Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 48, 26117-26169 [2013-10402]
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National Oceanic and Atmospheric Administration
50 CFR Part 648
Magnuson-Stevens Fishery Conservation and Management Act Provisions;
Fisheries of the Northeastern United States; Northeast (NE) Multispecies
Fishery; Framework Adjustment 48; Final Rule
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Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 120814336–3408–02]
RIN 0648–BC27
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Northeast
(NE) Multispecies Fishery; Framework
Adjustment 48
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Interim final rule; request for
comments.
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AGENCY:
SUMMARY: Through this interim final
rule, NMFS announces that it partially
approves Framework Adjustment 48 to
the NE Multispecies Fishery
Management Plan (FMP) and
implements the approved measures in
the regulations. Framework 48 is the
first of two parallel and related actions
developed by the New England Fishery
Management Council (Council) to
respond to updated stock status
information and to adjust other
management measures in the NE
multispecies (groundfish) fishery
beginning in fishing year (FY) 2013.
This action implements new status
determination criteria for Gulf of Maine
(GOM) cod, Georges Bank (GB) cod,
Southern New England/Mid-Atlantic
(SNE/MA) yellowtail flounder, and
white hake based on new benchmark
assessments completed for these stocks
in 2012 and 2013. NMFS is approving
and implementing updated status
determination criteria for white hake
through this interim final rule and
accepting further comment on this
measure since it was not available for
comment in the Framework 48 proposed
rule. NMFS will publish a subsequent
final rule to respond to any comments
received, if necessary. Through this
action, NMFS has also approved and is
implementing the following Framework
48 measures: Elimination of dockside
monitoring requirements for the
groundfish fishery; lower minimum fish
sizes for several groundfish stocks;
clarified goals and performance
standard for groundfish monitoring
programs; revisions to the allocation of
GB yellowtail flounder to the scallop
fishery; and establishment of sub-annual
catch limits (ACLs) of GB yellowtail
flounder and SNE/MA windowpane
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flounder for the scallop and other nongroundfish fisheries. NMFS also
approved revisions to recreational and
commercial accountability measures
(AMs), including amendments to
existing AMs for windowpane flounder,
ocean pout, and Atlantic halibut, and
new ‘‘reactive’’ AMs for Atlantic
wolffish and SNE/MA winter flounder,
to address a remand by the U.S. District
Court of Appeals. NMFS disapproved
some measures in Framework 48: A
provision for cost-sharing of monitoring
costs between the industry and NMFS;
a provision to delay industry-funded
monitoring to FY 2014; finer scale
discard rate strata for GB yellowtail
flounder; and a provision to remove
requirements for groundfish trawlers to
stow their gear when transiting closed
areas. Through this interim final rule,
NMFS also withdraws a proposed
correction to the regulations specific to
monitoring of the Eastern U.S./Canada
quotas, and will be accepting additional
public comment on this issue. These
measures are necessary to meet the
requirements of the FMP and the
Magnuson-Stevens Act, most notably
preventing overfishing, ensuring that
management measures are based on the
best available science, and mitigating, to
the extent practicable, potential negative
economic impacts from reductions in
catch limits anticipated for fishing year
FY 2013.
DATES: Effective May 1, 2013, except for
the amendment to § 648.84, which is
effective July 1, 2013. Comments on the
interim final status determination
criteria for white hake or U.S./Canada
quota monitoring methods must be
received by June 3, 2013.
ADDRESSES: You may submit comments
on the new status determination criteria
for white hake or U.S./Canada quota
monitoring, identified by NOAA–
NMFS–2013–0050, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=
NOAA-NMFS-2013-0050, click the
‘‘Comment Now!’’ icon, complete the
required fields, and enter or attach your
comments.
• Mail: Submit written comments to
John K. Bullard, Regional
Administrator, National Marine
Fisheries Service, 55 Great Republic
Drive, Gloucester, MA 01930.
• Fax: (978) 281–9135; Attn: Melissa
Hooper.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
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considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
file formats only.
Copies of Framework 48, its
Regulatory Impact Review (RIR), the
environmental assessment (EA)
prepared for this action, and the Final
Regulatory Flexibility Analysis (FRFA)
prepared by the Council are available
from Thomas Nies, Executive Director,
New England Fishery Management
Council, 50 Water Street, Mill 2,
Newburyport, MA 01950. The FRFA
assessing the impacts of the measures
on small entities and describing steps
taken to minimize any significant
economic impact on such entities
consists of the Initial Regulatory
Flexibility Analysis (IRFA), preamble,
and the summary of impacts and
alternatives contained in the
Classification section of this final rule
and Framework 48. The Framework 48
EA/RIR/IRFA are also accessible via the
Internet at http://www.nefmc.org/
nemulti/index.html or http://www.nero.
noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Melissa Hooper, Fishery Policy Analyst,
phone: 978–281–9166, fax: 978–281–
9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP specifies management
measures for 16 species of groundfish in
Federal waters off the New England and
Mid-Atlantic coasts, including both
large-mesh and small-mesh species.
Small-mesh species include silver hake
(whiting), red hake, offshore hake, and
ocean pout; and large-mesh species (also
referred to as ‘‘regulated species’’)
include Atlantic cod, haddock,
yellowtail flounder, pollock, American
plaice, witch flounder, white hake,
windowpane flounder, Atlantic halibut,
winter flounder, redfish, and Atlantic
wolffish. Large-mesh species, which are
referred to as ‘‘regulated species,’’ are
divided into 19 fish stocks, and along
with ocean pout, comprise the
groundfish complex of 20 stocks
managed under the NE Multispecies
FMP.
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Amendment 16 to the FMP
(Amendment 16) established a process
for setting acceptable biological catches
(ABCs) and ACLs for regulated species
and ocean pout, as well as distributing
the available catch among the various
components of the groundfish fishery.
Amendment 16 also established AMs for
these 20 groundfish stocks in order to
prevent overfishing of these stocks and
correct or mitigate any overages of the
ACLs. Framework 44 to the FMP
(Framework 44) set the ABCs and ACLs
for FYs 2010–2012. In 2011, Framework
45 to the FMP (Framework 45) revised
the ABCs and ACLs for five stocks for
FYs 2011–2012. Framework 47 to the
FMP (Framework 47) updated
specifications for most stocks for FYs
2012–2014 and modified management
measures in the fishery after more than
1 year under ACLs and AMs.
Framework 48 is one of two actions
developed by the Council to respond to
benchmark and assessment updates
completed for all groundfish stocks in
2012 and 2013. Updated information in
these assessments requires revisions to
the status determination criteria for
GOM cod, GB cod, SNE/MA yellowtail
flounder, and white hake and
implementation of updated ABCs and
ACLs for most stocks for FYs 2013–
2015. These measures are necessary to
prevent overfishing and facilitate the
rebuilding of groundfish stocks as
required by the FMP. In Framework 48,
the Council proposed administrative
changes to the FMP to make way for
Framework 50, which specifies ABCs
and ACLs for all stocks for FY 2013–
2015. The Council also included several
measures in Framework 48 intended to
mitigate negative economic impacts to
the groundfish fishery anticipated from
the substantial reductions in catch
limits proposed in Framework 50 to end
overfishing. Framework 48 also
implements AMs for Atlantic halibut,
Atlantic wolffish, and SNE/MA winter
flounder in response to a Court Order
and remand in Oceana v. Locke et al.
831 F.Supp.2d 95 (D.D.C. 2011) that
held that so-called ‘‘reactive’’ AMs had
not been developed for the 6 stocks not
allocated to sectors (‘‘non-allocated
stocks’’) in Amendment 16. Framework
48 recommended reactive AMs for 3 of
these stocks, for which reactive AMs
had not been established since
Amendment 16. A more extensive
discussion of the development of
Frameworks 48 and 50 is available in
the proposed rules for these two actions
(78 FR 18188; March 25, 2013 and 78 FR
19368; March 29, 2013, respectively)
and is not repeated here. NMFS also
proposed several corrections to the NE
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multispecies regulations through the
Framework 48 proposed rule under the
authority of section 305(d) of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), which allows
the Secretary of Commerce to
implement regulations necessary to
ensure that fishery management plans or
amendments are carried out consistent
with the Magnuson-Stevens Act. These
changes are not part of Framework 48,
but are necessary to clarify existing
regulations and achieve the objectives of
the FMP.
Public comments were accepted on
the Framework 48 proposed rule
through April 9, 2013. After review of
public comments, NMFS has partially
approved Framework 48 as consistent
with the goals and objectives of the NE
Multispecies FMP, and the requirements
of the Magnuson-Stevens Act and other
applicable law.
Disapproved Measures
This section summarizes the
Framework 48 measures NMFS has
disapproved as not consistent with goals
and objectives of the NE Multispecies
FMP or the requirements of the
Magnuson-Stevens Act and other
applicable law. NMFS also withdraws a
correction to the NE multispecies
regulations that NMFS proposed in the
Framework 48 proposed rule regarding
accounting of catch against quotas
established for the Eastern U.S./Canada
Management Area, for reasons discussed
below.
1. Delay Industry At-Sea Monitoring
Cost Responsibility
Framework 48 proposed to delay
sectors’ responsibility to implement and
pay for their own at-sea monitoring
programs to FY 2014. The Council
included this measure in Framework 48
out of concern that the industry would
not be able to support this cost burden
in FY 2013 due to the substantial catch
reductions proposed in Framework 50.
Coverage levels would instead be set at
the level that NMFS can fund. The
Council proposed a similar measure in
Framework 45, which NMFS
disapproved due to concerns that there
would not be Federal funds to ensure
adequate monitoring of sector
operations. A complete description of
the development this measure was
included in the Framework 48 proposed
rule (Item 8) and is not repeated here.
NMFS is disapproving this measure as
it did in Framework 45 because it is
inconsistent with the requirements of
the FMP and the Magnuson-Stevens
Act. However, due to fishermen’s
concerns about their ability to pay for
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at-sea monitoring costs in FY 2013,
NMFS intends to cover 100 percent of
the costs of sector at-sea monitoring
once again in FY 2013 using the NMFS
At-sea Monitoring Program. But, relying
on NMFS appropriations to determine
an at-sea monitoring coverage rate does
not ensure that coverage will be
sufficient to monitor sector annual catch
entitlements (ACEs) or to meet the
purpose and goals for sector monitoring
described in Amendment 16 and
Framework 48. Because NMFS funding
depends on Congressional
appropriations, funding levels fluctuate,
and NMFS cannot guarantee sufficient
funding to meet the coverage levels
required by the FMP to monitor ACLs
and sector ACEs. If sector at-sea
monitoring depended on NMFS funding
alone and that funding fell short of
required coverage levels, NMFS may not
be able to reliably estimate total catch,
undermining the effectiveness of ACLs
and sector ACEs to prevent overfishing
and facilitate the rebuilding of
groundfish stocks as required by
National Standard 1 and section
303(a)(1) of the Magnuson-Stevens Act.
NMFS was able to locate funding to
provide the NMFS At-sea Monitoring
Program again in FY 2013, but such
funding is not certain. Without
additional appropriations to support
sector monitoring specifically, relying
solely on the Federal Government to
provide sector at-sea monitoring
coverage could also undermine other
programs. Inadequate funding could
potentially force NMFS to spread
existing resources too thin, undermining
the Standard Bycatch Reporting
Methodology (SBRM) coverage
requirements of section 303(a)(11) and
information used to assess Northeast
fish stocks. Thus, NMFS has
disapproved this measure in Framework
48. Sectors will be responsible for any
costs of at-sea monitoring that are not
covered by Federal funding in FY 2013.
2. At-Sea Monitoring Cost-Sharing
To serve as a more long-term solution
to the cost burden of at-sea monitoring
to sectors, Framework 48 proposed a
mechanism for sharing of at-sea
monitoring costs between sectors and
NMFS. Framework 48 proposed that the
industry would only ever be responsible
for paying the direct costs of at-sea
monitoring, specifically the daily salary
of the at-sea monitor. All other
programmatic costs would be the
responsibility of NMFS, including, but
not limited to: Briefing, debriefing,
training and certification costs (salary
and non-salary); sampling design
development; data storage, management
and security; data quality assurance and
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control; administrative costs;
maintenance of monitoring equipment;
at-sea monitor recruitment, benefits,
insurance and taxes; logistical costs
associated with deployment; and at-sea
monitor travel and lodging. This
measure was intended to reduce the cost
burden of at-sea monitoring to sectors
and thereby increase their profitability.
NMFS has disapproved this costsharing measure because it is not
consistent with other applicable laws as
developed. Specifically, the AntiDeficiency Act and other appropriations
law prohibits Federal agencies from
obligating the Federal government
except through appropriations and from
sharing the payment of government
obligations with private entities.
Framework 48 proposed to require
NMFS to pay for some portion of the
costs of at-sea activities, such as
logistical costs generated by
deployment, which are outside its
statutory obligations under the
Magnuson-Stevens Act. As written, this
measure would also have required
NMFS and sectors to share payment of
obligations defined as belonging to one
or the other. For example, Framework
48 proposed to require NMFS to pay
some costs related to at-sea activities,
such as benefits and insurance for at-sea
monitors, while sectors would pay other
portions of at-sea costs, like the salary
for at-sea monitors. Because such action
would be prohibited under the law,
NMFS has disapproved this measure in
Framework 48.
Although this measure was not
approvable as developed, NMFS shares
the Council and industry’s concern
about the ability of sectors to bear the
full costs of monitoring in future fishing
years. NMFS believes this approach to
cost sharing, which defines the items
that NMFS versus sectors should be
responsible for, could be viable if
restructured and may be worth pursuing
in a future action. NMFS is already
working with the New England and
Mid-Atlantic Councils’ joint HerringMackerel Plan Development Team
(PDT)/Fishery Management Action
Team (FMAT) to pursue cost-sharing
options such as this one for those
fisheries for FY 2014. The Council could
consider including the NE Multispecies
FMP in this joint effort to develop a
workable and consistent cost-sharing
mechanism for the Northeast region.
3. GB Yellowtail Flounder Management
Measures
Framework 48 proposed to change the
stratification of discard estimates for
sectors for GB yellowtail flounder, by
splitting the GB yellowtail flounder
trawl discard strata between statistical
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area 522 and statistical areas 525/561/
562. This measure was intended to
revise sector discard rates to more
closely reflect actual discards of
yellowtail flounder in different areas of
Georges Bank and potentially lengthen
the fishing season for sector vessels in
those areas. Based on public comment,
NMFS has disapproved this measure in
Framework 48, because it would
complicate and increase the cost and
burden of monitoring and potentially
increase uncertainty of catch estimates
without any measurable benefits for
sectors. Accordingly, this measure is
inconsistent with or may lead to
inconsistency with National Standards 5
and 7 of the Magnuson Stevens Act. As
more fully discussed below, because of
the added complications of
administering this measure, it may
increase costs more than it provides
benefits to the fishing industry or the
efficient management and monitoring of
catches. Although finer scale strata
would allow discard rates to more
closely reflect actual discard rates of
yellowtail flounder in different parts of
Georges Bank, NMFS does not believe
this measure would have any real
benefits for sectors that could not be
achieved with existing discard rate
strata. A separate discard rate in
statistical area 522 could benefit an
individual vessel with a lower GB
yellowtail flounder discard rate that
would not be influenced by higher
discards by other vessels in its sector
fishing elsewhere on Georges Bank.
However, the sector’s fishing season on
GB would still be limited by the total
catch of GB yellowtail flounder by all its
member vessels. A finer stratum would
not eliminate the need for a sector to
manage discards of yellowtail flounder
by all its vessels on Georges Bank to
prevent an early end to their fishing
season.
In contrast, the proposed measure
could have real effects on the
administrative burden for both NMFS
and sectors that NMFS believes are not
justified in light of the lack of real
benefits from this measure. Some sector
representatives and members of sectors
raised these concerns in public
comments on the Framework 48
proposed rule. Both sectors and NMFS
would have to modify and reprogram
quota monitoring programs and reports
to accommodate the new strata,
increasing the administrative burden for
sector managers and NMFS, without any
corresponding benefits for sectors,
which could reduce efficiency
inconsistent with National Standards 5
and 7. Some sectors have developed
software to calculate and manage catch
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and compile sector weekly reports to
NMFS. These sectors would have to
retain programmers to reprogram this
software to accommodate the new strata
and method. The administrative burden
to generate sector weekly reports could
be even greater for sector managers that
do not use software to compile their
sector’s reports, but rather calculate
catch manually on a weekly basis.
NMFS is also concerned about how this
revised strata, combined with other
changes to the discard rate method in
FY 2013, will affect the variance of
discard rates and thereby affect our
ability to reliably estimate catch to
ensure that overfishing is not occurring.
Concerns that this measure could
further complicate monitoring and
increase uncertainty of catch estimates
by creating an incentive to misreport
catches of GB yellowtail flounder is also
justified. There is a potential for this
measure to create an incentive for sector
vessels fishing inside and outside
statistical area 522 without an observer
to misreport GB yellowtail catch from
outside area 522 as from inside area 522
in order to get a lower discard rate,
thereby jeopardizing NMFS’s ability to
ensure that catches are consistent with
preventing overfishing and rebuilding
fish stocks. This could potentially
inflate area 522 GB yellowtail discard
estimates and negate any benefit of this
measure. Thus, out of concern that this
measure could increase the uncertainty
of catch estimates and the costs of
monitoring and administration of
sectors without any corresponding
benefits to sectors, NMFS has
disapproved this measure in Framework
48.
4. Requirement to Stow Trawl Gear
While Transiting
The regulations currently specify that
fishing gear must be stowed in a specific
way, as described at 50 CFR 648.23(b),
when transiting closed areas to facilitate
the enforcement of closed areas at sea.
Framework 48 proposed to remove this
requirement for only trawl vessels on a
groundfish trip because the Council
believed that these measures are no
longer necessary with the use of the
vessel monitoring system (VMS) on all
limited access multispecies vessels.
After consideration of public
comments received on this measure,
NMFS has disapproved this measure in
Framework 48 and is maintaining the
requirements for all vessels to stow their
gear when transiting closed areas on the
basis that it may lead to difficulties in
detecting and prosecuting unlawful
fishing in closed areas, which would
undermine the effectiveness of these
areas to achieve the objectives for which
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they were established as conservation
and management measures in the FMP,
including the protection of spawning
and juvenile fish, habitat, and protected
species. To the extent that closed areas
were established to comply with
sections 303(a)(1) and (7), and National
Standard 9 of the Magnuson-Stevens
Act to rebuild or ensure the long-term
sustainability of fish stocks and
fisheries, to minimize the adverse
effects of fishing on habitat, or minimize
bycatch of certain stocks or protected
species, undermining these measures
would be inconsistent with these
provisions. This measure also would
have been inconsistent with National
Standard 4 of the Magnuson-Stevens
Act requiring measures to be fair and
equitable because it does not extend the
safety benefits to other fisheries without
a clear reason for doing so. There is
insufficient justification in Framework
48 explaining why these measures were
no longer necessary to enforce the
prohibition on fishing in closed areas or
why VMS data is a sufficient alternative.
As the U.S. Coast Guard (USCG) noted
in its comments on this measure, VMS
is an effective tool to enforce closed
areas when transiting is prohibited, but
is not sufficient to document possible
fishing activity in a closed area when
transiting is allowed. The gear stowage
requirements are designed to increase
the time required to set and recover gear
and hide fishing activity. The
combination of gear stowage and VMS
requirements are useful for prosecution
of closed area incursions. Thus, NMFS
and the USCG are seriously concerned
that eliminating trawl gear stowage
requirements for only groundfish
vessels would undermine enforcement
of the prohibition on fishing in closed
areas and thereby the conservation
benefits of closed areas. By eliminating
the gear stowage requirements for only
groundfish vessels, this measure would
complicate enforcement for the USCG
and enforcement personnel, and
compliance with these requirements for
vessels fishing in multiple fisheries,
thereby potentially further undermining
enforcement efforts. Abuse of this
exemption by groundfish vessels or
vessels participating in other fisheries
without effective enforcement would
undermine the conservation objectives
of closed areas, which would
undermine the goals and objectives of
the FMP and the requirements of the
Magnuson-Stevens Act for effective
conservation and management measures
to rebuild overfished stocks and to
minimize the adverse effects of fishing
on habitat. Although this measure
would have some safety benefits, the
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proposed measure does not meet the
criteria of a measure that reduces risk
while meeting the needs of conservation
and management, as required by
National Standard 10. The Council also
had available to it alternative
modifications to the gear stowage
requirements, recommended by its
VMS/Enforcement Committee, that
would have addressed safety issues for
all vessels, while maintaining the
integrity of gear stowage requirements
for enforcement of the prohibition on
fishing in closed areas. However, the
Council chose to recommend these
modifications only for other FMPs, and
instead to eliminate the requirements
entirely for groundfish trawlers, without
addressing the continued need of these
measures to satisfy requirements of the
Magnuson-Stevens Act. For these
reasons, NMFS has disapproved this
measure in Framework 48.
Although NMFS must disapprove this
measure in Framework 48, NMFS does
remain concerned about the safety risks
of the existing trawl gear stowage
requirements and believes these issues
should be addressed for all vessels.
NMFS believes that the modifications
put forward by the Council’s VMS/
Enforcement Committee would address
these safety issues, while meeting the
needs of conservation and management.
NMFS is considering initiating a
separate rulemaking, working with both
the New England and Mid-Atlantic
Councils, which would propose
modifications to the gear stowage
requirements to make them safer for all
vessels in all FMPs. The regulations at
§ 648.23(b)(5) allow the Regional
Administrator to specify a method of
stowage in writing and in a Federal
Register notice. NMFS believes that this
approach would be the most
expeditious method to address the
safety issues as soon as possible, as
opposed to a joint Council action.
5. Correction to Eastern U.S./Canada
Quota Monitoring
In the Framework 48 proposed rule,
NMFS proposed a correction to the
regulations governing fishing activity in
the Eastern U.S./Canada Area under
305(d) authority of the MagnusonStevens Act based on its determination
that the correction was needed to bring
the measure into compliance with the
perceived Council intent in Amendment
16. The regulations at
§ 648.85(a)(3)(ii)(A) currently state that
all catch of cod, haddock, and yellowtail
flounder caught on a trip that fishes
both inside and outside of the Eastern
U.S./Canada Area shall apply to the
U.S./Canada total allowable catches
(TACs) (in the case of cod and haddock,
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the Eastern U.S./Canada TACs). This
method for quota monitoring was
implemented through Framework 42 as
a precautionary way to estimate catch to
ensure U.S./Canada TACs would not be
exceeded, while allowing vessels the
flexibility to fish both inside and
outside the Eastern U.S./Canada Area on
the same trip. Amendment 16 allocated
each sector and the common pool a
portion of the Eastern U.S./Canada
TACs, but did not specifically address
whether these allocations should still be
monitored using the precautionary
Framework 42 method. NMFS’s
perceived interpretation was that
Amendment 16 intended statistical
areas reported on VMS catch reports
and vessel trip reports (VTRs) to be used
to apportion catch to specific stock
allocations. This is how NMFS has been
monitoring sector and common pool
catch of GB cod, haddock, and
yellowtail since FY 2010. Despite being
clear about NMFS’s perceived
interpretation in the Amendment 16
preamble, the original provision
implemented by Framework 42 was
inadvertently left in the regulations at
§ 648.85(a)(3)(ii)(A) by the Amendment
16 final rule. In deeming the regulations
to be consistent with the Amendment,
however, the Council did not object to
the old language, presumably because it
reflected its actual intent, as confirmed
by the Council’s comments on this
action. Through the Framework 48
proposed rule, NMFS proposed to revise
the regulations to remove the text that
states all cod, haddock, and yellowtail
flounder on multi-area trips must be
applied to Eastern U.S./Canada
allocations.
During the public comment period,
NMFS received a letter from the Council
opposing NMFS’s proposed change to
the regulations. The Council questioned
NMFS’s authority to make this change
without explicit Council action, and
asked NMFS to disapprove this change,
particularly in light of continued
concerns of misreporting of catches of
Eastern GB stocks. At the request of the
Council, NMFS is withdrawing this
change to the regulations and will
return to the Framework 42 method of
quota monitoring because it reflects the
Council’s intent. Thus, for common pool
vessels fishing both inside and outside
the Eastern U.S./Canada Area, all catch
of cod and haddock on that trip will be
counted against the applicable Eastern
U.S./Canada TAC. For sector vessels
fishing both inside and outside the
Eastern U.S./Canada Area, all catch of
cod and haddock will be counted
against its sector’s allocations for
Eastern GB cod and haddock. How GB
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yellowtail flounder should be handled
is less clear. Framework 42 and,
subsequently, the regulations specify all
yellowtail flounder caught on trips into
the Eastern U.S./Canada area should be
applied to the GB yellowtail flounder
TAC. Based on a strict reading of
Framework 42, yellowtail flounder
caught on trips into the Western U.S./
Canada Area and the Gulf of Maine or
Southern New England would appear to
be allocated according to the vessel’s
VTRs. At the time Framework 42 was
developed trips limits were lower in the
CC/GOM and SNE/MA yellowtail
flounder stock areas and if a vessel
fished in either area and the Georges
Bank area the more restrictive trip limit
applied. As a result, there was little
incentive to fish in both the Western
U.S./Canada Area and these other stock
areas on the same trip. Although these
incentives may have changed, this
provision was not explicitly revised by
Amendment 16, so NMFS believes it
must only count all GB yellowtail
flounder on trips into the Eastern U.S./
Canada Area against the applicable
U.S./Canada TAC, and yellowtail
flounder on trips into the Western U.S./
Canada Area would continue to be
allocated according to the vessel’s VTRs.
It is also not clear how discard rates
should be applied in these situations. At
the time Framework 42 was developed,
there were no sector-stock-gear specific
discard rates and so Framework 42 and
its implementing regulations did not
address how these rates should be
applied on trips into the Eastern U.S./
Canada Area. Amendment 16 also did
not provide any explicit guidance on
this matter. Since the Framework 42
measure was intended to address
possible misreporting of vessel-reported
data, NMFS believes it is appropriate to
apply observed discards and kept catch
from these trips in the computation of
discard rates according to the area
fished as recorded in observer data.
However, NMFS is still exploring how
discard rates should be applied on
unobserved trips.
Amendment 16, and the regulations
implementing Amendment 16 at
§ 648.87(b)(1)(iii), requires that NMFS
use all available information, including
the Interactive Voice Response system
(IVR), VTR, VMS, at the end of the
fishing year to determine whether a
sector exceeded any of its ACEs. NMFS
must reconcile this measure with the
requirement in Framework 42 to count
all catch on trips into the Eastern U.S./
Canada Area against U.S./Canada TACs.
In absence of any explicit language in
Amendment 16 as to how to handle this,
NMFS believes it would be consistent
with both provisions to count all cod,
haddock, and yellowtail on trips
declared into the Eastern U.S./Canada
Area on VMS against the U.S./Canada
TACs inseason for the purposes of
determining whether the Eastern U.S./
Canada Area should be closed, or that
a sector has reached its ACE and must
stop fishing. For the purposes of yearend reconciliation of sector catches,
NMFS will use VMS activity data to
determine whether a vessel that
declared into the Eastern U.S./Canada
Area actually may have fished there and
catch from a trip with no VMS activity
indicative of fishing in the Eastern U.S./
Canada Area would be reapportioned
according to the vessel’s VTRs. NMFS is
still exploring what criteria should be
used to define fishing activity from VMS
data and is interested in public
comment on this measure.
Because these details were not
available for the public to comment on
in the Framework 48 proposed rule,
NMFS is publishing this measure as an
interim final rule and will be collecting
additional public comment on it.
Approved Measures
This section summarizes the
Framework 48 measures NMFS has
approved as consistent with goals and
objectives of the NE Multispecies FMP,
and the requirements of the MagnusonStevens Act and other applicable law.
This section also contains corrections to
inadvertent errors in the NE
multispecies regulations, under the
authority of section 305(d) of the
Magnuson-Stevens Act, that are
necessary to accurately and effectively
implement the requirements of the NE
Multispecies FMP.
6. Status Determination Criteria for
GOM and GB Cod, and SNE/MA
Yellowtail Flounder
An assessment for SNE/MA yellowtail
flounder was completed in June 2012.
New assessments were also completed
for GOM and GB cod in December 2012.
The results of both models accepted in
the December 2012, GOM cod
assessment indicated that overfishing is
occurring and the stock is overfished. In
addition, the assessment for GB cod
indicated that overfishing is occurring
and the stock is overfished. The status
of SNE/MA yellowtail flounder was less
clear from the June 2012 assessment.
The assessment considered two
recruitment scenarios that resulted in
very different pictures about the stock’s
status, but favored the recent
recruitment scenario, which indicated
that the stock was not experiencing
overfishing and was rebuilt. A more
detailed discussion of the assessment
for these three stocks can be found in
Item 1 of the preamble of the proposed
rule.
NMFS has approved the proposed
status determination criteria for these
three stocks, because the results of these
assessments represent the best scientific
information available for management.
Incorporating this information into the
FMP will allow the specification of
appropriate ABCs and ACLs and other
management measures beginning in FY
2013 to prevent overfishing, and
continue rebuilding GOM and GB cod,
as required by the Magnuson-Stevens
Act. The final revised status
determination criteria are presented in
Table 1. Numerical estimates of these
criteria are presented in Table 2. There
are two sets of status determination
criteria approved for GOM cod because
two models were accepted at the
benchmark assessment in December
2012, as described above. Although two
assessment models were approved,
there is only one numerical estimate for
the maximum fishing mortality
threshold for GOM cod.
TABLE 1—REVISED STATUS DETERMINATION CRITERIA FOR SNE/MA YELLOWTAIL FLOUNDER, GOM AND GB COD
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Stock
Biomass target
SNE/MA yellowtail flounder ...........
GOM cod .......................................
GB cod ...........................................
SSB40%MSP ...................................
SSB40%MSP ...................................
SSB40%MSP ...................................
Maximum fishing
mortality threshold
Minimum biomass threshold
⁄ Btarget ........................................
⁄ Btarget ........................................
1⁄2 B
target ........................................
12
12
F40%MSP
F40%MSP
F40%MSP
SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY = maximum sustainable
yield.
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TABLE 2—NUMERICAL ESTIMATES OF THE REVISED STATUS DETERMINATION CRITERIA FOR SNE/MA YELLOWTAIL
FLOUNDER, GOM AND GB COD
SNE/MA yellowtail flounder .........................................................................................................
GOM cod (M=0.2 model) .............................................................................................................
GOM cod (Mramp model) ..............................................................................................................
GB cod .........................................................................................................................................
7. Status Determination Criteria for
White Hake
As discussed in Item 1 in the
preamble of the Framework 48 proposed
rule, a benchmark assessment for white
hake was scheduled to be completed in
February 2013, but the results of the
assessment were not yet available at the
time of proposed rule publication. This
meant that NMFS could not propose
new status determination criteria for
white hake, even though the Council
had recommended and analyzed
updated status determination criteria in
Framework 48 in case the assessment
results became available in time for
rulemaking. Thus, NMFS did not
propose or solicit public comment on
revised status determination criteria for
white hake in the Framework 48
proposed rule, but indicated that it may
take action at a later date based on the
results of the assessment when they
became available.
The assessment summary report for
Stock Assessment Review Committee
(SARC) 56 was published on April 2,
2013 (http://www.nefsc.noaa.gov/
publications/crd/crd1304/). The results
indicate that the white hake stock is not
overfished or subject to overfishing. The
stock is estimated to have been at 83
percent of the rebuilding biomass target
in 2011, the most recent year of data
incorporated into the assessment. The
stock remains under a formal rebuilding
program with a rebuilding target date of
Maximum
fishing
mortality
threshold
Biomass
target
(mt)
Stock
2014. Current stock projections from the
SARC 56 assessment indicate that the
stock is projected to rebuild in 2014.
The new stock status for white hake is
a change from the previous benchmark
assessment, conducted in 2008 as part
of the Groundfish Assessment Review
Meeting (GARM) III. The GARM III
assessment indicated the white hake
stock was both overfished and subject to
overfishing. The SARC 56 assessment
determined that the change in stock
biomass since 2007 is the result of low
fishing mortality and near long-term
average recruitment. More plainly
stated, the changes are not the results of
changes in the assessment model or
methods, but reflective of the changes in
the data that has been collected and
integrated in the interim since the last
benchmark assessment in 2008.
Additional information regarding the
February assessment data, peer review
proceedings, and results can be found
on the Northeast Fishery Science
Center’s (NEFSC) Web site: http://
www.nefsc.noaa.gov/saw/.
The results of SARC 56 represent the
best scientific information available and
a change from the results of the previous
assessment available (GARM III).
Because the Council included an
alternative in Framework 48 to
implement the results of SARC 56 for
white hake in FY 2013, NMFS is
approving and implementing the
revised status determination criteria for
2,995
54,743
80,200
186,535
0.31
0.18
........................
0.18
MSY
(mt)
773
9,399
13,786
30,622
white hake through this final rule.
Although NMFS did not propose these
revisions in the proposed rule because
they were not yet available, the Council
specifically considered and analyzed
possible scenarios resulting from the
assessment and recommended updating
the white hake status determination
criteria for FY 2013. Although the
public did not have prior opportunity to
comment on these measures in the
Framework 48 proposed rule, the
Council’s analysis was available for
public comment throughout the Council
process. In addition, the SAW/SARC is
an open and public process, allowing
the public and managers to participate
and, frequently, to have an indication of
the results before the assessment report
is final. Nevertheless, to ensure there is
opportunity for public comment on this
new status determination criteria,
NMFS is implementing this measure as
an interim final rule and collecting
public comment on it. NMFS will
publish another final rule, if necessary,
after considering additional public
comment to finalize these criteria and
respond to any public comments.
Implementing revised status
determination criteria through this final
rule is necessary in order to incorporate
the best scientific information available
into the FMP to allow NMFS to
implement an appropriate ABC and
ACL for white hake in FY 2013.
TABLE 3—UPDATED STATUS DETERMINATION CRITERIA AND NUMERICAL ESTIMATES OF THE STATUS DETERMINATION
CRITERIA FOR WHITE HAKE
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Criteria:
Biomass Target ...........................
SSB40%MSP .................................
Values:
Biomass Target (mt) ...................
32,400 .........................................
12
Minimum Biomass Threshold ........................
⁄ Btarget ........................................................
Maximum Fishing Mortality Threshold
F40%MSP
Minimum Biomass Threshold (mt) ................
16,200 ...........................................................
Maximum Fishing Mortality Threshold ..........
0.20 ...............................................................
MSY (mt)
5,630
SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY = maximum sustainable
yield.
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8. SNE/MA Windowpane Flounder subACLs
Scallop Fishery Sub-ACL
NMFS has approved the allocation of
a sub-ACL of SNE/MA windowpane
flounder to the scallop fishery to better
ensure that the ACL is not exceeded.
The sub-ACL of SNE/MA windowpane
flounder allocated to the scallop fishery
would be 36 percent of the ABC. This
allocation is based on the 90th
percentile of scallop fishery catches (as
a percent of the total catch) for calendar
years 2001 through 2010. The scallop
fishery’s sub-ACL would be calculated
by reducing the portion of the ABC
allocated to the scallop fishery (subABC) to account for management
uncertainty. The management
uncertainty buffer is determined each
time the groundfish specifications are
set. It is anticipated that AMs would be
developed in a future management
action during 2013 through the Atlantic
Sea Scallop FMP in time to be effective
by the start of scallop FY 2014 (i.e.,
March 1, 2014), and would retroactively
apply to account for any overage in FY
2013. If the scallop fishery exceeds its
sub-ACL for SNE/MA windowpane in
FY 2013, the AMs adopted in a future
management action would be triggered.
Also, similar to the measure adopted in
Framework 47 for the scallop fishery’s
SNE/MA and GB yellowtail flounder
sub-ACLs, the scallop fishery AM for
SNE/MA windowpane flounder would
only be triggered if the total ACL is
exceeded and the scallop fishery’s subACL is also exceeded, or if the scallop
fishery exceeds its sub-ACL by 50
percent or more.
The total ACL for SNE/MA
windowpane was exceeded by more
than 100 percent in FY 2010 and FY
2011, resulting in the ABC and
overfishing level (OFL) being exceeded.
In both years, total catch by sector and
common pool vessels was below the
common pool sub-ACL for this stock
and arguably did not contribute to the
overage of the total ACL. However,
because the common pool fishery was
the only fishery with a sub-ACL and an
AM for this stock, the overage of the
total ACL triggered an AM only for the
common pool. On the other hand, catch
by the ‘‘other subcomponent’’ fisheries
alone, including the scallop and other
fisheries, exceeded the ABC in FY 2010
and the OFL in FY 2011. The large
overages in FY 2010 and FY 2011
demonstrate that an AM for the
groundfish fishery alone is not sufficient
to ensure that the ACL for this stock is
not exceeded, because it is not
responsible for the majority of catches.
Creating a sub-ACL and, subsequently,
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an AM, for the scallop fishery, which
accounted for more than 25 percent of
the total catch in FY 2011 and almost 50
percent of the catch in FY 2010, would
create accountability for those fisheries
responsible for the greatest share of the
catch and most likely to cause an
overage. Thus, a sub-ACL for the scallop
fishery would help prevent overfishing
on SNE/MA windowpane flounder as
required by the National Standard 1 and
Section 303(a)(1) of the MagnusonStevens Act and create an incentive to
minimize bycatch of this stock,
consistent with National Standard 9.
NMFS received comments on the
proposed rule expressing concern that
this measure does not maximize the
overall net benefit to the nation or
minimize adverse impacts to
communities because it would
substantially constrain scallop revenue.
As further detailed in NMFS’s responses
to these comments later in this final
rule, NMFS believes that this allocation
to the scallop fishery balances the
multiple factors taken into
consideration in achieving optimum
yield (OY), while complying with the
other requirements of the MagnusonStevens Act and the goals and objectives
of the FMP, including preventing
overfishing, minimizing bycatch, and
preserving a directed groundfish fishery.
Economic, social and ecological factors
contributed to the Council’s allocation
decisions for this sub-ACL. In addition
to creating a greater incentive to
minimize bycatch of SNE/MA
windowpane flounder while
maximizing the catch of scallops, as a
fixed percentage of the ABC this
measure ensures that allowable scallop
catches of this stock adjust to increases
or declines in the ABC and the relative
health of the stock. This allocation is
also consistent with historic catches and
maintains historic participation in the
SNE/MA windowpane flounder fishery,
is fair and equitable, and prevents
excessive accumulation of shares of this
ABC by the scallop fishery as required
by National Standard 4 and the goals of
the FMP, because it is based on recent
catch history as a proportion of the
ABC. Although this allocation may
constrain scallop catches in future
years, depending upon the ABC, to favor
the scallop industry by maximizing
overall benefits to the nation would be
inconsistent with National Standard 8
which requires that management
measures must take into account
importance of fishery resources to
fishing communities in order to provide
sustained participation of such
communities in fishing and, to the
extent practicable, minimize adverse
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impacts on such communities. For these
reasons, NMFS has approved this
measure through this final rule.
Other Sub-Components Sub-ACL
NMFS has approved the allocation of
a SNE/MA windowpane sub-ACL to the
other sub-component fisheries. In
addition to large catches of SNE/MA
windowpane flounder by the scallop
fishery in recent years, other nongroundfish fisheries have accounted for
approximately half of the total SNE/MA
windowpane flounder catch in FY 2010
and FY 2011. Up until now, any
overages of the total ACL caused by this
component of the fishery have been
applied only to the commercial
groundfish fishery, the only fishery with
a sub-ACL and AM for this stock. As a
result, there have been no measures in
place to constrain catches of SNE/MA
windowpane flounder by other nongroundfish vessels, which has
undermined the effectiveness of the
ACL and AM for this stock. By adopting
a sub-ACL and, subsequently, an AM for
these other fisheries, those fisheries
responsible for the majority of catches
in recent years would be held
accountable for any overages they cause
of the ACL for this stock. This measure
creates accountability for those fisheries
most likely to cause an overage, and
thereby reduces the risk of overfishing.
The specific amount of this sub-ACL for
FY 2013–2015 was proposed in
Framework 50 and will be published in
the final rule for that action. The
amount of this allocation would be
specified each time catch limits are set.
This administrative measure makes it
possible to adopt an AM that applies to
those non-groundfish fisheries that fish
with gear responsible for most of the
catch of this stock by the ‘‘other’’ subcomponent. The AM for SNE/MA
windowpane flounder that would apply
to commercial vessels is described in
Item 12 of this preamble.
9. Scallop Fishery Sub-ACL for GB
Yellowtail Flounder
NMFS has approved the revised subACL of GB yellowtail flounder for the
scallop fishery proposed in Framework
48. In preparation for a transition to FY
2014, 40 percent of the U.S. ABC for GB
yellowtail flounder would be allocated
to the scallop fishery in FY 2013 only.
In FY 2014 and each year after, 16
percent of the U.S. ABC for this stock
would be allocated to the scallop fishery
to better reflect its historical portion of
total catch of GB yellowtail flounder
and to provide more predictability. The
scallop fishery sub-ACL would be
calculated by reducing the scallop
fishery’s portion of the ABC (sub-ABC)
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to account for management uncertainty.
The scallop fishery sub-ACL for FY
2013 based on the U.S. ABC for GB
yellowtail flounder was proposed in the
Framework 50 proposed rule and the
final sub-ACL will be published in the
final rule for that action. NMFS would
still re-estimate the expected scallop
fishery catch of GB yellowtail flounder
for the current fishing year by January
15. If the scallop fishery is projected to
catch less than 90 percent of its GB
yellowtail flounder sub-ACL, the
Regional Administrator may reduce the
scallop fishery sub-ACL to the amount
projected to be caught, and increase the
groundfish fishery sub-ACL by any
amount up to the amount reduced from
the scallop allocation. Overages will be
calculated based on the revised subACLs for the commercial groundfish
fishery and the scallop fishery, and any
applicable AMs would be triggered.
Framework 48 also clarified that the
overage payback for any overage of the
U.S. TAC, as required by the
Transboundary Resource Sharing
Understanding, would be deducted from
the sub-ACL for the fishery component
that caused the overage.
This measure simplifies the
specification of the scallop fishery’s GB
yellowtail flounder allocation each year
by basing it formulaically on a fixed
percentage of the ABC. This would
provide stability for both the scallop
and groundfish fisheries by creating a
more predictable allocation scheme.
NMFS received comments on the
proposed rule expressing concern that
this measure does not maximize the
overall net benefit to the nation or
minimize adverse impacts to
communities because it would
substantially constrain scallop revenue.
As discussed in NMFS’s response to
these comments later in this final rule,
NMFS believes that this allocation to
the scallop fishery balances the multiple
factors taken into consideration in
achieving OY, while complying with the
other requirements of the MagnusonStevens Act and the goals and objectives
of the FMP, including preventing
overfishing, minimizing bycatch, and
preserving a directed groundfish fishery.
Economic, social and ecological factors
concerning the FMP’s goals of
preserving fishing opportunities for
groundfish vessels, minimizing negative
impacts on fishing communities, and
reducing bycatch of groundfish stocks,
contributed to the Council’s allocation
decisions for this sub-ACL and the SNE/
MA windowpane flounder sub-ACLs.
Allocating a fixed percentage of the ABC
to the scallop fishery would create a
greater incentive to avoid yellowtail
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flounder while maximizing the catch of
scallops, than an allocation based on
projected catch. A fixed percentage of
the ABC also ensures that allowable
scallop catches of GB yellowtail
flounder adjust to increases or declines
in the ABC and the relative health of the
stock, compared to a method based on
projected catch. This allocation is also
consistent with historic catches and
maintains historic participation in the
yellowtail flounder fishery, is fair and
equitable, and prevents excessive
accumulation of shares of this ABC by
the scallop fishery as required by
National Standard 4 and the goals of the
FMP, because it is based on recent catch
history as a proportion of the ABC.
Although this allocation may constrain
scallop catches in future years,
depending upon the ABC, to favor the
scallop industry by maximizing overall
benefits to the nation would be
inconsistent with National Standard 8
which requires that management
measures must take into account
importance of fishery resources to
fishing communities in order to provide
sustained participation of such
communities in fishing and, to the
extent practicable, minimize adverse
impacts on such communities. For these
reasons, NMFS has approved this
measure through this final rule.
10. Small-Mesh Fisheries sub-ACL for
GB Yellowtail Flounder
NMFS has approved a sub-ACL of GB
yellowtail flounder for small-mesh
fisheries. Small-mesh bottom trawl
fisheries are defined as vessels fishing
with bottom otter trawl gear with a
codend mesh size of less than 5 inches
(12.7 cm). These vessels fishing on
Georges Bank typically target whiting
and squid. Small-mesh fisheries would
be allocated 2 percent of the U.S. ABC
for GB yellowtail flounder each year,
after a reduction for management
uncertainty. Each time the groundfish
specifications are set, the management
uncertainty buffer necessary for these
small-mesh fisheries would be
determined. If the small-mesh fisheries
catch of GB yellowtail flounder exceeds
the sub-ACL, the pertinent AMs would
be triggered. There was not sufficient
time to develop specific AMs in this
action and allow for collaboration with
the respective FMPs and the MidAtlantic Council (e.g., Atlantic
Mackerel, Squid, and Butterfish; SmallMesh Multispecies). Although a subACL for FY 2013 was needed because of
the expected reduction in the GB
yellowtail flounder ABC in FY 2013, the
Council reasoned that allowing
additional time to work with these
respective FMPs to develop AMs would
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26125
not increase the risk of an overage in FY
2013, as long as the AMs are developed
as soon as possible and applied
retroactively to be effective for any
overage in FY 2013. The small-mesh
fisheries have not previously caused an
overage of the GB yellowtail flounder
ACL, so the situation was deemed less
urgent than for SNE/MA windowpane
flounder.
Prior to Framework 48, the quota for
GB yellowtail flounder has been
allocated to only the commercial
groundfish and scallop fisheries.
Although small-mesh fishery catches of
GB yellowtail flounder have generally
been less than 100 mt in recent years,
the U.S. ABC for the stock has been
declining. As a result, the small-mesh
fishery catches account for an increasing
percentage of the total U.S. catch.
Allocating a sub-ACL and,
subsequently, creating an AM for these
fisheries would help ensure that smallmesh fishery catches would be
constrained and prevent overages of the
annual quota, thereby reducing the risk
of overfishing, consistent with the
requirements of National Standard 1
and section 303(a)(1) of the MagnusonStevens Act. In addition, because GB
yellowtail flounder is jointly managed
with Canada, keeping U.S. catches
within the U.S. TAC is important to
achieve the management and
conservation objectives of the
Understanding. This measure would
also further the goals and objectives of
the FMP and National Standard 9 to
minimize bycatch to the extent
practicable, by creating an incentive for
small mesh fisheries to reduce bycatch
of this stock. A sub-ACL for small-mesh
fisheries, and associated AMs, would
help ensure the component of the
fishery that causes an overage would be
held accountable. This measure would
also likely prevent inequities that would
occur if the commercial groundfish and
scallop fisheries were held accountable
for overages caused by the small-mesh
fisheries.
11. Recreational Fishery AM
Framework 48 proposed to revise the
recreational AM so that the Regional
Administrator may proactively adjust
recreational management measures to
ensure the recreational fishery will
achieve, but not exceed, its sub-ACL.
The recreational fishery currently only
has a sub-ACL for GOM cod and for
GOM haddock. To the extent possible,
any changes to the recreational
management measures would be made
prior to the start of the fishing year and
adopted through procedures consistent
with the Administrative Procedure Act
(APA). In addition, the Regional
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Administrator would consult with the
Council, or the Council’s designee, and
would tell the Council, or its designee,
what recreational measures are under
consideration for the upcoming fishing
year. If time allows, the Council would
also provide its Recreational Advisory
Panel (RAP) an opportunity to meet and
discuss the proposed management
measures. These AMs require
development in consultation with the
Council, because the appropriate suite
of measures (e.g., bag limit, minimum
fish size, season) depends on the ACL
specified. A default suite of measures
are not automatically triggered, because
the sub-ACL and, thus, appropriate
measures to achieve that sub-ACL, may
differ between years. Similar to trip
limits for the commercial common pool
fishery, a certain suite of measures are
projected to achieve a certain catch. To
select the appropriate suite of measures,
the ACL for the fishing year in which
they will be used must be known in
order to ensure the projected catch does
not exceed the target. The Council
provided guidance on its preference of
measures that NMFS should consider if
additional recreational effort controls
are necessary to reduce GOM cod or
GOM haddock catches, though this
guidance does not restrict NMFS’s
discretion in selecting management
measures that would best achieve, but
not exceed, the recreational sub-ACL. If
additional effort controls are necessary
to reduce cod catches, the Council’s
non-binding preference is that NMFS
first consider increases to minimum fish
sizes, then adjustments to seasons,
followed by changes to bag limits. If
additional effort controls are necessary
to reduce haddock catches, the
Council’s non-binding preference is that
NMFS first consider increases to
minimum size limits, then changes to
bag limits, and adjustments to seasons
last.
NMFS has approved this measure in
Framework 48 because it would
improve accountability in the
recreational fishery. Currently, the
recreational fishery AM only allows the
Regional Administrator to change
recreational measures if an ACL is
exceeded. In addition, due to the delay
in availability of recreational catch data
at this time, AMs can only be
implemented late in the year following
an overage, at the start of the next
recreational fishing season. This
measure also gives NMFS and the
Council the ability to adapt to changing
fishery conditions, by evaluating
recreational measures before the start of
the fishing year to ensure those
measures facilitate a target catch
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consistent with the sub-ACLs specified
for the recreational fishery. This would
help prevent overages of the recreational
sub-ACL, and prevent substantial
underharvests of the recreational subACL. In addition, the requirement for
NMFS to consult with the Council while
developing measures allows increased
opportunity for public comment, and
provides states more opportunity to
coordinate their recreational measures
with NMFS.
Through the Framework 50 proposed
rule, NMFS proposed and collected
public comments on adjustments to
recreational measures for FY 2013. Final
recreational measures for FY 2013 will
be announced in the final rule for that
action.
12. Commercial Groundfish Fishery
AMs
Change to AM Timing for NonAllocated Stocks
NMFS has approved the revised
timing for commercial groundfish
fishery AMs for stocks not allocated to
sectors (GOM/GB windowpane
flounder, SNE/MA windowpane
flounder, ocean pout, Atlantic halibut,
Atlantic wolffish, and SNE/MA winter
flounder), to improve the effectiveness
of AMs adopted through Frameworks 47
and 48 for these stocks. Prior to this
action, the AMs for these stocks would
be implemented in the second year
following an overage of the total ACL.
For example, if the total ACL for ocean
pout was exceeded in Year 1, the AM
would be implemented in Year 3.
However, this delay may not be needed
in all cases. For example, fisherydependent data is available in almost
real time in the commercial groundfish
fishery. If information was available
during Year 1 that the commercial
groundfish fishery had exceeded the
overall ACL for ocean pout, under the
current system an AM would still not be
implemented until Year 3. This action
revises the timing for these AMs, so that
if reliable information is available
during the fishing year (Year 1) that
shows the total ACL has been exceeded,
as in the example above, the respective
AM for the stock would be implemented
at the start of the next fishing year (Year
2). After the AM is implemented, if
updated catch information shows that
the total ACL was not exceeded, the AM
would be rescinded consistent with the
APA. This measure increases the
effectiveness of the AM and would help
prevent overfishing in consecutive
years, consistent with the requirements
of National Standard 1 of the MagnusonStevens Act.
