Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Annual Catch Limits and Accountability Measures, 60606-60650 [2011-24511]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Rules and Regulations]
[Pages 60606-60650]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24511]



[[Page 60605]]

Vol. 76

Thursday,

No. 189

September 29, 2011

Part II





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; Final Rule

Federal Register / Vol. 76 , No. 189 / Thursday, September 29, 2011 / 
Rules and Regulations

[[Page 60606]]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100902424-1331-03]
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: Final rule.

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

SUMMARY: NMFS hereby implements an omnibus amendment to all Mid-
Atlantic Fishery Management Council (Council) fishery management plans 
(FMPs) to bring all Council FMPs into compliance with the annual catch 
limit (ACL) and accountability measure (AM) requirements of the 
Magnuson-Stevens Act (MSA). This rule is necessary to establish 
measures that address the MSA-required elements to utilize scientific 
advice, establish catch limits, and maintain accountability in managing 
fisheries. There are multiple objectives 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; and to establish processes for revisiting and modifying the 
measures established by the Omnibus Amendment 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: Effective October 31, 2011.

ADDRESSES: Copies of the 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 Omnibus Amendment 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

    NMFS published a Notice of Availability (NOA) soliciting public 
input on the Omnibus Amendment in the Federal Register on May 23, 2011 
(76 FR 29717). NMFS published a proposed rule in the Federal Register 
on June 17, 2011 (76 FR 35578), proposing regulations that would 
implement the Omnibus Amendment measures. The NOA specifically 
solicited input on whether NMFS, acting on the behalf of the Secretary 
of Commerce (Secretary), should approve, partially approve, or 
disapprove the Omnibus Amendment. Comments were accepted through July 
22, 2011, on the NOA. The proposed rule outlined the Acceptable 
Biological Catch (ABC) control rules for use by the Scientific and 
Statistical Committee (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 information on the processes for the future 
modification of the measures established through the Omnibus Amendment. 
Comments were accepted on the proposed rule measures through July 18, 
2011. Additional background information and detail on why and how the 
Omnibus Amendment was developed and the overarching requirements the 
amendment satisfies were provided in the Omnibus Amendment proposed 
rule (76 FR 35578, June 17, 2011) and are not repeated here.
    The Council reviewed the proposed Omnibus Amendment regulations as 
drafted by NMFS and deemed them to be necessary and appropriate as 
required by section 303(c) of the MSA. The Omnibus Amendment 
established the measures described later in this final rule through the 
following specific FMP amendments: Amendment 13 to the Atlantic 
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.

Approved Omnibus Amendment Measures

    NMFS evaluated all comments received by the end of the comment 
periods, whether specifically directed to the amendment approval 
decision or the proposed rule measures, in its decisionmaking process. 
NMFS, on behalf of the Secretary, approved the Omnibus Amendment on 
August 12, 2011. NMFS now implements through this final rule, the 
Omnibus Amendment measures recommended by the Council and as contained 
in the proposed rule, with minor clarifications as outlined in the 
Changes and Clarifications from the Proposed Rule section later in this 
preamble. As outlined in the proposed rule and Omnibus Amendment 
document, this action establishes the framework that the Council and 
SSC will utilize to establish catch limits, the system for maintaining 
accountability when ACLs are exceeded, the process to evaluate the 
continued efficacy of the overall ABC/ACL/AM system, and the methods by 
which future changes to the overall system may be made. The actual ABC 
recommendations by the SSC and establishment of ACLs by the Council 
will occur in subsequent specification setting processes. The approved 
Omnibus Amendment measures are as follows:

ABC Control Rules

    This rule implements the four ABC control rule approaches developed 
by the Council's SSC, as proposed. The framework of these rules places 
stocks into one of four levels, each with specific criteria for both 
placement and generation of ABC recommendations, based on the amount of 
scientific uncertainty as determined by the SSC involved with the stock 
assessment, available data, life history, and other scientifically 
related parameters. When possible, the SSC will utilize the overfishing 
level (OFL) probability distribution in conjunction with the Council's 
risk policy to derive and recommend ABC to the Council. In instances 
where OFL cannot be determined, or for stocks that the SSC determines 
have an unreliable OFL or OFL distribution, the control rules guide the 
SSC in how ABC shall be derived.

Council Risk Policy

    This rule implements the risk policy approaches, as proposed. The 
Council's risk policy is designed to inform the SSC of the Council's 
tolerance for the

[[Page 60607]]

risk of overfishing. The risk policy uses a combination of the ratio of 
biomass (B)/BMaximum Sustainable Yield (MSY) and the life 
history traits of any given species to set the tolerance for 
overfishing anywhere from zero (for stocks with a B/BMSY of 
0.10 or lower, irrespective of life history traits) to a maximum of a 
40-percent probability of overfishing for stocks with a typical life 
history as determined by the SSC and a B/BMSY of 1.0 or 
higher.
    The probability of overfishing, as determined by the risk policy, 
will be applied by the SSC to stocks with either an OFL distribution 
from the stock assessment or generated by the SSC. 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 risk policy does not permit 
increases in ABC until an acceptable OFL has been identified.
    For stocks under a rebuilding plan, the risk policy requires that 
the probability of exceeding the rebuilding target F 
(FREBUILD) would be 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. In instances where 
the rebuilding plan risk policy and general risk policy result in 
different approaches and potential ABCs, the SSC will forward the lower 
of the two resulting ABCs to the Council as a more risk averse 
approach.

Annual Catch Limits and Accountability Measures

    This final rule implements the ACL and AM measures, as proposed, 
along with the minor changes outlined in the Changes from the Proposed 
Rule Section later in this preamble. Under the implemented approach 
established by the Omnibus Amendment, the Council will 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. Where 
applicable, Canadian catch estimates will be removed from the overall 
ABC to establish a domestic ABC for U.S. catch. The Council will 
recommend to NMFS ACLs set equal to ABC for all species, with some 
further subdivision to sector-level ACLs where stocks have pre-existing 
allocations for both commercial and recreational fisheries. The sum of 
these sector ACLs will equal the ABC. Annual Catch Targets (ACTs) will 
be used to address management uncertainty. Council staff or species-
specific monitoring committees will 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 that address the 
associated sector-specific management uncertainties will be used. 
Finally, estimated discards (i.e., dead discarded catch) will be 
removed from ACTs to yield either commercial or recreational landing 
targets, as applicable. In summary, the structure for all Council 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.
    Existing proactive accountability measures, including commercial 
trip and possession limits, commercial fishery closure authority, and 
commercial fishery overage repayments are being retained and codified 
as AMs through the Omnibus Amendment. In addition, new AMs are 
established to close recreational fisheries when data in hand indicate 
ACLs have been met or exceeded, as well as establishing lb-for-lb 
repayment of any catch above established ACLs for all fisheries. 
Recreational ACLs will be evaluated on a 3-yr rolling average 
comparison of ACLs to 3-yr average catch. The Omnibus Amendment also 
provides for adjustments to future ACTs when the causes of ACL overages 
are not related to landings (i.e., dead discards, a combination of 
landings and discards, or other sources of stock mortality that may be 
tracked and subsequently quantified).

