[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Rules and Regulations]
[Pages 31146-31169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13324]



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Vol. 84

Friday,

No. 125

June 28, 2019

Part II





 Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 660





Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 
Electronic Monitoring Program; Final Rule

  Federal Register / Vol. 84, No. 125 / Friday, June 28, 2019 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 1511169999493-02]
RIN 0648-BF52


Fisheries off West Coast States; Pacific Coast Groundfish 
Fishery; Electronic Monitoring Program

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement an electronic 
monitoring (EM) program for two sectors of the limited entry trawl 
fishery, consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) and the Pacific Coast Groundfish Fishery 
Management Plan (FMP). The action allows catcher vessels in the Pacific 
whiting fishery and fixed gear vessels in the shorebased Individual 
Fishing Quota (IFQ) fishery to use EM in place of observers to meet the 
requirements of the Trawl Rationalization Program for 100-percent at-
sea observer coverage. This action is necessary to increase operational 
flexibility and reduce monitoring costs for vessels in the trawl 
fishery by providing an alternative to observers. Data from the EM 
program will be used to debit discards of IFQ species from IFQs and 
mothership cooperative allocations. Through this action, NMFS has also 
approved and is implementing the following measures: An application 
process for interested vessel owners; performance standards for EM 
systems; requirements for vessel operators; a permitting process and 
standards for EM service providers; and, requirements for processors 
(first receivers) for receiving and disposing of prohibited and 
protected species from EM trips.

DATES: Effective July 29, 2019.

ADDRESSES: Copies of the regulatory amendment and analysis prepared by 
the Pacific Fishery Management Council (Council) are available from 
Chuck Tracy, Executive Director, Pacific Fishery Management Council, 
7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384. The 
Regulatory Impact Review (RIR), final environmental assessment (EA), 
and Final Regulatory Flexibility Analysis (FRFA) prepared for this 
action are accessible at http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish_catch_shares/electronic_monitoring.html. The FRFA 
assessing the impacts of the final measures adopted as originally 
proposed on small entities and describing steps taken to minimize any 
significant economic impact on such entities consists of the FRFA, 
preamble, and the summary of impacts and alternatives contained in the 
Classification section of this final rule and the regulatory amendment.

FOR FURTHER INFORMATION CONTACT: Melissa Hooper, Permits and Monitoring 
Branch Chief, phone: 206-526-4353, fax: 206-526-4461.

SUPPLEMENTARY INFORMATION:

Background

    The Pacific Coast Groundfish FMP specifies management measures for 
over 90 different species of rockfish, flatfish, roundfish, sharks, 
skates, and other species, in federal waters off the West Coast states. 
Target species in the commercial fishery include Pacific hake 
(whiting), sablefish, dover sole, and rockfish, which are harvested by 
vessels using primarily midwater and bottom trawl gear, but also fish 
pots and hook and line. The trawl fishery is managed under a catch 
share program called the Trawl Rationalization Program, which was 
implemented through Amendments 20 and 21 to the FMP in January 2011. 
The Program consists of an IFQ program for the shorebased trawl fleet 
(including whiting and non-whiting sectors) and cooperatives for the 
at-sea mothership and catcher/processor trawl fleets (whiting only). As 
part of the catch share program, Amendment 20 implemented requirements 
for 100-percent monitoring at-sea and dockside in order to ensure 
accountability for all landings and discards of allocated species. 
Catcher/processors and motherships are required to carry two observers 
at all times, depending on the length of the vessel, and catcher 
vessels are required to carry one observer, including while in port 
until all fish are offloaded. In addition, first receivers, which are 
processors that are licensed to receive IFQ landings, are required to 
have catch monitors to monitor 100-percent of IFQ offloads. Vessel 
owners and first receivers are responsible for obtaining and funding 
catch share observers and catch monitors as a necessary condition of 
their participation in the program. However, NMFS provided funds for 
the cost of observers for the first five years of the program to assist 
the industry in transitioning to the catch share program. The amount of 
these funds declined each year and ended in September 2015.
    The Council developed this regulatory amendment to respond to 
concerns about the industry's ability to support observer costs and to 
implement EM as an alternative option to meet the 100-percent at-sea 
monitoring requirement in the fishery. As described in Chapter 2 of the 
EA, this action is necessary to increase operational flexibility; 
decrease incentives to fish in unsafe conditions; reduce monitoring 
costs; increase revenues; reduce the physical intrusiveness of the 
monitoring system; use the technology most suitable and cost effective 
for the monitoring system; and to maintain monitoring capabilities in 
small ports. This action specifies the detailed requirements necessary 
to implement an EM option for two components of the trawl fishery--
catcher vessels using midwater trawl gear to target whiting in the 
mothership and shorebased sectors and trawl-permitted vessels using 
fixed gear to target other species in the shorebased sector. The 
Council has also developed EM regulations for the remaining two 
components of the shorebased IFQ fishery--vessels using bottom trawl 
and midwater trawl to target non-whiting species--which NMFS will 
propose in a separate rulemaking anticipated in mid-2019. A more 
extensive discussion of the development of the regulatory amendment and 
EM measures is available in the proposed rule (81 FR 61161; September 
6, 2016) and is not repeated here.
    Public comments were accepted on the proposed rule from September 
6, 2016, through October 6, 2016. After review of public comments, NMFS 
has determined that the regulations are consistent with the goals and 
objectives of the Pacific Coast Groundfish FMP, and the requirements of 
the MSA and other applicable law. This determination is based on NMFS' 
review of the administrative record, including the Council's record, 
and NMFS' consideration of comments received during the comment period 
for the proposed rule. After considering the required statutory factors 
and the goals and objectives of the Pacific Coast Groundfish FMP, NMFS 
has determined that the Council's recommended EM program provides for 
an alternative method of meeting the monitoring requirements of the 
Trawl Rationalization Program that reduces the costs and operational 
burden of these requirements, while ensuring the best scientific 
information available for conservation and management.

Final Measures

    This section summarizes the measures contained in this final rule. 
To

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implement these measures NMFS revises the trawl fishery regulations in 
Sec. Sec.  660.13, 660.19, 660.130, 660.140, and 660.150, to allow for 
vessel owners to use EM in place of an observer and establishes new 
regulations in Sec. Sec.  660.600-660.604 governing the use of EM.

1. EM Program

    NMFS determined that the proposed EM program for Pacific whiting 
catcher vessels in the shorebased and mothership sectors and fixed gear 
vessels in the shorebased sector of the groundfish fishery is 
consistent with the Pacific Coast Groundfish FMP, MSA, and other 
applicable law because it increases operational flexibility and reduces 
costs for these vessels, while maintaining the best scientific 
information available for management. Vessel owners will be able to 
apply to NMFS to receive an exemption from the 100-percent observer 
coverage requirement, provided that they use an EM system and follow 
the catch handling, reporting, and other requirements of the EM 
program. Vessel owners authorized to use EM would be required to obtain 
an EM system from a NMFS-permitted service provider, as well as 
services to install and maintain the EM system, process and store EM 
data (i.e., video imagery, sensor data, and other associated data 
files), and report EM summary data and compliance information to NMFS. 
Vessel owners have the choice of contracting with any NMFS-permitted 
service provider. Vessel operators would be required to submit a 
logbook reporting their discards of IFQ species. NMFS would use the 
logbook data to debit discards of IFQ species from IFQs and cooperative 
allocations, and use the EM summary data reports to audit the logbook 
data. EM data would also be used to monitor compliance with the 
requirements of the catch share program. NMFS' incremental costs to 
administer the EM program would be recoverable through Trawl Program 
cost recovery fees. The requirements of the program for vessel owners, 
operators, first receivers, and service providers, are described in 
more detail in the proposed rule (81 FR 61161; September 6, 2016) and 
are not repeated here.
    According to NMFS' analysis, EM may save some shorebased whiting 
vessels as much as $27,777 a year on monitoring relative to human 
observers. Mothership catcher vessels and fixed gear vessels may save 
up to $5,900 and $7,575 annually, respectively. These savings would be 
expected to increase net revenues and improve profitability for these 
vessels, and the fishery overall, consistent with the goals and 
objectives of the FMP. EM would also increase operational flexibility 
for groundfish vessels by providing them the option to choose the tool 
that best suits their individual operations. For some vessels, EM may 
be preferable because it does not require accommodating or coordinating 
with an observer, particularly in small or remote ports where an 
observer may not be readily available. In this way, EM also reduces the 
logistical burden and adverse economic impacts of the 100-percent at-
sea monitoring requirements on these vessels and their communities, 
consistent with National Standard 8 of the MSA.
    The EM program maintains high quality information on discards of 
IFQ species for management decisions, while minimizing the costs of 
data collection requirements, consistent with National Standards 2 and 
7 of the MSA. The EM program would continue to provide estimates of 
discards of IFQ species, which is necessary for maintaining 
accountability for total mortality of these species, as well as 
individual IFQ allocations. While EM cannot collect all the information 
collected by human observers, NMFS and the Council have made every 
effort to ensure consistent protocols between the human observer and EM 
programs, to ensure comparable quality, and allow their integration for 
management. To ensure that the EM Program continues to provide NMFS 
with the best scientific information available for management, NMFS and 
the Council have also established strict performance standards in the 
regulations for EM units, vessels, and providers. In addition, NMFS 
intends to maintain some level of NMFS' West Coast Groundfish Observer 
Program coverage on EM trips to continue to collect biological and 
other information that EM cannot collect. NMFS and the Council have 
also established retention rules that minimize the mortality of bycatch 
to the extent practicable consistent with National Standard 9 of the 
MSA, by allowing discarding of those species that can be identified on 
camera.
    NMFS received some public comments expressing concern that the cost 
of EM data services (i.e., video review, storage, and reporting) 
beginning in 2020 (now 2021) would undercut the cost savings of EM and 
requesting delay of these requirements to a later rulemaking. As NMFS 
addresses further in the response to these comments, EM is not a viable 
alternative to observers to meet the 100-percent at-sea monitoring 
requirement of the catch share program without analysis of the EM data 
and submission of reports to NMFS. Without these elements, the EM 
Program would not meet the goals and objectives of the Trawl 
Rationalization Program and, consequently, the Pacific Coast Groundfish 
FMP. NMFS understands the industry's concerns about the costs of 
monitoring overall and has committed to working with the Council to 
continue to find ways to improve the cost savings of the EM program, 
such as by reducing the amount of video reviewed to prepare EM summary 
reports, and the length of time that industry must store its EM data 
(specifically the video data), while still ensuring that the EM Program 
provides an appropriate alternative to observers. In addition, as 
explained in response to comment 2 below, NMFS has paid for EM video 
review and storage under the EM Exempted Fishing Permit (EFP) program, 
which has been testing camera systems and EM video data review 
protocols, and intends to continue to do so through 2020, subject to 
available appropriations. However, NMFS cannot commit to providing 
funds beyond 2020, because NMFS' funding is uncertain and subject to 
Congressional appropriations. To do so would also be inconsistent with 
NMFS' national Policy on Electronic Technologies and Fishery-Dependent 
Data Collection in which NMFS stated that it would not approve any EM 
program that created an unfunded cost of implementation or operation. 
For these reasons, NMFS determined that the data services requirements 
for EM vessels in this final rule are consistent with the Pacific Coast 
Groundfish FMP, MSA, and other applicable laws.

2. Catch Retention Requirements

    Through this final rule, NMFS is implementing a clarified 
definition of ``maximized retention'' for whiting vessels for the 
purposes of the EM program (see 50 CFR 660.604(p)(1)). Under the 
clarified definition, the following discards would be permitted on 
whiting trips as ``minor operational discards'': Mutilated fish, large 
animals (longer than 6 feet (1.8 meters) in length), fish inadvertently 
spilled from the codend during transfer to the mothership, damaged or 
mutilated fish picked from the gear or washed from the deck during 
cleaning, and fish vented from an overfull codend. Discards of 
invertebrates, trash, and debris, and discard events outside the 
control of the vessel operator would also be allowed. Minor operational 
discards would not include discards as a result from taking more catch 
than is necessary to fill the hold (a.k.a. ``topping off''), which 
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continue to be prohibited. Minor operational discards would also not 
include discards of fish from a tow that was not delivered. This occurs 
when there is not enough catch worth delivering to a mothership or not 
of the desired species composition, sometimes called ``test tows'' or 
``water tows.'' This clarified definition was not included in the 
version of the regulations deemed by the Council because the need for 
clarification occurred after deeming, so NMFS proposed the revised 
definition in the proposed rule as a technical change needed for 
clarity. NMFS specifically requested comment on this proposed 
definition but did not receive any comments opposing this revised 
definition.
    NMFS determined this definition in the final regulations is 
necessary to implement the program because it minimizes discards in the 
whiting EM program, reduces uncertainty in the species composition of 
discards, and ensures data produced through the program is the best 
scientific information available for management. These discards are 
currently allowed if first sampled by an observer, but in an EM 
program, an observer would no longer be on board to sample the catch 
before discarding. In addition, as no catch from the haul would be 
delivered to either a mothership or a plant, there would be no species 
composition to extrapolate to the discarded weight. Because these tows 
can sometimes include overfished or endangered species, these discards 
will be prohibited under the EM program.
    The proposal to clarify the definition of minor operational 
discards is also supported by the apparent failure of many of the 
whiting vessels participating in the EM EFP program to comply with the 
EFP discard requirements over the past year, resulting in a troubling 
increase in discards under the EFP. Through this final rule, NMFS is 
providing additional examples of allowable and prohibited discards to 
further clarify the definition. Additional examples of allowable 
discards include discards for verifiable safety reasons; opening a 
blow-out panel because the net is otherwise too large to bring up the 
stern ramp; on mothership (MS)/catcher vessel (CV) trips, loss of fish 
forward of where the codend is tied-off for transfer to the mothership; 
net bleeds/venting of overfull codend that is outside the vessel 
operator's control; damaged or mutilated fish picked from the gear or 
washed from the deck during cleaning up to 1,000 lb per haul; and 
discards due to mechanical failure (but not including failure of a 
catch sensor). Additional examples of prohibited discards include: A 
portion of a haul is retained and the remainder is discarded because 
there is not enough room in the hold; discard when more catch is taken 
than is necessary to fill the hold due to failure of a catch sensor; 
discarding the remainder of a haul by flushing the codend; large 
amounts of fish hosed off the deck, out the scuppers, or down the stern 
ramp, after a portion of the haul is retained. Thus, discarding an 
entire haul or discarding for marketability reasons, including discards 
of small fish, would also be prohibited. Whiting vessels may also not 
selectively discard non-whiting species (e.g., rockfish, salmon) other 
than large marine organisms.
    To assist vessel captains and crew with complying with the 
clarified definition, NMFS will provide further guidance in a 
compliance guide, EM program guidance documents, and the mandatory 
captain training. NMFS intends to continue to work with EM participants 
as appropriate to address any issues that may arise related to discard 
rules.
    Through this final rule, NMFS is also implementing ``optimized 
retention'' for fixed gear vessels. Optimized retention was the 
Council's preferred alternative and would allow vessels to discard any 
species that could be differentiated on camera, except for salmon. NMFS 
requested comment on both maximized and optimized retention options in 
the proposed rule. NMFS received one public comment in favor of 
optimized retention for fixed gear vessels. As detailed further in the 
Comments and Responses section, The Nature Conservancy supported 
optimized retention for fixed gear vessels, because it was being 
practiced with success in the EM EFP program and would be more 
consistent with traditional operations and less disruptive to continue 
under the regulations.
    NMFS agrees and is implementing the Council's preferred optimized 
retention for fixed gear vessels in this final rule, because it is more 
consistent with traditional fishing practices than maximized retention 
and therefore less burdensome for fixed gear vessels. Optimized 
retention is also consistent with the protocols used in the 2016-2018 
EFP program and would be less confusing for EM vessels to maintain. In 
addition, updated data from the 2016 and 2017 EFPs in the final EA 
shows that optimized retention would not substantially increase 
uncertainty in catch estimates, because fixed gear trips continue to 
have low bycatch and discards. For these reasons, NMFS determined that 
optimized retention for fixed gear vessels is consistent with the goals 
and objectives of the FMP to minimize the burden of management 
requirements while providing the best scientific information available, 
as well as National Standards 2, 7, and 8 of the MSA. Allowing the 
discard of bycatch species that can be identified on camera would also 
minimize mortality of bycatch to the extent practicable, consistent 
with MSA National Standard 9.
    NMFS revised the final regulations at Sec.  660.604(p)(2) to 
reflect optimized retention accordingly. The proposed regulations 
contained the more restrictive maximized retention rules, which were 
deemed by the Council at its April 2016 meeting. NMFS further consulted 
with the Council at its April 2016 meeting about its intentions to 
propose and implement the Council's preferred alternative of optimized 
retention in the final rule, pending public comment and final data from 
the 2016 EM EFPs to support this alternative. As NMFS has determined 
that optimized retention is consistent with the Pacific Coast 
Groundfish FMP, the MSA, and other applicable law, NMFS has revised the 
final regulations to reflect the Council's preferred alternative.

3. Video Data Retention

    EM service providers will be required to maintain EM data and other 
vessel owner records for a minimum of three years (see Sec.  
660.603(m)(6)). This data storage would be part of the data services 
that a vessel owner receives from its EM service provider. Vessel 
owners would be responsible for these storage costs, along with the 
other services rendered by the EM provider, as a condition of the 
vessel owner's participation in the program. In the proposed rule, NMFS 
specifically requested comment on the length of time that a vessel 
owner must store its EM data through its EM provider. NMFS initially 
recommended a five-year retention period, based on the five-year 
statute of limitations for violations of the MSA, to ensure that the EM 
data and other records used to produce summary and compliance reports 
for NMFS are available to NMFS and authorized officers for inspection 
to evaluate the providers' and vessels' performance and to effectively 
administer the EM program and enforce the regulations. As indicated by 
public comment on the proposed rule and at Council meetings during 
development of this action, some industry members are concerned about 
the costs of storing such a large amount of video data, as well as the 
potential for enforcement personnel or other entities to access it for 
other purposes. They

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would prefer the EM data be destroyed after one year, and only the 
summary reports resulting from the video review be retained. As a 
compromise, NMFS proposed and the Council supported a three-year 
retention period in the draft regulations. However, the Council also 
recommended that NMFS review this requirement before implementation to 
determine if it can be reduced. NMFS specifically requested comment on 
whether a one, three, or five year, retention period is appropriate for 
EM data.
    NMFS received two public comments stating that EM data should only 
be retained for a few months to one year. The commenters asserted that 
information of value would be extracted from the EM data in the initial 
analysis and any additional value of retaining the video further was 
low. As NMFS discusses further in its response to these comments, at 
this time NMFS believes that the three-year retention period proposed 
by the Council and NMFS strikes the right balance between minimizing 
the costs of the EM program and ensuring that vessel owners' EM data is 
available to NMFS and its authorized officers to inspect or obtain for 
review for data quality assurance and compliance and enforcement. NMFS 
believes that, in the future, a shorter video retention period may be 
appropriate, once all the protocols have been established to extract 
the necessary information from the EM data before it is destroyed and 
the costs and benefits of different retention periods have been weighed 
by the Council and NMFS. However, at this time, the groundfish EM 
program is still in its early stages and NMFS and the Council are still 
developing the video sampling and auditing protocols and timelines. 
These protocols would factor heavily into NMFS' and the Council's 
analysis of the costs and benefits of different retention periods. NMFS 
understands the Council's and industry's concerns regarding the cost of 
storing EM data (specifically the video data) and the desire to 
minimize the costs of the EM program. NMFS has committed to working 
with the Council to evaluate whether shorter retention periods may be 
feasible in the future, and is in the process of developing a national 
policy on the minimum time that EM data must be retained. However, at 
present, NMFS believes that a three-year retention period is necessary 
to ensure that the EM data is available for NMFS to inspect to evaluate 
the providers' and vessels' performance and to effectively administer 
the EM program and enforce the regulations. Therefore, NMFS determined 
the three-year retention requirement in the proposed regulations is 
consistent with the Pacific Coast Groundfish FMP, MSA, and other 
applicable laws.

4. Switching Between Observers and EM

    NMFS is waiving the limit on the number of times whiting vessels 
may switch between EM and observers in the same calendar year, because 
NMFS has determined that it is not necessary for purposes of observer 
deployment. The regulations implemented through this rule (Sec.  
660.604(m)) limit the number of times whiting vessels may switch 
between EM and observers, in order to limit disruption to observer 
deployments. These regulations allow NMFS to waive this requirement, 
with prior notice, if NMFS determines that it is not necessary for 
purposes of observer deployment. NMFS has determined that information 
that will be gathered in the annual application process for EM vessels 
and the pre-trip declaration to the observer program is all the 
information that is needed to plan observer deployments at this time. 
NMFS reserves the right to reinstitute the limit on switching for 
whiting vessels, with prior notice, should it become necessary. If 
reinstituted, a whiting vessel would be limited to changing its 
monitoring declaration twice in the same calendar year. Additional 
revisions may be made if the EM system has malfunctioned and the vessel 
operator has chosen to carry an observer; or subsequently, the EM 
system has been repaired; and upon expiration or invalidation of the 
vessel's EM Authorization. NMFS requested comment on the two-change 
limit in the proposed rule but no comments were received.

5. Additional Corrections

    NMFS identified a number of corrections and clarifications to the 
proposed regulations that were needed to clarify the regulations and to 
achieve the objectives of the FMP. NMFS consulted with the Council on 
these changes, as allowed by section 304(b)(3) of the MSA, through an 
exchange of letters dated October 24 and November 5, 2018 and May 23 
and 30, 2019.
    In 50 CFR 660.604(p)(2), NMFS revised the fixed gear retention 
rules to be consistent with the Seabird Avoidance Program at 50 CFR 
660.21. The proposed regulations required fixed gear vessels to discard 
seabirds. While this is correct for pot vessels, longline vessels are 
required by the Seabird Avoidance Program to retain short-tailed 
albatross carcasses and turn them over to the U.S. Fish and Wildlife 
Service. Therefore, NMFS has revised the final retention rules for 
fixed gear vessels to reference and not contradict the requirements of 
the Seabird Avoidance Program.
    In 50 CFR 660.604(e)(3)(iii)(H), NMFS changed the requirement that 
a vessel monitoring plan (VMP) include measurements for bins and 
baskets to include other tools, because some species are measured using 
a length board and length-weight regression rather than volumetric 
estimates.
    NMFS also revised the regulations governing the transmission and 
handling of EM data throughout 50 CFR 660.603 and 660.604 to reference 
EM data more generally, rather than hard drives specifically, to allow 
for other types of technology to be used to transmit EM data in the 
future (e.g., satellite, WiFi). NMFS discussed this change with the 
Council at its June 2018 meeting.
    In 50 CFR 660.603(b) and 660.604(e), NMFS also revised the renewal 
procedures for vessel authorizations and provider permits to clarify 
the effective date and conditions under which authorizations and 
permits may expire. The proposed regulations were not clear that EM 
authorizations and provider permits have an expiration date and that 
vessels and providers must apply to renew them. This is in contrast to 
VMPs, which will be living documents that are effective unless changed. 
A renewal requirement for EM Authorizations is necessary for NMFS to 
maintain up-to-date information on an individual's eligibility to 
continue to participate in the program. To address EM service 
providers' desire for stability in planning, NMFS has made EM provider 
permits effective for two years instead of one.
    In 50 CFR 660.603(i), NMFS has removed the requirement for EM 
providers to maintain insurance coverage under the Jones Act and the 
U.S. Longshore and Harbor Workers' Compensation Act. NMFS proposed 
requiring insurance to cover potential claims by EM provider employees 
under these Acts. However, after further review, NMFS has determined 
that these Acts do not apply to EM service providers and technicians 
and, therefore, are unnecessary.
    NMFS revised 50 CFR 660.13 to be consistent with changes made to 
VMS declarations by the final rule that revised trawl gear requirements 
in the Pacific Coast Groundfish regulations (83 FR 62269, December 3, 
2018).
    NMFS added definitions for ``EM data'' and ``EM datasets'' and 
accordingly revised the regulations throughout to clarify the 
difference

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between different types of raw and summary EM data, and different types 
of EM program records.
    NMFS revised 50 CFR 660.603(l) to clarify that EM service providers 
must provide NMFS information, rather than support, that may be used in 
litigation and enforcement action, in response to a public comment.
    NMFS clarified the terminology used to describe those with the 
authority to access and obtain EM data and other records, and other 
technical and litigation information to be consistent in 50 CFR 
660.603(l), m(6), and (n)(3), and 660.604(o) and (t).
    NMFS revised 50 CFR 660.603(n)(3) in response to a public comment 
to make clear that a vessel owner or authorized representative may 
authorize the EM service provider to the release of the vessel owner's 
EM data.
    NMFS revised 50 CFR 660.600(b) and 660.603(b)(1)(vii), (k) and (m), 
to centralize the defined purpose of the EM program and reduce 
repetition throughout, and to clarify how the EM Program Guidelines and 
EM Program Manual will be used to evaluate EM service provider and 
vessel plans and performance.
    NMFS revised the regulations at 50 CFR 660.603(a), (b)(5)(iii), 
(h)(2), (m), (m)(1), (m)(5)-(6), (n) and (n)(1) to clarify the role of 
EM service providers in the EM Program as the contracted agents of 
participating vessel owners.
    NMFS revised 50 CFR 660.600(a), 660.603(m), and 660.604(b)(7), to 
implement third party EM service provider data services (i.e., video 
review, reporting, and data storage) beginning January 1, 2021, 
consistent with the updated timeline discussed by the Council at its 
April 2019 meeting. NMFS proposed the revised timeline, and the Council 
agreed, to provide additional time to NMFS and the Council to work on 
the EM program guidelines and to prepare for implementation of third 
party video review. In addition, NMFS was able to locate funding to 
support PSMFC to continue to review video from the EM EFP through 2020. 
Vessels may continue to participate in the EM EFP Program through 2019. 
The Council is scheduled to renew the EM EFP through 2020 at their 
September 2019 meeting.
    Finally, NMFS made a number of other minor revisions to clarify the 
prohibitions at 50 CFR 660.602 and to correct typos throughout the 
regulations.

Comments and Responses

    NMFS received a total of four comments on the proposed rule during 
the public comment period. Letters were received from two environmental 
organizations, one EM service provider, and one member of the public. 
One of the same environmental organizations and some members of the 
fishing industry submitted two additional letters to the NMFS West 
Coast Regional Administrator and the Council at the April 2017 Council 
meeting commenting further on the proposed rule. Although these letters 
were received outside of the public comment period, we have addressed 
them in this final rule. Four comments generally supported the EM 
program. One of the comments did not address the proposed measures and 
thus it is not included here. Where possible, responses to similar 
comments on the proposed measures have been consolidated.
    Comment 1: Environmental Defense Fund (EDF) generally supported 
implementing the EM program because it would reduce the costs of 
monitoring.
    Response: NMFS agrees with EDF that EM provides a lower-cost option 
for vessel owners to meet the 100-percent at-sea observer coverage 
requirements of the catch share program and has approved the EM program 
for whiting and fixed gear vessels through this final rule. According 
to the economic analysis, a shorebased whiting vessel may save an 
estimated $27,777 per year, an MS/CV vessel $5,900 per year, and a 
fixed gear vessel $7,575 per year, compared to the cost of using an 
observer. These savings would increase net revenues for these vessels 
and the fishery overall, consistent with the Council's objectives for 
the program. The EM program also increases operational flexibility for 
vessel owners, by providing an alternative to observers for meeting the 
monitoring requirements of the catch share program. Having the option 
to use EM or an observer allows vessel owners to choose the tool that 
is the most cost effective and suitable for their individual operation. 
Although the cost savings relative to observers may be smaller for some 
vessels, some vessel owners may choose to use EM in order to avoid 
carrying another person onboard, or because it gives them the 
flexibility to depart on trips without carrying an observer, which may 
not be available at the desired time, particularly in some remote 
ports. NMFS finds that the EM program reduces the burden from the 100-
percent at-sea monitoring requirement of the catch share program and 
increases profitability and flexibility for participating vessels, and 
it is consistent with the goals and objectives of the FMP, the MSA, and 
other applicable laws.
    Comment 2: The Nature Conservancy (TNC) and a letter from 
groundfish industry representatives, consisting of the California 
Groundfish Collective, Oregon Trawl Commission, Fort Bragg Groundfish 
Association, Half Moon Bay Groundfish Marketing Association, Morro Bay 
Community Quota Fund, the EM Fixed Gear EFP, and an individual 
commercial fisherman, supported implementing EM as a lower-cost 
monitoring option, but opposed requiring industry to procure video 
review, data storage, and reporting services from third party service 
providers in this rulemaking and instead requested these requirements 
be postponed to a later rulemaking. TNC and the California Groundfish 
Collective et al. commented that requiring industry to bear these costs 
now would undercut the cost-savings of EM and should be delayed until 
the costs of the program requirements can be reduced and/or industry is 
able to find a way to defray the costs of the program, such as by 
securing rights to access and sell their EM data. They noted that for 
bottom trawl vessels EM is approximately equal to the cost of observers 
and EM only provides a small amount of savings for fixed gear vessels. 
The California Groundfish Collective et al. want to defer third party 
video review to maintain Pacific States Marine Fisheries Commission 
(PSMFC) as a video reviewer, because they believe it is less costly 
than a private sector service provider.
    Response: NMFS disagrees with the commenters about delaying 
requirements to a later rulemaking. As NMFS has previously stated in 
discussions on this issue at the September and November 2015 and April 
2016 Council meetings, excluding requirements for participants to 
procure video review, data storage, and reporting services from this 
rulemaking would not be consistent with the goals and objectives of the 
Trawl Rationalization Program and the Pacific Coast Groundfish FMP and, 
therefore, is not a reasonable alternative. A vessel's raw EM data 
(e.g. imagery, sensor data, and other associated data files) cannot be 
used by NMFS for catch accounting. Without the required analysis and 
reporting, the EM data would not be a usable substitute for observer 
data and the EM Program would not be an equivalent alternative to human 
observers for meeting the 100-percent at-sea monitoring requirements of 
the catch share program. Therefore, the requirement for participants to 
procure services to analyze the vessel's EM data and report EM summary 
data to NMFS

[[Page 31151]]

cannot be severed and postponed to a separate rulemaking.
    Furthermore, NMFS has determined that a vessel owner that chooses 
EM in lieu of a human observer must be responsible for the cost of 
processing of his or her EM data and delivery of summary data to NMFS. 
NMFS has paid these costs under the EM EFP program, which has been 
testing camera systems and EM video data review protocols, and intends 
to continue to do so through 2020. Thereafter, vessel owners who choose 
to participate in the EM program will be responsible for paying for 
analysis and storage of their EM data and for delivery of the vessel 
owner's summary data to NMFS. NMFS would continue to pay for its costs 
to administer components of the EM program, including the agency's 
review of any EM data selected for secondary evaluation or compliance 
and enforcement purposes, and the storage costs of any EM data that 
NMFS obtains and makes part of its records for these purposes. NMFS 
cannot commit to providing funds to pay for the industry's portion of 
the video review and storage beyond 2020 because NMFS funding is 
uncertain and subject to Congressional appropriation and to do so would 
be inconsistent with NMFS' own Policy on Electronic Technologies and 
Fishery Dependent Data Collection. As NMFS has stated at Council 
meetings on this issue, and in the preamble to the proposed rule and 
this final rule, the analysis and storage of the vessel owner's EM data 
is the vessel owner's responsibility. Industry-funded, third party 
video review is needed beginning in 2021 if the program is to continue 
and provide a viable alternative to observers. As with the observer and 
catch monitor programs, when appropriations were available NMFS 
provided funds to assist with testing cameras and protocols. However, 
after the EM funds are expended in 2020, industry must assume its share 
of the EM program costs as it did with observer and catch monitor costs 
in 2015. Therefore, NMFS determined that the requirements for third-
party data services in this final rule are consistent with the Pacific 
Coast Groundfish FMP, MSA, and other applicable laws.
    Regarding the modest savings for some vessels, the EM program is 
not a panacea for all fishing operations. As has been shown by NMFS' 
cost analyses, the amount of savings relative to using observers is 
largely driven by the number of days fished due to the high initial 
fixed costs of EM. Vessels fishing more sea days see a greater savings 
from EM because the fixed costs of equipment, installation, and field 
services are spread among more sea days, creating a lower average sea 
day rate. For vessels that fish comparatively few sea days, EM has high 
initial and annual costs that may not be worth the investment and using 
an observer may actually be cheaper. However, as described in the 
response to Comment 1, EM can provide substantial cost savings for some 
vessels, even after NMFS' funding has ended. For those vessels for whom 
cost savings are marginal, EM may provide other benefits that may make 
it preferable to an observer, such as flexibility in scheduling trips 
and not having to accommodate another person onboard. Although EM may 
not be the most cost effective option for everyone, NMFS believes this 
should not preclude making an EM option available for those it may 
benefit. For these operations, the EM program is consistent with the 
objectives of the FMP and the MSA, to increase flexibility, minimize 
costs, and avoid adverse economic impacts from monitoring requirements. 
In addition, NMFS and the Council are continuing to work to identify 
ways to reduce the costs of the EM program to increase benefits for all 
participants, such as by reducing the amount of video reviewed and 
stored. Therefore, NMFS determined the EM program recommended by the 
Council is consistent with the Pacific Coast Groundfish FMP, MSA, and 
other applicable laws.
    Finally, with respect to delaying the regulations in order to 
maintain PSMFC as a video reviewer, NMFS stated to the Council in its 
supplemental NMFS report at the September 2017 Council meeting that 
PSMFC may obtain a permit as a third party EM service provider from 
NMFS, same as any other third party provider through the regulations. 
The regulations do not preclude PSMFC from continuing to conduct video 
review on industry's behalf after 2020 and, therefore, no change or 
delay to the regulations is needed.
    Comment 3: TNC and the California Groundfish Collective et al. 
further commented that the final rule should be delayed because the 
economic analysis underestimated the cost of the program to the fleet 
and did not analyze a significant alternative, which would have 
considered deferring requirements for industry to procure third party 
video review services until confidentiality requirements could be 
revised to allow industry to sell their EM data. They stated that the 
economic analysis failed to account for costs that NMFS would continue 
to perform after the program transitions to industry-funded, third 
party video review and the cost of scientific observer coverage that 
NMFS intends to maintain on EM trips, which may be passed on to 
harvesters through cost recovery fees. The California Groundfish 
Collective et al. commented that the economic analysis was based on 
PSMFC's costs, a quasi-government, non-profit entity, which are not 
representative of and likely underestimate the costs of private sector 
service providers. They further argued that private sector, third party 
provider costs cannot be estimated because some components of the 
program, such as sampling rates, remain unspecified. TNC also asserted 
that the economic analysis should have evaluated the affordability of 
EM and observers relative to vessel revenues, rather than simply 
comparing the costs of the two options.
    Response: NMFS believes the commenters are misunderstanding the 
assumptions used in the economic analysis. Contrary to the commenters' 
assertions, the analysis did include NMFS' costs to administer the 
program once it transitions to third party video review and the amount 
of this cost that would be expected to be recovered from industry 
through cost recovery fees. Pages 8-10 of the draft RIR/IRFA and final 
RIR/FRFA describe NMFS' anticipated duties and costs when the program 
transitions to third party video review, including a table on page 10 
that shows the expected change in cost recovery fees as a result--no 
change for the shorebased sector, which is already at the 3-percent 
limit allowed by the MSA, and an increase of approximately 0.02-percent 
for the mothership sector. The estimated change to the cost recovery 
fee for the mothership sector was not included in the estimated EM sea 
day rate used to compare to the observer sea day rate in earlier 
tables, which may be the source of confusion. The change to the cost 
recovery fee was not included in the estimated EM sea day rate, because 
the portion of the cost recovery fee from NMFS' costs to administer the 
observer program are not included in the observer sea day rate and so 
including it in the EM sea day rate would not have been appropriate for 
comparison.
    The cost to NMFS for maintaining scientific observer coverage on EM 
trips was not included in the estimated costs of the EM program, 
because NMFS intends to cover these costs itself as it did prior to the 
beginning of the Trawl Program. This is consistent with NMFS' policy of 
not recovering the portion of its costs for administering the catch 
share observer program that corresponds to the level of coverage NMFS 
provided

