AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This rule requires commercial groundfish bottom longline vessels 26 feet (7.9 meters (m)) length overall and longer managed under the Pacific Coast Groundfish Fishery Management Plan to use streamer lines while setting gear or to set gear between civil dusk and civil dawn (night set) when fishing in Federal waters north of 36° North latitude. The action is necessary to fulfill terms and conditions of a 2017 United States Fish and Wildlife Service Biological Opinion to minimize incidental take of Endangered Species Act-listed short-tailed albatross (Phoebastria albatrus) by vessels in the Pacific Coast groundfish fishery. This rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Coast Groundfish Fishery Management Plan, and other applicable laws, including the Endangered Species Act.

DATES:

This final rule is effective January 10, 2020.

ADDRESSES:

Electronic copies of supporting documents referenced in this final rule, including a Regulatory Impact Review/Initial Regulatory Flexibility Analysis (Analysis), which addresses the statutory requirements of the Magnuson-Stevens Fishery Conservation and Management Act, Presidential Executive Order 12866, and the Regulatory Flexibility Act are available at the NMFS West Coast Region website at https://www.fisheries.noaa.gov/​species/​west-coast-groundfish and at the Pacific Fishery Management Council's website at http://www.pcouncil.org.

FOR FURTHER INFORMATION CONTACT:

Keeley Kent, phone: 206-526-4655, or email: keeley.kent@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

The purpose of this rule is to reduce interactions between seabirds, especially Endangered Species Act-listed species, and groundfish longline gear. Longline vessels fishing under the Pacific Coast Groundfish Fishery Management Plan (FMP) interact with short-tailed albatross, which are listed as endangered under the Endangered Species Act (ESA). A 2012 U.S. Fish and Wildlife Service (USFWS) Biological Opinion on the continued operation of the Pacific Coast groundfish fishery required vessels 55 feet (ft) (16.8 m) and longer length overall (LOA) using bottom longline gear (as defined in 50 CFR 660.11) to use streamer lines (80 FR 71975; November 18, 2015) to reduce seabird interactions. Smaller vessels were not included in the requirement. However, research since then has shown that vessel size is not a limiting factor on seabird interactions (USFWS Biological Opinion 2017).

In 2015, the Pacific Fishery Management Council's (Council) Groundfish Endangered Species Act Workgroup estimated that incidental take of short-tailed albatross in groundfish longline fisheries exceeded the incidental take level allowed in the 2012 Biological Opinion (Section 1.2 of the Analysis). Thus, NMFS reinitiated consultation in 2016 with the USFWS pursuant to Section 7 of the ESA. On May 2, 2017, USFWS published its new Biological Opinion on the fishery. The Incidental Take Statement (ITS) in the 2017 Biological Opinion lists nondiscretionary terms and conditions, one of which requires NMFS to amend the fishery regulations to require vessels fishing for groundfish in Federal waters that use longline gear to:

(i) Employ streamer lines in the commercial longline fishery of the Pacific Coast Ground Fishery consistent with the Alaska streamer line regulations for Federal waters, including the use of single streamer lines on boats 26-55 feet (7.9-16.8 m) in length, or

(ii) Set longlines after civil sunset.

The ITS requires that NMFS implement these regulation changes as soon as practical, but initiation of implementation shall not exceed a three-year period after the date of the Biological Opinion.

The Council evaluated the requirements of the ITS and analyzed an action to amend the regulations implementing the FMP to address seabird bycatch in the fishery at its November 2018, April 2019, and June 2019 meetings. The Council recommended a preferred alternative at its April 2019 meeting and took final action in June 2019. The Council deemed the proposed regulations consistent with and necessary to implement the changes to the Seabird Avoidance Program in an August 15, 2019, letter from Council Chairman Phil Anderson to Regional Administrator Barry Thom. Additional discussion of the background and rationale for the Council's development of changes to the Seabird Avoidance Program regulations is included in the proposed rule (84 FR 48094; September 12, 2019) and is not repeated here. Detailed information, including the supporting documentation the Council considered while developing these recommendations, is available at the Council's website, www.pcouncil.org.

