Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Electronic Monitoring Program Regulations for Bottom Trawl and Non-Whiting Midwater Trawl Vessels in the Pacific Coast Groundfish Trawl Catch Share Program

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This rule will implement electronic monitoring (EM) program regulations for vessels using groundfish bottom trawl and non-whiting midwater trawl gear in the Pacific Coast Groundfish Trawl Catch Share Program. This action will allow vessels using bottom trawl and non-whiting midwater trawl gear to use EM in place of human observers to meet requirements for 100 percent at-sea catch monitoring. This action is intended to increase operational flexibility and reduce monitoring costs for vessels in the groundfish trawl fishery. This rule also revises some language in existing regulations for EM vessels and EM service providers to clarify and streamline EM program requirements.

DATES:

Effective November 2, 2022.

Electronic Access

This final rule is accessible at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region website at: https://www.fisheries.noaa.gov/species/west-coast-groundfish and at the Pacific Fishery Management Council's website at https://www.pcouncil.org/managed_fishery/electronic-monitoring/.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background

The Pacific Coast Groundfish Fishery Management Plan (FMP) specifies management measures for over 90 different groundfish species in Federal waters off the West Coast states. Target species in the commercial fishery include Pacific whiting (hake), sablefish, dover sole, and rockfish, which are harvested by vessels primarily using midwater trawl and bottom trawl gear, and to a lesser extent “fixed gear” fish pots and longline. The trawl fishery is managed under the West Coast Groundfish Trawl Catch Share Program (Catch Share Program), which was implemented through Amendment 20 to the FMP in January 2011. The Catch Share Program consists of an individual fishing quota (IFQ) program for the shorebased trawl fishery (including whiting and non-whiting sectors), and cooperatives for the at-sea mothership (MS) and catcher/processor (C/P) trawl fisheries (whiting only). The Catch Share Program requires 100 percent monitoring of vessels at sea, and dockside when offloading, to ensure accountability for all landings and discards of allocated IFQ species. The West Coast Groundfish Observer Program (WCGOP) is responsible for the training, briefing, and in-season support of at-sea observers in the Catch Share Program. WCGOP helps to manage and review the catch data collected by observers while at sea.

Vessel owners and first receivers are responsible for obtaining and funding catch share observers and catch monitors as a condition of participating in the Catch Share Program. To provide a potential cost-saving alternative to human observers, the Pacific Fishery Management Council, NMFS, and groundfish stakeholders have been developing an electronic monitoring (EM) program as an option to meet at-sea monitoring requirements of the Catch Share Program. EM uses cameras and associated sensors to record and monitor fishing activities while a vessel is operating at sea. Video data is later reviewed by an analyst onshore to collect catch and effort information. EM can reduce monitoring costs for some vessels because it does not require deploying a human observer to the vessel, and associated, labor, travel, and logistical expenses.

NMFS published a final rule on June 28, 2019, (84 FR 31146) that established the overall EM program requirements, including an application process and responsibilities for participating vessel owners and operators and EM service providers, and requirements for first receivers receiving catch from EM trips. These rules also detailed gear-specific protocols for the use of EM on whiting and fixed gear trips. As discussed in these rules, the Council originally considered including regulations for all gear types used in the Catch Share Program (whiting, non-whiting midwater, bottom trawl, and fixed gear) in one regulatory amendment. However, at the time, additional information was needed to finalize protocols for the use of EM on trips using bottom trawl and non-whiting midwater gear. In April, September, and November 2017, the Council discussed various aspects of the EM program and took final action to recommend the use of EM with bottom trawl and non-whiting midwater trawl gear.

At the April and June 2020 meetings, the Council considered and ultimately recommended other minor regulatory changes to existing EM program regulations implemented under the June 2019 final rule (84 FR 31146; June 28, 2019). These regulatory changes were identified and developed from information collected through exempted fishing permits (EFPs) used to test EM systems and protocols, and are intended to clarify and streamline EM program requirements. These regulatory changes are included under this rule, and are described in the following sections of this preamble.

At the Council's recommendation, NMFS published an interim final rule on October 6, 2021 (86 FR 55525) to delay the start date for the EM program until at least January 1, 2024, and only after NMFS issues a public notice at least 90 calendar days before it will begin accepting applications for EM authorizations for the first year of the program. NMFS approved the recommendation, to strengthen Council and industry support for the EM program, increase participation when the program is implemented, and to provide additional time for industry and prospective service providers to prepare for implementation. The full rationale for the Council's recommendation to delay EM program implementation is detailed in the March 1, 2022 proposed rule for this action (87 FR 11382), and is not repeated here.

Consistent with the October 6, 2021 interim final rule (86 FR 55525), the EM program for the trip types included in this final rule will not be effective before January 1, 2024. A more extensive discussion of the development of these regulatory changes and the overall EM program is available in the March 1, 2022 proposed rule for this action (87 FR 11382) and is not repeated here.

