Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Non-trawl Logbook

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule creates a Federal requirement for certain vessels in the Pacific Coast Groundfish fishery target fishing for groundfish with non-trawl gear in Federal waters seaward of California, Oregon, and Washington, to complete and submit a non-trawl logbook to NMFS via an electronic application. Specifically, this non-trawl logbook requirement applies to vessels participating in the directed open access and limited entry fixed gear sectors, as well as those vessels that fish with non-trawl gear in the Shorebased Individual Fishing Quota Program. The intent of this requirement is to collect valuable fishery-dependent information in non- trawl sectors with partial observer coverage, which will help better inform management of these fisheries.

DATES:

Effective January 1, 2023.

ADDRESSES:

Electronic Access

This rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov/. This rule's associated Compliance Guide is available on the NMFS West Coast Region website at https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish.

FOR FURTHER INFORMATION CONTACT:

Lynn Massey, phone: 971-238-2514, or email: lynn.massey@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

This final rule is being promulgated in accordance with recommendations developed by the Pacific Fishery Management Council (Council), first recommended in 2008 and reaffirmed at their March 2022 meeting. For a full history of the Council's development of this action, please see the “Background” section of the proposed rule (87 FR 39792, July 5, 2022).

Non-Trawl Federal Logbook Requirement

This final rule creates a Federal electronic logbook requirement for vessels participating in the directed open access (OA) and limited entry fixed gear (LEFG) groundfish fishery sectors, as well as those vessels that use non-trawl gear under the Shorebased Individual Fishing Quota (IFQ) Program (herein referred to as the “IFQ gear switching sector”). The directed OA sector includes those vessels that target fish for groundfish in the exclusive economic zone (EEZ). The directed OA sector does not include those vessels that retain groundfish incidentally while targeting non-groundfish species ( e.g., the salmon troll fishery). The LEFG sector includes the primary sablefish fishery and the limited entry trip limit fisheries. The IFQ gear switching sector includes those vessels that participate in the Shorebased IFQ Program with trawl gear, but also “gear switch” and occasionally fish with non-trawl gear pursuant to their IFQ limits. From 2016-2019, an average of 536, 188, and 18 vessels participated in the directed OA, LEFG, and IFQ gear switching fishery sectors, respectively. Therefore, NMFS anticipates this action will affect a total of approximately 742 vessels.

This final rule will amend the regulations at §§ 660.11, 660.12, and 660.13 to include the new non-trawl logbook requirements. The amended regulations will include a new definition for the directed OA sector, as well as new gear types that vessels can declare on their declaration reports ( e.g. declaration codes) and revisions to existing declaration codes with the primary purpose of ensuring those codes better align with the gear profiles as they will be described in the electronic non-trawl logbook application. Additionally, the revised declaration codes would allow NOAA's Office of Law Enforcement (OLE) to identify those vessels that are subject to the new non-trawl logbook requirement based on what gear type is declared.

Content and Use of Non-Trawl Logbook and Data

The non-trawl logbook will collect set-level information on catch, discards, fishing location, fishing depth, gear configuration, and sale. Most data will be required to be entered into the electronic logbook application while the vessel is fishing, with only the buyer information recorded upon landing. An electronic logbook entry will be required for each individual fishing trip. The electronic application will accommodate fishing trips for instances when gear is set and retrieved on different trips. Submission of electronic logbook data in the application will be required within 24 hours of offloading/landing (same timing requirement as electronic fish tickets).

NMFS, the Council, the Groundfish Management Team (GMT), the Northwest Fisheries Science Center, and the Pacific States Marine Fisheries Commission (PSMFC) will use the data obtained from the logbook application for analyses of catch locations and bycatch hotspots, spot verification of fish tickets, analyses on gear usage by area, stock assessments, and a variety of other applications. Additionally, Federal groundfish regulations (see 50 CFR 660.216(e)(7) and 50 CFR 660.316(e)(7)) require vessels to make the logbook data available to fishery observers under the West Coast Groundfish Observer Program (WCGOP). The observers collect biological samples and pair these samples with logbook data describing vessel position, target, depth, and retained catch. These data are not always accessible from other sources, such as equipment on the ship. Finally, the logbook data may also be used by NOAA's OLE and the U.S. Coast Guard in investigations.

