[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Rules and Regulations]
[Pages 21639-21647]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08732]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 130808694-4318-02]
RIN 0648-BD37


Fisheries off West Coast States; Pacific Coast Groundfish Fishery 
Management Plan; Commercial Groundfish Fishery Management Measures; 
Rockfish Conservation Area Boundaries for Vessels Using Bottom Trawl 
Gear

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

ACTION: Final rule.

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SUMMARY: This final rule will implement revisions to the boundaries of 
the Rockfish Conservation Area (RCA) that is currently closed to 
vessels fishing groundfish with bottom trawl gear. This rule will 
affect the limited entry bottom trawl sector managed under the Pacific 
Coast Groundfish Fishery Management Plan (FMP) by liberalizing RCA 
boundaries to improve access to target species.

DATES: Effective on April 17, 2014.

ADDRESSES: NMFS prepared a Final Regulatory Flexibility Analysis 
(FRFA), which is summarized in the Classification section of this final 
rule. NMFS also prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for the proposed rule. Copies of the IRFA, FRFA the Small Entity 
Compliance Guide, and the Environmental Assessment (EA) NMFS prepared 
for this action are available from the NMFS West Coast Regional Office: 
William W. Stelle, Jr., Regional Administrator, West Coast Region, 
NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Colby 
Brady. This final rule also is accessible via the Internet at the 
Federal eRulemaking portal at http://www.regulations.gov, identified by 
NOAA-NMFS-2013-0134, or at the Office of the Federal Register Web site 
at http://www.access.gpo.gov. Background information and documents, 
including electronic copies of the Final Regulatory Flexibility 
Analysis (FRFA) prepared for this action may are available at the NMFS 
West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management.html and at the Council's Web site at http://www.pcouncil.org.

[[Page 21640]]


FOR FURTHER INFORMATION CONTACT: Colby Brady, 206-526-6117; (fax) 206-
526-6736; Colby.Brady@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    Since 2002 NMFS has used large-scale, depth-based closures to 
reduce catch of overfished groundfish, while still allowing the harvest 
of healthy stocks to the extent possible. RCAs are gear specific 
closures, and apply to vessels that take and retain groundfish species. 
Through this final rule, NMFS is changing portions of the boundaries 
defining the RCA that is closed to vessels fishing for groundfish with 
bottom trawl gear, or the ``trawl RCA.'' This rule will not change how 
the trawl RCA applies to vessels fishing for groundfish using bottom 
trawl gear; rather, it will only change the boundaries of the trawl 
RCA.
    This final rule implements the RCA boundary modifications as 
recommend by the Pacific Fishery Management Council (Council), and as 
proposed at 78 FR 56641 (September 13, 2013), with the exception of the 
seaward boundary change between 45[deg]46' N. lat. and 40[deg]10' N. 
lat. NMFS originally proposed moving the seaward boundary line between 
45[deg]46' N. lat. and 40[deg]10' N. lat. from a line approximating 200 
fathoms (fm) (366-m) to a line approximating 150 fm (274-m), during 
periods 1-6 (note that the ``modified 200 fm (366-m)'' line, which is a 
version of the 200 fm (366-m) line modified to increase access to 
stocks such as petrale sole, is currently in place in periods 1 and 6). 
However, after considering comments received on the proposed rule and 
the record as a whole, NMFS has determined that there is an 
insufficient basis to proceed with the seaward boundary change between 
45[deg]46' N. lat. and 40[deg]10' N. lat. prior to the conclusion of 
the Council's groundfish Essential Fish Habitat (EFH) review. 
Therefore, as explained more fully below, this rule maintains the 
seaward trawl RCA boundary between 45[deg]46' N. lat. and 40[deg]10' N. 
lat. as currently established through the 2013-2014 harvest 
specifications and management measures. 78 FR 580 (January 3, 2013). 
The remaining boundary changes are implemented as proposed.
    A detailed description of the trawl RCA boundaries that NMFS 
proposed, and the alternative boundaries that NMFS considered in the 
EA, can be found in the proposed rule 78 FR 56641 (September 13, 2013), 
and in the tables below. The changes from the proposed rule are 
discussed more fully in the section titled ``Changes from Proposed 
Rule.''
[GRAPHIC] [TIFF OMITTED] TR17AP14.011

[GRAPHIC] [TIFF OMITTED] TR17AP14.012

Changes From the Proposed Rule

    As mentioned above, the only change from the proposed rule is 
maintaining the status quo seaward boundary line between 40[deg]10' N. 
latitude to 45[deg]46' N. latitude. This final rule implements trawl 
RCA boundaries as follows, and as reflected in table 4:
     Shoreward 100 fm (183-m)(year-round) between 40[deg]10' N. 
latitude to 48[deg]10' N. latitude, and;
     Seaward 150 fm (274-m)(year-round) north of 45[deg]46' N. 
latitude to 48[deg]10' N. latitude, and;
     Seaward 200 fm (366-m) between 40[deg]10' N. latitude to 
45[deg]46' N. latitude during periods 2-5, and modified 200 fm (366-m) 
in periods 1 and 6 (i.e., status quo).

