Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Amendment 16, 69382-69466 [E9-29854]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 250 (Thursday, December 31, 2009)]
[Proposed Rules]
[Pages 69382-69466]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29854]



[[Page 69381]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Magnuson-Stevens Fishery Conservation and Management Act Provisions; 
Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Amendment 16; Proposed Rule

Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / 
Proposed Rules

[[Page 69382]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0808071078-81093-01]
RIN 0648-AW72


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Amendment 16

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Amendment 
16 to the NE Multispecies Fishery Management Plan (FMP). Amendment 16 
was developed by the New England Fishery Management Council (Council) 
as part of the biennial adjustment process in the FMP to update status 
determination criteria for all regulated NE multispecies or ocean pout 
stocks; to adopt rebuilding programs for NE multispecies stocks newly 
classified as being overfished and subject to overfishing; and to 
revise management measures, including significant revisions to the 
Sector management measures, necessary to end overfishing, rebuild 
overfished regulated NE multispecies and ocean pout stocks, and 
mitigate the adverse economic impacts of increased effort controls. 
Amendment 16 would also implement new requirements for establishing 
acceptable biological catch (ABC), annual catch limits (ACLs), and 
accountability measures (AMs) for each stock managed under the FMP, 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). Finally, this action would add Atlantic 
wolffish to the list of species managed by the FMP. This action is 
necessary to address the results of the most recent stock assessment 
that indicates that several additional NE multispecies regulated 
species are overfished and subject to overfishing, and that stocks 
currently classified as overfished require additional reductions in 
fishing mortality to rebuild by the end of their rebuilding periods.

DATES: Comments must be received by January 20, 2010. ADDRESSES: You 
may submit comments, identified by 0648-AW72, by any of the following 
methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: https://www.regulations.gov.
     Fax: (978) 281-9135.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on the Proposed Rule for NE 
Multispecies Amendment 16.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to https://regulations.gov without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of Amendment 16, its Regulatory Impact Review (RIR), and a 
draft of the Final Environmental Impact Statement (FEIS) are available 
from Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Mill 2, Newburyport, MA 01950. NMFS prepared 
an Initial Regulatory Flexibility Act (IRFA) analysis, which is 
summarized in the Classification section of this proposed rule. The 
EIS/RIR/IRFA is also accessible via the Internet at https://www.nefmc.org/nemulti/.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to David Rostker, Office of Management and Budget (OMB), by 
e-mail at David_Rotsker@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy 
Analyst, phone: 978-281-9141, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The FMP specifies management measures for 15 species of NE 
multispecies in Federal waters off the New England and Mid-Atlantic 
coasts, including both large-mesh and small-mesh species. Small-mesh 
species include silver hake (whiting), red hake, offshore hake, and 
ocean pout, while large-mesh species include Atlantic cod, haddock, 
yellowtail flounder, pollock, American plaice, witch flounder, white 
hake, windowpane flounder, Atlantic halibut, winter flounder, and 
redfish. Large-mesh species are further divided into 19 individual 
stocks, that, along with ocean pout are collectively referred to as 
groundfish. A major overhaul of the FMP occurred in 2004 with 
implementation of Amendment 13 and the establishment of rebuilding 
programs for all large-mesh stocks managed by the FMP, including 
specification of status determination criteria for each stock.
    Amendment 13, which became effective May 1, 2004 (April 27, 2004; 
69 FR 22906), established two different strategies for rebuilding (an 
adaptive strategy and a phased rebuilding strategy), and a rebuilding 
plan for each overfished stock was developed in accordance with one of 
the two strategies. Under the adaptive rebuilding strategy, the fishing 
mortality rate (F) was held at a level intended to produce maximum 
sustainable yield (FMSY) from 2004 through 2008, and then 
subsequently reduced to the level required to rebuild by the selected 
end-date of the relevant rebuilding period for that stock. In contrast, 
under the phased rebuilding strategy, F was allowed to remain above 
FMSY at the start of the rebuilding period in 2004, and then 
was to be reduced sequentially in 2006 and 2009. Eight stocks (Gulf of 
Maine (GOM) cod, Georges Bank (GB) haddock, GOM haddock, Southern New 
England (SNE)/Mid-Atlantic (MA) winter flounder, GB yellowtail 
flounder, redfish, windowpane flounder (southern stock), and ocean 
pout) are managed under the adaptive rebuilding strategy, while five 
stocks (GB cod, Cape Cod (CC)/GOM yellowtail flounder, SNE/MA 
yellowtail flounder, American plaice, and white hake) are managed under 
the phased rebuilding strategy.
    Amendment 13 also established a biennial adjustment process whereby 
the Council would review the FMP and make any changes to management 
measures necessary to achieve the goals and objectives of the FMP. This 
adjustment process provides for an update of the scientific information 
regarding the status of the stocks, and an evaluation of the 
effectiveness of the regulations. The biennial review scheduled to 
occur in 2008, with necessary changes to the FMP to be

[[Page 69383]]

