Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment, 4736-4758 [E8-1436]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Rules and Regulations]
[Pages 4736-4758]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1436]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070627217-7523-02]
RIN 0648-AV70


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Region Standardized Bycatch Reporting Methodology Omnibus Amendment

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

ACTION: Final rule.

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SUMMARY: NMFS is implementing approved management measures contained in 
the Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment 
(SBRM Amendment) to the Fishery Management Plans (FMPs) of the 
Northeast Region, developed by the Mid-Atlantic and New England Fishery 
Management Councils (Councils). The SBRM Amendment establishes an SBRM 
for all 13 Northeast Region FMPs, as required under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
The measures include: Bycatch reporting and monitoring mechanisms; 
analytical techniques and allocation of at-sea fisheries observers; an 
SBRM performance standard; a review and reporting process; framework 
adjustment and annual specifications provisions; a prioritization 
process; and provisions for industry-funded observers and observer set-
aside programs.

DATES: This final rule is effective February 27, 2008.

[[Page 4737]]


ADDRESSES: Copies of the SBRM Amendment, and of the Environmental 
Assessment (EA), with its associated Finding of No Significant Impact 
(FONSI), and the Regulatory Impact Review (RIR), are available from 
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management 
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 
19901-6790; and from Paul J. Howard, Executive Director, New England 
Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The 
EA/FONSI/RIR is also accessible via the Internet at https://
www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Pentony, Senior Fishery Policy 
Analyst, 978-281-9283.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements approved management measures contained 
in the Northeast Region Omnibus SBRM Amendment, which was approved by 
NMFS on behalf of the Secretary of Commerce (Secretary) on October 22, 
2007. A proposed rule for this action was published on August 21, 2007 
(72 FR 46588), with public comments accepted through September 20, 
2007. A subsequent publication extended this comment period through 
September 24, 2007 (72 FR 53751).
    Section 303(a)(11) of the Magnuson-Stevens Act requires that all 
FMPs ``establish a standardized reporting methodology to assess the 
amount and type of bycatch occurring in the fishery.'' In 2004, several 
conservation organizations challenged the approval of two major 
amendments to Northeast Region FMPs. In ruling on these suits, the U.S. 
District Court for the District of Columbia found that the FMPs did not 
clearly establish an SBRM as required under the relevant section of the 
Magnuson-Stevens Act and remanded the amendments back to the agency to 
fully develop and establish the required SBRM [See, Oceana, Inc., v. 
Evans, 2005, WL 555416 (D.D.C. Mar 9, 2005)(Oceana I); and Oceana, 
Inc., v. Evans, 384 F. Supp 2d 203 (D.D.C. 2005)(Oceana II)]. In 
particular, the Court found that the amendments (1) failed to fully 
evaluate reporting methodologies to assess bycatch, (2) did not mandate 
an SBRM, and (3) failed to respond to potentially important scientific 
evidence.
    In response, the Councils, working closely with NMFS, undertook 
development of a remedy that would address all Northeast Region FMPs. 
In January 2006, development began on the Northeast Region Omnibus SBRM 
Amendment. This amendment covers 13 FMPs, 39 managed species, and 14 
types of fishing gear. The purpose of the amendment is to: Explain the 
methods and processes by which bycatch is currently monitored and 
assessed for Northeast Region fisheries; determine whether these 
methods and processes need to be modified and/or supplemented; 
establish standards of precision for bycatch estimation for all 
Northeast Region fisheries; and, thereby, document the SBRM established 
for all fisheries managed through the FMPs of the Northeast Region. The 
amendment also responds to the ``potentially important scientific 
evidence'' cited by the Court in the two decisions referenced above.
    The Northeast Region SBRM Amendment establishes an SBRM comprised 
of seven elements: (1) The methods by which data and information on 
discards are collected and obtained; (2) the methods by which the data 
obtained through the mechanisms identified in element 1 are analyzed 
and utilized to determine the appropriate allocation of at-sea 
observers; (3) a performance measure by which the effectiveness of the 
Northeast Region SBRM can be measured, tracked, and utilized to 
effectively allocate the appropriate number of observer sea days; (4) a 
process to provide the Councils with periodic reports on discards 
occurring in Northeast Region fisheries and on the effectiveness of the 
SBRM; (5) a measure to enable the Councils to make changes to the SBRM 
through framework adjustments and/or annual specification packages 
rather than full FMP amendments; (6) a process to provide the Councils 
and the public with an opportunity to consider, and provide input into, 
the decisions regarding prioritization of at-sea observer coverage 
allocations; and (7) to implement consistent, cross-cutting observer 
service provider approval and certification procedures and to enable 
the Councils to implement either a requirement for industry-funded 
observers or an observer set-aside program through a framework 
adjustment rather than an FMP amendment.

Bycatch Reporting and Monitoring Mechanisms

    The amendment maintains the status quo methods by which data and 
information on discards occurring in Northeast Region fisheries are 
collected and obtained. The Northeast Region SBRM will employ sampling 
designs developed to minimize bias to the maximum extent practicable. 
The Northeast Fisheries Observer Program (NEFOP) continues to serve as 
the primary mechanism to obtain data on discards in all Northeast 
Region commercial fisheries managed under one or more of the subject 
FMPs. All subject FMPs will continue to require vessels permitted to 
participate in said fisheries to carry an at-sea observer upon request, 
and all data obtained by the NEFOP under this SBRM will be collected 
according to the techniques and protocols established and detailed in 
the Fisheries Observer Program Manual and the Biological Sampling 
Manual. Data collected by the NEFOP include, but are not limited to, 
the following items: Vessel name; date/time sailed; date/time landed; 
steam time; crew size; home port; port landed; dealer name; fishing 
vessel trip report (FVTR) serial number; gear type(s) used; number/
amount of gear; number of hauls; weather; location of each haul 
(beginning and ending latitude and longitude); species caught; 
disposition (kept/discarded); reason for discards; and weight of catch. 
These data are collected on all species of biological organisms caught 
by the fishing vessel and brought on board, including species managed 
under the subject FMPs, but also including species of non-managed fish, 
invertebrates, and marine plants. To obtain information on discards 
occurring in recreational fisheries subject to a Northeast Region FMP, 
the Northeast Region SBRM fully will incorporate, to the extent 
practicable and appropriate for the Region, all surveys and data 
collection mechanisms implemented by NMFS and affected states as a 
result of the agency-wide redesign of the Marine Recreational Fisheries 
Statistics Survey (MRFSS) Program.

