Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Annual Catch Limits and Accountability Measures, 35578-35618 [2011-14141]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 117 (Friday, June 17, 2011)]
[Proposed Rules]
[Pages 35578-35618]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14141]



[[Page 35577]]

Vol. 76

Friday,

No. 117

June 17, 2011

Part III





Department of Commerce





-----------------------------------------------------------------------





 National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Part 648





 Magnuson-Stevens Fishery Conservation and Management Act Provisions; 
Fisheries of the Northeastern United States; Annual Catch Limits and 
Accountability Measures; Proposed Rule

Federal Register / Vol. 76 , No. 117 / Friday, June 17, 2011 / 
Proposed Rules

[[Page 35578]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100902424-1290-02]
RIN 0648-BA23


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Annual Catch 
Limits and Accountability Measures

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes to implement an Omnibus Amendment to all Mid-
Atlantic Fishery Management Council (Council) fishery management plans 
(FMPs) in order to bring all Council FMPs into compliance with the 
requirements of the Magnuson-Stevens Act (MSA), as amended by the 
Magnuson-Stevens Fishery Conservation and Management Reauthorization 
Act of 2006 (MSRA), which requires establishment of Annual Catch Limits 
(ACLs) and Accountability Measures (AMs) for stocks not subject to the 
annual life cycle or other exemptions. There are multiple intended 
effects of the Omnibus Amendment: To establish a comprehensive 
framework for all Council FMPs that is compliant with the MSA 
requirements and consistent with the National Standard 1 guidelines 
issued by NMFS; to implement a process that more formally utilizes 
scientific recommendations in the establishment of annual catch levels; 
to establish a framework to derive ACLs with AM backstops from that 
scientific advice; and to establish processes for revisiting and 
modifying the measures that would be established by the respective FMP 
amendments so that overfishing is prevented, stocks are rebuilt as 
needed, and Optimum Yield (OY) may be achieved for all managed stocks 
under the Council's jurisdiction.

DATES: Comments must be received on or before July 18, 2011.

ADDRESSES: You may submit comments, identified by RIN 0648-BA23, by any 
one 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 and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on Mid-Atlantic ACL/AM Omnibus Amendment Proposed Rule.''
    Instructions: All comments received are a 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.
    Copies of the draft Omnibus Amendment document, including the 
Environmental Assessment and Regulatory Impact Review (EA/RIR) and 
other supporting documents for the Omnibus Amendment are available from 
Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 North State Street, Dover, DE 19901. 
The draft Omnibus Amendment, as submitted to NMFS by the Council, is 
also accessible via the Internet at https://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION:

Background

    Congress passed the MSRA in 2006, which was signed into law on 
January 12, 2007. The MSRA amended the MSA to include new requirements 
for ACLs and AMs (16 U.S.C. 1853 section 303(a)(15)) and the formal 
incorporation of scientific advice provided to Regional Fishery 
Management Councils (RFMCs) from their respective Scientific and 
Statistical Committees (SSCs) in the establishment of catch levels ((16 
U.S.C. 1853 section 302(1)(g)(B)). The inclusion of these new 
components in the MSA was intended to ensure stock rebuilding, as 
needed, for stocks subject to overfishing and to ensure all other fish 
stocks would not become overfished.
    National Standard 1 (NS1) of the MSA requires that conservation and 
management measures ``shall prevent overfishing, while achieving, on a 
continuing basis, the optimum yield (OY) from each fishery * * *''. NS1 
guidelines prepared by NMFS provide definitions and descriptive 
frameworks for how RFMCs should use Acceptable Biological Catch (ABC) 
recommendations from their SSCs and how to develop and utilize ACL and 
AM measures now required under the MSA.
    To respond to the MSA requirements and NS1 guidelines, the Council 
decided to amend the Atlantic Mackerel, Squids, and Butterfish; 
Atlantic Bluefish; Spiny Dogfish; Summer Flounder, Scup, and Black Sea 
Bass; the Surfclam and Ocean Quahog; and the Tilefish FMPs in a single, 
comprehensive action. The Omnibus Amendment development process was 
envisioned from the onset as a multiple year project given amount of 
work necessary to develop ABC control rules, ACLs, AMs. The Council 
conducted public scoping and developed the Omnibus Amendment over the 
course of 2009 and 2010. The development process included several 
meetings of the full Council, joint meetings with the Council and 
Atlantic States Marine Fisheries Commission (Commission), meetings of 
both the Council's SSC and its scientific uncertainty subcommittee, a 
subgroup of the full SSC which was formed to develop both ABC control 
rules and approaches for addressing scientific uncertainty, the Omnibus 
Amendment Fishery Management Action Team, and four formal public 
hearings. The Council took final action in August 2010 and NMFS has 
utilized the interim time between the Council's final action to review, 
comment, and develop the draft implementing regulations contained in 
this rule.
    NMFS proposes regulations to implement the measures in the Council 
Omnibus Amendment to establish the following: ABC control rules for use 
by the SSC in recommending ABC to the Council; a risk policy for use in 
conjunction with the ABC control rules to inform the SSC of the 
Council's preferred tolerance for the risk of overfishing a stock; ACLs 
for all Council-managed stocks except Loligo and Illex squids, which 
are exempt from the ACL/AM requirements because they are not overfished 
and have annual life cycles; comprehensive AMs for all established 
ACLs; descriptions of the process to review ACL and AM performance; and 
establishment of processes for the future modification of the measures 
established through the Omnibus Amendment. The Omnibus Amendment would 
implement the outlined measures through the following specific FMP 
amendments: Amendment 13 to the Atlantic

[[Page 35579]]

Mackerel, Squids, and Butterfish FMP; Amendment 3 to the Atlantic 
Bluefish FMP; Amendment 2 to the Spiny Dogfish FMP; Amendment 15 to the 
Summer Flounder, Scup, and Black Sea Bass FMP; Amendment 16 to the 
Surfclam and Ocean Quahog FMP; and Amendment 3 to the Tilefish FMP.
    A notice of availability (NOA) for the Omnibus Amendment was 
published on May 23, 2010 (76 FR 29717). As part for the Secretarial 
review process for FMP amendments, NMFS is soliciting specific feedback 
on the decision to approve, partially approve, or disapprove the 
Council's Omnibus Amendment through the NOA. Public comments are being 
solicited on the amendment through the end of the comment period on 
July 22, 2011. In addition, NMFS is proposing through this rule, 
specific measures to implement the Omnibus Amendment and soliciting 
public input on those specific measures designed to implement the 
Omnibus Amendment, should it be fully approved by NMFS. Public comments 
on the proposed rule must be received by the end of the comment period 
on the amendment, as published in the NOA, to be considered in the 
decision to approve or disapprove the amendment. All comments received 
by the end of the comment period on the amendment, whether specifically 
directed to the amendment or this proposed rule, will be considered in 
the approval/disapproval decision. Comments received after that date 
will not be considered in the approval/disapproval decision on the 
amendment, but may be considered in the development of the final rule. 
To be considered, comments must be received by close of business on the 
last day of the comment period; that does not mean postmarked or 
otherwise transmitted by that date.