Non-Trawl Logbook Electronic Application and Download Instructions

NMFS has contracted with the PSMFC to develop an electronic logbook application. The PSMFC will house and manage the logbook data. The application will ultimately be available for download free of charge on smart phones, tablets, and laptop computers; however, initial rollout may be limited to a smart phone application, subject to timing constraints. Once the electronic application is finalized and available (expected no later than December 2022), NMFS will send out an email notice to the groundfish email list that includes download and account set-up instructions. To register for the groundfish email list, provide your email address at: https://public.govdelivery.com/accounts/USNOAAFISHERIES/subscriber/new. After clicking submit, expand the “Regional Updates” drop-down list and navigate to “West Coast Updates”. Check the box next to “Groundfish” and then select “Submit” to subscribe.

Temporary Use of Paper Logbook Forms

For a minimum of one year from the effective date of this final rule, NMFS will accept paper logbook forms to provide a grace period for adapting to the electronic application. NMFS will prescribe the paper logbook forms that may be submitted to meet this requirement. Depending on the development status of the additional formats for the electronic application, NMFS may extend the optional paper logbook provision beyond one year from the effective date of the final rule. NMFS will issue a public notice at least 90 calendar days prior to ending the optional provision to submit a paper logbook. Each non-trawl logbook paper form will represent a single fishing trip, and the data will be matched to a landing receipt ( i.e., fish ticket) submitted to PSMFC by seafood first receivers ( i.e., buyers). This matching step acts as a data corroboration process for landings, and allows the PSMFC to identify and correct any errors in the data. Paper logbook submission will be required within 30 days of the date of landing. In December 2022 or earlier, the PSMFC will mail booklets of logbook forms to the state fish and wildlife agencies, which will then assist in distributing logbook forms to their respective fishermen. Shortly prior to mailing logbook forms, NMFS will email a public notice to the groundfish email distribution list to provide advance notification.

Under this final rule, vessels will be required to send the alternative paper logbook forms to the PSFMC, on behalf of NMFS, at: Pacific States Marine Fisheries Commission, 205 SE Spokane St. Suite #100, Portland, OR 97202.

Industry Outreach and Considerations

NMFS and the PSMFC are consulting with industry representatives and end-users of the data ( i.e., the GMT and state representatives) on the electronic logbook layout and design. The PSFMC will organize and host beta-testing of the electronic logbook application once a draft version is ready for use (currently expected in the fall of 2022). In order to participate in the official beta-testing of the electronic logbook application, please email the PSFMC at FedElog@psmfc.org. NMFS will send a public announcement via the groundfish email list when the PSMFC schedules specific dates for any beta-testing workshops.

This final rule is structured to minimize impacts on those vessels that are already subject to comparable logbook requirements. For example, those vessels that gear switch in the Shorebased IFQ Program and use electronic monitoring (EM) in lieu of an observer currently record discards on a paper logbook form (see § 660.604(s)). Those vessels would be required to transition to submit the electronic non-trawl logbook application instead of the paper logbook forms, with the exception of the first year(s), when they would be permitted to continue submitting their regular paper form as they adapt to the electronic application.

Response to Public Comments

NMFS held a public comment period on the proposed rule (87 FR 39792; July 5, 2022) from July 5, 2022, to August 4, 2022. NMFS received a total of seven public comment submissions. Six of the public comments were from commercial fishermen that participate in one of the affected sectors. NMFS also received a comment from the California Department of Fish and Wildlife (CDFW). NMFS responds to each of these public comments below. In some cases, similar concepts across multiple public comment submissions are summarized and grouped in one response, and in other cases, separate concepts in one public comment submission are described and responded to separately.

Comment 1: Three fishery participants commented that the non-trawl logbook requirement is duplicative of data already collected through other means, including vessel monitoring system (VMS) units, landing receipts, and observer data.

