Fisheries of the Exclusive Economic Zone Off Alaska; Reclassifying Squid Species in the BSAI and GOA

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to implement Amendment 117 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), implement Amendment 106 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP), and update the species code tables for octopus. This final rule prohibits directed fishing for the squid species complex (squids) by Federally permitted groundfish fishermen, specifies a squid retention limit in the Gulf of Alaska (GOA) groundfish fisheries consistent with the existing Bering Sea and Aleutian Islands Management Area (BSAI) squid retention limit, and makes minor corrections to the octopus species code tables. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMPs, and other applicable laws.

DATES:

Effective August 6, 2018.

ADDRESSES:

Electronic copies of Amendment 117 to the BSAI FMP, Amendment 106 to the GOA FMP, and the Environmental Assessment/Regulatory Impact Review (collectively the “Analysis”) prepared for this action may be obtained from www.regulations.gov.

Electronic copies of the Initial Regulatory Flexibility Analyses for the BSAI and GOA Groundfish Harvest Specifications for 2018 and 2019 may be obtained from www.regulations.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted by mail to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99082-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; by email to OIRA_Submission@omb.eop.gov; or by fax to (202) 395-5806.

FOR FURTHER INFORMATION CONTACT:

Megan Mackey, (907) 586-7228.

SUPPLEMENTARY INFORMATION:

Authority for Action

NMFS manages the groundfish fisheries in the exclusive economic zones of the BSAI and GOA under the BSAI FMP and GOA FMP (collectively the FMPs). The North Pacific Fishery Management Council (Council) prepared the 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 appear at 50 CFR part 600.

This final rule implements Amendments 117/106 and updates the species code for octopus in several tables to 50 CFR part 679. The Council submitted Amendments 117/106 for review by the Secretary of Commerce, and the notice of availability of these amendments was published in the Federal Register on March 27, 2018, with comments invited through May 29, 2018 (83 FR 13117). NMFS published the proposed rule for this action on April 11, 2018 (83 FR 15538), with comments invited through May 11, 2018. NMFS received three comment letters from three members of the public. The comments are summarized and responded to under the heading “Comments and Responses” below.

A detailed review of the provisions and rationale for this action is provided in the preamble to the proposed rule and is briefly summarized in this final rule.

Background

In June 2017, the Council voted unanimously to recommend FMP Amendments 117/106 to reclassify squids as non-target ecosystem component species, not in need of conservation and management. Squids are currently classified as target species in the FMPs, though as discussed below, squids are currently only caught incidental to other target fisheries. To implement FMP Amendments 117/106, NMFS implements regulations to prohibit directed fishing for squids by Federally permitted groundfish fishermen and to specify a squid retention limit in the GOA groundfish fisheries consistent with the existing BSAI squid retention limit. The following sections of this preamble describe (1) groundfish stock classification in FMPs and a brief history of this action; (2) the National Standards (NS) guidance for determining which species require conservation and management; (3) FMP Amendments 117/106; (4) the regulatory changes made by this final rule; and (5) the comments received and NMFS responses to those comments.

Stock Classification in FMPs and a Brief History of This Action

Among other requirements, FMPs must comply with the Magnuson-Stevens Act NS (16 U.S.C. 1851). Relevant to this final rule, the NS guidelines at 50 CFR 600.305(d)(11), (12) and (13) define three classifications for stocks in an FMP: (1) Target stocks in need of conservation and management that fishermen seek to catch; (2) non-target stocks in need of conservation and management that are caught incidentally during the pursuit of target stocks; and (3) ecosystem component (EC) species that do not require conservation and management, but may be listed in an FMP in order to achieve ecosystem management objectives.

Squids are currently classified as target species in the FMPs and directed fishing for squids is allowed. For squid, NMFS annually establishes an overfishing level (OFL) that should not be exceeded, an allowable biological catch (ABC) that is the maximum permissible harvest amount, and a total allowable catch (TAC). These terms, and the process for establishing the OFL, ABC, and TAC for squids, are described in the preamble to the proposed rule and are not repeated here (April 11, 2018, 83 FR 15538). The TAC levels established annually for squids are too low to support a directed fishery in either the BSAI or GOA. Directed fishing for squids has been closed in the BSAI and GOA through the annual harvest specifications each year since 2011. Thus, squids are only harvested incidentally in fisheries targeting other species.

