Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Industry-Funded Monitoring, 55665-55687 [2018-24087]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 216 (Wednesday, November 7, 2018)]
[Proposed Rules]
[Pages 55665-55687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24087]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 170831847-8853-01]
RIN 0648-BG91


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Industry-
Funded Monitoring

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

ACTION: Proposed rule, request for comments.

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SUMMARY: This action proposes regulations to implement the New England 
Fishery Management Council's Industry-Funded Monitoring Omnibus 
Amendment. The New England Council is considering ways to increase 
monitoring in certain fisheries to assess the amount and type of catch 
and reduce uncertainty around catch estimates. This amendment would 
implement a process to standardize future industry-funded monitoring 
programs in New England Council fishery management plans and industry-
funded monitoring in the Atlantic herring fishery. This action would 
ensure consistency in industry-funded monitoring programs across 
fisheries and increase monitoring in the Atlantic herring fishery.

DATES: Public comments must be received by December 24, 2018.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2018-0109, 
by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0109;
    2. Click the ``Comment Now!'' icon and complete the required 
fields; and
    3. Enter or attach your comments.
     Mail: Submit written comments to Michael Pentony, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on

[[Page 55666]]

the Proposed Rule for the Industry-Funded Monitoring Amendment.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by us. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Copies of the Industry-Funded Monitoring Omnibus Amendment, 
including the Environmental Assessment, the Regulatory Impact Review, 
and the Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared 
in support of this action are available from Thomas A. Nies, Executive 
Director, New England Fishery Management Council, 50 Water Street, Mill 
2, Newburyport, MA 01950. The supporting documents are also accessible 
via the internet at: https://www.nefmc.org.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the Greater Atlantic Regional 
Fisheries Office and by email to [email protected] or fax to 
(202) 395-5806.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, phone: (978) 282-9272 or email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    In 2013, the Mid-Atlantic and New England Fishery Management 
Councils initiated a joint omnibus amendment to allow industry-funded 
monitoring in all of the fishery management plans (FMP) that the 
Councils manage. The joint amendment would provide a mechanism to 
support industry-funded monitoring and remedy issues that prevented 
NMFS from approving some of the Councils' previous industry-funded 
monitoring proposals. The industry-funded monitoring would be in 
addition to monitoring requirements associated with the Standardized 
Bycatch Reporting Methodology (SBRM), the Endangered Species Act (ESA), 
and the Marine Mammal Protection Act (MMPA). The Councils were 
interested in increasing monitoring in certain FMPs to assess the 
amount and type of catch and to reduce uncertainty around catch 
estimates. Previous Council proposals for industry-funded monitoring 
either required NMFS to spend money that was not yet appropriated or 
split monitoring costs between the fishing industry and NMFS in ways 
that were inconsistent with Federal law.
    In their development of the joint amendment, the Councils needed to 
remedy disapproved monitoring measures in Amendment 5 to the Atlantic 
Herring FMP (Amendment 5) (79 FR 8786, February 13, 2014) and Amendment 
14 to the Atlantic Mackerel, Squid, and Butterfish FMP (Amendment 14) 
(79 FR 10029, February 24, 2014). Those measures recommended 100-
percent observer coverage for the herring and mackerel fisheries and 
that NMFS would fund the increased monitoring along with a contribution 
by the fishing industry. Because NMFS's spending is limited by its 
Congressional appropriations, NMFS could not approve the Councils' 
recommendation because it could not guarantee that it would have 
sufficient funds to pay for the required increase in monitoring. 
Amendments 5 and 14 also recommended that the fishing industry 
contribution for industry-funded monitoring would be no more than $325 
per day. Similarly, Framework 48 to the Northeast Multispecies FMP (78 
FR 53363, August 29, 2013) recommended limiting the types of costs that 
industry would be responsible for paying in an industry-funded program, 
such that the industry would only have to pay for observer salaries. 
NMFS disapproved these proposals because they proposed the industry 
share monitoring costs with the government in ways that were 
inconsistent with Federal law.
    To remedy the disapproved measures, the joint amendment would use a 
monitoring coverage target, as opposed to a mandatory coverage level, 
to allow NMFS to approve new monitoring programs without committing to 
support coverage levels above appropriated funding or before funding is 
determined to be available. Using a coverage target instead of 
mandatory coverage level means the realized coverage in a given year 
would be determined by the amount of Federal funding available to cover 
NMFS cost responsibilities in a given year. Industry-funded monitoring 
coverage targets would be specified in individual FMPs and realized 
coverage for a fishery in a given year would be anywhere from no 
additional coverage above SBRM up to the specified coverage target. 
Additionally, the joint amendment would define cost responsibilities 
for industry-funded monitoring programs between the fishing industry 
and NMFS in a manner that is consistent with legal requirements. 
Monitoring cost responsibilities may be divided between the industry 
and the government, provided government cost responsibilities are paid 
by the government and the government's costs are differentiated from 
the industry's cost responsibilities. Currently, that cost delineation 
is between administrative and sampling costs. The joint omnibus 
amendment would use that delineation to define cost responsibilities 
for future industry-funded monitoring programs.
    The omnibus alternatives in the joint amendment, meaning those 
alternatives that would apply to all Council FMPs, considered measures 
to standardize the development and administration of future industry-
funded monitoring programs. The joint amendment also included industry-
funded monitoring coverage targets for the herring and mackerel 
fisheries. Information from industry-funded monitoring would primarily 
be used to help track catch (retained and discarded) against catch 
limits. The industry-funded monitoring types considered in the joint 
amendment for the herring and mackerel fisheries included observers, 
at-sea monitors, electronic monitoring, and portside sampling. To help 
the Councils evaluate the utility of electronic monitoring to verify 
catch retention and track discarded catch, NMFS conducted a voluntary 
electronic monitoring study in 2016 and 2017 with midwater trawl 
vessels that participate in the herring and mackerel fisheries.
    At its April 2017 meeting, the Mid-Atlantic Council decided to 
postpone action on the joint amendment until the midwater trawl 
electronic monitoring study was completed. The Mid-Atlantic Council's 
decision was based, in part, on its desire to have more information on 
the use of electronic monitoring to track catch against catch limits 
and the monitoring costs associated with electronic monitoring that 
would be borne by the mackerel industry. The Mid-Atlantic Council is 
expected to re-consider whether it wants to continue developing 
industry-funded monitoring measures for its FMPs at its October 2018 
meeting. The New England Council selected preferred omnibus and herring 
coverage target alternatives at its April 2017 meeting, and recommended 
NMFS consider the amendment for approval and implementation. Therefore, 
the joint amendment initiated by both Councils to allow for industry-
funded monitoring has become the New England Industry-Funded

[[Page 55667]]

Monitoring Omnibus Amendment and the proposed measures would only apply 
to FMPs that the New England Council manages.
    The midwater electronic monitoring study concluded in January 2018. 
NMFS, New England Council, and Mid-Atlantic Council staff reviewed the 
study's final report in March 2018 and concluded that electronic 
monitoring was suitable for detecting discarding events aboard midwater 
trawl vessels. The study also evaluated costs associated with using EM 
in the herring fishery, especially the sampling costs that would be 
paid by the fishing industry. Based on the study, NMFS estimated the 
industry's costs for EM at approximately $296 per coverage day, not 
including the initial costs of purchasing and installing equipment. The 
EA for the amendment estimated the industry's annual costs for portside 
sampling at $96,000 for the midwater trawl fleet and $8,700 per vessel. 
Therefore, NMFS estimated the industry's costs for using electronic 
monitoring and portside sampling would be approximately $515 per 
coverage day.
    A Notice of Availability (NOA) for the New England Industry-Funded 
Omnibus Amendment was published in the Federal Register on September 
19, 2018 (83 FR47326). The comment period for the NOA ends on November 
19, 2018. Comments submitted on the NOA and/or this proposed rule prior 
to November 19, 2018, will be considered in our decision to approve, 
partially approve, or disapprove the Industry-Funded Monitoring Omnibus 
Amendment. We will consider comments received by the end of the comment 
period for this proposed rule December 24, 2018 in our decision to 
implement measures proposed by the Council.

Proposed Omnibus Measures

    This amendment would standardize the development and administration 
of future industry-funded monitoring programs for New England Council 
FMPs only. However, only the Atlantic Herring FMP would be subject to 
an industry-funded monitoring program resulting from this amendment. In 
the future, if the New England Council develops an industry-funded 
monitoring program, the New England Council would develop those 
programs consistent with the specifications and requirements for 
industry-funded programs established in this amendment. The existing 
industry-funded monitoring programs in the Northeast Multispecies and 
Atlantic Sea Scallop FMPs would not be affected by this amendment. 
While proposed cost responsibilities and monitoring service provider 
requirements are consistent with the existing programs, the industry-
funded monitoring programs in the Multispecies and Scallop FMPS would 
not be included in the proposed process to prioritize industry-funded 
monitoring programs for available Federal funding. The New England 
Council may incorporate these existing industry-funded monitoring 
programs into the prioritization process in a future action. 
Additionally, future industry-funded monitoring programs in the 
Multispecies and Scallop FMPs would either expand the existing programs 
or develop new programs consistent with the proposed omnibus measures.
    As described previously, NMFS cannot approve and implement 
monitoring requirements for which it does not have available Federal 
funding to cover NMFS cost responsibilities. For that reason, this 
amendment proposes establishing industry-funded monitoring coverage 
targets in New England FMP with the understanding that annual funding 
available to cover NMFS cost responsibilities would likely vary and 
dictate realized coverage levels. The realized coverage in a given year 
would be determined by the amount of Federal funding available to cover 
NMFS cost responsibilities in a given year.
    The standardized structure for future industry-funded monitoring 
programs in New England fisheries would apply to several types of 
monitoring, including observing, at-sea monitoring, electronic 
monitoring, portside sampling, and dockside monitoring. This rule 
proposes the following principles to guide the selection and 
implementation of future industry-funded monitoring programs. The 
Council's development of an industry-funded monitoring program must 
consider or include the following:
     A clear need or reason for the data collection;
     Objective design criteria;
     Cost of data collection should not diminish net benefits 
to the nation nor threaten continued existence of the fishery;
     Seek less data intensive methods to collect data necessary 
to assure conservation and sustainability when assessing and managing 
fisheries with minimal profit margins;
     Prioritize the use of modern technology to the extent 
practicable; and
     Incentives for reliable self-reporting.
    All proposed omnibus measures are administrative, specifying a 
process to develop and administer future industry-funded monitoring and 
monitoring set-aside programs, and do not directly affect fishing 
effort or amounts of fish harvested. However, the proposed omnibus 
measures may have indirect effects on New England FMPs. Standardizing 
the process for developing and administering future industry-funded 
monitoring programs may help reduce the administrative burden 
associated with implementing new programs and may lead to greater 
consistency in the information collected through industry-funded 
monitoring programs. Improved catch information resulting from greater 
consistency in how information is collected may lead to better 
management of biological resources. The prioritization process may help 
ensure that available Federal funding is used to support industry-
funded monitoring programs consistent with Council monitoring 
priorities. While industry-funded monitoring programs are expected to 
have an economic impact on the fishing industry, standard cost 
responsibilities may help the industry better understand and plan for 
their industry-funded monitoring cost responsibilities. Standard cost 
responsibilities may also aid the industry in negotiating coverage 
costs with service providers, which may ultimately reduce the dollar 
amount associated with industry cost responsibilities. Lastly, 
monitoring set-aside programs may help minimize the economic burden on 
the fishing industry associated with paying for monitoring coverage.

1. Standard Process To Implement and Revise Industry-Funded Monitoring 
Programs

    This amendment would specify that future industry-funded monitoring 
programs would be implemented through an amendment to the relevant FMP. 
Because industry-funded monitoring programs have the potential to 
economically impact the fishing industry, the Council determined that 
implementing new industry-funded monitoring programs through an 
amendment would help ensure additional public notice and comment during 
the development of new programs. The details of any new industry-funded 
monitoring program implemented via amendment may include, but are not 
limited to:
     Level and type of coverage target;
     Rationale for level and type of coverage;
     Minimum level of coverage necessary to meet coverage 
goals;
     Consideration of waivers if coverage targets cannot be 
met;
     Process for vessel notification and selection;

[[Page 55668]]

     Cost collection and administration;
     Standards for monitoring service providers; and
     Any other measures necessary to implement the industry-
funded monitoring program.
    This amendment would also specify that future industry-funded 
monitoring programs, implemented through an amendment, may be revised 
through framework adjustments to the relevant FMP. Additional National 
Environmental Policy Act (NEPA) analysis would be required for any 
action implementing and/or modifying industry-funded monitoring 
programs, regardless if the vehicle is an amendment or framework 
adjustment.

2. Standard Cost Responsibilities

    Cost responsibilities for industry-funded monitoring must be 
divided by cost category, rather than a dollar amount or percentage of 
total cost, between the fishing industry and NMFS. NMFS is obligated to 
pay any cost for which the benefit of the expenditure accrues to the 
government. This means that NMFS would be responsible for 
administrative costs to support industry-funded programs, but not the 
costs associated with sampling activities. Costs associated with 
sampling activities would be paid by the fishing industry. NMFS may 
help offset industry cost responsibilities through reimbursement if 
Federal funding is available, but NMFS cannot be obligated to pay 
sampling costs in industry-funded sampling programs. Cost 
responsibilities dictated by legal requirements cannot be modified 
through this amendment. Instead, this amendment would codify NMFS cost 
responsibilities for industry-funded monitoring in New England FMPs to 
ensure consistency and compliance with legal requirements.
    NMFS would be responsible for paying costs associated with setting 
standards for, monitoring the performance of, and administering, 
industry-funded monitoring programs. These program elements would 
include:
     The labor and facilities costs associated with training 
and debriefing of monitors;
     NMFS-issued gear (e.g., electronic reporting aids used by 
human monitors to record trip information);
     Certification of monitoring providers and individual 
observers or monitors;
     Performance monitoring to maintain certificates;
     Developing and executing vessel selection;
     Data processing (including electronic monitoring video 
audit, but excluding service provider electronic video review); and
     Costs associated with liaison activities between service 
providers, NMFS, Coast Guard, Council, sector managers, and other 
partners.
    NMFS's costs to administer industry-funded monitoring for all 
monitoring types would be paid with Federal funds. The industry would 
be responsible for funding all other costs of the monitoring program, 
those costs would include, but are not limited to:
     Costs to the service provider for deployments and sampling 
(e.g., travel and salary for observer deployments and debriefing);
     Equipment, as specified by NMFS, to the extent not 
provided by NMFS (e.g., electronic monitoring system);
     Costs to the service provider for observer or monitor time 
and travel to a scheduled deployment that doesn't sail and was not 
canceled by the vessel prior to the sail time;
     Costs to the service provider for installation and 
maintenance of electronic monitoring systems;
     Provider overhead and project management costs (e.g., 
provider office space, administrative and management staff, recruitment 
costs, salary and per diem for trainees); and
     Other costs of the service provider to meet performance 
standards laid out by a FMP.
    The cost responsibilities described above are consistent with the 
existing scallop and multispecies industry-funded monitoring programs, 
although cost responsibilities are not explicitly defined in those 
FMPs. This amendment would codify NMFS cost responsibilities for 
industry-funded monitoring for all New England FMPs, but it would not 
alter current requirements for existing industry-funded monitoring 
programs.