Analytical Techniques and Allocation of At-sea Fisheries Observers

    The amendment substantially expands and refines the status quo 
methods by which the data obtained through the mechanisms included 
above are analyzed and utilized to determine the appropriate allocation 
of at-sea observers to fully incorporate all managed species and all 
relevant fishing gear types in the Northeast Region. At-sea fisheries 
observers will, to the maximum extent possible and subject to available 
resources, be allocated and assigned to fishing vessels according to 
the procedures established through the amendment. All appropriate 
filters identified in the amendment will be applied to the results of 
the analysis to determine the observer coverage levels needed to 
achieve the objectives of the SBRM.

[[Page 4738]]

SBRM Performance Standard

    The amendment is intended to ensure that the data collected under 
the Northeast Region SBRM are sufficient to produce a coefficient of 
variation (CV) of the discard estimate of no more than 30 percent, in 
order to ensure that the effectiveness of the Northeast Region SBRM can 
be measured, tracked, and utilized to effectively allocate the 
appropriate number of observer sea days. Each year, the Regional 
Administrator and the Science and Research Director will, subject to 
any external operational constraints, allocate at-sea observer coverage 
to the applicable fisheries of the Northeast Region sufficient to 
achieve a level of precision (measured as the CV) no greater than 30 
percent for each applicable species and/or species group, subject to 
the use of the filters noted above.

SBRM Review and Reporting Process

    The amendment requires an annual report on discards occurring in 
Northeast Region fisheries to be prepared by NMFS and provided to the 
Councils, and a report every 3 years that evaluates the effectiveness 
of the Northeast Region SBRM. Every 3 years, the Regional Administrator 
and the Science and Research Director will appoint appropriate staff to 
work with staff appointed by the Executive Directors of the Councils to 
obtain and review available data on discards and to prepare a report 
assessing the effectiveness of the Northeast Region SBRM. This report 
will include, at a minimum: (1) A review of the recent levels of 
observer coverage in each applicable fishery; (2) a review of recent 
observed encounters with each species in each fishery, and a summary of 
observed discards by weight; a review of the CV of the discard 
information collected for each fishery; (4) an estimate of the total 
discards associated with each fishery; (5) an evaluation of the 
effectiveness of the SBRM at meeting the performance standard for each 
fishery; (6) a description of the methods used to calculate the 
reported CVs and to determine observer coverage levels, if those 
methods are different from those described and evaluated in the SBRM 
Amendment; (7) an updated assessment of potential sources of bias in 
the sampling program and analyses of accuracy; and (8) an evaluation of 
the implications for management of the discard information collected 
under the SBRM, for any cases in which the evaluation performed for 
item 5 indicates that the performance standard is not met. Once each 
year, the Science and Research Director will present to the Councils a 
report on catch and discards occurring in Northeast Region fisheries, 
as reported to the NEFOP by at-sea fisheries observers. This annual 
discard report will include: (1) The number of observer sea days 
scheduled for each fishery, by area and gear type, in each quarter; (2) 
the percent of total trips observed, by gear type, in each quarter; (3) 
the distribution of sea sampling trips by gear type and statistical 
area in each fishery; (4) the observed catch and discards of each 
species, by gear type and fishery, in each quarter; and (5) the 
observed catch and discards of each species, by gear type and fishery, 
in each statistical area.

Framework Adjustment and/or Annual Specification Provisions

    The amendment enables the Councils to make changes to certain 
elements of the SBRM through framework adjustments and/or annual 
specification packages rather than full FMP amendments. All subject 
FMPs provide for an efficient process to modify aspects of the 
Northeast Region SBRM, as relates to each specific FMP, should the need 
arise and the appropriate Council determine that a change to the SBRM 
is warranted and needed to address a contemporary management or 
scientific issue. Depending on the provisions of each FMP, changes to 
the SBRM may be effected either through a framework adjustment to the 
FMP or through annual or periodic specifications. Such changes to the 
SBRM may include modifications to the CV-based performance standard, 
the means by which discard data are collected/obtained in the fishery, 
reporting on discards or the SBRM, or the stratification (modes) used 
as the basis for SBRM-related analyses. Such changes may also include 
the establishment of a requirement for industry-funded observers and/or 
observer set-aside provisions.

Prioritization Process

    The amendment establishes a process to provide the Councils and the 
public with an opportunity to consider, and provide input into, the 
decisions regarding prioritization of at-sea observer coverage 
allocations, if the expected resources necessary may not be available. 
In any year in which external operational constraints would prevent 
NMFS from fully implementing the required at-sea observer coverage 
levels, the Regional Administrator and Science and Research Director 
will consult with the Councils to determine the most appropriate 
prioritization for how the available resources should be allocated. In 
order to facilitate this consultation, in these years, the Regional 
Administrator and the Science and Research Director will provide the 
Councils, at the earliest practicable opportunity: (1) The at-sea 
observer coverage levels required to attain the SBRM performance 
standard in each applicable fishery; (2) the coverage levels that would 
be available if the resource shortfall were allocated proportionately 
across all applicable fisheries; (3) the coverage levels that 
incorporate the recommended prioritization; and (4) the rationale for 
the recommended prioritization. The recommended prioritization should 
be based on: Meeting the data needs of upcoming stock assessments; 
legal mandates of the agency under other applicable laws, such as the 
Marine Mammal Protection Act (MMPA) and the Endangered Species Act 
(ESA); meeting the data needs of upcoming fishery management actions, 
taking into account the status of each fishery resource; improving the 
quality of discard data across all fishing modes; and/or any other 
criteria identified by NMFS and/or the Councils. The Councils may 
choose to accept the proposed observer coverage allocation or to 
recommend revisions or additional considerations for the prioritized 
observer allocations ultimately adopted and implemented by the Regional 
Administrator and the Science and Research Director.

Industry-Funded Observers and Observer Set-Aside Program Provisions

    The amendment implements consistent, cross-cutting observer service 
provider approval and certification procedures and enables the Councils 
to implement either a requirement for industry-funded observers and/or 
an observer set-aside program through a framework adjustment, rather 
than an FMP amendment.