Since 2010, the Council's non-target committee, Plan Teams, and Scientific and Statistical Committee have recommended that the Council explore reclassifying squids as EC category species because they do not meet the target species category classification, there is no demand for squid, and squid have not been targeted or open to directed fishing in either the BSAI or GOA for many years (see Section 1.2 of the Analysis). Further, there is no conservation concern for squids because they are extremely short-lived and highly productive, the current fishing mortality is considered insignificant at a population level, and they are unlikely to be overfished in the absence of a directed fishery (see Section 3.2.5 of the Analysis).

Determining Which Species Require Conservation and Management

Section 302(h)(1) of the Magnuson-Stevens Act requires a regional fishery management council to prepare an FMP for each fishery under its authority that is in need of conservation and management. “Conservation and management” is defined in section 3(5) of the Magnuson-Stevens Act. The NS guidelines at § 600.305(c) (revised on October 18, 2016, 81 FR 71858), provide direction for determining which stocks will require conservation and management and provide direction to regional fishery management councils and NMFS for how to consider these factors in making this determination. Specifically, the guidelines direct regional fishery management councils and NMFS to consider a non-exhaustive list of ten factors when deciding whether stocks require conservation and management.

Section 2.2.1 of the Analysis considers each of the 10 factors' relevance to squids. The Analysis showed that squids are an important component of the marine ecosystem, particularly due to their importance as prey for marine mammals, fish and other squids. However, despite being classified as a target species, there are currently no directed fisheries for squids. Squids are not important to commercial, recreational, or subsistence users, and the fisheries for BSAI and GOA squids are not important to the National or regional economy. There are no developing fisheries for squids in the exclusive economic zone off Alaska nor in waters of the State of Alaska. In the absence of a directed fishery, squids are unlikely to become overfished because they are short-lived and highly productive, and current surveys are considered substantial underestimates of true squids biomass in both the BSAI and GOA. Therefore, maintaining squids in the FMPs for conservation and management is not likely to improve or maintain the condition of the stocks.

Amendments 117/106

In June 2017, the Council recommended, and NMFS now implements, Amendments 117/106 to reclassify squids as EC category species in the FMPs. Based on a review of the scientific information, and after considering the revised NS guidelines, the Council and NMFS determined that squids are not in need of conservation and management, and that classifying squids in the EC category is an appropriate action.

Though the Council determined, and NMFS concurs, that squids are not in need of conservation and management, squid population status and bycatch should be monitored to continually assess vulnerability of squids to the fishery given their importance in the ecosystem. Therefore, this final rule retains recordkeeping and reporting requirements for squid bycatch. This final rule prohibits directed fishing for squids to meet the intent of Amendments 117/106 that squids are not a target species complex. Because the definition of directed fishing at § 679.2 is based on a maximum retainable amount (MRA), this final rule specifies a retention limit for squids so that NMFS can implement the prohibition on directed fishing to meet the intent of Amendments 117/106.

This Final Rule and the Anticipated Effects

In addition to classifying squids as an EC category species in the FMPs under Amendments 117/106, NMFS issues regulations to limit and monitor the catch of squids. This final rule—

• prohibits directed fishing for squids in the BSAI and GOA groundfish fisheries;
• maintains recordkeeping and reporting requirements of squids in the BSAI and GOA groundfish fisheries, but modifies the pertinent regulations for clarity;
• specifies a squids retention limit, or MRA, in the GOA Federal groundfish fisheries consistent with the existing BSAI squids MRA of 20 percent; and
• revises the species code tables in the regulations to indicate octopus is a multi-species category by using the plural, octopuses.

To prohibit directed fishing, this final rule revises §§ 679.20(i) and 679.22(i) to prohibit directed fishing for squids at all times in the BSAI and GOA groundfish fisheries.

To clarify definitions and recordkeeping and reporting requirements, this final rule adds a definition for squids at § 679.2 and adds an instruction to § 679.5 to use the squids species code in Table 2c to 50 CFR part 679 (Table 2c) to record and report squid catch. These revisions maintain NMFS' ability to monitor the catch, retention, and discard of squids.

