    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Proposed Rules]
    [Pages 53313-53316]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-18456]

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    DEPARTMENT OF COMMERCE

    National Oceanic and Atmospheric Administration

    50 CFR Part 660

    [Docket No. 200818-0221]
    RIN 0648-BJ63

    Fisheries Off West Coast States; Delay Implementation of West
    Coast Groundfish Electronic Monitoring Program

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

    ACTION: Proposed rule; request for comments.

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    SUMMARY: This proposed rule would revise regulations to delay
    implementation of the Electronic Monitoring (EM) Program for the West
    Coast Groundfish Trawl Rationalization Program. This action would delay
    implementation of the EM Program to January 1, 2022. NMFS is proposing
    this change to provide additional time for industry and prospective
    service providers to prepare for implementation, as it is expected to
    strengthen Council and industry support for the EM program and may
    increase participation when it is implemented in 2022.

    DATES: Comments on this proposed rule must be received no later than
    September 28, 2020.

    ADDRESSES: You may submit comments on this document, identified by
    NOAA-NMFS-2020-0116.
         Electronic Submission: Submit all electronic public
    comments via the Federal e-Rulemaking Portal. Go to
    www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0116, click the
    ``Comment Now!'' icon, complete the required fields, and enter or
    attach your comments.
         Mail: Barry Thom, c/o Colin Sayre, Sustainable Fisheries
    Division, West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA
    98115-0070.
        Instructions: Comments sent by any other method, to any other
    address or individual, or received after the end of the comment period,
    may not be considered by NMFS. All comments received are a part of the
    public record and will generally be posted for public viewing on
    www.regulations.gov without change. All personal identifying
    information (e.g., name, address, etc.), confidential business
    information, or otherwise sensitive information submitted voluntarily
    by the sender will be publicly accessible. NMFS will accept anonymous
    comments (enter ``N/A'' in the required fields if you wish to remain
    anonymous).

    Electronic Access

        This proposed rule is accessible via the internet at the Office of
    the Federal Register website at https://www.federalregister.gov.
    Background information and documents are available at the NMFS West
    Coast Region website at: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html and at the Pacific Fishery Management
    Council's website at http://www.pcouncil.org/groundfish/fishery-management-plan/groundfish-amendments-in-development/.

    FOR FURTHER INFORMATION CONTACT: Colin Sayre, phone: 206-526-4656, or
    email: colin.sayre@noaa.gov.

    SUPPLEMENTARY INFORMATION:

    Background

        At the recommendation of the Pacific Coast Fishery Management
    Council (Council), NMFS published a final rule on June 28, 2019 (84 FR
    31146) that authorized the use of EM in place of human observers to
    meet requirements for 100-percent monitoring at sea for catcher vessels
    in the groundfish trawl catch share fishery (Trawl Rationalization
    Program). EM video systems are used to record catch and discards by the
    vessel crew while at sea. Vessel operators are responsible for
    recording catch and discards in a logbook, which is then used to debit
    individual fishing quota (IFQ) accounts and cooperative allocations.
    After an EM vessel completes a fishing trip, the vessel operator
    submits the video data to their third party EM service provider for
    analysis to be used to audit the vessel operator's self-reported
    discard logbooks. The June 2019 final rule established requirements for
    vessel owners and operators and EM service providers participating in
    the EM program, and for first receivers receiving catch from EM trips.
    The EM program is set to begin January 1, 2021, and NMFS has been
    working on implementation of the program in preparation for the start
    date.
        At its April and June 2020 meetings, the Council recommended that
    NMFS delay implementation of the EM program to January 1, 2022, to
    provide more time to prepare. Specifically, the Council wants to
    provide more time for industry and the Pacific States Marine Fisheries
    Commission (PSMFC) to develop a model for industry to fund PSMFC for
    review of video from their fishing trips. PSMFC has been reviewing
    video data from the experimental EM Exempted Fishing Permit (EFP)
    program, funded by NMFS, since 2015. Members of the fishing industry
    and the Council would like PSMFC to continue participating as a NMFS-
    certified, third party service provider under the EM regulatory
    program. They believe that PSMFC can provide video review services at
    lower cost than private sector service provider companies. PSMFC is
    eligible to apply for an EM provider permit under the regulations, but
    remains concerned that accepting funds directly from industry would
    undermine the apparent impartiality of its role in data collection
    programs on the west coast. The Council has requested that NMFS delay
    implementation of the regulatory program to provide more time for the
    industry and PSMFC to address these concerns before PSMFC applies to be
    a service provider in 2022. The Council believes that a delay is
    necessary to increase industry buy-in and for success of the EM program
    at reducing monitoring costs for the fishery.
        At its April 2020 meeting, the Council initiated a regulatory
    amendment to consider changes to the EM program under Section 6.2 of
    the Pacific Coast Groundfish Fishery Management Plan, which allows the
    Council to recommend management measures in two meetings.