[[Page 31152]]

to the fleet prior to the beginning of the Trawl Program.
    Regarding third party service provider costs, NMFS disagrees that 
the economic analysis does not capture the likely costs to industry 
from third party video review services. NMFS made estimates of these 
costs based on the actual costs of the EM EFP program since 2015, which 
are summarized as the video review and data storage costs in tables on 
pages 7 and 8 of the RIR/FRFA and Table 17 in the final EA (available 
at regulations.gov, see ADDRESSES). Although it is not known what exact 
fees third party providers will charge for these services, NMFS used 
various assumptions in the economic analysis to provide an estimate of 
these costs to industry based on the best scientific information 
available. While private sector service providers may charge higher 
fees than PSMFC, the economic analysis also contained conservative 
assumptions about the amount of video that would need to be reviewed 
and stored. These conservative assumptions were necessary to capture 
the range of potential sampling rates, and resulting costs, for video 
review and data storage to industry. For example, NMFS' analysis 
assumed that 100 percent of EM data would be reviewed and stored. This 
level of review and storage is not expected to continue into the future 
as the program transitions to the logbook audit model, so these costs 
were likely an overestimate of the actual costs to industry. Although 
PSMFC may be able to carry out these duties at a lower cost than a 
private sector service provider, private sector providers will likely 
be conducting the video review and storage at lower rates once a 
logbook audit protocol is implemented. NMFS also assumed that EM units 
would need to be replaced every 3 years, rather than 5 or 10 years as 
has been seen in some programs, likely overestimating the annual, 
amortized equipment costs. Therefore, NMFS anticipates that even if it 
has underestimated the overhead costs or video review costs charged by 
providers, the total costs estimated have captured the total costs of 
the program to industry.
    NMFS disagrees with the commenters that the economic analysis was 
deficient because it did not examine the affordability of monitoring 
relative to vessel revenues for different components of the fishery. 
NMFS believes that the commenters have misunderstood the purpose of the 
action, which was to evaluate making EM an option for meeting 
monitoring requirements of the catch share program, compared to 
observers. The objective of the action was not to revisit the 
requirement for 100-percent at-sea observer coverage and whether it is 
affordable or justifiable; a decision that was analyzed and made in 
Amendment 20. Therefore, it would not have been appropriate to analyze 
the affordability of the EM and observer programs, relative to less or 
no monitoring, because those are not alternatives under consideration 
in this action. Instead, NMFS' analysis compared the cost and other 
aspects of EM relative to observers, because this action is offering a 
choice between the two and the decision for NMFS and the Council is 
whether having a choice is of greater benefit than not having a choice. 
In addition, TNC's analysis focused in part on differences in revenues 
for bottom trawl vessels depending on target species, because NMFS' 
economic analysis included bottom trawl vessels. However, EM for bottom 
trawl vessels is not part of this rulemaking, but will be considered in 
a separate rulemaking. NMFS' economic analysis included bottom trawl 
vessels for purposes of apportioning those costs from the EM EFP 
program to each gear type for the analysis. NMFS has added language to 
the final RIR/FRFA to clarify this point.
    NMFS disagrees that deferring industry-funded, third party video 
review to a later rulemaking is a significant alternative that should 
have been analyzed in the RIR/IRFA. See response to Comment 2 for a 
detailed explanation. With regard to vessel owner access to EM data, 
see response to Comment 4.
    Comment 4: TNC commented that the requirement for EM service 
providers to maintain the confidentiality of the EM data was too 
restrictive and would not allow EM vessels to extract additional 
economic value from the EM data that might be used to offset the costs 
of the EM program. TNC requested that NMFS revise the proposed 
regulations at Sec.  660.603(n)(3) to explicitly allow vessel owners to 
have rights to control access to their EM data.
    Response: Proposed Sec.  660.603(n)(3) was not intended to affect 
vessel owners' ability to access or authorize release of EM data 
collected on board their vessels or other related records. NMFS 
considers EM data and related records that a vessel owner stores with 
its EM service provider as owned by the vessel owner. In response to 
comments, NMFS has revised Sec.  660.603(n)(3) to clarify that an EM 
service provider and its employees may release a vessel's EM data and 
related records to other persons if authorized by the vessel owner or 
their authorized representative. Note that vessel owners' rights with 
respect to their data does not affect the authority of NMFS or its 
authorized officers to obtain EM data or other records directly from an 
EM service provider for the purposes specified in the regulations. See 
Sec. Sec.  660.603(m)(6), (n)(3). EM data and records that NMFS 
receives from the EM service provider will be handled consistent with 
section 402(b) of the MSA, the Federal Records Act (FRA), the Freedom 
of Information Act (FOIA), and other applicable law. EM data that NMFS 
does not receive from the EM data provider are not records for purposes 
of the FRA or FOIA.
    NMFS has also made other minor edits to simplify or clarify the 
text, including deleting the phrase ``consistent with the MSA.'' NMFS 
has concluded that the rule overall is consistent with the MSA; it is 
not necessary to reiterate that in a subparagraph of the regulatory 
text.
    Comment 5: Two commenters commented that the length that EM data 
(specifically video data) must be retained by the EM service provider 
should be shorter than 3 years. An EM service provider commented that 
EM datasets should not be retained for more than a few months, except 
where compliance issues are identified, due to the costs of archiving 
large video datasets. He further stated that the data of interest is 
the fishery activities which are already extracted from the initial 
video review. He cited the Canadian EM program as an example, where 
datasets are generally deleted about a month after they are processed 
unless a compliance issue is identified, in which case the full video 
is turned over to the government. EDF commented that the video imagery 
should be held for one year, because the catch data extracted from the 
video review will be held permanently and the need to review past 
imagery is likely low. EDF further commented that the standards for 
record retention should not be higher than for vessels carrying 
observers, or for vessels in other fisheries.
    Response: NMFS disagrees with the commenters that the EM data 
should be held for a few months to one year at this time. It is not 
reasonable to compare the current groundfish EM program to the Canadian 
EM program where protocols are well established and the program has 
demonstrated performance over many years. The current groundfish EM 
program is in its early stages and not all the protocols and associated 
timelines have been established. NMFS and the Council are still 
developing sampling protocols for the video review that would be 
expected to influence how much video would need to be archived

[[Page 31153]]

and for how long. For example, at this time, PSMFC is only reviewing 
video imagery from gear retrievals during which time most discarding 
occurs and only reviews other parts of the video ad-hoc, such as when 
compliance issues are suspected. This additional review may not occur 
until after the end of the season. In some cases, errors may be found 
or video review protocols may be changed, that would require reviewers 
to re-review parts of video already analyzed. The costs and benefits of 
the retention period must take into account the sampling schemes 
developed for the video review and NMFS and the Council must weigh the 
risks and uncertainty introduced by deleting video that has not been 
reviewed. NMFS understands the cost burden of this requirement to 
industry and has committed to work with the Council to evaluate shorter 
retention periods. The cost of storing video data is a problem facing 
all EM programs, and NMFS has made it a priority to develop a national 
policy for the minimal retention of EM data (especially the video 
imagery) by service providers. NMFS agrees that in the future, it may 
be possible to delete the EM data more quickly after the review once 
protocols are well established and the costs and benefits of different 
retention periods have been weighed and looks forward to working with 
the Council and other stakeholders on developing options. At this time, 
NMFS believes that a retention period of three years is necessary to 
ensure that EM data is available for inspection for NMFS to evaluate 
providers' and vessels' performance and to effectively administer the 
EM program and enforce the regulations.
    NMFS also believes a three-year retention period is necessary to 
preserve NMFS' ability to establish a national policy for minimum video 
data retention. NMFS is currently developing a draft national policy 
for retention of video imagery from EM programs, which is expected to 
be finalized in the next year or two. It is important that video 
imagery from the groundfish EM program not be deleted before NMFS can 
finalize this policy. If the final policy is different from the three 
year retention period in this final rule, NMFS intends to revise the 
groundfish regulations to be consistent with the final national policy 
through a proposed and final rulemaking at that time.
    Comment 6: An EM service provider commented on the proposed 
requirement for EM service providers to provide support to NMFS, free 
of charge to NMFS (see Sec.  660.603(l)). The EM service provider 
commented that such a blanket, open-ended requirement would be 
impossible to manage or budget and difficult to recoup through fees 
charged to industry and, therefore, unfair to the EM service providers. 
The EM service provider also stated that the potential costs of this 
requirement were not addressed in the economic impacts analysis and 
that this was a major oversight. The EM service provider stated that 
NMFS should instead pay for service requests.
    Response: EM service providers will provide services to vessel 
owners with whom they have contracts. In addition, though, EM service 
providers need to have permits from NMFS. As a condition of their 
permits, NMFS clarifies in the final rule at Sec.  660.603(l) that, 
upon request, EM service providers must provide information--not 
litigation support--to the agency regarding their EM systems and 
related data issues. NMFS may use such information for litigation, 
including enforcement cases. As a condition of their permits, EM 
service providers will be required to respond to and remedy technical 
issues identified by NMFS, such as recovery of corrupt data, and 
provide NMFS software to view and analyze the EM data to evaluate 
providers' and vessels' performance and to effectively administer the 
EM program and enforce the regulations. Vessels participating in the 
fishery using EM, and their contracted EM service providers, gain a 
benefit from the EM program. Therefore, it is reasonable for NMFS to 
require EM service providers to provide NMFS with information, respond 
to issues NMFS identifies with vessels' EM systems and data, and to 
provide NMFS with the proprietary tools to evaluate that data, at no 
additional expense to NMFS. NMFS maintains similar requirements in the 
regulations for vessel monitoring system (VMS) service providers (see 
Sec.  600.1508).
    NMFS did estimate the cost and time burden to providers from these 
requirements as part of the Paperwork Reduction Act (PRA) package that 
accompanied this rule, which was summarized in the Classification 
section of the proposed rule and this final rule. As part of estimating 
the burden of reporting and recordkeeping requirements of the proposed 
regulations, NMFS estimated that each service provider would receive no 
more than 10 requests from NMFS each year for the information listed in 
Sec.  660.603(l). The largest time burden would be associated with 
responding to inquiries from NMFS following-up on data summaries, 
analyses, reports, and operational issues with vessel representatives. 
Most inquiries would be short phone conversations to quality assure/
quality check trip data at approximately 15 minutes per trip. Some 
trips may require more extensive inquiries if an EM system malfunction 
or compliance issue occurred, potentially up to 25 hours. Assuming 90 
percent of trips require some follow-up at 15 minutes per trip and 10 
percent of trips require more extensive investigation (25 hours/trip) 
results in a total annual burden of 4,778 hours ((175 trips x 25 hours/
trip) + (1,575 trips x 15 minutes/trip)). This information was 
summarized in the Classification section of the preamble to the 
proposed rule and again in this final rule. These costs were also 
assumed to be included in the field services and data services costs 
for third party service providers in the RIR/FRFA, which were based on 
the number of such inquiries seen in the EM EFP program to which 
service providers and PSMFC have responded.
    Comment 7: One commenter commented on the level of video review 
specified in the proposed regulations at Sec.  660.603(m)(1). EDF 
commented that more detail was needed on the conditions under which the 
review rate would be reduced in order to provide guidance to industry 
and service providers and incentives for industry to comply. EDF also 
commented that the 100-percent review rate and 50-percent audit rate 
used in the analysis was too high and the costs outweighed any benefits 
from this level of review.
    Response: NMFS believes the commenter may be misunderstanding the 
purpose of the 100-percent review rate and 50-percent audit rate in the 
economic analysis. The regulations at Sec.  660.603(m)(1) specify that 
the EM service provider must conduct the video review according to a 
sampling scheme established by NMFS but does not provide a specific 
rate in the regulations. As the commenter noted, it is important to 
maintain flexibility in the regulations, given that the audit rate may 
change over time based on program and fleet performance, to ensure that 
the EM program continues to provide the best scientific information 
available for catch accounting and monitoring compliance. NMFS used a 
100-percent review rate in the analysis only to provide a high-end 
estimate of a potential range of costs to the industry. Although PSMFC, 
on behalf of NMFS, is reviewing 100 percent of the fishing activity at 
this time, NMFS is working with the Council to develop an alternate 
review rate with the objective of auditing the logbooks, which would be 
the primary source of discard information, that would be based on fleet 
performance. NMFS does not

[[Page 31154]]

anticipate requiring EM service providers to review 100 percent of the 
video all the time, but this number was simply provided to capture the 
highest possible cost of video review for the purpose of analysis. 
Similarly, NMFS anticipates its rate of review to audit the provider's 
review, i.e., the EM summary reports, would be less than 50 percent. 
NMFS used 50 percent in the analysis because sometimes NMFS may need to 
review additional video from some providers, more than the standard 
audit rate, such as if an error is discovered that affects multiple 
vessels or trips. Therefore, 50 percent was only intended as a high-end 
estimate of the range of potential costs to industry and is likely an 
overestimate of actual audit costs.
    Comment 8: The Nature Conservancy commented in support of optimized 
retention rules for fixed gear vessels, because fixed gear vessels have 
been fishing under optimized retention in the EFP and to return to 
maximized retention now would be confusing for captains and crew. 
Optimized retention is less disruptive to fishing operations because it 
is what captains and crew are used to doing when an observer is 
onboard. Maximized retention would require vessels to change practices 
and update their vessel monitoring plans. Optimized retention rules 
were developed collaboratively with industry in the EFP and not 
implementing them would undermine confidence in the EFP process. 
Optimized retention has worked well in the EFPs and provides more 
flexibility to vessels and the Council to adapt the program over time.
    Response: NMFS agrees and has implemented optimized retention for 
fixed gear vessels in this final rule. The proposed regulations 
contained maximized retention, although optimized retention was the 
Council's final preferred alternative, because EFP data on optimized 
retention was not available at the time of the Council's final action 
in April 2016. However, NMFS also proposed and solicited comment on 
optimized retention in the preamble to the proposed rule in order to 
enable us to implement optimized retention in the final rule, if 
supported by updated EFP results. This approach was discussed with and 
approved by the Council at its April 2016 meeting.
    Optimized retention is consistent with what has been practiced in 
the EFP since 2016 and would be less disruptive to captains and crew to 
maintain. In addition, it would provide maximum flexibility in vessel 
operations and allow captains and crew to maintain operations more 
closely between trips with EM and trips with observers. Optimized 
retention has been practiced successfully in the EFP and would not 
undermine data quality relative to maximized retention protocols, as 
shown in updated information in the final EA. Optimized retention would 
also minimize discard mortality, by minimizing the amount of catch that 
must be retained. In this way, optimized retention best meets the 
Council's objectives for this action to provide flexibility and reduce 
monitoring costs to the fleet while maintaining data quality and 
accountability. Therefore, NMFS determined that optimized retention for 
fixed gear vessels in this final rule is consistent with the Pacific 
Coast Groundfish FMP, MSA, and other applicable laws.
    Comment 9: EDF commented in support of the halibut discard 
mortality rate (DMR) method in the rule for whiting and fixed gear 
vessels, but commented that a different approach is needed for bottom 
trawl trips, where Pacific halibut is encountered more frequently and 
can constrain fishing for target species caught with it.
    Response: NMFS agrees that the halibut DMRs are appropriate for 
whiting and fixed gear and has approved this measure in the final rule. 
The DMRs in use in the EM program have been approved by the 
International Pacific Halibut Commission (IPHC) and represent the best 
available scientific information for estimating mortality in these 
fleets. NMFS, the IPHC, and Council have been working on alternative 
methods for estimating mortality in the bottom trawl fleet, which were 
implemented in 2018 in the EFPs and will be addressed in a separate 
rulemaking for EM regulations for bottom trawl and non-whiting midwater 
trawl vessels.
    Comment 10: EDF commented that NMFS should put EM information, such 
as forms, applications, etc. online on the vessel account system 
website where vessels already access their personal account 
information.
    Response: NMFS agrees and intends to post links to applications 
forms, etc. on its website along with its other permit applications. 
Currently, the vessel account system presents information to the user 
on IFQ account balances, etc., but does not allow the user to upload 
documentation, as in the case of signed applications or Vessel 
Monitoring Plans. NMFS is interested in moving to online forms for all 
its permit renewals and will include EM forms if it does. NMFS is in 
the process of developing an online system for vessel owners to review 
their EM summary and compliance reports and plans to make this 
available to EM vessels as soon as possible.

Changes From the Proposed Rule

    NMFS has made the following changes from the proposed rule. NMFS 
revised the regulations to incorporate optimized retention for fixed 
gear vessels (see Item 2 in the preamble). NMFS also revised the fixed 
gear retention regulations at Sec.  660.604(p)(2) to be consistent with 
the Seabird Avoidance Program (see Item 5 in the preamble). NMFS also 
clarified the regulations governing VMPs and submission and handling of 
EM data to use more general language that would encompass a range of 
tools that may be used. NMFS also clarified the regulations governing 
EM service provider and EM vessel owner applications to make clear 
under what circumstances EM certifications expire and must be renewed 
(see Item 5 of the preamble). NMFS removed the requirement for EM 
service providers to have insurance for potential claims filed by their 
employees under the Jones Act and the U.S. Longshore and Harbor 
Workers' Compensation Act, because we determined that these acts do not 
apply to EM providers. Finally, NMFS made a number of other minor 
clarifications to the regulations in the final rule, as described in 
Item 5.

Classification

    The Administrator, West Coast Region, has determined that the 
approved measures in this final rule are consistent with the Pacific 
Coast Groundfish FMP, MSA, and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    As discussed below in the FRFA, this rule is anticipated to result 
in cost savings and is a deregulatory action under E.O. 13771.
    This final rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    NMFS prepared a FRFA under section 603 of the Regulatory 
Flexibility Act (RFA), which incorporates the initial regulatory 
flexibility analysis (IRFA). A summary of any significant issues raised 
by the public comments in response to the IRFA, and NMFS' responses to 
those comments, and a summary of the analyses completed to support the 
action are addressed below. NMFS also prepared an RIR for this action. 
A copy of the RIR and FRFA are available from NMFS (see ADDRESSES), and 
per the requirements of 5 U.S.C. 604(a), the text of the FRFA follows:

[[Page 31155]]

Final Regulatory Flexibility Analysis

    As applicable, section 604 of the RFA requires an agency to prepare 
a FRFA after being required by that section or any other law to publish 
a general notice of proposed rulemaking and when an agency promulgates 
a final rule under section 553 of Title 5 of the U.S. Code. The 
following paragraphs constitute the FRFA for this action.
    This FRFA incorporates the IRFA, a summary of any significant 
issues raised by the public comments, NMFS' responses to those 
comments, and a summary of the analyses completed to support the 
action. Analytical requirements for the FRFA are described in the RFA, 
section 604(a)(1) through (6). FRFAs contain:
    1. A statement of the need for, and objectives of, the rule;
    2. A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement of the assessment of the 
agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments;
    3. The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
response to the proposed rule, and a detailed statement of any change 
made to the proposed rule in the final rule as a result of the 
comments;
    4. A description and an estimate of the number of small entities to 
which the rule will apply, or an explanation of why no such estimate is 
available;
    5. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record; and
    6. A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    The ``universe'' of entities to be considered in a FRFA generally 
includes only those small entities that can reasonably be expected to 
be directly regulated by the action. If the effects of the rule fall 
primarily on a distinct segment of the industry, or portion thereof 
(e.g., user group, gear type, geographic area), that segment will be 
considered the universe for purposes of this analysis.
    In preparing a FRFA, an agency may provide either a quantifiable or 
numerical description of the effects of a rule (and alternatives to the 
rule), or more general descriptive statements, if quantification is not 
practicable or reliable.

Need for and Objective of This Final Rule

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule, is contained in 
the preambles to the proposed rule and this final rule and is not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    NMFS published the proposed rule on September 6, 2016 (81 FR 
61161). An IRFA was prepared and summarized in the Classification 
section of the preamble to the proposed rule. The comment period on the 
proposed rule ended on October 6, 2016. NMFS received 6 comment letters 
on the proposed rule. Two comments raised significant issues with 
respect to the economic analysis, asserting that NMFS' analysis was 
deficient because it did not consider a significant alternative and did 
not include some future costs. The Chief Counsel for Advocacy of the 
SBA did not file any comments on the IRFA or the proposed rule. NMFS' 
response to all comments received on the proposed rule, including those 
that raised significant issues or commented on the economic analyses 
summarized in the IRFA can be found in the ``Comments and Responses'' 
section of this rule and is not repeated here.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    This regulatory amendment impacts mainly commercial harvesting 
entities engaged in the groundfish limited entry trawl fishery. 
Although this action proposes an EM program for only two components of 
the limited entry trawl fishery--the Pacific whiting fishery and the 
fixed gear shorebased IFQ fishery--any limited entry trawl vessel may 
participate in these components, provided they comply with its 
requirements, and therefore may be eligible to use EM. 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, this IRFA analyzes impacts to the entire trawl fleet.
    A general description of the limited entry trawl fishery and catch 
share program is contained in the preamble to this section. Most recent 
permit information indicates that there are approximately 175 limited 
entry trawl permits. According to information from the Northwest 
Fishery Science Center Economic Data Collection Program, in 2014, the 
fourth year of the catch share program, there were 102 catcher vessels 
that participated in the West Coast Groundfish Trawl Catch Share 
program. Catcher vessels generated $85 million in income and 954 jobs 
from deliveries of fish caught in the catch share program. Catcher 
vessels spent an average of 62 days fishing in the catch share program 
and spent an average of 80 additional days fishing in non-catch share 
fisheries. West Coast catcher vessels deliver to ports in Washington, 
Oregon, California, and at-sea; the two ports with the highest landings 
in 2014 were Astoria and Newport, both in Oregon. An average of 2.4 
crew members worked aboard each West Coast catcher vessel, each earning 
an average compensation of $54,500. In 2014, 31 percent of vessels were 
owner-operated at least part of the year. The average ex-vessel revenue 
per vessel from participation in the catch share program was $646,000. 
Average variable cost net revenue (ex-vessel revenue minus variable 
costs) per vessel was $256,000 from participation in the catch share 
program, and the fleet-wide variable cost net revenue was $26.2 
million. Average total cost net revenue (ex-vessel revenue minus 
variable costs and fixed costs) per vessel was $127,000 and the fleet-
wide total cost net revenue was $12.9 million (Northwest Fisheries 
Science Center (NWFSC), 2014; http://www.pcouncil.org/wp-content/uploads/2016/06/G5b_NMFS_Rpt4_MS_ElecVer_JUN2016BB.pdf). It should be 
noted that some industry members have questioned the results of 
economic data collection (EDC) data which is based on cost-earnings 
surveys where all participants are required to respond to. However, 
NMFS' NWFSC economists conduct extensive QA/QC of the data and it 
represents the best available scientific information on costs in the 
fishery.
    With respect to monitoring costs, the NWFSC 2014 EDC report states 
the following: ``One other change resulting from the implementation of 
the catch share program was a shift to 100% observer coverage with 
partial industry funding. Prior to catch shares, there was 
approximately 20% observer coverage, paid for by NMFS'' (page 16 of the

[[Page 31156]]

report https://www.nwfsc.noaa.gov/research/divisions/fram/documents/EDC_Catcher_Vessel_Report_October_2016.pdf). The report noted that in 
order to lessen the cost of transitioning to the required 100-percent 
observer coverage, catcher vessels received a maximum of $328.50 per 
day in 2011 and 2012, $256 per day in 2013, $216 per day in 2014, and 
$108 per day in 2015 with NMFS funding ending in 2015. Catcher vessels 
spent on average $14,400 on observer coverage (excluding the NMFS 
funding) while operating in the catch share program in 2014. Note that 
in 2011, observer costs represented 0.6 percent of total vessel 
operational costs, and this increased to 2.8 percent in 2014. Currently 
the industry is paying about $500 per day for observers.
    This rule would apply to those entities that elect to use EM in 
lieu of observers. In 2015, a total of 36 vessels participated in the 
EM EFP program. This total includes 20 vessels that participated in the 
Pacific whiting fishery (11 that participated in both the shorebased 
and mothership sectors, 9 that fished only in mothership) and 7 fixed 
gear vessels. This is likely an underestimate of the number of vessels 
that would use EM in the future. For RFA purposes only, NMFS has 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily engaged in commercial fishing (NAICS 
code 11411) is classified as a small business if it is independently 
owned and operated, is not dominant in its field of operation 
(including its affiliates), and has combined annual receipts not in 
excess of $11 million for all its affiliated operations worldwide. For 
for-hire fishing and fish processing entities, the Small Business 
Administration (SBA) defines a small business as one that is: 
Independently owned and operated; not dominant in its field of 
operation; has annual receipts not in excess of $7.0 million in the 
case of for-hire fishing entities; or if it has fewer than 500 
employees in the case of fish processors, or 100 employees in the case 
of fish dealers. When applying for their permits, entities were asked 
to classify themselves as a small business based on the finfish 
standard of $20.5 million. Only 5 indicated that they were ``large'' 
businesses and thus would continue to be large businesses under the 
$11.0 million standard. In 2015, ex-vessel revenues for all west coast 
fisheries for the remaining vessels ranged from $1,000 to $1.4 million. 
In 2014, ``other fisheries revenue'' collected on these vessels ranged 
from $0 to $5.0 million. Based on these ranges, NMFS concludes that the 
remaining vessels would be considered ``small'' even after factoring in 
the possibility of the vessels participating in Alaska fisheries.

Impacts of the Action on Small Entities

    This action allows vessels in the groundfish fishery to use EM in 
place of observers, and the no action alternative, which would not 
create an EM option. The proposed regulatory amendment also considered 
several sub-options for design elements within the preferred 
alternative, which are described in the accompanying EA and summarized 
in the preamble to the proposed rule and are not repeated here. This 
final rule implements the Council's preferred alternative as originally 
proposed.
    This final rule is presenting a choice to fishermen--they can 
either continue to pay for 100-percent observer coverage or elect to 
pay for EM (i.e., equipment, maintenance, and video review). Using 2015 
EFP cost estimates developed jointly by PSMFC and NMFS, NMFS developed 
a model for assessing the vessel, fleet, and government costs from the 
preferred alternative. The results indicate economic impacts on small 
entities from the preferred alternative would be positive as these 
entities would have a choice between hiring an observer and using EM. 
The current cost of an observer is approximately $500 per day. 
Presumably, vessel owners would choose between using an observer or EM 
based on relative costs and operational flexibility. NMFS estimates 
indicate fixed gear vessels will save approximately $98 per day, 
mothership catcher vessels $159 per day, and shoreside vessels $330, 
using EM. Vessels that participated in the EFPs already own EM systems 
(most whiting vessels and approximately half of the fixed gear 
vessels), so they may see a greater cost savings compared to new 
entrants, until such time that the cameras need to be replaced. Annual 
vessel estimates show fixed gear and mothership catcher vessels saving 
$3,000 to $4,000 and shoreside whiting vessels saving $24,000 per year, 
relative to the cost of observers. Annual fleet estimates show similar 
results.
    In addition to the direct costs of the program, vessel owners would 
be responsible for reimbursing NMFS for its incremental costs for 
administering the EM program. NMFS collects cost recovery fees to cover 
the incremental costs of management, data collection, and enforcement 
of the trawl rationalization program. Fees are limited to a maximum of 
3 percent of ex-vessel revenues. NMFS' incremental costs for 
administering the shorebased sector already exceed 3 percent, so the 
shorebased sector would not be likely to see a change in fees from the 
preferred alternative in the short term. The mothership sector fees are 
currently below 3 percent of ex-vessel revenue, so NMFS would be able 
to recover this sector's portion of EM program costs by increasing the 
fees.
    As mentioned in the preamble to this final rulethe, NMFS intends to 
fund PSMFC to conduct the video review through 2020, contingent on 
available funding, while the standards and protocols for third party 
service providers are developed. The requirement for industry to fund 
the video review would take effect in 2021. When video review 
responsibilities shift to third party providers, NMFS' responsibilities 
would be reduced to oversight and quality assurance, which may include 
auditing the service providers' video review results. To conservatively 
estimate government costs and corresponding fee increases, NMFS assumes 
that service providers would review 100 percent of the video and that 
NMFS would audit 50 percent of the video. Government costs include 
video review and storage costs for trips that NMFS reviewed as part of 
its audit or for enforcement purposes, as well as program management 
costs, statistician costs, database management, and overhead. With the 
full transition in 2021, NMFS estimates the government costs would be 
approximately $286,000 per year. Under current fee rates, only the 
portion of the costs related to the mothership catcher vessel fleet 
would be recouped by the cost recovery fee, which would result in an 
increase of 0.02 percent. NMFS estimates that compared to the costs of 
observers, the preferred alternative would still present a lower cost 
option for whiting and fixed gear vessels.
    Under Alternative 2, seven sub-options were developed to address 
various aspects of program design. These sub-options are summarized in 
the preamble to the proposed rule. Generally speaking, the Council's 
sub-options would either have no effect on the overall cost of the 
program (sub-options A2, D1, E1), reduce the cost of the program (sub-
options E1, B1), or provide industry additional flexibility (sub-
options C2, F1, G1-Fixed Gear, G2-Whiting).

Measures Proposed To Mitigate Adverse Economic Impacts of the Final 
Rule

    There are no significant alternatives to the final rule that would 
accomplish the stated objectives and that minimize any significant 
economic impact of the final

[[Page 31157]]

rule on small entities. Alternatives that were considered and rejected, 
and the reason the Council or NMFS rejected them, are summarized in 
Section 3.3 of the EA. The other sub-options considered, and the 
reasons the Council and NMFS did not propose them, are summarized in 
the preamble to the proposed rule. As fishermen would be given a choice 
between two alternative monitoring systems (observers versus EM), this 
rule is likely to have positive effects on small entities. NMFS 
believes that the preferred alternative for this rule would not have a 
significant impact when comparing small versus large businesses in 
terms of disproportionality and profitability given available 
information. These regulations are likely toreduce fishing costs for 
both small and large businesses. Nonetheless, NMFS has prepared this 
FRFA. The final rule and alternatives are described in detail in the 
Council's regulatory amendment and the accompanying EA and RIR/IRFA, 
and the preamble to the proposed rule (see ADDRESSES).