The MRA is the proportion or percentage of 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). This final rule moves squids out of the basis species category and into the incidental catch species category consistent with the prohibition on directed fishing for squids under this final rule.

In developing this final rule, the Council and NMFS considered a range of squids MRA percentages: 2 percent, 10 percent, and the current MRA of 20 percent. Section 4.6.2 of the Analysis discusses that a more constraining MRA is more likely to increase discards of dead squids rather than discourage targeting. There are no conservation concerns for squids. Therefore, the Council recommended and NMFS is specifying an MRA for squids of 20 percent in the GOA groundfish fisheries consistent with the existing MRA for squids in the BSAI groundfish fisheries.

This final rule corrects a minor technical inaccuracy in the species code for octopus. This correction does not affect existing reporting requirements.

Comments and Responses

NMFS received three unique comments from three members of the public on the proposed rule.

Comment 1: Squid is a target species in many market sectors. This regulation is not science based and demonstrates willful mismanagement of the Federal public trust. Do not enact these changes.

Response: While there are markets for squids in some places, squids have limited economic value relative to many of the BSAI and GOA groundfish and therefore are not targeted by commercial, recreational, or subsistence fishery participants. In addition, the preamble to the proposed rule (83 FR 15538, April 11, 2018), and the Analysis state that squids are closed to directed fishing and therefore are not directly targeted in the North Pacific groundfish fisheries. This final rule was developed after considering the best available scientific information provided in the Analysis prepared by the Council and NMFS. Specifically, the Analysis examined the biological, economic, and management implications of classifying squids in the EC category. The Analysis describes that there are no conservation concerns for squids. Squids are short-lived and highly productive. Bottom trawl surveys are considered substantial underestimates of true squid biomass in both the BSAI and GOA. Fishing related mortality is extremely low compared with the estimated predation mortality in food web models. In the absence of a directed fishery, squids are very unlikely to become overfished. Therefore, based on the best scientific information available, NMFS determined that squids are not in need of conservation and management and that classifying squids in the EC category is an appropriate action.

Comment 2: The squids retention limit should be zero.

Response: Although squids do not require conservation and management, it is still appropriate to take measures to minimize squids bycatch to the extent practicable. This is consistent with NS 9, which requires that management measures, to the extent practicable, minimize bycatch and to the extent bycatch cannot be avoided, minimize bycatch mortality, and the Council's long-standing practice of minimizing the bycatch of species such as forage fish and grenadiers that are important to the ecosystem but that do not require conservation and management. The preferred alternative maintains the current MRA of 20 percent, rather than imposing a more stringent MRA because a more restrictive MRA does not appear necessary. As noted in the response to Comment 1 above, there are no conservation concerns for squids. Further, Section 4.6.2 of the Analysis discusses that a more constraining MRA is more likely to increase discards of dead squids rather than discourage targeting. Therefore, a retention limit of zero would be unnecessarily constraining and would not be likely to benefit squids.

Comment 3: One commenter expressed support for this action and noted this action provides operational relief to the owners and operators of trawl catcher vessels that may be constrained by a squid OFL in the Bering Sea pollock fishery.

Response: NMFS acknowledges the comment.

Changes From the Proposed Rule

No changes were made from the proposed rule.

Classification

The Administrator, Alaska Region, NMFS has determined that this final rule is necessary to properly classify squids in the FMPs based on the best available scientific information, and is consistent with Amendment 117 to the BSAI FMP, Amendment 106 to the GOA FMP, other provisions of the Magnuson-Stevens Act, and other applicable laws.

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

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 preamble to the proposed rule and this final rule serve as the small entity compliance guide. This action does not require any additional compliance from small entities that is not described in the preambles. Copies of the proposed rule and this final rule are available from the NMFS website at http://alaskafisheries.noaa.gov.

Regulatory Impact Review (RIR)

An RIR was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendments 117/106 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis related to the impact of this final rule on small entities are discussed below.

