.

Proposed Rule

In addition to adding grenadiers as an EC in the FMPs under Amendments 100/91, the Council recommended and NMFS proposes regulations for groundfish fishery participants to limit and monitor the catch of grenadiers. This proposed rule would:

• Require recordkeeping and reporting of grenadiers in the BSAI and GOA groundfish fisheries;
• Add two grenadier species codes;
• Add grenadier product recovery rates (PRRs);
• Prohibit directed fishing for grenadiers; and
• Establish a grenadier maximum retainable amount (MRA) of 8 percent.

To require recordkeeping and reporting, this proposed rule would make changes to 50 CFR part 679. This proposed rule would add a definition for grenadiers and revise the definition for non-allocated or nonspecified species at § 679.2. This proposed rule would also modify regulations at § 679.5 to require a vessel operator or manager in a BSAI or GOA groundfish fishery to record and report retained and discarded grenadier catch. NMFS notes that this proposed regulation would be expected to improve the collection of information on the catch and retention of grenadiers. Specifically, this proposed regulation would improve the ability for NMFS to monitor the retention of grenadiers for use as bait, or in the unlikely event that grenadiers are retained for sale.

NMFS would modify regulations in Table 2c to part 679 to add two grenadier species codes so that NMFS could track the retention of giant grenadiers and other grenadier species. NMFS would remove grenadiers from Table 2d to part 679. Section 2 of the Analysis notes that nearly all grenadiers encountered in the groundfish fisheries are giant grenadiers; therefore, it is not necessary to establish more than two species codes for grenadiers (one for giant grenadiers and one for all other grenadier species) to provide the information necessary to adequately monitor grenadier catch.

This proposed rule would modify Table 3 to part 679 to include PRRs for grenadiers of 100 percent for whole fish, 50 percent for headed and gutted fish, and 24.3 percent for fillets. These PRRs are established based on food science studies of grenadiers that estimated product recovery rates (see Section 3.3.4 of the Analysis for additional detail).

These proposed regulatory changes would enable NMFS to collect data on the harvest and disposition of grenadier catch retained in the groundfish fisheries. The proposed changes in recordkeeping and reporting, definition of grenadier species codes, and grenadier PRRs would aid NMFS in determining if grenadiers become generally retained for sale or personal use, and would provide the information needed in any potential future consideration to modify the designation of grenadiers in the FMPs as a “stock in the fishery.”

This proposed rule would revise regulations at § 679.20(i) and§ 679.22(i) to prohibit directed fishing for grenadiers at all times in the BSAI and GOA groundfish fisheries. NMFS proposes prohibiting directed fishing as a precautionary measure to prevent groundfish fishermen from directed fishing for grenadiers without a clear and conscious decision by the Council to provide that opportunity. This prohibition is consistent with the regulations for other EC species. NMFS prohibits directed fishing for forage fish and prohibits retaining or possessing prohibited species, except as provided under the Prohibited Species Donation Program. As noted in Section 4.6 of the Analysis, prohibiting directed fishing would prevent the development of an uncontrolled fishery on grenadiers in the absence of applicable management measures.

This proposed rule would add a grenadier incidental catch species MRA of 8 percent to Table 10 to part 679 and Table 11 to part 679. The MRA is the percentage of the retained catch of a species closed for directed fishing (incidental catch species) to the retained catch of a species open for directed fishing (basis species). An 8 percent MRA would allow vessels fishing for groundfish to retain a quantity of grenadiers equal to but no more than 8 percent of the round weight or round weight equivalent of groundfish species open to directed fishing that are retained on board the vessel during a fishing trip. The requirement to not exceed MRA proportions at any time during a trip limits the vessel operators' ability to maximize incidental catch of grenadiers.

Section 2.2 of the Analysis provides additional detail on MRA management. The Council and NMFS considered a range of MRA percentages of 2 to 20 percent for grenadiers. The Council recommended and NMFS agrees that an 8 percent MRA is not likely to substantially increase the incentive for vessels to retain grenadiers relative to a lower MRA percentage (e.g., 2 percent), but would limit the amount of incidental catch more conservatively than a higher MRA percentage (e.g., 20 percent). Given the lack of any market for grenadiers, NMFS has no indication that grenadier retention is likely to increase beyond current levels. Section 2.2 of the Analysis notes that a de minimus amount of grenadiers are retained in the BSAI, and only 0.1 percent of all groundfish fishing trips in the GOA would be expected to exceed an MRA of 8 percent. Therefore, an MRA of 8 percent would be expected to accommodate all current fishing practices and, if a market should develop, this MRA would limit the potential retention of grenadiers until the Council and NMFS could develop measures to manage grenadiers appropriately.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP amendments, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

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

Regulatory Impact Review (RIR)

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. The RIR considers all quantitative and qualitative measures. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendments 100/91 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the initial regulatory flexibility analysis section.

Initial Regulatory Flexibility Analysis (IRFA)

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the SUPPLEMENTARY INFORMATION section of the preamble and are not repeated here. A summary of the IRFA follows. Copies of the IRFA are available from NMFS (see ADDRESSES).

Number and Description of Small Entities Regulated by the Proposed Action

In the GOA, NMFS estimates that there are a total of 1,114 small catcher vessels and 5 small catcher/processors. The majority of these (581) are catcher vessels in the hook-and-line gear sector. In the BSAI, NMFS estimates that there are 118 small catcher vessels and 7 small catcher/processors. NMFS estimates that 72 small shoreside processors would be directly regulated by this action. This number includes entities located in both the BSAI and GOA, as some groundfish may be caught in one area and delivered to the other. Thus, NMFS estimates that the total number of small entities that would be directly regulated by this action is 1,316 small entities (1,232 catcher vessels, 12 catcher/processors, 72 shoreside processors).

Description of Significant Alternatives that Minimize Adverse Impacts on Small Entities

The two aspects of this proposed rule that directly regulate small entities are the requirement to report grenadier catch under regulations at § 679.5(a)(3) and the requirement that vessels not exceed an MRA of 8 percent, under regulations at Tables 10 and 11 to part 679. These requirements would have a de minimus economic impact on small entities, as explained in Section 5.7 of the Analysis. The reporting requirements were the same under all of the action alternatives.

The Council considered an MRA range of 2 percent to 20 percent, ultimately choosing an 8 percent grenadier MRA. The Council selected an 8 percent MRA to accommodate the current amount of grenadiers incidentally caught. The Council considered that there are very few instances when grenadier retention exceeds 8 percent; however, allowing a higher MRA of as much as 20 percent may not meet the objectives of providing precautionary management and placing limits on harvest, as identified in the purpose and need for the action.

Thus, there are no significant alternatives that would accomplish the objectives of accounting for grenadier catch or MRA management and minimize adverse economic impacts on small entities.

Duplicate, Overlapping, or Conflicting Federal Rules

NMFS has not identified any duplication, overlap, or conflict between this proposed action and existing Federal rules.

Recordkeeping and Reporting Requirements

The proposed rule would modify the recordkeeping and reporting requirements of the vessels and processors participating in the BSAI and GOA groundfish fisheries.

Presently, NMFS requires catcher vessel operators, catcher/processor operators, buying station operators, mothership operators, shoreside processor managers, and stationary floating processor managers to record and report all FMP species in logbooks, forms, eLandings, and eLogbooks. Recording is optional for non-FMP species. Grenadiers are currently listed as non-FMP species.

The proposed rule would amend regulations to change the status of grenadiers (giant grenadiers and other grenadiers) from non-FMP species to FMP species and require operators to record and report grenadier species in logbooks, forms, eLandings, and eLogbooks. If operators retain and land grenadiers, then landings and disposition would be reported on fish tickets and production reports.

Collection-of-Information Requirements

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by Office of Management and Budget (OMB) under OMB Control Number 0648-0213 (paper recordkeeping and reporting) and OMB Control Number 0648-0515 (electronic recordkeeping and reporting). However, this rule only mentions these collections and does not change either collection-of-information.

Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSEES) and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

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 679

• Alaska
• Fisheries
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for 50 CFR part 679 continues to read as follows:

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

2. In § 679.2, add a definition for “Grenadiers” in alphabetical order and revise the definition for “Non-allocated or nonspecified species” to read as follows:

3. In § 679.5, revise paragraph (a)(3) introductory text, and paragraphs (c)(3)(vi)(F) and (c)(4)(vi)(E) to read as follows:

4. In § 679.20, revise paragraph (i) to read as follows:

5. In § 679.22, add paragraph (i) to read as follows:

6. Revise Table 2c to part 679 to read as follows:

10. Revise Table 2d to part 679 to read as follows:

11. Revise Table 3 to part 679 to read as follows:

12. Revise Table 10 to part 679 to read as follows:

13. Revise Table 11 to part 679 to read as follows: