Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Vessel Movement, Monitoring, and Declaration Management for the Pacific Coast Groundfish Fishery, 35594-35601 [2020-11011]
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Federal Register / Vol. 85, No. 113 / Thursday, June 11, 2020 / Rules and Regulations
the Borax Lake chub. Additionally, the
chub experienced wide fluctuation in its
population year-to-year. Limited point
estimates for a widely fluctuating
population can lead to difficulty
assessing long-term trends. Therefore,
although the minimum PDM period
required by the Act is 5 years, as
described above, we chose to extend the
population abundance monitoring cycle
to once every 3 years and the total
monitoring period to 10 years to ensure
we can accurately measure changes in
trends.
The PDM plan identifies measurable
management thresholds and responses
for detecting and reacting to occurrence
of nonnative species or significant
changes in the Borax Lake chub’s
habitat, distribution, abundance, and
persistence. If declines are detected
equaling or exceeding these thresholds,
the Service, in combination with other
PDM participants, will investigate
causes of these declines, including
considerations of habitat changes,
substantial human persecution,
stochastic events, or any other
significant evidence. The result of the
investigation will be to determine if the
Borax Lake chub warrants expanded
monitoring, additional research,
additional habitat protection, or
relisting as an endangered or a
threatened species under the Act. If
such monitoring data or an otherwise
updated assessment of threats (such as
specific information on proposed
geothermal development projects)
indicate that relisting the Borax Lake
chub is warranted, emergency
procedures to relist the species may be
followed, if necessary, in accordance
with section 4(b)(7) of the Act.
Required Determinations
National Environmental Policy Act
We have determined that
environmental assessments and
environmental impact statements, as
defined under the authority of the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), need not
be prepared in connection with
regulations pursuant to section 4(a) of
the Act. We published a notice outlining
our reasons for this determination in the
Federal Register on October 25, 1983
(48 FR 49244).
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Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
Government-to-Government Relations
with Native American Tribal
Governments (59 FR 22951), Executive
Order 13175, and the Department of the
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Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with Tribes in developing programs for
healthy ecosystems, to acknowledge that
Tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to Tribes.
We do not believe that any Tribes will
be affected by this rule. However, we
contacted the Burns Paiute Tribe to
coordinate with them regarding the
proposed rule to delist the Borax Lake
chub. We provided the Tribe with a
copy of the proposed rule and draft
PDM, but we did not receive any
comments from them.
§ 17.95
References Cited
AGENCY:
A complete list of all references cited
in this final rule is available at https://
www.regulations.gov at Docket No.
FWS–R1–ES–2017–0035 or upon
request from the person listed under FOR
FURTHER INFORMATION CONTACT.
Authors
The primary authors of this final rule
are staff members of the Service’s
Oregon Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we hereby amend part
17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set
forth below:
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
§ 17.11
[Amended]
2. Amend § 17.11(h) by removing the
entry for ‘‘Chub, Borax Lake’’ under
FISHES from the List of Endangered and
Threatened Wildlife.
■
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[Amended]
3. Amend § 17.95(e) by removing the
entry for ‘‘Borax Lake Chub (Gila
boraxobius).’’
■
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020–10861 Filed 6–10–20; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 200515–0141]
RIN 0648–BI45
Magnuson-Stevens Act Provisions;
Fisheries off West Coast States;
Vessel Movement, Monitoring, and
Declaration Management for the
Pacific Coast Groundfish Fishery
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
This rule revises reporting
and monitoring provisions for vessels
participating in the Pacific Coast
groundfish fishery. This would: Increase
the position transmission rate for certain
vessels using NMFS type-approved
vessel monitoring system units; allow
midwater trawl vessels participating in
the Pacific whiting fishery to change
their landing declarations while at sea;
exempt groundfish trawl vessels from
observer coverage while testing
authorized fishing gear; and allow
shorebased Individual Fishing Quota
fixed gear vessels to deploy pot gear in
one management area while retrieving
gear from another management area on
a single trip. This action will increase
monitoring efficiency and effectiveness,
improve enforcement of restricted areas,
and increase operational flexibility for
groundfish fishery participants.
DATES: Effective July 13, 2020, except
for the amendments to § 660.14, which
are effective September 9, 2020.
ADDRESSES: Electronic copies of
supporting documents referenced in this
final rule, including the Categorical
Exclusions (CE) and final regulatory
flexibility analysis (FRFA), are available
from www.regulations.gov or from the
NMFS West Coast Region Groundfish
Fisheries website at https://
www.fisheries.noaa.gov/species/westcoast-groundfish.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Shannon Penna, Fishery Management
Specialist, 562–980–4238, or
shannon.penna@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
Between September 2014 and April
2016, the Pacific Fishery Management
Council (Council) developed and
considered management measures to
address a range of vessel and gear
movement issues and aggregated these
issues under a single vessel movement
monitoring agenda item. The Council
deemed the proposed regulations
consistent with and necessary to
implement this action in a July 17, 2019,
letter from Council Executive Director,
Chuck Tracy, to Regional Administrator
Barry Thom. Additional background
information on each of the measures
included in this final rule are included
in the proposed rule, published on
October 10, 2019 (84 FR 54579), and is
not repeated here.
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Summary of the Regulatory Changes
This section discusses regulatory
revisions that are expected to increase
NMFS’ ability to enforce fishing activity
in and around restricted areas, and
result in cost savings, increased
profitability, and flexibility for the
groundfish fishery. This final rule:
• Increases the position transmission
rate requirements for certain vessels
using NOAA NMFS type-approved
vessel monitoring system (VMS) units;
• Amends the definition for
continuous transit;
• Allows midwater trawl vessels
participating in the Pacific whiting
fishery to change their landing
declarations while at sea;
• Exempts groundfish trawl vessels
from observer coverage while testing
authorized fishing gear; and
• Allows shorebased Individual
Fishing Quota (IFQ) fixed gear vessels to
retrieve pot gear in one management
area and deploy that gear in another
management area on a single trip.
A. Increased Position Transmission Rate
for Groundfish VMS
Vessels participating in the limited
entry groundfish fishery (limited entry
‘‘A’’ endorsed permit), any vessels using
non-groundfish trawl gear (ridgeback
prawn, California halibut, and sea
cucumber trawl) in the Exclusive
Economic Zone (EEZ), and any vessels
that use open access gear to take and
retain or possess groundfish in the EEZ
or land groundfish taken in the EEZ
(salmon troll, prawn trap, Dungeness
crab, halibut longline, California halibut
line gear, and sheephead trap), are
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required to install a NMFS Office of Law
Enforcement (OLE) type-approved
mobile transceiver unit and to arrange
for a NMFS OLE type-approved
communications service provider to
receive and relay transmissions to
NMFS OLE prior to fishing. These units
automatically record a vessel’s position
(i.e., the vessel’s geographic location in
latitude and longitude coordinates), and
transmit those coordinates to a
communications service provider. The
current regulations require that VMS
units transmit a vessel’s position once
every hour, 24 hours a day throughout
the fishing year. Less frequent position
reporting, at least once every 4 hours,
may be authorized when a vessel has
temporarily paused participation in the
fishery and remains in port for an
extended period of time. The VMS units
record vessel positions at a random time
during each hour so that vessel
operators are unaware of when the
vessel position is being recorded.
The Council recommended increasing
the vessel position frequency to increase
NMFS’ ability to enforce fishing activity
around restricted areas. This action
increases the position transmission rate
to every 15 minutes per hour for
groundfish vessels required to use
NMFS type-approved VMS units. This
increase in frequency will produce more
course, location, and speed data to
improve NMFS’ ability to identify
whether vessels are continuously
transiting in restricted areas or not.
Increasing the VMS position
transmission rate from once every hour
to every 15 minutes will increase vessel
operating costs. While vessels can
choose from a variety of VMS service
providers, the average monthly
operating costs for transmissions every
15 minutes is $105 per month ($69 to
$150 range) compared to an average of
$50 per month ($37 to $65 range) for a
single transmission per hour.
The final rule also adds two
exemptions that will reduce redundant
reporting and may provide cost savings
to some portions of the fleet. For the
first exemption, vessels that have
installed and are using electronic
monitoring (EM) systems for the
duration of the fishing year can
maintain the current position
transmission rate of one transmission
per hour. EM systems include a Global
Positioning System (GPS) that records
the vessel position every 10 seconds.
Because EM systems record vessel
positions so frequently, it is not
necessary to also increase the VMS
position transmission rates. The GPS
data are recorded to a hard drive, which
the captain removes every 10 days and
mails to the Pacific States Marine
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35595
Fisheries Commission. For the second
exemption, limited entry trawl vessels
fishing with midwater trawl gear can
maintain the current position
transmission rate of one transmission
per hour. Limited entry vessels are only
allowed to use midwater trawl gear to
target whiting or non-whiting
groundfish species during the primary
whiting season from May 15 to
December 31 each year. These vessels
are also limited to using midwater trawl
gear seaward of the boundary line
approximating the 150 fm (274 m) depth
contour (defined at 50 CFR 660.73)
south of 40°10′ North (N) latitude (lat.),
but can use midwater trawl gear
anywhere within the EEZ north of
40°10′ N lat. Because there are only very
broad seasonal and area restrictions
associated with midwater trawl gear,
and because these vessels are not
generally subject to smaller geographic
areas restrictions such as essential fish
habitat conservation areas (EFHCAs),
the increased position transmission rate
is not necessary for restricted area
enforcement for vessels using midwater
trawl gear. Limited entry vessel
operators are allowed to change their
transmission rates or VMS declaration
reports on a trip-by-trip basis when
necessary.
B. Continuous Transit Definition
This rule revises the current
definition of ‘‘continuous transiting or
transit through’’ to encompass a broader
array of vessel activity that is akin to
loitering within a restricted area,
whether that be by means of a source of
power or by drifting with the prevailing
water current or weather conditions.
Under this revised definition, visual,
electronic, or other evidence of vessel
activity should provide information on
vessel speed and course sufficient to
indicate direct and expeditious
transiting of a restricted area.
C. Exemption From Observer Coverage
While Testing Gear
This final rule establishes a definition
for gear testing. The definition states
that gear testing is the deployment of
lawful gear without retaining fish, for
purposes, including, but not limited to:
Deployment of nets using open codends;
calibration of engines and transmission
under load (i.e., towing a net with an
open codend); deployment of wire and/
or doors; testing new electronic
equipment associated with deploying
fishing gear; and testing and calibration
of newly installed propulsion systems
(i.e., engine, transmission, shaft,
propeller, etc.).
This final rule also exempts
groundfish vessels participating in the
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shorebased IFQ, Mothership (MS), and
Catcher-Processor (C/P) sectors from the
requirement to carry an observer while
testing gear. Vessels participating in
these sectors are subject to a 100 percent
observer requirement while conducting
fishing activity. However, a vessel
would not need an observer while
testing gear because gear testing activity
would specifically prohibit retaining
fish. In addition to being prohibited
from retaining fish while gear testing,
vessels would be prohibited from testing
experimental gear, testing with a closed
codend, terminal gear, or with open
pots, and from testing gear in groundfish
conservation areas or EFHCAs.