3. Standard Requirements for Monitoring Service Providers and 
Observers/Monitors

    The SBRM Omnibus Amendment adopted general industry-funded observer 
service provider and observer requirements (at 50 CFR 648.11(h) and 
(i), respectively) should a Council develop and implement a requirement 
or option for an industry-funded observer program to support SBRM in 
any New England or Mid-Atlantic Council FMP. However, the SBRM 
Amendment did not address requirements for other types of industry-
funded monitoring programs or coverage in addition to SBRM.
    This action would modify existing observer and service provider 
requirements to apply more broadly to monitoring by observers, at-sea 
monitors, portside samplers, and dockside monitors. Additionally, this 
amendment would apply those requirements to supplementing coverage 
required by SBRM, ESA, and MMPA. This rule proposes to expand and 
modify existing observer service provider requirements at Sec.  
648.11(h) to apply to service providers for observers, at-sea monitors, 
portside samplers, and dockside monitors. Similarly, this rule proposes 
to expand and modify existing observer requirements at Sec.  648.11(i) 
to apply to observers, at-sea monitors, portside samplers, and dockside 
monitors, described collectively as observers/monitors. These observer/
monitor requirements would serve as the default requirements for any 
future industry-funded monitoring programs in New England Council FMPs. 
The Council may specify new requirements or revise existing 
requirements for FMP-specific industry-funded monitoring programs, as 
part of the amendment developing those programs or the framework 
adjustment revising those programs.

4. Prioritization Process

    This amendment would establish a Council-led process to prioritize 
industry-funded monitoring programs for available Federal funding 
across New England Council FMPs. This prioritization process would 
allow the Council discretion to align Council monitoring priorities 
with available funding to pay NMFS cost responsibilities associated 
with industry-funded monitoring. Revising the prioritization process 
would be done in a framework adjustment. The existing scallop and 
multispecies industry-funded monitoring programs would not be included 
in the proposed prioritization process, unless the New England Council 
takes action in the future to include those programs in the 
prioritization process or develops new industry-funded monitoring 
programs within those FMPs consistent with this amendment.
    Available Federal funding refers to any funds in excess of those 
allocated to meet SBRM or other existing monitoring requirements that 
may be used to cover the government's costs associated with supporting 
industry-funded monitoring programs. Funding for SBRM, ESA, and MMPA 
observer coverage would not be affected by this prioritization process. 
Any industry-funded monitoring programs would be prioritized separately 
from and in addition to any SBRM coverage or other statutory coverage 
requirements. The realized industry-funded monitoring coverage in

[[Page 55669]]

a given year would be determined by the amount of Federal funding 
available to cover NMFS cost responsibilities in a given year.
    When there is no Federal funding available to cover NMFS cost 
responsibilities above SBRM coverage in a given year, then no industry-
funded monitoring programs would operate that year. If available 
funding in a given year is sufficient to support all industry-funded 
monitoring programs, the prioritization process would fully 
operationalize the industry-funded monitoring coverage targets 
specified in each FMP. If there is some available funding, but not 
enough to support all industry-funded monitoring programs, the Council 
would determine how to prioritize industry-funded monitoring coverage 
targets for available funding across FMPs.
    As part of the Council-led prioritization process, this amendment 
would establish an equal weighting approach to prioritize industry-
funded monitoring programs for available funding. An example of an 
equal weighting approach would be funding all industry-funded 
monitoring programs at 70 percent, if only 70 percent of the Federal 
funding needed to administer all the programs was available. 
Additionally, this rule proposes that the Council would adjust the 
equal weighting approach on an as-needed basis. This means that the 
equal weighting approach would be adjusted whenever a new industry-
funded monitoring program is approved or whenever an existing industry-
funded monitoring program is adjusted or terminated. The Council would 
revise the weighting approach for the Council-led prioritization 
process in a framework adjustment or by considering a new weighting 
approach at a public meeting, where public comment is accepted, and 
asking NMFS to publish a notice or rulemaking modifying the weighting 
approach, consistent with the Administrative Procedure Act (APA).
    The SBRM coverage year begins in April and extends through March. 
SBRM coverage levels in a given year are determined by the variability 
of discard rates from the previous year and the availability of SBRM 
funding. During the spring, NMFS determines SBRM coverage for the 
upcoming year. Once NMFS finalizes SBRM coverage levels for the 
upcoming year, NMFS would then evaluate what Federal funding was 
available to cover its costs for meeting the industry-funded monitoring 
coverage targets for the next year. For example, once NMFS determines 
SBRM coverage for 2018, it would then evaluate what amount of 
government coverage costs could be covered by available Federal funding 
to meet industry-funded monitoring coverage targets for 2019. NMFS 
would provide the Council, at the earliest practicable opportunity: (1) 
The estimated industry-funded monitoring coverage levels, incorporating 
the prioritization process and weighting approach and based on 
available funding, for each FMP-specific monitoring program; and (2) 
the rationale for the industry-funded monitoring coverage levels, 
including the reason for any deviation from the Council's 
recommendations. NMFS would inform the Council of the estimated 
industry-funded coverage levels during a Council meeting. At that time, 
the Council may recommend revisions and additional considerations by 
the Regional Administrator and Science and Research Director. If NMFS 
costs associated with industry-funded coverage targets are fully funded 
in a given year, NMFS would also determine, in consultation with the 
Council, the allocation, if any, of any remaining available funding to 
offset industry costs. The earlier in the year that industry-funded 
monitoring coverage targets are set for the following year, the more 
time the affected fishing industry would have to plan for industry-
funded monitoring the following year. FMP-specific industry-funded 
monitoring programs would determine if industry-funded coverage targets 
were administered consistent with the FMP's fishing year or the SBRM 
year.

5. Monitoring Set-Aside Programs

    This amendment would standardize the process to develop future 
monitoring set-aside programs and would allow monitoring set-aside 
programs to be developed in a framework adjustment to the relevant FMP. 
A monitoring set-aside program would use a portion of the annual catch 
limit (ACL) from a fishery to help offset industry cost 
responsibilities associated with industry-funded monitoring coverage 
targets. There are many possible ways to structure a monitoring set-
aside program, and the details of each program would be developed on an 
FMP-by-FMP basis. Monitoring set-aside programs are an option to help 
ease industry cost responsibilities associated with industry-funded 
monitoring, but they likely would only help offset a portion of the 
industry's cost responsibilities.
    The details of monitoring set-aside programs may include, but are 
not limited to:
     The basis for the monitoring set-aside;
     The amount of the set-aside (e.g., percentage of ACL, 
days-at-sea (DAS));
     How the set-aside is allocated to vessels required to pay 
for monitoring (e.g., increased possession limit, differential DAS 
counting, additional trips against a percent of the ACL);
     The process for vessel notification;
     How funds are collected and administered to cover the 
industry's costs of monitoring coverage; and
     Any other measures necessary to develop and implement a 
monitoring set-aside.

Proposed Atlantic Herring Measures

    This amendment would establish an industry-funded monitoring 
program in the Atlantic herring fishery that is expected to provide 
increased accuracy in catch estimates. Increased monitoring in the 
herring fishery would address the following goals: (1) Accurate 
estimates of catch (retained and discarded); (2) accurate catch 
estimates for incidental species with catch caps (haddock and river 
herring/shad); and (3) affordable monitoring for the herring fishery.
    This amendment would establish a 50-percent industry-funded 
monitoring coverage target on vessels issued an All Areas (Category A) 
or Areas 2/3 (Category B) Limited Access Herring Permits fishing on a 
declared herring trip. The Council considered other coverage targets, 
including 100-percent, 75-percent, and 25-percent, but the 50-percent 
coverage target balanced the benefits and costs of additional 
monitoring. When tracking catch against catch caps in the herring 
fishery, analyses in the EA supporting this amendment suggest that a 
50-percent coverage target would greatly reduce the uncertainty around 
catch estimates, and likely result in a coefficient of variation less 
than 30 percent almost all of the time. Additionally, the industry's 
cost responsibilities associated with a 50-percent coverage target are 
substantially less than those associated with higher coverage targets. 
Vessels participating in the herring fishery also participate in the 
Atlantic mackerel fishery. Currently, the mackerel fishery does not 
have an industry-funded monitoring program. If the Mid-Atlantic Council 
develops industry-funded monitoring in the mackerel fishery and the 
industry-funded coverage targets do not match for the herring and 
mackerel fisheries, then the higher coverage target would apply on all 
trips declared into the fishery with the higher coverage target.
    Herring coverage targets would be calculated for the herring 
fishing year, January through December, by

[[Page 55670]]

combining SBRM and industry-funding monitoring coverage. NMFS would 
determine how to calculate the combined coverage target, in 
consultation with Council staff. For example, if there is 10-percent 
SBRM coverage in a given year, then 40-percent industry-funded 
monitoring coverage would be needed to achieve the 50-percent coverage 
target. Because the coverage target is calculated by combining SBRM and 
industry-funded monitoring coverage, a vessel would not have SBRM 
coverage and industry-funded coverage on the same trip. Any vessel 
selected for SBRM coverage on a particular trip would not have the 
option of industry-funded monitoring on that trip. Per the 
prioritization process in the proposed omnibus measures, the realized 
coverage level in a given year would be determined by the amount of 
funding available to cover NMFS cost responsibilities in a given year. 
The realized coverage for the herring fishery in a given year would 
fall somewhere between no additional coverage in addition to SBRM and 
the specified coverage target. Combined coverage targets are intended 
to help reduce the cost of industry-funded coverage, but the level of 
SBRM coverage in the herring fishery varies by gear type and has the 
potential to vary year to year. The variability of SBRM coverage has 
the potential to make it difficult for the herring industry to plan for 
industry-funded monitoring year to year.
    In addition to the proposed standard monitoring and service 
provider requirements in the proposed omnibus measures, this amendment 
would specify that requirements for industry-funded observers and at-
sea monitors in the herring fishery include a high volume fishery (HVF) 
certification. Currently, NMFS's Northeast Fisheries Observer Program 
(NEFOP) observers must possess a HVF certification in order to observe 
the herring fishery. NMFS developed the HVF certification to more 
effectively train observers in high volume catch sampling and 
documentation. NEFOP determined that data quality on herring trips was 
sub-optimal when collected by observers without specialized training, 
potentially resulting in data loss. In addition, the high variety of 
deck configurations, fish handling practices and fast-paced operations 
proved more demanding for observers. Having additional training to 
identify these practices improved decision-making while at sea, which, 
ultimately, improved data accuracy and maximized data collection.
    Additionally, this amendment would require the Council to examine 
the results of any increased coverage in the herring fishery two years 
after implementation of this amendment, and consider if adjustments to 
the coverage targets are warranted. Depending on the results and 
desired actions, subsequent action to adjust the coverage targets could 
be accomplished via a framework adjustment or an amendment to the 
Herring FMP, as appropriate. Measures implemented in this amendment 
would remain in place unless revised by the Council.

1. Industry-Funded At-Sea Monitoring Coverage on Vessels Issued 
Category A or B Herring Permits

    This rule proposes that vessels issued Category A or B herring 
permits would carry an industry-funded at-sea monitor on declared 
herring trips that are selected for coverage by NMFS, unless NMFS 
issues the vessel a waiver for coverage on that trip. Vessels would be 
selected for coverage by NMFS to meet the 50-percent coverage target. 
Prior to any trip declared into the herring fishery, representatives 
for vessels with Category A or B permits would be required to notify 
NMFS for monitoring coverage. If an SBRM observer was not selected to 
cover that trip, NMFS would notify the vessel representative whether an 
at-sea monitor must be procured through a monitoring service provider. 
Because the 50-percent coverage target is calculated by combining SBRM 
and industry-funded monitoring coverage, a vessel would not carry an 
SBRM observer on the same trip that would carry an at-sea monitor. If 
NMFS informs the vessel representative that they need at-sea monitoring 
coverage, they would then be required to obtain and pay for an at-sea 
monitor to carry on that trip. The vessel would be prohibited from 
fishing for, taking, possessing, or landing any herring without 
carrying an at-sea monitor on that trip. If NMFS informs the vessel 
representative that the vessel is not selected for at-sea monitoring 
coverage, NMFS would issue the vessel an at-sea monitoring coverage 
waiver for that trip.
    This rule proposes three reasons for issuing vessels waivers from 
industry-funded monitoring requirements on a trip-by-trip basis. First, 
if an at-sea monitor was not available to cover a specific herring trip 
(either due to logistics or a lack of available Federal funding to 
cover NMFS cost responsibilities), NMFS would issue the vessel an at-
sea monitoring coverage waiver for that trip. Second, if a vessel using 
midwater trawl gear intended to operate as a wing vessel on a trip, 
meaning that it would pair trawl with another midwater trawl vessel but 
would not pump or carry any fish onboard, then that vessel may request 
a waiver for industry-funded monitoring requirements on that trip. 
Vessels would notify NMFS in advance of the wing vessel trip, and NMFS 
would issue a waiver for industry-funded monitoring requirements on 
that trip. Wing vessels would be prohibited from carrying fish onboard 
during these trips. If a wing vessel did carry fish, the vessel would 
be out of compliance with industry-funded monitoring requirements on 
that trip. Third, if a vessel intended to land less than 50 metric tons 
(mt) of herring on a trip, then the vessel may request a waiver for 
industry-funded monitoring requirements on that trip. Vessels would 
notify NMFS in advance of the trip on which they intend to land less 
than 50 mt of herring, and NMFS would issue a waiver for industry-
funded monitoring requirements on that trip. Vessels would be 
prohibited from landing 50 mt or more of herring on these trips. If the 
vessel landed 50 mt or more of herring, the vessel would be out of 
compliance with industry-funded monitoring requirements on that trip.
    At-sea monitors would collect the following information on herring 
trips:
     Fishing gear information (i.e., size of nets, mesh sizes, 
and gear configurations);
     Tow-specific information (i.e., depth, water temperature, 
wave height, and location and time when fishing begins and ends);
     Species, weight, and disposition of all retained and 
discarded catch on observed hauls;
     Species, weight, and disposition of all retained catch on 
unobserved hauls;
     Actual catch weights whenever possible, or alternatively, 
weight estimates derived by sub-sampling;
     Length data, along with whole specimens and photos to 
verify species identification, on retained and discarded catch;
     Information on and biological samples from interactions 
with protected species, such as sea turtles, marine mammals, and sea 
birds; and
     Vessel trip costs (i.e., operational costs for trips 
including food, fuel, oil, and ice).
    The primary biological data that at-sea monitors would collect are 
length data on retained and discarded catch. However, to verify species 
identification, at-sea monitors may also collect whole specimens or 
photos. In the future, the Council may recommend that at-sea monitors 
collect additional biological information upon request. Revising what 
information an at-sea monitor collects could be done in a framework 
adjustment. Alternatively,

[[Page 55671]]

the Council may recommend that at-sea monitors collect additional 
biological information by considering the issue at a public meeting, 
where public comment is accepted, and asking NMFS to publish a notice 
or rulemaking modifying the duties for at-sea monitors, consistent with 
the APA.
    In contrast to observers, at-sea monitors would not collect whole 
specimens, photos, or biological samples (other than length data) from 
catch, unless it was for purposes of species identification, or 
sighting data on protected species. The Council recommended a limited 
data collection compared to observers to allow for possible cost 
savings for either the industry or NMFS associated with a limited data 
collection.
    Currently, vessels issued Category A or B herring permits are 
required to comply with all slippage restrictions, slippage reporting 
requirements, and slippage consequence measures when carrying an 
observer for SBRM coverage (Sec.  648.11(m)(4)). Because the purpose of 
slippage restrictions is to help ensure catch is made available for 
sampling, this rule proposes that existing slippage requirements would 
also apply when vessels are carrying an industry-funded at-sea monitor. 
Specifically, when vessels issued Category A or B herring permits are 
carrying either an SBRM observer or industry-funded at-sea monitor, 
vessels would be required to bring catch aboard the vessel and make it 
available for sampling prior to discarding. If vessels slipped catch 
for any reason, they would be required to report that slippage event on 
the daily vessel monitoring catch report and complete a slipped catch 
affidavit. If vessels slip catch due to excess catch of spiny dogfish, 
mechanical failure, or safety, then vessels would be required to move 
15 nautical miles (27.78 km) following that slippage event and remain 
15 nautical miles (27.78 km) away from that slippage event before 
making another haul and for the duration of that fishing trip. If 
vessels slip catch for any other reason, they would be required to 
terminate that fishing trip and immediately return to port.
    Industry-funded monitoring would have direct economic impacts on 
vessels issued Category A and B permits participating in the herring 
fishery. The EA estimated the industry's cost responsibility associated 
with carrying an at-sea monitor at $710 per day. The EA uses returns-
to-owner (RTO) to estimate the potential reduction in annual RTO 
associated with paying for monitoring coverage. RTO was calculated by 
subtracting annual operating costs from annual gross revenue and was 
used instead of net revenues to more accurately reflect fishing income. 
While the actual cost of industry-funded monitoring on a particular 
vessel would vary with effort level and the amount of SBRM coverage, 
analyses in the EA suggest that the cost of the proposed at-sea 
monitoring coverage may reduce the annual RTO for vessels with Category 
A or B herring permits up to approximately 20 percent. Waiving at-sea 
monitoring coverage requirements for wing vessel trips or trips that 
land less than 50 mt of herring would help reduce the cost of at-sea 
monitoring coverage on those trips, but those waivers are not an option 
for all vessels.