Final Regulatory Flexibility Analysis (FRFA)

This section contains the FRFA for this final rule. Section 604 of the Regulatory Flexibility Act (RFA) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA. Section 604 describes the required contents of a FRFA: (1) A statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any changes made to the proposed rule in the final rule as a result of the comments; (4) a description of 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 that 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 this 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.

A description of this final rule and the need for and objectives of the rule are contained in the preamble to this final rule and the preamble to the proposed rule (83 FR 15538, April 11, 2018), and are not repeated here.

Public and Chief Counsel for Advocacy Comments on the Proposed Rule

NMFS published the proposed rule on April 11, 2018. An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. The comment period closed on May 11, 2018, for the proposed rule and on May 29, 2018, for the notice of availability for the amendments. NMFS received three unique comments from three members of the public on the proposed rule and Amendments 117/106. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

NMFS received no comments specifically on the IRFA. However, one of the comments supported the action because it provides operational relief to the owners and operators of trawl catcher vessels.

Number and Description of Small Entities Regulated by This Final Rule

This final rule directly regulates any vessel operator harvesting squids in the Federally managed groundfish fisheries in the BSAI and GOA. The thresholds applied to determine if an entity or group of entities are “small” under the RFA depend on the industry classification for the entity or entities. Businesses classified as primarily engaged in commercial fishing are considered small entities if they have combined annual gross receipts not in excess of $11.0 million for all affiliated operations worldwide (81 FR 4469; January 26, 2016). The most recent estimates of the number of fishing vessels participating in the BSAI and GOA groundfish fisheries that are small entities are provided in Table 2 in the IRFAs for the BSAI and GOA annual harvest specifications for 2018 and 2019 (see ADDRESSES). In 2016, there were 119 catcher vessels and 5 catcher/processors in the BSAI, and 920 catcher vessels and 3 catcher/processors in the GOA. These estimates likely overstate the number of small entities in the groundfish fisheries off Alaska because some of these vessels are affiliated through common ownership or membership in a cooperative, and the affiliated vessels together would exceed the $11.0 million annual gross receipts threshold for small entities.

The only potential adverse economic impact that has been identified for this final rule is that vessel owners or operators who may wish to conduct directed fishing for squids in the future, and who wish to retain more squids than allowed under the 20 percent MRA, will not be able to do so. This potential adverse impact will not affect any current participants relative to opportunities available to them in recent years, because directed fishing for squid has been closed in the BSAI and GOA since 2011. Therefore, no current participants will lose an economic opportunity that is available to them today or has been available to them in recent years.

The degree to which this final rule could limit current fishery permit holders' future economic activity in the BSAI or GOA could be viewed as an adverse impact of this final rule. This adverse economic impact could affect any future participant in these groundfish fisheries. Therefore, all fishing vessels currently participating in the BSAI and GOA groundfish fisheries that are small entities could be adversely impacted by this final rule in the future. However, based on the very limited number of vessel operators who have expressed interest in conducting directed fishing for squids in the past, the actual number of small entities that will be adversely impacted by this final rule is likely zero or very few. Vessel operators may continue to catch and retain squids in the BSAI and GOA groundfish fisheries as long as they maintain their catch within the 20 percent MRA.

For operators of vessels currently participating in these fisheries, the economic impacts of this final rule are primarily beneficial or neutral. Removing squids from the BSAI target species category will remove the squids TAC from inclusion in the 2 million mt optimum yield (OY) cap in the BSAI. The amount of the OY cap that has been reserved for squids will be available to increase the TAC limit or limits for other BSAI target species. This effect will benefit participants in the BSAI fisheries that experience TAC increases relative to what the TACs would have been without this final rule. Some of the entities that experience benefits from increased TACs in the future may be small entities. The effects on target species TACs will be neutral for the GOA fisheries, as the OY has not constrained TACs in the GOA to date. Therefore, removing the squids TAC in the GOA will not allow for an increase in the TAC for another target species.