This final rule adjusts the declaration
requirements for testing gear. To be
exempted from observer coverage while
testing gear, vessels need to
communicate with both West Coast
Groundfish Observer Program (WCGOP)
and NMFS OLE. Vessels are required to
notify WCGOP by phone or email, of the
gear testing activity at least 48 hours
prior to departing on a trip to test gear
or equipment. This action also adds a
VMS declaration code for ‘‘Gear
testing.’’ When a vessel operator calls
the West Coast Groundfish Declaration
Line to declare ‘‘Gear testing,’’ the VMS
technician will review the information
submitted and determine if the vessel is
eligible for this declaration. This
measure will result in observer coverage
cost savings on trips to test fishing gear
or equipment.
D. Declaration Changes at Sea for
Whiting Fishery
This final rule revises restrictions on
midwater trawl catcher vessels
participating in the Pacific whiting
fishery to allow them to change
declarations while at sea by calling the
West Coast Groundfish Declaration
Line. After a vessel offloads onto a
mothership, it can immediately change
its declaration from one of the ‘‘Pacific
whiting mothership sector’’ declarations
to one of the ‘‘Pacific whiting
shorebased IFQ’’ declarations to make a
tow and offload on shore, or vice versa.
In the past, midwater catcher trawl
vessels participating in the Pacific
whiting fishery were restricted to
landing either at a mothership or
shoreside processor. After Pacific
whiting catcher vessels have made their
delivery obligation to a mothership,
they were not allowed to make a tow for
a delivery to a shoreside processor
without returning to port first.
Allowing vessels to change their
declarations at sea provides vessels the
opportunity to optimize available
resources before returning to port. As a
result, vessels will spend less time at
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sea, and in transit to and from fishing
ports, which will ultimately reduce the
cost of fuel and crew.
E. Movement of IFQ Fishpot Gear Across
Management Lines
The final rule allows shorebased IFQ
fixed gear vessels retrieving pots from
one management area to retain their
catch on board and move to a second
management area to deploy pots. These
pots may be either baited or not baited.
The vessel may then return to port to
deliver their fish, then return to retrieve
their pots from the second management
area. Although the adjustment increases
operational flexibility in deploying pots,
vessels are still only permitted to retain
and land fish from a single management
area. This will ensure the integrity of
data to support stock assessments and
catch monitoring for a single
management area. Overall, fishing
vessels will spend less time at sea,
which should reduce the cost of fishing.
F. Comments and Responses
NMFS received 13 comment letters
during the comment period for the
proposed rule. Commenters included
Oceana, an environmental organization,
the California Department of Fish and
Wildlife, seven commercial fishermen,
three fishing associations, and a private
citizen. Only comments relevant to
measures considered in the proposed
rule are summarized and addressed
below. Comments related to other
fishery actions, general fishery
management, or unrelated to fisheries
are not addressed here. All public
comment letters can be viewed along
with the proposed rule and supporting
documents for this action at
www.regulations.gov.
Comment 1: Seven commercial
fishermen and three fishing associations
opposed increasing the VMS
transmission rates from once-per-hour
to four times per-hour because
increasing the transmission rate will
increase VMS operating costs.
Response: The Council recommended
increasing the VMS transmission rate
frequency to improve NMFS’ capacity to
enforce fishing activity around
restricted areas. The analytic document
and the preamble to the proposed rule
discuss that the once-per-hour
transmission rate is insufficient to prove
that a vessel was not operating in
continuous transit through a restricted
area. The increased transmission
frequency provides more course,
location, and speed data to improve
NMFS’ ability to identify whether
vessels are continuously transiting
restricted areas or not.
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In addition, NMFS recently revised
the network of groundfish essential fish
habitat (EFH) conservation areas, areas
closed to either bottom trawling or
bottom contact fishing gear, in
Amendment 28 to the Pacific Coast
Groundfish FMP (84 FR 63966;
November 19, 2019). In April 2018,
while the Council was developing
Amendment 28, its Enforcement
Committee evaluated the enforceability
of proposed new and revised EFH
conservation areas. The evaluation
concluded that the once-per-hour
transmission rate did not provide
sufficient data to enforce 9 of the 46
areas recommended by the Council,
noted that a four times-per-hour
transmission rate greatly improved
monitoring incursions, and
recommended that NMFS expedite this
action. NMFS estimates, based on the
Enforcement Committee’s prior
evaluation, that three EFH conservation
areas may continue to present
enforcement challenges under the four
times-per-hour transmission rate
because of their narrow shape.
Ultimately, the Council and NMFS
determined that the conservation
benefits from increasing our ability to
enforce restricted areas justified the
potential additional operating cost for
fishery participants.
The Council did recommend an
option to reduce the operating costs of
increasing the VMS transmission rate.
As an alternative, commercial fishermen
would be allowed to use a non typeapproved VMS unit. These units would
not be NMFS type-approved, but meet
NMFS reporting standards (e.g., type
and frequency of data collected, form of
transmittal, ruggedized, and an
encrypted format) with a reduced
operating cost. NMFS OLE and the West
Coast Region identified a number of
implementation challenges in creating a
non type-approved VMS program for the
only the West Coast Region, including
lack of funding and staffing resources.
Ultimately, the Council withdrew its
recommendation to implement a non
type-approved VMS unit, but
maintained its recommendation to
increase the ping rate.
NMFS remains committed to
exploring cost-effective solutions to
meet regional and national monitoring
needs. For example, on February 24,
2020, NMFS published a proposed rule
to amend the national type-approval
requirements (85 FR 4257). In an effort
to improve location reporting and get
more data at a lower cost to the
fishermen, this proposed rule will allow
for fishermen to use cellular-based
transceiver types, as opposed to
satellite-only models.
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As data is much less expensive to
send by cellular means than by satellite,
this action could provide a more costeffective option to require and receive
beneficial fisheries data. The Council
would need to evaluate the use of
cellular-based systems for monitoring
groundfish fisheries to fully understand
coverage limitations and determine
whether this tool is appropriate for the
fishery.
Comment 2: California Department of
Fish and Wildlife (CDFW) requested
clarification about the vessels subject to
the groundfish VMS requirement. The
CDFW commented that the description
of the measures in the proposed rule
implies that additional vessels or fleets,
including salmon troll, prawn trap,
Dungeness crab, halibut longline,
California halibut line gear, and
sheephead trap, that were not
previously subject to the requirement
will now need to obtain and operate a
VMS unit on trips. Two commercial
fishermen questioned why the
recreational fleet is not required to have
VMS.
Response: This rule only modifies the
frequency of VMS transmission rates,
and does not modify the vessels or fleets
that are subject to the VMS requirement.
Currently, any vessel with a limited
entry ‘‘A’’ endorsed permit, any vessel
that uses non-groundfish trawl gear to
fish in the EEZ, and any vessel that uses
open access gear to take and retain, or
possess groundfish, or land groundfish
taken in the EEZ, is required to maintain
an operational VMS unit. If vessels
using open access gear do not take and
retain, or possess groundfish, or land
groundfish taken in the EEZ, then these
vessels are not subject to the VMS
requirement. All vessels and fleets that
are currently subject to the VMS
requirement are subject to the increased
transmission rate. The Council did not
consider including a VMS requirement
for the recreational fishing fleet
(including charter and private sectors)
in this action.
Comment 3: Two commercial
fishermen commented that VMS
position transmission rates should be
unpredictable so that vessels cannot
deliberately evade location monitoring.
They also commented that NMFS
should work with service providers to
develop store and forward capability for
VMS software to reduce transmission
costs.
Response: Vessels are required to use
NMFS type-approved VMS units that
have defined standards for basic
features, described at 50 CFR 600.1500.
These VMS units document a vessel’s
position a predetermined number of
times per hour. For example, a four-
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times-per-hour requirement would
result in positions documented every 15
minutes, and a six-times-per-hour
requirement would result in positions
documented every 10 minutes. For
enforcement effectiveness, vessel
operators and NMFS enforcement are
unaware of exactly when the VMS unit
is transmitting these position signals to
the service providers. For example, with
a four-times-per-hour requirement, the
unit may transmit a position signal
during the second minute of the first 15minute interval of the hour, and during
the tenth minute of the second 15minute interval of the hour. Because
operators are unaware of when the VMS
units are recording and transmitting
position information, it is unlikely that
vessel operators will be able to alter
their vessel trajectory to conceal
prohibited fishing activities.
The National VMS program does not
currently permit satellite store and
forward for type-approved VMS units.
NMFS OLE considered allowing the use
of limited store and forward position,
but determined that because the
magnitude of monthly operating costs is
based on the amount of data being
transmitted, rather than the frequency of
transmission, the potential for cost
savings with store and forward for
satellite VMS units is insignificant to
nonexistent.
Comment 4: Oceana and one
unaffiliated private citizen supported
the changes to the VMS transmission
frequency. They commented that the
increased transmission frequency is
necessary to adequately monitor and
enforce conservation areas in federally
managed groundfish fisheries including
groundfish conservation areas, rockfish
conservation areas and EFH
conservation areas.
Response: NMFS agrees. The final
rule implements the Council’s
recommendation to increase the VMS
transmission frequency to four-per-hour,
which will provide additional
information on vessel location to more
accurately monitor groundfish fisheries
and conservation areas.
Comment 5: Oceana commented that
NOAA should expand its use of
enhanced electronic monitoring
systems, including gear sensors that can
indicate when fishing activity is
occurring and GPS units that can make
detailed and accurate records of vessel
positions.
Response: NMFS encourages all
fishery stakeholders, including the
Fishery Management Councils, to
consider implementing electronic
technology (ET) options where
appropriate to meet science,
management, and data needs. NMFS
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released a national Policy on Electronic
Technologies and Fishery-dependent
Data Collection in 2013 to provide
guidance on the implementation of ET
solutions and in fisheries. An updated
policy was released in May 2019. In
2015, NMFS implemented regional ET
implementation plans informed by a
series of national-level planning
documents. These plans were created to
help move beyond pilot projects by
identifying, evaluating, and prioritizing
implementation of promising electronic
technologies in specific fisheries around
the country. We are in the process of
updating these plans, highlighting the
lessons-learned from the last 4 years,
and looking forward to 2024. The
Pacific Council is scheduled to review
a draft of the new ET plan at their June
2020 meeting. On the west coast, NMFS
currently has an electronic monitoring
program in place for two sectors of the
groundfish fishery. Catcher vessels in
the Pacific whiting fishery (shorebased
Individual Fishing Quota (IFQ) and atsea Mothership Catcher Vessels) are
exempt from increasing their VMS
transmissions to four times-per-hour
while using EM. NMFS is also working
to increase EM opportunities for the
limited entry groundfish trawl fishery
(including midwater trawl gear and
bottom trawl gear). These EM systems
include gear sensors and GPS units that
can indicate when and where fishing
activity is occurring.