[[Page 21641]]

[GRAPHIC] [TIFF OMITTED] TR17AP14.013

    As described in the proposed rule, in addition to the Council 
recommended boundaries, NMFS considered and requested comments on 
alternative boundaries that were somewhat different from what the 
Council recommended in April 2013. The alternative trawl RCA boundaries 
would have been the same as the Council's recommended trawl RCA 
boundaries, except that they would have kept closed the area between 
the boundary line approximating the 150 fm (274-m) depth contour and 
the boundary line approximating the modified 200 fm (366-m) depth 
contour off Southern Oregon and Northern California (between 40[deg]10' 
N. latitude to 45[deg]46' N. latitude); this area has been largely 
closed to groundfish bottom trawling since 2004 and would have been 
opened under the initial recommendations of the Council from its April 
2013 meeting.
    At the Council's September 12-17, 2013 meeting in Boise, Idaho, 
NMFS consulted with the Council and provided additional information 
from the draft EA regarding the alternative boundaries. After 
considering the information NMFS presented, reports from the Council's 
advisory bodies, and public comment, the Council reaffirmed its 
recommendation to modify the trawl RCA boundaries as originally 
proposed.
    After reviewing public comment on the proposed rule, information 
being developed through the Council's groundfish EFH review, the 
Council's recommendations, and the EA for this action, NMFS has 
determined that there is an insufficient record to conclude that the 
seaward boundary modification between 45[deg]46' N. lat. and 40[deg]10' 
N. lat., as originally proposed, minimizes adverse effects on 
groundfish EFH caused by fishing to the extent practicable. Therefore, 
NMFS is not implementing that seaward boundary change at this time.
    NMFS and the Council initially established trawl RCAs to minimize 
catch of overfished species while still allowing the harvest of target 
stocks to the extent possible. Despite the fact that the trawl RCAs 
were not established to serve as habitat protection, the seaward areas 
between 45[deg]46' N. lat. and 40[deg]10' N. lat., between the 150 fm 
(274-m) and modified 200 fm (366-m) lines have largely been closed 
since 2004. The EA for this action indicates that this is the only 
large-scale area that would be opened under the originally proposed 
boundaries where benthic habitats may have, to some extent, recovered 
from previous groundfish bottom trawling impacts.
    The Council's ongoing groundfish EFH review will likely address 
whether any changes to EFH designations or measures to minimize adverse 
effects to the extent practicable are warranted. This includes 
consideration of whether areas currently closed year-round to 
groundfish bottom trawling by the RCAs should receive additional 
protection through management measures designed to minimize to the 
extent practicable adverse effects on groundfish EFH caused by fishing. 
During the public comment period for the proposed rule, it became 
evident that some of the groundfish EFH proposals that may be 
considered by the Council during its review include proposals for new 
EFH conservation areas within the portion of the RCA that has 
essentially been closed to groundfish bottom trawling year-round since 
2004. In light of that information, opening year-round closed areas to 
groundfish bottom trawling now, before the merits of those proposals 
have been considered and additional progress has been made on the 
groundfish EFH review, is premature. This final rule will only increase 
year-round access to areas that are already open to bottom trawling at 
some times during the year. NMFS and the Council have yet to determine 
whether groundfish EFH changes are warranted or practicable, but at its 
November 2013 and March 2014 meetings, the Council indicated its intent 
to continue with the EFH review process.
    This final rule will increase year-round groundfish bottom trawl 
access to approximately 2,389 square miles of fishing grounds in a 
fishery where participants are motivated by Individual Fishing Quota 
(IFQ) to keep bycatch of overfished species low, irrespective of trawl 
RCA boundaries. The increased access may enable higher attainment of 
available quota pounds for several valuable species that are currently 
not fully harvested, while still protecting overfished rockfish 
species.
    The trawl RCA boundaries being implemented are expected to have a 
favorable economic impact on groundfish fishing vessels and for 
businesses and ports where groundfish are landed. The benefits of not 
opening the upper slope area between 45[deg]46' N. lat. and 40[deg]10' 
N. lat., compared to the majority of areas that will be opened are 
unknown at this time. Accordingly, the potential cost and safety 
benefits and the increased access to target stocks on the slope would 
be somewhat reduced as compared to the proposed boundaries. However, it 
would still be an overall improvement compared to not making any 
changes.
    Finally, NMFS notes that at the Council's September 2013 meeting 
several industry groups and environmental nongovernmental organizations 
submitted a joint letter indicating their intent to collaborate on long 
term RCA proposals (Agenda Item G.9.d, Supplemental Public Comment 2). 
That effort, coordinated with the ongoing EFH review, could provide one 
option for considering the catch control aspects of RCAs along with the 
habitat aspects, potentially yielding increased access to fishing 
grounds while continuing to protect areas with extremely sensitive 
habitat or unacceptably high bycatch risks.

