[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Rules and Regulations]
[Pages 75852-75890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26350]



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Vol. 87

Friday,

No. 236

December 9, 2022

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 648





Fisheries of the Northeastern United States; Northeast Multispecies 
Fishery; Amendment 23; Final Rule

  Federal Register / Vol. 87, No. 236 / Friday, December 9, 2022 / 
Rules and Regulations  

[[Page 75852]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 221121-0246]
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: Final rule.

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SUMMARY: NMFS is implementing regulations for Amendment 23 to the 
Northeast Multispecies Fishery Management Plan, which the New England 
Fishery Management Council adopted and NMFS approved. This action 
adjusts 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 implementing 
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: This rule is effective January 9, 2023, except for amendatory 
instruction 4 (Sec.  648.11(l)(5)), which is effective December 15, 
2022.

ADDRESSES: The New England Fishery Management Council (Council) 
prepared an Environmental Impact Statement (EIS) for this action that 
describes the proposed measures in 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.
    Copies of this final rule and the small entity compliance guide 
prepared for permit holders are available from: Michael Pentony, 
Regional Administrator, Greater Atlantic Regional Fisheries Office, 55 
Great Republic Drive, Gloucester, MA 01938 and accessible via the 
internet at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/commercial-fishing/northeast-groundfish-monitoring-program.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the Greater Atlantic Regional Fisheries 
Office and to: https://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 measures the Council chose in this action 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 at its September 
2020 meeting. On April 12, 2022, we approved Amendment 23, including 
all measures adopted by the Council. In this final rule, we implement 
the approved measures in Amendment 23. The implementing regulations in 
this final rule:
     Replace the current process for calculating an annual at-
sea monitoring (ASM) coverage target with a fixed monitoring coverage 
target as a percentage of trips, dependent on 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 expected 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 acceptable biological catch (ABC) allocated to the sector catch 
share, if warranted, when the monitoring coverage target is 100 
percent; and
     Grant authority to the Greater Atlantic Regional 
Administrator to revise sector reporting requirements to streamline 
reporting for the industry.
    NMFS published a proposed rule (87 FR 11014, February 28, 2022) 
that discussed the proposed measures in detail and included proposed 
implementing regulations deemed necessary by the Council. Under the 
Magnuson-Stevens Fishery Conservation and Management Act, we approve, 
disapprove, or partially approve measures that the Council proposes, 
based on consistency with the Act and other applicable law. We review 
proposed regulations for consistency with the fishery management plan, 
plan amendment, the Magnuson-Stevens Act, other applicable law, and 
publish the proposed regulations, solicit public comment, and 
promulgate the final regulations. On April 12, 2022, we approved 
Amendment 23, including all the management measures recommended by the 
Council.

Approved Measures

ASM Coverage Target

    The regulations implemented by this final rule 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 annual determination by NMFS, with a 
fixed coverage target as a percentage of trips, dependent on Federal 
funding. To address bias, the coverage target will be 100 percent of 
trips for 4 years, provided Federal funding can support NMFS and 
industry costs. The ASM coverage target in years 1-4 may be less than 
100 percent, and will be set at the maximum level for which there are 
sufficient Federal funds to support all NMFS and industry costs. The 
ASM coverage target will 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 will be 40 percent unless replaced by a subsequent Council 
action. However, Amendment 23 also allows for increased ASM 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 will be used to first pay NMFS costs and then to 
support as much of industry costs as possible.
    Each year, NMFS will evaluate available Federal funding. NMFS will 
determine how much Federal funding is

[[Page 75853]]

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 replaces the 
former annual process for determining the ASM coverage target for the 
sector monitoring program. 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 (see Determining 
Total Monitoring Coverage at a Time Certain below).
    On November 14, 2022, NMFS announced that the ASM coverage target 
for the sector monitoring program would be 80 percent of all sector 
trips subject to the ASM program. The 80-percent coverage target is 
based on the spending plan approved by Congress for funds appropriated 
for fiscal year 2022. NMFS determined that the 80-percent ASM coverage 
target, in conjunction with EM, will continue to help address 
monitoring bias, support the collection of information and data to help 
with future determinations of appropriate ASM coverage levels, and 
monitor sector operations, to the extent practicable, to reliably 
estimate overall catch by sector vessels. NMFS will continue to 
reimburse 100 percent of sector ASM and EM costs through the Atlantic 
States Marine Fisheries Commission.

Electronic Monitoring

    This rule authorizes sector vessels to use the audit model and the 
maximized retention model of EM (MREM), in place of human ASM, to 
satisfy the sector monitoring requirement. Implementing 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 must develop monitoring plans that 
describe how the sector will use the chosen monitoring tools. EM is 
expected to provide important information for NMFS and the Council to 
consider during the first four years and to provide a suitable basis 
for sector monitoring programs, as an alternative to human ASM, to 
ensure catch accountability. A vessel using EM remains 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, or to require 
EM if necessary, to be used in place of human at-sea monitors. The 
Regional Administrator may approve or disapprove additional forms of 
EM, consistent with the Administrative Procedure Act (APA). The Council 
may also approve additional forms of EM in a future action.
    The audit model is one of the EM models included in Amendment 23. 
As discussed in the proposed rule, 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 
monitoring plan (VMP) (86 FR 16686, March 31, 2021). Additional details 
of the audit model requirements are contained in the Fishing Years 
2021-2022 Sector Operations Plan, Contract, and Environmental 
Assessment Requirements guide (https://bit.ly/3pdau1L). In this final 
rule, we are making an administrative change to require audit model 
vessels to report discards at the sub-trip level, rather than the haul 
level (see Changes from the Proposed Action) below.
    This rule also implements the availability for use of the MREM 
model. MREM verifies compliance with catch retention requirements and 
uses dockside monitoring (DSM) to collect information on allocated 
groundfish at the dock that otherwise would be collected at sea. Under 
the MREM model, the vessel operator and crew are required to retain and 
land all catch of allocated groundfish on all sector EM trips, 
including fish below the minimum size specified at 50 CFR 648.83, that 
otherwise would be required to be discarded. 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 VMP. EM data from the trip are reviewed by the EM 
service provider to verify that the vessel operator and crew complied 
with the catch retention requirements. A human dockside monitor meets 
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). The dealer must report to NMFS landings of all fish 
by MREM vessels, including fish below the minimum size specified in the 
regulations. This rule implements MREM consistent with the NMFS 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.
    A vessel may use the audit model or MREM to meet the sector 
monitoring requirement only if that EM model is included in the 
sector's approved operations plan. In order to effectively administer 
the ASM and EM systems, the Regional Administrator may approve only 
sector operations plans that adopt EM systems that limit switching 
between ASM and EM within the same fishing year. Thus, each operations 
plan that allows vessels to use EM must require such vessels to 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 use 
ASM until the VMP authorizing the use of the new gear type is approved. 
We would consider requests to switch from one EM program to another 
during a fishing year on a case-by-case basis that considers minimizing 
disruption and whether the switch is feasible within the current 
system. The Regional Administrator may provide written approval of 
adjustments to the restrictions on joining or leaving the EM program 
along with publishing such changes on the NMFS regional website, 
consistent with the current process for administrative changes to 
sector operations plans.
    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 Vessels Under Certain Conditions below), unless issued a 
waiver by NMFS. During each sector EM trip taken by a vessel, the EM 
system records all fishing activity on board 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.
    MREM vessels must also participate in a DSM program. The vessel 
operator

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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 sort fish below the 
minimum size specified at Sec.  648.83 by species (see Changes from 
Proposed Action below) and must separate unmarketable fish from fish 
below the minimum size.
    In fishing years 2022 and 2023, NMFS intends to operate the 
dockside monitoring program for all MREM vessels. During these two 
years, NMFS will work with partners to provide dockside monitoring to 
all MREM vessels and to develop the infrastructure and requirements for 
an industry-funded third party dockside monitoring program. During 
fishing years 2022 and 2023, NMFS will determine who will provide DSM 
(e.g., NMFS, partner) for each MREM vessel and will assign vessels 
accordingly. Subsequently, an industry-funded DSM model will be 
implemented and sectors will be required to contract with approved DSM 
providers to cover their MREM vessels. Detailed requirements for DSM 
programs for sector monitoring plans will be included in future sector 
operations plan guidance documents. If necessary, monitoring program 
regulations may be revised by the Regional Administrator in a manner 
consistent with the Administrative Procedure Act.
    This rule also implements requirements for Northeast multispecies 
dealers to facilitate DSM for MREM vessels. During MREM vessel 
offloads, dealers must 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 must retain all sublegal allocated groundfish catch in order to 
be weighed and sampled by the dockside monitor. Dealers must clearly 
mark all containers containing sublegal catch to facilitate tracking. 
This requirement provides a means for federally permitted dealers who 
purchase from MREM vessels or other federally permitted dealers who 
purchase from the primary dealer to demonstrate compliance with the 
minimum size requirements by ensuring all small fish can be traced to 
the landing MREM vessel.
    Dealers must 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.

Determining Total ASM Coverage at a Time Certain

    NMFS will announce the ASM coverage target at least 3 weeks before 
the annual sector enrollment deadline set by NMFS. NMFS will use all 
Federal funding information available at the time it makes its 
determination, including any remaining funding from previous 
appropriations, to determine the ASM coverage target for the following 
fishing year. For example, if Congress has not approved a final budget 
for the fiscal year when NMFS makes its determination of the coverage 
target for the next fishing year, NMFS will use the Federal funding 
status at that time to set the target coverage level for the upcoming 
year. NMFS will adjust the coverage level as necessary and appropriate 
based on final Federal funding and appropriations to NMFS. At this 
time, NMFS has sufficient funding from prior years' ASM appropriations 
to continue to reimburse sectors for the costs of ASM and EM in fishing 
year 2022.

Review Process for Monitoring Coverage Targets

    The Council will undertake a review to evaluate the effectiveness 
of the increased ASM coverage target 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 includes establishing metrics and 
indicators of how well the monitoring program improved accuracy while 
maximizing value and minimizing costs. 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 is 
currently developing the review process metrics. Results of the review 
will support a potential future Council action to refine the groundfish 
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 
annual catch limits (ACLs) at a level that prevent overfishing, 
including measures to ensure accountability.

Waivers From Monitoring Requirements

    This rule implements a system for 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. As described above, NMFS will 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 will continue to be 
required to notify NMFS of all trips through the pre-trip notification 
system (PTNS), but NMFS will 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 will consider whether changes to the FMP 
are necessary to ensure effective management if the ASM coverage target 
is less than 40 percent.

Exclusion From Monitoring Requirements for Certain Vessels Under 
Certain Conditions

    Amendment 23 excludes sector fishing trips fished in their entirety 
west of 71[deg]30' W Longitude from the ASM requirement. Vessels are 
required to notify NMFS of all trips through PTNS,

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but NMFS will 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 are required to comply with the vessel monitoring system 
(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 are required to have their system turned on and to comply 
with their VMP on all trips, including trips fishing exclusively west 
71[deg]30' W Longitude. The 30-day delay in effectiveness is waived for 
this provision (see DATES).

Review Process for Vessels Excluded From Commercial Groundfish 
Monitoring Program Requirements

    Amendment 23 establishes a process for reviewing measures that 
exclude certain vessels from the groundfish monitoring program 
requirements based on catch composition. This includes the 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 
Vessels Under Certain Conditions above). 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 
will conduct this review after two years of fishing data are available 
and every three years after that.

Increased Monitoring Coverage if Federal Funds Are Available

    Amendment 23 authorizes NMFS to increase ASM coverage beyond the 
target coverage level 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 will apply to year 5 and later, when the ASM 
coverage target would otherwise be 40 percent of sector trips. Each 
year, NMFS will 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 a measure to set revise the management 
uncertainty buffer for the sector portion of the ACL for each allocated 
groundfish stock to zero. The revised management uncertainty buffers 
apply only to sectors, and not to the common pool component of the 
fishery, or other sub-ACLs or sub-components for any stocks. In years 
that the ASM coverage target is set at 100 percent, the management 
uncertainty buffer will default to zero for the sector sub-ACL for 
allocated stocks, unless the Council specifies a different management 
uncertainty buffer through an action for a sector sub-ACL. The need for 
a management uncertainty buffer for the sector sub-ACL will continue to 
be evaluated as part of each specification action. The process by which 
the Council evaluates and sets management uncertainty buffers remains 
unchanged and the Council may adjust management uncertainty buffers in 
future actions.
    NMFS will make an annual determination prior to the start of the 
fishing year as to whether the buffers will be eliminated based on the 
ASM coverage target set for the fishing year and whether the Council 
has taken action to set a different management uncertainty buffer for a 
sector sub-ACL. If Federal funds are not available for 100 percent ASM 
coverage and a lower target coverage level is set, the management 
uncertainty buffers will be in place for that fishing year, subject to 
the Council's review as part of each specification action.
    The management uncertainty buffers for the sector portion of the 
ACL for each allocated groundfish stock previously set by Council 
remain in effect for fishing year 2022 (May 1, 2022, through April 30, 
2023).

Sector Reporting Streamlining

    Amendment 23 specifies the Regional Administrator's authority under 
section 305(d) of the Magnuson-Stevens Act to modify the sector 
monitoring requirements previously codified at Sec.  648.87(b)(1)(v) 
and the sector reporting requirements previously codified at Sec.  
648.87(b)(1)(vi) to streamline the sector reporting process. This final 
rule moves the requirements previously codified at Sec.  
648.87(b)(1)(v) to Sec.  648.11(l)(10)(iii) and redesignates the sector 
reporting requirements previously codified at Sec.  648.87(b)(1)(vi) as 
Sec.  648.87(b)(1)(v). Any changes to the requirements in Sec.  
648.11(l)(10)(iii) or Sec.  648.87(b)(1)(v) will be made consistent 
with the Administrative Procedure Act.
    As discussed above (see Electronic Monitoring), and in the proposed 
rule, the Regional Administrator is using this authority to require 
vessels using the audit model to report discards at the sub-trip level, 
rather than the haul level. During development of the audit model, 
under an exempted fishing permit, we determined trip-level reporting 
was sufficient and reduced the burden on vessels.

Additions 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. 
This rule adds all alternatives considered in Amendment 23 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.

Regulatory Adjustments and Corrections Under Regional Administrator 
Authority

    In this final rule, NMFS is implementing several administrative 
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, we 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, we move the sector monitoring program 
regulations from Sec.  648.87 to Sec.  648.11. Third, we revise Sec.  
648.11 to update the names of divisions within NMFS. Fourth, we revise 
Sec. Sec.  648.2, 648.10, 648.11, 648.14, 648.51, 648.80, 648.86, and 
648.202 to clarify that all regulations applicable to certified 
monitors also apply to monitoring staff in training. Finally, we

[[Page 75856]]

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 regulatory adjustments.

Comments and Responses

    We received 26 unique comment letters in response to the notice of 
availability (NOA) for Amendment 23 and the proposed rule. We also 
received one comment that was not germane to Amendment 23. Comments are 
grouped and summarized by topic.

General Comments on Amendment 23

    Comment 1: Twelve comments generally supported approval and focused 
on the need for, and benefits of, the preferred alternative to set a 
fixed ASM coverage target of 100 percent of sector groundfish trips for 
4 years. Seven comments generally opposed approval of Amendment 23 and 
focused on the cost to industry of the preferred alternative to set a 
fixed monitoring at-sea monitoring coverage target of 100 percent of 
sector groundfish trips; the negative effects of those costs on 
industry members and ports; and the lack of a guaranteed increase in 
quota resulting from increased monitoring. More specifically, six 
commercial fishing industry organizations generally opposed Amendment 
23 and one commercial fishing industry organization generally supported 
the action. One individual member of the fishing industry commented in 
support while another commented that if 100-percent monitoring is 
implemented, then the monitoring data must be used in stock 
assessments. Seven comments were submitted by students from colleges, 
universities, and law schools with a mix of support and opposition. 
Four environmental non-governmental organizations (eNGO) submitted 
comments supporting partial approval of the amendment. These eNGO 
comments supported the increase in monitoring, but opposed the default 
coverage target of 40 percent, setting coverage based on Federal 
funding, and removing the uncertainty buffer, and excluding some trips 
from the monitoring requirement until bias was completely removed from 
the fishery. One eNGO also submitted comments signed by 1,251 
individual members that support implementing a 100-percent at-sea 
monitoring coverage target.
    Response: On April 12, 2022, we approved Amendment 23, including 
all the management measures recommended by the Council. In this rule we 
are implementing Amendment 23 as proposed, with minor changes to the 
implementing regulations (see Changes from the Proposed Rule below). We 
respond in detail to specific comments on the ASM coverage target below 
(see Comments on the ASM Coverage Target).

National Environmental Policy Act (NEPA) Comments

    Comment 2: The Northeast Seafood Coalition (NSC) commented that the 
EIS does not comply with NEPA requirements and raised several concerns. 
First, NSC claims that scoping comments were ignored in the EIS and 
that Amendment 23 is an attempt to justify a pre-determined political 
objective. NSC alleges that the analyses focus on fishing effort and 
enforcement, which are not related to the purpose and need of the 
action. NSC argues that the alternatives were not reasonably compared 
to each other and the status quo. NSC also states the analyses do not 
provide evidence of widespread underreported catch, and that a peer 
review by a subset of the Council's Scientific and Statistical 
Committee (SSC) suggested additional analyses were needed to determine 
the frequency and magnitude of underreported catch. NSC also argues 
that increased monitoring will introduce additional bias to catch data 
and will not improve stock assessments. Finally, NSC highlights that 
the Council selected an alternative that was not in the draft EIS and 
that the final EIS includes analyses that were not part of the draft 
EIS.
    Response: We disagree with NSC's positions. The record of 
development of this action demonstrates the Council did not initiate 
Amendment 23 with a pre-determined political objective. The Council 
engaged in a rigorous scoping process, including consideration of all 
comments before determining the purpose and need of the action. The 
purpose and need are clearly focused on reliable and accurate catch 
accounting to support the conservation and management requirements of 
the FMP. Amendment 23 represents a long and inclusive process, begun in 
2015, of evaluating potential revisions to improve the reliability and 
accuracy of catch data while minimizing economic costs to industry.
    A comprehensive evaluation of the alternatives in relation to the 
purpose and need of the action includes fishing mortality and 
enforcement, among other metrics, in the analyses evaluating the 
impacts of the different monitoring coverage alternatives. The Affected 
Environment is described in the final EIS based on valued ecosystem 
components (VECs), including: Regulated groundfish species; non-
groundfish species/bycatch; the physical environment and essential fish 
habitat; protected resources; and human communities. VECs represent the 
resources, areas, and human communities that may be affected by the 
alternatives under consideration. VECs are the focus because they are 
the ``place'' where management action impacts occur. Within each 
section, the final EIS compares all alternatives to each other and to 
the No Action alternative. In Amendment 23, No Action is not 
necessarily the same as the status quo. For instance, the No Action 
alternative for setting an ASM coverage target requires an annual 
calculation that may range up to a 99-percent coverage target for which 
industry is responsible for costs as detailed in the regulations. 
However, the status quo is that the coverage target in fishing year 
2021 was 40 percent of sector groundfish trips and sectors were 
reimbursed for all industry monitoring costs.
    Bias analyses conducted by the Council's Groundfish Plan 
Development Team (PDT) were peer reviewed by a subset of the Council's 
SSC. That peer review determined that, in aggregate, the analyses 
demonstrated differences both in discarding behavior and in fishing 
behavior between observed and unobserved trips; and that the analyses 
suggest that discard estimates from observed trips should not be used 
to estimate discards from unobserved trips. The peer review noted that 
the analyses did not quantify the magnitude of unaccounted discards and 
that, with additional refinement and testing, two of the analyses could 
be used to provide estimates of the total quantity of unreported 
discards relative to annual catch limits or acceptable biological 
catches. In response to the recommendations of the peer review, the 
Council tasked the Groundfish PDT with further work to provide an 
estimate of an upper bound of the potential magnitude for missing 
legal-sized discards of Gulf of Maine cod in order to provide some 
characterization of the bounds of the discarding problem, and 
contracted an additional analysis for the final EIS titled ``Evaluating 
the Impact of Inaccurate Catch Information on New England Groundfish 
Management.'' The Council considered the analyses showing that current 
coverage could not provide a sufficiently accurate estimate of what is 
currently unseen on unobserved trips. Indeed, Amendment

[[Page 75857]]

23 seeks to improve the accuracy of catch information, which is 
necessary to ensure catch accountability and meet a core Magnuson-
Stevens Act requirement to prevent overfishing. The Council's choice to 
seek further data that should be sufficient for assessing the magnitude 
of bias by increasing at-sea monitoring coverage up to 100 percent was 
reasonable.
    Comprehensive monitoring with coverage up to 100 percent of trips 
will minimize bias in catch data by minimizing the opportunity for 
differences between observed and unobserved fishing activity. Removing 
bias from catch data improves one source of data included in stock 
assessments, but it is impossible to predict the outcomes of future 
stock assessments prior to acquiring unbiased or minimally biased data.
    Additional analyses were completed during the comment period of the 
draft EIS and were included in the final EIS, but this is neither 
unusual generally, nor problematic in this instance. The Council 
created and selected a new alternative during the meeting where it made 
a final decision, but the new alternative was a combination of an 
existing alternative with an additional measure that fell within the 
range of the other alternatives evaluated in the draft EIS and did not 
introduce any new concepts or impacts. This new alternative was created 
to incorporate and address public comments.

Executive Orders (E.O.)

    Comment 3: NSC commented that the amendment is not consistent with 
E.O.s 13777, 13840, and 13921. Specifically, NSC argued that Amendment 
23 is inconsistent with E.O. 13777 because it would eliminate jobs, is 
unnecessary, would be ineffective, and has costs exceeding the 
benefits. NSC also alleged that Amendment 23 would not facilitate 
economic growth of coastal communities and promote ocean industries and 
would not ensure productive and sustainable use of ocean, coastal, and 
Great Lakes waters, as required by E.O. 13840. Last, NSC alleged 
Amendment 23 was in direct contravention of E.O. 13921, which required 
the Council to submit a prioritized list of recommended actions to 
reduce burdens on domestic fishing and to increase production within 
sustainable fisheries, because it would increase burdens on domestic 
fishing and decrease production by small vessels.
    Response: We disagree. E.O. 13777 was revoked in January 2021. 
E.O.s 13840 and 13921, cited by the NSC, are consistent with the 
requirements of the Magnuson-Stevens Act's national standards and 
procedures for developing and implementing fishery management plans and 
amendments. None of the E.O.s cited by NSC eliminate or revise the 
requirements or authorities of the Magnuson-Stevens Act. Amendment 23 
is consistent with the Magnuson-Stevens Act requirements as described 
in the proposed rule and this final rule. Further, Amendment 23's 
development, conservation and management measures, and implementation 
are consistent with the policies and requirements of E.O.s 13840 and 
13921. Amendment 23 facilitates long-term economic growth by improving 
our ability to prevent overfishing and achieve optimum yield on a 
continuing basis (see response to Comment 5, below). As noted 
throughout this rule and the proposed rule, Amendment 23 measures are 
necessary to improve catch documentation in a cost-effective manner 
that is expected to improve the fishery's efficiency, productivity, and 
competitiveness.

National Standard (NS) 1 Comments

    Comment 4: NSC commented that Amendment 23 is contrary to NS 1 
because the economic analyses do not show that Amendment 23 will 
achieve optimal yield.
    Response: We disagree that Amendment 23 is contrary to NS 1. NS 1 
states ``Conservation and management measures shall prevent overfishing 
while achieving, on a continuing basis, the optimum yield from each 
fishery for the United States fishing industry.'' Optimum yield is the 
maximum sustainable yield as reduced by economic, social, or ecological 
factors, with the most important limitation being the requirement to 
prevent overfishing. Nothing in Amendment 23 prevents the Northeast 
Multispecies FMP from achieving optimum yield. To the contrary, 
Amendment 23 measures are intended to improve the long-term management 
of the fishery, including collecting more accurate and precise 
information to improve our ability to prevent overfishing and achieve 
optimum yield on a continuing basis. Further, NS 1 guidelines require 
the setting of status determination criteria (e.g., overfishing level, 
acceptable biological catch, annual catch limit) and accountability 
measures, and accurately setting these determination criteria relies, 
in part, on the improved information that Amendment 23 will provide. 
Because of the bias in observer data, documented in the final EIS, 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. Setting the ASM 
coverage target as high as possible, up to 100 percent, is expected to 
provide coverage sufficient to better assess the magnitude and nature 
of the bias that exists at current coverage levels that available 
information does not allow us to quantify. All of this information will 
better inform future management and coverage levels for the fishery. 
Thus, the measures in Amendment 23 were selected to improve the FMP's 
ability to meet NS 1 requirements.

NS 2 Comments

    Comment 5: NSC asserted that there is insufficient information in 
the draft EIS to show increased monitoring would improve assessments 
and management performance or that under-reported catch was widespread. 
NSC also argued it was inconsistent for Amendment 23 to raise concerns 
about potential high bycatch of stocks that are low in abundance. 
Further, NSC raised concern that the EIS states catch misreporting has 
occurred in the past, but uses data from those years to analyze 
economic impacts. Northeast Fishery Sector (NEFS) XII alleged that the 
analyses are flawed and not based in economic reality.
    Response: Amendment 23 is consistent with National Standard 2's 
requirement that ``Conservation and management measures shall be based 
upon the best scientific information available.'' The analyses included 
in the final EIS are based on the best scientific information available 
and are consistent with the Information Quality Act. The analyses in 
the Amendment 23 final EIS were prepared using data from accepted 
sources, and the analyses have been reviewed by members of the PDT and 
by the Council's SSC, where appropriate, including a peer review of the 
bias analyses. NSC does not identify any objective or peer-reviewed 
information that the Council or NMFS ignored. The analyses use all 
available fishery data and information to predict economic impacts of 
the various alternatives in Amendment 23 on the fishing industry. The 
Council acknowledged that available fishery-dependent data is biased 
and undertook Amendment 23 specifically to address the problem of bias 
in fishery-dependent data. While it is impossible to predict the effect 
of more accurate data on future assessments, ensuring catch 
accountability and minimizing bias will reduce uncertainty in the 
fishery

[[Page 75858]]

dependent data used in assessments as well as Council evaluation of 
economic effects of future actions. In addition to fishery-dependent 
data, assessments that inform management of the fishery use fishery-
independent data that is not subject to observer bias. NS 2 guidelines 
acknowledge that there may be gaps in data, or uncertainty, along with 
the need to weigh relevance, inclusiveness, objectivity, transparency, 
timeliness, and verification and validation of data to the extent 
possible. Given these considerations, the Council process and final EIS 
information include sufficient analyses and the best available 
scientific information that support Amendment 23's measures. The 
economic analyses in the final EIS look at the effects of increased 
monitoring, with and without government subsidies, at the vessel, port, 
and sector level. Members of the public could use this information to 
estimate costs either generally or for their specific fishing business.
    We disagree with NSC's premise that it is impossible for the 
commercial fishery to have high interactions with an overfished stock 
in need of rebuilding. While species differ, species managed under the 
Northeast Multispecies FMP, including cod, are known to contract their 
geographic range in response to declining population size and to 
congregate during various life stages, including during spawning. 
Improved monitoring will contribute to determining the level of 
interaction between the fishery and stocks.

NS 6 Comments

    Comment 6: NSC commented that Amendment 23 is contrary to NS 6 
because the EIS fails to assess the changes in behavior that are likely 
to result from its increased monitoring coverage. Specifically, NSC 
asserts that the baseline information that would be collected by 
comprehensive monitoring to inform a review of the monitoring program 
would not be an accurate reflection of the fishery and would not help 
to improve the management of the fishery. Further, NSC commented that 
requiring all vessels to meet the 100-percent ASM requirement is not 
fair and equitable.
    Response: We disagree that Amendment 23 is inconsistent with NS 6's 
requirement to take into account and allow for variations among, and 
contingencies in, fisheries, fishery resources, and catches. NS 6 
guidance acknowledges uncertainty that may arise from changed fishing 
behaviors and notes that data acquisition and analysis will help the 
development of management measures to compensate for variations and to 
reduce the need for uncertainty buffers. Amendment 23 intends to 
acquire additional monitoring information for analysis to address 
uncertainty in current catch information consistent with NS 6.
    Available analyses identified several biases in the current 
monitoring program and demonstrated monitoring data is not 
representative of the whole fishery. Observed trips are not 
representative of unobserved trips and monitoring data from observed 
trips cannot be extrapolated to the whole of the fishery, unless the 
level of observed trips is high enough to address biases that exist 
with lower coverage levels. NSC argues that higher ASM coverage 
introduces new bias because it influences where and when fishing 
occurs, and the stocks fishermen will target. However, NSC also argues 
that the final EIS contains no information on potential bias from 
achieving less than 100-percent coverage due to either a lack of 
Federal funds in years 1-4, or logistical challenges, or when the ASM 
coverage target defaults to 40 percent beginning in year 5. Requiring 
ASM on all sector groundfish trips would minimize, help identify or 
quantify, or eliminate monitoring bias.
    NSC provides no suggested alternative for sufficiently addressing 
bias. NSC's notion that more comprehensive monitoring would only 
provide biased information, and is therefore improper, in effect argues 
that any level of monitoring is faulty and improper because it changes 
fishing behavior. NSC's position acknowledges the differences in 
observed and unobserved trips that Amendment 23 is designed to address, 
but its argument is inconsistent with NS 6. Without offering suitable 
alternatives, its position unacceptably leaves the fishery without any 
means of addressing the uncertainty arising from bias or ensuring catch 
accountability. Instead, Amendment 23 is responsibly seeking further 
information that is necessary to better account for variations and 
contingencies in the fishery. Amendment 23's approach is consistent 
with NS 6 guidance that ``continual data acquisition and analysis will 
help the development of management measures to compensate for 
variations. . . .'' In addition, Amendment 23 provides for variations 
in use of monitoring by authorizing the use of EM as an alternative to 
human ASM.
    NSC seems to be misconstruing discussion of fairness and equity in 
the EIS with its concern that 100-percent monitoring would not be fair 
and equitable. The analysis in the EIS describes that if monitoring 
increases compliance with the FMP, it would create a fairer and more 
equitable fishery because all participants would be held to the same 
standards, thus preventing misreporting or illegal discarding behavior 
that results in an unfair competitive advantage. The additional 
observed information provided by Amendment 23 may also provide the 
basis for identifying inequities and for a more accurately managed 
fishery that benefits all participants.

NS 7 Comments

    Comment 7: NSC and representatives of NEFS XII commented that 
Amendment 23 is not consistent with National Standard 7 because it does 
not contain a cost-benefit analysis. NSC also commented that the EIS is 
inadequate because the economic analyses consider gross revenues, 
rather than net revenues, and it lacks a break-even analysis to justify 
vessel monitoring costs. Further, NSC commented that the EIS fails to 
demonstrate that Amendment 23's changes to the monitoring program 
justify its costs, does not allow the public to ascertain clearly the 
types and levels of burdens on different groups, and does not explain 
why monitoring coverage levels measures considered unnecessary in 
previous actions were selected by the Council in Amendment 23. Finally, 
NSC commented that the EIS fails to justify industry costs by providing 
meaningful benefits to industry members and science, arguing it is 
irrational to suggest that improved data resulting from a reduction in 
observer bias could lead to improved economic outcomes through improved 
stock assessments.
    Response: We disagree with the commenters that Amendment 23 is 
inconsistent with NS 7. NS 7 states, ``Conservation and management 
measures shall, where practicable, minimize costs and avoid unnecessary 
duplication.'' NS 7 does not require a formal cost-benefit analysis. NS 
7 guidance states that ``supporting analyses for FMPs should 
demonstrate that the benefits of fishery regulation are real and 
substantial relative to the added research, administrative, and 
enforcement costs, as well as costs to the industry of compliance. In 
determining the benefits and costs of management measures, each 
management strategy considered and its impacts on different user groups 
in the fishery should be evaluated. This requirement need not produce 
an elaborate, formalistic cost-benefit analysis. Rather, an evaluation 
of effects and costs, especially of differences among workable 
alternatives, including the status quo, is adequate.''

[[Page 75859]]

    Amendment 23 evaluates the differences between the alternatives and 
supports the Council's choice as the most practicable means of ensuring 
catch accountability. The benefit of Amendment 23 is providing 
sufficient information and a means of meeting NS 1 requirements to set 
status determination criteria (e.g., overfishing level, acceptable 
biological catch, annual catch limit) and to ensure catch 
accountability to prevent overfishing. Analyses in the final EIS show 
that the current system for setting ASM coverage targets, including 
achieving a 30-percent coefficient of variation on discard estimates, 
is not effective for providing accurate catch data for catch 
accountability. Thus, the resulting data could adversely affect core 
Magnuson-Stevens Act requirements. As a result, the EIS includes a cost 
efficiency analysis, rather than a formal cost-benefit analysis, that 
examines the most efficient way to achieve the levels of monitoring 
considered in Amendment 23 for ensuring catch accountability, and the 
effects on the groundfish fishery participants. The economic analyses 
in the EIS examine the effects of increased monitoring, with and 
without government subsidies, at the vessel, port, and sector level for 
the different alternatives. The economic analyses of the costs for the 
alternatives includes both static and dynamic approaches. The dynamic 
approach reports operating profit (net revenues). Further, Amendment 23 
caps the level of coverage for which industry would pay at 40 percent, 
which minimizes the economic impacts on vessels while still meeting the 
critical need for monitoring to improve conservation and management of 
the groundfish fishery. These considerations were thorough and helped 
identify and evaluate differences between the alternatives in order to 
minimize costs to the extent practicable, consistent with NS 7.

NS 8 Comments

    Comment 8: Four comments included concerns about Amendment 23 
meeting the requirements of NS 8. NSC commented that the community 
impacts were hard to understand, that it was counterintuitive to 
conclude that gross ex-vessel revenues would increase due to increased 
monitoring, that Amendment 23 does not provide for sustained 
participation by communities, and that if the required monitoring is 
not economically viable for every industry member, then distributional 
and allocative impacts must be considered. Another comment stated the 
EIS had not adequately considered the social and economic harm to 
fishing communities of the EM provision, and urged us to make EM 
mandatory and to subsidize EM start-up costs for low-engagement fishing 
communities. NEFS XII commented that the economic analyses are not 
based in economic reality because a 40-percent coverage target is not 
affordable without government subsidy and noted the EIS did not 
consider the benefits of local seafood being sold and consumed locally. 
NEFS X and XIII commented that Amendment 23 would consolidate the 
fleet, force out small family operators, and cause the permanent loss 
of shore side support industries. NSC also commented that Amendment 23 
is contrary to the Council's fleet diversity policy.
    Response: We disagree that Amendment 23 is inconsistent with NS 8. 
NS 8 states, ``Conservation and management measures shall, consistent 
with the conservation requirements of this Act (including the 
prevention of overfishing and rebuilding of overfished stocks), take 
into account the importance of fishery resources to fishing communities 
by utilizing economic and social data that meet the requirements of 
paragraph (2), in order to (A) provide for the sustained participation 
of such communities, and (B) to the extent practicable, minimize 
adverse economic impacts on such communities.'' NS 8 requires 
consideration of the importance of fishery resources consistent with 
the conservation requirement of the Magnuson-Stevens Act. The NS 8 
guidance specifies that deliberations regarding the importance of 
fishery resources to fishing communities must not compromise the 
achievement of conservation requirements and goals of the FMP.
    The potential for increased industry costs associated with 
monitoring or even some consolidation is consistent with the FMP's 
fleet diversity goal. The groundfish monitoring plan goals include 
achieving coverage levels sufficient to minimize effects of potential 
monitoring bias to the extent possible while maintaining as much 
flexibility as possible to enhance fleet viability. The FMP's fleet 
diversity goal does not ensure the participation of every participant, 
but rather seeks to provide flexibility to enhance fleet viability. 
Amendment 23 measures were developed to provide the balance that this 
goal seeks. It provides alternative means of monitoring that have 
differing costs and a sector may choose the combination of human ASM, 
audit EM, and MREM that best suits the operations of the sector and its 
member vessels. It seeks to minimize those costs when Federal funding 
is unavailable. It includes an evaluation that is expected to provide 
an opportunity to assess the effects on bias, fleet operations, and the 
benefits or costs of this program that does not exclude an assessment 
of fleet viability.
    As discussed above, the economic analyses in the EIS consider the 
effects of increased monitoring, with and without government subsidies, 
at the vessel, port, and sector level. The analyses forecasted that 
less-profitable fishing operations would lease quota to more-profitable 
operations with a net result of increasing gross revenues for the 
fishery. The FMP goals include managing the stocks at a sustainable 
level and creating a management system that supports a fleet capacity 
commensurate with resource status, as well as an objective to maintain, 
to the extent possible, a diverse groundfish fishery, including 
different gear types, vessel sizes, geographic locations, and levels of 
participation. Amendment 23 maintained these goals and focused on goal 
1 of the groundfish monitoring program: Improve documentation of catch. 
Amendment 23 looked at a range of options that adjust the current 
monitoring program to improve accounting and accuracy of collected 
catch data. The range included variable and fixed target coverage 
levels based on catch or trips, human ASM, two types of EM, and 
flexibility to allow sectors to choose the tools used to meet the 
sector monitoring requirement. Ultimately, the Council chose a fixed 
coverage target as high as could be achieved at zero cost to industry 
to form the basis of an analysis to further evaluate the fishery and 
its monitoring program. The Council also set a new lower cap on the 
coverage target that will be set when industry is paying for 
monitoring, as well as approving two EM models that sectors could 
choose to use to provide for sustained participation and minimize 
adverse economic impacts on communities to the extent practicable.

NS 10 Comments

    Comment 9: NSC commented regarding NS 10 that the safety 
implications and incentives of the various alternatives were not 
compared and stated that vessels may choose to fish in dangerous 
weather to minimize monitoring costs associated with waiting out 
weather.
    Response: We disagree that Amendment 23 is inconsistent with NS 10. 
NS 10 states, ``Conservation and management measures shall, to the 
extent practicable, promote the safety of human life at sea.'' NS 10 
requires

[[Page 75860]]

management actions include measures, to the extent practicable, that 
avoid situations that may create pressures for fishermen to fish under 
conditions they would otherwise avoid due to safety. For 
practicability, measures must be consistent with the legal and 
practical requirements of conservation and management of the resource. 
Amendment 23 includes an ASM coverage target that is conditioned on the 
availability of Federal funding for NMFS' and industry costs. It 
provides for the use of human ASM and EM as an alternative to ensure 
catch accountability and affordability, to the extent practicable. In 
the event that reduced Federal funding leads to industry paying for its 
costs, the Council's preferred alternative caps the level of ASM 
coverage industry would pay for at 40 percent. Fishing is an inherently 
dangerous occupation where not all hazardous situations can be foreseen 
or avoided. NSC commented that vessels carrying an observer might 
choose to continue fishing in bad weather to earn revenue to pay for 
monitoring costs when Federal funding is not available. Importantly, 
vessels may also choose to postpone a trip, or can end a trip in 
progress at any time, if safety is a concern. Vessels may also choose 
to adopt EM and eliminate the costs associated with having a human at-
sea monitor aboard during a weather layover.

Comments on the ASM Coverage Target

    Comment 10: NSC commented that NMFS had previously argued in court 
that the incremental biological benefits of 100-percent monitoring did 
not justify the costs and that EM was not a viable option, and asked 
why 100-percent monitoring was now economically viable and beneficial.
    Response: In Oceana, Inc. v. Ross, 275 F.Supp.3d 270, 290-91 
(D.D.C. 2017) (Oceana), NMFS argued that EM was, at that time, not 
sufficiently developed or suitable to be a viable replacement for human 
at-sea observers for the purpose of the standardized bycatch reporting 
methodology (SBRM). The SBRM is distinct from the groundfish sector 
monitoring program as it applies universally to all federally managed 
fisheries in the Greater Atlantic region rather than just to groundfish 
sector vessels. The data collected by SBRM observers include 
information (such as weights of fish, scales, and otoliths, among other 
things) that cannot effectively be collected via EM systems. Because of 
this, even groundfish sector vessels electing to use EM as an 
alternative to human ASM must still carry an SBRM observer when 
selected. Continued development of EM specifically for the groundfish 
sector fleet since the time of that case has resulted in two EM models 
that we have deemed suitable as alternatives to human ASM for the 
groundfish sector monitoring program. Specifically, the audit model 
requires fishermen that choose the model to place all discards on a 
measuring board in view of the camera to allow capture of length 
information while MREM prohibits discards of allocated groundfish 
stocks and is coupled with DSM to capture information not obtainable by 
cameras. Further, this rule does not require any vessel to use EM, but 
implements the Amendment 23 provision allowing a sector to choose the 
combination of human ASM, audit EM, and MREM that best suits the 
operations of the sector and its member vessels.
    In addition, since the lawsuit, new information and analysis raised 
questions and concerns about the efficacy of the groundfish sector 
monitoring program. Most importantly, bias analyses conducted by the 
PDT demonstrated differences both in discarding behavior and in fishing 
behavior between observed and unobserved trips at fleet-wide coverage 
levels that were generally below 35 percent. The analyses suggest that 
discard estimates from observed trips should not be used to estimate 
discards from unobserved trips when coverage rates are at low levels. 
The Council is revising the groundfish sector monitoring program, 
including increasing the ASM coverage target up to 100 percent of 
trips, to address bias and inform future action.
    Comment 11: NSC commented that the EIS did not provide evidence to 
support a conclusion that substantially increased levels of monitoring 
would meet the stated goals of the action to improve groundfish stock 
assessments and management of the fishery, or that unmonitored fishing 
activity was negatively affecting resource conservation.
    Response: We disagree that the ASM coverage target implemented by 
Amendment 23 is inconsistent with the stated purpose and need. 
Amendment 23 states the purpose of the action is to ``. . . adjust the 
current monitoring program to improve accounting and accuracy of 
collected catch data. It is the Council's intent that the catch 
reporting requirements are fair and equitable for all commercial 
groundfish fishermen, while maximizing the value of collected catch 
data, and minimizing costs for the fishing industry and the National 
Marine Fisheries Service.'' Amendment 23 states the need is ``. . . to 
implement measures to improve the reliability and accountability of 
catch reporting in the commercial groundfish fishery to ensure there is 
precise and accurate representation of catch (landings and discards). 
Accurate catch data are necessary to ensure that catch limits are set 
at levels that prevent overfishing and to determine when catch limits 
are exceeded.''
    Amendment 23 maintains the current goals and objectives of the 
groundfish monitoring program, but addresses Goal 1 to improve 
documentation of catch, described as ``improved catch accounting'' 
during the scoping process. The objectives associated with that goal 
are: (1) determine total catch and effort, for each sector and the 
common pool, of target or regulated species; and (2) 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. Amendment 23 adopts the highest ASM 
coverage target practicable, and provides for the use of EM, to inform 
future changes to the monitoring program and ensure catch 
accountability while balancing the effects of monitoring costs on the 
fishery. As discussed above, the Council chose a fixed coverage target 
as high as could be achieved at zero cost to industry to reliably and 
accurately estimate catch and to form the basis of an analysis to 
further evaluate the fishery and its monitoring program. The Council 
also set a new lower cap on the coverage target that will be set when 
industry is paying for monitoring, as well as approving two EM models 
that sectors could choose to use to provide for sustained participation 
and minimize adverse economic impacts on communities to the extent 
practicable.
    Amendment 23 measures are meant to improve the long-term management 
of the fishery, including collecting more accurate and precise 
information to improve our ability to prevent overfishing and achieve 
optimum yield on a continuing basis. As discussed above, analyses of 
bias suggest that discard estimates from observed trips at low coverage 
levels should not be used to estimate discards from unobserved trips. 
Thus, when observer coverage levels are low, catch from unmonitored 
fishing cannot be reliably estimated from observed trips. NS 1 
guidelines require the setting of status determination criteria, and 
accurately setting these determination criteria relies on the improved 
information that Amendment 23 will provide.
    Comment 12: The Cape Cod Commercial Fishermen's Alliance

[[Page 75861]]

(CCCFA) supported the increased monitoring required under Amendment 23 
and asserted that uncertainty over accurate and precise catch 
information and an inconsistent survey have combined to make management 
of the Northeast multispecies complex unable to rebuild key stocks. The 
Nature Conservancy (TNC) supported replacing the current method for 
determining the ASM coverage target for deploying human at-sea monitors 
with a fixed coverage target and setting the ASM coverage target at 100 
percent for 4 years, but opposed setting the ASM coverage target based 
on funding and argued that target coverage rates should be based on the 
level of monitoring needed to achieve the goals and objectives of 
Amendment 23. The Environmental Defense Fund (EDF) and the Conservation 
Law Foundation (CLF) supported the 100-percent coverage target, but 
opposed defaulting to 40-percent coverage in the absence of Federal 
funding. CLF also submitted a comment on behalf of 1,251 members who 
had individually signed a letter supporting the 100-percent monitoring 
target. EDF highlighted that the final EIS stated that statistical 
analyses ``cannot quantify the differences between observed and 
unobserved trips in a way that allows for either a mathematical 
correction to the data or a survey design that resolves bias.'' EDF 
went on to interpret this to mean there is no mechanism to account for 
observer coverage bias except to eliminate it. Oceana supported the 
coverage target, but commented that 100-percent coverage would not 
completely remove bias due to unobserved tows or hauls. NSC opposed the 
coverage target based on issues related to NEPA and the National 
Standards (see above) and raised a concern that if the target coverage 
is not achieved there is no defined plan to ensure the monitoring 
program provides unbiased data.
    Response: We agree that sector monitoring programs must ensure that 
monitoring coverage is sufficient for monitoring catch and discards, 
and that the current method for determining the ASM coverage target 
based on a CV analysis should be replaced for total catch accounting 
under the sector program. Analyses included in the final EIS documented 
that using a 30-percent CV was an insufficient basis for determining 
the necessary at-sea monitoring coverage target, without modification, 
because observer bias resulted in observed trips not being 
representative of unobserved trips. This differs from using a CV to 
determine review rates for EM programs where cameras are on and catch 
handling protocols are followed on 100 percent of groundfish trips; and 
from the SBRM program where there is limited incentive for vessels to 
fish differently on trips carrying an observer than on trips when 
without an observer. Using a method based on a CV to determine ASM 
target coverage levels is not effective to estimate total catch because 
observed trips at low levels of coverage are not representative of 
unobserved trips and there is an incentive for vessels to fish 
differently when carrying an at-sea monitor than on trips without an 
at-sea monitor. Because the catch data collected from low coverage 
levels are not representative of the entirety of the sector fishery, we 
cannot calculate an ASM coverage target that we can be reasonably 
confident would eliminate or minimize bias sufficiently to ensure catch 
accountability. The Council chose a fixed ASM coverage target of up to 
100 percent to address bias by establishing a baseline of accurate and 
precise catch information for the fishery. The ASM coverage targets are 
coupled with a review process to evaluate the monitoring program once 
two full years of data are available. The preferred alternative adopts 
the highest level of ASM practicable, while balancing the effects of 
monitoring costs on the fishery, to inform future changes to the 
monitoring program and ensure catch accountability.
    We disagree that the ASM coverage target should be 100 percent of 
trips regardless of Federal funding and that the 40-percent default 
coverage target should be disapproved. Monitoring coverage targets 
should be designed to achieve their stated purpose, ensuring catch 
accountability in as cost-effective manner as practicable. We have 
learned that setting ASM coverage targets based on coefficients of 
variation does not account for bias. The Council approved a new manner 
of determining ASM coverage targets designed to provide sufficient data 
to ensure catch accountability and determine what targets might be 
suitable under 100 percent.
    Monitoring is always dependent on the availability of Federal 
funds, because even under industry-funded monitoring programs, NMFS 
incurs costs associated with administering monitoring programs. The 
coverage target in Amendment 23 is 100 percent of trips, so long as 
NMFS and industry costs for that coverage are funded with Federal 
appropriations. The 40-percent default coverage target in years 1-4 is 
the point at which available Federal funding would be solely applied to 
NMFS' costs in the event that a lack of funding would otherwise result 
in less than 40-percent coverage. ASM coverage targets of at least 40 
percent on a consistent basis would be an increase from attained 
coverage levels to date.
    Importantly, EM is available as an alternative to human ASM to 
ensure catch accountability. Sector monitoring programs must be 
satisfactory for monitoring catch and discards. This includes the 
potential use of EM as an alternative or if determined to be necessary 
as part of a future evaluation.
    Comment 13: CCCFA supported NMFS covering industry costs when 
Federal funding is available because the industry is struggling 
economically and needs to minimize costs until groundfish stocks are 
rebuilt. One fisherman commented that basing the ASM coverage target on 
Federal funding creates an incentive for the industry to try to reduce 
funding for NMFS so that coverage levels will decrease. The commenter 
suggested the Council should establish an affordable level of industry 
monitoring costs, similar to the model used in the scallop fishery, to 
obtain the long-term benefits of accountability.
    Response: We agree that the Federal funds appropriated for industry 
costs will facilitate industry transitioning to comprehensive 
monitoring. 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 and removing the management uncertainty buffers from the 
sector portion of the ACL, 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 for the evaluation 
of the program. Amendment 23 includes a requirement to evaluate the 
efficacy of sector monitoring coverage rates, to occur once two full 
fishing years of data is available. The intent of that review is 
evaluation of whether the monitoring program is meeting the goal of 
improved accuracy of catch data, while maximizing value and minimizing 
costs of the program through a future action. The Council wants to be 
sure enhanced levels of monitoring data are working as intended and the 
increased costs to industry are providing expected benefits from 
improved accuracy and reduced potential for bias in catch data. The 
Council could choose to reevaluate the

[[Page 75862]]

funding structure of the groundfish sector monitoring program as part 
of that review.
    Comment 14: Oceana commented that any assumptions of completely 
removing bias by at-sea monitors observing 100 percent of trips is 
flawed and should be amended. Oceana specified that no observer can 
observe every tow or haul, and noted unobserved fishing happens on 
trips carrying observers, particularly on multi-day trips where 
observers are limited in the number of hours that they can work.
    Response: We agree that requiring a single human at-sea monitor on 
100-percent of trips does not assure every tow or haul is observed. 
However, we disagree that the language of the final EIS and amendment 
needs to be revised. The amount of catch and discards that an at-sea 
monitor may miss for various reasons (e.g., fish being discarded while 
the at-sea monitor is not looking or is below deck) does not 
necessarily introduce bias because it does not change where and how 
vessels fish. Also, only some trips (33 percent in 2021) occur over 
multiple days where a human at-sea monitor will sleep or otherwise does 
not observe catch or discards. Further, some vessels, including a 
portion of vessels taking trips over multiple days, will be using EM 
rather than human at-sea monitors. All vessels using EM are required to 
have the camera system operational for the entirety of all sector 
groundfish trips. In particular, because all sector vessels are subject 
to human observer coverage as part of the SBRM, there may be 
opportunities to evaluate the possible effect by comparing EM and 
observer data on trips where a human at-sea monitor does not observe 
all tows. While 100-percent monitoring coverage might not completely 
remove the possibility for unobserved catch and discards, it does meet 
the Council's goal ``. . . to achieve a monitoring coverage level that 
ensures precise and accurate catch (landings and discards) estimation 
and minimizes the potential for biases in the estimates.''
    Comment 15: NSC commented in opposition to the 40-percent ASM 
coverage target in the absence of Federal funding and argued that there 
was no basis to conclude that industry could afford to pay for 40-
percent coverage. NEFS XII commented that the sector could not afford 
the current cost of monitoring without the subsidy provided by Federal 
appropriations, and that the sector's contracted ASM cost equates to a 
standardized daily cost of 13 to 18 percent of gross revenue on every 
trip.
    Response: The Council selected a minimum ASM coverage target of 40 
percent in the event that Federal funds are not available in a given 
year to ensure accurate catch information is still provided while 
addressing concerns about industry costs. The minimum target level of 
40 percent will be funded by either sectors (if no Federal funds are 
available) or a combination of sectors and Federal funds. Making the 
coverage target contingent on Federal funding for industry costs 
balances the need for improved monitoring with the economic effects to 
the fishery. In years with a 40-percent ASM coverage target, Federal 
funding would be used to first pay NMFS costs for administering the 
monitoring programs and then support as much of industry costs as 
possible. Combined with the option for vessels to use EM, the increased 
cost to industry is mitigated to the extent practicable. Further, this 
change from the current maximum possible industry-funded ASM coverage 
target of 99 percent represents a reduction in the maximum monitoring 
costs that industry could have to pay. Further, all human observer 
coverage assigned to sector trips under the SBRM counts towards 
achieving the human ASM coverage target and this coverage is Federally 
funded.
    A 40-percent ASM coverage target is an improvement from the average 
ASM coverage target from fishing years 2010-2017, which was 22 percent. 
The effects of 40-percent coverage on regulated groundfish would fall 
somewhere between the impacts of 25-percent coverage and 50-percent 
coverage, which were analyzed in the EIS. Thus, 40-percent coverage 
would have neutral to low positive effects on groundfish stocks, 
relative to No Action, because this target coverage level would 
represent an increase from the average realized coverage. However, with 
40-percent coverage, there may be sources of unaccounted mortality in 
the fishery and an incentive to discard fish illegally when not 
monitored.
    Comment 16: NSC commented that the proposed action is inconsistent 
with the regulatory requirements for an industry-funded monitoring 
program because the EIS did not analyze whether individual participants 
or ports could afford the industry costs associated with a 40-percent 
coverage target, and that not all participants could pay for the 
monitoring while remaining profitable. In particular, NSC alleged that 
Amendment 23 threatens the continued existence of the fishery and will 
diminish the net benefits to the nation.
    Response: The industry-funded monitoring regulations at 50 CFR 
648.11(g) apply to the development of new industry-funded monitoring 
programs by the Council. These regulations were implemented after the 
implementation of the groundfish sector monitoring program. 
Nevertheless, the groundfish sector monitoring program is consistent 
with the industry-funded monitoring provisions.
    The groundfish sector monitoring program is necessary to monitor 
catch, discards, and utilization of sector annual catch entitlement 
(ACE). It helps ensure catch accountability and prevent overfishing as 
required by the Magnuson-Stevens Act. Objective design criteria are 
enumerated in Sec.  648.11(l). As discussed above, the EIS includes a 
cost efficiency analysis that examines the most efficient way to 
achieve the levels of monitoring considered in Amendment 23 for 
ensuring catch accountability, and the impacts on the groundfish 
fishery participants. Further, the Council's preferred alternative caps 
the level of coverage industry would pay for at 40 percent, which 
minimizes the economic impacts on vessels while still meeting the 
critical need for monitoring to improve conservation and management of 
the groundfish fishery. Additionally, when the selected coverage target 
is combined with other measures in Amendment 23 (specifically EM and 
removal of management uncertainty buffers), the increased costs to 
industry are minimized. We will continue to grant waivers from the 
monitoring requirement for logistical reasons and in the event that 
coverage is not available due to a lack of Federal funding for NMFS' 
costs. The sector monitoring program requires sectors to directly 
contract with monitoring service providers rather than establishing a 
cost collection. Standards for monitoring providers are enumerated at 
Sec.  648.11(h) and (l)(10)(ii). Additional implementation measures are 
also specified in Sec.  648.11(l). Last, the groundfish sector 
monitoring program revised by Amendment 23 applies only to vessels 
participating in the voluntary sector catch share program. Each year, 
each vessel issued a limited access Northeast multispecies permit may 
opt to fish as part of a sector or to fish as part of the common pool 
fishery that is managed with a combination of effort controls and does 
not have an industry-funded monitoring requirement.
    Comment 17: NSC commented that the impacts of the new coverage 
target are unclear because the status of Federal funding for later 
years is unknown.
    Response: We agree that it is not possible to predict precisely the 
exact costs of the coverage target in future

[[Page 75863]]

years because the coverage may fluctuate for the industry as a whole 
and individual sectors or vessels; however, the EIS explicitly 
discusses that the economic effects of the coverage target depend on 
the availability of Federal funds to reimburse sectors for monitoring 
costs and the actual coverage targets set in each year. If there is no 
Federal funding to subsidize industry monitoring costs, then industry 
would be responsible for the full costs of a 40-percent coverage 
target, except for any observer coverage provided under the SBRM. The 
EIS uses both a linear model and a dynamic model to estimate costs to 
industry in this scenario. If full subsidy continues at any coverage 
target, then the effects would be neutral relative to status quo, 
because in past years most monitoring costs were reimbursed. While 
direct economic effects may be offset by any subsidy available for 
monitoring, indirect negative effects may also occur, if monitoring 
creates additional tasks or delays in at-sea operations. Overall, if 
there is no subsidy, fleet-wide ASM costs are estimated to be 
approximately $2.09 million per year, a negative impact relative to No 
Action ($0.9 million), due to the increase in the coverage target from 
the average coverage target in recent fishing years. Economic effects 
may be positive relative to No Action if there is more than $1.2 
million available for monitoring, since if any less is available, then 
the No Action would be less expensive. The costs of monitoring of up to 
40 percent coverage will not be uniformly borne by the fleet because 
those fishing more will generally pay more. There are also differences 
in how much of the total coverage will be accounted for by SBRM 
observer coverage on a sector and individual vessel level. In general, 
those fishing less also earn less on groundfish trips and groundfish 
trips may represent a higher proportion of total groundfish revenue as 
compared to higher grossing vessels. In general, vessels with low 
engagement in the fishery tend to be smaller and are also less reliant 
on groundfish fishery revenue, so effects from increases in monitoring 
coverage may mean those vessels are more likely to shift into other 
fisheries and lease their share of sector quota to active participants. 
Costs by homeport, engagement level, vessel size, and sector were 
estimated and included in the EIS. These are thorough estimates that 
inform the public sufficiently of potential costs and benefits of the 
action.
    Comment 18: NSC alleges that there is no analysis or acknowledgment 
in the EIS that the increased monitoring will drive many current 
participants permanently out of the fishery with corresponding impacts 
on small coastal fishing communities with limited opportunities for 
alternate employment.
    Response: We disagree. As NSC points out elsewhere in its comments, 
the EIS states that coverage levels based on a percentage of trips may 
have effects that are ``disproportionately negative for commercial 
groundfish sector program day boat participants, typically those 
operating smaller vessels or vessels contributing relatively small 
proportions to overall groundfish landings.'' Costs by homeport, 
engagement level, vessel size, and sector were estimated and included 
in the EIS. The EIS specifically highlights the ports that may have 
relatively greater negative social impacts as a result of monitoring 
coverage on a higher percentage of trips.
    Comment 19: CCCFA commented that NMFS must ensure that there is 
increased observer capacity in order to minimize waivers and meet human 
ASM targets to achieve a robust monitoring program. NEFS V and XI 
commented that achieved ASM coverage levels will not reach or approach 
100 percent due to existing logistical issues and ASM staffing.
    Response: We agree that we must increase observer capacity and that 
in certain circumstances we may not meet a monitoring coverage target, 
particularly in the first year as we ramp up coverage and may face 
logistical complications. We have increased the number of at-sea 
monitor training sessions and contracted out training to increase the 
number of certified at-sea monitors available to support the increased 
ASM coverage target. Currently, there are 83 trained at-sea monitors, 
we have the potential this year to train 80 additional new at-sea 
monitors, and the potential to cross train an additional 40 observers 
or industry-funded scallop observers to be at-sea monitors. We will 
continue to issue waivers from ASM for selected trips in specific 
circumstances, including logistical reasons such as a late observer, 
safety, or if an observer or at-sea monitor is not available to cover 
the trip, consistent with current practice.
    The Council chose a fixed ASM coverage target of up to 100 percent 
to address bias by establishing a baseline of accurate and precise 
catch information for the fishery, but the Council designed the 
groundfish sector monitoring program to have an ASM coverage target, 
and to allow waivers to be issued, because it did not wish to create a 
requirement that could prevent vessels from participating in the 
groundfish fishery if monitoring coverage was not available. The ASM 
coverage target will be set at the maximum level for which there are 
sufficient Federal funds to support all NMFS and industry costs. 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.
    The availability of EM also provides a potential option for sector 
monitoring programs to meet their obligation to develop and implement 
an ASM or EM program that is satisfactory to, and approved by, NMFS for 
monitoring catch and discards and utilization of sector ACE 
sufficiently to ensure catch accountability.
    Comment 20: NEFS V and XI commented that higher ASM coverage 
targets are necessary, but suggested that a 100-percent coverage target 
would change the landscape of the Northeast groundfish fishery 
permanently. They noted that, during the development of Amendment 23, 
discussion centered on bias of observed versus unobserved groundfish 
trips, but that there was no detailed discussion on the specifics of 
which vessels were involved, when bias occurred, where bias occurred, 
or the magnitude of the bias. Further, they commented that not all 
vessels alter fishing practices on observed trips and, therefore, 
should not pay a price for the behavior of others. They concluded that 
further discussion of the magnitude of the problem would have resulted 
in the development of a more robust, efficient, and cost effective 
monitoring program.
    Response: We agree it is possible that the increased monitoring 
coverage in Amendment 23 may change the fishery, but disagree that the 
development of Amendment 23 lacked thorough discussion of the issues 
around bias. The Council chose a fixed ASM coverage target of up to 100 
percent to address bias by establishing a baseline of accurate and 
precise catch information for the fishery because the current biased 
catch data makes it impossible, at this time, to calculate an ASM 
coverage target less than 100 percent that would eliminate or minimize 
bias sufficiently to ensure catch accountability. Increased ASM 
coverage targets, up to 100 percent, would increase the accuracy of 
catch

[[Page 75864]]

estimates and reduce the potential for bias more than any other 
coverage target considered. Setting the coverage target up to 100 
percent also simplifies compliance and enforceability of the monitoring 
program by removing a complex system of stratified random sampling. 
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.
    Comment 21: NEFS V and XI commented that an ASM coverage target of 
100 percent would result in a significant portion of fishermen leaving 
the groundfish fishery to retire or focus on other fisheries. They 
clarified that the exodus would not be because monitoring would require 
behavioral changes affecting fishing activity, but because industry 
members feel the monitoring is a burden imposed because of the 
activities of a small number of dishonest fishermen.
    Response: We disagree with the assertion that Amendment 23 is 
focused on the activities of dishonest fishermen. In January 2016, the 
Council first tasked its Groundfish PDT to evaluate the current ASM 
program against the goals and objectives for the program as clarified 
in Framework Adjustment 55. In November 2016, the Council initiated 
Amendment 23. The Council engaged in a rigorous scoping process, 
including consideration of all comments before determining the purpose 
and need of the action. The purpose and need are focused on reliable 
and accurate catch accounting to support the conservation and 
management requirements of the FMP. Analyses conducted for Amendment 23 
determined that observer bias is a problem in the sector monitoring 
program. One objective of the program is to achieve a 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, but the monitoring program and Amendment 23 
are not enforcement tools. Vessels that find the groundfish sector 
monitoring program burdensome may opt to fish as part of the common 
pool in which case they are not required to participate in, or pay for, 
the groundfish sector monitoring program. Amendment 23 also approves 
two types of EM as alternatives to provide flexibility for sectors to 
determine the monitoring tools that best fit their operations.

Comments on EM

    Comment 22: Three members of the public, one industry member, 
CCCFA, EDF, CLF, and Oceana commented in general support of EM. CLF 
noted that making EM available in addition to ASM can reduce costs and 
also submitted a comment on behalf of 1,251 members who had 
individually signed nearly identical comment letters that supported EM. 
One member of the public argued that EM is a cost-effective alternate 
to human ASM and may be of particular value to larger vessels.
    Response: We agree EM should be approved. We previously implemented 
the audit model of EM, and through this final rule, we are implementing 
the MREM model for the reasons given in the proposed rule.
    Amendment 23 provides an additional EM choice that sector 
monitoring plans may include so that individual vessels may choose 
whether to use human at-sea monitors, the audit model, or MREM for a 
fishing year. EM allows flexibility for those individual vessels to 
determine which monitoring tool is the best option to ensure catch 
accountability based on economics, individual fishing operations, and 
personal preference. Amendment 23 does not require any business to 
adopt EM, however.
    Amendment 23 does not remove the requirement for sectors to develop 
and implement an ASM or EM program that is satisfactory to, and 
approved by, NMFS for monitoring catch and discards and utilization of 
sector ACE. It is conceivable that a future monitoring program review 
may find that EM is necessary in some circumstances to ensure catch 
accountability. The Amendment 23 approval of MREM as an option does not 
prevent a future Council from requiring EM as necessary to address such 
a finding. Amendment 23 also does not prevent the Regional 
Administrator from approving EM as a requirement if found necessary to 
ensure that sector monitoring programs are satisfactory for monitoring 
catch, discards, and utilization of sector ACE. On April 2, 2021, we 
announced our policy for EM cost reimbursement that includes purchase 
and installation of EM equipment in addition to video review and 
technical support costs.
    Comment 23: One individual commented that we should not approve EM 
as an option to use in lieu of human at-sea monitors unless adequate 
research has determined the efficacy of EM. This individual also 
commented that while EM is offered as a cost-effective replacement for 
human at-sea monitors, EM could eliminate jobs and may be expensive to 
maintain and repair over time. A group of law students commented in 
opposition to Amendment 23 based on a misunderstanding that EM would be 
required of all vessels, asserted that the costs were too great for 
industry to bear, particularly small businesses, and argued we should 
implement EM only when Federal funding is available to defray industry 
costs.
    Response: We have worked collaboratively with industry members and 
other partners since 2010 to develop the audit and MREM models. The 
analyses included in the EIS document the estimated costs of EM, 
including installation, operation, maintenance, and periodic 
replacement. Further, the economic analyses compare the costs of EM and 
human at-sea monitors across the fishery as a whole and at a vessel 
level. The blended approach to monitoring allows individual fishing 
businesses to choose whether to use human at-sea monitors, the audit 
model, or MREM. EM allows flexibility for those businesses to determine 
which monitoring tool is the best option to ensure catch accountability 
based on economics, individual fishing operations, and personal 
preference. EM costs are highest in the first year, due to the need to 
purchase and install equipment, and decline in following years. 
However, Federal funds are available now to reimburse the full costs of 
purchasing and installing EM equipment, in addition to on-going 
operational costs for EM and human ASM. These funds are limited, 
however, and we cannot guarantee their availability in the future.
    Comment 24: NSC commented that EM is not a viable option for 
commercial operations. Specifically, NSC claimed that the costs of 
catch foregone to allow storage of unmarketable fish on MREM vessels 
were not considered in the EIS; the analyses failed to consider the 
various components and costs associated with DSM; the complete costs of 
EM are not known, may escalate over time, and may not be cheaper than 
human at-sea monitors; and that EM data will not make a meaningful 
contribution to improving estimates of stock abundance.
    Response: We disagree. We previously approved the audit EM model 
for use by sectors for fishing year 2021 and this action approves MREM 
for use by sectors. Analyses in the EIS include total costs of each of 
the EM and ASM options, including the scenario where EM equipment and 
installation costs are subsidized, as they are now with funds

[[Page 75865]]

appropriated by Congress. Monitoring costs by homeport, engagement 
level, vessel size, and sector were estimated and included in the EIS.
    The cost analyses do not explicitly estimate the cost of potential 
catch foregone by an MREM vessel to accommodate the requirement to land 
all allocated groundfish, including unmarketable fish. To date, vessels 
participating in the MREM program have not identified this issue as 
affecting their fishing operations, or choice to use MREM. This may be 
at least in part because MREM vessels have landed only small amounts of 
unmarketable fish. Individual vessel fishing practices and physical 
configurations can differ substantially, along with actual costs and 
opportunity costs. Each fishing business would need to determine 
whether potential foregone catch would make the MREM program too costly 
in relation to ASM or the EM audit model.
    Cost estimates for MREM in the final EIS include DSM costs. These 
estimates use information developed in the detailed analysis of the 
alternatives for a mandatory dockside monitoring program for the 
fishery (sectors and common pool). The Council chose not to implement a 
mandatory DSM program for the entire fishery, but the economic 
estimates remain informative and were used in estimating overall costs 
for MREM.
    Counter to NSC's assertion that EM costs may escalate over time, we 
anticipate that EM costs are likely to decline over time for multiple 
reasons. First, costs of technology, including hardware, transmission 
costs, and data storage costs, have continuously declined over time. 
Second, review rates for EM vessel trips are not static and could be 
reduced or increased in response to an individual vessel's performance 
with EM.
    Comment 25: In its comment, the Council requested an update on the 
requirement for MREM vessels to discard any red hake in excess of the 
possession limit, the inability of current EM systems to distinguish 
red hake from white hake using cameras, and how this issue is being 
addressed under the MREM exempted fishing permit (EFP). CCCFA commented 
that the Council should consider this issue as part of its review of 
Amendment 23 and suggested that the approach used in the audit model 
could be used in the interim.
    Response: A percentage of MREM trips taken under the EFP carry at-
sea monitors to estimate discards of non-allocated groundfish stocks. 
Data from those trips are used to create discard ratios in order to 
calculate discards for non-allocated stocks that are applied to MREM 
trips without at-sea monitors. Under the EFP, participating MREM 
vessels are required to retain all red hake. After further reviewing 
this practice and available data, we have developed a different 
approach that is implemented by this rule for the operational MREM 
program. MREM vessels will be required to comply with the red hake trip 
limits, meaning they will be required to discard red hake over the 
applicable possession limit. A portion of MREM trips will carry a NEFOP 
observer. Discards of non-allocated stocks (including red hake) from 
MREM trips that carry an observer will be calculated based on the 
observer data. Discards of non-allocated stocks on MREM trips, and 
discards of unallocated stocks on trips where the EM system fails or 
footage is not usable, will be calculated, by stratum, based on MREM 
and other trips that carry an observer.
    Allocated stocks are assigned a discard rate of zero on unmonitored 
trips, including white hake (for which there is no minimum size). Thus, 
sector vessels are required to land all white hake, and discards of 
hake on MREM trips will not be counted as white hake. Rather, we will 
presume all discarded hake are not white hake, unless there is 
sufficient information (e.g., observer data, clear video of discarded 
hake larger than red hake and spotted hake) to suggest otherwise, and 
that all discarded hake are red hake or spotted hake. We intend to 
collect data on hake discards in the first year(s) of the operational 
MREM program, including comparing catch of hake on NEFOP observed trips 
to MREM trips, to better understand the volume and nature of discards 
and will share that information with the Council for use in its review 
of Amendment 23.
    Comment 26: Teem Fish and CCCFA commented that discards of 
allocated groundfish that occur on MREM trips should be considered 
operational discards, and recorded as such during EM review, when they 
fall within the example situations noted in the proposed rule (fish 
that drop out of the gear into the ocean, fish taken by birds) because 
these are extenuating circumstances that are mostly outside the control 
of the vessel.
    Response: Some discards of allocated groundfish may at times occur 
on any observed or monitored trips. NEFOP, ASM, MREM, and audit EM 
trips may include operational discards (fish that drop out of the gear 
into the ocean, fish taken by birds), accidental discards, or 
intentional discards. These discards cannot always be estimated using 
current EM technology. We agree that operational discards should be 
annotated during review of EM footage, should not count against sector 
allocations, and should not trigger enforcement action. The EM reviewer 
guidance will be updated to treat MREM and audit model trips the same. 
However, the Council should consider how to account for all discards on 
EM trips in the overall management of the fishery.
    Comment 27: CCCFA and Teem Fish commented that we should revise the 
requirement for a vessel owner or operator to ``make the electronic 
monitoring system, associated equipment, electronic monitoring data, or 
vessel monitoring plan available to NMFS for inspection, upon 
request,'' to state explicitly that the service provider of the EM 
system should be included in NMFS' request and allowed to be present 
for the requested inspection.
    Response: We disagree and have approved the regulatory requirement 
as proposed. This is an existing regulatory requirement that was 
previously codified at 50 CFR 648.87(b)(5)(iii)(A)(3)(v) and is only 
moved by this rule to Sec.  648.11(l)(10)(i)(B)(5) as part of a 
reorganization of the regulations, but was not proposed to be changed. 
This requirement applies to all EM vessels at all times, including when 
boarded at sea. Requiring inclusion of EM service providers in the 
request for the opportunity to be present could hamper real-time 
enforcement and present problems for documenting the chain of custody 
if the EM system, equipment, data, and vessel monitoring plan were not 
immediately turned over upon request. The regulatory requirement does 
not prevent a vessel from requesting their EM service provider's 
assistance.
    Comment 28: CCCFA and Teem Fish requested that we clarify the 
specific facilitation requirement proposed as part of the implementing 
regulations at Sec.  648.11(l)(5)(vii)(P)(1). Specifically, each asked 
about the roles of EM providers and NMFS, and whether we intend for the 
role of troubleshooting and system issue resolution to be handed over 
to NMFS.
    Response: The implementing regulations at Sec.  
648.11(l)(5)(vii)(P)(1) require monitoring service providers to 
facilitate fully functioning EM systems by providing to NMFS, upon 
request, ``Assistance in electronic monitoring system operations, 
diagnosing/resolving technical issues, and recovering lost or corrupted 
data.'' The intent of this requirement is administrative. EM

[[Page 75866]]

service providers are best positioned to provide NMFS with information 
or guidance for resolving technical issues relating to NMFS' access to 
and use of the EM providers' systems or systems' data. At this time, 
there is no intention for NMFS to take on the role of troubleshooting 
or resolving an EM provider's or vessel's EM system issues. A workable 
EM system is essential to an effective EM program. An EM service 
provider must be able to provide for the successful provision of data 
on a vessel's behalf to help ensure the vessel is able to comply with 
EM requirements and provide NMFS with all required information.
    Comment 29: CCCFA and Teem Fish requested that we define 
``electronic monitoring data'' to clarify the data retention 
requirements and download requirements so that all parties would be 
aware of the exact attributes, relative amount of data that must be 
retained, and what must be provided to NMFS upon request.
    Response: The term ``electronic monitoring data'' is defined in 
Sec.  648.2 as ``the data that are created in the collection of 
fishery-dependent data by electronic monitoring systems during fishing 
operations, including the video, images, and other sensor data, as well 
as the metadata that provides information (e.g., trip sail date, vessel 
information) about the raw data.'' The metadata do not include the data 
sets that are delivered to the software application using the 
application programming interface (API). An EM provider may choose to 
keep a copy of any submitted reports for their own records, but this is 
not a vessel requirement.
    Comment 30: CCCFA and Teem Fish highlighted that the preamble 
discussion of the audit model incorrectly stated that ``The EM data are 
compared to verify the eVTR-reported catch and discards.'' Each noted 
that the audit program uses EM to verify only discards and not kept 
catch.
    Response: We agree. The preamble discussion is incorrect. The 
definition of electronic monitoring audit model at Sec.  648.2 
correctly states that ``. . . 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.'' The audit model is designed to verify discards, 
not catch.
    Comment 31: Teem Fish and CCCFA commented that we should revise the 
proposed requirement for a pre-trip EM system check because captains 
should not be expected to know the exact amount of data needed for 
their fishing trip and should conduct checks only to ensure system 
functionality and recording availability.
    Response: We agree that it may be difficult for a vessel owner or 
operator to estimate the amount of data storage necessary for each 
trip. In this final rule we have revised the proposed implementing 
regulation text at Sec.  648.11(l)(10)(i)(A)(2) to remove the 
requirement for a vessel owner or operator using EM to determine that 
there is sufficient video storage capacity to retain the recording of 
the entire fishing trip. We will monitor this issue and may propose 
changes in future if it is determined this issue undermines the 
effectiveness of the EM program. It remains the responsibility of 
vessel owners and operators to ensure that the EM system is 
operational, recording, and retaining the recording for the entire 
trip. Because a failure to comply with the requirement to record and 
retain data for entire EM trips may result in an enforcement action, 
vessel operators or owners conducting system checks and actively 
managing EM systems to ensure proper operation for an entire trip 
should be part of a vessel's regular operations notwithstanding our 
revision.
    Comment 32: The Gulf of Maine Research Institute (GMRI) urged us to 
develop VMP guidance that allows for minor modifications without 
requiring the resubmission and approval of VMPs through NMFS. GMRI 
noted that it has found that instituting small changes to improve 
performance, such as slight adjustments to camera angles or discard 
points, can be cumbersome (implying that such changes should be able to 
be more easily incorporated into VMPs without in depth NMFS review and 
approval). GMRI suggested that allowing minor modifications to VMPs 
through NMFS' Vessel Management Application (VMAN) would lead to 
greater efficiencies and save time for industry, NMFS, and service 
providers.
    Response: In this final rule we have revised the regulatory text at 
Sec.  648.11(l)(10)(i)(B). The new text requires that ``Vessels must 
submit vessel monitoring plans and revisions to vessel monitoring plans 
for NMFS review and approval, as instructed by the Regional 
Administrator.'' This language requires submitting substantial VMP 
changes for review and approval, but allows the Regional Administrator 
to identify in our written VMP guidance the scope of changes that would 
require resubmission and approval of the VMP.
    Comment 33: The Council supported the proposal to require EM 
vessels to have their EM turned on for 100-percent of trips, including 
trips west of 71[deg] 30' W. Longitude. The Council highlighted that 
the EIS identified that the proposed EM options minimize the potential 
for bias in the catch estimates because EM operates on 100 percent of 
trips and that proposed monitoring tools are intended to meet or exceed 
the selected monitoring coverage target. NEFS V commented that trips 
that would be excluded from the human ASM requirement should also be 
excluded from EM.
    Response: We agree that vessels using EM should follow their VMP on 
all trips and have approved the measure as proposed for the reasons 
explained in the proposed rule. 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. Vessels that are 
interested in fishing in ways that would be excluded from ASM may 
choose to use ASM, rather than adopting EM, and be excluded from the 
sector monitoring requirement on trips excluded from the human ASM 
requirement.
    Comment 34: CCCFA and GMRI opposed the requirement for monitoring 
service providers to submit EM reports within 10 business days of a 
trip being selected for video review, as proposed at Sec.  
648.11(l)(10)(ii)(B). GMRI explained that it is challenging and 
expensive for EM providers to file a report on a multi-day trip within 
10 days. GMRI requested that the deadline for filing electronic 
monitoring reports be removed from the rule and handled in the 
electronic monitoring reviewer guidance. CCCFA stated that the 10-day 
window makes sense for the audit model, but might not make sense for 
MREM, where trips may be longer than seven days. CCCFA noted that 
additional flexibility in the timing of EM report submission should be 
acceptable because the data in the EM report for MREM vessels is not 
used by sector managers for catch accounting. CCCFA concluded that 
review deadlines should be tied to the amount of video being reviewed.
    Response: We agree that a 10-day window for submitting EM reports 
for MREM trips may not be necessary or practical, for the reasons 
stated by GMRI and CCCFA. However, setting a deadline is necessary for 
the efficient operation of the program. The proposed regulatory text 
stated that EM reports must be submitted to NMFS within 10 business 
days of a trip being selected for video review ``or as otherwise 
instructed by the Regional Administrator.'' This allows flexibility for 
us to change the timing requirement through the EM reviewer guidance 
document. We will continue to work with sectors and monitoring service 
providers to develop an appropriate window. Accordingly,

[[Page 75867]]

we have approved the regulatory requirement as proposed.
    Comment 35: GMRI opposed the portion of the proposed implementing 
regulations at Sec.  648.11(l)(10)(iv), requiring dealers to facilitate 
DSM, that states dealers must make all fish from MREM vessels available 
to dockside monitors for ``the collection of age structures such as 
otoliths or scales.'' GMRI argued that these age structures could be 
collected by NEFOP observers deployed on MREM vessels or by the NMFS 
portside biosampling program. GMRI suggested that making this a 
requirement of dockside monitors would greatly increase the costs of 
the program and require that dockside monitors have additional training 
and qualifications that are not needed to meet the underlying catch 
accounting goal of the program.
    Response: We disagree and have approved the regulatory requirements 
at Sec.  648.11(l)(10)(iv) as proposed. While it is possible that some 
age structures could be obtained through the portside biosampling 
program, the current program is not designed to handle the volume or 
the needs of MREM trips. To prevent duplication of effort, the portside 
biosampling program will exclude landings from MREM trips. However, we 
intend to continue operating the NMFS-based DSM program during fishing 
years 2022 and 2023, and will be working with GMRI to run a pilot study 
to develop requirements for a third-party industry-funded DSM program 
to replace the NMFS-operated DSM program. We intend to test alternative 
protocols to develop efficiencies and potential cost-savings during the 
pilot program. Amendment 23 and its implementing regulations include a 
process for NMFS to revise the at-sea and electronic monitoring 
operations standards, if we identify improvements to the regulations 
implemented by this final rule.
    Comment 36: GMRI opposed the proposed implementing regulation that 
would require Federally permitted Northeast multispecies dealers to 
first offload from MREM vessels all fish below the minimum size 
specified at Sec.  648.83 before other fish that meet the minimum size. 
GMRI noted that offloading the undersized fish last could be more cost 
effective by allowing for a single DSM to witness an offload rather 
than the multiple monitors that are frequently deployed under the 
current program. GMRI suggested that operational details be specified 
in dockside monitoring guidance developed during the pilot project.
    Response: We agree and have revised the regulation at Sec.  
648.11(l)(10)(iv)(B)(1) to remove the requirement for dealers to 
offload fish below the minimum size before other fish. Our intent is to 
allow MREM vessels and dealers to determine the most efficient way to 
offload MREM trips. This will also facilitate having a third party DSM 
program in the future where DSM providers may negotiate the offload 
process with sectors.
    Comment 37: GMRI supported the proposed measure for dealers 
offloading MREM vessels, at Sec.  648.11(l)(10)(iv)(B)(2), to allow 
redfish, haddock, and pollock below the minimum size specified at Sec.  
648.83 to be mixed with the same species of fish in the smallest market 
category. GMRI also requested the provision be expanded to all 
allocated groundfish species landed by MREM vessels. GMRI also 
suggested the proposed regulatory text be further modified to state, 
``fish treated in this manner must be available for a monitor to 
sample.'' rather than the proposed language stating, ``provide the 
dockside monitor access to those at the safe sampling station.''
    Response: We disagree. This final rule revises the regulation at 
Sec.  648.11(l)(10)(iv)(B)(2) to require dealers to separate, by 
species, all fish below the minimum size specified at Sec.  648.83. 
This change removes the option for a dealer to report a mix of fish 
below the minimum size specified at Sec.  648.83 along with fish of the 
smallest market size meeting the minimum size. This change requires 
dealers to separately report all fish below the minimum size, by 
species. Under the current EFP, reporting a mix of fish below the 
minimum size and the smallest market category has been permitted, but 
dealers have stopped using the mixed category in reporting because 
there was an economic benefit to separating fish below the minimum size 
from larger fish. Further, continued work to implement Amendment 23 has 
determined that the catch accounting process required to implement the 
MREM program requires reporting fish below the minimum size separately 
from other categories of fish of the same species to facilitate the 
inclusion of MREM trips in the SBRM program. MREM vessels will not be a 
unique fleet in SBRM, and therefore NMFS must be able to delineate the 
catch of fish below the minimum size on MREM trips to incorporate those 
trips into the existing SBRM fleets. As discussed above, the 
implementing regulations include a process for NMFS to revise the at-
sea and electronic monitoring operations standards, if we identify 
improvements to the regulations implemented by this final rule.
    Comment 38: CCCFA and one fisherman commented that a formal process 
is necessary to compare DSM data, ASM data, and EM data to vessel trip 
report (VTR) data and dealer data to accurately account for catch. The 
fisherman suggested that the audit EM model should be updated to 
include a broad estimate or characterization of the catch by the EM 
video reviewer.
    Response: We agree with the importance of eliminating or minimizing 
to the extent possible the potential for misreporting. Existing data 
protocols will continue, and we plan to implement an automated 
comparison of DSM data and dealer data as part of the MREM program to 
meet the Council's intent for MREM to ensure compliance with the 
requirement to land all allocated groundfish and verify dealer-reported 
catch.
    We disagree that the proposed regulations for the audit model must 
be changed to sufficiently address that potential. We will continue to 
evaluate EM operations to look for opportunities to ensure full and 
accurate reporting. The goal of Amendment 23 is to improve catch 
accounting with two objectives: 1. Determine total catch and effort for 
each sector and the common pool; and 2. Achieve a coverage level 
sufficient to minimize bias to the extent possible while maintaining as 
much flexibility as possible to enhance fleet viability. While it is 
likely that increased monitoring will lead to increased compliance with 
at-sea reporting requirements, in addition to increasing the accuracy 
and precision of catch information, Amendment 23 is not revising the 
sector monitoring program as a whole to be an enforcement tool. NOAA's 
Office of Law Enforcement will continue to enforce all regulations and 
investigate potential violations.
    Comment 39: The Council commented that it is unclear what we 
intended to address with the proposed requirements for dealers to 
clearly mark all containers containing sublegal catch to facilitate 
tracking and to provide settlement documents to the DSM program for any 
allocated groundfish forwarded to secondary dealers. The Council asked 
how far down the supply chain the requirement would apply, and asked us 
to define `secondary dealers.'
    Response: This final rule implements the MREM model. Vessels 
participating in MREM are required to land all fish from allocated 
groundfish stocks, including fish below the minimum sizes specified in 
the regulations at Sec.  648.83. As part of implementing Amendment 23, 
the regulations authorize only

[[Page 75868]]

Federally permitted Northeast dealers to purchase, possess, and/or 
receive undersized fish that are landed by MREM vessels. Non-MREM 
vessels are prohibited from landing fish below the minimum sizes. We 
proposed the requirement for federally permitted dealers to identify, 
mark, or label all containers containing fish below the minimum size to 
provide a means for federally permitted dealers who purchase fish from 
MREM vessels to demonstrate compliance with the minimum size 
requirements by ensuring all small fish can be traced to the landing 
MREM vessel.
    The definition of dealer at Sec.  648.2 refers to the person who 
receives fish, for a commercial purpose (other than solely for 
transport on land), from the owner or operator of a vessel. Any 
federally permitted dealer may only possess undersized fish from 
federally permitted vessels if the fish is from an MREM vessel. The 
reference to ``secondary dealers'' was a shorthand reference to any 
Northeast multispecies federally permitted dealer that receives 
Northeast multispecies from another federally permitted dealer, rather 
than directly from a vessel. For example, if dealer A offloads and 
purchases catch from an MREM vessel, sorts and keeps the haddock, 
pollock, and redfish for sale to retailers or the public, but sells all 
other groundfish species to dealer B, then dealer B is a secondary 
purchaser of the fish landed and purchased by dealer A from the MREM 
vessel. To show that the fish purchased from dealer A is legally 
possessed, federally permitted dealer B must have any container with 
fish below the minimum size labeled or tagged as described in the 
regulations. This container identification allows federally permitted 
dealers to demonstrate compliance and to legally possess undersized 
fish that were originally landed by MREM vessels and sold to a 
federally permitted dealer. Only entities issued a Federal dealer 
permit are subject to the requirement to identify containers with small 
fish. Other entities without a Federal dealer permit for Northeast 
multispecies who purchase from a federally permitted dealer rather than 
purchasing or receiving from MREM vessels, such as wholesalers and 
retailers, are not subject to the labeling requirement. In this final 
rule, we have revised the proposed regulatory text to clarify these 
issues. The permit holder bulletin for Amendment 23 contains guidance 
for dealers.
    Comment 40: The Northeast Sector Services Network (NESSN) commented 
that the EM implementation issues we highlighted in the proposed rule 
for comment were known during the development of Amendment 23. NESSN 
questioned why these items, along with other comments and questions 
raised during the draft EIS public comment period, were ignored by the 
Council.
    Response: We disagree that the Council failed to properly address 
comments on the draft EIS or that the Council ignored implementation 
issues. The process for Amendment 23 was consistent with the policies, 
procedures, and applicable laws that apply to developing actions. The 
Council discussed comments on the draft EIS at its September 2020 
meeting. Many changes and additions were made to the final EIS to 
improve the draft EIS, as discussed in the responses to other comments. 
The Council considered a number of different alternatives prior to 
selecting the preferred alternatives. The Council's Groundfish PDT 
developed, and analyzed in the EIS, the alternatives selected by the 
Council for inclusion in Amendment 23. Implementation questions 
sometimes arise subsequent to selecting preferred alternatives. NMFS is 
responsible for implementing all approved measures, including 
developing systems and processes consistent with existing and future 
systems. Final implementation work by NMFS sometimes uncovers 
unforeseen administrative issues.
    In the proposed rule, we highlighted implementation issues for 
comment by the Council and the public prior to finalizing the 
implementing regulations. NMFS approved Amendment 23 in full, and this 
final rule contains the necessary implementing regulations. As 
discussed in this preamble, the changes from the proposed rule improve 
implementation and are consistent with NMFS' responsibility to carry 
out fishery management plan amendments. The implementation issues 
highlighted in the proposed rule are worth monitoring and evaluating, 
consistent with the Council's intent to evaluate the groundfish sector 
monitoring program changes in Amendment 23 through a future action.
    Comment 41: In its comments, CCCFA asked whether the proposed 
requirement for monitoring service providers to have an availability 
report available and accessible to NMFS electronically 24 hours a day, 
7 days a week, applies to electronic monitoring review.
    Response: The proposed implementing regulation at Sec.  
648.11(h)(5)(vii)(E) states ``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.'' 
This is an existing requirement and the intent is for ASM providers to 
have an availability report that is accessible to NMFS. This 
requirement does not apply to the availability of EM reviewers because 
EM reviewer availability is not dependent on the timing of the fishing 
trip.

Comments on Determining Monitoring Coverage at a Time Certain

    Comment 42: NESSN, NEFS V, and NEFS XI supported having the ASM 
coverage target announced at a time certain before the annual sector 
enrollment deadline. NESSN requested that, in years when Federal 
funding information was not available to set the ASM coverage target 
ahead of the enrollment deadline, NMFS provide estimated industry costs 
prior to the sector enrollment deadline. NEFS V and NEFS XI commented 
that NMFS should always prioritize and complete the funding-based 
determination of the ASM coverage target before the sector enrollment 
deadline.
    Response: We agree the ASM coverage target should be announced at a 
time certain before the annual sector enrollment deadline. As stated 
previously, NMFS will announce the ASM coverage target at least 3 weeks 
before the annual sector enrollment deadline set by NMFS. NMFS will use 
all Federal funding information available at the time it makes its 
determination, including any remaining funding from previous 
appropriations, to determine the ASM coverage target for the following 
fishing year. For example, if Congress has not approved a final budget 
for the fiscal year when NMFS makes its determination of the coverage 
target for the next fishing year, NMFS will use the Federal funding 
status at that time to set the target coverage level for the upcoming 
year. NMFS will adjust the coverage level as necessary and appropriate 
based on final Federal funding and appropriations to NMFS. If Federal 
funding for ASM and EM coverage is insufficient to pay for industry 
costs, the ASM coverage target will be 40 percent of all sector 
groundfish trips.
    Comment 43: CLF commented that the EM video review rate should be 
100 percent during the first year to account for the vessel learning 
curve for EM. NEFS V and NEFX XII commented that the EM video review 
rate should start at 50 percent and reflect the captain's ability to 
estimate discards accurately. EDF commented that human review of

[[Page 75869]]

EM video could be one of the most significant costs of an EM program. 
EDF highlighted that an EM video review rate of 10-20 percent is common 
in EM programs to balance costs and accuracy goals. Further, EDF raised 
concerns about our secondary review of EM video and suggested we 
implement the lowest secondary EM video review rate necessary to 
adequately audit monitoring service providers.
    Response: On June 14, 2022, we notified the Council that the 
fishing year 2022 video review rate for the audit model electronic 
monitoring program is 35 percent of trips for experienced vessels and 
50 percent of trips for newer vessels. Experienced vessels are defined 
as those that participated in the EM program while it operated under an 
exempted fishing permit and took a minimum of one sector trip in the 
operational audit model program in fishing year 2021. Experienced 
vessels typically have multiple years of experience with EM and the 
associated catch handling and reporting requirements. Vessels that are 
newer to the audit model will remain at the 50-percent video review 
rate to allow more opportunities for feedback on their catch handling 
and reporting performance. The fishing year 2022 video review rate for 
MREM vessels is 50 percent of trips, as announced in the Draft Fishing 
Year 2022 Sector Operations Plan, Contract, and Environmental 
Assessment Requirements.
    Our video review rate determination is based on an analysis of past 
performance to provide a reasonable expectation of achieving a CV of 30 
percent, or better, precision level for each groundfish species. Using 
a CV analysis for determining video review rates is suitable because a 
vessel is uncertain of which trips are reviewed, and thus there is not 
the same bias as experienced with ASM. Based on the results of the 
analysis, the minimum review rate required to achieve a 30-percent CV 
for all groundfish species in fishing year 2020 was 35 percent of 
sector trips. While we used a 30-percent CV standard to select video 
review rates for fishing year 2022, we are not required to use this 
standard and may employ a different approach in future fishing years 
based on data collected and evaluated under an operational program. We 
will continue to explore metrics for evaluating and categorizing vessel 
performance to inform video review rates in future fishing years.

Comments on the Review Process for Monitoring Coverage Targets

    Comment 44: CLF, CCCFA, EDF, Oceana, TNC, NEFS V, and NEFS XI 
supported the review process for monitoring coverage targets. CCCFA 
commented that regular Council review is necessary to refine ASM 
coverage targets, determining uncertainty buffers, and address issues 
raised in the proposed rule. Oceana urged that the review take place 
once two full years of data are available, regardless of the coverage 
targets.
    Response: We agree and have approved the measure as proposed for 
the reasons explained in the proposed rule.
    Comment 45: CCCFA commented that NMFS and the Council should 
monitor realized coverage and waivers in the first year to refine the 
program for the second year.
    Response: We monitor achieved coverage and waivers in real time, 
and meet with monitoring providers monthly to improve the likelihood of 
achieving monitoring coverage targets.
    Comment 46: CLF and Oceana commented that Amendment 23 should 
specify the terms of reference for the review. CCCFA supported leaving 
the review metrics out of Amendment 23, but suggested several metrics 
that should be used, including the number of waivers issued, overall 
industry and NMFS costs, and changes in groundfish fleet composition. 
NEFS V suggested the review compare and contrast the groundfish discard 
estimates generated by all components of the approved monitoring 
program (NEFOP, ASM, audit EM, and MREM), and include an analysis of 
costs per trip or sea day between ASM, audit EM, and MREM.
    Response: We disagree that the review metrics should be specified 
in Amendment 23 or the implementing regulations. The Groundfish 
Committee and PDT are currently developing the review metrics through 
the Council's inclusive public process.

Comments on Waivers From Monitoring Requirements

    Comment 47: NEFS V and NEFS XI supported granting waivers when 
funding is not available for NMFS' costs. CCCFA commented in support of 
waivers for logistical challenges, but raised concern that too many 
waivers would undermine the goal of the monitoring program, suggested 
EM as an alternative to issuing waivers from ASM, and urged that NMFS 
track waivers in real time to prevent abuse of waivers to avoid 
monitoring. One fisherman commented in support of waivers, but 
suggested waivers be phased out after the first year. One law student 
stated that waivers should not be issued to EM vessels on the basis of 
cost.
    Response: We agree that monitoring waivers should be considered for 
vessels if NMFS is unable to fund some of its own costs associated with 
the sector monitoring program. If NMFS cannot pay for any of its costs 
to administer the groundfish sector monitoring program, the program 
cannot operate. In this unlikely situation, we would waive all sector 
trips from the requirements for ASM, EM, and DSM until such time as we 
had funding to administer the groundfish sector monitoring program. If 
NMFS waives monitoring requirements due to insufficient funding, as 
part of the review of the changes to the monitoring program, the 
Council and NMFS will consider whether changes to the FMP are necessary 
to ensure effective management if the ASM coverage target is less than 
40 percent. We have approved the measure as proposed for the reasons 
explained in the proposed rule. Monitoring is always dependent on the 
availability of Federal funds, because even under industry-funded 
monitoring programs, NMFS incurs costs associated with administering 
monitoring programs. Therefore, we disagree that waivers should be 
phased out after the first year.
    NMFS may also issue waivers from the human ASM and EM requirements 
for other reasons. These can be administrative waivers, safety waivers, 
and logistical waivers. For example, we may waive the requirement to 
carry an observer or monitor if the facilities on a vessel for housing 
the observer or monitor, or for carrying out observer or monitor 
functions, are so inadequate or unsafe that the health or safety of the 
observer or monitor, or the safe operation of the vessel, would be 
jeopardized. We have a policy where we may waive the human ASM 
requirement for a trip if the observer or monitor fails to arrive at 
the vessel at the confirmed sail time. We also may issue waivers from 
the ASM requirement for logistical reasons, such as a lack of available 
human at-sea monitors or from the EM requirement in limited 
circumstances related to equipment issues. If observer requirements are 
waived, NMFS monitors fishing effort and catch data, and other relevant 
information, to ensure that there are no significant adverse 
environmental consequences and consider alternative fishery management 
measures should such consequences arise.

[[Page 75870]]

Comments on Exclusion From Monitoring Requirements for Certain Vessels 
Under Certain Conditions

    Comment 48: CLF and Oceana opposed removing human ASM coverage for 
trips occurring exclusively west of 71[deg]30' W Longitude. The 
commenters argued that accurate and precise catch information is not 
available to justify the exemption.
    Response: We disagree and have approved the measure as proposed for 
the reasons explained in the proposed rule. 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. This measure may create some degree of uncertainty in discard 
estimates for the affected stocks, as discussed in the biological 
effects section of the EIS, but the effect is expected to be small 
given the low percentage of catch from this area. If negative effects 
are found during the Council's review, this exclusion from monitoring 
could be adjusted in a future action. The Council will consider 
uncertainty from this measure when evaluating the need for a management 
uncertainty buffer for sector sub-ACLs as part of each specification 
action. Amendment 23 includes a review for vessels excluded from the 
ASM requirement that provides a formal process to evaluate the effects 
of excluding some trips from ASM and could support future action to 
address issues, if necessary.
    Comment 49: The Council commented that the proposed measure to 
remove human ASM coverage for trips fishing exclusively west of 
71[deg]30' W Longitude includes a VMS declaration requirement and 
suggested that the declaration of these trips should make it possible 
to create discard strata for these trips, similar to discard strata for 
different gear types. The Council noted this would complicate the 
process for estimating discards, but suggested its consideration for 
addressing discard estimation in the area. The Council also noted that 
Amendment 23 includes a review process for the measures that remove 
monitoring coverage for a portion of the fleet that is intended to 
verify whether the intent of the measures (e.g., that the catch 
composition has little to no groundfish) is being met, and that should 
the review indicate otherwise, the Council could consider addressing 
this in a future action.
    Response: We are not creating a new VMS declaration to identify 
trips excluded from the ASM requirement, consistent with the Regional 
Administrator's authority to streamline sector reporting. Creating VMS 
declarations specific to sector trips excluded from the ASM requirement 
would not provide advance notice to us for the selection or waiving of 
trips and would significantly complicate the VMS system by 
substantially increasing the number of potential VMS codes. Sector 
vessels are required to use the PTNS to notify NMFS at least 48 hours 
in advance of all groundfish trips. We use the PTNS to select trips for 
NEFOP observer coverage as well as ASM coverage. When notifying us of a 
trip in the PTNS, users will be asked whether the trip will fish 
exclusively west of 71[deg]30' W Longitude. We will use the PTNS 
notification to determine trips that are excluded from the sector human 
ASM requirement for the purpose of assigning at-sea monitors. Data from 
the PTNS is available to other systems for efficient collection, 
storage, and transmission; and may be used to identify ASM-excluded 
sector trips in our systems. In addition, we will require sector 
vessels on trips excluded from the ASM requirement to submit a trip-
start hail (TSH) through their VMS to confirm the trip will fish in 
compliance with the ASM waiver granted. Some statistical areas are 
entirely west of 71[deg]30' W Longitude (e.g., 611, 613), and we can 
use VTRs to stratify these. Other statistical areas (e.g., 533, 537, 
539) are bisected by 71[deg]30' W Longitude, which prevents us from 
using the VTR for stratification and catch accounting. Therefore, a TSH 
is necessary for NMFS to stratify the trip and assign discards for 
catch accounting. It also provides the added benefit of reaffirming the 
operator's PTNS notification to ensure they are fishing in the manner 
for which they notified.
    The TSH, in combination with the VTR, will allow identification of 
trips excluded from the ASM requirement to support stratification of 
these trips. Developing discard rates for these new strata will be 
challenging because there will be limited NEFOP coverage of ASM-
excluded trips to form the basis of the discard rates. Stratification 
is necessary for the affected stocks to prevent catch on monitored 
trips from overwhelming catch from unmonitored trips. We agree that the 
review will provide a formal process to evaluate the effects of 
excluding some trips from ASM and could support future action to 
address issues, if necessary. As discussed in the biological effects 
section of the EIS, this will create additional uncertainty in discard 
estimates for the affected stocks that will be considered when 
evaluating the need for a management uncertainty buffer for sector sub-
ACLs as part of each specification action.
    Comment 50: NEFS 5 recommended simplifying this exemption by 
including the whole of statistical areas 533 and 539 to make it easier 
for vessels to notify NMFS of their intent of where they expect to fish 
with respect to this exemption and to facilitate the monitoring of 
compliance with is exemption by sector vessels.
    Response: We disagree and have approved the measure as proposed for 
the reasons explained in the proposed rule. NMFS may only approve, 
partially approve, or disapprove Amendment 23. The ability to partially 
disapprove Amendment 23 is limited and does not allow us to approve 
only pieces of individual alternatives or to select an alternative not 
selected by the Council. Thus, we cannot expand this exemption to the 
whole of statistical areas 533 and 539 nor limit the geographic area of 
this exemption to align with stock areas.

Comments on Review Process for Vessels Excluded From Commercial 
Groundfish Monitoring Program Requirements

    Comment 51: CLF commented in support of reviewing all exclusions 
from that ASM requirement for sector groundfish trips.
    Response: We agree and have approved this provision for the reasons 
given in the proposed rule.

Comments on Increased Monitoring Coverage if Federal Funds Are 
Available

    Comment 52: CCCFA supported allowing us to increase ASM coverage in 
year 5 and beyond, when Federal funding is available to support NMFS' 
and industry costs.
    Response: We agree and have approved this provision for the reasons 
given in the proposed rule.

Comments on Elimination of Management Uncertainty Buffer for Sector 
ACLs

    Comment 53: The Council commented on the issue of removing the 
uncertainty buffer for all stocks when the ASM coverage target is 100 
percent, while trips fishing exclusively west of 71[deg] 30' W 
Longitude are excluded from the ASM requirement. The Council noted that 
while eliminating ASM coverage in this geographic area may increase the 
uncertainty about catches of these stocks, it would have a small effect 
on the overall catch estimate. The Council highlighted that, for 
southern New England yellowtail flounder and winter flounder, southern 
windowpane flounder, and ocean pout, catch west of

[[Page 75871]]

71[deg] 30' W Longitude has been over 25 percent of total catch of 
those stocks in some recent years, but that total catch of these stocks 
by sector vessels was roughly half or less of the sub-ACL in fishing 
year 2020. The Council argued that this means that the portion of the 
ACL caught west of the boundary was at most 12.5 percent of the sub-ACL 
and pointed out that these trips are still subject to NEFOP coverage. 
The Council concluded that removing the uncertainty buffer is not 
likely to increase the risk of exceeding the ABC for these stocks, 
unless the catches increase significantly from recent years. The 
Council also noted that Amendment 23 includes a review process for the 
measures that remove monitoring coverage for a portion of the fleet 
that is intended to verify if the intent of the measures (e.g., that 
the catch composition has little to no groundfish) is still being met, 
and that should the review indicate otherwise, the Council could 
consider addressing this in a future action. The Council reiterated 
that this alternative was selected to minimize the costs of increased 
monitoring overall, and balanced monitoring costs with limited 
potential impacts on total groundfish catch.
    Response: As discussed above in responses to comments on excluding 
certain vessels from the ASM requirements under certain conditions, 
NMFS data systems will allow identification of trips excluded from the 
ASM requirement to support stratification of these trips, but 
developing discard rates for these new strata will be challenging. This 
will create additional uncertainty in discard estimates for the 
affected stocks that the Council will consider when evaluating the need 
for a management uncertainty buffer for sector sub-ACLs as part of each 
specification action.
    Comment 54: CLF and Oceana opposed the provision allowing us to 
revise the management uncertainty buffer for the sector portion of the 
ACL for each allocated groundfish stock to be set to zero in years in 
which the ASM coverage target is 100 percent. CLF and Oceana argued 
that uncertainty would remain due to unobserved fishing and other 
factors. CLF also argued that increasing monitoring coverage to 100 
percent only addresses three of the five elements included in the 
management uncertainty buffer (monitoring adequacy, precision, and 
enforceability), and suggested that issues raised in the proposed rule 
demonstrate that management uncertainty could never be reduced to zero. 
NEFS V and XI commented that retaining the management uncertainty 
buffers would allow us to focus on developing a solution to the buffer 
concern for vessels exempted from ASM and remove the need to address 
changes to sector ACE carryover. NESSN, NEFS V, and NEFS XI commented 
that the increased allocations resulting from removing the management 
uncertainty buffer would not be a meaningful increase and would not 
offset the significant additional costs of increased monitoring.
    CLF, TNC, and two members of the public commented that we should 
remove the management uncertainty buffers only when the realized 
monitoring coverage is 100 percent, rather than when the ASM coverage 
target is 100 percent. Further, they requested we explain the process 
and criteria we would use to adjust the management uncertainty buffer 
if realized coverage rates are lower than the target coverage rates. 
CCCFA encouraged NMFS to eliminate the uncertainty buffer only once 
certain criteria are met, including over 90 percent of trips have an 
observer or working EM cameras.
    Response: We disagree that the uncertainty buffer should only be 
removed when the fishery achieves 100-percent monitoring coverage 
because that determination cannot be made until the end of the fishing 
year, thus eliminating the benefit to the fishery of removing the 
buffers to allow additional harvest. Further information may also show 
a level of coverage below 100 percent that still allows for removal of 
the uncertainty buffer. We are actively increasing monitoring coverage 
to achieve high levels of coverage in fishing year 2022, and we are not 
removing the uncertainty buffer for fishing year 2022 because the ASM 
coverage target will be 80 percent of trips.
    We agree that removing uncertainty from catch data is important to 
improving management of the fishery. However, this measure does not 
remove the uncertainty buffer when it is not warranted. This provision 
allows for the removal of the uncertainty buffer when the ASM coverage 
target is 100 percent and when available information indicates this is 
appropriate and warranted. Achieving an ASM coverage target of 100 
percent will minimize bias in fishery-dependent data. As discussed in 
the proposed rule, the management uncertainty buffer accounts for the 
possibility that management measures will result in a level of catch 
greater than expected. 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 subcomponents for any stocks, which means 
a certain level of uncertainty buffer will continue to exist for each 
ACL and sub-ACL. The process by which the Council evaluates and sets 
management uncertainty buffers for each fishery component in 
specification actions remains unchanged, and the Council could adjust 
management uncertainty buffers in future actions. The Council is still 
required to review whether the removal is warranted in each action that 
sets specifications, which may include consideration of concerns 
identified by the commenters. As discussed below (see Changes from 
Proposed Rule), we have revised the proposed implementing regulations 
to clarify the uncertainty buffer will not default to zero if the 
Council specifies a different management uncertainty buffer is 
warranted to help ensure catch does not exceed a sector sub-annual 
catch limit.
    We agree that the increased revenues associated with removing the 
uncertainty buffers will not fund industry costs of monitoring because 
the buffers may only be removed in years where the ASM coverage target 
is 100 percent. In any year that industry pays a portion of its at-sea 
monitoring costs, the ASM coverage target will be set at 40 percent. 
Therefore, in any year that industry pays a portion of its at-sea 
monitoring costs, the buffers will remain in place. However, combined 
with options to use EM, capping the ASM coverage target at 40 percent 
when Federal funds do not subsidize industry costs, and incorporating 
SBRM observer coverage, Amendment 23 reduces the potential increase in 
costs to industry through a range of considerations and factors.
    Comment 55: CCCFA suggested the Council and NMFS should reconsider 
the removal of the uncertainty buffer for groundfish trips occurring in 
statistical areas 533, 537, and 539, because these areas will have ASM 
coverage east of 71[deg] 30' W Longitude, but no ASM coverage west of 
the line.
    Response: We disagree. Uncertainty buffers are not applied at the 
trip level, and this was not contemplated or considered in this action. 
As discussed above, a certain level of uncertainty buffer will continue 
to exist for each ACL and the process by which the Council evaluates 
and sets management uncertainty buffers remains unchanged. The Council 
is still required to review whether the removal is warranted in each 
action that sets specifications and the Council could adjust management 
uncertainty buffers in future actions, if it is deemed necessary. 
Further, NMFS may only approve, partially approve, or

[[Page 75872]]

disapprove Amendment 23. The ability to partially disapprove Amendment 
23 is limited and does not allow us to approve only pieces of 
individual alternatives or to select an alternative not selected by the 
Council. Thus, we could not approve the measure allowing removal of the 
uncertainty buffer and disapprove that measure only for trips occurring 
in certain areas because the Council did not choose such a measure.

Comments on Sector Reporting Streamlining

    Comment 56: One member of the public commented that Amendment 23's 
process for the Regional Administrator to make changes to the sector 
monitoring and reporting requirements in the regulations does not 
comply with the requirements set forth by the APA. The commenter 
expressed concern that Amendment 23 would allow for the Regional 
Administrator to modify the sector monitoring and reporting 
requirements without specifying exactly how the objective of preventing 
overfishing would be met. TNC, NEFS V, and NEFS XI commented in support 
of authority for the Regional Administrator to streamline sector 
reporting requirements. NEFS V and XI also noted in their comments that 
a sector has a reporting responsibility to its members, as well as to 
NMFS; highlighted that comparing NMFS data sets to sector data sets is 
an effective data reconciliation process; and stated that having sector 
managers searching for data errors blindly would not streamline the 
process.
    Response: We disagree that Amendment 23 does not comply with the 
APA. Any future changes to the sector monitoring and reporting 
requirements in the regulations would be made consistent with the 
requirements of the APA. In the proposed rule, we solicited comment 
regarding using the Regional Administrator's authority to require audit 
model vessels to report discards at the sub-trip level, rather than the 
haul level. In addition, as discussed above, we are not creating a new 
VMS declaration to identify trips excluded from the ASM requirement, 
consistent with the Regional Administrator's authority.
    We agree that the Regional Administrator should use the authority 
to revise sector monitoring and reporting requirements to streamline 
reporting, under section 305(d) of the Magnuson-Stevens Act, if 
alternative methods can be found to satisfy the requirements. As 
discussed in the proposed rule, any changes to streamline reporting are 
limited to meeting the primary goal of the sector monitoring program to 
verify area fished, as well as catch and discards by species and gear 
type, in the most cost-effective means practicable.
    Comment 57: CCCFA, Teem Fish, NEFS V, NEFS XI, and the Council 
supported our proposal to allow vessels using the audit EM model to 
continue reporting discards at the sub-trip level, rather than the haul 
level, using the Regional Administrator's authority to modify sector 
monitoring requirements to streamline the sector reporting process. The 
Council also recommended that we approve the ``electronic monitoring 
audit model'' definition language requiring haul-level eVTR reporting 
so that if it is determined that haul-level information is needed in 
the future, the requirement can be implemented.
    Response: We agree that sub-trip level reporting is sufficient for 
audit model EM vessels. We disagree that the electronic monitoring 
audit model definition should specify that vessels must submit eVTRs at 
the haul level. Using the authority granted to the Regional 
Administrator to streamline sector reporting requirements requires we 
comply with the Administrative Procedure Act when making changes. Thus, 
leaving the requirement for haul-level eVTRs in the regulatory 
definition would not offer an advantage in restoring the requirement in 
future, if it that were deemed necessary. Further, having the 
requirement codified in the regulations, but not in effect, could 
create confusion. Accordingly, we have modified the proposed regulatory 
definition of electronic monitoring audit model to eliminate the 
requirement for audit EM vessels to report haul-level eVTRs in this 
final rule.

Comments On Additions to the List Of Framework Items

    Comment 58: CLF commented in support of approving additional 
monitoring tools through a framework if the tools can achieve 100 
percent monitoring coverage. CCCFA supported adding the Amendment 23 
measures to the list of items that can be addressed through a framework 
if the changes to the measures are preceded by the Council framework 
review process.
    Response: We agree and have approved the measure as proposed for 
the reasons explained in the proposed rule.
Changes From the Proposed Action
    In this final rule, we have made a number of changes to the 
proposed implementing regulations. Some of the changes correct errors, 
address inconsistencies, or clarify the proposed regulatory text. Other 
changes to the proposed implementing regulations are in response to 
further consideration of implementation needs and public comments. In 
this final rule, we make the following changes to the proposed 
implementing regulations:
     Revise the proposed definition at Sec.  648.2 for 
electronic monitoring audit model to remove the requirement to report 
discards at the haul level. This change from the proposed regulatory 
text streamlines the eVTR reporting requirement for EM audit model 
vessels and is consistent with how sectors are operating under the 
current operational audit model program. During development of this 
model under an exempted fishing permit, we determined trip-level 
reporting was sufficient and reduced the burden on vessels.
     Revise proposed text at Sec.  648.11(h)(5)(vii)(I) to 
apply to all EM staff rather than only video reviewers. This provides 
NMFS with the opportunity to request a copy of valid contracts between 
monitoring service providers and all their staff to ensure a service 
provider meets all performance requirements, rather than limiting that 
opportunity to only video reviewers.
     Revise proposed text at Sec.  648.11(h)(7)(v) to add video 
reviewers to the list of monitoring provider staff whose 
decertification may be considered by NMFS when determining whether to 
remove a monitoring service provider from the list of approved service 
providers.
     Revise proposed text at Sec.  648.11(l)(2) to remove 
vessel monitoring plans from the list of items required to be approved 
as part of sector operations plans to be consistent with current 
practice and other proposed regulatory text. The proposed text was 
inconsistent with current practice and the other proposed EM 
requirements.
     Revise proposed text at Sec.  648.11(l)(4) to clarify EM 
vessels cannot leave the dock without a functioning EM system, unless 
granted a waiver. The proposed text was inconsistent with current 
practice and the other proposed EM requirements.
     Revise proposed text at Sec.  648.11(l)(5)(i) to clarify 
that NMFS will determine, and announce, EM video review rates 
separately from the ASM coverage target.
     Revise the proposed text at Sec.  648.11(l)(10)(i)(A)(2) 
to remove the proposed requirement for vessel owners/operators to 
determine during their pre-trip electronic monitoring system check that 
the system has sufficient storage space available for the

[[Page 75873]]

entire trip. Rather, vessels must perform a pre-trip system check to 
ensure the electronic monitoring system is operational prior to 
departing on a fishing trip. This change is being made in response to 
comments, as discussed above (see Comments and Responses above).
     Revise proposed text at Sec.  648.11(l)(10)(i)(B) to 
clarify the proposed vessel monitoring plan approval process. The 
revised regulation clarifies that all changes to a VMP must be 
submitted to NMFS for review.
     Revise proposed text at Sec.  648.11(l)(10)(i)(B)(7) to 
correct the internal citation to Sec.  648.11(l)(10)(i)(A) and (B) to 
encompass electronic monitoring system requirements and vessel 
monitoring plan requirements for EM vessels.
     Revise proposed text at Sec.  648.11(l)(10)(i)(C) to 
correct internal regulatory citations to regulations moved as part of 
this final rule.
     Added new text at Sec.  648.11(l)(10)(i)(D)(1) to require 
a dockside monitor to be present before the vessel operator or crew 
begins offloading an MREM vessel, unless NMFS has issued the trip a 
waiver from the DSM program. This requirement was listed in the 
preamble of the proposed rule, but was inadvertently left out of the 
proposed regulations.
     Added new text at Sec.  648.11(l)(10)(i)(D)(2) to require 
a vessel operator and crew to allow the dockside monitor access to the 
fish hold immediately following the offload in order to confirm all 
allocated groundfish were offloaded unless NMFS has issued the trip a 
waiver from the dockside monitoring program. This requirement was 
listed in the preamble of the proposed rule, but was inadvertently left 
out of the proposed regulations.
     Revise proposed text at Sec.  648.11(l)(10)(iv)(B)(1) to 
remove the proposed requirement that dealers offload fish below the 
minimum size from maximized retention electronic monitoring vessels 
before offloading other fish. This change is being made in response to 
comments (see Comments and Responses above) to allow industry members 
to determine the most efficient way to offload.
     Revise the proposed text at Sec.  648.11(l)(10)(iv)(B)(2) 
to remove the proposed provision that allows dealers to report a mix of 
fish below the minimum size and the smallest market category of fish 
meeting the minimum size rather than reporting all fish below the 
minimum size as a separate market category. Elimination of this mixed 
reporting category is necessary to implement MREM as an operational 
program in our existing data systems. Further, dealers participating in 
the MREM EFP have opted to separate fish below the minimum size for 
market reasons.
     Revise the proposed prohibition at Sec.  648.14(e)(3) to 
correct grammar.
     Revise the proposed prohibition at Sec.  648.14(k)(2)(vii) 
to clarify that it is unlawful for any person to fish in a manner 
inconsistent with the requirements for vessels granted a waiver from 
the at-sea monitoring requirement on trips that are excluded from the 
at-sea monitoring requirement. This change is consistent with the 
Council's intent to exclude from the human ASM requirement only trips 
fishing in compliance with all requirements and is designed to help 
facilitate enforcement.
     Move the prohibition proposed to be codified at Sec.  
648.14(k)(2)(vii) to Sec.  648.14(k)(14)(xvi) to keep prohibitions 
related to the sector program grouped together.
     Revise proposed text at Sec.  648.14(k)(3)(iii) to remove 
ocean pout from the list of species dealers may receive from MREM 
vessels. This change is consistent with the Council's intent for MREM 
vessels to discard zero possession stocks for which possession is 
prohibited (i.e., zero-possession stocks) and is designed to help 
facilitate enforcement.
     Revise proposed text at Sec.  648.14(k)(3)(v) to correct a 
typographical error.
     Added new text at Sec.  648.14(k)(14)(xiv) and (xv) to add 
prohibitions complementing the new Sec.  648.11(l)(10)(i)(D)(1) and 
(2). Those requirements were listed in the preamble of the proposed 
rule, but were inadvertently left out of the proposed regulations.
     Revise the proposed text at Sec.  648.90(a)(4)(i)(B) to 
clarify that the management uncertainty buffer for the sector portion 
of the ACL for each allocated groundfish stock will default to zero in 
years in which the at-sea monitoring coverage target is 100 percent 
unless the Council determines a different management uncertainty buffer 
is warranted to help ensure catch does not exceed a sector sub-annual 
catch limit. This change clarifies the interaction between the default 
management uncertainty buffer and the Council process for setting 
management uncertainty buffers.

Classification

    NMFS is issuing this rule pursuant to sections 304(b)(3) 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 Northeast 
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. The 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Northeast Multispecies FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    Because this rule relieves a restriction by allowing sector 
groundfish trips fishing exclusively west of 71[deg]30' W Longitude to 
fish without carrying an at-sea monitor, that measure is not subject to 
the 30-day delayed effectiveness requirement of the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d)(1). Currently, all 
groundfish trips by sector vessels are subject to the at-sea monitoring 
requirement and restricted from fishing without an at-sea monitor 
without a waiver, except those exclusively fishing using gillnets with 
a mesh size of 10 inches (25.4 cm) or greater in either the Inshore 
Georges Bank Stock Area, as defined at Sec.  648.10(k)(3)(ii), and/or 
the Southern New England Broad Stock Area, as defined at Sec.  
648.10(k)(3)(iv). As explained in the EIS, monitoring places burdens of 
fishing vessels. The burdens include logistical planning; changing 
vessel operations to ensure safety of a human at-sea monitor; 
physically accommodating and feeding a human at-sea monitor; and the 
cost of hiring an at-sea monitor. Implementing the geographic exclusion 
from the at-sea monitoring program at Sec.  648.11(l)(5)(iii) relieves 
the restriction against fishing without an at-sea monitor, thereby 
allowing vessels fishing exclusively west of 71[deg]30' W Longitude to 
fish without hiring a human at-sea monitor, and thus relieves vessels 
of the at-sea monitoring burdens. Fishing behavior in recent years 
provides insight into the benefit of relieving this restriction. In 
fishing years 2016 through 2021, the number of groundfish vessels that 
would have benefited from relieving this restriction ranged from 19 to 
30 vessels annually. During those years, 181 to 488 trips per year 
would have been excluded from the human ASM requirement. As of July 27, 
2022, 9 vessels would have been excluded from

[[Page 75874]]

the human ASM requirement on 51 groundfish trips during the current 
fishing year that began on May 1, 2022. Therefore, there is good cause 
under 5 U.S.C. 553(d)(1) to establish an effective date less than 30 
days after date of publication to exclude sector groundfish trips 
fishing exclusively west of 71[deg]30' W Longitude from the requirement 
to carry an at-sea monitor.
    The New England Fishery Management Council prepared a final EIS for 
Amendment 23 to the Northeast Multispecies FMP. The FEIS was filed with 
the Environmental Protection Agency on January 10, 2022; a notice of 
availability was published on January 21, 2022 (87 FR 3298). In 
approving Amendment 23 on April 12, 2022, NMFS issued a record of 
decision (ROD) identifying the selected alternatives. A copy of the ROD 
is available from NMFS (see ADDRESSES). A brief summary of the impacts 
follows.
    A human ASM target coverage of up to 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 increased human ASM coverage target results 
in reduced groundfish fishing activity, then it may provide some minor 
short-term benefits to habitat. Over the long term, if achieving higher 
human ASM 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 at-sea monitoring 
coverage target. A target at-sea monitoring coverage rate of up to 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 were available to support industry costs, 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 EM in 
lieu of human at-sea monitors. 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., more than 20 days per year). The human ASM coverage target for 
fishing year 2022 is 80 percent of sector groundfish trips subject to 
the monitoring requirement. NMFS will continue to reimburse sectors for 
100 percent of their ASM and EM costs in fishing year 2022 through the 
Atlantic States Marine Fisheries Commission. In addition, increased 
monitoring coverage may be seen as overly burdensome by fishing 
communities. However, increased monitoring coverage, up to 100-percent 
monitoring coverage, improves the enforceability of the FMP and reduces 
the risk of non-compliance, which should improve the fairness and 
equitability of management measures. In the short term, economic 
impacts of increased 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 rule has been determined to be not significant for purposes of 
Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), 
including all the analyses in the final EIS, the IRFA summary in the 
proposed rule, a summary of the significant issues raised by the public 
comments in response to the IRFA, our responses to those comments, and 
the information below. A copy of the IRFA, contained in the 
Environmental Impact Statement, is available from the Council (see 
ADDRESSES). A description of the action, statement of the necessity for 
the action, and the objectives of this action, are contained in 
Amendment 23, the IRFA, 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 rule. A summary of the 
analysis follows.

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

    We received several comments expressing concern about the economic 
effects of this action and we have summarized these comments in the 
comments and responses section of this rule. None of these comments 
were directly related to the IRFA, or provided information that changed 
the conclusions of the IRFA. The Chief Counsel for the Office of 
Advocacy of the Small Business Administration (SBA) did not file any 
comments. We made no changes to the proposed rule measures in response 
to those comments.

Description and Estimate of the Number of Small Entities to Which This 
Rule Would Apply

    This action would regulate all commercial fishing businesses issued 
a Federal limited access Northeast multispecies vessel permit and/or a 
Northeast 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 structure, and for RFA 
purposes, it is the ownership entity that ultimately would be regulated 
by the 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 (North American Industry Classification 
System (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

[[Page 75875]]

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 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.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    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.
    The implementing regulations in this final rule:
     Replace the current process for calculating an annual ASM 
coverage target with a fixed monitoring coverage target as a percentage 
of trips, dependent on Federal funding.
     Approve additional EM technologies as an alternative to 
human at-sea monitors;
     Exclude from the monitoring requirement all trips in 
geographic areas with expected 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, if warranted, 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.
    Amendment 23 examined a range of options that adjust the current 
monitoring program to improve accounting and accuracy of collected 
catch data. The range included variable and fixed target coverage 
levels (25, 50, 75, and 100 percent) based on catch or trips, human 
ASM, two types of EM, and flexibility to allow sectors to choose the 
tools used to meet the sector monitoring requirement. Ultimately, the 
Council chose a fixed coverage target as high as could be achieved at 
zero cost to industry to reliably estimate catch and to form the basis 
of a future analysis to further evaluate the fishery and its monitoring 
program. In years that the ASM coverage target is set at 100 percent, 
the management uncertainty buffer will default to zero for the sector 
sub-ACL for allocated stocks, and will remain at zero if warranted, 
thereby increasing sector quotas and potential revenues. The Council 
also set a new lower cap on the coverage target that will be set when 
industry is paying for monitoring, as well as approving two EM models 
that sectors could choose to use to provide for sustained participation 
and minimize adverse economic impacts on communities to the extent 
practicable. Amendment 23 excludes sector fishing trips fished in their 
entirety west of 71[deg] 30' W Longitude from the ASM requirement.
    The effects of this action depend on available Federal funding to 
defray industry costs and the number of vessels that use EM in lieu of 
human at-sea monitors. EM is predicted to be substantially more cost 
effective, particularly for the subset of most active vessels in the 
groundfish fishery (those fishing more than 30-50 days per year). 
However, combined with options to use EM, capping the ASM coverage 
target at 40 percent when Federal funds do not subsidize industry 
costs, and incorporating SBRM observer coverage, Amendment 23 reduces 
the potential increase in costs to industry through a range of 
considerations and factors.
    If industry costs are fully subsidized and the ASM coverage target 
is 100 percent, the fishery is predicted to generate approximately $5 
million in additional revenues compared to the status quo (estimated 
$51.3 million operational profit for the fleet in 2018), primarily due 
to the removal of the management uncertainty buffer from the sector 
quotas. These additional revenues are predicted to increase profits by 
approximately $4.9 million because the industry would not pay for its 
monitoring costs. At all coverage levels less than 100 percent, the 
management uncertainty buffers are not removed.
    This action implements a minimum ASM coverage target of 40 percent, 
which applies in years 5 and later, or in years 1-4 if Federal funds 
cannot fully subsidize industry costs for a higher coverage target and 
industry is required to pay for its monitoring costs. Under the 
scenario where the coverage target is 40 percent and industry is 
required to pay for its full monitoring costs because of an absence of 
Federal funding to defray any industry costs, the fleet is predicted to 
generate between $1.5-2.0 million less profit than under the status 
quo, or about a 4-percent reduction.
    Vessels that opt to make fishing trips exclusively west of 71[deg] 
30' W Longitude are excluded from the ASM requirement. This may 
increase profits if the minimum coverage target of 40 percent is 
implemented due to a lack of Federal subsidies for industry monitoring 
costs. Similarly, when the ASM coverage target is set higher than 40 
percent, vessels opting to fish in this geographic area will reduce 
monitoring costs subsidized by Federal funds, allowing Federal funding 
to cover monitoring for a longer duration or at a higher coverage 
target.

Description of the Projected Reporting, Record-Keeping, and Other 
Compliance Requirements of This Rule

    A description of the projected reporting, recordkeeping, and other 
compliance requirements of this action, including an estimate of the 
classes of small entities that will be subject to the requirements is 
contained in the Information Collection List for 0648-0800 available on 
the Office of Information and Regulatory Affairs (OIRA) website at 
reginfo.gov and summarized below.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides. The agency shall explain the actions a small entity is required 
to take to comply with a rule or group of rules. As part of this 
rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Greater Atlantic Regional Fisheries 
Office (see ADDRESSES), and the guide, i.e., permit holder letter, will 
be sent to all holders of permits for the fishery. The guide and this 
final rule will be available upon request.
    This final rule contains a new temporary collection-of-information 
requirement subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA) control number 
0648-0800. This temporary information collection was created due to 
timing

[[Page 75876]]

conflicts with OMB Control Number 0648-0605, Northeast Multispecies 
Amendment 16, which is currently up for renewal. Once 0648-0605 is 
renewed and this final rule temporary collection is approved, NOAA will 
submit a request to merge this temporary collection (0648-0800) into 
0648-0605. This rule creates two new requirements related to the new 
maximized retention electronic monitoring model. The first requirement 
is for maximized retention electronic monitoring vessels to have 
dockside monitoring and includes notifications, database requirements, 
and the costs of monitoring. The second requirement is for monitoring 
and reporting service providers to apply to NMFS for approval to 
provide dockside monitoring service to groundfish sectors, including 
responding to any denial of an application. The estimated average 
public reporting burden for the requirements, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information is presented in the table below.

------------------------------------------------------------------------
          Requirement              Responses       Hours       Dollars
------------------------------------------------------------------------
Dockside Monitoring                     49,200       16,236    2,805,876
 Notifications, Database
 Requirements, and Monitoring
 Costs........................
Service Provider Application                 4           40           12
 and Response to Denial.......
                               -----------------------------------------
    Total.....................          49,204       16,276    2,805,888
------------------------------------------------------------------------

    We invite the general public and other Federal agencies to comment 
on proposed and continuing information collections, which helps us 
assess the impact of our information collection requirements and 
minimize the public's reporting burden. Written comments and 
recommendations for this information collection should be submitted on 
the following website: www.reginfo.gov/public/do/PRAMain. Find this 
particular information collection by selecting ``Currently under 
Review'' or by using the search function and entering the title of the 
collection.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person by 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 648Fisheries, Fishing, Reporting 
and recordkeeping requirements.

    Dated: November 29, 2022.
Samuel D. Rauch, III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
648 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. Effective January 9, 2023, amend Sec.  648.2 by:
0
a. Revising the definition for ``Electronic monitoring'';
0
b. Adding the definitions for ``Electronic monitoring audit model'', 
``Electronic monitoring maximized retention model'', and ``Electronic 
monitoring provider staff'' in alphabetical order;
0
c. Revising the definition for ``Observer or monitor'';
0
d. Removing the definition for ``Observer/sea sampler'';
0
e. Republishing in alphabetical order the definition of ``Ocean 
quahog'';
0
f. Revising the definition for ``Slippage in the Atlantic herring 
fishery'' and placing the definition into alphabetical order;
0
g. Revising the definition for ``Slip(s) or slipping catch in the 
Atlantic herring fishery''; and
0
h. Revising the definition for ``Video reviewer''.
    The revisions, additions, and republication 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 
Sec.  648.11 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; fish must be handled in view of 
cameras; allowed discarding must occur at controlled points in view of 
cameras; species identification and length must be collected for 
regulated species and ocean pout discards for catch estimation; 
discards are reported at the sub-trip level; 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

[[Page 75877]]

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 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. Effective January 9, 2023, amend Sec.  648.10 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 
Northeast 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 research set-aside (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) Vessel trip report (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. Effective December 15, 2022, amend Sec.  648.11 by adding reserved 
paragraph (l)(4) and paragraph (l)(5) to read as follows:


Sec.  648.11  Monitoring coverage.

* * * * *
    (l) * * *
    (4) [Reserved]
    (5) Sector monitoring coverage levels. (i) through (ii) [Reserved]
    (iii) Geographic exclusion from the at-sea monitoring program. 
Vessels fishing exclusively west of 71[deg]30' W 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 paragraph (l)(5)(iii) 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[deg]30' W Longitude. Vessels using 
electronic monitoring to satisfy the sector monitoring requirement in 
this section must have their system turned on and comply with their 
vessel monitoring plan on all trips, including trips fishing 
exclusively west of 71[deg]30' W Longitude.
* * * * *

0
5. Effective January 9, 2023, further amend Sec.  648.11 by:
0
a. Revising paragraphs (a), (b), (d), (h)(1), (h)(3)(vii), and 
(h)(3)(ix) and (x);
0
b. Adding introductory text to paragraph (h)(5);
0
c. Revising paragraphs (h)(5)(i) through (iv), (vi), and (vii), (h)(7), 
(i) heading, (i)(1) and (2), (i)(3)(i), (i)(4)(ii), and (i)(5) and (6);
0
d. Adding paragraph (i)(7); and
0
e. Revising paragraphs (j), (k)(4)(i) and (ii), (l), (m)(1)(i) 
introductory text, (m)(1)(v), (m)(2)(iii)(A), (m)(4)(i), (m)(6) 
introductory text, and (n)(2) introductory text.
    The revisions and additions read as follows:


Sec.  648.11   Monitoring coverage.

    (a) Coverage. The Regional Administrator may request any vessel 
holding a permit for Atlantic sea scallops, Northeast 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

[[Page 75878]]

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 paragraphs (h)(3)(vii)(A) and (B) of this section 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 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 Northeast 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

[[Page 75879]]

acceptable, the observer would be certified.
    (B) For the purpose of coverage to meet SBRM requirements in Sec.  
648.18, 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 in this 
section, 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 U.S. 
Coast Guard (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 
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 electronic monitoring provider staff 
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 electronic 
monitoring provider staff.
    (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.

[[Page 75880]]

    (L) Data system. If contracted to meet the requirements of 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; and
    (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 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, video reviewer, 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. Observers are deemed to have satisfied the 
basic minimum eligibility requirements if they meet the 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

[[Page 75881]]

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, 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) NE multispecies observer coverage--(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 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/

[[Page 75882]]

electronic programs 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 electronic monitoring system 
on board, unless NMFS issues a waiver.
    (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 at-sea monitoring (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 New England 
Fishery Management 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. NMFS will determine, and announce, EM video review rates 
separately from the ASM coverage target. NMFS may evaluate and modify 
video review rates on a regular basis.
    (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 Georges Bank (GB) Stock Area, as defined at Sec.  
648.10(k)(3)(ii), and/or the Southern New England (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 paragraph (l)(5)(i) 
of this section 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 Gulf of Maine (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 in this section 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

[[Page 75883]]

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[deg]30' W 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 paragraph (l)(5)(iii) 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[deg]30' W Longitude. Vessels using 
electronic monitoring to satisfy the sector monitoring requirement in 
this section must have their system turned on and comply with their 
vessel monitoring plan on all trips, including trips fishing 
exclusively west of 71[deg]30' W Longitude.
    (iv) Waivers. In addition to the safety waivers in paragraph (c) of 
this section, 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 in this section 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 paragraph (l) of this section. 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 New 
England Fishery Management Council review of the exclusions from the 
at-sea monitoring program in paragraphs (l)(5)(ii) and (iii) of this 
section will evaluate whether the exclusions continue to meet the 
intent of the New England Fishery Management 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 New England 
Fishery Management 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 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 in this section 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 the amount of video storage space available to record 
the 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 in 
this section. NMFS will approve a vessel monitoring plan that 
sufficiently describes how the electronic monitoring system is 
configured on a particular vessel applying for approval and how the 
fishing and monitoring operations will be conducted in a manner to 
effectively monitor catch in accordance with the EM program 
requirements and standards in this section. Vessels must submit vessel 
monitoring plans and revisions to vessel monitoring plans for NMFS 
review and approval, as

[[Page 75884]]

instructed by the Regional Administrator.
    (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 in this section must submit all 
electronic monitoring data to the monitoring service provider in 
accordance with the electronic monitoring program requirements in this 
section, 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 in this section 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 in this section must comply with the 
requirements in paragraphs (l)(10)(i)(A) and (B) of this section 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 in this section 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 (l)(2) 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 (l)(10)(ii)(D) of this section, until the identified safety 
deficiency has been resolved, pursuant to Sec.  600.746(i) of this 
chapter.
    (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.
    (1) The vessel operator and crew may not begin offloading unless a 
dockside monitor is present or NMFS has issued the trip a waiver from 
the dockside monitoring program.
    (2) The vessel operator and crew must allow the dockside monitor 
access to the fish hold immediately following the offload in order to 
confirm all allocated groundfish were offloaded unless NMFS has issued 
the trip a waiver from the dockside monitoring program.
    (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. 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)(D), 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 in this section 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 in this chapter 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

[[Page 75885]]

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, and may possess, 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, report fish below the minimum size specified at Sec.  648.83 by 
species, and provide the dockside monitor access to those fish below 
the minimum size at the safe sampling station.
    (2) Sort by species all unmarketable fish from other fish, when 
identifiable to species.
    (3) 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.
    (4) 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 in this 
section on declared Atlantic herring trips, unless the vessel is 
carrying an observer to fulfill Standard Bycatch Reporting Methodology 
requirements in Sec.  648.18. 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 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 in paragraphs (d)(1) through (7) of this section, 
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
6. Effective January 9, 2023, amend Sec.  648.14 by:
0
a. Revising paragraph (a)(7);
0
b. Removing the heading from paragraph (a)(10);
0
c. Revising paragraphs (e), (i)(1)(ix)(B), (k)(3), and (k)(14)(ix) 
through (xiii);
0
d. Adding paragraphs (k)(14)(xiv) through (xvi); and
0
e. Revising paragraph (r)(2)(v).
    The revisions and additions 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

[[Page 75886]]

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 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) * * *
    (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, allocated regulated species or ocean pout 
in excess of the possession limits specified in Sec.  648.82, Sec.  
648.85, Sec.  648.86, or Sec.  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, allocated regulated species 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 monitor's 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. Sec.  648.11(l)(10)(iii) and 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.  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 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.
    (xiv) Offload fish without a dockside monitor present or without a 
waiver issued by NMFS when participating in the maximized retention 
electronic monitoring program.
    (xv) Resist, oppose, impede, harass, intimidate, or interfere with 
or bar by command, impediment, threat, or coercion any dockside monitor 
conducting his or her duty to inspect a fish hold after offload.
    (xvi) Fish under a waiver from the groundfish sector monitoring 
program issued under Sec.  648.11(l)(5)(ii) or (iii) without complying 
with the requirements of Sec.  648.11(l)(5)(ii) or (iii), respectively; 
the VMS declaration requirements at Sec.  648.10; and the pre-trip 
notification requirements at Sec.  648.11(l)(1).
* * * * *
    (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
7. Effective January 9, 2023, amend Sec.  648.51 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
8. Effective January 9, 2023, amend Sec.  648.80 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
9. Effective January 9, 2023, amend Sec.  648.83 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

[[Page 75887]]

vessels that are not fishing under a NE multispecies DAS are specified 
in Sec.  648.89. Except as provided in Sec. Sec.  648.11(l)(10)(i)(E) 
and 648.17, all other vessels are subject to the following minimum fish 
sizes, determined by total length (TL):

   Table 1 to Paragraph (a)(1)--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
10. Effective January 9, 2023, amend Sec.  648.85 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 paragraph (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 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 
paragraph (e)(1)(viii)(C)(9) is final and may not be reviewed further.
* * * * *

0
11. Effective January 9, 2023, amend Sec.  648.86 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. Sec.  648.11(l) and 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

[[Page 75888]]

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
12. Effective January 9, 2023, amend Sec.  648.87 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) 
and (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 in this part for 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 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

[[Page 75889]]

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 National Environmental Policy Act 
(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 fisheries, as specified in paragraph (b)(1)(vi)(B) of 
this section; and
    (xv) A list of existing regulations in this part 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
13. Effective January 9, 2023, amend Sec.  648.90 by revising 
paragraphs (a)(2)(iii) and (iv) and (a)(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

[[Page 75890]]

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) Special Access Program (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.
    (iv) Based on the review of the most current scientific information 
available for the rebuilding plans for GOM cod and American plaice, the 
PDT shall determine whether the following conditions are met for either 
stock: The total catch limit has not been exceeded during the 
rebuilding program; new scientific information indicates that the stock 
is below its rebuilding trajectory (i.e., rebuilding has not progressed 
as expected); and Frebuild becomes less than 75% 
FMSY. If all three of these criteria are met, the PDT, and/
or SSC, shall undertake a rebuilding plan review to provide new catch 
advice that includes the following, in priority order: Review of the 
biomass reference points and calculation of Frebuild ACLs 
based on the review of the biomass reference points and the existing 
rebuilding plan.
* * * * *
    (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 
defaults to zero for the sector sub-ACL for the allocated regulated 
species stocks specified at Sec.  648.87(b)(1)(i)(A), unless through an 
action the New England Fishery Management Council specifies a different 
management uncertainty buffer for a sector sub-ACL to prevent catches 
from exceeding an ACL when the coverage target is 100 percent. 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 consider whether the 100-percent monitoring coverage target 
supports a zero percent buffer, or any other factor has a significant 
potential to result in catches that could exceed ACLs and will 
recommend an appropriate management uncertainty buffer if necessary.
* * * * *

0
14. Effective January 9, 2023, amend Sec.  648.202 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. 2022-26350 Filed 12-8-22; 8:45 am]
BILLING CODE 3510-22-P