Comment 6: One commercial
fisherman commented that, in a
personal communication with one of the
VMS service providers, the service
provider stated that the most frequent
transmission rate for VMS systems
nationwide is twice-per-hour. The
commenter requested that NMFS
consider implementing a VMS position
transmission frequency of two timesper-hour to be consistent with other
fisheries in the U.S., and to help reduce
VMS costs.
Response: NMFS agrees that several
fisheries in other regions require fewer
than four position transmissions per
hour but notes that the required position
transmission rate for each fishery
depends on the location monitoring
needs of the fishery. For this reason,
there is no standard, nationwide
position transmission rate. As described
in the response to Comment 1, the
Council and NMFS determined that a
more frequent position transmission rate
is necessary to monitor area incursions
for the Pacific Coast groundfish fishery.
In its deliberations for this action, the
Council did consider implementing
position transmission frequencies of
two- and three-times per hour. However,
these alternatives were rejected because
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these position transmission frequencies
did not provide frequent enough
information for enforcement to
determine a vessel’s course or fishing
activity in small restricted areas.
Comment 7: The Ventura County
Commercial Fishermen’s Association,
the San Diego Fishermen’s Working
Group, and a private citizen commented
that the current once per hour ping rate
has proved to be an effective deterrent
to illegal fishing in EFH Conservation
Areas, Rockfish Conservation Areas,
Marine Protected Areas and the
multitude of other Reserves and
Conservation Areas up and down the
Pacific West Coast.
Response: VMS is a practical tool for
monitoring vessel activity in relation to
restricted areas. As described in the
response to Comment 1, the new and
revised closed areas implemented in
Amendment 28 to the Pacific Coast
Groundfish Fishery Management Plan
require an increased VMS transmission
rate to effectively monitor fishing
activity. A VMS transmission rate of
four-times-an-hour will improve
monitoring to deter possible illegal
fishing.
Comment 8: One commercial
fisherman commented that NMFS
should get location data from logbooks.
Response: Although logbooks require
vessels to report coordinates for fishing
activity, NMFS does not have the
opportunity to review these coordinates
until after the vessels have returned to
port. VMS provides accurate
information on the location of the vessel
and can be used to identify where
fishing activity takes place with a
reasonable degree of accuracy while a
trip is underway.
The VMS requirement also extends to
a broader range of participants in the
groundfish fishery than the logbook
requirement. Currently, the groundfish
trawl fleet is the only groundfish fleet
required to submit a Federal logbook.
Although trawl vessels are required to
submit coordinates for each haul, the
information provided in the logbooks
only describes tow information, and
does not include information about
vessel trajectory. The VMS requirement
for the groundfish fishery applies to
vessels with a limited entry ‘‘A’’
endorsed permit, any vessel that uses
non-groundfish trawl gear to fish in the
EEZ, and any vessel that uses open
access gear to take and retain, or possess
groundfish, or land groundfish taken in
the EEZ. For these reasons, VMS is
currently a more comprehensive tool to
monitor vessel movement than
logbooks.
Comment 9: The South Bay Cable/
Fisheries Liaison Committee and
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Ventura County Commercial
Fishermen’s Association believes there
are going to be major structural changes
to southern California Rockfish
Conservation Areas (RCA) and possibly
even the elimination of the Cowcod
Conservation Areas (CCA) in this next
groundfish specifications cycle. The
groups requested that the Council
reconsider its support for and its
recommendation to increase the ping
rate for groundfish vessels, and others.
Response: The Council is not
planning to consider major adjustments
to the non-trawl RCA or CCA in the
2021–2022 specifications action. The
Council has, however, indicated it
intends to consider changes to these
management areas in a future action.
The Council can evaluate monitoring
needs for the non-trawl portion of the
groundfish fleet in conjunction with
that action.
Comment 10: Three commercial
fishermen commented that due to
restrictions on turning off the VMS unit
when not fishing, the increase to annual
VMS operating costs will be too
expensive. The commenters asked
NMFS to consider allowing a reduction
in transmissions when a vessel is in
port.
Response: NMFS acknowledges that
there are situations in which fishermen
may need to be exempted from
operating their VMS units. The existing
regulations already include an in port
exemption that allows vessels to reduce
their signals to at least once every four
hours while a vessel remains in port for
an extended period of time. In addition,
vessels operating with EM and vessels
fishing in the limited entry midwater
trawl fishery are allowed to maintain at
one signal per hour. Additional cost
saving exemptions, such as the
exemption recommended in the
comment, would need to be considered
through the Council process.
Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this final rule is consistent with the
Pacific Coast Groundfish FMP, other
provisions of the Magnuson-Stevens
Act, and other applicable law.
The Office of Management and Budget
has determined that this final rule is not
significant for purposes of Executive
Order (E.O.) 12866.
This final rule is considered an
Executive Order 13771 deregulatory
action. This final rule removes
restrictions on catcher vessels to allow
them to change their declarations while
at sea. After a catcher vessel offloads
onto a mothership, it can immediately
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change its declaration from the Pacific
whiting mothership sector to Pacific
whiting shorebased IFQ sector to make
a tow and offload on shore, or vice
versa. Removing this restriction creates
additional flexibility for vessel
operation and may increase revenues.
This final rule eliminates the
requirement for vessels participating in
the shorebased IFQ Program and
Mothership or Catcher-Processor
cooperatives to carry an observer while
testing fishing gear. Removing this
restriction reduces operating costs while
testing gear. Finally, the revised
regulations allow pot gear (fixed gear)
vessels retrieving gear from one
management area to retain their catch
on board and move to a second
management area to deploy pots. The
vessel may then return to port to deliver
their fish, then return to retrieve their
pots from the second management area.
This change increases operational
flexibility, while ensuring the integrity
of data to support stock assessments and
catch monitoring for a single
management area.
Pursuant to Executive Order 13175,
this final rule was developed after
meaningful consultation and
collaboration with tribal officials from
the area covered by the Pacific Coast
Groundfish FMP. Under the MagnusonStevens Act at 16 U.S.C. 1852(b)(5), one
of the voting members of the Pacific
Council must be a representative of an
Indian tribe with federally recognized
fishing rights from the area of the
Council’s jurisdiction.
This final rule does not contain
policies with Federalism or ‘‘takings’’
implications as those terms are defined
in E.O. 13132 and E.O. 12630,
respectively.
This action is categorically excluded
from the requirement to prepare an
environmental assessment or
environmental impact statement in
accordance with section 4 of NOAA’s
Policies and Procedures for Compliance
with the National Environmental Policy
Act (NEPA) and Related Authorities
(Companion Manual for NAO 216–6A).
Per section 4B of the Manual, a
categorical exclusion (CE) evaluation
document has been prepared that
evaluates the applicability of the CE.
NMFS prepared a final regulatory
flexibility analysis (FRFA) under section
604 of the Regulatory Flexibility Act
(RFA), which incorporates the initial
regulatory flexibility analysis (IRFA)
prepared during the proposed rule stage.
A copy of the FRFA and CE memo are
available from NMFS (see ADDRESSES),
and, as per the requirements of 5 U.S.C.
604(a), the text of the FRFA follows.
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Final Regulatory Flexibility Act
Analysis
For any rule subject to notice and
comment rulemaking, the RFA requires
Federal agencies to prepare, and make
available for public comment, both an
initial and final regulatory flexibility
analysis, unless the agency can certify
that the proposed and/or final rule
would not have a significant economic
impact on a substantial number of small
entities. These analyses describe impact
on small businesses, non-profit
enterprises, local governments, and
other small entities as defined by the
RFA (5 U.S.C. 603). This analysis is to
inform the agency and the public of the
expected economic effects of the
alternatives, and aid the agency in
considering any significant regulatory
alternatives that would accomplish the
applicable objectives and minimized the
economic impact on affected small
entities. The RFA does not require that
the alternative with the least cost or
with the least adverse effect on small
entities be chosen as the preferred
alternative.
The need for and objective of this
final rule is described above in the
Background section of this preamble
and not repeated here.
A Statement of the Significant Issues
Raised by the Public Comments in
Response to the IRFA
No public comments were received in
response to the IRFA. We received a
comment on the economic impact and
a response is provided earlier in the
preamble under comment 1.
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The Response of the Agency to Any
Comments Filed by the Chief Counsel
for Advocacy in Response to the Final
Rule
No agency response was required, as
no comments were received.
A Description and, Where Feasible,
Estimate of the Number of Small
Entities to Which the Final Rule Will
Apply
The RFA (5 U.S.C. 601 et seq.)
requires government agencies to assess
the effects that regulatory alternatives
would have on small entities, defined as
any business/organization
independently owned and operated, not
dominant in its field of operation
(including its affiliates).
For RFA purposes only, NMFS
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 (NAICS code 11411)
is classified as a small business if it is
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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.
For the purposes of our Regulatory
Flexibility Act (RFA) analysis, the final
action is considered to regulate
ownership entities that are potentially
affected by the action. The U.S. Small
Business Association (SBA) established
criteria for business in the fishery sector
to qualify as small entities. Limited
entry groundfish vessels directly
regulated by this action are required to
renew a permit annually, and the
application asks for entity size
including affiliation. Of those who
responded as being large entities, 15
permits owned by 9 large entities were
attached to vessels that participated in
bottom trawl or fixed gear groundfish
fisheries in 2018 and are the most likely
to be impacted by the rule.
Of the 856 vessels impacted by this
rule, none had annual ex-vessel revenue
on the West Coast (participation in other
fisheries is not known) greater than the
NMFS $11 million size standard. The
top three revenue vessels, all in the IFQ
fishery, had an average revenue of $1.9
million in 2018 in all West Coast
fisheries. In contrast, the bottom 10
earning vessels had revenues in all West
Coast fisheries of less than $1,000.
While the analysis relies on 2018 data,
there have not been significant changes
in the number of entities or relative
small business size status of the fleet
from 2018 to 2019.
Reporting and Record-Keeping
Requirements
This action changes two information
collection requirements.
NMFS Type-Approved VMS
Transmission Rate Increase
This action adjusts the position
transmissions rate for certain vessels
using NMFS type-approved vessel
monitoring system units, including
limited entry groundfish vessels, vessels
using non-groundfish trawl gear in the
EEZ (ridgeback prawn, California
halibut, and sea cucumber trawl), and
any vessels that use open access gear
targeting groundfish take and retain,
possess groundfish or land groundfish
taken in the EEZ in the EEZ (salmon
troll, prawn trap, Dungeness crab,
halibut longline, California halibut line
gear, and sheephead trap). Vessel
owners are required to increase their
position transmission rate from onceper- hour to four times- per hour.
Vessels that are operating with
electronic monitoring or in port for an
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35599
extended period of time will be exempt
from this increase and allowed to
continue with a rate of four-times-perhour.