Comments and Responses

    NMFS solicited public comment on the trawl RCA proposed rule (78 FR 
56641, September 13, 2013). The comment period ended October 15, 2013. 
NMFS received five letters of comments on the proposed rule submitted 
by individuals or organizations.
    Comment 1: Bottom trawl gear should be declared illegal. Trawl gear 
exacerbates the problem of whales and other large ocean fish becoming 
entangled in lines. Instead of opening

[[Page 21642]]

the trawl RCAs, NMFS should consider expanding them.
    Response: This rule does not affect the types bottom trawl gear 
allowed in the Pacific coast groundfish fishery, it only affects where 
vessels may fish with that gear. NMFS disagrees with the commenter that 
bottom trawl gear should be declared illegal. Bottom trawl gear is 
particularly efficient at targeting high volumes of species such as 
various flatfish (e.g., dover sole, English sole), roundfish such as 
Pacific cod, and other healthy bottom dwelling species such as 
thornyhead species; all of which are more inefficiently harvested with 
other groundfish gears. Therefore, groundfish bottom trawl gear can 
offer substantial benefits to the Nation in terms of providing 
consistent healthy protein supply and economic benefits when carefully 
managed. In addition, entanglements with marine mammals or other large 
ocean fish are comparatively rare in the groundfish bottom trawl 
fishery. For example, the groundfish bottom trawl fishery is considered 
a Category III fishery under the Marine Mammal Protection Act, 
indicating a remote likelihood of or no known serious injuries or 
mortalities to marine mammals. See 78 FR 73477 (December 6, 2013), 
which may have been updated prior to publication of this final rule.
    With respect to expanding RCAs, NMFS notes that expansion of trawl 
RCAs continues to be an option available to the Council and NMFS 
through inseason modifications to the Code of Federal Regulations if 
needed. However, the purpose of this rule includes increasing access to 
target stocks, not reducing access.
    Comment 2: The rule as proposed (Alternative 1) provides increased 
access to target stocks and better achieves optimum yield, consistent 
with National Standard 1 of the Magnuson Stevens Fishery Conservation 
and Management Act (MSA). The rule as proposed will provide vessels 
opportunities seaward of the RCAs to catch target species, primarily 
Dover Sole.
    Response: NMFS agrees that the Council's recommendation as 
contained in the proposed rule would provide IFQ vessels fishing with 
bottom trawl gear increased access to target species catch, including 
Dover sole. However, even in the most uninhibited regulatory scenarios, 
attainment of all groundfish ACLs is affected by natural inter-annual 
ecosystem changes, market priorities, and other business realities. 
This final rule will still allow some increased opportunities seaward 
of the RCA North of 45[deg]46' N. latitude, will liberalize all of the 
shoreward RCA boundaries as recommended by the Council, and is 
consistent with National Standard 1. The trawl RCA boundaries being 
implemented are expected to have a favorable economic impact on 
groundfish fishing vessels and for businesses and ports where 
groundfish are landed. Moreover, additional refinements of RCA 
boundaries can still occur once habitat and other aspects associated 
with opening long-term RCA closures have been addressed.
    Comment 3: Under the IFQ program, the Pacific groundfish trawl 
fishery operates with enhanced monitoring and individual 
accountability. Bycatch of overfished species and discard of target 
species has decreased dramatically from pre-IFQ years, as noted by NMFS 
own scientists. Therefore the boundaries as proposed in the rule will 
not create problems with increased catch of overfished species. The 
risk of exceeding bycatch of overfished species is minimal given the 
draft EA results and the IFQ program. The chances of an overfished 
species ``lightning strike'' are slim to none, as evidenced by NMFS' 