II. Final Measures

Measures for Using EM on Bottom Trawl and Non-Whiting Midwater Trawl Trips

The June 2019 final rule (84 FR 31146; June 28, 2019) implemented the overall framework and general requirements for the EM program, including an application process for vessel owners and EM service providers and responsibilities for all program participants. This rule will allow vessels participating in the EM program to use bottom trawl gear or midwater trawl gear targeting non-whiting species, under the same general program requirements already in place for trips targeting whiting or using fixed gear. Vessel owners will be able to apply to NMFS to use EM in place of human observers to meet the 100 percent at-sea monitoring requirements of the Catch Share Program for bottom trawl or non-whiting midwater trawl trips. Vessel owners intending to use EM for bottom trawl or non-whiting midwater trawl trips are required to develop a vessel monitoring plan (VMP) which documents installation of EM systems, including specific plans and procedures for system operation, maintenance, and catch handling. This information will be submitted to NMFS for review as part of the vessel's application for authorization to use EM. The vessel operator is required to record discards of IFQ species on a logbook, which will initially be used to debit quota pounds from the vessel's account. The EM video data will then be reviewed by the vessel's EM provider and used to validate the discards reported in the logbook. The amount of video reviewed to audit the logbook will be as specified by NMFS in consultation with the Council and based on performance.

A detailed description of EM program requirements is contained in the September 2016 proposed rule (81 FR 61161; September 6, 2016) and June 2019 final rule (84 FR 31146; June 28, 2019) and is not repeated here. This proposed rule revises the gear-specific requirements of the EM program to add requirements for trips using bottom trawl and non-whiting midwater trawl gear, which are described in the following sections of this preamble.

Catch Retention

Under this rule, two different discard and catch retention rules can be used with EM on bottom trawl and non-whiting midwater trawl trips: “maximized” or “optimized” retention. Vessel operators will be able choose the preferred retention rule under which they plan to operate for a fishing trip using EM. As part of the required declaration report, prior to departing on a fishing trip, vessel operators will declare whether they intend to use maximized or optimized retention rules for EM trips. Declaration reports are described in additional detail in following sections of this preamble.

Under “maximized” retention requirements, vessels on bottom trawl and non-whiting midwater trawl trips do not sort or discard catch at sea, and are required to retain all catch until landing, with exceptions for prohibited and protected species.

Under “optimized” retention, EM vessel operators are allowed to discard species that can be differentiated on camera, and must retain those species that cannot be easily distinguished in video data. Some groundfish species are difficult to distinguish from each other without close inspection of certain physical features which cannot be easily viewed using video data. Species easily differentiated that may be discarded will be listed in § 660.604(p).

Vessel operators using EM on bottom trawl and non-whiting midwater trawl trips are responsible for ensuring all discarded catch is discarded following catch handling instructions in the NMFS-accepted VMP. This rule will allow NMFS to specify alternate retention requirements in a NMFS-accepted VMP through the process described at § 660.604(f), after consultation with the Council and issuance of a public notice of the changes.

Both retention rules have trade-offs, depending on the target species and gear type used. “Maximized” retention simplifies catch handling at sea, and video review, as only prohibited and protected species discards would need to be differentiated on camera. “Optimized” retention allows vessel operators to discard catch that can be differentiated on camera, and reduces the burden of having to store and later dispose of unmarketable or otherwise undesirable fish. The Council determined that allowing vessel operators to choose the retention rules that best fit the operation of their gear and vessel, as well as the characteristics of the target species, would provide operational flexibility while ensuring the reliability of EM video data for discard accounting.

This rule also expands the definition of prohibited species for the purposes of retention requirements under EM regulations at § 660.601. California Department of Fish and Wildlife (CDFW) recommended this regulatory change to ensure state-managed species are treated in the same manner as prohibited species if the vessel operator, or first receiver, does not have the appropriate state permit to land and sell these particular species of fish. Because the retention/discard species list can change through time, CDFW recommended to the Council regulatory language that would cover any state- managed species to eliminate the need for further revisions should other state-managed species be added to or removed from the lists.

EM Declaration and Switching Between EM and Observers

Under the regulations being finalized through this rule, vessels on bottom trawl and non-whiting midwater trawl trips are allowed to switch between using EM systems on some trips and human observers on others. West Coast fisheries regulations at § 660.13(d) require vessel operators to declare the fishery sector in which they will participate, the area to be fished, and the gear and monitoring type (EM or observers) they intend to use prior to leaving port, with limited exemptions. The gear types or sectors, and monitoring types that must be declared are listed in regulations at § 660.13(d)(4)(iv)(A). These declarations are sent through phone call to the NMFS Office of Law Enforcement (OLE), and are binding for the duration of the fishing trip for which they have been made. Though catcher vessels participating in the Pacific whiting fisheries may change their declarations between the mothership and shorebased sectors while on the same trip, monitoring type declarations cannot be changed while at sea. This rule modifies the list of declarations to include EM as a monitoring type that may be selected and declared on trips with bottom trawl and non-whiting midwater trawl gear.

Under existing regulations at § 660.604(e)(3)(ii), EM vessel operators are required to submit annual tentative fishing plans to NMFS. Tentative fishing plans are used by WCGOP and observer providers to plan training and deployment of observers. Tentative fishing plans are a description of the vessel owner's fishing plans for the year, including which fishery the vessel owner plans to participate in, from what ports, and when the vessel owner intends to use EM and observers. The information provided in tentative fishing plans is for purposes of planning observer training and deployments, and is not binding.

Under the regulations finalized through this rule, vessel owners and operators taking bottom trawl and non-whiting midwater trawl trips would not be restricted on the number of times they could switch between EM and observers during the year. Vessel operators are required to communicate their intended monitoring type before fishing through declarations to NMFS OLE. The Council determined that by using tentative fishing plans, disruption to observer training and deployment would be mitigated should vessel operators choose to switch monitoring types, therefore eliminating the need to require limits on switching monitoring types. The option to switch between EM and observers provides vessel operators flexibility to use the best monitoring strategy when considering efficiency, cost, or other operational factors of their individual fishing and business plans at a given time. Under the regulations finalized in this rule, there is no limit on switching between observers and EM for non-whiting midwater trawl and groundfish bottom trawl vessels.

Observer Program Declaration

Under existing regulations at § 660.604(n), as described above, a vessel operator must declare their intent to use either EM or observers 48 hours prior to leaving port. Under regulations for “maximized” and “optimized” retention, the operator is also required to include the retention rules they intend to use in their declaration to WCGOP 48 hours prior to leaving port on a trip using EM with bottom trawl or non-whiting midwater trawl gear. This timeframe and declaration allows for the planning of observer deployment. “Optimized” retention EM trips will continue to require partial observer coverage for the purpose of collecting biological samples of discarded catch. Biological samples include age, sex, and length specimen data, which cannot be obtained through EM systems. Requiring the vessel operator to notify WCGOP of their intended retention type will ensure optimized retention trips can be selected for biological sampling. WCGOP does not require partial observer coverage on maximized retention EM trips for biological sampling at this time, but could potentially in the future.

Group EM Authorization and Self-Enforcing Agreements

Under these final regulations, a group of eligible vessel owners participating in the shorebased IFQ sector, including those that take bottom trawl and non-whiting midwater trawl trips, may obtain a group EM authorization through a self-enforcing agreement. Through a private, contractual arrangement, a self-enforcing agreement allows a co-signed group of vessels, owners, operators, and other interested parties to cooperatively encourage, and enforce, compliance of EM program requirements by members. To be considered for a group EM authorization, a group of vessel owners must submit a complete initial EM authorization application package to NMFS for review and approval. The package must include a copy of the self-enforcing agreement to be eligible to receive a group EM authorization. Participating vessel owners are required to agree to conduct fishing operations according to the terms of the self-enforcing agreement. NMFS will still bear the ultimate responsibility for enforcing the EM regulations.

The self-enforcing agreement must include a description of participating members, responsibilities, procedures for communication with members and NMFS, equipment performance standards, provisions for the use and protection of confidential data, measures to enforce compliance, procedures for addressing non-compliance of members, and annual reports to the Council.

Under final regulations, NMFS has the authority to invalidate a group EM authorization if determined that any of the vessels, owners, and/or operators no longer meet the eligibility criteria for the self-enforcing agreement. NMFS would first notify the members of the group EM authorization of the deficiencies in writing, providing instructions for members to correct the deficiencies. If the deficiencies are not resolved upon review of the first trip following the notification, NMFS will notify the members in writing that the group EM authorization is invalid and that the members are no longer exempt from observer coverage at §§ 660.140(h)(1)(i) and 660.150(j)(1)(i)(B) for that authorization period. After the invalidation of a group EM authorization, individual vessels would be able to apply for individual authorizations.

The Council recommended the allowance of self-enforcing cooperative agreements for shorebased IFQ vessels in the EM program based on prior participation in EM EFPs by fishing cooperatives. Under these final regulations, a fishing collective that has operated under a cooperative self-enforcing agreement to test EM under EFPs will be able to apply for authorization to continue self-enforced compliance with the EM program. This rule allows additional groups of shorebased IFQ vessels applying for EM authorization to enter in the self-enforcing cooperative agreements. These agreements are intended to help encourage compliance with the many day-to-day responsibilities for EM system maintenance and catch handling requirements of the EM program.

Regulatory Changes To Refine Existing EM Program

In June 2019, NMFS published the final rule (84 FR 31146; June 28, 2019) establishing responsibility requirements for vessel operators using EM systems, and for EM service providers. These responsibilities are detailed in the 2019 final rule, and include declaration of EM systems use by vessel operators, protocols for transferring and handling EM data, logbook processing requirements, and technical reports by EM service providers. Minor changes necessary to clarify these regulations were identified after the publication of the 2019 final rule. The regulatory changes described below were developed through Council discussion with NMFS and members of industry at the Council's April and June 2020 meetings. The Council's intent in developing these regulatory changes is to refine and clarify certain EM program requirements and improve the effectiveness of the EM program overall in meeting its intended monitoring goals for the Trawl Catch Share Program.

1. Hard Drive Deadline

This regulatory change increases the hard drive submission deadline to 72 hours from the beginning of the offload following a fishing trip in which EM was used. Under EM program regulations at § 660.604(s)(3), vessels using EM systems are required to submit hard drives storing EM video data within 24 hours of beginning an offload after a fishing trip. Increasing this deadline to 72 hours aligns it with the hard drive submission requirements used under EM EFPs. This change provides additional time for vessel operators to comply with hard drive submission requirements with minimal impact to the timeliness of data. This change would also ensure a smooth transition for vessels operating under EFPs to the full EM program regulations when they become effective.

