Fisheries of the Northeastern United States; Northeast Multispecies Fishery Management Plan; Secretarial Amendment, 19138-19144 [2012-7710]
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19138
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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.
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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
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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
https://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
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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.
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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 ...............
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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
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* 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
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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
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state landings. The Council also
recommended using a discard estimate
based on the average discards from
2008–2010 for all stocks.
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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).
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TABLE 5—INCIDENTAL POSSESSION LIMITS AND TRIGGERS
% of TAL
Red Hake .........................................................................................................................
Silver and Offshore Hake, Combined ..............................................................................
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Incidental limit
90
90
400 lb ................
1,000 lb ............
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907.18 kg
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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
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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
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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.
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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.
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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.
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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:
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§ 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
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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:
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§ 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
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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.
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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.
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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
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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
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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:
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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]
=======================================================================
-----------------------------------------------------------------------
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 https://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