2. Industry-Funded Observer Coverage on Midwater Trawl Vessels Fishing 
in Groundfish Closed Areas

    Midwater trawl vessels fishing in the Groundfish Closed Areas are 
required to carry an observer by measures at Sec.  648.202(b). When 
Amendment 5 established that requirement, the Groundfish Closed Areas 
included Closed Area I, Closed Area II, Nantucket Lightship Closed 
Area, Cashes Ledge Closure Area, and the Western Gulf of Maine Closure 
Area. Currently, the only mechanism for midwater trawl vessels to carry 
an observer is if an observer is assigned through the SBRM. As 
described previously, SBRM coverage for midwater trawl vessels has 
recently been variable (approximately 4 percent to 40 percent from 2015 
through 2017). This rule would maintain the requirement to carry an 
observer for midwater trawl vessels fishing in a Groundfish Closed 
Area, but it proposes that midwater trawl vessels would be able to 
purchase observer coverage in order to access Groundfish Closed Areas.
    Prior to any trip declared into a Groundfish Closed Area, 
representatives for midwater trawl vessels would be required to provide 
notice to NMFS for monitoring coverage. If an SBRM observer was not 
selected to cover that trip, NMFS would notify the vessel 
representative that an observer may be procured through a monitoring 
service provider. The vessel would be prohibited from fishing in the 
Groundfish Closed Areas without carrying an observer. Observers would 
collect the following information on midwater trawl trips:
     Fishing gear information (i.e., size of nets, mesh sizes, 
and gear configurations);
     Tow-specific information (i.e., depth, water temperature, 
wave height, and location and time when fishing begins and ends);
     Species, weight, and disposition of all retained and 
discarded catch on observed hauls;
     Species, weight, and disposition of all retained catch on 
unobserved hauls;
     Actual catch weights whenever possible, or alternatively, 
weight estimates derived by sub-sampling;
     Whole specimens, photos, length information, and 
biological samples (i.e., scales, otoliths, and/or vertebrae);
     Information on interactions with protected species, such 
as sea turtles, marine mammals, and sea birds; and
     Vessel trip costs (i.e., operational costs for trip 
including food, fuel, oil, and ice).
    The proposed measure to allow midwater trawl vessels to purchase 
observer coverage to access Groundfish Closed Areas would also have 
economic impacts on vessels participating in the herring fishery. The 
EA estimated the industry's cost responsibility associated with 
carrying an observer at $818 per day. While the actual cost of 
industry-funded monitoring on a particular vessel would vary with 
effort level and the amount of SBRM coverage, analyses in the EA 
suggest that the cost of observer coverage may reduce the annual RTO 
for midwater trawl vessels up to 5 percent. That 5 percent reduction in 
RTO would be in additional to any reduction in RTO due to other types 
of industry-funded monitoring coverage. Coverage waivers are not an 
option to reduce the cost of observer coverage because coverage waivers 
do not apply on midwater trawl vessels fishing in the Groundfish Closed 
Areas.
    If the Groundfish Closed Areas are modified, eliminated, or added 
in the future, existing observer coverage requirements for midwater 
trawl vessels would apply to the modified areas. Anticipating changes 
to the Groundfish Closed Areas in the Omnibus Essential Fish Habitat 
Amendment 2 (Habitat Amendment), the Industry-Funded Monitoring 
Amendment Development Team/Fishery Management Action Team (PDT/FMAT) 
recommended the Council clarify its intent regarding the requirement 
that midwater trawl vessels fishing in Groundfish Closed Areas must 
carry an observer. In a March 17, 2017, memorandum, the PDT/FMAT noted 
that the Habitat Amendment proposed changes to Groundfish Closed Areas, 
such as eliminating areas, boundary changes, and seasonality. That same 
memorandum proposed the Council clarify that this amendment maintains 
the 100-percent observer coverage requirement on midwater trawl

[[Page 55672]]

vessels fishing in Groundfish Closed Areas, as modified by the Habitat 
Amendment. The Council accepted the FM PDT/FMAT's proposed 
clarification when it took final action on this amendment in April 
2017.
    In January 2018, NMFS partially approved the Habitat Amendment, 
including changes to Closed Area I, Nantucket Lightship Closed Area, 
and the Western Gulf of Maine Closure Area. Consistent with Council 
intent regarding observer coverage, the final rule for the Habitat 
Amendment (83 FR 15240, April 9, 2018) maintained the 100-percent 
observer requirement for midwater trawl vessels fishing in Closed Area 
I North (February 1-April 15), Closed Area II, Cashes Ledge Closure 
Area, and the Western Gulf of Maine Closure Area. Because the Habitat 
Amendment removed the Nantucket Lightship Closed Area from the list of 
Groundfish Closed Areas, the 100-percent observer coverage requirement 
no longer applies to midwater trawl vessels fishing in the area 
previously known as the Nantucket Lightship Closed Area.
    Recognizing that it recommended multiple industry-funded monitoring 
types, including at-sea monitoring coverage and observer coverage in 
Groundfish Closed Areas, for the herring fishery, the Council also 
recommended prioritizing coverage aboard Category A and B vessels 
because those vessels harvest the majority of the herring. Consistent 
with that recommendation, if available Federal funding is insufficient 
to cover NMFS cost responsibilities associated with administering 
multiple monitoring programs for the herring fishery, this rule 
proposes prioritizing industry-funded monitoring coverage on Category A 
and B vessels before supporting observer coverage on midwater trawl 
vessels fishing in Groundfish Closed Areas.

Atlantic Herring Exempted Fishing Permit

    On April 19, 2018, the New England Council considered whether 
electronic monitoring in conjunction with portside sampling, would be 
an adequate substitute for at-sea monitoring coverage aboard midwater 
trawl vessels. Because midwater trawl vessels discard only a small 
percentage of catch at sea, electronic monitoring and portside sampling 
have the potential to be a cost effective way to address monitoring 
goals for the herring fishery. The purpose of electronic monitoring 
would be to confirm catch retention and verify compliance with slippage 
restrictions, while the purpose of portside sampling would be to 
collect species composition data along with age and length information. 
After reviewing the midwater trawl electronic monitoring study, the 
Council approved electronic monitoring and portside sampling as a 
monitoring option for midwater trawl vessels, but did not recommend 
requiring electronic monitoring and portside sampling as part of this 
action. Instead, the Council recommended NMFS use an exempted fishing 
permit (EFP) to further evaluate how to best permanently administer an 
electronic monitoring and portside sampling program.
    The EFP would exempt midwater vessels from the proposed requirement 
for industry-funded at-sea monitoring coverage and would allow midwater 
trawl vessels to use electronic monitoring and portside sampling 
coverage to comply with the Council-recommended 50-percent industry-
funded monitoring coverage target. The recent midwater trawl electronic 
monitoring study provides a good foundation for an electronic 
monitoring program. However, using an EFP would provide NMFS with 
further information about how to most effectively and efficiently 
administer the electronic monitoring and portside sampling program, 
while allowing NMFS the flexibility to respond quickly to emerging 
issues, helping to make the monitoring program more robust. An EFP 
would also enable NMFS to evaluate other monitoring issues in the 
herring fishery that are of interest to the Council and herring 
industry. Lastly, NMFS could use an EFP to evaluate the utility of 
electronic monitoring and portside sampling when midwater trawl vessels 
switch to purse seining and/or fish in Groundfish Closed Areas.
    The EFP would be developed concurrently with rulemaking for this 
amendment. If the proposed herring measures are approved, then midwater 
trawl vessels issued EFPs would be allowed to use electronic monitoring 
and portside sampling coverage to comply with the Council-recommended 
50-percent industry-funded monitoring coverage target. The Council 
recommended reconsidering herring industry-funded monitoring 
requirements two years after implementation. The Council would consider 
establishing electronic monitoring and portside sampling program 
requirements into regulation via a framework adjustment at that time.

Proposed Corrections and Clarification

    NMFS proposes the following corrections and updates under the 
authority of section 305(d) to the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), which provides 
that the Secretary of Commerce may promulgate regulations necessary to 
carry out a FMP or the Magnuson-Stevens Act.
    First, this rule proposes correcting the typographic error in Sec.  
648.7(b)(2)(i). This correction would correct ``opn 9access'' to ``open 
access'' and is necessary to clarify the intent of the regulation.
    Second, this rule proposes updating outdated requirements for 
vessels operating under the midwater trawl and purse seine exempted 
fisheries. Regulations at Sec.  648.80(d)(5) and (e)(5) require vessels 
to notify NMFS 72 hours in advance of a fishing trip to coordinate 
observer deployment. Amendment 5 replaced the 72-hour notification 
requirement with a 48-hour notification requirement to allow herring 
vessels more flexibility in their trip planning and scheduling. The 72-
hour notification requirements for herring vessels in Sec.  648.80 were 
overlooked in Amendment 5, so this rule proposes updating the 72-hour 
notification requirements with 48-hour notification requirements for 
midwater trawl and purse seine vessels to ensure consistent 
requirements across the herring fishery. Regulations at Sec.  
648.80(d)(5) also require midwater trawl vessels to inform NMFS if the 
vessels intends to fish in Groundfish Closed Area I. This requirement 
initially facilitated placing observers on midwater vessels fishing in 
Groundfish Closed Area I, but is no longer necessary. Therefore, this 
rule proposes removing the reference to Groundfish Closed Area I from 
the notification requirements so that requirements are consistent with 
proposed notification requirements at Sec.  648.11(m)(2).
    Third, this rule proposes allowing us to use both observer and 
monitor data to track catch against the haddock catch caps. Regulations 
at Sec.  648.86(a)(3)(ii) state that the Regional Administrator shall 
use haddock catches observed by observers to estimate of total haddock 
catch in a given haddock stock area. However, the Council has spent the 
last several years considering additional monitoring types to increase 
monitoring in the herring fishery, particularly to track catch against 
haddock and river herring/shad catch caps. In a February 2016 letter, 
the Council requested that we use observer and portside sampling data 
to monitor fishery catch caps. Additionally, in this amendment, the 
Council recommended that vessels issued Category A and B herring 
permits carry at-sea monitors to meet a 50-percent industry-funded 
monitoring

[[Page 55673]]

coverage target. In Sec.  648.2, this rule proposes defining observers 
or monitors to include NMFS-certified observers, at-sea monitors, 
portside samplers, and dockside monitors. For these reasons, this rule 
also proposes updating Sec.  648.86(a)(3)(ii) to allow the Regional 
Administrator to use observer and monitor data to track catch against 
haddock catch caps.

Classification

    Pursuant to section 304(a)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has made a preliminary determination that 
this proposed rule is consistent the Magnuson-Stevens Act and other 
applicable law. In making the final determination, we will consider the 
data, views, and comments received during the public comment period.
    This proposed rule has been preliminarily determined to be not 
significant for purposes of Executive Orders (E.O.) 12866.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
this proposed rule, as required by section 603 of the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic 
impact that this proposed rule would have on small entities, including 
small businesses, and also determines ways to minimize these impacts. 
The proposed omnibus measures are administrative, specifying a process 
to develop and administer future industry-funded monitoring and 
monitoring set-aside programs, and do not directly affect fishing 
effort or amount of fish harvested. Because the proposed omnibus 
measures have no direct economic impacts, they will not be discussed in 
this section. The proposed Atlantic herring measures affect levels of 
monitoring, rather than harvest specifications, but they are expected 
to have economic impacts on fishery-related businesses and human 
communities due to the costs associated with the industry-funded 
monitoring measures for the herring fishery.
    A description of the action, why it is being considered, and the 
legal basis for this action are contained at the beginning of this 
section in the preamble and in the SUMMARY section. The IRFA includes 
this section of the preamble to this rule and analyses contained in the 
Industry-Funded Monitoring Omnibus Amendment and its accompanying EA/
RIR/IRFA. A copy of the full analysis is available from the Council 
(see ADDRESSES). A summary of the IRFA follows.

Description of the Reason Why Action by the Agency Is Being Considered 
and Statement of the Objective of, and Legal Basis for, This Proposed 
Rule

    This action proposes management measures for New England Fishery 
Management Council FMPs. A complete description of the reasons why this 
action is being considered, and the objectives of and legal basis for 
this action, are contained in the preamble to this proposed rule and 
are not repeated here.

Description and Estimate of the Number of Small Entities To Which the 
Proposed Rule Would Apply

    Effective July 1, 2016, NMFS established a small business size 
standard of $11 million in annual gross receipts for all businesses 
primarily engaged in the commercial fishing industry for RFA compliance 
purposes only (80 FR 81194, December 29, 2015). The directly regulated 
entities are businesses that own at least one limited access Atlantic 
herring vessel. As of 2016, there are 66 businesses that own at least 
one limited access herring vessel. Four businesses are large entities 
(gross receipts greater than $11 million). The remaining 62 businesses 
are small entities. Gross receipts and gross receipts from herring 
fishing for the small entities are characterized in Table 1.

   Table 1--Gross Revenues and Revenues from Herring for the directly
                        Regulated Small Entities
------------------------------------------------------------------------
                                                     Gross
                                                   receipts      Gross
                                                     from      receipts
                                                    herring      from
                                                   permitted    herring
                                                     firms      fishing
------------------------------------------------------------------------
Mean............................................  $1,847,392    $422,210
Median..........................................  $1,076,172          $0
25th Percentile.................................    $656,965          $0
75th Percentile.................................  $2,684,753     $95,218
Permitted Small Entities........................          62          62
------------------------------------------------------------------------
Source: NMFS.