Review and Future Modification of Omnibus Amendment Measures

    The Omnibus Amendment establishes that ACL and AM performance 
reviews will occur at least every 5 yr if ACLs are 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 yr, or in any 2 consecutive years), the Omnibus 
Amendment requires the Council to initiate a review of the ACL, ACT, 
and AM approaches used.
    The Omnibus Amendment implements the comprehensive listing of items 
that may be modified through the Council's specification or framework 
adjustment processes, as proposed.

Comments and Responses

    NMFS received 11 combined comments on the May 23, 2011 (76 FR 
29717), NOA requesting input on the Secretary's amendment approval 
decision and the Omnibus Amendment proposed rule (76 FR 35578; June 17, 
2011). Comments were submitted by private citizens, a recreational 
party/charter vessel operator, a commercial fish processing plant 
operator, a commercial fisheries advocacy group, and the following 
nongovernmental organizations (NGOs): Environmental Defense Fund; Pew 
Environmental Group; Marine Fish Conservation Network; National 
Coalition for Marine Conservation; and Oceana. Some of the comments did 
not provide input on the amendment approval decision, nor did they 
address the proposed measures; thus no response to these comments is 
provided here. Where possible, responses to similar comments on the 
amendment approval decision and proposed measures have been 
consolidated.
    Comment 1: One NGO commented that the Council and NMFS appeared to 
exempt Loligo and Illex squids from all the required provisions of the 
MSA and NS1 guidelines. Specifically, the commenter stated that ABC 
must be established for both squid species using the ABC control rules 
and Council risk policy.
    Response: The Omnibus Amendment only exempts Loligo and Illex squid 
from the ACL and AM components of the amendment; all other NS1 
guideline requirements apply to these two species. Both the Omnibus 
Amendment document and the proposed rule state that Loligo and Illex 
squid are exempt from the ACL and AM requirements. Neither document 
provides any additional exemptions from the NS1 guidelines for these 
species. The Omnibus Amendment approach for both squids is wholly 
consistent with the annual life cycle exemption found in the note to 
section 303 of the MSA and the NS1 guidelines at Sec.  600.300(h)(2) 
and, as such, they are exempt from ACL and AM requirements, but must 
have status determination criteria, MSY, OY, ABC, and ABC control rules 
as part of their FMP. As both species already have these required 
elements in their FMP, NMFS is implementing the Omnibus Amendment as 
proposed.
    Comment 2: One NGO raised concerns about the process to modify the 
ABC control rules and risk policy established by the Omnibus Amendment. 
The commenter asserted that these two components of the Omnibus 
Amendment could be modified through the Council's specification 
process. Specific concerns were raised that the specification process 
could inappropriately be used to modify the ABC control rules and/or

[[Page 60608]]

risk policy, which could minimize public participation and analysis of 
alternatives. The commenters stated that the Omnibus Amendment must be 
disapproved until such time that the potential adjustment processes are 
clarified by the Council.
    Response: NMFS disagrees that the Omnibus Amendment should be 
disapproved, as these concerns are unfounded. The Omnibus Amendment and 
its implementing regulations do not authorize the Council to make such 
changes through the specification process. Minor adjustments, within a 
narrowly defined scope, are permitted as outlined in each species-
specific framework adjustment process regulation. For all other 
changes, the Council would be required to utilize an FMP amendment 
process.
    Comment 3: One NGO stated that the preferred Omnibus Amendment risk 
policy (Alternative G, a two-tiered approach based on species life 
history) provides too great a risk of overfishing and should be 
disapproved in favor of one of the other proposed risk alternatives 
(Alternative D, a four-tiered approach considering stock status, 
replenishment threshold, and productivity, as well as an approach for 
the maximum permissible risk of overfishing allowed at a B/
BMSY inflection point higher than 1.0). In addition, the 
commenter expressed concern about the vague life history criteria in 
the two-tiered Alternative G approach that will be used to distinguish 
typical and atypical species. The commenter also asserted that the risk 
policy is largely superfluous, as many of the Council stocks will not 
have the necessary OFL probability distributions needed to apply the 
risk policy in a meaningful way. These comments on the risk policy were 
suggested as grounds upon which NMFS should disapprove the Omnibus 
Amendment (i.e., allegations that the risk policy will not prevent 
overfishing.)
    Response: NMFS disagrees that the amendment should be disapproved 
and also disagrees that one risk policy alternative must be substituted 
over another. NMFS has approved and is implementing the Council-
preferred risk alternative (Alternative G). NMFS considers that the 
risk policy, in conjunction with the comprehensive system for deriving 
ABC and establishing ACL(s) and ACT(s), will provide a sufficiently 
high probability that overfishing will not occur.
    The risk policy under Alternative G establishes a maximum 
permissible risk of overfishing stocks. For a stock that has a B/
BMSY ratio over 1.0 and has a typical life history, a 
maximum 40-percent probability of overfishing or, alternatively 
expressed as a 60-percent probability that overfishing will not occur, 
is permitted. This probability is 10 percent lower than the precedent 
established for rebuilding probability of success, wherein a 50-percent 
probability of not exceeding the FREBUILD target was 
established for summer flounder (see NRDC v. Daley). The maximum 
probability of overfishing for a SSC-determined atypical life history 
species is 35 percent, which is a 65-percent probability that 
overfishing will not occur. The NS1 guidelines indicate that the risk 
tolerance for overfishing a stock is an important component of the ABC 
control rule and derivation process; however, it is not a requirement 
that must be specified in an FMP. The NS1 guidelines make clear that a 
minimum threshold of a 50-percent probability of overfishing is 
required; thus, NMFS would only have grounds to disapprove the 
Council's risk policy approach if it permitted a higher probability 
that overfishing would occur.
    All the risk policy alternatives were developed through a 
comprehensive, collaborative effort of the Council's SSC and the 
Council. The alternative implemented in the final rule provides a 
useful and appropriate system to inform the SSC of the Council's 
tolerance for the risk of overfishing. It is a more robust approach 
than selecting a fixed percentage, and is more restrictive than the 
minimum requirement, and sets a maximum probability thereby providing 
some flexibility to consider current information and circumstances when 
setting catch levels. NMFS acknowledges that the risk policy is only 
applicable for stocks assigned to ABC control rule levels 1-3 when an 
acceptable OFL probability is provided as an assessment output or can 
be generated by the SSC for level 3 stocks. NMFS also acknowledges that 
the expert judgment of the SSC will play a critical role in deriving 
ABC for stocks for which no OFL exists or for which OFL is not viewed 
as adequate. These stocks will either have the default control rule 
applied (75 percent of the FMSY rate for level 3 stocks) or 
will have thoroughly documented, more conservative approaches designed 
to ensure overfishing does not occur (level 4 stocks). Additionally, 
deference is given to the SSC to make determinations as to which 
Council-managed species have typical or atypical life histories. In all 
the aforementioned scenarios wherein the SSC may utilize judgment, the 
process will occur in open meetings and will include documentation and 
justification for the decisions reached. This is not inconsistent with 
the approach contemplated under NS1. The SSC recently applied the risk 
policy in developing ABC recommendations for the summer flounder, scup, 
and bluefish stocks. NMFS disagrees that the risk policy is a ``paper 
exercise,'' as the SSC has begun using both the ABC control rules and 
risk policy.
    Comment 4: Some commenters expressed concern that the ABC control 
rule for deriving ABC for stocks categorized as level 3 and 4, and the 
conditions for when the SSC might deviate from the ABC control rule 
framework, are too vague. Some of these comments recommended 
disapproving the amendment until such time that more information and 
criteria were added to how ABC would be derived for level 3 and 4 
stocks and rules established for when the SSC could deviate from the 
ABC control rule framework.
    Response: NMFS disagrees. NS1 guidelines contemplate and authorize 
SSCs to deviate from ABC control rule calculations, but require the SSC 
to provide an explanation of why an alternative ABC is more appropriate 
(Sec.  600.310(f)(3)). Because the authority to deviate from ABCs 
calculated using the control rules is explicitly provided under the NS1 
guidelines, there was no need to include the generic description of 
this possibility in the Omnibus Amendment and proposed rule; however, a 
brief description was included, designed to echo the language of Sec.  
600.310(f)(3), for better transparency of the process. In fact, given 
the language in the NS1 guidelines, the SSC may deviate from any ABC 
control rule level at any time, provided it can satisfactorily explain 
why the deviation was necessary and how the alternative methods used 
are the best approach.
    In addition, the level 3 and 4 control rule approaches provide a 
meaningful framework for the SSC to evaluate the quality of assessment 
information and uncertainty in deriving an ABC recommendation for the 
Council. The SSC is expected to conduct its ABC recommendation process 
in an open, transparent public forum and to provide detailed 
documentation for the Council and public that provides the information 
considered, the approaches taken, and why the ABC recommended is 
consistent with the best available scientific information, to satisfy 
National Standard 2 requirements. For these reasons, the level 3 and 4 
ABC control rules and the description process for recommending 
alternatively derived ABCs are sufficient to approve the Omnibus 
Amendment. NMFS