    [[Page 53314]]

    The Council adopted for public review several mostly administrative
    changes to the EM program, including delaying implementation of the EM
    program until January 1, 2022. The Council finalized its recommended
    changes to the EM program regulations at its June 2020 meeting. NMFS
    has taken up the Council's recommendation to delay the EM program in
    this rulemaking, and, to expedite completion of this rulemaking before
    January 2021, has postponed consideration of the other regulatory
    changes to a separate rulemaking to be completed at a later date.
        In this rule, NMFS is proposing to implement the Council's
    recommendation to delay implementation of the EM program to 2022, as it
    would strengthen Council and industry support for the EM program and
    may increase participation when it is implemented in 2022. Delaying
    implementation of the EM program could postpone the benefits that the
    EM program is expected to provide to vessel owners, as detailed in the
    June 2019 final rule, for an additional year. NMFS intends to maintain
    the EM EFP program through 2021, contingent on funding, and to allow
    additional vessels to join. Vessels in the EFP program have been able
    to use EM in place of human observers and benefit from its cost savings
    while NMFS collected information to use in developing the regulations
    for and implementing the EM program. Maintaining the EFP in 2021 would
    allow vessels to continue to use EM in place of observers and mitigate
    potential negative economic effects of delaying the regulations.
        Thus far in the EM EFP program, NMFS has funded review and storage
    of the video and reporting of the data using Federal funds provided to
    PSMFC through a grant. Although NMFS intends to renew the EFP for 2021,
    NMFS has not identified funding for these costs beyond 2020. If NMFS
    does not receive Federal funds to pay for the video review, storage,
    and reporting in 2021, the EFP could end, leaving vessel owners with no
    alternative to human observers in 2021 under this proposed rule. This
    would result in higher monitoring costs relative to maintaining the
    2021 implementation date for the regulations for vessels that would use
    EM if available.
        If Federal funding is not available for the EFP in 2021, vessel
    owners could instead pay PSMFC or a private, third party EM service
    provider directly for the video review, storage, and reporting for the
    EM EFP. Per NMFS's Procedural Directive on ``Cost Allocation in
    Electronic Monitoring Programs for Federally Managed U.S. Fisheries,''
    the video review, storage, and reporting are sampling costs that are an
    industry responsibility. NMFS has funded these costs for the EM EFP
    while Federal funds have been available, but participating vessels
    could take responsibility for these costs in the EFP to continue to use
    EM in 2021. This third party model is not authorized in the EFP as
    currently written, so NMFS would need to undertake revisions to add it
    to the EFP before 2021. Vessel owners would also need to solicit and
    contract with a third party provider. NMFS is prepared to revise the
    EFPs to allow vessel owners to hire third party EM service providers,
    including PSMFC, for 2021, if necessary. Hiring a third party provider
    would be more costly for vessel owners than if NMFS funded the video
    review costs, but would still be expected to be a cost savings relative
    to using a human observer, as detailed in the June 2019 final rule.
    Given the cost savings, NMFS believes it is likely the EFP will
    continue in one form or another in 2021 and therefore the EFP program
    would mitigate any negative economic effects of this proposed rule.
    NMFS is requesting public comment on whether this is a reasonable
    assumption and, therefore, whether the EFP can be expected to mitigate
    the potentially negative economic effects of this proposed rule.
        Under the EM program, first receivers accepting landings from EM
    vessels would no longer be able to use an observer on the vessel to
    monitor offloads and would have to obtain a catch monitor for these
    offloads. This may result in increased monitoring costs for first
    receivers under the EM program. In addition, under the EM program first
    receivers are required to sort and dispose of any prohibited or
    protected species retained by EM vessels. First receivers already have
    such disposition requirements for landings from Pacific whiting
    maximized retention trips under the current regulations, but EM would
    expand the existing whiting sorting and disposition requirements to
    landings from all EM trips beginning in 2021. Under this proposed rule,
    these additional costs would be postponed to 2022. However, because
    NMFS has maintained an EFP program since 2015 that allows vessels to
    use EM, NMFS believes that first receivers have already adjusted to the
    effects of these provisions under the EM EFP program, and therefore
    NMFS believes that this proposed rule will have no additional impact on
    first receivers relative to no regulatory action.
        NMFS has already received applications from some prospective
    companies interested in obtaining an EM service provider permit for
    2021. If the EM program is delayed through this proposed rule, any
    application received will be considered for permits for 2022 instead of
    2021.

    Summary of Proposed Regulations

        This proposed rule would amend language in 50 CFR 660.603, which
    describes electronic monitoring provider permits and responsibilities,
    and 50 CFR 660.604, which describes vessel and first receiver
    responsibilities, to delay the acceptance of EM service provider and EM
    Authorization applications to 2021, thereby delaying implementation of
    the EM program to January 1, 2022. The proposed regulations were deemed
    by the Council to be consistent with the regulatory amendment and
    necessary to implement such provisions pursuant to section 303(c) of
    the Magnuson-Stevens Act through an August 10, 2020 letter from the
    Council Executive Director to the NMFS West Coast Regional
    Administrator.

    Classification

        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
    NMFS Assistant Administrator has determined that this proposed rule is
    consistent with the Pacific Coast Groundfish Fishery Management Plan,
    other provisions of the Magnuson-Stevens Act, and other applicable law,
    subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for
    purposes of Executive Order 12866.
        This proposed rule is expected to be an Executive Order 13771
    deregulatory action.
        This proposed rule contains no information collection requirements
    under the Paperwork Reduction Act of 1995.
        The Chief Counsel for Regulation of the Department of Commerce
    certified to the Chief Counsel for Advocacy of the Small Business
    Administration (SBA) that this proposed rule, if adopted, would not
    have a significant economic impact on a substantial number of small
    entities. A description of the action, why it is being considered, and
    the legal basis for this action are contained at the beginning of this
    section and in the SUMMARY section of the preamble.
        This action impacts mainly commercial harvesting entities engaged
    in the groundfish limited entry trawl

    [[Page 53315]]

    fishery. The SBA established criteria for business in the fishery
    sector to qualify as small entities. For Regulatory Flexibility Act
    purposes only, NMFS 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. According to the most recent year of data from the Northwest
    Fisheries Science Center's Economic Data Collection Program, there were
    85 active trawl vessels that participated in the trawl fishery with an
    average revenue of $732,017 in 2018. Limited entry groundfish vessels
    are required to self-report size of business across all affiliated
    entities; of the businesses that earn the majority of their revenue
    from commercial fishing, none self-reported as large businesses. There
    were 14 licensed groundfish processors that received catch in the trawl
    fishery with an average total revenue of $27,772,991 in 2018, three of
    which self-identified as small businesses. There are not yet any
    permitted EM service providers operating in the fishery, but four
    companies have submitted applications for permits. NMFS does not have
    any economic information on these EM service provider companies.
        NMFS considers two criteria in determining the significance of
    adverse regulatory effects, namely, disproportionality and
    profitability. Disproportionality compares the effect of the regulatory
    action between small and large entities. This proposed rule is
    anticipated to affect all entities and is not expected to place any of
    the small entities described above at a significant competitive
    disadvantage relative to large entities. This proposed rule would delay
    implementation of the EM program to 2022. The EM program is expected to
    provide a cost savings and operational flexibility by providing vessel
    owners an alternative to human observers to meet monitoring
    requirements. As this action would delay implementation of the EM
    program, it would postpone these potential cost savings to vessel
    owners for an additional year. However, since 2015, NMFS has been
    operating an EFP program to test EM, which has enabled participating
    vessels to use EM in place of human observers while NMFS collected
    information for developing and implementing the EM program. Most
    vessels interested in using EM have been able to participate in the EM
    program and benefit from the cost savings EM provides, regardless of
    business size. NMFS intends to maintain this EFP program through 2021,
    contingent on funding, and to allow additional vessels to join, which
    would mitigate the negative economic effects of delaying the EM program
    implementation through this proposed rule. Even if NMFS does not
    receive Federal funding to continue the EFP program, participating
    vessel owners could hire a third party provider to process and report
    their EM data, instead of hiring an observer. Although this third party
    model would be more costly for vessel owners than if NMFS funded the
    video review and reporting, it would still be expected to be less
    costly than using a human observer, as described in the preamble to
    this proposed rule. Therefore, we do not expect significant or
    disproportionate adverse economic effects on small entities from this
    proposed rule.
        As discussed above, this proposed rule would delay implementation
    of the EM program which is expected to provide cost savings and
    operational flexibility to vessel owners. In this way, this proposed
    rule would postpone those cost savings for an additional year. However,
    as interested vessel owners can participate in the EM EFP program, NMFS
    does not expect this action to have significant adverse economic
    effects on profitability of fishing businesses.
        Because this action is not expected to have a significant adverse
    economic effects on a substantial number of small entities, an initial
    regulatory flexibility analysis is not required and none has been
    prepared.

    List of Subjects in 50 CFR Part 660

        Fisheries, Fishing, and Indian Fisheries.

        Dated: August 18, 2020.
    Samuel D. Rauch III,
    Deputy Assistant Administrator for Regulatory Programs, National Marine
    Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is
    proposed to be amended as follows:

    PART 660--FISHERIES OFF WEST COAST STATES

    0
    1. 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.  660.603, revise paragraph (b) introductory text to read as
    follows:

    Sec. Sec.  660.603   Electronic monitoring provider permits and
    responsibilities.

    * * * * *
        (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. NMFS
    has already accepted any EM service provider application submitted as
    of [DATE OF PUBLICATION OF THE FINAL RULE]. NMFS will begin accepting
    additional applications for EM service providers permits May 1, 2021. 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.
    * * * * *
    0
    3. In Sec.  660.604, revise paragraph (e) introductory text to read as
    follows:

    Sec.  660.604   Vessel and first receiver responsibilities.

    * * * * *

    [[Page 53316]]

        (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.
    NMFS has already accepted any EM Authorization application submitted as
    of the [DATE OF PUBLICATION OF THE FINAL RULE]. NMFS will begin
    accepting applications for EM Authorizations September 1, 2021. A
    vessel owner may submit an application at any time. Vessel owners that
    want to have their EM Authorizations effective for January 1 of the
    following calendar year must submit their complete application to NMFS
    by October 1. Vessel owners that want to have their EM Authorizations
    effective for May 15 must submit their complete application to NMFS by
    February 15 of the same year.
    * * * * *
    [FR Doc. 2020-18456 Filed 8-27-20; 8:45 am]
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