Response: The logbook will collect location-specific catch and discard data, as well as effort data, that is not available fleet-wide from any other source in the Federal non-trawl fisheries. The OA sector, like the other non-trawl sectors, is subject to partial observer coverage. NMFS develops estimations of fleet-wide discards using the data from vessels that were observed; however, that information is not available on a location-specific basis. Landing receipts only provide retained catch information; they do not contain information on discards, specific catch location, gear configuration, or fishing depth. VMS data provide location data, but are not connected to catch and discard data by location. More precise location-specific catch and discard information collected through the logbook could help the Council and NMFS better target management responses to, for example, a bycatch concern or catch at risk of exceeding a sector allocation or annual catch limit. These management actions could potentially close smaller areas, and be less disruptive to fisheries, because management concerns could be narrowed to a specific location.

Comment 2: Two fishery participants expressed concern over the operational burden that would be imposed through the requirement to record the time and location of every gear set, especially for smaller vessels that make a large amount of drops or sets per fishing trip and across many different fishing locations.

Response: For fishing trips where traditional longline and/or pot gear are not being used, logbook users should record a new fishing location and set number if the vessel actively motors to a different location greater than 1 nautical mile away or to a distinguishably different geographic area ( e.g., a new reef). For example, if 30 drops from a rod and reel gear type are made in one fishing location, then the vessel should record the time that the first hook entered the water and the time that the last hook was retrieved. These methods align with what a WCGOP observer would record if onboard the vessel. These guidelines are included in the Compliance Guide associated with this rule, which is available at https://www.fisheries./noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish.

Comment 3: A private fisher out of Santa Barbara, California, asked for clarification about whether catch in both state and Federal waters would be required in each logbook submission if both waters were fished in a single trip.

Response: Logbook data is only required for fishing activity that takes place in the EEZ. Any fishing activity that takes place in state territorial waters, even if conducted on the same trip as fishing activity in Federal waters, will not be required for inclusion in the Federal logbook submission. In some cases, West Coast states have their own requirements for fishing activity in state territorial waters.

Comment 4: A private fisher out of Half Moon Bay, California, commented that he does not oppose the collection of fishing information in the non-trawl logbook, but recommended that fishing location data be retrieved via each boat's VMS as opposed to the vessel crew recording the fishing location in the non-trawl logbook.

Response: NMFS and the PSMFC evaluated the possibility of obtaining fishing location data from VMS units as an alternative to fisher-reported latitude and longitude coordinates. Although VMS location data is precise enough for enforcement applications ( e.g., ensuring vessels are not fishing in closed areas), it is not precise enough for other applications that the logbook data will be used for ( e.g., stock assessments and area-specific management responses). Additionally, connecting VMS data to logbook submissions would be technically challenging and likely not achievable by the time of this rule's implementation. For these reasons, NMFS determined that VMS location data is not a feasible option for obtaining precise fishing location data at this time. However, if recording fishing location data proves too operationally challenging for certain types of affected vessels in the future, NMFS will continue investigating a way to use VMS data in lieu of fisher-reported latitude and longitude coordinates.

Comment 5: A private fisher out of Bolinas, California, commented that he does not have a smart phone and would be inconvenienced if required to get one for the new non-trawl logbook requirement.

Response: NMFS intends for the electronic logbook application to be available for download on tablets and laptops, in addition to smart phones. Although NMFS expects that at initial implementation in January 2023, the electronic application will only be available for download on a smart phone, NMFS is also providing a minimum one year grace period to use paper logbook forms in lieu of the electronic application. NMFS expects that by the end of this grace period, the electronic application will be available on the other devices and not just limited for download on a smart phone.

Comment 6: A private fisher from McKinleyville, California, commented that on smaller vessels, electronic devices and alternative paper logs will get damaged in the salt spray, which would cause the constant need to replace electronic devices.

Response: Under this rule, instantaneous data entry is not required. Fishermen will have 2 hours from the time of setting/retrieving gear to complete that portion of their logbook entries (see regulations below). Electronic devices and/or logbook forms can be stored in the wheelhouse while fishermen are handling gear.

Comment 7: A member of the public commented that it would be unsafe for fishermen to fill out the logbook information while fishing.

Response: Under this rule, instantaneous data entry is not required. Fishermen will have 2 hours from the time of setting/retrieving gear to complete that portion of their logbook entries (see regulations below). The fisher will not need to be handling an electronic device at the same time as setting or retrieving gear.

