Fisheries of the Northeastern United States; Northeast Multispecies Fishery Management Plan; Secretarial Amendment, 19138-19144 [2012-7710]

Download as PDF 19138 * * * accountability measures for the silver hake, red hake, and offshore hake stocks that are managed as a sub-set of the Northeast Multispecies Fishery Management Plan to meet the 2011 deadline in the Magnuson-Stevens Fishery Conservation and Management Act. * Issued on: March 23, 2012. David L. Strickland, Administrator. [FR Doc. 2012–7626 Filed 3–29–12; 8:45 am] BILLING CODE 4910–59–P DATES: DEPARTMENT OF COMMERCE 50 CFR Part 648 [Docket No. 110816505–2184–03] RIN 0648–BB39 Fisheries of the Northeastern United States; Northeast Multispecies Fishery Management Plan; Secretarial Amendment National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: This final rule implements a Secretarial Amendment to the Northeast Multispecies Fishery Management Plan to establish a mechanism for specifying annual catch limits and accountability measures for the small-mesh multispecies fishery beginning in fishing year 2012. This amendment is necessary because the New England Fishery Management Council has been delayed in implementing a mechanism to specify annual catch limits and sroberts on DSK5SPTVN1PROD with RULES VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 An environmental assessment (EA) was prepared for the Secretarial Amendment that describes the proposed action and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Secretarial Amendment, including the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Daniel Morris, Acting Regional Administrator, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also available online at http://www.nero.noaa.gov. FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, (978) 281–9218. SUPPLEMENTARY INFORMATION: ADDRESSES: National Oceanic and Atmospheric Administration SUMMARY: This rule is effective on April 30, 2012. Background The small-mesh multispecies complex is composed of five stocks of three species of hakes (northern silver hake, southern silver hake, northern red hake, southern red hake, and offshore hake), and the fishery is managed through a series of exemptions from the other provisions of the Northeast Multispecies PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 Fishery Management Plan (FMP). Amendment 19 to the FMP was initiated by the New England Fishery Management Council (Council) in 2009 to establish a mechanism for specifying annual catch limits (ACLs) and accountability measures (AMs) for the small-mesh multispecies fishery, as required by the 2007 reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. The Council postponed development of the amendment in order to include the results of an updated stock assessment in November 2010. Developing the amendment has been further delayed by the Council due to other pressing actions, and Amendment 19 is not scheduled to be implemented until October 2012, well past the Magnuson-Stevens Act’s deadline of 2011 for implementing ACLs and AMs. NMFS has determined that it is necessary and appropriate, under section 304(c)(1)(A) of the MagnusonStevens Act, to develop a Secretarial Amendment in order to bring the smallmesh multispecies fishery into compliance with the Magnuson-Stevens Act requirements concerning ACLs and AMs. A description of the steps NMFS took to comply with the MagnusonStevens Act requirements for implementing a Secretarial Amendment was included in the proposed rule published on December 23, 2011 (76 FR 80318) and is not repeated here. E:\FR\FM\30MRR1.SGM 30MRR1 ER30MR12.000</GPH> * Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations Final Measures Mechanism for Specifying Catch Limits and the Specification Process The Magnuson-Stevens Act requires that each FMP establish ‘‘a mechanism for specifying annual catch limits * * * at such a level that overfishing does not occur in the fishery, including measures to ensure accountability.’’ In order to do establish ACLs and AMs for the smallmesh multispecies fishery, the first step is to estimate the overfishing limit (OFL) for each stock. The OFL is the amount of catch above which overfishing is deemed to be occurring; that is, it is a status determination criterion for overfishing. It is an annual limit derived as the product of current exploitable biomass and the current rate of fishing, after taking into account the variance of each factor. To calculate the OFL for each stock, the Council’s Small-Mesh Multispecies Plan Development Team (PDT) derived a distribution of OFLs for each species; each OFL is equal to the 50th percentile of that distribution. The 3-year moving average biomass for silver hake is estimated using the fall trawl survey and the 3-year moving average biomass estimate for red hake is estimated using the spring trawl survey, based on guidance from the Council’s Scientific and Statistical Committee (SSC) and the November 2010 stock assessment. No reliable estimates for offshore hake are available. For fishing years 2012–2014, the OFLs are as follows: TABLE 1—FISHING YEARS 2012–2014 OFLS OFL (mt) Northern Red Hake .................. Northern Silver Hake ................ Southern Red Hake .................. Southern Silver Hake ............... 19139 The second step in establishing ACLs is to account for uncertainty in the OFL estimate by estimating the acceptable biological catch (ABC). ABC is the level of catch that accounts for scientific uncertainty in the estimate of the OFL and any other scientific uncertainty. Based on guidance from the SSC, the ABCs are set equal to the 40th percentile of the OFL distribution for both red hake stocks, and the 25th percentile for both silver hake stocks (Table 2). In order to account for offshore hake, which are caught incidentally in the southern silver hake fishery and are marketed together as ‘‘whiting,’’ the southern silver hake ABC is increased by 4 percent. 314 24,840 3,448 62,301 TABLE 2—FISHING YEARS 2012–2014 ABCS OFL (mt) Northern Red Hake .......................................................................... Northern Silver Hake ....................................................................... Southern Red Hake ......................................................................... Southern Whiting * ........................................................................... Percentile of OFL distribution 314 24,840 3,448 62,301 Percent of OFL 40th 25th 40th 25th 89.17 53.05 94.52 54.48 ABC 280 13,177 3,259 33,940 * Southern Whiting ABC = Silver Hake 25th percentile of OFL (32,635 mt) + 4% (1,305 mt). The final step in setting the ACLs, after estimating OFL and ABC, is to take into account any uncertainty in the ability of managers to effectively implement the recommended catch levels. The Council has recommended that ACLs for the small-mesh multispecies fishery be set equal to 95 percent of the corresponding ABC to account for management uncertainty. The mechanism to establish ACLs for the small-mesh multispecies fishery results in four ABCs (northern red hake, northern silver hake, southern red hake, and southern whiting), set below their respective OFLs to account for scientific uncertainty, and four corresponding ACLs, set below ABC to account for management uncertainty, where ACL = 95 percent ABC (Table 3.) TABLE 3—FISHING YEARS 2012–2014 ABCS AND ACLS FOR SMALL-MESH MULTISPECIES ABC (mt) Northern Red Hake .......................................................................................................................................... Northern Silver Hake ....................................................................................................................................... Southern Red Hake ......................................................................................................................................... Southern Whiting ............................................................................................................................................. 280 13,177 3,259 33,940* ACL (95% of ABC) (mt) 266 12,518 3,096 32,243 sroberts on DSK5SPTVN1PROD with RULES * Southern Whiting ABC = Silver Hake 25th percentile of OFL (32,635 mt) + 4% (1,305 mt). This final rule implements total allowable landings (TAL) on a stock area basis, with southern silver and offshore hake combined. This results in four TALs (Table 4) that relate directly to the ACLs recommended by the SSC VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 and the Council. Discards and estimated state landings are deducted from the ACLs, and stock area TALs are used as the management limit. At its September 2011 meeting, the Council recommended a 3-percent allowance for PO 00000 Frm 00081 Fmt 4700 Sfmt 4700 state landings. The Council also recommended using a discard estimate based on the average discards from 2008–2010 for all stocks. E:\FR\FM\30MRR1.SGM 30MRR1 19140 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations TABLE 4—FISHING YEAR 2012–2014 ACLS AND TALS Northern Red Hake ACL ...................................................................................................... Discard % (2008–2010) ....................................................................... Discards (mt) ........................................................................................ State Landings (3% of ACL—Discards) .............................................. Federal TAL (mt) .................................................................................. Federal TAL (lb) ................................................................................... After the publication of the proposed rule, the Council’s PDT corrected a calculation error in the information provided to the Whiting Oversight Committee, upon which NMFS based the measures in the proposed rule. The PDT inadvertently used the 2007–2009 discard rates instead of the 2008–2010 discard rates as was intended by the Council. Correcting this error results in a slight decrease in the TALs for both northern silver hake and southern whiting (southern silver hake plus offshore hake), a slight increase in the TAL for southern red hake, and a relatively significant decrease in the TAL for northern red hake. The northern red hake TAL set by this rule is the only TAL that is close to or below recent landings levels: Based on the updated information, the discard rate for northern red hake changed from 58 percent to 65 percent, which reduced the northern red hake TAL from the proposed 108 mt to 90.3 mt. The Whiting Oversight Committee and the Council did not object to correcting the data for Amendment 19, and do not objecting to doing the same in the Secretarial Amendment. Specifications Process Specifications will be set on a 3-year cycle, starting with the first year of implementation of the Secretarial Amendment. This process will be used to update the OFLs, ABCs, ACLs, and TALs based on the most recent available information using the calculations described above. Data expected to be used in the specifications setting process include, but are not limited to, new survey biomass indices, reported landings, estimated discards, and estimates of state-waters landings. The Council, the PDT, and the Whiting Oversight Committee will Northern Silver Hake Southern Red Hake 266 mt .............. 65% .................. 173 mt .............. 2.8 mt ............... 90.3 mt ............. 199,077.4 lb ..... 12,518 mt ......... 26% .................. 3,255 mt ........... 278 mt .............. 8,985 mt ........... 19,809,243 lb ... 3,096 mt ........... 56% .................. 1,718 mt ........... 42 mt ................ 1,336 mt ........... 2,945,376 lb ...... monitor the status of the small-mesh multispecies fishery and resource. The Small-Mesh Multispecies PDT will meet to review the status of the stocks and the fishery. Based on this review, the PDT will report to the Council any changes or new information about the smallmesh multispecies stocks and/or fishery, and the PDT should recommend whether the specifications for the upcoming year(s) need to be modified. If necessary, the PDT will provide advice and recommendations to the Whiting Oversight Committee and the Council regarding the need to adjust measures for the small-mesh multispecies fishery to better achieve the FMP’s objectives. The PDT’s recommendations will include the following information: OFL and ABC estimates for the next 3 fishing years, based on the control rules; ACLs that are set equal to 95 percent of the corresponding ABC; TALs that are calculated using an estimate of discards based on the most recent 3-year moving average for which data are available and an appropriate estimate of state-waters landings; an evaluation of catches compared to the ABCs in recent years; and any other measures that the PDT determines may be necessary to successfully implement the ACL framework, including, but not limited to, adjustments to the management uncertainty buffer between ABC and ACL. The PDT will provide these recommendations to the SSC for review. The SSC will either approve the PDT’s recommendations or provide alternative recommendations to the Council. The Council will then consider the SSC’s and PDT’s recommendations and make a decision on the specifications for the next 3 fishing years. The Council must establish ACLs that are equal to or lower Southern Whiting 32,295 mt. 13%. 4,198 mt. 842 mt. 27,255 mt. 60,086,990 lb. than the SSC’s recommended ABCs. Once the Council has approved ACLs, they will be submitted to NMFS for approval and implementation. After receiving the Council’s ACLs, NMFS will review the recommendations and implement the ACLs in a manner consistent with the Administrative Procedure Act, if it is determined that the ACLs are consistent with applicable law. If the ACLs are determined to be inconsistent with applicable law, NMFS may publish alternative specifications that do not exceed the SSC’s recommendations and are consistent with applicable law. If new ACLs are not implemented for the start of the new specifications cycle, the old ACLs will remain in effect until they are replaced. Accountability Measures This final rule implements both a proactive (in-season) and a reactive (post-season) AM framework for the small-mesh multispecies fishery. NMFS intends for the two AMs to complement each other and to work jointly to ensure that the catch limits are not exceeded, and, if they are, to mitigate the potential harm to the small-mesh multispecies stocks. In-Season AM: Incidental Possession Limit Trigger This final rule implements an AM that will reduce the possession of a particular stock to an incidental level when a trigger limit for that stock’s TAL is projected to be reached. Under this approach, even if the TAL is exceeded, the possession limit will remain at the incidental level until the end of the fishing year. Based on a review of recent data and recommendations from the Council, this final rule implements the following incidental limits and triggers (Table 5). sroberts on DSK5SPTVN1PROD with RULES TABLE 5—INCIDENTAL POSSESSION LIMITS AND TRIGGERS % of TAL Red Hake ......................................................................................................................... Silver and Offshore Hake, Combined .............................................................................. VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 E:\FR\FM\30MRR1.SGM Incidental limit 90 90 400 lb ................ 1,000 lb ............ 30MRR1 181.44 kg 907.18 kg Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations sroberts on DSK5SPTVN1PROD with RULES Post-Season AM: Pound-for-Pound Payback of an ACL Overage The post-season AM requires NMFS, through the Northeast Regional Administrator, to deduct from a subsequent year’s ACL any overage of a stock’s ACL in a given year. ACL overages that occur in one year would be deducted from the ACL in the second year after the overage occurred (i.e., year 3). The data that are necessary to determine if an ACL was exceeded is not available until sometime the following year. Implementing the AM in year 3 is appropriate for the small-mesh multispecies fishery because this fishery in the northern area is restricted by the groundfish regulations in area and season. An in-season adjustment (i.e., in year 2) to an ACL might result in some exemption areas opening, while others would not. This also allows vessel owners the opportunity to prepare for the reduction with ample time to adjust their business plans. Council Actions Since the publication of the proposed rule for the Secretarial Amendment, the Council has preliminarily selected preferred measures for the purpose of public hearings on a draft of Amendment 19. Most of the measures being implemented in the Secretarial Amendment were also the Council’s preferred alternatives, with three exceptions. First, the Council likely will propose a post-season AM that would reduce the in-season possession limit trigger by the same percentage by which the ACL was exceeded, instead of the pound-for-pound payback of an ACL overage implemented by this final rule. For example, if an ACL is exceeded by 5 percent, the Council may propose in Amendment 19 that the trigger would be reduced to 85 percent for the next fishing year. Second, the Council may propose in Amendment 19 an in-season AM incidental possession limit for silver hake and offshore hake, combined, of 2,000 lb (907.18 kg), instead of the 1,000-lb (453.59 kg), combined, in-season possession limit trigger implemented by this final rule. The third measure that differs between the Council’s preliminary draft of Amendment 19 and the Secretarial Amendment is for the southern stock area quota framework. This final rule establishes an annual, stock-wide quota for the southern stock area. The Council may propose in Amendment 19 an annual, stock-wide quota that would switch to a quarterly, stock-wide quota in a subsequent fishing year if twothirds of a southern stock area quota is harvested in a year. None of these VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 alternatives were analyzed in the Secretarial Amendment. The Council did not provide any comments on the Secretarial Amendment; therefore, no changes from the proposed rule have been made based on the Council’s work on Amendment 19. Comments and Responses One comment was received from an individual expressing support for the Secretarial Amendment and increased management of the small-mesh multispecies fishery in general. A second comment simply stated that ‘I’m not sure this is a good idea,’ without further explanation. For the reasons stated above, this rule is necessary and appropriate to bring the small-mesh multispecies fishery into compliance with the Magnuson-Stevens Act requirements concerning ACLs and AMs. Changes From the Proposed Rule As described above, we are implementing a change in the TAL calculations, based on updated information from the Council’s PDT. A technical correction to the regulations at 50 CFR 648.88, and the corresponding prohibition at § 648.14(k)(15)(ii)(C) is also being implemented through this rule. This change is necessary to remove the confusion regarding which species a vessel issued a ‘‘non-regulated’’ Northeast multispecies permit may land. Specifically, there may be confusion regarding ocean pout, which is not, by definition, a ‘‘regulated species,’’ but is not one of the species that a vessel issued a ‘‘non-regulated’’ permit may land. Classification The Administrator, Northeast Region, NMFS, determined that the Secretarial Amendment to the Northeast Multispecies FMP is necessary for conservation and management of the small-mesh multispecies fishery and that it is consistent with the MagnusonStevens Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. Pursuant to section 604 of the Regulatory Flexibility Act (RFA), this final rule includes a FRFA in support of the Secretarial Amendment analyzing the rule’s impact on small entities. This FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS’ responses to those comments, relevant analyses in the Amendment and its EA, and a summary of the analyses completed to support the PO 00000 Frm 00083 Fmt 4700 Sfmt 4700 19141 action implemented through this rule. A copy of the analyses done in the Amendment and EA is available from the Northeast Regional Administrator (see ADDRESSES). A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in the preamble to the proposed rule and this final rule and is not repeated here. A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency’s Assessment of Such Issues, and a Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments Two comments were received on the proposed rule and the amendment. However, neither addressed the IRFA or economic analysis contained in the Secretarial Amendment, and neither resulted in any changes to the rule. Description and Estimate of Number of Small Entities to Which the Final Rule Will Apply The Small Business Administration (SBA) considers commercial fishing entities (NAICS code 114111) to be small entities if they have no more than $4 million in annual sales, while the size standard for charter/party operators (part of NAICS code 487210) is $7 million in sales. The participants in the commercial small-mesh multispecies fishery are those vessels issued limited or open access Northeast multispecies permits that land any of the small-mesh multispecies. Because any vessel at any time may be issued an open access Northeast multispecies permit, it is difficult to determine how many vessels or owners will participate in this fishery in a given year. Although some firms own more than one vessel, available data make it difficult to reliably identify ownership control over more than one vessel. For this analysis, the number of vessels landing at least 1 lb (0.45 kg) of any of the small-mesh multispecies is considered to be a maximum estimate of the number of small business entities. The average number of permitted vessels landing at least 1 lb (0.45 kg) of silver hake or red hake from 2005–2010 was 562 vessels per year. Thus, all of the entities (fishing vessels) affected by this action are considered small entities under the SBA size standards for small fishing businesses ($4.0 million in annual gross sales). Therefore, there are no disproportionate effects on small versus large entities. E:\FR\FM\30MRR1.SGM 30MRR1 19142 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations Information on costs in the fishery is not readily available and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability. In general, the economic impacts from the measures implemented in the Secretarial Amendment are neutral. There may be slightly negative impacts if the inseason or post-season AMs are triggered. These measures would reduce the amount of fish available to the fleet, which in turn would reduce revenues. On the other hand, there are likely to be positive long-term impacts on the fishery, as these measures are intended to ensure that the sustainable harvesting of the small-mesh multispecies stocks. These effects would be evaluated at the time such measures, if necessary, are implemented. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements There are no compliance requirements associated with this final rule implementing the Secretarial Amendment. This final rule does not duplicate, overlap, or conflict with other Federal rules. sroberts on DSK5SPTVN1PROD with RULES Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes The management measures implemented in the Secretarial Amendment were developed to improve the overall management of the smallmesh multispecies fishery by establishing ACLs and AMs aimed at preventing overfishing. None of the measures being implemented in the Secretarial Amendment reduce fishing opportunities or flexibility. The TALs are well-above recent landings levels, except for northern red hake. These measures also promote efficiency within the fishery or reduce waste associated with regulatory discards by establishing incidental possession limits that take into account the existing behavior of the fleet and setting incidental possession limits at or above the current, marketdriven incidental level. Therefore, by implementing management measures that provide flexibility and efficiency and reduce waste, NMFS has taken the steps necessary to minimize the impacts of this action on small entities consistent with the stated objectives of applicable statutes. VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of permits for the Northeast multispecies fishery. The guide and this final rule will be available upon request, and posted on the Northeast Regional Office’s Web site at www.nero.noaa.gov. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: March 27, 2012. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 648 is 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. 1. In § 648.14, paragraph (k)(15)(ii)(C) is revised to read as follows: ■ § 648.14 Prohibitions. * * * * * (k) * * * (15) * * * (ii) * * * (C) Open access NE multispecies (non-regulated species permit). It is unlawful for any owner or operator of a vessel issued a valid open access NE multispecies permit to possess or land any regulated species, as defined in § 648.2, or to violate any applicable provisions of § 648.88, unless otherwise specified in §§ 648.14, 648.86, or 648.88. * * * * * ■ 2. In § 648.80, paragraphs (a)(8)(iii) and (a)(16)(iii) are revised to read as follows: PO 00000 Frm 00084 Fmt 4700 Sfmt 4700 § 648.80 NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing. * * * * * (a) * * * (8) * * * (iii) For exemptions allowing no incidental catch of regulated species, as defined under paragraph (a)(8)(i) of this section, the NEFMC may recommend to the Regional Administrator, through the framework procedure specified in § 648.90(c), additions or deletions to exemptions for fisheries, either existing or proposed, for which there may be insufficient data or information for the Regional Administrator to determine, without public comment, percentage catch of regulated species. For exemptions allowing incidental catch of regulated species, as defined under paragraph (a)(8)(ii) of this section, the NEFMC may recommend to the Regional Administrator, through the framework procedure specified in § 648.90(c), additions or deletions to exemptions for fisheries, either existing or proposed, for which there may be insufficient data or information for the Regional Administrator to determine, without public comment, the risk that this exemption would result in a targeted regulated species fishery, the extent of the fishery in terms of time and area, and the possibility of expansion in the fishery. * * * * * (16) * * * (iii) Annual review. On an annual basis, the Groundfish PDT will review data from this fishery, including sea sampling data, to determine whether adjustments are necessary to ensure that regulated species bycatch remains at a minimum. If the Groundfish PDT recommends adjustments to ensure that regulated species bycatch remains at a minimum, the Council may take action prior to the next fishing year through the framework adjustment process specified in § 648.90(c), and in accordance with the Administrative Procedure Act. * * * * * ■ 3. In § 648.86, paragraph (d)(4) is added to read as follows: § 648.86 NE Multispecies possession restrictions. * * * * * (d) * * * (4) In-season adjustment of smallmesh multispecies possession limits. If the Regional Administrator projects that 90 percent of a stock area TAL, as defined in § 648.90(b)(3), has been landed, the Regional Administrator shall reduce the possession limit of that E:\FR\FM\30MRR1.SGM 30MRR1 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations stock described in paragraphs (d)(4)(i) and (ii) of this section, for the remainder of the fishing year through notice consistent with the Administrative Procedure Act, unless such a reduction in the possession limit would be expected to prevent the TAL from being reached. (i) Red hake. If a possession limit reduction is needed for a stock area, the incidental possession limit for red hake in that stock area will be 400 lb (181.44 kg) for the remainder of the fishing year. (ii) Silver hake and offshore hake. If a possession limit reduction is needed for a stock area, the incidental possession limit for silver hake and offshore hake, combined, in that stock area will be 1,000 lb (453.59 kg) for the remainder of the fishing year. * * * * * ■ 4. In § 648.88, paragraph (d) is revised to read as follows: § 648.88 Multispecies open access permit restrictions. * * * * * (d) Non-regulated NE multispecies permit. A vessel issued a valid open access non-regulated NE multispecies permit may possess and land one Atlantic halibut and unlimited amounts of the other non-regulated NE multispecies, unless otherwise restricted by § 648.86. The vessel is subject to restrictions on gear, area, and time of fishing specified in § 648.80 and any other applicable provisions of this part. ■ 5. In § 648.90, the introductory text is revised, and paragraphs (b) and (c)(1)(ii) are revised to read as follows: sroberts on DSK5SPTVN1PROD with RULES § 648.90 NE multispecies assessment, framework procedures and specifications, and flexible area action system. For the NE multispecies framework specification process described in this section, the regulated species and ocean pout biennial review is considered a separate process from the small-mesh species annual review, as described in paragraphs (a)(2) and (b)(1), respectively, of this section. In addition, the process for specifying ABCs and associated ACLs for regulated species and ocean pout, as described in paragraph (a)(4) of this section, is considered a separate process from the small-mesh species ABC and ACL process described in paragraph (b)(2) of this section. * * * * * (b) Small-mesh multispecies—(1) Three-year specifications process, annual review, and Stock Assessment and Fishery Evaluation. The Council will specify on at least a 3-year basis the OFL, ABC, ACLs, and TALs for each VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 small-mesh multispecies stock in accordance with the following process. (i) At least every 3 years, based on the annual review, described below in paragraph (b)(3) of this section, and/or the SAFE Report described in paragraph (b)(4) of this section, recommendations for ABC from the Scientific and Statistical Committee (SSC), and any other relevant information, the SmallMesh Multispecies PDT will recommend to the Whiting Oversight Committee and Council specifications including the OFL, ABC, ACL and TAL