Addition of a Declaration for Testing
Fishing Gear
The final action adds a declaration for
gear testing so vessels will be exempt
from observer coverage while testing
gear and restricted from harvesting fish,
and allow Groundfish midwater trawl
vessels participating in the Pacific
whiting fishery (shorebased IFQ Sector
and the MS Sector), to make a new
declaration from sea and allowed to
make a tow for a delivery to a shoreside
processor without returning to port first.
The numbers of declaration reports the
vessel operator is required to submit to
NMFS would not change under this
request. Therefore, no small entity
would be subject to additional reporting
requirements.
Federal Rules Which May Duplicate,
Overlap, or Conflict With This Proposed
Rule
There are no relevant Federal rules
that may duplicate, overlap, or conflict
with this action.
Description of Significant Alternatives
to This Final Rule That Minimize
Economic Impact on Small Entities
NMFS considered sub alternatives to
the proposed rule that may have
minimized significant economic impact,
but not meet stated objectives of
applicable statutes. The Council briefly
considered increasing the position
transmission signal to every 30 minutes
or every 20 minutes, but rejected those
alternatives from further analysis
because those position transmission
signals may not be frequent enough to
provide information to enforce small
restricted areas, or provide enough
information to calculate a vessel’s
course for enforcement of continuous
transit requirements.
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
rules, and shall designate such
publications as ‘‘small entity
compliance guides.’’ The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, a small entity
compliance guide (the guide) was
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prepared. Copies of this final rule are
available from the West Coast Regional
Office (see ADDRESSES), and the guide
will be included in a notice sent to all
members of the groundfish email group.
To sign-up for the groundfish email
group, click on the ‘‘subscribe the the
Groundfish Email Group’’ link on the
following website: https://
www.fisheries.noaa.gov/species/westcoast-groundfish#commercial. The
guide and this final rule will also be
available on the West Coast Region’s
website (see ADDRESSES) and upon
request.
Paperwork Reduction Act (PRA)
Recordkeeping and Reporting
Requirements
This action contains changes to
information collection requirements
under OMB Control Number 0648–0573,
West Coast Region Vessel Monitoring
Requirement in the Pacific Coast
Groundfish Fishery, described in this
final rule, which have been submitted to
the Office of Management and Budget
(OMB).
The first change is to adjust the VMS
signal transmissions for certain vessels
using NMFS type-approved vessel
monitoring system units, including
limited entry groundfish vessels, vessels
using non-groundfish trawl gear in the
EEZ (ridgeback prawn, California
halibut, and sea cucumber trawl), and
any vessels that use open access gear to
take and retain, or possess groundfish in
the EEZ or land groundfish taken in the
EEZ (salmon troll, prawn trap,
Dungeness crab, halibut longline,
California halibut line gear, and
sheephead trap). A NMFS typeapproved VMS mobile transceiver unit
continuously provides the vessel’s
position throughout the fishing season.
Vessel owners would be required to
increase their transmission rates from
once-per-hour to four-times-per-hour.
Vessels that are operating with
electronic monitoring or in port for an
extended period of time, will be exempt
from this increase and allowed to
continue with a rate of one-time-perhour. The proposed change will not
affect the number of entities required to
comply with this requirement.
The next change is to adjust
notification requirements for groundfish
trawl vessels testing gear. Vessels
participating in the shorebased IFQ, MS,
or C/P Sectors will be able to declare
‘‘gear/equipment testing’’ and receive an
exemption from observer coverage. This
action would not affect the number of
entities required to comply with the
declaration requirement. Therefore, the
proposed change would not be expected
to increase the time or cost burden
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associated with this requirement. Lastly,
this action allows Pacific whiting
catcher vessels to change their
declarations at-sea. After vessels have
met their delivery obligations, they can
immediately change their declaration
from ‘‘Pacific whiting motherships
sector’’ to ‘‘Pacific whiting shorebased
IFQ’’ to make a tow and offload on
shore. This action would not be
expected to change the time or cost
burden or number of entities associated
with this requirement.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian
Fisheries.
Dated: May 18, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, NOAA amends 50 CFR part
660 is as follows:
PART 660—FISHERIES OFF WEST
COAST STATES
1. The authority citation for part 660
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C.
773 et seq., and 16 U.S.C. 7001 et seq.
2. In § 660.11, revise the definition of
‘‘Continuous transiting or transit
through’’ and add the definition of
‘‘Gear testing’’ in alphabetical order to
read as follows:
■
§ 660.11
General definitions.
*
*
*
*
*
Continuous transiting or transit
through means that a vessel crosses a
groundfish conservation area or EFHCA
on a heading as nearly as practicable to
a direct route, consistent with
navigational safety, while maintaining
expeditious headway throughout the
transit without loitering or delay.
*
*
*
*
*
Gear testing means the deployment of
lawful gear without retaining fish, for
the following purposes, including, but
not limited to: Deployment of nets using
open codends; calibration of engines
and transmission under load (i.e.,
towing a net with an open codend);
deployment of wire and/or doors;
testing new electronic equipment
associated with deploying fishing gear;
and testing and calibration of newly
installed propulsion systems (i.e.,
engine, transmission, shaft, propeller,
etc.).
*
*
*
*
*
■ 3. In § 660.13, revise paragraph
(d)(1)(ii) and add paragraph
(d)(4)(iv)(A)(30) to read as follows:
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§ 660.13
Recordkeeping and reporting.
*
*
*
*
*
(d) * * *
(1) * * *
(ii) Limited entry midwater trawl
vessels targeting Pacific whiting may
change their declarations while at sea
between the Pacific whiting shorebased
IFQ sector and the mothership sector as
specified at paragraph (d)(4)(iv)(A) of
this section. The declaration must be
made to NMFS before a different sector
is fished.
*
*
*
*
*
(4) * * *
(iv) * * *
(A) * * *
(30) Gear testing.
*
*
*
*
*
■ 4. In § 660.14, revise paragraphs
(d)(1), (d)(2) introductory text, and
(d)(3), and (5) to read as follows:
§ 660.14 Vessel Monitoring System (VMS)
requirements.
*
*
*
*
*
(d) * * *
(1) Obtain a NMFS OLE typeapproved mobile transceiver unit and
have it installed on board your vessel in
accordance with the instructions
provided by NMFS OLE. You may
obtain a copy of the VMS installation
and operation instructions from the
NMFS OLE West Coast Region, VMS
Program Manager upon request at 7600
Sand Point Way NE, Seattle, WA 98115–
6349, phone: 888–585–5518 or
wcd.vms@noaa.gov.
*
*
*
*
*
(2) Activate the mobile transceiver
unit, submit an activation report at least
72 hours prior to leaving port on a trip
in which VMS is required, and receive
confirmation from NMFS OLE that the
VMS transmissions are being received
before participating in a fishery
requiring the VMS. Instructions for
submitting an activation report may be
obtained from the NMFS OLE West
Coast Region, VMS Program Manager
upon request at 7600 Sand Point Way
NE, Seattle, WA 98115–6349, phone:
888–585–5518 or wcd.vms@noaa.gov.
An activation report must again be
submitted to NMFS OLE following
reinstallation of a mobile transceiver
unit or change in service provider before
the vessel may be used to fish in a
fishery requiring the VMS.
*
*
*
*
*
(3) Operate and maintain the mobile
transceiver unit in good working order
continuously, 24 hours a day
throughout the fishing year, unless such
vessel is exempted under paragraph
(d)(4) of this section.
(i) Position frequency. The mobile
transceiver unit must transmit a signal
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accurately indicating the vessel’s
position at least once every 15 minutes,
24 hours a day, throughout the year
unless an exemption in paragraph
(d)(3)(ii) of this section applies or a
valid exemption report, as described in
paragraph (d)(4) of this section, has been
received by NMFS OLE. The signal
indicating the vessel’s position can
consist of either: A single position
report transmitted every 15 minutes; or
a series of position reports, at no more
than a 15 minute interval, combined
and transmitted at least once every
hour.
(ii) Exemptions to position frequency
requirement.—(A) Electronic monitoring
exemption. If a vessel has an electronic
monitoring system installed and in use
for the duration of a given fishing year,
the mobile transceiver unit must
transmit a signal at least once every
hour.
(B) Midwater trawl exemption. If a
limited entry trawl vessel is fishing with
midwater trawl gear under declarations
in paragraph (d)(4)(iv)(A) of this section,
the mobile transceiver unit must
transmit a signal at least once every
hour.
(C) In port exemption. If a vessel
remains in port for an extended period
of time, the mobile transceiver unit
must transmit a signal at least once
every four hours. The mobile transceiver
unit must remain in continuous
operation at all times unless the vessel
is exempt under paragraph (d)(4) of this
section.
*
*
*
*
*
(5) When aware that transmission of
automatic position reports has been
interrupted, or when notified by NMFS
OLE that automatic position reports are
not being received, contact NMFS West
Coast Region, VMS Program Manager
upon request at 7600 Sand Point Way
NE, Seattle, WA 98115–6349, phone:
888–585–5518 or wcd.vms@noaa.gov
and follow the instructions provided to
you. Such instructions may include, but
are not limited to, manually
communicating to a location designated
by NMFS OLE the vessel’s position or
returning to port until the VMS is
operable.
*
*
*
*
*
■ 5. In § 660.112, revise paragraph (a)(4)
and add paragraphs (a)(7) and
(b)(1)(xvii) to read as follows:
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§ 660.112
Trawl fishery—prohibitions.
*
*
*
*
*
(a) * * *
(4) Observers. (i) Fish in the
Shorebased IFQ Program, the MS Coop
Program, or the C/P Coop Program
without observer coverage unless
exempt from the observer coverage
requirement for gear testing activity and
have satisfied the declaration and
notification requirements, as described
in § 660.140(h), § 660.150(j), or
§ 660.160(g).
(ii) Fish in the Shorebased IFQ
Program, the MS Coop Program, or the
C/P Coop Program if the vessel is
inadequate or unsafe for observer
deployment as described at § 660.12(e).
(iii) Fail to maintain observer
coverage in port as specified at
§ 660.140(h)(1)(i).
*
*
*
*
*
(7) Gear testing. (i) Retain fish while
gear testing.
(ii) Fish with a closed codend, use
terminal gear (i.e., hooks), or fish with
open pot gear while gear testing.
(iii) Test gear in groundfish
conservation areas described in
§ 660.70, or EFHCAs described in
§§ 660.76 through 660.79.
(iv) Test experimental gear, or any
other gear not currently approved for
groundfish fishing.
*
*
*
*
*
(b) * * *
(1) * * *
(xvii) When declared into the limited
entry groundfish non-trawl Shorebased
IFQ fishery, retain fish caught with
fixed gear in more than one IFQ
management area, specified at
§ 660.140(c)(1), on the same trip.