implemented in 2009, included a peer-reviewed benchmark assessment and 
a review of the biological reference points (stock status determination 
criteria) for each stock. This planned assessment of the biological 
reference points (Groundfish Assessment Review Meeting, (GARM III)) was 
also part of the adaptive rebuilding strategy described above, which 
sought to evaluate the more fundamental scientific information mid-way 
through the rebuilding period for most stocks. GARM III, completed in 
August 2008, included a series of meetings over the course of 1 year. 
GARM III evaluated the underlying data and models utilized for 
assessment of the NE multispecies regulated species and ocean pout 
stocks, evaluated the biological reference points, established new 
reference points, assessed the biomass and fishing mortality status of 
the NE multispecies regulated species and ocean pout stocks in 2007, 
and provided examples of the Fs that would be expected to rebuild 
overfished stocks.
    GARM III concluded that 11 stocks were still subject to overfishing 
(i.e., F was above FMSY), and that 11 stocks were overfished 
(i.e., biomass levels were less than one half of the biomass at MSY 
(BMSY)), with 9 stocks classified as both overfished and 
subject to overfishing. A final determination on the status of pollock 
could not be made until the fall 2008 survey data were available, as 
the status of this species is based on the 3-yr centered average of the 
fall biomass indices. Such data were available in January 2009, and 
indicated that pollock is overfished. GARM III also indicated that some 
stocks improved in status from the previous assessment (GARM II), with 
GOM haddock and GB haddock classified as rebuilt in 2000 and 2006, 
respectively, and GOM cod expected to be rebuilt by 2009.
    The Council began development of Amendment 16 in 2006 with the 
intent of implementing any necessary revisions to management measures 
based upon the results of GARM III by the start of fishing year (FY) 
2009 on May 1, 2009. On November 6, 2006, a notice of intent to prepare 
a supplemental EIS and hold scoping meetings designed to solicit public 
input on any revisions to management measures necessary to continue 
rebuilding overfished NE multispecies regulated species and ocean pout 
stocks was published in the Federal Register (November 6, 2006; 71 FR 
64941). The Council continued to develop Amendment 16 for 
implementation in FY 2009 until a presentation by the NMFS Northeast 
Fisheries Science Center (NEFSC) regarding preliminary estimates of 
2006 stock size and F at the June 2008 Council meeting indicated that 
draft effort control measures under development for Amendment 16 were 
not targeting the correct stocks. Based on this information, the 
Council decided to wait until the receipt of the final GARM III 
assessment results in September 2008 to continue development of 
Amendment 16. The Council subsequently developed a revised schedule for 
development for Amendment 16, which postponed implementation of 
Amendment 16 until the start of FY 2010 on May 1, 2010. In addition, 
the Council voted on September 4, 2008, to request that NMFS implement 
an interim action for the duration of FY 2009 (May 1, 2009-April 30, 
2010), and recommended a specific suite of management measures for the 
interim action. A proposed rule to implement interim management 
measures published on January 16, 2009 (74 FR 2959), with final interim 
measures published on April 13, 2009 (74 FR 17030) and effective on May 
1, 2009.
    Based upon the final results of GARM III, the Council adopted draft 
management measures and an associated draft EIS (DEIS) at its February 
2009 meeting. A notice of availability for the DEIS, which analyzed the 
impacts of all of the measures under consideration in Amendment 16, was 
published on April 24, 2009 (74 FR 18705), with public comments 
accepted through June 8, 2009. Final measures for Amendment 16 were 
adopted by the Council at its June 2009 meeting, with revisions to the 
discard provisions adopted at its September 2009 meeting. A notice of 
availability for Amendment 16, including the FEIS, as submitted by the 
Council for review by the Secretary of Commerce (Secretary), was 
published in the Federal Register on October 23, 2009 (74 FR 54773). 
The comment period on the Amendment 16 and its associated FEIS ends on 
December 22, 2009. In addition to the implementing measures proposed in 
this rule, Amendment 16 contains changes to status determination 
criteria and other aspects of the management program, such as an ABC 
control rule and potential sector contributions, that are not reflected 
in regulations, but that are summarized below.

Proposed Measures

    Amendment 16 proposes a large number of changes to the management 
regime for the NE multispecies fishery, including revisions/additions 
to existing regulations. This proposed rule also includes revisions to 
regulations that are not specifically identified in Amendment 16, but 
that are necessary to effectively implement the provisions in Amendment 
16, or to correct errors in, or clarify, existing provisions. A 
description of the proposed management measures follows.

1. Incorporation of Atlantic Wolffish Into the FMP

    Section 304(e) of the Magnuson-Stevens Act requires either the 
Council or the Secretary to develop a fishery management plan or 
proposed regulations to end overfishing and rebuild a stock within 2 
years of notice that the fishery is overfished. Atlantic wolffish was 
recently determined to be overfished by the Data Poor Working Group, 
with notice provided to the Council in February 2009. Because this 
species is occasionally caught by both the commercial and recreational 
NE multispecies fisheries, Amendment 16 proposes to incorporate 
Atlantic wolffish into the FMP. Accordingly, the term ``regulated 
species'' would be revised to include large-mesh species, ocean pout, 
and Atlantic wolffish. Status determination criteria, a rebuilding 
plan, and management measures to rebuild this stock are also proposed 
in Amendment 16.

2. Status Determination Criteria

    Amendment 16 proposes to update the status determination criteria 
for existing NE multispecies regulated species and ocean pout stocks 
based upon the best available scientific information regarding stock 
status resulting from GARM III. In addition, because Amendment 16 would 
add Atlantic wolffish to the FMP, biological reference points would be 
established for this species. Based upon the results of GARM III, 
biological reference points have been revised from those adopted in 
Amendment 13. Stock status determinations were updated relative to the 
revised reference points. In summary, the F at 40 percent of maximum 
spawning potential (F40% MSP) was used as a proxy for FMSY 
for most of the age-based stocks. Spawning stock biomasses at maximum 
sustainable yield (SSBMSY) were calculated using F40% MSP, 
with an assumption on the recruitment that should occur at 
SSBMSY. Changes to the status determination criteria are 
more fully discussed in Section 4.2 of Amendment 16, and in Section 1 
of the GARM III report. Table 1 lists the proposed revised status 
determination criteria, and numerical estimates of these parameters are 
listed in Table 2.

[[Page 69384]]



                                       Table 1--Description of the Proposed Revised Status Determination Criteria
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                                                                  Biomass target          Minimum biomass
              Species                         Stock                  (Btarget)               threshold            Maximum fishing mortality threshold
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Cod................................  GB.....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Cod................................  GOM....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Haddock............................  GB.....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Haddock............................  GOM....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Yellowtail flounder................  GB.....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Yellowtail flounder................  SNE/MA.................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Yellowtail flounder................  CC/GOM.................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
American plaice....................  .......................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Witch flounder.....................  .......................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Winter flounder....................  GB.....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Winter flounder....................  GOM....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Winter flounder....................  SNE....................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Redfish............................  .......................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F50% MSP.
White hake.........................  .......................  SSBMSY:SSB/R (40% MSP)  \1/2\ Btarget.........  F40% MSP.
Pollock............................  .......................  External..............  \1/2\ Btarget.........  Relative F at replacement.
Windowpane flounder................  Northern...............  External..............  \1/2\ Btarget.........  Relative F at replacement.
Windowpane flounder................  Southern...............  External..............  \1/2\ Btarget.........  Relative F at replacement.
Ocean pout.........................  .......................  External..............  \1/2\ Btarget.........  Relative F at replacement.
Atlantic halibut...................  .......................  Internal..............  \1/2\ Btarget.........  F0.1.
Atlantic wolffish..................  .......................  SSBMSY: SSB/R(40% MSP)  \1/2\ Btarget.........  F40% MSP.
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                                   Table 2--Numerical Estimates for the Proposed Updated Status Determination Criteria
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                                                      Biomass target (Btarget) in   Minimum biomass threshold    Maximum fishing mortality
            Species                     Stock                      mt                 (\1/2\ Btarget) in mt      threshold (FMSY or proxy)    MSY in mt
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Cod............................  GB.................  148,084....................  74,042.....................  0.25.......................       31,159
Cod............................  GOM................  58,248.....................  29,124.....................  0.24.......................       10,014
Haddock........................  GB.................  153,329....................  76,664.....................  0.35.......................       33,604
Haddock........................  GOM................  5,900......................  2,950......................  0.43.......................        1,360
Yellowtail flounder............  GB.................  43,200.....................  21,600.....................  0.25.......................        9,400
Yellowtail flounder............  SNE/MA.............  27,400.....................  13,700.....................  0.25.......................        6,100
Yellowtail flounder............  CC/GOM.............  7,790......................  3,895......................  0.24.......................        1,720
American plaice................  ...................  21,940.....................  10,970.....................  0.19.......................        4,011
Witch flounder.................  ...................  11,447.....................  5,724......................  0.20.......................        2,352
Winter flounder................  GB.................  16,000.....................  8,000......................  0.26.......................        3,500
Winter flounder................  GOM................  3,792......................  1,896......................  0.28.......................          917
Winter flounder................  SNE................  38,761.....................  19,380.....................  0.25.......................        9,742
Redfish........................  ...................  271,000....................  135,500....................  0.04.......................       10,139
White hake.....................  ...................  56,254.....................  28,127.....................  0.13.......................        5,800
Pollock *......................  ...................  2.00 kg/tow................  1.00 kg/tow................  5.65 c/i...................       11,320
Windowpane flounder *..........  Northern...........  1.4 kg/tow.................  0.7 kg/tow.................  0.50 c/i...................          700
Windowpane flounder *..........  Southern...........  0.34 kg/tow................  0.17 kg/tow................  1.47 c/i...................          500
Ocean pout *...................  ...................  4.94 kg/tow................  2.47 kg/tow................  0.76 c/i...................        3,754
Atlantic halibut...............  ...................  49,000.....................  24,500.....................  0.07.......................        3,500
Atlantic wolffish..............  ...................  1747-2202..................  400-500....................  <0.35......................      278-311
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*Estimates of FMSY or proxy for these stocks use an index-based method to evaluate stock status and are based on a moving average, calculated as
  described in GARM III. Values presented in this table for these stocks represent catch (landings plus discards in 1,000's mt) per survey index of
  relative biomass (kg/tow) for that stock.

3. Rebuilding Programs

    According to GARM III, two NE multispecies stocks have achieved 
their target biomass levels and are no longer considered overfished; 
the GB haddock stock was rebuilt in 2006, while GOM haddock was rebuilt 
in 2000. However, GARM III, and the subsequent data available for 
pollock, also indicated that several other NE multispecies stocks are 
now overfished; these stocks are witch flounder, GB winter flounder, 
northern windowpane flounder, and pollock. As a result, the Council is 
proposing new rebuilding programs for these stocks under Amendment 16, 
assuming the rebuilding programs will begin in FY 2010. For witch 
flounder and GB winter flounder, the proposed rebuilding programs would 
rebuild these stocks by 2017, with a 75-percent probability of success. 
The rebuilding programs proposed for pollock and northern windowpane 
flounder would rebuild these stocks by 2017, but because status 
determination criteria for these stocks are based upon survey indices, 
a probability of success cannot be calculated at this time.
    Analysis by the Data Poor Working Group indicated that Atlantic 
wolffish is overfished. However, because the life history of this 
species is not well understood, there is considerable uncertainty in 
the evaluation of stock status and stock projections. As a result, it 
is not possible to determine a rebuilding period or a rebuilding F for 
this species at this time, although measures to reduce F for this stock 
are proposed under Amendment 16, as outlined below.
    Amendment 13 established a phased rebuilding strategy for SNE/MA 
winter

[[Page 69385]]

flounder that would evaluate the rebuilding progress in 2008 and adjust 
the rebuilding F in 2009 to achieve rebuilding by 2014. Based upon GARM 
III data, projections indicate that this stock is unlikely to rebuild 
by 2014 in the absence of any fishing mortality, but would likely 
rebuild between FYs 2015 and 2016. Since this stock is caught as non-
targeted catch in other large-mesh fisheries, small-mesh fisheries, and 
the scallop dredge fishery, the only way to achieve zero F would be to 
eliminate all fishing activity in the SNE/MA winter flounder stock 
area, including fisheries for scallops, summer flounder, and other non-
groundfish species. This would entail closing several important 
fisheries from off Cape Cod, MA to the Maryland coast. Hundreds of 
millions of dollars in yield would be sacrificed for a relatively small 
change, if any, in the projected rebuilding period for this stock. The 
Council considers this unnecessary and impracticable, since, even 
without any fishing mortality, this stock could not be rebuilt within 
the Amendment 13 timelines (i.e., by 2014) and is projected to be 
rebuilt between FYs 2015 and 2016. Instead, Amendment 16 proposes to 
prohibit possession and landings of SNE/MA winter flounder, which would 
result in achieving a F as close to zero as practicable. In addition, 
Amendment 16 would require all non-Sector vessels fishing within two 
restricted gear areas to use selective gear to minimize the catch of 
SNE/MA winter flounder and other stocks. Although the benefits of these 
restricted gear areas are uncertain and have not been used to 
contribute to the F reductions of the proposed action, any decrease in 
F associated with these requirements would only increase the 
probability that rebuilding under the proposed measures would occur 
between FYs 2015 and 2016. With the implementation of management 
measures proposed under Amendment 16, including the proposed measures 
that affect the catch of SNE/MA winter flounder, this stock will no 
longer be subject to overfishing. There is considerable scientific 
uncertainty associated with the assessment for this stock, as 
recruitment observed between 2004 and 2008 was less than half of that 
assumed when the rebuilding plan and associated management measures 
were developed under Amendment 13. This suggests that differences 
between projected and observed recruitment patterns and other factors 
will influence when this stock is rebuilt. Projections of stock status 
under a F of zero are similar to those using a F of as close to zero as 
practicable, as proposed under this action, indicating that there is 
little difference between when this stock is expected to rebuild under 
either scenario (see Section 7.2.1.1.3.1 of the Amendment 16 FEIS). 
Therefore, to impose a complete closure of commercial and recreational 
fisheries in the SNE/MA winter flounder stock area and still not 
achieve the objectives of rebuilding this stock by 2014 is contrary to 
the objectives of the Magnuson-Stevens Act and would result in severe 
economic impacts without biological benefits. Further, section 
304(e)(7) of the Magnuson-Stevens Act recognizes that an FMP may not 
always make adequate progress to achieving rebuilding objectives and 
allows time for revisions to be made to make adequate progress toward 
rebuilding overfished stocks. This action is thus designed to eliminate 
targeting of this stock and to reduce discards in other trawl fisheries 
in order to reduce F to the extent practicable, without delaying the 
projected rebuilding of this stock. As a result, the rebuilding target 
listed in Table 3 for this stock should be interpreted as ``as close to 
zero as practicable,'' rather than zero.
    Previous stock assessments for Atlantic halibut were insufficient 
to calculate a rebuilding F. As a result, although the stock was 
classified as overfished, no target F was calculated. GARM III included 
an analytic assessment for this species that was able to calculate a 
rebuilding F shown in Table 3 and an end date for rebuilding of 2055, 
based upon the biology of this species.
    The GARM III review of GOM winter flounder indicated that it is 
highly likely that the stock is overfished. However, due to the high 
degree of uncertainty of the assessment, the GARM III review panel 
suggested that the assessment could not be used to provide management 
advice or stock projections. As a result, a formal rebuilding program 
has not been developed for this stock under Amendment 16, although 
rebuilding for this stock is expected to result from measures proposed 
under Amendment 16 to rebuild other stocks. This stock will continue to 
be monitored and, should additional information lead to a determination 
that the stock is overfished, a formal rebuilding program would be 
developed in a subsequent action.

4. ABC Control Rule and Mortality Reductions Necessary To Achieve 
Rebuilding Targets

    Management measures proposed in this action are designed to reduce 
F to the target F for each stock, as specified in Table 3. Two factors 
contribute to determining the target F under Amendment 16: The ABC 
control rule specified by the Council's Scientific and Statistical 
Committee (SSC), and the F necessary to rebuild overfished stocks 
within the rebuilding period (Frebuild). The ABC control 
rule proposed by the SSC was adopted by the Council at its June 2009 
meeting and would replace the MSY control rule in Amendment 13. The ABC 
control rule would specify that the ABC for each stock should be 
determined as the catch at 75 percent of FMSY, and that, if 
the catch at 75 percent of FMSY would not achieve the 
mandated rebuilding requirements, ABC should be based upon 
Frebuild. For stocks that cannot be rebuilt within existing 
rebuilding periods, the ABC should be based upon incidental bycatch, 
including a reduction in the existing bycatch rate. Finally, for stocks 
with unknown status, ABC would be determined on a case-by-case basis by 
the SSC.
    Because GARM III assessed the status of the stocks through 2007, to 
calculate Frebuild it is necessary to estimate the F 
resulting from measures in place for 2008 and 2009. Catch data for FY 
2008 are available, along with estimates of F resulting from measures 
implemented by the 2009 interim action. Projections were run to 
determine rebuilding F targets using an estimate of 2008 F based upon 
available catch data, as well as the assumptions regarding expected F 
resulting from interim measures in 2009. Table 3 lists the percentage 
change in F necessary to achieve the target F (either 
Frebuild or the catch at 75 percent of FMSY), as 
appropriate, from F estimated for FY 2008. Mortality reductions for 
several stocks are not available because the assessments for these 
stocks did not produce reliable estimates of F that could be used in 
projection models to estimate Frebuild.

[[Page 69386]]



                              Table 3--Summary of Reductions in F Necessary to Achieve the Target F in 2010 for Each Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Change in F
                                                                                                  Targeted F               2008 F from    necessary to
                    Species                                    Stock                   2007 F       (either       Fmsy      2008 Catch  achieve Frebuild
                                                                                                  Frebuild or                  Data      using catch and
                                                                                                  75 of FMSY)                                F 2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cod............................................  GB...............................        0.300         0.184      0.2466        0.410               -55
Cod............................................  GOM..............................        0.456         0.18        0.237        0.300               -40
Haddock........................................  GB...............................        0.230         0.26        0.350        0.079               229
Haddock........................................  GOM..............................        0.350         0.32        0.430        0.250                28
Yellowtail flounder............................  GB...............................        0.289         0.109       0.254        0.130               -16
Yellowtail flounder............................  SNE/MA...........................        0.413         0.072       0.254        0.120               -40
Yellowtail flounder............................  CC/GOM...........................        0.414         0.18        0.239        0.289               -38
American plaice................................  GB/GOM...........................        0.090         0.14        0.190        0.099                41
Witch flounder.................................  .................................        0.290         0.15        0.200        0.296               -49
Winter flounder................................  GB...............................        0.280         0.20        0.260        0.131                49
Winter flounder................................  GOM..............................        0.417       N/A           0.283        0.317               N/A
Winter flounder................................  SNE/MA...........................        0.649         0.000       0.248        0.265              -100
Redfish........................................  .................................        0.005         0.03        0.038        0.008               275
White hake.....................................  GB/GOM...........................        0.150         0.084       0.125        0.065                29
Pollock........................................  GB/GOM...........................       10.464         4.245        5.66       15.516               -73
Windowpane flounder............................  Northern.........................        1.960       N/A            0.50          N/A               N/A
Windowpane flounder............................  Southern.........................        1.850       N/A            1.47          N/A               N/A
Ocean Pout.....................................  .................................        0.380       N/A           0.760          N/A               N/A
Atlantic halibut...............................  .................................        0.065         0.044       0.073        0.060               -27
Atlantic wolffish..............................  .................................          N/A       N/A             N/A          N/A               N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------

5. ABC/ACL Specifications and Distribution Process

    The recent reauthorization of the Magnuson-Stevens Act required 
fishery management councils to establish a mechanism for specifying 
ACLs for each managed fishery such that overfishing does not occur in 
the fishery, and measures to ensure accountability. NMFS revised the 
National Standard 1 Guidelines to assist Councils in complying with the 
new requirements (January 16, 2009; 74 FR 3178), which were used by the 
Council in developing both the ABC/ACL process and the associated AMs 
in Amendment 16.