for each small-mesh multispecies stock the following specifications for a period of at least 3 years. The Small-Mesh Multispecies PDT and the Council will follow the process in paragraph (b)(2) of this section for setting these specifications. (ii) The Small-Mesh Multispecies PDT, after reviewing the available information on the status of the stock and the fishery, may recommend to the Council any measures necessary to assure that the specifications will not be exceeded, as well as changes to the appropriate specifications. (iii) Taking into account the annual review and/or SAFE Report described in paragraph (b)(2) of this section, the advice of the SSC, and any other relevant information, the Small-Mesh Multispecies PDT may also recommend to the Whiting Oversight Committee and Council changes to stock status determination criteria and associated thresholds based on the best scientific information available, including information from peer-reviewed stock assessments of small-mesh multispecies. These adjustments may be included in the Council’s specifications for the small-mesh multispecies fishery. (iv) Council recommendation. (A) The Council will review the recommendations of the Small-Mesh Multispecies PDT, Whiting Oversight Committee, and SSC, any public comment received thereon, and any other relevant information, and make a recommendation to the Regional Administrator on appropriate specifications and any measures necessary to assure that the specifications will not be exceeded. (B) The Council’s recommendation must include supporting documentation, as appropriate, concerning the environmental, economic, and social impacts of the recommendations. The Regional Administrator will consider the recommendations and publish a rule in the Federal Register proposing specifications and associated measures, consistent with the Administrative Procedure Act. PO 00000 Frm 00085 Fmt 4700 Sfmt 4700 19143 (C) The Regional Administrator may propose specifications different than those recommended by the Council. If the specifications published in the Federal Register differ from those recommended by the Council, the reasons for any differences must be clearly stated and the revised specifications must satisfy the criteria set forth in this section, the FMP, and other applicable laws. (D) If the final specifications are not published in the Federal Register for the start of the fishing year, the previous year’s specifications will remain in effect until superseded by the final rule implementing the current year’s specifications, to ensure that there is no lapse in regulations while new specifications are completed. (2) Process for specifying ABCs, ACLs and TALs. The Small-Mesh Multispecies PDT will calculate the OFL and ABC values for each small-mesh multispecies stock based on the control rules established in the FMP. These calculations will be reviewed by the SSC, guided by terms of reference developed by the Council. The ACLs and TALs will be calculated based on the SSC’s approved ABCs, as specified in paragraphs (a)(2)(i)(A) through (C), and (a)(2)(ii)(A) through (C) of this section. (i) Red hake—(A) ABCs. The Council’s SSC will recommend an ABC to the Council for both the northern and southern stocks of red hake. The red hake ABCs are reduced from the OFLs based on an adjustment for scientific uncertainty as specified in the FMP; the ABCs must be less than or equal to the OFL. (B) ACLs. The red hake ACLs are equal to 95 percent of the corresponding ABCs. (C) TALs. The red hake TALs are equal to the ACLs minus a discard estimate based on the most recent 3 years of data. The red hake TALs are then reduced by 3 percent to account for red hake landings that occur in state waters. (ii) Silver and Offshore Hake—(A) ABCs. The Council’s SSC will recommend an ABC to the Council for both the northern and southern stocks of silver hake. The ABC for the southern stock of silver hake will be increased by 4 percent to account for catch of offshore hake. The combined silver hake and offshore hake ABC in the southern area will be the southern whiting ABC. The silver hake and whiting ABCs are reduced from the OFLs based on an adjustment for scientific uncertainty as specified in the FMP; the ABCs must be less than or equal to the OFLs. E:\FR\FM\30MRR1.SGM 30MRR1 sroberts on DSK5SPTVN1PROD with RULES 19144 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations (B) ACLs. The northern silver hake and southern whiting ACLs are equal to 95 percent of the ABCs. (C) TALs. The northern silver hake and southern whiting TALs are equal to the northern silver hake and southern whiting ACLs minus a discard estimate based on the most recent 3 years of data. The northern silver hake and southern whiting TALs are then reduced by 3 percent to account for silver hake and offshore hake landings that occur in state waters. (3) Annual Review. (i) The SmallMesh Multispecies PDT will meet at least once annually to review the status of the stock and the fishery and the adequacy of the 3-year specifications. Based on such review, the PDT will provide a report to the Council on any changes or new information about the small-mesh multispecies stocks and/or fishery, and it will recommend whether the specifications for the upcoming year(s), established pursuant to paragraph (b)(1) of this section, need to be modified. At a minimum, this review should include a review of at least the following data, if available: Commercial catch data; current estimates of fishing mortality and catch-per-unit-effort (CPUE); discards; stock status; recent estimates of recruitment; virtual population analysis results and other estimates of stock size; sea sampling, port sampling, and survey data or, if sea sampling data are unavailable, length frequency information from port sampling and/or surveys; impact of other fisheries on the mortality of smallmesh multispecies; and any other relevant information. (ii) If new and/or additional information becomes available, the Small-Mesh Multispecies PDT will consider it during this annual review. Based on this review, the Small-Mesh Multispecies PDT will provide guidance to the Whiting Oversight Committee and the Council regarding the need to adjust measures for the small-mesh multispecies fishery to better achieve the FMP’s objectives. After considering this guidance, the Council may submit to NMFS its recommendations for changes to management measures, as appropriate, through the specifications process described in this section, the process specified in paragraph (c) of this section, or through an amendment to the FMP. (4) SAFE Report. (i) The Small-Mesh Multispecies PDT will prepare a SAFE Report at least every 3 years. Based on the SAFE Report, the Small-Mesh Multispecies PDT will develop and present to the Council recommended specifications as defined in paragraph (a) of this section for up to 3 fishing VerDate Mar<15>2010 15:54 Mar 29, 2012 Jkt 226001 years. The SAFE Report will be the primary vehicle for the presentation of all updated biological and socioeconomic information regarding the small-mesh multispecies fishery. The SAFE Report will provide source data for any adjustments to the management measures that may be needed to continue to meet the goals and objectives of the FMP. (ii) In any year in which a SAFE Report is not completed by the SmallMesh Multispecies PDT, the annual review process described in paragraph (a) of this section will be used to recommend any necessary adjustments to specifications and/or management measures in the FMP. (5) Accountability measures for the small-mesh multispecies fishery—(i) Inseason adjustment of possession limits. If the Regional Administrator projects that 90 percent of a stock area TAL, as defined in § 648.90(b)(3), has been landed, the Regional Administrator shall reduce the possession limit of that stock to the incidental level, as specified in § 648.86(d)(4), for the remainder of the fishing year through notice consistent with the Administrative Procedure Act, unless such a reduction in the possession limit would be expected to prevent the TAL from being reached. (ii) Post-season adjustment for an overage. If NMFS determines that a small-mesh multispecies ACL was exceeded in a given fishing year, the exact amount of the landings overage will be deducted, as soon as is practicable, from a subsequent single fishing year’s ACL for that stock, through notification consistent with the Administrative Procedure Act. (c) * * * (1) * * * (ii) Adjustment process for whiting DAS. The Council may develop recommendations for a whiting DAS effort reduction program through the framework process outlined in paragraph (c) of this section only if these options are accompanied by a full set of public hearings that span the area affected by the proposed measures in order to provide adequate opportunity for public comment. * * * * * [FR Doc. 2012–7710 Filed 3–29–12; 8:45 am] BILLING CODE 3510–22–P PO 00000 Frm 00086 Fmt 4700 Sfmt 4700 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 111213751–2102–02] RIN 0648–XB138 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod for American Fisheries Act Catcher/ Processors Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. AGENCY: NMFS is prohibiting directed fishing for Pacific cod by American Fisheries Act (AFA) trawl catcher/ processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the B season allowance of the 2012 Pacific cod total allowable catch specified for AFA trawl catcher/processors in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), April 1, 2012, through 1200 hrs, A.l.t., June 10, 2012. FOR FURTHER INFORMATION CONTACT: Obren Davis, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The B season allowance of the 2012 Pacific cod total allowable catch (TAC) specified for AFA trawl catcher/ processors in the BSAI is 1,340 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012). In accordance with § 679.20(d)(1)(i) and (d)(1)(ii)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the B season allowance of the 2012 Pacific cod TAC allocated to AFA trawl catcher/processors in the BSAI will be taken as incidental catch in the directed fishing for other species. Therefore, the SUMMARY: E:\FR\FM\30MRR1.SGM 30MRR1