Proposed Measures

    The remainder of this preamble is organized into sections along the 
same lines as the Council's Omnibus Amendment document: Proposed ABC 
control rules and risk policy; FMP and species-specific proposed ACLs 
and AMs; and proposed performance review and future Omnibus Amendment 
measures.

ABC Control Rules

    The Council's proposed ABC control rule framework considers the 
robustness of the overfishing level (OFL) calculation and associated 
probability distribution generated by either the stock assessment or 
the SSC. The Council has proposed four ABC control rule levels to 
address the varying amount of scientific uncertainty contained within 
the stock assessment information and approaches utilized to derive OFL. 
The control rule levels are generally organized in rank order from the 
lowest level of scientific uncertainty (i.e., most certain) to most 
uncertain and/or data poor. The proposed ABC control rules are designed 
to be used in conjunction with the Council's proposed risk policy 
described in the next section of this preamble.
    The proposed Level 1 ABC control rule represents an ideal 
assessment. In theory, a Level 1 stock assessment would likely be 
unbiased and fully consider uncertainty in the precision of estimates. 
Under the proposed Level 1 control rule, ABC would be determined by the 
SSC solely on the basis of the probability of overfishing, as informed 
by the Council's risk policy, and the probability distribution of the 
OFL.
    The proposed ABC control rule for Level 2 assessments has a higher 
degree of uncertainty than does Level 1. Level 2 assessments are 
distinguished from Level 1 in that some key features of the stock 
biology, fisheries that exploit it, or data collection methods are 
missing from the assessment and, thus, introduce some level of 
uncertainty to the assessment information. The ABC in Level 2 
assessments will be determined by the Council's risk policy, and the 
OFL probability distribution will be based on the specified 
distribution in the stock assessment.
    The proposed ABC control rule approach for Level 3 assessments is 
the same as Level 2 except that the assessment does not contain 
estimates of the OFL probability distribution or, in the opinion of the 
SSC, the assessment-provided distribution does not adequately reflect 
uncertainty in the OFL estimate. Assessments in this level are judged 
by the SSC to over- or underestimate the accuracy of the OFL, and the 
SSC would adjust the OFL distribution to develop an ABC by using the 
Council's risk policy or applying a default control rule of 75 percent 
of the fishing mortality rate (F) at maximum sustainable yield 
(FMSY) as the ABC if an acceptable OFL distribution cannot 
be developed by the SSC.
    The ABC control rule approach for Level 4 assessments, the lowest 
level of proposed categorization, does not have point estimates of OFL, 
or else the OFL distributions are not considered reliable by the SSC. 
Stocks that are highly uncertain or that fail peer review would fall 
into the Level 4 category. Stocks in Level 4 may only have a reliable 
estimate of abundance trend and catch, but may have missing or 
unreliable absolute abundance, estimates of F, and/or biological 
reference points. Stocks assigned to Level 4 would have ABC derived by 
the SSC using case-by-case approaches based on biomass, catch history, 
and the Council's risk policy.
    The Council has acknowledged that the SSC may deviate from the 
control rule framework or level criteria to recommend an ABC to the 
Council, but must provide adequate justification for so doing, 
including why the alternative approach applied is consistent with the 
best available scientific information.

Council Risk Policy

    The Council's proposed risk policy is designed to inform the SSC of 
the Council's tolerance for the risk of overfishing. The Council's 
preferred risk policy would be used in conjunction with the ABC control 
rule framework when the SSC makes ABC recommendations. When an OFL 
distribution is available and considered reliable by the SSC, the 
applicable tolerance for overfishing risk, as informed by the risk 
policy, would be selected from the distribution to derive the ABC 
recommendation.
    The Council's recommended risk policy considers whether the life 
history of the species in question is typical or atypical, as 
determined by the SSC, and uses the current stock replenishment 
threshold defined as the ratio of biomass (B)/BMSY to 
identify the probability of overfishing the stock (see Figure 1). The 
probability of overfishing would be set at zero when the B/
BMSY ratio is less than or equal to 0.10; this was 
identified by the Council as a preventative measure to ensure that 
biomass for a given stock does not fall to a very low level from which 
recovery is more difficult. It should be noted that setting the 
probability of overfishing at zero does not necessarily equate to a 
prohibition on catch or even landings. The probability of overfishing 
increases linearly from zero when the B/BMSY ratio is 0.10 
until the ratio of B/BMSY = 1.0. For all B/BMSY 
ratio values greater than or equal to 1.0, the probability of 
overfishing the stock becomes constant at 40 percent for species with a 
typical life history, and 35 percent for species with an atypical life 
history.

[[Page 35580]]

[GRAPHIC] [TIFF OMITTED] TP17JN11.000

    For stocks under a rebuilding plan, the risk policy would require 
that the probability of exceeding the rebuilding target F 
(FREBUILD) would be at least 50 percent, unless modified to 
a lesser value (i.e., a higher probability that FREBUILD 
would not be exceeded) through a stock rebuilding plan amendment. The 
Council has indicated that the SSC will be expected to forward as its 
ABC recommendation the lower ABC resulting from the two possible 
calculation methods where applying the risk policy to the rebuilding F 
probability and OFL probability approaches results in different 
potential ABCs.
    If no OFL is available from a stock assessment and no OFL proxy is 
provided by the SSC when an ABC recommendation is made, the Council's 
preferred risk policy would not permit increases in ABC until an 
acceptable OFL has been identified. This aspect of the risk policy is 
designed to prevent catch from increasing when there are no available 
criteria with which to determine whether overfishing will occur for the 
upcoming fishing year.