Comments and Responses

    A total of 11 individual comment letters were received on the 
proposed rule and the amendment.
    Comment 1: A letter by representatives of a professional 
association for at-sea fisheries observers raised concerns regarding 
the provision of the SBRM Amendment that establishes observer 
certification and approval procedures to allow a multiple service 
delivery model under an industry-funded observer program. The 
commenters specifically focused on concerns related to the contractual 
relationship that would be established between the observer service 
provider

[[Page 4739]]

and the fishing vessel, rather than between the observer service 
provider and NMFS. The commenters refer to experience with a similar 
model utilized in Alaska under the North Pacific Groundfish Observer 
Program. The commenters cautioned that, in their opinion, such a 
contractual relationship may reduce the reliability of the data 
collected by the at-sea observers due to the potential for bias and 
conflict of interest. The commenters also cited concerns over quality 
control of the data due to the lack of direct oversight by the agency. 
To remedy the potential problems they identified, the commenters 
suggested that NMFS evaluate the performance of approved observer 
service providers on an annual basis, increase Federal funding for 
observers contracted by and paid for by NMFS, and/or utilize an 
independent non-profit organization (either an existing organization 
such as the Atlantic States Marine Fisheries Commission or an 
organization created specifically for this purpose) to provide an 
``arms-length'' relationship between the fishing industry, NMFS, and 
observer service providers.
    Response: NMFS acknowledges that a perceived conflict of interest 
could be a potential issue for some types of industry-funded observer 
programs. Rigorous data quality assurance and control standards, 
observer training and certification programs, and frequent reviews and 
oversight of the observer data collection programs are all means to 
address these concerns. NMFS acknowledges that some of the issues 
raised by the commenter regarding the North Pacific Groundfish Observer 
Program have been previously identified as potential concerns with that 
model, but notes that there are significant differences between the 
North Pacific program and the single industry-funded program that is 
currently in place in the Northeast Region. These differences include 
the observer set-aside that is an important component of the Northeast 
sea scallop observer program and serves to mitigate the conflict of 
interest concerns by providing a mechanism to offset the added cost to 
sea scallop fishing vessels of carrying an observer. Also, to minimize 
the likelihood that an observer would develop ties to a vessel owner/
operator and/or feel pressure by a vessel owner/operator to misreport, 
the regulations prohibit observer service providers from consecutively 
deploying the same observer on the same vessel and from deploying an 
observer on the same vessel more than twice per month.
    While NMFS shares some of the concerns identified by the commenters 
relative to the need to ensure that there is no real or perceived 
conflict of interest between the at-sea observers and the fishing 
vessels, and to ensure reliable, high quality data are collected and 
reported, none of these concerns are immediately applicable to this 
rulemaking. The regulatory changes implemented in this final rule 
merely establish the procedures that potential observer service 
providers must follow to be considered for approval, and the standards 
that they must meet on a continuing basis to maintain their 
certification to serve in the Northeast Region. However, excepting the 
sea scallop observer program that was formally implemented under a 
separate rulemaking (72 FR 32549, June 13, 2007), no other fisheries in 
the Northeast Region are operating under an industry-funded observer 
requirement that would utilize these regulations. This action makes no 
changes to the regulations or procedures established under Amendment 13 
to the Sea Scallop FMP, other than to generalize the observer 
certification procedures to apply more broadly than for the sea scallop 
fishery alone. The intent of this action was to create a more efficient 
process for the Councils to develop future industry-funded programs, 
should the need arise in any fishery. Actual implementation of an 
industry-funded observer program that would enable fishing vessels to 
select from a list of approved observer service providers would require 
the appropriate Council to initiate, develop, and have approved such a 
program for each particular fishery.
    The development of future Council fishery management actions to 
implement any additional industry-funded observer programs provides the 
appropriate opportunity to ensure that the programs fully address the 
data quality concerns and limitations noted by the commenters. NMFS is 
committed to ensuring that data collected and provided by at-sea 
fisheries observers are of the highest-possible quality and meet all 
applicable standards for reliability, precision, and accuracy. Any 
proposal by a Council to implement a future industry-funded observer 
program, such as is currently in place for the sea scallop fishery, 
would be reviewed to ensure it fully explains and justifies how the 
data to be obtained through the program meet all appropriate quality 
standards.
    Comment 2: One member of the public endorsed the comments of the 
observers' professional association, voicing his concern over industry-
funded observer programs as exist in Alaska under the North Pacific 
Groundfish Observer Program. The commenter added, however, that his 
concerns do not refer to the sea scallop observer program that is 
linked to an observer set-aside program to offset the costs to the 
vessels of carrying an observer. The commenter is most concerned with 
the perceptions of conflict of interest that can arise under situations 
where the observer service provider is contractually linked, and 
dependent on, the fishing vessels rather than NMFS.
    Response: The response above to comment 1 addresses the majority of 
the points raised by the commenter. As noted by the commenter, observer 
set-aside programs, such as the Northeast sea scallop program, mitigate 
many of these concerns by providing a mechanism to offset the added 
cost to the vessel of carrying an observer. While there is no 
requirement to do so, NMFS fully anticipates that any program developed 
by a Council to implement an industry-funded observer program would be 
directly associated with an observer set-aside program that offsets the 
additional costs to the vessels. No such program is currently proposed 
or under development by either Council, but the SBRM Amendment provides 
a mechanism for the Councils to develop and propose a set-aside program 
that uses quota, days-at-sea, increased trip limits, or other means to 
compensate fishing vessels that carry observers.
    Comment 3: The comments submitted by a public interest 
environmental organization were very similar to those of the observers' 
professional association. The commenters oppose changing the NEFOP to a 
model based on the North Pacific Groundfish Observer Program, in which 
the industry finances the observer program through independent 
contracts with observer service providers. The commenters raised 
concerns regarding the appearance of a conflict of interest between the 
fishing vessels and the observer service providers, a threat of bias in 
the data collection, creating an economic incentive to avoid 
observation, less transparency of observer data, and a lack of control 
on harassment of an interference with observers. The comment letter 
also expressed concern that the SBRM would discourage monitoring for 
marine mammals and other non-bycatch related monitoring.
    Response: Although the commenters in this case appear to have 
misunderstood the intent of the SBRM Amendment, NMFS takes their 
concerns seriously. The response above to comment 1 addresses the 
majority of the concerns raised by the commenters, but NMFS points out 
that the commenters

[[Page 4740]]