Agencies

[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19138-19144]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7710]


=======================================================================
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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110816505-2184-03]
RIN 0648-BB39


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery Management Plan; Secretarial Amendment

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

ACTION: Final rule.

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

SUMMARY: This final rule implements a Secretarial Amendment to the 
Northeast Multispecies Fishery Management Plan to establish a mechanism 
for specifying annual catch limits and accountability measures for the 
small-mesh multispecies fishery beginning in fishing year 2012. This 
amendment is necessary because the New England Fishery Management 
Council has been delayed in implementing a mechanism to specify annual 
catch limits and accountability measures for the silver hake, red hake, 
and offshore hake stocks that are managed as a sub-set of the Northeast 
Multispecies Fishery Management Plan to meet the 2011 deadline in the 
Magnuson-Stevens Fishery Conservation and Management Act.

DATES: This rule is effective on April 30, 2012.

ADDRESSES: An environmental assessment (EA) was prepared for the 
Secretarial Amendment that describes the proposed action and other 
considered alternatives, and provides an analysis of the impacts of the 
proposed measures and alternatives. Copies of the Secretarial 
Amendment, including the EA and the Initial Regulatory Flexibility 
Analysis (IRFA), are available on request from Daniel Morris, Acting 
Regional Administrator, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. These documents are also available online 
at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, 
(978) 281-9218.

SUPPLEMENTARY INFORMATION:

Background

    The small-mesh multispecies complex is composed of five stocks of 
three species of hakes (northern silver hake, southern silver hake, 
northern red hake, southern red hake, and offshore hake), and the 
fishery is managed through a series of exemptions from the other 
provisions of the Northeast Multispecies Fishery Management Plan (FMP). 
Amendment 19 to the FMP was initiated by the New England Fishery 
Management Council (Council) in 2009 to establish a mechanism for 
specifying annual catch limits (ACLs) and accountability measures (AMs) 
for the small-mesh multispecies fishery, as required by the 2007 
reauthorization of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. The 
Council postponed development of the amendment in order to include the 
results of an updated stock assessment in November 2010. Developing the 
amendment has been further delayed by the Council due to other pressing 
actions, and Amendment 19 is not scheduled to be implemented until 
October 2012, well past the Magnuson-Stevens Act's deadline of 2011 for 
implementing ACLs and AMs. NMFS has determined that it is necessary and 
appropriate, under section 304(c)(1)(A) of the Magnuson-Stevens Act, to 
develop a Secretarial Amendment in order to bring the small-mesh 
multispecies fishery into compliance with the Magnuson-Stevens Act 
requirements concerning ACLs and AMs. A description of the steps NMFS 
took to comply with the Magnuson-Stevens Act requirements for 
implementing a Secretarial Amendment was included in the proposed rule 
published on December 23, 2011 (76 FR 80318) and is not repeated here.

[[Page 19139]]

Final Measures

Mechanism for Specifying Catch Limits and the Specification Process

    The Magnuson-Stevens Act requires that each FMP establish ``a 
mechanism for specifying annual catch limits * * * at such a level that 
overfishing does not occur in the fishery, including measures to ensure 
accountability.'' In order to do establish ACLs and AMs for the small-
mesh multispecies fishery, the first step is to estimate the 
overfishing limit (OFL) for each stock. The OFL is the amount of catch 
above which overfishing is deemed to be occurring; that is, it is a 
status determination criterion for overfishing. It is an annual limit 
derived as the product of current exploitable biomass and the current 
rate of fishing, after taking into account the variance of each factor. 
To calculate the OFL for each stock, the Council's Small-Mesh 
Multispecies Plan Development Team (PDT) derived a distribution of OFLs 
for each species; each OFL is equal to the 50th percentile of that 
distribution. The 3-year moving average biomass for silver hake is 
estimated using the fall trawl survey and the 3-year moving average 
biomass estimate for red hake is estimated using the spring trawl 
survey, based on guidance from the Council's Scientific and Statistical 
Committee (SSC) and the November 2010 stock assessment. No reliable 
estimates for offshore hake are available.
    For fishing years 2012-2014, the OFLs are as follows:

                  Table 1--Fishing Years 2012-2014 OFLs
------------------------------------------------------------------------
                                                              OFL  (mt)
------------------------------------------------------------------------
Northern Red Hake..........................................          314
Northern Silver Hake.......................................       24,840
Southern Red Hake..........................................        3,448
Southern Silver Hake.......................................       62,301
------------------------------------------------------------------------

    The second step in establishing ACLs is to account for uncertainty 
in the OFL estimate by estimating the acceptable biological catch 
(ABC). ABC is the level of catch that accounts for scientific 
uncertainty in the estimate of the OFL and any other scientific 
uncertainty. Based on guidance from the SSC, the ABCs are set equal to 
the 40th percentile of the OFL distribution for both red hake stocks, 
and the 25th percentile for both silver hake stocks (Table 2). In order 
to account for offshore hake, which are caught incidentally in the 
southern silver hake fishery and are marketed together as ``whiting,'' 
the southern silver hake ABC is increased by 4 percent.

                                      Table 2--Fishing Years 2012-2014 ABCs
----------------------------------------------------------------------------------------------------------------
                                                              Percentile of
                                              OFL  (mt)     OFL distribution   Percent of OFL          ABC
----------------------------------------------------------------------------------------------------------------
Northern Red Hake.......................               314              40th             89.17               280
Northern Silver Hake....................            24,840              25th             53.05            13,177
Southern Red Hake.......................             3,448              40th             94.52             3,259
Southern Whiting *......................            62,301              25th             54.48           33,940
----------------------------------------------------------------------------------------------------------------
* Southern Whiting ABC = Silver Hake 25th percentile of OFL (32,635 mt) + 4% (1,305 mt).

    The final step in setting the ACLs, after estimating OFL and ABC, 
is to take into account any uncertainty in the ability of managers to 
effectively implement the recommended catch levels. The Council has 
recommended that ACLs for the small-mesh multispecies fishery be set 
equal to 95 percent of the corresponding ABC to account for management 
uncertainty. The mechanism to establish ACLs for the small-mesh 
multispecies fishery results in four ABCs (northern red hake, northern 
silver hake, southern red hake, and southern whiting), set below their 
respective OFLs to account for scientific uncertainty, and four 
corresponding ACLs, set below ABC to account for management 
uncertainty, where ACL = 95 percent ABC (Table 3.)

      Table 3--Fishing Years 2012-2014 ABCs and ACLs for Small-Mesh
                              Multispecies
------------------------------------------------------------------------
                                                          ACL  (95% of
                                          ABC  (mt)        ABC)  (mt)
------------------------------------------------------------------------
Northern Red Hake...................               280               266
Northern Silver Hake................            13,177            12,518
Southern Red Hake...................             3,259             3,096
Southern Whiting....................           33,940*           32,243
------------------------------------------------------------------------
* Southern Whiting ABC = Silver Hake 25th percentile of OFL (32,635 mt)
  + 4% (1,305 mt).

    This final rule implements total allowable landings (TAL) on a 
stock area basis, with southern silver and offshore hake combined. This 
results in four TALs (Table 4) that relate directly to the ACLs 
recommended by the SSC and the Council. Discards and estimated state 
landings are deducted from the ACLs, and stock area TALs are used as 
the management limit. At its September 2011 meeting, the Council 
recommended a 3-percent allowance for state landings. The Council also 
recommended using a discard estimate based on the average discards from 
2008-2010 for all stocks.

[[Page 19140]]



                                                      Table 4--Fishing Year 2012-2014 ACLs and TALs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Northern  Red Hake         Northern  Silver Hake          Southern  Red Hake           Southern  Whiting
--------------------------------------------------------------------------------------------------------------------------------------------------------
ACL.................................  266 mt.....................  12,518 mt..................  3,096 mt...................  32,295 mt.
Discard % (2008-2010)...............  65%........................  26%........................  56%........................  13%.
Discards (mt).......................  173 mt.....................  3,255 mt...................  1,718 mt...................  4,198 mt.
State Landings (3% of ACL--Discards)  2.8 mt.....................  278 mt.....................  42 mt......................  842 mt.
Federal TAL (mt)....................  90.3 mt....................  8,985 mt...................  1,336 mt...................  27,255 mt.
Federal TAL (lb)....................  199,077.4 lb...............  19,809,243 lb..............  2,945,376 lb...............  60,086,990 lb.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    After the publication of the proposed rule, the Council's PDT 
corrected a calculation error in the information provided to the 
Whiting Oversight Committee, upon which NMFS based the measures in the 
proposed rule. The PDT inadvertently used the 2007-2009 discard rates 
instead of the 2008-2010 discard rates as was intended by the Council. 
Correcting this error results in a slight decrease in the TALs for both 
northern silver hake and southern whiting (southern silver hake plus 
offshore hake), a slight increase in the TAL for southern red hake, and 
a relatively significant decrease in the TAL for northern red hake. The 
northern red hake TAL set by this rule is the only TAL that is close to 
or below recent landings levels: Based on the updated information, the 
discard rate for northern red hake changed from 58 percent to 65 
percent, which reduced the northern red hake TAL from the proposed 108 
mt to 90.3 mt. The Whiting Oversight Committee and the Council did not 
object to correcting the data for Amendment 19, and do not objecting to 
doing the same in the Secretarial Amendment.