ABC/ACL Specifications Process

    According to the Magnuson-Stevens Act, ACLs developed by a Council 
for a particular fishery may not exceed the fishing level 
recommendations of the Council's SSC or other peer-review process. The 
Magnuson-Stevens Act requires that ACLs must take effect in FY 2010 for 
fisheries subject to overfishing, and in FY 2011 for all other 
fisheries. Because several stocks managed under the FMP are subject to 
overfishing, Amendment 16 proposes a process to specify ABCs and ACLs 
for the NE multispecies fishery for implementation in FY 2010.
    Under Amendment 16, ABCs/ACLs would be developed as part of the 
biennial adjustment process established in the FMP (a complete 
description of the ABC/ACL specification process is in Section 4.2.1 of 
the Amendment 16 FEIS). The Groundfish Plan Development Team would 
develop recommendations for setting an ABC, ACL, and overfishing level 
(OFL) for each stock for each of the next 3 years following the 
implementation of the biennial adjustment, or yearly for stocks managed 
by the U.S./Canada Resource Sharing Understanding (Understanding) 
(currently, GB yellowtail flounder, Eastern GB cod, and Eastern GB 
haddock) through a specifications package. These recommendations would 
be based upon the ABC control rule, as described above; updated 
information regarding the status of each stock, including 
Frebuild for overfished stocks; recommendations of the 
Transboundary Management Guidance Committee (TMGC) for appropriate 
catch levels for stocks managed by the Understanding; and any other 
guidance provided by the SSC. The ABCs developed through the process 
would be distributed among the various segments of the fishery that 
catch NE multispecies. These sub-ABCs would then be reduced to account 
for management uncertainty to derive how the overall ACL for each stock 
is divided into various sub-components of the fishery, as described 
further below. The PDT would develop an informal document that 
describes how these recommendations were developed, including estimates 
of scientific and management uncertainty considered by the PDT, whether 
different levels of management uncertainty were applied to different 
components of the fishery, and whether total allowable catches (TACs) 
have been exceeded during previous fishing years. The SSC would then 
approve the PDT's ABC recommendations or provide alternative ABC 
recommendations, describing elements of scientific uncertainty used to 
develop its recommendations, and offer any other recommendations 
regarding ACLs or other relevant issues. The Council would then 
consider the recommendations of the SSC, PDT, and TMGC and adopt ABCs 
and ACLs for each stock. As required by the Magnuson-Stevens Act, the 
Council must adopt ACLs that are equal to or lower than the ABC 
recommended by the SSC, taking into account management uncertainty. The 
Council would adopt the ABC/ACL specifications and submit them to NMFS 
by December 1, for approval and implementation in a manner consistent 
with the Administrative Procedure Act.
    The numeric ABCs and ACLs developed pursuant to this process are 
not codified in this proposed rule and will be specified in a separate 
future rulemaking. The Council is currently developing an ABC/ACL 
specifications package to be implemented concurrently with the 
provisions contained in this proposed rule for Amendment 16 management 
measures at the start of FY 2010 on May 1, 2010. The measures proposed 
in Amendment 16 are intended to achieve, but not exceed, the ABCs and 
ACLs established for FYs 2010-2012. The ABCs and ACLs for 2013 and 
beyond would be specified according to the process described above, 
unless otherwise modified through a future Council action.

[[Page 69387]]