trawl surveys, which fish in these areas and presumably do not try to 
avoid overfished species. If NMFS believes the IFQ system has not been 
responsible for reducing bycatch, then NMFS must immediately direct the 
Council to end the IFQ program.
    Response: NMFS agrees with the commenter that the IFQ program has 
been very effective at reducing bycatch of some overfished species. 
NMFS also agrees that increased bycatch of overfished species as a 
result of this rule, either as proposed or as implemented, is unlikely 
to result in exceeding annual catch limits. However, NMFS notes that at 
some point a large unanticipated tow of overfished species may occur, 
and management measures are in place for action should the Council and 
NMFS need to respond. Regarding NMFS' trawl surveys, although those 
vessels are not actively trying to avoid certain rockfish species, and 
survey activities have not resulted in high overfished species catch 
events that would threaten continued commercial activities, the 
scientific surveys have dramatically different aims than that of 
commercial vessels. Trawl surveys typically use 15 minute tows, while 
commercial bottom trawl gear deployments of 3-6 hours are common, and 
may even exceed that, in which case undesired bycatch events of 
overfished species may be more likely to occur.
    Comment 4: There is no reason to keep RCA areas closed until 
habitat areas of particular concern (HAPC) are modified. When the 
Council established its first groundfish HAPC designations, it included 
areas that had been subjected to extensive trawling. If the Council 
determines through the groundfish EFH review that all or a portion of 
the RCA that will be opened under this rule deserves additional 
protection, the Council can still do that later through the existing 
process. In addition, the RCA being considered in the proposed rule has 
been subject to trawling prior to the establishment of the RCA and 
restrictions on trawl gear use. The area has also been subject to 
fishing by other bottom contact gears and research surveys. This is not 
virgin wilderness that has been and should remain untouched. NMFS 
should implement the rule as proposed. Furthermore, EFH concerns are 
not the intent of RCAs, which were implemented to reduce catch of 
rebuilding rockfish stocks, and EFH should not be considered when 
deciding whether to liberalize RCAs.
    Response: NMFS agrees that benthic habitat that would be exposed to 
groundfish bottom trawling by opening the seaward areas between 
45[deg]46' N. lat. and 40[deg]10' N. lat. has likely been impacted to 
some degree in the past. NMFS further acknowledges that prior to the 
closure of these areas, substantially less restrictive trawl gear 
regulations were in place. Historical bottom trawl gear types were more 
destructive to sensitive habitat than current bottom trawl gear 
restrictions. Current restrictions have reduced incentives to deploy 
bottom trawl gear in hard and mixed substrate areas, particularly high-
relief hard pinnacle areas where the greatest abundance of sensitive 
biogenic habitat (corals and sponges) are found. NMFS also agrees that 
the seaward areas between 45[deg]46' N. lat. and 40[deg]10' N. lat. 
have been subject to fishing by other gear types and some limited 
trawling activity by NMFS' scientific surveys.
    Nevertheless, the seaward areas between 45[deg]46' N. lat. and 
40[deg]10' N. lat., between the 150 fm (274-m) and modified 200 fm 
(366-m) line have largely been closed to groundfish bottom trawling 
since 2004, and the other gear types and survey activities have 
relatively lower impacts to benthic habitats. The EA indicates that 
this area is more likely than others to have recovered from the impacts 
of groundfish bottom trawling. In fact, this area may currently have 
greater conservation value than portions of the actual ``core'' RCA 
(between the 100 fm and 150 fm lines, 183-m and 274-m). That core RCA 
has been closed to groundfish bottom trawling since at least 2003, but 
some of the areas are