Specifications Process

    Specifications will be set on a 3-year cycle, starting with the 
first year of implementation of the Secretarial Amendment. This process 
will be used to update the OFLs, ABCs, ACLs, and TALs based on the most 
recent available information using the calculations described above. 
Data expected to be used in the specifications setting process include, 
but are not limited to, new survey biomass indices, reported landings, 
estimated discards, and estimates of state-waters landings.
    The Council, the PDT, and the Whiting Oversight Committee will 
monitor the status of the small-mesh multispecies fishery and resource. 
The Small-Mesh Multispecies PDT will meet to review the status of the 
stocks and the fishery. Based on this review, the PDT will report to 
the Council any changes or new information about the small-mesh 
multispecies stocks and/or fishery, and the PDT should recommend 
whether the specifications for the upcoming year(s) need to be 
modified. If necessary, the PDT will provide advice and recommendations 
to the Whiting Oversight Committee and the Council regarding the need 
to adjust measures for the small-mesh multispecies fishery to better 
achieve the FMP's objectives.
    The PDT's recommendations will include the following information: 
OFL and ABC estimates for the next 3 fishing years, based on the 
control rules; ACLs that are set equal to 95 percent of the 
corresponding ABC; TALs that are calculated using an estimate of 
discards based on the most recent 3-year moving average for which data 
are available and an appropriate estimate of state-waters landings; an 
evaluation of catches compared to the ABCs in recent years; and any 
other measures that the PDT determines may be necessary to successfully 
implement the ACL framework, including, but not limited to, adjustments 
to the management uncertainty buffer between ABC and ACL.
    The PDT will provide these recommendations to the SSC for review. 
The SSC will either approve the PDT's recommendations or provide 
alternative recommendations to the Council. The Council will then 
consider the SSC's and PDT's recommendations and make a decision on the 
specifications for the next 3 fishing years. The Council must establish 
ACLs that are equal to or lower than the SSC's recommended ABCs. Once 
the Council has approved ACLs, they will be submitted to NMFS for 
approval and implementation. After receiving the Council's ACLs, NMFS 
will review the recommendations and implement the ACLs in a manner 
consistent with the Administrative Procedure Act, if it is determined 
that the ACLs are consistent with applicable law. If the ACLs are 
determined to be inconsistent with applicable law, NMFS may publish 
alternative specifications that do not exceed the SSC's recommendations 
and are consistent with applicable law. If new ACLs are not implemented 
for the start of the new specifications cycle, the old ACLs will remain 
in effect until they are replaced.

Accountability Measures

    This final rule implements both a proactive (in-season) and a 
reactive (post-season) AM framework for the small-mesh multispecies 
fishery. NMFS intends for the two AMs to complement each other and to 
work jointly to ensure that the catch limits are not exceeded, and, if 
they are, to mitigate the potential harm to the small-mesh multispecies 
stocks.

In-Season AM: Incidental Possession Limit Trigger

    This final rule implements an AM that will reduce the possession of 
a particular stock to an incidental level when a trigger limit for that 
stock's TAL is projected to be reached. Under this approach, even if 
the TAL is exceeded, the possession limit will remain at the incidental 
level until the end of the fishing year. Based on a review of recent 
data and recommendations from the Council, this final rule implements 
the following incidental limits and triggers (Table 5).

                               Table 5--Incidental Possession Limits and Triggers
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                          % of TAL                          Incidental limit
----------------------------------------------------------------------------------------------------------------
Red Hake...........................                 90  400 lb.....................  181.44 kg
Silver and Offshore Hake, Combined.                 90  1,000 lb...................  907.18 kg
----------------------------------------------------------------------------------------------------------------


[[Page 19141]]

Post-Season AM: Pound-for-Pound Payback of an ACL Overage

    The post-season AM requires NMFS, through the Northeast Regional 
Administrator, to deduct from a subsequent year's ACL any overage of a 
stock's ACL in a given year. ACL overages that occur in one year would 
be deducted from the ACL in the second year after the overage occurred 
(i.e., year 3). The data that are necessary to determine if an ACL was 
exceeded is not available until sometime the following year. 
Implementing the AM in year 3 is appropriate for the small-mesh 
multispecies fishery because this fishery in the northern area is 
restricted by the groundfish regulations in area and season. An in-
season adjustment (i.e., in year 2) to an ACL might result in some 
exemption areas opening, while others would not. This also allows 
vessel owners the opportunity to prepare for the reduction with ample 
time to adjust their business plans.

Council Actions

    Since the publication of the proposed rule for the Secretarial 
Amendment, the Council has preliminarily selected preferred measures 
for the purpose of public hearings on a draft of Amendment 19. Most of 
the measures being implemented in the Secretarial Amendment were also 
the Council's preferred alternatives, with three exceptions. First, the 
Council likely will propose a post-season AM that would reduce the in-
season possession limit trigger by the same percentage by which the ACL 
was exceeded, instead of the pound-for-pound payback of an ACL overage 
implemented by this final rule. For example, if an ACL is exceeded by 5 
percent, the Council may propose in Amendment 19 that the trigger would 
be reduced to 85 percent for the next fishing year. Second, the Council 
may propose in Amendment 19 an in-season AM incidental possession limit 
for silver hake and offshore hake, combined, of 2,000 lb (907.18 kg), 
instead of the 1,000-lb (453.59 kg), combined, in-season possession 
limit trigger implemented by this final rule. The third measure that 
differs between the Council's preliminary draft of Amendment 19 and the 
Secretarial Amendment is for the southern stock area quota framework. 
This final rule establishes an annual, stock-wide quota for the 
southern stock area. The Council may propose in Amendment 19 an annual, 
stock-wide quota that would switch to a quarterly, stock-wide quota in 
a subsequent fishing year if two-thirds of a southern stock area quota 
is harvested in a year. None of these alternatives were analyzed in the 
Secretarial Amendment. The Council did not provide any comments on the 
Secretarial Amendment; therefore, no changes from the proposed rule 
have been made based on the Council's work on Amendment 19.

Comments and Responses

    One comment was received from an individual expressing support for 
the Secretarial Amendment and increased management of the small-mesh 
multispecies fishery in general. A second comment simply stated that 
`I'm not sure this is a good idea,' without further explanation. For 
the reasons stated above, this rule is necessary and appropriate to 
bring the small-mesh multispecies fishery into compliance with the 
Magnuson-Stevens Act requirements concerning ACLs and AMs.

Changes From the Proposed Rule

    As described above, we are implementing a change in the TAL 
calculations, based on updated information from the Council's PDT.
    A technical correction to the regulations at 50 CFR 648.88, and the 
corresponding prohibition at Sec.  648.14(k)(15)(ii)(C) is also being 
implemented through this rule. This change is necessary to remove the 
confusion regarding which species a vessel issued a ``non-regulated'' 
Northeast multispecies permit may land. Specifically, there may be 
confusion regarding ocean pout, which is not, by definition, a 
``regulated species,'' but is not one of the species that a vessel 
issued a ``non-regulated'' permit may land.

Classification

    The Administrator, Northeast Region, NMFS, determined that the 
Secretarial Amendment to the Northeast Multispecies FMP is necessary 
for conservation and management of the small-mesh multispecies fishery 
and that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
this final rule includes a FRFA in support of the Secretarial Amendment 
analyzing the rule's impact on small entities. This FRFA incorporates 
the IRFA, a summary of the significant issues raised by the public 
comments in response to the IRFA, NMFS' responses to those comments, 
relevant analyses in the Amendment and its EA, and a summary of the 
analyses completed to support the action implemented through this rule. 
A copy of the analyses done in the Amendment and EA is available from 
the Northeast Regional Administrator (see ADDRESSES). A summary of the 
IRFA was published in the proposed rule for this action and is not 
repeated here. A description of why this action was considered, the 
objectives of, and the legal basis for this rule is contained in the 
preamble to the proposed rule and this final rule and is not repeated 
here.