claim that the SBRM Amendment effects a ``conversion'' of the NEFOP 
from one controlled by NMFS to an industry-funded program. This is not 
the case. The SBRM Amendment provides a mechanism for the Councils to 
develop and propose industry-funded observer programs that would serve 
to supplement the existing NMFS-funded observer program, but this 
action neither implements nor requires such a program. Currently, the 
Councils are free to develop and propose such a system (as was done in 
Amendment 13 to the Sea Scallop FMP); the SBRM Amendment allows the 
Councils to use the framework adjustment process to propose a similar 
program instead of requiring a full FMP amendment. NMFS fully 
anticipates that any such program would include an observer set-aside 
mechanism, such as exists for the sea scallop fishery. As noted above 
and by other commenters, such a mechanism mitigates many of the 
concerns raised by the commenters.
    NMFS disagrees with the commenter that such a system, should one be 
proposed by a Council and implemented by NMFS, would result in industry 
``control'' of the observer program. The regulations at 50 CFR 
648.11(h) and (i) provide extensive and detailed procedures that must 
be followed by all observer service providers in order to obtain and 
maintain NMFS certification as valid service providers. These 
regulations specifically address the issues of potential conflicts of 
interest (Sec.  648.11(h)(6)), harassment of or interference with 
observers (Sec.  648.11(h)(5)(vii)(F)), and data transparency (Sec.  
648.11(h)(5)(vii)(A)). Regarding the concerns raised about the 
availability of the ``raw'' observer data, the regulations at Sec.  
648.11(h)(5)(vii)(A) require that, in addition to providing summary 
data within 12 hours of landing, that the observer service providers 
``provide the raw (unedited) data collected by the observer to NMFS 
within 72 hours of the trip landing.'' Regarding the commenters' 
opinion that the plan creates an economic incentive to evade 
observation, this claim does not take into account that observer set-
aside programs in many ways may actually create an incentive to be 
observed, as a set-aside program would grant a vessel extra quota, 
trips, DAS, or increased possession limits in exchange for carrying an 
observer.
    The commenters are also incorrect that the plan ``discourages'' 
marine mammal monitoring. NMFS acknowledges in the SBRM Amendment the 
importance of its mandate under other applicable laws, such as the MMPA 
and the Migratory Bird Act, but the focus of the SBRM is on those 
living marine resources defined as fish and bycatch under the Magnuson-
Stevens Act. Only the Magnuson-Stevens Act requires an SBRM to be 
established, and the Magnuson-Stevens Act specifically excludes certain 
types of organisms, specifically marine mammals and birds, from the 
definitions.
    The commenters are mistaken to conclude that the ``SBRM is based on 
a flawed model.'' The actual SBRM established as a result of this 
action is wholly severable from the provision that authorizes the 
Councils to develop and propose an industry-funded observer program 
through a framework adjustment rather than an amendment to an FMP. The 
SBRM does not implement, require, or rely upon any industry-funded 
observer programs that may be developed and proposed by a Council in 
the future.
    Comment 4: An organization representing a coalition of fishing 
interests involved in the Atlantic herring fishery submitted comments 
critical of the field sampling protocols and procedures used by at-sea 
observers to monitor bycatch occurring in fisheries that pump their 
catch directly from the codend into the vessel hold. The commenters 
asserted that the current observer protocols for the herring fishery 
contain loopholes that were not addressed in the SBRM Amendment, due to 
the potential for unobserved catch to be released from the net without 
being brought on board the vessel for the observer to monitor. The 
commenters expressed concern regarding the lack of mandated observer 
coverage on at-sea processing vessels, which transfer catch from the 
codend of catcher vessels to the hold of the processor vessel and about 
how pair trawls are treated if an observer is aboard only one of the 
paired vessels. The commenters also expressed concern that the 
filtering procedures described in the SBRM Amendment would result in 
exclusion of certain fishing modes (such as mid-water trawls) from 
observer coverage due to low levels of coverage in the past (``the SBRM 
ensures that [the mid-water trawl] mode will be unobserved in 
perpetuity'').
    Response: All fishing vessels permitted by NMFS to operate in the 
Northeast Region under one or more of the FMPs subject to the SBRM 
Amendment are currently obligated to carry a NMFS-certified observer on 
any trip for which they are requested by the Regional Administrator to 
do so (at Sec.  648(a), (b), (c) , and (d)). This requirement does not 
change, and is, in fact, reinforced in section 1.7 of the amendment. 
This requirement, by definition, applies to herring at-sea processors. 
The commenters incorrectly claim that the SBRM excludes some fishing 
modes from observer coverage; in fact, according to the results of the 
importance filter adopted in the amendment, the coverage allocated to 
the New England mid-water trawl fishing mode, cited by the commenters 
as ``unobserved in perpetuity,'' would be 316 days, nearly twice the 
coverage level in 2004 and would represent 11.5 percent of trips taken 
in 2004. The commenters appear to misunderstand the function of the 
importance filters, which is to eliminate certain species (those for 
which the total discards in a fishing mode is a negligible proportion 
of either the total discards of that species across all fishing modes, 
or for which the total discards of that species is a negligible 
proportion of total fishing-related mortality of that species) from the 
calculation of the observer coverage allocation within a fishing mode 
(the allocation being no less than the highest coverage level of all 
species remaining after the importance filter is applied). Under no 
circumstances do the importance filters eliminate any fishing modes 
from the observer allocation process. This can be seen in Appendix C of 
the amendment in a table illustrating the results of applying the SBRM 
to the 2004 dataset. There is some level of observer coverage assigned 
to each of the 39 fishing modes addressed in the SBRM Amendment. In 
addition, the commenters asserted that the SBRM Amendment did not 
address the field sampling protocols to be used in collecting data by 
at-sea fisheries observers. This is incorrect. Section 1.7 of the SBRM 
Amendment stipulates that ``The NEFOP shall serve as the primary 
mechanism to obtain data on discards in all Northeast Region commercial 
fisheries managed under one or more of the subject FMPs,'' and that 
``all data obtained by the NEFOP under this SBRM shall be collected 
according to the techniques and protocols established and detailed in 
the Fisheries Observer Program Manual (NEFOP 2006a) and the Biological 
Sampling Manual (NEFOP 2006b).'' This section of the SBRM Amendment 
goes on to identify the minimum data fields to be collected by 
Northeast Region observers. The Fisheries Observer Program Manual and 
the Biological Sampling Manual provide general as well as specific 
instructions for at-sea observers operating on mid-water trawl, purse 
seine, and pair trawl vessels; these instructions and sampling 
priorities explicitly account, to the extent

[[Page 4741]]

