Title 50

SECTION 660.603

660.603 Electronic monitoring provider permits and responsibilities.

§ 660.603 Electronic monitoring provider permits and responsibilities.

(a) General. This section contains requirements for EM service providers providing EM services, pursuant to contracts with vessel owners whose vessels operate in the Shorebased IFQ Program (§ 660.140) or the MS Co-op Program (§ 660.150) and use EM under this subpart. A person must obtain a permit and endorsement as provided under § 660.603(b) in order to be an EM service provider. An EM service provider must:

(1) Operate under a NMFS-accepted EM Service Plan (see § 660.603(b)(3)(vii)).

(2) Provide and manage EM systems, field services, and technical assistance as required under § 660.603(k);

(3) Provide technical and litigation information to NMFS or its agent (see § 660.603(l)).

(4) Provide technical support to contracted fishing vessels 24-hours per day, seven days per week, and year-round as provided under § 660.603(k)(4);

(5) Provide EM data processing, reporting, and record retention services to contracted vessels using EM (see § 660.603(m)).

(6) Comply with data integrity and security requirements, including requirements pertaining to hard drives and data files containing EM data, (see § 660.603(n)).

(b) Provider permits. To be an EM service provider, a person must obtain an EM service provider permit and endorsement by submitting an application to the NMFS West Coast Region Fisheries Permit Office. NMFS has already accepted any EM service provider application submitted as of November 23, 2020. 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 § 660.18.

(1) Contents of provider application. To be considered for an EM service provider permit and endorsement, the service provider must submit a complete application that includes the following information. The same information must be included for any partners or subcontractors if the applicant intends to satisfy any of the EM service provider requirements through a partnership or contractual relationship with another entity.

(i) Certify that the applicant meets the following eligibility criteria:

(A) The EM service provider and its employees do not have a conflict of interest as defined at § 660.603(h), and,

(B) The EM service provider is willing and able to comply with all applicable requirements of this section and to operate under a NMFS-accepted EM Service Plan.

(ii) Applicant's contact information.

(iii) Legal name of applicant organization. If the applicant organization is a United States business entity, include the state registration number.

(iv) Description of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and employees. List all office locations and their business mailing address, business phone, fax number, and email addresses. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.

(v) A narrative statement describing prior relevant experience in providing EM services, technical support, or fishery data analysis services, including recruiting, hiring, training, deploying, and managing of individuals in marine work environments and of individuals working with fishery data, in the groundfish fishery or other fisheries of similar scale.

(vi) A statement signed under penalty of perjury by an authorized agent of the applicant about each owner, or owners, board members, and officers if a corporation, authorized agents, and employees, regarding:

(A) Conflict of interest as described in § 660.603(h),

(B) Criminal convictions,

(C) Federal contracts they have had and the performance rating they received on each contract, and

(D) Any previous history of decertification or permit sanction action while working as an observer, catch monitor, observer provider, catch monitor provider, or electronic monitoring provider.

(vii) EM Service Plan. An EM Service Plan that describes in detail how the applicant will provide EM services for vessels. To ensure that the EM Program achieves its purpose, NMFS will develop EM Program Guidelines (see § 660.600(b)) and use them to evaluate proposed EM Service Plans. NMFS may consider alternative, but equivalent, methods proposed by EM service providers and vessel owners in their plans to meet the requirements of this subpart, if they achieve the purpose of the EM program. An EM Service Plan must include descriptions of the following (using pictures and diagrams where appropriate):

(A) Contact information for a primary point of contact for program operations inseason;

(B) A plan for provision of services including communications, service locations, response timelines, and procedures for services, repairs, technical support, and other program services;

(C) Procedures for hiring and training of competent program staff to carry out EM field services and data services, including procedures to maintain the skills of EM data processing staff in:

(1) Use of data processing software;

(2) Species identification;

(3) Fate determination and metadata reporting requirements;

(4) Data processing procedures;

(5) Data tracking; and,

(6) Reporting and data upload procedures.

(D) Procedures for tracking hard drives and/or data files throughout their use cycle, including procedures to ensure the integrity and security of hard drives or data files in transit, and for removing EM data from hard drives or other medium before returning them to the field;

(E) Procedures for data processing, including tracking of EM datasets throughout their processing cycle and documenting any access and modifications;

(F) Procedures for correction and resubmission of EM summary data reports and other reports that NMFS has determined are not of sufficient quality to meet the purpose of the EM program, as described at § 660.603(m)(5), and to ensure that future reports are sufficient for use by NMFS.

(G) Policies on data access, handling, and release to prevent unauthorized disclosure of EM data and other records specified in this section by the EM provider as required under § 660.603(n);

(H) Procedures for retention of records as required under § 660.603(m)(6);

(I) Identifying characteristics of the EMS to be deployed and the video review software to be used in the fishery, including but not limited to: Manufacturer, brand name, model name, model number, software version and date, firmware version number and date, hardware version number and date, monitor/terminal number and date, pressure sensor model number and date, drum rotation sensor model number and date, and GPS model number and date.

(J) EM system and software specifications, including a narrative statement describing how the EM system and associated equipment meets the performance standards at § 660.604(j).

(K) EM video review software specifications, including a narrative statement describing how the software meets the EM Program Guidelines and will provide NMFS with data to achieve the purpose of the EM Program as defined at § 660.600(b).

(viii) Provide NMFS the following, if requested:

(A) Two EM system units loaded with software for a minimum of 90 calendar days for testing and evaluation.

(B) Thorough documentation for the EM system, including: User manuals, any necessary interfacing software, performance specifications, technical support information, and tamperproof or tamper evident features.

(C) The results of at-sea trials of the EM system.

(D) Two copies of video review and analysis software for a minimum of 90 calendar days for testing and evaluation.

(E) Thorough documentation for the video review and analysis software, including: User manuals, performance specifications, and technical support information.

(F) Descriptions of database models and analysis procedures for EM data and associated meta data to produce required reports.

(2) Application evaluation. NMFS may request additional information or revisions from the applicant until NMFS is satisfied that the application is complete. Complete applications will be forwarded to the EM Program for review and evaluation by the EM provider permit review board. If the applicant is an entity, the review board also will evaluate the application criteria for each owner, board member, officer, authorized agent, and employee. NMFS will evaluate the application based on the EM Program Guidelines (see § 660.600(b)) and the following criteria:

(i) The applicant's relevant experience and qualifications;

(ii) Review of any conflict of interest as described in § 660.603(h);

(iii) Review of any criminal convictions;

(iv) Review of the proposed EM Service Plan, including evaluation of EM equipment and software;

(v) Satisfactory performance ratings on any federal contracts held by the applicant;

(vi) Review of any history of decertification or permit sanction as an observer, catch monitor, observer provider, catch monitor provider, or EM service provider; and,

(vii) Review of any performance history as an EM service provider.

(3) Agency determination on an application. Based on a complete application, if NMFS determines that the applicant has met the requirements of this section, NMFS will issue an initial administrative determination (IAD). If the application is approved, the IAD will serve as the EM service provider's permit and endorsement. If the application is denied, the IAD will provide an explanation of the denial in writing. The applicant may appeal NMFS' determination following the process at § 660.19.

(4) Effective dates. The provider permit is valid from the effective date identified on the permit until the permit expiration date of December 31 of the following year. Provider permit holders must renew biennially by following the renewal process specified in paragraph (f) of this section.

(5) Expiration of the provider permit - (i) Expiration due to inactivity. After a period of 24 continuous months during which no EM services are provided by the provider in the Pacific coast groundfish fishery, NMFS will issue an IAD describing the intent to expire the provider permit or to remove the appropriate endorsement(s) and the timeline to do so. A provider that receives an IAD may appeal under § 660.19. The provider permit and endorsements will remain valid until a final agency decision is made or until the permit expiration date, whichever is earlier.

(ii) Expiration due to failure to renew. Failure to renew biennially will result in expiration of the provider permit and endorsements on the permit expiration date.

(iii) Invalidation due to lapse in eligibility. NMFS may invalidate an EM service provider permit if NMFS determines that the EM service provider no longer meets the eligibility criteria defined at paragraph (b)(1)(i) of this section. NMFS will first notify the EM service provider of the deficiencies in writing and the EM service provider must correct the deficiencies following the instructions provided. If the deficiencies are not resolved upon review of the first trip following the notification, NMFS will notify the EM service provider in writing that the provider permit is invalid and that the EM service provider is no longer eligible to provide EM services for vessels for the remainder of that calendar year. The EM service provider may reapply for an EM service provider permit and endorsement for the following calendar year.

(iv) Obtaining a new permit or endorsement following an expiration or invalidated permit. A person holding an expired or invalidated permit or endorsement may reapply for a new provider permit or endorsement at any time consistent with paragraph (b) of this section.

(c) Changes to a NMFS-accepted EM Service Plan. An EM service provider may make changes to a NMFS-accepted EM Service Plan by submitting a revised plan or plan addendum to NMFS in writing. NMFS will review and accept the change if it meets all the requirements of this section. A plan addendum must contain:

(1) The date and the name and signature of an authorized agent of the EM service provider;

(2) Address, telephone number, fax number and email address of the person submitting the addendum;

(3) A complete description of the proposed EM Service Plan change.

(d) Change of provider permit ownership and transfer restrictions. If an EM service provider changes ownership during the term of an EM service provider permit, the new owner must apply for a new provider permit.

(e) Provider permit sanctions. Procedures governing sanctions of permits are found at subpart D of 15 CFR part 904.

(f) Renewing a provider permit. To maintain a valid provider permit, provider permit holders must reapply biennially prior to the permit expiration date. NMFS will mail a provider permit application form to existing permit holders on or about July 15 of the year that the permit is due to expire. Providers who want to have their permits effective for January 1 of the following calendar year must submit their complete application form to NMFS by September 1. If a provider fails to renew the provider permit, the provider permit and endorsements will expire on the permit expiration date.

(g) Fees. NMFS may charge a fee to cover administrative expenses related to issuance of permits including initial issuance, renewal, replacement, and appeals.

(h) Limitations on conflict of interest for providers and employees. (1) EM service providers and their employees must not have a direct financial interest, other than the provision of observer, catch monitor, EM, or other biological sampling services, in any federal or state managed fisheries, including but not limited to:

(i) Any ownership, mortgage holder, or other secured interest in a vessel, first receiver, shorebased or floating stationary processor facility involved in the catching, taking, harvesting or processing of fish;

(ii) Any business involved with selling supplies or services to any vessel, first receiver, shorebased or floating stationary processing facility; or

(iii) Any business involved with purchasing raw or processed products from any vessel, first receiver, shorebased or floating stationary processing facilities.

(2) EM service providers and their employees must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, employment, or anything of monetary value from any person who conducts fishing or fish processing activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the provider's contractual duties.

(3) The EM service provider may not employ any person to handle hard drives or EM data from a vessel by which the person was previously employed in the last two years.

(4) Provisions of contracts or agreements for remuneration of EM services under this section do not constitute a conflict of interest.

(i) Insurance. The EM service provider must maintain sufficient commercial liability insurance to cover bodily injury and property damage caused by their employees while on a contracted vessel and State Worker's Compensation insurance. The EM service provider shall provide copies of these insurance policies to the vessel owner, operator, or vessel manager, when requested.

(j) Warranties. None of the provisions of this section are intended to preclude any state or federal statutes or regulations governing warranties.

(k) Field and technical support services. The EM service provider must provide and manage EM systems, installation, maintenance and technical support, as described below and according to a NMFS-accepted EM Service Plan, which is required under § 660.603(b)(1)(vii), and as described in the EM Program Manual or other written and oral instructions provided by the EM Program, such that the EM program achieves its purpose as defined at § 660.600(b).

(1) At the time of installation, the EM service provider must:

(i) Install an EM system that meets the performance standards under § 660.604(j);

(ii) Ensure that the EM system is set up, wires run, system powered, and tested with the vessel in operation;

(iii) Brief the vessel operator on system operation, maintenance, and procedures to follow for technical support or field service;

(iv) Provide necessary information for the vessel operator to complete the VMP, such as images and diagrams of camera views and vessel layout, specific information about system settings, and designated discard control points; and,

(v) Complete an EM System Certification Form for the vessel owner.

(2) The EM service provider must communicate with vessel operators and NMFS to coordinate service needs, resolve specific program issues, and provide feedback on program operations.

(3) The EM service provider must provide maintenance and support services, including maintaining an EM equipment inventory, such that all deployed EM systems perform according to the performance standards at § 660.604(j) and that field service events are scheduled and carried out with minimal delays or disruptions to fishing activities.

(4) The EM service provider must provide technical assistance to vessels, upon request, in EM system operation, the diagnosis of the cause of malfunctions, and assistance in resolving any malfunctions. Technical support must be available 24-hours per day, seven days per week, and year-round.

(5) The EM service provider must submit to NMFS reports of requests for technical assistance from vessels, including when the call or visit was made, the nature of the issue, and how it was resolved.

(l) Technical assistance and litigation information. As a requirement of its permit, the EM service provider must provide the following to NMFS or authorized officers, upon request.

(1) Assistance in EM system operation, diagnosing and resolving technical issues, and recovering corrupted or lost data.

(2) Responses to inquiries related to data summaries, analyses, reports, and operational issues with vessel representatives.

