Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Pacific Coast Groundfish Fishery Management Plan; Amendment 34; Groundfish Exclusion Area for Coral Research and Restoration

SUPPLEMENTARY INFORMATION:

The Pacific Coast groundfish fishery in the U.S. exclusive economic zone (EEZ) seaward of Washington, Oregon, and California is managed under the Groundfish FMP. The Council developed the Groundfish FMP pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. The Secretary of Commerce approved the Groundfish FMP and implemented the provisions of the plan at 50 CFR part 660, subparts C through G. Species managed under the Groundfish FMP include more than 90 species of groundfish, flatfish, rockfish, sharks, and skates.

This proposed rule (also referred to interchangeably as “this proposed action”) would implement regulations for amendment 34 to the Groundfish FMP. Consistent with Magnuson-Stevens Act section 303(c)(1), the Council deemed the proposed regulations consistent with and necessary to implement amendment 34 in an October 1, 2024 letter from Council Chairman, Merrick Burden, to Regional Administrator, Jennifer Quan. The Notice of Availability for amendment 34 that published on October 9, 2024 (89 FR 81878) describes the details of the Groundfish FMP changes established through this proposed action. NMFS is concurrently seeking comment on the Council's proposed measures in amendment 34.

Background

The Council met over 2023 and 2024 to consider developing fisheries closures for deep-sea coral restoration and research in response to a request from the ONMS. ONMS conducts scientific research in National Marine Sanctuaries, including within MBNMS, under the NMSA and the Magnuson-Stevens Act.

In September 2023, ONMS presented a scoping paper that posed 5 locations with 10 sites within Greater Farallones National Marine Sanctuary and MBNMS, for deep seas coral restoration and research (section 1.2 of the Analysis). At that meeting, the Council chose to continue to scope closures in MBNMS only, at the locations of Año Nuevo and Ascension Canyons (two sites) and Sur Ridge (one site), for areas to conduct coral research and restoration. The Council proposed that these areas could be closed to bottom contact gears as GEAs. GEAs were established by amendment 32 to the Groundfish FMP (88 FR 83830, December 1, 2023) and are a management tool intended to mitigate the impacts to sensitive environments from certain groundfish fishing activity.

At the March 2024 meeting, the Council adopted a range of alternatives for this proposed action that included modified versions of the Año Nuevo and Ascension Canyon sites to address concerns raised by the public regarding closing off key fishing grounds shallower than 400 fathoms (fm) and enforcement concerns (section 1.2 of the Analysis). The Council also confirmed that the potential sites would only be proposed to be closed to commercial groundfish bottom contact gears and that no other gear types or fisheries would be proposed in the closures.

At the June 2024 meeting, the Council adopted its final preferred alternative to develop a GEA for commercial groundfish bottom contact gear at Sur Ridge in MBNMS. If the GEA is established, it is expected that ONMS would begin deep-sea coral outplanting at Sur Ridge in 2025.

The proposed GEA at Sur Ridge would apply to commercial groundfish vessels using bottom contact gear. Currently, the GEA area is within a bottom trawl essential fish habitat conservation area (EFHCA), and therefore no bottom trawling is permitted. If the EFHCA were to be removed in the future, the GEA would continue to prohibit bottom trawl. The GEA would create new restrictions for non-trawl commercial groundfish vessels using bottom contact gears in the limited entry fixed gear, directed open access, and shore-based individual fishing quota sectors. Vessels using non-bottom contact gear would still be permitted to operate in the area. The proposed GEA would close 36.64 square nautical miles of area, with depths ranging from 2,690 to 5,118 feet (448 to 853 fm). Overall, this proposed GEA would allow ONMS to perform deep-sea coral research and restoration while having limited impact on the groundfish fisheries.

Amendment 34

NMFS is proposing amendment 34 to the Groundfish FMP in alignment with the Council's recommendation in June 2024. Amendment 34 would revise the description of GEAs in the FMP to remove references to specific GEAs, consistent with how other closed area types are included in the FMP. Active GEAs would instead be noted in the Federal groundfish regulations at proposed § 660.70, and the history of a specific GEA would likely be provided in the groundfish Stock Assessment Fishery Evaluation document.

Proposed Rule

In addition to revising the description of GEAs under amendment 34, in alignment with the Council's recommendation, NMFS proposes regulations to modify the use of GEAs as a management tool in the following ways. This proposed rule would:

• Add GEAs to the general groundfish prohibitions found at § 660.12;
• Revise the descriptions of GEAs found in §§ 660.230, 660.330, and 660.360 to remove the specific references to the Southern California Bight; and,
• Establish a new GEA at Sur Ridge in MBNMS.

To add GEAs to the general groundfish prohibitions found in the regulations, this proposed rule would add proposed § 660.12(a)(22) to the list of prohibitions in § 660.12(a) to clarify that it is unlawful for fishermen to violate any regulations that apply to activity in GEAs. To revise the descriptions of GEAs in regulations, this proposed rule would update §§ 660.230, 660.330, and 660.360 to remove specific references to the Southern California Bight and generalize the GEA descriptions to allow for GEAs to be located more broadly. This proposed rule would also update the GEA description at § 660.70(t) to note that there would be a total of nine GEAs and to remove the specific reference to GEAs being areas south of Point Conception, California. And, finally, this proposed rule would add § 660.70(t)(9) to the list of GEAs found in that section and would include the latitude and longitude coordinates and other information relevant to establishing the proposed Sur Ridge GEA.

Classification

Pursuant to sections 303(C) and 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

Regulatory Impact Review (RIR)

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. A copy of this Analysis is available from NMFS (see ADDRESSES section). NMFS is recommending amendment 34 and the regulatory revisions in this proposed rule based on its assessment of the net benefits to the Nation of these measures.

Regulatory Flexibility Act

NMFS has recommended that the Chief Counsel for Regulation of the Department of Commerce certify to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant adverse economic impact on a substantial number of small entities.

For purposes of the RFA (5 U.S.C. 601 et seq.) only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses (50 CFR 200.2; 13 CFR 121.201).

All commercial groundfish participants that use bottom contact gear for fisheries in the EEZ off Washington, Oregon, and California, which are managed under the Groundfish FMP, may be affected by this proposed rule. Bottom contact gear is defined at 50 CFR 660.11: “fishing gear designed or modified to make contact with the bottom. This includes, but is not limited to, beam trawl, bottom trawl, dredge, fixed gear, set net, demersal seine, dinglebar gear, and other gear (including experimental gear) designed or modified to make contact with the bottom. Gear used to harvest bottom dwelling organisms ( e.g. by hand, rakes, and knives) are also considered bottom contact gear for purposes of this subpart.”

This list is non-exhaustive. The proposed coral research and restoration area is within existing bottom trawl EFHCAs, which prohibit all bottom trawl gears from operating within those EFHCA boundaries. Given that these areas are currently closed to bottom trawl vessels, this action would establish no new impact to those vessels. Therefore, the proposed action would impact only fishing with non-trawl bottom contact gear types within the proposed GEA at Sur Ridge. The commercial gears that would be permitted to operate within the newly closed area, as currently proposed, are midwater trawl and select non-trawl gear types (troll gear and commercial vertical hook-and-line gear not anchored to the bottom, such as vertical jig gear or rod-and-reel gear with weights suspended off the bottom).

From 2019 to 2023, there were 429 distinct vessels that utilized non-trawl bottom contact gears in the 3 commercial groundfish sectors (directed open access (OA), limited entry fixed gear (LEFG), and individual fishing quota (IFQ) gear switching) with an annual average of 175 vessels operating annually (table 1) between the latitudes of 40° 30′ N and 36° N. As described in section 3.5.2 of the Analysis, this is the catch area that encompassed the three coral restoration and research areas proposed within MBNMS in late 2023. The Council ultimately only recommended one offshore area to move forward as a GEA. Therefore, the estimated values here are expected to reflect the maximum number of vessels that could potentially be affected by this proposed action. The actual number is likely lower. The majority of affected vessels would participate in the directed OA fishery. To protect the confidentiality of vessel data, IFQ gear switching vessels were combined with LEFG vessels in table 1.