    Many of the businesses that hold limited access herring permits are 
not actively fishing for herring. Of those businesses actively fishing 
for herring, there are 32 directly regulated entities with herring 
landings. Two firms are large entities (gross receipts over $11 
million). The remaining 30 businesses are small entities. Table 2 
characterizes gross receipts and gross receipts from the herring 
fishery for the active firms.

    Table 2--Gross Revenues and Revenues from Herring for the Active
                    Directly Regulated Small Entities
------------------------------------------------------------------------
                                                     Gross
                                                   receipts      Gross
                                                     from      receipts
                                                    active       from
                                                    herring     herring
                                                   permitted    fishing
                                                     firms
------------------------------------------------------------------------
Mean............................................  $2,070,541    $872,567
Median..........................................  $1,030,411     $95,558
25th Percentile.................................    $554,628      $6,570
75th Percentile.................................  $2,955,883  $1,696,758
Active Small Entities...........................          30          30
------------------------------------------------------------------------
Source: NMFS.

    For the 30 small entities, herring represents an average of 36 
percent of gross receipts. For 12 of the small entities, herring 
represents the single largest source of gross receipts. For eight of 
the small entities, longfin squid is the largest source of gross 
receipts and Atlantic sea scallops is the largest source of gross 
receipts for five of the small entities. The largest source of gross 
receipts for the remaining five small entities are mixed across 
different fisheries. Eight of the 30 small entities derived zero 
revenues from herring.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). The new requirements, 
which are described in detail in the preamble, have been submitted to 
OMB for approval as a new collection. The proposed action does not 
duplicate, overlap, or conflict with any other Federal rules.
    The Industry-Funded Monitoring Amendment would replace the current 
phone-based observer pre-trip notification system with a new web-based 
pre-trip notification system. There would be no additional reporting 
burden associated with this measure because the new notification system 
would increase convenience and will require approximately the same time 
burden (5 minutes).
    This amendment would implement a 50-percent industry-funded 
monitoring coverage target on vessels issued Category A or B herring 
permits. The herring industry would be required to pay for industry 
cost responsibilities associated with at-sea monitoring. There are an 
estimated 42 vessels with Category A or B permits in the herring 
fishery. After considering SBRM coverage, NMFS estimates that each 
vessel would incur monitoring costs for

[[Page 55674]]

an additional 19 days at sea per year, at an estimated maximum cost of 
$710 per sea day. The annual cost estimate for carrying an at-sea 
monitor for Category A and B vessels would be $566,580, with an average 
cost per vessel of $13,490.
    In addition to the 50-percent industry-funded monitoring coverage 
target, midwater trawl vessels would have the option to purchase 
observer coverage to allow them to fish in Groundfish Closed Areas. 
This option would be available to the estimated 12 vessels that fish 
with midwater trawl gear. Since this option would be available on all 
trips not otherwise selected for SBRM or industry-funded at-sea 
monitoring coverage, it is estimated that each vessel may use this 
option for up to 21 days per year, at an estimated maximum cost of $818 
per sea day. Therefore, the annual cost associated with industry-funded 
observer coverage for midwater trawl vessels fishing in Groundfish 
Closed Areas is estimated to be $206,136, with an average annual cost 
per vessel of $17,178.
    To access Groundfish Closed Areas, owners/operators of the 12 
affected midwater trawl vessels would request an observer by calling 
one of the approved monitoring service providers. The average midwater 
trawl vessel is estimated to take 7 of these trips per year, and each 
call would take an estimated 5 minutes at a rate of $0.10 per minute. 
Thus, the total annual burden estimate to the industry for calls to 
obtain industry-funded observer coverage would be 7 hours and $42 (Per 
vessel: 1 hr and $3.50). For each of the 7 estimated trips that the 
vessel calls in to request an industry-funded observer to access 
Groundfish Closed Areas, the vessel has the option to cancel that trip. 
The call to cancel the trip would take an estimated 1 minute at a rate 
of $0.10 per minute. The total annual burden estimated to the industry 
for cancelling these trips would be 1 hour and $8 (Per vessel: 1 hr and 
$1).
    NMFS expects that some monitoring service providers would apply for 
approval under the service provider requirements at Sec.  648.11(h), 
specifically that four out of six providers may apply for approval, and 
would be subject to these requirements. These providers would submit 
reports and information required of service providers as part of their 
application for approval. Service providers must comply with the 
following requirements, submitted via email, phone, web-portal, fax, or 
postal service: Submit applications for approval as a monitoring 
service provider; formally request industry-funded at-sea monitor 
training by the NEFOP; submit industry-funded at-sea monitor deployment 
and availability reports; submit biological samples, safety refusal 
reports, and other reports; give notification of industry-funded at-sea 
monitor availability within 24 hours of the vessel owner's notification 
of a prospective trip; provide vessels with notification of industry-
funded observer availability in advance of each trip; maintain an 
updated contact list of all industry-funded at-sea monitors/observers 
that includes the monitor's/observer's identification number, name, 
mailing and email address, phone numbers, homeports or fisheries/trip 
types assigned, and whether or not the monitor/observer is ``in 
service'' (i.e., available to provide coverage services). Monitoring 
service providers would have to provide raw at-sea monitoring data to 
NMFS and make at-sea monitors available to NMFS for debriefing upon 
request. The regulations would also require monitoring service 
providers to submit any outreach materials, such as informational 
pamphlets, payment notification, and descriptions of monitor duties, as 
well as all contracts between the service provider and entities 
requiring monitoring services for review to NMFS. Monitoring service 
providers also have the option to respond to application denials, and 
submit a rebuttal in response to a pending removal from the list of 
approved monitoring service providers. NMFS expects that all of these 
reporting requirements combined are expected to take 1,192 hours of 
response time per year for a total annual cost of $12,483 for all 
affected monitoring service providers ($3,121 per provider). The 
following table provides the detailed time and cost information for 
each response item.

                                 Table 3--Burden Estimate for Proposed Measures
----------------------------------------------------------------------------------------------------------------
                                                 Total     Response time  Total time   Cost per    Total annual
   Monitoring service provider     Number of   number of   per response     burden     response     public cost
          requirements             entities      items       (minutes)      (hours)       ($)           ($)
----------------------------------------------------------------------------------------------------------------
Monitor deployment report by               4         444              10          74        0.00            0.00
 email..........................
Monitor availability report by             4         216              20          72        0.00            0.00
 email..........................
Safety refusals by email........           4          40              30          20        0.00            0.00
Raw monitor data by express mail           4         444               5          37       23.75          10,545
Monitor debriefing..............           4         124             120         248       12.00           1,488
Other reports...................           4          68              30          34        0.00            0.00
Biological samples..............           4         516              60         516        0.50             258
New application to be a service            4           4             600          40        0.49               2
 provider.......................
Applicant response to denial....           1           1             600          10        0.49               1
Request to service provider to            90         360              10          60        0.00            0.00
 procure a monitor by web-portal
Notification of unavailability            90         360               5          30        0.00            0.00
 of monitors....................
Request to service provider to            21          84              10          14        1.00           84.00
 procure an observer for
 Groundfish Closed Areas by
 phone..........................
Notification of unavailability            21          84               5           7        0.50           42.00
 of observers for Groundfish
 Closed Areas...................
Request for monitor training....           4          12              30           6        1.80           21.60
Rebuttal of pending removal from           1           1             480           8        0.49               1
 list of approved service
 providers......................
Monitor contact list updates....           4          48               5           4        0.00            0.00
Monitor availability updates....           4          48               5           4        0.00            0.00
Service provider material                  4           8              30           4        2.50           20.00
 submissions....................
Service provider contracts......           4           8              30           4        2.50           20.00
                                 -------------------------------------------------------------------------------
    Total.......................  ..........  ..........  ..............       1,192  ..........          12,483
----------------------------------------------------------------------------------------------------------------


[[Page 55675]]

    Public comment is sought regarding the following: Whether this 
proposed collection of information is necessary for the proper 
performance of agency functions, including whether the information 
shall have practical utility; the accuracy of the burden estimate; ways 
to enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the 
Regional Administrator (see ADDRESSES) and email to 
[email protected] or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to 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.

Federal Rules Which May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    This action does not duplicate, overlap, or conflict with any other 
Federal rules.

Description of Significant Alternatives to the Proposed Action Which 
Accomplish the Stated Objectives of Applicable Statues and Which 
Minimize Any Significant Economic Impact on Small Entities

    None of the non-preferred herring alternatives would be expected to 
accomplish the stated objectives for monitoring in the herring fishery 
as well as the proposed action. The following are objectives for 
increased monitoring in the herring fishery: (1) Accurate estimates of 
catch (retained and discarded), (2) accurate catch estimates for 
incidental species with catch caps (haddock and river herring/shad), 
and (3) affordable monitoring for the herring fishery. Herring 
alternatives considered different combinations of monitoring types 
(observers, at-sea monitors, electronic monitoring, portside sampling) 
and coverage targets (100 percent, 75 percent, 50 percent, 25 percent) 
on herring fleets (vessels with Category A or B permits, midwater trawl 
vessels). Non-preferred herring alternatives with coverage targets of 
100 percent or 75 percent would have higher costs than the proposed 
action. Non-preferred herring alternatives for the midwater trawl fleet 
or those with 25-percent coverage targets may not have improved 
monitoring in the herring fishery as well as the proposed action.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 30, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.2, add the definition for ``Observer or monitor'' and 
revise the definitions for ``Electronic monitoring'' and ``Slippage in 
the Atlantic herring fishery'' and ``Slip(s) or slipping catch in the 
Atlantic herring fishery'' in alphabetical order to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Electronic monitoring means a network of equipment that uses a 
software operating system connected to one or more technology 
components, including, but not limited to, cameras and recording 
devices to collect data on catch and vessel operations.
* * * * *
    Observer or monitor means any person certified by NMFS to collect 
operational fishing data, biological data, or economic data through 
direct observation and interaction with operators of commercial fishing 
vessels as part of NMFS' Northeast Fisheries Observer Program. 
Observers or monitors include NMFS-certified fisheries observers, at-
sea monitors, portside samplers, and dockside monitors.
* * * * *
    Slippage in the Atlantic herring fishery means catch that is 
discarded prior to it being brought aboard a vessel issued an Atlantic 
herring permit and/or prior to making it available for sampling and 
inspection by a NMFS-certified observer or monitor. 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 a NMFS-certified 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 a NMFS-certified observer or monitor prior to the catch being 
brought on board or prior to the catch being made available for 
sampling and inspection by a NMFS-approved 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 a NMFS-certified observer or 
monitor, or fish that inadvertently fall out of or off fishing gear as 
gear is being brought on board the vessel.
* * * * *
0
3. In Sec.  648.7, revise paragraph (b)(2)(i) to read as follows:


Sec.  648.7   Record keeping and reporting requirements.

* * * * *
    (b) * * *
    (2) * * *
    (i) Atlantic herring owners or operators issued an All Areas open 
access permit. The owner or operator of a vessel issued an All Areas 
open access permit to fish for herring must report catch (retained and 
discarded) of herring via an IVR system for each week herring was 
caught, unless exempted by the Regional Administrator. IVR reports are 
not required for weeks when no herring was caught. The report shall 
include at least the following information, and any other information 
required by the Regional Administrator: Vessel identification; week in 
which herring are caught; management areas fished; and pounds retained 
and pounds discarded of herring caught in each management area. The IVR 
reporting week begins on Sunday at 0001 hour

[[Page 55676]]

(hr) (12:01 a.m.) local time and ends Saturday at 2400 hr (12 
midnight). Weekly Atlantic herring catch reports must be submitted via 
the IVR system by midnight each Tuesday, eastern time, for the previous 
week. Reports are required even if herring caught during the week has 
not yet been landed. This report does not exempt the owner or operator 
from other applicable reporting requirements of this section.
* * * * *
0
4. Revise Sec.  648.11 and the section heading to read as follows:


Sec.  648.11   Monitoring coverage.

    (a) The Regional Administrator may request any vessel holding a 
permit for Atlantic sea scallops, NE multispecies, monkfish, skates, 
Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish, 
spiny dogfish, Atlantic herring, tilefish, Atlantic surfclam, ocean 
quahog, or Atlantic deep-sea red crab; or a moratorium permit for 
summer flounder; to carry a NMFS-certified fisheries observer. A vessel 
holding a permit for Atlantic sea scallops is subject to the additional 
requirements specified in paragraph (k) of this section. A vessel 
holding an All Areas or Areas 2/3 Limited Access Herring Permit is 
subject to the additional requirements specified in paragraph (m) 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 NMFS-
certified fisheries observer when requested by the Regional 
Administrator in accordance with the requirements of this section.
    (b) If requested by the Regional Administrator or their designees, 
including NMFS-certified 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.
    (c) The Regional Administrator may waive the requirement to be 
sampled by 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.
    (d) An owner or operator of a vessel on which a NMFS-certified 
observer or monitor is embarked must:
    (1) Provide accommodations and food that are equivalent to those 
provided to the crew.
    (2) Allow the observer or monitor access to and use of the vessel's 
communications equipment and personnel upon request for the 
transmission and receipt of messages related to the observer's or 
monitor's duties.
    (3) Provide true vessel locations, by latitude and longitude or 
loran coordinates, as requested by the observer or monitor, and allow 
the observer or monitor access to and use of the vessel's navigation 
equipment and personnel upon request to determine the vessel's 
position.
    (4) Notify the observer or monitor in a timely fashion of when 
fishing operations are to begin and end.
    (5) Allow for the embarking and debarking of the observer or 
monitor, as specified by the Regional Administrator, ensuring that 
transfers of observers or monitors at sea are accomplished in a safe 
manner, via small boat or raft, during daylight hours as weather and 
sea conditions allow, and with the agreement of the observers or 
monitors involved.
    (6) Allow the observer or monitor free and unobstructed access to 
the vessel's bridge, working decks, holding bins, weight scales, holds, 
and any other space used to hold, process, weigh, or store fish.
    (7) Allow the observer or monitor to inspect and copy any the 
vessel's log, communications log, and records associated with the catch 
and distribution of fish for that trip.
    (e) The owner or operator of a vessel issued a summer flounder 
moratorium permit, a scup moratorium permit, a black sea bass 
moratorium permit, a bluefish permit, a spiny dogfish permit, an 
Atlantic herring permit, an Atlantic deep-sea red crab permit, a skate 
permit, or a tilefish permit, if requested by the observer or monitor, 
also must:
    (1) Notify the observer or monitor of any sea turtles, marine 
mammals, summer flounder, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, Atlantic deep-sea red crab, tilefish, skates 
(including discards) or other specimens taken by the vessel.
    (2) Provide the observer or monitor with sea turtles, marine 
mammals, summer flounder, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, Atlantic deep-sea red crab, skates, 
tilefish, or other specimens taken by the vessel.
    (f) NMFS may accept observer or monitor coverage funded by outside 
sources if:
    (1) All coverage conducted by such observers or monitors is 
determined by NMFS to be in compliance with NMFS' observer or monitor 
guidelines and procedures.
    (2) The owner or operator of the vessel complies with all other 
provisions of this part.
    (3) The observer or monitor is approved by the Regional 
Administrator.
    (g) Industry-Funded Monitoring Programs. Fishery management plans 
(FMPs) managed by the New England Fishery Management Council (New 
England Council), including Atlantic Herring, Atlantic Salmon, Atlantic 
Sea Scallops, Deep-Sea Red Crab, Northeast Multispecies, and Northeast 
Skate Complex, may include industry-funded monitoring programs (IFM) to 
supplement existing monitoring required by the Standard Bycatch 
Reporting Methodology (SBRM), Endangered Species Act, and the Marine 
Mammal Protection Act. IFM programs may use observers, monitors, 
including at-sea monitors and portside samplers, and electronic 
monitoring to meet specified IFM coverage targets. The ability to meet 
IFM coverage targets may be constrained by the availability of Federal 
funding to pay NMFS cost responsibilities associated with IFM.
    (1) Guiding Principles for New IFM Programs. The Council's 
development of an IFM program must consider or include the following:
    (i) A clear need or reason for the data collection;
    (ii) Objective design criteria;
    (iii) Cost of data collection should not diminish net benefits to 
the nation nor threaten continued existence of the fishery;
    (iv) Seek less data intensive methods to collect data necessary to 
assure conservation and sustainability when assessing and managing 
fisheries with minimal profit margins;
    (v) Prioritize the use of modern technology to the extent 
practicable; and
    (vi) Incentives for reliable self-reporting.
    (2) Process To Implement and Revise New IFM Programs. New IFM 
programs shall be developed via an amendment to a specific FMP. IFM 
programs implemented in an FMP may be revised via a framework 
adjustment. The details of an IFM program may include, but are not 
limited to:
    (i) Level and type of coverage target,

[[Page 55677]]

    (ii) Rationale for level and type of coverage,
    (iii) Minimum level of coverage necessary to meet coverage goals,
    (iv) Consideration of waivers if coverage targets cannot be met,
    (v) Process for vessel notification and selection,
    (vi) Cost collection and administration,
    (vii) Standards for monitoring service providers, and
    (viii) Any other measures necessary to implement the industry-
funded monitoring program.
    (3) NMFS Cost Responsibilities. IFM programs have two types of 
costs, NMFS and industry costs. Cost responsibilities are delineated by 
the type of cost. NMFS cost responsibilities include the following:
    (i) The labor and facilities associated with training and 
debriefing of monitors;
    (ii) NMFS-issued gear (e.g., electronic reporting aids used by 
human monitors to record trip information);
    (iii) Certification of monitoring service providers and individual 
observers or monitors; performance monitoring to maintain certificates;
    (iv) Developing and executing vessel selection;
    (v) Data processing (including electronic monitoring video audit, 
but excluding service provider electronic video review); and
    (vi) Costs associated with liaison activities between service 
providers, and NMFS, Coast Guard, New England Council, sector managers, 
and other partners.
    (vii) The industry is responsible for all other costs associated 
with IFM programs.
    (4) Prioritization Process to Cover NMFS IFM Cost Responsibilities. 
(i) Available Federal funding refers to any funds in excess of those 
allocated to meet SBRM requirements or the existing IFM programs in the 
Atlantic Sea Scallop and Northeast Multispecies FMPs that may be used 
to cover NMFS cost responsibilities associated with IFM coverage 
targets. If there is no available Federal funding in a given year to 
cover NMFS IFM cost responsibilities, then there shall be no IFM 
coverage during that year. If there is some available Federal funding 
in a given year, but not enough to cover all of NMFS cost 
responsibilities associated with IFM coverage targets, then the New 
England Council will prioritize available Federal funding across IFM 
programs during that year. Existing IFM programs for Atlantic sea 
scallops and Northeast multispecies fisheries shall not be included in 
this prioritization process.
    (ii) Programs with IFM coverage targets shall be prioritized using 
an equal weighting approach, such that any available Federal funding 
shall be divided equally among programs.
    (iii) After NMFS determines the amount of available Federal funding 
for the next fishing year, NMFS shall provide the New England Council 
with the estimated IFM coverage levels for the next fishing year. The 
estimated IFM coverage levels would be based on the equal weighting 
approach and would include the rationale for any deviations from the 
equal weighting approach. The New England Council may recommend 
revisions and additional considerations to the Regional Administrator 
and Science and Research Director.
    (A) If available Federal funding exceeds that needed to pay all of 
NMFS cost responsibilities for administering IFM programs, the New 
England Council may request NMFS to use available funding to help 
offset industry cost responsibilities through reimbursement.
    (B) [Reserved]
    (iv) Revisions to the prioritization process may be made via a 
framework adjustment to all New England FMPs.
    (v) Revisions to the weighting approach for the New England 
Council-led prioritization process may be made via a framework 
adjustment to all New England FMPs or by the New England Council 
considering a new weighting approach at a public meeting, where public 
comment is accepted, and requesting NMFS to publish a notice or 
rulemaking revising the weighting approach. NMFS shall implement 
revisions to the weighting approach in a manner consistent with the 
Administrative Procedure Act.
    (5) IFM Program Monitoring Service Provider Requirements. IFM 
monitoring service provider requirements shall be consistent with 
requirements in paragraphs (h) of this section and observer or monitor 
requirements shall be consistent with requirements in paragraph (i) of 
this section.
    (6) Monitoring Set-Aside. The New England Council may develop a 
monitoring set-aside program for individual FMPs that would devote a 
portion of the annual catch limit for a fishery to help offset the 
industry cost responsibilities for monitoring coverage, including 
observers, at-sea monitors, portside samplers, and electronic 
monitoring.
    (i) The details of a monitoring set-aside program may include, but 
are not limited to:
    (A) The basis for the monitoring set-aside;
    (B) The amount of the set-aside (e.g., quota, days at sea);
    (C) How the set-aside is allocated to vessels required to pay for 
monitoring (e.g., an increased trip limit, differential days at sea 
counting, additional trips, an allocation of the quota);
    (D) The process for vessel notification;
    (E) How funds are collected and administered to cover the 
industry's costs of monitoring; and
    (F) Any other measures necessary to develop and implement a 
monitoring set-aside.
    (ii) The New England Council may develop new monitoring set-asides 
and revise those monitoring set-asides via a framework adjustment to 
the relevant FMP.
    (h) Monitoring service provider approval and responsibilities--(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 NMFS-
certified 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 at: https://www.nefsc.noaa.gov/femad/fsb/.
    (2) [Reserved]
    (3) Contents of application. An application to become an approved 
monitoring service provider shall contain the following:
    (i) Identification of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and staff. If the 
applicant is a corporation, the articles of incorporation must be 
provided. If the applicant is a partnership, the partnership agreement 
must be provided.
    (ii) The permanent mailing address, phone and fax numbers where the 
owner(s) can be contacted for official correspondence, and the current 
physical location, business mailing address, business telephone and fax 
numbers, and business email address for each office.
    (iii) A statement, signed under penalty of perjury, from each owner 
or owners, board members, and officers, if a corporation, that they are 
free from a

[[Page 55678]]

conflict of interest as described under paragraph (h)(6) of this 
section.
    (iv) A statement, signed under penalty of perjury, from each owner 
or owners, board members, and officers, if a corporation, describing 
any criminal conviction(s), Federal contract(s) they have had and the 
performance rating they received on the contracts, and previous 
decertification action(s) while working as an observer or monitor or 
monitoring service provider.
    (v) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to, recruiting, hiring, deployment, 
and personnel administration.
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of a monitoring service provider as set out 
under paragraph (h)(5) of this section, and the arrangements to be 
used.
    (vii) Evidence of holding adequate insurance to cover injury, 
liability, and accidental death for observers or monitors, whether 
contracted or employed by the service provider, during their period of 
employment (including during training). Workers' Compensation and 
Maritime Employer's Liability insurance must be provided to cover the 
observer or monitor, vessel owner, and observer provider. The minimum 
coverage required is $5 million. Monitoring service providers shall 
provide copies of the insurance policies to observers or monitors to 
display to the vessel owner, operator, or vessel manager, when 
requested.
    (viii) Proof that its observers or monitors, whether contracted or 
employed by the service provider, are compensated with salaries that 
meet or exceed the U.S. Department of Labor (DOL) guidelines for 
observers. Observers shall be compensated as Fair Labor Standards Act 
(FLSA) non-exempt employees. Monitoring service providers shall provide 
any other benefits and personnel services in accordance with the terms 
of each observer's or monitor's contract or employment status.
    (ix) The names of its fully equipped, NMFS/FSB certified, observers 
or monitors on staff or a list of its training candidates (with 
resumes) and a request for an appropriate NMFS/FSB 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 
``at sea'' emergency with an observer or monitor, including, but not 
limited to, personal injury, death, harassment, or intimidation. An EAP 
that details a monitoring service provider's responses to emergencies 
involving observers, monitors, or monitoring service provider 
personnel. The EAP shall include communications protocol and 
appropriate contact information in an emergency.
    (4) Application evaluation. (i) NMFS shall review and evaluate each 
application submitted under paragraph (h)(3) of this section. Issuance 
of approval as a monitoring service provider shall be based on 
completeness of the application, and a determination by NMFS of the 
applicant's ability to perform the duties and responsibilities of a 
monitoring service provider, as demonstrated in the application 
information. A decision to approve or deny an application shall be made 
by NMFS within 15 business days of receipt of the application by NMFS.
    (ii) If NMFS approves the application, the monitoring service 
provider's name will be added to the list of approved monitoring 
service providers found on the NMFS/FSB website specified in paragraph 
(h)(1) of this section, and in any outreach information to the 
industry. Approved monitoring service providers shall be notified in 
writing and provided with any information pertinent to its 
participation in the observer or monitor programs.
    (iii) An application shall be denied if NMFS determines that the 
information provided in the application is not complete or the 
evaluation criteria are not met. NMFS shall notify the applicant in 
writing of any deficiencies in the application or information submitted 
in support of the application. An applicant who receives a denial of 
his or her application may present additional information to rectify 
the deficiencies specified in the written denial, provided such 
information is submitted to NMFS within 30 days of the applicant's 
receipt of the denial notification from NMFS. In the absence of 
additional information, and after 30 days from an applicant's receipt 
of a denial, a monitoring service provider is required to resubmit an 
application containing all of the information required under the 
application process specified in paragraph (h)(3) of this section to be 
re-considered for being added to the list of approved monitoring 
service providers.
    (5) Responsibilities of monitoring service providers. (i) A 
monitoring service provider must provide observers or monitors 
certified by NMFS/FSB 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) A monitoring service provider must provide to each of its 
observers or monitors:
    (A) All necessary transportation, lodging costs and support for 
arrangements and logistics of travel for observers and monitors to and 
from the initial location of deployment, to all subsequent vessel 
assignments, to any debriefing locations, and for appearances in Court 
for monitoring-related trials as necessary;
    (B) Lodging, per diem, and any other services necessary for 
observers or monitors assigned to a fishing vessel or to attend an 
appropriate NMFS/FSB training class;
    (C) The required observer or monitor equipment, in accordance with 
equipment requirements listed on the NMFS/FSB website specified in 
paragraph (h)(1) of this section, prior to any deployment and/or prior 
to NMFS observer or monitor 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) Observer and monitor deployment logistics. Each approved 
monitoring service provider must assign an available certified observer 
or monitor to a vessel upon request. Each approved monitoring service 
provider must be accessible 24 hours per day, 7 days per week, to 
enable an owner, operator, or manager of a vessel to secure monitoring 
coverage when requested. The telephone or other notification system 
must be monitored a minimum of four times daily to ensure rapid 
response to industry requests. Monitoring service providers approved 
under paragraph (h) of this section are required to report observer or 
monitor deployments to NMFS for the purpose of determining whether the 
predetermined coverage levels are being achieved in the appropriate 
fishery.
    (iv) Observer deployment limitations. (A) A candidate observer's 
first several

[[Page 55679]]

deployments and the resulting data shall be immediately edited and 
approved after each trip by NMFS/FSB prior to any further deployments 
by that observer. If data quality is considered acceptable, the 
observer would be certified. For further information, see https://www.nefsc.noaa.gov/fsb/training/.
    (B) For the purpose of coverage to meet SBRM requirements, unless 
alternative arrangements are approved by NMFS, a monitoring service 
provider must not deploy any NMFS-certified observer on the same vessel 
for more than two consecutive multi-day trips, and not more than twice 
in any given month for multi-day deployments.
    (C) For the purpose of coverage to meet IFM requirements, a 
monitoring service provider may deploy any NMFS-certified 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.
    (v) Communications with observers and monitors. A monitoring 
service provider must have an employee responsible for observer or 
monitor activities on call 24 hours a day to handle emergencies 
involving observers or monitors or problems concerning observer or 
monitor logistics, whenever observers or monitors are at sea, stationed 
portside, in transit, or in port awaiting vessel assignment.
    (vi) Observer and monitor training requirements. A request for a 
NMFS/FSB Observer or Monitor Training class must be submitted to NMFS/
FSB 45 calendar days in advance of the requested training. The 
following information must be submitted to NMFS/FSB 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/FSB minimum eligibility standards for 
observers or monitors as described on the NMFS/FSB website.
    (vii) Reports and Requirements--(A) Deployment reports. The 
monitoring service provider must report to NMFS/FSB when, where, to 
whom, and to what vessel an observer or monitor has been deployed, as 
soon as practicable, and according to requirements outlined on the 
NMFS/FSB website. The deployment report must be available and 
accessible to NMFS electronically 24 hours a day, 7 days a week. The 
monitoring service provider must ensure that the observer or monitor 
reports to NMFS the required electronic data, as described in the NMFS/
FSB training. Electronic data submission protocols will be outlined in 
training and may include accessing government websites via personal 
computers/devices or submitting data through government issued 
electronics. The monitoring service provider shall provide the raw 
(unedited) data collected by the observer or monitor to NMFS at the 
specified time per program. For further information, see https://www.nefsc.noaa.gov/fsb/scallop/.
    (B) Safety refusals. The monitoring service provider must report to 
NMFS any trip or landing that has been refused due to safety issues 
(e.g., failure to hold a valid USCG Commercial Fishing Vessel Safety 
Examination Decal or to meet the safety requirements of the observer's 
or monitor's safety checklist) within 12 hours of the refusal.
    (C) Biological samples. The monitoring service provider must 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/FSB 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. The monitoring service provider must ensure that 
the observer or monitor remains available to NMFS, either in-person or 
via phone, at NMFS' discretion, including NMFS Office for Law 
Enforcement, for debriefing for at least 2 weeks following any 
monitored trip. 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 occurrence of 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 if the provider is unable 
to respond to an industry request for monitoring coverage. Availability 
report must be available and accessible to NMFS electronically 24 hours 
a day, 7 days a week.
    (F) Incident reports. The monitoring service provider must report 
possible observer or monitor harassment, discrimination, concerns about 
vessel safety or marine casualty, or observer or monitor illness or 
injury; and any information, allegations, or reports regarding observer 
or monitor conflict of interest or breach of the standards of behavior, 
to NMFS/FSB within 12 hours of the event or within 12 hours of learning 
of the event.
    (G) Status report. The monitoring service provider must provide 
NMFS/FSB 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. Any Federally contracted NMFS-certified observer not actively 
deployed on a vessel for 30 days will be placed on Leave of Absence 
(LOA) status (or as specified by NMFS/FSB according to most recent 
Information Technology Security Guidelines at https://www.nefsc.noaa.gov/fsb/memos/. Those Federally contracted NMFS-
certified observers on LOA for 90 days or more will need to conduct an 
exit interview with NMFS/FSB and return any NMFS/FSB issued gear and 
Common Access Card (CAC), unless alternative arrangements are approved 
by NMFS/FSB. NMFS/FSB requires 2-week advance notification when a 
Federally contracted NMFS-certified observer is leaving the program so 
that an exit interview may be arranged and gear returned.
    (H) Vessel contract. The monitoring service provider must submit to 
NMFS/FSB, 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 and monitor contract. The monitoring service provider 
must submit to NMFS/FSB, if requested, a copy of each type of signed 
and valid contract (including all attachments, appendices, addendums, 
and exhibits incorporated into the contract) between