*
*
*
*
*
■ 6. In § 660.140, add paragraphs (c)(2)
and (h)(1)(i)(A)(5) to read as follows:
§ 660.140
Shorebased IFQ Program.
*
*
*
*
*
(c) * * *
(2) Moving pot or trap gear between
multiple IFQ management areas. A
vessel using fixed gear declared into the
limited entry groundfish non-trawl
Shorebased IFQ fishery may deploy pot
or trap gear in multiple IFQ
management areas on a trip provided
the vessel does not retrieve gear from
more than one IFQ management area
during a trip.
*
*
*
*
*
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35601
(h) * * *
(1) * * *
(i) * * *
(A) * * *
(5) Is exempt from the requirement to
maintain observer coverage as specified
in this paragraph (h) while gear testing
as defined in § 660.11. The vessel
operator must submit a valid declaration
for gear/equipment testing, as required
by § 660.13(d)(4)(iv)(A), and must notify
the Observer Program of the gear testing
activity at least 48 hours prior to
departing on a trip to test gear/
equipment.
*
*
*
*
*
■ 7. In § 660.150, add paragraph
(j)(1)(i)(C) to read as follows:
§ 660.150
Mothership (MS) Coop Program.
*
*
*
*
*
(j) * * *
(1) * * *
(i) * * *
(C) Gear testing exemption. Vessels
are exempt from the requirement to
maintain observer coverage as specified
in this paragraph (j) while gear testing
as defined at § 660.11. The vessel
operator must submit a valid declaration
for gear/equipment testing, as required
by § 660.13(d)(4)(iv)(A), and must notify
the Observer Program of the gear testing
activity at least 48 hours prior to
departing on a trip to test gear/
equipment.
*
*
*
*
*
■ 8. In § 660.160, add paragraph
(g)(1)(iv) to read as follows:
§ 660.160 Catcher/processor (C/P) Coop
Program.
*
*
*
*
*
(g) * * *
(1) * * *
(iv) Gear testing exemption. Vessels
exempt from the requirement to
maintain observer coverage as specified
in this paragraph (g) while gear testing
as defined at § 660.11. The vessel
operator must submit a valid declaration
for gear/equipment testing, as required
by § 660.13(d)(4)(iv)(A), and must notify
the Observer Program of the gear testing
activity at least 48 hours prior to
departing on a trip to test gear/
equipment.
*
*
*
*
*
[FR Doc. 2020–11011 Filed 6–10–20; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 85, Number 113 (Thursday, June 11, 2020)]
[Rules and Regulations]
[Pages 35594-35601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11011]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 200515-0141]
RIN 0648-BI45
Magnuson-Stevens Act Provisions; Fisheries off West Coast States;
Vessel Movement, Monitoring, and Declaration Management for the Pacific
Coast Groundfish Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises reporting and monitoring provisions for
vessels participating in the Pacific Coast groundfish fishery. This
would: Increase the position transmission rate for certain vessels
using NMFS type-approved vessel monitoring system units; allow midwater
trawl vessels participating in the Pacific whiting fishery to change
their landing declarations while at sea; exempt groundfish trawl
vessels from observer coverage while testing authorized fishing gear;
and allow shorebased Individual Fishing Quota fixed gear vessels to
deploy pot gear in one management area while retrieving gear from
another management area on a single trip. This action will increase
monitoring efficiency and effectiveness, improve enforcement of
restricted areas, and increase operational flexibility for groundfish
fishery participants.
DATES: Effective July 13, 2020, except for the amendments to Sec.
660.14, which are effective September 9, 2020.
ADDRESSES: Electronic copies of supporting documents referenced in this
final rule, including the Categorical Exclusions (CE) and final
regulatory flexibility analysis (FRFA), are available from
www.regulations.gov or from the NMFS West Coast Region Groundfish
Fisheries website at https://www.fisheries.noaa.gov/species/west-coast-groundfish.
[[Page 35595]]
FOR FURTHER INFORMATION CONTACT: Shannon Penna, Fishery Management
Specialist, 562-980-4238, or [email protected].
SUPPLEMENTARY INFORMATION:
Background
Between September 2014 and April 2016, the Pacific Fishery
Management Council (Council) developed and considered management
measures to address a range of vessel and gear movement issues and
aggregated these issues under a single vessel movement monitoring
agenda item. The Council deemed the proposed regulations consistent
with and necessary to implement this action in a July 17, 2019, letter
from Council Executive Director, Chuck Tracy, to Regional Administrator
Barry Thom. Additional background information on each of the measures
included in this final rule are included in the proposed rule,
published on October 10, 2019 (84 FR 54579), and is not repeated here.
Summary of the Regulatory Changes
This section discusses regulatory revisions that are expected to
increase NMFS' ability to enforce fishing activity in and around
restricted areas, and result in cost savings, increased profitability,
and flexibility for the groundfish fishery. This final rule:
Increases the position transmission rate requirements for
certain vessels using NOAA NMFS type-approved vessel monitoring system
(VMS) units;
Amends the definition for continuous transit;
Allows midwater trawl vessels participating in the Pacific
whiting fishery to change their landing declarations while at sea;
Exempts groundfish trawl vessels from observer coverage
while testing authorized fishing gear; and
Allows shorebased Individual Fishing Quota (IFQ) fixed
gear vessels to retrieve pot gear in one management area and deploy
that gear in another management area on a single trip.
A. Increased Position Transmission Rate for Groundfish VMS
Vessels participating in the limited entry groundfish fishery
(limited entry ``A'' endorsed permit), any vessels using non-groundfish
trawl gear (ridgeback prawn, California halibut, and sea cucumber
trawl) in the Exclusive Economic Zone (EEZ), and any vessels that use
open access gear to take and retain or possess groundfish in the EEZ or
land groundfish taken in the EEZ (salmon troll, prawn trap, Dungeness
crab, halibut longline, California halibut line gear, and sheephead
trap), are required to install a NMFS Office of Law Enforcement (OLE)
type-approved mobile transceiver unit and to arrange for a NMFS OLE
type-approved communications service provider to receive and relay
transmissions to NMFS OLE prior to fishing. These units automatically
record a vessel's position (i.e., the vessel's geographic location in
latitude and longitude coordinates), and transmit those coordinates to
a communications service provider. The current regulations require that
VMS units transmit a vessel's position once every hour, 24 hours a day
throughout the fishing year. Less frequent position reporting, at least
once every 4 hours, may be authorized when a vessel has temporarily
paused participation in the fishery and remains in port for an extended
period of time. The VMS units record vessel positions at a random time
during each hour so that vessel operators are unaware of when the
vessel position is being recorded.
The Council recommended increasing the vessel position frequency to
increase NMFS' ability to enforce fishing activity around restricted
areas. This action increases the position transmission rate to every 15
minutes per hour for groundfish vessels required to use NMFS type-
approved VMS units. This increase in frequency will produce more
course, location, and speed data to improve NMFS' ability to identify
whether vessels are continuously transiting in restricted areas or not.
Increasing the VMS position transmission rate from once every hour
to every 15 minutes will increase vessel operating costs. While vessels
can choose from a variety of VMS service providers, the average monthly
operating costs for transmissions every 15 minutes is $105 per month
($69 to $150 range) compared to an average of $50 per month ($37 to $65
range) for a single transmission per hour.
The final rule also adds two exemptions that will reduce redundant
reporting and may provide cost savings to some portions of the fleet.
For the first exemption, vessels that have installed and are using
electronic monitoring (EM) systems for the duration of the fishing year
can maintain the current position transmission rate of one transmission
per hour. EM systems include a Global Positioning System (GPS) that
records the vessel position every 10 seconds. Because EM systems record
vessel positions so frequently, it is not necessary to also increase
the VMS position transmission rates. The GPS data are recorded to a
hard drive, which the captain removes every 10 days and mails to the
Pacific States Marine Fisheries Commission. For the second exemption,
limited entry trawl vessels fishing with midwater trawl gear can
maintain the current position transmission rate of one transmission per
hour. Limited entry vessels are only allowed to use midwater trawl gear
to target whiting or non-whiting groundfish species during the primary
whiting season from May 15 to December 31 each year. These vessels are
also limited to using midwater trawl gear seaward of the boundary line
approximating the 150 fm (274 m) depth contour (defined at 50 CFR
660.73) south of 40[deg]10' North (N) latitude (lat.), but can use
midwater trawl gear anywhere within the EEZ north of 40[deg]10' N lat.
Because there are only very broad seasonal and area restrictions
associated with midwater trawl gear, and because these vessels are not
generally subject to smaller geographic areas restrictions such as
essential fish habitat conservation areas (EFHCAs), the increased
position transmission rate is not necessary for restricted area
enforcement for vessels using midwater trawl gear. Limited entry vessel
operators are allowed to change their transmission rates or VMS
declaration reports on a trip-by-trip basis when necessary.
B. Continuous Transit Definition
This rule revises the current definition of ``continuous transiting
or transit through'' to encompass a broader array of vessel activity
that is akin to loitering within a restricted area, whether that be by
means of a source of power or by drifting with the prevailing water
current or weather conditions. Under this revised definition, visual,
electronic, or other evidence of vessel activity should provide
information on vessel speed and course sufficient to indicate direct
and expeditious transiting of a restricted area.
C. Exemption From Observer Coverage While Testing Gear
This final rule establishes a definition for gear testing. The
definition states that gear testing is the deployment of lawful gear
without retaining fish, for purposes, including, but not limited to:
Deployment of nets using open codends; calibration of engines and
transmission under load (i.e., towing a net with an open codend);
deployment of wire and/or doors; testing new electronic equipment
associated with deploying fishing gear; and testing and calibration of
newly installed propulsion systems (i.e., engine, transmission, shaft,
propeller, etc.).
This final rule also exempts groundfish vessels participating in
the
[[Page 35596]]
shorebased IFQ, Mothership (MS), and Catcher-Processor (C/P) sectors
from the requirement to carry an observer while testing gear. Vessels
participating in these sectors are subject to a 100 percent observer
requirement while conducting fishing activity. However, a vessel would
not need an observer while testing gear because gear testing activity
would specifically prohibit retaining fish. In addition to being
prohibited from retaining fish while gear testing, vessels would be
prohibited from testing experimental gear, testing with a closed
codend, terminal gear, or with open pots, and from testing gear in
groundfish conservation areas or EFHCAs.
This final rule adjusts the declaration requirements for testing
gear. To be exempted from observer coverage while testing gear, vessels
need to communicate with both West Coast Groundfish Observer Program
(WCGOP) and NMFS OLE. Vessels are required to notify WCGOP by phone or
email, of the gear testing activity at least 48 hours prior to
departing on a trip to test gear or equipment. This action also adds a
VMS declaration code for ``Gear testing.'' When a vessel operator calls
the West Coast Groundfish Declaration Line to declare ``Gear testing,''
the VMS technician will review the information submitted and determine
if the vessel is eligible for this declaration. This measure will
result in observer coverage cost savings on trips to test fishing gear
or equipment.
D. Declaration Changes at Sea for Whiting Fishery
This final rule revises restrictions on midwater trawl catcher
vessels participating in the Pacific whiting fishery to allow them to
change declarations while at sea by calling the West Coast Groundfish
Declaration Line. After a vessel offloads onto a mothership, it can
immediately change its declaration from one of the ``Pacific whiting
mothership sector'' declarations to one of the ``Pacific whiting
shorebased IFQ'' declarations to make a tow and offload on shore, or
vice versa. In the past, midwater catcher trawl vessels participating
in the Pacific whiting fishery were restricted to landing either at a
mothership or shoreside processor. After Pacific whiting catcher
vessels have made their delivery obligation to a mothership, they were
not allowed to make a tow for a delivery to a shoreside processor
without returning to port first.
Allowing vessels to change their declarations at sea provides
vessels the opportunity to optimize available resources before
returning to port. As a result, vessels will spend less time at sea,
and in transit to and from fishing ports, which will ultimately reduce
the cost of fuel and crew.
E. Movement of IFQ Fishpot Gear Across Management Lines
The final rule allows shorebased IFQ fixed gear vessels retrieving
pots from one management area to retain their catch on board and move
to a second management area to deploy pots. These pots may be either
baited or not baited. The vessel may then return to port to deliver
their fish, then return to retrieve their pots from the second
management area. Although the adjustment increases operational
flexibility in deploying pots, vessels are still only permitted to
retain and land fish from a single management area. This will ensure
the integrity of data to support stock assessments and catch monitoring
for a single management area. Overall, fishing vessels will spend less
time at sea, which should reduce the cost of fishing.
F. Comments and Responses
NMFS received 13 comment letters during the comment period for the
proposed rule. Commenters included Oceana, an environmental
organization, the California Department of Fish and Wildlife, seven
commercial fishermen, three fishing associations, and a private
citizen. Only comments relevant to measures considered in the proposed
rule are summarized and addressed below. Comments related to other
fishery actions, general fishery management, or unrelated to fisheries
are not addressed here. All public comment letters can be viewed along
with the proposed rule and supporting documents for this action at
www.regulations.gov.
Comment 1: Seven commercial fishermen and three fishing
associations opposed increasing the VMS transmission rates from once-
per-hour to four times per-hour because increasing the transmission
rate will increase VMS operating costs.
Response: The Council recommended increasing the VMS transmission
rate frequency to improve NMFS' capacity to enforce fishing activity
around restricted areas. The analytic document and the preamble to the
proposed rule discuss that the once-per-hour transmission rate is
insufficient to prove that a vessel was not operating in continuous
transit through a restricted area. The increased transmission frequency
provides more course, location, and speed data to improve NMFS' ability
to identify whether vessels are continuously transiting restricted
areas or not.
In addition, NMFS recently revised the network of groundfish
essential fish habitat (EFH) conservation areas, areas closed to either
bottom trawling or bottom contact fishing gear, in Amendment 28 to the
Pacific Coast Groundfish FMP (84 FR 63966; November 19, 2019). In April
2018, while the Council was developing Amendment 28, its Enforcement
Committee evaluated the enforceability of proposed new and revised EFH
conservation areas. The evaluation concluded that the once-per-hour
transmission rate did not provide sufficient data to enforce 9 of the
46 areas recommended by the Council, noted that a four times-per-hour
transmission rate greatly improved monitoring incursions, and
recommended that NMFS expedite this action. NMFS estimates, based on
the Enforcement Committee's prior evaluation, that three EFH
conservation areas may continue to present enforcement challenges under
the four times-per-hour transmission rate because of their narrow
shape. Ultimately, the Council and NMFS determined that the
conservation benefits from increasing our ability to enforce restricted
areas justified the potential additional operating cost for fishery
participants.
The Council did recommend an option to reduce the operating costs
of increasing the VMS transmission rate. As an alternative, commercial
fishermen would be allowed to use a non type-approved VMS unit. These
units would not be NMFS type-approved, but meet NMFS reporting
standards (e.g., type and frequency of data collected, form of
transmittal, ruggedized, and an encrypted format) with a reduced
operating cost. NMFS OLE and the West Coast Region identified a number
of implementation challenges in creating a non type-approved VMS
program for the only the West Coast Region, including lack of funding
and staffing resources. Ultimately, the Council withdrew its
recommendation to implement a non type-approved VMS unit, but
maintained its recommendation to increase the ping rate.
NMFS remains committed to exploring cost-effective solutions to
meet regional and national monitoring needs. For example, on February
24, 2020, NMFS published a proposed rule to amend the national type-
approval requirements (85 FR 4257). In an effort to improve location
reporting and get more data at a lower cost to the fishermen, this
proposed rule will allow for fishermen to use cellular-based
transceiver types, as opposed to satellite-only models.
[[Page 35597]]
As data is much less expensive to send by cellular means than by
satellite, this action could provide a more cost-effective option to
require and receive beneficial fisheries data. The Council would need
to evaluate the use of cellular-based systems for monitoring groundfish
fisheries to fully understand coverage limitations and determine
whether this tool is appropriate for the fishery.
Comment 2: California Department of Fish and Wildlife (CDFW)
requested clarification about the vessels subject to the groundfish VMS
requirement. The CDFW commented that the description of the measures in
the proposed rule implies that additional vessels or fleets, including
salmon troll, prawn trap, Dungeness crab, halibut longline, California
halibut line gear, and sheephead trap, that were not previously subject
to the requirement will now need to obtain and operate a VMS unit on
trips. Two commercial fishermen questioned why the recreational fleet
is not required to have VMS.
Response: This rule only modifies the frequency of VMS transmission
rates, and does not modify the vessels or fleets that are subject to
the VMS requirement. Currently, any vessel with a limited entry ``A''
endorsed permit, any vessel that uses non-groundfish trawl gear to fish
in the EEZ, and any vessel that uses open access gear to take and
retain, or possess groundfish, or land groundfish taken in the EEZ, is
required to maintain an operational VMS unit. If vessels using open
access gear do not take and retain, or possess groundfish, or land
groundfish taken in the EEZ, then these vessels are not subject to the
VMS requirement. All vessels and fleets that are currently subject to
the VMS requirement are subject to the increased transmission rate. The
Council did not consider including a VMS requirement for the
recreational fishing fleet (including charter and private sectors) in
this action.
Comment 3: Two commercial fishermen commented that VMS position
transmission rates should be unpredictable so that vessels cannot
deliberately evade location monitoring. They also commented that NMFS
should work with service providers to develop store and forward
capability for VMS software to reduce transmission costs.
Response: Vessels are required to use NMFS type-approved VMS units
that have defined standards for basic features, described at 50 CFR
600.1500. These VMS units document a vessel's position a predetermined
number of times per hour. For example, a four-times-per-hour
requirement would result in positions documented every 15 minutes, and
a six-times-per-hour requirement would result in positions documented
every 10 minutes. For enforcement effectiveness, vessel operators and
NMFS enforcement are unaware of exactly when the VMS unit is
transmitting these position signals to the service providers. For
example, with a four-times-per-hour requirement, the unit may transmit
a position signal during the second minute of the first 15-minute
interval of the hour, and during the tenth minute of the second 15-
minute interval of the hour. Because operators are unaware of when the
VMS units are recording and transmitting position information, it is
unlikely that vessel operators will be able to alter their vessel
trajectory to conceal prohibited fishing activities.
The National VMS program does not currently permit satellite store
and forward for type-approved VMS units. NMFS OLE considered allowing
the use of limited store and forward position, but determined that
because the magnitude of monthly operating costs is based on the amount
of data being transmitted, rather than the frequency of transmission,
the potential for cost savings with store and forward for satellite VMS
units is insignificant to nonexistent.
Comment 4: Oceana and one unaffiliated private citizen supported
the changes to the VMS transmission frequency. They commented that the
increased transmission frequency is necessary to adequately monitor and
enforce conservation areas in federally managed groundfish fisheries
including groundfish conservation areas, rockfish conservation areas
and EFH conservation areas.
Response: NMFS agrees. The final rule implements the Council's
recommendation to increase the VMS transmission frequency to four-per-
hour, which will provide additional information on vessel location to
more accurately monitor groundfish fisheries and conservation areas.
Comment 5: Oceana commented that NOAA should expand its use of
enhanced electronic monitoring systems, including gear sensors that can
indicate when fishing activity is occurring and GPS units that can make
detailed and accurate records of vessel positions.
Response: NMFS encourages all fishery stakeholders, including the
Fishery Management Councils, to consider implementing electronic
technology (ET) options where appropriate to meet science, management,
and data needs. NMFS released a national Policy on Electronic
Technologies and Fishery-dependent Data Collection in 2013 to provide
guidance on the implementation of ET solutions and in fisheries. An
updated policy was released in May 2019. In 2015, NMFS implemented
regional ET implementation plans informed by a series of national-level
planning documents. These plans were created to help move beyond pilot
projects by identifying, evaluating, and prioritizing implementation of
promising electronic technologies in specific fisheries around the
country. We are in the process of updating these plans, highlighting
the lessons-learned from the last 4 years, and looking forward to 2024.
The Pacific Council is scheduled to review a draft of the new ET plan
at their June 2020 meeting. On the west coast, NMFS currently has an
electronic monitoring program in place for two sectors of the
groundfish fishery. Catcher vessels in the Pacific whiting fishery
(shorebased Individual Fishing Quota (IFQ) and at-sea Mothership
Catcher Vessels) are exempt from increasing their VMS transmissions to
four times-per-hour while using EM. NMFS is also working to increase EM
opportunities for the limited entry groundfish trawl fishery (including
midwater trawl gear and bottom trawl gear). These EM systems include
gear sensors and GPS units that can indicate when and where fishing
activity is occurring.
Comment 6: One commercial fisherman commented that, in a personal
communication with one of the VMS service providers, the service
provider stated that the most frequent transmission rate for VMS
systems nationwide is twice-per-hour. The commenter requested that NMFS
consider implementing a VMS position transmission frequency of two
times-per-hour to be consistent with other fisheries in the U.S., and
to help reduce VMS costs.
Response: NMFS agrees that several fisheries in other regions
require fewer than four position transmissions per hour but notes that
the required position transmission rate for each fishery depends on the
location monitoring needs of the fishery. For this reason, there is no
standard, nationwide position transmission rate. As described in the
response to Comment 1, the Council and NMFS determined that a more
frequent position transmission rate is necessary to monitor area
incursions for the Pacific Coast groundfish fishery. In its
deliberations for this action, the Council did consider implementing
position transmission frequencies of two- and three-times per hour.
However, these alternatives were rejected because
[[Page 35598]]
these position transmission frequencies did not provide frequent enough
information for enforcement to determine a vessel's course or fishing
activity in small restricted areas.