Seabird Bycatch Avoidance Measures

This rule amends the Seabird Avoidance Program regulations for the Pacific Coast groundfish fishery at 50 CFR 660.21 to implement the requirements of the 2017 USFWS Biological Opinion. This rule extends the streamer line requirements previously in place for vessels greater than or equal to 55 ft (16.8 m) LOA to vessels greater than or equal to 26 ft (7.9 m) and less than 55 ft (16.8 m) LOA using bottom longline gear, as defined under 50 CFR 660.11, when fishing north of 36° N latitude. This rule also exempts all Pacific coast groundfish vessels subject to seabird avoidance requirements from streamer line requirements when night setting and exempts vessels greater than or equal to 26 ft (7.9 m) and less than 55 ft (16.8 m) LOA from using streamer lines when a National Weather Service (NWS) Small Craft Advisory for Winds is declared. This section describes the types of gear used in the fishery and the expanded seabird bycatch avoidance measures and exemptions.

The Council recommended, and NMFS is implementing, an exemption for vessels fishing south of 36° N latitude due to the rare presence of short-tailed albatross in this area, and as a result, decreased likelihood of interaction with fishing gear. This exemption applies to all sizes of vessels; therefore, it creates a new exemption for the vessels greater than or equal to 55 ft (16.8 m) LOA that have been subject to streamer line requirements since 2015.

Bottom longline gear includes snap gear, which is a variant of this gear type in which the gangion and hook are attached to the groundline by means of a mechanical fastener or snap, usually during gear deployment. Because vessel operators may snap the gangion and hook to the groundline during deployment, this gear configuration often means that vessels deploy the gear at a slower speed than standard bottom longline gear. This rule requires a different streamer line configuration for vessels using snap gear that are greater than or equal to 26 ft (7.9 m) and less than 55 ft (16.8 m) LOA to accommodate the slower snap gear deployment speed and is consistent with the existing regulations for vessels greater than or equal to 55 ft (16.8 m) LOA.

A portion of the vessels participating in this fishery use a variant of bottom longline gear where floats are attached to the mainline at the midpoint between the weights that sink the gear to the seafloor. The floats elevate the mainline off the seafloor to minimize depredation by “sea lice” (isopods) and hagfish, which can occur when baited hooks are immobile on the seafloor. While the floats elevate the mainline, this gear is still predominantly in contact with the seafloor, and therefore is categorized as bottom longline gear as opposed to pelagic longline gear. Because of the slower sink rate of floated longline gear, streamer lines are less effective in minimizing seabird bycatch. With floated gear, that portion of the longline adjacent to the float is exposed to seabird attacks well beyond the extent of the streamer lines. Due to safety concerns, difficulty in assessing the number of vessels using floated longline gear because of data limitations, and concerns about the burden such a requirement would place on vessels that may typically only conduct day trips, the Council did not include special requirements for floated mainline gear at this time. However, we acknowledge that there are concerns with the effectiveness of streamer lines for reducing seabird interactions for floated mainline gear. NMFS intends to pursue further research on this issue and to fulfill the terms and conditions of the 2017 Biological Opinion, which directs NMFS to conduct research that investigates new or improved methods of reducing bycatch of short-tailed albatross that are safe and effective within the longline fishery. Additional discussion of NMFS and Council consideration of this gear subtype is included in the proposed rule (84 FR 48094; September 12, 2019) and is not repeated here.

This rule requires the following configurations of streamer lines for vessels greater than or equal to 26 ft (7.9 m) and less than 55 ft (16.8 m) LOA.

Vessels with mast, poles, and rigging and not using snap gear would be required to use a single streamer line while setting gear. The single streamer line must:

1. Be a minimum of 300 ft (91.4 m) in length;

2. Have streamers spaced every 16.4 ft (5 m);

3. Be deployed before the first hook is set in such a way that streamers are in the air for a minimum of 131.2 ft (40 m) aft of the stern and within 6.6 ft (2 m) horizontally of the point where the main groundline enters the water;

4. Have individual streamers that hang attached to the mainline to 9.8 in (0.25 m) above the waterline in the absence of wind;

5. Have at least eight streamers out of the water aft of the vessel; and

6. Have streamers constructed of material that is brightly colored, UV-protected plastic tubing or 3/8 inch (9.5 millimeters (mm)) polyester line or material of an equivalent density.