[[Page 55680]]

the monitoring service provider and specific observers or monitors.
    (J) Additional information. The monitoring service provider must 
submit to NMFS/FSB, if requested, copies of any information developed 
and/or used by the monitoring service provider and distributed to 
vessels, observers, or monitors, such as informational pamphlets, 
payment notification, daily rate of monitoring services, description of 
observer or monitor duties, etc.
    (viii) Refusal to deploy an observer or monitor. (A) A monitoring 
service provider may refuse to deploy an observer or monitor on a 
requesting fishing vessel if the monitoring service provider does not 
have an available observer or monitor within the required time and must 
report all refusals to NMFS/FSB.
    (B) A monitoring service provider may refuse to deploy an observer 
or monitor on a requesting fishing vessel if the monitoring service 
provider has determined that the requesting vessel is inadequate or 
unsafe pursuant to the reasons described at Sec.  600.746.
    (C) The monitoring service provider may refuse to deploy an 
observer or monitor on a fishing vessel that is otherwise eligible to 
carry an observer or monitor for any other reason, including failure to 
pay for previous monitoring deployments, provided the monitoring 
service provider has received prior written confirmation from NMFS 
authorizing such refusal.
    (6) Limitations on conflict of interest. A monitoring service 
provider:
    (i) Must not have a direct or indirect interest in a fishery 
managed under Federal regulations, including, but not limited to, a 
fishing vessel, fish dealer, and/or fishery advocacy group (other than 
providing monitoring services);
    (ii) Must assign observers or monitors without regard to any 
preference by representatives of vessels other than when an observer or 
monitor will be deployed for the trip that was selected for coverage; 
and
    (iii) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who conducts fishing or fishing related activities 
that are regulated by NMFS, or who has interests that may be 
substantially affected by the performance or nonperformance of the 
official duties of monitoring service providers.
    (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. Certified observers and monitors under contract 
with observer monitoring service provider that has been removed from 
the list of approved service providers must complete their assigned 
duties for any fishing trips on which the observers or monitors are 
deployed at the time the monitoring service provider is removed from 
the list of approved monitoring service providers. A monitoring service 
provider removed from the list of approved monitoring service providers 
is responsible for providing NMFS with the information required in 
paragraph (h)(5)(vii) of this section following completion of the trip. 
NMFS may consider, but is not limited to, the following in determining 
if a monitoring service provider may remain on the list of approved 
monitoring service providers:
    (i) Failure to meet the requirements, conditions, and 
responsibilities of monitoring service providers specified in 
paragraphs (h)(5) and (h)(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;
    (iv) Unsatisfactory performance ratings on any Federal contracts 
held by the applicant; and
    (v) Evidence of any history of decertification as either an 
observer, monitor, or monitoring service provider.
    (i) Observer or monitor certification. (1) To be certified, 
employees or sub-contractors operating as observers or monitors for 
monitoring service providers approved under paragraph (h) of this 
section. In addition, observers must meet NMFS National Minimum 
Eligibility Standards for observers specified at the National Observer 
Program website: https://www.nmfs.noaa.gov/op/pds/categories/scienceandtechnology.html. For further information, see https://www.st.nmfs.noaa.gov/observer-home/.
    (2) Observer or monitor training. In order to be deployed on any 
fishing vessel, a candidate observer or monitor must have passed an 
appropriate NMFS/FSB Observer Training course and must adhere to all 
NMFS/FSB program standards and policies (refer to website for program 
standards, https://www.nefsc.noaa.gov/fsb/training/). If a candidate 
fails training, the candidate and monitoring service provider shall be 
notified immediately by NMFS/FSB. Observer training may include an 
observer training trip, as part of the observer's training, aboard a 
fishing vessel with a trainer. Refer to the NMFS/FSB website for the 
required number of program specific observer and monitor training 
certification trips for full certification following training, https://www.nefsc.noaa.gov/fsb/training/.
    (3) Observer requirements. All observers must:
    (i) Have a valid NMFS/FSB fisheries observer certification pursuant 
to paragraph (i)(1) of this section;
    (ii) Be physically and mentally capable of carrying out the 
responsibilities of an observer on board fishing vessels, pursuant to 
standards established by NMFS. Such standards are available from NMFS/
FSB website specified in paragraph (h)(1) of this

[[Page 55681]]

section and shall be provided to each approved monitoring service 
provider;
    (iii) Have successfully completed all NMFS-required training and 
briefings for observers before deployment, pursuant to paragraph (i)(2) 
of this section;
    (iv) Hold a current Red Cross (or equivalence) CPR/First Aid 
certification;
    (v) Accurately record their sampling data, write complete reports, 
and report accurately any observations relevant to conservation of 
marine resources or their environment; and
    (vi) Report unsafe sampling conditions, pursuant to paragraph 
(m)(6) of this section.
    (4) Monitor requirements. All monitors must:
    (i) Hold a high school diploma or legal equivalent;
    (ii) Have a valid NMFS/FSB certification pursuant to paragraph 
(i)(1) of this section;
    (iii) Be physically and mentally capable of carrying out the 
responsibilities of a monitor on board fishing vessels, pursuant to 
standards established by NMFS. Such standards are available from NMFS/
FSB website specified in paragraph (h)(1) of this section and shall be 
provided to each approved monitoring service provider;
    (iv) Have successfully completed all NMFS-required training and 
briefings for monitors before deployment, pursuant to paragraph (i)(2) 
of this section;
    (v) Hold a current Red Cross (or equivalence) CPR/First Aid 
certification if the monitor is to be employed as an at-sea monitor;
    (vi) Accurately record their sampling data, write complete reports, 
and report accurately any observations relevant to conservation of 
marine resources or their environment; and
    (vii) Report unsafe sampling conditions, pursuant to paragraph 
(m)(6) of this section.
    (5) Probation and decertification. NMFS may review observer and 
monitor certifications and issue observer and monitor certification 
probation and/or decertification as described in NMFS policy found on 
the NMFS/FSB website specified in paragraph (h)(1) of this section.
    (6) Issuance of decertification. Upon determination that 
decertification is warranted under paragraph (i)(5) of this section, 
NMFS shall issue a written decision to decertify the observer or 
monitor to the observer or monitor and approved monitoring service 
providers via certified mail at the observer's or monitor'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) In the event that a vessel is requested by the Regional 
Administrator to carry a NMFS-certified fisheries observer pursuant to 
paragraph (a) of this section and is also selected to carry an at-sea 
monitor as part of an approved sector at-sea monitoring program 
specified in Sec.  648.87(b)(1)(v) for the same trip, only the NMFS-
certified fisheries observer is required to go on that particular trip.
    (k) Atlantic sea scallop observer program--(1) General. Unless 
otherwise specified, owners, operators, and/or managers of vessels 
issued a Federal scallop permit under Sec.  648.4(a)(2), and specified 
in paragraph (a) of this section, must comply with this section and are 
jointly and severally responsible for their vessel's compliance with 
this section. To facilitate the deployment of at-sea observers, all sea 
scallop vessels issued limited access and LAGC IFQ permits are required 
to comply with the additional notification requirements specified in 
paragraph (k)(2) of this section. When NMFS notifies the vessel owner, 
operator, and/or manager of any requirement to carry an observer on a 
specified trip in either an Access Area or Open Area as specified in 
paragraph (k)(3) of this section, the vessel may not fish for, take, 
retain, possess, or land any scallops without carrying an observer. 
Vessels may only embark on a scallop trip in open areas or Access Areas 
without an observer if the vessel owner, operator, and/or manager has 
been notified that the vessel has received a waiver of the observer 
requirement for that trip pursuant to paragraphs (k)(3) and (k)(4)(ii) 
of this section.
    (2) Vessel notification procedures--(i) Limited access vessels. 
Limited access vessel owners, operators, or managers shall notify NMFS/
FSB by telephone not more than 10 days prior to the beginning of any 
scallop trip of the time, port of departure, open area or specific Sea 
Scallop Access Area to be fished, and whether fishing as a scallop 
dredge, scallop trawl, or general category vessel.
    (ii) LAGC IFQ vessels. LAGC IFQ vessel owners, operators, or 
managers must notify the NMFS/FSB by telephone by 0001 hr of the 
Thursday preceding the week (Sunday through Saturday) that they intend 
to start any open area or access area scallop trip and must include the 
port of departure, open area or specific Sea Scallop Access Area to be 
fished, and whether fishing as a scallop dredge, scallop trawl vessel. 
If selected, up to two trips that start during the specified week 
(Sunday through Saturday) can be selected to be covered by an observer. 
NMFS/FSB must be notified by the owner, operator, or vessel manager of 
any trip plan changes at least 48 hr prior to vessel departure.
    (3) Selection of scallop trips for observer coverage. Based on 
predetermined coverage levels for various permit categories and areas 
of the scallop fishery that are provided by NMFS in writing to all 
observer service providers approved pursuant to paragraph (h) of this 
section, NMFS shall notify the vessel owner, operator, or vessel 
manager whether the vessel must carry an observer, or if a waiver has 
been granted, for the specified scallop trip, within 24 hr of the 
vessel owner's, operator's, or vessel manager's notification of the 
prospective scallop trip, as specified in paragraph (k)(2) of this 
section. Any request to carry an observer may be waived by NMFS. All 
waivers for observer coverage shall be issued to the vessel by VMS so 
as to have on-board verification of the waiver. A vessel may not fish 
in an area with an observer waiver confirmation number that does not 
match the scallop trip plan that was called in to NMFS. Confirmation 
numbers for trip notification calls are only valid for 48 hr from the 
intended sail date.
    (4) Procurement of observer services by scallop vessels. (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 certified 
through the observer training class operated by the NMFS/FSB 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 at https://www.nefsc.noaa.gov/femad/fsb/. The observer service 
provider may take up to 48 hr to arrange for observer

[[Page 55682]]

deployment for the specified scallop trip.
    (ii) An owner, operator, or vessel manager of a vessel that cannot 
procure a certified observer within 48 hr of the advance notification 
to the provider due to the unavailability of an observer may request a 
waiver from NMFS/FSB 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/FSB shall issue 
such a waiver within 24 hr, if the conditions of this paragraph 
(g)(4)(ii) are met. A vessel may not begin the trip without being 
issued a waiver.
    (5) Owners of scallop vessels shall be responsible for paying the 
cost of the observer for all scallop trips on which an observer is 
carried onboard the vessel, regardless of whether the vessel lands or 
sells sea scallops on that trip, and regardless of the availability of 
set-aside for an increased possession limit or reduced DAS accrual 
rate. The owners of vessels that carry an observer may be compensated 
with a reduced DAS accrual rate for open area scallop trips or 
additional scallop catch per day in Sea Scallop Access Areas or 
additional catch per open area or access area trip for LAGC IFQ trips 
in order to help defray the cost of the observer, under the program 
specified in Sec. Sec.  648.53 and 648.60.
    (i) Observer service providers shall establish the daily rate for 
observer coverage on a scallop vessel on an Access Area trip or open 
area DAS or IFQ scallop trip consistent with paragraphs (k)(5)(i)(A) 
and (B), respectively, of this section.
    (A) Access Area trips. (1) For purposes of determining the daily 
rate for an observed scallop trip on a limited access vessel in a Sea 
Scallop Access Area when that specific Access Area's observer set-aside 
specified in Sec.  648.60(d)(1) has not been fully utilized, a service 
provider may charge a vessel owner for no more than the time an 
observer boards a vessel until the vessel disembarks (dock to dock), 
where ``day'' is defined as a 24-hr period, or any portion of a 24-hr 
period, regardless of the calendar day. For example, if a vessel with 
an observer departs on July 1 at 10 p.m. and lands on July 3 at 1 a.m., 
the time at sea equals 27 hr, which would equate to 2 full ``days.''
    (2) For purposes of determining the daily rate in a specific Sea 
Scallop Access Area for an observed scallop trip on a limited access 
vessel taken after NMFS has announced the industry-funded observer set-
aside in that specific Access Area has been fully utilized, a service 
provider may charge a vessel owner for no more than the time an 
observer boards a vessel until the vessel disembarks (dock to dock), 
where ``day'' is defined as a 24-hr period, and portions of the other 
days would be pro-rated at an hourly charge (taking the daily rate 
divided by 24). For example, if a vessel with an observer departs on 
July 1 at 10 p.m. and lands on July 3 at 1 a.m., the time spent at sea 
equals 27 hr, which would equate to 1 day and 3 hr.
    (3) For purposes of determining the daily rate in a specific Sea 
Scallop Access Area for observed scallop trips on an LAGC vessel, 
regardless of the status of the industry-funded observer set-aside, a 
service provider may charge a vessel owner for no more than the time an 
observer boards a vessel until the vessel disembarks (dock to dock), 
where ``day'' is defined as a 24-hr period, and portions of the other 
days would be pro-rated at an hourly charge (taking the daily rate 
divided by 24). For example, if a vessel with an observer departs on 
July 1 at 10 p.m. and lands on July 3 at 1 a.m., the time spent at sea 
equals 27 hr, which would equate to 1 day and 3 hr.
    (B) Open area scallop trips. For purposes of determining the daily 
rate for an observed scallop trip for DAS or LAGC IFQ open area trips, 
regardless of the status of the industry-funded observer set-aside, a 
service provider shall charge dock to dock where ``day'' is defined as 
a 24-hr period, and portions of the other days would be pro-rated at an 
hourly charge (taking the daily rate divided by 24). For example, if a 
vessel with an observer departs on the July 1st at 10 p.m. and lands on 
July 3rd at 1 a.m., the time at sea equals 27 hr, so the provider would 
charge 1 day and 3 hr.
    (ii) NMFS shall determine any reduced DAS accrual rate and the 
amount of additional pounds of scallops per day fished in a Sea Scallop 
Access Area or on an open area LAGC IFQ trips for the applicable 
fishing year based on the economic conditions of the scallop fishery, 
as determined by best available information. Vessel owners and observer 
service providers shall be notified through the Small Entity Compliance 
Guide of any DAS accrual rate changes and any changes in additional 
pounds of scallops determined by the Regional Administrator to be 
necessary. NMFS shall notify vessel owners and observer providers of 
any adjustments.
    (iii) Owners of scallop vessels shall pay observer service 
providers for observer services within 45 days of the end of a fishing 
trip on which an observer deployed.
    (6) When the available DAS or TAC set-aside for observer coverage 
is exhausted, vessels shall still be required to carry an observer as 
specified in this section, and shall be responsible for paying for the 
cost of the observer, but shall not be authorized to harvest additional 
pounds or fish at a reduced DAS accrual rate.
    (l) NE multispecies observer coverage--(1) Pre-trip notification. 
Unless otherwise specified in this paragraph (l), or notified 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 advanced notice to 
NMFS of the vessel name, permit number, and sector to which the vessel 
belongs, if applicable; contact name and telephone number for 
coordination of observer 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 at least 48 hr 
prior to departing port on any trip declared into the NE multispecies 
fishery pursuant to Sec.  648.10 or Sec.  648.85, as instructed by the 
Regional Administrator, for the purposes of selecting vessels for 
observer deployment. 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 notifications, 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 date, time, 
port of departure, area to be fished, whether a monkfish DAS will be 
used, and gear type to be used for each trip during that week. 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 an observer 
notification or a waiver by NMFS.
    (2) Vessel selection for observer coverage. NMFS shall notify the 
vessel owner, operator, or manager whether the vessel must carry an 
observer, or if a waiver has been granted, for the

[[Page 55683]]

specified trip within 24 hr of the vessel owner's, operator's or 
manager's notification of the prospective trip, as specified in 
paragraph (l)(1) of this section. All trip notifications shall be 
issued a unique confirmation number. A vessel may not fish on a NE 
multispecies DAS or sector trip with an observer waiver confirmation 
number that does not match the trip plan that was called in to NMFS. 
Confirmation numbers for trip notification calls are valid for 48 hr 
from the intended sail date. If a trip is interrupted and returns to 
port due to bad weather or other circumstance beyond the operator's 
control, and goes back out within 48 hr, the same confirmation number 
and observer status remains. If the layover time is greater than 48 hr, 
a new trip notification must be made by the operator, owner, or manager 
of the vessel.
    (3) NE multispecies monitoring program goals and objectives. 
Monitoring programs established for the NE multispecies are to be 
designed and evaluated consistent with the following goals and 
objectives:
    (i) Improve documentation of catch:
    (A) Determine total catch and effort, for each sector and common 
pool, of target or regulated species; and
    (B) Achieve coverage level sufficient to minimize effects of 
potential monitoring bias to the extent possible while maintaining as 
much flexibility as possible to enhance fleet viability.
    (ii) Reduce the cost of monitoring:
    (A) Streamline data management and eliminate redundancy;
    (B) Explore options for cost-sharing and deferment of cost to 
industry; and
    (C) Recognize opportunity costs of insufficient monitoring.
    (iii) Incentivize reducing discards:
    (A) Determine discard rate by smallest possible strata while 
maintaining cost-effectiveness; and
    (B) Collect information by gear type to accurately calculate 
discard rates.
    (iv) Provide additional data streams for stock assessments:
    (A) Reduce management and/or biological uncertainty; and
    (B) Perform biological sampling if it may be used to enhance 
accuracy of mortality or recruitment calculations.
    (v) Enhance safety of monitoring program.
    (vi) Perform periodic review of monitoring program for 
effectiveness.
    (m) Atlantic herring monitoring coverage--(1) Monitoring 
requirements. (i) In addition to the requirement for any vessel holding 
an Atlantic herring permit to carry a NMFS-certified observer described 
in paragraph (a) of this section, vessels issued an All Areas or Areas 
2/3 Limited Access Herring Permit are subject to industry-funded 
monitoring (IFM) requirements on declared Atlantic herring trips, 
unless the vessel is carrying a NMFS-certified observer to fulfill 
Standard Bycatch Reporting Methodology requirements. An owner of a 
midwater trawl vessel, required to carry a NMFS-certified observer when 
fishing in Northeast Multispecies Closed Areas at Sec.  648.202(b), may 
purchase an IFM high volume fisheries (HVF) observer to access Closed 
Areas on a trip-by-trip basis. General requirements for IFM programs in 
New England Council FMPs are specified in paragraph (g) of this 
section. Possible IFM monitoring for the Atlantic herring fishery 
includes NMFS-certified observers, at-sea monitors, and electronic 
monitoring and portside samplers, as defined in Sec.  648.2.
    (A) IFM HVF observers shall collect the following information:
    (1) Fishing gear information (e.g., size of nets, mesh sizes, and 
gear configurations);
    (2) Tow-specific information (e.g., depth, water temperature, wave 
height, and location and time when fishing begins and ends);
    (3) Species, weight, and disposition of all retained and discarded 
catch (fish, sharks, crustaceans, invertebrates, and debris) on 
observed hauls;
    (4) Species, weight, and disposition of all retained catch on 
unobserved hauls;
    (5) Actual catch weights whenever possible, or alternatively, 
weight estimates derived by sub-sampling;
    (6) Whole specimens, photos, length information, and biological 
samples (e.g., scales, otoliths, and/or vertebrae from fish, 
invertebrates, and incidental takes);
    (7) Information on interactions with protected species, such as sea 
turtles, marine mammals, and sea birds; and
    (8) Vessel trip costs (i.e., operational costs for trip including 
food, fuel, oil, and ice).
    (B) IFM HVF at-sea monitors shall collect the following 
information:
    (1) Fishing gear information (e.g., size of nets, mesh sizes, and 
gear configurations);
    (2) Tow-specific information (e.g., depth, water temperature, wave 
height, and location and time when fishing begins and ends);
    (3) Species, weight, and disposition of all retained and discarded 
catch (fish, sharks, crustaceans, invertebrates, and debris) on 
observed hauls;
    (4) Species, weight, and disposition of all retained catch on 
unobserved hauls;
    (5) Actual catch weights whenever possible, or alternatively, 
weight estimates derived by sub-sampling;
    (6) Length data, along with whole specimens and photos to verify 
species identification, on retained and discarded catch;
    (7) Information on and biological samples from interactions with 
protected species, such as sea turtles, marine mammals, and sea birds; 
and
    (8) Vessel trip costs (i.e., operational costs for trip including 
food, fuel, oil, and ice).
    (9) The New England Council may recommend that at-sea monitors 
collect additional biological information upon request. Revisions to 
the duties of an at-sea monitor, such that additional biological 
information would be collected, may be done via a framework adjustment. 
At-sea monitor duties may also be revised to collect additional 
biological information by considering the issue at a public meeting, 
where public comment is accepted, and requesting NMFS to publish a 
notice or rulemaking revising the duties for at-sea monitors. NMFS 
shall implement revisions to at-sea monitor duties in accordance with 
the APA.
    (C) IFM Portside samplers shall collect the following information:
    (1) Species, weight, and disposition of all retained catch (fish, 
sharks, crustaceans, invertebrates, and debris) on sampled trips;
    (2) Actual catch weights whenever possible, or alternatively, 
weight estimates derived by sub-sampling; and
    (3) Whole specimens, photos, length information, and biological 
samples (i.e., scales, otoliths, and/or vertebrae from fish, 
invertebrates, and incidental takes).
    (ii) Vessels issued an All Areas or Areas 2/3 Limited Access 
Herring Permit are subject to IFM at-sea monitoring coverage. If the 
New England Council determines that electronic monitoring, used in 
conjunction with portside sampling, is an adequate substitute for at-
sea monitoring on vessels fishing with midwater trawl gear, and it is 
approved by the Regional Administrator as specified in (m)(1)(iii), 
then owners of vessels issued an All Areas or Areas 2/3 Limited Access 
Herring Permit may choose either IFM at-sea monitoring coverage or IFM 
electronic monitoring and IFM portside sampling coverage, pursuant with 
requirements in paragraphs (h) and (i) of this section. Once owners of 
vessels issued an All Areas or Areas 2/3 Limited Access Herring Permit 
may choose an IFM monitoring type, vessel owners must select one IFM 
monitoring type per fishing year and notify NMFS of their selected IFM 
monitoring type via selection form six months in advance of

[[Page 55684]]

the beginning of the fishing year. NMFS will provide vessels owners 
with selection forms no later than June 1 of each year.
    (A) In a future framework adjustment, the New England Council may 
consider if electronic monitoring and portside sampling coverage is an 
adequate substitute for at-sea monitoring coverage for Atlantic herring 
vessels that fish with purse seine and/or bottom trawl gear.
    (B) IFM coverage targets for the Atlantic herring fishery are 
calculated by NMFS, in consultation with New England Council staff.
    (C) If IFM coverage targets do not match for the Atlantic herring 
and Atlantic mackerel fisheries, then the higher IFM coverage target 
would apply on trips declared into both fisheries.
    (D) Vessels intending to land less than 50 mt of Atlantic herring 
are exempt from IFM requirements, provided that the vessel requests and 
is issued a waiver prior to departing on that trip, consistent with 
paragraphs (m)(2)(iii)(B) and (m)(3) of this section. Vessels issued a 
waiver must land less than 50 mt of Atlantic herring on that trip.
    (E) A wing vessel (i.e., midwater trawl vessel pair trawling with 
another midwater trawl vessel) is exempt from IFM requirements on a 
trip, provided the wing vessel does not possess or land any fish on 
that trip and requests and is issued a waiver prior to departing on 
that trip, consistent with paragraphs (m)(2)(iii)(C) and (m)(3) of this 
section.
    (F) Two years after implementation of IFM in the Atlantic herring 
fishery, the New England Council will examine the results of any 
increased coverage in the Atlantic herring fishery and consider if 
adjustments to the IFM coverage targets are warranted.
    (iii) Electronic monitoring and portside sampling coverage may be 
used in place of at-sea monitoring coverage in the Atlantic herring 
fishery, if the electronic monitoring technology is deemed sufficient 
by the New England Council. The Regional Administrator, in consultation 
with the New England Council, may approve the use of electronic 
monitoring and portside sampling for the Atlantic herring fishery in a 
manner consistent with the Administrative Procedure Act, with final 
measures published in the Federal Register. A vessel electing to use 
electronic monitoring and portside sampling in lieu of at-sea 
monitoring must develop a vessel monitoring plan to implement an 
electronic monitoring and portside sampling program that NMFS 
determines is sufficient for monitoring catch, discards and slippage 
events. The electronic monitoring and portside sampling program shall 
be reviewed and approved by NMFS as part of a vessel's monitoring plan 
on a yearly basis in a manner consistent with the Administrative 
Procedure Act.
    (iv) Owners, operators, or managers of vessels issued an All Areas 
Limited Access Herring Permit or Areas 2/3 Limited Access Herring 
Permit are responsible for their vessel's compliance with IFM 
requirements. When NMFS notifies a vessel owner, operator, or manager 
of the requirement to have monitoring coverage on a specific declared 
Atlantic herring trip, that vessel may not fish for, take, retain, 
possess, or land any Atlantic herring without the required monitoring 
coverage. Vessels may only embark on a declared Atlantic herring trip 
without the required monitoring coverage if the vessel owner, operator, 
and/or manager has been notified that the vessel has received a waiver 
for the required monitoring coverage for that trip, pursuant to 
paragraphs (m(2)(iii)(B) and (C) and paragraph (m)(3) of this section.
    (v) To provide the required IFM coverage aboard declared Atlantic 
herring trips, NMFS-certified observers and monitors must hold a high 
volume fisheries certification from NMFS/FSB. See details of high 
volume certification at https://www.nefsc.noaa.gov/fsb/training/.
    (2) Pre-trip notification. (i) At least 48 hr prior to the 
beginning of any trip on which a vessel may harvest, possess, or land 
Atlantic herring, the owner, operator, or manager of a vessel issued a 
Limited Access Herring Permit, or a vessel issued an Areas 2/3 Open 
Access Herring Permit on a declared herring trip, or a vessel issued an 
All Areas Open Access Herring Permit fishing with midwater trawl gear 
in Management Areas 1A, 1B, and/or 3, as defined in Sec.  648.200(f)(1) 
and (3), or a vessel acting as a herring carrier must notify NMFS/FSB 
of the trip.
    (ii) The notification to NMFS/FSB must include the following 
information: Vessel name or names in the cases of paired midwater 
trawlers, permit category, and permit number; contact name for 
coordination of monitoring coverage; telephone number for contact; the 
date, time, and port of departure; gear type; target species; trip 
length and port of landing; and intended area of fishing.
    (iii) For vessels issued an All Areas Limited Access Herring Permit 
or Areas 2/3 Limited Access Herring Permit, the trip notification must 
also include the following requests, if appropriate:
    (A) For IFM NMFS-certified observer coverage aboard vessels fishing 
with midwater trawl gear to access the Northeast Multispecies Closed 
Areas, consistent with requirements at Sec.  648.202(b), at any point 
during the trip;
    (B) For a waiver of IFM requirements on a trip that shall land less 
than 50 mt of Atlantic herring; and
    (C) For a waiver of IFM requirements on trip by a wing vessel as 
described in paragraph (m)(ii)(E) of this section.
    (iv) Trip notification must be provided no more than 9 days in 
advance of each fishing trip. The vessel owner, operator, or manager 
must notify NMFS/FSB of any trip plan changes at least 12 hr prior to 
vessel departure from port.
    (3) Selection of trips for monitoring coverage. NMFS shall notify 
the owner, operator, and/or manager of a vessel with an Atlantic 
herring permit whether a declared Atlantic herring trip requires 
coverage by a NMFS-funded observer or whether a trip requires IFM 
coverage. NMFS shall also notify the owner, operator, and/or manager of 
vessel if a waiver has been granted, either for the NMFS-funded 
observer or for IFM coverage, as specified in paragraph (m)(2) of this 
section. All waivers for monitoring coverage shall be issued to the 
vessel by VMS so that there is an on-board verification of the waiver. 
A waiver is invalid if the fishing behavior on that trip is 
inconsistent with the terms of the waiver.
    (4) Procurement of monitoring services by Atlantic herring vessels. 
(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 individual certified through training classes operated by the NMFS/
FSB and from a monitoring service provider approved by NMFS under 
paragraph (h) of this section. The owner, operator, or vessel manager 
of a vessel selected for monitoring must contact a monitoring service 
provider prior to the beginning of the trip and the monitoring service 
provider will notify the vessel owner, operator, or manager whether 
monitoring is available. A list of approved monitoring service 
providers shall be posted on the NMFS/FSB website at https://www.nefsc.noaa.gov/femad/fsb/.
    (ii) An owner, operator, or vessel manager of a vessel that cannot 
procure monitoring due to the unavailability of monitoring may request 
a waiver from NMFS/FSB from the requirement for monitoring on that 
trip, but only if the owner, operator, or vessel manager has contacted 
all of the available monitoring service providers to secure monitoring 
and no monitoring is available. NMFS/FSB shall issue a waiver, if the