[[Page 60609]]

expects that the ABC control rule provides a sufficiently robust 
approach that utilizes the best available scientific information, and 
that the ABC recommendations from the SSC will provide a low risk of 
overfishing any given stock, irrespective of that stock's level 
assignment. There remain some stock assessments that are limited by the 
available data and/or understanding of species status. The four-level 
ABC control rule framework is designed to encourage scientific 
examination so that stocks may be advanced to levels indicative of more 
robust understanding. The proposed rule did not repeat that the ABC 
control rules are a spectrum from least uncertain to most uncertain for 
levels 1 to 4; this description is in the Omnibus Amendment.
    Comment 5: Several commenters with recreational fishing interests 
stated that no recreational ACL overages should be required to pay back 
lb-for-lb the overage amount through AMs until such time that the 
Marine Recreational Information Program (MRIP) is operational.
    Response: NMFS expects the MRIP system for estimating recreational 
catches to be available for the first year of ACL performance 
evaluation (i.e., the 2012 FY).
    Comment 6: One commenter raised concern that the Omnibus 
Amendment's planned 5-year review of ABC control rules and ACL 
performance is too long. The commenter was concerned about lost yield 
if ACLs and ACTs are set ``too conservatively,'' stating that the only 
opportunity to potentially see less conservative approaches applied may 
not occur until the 5-yr review.
    Response: The Omnibus Amendment affords flexibility for the Council 
to re-examine the performance of any of the measures at any time it 
deems such a review appropriate. The selection of a planned 5-year 
detailed performance review was deliberately selected to ensure that 
ABC, ACL, and ACT setting approaches and subsequent performance will be 
formally reviewed by the Council on a fixed schedule; however, this 
does not preclude additional review on a more frequent basis. In 
addition, the Omnibus Amendment requires a thorough performance review 
should an ACL be exceeded more than once in a 4-year period, or if an 
ACL is exceeded in 2 consecutive years. These latter criteria for 
review may well occur if ACLs have been set ``too conservatively,'' as 
suggested by the commenter. Were no period expressed for the formal 
review, the Council would not be obligated to perform any performance 
review unless the more than 1-in-4 or 2-consecutive-year ACL overages 
occurred. The SSC has been reviewing the establishment process and the 
performance of ABC recommendations annually. It is expected that the 
level of review involved with the first few years of operation under 
the ACL management system will require more intensive examination of 
performance, until such time that the system becomes more stable.
    Comment 7: One commenter stated that the potential economic impacts 
of the Omnibus Amendment implemented frameworks should have been 
prepared by the Council and NMFS. Specifically, the commenter called on 
NMFS and the Council to prepare a more thorough analysis of potential 
changes in yield, by species, and the resultant potential economic 
impacts.
    Response: NMFS disagrees. The Omnibus Amendment outlines a 
framework for how catch levels will be established consistent with NS1 
requirements and, as such, does not provide information on actual catch 
levels, by species, the application of risk tolerances, or scientific 
or management uncertainties. The Council's approach, supported by NMFS, 
has been that the application of the Omnibus Amendment's framework for 
setting ABC, ACLs, and ACTs will be fully evaluated as individual 
species specification processes occur in 2011 for the 2012 FY. These 
evaluations will provide economic impact analysis of the ABCs, ACLs, 
ACTs, and other Omnibus Amendment elements, specific to the measures 
being proposed.
    Comment 8: One commenter requested clarification on whether the 
decision to close fisheries will be made based on exceeding the ACL, 
ACT, or other levels within the Omnibus Amendment framework. The 
commenter also asked for clarification on why commercial and 
recreational sector landing-based closure evaluations are different.
    Response: Closures are tied to the established commercial fishing 
quotas and recreational harvest limits (for fisheries with recreational 
sectors) under the Omnibus Amendment. Landings will be monitored during 
the fishing seasons and proactive AMs utilized to close the respective 
sectors when landing limits are reached. The commercial closure 
approaches vary from species to species, but generally the level of 
commercial landings are monitored in-season on a weekly or daily basis, 
based on dealer-reported data, and the commercial fishery may be closed 
when landings projections indicate that the established level will be 
reached or exceeded. Some commercial fisheries also have possession or 
trip limit reductions that occur when specified amounts of landings are 
reached. For example, the scup Winter I season possession limit is 
reduced when 80 percent of the Winter I landing limit is reached. Many 
of these commercial fishery management systems previously existed and 
were adopted as proactive AMs in the Omnibus Amendment.
    Recreational fisheries landings will also be monitored during the 
fishing season, but because recreational data are available much less 
frequently (i.e., updates provided in 2-month waves, delivered some 6 
weeks after the end of the wave period), the Omnibus Amendment 
establishes that recreational fishery closures will occur only when 
data in hand indicate a landing level has already been reached or 
exceeded. This is to help mitigate the uncertainty that occurs in 
trying to project recreational landings. The authority to close 
recreational fisheries based on landings evaluations is a new component 
adopted in the Omnibus Amendment.
    There is not currently the ability to monitor dead discards in 
season for the purposes of inseason monitoring and potential closure. 
There will be a post-fishing year accounting to determine dead discards 
and, in combination with the final landings data, an evaluation of ACL 
and ACT performance. If in the future, the ability to monitor total 
catch becomes available on a real-time basis, the Council may consider 
modifying an FMP to specify when closures will be enacted at either the 
ACT or ACL level.
    Comment 9: One commenter stated that Atlantic mackerel and spiny 
dogfish ABCs should not be reduced to account for Canadian catch.
    Response: These stocks are managed on a stock-wide basis, including 
the portion of the stock distributed in Canadian waters. The 
specification setting process for the two species currently accounts 
for Canadian catch on the stock prior to establishing catch levels. The 
Omnibus Amendment established an approach wherein this stock-wide 
management is preserved and, because the MSA is inapplicable within 
Canadian jurisdiction, removes the estimated Canadian catch before 
establishing a domestic ABC, ACL, and ACT for the U.S. portion of the 
fishery. NMFS agrees that this is a logical approach and accomplishes 
management of the stocks throughout their range, which is a 
biologically sound approach.
    Comment 10: Some commenters alleged that NMFS failed to ensure that

