[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: [email protected].

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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