Annual Catch Limits and Accountability Measures

    General Information. The Council's proposed process would generally 
rely on the SSC to set ABC at or below OFL, with the reduction from OFL 
dependent on the amount of scientific uncertainty identified by the 
SSC. ACLs would be set equal to ABC for all species; however, some 
species would have sector-level ACLs for commercial and recreational 
fisheries whose sum would equal the total ABC. These sector ACLs would 
be based on pre-existing allocations in FMPs. The Council proposes 
Annual Catch Targets (ACTs) as the primary means of addressing 
management uncertainty. Council staff or species-specific monitoring 
committees would review available information and recommend to the 
Council the amount of reduction from ACL to ACT necessary to address 
management uncertainty. Where ACLs are divided into sector-specific 
ACLs, comparable sector ACTs would be utilized that address the 
associated sector-specific management uncertainties. Estimated discards 
(i.e., dead discarded catch) would be removed from ACTs to yield either 
commercial or recreational landing targets, as applicable. In summary, 
the Council's proposed structure for all FMPs is: OFL = ABC 
= ACL(s) > ACT(s), with scientific uncertainty addressed at the ABC 
level by the SSC as an offset from OFL, and management uncertainty 
addressed by the Council following recommendations from Council staff 
or species-specific monitoring committees at the ACT level as an offset 
from the ABC/ACL level.
    Many existing proactive AMs in the FMPs will be retained in the 
Council's proposed approaches. These include adjustments to commercial 
trip and/or possession limits when landings reach specified levels, and 
prohibition on retention and landing when commercial quotas are 
reached. New proactive AMs are being proposed to close recreational 
fisheries when landings data indicate that target landing levels have 
been met. The Council has clarified that recreational closures would be 
based only on ``data in hand,'' and that projection or forecasting of 
future landings would not be utilized to predict when the recreational 
target will be met or exceeded. Thus, recreational fishery closures 
would only occur if landings data indicate that the target level has 
already been met or exceeded.
    The Council has proposed that lb-for-lb repayment of any catch 
above the established ACLs to be utilized in all fisheries as the 
primary reactive AM. Because total stock mortality that must be 
accounted for under ACLs is comprised of both landings and dead 
discards (i.e., total catch), the Council has, for some species, 
proposed slightly different AMs dependent on whether discards, 
landings, or some combination of both has caused an ACL to be exceeded. 
It is expected that when changes in dead discard mortality estimates 
cause ACLs to be exceeded, subsequent year measures would both

[[Page 35581]]

evoke the lb-for-lb repayment provisions in reactive AMs and will 
result in modification of the management uncertainty buffer utilized to 
establish ACTs. The Council may consider numerous corrective actions if 
ACTs are exceeded but ACLs are not (e.g., changes to landing or 
possession limits). In addition, for most recreational sector ACLs the 
comparison of catch would use a 3-year rolling average to evaluate 
catch performance. Because the final landings and discard data for both 
commercial and recreational fisheries are not expected to be available 
in a timely enough manner to implement reactive AM measures in the 
fishing year immediately following an ACL overage, it is expected that 
the lb-for-lb repayment would occur 1 year removed from when the ACL 
was exceeded (i.e., fishing year +1). Adjustments for ACL overages 
would be handled through the Council's specification processes and 
would not be evoked during an ongoing fishing season if the information 
to determine that an ACL has been exceeded becomes available mid-
fishing year.
    Atlantic Mackerel. The Council took final action on Amendment 11 to 
the Atlantic Mackerel, Squids, and Butterfish FMP in October 2010, 
which may, among other things, establish a recreational fishery 
allocation for mackerel. The Omnibus Amendment was developed with two 
potential Atlantic mackerel options to respond to the recreational 
allocation measures being considered under Amendment 11.
    Under both Atlantic mackerel scenarios, the Council is proposing 
that ACL be set equal to ABC. The Atlantic Mackerel Monitoring 
Committee would recommend any necessary management uncertainty 
reduction required to offset ACL from either a fishery-level ACT or 
sector level ACTs, dependent on the status of Amendment 11. Estimated 
discards would be removed from the ACT or ACTs to yield the Domestic 
Annual Harvest (DAH) for the commercial fishery and either a formal 
Recreational Harvest Limit or 15,000-mt recreational allocation 
dependent on if the measures in Amendment 11 are developed and 
implemented.
    The Council is proposing a proactive AM of general inseason closure 
authority for the recreational fishery when data in hand indicate that 
the recreational target has been reached or exceeded. If a recreational 
allocation is established in Amendment 11, reactive AMs would require 
lb-for-lb repayment of ACL overages within the respective sector level: 
At the DAH for commercial landing-induced overages; at the recreational 
harvest limit, for recreational landing based overages; and at the 
respective ACT level if the overage was not the result of sector-
specific landings (i.e., dead discards, research set-asides).
    If a recreational allocation is not established by Amendment 11, or 
that component of Amendment 11 is disapproved by NMFS, all reactive 
accountability would occur at the ACL, with lb-for-lb reduction of the 
ACL in a subsequent fishing year, regardless of the cause (i.e., both 
landing and dead discard-induced overages would result in ACL 
reduction).
    Butterfish. The Council's proposed structure for the butterfish 
fishery would set ABC = ACL and use an ACT as an offset to account for 
management uncertainty. The Council's Butterfish Monitoring Committee 
would be responsible for recommending the buffer amount for management 
uncertainty between the ACL and ACT.
    Existing proactive AMs would be retained for the butterfish 
fishery. Specifically, when 80 percent of the DAH is reached, the 
directed fishery would be closed and an incidental catch limit 
implemented.
    If the ACL is exceeded, lb-for-lb repayment of the overage, 
regardless if caused by directed landings or estimated dead discards, 
would occur as soon as is practicable in a subsequent fishing year.
    Atlantic Bluefish. The Council's proposed approach for bluefish 
would establish a fishery-level ACL equal to ABC, with commercial and 
recreational sector ACTs. Existing provisions in the Bluefish FMP allow 
a transfer of catch from the recreational allocation to the commercial 
fishery; thus, the Council has proposed a fishery-level ACL. The 
Council's Bluefish Monitoring Committee would recommend the level of 
management uncertainty necessary to offset the sector ACTs from the 
ACL.
    Existing lb-for-lb repayment of individual state commercial quota 
overages would continue, irrespective of whether the ACL is exceeded. 
If the ACL is exceeded and no transfer occurred between the 
recreational and commercial sectors and the recreational fishery is 
adjudged to have caused the ACL overage, then the recreational sector 
ACT would repay the overage lb-for-lb as soon as practicable in a 
future specification setting process. If the ACL is exceeded in a year 
when a transfer does occur between sectors, the fishery-level ACL would 
be reduced by the amount of the overage in a subsequent fishing year, 
and the amount of transfer between the recreational and commercial 
sectors would also be reduced by the magnitude of the overage. These 
adjustments would deal with any landings-based overage of the ACL; if 
estimated dead discards are responsible for the ACL being exceeded, the 
fishery-level ACL would be reduced (i.e., lb-for-lb repayment) and no 
modification to the transfer between sectors would be made. Because the 
ACL for bluefish is at the fishery level, and no sub-ACL is recommended 
for the recreational fishery, the Council is not proposing a 3-year 
rolling average for assessing the performance of the bluefish fishery 
relative to the ACL. Instead, a year-by-year comparison would be used. 
In addition, because bluefish are jointly managed with the Commission, 
the Council is proposing an AM that would seek to reconvene the 
Commission's Bluefish Management Board and the Council if established 
total catch or landing levels are different for state and Federal 
waters. This provision would have to be jointly adopted by both the 
Commission and implemented in the Federal FMP to become effective. The 
intention of this provision is to ensure that catch and landing levels 
remain as consistent as practicable for both state and Federal waters.
    The Council also proposes that a multi-year specifications process 
be added to the Bluefish FMP, so that annual catch levels may be 
established for up to 3 years at a time. This would ensure that all 
Council FMPs have provisions to permit specifications to be established 
for up to 3 years at a time.
    Spiny Dogfish. The spiny dogfish stock spans both U.S. and Canadian 
waters, and the FMP requires that consideration be given to the amount 
of spiny dogfish taken in Canada. To accommodate this provision, the 
Council is proposing that the SSC recommend a stock-level ABC that 
considers stock-level scientific uncertainty necessary to reduce from 
OFL. The estimated Canadian catch would be removed from the ABC, 
resulting in the Domestic ABC, which would in turn be set equal to the 
U.S. ACL. The Council's Dogfish Monitoring Committee would recommend 
any necessary management uncertainty reduction needed to reduce catch 
from the U.S. ACL to the ACT, thus providing a low probability of 
exceeding the U.S. ACL. Estimated domestic discard mortality would be 
removed from the ACT to provide the Total Allowable Landings (TAL) for 
the commercial fishery.
    The Council does not propose changes to the existing proactive AMs 
that permit Federal trip limits to be established though the 
specifications process and mechanism to close the