[[Page 21643]]

currently impacted by pink shrimp bottom trawl gear, whereas the 
seaward areas between 45[deg]46' N. lat. and 40[deg]10' N. lat., 
between the 150 fm (274-m) and modified 200 fm (366-m) are not. The 
recovery estimates provided in the 2005 EFH Environmental Impact 
Statement and subsequent 2012 and 2013 EFH review reports (excluding 
coral and sponge regeneration/recovery time) support NMFS' conclusion 
that this area has had some opportunity to recover from trawling 
impacts.
    NMFS agrees that the trawl RCAs were implemented primarily to 
reduce the catch of rebuilding rockfish stocks by closing off areas to 
bottom trawl activity where those species of concern were found in 
higher densities or where larger bycatch events had previously 
occurred. However, when long term closures such as the seaward area at 
issue have allowed for some level of habitat recovery, NMFS must take 
that into account.
    While it is true that the Council and NMFS adopted EFH conservation 
areas through Amendment 19 encompassing habitat that had been 
previously been trawled, opening the seaward area between 45[deg]46' N. 
lat. and 40[deg]10' N. lat., between the 150 fm (274-m) and modified 
200 fm (366-m) line now has the potential to adversely impact habitat 
that has partially recovered, prior to the Council considering whether 
additional protections are warranted. Doing so could negate some of the 
recovery that has occurred. At its November 2013 meeting, the Council 
decided to move forward with phase III of its groundfish EFH review 
after determining that there was sufficient new information to warrant 
continuing evaluation of its existing groundfish EFH designations. 
Liberalizing the seaward RCA boundary between 40[deg]10' N. latitude 
and 45[deg]46' N. latitude, between the 150 fm (274-m) and modified 200 
fm (366-m), may ultimately be consistent with the Council's EFH 
responsibilities. This rulemaking did not address the question of 
whether any of the seaward areas between 45[deg]46' N. lat. and 
40[deg]10' N. lat. and the 150 fm (274-m) and modified 200 fm (366-m) 
lines, should ultimately receive additional protection through 
management measures designed to minimize, to the extent practicable, 
adverse effects on EFH from fishing. It did, however, highlight that 
additional analysis of this area is needed. Prior to the completion of 
the phase III review of EFH proposals, or additional consideration of 
whether practicable measures exist that could minimize impacts of 
bottom trawling between 40[deg]10' N. latitude and 45[deg]46' N. 
latitude and the 150fm (274-m) and modified 200fm (366-m) RCA lines, 
NMFS believes there is an insufficient basis to open this year-round 
closed area to bottom trawling.
    Comment 5: The proposed rule provides increased harvest 
opportunities consistent with National Standards 5, 7, and 8 by 
considering efficiency in the utilization of fishery resources, 
minimizing costs, and taking into account the importance of fishery 
resources to fishing communities. The costs for participating in the 
west coast groundfish fishery continue to increase with the pending 3 
percent cost recovery fee, the annual 5 percent buyback loan payments, 
state landing taxes, observer costs, and the possible implementation of 
the adaptive management program that could reduce 10 percent of the 
available quota pounds. Harvesters need the access to fishing grounds 
allowed by the rule as proposed.
    Response: NMFS is aware that fishermen have costs associated with 
the buyback repayment, state landing taxes, observer coverage, and cost 
recovery. However, participants in the IFQ program have already started 
realizing the benefits of the program even with these costs. 
Preliminary data from the mandatory economic data collection program 
compares data from 2009 and 2010 (pre-trawl rationalization) versus 
2011 (post-trawl rationalization) (see Agenda Item F.2 from the 
Council's June 2013 meeting), and shows that when looking at net 
revenue, the fleet is still profitable even with increased costs (e.g., 
high fuel prices, observer costs). However, with only one year of data 
post-trawl rationalization, it is too early to make conclusions on the 
economic benefits of the program.
    While buyback loan repayment is a cost to industry, the harvesters 
that remained and are now in the Shorebased IFQ program have benefitted 
from the buyback program. NMFS also understands that fishermen are 
petitioning Congress to approve legislation that would refinance the 
buyback loan, extending the term of the loan and capping the fee rate 
at three percent of ex-vessel value, down from five percent.
    NMFS is evaluating whether electronic monitoring could reduce the 
cost of monitoring the fishery. With respect to the adaptive management 
program, it is unclear at this time how it will be structured or affect 
the fleet. Ultimately, this final rule will increase access to fishing 
grounds and is consistent with the National Standards.
    Comment 6: The potential for gear conflicts resulting from 
liberalized RCAs was an issue raised at the Council's September 2013 
meeting. However, fishing gears of various types are already in use 
throughout the area currently open to fishing with no indication that 
extensive gear conflicts are occurring. Allowing trawling in deeper 
water on the continental shelf out to 100 fathoms instead of the 
current 75 fathoms could actually reduce gear conflicts because there 
would be more area for vessels to operate.
    Response: The Groundfish Advisory Subpanel and Groundfish 
Management Team considered the possibility of gear conflicts at the 
September 2013 Council meeting. By increasing the areas available to 
trawlers, including the deeper water on the continental shelf out to 
100 fathoms, this final rule could potentially reduce concentration of 
gear between the trawl and fixed gear sectors in the areas where they 
currently overlap. Additionally, the shoreward boundary change could 
potentially reduce gear conflicts between crab and groundfish bottom 
trawl vessels. During public comment under this agenda item at the 
September Council meeting, trawl and fixed gear industry 
representatives commented and agreed with the above-mentioned 
assumptions. Any ancillary gear conflict consequences that might result 
from implementation of RCA boundary changes through this rule could 
likely be avoided through increased communications among vessels.
    Comment 7: Alternative 2 in the EA falls short of providing 
meaningful access to healthy target species while the risks associated 
with both alternatives are virtually the same. The rule as proposed 
provides increased access to currently closed trawl RCA areas in a 
manner that allows trawl IFQ fishermen to continue to demonstrate the 
benefits of 100 percent accountability of catch and discards. Trawl 
RCAs are a relic of pre-IFQ management.
    Response: NMFS agrees that trawl RCAs are to some extent a relic of 
pre-IFQ trawl fishery management, which depended largely on trip limits 
and area closures to control catch in the groundfish trawl fishery. On 
the other hand, RCAs can still serve as an additional tool for 
controlling catch in areas with unacceptably high bycatch risks. NMFS 
also agrees that increased access to currently closed trawl RCA areas 
allows trawl IFQ fishermen to continue to demonstrate the benefits of 
the program, including individual accountability of catch and discards.
    However, NMFS disagrees that the trawl RCA boundaries implemented 
through this final rule fall short of