[[Page 60610]]

the Omnibus Amendment's EA provided alternatives to the proposed 
action, and that an Environmental Impact Statement (EIS) should have 
been required for the Omnibus Amendment. The commenters cited several 
instances wherein they alleged that additional reasonable and/or 
feasible alternatives should have been developed and instances where 
they believe the analyses were incomplete or otherwise insufficient. 
Alleged instances of insufficient alternatives include an alleged 
failure to consider additional approaches for dealing with Canadian 
catch in the Atlantic mackerel and spiny dogfish fisheries, lack of 
additional alternatives beyond setting ACL = ABC, with emphasis that 
ACL < ABC should have been developed as an alternative for 
consideration and analysis, an alleged failure to provide sufficient 
measures to ensure accountability, including insufficient alternatives 
for proactive AMs besides ACT. Most of the comments on inadequate 
analyses centered on alleged insufficient description of the fisheries, 
species captured, and consideration of stocks in the fishery.
    Response: Consistent with NEPA, Council for Environmental Quality 
(CEQ) regulations, and NOAA administrative policy, the Council and NMFS 
collaborated to prepare an EA to evaluate the significance of the 
environmental impacts expected as a result of the actions proposed in 
the Omnibus Amendment. The results of this assessment are provided in 
section 7.0 of the EA signed by NMFS on July, 28, 2011. The FONSI 
concludes that because the Omnibus Amendment will merely be formalizing 
the process of addressing scientific uncertainty and management 
uncertainty when setting catch limits with a comprehensive system of 
accountability for catch for each of the managed resources that the 
impacts of the considered alternatives are administrative in nature. 
Thus because the measures contained in the Omnibus Amendment largely 
build on measures already contained in the FMP, which have been in 
place for many years, NMFS does not expect that the new actions taken 
in the Omnibus Amendment will have any significant impacts. The 
commenters provided no evidence, nor even any claims, that the 
conclusions in the FONSI are not supported by the evidence provided in 
the EA for this finding.
    According to the CEQ regulations, and guidance on the subject, an 
EIS need only be prepared when an EA or other related analysis 
identifies significant effects on the environment or if the facts 
available to the action agency cannot support the conclusions required 
in order to make a FONSI. The EA associated with the Omnibus Amendment 
evaluated the expected direct, indirect, and cumulative impacts likely 
to result from implementation of the proposed action. The EA, in both 
form and scope, followed all agency guidelines for an EA associated 
with an FMP amendment. Had a FONSI determination not been supportable, 
based on the analyses, then an EIS would have been prepared, consistent 
with the process outlined in CEQ regulations. Future FMP actions that 
make use of the Omnibus Amendment processes to establish fishing quotas 
will evaluate the impacts of those actions as part of the specification 
setting process.
    The Omnibus Amendment considered a reasonable range of alternatives 
for the decisions made. The EA clearly lays out the alternatives 
considered for each decision point and explains the reasoning behind 
the development of those alternatives, and for the ultimate decision 
between those alternatives. Additionally, Appendix A to the EA provides 
a discussion of the alternatives that were initially developed, but not 
given further consideration because they were determined to be either 
infeasible or insufficient.
    The response to comment 9 provides additional information on why 
NMFS considers the Omnibus Amendment approach for addressing Canadian 
catch of Atlantic mackerel and spiny dogfish to be acceptable. The 
response to comment 11 outlines NMFS' response that additional 
treatment of species captured in target fisheries, and designation of 
non-target stocks and ecosystem components was not required.
    NMFS has determined that the Council's analysis in setting ABCs, 
ACLs, and AMs was consistent with the NS1 guidelines and met the 
requirements of NEPA. The NS1 guidelines instruct that in order to 
prevent overfishing and achieve, on a continuing basis, OY all sources 
of uncertainty--both scientific and management uncertainty--must be 
addressed. Scientific uncertainty should be addressed in reducing the 
ABC from the ACL and management uncertainty can either be addressed in 
reducing the ACL from the ABC, or through the use of AMs, including 
ACTs. The purpose of utilizing an ACT is so that, given uncertainty in 
the amount of catch that will result from the conservation and 
management measures in the fishery, the ACL will not be exceeded.
    The Council acted consistently with these guidelines in deciding to 
set ACL=ABC for all managed species and to address management 
uncertainty by setting ACTs. Commenters argue that the decision to set 
ACL=ABC precludes the Council for considering OY factors when setting 
the ACL and for that reason that the Council was required to consider 
alternatives that set the ACL at a level less than the ABC. The 
response to comment 12 below further explains the Council's approach 
for considering OY factors. Because the Council, consistent with the 
NS1 guidelines, chose to address those OY factors that are not 
considered in setting ABC when setting the ACT, there was no need to 
consider setting the ACL at a level lower than the ABC; such an 
alternative would have been superfluous.
    Moreover, the Council fully complied with NEPA in developing a 
reasonable range of alternatives for the processes of setting ABCs, 
ACLs, and AMs (including ACTs). Where it was feasible, the Council 
developed multiple proactive and reactive accountability measures 
designed to prevent the ACLs from being exceeded. Notably while one 
commenter argues that more proactive accountability measures were 
required to be considered, the commenter does not point to any specific 
measures that were overlooked by the Council. The Council considered 
all reasonable and feasible alternatives, consistent with NEPA.
    Comment 11: Many of the NGOs alleged that the Omnibus Amendment 
fails to adequately analyze non-target species captured by fisheries 
for Mid-Atlantic FMP species and does not adequately consider all 
fisheries requiring conservation and management. These commenters 
indicated that the Omnibus Amendment should be disapproved and 
additional analyses conducted to indicate all species captured in Mid-
Atlantic fisheries, reclassification of stocks as target, non-target, 
stocks in the fishery, and ecosystem components, as needed. One 
commenter indicated that this information is contained in existing 
Standardized Bycatch Reporting Methodology (SBRM) reports and should 
have been used by the Council in the Omnibus Amendment development. 
Further comments on this topic stated that the Omnibus Amendment should 
be disapproved because it fails to establish appropriate sub-ACLs for 
FMP-managed species captured incidentally in Council-managed target 
fisheries. One commenter stated, as an example, that swordfish captured 
in the squid trawl