[[Page 35582]]

Exclusive Economic Zone (EEZ) when semi-annual commercial landings 
quotas are reached. The Council is proposing that lb-for-lb repayment 
of any ACL overage be implemented as the sole reactive AM for the spiny 
dogfish fishery.
    Summer Flounder. The Council proposes that separate commercial and 
recreational sector ACLs be established for summer flounder, the sum of 
which would total the ABC. Sector-specific management uncertainty would 
be identified by the Summer Flounder Monitoring Committee to establish 
sector-specific ACTs below the sector ACLs. Estimated discard mortality 
and research set-aside would be removed from the ACTs to yield the 
recreational harvest limit and commercial quotas, respectively, with 
the commercial quota further subdivided into state quotas. Both sector 
and state allocations would remain unchanged from those currently 
specified in the FMP.
    Existing commercial fishery closure and state-by-state overage 
repayment provisions would remain in the FMP as AM measures. State 
commercial overage repayment would occur irrespective of whether or not 
the ACL is exceeded. The Council is proposing general inseason closure 
authority for the recreational sector, to be implemented if available 
data indicate that the recreational harvest limit has already been met 
or exceeded (i.e., data would not be used to project attainment of the 
recreational harvest limit). In instances where the sector-specific ACL 
is exceeded, the applicable ACL would be reduced through lb-for-lb 
overage repayment for a future fishing year through the specifications 
process. The recreational sector ACL would utilize a 3-year moving 
average to evaluate performance of the sector. The moving average would 
be phased in over a period of 3 years: In year one, catch (sum of 
recreational sector specific landings and dead discards) would be 
compared to the prior year catch; in year two, an average catch of 
years one and two would be used; in year three and in all subsequent 
years, the average catch from the prior three years would be used.
    Similar to other jointly-managed species, the Council proposes that 
language be adopted by the Commission and added to the Federal FMP to 
ensure that catch levels are consistent in both state and Federal 
waters to avoid differential effects on Federal permit holders.
    Scup. The proposed measures for scup would be essentially the same 
as those proposed for summer flounder, except that the commercial quota 
would be allocated into three existing quota periods instead of to 
individual states. All other provisions would function the same as 
outlined for summer flounder: Sector-specific ACLs; management 
uncertainty considerations developed by a scup-specific monitoring 
committee; and sector-specific ACTs. Commercial quota period overages 
would continue to have lb-for-lb repayment, consistent with the current 
FMP provisions, regardless of whether the sector ACL is exceeded. 
Recreational AMs would be evaluated using the same 3-year average 
approach described for summer flounder. The joint-management provisions 
between the Commission and Council also apply for scup.
    Black Sea Bass. The proposed measures for black sea bass would be 
the same as those developed for summer flounder and scup, except that 
the commercial quota would be administered on a coastwide basis for the 
fishing year, and lb-for-lb repayment of a commercial landings overage 
would also occur at the coastwide level, irrespective of whether the 
commercial-sector ACL is exceeded. All other provisions would function 
the same as outlined for summer flounder and scup.
    Atlantic Surf Clam. The Council's proposed system for surfclams 
would set ACL = ABC = Total Allowable Catch (TAC). An ACT set below TAC 
would be recommended by Council staff to address management 
uncertainty. Existing Individual Transferable Quota (ITQ) 
accountability requires lb-for-lb repayment of any permit-specific 
landing overages. This would be retained as the sole AM for the 
surfclam fishery.
    Ocean Quahog. The Council's proposed measures for ocean quahog 
would set ACL=ABC, with Council staff recommending any necessary 
management uncertainty reductions to yield separate ACTs for the Maine 
mahogany quahog fishery and the non-Maine fishery as subdivisions below 
the ACL. Similar to surf clams, 100 percent of ITQ landing overages 
that occur within the fishery are required to be repaid lb-for-lb. This 
would remain in place as the non-Maine fishery AM, regardless of 
whether the ACL is exceeded. If the ACL is exceeded and harvest in the 
Maine fishery is the cause, the Maine ACT would be adjusted in a 
following year through a bushel-for-bushel repayment of the overage.
    Tilefish. The Council has proposed that ACL = ABC for tilefish, and 
that the Tilefish Monitoring Committee would recommend any necessary 
management uncertainty reduction from ACL to ACT. An estimate of dead 
discards would be removed from the ACT to produce the Total Allowable 
Landings (TAL). The existing regulatory structure would continue to 
allocate 95 percent of the commercially available landings to the 
Individual Fishing Quota (IFQ) permit holders, and 5 percent would be 
reserved for incidental catch.
    Inseason closure authority already exists for the incidental 
category to be closed when projected landings total the specified 
category target. The Council has proposed increasing the incidental 
trip limit from 300 to 500 lb (136 to 227 kg) based on analyses 
conducted during development of the Omnibus Amendment. If the 
incidental category exceeds the 5-percent allocation in any given year, 
the incidental 500-lb (227-kg) trip limit may be reduced in subsequent 
fishing years.
    The Tilefish FMP already contains lb-for-lb landing overage 
repayment requirements for IFQ permit holders. This authority would be 
retained as the primary AM for the commercial fishery. If the 
incidental category is responsible for an ACL overage, the 5-percent 
allocation would be reduced lb-for-lb in a subsequent year, and the 
incidental category trip limit may be adjusted as well. If the ACL is 
exceeded by any other means (i.e., changes in estimated dead discard 
amounts), lb-for-lb repayment of the overage from a subsequent fishing 
year ACL would be enacted prior to any IFQ and incidental permit 
category allocation calculations.

Future Review and Modification of Omnibus Amendment Implemented 
Processes

    The Council has proposed that ABC control rules be reviewed in 
detail by the SSC 5 years after the implementation of the Omnibus 
Amendment measures and at least every 5 years thereafter. Reviews can 
occur more frequently than 5 years, based on the need to address 
rebuilding plans, overfished stocks, poor control rule performance 
resulting in overfishing, or other relevant factors. The Council 
specified that the process to change any ABC control rules would be 
consistent with the magnitude of the potential changes: For example, 
minor changes within the existing four levels based on assessment 
levels could be developed through the Council's specification or 
framework adjustment process. Addition of new control rule levels or 
substantial modification of existing criteria within the four levels 
may require a full FMP amendment.
    The Council has proposed that ACL and AM performance reviews occur 
at least every 5 years, as well, if ACLs are

[[Page 35583]]

not routinely exceeded. Consistent with the NS1 guidelines, if the ACL 
is exceeded for any species with a frequency greater than 25 percent of 
the time (i.e., more than 1 in 4 years, or in any 2 consecutive years), 
the Council has proposed to initiate a review of the ACL, ACT, and AM 
approaches used.
    The Council has included in the Omnibus Amendment a comprehensive 
listing of items that may be modified through specification or a 
framework adjustment in an effort to preserve a responsive, adaptive 
process. The limits to modifications of the ABC control rules, risk 
policy, ACT control rules, AMs, and actions that may be taken under 
each FMP are provided. In addition, several items are identified that 
can only be modified through framework adjustment or FMP amendment.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the Atlantic Mackerel, Squids; and Butterfish FMP; Atlantic Bluefish 
FMP; Spiny Dogfish FMP; Summer Flounder, Scup, and Black Sea Bass FMP; 
Surfclam and Ocean Quahog FMP; and Tilefish FMP; other provisions of 
the MSA; and other applicable law, subject to further consideration 
after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    As outlined in the preamble to this proposed rule, the Omnibus 
Amendment proposes multiple descriptive processes for Council-managed 
resources: To implement methods of establishing ABC through control 
rules; establishment of a Council risk policy for the tolerance of 
overfishing stocks, a required element of ABC control rules; to 
establish as framework for specifying ACLs derived from ABC with a 
comprehensive system of AMs; and to provide a description of the future 
evaluation and modification processes for the ABC control rules, 
Council risk policy, ACLs, and AMs. The Council conducted a 
comprehensive evaluation of the potential socioeconomic impacts of the 
Omnibus Amendment measures in conjunction with the EA analyses. The 
formal procedures for addressing both scientific and management 
uncertainty in the catch limit establishment system proposed by the 
Omnibus Amendment are administrative, as they are entirely a 
description of process. While the Omnibus Amendment provides detailed 
descriptions of the frameworks for how scientific and management 
uncertainty will be considered, as well as how ACLs and AMs would 
function, the action contains no actual application of the methods to 
set ABC, apply the risk policy, or establish specific ACLs or AMs for 
any of the Council's FMPs. As a result, there are no immediate economic 
impacts to evaluate. Populating the proposed framework with data, which 
would result in the establishment of catch levels with measurable 
impacts, will occur in future actions. As the systems proposed by the 
Omnibus Amendment are utilized in future actions, the specific impacts 
resulting from the application of the systems will be evaluated through 
the Council's specification processes for each FMP.
    The Council-conducted analyses identified 3,911 unique fishing 
entities in the Northeast Region, all but 6 of which were determined to 
be small entities. However, given the administrative aspects of the 
proposed measures, there are neither expected direct economic or 
disproportionate impacts to either small or large regulated entities 
given the aforementioned description of the administrative processes 
proposed by the Omnibus Amendment. As a result, an initial regulatory 
flexibility analysis is not required and none has been prepared. RFA 
analysis will be conducted, as appropriate, for subsequent actions 
taken under the Omnibus Amendment established procedures.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 3, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. Section 648.14(u)(2)(vii) is added to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (u)* * *
    (2)* * *
    (vii) Land or possess tilefish in or from the Tilefish Management 
Unit, on a vessel issued a valid tilefish permit under this part, after 
the incidental fishery is closed pursuant to Sec.  648.245(b), unless 
fishing under a valid tilefish IFQ allocation permit as specified in 
Sec.  648.249(a), or engaged in recreational fishing.
* * * * *
    3. Section 648.20 is revised to read as follows:


Sec.  648.20  Mid-Atlantic Fishery Management Council ABC Control 
Rules.

    General information. The SSC shall review the following criteria, 
and any additional relevant information, to assign managed stocks to a 
specific control rule level when developing ABC recommendations. The 
SSC shall review the ABC control rule level assignment for stocks each 
time an ABC is recommended. The ABC may be recommended for up to 3 
years for all stocks, with the exception of 5 years for spiny dogfish. 
The SSC may deviate from the control rule methods or level criteria and 
recommend an ABC that differs from the result of the ABC control rule 
calculation; however, any such deviation must include the following: A 
description of why the deviation is warranted, description of the 
methods used to derive the alternative ABC, and an explanation of how 
the deviation is consistent with National Standard 2.
    (a) Level 1 criteria. (1) Assignment of a stock to Level 1 requires 
the SSC to determine the following:
    (i) All important sources of scientific uncertainty are captured in 
the stock assessment model;
    (ii) The probability distribution of the OFL is calculated within 
the stock assessment and provides an adequate description of the OFL 
uncertainty;
    (iii) The stock assessment model structure and treatment of the 
data prior to use in the model includes relevant details of the biology 
of the stock, fisheries that exploit the stock, and data collection 
methods;
    (iv) The stock assessment provides the following estimates: Fishing 
mortality rate (F) at MSY or an alternate maximum fishing mortality 
threshold (MFMT) to define OFL, biomass, biological reference points, 
stock status, OFL, and the respective uncertainties associated with 
each value; and
    (v) No substantial retrospective patterns exist in the stock 
assessment

[[Page 35584]]