ACL Distribution

    As noted above, the PDT would recommend distributing the ABC among 
the various segments of the fishery that catch NE multispecies 
regulated species and ocean pout, and reducing such sub-ABCs to account 
for management uncertainty for each individual sub-component of the 
fishery that catch such stocks based upon the catch available to U.S. 
fishermen, as further described below and as described in detail in 
Section 4.2.1.3 of the Amendment 16 FEIS. These sub-components of the 
fishery include vessels operating in state waters that catch regulated 
species and ocean pout, but do not hold Federal NE multispecies 
permits; other non-specified sub-components of the fishery that may 
catch regulated species and ocean pout as bycatch when prosecuting 
other fisheries (i.e., exempted fisheries and fisheries for exempted 
species); vessels participating in the Atlantic sea scallop fishery 
that catch yellowtail flounder stocks as bycatch; vessels participating 
in the Atlantic herring fishery that catch haddock as bycatch; and 
catch of regulated species and ocean pout by the commercial and 
recreational NE multispecies fisheries. Some sub-components of the 
fishery would not be subject to any automatic AMs under Amendment 16 
and would, thus, be allocated sub-components of the ACL. The sub-
components of the fishery that are subject to AMs would be allocated 
sub-ACLs for each stock of regulated species and ocean pout that they 
catch. These distributions, and the stocks that are allocated to the 
recreational fishery, could be revised through the framework adjustment 
process established in the existing regulations.
    Catch by vessels operating in state waters that do not hold Federal 
NE multispecies permits is outside of the jurisdiction of the FMP, but 
is included in the overall ABC for NE multispecies regulated species 
and ocean pout stocks. As a result, such catch must be accounted for, 
but would not be monitored outside of the biennial adjustment process 
for assessment purposes. The estimates of such catch would be adjusted 
pursuant to the biennial adjustment process specified above. For GOM 
cod and GOM haddock, this state-waters catch would be deducted from the 
sub-ACL available to the commercial fishery (i.e., vessels issued a 
limited access NE multispecies permit or open access NE multispecies 
Handgear B permit). The sub-ACL available to recreational vessels would 
include catch of GOM cod and GOM haddock in both state waters and 
Federal waters, and any associated recreational AMs would be triggered 
by the cumulative catch of such stocks by all recreational vessels.
    The sub-components of the fishery that are not subject to AMs 
include vessels fishing in exempted fisheries that occur in Federal 
waters (e.g., the northern shrimp exempted fishery and the Cultivator 
Shoal whiting fishery exemption) and vessels targeting exempted species 
(e.g., the summer flounder fishery in SNE)--fisheries that are not 
allowed to land NE multispecies regulated species or ocean pout and 
that have demonstrated very low NE multispecies bycatch--as well as the 
Atlantic sea scallop fishery, which catches yellowtail flounder as 
bycatch. If catch from such fisheries exceeds the amount allocated, AMs 
would be developed and implemented in a separate future management 
action to prevent the overall ACL for each stock from being exceeded, 
pursuant to the biennial review or framework adjustment process 
established in the existing regulations.
    The ACLs for all three stocks of yellowtail flounder would be 
reduced to account for projected yellowtail flounder bycatch in the 
Atlantic sea scallop fishery. The level of yellowtail flounder bycatch 
in the scallop fishery would vary from year-to-year, based upon scallop 
and NE multispecies abundance, the rotational management program 
specified for the scallop fishery, and other factors. At a minimum, the 
yellowtail flounder sub-component of the ACL allocated to the scallop 
fishery would be consistent with the incidental catch amounts specified 
for closed area access programs specified in the current regulations 
(e.g., at least 10 percent of the GB yellowtail flounder ACL would be 
specified to account for closed area access programs on GB, when open 
under the rotational management program). Similar to the other non-
specified sub-components of the ACL described above, with the exception 
of GB yellowtail flounder, yellowtail flounder bycatch in the scallop 
fishery would initially be treated as a sub-component of the ACL, 
rather than a sub-ACL, and, therefore, would not be subject to any 
specific AMs under Amendment 16. The existing regulations regarding the 
Understanding require that any overages of the TACs managed by the 
Understanding would be deducted from the available U.S. portion of the 
appropriate TAC during the following year. Therefore, any overages of 
the U.S. portion of the GB yellowtail flounder TAC, including those by 
the scallop fishery, would be deducted from the U.S. portion of the GB 
yellowtail flounder TAC during the following year. The Council is 
currently developing Amendment 15 to the Atlantic Sea Scallop FMP, 
which is expected to develop AMs for the catch of yellowtail flounder 
in the scallop fishery. If such measures are implemented, the 
yellowtail flounder bycatch in the scallop fishery would then become 
classified as a sub-ACL controlled by an appropriate AM.
    In 2006, Framework Adjustment 43 to the FMP (August 15, 2006; 71 FR 
46871) specified that 0.2 percent of the GOM and GB haddock target TACs 
would be allocated to the Atlantic herring fishery to accommodate 
haddock bycatch. Amendment 16 would maintain this allocation, but 
update it to reflect that 0.2 percent of the GOM and GB haddock ACL 
would be allocated to the Atlantic herring fishery. This allocation 
would be considered a sub-ACL. The existing regulations already contain 
AMs in the form of elimination of the directed herring fishery in 
particular areas, and haddock possession restrictions once this sub-ACL 
is projected to be caught. Because the existing regulations combine 
catches from both stocks of haddock, this haddock sub-ACL allocated to 
the herring fishery is not currently monitored on a stock-specific 
basis.
    Finally, the ACL for each NE multispecies regulated species and 
ocean pout stock would be allocated to the NE multispecies commercial 
and recreational fisheries. With the exception of GOM cod and GOM 
haddock, as noted below, the ACL for each NE multispecies regulated 
species and ocean pout stock would be allocated to the commercial NE 
multispecies fishery. This would be further divided between vessels 
participating in approved Sectors and those fishing under the 
provisions for the common pool (i.e., those vessels not participating 
in an approved Sector), as described further in Item 14 of this 
preamble. An allocation for a particular stock would not be made to the 
recreational fishery if it is determined that, based upon available 
information, the ACLs for NE multispecies regulated species and ocean 
pout stocks are not being fully harvested by the NE multispecies 
fishery, or if the recreational harvest, after accounting for state-
waters catch as described above, is less than 5 percent of the overall 
catch for a particular stock. If a stock is allocated to the 
recreational fishery, the distribution of the available ACLs for these 
stocks between the commercial and recreational fisheries would be 
determined based upon the average proportional catch of each component

[[Page 69388]]

for each stock during FYs 2001 through 2006. Based upon these criteria, 
only two NE multispecies stocks would be allocated to the recreational 
fishery at this time: GOM cod and GOM haddock.

6. AMs

    As described in Item 5 of this preamble, Councils must establish 
measures that prevent overfishing and ensure accountability in each 
fishery. AMs are management controls that are intended to prevent ACLs 
from being exceeded, or to correct/mitigate overages if they occur. 
Amendment 16 would implement AMs for both the commercial and 
recreational fisheries, as described below, including separate AMs for 
Sector vessels, vessels fishing in the common pool, and private 
recreational and charter/party vessels. Under Amendment 16, if the 
overall ACL for a stock is exceeded, the AMs applicable to the NE 
multispecies fishery, including those specified for Sector, common 
pool, and recreational and charter/party vessels, would be triggered, 
as specified below.

Sector AMs

    Since Sectors were first implemented in 2004 under Amendment 13, 
Sectors have provided an alternative to DAS and trip limits for 
managing the catch of particular stocks. Similarly, Amendment 16 would 
specify alternative AMs for common pool vessels and those participating 
in Sectors. Amendment 16 would prohibit Sector vessels from fishing in 
a particular stock area unless that Sector is allocated or acquires 
quota for all NE multispecies regulated species or ocean pout stocks 
allocated to Sectors and caught in that stock area. In addition, 
Amendment 16 would require that Sector vessels cease fishing in a 
particular stock area if the Sector exceeds its allocation of any NE 
multispecies regulated species or ocean pout stocks caught in a 
particular stock area. While Sectors could balance such overages 
through acquiring allocation from another Sector, any overages at the 
end of the FY would be deducted from that Sector's allocation during 
the subsequent FY. As described below for the AMs effective if the 
overall ACL for a particular stock is exceeded, the catch used to 
determine an individual Sector's overage would include catch by each 
Sector's vessels, as well as catch by other sub-components of the 
fishery. If either the catch of a particular stock by a Sector's 
vessels alone, or the catch of a particular stock by a Sector's vessels 
added to a Sector's portion of the overall ACL overage caught by other 
sub-components of the fishery exceeds the amount of that stock's ACL 
allocated to an individual Sector, the amount of the overage would be 
deducted from that Sector's allocation for that stock during the 
following FY. If a Sector disbands following an overage, or does not 
have sufficient allocation to cover the overage, an appropriate DAS or 
Sector share penalty or fishing prohibition would apply to each 
individual participating vessel during the subsequent FY, as further 
described in Item 14 of this preamble. If a Sector exceeds its 
allocations multiple times or by a large amount, the Sector operations 
plan or monitoring program may be insufficient to control fishing 
effort and could justify disapproval of the Sector in future years. 
These measures are intended to ensure that Sectors avoid exceeding 
their allocations. If Sector allocations are exceeded, appropriate 
measures would be taken to either balance the overage or address it 
through penalties in the following FY.