[[Page 21644]]

providing meaningful access to healthy target species. This final rule 
provides approximately 2,389 square miles of additional year-round 
access to groundfish compared to taking no action (similar to 
Alternative 2 considered in the EA, which provide increased year-round 
access to approximately 2,600 square miles). This is still a meaningful 
increase in access to fishing grounds. Both the rule as proposed and 
the boundaries as implemented would provide more benefit than the no-
action alternative. This increased access should provide greater access 
to healthy groundfish stocks, which could improve efforts to more fully 
attain harvest levels. The Council and NMFS can still consider 
additional modifications to trawl RCA boundaries in the future in 
manner that addresses the catch control aspects of RCAs along with the 
habitat aspects.
    With respect to the risks associated with the different trawl RCA 
boundary configurations, NMFS notes that while the EA determined that 
the boundaries as proposed presented relatively little risk of greatly 
increased overfished species catch, the trawl RCA boundaries 
implemented through this final rule would not increase access beyond 
the seaward line of the current RCA between 45[deg]46' N. lat. and 
40[deg]10' N. lat. Therefore, to the extent there are any increased 
impacts to overfished species by opening new fishing areas, they are 
expected to be lower in frequency and magnitude under this final rule, 
particularly for slope species, than under the proposed action.
    Comment 8: NMFS should not implement the rule as proposed. The 
draft EA makes several erroneous assertions about past impacts to 
benthic habitat, arguing that the degraded baseline state of the 
benthic environment means that the impacts from opening the RCA to 
groundfish bottom trawling will be relatively lower. Illegal incursions 
into the RCA, fishing by other gears and fisheries, NMFS' trawl 
surveys, and pre-RCA trawling do not mean that the rule as proposed 
will have insignificant impacts. Most of these activities are 
relatively less harmful to benthic habitat, but trawl nets still bring 
up sponges and corals even in areas frequently trawled, as evidenced by 
NMFS West Coast Groundfish Observer Program (WCGOP) bycatch data.
    Response: NMFS disagrees that prior impacts to benthic habitat in 
the RCAs are irrelevant to assessing the state of the affected 
environment and the types of impacts that could be anticipated from 
opening up areas to groundfish bottom trawling. The EA demonstrates 
that various activities have impacted benthic habitat in the past, 
including those activities mentioned by the commenter. NMFS agrees that 
fixed gear is generally ranked lower with respect to overall benthic 
habitat impacts when compared to bottom trawl gear. However, fixed gear 
is particularly adept at accessing some rocky areas such as hard/mixed 
rocky pinnacles with substantially less risk of damage to fishing gear, 
as compared to bottom trawl gear. Fixed gear impacts, in practice, can 
be greater in areas that bottom trawl vessels actively avoid or are 
considered untrawlable. NMFS also notes that although coral and sponges 
are present in trawlable habitat of all substrate types (soft, medium, 
hard), the magnitude of coral and sponges generally increases in hard 
areas that are untrawlable, and in which other fixed gear types are 
actively engaged in fishing activities.
    Ultimately, recognizing the degree of previous and ongoing impacts 
to benthic habitat within the RCA boundaries under consideration 
contributed to NMFS' conclusion that the upper slope area should remain 
closed, at least until additional groundfish EFH consideration has 
occurred. The area between 40[deg]10' N. latitude and 45[deg]46' N. 
latitude and the 150fm (274-m) and modified 200fm (366-m) RCA lines has 
not been trawled in almost a decade by groundfish bottom trawl gear, 
and in practice is not trawled by pink shrimp trawl gear. As such, this 
area has at least partially recovered from the relatively more 
substantial trawl impacts, despite still being subjected to fixed gear 
effort and occasional research trawls or inadvertent incursions.
    In addition, while intensive trawling from the 1970s through early 
2000s likely did destroy a significant amount of biogenic habitat, NMFS 
agrees that any assumption that none remains would be unwarranted and 
that NMFS bottom trawl survey and WCGOP data show coral and sponge 
bycatch, even in areas of high fishing effort. Trawling effort is 
heterogeneously distributed, with some areas trawled repeatedly and 
others less often or in some cases not at all. Ultimately, NMFS 
concluded that the RCA boundaries implemented through this final rule 
will not significantly affect the quality of the human environment. All 
of the additional areas opened through this rule are currently 
subjected to groundfish bottom trawling at some point during the year. 
This rule would only change the boundaries to allow year-round access.
    Comment 9: The proposed rule could have significant impacts on 
corals, sponges, and other marine life. Removal by bottom trawling of 
slow growing corals could cause long-term changes in associated 
megafauna, which provide shelter and food sources for juvenile fish and 
shellfish. Corals, sponges, and Pennantulacea (sea whips and sea pens) 
also create three-dimensional structures that form habitat for 
bottomfish, shellfish, invertebrates, and other marine life, and 
impacts by bottom trawling may impact fish stocks. Some corals may live 
in excess of 2,000 years, some sponges may be over 220 years old, and 
some mounds formed by sponges appear have been estimated to be between 
9,000 to 125,000 years old. NMFS needs to consider impacts to biogenic 
habitat in conjunction with impacts to substrate. The impacts to ocean 
floor substrate and impacts to biogenic habitat such as corals and 
sponges may be different.
    Response: NMFS agrees that corals, sponges, and Pennantulacea (sea 
whips and sea pens) have the potential to create three-dimensional 
structures that form habitat for marine life, and impacts by bottom 
trawling may have an impact on fish stocks. This was considered in the 
EFH synthesis review documents that informed the EA associated with 
this final rule. As the EA points out, recolonization and recovery 
rates and recovery times may be greater than 100 years for 
deep[hyphen]sea corals. NMFS agrees that some corals may live in excess 
of 2,000 years, some sponges may be over 220 years old, and that some 
mounds formed by sponges appear to have been estimated to be between 
9,000 to 125,000 years old. However, many of these habitats and mounds 
are particularly inaccessible to bottom trawl gear given current gear 
restrictions. In addition, all of the areas opened through this rule 
are currently subjected to groundfish bottom trawling at some point 
during the year.
    NMFS agrees that impacts to ocean floor substrate and impacts to 
biogenic habitat, such as corals and sponges, may be different and that 
the physical environment of the seafloor is formed by the combination 
of invertebrates with sediment structures. NMFS fully considered the 
physical environment of the seafloor formed by the combination of 
invertebrates with sediment structures in the EA for this action. The 
recovery tables and other information provided by the EFH habitat 
synthesis review products are utilized in the EA, which considers 
impacts to biogenic habitat in conjunction with impacts to substrate 
types. Citing recovery times from those reviews, the EA specifically