estimates of fishing mortality, biomass, and recruitment.
    (2) Level 1 ABC determination. Stocks assigned to level 1 by the 
SSC will have the ABC derived by applying acceptable probability of 
overfishing from the MAFMC's risk policy found in Sec.  648.21(a) 
through (d) to the probability distribution of the OFL.
    (b) Level 2 criteria. (1) Assignment of a stock to Level 2 requires 
the SSC to determine the following:
    (i) Key features of the stock biology, the fisheries that exploit 
it, and/or the data collection methods for stock information are 
missing from the stock assessment;
    (ii) The stock assessment provides reference points (which may be 
proxies), stock status, and uncertainties associated with each; 
however, the uncertainty is not fully promulgated through the stock 
assessment model and/or some important sources of uncertainty may be 
lacking;
    (iii) The stock assessment provides estimates of the precision of 
biomass, fishing mortality, and reference points; and
    (iv) The accuracy of the minimum fishing mortality threshold and 
projected future biomass is estimated in the stock assessment using ad 
hoc methods.
    (2) Level 2 ABC determination. Stocks assigned to level 2 by the 
SSC will have the ABC derived by applying acceptable probability of 
overfishing from the MAFMC's risk policy found in Sec.  648.21(a) 
through (d) to the probability distribution of the OFL.
    (c) Level 3 criteria. (1) Assignment of a stock to Level 3 requires 
the SSC to determine that the stock assessment attributes are the same 
as those for a level 2 assessment listed in Sec.  648.20(d)(1) through 
(4), except that the stock assessment does not contain an estimated 
probability distribution of OFL or the stock assessment provided OFL 
probability distribution is judged by the SSC to not adequately reflect 
uncertainty in the OFL estimate.
    (2) Level 3 ABC determination. Stocks assigned to Level 3 will have 
ABC derived by one of the following two methods:
    (i) The SSC will derive the ABC by applying the acceptable 
probability of overfishing from the MAFMC's risk policy found in Sec.  
648.21(a) through (d) to an SSC-adjusted OFL probability distribution. 
The SSC will use default levels of uncertainty in the adjusted OFL 
probability distribution based on literature review and evaluation of 
control rule performance; or,
    (ii) If the SSC cannot develop an OFL distribution, a default 
control rule of 75 percent of the FMSY value will be applied 
to derive ABC.
    (d) Level 4 criteria. (1) Assignment of a stock to Level 4 requires 
the SSC to determine that none of the criteria for Level 1-3 found in 
Sec.  648.20(a) through (c) were met.
    (2) Level 4 ABC determination. Stocks assigned to Level 4 will have 
ABC derived using control rules developed on a case-by-case basis by 
the SSC based on biomass and catch history and application of the 
MAFMC's risk policy found in Sec.  648.21(a) through (d).
    4. Section 648.21 is revised to read as follows:


Sec.  648.21  Mid-Atlantic Fishery Management Council Risk Policy.

    The risk policy shall be used by the SSC in conjunction with the 
ABC control rules in Sec.  648.20(a) through (d) to ensure the MAFMC's 
preferred tolerance for the risk of overfishing is addressed in the ABC 
development and recommendation process.
    (a) Stocks under a rebuilding plan. The probability of not 
exceeding the F necessary to rebuild the stock within the specified 
time frame (rebuilding F or FREBUILD) must be at least 50 
percent, unless the default level is modified to a higher probability 
for not exceeding the rebuilding F through the formal stock rebuilding 
plan. A higher probability of not exceeding the rebuilding F would be 
expressed as a value greater than 50 percent (e.g., 75-percent 
probability of not exceeding rebuilding F, which corresponds to a 25-
percent probability of exceeding rebuilding F).
    (b) Stocks not subject to a rebuilding plan. (1) For stocks 
determined by the SSC to have an atypical life history, the maximum 
probability of overfishing as informed by the OFL distribution will be 
35 percent for stocks with a ratio of biomass (B) to biomass at MSY 
(BMSY) of 1.0 or higher (i.e., the stock is at 
BMSY or higher). The maximum probability of overfishing 
shall decrease linearly from the maximum value of 35 percent as the B/
BMSY ratio becomes less than 1.0 (i.e., the stock biomass 
less than BMSY) until the probability of overfishing becomes 
zero at a B/BMSY ratio of 0.10. An atypical life history is 
generally defined as one that has greater vulnerability to exploitation 
and whose characteristics have not been fully addressed through the 
stock assessment and biological reference point development process.
    (2) For stocks determined by the SSC to have a typical life 
history, the maximum probability of overfishing as informed by the OFL 
distribution will be 40 percent for stocks with a ratio of B to 
BMSY of 1.0 or higher (i.e., the stock is at BMSY 
or higher). The maximum probability of overfishing shall decrease 
linearly from the maximum value of 40 percent as the B/BMSY 
ratio becomes less than 1.0 (stock biomass less than BMSY) 
until the probability of overfishing becomes zero at a B/
BMSY ratio of 0.10. Stocks with typical life history are 
those not meeting the criteria in paragraph (b)(1) of this section.
    (c) For instances in which the application of the risk policy 
approaches in either paragraph (b)(1) or (2) of this section using OFL 
distribution, as applicable given life history determination, results 
in a more restrictive ABC recommendation than the calculation of ABC 
derived from the use of FREBUILD at the MAFMC-specified 
overfishing risk level as outlined in paragraph (a) of this section, 
the SSC shall recommend to the MAFMC the lower of the ABC values.
    (d) If an OFL cannot be determined from the stock assessment, or if 
a proxy is not provided by the SSC during the ABC recommendation 
process, ABC levels may not be increased until such time that an OFL 
has been identified.
    5. Section 648.22 is revised to read as follows:


Sec.  648.22  Specifications.

    (a) Initial recommended annual specifications. The Atlantic 
Mackerel, Squid, and Butterfish Monitoring Committee (Monitoring 
Committee) shall meet annually to develop and recommend the following 
specifications for consideration by the Squid, Mackerel, and Butterfish 
Committee of the MAFMC:
    (1) Initial OY (IOY), including Research Set-Aside (RSA), DAH, and 
DAP for Illex squid, which, subject to annual review, may be specified 
for a period of up to 3 years;
    (2) ACL; ACT including RSA, DAH, DAP; bycatch level of the TALFF, 
if any; and butterfish mortality cap for the Loligo fishery for 
butterfish; which, subject to annual review, may be specified for a 
period of up to 3 years;
    (3) ACL; commercial ACT, including RSA, DAH, DAP; JVP if any; 
TALFF, if any; and recreational ACT, including RSA for mackerel; which, 
subject to annual review, may be specified for a period of up to 3 
years. The Monitoring Committee may also recommend that certain ratios 
of TALFF, if any, for mackerel to purchases of domestic harvested fish 
and/or domestic processed fish be established in relation to the 
initial annual amounts.
    (4) IOY, including RSA, DAH, and DAP for Loligo squid, which, 
subject to annual review, may be specified for a period of up to 3 
years; and

[[Page 35585]]

    (5) Inseason adjustment, upward or downward, to the specifications 
for Loligo squid, as specified in paragraph (e) of this section.
    (b) Guidelines. As the basis for its recommendations under 
paragraph (a) of this section, the Monitoring Committee shall review 
the best available data to recommend specifications consistent with the 
following:
    (1) Loligo and/or Illex squid. (i) The ABC for any fishing year 
must be either the maximum OY, or a lower amount, if stock assessments 
indicate that the potential yield is less than the maximum OY. The OYs 
specified during a fishing year may not exceed the following amounts:
    (A) Loligo.--The catch associated with a fishing mortality rate of 
FThreshold.
    (B) Illex.--Catch associated with a fishing mortality rate of 
FMSY.
    (ii) IOY is a modification of ABC based on social and economic 
factors. The IOY is composed of RSA and DAH. RSA will be based on 
requests for research quota as described in paragraph (g) of this 
section. DAH will be set after deduction for RSA, if applicable.
    (2) Mackerel.--(i) ABC. The MAFMC's SSC shall recommend an ABC to 
the MAFMC, as described in Sec.  648.20. The mackerel ABC is reduced 
from the OFL based on an adjustment for scientific uncertainty; the ABC 
must be less than or equal to the OFL.
    (ii) ACL. The ACL or Domestic ABC is calculated using the formula 
ACL = ABC - C, where C is the estimated catch of mackerel in Canadian 
waters for the upcoming fishing year.
    (iii) OY. OY may not exceed the ACL, and must take into account the 
need to prevent overfishing while allowing the fishery to achieve OY on 
a continuing basis. OY is prescribed on the basis of MSY, as reduced by 
social, economic, and ecological factors.
    (iv) ACT. The Monitoring Committee shall identify and review 
relevant sources of management uncertainty to recommend ACTs for the 
commercial and recreational fishing sectors as part of the 
specifications process.
    (A) Commercial sector ACT. Commercial ACT is composed of RSA, DAH, 
dead discards, and TALFF. RSA will be based on requests for research 
quota as described in paragraph (g) of this section. DAH, DAP, and JVP 
will be set after deduction for RSA, if applicable, and must be 
projected by reviewing data from sources specified in paragraph (b) of 
this section and other relevant data, including past domestic landings, 
projected amounts of mackerel necessary for domestic processing and for 
joint ventures during the fishing year, projected recreational 
landings, and other data pertinent for such a projection. The JVP 
component of DAH is the portion of DAH that domestic processors either 
cannot or will not use. Economic considerations for the establishment 
of JVP and TALFF include:
    (1) Total world export potential of mackerel producing countries.
    (2) Total world import demand of mackerel consuming countries.
    (3) U.S. export potential based on expected U.S. harvests, expected 
U.S. consumption, relative prices, exchange rates, and foreign trade 
barriers.
    (4) Increased/decreased revenues to the U.S. from foreign fees.
    (5) Increased/decreased revenues to U.S. harvesters (with/without 
joint ventures).
    (6) Increased/decreased revenues to U.S. processors and exporters.
    (7) Increases/decreases in U.S. harvesting productivity due to 
decreases/increases in foreign harvest.
    (8) Increases/decreases in U.S. processing productivity.
    (9) Potential impact of increased/decreased TALFF on foreign 
purchases of U.S. products and services and U.S.-caught fish, changes 
in trade barriers, technology transfer, and other considerations.
    (B) Recreational sector ACT. Recreational ACT is composed of RSA, 
dead discards, and the Recreational Harvest Limit (RHL).
    (v) Performance review. The Squid, Mackerel, and Butterfish 
Committee shall conduct a detailed review of fishery performance 
relative to the mackerel ACL at least every 5 years.
    (A) If the ACL is exceeded with a frequency greater than 25 percent 
(i.e., more than once in 4 years or any two consecutive years), the 
Squid, Mackerel, and Butterfish Monitoring Committee will review 
fishery performance information and make recommendations to the MAFMC 
for changes in measures intended to ensure ACLs are not exceeded as 
frequently.
    (B) The MAFMC may specify more frequent or more specific ACL 
performance review criteria as part of a stock rebuilding plan 
following a determination that a stock has become overfished.
    (C) Performance reviews shall not substitute for annual reviews 
that occur to ascertain if prior year ACLs have been exceeded, but may 
be conducted in conjunction with such reviews.
    (3) Butterfish--(i) ABC. The MAFMC's SSC shall recommend an ABC to 
the MAFMC, as described in Sec.  648.20. The butterfish ABC is reduced 
from the OFL based on an adjustment for scientific uncertainty; the ABC 
must be less than or equal to the OFL.
    (ii) ACL. The butterfish ACL will be set equal to the butterfish 
ABC.
    (iii) OY. OY may not exceed the ACL, and must take into account the 
need to prevent overfishing while allowing the fishery to achieve OY on 
a continuing basis. OY is prescribed on the basis of MSY, as reduced by 
social, economic, and ecological factors.
    (iv) ACT. The Monitoring Committee shall identify and review 
relevant sources of management uncertainty to recommend the butterfish 
ACT as part of the specifications process. The ACT is composed of RSA, 
DAH, dead discards, and bycatch TALFF that is equal to 0.08 percent of 
the allocated portion of the mackerel TALFF. RSA will be based on 
requests for research quota as described in paragraph (g) of this 
section. DAH and bycatch TALFF will be set after deduction for RSA, if 
applicable.
    (v) The butterfish mortality cap will be allocated to the Loligo 
fishery as follows: Trimester I--65 percent; Trimester II--3.3 percent; 
and Trimester III--31.7 percent.
    (vi) Any underages of the butterfish mortality cap for Trimesters I 
or II will be applied to Trimester III of the same year, and any 
overages of the butterfish mortality cap for Trimesters I and II will 
be applied to Trimester III of the same year.
    (vii) Performance review. The Squid, Mackerel, and Butterfish 
Committee shall conduct a detailed review of fishery performance 
relative to the butterfish ACL in conjunction with review for the 
mackerel fishery, as outlined in this section.
    (c) Recommended measures. Based on the review of the data described 
in paragraph (b) of this section and requests for research quota as 
described in paragraph (g) of this section, the Monitoring Committee 
will recommend to the Squid, Mackerel, and Butterfish Committee the 
measures from the following list that it determines are necessary to 
ensure that the specifications are not exceeded:
    (1) RSA set from a range of 0 to 3 percent of:
    (A) The IOY for Loligo and/or Illex.
    (B) The commercial and/or recreational ACT for mackerel.
    (C) The ACT for butterfish.
    (2) Commercial quotas, set after reductions for research quotas.
    (3) The amount of Loligo, Illex, and butterfish that may be 
retained, possessed, and landed by vessels issued the incidental catch 
permit specified in Sec.  648.4(a)(5)(ii).

