Proposed Rule2022-03516
Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Electronic Monitoring Program Regulations for Bottom Trawl and Non-Whiting Midwater Trawl Vessels
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 1, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This proposed rule would implement electronic monitoring (EM) program regulations for vessels using groundfish bottom trawl and non- whiting midwater trawl gear in the Pacific Coast Groundfish Trawl Catch Share Program. The proposed action would allow vessels using bottom trawl and non-whiting midwater trawl gear to use EM in place of human observers to meet requirements for 100 percent at-sea catch monitoring. The proposed action is intended to increase operational flexibility and reduce monitoring costs for vessels in the groundfish trawl fishery. The proposed rule would also revise some existing regulations for EM vessels and EM service providers to clarify and streamline EM program requirements.
Full Text
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<title>Federal Register, Volume 87 Issue 40 (Tuesday, March 1, 2022)</title>
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[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
[Proposed Rules]
[Pages 11382-11394]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03516]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 220204-0040]
RIN 0648-BH70
Fisheries off West Coast States; Pacific Coast Groundfish
Fishery; Electronic Monitoring Program Regulations for Bottom Trawl and
Non-Whiting Midwater Trawl Vessels
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed rule would implement electronic monitoring (EM)
program regulations for vessels using groundfish bottom trawl and non-
whiting midwater trawl gear in the Pacific Coast Groundfish Trawl Catch
Share Program. The proposed action would allow vessels using bottom
trawl and non-whiting midwater trawl gear to use EM in place of human
observers to meet requirements for 100 percent at-sea catch monitoring.
The proposed action is intended to increase operational flexibility and
reduce monitoring costs for vessels in the groundfish trawl fishery.
The proposed rule would also revise some existing regulations for EM
vessels and EM service providers to clarify and streamline EM program
requirements.
DATES: Comments on this proposed rule must be received no later than
March 31, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2021-0127 by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the
[[Page 11383]]
Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
enter NOAA-NMFS-2021-0127 in the Search box, click the ``Comment''
icon, complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS and to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information collection by selecting
``Currently under 30-day Review--Open for Public Comments'' or by using
the search function.
Electronic Access
This proposed rule is accessible at the Office of the Federal
Register website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a>. Background
information and documents are available at the NMFS West Coast Region
website at: <a href="https://www.fisheries.noaa.gov/species/west-coast-groundfish">https://www.fisheries.noaa.gov/species/west-coast-groundfish</a> and at the Pacific Fishery Management Council's website at
<a href="https://www.pcouncil.org/managed_fishery/electronic-monitoring/">https://www.pcouncil.org/managed_fishery/electronic-monitoring/</a>.
FOR FURTHER INFORMATION CONTACT: Colin Sayre, phone: 206-526-4656, or
email: <a href="/cdn-cgi/l/email-protection#3655595a5f581845574f4453765859575718515940"><span class="__cf_email__" data-cfemail="97f4f8fbfef9b9e4f6eee5f2d7f9f8f6f6b9f0f8e1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The Pacific Coast Groundfish Fishery Management Plan (FMP)
specifies management measures for over 90 different groundfish species
in Federal waters off the West Coast states. Target species in the
commercial fishery include Pacific whiting (hake), sablefish, dover
sole, and rockfish, which are harvested by vessels primarily using
midwater trawl and bottom trawl gear, and to a lesser extent ``fixed
gear'' fish pots and longline. The trawl fishery is managed under the
West Coast Groundfish Trawl Catch Share Program (Catch Share Program),
which was implemented through Amendment 20 to the FMP in January 2011.
The Catch Share Program consists of an individual fishing quota (IFQ)
program for the shorebased trawl fishery (including whiting and non-
whiting sectors), and cooperatives for the at-sea mothership (MS) and
catcher/processor (C/P) trawl fisheries (whiting only). The Catch Share
Program requires 100 percent monitoring of vessels at-sea, and dockside
when offloading, to ensure accountability for all landings and discards
of allocated IFQ species. The West Coast Groundfish Observer Program
(WCGOP) is responsible for the training, briefing, and in-season
support of at-sea observers in the Catch Share Program. WCGOP helps to
manage and review the catch data collected by observers while at-sea.
Vessel owners and first receivers are responsible for obtaining and
funding catch share observers and catch monitors as a condition of
participating in the Catch Share Program. To provide a potential cost-
saving alternative to human observers, the Pacific Fishery Management
Council, NMFS, and groundfish stakeholders have been developing an
electronic monitoring (EM) program as an option to meet at-sea
monitoring requirements of the Catch Share Program. EM uses cameras and
associated sensors to record and monitor fishing activities while a
vessel is operating at sea. Video data is later reviewed by an analyst
onshore to collect catch and effort information. EM can reduce
monitoring costs for some vessels because it does not require deploying
a human observer to the vessel, and associated, labor, travel, and
logistical expenses.
On September 6, 2016, NMFS published the proposed rule providing a
regulatory framework for EM in the Pacific Coast groundfish fisheries,
and specific regulations for EM use with whiting midwater trawl gear
and fixed gear (81 FR 61161). As discussed in that proposed rule, the
Council originally contemplated including regulations for all gear
types used in the Catch Share Program (whiting, non-whiting midwater,
bottom trawl, and fixed gear) in one regulatory amendment. However, at
the time, additional information was needed to finalize protocols for
the use of EM on trips using bottom-trawl and non-whiting midwater
gear. In April, September, and November 2017, the Council discussed
various aspects of the EM program and took final action to recommend
the use of EM with bottom trawl and non-whiting midwater trawl gear.
On June 28, 2019, NMFS published the final rule to allow the use of
EM on whiting and fixed gear trips (84 FR 31146). The final rule
established the overall EM program requirements, including an
application process and responsibilities for participating vessel
owners and operators and EM service providers, requirements for first
receivers receiving catch from EM trips, and detailed gear-specific
protocols for the use of EM on whiting and fixed gear trips. The final
rule also set the implementation of third party EM service provider
data services to January 1, 2021, to provide additional time to prepare
for implementation.
At the April and June 2020 meetings, the Council considered and
ultimately recommended other minor regulatory changes to existing EM
program regulations implemented under the June 2019 final rule (84 FR
31146; June 28, 2019). These regulatory changes were identified and
developed from information collected through exempted fishing permits
(EFPs) used to test EM systems and protocols, and are intended to
clarify and streamline EM program requirements. These proposed
regulatory changes are included under this proposed rule, and are
described in the following sections of this preamble.
At its April and June 2020 meetings the Council also recommended a
delay in program implementation until January 1, 2022. NMFS approved
the recommendation, to strengthen Council and industry support for the
EM program, and to increase participation when the program is
implemented. NMFS published a subsequent proposed rule (85 FR 53313;
August 28, 2020) and final rule (85 FR 74614; November 23, 2020) that
delayed implementation of the EM program by one year until January 1,
2022, to provide additional time for industry and prospective service
providers to prepare for implementation.
At the June 2021 meeting, the Council again discussed delaying
implementation of all EM program regulations, and took action at the
September 2021 meeting to recommend that NMFS delay implementation of
the entire EM program until January 1, 2024. NMFS published an interim
final rule on October 6, 2021 (86 FR 55525) that changed effective
dates in regulations in order to delay all other EM program regulations
until at least January 1, 2024, and only after NMFS issues a public
notice at least 90 calendar days before it will begin accepting
applications for EM Authorizations for the first year of the Program.
The Council and the industry have expressed the need to further develop
a mechanism for the industry to fund video review and storage by
Pacific
[[Page 11384]]
States Marine Fishery Commission (PSMFC). The Council and members of
the fishing industry would like PSMFC to continue participating as a
NMFS-certified, sole-source service provider under the EM regulatory
program. They assert that PSMFC can provide video review services at
lower cost than private sector service provider companies. Consistent
with the existing regulations implemented under the October 6, 2021
interim final rule (86 FR 55525), these proposed regulations would
similarly not be implemented before January 1, 2024.
Despite the delay in implementation of the EM program, NMFS is
proceeding with this proposed rule that would allow the use of EM on
trips with bottom-trawl and non-whiting midwater trawl gear. Should the
Council take action to change EM service provider regulations to allow
PSMFC to function as a sole-source EM service provider, NMFS would need
to initiate a separate proposed and final rulemaking to make necessary
changes to the existing regulations for EM service providers that were
finalized under the June 2019 final rule (84 FR 31146; June 28, 2019).