[[Page 60611]]

fishery should be managed through a sub-ACL.
    Response: NMFS disagrees with these interpretations of the NS1 
guidelines and disagrees that the Omnibus Amendment's approach to 
stocks in the fishery, incidentally captured species, and sub-ACLs is 
deficient and must be disapproved. Section 302(h) of the MSA authorizes 
each Council to prepare and submit a fishery management plan and 
amendments for ``each fishery under its authority that requires 
conservation and management.'' The NS1 guidelines provide that, by 
default, species managed under FMPs are considered to be stocks in the 
fishery. 50 CFR 600.310(d). The NS1 guidelines do not require Councils 
to change which species are or are not included in FMPs, nor do the NS1 
guidelines require FMPs to incorporate ecosystem component species 
classifications. Councils may, but are not required to, use an 
``ecosystem component species'' classification. 50 CFR 600.310(c)-(d). 
Thus, Councils have had, and continue to have under the MSA and NS1 
Guidelines, considerable discretion to define the managed ``fishery.''
    Consistent with the MSA and the NS1 Guidelines, the Council 
determined that the stocks managed under its FMPs should all continue 
to be considered stocks in the fishery, exercised its discretion not to 
add other species in the fishery, and decided against pursuing 
potential ecosystem component species classification. While the NS1 
guidelines explain that a Council should determine which target and 
non-target species to include in a fishery, the guidelines do not 
require FMPs to list species in target and non-target species 
``classifications.'' See 50 CFR 600.310(d). The main point of 
classifying stocks is distinguishing between ``stocks in the fishery'' 
versus the ecosystem component species category. See 50 CFR 600.310(c)-
(d). The MSA also does not require classification into target and non-
target classifications. Section 303(a)(2) of the MSA merely requires 
that an FMP contain a description of the species of fish involved in 
the fishery; this is not a new requirement, nor is that requirement 
modified by the NS1 guidelines. The Mid-Atlantic FMPs have, since their 
inception, approval, and implementation, contained these required 
descriptions. Amendments to the FMPs, including the Omnibus Amendment, 
update these listings. The Omnibus Amendment's affected environment 
incorporates, by reference, detailed analyses of species involved in 
each fishery. NMFS supports the Council's approach in the Omnibus 
Amendment. The level of analyses requested by these collective comments 
would be wholly appropriate if the Council had elected to add new 
stocks to the fishery or include them as ecosystem component species. 
As the Council did not, the level of fishery information provided is 
sufficient and not grounds for disapproving the amendment.
    The designation of sub-ACLs is not required by the MSA or NS1 
Guidelines. Although sub-ACLs are utilized in some fisheries in other 
regions, the Council decided that sub-ACLs were neither reasonable or 
practical here, given the current constraints on fishery monitoring for 
Mid-Atlantic stocks. All managed species catch, regardless of whether 
the FMP is a Mid-Atlantic, South Atlantic, New England, or Secretarial 
FMP, is fully accounted for under the respective ACLs, irrespective of 
whether the catch is directed landings, dead discards in the directed 
fishery, or dead discards incurred while targeting other species. With 
regard to swordfish, the Secretary of Commerce, and not the Councils, 
directly manages the fishery under an Atlantic Highly Migratory Species 
FMP. 16 U.S.C. 1854(g). That Secretarial FMP accounts for the total 
catch of swordfish, including that which occurs in the squid fishery 
both as authorized retention for sale and as dead discards (if any). 
The NS1 guidelines do not require the Secretary and the Council to 
establish a swordfish sub-ACL in the Atlantic Mackerel, Squids, and 
Butterfish FMP.
    Comment 12: Several NGOs commented that NMFS should disapprove or 
partially disapprove the Omnibus Amendment until approaches to OY are 
revised by the Council consistent with the NS1 Guidelines. 
Specifically, these commenters asserted that the Omnibus Amendment must 
include OY evaluations for all Council-managed species, with specific 
determination of where OY lies within the overall ABC/ACL/ACT framework 
for each species. These commenters stated that more specificity must be 
included in the process descriptions for how ACL or ACTs may be 
adjusted for OY considerations (i.e., relevant economic, social, or 
ecological factors), and provide that ACL should be reduced from ABC 
for OY considerations. In addition, one commenter said it would not be 
appropriate for OY considerations to be applied at the ACT level, as it 
is a target, not a limit. Another commenter indicated that 
specification of OY is missing from several Mid-Atlantic FMP 
implementing regulations.
    Response: The Omnibus Amendment's approach to OY is consistent with 
the MSA and the NS1 guidelines. National Standard 1 of the MSA requires 
that a fishery management plan or amendment prevent overfishing while 
achieving, on a continuing basis, the optimum yield from each fishery 
for the United States fishing industry. 16 U.S.C. 1851(a)(1). The MSA 
defines ``optimum'' with respect to yield from a fishery as being 
prescribed on the basis of maximum sustainable yield from the fishery, 
as reduced by relevant economic, social or ecological factor. 16 U.S.C. 
1802(33). The Omnibus Amendment amends existing FMPs to address new 
annual catch limit and other requirements, but retains the FMPs' 
existing, previously-approved processes for specifying and assessing 
OY. The Council's FMPs all contain a process for assessing, specifying, 
identifying, and adjusting OY, as needed, based on relevant economic, 
social, and ecological factors for each species. The reauthorized MSA 
did not change National Standard 1 or the definition of OY, and the 
basic approach to OY is unchanged in the NS1 guidelines. Thus, there is 
no need to revise the OY processes in the Omnibus Amendment.
    The NS1 Guidelines provide that OY can be described at a fishery, 
stock complex, or stock level and the OY specification process must be 
included in FMPs or amendments. 50 CFR 600.310(c), (e)(3). While the 
Councils have codified OY identification approaches for some individual 
stocks, for other stocks, the Councils address OY at the fishery level, 
consistent with what is required under the MSA and allowed under the 
NS1 guidelines. Providing a clear description of OY considerations is 
an important part of the specification process, and the existing FMPs 
provide such descriptions.
    Because the reauthorized MSA added ACLs and ABC, the NS1 guidelines 
were revised to clarify the relationships between MSY, OY, ABC, and 
ACL(s), and these relationships were also discussed in the Omnibus 
Amendment (p. 27-28). The guidelines state that achieving OY on a 
continuing basis means producing a long-term series of catches such 
that the average catch is equal to OY and other conservation objectives 
of the MSA are met. 50 CFR 600.310(e)(3)(i)(B). The guidelines further 
state that an FMP must contain measures, including ACLs and AMs, to 
achieve OY on a continuing basis. However, the MSA and guidelines do 
not require that OY considerations be addressed when developing ACLs. A

