Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 44, 5016-5032 [2010-2015]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 20 (Monday, February 1, 2010)]
[Proposed Rules]
[Pages 5016-5032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2015]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0910051338-0034-01]
RIN 0648-AY29


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 44

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

ACTION: Proposed rule; request for comment.

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SUMMARY: NMFS proposes regulations to implement measures in Framework 
Adjustment 44 (FW 44) to the Northeast Multispecies Fishery Management 
Plan (FMP), and specifications for the FMP for fishing years (FY) 2010-
2012. FW 44 measures and specifications, if approved, would be 
implemented in conjunction with approved measures in Amendment 16 to 
the FMP, as well as with approved sector operations plans authorized 
under the FMP. Specifically, FW 44 would modify the Gulf of Maine (GOM) 
cod and pollock trip limits proposed in Amendment 16; provide the 
Regional Administrator (RA) authority to implement inseason trip limits 
and/or differential day-at-sea (DAS) counting for any groundfish stock 
in order to prevent catch from exceeding the Annual Catch Limit (ACL); 
and specify Overfishing Levels (OFLs), Acceptable Biological Catch 
levels (ABCs), and ACLs for all 20 groundfish stocks in the FMP for 
fishing years 2010 through 2012, as well as the Total Allowable Catches 
(TACs) for transboundary Georges Bank (GB) stocks. NMFS also proposes 
in this rule, pursuant to current Regional Administratory authority 
under the FMP, to allocate zero trips to the Closed Area II Yellowtail 
Flounder Special Access Program (SAP); limit the Eastern U.S./Canada 
Haddock SAP to the use of Category A DAS for common pool vessels; delay 
the opening of the Eastern U.S./Canada Management Area for trawl 
vessels; and implement a GB yellowtail flounder trip limit of 2,500 lb 
(1,125 kg). Finally, this rule would make technical corrections to 
proposed Amendment 16 regulations.

DATES: Comments must be received by March 1, 2010.

ADDRESSES: You may submit comments, identified by 0648-AY29, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-rulemaking portal: https://www.regulations.gov.
     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 01930-2276. Mark the 
outside of the envelope: ``Comments on FW 44 Proposed Rule.''
     Fax: (978) 281-9135, Attn: Tom Warren
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are part of 
the public record and will generally be posted to https://www.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.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), 
which is contained in the Classification section of this proposed rule. 
Copies of the Environmental Assessment (EA) prepared for this rule may 
be found at the following internet address: https://www.nero.noaa.gov/nero/regs/frdoc/10/10MultiFW44EA.pdf.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, 
(978) 281-9347, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: Pursuant to the biennial adjustment process 
of the FMP, the New England Fishery Management Council (Council) 
developed Amendment 16 to implement a wide range of revisions to 
management measures based on the results of the most recent stock 
assessment (Groundfish Assessment Review Meeting; GARM III; August 
2008). A notice of availability for Amendment 16, including the Final 
Environmental Impact Statement, as submitted by the Council for review 
by

[[Page 5017]]

the Secretary of Commerce (Secretary), was published in the Federal 
Register on October 23, 2009 (74 FR 54773). A proposed rule for 
Amendment 16 was published on December 31, 2009 (74 FR 69382). Based on 
GARM III estimates of fishing mortality and stock size (biomass) in 
2007, and subsequent estimates of fishing mortality, Amendment 16 
proposes a suite of management measures to continue the rebuilding of 
groundfish stocks; an expanded sector management program; and a process 
for biennial specification of OFLs, ABCs, and ACLs. The analysis 
accompanying Amendment 16 indicates that the proposed management 
measures would achieve these objectives.
    However, notwithstanding the Amendment 16 analysis, NMFS, based 
upon industry concerns regarding the effectiveness of Amendment 16 
common pool measures, requested that the Council reconsider these 
measures at its September 2009 meeting. Specifically, industry 
expressed concern that assumptions inherent in Amendment 16 may be 
invalid, and therefore the Amendment 16 proposed measures may not be 
restrictive enough to prevent the ACLs from being exceeded 
(particularly for GOM cod and pollock). In particular, industry members 
noted that fishery participants may modify their effort behavior, for 
example by dropping out of sectors prior to the start of the fishing 
year and deciding to fish instead in the common pool, if there is the 
perception that common pool measures provide better fishing 
opportunities than sectors. Industry members also raised the 
possibility that Amendment 16 trip limit levels may result in over-
harvest of ACLs for these stocks. For example, based on preliminary 
information, a relatively large number of DAS may be allocated to the 
common pool (3,601 DAS), compared to the relatively low proposed GOM 
cod ACL for the common pool (337 mt; 742,937 lb). Moreover, the 
Amendment 16 trip limits for GOM cod are relatively high, at 2,000 lb 
(907.2 kg)/DAS, up to 12,000 lb (5,443.2 kg)/trip for GOM cod. As a 
result of these allocations, it may be possible for GOM cod ACL to be 
exceeded by the common pool participants. Based upon this concern, and 
because it is not possible to determine with certainty in advance 
whether the analytical assumptions in Amendment 16 will be determined 
to be valid, the Council developed more restrictive management measures 
in FW 44 at its November 2009 meeting.
    The measures in and authority for FW 44 are based in large part on 
Amendment 16 being implemented. In addition, FW 44 would modify 
proposed Amendment 16 measures. For that reason, if it is approved, FW 
44 cannot be implemented until Amendment 16 (if approved) becomes 
effective. Moreover, FW 44 measures also affect fishing activities of 
the many new sector operations being proposed in concurrent actions. If 
approved, FW 44 will become effective at the same time and in 
conjunction with Amendment 16, and therefore would be in place when new 
sector fishing operations begin on May 1, 2010. FW 44 proposes the 
following management measures and specifications:

Management Measures

1. Regional Administrator Authority

    Under FW 44, the NMFS RA, Northeast Region, would be given the 
authority to modify landing limits for any Northeast (NE) multispecies 
stock and/or DAS counting rates at any time during the FY to reduce the 
likelihood that ACLs of allocated NE multispecies stocks would be 
exceeded, or to facilitate the harvesting of ACLs. For example, if, 
based on available information regarding catch of a particular stock, 
NMFS projects that the ACL will be exceeded prior to the end of the 
fishing year, the RA may implement a more restrictive landing limit for 
that stock that would be effective for the remainder of the fishing 
year, unless further modified. Alternatively, for the same stock, the 
RA could instead decide to implement a more restrictive DAS counting 
rate in the geographic area that pertains to the stock (or implement a 
change to both a possession limit and DAS counting rate). A 
modification to the DAS counting rate, under this example, would apply 
to one or more of the differential DAS counting areas proposed in 
Amendment 16 that correspond to the pertinent stock(s) (e.g., Inshore 
GOM Differential DAS Area; Offshore GOM Differential DAS Area; Inshore 
GB Differential DAS Area; Offshore GB Differential DAS Area; and 
Southern New England/Mid-Atlantic (SNE/MA) Differential DAS Area). This 
inseason adjustment could be implemented by the RA even on the first 
day of the fishing year. Thus, beginning in FY 2011, the RA could 
adjust the inseason DAS counting rate, in addition to the adjustment to 
the DAS counting rate that would be triggered under Amendment 16 as an 
accountability measure (AM), in response to exceeding an ACL during the 
previous FY.
    Although NMFS is not proposing the RA use this new authority at the 
beginning of FY 2010, NMFS is nonetheless concerned that the ACLs for 
certain stocks may be exceeded in FY 2010, which would trigger 
accountability measures in FY 2011. To address the concern for stocks 
such as GOM winter flounder and GB cod (stocks for which the proposed 
ACLs are substantially less than recent catch levels), NMFS will 
monitor catch rates closely and be prepared to implement effort 
restrictions early in FY 2010, if necessary.

2. Modification to Amendment 16 Proposed Possession Limits

    FW 44 would modify the proposed Amendment 16 GOM cod trip limit and 
replace it with the current, status quo trip limit for GOM cod. 
Specifically, for limited access DAS vessels, FW 44 would replace the 
proposed Amendment 16 GOM cod limit of 2,000 lb (907.2 kg) up to 12,000 
lb (5,443.2 kg)/trip, with the status quo GOM cod trip limit of 800 lb 
(362.9 kg)/DAS, up to 4,000 lb (1,818.4 kg)/trip. For vessels with a 
limited access Handgear A or open access Handgear B permit, FW 44 would 
also replace the proposed Amendment 16 cod limits of 750 lb (340.2 kg) 
and 200 lb (90.7 kg), respectively, with the status quo trip limits of 
300 lb (136.1 kg) and 75 lb (34 kg) per trip. In addition, FW 44 would 
implement a new trip limit for pollock of 1,000 lb (453.6 kg)/DAS, up 
to 10,000 lb (4,536.0 kg)/trip. Currently there is no trip limit for 
pollock, nor is there one proposed in Amendment 16. The proposed FW 44 
trip limits are intended to reduce the likelihood of exceeding the GOM 
cod and pollock ACLs.

3. Requirement for Limited Access Scallop Vessels To Land Yellowtail 
Flounder

    In conjunction with the allocations of yellowtail flounder to the 
scallop fishery (described below under ``specifications''), vessels 
with a Federal limited access scallop permit are required to land all 
legal-sized yellowtail flounder to reduce discarding. This provision 
may also provide an incentive for scallop vessels to minimize the catch 
of yellowtail flounder, if landing yellowtail flounder is not cost-
effective.

Specifications

    The Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), 16 U.S.C. 1361-1423h, requires ACLs to be 
implemented in FY 2010 for stocks determined to be subject to 
overfishing, and in FY 2011 for all other stocks. Amendment 16 proposes 
a biennial

[[Page 5018]]

process for specification of ACLs (and OFLs and ABCs) for all stocks as 
of FY 2010. Pursuant to the Amendment 16 proposed process, for FY 2010-
2012 FW 44 would specify OFLs, ABCs, and ACLs, as well as incidental 
catch TACs for all stocks covered by the Northeast Multispecies FMP. In 
addition, pursuant to current FMP requirements, the Council, in this 
rule, recommends annual specifications of U.S./Canada Management Area 
TACs. Therefore, as described in further detail below, FW 44 proposes 
to specify U.S./Canada TACs; delay the opening of the Eastern U.S./
Canada Management Area for trawl vessels for FY 2010; allocate zero 
trips for the CA II Yellowtail Flounder SAP, limit the Eastern U.S./
Canada Haddock SAP to the use of Category A DAS for common pool 
vessels, and implement a GB yellowtail flounder trip limit of 2,500 lb 
(1,125 kg). The Regional Administrator has authority to modify 
management measures for the U.S./Canada Management Area, as well as 
modify certain SAP regulations.
    FW 44 proposes the following specifications:

1. OFLs and ABCs

    Table 1 contains FW 44 proposed OFLs and ABCs for FY 2010-2012, 
based on GARM III stock assessments (2008), for all stocks with the 
exception of GB yellowtail flounder, for which the ABC is based on the 
Transboundary Resource Assessment Committee stock assessment of 2009. 
It is anticipated that the FY 2011 and 2012 values of the GB yellowtail 
flounder ABC will be revised during 2010 and 2011, respectively, based 
on new transboundary stock assessments. The OFLs and ABCs for FY 2012 
will likely be revised during the next biennial adjustment process 
(during 2011), but are being specified at this time in the event that 
the next biennial adjustment process does not result in the timely 
implementation of revised 2012 catch specifications.
    The OFL value for a stock is calculated using the estimated stock 
size for a particular year, and represents the amount of catch 
associated with Fmsy, i.e., the fishing mortality rate that, if applied 
over the long term, would result in maximum sustainable yield (MSY). 
The ABCs are those recommended by the Council's Scientific and 
Statistical Committee (SSC), and are lower than the OFLs in order to 
take into account scientific uncertainty in setting catch limits. The 
ABC value for a stock is calculated using the estimated stock size for 
a particular year, and for all stocks, with the exception of SNE/MA 
winter flounder, represents the amount of catch associated with 75 
percent of Fmsy, or the F rate required to rebuild the stock within the 
defined rebuilding time period (Frebuild), whichever is lower. For SNE/
MA winter flounder, the ABC was calculated using the F expected to 
result from management measures designed to achieve an F as close to 
zero as practicable. This ABC is consistent with the SSC recommendation 
that for stocks that cannot rebuild to Bmsy in the specified rebuilding 
period, even with no fishing, the ABC should be based on incidental 
bycatch, including a reduction in bycatch rate (i.e., the proportion of 
the stock caught as bycatch).
    According to FW 44, for all stocks, with the exception of those 
with index-based stock assessments (where no information was provided), 
the probability that the ABC catch would result in overfishing (F>Fmsy) 
is less than 20 percent. The highest probability of overfishing is 
associated with GB winter flounder (0.184, 0.191, and 0.199 for 2010, 
2011, and 2012, respectively). The ABC values for GB cod and GB haddock 
for FY 2011 and 2012 are maximum values, because no Canadian catch has 
been deducted from the overall ABC, and therefore will likely be 
specified again in conjunction with the 2011 and 2012 U.S./Canada TACs. 
The FY 2011 and 2012 U.S. ABCs for GB cod and GB haddock will therefore 
be lower than the values in Table 1 in order to take into account 
Canadian catch. For example, for FY 2010, the amount of reduction to 
the overall ABC for GB cod and GB haddock was 1,012 mt and 17,612 mt, 
respectively, which represent the Canadian portion of the shared TACs 
(Table 7).

                   Table 1--Overfishing Levels and Acceptable Biological Catches for 2010-2012
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                                                     OFL                                  U.S. ABC
             ** Stock              -----------------------------------------------------------------------------
                                        2010         2011         2012         2010         2011         2012
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GB cod............................        6,272        7,311        8,090        3,800      * 5,616      * 6,214
GOM cod...........................       11,089       11,715       11,742        8,530        9,012        9,018
GB hadk...........................       80,007       59,948       51,150       44,903     * 46,784     * 39,846
GOM hadk..........................        1,617        1,536        1,296        1,265        1,206        1,013
GB ytail..........................        5,148        6,083        7,094        1,200        1,081        1,226
SNE ytail.........................        1,553        2,174        3,166          493          687        1,003
CC ytail..........................        1,124        1,355        1,508          863        1,041        1,159
Plaice............................        4,110        4,483        4,727        3,156        3,444        3,632
Witch.............................        1,239        1,792        2,141          994        1,369        1,639
GB winter.........................        2,660        2,886        3,297        2,052        2,224        2,543
GOM winter........................          441          570          685          238          238          238
SNE winter........................        1,568        2,117        2,830          644          897        1,198
Redfish...........................        9,899       10,903       12,036        7,586        8,356        9,224
White hake........................        4,130        4,805        5,306        2,832        3,295        3,638
Pollock...........................        5,085        5,085        5,085        3,293        3,293        3,293
N. window.........................          225          225          225          169          169          169
S. window.........................          317          317          317          237          237          237
Ocean pout........................          361          361          361          271          271          271
Halibut...........................          119          130          143           71           78           85
Wolffish..........................           92           92           92           83           83           83
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** GB = Georges Bank; GOM = Gulf of Maine; hadk = haddock; ytail = yellowtail flounder; SNE = Southern New
  England/Mid-Atlantic; CC = Cape Cod/GOM; plaice = American plaice; witch = witch flounder; winter = winter
  flounder; N = north; S = south; window = windowpane flounder.
* Preliminary.


[[Page 5019]]