2. Reusing Hard Drives

This regulatory change requires the scrubbing of EM hard drives only if end-to-end encryption is not used. EM regulations at § 660.603(m)(3) require service providers to remove all EM data before hard drives can be reused in the field. This requirement was intended to ensure protection of confidential information for vessel owners and operators. However, regular scrubbing of hard drives can shorten their functional life, and requires their replacement more frequently, increasing operational costs for EM users. NMFS and the Council determined that the use of end-to-end encryption will sufficiently protect sensitive information and extend the life of EM hard drives. End-to-end encryption protects information encrypted by the sender, allowing only recipients with the encryption key to decrypt and access the information. Third parties without the encryption key would not have the means to read the files. Starting in 2017, NMFS stopped requiring scrubbing of hard drives that use end-to-end encryption in the EM EFP, which is consistent with practices in other regions. This regulatory change will reduce program costs, and still allow vessel owners to work with service providers to develop more strict requirements for the treatment of hard drives.

3. Limit on Switching Between EM and Observers for Whiting Vessels

This regulatory change removes the limit on switching between observers and EM for whiting trips. Regulations at § 660.604(m) previously restricted vessel operators on whiting trips from revising a monitoring declaration more than twice per calendar year, except in the case of an EM system malfunction. The limit was intended to prevent frequent switching that could disrupt deployment planning and affect the availability of observers. As NMFS described, and finalized in the June 2019 final rule (84 FR 31146; June 28, 2019), NMFS may waive the limit on switching between monitoring types if it is not necessary for planning observer deployment. After the 2019 final rule published, NMFS and the Council determined that a regulatory restriction on how many times a vessel taking whiting trips can switch between observers and EM was unnecessary. Under current regulations, vessel owners are required to provide a tentative fishing plan when they apply for their annual EM Authorization, in which the vessel owner gives NMFS advance notice of their plans to use EM and observers for the upcoming fishing year. WCGOP and observer providers then can use this information for planning purposes. This information negates the need for restrictions on switching between observers and EM. Therefore NMFS is implementing the Council's recommendation to eliminate the limit on switching between EM and observers for whiting trips under this final rule. This change will align the flexibility in moving between EM and observer coverage across all trip types (bottom trawl, whiting midwater, non-whiting midwater, and fixed gear).

4. Mothership/Catcher Vessel (MS/CV) Endorsement

EM regulations at § 660.604(e)(1)(iii) previously required a vessel applying to use EM in the mothership sector to have a valid mothership/catcher vessel (MS/CV) endorsement to qualify for authorization. This requirement was initially included for vessels testing EM under EFPs, as having valid permits for all intended fishing activities is a standard requirement for EFP eligibility. However, the regulations governing mothership cooperatives at § 660.150(g)(1) allow for a vessel without an MS/CV endorsement, but that is enrolled in the mothership cooperative, to deliver to a mothership. It was not the Council's and NMFS's intent to restrict participation with EM to only those vessels with an MS/CV endorsement. Including this eligibility criterion was a holdover from the EFP terms and conditions and is not consistent with Council intent. Therefore, this rule removes the requirement at § 660.604(e)(1)(iii) for an MS/CV endorsement to be eligible to use EM on MS/CV trips.

5. Logbook Processing

This regulatory change requires all vessel owners to submit discard logbooks directly to their EM service providers following a fishing trip in which EM was used. EM service providers will receive and process discard logbooks by entering data, performing quality assurance and control, and subsequently submit logbook data to NMFS for review. Service providers are required to submit initial logbook data to NMFS within two business days of receipt from vessel operators.

EM regulations at § 660.604(s) previously required vessel operators to submit discard logbooks directly to NMFS or its agent for processing. Under this model, NMFS would check logbooks for accuracy and issues and enter data, which would then be used to initially debit discarded catch from vessel IFQ accounts. EM service providers review video data separately, with WCGOP providing some logbook data to EM service providers that is necessary for completing the video review, such as trawl gear codend capacity, but with most identifying logbook data withheld to ensure video review is done blind.

Under previous regulations, having NMFS process logbooks directly would require back-and-forth with EM service providers to accurately match logbooks with EM trips, select trips or hauls for review, compare logbook and EM discard estimates, and investigate any discrepancies. Vessel owners were required to submit logbooks directly to NMFS via a secure transmission method to comply with confidentiality and data security requirements, limiting the methods by which NMFS can receive logbooks.

NMFS and the Council determined it is more efficient and cost effective to have EM service providers receive both logbooks and EM data directly from vessel owners for initial processing, entry, and quality control, and simply report final data to NMFS. NMFS will also receive logbooks, and use its debriefing procedures to carry out quality control on the logbook data and to check for potential bias in the video review. Having EM service providers process logbooks also allows individual vessel operators to develop optimal submission methods for discard logbooks with their respective EM service providers. NMFS supports the Council's recommendation and is therefore implementing the change through this final rule.

6. Reporting Deadlines for EM Service Providers

Under regulations at § 660.603, EM service providers are responsible for providing various feedback reports to vessel operators, and summaries to NMFS. These reports include logbook data, technical assistance, vessel operator feedback, EM summary data, and compliance reports. Submission of this information by service providers has been required in regulations as of June 2019; however, deadlines for the submission of these reports were not originally specified in regulation. Under this final rule, NMFS would establish submission deadlines for these required EM service providers' reports. This change will allow NMFS to enforce timely submission of EM data. The submission deadlines for each report are specified below.