[[Page 60612]]

Council may set an ACL lower than ABC to take into account factors 
related to preventing overfishing or achieving OY, or it may set the 
ACL equal to ABC and take these additional factors into account when 
establishing ACTs. See final NS1 guidelines, 74 FR 3178, 3189 
(explaining OY, ABC, ACT, ACL relationships in response 33).
    Here, the Omnibus Amendment takes the latter approach. The Omnibus 
Amendment rightly describes OY as the long-term average desired yield 
from a fishery; OY is not, and should not be confused with, an annual 
catch limit. Yield to a fishery and total catch are not 
interchangeable; it is expected that the OY level will vary over time, 
as scientific and management uncertainties, as well as dead discards 
are reduced.
    NMFS disagrees that the lack of an OY process description or 
specific criteria for the monitoring committees' consideration to 
specify OY is grounds for disapproving the amendment. The Omnibus 
Amendment is designed to provide flexibility to the Council and their 
committees to adapt their practices over time and in response to 
changing fishery conditions while meeting its obligations under the 
MSA, NS1 guidelines, and their FMPs. NMFS considers that the Omnibus 
Amendment processes lend themselves to a transparent, participatory 
process that will allow the public and interested parties a mechanism 
to understand the concerns and issues raised by these commenters with 
respect to OY.
    Comment 13: One NGO stated that the Omnibus Amendment lacks 
required ACT control rules and that the process for how management 
uncertainty will be addressed is deficient, as it lacks a clearly 
articulated policy. For these reasons, the commenter states the 
amendment must be disapproved and these components revised.
    Response: NMFS disagrees. The Council directed the monitoring 
committees and staff to set ACTs on a sector-specific basis so that the 
ACTs would accurately reflect the interannual and intrannual 
variability in the sources of management uncertainty that vary by 
sector. ACTs are not required under the NS1 guidelines but are 
discretionary provisions that can be used as proactive AMs. Similarly, 
ACT control rules are not required to be specified in the FMP by either 
the MSA or the NS1 guidelines. The lack of a single over-arching 
formulaic control rule does not weaken the Omnibus Amendment's 
approaches for addressing management uncertainty through a descriptive 
process. The sector-specific committees will consider all sources of 
management uncertainty within their respective fisheries and provide 
the technical basis, including any necessary control rules, along with 
a recommendation for the necessary ACT. NMFS finds this approach to be 
consistent with the NS1 guidelines that merely state that an ACT 
control rule may be utilized as part of the ACT-setting process. Thus, 
NMFS finds the Council's ACT approach wholly consistent with the NS1 
guidelines' intent, and sufficient to provide the Council, through its 
monitoring committees, a robust mechanism for categorizing and 
quantifying applicable management uncertainty.
    Comment 14: Several NGOs stated that the Omnibus Amendment is 
deficient because it does not establish sufficient bycatch and catch 
monitoring processes. Within these comments, one NGO stated that 
failure to propose more extensive catch monitoring programs violates 
NEPA. The commenters claim the Omnibus Amendment is fatally flawed, as 
a result, and must be disapproved.
    Response: NMFS disagrees that the Omnibus Amendment must consider 
new or additional at-sea or other catch monitoring programs. NMFS also 
disagrees that the Omnibus Amendment's approach for assessing total 
catch is insufficient and does not agree that the amendment needs to be 
disapproved based on the grounds raised by these comments. The Omnibus 
Amendment considering a reasonable range of alternatives to address the 
monitoring needs of the fisheries. Neither the MSA nor the NS1 
guidelines require real-time catch monitoring or discard controls as 
contemplated in the comment letters. Currently, such programs are 
beyond the scope of existing resources. The Omnibus Amendment did not 
explore these options as alternatives, as the alternatives would have 
been neither reasonable nor feasible.
    In lieu of monitoring total catch on a real-time basis, the Omnibus 
Amendment contemplates a two-part examination of the fisheries: 
Inseason monitoring of landings (through commercial dealer reports for 
commercial landings and MRIP for recreational landings) and post-
fishing year accounting of dead discards. The monitoring committees 
will consider the estimated discards for a given specification period 
(annual or multi-year) and recommend any necessary reductions for 
uncertainty associated with discard performance to the Council to 
establish ACT(s). The estimated discards will then be removed from the 
Council-adjusted ACT to set the landing level, by sector, to be 
monitored inseason. Following the completion of the fishing year, the 
final landings will be added to the re-estimated dead discards to 
provide total catch. If this total catch exceeds the ACL, AMs will be 
imposed as soon as possible, consistent with the Omnibus Amendment 
approach for the species in question.
    NMFS acknowledges that this accounting exercise to derive total 
catch contains some uncertainty, particularly if the discard estimates 
utilized to offset the ACT or to derive the landing limits before the 
fishery occurs are variable. However, this is largely why the Council 
elected to utilize ACTs, so that the likelihood of exceeding ACLs if 
changes in discard estimates occur could be mitigated. This process is 
consistent with NS1 guidance. While the Omnibus Amendment establishes a 
strong process to ensure the likelihood of exceeding ACLs is infrequent 
by requiring consideration of both scientific and management 
uncertainty, there are AMs that will be imposed if this does occur, a 
formal process for examining performance if ACLs are frequently 
exceeded, and no requirement that catch be set so that ACL is never 
exceeded. How robust discard estimates are also influences scientific 
uncertainty as imprecise fishery-related mortality can alter the 
perception of fishing mortality and stock size.
    NMFS considers that the process for catch accounting will be 
iterative as management under ACLs occurs over the next few years. The 
process may well require adjustments, and the descriptive nature of the 
Omnibus Amendment processes is such that the Council and NMFS have some 
flexibility to make modifications that improve the process and 
management such that advancements are realized and overfishing is 
prevented. In addition, should greater monitoring resources or systems 
become available, the Omnibus Amendment does not require modification 
to incorporate the information generated by such systems. The data 
could be utilized as soon as they become operational.
    Comment 15: One commenter alleged that the Omnibus Amendment fails 
to satisfy the MSA deadline of establishing ACLs and AMs by the 2011 
FY, particularly because the Omnibus Amendment establishes a process 
for setting catch, but does not actually provide specific limits for 
the 2011 FY.
    Response: NMFS asserts that the implementation of the final Omnibus 
Amendment before the end of the 2011 FY satisfies the MSA requirement.