[[Page 55685]]

conditions of this paragraph (m)(4)(ii) are met. A vessel without 
monitoring coverage may not begin a declared Atlantic herring trip 
without having been issued a waiver.
    (iii) Vessel owners shall pay service providers for monitoring 
services within 45 days of the end of a fishing trip that was 
monitored.
    (5) When vessels issued limited access herring permits are working 
cooperatively in the Atlantic herring fishery, including pair trawling, 
purse seining, and transferring herring at-sea, each vessel must 
provide to observers or monitors, when requested, the estimated weight 
of each species brought on board and the estimated weight of each 
species released on each tow.
    (6) Sampling requirements for NMFS-certified observer and monitors. 
In addition to the requirements at Sec.  648.11(d)(1) through (7), an 
owner or operator of a vessel issued a limited access herring permit on 
which a NMFS-certified observer or monitor is embarked must provide 
observers or monitors:
    (i) A safe sampling station adjacent to the fish deck, including: A 
safety harness, if footing is compromised and grating systems are high 
above the deck; a safe method to obtain samples; and a storage space 
for baskets and sampling gear.
    (ii) Reasonable assistance to enable observers or monitors to carry 
out their duties, including but not limited to assistance with: 
Obtaining and sorting samples; measuring decks, codends, and holding 
bins; collecting bycatch when requested by the observers or monitors; 
and collecting and carrying baskets of fish when requested by the 
observers or monitors.
    (iii) Advance notice when pumping will be starting; when sampling 
of the catch may begin; and when pumping is coming to an end.
    (iv) Visual access to the net, the codend of the net, and the purse 
seine bunt and any of its contents after pumping has ended and before 
the pump is removed from the net. On trawl vessels, the codend 
including any remaining contents must be brought on board, unless 
bringing the codend on board is not possible. If bringing the codend on 
board is not possible, the vessel operator must ensure that the 
observer or monitor can see the codend and its contents as clearly as 
possible before releasing its contents.
    (7) Measures to address slippage. (i) No vessel issued a limited 
access herring permit may slip catch, as defined at Sec.  648.2, except 
in the following circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) A mechanical failure, including gear damage, precludes bringing 
some or all of the catch on board the vessel for inspection; or
    (C) The vessel operator determines that pumping becomes impossible 
as a result of spiny dogfish clogging the pump intake. The vessel 
operator shall take reasonable measures, such as strapping and 
splitting the net, to remove all fish which can be pumped from the net 
prior to release.
    (ii) Vessels may make test tows without pumping catch on board if 
the net is re-set without releasing its contents provided that all 
catch from test tows is available to the observer to sample when the 
next tow is brought on board for sampling.
    (iii) If a vessel issued any limited access herring permit slips 
catch, the vessel operator must report the slippage event on the 
Atlantic herring daily VMS catch report and indicate the reason for 
slipping catch. Additionally, the vessel operator must complete and 
sign a Released Catch Affidavit detailing: The vessel name and permit 
number; the VTR serial number; where, when, and the reason for slipping 
catch; the estimated weight of each species brought on board or slipped 
on that tow. A completed affidavit must be submitted to NMFS within 48 
hr of the end of the trip.
    (iv) If a vessel issued an All Areas or Areas 2/3 Limited Access 
Herring permit slips catch for any of the reasons described in 
paragraph (m)(4)(i) of this section when an observer or monitor is 
aboard, the vessel operator must move at least 15 nm (27.78 km) from 
the location of the slippage event before deploying any gear again, and 
must stay at least 15 nm (27.78 km) away from the slippage event 
location for the remainder of the fishing trip.
    (v) If a vessel issued an All Areas or Areas 2/3 Limited Access 
Herring permit slips catch for any reason on a trip selected by NMFS 
for portside sampling, pursuant to paragraph (m)(3) of this section, 
the vessel operator must move at least 15 nm (27.78 km) from the 
location of the slippage event before deploying any gear again, and 
must stay at least 15 nm (27.78 km) away from the slippage event 
location for the remainder of the fishing trip.
    (vi) If catch is slipped by a vessel issued an All Areas or Areas 
2/3 Limited Access Herring permit for any reason not described in 
paragraph (m)(4)(i) of this section when an observer or monitor is 
aboard, the vessel operator must immediately terminate the trip and 
return to port. No fishing activity may occur during the return to 
port.
    (n) Atlantic mackerel, squid, and butterfish observer coverage--(1) 
Pre-trip notification. (i) A vessel issued a limited access Atlantic 
mackerel permit, as specified at Sec.  648.4(a)(5)(iii), must, for the 
purposes of observer deployment, have a representative provide notice 
to NMFS of the vessel name, vessel permit number, contact name for 
coordination of observer deployment, telephone number or email address 
for contact; and the date, time, port of departure, gear type, and 
approximate trip duration, at least 48 hr, but no more than 10 days, 
prior to beginning any fishing trip, unless it complies with the 
possession restrictions in paragraph (n)(1)(iii) of this section.
    (ii) A vessel that has a representative provide notification to 
NMFS as described in paragraph (n)(1)(i) of this section may only 
embark on a mackerel trip without an observer if a vessel 
representative has been notified by NMFS that the vessel has received a 
waiver of the observer requirement for that trip. NMFS shall notify a 
vessel representative whether the vessel must carry an observer, or if 
a waiver has been granted, for the specific mackerel trip, within 24 hr 
of the vessel representative's notification of the prospective mackerel 
trip, as specified in paragraph (n)(1)(i) of this section. Any request 
to carry an observer may be waived by NMFS. A vessel that fishes with 
an observer waiver confirmation number that does not match the mackerel 
trip plan that was called in to NMFS is prohibited from fishing for, 
possessing, harvesting, or landing mackerel except as specified in 
paragraph (n)(1)(iii) of this section. Confirmation numbers for trip 
notification calls are only valid for 48 hr from the intended sail 
date.
    (iii) Trip limits: A vessel issued a limited access mackerel 
permit, as specified in Sec.  648.4(a)(5)(iii), that does not have a 
representative provide the trip notification required in paragraph 
(n)(1)(i) of this section is prohibited from fishing for, possessing, 
harvesting, or landing more than 20,000 lb (9.07 mt) of mackerel per 
trip at any time, and may only land mackerel once on any calendar day, 
which is defined as the 24-hr period beginning at 0001 hours and ending 
at 2400 hours.
    (iv) If a vessel issued a limited access Atlantic mackerel permit, 
as specified in Sec.  648.4(a)(5)(iii), intends to possess, harvest, or 
land more than 20,000 lb (9.07 mt) of mackerel per trip or per

[[Page 55686]]

calendar day, and has a representative notify NMFS of an upcoming trip, 
is selected by NMFS to carry an observer, and then cancels that trip, 
the representative is required to provide notice to NMFS of the vessel 
name, vessel permit number, contact name for coordination of observer 
deployment, and telephone number or email address for contact, and the 
intended date, time, and port of departure for the cancelled trip prior 
to the planned departure time. In addition, if a trip selected for 
observer coverage is cancelled, then that vessel is required to carry 
an observer, provided an observer is available, on its next trip.
    (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 a NMFS-certified 
observer is embarked must provide observers:
    (i) A safe sampling station adjacent to the fish deck, including: A 
safety harness, if footing is compromised and grating systems are high 
above the deck; a safe method to obtain samples; and a storage space 
for baskets and sampling gear.
    (ii) Reasonable assistance to enable observers to carry out their 
duties, including but not limited to assistance with: Obtaining and 
sorting samples; measuring decks, codends, and holding bins; collecting 
bycatch when requested by the observers; and collecting and carrying 
baskets of fish when requested by the observers.
    (iii) Advance notice when pumping will be starting; when sampling 
of the catch may begin; and when pumping is coming to an end.
    (3) Measures to address slippage. (i) No vessel issued a limited 
access Atlantic mackerel permit or a longfin squid/butterfish 
moratorium permit may slip catch, as defined at Sec.  648.2, except in 
the following circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) A mechanical failure, including gear damage, precludes bringing 
some or all of the catch on board the vessel for sampling and 
inspection; or
    (C) The vessel operator determines that pumping becomes impossible 
as a result of spiny dogfish clogging the pump intake. The vessel 
operator shall take reasonable measures, such as strapping and 
splitting the net, to remove all fish that can be pumped from the net 
prior to release.
    (ii) If a vessel issued any limited access Atlantic mackerel permit 
slips catch, the vessel operator must report the slippage event on the 
Atlantic mackerel and longfin squid daily VMS catch report and indicate 
the reason for slipping catch. Additionally, vessels issued a limited 
Atlantic mackerel permit or a longfin squid/butterfish moratorium 
permit, the vessel operator must complete and sign a Released Catch 
Affidavit detailing: The vessel name and permit number; the VTR serial 
number; where, when, and the reason for slipping catch; the estimated 
weight of each species brought on board or slipped on that tow. A 
completed affidavit must be submitted to NMFS within 48 hr of the end 
of the trip.
    (iii) If a vessel issued a limited access Atlantic mackerel permit 
slips catch for any of the reasons described in paragraph (n)(3)(i) of 
this section, the vessel operator must move at least 15 nm (27.8 km) 
from the location of the slippage event before deploying any gear 
again, and must stay at least 15 nm (27.8 km) from the slippage event 
location for the remainder of the fishing trip.
    (iv) If catch is slipped by a vessel issued a limited access 
Atlantic mackerel permit for any reason not described in paragraph 
(n)(3)(i) of this section, the vessel operator must immediately 
terminate the trip and return to port. No fishing activity may occur 
during the return to port.
0
5. Amend Sec.  648.14 by revising paragraphs (e), (r)(1)(vi)(A), 
(r)(2)(v), and (r)(2)(ix) through (xi) and adding paragraphs 
(r)(2)(xiii) and (xiv) to read as follows:


Sec.  648.14   Prohibitions.

* * * * *
    (e) Observer program. It is unlawful for any person to do any of 
the following:
    (1) Assault, resist, oppose, impede, harass, intimidate, or 
interfere with or bar by command, impediment, threat, or coercion any 
NMFS-certified observer or monitor conducting his or her duties; any 
authorized officer conducting any search, inspection, investigation, or 
seizure in connection with enforcement of this part; any official 
designee of the Regional Administrator conducting his or her duties, 
including those duties authorized in Sec.  648.7(g).
    (2) Refuse monitoring coverage by a NMFS-certified observer or 
monitor if selected for monitoring coverage by the Regional 
Administrator or the Regional Administrator's designee.
    (3) Fail to provide information, notification, accommodations, 
access, or reasonable assistance to either a NMFS-certified observer or 
monitor conducting his or her duties as specified in Sec.  648.11.
    (4) Submit false or inaccurate data, statements, or reports.
* * * * *
    (r) * * *
    (1) * * *
    (vi) * * *
    (A) For the purposes of observer deployment, fail to notify NMFS at 
least 48 hr prior to departing on a declared herring trip with a vessel 
issued an All Areas Limited Access Herring Permit and/or an Area 2 and 
3 Limited Access Herring Permit and fishing with midwater trawl or 
purse seine gear, or on a trip with a vessel issued a Limited Access 
Incidental Catch Herring Permit and/or an Open Access Herring Permit 
that is fishing with midwater trawl gear in Management Areas 1A, 1B, 
and/or 3, as defined in Sec.  648.200(f)(1) and (3), pursuant to the 
requirements in Sec.  648.80(d) and (e).
* * * * *
    (2) * * *
    (v) Fish with midwater trawl gear in any Northeast Multispecies 
Closed Area, as defined in Sec.  648.81(a)(3),(4), (5), and (c)(3) and 
(4), without a NMFS-certified observer on board, if the vessel has been 
issued an Atlantic herring permit.
    * * *
    (ix) For vessels with All Areas or Areas 2/3 Limited Access Herring 
Permits, fail to move 15 nm (27.78 km), as required by Sec. Sec.  
648.11(m)(8)(iv) and (v) and Sec.  648.202(b)(4)(iv).
    (x) For vessels with All Areas or Areas 2/3 Limited Access Herring 
Permits, fail to immediately return to port, as required by Sec.  
648.11(m)(8)(vi) and Sec.  648.202(b)(4)(iv).
    (xi) Fail to complete, sign, and submit a Released Catch Affidavit 
as required by Sec.  648.11(m)(8)(iii) and Sec.  648.202(b)(4)(ii).
    * * *
    (xiii) For vessels with All Areas or Areas 2/3 Limited Access 
Herring Permits, fail to comply with industry-funded monitoring 
requirements at Sec.  648.11(m).
    (xiv) For a vessel with All Areas or Areas 2/3 Limited Access 
Herring Permit, fail to comply with its NMFS-approved vessel monitoring 
plan requirements, as described at Sec.  648.11(m).
* * * * *
0
6. In Sec.  648.80 revise paragraph (d)(5) and (e)(5) to read as 
follows:

[[Page 55687]]

Sec.  648.80   NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (5) To fish for herring under this exemption, a vessel issued an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit fishing on a declared herring trip, or a vessel 
issued a Limited Access Incidental Catch Herring Permit and/or an Open 
Access Herring Permit fishing with midwater trawl gear in Management 
Areas 1A, 1B, and/or 3, as defined in Sec.  648.200(f)(1) and (3), must 
provide notice of the following information to NMFS at least 48 hr 
prior to beginning any trip into these areas for the purposes of 
observer deployment: Vessel name; contact name for coordination of 
observer deployment; telephone number for contact; the date, time, and 
port of departure; and
* * * * *
    (e) * * *
    (5) To fish for herring under this exemption, vessels that have an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit must provide notice to NMFS of the vessel name; 
contact name for coordination of observer deployment; telephone number 
for contact; and the date, time, and port of departure, at least 48 hr 
prior to beginning any trip into these areas for the purposes of 
observer deployment; and
* * * * *
0
7. In Sec.  648.86 revise paragraph (a)(3)(ii)(A)(1) to read as 
follows:


Sec.  648.86   NE Multispecies possession restrictions.

* * * * *
    (a) * * *
    (3) * * *
    (ii) * * *
    (A) * * *
    (1) 648.86(a)(3)(ii) Haddock incidental catch cap. (A)(1) When the 
Regional Administrator has determined that the incidental catch 
allowance for a given haddock stock, as specified in Sec.  
648.90(a)(4)(iii)(D), has been caught, no vessel issued an Atlantic 
herring permit and fishing with midwater trawl gear in the applicable 
stock area, i.e., the Herring GOM Haddock Accountability Measure (AM) 
Area or Herring GB Haddock AM Area, as defined in paragraphs 
(a)(3)(ii)(A)(2) and (3) of this section, may fish for, possess, or 
land herring in excess of 2,000 lb (907.2 kg) per trip in or from that 
area, unless all herring possessed and landed by the vessel were caught 
outside the applicable AM Area and the vessel's gear is stowed and not 
available for immediate use as defined in Sec.  648.2 while transiting 
the AM Area. Upon this determination, the haddock possession limit is 
reduced to 0 lb (0 kg) for a vessel issued a Federal Atlantic herring 
permit and fishing with midwater trawl gear or for a vessel issued an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit fishing on a declared herring trip, regardless of 
area fished or gear used, in the applicable AM area, unless the vessel 
also possesses a NE multispecies permit and is operating on a declared 
(consistent with Sec.  648.10(g)) NE multispecies trip. In making this 
determination, the Regional Administrator shall use haddock catches 
observed by NMFS-certified observers or monitors by herring vessel 
trips using midwater trawl gear in Management Areas 1A, 1B, and/or 3, 
as defined in Sec.  648.200(f)(1) and (3), expanded to an estimate of 
total haddock catch for all such trips in a given haddock stock area.
* * * * *


Sec. Sec.  648.10, 648.14, 648.51, 648.59, 648.80, and 648.86   
[Amended]

0
8. In the table below, for each section indicated in the left column, 
remove the text indicated in the middle column from wherever it appears 
in the section, and add the text indicated in the right column:

----------------------------------------------------------------------------------------------------------------
                Section                           Remove                                Add
----------------------------------------------------------------------------------------------------------------
648.10(f)(4)..........................  NMFS-approved............  NMFS-certified.
648.14(i)(3)(ix)......................  NMFS-approved............  NMFS-certified.
648.14(i)(3)(ix)(C)...................  648.11(g)................  648.11(k).
648.14(k)(2)(iii).....................  648.11(k)................  648.11(l).
648.14(k)(2)(iv)......................  648.11(k)................  648.11(l).
648.51(c)(4)..........................  648.11(g)................  648.11(k).
648.51(e)(3)(iii).....................  648.11(g)................  648.11(k).
648.59(b)(2)..........................  648.11(g)................  648.11(k).
648.80(d)(3)..........................  NMFS-approved sea sampler/ NMFS-certified observer.
                                         observer.
648.80(e)(2)(ii)......................  NMFS-approved sea sampler/ NMFS-certified observer.
                                         observer.
648.86(a)(3)(ii)......................  NMFS-approved............  NMFS-certified.
648.202(b)(4)(iv).....................  648.11(m)(4)(iv) and (v).  648.11(m)(4)(iv) and (vi).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2018-24087 Filed 11-6-18; 8:45 am]
 BILLING CODE 3510-22-P