NOAA Proposes Electronic Monitoring Changes
June 1, 2018
In February, the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) published a notice that the Agencies were reopening the public comment period on a topic first announced in December 2017.
The topic was a bit arcane: a proposal by NOAA/NMFS to revise the official renewal process that documents and certifies functionality for Enhanced Mobile Transmitting Units (EMTUs), the on-board monitoring devices which track and record location of fishing vessels. EMTUs provide the official data that documents compliance with legal commercial fishing. The devices provide the evidence to prosecute illegal fishing. Obviously, then, critical equipment.
The February announcement did not change NOAA’s proposed December revisions. Rather, it was a notice that the Agency had not, during a month-long comment period, received any comments on its December proposal and, therefore, wanted to again provide “additional opportunity for informed public comment.”
NOAA’s vessel monitoring system (VMS) monitors more than 4,000 vessels, making it “the largest national VMS fleet in the world,” according to NOAA. For fishermen and their vessels, VMS policies vary depending on six fishing zones:
• Pacific Islands
• West Coast
• Atlantic Highly Migratory Species.
For the Pacific region, VMS requirements apply to commercial fishing vessels registered for use with a Pacific Coast groundfish limited entry permit fishing in state or Federal marine waters off the states of Washington, Oregon, or California. The program consists of declaration reports and a vessel monitoring system. The declaration reports given by fishermen before a fishing trip identify the vessel operator’s intent to fish within an RCA (rockfish conservation area), which gear type will be used for fishing, and in which fishery they are participating.
Vessel monitoring includes a satellite surveillance system that tracks vessel location and movement in the US Exclusive Economic Zone and treaty areas. VMS operates 24-7 with “near-perfect accuracy,” according to NOAA. The EMTU-satellite system provides almost real-time vessel identification, date, and location, data that is mapped and displayed for agency staff.
Considering the large VMS user-base, and the importance of EMTU devices, the official public disinterest in NOAA’s proposed program revisions can, at first, seem unusual. Upon closer inspection, though, NOAA’s proposed revision can appear to impact just a small segment of the EMTU regulatory picture. In this case, EMTU manufacturers and the process they need to follow to renew “type-approval” for EMTU devices. “Type-approval” is agency jargon that an EMTU meets all of the codified demands set by NOAA Fisheries. A vessel needs a “type-approved” unit. A vessel may not use an EMTU that is not “type-approved.”
In 2014, NOAA set the process by which EMTU manufacturers must retain type-approval status. Every three years manufacturers would need to initiate a renewal process to certify that a unit’s hardware and software continued to provide all of the information required for vessel monitoring. If a manufacturer did not comply with the renewal process, then NOAA’s official “type-approval” would lapse for that particular device.
There are only six companies that sell EMTUs approved by federal fisheries for use in vessels. Therefore, since just six EMTU manufacturers faced renewal requirements, it could be easy to view this as really a niche issue, not something most people need to think about.
If only things were that straightforward. In fact, problems for EMTU manufacturers become problems for vessel owners. If “type-approval” gets yanked for a manufacturer, or isn’t renewed, that means everyone using that particular device has to trash it and buy a new one that is “type-approved.”
In a “Memorandum on Proposed Amendment to the Vessel Monitoring System Type-Approval Rule – Regulatory Impact Review,” James Landon, Director of the Office of Law Enforcement, estimates that based on an upcoming type-approval renewal, 155 units would need to be replaced if type-approval for a particular model was not renewed. Landon further estimates acquisition and installation costs would be approximately $3,500 per EMTU, approximately $542,500 total.
Importantly, there is a provision in the VMS program that provides reimbursement for vessel owners required to buy new EMTUs through no fault of their own. However, Landon notes that NMFS would provide “up to a maximum of $3100 per unit;” importantly, that reimbursement is subject to the “availability of funds.” Just as critical Landon writes that “there could also be costs associated with any fishing down time that might occur as a result of the need to coordinate the acquisition of a new approved VMS unit and arrange an appointment with a service professional to install the unit.”