2. ACLs

    Pursuant to Magnuson-Stevens Act requirements and Amendment 16, the 
Council recommended ACLs that are lower than the ABCs, in order to 
account for management uncertainty. The total ACL for a stock 
represents the catch limit for a particular year, considering both 
biological and management uncertainty, and the limit includes all 
sources of catch (landed and discards) and all fisheries (commercial 
and recreational groundfish fishery, state-waters catch, and non-
groundfish fisheries). The division of a single ABC value for each 
stock (for a particular FY) into sub-ACLs, and ACL-subcomponents, 
accomplishes three objectives: (1) The ABC is sub-divided to account 
for all components of the fishery and sources of fishing mortality; (2) 
allocations are made for certain fisheries; and (3) management 
uncertainty is taken into account.
    For FW 44 the ABC was sub-divided into fishery components on a 
stock-specific manner, prior to the consideration of management 
uncertainty. The following components of the fishery are reflected in 
the total ABC: Canadian share/allowance (expected Canadian catch); U.S. 
ABC (available to the U.S. fishery after accounting for Canadian 
catch); state waters (portion of ABC expected to be caught from state 
waters outside Federal management); other sub-components (expected 
catch by other non-groundfish fisheries); scallop fishery; mid-water 
trawl fishery; commercial groundfish fishery; and recreational 
groundfish fishery. The commercial groundfish sub-ACL is further 
divided into the non-sector (common pool vessels) sub-ACL and the 
sector sub-ACL, based on the total vessel enrollment in all sectors as 
of September 1, 2009, and the cumulative Potential Sector Contributions 
(PSCs) associated with those sectors, as explained in Amendment 16 and 
the proposed rule for sector operations in FY 2010.
    As indicated in the proposed rule for sector operations for FY 2010 
(74 FR 68015, December 22, 2009), sector rosters will not be finalized 
until May 1, 2010, because sectors have until April 30, 2010, to drop 
out of a sector and fish in the common pool. Therefore, it is likely 
that the FY 2010 sector sub-ACL, which is comprised of the cumulative 
PSCs of all enrolled sector members, will be reduced and the common 
pool sub-ACL will increase after publication of the final rule 
specifying ACLs.
    Despite such changes, the groundfish sub-ACL (common pool sub-ACL 
plus the sector sub-ACL) would not change. Based on the final rosters, 
NMFS intends to publish a rule in early May 2010 to modify these sub-
ACLs, and notify the public if these numbers change. It is almost 
certain that all of the FY 2011 and 2012 sub-ACLs for the common pool 
and sectors will change and be re-specified prior to FY 2011 and 2012 
due to likely annual changes to the sector rosters. Furthermore, due to 
the need to re-specify the U.S. ABCs for GB cod and GB haddock as 
described above, all sub-components of the ABCs for GB cod and GB 
haddock will be re-specified for FY 2011 and 2012, when information on 
the Canadian TACs is available.
    The numbers in this proposed rule are based on the sector rosters 
submitted to NMFS as of September 1, 2009, as indicated in the EA. In 
contrast, the proposed Annual Catch Entitlements (ACE) for sectors are 
based on rosters as of November 30, 2009. The average difference in the 
common pool sub-ACLs between this proposed rule and the sector proposed 
rule is 36 percent. The common pool sub-ACLs in the sector proposed 
rule are lower than in this proposed rule due to an increase in sector 
members between September 1 and November 30, 2009.
    The concept of management uncertainty for the purpose of developing 
ACLs in Amendment 16, was characterized as the likelihood that 
management measures will result in a level of catch that is greater 
than the catch objective. In FW 44, management uncertainty was 
evaluated for each stock, considering the following elements of the 
fishery and the FMP: enforceability; monitoring adequacy; precision of 
management tools; latent effort; and catch of groundfish in non-
groundfish fisheries. For most stocks and components of the fishery 
(ABC components), the default adjustment (reduction) to the catch level 
for a fishery component was 5 percent. For stocks with less management 
uncertainty, the adjustment was 3 percent, and for those stocks or 
components with more management uncertainty, the adjustment was 7 
percent.
    For example, the 2010 pollock ABC set by the SSC was 3,813 mt. 
Excluding the estimated Canadian pollock catch of 520 mt, the U.S. ABC 
in 2010 for pollock amounts to 3,293 mt (Table 1). Approximately 6 
percent of the U.S. ABC is used to account for anticipated state-waters 
catch (200 mt), 6 percent accounts for anticipated pollock catch by 
non-groundfish fisheries (other sub-components), and the remaining 
2,893 mt is allocated to the groundfish fishery (3,293 - 200 - 200 = 
2,893 mt). To account for management uncertainty, this amount was 
reduced by 5 percent (144 mt) from 2,893 mt,, resulting in a groundfish 
sub-ACL of 2,748 mt (2,893 - 144 = 2,748 mt) (Table 3).
    Several components of the FW 44 ABCs are notable, because they are 
atypical. For example, an allocation of yellowtail flounder to the 
scallop fishery is proposed in recognition of the importance of 
yellowtail flounder to the prosecution of the scallop fishery. For FY 
2010, the scallop fishery would be allocated 100 percent of the 
estimated yellowtail flounder (for GB and CC/GOM stocks) that is 
associated with the projected scallop catch in FY 2010, although this 
allocation is not a ``hard'' TAC. For FY 2011 and 2012, NMFS proposes 
in FW 44 to allocate to the scallop fishery 90 percent of the 
yellowtail flounder the scallop fishery is projected to catch (Table 
2). Allocating to the scallop fishery only 90 percent of the yellowtail 
flounder that the fishery is expected to catch is intended to 
incentivize the scallop fishermen to reduce its bycatch of yellowtail 
flounder.
    At the January 27, 2010 Council meeting, the Council is expected to 
review and possibly reconsider Framework Adjustment 21 (FW 21) to the 
Atlantic Sea Scallop FMP (FW 21), which includes measures that 
determine the amount of scallops that would be caught during FY 2010. 
Because the FW 44 yellowtail flounder allocation to the scallop fishery 
is based on the amount of projected scallop harvest, a modification to 
FW 21 could affect the proposed FW 44 allocation of yellowtail flounder 
to both the scallop and the NE multispecies fisheries. The outcome of 
the Council's January 2010, review of FW 21 is unknown at the time this 
document was going to publication. However, even if the yellowtail 
flounder allocations are not changed in FW 44, a modification of the 
scallop management program could change the impacts of the yellowtail 
flounder allocations, such that they are different than analyzed in the 
FW 44 EA.
    The FW 44 EA contains a brief discussion of the potential effects 
on the environment, including the human environment, of modifying the 
scallop management program. If necessary, the FW 44 EA will be revised 
by including supplemental analyses, and the FW 44 final rule would 
reflect the revised specifications. For FY 2010, a change in the 
Scallop FMP that would allow additional scallop effort, and a 
recommendation for a larger allocation of yellowtail flounder, would 
result in increased revenue to the scallop fishery

[[Page 5020]]

due to the additional yellowtail landed by scallop vessels. Conversely, 
with respect to the groundfish fishery, allocating additional 
yellowtail flounder to the scallop fleet would result in lost revenue 
for the NE multispecies fishery. Based on FW 21 information, the total 
amount of GB and SNE/MA yellowtail flounder allocated to the scallop 
fishery could be up to 146 mt and 135 mt, respectively. These amounts 
would increase, by 36 mt and 24 mt for GB and SNE/MA yellowtail, 
respectively the currently proposed allocations to the scallop fishery. 
The EA estimates that the value of each metric ton of yellowtail 
flounder to the NE multispecies fishery ranges from a low of $3,296 to 
a high of $41,176. Further, the specified allocations of yellowtail 
flounder for the scallop fishery may be revised for FY 2011 or 2012, 
based on updated scallop and yellowtail flounder stock information, or 
on future scallop fishery access area measures.
    No specific allocation of CC/GOM yellowtail flounder would be made 
to the scallop fishery because the incidental catches of this stock by 
the scallop fishery are relatively low. Catches of this stock will be 
considered part of the ``other sub-component'' of the ACL.
    The FY 2010 yellowtail flounder allocations to the scallop fishery 
are characterized as ACL sub-components (no short-term associated AMs), 
and the FY 2011 and 2012 allocations are characterized as sub-ACLs. 
Under the current Atlantic Sea Scallop FMP, if the scallop fishery 
harvests in excess of the yellowtail flounder sub-components specified 
for the fishery for FY 2010 (110 mt and 111 mt for GB and SNE/MA, 
respectively), no scallop management measures will be triggered. The 
Council has decided to develop AMs for the Atlantic Sea Scallop FMP 
that would be responsive to yellowtail flounder catches in excess of 
the sub-ACL, beginning in FY 2011. The precise mechanism and scope of 
future scallop AMs, is unknown. Current regulations set a cap on the 
amount of yellowtail flounder that may be harvested from the scallop 
access areas from the SNE/MA and GB yellowtail flounder stock areas. 
Specifically, current regulations cap yellowtail flounder harvest from 
scallop access areas at 10 percent of the ``total TAC'' for each of the 
stock areas. In light of the proposed ACL components, ``total TAC'' 
means ``total ACL'', i.e., 10 percent of 1,169 mt (117 mt) and 468 mt 
(47 mt) for FY 2010 for GB and SNE/MA yellowtail flounder, respectively 
(see Table 3).
    Under this action, the mid-water trawl fishery would be allocated 
0.2 percent of the U.S. ABC for GB and GOM haddock. The values for the 
allocations to the mid-water trawl fishery listed in Table 2 are 
slightly less than 0.2 percent, due to the 7 percent reduction of these 
allocations to account for management uncertainty for this stock. To 
determine the mid-water trawl fishery's allocation of GB haddock, 
therefore, the ABC of 44,903 mt was multiplied by 0.002, and then 
reduced by 6.3 mt (44,903 mt X .002 = 89.8 mt; 89.8 mt -6.3 mt = 83.5 
mt). For GOM haddock, the ABC of 1,265 mt was multiplied by 0.002, and 
then reduced by 0.18 (1,265 mt X .002 = 2.53 mt; 2.53 mt -0.18 mt = 2.4 
mt). All the haddock allocations to the mid-water trawl fishery are 
characterized as sub-ACLs (associated with AMs, as explained below). A 
percentage of the U.S. ABC for GOM haddock and GOM cod would be 
allocated to the recreational fishery, based on a split of ABC among 
commercial and recreational components of the fishery (72.5 percent and 
27.5 percent for haddock; 66.3 percent and 33.7 percent for cod, 
respectively)(Table 2). All the recreational allocations to the 
groundfish fishery are characterized as sub-ACLs.

 Table 2--Allocations to the Scallop Fishery, Mid-Water Trawl Fishery, and Recreational Groundfish Fishery (mt)
----------------------------------------------------------------------------------------------------------------
                                                                 FY 2010           FY 2011           FY 2012
----------------------------------------------------------------------------------------------------------------
                                                 Scallop Fishery
----------------------------------------------------------------------------------------------------------------
Yellowtail flounder stock:
    GB....................................................               110               197               308
    SNE/MA................................................               111                80               126
----------------------------------------------------------------------------------------------------------------
                                             Mid-Water Trawl Fishery
----------------------------------------------------------------------------------------------------------------
Haddock stock:
    GB....................................................                84                87                74
    GOM...................................................                 2                 2                 2
----------------------------------------------------------------------------------------------------------------
                                         Recreational Groundfish Fishery
----------------------------------------------------------------------------------------------------------------
GOM stock:
    GOM cod...............................................             2,673             2,824             2,826
    GOM haddock...........................................               324               308               259
----------------------------------------------------------------------------------------------------------------

    For most stocks the percentage of the ABC deducted for anticipated 
catch from state waters is between 1 and 10 percent, with the exception 
of Atlantic halibut and GOM winter flounder, for which 50 percent and 
35 percent, respectively, are deducted from the ABC.
    Amendment 16 would implement a system in which a sub-ACL has an AM 
that would be triggered if the catch exceeds the specified amount. In 
contrast, an ACL-subcomponent does not have an automatic short-term AM 
that is triggered if the catch exceeds the specified amount, although 
there would be accountability through the evaluation of the catch of 
all sub-components during the next biennial adjustment to determine if 
the size of the ACL-subcomponents needs to be adjusted for subsequent 
fishing years. However, if the total catch exceeds the total ACL, AMs 
would be triggered, as explained in detail in the Amendment 16 proposed 
rule. Tables 3, 4, and 5 contain the total ACLs, sub-ACLs, and ACL-
subcomponents for FY 2010, 2011, and 2012, respectively (with the 
exception of the scallop and mid-water trawl components in Table 2). 
The sector sub-ACLs for five stocks are zero, because no

[[Page 5021]]

possession of these stocks is allowed for either common-pool or sector 
vessels.

                                         Table 3--Total ACLs, Sub-ACLs, and ACL-Subcomponents for FY 2010 (mt) *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Preliminary                    State waters
                          Stock                              Total ACL    Groundfish sub-   common-pool     Preliminary        ACL-         Other ACL-
                                                                                ACL           sub-ACL     sector sub-ACL   subcomponent    subcomponents
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod..................................................           3,620           3,430             174           3,256              38             152
GOM cod.................................................           8,088           7,240             337           4,230             566             283
GB hadk.................................................          42,768          40,440           1,127          39,313             449           1,796
GOM hadk................................................           1,197           1,149              39             786               9              37
GB ytail................................................           1,169             999              65             934               0              60
SNE ytail...............................................             468             322              91             241               5              20
CC ytail................................................             822             779              52             727               9              35
Plaice..................................................           3,006           2,848             184           2,665              32             126
Witch...................................................             899             852              42             810               9              38
GB winter...............................................           1,955           1,852              55           1,797               0             103
GOM winter..............................................             230             158              26             132              60              12
SNE winter..............................................             605             520             520               0              53              32
Redfish.................................................           7,226           6,848             234           6,613              76             303
White hake..............................................           2,697           2,566             121           2,435              28             113
Pollock.................................................           3,148           2,748             118           2,630             200             200
N. window...............................................             161             110             110               0               2              49
S. window...............................................             225             154             154               0               2              69
Ocean pout..............................................             253             239             239               0               3              11
Halibut.................................................              69              30              30               0              36               4
Wolffish................................................              77              73              73               0               1               3
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Table 2 for allocations to scallop, mid-water trawl, and recreational fisheries.