[[Page 35586]]

    (4) Commercial minimum fish sizes.
    (5) Commercial trip limits.
    (6) Commercial seasonal quotas/closures for Loligo and Illex.
    (7) Minimum mesh sizes.
    (8) Commercial gear restrictions.
    (9) Recreational harvest limit, set after reductions for research 
quotas.
    (10) Recreational minimum fish size.
    (11) Recreational possession limits.
    (12) Recreational season.
    (13) Changes, as appropriate, to the Northeast Region SBRM, 
including the coefficient of variation (CV) based performance standard, 
fishery stratification, and/or reports.
    (14) Modification of existing accountability measures (AMs) 
utilized by the Monitoring Committee.
    (d) Annual fishing measures. (1) The Squid, Mackerel, and 
Butterfish Committee will review the recommendations of the Monitoring 
Committee. Based on these recommendations and any public comment 
received thereon, the Squid, Mackerel, and Butterfish Committee must 
recommend to the MAFMC appropriate specifications and any measures 
necessary to assure that the specifications will not be exceeded. The 
MAFMC will review these recommendations and, based on the 
recommendations and any public comment received thereon, must recommend 
to the Regional Administrator appropriate specifications and any 
measures necessary to assure that the ACL will not be exceeded. The 
MAFMC's recommendations must include supporting documentation, as 
appropriate, concerning the environmental, economic, and social impacts 
of the recommendations. The Regional Administrator will review the 
recommendations and will publish a proposed rule in the Federal 
Register proposing specifications and any measures necessary to assure 
that the specifications will not be exceeded and providing a 30-day 
public comment period. If the proposed specifications differ from those 
recommended by the MAFMC, the reasons for any differences must be 
clearly stated and the revised specifications must satisfy the criteria 
set forth in this section. The MAFMC's recommendations will be 
available for inspection at the office of the Regional Administrator 
during the public comment period. If the annual specifications for 
squid, mackerel, and butterfish are not published in the Federal 
Register prior to the start of the fishing year, the previous year's 
annual specifications, excluding specifications of TALFF, will remain 
in effect. The previous year's specifications will be superseded as of 
the effective date of the final rule implementing the current year's 
annual specifications.
    (2) The Regional Administrator will make a final determination 
concerning the specifications for each species and any measures 
necessary to assure that the specifications will not be exceeded. After 
the Regional Administrator considers all relevant data and any public 
comments, notification of the final specifications and any measures 
necessary to assure that the specifications will not be exceeded and 
responses to the public comments will be published in the Federal 
Register. If the final specification amounts differ from those 
recommended by the MAFMC, the reason(s) for the difference(s) must be 
clearly stated and the revised specifications must be consistent with 
the criteria set forth in paragraph (b) of this section.
    (e) Inseason adjustments. The specifications established pursuant 
to this section may be adjusted by the Regional Administrator, in 
consultation with the MAFMC, during the fishing year by publishing 
notification in the Federal Register.
    (f) Distribution of annual Loligo squid commercial quota. (1) A 
commercial quota for Loligo squid will be allocated annually into 
trimester periods, based on the following percentages: Trimester I 
(January-April)--43.0 percent; Trimester II (May-August)--17.0 percent; 
and Trimester III (September-December)--40.0 percent.
    (2) Any underages of commercial period quota for Trimester I that 
are greater than 25 percent of the Trimester I quota will be 
reallocated to Trimesters II and III of the same year. The reallocation 
of quota from Trimester I to Trimester II is limited, such that the 
Trimester II quota may only be increased by 50 percent; the remaining 
portion of the underage will be reallocated to Trimester III. Any 
underages of commercial period quota for Trimester I that are less than 
25 percent of the Trimester I quota will be applied to Trimester III of 
the same year. Any overages of commercial quota for Trimesters I and II 
will be subtracted from Trimester III of the same year.
    (g) Research set-aside (RSA) quota. Prior to the MAFMC's quota-
setting meetings:
    (1) NMFS will publish a Request for Proposals (RFP) in the Federal 
Register, consistent with procedures and requirements established by 
the NOAA Grants Office, to solicit proposals from industry for the 
upcoming fishing year, based on research priorities identified by the 
MAFMC.
    (2) NMFS will convene a review panel, including the MAFMC's 
Comprehensive Management Committee and technical experts, to review 
proposals submitted in response to the RFP.
    (i) Each panel member will recommend which research proposals 
should be authorized to utilize research quota, based on the selection 
criteria described in the RFP.
    (ii) The NEFSC Director and the NOAA Grants Office will consider 
each panel member's recommendation, and provide final approval of the 
projects. The Regional Administrator may, when appropriate, exempt 
selected vessel(s) from regulations specified in each of the respective 
FMPs through written notification to the project proponent.
    (3) The grant awards approved under the RFPs will be for the 
upcoming fishing year. Proposals to fund research that would start 
prior to, or that would end after the fishing year, will not be 
eligible for consideration. All research and/or compensation trips must 
be completed within the fishing year for which the research grant was 
awarded.
    (4) Research projects will be conducted in accordance with 
provisions approved and provided in an Exempted Fishing Permit (EFP) 
issued by the Regional Administrator.
    (5) If a proposal is disapproved by the NEFSC Director or the NOAA 
Grants Office, or if the Regional Administrator determines that the 
allocated research quota cannot be utilized by a project, the Regional 
Administrator shall reallocate the unallocated or unused amount of 
research quota to the respective commercial and recreational fisheries 
by publication of a notice in the Federal Register in compliance with 
the Administrative Procedure Act, provided:
    (i) The reallocation of the unallocated or unused amount of 
research quota is in accord with National Standard 1, and can be 
available for harvest before the end of the fishing year for which the 
research quota is specified; and
    (ii) Any reallocation of unallocated or unused research quota shall 
be consistent with the proportional division of quota between the 
commercial and recreational fisheries in the relevant FMP and allocated 
to the remaining quota periods for the fishing year proportionally.
    (6) Vessels participating in approved research projects may be 
exempted from certain management measures by the Regional 
Administrator, provided that one of the following analyses of the 
impacts associated with the exemptions is provided:

[[Page 35587]]

    (i) The analysis of the impacts of the requested exemptions is 
included as part of the annual quota specification packages submitted 
by the MAFMC; or
    (ii) For proposals that require exemptions that extend beyond the 
scope of the analysis provided by the MAFMC, applicants may be required 
to provide additional analysis of impacts of the exemptions before 
issuance of an EFP will be considered, as specified in the EFP 
regulations at Sec.  648.12(b).
    6. Section 648.23 is revised to read as follows:


Sec.  648.23  Gear restrictions.

    (a) Mesh restrictions and exemptions. (1) Vessels subject to the 
mesh restrictions in this paragraph (a) may not have available for 
immediate use any net, or any piece of net, with a mesh size smaller 
than that required.
    (2) Owners or operators of otter trawl vessels possessing 1,000 lb 
(0.45 mt) or more of butterfish harvested in or from the EEZ may only 
fish with nets having a minimum codend mesh of 3 inches (76 mm) diamond 
mesh, inside stretch measure, applied throughout the codend for at 
least 100 continuous meshes forward of the terminus of the net, or for 
codends with less than 100 meshes, the minimum mesh size codend shall 
be a minimum of one-third of the net, measured from the terminus of the 
codend to the headrope.
    (3) Owners or operators of otter trawl vessels possessing Loligo 
harvested in or from the EEZ may only fish with nets having a minimum 
mesh size of 2\1/8\ inches (54 mm) during Trimesters I (Jan-Apr) and 
III (Sept-Dec); or 1\7/8\ inches (48 mm) during Trimester II (May-Aug), 
diamond mesh, inside stretch measure, applied throughout the codend for 
at least 150 con