A. Discard Logbooks

As described previously in this preamble, vessel operators would submit discard logbooks directly to EM service providers for processing. Under this final rule, service providers will submit initial logbook data to NMFS within two days of receipt from vessel operators. This deadline will help to ensure timely debiting of discards from vessel IFQ accounts, and is consistent with submission timelines used for EM EFPs and WCGOP observer data. Setting the deadline based on the receipt of initial, rather than final, logbook data will ensure service providers are not held responsible for late or incomplete submissions from vessel operators. After initial logbook submission, the EM service provider will work with the vessel operator to review data and, if necessary, revise and submit updated logbook data. Under these regulatory changes, requiring concrete deadlines for these reports in the regulations will ensure the timely submission of discard estimates from logbook data, which is essential for discard accounting in the Catch Share Program, and to provide clear expectations for all participants.

B. Reports of Technical Assistance

Under current regulations at § 660.603(k), EM service providers are required to submit reports to NMFS when technical assistance is requested by vessels on EM trips. These reports of technical assistance allow NMFS to monitor the performance of EM systems and field services, and follow up should any potential enforcement issues arise. Under this final rule, NMFS will require technical assistance reports to be submitted within 24 hours of the EM service provider being notified by the vessel operator. This change is consistent with how these notifications have occurred in the EM EFPs.

C. Vessel Feedback Reports

Under current regulations at § 660.603(m)(4), EM service providers are required to provide feedback reports to vessel operators and field services staff. Feedback is required on EM systems, crew responsibilities, and any other information that would improve the quality and effectiveness of data collection on the vessel. Through this final rule, NMFS is requiring feedback to be submitted to vessels within three weeks of the date EM data is received from the vessel operator for processing by the service provider. Prospective service providers, EFP vessel operators, and industry members have provided feedback through the Council process that three weeks is a reasonable timeline for the submission vessel feedback reports. Specifically, a submission deadline of three weeks after the service provider receives the hard drive from a vessel will ensure that EM service providers are not held responsible for late submissions by vessel operators. Concrete and enforceable deadlines are necessary to ensure service providers submit feedback reports in a timely manner, and establish the data processing procedures to meet these deadlines. It is critically important to provide timely feedback to vessel captains and crew on catch handling, EM system care, and other aspects of operations that affect data quality. Timely feedback to vessels will help to ensure the quality of EM data, and reliability of the EM program in meeting monitoring goals of the Catch Share Program.

D. EM Summary Data and Compliance Reports

Current regulations at § 660.603(m)(5) require service providers to submit EM summary data and compliance reports to NMFS following completion of video review. EM summary data includes discard estimates, fishing activity information, and trip metadata. This final rule requires EM summary data and compliance reports to be submitted to NMFS three weeks from the date the vessel operator submits EM data for processing. EM summary data and compliance reports are used by NMFS to debit vessel accounts, monitor program and vessel performance, and enforce requirements of the EM program. Trip metadata is an essential record of when and where EM data were created by the vessel, submission time, date and location of review, and point of contacts for reviewers. Trip metadata ensures fishing data can be accurately corroborated with logbook data and is necessary for a complete chain of custody and accountability between the vessel, service provider, and NMFS. Catch discards will initially be debited from vessel accounts in the IFQ database using logbook data, as described previously; discards would largely be accounted for following logbook processing, and audited using EM data. If there are large discrepancies between the logbook and EM summary data, then a longer reporting timeline may result in vessel account owners experiencing unexpected debits, or being unable to “close-out” an account for a fishing trip until the EM data are received. The Council recommended three weeks, with support from NMFS, as being a reasonable amount of time for service providers to complete review and subsequently prepare summary data and compliance reports.

7. Retention of EM Data

This rule will change the minimum length of time service providers are required to retain EM data records. Under previous regulations, service providers were required to maintain all of a vessel's EM data, reports, and other records specified in regulations at § 660.603(m) Data services for a period of not less than three years after the date of landing for that trip. The rationale for a three-year minimum retention period for EM data is detailed in the June 2019 final rule (84 FR 31146; June 28, 2019). Since that final rule, the Council recommended NMFS explore a shorter data retention period, to reduce the burden on industry to pay for data storage by third party service providers, while also meeting minimum federal record retention requirements. NMFS evaluated the feasibility and cost effectiveness of a shorter retention period, and developed a national policy on the minimum time that EM data must be retained. The Council supported NMFS evaluation and recommended a 12 month retention data retention period starting at the conclusion of end-of-the-year data reconciliation. This regulatory change will align with the 12-month minimum data retention period in the NMFS Procedural Directive 04-115-03 (see ADDRESSES ) for third-party minimum data retention in EM programs for federally managed U.S. fisheries

Under this final rule, EM service providers will be required to maintain EM data for a period of not less than 12 months starting after NMFS has officially completed end-of-year account reconciliation and catch monitoring. Review of catch monitoring data, including EM data, usually extends beyond the close of the fishery at the end of the calendar year. Starting the clock for the minimum retention period following end-of-the-year data reconciliation will best meet the recommendations of the procedural directive.

8. Change in Definition of Conflict of Interest for EM Service Providers

This proposed change will revise regulations at § 660.603(h) defining limitations on conflicts of interest for EM service providers to exclude providing other types of technical and equipment services to fishing companies. The definition in regulations previously excluded “the provision of observer, catch monitor, EM or other biological sampling services, in any Federal or state-managed fisheries” from the definition of a “direct financial interest.” After the June 2019 final rule (84 FR 31146; June 28, 2019) was published, an EM service provider brought to the Council's attention that many EM vendors provide a range of other services to fishing companies, including vessel monitoring systems (VMS), automatic identification system (AIS) transponders, telemetry (such as product temperature monitoring for seafood safety), buoy and gear monitoring, sonar systems, and mandatory safety services. Under the previous regulatory definition, such EM vendors were ineligible to provide EM services. The EM service provider noted that there is no evidence to suggest that providing such technical services to fishing companies creates any greater conflict of interest than providing biological sampling services, and requested that the definition be revised. Therefore, the Council recommended, and NMFS is implementing, a revised definition of a conflict of interest at § 660.603(h) to exclude providing other types of technical and equipment services to fishing companies.

9. Technical Corrections

In addition to the regulatory changes already described, the Council also recommended two clarifying corrections to language in the EM program regulations. The first correction is technical and changes the reference to “a NMFS-accepted EM Service Plan” under § 660.603(a)(1) to correctly refer to paragraph § 660.603(b)(1)(vii). The second correction changes a reference to “owner or operator” to instead be “authorized representative of the vessel” in § 660.603(n)(3), which is consistent with language in other regulations in 50 CFR 660-Fisheries Off West Coast States. This correction clarifies that a representative designated by the vessel owner, rather than solely the vessel owner or operator, is allowed to transfer EM data to service providers for review. NMFS supports these changes, and is implementing them through this final rule.

III. Comments and Responses

NMFS issued a proposed rule on March 1, 2022 (87 FR 11382). The comment period on the proposed rule closed March 31, 2022. No comments were received during the public comment period.

IV. Changes From the Proposed Rule

Proposed regulations intended to clarify logbook submission requirements within the EM program were adjusted to more clearly distinguish between the types of logbooks required for submission following trips with EM. The proposed regulations at § 660.604(p)(3), and (p)(4) as originally written in the proposed rule, used the term “bottom trawl logbooks.” This term is not defined, and is not used elsewhere in regulations, so in this final rule, the language is adjusted to instead use the term “discard logbooks,” as defined in existing EM regulations at § 660.604(s)(1). Additionally, the proposed regulations at § 660.604(s)(2), as originally written in the proposed rule, used the terms “federal discard logbooks, and state retained logbooks”. This final rule revises those terms to only refer to “discard logbooks” and “trawl logbooks” as defined at § 660.13(a)(1), to maintain clarity and avoid confusion. For these reasons this regulatory language is adjusted in this final rule.

Finally, this final rule includes a correction to an error in proposed regulations at § 660.13(d)(4)(iv)(A), which lists required vessel declarations for gear type, fishery, and intended monitoring type. Vessels in the Pacific Coast Groundfish Fishery are required to declare the gear type and monitoring they will use on a given trip. As described below under Reporting Requirements in this preamble, vessels will be able to declare “electronic monitoring” or “observer” as possible monitoring types on trips with bottom trawl and non-whiting midwater trawl gear. For the declaration type described at § 660.13(d)(4)(iv)(A)(11) text should read “Limited entry bottom trawl, shorebased IFQ, not including demersal trawl or selective flatfish trawl, observer”. In the proposed rule the word “observer” was unintentionally omitted. This final rule makes this correction to ensure the declaration type was consistent with the following declaration option which reads “(12) Limited entry bottom trawl, shorebased IFQ, not including demersal trawl or selective flatfish trawl, electronic monitoring”.

VI. Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast Groundfish FMP, Magnuson-Stevens Act, and other applicable laws.

Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the Pacific Coast Groundfish FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

This final rule has been determined to be not significant for the purposes of Executive Order 12866. This final rule does not contain policies with Federalism or “takings” implications as those terms are defined in Executive Orders 13132 and 12630, respectively.

Final Regulatory Flexibility Analysis

NMFS issued a proposed rule on March 1, 2022 (87 FR 11382), for the use of EM on bottom trawl and non-whiting midwater trawl vessels.

An initial regulatory flexibility analysis (IRFA) was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on March 31, 2022. NMFS did not receive any public comments on the proposed rule. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments on the IRFA or the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. A Final Regulatory Flexibility Analysis (FRFA) was prepared and incorporates the IRFA. There were no public comments received on the IRFA. NMFS also prepared a RIR for this action. A copy of the RIR/FRFA is available from NMFS (see ADDRESSES ). A summary of the FRFA, per the requirements of 5 U.S.C. 604 follows.

When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. The RFA (5 U.S.C. 601 et seq.) requires government agencies to assess the effects that regulatory alternatives would have on small entities, defined as any business/organization independently owned and operated and not dominant in its field of operation (including its affiliates). A small harvesting business has combined annual receipts of $11 million or less for all affiliated operations worldwide. A small fish-processing business is one that employs 750 or fewer persons for all affiliated operations worldwide.

For marinas and charter/party boats, a small business is one that has annual receipts not in excess of $7.5 million. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A nonprofit organization is determined to be “not dominant in its field of operation” if it is considered small under one of the following Small Business Administration (SBA) size standards: environmental, conservation, or professional organizations are considered small if they have combined annual receipts of $15 million or less, and other organizations are considered small if they have combined annual receipts of $7.5 million or less.

The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

No public comments were received on the proposed rule.

Description and Estimate of Number of Small Entities to Which the Rule Will Apply and Estimate of Economic Impacts by Entity Size and Industry

This final rule mainly affects commercial harvesting entities engaged in the groundfish limited entry trawl fishery. Although this action proposes EM program regulations for only two trip types in the limited entry trawl fishery—non-whiting midwater trawl, and bottom trawl—any limited entry trawl vessel may participate in these components, provided they comply with its requirements, and therefore may be eligible to use EM as applied to these two trawl gear sectors. In addition, vessels deploying EM are likely to be a subset of the overall trawl fleet, as some vessels would likely choose to continue to use observers. However, as all trawl vessels could potentially use EM in the future under this action, this FRFA analyzes impacts to the entire trawl fleet. The total number of vessels that may be eligible to use EM is 175, the total number of limited entry trawl permits in 2021, and includes those vessels that do use bottom trawl and non-whiting midwater trawl gear, and those that do not. Given these entities participate in the program, they are most likely to be impacted by this rule in the short term. This number may be an underestimate if additional vessels elect to participate in the EM program in the future.

A Description of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of Applicable Statutes and That Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities

The RFA requires Federal agencies to conduct a full RFA analysis unless the agency can certify that the proposed and/or final rule would not have a significant economic impact on a substantial number of small entities. This determination can be made at either the proposed or final rule stage. If the agency can certify, it need not prepare an IRFA, a final regulatory flexibility analysis (FRFA), or a Small Entity Compliance Guide or undertake a subsequent periodic review of such rules. The NMFS Guidelines for Economic Analysis of Fishery Management Actions suggest two criteria to consider in determining the significance of regulatory impacts, namely, disproportionality and profitability. These criteria relate to the basic purpose of the RFA, i.e., to consider the effect of regulations on small businesses and other small entities, recognizing that regulations are frequently unable to provide short-term cash reserves to finance operations through several months or years until their positive effects start paying off. If either criterion is met for a substantial number of small entities, then the rule should not be certified for not having an effect on small entities. These criterion raise two questions: Do the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? Do the regulations significantly reduce profit for a substantial number of small entities?

The preferred alternative for this rule will not have a significant impact when comparing small versus large businesses in terms of disproportionality and profitability given available information. These regulations are likely to reduce fishing costs for both small and large businesses. EM is an optional monitoring alternative to observers, and may provide cost savings for some vessels. Economic effects of this action are expected to range from neutral to positive when compared to the status quo. Nonetheless, NMFS has prepared this FRFA. There were no public comments received on this conclusion presented in the IRFA.

The economic impacts on small entities resulting from the final action range from neutral to positive; these entities will have a choice between hiring an observer, as is status quo, or using EM. The choice is expected to be based on relative costs and operational flexibility. Observer costs are currently $499 to $537 per seaday. Under EM, NMFS estimates vessels in the bottom trawl fishery will spend between $342/seaday (which include the cost of new equipment and installation) or $285/seaday (without equipment costs). These estimates are based on 412 seadays for 10 bottom trawl vessels participating in EFPs from 2019-2020. Under EM, NMFS estimates per seaday costs for non-whiting midwater trawl trips to range from $142/seaday (with equipment costs), and $120/seaday (without equipment costs). These estimates are based on 3,215 seadays for 30 midwater trawl vessels participating in EFPs from 2019-2020, and averaged cost estimates from four prospective EM service providers. These cost estimates are detailed in the section “Industry Costs” of the FRFA included in the supporting documents for this final rule. These costs are likely an overestimate and not an accurate estimate of seaday costs for this gear type because it does not incorporate revenue from seadays pursuing bottom trawl and whiting activities that are also part of these vessels' portfolios. Cost of EM service, including equipment installation and maintenance, along with video review and data service is expected to vary by service provider. Entities participating in this fishery are not required to use EM, and have the choice to use a human observer instead of EM. Furthermore, the cost of EM is likely to decrease as technology used in EM systems (cameras, sensors, and electronic storage devices) that meets current specification necessary to meet monitoring requirements becomes cheaper over time. Therefore, this final action would not impose new costs on these small entities, and will likely provide measurable cost savings over time as individual vessels choose the most affordable at-sea monitoring systems relative to their fishing operations.

The components of this rule have the potential to positively impact all entities in the catch share sector of the fishery, regardless of size. Therefore, the rule would impose effects on “a substantial number” of small entities, however, these effects are expected to range from neutral (if entities choose not to use the added flexibility of the provisions in this rule) to positive. Data used to inform this analysis was collected through EFPs and collaboration with industry and non-government organizations from 2012 to present.

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action nor were there any significant alternatives to the proposed rule considered that will accomplish the stated objectives and that minimize any significant economic impact of the final rule on small entities. As fishing operations are given a choice between two alternative monitoring systems (observers vs EM), this rule is likely to have neutral to positive effects on small entities. These regulations are likely to reduce fishing costs for both small and large businesses.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. A small entity compliance guide will be sent to stakeholders, and copies of the final rule and guides ( i.e., information bulletins) are available from NMFS at the following website: https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish.

Description of the Proposed Reporting, Record-Keeping, and Other Compliance Requirements of This Proposed Rule Under the Paperwork Reduction Act (PRA)

The action contains collection-of-information requirements that have been previously approved under OMB control number 0648-0785, West Coast Region Groundfish Trawl Fishery Electronic Monitoring Program, as per the PRA requirements. The requirements include vessel owner EM applications, renewals, and reports, EM service providers applications, renewals and reports, as well as vessel operator logbook, and hard drive submission. This rule would revise collection-of-information requirements to include submission of information for the formation of self-enforcing cooperative agreements. The action contains changes to collection-of-information requirements that are subject to review and approval by the Office of Management and Budget (OMB) as per the PRA requirements. NMFS has submitted these requirements to OMB for approval under OMB control number 0648-0785 West Coast Region Groundfish Trawl Fishery Electronic Monitoring Program.

This rule will revise collection-of-information requirements to include submission of information for the formation of self-enforcing cooperative agreements. Collection of information for self-enforcing agreements is not mandatory, as self-enforcing agreements are an optional provision of the EM program under collection 0648-0785. Some vessel owners may choose to apply for a group EM authorization under a self-enforcing agreement in lieu of individual vessel authorizations. The self-enforcing agreement would be submitted with the initial applications for vessels in the group, and requires approval prior to accepting final applications from the group. One self-enforcing agreement would be completed and submitted by a designated representative for each group of vessel owners applying under a group authorization. NMFS expects no more than three such self-enforcing group agreements for the first three years of this collection. Each self-enforcing agreement is expected to take approximately 3 hours to complete. The total annualized time burden to prepare self-enforcing agreements would be 3 hours (3 hours × 3 agreements/3 years). The burden cost of one copy of the self-enforcing agreement is estimated at $3.00 ($0.10/page × 30 pages). A designated representative, or manager of the self-enforcing cooperative would hold at least one copy. To be deemed eligible to operate under the agreement, vessel owners and operators would be required to have executed a copy of the agreement for an adherence agreement under which they agree to be bound. At most, 10 vessel owners are expected to participate in any one self-enforcing agreement, each would be required to have a copy of the agreement, plus one original copy held by the cooperative manager, is expected to result in a total annualized burden of $33.00 ($3.00 × 11).

This rule includes a minor revision to declaration requirements for groundfish vessels using EM under West Coast Region Vessel Monitoring Requirement in the Pacific Coast Groundfish Fishery (OMB Control Number 0648-0573). Vessels in the Pacific Coast Groundfish Fishery are required to declare the gear type and monitoring they will use on a given trip. Under this rule, vessels will be able to declare “electronic monitoring” or “observers” as possible monitoring types on trips with bottom trawl and non-whiting midwater trawl gear. The change would add additional potential answers to an existing declaration questionnaire, which does not affect the number of entities required to comply with the declaration requirement (OMB Control Number 0648-0573). Therefore, the rule does not increase the time or cost burden associated with this requirement.

Similarly, this rule would adjust the requirement for EM vessels to notify the West Coast Groundfish Observer Program before each trip in place of the existing notification to an individual vessel's observer provider when using a catch share observer. This change would not be expected to increase the time or cost burden associated with the existing notification requirements approved under the collection Observer Programs' Information That Can be Gathered Only Through Questions (OMB Control Number 0648-0593).

The requirement for first receivers to report protected and prohibited species landings was previously approved under the collection Northwest Region Groundfish Trawl Fishery Monitoring and Catch Accounting Program (OMB Control Number 0648-0619). Under the rule, first receivers would continue to report protected and prohibited species landings, but would also report landings of catch from trips monitored using EM under “maximized” and “optimized” retention rules with bottom trawl and non-whiting midwater trawl gear. The change would add additional potential answers to an existing questionnaire, and is not be expected to change the time or cost burden or number of entities associated with this requirement.

For more information, these collections, and all currently approved NOAA collections can be viewed at https://www.reginfo.gov/public/do/PRASearch# by entering the related OMB control number.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

List of Subjects in 50 CFR Part 660

• Fisheries
• Fishing
• Indians

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

PART 660—FISHERIES OFF WEST COAST STATES

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.

2. In § 660.13 revise paragraph (d)(4)(iv)(A) to read as follows:

3. In § 660.601, add a definition for “Prohibited species” in alphabetical order to read as follows:

4. In § 660.603, revise paragraphs (a)(1), (h)(1) introductory text, (k)(5), (m) introductory text, (m)(1) and (3), (m)(4) introductory text, (m)(5) and (6), and (n)(3) to read as follows:

5. In § 660.604,

a. Revise paragraphs (e) introductory text and (e)(1);

b. Remove paragraph (e)(5);

c. Revise paragraphs (f), (i), (m), and (n);

d. Add paragraphs (p)(3) and (4);

e. Revise paragraphs (q), (s)(2), and (s)(3)(i) and (ii); and

f. Remove paragraph (s)(3)(iii).

The revisions and additions read as follows: