[Federal Register Volume 87, Number 39 (Monday, February 28, 2022)]
[Proposed Rules]
[Pages 11014-11037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03572]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No.: 220214-0046]
RIN 0648-BK17
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Amendment 23
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to approve, and implement through regulations,
measures included in Amendment 23 to the Northeast Multispecies Fishery
Management Plan, which the New England Fishery Management Council
adopted and submitted to NMFS for approval. This action would adjust
the existing industry-funded at-sea monitoring program for groundfish
sectors to improve the accuracy of collected catch data (landings and
discards) and catch accounting. The measures selected by the New
England Fishery Management Council in Amendment 23 are intended to
ensure there is a precise and accurate representation of catch to set
catch limit levels that prevent overfishing and determine when catch
limits are exceeded.
DATES: Comments must be received by March 30, 2022.
ADDRESSES: The New England Fishery Management Council (Council) has
prepared an Environmental Impact Statement (EIS) for this action that
describes the proposed measures in
[[Page 11015]]
Amendment 23 to the Northeast Multispecies Fishery Management Plan
(FMP) and other considered alternatives, and analyzes the impacts of
the proposed measures and alternatives. The Council submitted the
amendment to NMFS, including the EIS, a description of the Council's
preferred alternatives, the Council's rationale for selecting each
alternative, and a Regulatory Impact Review (RIR). Copies of supporting
documents used by the Council, including the EIS and RIR, are available
from: Thomas A. Nies, Executive Director, New England Fishery
Management Council, 50 Water Street, Newburyport, MA 01950 and
accessible via the internet in documents available at: https://www.nefmc.org/library/amendment-23.
You may submit comments, identified by NOAA-NMFS-2020-0144, by the
following method:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov
and enter NOAA-NMFS-2020-0144 in the Search box. Click the ``Comment''
icon, complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method or received after
the end of the comment period, may not be considered by NMFS. All
comments received are a part of the public record and will generally be
posted for public viewing on www.regulations.gov without change. All
personal identifying information (e.g., name, address, etc.),
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender will be publicly accessible. NMFS
will accept anonymous comments (enter ``N/A'' in the required fields if
you wish to remain anonymous).
Comments regarding the burden-hour estimates or other aspects of
the collection-of-information requirements contained in this proposed
rule may be submitted to www.reginfo.gov/public/do/PRAMain. Find this
particular information collection by selecting ``Currently under 30-day
Review--Open for Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Mark Grant, Fishery Policy Analyst,
(978) 281-9145.
SUPPLEMENTARY INFORMATION:
Amendment 23 Summary
The Council initiated Amendment 23 to consider changes to the
groundfish monitoring and reporting system to ensure it is providing
accurate catch information necessary to manage the fishery effectively.
The alternatives considered in this action focus on measures that
adjust the existing industry-funded sector monitoring program to
improve the accuracy of collected catch data (landings and discards)
and catch accounting. To address these issues, the Council adopted
Amendment 23 to make a number of changes to the industry-funded sector
monitoring program in order to:
Replace the current process for calculating an annual
monitoring coverage target for at-sea monitoring (ASM) with a fixed
monitoring coverage target as a percentage of trips, dependent on
Federal funding. The coverage target would be 100 percent of trips for
4 years, but could be set at less than 100 percent at the maximum level
for which there are sufficient Federal funds to support all agency and
industry costs. Beginning in year 5, the ASM coverage target would be
40 percent of trips but NMFS could increase ASM coverage above the 40-
percent target when Federal funding is available to support all
industry costs. For years with a 40-percent coverage target, Federal
funding would be used to first pay NMFS costs and then support as much
of industry costs as possible. Sectors would be responsible for paying
only the industry costs above the portion supported by Federal funding.
Approve additional electronic monitoring (EM) technologies
as an alternative to human at-sea monitors;
Exclude from the monitoring requirement all trips in
geographic areas with low groundfish catch;
Require periodic evaluation of the monitoring program and
exclusions from the monitoring requirement;
Remove the management uncertainty buffer from the portion
of the ABC allocated to the sector catch share when the monitoring
coverage target is 100 percent; and
Grant authority to the Northeast Regional Administrator to
revise sector reporting requirements to streamline reporting for the
industry.
The proposed measures are discussed in detail below under
Discussion of Proposed Rule Measures. Under the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), we are
required to publish proposed rules for comment after preliminarily
determining that they are consistent with applicable law. The Magnuson-
Stevens Act allows us to approve, partially approve, or disapprove
measures proposed by the Council based only on whether the measures are
consistent with the fishery management plan, plan amendment, the
Magnuson-Stevens Act and its National Standards, and other applicable
law. Otherwise, we must defer to the Council's policy choices. We are
seeking comment on the Council's proposed measures in Amendment 23 and
whether they are consistent with the Northeast Multispecies FMP, the
Magnuson-Stevens Act and its National Standards, and other applicable
law.
Discussion of Proposed Rule Measures
ASM Coverage Target
Amendment 23 would replace the current method for determining the
ASM coverage target for deploying human at-sea monitors, including the
coefficient of variation (CV) standard, stock status criteria, and the
need for an annual determination by NMFS, with a fixed coverage target
as a percentage of trips, dependent on Federal funding. Currently, NMFS
is required to determine an ASM coverage target that at least meets the
30-percent CV specified in the Standardized Bycatch Reporting
Methodology at the overall stock level for each stock of regulated
species and ocean pout; and to monitor sector operations, to the extent
practicable, in order to reliably estimate overall catch by sector
vessels. Analyses included in the Amendment 23 EIS (see ADDRESSES)
demonstrated the CV standard was no longer an effective basis for
determining coverage due to bias that results from differences between
trips that are monitored and trips that are not monitored.
To address bias, the coverage target would be 100 percent of trips
for 4 years, provided Federal funding can support agency and industry
costs. The ASM coverage target in years 1-4 could be less than 100
percent, and would be set at the maximum level for which there are
sufficient Federal funds to support all agency and industry costs. The
at-sea monitoring coverage target would default to 40 percent in years
1-4 if Federal funding cannot completely support all industry costs for
a coverage target greater than 40 percent. In year 5 and beyond, the
coverage target would be 40 percent unless replaced by a subsequent
Council action. However, Amendment 23 would also allow for increased
coverage in year 5 and beyond, when Federal funding is available to
support industry costs. For years with a 40-percent ASM coverage
target, Federal funding would be used to first pay NMFS costs and then
support as much of industry costs as possible. The current method used
to set ASM target coverage levels is not effective to estimate catch
because observed trips
[[Page 11016]]
are not representative of unobserved trips. As a result, biased catch
data undermines management of the fishery. It is not possible at this
time to calculate an ASM coverage target less than 100 percent that
would eliminate or minimize bias sufficiently to ensure catch
accountability because the current catch data are not representative of
the entirety of the sector fishery. The Council chose a fixed ASM
coverage target of 100 percent to address bias by establishing a
baseline of accurate and precise catch information for the fishery. The
100-percent coverage target would increase the accuracy of catch
estimates and reduce the potential for bias more than any other
coverage target considered. Setting the coverage target at 100 percent
also simplifies compliance and enforceability of the monitoring program
by removing a complex system of stratified random sampling. In
addition, while improved monitoring would not solve all of the issues
facing the fishery, a 100-percent coverage target is expected to
provide more information to support better management of this fishery.
Making the coverage target contingent on Federal funding for industry
costs balances the need for improved monitoring with the economic
effects to the fishery. Combined with the option for vessels to use EM
(see ``Electronic Monitoring'' below) and removing the management
uncertainty buffers from the sector portion of the annual catch limit
(ACL) (see ``Elimination of Management Uncertainty Buffer for Sector
ACLs'' below), the increased cost to industry is reduced. ASM coverage
targets of at least 40-percent on a consistent basis would be an
increase from attained coverage levels to date. Higher ASM coverage,
even for a limited time, along with data from EM, could improve the
cost-effectiveness of the monitoring system by providing a baseline of
accurate and precise catch information to be used in the evaluation of
the program that is planned (see ``Review Process for Monitoring
Coverage Rates'' below).
The Council also selected a minimum ASM coverage target of 40
percent in the event that Federal funds are not available in a given
year in order to ensure accurate catch information is still provided
while addressing concerns about industry costs. The minimum target
level of 40 percent will be funded either by sectors (if no Federal
funds are available) or a combination of sectors and Federal funds.
The availability of EM also provides a potential option for sector
monitoring programs to ensure catch accountability. The EM models
address bias by requiring cameras to monitor fishing activity during
the entirety of all sector groundfish trips. The availability and use
of EM will also provide additional data to compare to ASM coverage and
inform NMFS and the Council on the Amendment 23 coverage target's
performance. NMFS proposes several administrative procedural changes to
implement the revised ASM coverage target, but would retain other
aspects of the current requirements. All vessels would continue to
provide advanced notice to NMFS through the pre-trip notification
systems (PTNS) for the purposes of selecting vessels for ASM and
observer deployment. The agency would continue to issue waivers from
ASM for selected trips in specific circumstances, including if an
observer or at-sea monitor is not available to cover the trip, or for
other logistical reasons (e.g., late observer, safety), consistent with
its current practice.
Each year, NMFS would evaluate available Federal funding.
Consistent with the Magnuson-Stevens Act and other applicable laws,
NMFS would determine how much Federal funding is available for the
groundfish sector monitoring program and then use that in conjunction
with other available information (e.g., recent monitoring costs,
estimate of the number of vessels choosing EM) to calculate the ASM
coverage target between 40 and 100 percent for the coming fishing year.
This funding-based determination would replace the current annual
process for determining the ASM coverage target for the sector
monitoring program.
NMFS would announce the ASM coverage target at least 3 weeks before
the annual sector enrollment deadline set by NMFS, if Federal funding
information is available (see ``Determining Total Monitoring Coverage
at a Time Certain'' below). NMFS currently anticipates that existing
available Federal funding would be sufficient to fund at least 2 years
with a 100-percent ASM coverage target.
Electronic Monitoring
Amendment 23 would approve the Audit Model and the maximized
retention model of EM (MREM) for sector vessels to use, in place of
ASM, to satisfy the sector monitoring requirement. EM is expected to
provide important information for NMFS and the Council to consider
during the first 4 years and to provide a suitable basis for sector
monitoring programs to ensure catch accountability. A vessel using EM
would still be subject to Northeast Fishery Observer Program (NEFOP)
coverage, which is set at a level to meet the standardized bycatch
reporting methodology requirements of the FMP and the Magnuson-Stevens
Act. Amendment 23 does not remove or alter the existing authority for
the Regional Administrator to deem types of EM technology sufficient to
be used in place of human at-sea monitors. However, the two EM models
in Amendment 23 would be available for sectors to include in their
operations plans without requiring a separate determination by the
Regional Administrator. Additional forms of EM would still be subject
to approval or disapproval by NMFS.
The audit model is one of the EM models included in Amendment 23.
NMFS previously determined the EM audit model is sufficient to verify a
vessel's submission of information on groundfish discards and other
relevant information (e.g., date and time, gear category, location) for
the purpose of catch accounting, provided that the vessel's captain and
crew adhere to catch handling and reporting requirements as described
in the vessel-specific monitoring plan (VMP) (86 FR 16686; March 31,
2021). The VMP details specific fish handling protocols, policies, and
procedures; as well as the number and location of cameras. VMPs are
reviewed and approved by NMFS prior to a vessel enrolling in EM to
ensure the set-up is adequate to support data collection needs and
requirements. Under the audit model, the vessel operator and crew hold
groundfish discards on a measuring board and under a camera prior to
discarding, and discard other species in view of cameras at designated
discard control points. The vessel operator estimates the total weight
of groundfish discards on an electronic vessel trip report (eVTR), and
submits the video footage to the EM service provider. The EM service
provider reviews trips selected for audit and develops an independent
estimate of groundfish discards for the trip. The EM data are compared
to verify the eVTR-reported catch and discards. NMFS sets the video
review rates for audit model trips and conducts a secondary review of
some trips to evaluate EM provider performance. NMFS may revise audit
rates to ensure accurate reporting and minimize costs. For instance,
vessels that demonstrate higher performance in terms of compliance with
the VMP and accuracy of discard reporting could have lower review rates
than vessels that do not perform as well. Additional detail of the
audit model requirements are contained in the Fishing Years 2021-2022
Sector Operations Plan, Contract, and
[[Page 11017]]
Environmental Assessment Requirements guide (https://bit.ly/3pdau1L).
Amendment 23 would also approve the MREM model. The goal of MREM is
to verify compliance with catch retention requirements and use dockside
monitoring (DSM) to collect information on allocated groundfish
discards at the dock that otherwise would be collected at sea. Under
the MREM model, on all sector EM trips, the vessel operator and crew
are required to retain and land all catch of allocated groundfish,
including fish below the minimum size, specified at 50 CFR Sec.
648.83, that they would otherwise be required to discard. Unallocated
regulated species, ocean pout, and non-groundfish species must be
handled in accordance with standard commercial fishing operations. Any
allowable discards must occur at designated discard control points on
the vessel, described in the vessel's VMP. EM data from the trip would
be reviewed by the EM service provider to verify that the vessel
operator and crew complied with the catch retention requirements. A
human dockside monitor would meet the vessel at port upon its return
from each trip to observe the offload and collect information on the
catch (particularly fish below the minimum size). Landings of all fish
by MREM vessels, including fish below the minimum size in the
regulations, would be reported to NMFS by the dealer.
Approving EM models as alternatives to human ASM provides each
sector the flexibility to choose the monitoring options (ASM, audit
model EM, MREM) that best meet the needs of its members and ensure
catch accountability. Through their operations plans, sectors would
develop monitoring plans that describe how the sector would use the
chosen monitoring tools. The intent of implementing the audit model and
MREM through Amendment 23 is to make alternatives to human ASM
available now while also retaining authority for the Regional
Administrator to approve additional tools in the future. The goal is to
provide sectors with additional tools to monitor catch that ensure
precise and accurate catch estimation and minimize the potential for
bias because EM is active on 100 percent of sector groundfish trips.
These EM options are expected to eliminate bias and eliminate the
coordination of human logistics for trips not assigned NEFOP coverage.
Both EM models increase flexibility for sectors and their vessels to
choose the monitoring option that best suits their business and
operational needs while offering potential reductions in monitoring
costs. The audit model may be most suitable for lower volume groundfish
trips because it requires extra catch handling. MREM may be better
suited for larger volume vessels where the catch handling protocols of
the audit model present logistical challenges. DSM is a required
component of MREM and may be easier to facilitate at dealers that are
prepared to handle large volume offloads. The economic analyses in the
EIS suggest that when both the audit model and MREM are available to
vessels, as alternatives to ASM, the costs of 100-percent monitoring
may be reduced for individual vessels and the fishery as a whole.
A vessel may only use the audit model or MREM to meet the sector
monitoring requirement if its sector includes that EM model in its
approved operations plan. A vessel must opt into an EM program for an
entire fishing year, with two exceptions. First, a sector may allow a
vessel a single opportunity to opt in/out of EM at any time during a
fishing year if the sector operations plan includes both an approved
ASM and EM plan. Second, if a vessel changes to a gear type not covered
in the VMP, the vessel may temporarily become an ASM vessel until the
VMP authorizing the use of the new gear type is approved. Vessels using
EM must have their EM system operational and running on every sector
groundfish trip, including trips that would be excluded from the ASM
requirement (see ``Exclusion from Monitoring Requirements for Certain
Vessel Under Certain Conditions'' below), unless issued a waiver by
NMFS or assigned an ASM. During each sector EM trip taken by a vessel,
the EM system records all fishing activity onboard the vessel. The
vessel operator and crew sort fish and make any allowable discards
within view of the cameras in accordance with the catch handling
protocols described in the VMP.
NMFS proposes to implement the audit model consistent with the
operational program implemented in fishing year 2021. Amendment 23
specified that vessels using audit model EM in place of ASM would be
required to report discards at the haul level. However, the current
operational audit model allows vessels to report discards at the sub-
trip level, rather than the haul level. Haul-level reporting would
require the vessel to fill out a new eVTR for each haulback of a trawl
net, each haul of a string of gillnets, and each haul of fixed hook
gear while sub-trip-level reporting requires a new eVTR only when a
vessel changes gear type or mesh size, or physically changes location
to a different statistical area. As part of implementing Amendment 23,
NMFS proposes to allow vessels using the audit model to continue
reporting discards at the sub-trip level, rather than the haul level,
and is soliciting comment on this proposal (see ``Sector Reporting''
below).
NMFS proposes to implement MREM consistent with the NOAA Fisheries
MREM program detailed in the draft Sector Operations Plan, Contract,
and Environmental Assessment Requirements guide for fishing year 2022
available at: https://media.fisheries.noaa.gov/2022-01/210826_SectorOpsEAGuidanceFY2021_2022_Revised.pdf. Under MREM, the
vessel operator and crew must adhere to the following catch handling
requirements: Retain and land all catch of allocated groundfish,
including any sublegal-size catch and unmarketable fish; discard
unallocated groundfish stocks (i.e., windowpane flounder, ocean pout,
wolffish, Atlantic halibut) at designated discard control points;
handle all other species in accordance with standard commercial fishing
operations, including adhering to possession limits for halibut and
non-groundfish species; and sort unmarketable fish separately from fish
below the minimum legal size.
MREM vessels must also participate in a DSM program. NMFS proposes
to initially continue to operate a DSM program for MREM vessels while
working with partners to pilot a third-party DSM program. Subsequently,
an industry-funded DSM model would be implemented and sectors would be
required to contract with approved DSM providers to cover their MREM
vessels. The vessel operator must notify the DSM program of its
intention to sail prior to beginning a sector EM trip. Either the
vessel operator or dealer must provide an offload time to the DSM
program in advance of landing. The advance notice of landing and
offload schedule will be dependent on the nature of the vessel's
activity (e.g., day boat vs trip boat vessels) and will be defined in
the vessel's VMP. The vessel operator, crew, and dealer must offload
all allocated groundfish in the presence of the dockside monitor. The
vessel operator and crew may not begin offloading unless a dockside
monitor is present or they have received a waiver from the DSM program.
The vessel operator must allow the dockside monitor access to the fish
hold immediately following the offload in order to confirm all
allocated groundfish were offloaded. The vessel operator and crew or
dealer personnel must separate sublegal allocated groundfish catch by
species, except in instances where the
[[Page 11018]]
sublegal component of a high-volume target species (i.e., redfish,
haddock, and pollock) is combined with fish in the terminal legal-sized
market category. The vessel operator and crew or dealer personnel must
also separate unmarketable fish from fish below the minimum size.
NMFS also proposes requirements for Northeast multispecies dealers
to facilitate DSM for MREM vessels. Federally permitted Northeast
multispecies dealers would be required to allow dockside monitors
access to their premises, scales, and any fish received from vessels
participating in the MREM program for the purpose of collecting fish
species and weights of fish received by the dealer, fish length
measurements, and the collection of age structures such as otoliths or
scales. The primary dealer would be required to retain all sublegal
allocated groundfish catch in order to be weighed and sampled by the
dockside monitor. Dealers would be required to clearly mark all
containers containing sublegal catch to facilitate tracking, and would
be required to provide settlement documents to the DSM program for any
allocated groundfish forwarded to secondary dealers. This is intended
to provide a ready means for dealers to show when they possess
undersized fish landed from MREM vessels. The implementing regulations
deemed by the Council inadvertently omitted this requirement, but it is
included in the regulations proposed in this rule. We highlight this
change from the deeming requirements to ensure the Council and the
public have an opportunity to comment on this addition to the
implementing regulations.
Dealers would also be required to provide dockside monitors with
access to facilities equivalent to what is provided to the dealer's
staff, including: A safe sampling station, with shelter from weather,
for dockside monitors to conduct their duties and process catch; access
to bathrooms; and access to facilities for washing equipment with fresh
water. The intent of the dealer requirements is not to require dealers
to create or provide facilities that do not already exist, but to
ensure dockside monitors have access to facilities equivalent to what
is available to the dealer's staff.
The proposed EM programs raise several implementation issues that
NMFS is highlighting for comment. First, as noted above, NMFS proposes
that vessels using EM must have their EM system operational and running
on every sector groundfish trip, including trips that would be excluded
from the ASM requirement, unless issued a waiver by NMFS or assigned an
ASM. Throughout the development of EM, we have found that vessels are
most successful at complying with their VMP when it is followed on all
groundfish trips. Further, this requirement is consistent with the
Council's intent that EM tools meet or exceed the ASM coverage target
to ensure catch accountability. Vessels that are interested in fishing
in ways that would be excluded from ASM (see ``Exclusion from
Monitoring Requirements for Certain Vessel Under Certain Conditions''
below) may choose to use ASM, rather than adopting EM, and be excluded
from the sector monitoring requirement on trips with low groundfish
catch. Second, some discards of allocated groundfish occur on MREM
trips and the Council should consider how to account for those fish.
This would include operational discards (fish that drop out of the gear
into the ocean, fish taken by birds), accidental discards, and
intentional discards. These discards cannot always be estimated using
EM technology. Third, vessels must discard any red hake in excess of
the possession limit, but those fish cannot be distinguished from white
hake using cameras. The Council may want to consider this interaction
between the NE Multispecies FMP and the small-mesh fishery and
potential methods for fully accounting for catch of these two stocks by
MREM vessels.
Determining Total Monitoring Coverage at a Time Certain
Amendment 23 would require the Regional Administrator to determine
the ASM coverage target at least 3 weeks prior to the annual sector
enrollment deadline set by NMFS. The date NMFS announces the annual ASM
coverage target in past years has varied from January 25 to March 26
and has sometimes been later than the sector roster deadline for that
fishing year (see Table 65 in the EIS, see ADDRESSES). This action sets
a fixed ASM coverage target; however, the monitoring coverage target is
dependent on available Federal funding (see ``ASM Coverage Target''
above and ``Higher Monitoring Coverage Levels if NMFS Funds Are
Available'' below). The Council identified the importance for industry
to know the ASM coverage target at a time certain in advance of the
start of the fishing year because the ASM coverage target may have
industry costs when Federal funding cannot at least support NMFS and
industry costs for a 40-percent ASM coverage target. Therefore, this
rule proposes NMFS will announce the ASM coverage target at least 3
weeks before the annual sector enrollment deadline set by NMFS, if
Federal funding information is available. In years when Federal funding
information is not available prior to the sector enrollment deadline,
the ASM coverage target will be announced as soon as practicable.
Review Process for Monitoring Coverage Rates
As part of the revisions to the groundfish sector monitoring
program, Amendment 23 includes a Council review process to evaluate the
effectiveness of the increased ASM coverage target. The Council would
undertake the review once two full fishing years of data are available
(likely in year 3 following implementation), and periodically
thereafter. The Council review process is intended to be flexible and
somewhat general, but would include establishing metrics and indicators
of how well the monitoring program improved accuracy while maximizing
value and minimizing costs. As a priority for 2021, the Council
recommended that the Groundfish Plan Development Team develop the
review process metrics based on the Council's final preferred
alternatives in Amendment 23. The Council discussed that the scope of
the review would be different if 100 percent coverage levels are
selected compared to lower coverage levels. The Council selected a
fixed ASM coverage target 100 percent of trips, but also selected a
default ASM coverage target of 40-percent coverage in the event that
Federal funds are not available to support industry costs for higher
monitoring coverage. The review process if the ASM coverage target is
100 percent could include metrics such as discard estimate CVs and a
measure of how catch (discards and landings) changed following
implementation of comprehensive monitoring. For lower ASM coverage
targets, the review may include additional metrics to ensure monitoring
targets were met and were effective, and might include analyses of
whether the program is operating in a way the Council intended, whether
catch is being measured accurately, or whether there is evidence of
bias.
The intent of the review process is to evaluate whether the revised
groundfish sector monitoring program, and particularly the increased
ASM coverage target, is meeting the Council's goal of improved accuracy
of catch data and catch monitoring while maximizing the value of the
data collected and minimizing the costs of the monitoring program. The
Council would be responsible for the review and the results would
support potential future Council action to refine the groundfish
[[Page 11019]]
sector monitoring program or revise the ASM coverage target. NMFS may
also review the sector monitoring program to assist the Council in its
review and to ensure the sector monitoring program meets requirements
of the Magnuson-Stevens Act, particularly the requirement to specify
ACLs at a level that prevents overfishing, including measures to ensure
accountability.
Waivers From Monitoring Requirements
Amendment 23 includes a provision to allow waivers exempting
individual vessels from industry-funded monitoring requirements, for
either a trip or the fishing year, if coverage would be unavailable due
to insufficient funding for NMFS administrative costs to meet the ASM
coverage target. The waivers would include coverage for ASM and EM,
including DSM for MREM vessels. Allowing the potential to issue these
waivers preserves the Council's intent to increase monitoring in the
groundfish fishery without creating a requirement that could prevent
vessels from participating in the groundfish fishery if monitoring
coverage was not available.
As described above, NMFS would evaluate available Federal funding
each year (see ``ASM Coverage Target'' above). If NMFS determines that
there is insufficient funding to pay for its cost responsibilities, as
defined in Sec. 648.11(g)(3), for an ASM coverage target of at least
40 percent, then vessels would continue to be required to notify NMFS
of all trips through the PTNS, but NMFS would issue a waiver for a
sector trip exempting the vessel from the sector monitoring program
coverage requirements. If NMFS waives monitoring requirements due to
insufficient funding, as part of its review the Council would consider
whether changes to the FMP were necessary to ensure effective
management if the ASM coverage target was less than 40 percent.
Exclusion From Monitoring Requirements for Certain Vessel Under Certain
Conditions
Amendment 23 excludes sector fishing trips fished in their entirety
west of 71[deg]30' W Longitude from the ASM requirement. The Council
included this provision to minimize the costs of the overall increase
in monitoring because the majority of groundfish are caught in waters
east of this boundary. The catch composition includes little to no
catch of many groundfish stocks, with substantial catch of a few
groundfish stocks, for sector vessels fishing exclusively west of
71[deg]30' W Longitude (see Table 73 of the EIS). However, the
proportion of commercial catches for some stocks (Southern New England
yellowtail flounder and winter flounder, southern windowpane flounder,
and ocean pout) caught in this area has been over 25 percent in recent
years.
Vessels would continue to be required to notify NMFS of all trips
through the PTNS, but NMFS would issue a waiver for a sector trip
exempting the vessel from ASM on a trip fishing exclusively west of
71[deg]30' W Longitude. Vessels on a trip excluded from the ASM
requirement under this provision would be required to comply with the
VMS declaration requirements at Sec. 648.10(g)(3), and the transiting
requirements at Sec. 648.81(e) when east of 71[deg]30' W Longitude.
Vessels using EM to satisfy the sector monitoring requirement would be
required to have their system turned on and comply with their vessel
monitoring plan on all trips, including trips fishing exclusively west
71[deg]30' W Longitude.
This proposed exclusion from the ASM requirements raises several
implementation issues and concerns that NMFS is highlighting for
comment and future Council consideration. First, as discussed in more
detail above (see ``Electronic Monitoring'' above), NMFS proposes that
vessels using EM must have their EM system operational and running on
every sector groundfish trip, including trips that would otherwise be
excluded from the ASM requirement under this provision, unless issued a
waiver by NMFS or assigned an ASM. Therefore, this exclusion would not
apply to EM vessels. Second, any catch of groundfish on these trips
would not be monitored and because the 71[deg]30' W Longitude line
splits three statistical areas (533, 537, and 539), some trips in those
statistical areas will have ASM coverage and others will not,
complicating any attempt to use observed trips to estimate catch on
unobserved trips in those areas, including during the Council's review
(see ``Review Process for Monitoring Coverage Rates'' above). The
Council should consider these issues when considering uncertainty
buffers in future actions setting specifications.
Review Process for Vessels Excluded Exempted From Commercial Groundfish
Monitoring Program Requirements
The monitoring revisions in Amendment 23 establish a process for
reviewing measures that exclude certain vessels from the groundfish
monitoring program requirements based on catch composition. This
includes the existing gear-based exclusion from the ASM requirement,
implemented by Framework 55, for sector trips that exclusively fish
using gillnets of 10-inch (24.5-cm) or larger mesh in the Inshore
Georges Bank and/or the Southern New England Broad Stock Areas; and the
Amendment 23 provision excluding sector fishing trips taken in their
entirety west of 71[deg]30' W Longitude (see ``Exclusion from
Monitoring Requirements for Certain Vessel Under Certain Conditions''
above). The Council will conduct this review after two years of fishing
data are available and every three years after that.
The intent of the review process is to evaluate whether the trips
excluded from the ASM requirement continue to catch small amounts of
groundfish. The Council raised a concern that it did not want vessels
to change their fishing behavior and target groundfish on trips
excluded from the ASM requirement. The review would also be important
to evaluate whether exclusions from the ASM requirement undermine the
monitoring program or other measures of the FMP. The Council would be
responsible for the review and the results would support potential
future Council action.
Higher Monitoring Coverage Levels if NMFS Funds Are Available
Amendment 23 would allow for ASM at higher coverage levels than the
ASM coverage target selected by the Council, up to 100 percent, if NMFS
determines funding is available to cover the additional administrative
costs to NMFS and sampling costs to industry in a given year. This
measure would apply to year 5 and later, when the ASM coverage target
would otherwise be 40 percent of sector trips.
Monitoring coverage of 100 percent of trips, or as close to 100
percent as achievable increases the accuracy of catch estimates and at
least reduces, if not eliminates, the potential for bias. Higher
coverage levels, even for a limited time, could inform understanding of
the magnitude of bias, and inform future actions on the value of higher
monitoring coverage levels. ASM coverage of 100 percent of trips is
currently considered to remove or reduce bias to the greatest extent
practicable; however, it may be impracticable for industry or NMFS to
fund costs associated with complete ASM coverage, resulting in a lower
ASM coverage level. Higher levels of ASM coverage would substantially
increase costs to NMFS and sectors. Making the ASM coverage target
contingent on Federal funding for industry costs balances the need for
improved monitoring with the economic impacts on the fishery.
[[Page 11020]]
Each year, NMFS would evaluate available Federal funding and
determine how much Federal funding is available for the groundfish
sector monitoring program and then use that in conjunction with other
available information (e.g., recent monitoring costs, estimate of the
number of vessels choosing EM) to calculate the ASM coverage target for
the coming fishing year.
Elimination of Management Uncertainty Buffer for Sector ACLs
Amendment 23 includes an option to revise the management
uncertainty buffer for the sector portion of the ACL for each allocated
groundfish stock to be set to zero. The NE Multispecies includes a
process for setting an overfishing limit (OFL) for groundfish stocks.
The OFL represents the maximum amount of fish that can be caught in a
year without resulting in overfishing. The Council typically recommends
an acceptable biological catch (ABC) for a groundfish stock that is
lower than the OFL to account for scientific uncertainty. The Council
sets an ACL at a level below the ABC to account for management
uncertainty, and this serves as a buffer to prevent the fishery from
exceeding the ABC. The management uncertainty buffer accounts for the
possibility that management measures will result in a level of catch
greater than expected. The Council evaluates the management uncertainty
buffers in each specification-setting action.
The revised management uncertainty buffers would apply only to
sectors, and not to the common pool component of the fishery, or other
sub-ACLs or sub-components for any stocks. The management uncertainty
buffer may be removed only in years in which the ASM coverage target is
100 percent. The process by which the Council evaluates and sets
management uncertainty buffers remains unchanged and the Council could
adjust management uncertainty buffers in future actions. The need for a
management uncertainty buffer for the sector sub-ACL would continue to
be evaluated as part of each specification action.
Monitoring adequacy, precision, and enforceability of management
measures are three of the elements considered in setting the management
uncertainty buffer. An ASM coverage target of 100 percent could
minimize all of those sources of management uncertainty for the sector
fishery. The full accountability associated with comprehensive
monitoring could remove uncertainty about whether management measures
successfully restrain catch by sector vessels to the sector quotas.
Eliminating uncertainty in quantifying true sector catch could make the
management uncertainty buffer unnecessary for the sector program.
Removing the buffer provides direct benefits to the fishery by
providing opportunity for additional catch and revenue. Increased catch
and revenue may reduce the net costs of increased monitoring.
NMFS would make an annual determination prior to the start of the
fishing year as to whether the buffers would be eliminated based on the
ASM coverage target set for the fishing year. If Federal funds are not
available for 100 percent ASM coverage and a lower target coverage
level is set, the management uncertainty buffers would be in place for
that fishing year, subject to the Council's review as part of each
specification action. If 100-percent monitoring coverage is determined
not to be effective, or if any additional elements evaluated when
setting the management uncertainty buffers have the potential to result
in catches that could exceed ACLs, the PDT would recommend an
appropriate management uncertainty buffer for the sector sub-ACLs as
part of actions setting specifications.
This proposed elimination of the uncertainty buffer for sectors
raises several issues that NMFS is highlighting for comment and future
Council consideration. First, as discussed above, Amendment 23 excludes
sector fishing trips taken in their entirety west of 71[deg]30' W
Longitude from the ASM requirement, but for some stocks (southern New
England yellowtail flounder and winter flounder, southern windowpane
flounder, and ocean pout) catch in this area has been over 25 percent
in recent years. Further, 71[deg]30' W Longitude splits three
statistical areas (533, 537, and 539), making estimation of catch on
those trips more complicated. Second, some operational discards (e.g.,
fish fall from the net, birds steal fish) of allocated groundfish occur
on MREM trips and the Council should consider how to account for those
fish. Third, eliminating the uncertainty buffer from the sector
allocations would result in negligible sector carryover because sector
carryover from one year to the next is limited by the management
uncertainty buffer between the ACL and ABC in year 2. These issues
arose after the Council made its final decision on Amendment 23. We
highlight these issues to ensure the Council and the public have an
opportunity to comment on how NMFS proposes to address these issues.
Sector Reporting
Amendment 23 would authorize the Regional Administrator to modify
the sector monitoring requirements at Sec. 648.87(b)(1)(v) and the
sector reporting requirements at Sec. 648.87(b)(1)(vi) to streamline
the sector reporting process. Each week, each sector must submit to
NMFS a summary catch report, including quota balances; a detailed catch
report with catch for each trip; and a trip issue report detailing any
enforcement or reporting compliance issues, violations of sector
operations and regulations, and general problems with monitoring or
sector operations. When a sector has caught 90 percent of any quota,
that sector must submit daily catch reports. Each sector must also
submit an annual report that summarizes the fishing activities of
participating vessels.
More efficient methods might be developed that would still involve
timely monitoring and reconciliation of data sources between sectors
and NMFS. For example, NMFS could eliminate the requirement for sectors
to submit weekly and daily reports and instead provide monitoring
summaries for the sectors to use for catch accounting and managing
annual catch entitlements, while continuing the process where NMFS and
sectors reconcile catch data to confirm accuracy. Authorizing the
Regional Administrator to streamline the sector reporting process could
help to reduce reporting redundancies, provide flexibility to sectors
and sector managers, and improve timeliness of data processing.
As discussed above (see ``Electronic Monitoring''), Amendment 23
specified that vessels using Audit Model EM in place of ASM would be
required to report discards at the haul level. However, the current
operational Audit Model allows vessels to report discards at the sub-
trip level, rather than the haul level. As part of implementing
Amendment 23, NMFS proposes using the authority to streamline sector
reporting requirements to allow vessels using the Audit Model to
continue reporting discards at the sub-trip level, rather than the haul
level, and is soliciting comment on this proposal.
Addition to List of Framework Items
The regulations at Sec. 648.90 list management measures that may
be changed or implemented through specifications or framework actions.
During the development of Amendment 23, the Council identified a list
of specific issues that may be addressed through future specifications
actions or
[[Page 11021]]
framework adjustments. All alternatives considered in Amendment 23
would be added to the list of FMP items that may be considered in a
future framework. Specifically, this includes:
The addition of new sector monitoring tools (e.g., EM,
other technologies or approaches) that meet or exceed the Council's
selected monitoring standard;
Setting vessel-specific coverage targets instead of
coverage targets applicable at the sector level; and
All the Amendment 23 measures discussed in detail above.
Amendment 23 includes two options for electronic monitoring that
would be available for sectors to include in their operations plans
without requiring a separate determination of sufficiency by NMFS.
Further evolution of technology or development of analytical methods
could lead to additional or better tools for achieving the goals of the
monitoring program. It is not possible to forecast technology changes,
but it is expected that in the future there may be additional
technologies that would benefit the monitoring program that the Council
could adopt through a framework.
A vessel-specific coverage level would require each vessel to meet
the target coverage level, rather than evaluating the target at the
sector level. The intent would be to reduce the variation in the amount
of industry-funded monitoring coverage applicable to each vessel.
The intent of adding all alternatives considered in Amendment 23 to
the list of framework items is to allow adjustments to groundfish
monitoring program to be considered in a framework action. This would
support a Council response to the new review requirements that would be
implemented as part of Amendment 23. The regulations at Sec.
648.90(a)(2)(iii) would be revised to specify that the Council could
consider these items in a future framework adjustment.
Regulatory Adjustments and Corrections Under Regional Administrator
Authority
NMFS is proposing several changes to the regulations consistent
with section 305(d) of the Magnuson-Stevens Act, which provides that
the Secretary of Commerce may promulgate regulations necessary to
ensure that amendments to an FMP are carried out in accordance with the
FMP and the Magnuson-Stevens Act. These adjustments do not make any
substantive changes to the current regulations, but are intended to
improve the clarity of the regulations.
First, NMFS would revise Sec. 648.2 to add definitions of terms
related to EM that are used in the implementing regulations for
Amendment 23 and clarify and consolidate definitions related to
individuals that collect data for NMFS. Second, NMFS would move the
sector monitoring program regulations from Sec. 648.87 to Sec.
648.11. Third, NMFS would revise Sec. 648.11 to update the names of
divisions within NMFS. Fourth, NMFS would revise Sec. Sec. 648.2,
648.10, 648.11, 648.14, 648.51, 648.80, 648.86, and 648.202 to clarify
that individuals undergoing observer training are included in
regulatory provisions that apply to certified observers. Finally, NMFS
would revise Sec. 648.14(k) to correct a typographical error where
text is missing and to clarify application of the prohibitions to EM.
Finally, due to the extensive regulatory changes in this action, we
are updating references throughout the groundfish regulations that will
change based on the proposed regulatory adjustments. We have included a
summary of all of the proposed regulatory changes in this rule in Table
1.
Table 1--Summary of Proposed Regulatory Changes to 50 CFR Part 648
----------------------------------------------------------------------------------------------------------------
Section Authority Summary of proposed changes
----------------------------------------------------------------------------------------------------------------
Sec. 648.2.................. Amendment 23 and 305(d)...... The existing definition of ``electronic
monitoring'' is revised and new definitions for
``electronic monitoring audit model'' and
``electronic monitoring maximized retention
model'' are added to address the EM models
included in Amendment 23. A new definition for
``electronic monitoring provider staff'' is
added to accommodate monitoring staff that are
not involved in at-sea or dockside monitoring
tasks. The existing definition of ``observer/sea
sampler'' is deleted and the existing definition
of ``observer or monitor'' is revised to cover
any person, including trainees, who collects
observer information, operational fishing data,
biological data, or economic data for
conservation and management purposes, whether
they work on a vessel or on shore. The
definitions of ``slippage in the Atlantic
herring fishery,'' ``slip(s) or slipping catch
in the Atlantic herring fishery,'' and ``video
reviewer'' are revised to include staff in
training.
Sec. 648.10................. 305(d)....................... Paragraph (f)(4)(i) is revised to include staff
in training.
Sec. 648.11................. Amendment 23 and 305(d)...... The monitoring coverage regulations are revised
to include the groundfish sector monitoring
program regulations currently codified in Sec.
648.87. The newly added groundfish sector
monitoring program regulations include revisions
and additions to the text formerly codified in
Sec. 648.87 to incorporate the proposed
measures to implement Amendment 23. This section
is also revised to clarify the insurance
requirements for monitoring providers, to
clarify that individuals undergoing observer
training are included in regulatory provisions
that apply to certified observers, and to update
the names of divisions within NMFS.
Sec. 648.14................. Amendment 23 and 305(d)...... The prohibitions are revised to address new
regulations implementing Amendment 23 and to
revise citations associated with moving the
groundfish sector monitoring program regulations
currently codified in Sec. 648.87 to Sec.
648.11. The prohibitions are also revised to
address changes to the definitions in Sec.
648.2 that include monitoring staff that are not
involved in at-sea or dockside monitoring tasks
and trainees. Prohibitions are added to address
the dockside monitoring requirements applicable
to dealers at Sec. 648.11 that implement
Amendment 23. Section 648.14(k)(3) is revised to
incorporate missing text stating it is
prohibited to engage in the behaviors listed in
sub-paragraphs. Sections 648.14(i)(1)(ix)(B) and
(r)(2)(iv) are also revised to include staff in
training.
Sec. 648.51................. 305(d)....................... Sec. Sec. 648.51(c)(4) and (e)(3)(iii) are
revised to include staff in training.
Sec. 648.80................. 305(d)....................... Sec. Sec. 648.80(d)(3) and (e)(2)(ii) are
revised to include staff in training.
Sec. 648.83(a)(1)........... Amendment 23................. The text regarding minimum fish sizes for
commercial vessels is revised to exclude fish
landed by MREM vessels from the minimum sizes to
implement Amendment 23.
Sec. 648.85................. Amendment 23 and 305(d)...... Section 648.85(e)(1)(viii)(C) is revised to
address the participation of MREM vessels in the
universal sector exemption for targeting
redfish.
Sec. 648.86................. Amendment 23................. The text regarding NE multispecies possession
limits for commercial vessels is revised to
exclude fish landed by MREM vessels to implement
Amendment 23. Section 648.86(a)(3)(ii)(A)(1) is
also revised to include staff in training.
Sec. 648.87................. Amendment 23................. Section 648.87 is revised by removing the
groundfish sector monitoring program regulations
that are being moved to Sec. 648.11,
redesignating the remaining paragraphs, and
updating citations to the new locations of the
monitoring regulations.
Sec. 648.90................. Amendment 23................. Section 648.90 is revised to include all
Amendment 23 measures as frameworkable items.
The potential to implement vessel-specific ASM
coverage targets was also added to the list of
frameworkable items consistent with Amendment
23. New regulatory text was added specifying
that the sector portion of the management
uncertainty buffer for allocated stocks would be
set to zero when the coverage target is 100
percent, unless the Council chooses to
incorporate a different amount of management
uncertainty for sectors.
[[Page 11022]]
Sec. 648.202................ 305(d)....................... Section 648.202(b)(1) is revised to include staff
in training.
----------------------------------------------------------------------------------------------------------------
Classification
NMFS is issuing this rule pursuant to sections 304(b)(1)(A) and
305(d) of the Magnuson-Stevens Act, which provide specific authority
for implementing this action. Pursuant to Magnuson-Stevens Act section
305(d), this action is necessary to carry out the NE Multispecies FMP,
through administrative changes revising the existing implementing
regulations for the groundfish sector monitoring program to be
consistent with the industry-funded monitoring program regulations,
moving the groundfish monitoring program implementing regulations to
the same chapter as other industry-funded monitoring programs, and
improving the clarity of the existing regulations. Pursuant to section
304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant
Administrator has made a preliminary determination that this proposed
rule is consistent with the NE Multispecies FMP, other provisions of
the Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
The New England Fishery Management Council prepared a final
environmental impact statement for Amendment 23 to the NE Multispecies
FMP; a notice of availability was published on January 21, 2022 (87 FR
3298). A target ASM coverage rate of 100 percent, higher than past and
current coverage levels, will be in place, if sufficient Federal funds
are available, which should result in more accurate information on
catch (landings and discards) of target and non-target species, and
fully account for discard mortality. In the short term, improved catch
accounting is expected to reduce fishing effort and fishing mortality,
which in the long term should allow for rebuilding of overfished
stocks. In the longer-term analytical assessments should improve with
better catch data. If the proposed coverage level target of 100 percent
results in reduced groundfish fishing activity, then it may provide
some minor short-term benefits to habitat. Over the long term, if 100-
percent coverage contributes to higher catch limits, fishing effort
could increase in the future, which could have negative impacts to
habitat. The modifications in management measures may indirectly affect
protected resources, but are not expected to have substantial impacts
on protected resources. This action is expected to have a range of
potential socioeconomic impacts, depending on the availability of
Federal funding for monitoring and the ultimate ASM coverage target. A
target at-sea monitoring coverage rate of 100 percent will be in place,
if sufficient Federal funds are available, which will result in
relatively neutral impacts on operating costs compared to those under
past and current coverage levels. However, if no Federal funding is
available, the ASM coverage rate target would be 40 percent, which
would increase fleet wide operating costs by an estimated $2.09 million
per year. Economic effects could be lower if any subsidy is available
to offset the cost of monitoring, or depending on the number of vessels
that use electronic monitoring (EM) in lieu of human at-sea monitoring.
Initial costs of installing and purchasing EM equipment may be high
which may have negative impacts in the short term, if not subsidized,
but over the long term EM may be more cost effective than human at-sea
monitors. EM is expected to be more cost effective for vessels who fish
more in the groundfish fishery (i.e., greater than 20 days per year).
Based on the amount of available funds that have been allocated to
reimburse sectors for monitoring as of 2021, there appears to be
sufficient funds for at least 2 years of 100-percent monitoring
starting in fishing year 2022. In addition, 100-percent at-sea
monitoring coverage may be seen as overly burdensome by fishing
communities. However, under 100-percent monitoring coverage the
enforceability of the FMP and the risk of non-compliance both improve,
which should improve the fairness and equitability of management
measures. In the short term, economic impacts of 100-percent at-sea
monitoring coverage on human communities would be reduced while Federal
reimbursements for monitoring costs are available. Impacts over the
long term will vary depending on whether Federal reimbursements of
monitoring costs continue into the future.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA describes the economic impact this proposed rule, if adopted,
would have on small entities. A copy of the IRFA, contained in the
Environmental Impact Statement, is available from the Council (see
ADDRESSES). A description of the action, why it is being considered,
and the legal basis for this action are contained at the beginning of
this section in the preamble and in the SUMMARY section of the
preamble. No relevant Federal rules duplicate, overlap, or conflict
with this proposed rule. A summary of the analysis follows.
Description of the Reasons Why Action by the Agency Is Being Considered
and Statement of the Objectives of, and Legal Basis for, This Proposed
Rule
This action is taken under the authority of the Magnuson-Stevens
Act and regulations at 50 CFR part 648.
The primary purpose of this action is to improve accounting of
landings and discards in the commercial groundfish fishery, while also
taking into account the costs of such monitoring. Catch of commercial
groundfish in the sector component of the fishery is managed via a
quota system, where pounds of each groundfish species are allocated
annually to sectors (essentially cooperatives) and all fish caught,
including discards, must be accounted against these shares of quota.
Quota shares (pounds) are ``leased'' (traded) among sectors, with each
sector agreeing to a lease price prior to executing the trade. Catch
that is discarded or landed without accounting would save sectors and
the businesses that comprise those sectors the value of the leased
quota pounds. To ensure that all sectors are accountable to their
annual allocations, various monitoring methods were considered in
Amendment 23.
Description and Estimate of the Number of Small Entities to Which This
Proposed Rule Would Apply
This action would regulate all commercial fishing businesses issued
a Federal limited access NE multispecies vessel permit and/or a NE
multispecies dealer permit. As of June 1, 2020, NMFS had issued 828
commercial limited access groundfish permits associated with vessels
and 148 permits associated with dealers. Therefore, 976 permits are
regulated by this action. Each vessel or dealer may be individually
owned or part of a larger corporate ownership
[[Page 11023]]
structure, and for RFA purposes, it is the ownership entity that
ultimately would be regulated by the proposed action. Ownership
entities are identified on June 1 of each year, based on the list of
all permit numbers, for the most recent complete calendar year, that
have applied for any type of Northeast Federal fishing permit. The
current ownership data set is based on calendar year 2019 permits and
contains gross sales associated with those permits for calendar years
2017 through 2019.
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (see 50 CFR 200.2). A business primarily
engaged in commercial fishing (NAICS code 11411) is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11 million for all its
affiliated operations worldwide. The determination as to whether the
entity is large or small is based on the average annual revenue for the
three years from 2017 through 2019. Ownership data collected from
vessel permit holders indicate that there are 667 distinct business
entities that hold at least one vessel permit regulated by the proposed
action. Of these, all are engaged primarily in commercial fishing, and
80 did not have any revenues (were inactive) in 2019. Of these distinct
business entities, 661 are categorized as small entities and 6 are
categorized as large entities, per the NMFS guidelines. Ownership data
collected from dealer permit holders indicate there are 148 distinct
business entities that hold at least one dealer permit regulated by
this action. Of these, 135 distinct businesses are categorized as small
entities and 13 are categorized as large entities, per the NMFS
guidelines.
Federal Rules Which May Duplicate, Overlap, or Conflict With This
Proposed Rule
The proposed action does not duplicate, overlap, or conflict with
any other Federal rules.
Description of Significant Alternatives to the Proposed Action Which
Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact on Small Entities
The New England Fishery Management Council selected all
alternatives that met the objectives of the action, and minimized
costs, to provide regulated businesses the ability to choose the
monitoring options that best suit their operations while meeting the
catch accounting requirements.
Description of the Projected Reporting, Record-Keeping, and Other
Compliance Requirements of This Proposed Rule
A description of the projected reporting, recordkeeping, and other
compliance requirements of this proposed action, including an estimate
of the classes of small entities that will be subject to the
requirements is contained in the Notice of Information Collection
published December 17, 2021 (86 FR 71624), and summarized below.
This proposed rule contains a collection-of-information requirement
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). This rule revises, and
renews, the existing requirements for the collection of information
0648-0605, titled ``Northeast Multispecies Amendment 16.'' These
revisions are due to an increased monitoring and reporting burden from
higher ASM coverage targets; additional reporting and data collection
through voluntary options for sector monitoring tools (audit model EM
and MREM); potential for increases or decreases in monitoring and
reporting burden as a result of coverage level changes from funding
provisions; and an additional VMS declaration required for vessels
fishing on a trip exclusively west of 71[deg]30' W longitude to be
excluded from the ASM requirement.
In 2010, we implemented a new suite of regulations for the NE
multispecies fishery through Amendment 16 to the NE Multispecies FMP.
Amendment 16 required sectors to develop and fund an independent third-
party ASM program. Amendment 16 allowed sectors to use EM instead of
human monitors to meet ASM requirements, provided that the Greater
Atlantic Regional Administrator deemed EM sufficient. Using the
authority and process granted to it in Amendment 16, NMFS announced its
determination that sectors may use EM to meet monitoring requirements
(86 FR 16686; March 31, 2021). To implement this change, we are
proposing to collect additional data elements necessary to support an
EM program. Specifically, we propose to require the development and
submission of VMPs and trip-level feedback reports, both of which are
critical for accurate catch data and management of ACLs. We also
propose to require the collection of information related to the
purchase and installation of EM equipment. This is necessary for NMFS
to reimburse industry's ASM costs as directed and funded by
Congressional appropriations.
We estimate 1,309 entities will be subject to the existing and new
elements of the information collection. The estimated total annual
burden hours are 73,198. The estimated total annual cost to the public
is $10,632,454 in recordkeeping and reporting costs. These estimates
include the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. The estimated time per
response varies by item within the suite of information collected, as
follows: Sector operations plan and membership list updates, 110 hours;
monitoring service provider initial application, 10 hours; monitoring
service provider response to application disapproval, 10 hours; data
entry for sector discard monitoring system, 3 minutes; sector weekly
catch report, 4 hours; sector annual report, 10 hours; notification of
expulsion from a sector, 30 minutes; request to transfer sector annual
catch entitlement, 5 minutes; request to lease DAS, 5 minutes; request
to downgrade DAS baseline, 5 minutes; VMS area and DAS declaration, 5
minutes; VMS trip-level catch report; VMS daily catch reports when
fishing in multiple broad stock areas, 15 minutes; daily VMS catch
reports when fishing in the U.S./Canada Management Area and Closed Area
II Special Access Programs, 15 minutes; daily VMS catch reports when
fishing in the Regular B DAS Program, 15 minutes; pre-trip hail report,
2 minutes; trip-end hail report, 15 minutes; pre-trip notification
system notification, 2 minutes; vessel notification of selection for
ASM coverage, 5 minutes; at-sea monitor deployment report, 10 minutes;
ASM and EM service provider catch report to NMFS upon request, 5
minutes; at-sea monitor or EM staff report of harassment, safety
concerns, and other issues, 30 minutes; ASM and EM service provider
contracts upon request, 30 minutes; ASM and EM service provider
information materials upon request, 30 minutes; EM VMP development and
submission, 2 hours; EM vessel feedback letters, 30 minutes; EM
equipment installation, 16 hours; EM equipment purchase and
installation reimbursement form, 30 minutes; Office of Law Enforcement
debriefing of at-sea monitors and EM staff, 2 hours; ASM database and
data entry requirements, 0 minutes; DAS Transfer Program, 5minutes;
submission of proposed special access programs, 20 hours; and
[[Page 11024]]
NAFO Reporting Requirements, 23 hours.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Submit comments on
these or any other aspects of the collection of information at
www.reginfo.gov/public/do/PRAMain.
Notwithstanding any other provisions 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 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: February 14, 2022.
Samuel D. Rauch, III
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. Section 648.2 is amended by:
0
a. Revising the definition for ``Electronic monitoring'';
0
b. Adding the definition for ``Electronic monitoring audit model'';
0
c. Adding the definition for ``Electronic monitoring maximized
retention model'';
0
d. Adding the definition for ``Electronic monitoring provider staff'';
0
e. Revising the definition for ``Observer or monitor'';
0
f. Removing the definition for ``Observer/sea sampler'';
0
g. Republishing in alphabetical order the definition of ``Ocean
quahog''.
0
h. Revising the definition for ``Slippage in the Atlantic herring
fishery'';
0
i. Revising the definition for ``Slip(s) or slipping catch in the
Atlantic herring fishery''; and
0
j. Revising the definition for ``Video reviewer''.
The revisions and additions read as follows:
Sec. 648.2 Definitions.
* * * * *
Electronic monitoring means a network of equipment that uses a
software operating system connected to one or more technology
components, including, but not limited to, cameras and recording
devices to collect data on catch and vessel operations. With respect to
the groundfish sector monitoring program, electronic monitoring means
any equipment that is used to meet sector monitoring requirements in
lieu of at-sea monitors as part of an approved sector at-sea monitoring
program, including the audit model and maximized retention model.
Electronic monitoring audit model with respect to the groundfish
sector monitoring program means a program in which all eligible trips
must be electronically monitored; discards are reported at the haul
level; fish must be handled in view of cameras; species identification
and length must be collected for regulated species and ocean pout
discards for catch estimation; allowed discarding must occur at
controlled points in view of cameras; and electronic monitoring data
are compared to the area fished, regulated species and ocean pout
discards, and other information reported on the vessel trip report on a
subset of trips for validation.
* * * * *
Electronic monitoring maximized retention model with respect to the
groundfish sector monitoring program, means a program in which all
eligible trips are electronically monitored; fish must be handled in
view of cameras; allowed discarding must occur at controlled points in
view of cameras; all allocated regulated species stocks must be
retained; electronic monitoring is used to verify compliance; and
offloads are subject to observation by dockside monitors.
* * * * *
Electronic monitoring provider staff means any video reviewer, or
any person employed or contracted by an electronic monitoring service
provider to provide electronic monitoring services to vessels.
* * * * *
Observer or monitor means any person authorized by NMFS to collect
observer information, operational fishing data, biological data, or
economic data for conservation and management purposes on or from
fishing vessels or federally permitted dealers as required by the
regulations, including, but not limited to, observers, at-sea monitors,
observer/sea samplers, portside samplers, or dockside monitors.
Ocean quahog means the species Arctica islandica.
* * * * *
Slippage in the Atlantic herring fishery means discarded catch from
a vessel issued an Atlantic herring permit that is carrying an observer
or monitor prior to the catch being brought on board or prior to the
catch being made available for sampling and inspection by an observer
or monitor after the catch is on board. Slippage also means any catch
that is discarded during a trip prior to it being sampled portside by a
portside sampler on a trip selected for portside sampling coverage by
NMFS. Slippage includes releasing catch from a codend or seine prior to
the completion of pumping the catch aboard and the release of catch
from a codend or seine while the codend or seine is in the water. Fish
that cannot be pumped and remain in the codend or seine at the end of
pumping operations are not considered slippage. Discards that occur
after the catch is brought on board and made available for sampling and
inspection by an observer or monitor are also not considered slippage.
* * * * *
Slip(s) or slipping catch in the Atlantic herring fishery means
discarded catch from a vessel issued an Atlantic herring permit that is
carrying an observer or monitor prior to the catch being brought on
board or prior to the catch being made available for sampling and
inspection by an observer or monitor after the catch is on board.
Slip(s) or slipping catch also means any catch that is discarded during
a trip prior to it being sampled portside by a portside sampler on a
trip selected for portside sampling coverage by NMFS. Slip(s) or
slipping catch includes releasing fish from a codend or seine prior to
the completion of pumping the fish on board and the release of fish
from a codend or seine while the codend or seine is in the water.
Slippage or slipped catch refers to fish that are slipped. Slippage or
slipped catch does not include operational discards, discards that
occur after the catch is brought on board and made available for
sampling and inspection by an observer or monitor, or fish that
inadvertently fall out of or off fishing gear as gear is being brought
on board the vessel.
* * * * *
Video reviewer means any electronic monitoring service provider
staff
[[Page 11025]]
approved/certified or training to be approved/certified by NMFS for
providing electronic monitoring video review services consistent with
electronic monitoring program requirements.
* * * * *
0
3. Section 648.10 is amended by revising paragraph (f)(4)(i) to read as
follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(f) * * *
(4) * * *
(i) For trips greater than 24 hours, the owner or operator of a
limited access or LAGC scallop vessel with an IFQ permit that fishes
for, possesses, or retains scallops, and is not fishing under a NE
Multispecies DAS or sector allocation, must submit reports through the
VMS, in accordance with instructions to be provided by the Regional
Administrator, for each day fished, including open area trips, access
area trips as described in Sec. 648.59(b)(9), Northern Gulf of Maine
RSA trips, and trips accompanied by an observer. The reports must be
submitted for each day (beginning at 0000 hr and ending at 2400 hr) and
not later than 0900 hr of the following day. Such reports must include
the following information:
(A) VTR serial number;
(B) Date fish were caught;
(C) Total pounds of scallop meats kept; and
(D) Total pounds of all fish kept.
* * * * *
0
4. Section 648.11 is amended by:
0
a. Revising paragraphs (a), (b), (d), (h)(1), (h)(3)(vii), (h)(3)(ix)
and (x), (h)(5)(i) through (iv), (h)(5)(vi) and (vii), (h)(7), (i)(1)
and (2), (i)(3)(i), (i)(4)(ii), (i)(5) and (6);
0
b. Adding paragraph (i)(7); and
0
c. Revising paragraphs (j), (k)(4)(i) and (ii), (l), (m)(1)(i) and (v),
(m)(2)(iii)(A), (m)(4)(i), (m)(6) introductory text, and (n)(2)
introductory text.
The revisions and addition read as follows:
Sec. 648.11 Monitoring coverage.
(a) Coverage. The Regional Administrator may request any vessel
holding a permit for Atlantic sea scallops, NE multispecies, monkfish,
skates, Atlantic mackerel, squid, butterfish, scup, black sea bass,
bluefish, spiny dogfish, Atlantic herring, tilefish, Atlantic surfclam,
ocean quahog, or Atlantic deep-sea red crab; or a moratorium permit for
summer flounder; to carry a fisheries observer. A vessel holding a
permit for Atlantic sea scallops is subject to the additional
requirements specific in paragraph (g) of this section. Also, any
vessel or vessel owner/operator that fishes for, catches or lands
hagfish, or intends to fish for, catch, or land hagfish in or from the
exclusive economic zone must carry a fisheries observer when requested
by the Regional Administrator in accordance with the requirements of
this section. The requirements of this section do not apply to vessels
with only a Federal private recreational tilefish permit.
(b) Facilitating coverage. If requested by the Regional
Administrator or their designees, including observers, monitors, and
NMFS staff, to be sampled by an observer or monitor, it is the
responsibility of the vessel owner or vessel operator to arrange for
and facilitate observer or monitor placement. Owners or operators of
vessels selected for observer or monitor coverage must notify the
appropriate monitoring service provider before commencing any fishing
trip that may result in the harvest of resources of the respective
fishery. Notification procedures will be specified in selection letters
to vessel owners or permit holder letters.
* * * * *
(d) Vessel requirements associated with coverage. An owner or
operator of a vessel on which an observer or monitor is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer or monitor access to and use of the vessel's
communications equipment and personnel upon request for the
transmission and receipt of messages related to the observer's or
monitor's duties.
(3) Provide true vessel locations, by latitude and longitude or
loran coordinates, as requested by the observer or monitor, and allow
the observer or monitor access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position.
(4) Notify the observer or monitor in a timely fashion of when
fishing operations are to begin and end.
(5) Allow for the embarking and debarking of the observer or
monitor, as specified by the Regional Administrator, ensuring that
transfers of observers or monitors at sea are accomplished in a safe
manner, via small boat or raft, during daylight hours as weather and
sea conditions allow, and with the agreement of the observers or
monitors involved.
(6) Allow the observer or monitor free and unobstructed access to
the vessel's bridge, working decks, holding bins, weight scales, holds,
and any other space used to hold, process, weigh, or store fish.
(7) Allow the observer or monitor to inspect and copy any the
vessel's log, communications log, and records associated with the catch
and distribution of fish for that trip.
* * * * *
(h) * * *
(1) General. An entity seeking to provide monitoring services,
including services for IFM Programs described in paragraph (g) of this
section, must apply for and obtain approval from NMFS following
submission of a complete application. Monitoring services include
providing observers, monitors (at-sea monitors and portside samplers),
and/or electronic monitoring. A list of approved monitoring service
providers shall be distributed to vessel owners and shall be posted on
the NMFS Fisheries Sampling Branch (FSB) website: https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs.
* * * * *
(3) * * *
(vii) Evidence of holding adequate insurance to cover injury,
liability, and accidental death for any observers, monitors (at-sea or
dockside/roving monitors), or electronic monitoring provider staff who
provide electronic monitoring services onboard vessels, whether
contracted or directly employed by the service provider, during their
period of employment (including during training).
(A) A monitoring service provider must hold Workers' Compensation
and Maritime Employer's Liability for observers, monitors, vessel
owners, and their operations. The minimum combined coverage required is
$5 million.
(B) An electronic monitoring service provider must hold Worker's
Compensation and commercial general liability coverage for electronic
monitoring provider staff. The minimum combined coverage required is $1
million.
(C) Upon request by a vessel owner, operator, or vessel manager, a
monitoring service provider must provide a certificate of insurance, or
other evidence, that demonstrates they have the required coverages
under (A) and (B) of this paragraph as appropriate.
* * * * *
(ix) The names of its fully equipped certified observers, monitors,
or video reviewers on staff; or a list of its training candidates (with
resumes) and a request for an appropriate NMFS-certified
[[Page 11026]]
Training class. All training classes have a minimum class size of eight
individuals, which may be split among multiple vendors requesting
training. Requests for training classes with fewer than eight
individuals will be delayed until further requests make up the full
training class size.
(x) An Emergency Action Plan (EAP) describing its response to an
emergency with an observer, monitor, or electronic monitoring provider
staff on a vessel at sea or in port, including, but not limited to,
personal injury, death, harassment, or intimidation. The EAP shall
include communications protocol and appropriate contact information in
an emergency.
* * * * *
(5) Responsibilities of monitoring service providers. To maintain
an approved monitoring service provider status, a monitoring service
provider, including electronic monitoring service providers, must
demonstrate an ability to provide or support the following monitoring
services:
(i) Certified observers or monitors. Provide observers or monitors
that have passed a NMFS-certified Observer or Monitor Training class
pursuant to paragraph (i) of this section for deployment in a fishery
when contacted and contracted by the owner, operator, or vessel manager
of a fishing vessel, unless the monitoring service provider refuses to
deploy an observer or monitor on a requesting vessel for any of the
reasons specified at paragraph (h)(5)(viii) of this section.
(ii) Support for observers, monitors, or electronic monitoring
provider staff. Ensure that each of its observers, monitors, or
electronic monitoring provider staff procures or is provided with the
following:
(A) All necessary transportation, lodging costs and support for
arrangements and logistics of travel for observers, monitors, or
electronic monitoring provider staff to and from the initial location
of deployment, to all subsequent vessel assignments, to any debriefing
locations, and for appearances in Court for monitoring-related trials
as necessary;
(B) Lodging, per diem, and any other services necessary for
observers, monitors, or electronic monitoring provider staff assigned
to a fishing vessel or to attend an appropriate NMFS training class;
(C) The required observer, monitor, or electronic monitoring
equipment, in accordance with equipment requirements, prior to any
deployment and/or prior to certification training; and
(D) Individually assigned communication equipment, in working
order, such as a mobile phone, for all necessary communication. A
monitoring service provider may alternatively compensate observers or
monitors for the use of the observer's or monitor's personal mobile
phone, or other device, for communications made in support of, or
necessary for, the observer's or monitor's duties.
(iii) Deployment logistics. (A) Assign an available observer or
monitor to a vessel upon request. For service providers contracted to
meet the requirements of the NE multispecies monitoring program in
paragraph (l) of this section, assign available at-sea monitors,
electronic monitoring provider staff, and other approved at-sea
monitoring mechanisms fairly and equitably in a manner that represents
fishing activities within each sector throughout the fishing year
without regard to any sector manager or vessel representative
preference.
(B) Enable an owner, operator, or manager of a vessel to secure
monitoring coverage or electronic monitoring technical support when
requested, 24 hours per day, 7 days per week via a telephone or other
notification system that is monitored a minimum of four times daily to
ensure rapid response to industry requests.
(iv) Observer deployment limitations. (A) A candidate observer's
first several deployments and the resulting data shall be immediately
edited and approved after each trip by NMFS prior to any further
deployments by that observer. If data quality is considered acceptable,
the observer would be certified.
(B) For the purpose of coverage to meet SBRM requirements, unless
alternative arrangements are approved by NMFS, a monitoring service
provider must not deploy any observer on the same vessel for more than
two consecutive multi-day trips, and not more than twice in any given
month for multi-day deployments.
(C) For the purpose of coverage to meet IFM requirements, a
monitoring service provider may deploy any observer or monitor on the
same vessel for more than two consecutive multi-day trips and more than
twice in any given month for multi-day deployments.
* * * * *
(vi) Observer and monitor training requirements. Ensure all
observers and monitors attend and complete a NMFS-certified Observer or
Monitor Training class. Requests for training must be submitted to NMFS
45 calendar days in advance of the requested training. The following
information must be submitted to NMFS at least 15 business days prior
to the beginning of the proposed training: A list of observer or
monitor candidates; candidate resumes, cover letters and academic
transcripts; and a statement signed by the candidate, under penalty of
perjury, that discloses the candidate's criminal convictions, if any. A
medical report certified by a physician for each candidate is required
7 business days prior to the first day of training. CPR/First Aid
certificates and a final list of training candidates with candidate
contact information (email, phone, number, mailing address and
emergency contact information) are due 7 business days prior to the
first day of training. NMFS may reject a candidate for training if the
candidate does not meet the minimum qualification requirements as
outlined by NMFS minimum eligibility standards for observers or
monitors as described on the National Observer Program website: https://www.fisheries.noaa.gov/topic/fishery-observers#become-an-observer.
(vii) Reports and Requirements. (A) Deployment reports.
(1) Report to NMFS when, where, to whom, and to what vessel an
observer or monitor has been deployed, as soon as practicable, and
according to requirements outlined by NMFS. The deployment report must
be available and accessible to NMFS electronically 24 hours a day, 7
days a week.
(2) Ensure that the raw (unedited) data collected by the observer
or monitor is provided to NMFS at the specified time per program.
Electronic data submission protocols will be outlined in training and
may include accessing government websites via personal computers/
devices or submitting data through government issued electronics.
(B) Safety refusals. Report to NMFS any trip or landing that has
been refused due to safety issues (e.g., failure to hold a valid USCG
Commercial Fishing Vessel Safety Examination Decal or to meet the
safety requirements of the observer's or monitor's safety checklist)
within 12 hours of the refusal.
(C) Biological samples. Ensure that biological samples, including
whole marine mammals, sea turtles, sea birds, and fin clips or other
DNA samples, are stored/handled properly and transported to NMFS within
5 days of landing. If transport to NMFS Observer Training Facility is
not immediately available then whole animals requiring freezing shall
be received by the nearest NMFS freezer facility within 24 hours of
vessel landing.
(D) Debriefing. Ensure that the observer, monitor, or electronic
[[Page 11027]]
monitoring provider staff remains available to NMFS, either in-person
or via phone, at NMFS' discretion, including NMFS Office of Law
Enforcement, for debriefing for at least 2 weeks following any
monitored trip/offload or electronic monitoring trip report submission.
If requested by NMFS, an observer or monitor that is at sea during the
2-week period must contact NMFS upon his or her return. Monitoring
service providers must pay for travel and land hours for any requested
debriefings.
(E) Availability report. The monitoring service provider must
report to NMFS any inability to respond to an industry request for
observer or monitor coverage due to the lack of available observers or
monitors as soon as practicable. Availability report must be available
and accessible to NMFS electronically 24 hours a day, 7 days a week.
(F) Incident reports. Report possible observer, monitor, or
electronic monitoring provider staff harassment, discrimination,
concerns about vessel safety, or marine casualty; concerns with
possible electronic monitoring system tampering, data loss, or catch
handling protocols; or observer or monitor illness or injury; or other
events as specified by the Regional Administrator; and any information,
allegations, or reports regarding observer, monitor, or electronic
monitoring provider staff conflict of interest or breach of the
standards of behavior, to NMFS within 12 hours of the event or within
12 hours of learning of the event.
(G) Status report. (1) Provide NMFS with an updated list of contact
information for all observers or monitors that includes the
identification number, name, mailing address, email address, phone
numbers, homeports or fisheries/trip types assigned, and must include
whether or not the observer or monitor is ``in service,'' indicating
when the observer or monitor has requested leave and/or is not
currently working for an industry-funded program.
(2) Place any Federally contracted observer not actively deployed
on a vessel for 30 days on Leave of Absence (LOA) status (or as
specified by NMFS) according to most recent Information Technology
Security Guidelines.
(3) Ensure Federally contracted observers on LOA for 90 days or
more conduct an exit interview with NMFS and return any NMFS issued
gear and Common Access Card (CAC), unless alternative arrangements are
approved by NMFS. NMFS requires 2-week advance notification when a
Federally contracted observer is leaving the program so that an exit
interview may be arranged and gear returned.
(H) Vessel contract. Submit to NMFS, if requested, a copy of each
type of signed and valid contract (including all attachments,
appendices, addendums, and exhibits incorporated into the contract)
between the monitoring service provider and those entities requiring
monitoring services.
(I) Observer, monitor, or video reviewer contract. Submit to NMFS,
if requested, a copy of each type of signed and valid contract
(including all attachments, appendices, addendums, and exhibits
incorporated into the contract) between the monitoring service provider
and specific observers, monitors, or video reviewers.
(J) Additional information. Submit to NMFS, if requested, copies of
any information developed and/or used by the monitoring service
provider and distributed to vessels, observers, monitors, or electronic
monitoring provider staff such as informational pamphlets, payment
notification, daily rate of monitoring or review services, description
of observer or monitor duties, etc.
(K) Discard estimates. Estimate discards for each trip and provide
such information to the sector manager and NMFS when providing
monitoring services to meet catch estimation and/or at-sea or
electronic monitoring service requirements in paragraph (l) of this
section.
(L) Data system. If contracted to meet the groundfish sector
monitoring program in paragraph (l) of this section, maintain an
electronic monitoring system to record, retain, and distribute to NMFS
upon request for a minimum of 12 months after receiving notice from
NMFS that catch data are finalized for the fishing year, the following
information:
(1) The number of at-sea monitor deployments and other approved
monitoring equipment deployments or video reviews, including any
refusal to provide service when requested and reasons for such
refusals;
(2) Incident/non-compliance reports (e.g., failure to offload
catch);
(3) Vessel hail reports and landings records;
(4) Electronic monitoring data and reports; and
(5) A means to protect the confidentiality and privacy of data
submitted by vessels, as required by the Magnuson-Stevens Act.
(M) Data retention. Ensure that electronic monitoring data and
reports are retained for a minimum of 12 months after catch data are
finalized for the fishing year. NMFS will notify monitoring service
providers of the catch data finalization date each year. The electronic
monitoring service provider must provide NMFS access to electronic
monitoring data or reports upon request.
(N) Software requirements. Provide NMFS with all software necessary
for accessing, viewing, and interpreting the data generated by the
electronic monitoring system, including submitting the agency's
secondary review data to the application programming interface and
maintenance releases to correct errors in the software or enhance
software functionality. The software must:
(1) Support a ``dual user'' system that allows NMFS to complete and
submit secondary reviews to the application programming interface.
(2) Allow for the export or download of electronic monitoring data
in order for the agency to make a copy if necessary.
(O) Software training. Provide software training for NMFS staff.
(P) Facilitation. Provide the following to NMFS upon request:
(1) Assistance in electronic monitoring system operations,
diagnosing/resolving technical issues, and recovering lost or corrupted
data;
(2) Responses to inquiries related to data summaries, analyses,
reports, and operational issues;
(3) Access to video reviewers for debriefing sessions;
(Q) Litigation support. Provide technical and expert information
substantiating electronic monitoring system data, testing procedures,
error rates, peer review or other issues raised in litigation,
including but not limited to, a brief summary of the litigation and any
court findings on the reliability of the technology.
* * * * *
(7) Removal of monitoring service provider from the list of
approved service providers. A monitoring service provider that fails to
meet the requirements, conditions, and responsibilities specified in
paragraphs (h)(5) and (6) of this section shall be notified by NMFS, in
writing, that it is subject to removal from the list of approved
monitoring service providers. Such notification shall specify the
reasons for the pending removal. A monitoring service provider that has
received notification that it is subject to removal from the list of
approved monitoring service providers may submit written information to
rebut the reasons for removal from the list. Such rebuttal must be
submitted within 30 days of notification received by the
[[Page 11028]]
monitoring service provider that the monitoring service provider is
subject to removal and must be accompanied by written evidence
rebutting the basis for removal. NMFS shall review information
rebutting the pending removal and shall notify the monitoring service
provider within 15 days of receipt of the rebuttal whether or not the
removal is warranted. If no response to a pending removal is received
by NMFS, the monitoring service provider shall be automatically removed
from the list of approved monitoring service providers. The decision to
remove the monitoring service provider from the list, either after
reviewing a rebuttal, or if no rebuttal is submitted, shall be the
final decision of NMFS and the Department of Commerce. Removal from the
list of approved monitoring service providers does not necessarily
prevent such monitoring service provider from obtaining an approval in
the future if a new application is submitted that demonstrates that the
reasons for removal are remedied. Observers and monitors under contract
with observer monitoring service provider that has been removed from
the list of approved service providers must complete their assigned
duties for any fishing trips on which the observers or monitors are
deployed at the time the monitoring service provider is removed from
the list of approved monitoring service providers. A monitoring service
provider removed from the list of approved monitoring service providers
is responsible for providing NMFS with the information required in
paragraph (h)(5)(vii) of this section following completion of the trip.
NMFS may consider, but is not limited to, the following in determining
if a monitoring service provider may remain on the list of approved
monitoring service providers:
(i) Failure to meet the requirements, conditions, and
responsibilities of monitoring service providers specified in
paragraphs (h)(5) and (6) of this section;
(ii) Evidence of conflict of interest as defined under paragraph
(h)(6) of this section;
(iii) Evidence of criminal convictions related to:
(A) Embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, or receiving stolen
property; or
(B) The commission of any other crimes of dishonesty, as defined by
state law or Federal law, that would seriously and directly affect the
fitness of an applicant in providing monitoring services under this
section; and
(iv) Unsatisfactory performance ratings on any Federal contracts
held by the applicant; and
(v) Evidence of any history of decertification as either an
observer, monitor, or monitoring service provider.
(i) Observer, monitor, or video reviewer certification. (1)
Requirements. To be certified as an observer, or monitor, or video
reviewer, a monitoring service provider employee or contractor must
meet the criteria in paragraphs (i)(1) through (3) of this section for
observers, or paragraphs (i)(1), (2), and (4) of this section for
monitors, and paragraphs (i)(1), (2), and (5) of this section for video
reviewers, respectively. In addition, observers must meet NMFS National
Minimum Eligibility Standards for observers specified at the National
Observer Program website: https://www.fisheries.noaa.gov/topic/fishery-observers#become-an-observer.
(2) Training. In order to provide observer or monitor services and
be deployed on any fishing vessel, a candidate observer or monitor must
have passed an appropriate NMFS-certified Observer or Monitor Training
course and must adhere to all NMFS program standards and policies. In
order to perform electronic monitoring video review, a candidate video
reviewer must have passed an appropriate NMFS-certified Video Review
Training course and must adhere to all NMFS program standards and
policies. NMFS will immediately notify any candidate that fails
training and the monitoring service provider. Observer or monitor
training may include an observer training trip, as part of the
observer's training, aboard a fishing vessel with a trainer. Contact
NMFS for the required number of program specific observer and monitor
training certification trips for full certification following training.
(3) * * *
(i) Have a valid NMFS fisheries observer certification pursuant to
paragraph (i)(1) of this section;
* * * * *
(4) * * *
(ii) Have a valid NMFS certification pursuant to paragraph (i)(1)
of this section;
* * * * *
(5) Video reviewer requirements. All video reviewers must:
(i) Hold a high school diploma or legal equivalent;
(ii) Have a valid NMFS certification pursuant to paragraph (i)(1)
of this section; and
(iii) Accurately record sampling data, write complete reports, and
report accurately any observations relevant to conservation of marine
resources or their environment.
(6) Probation and decertification. NMFS may review observer,
monitor, and video reviewer certifications and issue observer, monitor,
and video reviewer certification probations and/or decertifications as
described in NMFS policy.
(7) Issuance of decertification. Upon determination that
decertification is warranted under paragraph (i)(6) of this section,
NMFS shall issue a written decision to decertify the observer, monitor,
or video reviewer to the observer, monitor, or video reviewer and
approved monitoring service provider via certified mail at the
observer's, monitor's, or video reviewer's most current address
provided to NMFS. The decision shall identify whether a certification
is revoked and shall identify the specific reasons for the action
taken. Decertification is effective immediately as of the date of
issuance, unless the decertification official notes a compelling reason
for maintaining certification for a specified period and under
specified conditions. Decertification is the final decision of NMFS and
the Department of Commerce and may not be appealed.
(j) Coverage. In the event that a vessel is requested by the
Regional Administrator to carry a fisheries observer pursuant to
paragraph (a) of this section and is also selected to carry an at-sea
monitor as part of an approved sector at-sea monitoring program
specified in paragraph (l) of this section for the same trip, only the
fisheries observer is required to go on that particular trip. Vessels
using electronic monitoring to satisfy the groundfish sector monitoring
program requirement must comply with their vessel monitoring plan on
all trips, including a trip that has been selected to carry, or a trip
that carries, a fisheries observer.
(k) * * *
(4) * * *
(i) An owner of a scallop vessel required to carry an observer
under paragraph (k)(3) of this section must arrange for carrying an
observer that has passed a NMFS-certified Observer Training class
certified by NMFS from an observer service provider approved by NMFS
under paragraph (h) of this section. The owner, operator, or vessel
manager of a vessel selected to carry an observer must contact the
observer service provider and must provide at least 48-hr notice in
advance of the fishing trip for the provider to arrange for observer
deployment for the specified trip. The observer service provider will
notify the vessel owner,
[[Page 11029]]
operator, or manager within 18 hr whether they have an available
observer. A list of approved observer service providers shall be posted
on the NMFS/FSB website: https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs. The observer
service provider may take up to 48 hr to arrange for observer
deployment for the specified scallop trip.
(ii) An owner, operator, or vessel manager of a vessel that cannot
procure an observer within 48 hr of the advance notification to the
provider due to the unavailability of an observer may request a waiver
from NMFS from the requirement for observer coverage for that trip, but
only if the owner, operator, or vessel manager has contacted all of the
available observer service providers to secure observer coverage and no
observer is available. NMFS shall issue such a waiver within 24 hr, if
the conditions of this paragraph (k)(4)(ii) are met. A vessel may not
begin the trip without being issued a waiver.
* * * * *
(l) * * *
(1) Groundfish sector monitoring program goals and objectives. The
primary goal of the at-sea/electronic monitoring program is to verify
area fished, as well as catch and discards by species and gear type, in
the most cost-effective means practicable. The following goals and
objectives of groundfish monitoring programs are equally-weighted
secondary goals by which monitoring programs established for the NE
multispecies are to be designed to be consistent with:
(i) Improve documentation of catch:
(A) Determine total catch and effort, for each sector and common
pool, of target or regulated species and ocean pout; and
(B) Achieve coverage level sufficient to minimize effects of
potential monitoring bias to the extent possible while maintaining as
much flexibility as possible to enhance fleet viability.
(ii) Reduce the cost of monitoring:
(A) Streamline data management and eliminate redundancy;
(B) Explore options for cost-sharing and deferment of cost to
industry; and
(C) Recognize opportunity costs of insufficient monitoring.
(iii) Incentivize reducing discards:
(A) Determine discard rate by smallest possible strata while
maintaining cost-effectiveness; and
(B) Collect information by gear type to accurately calculate
discard rates.
(iv) Provide additional data streams for stock assessments:
(A) Reduce management and/or biological uncertainty; and
(B) Perform biological sampling if it may be used to enhance
accuracy of mortality or recruitment calculations.
(v) Enhance safety of monitoring program.
(vi) Perform periodic review of monitoring program for
effectiveness.
(2) Sector monitoring programs. A sector must develop and implement
an at-sea and/or electronic monitoring program that may be approved by
NMFS as both sufficient to monitor catch, discards, and use of sector
ACE; and as consistent with the sector monitoring program goals and
objectives. The details of any at-sea or electronic monitoring program
must be specified in the sector's operations plan, pursuant to
paragraph Sec. 648.87(b)(2)(xi), and must meet the operational
standards specified in paragraph (l)(10) of this section. Maximized
retention electronic monitoring and audit electronic monitoring models,
meeting the requirements in paragraph (l)(10) of this section, may be
used in place of at-sea monitoring to ensure a sector's monitoring
programs may be approved. Other types of electronic monitoring may be
used in place of at-sea monitors if the technology is deemed sufficient
by NMFS, in a manner consistent with the Administrative Procedure Act,
for a specific trip type based on gear type and area fished. The
Regional Administrator will approve or disapprove at-sea/electronic
programs, including vessel monitoring plans, as part of a sector's
operations plans in a manner consistent with the Administrative
Procedure Act.
(3) Pre-trip notification. For the purpose of selecting vessels for
observer or at-sea monitor deployment, as instructed by the Regional
Administrator, the owner, operator, or manager of a vessel (i.e.,
vessel manager or sector manager) issued a limited access NE
multispecies permit that is fishing under a NE multispecies DAS or on a
sector trip, as defined in this part, must provide advance notice to
NMFS at least 48 hr prior to departing port on any trip declared into
the NE multispecies fishery pursuant to Sec. 648.10 or Sec. 648.85 of
the following: The vessel name, permit number, and sector to which the
vessel belongs, if applicable; contact name and telephone number for
coordination of observer or at-sea monitor deployment; date, time, and
port of departure; and the vessel's trip plan, including area to be
fished, whether a monkfish DAS will be used, and gear type to be used,
unless otherwise specified in this paragraph (l) or notified by the
Regional Administrator. For trips lasting 48 hr or less in duration
from the time the vessel leaves port to begin a fishing trip until the
time the vessel returns to port upon the completion of the fishing
trip, the vessel owner, operator, or manager may make a weekly
notification rather than trip-by-trip calls. For weekly pre-trip
notification, a vessel must notify NMFS by 0001 hr of the Friday
preceding the week (Sunday through Saturday) that it intends to
complete at least one NE multispecies DAS or sector trip during the
following week and provide the vessel's trip-plans for that week,
including each trip's date, time, port of departure, area to be fished,
whether a monkfish DAS will be used, and gear type to be used. Pre-trip
notification calls must be made no more than 10 days in advance of each
fishing trip. The vessel owner, operator, or manager must notify NMFS
of any trip plan changes at least 24 hr prior to vessel departure from
port. A vessel may not begin the trip without being issued either an
observer notification, an at-sea monitor notification, or a waiver by
NMFS.
(4) Vessel selection for observer or at-sea monitor coverage. NMFS
shall notify the vessel owner, operator, or manager whether the vessel
must carry an observer or at-sea monitor for the specified trip within
24 hr of the vessel owner's, operator's or manager's pre-trip
notification of the prospective trip, as specified in paragraph (l)(2)
of this section. All pre-trip notifications shall be issued a unique
confirmation number. A vessel may not fish on a NE multispecies DAS or
sector trip with an observer waiver confirmation number that does not
match the vessel's trip plan that was called in to NMFS. Confirmation
numbers and the vessel's observer or observer waiver status for pre-
trip notification calls remain valid for 48 hr from the intended sail
date. After a trip begins, that trip's confirmation number and observer
or observer waiver status remains valid until the trip ends. If a trip
is interrupted and the vessel returns to port due to bad weather or
other circumstance beyond the operator's control, the vessel's observer
or observer waiver status and confirmation number for the interrupted
trip remains the same if the vessel departs within 48 hr from the
vessel's return to port. If the layover time is greater than 48 hr, the
vessel owner, operator, or manager must provide a new pre-trip
notification. If an observer or at-sea monitor is assigned to a
particular trip, a vessel may not leave port without the at-sea monitor
on board, unless NMFS issues a waiver. If a vessel is using electronic
monitoring to comply with the monitoring requirements of this part, it
may not leave port without an operational
[[Page 11030]]
electronic monitoring system on board, unless NMFS issues a waiver, or
assigned other at-sea monitoring coverage.
(5) Sector monitoring coverage levels. Coverage levels for an at-
sea or electronic monitoring program, including video review
requirements, shall be specified by NMFS, pursuant to paragraph
(l)(5)(i) of this section.
(i) At-sea monitoring coverage target. The at-sea monitoring
coverage target for the sector monitoring program will be set as a
percentage of all eligible sector trips based on available federal
funding for NMFS and industry cost responsibilities as defined in
paragraph (g)(3) of this section. Sectors are responsible for industry
costs for at-sea monitoring coverage up to the coverage target for all
trips not observed by a Northeast Fishery Observer Program observer. In
fishing years 2022, 2023, 2024, and 2025, the ASM coverage target will
be set at the highest level that available federal funding for NMFS and
industry cost responsibilities supports, up to 100 percent of trips.
Beginning in fishing year 2026, the target coverage will be set at 40
percent of trips, unless replaced by the Council after a review, as
detailed in paragraph (l)(5)(v) of this section. In the absence of
available federal funds sufficient to fund both NMFS costs and industry
costs associated with a coverage target of at least 40 percent of all
sector trips, sectors must pay the industry's costs for coverage
necessary to achieve a 40-percent coverage target. As an example, if,
after paying NMFS costs, available federal funding is sufficient only
to fund industry costs for 15-percent coverage, sectors must pay the
industry costs for the remaining 25-percent coverage to achieve a 40-
percent coverage target. Any coverage provided by the Northeast
Fisheries Observer Program through deployment of an observer would be
deducted from the industry's cost responsibility. To ensure coverage is
both sufficient to monitor sector catch, discards, and sector ACE; and
consistent with sector monitoring goals and objectives, at-sea
monitoring coverage may be higher than the at-sea monitoring coverage
target, up to 100 percent of all eligible trips, if available federal
funding is sufficient for NMFS and industry cost responsibilities,
respectively. NMFS will announce the coverage target at least 3 weeks
before the annual sector enrollment deadline set by NMFS, if federal
funding information is available.
(ii) Gear-based exclusion from the at-sea monitoring program. A
sector vessel that notifies NMFS of its intent to exclusively fish
using gillnets with a mesh size of 10-inch (25.4-cm) or greater in
either the Inshore GB Stock Area, as defined at Sec. 648.10(k)(3)(ii),
and/or the SNE Broad Stock Area, as defined at Sec. 648.10(k)(3)(iv),
is not subject to the coverage level for at-sea monitoring specified in
Sec. 648.11(l)(5)(i) provided that the trip is limited to the Inshore
GB and/or SNE Broad Stock Areas and that the vessel only uses gillnets
with a mesh size of 10-inches (25.4-cm) or greater. When on such a
trip, other gear may be on board provided that it is stowed and not
available for immediate use as defined in Sec. 648.2. A sector trip
fishing with 10-inch (25.4-cm) mesh or larger gillnets will still be
subject to at-sea monitoring coverage if the trip declares its intent
to fish in any part of the trip in the GOM Stock area, as defined at
Sec. 648.10(k)(3)(i), or the Offshore GB Stock Area, as defined at
Sec. 648.10(k)(3)(iii). Vessels using electronic monitoring to satisfy
the sector monitoring requirement must have their system turned on and
comply with their vessel monitoring plan on all trips, including a trip
that is limited to the Inshore GB and/or SNE Broad Stock Areas where
the vessel only uses gillnets with a mesh size of 10-inches (25.4-cm)
or greater.
(iii) Geographic exclusion from the at-sea monitoring program.
Vessels fishing exclusively west of 71 degrees 30 minutes west
longitude on a sector trip are excluded from the requirement to carry
an at-sea monitor. Vessels on a trip excluded from the at-sea
monitoring requirement under this provision must comply with the VMS
declaration requirements at Sec. 648.10(g)(3), and the transiting
requirements at Sec. 648.81(e) when east of 71 degrees 30 minutes.
Vessels using electronic monitoring to satisfy the sector monitoring
requirement must have their system turned on and comply with their
vessel monitoring plan on all trips, including trips fishing
exclusively west of 71 degrees 30 minutes west longitude.
(iv) Waivers. In addition to the safety waivers in Sec. 648.11(c),
NMFS may issue a waiver for a sector trip exempting the vessel from the
sector monitoring program coverage requirements for the following
reasons.
(A) Funding waivers. NMFS will issue a waiver for a sector trip
exempting the vessel from the sector monitoring program coverage
requirements if coverage is unavailable due to insufficient funding for
NMFS cost responsibilities as defined in paragraph (g)(3) of this
section.
(B) Logistics waivers. NMFS may issue a waiver for a sector trip
exempting the vessel from the sector monitoring program coverage
requirements for logistical and technical reasons, including, but not
limited to: No monitor is available; the assigned observer is unable to
make the trip; the trip will have no fishing effort; and electronic
monitoring system technical problems.
(C) Set-only trip waivers. Vessels on a set-only trip, as defined
at Sec. 648.2, are excluded from the groundfish sector monitoring
program requirements in Sec. 648.11(l). If a vessel is using
electronic monitoring to comply with the monitoring requirements of
this part, that vessel may turn off its cameras on a set-only trip.
(v) Review of exclusions from the at-sea monitoring program. A
Council review of the exclusions from the at-sea monitoring program in
Sec. 648.11(l)(5)(ii) and (iii) will evaluate whether the exclusions
continue to meet the intent of the Council to exclude trips with little
catch of regulated species and ocean pout. The review will be conducted
using complete data from 2 fishing years once the data are available
(fishing years 2022 and 2023) and every 3 years after the initial
review.
(6) Groundfish sector monitoring program review. A Council review
of the NE multispecies monitoring program will evaluate whether the
monitoring program is meeting the goal of improved accuracy of catch
data, while maximizing value and minimizing costs of the program, using
complete data from 2 fishing years once the data are available (fishing
years 2022 and 2023) and periodically after the initial review. The
review process should be flexible and general, and include establishing
metrics and indicators of how well the monitoring program improved
accuracy while maximizing value and minimizing costs.
(7) Hail reports. For the purposes of the monitoring requirements
specified in paragraph (l)(2) of this section, sector vessels must
submit all hail reports for a sector trip in which the NE multispecies
catch applies against the ACE allocated to a sector, as specified in
this part, to their respective contracted monitoring service providers.
The mechanism and timing of the transmission of such hail reports must
be consistent with instructions provided by the Regional Administrator
for any at-sea or electronic monitoring program required by paragraph
(l)(2) of this section, or specified in the annual sector operations
plan, consistent with Sec. 648.87(b)(5).
(8) Notification of monitoring service provider change. If, for any
reason, a sector decides to change approved service providers used to
provide at-sea or electronic monitoring services
[[Page 11031]]
required in paragraph (l)(2) of this section, the sector manager must
first inform NMFS in writing in advance of the effective date of the
change in approved monitoring service providers in conjunction with the
submission of the next weekly sector catch report specified in Sec.
648.87(b)(1)(v)(B). A sector may use more than one monitoring service
provider at any time, provided any monitoring service provider employed
by or contracted with a sector meets the standards specified in
paragraph (b)(4) of this section.
(9) Discards. A sector vessel may not discard any legal-sized
regulated species or ocean pout allocated to sectors pursuant to Sec.
648.87(b)(1)(i), unless otherwise required pursuant to Sec. 648.86(l).
Discards of undersized regulated species or ocean pout by a sector
vessel must be reported to NMFS consistent with the reporting
requirements specified in Sec. 648.87(b)(1)(v). Discards shall not be
included in the information used to calculate a vessel's PSC, as
described in Sec. 648.87(b)(1)(i)(E), but shall be counted against a
sector's ACE for each regulated species allocated to a sector.
(10) Sector monitoring program operational standards. In addition
to the monitoring service provider standards specified in paragraph
(h)(5) of this section, any at-sea/electronic monitoring program
developed as part of a sector's yearly operations plan pursuant to
paragraph (l)(2) of this section must meet the following operational
standards to be approved by NMFS:
(i) Vessel requirements. (A) Electronic monitoring system
requirements. A vessel owner or operator using electronic monitoring to
meet sector monitoring requirements must do the following:
(1) Ensure that the electronic monitoring system is fully
operational for every sector trip, which means it is operating,
recording, and retaining the recording for the duration of every trip.
A vessel may not fish without a fully operational electronic monitoring
system, unless issued a waiver by NMFS for that trip;
(2) Conduct a system check of the electronic monitoring system
prior to departing on a fishing trip. An electronic monitoring system
check must show that the electronic monitoring system is fully
operational and there is sufficient video storage capacity to retain
the recording of the entire fishing trip;
(3) Maintain clear and unobstructed camera views at all times.
Ensure lighting is sufficient in all circumstances to illuminate catch
so that catch and discards are visible and may be identified and
quantified as required; and
(4) Ensure no person tampers with, disconnects, or destroys any
part of the electronic monitoring system, associated equipment, or
recorded data.
(B) Vessel monitoring plan requirements for electronic monitoring
vessels. A vessel must have a NMFS-approved vessel monitoring plan to
use electronic monitoring to meet sector monitoring requirements. The
vessel monitoring plan describes how an electronic monitoring system is
configured on a particular vessel and how fishing operations must be
conducted to effectively monitor catch.
(1) The vessel monitoring plan must be onboard the vessel at all
times.
(2) The vessel owner, operator and crew must comply with all catch
handling protocols and other requirements described in the vessel
monitoring plan, including sorting catch and processing any discards
within view of the cameras and consistent with the vessel monitoring
plan.
(3) Modifications to any vessel monitoring plan must be approved by
NMFS prior to such vessel fishing under the conditions of the new
vessel monitoring plan.
(4) A vessel owner or operator using electronic monitoring to meet
sector monitoring requirements must submit all electronic monitoring
data to the monitoring service provider in accordance with the
electronic monitoring program requirements in Sec. 648.11, or as
otherwise instructed by the Regional Administrator.
(5) A vessel owner or operator must make the electronic monitoring
system, associated equipment, electronic monitoring data, or vessel
monitoring plan available to NMFS for inspection, upon request.
(6) A vessel owner or operator using electronic monitoring to meet
sector monitoring requirements must turn on its camera for 100 percent
of sector trips.
(7) A vessel owner or operator using electronic monitoring to meet
sector monitoring requirements must comply with the requirements in
Sec. 648.11(l)(10)(ii)(B) or the Regional Administrator may withdraw
approval for the vessel to use electronic monitoring.
(8) The Regional Administrator may revise vessel monitoring plan
requirements and approval standards consistent with the Administrative
Procedure Act. Any revisions will be published on the agency's website.
(C) Safety hazards. The operator of a sector vessel must detail and
identify any safety hazards to any at-sea monitor assigned pursuant to
paragraph (b)(5)(iii)(B)(1) of this section prior to leaving port. A
vessel may not begin a trip if it has failed a review of safety issues
pursuant to paragraph (b)(5)(iv)(B) of this section, until the
identified safety deficiency has been resolved, pursuant to Sec.
600.746(i).
(D) Dockside monitoring. Vessels using maximized retention
electronic monitoring must participate in either an independent third
party dockside monitoring program approved by NMFS, or the dockside
monitoring program operated by NMFS, as instructed by NMFS.
(E) Retention of fish. Vessels using maximized retention electronic
monitoring must retain all fish from each allocated regulated species,
regardless of length.
(ii) Sector monitoring plan monitoring service provider
requirements. In addition to the monitoring service provider standards
in paragraph (h) of this section, sector monitoring plans must include
the following operational requirements for any monitoring provider
contracted to meet sector monitoring program requirements in this
paragraph (l):
(A) At-sea monitoring report. Within 48 hours of the completion of
a trip, or as otherwise instructed by the Regional Administrator,
electronic submission to NMFS and the sector a report detailing the
area fished and the amount of each species kept and discarded. A
standard format for submission shall be specified by NMFS and
distributed to all monitoring service providers and sectors. NMFS will
accept only monitoring data that passes automated NMFS data quality
checks.
(B) Electronic monitoring report. A report detailing area fished
and the amount of each species discarded must be submitted
electronically in a standard acceptable form to the appropriate sector
and NMFS within 10 business days of a trip being selected for video
review, or as otherwise instructed by the Regional Administrator. The
format for submission shall be specified by NMFS and distributed to all
monitoring service providers and sectors. NMFS will accept only
monitoring data that passes automated NMFS data quality checks.
(C) Vessel feedback report. A report must be submitted to the
vessel owner following a trip with detailed feedback on the vessel
operator's and crew's catch handling, camera maintenance, and vessel
monitoring plan compliance.
[[Page 11032]]
A copy must be submitted to NMFS upon request.
(D) Safety hazards. Completion by an at-sea monitor of a pre-trip
vessel safety checklist provided by NMFS before an at-sea monitor can
leave port onboard a vessel on a sector trip. If the vessel fails a
review of safety issues pursuant to this paragraph (l)(10)(ii)(E), an
at-sea monitor cannot be deployed on that vessel for that trip.
(E) Gear. Provision of all equipment specified by the Northeast
Fisheries Science Center to each at-sea monitor before the at-sea
monitor may be deployed on a vessel. A list of such equipment is
available from the Northeast Fisheries Science Center upon request.
This gear shall be inspected by NMFS upon the completion of training
required pursuant to paragraph (i)(2) of this section.
(F) Adjustment to service provider requirements and approval
standards. The Regional Administrator may revise monitoring service
provider requirements and approval standards consistent with the
Administrative Procedure Act.
(iii) Sector requirements. Each sector shall monitor catch by
participating sector vessels to ensure that ACEs are not exceeded
during the fishing year, as specified in this paragraph (l)(10)(iii).
The sector shall summarize trips validated by dealer reports; oversee
the use of electronic monitoring equipment and review of associated
data; maintain a database of VTR, dealer, observer, and electronic
monitoring reports; determine all species landings by stock areas;
apply discard estimates to landings; deduct catch from ACEs allocated
to sectors; and report sector catch on a weekly basis to NMFS, as
required in paragraph (b)(1)(v) of this section. Unless otherwise
specified in this paragraph (l)(10), all catches of stocks allocated to
sectors by vessels on a sector trip shall be deducted from the sector's
ACE for each regulated species stock regardless of the fishery the
vessel was participating in when the fish was caught. For the purposes
of this paragraph (l)(10), any regulated species or ocean pout caught
using gear capable of catching NE multispecies (i.e., gear not listed
as exempted gear under this part) would be deducted from a sector's ACE
if such catch contributed to the specification of PSC, as described in
Sec. 648.87(b)(1)(i)(E), and would not apply to another ACL sub-
component pursuant to Sec. 648.90(a)(4). For example, any regulated
species or ocean pout landed while fishing for or catching skates or
monkfish pursuant to the regulations for those fisheries would be
deducted from the sector's ACE for each stock because such regulated
species or ocean pout were caught while also operating under a NE
multispecies DAS. However, for example, if a sector vessel is issued a
limited access General Category Atlantic Sea Scallop permit and fishes
for scallops under the provisions specific to that permit, any
yellowtail flounder caught by the vessel on such trips would be
deducted from the appropriate non-groundfish component, such as the
other sub-component or the appropriate yellowtail flounder stock's ACL
specified for the Atlantic Sea Scallop fishery and not from the
yellowtail flounder ACE for the sector.
(iv) Dealer requirements. Federally permitted NE multispecies
dealers must allow dockside monitors access to their premises, scales,
and any fish received from vessels participating in the maximized
retention electronic monitoring program for the purpose of collecting
fish species and weights of fish received by the dealer, fish length
measurements, and the collection of age structures such as otoliths or
scales.
(A) Facilitation. Federally permitted NE multispecies dealers must
facilitate dockside monitoring for vessels participating in a maximized
retention electronic monitoring program, including, but not limited to,
the following requirements:
(1) Provide a safe sampling station, including shelter from
weather, for dockside monitors to conduct their duties and process
catch, that is equivalent to the accommodations provided to the
dealer's staff.
(2) Allow dockside monitors access to bathrooms equivalent to the
accommodations provided to the dealer's staff.
(3) Allow dockside monitors access to any facilities for washing
equipment with fresh water that are provided to the dealer's staff.
(B) Processing, sorting, labeling, and reporting. Federally
permitted NE multispecies dealers must process fish for vessels
participating in a maximized retention electronic monitoring program
consistent with and including, but not limited to, the following
requirements:
(1) Offload from vessels participating in the maximized retention
monitoring program all fish below the minimum size specified at Sec.
648.83 before other fish that meet the minimum size, sort the
undersized fish by species, and provide the dockside monitor access to
those at the safe sampling station.
(2) Sort by species all redfish, haddock, and pollock, except that
fish of the same species below the minimum size specified at Sec.
648.83 may be mixed with the same species of fish in the smallest
market category.
(3) Sort by species all unmarketable fish from other fish, when
identifiable to species.
(4) Clearly identify, mark, or label all containers with fish below
the minimum size specified in Sec. 648.83 as containing undersized
fish, the fishing vessel from which they were offloaded, and the date
of offloading.
(5) Report all fish below the minimum size specified in Sec.
648.83, and all unmarketable fish, as instructed by NMFS.
(v) Adjustment to operational standards. The at-sea/electronic
monitoring operational standards specified in paragraph (l)(10) of this
section may be revised by the Regional Administrator in a manner
consistent with the Administrative Procedure Act.
(m) * * *
(1) * * *
(i) In addition to the requirement for any vessel holding an
Atlantic herring permit to carry an observer described in paragraph (a)
of this section, vessels issued a Category A or B Herring Permit are
subject to industry-funded monitoring (IFM) requirements on declared
Atlantic herring trips, unless the vessel is carrying an observer to
fulfill Standard Bycatch Reporting Methodology requirements. An owner
of a midwater trawl vessel, required to carry an observer when fishing
in Northeast Multispecies Closed Areas at Sec. 648.202(b), may
purchase an IFM high volume fisheries (HVF) observer to access Closed
Areas on a trip-by-trip basis. General requirements for IFM programs in
New England Council FMPs are specified in paragraph (g) of this
section. Possible IFM monitoring for the Atlantic herring fishery
includes observers, at-sea monitors, and electronic monitoring and
portside samplers, as defined in Sec. 648.2.
* * * * *
(v) To provide the required IFM coverage aboard declared Atlantic
herring trips, observers and monitors must hold a high volume fisheries
certification from NMFS.
(2) * * *
(iii) * * *
(A) For IFM observer coverage aboard vessels fishing with midwater
trawl gear to access the Northeast Multispecies Closed Areas,
consistent with requirements at Sec. 648.202(b), at any point during
the trip;
* * * * *
(4) * * *
(i) An owner of an Atlantic herring vessel required to have
monitoring under paragraph (m)(3) of this section
[[Page 11033]]
must arrange for monitoring by an observer from a monitoring service
provider approved by NMFS under paragraph (h) of this section. The
owner, operator, or vessel manager of a vessel selected for monitoring
must contact a monitoring service provider prior to the beginning of
the trip and the monitoring service provider will notify the vessel
owner, operator, or manager whether monitoring is available. A list of
approved monitoring service providers shall be posted on the NMFS
website: https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs.
* * * * *
(6) Sampling requirements for observers and monitors. In addition
to the requirements at Sec. 648.11(d)(1) through (7), an owner or
operator of a vessel issued a limited access herring permit on which an
observer or monitor is embarked must provide observers or monitors:
* * * * *
(n) * * *
(2) Sampling requirements for limited access Atlantic mackerel and
longfin squid/butterfish moratorium permit holders. In addition to the
requirements in paragraphs (d)(1) through (7) of this section, an owner
or operator of a vessel issued a limited access Atlantic mackerel or
longfin squid/butterfish moratorium permit on which an observer is
embarked must provide observers:
* * * * *
0
5. Section 648.14 is amended by:
0
a. Revising paragraphs (a)(7), (e), and (i)(1)(ix)(B);
0
b. Adding paragraph (k)(2)(vii); and
0
c. Revising paragraphs (k)(3), (k)(14)(ix) through (xiii), and
(r)(2)(v).
The revisions and addition read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(7) Possess, import, export, transfer, land, or have custody or
control of any species of fish regulated pursuant to this part that do
not meet the minimum size provisions in this part, unless such species
were harvested exclusively within state waters by a vessel that does
not hold a valid permit under this part, or are species included in the
NE Multispecies Fishery Management Plan that were either harvested by a
vessel participating in the maximized retention electronic monitoring
program consistent with Sec. 648.11(l)(10)(i)(E) or harvested by a
vessel issued a valid High Seas Fishing Compliance permit that fished
exclusively in the NAFO Regulatory Area.
* * * * *
(e) Observer program. It is unlawful for any person to do any of
the following:
(1) Assault, resist, oppose, impede, harass, intimidate, or
interfere with or bar by command, impediment, threat, or coercion any
observer or monitor conducting his or her duties; any electronic
monitoring provider staff who collects data required under this part;
any authorized officer conducting any search, inspection,
investigation, or seizure in connection with enforcement of this part;
any official designee of the Regional Administrator conducting his or
her duties, including those duties authorized in Sec. Sec. 648.7(g)
and 648.11(l)(10)(v).
(2) Refuse monitoring coverage by an observer or monitor if
selected for monitoring coverage by the Regional Administrator or the
Regional Administrator's designee.
(3) Fail to provide information, notification, accommodations,
access, or reasonable assistance to either an observer, monitor, or
electronic monitoring provider staff conducting his or her duties as
specified in Sec. 648.11.
(4) Submit false or inaccurate data, statements, or reports.
* * * * *
(i) * * *
(1) * * *
(ix) * * *
(B) Fail to provide information, notification, accommodations,
access, or reasonable assistance to an observer conducting his or her
duties aboard a vessel, as specified in Sec. 648.11.
* * * * *
(k) * * *
(2) * * *
(vii) Fish under a waiver from the groundfish sector monitoring
program issued under Sec. 648.11(l)(5)(ii) or (iii) without complying
with the VMS declaration requirements at Sec. 648.10(g)(3) and the
pre-trip notification requirements at Sec. 648.11(l)(1).
(3) Dealer requirements. It is unlawful for any person to:
(i) Purchase, possess, import, export, or receive as a dealer, or
in the capacity of a dealer, regulated species or ocean pout in excess
of the possession limits specified in Sec. Sec. 648.82, 648.85,
648.86, or 648.87 applicable to a vessel issued a NE multispecies
permit, unless otherwise specified in Sec. 648.17, or unless the
regulated species or ocean pout are purchased or received from a vessel
that caught them on a sector trip and such species are exempt from such
possession limits in accordance with an approved sector operations
plan, as specified in Sec. 648.87(c).
(ii) Sell or transfer to another person for a commercial purpose,
other than solely for transport on land, any NE multispecies harvested
from the EEZ by a vessel issued a Federal NE multispecies permit,
unless the transferee has a valid NE multispecies dealer permit.
(iii) Purchase, possess, import, export, or receive as a dealer, or
in the capacity of a dealer, regulated species or ocean pout from a
vessel participating in the maximized retention electronic monitoring
program in Sec. 648.11(l) unless the offload of catch was observed by
a dockside monitor or NMFS issued a waiver from dockside monitoring for
the trip.
(iv) Assault, resist, oppose, impede, harass, intimidate, or
interfere with or bar by command, impediment, threat, or coercion any
observer or monitor conducting his or her duties or any electronic
monitoring provider staff who collects data required under this part.
(v) Impede a dockside monitors' access to their premises, scales,
and any fish received from vessels participating in the maximized
retention electronic monitoring program; fail to facilitate dockside
monitoring for vessels participating in a maximized retention
electronic monitoring program; or fail to process, sort, label, and
report fish from vessels participating in the maximized retention
monitoring program, as required in Sec. 648.11(l)(10)(iv).
* * * * *
(14) * * *
(ix) Fail to comply with the reporting requirements specified in
Sec. 648.11(l)(10)(iii) and Sec. 648.87(b)(1)(v).
(x) Leave port to begin a trip before an at-sea monitor has arrived
and boarded the vessel if assigned to carry an at-sea monitor for that
trip, or without an operational electronic monitoring system installed
on board, as specified in Sec. Sec. 648.11(l)(3) and (l)(10)(i).
(xi) Leave port to begin a trip if a vessel has failed a review of
safety issues by an at-sea monitor and has not successfully resolved
any identified safety deficiencies, as prohibited by Sec.
648.11(l)(10)(i)(C).
(xii) Fail to comply with the electronic monitoring system
requirements as specified in Sec. 648.11(l)(10)(i)(A), including, but
not limited to: Ensuring the electronic monitoring system is fully
operational; conducting a system check of the electronic monitoring
system; ensuring camera views are unobstructed and clear; and ensuring
that no person tampers with the electronic monitoring system.
(xiii) Fail to comply with the vessel monitoring plan requirements
as
[[Page 11034]]
specified in Sec. 648.11(l)(10)(i)(B), including, but not limited to:
Carrying the vessel monitoring plan onboard the vessel at all times;
complying with all catch handling protocols and other requirements in
the vessel monitoring plan; submitting electronic monitoring data as
required; and making the electronic monitoring system available to NMFS
for inspection upon request.
* * * * *
(r) * * *
(2) * * *
(v) Fish with midwater trawl gear in any Northeast Multispecies
Closed Area, as defined in Sec. 648.81(a)(3) through (5) and (c)(3)
and (4), without an observer on board, if the vessel has been issued an
Atlantic herring permit.
* * * * *
0
6. Section 648.51 is amended by revising paragraphs (c)(4) and
(e)(3)(iii) to read as follows:
Sec. 648.51 Gear and crew restrictions.
* * * * *
(c) * * *
(4) An at-sea observer is on board, as required by Sec. 648.11(k).
* * * * *
(e) * * *
(3) * * *
(iii) An at-sea observer is on board, as required by Sec.
648.11(k).
* * * * *
0
7. Section 648.80 is amended by revising paragraphs (d)(3) and
(e)(2)(ii) to read as follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
* * * * *
(d) * * *
(3) The vessel carries an observer, if requested by the Regional
Administrator;
* * * * *
(e) * * *
(2) * * *
(ii) The vessel carries an observer, if requested by the Regional
Administrator;
* * * * *
0
8. Section 648.83 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 648.83 Multispecies minimum fish sizes.
(a) * * *
(1) Minimum fish sizes for recreational vessels and charter/party
vessels that are not fishing under a NE multispecies DAS are specified
in Sec. 648.89. Except as provided in Sec. 648.11(l)(10)(i)(E) and
Sec. 648.17, all other vessels are subject to the following minimum
fish sizes, determined by total length (TL):
Minimum Fish Sizes (TL) for Commercial Vessels
------------------------------------------------------------------------
Species Size in inches
------------------------------------------------------------------------
Cod....................................... 19 (48.3 cm).
Haddock................................... 16 (40.6 cm).
Pollock................................... 19 (48.3 cm).
Witch flounder (gray sole)................ 13 (33 cm).
Yellowtail flounder....................... 12 (30.5 cm).
American plaice (dab)..................... 12 (30.5 cm).
Atlantic halibut.......................... 41 (104.1 cm).
Winter flounder (blackback)............... 12 (30.5 cm).
Redfish................................... 7 (17.8 cm).
------------------------------------------------------------------------
* * * * *
0
9. Section 648.85 is amended by revising paragraph (e)(1)(viii)(C) to
read as follows:
Sec. 648.85 Special management programs.
* * * * *
(e) * * *
(1) * * *
(viii) * * *
(C) Administration of Thresholds. (1) For the purpose of
determining a sector's monthly redfish landings threshold performance
described in paragraph (e)(1)(viii)(A)(1) of this section and the
annual redfish landings threshold described in paragraph
(e)(1)(viii)(B)(1) of this section, landings of allocated regulated
species by vessels participating in a maximized retention electronic
monitoring program consistent with Sec. 648.11(l), including landings
of allocated stocks below the minimum size at Sec. 648.83(a)(1), will
be counted as landings and not discards.
(2) For the purpose of determining a sector's monthly discards
threshold performance described in paragraph (e)(1)(viii)(A)(2) of this
section, a trip by a vessel participating in a maximized retention
electronic monitoring program consistent with Sec. 648.11(l) will be
excluded from evaluation of the monthly discard threshold.
(3) If a sector fails to meet the monthly redfish landings
threshold or the monthly discards threshold described in paragraphs
(e)(1)(viii)(A)(1) and (2) of this section for four or more months
total, or three or more consecutive months, in a fishing year, the
Regional Administrator shall prohibit all vessels in that sector from
fishing under the provisions of the Redfish Exemption Program for the
remainder of the fishing year, and place the sector and its vessels in
a probationary status for one fishing year beginning the following
fishing year.
(4) If a sector fails to meet the annual redfish landings threshold
described in paragraph (e)(1)(viii)(B)(1) of this section in a fishing
year, the Regional Administrator shall place the sector and its vessels
in a probationary status for one fishing year beginning the following
fishing year.
(5) While in probationary status as described in paragraph
(e)(1)(viii)(C)(3) or (4) of this section, if the sector fails to meet
the monthly redfish landings threshold or the monthly discards
threshold described in paragraphs (e)(1)(viii)(A)(1) and (2) of this
section for four or more months total, or three or more consecutive
months, in that fishing year, the Regional Administrator shall prohibit
all vessels in that sector from fishing under the provisions of the
Redfish Exemption Program for the remainder of the fishing year and the
following fishing year.
(6) If a sector fails to meet the annual redfish landings threshold
in (e)(1)(viii)(B)(1) of this section for any fishing year during which
the sector is in a probationary status as described in paragraph
(e)(1)(viii)(C)(3) or (4) of this section, the Regional Administrator
shall prohibit all vessels in that sector from fishing under the
provisions of the Redfish Exemption Program for the following fishing
year.
(7) The Regional Administrator may determine a sector has failed to
meet required monthly or annual thresholds described in paragraphs
(e)(1)(viii)(A) and (B) of this section using available information
including, but not limited to, vessel declarations and notifications,
vessel trip reports, dealer reports, and observer and electronic
monitoring records.
(8) The Regional Administrator shall notify a sector of a failure
to meet the required monthly or annual thresholds and the sector's
vessels prohibition or probation status consistent with the provisions
in paragraphs (e)(1)(viii)(C)(1) through (7) of this section. The
Regional Administrator shall also make administrative amendments to the
approved sector operations plan and issue sector vessel letters of
authorization consistent with the provisions in paragraphs
(e)(1)(viii)(C)(1) through (7) of this section. These administrative
amendments may be made during a fishing year or during the sector
operations plan and sector contract approval process.
(9) A sector may request in writing that the Regional Administrator
review and reverse a determination made under the provisions of this
section within 30 days of the date of the Regional Administrator's
determination. Any such request must be based on information showing
the sector complied with the required thresholds, including, but not
limited to, landing, discard, observer or electronic monitoring
records. The Regional
[[Page 11035]]
Administrator will review and maintain or reverse the determination and
notify the sector of this decision in writing. Any determination
resulting from a review conducted under this provision is final and may
not be reviewed further.
* * * * *
0
10. Section 648.86 is amended by revising the introductory text and
paragraph (a)(3)(ii)(A)(1) to read as follows:
Sec. 648.86 NE Multispecies possession restrictions.
Except as provided in Sec. 648.11(l), Sec. 648.17, or elsewhere
in this part, the following possession restrictions apply:
(a) * * *
(3) * * *
(ii) * * *
(A) * * *
(1) Haddock incidental catch cap. When the Regional Administrator
has determined that the incidental catch allowance for a given haddock
stock, as specified in Sec. 648.90(a)(4)(iii)(D), has been caught, no
vessel issued an Atlantic herring permit and fishing with midwater
trawl gear in the applicable stock area, i.e., the Herring GOM Haddock
Accountability Measure (AM) Area or Herring GB Haddock AM Area, as
defined in paragraphs (a)(3)(ii)(A)(2) and (3) of this section, may
fish for, possess, or land herring in excess of 2,000 lb (907.2 kg) per
trip in or from that area, unless all herring possessed and landed by
the vessel were caught outside the applicable AM Area and the vessel's
gear is stowed and not available for immediate use as defined in Sec.
648.2 while transiting the AM Area. Upon this determination, the
haddock possession limit is reduced to 0 lb (0 kg) for a vessel issued
a Federal Atlantic herring permit and fishing with midwater trawl gear
or for a vessel issued a Category A or B Herring Permit fishing on a
declared herring trip, regardless of area fished or gear used, in the
applicable AM area, unless the vessel also possesses a NE multispecies
permit and is operating on a declared (consistent with Sec. 648.10(g))
NE multispecies trip. In making this determination, the Regional
Administrator shall use haddock catches observed by observers or
monitors by herring vessel trips using midwater trawl gear in
Management Areas 1A, 1B, and/or 3, as defined in Sec. 648.200(f)(1)
and (3), expanded to an estimate of total haddock catch for all such
trips in a given haddock stock area.
* * * * *
0
11. Section 648.87 is amended by:
0
a. Revising paragraph (b)(1) introductory text, and (b)(1)(v) through
(viii);
0
b. Removing paragraph (b)(1)(ix);
0
c. Revising paragraph (b)(2) and (3); and
0
d. Removing paragraphs (b)(4) and (5).
The revisions read as follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(1) All sectors approved under the provisions of paragraph (a) of
this section must submit the documents specified in paragraphs (a)(1),
(b)(2), and (3) of this section, comply with the conditions and
restrictions of this paragraph (b)(1), and comply with the groundfish
sector monitoring program in Sec. 648.11(l).
* * * * *
(v) Sector reporting requirements. In addition to the other
reporting/recordkeeping requirements specified in this part, a sector's
vessels must comply with the reporting requirements specified in this
paragraph (b)(1)(v).
(A) VMS declarations and trip-level catch reports. Prior to each
sector trip, a sector vessel must declare into broad stock areas in
which the vessel fishes and submit the VTR serial number associated
with that trip pursuant to Sec. 648.10(k). The sector vessel must also
submit a VMS catch report detailing regulated species and ocean pout
catch by statistical area when fishing in multiple broad stock areas on
the same trip, pursuant to Sec. 648.10(k).
(B) Weekly catch report. Each sector must submit weekly reports to
NMFS stating the remaining balance of ACE allocated to each sector
based upon regulated species and ocean pout landings and discards of
vessels participating in that sector and any compliance/enforcement
concerns. These reports must include at least the following
information, as instructed by the Regional Administrator: Week ending
date; species, stock area, gear, number of trips, reported landings
(landed pounds and live pounds), discards (live pounds), total catch
(live pounds), status of the sector's ACE (pounds remaining and percent
remaining), and whether this is a new or updated record of sector catch
for each regulated species stock allocated to that particular sector;
sector enforcement issues; and a list of vessels landing for that
reporting week. These weekly catch reports must be submitted no later
than 0700 hr on the second Monday after the reporting week, as defined
in this part. The frequency of these reports must be increased to more
than a weekly submission when the balance of remaining ACE is low, as
specified in the sector operations plan and approved by NMFS. If
requested, sectors must provide detailed trip-by-trip catch data to
NMFS for the purposes of auditing sector catch monitoring data based
upon guidance provided by the Regional Administrator.
(C) Year-end report. An approved sector must submit an annual year-
end report to NMFS and the Council, no later than 60 days after the end
of the fishing year, that summarizes the fishing activities of
participating permits/vessels, which must include at least the
following information: Catch, including landings and discards, of all
species by sector vessels; the permit number of each sector vessel that
fished for regulated species or ocean pout; the number of vessels that
fished for non-regulated species or ocean pout; the method used to
estimate discards by sector vessels; the landing port used by sector
vessels; enforcement actions; and other relevant information required
to evaluate the biological, economic, and social impacts of sectors and
their fishing operations consistent with confidentiality requirements
of applicable law.
(D) Streamlining sector reporting requirements. The reporting/
recordkeeping requirements specified in Sec. 648.11(l) and this
paragraph (b)(1)(v) may be revised by the Regional Administrator in a
manner consistent with the Administrative Procedure Act.
(vi) Interaction with other fisheries.
(A) Use of DAS. A sector vessel must comply with all measures
specified for another fishery pursuant to this part, including any
requirement to use a NE multispecies DAS. If the regulations of another
fishery require the use of a NE multispecies DAS, the DAS allocation
and accrual provisions specified in Sec. 648.82(d) and (e),
respectively, apply to each trip by a sector vessel, as applicable. For
example, if a sector vessel is also issued a limited access monkfish
Category C permit and is required to use a NE multispecies DAS
concurrent with a monkfish DAS under this part, any NE multispecies DAS
used by the sector vessel accrues, as specified in Sec.
648.82(e)(1)(ii) based upon the vessel's NE multispecies DAS allocation
calculated pursuant to Sec. 648.82(d)(1)(iv)(B).
(B) Availability of ACE. Notwithstanding the requirements in
paragraph (b)(1)(vi)(A) of this section, if a sector has not been
allocated or does not acquire sufficient ACE available to cover the
catch of a particular stock of regulated species while participating in
another fishery in which such catch would apply to the ACE allocated to
a sector, vessels participating in that sector cannot participate in
those other fisheries unless NMFS has approved a
[[Page 11036]]
sector operations plan that ensures that regulated species or ocean
pout will not be caught while participating in these other fisheries.
(vii) ACE transfers. All or a portion of a sector's ACE for any NE
multispecies stock may be transferred to another sector at any time
during the fishing year and up to 2 weeks into the following fishing
year (i.e., through May 14), unless otherwise instructed by NMFS, to
cover any overages during the previous fishing year. A sector is not
required to transfer ACE to another sector. An ACE transfer only
becomes effective upon approval by NMFS, as specified in paragraph
(b)(1)(vii)(B) of this section.
(A) Application to transfer ACE. ACE may be transferred from one
sector to another through written request to the Regional
Administrator. This request must include the name of the sectors
involved, the amount of each ACE to be transferred, the fishing year in
which the ACE transfer applies, and the amount of compensation received
for any ACE transferred, as instructed by the Regional Administrator.
(B) Approval of an ACE transfer request. NMFS shall approve/
disapprove a request to transfer ACE based upon compliance by each
sector and its participating vessels with the reporting requirements
specified in this part. The Regional Administrator shall inform both
sectors in writing whether the ACE transfer request has been approved
within 2 weeks of the receipt of the ACE transfer request.
(C) Duration of transfer. Notwithstanding ACE carried over into the
next fishing year pursuant to paragraph (b)(1)(i)(C) of this section,
ACE transferred pursuant to this paragraph (b)(1)(vii) is only valid
for the fishing year in which the transfer is approved, with the
exception of ACE transfer requests that are submitted up to 2 weeks
into the subsequent fishing year to address any potential ACE overages
from the previous fishing year, as provided in paragraph (b)(1)(iii) of
this section, unless otherwise instructed by NMFS.
(viii) Trip limits. With the exception of stocks listed in Sec.
648.86(1) and the Atlantic halibut trip limit at Sec. 648.86(c), a
sector vessel is not limited in the amount of allocated NE multispecies
stocks that can be harvested on a particular fishing trip, unless
otherwise specified in the operations plan.
(2) Operations plan and sector contract. To be approved to operate,
each sector must submit an operations plan and preliminary sector
contract to the Regional Administrator no later than September 1 prior
to the fishing year in which the sector intends to begin operations,
unless otherwise instructed by NMFS. A final roster, sector contract,
and list of Federal and state permits held by participating vessels for
each sector must be submitted by December 1 prior to the fishing year
in which the sector intends to begin operations, unless otherwise
instructed by NMFS. The operations plan may cover a 1- or 2-year
period, provided the analysis required in paragraph (b)(3) of this
section is sufficient to assess the impacts of sector operations during
the 2-year period and that sector membership, or any other parameter
that may affect sector operations during the second year of the
approved operations plan, does not differ to the point where the
impacts analyzed by the supporting NEPA document are compromised. Each
vessel and vessel operator and/or vessel owner participating in a
sector must agree to and comply with all applicable requirements and
conditions of the operations plan specified in this paragraph (b)(2)
and the letter of authorization issued pursuant to paragraph (c)(2) of
this section. It shall be unlawful to violate any such conditions and
requirements unless such conditions or restrictions are identified in
an approved operations plan as administrative only. If a proposed
sector does not comply with the requirements of this paragraph (b)(2),
NMFS may decline to propose for approval such sector operations plans,
even if the Council has approved such sector. At least the following
elements must be contained in either the final operations plan or
sector contract submitted to NMFS:
(i) A list of all parties, vessels, and vessel owners who will
participate in the sector;
(ii) A list of all Federal and state permits held by persons
participating in the sector, including an indication for each permit
whether it is enrolled and will actively fish in a sector, or will be
subject to the provisions of the common pool;
(iii) A contract signed by all sector participants indicating their
agreement to abide by the operations plan;
(iv) The name of a designated representative or agent of the sector
for service of process;
(v) If applicable, a plan for consolidation or redistribution of
ACE detailing the quantity and duration of such consolidation or
redistribution within the sector;
(vi) A list of the specific management rules the sector
participants will agree to abide by in order to avoid exceeding the
allocated ACE for each stock, including a plan of operations or
cessation of operations once the ACEs of one or more stocks are
harvested and detailed plans for enforcement of the sector rules;
(vii) A plan that defines the procedures by which members of the
sector that do not abide by the rules of the sector will be disciplined
or removed from the sector, and a procedure for notifying NMFS of such
expulsions from the sector;
(viii) If applicable, a plan of how the ACE allocated to the sector
is assigned to each vessel;
(ix) If the operations plan is inconsistent with, or outside the
scope of the NEPA analysis associated with the sector proposal/
framework adjustment as specified in paragraph (a)(1) of this section,
a supplemental NEPA analysis may be required with the operations plan;
(x) Detailed information about overage penalties or other actions
that will be taken if a sector exceeds its ACE for any stock;
(xi) Detailed plans for the monitoring and reporting of landings
and discards by sector participants, including, but not limited to,
detailed information describing the sector's at-sea/electronic
monitoring program for monitoring utilization of ACE allocated to that
sector; identification of the independent third-party service providers
employed by the sector to provide at-sea/electronic monitoring
services; the mechanism and timing of any hail reports; a list of
specific ports where participating vessels will land fish, with
specific exemptions noted for safety, weather, etc., allowed, provided
the sector provides reasonable notification to NMFS concerning a
deviation from the listed ports; and any other information about such a
program required by NMFS;
(xii) ACE thresholds that may trigger revisions to sector
operations to ensure allocated ACE is not exceeded, and details
regarding the sector's plans for notifying NMFS once the specified ACE
threshold has been reached;
(xiii) Identification of any potential redirection of effort into
other fisheries expected as a result of sector operations, and, if
necessary, proposed limitations to eliminate any adverse effects
expected from such redirection of effort;
(xiv) If applicable, description of how regulated species and ocean
pout will be avoided while participating in other fisheries that have a
bycatch of regulated species or ocean pout if the sector does not have
sufficient ACE for stocks of regulated species or ocean pout caught as
bycatch in those
[[Page 11037]]
fisheries, as specified in paragraph (b)(1)(vi)(B) of this section; and
(xv) A list of existing regulations that the sector is requesting
exemption from during the following fishing year pursuant to paragraph
(c)(2) of this section.
(3) NEPA analysis. In addition to the documents required by
paragraphs (a)(1) and (b)(2) of this section, before NMFS can approve a
sector to operate during a particular fishing year, each sector must
develop and submit to NMFS, in conjunction with the yearly operations
plan and sector contract, an appropriate NEPA analysis assessing the
impacts of forming the sector and operating under the measures
described in the sector operations plan.
* * * * *
0
12. In Sec. 648.90, revise paragraphs (a)(2)(iii) and (4)(i)(B) to
read as follows:
Sec. 648.90 NE multispecies assessment, framework procedures and
specifications, and flexible area action system.
* * * * *
(a) * * *
(2) * * *
(iii) In addition, the PDT may develop ranges of options for any of
the management measures in the FMP and the following conditions that
may be adjusted through a framework adjustment to achieve FMP goals and
objectives including, but not limited to:
(A) Revisions to DAS measures, including DAS allocations (such as
the distribution of DAS among the four categories of DAS), future uses
for Category C DAS, and DAS baselines, adjustments for steaming time,
etc.;
(B) Accumulation limits due to a permit buyout or buyback;
(C) Modifications to capacity measures, such as changes to the DAS
transfer or DAS leasing measures;
(D) Calculation of area-specific ACLs (including sub-ACLs for
specific stocks and areas (e.g., Gulf of Maine cod)), area management
boundaries, and adoption of area-specific management measures including
the delineation of inshore/offshore fishing practices, gear
restrictions, declaration time periods;
(E) Sector allocation requirements and specifications, including
the establishment of a new sector, the disapproval of an existing
sector, the allowable percent of ACL available to a sector through a
sector allocation, an optional sub-ACL specific to Handgear A permitted
vessels, management uncertainty buffers, and the calculation of PSCs;
(F) Sector administration provisions, including at-sea, electronic,
dockside, and other monitoring tools, coverage requirements and
processes, monitoring program review, or other measures; sector
reporting requirements; vessel-specific coverage levels;
(G) State-operated permit bank administrative provisions;
(H) Measures to implement the U.S./Canada Resource Sharing
Understanding, including any specified TACs (hard or target);
(I) Changes to administrative measures;
(J) Additional uses for Regular B DAS;
(K) Reporting requirements;
(L) Declaration requirements pertaining to when and what time
period a vessel must declare into or out of a fishery management area;
(M) The GOM Inshore Conservation and Management Stewardship Plan;
(N) Adjustments to the Handgear A or B permits;
(O) Gear requirements to improve selectivity, reduce bycatch, and/
or reduce impacts of the fishery on EFH;
(P) SAP modifications;
(Q) Revisions to the ABC control rule and status determination
criteria, including, but not limited to, changes in the target fishing
mortality rates, minimum biomass thresholds, numerical estimates of
parameter values, and the use of a proxy for biomass may be made either
through a biennial adjustment or framework adjustment;
(R) Changes to the SBRM, including the CV-based performance
standard, the means by which discard data are collected/obtained,
fishery stratification, the process for prioritizing observer sea-day
allocations, reports, and/or industry-funded observers or observer set
aside programs; and
(S) Any other measures currently included in the FMP.
* * * * *
(4) * * *
(i) * * *
(B) ACL recommendations. The PDT shall develop ACL recommendations
based upon ABCs recommended by the SSC and the pertinent
recommendations of the Transboundary Management Guidance Committee
(TMGC). The ACL recommendations of the PDT shall be specified based
upon total catch for each stock (including both landings and discards),
if that information is available. The PDT shall describe the steps
involved with the calculation of the recommended ACLs and uncertainties
and risks considered when developing these recommendations, including
whether different levels of uncertainties were used for different sub-
components of the fishery and whether ACLs have been exceeded in recent
years. Based upon the ABC recommendations of the SSC and the ACL
recommendations of the PDT, the Council shall adopt ACLs that are equal
to or lower than the ABC recommended by the SSC to account for
management uncertainty in the fishery. In years that the coverage
target for the groundfish sector monitoring program specified in Sec.
648.11(l) is set at 100 percent, the management uncertainty buffer will
default to zero for the sector sub-ACL for the allocated regulated
species stocks specified at Sec. 648.87(b)(1)(i)(A), but the need for
a management uncertainty buffer for the sector sub-ACL will continue to
be evaluated as part of each specification action. The PDT will
recommend an appropriate management uncertainty buffer for the sector
sub-ACLs if 100-percent monitoring coverage is determined not to be
effective, or if any additional elements evaluated when setting the
management uncertainty buffers have the potential to result in catches
that could exceed ACLs.
* * * * *
0
13. Section 648.202 is amended by revising paragraph (b)(1) to read as
follows:
Sec. 648.202 Season and area restrictions.
* * * * *
(b) * * *
(1) No vessel issued an Atlantic herring permit and fishing with
midwater trawl gear, may fish for, possess or land fish in or from the
Closed Areas, including Cashes Ledge Closure Area, Western GOM Closure
Area, Closed Area I North (February 1-April 15), and Closed Area II, as
defined in Sec. 648.81(a)(3), (4), and (5) and (c)(3) and (4),
respectively, unless it has declared first its intent to fish in the
Closed Areas as required by Sec. 648.11(m)(1), and is carrying onboard
an observer.
* * * * *
[FR Doc. 2022-03572 Filed 2-25-22; 8:45 am]
BILLING CODE 3510-22-P