Vessels with mast, poles, and rigging and using snap gear must use a single streamer line while setting gear. The single streamer line must:

1. Be a minimum of 147.6 ft (45 m) in length;

2. Have streamers spaced every 16.4 ft (5 m);

3. Be deployed before the first hook is set in such a way that streamers are in the air for a minimum of 65.6 ft (20 m) aft of the stern and within 6.6 ft (2 m) horizontally of the point where the main groundline enters the water;

4. Have individual streamers that hang attached to the mainline to 9.8 in (0.25 m) above the waterline in the absence of wind;

5. Have at least four streamers out of the water aft of the vessel; and

6. Have streamers constructed of material that is brightly colored, UV-protected plastic tubing or 3/8 inch (9.5 mm) polyester line or material of an equivalent density.

Vessels without mast, poles, and rigging must use at least one buoy bag line while setting gear:

1. A buoy bag line consists of two components: A length of line (without streamers attached) and one or more float devices at the terminal end.

2. Have a buoy bag line that hangs over the area where baited hooks may be accessible to seabirds, which is generally within 6.5 feet (2 m) of the sea surface.

This rule exempts all Pacific coast groundfish vessels subject to seabird avoidance requirements from streamer line requirements when night setting. In the rule, we define night setting as deployment of gear between civil dusk (defined as one hour after local sunset) and civil dawn (defined as one hour before local sunrise). This exemption applies to all sizes of vessels and therefore creates a new exemption for the vessels greater than or equal to 55 ft (16.8 m) LOA that have been subject to streamer line requirements since 2015.

Finally, this rule includes weather safety exemptions due to the risk of entanglement of streamer lines in fishing gear in high winds. In addition to the existing weather safety exemptions for vessels greater than or equal to 55 ft (16.8 m) LOA, this rule includes a weather safety exemption for vessels greater than or equal to 26 ft (7.9 m) and less than 55 ft (16.8 m) LOA when fishing in an area under a NWS Small Craft Advisory for winds (winds 21 to 33 knots) or in an area seaward of such an area.

Comments and Responses

NMFS solicited public comment on the proposed seabird avoidance measures (84 FR 48094, September 12, 2019). The comment period ended October 15, 2019. NMFS received two comment letters: One from the National Audubon Society on behalf of five organizations and the other from a private citizen. The comment letters raise similar issues regarding the potential need for additional NMFS actions. The letters are available in their entirety from NMFS (see ADDRESSES) or at the following web address: https://www.regulations.gov/​docket?​D=​NOAA-NMFS-2019-0063.

Comment 1: The proposed regulations do not address the bycatch issue posed by pelagic (non-bottom) longline fishing. NMFS should consider extending the requirement for streamer lines to all forms of longline fishing.

Response: This comment is outside the scope of this action. As noted earlier in this preamble in the “Seabird Bycatch Avoidance Measures” section, this rule applies to bottom longline gear, which includes floated longline gear. The West Coast groundfish fishery does not use pelagic longlines. Pelagic longline gear is used in the West Coast Highly Migratory Species fishery to target tuna, swordfish, and other billfish. More information about the West Coast Highly Migratory Species fishery can be found at https://www.fisheries.noaa.gov/​management-plan/​west-coast-highly-migratory-species-management-plan.

Comment 2: The proposed rule does not reflect the direction in the Council's motion to develop enforceable floated mainline gear configurations that can sink within the streamer line zone to reduce seabird interactions.

Response: As discussed in the proposed rule and elsewhere in this final rule, the Council acknowledged concerns with the effectiveness of streamer lines for reducing seabird interactions for floated mainline gear and requested NMFS and the industry collaborate on research on strategies to modify floated mainline gear so that streamer lines are more effective, or adjust the configuration of streamer lines to make them more effective for floated mainline gear. NMFS intends to pursue further research both to meet the Council's recommendation and to fulfill the terms and conditions of the 2017 Biological Opinion, which directs NMFS to conduct research that investigates new or improved methods of reducing bycatch of short-tailed albatross that are safe and effective within the longline fishery. This term and condition also specifically notes that NMFS should pursue research on the effect of floating gear on short-tailed albatross bycatch and improved methods to minimize risk of bycatch.

Comment 3: There was no mention of penalties for failure to comply with the requirements of the regulation. To be effective, this regulation should have some indication of how compliance will be measured and whether, if any, penalties exist for noncompliance.

Response: The proposed rule described the general requirements, as well as the gear requirements and performance standards that apply to vessel operators. The requirements and standards of the seabird avoidance program are enforceable under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The enforcement policy and penalties of the Magnuson-Stevens Act are described in the Code of Federal Regulations (50 CFR parts 600.735 and 600.740).

Comment 4: The proposed rule fails to acknowledge the Council's motion to account for current uncertainties and future changes to the overlap of short-tailed albatrosses and fleet effort. In its final rule, NMFS must acknowledge the Council's motion, and include tasks and timeline for NMFS to review and report back to the Council on short-tailed albatross telemetry or observer data south of 36° N latitude.

Response: The Council and NMFS will revisit the exemption for vessels fishing south of 36° N latitude as new data become available. The appropriate venue for this analysis is the Council's Groundfish Endangered Species Workgroup, which meets at least biennially. The Groundfish Endangered Species Workgroup includes five NMFS employees with expertise in marine mammals, fish, sea turtles, and seabirds. NMFS intends to ensure new data on any changes to the overlap of short-tailed albatrosses and fleet effort is incorporated into the ESA Workgroup's analysis and therefore made available to the Council and NMFS for further consideration. The Council's Groundfish Endangered Species Workgroup biennially reviews bycatch estimates for certain ESA-listed species taken in the fishery, including short-tailed albatross. The Workgroup can make recommendations to the Council on data collection or management actions necessary to evaluate or minimize incidental take of these species in the groundfish fishery. The Council can then choose to further analyze and develop these recommendations for implementation in the groundfish fishery.

Changes From the Proposed Rule

There is one non-substantive change to the regulations implemented in this final rule from those in the proposed rule. NMFS determined that additional regulatory changes were required to effectuate the purpose and intent described in the proposed rule. Specifically, additional regulatory changes were needed to clarify implementation of the terms and conditions of the 2017 USFWS Biological Opinion regarding reporting and handling requirements for short-tailed albatross. The regulations in the proposed rule clarified the reporting and handling requirements for short-tailed albatross for vessels in the bottom longline fishery consistent with the 2017 Biological Opinion. This final rule modifies existing regulations at §§ 660.140(g)(1) and (g)(3)(ii)(B) and 660.604(p)(1)(ii) to ensure consistency for the reporting and handling requirements regarding short-tailed albatross for vessels in the Pacific Coast groundfish fishery. This change in the regulations clarifies that vessels using trawl gear while fishing under the Pacific Coast groundfish FMP follow the handling and reporting requirements for injured or dead short-tailed albatross as detailed in § 660.21(c)(1)(v). The requirement that NMFS disseminate short-tailed albatross disposition instructions for fishers and observers in the Pacific Coast groundfish fishery has been in place since the 2012 Biological Opinion completed by the USFWS; the change in regulations in this final rule would clarify that those instructions also apply to trawl vessels. This change from the proposed rule is not substantive, has no on-the-water effects, and will reduce potential confusion regarding handling and reporting requirements for short-tailed albatross.

Classification

Pursuant to sections 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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). A summary of any significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, and a summary of the analyses completed to support the action are addressed below. NMFS also prepared a Regulatory Impact Review (RIR) for this action. A copy of the RIR is available from NMFS (see ADDRESSES), and per the requirements of 5 U.S.C. 604(a), the text of the FRFA follows:

Final Regulatory Flexibility Analysis

As applicable, section 604 of the Regulatory Flexibility Act (RFA) requires an agency to prepare a final regulatory flexibility analysis (FRFA) after being required by that section or any other law to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code. The following paragraphs constitute the FRFA for this action.

This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of any significant issues raised by the public comments, NMFS's responses to those comments, and a summary of the analyses completed to support the action. Analytical requirements for the FRFA are described in the RFA, section 604(a)(1) through (6). FRFAs contain:

1. A statement of the need for, and objectives of, the rule;

2. A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;

3. The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

4. A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available;

5. A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and

6. A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

The “universe” of entities to be considered in a FRFA generally includes only those small entities that can reasonably be expected to be directly regulated by the action. If the effects of the rule fall primarily on a distinct segment of the industry, or portion thereof (e.g., user group, gear type, geographic area), that segment will be considered the universe for purposes of this analysis.

In preparing a FRFA, an agency may provide either a quantifiable or numerical description of the effects of a rule (and alternatives to the rule), or more general descriptive statements, if quantification is not practicable or reliable.

Need for and Objective of This Final Rule

The need for and objective of this final rule is described above in the Background section of the preamble and not repeated here.

Summary of Significant Issues Raised During Public Comment

NMFS published a proposed rule to modify the Seabird Avoidance Program for the West Coast groundfish fishery on September 12, 2019 (84 FR 48094). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on October 15, 2019. NMFS received two comment letters on the proposed rule. No comments were received specific to the IRFA. The Chief Counsel for Advocacy of the SBA did not file any comments on the IRFA or the proposed rule.

A Description and an Estimate of the Number of Small Entities to Which the 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 and not dominant in its field of operation (including its affiliates). A small harvesting business has combined annual receipts of $11 million or less for all affiliated operations worldwide. A small fish-processing business is one that employs 750 or fewer persons for all affiliated operations worldwide.

For marinas and charter/party boats, a small business is one that has annual receipts not in excess of $7.5 million. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A nonprofit organization is determined to be “not dominant in its field of operation” if it is considered small under one of the following Small Business Administration (SBA) size standards: Environmental, conservation, or professional organizations are considered small if they have combined annual receipts of $15 million or less, and other organizations are considered small if they have combined annual receipts of $7.5 million or less.

The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

This rule would directly affect groundfish longline vessels. These vessels are defined as small entities based on the criteria provided above. Baseline information reported in Section 3.5.2 of the Analysis suggests that as many as 387 of such vessels greater than or equal to 26 ft (7.9 m) and less than 55 ft (16.8 m) LOA could be subject to the requirement to use streamer lines or set gear at night. An additional 37 vessels greater than or equal to 55 ft (16.8 m) LOA could be subject to elements of the rule (area exemptions south of 36° N latitude, night setting option) and also qualify as small entities. These counts are the maximum estimate, as vessels move in and out of the fishery between years.

There is not a strict one-to-one correlation between vessels and entities; some persons or firms likely have ownership interests in more than one vessel. Furthermore, as discussed in Section 3.5.4 of the Analysis, most of these vessels had a relatively low level of participation in the fishery during the baseline period, although in principal any level of participation would trigger seabird avoidance requirements (streamer line use, night setting). Given these factors, the actual number of entities regulated by this action could be lower than the preceding estimates.

Recordkeeping, Reporting, and Other Compliance Requirements

There are no reporting or record-keeping requirements with this final rule. All longline vessels, whether classified as small or not, will be subject to new compliance requirements under this final rule to either use streamer lines or night set in order to reduce seabird interactions.

Description of Significant Alternatives to This Final Rule That Minimize Economic Impacts on Small Entities

There are no significant alternatives to this final rule that would accomplish the stated objectives in a way that would reduce economic impacts of the final rule on small entities. This action responds to a non-discretionary term and condition in the 2017 USFWS Biological Opinion, which specifies the seabird avoidance measures that must be implemented to reduce the risk of incidental take of short-tailed albatross. For that reason, there are no significant alternatives to the action evaluated in this FRFA.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The 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 prepared. Copies of this final rule are available from the West Coast Regional Office (see ADDRESSES), and the guide will be included in a public notice sent to all members of the groundfish email group. To sign-up for the groundfish email group, click on the “subscribe” 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.

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 § 660.21, revise paragraphs (b) introductory text, (b)(1), and (c)(1) through (3) to read as follows:

3. In § 660.140, revise paragraphs (g)(1) and (g)(3)(ii)(B) to read as follows:

4. In § 660.604, revise paragraphs (p)(1)(ii) and (p)(2) to read as follows: