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

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

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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:

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 industryfunded 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 (§ 648.11(l)(5)), which is effective
December 15, 2022.
ADDRESSES: The New England Fishery
Management Council (Council)
prepared an Environmental Impact
Statement (EIS) for this action that
describes the proposed measures in
Amendment 23 to the Northeast
Multispecies Fishery Management Plan
(FMP) and other considered
alternatives, and analyzes the impacts of
the proposed measures and alternatives.
The Council submitted the amendment
to NMFS, including the EIS, a
description of the Council’s preferred
alternatives, the Council’s rationale for
selecting each alternative, and a
Regulatory Impact Review (RIR). Copies
of supporting documents used by the
Council, including the EIS and RIR, are
available from: Thomas A. Nies,
Executive Director, New England
Fishery Management Council, 50 Water
Street, Newburyport, MA 01950 and
accessible via the internet in documents
available at: https://www.nefmc.org/
library/amendment-23.
Copies of this final rule and the small
entity compliance guide prepared for

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SUMMARY:

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permit holders are available from:
Michael Pentony, Regional
Administrator, Greater Atlantic Regional
Fisheries Office, 55 Great Republic
Drive, Gloucester, MA 01938 and
accessible via the internet at: https://
www.fisheries.noaa.gov/new-englandmid-atlantic/commercial-fishing/
northeast-groundfish-monitoringprogram.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this final rule
may be submitted to the Greater Atlantic
Regional Fisheries Office and to: https://
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
30-day Review—Open for Public
Comments’’ or by using the search
function.
FOR FURTHER INFORMATION CONTACT:
Mark Grant, Fishery Policy Analyst,
(978) 281–9145.
SUPPLEMENTARY INFORMATION:
Amendment 23 Summary
The Council initiated Amendment 23
to consider changes to the groundfish
monitoring and reporting system to
ensure it is providing accurate catch
information necessary to manage the
fishery effectively. The measures the
Council chose in this action adjust the
existing industry-funded sector
monitoring program to improve the
accuracy of collected catch data
(landings and discards) and catch
accounting. To address these issues, the
Council adopted Amendment 23 at its
September 2020 meeting. On April 12,
2022, we approved Amendment 23,
including all measures adopted by the
Council. In this final rule, we
implement the approved measures in
Amendment 23. The implementing
regulations in this final rule:
• Replace the current process for
calculating an annual at-sea monitoring
(ASM) coverage target with a fixed
monitoring coverage target as a
percentage of trips, dependent on
Federal funding.
• Approve additional electronic
monitoring (EM) technologies as an
alternative to human at-sea monitors;
• Exclude from the monitoring
requirement all trips in geographic areas
with expected low groundfish catch;
• Require periodic evaluation of the
monitoring program and exclusions
from the monitoring requirement;
• Remove the management
uncertainty buffer from the portion of
the acceptable biological catch (ABC)
allocated to the sector catch share, if
warranted, when the monitoring
coverage target is 100 percent; and

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• 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

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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 80percent 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.

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Amendment 23 does not remove or alter
the existing authority for the Regional
Administrator to deem types of EM
technology sufficient, or to require EM
if necessary, to be used in place of
human at-sea monitors. The Regional
Administrator may approve or
disapprove additional forms of EM,
consistent with the Administrative
Procedure Act (APA). The Council may
also approve additional forms of EM in
a future action.
The audit model is one of the EM
models included in Amendment 23. As
discussed in the proposed rule, NMFS
previously determined the EM audit
model is sufficient to verify a vessel’s
submission of information on
groundfish discards and other relevant
information (e.g., date and time, gear
category, location) for the purpose of
catch accounting, provided that the
vessel’s captain and crew adhere to
catch handling and reporting
requirements as described in the vessel
monitoring plan (VMP) (86 FR 16686,
March 31, 2021). Additional details of
the audit model requirements are
contained in the Fishing Years 2021–
2022 Sector Operations Plan, Contract,
and Environmental Assessment
Requirements guide (https://bit.ly/
3pdau1L). In this final rule, we are
making an administrative change to
require audit model vessels to report
discards at the sub-trip level, rather than
the haul level (see Changes from the
Proposed Action) below.
This rule also implements the
availability for use of the MREM model.
MREM verifies compliance with catch
retention requirements and uses
dockside monitoring (DSM) to collect
information on allocated groundfish at
the dock that otherwise would be
collected at sea. Under the MREM
model, the vessel operator and crew are
required to retain and land all catch of
allocated groundfish on all sector EM
trips, including fish below the
minimum size specified at 50 CFR
648.83, that otherwise would be
required to be discarded. Unallocated
regulated species, ocean pout, and nongroundfish 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

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dealer must report to NMFS landings of
all fish by MREM vessels, including fish
below the minimum size specified in
the regulations. This rule implements
MREM consistent with the NMFS
MREM program detailed in the draft
Sector Operations Plan, Contract, and
Environmental Assessment
Requirements guide for fishing year
2022 available at: https://
media.fisheries.noaa.gov/2022-01/
210826_SectorOpsEAGuidanceFY2021_
2022_Revised.pdf.
A vessel may use the audit model or
MREM to meet the sector monitoring
requirement only if that EM model is
included in the sector’s approved
operations plan. In order to effectively
administer the ASM and EM systems,
the Regional Administrator may
approve only sector operations plans
that adopt EM systems that limit
switching between ASM and EM within
the same fishing year. Thus, each
operations plan that allows vessels to
use EM must require such vessels to opt
into an EM program for an entire fishing
year, with two exceptions. First, a sector
may allow a vessel a single opportunity
to opt in/out of EM at any time during
a fishing year if the sector operations
plan includes both an approved ASM
and EM plan. Second, if a vessel
changes to a gear type not covered in the
VMP, the vessel may temporarily use
ASM until the VMP authorizing the use
of the new gear type is approved. We
would consider requests to switch from
one EM program to another during a
fishing year on a case-by-case basis that
considers minimizing disruption and
whether the switch is feasible within
the current system. The Regional
Administrator may provide written
approval of adjustments to the
restrictions on joining or leaving the EM
program along with publishing such
changes on the NMFS regional website,
consistent with the current process for
administrative changes to sector
operations plans.
Vessels using EM must have their EM
system operational and running on
every sector groundfish trip, including
trips that would be excluded from the
ASM requirement (see Exclusion from
Monitoring Requirements for Certain
Vessels Under Certain Conditions
below), unless issued a waiver by
NMFS. During each sector EM trip taken
by a vessel, the EM system records all
fishing activity on board the vessel. The
vessel operator and crew sort fish and
make any allowable discards within
view of the cameras in accordance with
the catch handling protocols described
in the VMP.
MREM vessels must also participate
in a DSM program. The vessel operator

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must notify the DSM program of its
intention to sail prior to beginning a
sector EM trip. Either the vessel
operator or dealer must provide an
offload time to the DSM program in
advance of landing. The advance notice
of landing and offload schedule will be
dependent on the nature of the vessel’s
activity (e.g., day boat vs. trip boat
vessels) and will be defined in the
vessel’s VMP. The vessel operator, crew,
and dealer must offload all allocated
groundfish in the presence of the
dockside monitor. The vessel operator
and crew may not begin offloading
unless a dockside monitor is present or
they have received a waiver from the
DSM program. The vessel operator must
allow the dockside monitor access to the
fish hold immediately following the
offload in order to confirm all allocated
groundfish were offloaded. The vessel
operator and crew, or dealer personnel,
must sort fish below the minimum size
specified at § 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 industryfunded 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

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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

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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 MagnusonStevens 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
§ 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°30′ W Longitude from the ASM
requirement. Vessels are required to
notify NMFS of all trips through PTNS,

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but NMFS will issue a waiver for a
sector trip exempting the vessel from
ASM on a trip fishing exclusively west
of 71°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 § 648.10(g)(3), and the transiting
requirements at § 648.81(e) when east of
71°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°30′ W
Longitude. The 30-day delay in
effectiveness is waived for this
provision (see DATES).

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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°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

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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 subACLs 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
§ 648.87(b)(1)(v) and the sector reporting
requirements previously codified at
§ 648.87(b)(1)(vi) to streamline the
sector reporting process. This final rule
moves the requirements previously
codified at § 648.87(b)(1)(v) to
§ 648.11(l)(10)(iii) and redesignates the
sector reporting requirements
previously codified at § 648.87(b)(1)(vi)
as § 648.87(b)(1)(v). Any changes to the

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requirements in § 648.11(l)(10)(iii) or
§ 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 § 648.90 list
management measures that may be
changed or implemented through
specifications or framework actions.
This rule adds all alternatives
considered in Amendment 23 to the list
of FMP items that may be considered in
a future framework. Specifically, this
includes:
• The addition of new sector
monitoring tools (e.g., EM, other
technologies or approaches) that meet or
exceed the Council’s selected
monitoring standard;
• Setting vessel-specific coverage
targets instead of coverage targets
applicable at the sector level; and
• All the Amendment 23 measures
discussed in detail above.
Regulatory Adjustments and
Corrections Under Regional
Administrator Authority
In this final rule, NMFS is
implementing several administrative
changes to the regulations consistent
with section 305(d) of the MagnusonStevens 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 § 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
§ 648.87 to § 648.11. Third, we revise
§ 648.11 to update the names of
divisions within NMFS. Fourth, we
revise §§ 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

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revise § 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.

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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 atsea 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 100percent 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 100percent at-sea monitoring coverage
target.
Response: On April 12, 2022, we
approved Amendment 23, including all

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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 predetermined 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

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Environment is described in the final
EIS based on valued ecosystem
components (VECs), including:
Regulated groundfish species; nongroundfish 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

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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

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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

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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

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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 100percent 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

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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

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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.’’

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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 MagnusonStevens Act requirements. As a result,
the EIS includes a cost efficiency
analysis, rather than a formal costbenefit 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
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communities of the EM provision, and
urged us to make EM mandatory and to
subsidize EM start-up costs for lowengagement 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

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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

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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 100percent 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.

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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

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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

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(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 40percent 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
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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

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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

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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 100percent 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.

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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 40percent 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 40percent 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

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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
§ 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 § 648.11(h)
and (l)(10)(ii). Additional
implementation measures are also
specified in § 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 industryfunded 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

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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.

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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

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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

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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 costeffectiveness 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.

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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 costeffective replacement for human at-sea

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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

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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 nonallocated groundfish stocks. Data from
those trips are used to create discard

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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 nonallocated 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

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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
§ 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
§ 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 § 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

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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 § 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
§ 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

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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
§ 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
§ 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° 30’
W. Longitude. The Council highlighted

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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
§ 648.11(l)(10)(ii)(B). GMRI explained
that it is challenging and expensive for
EM providers to file a report on a multiday 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,

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we have approved the regulatory
requirement as proposed.
Comment 35: GMRI opposed the
portion of the proposed implementing
regulations at § 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
§ 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 industryfunded DSM program to replace the
NMFS-operated DSM program. We
intend to test alternative protocols to
develop efficiencies and potential costsavings 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
§ 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.

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Response: We agree and have revised
the regulation at § 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
§ 648.11(l)(10)(iv)(B)(2), to allow
redfish, haddock, and pollock below the
minimum size specified at § 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
§ 648.11(l)(10)(iv)(B)(2) to require
dealers to separate, by species, all fish
below the minimum size specified at
§ 648.83. This change removes the
option for a dealer to report a mix of fish
below the minimum size specified at
§ 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
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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 dealerreported 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 § 648.83.
As part of implementing Amendment
23, the regulations authorize only

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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 § 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

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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
§ 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

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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

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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 50percent 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 30percent 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.

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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

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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.

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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°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°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,
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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°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 tripstart 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°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°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

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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° 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

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71° 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
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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 100percent 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-

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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° 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

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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
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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 costeffective 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 haullevel 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

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inconsistencies, or clarify the proposed
regulatory text. Other changes to the
proposed implementing regulations are
in response to further consideration of
implementation needs and public
comments. In this final rule, we make
the following changes to the proposed
implementing regulations:
• Revise the proposed definition at
§ 648.2 for electronic monitoring audit
model to remove the requirement to
report discards at the haul level. This
change from the proposed regulatory
text streamlines the eVTR reporting
requirement for EM audit model vessels
and is consistent with how sectors are
operating under the current operational
audit model program. During
development of this model under an
exempted fishing permit, we
determined trip-level reporting was
sufficient and reduced the burden on
vessels.
• Revise proposed text at
§ 648.11(h)(5)(vii)(I) to apply to all EM
staff rather than only video reviewers.
This provides NMFS with the
opportunity to request a copy of valid
contracts between monitoring service
providers and all their staff to ensure a
service provider meets all performance
requirements, rather than limiting that
opportunity to only video reviewers.
• Revise proposed text at
§ 648.11(h)(7)(v) to add video reviewers
to the list of monitoring provider staff
whose decertification may be
considered by NMFS when determining
whether to remove a monitoring service
provider from the list of approved
service providers.
• Revise proposed text at
§ 648.11(l)(2) to remove vessel
monitoring plans from the list of items
required to be approved as part of sector
operations plans to be consistent with
current practice and other proposed
regulatory text. The proposed text was
inconsistent with current practice and
the other proposed EM requirements.
• Revise proposed text at
§ 648.11(l)(4) to clarify EM vessels
cannot leave the dock without a
functioning EM system, unless granted
a waiver. The proposed text was
inconsistent with current practice and
the other proposed EM requirements.
• Revise proposed text at
§ 648.11(l)(5)(i) to clarify that NMFS
will determine, and announce, EM
video review rates separately from the
ASM coverage target.
• Revise the proposed text at
§ 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

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entire trip. Rather, vessels must perform
a pre-trip system check to ensure the
electronic monitoring system is
operational prior to departing on a
fishing trip. This change is being made
in response to comments, as discussed
above (see Comments and Responses
above).
• Revise proposed text at
§ 648.11(l)(10)(i)(B) to clarify the
proposed vessel monitoring plan
approval process. The revised regulation
clarifies that all changes to a VMP must
be submitted to NMFS for review.
• Revise proposed text at
§ 648.11(l)(10)(i)(B)(7) to correct the
internal citation to § 648.11(l)(10)(i)(A)
and (B) to encompass electronic
monitoring system requirements and
vessel monitoring plan requirements for
EM vessels.
• Revise proposed text at
§ 648.11(l)(10)(i)(C) to correct internal
regulatory citations to regulations
moved as part of this final rule.
• Added new text at
§ 648.11(l)(10)(i)(D)(1) to require a
dockside monitor to be present before
the vessel operator or crew begins
offloading an MREM vessel, unless
NMFS has issued the trip a waiver from
the DSM program. This requirement was
listed in the preamble of the proposed
rule, but was inadvertently left out of
the proposed regulations.
• Added new text at
§ 648.11(l)(10)(i)(D)(2) to require a
vessel operator and crew to allow the
dockside monitor access to the fish hold
immediately following the offload in
order to confirm all allocated groundfish
were offloaded unless NMFS has issued
the trip a waiver from the dockside
monitoring program. This requirement
was listed in the preamble of the
proposed rule, but was inadvertently
left out of the proposed regulations.
• Revise proposed text at
§ 648.11(l)(10)(iv)(B)(1) to remove the
proposed requirement that dealers
offload fish below the minimum size
from maximized retention electronic
monitoring vessels before offloading
other fish. This change is being made in
response to comments (see Comments
and Responses above) to allow industry
members to determine the most efficient
way to offload.
• Revise the proposed text at
§ 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

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program in our existing data systems.
Further, dealers participating in the
MREM EFP have opted to separate fish
below the minimum size for market
reasons.
• Revise the proposed prohibition at
§ 648.14(e)(3) to correct grammar.
• Revise the proposed prohibition at
§ 648.14(k)(2)(vii) to clarify that it is
unlawful for any person to fish in a
manner inconsistent with the
requirements for vessels granted a
waiver from the at-sea monitoring
requirement on trips that are excluded
from the at-sea monitoring requirement.
This change is consistent with the
Council’s intent to exclude from the
human ASM requirement only trips
fishing in compliance with all
requirements and is designed to help
facilitate enforcement.
• Move the prohibition proposed to
be codified at § 648.14(k)(2)(vii) to
§ 648.14(k)(14)(xvi) to keep prohibitions
related to the sector program grouped
together.
• Revise proposed text at
§ 648.14(k)(3)(iii) to remove ocean pout
from the list of species dealers may
receive from MREM vessels. This
change is consistent with the Council’s
intent for MREM vessels to discard zero
possession stocks for which possession
is prohibited (i.e., zero-possession
stocks) and is designed to help facilitate
enforcement.
• Revise proposed text at
§ 648.14(k)(3)(v) to correct a
typographical error.
• Added new text at
§ 648.14(k)(14)(xiv) and (xv) to add
prohibitions complementing the new
§ 648.11(l)(10)(i)(D)(1) and (2). Those
requirements were listed in the
preamble of the proposed rule, but were
inadvertently left out of the proposed
regulations.
• Revise the proposed text at
§ 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

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75873

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°30′ W
Longitude to fish without carrying an atsea 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
§ 648.10(k)(3)(ii), and/or the Southern
New England Broad Stock Area, as
defined at § 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 atsea monitor; and the cost of hiring an atsea monitor. Implementing the
geographic exclusion from the at-sea
monitoring program at § 648.11(l)(5)(iii)
relieves the restriction against fishing
without an at-sea monitor, thereby
allowing vessels fishing exclusively
west of 71°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

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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°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 atsea 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

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$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.

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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

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entity is large or small is based on the
average annual revenue for the three
years from 2017 through 2019.
Ownership data collected from vessel
permit holders indicate that there are
667 distinct business entities that hold
at least one vessel permit regulated by
the action. Of these, all are engaged
primarily in commercial fishing, and 80
did not have any revenues (were
inactive) in 2019. Of these distinct
business entities, 661 are categorized as
small entities and 6 are categorized as
large entities, per the NMFS guidelines.
Ownership data collected from dealer
permit holders indicate there are 148
distinct business entities that hold at
least one dealer permit regulated by this
action. Of these, 135 distinct businesses
are categorized as small entities and 13
are categorized as large entities, per the
NMFS guidelines.
Description of the Steps the Agency Has
Taken To Minimize the Significant
Economic Impact on Small Entities
Consistent With the Stated Objectives of
Applicable Statutes
The New England Fishery
Management Council selected all
alternatives that met the objectives of
the action, and minimized costs, to
provide regulated businesses the ability
to choose the monitoring options that
best suit their operations while meeting
the catch accounting requirements.
The implementing regulations in this
final rule:
• Replace the current process for
calculating an annual ASM coverage
target with a fixed monitoring coverage
target as a percentage of trips,
dependent on Federal funding.
• Approve additional EM
technologies as an alternative to human
at-sea monitors;
• Exclude from the monitoring
requirement all trips in geographic areas
with expected low groundfish catch;
• Require periodic evaluation of the
monitoring program and exclusions
from the monitoring requirement;
• Remove the management
uncertainty buffer from the portion of
the ABC allocated to the sector catch
share, if warranted, when the
monitoring coverage target is 100
percent; and
• Grant authority to the Northeast
Regional Administrator to revise sector
reporting requirements to streamline
reporting for the industry.
Amendment 23 examined a range of
options that adjust the current
monitoring program to improve
accounting and accuracy of collected
catch data. The range included variable
and fixed target coverage levels (25, 50,
75, and 100 percent) based on catch or

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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° 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

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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° 30′ W Longitude
are excluded from the ASM
requirement. This may increase profits
if the minimum coverage target of 40
percent is implemented due to a lack of
Federal subsidies for industry
monitoring costs. Similarly, when the
ASM coverage target is set higher than
40 percent, vessels opting to fish in this
geographic area will reduce monitoring
costs subsidized by Federal funds,
allowing Federal funding to cover
monitoring for a longer duration or at a
higher coverage target.
Description of the Projected Reporting,
Record-Keeping, and Other Compliance
Requirements of This Rule
A description of the projected
reporting, recordkeeping, and other
compliance requirements of this action,
including an estimate of the classes of
small entities that will be subject to the
requirements is contained in the
Information Collection List for 0648–
0800 available on the Office of
Information and Regulatory Affairs
(OIRA) website at reginfo.gov and
summarized below.
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity
compliance guides. The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, a letter to permit
holders that also serves as small entity
compliance guide (the guide) was
prepared. Copies of this final rule are
available from the Greater Atlantic
Regional Fisheries Office (see
ADDRESSES), and the guide, i.e., permit
holder letter, will be sent to all holders
of permits for the fishery. The guide and
this final rule will be available upon
request.
This final rule contains a new
temporary collection-of-information
requirement subject to review and
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act (PRA) control number
0648–0800. This temporary information
collection was created due to timing

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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

Requirement

Responses

Hours

Dollars

Dockside Monitoring Notifications, Database Requirements, and Monitoring Costs ..........................
Service Provider Application and Response to Denial .......................................................................

49,200
4

16,236
40

2,805,876
12

Total ..............................................................................................................................................

49,204

16,276

2,805,888

We invite the general public and other
Federal agencies to comment on
proposed and continuing information
collections, which helps us assess the
impact of our information collection
requirements and minimize the public’s
reporting burden. Written comments
and recommendations for this
information collection should be
submitted on the following website:
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
Review’’ or by using the search function
and entering the title of the collection.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person by
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.

b. Adding the definitions for
‘‘Electronic monitoring audit model’’,
‘‘Electronic monitoring maximized
retention model’’, and ‘‘Electronic
monitoring provider staff’’ in
alphabetical order;
■ c. Revising the definition for
‘‘Observer or monitor’’;
■ d. Removing the definition for
‘‘Observer/sea sampler’’;
■ e. Republishing in alphabetical order
the definition of ‘‘Ocean quahog’’;
■ f. Revising the definition for
‘‘Slippage in the Atlantic herring
fishery’’ and placing the definition into
alphabetical order;
■ g. Revising the definition for ‘‘Slip(s)
or slipping catch in the Atlantic herring
fishery’’; and
■ h. Revising the definition for ‘‘Video
reviewer’’.
The revisions, additions, and
republication read as follows:
■

§ 648.2

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
1. The authority citation for part 648
continues to read as follows:

■
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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.

Authority: 16 U.S.C. 1801 et seq.

2. Effective January 9, 2023, amend
§ 648.2 by:
■ a. Revising the definition for
‘‘Electronic monitoring’’;
■

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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 § 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

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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

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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.
*
*
*
*
*
3. Effective January 9, 2023, amend
§ 648.10 by revising paragraph (f)(4)(i) to
read as follows:

■

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§ 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 § 648.59(b)(9),
Northern Gulf of Maine research setaside (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.
*
*
*
*
*
■ 4. Effective December 15, 2022,
amend § 648.11 by adding reserved
paragraph (l)(4) and paragraph (l)(5) to
read as follows:
§ 648.11

Monitoring coverage.

*

*
*
*
*
(l) * * *
(4) [Reserved]
(5) Sector monitoring coverage levels.
(i) through (ii) [Reserved]
(iii) Geographic exclusion from the atsea monitoring program. Vessels fishing
exclusively west of 71°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 atsea monitoring requirement under this
paragraph (l)(5)(iii) must comply with
the VMS declaration requirements at
§ 648.10(g)(3), and the transiting
requirements at § 648.81(e) when east of
71°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°30′
W Longitude.
*
*
*
*
*
■ 5. Effective January 9, 2023, further
amend § 648.11 by:
■ a. Revising paragraphs (a), (b), (d),
(h)(1), (h)(3)(vii), and (h)(3)(ix) and (x);
■ b. Adding introductory text to
paragraph (h)(5);

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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);
■ d. Adding paragraph (i)(7); and
■ 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:
■

§ 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

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transmission and receipt of messages
related to the observer’s or monitor’s
duties.
(3) Provide true vessel locations, by
latitude and longitude or loran
coordinates, as requested by the
observer or monitor, and allow the
observer or monitor access to and use of
the vessel’s navigation equipment and
personnel upon request to determine the
vessel’s position.
(4) Notify the observer or monitor in
a timely fashion of when fishing
operations are to begin and end.
(5) Allow for the embarking and
debarking of the observer or monitor, as
specified by the Regional Administrator,
ensuring that transfers of observers or
monitors at sea are accomplished in a
safe manner, via small boat or raft,
during daylight hours as weather and
sea conditions allow, and with the
agreement of the observers or monitors
involved.
(6) Allow the observer or monitor free
and unobstructed access to the vessel’s
bridge, working decks, holding bins,
weight scales, holds, and any other
space used to hold, process, weigh, or
store fish.
(7) Allow the observer or monitor to
inspect and copy any the vessel’s log,
communications log, and records
associated with the catch and
distribution of fish for that trip.
*
*
*
*
*
(h) * * *
(1) General. An entity seeking to
provide monitoring services, including
services for IFM Programs described in
paragraph (g) of this section, must apply
for and obtain approval from NMFS
following submission of a complete
application. Monitoring services include
providing observers, monitors (at-sea
monitors and portside samplers), and/or
electronic monitoring. A list of
approved monitoring service providers
shall be distributed to vessel owners
and shall be posted on the NMFS
Fisheries Sampling Branch (FSB)
website: https://www.fisheries.noaa.gov/
resource/data/observer-providersnortheast-and-mid-atlantic-programs.
*
*
*
*
*
(3) * * *
(vii) Evidence of holding adequate
insurance to cover injury, liability, and
accidental death for any observers,
monitors (at-sea or dockside/roving
monitors), or electronic monitoring
provider staff who provide electronic
monitoring services onboard vessels,
whether contracted or directly
employed by the service provider,
during their period of employment
(including during training).
(A) A monitoring service provider
must hold Workers’ Compensation and

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Maritime Employer’s Liability for
observers, monitors, vessel owners, and
their operations. The minimum
combined coverage required is $5
million.
(B) An electronic monitoring service
provider must hold Worker’s
Compensation and commercial general
liability coverage for electronic
monitoring provider staff. The
minimum combined coverage required
is $1 million.
(C) Upon request by a vessel owner,
operator, or vessel manager, a
monitoring service provider must
provide a certificate of insurance, or
other evidence, that demonstrates they
have the required coverages under
paragraphs (h)(3)(vii)(A) and (B) of this
section as appropriate.
*
*
*
*
*
(ix) The names of its fully equipped
certified observers, monitors, or video
reviewers on staff; or a list of its training
candidates (with resumes) and a request
for an appropriate NMFS-certified
training class. All training classes have
a minimum class size of eight
individuals, which may be split among
multiple vendors requesting training.
Requests for training classes with fewer
than eight individuals will be delayed
until further requests make up the full
training class size.
(x) An Emergency Action Plan (EAP)
describing its response to an emergency
with an observer, monitor, or electronic
monitoring provider staff on a vessel at
sea or in port, including, but not limited
to, personal injury, death, harassment,
or intimidation. The EAP shall include
communications protocol and
appropriate contact information in an
emergency.
*
*
*
*
*
(5) Responsibilities of monitoring
service providers. To maintain an
approved monitoring service provider
status, a monitoring service provider,
including electronic monitoring service
providers, must demonstrate an ability
to provide or support the following
monitoring services:
(i) Certified observers or monitors.
Provide observers or monitors that have
passed a NMFS-certified Observer or
Monitor Training class pursuant to
paragraph (i) of this section for
deployment in a fishery when contacted
and contracted by the owner, operator,
or vessel manager of a fishing vessel,
unless the monitoring service provider
refuses to deploy an observer or monitor
on a requesting vessel for any of the
reasons specified at paragraph
(h)(5)(viii) of this section.
(ii) Support for observers, monitors, or
electronic monitoring provider staff.

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Ensure that each of its observers,
monitors, or electronic monitoring
provider staff procures or is provided
with the following:
(A) All necessary transportation,
lodging costs and support for
arrangements and logistics of travel for
observers, monitors, or electronic
monitoring provider staff to and from
the initial location of deployment, to all
subsequent vessel assignments, to any
debriefing locations, and for
appearances in Court for monitoringrelated trials as necessary;
(B) Lodging, per diem, and any other
services necessary for observers,
monitors, or electronic monitoring
provider staff assigned to a fishing
vessel or to attend an appropriate NMFS
training class;
(C) The required observer, monitor, or
electronic monitoring equipment, in
accordance with equipment
requirements, prior to any deployment
and/or prior to certification training;
and
(D) Individually assigned
communication equipment, in working
order, such as a mobile phone, for all
necessary communication. A monitoring
service provider may alternatively
compensate observers or monitors for
the use of the observer’s or monitor’s
personal mobile phone, or other device,
for communications made in support of,
or necessary for, the observer’s or
monitor’s duties.
(iii) Deployment logistics. (A) Assign
an available observer or monitor to a
vessel upon request. For service
providers contracted to meet the
requirements of the Northeast
multispecies monitoring program in
paragraph (l) of this section, assign
available at-sea monitors, electronic
monitoring provider staff, and other
approved at-sea monitoring mechanisms
fairly and equitably in a manner that
represents fishing activities within each
sector throughout the fishing year
without regard to any sector manager or
vessel representative preference.
(B) Enable an owner, operator, or
manager of a vessel to secure monitoring
coverage or electronic monitoring
technical support when requested, 24
hours per day, 7 days per week via a
telephone or other notification system
that is monitored a minimum of four
times daily to ensure rapid response to
industry requests.
(iv) Observer deployment limitations.
(A) A candidate observer’s first several
deployments and the resulting data
shall be immediately edited and
approved after each trip by NMFS prior
to any further deployments by that
observer. If data quality is considered

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acceptable, the observer would be
certified.
(B) For the purpose of coverage to
meet SBRM requirements in § 648.18,
unless alternative arrangements are
approved by NMFS, a monitoring
service provider must not deploy any
observer on the same vessel for more
than two consecutive multi-day trips,
and not more than twice in any given
month for multi-day deployments.
(C) For the purpose of coverage to
meet IFM requirements in this section,
a monitoring service provider may
deploy any observer or monitor on the
same vessel for more than two
consecutive multi-day trips and more
than twice in any given month for
multi-day deployments.
*
*
*
*
*
(vi) Observer and monitor training
requirements. Ensure all observers and
monitors attend and complete a NMFScertified Observer or Monitor Training
class. Requests for training must be
submitted to NMFS 45 calendar days in
advance of the requested training. The
following information must be
submitted to NMFS at least 15 business
days prior to the beginning of the
proposed training: A list of observer or
monitor candidates; candidate resumes,
cover letters and academic transcripts;
and a statement signed by the candidate,
under penalty of perjury, that discloses
the candidate’s criminal convictions, if
any. A medical report certified by a
physician for each candidate is required
7 business days prior to the first day of
training. CPR/First Aid certificates and
a final list of training candidates with
candidate contact information (email,
phone, number, mailing address and
emergency contact information) are due
7 business days prior to the first day of
training. NMFS may reject a candidate
for training if the candidate does not
meet the minimum qualification
requirements as outlined by NMFS
minimum eligibility standards for
observers or monitors as described on
the National Observer Program website:
https://www.fisheries.noaa.gov/topic/
fishery-observers#become-an-observer.
(vii) Reports and requirements—(A)
Deployment reports. (1) Report to NMFS
when, where, to whom, and to what
vessel an observer or monitor has been
deployed, as soon as practicable, and
according to requirements outlined by
NMFS. The deployment report must be
available and accessible to NMFS
electronically 24 hours a day, 7 days a
week.
(2) Ensure that the raw (unedited)
data collected by the observer or
monitor is provided to NMFS at the
specified time per program. Electronic

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data submission protocols will be
outlined in training and may include
accessing Government websites via
personal computers/devices or
submitting data through Government
issued electronics.
(B) Safety refusals. Report to NMFS
any trip or landing that has been refused
due to safety issues (e.g., failure to hold
a valid U.S. Coast Guard (USCG)
Commercial Fishing Vessel Safety
Examination Decal or to meet the safety
requirements of the observer’s or
monitor’s safety checklist) within 12
hours of the refusal.
(C) Biological samples. Ensure that
biological samples, including whole
marine mammals, sea turtles, sea birds,
and fin clips or other DNA samples, are
stored/handled properly and
transported to NMFS within 5 days of
landing. If transport to NMFS Observer
Training Facility is not immediately
available then whole animals requiring
freezing shall be received by the nearest
NMFS freezer facility within 24 hours of
vessel landing.
(D) Debriefing. Ensure that the
observer, monitor, or electronic
monitoring provider staff remains
available to NMFS, either in-person or
via phone, at NMFS’ discretion,
including NMFS Office of Law
Enforcement, for debriefing for at least
2 weeks following any monitored trip/
offload or electronic monitoring trip
report submission. If requested by
NMFS, an observer or monitor that is at
sea during the 2-week period must
contact NMFS upon his or her return.
Monitoring service providers must pay
for travel and land hours for any
requested debriefings.
(E) Availability report. The
monitoring service provider must report
to NMFS any inability to respond to an
industry request for observer or monitor
coverage due to the lack of available
observers or monitors as soon as
practicable. Availability report must be
available and accessible to NMFS
electronically 24 hours a day, 7 days a
week.
(F) Incident reports. Report possible
observer, monitor, or electronic
monitoring provider staff harassment,
discrimination, concerns about vessel
safety, or marine casualty; concerns
with possible electronic monitoring
system tampering, data loss, or catch
handling protocols; or observer or
monitor illness or injury; or other events
as specified by the Regional
Administrator; and any information,
allegations, or reports regarding
observer, monitor, or electronic
monitoring provider staff conflict of
interest or breach of the standards of
behavior, to NMFS within 12 hours of

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the event or within 12 hours of learning
of the event.
(G) Status report. (1) Provide NMFS
with an updated list of contact
information for all observers or monitors
that includes the identification number,
name, mailing address, email address,
phone numbers, homeports or fisheries/
trip types assigned, and must include
whether or not the observer or monitor
is ‘‘in service,’’ indicating when the
observer or monitor has requested leave
and/or is not currently working for an
industry-funded program.
(2) Place any federally contracted
observer not actively deployed on a
vessel for 30 days on Leave of Absence
(LOA) status (or as specified by NMFS)
according to most recent Information
Technology Security Guidelines.
(3) Ensure federally contracted
observers on LOA for 90 days or more
conduct an exit interview with NMFS
and return any NMFS issued gear and
Common Access Card (CAC), unless
alternative arrangements are approved
by NMFS. NMFS requires 2-week
advance notification when a federally
contracted observer is leaving the
program so that an exit interview may
be arranged and gear returned.
(H) Vessel contract. Submit to NMFS,
if requested, a copy of each type of
signed and valid contract (including all
attachments, appendices, addendums,
and exhibits incorporated into the
contract) between the monitoring
service provider and those entities
requiring monitoring services.
(I) Observer, monitor, or electronic
monitoring provider staff contract.
Submit to NMFS, if requested, a copy of
each type of signed and valid contract
(including all attachments, appendices,
addendums, and exhibits incorporated
into the contract) between the
monitoring service provider and specific
observers, monitors, or electronic
monitoring provider staff.
(J) Additional information. Submit to
NMFS, if requested, copies of any
information developed and/or used by
the monitoring service provider and
distributed to vessels, observers,
monitors, or electronic monitoring
provider staff such as informational
pamphlets, payment notification, daily
rate of monitoring or review services,
description of observer or monitor
duties, etc.
(K) Discard estimates. Estimate
discards for each trip and provide such
information to the sector manager and
NMFS when providing monitoring
services to meet catch estimation and/or
at-sea or electronic monitoring service
requirements in paragraph (l) of this
section.

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(L) Data system. If contracted to meet
the requirements of the groundfish
sector monitoring program in paragraph
(l) of this section, maintain an electronic
monitoring system to record, retain, and
distribute to NMFS upon request for a
minimum of 12 months after receiving
notice from NMFS that catch data are
finalized for the fishing year, the
following information:
(1) The number of at-sea monitor
deployments and other approved
monitoring equipment deployments or
video reviews, including any refusal to
provide service when requested and
reasons for such refusals;
(2) Incident/non-compliance reports
(e.g., failure to offload catch);
(3) Vessel hail reports and landings
records;
(4) Electronic monitoring data and
reports; and
(5) A means to protect the
confidentiality and privacy of data
submitted by vessels, as required by the
Magnuson-Stevens Act.
(M) Data retention. Ensure that
electronic monitoring data and reports
are retained for a minimum of 12
months after catch data are finalized for
the fishing year. NMFS will notify
monitoring service providers of the
catch data finalization date each year.
The electronic monitoring service
provider must provide NMFS access to
electronic monitoring data or reports
upon request.
(N) Software requirements. Provide
NMFS with all software necessary for
accessing, viewing, and interpreting the
data generated by the electronic
monitoring system, including
submitting the agency’s secondary
review data to the application
programming interface and maintenance
releases to correct errors in the software
or enhance software functionality. The
software must:
(1) Support a ‘‘dual user’’ system that
allows NMFS to complete and submit
secondary reviews to the application
programming interface.
(2) Allow for the export or download
of electronic monitoring data in order
for the agency to make a copy if
necessary.
(O) Software training. Provide
software training for NMFS staff.
(P) Facilitation. Provide the following
to NMFS upon request:
(1) Assistance in electronic
monitoring system operations,
diagnosing/resolving technical issues,
and recovering lost or corrupted data;
(2) Responses to inquiries related to
data summaries, analyses, reports, and
operational issues; and
(3) Access to video reviewers for
debriefing sessions.

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(Q) Litigation support. Provide
technical and expert information
substantiating electronic monitoring
system data, testing procedures, error
rates, peer review or other issues raised
in litigation, including but not limited
to, a brief summary of the litigation and
any court findings on the reliability of
the technology.
*
*
*
*
*
(7) Removal of monitoring service
provider from the list of approved
service providers. A monitoring service
provider that fails to meet the
requirements, conditions, and
responsibilities specified in paragraphs
(h)(5) and (6) of this section shall be
notified by NMFS, in writing, that it is
subject to removal from the list of
approved monitoring service providers.
Such notification shall specify the
reasons for the pending removal. A
monitoring service provider that has
received notification that it is subject to
removal from the list of approved
monitoring service providers may
submit written information to rebut the
reasons for removal from the list. Such
rebuttal must be submitted within 30
days of notification received by the
monitoring service provider that the
monitoring service provider is subject to
removal and must be accompanied by
written evidence rebutting the basis for
removal. NMFS shall review
information rebutting the pending
removal and shall notify the monitoring
service provider within 15 days of
receipt of the rebuttal whether or not the
removal is warranted. If no response to
a pending removal is received by NMFS,
the monitoring service provider shall be
automatically removed from the list of
approved monitoring service providers.
The decision to remove the monitoring
service provider from the list, either
after reviewing a rebuttal, or if no
rebuttal is submitted, shall be the final
decision of NMFS and the Department
of Commerce. Removal from the list of
approved monitoring service providers
does not necessarily prevent such
monitoring service provider from
obtaining an approval in the future if a
new application is submitted that
demonstrates that the reasons for
removal are remedied. Observers and
monitors under contract with observer
monitoring service provider that has
been removed from the list of approved
service providers must complete their
assigned duties for any fishing trips on
which the observers or monitors are
deployed at the time the monitoring
service provider is removed from the list
of approved monitoring service
providers. A monitoring service
provider removed from the list of

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approved monitoring service providers
is responsible for providing NMFS with
the information required in paragraph
(h)(5)(vii) of this section following
completion of the trip. NMFS may
consider, but is not limited to, the
following in determining if a monitoring
service provider may remain on the list
of approved monitoring service
providers:
(i) Failure to meet the requirements,
conditions, and responsibilities of
monitoring service providers specified
in paragraphs (h)(5) and (6) of this
section;
(ii) Evidence of conflict of interest as
defined under paragraph (h)(6) of this
section;
(iii) Evidence of criminal convictions
related to:
(A) Embezzlement, theft, forgery,
bribery, falsification or destruction of
records, making false statements, or
receiving stolen property; or
(B) The commission of any other
crimes of dishonesty, as defined by state
law or Federal law, that would seriously
and directly affect the fitness of an
applicant in providing monitoring
services under this section; and
(iv) Unsatisfactory performance
ratings on any Federal contracts held by
the applicant; and
(v) Evidence of any history of
decertification as either an observer,
monitor, video reviewer, or monitoring
service provider.
(i) Observer, monitor, or video
reviewer certification—(1)
Requirements. To be certified as an
observer, or monitor, or video reviewer,
a monitoring service provider employee
or contractor must meet the criteria in
paragraphs (i)(1) through (3) of this
section for observers, or paragraphs
(i)(1), (2), and (4) of this section for
monitors, and paragraphs (i)(1), (2), and
(5) of this section for video reviewers,
respectively. Observers are deemed to
have satisfied the basic minimum
eligibility requirements if they meet the
NMFS National Minimum Eligibility
Standards for observers specified at the
National Observer Program website:
https://www.fisheries.noaa.gov/topic/
fishery-observers#become-an-observer.
(2) Training. In order to provide
observer or monitor services and be
deployed on any fishing vessel, a
candidate observer or monitor must
have passed an appropriate NMFScertified Observer or Monitor Training
course and must adhere to all NMFS
program standards and policies. In order
to perform electronic monitoring video
review, a candidate video reviewer must
have passed an appropriate NMFScertified Video Review Training course
and must adhere to all NMFS program

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standards and policies. NMFS will
immediately notify any candidate that
fails training and the monitoring service
provider. Observer or monitor training
may include an observer training trip, as
part of the observer’s training, aboard a
fishing vessel with a trainer. Contact
NMFS for the required number of
program specific observer and monitor
training certification trips for full
certification following training.
(3) * * *
(i) Have a valid NMFS fisheries
observer certification pursuant to
paragraph (i)(1) of this section;
*
*
*
*
*
(4) * * *
(ii) Have a valid NMFS certification
pursuant to paragraph (i)(1) of this
section;
*
*
*
*
*
(5) Video reviewer requirements. All
video reviewers must:
(i) Hold a high school diploma or
legal equivalent;
(ii) Have a valid NMFS certification
pursuant to paragraph (i)(1) of this
section; and
(iii) Accurately record sampling data,
write complete reports, and report
accurately any observations relevant to
conservation of marine resources or
their environment.
(6) Probation and decertification.
NMFS may review observer, monitor,
and video reviewer certifications and
issue observer, monitor, and video
reviewer certification probations and/or
decertifications as described in NMFS
policy.
(7) Issuance of decertification. Upon
determination that decertification is
warranted under paragraph (i)(6) of this
section, NMFS shall issue a written
decision to decertify the observer,
monitor, or video reviewer to the
observer, monitor, or video reviewer
and approved monitoring service
provider via certified mail at the
observer’s, monitor’s, or video
reviewer’s most current address
provided to NMFS. The decision shall
identify whether a certification is
revoked and shall identify the specific
reasons for the action taken.
Decertification is effective immediately
as of the date of issuance, unless the
decertification official notes a
compelling reason for maintaining
certification for a specified period and
under specified conditions.
Decertification is the final decision of
NMFS and the Department of Commerce
and may not be appealed.
(j) Coverage. In the event that a vessel
is requested by the Regional
Administrator to carry a fisheries
observer pursuant to paragraph (a) of

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this section and is also selected to carry
an at-sea monitor as part of an approved
sector at-sea monitoring program
specified in paragraph (l) of this section
for the same trip, only the fisheries
observer is required to go on that
particular trip. Vessels using electronic
monitoring to satisfy the groundfish
sector monitoring program requirement
must comply with their vessel
monitoring plan on all trips, including
a trip that has been selected to carry, or
a trip that carries, a fisheries observer.
(k) * * *
(4) * * *
(i) An owner of a scallop vessel
required to carry an observer under
paragraph (k)(3) of this section must
arrange for carrying an observer that has
passed a NMFS-certified Observer
Training class certified by NMFS from
an observer service provider approved
by NMFS under paragraph (h) of this
section. The owner, operator, or vessel
manager of a vessel selected to carry an
observer must contact the observer
service provider and must provide at
least 48-hr notice in advance of the
fishing trip for the provider to arrange
for observer deployment for the
specified trip. The observer service
provider will notify the vessel owner,
operator, or manager within 18 hr
whether they have an available
observer. A list of approved observer
service providers shall be posted on the
NMFS/FSB website: https://
www.fisheries.noaa.gov/resource/data/
observer-providers-northeast-and-midatlantic-programs. The observer service
provider may take up to 48 hr to arrange
for observer deployment for the
specified scallop trip.
(ii) An owner, operator, or vessel
manager of a vessel that cannot procure
an observer within 48 hr of the advance
notification to the provider due to the
unavailability of an observer may
request a waiver from NMFS from the
requirement for observer coverage for
that trip, but only if the owner, operator,
or vessel manager has contacted all of
the available observer service providers
to secure observer coverage and no
observer is available. NMFS shall issue
such a waiver within 24 hr, if the
conditions of this paragraph (k)(4)(ii) are
met. A vessel may not begin the trip
without being issued a waiver.
*
*
*
*
*
(l) NE multispecies observer
coverage—(1) Groundfish sector
monitoring program goals and
objectives. The primary goal of the atsea/electronic monitoring program is to
verify area fished, as well as catch and
discards by species and gear type, in the
most cost-effective means practicable.

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The following goals and objectives of
groundfish monitoring programs are
equally-weighted secondary goals by
which monitoring programs established
for the NE multispecies are to be
designed to be consistent with:
(i) Improve documentation of catch:
(A) Determine total catch and effort,
for each sector and common pool, of
target or regulated species and ocean
pout; and
(B) Achieve coverage level sufficient
to minimize effects of potential
monitoring bias to the extent possible
while maintaining as much flexibility as
possible to enhance fleet viability.
(ii) Reduce the cost of monitoring:
(A) Streamline data management and
eliminate redundancy;
(B) Explore options for cost-sharing
and deferment of cost to industry; and
(C) Recognize opportunity costs of
insufficient monitoring.
(iii) Incentivize reducing discards:
(A) Determine discard rate by smallest
possible strata while maintaining costeffectiveness; and
(B) Collect information by gear type to
accurately calculate discard rates.
(iv) Provide additional data streams
for stock assessments:
(A) Reduce management and/or
biological uncertainty; and
(B) Perform biological sampling if it
may be used to enhance accuracy of
mortality or recruitment calculations.
(v) Enhance safety of monitoring
program.
(vi) Perform periodic review of
monitoring program for effectiveness.
(2) Sector monitoring programs. A
sector must develop and implement an
at-sea and/or electronic monitoring
program that may be approved by NMFS
as both sufficient to monitor catch,
discards, and use of sector ACE; and as
consistent with the sector monitoring
program goals and objectives. The
details of any at-sea or electronic
monitoring program must be specified
in the sector’s operations plan, pursuant
to § 648.87(b)(2)(xi), and must meet the
operational standards specified in
paragraph (l)(10) of this section.
Maximized retention electronic
monitoring and audit electronic
monitoring models, meeting the
requirements in paragraph (l)(10) of this
section, may be used in place of at-sea
monitoring to ensure a sector’s
monitoring programs may be approved.
Other types of electronic monitoring
may be used in place of at-sea monitors
if the technology is deemed sufficient by
NMFS, in a manner consistent with the
Administrative Procedure Act, for a
specific trip type based on gear type and
area fished. The Regional Administrator
will approve or disapprove at-sea/

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electronic programs as part of a sector’s
operations plans in a manner consistent
with the Administrative Procedure Act.
(3) Pre-trip notification. For the
purpose of selecting vessels for observer
or at-sea monitor deployment, as
instructed by the Regional
Administrator, the owner, operator, or
manager of a vessel (i.e., vessel manager
or sector manager) issued a limited
access NE multispecies permit that is
fishing under a NE multispecies DAS or
on a sector trip, as defined in this part,
must provide advance notice to NMFS
at least 48 hr prior to departing port on
any trip declared into the NE
multispecies fishery pursuant to
§ 648.10 or § 648.85 of the following:
The vessel name, permit number, and
sector to which the vessel belongs, if
applicable; contact name and telephone
number for coordination of observer or
at-sea monitor deployment; date, time,
and port of departure; and the vessel’s
trip plan, including area to be fished,
whether a monkfish DAS will be used,
and gear type to be used, unless
otherwise specified in this paragraph (l)
or notified by the Regional
Administrator. For trips lasting 48 hr or
less in duration from the time the vessel
leaves port to begin a fishing trip until
the time the vessel returns to port upon
the completion of the fishing trip, the
vessel owner, operator, or manager may
make a weekly notification rather than
trip-by-trip calls. For weekly pre-trip
notification, a vessel must notify NMFS
by 0001 hr of the Friday preceding the
week (Sunday through Saturday) that it
intends to complete at least one NE
multispecies DAS or sector trip during
the following week and provide the
vessel’s trip-plans for that week,
including each trip’s date, time, port of
departure, area to be fished, whether a
monkfish DAS will be used, and gear
type to be used. Pre-trip notification
calls must be made no more than 10
days in advance of each fishing trip. The
vessel owner, operator, or manager must
notify NMFS of any trip plan changes at
least 24 hr prior to vessel departure
from port. A vessel may not begin the
trip without being issued either an
observer notification, an at-sea monitor
notification, or a waiver by NMFS.
(4) Vessel selection for observer or atsea monitor coverage. NMFS shall
notify the vessel owner, operator, or
manager whether the vessel must carry
an observer or at-sea monitor for the
specified trip within 24 hr of the vessel
owner’s, operator’s or manager’s pre-trip
notification of the prospective trip, as
specified in paragraph (l)(2) of this
section. All pre-trip notifications shall
be issued a unique confirmation
number. A vessel may not fish on a NE

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multispecies DAS or sector trip with an
observer waiver confirmation number
that does not match the vessel’s trip
plan that was called in to NMFS.
Confirmation numbers and the vessel’s
observer or observer waiver status for
pre-trip notification calls remain valid
for 48 hr from the intended sail date.
After a trip begins, that trip’s
confirmation number and observer or
observer waiver status remains valid
until the trip ends. If a trip is
interrupted and the vessel returns to
port due to bad weather or other
circumstance beyond the operator’s
control, the vessel’s observer or observer
waiver status and confirmation number
for the interrupted trip remains the
same if the vessel departs within 48 hr
from the vessel’s return to port. If the
layover time is greater than 48 hr, the
vessel owner, operator, or manager must
provide a new pre-trip notification. If an
observer or at-sea monitor is assigned to
a particular trip, a vessel may not leave
port without the at-sea monitor on
board, unless NMFS issues a waiver. If
a vessel is using electronic monitoring
to comply with the monitoring
requirements of this part, it may not
leave port without an operational
electronic monitoring system on board,
unless NMFS issues a waiver.
(5) Sector monitoring coverage levels.
Coverage levels for an at-sea or
electronic monitoring program,
including video review requirements,
shall be specified by NMFS, pursuant to
paragraph (l)(5)(i) of this section.
(i) At-sea monitoring coverage target.
The at-sea monitoring coverage target
for the sector monitoring program will
be set as a percentage of all eligible
sector trips based on available Federal
funding for NMFS and industry cost
responsibilities as defined in paragraph
(g)(3) of this section. Sectors are
responsible for industry costs for at-sea
monitoring coverage up to the coverage
target for all trips not observed by a
Northeast Fishery Observer Program
observer. In fishing years 2022, 2023,
2024, and 2025, the at-sea monitoring
(ASM) coverage target will be set at the
highest level that available Federal
funding for NMFS and industry cost
responsibilities supports, up to 100
percent of trips. Beginning in fishing
year 2026, the target coverage will be set
at 40 percent of trips, unless replaced by
the New England Fishery Management
Council after a review, as detailed in
paragraph (l)(5)(v) of this section. In the
absence of available Federal funds
sufficient to fund both NMFS costs and
industry costs associated with a
coverage target of at least 40 percent of
all sector trips, sectors must pay the
industry’s costs for coverage necessary

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to achieve a 40-percent coverage target.
As an example, if, after paying NMFS
costs, available Federal funding is
sufficient only to fund industry costs for
15-percent coverage, sectors must pay
the industry costs for the remaining 25percent coverage to achieve a 40-percent
coverage target. Any coverage provided
by the Northeast Fisheries Observer
Program through deployment of an
observer would be deducted from the
industry’s cost responsibility. To ensure
coverage is both sufficient to monitor
sector catch, discards, and sector ACE;
and consistent with sector monitoring
goals and objectives, at-sea monitoring
coverage may be higher than the at-sea
monitoring coverage target, up to 100
percent of all eligible trips, if available
Federal funding is sufficient for NMFS
and industry cost responsibilities,
respectively. NMFS will announce the
coverage target at least 3 weeks before
the annual sector enrollment deadline
set by NMFS, if Federal funding
information is available. NMFS will
determine, and announce, EM video
review rates separately from the ASM
coverage target. NMFS may evaluate and
modify video review rates on a regular
basis.
(ii) Gear-based exclusion from the atsea monitoring program. A sector vessel
that notifies NMFS of its intent to
exclusively fish using gillnets with a
mesh size of 10-inch (25.4-cm) or greater
in either the Inshore Georges Bank (GB)
Stock Area, as defined at
§ 648.10(k)(3)(ii), and/or the Southern
New England (SNE) Broad Stock Area,
as defined at § 648.10(k)(3)(iv), is not
subject to the coverage level for at-sea
monitoring specified in paragraph
(l)(5)(i) of this section provided that the
trip is limited to the Inshore GB and/or
SNE Broad Stock Areas and that the
vessel only uses gillnets with a mesh
size of 10-inches (25.4-cm) or greater.
When on such a trip, other gear may be
on board provided that it is stowed and
not available for immediate use as
defined in § 648.2. A sector trip fishing
with 10-inch (25.4-cm) mesh or larger
gillnets will still be subject to at-sea
monitoring coverage if the trip declares
its intent to fish in any part of the trip
in the Gulf of Maine (GOM) Stock area,
as defined at § 648.10(k)(3)(i), or the
Offshore GB Stock Area, as defined at
§ 648.10(k)(3)(iii). Vessels using
electronic monitoring to satisfy the
sector monitoring requirement in this
section must have their system turned
on and comply with their vessel
monitoring plan on all trips, including
a trip that is limited to the Inshore GB
and/or SNE Broad Stock Areas where

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the vessel only uses gillnets with a mesh
size of 10-inches (25.4-cm) or greater.
(iii) Geographic exclusion from the atsea monitoring program. Vessels fishing
exclusively west of 71°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 atsea monitoring requirement under this
paragraph (l)(5)(iii) must comply with
the VMS declaration requirements at
§ 648.10(g)(3), and the transiting
requirements at § 648.81(e) when east of
71°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°30′
W Longitude.
(iv) Waivers. In addition to the safety
waivers in paragraph (c) of this section,
NMFS may issue a waiver for a sector
trip exempting the vessel from the
sector monitoring program coverage
requirements for the following reasons.
(A) Funding waivers. NMFS will issue
a waiver for a sector trip exempting the
vessel from the sector monitoring
program coverage requirements if
coverage is unavailable due to
insufficient funding for NMFS cost
responsibilities as defined in paragraph
(g)(3) of this section.
(B) Logistics waivers. NMFS may issue
a waiver for a sector trip exempting the
vessel from the sector monitoring
program coverage requirements in this
section for logistical and technical
reasons, including, but not limited to:
No monitor is available; the assigned
observer is unable to make the trip; the
trip will have no fishing effort; and
electronic monitoring system technical
problems.
(C) Set-only trip waivers. Vessels on a
set-only trip, as defined at § 648.2, are
excluded from the groundfish sector
monitoring program requirements in
paragraph (l) of this section. If a vessel
is using electronic monitoring to comply
with the monitoring requirements of
this part, that vessel may turn off its
cameras on a set-only trip.
(v) Review of exclusions from the atsea monitoring program. A New
England Fishery Management Council
review of the exclusions from the at-sea
monitoring program in paragraphs
(l)(5)(ii) and (iii) of this section will
evaluate whether the exclusions
continue to meet the intent of the New
England Fishery Management Council
to exclude trips with little catch of
regulated species and ocean pout. The
review will be conducted using
complete data from 2 fishing years once
the data are available (fishing years 2022

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and 2023) and every 3 years after the
initial review.
(6) Groundfish sector monitoring
program review. A New England Fishery
Management Council review of the NE
multispecies monitoring program will
evaluate whether the monitoring
program is meeting the goal of improved
accuracy of catch data, while
maximizing value and minimizing costs
of the program, using complete data
from 2 fishing years once the data are
available (fishing years 2022 and 2023)
and periodically after the initial review.
The review process should be flexible
and general, and include establishing
metrics and indicators of how well the
monitoring program improved accuracy
while maximizing value and
minimizing costs.
(7) Hail reports. For the purposes of
the monitoring requirements specified
in paragraph (l)(2) of this section, sector
vessels must submit all hail reports for
a sector trip in which the NE
multispecies catch applies against the
ACE allocated to a sector, as specified
in this part, to their respective
contracted monitoring service providers.
The mechanism and timing of the
transmission of such hail reports must
be consistent with instructions provided
by the Regional Administrator for any
at-sea or electronic monitoring program
required by paragraph (l)(2) of this
section, or specified in the annual sector
operations plan, consistent with
§ 648.87(b)(5).
(8) Notification of monitoring service
provider change. If, for any reason, a
sector decides to change approved
service providers used to provide at-sea
or electronic monitoring services
required in paragraph (l)(2) of this
section, the sector manager must first
inform NMFS in writing in advance of
the effective date of the change in
approved monitoring service providers
in conjunction with the submission of
the next weekly sector catch report
specified in § 648.87(b)(1)(v)(B). A
sector may use more than one
monitoring service provider at any time,
provided any monitoring service
provider employed by or contracted
with a sector meets the standards
specified in paragraph (b)(4) of this
section.
(9) Discards. A sector vessel may not
discard any legal-sized regulated species
or ocean pout allocated to sectors
pursuant to § 648.87(b)(1)(i), unless
otherwise required pursuant to
§ 648.86(l). Discards of undersized
regulated species or ocean pout by a
sector vessel must be reported to NMFS
consistent with the reporting
requirements specified in
§ 648.87(b)(1)(v). Discards shall not be

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included in the information used to
calculate a vessel’s PSC, as described in
§ 648.87(b)(1)(i)(E), but shall be counted
against a sector’s ACE for each regulated
species allocated to a sector.
(10) Sector monitoring program
operational standards. In addition to the
monitoring service provider standards
specified in paragraph (h)(5) of this
section, any at-sea/electronic
monitoring program developed as part
of a sector’s yearly operations plan
pursuant to paragraph (l)(2) of this
section must meet the following
operational standards to be approved by
NMFS:
(i) Vessel requirements—(A)
Electronic monitoring system
requirements. A vessel owner or
operator using electronic monitoring to
meet sector monitoring requirements in
this section must do the following:
(1) Ensure that the electronic
monitoring system is fully operational
for every sector trip, which means it is
operating, recording, and retaining the
recording for the duration of every trip.
A vessel may not fish without a fully
operational electronic monitoring
system, unless issued a waiver by NMFS
for that trip;
(2) Conduct a system check of the
electronic monitoring system prior to
departing on a fishing trip. An
electronic monitoring system check
must show that the electronic
monitoring system is fully operational
and the amount of video storage space
available to record the fishing trip;
(3) Maintain clear and unobstructed
camera views at all times. Ensure
lighting is sufficient in all
circumstances to illuminate catch so
that catch and discards are visible and
may be identified and quantified as
required; and
(4) Ensure no person tampers with,
disconnects, or destroys any part of the
electronic monitoring system, associated
equipment, or recorded data.
(B) Vessel monitoring plan
requirements for electronic monitoring
vessels. A vessel must have a NMFSapproved vessel monitoring plan to use
electronic monitoring to meet sector
monitoring requirements in this section.
NMFS will approve a vessel monitoring
plan that sufficiently describes how the
electronic monitoring system is
configured on a particular vessel
applying for approval and how the
fishing and monitoring operations will
be conducted in a manner to effectively
monitor catch in accordance with the
EM program requirements and
standards in this section. Vessels must
submit vessel monitoring plans and
revisions to vessel monitoring plans for
NMFS review and approval, as

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instructed by the Regional
Administrator.
(1) The vessel monitoring plan must
be onboard the vessel at all times.
(2) The vessel owner, operator and
crew must comply with all catch
handling protocols and other
requirements described in the vessel
monitoring plan, including sorting catch
and processing any discards within
view of the cameras and consistent with
the vessel monitoring plan.
(3) Modifications to any vessel
monitoring plan must be approved by
NMFS prior to such vessel fishing under
the conditions of the new vessel
monitoring plan.
(4) A vessel owner or operator using
electronic monitoring to meet sector
monitoring requirements in this section
must submit all electronic monitoring
data to the monitoring service provider
in accordance with the electronic
monitoring program requirements in
this section, or as otherwise instructed
by the Regional Administrator.
(5) A vessel owner or operator must
make the electronic monitoring system,
associated equipment, electronic
monitoring data, or vessel monitoring
plan available to NMFS for inspection,
upon request.
(6) A vessel owner or operator using
electronic monitoring to meet sector
monitoring requirements in this section
must turn on its camera for 100 percent
of sector trips.
(7) A vessel owner or operator using
electronic monitoring to meet sector
monitoring requirements in this section
must comply with the requirements in
paragraphs (l)(10)(i)(A) and (B) of this
section or the Regional Administrator
may withdraw approval for the vessel to
use electronic monitoring.
(8) The Regional Administrator may
revise vessel monitoring plan
requirements and approval standards in
this section consistent with the
Administrative Procedure Act. Any
revisions will be published on the
agency’s website.
(C) Safety hazards. The operator of a
sector vessel must detail and identify
any safety hazards to any at-sea monitor
assigned pursuant to paragraph (l)(2) of
this section prior to leaving port. A
vessel may not begin a trip if it has
failed a review of safety issues pursuant
to paragraph (l)(10)(ii)(D) of this section,
until the identified safety deficiency has
been resolved, pursuant to § 600.746(i)
of this chapter.
(D) Dockside monitoring. Vessels
using maximized retention electronic
monitoring must participate in either an
independent third party dockside
monitoring program approved by
NMFS, or the dockside monitoring

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program operated by NMFS, as
instructed by NMFS.
(1) The vessel operator and crew may
not begin offloading unless a dockside
monitor is present or NMFS has issued
the trip a waiver from the dockside
monitoring program.
(2) The vessel operator and crew must
allow the dockside monitor access to the
fish hold immediately following the
offload in order to confirm all allocated
groundfish were offloaded unless NMFS
has issued the trip a waiver from the
dockside monitoring program.
(E) Retention of fish. Vessels using
maximized retention electronic
monitoring must retain all fish from
each allocated regulated species,
regardless of length.
(ii) Sector monitoring plan monitoring
service provider requirements. In
addition to the monitoring service
provider standards in paragraph (h) of
this section, sector monitoring plans
must include the following operational
requirements for any monitoring
provider contracted to meet sector
monitoring program requirements in
this paragraph (l):
(A) At-sea monitoring report. Within
48 hours of the completion of a trip, or
as otherwise instructed by the Regional
Administrator, electronic submission to
NMFS and the sector a report detailing
the area fished and the amount of each
species kept and discarded. A standard
format for submission shall be specified
by NMFS and distributed to all
monitoring service providers and
sectors. NMFS will accept only
monitoring data that passes automated
NMFS data quality checks.
(B) Electronic monitoring report. A
report detailing area fished and the
amount of each species discarded must
be submitted electronically in a
standard acceptable form to the
appropriate sector and NMFS within 10
business days of a trip being selected for
video review, or as otherwise instructed
by the Regional Administrator. The
format for submission shall be specified
by NMFS and distributed to all
monitoring service providers and
sectors. NMFS will accept only
monitoring data that passes automated
NMFS data quality checks.
(C) Vessel feedback report. A report
must be submitted to the vessel owner
following a trip with detailed feedback
on the vessel operator’s and crew’s
catch handling, camera maintenance,
and vessel monitoring plan compliance.
A copy must be submitted to NMFS
upon request.
(D) Safety hazards. Completion by an
at-sea monitor of a pre-trip vessel safety
checklist provided by NMFS before an
at-sea monitor can leave port onboard a

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vessel on a sector trip. If the vessel fails
a review of safety issues pursuant to this
paragraph (l)(10)(ii)(D), an at-sea
monitor cannot be deployed on that
vessel for that trip.
(E) Gear. Provision of all equipment
specified by the Northeast Fisheries
Science Center to each at-sea monitor
before the at-sea monitor may be
deployed on a vessel. A list of such
equipment is available from the
Northeast Fisheries Science Center upon
request. This gear shall be inspected by
NMFS upon the completion of training
required pursuant to paragraph (i)(2) of
this section.
(F) Adjustment to service provider
requirements and approval standards.
The Regional Administrator may revise
monitoring service provider
requirements and approval standards in
this section consistent with the
Administrative Procedure Act.
(iii) Sector requirements. Each sector
shall monitor catch by participating
sector vessels to ensure that ACEs are
not exceeded during the fishing year, as
specified in this paragraph (l)(10)(iii).
The sector shall summarize trips
validated by dealer reports; oversee the
use of electronic monitoring equipment
and review of associated data; maintain
a database of VTR, dealer, observer, and
electronic monitoring reports; determine
all species landings by stock areas;
apply discard estimates to landings;
deduct catch from ACEs allocated to
sectors; and report sector catch on a
weekly basis to NMFS, as required in
paragraph (b)(1)(v) of this section.
Unless otherwise specified in this
paragraph (l)(10), all catches of stocks
allocated to sectors by vessels on a
sector trip shall be deducted from the
sector’s ACE for each regulated species
stock regardless of the fishery the vessel
was participating in when the fish was
caught. For the purposes of this
paragraph (l)(10), any regulated species
or ocean pout caught using gear capable
of catching NE multispecies (i.e., gear
not listed as exempted gear under this
part) would be deducted from a sector’s
ACE if such catch contributed to the
specification of PSC, as described in
§ 648.87(b)(1)(i)(E), and would not apply
to another ACL sub-component
pursuant to § 648.90(a)(4). For example,
any regulated species or ocean pout
landed while fishing for or catching
skates or monkfish pursuant to the
regulations in this chapter for those
fisheries would be deducted from the
sector’s ACE for each stock because
such regulated species or ocean pout
were caught while also operating under
a NE multispecies DAS. However, for
example, if a sector vessel is issued a
limited access General Category Atlantic

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Federal Register / Vol. 87, No. 236 / Friday, December 9, 2022 / Rules and Regulations
Sea Scallop permit and fishes for
scallops under the provisions specific to
that permit, any yellowtail flounder
caught by the vessel on such trips
would be deducted from the appropriate
non-groundfish component, such as the
other sub-component or the appropriate
yellowtail flounder stock’s ACL
specified for the Atlantic Sea Scallop
fishery and not from the yellowtail
flounder ACE for the sector.
(iv) Dealer requirements. Federally
permitted NE multispecies dealers must
allow dockside monitors access to their
premises, scales, and any fish received
from vessels participating in the
maximized retention electronic
monitoring program for the purpose of
collecting fish species and weights of
fish received by the dealer, fish length
measurements, and the collection of age
structures such as otoliths or scales.
(A) Facilitation. Federally permitted
NE multispecies dealers must facilitate
dockside monitoring for vessels
participating in a maximized retention
electronic monitoring program,
including, but not limited to, the
following requirements:
(1) Provide a safe sampling station,
including shelter from weather, for
dockside monitors to conduct their
duties and process catch, that is
equivalent to the accommodations
provided to the dealer’s staff.
(2) Allow dockside monitors access to
bathrooms equivalent to the
accommodations provided to the
dealer’s staff.
(3) Allow dockside monitors access to
any facilities for washing equipment
with fresh water that are provided to the
dealer’s staff.
(B) Processing, sorting, labeling, and
reporting. Federally permitted NE
multispecies dealers must process, and
may possess, fish for vessels
participating in a maximized retention
electronic monitoring program
consistent with and including, but not
limited to, the following requirements:
(1) Offload from vessels participating
in the maximized retention monitoring
program all fish below the minimum
size specified at § 648.83, report fish
below the minimum size specified at
§ 648.83 by species, and provide the
dockside monitor access to those fish
below the minimum size at the safe
sampling station.
(2) Sort by species all unmarketable
fish from other fish, when identifiable to
species.
(3) Clearly identify, mark, or label all
containers with fish below the
minimum size specified in § 648.83 as
containing undersized fish, the fishing
vessel from which they were offloaded,
and the date of offloading.

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(4) Report all fish below the minimum
size specified in § 648.83, and all
unmarketable fish, as instructed by
NMFS.
(v) Adjustment to operational
standards. The at-sea/electronic
monitoring operational standards
specified in paragraph (l)(10) of this
section may be revised by the Regional
Administrator in a manner consistent
with the Administrative Procedure Act.
(m) * * *
(1) * * *
(i) In addition to the requirement for
any vessel holding an Atlantic herring
permit to carry an observer described in
paragraph (a) of this section, vessels
issued a Category A or B Herring Permit
are subject to industry-funded
monitoring (IFM) requirements in this
section on declared Atlantic herring
trips, unless the vessel is carrying an
observer to fulfill Standard Bycatch
Reporting Methodology requirements in
§ 648.18. An owner of a midwater trawl
vessel, required to carry an observer
when fishing in Northeast Multispecies
Closed Areas at § 648.202(b), may
purchase an IFM high volume fisheries
(HVF) observer to access Closed Areas
on a trip-by-trip basis. General
requirements for IFM programs in New
England Council FMPs are specified in
paragraph (g) of this section. Possible
IFM monitoring for the Atlantic herring
fishery includes observers, at-sea
monitors, and electronic monitoring and
portside samplers, as defined in § 648.2.
*
*
*
*
*
(v) To provide the required IFM
coverage aboard declared Atlantic
herring trips, observers and monitors
must hold a high volume fisheries
certification from NMFS.
(2) * * *
(iii) * * *
(A) For IFM observer coverage aboard
vessels fishing with midwater trawl gear
to access the Northeast Multispecies
Closed Areas, consistent with
requirements at § 648.202(b), at any
point during the trip;
*
*
*
*
*
(4) * * *
(i) An owner of an Atlantic herring
vessel required to have monitoring
under paragraph (m)(3) of this section
must arrange for monitoring by an
observer from a monitoring service
provider approved by NMFS under
paragraph (h) of this section. The owner,
operator, or vessel manager of a vessel
selected for monitoring must contact a
monitoring service provider prior to the
beginning of the trip and the monitoring
service provider will notify the vessel
owner, operator, or manager whether
monitoring is available. A list of

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75885

approved monitoring service providers
shall be posted on the NMFS website:
https://www.fisheries.noaa.gov/
resource/data/observer-providersnortheast-and-mid-atlantic-programs.
*
*
*
*
*
(6) Sampling requirements for
observers and monitors. In addition to
the requirements in paragraphs (d)(1)
through (7) of this section, an owner or
operator of a vessel issued a limited
access herring permit on which an
observer or monitor is embarked must
provide observers or monitors:
*
*
*
*
*
(n) * * *
(2) Sampling requirements for limited
access Atlantic mackerel and longfin
squid/butterfish moratorium permit
holders. In addition to the requirements
in paragraphs (d)(1) through (7) of this
section, an owner or operator of a vessel
issued a limited access Atlantic
mackerel or longfin squid/butterfish
moratorium permit on which an
observer is embarked must provide
observers:
*
*
*
*
*
■ 6. Effective January 9, 2023, amend
§ 648.14 by:
■ a. Revising paragraph (a)(7);
■ b. Removing the heading from
paragraph (a)(10);
■ c. Revising paragraphs (e), (i)(1)(ix)(B),
(k)(3), and (k)(14)(ix) through (xiii);
■ d. Adding paragraphs (k)(14)(xiv)
through (xvi); and
■ e. Revising paragraph (r)(2)(v).
The revisions and additions read as
follows:
§ 648.14

Prohibitions.

(a) * * *
(7) Possess, import, export, transfer,
land, or have custody or control of any
species of fish regulated pursuant to this
part that do not meet the minimum size
provisions in this part, unless such
species were harvested exclusively
within state waters by a vessel that does
not hold a valid permit under this part,
or are species included in the NE
Multispecies Fishery Management Plan
that were either harvested by a vessel
participating in the maximized retention
electronic monitoring program
consistent with § 648.11(l)(10)(i)(E) or
harvested by a vessel issued a valid
High Seas Fishing Compliance permit
that fished exclusively in the NAFO
Regulatory Area.
*
*
*
*
*
(e) Observer program. It is unlawful
for any person to do any of the
following:
(1) Assault, resist, oppose, impede,
harass, intimidate, or interfere with or
bar by command, impediment, threat, or

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

coercion any observer or monitor
conducting his or her duties; any
electronic monitoring provider staff who
collects data required under this part;
any authorized officer conducting any
search, inspection, investigation, or
seizure in connection with enforcement
of this part; any official designee of the
Regional Administrator conducting his
or her duties, including those duties
authorized in §§ 648.7(g) and
648.11(l)(10)(v).
(2) Refuse monitoring coverage by an
observer or monitor if selected for
monitoring coverage by the Regional
Administrator or the Regional
Administrator’s designee.
(3) Fail to provide information,
notification, accommodations, access, or
reasonable assistance to an observer,
monitor, or electronic monitoring
provider staff conducting his or her
duties as specified in § 648.11.
(4) Submit false or inaccurate data,
statements, or reports.
*
*
*
*
*
(i) * * *
(1) * * *
(ix) * * *
(B) Fail to provide information,
notification, accommodations, access, or
reasonable assistance to an observer
conducting his or her duties aboard a
vessel, as specified in § 648.11.
*
*
*
*
*
(k) * * *
(3) Dealer requirements. It is unlawful
for any person to:
(i) Purchase, possess, import, export,
or receive as a dealer, or in the capacity
of a dealer, allocated regulated species
or ocean pout in excess of the
possession limits specified in § 648.82,
§ 648.85, § 648.86, or § 648.87
applicable to a vessel issued a NE
multispecies permit, unless otherwise
specified in § 648.17, or unless the
regulated species or ocean pout are
purchased or received from a vessel that
caught them on a sector trip and such
species are exempt from such
possession limits in accordance with an
approved sector operations plan, as
specified in § 648.87(c).
(ii) Sell or transfer to another person
for a commercial purpose, other than
solely for transport on land, any NE
multispecies harvested from the EEZ by
a vessel issued a Federal NE
multispecies permit, unless the
transferee has a valid NE multispecies
dealer permit.
(iii) Purchase, possess, import, export,
or receive as a dealer, or in the capacity
of a dealer, allocated regulated species
from a vessel participating in the
maximized retention electronic
monitoring program in § 648.11(l)

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unless the offload of catch was observed
by a dockside monitor or NMFS issued
a waiver from dockside monitoring for
the trip.
(iv) Assault, resist, oppose, impede,
harass, intimidate, or interfere with or
bar by command, impediment, threat, or
coercion any observer or monitor
conducting his or her duties or any
electronic monitoring provider staff who
collects data required under this part.
(v) Impede a dockside monitor’s
access to their premises, scales, and any
fish received from vessels participating
in the maximized retention electronic
monitoring program; fail to facilitate
dockside monitoring for vessels
participating in a maximized retention
electronic monitoring program; or fail to
process, sort, label, and report fish from
vessels participating in the maximized
retention monitoring program, as
required in § 648.11(l)(10)(iv).
*
*
*
*
*
(14) * * *
(ix) Fail to comply with the reporting
requirements specified in
§§ 648.11(l)(10)(iii) and 648.87(b)(1)(v).
(x) Leave port to begin a trip before an
at-sea monitor has arrived and boarded
the vessel if assigned to carry an at-sea
monitor for that trip, or without an
operational electronic monitoring
system installed on board, as specified
in § 648.11(l)(3) and (l)(10)(i).
(xi) Leave port to begin a trip if a
vessel has failed a review of safety
issues by an at-sea monitor and has not
successfully resolved any identified
safety deficiencies, as prohibited by
§ 648.11(l)(10)(i)(C).
(xii) Fail to comply with the
electronic monitoring system
requirements as specified in
§ 648.11(l)(10)(i)(A), including, but not
limited to: ensuring the electronic
monitoring system is fully operational;
conducting a system check of the
electronic monitoring system; ensuring
camera views are unobstructed and
clear; and ensuring that no person
tampers with the electronic monitoring
system.
(xiii) Fail to comply with the vessel
monitoring plan requirements as
specified in § 648.11(l)(10)(i)(B),
including, but not limited to: carrying
the vessel monitoring plan onboard the
vessel at all times; complying with all
catch handling protocols and other
requirements in the vessel monitoring
plan; submitting electronic monitoring
data as required; and making the
electronic monitoring system available
to NMFS for inspection upon request.
(xiv) Offload fish without a dockside
monitor present or without a waiver
issued by NMFS when participating in

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the maximized retention electronic
monitoring program.
(xv) Resist, oppose, impede, harass,
intimidate, or interfere with or bar by
command, impediment, threat, or
coercion any dockside monitor
conducting his or her duty to inspect a
fish hold after offload.
(xvi) Fish under a waiver from the
groundfish sector monitoring program
issued under § 648.11(l)(5)(ii) or (iii)
without complying with the
requirements of § 648.11(l)(5)(ii) or (iii),
respectively; the VMS declaration
requirements at § 648.10; and the pretrip notification requirements at
§ 648.11(l)(1).
*
*
*
*
*
(r) * * *
(2) * * *
(v) Fish with midwater trawl gear in
any Northeast Multispecies Closed Area,
as defined in § 648.81(a)(3) through (5)
and (c)(3) and (4), without an observer
on board, if the vessel has been issued
an Atlantic herring permit.
*
*
*
*
*
■ 7. Effective January 9, 2023, amend
§ 648.51 by revising paragraphs (c)(4)
and (e)(3)(iii) to read as follows:
§ 648.51

Gear and crew restrictions.

*

*
*
*
*
(c) * * *
(4) An at-sea observer is on board, as
required by § 648.11(k).
*
*
*
*
*
(e) * * *
(3) * * *
(iii) An at-sea observer is on board, as
required by § 648.11(k).
*
*
*
*
*
■ 8. Effective January 9, 2023, amend
§ 648.80 by revising paragraphs (d)(3)
and (e)(2)(ii) to read as follows:
§ 648.80 NE Multispecies regulated mesh
areas and restrictions on gear and methods
of fishing.

*

*
*
*
*
(d) * * *
(3) The vessel carries an observer, if
requested by the Regional
Administrator;
*
*
*
*
*
(e) * * *
(2) * * *
(ii) The vessel carries an observer, if
requested by the Regional
Administrator;
*
*
*
*
*
■ 9. Effective January 9, 2023, amend
§ 648.83 by revising paragraph (a)(1) to
read as follows:
§ 648.83

Multispecies minimum fish sizes.

(a) * * *
(1) Minimum fish sizes for
recreational vessels and charter/party

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Federal Register / Vol. 87, No. 236 / Friday, December 9, 2022 / Rules and Regulations
vessels that are not fishing under a NE
multispecies DAS are specified in
§ 648.89. Except as provided in
§§ 648.11(l)(10)(i)(E) and 648.17, all
other vessels are subject to the following
minimum fish sizes, determined by total
length (TL):

TABLE 1 TO PARAGRAPH (a)(1)—MINIMUM FISH SIZES (TL) FOR COMMERCIAL VESSELS
Species
Cod .................................
Haddock .........................
Pollock ............................
Witch flounder (gray
sole).
Yellowtail flounder ..........
American plaice (dab) ....
Atlantic halibut ................
Winter flounder
(blackback).
Redfish ...........................

Size in inches
19
16
19
13

(48.3 cm).
(40.6 cm).
(48.3 cm).
(33 cm).

12
12
41
12

(30.5 cm).
(30.5 cm).
(104.1 cm).
(30.5 cm).

7 (17.8 cm).

*

*
*
*
*
10. Effective January 9, 2023, amend
§ 648.85 by revising paragraph
(e)(1)(viii)(C) to read as follows:

■

§ 648.85

Special management programs.

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*

*
*
*
*
(e) * * *
(1) * * *
(viii) * * *
(C) Administration of thresholds. (1)
For the purpose of determining a
sector’s monthly redfish landings
threshold performance described in
paragraph (e)(1)(viii)(A)(1) of this
section and the annual redfish landings
threshold described in paragraph
(e)(1)(viii)(B)(1) of this section, landings
of allocated regulated species by vessels
participating in a maximized retention
electronic monitoring program
consistent with § 648.11(l), including
landings of allocated stocks below the
minimum size at § 648.83(a)(1), will be
counted as landings and not discards.
(2) For the purpose of determining a
sector’s monthly discards threshold
performance described in paragraph
(e)(1)(viii)(A)(2) of this section, a trip by
a vessel participating in a maximized
retention electronic monitoring program
consistent with § 648.11(l) will be
excluded from evaluation of the
monthly discard threshold.
(3) If a sector fails to meet the
monthly redfish landings threshold or
the monthly discards threshold
described in paragraphs (e)(1)(viii)(A)(1)
and (2) of this section for four or more
months total, or three or more
consecutive months, in a fishing year,
the Regional Administrator shall
prohibit all vessels in that sector from
fishing under the provisions of the

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Redfish Exemption Program for the
remainder of the fishing year, and place
the sector and its vessels in a
probationary status for one fishing year
beginning the following fishing year.
(4) If a sector fails to meet the annual
redfish landings threshold described in
paragraph (e)(1)(viii)(B)(1) of this
section in a fishing year, the Regional
Administrator shall place the sector and
its vessels in a probationary status for
one fishing year beginning the following
fishing year.
(5) While in probationary status as
described in paragraph (e)(1)(viii)(C)(3)
or (4) of this section, if the sector fails
to meet the monthly redfish landings
threshold or the monthly discards
threshold described in paragraphs
(e)(1)(viii)(A)(1) and (2) of this section
for four or more months total, or three
or more consecutive months, in that
fishing year, the Regional Administrator
shall prohibit all vessels in that sector
from fishing under the provisions of the
Redfish Exemption Program for the
remainder of the fishing year and the
following fishing year.
(6) If a sector fails to meet the annual
redfish landings threshold in paragraph
(e)(1)(viii)(B)(1) of this section for any
fishing year during which the sector is
in a probationary status as described in
paragraph (e)(1)(viii)(C)(3) or (4) of this
section, the Regional Administrator
shall prohibit all vessels in that sector
from fishing under the provisions of the
Redfish Exemption Program for the
following fishing year.
(7) The Regional Administrator may
determine a sector has failed to meet
required monthly or annual thresholds
described in paragraphs (e)(1)(viii)(A)
and (B) of this section using available
information including, but not limited
to, vessel declarations and notifications,
vessel trip reports, dealer reports, and
observer and electronic monitoring
records.
(8) The Regional Administrator shall
notify a sector of a failure to meet the
required monthly or annual thresholds
and the sector’s vessels prohibition or
probation status consistent with the
provisions in paragraphs
(e)(1)(viii)(C)(1) through (7) of this
section. The Regional Administrator
shall also make administrative
amendments to the approved sector
operations plan and issue sector vessel
letters of authorization consistent with
the provisions in paragraphs
(e)(1)(viii)(C)(1) through (7) of this
section. These administrative
amendments may be made during a
fishing year or during the sector
operations plan and sector contract
approval process.

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75887

(9) A sector may request in writing
that the Regional Administrator review
and reverse a determination made under
the provisions of this section within 30
days of the date of the Regional
Administrator’s determination. Any
such request must be based on
information showing the sector
complied with the required thresholds,
including, but not limited to, landing,
discard, observer or electronic
monitoring records. The Regional
Administrator will review and maintain
or reverse the determination and notify
the sector of this decision in writing.
Any determination resulting from a
review conducted under this paragraph
(e)(1)(viii)(C)(9) is final and may not be
reviewed further.
*
*
*
*
*
■ 11. Effective January 9, 2023, amend
§ 648.86 by revising the introductory
text and paragraph (a)(3)(ii)(A)(1) to
read as follows:
§ 648.86 NE Multispecies possession
restrictions.

Except as provided in §§ 648.11(l) and
648.17, or elsewhere in this part, the
following possession restrictions apply:
(a) * * *
(3) * * *
(ii) * * *
(A) * * *
(1) Haddock incidental catch cap.
When the Regional Administrator has
determined that the incidental catch
allowance for a given haddock stock, as
specified in § 648.90(a)(4)(iii)(D), has
been caught, no vessel issued an
Atlantic herring permit and fishing with
midwater trawl gear in the applicable
stock area, i.e., the Herring GOM
Haddock Accountability Measure (AM)
Area or Herring GB Haddock AM Area,
as defined in paragraphs (a)(3)(ii)(A)(2)
and (3) of this section, may fish for,
possess, or land herring in excess of
2,000 lb (907.2 kg) per trip in or from
that area, unless all herring possessed
and landed by the vessel were caught
outside the applicable AM Area and the
vessel’s gear is stowed and not available
for immediate use as defined in § 648.2
while transiting the AM Area. Upon this
determination, the haddock possession
limit is reduced to 0 lb (0 kg) for a vessel
issued a Federal Atlantic herring permit
and fishing with midwater trawl gear or
for a vessel issued a Category A or B
Herring Permit fishing on a declared
herring trip, regardless of area fished or
gear used, in the applicable AM Area,
unless the vessel also possesses a NE
multispecies permit and is operating on
a declared (consistent with § 648.10(g))
NE multispecies trip. In making this
determination, the Regional
Administrator shall use haddock

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catches observed by observers or
monitors by herring vessel trips using
midwater trawl gear in Management
Areas 1A, 1B, and/or 3, as defined in
§ 648.200(f)(1) and (3), expanded to an
estimate of total haddock catch for all
such trips in a given haddock stock area.
*
*
*
*
*
■ 12. Effective January 9, 2023, amend
§ 648.87 by:
■ a. Revising paragraph (b)(1)
introductory text and (b)(1)(v) through
(viii);
■ b. Removing paragraph (b)(1)(ix);
■ c. Revising paragraph (b)(2) and (3);
and
■ d. Removing paragraphs (b)(4) and (5).
The revisions read as follows:
§ 648.87

Sector allocation.

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*

*
*
*
*
(b) * * *
(1) All sectors approved under the
provisions of paragraph (a) of this
section must submit the documents
specified in paragraphs (a)(1) and (b)(2)
and (3) of this section, comply with the
conditions and restrictions of this
paragraph (b)(1), and comply with the
groundfish sector monitoring program
in § 648.11(l).
*
*
*
*
*
(v) Sector reporting requirements. In
addition to the other reporting/
recordkeeping requirements specified in
this part, a sector’s vessels must comply
with the reporting requirements
specified in this paragraph (b)(1)(v).
(A) VMS declarations and trip-level
catch reports. Prior to each sector trip,
a sector vessel must declare into broad
stock areas in which the vessel fishes
and submit the VTR serial number
associated with that trip pursuant to
§ 648.10(k). The sector vessel must also
submit a VMS catch report detailing
regulated species and ocean pout catch
by statistical area when fishing in
multiple broad stock areas on the same
trip, pursuant to § 648.10(k).
(B) Weekly catch report. Each sector
must submit weekly reports to NMFS
stating the remaining balance of ACE
allocated to each sector based upon
regulated species and ocean pout
landings and discards of vessels
participating in that sector and any
compliance/enforcement concerns.
These reports must include at least the
following information, as instructed by
the Regional Administrator: Week
ending date; species, stock area, gear,
number of trips, reported landings
(landed pounds and live pounds),
discards (live pounds), total catch (live
pounds), status of the sector’s ACE
(pounds remaining and percent
remaining), and whether this is a new

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or updated record of sector catch for
each regulated species stock allocated to
that particular sector; sector
enforcement issues; and a list of vessels
landing for that reporting week. These
weekly catch reports must be submitted
no later than 0700 hr on the second
Monday after the reporting week, as
defined in this part. The frequency of
these reports must be increased to more
than a weekly submission when the
balance of remaining ACE is low, as
specified in the sector operations plan
and approved by NMFS. If requested,
sectors must provide detailed trip-bytrip catch data to NMFS for the
purposes of auditing sector catch
monitoring data based upon guidance
provided by the Regional Administrator.
(C) Year-end report. An approved
sector must submit an annual year-end
report to NMFS and the Council, no
later than 60 days after the end of the
fishing year, that summarizes the fishing
activities of participating permits/
vessels, which must include at least the
following information: Catch, including
landings and discards, of all species by
sector vessels; the permit number of
each sector vessel that fished for
regulated species or ocean pout; the
number of vessels that fished for nonregulated species or ocean pout; the
method used to estimate discards by
sector vessels; the landing port used by
sector vessels; enforcement actions; and
other relevant information required to
evaluate the biological, economic, and
social impacts of sectors and their
fishing operations consistent with
confidentiality requirements of
applicable law.
(D) Streamlining sector reporting
requirements. The reporting/
recordkeeping requirements specified in
§ 648.11(l) and this paragraph (b)(1)(v)
may be revised by the Regional
Administrator in a manner consistent
with the Administrative Procedure Act.
(vi) Interaction with other fisheries—
(A) Use of DAS. A sector vessel must
comply with all measures specified for
another fishery pursuant to this part,
including any requirement to use a NE
multispecies DAS. If the regulations in
this part for another fishery require the
use of a NE multispecies DAS, the DAS
allocation and accrual provisions
specified in § 648.82(d) and (e),
respectively, apply to each trip by a
sector vessel, as applicable. For
example, if a sector vessel is also issued
a limited access monkfish Category C
permit and is required to use a NE
multispecies DAS concurrent with a
monkfish DAS under this part, any NE
multispecies DAS used by the sector
vessel accrues, as specified in
§ 648.82(e)(1)(ii) based upon the vessel’s

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NE multispecies DAS allocation
calculated pursuant to
§ 648.82(d)(1)(iv)(B).
(B) Availability of ACE.
Notwithstanding the requirements in
paragraph (b)(1)(vi)(A) of this section, if
a sector has not been allocated or does
not acquire sufficient ACE available to
cover the catch of a particular stock of
regulated species while participating in
another fishery in which such catch
would apply to the ACE allocated to a
sector, vessels participating in that
sector cannot participate in those other
fisheries unless NMFS has approved a
sector operations plan that ensures that
regulated species or ocean pout will not
be caught while participating in these
other fisheries.
(vii) ACE transfers. All or a portion of
a sector’s ACE for any NE multispecies
stock may be transferred to another
sector at any time during the fishing
year and up to 2 weeks into the
following fishing year (i.e., through May
14), unless otherwise instructed by
NMFS, to cover any overages during the
previous fishing year. A sector is not
required to transfer ACE to another
sector. An ACE transfer only becomes
effective upon approval by NMFS, as
specified in paragraph (b)(1)(vii)(B) of
this section.
(A) Application to transfer ACE. ACE
may be transferred from one sector to
another through written request to the
Regional Administrator. This request
must include the name of the sectors
involved, the amount of each ACE to be
transferred, the fishing year in which
the ACE transfer applies, and the
amount of compensation received for
any ACE transferred, as instructed by
the Regional Administrator.
(B) Approval of an ACE transfer
request. NMFS shall approve/
disapprove a request to transfer ACE
based upon compliance by each sector
and its participating vessels with the
reporting requirements specified in this
part. The Regional Administrator shall
inform both sectors in writing whether
the ACE transfer request has been
approved within 2 weeks of the receipt
of the ACE transfer request.
(C) Duration of transfer.
Notwithstanding ACE carried over into
the next fishing year pursuant to
paragraph (b)(1)(i)(C) of this section,
ACE transferred pursuant to this
paragraph (b)(1)(vii) is only valid for the
fishing year in which the transfer is
approved, with the exception of ACE
transfer requests that are submitted up
to 2 weeks into the subsequent fishing
year to address any potential ACE
overages from the previous fishing year,
as provided in paragraph (b)(1)(iii) of

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this section, unless otherwise instructed
by NMFS.
(viii) Trip limits. With the exception
of stocks listed in § 648.86(1) and the
Atlantic halibut trip limit at § 648.86(c),
a sector vessel is not limited in the
amount of allocated NE multispecies
stocks that can be harvested on a
particular fishing trip, unless otherwise
specified in the operations plan.
(2) Operations plan and sector
contract. To be approved to operate,
each sector must submit an operations
plan and preliminary sector contract to
the Regional Administrator no later than
September 1 prior to the fishing year in
which the sector intends to begin
operations, unless otherwise instructed
by NMFS. A final roster, sector contract,
and list of Federal and state permits
held by participating vessels for each
sector must be submitted by December
1 prior to the fishing year in which the
sector intends to begin operations,
unless otherwise instructed by NMFS.
The operations plan may cover a 1- or
2-year period, provided the analysis
required in paragraph (b)(3) of this
section is sufficient to assess the
impacts of sector operations during the
2-year period and that sector
membership, or any other parameter
that may affect sector operations during
the second year of the approved
operations plan, does not differ to the
point where the impacts analyzed by the
supporting National Environmental
Policy Act (NEPA) document are
compromised. Each vessel and vessel
operator and/or vessel owner
participating in a sector must agree to
and comply with all applicable
requirements and conditions of the
operations plan specified in this
paragraph (b)(2) and the letter of
authorization issued pursuant to
paragraph (c)(2) of this section. It shall
be unlawful to violate any such
conditions and requirements unless
such conditions or restrictions are
identified in an approved operations
plan as administrative only. If a
proposed sector does not comply with
the requirements of this paragraph
(b)(2), NMFS may decline to propose for
approval such sector operations plans,
even if the Council has approved such
sector. At least the following elements
must be contained in either the final
operations plan or sector contract
submitted to NMFS:
(i) A list of all parties, vessels, and
vessel owners who will participate in
the sector;
(ii) A list of all Federal and state
permits held by persons participating in
the sector, including an indication for
each permit whether it is enrolled and
will actively fish in a sector, or will be

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subject to the provisions of the common
pool;
(iii) A contract signed by all sector
participants indicating their agreement
to abide by the operations plan;
(iv) The name of a designated
representative or agent of the sector for
service of process;
(v) If applicable, a plan for
consolidation or redistribution of ACE
detailing the quantity and duration of
such consolidation or redistribution
within the sector;
(vi) A list of the specific management
rules the sector participants will agree
to abide by in order to avoid exceeding
the allocated ACE for each stock,
including a plan of operations or
cessation of operations once the ACEs of
one or more stocks are harvested and
detailed plans for enforcement of the
sector rules;
(vii) A plan that defines the
procedures by which members of the
sector that do not abide by the rules of
the sector will be disciplined or
removed from the sector, and a
procedure for notifying NMFS of such
expulsions from the sector;
(viii) If applicable, a plan of how the
ACE allocated to the sector is assigned
to each vessel;
(ix) If the operations plan is
inconsistent with, or outside the scope
of the NEPA analysis associated with
the sector proposal/framework
adjustment as specified in paragraph
(a)(1) of this section, a supplemental
NEPA analysis may be required with the
operations plan;
(x) Detailed information about overage
penalties or other actions that will be
taken if a sector exceeds its ACE for any
stock;
(xi) Detailed plans for the monitoring
and reporting of landings and discards
by sector participants, including, but
not limited to, detailed information
describing the sector’s at-sea/electronic
monitoring program for monitoring
utilization of ACE allocated to that
sector; identification of the independent
third-party service providers employed
by the sector to provide at-sea/electronic
monitoring services; the mechanism and
timing of any hail reports; a list of
specific ports where participating
vessels will land fish, with specific
exemptions noted for safety, weather,
etc., allowed, provided the sector
provides reasonable notification to
NMFS concerning a deviation from the
listed ports; and any other information
about such a program required by
NMFS;
(xii) ACE thresholds that may trigger
revisions to sector operations to ensure
allocated ACE is not exceeded, and
details regarding the sector’s plans for

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75889

notifying NMFS once the specified ACE
threshold has been reached;
(xiii) Identification of any potential
redirection of effort into other fisheries
expected as a result of sector operations,
and, if necessary, proposed limitations
to eliminate any adverse effects
expected from such redirection of effort;
(xiv) If applicable, description of how
regulated species and ocean pout will be
avoided while participating in other
fisheries that have a bycatch of
regulated species or ocean pout if the
sector does not have sufficient ACE for
stocks of regulated species or ocean
pout caught as bycatch in those
fisheries, as specified in paragraph
(b)(1)(vi)(B) of this section; and
(xv) A list of existing regulations in
this part that the sector is requesting
exemption from during the following
fishing year pursuant to paragraph (c)(2)
of this section.
(3) NEPA analysis. In addition to the
documents required by paragraphs (a)(1)
and (b)(2) of this section, before NMFS
can approve a sector to operate during
a particular fishing year, each sector
must develop and submit to NMFS, in
conjunction with the yearly operations
plan and sector contract, an appropriate
NEPA analysis assessing the impacts of
forming the sector and operating under
the measures described in the sector
operations plan.
*
*
*
*
*
■ 13. Effective January 9, 2023, amend
§ 648.90 by revising paragraphs
(a)(2)(iii) and (iv) and (a)(4)(i)(B) to read
as follows:
§ 648.90 NE multispecies assessment,
framework procedures and specifications,
and flexible area action system.

*

*
*
*
*
(a) * * *
(2) * * *
(iii) In addition, the PDT may develop
ranges of options for any of the
management measures in the FMP and
the following conditions that may be
adjusted through a framework
adjustment to achieve FMP goals and
objectives including, but not limited to:
(A) Revisions to DAS measures,
including DAS allocations (such as the
distribution of DAS among the four
categories of DAS), future uses for
Category C DAS, and DAS baselines,
adjustments for steaming time, etc.;
(B) Accumulation limits due to a
permit buyout or buyback;
(C) Modifications to capacity
measures, such as changes to the DAS
transfer or DAS leasing measures;
(D) Calculation of area-specific ACLs
(including sub-ACLs for specific stocks
and areas (e.g., Gulf of Maine cod)), area
management boundaries, and adoption

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of area-specific management measures
including the delineation of inshore/
offshore fishing practices, gear
restrictions, declaration time periods;
(E) Sector allocation requirements and
specifications, including the
establishment of a new sector, the
disapproval of an existing sector, the
allowable percent of ACL available to a
sector through a sector allocation, an
optional sub-ACL specific to Handgear
A permitted vessels, management
uncertainty buffers, and the calculation
of PSCs;
(F) Sector administration provisions,
including at-sea, electronic, dockside,
and other monitoring tools, coverage
requirements and processes, monitoring
program review, or other measures;
sector reporting requirements; vesselspecific coverage levels;
(G) State-operated permit bank
administrative provisions;
(H) Measures to implement the U.S./
Canada Resource Sharing
Understanding, including any specified
TACs (hard or target);
(I) Changes to administrative
measures;
(J) Additional uses for Regular B DAS;
(K) Reporting requirements;
(L) Declaration requirements
pertaining to when and what time
period a vessel must declare into or out
of a fishery management area;
(M) The GOM Inshore Conservation
and Management Stewardship Plan;
(N) Adjustments to the Handgear A or
B permits;
(O) Gear requirements to improve
selectivity, reduce bycatch, and/or
reduce impacts of the fishery on EFH;
(P) Special Access Program (SAP)
modifications;
(Q) Revisions to the ABC control rule
and status determination criteria,
including, but not limited to, changes in
the target fishing mortality rates,
minimum biomass thresholds,
numerical estimates of parameter
values, and the use of a proxy for
biomass may be made either through a
biennial adjustment or framework
adjustment;
(R) Changes to the SBRM, including
the CV-based performance standard, the

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means by which discard data are
collected/obtained, fishery stratification,
the process for prioritizing observer seaday allocations, reports, and/or
industry-funded observers or observer
set aside programs; and
(S) Any other measures currently
included in the FMP.
(iv) Based on the review of the most
current scientific information available
for the rebuilding plans for GOM cod
and American plaice, the PDT shall
determine whether the following
conditions are met for either stock: The
total catch limit has not been exceeded
during the rebuilding program; new
scientific information indicates that the
stock is below its rebuilding trajectory
(i.e., rebuilding has not progressed as
expected); and Frebuild becomes less than
75% FMSY. If all three of these criteria
are met, the PDT, and/or SSC, shall
undertake a rebuilding plan review to
provide new catch advice that includes
the following, in priority order: Review
of the biomass reference points and
calculation of Frebuild ACLs based on the
review of the biomass reference points
and the existing rebuilding plan.
*
*
*
*
*
(4) * * *
(i) * * *
(B) ACL recommendations. The PDT
shall develop ACL recommendations
based upon ABCs recommended by the
SSC and the pertinent recommendations
of the Transboundary Management
Guidance Committee (TMGC). The ACL
recommendations of the PDT shall be
specified based upon total catch for
each stock (including both landings and
discards), if that information is
available. The PDT shall describe the
steps involved with the calculation of
the recommended ACLs and
uncertainties and risks considered when
developing these recommendations,
including whether different levels of
uncertainties were used for different
sub-components of the fishery and
whether ACLs have been exceeded in
recent years. Based upon the ABC
recommendations of the SSC and the
ACL recommendations of the PDT, the
Council shall adopt ACLs that are equal

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to or lower than the ABC recommended
by the SSC to account for management
uncertainty in the fishery. In years that
the coverage target for the groundfish
sector monitoring program specified in
§ 648.11(l) is set at 100 percent, the
management uncertainty buffer defaults
to zero for the sector sub-ACL for the
allocated regulated species stocks
specified at § 648.87(b)(1)(i)(A), unless
through an action the New England
Fishery Management Council specifies a
different management uncertainty buffer
for a sector sub-ACL to prevent catches
from exceeding an ACL when the
coverage target is 100 percent. The need
for a management uncertainty buffer for
the sector sub-ACL will continue to be
evaluated as part of each specification
action. The PDT will consider whether
the 100-percent monitoring coverage
target supports a zero percent buffer, or
any other factor has a significant
potential to result in catches that could
exceed ACLs and will recommend an
appropriate management uncertainty
buffer if necessary.
*
*
*
*
*
14. Effective January 9, 2023, amend
§ 648.202 by revising paragraph (b)(1) to
read as follows:

■

§ 648.202

Season and area restrictions.

*

*
*
*
*
(b) * * *
(1) No vessel issued an Atlantic
herring permit and fishing with
midwater trawl gear, may fish for,
possess or land fish in or from the
Closed Areas, including Cashes Ledge
Closure Area, Western GOM Closure
Area, Closed Area I North (February 1–
April 15), and Closed Area II, as defined
in § 648.81(a)(3), (4), and (5) and (c)(3)
and (4), respectively, unless it has
declared first its intent to fish in the
Closed Areas as required by
§ 648.11(m)(1), and is carrying onboard
an observer.
*
*
*
*
*
[FR Doc. 2022–26350 Filed 12–8–22; 8:45 am]
BILLING CODE 3510–22–P

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