Renewal presents other potential issues. Consider: what other product sector is more dynamic than electronics? The renewal program, however, was for the device as it was originally presented three years earlier. Changes and improvements could jeopardize “type-approval.” For a manufacturer, renewal might not even be worth the effort if, during the previous three years, a product was upgraded and modified. In that case, a new type-approval for a new, more advanced unit might make more sense.
Progress, of course, is great, but, again, vessel operators aren’t allowed any lapses in “type-approval.” If there was no official renewal from a manufacturer, for that now three-year-old unit, it’s the vessel owners who stand liable for non-compliance even though the unit may be working perfectly, still providing all required monitoring data.
If Catch-22 seems to creep in here, take heart: NOAA’s program revisions, proposed last December, would do away with the three-year renewal requirement altogether. NOAA wrote:
“The type-approval renewal provisions were designed to provide for an in-depth look at the type-approval holder’s overall record of compliance with type-approval requirements. However, NMFS’ experience with the renewal process has shown that it is cumbersome for both type-approval holders and NMFS OLE (Office of Law Enforcement).”
“The objective of the proposed action,” NOAA explained in the December notice, “is to eliminate the unnecessary time and cost to the fishermen, VMS vendors, and the government associated with VMS type-approval renewal process.”
As noted, the comment period was reopened on this issue (until March 29), meaning the proposed renewal changes are still to be settled. Importantly, NOAA proposes that type-approval for equipment “would remain valid indefinitely” unless NMFS initiates a revocation process or the “type-approval holder,” i.e., the manufacturer, “chooses or agrees to forfeit their type-approval.”
NOAA’s “revocation process” is important. Changes to renewal should not imply that NOAA is turning its back on vessel monitoring, or allowing a sophisticated program to get rusty, dependent on people with walkie-talkies.
NOAA is confident that the revocation process provides OLE with a “timely way to remove an underperforming EMTU, if necessary.” In its December Federal Register proposal NOAA notes that the VMS Program works with fishermen and the VMS industry “on a daily basis and is continuously monitoring issues, concerns and anomalies that arise with any EMTU’s performance. When an EMTU has performance issues, or anomalies that cannot be resolved informally, NMFS can initiate the type-approval revocation process.”
In other words, if things aren’t working, NOAA will know. The Agency concludes: “The type-approval period and renewal process are therefore unnecessary in addition to being burdensome and costly.”
NOAA seeks to be fair if an EMTU loses type-approval. Program managers have some leeway regarding whether affected units can remain in service, explained Kelly Spalding, NOAA’s Vessel Monitoring System Program Manager. “Fishermen (could) use their units until its end of life, or the units would need to be replaced. The government will set a reasonable time-period to install a new unit and will reimburse costs pursuant to the reimbursement program,” Spalding explained.
It’s also important to point out that the renewal process never really got started. Recall that it was first proposed in 2014, with an effective date in early 2015. The renewal period was set at three years. Therefore, now in 2018, three years later, manufacturers were to start their renewal filings. Of the manufacturers who responded to requests for comments on NOAA’s proposed changes, none wanted to comment publicly. As of this writing, none of the six manufacturers submitted any comments to NOAA’s public docket.
Importantly, this specific regulatory change is likely part of a bigger regulatory program of work.
NOAA’s regulatory Memorandum, for example, makes specific reference to Executive Order 12866, signed by President Clinton in 1993, an EO written to guide presidential oversight of regulatory and administrative policy.
President Trump, in 2017, listed EO 12866 as one of four pillars to help guide his Administration’s new regulatory reform and streamlining initiatives. The point is, the scope of NOAA’s regulatory review probably extends well beyond just this one rule. NOAA and other federal agencies are just starting to build up steam regarding regulatory reform and streamlining.
It is unfortunate that so few people have commented on the proposed renewal changes (there are just three comments posted as of this writing). For an industry that’s as heavily regulated as commercial fishing this proposed change seems welcome, and helpful. Maybe the more important lesson, though, is that regulatory reform and streamlining are just getting underway. Stay tuned: regulators will be asking again about what you think.
Tom Ewing is a freelance writer specializing in energy, environmental and regulatory issues.