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excludes structure-forming invertebrates in the recovery table, and 
qualifies the limitations of biogenic habitat recovery estimates 
regarding the available analysis. Although the recovery tables in the 
EA are mostly relevant to seafloor areas lacking biogenic habitat, 
impacts to biogenic habitat such as corals, sponges, and sea whips/pens 
are explained elsewhere in detail in the EA (as well as in the 2005 EFH 
EIS and recent EFH synthesis analysis review documents). NMFS notes 
that the majority of scientific peer-reviewed literature on biogenic 
habitat abundance suggests that the abundance of slow growing 
epibenthic coral and sponge fauna tends to be greater in mixed/hard and 
hard substrates, as opposed to soft sand and mud habitat. Soft sandy/
mud habitat is estimated to comprise over 90 percent of groundfish 
habitat substrate within all RCA areas, including those that will 
remain closed after this final action. This rule would only change the 
boundaries to allow year-round access. NMFS disagrees that this rule 
will have significant impacts.
    Comment 10: Trawl vessels do not avoid hard and mixed substrate 
sufficiently to mitigate impacts to areas with coral or sponge. The 
rule as proposed will allow trawling in areas with mixed and hard 
substrate and adversely impact corals and sponges.
    Response: NMFS agrees that not all areas of hard and mixed 
substrate are untrawlable or actively avoided by vessels, and that 
trawling has the potential to impact corals and sponges when 
encountered. However, as the commenter acknowledged, at least some 
areas may be avoided due to potential negative impacts on trawl gear. 
Despite the fact that trawl vessels do tow over some trawlable smooth 
hard and mixed substrates, some high relief areas are considered 
untrawlable because of the potential for severe damage to trawl gear. 
These areas provide a financial and safety disincentive for vessels to 
engage in trawling, regardless of RCA configuration.
    Comment 11: The proposed rule raises doubts about the adequacy of 
the existing measures to protect groundfish EFH habitat from the 
adverse effects caused by fishing to the extent practicable, as 
required by the MSA.
    Response: As described earlier in the preamble to this final rule, 
after reviewing public comment on the proposed rule, information 
developed through the Council's groundfish EFH review, the Council's 
recommendations, and the EA for this action, NMFS has determined that 
additional consideration regarding the impacts of the seaward boundary 
modification on groundfish EFH between 45[deg]46' N. lat. and 
40[deg]10' N. lat., between the 150 fm (274-m) and modified 200 fm 
(366-m) is warranted. Therefore, NMFS is not implementing that seaward 
boundary change at this time.
    Comment 12: Changes to the RCA should be made through a 
comprehensive coastwide process in coordination with revisions to EFH.
    Response: NMFS agrees that addressing changes to RCAs and revisions 
to EFH in a more coordinated and comprehensive manner could have some 
benefits. However, there are numerous procedural avenues available to 
the Council and NMFS that could accomplish these goals. As mentioned 
previously, at the Council's September 2013 meeting several industry 
groups and environmental nongovernmental organizations submitted a 
joint letter indicating their intent to collaborate on long term RCA 
proposals (Agenda Item G.9.d, Supplemental Public Comment 2). That 
effort, coordinated with the ongoing EFH review, could provide one 
option for considering the catch control aspects of RCAs along with the 
habitat aspects.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the Pacific Coast Groundfish FMP, other 
provisions of the MSA, and other applicable law. To the extent that the 
regulations in this final rule differ from what was deemed by the 
Council, NMFS invokes its independent authority under 16 U.S.C. 
1855(d).
    An Environmental Assessment (EA) was prepared for this action. The 
EA includes socio-economic information that was used to prepare the RIR 
and FRFA. A copy of the final EA is available online at 
www.westcoast.fisheries.noaa.gov.
    NMFS finds good cause to waive the 30-day delay in effectiveness 
pursuant to 5 U.S.C. 553(d), so that this final rule may become 
effective April 17, 2014. This rule reduces regulatory restrictions by 
allowing trawl vessels access to areas previously closed to fishing at 
certain times during the year. Failure to waive the 30-day delayed 
effectiveness would result in missed opportunities for trawl vessels to 
increase profits by attempting to increase their catch of healthy fish 
stocks that are under harvested. Implementing this rule quickly will 
allow these additional fishing opportunities during the months of March 
and April that would otherwise be forgone. Moreover, this rule adds no 
requirements, duties, or obligations on the affected entities, and 
therefore they do not need time to modify their behavior to come into 
compliance with the rule. Accordingly, NMFS finds good cause to waive 
the delay in effectiveness.
    A Regulatory Impact Review (RIR) was prepared on the action and is 
included as part of the final regulatory flexibility analysis (FRFA) on 
the regulatory changes. The FRFA and RIR describe the impact this rule 
will have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A copy of the FRFA is available from NMFS (see 
ADDRESSES) and a summary of the FRFA, per the requirements of 5 U.S.C. 
603(a), follows:
    The trawl RCA is an area is closed to vessels fishing groundfish 
with bottom trawl gear. This action would revises the bimonthly 
boundaries of the RCA that is closed to vessels fishing groundfish with 
bottom trawl gear. This rule affects the limited entry bottom trawl 
sector managed under the Pacific Coast Groundfish FMP. This RCA was 
designed to prevent the fleet from exceeding harvest quotas when 
fishing under trip limits. Since the implementation of the IFQ program, 
the industry has shown a remarkable ability to avoid bycatch. 
Therefore, the industry is seeking a reduction in the RCA area so that 
it can have a greater chance to fish more of their individual quotas.
    NMFS considered three alternative RCA boundary configurations, as 
described above, and the RCA boundaries of Alternative 1 as modified in 
this final rule. The alternative considered were: The current trawl RCA 
boundaries for 2014 (no action), the Council recommended proposed trawl 
RCA boundaries between 48[deg]10' N. lat. and 40[deg]10' N. lat., 
(Alternative 1, Table 1), alternative trawl RCA boundaries between 
48[deg]10' N. lat. and 40[deg]10' N. lat. added by NMFS (Alternative 2, 
Table 2), and the proposed trawl RCA boundaries between 48[deg]10' N. 
lat. and 40[deg]10' N. lat., as recommended by the Council in April 
2013 with no seaward action between 45[deg]46' N. lat. and 40[deg]10' 
N. lat.
    The amount of increased catch and reduced costs resulting from the 
proposed alternatives is not known due to limitations of the available 
data and models. However, the regulatory changes associated with 
Alternative 1, Alternative 2, and Alternative 1 as modified will have 
positive economic effects including reduced fuel, improved safety, and 
increased access to important target species. Overall, the most likely 
potential impacts are higher