practicable, for the contingencies identified by the commenters 
(including pair trawls with only one vessel observed, pumped fish, loss 
of fish in the net, etc.).
    Comment 5: A letter from an organization representing commercial 
fishermen from Cape Cod expressed concern with how the SBRM would 
perform in monitoring hard TACs (total allowable catch) and fishery 
sectors. The commenters acknowledged that at least some of the changes 
under the SBRM Amendment will improve the region's bycatch reporting, 
and characterized the importance filter process as ``crucial for 
prioritizing observer coverage.'' However, the commenters stressed 
three primary recommendations for improving the SBRM Amendment: (1) 
Ensuring that the SBRM provides a means to accurately and precisely 
quantify discards for all stocks across all stock areas; (2) 
identifying levels of monitoring coverage for sectors necessary for TAC 
management; and (3) providing a real-time, publicly-accessible, and 
transparent reporting methodology that allows for enforcement of 
accountability measures.
    Response: The commenters imply that the SBRM Amendment should have 
addressed the new requirement included in the Magnuson-Stevens 
Reauthorization Act of 2007 (MSRA) for all FMPs to include ``Annual 
Catch Limits'' (ACLs) and ``Accountability Measures'' (AMs) and 
indicate how the SBRM would perform in the face of these new 
requirements. However, the MSRA does not require ACLs and AMs be 
developed and implemented for any fishery until at least 2010 (for 
fisheries experiencing overfishing) or 2011 (for all other fisheries). 
Also, the new MSRA provision related to ACLs and AMs, by its very 
definition, applies to all catch, not just bycatch, and is a 
requirement much broader in scope than the requirement to establish an 
SBRM, which remains a separate requirement under the Magnuson-Stevens 
Act and was not modified by the MSRA. Section 1.2 of the SBRM Amendment 
acknowledges the changes promulgated through the MSRA, but explains 
that no changes to the amendment are necessary as a result. This action 
remains necessary primarily to correct deficiencies identified by the 
Court in Amendment 13 to the Northeast Multispecies FMP and Amendment 
10 to the Sea Scallop FMP in order to bring the Northeast Region FMPs 
into compliance with the requirement to establish an SBRM as specified 
as section 303(a)(11) of the Magnuson-Stevens Act. As the Councils 
embark on fishery management actions to bring the FMPs into compliance 
with the new requirements of the MSRA, changes to the SBRM established 
herein may be necessary to accommodate the specific attributes of the 
ACLs and AMs that will be developed, but such changes would address 
specific management needs that go beyond the mandate of section 
303(a)(11) to establish an SBRM to assess the amount and type of 
bycatch, which is the focus of this action. Because it is impossible at 
this time to foresee all the particular attributes of the various ACL 
and AM programs that may be developed and adopted by the two Councils 
for all 13 FMPs, and how the SBRM may need to change to accommodate 
those programs, it would be premature to attempt to craft an SBRM that 
could accommodate all possible ACL and AM outcomes, without resulting 
in an SBRM so vague and generalized as to be ineffectual at meeting its 
current objectives.
    Regarding the specific points raised by the commenter, NMFS asserts 
that the Northeast Region SBRM is wholly sufficient to quantify 
discards for all stocks across all stock areas. Data collected by at-
sea fisheries observers provide sufficient information to determine the 
specific stocks of fish discarded, and the stock areas in which the 
discard event occurred. These data can be used to apportion the 
collected discard estimates across all stocks and stock areas. This is 
illustrated in Appendix F and Appendix G of the amendment, which 
provide example data queries and analyses based on the data collected 
by at-sea observers and a sample format for the information requested 
by the Councils to be provided in annual discard reports. In both 
cases, discard data are summarized by stock and statistical area, which 
is a finer scale even than stock area (i.e., stock areas are composed 
of multiple statistical areas).
    The commenters also suggest that the SBRM must identify observer 
coverage levels for fishery sectors authorized under an FMP to provide 
for a specific level of certainty in future TAC management programs. 
The commenters appear to assume that a one-size-fits-all approach would 
be appropriate for all potential future instances of sector management. 
Sectors are unique and temporary fishery management provisions that 
authorize a collective of similar fishing vessels (e.g., hook vessels 
operating out of Cape Cod) to be granted a portion of a TAC for 1 year 
in exchange for abiding by the specific provisions and limitations 
identified in the sector management plan. Currently, there are two 
approved sectors operating in New England waters; both are authorized 
under the sector management provisions of Amendment 13 to the Northeast 
Multispecies FMP. As many as 19 additional multispecies sectors are 
under development, and the New England Council is considering adopting 
similar sector provisions in upcoming amendments to the other New 
England FMPs. The sector provisions of the Northeast Multispecies FMP 
require that the vessels interested in forming a sector prepare and 
submit annually a sector proposal that includes, among other things, 
``detailed plans for the monitoring and reporting of landings and 
discards'' (at Sec.  648.87(b)(2)(vi)). Under the sector provisions of 
the FMP, it is the responsibility of the sector proponents to propose 
how discards will be monitored and reported, while the Council and NMFS 
retain the authority to determine if the proposed plans are sufficient. 
Sector proposals developed by members of the fishing industry are 
submitted to and reviewed by the New England Council. Those approved by 
the Council are incorporated into framework adjustments to the 
Northeast Multispecies FMP and submitted to NMFS for review. At that 
time, NMFS considers the specific provisions of the proposed sector 
plan to ensure it would meet all requirements of the FMP and be 
consistent with the provisions of the Magnuson-Stevens Act and other 
applicable law. Given the variety of sector proposals currently under 
development, and the expectation of additional sector provisions 
included in the other New England FMPs, it would not be practicable to 
stipulate in this amendment the specific levels of observer coverage 
that would be necessary for each sector, as this would depend on the 
number of vessels participating, the area(s) to be fished, the target 
and likely incidental species, fishing gear(s) used, and the other 
reporting mechanisms required under each sector plan. This action is 
focused on the requirement at section 303(a)(11) of the Magnuson-
Stevens Act to develop a methodology to assess the amount and type of 
bycatch and provides a framework for modifications to the overarching 
methodology to address specific future management needs. The Councils 
recognized the need for the SBRM Amendment to be flexible enough to 
adapt to such changes, noting in section 6.9.5 of the amendment that 
because new sector programs may be implemented through a framework 
adjustment, the same framework action could be used to ``modify the 
SBRM to

[[Page 4742]]