                                         Table 4--Total ACLs, Sub-ACLs, and ACL-Subcomponents for FY 2011 (mt) *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Preliminary                    State waters
                          Stock                              Total ACL    Groundfish sub-   common-pool     Preliminary        ACL-         Other ACL-
                                                                                ACL           sub-ACL     sector sub-ACL   subcomponent    subcomponents
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod..................................................           5,349           5,068             257           4,812              56             225
GOM cod.................................................           8,545           7,649             356           4,469             597             299
GB hadk.................................................          44,560          42,134           1,174          40,959             468           1,871
GOM hadk................................................           1,141           1,095              37             749               9              35
GB ytail................................................           1,050             799              52             747               0              54
SNE ytail...............................................             641             527             144             383               7              27
CC ytail................................................             992             940              63             867              10              42
Plaice..................................................           3,280           3,108             200           2,908              34             138
Witch...................................................           1,304           1,236              61           1,174              14              55
GB winter...............................................           2,118           2,007              60           1,948               0             111
GOM winter..............................................             230             158              26             132              60              12
SNE winter..............................................             842             726             726               0              72              45
Redfish.................................................           7,959           7,541             257           7,284              84             334
White hake..............................................           3,138           2,566             141           2,833              33             132
Pollock.................................................           3,148           2,974             118           2,630             200             200
N. window...............................................             161             110             110               0               2              49
S. window...............................................             225             154             154               0               2              69
Ocean pout..............................................             253             239             239               0               3              11
Halibut.................................................              76              33              33               0              39               4
Wolffish................................................              77              73              73               0               1               3
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Table 2 for allocations to scallop, mid-water trawl and recreational fisheries.


                                         Table 5--Total ACLs, Sub-ACLs, and ACL-Subcomponents for FY 2012 (mt) *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Preliminary                    State waters
                          Stock                              Total ACL    Groundfish sub-   common-pool     Preliminary        ACL-         Other ACL-
                                                                                ACL           sub-ACL     sector sub-ACL   subcomponent    subcomponents
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod..................................................           5,919           5,608             284           5,324              62             249
GOM cod.................................................           8,551           7,654             356           4,472             598             299
GB hadk.................................................          37,952          35,885           1,000          34,885             398           1,594
GOM hadk................................................             959             920              31             630               7              29
GB ytail................................................           1,191             822              53             769               0              61
SNE ytail...............................................             936             760             208             552              10              40
CC ytail................................................           1,104           1,046              70             976              12              46
Plaice..................................................           3,459           3,278             211           3,067              36             145
Witch...................................................           1,561           1,479              73           1,406              16              66
GB winter...............................................           2,422           2,295              68           2,227               0             127

[[Page 5022]]

 
GOM winter..............................................             230             158              26             132              60              12
SNE winter..............................................           1,125             969             969               0              96              60
Redfish.................................................           8,786           8,325             284           8,041              92             369
White hake..............................................           3,465           3,283             156           3,128              36             146
Pollock.................................................           3,148           2,748             118           2,630             200             200
N. window...............................................             161             110             110               0               2              49
S. window...............................................             225             154             154               0               2              69
Ocean pout..............................................             253             239             239               0               3              11
Halibut.................................................              83              36              36               0              43               4
Wolffish................................................              77              73              73               0               1               3
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Table 2 for allocations to scallop, mid-water trawl, and recreational fisheries.

3. Revisions to Incidental Catch TACs and Allocations to Special 
Management Programs

    This proposed rule specifies incidental catch TACs applicable to 
the NE multispecies Special Management Programs for FY 2010-2012, based 
on the proposed ACLs and the FMP. Incidental catch TACs are specified 
for certain stocks of concern for common pool vessels fishing in the 
Special Management Programs, in order to limit the amount of catch of 
stocks of concern that can be caught under such programs. A stock of 
concern is defined as a stock that is in an overfished condition or 
subject to overfishing. The Incidental Catch TACs proposed below are 
consistent with the proposed Amendment 16 changes to the allocation of 
incidental catch TACs among Special Management Programs. Pursuant to 
Amendment 16, new incidental catch TACs are required for GOM winter 
flounder and pollock, because they are now considered stocks of 
concern. Although American plaice is technically no longer a stock of 
concern, Amendment 16 retains the incidental catch TAC for this stock 
because the stock is far from rebuilt. The incidental catch TACs apply 
to catch (landings and discards) caught under Category B DAS (either 
Regular or Reserve B DAS) on trips that end on a Category B DAS. The 
catch of stocks for which incidental catch TACs are specified on trips 
that start under a Category B DAS and then flip to a Category A DAS do 
not accrue toward such TACs. Due to the need to re-specify the U.S. ABC 
for GB cod, as described above, the incidental catch TAC for GB cod 
will be re-specified for FY 2011 and 2012, when information on the 
Canadian TACs are available. The incidental catch TACs by stock based 
on the common pool sub-ACL are shown in Table 6 below.

                          Table 6--Incidental Catch TACs by Stock for FY 2010-2012 (mt)
----------------------------------------------------------------------------------------------------------------
                                      Percentage of sub-  2010 incidental    2011 incidental    2012 incidental
                Stock                        ACL             catch TAC          catch TAC          catch TAC
----------------------------------------------------------------------------------------------------------------
GB cod..............................                  2                3.5                5.1                5.7
GOM cod.............................                  1                3.4                3.6                3.6
GB yellowtail.......................                  2                1.3                1.0                1.1
CC/GOM yellowtail...................                  1                0.5                0.6                0.7
SNE/MA yellowtail...................                  1                0.9                1.4                2.1
Plaice..............................                  5                9.2               10.0               10.6
Witch flounder......................                  5                2.1                3.1                3.7
SNE/MA winter flounder..............                  1                5.2                7.3                9.7
GB winter...........................                  2                1.1                1.2                1.4
White hake..........................                  2                2.4                2.8                3.1
Pollock.............................                  2                2.4                2.4                2.4
----------------------------------------------------------------------------------------------------------------


                 Table 7--Allocation of Incidental Catch TACs Among Special Management Programs
----------------------------------------------------------------------------------------------------------------
                                                                                   Closed area I   Eastern U.S./
                              Stock                                Regular B DAS     hook gear    Canada haddock
                                                                     program %     haddock SAP %       SAP %
----------------------------------------------------------------------------------------------------------------
GB cod..........................................................              50              16              34
GOM cod.........................................................             100              na              na
GB yellowtail...................................................              50              na              50
CC/GOM yellowtail...............................................             100              na              na
SNE/MA yellowtail...............................................             100              na              na
Plaice..........................................................             100              na              na
Witch flounder..................................................             100              na              na
SNE/MA winter flounder..........................................             100              na              na
GB winter.......................................................              50              na              50
White hake......................................................             100              na              na
Pollock.........................................................              50              16              34
----------------------------------------------------------------------------------------------------------------


[[Page 5023]]


                              Table 8--Incidental Catch TACs for Special Management Programs by Stock for FY 2010-2012 (mt)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                             Stock                                  Regular B DAS program        Closed area I hook gear     Eastern U.S./Canada haddock
---------------------------------------------------------------------------------------------          haddock SAP                       SAP
                                                                                             -----------------------------------------------------------
                                                                  2010      2011      2012      2010      2011      2012      2010      2011      2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod........................................................       1.7       2.6       2.8       0.6       0.8       0.9       1.2       1.7       1.9
GOM cod.......................................................       3.4       3.6       3.6  ........  ........  ........  ........  ........  ........
GB yellowtail.................................................       0.6       0.5       0.5  ........  ........  ........       0.6       0.5       0.5
CC/GOM yellowtail.............................................       0.5       0.6       0.7  ........  ........  ........  ........  ........  ........
SNE/MA yellowtail.............................................       0.9       1.4       2.1  ........  ........  ........  ........  ........  ........
Plaice........................................................       9.2      10.0      10.6  ........  ........  ........  ........  ........  ........
Witch flounder................................................       2.1       3.1       3.7  ........  ........  ........  ........  ........  ........
SNE/MA winter flounder........................................       1.1       1.2       1.4  ........  ........  ........  ........  ........  ........
GB winter.....................................................       1.2       1.4       1.6  ........  ........  ........       1.2       1.4       1.6
White hake....................................................       5.2       7.3       9.7  ........  ........  ........  ........  ........  ........
Pollock.......................................................       1.2       1.2       1.2       0.4       0.4       0.4       0.8       0.8       0.8
--------------------------------------------------------------------------------------------------------------------------------------------------------

6. Annual Specifications for U.S./Canada Management Area

    The FMP specifies a procedure for setting annual hard TAC levels 
(i.e., the fishery or area closes when a TAC is reached) for Eastern GB 
cod, Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada 
Management Area. The regulations governing the annual development of 
TACs were authorized by Amendment 13 to the FMP in order to be 
consistent with the U.S./Canada Resource Sharing Understanding 
(Understanding), which is an informal understanding between the 
Northeast Region of NMFS and the Maritimes Region of the Department of 
Fisheries and Ocean of Canada (DFO) that outlines a process for the 
management of the shared GB groundfish resources. The Understanding 
specifies an allocation of TAC for these three stocks for each country, 
based on a formula that considers historical catch percentages and 
current resource distribution.
    Annual TACs are determined through a process involving the Council, 
the Transboundary Management Guidance Committee (TMGC), and the U.S./
Canada Transboundary Resources Steering Committee. In September 2009, 
the TMGC approved the 2009 Guidance Document for Eastern GB cod and 
Eastern GB haddock, which included recommended U.S. TACs for these 
stocks. Although the TMGC also approved the Guidance Document for GB 
yellowtail flounder, the TMGC was not able to agree on a shared TAC for 
GB yellowtail flounder.
    The U.S. delegation proposed 1,500 mt for the shared GB yellowtail 
flounder TAC, based on the SSC recommendation. The Canadians supported 
a larger shared TAC of 2,700 m. Due to the Magnuson-Stevens Act and FMP 
rebuilding plan for GB yellowtail flounder, the United States was 
constrained to the lower level it proposed, and the TMGC was unable to 
reach a consensus on an appropriate shared catch for GB yellowtail, and 
acknowledged this lack of consensus.
    The recommended FY 2010 TACs were based on the most recent stock 
assessments (TRAC Status Reports for 2009), and the fishing mortality 
strategy shared by NMFS, the Department of Fisheries and DFO. The 
shared strategy has two parts: (1) To maintain a low to neutral (less 
than 50-percent) risk of exceeding the F limit reference (Fref = 0.18, 
0.26, and 0.25 for cod, haddock, and yellowtail flounder, 
respectively); and (2) when stock conditions are poor, F should be 
further reduced to promote rebuilding.
    The TMGC concluded that the most appropriate combined U.S./Canada 
TAC for Eastern GB cod for FY 2010 is 1,350 mt. A 2010 TAC of 1,350 mt 
corresponds to the average of the pertinent two models for a neutral 
(50-percent) risk of biomass decline. This corresponds to a low risk 
(less than 25-percent) or neutral risk (50-percent) of exceeding the 
Fref of 0.18 (i.e., Fmsy) in FY 2010. The annual allocation shares 
between countries for FY 2010 are based on a combination of historical 
catches (10 percent weighting) and resource distribution based on trawl 
surveys (90 percent weighting). Combining these factors entitles the 
United States to 25 percent of the shared TAC and Canada to 75-percent, 
resulting in a quota of 338 mt for the United States and 1,012 mt for 
Canada.
    For Eastern GB haddock, the TMGC concluded that the most 
appropriate combined U.S./Canada TAC for FY 2010 is 29,600 mt. While 
this technically corresponds to the risk-neutral level (of exceeding F 
ref of 0.26), which assumes the entire TAC will be caught in FY 2009, 
realistically, it represents a low to neutral risk level, because the 
anticipated catch in FY 2009 will likely be less than the TAC. The 
annual allocation share recommendations between countries for FY 2010 
are based on a combination of historical catches (10-percent weighting) 
and resource distribution based on trawl surveys (90-percent 
weighting). Combining these factors results in recommended allocations 
of 40.5 percent of the shared TAC to the United States, and 59.5 
percent to Canada, or a quota of 11,988 mt for the U.S. and 17,612 mt 
for Canada.
    On September 23, 2009, the Council approved, consistent with the 
2009 Guidance Document, the following U.S. TACs recommended by the 
TMGC: 338 mt of Eastern GB cod and 11,988 mt of Eastern GB haddock. The 
Council recommended a U.S. TAC of 1,200 mt for GB yellowtail, based 
upon the SSC recommendation of 1,500 mt, minus the anticipated Canadian 
catch, estimated at 300 mt. The 300 mt is approximately the 3-year 
average of Canadian catch (2008, 2007, 2006; 151 mt, 132 mt, 590 mt, 
respectively), based upon TMGC information. The FY 2010 TACs for the 
U.S./Canada Management Area represent substantial decreases for cod (36 
percent) and yellowtail flounder (43 percent), and an increase for 
haddock, compared to the FY 2009 TACs for those species. The final GB 
yellowtail flounder sub-ACL proposed for the groundfish fishery (999 
mt; Table 3) is lower than the 1,200-mt U.S. TAC, as discussed above, 
due to the allocation to the scallop fishery and consideration of 
management uncertainty.