For participants in the Bering Sea pollock fishery, moving squids from the target species category to the EC category will remove the squid OFL as a potential constraint for the Bering Sea pollock fishery, thereby increasing the flexibility of the Bering Sea pollock fishery participants to focus on minimizing the bycatch of salmon and other PSC in the pollock fisheries. Removing this constraint will reduce the costs associated with trying to simultaneously minimize the catch of squid and the catch of salmon and other PSC. However, none of the directly regulated entities in the Bering Sea pollock fishery are considered small entities because all of them are affiliated through either ownership or membership in a cooperative and, when considered together, have annual gross receipts that exceed $11.0 million annually.

Recordkeeping, Reporting, and Other Compliance Requirements

Under this final rule, requirements for recording and reporting the catch, discard, and production of squid in logbooks or on catch or production reports will be maintained as they are in existing regulations. This final rule makes only minor modifications to clarify the recordkeeping and reporting requirements in § 679.5, Table 2a to 50 CFR part 679, and Table 2c to 50 CFR part 679. Therefore, moving squids from the target species category to the EC category will not change recordkeeping and reporting costs for fishery participants or impose any additional or new costs on participants.

Description of Significant Alternatives That Minimize Adverse Impacts on Small Entities

The Council and NMFS considered three alternatives. Among the three alternatives, Alternative 2 Option 3 (the preferred alternative) provides the most economic benefits to current participants in the BSAI and GOA groundfish fisheries. The primary economic benefit of this final rule is to reduce the potential constraints imposed by the OFLs, ABCs, and TACs for squids on BSAI and GOA groundfish fisheries. Among the three options considered for the squids MRA (20 percent, 10 percent, and 2 percent), the 20 percent MRA that was selected minimizes the economic impact on any fishing vessel that is a small entity because it provides the greatest opportunity to retain squid as catch in other groundfish fisheries.

Alternative 1 is the no action alternative and would have continued to classify squids as target species in the FMPs. OFLs, ABCs, and TACs would have continued to be set for squids as a species group in both the BSAI and GOA. Relative to Alternative 2, Alternative 1 could be considered less beneficial to small entities because all catch specifications would need to be maintained, and current constraints on the BSAI and GOA groundfish fisheries would continue. However, Alternative 2 (this final rule) could be considered more restrictive to small entities than Alternative 1 if the prohibition on directed fishing for squids under this final rule limits future participants' ability to conduct directed fishing for squids more so than would have occurred under the status quo. Alternative 1 would have allowed NMFS to determine annually whether to open a directed fishery for squids.

Alternative 2 classifies squids in the BSAI and GOA in the EC category and implements a regulation prohibiting directed fishing for squids that could only be revised through subsequent rulemaking. However, the Council recommended and NMFS concurs that the benefits of this final rule to current fishery participants, including small entities, outweigh the potential future adverse impacts of the prohibition against directed fishing for squids. In addition, this provision can be re-evaluated by the Council and NMFS in the future if fishery participants want to develop directed fisheries for squids.

Alternative 3 would have classified squids in the FMPs as “non-target” species, in which case OFLs and ABCs would still have been established but TAC would no longer be specified. Relative to Alternative 2, Alternative 3 would have been less beneficial to small entities because certain catch specifications and their associated fishery constraints would still need to be maintained. When comparing Alternatives 1 and 3, Alternative 3 would have removed the requirement for setting TACs; however, the current potential constraints on other groundfish fisheries if an OFL or ABC for squids were achieved would continue. Therefore Alternative 3 would have been only slightly more beneficial than Alternative 1 to small entities.

Collection-of-Information Requirements

This final rule refers to collection-of-information (“recordkeeping and reporting”) requirements approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The relevant information collections are approved under OMB Control Number 0648-0213 (Alaska Region Logbook Family of Forms) and OMB Control Number 0648-0515 (Alaska Interagency Electronic Reporting System). This final rule makes minor revisions to these information collection requirements to clarify the location of the species code for squids in the tables to 50 CFR part 679. These revisions do not change the public reporting burden of the approved information collections or require revisions to the currently approved supporting statements for these collections.

Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, by email to OIRA_Submission@omb.eop.gov, or by fax to (202) 395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

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.; Pub. L. 108-447; Pub. L. 111-281.

2. In § 679.2, add a definition for “Squids” in alphabetical order 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 (b)(2) introductory text, paragraph (i) subject heading, and paragraphs (i)(3) through (5) to read as follows:

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

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

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

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

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