Comment 8: A private fisher out of Spring Valley, California, requested a change to observer data recording protocol. Specifically, the commenter asked that fish released with a descending device not count as discard mortality.

Response: NMFS is not proposing any modifications to observer protocols through this rulemaking, and therefore this comment is beyond the scope of the proposed rule.

Comment 9: CDFW commented that it generally supports the proposed rule but opposes the fact that the non-trawl logbook requirement will only apply in the EEZ. CDFW stated that the non-trawl logbook should also apply in California state waters.

Response: At the September 2021 and March 2022 Council meetings, NMFS provided reports to the Council requesting clarification on the intended scope of the action. In those reports, NMFS stated that the logbook requirement would only apply in the EEZ ( i.e., 3-200 nautical miles), consistent with 50 CFR 660.10(a). Accordingly, NMFS did not include analysis for vessels that fish in state waters as part of this action. NMFS recommends that if the State is interested in collecting that data, California consider a complementary state logbook requirement using the same logbook application for vessels fishing in state waters.

Comment 10: CDFW commented that the logbook is needed to collect information on seabird and whale interactions.

Response: The non-trawl logbook is required as a term and condition in the biological opinion for the Continuing Operation of the Pacific Coast Groundfish Fishery on Endangered Species Act (ESA)-listed seabirds (01EOFW00-20l7-F-0316) and is a conservation recommendation in the biological opinion for the Continuing Operation of the Pacific Coast Groundfish Fishery on ESA-listed humpback whales (WCRO-2018-01378). The purpose is to collect additional effort data in groundfish fishery sectors with partial-observer coverage ( e.g., number of hooks, number of pots, etc.) which help inform the bycatch estimation models used in conjunction with documented takes. The logbook will not require that fishermen record data on seabird or whale interactions.

Changes From the Proposed Rule

No changes were made from the proposed rule.

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 Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable laws.

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

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

Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

Paperwork Reduction Act

This final rule contains a new collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3507(d)) (PRA). This rule adds a Federal requirement to complete and submit data in the non-trawl electronic logbook application for fishing activities in the directed OA, LEFG, and IFQ gear switching fishery sectors. Public reporting burden for the Federal non-trawl logbook requirement is estimated to average 30 minutes per logbook submission, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The average vessel took about 14 fishing trips per year between 2016-2019, which would result in about 7 additional hours of paperwork to comply with the new logbook requirement over the course of the year. Vessels pursuing a targeted non-trawl groundfish strategy would be most impacted by the final rule. NMFS estimates that a subset of about ten vessels of the 742 affected vessels pursue such a strategy and take 100-180 trips per vessel per year; these entities would have an estimated additional burden of approximately 50-90 hours per vessel.

In addition, this final rule revises the existing requirements for the collection of information 0648-0573 by adding and modifying declaration codes for the purpose of monitoring and enforcing the new logbook requirement. These new declaration codes are not anticipated to alter the number of respondents, anticipated responses, burden hours, or burden costs, as the affected vessels are already required to declare their fishing activities. The new declaration codes would allow NOAA's OLE to track those vessels that are subject to the logbook requirement based on what gear type is being used and the location of their fishing activity. Public reporting burden for submitting a declaration report is estimated to average 4 minutes per individual report, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

We have submitted these new collection-of-information requirements to OMB for approval. Approved information collections may be found on www.reginfo.gov/public/do/PRAMain. We also invite the general public and other Federal agencies to comment on information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted through www.reginfo.gov/public/do/PRAMain.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, 50 CFR part 660 is amended 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, under the definition for “Open access fishery,” add paragraph (1) and reserved paragraph (2) to read as follows:

3. In § 660.12, revise paragraph (b)(3) to read as follows:

4. In § 660.13:

a. Add paragraphs (a)(2) through (4);

b. Revise paragraphs (d)(4)(iv) introductory text and (d)(4)(iv)(A)( 1) through ( 31); and

c. Add paragraphs (d)(4)(iv)(A)( 32) through ( 37).

The revisions and additions read as follows: