Rule2022-26350
Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Amendment 23
Primary source
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Published
December 9, 2022
Effective
January 9, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26350]
[[Page 75851]]
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: <a href="https://www.nefmc.org/library/amendment-23">https://www.nefmc.org/library/amendment-23</a>.
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: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/commercial-fishing/northeast-groundfish-monitoring-program">https://www.fisheries.noaa.gov/new-england-mid-atlantic/commercial-fishing/northeast-groundfish-monitoring-program</a>.
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: <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. 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:
<bullet> 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.
<bullet> Approve additional electronic monitoring (EM) technologies
as an alternative to human at-sea monitors;
<bullet> Exclude from the monitoring requirement all trips in
geographic areas with expected low groundfish catch;
<bullet> Require periodic evaluation of the monitoring program and
exclusions from the monitoring requirement;
<bullet> 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
<bullet> 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 (<a href="https://bit.ly/3pdau1L">https://bit.ly/3pdau1L</a>). 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: <a href="https://media.fisheries.noaa.gov/2022-01/210826_SectorOpsEAGuidanceFY2021_2022_Revised.pdf">https://media.fisheries.noaa.gov/2022-01/210826_SectorOpsEAGuidanceFY2021_2022_Revised.pdf</a>.
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
[[Page 75854]]
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,
[[Page 75855]]
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:
<bullet> The addition of new sector monitoring tools (e.g., EM,
other technologies or approaches) that meet or exceed the Council's
selected monitoring standard;
<bullet> Setting vessel-specific coverage targets instead of
coverage targets applicable at the sector level; and
<bullet> 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:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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).
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> Revise the proposed prohibition at Sec. 648.14(e)(3) to
correct grammar.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> Revise proposed text at Sec. 648.14(k)(3)(v) to correct a
typographical error.
<bullet> 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.
<bullet> 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:
<bullet> 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.
<bullet> Approve additional EM technologies as an alternative to
human at-sea monitors;
<bullet> Exclude from the monitoring requirement all trips in
geographic areas with expected low groundfish catch;
<bullet> Require periodic evaluation of the monitoring program and
exclusions from the monitoring requirement;
<bullet> 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
<bullet> 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
<a href="http://reginfo.gov">reginfo.gov</a> 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: <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. 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: <a href="https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs">https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs</a>.
* * * * *
(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 f
[…truncated; see source link]Indexed from Federal Register on December 9, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.