(3) Technical and expert information, if the EM system/data are being admitted as evidence in a court of law. All technical aspects of a NMFS-approved EM system may be analyzed in court for, inter alia, testing procedures, error rates, peer review, technical processes and general industry acceptance. To substantiate the EM system data and address issues raised in litigation, an EM service provider must provide information, including but not limited to:

(i) If the technologies have previously been subject to such scrutiny in a court of law, a brief summary of the litigation and any court findings on the reliability of the technology.

(ii) [Reserved]

(4) All software necessary for accessing, viewing, and interpreting the data generated by the EM system, including maintenance releases to correct errors in the software or enhance the functionality of the software.

(5) Notification NMFS within 24 hours after the EM service provider becomes aware of the following:

(i) Any information, allegations, or reports regarding possible harassment of EM provider staff;

(ii) Any information, allegations, or reports regarding possible EM system tampering;

(iii) Any information, allegations, or reports regarding any action prohibited under §§ 660.12(f) or 660.602(a)(13); or,

(iv) Any information, allegations or reports regarding EM service provider staff conflicts of interest.

(6) Notification to NMFS of any change of management or contact information or a change to insurance coverage.

(7) A copy of any contract between the service provider and entities requiring EM services;

(8) Proof of sufficient insurance as defined in paragraph (i);

(9) Copies of any information developed and used by the EM service provider and distributed to vessels, including, but not limited to, informational pamphlets, payment notifications, and description of EM service provider duties; and,

(10) EM data and associated meta data, and other records specified in this section.

(m) Data services. For vessels with which it has a contract (see § 660.604(k)), the EM service provider must provide and manage EM data processing, reporting, and record retention services, as described below and according to a NMFS-approved EM Service Plan, which is required under § 660.603(b)(1)(vii), and as described in the EM Program Manual or other written and oral instructions provided by the EM Program, and such that the EM Program achieves its purpose as defined at § 660.600(b).

(1) The EM service provider must process vessels' EM data according to a prescribed coverage level or sampling scheme, as specified by NMFS, and determine an estimate of discards for each trip using standardized estimation methods specified by NMFS. NMFS will maintain manuals for EM data processing protocols on its website.

(2) The EM service provider must ensure that its data processing staff are fully trained in:

(i) Use of data processing software;

(ii) Species identification;

(iii) Fate determination and metadata reporting requirements;

(iv) Data processing procedures;

(v) Data tracking; and,

(vi) Reporting and data upload procedures.

(3) The EM service provider must track hard drives and EM datasets throughout their cycles, including documenting any access and modifications. EM data must be removed from hard drives or other medium before returning them to the field.

(4) The EM service provider must communicate with vessel operators and NMFS to coordinate data service needs, resolve specific program issues, and provide feedback on program operations. The EM service provider must provide feedback to vessel representatives, field services staff, and NMFS regarding:

(i) Adjustments to system settings;

(ii) Changes to camera positions;

(iii) Advice to vessel personnel on duty of care responsibilities;

(iv) Advice to vessel personnel on catch handling practices; and,

(v) Any other information that would improve the quality and effectiveness of data collection on the vessel.

(5) On behalf of vessels with which it has a contract (see § 660.604(k)), the EM service provider must submit to NMFS EM summary reports, including discard estimates, fishing activity information, and meta data (e.g., image quality, reviewer name), and incident reports of compliance issues according to a NMFS-accepted EM Service Plan, which is required under § 660.603(b)(1)(vii), and as described in the EM Program Manual or other written and oral instructions provided by the EM Program, such that the EM program achieves its purpose as defined at § 660.600(b). If NMFS determines that the information does not meet these standards, NMFS may require the EM service provider to correct and resubmit the datasets and reports.

(6) Retention of records. Following an EM trip, the EM service provider must maintain all of a vessel's EM data and other records specified in this section, or used in the preparation of records or reports specified in this section or corrections to these reports, for a period of not less than three years after the date of landing for that trip. EM data and other records must be stored such that the integrity and security of the records is maintained for the duration of the retention period. The EM service provider must produce EM data and other records immediately upon request by NMFS or an authorized officer.

(n) Data integrity and security. The EM service provider must ensure the integrity and security of vessels' EM data and other records specified in this section. The EM service provider and its employees:

(1) Must not handle or transport hard drives or other medium containing EM data except to carry out EM services required by this section in accordance with a NMFS-accepted EM Service Plan.

(2) Must not write to or modify any EM hard drive or other medium that contains EM data before it has been copied and catalogued.

(3) Must not release a vessel's EM data and other records specified in this section (including documents containing such data and observations or summaries thereof) except to NMFS and authorized officers as provided in § 660.603(m)(6), or as authorized by the owner or operator of the vessel.

[84 FR 31160, June 28, 2019, as amended at 85 FR 74614, Nov. 23, 2020]

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