ensure sufficient data are collected'' on discards.
    The commenters asserted that the SBRM must establish a ``real-time, 
publicly-accessible, and transparent reporting methodology.'' NMFS 
disagrees with the commenters on this point. The Magnuson-Stevens Act 
requires simply that an SBRM be established; it imposes no minimum 
legal requirements on whether this system provide data in real time, or 
the degree to which the data are publicly accessible. A ``real-time'' 
reporting system, as requested by the commenters, would require that 
data be presented in a publicly accessible medium as the discards are 
observed and documented by the at-sea fisheries observer. This would 
provide no time for the fishing trip to end, for the observer to submit 
the data to NMFS, and for NMFS to review, edit, and audit the data 
prior to publishing the data. This would severely reduce the quality of 
the data and, in so doing, diminish the usefulness and reliability of 
the discard data. Data reduction and summaries are necessary in order 
to prevent the release of sensitive and proprietary data that is 
protected under the Magnuson-Stevens Act and other Federal statutes. 
NMFS concludes that it is more appropriate to engage a full data 
quality control and assurance program, as summarized in Appendix D of 
the SBRM Amendment, in order to ensure the resulting data are of the 
highest possible quality before they are released to the public or used 
in management.
    Comment 6: A conservation organization submitted extensive comments 
on the SBRM Amendment and its proposed rule, urging that NMFS not 
approve the amendment. The comments addressed several elements of the 
SBRM Amendment, and include references to the results of a technical 
review of the amendment conducted under contract to another 
conservation organization. The responses to the comments identified in 
the technical review are addressed separately under comment 10. All 
other points raised in the comment letter are addressed in this 
response.
    The commenters, while acknowledging that the SBRM Amendment 
``dramatically'' improves upon prior documents by specifying a 
monitoring and reporting system that could be implemented, expressed 
concern that the amendment fails to actually establish this system 
because it vests NMFS with discretion as to the allocation of observer 
coverage if there are external constraints (such as an insufficient 
budget) that prevent full implementation. The commenters suggested that 
the amendment could have adopted a formal decision procedure that would 
stipulate how observers are to be allocated if there is a budget 
shortfall, such as requiring that the budget allocations be cut pro 
rata across all fishing modes, or to rank fishing modes according to a 
standard of priority and fully allocating observer coverage across 
priority modes until funding is exhausted.
    The commenters claim that the SBRM Amendment fails to mandate that 
data be reported in a rational manner useful for fisheries management, 
and that the amendment fails to establish a reporting requirement that 
provides information on the amount, type, and disposition of bycatch. 
The commenters also claim that the amendment fails to recognize the 
fishery management needs of the Councils and the needs of the public.
    The commenters claim that the amendment fails to establish an SBRM 
because it provides for framework adjustment provisions to enable the 
Councils to develop and propose changes to the SBRM. The commenters 
also claim that the SBRM Amendment fails to consider the bycatch of 
species that are not targeted under Northeast Region FMPs, including 
failing to consider alternatives for including ``non-managed'' species 
in the SBRM.
    The commenters claim that NMFS ``locked'' the public and Fishery 
Management Councils out of the decision-making process to develop the 
SBRM Amendment. The commenters also claim that the SBRM Amendment 
violates NEPA because an environmental impact statement (EIS) was not 
prepared. Regarding the environmental assessment's (EA) compliance with 
NEPA, the commenters raised the following concerns: The EA fails to 
adequately discuss the purpose, need, and scope of the amendment; the 
EA fails to consider a reasonable range of alternatives, including 
performance standards other than 30 percent, different reporting 
formats or frequencies, or different ways to assess accuracy; the EA 
fails to consider cumulative environmental impacts; and the EA fails to 
adequately address protected resources.
    Response: NMFS disagrees with the commenters' assertion that the 
amendment fails to establish an SBRM because it vests NMFS with some 
degree of discretion in cases where external operational constraints 
prevent full implementation of the resulting at-sea observer 
allocations. The SBRM Amendment establishes an extensive and detailed 
methodology to utilize available observer data on discards occurring 
across all relevant Northeast Region fisheries, assess the degree to 
which those data meet the established performance standard, allocate 
observer coverage levels across all relevant fisheries to achieve said 
performance standard, and provide reports to the Fishery Management 
Councils on the discards that are occurring and on the effectiveness of 
the SBRM itself at meeting its objectives. The prioritization process 
is one component of the overall program that explicitly recognizes that 
external operational constraints (such as Congressional budget 
allocations) may occasionally prevent the full implementation of the 
SBRM. The process establishes a rigorous review and consultation 
process to engage the Councils and the public in determining the most 
appropriate approach to prioritize observer coverage on these occasions 
that reflects the needs and priorities of the agency and Councils at 
the time.
    The commenters suggested that the amendment could have implemented 
a requirement to apportion any budget allocations pro rata across all 
fishing modes, or could have ranked fishing modes according to a 
specific standard of priority and require that observers be fully 
allocated to the highest priority modes in descending order until the 
available budget is exhausted. NMFS notes that several options such as 
these are described in section 6.6 of the amendment, but that the 
Councils recognized the importance of retaining sufficient flexibility 
in the SBRM to adapt to changing conditions and priorities in the 
fisheries. The approach suggested by the commenters would leave the 
Councils and NMFS with a rigid system that would require an FMP 
amendment to modify the priority allocation of resources. NMFS also 
notes that retaining some level of discretion in allocating resources 
is necessary for the agency to adequately meet its obligations under 
other laws in addition to the Magnuson-Stevens Act, such as the ESA and 
MMPA. Lastly, the commenters appeared to have misconstrued the 
instructions from the Court. Instead of requiring that the SBRM 
Amendment stipulate the precise areas where observers must be 
concentrated, the Court, in Oceana II, clarified that it ``only 
requires that the FMP establish some method for determining observer 
concentration instead of leaving all decisions to the Regional 
Administrator's discretion'' [See, Oceana II at p. 234 (footnote 41)]. 
The SBRM Amendment establishes a very specific method for determining 
observer allocations across all relevant fisheries, and does not leave 
``all

[[Page 4743]]

decisions'' to the Regional Administrator. Rather, only in years in 
which external operational constraints prevent full implementation 
would NMFS have any discretion to adapt the results of the SBRM, and 
only then following a review and consultation with the Councils in a 
public forum. NMFS asserts that this approach is consistent with both 
the intent of the SBRM provisions of the Magnuson-Stevens Act and the 
guidance provided by the Court.
    NMFS rejects the commenters' claim that the SBRM Amendment fails to 
mandate that data be reported in a rational manner useful for fisheries 
management, and that the amendment fails to establish a reporting 
requirement that provides information on the amount, type, and 
disposition of bycatch. Section 6.4 of the SBRM Amendment describes the 
alternatives considered regarding potential reporting procedures, and 
section 1.7 of the amendment establishes the requirements for two types 
of reports to be prepared at different time intervals. The amendment 
requires an annual report be provided to the Councils to provide the 
data they requested on the current status of observer coverage and 
discard information, along with an additional report provided every 3 
years that assesses the SBRM in a more comprehensive manner. The 
amendment, in sections 1.7 and 6.4, identifies the specific data 
elements to be provided in the reports, including the amount, species, 
location, and gear types involved. The information to be reported, the 
frequency, and the format for the reports was proposed and adopted by 
both Councils as their preferred alternative approach to obtaining SBRM 
reports on a routine basis. NMFS asserts that the Councils are in the 
best position to determine their needs as to SBRM reports, and, as 
such, the SBRM Amendment clearly reflects the needs of the Councils for 
this information.
    NMFS disagrees with the commenters that the SBRM Amendment fails to 
actually establish an SBRM simply because it provides a procedure for 
the Councils to make changes to certain provisions of the SBRM through 
the use of framework adjustments rather than full FMP amendments. The 
intent of this provision of the amendment is to facilitate an efficient 
and timely process for the Councils to develop and submit proposed 
changes to the SBRM, limited within certain constraints. Nothing in 
this provision diminishes or abrogates the agency's obligation to 
carefully review any framework adjustment proposed by a Council to 
ensure that the proposed changes are consistent with the Magnuson-
Stevens Act, other applicable law, and do not undermine or contravene 
the parent FMP. The amendment clearly stipulates that intent, as at 
section 6.5.2, which provides that ``the intent of this [framework] 
provision is to provide an efficient means for the Council to change 
the performance standard in certain circumstances when a higher level 
of precision (i.e., reducing the CV to less than 30 percent) is desired 
for a particular fishery or management program [emphasis added].'' 
Providing this mechanism to modify certain elements of the SBRM is 
considered important because several provisions of the parent FMPs 
already establish framework adjustment protocols for items such as 
creating new special access programs (SAPs) or new fishery sectors. As 
these changes are developed through a framework adjustment process, 
changes to the SBRM may be necessary in order to ensure sufficient 
discard reporting in the new SAP or sector. Without the ability to 
effect the necessary changes to the SBRM through the framework 
adjustment implementing the SAP or sector, the Council would have to 
defer implementation of each such framework until an accompanying 
amendment could be developed to implement the changes to the SBRM. This 
delay would directly contravene the intent of the parent FMPs.
    NMFS also disagrees with the commenters that the amendment failed 
to consider the bycatch of species that are not targeted under the 
Northeast Region FMPs. This issue is addressed in several sections of 
the amendment. First, section 1.7 of the amendment clearly stipulates 
that the data collected by at-sea fisheries observers ``shall be 
collected on all species of biological organisms caught by the fishing 
vessel and brought on board, including species managed under the 
subject FMPs but also including species on non-managed fish, 
invertebrates, and marine plants.'' This section of the amendment 
continues to stipulate, in a footnote, that a complete list of the 
species for which the listed data elements are to be collected can be 
found in Appendix A and Appendix R of the Fisheries Observer Program 
Manual. These lists include more than 500 distinct species and species 
codes that must be accounted for by observers in their catch and 
discard reports. This provision of the SBRM requires that information 
regarding the discards of all species be reported by at-sea observers 
and reported to NMFS. The same information collected on species managed 
under a subject Northeast Region FMP would also be available, at the 
same level of detail, on all other species. The SBRM, however, is 
specifically crafted around the species managed under a subject FMP, 
and it is these species, with the addition of threatened and endangered 
sea turtles, that drive the allocation of observers across the subject 
fishing modes. Contrary to the claim of the commenters, the Councils 
explicitly considered expanding this aspect of the SBRM calculations to 
include all non-managed species. This is described in section 6.8.1 of 
the amendment document and includes the Councils' rationale for not so 
expanding the SBRM.
    NMFS rejects the claim by the commenters that the agency ``locked'' 
the public and Councils out of the decision-making process to develop 
the SBRM Amendment. The process to development the amendment included 
numerous and varied opportunities for the public and the Councils to 
fully engage and provide valued input, fulfilling the letter and spirit 
of NEPA. The commenters correctly pointed out that the primary analyses 
and technical materials were developed by a Fishery Management Action 
Team (FMAT) that was chaired by a NMFS staff member, but claim that 
this represents a ``flawed'' approach. The choice of a NMFS staff 
member to serve as chair of this technical group was suggested by the 
Councils as a way to help with staffing resource concerns shared by the 
Councils. However, in all respects other than the position of the 
group's chair, the membership of the FMAT reflected the standard 
operating procedures for Plan Development Teams (PDTs), as used by the 
New England Council, as well as FMATs as used by the Mid-Atlantic 
Council. The SBRM FMAT included staff from both Councils, the Northeast 
Fisheries Science Center, NOAA General Counsel, and the Northeast 
Regional Office, all with the requisite expertise and background in the 
subject matter.
    All activities, analyses, and recommendations of the FMAT were 
reported to a Joint Oversight Committee composed of voting member of 
both Councils, and all such meetings of the SBRM Committee were held in 
public fora with advance notice to the public. Throughout the 
development of the amendment, the SBRM Committee held six public 
meetings ranging in location from Virginia Beach, VA, to Peabody, MA. 
All decisions of the Councils with regards to establishing the range of 
alternatives to be considered in the

[[Page 4744]]

amendment, selecting the preferred alternatives, approval of the draft 
amendment for release to the public, reviewing the results of the 
analyses and information provided by the FMAT, assessing the comments 
submitted by the public on the draft amendment and the changes proposed 
to address those comments were first vetted through the SBRM Committee 
in public meetings. In addition to the six meetings of the SBRM 
Committee, the Councils met publicly a total of 13 times to receive 
reports on the progress of the SBRM Amendment, to review the decisions 
and recommendations of the SBRM Committee, and to formally approve and 
adopt the amendment for release to the public and, later, to submit for 
Secretarial review. There was also a public meeting at which members of 
both Councils' SSCs conducted a formal peer-review of the technical 
components of the SBRM Amendment, and two public hearings were held to 
provide ample opportunity for interested members of the public to 
provide comments on the draft amendment.
    Lastly, NMFS disagrees with the assertion by the commenters that 
the SBRM Amendment violates NEPA because an EIS was not prepared. 
Consistent with NEPA, Council for Environmental Quality (CEQ) 
regulations, and NOAA administrative policy, NMFS and the Councils 
collaborated to prepare an EA to evaluate the significance of the 
environmental impacts expected as a result of the actions considered in 
the SBRM Amendment. The results of this assessment are provided in 
section 8.9.2 of the amendment, which supports the finding of no 
significant impacts (FONSI) signed by the agency on October 16, 2007. 
The commenters provided no evidence, nor even any claims, that the 
conclusions in the FONSI are not supported by the facts presented in 
the EA for this finding. Contrary to the claim of the commenters, NMFS 
asserts that the EA considers a sufficient range of alternatives to 
satisfy the requirements of NEPA. As described throughout the amendment 
(the Executive Summary and chapters 6, 7, and 8), the alternatives 
considered by the Councils were structured around seven specific 
elements that together comprise the Northeast Region SBRM. Multiple 
alternatives were developed and considered for each element and, in 
some cases, various sub-options were also developed and considered. As 
noted in Appendix E of the amendment, in response to a similar comment 
received on the draft amendment, the available permutations of the 
various alternatives considered in this action exceeds 1,400 if the 
sub-options are not counted. Accounting for the sub-options, the number 
of possible outcomes exceeds 2,100 distinct sets of management 
alternatives. In addition to the sets of alternatives expressly 
analyzed in the EA, the Councils considered, but ultimately rejected 
from detailed analysis, an additional four distinct alternatives. These 
additional alternatives are described in section 6.8 of the amendment, 
and, contrary to the claim of the commenters, include alternatives that 
specifically addresses setting alternate CV levels and different 
intervals for the SBRM reports.
    NMFS disagrees with the commenters that the EA fails to adequately 
discuss the purpose, need, and scope of the amendment. All of these 
elements are specifically identified and are fully described in chapter 
1 of the amendment. The commenters assert that the EA fails to consider 
cumulative environmental impacts. NMFS rejects this claim, as section 
7.3 of the amendment explicitly provides a discussion of the expected 
cumulative effects associated with the action. NMFS asserts that this 
treatment of cumulative effects is consistent with CEQ regulations and 
current NOAA policy. Regarding protected resources, several elements of 
sections 7.1 and 7.2 of the amendment address the potential impacts of 
the actions on protected resources, and NMFS considers this treatment, 
along with sections 8.3 and 8.8 of the amendment, to be adequate under 
all applicable law. Endangered sea turtles are explicitly addressed in 
the SBRM (see chapters 5 and 6), and are afforded a priority superior 
to all other fish species by ``trumping'' the second and third level 
importance filters (i.e., if the results of the second and third level 
importance filters would result in an observer allocation to a fishing 
mode that is less than the number of sea days calculated to adequately 
observe sea turtles, then the higher sea turtle allocation is applied). 
As noted throughout the amendment document, the Magnuson-Stevens Act 
specifically excludes marine mammals and birds from the definitions of 
fish and bycatch and, therefore, the SBRM (because it exists solely as 
a Magnuson-Stevens Act construct) need not expressly account for marine 
mammals or birds. Therefore, NMFS considers the SBRM Amendment to 
adequately address protected resources.
    Comment 7: A comment letter written on behalf of four conservation 
organizations raised many of the same concerns as the conservation 
organization noted above. In particular, the commenters frequently 
referred to the results of the technical review described below. The 
responses to the comments identified in the technical review are 
addressed separately under comment 10. All other points raised in the 
comment letter are addressed in this response.
    The commenters claim that the SBRM Amendment fails to achieve the 
purpose of the action or meet the related requirements of the Magnuson-
Stevens Act and the prior Court orders because it fails to explain the 
methods and processes by which bycatch is currently monitored, fails to 
determine whether these methods and process should be modified and/or 
supplemented, and fails to document the SBRM established for all 
Northeast Region FMP fisheries. The commenters claim that the SBRM 
Amendment does not explain the methods by which data and information on 
discards are obtained by observers. The commenters reiterated the claim 
made in comment 4 that the SBRM Amendment ``conclude[s] that observer 
coverage is not warranted'' in the mid-water trawl fishery.
    The commenters claim that the SBRM Amendment fails to specify 
levels of observer coverage required for each FMP, citing concern that 
the ``mere performance targets'' leave the actual level of observer 
coverage entirely up to the agency. The commenters also claim that the 
SBRM fails to adequately cover ``non-managed'' bycatch species.
    The commenters claim that NMFS ``prevented'' the New England and 
Mid-Atlantic Councils and the public from meaningfully participating in 
the development of the SBRM Amendment. Similar to the previous 
commenter, the commenters claim that an EIS should have been prepared, 
rather than the EA, and that the document therefore does not comply 
with NEPA. In particular, the commenters claim that the lack of an EIS: 
Limited the opportunities for public participation and stymied the 
involvement of the Councils; failed to consider a range of 
alternatives; and failed to ensure that decision-makers and the public 
are well informed about the potential environmental impacts of the 
action. The commenters suggested that the amendment should have been 
presented in a more accessible format, claiming that the SBRM is a 
``nearly incoherent document.'' The commenters claim that the FMAT 
formed to prepare the technical materials for the Councils was a 
``failure'' and failed to engage the Councils. The commenters further 
claim that the SBRM Amendment was ``carefully steered around the 
avoidance

[[Page 4745]]

of the public participation requirements of NEPA,'' and that 
opportunities for public participation, including the two public 
hearings, were limited to Council meetings with short agenda items and 
``little or no'' opportunity for public comment. The commenters also 
criticized the amount of time available to review and comment on the 
amendment, claiming that much of the document was not available ``in 
any form'' until shortly before the Councils approved the document in 
June 2007. The commenters concluded by criticizing the 60-day comment 
period on the amendment, claiming that this amount of time was 
insufficient.
    The commenters suggested that NMFS engage independent and objective 
scientific expertise, along with the public, and prepare an EIS in 
support of a ``significantly revised'' SBRM Amendment. The commenters 
claim that the SBRM was never peer reviewed by independent reviewers at 
any stage of its development. The commenters recognized that the 
document was reviewed by members of the Councils' SSCs, but claim that 
these reviewers ``lacked the highly specialized expertise necessary to 
conduct a review of this nature,'' and that the reviewers cannot be 
considered as independent and objective because they serve as members 
of the Councils' SSCs.
    Response: NMFS disagrees that the amendment fails to explain the 
methods and processes by which bycatch is currently monitored or that 
the amendment fails to evaluate whether these methods should be 
modified and/or supplemented, noting that chapter 4 addresses these 
specific issues. Additional information about the current bycatch data 
collection programs is provided in chapter 5 of the amendment and in 
associated reference documents that are clearly identified throughout 
the amendment. As noted above in response to comments on this issue, it 
is incorrect to conclude that the SBRM Amendment in any way suggests 
that observer coverage ``is not warranted'' in any fishing mode, 
including the New England mid-water trawl mode, which the amendment 
indicates would be allocated 316 observer sea days based on the 2004 
observer data, a two-fold increase over the actual coverage in this 
fishing mode in 2004.
    NMFS disagrees with the commenters' implication that the SBRM 
Amendment was intended to specify levels of observer coverage required 
for each FMP. Nothing in the Magnuson-Stevens Act, or in either 
relevant Court order described above, requires that an SBRM include 
specific observer coverage levels to be identified for each FMP. 
Rather, the intent of the Magnuson-Stevens Act SBRM provision, 
supported by the Court, was to establish procedures to determine the 
appropriate levels of coverage [See, Oceana II at p. 233 (footnote 38), 
where the Court states that ``Oceana I did not require that an FMP 
mandate a specific level of observer coverage'']. The amendment clearly 
establishes the procedures to be used to make these determinations and 
requires that the agency utilize these procedures (``Each year, the 
Regional Administrator and the Science and Research Director shall 
allocate sufficient at-sea observer coverage to the applicable 
fisheries of the Northeast Region in order to achieve a level of 
precision . . . no greater than 30 percent for each applicable species 
and/or spe