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    The final rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement will be submitted to OMB for approval. The 
final rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    This final rule adjusts notification requirements for groundfish 
vessels using EM and first receivers receiving catch from EM trips. 
Vessels will now be required to declare the type of monitoring they 
will use on a given trip--observer or EM. This change is necessary to 
provide vessels the flexibility to switch between different types of 
monitoring, depending on what is most cost effective and efficient for 
their operation at that time, while allowing NMFS to track which fleets 
vessels are participating in. This change would only add additional 
potential answers to an existing question and not affect the number of 
entities required to comply with the declaration requirement (OMB 
Control Number 0648-0573). Therefore, this change is not be expected to 
increase the time or cost burden associated with this requirement. 
Similarly, the requirement for EM vessels to notify the observer 
program before each trip would be in place of the existing notification 
to an individual vessel's observer provider when using a catch share 
observer, and is not expected to increase the time or cost burden 
associated with the existing notification requirements approved under 
OMB Control Number 0648-0593. The requirement for first receivers to 
report protected and prohibited species landings was previously 
approved under OMB Control Number 0648-0619 and this action is not 
expected to change the time or cost burden or number of entities 
associated with this requirement.
    This final rule also requires vessel owners to submit an 
application to NMFS to be approved to use EM in place of an observer. 
This application includes an application form, the purchase or lease 
and installation of an EM system, a VMP, and attendance of a mandatory 
training session. The time burden associated with these requirements is 
estimated to be approximately 10 hours per vessel owner to prepare and 
submit the application package, install the EM system, and attend 
training. The training would be given via webinar to maximize 
convenience and minimize travel costs for vessel captains. The cost of 
an EM system and installation is estimated at $12,000 per vessel. 
Approximately half the active vessels in the fleet have already 
received EM units through their participation in the EFPs and would not 
need to purchase a new unit to participate in the program. Vessel 
owners would likely have to purchase new EM units every 5-10 years, 
depending on the life of the equipment. Vessel owners would also be 
responsible for maintaining the EM units in good working order, likely 
through a service contract with a NMFS-permitted EM service provider. 
NMFS estimates the annual average cost burden per vessel from this 
requirement to be approximately $5,600.
    If denied an EM Authorization, vessel owners would be able to 
appeal NMFS' decision through the existing appeal process at Sec.  
660.25(g). NMFS estimates the time burden associated with preparing and 
submitting an appeal to be approximately 4 hours per entity, with a 
cost of $3.00 for copies and postage. Vessel owners would be able to 
make modifications to their VMPs during the year by submitting a 
request and amended VMP to NMFS. These requests would be made 
electronically via email and, therefore, would not be expected to have 
a cost burden associated with them. NMFS estimates the time burden 
associated with this requirement from preparing and submitting the 
request to be 0.5 hours per request per entity.
    Vessel owners would be required to renew their EM authorization 
annually. This is necessary to ensure that the vessel owners' contact 
information, VMPs, and fishing plans remain up to date. Industry 
participants raised concerns with the time burden associated with 
having to complete the application process each year, as was proposed 
in an earlier draft of the regulations. To address these concerns, NMFS 
is proposing to instead provide vessel owners with pre-filled renewal 
forms and their current VMPs to review and certify as correct in a 
simplified renewal process. NMFS estimates a time burden of 
approximately 0.5 hours per entity to review and return the pre-filled 
package.
    Vessel operators would be required to complete and submit a logbook 
for each trip, with an estimated time burden of 10 minutes per 
submission. The logbooks are provided by NMFS and state agencies, so 
the cost of requirement mainly derives from postage at $0.46 per 
submission. To eliminate duplication, NMFS would allow vessel operators 
to submit a state logbook that contains all the required information. 
Vessel operators would also be required to submit the EM data to the 
vessels' EM service providers using a method that provides a return 
receipt. This is necessary for NMFS and vessel operators to be able to 
track submissions. This requirement has an average cost of $15.00 per 
submission and a time burden of 10 min to retrieve and package the hard 
drive for mailing.
    EM service providers would be required to apply to receive a permit 
from NMFS to provide EM services for vessels. EM service providers 
would be required to submit an application to NMFS that includes an 
application form, an EM Service Plan that describes how they plan to 
provide services, and statements of prior experience and 
qualifications. If requested, the EM service provider may also be 
required to provide NMFS copies of contracts with vessel owners and 
standard operating procedures and manuals describing their operations 
in more detail. In an earlier draft of the regulations, NMFS proposed 
requirements very similar to those for observer service providers, with 
minimal requirements for the provider and NMFS training and certifying 
individual observers. However, at the November 2015 Council meeting EM 
service providers commented that different service providers may have 
different models and that the observer model is not appropriate for EM 
services providers. Some EM service providers may employ less highly 
trained analysts to initially review video and a biologist to verify 
species identification, whereas another service provider may employ 
highly

[[Page 31158]]

trained biologists to do it all. They recommended that the regulations 
provide more flexibility for different business models. This final rule 
contains an expanded application process, incorporating an EM Service 
Plan, to provide the flexibility that service providers seek. The 
addition of an EM Service Plan allows NMFS to consider different 
business models proposed by different providers as meeting the EM 
program requirements. However, this requires EM service providers to 
prepare and submit a detailed service plan and other documents, in 
order to provide NMFS with sufficient information to evaluate them. 
NMFS estimates the time and cost burden associated with preparing and 
submitting the permit application to be 47 hours and $30 (for copies 
and postage). Most likely much of this information would be submitted 
electronically. If requested by NMFS, EM service providers would be 
required to provide NMFS two EM units and two copies of any software 
for EM data analysis for a minimum of 90 days for evaluation. Due to 
their use by NMFS, the value of the EM units may depreciate and the EM 
service providers may not be able to resell the EM units for their full 
value. NMFS estimates the EM providers would be able to recoup 50 
percent of the EM unit value at approximately $5,000 per unit. This 
results in a total cost associated with this requirement at $10,215 per 
provider (including $215 in materials and postage to send the equipment 
to NMFS).
    An EM service provider would be able to appeal a permit decision to 
NMFS following the procedures at Sec.  660.19. NMFS estimates the time 
and cost burden of preparing and submitting an appeal to be 4 hours and 
$5 per entity. EM service providers would be able to make modifications 
to their EM Service Plans during the year by submitting a request and 
amended EM Service Plan to NMFS via email (2 hours per submission). EM 
service providers would be required to renew their permits annually. At 
the April 2016 Council meeting, EM service providers requested a longer 
effective period to provide more stability for planning for future 
fishing years. In response to that request, this final rule contains an 
abbreviated renewal process in which NMFS would provide pre-filled 
renewal forms and the current EM Service Plan for the EM service 
provider to review and certify. This would reduce the time burden for 
EM service providers, while ensuring NMFS has up-to-date information. 
NMFS has also revised the final regulations to make provider permits 
effective for 2 years. NMFS estimates the annual time and cost burden 
of the renewal to be 1 hour and $5 per entity.
    EM service providers would be responsible for providing technical 
assistance and maintenance services to their contracted EM vessels. EM 
service providers would be required to provide technical support to 
vessels at sea, with an annual time burden of approximately 7 hours per 
entity. Under the terms of their permit, EM service providers and their 
employees would also be required to report instances of non-compliance 
by vessel owners and intimidation or harassment of EM technicians to 
NMFS. The estimated burden for reporting these events is 30 minutes per 
report (18 hours per entity per year). Employees of EM service 
providers have to respond to inquiries by NMFS staff or authorized 
officers on technical or compliance issues with an estimated burden of 
1 hour per trip (350 hours per entity per year).
    On behalf of their contracted vessels, EM service providers would 
also be responsible for reviewing vessels' videos from trips, preparing 
and submitting vessels' catch data and compliance reports to NMFS, and 
providing feedback to vessel operators on their catch handling, camera 
views, etc. NMFS would prepare burden estimates for these requirements 
for OMB approval and public comment through a Federal Register notice 
in 2020 or earlier.
    Public reporting burden for these requirements includes the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a final regulatory flexibility 
analysis, the agency shall publish one or more guides to assist small 
entities in complying with the rule, and shall designate such 
publications as ``small entity compliance guides.'' The agency shall 
explain the actions a small entity is required to take to comply with a 
rule or group of rules. As part of this rulemaking process, a small 
entity compliance guide (the guide) was prepared. Copies of this final 
rule are available from the West Coast Regional Office (see ADDRESSES), 
and the guide will be included in a public notice sent to all members 
of the groundfish email group. To sign-up for the groundfish email 
group, click on the ``subscribe'' link on the following website: http://www.westcoast.fisheries.noaa.gov/publications/fishery_management/groundfish/public_notices/recent_public_notices.html. The guide and 
this final rule will also be available on the West Coast Region's 
website (see ADDRESSES) and upon request.
    Send comments regarding these burden estimates or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS (see ADDRESSES), and by email to [email protected], 
or fax to 202-395-5806.
    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. All currently approved NOAA 
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
    Pursuant to Executive Order 13175, this rule was developed after 
meaningful collaboration with tribal officials from the area covered by 
the FMP. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting 
members of the Council must be a representative of an Indian tribe with 
federally recognized fishing rights from the area of the Council's 
jurisdiction. The regulations do not require the tribes to change from 
their current practices.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian Fisheries.

    Dated: June 18, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated 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)(ii) through (iv) to read as 
follows:


Sec.  660.13  Recordkeeping and reporting.

* * * * *
    (d) * * *

[[Page 31159]]

    (4) * * *
    (ii) A declaration report will be valid until another declaration 
report revising the existing gear, monitoring, or fishery, declaration 
is received by NMFS OLE. The vessel operator must send a new 
declaration report before leaving port on a trip that meets one of the 
following criteria:
    (A) A gear type that is different from the gear type most recently 
declared for the vessel will be used, or
    (B) A monitoring type that is different from the monitoring type 
most recently declared for the vessel will be used, or
    (C) A vessel will fish in a fishery other than the fishery most 
recently declared.
    (iii) During the period of time that a vessel has a valid 
declaration report on file with NMFS OLE, it cannot fish with a gear 
and monitoring type other than a gear type and monitoring type declared 
by the vessel or fish in a fishery other than the fishery most recently 
declared.
    (iv) Declaration reports will include: The vessel name and/or 
identification number, gear type, and monitoring type where applicable, 
(as defined in paragraph (d)(5)(iv)(A) of this section). Upon receipt 
of a declaration report, NMFS will provide a confirmation code or 
receipt to confirm that a valid declaration report was received for the 
vessel. Retention of the confirmation code or receipt to verify that a 
valid declaration report was filed and the declaration requirement was 
met is the responsibility of the vessel owner or operator. Vessels 
using nontrawl gear may declare more than one gear type with the 
exception of vessels participating in the Shorebased IFQ Program (i.e. 
gear switching), however, vessels using trawl gear may only declare one 
of the trawl gear types listed in paragraph (d)(5)(iv)(A) of this 
section on any trip and may not declare nontrawl gear on the same trip 
in which trawl gear is declared.
    (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,
    (5) Limited entry midwater trawl, Pacific whiting shorebased IFQ, 
observer,
    (6) Limited entry midwater trawl, Pacific whiting shorebased IFQ, 
electronic monitoring,
    (7) Limited entry midwater trawl, Pacific whiting catcher/processor 
sector,
    (8) Limited entry midwater trawl, Pacific whiting mothership sector 
(catcher vessel or mothership), observer,
    (9) Limited entry midwater trawl, Pacific whiting mothership sector 
(catcher vessel), electronic monitoring,
    (10) Limited entry bottom trawl, shorebased IFQ, not including 
demersal trawl,
    (11) Limited entry demersal trawl, shorebased IFQ,
    (12) Non-groundfish trawl gear for pink shrimp,
    (13) Non-groundfish trawl gear for ridgeback prawn,
    (14) Non-groundfish trawl gear for California halibut,
    (15) Non-groundfish trawl gear for sea cucumber,
    (16) Open access longline gear for groundfish,
    (17) Open access Pacific halibut longline gear,
    (18) Open access groundfish trap or pot gear,
    (19) Open access Dungeness crab trap or pot gear,
    (20) Open access prawn trap or pot gear,
    (21) Open access sheephead trap or pot gear,
    (22) Open access line gear for groundfish,
    (23) Open access HMS line gear,
    (24) Open access salmon troll gear,
    (25) Open access California Halibut line gear,
    (26) Open access Coastal Pelagic Species net gear,
    (27) Other gear,
    (28) Tribal trawl, or
    (29) Open access California gillnet complex gear.
* * * * *

0
3. In Sec.  660.19, revise paragraph (a) to read as follows:


Sec.  660.19  Appeals process for catch monitors, observers, and 
provider permits.

    (a) Allowed appeals. This section describes the procedure for 
appealing IADs described at Sec. Sec.  660.17(g), 660.18(d) and (f), 
660.140(h), 660.150(j), 660.160(g), 660.603(b)(3) for catch monitor 
decertification, observer decertification, provider permit expirations 
due to inactivity, and EM service provider permit denials. Any person 
whose interest is directly and adversely affected by an IAD may file a 
written appeal. For purposes of this section, such person will be 
referred to as the ``applicant.''
* * * * *

0
4. In Sec.  660.130, revise paragraphs (d)(2)(ii) and (d)(3)(ii) to 
read as follows:


Sec.  660.130  Trawl fishery--management measures.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Catcher vessels. All catch must be sorted to the species 
groups specified in paragraph (d)(1) of this section for vessels with 
limited entry permits, except those engaged in maximized retention 
while declared into a Pacific whiting IFQ trip. The catch must not be 
discarded from the vessel and the vessel must not mix catch from hauls 
until the observer has sampled the catch, unless otherwise allowed 
under the EM Program requirements at Sec.  660.604 of subpart J. 
Prohibited species must be sorted according to the following species 
groups: Dungeness crab, Pacific halibut, Chinook salmon, other salmon. 
Non-groundfish species must be sorted as required by the state of 
landing.
    (3) * * *
    (ii) If sorting occurs on a catcher vessel in the MS Co-op Program, 
the catch must not be discarded from the vessel and the vessel must not 
mix catch from hauls until the observer has sampled the catch, or 
unless otherwise allowed under the EM Program requirements at Sec.  
660.604 of subpart J.
* * * * *

0
5. In Sec.  660.140, revise paragraph (g)(1) and add paragraph 
(h)(1)(i)(A)(4) to read as follows:


Sec.  660.140   Shorebased IFQ Program.

* * * * *
    (g) * * *
    (1) General. Shorebased IFQ Program vessels may discard IFQ 
species/species groups, provided such discards are accounted for and 
deducted from QP in the vessel account. With the exception of vessels 
on a declared Pacific whiting IFQ trip and engaged in maximized 
retention, and vessels fishing under a valid EM Authorization in 
accordance with Sec.  660.604 of subpart J, prohibited and protected 
species must be discarded at sea; Pacific halibut must be discarded as 
soon as practicable and the discard mortality must be accounted for and 
deducted from IBQ pounds in the vessel account. Non-IFQ species and 
non-groundfish species may be discarded at sea, unless otherwise 
required by EM Program requirements at Sec.  660.604 of subpart J. The 
sorting of catch, the weighing and discarding of any IBQ and IFQ 
species, and the retention of IFQ species must be monitored by the 
observer or EM system.
* * * * *
    (h) * * *
    (1) * * *
    (i) * * *
    (A) * * *
    (4) Is exempt from the requirement to carry an observer if the 
vessel has a

[[Page 31160]]

valid EM Authorization and is fishing with EM under Sec.  660.604 of 
subpart J.
* * * * *

0
6. In Sec.  660.150, revise paragraphs (i) and (j)(1)(i)(B) to read as 
follows:


Sec.  660.150  Mothership (MS) Coop Program.

* * * * *
    (i) Retention requirements. Catcher vessels participating in the MS 
Co-op Program may discard minor operational amounts of catch at sea if 
the observer or EMS has accounted for the discard (i.e., a maximized 
retention fishery).
    (j) * * *
    (1) * * *
    (i) * * *
    (B) Catcher vessels. Any vessel delivering catch to any MS vessel 
must carry one certified observer each day that the vessel is used to 
take groundfish, unless the catcher vessel has a valid EM Authorization 
and is fishing with EM under Sec.  660.604 of subpart J.
* * * * *

0
7. Add subpart J to part 660 read as follows:
Subpart J--West Coast Groundfish Electronic Monitoring Program
Sec.
660.600 Applicability.
660.601 Definitions.
660.602 Prohibitions.
660.603 Electronic monitoring provider permits and responsibilities.
660.604 Vessel and first receiver responsibilities.

Subpart J--West Coast Groundfish Electronic Monitoring Program


Sec.  660.600  Applicability.

    (a) General. This subpart contains requirements for vessels using 
EM in lieu of observers, as authorized under Sec.  660.140(h)(1)(i) 
(Shorebased IFQ Program) and Sec.  660.150(j)(1)(i) (MS Co-op Program), 
and requirements for EM service providers. Vessel owners, operators, 
and managers are jointly and severally liable for a vessel's compliance 
with EM requirements under this subpart. This subpart also contains 
requirements for a first receiver receiving catch from a trip monitored 
by EM (see Sec.  660.604(u)). The table below provides references to 
the sections that contain vessel owner, operator, first receiver, and 
service provider responsibilities.

------------------------------------------------------------------------
                West coast groundfish fishery                   Section
------------------------------------------------------------------------
(1) Limited entry trawl fishery:
  (i) Vessel owners.........................................     660.604
  (ii) Vessel operators.....................................     660.604
  (iii) First receivers.....................................     660.604
  (iv) Service providers....................................     660.603
(2) [Reserved]..............................................
------------------------------------------------------------------------

    (b) EM program purpose. The purpose of the EM program is to provide 
NMFS with the best scientific information available 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 Co-op Program (Sec.  660.150). NMFS will develop EM 
Program Guidelines, which will document best practices and other 
information that NMFS will use to evaluate proposed service and vessel 
monitoring plans submitted by EM service providers and vessel owners 
under this subpart, and to evaluate the performance of EM service 
providers and vessels, in meeting the requirements of this subpart to 
achieve the purpose of the EM program. NMFS will develop the EM Program 
Guidelines in consultation with the Council and publish notice of their 
availability in the Federal Register. NMFS will maintain the EM Program 
Guidelines on its website and make them available to vessel owners and 
operators and EM service providers to assist in developing service 
plans and vessel monitoring plans that comply with the requirements of 
this subpart and meet the purpose of the EM program.


Sec.  660.601   Definitions.

