Rule2022-21322
Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Electronic Monitoring Program Regulations for Bottom Trawl and Non-Whiting Midwater Trawl Vessels in the Pacific Coast Groundfish Trawl Catch Share Program
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
October 3, 2022
Effective
November 2, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This rule will 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. This action will 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. This action is intended to increase operational flexibility and reduce monitoring costs for vessels in the groundfish trawl fishery. This rule also revises some language in 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 190 (Monday, October 3, 2022)</title>
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[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59705-59716]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21322]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 220926-0200]
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 in the Pacific Coast Groundfish
Trawl Catch Share Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This rule will 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. This action will 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. This action
is intended to increase operational flexibility and reduce monitoring
costs for vessels in the groundfish trawl fishery. This rule also
revises some language in existing regulations for EM vessels and EM
service providers to clarify and streamline EM program requirements.
DATES: Effective November 2, 2022.
Electronic Access
This final 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#c3a0acafaaadedb0a2bab1a683adaca2a2eda4acb5"><span class="__cf_email__" data-cfemail="1f7c70737671316c7e666d7a5f71707e7e31787069">[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.
NMFS published a final rule on June 28, 2019, (84 FR 31146) that
established the overall EM program requirements, including an
application process and responsibilities for participating vessel
owners and operators and EM service providers, and requirements for
first receivers receiving catch from EM trips. These rules also
detailed gear-specific protocols for the use of EM on whiting and fixed
gear trips. As discussed in these rules, the Council originally
considered including regulations for all gear types used in the Catch
Share Program (whiting, non-whiting midwater, bottom trawl, and fixed
gear)
[[Page 59706]]
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.
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 regulatory
changes are included under this rule, and are described in the
following sections of this preamble.
At the Council's recommendation, NMFS published an interim final
rule on October 6, 2021 (86 FR 55525) to delay the start date for the
EM program 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.
NMFS approved the recommendation, to strengthen Council and industry
support for the EM program, increase participation when the program is
implemented, and to provide additional time for industry and
prospective service providers to prepare for implementation. The full
rationale for the Council's recommendation to delay EM program
implementation is detailed in the March 1, 2022 proposed rule for this
action (87 FR 11382), and is not repeated here.
Consistent with the October 6, 2021 interim final rule (86 FR
55525), the EM program for the trip types included in this final rule
will not be effective before January 1, 2024. A more extensive
discussion of the development of these regulatory changes and the
overall EM program is available in the March 1, 2022 proposed rule for
this action (87 FR 11382) and is not repeated here.
II. Final Measures
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
will 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 will 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. Vessel owners intending to use EM
for bottom trawl or non-whiting midwater trawl trips are 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 will be
submitted to NMFS for review as part of the vessel's application for
authorization to use EM. The vessel operator is required to record
discards of IFQ species on a logbook, which will initially be used to
debit quota pounds from the vessel's account. The EM video data will
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 will 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, which are described in the following
sections of this preamble.
Catch Retention
Under this rule, two different discard and catch retention rules
can be used with EM on bottom trawl and non-whiting midwater trawl
trips: ``maximized'' or ``optimized'' retention. Vessel operators will
be able choose the preferred retention rule under which they 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 will declare whether they intend to use maximized or
optimized retention rules for EM trips. Declaration reports are
described in additional detail in following sections of this preamble.
Under ``maximized'' retention requirements, vessels on bottom trawl
and non-whiting midwater trawl trips do not sort or discard catch at
sea, and are required to retain all catch until landing, with
exceptions for prohibited and protected species.
Under ``optimized'' retention, EM vessel operators are allowed to
discard species that can be differentiated on camera, and must 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 will be listed in Sec. 660.604(p).
Vessel operators using EM on bottom trawl and non-whiting midwater
trawl trips are responsible for ensuring all discarded catch is
discarded following catch handling instructions in the NMFS-accepted
VMP. This rule will 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 of the changes.
Both retention rules have trade-offs, depending on the target
species and gear type used. ``Maximized'' retention simplifies catch
handling at sea, and video review, as only prohibited and protected
species discards would need to be differentiated on camera.
``Optimized'' retention allows vessel operators to discard catch that
can be differentiated on camera, and reduces the burden of having to
store and later dispose of unmarketable or otherwise undesirable fish.