Common Pool AMs

    Common pool vessels would be subject to two types of AMs: A 
differential DAS counting AM during FYs 2010 and 2011, and a hard-TAC 
AM overlaid upon the DAS effort controls in FY 2012 and beyond. This 
transition from a DAS AM to a hard-TAC AM reflects the Council's intent 
to transition from an effort control fishery to one managed through 
hard TACs. This transition also would enable monitoring systems and 
service providers to prepare for the increase in infrastructure and 
personnel necessary to accommodate the influx of higher volumes of 
catch data and the need to monitor greater numbers of offloads, as 
further described below.
    Under the proposed differential DAS counting AM, if the NMFS 
Regional Administrator projects that the sub-ACL available to common 
pool vessels for each NE multispecies regulated species or ocean pout 
stock would be exceeded or underharvested by the end of the FY, based 
upon catch data available through January of that year, a differential 
DAS counting factor would be applied to each Category A DAS used in the 
stock area for which the sub-ACL was exceeded or underharvested, during 
the following FY. The catch used in this projection would include catch 
by common pool vessels as well as a projection of the catch by other 
sub-components of the fishery. If either the catch of a particular 
stock by common pool vessels alone, or the catch of a particular stock 
by common pool vessels plus the common pool's portion of any catch from 
other sub-components of the fishery that cumulatively exceed the 
overall ACL is projected to exceed the common pool's allocation for a 
particular stock, the differential DAS counting AM would be triggered 
for the following FY. This projection would be updated after the end of 
the FY to help determine if the catch by other sub-components of the 
fishery are accurately estimated for the purposes of determining 
whether the differential DAS counting AM is triggered. The areas in 
which differential DAS counting would apply are defined further in this 
proposed rule. Of particular note is the differential DAS counting area 
applicable to Atlantic wolffish. The Council added Atlantic wolffish to 
the FMP, but neither specifically exempted Atlantic wolffish from the 
differential DAS counting AM, nor specified the differential DAS 
counting areas applicable to this species when it adopted Amendment 16. 
An assessment of recent catches by Council staff during the development 
of the Amendment 16 FEIS indicated that this species is primarily 
landed from inshore waters of both the GOM and GB. Therefore, this 
proposed rule would impose differential DAS counting in the Inshore GOM 
and Inshore GB Differential DAS Counting Areas if the Atlantic wolffish 
ACL is projected to be caught.
    The Amendment 16 DEIS indicates that the exact areas associated 
with this AM may be modified in the FEIS ``to be consistent with the 
overall effort control program so that a complex mosaic of DAS counting 
areas is avoided as much as possible.'' The differential DAS counting 
areas initially proposed in the DEIS have, therefore, been revised 
based upon consultation with the Groundfish PDT and the Chairman of the 
Groundfish Oversight Committee. Consistent with the intent of Amendment 
16, these areas have been modified to better reflect the broad stock 
reporting areas described in further detail in Item 8 of this preamble, 
and the existing boundaries of the U.S./Canada Management Area. 
Specifically, an Inshore GB Differential DAS Counting Area was created 
to reflect the Inshore GB Broad Stock Area (i.e., statistical area 521) 
and the numerous stocks that are found within this area; the Inshore 
GOM Differential DAS Counting Area boundaries were moved north to 
intersect with the coastline of Maine, and west to create the Inshore 
GB Differential DAS Counting Area; the Offshore GOM Differential DAS 
Counting Area boundary was moved north to completely cover the 
coastline of Maine, and the southern boundary was moved north to create 
the Inshore

[[Page 69389]]