[[Page 21646]]

attainments of the trawl allocations than would be expected under the 
No-Action alternative. Alternative 1 as implemented in this final rule 
is slightly more restrictive than Alternative 2; Alternative 2 is more 
restrictive compared to the non-implemented Alternative 1; Alternative 
2 opens some areas that have been intermittently closed, but not as 
much new areas as Alternative 1 as proposed would have done.
    This rulemaking directly affects bottom trawlers participating in 
the IFQ fishery. To fish in the IFQ fishery, a vessel must have a 
vessel account. As part of this year's permit application processes for 
the non-tribal fisheries, applicants indicate if they are ``small'' 
business based on a review of the Small Business Administration (SBA) 
size criteria. These criteria have recently changed. On June 20, 2013, 
the SBA issued a final rule revising the small business size standards 
for several industries effective July 22, 2013 (78 FR 37398, June 20, 
2013). The rule increased the size standard for Finfish Fishing from $ 
4.0 to 19.0 million, Shellfish Fishing from $ 4.0 to 5.0 million, and 
Other Marine Fishing from $4.0 to 7.0 million (Id. at 37400-Table 1). 
Based on the new size standard ($19 million), NMFS reassessed those 
businesses considered large under the old size standard ($4 million) 
based on information provided by these companies under the NMFS 
Northwest Fisheries Science Center's (NWFSC) Economic Data Collection 
Program. After taking into account NWFSC economic data, NMFS permit and 
ownership information, PacFIN landings data for 2012, and affiliation 
between entities, NMFS estimates that there are 66 entities affected by 
these proposed regulations, of which 56 are ``small'' businesses. As 
noted below, these small entities are not negatively impacted by this 
rule.
    There were no significant issues raised by the public comments in 
response to the IRFA. Several comments to the proposed rule had 
economic content (see especially Comments 2, 3, and 5 and associated 
responses of the Final Rule.) Based upon comments explained above in 
the preamble, NMFS is implementing Alternative 1 with the exception of 
the seaward boundary change between 45[deg]46' N. lat. and 40[deg]10' 
N. lat., to provide IFQ participants with the increased flexibility to 
attain underutilized target species.
    This final rule will increase access to fishing grounds in a 
fishery where the individual accountability of the IFQ program has a 
three-year track record of providing strong incentives to keep bycatch 
of overfished species low, irrespective of trawl RCA boundaries. The 
changes to the trawl RCA boundaries would continue to refine groundfish 
fishery management measures to enable higher attainment of available 
quota pounds for several valuable species, while still protecting 
overfished species. The EA demonstrates that the upper slope area 
benthic habitat between 45[deg]46' N. latitude to 40[deg]10' N. 
latitude, 150 to 200 fm, which would be opened under the Council-
preferred Alternative 1, may have experienced some recovery from the 
effects of bottom trawling. This area has been closed to bottom-trawl 
gear impacts for almost a decade. NMFS has determined that the area 
between 45[deg]46' N. latitude to 40[deg]10' N. latitude, from the 150 
fm to modified 200 fm lines should remain closed pending completion of 
the groundfish EFH review or additional consideration of whether 
opening that area is consistent with minimizing the adverse effects on 
groundfish EFH caused by fishing to the extent practicable. However, 
this final rule will still increase year-round access to areas that are 
already open to bottom trawling at some times during the year. This 
rule opens up approximately 2,389 square miles of additional year-round 
access to the bottom trawl fleet compared to taking no action.
    Accordingly, NMFS believes that this rule will have a positive 
impact on small entities and will not have significant adverse economic 
impacts on a substantial number of small entities.
    This final rule was developed after meaningful collaboration, 
through the Council process, with the tribal representative on the 
Council.
    No Federal rules have been identified that duplicate, overlap, or 
conflict with the final action. Public comment is hereby solicited, 
identifying such rules.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: April 11, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 660 is amended 
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. and 16 U.S.C. 773 et seq.

0
2. Table 1 (North) to part 660, subpart D, is revised to read as 
follows:

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[GRAPHIC] [TIFF OMITTED] TR17AP14.010

[FR Doc. 2014-08732 Filed 4-16-14; 8:45 am]
BILLING CODE 3510-22-P