[[Page 60613]]

    Comment 16: One commenter stated that the Omnibus Amendment must be 
disapproved because ACT will not leave a margin for management 
uncertainty and that ACTs are inadequate because they do not have AMs.
    Response: NMFS disagrees. The use of ACTs in the Omnibus Amendment 
is wholly consistent with NS1 guidelines. The NS1 guidelines do not 
require that ACL be set lower than ABC, nor that ACT be used. ACTs are 
not required in the MSA, but only ACLs and appropriate AMs. The 
Secretary may assume that, if OFL = ABC = ACL = ACT, overfishing will 
not be prevented, but the Council's process will likely include some 
reductions at either the OFL to ABC level for scientific uncertainty, 
at the ACL to ACT level for management uncertainty, or both. This 
provides a strong system to prevent overfishing, consistent with the 
NS1 guidelines.
    Under the Omnibus Amendment measures, the Council is expected to 
reduce catch from the ACL to the ACT to account for management 
uncertainty. In years when an ACT is exceeded but the ACL is not, the 
management buffer may be adjusted in subsequent years, but no AMs in 
the form of lb-for-lb payback of the ACT overage are required. If the 
ACL is exceeded in any year, AMs will be invoked as described in the 
Omnibus Amendment for the FMP and species in question. There is no 
requirement that lb-for-lb overage repayment AMs be triggered if ACTs 
are exceeded. However, there are AMs operative within the ACT as there 
will be closures when commercial and recreational landing limits are 
reached. As such, ACTs will be used as proactive measures, to reduce 
the likelihood that ACLs will be exceeded. The ACT is, in fact, itself 
an AM (Sec.  600.310(f)(2)(v)).
    Comment 17: One NGO stated that the Omnibus Amendment must be 
disapproved because NMFS's proposed AM measures are not an accurate 
reflection of the Council's intent. The commenters alleged that 
recreational sector fishery lb-for-lb overage repayments must occur in 
the year following the overage.
    Response: The commenter may have misinterpreted the description of 
the overage repayment system. The operation of the overage repayment 
system is clarified here and is consistent with the Council's intent.
    NMFS attempted to explain, in the proposed rule, that the data for 
both commercial and recreational landings and discards will not likely 
be available immediately following the FY conclusion. For example, when 
ACLs are set for the 2013 FY, the final commercial and recreational 
landings and discard information is not expected to be available until 
after the first quarter of 2014. Given that the specification process 
for 2014 will begin in mid-2013 and culminate in rulemaking for January 
1 implementation the last quarter of 2013, it will not be possible to 
make adjustments for any ACL overage when the initial 2014 
specifications are established.
    The Omnibus Amendment retains the existing commercial overage 
repayments that were in place prior to the development of ACLs. NMFS 
routinely makes adjustments to specifications for known commercial 
overages and will continue to do so in the Omnibus Amendment process. 
Using the prior example, if known commercial overages are available by 
October 31, 2013, NMFS can adjust the 2014 commercial specifications 
accordingly through rulemaking. Then, in late 2014, the totality of the 
2013 commercial FY data will be examined to ensure that any additional 
overages or adjustments resulting from incorporation of final 
commercial landings information, if needed, will be performed for the 
2015 commercial specifications. The system is configured so double 
counting does not occur, but, as the example illustrates, it is 
possible that commercial overage repayment AMs may occur 1 full year 
removed from the FY in which they occurred. As stated before, this is 
not new. Under the Omnibus Amendment, there will also be an examination 
of commercial catch data (i.e., landings + dead discards). This process 
may function similarly to the example or, using the example timeframe, 
may occur in 2014 for application to the 2015 FY for a 2013 catch 
overage of the ACL (i.e., dead discard caused overage of the ACL).
    Recreational fisheries have not been managed in a system analogous 
to the commercial example provided above. Landings data are not 
available in as timely a fashion as commercial data. Using the example 
years previously discussed, NMFS may only be able to evaluate 2013 
recreational landings through June 2013 during the 2014 specification 
rulemaking process. While it is possible that a recreational overage 
may have occurred by that date, historic data indicate such an 
occurrence should be rare. As a result, NMFS may not be able to make 
informed examination of 2013 recreational overages until after the 
first quarter in 2014. NMFS may make adjustments to the recreational 
harvest limit when this information becomes available, through the 
recreational management measures rulemaking, typically conducted in the 
first and second quarters. However, if the final data are not available 
until later in 2014, if there is no ongoing regulatory mechanism to 
adjust the recreational harvest limit and recreational measures 
concurrently or for other as of yet unforeseen reasons, NMFS may have 
to wait to adjust the 2015 FY recreational sector ACL during 2014 for 
an overage accrued in the 2013 recreational fishery.
    The Omnibus Amendment provides the flexibility in describing how 
AMs will function so that NMFS can ensure that any necessary 
adjustments will occur consistent with the data necessary to evaluate 
ACL performance. It is expected that these data systems and delivery 
timing may improve in the future. Should this be the case, the Omnibus 
Amendment provides flexibility for NMFS to modify the AM repayment 
process, as needed, without needing to amend the ACL process. NMFS 
considers that this system will function best if ACL overages are 
avoided by well-established sector ACLs, mitigating the need to trigger 
AMs all together. See response to comment 18 for additional 
information.
    Comment 18: One NGO commented that the description of the AM 
process indicates that adjustments, through overage repayments, will be 
made through the Council's specification process. The commenter states 
that the Omnibus Amendment must be disapproved for this reason, 
asserting that AMs must be automatic and non-discretionary.
    Response: This is an apparent misunderstanding by the commenter. As 
explained in the response to Comment 17, NMFS, not the Council, will 
make automatic lb-for-lb overage repayments for ACL overages through 
the specification rulemaking. The AMs are automatic and do not involve 
discretion on either NMFS's or the Council's part. For this reason, the 
AMs implemented by the Omnibus Amendment are consistent with the NS1 
guidelines.
    Comment 19: One commenter stated that the Omnibus Amendment must be 
disapproved because it does not consider catch outside its 
jurisdiction. The example cited was summer flounder, a Council-managed 
species, which is captured and landed in the Atlantic sea scallop 
fishery, managed by the New England Fishery Management Council. The 
commenter alleged that the Omnibus Amendment fails to consider catch 
from all sources and, thus, must be disapproved. The commenter also 
indicated that the Omnibus Amendment failed to adequately examine 
alternatives for sub-ACLs in examples such as the one