    These definitions are specific to this subpart. General groundfish 
definitions are found at Sec.  660.11, subpart C, and trawl fishery 
definitions are found at Sec.  660.111, subpart D.
    Active sampling unit means the portion of the groundfish fleet in 
which an observer coverage plan is being applied.
    Discard control point means the location on the vessel designated 
by a vessel operator where allowable discarding may occur.
    Discard event means a single occurrence of discarding of fish or 
other species.
    Electronic Monitoring or EM consists of the use of an electronic 
monitoring system (EMS) to passively monitor fishing operations through 
observing or tracking.
    Electronic Monitoring Authorization means the official document 
provided by NMFS that allows a vessel with a limited entry trawl permit 
to use electronic monitoring under the provisions of this subpart.
    Electronic Monitoring System Certification Form means the official 
document provided by NMFS, signed by a representative of a NMFS-
permitted electronic monitoring service provider that attest that an EM 
system and associated equipment meets the performance standards defined 
at Sec.  660.604(j) of this subpart, as required by Sec.  
660.604(e)(3)(i).
    EM data means the information output of the Electronic Monitoring 
System (e.g., imagery, sensor data, and other associated data files).
    EM dataset means a collection of EM data from a single EM trip or 
group of EM trips.
    EM data processing means the review, interpretation, and analysis 
of EM data and associated meta data.
    EM Program means the Electronic Monitoring Program of the West 
Coast Region, National Marine Fisheries Service.
    EM Service Plan means the document required under Sec.  660.603 
that describes in detail how the EM service provider will provide EM 
services.
    EM service provider means any person, including their employees or 
agents, that is granted a permit by NMFS to provide EM services for 
vessels as required under Sec.  660.603 and Sec.  660.604.
    Electronic Monitoring System or EMS means a data collection tool 
that uses a software operating system connected to an assortment of 
electronic components, including video recorders, to create a 
collection of data on vessel activities.
    EM technician means an employee of the EM service provider that 
provides support for EM systems and technical assistance.
    EM trip means any fishing trip for which electronic monitoring is 
the declared monitoring type.
    Initial Administrative Determination (IAD) means a formal, written 
determination made by NMFS on an application or permit request that is 
subject to an appeal within NMFS.
    Non-trawl shorebased IFQ vessel means a vessel on a declared 
limited entry groundfish non-trawl, shorebased IFQ trip.
    Pacific whiting fishery refers to the Pacific whiting primary 
season fisheries described at Sec.  660.131. The Pacific whiting 
fishery is composed of vessels participating in the C/P Co-op Program, 
the MS Co-op Program, or the Pacific whiting IFQ fishery.
    Pacific whiting IFQ fishery is composed of vessels on Pacific 
whiting IFQ trips.
    Pacific whiting IFQ trip means a trip in which a vessel uses 
midwater groundfish trawl gear during the dates of the Pacific whiting 
primary season to target Pacific whiting, and Pacific

[[Page 31161]]

whiting constitutes 50 percent or more of the catch by weight at 
landing as reported on the state landing receipt. Vessels on Pacific 
whiting IFQ trips must have a valid declaration for limited entry 
midwater trawl, Pacific whiting shorebased IFQ.
    Shorebased IFQ Program or Shorebased IFQ sector, refers to the 
fishery described at Sec.  660.140, subpart D, and includes all vessels 
on IFQ trips.
    Vessel Monitoring Plan (VMP) means the document that describes how 
fishing operations on the vessel will be conducted and how the EM 
system and associated equipment will be configured to meet the 
performance standards and purpose of the EM Program.


Sec.  660.602  Prohibitions.

    In addition to the general prohibitions specified in Sec.  600.725 
of this chapter, it is unlawful for any person to:
    (a) Electronic monitoring program.--(1) Make a false or inaccurate/
incorrect statement on an application for issuance, renewal, or changes 
to an EM Authorization or NMFS-accepted VMP.
    (2) Fish for or land fish from a trip without electronic monitoring 
or observer coverage when a vessel is required to carry electronic 
monitoring or an observer under Sec. Sec.  660.140(h) or 660.150(j).
    (3) Fish for or land fish from a trip taken under electronic 
monitoring without a valid EM Authorization and NMFS-accepted vessel 
monitoring plan onboard, and a valid gear and monitoring declaration 
with NMFS OLE as required by Sec.  660.604(c)(1) and Sec.  660.604(m).
    (4) Fail to comply with the terms of a NMFS-accepted VMP.
    (5) Fail to notify the NMFS West Coast Groundfish Observer Program 
at least 48-hours prior to departing port of the vessel operator's 
intent to take a trip under EM, as required by Sec.  660.604(n).
    (6) Fail to conduct a pre-departure test of the EM system prior to 
departing port as required by Sec.  660.604(l)(2).
    (7) Fish on an EM trip without a fully functional EM system, unless 
authorized by a NMFS-accepted VMP as required by Sec.  660.604(l)(3).
    (8) Fail to make the EM system, associated equipment, logbooks, EM 
data, and other records available for inspection immediately upon 
request by NMFS, its agent, or authorized officers, as required by 
Sec. Sec.  660.604(o) and 660.604(t).
    (9) Discard species other than those allowed to be discarded as 
specified at Sec.  660.604(p).
    (10) Fail to handle fish and other marine organisms in a manner 
that enables the EM system to record it as required by Sec.  
660.604(r).
    (11) Fail to submit complete and accurate logbook(s) and EM data 
for each EM trip as specified at Sec.  660.604(s),
    (12) Tamper with, disconnect, damage, destroy, alter, or in any way 
distort, render useless, inoperative, ineffective, or inaccurate any 
component of the EM system or associated equipment.
    (13) Assault, resist, oppose, impede, intimidate, harass, sexually 
harass, bribe, or interfere with an EM service provider, EM field 
services staff, or EM data processing staff.
    (14) Interfere with or bias the sampling procedure employed by EM 
data processing staff including either mechanically or manually sorting 
or discarding catch outside of camera view or inconsistent with the 
NMFS-accepted VMP.
    (15) Fail to meet the vessel owner or operator responsibilities 
specified in section 660.604.
    (16) Fail to meet the first receiver responsibilities specified at 
Sec.  660.604(u).
    (17) Fail to meet the EM service provider responsibilities 
specified in section Sec.  660.603.
    (18) Fish without an observer when a vessel is required to carry an 
observer under subpart J of this part if:
    (i) The vessel is inadequate for observer deployment as specified 
at Sec.  600.746 of this chapter;
    (ii) The vessel does not maintain safe conditions for an observer 
as specified at Sec.  660.604(n);
    (iii) NMFS, the observer provider, or the observer determines the 
vessel is inadequate or unsafe pursuant to vessel responsibilities to 
maintain safe conditions as specified at Sec.  660.604(n);
    (19) Fail to meet the vessel responsibilities and observer coverage 
requirements specified at Sec.  660.604(n).
    (b) [Reserved]


Sec.  660.603  Electronic monitoring provider permits and 
responsibilities.

    (a) General. This section contains requirements for EM service 
providers providing EM services, pursuant to contracts with vessel 
owners whose vessels operate in the Shorebased IFQ Program (Sec.  
660.140) or the MS Co-op Program (Sec.  660.150) and use EM under this 
subpart. A person must obtain a permit and endorsement as provided 
under Sec.  660.603(b) in order to be an EM service provider. An EM 
service provider must:
    (1) Operate under a NMFS-accepted EM Service Plan (see Sec.  
660.603(b)(3)(vii)).
    (2) Provide and manage EM systems, field services, and technical 
assistance as required under Sec.  660.603(k);
    (3) Provide technical and litigation information to NMFS or its 
agent (see Sec.  660.603(l)).
    (4) Provide technical support to contracted fishing vessels 24-
hours per day, seven days per week, and year-round as provided under 
Sec.  660.603(k)(4);
    (5) Provide EM data processing, reporting, and record retention 
services to contracted vessels using EM (see Sec.  660.603(m)).
    (6) Comply with data integrity and security requirements, including 
requirements pertaining to hard drives and data files containing EM 
data, (see Sec.  660.603(n)).
    (b) Provider permits. To be an EM service provider, a person must 
obtain an EM service provider permit and endorsement by submitting an 
application to the NMFS West Coast Region Fisheries Permit Office. A 
person may meet some requirements of this section through a partnership 
or subcontract with another entity, in which case the application for 
an EM service provider permit must include information about the 
partnership. An applicant may submit an application at any time. If a 
new EM service provider, or an existing EM service provider seeking to 
deploy a new EMS or software version, submits an application by June 1, 
NMFS will issue a new permit by January 1 of the following calendar 
year. Applications submitted after June 1 will be processed as soon as 
practicable. NMFS will only process complete applications. Additional 
endorsements to provide observer or catch monitor services may be 
obtained under Sec.  660.18.
    (1) Contents of provider application. To be considered for an EM 
service provider permit and endorsement, the service provider must 
submit a complete application that includes the following information. 
The same information must be included for any partners or 
subcontractors if the applicant intends to satisfy any of the EM 
service provider requirements through a partnership or contractual 
relationship with another entity.
    (i) Certify that the applicant meets the following eligibility 
criteria:
    (A) The EM service provider and its employees do not have a 
conflict of interest as defined at Sec.  660.603(h), and,
    (B) The EM service provider is willing and able to comply with all 
applicable requirements of this section and to operate under a NMFS-
accepted EM Service Plan.
    (ii) Applicant's contact information.
    (iii) Legal name of applicant organization. If the applicant 
organization is a United States business

[[Page 31162]]

entity, include the state registration number.
    (iv) Description of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and employees. List 
all office locations and their business mailing address, business 
phone, fax number, and email addresses. If the applicant is a 
corporation, the articles of incorporation must be provided. If the 
applicant is a partnership, the partnership agreement must be provided.
    (v) A narrative statement describing prior relevant experience in 
providing EM services, technical support, or fishery data analysis 
services, including recruiting, hiring, training, deploying, and 
managing of individuals in marine work environments and of individuals 
working with fishery data, in the groundfish fishery or other fisheries 
of similar scale.
    (vi) A statement signed under penalty of perjury by an authorized 
agent of the applicant about each owner, or owners, board members, and 
officers if a corporation, authorized agents, and employees, regarding:
    (A) Conflict of interest as described in Sec.  660.603(h),
    (B) Criminal convictions,
    (C) Federal contracts they have had and the performance rating they 
received on each contract, and
    (D) Any previous history of decertification or permit sanction 
action while working as an observer, catch monitor, observer provider, 
catch monitor provider, or electronic monitoring provider.
    (vii) EM Service Plan. An EM Service Plan that describes in detail 
how the applicant will provide EM services for vessels. To ensure that 
the EM Program achieves its purpose, NMFS will develop EM Program 
Guidelines (see Sec.  660.600(b)) and use them to evaluate proposed EM 
Service Plans. NMFS may consider alternative, but equivalent, methods 
proposed by EM service providers and vessel owners in their plans to 
meet the requirements of this subpart, if they achieve the purpose of 
the EM program. An EM Service Plan must include descriptions of the 
following (using pictures and diagrams where appropriate):
    (A) Contact information for a primary point of contact for program 
operations inseason;
    (B) A plan for provision of services including communications, 
service locations, response timelines, and procedures for services, 
repairs, technical support, and other program services;
    (C) Procedures for hiring and training of competent program staff 
to carry out EM field services and data services, including procedures 
to maintain the skills of EM data processing staff in:
    (1) Use of data processing software;
    (2) Species identification;
    (3) Fate determination and metadata reporting requirements;
    (4) Data processing procedures;
    (5) Data tracking; and,
    (6) Reporting and data upload procedures.
    (D) Procedures for tracking hard drives and/or data files 
throughout their use cycle, including procedures to ensure the 
integrity and security of hard drives or data files in transit, and for 
removing EM data from hard drives or other medium before returning them 
to the field;
    (E) Procedures for data processing, including tracking of EM 
datasets throughout their processing cycle and documenting any access 
and modifications;
    (F) Procedures for correction and resubmission of EM summary data 
reports and other reports that NMFS has determined are not of 
sufficient quality to meet the purpose of the EM program, as described 
at Sec.  660.603(m)(5), and to ensure that future reports are 
sufficient for use by NMFS.
    (G) Policies on data access, handling, and release to prevent 
unauthorized disclosure of EM data and other records specified in this 
section by the EM provider as required under Sec.  660.603(n);
    (H) Procedures for retention of records as required under Sec.  
660.603(m)(6);
    (I) Identifying characteristics of the EMS to be deployed and the 
video review software to be used in the fishery, including but not 
limited to: Manufacturer, brand name, model name, model number, 
software version and date, firmware version number and date, hardware 
version number and date, monitor/terminal number and date, pressure 
sensor model number and date, drum rotation sensor model number and 
date, and GPS model number and date.
    (J) EM system and software specifications, including a narrative 
statement describing how the EM system and associated equipment meets 
the performance standards at Sec.  660.604(j).
    (K) EM video review software specifications, including a narrative 
statement describing how the software meets the EM Program Guidelines 
and will provide NMFS with data to achieve the purpose of the EM 
Program as defined at Sec.  660.600(b).
    (viii) Provide NMFS the following, if requested:
    (A) Two EM system units loaded with software for a minimum of 90 
calendar days for testing and evaluation.
    (B) Thorough documentation for the EM system, including: User 
manuals, any necessary interfacing software, performance 
specifications, technical support information, and tamperproof or 
tamper evident features.
    (C) The results of at-sea trials of the EM system.
    (D) Two copies of video review and analysis software for a minimum 
of 90 calendar days for testing and evaluation.
    (E) Thorough documentation for the video review and analysis 
software, including: User manuals, performance specifications, and 
technical support information.
    (F) Descriptions of database models and analysis procedures for EM 
data and associated meta data to produce required reports.
    (2) Application evaluation. NMFS may request additional information 
or revisions from the applicant until NMFS is satisfied that the 
application is complete. Complete applications will be forwarded to the 
EM Program for review and evaluation by the EM provider permit review 
board. If the applicant is an entity, the review board also will 
evaluate the application criteria for each owner, board member, 
officer, authorized agent, and employee. NMFS will evaluate the 
application based on the EM Program Guidelines (see Sec.  660.600(b)) 
and the following criteria:
    (i) The applicant's relevant experience and qualifications;
    (ii) Review of any conflict of interest as described in Sec.  
660.603(h);
    (iii) Review of any criminal convictions;
    (iv) Review of the proposed EM Service Plan, including evaluation 
of EM equipment and software;
    (v) Satisfactory performance ratings on any federal contracts held 
by the applicant;
    (vi) Review of any history of decertification or permit sanction as 
an observer, catch monitor, observer provider, catch monitor provider, 
or EM service provider; and,
    (vii) Review of any performance history as an EM service provider.
    (3) Agency determination on an application. Based on a complete 
application, if NMFS determines that the applicant has met the 
requirements of this section, NMFS will issue an initial administrative 
determination (IAD). If the application is approved, the IAD will serve 
as the EM service

[[Page 31163]]

provider's permit and endorsement. If the application is denied, the 
IAD will provide an explanation of the denial in writing. The applicant 
may appeal NMFS' determination following the process at Sec.  660.19.
    (4) Effective dates. The provider permit is valid from the 
effective date identified on the permit until the permit expiration 
date of December 31 of the following year. Provider permit holders must 
renew biennially by following the renewal process specified in 
paragraph (f) of this section.
    (5) Expiration of the provider permit.--(i) Expiration due to 
inactivity. After a period of 24 continuous months during which no EM 
services are provided by the provider in the Pacific coast groundfish 
fishery, NMFS will issue an IAD describing the intent to expire the 
provider permit or to remove the appropriate endorsement(s) and the 
timeline to do so. A provider that receives an IAD may appeal under 
Sec.  660.19. The provider permit and endorsements will remain valid 
until a final agency decision is made or until the permit expiration 
date, whichever is earlier.
    (ii) Expiration due to failure to renew. Failure to renew 
biennially will result in expiration of the provider permit and 
endorsements on the permit expiration date.
    (iii) Invalidation due to lapse in eligibility. NMFS may invalidate 
an EM service provider permit if NMFS determines that the EM service 
provider no longer meets the eligibility criteria defined at paragraph 
(b)(1)(i) of this section. NMFS will first notify the EM service 
provider of the deficiencies in writing and the EM service provider 
must correct the deficiencies following the instructions provided. If 
the deficiencies are not resolved upon review of the first trip 
following the notification, NMFS will notify the EM service provider in 
writing that the provider permit is invalid and that the EM service 
provider is no longer eligible to provide EM services for vessels for 
the remainder of that calendar year. The EM service provider may 
reapply for an EM service provider permit and endorsement for the 
following calendar year.
    (iv) Obtaining a new permit or endorsement following an expiration 
or invalidated permit. A person holding an expired or invalidated 
permit or endorsement may reapply for a new provider permit or 
endorsement at any time consistent with paragraph (b) of this section.
    (c) Changes to a NMFS-accepted EM Service Plan. An EM service 
provider may make changes to a NMFS-accepted EM Service Plan by 
submitting a revised plan or plan addendum to NMFS in writing. NMFS 
will review and accept the change if it meets all the requirements of 
this section. A plan addendum must contain:
    (1) The date and the name and signature of an authorized agent of 
the EM service provider;
    (2) Address, telephone number, fax number and email address of the 
person submitting the addendum;
    (3) A complete description of the proposed EM Service Plan change.
    (d) Change of provider permit ownership and transfer restrictions. 
If an EM service provider changes ownership during the term of an EM 
service provider permit, the new owner must apply for a new provider 
permit.
    (e) Provider permit sanctions. Procedures governing sanctions of 
permits are found at subpart D of 15 CFR part 904.
    (f) Renewing a provider permit. To maintain a valid provider 
permit, provider permit holders must reapply biennially prior to the 
permit expiration date. NMFS will mail a provider permit application 
form to existing permit holders on or about July 15 of the year that 
the permit is due to expire. Providers who want to have their permits 
effective for January 1 of the following calendar year must submit 
their complete application form to NMFS by September 1. If a provider 
fails to renew the provider permit, the provider permit and 
endorsements will expire on the permit expiration date.
    (g) Fees. NMFS may charge a fee to cover administrative expenses 
related to issuance of permits including initial issuance, renewal, 
replacement, and appeals.
    (h) Limitations on conflict of interest for providers and 
employees.--(1) EM service providers and their employees must not have 
a direct financial interest, other than the provision of observer, 
catch monitor, EM, or other biological sampling services, in any 
federal or state managed fisheries, including but not limited to:
    (i) Any ownership, mortgage holder, or other secured interest in a 
vessel, first receiver, shorebased or floating stationary processor 
facility involved in the catching, taking, harvesting or processing of 
fish;
    (ii) Any business involved with selling supplies or services to any 
vessel, first receiver, shorebased or floating stationary processing 
facility; or
    (iii) Any business involved with purchasing raw or processed 
products from any vessel, first receiver, shorebased or floating 
stationary processing facilities.
    (2) EM service providers and their employees must not solicit or 
accept, directly or indirectly, any gratuity, gift, favor, 
entertainment, loan, employment, or anything of monetary value from any 
person who conducts fishing or fish processing activities that are 
regulated by NMFS, or who has interests that may be substantially 
affected by the performance or nonperformance of the provider's 
contractual duties.
    (3) The EM service provider may not employ any person to handle 
hard drives or EM data from a vessel by which the person was previously 
employed in the last two years.
    (4) Provisions of contracts or agreements for remuneration of EM 
services under this section do not constitute a conflict of interest.
    (i) Insurance. The EM service provider must maintain sufficient 
commercial liability insurance to cover bodily injury and property 
damage caused by their employees while on a contracted vessel and State 
Worker's Compensation insurance. The EM service provider shall provide 
copies of these insurance policies to the vessel owner, operator, or 
vessel manager, when requested.
    (j) Warranties. None of the provisions of this section are intended 
to preclude any state or federal statutes or regulations governing 
warranties.
    (k) Field and technical support services. The EM service provider 
must provide and manage EM systems, installation, maintenance and 
technical support, as described below and according to a NMFS-accepted 
EM Service Plan, which is required under Sec.  660.603(b)(1)(vii), 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).
    (1) At the time of installation, the EM service provider must:
    (i) Install an EM system that meets the performance standards under 
Sec.  660.604(j);
    (ii) Ensure that the EM system is set up, wires run, system 
powered, and tested with the vessel in operation;
    (iii) Brief the vessel operator on system operation, maintenance, 
and procedures to follow for technical support or field service;
    (iv) Provide necessary information for the vessel operator to 
complete the VMP, such as images and diagrams of camera views and 
vessel layout, specific information about system settings, and 
designated discard control points; and,
    (v) Complete an EM System Certification Form for the vessel owner.

[[Page 31164]]

    (2) The EM service provider must communicate with vessel operators 
and NMFS to coordinate service needs, resolve specific program issues, 
and provide feedback on program operations.
    (3) The EM service provider must provide maintenance and support 
services, including maintaining an EM equipment inventory, such that 
all deployed EM systems perform according to the performance standards 
at Sec.  660.604(j) and that field service events are scheduled and 
carried out with minimal delays or disruptions to fishing activities.
    (4) The EM service provider must provide technical assistance to 
vessels, upon request, in EM system operation, the diagnosis of the 
cause of malfunctions, and assistance in resolving any malfunctions. 
Technical support must be available 24-hours per day, seven days per 
week, and year-round.
    (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.
    (l) Technical assistance and litigation information. As a 
requirement of its permit, the EM service provider must provide the 
following to NMFS or authorized officers, upon request.
    (1) Assistance in EM system operation, diagnosing and resolving 
technical issues, and recovering corrupted or lost data.
    (2) Responses to inquiries related to data summaries, analyses, 
reports, and operational issues with vessel representatives.
    (3) Technical and expert information, if the EM system/data are 
being admitted as evidence in a court of law. All technical aspects of 
a NMFS-approved EM system may be analyzed in court for, inter alia, 
testing procedures, error rates, peer review, technical processes and 
general industry acceptance. To substantiate the EM system data and 
address issues raised in litigation, an EM service provider must 
provide information, including but not limited to:
    (i) If the technologies have previously been subject to such 
scrutiny in a court of law, a brief summary of the litigation and any 
court findings on the reliability of the technology.
    (ii) [Reserved]
    (4) All software necessary for accessing, viewing, and interpreting 
the data generated by the EM system, including maintenance releases to 
correct errors in the software or enhance the functionality of the 
software.
    (5) Notification NMFS within 24 hours after the EM service provider 
becomes aware of the following:
    (i) Any information, allegations, or reports regarding possible 
harassment of EM provider staff;
    (ii) Any information, allegations, or reports regarding possible EM 
system tampering;
    (iii) Any information, allegations, or reports regarding any action 
prohibited under Sec. Sec.  660.12(f) or 660.602(a)(13); or,
    (iv) Any information, allegations or reports regarding EM service 
provider staff conflicts of interest.
    (6) Notification to NMFS of any change of management or contact 
information or a change to insurance coverage.
    (7) A copy of any contract between the service provider and 
entities requiring EM services;
    (8) Proof of sufficient insurance as defined in paragraph (i);
    (9) Copies of any information developed and used by the EM service 
provider and distributed to vessels, including, but not limited to, 
informational pamphlets, payment notifications, and description of EM 
service provider duties; and,
    (10) EM data and associated meta data, and other records specified 
in this section.
    (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 processing, reporting, and record retention services, as described 
below and according to a NMFS-approved EM Service Plan, which is 
required under Sec.  660.603(b)(1)(vii), 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 according 
to a prescribed coverage level or sampling scheme, as specified by 
NMFS, and determine an estimate of discards for each trip using 
standardized estimation methods specified by NMFS. NMFS will maintain 
manuals for EM data processing protocols on its website.
    (2) The EM service provider must ensure that its data processing 
staff are fully trained in:
    (i) Use of data processing software;
    (ii) Species identification;
    (iii) Fate determination and metadata reporting requirements;
    (iv) Data processing procedures;
    (v) Data tracking; and,
    (vi) Reporting and data upload procedures.
    (3) The EM service provider must track hard drives and EM datasets 
throughout their cycles, including documenting any access and 
modifications. EM data must be removed from hard drives or other medium 
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. The EM service 
provider must provide feedback to vessel representatives, field 
services staff, and NMFS regarding:
    (i) Adjustments to system settings;
    (ii) Changes to camera positions;
    (iii) Advice to vessel personnel on duty of care responsibilities;
    (iv) Advice to vessel personnel on catch handling practices; and,
    (v) Any other information that would improve the quality and 
effectiveness of data collection on the vessel.
    (5) On behalf of vessels with which it has a contract (see Sec.  
660.604(k)), the EM service provider must submit to NMFS 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 Sec.  660.603(b)(1)(vii), 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). 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, 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) Data integrity and security. The EM service provider must 
ensure the integrity and security of vessels' EM data and other records 
specified in this section. The EM service provider and its employees:
    (1) Must not handle or transport hard drives or other medium 
containing EM data except to carry out EM services

[[Page 31165]]

required by this section in accordance with a NMFS-accepted EM Service 
Plan.
    (2) Must not write to or modify any EM hard drive or other medium 
that contains EM data before it has been copied and catalogued.
    (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 section Sec.  660.603(m)(6), or as authorized 
by the owner or operator of the vessel.


Sec.  660.604  Vessel and first receiver responsibilities.

    (a) General. This section lays out the requirements for catcher 
vessels to obtain an exemption to use EM in place of 100-percent 
observer coverage required by the Shorebased IFQ Program (Sec.  
660.140(h)(1)(i)) and MS Co-op Program (Sec.  660.150(j)(1)(i)(B)). 
Requirements are also described for first receivers receiving landings 
from EM trips.
    (b) Vessel Owner Responsibilities. To use EM under this section, 
vessel owners must:
    (1) Obtain an EM Authorization from the NMFS West Coast Region 
Fisheries Permit Office (see Sec.  660.604(e));
    (2) Install an EM system using a NMFS-permitted EM service provider 
that meets performance standards under Sec.  660.604(j);
    (3) Have a signed EM system certification form (see Sec.  
660.604(e)(3)(i));
    (4) Have a NMFS-accepted vessel monitoring plan (see Sec.  
660.604(e)(3)(iii));
    (5) Ensure that the vessel operator attends a mandatory EM 
orientation session provided by the NMFS West Coast Region EM Program 
(NMFS may waive this requirement on a case-by-case basis, such as when 
the vessel operator has prior EM experience);
    (6) Maintain logbooks and other records for three years and provide 
them to NMFS or authorized officers for inspection (see Sec.  
660.604(t)).
    (7) Obtain EM data processing, reporting, and recordkeeping 
services from a NMFS-permitted EM service provider (see Sec.  
660.604(k)).
    (c) Vessel Operator Responsibilities. To use EM under this section, 
vessel operators must:
    (1) Maintain a valid EM Authorization and NMFS-accepted vessel 
monitoring plan onboard the vessel at all times that the vessel is 
fishing on an EM trip or when fish harvested during an EM trip are 
onboard the vessel;
    (2) Ensure that the EM system is installed, operated, and 
maintained consistent with performance standards (see Sec.  
660.604(l));
    (3) Comply with a NMFS-accepted vessel monitoring plan (see Sec.  
660.604(e)(3)(iii);
    (4) Make declaration reports to OLE prior to leaving port (see 
Sec.  660.604(m));
    (5) Provide advance notice to the NMFS WCGOP at least 48 hours 
prior to departing port (see Sec.  660.604(n));
    (6) Comply with observer requirements, if NMFS notifies the vessel 
owner, operator, or manager that the vessel is required to carry an 
observer (see Sec.  660.604(n));
    (7) Ensure retention and handling of all catch as provided under 
Sec. Sec.  660.604(p) and 660.604(r); and
    (8) Comply with recordkeeping, reporting, and inspection 
requirements (see Sec. Sec.  660.604(o), (s) and (t)).
    (d) First receiver responsibilities. First receivers receiving 
catch from trips taken under EM must follow special disposition and 
sorting requirements for prohibited and protected species (see Sec.  
660.604(u)).
    (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, then a final 
application that includes an EM system certification and a vessel 
monitoring plan (VMP). NMFS will only review complete applications. A 
vessel owner may submit an application at any time. Vessel owners that 
want to have their Authorizations effective for January 1 of the 
following calendar year must submit their complete application to NMFS 
by October 1. Vessel owners that want to have their Authorizations 
effective for May 15 must submit their complete application to NMFS by 
February 15 of the same year.
    (1) Initial application. To be considered for an EM Authorization, 
the vessel owner must submit a completed application form provided by 
NMFS, signed and dated by an authorized representative of the vessel, 
and meet the following eligibility criteria:
    (i) The applicant owns the vessel proposed to be used;
    (ii) The vessel has a valid Pacific Coast Groundfish limited entry, 
trawl-endorsed permit registered to it;
    (iii) If participating in the mothership sector, the vessel has a 
valid MS/CV endorsement;
    (iv) The vessel is participating in the Pacific whiting IFQ 
fishery, mothership sector, or the Shorebased IFQ sector using 
groundfish non-trawl gear;
    (v) 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;
    (vi) 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.
    (2) Review of initial application. Based on a complete initial 
application, if NMFS determines that the applicant meets the 
eligibility criteria in paragraph (e)(1) of this section, NMFS will 
notify the applicant in writing that the initial application has been 
accepted for further consideration. An applicant who receives such 
notice may install an EM system on his or her vessel and proceed with 
submission of a final application as provided under paragraph (e)(3) of 
this section. If an initial application has not been accepted, NMFS 
will provide the applicant an explanation of the denial in writing. The 
applicant may appeal NMFS' determination following the process at Sec.  
660.25(g).
    (3) Final application. A final application must be complete and 
must include:
    (i) EM system certification. A certification form, provided by 
NMFS, signed by a representative of a NMFS-permitted EM service 
provider that attests that an EM system and associated equipment that 
meets the performance standards at paragraph (k) of this section was 
installed on the vessel, that the system was tested while the vessel 
was underway, and that the vessel operator was briefed on the EM system 
operation and maintenance. NMFS will maintain a list of permitted EM 
service providers on its website.
    (ii) Tentative fishing plan. 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. This information is for purposes of 
planning observer deployments and is not binding.
    (iii) Vessel monitoring plan. A complete vessel monitoring plan for 
the vessel that accurately describes how fishing operations on the 
vessel will be conducted and how the EM system and associated equipment 
will be configured to meet the performance standards at paragraph (k) 
of this section. NMFS will develop EM Program Guidelines containing 
best practices and templates and make them available on NMFS' website 
to assist vessel owners in developing VMPs (see Sec.  660.600(b)). NMFS 
may consider alternative, but equivalent, methods proposed by EM 
service providers and vessel owners in their plans to meet the 
requirements of

[[Page 31166]]

this subpart, if they achieve the purpose of the EM program. An EM 
service provider may prepare and submit a VMP on behalf of the 
applicant. The VMP must include descriptions of the following (using 
pictures and diagrams where appropriate):
    (A) General vessel information including the vessel name, hull 
number, gear type(s), home port, captain name, and target fishery or 
sector;
    (B) The coordinates of the home port box, if a geo-referenced port 
box will be used to trigger data collection;
    (C) A diagram of the vessel layout with measurements of the deck 
and denoting the location of any designated discard control points;
    (D) The number and location of cameras and with images of 
corresponding views;
    (E) The location of lighting, control center, GPS, sensors, 
monitor, and other EM equipment;
    (F) Frame rates, image resolution, frequency of data logging, 
sensor trigger threshold values, and other EM system specifications;
    (G) The location and procedures for any catch handling, including 
designated discard control points within camera view, procedures for 
sorting and measuring discards, the number of crew sorting catch, and 
what steps will be taken to ensure that all catch remains in camera 
view;
    (H) The measurements of all bins, baskets, compartments, and other 
tools that will be used to calculate estimates of weight;
    (I) The detailed steps that will be taken to minimize the potential 
for EM system malfunctions and the steps that will be taken, when 
malfunctions occur, to ensure the adequate monitoring of catch;
    (J) The name, address, phone number, and email address of a primary 
point of contact for vessel operations;
    (K) The name, address, and phone number of the vessel's EM service 
provider, and contact information for a primary point of contact at the 
EM service provider;
    (L) The name, address, phone number, and signature of the 
applicant, and the date of the application; and,
    (M) Any other information required by NMFS.
    (iv) Any updates to information submitted in the initial 
application, including updates to proposed, self-enforcing agreements, 
if applicable (see paragraph (e)(5) of this section).
    (4) Review of final application. NMFS may request additional 
information or revisions from the applicant until NMFS is satisfied 
that the application is complete. Based on a complete application, if 
NMFS determines that the applicant has met the requirements of this 
section, NMFS will issue an IAD and an EM Authorization. If the 
application is denied, the IAD will provide an explanation of the 
denial in writing. The applicant may appeal NMFS' determination 
following the process at Sec.  660.25(g). NMFS will evaluate an 
application based on the EM Program Guidelines (see Sec.  660.600(b)) 
and the following criteria, at a minimum:
    (i) Review of the vessel owner's and operator's eligibility based 
on the eligibility criteria at paragraph (e)(1);
    (ii) Review of the proposed VMP; and,
    (iii) Review of the proposed self-enforcing agreement, if 
applicable.
    (5) Self-enforcing agreement. In the future, through a proposed and 
final rulemaking, NMFS may allow for and provide requirements related 
to the use of voluntary self-enforcing agreements. This agreement would 
allow a group of eligible vessels to encourage compliance with the 
requirements of this section through private, contractual arrangements. 
If such arrangements are used, participating vessel owners must submit 
the proposed agreement to NMFS for review and acceptance as part of the 
application process as provided under paragraphs (e)(1) and (3) of this 
section. 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.
    (f) Changes to a NMFS-accepted VMP. A vessel owner may make changes 
to a NMFS-accepted VMP by submitting a revised plan or plan addendum to 
NMFS in writing. NMFS will review and accept the change if it meets all 
the requirements of this section. A VMP addendum must contain:
    (1) The date and the name and signature of the vessel owner;
    (2) Address, telephone number, fax number and email address of the 
person submitting the addendum;
    (3) A complete description of the proposed VMP change.
    (g) Change in ownership of a vessel. If a vessel changed ownership, 
the new owner must apply for a new EM Authorization.
    (h) Effective dates.--(1) The EM Authorization is valid from the 
effective date identified on the Authorization until the expiration 
date of December 31. EM Authorization holders must renew annually by 
following the renewal process specified in paragraph (e) of this 
section. Failure to renew annually will result in expiration of the EM 
Authorization and endorsements on the Authorization expiration date.
    (2) Invalidation due to lapse in eligibility. NMFS may invalidate 
an EM Authorization if NMFS determines that the vessel, vessel owner, 
and/or operator no longer meets the eligibility criteria specified at 
paragraph (e)(1) of this section. NMFS would first notify the vessel 
owner of the deficiencies in writing and the vessel owner must correct 
the deficiencies following the instructions provided. If the 
deficiencies are not resolved upon review of the first trip following 
the notification, NMFS will notify the vessel owner in writing that the 
EM Authorization is invalid and that the vessel is 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. The holder may 
reapply for an EM Authorization for the following authorization period.
    (iii) Obtaining a new EM Authorization following an expiration or 
invalidation. A vessel owner holding an expired or invalidated 
authorization may reapply for a new EM Authorization at any time 
consistent with paragraph (e) of this section.
    (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 non-trawl 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.
    (j) EM System Performance Standards. The specifications (e.g., 
image resolution, frame rate, user interface) and configuration of an 
EM system and associated equipment (e.g., number and placement of 
cameras, lighting) used to meet the requirements of this section must 
be sufficient to:
    (1) Allow easy and complete viewing, identification, and 
quantification, of catch items discarded at sea, including during low 
light conditions;
    (2) Continuously record vessel location (latitude/longitude 
coordinates), velocity, course, and sensor data (i.e, hydraulic and 
winch activity);
    (3) Allow the identification of the time, date, and location of a 
haul/set or discard event;

[[Page 31167]]

    (4) Record and store image data from all hauls/sets and the 
duration that fish are onboard the vessel until offloading begins;
    (5) Continuously record and store raw sensor data (i.e., GPS and 
gear sensors) for the entire fishing trip;
    (6) Prevent radio frequency interference (RFI) with vessel 
monitoring systems (VMS) and other equipment;
    (7) Allow the vessel operator to test and monitor the functionality 
of the EM system prior to and during the fishing trip to ensure it is 
fully functional;
    (8) Prevent tampering or, if tampering does occur, show evidence of 
tampering; and,
    (9) Provide image and sensor data in a format that enables their 
integration for analysis.
    (k) EM data services. A vessel owner with a valid EM Authorization 
must obtain EM data processing, reporting, and record retention 
services from a NMFS-permitted EM service provider, as described at 
Sec.  660.603(m). If the vessel owner changes EM service providers, the 
vessel owner must ensure the continuity of EM data retention for the 
entire duration of the required retention period as specified Sec.  
660.603(m)(6). NMFS will maintain a list of permitted EM service 
providers on its website.
    (l) EM system operation and maintenance. The EM system must be 
recording imagery and sensor data at all times that fish harvested 
during an EM trip are onboard the vessel until offloading begins. For 
the purposes of this section, a fully functional EM system is defined 
as an EM system and associated equipment that meets the performance 
standards listed in paragraph (j) of this section.
    (1) Duties of care. The operator of a vessel with a valid EM 
Authorization must maintain the EM system in good working order, 
including:
    (i) Ensuring the EM system is powered continuously during the 
fishing trip;
    (ii) Ensuring the system is functioning for the entire fishing trip 
and that camera views are unobstructed and clear in quality, such that 
the performance standards listed in paragraph (j) of this section are 
met; and,
    (iii) Ensuring EM system components are not tampered with, 
disabled, destroyed, operated or maintained improperly.
    (2) Pre-departure test. Prior to departing port, the operator of a 
vessel with a valid EM Authorization must turn the EM system on and 
conduct a system function test following the instructions from the EM 
service provider. The vessel operator must verify that the EM system 
has adequate memory to record the entire trip and that the vessel is 
carrying one or more spare hard drives with sufficient capacity to 
record the entire trip.
    (3) EM system malfunctions. The operator of a vessel with a valid 
EM Authorization is prohibited from fishing on an EM trip without a 
fully functional EM system, unless an alternate arrangement has been 
specified in the NMFS-accepted VMP. In the event of an EM system 
malfunction, the vessel operator may voluntarily obtain observer 
coverage and revise the vessel's declaration following the process at 
Sec.  660.13(d)(4), in which case the vessel operator is no longer 
exempt from the observer requirements at Sec. Sec.  660.140(h) and 
660.150(j).
    (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. A vessel operator declaring a limited entry midwater trawl, 
Pacific whiting shorebased IFQ trip or limited entry midwater trawl, 
Pacific whiting mothership sector (catcher vessel or mothership) trip 
may only revise the existing monitoring declaration twice during the 
same calendar year. NMFS may waive this limitation with prior notice if 
it is determined to be unnecessary for purposes of planning observer 
deployments. Additional revisions may be made if the EM system has 
malfunctioned and the vessel operator has chosen to carry an observer, 
as allowed under paragraph (m)(3); or subsequently, the EM system has 
been repaired; and upon expiration or invalidation of the vessel's EM 
Authorization.
    (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 and gear type to be used. 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.
    (1) Notice of departure basic rule. At least 24 hours (but not more 
than 36 hours) before departing on a fishing trip, a vessel operator 
that has been notified by NMFS that his vessel is required to carry an 
observer, or that is operating in an active sampling unit, must notify 
NMFS (or its designated agent) of the vessel's intended time of 
departure. Notice will be given in a form to be specified by NMFS.
    (2) Optional notice--weather delays. A vessel operator that 
anticipates a delayed departure due to weather or sea conditions may 
advise NMFS of the anticipated delay when providing the basic notice 
described in paragraph (n)(1) of this section. If departure is delayed 
beyond 36 hours from the time the original notice is given, the vessel 
operator must provide an additional notice of departure not less than 4 
hours prior to departure, in order to enable NMFS to place an observer.
    (3) Optional notice--back-to-back fishing trips. A vessel operator 
that intends to make back-to-back fishing trips (i.e., trips with less 
than 24 hours between offloading from one trip and beginning another), 
may provide a notice of departure as described in paragraph (n)(1) of 
this section for both trips, prior to making the first trip. A vessel 
operator that has given such notice is not required to give additional 
notice of the second trip.
    (4) Cease fishing report. Within 24 hours of ceasing the taking and 
retaining of groundfish, vessel owners, operators, or managers must 
notify NMFS or its designated agent that fishing has ceased. This 
requirement applies to any vessel that is required to carry an 
observer, or that is operating in a segment of the fleet that NMFS has 
identified as an active sampling unit.
    (5) Waiver. The West Coast Regional Administrator may provide 
written notification to the vessel owner stating that a determination 
has been made to temporarily waive coverage requirements because of 
circumstances that are deemed to be beyond the vessel's control.
    (6) Accommodations and food.--(i) Accommodations and food for trips 
less than 24 hours must be equivalent to those provided for the crew.
    (ii) Accommodations and food for trips of 24 hours or more must be 
equivalent to those provided for the

[[Page 31168]]

crew and must include berthing space, a space that is intended to be 
used for sleeping and is provided with installed bunks and mattresses. 
A mattress or futon on the floor or a cot is not acceptable if a 
regular bunk is provided to any crew member, unless other arrangements 
are approved in advance by the Regional Administrator or designee.
    (7) Safe conditions.--(i) The vessel operator must maintain safe 
conditions on the vessel for the protection of observers including 
adherence to all U.S. Coast Guard and other applicable rules, 
regulations, statutes, and guidelines pertaining to safe operation of 
the vessel, including, but not limited to rules of the road, vessel 
stability, emergency drills, emergency equipment, vessel maintenance, 
vessel general condition and port bar crossings, and provisions at 
Sec. Sec.  600.725 and 600.746 of this chapter. An observer may refuse 
boarding or reboarding a vessel and may request a vessel to return to 
port if operated in an unsafe manner or if unsafe conditions are 
identified.
    (ii) The vessel operator must have on board a valid Commercial 
Fishing Vessel Safety Decal that certifies compliance with regulations 
found in 33 CFR chapter I and 46 CFR chapter I, a certificate of 
compliance issued pursuant to 46 CFR 28.710 or a valid certificate of 
inspection pursuant to 46 U.S.C. 3311.
    (8) Observer communications. The vessel operator must facilitate 
observer communications by:
    (i) Allowing observer(s) to use the vessel's communication 
equipment and personnel, on request, for the entry, transmission, and 
receipt of work related messages, at no cost to the observer(s) or the 
U.S. or designated agent; and
    (ii) Ensuring that the vessel's communications equipment, used by 
observers to enter and transmit data, is fully functional and 
operational.
    (9) Vessel position. The vessel operator must allow observer(s) 
access to the vessel's navigation equipment and personnel, on request, 
to determine the vessel's position.
    (10) Access. The vessel operator must allow observer(s) free and 
unobstructed access to the vessel's bridge, trawl or working deck, 
holding bins, sorting areas, cargo hold, and any other space that may 
be used to hold, process, weigh, or store fish at any time.
    (11) Prior notification. The vessel operator must notify 
observer(s) at least 15 minutes before fish are brought on board, or 
fish and fish products are transferred from the vessel, to allow 
sampling the catch or observing the transfer.
    (12) Records. The vessel operator must allow observer(s) to inspect 
and copy any state or federal logbook maintained voluntarily or as 
required by regulation.
    (13) Assistance. The vessel operator must provide all other 
reasonable assistance to enable observer(s) to carry out their duties, 
including, but not limited to:
    (i) Measuring decks, codends, and holding bins.
    (ii) Providing a designated safe working area on deck for the 
observer(s) to collect, sort and store catch samples.
    (iii) Collecting samples of catch.
    (iv) Collecting and carrying baskets of fish.
    (v) Allowing the observer(s) to collect biological data and 
samples.
    (vi) Providing adequate space for storage of biological samples.
    (vii) Providing time between hauls to sample and record all catch.
    (viii) Sorting retained and discarded catch into quota pound 
groupings.
    (ix) Stowing all catch from a haul before the next haul is brought 
aboard.
    (14) Sampling station. To allow the observer to carry out the 
required duties, the vessel operator must provide an observer sampling 
station that meets the following requirements so that the observer can 
carry out required duties.
    (i) The observer sampling station must be available to the observer 
at all times.
    (ii) The observer sampling station must be located within 4 m of 
the location from which the observer samples unsorted catch. 
Unobstructed passage must be provided between the observer sampling 
station and the location where the observer collects sample catch. To 
the extent possible, the area should be free and clear of hazards 
including, but not limited to, moving fishing gear, stored fishing 
gear, inclement weather conditions, and open hatches.
    (15) Transfers at sea. Observers may be transferred at-sea between 
a MS vessel and a catcher vessel. Transfers at-sea between catcher 
vessels is prohibited. For transfers, both vessels must:
    (i) Ensure that transfers of observers at sea via small boat under 
its own power are carried out during daylight hours, under safe 
conditions, and with the agreement of observers involved.
    (ii) Notify observers at least 3 hours before observers are 
transferred, such that the observers can finish any sampling work, 
collect personal belongings, equipment, and scientific samples.
    (iii) Provide a safe pilot ladder and conduct the transfer to 
ensure the safety of observers during transfers.
    (iv) Provide an experienced crew member to assist observers in the 
small boat in which any transfer is made.
    (16) Housing on vessel in port. During all periods an observer is 
housed on a vessel, the vessel operator must ensure that at least one 
crew member is aboard.
    (o) Inspection. The operator of a vessel with a valid EM 
Authorization must make the EM system and associated equipment 
available for inspection immediately upon request by NMFS or any 
authorized officer.
    (p) Retention requirements.--(1) Pacific whiting IFQ and MS/CV 
vessels. The operator of a vessel on a declared limited entry midwater 
trawl, Pacific whiting shorebased IFQ trip or limited entry midwater 
trawl, Pacific whiting mothership sector (catcher vessel or mothership) 
trip, EM trip must retain all fish until landing, with exceptions 
listed below.
    (i) Minor operational discards are permitted. Minor operational 
discards include mutilated fish; fish vented from an overfull codend, 
fish spilled from the codend during preparation for transfer to the 
mothership; 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 seabirds, and fish species longer than 6 ft (1.8 m) in 
length) may be discarded.
    (iii) Crabs, starfish, coral, sponges, and other invertebrates may 
be discarded.
    (iv) Trash, mud, rocks, and other inorganic debris may be 
discarded.
    (iv) 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.
    (2) Non-trawl shorebased IFQ. A vessel operator on a declared 
limited entry groundfish non-trawl, shorebased IFQ trip must retain all 
salmon and must discard Dungeness crab caught seaward of Washington or 
Oregon, Pacific halibut, green sturgeon, eulachon, sea turtles, and 
marine mammals. All other catch may be discarded following instructions 
in the VMP, except as required by the Seabird Avoidance Program at 
Sec.  660.21(c)(1).
    (q) Changes to retention requirements. Retention requirements for 
non-trawl shorebased IFQ vessels have been designated as ``routine,'' 
which means

[[Page 31169]]

that they can be changed after a single Council meeting following the 
procedures described at Sec.  660.60(c).
    (r) Catch handling. The vessel operator of a vessel on an EM trip 
must ensure that all catch is handled in a manner that enables the EM 
system to record it and that is consistent with the specific catch 
handling instructions in the NMFS-accepted VMP.
    (s) Reporting requirements.--(1) Discard logbook. The operator of a 
vessel with a valid EM Authorization must complete, submit, and 
maintain onboard the vessel an accurate federal discard logbook for 
each EM trip on forms supplied by or approved by NMFS. If authorized in 
writing by NMFS, a vessel owner or operator may submit reports 
electronically, for example by using a VMS or other media. A state 
logbook that contains all the required information may be submitted in 
place of a federal discard logbook. If operating an MS/CV vessel, the 
vessel operator must provide logbook information to the mothership 
observer by transmitting the logbook information via radio or email to 
the mothership at the completion of each haul.
    (2) Submission of logbooks. Vessel operators must submit copies of 
the federal discard logbook and state retained logbook to NMFS or its 
agent within 24-hours of the end of each EM trip.
    (3) Submission of EM data. Vessel operators must submit EM data to 
the vessel owner's contracted EM service provider using a method that 
documents time, date, and location of transmission and receipt. 
Deadlines for submission are as follows:
    (i) Pacific whiting IFQ vessels. EM data from an EM trip must be 
submitted within 10 calendar days of the end of that EM trip.
    (ii) Mothership catcher vessels. EM data from an EM trip must be 
submitted within 24-hours of the catcher vessel's return to port.
    (iii) Non-trawl shorebased IFQ vessels. EM data from an EM trip 
must be submitted within 10 calendar days of the end of that EM trip.
    (t) Retention of records. The operator of a vessel with a valid EM 
Authorization must maintain federal discard logbooks onboard the vessel 
until the end of the fishing year during which the EM trips were 
conducted, and make the report forms available to observers, NMFS 
staff, or authorized officers, immediately upon request. The vessel 
owner must maintain the federal discard logbooks 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, for 
a period of not less than three years after the date of landing from an 
EM trip. The vessel owner must make such records available for 
inspection by NMFS staff or authorized officers, immediately upon 
request.
    (u) First receiver requirements. (1) Prohibited species handling 
and disposition. To ensure compliance with fishery regulations at 50 
CFR part 300, subparts E and F, and part 600, subpart H; with the 
Pacific Salmon Fishery Management Plan; and with the Pacific Halibut 
Catch Share Plan; the handling and disposition of all prohibited 
species in EM trip landings are the responsibility of the first 
receiver and must be consistent with the following requirements:
    (i) Any prohibited species landed at first receivers must not be 
transferred, processed, or mixed with another landing until the catch 
monitor has: Recorded the number and weight of salmon by species; 
inspected all prohibited species for tags or marks; and, collected 
biological data, specimens, and genetic samples.
    (ii) No part of any prohibited species may be retained for personal 
use by a vessel owner or crew member, or by a first receiver or 
processing crew member. No part of any prohibited species may be 
allowed to reach commercial markets.
    (iii) Prohibited species suitable for human consumption at landing 
must be handled and stored to preserve the quality. Priority in 
disposition must be given to the donation to surplus food collection 
and distribution system operated and established to assist in bringing 
donated food to nonprofit charitable organizations and individuals for 
the purpose of reducing hunger and meeting nutritional needs.
    (iv) The first receiver must report all prohibited species landings 
on the electronic fish ticket and is responsible for maintaining 
records verifying the disposition of prohibited species. Records on 
catch disposition may include, but are not limited to: Receipts from 
charitable organizations that include the organization's name and 
amount of catch donated; cargo manifests setting forth the origin, 
weight, and destination of all prohibited species; or disposal receipts 
identifying the recipient organization and amount disposed. Any such 
records must be maintained for a period not less than three years after 
the date of disposal and such records must be provided to NMFS or 
authorized officers immediately upon request.
    (2) Protected Species handling and disposition. All protected 
species must be abandoned to NMFS or the U.S. Fish and Wildlife Service 
or disposed of consistent with paragraphs (u)(2)(i) and (ii) of this 
section. No part of any protected species may be retained for personal 
use by a vessel owner or crew member, or by a first receiver or 
processing crew member. No part of any protected species may be allowed 
to reach commercial markets.
    (i) Eulachon and green sturgeon. Must be sorted and reported by 
species on electronic fish tickets and state landing receipts and may 
not be reported in unspecified categories. Whole body specimens of 
green sturgeon must be retained, frozen, stored separately by delivery, 
and labeled with the vessel name, electronic fish ticket number, and 
date of landing. Arrangements for transferring the specimens must be 
made by contacting NMFS Southwest Fisheries Science Center at 831-420-
3903 within 72 hours after the completion of the offload.
    (ii) Seabirds, marine mammals, and sea turtles. Albatross must 
reported to the U.S. Fish and Wildlife Service (541-867-4558 extension 
237 or 503-231-6179 as soon as possible and directions for surrendering 
must be followed. Marine mammals and sea turtles must be reported to 
NMFS as soon as possible (206-526-6550) and directions for surrendering 
or disposal must be followed. Whole body specimens must be labeled with 
the vessel name, electronic fish ticket number, and date of landing. 
Whole body specimens must be kept frozen or on ice until arrangements 
for surrendering or disposing are completed. Unless directed otherwise, 
after reporting is completed, seabirds, marine mammals, and sea turtles 
may be disposed by incinerating, rendering, composting, or returning 
the carcasses to sea.

[FR Doc. 2019-13324 Filed 6-27-19; 8:45 am]
 BILLING CODE 3510-22-P