Whether the Council chooses to take action to change EM service
provider regulations, or not, completing the rulemaking process for the
use of EM on bottom-trawl and non-whiting midwater trawl trips will
ensure all regulations are in place for vessels to use EM with any
legal groundfish gear type in advance of EM program implementation.
In the October 2021 interim final rule, NMFS acknowledged that some
permit applications had already been received at the time of the
rulemaking. NMFS will consider and review these applications in advance
of the date the program is fully implemented. Upon review NMFS will
make a determination regarding the status of the applicant and may
request updated information.
The Council deemed the proposed regulations necessary and
appropriate to implement this action in a January 20, 2022, letter from
Council Executive Director, Merrick Burden, to Regional Administrator
Barry Thom. Under the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), NMFS is required to publish
proposed rules for comment after preliminarily determining whether they
are consistent with applicable law. We are seeking comment on the
proposed regulations in this action and whether they are consistent
with the Pacific Coast Groundfish FMP, the Magnuson-Stevens Act and its
National Standards, and other applicable laws.
II. Proposed Regulations
Proposed Measures for Using EM on Bottom Trawl and Non-Whiting Midwater
Trawl Trips
The June 2019 final rule (84 FR 31146; June 28, 2019) implemented
the overall framework and general requirements for the EM Program,
including an application process for vessel owners and EM service
providers and responsibilities for all program participants. This rule
proposes to allow vessels participating in the EM Program to use bottom
trawl gear or midwater trawl gear targeting non-whiting species, under
the same general program requirements already in place for trips
targeting whiting or using fixed gear. Vessel owners would be able to
apply to NMFS to use EM in place of human observers to meet the 100-
percent at-sea monitoring requirements of the Catch Share Program for
bottom trawl or non-whiting midwater trawl trips. As is currently
required under the EM Program regulations, vessel owners intending to
use EM for bottom trawl or non-whiting midwater trawl trips would be
required to develop a vessel monitoring plan (VMP) which documents
installation of EM systems, including specific plans and procedures for
system operation, maintenance, and catch handling. This information
would be submitted to NMFS for review as part of the vessel's
application for authorization to use EM. The vessel operator would be
required to record discards of IFQ species on a logbook, which would
initially be used to debit quota pounds from the vessel's account. The
EM video data would then be reviewed by the vessel's EM provider and
used to validate the discards reported in the logbook. The amount of
video reviewed to audit the logbook would be as specified by NMFS in
consultation with the Council and based on performance.
A detailed description of EM program requirements is contained in
the September 2016 proposed rule (81 FR 61161; September 6, 2016) and
June 2019 final rule (84 FR 31146; June 28, 2019) and is not repeated
here. This proposed rule revises the gear-specific requirements of the
EM Program to add requirements for trips using bottom trawl and non-
whiting midwater trawl gear, and are described in the following
sections of this preamble.
Catch Retention
Under this proposed rule, two different discard and catch retention
rules could be used with EM on bottom trawl, and non-whiting midwater
trawl trips: ``maximized'' or ``optimized'' retention. Vessel operators
would be able choose the preferred retention rule under which they
would plan to operate for a fishing trip using EM. As part of the
required declaration report, prior to departing on a fishing trip,
vessel operators would declare whether they intend to use maximized or
optimized retention rules for the trip. Declaration reports are
described in additional detail in following sections of this preamble.
Under proposed ``maximized'' retention requirements, vessels on
bottom trawl and non-whiting midwater trawl trips would not sort or
discard catch at-sea, and would be required to retain all catch until
landing, with exceptions for prohibited and protected species.
Under ``optimized'' retention, EM vessel operators would be allowed
to discard species that can be differentiated on camera, and retain
those species that cannot be easily distinguished in video data. Some
groundfish species are difficult to distinguish from each other without
close inspection of certain physical features which cannot be easily
viewed using video data. Species easily differentiated that may be
discarded would be listed in Sec. 660.604(p).
Vessel operators using EM on bottom trawl and non-whiting midwater
trawl trips would be responsible for ensuring all discarded catch would
be discarded following catch handling instructions in the NMFS-accepted
VMP. This proposed rule would allow NMFS to specify alternate retention
requirements in a NMFS-accepted VMP through the process described at
Sec. 660.604(f), after consultation with the Council and issuance of a
public notice notifying the public of the changes.
Both retention rules have trade-offs, depending on the target
species and gear type used. ``Maximized'' retention would simplify
catch handling at sea, and video review as only prohibited and
protected species discards would need to be differentiated on camera.
``Optimized'' retention would allow vessel operators to discard catch
that can be differentiated on camera, and would reduce the burden of
having to store and later dispose of unmarketable or otherwise
undesirable fish. The Council originally recommended ``optimized''
retention rules as the preferred alternative for bottom trawl and non-
whiting midwater EM trips because the Council considered ``maximized''
retention too restrictive. However, some EFP vessel operators on
[[Page 11385]]
non-whiting midwater trawl trips targeting rockfish expressed a
preference for ``maximized'' retention as it simplified catch handling
in a manner consistent with vessel operation on midwater whiting trips.
The Council determined that allowing vessel operators to choose the
retention rules that best fit the operation of gear and vessel, as well
as the characteristics of the target species, would provide operational
flexibility and ensure the reliability of EM video data for discard
accounting.
This proposed rule would also expand the definition of prohibited
species for the purposes of retention requirements under EM regulations
at Sec. 660.601. California Department of Fish and Wildlife (CDFW)
recommended this proposed regulatory change to ensure state-managed
species would be treated in the same manner as prohibited species if
the vessel operator, or first-receiver, does not have the appropriate
state permit to land and sell these particular species of fish. Because
the retention/discard species list can change through time, CDFW
recommended to the Council regulatory language that would cover any
state-managed species to eliminate the need for further revisions
should other state-managed species be added or removed from the lists.
EM Declaration and Switching Between EM and Observers
Under the proposed rule, vessels on bottom trawl and non-whiting
midwater trawl trips would be allowed to switch between using EM
systems on some trips and human observers on others. Current West Coast
fisheries regulations at Sec. 660.13(d) require vessel operators to
declare the fishery sector in which they will participate, the area to
be fished, and the gear and monitoring type (EM or observers) they
intend to use prior to leaving port, with limited exemptions. The gear
types or sectors, and monitoring types that must be declared are listed
in regulations at Sec. 660.13(d)(4)(iv)(A). These declarations are
sent to the NMFS Office of Law Enforcement (OLE), and are binding for
the duration of the fishing trip for which they have been made. This
proposed rule would modify the list of declarations to include EM as a
monitoring type that may be selected and declared on trips with bottom
trawl and non-whiting midwater trawl gear.
Under current regulations at Sec. 660.604(e)(3)(ii), EM vessel
operators are required to submit annual tentative fishing plans to
NMFS. Tentative fishing plans are used by WCGOP and observer providers
to plan training and deployment of observers. Tentative fishing plans
are a description of the vessel owner's fishing plans for the year,
including which fishery the vessel owner plans to participate in, from
what ports, and when the vessel owner intends to use EM and observers.
The information provided in tentative fishing plans is for purposes of
planning observer training and deployments, and is not binding.
Under this proposed rule, vessel owners and operators taking bottom
trawl and non-whiting midwater trawl trips would not be restricted on
the number of times they could switch between EM and observers during
the year. Vessel operators are required to communicate their intent to
use either monitoring type before fishing through declarations to NMFS
OLE. The Council determined that by using tentative fishing plans,
disruption to observer training and deployment would be mitigated
should vessel operators choose to switch monitoring types, therefore
eliminating the need to require limits on switching monitoring types.
The option to switch between EM and observers provides vessel operators
flexibility to use the best monitoring strategy when considering
efficiency, cost, or other operational factors of their individual
fishing and business plans at a given time. There would be no limit on
switching between observers and EM for non-whiting midwater trawl and
groundfish bottom trawl vessels.
Observer Program Declaration
Under existing regulations at Sec. 660.604(n), as described above,
a vessel operator must declare their intent to use either EM or
observers 48 hours prior to leaving port. Under proposed regulations
for ``maximized'' and ``optimized'' retention, the operator would also
be required to include the retention rules they intend to use in their
declaration to WCGOP 48 hours prior to leaving port on a trip using EM
with bottom trawl or non-whiting midwater trawl gear. This timeframe
and declaration allows for the planning of observer deployment.
``Optimized'' retention EM trips would continue to require partial
observer coverage for the purpose of collecting biological samples of
discarded catch. Biological samples include age, sex, and length
specimen data which cannot be obtained through EM systems. Requiring
the vessel operator to notify WCGOP of their intended retention type
will ensure optimized retention trips can be selected for biological
sampling. WCGOP does not require partial observer coverage on maximized
retention EM trips for biological sampling at this time, but could
potentially in the future.
Group EM Authorization and Self-Enforcing Agreements
Under the proposed regulations, a group of eligible vessel owners
participating in the shorebased IFQ sector, including those that take
bottom trawl and non-whiting midwater trawl trips, may obtain a group
EM authorization through a self-enforcing agreement. Through a private,
contractual arrangement, a self-enforcing agreement allows a co-signed
group of vessels, owners, operators, and other interested parties to
cooperatively encourage, and enforce, compliance of EM program
requirements by members. To be considered for a group EM authorization,
a group of vessel owners must submit a complete initial EM
authorization application package to NMFS for review and approval. The
package must include a copy of the self-enforcing agreement to be
eligible to receive a group EM authorization. Participating vessel
owners would be required to agree to conduct fishing operations
according to the terms of the self-enforcing agreement. NMFS would
still bear the ultimate responsibility for enforcing the EM
regulations.
The self-enforcing agreement would need to include a description of
participating members, responsibilities, procedures for communication
with members and NMFS, equipment performance standards, provisions for
the use and protection of confidential data, measures to enforce
compliance, procedures for addressing non-compliance of members, and
annual reports to the Council.
Under these proposed regulations, NMFS would have the authority to
invalidate a group EM authorization if determined that any of the
vessels, owners, and/or operators no longer meet the eligibility
criteria for the self-enforcing agreement. NMFS would first notify the
members of the group EM authorization of the deficiencies in writing,
providing instructions, for members to correct the deficiencies. If the
deficiencies are not resolved upon review of the first trip following
the notification, NMFS will notify the members in writing that the
group EM authorization is invalid and that the members are no longer
exempt from observer coverage at Sec. Sec. 660.140(h)(1)(i) and
660.150(j)(1)(i)(B) for that authorization period. After the
invalidation of a group EM authorization, individual vessels would be
able to apply for individual authorizations.
[[Page 11386]]
The Council recommended the allowance of self-enforcing cooperative
agreements for shorebased IFQ vessels in the EM program based on prior
participation in EM EFPs by fishing cooperatives. Under proposed
regulations, a fishing collective that has operated under a cooperative
self-enforcing agreement to test EM under EFPs would be able to apply
for authorization to continue self-enforced compliance with the EM
program. This proposed rule would allow additional groups of shorebased
IFQ vessels applying for EM authorization to enter in the self-
enforcing cooperative agreements. These agreements would help to
encourage compliance with the many day-to-day responsibilities for EM
system maintenance and catch handling requirements of the EM program.
Regulatory Changes To Refine Existing EM Program
In June 2019, NMFS published the final rule to implement an EM
program for whiting and fixed gear vessels operating within the trawl
fishery (84 FR 31146; June 28, 2019), establishing responsibility
requirements for vessel operators using EM systems, and for EM service
providers. These responsibilities are detailed in the final rule, and
include declaration of EM system use by vessel operators, protocols for
transferring and handling EM data, logbook processing requirements, and
technical reports by EM service providers. Minor changes necessary to
clarify these regulations were identified after the publication of the
2019 final rule. The regulatory changes described below were developed
through Council discussion with NMFS and members of industry at the
Council's April and June 2020 meetings. The Council's intent in
developing these regulatory changes is to refine and clarify certain EM
program requirements and improve the effectiveness of the EM program
overall in meeting its intended monitoring goals for the Trawl Catch
Share Program.
1. Hard Drive Deadline
This proposed regulatory change would increase the hard drive
submission deadline to 72 hours from the beginning of the offload
following a fishing trip in which EM was used. Under current EM program
regulations at Sec. 660.604(s)(3), vessels using EM systems are
required to submit hard drives storing EM video data within 24 hours of
beginning an offload after a fishing trip. Increasing this deadline to
72 hours would align it with the hard drive submission requirements
used under EM EFPs. This change would provide additional time for
vessel operators to comply with hard drive submission requirements with
minimal impact to the timeliness of data. This change would also ensure
a smooth transition for vessels operating under EFPs to the full EM
program regulations when they become effective.
2. Reusing Hard Drives
This proposed regulatory change would require the scrubbing of EM
hard drives only if end-to-end encryption is not used. Current EM
regulations at Sec. 660.603(m)(3) require service providers to remove
all EM data before hard drives can be reused in the field. This
requirement was intended to ensure protection of confidential
information for vessel owners and operators. However, regular scrubbing
of hard drives can shorten their functional life, and require their
replacement more frequently, increasing operational costs for EM users.
NMFS and the Council determined that the use of end-to-end encryption
would sufficiently protect sensitive information and extend the life of
EM hard drives. End-to-end encryption protects information encrypted by
the sender, allowing only recipients with the encryption key to decrypt
and access the information. Third parties without the encryption key
would not have the means to read the files. Starting in 2017, NMFS
stopped requiring scrubbing of hard drives that use end-to-end
encryption in the EM EFP, which is consistent with practices in other
regions. This regulatory change would reduce program costs, and still
allow vessel owners to work with service providers to develop more
strict requirements for the treatment of hard drives.
3. Limit on Switching Between EM and Observers for Whiting Vessels
The Council is recommending removing the limit on switching between
observers and EM for whiting trips. Current regulations at Sec.
660.604(m) restrict vessel operators on whiting trips from revising a
monitoring declaration more than twice per calendar year, except in the
case of an EM system malfunction. The limit was intended to prevent
frequent switching that could disrupt deployment planning and affect
the availability of observers. As NMFS described in the September 2016
proposed rule (81 FR 61161; September 6, 2016), and finalized in the
June 2019 final rule (84 FR 31146; June 28, 2019), NMFS may waive the
limit on switching between monitoring types if it is not necessary for
planning observer deployment. After the final rule published, NMFS and
the Council determined that a regulatory restriction on how many times
a vessel taking whiting trips can switch between observers and EM was
unnecessary. Under current regulations, vessels owners are required to
provide a tentative fishing plan when they apply for their annual EM
Authorization, in which the vessel owner gives NMFS advance notice of
their plans to use EM and observers for the upcoming fishing year.
WCGOP and observer providers then can use this information for planning
purposes. This information negates the need for restrictions on
switching between observers and EM. Therefore, the Council recommended,
and NMFS proposes eliminating the limit on switching between EM and
observers for whiting trips under this proposed rule. This proposed
change would align the flexibility in moving between EM and observer
coverage for all trip types (bottom trawl, whiting midwater, non-
whiting midwater, and fixed gear).
4. Mothership/Catcher Vessel (MS/CV) Endorsement
Current EM regulations at Sec. 660.604(e)(1)(iii) require a vessel
applying to use EM in the mothership sector to have a valid mothership/
catcher vessel (MS/CV) endorsement to qualify for authorization. This
requirement was initially included for vessels testing EM under EFPs,
as having valid permits for all intended fishing activities is a
standard requirement for EFP eligibility. However, the regulations
governing Mothership cooperatives at Sec. 660.150(g)(1) allow for a
vessel without an MS/CV endorsement, but that is enrolled in the
mothership cooperative to deliver to a mothership. It was not the
Council's and NMFS's intent to restrict participation in EM to only
those vessels with MS/CV endorsement. Including this eligibility
criterion was a holdover from the EFP terms and conditions and is not
consistent with Council intent. Therefore, this proposed rule would
remove the eligibility requirement at Sec. 660.604(e)(1)(iii) for an
MS/CV endorsement to be eligible to use EM on MS/CV trips.
5. Logbook Processing
This proposed regulatory change would require all vessel owners to
submit discard logbooks directly to their EM service providers
following a fishing trip in which EM was used. EM service providers
would receive and process discard logbooks by entering data, performing
quality assurance and control, and subsequently submit logbook data to
NMFS for review.
[[Page 11387]]
Service providers would be required to submit initial logbook data to
NMFS within two business days of receipt from vessel operators.
Current EM regulations at Sec. 660.604(s) assume vessel operators
would submit discard logbooks directly to NMFS or its agent for
processing. Under this model, NMFS would data enter, and check logbooks
for accuracy and issues, which would then be used to initially debit
discarded catch from vessel IFQ accounts. EM service providers review
video data separately, with WCGOP providing some logbook data to EM
service providers that is necessary for completing the video review,
such as trawl gear codend capacity, but with most identifying logbook
data withheld to ensure video review is done blind.
Under current regulations, having NMFS process logbooks directly
would require back-and-forth with EM service providers to accurately
match logbooks with EM trips, select trips or hauls for review, compare
logbook and EM discard estimates, and investigate any discrepancies.
Vessel owners must submit logbooks directly to NMFS via a secure
transmission method to comply with confidentiality and data security
requirements, limiting the methods by which NMFS can receive logbooks.
At the November 2020 Groundfish Electronic Monitoring Program
Advisory Committee (GEMPAC) meeting, GEMPAC members proposed an
alternative procedure in which EM service providers would receive,
complete data entry, review logbook data, and submit results to NMFS.
NMFS and the Council determined it would be more efficient and cost
effective to have EM service providers receive both logbooks and EM
data directly from vessel owners for initial processing, entry, and
quality control, and simply report final data to NMFS. NMFS would also
receive logbooks, and use its debriefing procedures to carry out
quality control on the logbook data and to check for potential bias in
the video review. Having EM service providers process logbooks would
also allow individual vessel operators to develop optimal submission
methods for discard logbooks with their respective EM service
providers. NMFS supports the Council recommendation and therefore
proposes the change through this proposed rule.
6. Reporting Deadlines for EM Service Providers
Under current regulations at Sec. 660.603, EM service providers
are responsible for providing various feedback reports to vessel
operators, and summaries to NMFS. These reports include logbook data,
technical assistance, vessel operator feedback, EM summary data, and
compliance reports. Submission of this information by service providers
has been required in regulations as of June 2019, however, deadlines
for the submission of these reports were not originally specified in
regulation. Under this proposed rule, NMFS would establish submission
deadlines for these required EM service providers' reports. This
proposed change would allow NMFS to enforce timely submission of EM
data. The submission deadlines for each report are specified below.
A. Discard Logbooks
As described previously in this proposed rule, vessel operators
would submit discard logbooks directly to EM service providers for
processing. The Council recommended, and NMFS is proposing, that
service providers would submit the initial logbook data to NMFS within
two days of receipt from vessel operators. This deadline would help to
ensure timely debiting of discards from vessel IFQ accounts, and is
consistent with submission timelines used for EM EFPs, and WCGOP
observer data. Setting the deadline based on the receipt of initial,
rather than final, logbook data would ensure service providers are not
held responsible for late or incomplete submissions from vessel
operators. After initial logbook submission, the EM service provider
would work with the vessel operator to review data and, if necessary,
revise and submit updated logbook data. Under these proposed regulatory
changes, requiring concrete deadlines for these reports in the
regulations would ensure the timely submission of discard estimates
from logbook data, which is essential for discard accounting in the
Catch Share program, and to provide clear expectations for all
participants.
B. Reports of Technical Assistance
Under current regulations at Sec. 660.603(k), EM service providers
are required to submit reports to NMFS when technical assistance is
requested by vessels on EM trips. These reports of technical assistance
allow NMFS to monitor the performance of EM systems and field services,
and follow up should any potential enforcement issues arise. Under this
proposed rule, NMFS would require technical assistance reports to be
submitted within 24 hours of the EM service provider being notified by
the vessel operator. This change would be consistent with how these
notifications have occurred in the EM EFP.
C. Vessel Feedback Reports
Under current regulations at Sec. 660.603(m)(4), EM service
providers are required to provide feedback reports to vessel operators
and field services staff. Feedback is required on EM systems, crew
responsibilities, and any other information that would improve the
quality and effectiveness of data collection on the vessel. Through
this proposed rule, NMFS would require feedback to be submitted to
vessels within three weeks of the date EM data is received from the
vessel operator for processing by the service provider. Prospective
service providers, EFP vessel operators, and industry members have
provided feedback through the Council process that three weeks is a
reasonable timeline for the submission vessel feedback reports.
Specifically, a submission deadline of three weeks after the service
provider receives the hard drive from a vessel would ensure that EM
service providers are not held responsible for late submissions by
vessel operators. A shorter timeline may be more difficult for EM
service providers to meet if they receive several hard drives at once,
such as during busy times of the year. However, a longer timeline may
not provide timely feedback to vessel operators and updates to discard
data. Concrete and enforceable deadlines are necessary to ensure
service providers submit feedback reports in a timely manner, and
establish the data processing procedures to meet these deadlines. It is
critically important to provide timely feedback to vessel captains and
crew on catch handling, EM system care, and other aspects of operations
that affect data quality. Timely feedback to vessels would help to
ensure the quality of EM data, and reliability of the EM program in
meeting monitoring goals of the Catch Share program.
D. EM Summary Data and Compliance Reports
Current regulations at Sec. 660.603(m)(5) require service
providers to submit EM summary data and compliance reports to NMFS
following completion of video review. EM summary data includes discard
estimates, fishing activity information, and trip metadata. This
proposed rule would require EM summary data and compliance reports to
be submitted to NMFS three weeks from the date the vessel operator
submits EM data for processing. EM summary data and compliance reports
are used by NMFS to debit vessel accounts, monitor program and vessel
performance, and enforce requirements of the EM program. Trip metadata
is an
[[Page 11388]]
essential record of when and where EM data were created by the vessel,
submission time, date and location of review, and point of contacts for
reviewers. Trip metadata ensures fishing data can be accurately
corroborated with logbook data and is necessary for a complete chain of
custody and accountability between the vessel, service provider, and
NMFS. Catch discards would initially be debited from vessel accounts in
the IFQ database using logbook data, as described previously; discards
would largely be accounted for following logbook processing, and
audited using EM data. If there are large discrepancies between the
logbook and EM summary data, then a longer reporting timeline may
result in vessel account owners experiencing unexpected debits, or
being unable to ``close-out'' an account for a fishing trip until the
EM data are received. In the EM EFP, reporting timelines have ranged
from one to two weeks after receipt of the hard drive in 2015 to one to
two months during periods of higher fishing activity in 2019. Feedback
from prospective EM service providers is that three weeks after receipt
of the hard drive may be a reasonable timeline for completion of the
video review and submission of reports. NMFS recommended three weeks,
with support from the Council's GEMPAC and Groundfish Management Team,
as being a reasonable amount of time for service providers to complete
review and subsequently prepare summary data and compliance reports.
7. Retention of EM Data
This proposed rule would change the minimum length of time service
providers are required to retain EM data records. Under current
regulations, service providers must maintain all of a vessel's EM data,
reports, and other records specified in regulations at Sec. 660.603(m)
Data services for a period of not less than three years after the date
of landing for that trip. The rationale for originally adopting a
three-year minimum retention period for EM data is detailed in the June
2019 final rule (84 FR 31146; June 28, 2019). Since that final rule,
NMFS evaluated the feasibility and cost effectiveness of a shorter
retention period, and has developed a national policy on the minimum
time that EM data must be retained.
Under this proposed rule, EM service providers would be required to
maintain EM data for a period of not less than 12 months starting after
NMFS has officially completed end-of-year account reconciliation and
catch monitoring. This proposed regulatory change would align with the
12-month minimum data retention period in the NMFS Procedural Directive
04-115-03 (see ADDRESSES) for third-party minimum data retention in EM
programs for federally managed U.S. fisheries. Review of catch
monitoring data, including EM data, usually extends beyond the close of
the fishery at the end of the calendar year. Starting the clock for the
minimum retention period following end-of-the-year data reconciliation
would best meet the recommendations of the procedural directive.
8. Change in Definition of Conflict of Interest for EM Service
Providers
This proposed change would revise regulations at Sec. 660.603(h)
defining limitations on conflicts of interest for EM service providers
to exclude providing other types of technical and equipment services to
fishing companies. The definition in regulations currently excludes
``the provision of observer, catch monitor, EM or other biological
sampling services, in any Federal or state-managed fisheries'' from the
definition of a ``direct financial interest.'' After the final rule was
published, an EM service provider brought to the Council's attention
that many EM vendors provide a range of other services to fishing
companies, including vessel monitoring systems (VMS), automatic
identification system (AIS) transponders, telemetry (such as product
temperature monitoring for seafood safety), buoy and gear monitoring,
sonar systems, and mandatory safety services. Under the current
regulatory definition, such EM vendors would be ineligible to provide
EM services. The EM service provider noted that there is no evidence to
suggest that providing such technical services to fishing companies
creates any greater conflict of interest than providing biological
sampling services, and requested that the definition be revised.
Therefore, the Council recommended, and NMFS is proposing, revising the
definition of a conflict of interest at Sec. 660.603(h) to exclude
providing other types of technical and equipment services to fishing
companies.
9. Technical Corrections
In addition to the proposed regulatory changes already described,
the Council also recommended two clarifying corrections to language in
the EM program regulations. The first correction is technical and would
change the reference to ``a NMFS-accepted EM Service Plan'' under Sec.
660.603(a)(1) to correctly refer to paragraph Sec. 660.603(b)(1)(vii).
The second correction would change a reference to ``owner or operator''
to instead be ``authorized representative of the vessel'' in Sec.
660.603(n)(3), which is consistent with language in other regulations
in 50 CFR 660--Fisheries Off West Coast States. This correction would
clarify that a representative designated by the vessel owner, rather
than solely the vessel owner or operator, is allowed to transfer EM
data to service providers for review. NMFS supports these changes, and
is proposing these changes through this proposed rule.
III. Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Pacific Coast Groundfish FMP, Magnuson-Stevens Act,
and other applicable laws, subject to further consideration after
public comment. In making the final determination, NMFS will take into
account the complete record, including the data, views, and comments
received during the comment period.
Pursuant to Executive Order 13175, this proposed 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 proposed rule has been determined to be not significant for
the purposes of Executive Order 12866. This proposed rule does not
contain policies with Federalism or ``takings'' implications as those
terms are defined in Executive Orders 13132 and 12630, respectively.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA) (5
U.S.C. 603). The IRFA describes the economic impact this proposed rule,
if adopted, would have on small entities. A description of the action,
why it is being considered, and the legal basis for this action are
contained in the Background section of the preamble. A summary of the
IRFA follows. A copy of the IRFA is available from NMFS (see
ADDRESSES).
When an agency proposes regulations, the RFA requires the agency to
prepare and make available for public comment an IRFA that describes
the impact on small businesses, non-profit enterprises,
[[Page 11389]]
local governments, and other small entities. The IRFA is to aid the
agency in considering all reasonable regulatory alternatives that would
minimize the economic impact on affected small entities.
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.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
This proposed rule would impact mainly commercial harvesting
entities engaged in the groundfish limited entry trawl fishery.
Although this action proposes an EM program regulations for only two
trip types in the limited entry trawl fishery--non-whiting midwater
trawl, and bottom trawl--any limited entry trawl vessel may participate
in these components, provided they comply with its requirements, and
therefore may be eligible to use EM as applied to these two trawl gear
sectors. In addition, vessels deploying EM are likely to be a subset of
the overall trawl fleet, as some vessels would likely choose to
continue to use observers. However, as all trawl vessels could
potentially use EM in the future under the proposed action, this IRFA
analyzes impacts to the entire trawl fleet. The total number of vessels
that may be eligible to use EM is 175, the total number of limited
entry trawl permits in 2021, and includes those vessels that do use
bottom trawl and non-whiting midwater trawl gear, and those that do
not. Given these entities participate in the program, they are most
likely to be impacted by this rule in the short term. This number may
be an underestimate if additional vessels elect to participate in the
EM program in the future.
Federal Rules Which May Duplicate, Overlap, or Conflict With This
Proposed Rule
The proposed regulations do not create overlapping regulations with
any state regulations or other Federal laws.
A Description of any Significant Alternatives to the Proposed Rule That
Accomplish the Stated Objectives of Applicable Statutes and That
Minimize any Significant Economic Impact of the Proposed Rule on Small
Entities
The RFA requires Federal agencies to conduct a full RFA 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. This determination can be made at either the proposed or
final rule stage. If the agency can certify, it need not prepare an
IRFA, a final regulatory flexibility analysis (FRFA), or a Small Entity
Compliance Guide or undertake a subsequent periodic review of such
rules. The NMFS Guidelines for Economic Analysis of Fishery Management
Actions suggest two criteria to consider in determining the
significance of regulatory impacts, namely, disproportionality and
profitability. These criteria relate to the basic purpose of the RFA,
i.e., to consider the effect of regulations on small businesses and
other small entities, recognizing that regulations are frequently
unable to provide short-term cash reserves to finance operations
through several months or years until their positive effects start
paying off. If either criterion is met for a substantial number of
small entities, then the rule should not be certified for not having an
effect on small entities. These criterion raise two questions: Do the
regulations place a substantial number of small entities at a
significant competitive disadvantage to large entities? Do the
regulations significantly reduce profit for a substantial number of
small entities?
The preferred alternative for this rule will not have a significant
impact when comparing small versus large businesses in terms of
disproportionality and profitability given available information. These
regulations are likely to reduce fishing costs for both small and large
businesses. EM is an optional monitoring alternative to observers, and
may provide cost savings for some vessels. Economic effects of the
proposed action are expected to range from neutral to positive when
compared to the status quo. Nonetheless, NMFS has prepared this IRFA.
Through the rulemaking process associated with this action, NMFS is
requesting comments on this conclusion.
The economic impacts on small entities resulting from the proposed
action range from neutral to positive; these entities will have a
choice between hiring an observer, as is status quo, or using EM. The
choice is expected to be based on relative costs and operational
flexibility. Observer costs are currently $499 to $537 per seaday.
Under EM, NMFS estimates vessels in the bottom trawl fishery will spend
between $342/seaday (which include the cost of new equipment and
installation) or $285/seaday (without equipment costs). These estimates
are based on 412 seadays for 10 bottom trawl vessels participating in
EFPs from 2019-2020. Under EM, NMFS estimates per seaday costs for non-
whiting midwater trawl trips to range from $142/seaday (with equipment
costs), and $120/seaday (without equipment costs). These estimates are
based on 3,215 seadays for 30 midwater trawl vessels participating in
EFPs from 2091-2020, and averaged cost estimates from four prospective
EM service providers. These cost estimates are detailed in section 4.2
``Industry Costs'' of the IRFA included in the supporting documents for
this proposed rule. These costs are likely an overestimate and not an
accurate estimate of seaday costs for this gear type because it does
not incorporate revenue from seadays pursuing bottom trawl and whiting
activities that are also part of these vessels' portfolios. Cost of EM
service, including equipment installation and maintenance, along with
video review and data service is expected to vary by service provider.
Entities participating this fishery are not required to use EM, and
have the choice to use a human observer instead of EM. Furthermore, the
cost of EM is likely to decrease as technology used in EM systems
(cameras, sensors, and electronic storage devices) that meets current
specification necessary to meet monitoring requirements becomes cheaper
over time. Therefore, this proposed action would not impose new costs
on these
[[Page 11390]]
small entities, and will likely provide measurable cost savings over
time as individual vessels choose the most affordable at-sea monitoring
systems relative to their fishing operations.
The components of this rule have the potential to positively impact
all entities in the catch share sector of the fishery, regardless of
size. Therefore, the rule would impose effects on ``a substantial
number'' of small entities, however, these effects are expected to
range from neutral (if entities choose not to use the added flexibility
of the provisions in this rule) to positive. Data used to inform this
analysis was collected through EFPs and collaboration with industry and
non-government organizations from 2012 to present.
There are no relevant Federal rules that may duplicate, overlap, or
conflict with this action nor are there are no significant alternative
to the proposed rule that will accomplish the stated objectives and
that minimize any significant economic impact of the proposed rule on
small entities. As fishermen are given a choice between two alternative
monitoring systems (observers vs EM), this rule is likely to have
neutral to positive effects on small entities.
These regulations are likely to reduce fishing costs for both small
and large businesses. Through this proposed rule, NMFS is requesting
comments on this conclusion. The proposed action and alternatives are
described in detail in the Council's regulatory amendment and the
accompanying regulatory impact review (RIR)/IRFA (see ADDRESSES).
Description of the Proposed Reporting, Record-Keeping, and Other
Compliance Requirements of This Proposed Rule Under the Paperwork
Reduction Act (PRA)
The proposed action contains collection-of-information requirements
that have been previously approved under OMB control number 0648-0785,
West Coast Region Groundfish Trawl Fishery Electronic Monitoring
Program, as per the PRA requirements. The requirements include vessel
owner EM applications, renewals, and reports, EM service providers
applications, renewals and reports, as well as vessel operator log-
book, and hard drive submission. This proposed rule would revise
collection-of-information requirements to include submission of
information for the formation of self-enforcing cooperative agreements.
The proposed action contains changes to collection-of-information
requirements that are subject to review and approval by the Office of
Management and Budget (OMB) as per the PRA requirements. NMFS has
submitted these requirements to OMB for approval under OMB control
number 0648-0785 West Coast Region Groundfish Trawl Fishery Electronic
Monitoring Program. This proposed rule would revise collection-of-
information requirements to include submission of information for the
formation of self-enforcing cooperative agreements. Collection of
information for self-enforcing agreements is not mandatory, as self-
enforcing agreements are an optional provision of the EM program under
collection 0648-0785. Some vessel owners may choose to apply for a
group EM authorization under a self-enforcing agreement in lieu of
individual vessel authorizations. The self-enforcing agreement would be
submitted with the initial applications for vessels in the group, and
requires approval prior to accepting final applications from the group.
One self-enforcing agreement would be completed and submitted by a
designated representative for each group of vessel owners applying
under a group authorization. NMFS expects no more than three such self-
enforcing group agreements for the first three years of this
collection. Each self-enforcing agreement is expected to take
approximately 3 hours to complete. The total annualized time burden to
prepare self-enforcing agreements would be 3 hours (3 hours x 3
agreements[hairsp]/[hairsp]3 years). The burden cost of one copy of the
self-enforcing agreement is estimated at $3.00 ($0.10[hairsp]/
[hairsp]page x 30 pages). A designated representative, or manager of
the self-enforcing cooperative would hold at least one copy. To be
deemed eligible to operate under the agreement, vessel owners and
operators would be required to have executed a copy of the agreement
for an adherence agreement under which they agree to be bound. At most,
10 vessel owners are expected to participate in any one self-enforcing
agreement, each would be required to have a copy of the agreement, plus
one original copy held by the cooperative manager, is expected to
result in a total annualized burden of $33.00 ($3.00 x 11).
This proposed rule includes a minor revision to declaration
requirements for groundfish vessels using EM under West Coast Region
Vessel Monitoring Requirement in the Pacific Coast Groundfish Fishery
(OMB Control Number 0648-0573). Vessels in the Pacific Coast Groundfish
Fishery are required to declare the gear type and monitoring they will
use on a given trip. Under this proposed rule, vessels would be able to
declare ``electronic monitoring'' or ``observers'' as possible
monitoring types on trips with bottom trawl and non-whiting midwater
trawl gear. The change would add additional potential answers to an
existing declaration questionnaire, which does not affect the number of
entities required to comply with the declaration requirement (OMB
Control Number 0648-0573). Therefore, the proposed rule does not
increase the time or cost burden associated with this requirement.
Similarly, this proposed rule would adjust the requirement for EM
vessels to notify the West Coast Groundfish Observer Program before
each trip in place of the existing notification to an individual
vessel's observer provider when using a catch share observer. This
change would not be expected to increase the time or cost burden
associated with the existing notification requirements approved under
the collection Observer Programs' Information That Can be Gathered Only
Through Questions (OMB Control Number 0648-0593).
The requirement for first receivers to report protected and
prohibited species landings was previously approved under the
collection Northwest Region Groundfish Trawl Fishery Monitoring and
Catch Accounting Program (OMB Control Number 0648-0619). Under the
proposed rule, first receivers would continue to report protected and
prohibited species landings, but would also report landings of catch
from trips monitored using EM under ``maximized'' and ``optimized''
retention rules with bottom trawl and non-whiting midwater trawl gear.
The change would add additional potential answers to an existing
questionnaire, and is not be expected to change the time or cost burden
or number of entities associated with this requirement.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Submit comments on
these or any other aspects of the collection of information at
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>.
For more information, these collections, and all currently approved
NOAA collections can be viewed at
[[Page 11391]]
<a href="https://www.reginfo.gov/public/do/PRASearch#">https://www.reginfo.gov/public/do/PRASearch#</a> by entering the related
OMB control number.
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, and Indians.
Dated: February 14, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660 is
proposed to be amended as follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
1. 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. 660.13 revise paragraph (d)(4)(iv)(A) to read as follows:
Sec. 660.13 Recordkeeping and reporting.
* * * * *
(d) * * *
(4) * * *
(iv) * * *
(A) * * *
(1) Limited entry fixed gear, not including shorebased IFQ,
(2) Limited entry groundfish non-trawl, shorebased IFQ, observer,
(3) Limited entry groundfish non-trawl, shorebased IFQ, electronic
monitoring,
(4) Limited entry midwater trawl, non-whiting shorebased IFQ,
observer,
(5) Limited entry midwater trawl, non-whiting shorebased IFQ,
electronic monitoring,
(6) Limited entry midwater trawl, Pacific whiting shorebased IFQ,
observer,
(7) Limited entry midwater trawl, Pacific whiting shorebased IFQ,
electronic monitoring,
(8) Limited entry midwater trawl, Pacific whiting catcher/processor
sector,
(9) Limited entry midwater trawl, Pacific whiting mothership sector
(catcher vessel or mothership), observer,
(10) Limited entry midwater trawl, Pacific whiting mothership
sector (catcher vessel), electronic monitoring,
(11) Limited entry bottom trawl, shorebased IFQ, not including
demersal trawl or selective flatfish trawl,
(12) Limited entry bottom trawl, shorebased IFQ, not including
demersal trawl or selective flatfish trawl, electronic monitoring,
(13) Limited entry demersal trawl, shorebased IFQ, observer
(14) Limited entry demersal trawl, shorebased IFQ, electronic
monitoring,
(15) Limited entry selective flatfish trawl, shorebased IFQ,
observer,
(16) Limited entry selective flatfish trawl, shorebased IFQ,
electronic monitoring,
(17) Non-groundfish trawl gear for pink shrimp,
(18) Non-groundfish trawl gear for ridgeback prawn,
(19) Non-groundfish trawl gear for California halibut,
(20) Non-groundfish trawl gear for sea cucumber,
(21) Open access longline gear for groundfish,
(22) Open access Pacific halibut longline gear,
(23) Open access groundfish trap or pot gear,
(24) Open access Dungeness crab trap or pot gear,
(25) Open access prawn trap or pot gear,
(26) Open access sheephead trap or pot gear,
(27) Open access line gear for groundfish,
(28) Open access HMS line gear,
(29) Open access salmon troll gear,
(30) Open access California Halibut line gear,
(31) Open access Coastal Pelagic Species net gear,
(32) Other gear,
(33) Tribal trawl,
(34) Open access California gillnet complex gear, or
(35) Gear testing.
* * * * *
0
3. In Sec. 660.601, add the definition of ``Prohibited species'' in
alphabetical order to read as follows:
Sec. 660.601 Definitions.
* * * * *
Prohibited species means those species and species groups defined
at Sec. 660.11; Dungeness crab caught south of Point Reyes,
California; fish in excess of state or Federal limits; fish below a
state or Federal minimum size; and species for which the vessel or
vessel representative does not have a state or Federal permit.
* * * * *
0
4. In Sec. 660.603, revise paragraphs (a)(1), (h)(1) introductory
text, (k)(5), (m) introductory text, (m)(1), (m)(3), (m)(4)
introductory text, (m)(5), (m)(6) and (n)(3) to read as follows:
Sec. 660.603 Electronic monitoring provider permits and
responsibilities.
(a) * * *
(1) Operate under a NMFS-accepted EM Service Plan (see paragraph
(b)(1)(vii) of this section).
* * * * *
(h) * * *
(1) EM service providers and their employees must not have a direct
financial interest, other than the provision of observer, catch
monitor, EM, other biological sampling services, VMS, AIS transponders,
telemetry (such as product temperature monitoring for seafood safety),
buoy and gear monitoring, sonar systems, mandatory safety services
(i.e., GMDSS), or other technical or equipment services, in any Federal
or state managed fisheries, including but not limited to:
* * * * *
(k) * * *
(5) The EM service provider must submit to NMFS reports of requests
for technical assistance from vessels, including when the call or visit
was made, the nature of the issue, and how it was resolved. Reports
must be submitted to NMFS within 24 hours of the EM service provider
being notified of the request for technical assistance.
* * * * *
(m) Data services. For vessels with which it has a contract (see
Sec. 660.604(k)), the EM service provider must provide and manage EM
data and logbook processing, reporting, and record retention services,
as described below and according to a NMFS-approved EM Service Plan,
which is required under paragraph (b)(1)(vii) of this section, and as
described in the EM Program Manual or other written and oral
instructions provided by the EM Program, and such that the EM Program
achieves its purpose as defined at Sec. 660.600(b).
(1) The EM service provider must process vessels' EM data and
logbooks according to a prescribed coverage level or sampling scheme,
as specified by NMFS in consultation with the Council, and determine an
estimate of discards for each trip using standardized estimation
methods specified by NMFS. NMFS will maintain manuals for EM and
logbook data processing protocols on its website.
* * * * *
(3) The EM service provider must track hard drives and EM datasets
throughout their cycles, including documenting any access and
modifications. If end-to-end encryption is not used to protect EM data,
EM data must be removed from hard drives or
[[Page 11392]]
other mediums before returning them to the field.
(4) The EM service provider must communicate with vessel operators
and NMFS to coordinate data service needs, resolve specific program
issues, and provide feedback on program operations. No later than three
weeks from the date of receipt of EM data for processing from the
vessel operator, the EM service provider must provide feedback to
vessel representatives, field services staff, and NMFS regarding:
* * * * *
(5) Submission of data and reports. On behalf of vessels with which
it has a contract (see Sec. 660.604(k)), the EM service provider must
submit to NMFS logbook data, EM summary reports, including discard
estimates, fishing activity information, and meta data (e.g., image
quality, reviewer name), and incident reports of compliance issues
according to a NMFS-accepted EM Service Plan, which is required under
paragraph (b)(1)(vii) of this section, and as described in the EM
Program Manual or other written and oral instructions provided by the
EM Program, such that the EM program achieves its purpose as defined at
Sec. 660.600(b). Logbook data must be submitted to NMFS within two
business days of receipt from the vessel operator. EM summary reports
must be submitted within three weeks of the date the EM data was
received by the EM service provider from the vessel operator. If NMFS
determines that the information does not meet these standards, NMFS may
require the EM service provider to correct and resubmit the datasets
and reports.
(6) Retention of records. Following an EM trip, the EM service
provider must maintain all of a vessel's EM data and other records
specified in this section, or used in the preparation of records or
reports specified in this section or corrections to these reports. The
EM service provider must maintain EM data for a period of not less than
12 months after NMFS has completed its determination of the total base
year IFQ catch for all vessels for end-of-year account reconciliation
(i.e., base year is the year in which the EM trip was taken). NMFS will
issue a public notice when end-of-the-year account reconciliation has
been completed, on or about March 1 of each year. The EM service
provider must maintain summary EM data and other records for a period
of not less than three years after the date of landing for that trip.
EM data and other records must be stored such that the integrity and
security of the records is maintained for the duration of the retention
period. The EM service provider must produce EM data and other records
immediately upon request by NMFS or an authorized officer.
(n) * * *
(3) Must not release a vessel's EM data and other records specified
in this section (including documents containing such data and
observations or summaries thereof) except to NMFS and authorized
officers as provided in paragraph (m)(6) of this section, or as
authorized by an authorized representative of the vessel.
0
5. In Sec. 660.604,
0
a. Revise paragraphs (e) introductory text and (e)(1);
0
b. Remove paragraph (e)(5);
0
c. Revise paragraphs (f), (i), (m), and (n);
0
d. Add paragraphs (p)(3) and (4);
0
e. Revise paragraphs (q), (s)(2), (s)(3)(i) through (ii); and
0
f. Remove and reserve paragraph (s)(3)(iii).
The revisions and additions read as follows:
Sec. 660.604 Vessel and first receiver responsibilities.
* * * * *
(e) Electronic Monitoring Authorization. To obtain an EM
Authorization, a vessel owner must submit an initial application to the
NMFS West Coast Region Fisheries Permit Office, and then a final
application that includes an EM system certification and a vessel
monitoring plan (VMP). NMFS will only review complete applications.
NMFS will issue a public notice at least 90 calendar days prior to when
it will begin accepting applications for EM Authorizations for the
first year of the Program. Once NMFS begins accepting applications,
vessel owners that want to have their EM Authorizations effective for
January 1 of the following calendar year must submit their complete
application to NMFS by October 1 of the preceding calendar year. Vessel
owners that want to have their EM Authorizations effective for May 15
must submit their complete application to NMFS by February 15 of the
same year. In lieu of individual EM Authorizations, a group of eligible
vessel owners participating in the shorebased IFQ sector may obtain a
group EM Authorization through a self-enforcing agreement. This
agreement allows a group of eligible vessels to encourage compliance
with the requirements of this section through a private, contractual
arrangement. To be considered for a group EM Authorization, a group of
vessel owners must submit a completed application package to NMFS for
review and approval. As part of a group EM Authorization application,
participating vessel owners must agree to conduct fishing operations
according to the self-enforcement agreement. For a vessel to be deemed
eligible to operate under the agreement, its owner(s) and its
operator(s) must have executed a copy of the agreement or an adherence
agreement under which they agree to be bound by the agreement's terms.
The existence of a self-enforcing agreement among EM vessels does not
foreclose the possibility of independent enforcement action by NMFS OLE
or authorized officers.
(1) Initial application. To be considered for an EM Authorization,
the vessel owner must:
(i) Submit a completed application form provided by NMFS, signed
and dated by an authorized representative of the vessel;
(ii) Meet the following eligibility criteria:
(A) The applicant owns the vessel proposed to be used;
(B) The vessel has a valid Pacific Coast Groundfish limited entry,
trawl-endorsed permit registered to it;
(C) The vessel is participating in the Pacific whiting IFQ fishery,
mothership sector, or the Shorebased IFQ sector;
(D) The vessel is able to accommodate the EM system, including
providing sufficient uninterrupted electrical power, suitable camera
mounts, adequate lighting, and fittings for hydraulic lines to enable
connection of a pressure transducer;
(E) The vessel owner and operator are willing and able to comply
with all applicable requirements of this section and to operate under a
NMFS-accepted VMP; and
(F) The vessel owner and operator are willing and able to comply
with the terms and conditions of a self-enforcing agreement that was
submitted as part of a group authorization application, if applicable.
(iii) If applying for a group EM Authorization, submit a complete
proposed self-enforcing agreement that describes how the group's
operations will be conducted to meet the requirements of this section.
NMFS will develop EM Program Guidelines containing best practices and
templates and make them available on NMFS's website to assist vessel
owners in developing a self-enforcing agreement. The self-enforcing
agreement must include descriptions of the following:
(A) A list of all participating vessels, owners, operators, and
other parties;
(B) The name and contact information of a designated representative
who will be responsible for ensuring that each vessel is complying with
the terms and
[[Page 11393]]
conditions of the agreement and the requirements of this section, and
who will promptly inform the appropriate parties and NMFS if any vessel
fails to comply;
(C) Eligibility criteria for participating vessels, owners, and
operators;
(D) The roles and responsibilities of participating vessels,
owners, operators, the designated representative, and any other parties
to the agreement;
(E) Procedures for communication between participating vessels,
owners, operators, the designated representative, and any other parties
to the agreement, NMFS or its designated agent, and EM service
providers, for the execution of the agreement and the requirements of
this section;
(F) Performance standards or requirements for equipment, if
applicable;
(G) Reporting requirements, if applicable;
(H) Time and area restrictions, if applicable;
(I) Provisions for the use and protection of confidential data
necessary for execution of the agreement;
(J) Provisions to encourage or enforce the compliance of members
with the agreement and the requirements of this section;
(K) Procedures for addressing the non-compliance of members with
the agreement and the requirements of this section, including
procedures for restricting or terminating vessel's participation in the
agreement;
(L) Procedures for notifying NMFS when a participating vessel or
its owner(s) or operator(s) are not complying with the terms of the
agreement or the requirements of this section;
(M) Procedures for participating vessels, owners, operators, the
designated representative, or other parties to the agreement, to exit
the agreement;
(N) Any other provisions that the applicants deem necessary for the
execution of the agreement; and
(O) Procedures for the designated representative to submit an
annual report to the Council prior to applying to renew a group EM
authorization containing information about the group's performance from
the previous year, including a description of any actions taken by the
self-enforcing group in response to the non-compliance of members with
the agreement.