A Summary of the Significant Issues Raised by the Public in Response to 
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a 
Statement of Any Changes Made in the Proposed Rule as a Result of Such 
Comments

    Two comments were received on the proposed rule and the amendment. 
However, neither addressed the IRFA or economic analysis contained in 
the Secretarial Amendment, and neither resulted in any changes to the 
rule.

Description and Estimate of Number of Small Entities to Which the Final 
Rule Will Apply

    The Small Business Administration (SBA) considers commercial 
fishing entities (NAICS code 114111) to be small entities if they have 
no more than $4 million in annual sales, while the size standard for 
charter/party operators (part of NAICS code 487210) is $7 million in 
sales. The participants in the commercial small-mesh multispecies 
fishery are those vessels issued limited or open access Northeast 
multispecies permits that land any of the small-mesh multispecies. 
Because any vessel at any time may be issued an open access Northeast 
multispecies permit, it is difficult to determine how many vessels or 
owners will participate in this fishery in a given year. Although some 
firms own more than one vessel, available data make it difficult to 
reliably identify ownership control over more than one vessel. For this 
analysis, the number of vessels landing at least 1 lb (0.45 kg) of any 
of the small-mesh multispecies is considered to be a maximum estimate 
of the number of small business entities. The average number of 
permitted vessels landing at least 1 lb (0.45 kg) of silver hake or red 
hake from 2005-2010 was 562 vessels per year. Thus, all of the entities 
(fishing vessels) affected by this action are considered small entities 
under the SBA size standards for small fishing businesses ($4.0 million 
in annual gross sales). Therefore, there are no disproportionate 
effects on small versus large entities.

[[Page 19142]]

    Information on costs in the fishery is not readily available and 
individual vessel profitability cannot be determined directly; 
therefore, expected changes in gross revenues were used as a proxy for 
profitability. In general, the economic impacts from the measures 
implemented in the Secretarial Amendment are neutral. There may be 
slightly negative impacts if the in-season or post-season AMs are 
triggered. These measures would reduce the amount of fish available to 
the fleet, which in turn would reduce revenues. On the other hand, 
there are likely to be positive long-term impacts on the fishery, as 
these measures are intended to ensure that the sustainable harvesting 
of the small-mesh multispecies stocks. These effects would be evaluated 
at the time such measures, if necessary, are implemented.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    There are no compliance requirements associated with this final 
rule implementing the Secretarial Amendment.
    This final rule does not duplicate, overlap, or conflict with other 
Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    The management measures implemented in the Secretarial Amendment 
were developed to improve the overall management of the small-mesh 
multispecies fishery by establishing ACLs and AMs aimed at preventing 
overfishing. None of the measures being implemented in the Secretarial 
Amendment reduce fishing opportunities or flexibility. The TALs are 
well-above recent landings levels, except for northern red hake. These 
measures also promote efficiency within the fishery or reduce waste 
associated with regulatory discards by establishing incidental 
possession limits that take into account the existing behavior of the 
fleet and setting incidental possession limits at or above the current, 
market-driven incidental level.
    Therefore, by implementing management measures that provide 
flexibility and efficiency and reduce waste, NMFS has taken the steps 
necessary to minimize the impacts of this action on small entities 
consistent with the stated objectives of applicable statutes.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Northeast Regional Office, and the 
guide, i.e., permit holder letter, will be sent to all holders of 
permits for the Northeast multispecies fishery. The guide and this 
final rule will be available upon request, and posted on the Northeast 
Regional Office's Web site at www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 27, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
1. In Sec.  648.14, paragraph (k)(15)(ii)(C) is revised to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (15) * * *
    (ii) * * *
    (C) Open access NE multispecies (non-regulated species permit). It 
is unlawful for any owner or operator of a vessel issued a valid open 
access NE multispecies permit to possess or land any regulated species, 
as defined in Sec.  648.2, or to violate any applicable provisions of 
Sec.  648.88, unless otherwise specified in Sec. Sec.  648.14, 648.86, 
or 648.88.
* * * * *

0
2. In Sec.  648.80, paragraphs (a)(8)(iii) and (a)(16)(iii) are revised 
to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (a) * * *
    (8) * * *
    (iii) For exemptions allowing no incidental catch of regulated 
species, as defined under paragraph (a)(8)(i) of this section, the 
NEFMC may recommend to the Regional Administrator, through the 
framework procedure specified in Sec.  648.90(c), additions or 
deletions to exemptions for fisheries, either existing or proposed, for 
which there may be insufficient data or information for the Regional 
Administrator to determine, without public comment, percentage catch of 
regulated species. For exemptions allowing incidental catch of 
regulated species, as defined under paragraph (a)(8)(ii) of this 
section, the NEFMC may recommend to the Regional Administrator, through 
the framework procedure specified in Sec.  648.90(c), additions or 
deletions to exemptions for fisheries, either existing or proposed, for 
which there may be insufficient data or information for the Regional 
Administrator to determine, without public comment, the risk that this 
exemption would result in a targeted regulated species fishery, the 
extent of the fishery in terms of time and area, and the possibility of 
expansion in the fishery.
* * * * *
    (16) * * *
    (iii) Annual review. On an annual basis, the Groundfish PDT will 
review data from this fishery, including sea sampling data, to 
determine whether adjustments are necessary to ensure that regulated 
species bycatch remains at a minimum. If the Groundfish PDT recommends 
adjustments to ensure that regulated species bycatch remains at a 
minimum, the Council may take action prior to the next fishing year 
through the framework adjustment process specified in Sec.  648.90(c), 
and in accordance with the Administrative Procedure Act.
* * * * *

0
3. In Sec.  648.86, paragraph (d)(4) is added to read as follows:


Sec.  648.86  NE Multispecies possession restrictions.

* * * * *
    (d) * * *
    (4) In-season adjustment of small-mesh multispecies possession 
limits. If the Regional Administrator projects that 90 percent of a 
stock area TAL, as defined in Sec.  648.90(b)(3), has been landed, the 
Regional Administrator shall reduce the possession limit of that

[[Page 19143]]

stock described in paragraphs (d)(4)(i) and (ii) of this section, for 
the remainder of the fishing year through notice consistent with the 
Administrative Procedure Act, unless such a reduction in the possession 
limit would be expected to prevent the TAL from being reached.
    (i) Red hake. If a possession limit reduction is needed for a stock 
area, the incidental possession limit for red hake in that stock area 
will be 400 lb (181.44 kg) for the remainder of the fishing year.
    (ii) Silver hake and offshore hake. If a possession limit reduction 
is needed for a stock area, the incidental possession limit for silver 
hake and offshore hake, combined, in that stock area will be 1,000 lb 
(453.59 kg) for the remainder of the fishing year.
* * * * *

0
4. In Sec.  648.88, paragraph (d) is revised to read as follows:


Sec.  648.88  Multispecies open access permit restrictions.

* * * * *
    (d) Non-regulated NE multispecies permit. A vessel issued a valid 
open access non-regulated NE multispecies permit may possess and land 
one Atlantic halibut and unlimited amounts of the other non-regulated 
NE multispecies, unless otherwise restricted by Sec.  648.86. The 
vessel is subject to restrictions on gear, area, and time of fishing 
specified in Sec.  648.80 and any other applicable provisions of this 
part.

0
5. In Sec.  648.90, the introductory text is revised, and paragraphs 
(b) and (c)(1)(ii) are revised to read as follows:


Sec.  648.90  NE multispecies assessment, framework procedures and 
specifications, and flexible area action system.

    For the NE multispecies framework specification process described 
in this section, the regulated species and ocean pout biennial review 
is considered a separate process from the small-mesh species annual 
review, as described in paragraphs (a)(2) and (b)(1), respectively, of 
this section. In addition, the process for specifying ABCs and 
associated ACLs for regulated species and ocean pout, as described in 
paragraph (a)(4) of this section, is considered a separate process from 
the small-mesh species ABC and ACL process described in paragraph 
(b)(2) of this section.
* * * * *
    (b) Small-mesh multispecies--(1) Three-year specifications process, 
annual review, and Stock Assessment and Fishery Evaluation. The Council 
will specify on at least a 3-year basis the OFL, ABC, ACLs, and TALs 
for each small-mesh multispecies stock in accordance with the following 
process.
    (i) At least every 3 years, based on the annual review, described 
below in paragraph (b)(3) of this section, and/or the SAFE Report 
described in paragraph (b)(4) of this section, recommendations for ABC 
from the Scientific and Statistical Committee (SSC), and any other 
relevant information, the Small-Mesh Multispecies PDT will recommend to 
the Whiting Oversight Committee and Council specifications including 
the OFL, ABC, ACL and TAL for each small-mesh multispecies stock the 
following specifications for a period of at least 3 years. The Small-
Mesh Multispecies PDT and the Council will follow the process in 
paragraph (b)(2) of this section for setting these specifications.
    (ii) The Small-Mesh Multispecies PDT, after reviewing the available 
information on the status of the stock and the fishery, may recommend 
to the Council any measures necessary to assure that the specifications 
will not be exceeded, as well as changes to the appropriate 
specifications.
    (iii) Taking into account the annual review and/or SAFE Report 
described in paragraph (b)(2) of this section, the advice of the SSC, 
and any other relevant information, the Small-Mesh Multispecies PDT may 
also recommend to the Whiting Oversight Committee and Council changes 
to stock status determination criteria and associated thresholds based 
on the best scientific information available, including information 
from peer-reviewed stock assessments of small-mesh multispecies. These 
adjustments may be included in the Council's specifications for the 
small-mesh multispecies fishery.
    (iv) Council recommendation. (A) The Council will review the 
recommendations of the Small-Mesh Multispecies PDT, Whiting Oversight 
Committee, and SSC, any public comment received thereon, and any other 
relevant information, and make a recommendation to the Regional 
Administrator on appropriate specifications and any measures necessary 
to assure that the specifications will not be exceeded.
    (B) The Council's recommendation must include supporting 
documentation, as appropriate, concerning the environmental, economic, 
and social impacts of the recommendations. The Regional Administrator 
will consider the recommendations and publish a rule in the Federal 
Register proposing specifications and associated measures, consistent 
with the Administrative Procedure Act.
    (C) The Regional Administrator may propose specifications different 
than those recommended by the Council. If the specifications published 
in the Federal Register differ from those recommended by the Council, 
the reasons for any differences must be clearly stated and the revised 
specifications must satisfy the criteria set forth in this section, the 
FMP, and other applicable laws.
    (D) If the final specifications are not published in the Federal 
Register for the start of the fishing year, the previous year's 
specifications will remain in effect until superseded by the final rule 
implementing the current year's specifications, to ensure that there is 
no lapse in regulations while new specifications are completed.
    (2) Process for specifying ABCs, ACLs and TALs. The Small-Mesh 
Multispecies PDT will calculate the OFL and ABC values for each small-
mesh multispecies stock based on the control rules established in the 
FMP. These calculations will be reviewed by the SSC, guided by terms of 
reference developed by the Council. The ACLs and TALs will be 
calculated based on the SSC's approved ABCs, as specified in paragraphs 
(a)(2)(i)(A) through (C), and (a)(2)(ii)(A) through (C) of this 
section.
    (i) Red hake--(A) ABCs. The Council's SSC will recommend an ABC to 
the Council for both the northern and southern stocks of red hake. The 
red hake ABCs are reduced from the OFLs based on an adjustment for 
scientific uncertainty as specified in the FMP; the ABCs must be less 
than or equal to the OFL.
    (B) ACLs. The red hake ACLs are equal to 95 percent of the 
corresponding ABCs.
    (C) TALs. The red hake TALs are equal to the ACLs minus a discard 
estimate based on the most recent 3 years of data. The red hake TALs 
are then reduced by 3 percent to account for red hake landings that 
occur in state waters.
    (ii) Silver and Offshore Hake--(A) ABCs. The Council's SSC will 
recommend an ABC to the Council for both the northern and southern 
stocks of silver hake. The ABC for the southern stock of silver hake 
will be increased by 4 percent to account for catch of offshore hake. 
The combined silver hake and offshore hake ABC in the southern area 
will be the southern whiting ABC. The silver hake and whiting ABCs are 
reduced from the OFLs based on an adjustment for scientific uncertainty 
as specified in the FMP; the ABCs must be less than or equal to the 
OFLs.

[[Page 19144]]

    (B) ACLs. The northern silver hake and southern whiting ACLs are 
equal to 95 percent of the ABCs.
    (C) TALs. The northern silver hake and southern whiting TALs are 
equal to the northern silver hake and southern whiting ACLs minus a 
discard estimate based on the most recent 3 years of data. The northern 
silver hake and southern whiting TALs are then reduced by 3 percent to 
account for silver hake and offshore hake landings that occur in state 
waters.
    (3) Annual Review. (i) The Small-Mesh Multispecies PDT will meet at 
least once annually to review the status of the stock and the fishery 
and the adequacy of the 3-year specifications. Based on such review, 
the PDT will provide a report to the Council on any changes or new 
information about the small-mesh multispecies stocks and/or fishery, 
and it will recommend whether the specifications for the upcoming 
year(s), established pursuant to paragraph (b)(1) of this section, need 
to be modified. At a minimum, this review should include a review of at 
least the following data, if available: Commercial catch data; current 
estimates of fishing mortality and catch-per-unit-effort (CPUE); 
discards; stock status; recent estimates of recruitment; virtual 
population analysis results and other estimates of stock size; sea 
sampling, port sampling, and survey data or, if sea sampling data are 
unavailable, length frequency information from port sampling and/or 
surveys; impact of other fisheries on the mortality of small-mesh 
multispecies; and any other relevant information.
    (ii) If new and/or additional information becomes available, the 
Small-Mesh Multispecies PDT will consider it during this annual review. 
Based on this review, the Small-Mesh Multispecies PDT will provide 
guidance to the Whiting Oversight Committee and the Council regarding 
the need to adjust measures for the small-mesh multispecies fishery to 
better achieve the FMP's objectives. After considering this guidance, 
the Council may submit to NMFS its recommendations for changes to 
management measures, as appropriate, through the specifications process 
described in this section, the process specified in paragraph (c) of 
this section, or through an amendment to the FMP.
    (4) SAFE Report. (i) The Small-Mesh Multispecies PDT will prepare a 
SAFE Report at least every 3 years. Based on the SAFE Report, the 
Small-Mesh Multispecies PDT will develop and present to the Council 
recommended specifications as defined in paragraph (a) of this section 
for up to 3 fishing years. The SAFE Report will be the primary vehicle 
for the presentation of all updated biological and socio-economic 
information regarding the small-mesh multispecies fishery. The SAFE 
Report will provide source data for any adjustments to the management 
measures that may be needed to continue to meet the goals and 
objectives of the FMP.
    (ii) In any year in which a SAFE Report is not completed by the 
Small-Mesh Multispecies PDT, the annual review process described in 
paragraph (a) of this section will be used to recommend any necessary 
adjustments to specifications and/or management measures in the FMP.
    (5) Accountability measures for the small-mesh multispecies 
fishery--(i) In-season adjustment of possession limits. If the Regional 
Administrator projects that 90 percent of a stock area TAL, as defined 
in Sec.  648.90(b)(3), has been landed, the Regional Administrator 
shall reduce the possession limit of that stock to the incidental 
level, as specified in Sec.  648.86(d)(4), for the remainder of the 
fishing year through notice consistent with the Administrative 
Procedure Act, unless such a reduction in the possession limit would be 
expected to prevent the TAL from being reached.
    (ii) Post-season adjustment for an overage. If NMFS determines that 
a small-mesh multispecies ACL was exceeded in a given fishing year, the 
exact amount of the landings overage will be deducted, as soon as is 
practicable, from a subsequent single fishing year's ACL for that 
stock, through notification consistent with the Administrative 
Procedure Act.
    (c) * * *
    (1) * * *
    (ii) Adjustment process for whiting DAS. The Council may develop 
recommendations for a whiting DAS effort reduction program through the 
framework process outlined in paragraph (c) of this section only if 
these options are accompanied by a full set of public hearings that 
span the area affected by the proposed measures in order to provide 
adequate opportunity for public comment.
* * * * *
[FR Doc. 2012-7710 Filed 3-29-12; 8:45 am]
BILLING CODE 3510-22-P