GB Differential DAS Counting Area; the Offshore GB Differential DAS 
Counting Area boundary was moved north and west to better match the 
boundaries of the U.S./Canada Management Area; and the SNE differential 
DAS counting area boundary was moved west to have the area entirely 
outside of the U.S./Canada Management Area. NMFS is particularly 
interested in soliciting public comments on the creation of an Inshore 
GB Differential DAS Area. As originally proposed in the Amendment 16 
DEIS, the waters east of Cape Cod, including the shipping lanes known 
as ``the Channel,'' were divided between the Inshore and Offshore GOM 
Differential DAS Counting Areas. Because this area overlaps with the 
GOM, GB, and SNE stock areas for certain species, and includes both 
deep and shallow water, none of the originally proposed differential 
DAS counting areas would be completely adequate to cover the full 
ranges of some species. Thus, this proposed rule would treat this area 
separately. Accordingly, if a stock is caught inside/outside of the 
Inshore GB Differential DAS Counting Area, multiple areas would be 
subject to differential DAS counting. For example, CC/GOM yellowtail 
flounder is caught in both the Inshore GOM and the Inshore GB 
Differential DAS Counting Areas. If catch by common pool vessels 
exceeds the CC/GOM yellowtail flounder sub-ACL for this fishery, both 
areas would be subject to differential DAS counting during the 
following FY.
    The differential DAS counting factor that would apply would be 
based upon the projected proportion of the sub-ACL that is expected to 
be caught by common pool vessels plus the common pool's portion of any 
overage of the overall ACL for any stock caused by excessive catch by 
other sub-components of the fishery, if appropriate, rounded to the 
nearest even tenth, as listed in Table 4. If it is projected that catch 
in a particular FY will exceed or underharvest the sub-ACLs for several 
NE multispecies regulated species or ocean pout stocks within a 
particular stock area, the Regional Administrator would apply the most 
restrictive differential DAS counting factor within that particular 
stock area. For example, if it were projected that common pool vessels 
will be responsible for catch that is 1.2 times the GOM cod sub-ACL and 
1.1 times the CC/GOM yellowtail flounder sub-ACL, the Regional 
Administrator would apply a differential DAS counting factor of 1.2 to 
any Category A DAS fished by common pool vessels only within the 
Inshore GOM Stock Area during the following FY (i.e., Category A DAS 
would be charged at a rate of 28.8 hr for every 24 hr fished, or 1.2 
times 24-hr DAS counting). If it is projected that common pool vessels 
will underharvest all stocks within a particular stock area by at least 
10 percent and that the overall ACL for a particular stock is not 
exceeded by all sub-components of the fishery, the Regional 
Administrator would reduce the rate at which DAS are counted to allow 
the fishery to achieve the ACLs for all stocks within that area. For 
example, if the common pool catches 0.65 times the CC/GOM yellowtail 
flounder sub-ACL and 0.80 times the sub-ACL for all other stocks within 
the Inshore GOM Differential DAS Counting Area, the Regional 
Administrator would apply a differential DAS factor of 0.80 to all 
Category A DAS used only in the Inshore GOM Differential DAS Counting 
Area during the following FY (i.e., Category A DAS would be charged at 
a rate of 19.2 hr for every 24 hr fished, or 0.80 times 24-hr DAS 
counting). If the Regional Administrator determines that similar DAS 
adjustments are necessary in all stock areas (either to reduce or to 
increase effort), the Regional Administrator would adjust the ratio of 
Category A: Category B DAS to reduce/increase the number of Category A 
DAS available, based upon the amount of the overage or underage, rather 
than applying a differential DAS counting factor to all Category A DAS 
used in all stock areas.
    Any differential DAS counting factor implemented in FY 2012 for any 
ACL overages in a particular stock area during FY 2011 would be applied 
against the DAS counting rate implemented in that stock area for FY 
2011. While unlikely, it is possible that, even if the differential DAS 
counting AM is triggered in a particular stock area due to excessive 
catch of one or more ACLs in that stock area in FY 2010, the catch of 
stocks within that stock area could exceed ACLs during FY 2011, as 
well. If this were to happen, it would suggest that the differential 
DAS counting rate that was implemented as a result of excessive catch 
in FY 2010 was insufficient to prevent the ACLs specified for FY 2011 
from being exceeded. Therefore, while Amendment 16 does not 
specifically address this possibility, it stands to reason that any 
differential DAS counting factor applied to DAS fished in a particular 
stock area during FY 2012 to account for the excessive catch in FY 2011 
should be applied to the DAS rate charged during FY 2011, even if a 
differential DAS counting rate was implemented in that stock area 
during FY 2011. For example, if a projection by the Regional 
Administrator concluded that 1.2 times the GOM cod ACL was caught 
during FY 2010, a differential DAS factor of 1.2 would be applied to 
any Category A DAS used in the Inshore GOM Stock Area during FY 2011 
(i.e., Category A DAS would be charged at a rate of 28.8 hr for every 
24 hr fished, or 1.2 times 24-hr DAS counting). However, if even this 
higher DAS counting rate were insufficient to prevent the GOM cod ACL 
from being exceeded again in FY 2011 and 1.5 times the GOM cod ACL was 
caught during FY 2011, a differential DAS factor of 1.5 would be 
applied to the DAS charging rate during FY 2011 (i.e., Category A DAS 
would be charged at a rate of 43.2 hr for every 24 hr fished (1.2 x 1.5 
x 24-hr DAS charge)). This would more accurately reflect the likely 
reduction in effort needed to prevent the ACL from being exceeded, and 
increase the likelihood that catch during FY 2012 would not exceed the 
ACL in that stock area and result in the trimester TAC area closures 
being triggered.
    This differential DAS counting AM would not be triggered if the 
Regional Administrator conducts an analysis of the mixed-stock 
exception in 50 CFR 600.310(m) and determines that the mixed-stock 
exception is applicable. Pursuant to a court order in the case of 
Commonwealth of Massachusetts and State of New Hampshire v. Carlos M. 
Gutierrez (Case No. 06-cv-12110 (EFH) in the U.S. District Court, 
District of Massachusetts), NMFS conducted an analysis of the mixed-
stock exception, under old and new guidelines on this subject, to 
determine if either provision was applicable to the development of 
Framework Adjustment 42 to the FMP. Based upon this analysis, NMFS 
concluded that the mixed-stock exception, under the old and new 
guidelines, was not a viable alternative for the Council or NMFS to 
consider or implement for overfished stocks addressed by Framework 
Adjustment 42 or for any future conservation or management measures 
related to overfished stocks. This analysis concluded that: (1) This 
provision creates an exception from the requirement to end overfishing, 
but does not eliminate the need to rebuild overfished stocks within 
rebuilding timeframes established consistent with the Magnuson-Stevens 
Act; (2) cannot be applied to overfished stocks pursuant to the 
National Standard 1 Guidelines; and (3) cannot be used to jeopardize 
the rebuilding programs of overfished stocks. Currently, at least 12 NE

[[Page 69390]]

multispecies regulated species or ocean pout stocks are overfished and 
12 are subject to overfishing, with overfished stocks found in each of 
the differential DAS counting areas proposed under this AM. Because 
this AM is intended to prevent overfishing, applying the mixed-stock 
exception to avoid implementing differential DAS counting in any stock 
area due to an overage of the sub-ACL allocated to the common pool 
would likely lead to overfishing of already overfished stocks. 
Accordingly, NMFS has determined that the mixed-stock exception is 
neither applicable, nor justified under the proposed measures for this 
AM.

  Table 4--Differential DAS Factor Applied as an Accountability Measure
                          During FYs 2010/2011
------------------------------------------------------------------------
         Proportion of ACL caught              Differential DAS factor
------------------------------------------------------------------------
0.5.......................................  0.5
0.6.......................................  0.6
0.7.......................................  0.7
0.8.......................................  0.8
0.9.......................................  No change.
1.0.......................................  No change.
1.1.......................................  1.1
1.2.......................................  1.2
1.3.......................................  1.3
1.4.......................................  1.4
1.5.......................................  1.5
1.6.......................................  1.6
1.7.......................................  1.7
1.8.......................................  1.8
1.9.......................................  1.9
2.0.......................................  2.0
------------------------------------------------------------------------

    Starting in FY 2012, common pool vessels would be subject to a 
hard-TAC AM. Under this AM, the sub-ACL availab