[[Page 5024]]



                            Table 9--2010 U.S./Canada TACs (mt) and Percentage Shares
                                                [In parentheses]
----------------------------------------------------------------------------------------------------------------
                                                                                Eastern GB      * GB Yellowtail
                                                           Eastern GB Cod        Haddock            Flounder
----------------------------------------------------------------------------------------------------------------
Total Shared TAC.......................................              1,350             29,600              1,500
U.S. TAC...............................................          338 (25%)     11,988 (40.5%)              1,200
Canada TAC.............................................        1,012 (75%)     17,612 (59.5%)                 na
----------------------------------------------------------------------------------------------------------------
* Developed unilaterally by the Council.

    The regulations related to the Understanding, promulgated by the 
final rule implementing Amendment 13, state that ``any overages of the 
GB cod, haddock, or yellowtail flounder TACs that occur in a given 
fishing year will be subtracted from the respective TAC in the 
following fishing year.'' Therefore, if an analysis of the catch of the 
shared stocks by U.S. vessels indicates that an over-harvest occurred 
during FY 2009, the pertinent components of the ACL would be adjusted 
downward in order to be consistent with the FMP and Understanding 
(including the scallop ACL-subcomponent for GB yellowtail flounder). 
Although it is very unlikely, it is possible that a very large over-
harvest could result in an adjusted TAC of zero. If an adjustment to 
one of the FY 2010 TACs of cod, haddock, or yellowtail flounder is 
necessary, it will be done consistent with the Administrative Procedure 
Act and the fishing industry will also be notified.

7. U.S./Canada Management Area Initial Measures for FY 2010.

    NMFS also proposes to implement, in conjunction with FW 44, and 
using existing authority granted to the Regional Administrator under 
the FMP, measures to optimize the harvest of the transboundary stocks 
managed under the Understanding . The regulations in 50 CFR 
648.85(a)(3)(iv)(D) provide the RA the authority to implement inseason 
adjustments to various measures in order to prevent over-harvesting, or 
to facilitate achieving the TAC.
    Although this measure is not included in FW 44, pursuant to the 
authority cited above, the Council in November 2009 voted to direct the 
RA to postpone the opening of the Eastern U.S./Canada Area for both 
sector and non-sector vessels fishing with trawl gear in FY 2010 from 
May 1, 2010 to August 1, 2010. Therefore, this action proposes such a 
delay. The objective of this measure is to prevent trawl fishing in the 
Eastern U.S./Canada Area during the time period when cod bycatch is 
likely to be very high, and to prolong access to this area in order to 
maximize the catch of available cod, haddock, and yellowtail flounder. 
To further constrain fishing mortality on GB cod, NMFS proposes that, 
in a manner similar to FYs 2008 and 2009, common pool vessels fishing 
with non-trawl gear in the Eastern U.S./Canada Area prior to August 1, 
2010, be limited to a cod catch of 5 percent of the Eastern GB cod TAC, 
or 16.9 mt of cod. This measure was successful in FYs 2008 and 2009 in 
slowing the annual catch rate of cod during the early part of the year.
    Second, NMFS is proposing to implement, in conjunction with FW 44, 
a possession limit of 2,500 lb (1,125 kg) per trip for GB yellowtail 
flounder for common pool vessels to prevent the common pool sub-ACL 
from being exceeded. Although the proposed Amendment 16 regulations 
would not implement any default initial possession limit for GB 
yellowtail flounder (i.e., unlimited at the start of the fishing year), 
NMFS is proposing this initial possession limit under its existing 
authority, in order to moderate catch to ensure fishing limits are not 
exceeding allow harvesting of the sub-ACL by the common pool, and 
decrease the likelihood that further restrictions during the FY would 
be needed to slow the catch. This possession limit is based on a 
recommendation of the Council's Groundfish Plan Development Team for a 
low GB yellowtail flounder trip limit, as well as a projected catch 
analysis for FY 2010, using current information on vessels that will 
fish in the common pool in FY 2010. If necessary, NMFS may modify this 
proposed trip limit based upon new information regarding the vessel 
composition of the common pool, or revised analytical assumptions.

8. Special Management Program Status for FY 2010

    The Regional Administrator has existing authority to allocate trips 
into the Closed Area (CA) II Yellowtail Flounder SAP and, for other 
special management programs (Regular B DAS Program; CA I Hook Gear 
Haddock SAP; and Eastern U.S./Canada Haddock SAP), h