[[Page 60614]]

provided. In so doing, the commenter alleged that the Omnibus Amendment 
violates NEPA.
    Response: NMFS disagrees with the contention that the Omnibus 
Amendment's approach for addressing total catch is fatally flawed. All 
federally managed fish landed for commercial sale within the region, 
irrespective of whether the fish are captured in a Council-managed 
fishery or in a fishery managed by another Council or the Secretary, 
will be counted toward the total annual landings for that species. This 
method of accounting is not new, and will continue under the Omnibus 
Amendment. Similarly, all dead discards of a species such as summer 
flounder will be attributed to the total catch estimation of summer 
flounder. Thus, the Omnibus Amendment's system of catch accounting 
does, in fact, consider catch from all directed fishery and other 
sources. The NS1 guidelines do not require the establishment of sub-
ACLs for species captured incidentally in other directed fisheries. See 
response to comment 11 for additional information.
    Comment 20: One commenter alleged that the decisions made to 
implement the Omnibus Amendment are arbitrary, capricious, an abuse of 
discretion, and otherwise not in accordance with law and, as such, are 
a violation of the Administrative Procedure Act (APA) and must be set 
aside as unlawful. The commenter did not provide specific information 
in support of their general assertion that the APA had been violated by 
implementing the Omnibus Amendment.
    Response: NMFS disagrees. The Omnibus Amendments measures are in 
accordance with the requirements of NS1 guidelines and the MSA and, as 
such, are not arbitrary. The Omnibus Amendment measures were not 
impulsively derived or implemented; instead, a lengthy, transparent 
process was utilized by the Council, its committees, and the Fishery 
Management Action Team (FMAT) tasked with developing alternatives and 
measures. NMFS undertook all required elements of announcing the 
amendment and proposed rule availability for review and comment and is 
responding, in full, to all relevant comments provided on the amendment 
and proposed measures. Neither the Council nor NMFS has abused 
discretion in following the required development and implementation 
processes required for the amendment. NMFS is confident that the APA 
has not been violated in any manner and the Omnibus Amendment is being 
implemented consistent with applicable laws.

Changes and Clarifications From the Proposed Rule

    Atlantic bluefish. The process for deriving ACT and Total Allowable 
Landings (TAL) was clarified. The proposed rule correctly outlined the 
process required to derive ACT and TAL from the recommended ABC; 
however, additional language on where the commercial and recreational 
allocation shall be addressed was added for a more clear description. 
These changes are consistent with both the proposed rule and the 
Omnibus Amendment.
    Atlantic mackerel. As was noted in the Omnibus Amendment proposed 
rule, the Council took final action on Amendment 11 to the Atlantic 
Mackerel, Squids, and Butterfish FMP (Amendment 11) in October 2010 and 
NMFS published an Amendment 11 NOA and proposed rule on August 1, 2011 
(76 FR 45742). While the proposed rule for Amendment 11 does contain a 
proposed recreational fishery allocation for mackerel, the final 
approval decision and final rule for Amendment 11 measures will occur 
after the final Omnibus Amendment measures in this rule are effective. 
Therefore, the final Omnibus Amendment measures reflect the various 
Atlantic mackerel measures designed to function without a formal 
recreational allocation. If the final Amendment 11 measures, when 
approved, contain the recreational allocation for Atlantic mackerel, 
the final rule to implement Amendment 11 measures will also modify 
Omnibus Amendment measures, as needed.
    Butterfish. In the interim between deeming the proposed Omnibus 
Amendment regulations and this final rule, the Council initiated the 
process to develop 2012 specifications for the Atlantic Mackerel, 
Squids, and Butterfish FMP. During this process, the Council discovered 
that the method for deriving the butterfish cap in the Loligo fishery 
with respect to the OFL/ABC/ACT framework was not entirely clear in 
either the Omnibus Amendment document or the proposed regulations. The 
Council held discussion during its June 2011 meeting to clarify the 
intent of the butterfish cap to be derived as a percentage of the ACT 
rather than the ABC. Following this discussion, the Council provided a 
comment on the proposed rule to clarify how the butterfish cap should 
be devised under the OFL/ABC/ACT framework. NMFS agrees with the 
Council's clarification and is implementing, though this final rule, 
revisions to the butterfish regulations that are consistent with the 
Council-revised information.
    Summer flounder. In the interim between the publication of the NOA 
and Omnibus Amendment proposed rule, the 2011 recreational management 
measures were finalized (76 FR 38387, June 30, 201