The Council determined that allowing vessel operators to choose the
retention rules that best fit the operation of their gear and vessel,
as well as the characteristics of the target species, would provide
operational flexibility while ensuring the reliability of EM video data
for discard accounting.
This rule also expands 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 regulatory change to ensure state-managed species are 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-
[[Page 59707]]
managed species to eliminate the need for further revisions should
other state-managed species be added to or removed from the lists.
EM Declaration and Switching Between EM and Observers
Under the regulations being finalized through this rule, vessels on
bottom trawl and non-whiting midwater trawl trips are allowed to switch
between using EM systems on some trips and human observers on others.
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 through phone call to the NMFS Office of
Law Enforcement (OLE), and are binding for the duration of the fishing
trip for which they have been made. Though catcher vessels
participating in the Pacific whiting fisheries may change their
declarations between the mothership and shorebased sectors while on the
same trip, monitoring type declarations cannot be changed while at sea.
This rule modifies 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 existing 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 the regulations finalized through this 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 intended 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.
Under the regulations finalized in this rule, there is 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 regulations for
``maximized'' and ``optimized'' retention, the operator is also
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 will 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 these final 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 are required to agree to conduct fishing operations according to
the terms of the self-enforcing agreement. NMFS will still bear the
ultimate responsibility for enforcing the EM regulations.
The self-enforcing agreement must 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 final regulations, NMFS has 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.
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 these final
regulations, a fishing collective that has operated under a cooperative
self-enforcing agreement to test EM under EFPs will be able to apply
for authorization to continue self-enforced compliance with the EM
program. This rule allows additional groups of shorebased IFQ vessels
applying for EM authorization to enter in the self-enforcing
cooperative agreements. These agreements are intended to help 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 (84 FR 31146; June 28,
2019)
[[Page 59708]]
establishing responsibility requirements for vessel operators using EM
systems, and for EM service providers. These responsibilities are
detailed in the 2019 final rule, and include declaration of EM systems
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 regulatory change increases the hard drive submission deadline
to 72 hours from the beginning of the offload following a fishing trip
in which EM was used. Under 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 aligns it
with the hard drive submission requirements used under EM EFPs. This
change provides 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 regulatory change requires the scrubbing of EM hard drives
only if end-to-end encryption is not used. 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 requires their replacement more frequently,
increasing operational costs for EM users. NMFS and the Council
determined that the use of end-to-end encryption will 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 will 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
This regulatory change removes the limit on switching between
observers and EM for whiting trips. Regulations at Sec. 660.604(m)
previously restricted 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, 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 2019 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, vessel 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 NMFS is implementing the
Council's recommendation to eliminate the limit on switching between EM
and observers for whiting trips under this final rule. This change will
align the flexibility in moving between EM and observer coverage across
all trip types (bottom trawl, whiting midwater, non-whiting midwater,
and fixed gear).
4. Mothership/Catcher Vessel (MS/CV) Endorsement
EM regulations at Sec. 660.604(e)(1)(iii) previously required 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 with EM to
only those vessels with an 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 rule removes
the 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 regulatory change requires 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 will receive and
process discard logbooks by entering data, performing quality assurance
and control, and subsequently submit logbook data to NMFS for review.
Service providers are required to submit initial logbook data to NMFS
within two business days of receipt from vessel operators.
EM regulations at Sec. 660.604(s) previously required vessel
operators to submit discard logbooks directly to NMFS or its agent for
processing. Under this model, NMFS would check logbooks for accuracy
and issues and enter data, 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 previous 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 were required to 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.
[[Page 59709]]
NMFS and the Council determined it is 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 will 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 also
allows individual vessel operators to develop optimal submission
methods for discard logbooks with their respective EM service
providers. NMFS supports the Council's recommendation and is therefore
implementing the change through this final rule.
6. Reporting Deadlines for EM Service Providers
Under 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 final rule, NMFS would establish submission
deadlines for these required EM service providers' reports. This change
will 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 preamble, vessel operators would
submit discard logbooks directly to EM service providers for
processing. Under this final rule, service providers will submit
initial logbook data to NMFS within two days of receipt from vessel
operators. This deadline will 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 will ensure service providers are not held responsible for late or
incomplete submissions from vessel operators. After initial logbook
submission, the EM service provider will work with the vessel operator
to review data and, if necessary, revise and submit updated logbook
data. Under these regulatory changes, requiring concrete deadlines for
these reports in the regulations will 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
final rule, NMFS will require technical assistance reports to be
submitted within 24 hours of the EM service provider being notified by
the vessel operator. This change is consistent with how these
notifications have occurred in the EM EFPs.
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 final rule, NMFS is requiring 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 will ensure that EM service providers are
not held responsible for late submissions by vessel operators. 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 will 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 final
rule requires 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 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 will 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. The Council recommended three weeks, with support from NMFS,
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 rule will change the minimum length of time service providers
are required to retain EM data records. Under previous regulations,
service providers were required to 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 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, the Council
recommended NMFS explore a shorter data retention period, to reduce the
burden on industry to pay for data storage by third party service
providers, while also meeting minimum federal
[[Page 59710]]
record retention requirements. NMFS evaluated the feasibility and cost
effectiveness of a shorter retention period, and developed a national
policy on the minimum time that EM data must be retained. The Council
supported NMFS evaluation and recommended a 12 month retention data
retention period starting at the conclusion of end-of-the-year data
reconciliation. This regulatory change will 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
Under this final rule, EM service providers will 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. 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 will best meet the
recommendations of the procedural directive.
8. Change in Definition of Conflict of Interest for EM Service
Providers
This proposed change will 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 previously excluded
``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 June 2019
final rule (84 FR 31146; June 28, 2019) 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 previous regulatory definition, such EM
vendors were 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 implementing, a revised 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 regulatory changes already described, the
Council also recommended two clarifying corrections to language in the
EM program regulations. The first correction is technical and changes
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 changes 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
clarifies 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 implementing them through this final rule.
III. Comments and Responses
NMFS issued a proposed rule on March 1, 2022 (87 FR 11382). The
comment period on the proposed rule closed March 31, 2022. No comments
were received during the public comment period.
IV. Changes From the Proposed Rule
Proposed regulations intended to clarify logbook submission
requirements within the EM program were adjusted to more clearly
distinguish between the types of logbooks required for submission
following trips with EM. The proposed regulations at Sec.
660.604(p)(3), and (p)(4) as originally written in the proposed rule,
used the term ``bottom trawl logbooks.'' This term is not defined, and
is not used elsewhere in regulations, so in this final rule, the
language is adjusted to instead use the term ``discard logbooks,'' as
defined in existing EM regulations at Sec. 660.604(s)(1).
Additionally, the proposed regulations at Sec. 660.604(s)(2), as
originally written in the proposed rule, used the terms ``federal
discard logbooks, and state retained logbooks''. This final rule
revises those terms to only refer to ``discard logbooks'' and ``trawl
logbooks'' as defined at Sec. 660.13(a)(1), to maintain clarity and
avoid confusion. For these reasons this regulatory language is adjusted
in this final rule.
Finally, this final rule includes a correction to an error in
proposed regulations at Sec. 660.13(d)(4)(iv)(A), which lists required
vessel declarations for gear type, fishery, and intended monitoring
type. Vessels in the Pacific Coast Groundfish Fishery are required to
declare the gear type and monitoring they will use on a given trip. As
described below under Reporting Requirements in this preamble, vessels
will be able to declare ``electronic monitoring'' or ``observer'' as
possible monitoring types on trips with bottom trawl and non-whiting
midwater trawl gear. For the declaration type described at Sec.
660.13(d)(4)(iv)(A)(11) text should read ``Limited entry bottom trawl,
shorebased IFQ, not including demersal trawl or selective flatfish
trawl, observer''. In the proposed rule the word ``observer'' was
unintentionally omitted. This final rule makes this correction to
ensure the declaration type was consistent with the following
declaration option which reads ``(12) Limited entry bottom trawl,
shorebased IFQ, not including demersal trawl or selective flatfish
trawl, electronic monitoring''.
VI. Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this final rule is
consistent with the Pacific Coast Groundfish FMP, Magnuson-Stevens Act,
and other applicable laws.
Pursuant to Executive Order 13175, this final rule was developed
after meaningful consultation and collaboration with tribal officials
from the area covered by the Pacific Coast Groundfish FMP. Under the
Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members
of the Pacific Council must be a representative of an Indian tribe with
federally recognized fishing rights from the area of the Council's
jurisdiction.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866. This final rule does not contain
policies with Federalism or ``takings'' implications as those terms are
defined in Executive Orders 13132 and 12630, respectively.
Final Regulatory Flexibility Analysis
NMFS issued a proposed rule on March 1, 2022 (87 FR 11382), for the
use of EM on bottom trawl and non-whiting midwater trawl vessels.
An initial regulatory flexibility analysis (IRFA) was prepared and
summarized in the Classification section of the preamble to the
proposed rule. The comment period on the proposed
[[Page 59711]]
rule ended on March 31, 2022. NMFS did not receive any public comments
on the proposed rule. The Chief Counsel for Advocacy of the Small
Business Administration (SBA) did not file any comments on the IRFA or
the proposed rule. The description of this action, its purpose, and its
legal basis are described in the preamble to the proposed rule and are
not repeated here. A Final Regulatory Flexibility Analysis (FRFA) was
prepared and incorporates the IRFA. There were no public comments
received on the IRFA. NMFS also prepared a RIR for this action. A copy
of the RIR/FRFA is available from NMFS (see ADDRESSES). A summary of
the FRFA, per the requirements of 5 U.S.C. 604 follows.
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, 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.
A Summary of the Significant Issues Raised by the Public in Response to
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a
Statement of Any Changes Made in the Final Rule as a Result of Such
Comments
No public comments were received on the proposed rule.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply and Estimate of Economic Impacts by Entity Size and Industry
This final rule mainly affects commercial harvesting entities
engaged in the groundfish limited entry trawl fishery. Although this
action proposes 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 this action, this FRFA 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.
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 this
action are expected to range from neutral to positive when compared to
the status quo. Nonetheless, NMFS has prepared this FRFA. There were no
public comments received on this conclusion presented in the IRFA.
The economic impacts on small entities resulting from the final
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 2019-2020, and averaged cost estimates from four prospective
EM service providers. These cost estimates
[[Page 59712]]
are detailed in the section ``Industry Costs'' of the FRFA included in
the supporting documents for this final 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 in 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 final action would not impose new costs on these 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 were there any significant alternatives
to the proposed rule considered that will accomplish the stated
objectives and that minimize any significant economic impact of the
final rule on small entities. As fishing operations 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.
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 FRFA, 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. A small
entity compliance guide will be sent to stakeholders, and copies of the
final rule and guides (i.e., information bulletins) are available from
NMFS at the following website: <a href="https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish">https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish</a>.
Description of the Proposed Reporting, Record-Keeping, and Other
Compliance Requirements of This Proposed Rule Under the Paperwork
Reduction Act (PRA)
The 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 logbook, and hard
drive submission. This rule would revise collection-of-information
requirements to include submission of information for the formation of
self-enforcing cooperative agreements. The 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 rule will 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/3 years). The
burden cost of one copy of the self-enforcing agreement is estimated at
$3.00 ($0.10/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 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 rule, vessels will 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 rule does not increase the time or cost
burden associated with this requirement.
Similarly, this 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
[[Page 59713]]
and Catch Accounting Program (OMB Control Number 0648-0619). Under the
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.
For more information, these collections, and all currently approved
NOAA collections can be viewed at <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, Indians.
Dated: September 26, 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 amended
as follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
1. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16
U.S.C 7001 et seq.
0
2. In Sec. 660.13 revise paragraph (d)(4)(iv)(A) to read as follows:
Sec. 660.13 Recordkeeping and reporting.
* * * * *
(d) * * *
(4) * * *
(iv) * * *
(A) One of the following gear types or sectors, and monitoring type
where applicable, must be declared:
(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, observer,
(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 a definition for ``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) and (3), (m)(4)
introductory text, (m)(5) and (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
[[Page 59714]]
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 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), and (s)(3)(i) and (ii); and
0
f. Remove 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
[[Page 59715]]
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 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)(3)(iii) of this section. All
discards, regardless of the source, must be reported in a discard
logbook, as defined at Sec. 660.604(s)(1), 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,
[[Page 59716]]
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 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)(3)(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)(3)(iii) of this section. All discards, regardless
of the source, must be reported in a discard logbook, as defined at
Sec. 660.604(s)(1), 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 discard logbooks as described at Sec. 660.604(s)(1) and if
applicable, the trawl logbook as described at Sec. 660.13 (a)(1), 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. 2022-21322 Filed 9-30-22; 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.