* * * * *
(f) Changes to a NMFS-accepted VMP or NMFS-approved self-enforcing
agreement. A vessel owner may make changes to a NMFS-accepted VMP by
submitting a revised plan or plan addendum to NMFS in writing. A group
may make changes to an approved self-enforcing agreement by submitting
a revised agreement or agreement addendum to NMFS in writing. NMFS will
review and accept the change if it meets all the requirements of this
section. A VMP or self-enforcing agreement addendum must contain:
(1) The date and the name and signature of the vessel owner, or
designated representative for a self-enforcing agreement;
(2) Address, telephone number, fax number and email address of the
person submitting the revised plan or addendum; and
(3) A complete description of the proposed change.
* * * * *
(i) Renewing an EM Authorization. To maintain a valid EM
Authorization, vessel owners must renew annually prior to the permit
expiration date. NMFS will mail EM Authorization renewal forms to
existing EM Authorization holders each year on or about: September 1
for shorebased IFQ vessels, and January 1 for Pacific whiting IFQ and
MS/CV vessels. Vessel owners who want to have their Authorizations
effective for January 1 of the following calendar year must submit
their complete renewal form to NMFS by October 15. Vessel owners who
want to have their EM Authorizations effective for May 15 of the
following calendar year must submit their complete renewal form to NMFS
by February 15.
* * * * *
(m) Declaration reports. The operator of a vessel with a valid EM
Authorization must make a declaration report to NMFS OLE prior to
leaving port following the process described at Sec. 660.13(d)(4). A
declaration report will be valid until another declaration report
revising the existing gear or monitoring declaration is received by
NMFS OLE.
(n) Observer requirements. The operator of a vessel with a valid EM
Authorization must provide advanced notice to NMFS, at least 48 hours
prior to departing port, of the vessel operator's intent to take a trip
under EM, including: Vessel name, permit number; contact name and
telephone number for coordination of observer deployment; date, time,
and port of departure; and the vessel's trip plan, including area to be
fished, gear type to be used, and whether the vessel will use maximized
or optimized retention rules for the trip as defined at paragraphs
(p)(3) and (4) of this section. NMFS may waive this requirement for
vessels declared into the Pacific whiting IFQ fishery or mothership
sector with prior notice. If NMFS notifies the vessel owner, operator,
or manager of any requirement to carry an observer, the vessel may not
be used to fish for groundfish without carrying an observer. The vessel
operator must comply with the following requirements on a trip that the
vessel owner, operator, or manager has been notified is required to
carry an observer.
* * * * *
(p) * * *
(3) Maximized retention bottom trawl and non-whiting midwater trawl
trips. A vessel operator on a declared maximized retention trip using
bottom trawl gear, or midwater trawl gear in which Pacific whiting
constitutes less than 50 percent of the catch by weight at landing, the
vessel must not sort catch at-sea and must retain all catch until
landing, with exceptions listed below in paragraphs (p)(3)(i) through
(v) of this section. All discards must be discarded following
instructions in the VMP per paragraph (e)(iii) of this section. All
discards, regardless of the source, must be reported in the bottom
trawl logbook, including the species (where possible), estimated
weight, and reason for discard. The vessel operator is responsible for
ensuring that all catch is handled in a manner that enables the EM
system to record it.
(i) Minor operational discards are permitted. Minor operational
discards include mutilated fish; fish vented from an overfull codend;
and fish removed from the deck and fishing gear during cleaning. Minor
operational discards do not include discards that result when more
catch is taken than is necessary to fill the hold or catch from a tow
that is not delivered.
(ii) Large individual marine organisms (i.e., all marine mammals,
sea turtles, and non-ESA-listed seabirds, and fish species longer than
6 ft (1.8 m) in length) may be discarded. For any ESA-listed seabirds
that are brought on board, vessel operators must follow any relevant
instructions for handling and disposition under Sec. 660.21(c)(1)(v).
(iii) Crabs, starfish, coral, sponges, and other invertebrates may
be discarded.
(iv) Trash, mud, rocks, and other inorganic debris may be
discarded.
(v) A discard that is the result of an event that is beyond the
control of the vessel operator or crew, such as a safety issue or
mechanical failure, is permitted.
(4) Optimized retention bottom trawl and non-whiting midwater trawl
trips. On a declared optimized retention trip
[[Page 11394]]
using bottom trawl gear, or midwater trawl gear in which Pacific
whiting constitutes less than 50 percent of the catch by weight at
landing, the vessel owner and operator are responsible for the
following:
(i) The vessel must retain IFQ species (as defined at Sec.
660.140(c)), except for Arrowtooth flounder, English sole, Dover sole,
deep sea sole, Pacific sanddab, Pacific whiting, lingcod and starry
flounder; must retain salmon and eulachon; and must retain the
following non-IFQ species greenland turbot; slender sole; hybrid sole;
c-o sole; bigmouth sole; fantail sole; hornyhead turbot; spotted
turbot; California halibut; northern rockfish; black rockfish; blue
rockfish; shortbelly rockfish; olive rockfish; Puget Sound rockfish;
semaphore rockfish; walleye pollock; slender codling; Pacific tom cod;
with exceptions listed in paragraphs (p)(4)(i)(A) and (B) of this
section.
(A) Mutilated and depredated fish may be discarded.
(B) A discard that is the result of an event that is beyond the
control of the vessel operator or crew, such as a safety issue or
mechanical failure, is permitted.
(ii) The vessel must discard Pacific halibut, green sturgeon,
California halibut (except as allowed by state regulations), and
nearshore groundfish species below state commercial minimum size
limits, following instructions in the NMFS-accepted VMP.
(iii) Incidentally caught marine mammals, non-ESA-listed seabirds,
sea turtles, other ESA-listed fish, and Dungeness crab caught seaward
of Washington or Oregon or south of Point Reyes, California, as
described at Sec. 660.11 Prohibited species, must be discarded
following instructions in the NMFS-accepted VMP per paragraph (e)(iii)
of this section. For any ESA-listed seabirds that are brought on board,
vessel operators must follow any relevant instructions for handling and
disposition under Sec. 660.21(c)(1)(v).
(iv) Crabs, starfish, coral, sponges, and other invertebrates may
be discarded.
(v) Trash, mud, rocks, and other inorganic debris may be discarded.
(vi) All discards must be discarded following instructions in the
VMP per paragraph (e)(iii) of this section. All discards, regardless of
the source, must be reported in the bottom trawl logbook, including the
species (where possible), estimated weight, and reason for discard. The
vessel operator is responsible for ensuring that all catch is handled
in a manner that enables the EM system to record it.
(q) Changes to retention requirements. NMFS may specify alternate
retention requirements in a NMFS-accepted VMP through the process
described in paragraph (f) of this section, after consultation with the
Council and issuance of a public notice notifying the public of the
changes. Alternate retention requirements must be sufficient to provide
NMFS with the best available information to determine individual
accountability for catch, including discards, of IFQ species and
compliance with requirements of the Shorebased IFQ Program (Sec.
660.140) and MS Coop Program (Sec. 660.150).
* * * * *
(s) * * *
(2) Submission of logbooks. Vessel operators must submit copies of
the Federal discard logbook and state retained logbook to the vessel
owner's contracted EM service provider and to NMFS or its agent within
24 hours of the end of each EM trip.
(3) * * *
(i) Shorebased IFQ vessels. EM data from an EM trip must be
submitted within 72 hours after the beginning of the offload (and no
more than 10 days after the end of the first trip on the hard drive).
(ii) Mothership catcher vessels. EM data from an EM trip must be
submitted within 72 hours of the catcher vessel's return to port.
* * * * *
[FR Doc. 2022-03516 Filed 2-28-22; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.