Comment 7: The Ventura County Commercial Fishermen's Association,
the San Diego Fishermen's Working Group, and a private citizen
commented that the current once per hour ping rate has proved to be an
effective deterrent to illegal fishing in EFH Conservation Areas,
Rockfish Conservation Areas, Marine Protected Areas and the multitude
of other Reserves and Conservation Areas up and down the Pacific West
Coast.
Response: VMS is a practical tool for monitoring vessel activity in
relation to restricted areas. As described in the response to Comment
1, the new and revised closed areas implemented in Amendment 28 to the
Pacific Coast Groundfish Fishery Management Plan require an increased
VMS transmission rate to effectively monitor fishing activity. A VMS
transmission rate of four-times-an-hour will improve monitoring to
deter possible illegal fishing.
Comment 8: One commercial fisherman commented that NMFS should get
location data from logbooks.
Response: Although logbooks require vessels to report coordinates
for fishing activity, NMFS does not have the opportunity to review
these coordinates until after the vessels have returned to port. VMS
provides accurate information on the location of the vessel and can be
used to identify where fishing activity takes place with a reasonable
degree of accuracy while a trip is underway.
The VMS requirement also extends to a broader range of participants
in the groundfish fishery than the logbook requirement. Currently, the
groundfish trawl fleet is the only groundfish fleet required to submit
a Federal logbook. Although trawl vessels are required to submit
coordinates for each haul, the information provided in the logbooks
only describes tow information, and does not include information about
vessel trajectory. The VMS requirement for the groundfish fishery
applies to vessels with a limited entry ``A'' endorsed permit, any
vessel that uses non-groundfish trawl gear to fish in the EEZ, and any
vessel that uses open access gear to take and retain, or possess
groundfish, or land groundfish taken in the EEZ. For these reasons, VMS
is currently a more comprehensive tool to monitor vessel movement than
logbooks.
Comment 9: The South Bay Cable/Fisheries Liaison Committee and
Ventura County Commercial Fishermen's Association believes there are
going to be major structural changes to southern California Rockfish
Conservation Areas (RCA) and possibly even the elimination of the
Cowcod Conservation Areas (CCA) in this next groundfish specifications
cycle. The groups requested that the Council reconsider its support for
and its recommendation to increase the ping rate for groundfish
vessels, and others.
Response: The Council is not planning to consider major adjustments
to the non-trawl RCA or CCA in the 2021-2022 specifications action. The
Council has, however, indicated it intends to consider changes to these
management areas in a future action. The Council can evaluate
monitoring needs for the non-trawl portion of the groundfish fleet in
conjunction with that action.
Comment 10: Three commercial fishermen commented that due to
restrictions on turning off the VMS unit when not fishing, the increase
to annual VMS operating costs will be too expensive. The commenters
asked NMFS to consider allowing a reduction in transmissions when a
vessel is in port.
Response: NMFS acknowledges that there are situations in which
fishermen may need to be exempted from operating their VMS units. The
existing regulations already include an in port exemption that allows
vessels to reduce their signals to at least once every four hours while
a vessel remains in port for an extended period of time. In addition,
vessels operating with EM and vessels fishing in the limited entry
midwater trawl fishery are allowed to maintain at one signal per hour.
Additional cost saving exemptions, such as the exemption recommended in
the comment, would need to be considered through the Council process.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this final rule is
consistent with the Pacific Coast Groundfish FMP, other provisions of
the Magnuson-Stevens Act, and other applicable law.
The Office of Management and Budget has determined that this final
rule is not significant for purposes of Executive Order (E.O.) 12866.
This final rule is considered an Executive Order 13771 deregulatory
action. This final rule removes restrictions on catcher vessels to
allow them to change their declarations while at sea. After a catcher
vessel offloads onto a mothership, it can immediately change its
declaration from the Pacific whiting mothership sector to Pacific
whiting shorebased IFQ sector to make a tow and offload on shore, or
vice versa. Removing this restriction creates additional flexibility
for vessel operation and may increase revenues. This final rule
eliminates the requirement for vessels participating in the shorebased
IFQ Program and Mothership or Catcher-Processor cooperatives to carry
an observer while testing fishing gear. Removing this restriction
reduces operating costs while testing gear. Finally, the revised
regulations allow pot gear (fixed gear) vessels retrieving gear from
one management area to retain their catch on board and move to a second
management area to deploy pots. The vessel may then return to port to
deliver their fish, then return to retrieve their pots from the second
management area. This change increases operational flexibility, while
ensuring the integrity of data to support stock assessments and catch
monitoring for a single management area.
Pursuant to Executive Order 13175, this final rule was developed
after meaningful consultation and collaboration with tribal officials
from the area covered by the Pacific Coast Groundfish FMP. Under the
Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members
of the Pacific Council must be a representative of an Indian tribe with
federally recognized fishing rights from the area of the Council's
jurisdiction.
This final rule does not contain policies with Federalism or
``takings'' implications as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
This action is categorically excluded from the requirement to
prepare an environmental assessment or environmental impact statement
in accordance with section 4 of NOAA's Policies and Procedures for
Compliance with the National Environmental Policy Act (NEPA) and
Related Authorities (Companion Manual for NAO 216-6A). Per section 4B
of the Manual, a categorical exclusion (CE) evaluation document has
been prepared that evaluates the applicability of the CE.
NMFS prepared a final regulatory flexibility analysis (FRFA) under
section 604 of the Regulatory Flexibility Act (RFA), which incorporates
the initial regulatory flexibility analysis (IRFA) prepared during the
proposed rule stage. A copy of the FRFA and CE memo are available from
NMFS (see ADDRESSES), and, as per the requirements of 5 U.S.C. 604(a),
the text of the FRFA follows.
[[Page 35599]]
Final Regulatory Flexibility Act Analysis
For any rule subject to notice and comment rulemaking, the RFA
requires Federal agencies to prepare, and make available for public
comment, both an initial and final regulatory flexibility analysis,
unless the agency can certify that the proposed and/or final rule would
not have a significant economic impact on a substantial number of small
entities. These analyses describe impact on small businesses, non-
profit enterprises, local governments, and other small entities as
defined by the RFA (5 U.S.C. 603). This analysis is to inform the
agency and the public of the expected economic effects of the
alternatives, and aid the agency in considering any significant
regulatory alternatives that would accomplish the applicable objectives
and minimized the economic impact on affected small entities. The RFA
does not require that the alternative with the least cost or with the
least adverse effect on small entities be chosen as the preferred
alternative.
The need for and objective of this final rule is described above in
the Background section of this preamble and not repeated here.
A Statement of the Significant Issues Raised by the Public Comments in
Response to the IRFA
No public comments were received in response to the IRFA. We
received a comment on the economic impact and a response is provided
earlier in the preamble under comment 1.
The Response of the Agency to Any Comments Filed by the Chief Counsel
for Advocacy in Response to the Final Rule
No agency response was required, as no comments were received.
A Description and, Where Feasible, Estimate of the Number of Small
Entities to Which the Final Rule Will Apply
The RFA (5 U.S.C. 601 et seq.) requires government agencies to
assess the effects that regulatory alternatives would have on small
entities, defined as any business/organization independently owned and
operated, not dominant in its field of operation (including its
affiliates).
For RFA purposes only, NMFS 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 (NAICS code 11411) 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.
For the purposes of our Regulatory Flexibility Act (RFA) analysis,
the final action is considered to regulate ownership entities that are
potentially affected by the action. The U.S. Small Business Association
(SBA) established criteria for business in the fishery sector to
qualify as small entities. Limited entry groundfish vessels directly
regulated by this action are required to renew a permit annually, and
the application asks for entity size including affiliation. Of those
who responded as being large entities, 15 permits owned by 9 large
entities were attached to vessels that participated in bottom trawl or
fixed gear groundfish fisheries in 2018 and are the most likely to be
impacted by the rule.
Of the 856 vessels impacted by this rule, none had annual ex-vessel
revenue on the West Coast (participation in other fisheries is not
known) greater than the NMFS $11 million size standard. The top three
revenue vessels, all in the IFQ fishery, had an average revenue of $1.9
million in 2018 in all West Coast fisheries. In contrast, the bottom 10
earning vessels had revenues in all West Coast fisheries of less than
$1,000. While the analysis relies on 2018 data, there have not been
significant changes in the number of entities or relative small
business size status of the fleet from 2018 to 2019.
Reporting and Record-Keeping Requirements
This action changes two information collection requirements.
NMFS Type-Approved VMS Transmission Rate Increase
This action adjusts the position transmissions rate for certain
vessels using NMFS type-approved vessel monitoring system units,
including limited entry groundfish vessels, vessels using non-
groundfish trawl gear in the EEZ (ridgeback prawn, California halibut,
and sea cucumber trawl), and any vessels that use open access gear
targeting groundfish take and retain, possess groundfish or land
groundfish taken in the EEZ in the EEZ (salmon troll, prawn trap,
Dungeness crab, halibut longline, California halibut line gear, and
sheephead trap). Vessel owners are required to increase their position
transmission rate from once- per- hour to four times- per hour. Vessels
that are operating with electronic monitoring or in port for an
extended period of time will be exempt from this increase and allowed
to continue with a rate of four-times-per-hour.
Addition of a Declaration for Testing Fishing Gear
The final action adds a declaration for gear testing so vessels
will be exempt from observer coverage while testing gear and restricted
from harvesting fish, and allow Groundfish midwater trawl vessels
participating in the Pacific whiting fishery (shorebased IFQ Sector and
the MS Sector), to make a new declaration from sea and allowed to make
a tow for a delivery to a shoreside processor without returning to port
first. The numbers of declaration reports the vessel operator is
required to submit to NMFS would not change under this request.
Therefore, no small entity would be subject to additional reporting
requirements.
Federal Rules Which May Duplicate, Overlap, or Conflict With This
Proposed Rule
There are no relevant Federal rules that may duplicate, overlap, or
conflict with this action.
Description of Significant Alternatives to This Final Rule That
Minimize Economic Impact on Small Entities
NMFS considered sub alternatives to the proposed rule that may have
minimized significant economic impact, but not meet stated objectives
of applicable statutes. The Council briefly considered increasing the
position transmission signal to every 30 minutes or every 20 minutes,
but rejected those alternatives from further analysis because those
position transmission signals may not be frequent enough to provide
information to enforce small restricted areas, or provide enough
information to calculate a vessel's course for enforcement of
continuous transit requirements.
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 rules, and shall designate such
publications as ``small entity compliance guides.'' The agency shall
explain the actions a small entity is required to take to comply with a
rule or group of rules. As part of this rulemaking process, a small
entity compliance guide (the guide) was
[[Page 35600]]
prepared. Copies of this final rule are available from the West Coast
Regional Office (see ADDRESSES), and the guide will be included in a
notice sent to all members of the groundfish email group. To sign-up
for the groundfish email group, click on the ``subscribe the the
Groundfish Email Group'' link on the following website: https://www.fisheries.noaa.gov/species/west-coast-groundfish#commercial. The
guide and this final rule will also be available on the West Coast
Region's website (see ADDRESSES) and upon request.
Paperwork Reduction Act (PRA) Recordkeeping and Reporting Requirements
This action contains changes to information collection requirements
under OMB Control Number 0648-0573, West Coast Region Vessel Monitoring
Requirement in the Pacific Coast Groundfish Fishery, described in this
final rule, which have been submitted to the Office of Management and
Budget (OMB).
The first change is to adjust the VMS signal transmissions for
certain vessels using NMFS type-approved vessel monitoring system
units, including limited entry groundfish vessels, vessels using non-
groundfish trawl gear in the EEZ (ridgeback prawn, California halibut,
and sea cucumber trawl), and any vessels that use open access gear to
take and retain, or possess groundfish in the EEZ or land groundfish
taken in the EEZ (salmon troll, prawn trap, Dungeness crab, halibut
longline, California halibut line gear, and sheephead trap). A NMFS
type-approved VMS mobile transceiver unit continuously provides the
vessel's position throughout the fishing season. Vessel owners would be
required to increase their transmission rates from once-per-hour to
four-times-per-hour. Vessels that are operating with electronic
monitoring or in port for an extended period of time, will be exempt
from this increase and allowed to continue with a rate of one-time-per-
hour. The proposed change will not affect the number of entities
required to comply with this requirement.
The next change is to adjust notification requirements for
groundfish trawl vessels testing gear. Vessels participating in the
shorebased IFQ, MS, or C/P Sectors will be able to declare ``gear/
equipment testing'' and receive an exemption from observer coverage.
This action would not affect the number of entities required to comply
with the declaration requirement. Therefore, the proposed change would
not be expected to increase the time or cost burden associated with
this requirement. Lastly, this action allows Pacific whiting catcher
vessels to change their declarations at-sea. After vessels have met
their delivery obligations, they can immediately change their
declaration from ``Pacific whiting motherships sector'' to ``Pacific
whiting shorebased IFQ'' to make a tow and offload on shore. This
action would not be expected to change the time or cost burden or
number of entities associated with this requirement.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian Fisheries.
Dated: May 18, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NOAA amends 50 CFR part
660 is 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., 16 U.S.C. 773 et seq., and 16
U.S.C. 7001 et seq.
0
2. In Sec. 660.11, revise the definition of ``Continuous transiting or
transit through'' and add the definition of ``Gear testing'' in
alphabetical order to read as follows:
Sec. 660.11 General definitions.
* * * * *
Continuous transiting or transit through means that a vessel
crosses a groundfish conservation area or EFHCA on a heading as nearly
as practicable to a direct route, consistent with navigational safety,
while maintaining expeditious headway throughout the transit without
loitering or delay.
* * * * *
Gear testing means the deployment of lawful gear without retaining
fish, for the following purposes, including, but not limited to:
Deployment of nets using open codends; calibration of engines and
transmission under load (i.e., towing a net with an open codend);
deployment of wire and/or doors; testing new electronic equipment
associated with deploying fishing gear; and testing and calibration of
newly installed propulsion systems (i.e., engine, transmission, shaft,
propeller, etc.).
* * * * *
0
3. In Sec. 660.13, revise paragraph (d)(1)(ii) and add paragraph
(d)(4)(iv)(A)(30) to read as follows:
Sec. 660.13 Recordkeeping and reporting.
* * * * *
(d) * * *
(1) * * *
(ii) Limited entry midwater trawl vessels targeting Pacific whiting
may change their declarations while at sea between the Pacific whiting
shorebased IFQ sector and the mothership sector as specified at
paragraph (d)(4)(iv)(A) of this section. The declaration must be made
to NMFS before a different sector is fished.
* * * * *
(4) * * *
(iv) * * *
(A) * * *
(30) Gear testing.
* * * * *
0
4. In Sec. 660.14, revise paragraphs (d)(1), (d)(2) introductory text,
and (d)(3), and (5) to read as follows:
Sec. 660.14 Vessel Monitoring System (VMS) requirements.
* * * * *
(d) * * *
(1) Obtain a NMFS OLE type-approved mobile transceiver unit and
have it installed on board your vessel in accordance with the
instructions provided by NMFS OLE. You may obtain a copy of the VMS
installation and operation instructions from the NMFS OLE West Coast
Region, VMS Program Manager upon request at 7600 Sand Point Way NE,
Seattle, WA 98115-6349, phone: 888-585-5518 or [email protected].
* * * * *
(2) Activate the mobile transceiver unit, submit an activation
report at least 72 hours prior to leaving port on a trip in which VMS
is required, and receive confirmation from NMFS OLE that the VMS
transmissions are being received before participating in a fishery
requiring the VMS. Instructions for submitting an activation report may
be obtained from the NMFS OLE West Coast Region, VMS Program Manager
upon request at 7600 Sand Point Way NE, Seattle, WA 98115-6349, phone:
888-585-5518 or [email protected]. An activation report must again be
submitted to NMFS OLE following reinstallation of a mobile transceiver
unit or change in service provider before the vessel may be used to
fish in a fishery requiring the VMS.
* * * * *
(3) Operate and maintain the mobile transceiver unit in good
working order continuously, 24 hours a day throughout the fishing year,
unless such vessel is exempted under paragraph (d)(4) of this section.
(i) Position frequency. The mobile transceiver unit must transmit a
signal
[[Page 35601]]
accurately indicating the vessel's position at least once every 15
minutes, 24 hours a day, throughout the year unless an exemption in
paragraph (d)(3)(ii) of this section applies or a valid exemption
report, as described in paragraph (d)(4) of this section, has been
received by NMFS OLE. The signal indicating the vessel's position can
consist of either: A single position report transmitted every 15
minutes; or a series of position reports, at no more than a 15 minute
interval, combined and transmitted at least once every hour.
(ii) Exemptions to position frequency requirement.--(A) Electronic
monitoring exemption. If a vessel has an electronic monitoring system
installed and in use for the duration of a given fishing year, the
mobile transceiver unit must transmit a signal at least once every
hour.
(B) Midwater trawl exemption. If a limited entry trawl vessel is
fishing with midwater trawl gear under declarations in paragraph
(d)(4)(iv)(A) of this section, the mobile transceiver unit must
transmit a signal at least once every hour.
(C) In port exemption. If a vessel remains in port for an extended
period of time, the mobile transceiver unit must transmit a signal at
least once every four hours. The mobile transceiver unit must remain in
continuous operation at all times unless the vessel is exempt under
paragraph (d)(4) of this section.
* * * * *
(5) When aware that transmission of automatic position reports has
been interrupted, or when notified by NMFS OLE that automatic position
reports are not being received, contact NMFS West Coast Region, VMS
Program Manager upon request at 7600 Sand Point Way NE, Seattle, WA
98115-6349, phone: 888-585-5518 or [email protected] and follow the
instructions provided to you. Such instructions may include, but are
not limited to, manually communicating to a location designated by NMFS
OLE the vessel's position or returning to port until the VMS is
operable.
* * * * *
0
5. In Sec. 660.112, revise paragraph (a)(4) and add paragraphs (a)(7)
and (b)(1)(xvii) to read as follows:
Sec. 660.112 Trawl fishery--prohibitions.
* * * * *
(a) * * *
(4) Observers. (i) Fish in the Shorebased IFQ Program, the MS Coop
Program, or the C/P Coop Program without observer coverage unless
exempt from the observer coverage requirement for gear testing activity
and have satisfied the declaration and notification requirements, as
described in Sec. 660.140(h), Sec. 660.150(j), or Sec. 660.160(g).
(ii) Fish in the Shorebased IFQ Program, the MS Coop Program, or
the C/P Coop Program if the vessel is inadequate or unsafe for observer
deployment as described at Sec. 660.12(e).
(iii) Fail to maintain observer coverage in port as specified at
Sec. 660.140(h)(1)(i).
* * * * *
(7) Gear testing. (i) Retain fish while gear testing.
(ii) Fish with a closed codend, use terminal gear (i.e., hooks), or
fish with open pot gear while gear testing.
(iii) Test gear in groundfish conservation areas described in Sec.
660.70, or EFHCAs described in Sec. Sec. 660.76 through 660.79.
(iv) Test experimental gear, or any other gear not currently
approved for groundfish fishing.
* * * * *
(b) * * *
(1) * * *
(xvii) When declared into the limited entry groundfish non-trawl
Shorebased IFQ fishery, retain fish caught with fixed gear in more than
one IFQ management area, specified at Sec. 660.140(c)(1), on the same
trip.
* * * * *
0
6. In Sec. 660.140, add paragraphs (c)(2) and (h)(1)(i)(A)(5) to read
as follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(c) * * *
(2) Moving pot or trap gear between multiple IFQ management areas.
A vessel using fixed gear declared into the limited entry groundfish
non-trawl Shorebased IFQ fishery may deploy pot or trap gear in
multiple IFQ management areas on a trip provided the vessel does not
retrieve gear from more than one IFQ management area during a trip.
* * * * *
(h) * * *
(1) * * *
(i) * * *
(A) * * *
(5) Is exempt from the requirement to maintain observer coverage as
specified in this paragraph (h) while gear testing as defined in Sec.
660.11. The vessel operator must submit a valid declaration for gear/
equipment testing, as required by Sec. 660.13(d)(4)(iv)(A), and must
notify the Observer Program of the gear testing activity at least 48
hours prior to departing on a trip to test gear/equipment.
* * * * *
0
7. In Sec. 660.150, add paragraph (j)(1)(i)(C) to read as follows:
Sec. 660.150 Mothership (MS) Coop Program.
* * * * *
(j) * * *
(1) * * *
(i) * * *
(C) Gear testing exemption. Vessels are exempt from the requirement
to maintain observer coverage as specified in this paragraph (j) while
gear testing as defined at Sec. 660.11. The vessel operator must
submit a valid declaration for gear/equipment testing, as required by
Sec. 660.13(d)(4)(iv)(A), and must notify the Observer Program of the
gear testing activity at least 48 hours prior to departing on a trip to
test gear/equipment.
* * * * *
0
8. In Sec. 660.160, add paragraph (g)(1)(iv) to read as follows:
Sec. 660.160 Catcher/processor (C/P) Coop Program.
* * * * *
(g) * * *
(1) * * *
(iv) Gear testing exemption. Vessels exempt from the requirement to
maintain observer coverage as specified in this paragraph (g) while
gear testing as defined at Sec. 660.11. The vessel operator must
submit a valid declaration for gear/equipment testing, as required by
Sec. 660.13(d)(4)(iv)(A), and must notify the Observer Program of the
gear testing activity at least 48 hours prior to departing on a trip to
test gear/equipment.
* * * * *
[FR Doc. 2020-11011 Filed 6-10-20; 8:45 am]
BILLING CODE 3510-22-P