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The Council, as well as commenters
on the Framework 48 proposed rule,
expressed concerns that final catch data
for the non-allocated stocks, which
include catch from state waters and
non-groundfish fisheries, could not be
reliably available in time to trigger an
AM in Year 2, or earlier. NMFS has
heard the Council and industry’s
concerns with respect to the availability
of data, and believes this measure
balances the need for effective AMs
with the need for stability in order for
fishing businesses to plan for the
upcoming fishing year. This action
modifies the timing of the AMs so that
should reliable information be available
(e.g., the commercial groundfish fishery
catches exceed the total ACL for a stock)
the AM could be implemented more
quickly. However, to provide stability
for groundfish vessels, any applicable
AMs for the non-allocated stocks would
only be implemented at the start of a
fishing year.
The Framework 48 proposed rule
stated that if this measure was approved
and implemented on or before May 1,
2013, and reliable information shows
that the total ACL for a non-allocated
stock is exceeded in FY 2012, then the
respective AM would be implemented
on May 1, 2013, for sector and common
pool vessels. NMFS has reviewed
available catch information as of April
16, 2013 and determined that, based on
reliable catch information, the overall
ACLs for these stocks have not been
exceeded. Thus, none of the nonallocated stock AMs will be
implemented for sector and common
pool vessels in FY 2013. For this
determination, NMFS considered
commercial groundfish catches
calculated from the Data Matching and
Imputation System (DMIS) reliable due
to the near real-time availability to
estimate discards. To estimate
commercial scallop fishery catches,
NMFS used audited and preliminary
observer data and fleet-wide scallop
data from DMIS through February 28,
2013. NMFS determined this
information to be reliable based on the
near real-time availability of observer
data to estimate discard rates in the
scallop fishery. NMFS continues to
make improvements to its data
collection programs to improve the
timeliness of data, and would evaluate
the reliability of this information for
making such determinations on an
annual basis. Area-Based AMs for
Atlantic Halibut, Atlantic Wolffish, and
SNE/MA Winter Flounder.
NMFS has approved the proposed
area-based AMs for Atlantic halibut,
Atlantic wolffish, and SNE/MA winter
flounder through this final rule. If the
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total ACL is exceeded for any of these
stocks by an amount greater than the
management uncertainty buffer, gear
restrictions would be triggered in
designated areas that have been
identified as hotspots for catches of
these stocks. For overages of the
Atlantic halibut and Atlantic wolffish
ACLs, trawl vessels would be required
to use approved selective gear, and sink
gillnet and longline vessels would not
be allowed to fish in the applicable AM
area. For overages of the SNE/MA
winter flounder ACL, only trawl gear
would be restricted in the applicable
AM area. As previously adopted in
Framework 47, possession of nonallocated stocks would also be
prohibited at all times, except for
Atlantic halibut, which would be
reduced from one fish per trip to zero
if the total ACL is exceeded by an
amount greater than the management
uncertainty buffer. Approved selective
trawl gears include the separator trawl,
Ruhle trawl, mini-Ruhle trawl, rope
trawl, and other gear authorized by the
Council in a management action or
approved for use consistent with the
process defined in § 648.85(b)(6).
Currently, the effective management
uncertainty buffer at the overall ACL
level is 3–7 percent for non-allocated
stocks, depending upon the stock. The
management uncertainty buffer can be
changed each time groundfish
specifications are set. Because these AM
areas are designed to account for an
ACL overage of up to 20 percent, if the
total ACL is exceeded by 20 percent or
more for one of these stocks, the AM
would still be implemented, but the
measure would be reviewed by the
Council in a future management action.
In addition, should a sub-ACL be
allocated to other fisheries in a future
action, and AMs developed for those
fisheries, the AM for any fishery would
be implemented only if the total ACL for
the stock is exceeded, and the fishery
also exceeds its sub-ACL. A detailed
description of the development of these
measures was included in Item 6 of the
Framework 48 proposed rule and is not
repeated here.
Note that Framework 50 allocates
SNE/MA winter flounder to the
groundfish fishery and allows landings
beginning in FY 2013. Thus, sectorspecific inseason AMs will apply for
any overage from a sector’s allocation in
the next fishing year, and this areabased AM will apply only to common
pool vessels if the common pool
exceeds its sub-ACL for the stock.
NMFS has approved this measure
because it creates effective reactive AMs
to help prevent overfishing and ensures
accountability in the commercial
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groundfish fishery. Proactive AMs
implemented by Amendment 16 and
Framework 47 were intended to prevent
ACLs from being exceeded. However,
reactive AMs are necessary to correct or
mitigate overages of ACLs if they occur,
as explained in the U.S. District Court
of Appeals decision in Oceana v. Locke
et al., which found that the lack of
sector-specific reactive AMs for the nonallocated stocks violated the MagnusonStevens Act. These measures are
necessary to prevent overfishing of nonallocated stocks by adjusting fishery
measures to reduce the likelihood that
an ACL is exceeded in consecutive
years. These reactive AMs are also
necessary to address a remand by the
Court as a result of that litigation, and
to be consistent with the National
Standard 1 guidelines.
Commenters on the proposed rule
expressed concern that these AMs are
triggered effectively by an overage of the
ABC as opposed to the ACL. As NMFS
explained in the proposed rule, this
trigger level is an artifact of how the
AMs were designed and not out of any
intent to provide additional buffers
before an AM is triggered. The PDT was
not able to design an AM that could
account for such a small overage of 1–
3 percent that would not be easily
undermined by a shift of effort to other
areas. Furthermore, NMFS considers
this to be an issue of semantics and one
that does not violate the National
Standard 1 guidelines. Defining the
trigger as an overage greater than the
management uncertainty is in concept
the same as establishing an annual catch
target (ACT) and a higher ACL (e.g., an
ACL set equal to the ABC) that serves
as the trigger for AMs, an approach
which is allowed under National
Standard 1 guidelines.
Commenters were also concerned
about the lack of automatic measure
adjustment that would account for
overages larger than 20 percent of the
ACL. NMFS maintains that these AMs
are to account for possible overages by
non-groundfish fisheries shown to have
de minimis catches of groundfish. It is
not expected that these components
themselves are likely to exceed the subACL by more than 20 percent,
particularly with the continued
implementation of proactive AMs that
appear to have been effective at
constraining catch below the ACLs in
recent years. If zero possession
continues to be an effective proactive
AM, the reactive AM will likely not be
triggered.
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Revised AM for SNE/MA Windowpane
Flounder
NMFS has approved the revised AM
for SNE/MA windowpane flounder in
this final rule. The revised AM now
applies to the groundfish fishery and the
other sub-component fisheries, which
have been allocated a sub-ACL of SNE/
MA windowpane flounder through this
action (see Item 8 in this preamble). If
the total ACL for this stock is exceeded
by an amount greater than the
management uncertainty buffer, and the
‘‘other sub-component’’ sub-ACL is also
exceeded, then the area-based AM,
described above, would apply to all
trawl vessels using a codend with a
mesh size of 5 inches (12.7 cm) or
larger.
Prior to Framework 48, the AM for
SNE/MA windowpane flounder only
applied to commercial groundfish
vessels. However, the commercial
groundfish fishery has typically
accounted for less than 25 percent of the
total SNE/MA windowpane flounder
catch in recent years. A large portion of
the total SNE/MA windowpane flounder
catch is caught by trawl vessels in nongroundfish fisheries fishing with mesh
size of 5 inches (12.7 cm) or greater.
Thus, the current AM may not
effectively restrict catches of this stock
if the total ACL is exceeded, which
increases the likelihood of consecutive
overages in future fishing years. This
revision helps ensure that, in the event
of an overage, catches would be
effectively restricted to prevent
overfishing. In addition, this action
would remove potential inequities that
could occur if only the commercial
groundfish fishery was subject to an AM
for SNE/MA windowpane flounder,
even though its catches represent a
small portion of the total catch for this
stock.
As implemented in Framework 47,
the area-based AM for commercial
groundfish vessels is triggered only if
the commercial groundfish fishery
exceeds its sub-ACL and the total ACL
is also exceeded by an amount greater
than the management uncertainty
buffer. Similarly, the scallop fishery’s
AM is triggered only if the total ACL is
exceeded and the scallop fishery subACL is also exceeded. This ensures that
each fishery is only accountable for any
overages it caused and not those caused
by any other fishery with a sub-ACL of
this stock.
As discussed in the previous section,
commenters on the proposed rule
expressed concern that non-allocated
stock AMs are triggered effectively by an
overage of the ABC as opposed to the
ACL, and that these AMs do not have
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automatic adjustments sufficient to
cover an overage of more than 20
percent of the ACL. As NMFS explains
above and in the response to these
comments, the smallest effective AM the
PDT could design accounts for at the
least 5 percent of the ACL. Furthermore,
NMFS considers this to be an issue of
semantics and one that does not violate
the National Standard 1 guidelines.
Defining the trigger as an overage greater
than the management uncertainty is in
concept the same as establishing an
ACT and a higher ACL that serves as the
trigger for AMs, an approach which is
allowed under the National Standard 1
guidelines. NMFS also believes that
these AMs are sufficient, because
fisheries in the other sub-component are
shown to have de minimis catches of
groundfish. It is not expected that these
components themselves are likely to
exceed the ACL by more than 20
percent, given that the sub-ACL is based
on estimated catch and an additional
sub-ACL is being specified to constrain
the catch of the scallop fishery.
Revised Handgear Permit AMs
The revised handgear AMs are
approved through this final rule. This
measure exempts Handgear A and
Handgear B permits from the white hake
trimester TAC AM. This exemption
would remain effective unless a future
action modified this AM. Handgear A
and B common pool vessels would still
be subject to the trimester TAC for cod,
haddock, and pollock. This measure
also authorizes the Regional
Administrator to exempt Handgear A
and Handgear B common pool vessels
from the trimester TAC provisions for
other stocks if catch by these vessels is
less than 1 percent of the total common
pool catch of that species or stock. This
determination would be made prior to
the start of the fishing year, and would
be implemented through procedures
consistent with the APA.
Currently, all common pool vessels,
including vessels using handgear, are
subject to trimester TACs for allocated
stocks. When 90 percent of the trimester
TAC for a stock is projected to be
caught, the area where the stock is
predominately caught will be closed for
the remainder of the trimester to gear
capable of catching that stock. The
common pool trimester TAC AMs were
designed to apply only to gear types that
caught the pertinent stock. Prior to this
action, hook gear was subject to the
trimester TAC provisions for cod,
haddock, white hake, and pollock,
although hook gear has been shown to
very rarely catch white hake, making up
less than 1 percent of the total common
pool catch of this stock each year. Thus,
NMFS has approved this measure
because it maintains the original
purpose of these inseason AMs while
providing flexibility to small, handgear
vessels that are not responsible for
much catch of this stock. In addition to
the exemption for white hake approved
through this final rule, this measure
allows modifications to other trimester
TAC AMs in the future, should new
information become available that
shows handgear vessels rarely catch a
stock or species, or the combined catch
of these vessels is less than 1 percent of
the total common pool catch. This
would increase the effectiveness of the
common pool AMs, and would prevent
potential inequities that may occur by
applying an AM to vessels not
responsible for catching, or exceeding, a
trimester TAC.
13. Commercial Fishery Minimum Fish
Sizes
NMFS has approved the reductions to
the minimum fish sizes for several
groundfish stocks to reduce regulatory
discards and increase revenue from
catch. The new minimum sizes are
listed in Table 4. In the groundfish
fishery, all catch, including landings
and discards, are counted against ACLs.
Commercial discards for most stocks are
assumed to have 100-percent mortality,
so 100 percent of discards for these
stocks are deducted from quota
allocations; thus, discards are lost
revenue for groundfish vessels.
Reducing the minimum size for several
groundfish stocks would reduce waste
and allow the commercial industry to
recoup some revenue from fish that
would otherwise be discarded. This
small amount of additional revenue may
help the groundfish industry cope with
the substantial reductions in catch
limits expected in FY 2013.
TABLE 4—CHANGES TO MINIMUM FISH SIZES LIMITS FOR GROUNDFISH STOCKS
Proposed FW
48 Size
(inches)
Current Size
(inches)
Cod ............................................................................................
Haddock .....................................................................................
Pollock .......................................................................................
Witch flounder (gray sole) .........................................................
Yellowtail flounder ......................................................................
American plaice (dab) ................................................................
Atlantic halibut ...........................................................................
Winter flounder (blackback) .......................................................
Redfish .......................................................................................
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Species
22 (55.9 cm) .............................................................................
18 (45.7 cm) .............................................................................
19 (48.3 cm) .............................................................................
14 (35.6 cm) .............................................................................
13 (33.0 cm) .............................................................................
14 (35.6 cm) .............................................................................
41 (104.1 cm) ...........................................................................
12 (30.5 cm) .............................................................................
9 (22.9 cm) ...............................................................................
NMFS received several comments on
the Framework 48 proposed rule
expressing concern that the revised
minimum sizes may increase targeting
and bycatch of small fish and impact the
rebuilding of groundfish stocks. As
discussed in the proposed rule, the
Framework 48 EA, and in the response
to comments, the biological impacts that
might result from these new minimum
fish sizes depend on whether selectivity
in the fishery shifts to smaller fish and
whether catch limits are adjusted to
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account for a shift, which cannot be
accurately predicted. Although difficult
to predict, it is possible that decent
prices for smaller size classes of fish
could incentivize the targeting of
smaller fish at the new minimum size.
According to analysis in Framework 48,
this is most likely to occur for yellowtail
flounder, for which there is little
difference in price between size classes
and a simple change in the type of
codend used can modify the size of fish
caught. However, the revised minimum
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19 (48.3 cm)
16 (40.6 cm)
No change
13 (33 cm)
12 (30.5 cm)
12 (30.5 cm)
No change
No change
7 (17.8 cm)
size is only an inch smaller than the
existing minimum size and still above
the length at 50-percent maturity for this
stock. Analysis in Framework 48 for CC/
GOM yellowtail flounder showed that a
shift in selectivity by one year without
a corresponding change in ABCs would
result in a rebuilding time that is almost
the same and a higher probability of
overfishing. However, if the change in
selectivity is detected and ABCs are
revised, these potential impacts are
mitigated. In light of these concerns,
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and at the request of the Council, NMFS
is exploring ways to monitor the length
frequency of catch in the commercial
groundfish fishery beginning in FY 2013
to see if a change in selectivity could be
detected. If such an analysis could be
completed, NMFS could use this
information to advise the Council if
adjustments should be considered in a
future action.
The Massachusetts Division of Marine
Fisheries (MADMF) submitted a
comment on the proposed rule raising
concerns that if these measures are
approved and state agencies do not
follow suit, sector vessels would be
forced to discard fish that do not meet
the state minimum fish size in violation
of the federal requirement for them to
retain all fish of legal size. NMFS is also
concerned about discrepancies between
state and federal minimum fish sizes
complicating compliance and
enforcement of this measure. If a state
does not make corresponding
adjustments to fish sizes, vessels could
land their catch in other states’ ports.
NMFS does not favor this result and the
impacts it would have on the nonconforming state, and, for that reason
strongly urges all affected states to
match these size reductions. To address
this concern, NMFS is delaying the
effective date of these new minimum
sizes to July 1, 2013, to allow state
agencies additional time to consider and
make corresponding adjustments to
their minimum sizes.
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14. Sector Monitoring Programs
Eliminate Dockside Monitoring
NMFS has approved the elimination
of dockside monitoring requirements for
the groundfish fishery. Amendment 16
required sectors and the common pool
to implement a dockside monitoring
program to validate dealer-reported
landings beginning in FY 2010 and
2012, respectively. Framework 45
delayed the implementation of these
requirements after only a year until FY
2013. Like at-sea monitoring, the
Council is concerned about the
industry’s ability to support this cost
burden in FY 2013 and in future years,
particularly in light of concerns about
its utility, and proposed eliminating the
dockside monitoring program altogether
through Framework 48.
NMFS approved this measure because
it believes that dealer reporting
combined with dockside intercepts by
enforcement personnel are sufficient to
ensure reliable landings data at this
time. Dealer-reported fish weights are
used as the principle source to monitor
commercial landings. Thus, dockside
monitor reports, which verify dealer-
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recorded weights, are somewhat
redundant. Random dockside intercepts
by enforcement personnel, facilitated by
trip-end hails, provide a deterrent
against misreporting of catch and illegal
landings. In addition, eliminating the
program would reduce costs and
potentially increase the profitability of
the commercial industry in future years.
It was not clear from Framework 48
whether eliminating the dockside
monitoring program included removing
the current dockside monitoring hail
requirements. NMFS proposed
maintaining hail requirements in the
Framework 48 proposed rule, because
they facilitate the monitoring and
enforcement of sector operations and
landings. NMFS did not receive any
comments from the Council or members
of the public opposing this proposal,
thus NMFS concludes that it is justified
in maintaining the hail requirements at
this time. These hails will be a useful
tool for both NMFS and sector managers
to monitor sector vessels’ activities,
including the use of certain sector
exemptions, and to facilitate dockside
intercepts by enforcement personnel.
NMFS is also clarifying the regulatory
text of this proposed rule at
§ 648.10(k)(1), consistent with
Framework 45, so that hails may be
modified in the future to be streamlined
with other reporting requirements that
collect similar fishery data, such as
VTRs and VMS catch reports.
Sector Monitoring Goals and
Performance Standard
NMFS has approved the proposed
revisions to the goals and objectives,
and performance standard, established
for sector monitoring programs and,
relying in part on section 305(d) of the
Magnuson-Stevens Act, implements
new regulatory text to reflect these
revised goals and objectives and ensure
they are carried out in a manner
consistent with the Act. Amendment 16
did not lay out explicit goals for sector
monitoring, but described several
general purposes for the programs,
including to provide accurate estimates
of sector catch and to verify area and
gear fished, to ensure sector allocations
are not exceeded. The lack of welldefined goals and purposes for sector
monitoring requirements has led to
confusion about how to implement
these requirements and has hindered
efforts to improve them. This measure
and its implementing regulatory text
clarify and elaborate on the goals and
objectives for existing and future
groundfish monitoring programs to help
the Council and NMFS to implement
monitoring requirements consistent
with the goals of the FMP and to
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26129
evaluate these programs in the future.
More explicit goals and objectives
would also assist NMFS and the sectors
in designing and evaluating proposals to
satisfy monitoring requirements in
sector operations plans, ensuring the
reliability of catch estimates and
accountability of catches. The new goals
and objectives include that groundfish
monitoring programs improve
documentation of catch, determining
total catch and effort of regulated
species, and achieve a coverage level
sufficient to minimize effects of
potential monitoring bias to the extent
possible, while enhancing fleet viability.
Monitoring programs should also reduce
the cost of monitoring, streamlining data
management and eliminating
redundancy, exploring options for costsharing, while recognizing the
opportunity costs of insufficient
monitoring. Other goals and objectives
include incentivizing reducing discards,
providing additional data streams for
stock assessments, reducing
management and/or biological
uncertainty, and enhancing the safety of
the monitoring program. It is also an
explicit goal of such programs to
periodically evaluate them for
effectiveness. The complete list of goals
and objectives for groundfish
monitoring programs is specified in the
NE multispecies regulations at
§ 648.11(l) and in Framework 48.
Amendment 16 specified a
performance standard that coverage
levels must be sufficient to at least meet
the coefficient of variation (CV)
specified in SBRM (a CV of 30 percent),
but was unclear as to what level the CV
standard is to be applied to—discard
estimates at the stock level for all
sectors, or for each combination of
sector and stock. This has resulted in a
lack of specific direction and
specification about the appropriate
coverage level needed to ‘‘accurately
monitor sector operations.’’ This
measure in Framework 48 clarifies that
the CV standard is intended to apply to
discard estimates at the overall stock
level for all sectors combined. As
discussed in NMFS’s response to
comments on this measure, the Council
and NMFS believe this level is sufficient
as a minimum standard for monitoring
sector ACEs, consistent with the goals of
Amendment 16 and the FMP.
Amendment 16 specified that coverage
levels should be less than 100 percent,
which requires that the discard portion
of catch, and thus total catch, be an
estimate. The level of observer coverage,
ultimately, should provide confidence
that the overall catch estimate is
accurate enough to ensure that sector
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fishing activities are consistent with
National Standard 1 requirements to
prevent overfishing while achieving on
a continuing basis optimum yield from
each fishery. NMFS’s analysis of CVs
achieved at the sector-stock level using
a performance standard at the stock
level showed that the vast majority of
ACE level catch figures achieved a CV
of 30 percent or better. This
examination revealed that for 207 of the
256 ACE allocations, the percent of
discard pounds for which the CV was
greater than 30 percent was less than 1
percent. For 43 of the remaining ACE
allocations, the percent of discard
pounds for which the CV was greater
than 30 percent ranged from 1–9.9
percent. There were 6 ACE allocations
for which the percent of discard pounds
with a CV greater than 30 percent
ranged from 10–66 percent. A report of
this analysis is available at: http://www.
nero.noaa.gov/ro/fso/reports/Sectors/
ASM/FY2013_Multispecies_Sector_
ASM_Requirements_Summary.pdf
Discards are only a portion of total
catch, thus the majority of catch
estimates are based on landings
information, which is obtained by
dealer reported data, verified by VTRs,
and sector weekly reports. In addition,
NMFS and sector managers engage in an
extensive reconciliation process to
quality assure and quality check data
streams used to estimate and monitor
sector catch toward ACEs. To further
guard against possible uncertainty in
these estimates resulting in an overage
at the ACL level, substantial
management uncertainty buffers are
established before the ACL and subACLs are allocated. Based on this
analysis, we concluded that a CV
standard at the stock level provides
coverage rates that are sufficiently
reliable to monitor sector ACEs. Thus
NMFS has approved this measure in
Framework 48.
NMFS will use this standard to help
determine the minimum coverage rates
for sector at-sea monitoring programs in
future fishing years. Note that, although
the Framework 48 document discusses
the clarified standard with respect to
‘‘allocated stocks,’’ the final regulatory
text applies the CV standard to all
groundfish stocks, allocated and nonallocated. This was an inadvertent error
in the Framework 48 document and,
thus, the Council has deemed the
corrected regulatory text as consistent
with its intent.
This measure also makes clear what
other factors should be taken into
account in determining the appropriate
level of coverage for groundfish
monitoring programs, as described in
the clarified goals and objectives for
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monitoring programs. NMFS interprets
these provisions as guidance based on a
practicability standard for determining
the level of at-sea monitoring coverage
that is appropriate for monitoring sector
operations to help ensure that overall
catch by sector vessels does not exceed
ACEs and ACLs. Thus, NMFS has
revised the regulatory text with respect
to sector monitoring requirements to
reflect the clarified goals and
performance standard for sector
monitoring programs, and to take into
account the National Standards and
other requirements of the MagnusonStevens Act. NMFS has revised the
regulatory text at § 648.87(b)(1)(v)(B) to
read that coverage levels must at least
meet the CV standard at the overall
stock level and be sufficient to monitor
sector operations, to the extent
practicable, in order to reliably estimate
overall catch by sector vessels.
In addition to the revised goals and
objectives in Framework 48, NMFS will
specifically take into account National
Standards 2, 7, and 8 in making its
determination of the appropriate level of
at-sea monitoring coverage for sectors
on an annual basis. These National
Standards specifically speak to using
the best scientific information available,
minimizing costs and avoiding
unnecessary duplication where
practicable, taking into account impacts
on fishing communities, and
minimizing adverse economic impacts
to the extent practicable.
Reduce At-Sea Monitoring for Monkfish
Trips
Framework 48 proposed to implement
a lower at-sea coverage rate for sector
vessels fishing on a monkfish day-at-sea
(DAS) in the SNE Broad Stock Area with
extra-large mesh gillnets. Currently,
sector monitoring requirements are
defined to apply to any trip where
groundfish catch counts against a
sector’s ACE. Because the Skate and
Monkfish FMPs require the use of a
DAS, including a groundfish DAS, to
target these species, sector vessels
fishing for monkfish and skates are
charged ACE for any landings or
discards of groundfish and are subject to
sector at-sea monitoring coverage on
these trips. When truly targeting
monkfish or skates, however, sector
vessels often use gear that has little or
no bycatch of groundfish. With limited
resources for at-sea monitoring, covering
trips targeting skate or monkfish is
arguably a waste of resources and does
not contribute to improving the overall
precision and accuracy of discard
estimates. Thus, NMFS has approved
this measure in Framework 48 that
exempts a subset of sector trips that are
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declared into the SNE Broad Stock Area
on a monkfish DAS and using extralarge mesh gillnets from the standard atsea monitoring coverage rate. This
measure should reduce at-sea
monitoring costs to sectors, particularly
to gillnet vessels that fall in this
category. It would also allow resources
to be diverted to monitor trips that catch
more groundfish, which could improve
discard estimates for directed
groundfish trips, and all other sector
trips would still be required to meet the
CV standard at a minimum.
NMFS will specify some lower
coverage rate for these trips on an
annual basis when determining
coverage rates for all other sector trips.
At a minimum, these trips would get
Northeast Fishery Observer Program
(NEFOP) coverage. As discussed in Item
8 of the Framework 48 proposed rule,
NMFS has determined that NEFOP
coverage is sufficient to monitor these
trips in FY 2013. Because this subset of
trips would have a different coverage
level than other sector trips in the SNE
Broad Stock Area, NMFS has
determined that these trips require a
separate discard strata for each stock to
ensure the different coverage levels do
not bias discard estimates. To facilitate
deploying appropriate coverage levels, a
sector vessel must notify NEFOP as to
whether it intends to fish under this
exemption through the Pre-Trip
Notification System (PTNS). NMFS will
provide specific instructions for how to
declare this option in PTNS in a Fishery
Bulletin sent to all sector vessels. To
minimize the possibility that this
measure could be used to avoid at-sea
monitoring coverage, only vessels
meeting the criteria and intending to
fish exclusively in the SNE Broad Stock
Area are eligible for lower coverage.
Vessels declaring multi-Broad Stock
Area trips are not eligible for the lower
selection probability. In addition, a
vessel is already prohibited from
changing its fishing plan for a trip once
a waiver from coverage has been issued.
NMFS has revised the pre-trip
notification regulations at § 648.11(k)(1)
to make clear that a vessel’s fishing plan
includes the area to be fished, whether
a monkfish DAS will be used, and gear
type to be used.
This measure also requires that NMFS
develop a method for identifying these
trips in the fishery dependent datasets
in order to ensure they are appropriately
stratified in stock assessments. The
NMFS Northeast Regional Office is
working with the Northeast Fisheries
Science Center to identify the
appropriate method to transmit this
information to assessment scientists. To
assist NMFS in identifying these trips
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for appropriate stratification in discard
estimates, NMFS may require sector
vessels intending to use this exemption
to submit a trip-start hail declaring their
intent to NMFS before departing port. If
NMFS determines a trip-start hail is
necessary, detailed instructions for
submitting hails would be specified in
a Fishery Bulletin distributed to all
sector vessels.
15. List of Allowable Sector Exemption
Requests
NMFS has approved a provision in
Framework 48 to allow sectors to submit
limited requests for exemption from
portions of year-round closure areas.
Framework 48 proposed to amend the
list of regulations that sectors could not
request exemption from. Amendment 16
allowed a sector to make requests to the
Regional Administrator for exemption
from some NE multispecies regulations
as part of its annual sector operations
plan. Amendment 16, and later
Framework 47, identified a list of FMP
measures that sectors could not request
exemption from, including: Year-round
closure areas; permitting restrictions
(e.g., vessel upgrade limits, etc.); gear
restrictions designed to minimize
habitat impacts (e.g., roller gear
restrictions, etc.); reporting
requirements; and AMs for nonallocated stocks. Sectors were
prohibited from requesting these
exemptions because they serve multiple
purposes and do not necessarily act
exclusively as mortality controls.
Beginning in FY 2013, sectors may
request exemption from the year-round
groundfish mortality closures, except for
where they overlap current or proposed
habitat closed areas. These areas are
defined as the existing habitat closed
areas specified at § 648.81(h) and the
Fippennies Ledge area under
consideration as a potential habitat
management area in the Omnibus EFH
Amendment currently under
development by the Council. Sectors
may not request exemption from the
Western GOM Closed Area, where it
overlaps with a GOM Rolling Closure
Area in effect. At this time, GOM
Rolling Closure Area III overlaps the
northeast corner of the Western GOM
Closed Area, so sectors would not be
allowed to request access to this portion
of the Western GOM Closed Area during
May. Sectors may also not request
access to Closed Area I and II from
February 16th through April 30th.
Council members, members of the
public, the fishing industry, and
environmental groups expressed a
number of concerns during the
development of Framework 48 and in
the public comment period on the
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proposed rule, about allowing
additional access to groundfish closed
areas. Some comments concerned the
potential for this measure and any
proposed sector exemptions to
undermine measures under
consideration in the Omnibus EFH
Amendment. Concerns were also raised
about potential impacts to protected
species, spawning groundfish, and to
other commercial species, like lobsters,
from opening these areas to additional
fishing effort. Some commenters also
raised concerns that allowing
groundfish vessels into these areas,
mainly Closed Area II, could increase
gear conflicts between mobile and
lobster gear. To address some of these
issues, the Council imposed the
limitations described above, excluding
existing and potential habitat closed
areas to preserve the process under way
to evaluate these areas in the Omnibus
EFH Amendment. The Council also took
steps to continue protections for
spawning groundfish by including
seasonal restrictions on any sector
exemptions. NMFS responds to specific
comments submitted on the proposed
rule for Framework 48 in this final rule.
As NMFS clarified in the proposed
rule, Framework 48 does not actually
approve the exemptions needed to fish
in these closed areas. The impacts of
any actual fishing effort, including the
concerns raised in public comments
during the development of Framework
48, would be evaluated and could be
mitigated through the annual review
and approval of sector operations plans
and exemption requests for each fishing
year. The Council has already asked that
the specific issues raised during the
development of Framework 48 be
evaluated by NMFS in the consideration
of any specific sector exemption
requests. In addition, many of the issues
regarding sector access to closed areas
raised in public comments on the
proposed rule, will be analyzed should
NMFS propose granting sector
exemption closed area access. The
sector exemption review and approval
process also provides better opportunity
to address specific concerns with the
potential impact of actual sector
proposals. The Regional Administrator
may include stipulations and
constraints on specific exemptions to
facilitate the monitoring and
enforcement of sector operations or as
mitigation measures to address specific
potential impacts.
After review of public comments,
NMFS has approved this measure in
this final rule. The Council designed
this measure to maintain the purpose of
existing habitat areas to minimize the
adverse effects of fishing on EFH, and
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preserve the consideration of additional
habitat and other management areas in
the Omnibus EFH Amendment. The
Council also took steps to limit potential
impacts of requests on spawning
groundfish. This change to the list of
prohibited exemptions would allow the
consideration and analysis of specific
sector exemption requests on a case-bycase basis. If approved, sector
exemptions to portions of these areas
may help mitigate the expected
reductions in FY 2013 catch limits by
allowing sectors to potentially increase
catches of healthy groundfish stocks
such as GB haddock and pollock that
may be more abundant in these areas.
In anticipation of this change being
approved for FY 2013, sectors submitted
requests for exemptions from portions of
the year-round closed areas in their FY
2013 operations plans. Due to the need
for additional time to analyze these new
exemptions adequately, NMFS intends
to consider these sector requests in a
separate rulemaking from the general
approval of sector operations plans for
FY 2013. The closed area exemption
requests would be considered as
amendments to the sector operations
plans through a proposed and final rule
that would be available for public
comment with an accompanying
National Environmental Policy Act
(NEPA) analysis. Any closed area
exemption requests, if approved, would
not be in place until after the start of the
2013 fishing year.
16. Additional Corrections
In addition to the changes specified
above, the following changes to the
regulations are approved to correct
incorrect references and to further
clarify the intent of the Council.
In § 648.4(a)(1)(ii), this rule corrects a
misspelling of the word ‘‘multispecies.’’
In § 648.80(a)(3)(vii), this rule clarifies
that rockhopper and roller gear
requirements of the GOM/GB Inshore
Restricted Roller Gear Area apply only
to groundfish vessels on a NE
multispecies DAS or sector trip. This
correction is made at the request of the
Council, in response to a letter sent
April 30, 2012.
In § 648.82(k)(2), language prohibiting
sector vessels from leasing DAS is
removed. This language is left over from
Amendment 13 and should have been
removed in the final rule implementing
Amendment 16, which allowed sectors
vessels to lease DAS among themselves.
In § 648.82(n)(2)(i), this rule clarifies
that common pool trimester TAC area
closures are intended to apply to
common pool vessels using gear capable
of catching groundfish only when on a
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NE multispecies DAS, and not when
participating in exempted fisheries.
In § 648.82(n)(2)(ii)(A), this rule
corrects the coordinates for the GB Cod
Trimester TAC Area. Amendment 16
defined the area as being composed of
statistical areas 521, 522, 525, and 561.
However, the coordinates used to define
the GB Cod Trimester TAC Area were
incorrectly transposed in the
Amendment 16 final rule and included
statistical area 562; this is rectified by
this action.
In § 648.82(n)(2)(ii)(B), Points 4 and 5
incorrectly list the N. Lat. as 43°20′, and
this action corrects them to read 43°10′.
In § 648.82(n)(2)(ii)(H) and (I), the
original coordinate AP8 was
unnecessary and is removed by this
action.
In § 648.82(n)(2)(ii)(J), this rule
corrects the coordinates for the GB
Winter Flounder Trimester TAC Area.
Amendment 16 defined the area as
being composed of statistical areas 522,
525, 561, and 562. However, the
coordinates used to define the GB
Winter Flounder Trimester TAC Area
were incorrectly transposed in the
Amendment 16 final rule and did not
include statistical areas 525 and 561;
this is rectified by this action.
In § 648.84(e), this rule adds a
regulatory definition for the rope
separator trawl. The definition for the
rope separator was inadvertently
removed from the regulations by the
Framework 47 final rule. This rule adds
the regulatory definition back into the
regulations.
In § 648.85(a)(3)(iv)(E), the regulations
allow for the Regional Administrator to
close the Eastern U.S./Canada Area to
all vessels subject to a particular TAC
allocation if that particular TAC
allocation is projected to be caught. This
rule clarifies that this is only to apply
to allocations to sectors and common
pool vessels, and not the scallop fishery
or other ACL components. Amendment
16 and Framework 48 clarified that
inseason and reactive accountability
measures for sub-ACLs for nongroundfish components of ACLs are to
be developed and administered by those
respective FMPs.
In § 648.85(b)(7)(iv)(H), an explicit
reference to possession limits for other
groundfish stocks, including stocks
prohibited from being landed, in
§ 648.86 is added in the description of
landings limits for the Closed Area I
Hook Gear Haddock Special Access
Program (SAP).
In § 648.85(b)(8)(v)(C), the timing of
the pre-trip notification to the observer
program for a US/CA trip is revised
from 72 hr to 48 hr. Prior to Amendment
16, vessels taking trips into the U.S./
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Canada were required to notify the
observer program of their intent to take
a trip 72 hr prior to departure. With the
implementation of Amendment 16,
NMFS established a standardized call-in
requirement to the observer program
that reduced this lead time to 48 hr.
In § 648.85(d), a period that was
incorrectly inserted after ‘‘NE’’ is
removed.
In § 648.86(a)(3)(ii), periods that were
incorrectly inserted after ‘‘NE’’ is
removed.
In § 648.86(a)(3)(ii)(A)(3), the table
title for the GB Herring Haddock AM
Area was incorrectly published as the
GOM area. This rule corrects the table
title.
In § 648.87(b)(1)(ii), sector stock area
coordinates that were to be
implemented by Framework 44 but were
inadvertently left out of the regulations
are added through this rule as
paragraphs (A) through (F).
In § 648.90(a)(5)(iii), a period that was
incorrectly inserted after ‘‘NE’’ is
removed.
In § 648.201(a)(2), the prohibition on
landing of haddock is clarified to apply
only to the haddock stock area for
which the AM has been triggered. An
explicit reference is added to the
haddock possession restrictions in the
NE multispecies regulations at
§ 648.86(a)(3)(ii)(A).
Comments and Responses
NMFS received 75,393 comments
during the comment period on the
Framework 48 proposed rule, including
75,263 form letters opposing allowing
sectors access to groundfish closed
areas. Letters were also received from
the Council, the USCG, MADMF, the
Maine Department of Marine Resources
(MEDMR), 7 environmental
organizations, 3 research institutions,
numerous members of the academic
community, a whale watch company, 7
commercial fishing industry groups, 2
recreational fishing associations, a
commercial fish dealer, and 106
individuals. Some of the comments did
not address the proposed measures and
thus they are not included here. Where
possible, responses to similar comments
on the proposed measures have been
consolidated.
Comment 1: NMFS received one
comment on the economic analysis in
the draft Framework 48 EA and the
IRFA. MADMF commented that the
economic analysis of measures in
Framework 48 should have focused on
the individual level and that any other
level of analysis would not result in
accurate characterizations about the
impacts of Framework 48 measures on
individuals. MADMF also questioned
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the assumption that impacts to vessels
would also be applicable to ownership
entities and noted that the conclusion in
the IRFA that Framework 48 measures
would not have a disproportionate
impact on small entities seems to
contradict the conclusion elsewhere in
Framework 48 that small vessels would
suffer the highest percent reduction in
net revenues from sector monitoring
requirements.
Response: NMFS believes the
commenter may be misunderstanding
the economic analyses in Framework
48. It appears the commenter has
misinterpreted the conclusions in the
economic analysis for this action.
Individual measures are analyzed
independently relative to the no action
alternative for each particular measure,
because each measure must be approved
or disapproved based on its individual
merits. The cumulative impacts of an
action and all other foreseeable actions
are also analyzed in the cumulative
effects analysis of the EA. For example,
the analysis suggested that reducing the
commercial minimum fish sizes could
increase revenues and, thereby, serves
as a mitigation measure, when
compared to not reducing the minimum
sizes. Extrapolating the conclusion of
the economic impact of an individual
measure to impacts of the entire action
is not appropriate. It is not clear what
MADMF defines as an ‘‘individual’’
and, therefore, what analysis it believes
is missing. The term ‘‘ownership
entity,’’ as opposed to a vessel, has a
specific meaning in analyses under the
Regulatory Flexibility Act (RFA) for
Framework 48 and the proposed rule,
which is where these terms are used.
Similarly, small vessels are not the same
as small entities. A small vessel refers
to the relative size or length of the
vessel itself as some measure of capacity
to generate revenue. As described in the
IRFA, the Small Business
Administration (SBA) defines a small
business as one that is: independently
owned and operated; not dominant in
its field of operation; has annual
receipts not in excess of $4.0 million in
the case of commercial harvesting
entities, or $7.0 million in the case of
for-hire fishing entities; or if it has fewer
than 500 employees in the case of fish
processors, or 100 employees in the case
of fish dealers. This is the definition of
a small entity used for the purposes of
an RFA analysis. Thus, a small or large
entity could own or control a number of
small vessels. The assumptions used to
aggregate vessels or permits to the
ownership entity level was explained in
the RFA section of Framework 48
(section 8.11.2), and conforms to NMFS
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internal guidelines and the SBA’s
guidelines for economic analyses to
comply with the RFA. The RFA does
not require an analysis of comparative
impacts between small entities,
although this has been done to a degree
for this action, but rather the
comparative impact between large and
small entities and alternatives that may
reduce those comparative impacts, if
they disproportionately affect small
entities. NMFS’s methods for predicting
outcomes do not yet include agentbased models capable of predicting
individual vessel-level outcomes,
though NMFS is continually improving
its data sources and analytical methods.
In addition, the ability to report on
distributional impacts at the individual
vessel level is hindered by the need to
protect the confidentiality of
individually-reported data at this level.
Thus, for some measures, such the
reduced commercial minimum fish
sizes, the economic impacts were
addressed qualitatively.
Status Determination Criteria
Comment 2: The Island Institute
commented in support of the revised
status determination criteria and how
these measures will make way for
setting appropriate ABCs and ACLs in
Framework 50.
Response: NMFS agrees that the
revised status determination criteria
represent the best available science and
would allow the appropriate ABCs and
ACLs to be set beginning in FY 2013 to
end overfishing and continue the
rebuilding of groundfish stocks. NMFS
has approved the revised status
determination criteria in this final rule.
Comment 3: The Conservation Law
Foundation (CLF), MADMF, and the
Northeast Seafood Coalition (NSC)
raised questions related to the methods
and results of the assessments for SNE/
MA yellowtail flounder, and GOM and
GB cod. CLF questioned NMFS and the
Council’s determination that the revised
SNE/MA yellowtail flounder status
determination criteria represent the best
available science when the recruitment
scenarios that were considered by the
SARC were almost equally likely, but
resulted in such different stock status.
MADMF pointed out that NMFS
proposed two numerical values for
status determination criteria for GOM
cod, but did not specify which it
preferred and proposed to approve.
MADMF questioned why the SARC did
not conclude that natural mortality for
GOM cod would be sustained at 0.4 or
higher. MADMF also asked NMFS to
clarify why the GOM and GB cod
assessments did not conclude there has
been a change in productivity for these
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stocks as for SNE/MA yellowtail
flounder. NSC challenged that the
revised status determination criteria do
not represent the best available science
because the assessments did not
consider alternate methods for deriving
FMSY proxies. NSC asked NMFS to ask
the Council and SSC to consider
alternate methods for establishing FMSY
other than F40%MSP in stock
assessments. They challenged that this
is a policy decision with management
implications and therefore should be
made by the SSC and Council, rather
than the NEFSC.
Response: NMFS first notes that an
error was made in the Framework 48
proposed rule with respect to the
overfishing status of SNE/MA yellowtail
flounder under the two recruitment
scenarios. The Framework 48 proposed
rule erroneously stated that SNE/MA
yellowtail was experiencing overfishing
under the ‘‘two-stanza’’ recruitment
scenario, when both recruitment
scenarios actually led to the conclusion
that this stock was not experiencing
overfishing.
With respect to the reference points
for GOM cod, two sets of status
determination criteria were proposed
because the SARC accepted two models
at the assessment. These models
resulted in one maximum fish mortality
threshold, but two sets of biomass
reference points. Although this
approach for determining numerical
values for stock status is less
straightforward, both models concluded
that GOM cod is overfished and
undergoing overfishing. NMFS has
approved both sets of revised reference
points for GOM cod in this final rule.
NMFS understands CLF and
MADMF’s concerns about the amount of
uncertainty in the biomass reference
points for SNE/MA yellowtail flounder
and GOM cod. SARC 54 modeled
possible reasons for reduced recent
recruitment of SNE/MA yellowtail
flounder, but could not fully explain the
low productivity of this stock. SARC 55
reviewed information on natural
mortality of GOM cod, but was unable
to reach a decision on which natural
mortality values best characterized the
system. Investigating possible sources of
changes in productivity was not a
specific TOR in the cod assessments, as
it was in the SNE/MA yellowtail
flounder assessment. However, the
TORs for these assessments were vetted
by the Northeast Regional Coordinating
Committee (NRCC), which includes
representatives of the New England and
Mid-Atlantic Councils and their SSCs.
There are basic TORs that are the
foundation for the TORs of all
assessments, but stock-specific TORs
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may be added based on research
recommendations, generated by
developments in the science or politics
of a particular stock, and vetted by the
NRCC. Even without a specific TOR, the
SAW working group reviews all
available information and the public
may submit papers to the working group
to consider in their analyses and
deliberations. A detailed discussion of
the review panels’ deliberations are
available in the assessment reports and
review panel summaries on the NEFSC
Web site: http://www.nefsc.noaa.gov/
saw/reports.html. More exploration is
needed, yet the results of the SARC 54
and 55 assessments, even with the
acknowledged uncertainty, represent
the best scientific information available
about the state of SNE/MA yellowtail
flounder and GOM cod at this time.
These reference points were endorsed
by both the SSC and NEFSC for use in
managing these stocks. NMFS has
approved the revised status
determination criteria in this final rule.
Regarding NSC’s assertion that the
proposed status determination criteria
do not represent the best available
science because the assessments did not
consider alternate methods for deriving
FMSY, the Framework 48 proposed rule
did not propose or solicit public
comment on assessment methods.
NMFS can only approve, partially
approve, or disapprove the status
determination criteria proposed in
Framework 48 based upon an evaluation
of its compliance with the MagnusonStevens Act, the National Standards
Guidelines, the FMP, and other
applicable law. It would not be
appropriate or permissible for NMFS to
choose an alternate FMSY reference point
through this final rule that was not
considered by the SSC or Council. That
being said, the TORs generated for each
assessment, and vetted by the NRCC
with representations by both Councils
and their SSCs, specifically direct the
SAW/SARC to determine FMSY or, if a
direct estimate of FMSY cannot be
determined, to select an appropriate
proxy. Thus, FMSY or methods for
determining its proxy are evaluated and
recommended by each SAW and
approved by each SARC, and are not
pre-determined as NSC seems to
suggest, although an FMSY proxy of
40%MSP may be the result in many
assessments. The NSC has already
forwarded its concerns about the
determination of FMSY proxies to the
Council for consideration and the
Council may choose to pursue this issue
for future assessments. However, the
numerical estimates of FMSY proposed
in Framework 48 for SNE/MA yellowtail
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flounder, GOM and GB cod, were
reviewed and accepted by the review
panels at SARC 54 and 55, the SSC, and
the Council, as the best science
available for management of these
stocks. Subsequently, NMFS has
approved these status determination
criteria as consistent with the
requirements of the Magnuson-Stevens
Act and the FMP.
Comment 4: The NEFMC, MEDMR,
and Maine Coast Fishermen’s
Association (MCFA) urged NMFS to
implement updated status
determination criteria for white hake as
soon as possible based upon the results
of SARC 56 that recently became
available. The results of this latest
benchmark assessment suggest an
increase in the FY 2013 ACL for white
hake would be warranted, which would
provide additional economic
opportunity to groundfish vessels in FY
2013.
Response: NMFS agrees that the
results of the SARC 56 benchmark
assessment for white hake represent the
best scientific information available for
this stock and implements updated
status determination criteria for white
hake through this final rule (Item 7).
The revised status determination criteria
were not proposed for public comment
in the Framework 48 proposed rule
because the assessment results were not
yet available (see Item 1 of the proposed
rule). However, NMFS believes it is
appropriate to implement the updated
status determination criteria through
this final rule because the Council
recommended and analyzed updated
status determination in Framework 48
in case the assessment results became
available in time for rulemaking. In
addition, the SARC 56 assessment
shows a change in the stock’s status,
from overfished and subject to
overfishing to neither overfished nor
undergoing overfishing, and that is
expected to meet its rebuilding end date
of 2014. NMFS is implementing the
revised white hake status determination
criteria with a post promulgation
comment period to allow for additional
public comment on this measure.
GB Yellowtail Flounder and SNE/MA
Windowpane Flounder Sub-ACLs
Comment 5: Four commenters
supported establishing sub-ACLs of
SNE/MA windowpane flounder for the
scallop fishery and other subcomponent fisheries, including revising
the SNE/MA windowpane flounder
commercial groundfish fishery AM to
apply to other sub-component fisheries
with catch of this stock. AFM generally
supported the allocation of this stock to
the scallop fishery. NSC, CLF, and
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Oceana commented in support of both
proposed sub-ACLs and the revised AM.
CLF commented that these measures are
justified given the significant overages
of the SNE/MA windowpane flounder
ACL in recent years. Oceana also
commented that the proposed sub-ACLs
increases accountability for fisheries
with more than a de minimis catch of
groundfish.
Response: NMFS agrees that the
proposed measures increase
accountability among fisheries with a
measurable catch of groundfish. SubACLs and AMs encourage these
fisheries to minimize catches of SNE/
MA windowpane flounder, consistent
with the objectives of the FMP and
National Standard 9 of the MagnusonStevens Act. NMFS has approved these
measures through this final rule.
Comment 6: NMFS received seven
comments in support of the revised GB
yellowtail flounder sub-ACL for the
scallop fishery. One individual simply
expressed support for the revised subACL as proposed. MEDMR, Associated
Fisheries of Maine (AFM), NSC, and one
individual supported the revised subACL, because it improves accountability
for the scallop fishery and holds each
component of the fishery responsible for
its own catches. NSC and MEDMR
commented that the fixed percentage
reflects historical catch. CLF and
MEDMR believe the revised allocation
creates an incentive for the scallop
fishery to reduce bycatch of GB
yellowtail flounder. AFM and the
Portland Fish Exchange also commented
that the fixed percentage provides more
stability for groundfish fishermen
because it is a more predictable
allocation.
Response: NMFS agrees that the fixed
percentage provides stability to the
scallop and groundfish fisheries by
simplifying the allocation scheme.
NMFS also agrees that the revised subACL provides an incentive for the
scallop fishery to reduce its catch of GB
yellowtail flounder and has approved
this measure in this final rule.
Comment 7: Fisheries Survival Fund
(FSF) supported the allocation of 40
percent of the GB yellowtail flounder
U.S. ABC in FY 2013, because it
provides for most of the scallop fishery’s
projected need, while providing an
allocation for the groundfish fishery and
maintaining an incentive for the scallop
fishery to avoid yellowtail flounder.
However, FSF opposed the allocation of
16 percent of the GB yellowtail flounder
U.S. ABC in FY 2014 and each year
after, and 36 percent of the SNE/MA
windowpane flounder ACL, because
they will result in lost scallop revenues
over the long term. FSF also opposed
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the proposed sub-ACL of SNE/MA
windowpane flounder for the other subcomponent fisheries, because it will
reduce revenues from the fluke fishery.
FSF argues that the Council made these
allocations in order to maintain a
directed groundfish fishery for GB
yellowtail flounder. As an alternative,
FSF argues, the Council could have
closed the directed fishery for GB
yellowtail flounder and implemented a
zero possession limit for GB yellowtail
flounder as it has done for SNE/MA
windowpane flounder to promote the
greater good, the prosecution of the
more valuable scallop and fluke
fisheries. FSF argues that by
constraining the scallop and fluke
fisheries with these sub-ACLs, the
Council has not maximized the overall
benefit to the nation and reduced the
ability of the scallop fishery to achieve
optimum yield on a continuing basis,
violating National Standard 1.
FSF further contends that these
measures do not minimize adverse
economic impacts on fishing
communities as required by National
Standard 8, because they sacrifice
valuable scallop and fluke fishery
landings for the communities that
depend on these revenues, in favor of
the less valuable GB yellowtail flounder
landings. FSF also urged NMFS to
accelerate access for the scallop fishery
to the northern edge of GB if it approves
these measures to mitigate the economic
impacts of the proposed measures.
Response: NMFS disagrees with FSF
that the proposed sub-ACLs for SNE/
MA windowpane flounder and GB
yellowtail flounder are not consistent
with the Magnuson-Stevens Act. FSF
suggests that the overall benefit to the
nation would be to allow the
unrestrained prosecution of the scallop
and fluke fisheries, based solely on their
higher economic value when compared
to the groundfish fishery. However, the
concept of overall benefit to the nation
must be evaluated in the context of
optimum yield, which requires
consideration and balancing of other
factors in addition to economic values,
including food production, recreational
opportunities, the protection of marine
ecosystems, and which can only be
reduced based on economic, social or
ecological factors. And even at OY,
management measures must still
prevent overfishing. Economic, social
and ecological factors concerning the
FMPs goals of preserving fishing
opportunities for groundfish vessels and
minimizing negative impacts on fishing
communities, and reducing bycatch of
groundfish stocks, contributed to the
Council’s allocation decisions for these
sub-ACLs. OY must also be consistent
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with other National Standards of the
Magnuson-Stevens Act, particularly in
this instance, National Standards 4 and
8. To focus only on OY, would
potentially run afoul of National
Standard 4 which requires that
management measures should be fair
and equitable to all fishermen and that
no particular entity acquires excessive
shares of fishing privileges. Also, to
favor the scallop industry by
maximizing overall benefits to the
nation would be inconsistent with
National Standard 8 which requires that
management measures must take into
account importance of fishery resources
to fishing communities in order to
provide sustained participation of such
communities in fishing and, to the
extent practicable, minimize adverse
impacts on such communities. The new
sub-ACLs are consistent with these
principles.
Allocating SNE/MA windowpane
flounder sub-ACLs to the scallop and
fluke fisheries was necessary to prevent
overfishing and ensure accountability
for catches of this stock, consistent with
the requirements of the National
Standard 1. This is a non-allocated
stock, for which possession is
prohibited and all catch is discarded. As
discussed in Item 8 of the preamble,
until Framework 47, only the
commercial groundfish common pool
fishery had an AM for this stock.
However, the lack of accountability for
catches in the ‘‘other sub-component’’
fisheries, including the scallop and
fluke fisheries, resulted in total catches
that exceeded the ABC and OFL for this
stock in FY 2010 and again in FY 2011,
despite the implementation of an AM
for the common pool fishery in FY 2011
to account for the overage in FY 2010.
Catch by non-groundfish fisheries alone
exceeded the ABC in FY 2010 and the
OFL in FY 2011. Framework 47, and
now Framework 48, modified the
commercial groundfish fishery AMs to
make them more effective. However, as
these AMs do nothing to constrain total
catches of SNE/MA windowpane
flounder in the scallop and other subcomponent fisheries where the majority
of catch is taken, maintaining a sub-ACL
and AMs only for the groundfish fishery
does not sufficiently reduce the risk of
overfishing and would not be consistent
with National Standard 1 or the goals of
the FMP. Additional sub-ACLs and
corresponding AMs for these fisheries
are necessary to constrain catches of this
stock by the scallop and other subcomponent fisheries and correct any
overages, and to prevent overfishing, as
is required by the Magnuson-Stevens
Act. This measure also ensures equity
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by holding the component of the fishery
responsible for an overage accountable
for its catch.
The Council considered not allowing
landings of GB yellowtail flounder,
meaning it would be considered a nonallocated stock, in this action, but
rejected this alternative out of concern
that there would be no incentive to
minimize discards of this stock, and
unrestrained catches would quickly
exceed the ABC and ACL being
considered for FY 2013. Taking a stock
from allocated to non-allocated and
prohibiting its possession does not
absolve the Council of having to prevent
overfishing and ensure accountability
for catches of this stock. As
demonstrated by the Court’s decision on
Amendment 16 in Oceana v. Locke et
al., prohibited possession may not be a
sufficient AM, by itself, and if the
Council had decided not to allocate this
stock in FY 2013, it would still have had
to ensure accountability of any overages
of the total ACL, including catches by
the scallop fishery. Reducing
accountability would also be
inconsistent with the Council and
NMFS’ obligations under the joint
management agreement with Canada for
this stock, and the goals of the FMP, by
undermining the integrity of the TACs
set under that agreement. The
importance of some landings of GB
yellowtail flounder to some vessels in
the groundfish fishery also weighed on
the Council’s decision not to make this
stock prohibited. Regardless,
Framework 48 does not recommend
making GB yellowtail flounder a nonallocated stock and NMFS cannot
unilaterally do so because it may only
approve or disapprove the measures
included in the framework.
This action proposed alternative
methods for calculating the scallop
fishery’s sub-ACL, including a method
based on an estimate of projected catch
and a fixed percentage. The Council
selected the fixed percentage method as
its preferred alternative out of concern
that, with a declining ABC, scallop
catches would become a larger part of
the total catch if the allocation was
calculated based on projected catch of
yellowtail flounder. An allocation based
on projected catch does not take into
account changes in the ABC or the
relative health of the stock. A fixed
percentage also provides a greater
incentive for the scallop fishery to
reduce bycatch of these stocks, than an
allocation based on projected bycatch,
consistent with the goals of the FMP
and National Standard 9, to reduce
bycatch at the extent practicable. In
addition, the Council believed it would
be inequitable to allow scallop catches
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to become a larger portion of the U.S.
ABC and thereby reduce the groundfish
fishery’s historic level of participation
in this fishery. This would not be
consistent with the goals and objectives
of the FMP as described in Amendment
16 to maintain a directed commercial
groundfish fishery and the shoreside
infrastructure and communities that rely
on it, and the requirements of National
Standard 4, which requires that
allocations be fair and equitable among
fishermen. The Council took a similar
approach with the SNE/MA
windowpane flounder sub-ACL for the
scallop fishery.
These factors also influenced the
Council’s decision to select the fixed
percentages of 16 and 36 percent of the
ABCs for GB yellowtail flounder and
SNE/MA windowpane flounder,
respectively. For both stocks, the
Council based these percentages on
recent catch history. For SNE/MA
windowpane flounder, the Council
selected the 90th percentile of the
highest scallop catches as a proportion
of total catches in recent years (2010).
This was also the year with the highest
scallop fishery discards by weight in the
time series. This resulted in an
allocation of 36 percent of the ABC.
Whether this will be constraining in a
particular fishing year depends upon
the ABC and resultant sub-ACL
allocation, which was analyzed for FY
2013–2015 in Framework 50, and the
AM to be developed in a future scallop
action. Similarly, the fixed percentage
allocation for yellowtail flounder was
based on the highest amount of scallop
discards as a proportion of total catches
of GB yellowtail flounder from 2001–
2011. The Council considered a range of
8–16 percent for this stock, with 8
percent being the average percent of
total catch in the time series and 16
percent being the highest total catch
(2006). For both stocks, the Council
selected the percentages that would
provide the greatest allocation for the
scallop fishery, while still meeting the
needs to minimize bycatch to the extent
practicable, maintain a fair and
equitable allocation for the groundfish
fishery, consistent with the FMP and the
Magnuson-Stevens Act. In addition, the
scallop fishery’s AMs for both stocks are
only triggered if it exceeds its sub-ACL
by more than 50 percent, or causes an
overage of the overall ACL. This
effectively provides an additional 50
percent of the scallop fishery sub-ACL
in any given year, if left uncaught by
other components of the ACL. Although
an even larger allocation for the scallop
and other non-groundfish fisheries
would seemingly be justified based on
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a strict comparison of the economic
values of these fisheries versus the
groundfish fishery, the Council is
expressly prohibited from making an
allocation decision based solely on
economic efficiency by National
Standard 5 and must take into account
other provisions such as fairness and
equity and impacts on fishing
communities. For these reasons, NMFS
approves the proposed sub-ACLs for
SNE/MA windowpane flounder and GB
yellowtail flounder as consistent with
the goals and objectives of the FMP and
the requirements of the MagnusonStevens Act.
FSF requested that, if NMFS approved
these measures in Framework 48, it
should accelerate access for scallop
vessels to the northern edge of Georges
Bank. This area is currently a habitat
closed area for the purpose of
minimizing the adverse effects of fishing
on habitat. As FSF is already aware,
there is not a mechanism in the scallop
FMP that allows NMFS to grant scallop
vessels access to fish in this area
without explicit Council action. The
Council is already reviewing this area
and allowing access to this area as part
of the comprehensive review of habitat
and other closed areas in the Omnibus
EFH Amendment, and is targeting
implementation of any measures in
2014.
Comment 8: NMFS received five
comments supporting the proposed GB
yellowtail flounder sub-ACL for small
mesh fisheries. NSC and AFM
commented generally in support of the
proposed measure. Oceana and one
individual supported the allocation
because it holds each fishery component
accountable for its own catch. Oceana
also urged NMFS and the Council to
continue evaluating groundfish catch by
other fisheries and to establish subACLs whenever catches are above de
minimis levels. CLF noted that the
establishment of a sub-ACL means little
without an effective AM, and argued
that the public should be able to know
when AMs are to be developed.
Response: NMFS agrees that the
proposed measure increases
accountability for fisheries responsible
for catches of groundfish. By providing
an incentive for small mesh fisheries to
reduce catches of GB yellowtail
flounder, this measure is consistent
with National Standard 9 and the
objectives of the FMP to minimize
bycatch of groundfish stocks to the
extent practicable. NMFS has approved
the GB yellowtail flounder sub-ACL for
small mesh fisheries. NMFS will
continue to encourage the Council to
evaluate groundfish catch in nongroundfish fisheries in the biennial
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review process, as well as on an ad-hoc
basis if any of these fisheries appear to
have caused an overage. NMFS agrees
with CLF’s point that AMs for small
mesh fisheries must be developed as
soon as possible to provide an incentive
for small mesh fisheries to comply with
the new sub-ACL. The Council has
begun planning the development of the
next framework action and AM for this
sub-ACL is slated to be included for FY
2014 to cover any overage in FY 2013,
if necessary. NMFS believes this
provides a sufficient incentive to
constrain catches within this sub-ACL
in FY 2013, while providing
opportunity for thorough development
and evaluations of AMs with
participation by small mesh fishery
participants.
Recreational Fishery AM
Comment 9: CLF commented in
support of revising the recreational
fishery AM to allow the Regional
Administrator to proactively adjust
measures to ensure that the recreational
fishery sub-ACLs are not exceeded.
MADMF urged that NMFS should also
consult directly with state agencies
about proactive changes to recreational
fishery measures, not just as Council
members through the Council process.
Response: NMFS agrees that the
proposed revision to the recreational
fishery AM would improve
accountability in the recreational
fishery. Currently, the recreational
fishery AM only allows the Regional
Administrator to change recreational
measures if an ACL is exceeded. In
addition, due to the delay in availability
of recreational catch data at this time,
AMs can only be implemented in the
third year following an overage. The
Council may initiate a management
action to revise recreational measures
for any given fishing year commensurate
with the recreational sub-ACLs being
proposed or implemented for that year.
However, this process offers little
flexibility for the Council or NMFS to
revise measures if those in place are
expected to result in catches higher than
the recreational allocations specified for
the coming year and there is no time to
complete a framework adjustment.
Allowing NMFS to adjust recreational
fishery measures proactively before the
start of a fishing year reduces the
likelihood that a recreational sub-ACL
will be exceeded in that fishing year.
This allows NMFS and the Council to
adapt to changing fishery conditions, by
evaluating recreational measures before
the start of the fishing year to ensure
those measures facilitate a target catch
consistent with the sub-ACLs specified
for the recreational fishery. NMFS has
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approved the revised recreational
fishery AM in this final rule. The
Regional Administrator may only
implement proactive measures to ensure
that the recreational fishery sub-ACLs
are not exceeded after consultation with
the Council, which includes
representatives from all the New
England states. This consultation
process built into this measure affords
the state directors, or their
representatives, to voice any concerns
that they may have during this process.
Comment 10: NSC opposed revising
the recreational fishery AM to allow the
Regional Administrator to liberalize
recreational measures inseason to
facilitate the recreational fishery
catching its sub-ACLs. NSC argued that
this reflects an inconsistent application
of the National Standard 1 requirements
for AMs between the recreational and
commercial fisheries. NSC also
questioned the data NMFS would use to
project recreational fishery effort
inseason to make such a determination,
given the limitation on recreational data
timeliness.
Response: NMFS believes that NSC
has misunderstood the proposed
revision to the recreational fishery AM.
The intent of the proactive AM was not
to allow NMFS to project recreational
fishery catch and revise recreational
measures inseason. The intent of the
Council in Framework 48 was for NMFS
to follow a procedure similar to the
Council’s to revise recreational
measures, using the Bioeconomic
Length-structured Angler Simulation
Tool (BLAST) model to identify suites
of measures that would achieve but not
exceed the recreational sub-ACLs in the
coming fishing year, to gather input on
these measures from the RAP and
Council, and implement them before the
start of the fishing year. The text of this
measure in Framework 48 and the
regulations implementing this measure
state that the revised measures would be
implemented prior to the start of the
fishing year ‘‘to the extent possible,’’
because the Council acknowledged the
possibility that even this abbreviated,
adaptable process may not be completed
before the start of the fishing year in
some cases. The measures for FY 2013
are a perfect example, where the
Council did not take final action on FY
2013 ACLs until January 2013 and
NMFS and the Council could not
develop recreational measure
alternatives for FY 2013 until February
2013.
NMFS contends that this change to
the recreational AM is consistent with
the implementation of AMs for the
commercial fishery. Sector allocations,
as hard TACs, are inseason AMs that are
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specified as a proportion of the each
groundfish fishery sub-ACL for each
allocated groundfish stock. This means
that, unlike recreational fishery
measures, they automatically adjust to
increases or decreases in ACLs from one
fishing year to the next. Sectors also
receive several regulatory exemptions
every year to increase operational
flexibility and facilitate achieving their
ACEs. The common pool sub-ACLs also
automatically adjust from one year to
the next, and NMFS has the authority to
project and revise common pool trip
limits before the start of each fishing
year and inseason to ensure common
pool sub-ACLs are achieved but not
exceeded. Contrary to NSC’s opinion,
the addition of a proactive AM for the
recreational fishery would actually
result in more consistent application of
AMs across fishery components.
Commercial Groundfish Fishery AMs
Comment 11: The Council and a few
other commenters pointed out an error
in the coordinates for the proposed
Atlantic halibut AM areas, and
requested NMFS correct this error in the
final rule.
Response: The coordinates for the
Atlantic Halibut Fixed Gear AM Area 1
on page 67 of the draft Framework 48
EA and, subsequently, in the proposed
regulations, located this area
overlapping the Atlantic Wolffish Fixed
Gear AM Area 1 to the northwest of
Closed Area 1. However, Atlantic
Halibut Fixed Gear AM Area 1 actually
overlaps Atlantic Wolffish Fixed Gear
AM Area 2 along the western edge of the
Western GOM Closed Area. The figure
on page 68 of the draft Framework 48
EA showed the correct halibut AM
areas. NMFS has corrected the
coordinates in the regulations
implementing this final rule.
Comment 12: CLF and Oceana
generally supported the proposed
changes to AMs for non-allocated stocks
in Framework 48. CLF and Oceana
supported the revised timing for these
AMs, and the creation of area-based
AMs for Atlantic halibut, Atlantic
wolffish, and SNE/MA winter flounder,
because they increase accountability for
and constrain catches of these stocks.
However, Oceana opposed the fact that
these AMs would be effectively
triggered by an overage of the ABC
rather than the ACL, arguing that this
approach is illegal and not consistent
with National Standard 1 guidelines.
Oceana also took issue with the fact that
these AMs only account for an overage
of up to 20 percent of the ACL and that
any overage larger than that would
require future action by the Council.
Oceana contended that AMs are
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required to be automatic adjustments to
fishery measures and that referring the
matter to the Council for further action
does not satisfy these criteria, especially
in light of recent overages of the SNE/
MA windowpane flounder ACL by more
than 100 percent. Oceana urged NMFS
to partially disapprove these portions of
the reactive AMs and to refer them back
to the Council for further modification.
Response: NMFS agrees with the
commenters that the revisions to nonallocated stock AMs proposed by
Framework 48 would increase
accountability for catches of these
stocks and reduce the likelihood of an
ACL being exceeded. NMFS
understands Oceana’s concerns
regarding the trigger point for these AMs
being the ABC, rather than the ACL. As
discussed in Item 6 of the proposed rule
preamble, using the ABC as the trigger
point for these AMs was not out of any
intention to provide an additional buffer
for catches above the ACL. Rather, this
was more an artifact of the design of the
area-based AMs. The Groundfish PDT
was not able to design effective areabased AMs that would account for an
overage of only a few percent, while still
being effective. Gear restricted areas or
closures that small can be easily
undermined by a shift of effort to other
areas. NMFS does not consider the
concept of this trigger for AMs to be
illegal or inconsistent with National
Standard 1 guidelines. Defining the
trigger as an overage greater than the
management uncertainty is in concept
the same as establishing an annual catch
target (ACT) and a higher ACL (e.g., an
ACL set equal to the ABC) which serves
as the trigger for AMs, which is allowed
under National Standard 1 guidelines.
So, in approving these AMs, NMFS has
considered the ACL for these stocks, in
effect, to be ACTs and the trigger based
on exceeding the management
uncertainty to be, in effect, the ACL. In
this sense, these AMs are entirely
consistent with National Standard 1
guidelines. By considering these AMs in
this fashion, Oceana’s comments are
really about nomenclature, rather than
any fundamental inconsistency with the
concepts of Magnuson-Stevens Act or
National Standard 1 guidelines.
Furthermore, this is the same design as
the AMs for windowpane flounder and
ocean pout implemented through
Framework 47, which Oceana
supported.
These AMs are to account for possible
overages by non-groundfish fisheries
shown to have de minimis catches of
groundfish. It is not expected that these
components themselves are likely to
exceed the ACL by more than 20
percent. When catches by these fisheries
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have risen above de minimis levels,
such as in the case of overages of the
SNE/MA windowpane flounder in FY
2010 and FY 2011, the Council has
responded by recommending sub-ACLs
and fishery/gear-specific AMs for these
fisheries, as is currently proposed
through Framework 48. In addition
NMFS zero possession for SNE/MA
winter flounder and Atlantic wolffish
appear to have effectively kept catches
within allowable levels in recent years.
If zero possession continues to be an
effective proactive AM, the reactive AM
will likely not be triggered. Subtracting
catches by the scallop and fluke
fisheries, which will now be
constrained by ACLs, coupled with the
proactive AMs for these stocks, it is not
clear that such large overages by the
remainder of the other sub-component
fisheries is at all likely and, thus, that
these AMs would not be sufficient.
Oceana requested that NMFS partially
approve these AMs and refer the trigger
point and AM for large overages of more
than 20 percent back to the Council.
NMFS can only partially approve
measures when there are distinct,
severable components that would not
substantively affect the measure if one
component were approved and another
disapproved. The trigger point is an
integral part of the proposed AMs, thus
NMFS cannot simply disapprove it
without disapproving the whole
measure thereby leaving these stocks
with no reactive AM. And it’s not clear
how disapproving implementing the
area-based AMs for large overages and
referring this back to the Council would
be much different than what would be
required by the AM in the event of a
large overage. As Oceana points out,
these reactive AMs increase
accountability for catches of these
stocks by ensuring adjustments are
made to account for overages and by
providing an incentive to restrain
catches of these stocks. NMFS believes
it would be better to have some reactive
AMs in place than none, to constrain
catches of these stocks and to address
the court remand. For these reasons,
NMFS has approved these measures in
Framework 48. The Council may
continue to modify these measures to
make them even more effective through
a future action.
Comment 13: NSC, Portland Fish
Exchange, CCCHFA, and MCFA
opposed the proposed revisions to AMs
for non-allocated stocks. Specifically,
NSC did not support revising the AM
timing or reactive AMs for non-allocated
stocks, because they argue that the data
used for these determinations is not
reliable or available in a timely manner
to provide sufficient notification to the
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industry of the implementation of an
AM in the following fishing year. NSC
also questioned whether this
modification was necessary, as it was
not part of the court remand to address
non-allocated stock AMs. Portland Fish
Exchange questioned whether such
measures are necessary when SNE/MA
winter flounder may be allocated by
Framework 50, and halibut and wolffish
are rarely encountered and are returned
to the water when caught. CCCHFA did
not support the application of areabased closures in an output based
fishery. CCCHFA and the Maine Coast
Community Sector (MCCS) also stated
that Atlantic halibut is in better
condition than the most recent
assessment indicated and, as a result,
more frequent encounters of this stock
could trigger the AMs as soon as FY
2013 or 2014. CCCHFA called on NMFS
to conduct an assessment for this stock
and to reevaluate the proposed AM in
light of the results of that new
assessment. MCFA and MCCS expressed
concern that the Atlantic Halibut Fixed
Gear AM Areas would have significant
and disproportionate economic impacts
on fishing businesses from Maine that
fish this area, with no corresponding
benefits to the stock, because the real
issue of unrestrained state fishery
catches remain unaddressed. MCFA and
MCCS argued that vessels and sectors
that fish in these areas have not had
adequate time to prepare sector
exemptions or develop gear
modifications that would allow
continued access to this area with
reduced catches of halibut. MCCS
suggested that the fixed gear AMs are
too broad, and should instead target
sink gillnets using tie-downs to target
monkfish in this area, which they
believe are responsible for the most
bycatch. MCCS also requested
clarification as to how the AMs would
be in place if triggered.
Response: NMFS recommended that
the Council revise the timing of nonallocated stock AMs, not because it was
remanded by the Court, but because it
would improve the effectiveness of
these AMs. To be consistent with the
National Standard 1 Guidelines, AMs
should correct the problems that caused
an overage as soon as possible.
Currently, the AMs for non-allocated
stocks are implemented in the second
year following an overage of the total
ACL. This delay may not be needed in
all cases, but the current AMs do not
allow for the possibility that these AMs
could be implemented sooner if reliable
information is available. For example,
fishery dependent data is available in
almost real time in the commercial
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groundfish fishery. If information was
available during Year 1 that the
commercial groundfish fishery had
exceeded the overall ACL for ocean
pout, under the revised AM timing, the
respective AM for the stock would be
implemented at the start of the next
fishing year (Year 2). The revised timing
would also allow for improvements in
the timeliness of data streams from
other fisheries, which NMFS is
continually improving. That is why
NMFS has approved the revised AM
timing through this final rule. In
addition, NMFS and the Council
understand the need to provide stability
for groundfish vessels. Thus, any
applicable AMs for the non-allocated
stocks would only be implemented at
the start of a fishing year.
These reactive AMs for non-allocated
stocks are necessary in order to rectify
overages and reduce the likelihood of
overages in consecutive fishing years.
Although landings of these stocks are
currently prohibited and, therefore,
most catch is made up of discards, the
Magnuson-Stevens Act requires that all
mortality be accounted for. This means
that even if overages of the ACL are
caused by discards, an AM must be
applied to reduce the likelihood of such
an overage happening again and to
prevent overfishing. Furthermore, the
Council’s inability to directly control
state fishery catches, does not absolve
the Council of doing what it can to
prevent overages of the overall ACL.
The importance of reactive AMs was
further clarified by the Court decision in
Oceana v. Locke et al. The Council
designed these AMs around hotspots of
bycatch for these stocks, so that if the
overall ACL is exceeded, total catch of
that stock might be reduced and,
therefore, the likelihood that an overage
would be repeated would be reduced.
Locating the AMs in areas with little
impact on fishing effort and bycatch,
although that might reduce the impact
on vessels trying to target other stocks,
would not be effective. During the
development of Framework 47, the
Groundfish Committee briefly
considered allocating these stocks to
sectors, which would provide outputbased AMs like stocks currently
allocated to sectors. However, the
Groundfish Committee remained
concern that allocations of these stocks
would be too restrictive.
The Council may consider further
modifications to these AMs if changes
in stock size shift hotspot areas of high
bycatch. Currently, a benchmark
assessment for Atlantic halibut is not
scheduled. Revised reference points and
ABCs for this stock would not negate
the need for a reactive AM for the
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commercial groundfish fishery, but may
increase the ACL and thereby reduce the
likelihood that it would be exceeded.
Assessments are scheduled through the
NRCC, which prioritizes them based on
many factors, including how old the
most recent assessment is, whether an
management action is imminent,
whether there is any new information or
progress in research that would revise
the assumptions or inputs of the
assessment, and other priorities. If the
commenters are interested in a new
assessment for this stock, they may
propose it to the Council to bring to the
NRCC.
The Council could also refine these
AMs to target more specific gears, if a
specific gear configuration is identified
to be responsible for most bycatch. The
AMs approved in Framework 48 apply
to those gears identified as having the
highest bycatch of these stocks by SBRM
observer coverage. Trawl gear was found
to be responsible for the majority of
discards of halibut, followed by a much
smaller amount discarded by gillnet
gear. It may be possible that tie-down
nets targeting monkfish in these areas
are responsible for the majority of
bycatch of Atlantic halibut, as suggested
by MCCS, but the SBRM gear modes are
not defined to this fine a scale.
However, these AMs were designed
based on the best available information
about areas and gears with the highest
bycatch of these stocks. Delaying the
implementation of these AMs to further
refine them would mean that possible
overages of the overall ACLs for these
stocks would not be accounted for in the
interim, which would not be consistent
with National Standard 1. Although
these AMs may be further refined and
improved through future Council
actions, they would increase
accountability for and constrain catches
of these stocks at this time. For these
reasons, NMFS has approved these AMs
in this final rule.
The Council expressly prohibited
sectors from requesting exemptions
from the AMs for non-allocated stocks
through Framework 47. However, it did
provide for the possibility that selective
gears could be approved for use in these
areas. If MCCS is successful at
identifying gear types that could be used
in the Atlantic halibut AM areas with
little bycatch of this stock, it could
submit those gears for review through
the same process used to authorize
selective trawl gear at
§ 648.85(b)(6)(iv)(J)(2).
Note that Framework 50 allocates
SNE/MA winter flounder to the
groundfish fishery and allows landings.
This means that this stock is subject to
sector-specific inseason AMs, coupled
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with a pound-for-pound payback of any
overage from a sector’s allocation in the
next fishing year. In this case, the areabased AM would apply only to common
pool vessels if the common pool
exceeds its sub-ACL for the stock. If
triggered, these AMs would be in place
for only the fishing year in which they
are implemented.
Comment 14: NMFS received one
comment, from the Northeast Hook
Fishermen’s Association (NEHFA),
supporting the revised trimester TAC
AMs for handgear vessels. NEHFA
supported this measure because it
would help small handgear vessels,
which account for a small percentage of
catches of groundfish stocks, but for
which groundfish provides an important
revenue stream.
Response: NMFS agrees with NEHFA
that handgear vessels account for such
a small portion of the white hake catch
that exempting them from the trimester
TAC AMs is justified. This measure
would not increase the risk of the
common pool exceeding its sub-ACL for
this stock, but would relieve an inequity
currently present in the common pool
inseason AMs. Exempting handgear
vessels from these inseason AMs for
white hake would reduce the costs of
these AMs for handgear vessels by
allowing them to continue fishing for
other groundfish stocks when an AM for
white hake is triggered. That is why
NMFS has approved this measure in
Framework 48.
Commercial Fishery Minimum Fish
Sizes
Comment 15: MEDMR, Portland Fish
Exchange, AFM, NSC, and two
individuals supported the proposed
reductions in commercial minimum fish
sizes. Commenters generally supported
this measure because it would reduce
waste. One commenter supported this
measure because it would help would
allow the commercial industry to
compete with imports from foreign
countries, which have lower minimum
sizes. One commenter supported this
measure because it would generate
additional revenue for groundfish
vessels and act as a mitigation measure
for FY 2013 catch limit reductions.
Another commenter suggested the
proposed minimum sizes are more
consistent with the selectivity of
existing allowable mesh sizes. One
commenter noted that these sizes are
larger than those originally proposed by
the Groundfish PDT and take into
account the maturity and biology of
groundfish stocks.
Response: NMFS agrees with the
commenters that reducing the
commercial minimum fish sizes as
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proposed in Framework 48 would
reduce waste, provide more opportunity
to achieve OY and provide additional
revenue to groundfish vessels in FY
2013 that could help mitigate some of
the negative economic impacts expected
from reductions in catch limits. As
indicated by the analysis in Framework
48, this measure would be expected to
allow more fish caught and counted
against quotas to have economic value
rather than be wasted. Under a full
retention scenario, estimated additional
gross revenues in the short term could
be substantial. While reducing the
minimum sizes would not be expected
to generate quite as much additional
revenue, it would increase revenues
from quota used for groundfish vessels,
especially sector vessels. In addition,
these minimum sizes are generally
consistent with the length at which 50
percent of fish are expected be mature.
In this way, this measure attempts to
balances the benefits of reducing waste,
with the need to ensure many fish can
spawn before being caught. For these
reasons, NMFS approved this measure
in Framework 48.
Comment 16: CCCHFA, MADMF,
MCFA, and CLF opposed the proposed
reduction in commercial minimum fish
sizes. CCCHFA specifically expressed
concern about reducing the minimum
fish sizes for cod and haddock, when
both GOM and GB cod are overfished
and the incoming year class of GB
haddock may be what sustains the
fishery for the next few years. These
commenters generally opposed the
measure because it would increase effort
on smaller fish, undermine rebuilding
programs, and reduce long-term
productivity of these stocks. MCFA and
CLF expressed concern that reducing
the minimum sizes would reduce the
current disincentive to target small fish
created by counting all discards against
quotas, which was an objective of sector
management. CLF, MCFA, and MADMF
expressed concern that the reduced
minimum sizes would encourage
fishermen to target smaller fish and
potentially increase the use of net liners
in order to maximize the retention of
legal-sized fish, and could drive stocks
into further decline. Thus, they argue
that reducing the minimum sizes would
increase, rather than reduce, discards
overall. They believe that the risk of a
shift in selectivity and potential
consequences are too high. MADMF
argues that maintaining the minimum
size above the length at 50 percent
maturity is not sufficient or defensible,
because research has shown that repeat
spawners are important for spawning
success.
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Response: NMFS understands
commenters concerns that this measure
may change incentives in targeting fish
but it is not possible to accurately
predict whether and to the extent that
this may actually occur, and the
consequences on conservation
objectives, due in part to the context in
which these reductions in fish size will
apply. As NMFS discusses in Item 13 of
the preamble, there are two components
of uncertainty as to the potential
impacts from this measure. First, it is
unclear whether a shift in selectivity is
likely. According to analysis in
Framework 48, this is most likely for
yellowtail flounder, for which there is
little difference in price between size
classes and a simple change in the type
of codend used can modify the size of
fish caught. The second component to
the uncertainty is whether the shift in
selectivity could be detected and ABCs
could be adjusted to account for this
change. Although a shift in selectivity
could affect rebuilding time and the
probability of overfishing, if this shift is
detected and ABCs are adjusted, these
potential impacts may be mitigated.
That is why NMFS is exploring ways to
monitor the length frequency of catch in
the commercial groundfish fishery
beginning in FY 2013 to see if a change
in selectivity could be detected. If such
an analysis or data can be put together,
NMFS can advise the Council if
adjustments to measures may be
needed.
Traditional notions as to likelihood of
a shift of fishing behavior to target small
fish may not be as applicable in the
context of the sector program. All catch
is counted against sector ACE to create
an incentive to minimize discards in
order to maximize the value of a sector’s
quota. However, despite this incentive,
sector vessels are still experiencing
regulatory discards. Analysis by the
Groundfish PDT showed that the
majority of discards of groundfish stocks
for which size changes are proposed
occurred just below the minimum size.
The PDT concluded that a size
reduction of an inch would reduce
discards of cod, haddock, plaice, and
yellowtail flounder. The Council then
increased the sizes from those proposed
to reduce the majority of discards to
sizes that would be consistent with or
above the length at 50 percent maturity.
NMFS believes the proposed reductions
to minimum sizes represent a balance
between the need to reduce waste and
maximize the value of resources
expended, and to need to ensure the
continued rebuilding of groundfish
stocks. All catch would still be counted
against sector allocations, including
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discards, which should maintain an
incentive to reduce discards. It is
unclear, in light of such severe
reductions in catch limits, whether the
expected shifts in fishing behavior will
result, given the need to maximize the
profitability of every fish caught.
Moreover, in light of joint and several
liabilities of sector vessels, there is
increased incentive for sectors to selfenforce against any illegal activity, such
as use of liners or misporting, that
facilitate targeting of small fish. For
these reasons, NMFS has approved this
measure in Framework 48.
Comment 17: MADMF also stated that
if these measures are approved and state
agencies don’t follow suit, sector vessels
would be forced to discard fish that do
not meet the state minimum fish size in
violation of the federal requirement for
them to retain all fish of legal size.
MADMF also suggested that NMFS
should reduce sectors’ allocations to
account for the additional quota gained
from reducing the amount of discards
charged through discard rates.
Response: NMFS is also concerned
about discrepancies between state and
federal minimum fish sizes
complicating compliance and
enforcement of this measure. To address
this concern, NMFS is delaying the
effective date of these new minimum
sizes to July 1, 2013, to allow state
agencies additional time to consider and
make corresponding adjustments to
their minimum sizes. If a state does not
make corresponding adjustment to fish
sizes, vessels would not be forced to
illegally discard fish as they could land
in other states’ ports. NMFS, however,
would not favor this result and the
impacts it would have on the nonconforming state, and, for that reason
strongly urges all affected states to
match these size reductions.
With respect to MADMF’s concern
that reducing the minimum fish sizes
increases the amount of available quota
to sectors, NMFS believes this concern
arises from a misunderstanding about
how sector discard rates are applied.
Discard rates generated from observed
trips are intended to be representative of
the discard rates for each stock on
unobserved trips. So, for example, for a
single trip in FY 2012, the fish between
the current minimum size and new
minimum size would have been
discarded. If the trip was observed, the
sector would have been charged for
these discards based on observer data. If
the trip was unobserved, the sector
would have been charged for these
discards based on the discard rate
calculated from the observed trips. If
total catch remained the same on that
same trip in FY 2013, those fish
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between the current minimum size and
new minimum size would be landed
instead of discarded. Regardless of
whether the trip was observed, the
sector would be charged for those fish
based on dealer reports of those
landings. The sector would then also be
charged for the discards below the new
minimum size, from either observer data
or the new reduced discard rate. Thus,
in this example, total catch would
remain the same, but fish between the
current and new minimum sizes would
shift from discards to landings. So
sectors would not necessarily be able to
catch more fish overall compared to
their allocations. Even if an adjustment
were somehow appropriate, NMFS does
not have the authority to adjust sector
allocations without Council action.
Although initial rates at the beginning of
the year would be based on previous
fishing years, once these rates transition
to inseason discard rates in FY 2013,
they would be based on observed
discards on trips carrying an observer in
FY 2013. In addition, discards were not
used in the computation of vessel PSCs,
but are charged to sector allocations.
Comment 18: CCCHFA, MEDMR, and
one other individual stated a preference
for full catch retention to improve data
collection and minimize the cost of atsea monitoring to the industry.
Response: The Council considered a
full retention requirement for sector
vessels, but did not recommend it
because it was not sufficiently
developed for implementation in FY
2013. NMFS, therefore, does not have
the authority to replace minimum fish
sizes with such a measure as part of its
partial approval and implementation of
Framework 48 measures. However, the
Council passed a motion at their
December 20, 2012 meeting to pursue
full retention for further development in
a future action. NMFS encourages the
commenters to participate in the
Council process as it considers this
option for a future fishing year.
Sector Monitoring Programs
Comment 19: AFM, NSC, and the
MADMF supported delaying industry’s
responsibility to pay for at-sea
monitoring costs to FY 2013. However,
MADMF expressed concern that
approving this measure would lead to
continued delays of industry cost
responsibility in subsequent actions.
Response: NMFS understands
commenters concerns about industry
being able to bear the cost of
monitoring, especially in light of the
substantial reductions in catch limits
expected in FY 2013. That is why NMFS
intends to cover the full cost of
monitoring for sectors in FY 2013 to the
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extent that it can, by continuing its
NMFS At-sea Monitoring Program.
Although exact effort levels next year
are uncertain, NMFS believes that if
sector vessels take fewer trips overall as
expected, NMFS will be able to cover
100 percent of the costs of sector
monitoring. The availability of these
funds makes the Framework 48 measure
somewhat moot, but NMFS still cannot
approve this measure in Framework 48.
This measure is not consistent with the
goals of the FMP or the requirements of
the Magnuson-Stevens Act, because it
would not ensure monitoring levels
sufficient to monitor ACLs and sector
ACEs. Rather, coverage levels would be
determined by the amount of available
NMFS funding which, without specific
appropriations for this purpose, would
not guarantee even minimum coverage
levels to meet the performance standard
as required by Amendment 16 and
Framework 48. NMFS also shares
MADMF’s concerns that approving this
measure in Framework 48 would
establish an inappropriate precedent for
future fishing years.
Comment 20: CLF opposed the
proposed delay of industry
responsibility for the costs of at-sea
monitoring. CLF contended that the
fishing industry should be responsible
for the costs of monitoring the harvest
of a public trust resource and that it is
not clear that the industry could not
actually afford these costs. CLF points
out that this data is necessary for quality
assessments and argues that adequate
data for assessments and management
should not be sacrificed just because
quota levels are low.
Response: NMFS agrees with CLF that
delaying industry cost responsibility to
FY 2014 and specifying coverage levels
according the amount NMFS can fund is
not sufficient to ensure the adequate
monitoring of ACLs and sector ACEs. As
CLF notes, adequate at-sea monitoring is
necessary for quality data for
assessments and reliable estimates of
sector and groundfish fishery catches for
the purposes of determining if
allocations have been exceeded. Basing
coverage levels on NMFS funds alone
would not ensure that levels are
sufficient to at least meet the
performance standard and goals and
objectives for monitoring programs
defined by Amendment 16 and
Framework 48. For these reasons, NMFS
has disapproved this measure in
Framework 48.
Comment 21: MEDMR, AFM, NSC,
the Portland Fish Exchange, MCFA, and
one individual commented in support of
the proposed sharing of at-sea
monitoring costs between NMFS and
sectors. Commenters supported this
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measure because they believed that
industry could not support these costs
under reduced catch levels. NSC and
MEDMR supported continued efforts by
NMFS and the Council to develop a
workable for the NE Multispecies FMP,
including joining the Squid/Mackerel/
Butterfish and Herring FMAT/PDT.
Response: NMFS agrees with
commenters that this cost-sharing
concept has merit and is worth
exploring. However, as explained in
Item 2 of the preamble, this measure is
not consistent with the requirements of
the Anti-Deficiency Act and other
appropriations law and policy as
developed. As defined, this measure
would require NMFS to pay for portions
of at-sea monitoring costs that are
beyond its statutory obligations and,
thus, its appropriations. This measure
would also have required NMFS to
share payment of some obligations with
sectors, which is prohibited. For these
reasons, NMFS disapproved this
measure through this final rule.
However, NMFS believes that a similar
measure, if modified, could be workable
and is available to assist the Council in
further developing this concept for a
future action. In addition, as described
in the response to Comment 19, NMFS
intends to cover the full cost of at-sea
monitoring for sectors in FY 2013, to the
extent that it can, to address industry’s
concerns about their ability to bear this
burden in FY 2013 in light of the
substantial reductions in catch limits
that are expected.
Comment 22: One individual
commented against the proposed costsharing mechanism, out of a belief that
it was not sufficiently developed at this
time. This commenter stated that the
industry should work directly with
NMFS, and not involve other parties, in
the development of a workable measure
when appropriate.
Response: NMFS agrees with the
commenter that the proposed
monitoring cost-sharing mechanism was
not sufficiently developed in this action.
That is why NMFS has disapproved this
measure through this final rule. NMFS
is already assisting the mackerel and
herring FMPs to explore cost sharing
mechanisms for those fisheries for FY
2014 and can help the Council in
further developing this mechanism for
the NE Multispecies FMP for a future
action if interested.
Comment 23: CLF, NSC, and MCFA
supported eliminating dockside
monitoring requirements for sectors.
Commenters generally supported
eliminating this program because it did
not provide useful or timely data and,
therefore, was not worth its costs. CLF
supported eliminating this requirement
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provided that hails requirements are
maintained and that dockside intercepts
are effective and sufficient for
enforcement. MCFA thought that
dockside monitoring should be
reconsidered if full retention is adopted
in a future action. MADMF did not
support or oppose this measure, but
asked that NMFS clarify why it believes
that dockside intercepts by enforcement
personnel will be sufficient to monitor
sector landings. MADMF and NSC also
supported retaining hail requirements to
assist with the deployment of
enforcement personnel, but NSC
requested that NMFS improve the
timeliness of confirmation of receipts
for hails. NSC also supported NMFS’
intent to clarify the regulations to allow
for streamlining of these reporting
requirements in the future. MADMF
asked whether NMFS and the Office of
Law Enforcement have adequate
capability to compare hails to observed
landings to monitor sector and common
pool landings against allocations.
Response: NMFS agrees with
commenters that the dockside
monitoring program as currently
designed is not necessary or sufficiently
useful in monitoring sector landings.
Dealer reports are the principle data
source for commercial landings
information. In addition, eliminating the
program would reduce costs and
potentially increase the profitability of
the commercial industry in future years.
Eliminating this program would reduce
redundancy and reduce costs for the
commercial groundfish vessels, thereby
increasing net revenues in future fishing
years. That is why NMFS approved
eliminating the dockside monitoring
program, but maintained hail
requirements, through this final rule. To
the extent that dockside monitoring
creates a disincentive to misreport or
hide landings that may be used for
monitoring purposes, NMFS believes
dockside intercepts by enforcement
personnel, supported by hail
requirements, goes a long way to meet
this objective. Should the Council
consider full retention of fish in a future
action, dockside monitoring should be
reconsidered.
NMFS understands NSC’s concerns
regarding latency issues affecting the
timeliness of confirmations of receipts
and vessels’ ability to comply with this
measure. That is why NMFS is
continually making improvements to its
systems to address these types of issues.
NMFS agrees that redundancy should be
avoided and costs should be
streamlined where possible, thus NMFS
has also approved its clarification to the
regulations that would allow
streamlining of hails with other similar
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reporting requirements in the future
when appropriate.
Law enforcement personnel,
including OLE uniformed officers,
special agents, and state partners, have
access to the data reported in trip start
and trip end hails through a secure
database. Enforcement personnel do
have the capacity to use this
information to plan dockside intercepts,
and to compare it to other landings data
sources. However, NMFS would like to
caution commenters that hails were
instituted for the purposes of
coordinating deployment of dockside
monitors. Estimated weights of landings
were required to be reported in order to
allow the monitoring provide to plan for
the type catch that would be offloaded
and monitored and the length of the
offload. This information was not
intended or designed to be used for the
verification of dealer reports or VTRs.
The estimated weights reported are
expected to be the captain’s good faith
estimate of catch and would not be
expected to exactly match a dealer’s
recorded weights and so are not used for
this purpose.
Comment 24: NSC, AFM, and
CCCHFA commented in support of the
proposed revisions to the goals and
objectives and performance standard for
groundfish monitoring programs.
Response: NMFS agrees that the
measures proposed by Framework 48
clarify the goals and objectives and the
performance standard for groundfish
monitoring programs. This would help
the Council, NMFS, and sectors
implement and evaluate these programs
more effectively. NMFS has approved
these revisions in this final rule.
Comment 25: CLF and Oceana
opposed the proposed revisions to the
goals and objectives and performance
standard for groundfish monitoring
programs. They argue that these
measures are a fundamental component
of sector AMs and, therefore, cannot be
revised through a framework
adjustment. They argue that adjustments
to these requirements through the
framework process was not
contemplated or specified by
Amendment 16 and, thus, urge NMFS to
disapprove these proposed changes on
procedural grounds. The commenters
further contend that the effectiveness of
sector AMs depends on the ability of
individual sectors to know and manage
catch toward their ACEs and thus, for
sector AMs to ensure accountability as
required by the Magnuson-Stevens Act,
the appropriate level for monitoring
these catches is at the sector ACE level,
rather than the ACL. They urged NMFS
to disapprove the proposed action to
apply the CV standard at the overall
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stock level and instead select the
alternative that would apply it at the
sector-stock level. The commenters were
generally supportive of the proposed
goals and objectives for groundfish
monitoring programs as consistent with
the original purpose of these measures
in Amendment 16. However, they
expressed concern with the inclusion of
the terms ‘‘to the extent possible’’ with
respect to minimizing potential
monitoring bias, and ‘‘costeffectiveness’’ with respect to stratifying
discards. They argued that this provides
too much discretion for the
implementation of these programs as a
component of sector AMs. MADMF also
expressed concern that the inclusion of
a practicability standard would result in
coverage rates that are not sufficient for
accurate catch accounting.
Response: NMFS disagrees that sector
monitoring requirements cannot be
revised through a framework action.
Section 4.8.2 of Amendment 16
expressly states that frameworkable
measures are not limited to the items
listed in that section. In addition, sector
monitoring requirements, including
coverage levels and the performance
standard, are listed under sector
administration provisions in
Amendment 16, which is listed as a
frameworkable measure in section 4.8.2.
As the commenters note, the regulations
at § 648.90(a)(2)(iii) list at-sea and
dockside monitoring requirements
among the measures that may be
modified through the biennial review
process, as well as AMs, changes to
other administrative measures, and any
other measures currently included in
the FMP. In addition, the Council
deemed these regulations as consistent
with their intent in Amendment 16.
These changes are at most clarifications
and elaborations on how to determine
appropriate monitoring levels, not
wholesale changes to the monitoring
requirements. So, NMFS believes that
these changes are lawful under the
combination of allowable framework
provisions of the FMP and section 305
(d) of the Magnuson-Stevens Act which
authorizes NMFS to implement
regulations necessary to ensure that
Council measures are carried out in a
manner consistent with the Act.
Oceana and CLF raised similar
concerns that recommended coverage
rates based on a CV standard that is
applied at the overall stock level would
not provide reliable catch estimates for
the purpose of implementing AMs at the
sector ACE level. As NMFS discussed in
its summary of the appropriate level of
at-sea monitoring on sectors at http://
www.nero.noaa.gov/ro/fso/reports/
Sectors/ASM/FY2013_Multispecies_
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Sector_ASM_Requirements_
Summary.pdf and in response to these
same comments on the proposed rule
for FY 2013 sector operations plans,
Amendment 16 specified that ASM
coverage levels should be less than 100
percent. This means that discards and,
thus, total catch by definition shall be
based on estimates, rather than absolute
numbers. Thus, NMFS believes that it is
appropriate to utilize its stated
practicability standard in the
application of sector monitoring
requirements. The level of observer
coverage combined with the selfreporting requirements for sectors
should provide confidence that the
overall catch estimate is accurate
enough to ensure that sector fishing
activities are consistent with National
Standard 1 requirements to prevent
overfishing while achieving on a
continuing basis optimum yield from
each fishery. In the above referenced
analysis in response to Oceana’s
comments, NMFS examined the 256
sector ACE level catch figures (16
fishing sectors * 16 ACE allocations) in
comparison to the CV30 standard for FY
2011. This examination reveals that for
207 of the 256 ACE allocations, the
percent of discard pounds for which the
CV was greater than 30 percent was less
than 1 percent. For 43 of the remaining
ACE allocations, the percent of discard
pounds for which the CV was greater
than 30 percent ranged from 1–9.9
percent. There were 6 ACE allocations
for which the percent of discard pounds
with a CV greater than 30 percent
ranged from 10–66 percent. In addition,
discard estimates provided by required
at-sea monitoring coverage rates are not
the sole source of information for
monitoring of sector catch and making
a determination about whether a sector
has exceeded its ACE. Discard
estimates, to which the CV standard
applies, is only a portion of total catch.
Landings, provided by dealer purchase
reports, comprise the majority of total
catches for groundfish stock. The CV
analysis is conducted to evaluate the
calculation of discards, which are
typically less than 10 percent of the
overall catch of the allocated groundfish
stocks, and in FY 2011 were less than
5 percent of the catch for most allocated
stocks (while discards were a higher
percentage of total catch for GOM
yellowtail flounder, GB East cod, and
American plaice, the total catch of those
stocks were less than 90 percent of the
sub-ACLs and the CVs for those stocks
ranged from 4.4 to 15.4). To monitor
sector catch, not just discards, NMFS
and sector managers rely on a number
of data sources, including observer data,
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VMS, VTRs, VMS catch reports, and
dealer reports. Sectors are also required
to submit weekly reports, which are
broken down to the sub-trip level catch
and gear information, and these reports
are stepped up to daily certain catch
thresholds (for FY 2013 the daily
reporting threshold is 90% of any ACE)
are reached. NMFS conducts weekly
reconciliation of NMFS and sector
reports with sector managers to verify
that each sector and NMFS have the best
available data to monitor catch and
sector ACEs. In addition, due to the
joint and several liability of sector
members for certain violations,
including illegal discarding and
misreporting of catch, there is a strong
incentive for sector members to selfenforce monitoring and reporting
requirements and ensure the sector has
the most accurate information available.
Based on the totality of this information,
NMFS concludes that the performance
standard implemented at the overall
stock level results in reliable catch
estimates for monitoring sector ACEs.
The monitoring program, including
the application of the performance
standard, must be implemented
consistent with the different goals and
objectives of sector monitoring
programs, as well as the requirements of
the other National Standards, which
requires a balancing of competing
objectives. As NMFS discussed in Item
14 of the preamble, in addition to the
revised goals and objectives in
Framework 48, NMFS will specifically
take into account National Standards 2,
7, and 8 in making its determination of
the appropriate level of at-sea
monitoring coverage for sectors on an
annual basis. These National Standards
specifically speak to using the best
scientific information available,
minimizing costs and avoiding
unnecessary duplication where
practicable, taking into account impacts
on fishing communities, and
minimizing adverse economic impacts
to the extent practicable. In addition, to
account for any lack of absolute
precision and accuracy in estimating
overall catch by sector vessels,
uncertainty buffers are deducted before
specifying commercial groundfish
fishery sub-ACLs. In light of all these
requirements, and in absence of any
evidence provided by the commenters
to the contrary, NMFS concludes that
sector monitoring requirements overall,
including the performance standard
applied at the overall stock level, are
sufficient to monitor sector catch toward
ACEs.
Comment 26: CLF, NSC, and CCCHFA
supported the provision to reduce at-sea
monitoring coverage on trips targeting
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monkfish in the Southern New England.
Commenters supported this measure
because it would reallocate limited
resources and coverage to trips that
catch groundfish. CLF called for the
development of a full retention/
electronic monitoring program for such
trips, because it would provide valuable
catch data and compliance incentives,
rather than reducing coverage. CLF also
urged NMFS to monitor this exemption
to ensure it does not create a loophole
for groundfish discards.
Response: NMFS agrees that this
measure would prioritize limited
resources and monitoring coverage for
trips that catch groundfish. Currently
these trips that catch little to no
groundfish are receiving the same level
of coverage as other sector trips, with no
resultant benefits to the overall
precision and accuracy of groundfish
discard estimates. By exempting these
trips from some level of at-sea
monitoring coverage, those resources
can be directed to cover trips with
actual catches of groundfish and,
thereby, improve the estimates of
groundfish discards. For these reasons,
has approved this measure through this
final rule.
NMFS understands CLF’s concerns
that this measure could create a
loophole for increased discards of
groundfish. However, given the size of
mesh used on these trips (10 in, 25.4
cm), it is unlikely that catch of
groundfish on these trips would
increase beyond those analyzed in the
development of Framework 48.
GB Yellowtail Flounder Management
Measures
Comment 27: NMFS received three
comments opposing a separate GB
yellowtail flounder discard rate stratum
for statistical area 522. NSC, CLF, and
one individual opposed this measure
because it would complicate monitoring
and increase administrative burden to
NMFS and sectors without any real
benefit. CLF expressed concern that this
measure would create another loophole
for misreporting of catch of GB
yellowtail flounder by vessels on
unobserved trips and urged NMFS not
to approve this measure until it can
implement measures to reduce
misreporting.
Response: NMFS shares the
commenters concerns that this measure
could complicate monitoring and
increase the administrative burden for
sectors and NMFS without any
measurable benefits. Because of the
potential added cost of implementing
and administering this measure, it may
increase costs more than it provides
benefits to the fishing industry or the
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efficient management and monitoring of
catches, which would not be consistent
with National Standards 5 and 7 of the
Magnuson-Stevens Act. Both sectors
and NMFS would have to modify quota
monitoring programs and reports to
accommodate the new strata, increasing
the administrative burden for sector
managers and NMFS. NMFS also
remains concerned about how this
revised strata, combined with other
changes to the discard rate method in
FY 2013, will affect the variance of
discard rates and thereby affect our
ability to achieve the performance
standard for sector monitoring at
recommended coverage rates. As CLF
notes, it is also possible that this
measure could further complicate
monitoring and increase uncertainty of
catch estimates by creating an incentive
to misreport catches of GB yellowtail
flounder on unobserved trips as having
been caught in statistical area 522 in
order to get a reduced discard rate.
On the other hand, this measure
would have no real benefits for a sector
that could not be achieved under the
existing discard rate scheme. A separate
discard rate in statistical area 522 could
benefit an individual vessel fishing in
deeper water in this area with a lower
GB yellowtail flounder discard rate that
would not be influenced by higher GB
yellowtail flounder discards by other
vessels in its sector fishing elsewhere on
Georges Bank. However, the sector’s
fishing season on GB would still be
limited by the total catch of GB
yellowtail flounder by all its member
vessels. If some vessels in the sector
continued to have high discard rates of
GB yellowtail flounder on other parts of
Georges Bank, the entire stock area
could still close early in the season,
including statistical area 522. This finer
stratum would not free a sector from
having to manage its vessels’ effort to
extend its fishing season next year.
Thus, NMFS agrees with commenters
approving this measure would increase
the cost and administrative burden of
sector monitoring for sectors and NMFS
without any corresponding benefits to
sectors. NMFS has concluded that this
would not be consistent with the
requirements of National Standard 5
and 7 and NMFS has disapproved this
measure in Framework 48.
Comment 28: AFM, the Portland Fish
Exchange, and one individual
commented in support of the revised GB
yellowtail flounder discard rate strata
for sector vessels. Commenters believed
this measure would more accurately
reflect actual discard rates of GB
yellowtail flounder in statistical area
522, and enable sector vessels to have a
longer fishing season on Georges Bank.
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Response: NMFS agrees that finer
scale strata would allow discard rates to
more closely reflect actual discard rates
over smaller areas. However, as
discussed fully in NMFS’s response to
Comment 27, NMFS disagrees that this
measure would have any real benefits
for a sector that could not be achieved
with existing discard rate strata. A
separate discard rate in statistical area
522 could benefit an individual vessel
fishing in this area with a lower GB
yellowtail flounder discard rate.
However, this measure alone would not
prevent a sector’s fishing season on GB
from ending prematurely. As a result of
this new strata, GB yellowtail discard
rates in the rest of GB would be higher
and, thus, if the sector did not also
manage yellowtail flounder discards on
other parts of GB, it would still be
limited by the total catch of GB
yellowtail flounder by all its member
vessels. As analysis showed in the
Framework 48 EA, the new strata are
unlikely to affect the overall discard
estimates of GB yellowtail flounder,
meaning that sector vessels would still
have to avoid GB yellowtail flounder in
order to prolong their fishing season.
The most effective way to prolong a
sector’s fishing season on GB would be
through active management of effort and
catch by its member vessels. If a sector
wanted to incentivize its vessels to fish
in deeper water and avoid yellowtail
flounder, or ensure that one member’s
high yellowtail flounder discard rate
does not penalize another vessel that
avoids yellowtail flounder, they could
differentially charge individual member
shares based on discard behavior.
Sectors can do this under the existing
discard strata scheme, without
unnecessarily complicating monitoring
for other sectors. In contrast, the
proposed measure could have real
effects on monitoring practices for both
NMFS and sectors. Implementing this
measure would increase administrative
costs and burden associated with
monitoring and without any real
benefits for sectors, which would reduce
efficiency and would not be consistent
with National Standards 5 and 7. NMFS
believes the reduced efficiency is not
justified in light of the lack of real
benefits from this measure as discussed
in the response to the previous
comment on this measure. For these
reasons, NMFS has disapproved this
measure in Framework 48.
List of Allowable Sector Exemption
Requests
Comment 29: Over 75,000 comments
were received from various groups and
individuals opposing the proposed
change to allowable sector exemption
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requests as it pertained to year-round
groundfish closure areas. Many of these
comments were form letters submitted
through online nongovernment
organization campaigns. By comparison,
a limited amount of comments were
received supporting the proposed
change to allowable sector exemption
requests.
The comments opposing the
exemption proposal that would allow
sectors to request access to year-round
closure areas raise several objections.
While some of the specific comments
raise slightly different points, the major
issues raised are enumerated below.
Some of the topics have a great deal of
interrelatedness. By categorizing the
issues in this manner, NMFS can
provide a focused series of responses.
The primary issues raised are:
1. Commenters stated the areas should
not be opened because they provide
important protection for critical life
stages and spawning activities of
critically depressed fish stocks. Many
comments also stated the stocks in
question warrant additional closed area
protections, not less.
2. Commenters stated that access to
closed areas would provide only shortterm nominal economic gain but could
cause long-term biological impacts.
Commenters assert that because of this
the areas should remain closed.
3. Many commenters presented
arguments alleging the Framework 48
action illegally segments the required
NEPA analysis from the Council’s
ongoing Omnibus Habitat Amendment.
Commenters assert that NMFS and the
Council are seeking to avoid
development of an Environmental
Impact Statement (EIS) to evaluate the
potential impact of providing potential
access to closed areas.
4. Some commenters allege the
decision to provide sector exemptions
for closed area access was made before
the results of analysis were available.
5. Many comments were received
stating the closed area consideration
requires an EIS analysis under NEPA as
it is significant as defined by NEPA
criteria, the Framework 48 analysis is
insufficient, and the Framework 48 EA’s
Finding of No Significant Impact
(FONSI) conclusions are not supported
by the available analysis.
6. Commenters stated the impacts to
Marine Mammal Protection Act
(MMPA) and Endangered Species Act
(ESA) protected species are inadequate
and, in some regards, completely absent
from the Framework 48 analyses.
7. Commenters state the rulemaking
and analytical procedure used for
Framework 48 was inappropriately
conducted, insufficient, and
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circumvented necessary public
participation and comment.
8. Commenters stated the closed areas
in question are mischaracterized as
redundant mortality control closures in
Framework 48. Commenters state that
the areas under consideration were
created for and provide much broader
benefits than just controlling fishing
mortality.
9. Commenters allege Framework 48
analysis did not analyze a sufficient
range of alternatives when considering
closed area access through sector
exemption.
10. Commenters assert the scope and
scale of the action requires an FMP
amendment, stating the action cannot be
taken through a framework adjustment
to the FMP.
Response: The comments opposing
modification of the allowable sector
exemption request provisions are
misapplied with respect to the
Framework 48 rulemaking process.
NMFS is not permitting access to yearround closed areas through the
measures implemented in this final rule.
Nor is NMFS modifying or changing any
closed areas or essential fish habitat
areas or boundaries. This rule only
modifies the list of allowable sector
exemptions under current regulations.
This modification itself does not
provide any access to groundfish closed
areas at this time. This action merely
allows sectors the opportunity to
request access to portions of year-round
closed areas through their annual sector
operations plans by removing the
prohibition on granting such requests. A
more extensive analysis than was
conducted for Framework 48 is
necessary for NMFS to make any
determination on potential sector access
to closed areas for FY 2013, or in
subsequent fishing years.
The Regional Administrator, in
conjunction with requesting sectors, is
obligated under the sector exemption
process established in Amendment 16 to
consider whether to approve sector
exemption requests that are not
prohibited under the FMP. To do so,
analysis of the requested exemptions is
necessary to determine if the exemption
in question can be approved. From the
Amendment 16 final rule preamble (75
FR 18276; April 9, 2010):
Sectors may [still] request and analyze
additional exemptions as part of their yearly
operations plans, but such exemptions need
to be approved by the Regional
Administrator.
The accompanying regulations for the
sector exemption approval process are
found at § 648.87(c)(1) and(2).
Summarized, these regulations specify
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that NMFS, through the Regional
Administrator, will allow exemptions
that are consistent with the goals and
objectives of the FMP and conduct the
approval process consistent with the
Administrative Procedure Act (APA)
and other applicable law. The other
applicable law includes, among others,
NEPA, the Magnuson-Stevens Act,
MMPA, ESA, and the Regulatory
Flexibility Act.
By lifting the prohibition on sectors
requesting access to year-round closed
areas, NMFS will evaluate requests in
the same process as any exemption
request consistent with the process
outlined in Amendment 16 and past
practices. Sector requests were made in
the sector’s respective 2013 operations
plans submitted in September 2012 in
anticipation of this prohibition being
lifted in this action to meet a May 1,
2013 effective date. However, NMFS
reiterates that no decisions on sector
exemption requests have been made to
access closed areas in conjunction with
Framework 48 since this framework
simply addresses a procedural issue
pertaining to closed area openings.
Further, since the necessary analyses
have not yet been completed, an
additional sector rule to consider and
potentially approve any year-round
closure openings would be delayed
beyond May 1. Indeed, NMFS must still
decide which, if any, exemptions will
be granted, and, if granted, whether
seasonal, area, gear or other types of
limitations are necessary to ensure any
exemption will be consistent with the
conservation and management
requirements of the groundfish FMP and
the Magnuson-Stevens Act. The analysis
in Framework 48 is based, in part, on a
preliminary analysis by the Closed Area
Technical Team (CATT) that provides
an initial overview of potential impacts.
However, the analysis did not
specifically analyze the actual impacts
of granting any exemptions because
Framework 48 is not intended to make
decisions concerning the closed area
exemption requests. The level of detail
in these analyses for Framework 48 was
sufficient for the type of change
implemented in Framework 48 but is
not sufficient to determine if, when, or
how sectors may be permitted closed
area access through exemptions.
Accordingly, the change implemented
by Framework 48 to allow NMFS to
consider granting sectors access to
closed areas has no actual impacts.
NMFS and the Council initiated the
process of evaluating potential sector
access to closed areas late in 2012 when
the issue was first raised at the Council
level. The CATT was formed in part for
this purpose and provided a cursory
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analysis of closed areas and the
potential impacts of allowing fishing in
these areas for Framework 48. CATT
analysis is ongoing and continues to
evaluate in greater detail the appropriate
areas needed to provide protection to
rebuilding groundfish stocks. Many of
the issues and concerns raised in the
extensive public comments submitted
for Framework 48 are important
considerations in NMFS’ ongoing
analysis. In response to the concerns
raised, the Council limited the potential
access to the closed areas only to the
portions that did not infringe on
currently defined habitat areas or any
currently proposed areas included in
the draft Omnibus Habitat Amendment.
NMFS is concerned that any access
provided to closed areas must be done
in a responsible manner such that stock
recovery is not impeded, protected
species are not negatively impacted, and
sensitive habitat and life stages are
protected. This ongoing analysis, when
complete, will be provided to the public
with opportunity for review and
additional comment, consistent with the
sector exemption review process
conducted for all sector exemption
requests and APA.
NMFS has initiated an EA in
connection with the separate
rulemaking process concerning these
requests to conduct the specific
environmental impact evaluations for
the closed area sector exemption
requests. In connection with the
separate rulemaking concerning these
requests, if the ongoing analysis
determines that a FONSI cannot be
supported for access to the closed areas,
the agency may elect to develop an EIS
prior to proceeding or cease closed area
access consideration until such time
that the Council’s Omnibus Habitat
Amendment is completed.
Once informed by analysis, NMFS
will also publish a proposed rule
outlining what type of access, if any,
may be granted to sectors as exemptions
in the 2013 fishing year. The proposed
rulemaking would also outline any
conditions required for exemption use,
if granted.
For example, as was stated publically
by the Northeast Regional Administrator
in the December 2012 and January 2013
Council meetings, NMFS is analyzing
the potential to provide seasonal access
with selective gears to Closed Areas I
and II, and the Nantucket Lightship
Closed Area, to target healthy fish
stocks. Generally, NMFS is analyzing in
what months closed areas may be
accessed to avoid peak spawning
activity of depressed fish stocks, gear
conflicts, and encounters with MMPA
and ESA protected species. NMFS is
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also evaluating habitat-related impacts.
The analysis is examining what
selective gears may better minimize
catch of depressed fish stocks while
providing strong catches of healthy
stocks. The initial analysis along with
substantial public opposition to opening
closed areas in the Gulf of Maine, i.e.,
the Western Gulf of Maine and Cashes
Ledge Closed Areas, suggest that it may
not be possible or desired to provide
access to these areas in FY 2013.
NMFS has also stated in the proposed
sector operations plan approval rule (78
FR 16220; March 14, 2013) that it is
considering a 100-percent monitoring
requirement for participation in any
closed area exemption granted for FY
2013. NMFS acknowledges the potential
costs associated with monitoring are
substantial and may limit the utility of
closed area access, if provided for FY
2013. NMFS views this requirement as
a necessary component to responsibly
monitor activity in closed areas, if
access is permitted in FY 2013. NMFS
has already committed to providing
funding for required at-sea monitoring
for general fisheries and is looking into
other possible means to fund all, or part,
of the monitoring requirements being
considered for potential approval of
requests for access to year-round closure
areas.
NMFS has been clear that the specific
evaluation of closed area access would
occur as a separate step through an
independently severable analysis and, if
warranted, rulemaking. NMFS currently
anticipates that the ongoing analysis
will continue through mid-June. Should
the analysis support responsible
alternatives for sector access to closed
areas, proposed rulemaking would
occur this summer.
The issues raised in public comment
for this rule, as NMFS has pointed out,
will be analyzed if and when NMFS
decides to propose granting any sectors
access to closed areas. Most of the issues
raised in these comments already have
been identified by NMFS as part of the
closed area sector exemption analysis
initiated in early 2013 and helped
inform the Council in limiting closed
areas access to avoid conflicts with
existing and future habitat concerns.
The removal of the prohibition on
requesting access to specific portions of
closed areas as a sector exemption
implemented by this rule is not selfactuating and in that sense is more
procedural in nature. It removes a
regulatory impediment to granting such
requests but does not, itself, provide
closed area access or predetermine that
such access would be granted when
requested. NMFS has determined,
however, that the concept of allowing
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access to closed areas on a limited and
controlled basis that NMFS can
prescribe through the sector exemption
process is supportable and necessary,
consistent with Magnuson-Stevens Act,
National Standards and other
requirements, to provide possible
mitigation of negative impacts resulting
from severe cutbacks in catch limits by
facilitating achieving optimum yield
(OY) for some groundfish stocks. For
that reason, NMFS does not believe it is
necessary to fully analyze potential,
speculative impacts that do not result
from this action nor to disapprove the
procedural measure allowing sectors to
request and be granted access based on
the specific objections raised by public
comment. As long as the types of
concerns raised by the public regarding
access to closed areas can be adequately
addressed or accounted for in the sector
exemption process, there is no basis for
disapproving the procedural measure in
Framework 48 allowing access to be
granted. To illustrate that potential, the
following provides NMFS’ preliminary
responses to each enumerated objection
based on NMFS’ ongoing analysis on
whether to grant limited access to
closed areas to sectors:
1. The areas should not be opened
because they provide important
protection for critical life stages and
spawning activities of critically
depressed stocks. NMFS acknowledges
that the status of many key NE
groundfish stocks is poor. NMFS is
concerned about potential impact on
stock recovery that may result from
access to closed areas and this is a key
investigation being developed in the
ongoing closed area sector exemption
analysis. However, no decision has been
made at this time on whether sectors
will be granted access to closed areas in
FY 2013, nor has a decision been made
on how access may be structured if
granted.
The CATT is deeply involved in
ascertaining how potential changes in
closed areas as part of the Omnibus
Habitat Amendment may impact fish
stocks. NMFS is an active member of the
CATT and has already been making use
of CATT-generated analyses in its sector
exemption evaluation. NMFS is
conducting independent evaluation of
the specific impact of seasonal access
with selective gear in Closed Areas I and
II, and the Nantucket Lightship Closed
Area, as part of the closed area sector
exemption evaluation process. NMFS’s
analysis is geared toward identifying
key times in which access to closed
areas may potentially disrupt or
otherwise impact spawning activities
with the intent of not providing closed
area access during such times. The
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analysis is ongoing and will be provided
to the public with an anticipated
availability of mid-summer, 2013.
2. Access to closed areas would
provide only short-term nominal
economic gain but could cause longterm biological impacts. NMFS agrees
that the limited analysis conducted for
Framework 48 indicates that economic
benefit is difficult to predict one way or
the other. If economic benefit is small,
that may mean that the closed areas are
not that important to groundfish stocks
and access to the closed areas is not
detrimental. On the other hand, if there
are significant amounts of groundfish
stocks in the closed areas, it may be
important to allow fishing on a
controlled and conservative basis in
order to maximize OY for those stocks.
To be sure, as indicated in these
analyses, the long-term impact on
recovering stocks in these closed areas
is of paramount importance. But to deny
any opportunity to fish in the closed
areas unnecessarily limits the
possibility of providing the fishing
industry the opportunity to catch as
much fish as possible as long as the
long-term health of groundfish stocks is
protected.
3. The action illegally segments the
required NEPA analysis from the
Council’s ongoing Omnibus Habitat
Amendment. NMFS disagrees that
either Framework 48 or the as-of-yet
completed closed area sector exemption
request evaluation segments the NEPA
analysis. Classic segmentation concerns
raised by commenters pertain only to
situations wherein the responsible
agency seeks to avoid development of
an EIS. This is not the case here. In its
broadest sense, segmentation occurs
when an agency impermissibly narrows
the scope of its NEPA analysis by either
failing to evaluate the environmental
impacts of an entire multi-stage decision
where irreversible commitments are
made at the initial decision point
without consideration of the
environmental impacts of later stages;
or, where the agency excludes
connected actions (i.e. those that are
interrelated or interdependent) from the
scope of its NEPA analysis. Neither of
those circumstances is present in this
case. In addition, the initial decision to
allow sectors to request exemptions
from closed sectors does not make any
irretrievable commitment. That is, it
would not commit the agency to any
future course of action that will cause
adverse consequences to the
environment. Again, prior to approving
or disapproving any specific request for
access, the agency will consider the
environmental impacts and prepare the
appropriate level of NEPA analysis; i.e.
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an EA or EIS. Moreover, the actions at
issue are not interdependent or
interrelated; each is supported by its
own rationale and has independent
utility as explained below. The EA for
Framework 48 rightly supports a FONSI,
in large part, because rescinding the
prohibition on sectors requesting
specific closed area exemptions does
not itself result in actual impacts on the
environment, nor does it cause indirect
effects that are later in time but
reasonably foreseeable. Any potential
indirect effects are merely speculative.
NMFS has acknowledged that an EIS
will be completed if a FONSI cannot be
supported based on the EA evaluating
the closed area sector exemption
requests. The EA is serving its intended
purpose to facilitate our determination
as to whether any significant impacts
will result from a decision on closed
area exemption requests, and thus
whether an EIS may be required for that
action. If NMFS determines that the
impacts from a later action to grant
some level of access to closed areas
would necessitate consideration in an
EIS, and NMFS decides to move forward
with said action rather than wait for
completion of the ongoing Omnibus
Habitat Amendment, a Notice of Intent
would be published in the FR to make
the public aware of the agencies intent
to prepare an EIS. As indicated here,
NMFS is interested in developing
potential alternatives for closed area
sector exemption analysis that seek to
minimize potential impacts. To the
extent that commenters contend that
this Framework 48 measure is an
attempt to unlawfully ‘‘segment’’ the
larger Omnibus Habitat Amendment to
avoid an EIS, those concerns are
misplaced. In support of their
comments, they cite to federal court
decisions that define segmentation as
splitting federal actions into smaller
units to avoid developing an EIS. The
Council and NMFS have every intention
to and are preparing an EIS for the
Omnibus Amendment. Moreover, the
inclusion of the procedural measure to
allow access to closed areas is not being
‘‘split off’’ from the Omnibus Habitat
Amendment. The measure is a discrete
action, independently justified and
analyzed that does not foreclose any
consideration of alternatives in the
Omnibus Habitat EIS nor does it result
in obviating the need to prepare an EIS
for the Omnibus Habitat Amendment.
While the Framework 48 measure may
involve similar issues as the Omnibus
Habitat Amendment, they are not
directly connected actions. NEPA is a
procedural statute intended to require
full analysis of environmental impacts
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and is not intended to dictate outcomes.
All actions that related to closed areas
do not have to be evaluated within the
scope of a single NEPA document. The
fact that the Omnibus Habitat
Amendment is examining closed areas
in a separate action through an EIS does
not preclude the Council and NMFS’
consideration and adoption of
independent measures in the meantime
that are tangentially related to the
amendment, as long as those actions
independently satisfy NEPA
requirements. Moreover, even if there
were a credible basis for concluding that
the Framework 48 measures was a
splitting off of an action from the
Omnibus Habitat Amendment, for
which there is not, the Framework 48
measure meets the test cited by
commenters concerning segmentation.
The measure is a discrete action,
independently justified and analyzed
that does not foreclose any
consideration of alternatives in the EIS
being prepared for the Omnibus Habitat
Amendment nor does it irretrievably
commit resources. Thus, NMFS
considers the scope of the EA
supporting the implementation of the
Framework 48 measure allowing the
granting of access to closed areas to be
consistent with NEPA.
4. The decision on closed areas was
made before the results of analysis were
available. NMFS disagrees that any
decision to grant access to closed areas
has been made. As has been stated
previously, the action in Framework 48
only removes the prohibition on sectors
requesting year-round closed area
exemptions. It does not grant or
guarantee any such exemptions will be
provided much less how any
exemptions would be structured, if
granted. NMFS has stated multiple
times its intent to conduct thorough
analyses to inform decision-making on
the requests for closed area sector
exemptions. This analysis is ongoing
and, as such, no decisions on closed
area access have been made at the time
of this rule’s publication. Any access
proposed will be fully informed by
rigorous analysis that began early in
2013 and is anticipated to be completed
during the summer of 2013.
Rulemaking, consistent with APA, will
also occur as needed.
5. The action requires an EIS analysis
under NEPA as it is significant as
defined by NEPA criteria, the
Framework 48 analysis is insufficient,
and the FONSI conclusions are not
supported by the available analysis.
NMFS disagrees with the assertions
made by the commenters. Given the
action implemented in Framework 48 to
allow sectors to request exemption from
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closed areas not designated for habitat
conservation, the analysis was wholly
appropriate. In fact, it went beyond
what was necessary given that the
procedural change involved with the
Framework 48 action does not itself
result in any impacts on the
environment. Because the action in
Framework 48 merely removes a
regulatory prohibition and does not
actually provide any closed area access,
the FONSI determinations are
appropriate. NMFS acknowledges that
the analysis conducted by the Council
in the Framework 48 EA does discuss
potential impacts if closed area access is
granted. However, NMFS asserts that
the potential impacts discussed are
applicable to the cumulative impacts of
the action, but are not determinative in
the FONSI, nor are they specifically
relevant to the Framework 48 measure
because no actual impacts will occur.
As previously stated, NMFS has
initiated an EA for evaluation of
potential closed area sector exemptions
in FY 2013. However, the substantive
analyses needed to determine if a
FONSI can be supported have not yet
been completed. NEPA process is clear
that if a FONSI cannot be supported,
then an EIS must be developed if the
agency wishes to continue the
development of the action. NMFS is
aware of the timing considerations
involved with the Council’s initial
request to consider sector closed area
access exemptions in FY 2013. If
analyses conclude that a FONSI
determination cannot be made for
potential closed area exemptions, even
if the access is constrained in a manner
to reduce or eliminate potential impacts,
NMFS and the Council will need to
evaluate what is the most logical next
step: To develop a separate EIS to
consider only potential sector closed
area exemptions or to defer any access
considerations until such time that the
Council’s Omnibus Habitat Amendment
is completed. It is neither possible nor
appropriate at this time to try and
determine if a FONSI can be supported
for sector year-round closed area
exemptions.
6. The impacts to species afforded
protections under MMPA and ESA are
inadequate and, in some regards,
completely absent from the Framework
48 analyses. NMFS acknowledges that
substantial additional analyses are
necessary to fully evaluate potential
marine mammal and ESA listed,
threatened, and candidate species
impacts associated with potential closed
area access prior to considering if,
when, and how access may be provided.
Much of the Framework 48 analysis was
a cursory evaluation of potential future
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impacts if sectors were provided access
to closed areas. The impacts on MMPA
and ESA species cannot be specifically
considered or determined until it is
known what limitations may be
prescribed on closed area access if
access is granted (see preceding
response pertaining to analysis).
However, the conclusions reached for
cumulative effects analysis and FONSI
statement determinations consider the
procedural nature of the actual change
implemented by Framework 48.
Specifically, the action to rescind the
prohibition on sectors requesting
exemptions from closed areas without
providing any actual access to such
areas. NMFS has initiated an ESAmandated Section 7 consultation and is
reviewing potential impacts to marine
mammals in the closed area sector
exemption consideration. As previously
stated, these analyses will be made
available for review and comment in
conjunction with proposed rulemaking
this summer. NMFS was aware of many
of the issues and concerns raised in
public comment on Framework 48 and
will make use of all the comments
received to better ensure that the
ongoing sector exemption review
thoroughly examines the potential
impacts for use in decision-making.
7. The rulemaking and analytical
procedure used was inappropriately
conducted, insufficient, and
circumvented necessary public
participation and comment. NMFS
disagrees with assertions made by the
commenters. NMFS reiterates that it has
been forthright about the potential
closed area sector exemption process
since outlining the sector exemption
approach as a possibility for considering
closed area access in FY 2013. For
clarity, here is the process as it has been
described and occurred: First, the
Council considered and ultimately
recommended to remove the prohibition
on sector exemption requests on a
limited basis for year-round closed area
access not designated as habitat areas in
Framework 48. This component was
developed though the Council process
and provided substantial opportunity
for public participation and input. Many
of the same objections and comments
raised in connection with this rule were
considered in the Council’s decision to
include the Framework 48 measure and
influenced its decision to limit access to
non-habitat areas. NMFS has conducted
Framework 48 rulemaking consistent
with the APA by providing opportunity
for public comment.
Concurrent to NMFS review and
rulemaking for the Framework 48
component, sectors were informed that
they could submit closed area
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exemption requests in their FY 2013
sector operations plans in the fall of
2012 in anticipation that access could
be potentially approved as early as the
start of FY 2013, if the Framework 48
procedural measure was approved. This
was done even though the prohibition
on such requests was still in effect. The
purpose of this was twofold: To better
understand the scope and scale of
potential requests moving forward in
the exemption review and analysis and
to help streamline the review process so
that if closed area access was provided
at some point in FY 2013, some of the
administrative process could be
frontloaded.
Finally, NMFS explained that the
agency would undertake the necessary
review and analysis of closed area sector
exemption requests if the provisions in
Framework 48 were approved. Now,
with this rule, NMFS has approved the
Framework 48 provisions that allow
sectors to request closed area
exemptions, interested sectors have
submitted requests for FY 2013, and
NMFS is continuing the process of
reviewing and analyzing those requests.
This is not dissimilar to the normal
process undertaken for sector exemption
review except that a regulatory change
was needed to make the requests in
question legal.
Another difference in the closed area
consideration that differs from the
standard sector exemption review
process is that there is no time certain
needed for completion of the review
process. Closed area exemption analysis
was anticipated to be extensive and it
was doubtful from the onset that
analysis would be complete for the May
1, 2013, start of the fishing year.
Because the closed area sector
exemption evaluation is not tied to the
start of the fishing year, this affords
additional time for review, analysis, and
action development and, because the
concerns raised in the Framework 48
public comment, additional time for
public review and comment through
normal APA rulemaking. NMFS is
proceeding as quickly as possible;
however, there are substantial analyses
that need to be completed as part of the
closed area access consideration
process.
We are hopeful that analyses will be
completed in time to allow the public
and Council an opportunity to review
the analytical work prior to the June
Council meeting.
8. The areas in question are
mischaracterized as redundant
mortality control closures. NMFS
acknowledges that the mortality control
characterization of those portions of
closed areas not specifically designated
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as habitat conservation areas has
become a misapplied term of art. The
record clearly shows that the areas in
question were created with several
considerations in mind, including
protection for spawning stocks and
improvement of benthic habitats. The
argument that any additional constraints
on mortality under a ‘‘hard TAC’’ or
ACL system are redundant is
unsubstantiated. By the logic implied by
this statement, no additional
management constraints other than a
catch limit would be necessary to
successfully manage fisheries. Clearly,
there are benefits to establishing
additional controls on fisheries such as
gear restrictions to minimize take of
juvenile fish or to reduce take of other
more depleted stocks. NMFS and the
Council’s CATT are conducting analyses
that seek to provide information on the
potential stock benefits of providing
protections to critical life stages and/or
spawning periods through restricted
time and area access to existing closed
areas.
9. An insufficient range of alternatives
were analyzed. NMFS disagrees. In
considering whether a sufficient range
of alternatives have been examined in
the context of fishery management, it
must be acknowledged that each
framework or amendment is
incremental in nature and builds on
extensive examination of myriads of
alternatives of how best to manage a
fishery. So, any consideration of specific
new measure has benefitted from the
examination of many alternatives in
previous actions. For example, one
commenter claims that exempted
fishing permits (EFPs) should have been
considered as an alternative for
accessing closed areas. This option was
discussed and considered by the Agency
in the initial discussions on how to
potentially provide closed area access in
FY 2013. EFPs can be issued by NMFS
under existing regulations and, as such,
are an option that requires no specific
Council analysis. If used, the EFP
process would conduct the necessary
analyses.
During the development of
Framework 48, the Council considered
and rejected potential access to habitat
closed areas as well as several
modifications to closed area boundaries.
The status quo, wherein no modification
to the sector exemption prohibition list
was made, was analyzed in Framework
48. The remaining alternative analyzed
was, as previously described, the
procedural change in the sector
exemption prohibition list to allow
sectors to request exemptions for access
to year-round closure areas not defined
as habitat closure areas. Having rejected
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alternatives that modified closed area
boundaries, the remaining option of
adopting the procedural change
considering the non-habitat areas that
remained for consideration was
sufficient. As previously stated, this was
the only action undertaken by
Framework 48.
Potential alternatives for actual closed
area exemptions will be developed by
NMFS as part of the sector exemption
review. NMFS has previously stated it is
considering a sub-set of the available socalled ‘‘mortality’’ closed areas for
potential sector exemptions. To date,
NMFS has indicated it is interested in
examining alternatives that permit
seasonal access to select areas with
selective gear types designed to increase
access to healthy stocks while
minimizing impacts on depressed fish
stocks and ESA-listed, threatened, and
candidate species, and marine
mammals.
10. The action cannot be undertaken
by a framework adjustment to the FMP.
NMFS disagrees that consideration of
closed area sector exemption access
cannot be undertaken through
framework adjustment to the FMP.
Furthermore, NMFS asserts that the
Oceana v. Evans (389 F.Supp.2d 4
(2005)) decision is not applicable in the
context raised by commenters.
Section 648.90 of the NE Multispecies
regulations contains among other things,
a description of the Council’s FMP
framework adjustment process. Section
648.90(a)(2)(iii) lists items that may be
addressed through a framework
adjustment. This list includes changes
to closed areas, management
boundaries, essential fish habitat, and,
most on point for this action, sector
administration provisions and sector
allocation requirements and
specifications.
Several commenters assert that the
adjustment contemplated access to year
round closed areas through sector
exemption requests, is beyond the scope
of what is permissible in a framework
adjustment. They cite in support of their
position that the action cannot be
undertaken through framework
adjustment, citing Oceana v. Evans that
states that allowing access to closed
areas is a fundamental change to the
FMP and is also inconsistent with the
goals and objectives established for the
FMP.
Oceana v. Evans specified that an
FMP amendment would be necessary
when a new concept or radical changes
to an existing concept were made in a
way not considered in the previous
FMP, prior amendments, or in hearings
held in preparation of such actions. The
findings in that case are distinguishable
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from the facts in Framework 48. The
FMP involved in that case, as contrasted
to the framework, did not have specific
listing of a frameworkable measure to
alter the boundaries of EFH. Moreover,
closed area access is not a new concept
in the FMP, nor is it a radical change to
procedurally change the prohibition on
sectors requesting closed area access
exemptions. Various levels of access
and modification of closed areas has
occurred on numerous occasions since
the inception of the FMP and though
several subsequent amendments. As
previously stated, all the Framework 48
action does is remove the prohibition on
sectors requesting access to closed areas
through exemptions. It does not change
the boundaries of the closed areas or
EFH, nor does it fully open the closed
areas. It only permits the potential for
limited access to year-round closed
areas by sectors. Additional analysis is
necessary to determine if, when, and
how sectors may be exempted to access
these closed areas.
Beyond the Framework 48 action, the
areas where NMFS is examining
potential sector access through
exemptions are all areas that are open
seasonally and to specific gears through
either Special Access Programs or
scallop rotational access areas. Inherent
in the process previously outlined for
review and analysis of potential sector
exemptions, i.e., the next phase under
consideration by NMFS, is the need to
ensure consistency with the goals and
objectives of the FMP. If the action
eventually contemplated by NMFS were
inconsistent with the goals and
objectives, then it would be a fair
assertion that the action in question
should be developed through an FMP
amendment. Because NMFS intends to
analyze alternatives that seek to
minimize potential negative impacts
and, as a result, remain wholly
consistent with the FMP objectives, it
asserts that the sector exemption
evaluation for closed area access can be
developed through a framework
adjustment.
In summary, NMFS asserts that the
action implemented by Framework 48 is
primarily procedural in nature with no
actual environmental impacts, and, as
such, the majority of comments and
issues raised do not apply. Rather, they
are issues to be addressed moving
forward in the sector exemption review
process. NMFS has determined that the
concept of allowing access to closed
areas on a limited and controlled basis
through the sector exemption process is
supportable and necessary, consistent
with Magnuson-Stevens Act, National
Standards and other requirements. The
access, if ultimately granted is designed
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to provide possible mitigation of
negative impacts resulting from low FY
2013 catch limits by facilitating
achieving OY for some groundfish
stocks. NMFS intends to only consider
potential access to the closed areas in
areas that do not infringe on currently
defined habitat areas or any currently
proposed areas included in the draft
Omnibus Habitat Amendment.
Furthermore, NMFS is developing the
analyses around alternatives that
provide potential seasonal access to
Georges Bank and Southern New
England with selective gear. NMFS has
been and continues to work on analyses
that seek to address many of the issues
raised. NMFS anticipates providing
information on the status of the analysis
and rulemaking at the June 2013
Council meeting.
Requirement To Stow Trawl Gear
While Transiting
Comment 30: Eight commenters,
including the Council, the Portland Fish
Exchange, AFM, NSC, MEDMR, and
three individuals, supported removing
trawl gear stowage requirements for
groundfish vessels. Commenters stated
that the gear stowage requirements are
no longer useful and that VMS is
sufficient to enforce transiting of closed
areas. Some commenters urged NMFS to
approve this measure because the
existing requirements are unsafe. One
commenter suggested that the existing
requirements actually make it easier for
a vessel to illegally fish in a closed area,
because it gives the illusion that trawl
gear is properly stowed from the air.
The Council also noted that neither the
USCG nor NMFS representatives
opposed the proposed measure when it
came up for vote at Council meetings.
Response: NMFS disagrees that the
existing trawl gear stowage
requirements are no longer useful and
that VMS is a sufficient alternative tool
for enforcement of closed areas. As
discussed in Item 4 of the preamble to
this final rule, a few VMS positions or
a reduced calculated speed in a closed
area is not sufficient to enforce the
prohibition on fishing when vessels are
allowed to transit a closed area. The
purpose of gear stowage requirements
were not just to make stowed gear
visible from the air, but to increase the
time it would take for vessels to hide
illegal fishing activity before a boarding
by enforcement personnel at sea. They
could also be a deterrent by increasing
the likelihood of being caught.
Eliminating these requirements for only
some vessels would complicate
enforcement and could make it difficult
to detect and prosecute unlawful fishing
in closed areas, which would
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undermine the effectiveness of these
areas to achieve the objectives for which
they were established as conservation
and management measures in the FMP,
including the protection of spawning
and juvenile fish, habitat, and protected
species. To the extent that closed areas
were established to comply with
sections 303(a)(1) and (7), and National
Standard 9 of the Magnuson-Stevens
Act to rebuild or ensure the long-term
sustainability of fish stocks and
fisheries, to minimize the adverse
effects of fishing on habitat, or minimize
bycatch of certain stocks or protected
species, undermining these measures
would be inconsistent with these
provisions. Although the Council
commented that the requirements are a
relic of an earlier management regime,
it did not provide any additional
rationale to address NMFS concerns that
eliminating these requirements would
undermine the conservation objectives
of closed areas and be inequitable to
vessels in other FMPs. It is also not clear
why the Council believes these
measures do not apply in a sector
management or ACL and AM system,
when sector vessels are still prohibited
from fishing in closed areas.
Although this measure would have
some safety benefits for groundfish
vessels, it would have been inconsistent
with National Standard 4 of the
Magnuson-Stevens Act requiring
measures to be fair and equitable
because it does not extend the safety
benefits to other fisheries. Framework
48 also did not provide sufficient
rationale as to why eliminating these
requirements, rather than modifying
them, satisfied the criteria of National
Standard 10 to reduce risk while
meeting the needs of conservation and
management. For these reasons, NMFS
has disapproved this measure in
Framework 48.
NMFS does share commenters
concerns, however, that the existing
trawl gear stowage requirement can be
unsafe for crew in bad weather. That is
why NMFS will be initiating a separate
management action to consider
modifications to the gear stowage
definition recommended by the
Council’s VMS/Enforcement Committee
to address safety concerns while still
meeting the needs of conservation and
management. With respect to one
commenter’s concern that this measure
actually makes it easier for vessels to
hide illegal fishing activity, the VMS/
Enforcement Committee considered this
issue during its deliberations and
examined different materials that could
be used to cover the net while still
making it visible from the air. NMFS
intends to consider these materials and
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26149
other ideas the Council or industry may
have to improve the enforcement of
these requirements from the air in its
separate rulemaking.
Comment 31: The USCG and CLF
opposed eliminating gear stowage
requirements for groundfish trawlers
and urged NMFS to disapprove this
measure. The USCG commented that the
proposed measure would make current
and future closed areas virtually
unenforceable. While VMS is an
effective tool to enforce closed areas
when transits are not allowed, it is not
sufficient to document vessel activities
when transiting is allowed. The USCG
contends that eliminating these
measures would reduce the time
required to set and recover fishing gear,
and thereby undermine enforcement of
transiting restrictions at sea. The USCG
also maintains that inconsistent gear
stowage requirements would
unnecessarily complicate enforcement,
undermining the conservation
objectives of closed areas. Furthermore,
the USCG is concerned that this
measure does not extend safety benefits
to vessels in other FMPs, raising serious
equity issues. CLF noted this measure
was adopted against the advice of the
Council’s VMS/Enforcement Committee,
and is concerned that removing these
requirements would further exacerbate
what it believes to be already an
extensive problem of illegal fishing
activity and misreporting of catch.
Response: NMFS agrees with the
commenters that the proposed measure
does not adequately balance the needs
of safety with those of conservation and
management, which is one reason why
NMFS has disapproved this measure in
Framework 48. NMFS agrees that these
requirements are still needed to enforce
the prohibition on fishing in closed
areas and do not wish eliminating these
requirements in the name of safety to
open up a loophole for illegal fishing
that would undermine the conservation
benefits of closed areas for protecting
spawning fish and habitat. Given that
NMFS is initiating a separate
rulemaking to address safety issues
while ensuring and even improving the
effectiveness of the requirements for
enforcement, NMFS has disapproved
this measure in Framework 48.
Correction to Eastern U.S./Canada
Quota Monitoring
Comment 32: The Council, CLF,
Earthjustice, and CCCHFA commented
against NMFS proposed correction to
the regulations. The Council and other
commenters questioned NMFS’
authority to make this change without
explicit Council action, and asked
NMFS to disapprove this change,
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particularly in light of continued
concerns of misreporting of catches of
Eastern GB stocks. The Council also
noted that NMFS proposed change
would not be consistent with the
regulations that the Council deemed as
consistent with Amendment 16. The
commenters urged NMFS to return to
the former method of monitoring,
counting all catch of cod, haddock, and
yellowtail against Eastern GB TACs, to
eliminate possible incentives to
misreport these stocks that may have
arisen by NMFS change to its
monitoring practices since 2010.
Earthjustice also requested that NMFS
apply its correction retroactively and
adjust catches for FY 2010–2012 and
payback any overages that result to be
consistent with the regulations.
Response: NMFS acknowledges the
clarification provided by the Council
and has disapproved its proposed
correction in this final rule. In light of
this clarified interpretation of
Amendment 16, NMFS will revise its
quota monitoring methods beginning
with FY 2013 to be consistent with the
regulations and will count all catch of
cod, haddock, and yellowtail caught on
trips inside and outside the Eastern
U.S./Canada Area against the U.S./
Canada TACs, sub-ACLs, and ACEs. The
details of how NMFS intends to
implement this monitoring method are
described in Item 4 of the preamble.
NMFS does not intend to apply this
measure retroactively to FY 2010–2012,
because that would unfairly penalize
sector vessels and the common pool by
changing the rules long past the time
they could do anything to comply with
them. NMFS disagrees that adjusting
catches in FY 2010–2012 would result
in more accurate catch estimates, but
rather estimates that are consistent with
the letter of the regulations. Estimates
under the precautionary method may be
more accurate, if one believes estimates
of Eastern GB catches are biased low
because vessels report some catch as
from GOM or Western GB. Neither the
Council nor NMFS, however, believe
that all catches of cod, haddock, or
yellowtail on all multi-area trips into
the Eastern U.S./Canada Area are
actually caught in Eastern GB. The
purpose of this measure is not to
apportion catch more accurately, but to
provide a disincentive to fish in both
the Eastern Area and Western GB/GOM
and thereby be able to misreport catch.
One would expect that if this measure
had been in place during FY 2010–2012,
fewer trips would have been fished in
both the Eastern Area and other areas.
Thus, applying this measure
retroactively would not necessarily
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result in catch estimates that are more
accurate, but rather estimates that are
perhaps biased high instead of low.
Retroactively adjusting catch estimates
would also have implications for other
stocks, biasing low catches of Western
GB stocks and GOM cod and haddock,
which would potentially underestimate
mortality on those stocks. NMFS
maintains that catch estimates in FY
2010–2012 were consistent with NMFS
interpretation of Amendment 16 at the
time, as NMFS described in the
preamble to the Amendment 16 final
rule, and the guidance NMFS provided
to common pool and sector vessels for
complying with the regulations. NMFS
will revise its monitoring protocol for
FY 2013 going forward, which would
allow sector and common pool vessels
to plan their fishing seasons based on
the new rate of utilization of their
Eastern allocations.
Comment 33: MEDMR, NSC, AFM,
and one individual commented in
support of NMFS proposed change to
the regulations. The commenters
believed that NMFS existing monitoring
method was consistent with the
Council’s intent in Amendment 16 to
increase operational flexibility for
vessels to fish in multiple areas and to
apportion catch according the area
reported fished. Some commenters
argued that there is no evidence of
widespread misreporting, and
emphasized that even if there was it
would have management and not
biological implications. Some
commenters expressed concerns that
returning to the Framework 42 method
of catch attribution would not fix
misreporting issues, but would only
reduce flexibility for vessels, thereby
making trips to Eastern GB too costly
and reducing vessels’ ability to target
GB haddock. One commenter was
concerned that the Framework 42
method would actually result in less
accurate catch estimates by incorrectly
apportioning catch.
Response: NMFS understands
commenters concerns, but in light of the
clarification received from the Council,
NMFS is disapproving its proposed
correction in this final rule and will
instead revise its monitoring protocol to
be consistent with the regulations.
NMFS does not believe it has authority
in the context of this action to
reconsider and override the Council’s
clarified intent in Amendment 16
regarding this measure. A detailed
description of how NMFS intends to
implement the requirements is available
in Item 5 of the preamble. NMFS agrees
that the intent of Amendment 16 was to
attribute catch to stock based on all
available information (see 4.2.3.5.3 of
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Amendment 16). This would seem to
conflict with the language of Framework
42. As discussed in the preamble, NMFS
intends to implement both of these
requirements by counting all catch of
cod, haddock, and yellowtail on trips
that declare into the Eastern U.S./
Canada area inseason for the purpose of
determining when a TAC has been
reached and a closure is necessary. At
the end of the fishing year, for the
purposes of determining if a TAC has
been exceeded and an AM is triggered,
NMFS will subtract any catches on trips
that declared into the Eastern U.S./
Canada but showed no fishing activity
in those areas on VMS. NMFS believes
this would satisfy the intent of
Framework 42 and Amendment 16, and
meet our obligations to ensure the
integrity of US/Canada TACs. Although
there may be no conclusive evidence of
misreporting of Eastern GB catches, the
Council chose through Framework 42 to
address a management problem with a
policy decision to count catch in
precautionary inseason to maintain the
integrity of TACs agreed to with Canada.
As noted in the response to Comment
32, this measure is not intended to
necessarily attribute catch more
accurately but to address a specific
management problem, which is to
ensure the U.S./Canada TACs are not
exceeded. Because NMFS did not
provide details of this monitoring
method in the proposed rule for
Framework 48, NMFS will collect
additional public comment on it at this
time.
Changes From the Proposed Rule
NMFS has made three changes from
the proposed rule. Based upon public
comment, the coordinates for the
Atlantic Halibut Fixed Gear AM Area 1
was revised to correct errors contained
in the proposed rule. In addition, NMFS
withdrew its proposed correction to the
regulations pertaining to monitoring the
Eastern U.S./Canada TACs, and will
instead be returning to the Framework
42 method of monitoring (see Item 5 of
the preamble). Finally, NMFS
implements revised status
determination criteria for white hake
through this interim final rule (see Item
7 of the preamble).
Classification
The Administrator, Northeast Region,
NMFS, determined that the approved
measures of Framework 48 are
necessary for the conservation and
management of the NE multispecies
fishery and that it is consistent with the
Magnuson-Stevens Fishery
Conservation and Management Act and
other applicable laws.
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This final rule has been determined to
be not significant for the purposes of
Executive Order (E.O.) 12866.
This final rule does not contain
policies with Federalism or ‘‘takings’’
implications as those terms are defined
in E.O. 13132 and E.O. 12630,
respectively.
The Assistant Administrator for
Fisheries finds good cause to waive the
notice and comment provisions in 5
U.S.C. 553(b)(B) for the status
determination criteria for white hake
because it is impracticable and contrary
to the public interest. As discussed
more fully in Item 7 of the preamble, the
purpose of implementing the revised
status determination criteria for white
hake make solicitation of public
comment contrary to the public interest.
The results of the February 2013
benchmark assessment for white hake
are a change from the previous
assessment and indicate that the stock is
no longer overfished or undergoing
overfishing. These criteria represent the
best scientific information available and
support an increase to the FY 2013 ABC
and ACL for this stock. Implementing
revised status determination criteria
through this final rule is necessary in
order to incorporate the best scientific
information available into the FMP and
to allow NMFS potentially to take
separate action to implement an
appropriate ABC and ACL for white
hake in FY 2013. This could result in
the benefit of revenues associated with
a higher white hake catch limit in FY
2013, including increased landings of
white hake and other groundfish species
caught with it. Because a sector vessel
must stop fishing in a stock area once
its sector has reached its allocation for
that particular stock, additional
allocation of white hake extends the
fishing season for sector vessels in the
white hake stock area, including for
other species. This is particularly true
for unit stocks like white hake, for
which the stock area encompasses the
entire region. Additional white hake
quota could also extend the fishing
season for common pool vessels, which
have a sub-ACL for this stock.
This action could not allow for prior
public comment because the scientific
review process and determination could
not have been completed any earlier due
to the inherent time constraints
associated with such process. The
benchmark assessment for white hake
was completed in February 2013, but a
summary report documenting the
assessment results was not released
until April 2, 2013, after publication of
the Framework 48 proposed rule.
However, because the Council included
and recommended an alternative in
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Framework 48 to implement the revised
status determination criteria in FY 2013,
should it become available in time for
rulemaking, NMFS is approving the
revised status determination criteria
through this final rule. The time
necessary to provide for prior notice and
opportunity for public comment would
delay the incorporation of the best
scientific information available into the
FMP for management. It would also
extend the time necessary to develop an
action to implement a revised quota for
this stock for FY 2013, should NMFS
decide to do so. In the interest of
receiving public input on this action,
NMFS is publishing the revised status
determination criteria as an interim
final measure and is requesting public
comments on it in this rule.
The Assistant Administrator for
Fisheries finds that the need to
implement these measures in a timely
manner to incorporate the best scientific
information available to establish
appropriate quotas to prevent
overfishing in FY 2013, constitutes good
cause under authority contained in 5
U.S.C. 553(d)(3), to waive the 30-day
delay in effective date. This action
incorporates the best scientific
information available from recent stocks
assessments into the FMP to allow
Framework 50, a parallel action, to
specify appropriate catch limits to
prevent overfishing and achieve
optimum yield. There is a need to
implement this action in timely manner,
because the 2013 fishing year begins on
May 1, 2013. Without this action,
appropriate quotas based on the best
available science would not be set, and
virtually the entire groundfish fishery
would not receive allocations of
groundfish stocks to begin fishing,
which would have significant negative
economic impacts on fishery
participants and the communities that
depend on them. In addition, there were
unavoidable time constraints outside
the agency’s control, because the
Council took final action and submitted
Framework 48 much later than
originally scheduled. As a result, review
of the framework, and the entire
rulemaking process was delayed.
A Final Regulatory Flexibility
Analysis (FRFA) was prepared pursuant
to 5 U.S.C. 604(a), and incorporates the
IRFA, a summary of the significant
issues raised by the public comments in
response to the IRFA, NMFS’s responses
to those comments, and a summary of
the analyses completed to support the
action. A copy of the EA/RIR/IRFA is
available from the both the Council and
NMFS (see ADDRESSES).
The preamble to the proposed rule
included a detailed summary of the
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analyses contained in the IRFA, and that
discussion is not repeated here.
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this
action is being taken, and the objectives
of and legal basis for this final rule, is
contained in the preambles to the
proposed rule and this final rule and is
not repeated here.
Summary of Significant Issues Raised in
Public Comments
NMFS’s response to all comments
received on the proposed rule,
including those that raised significant
issues or commented on the economic
analyses summarized in the IRFA can be
found in the ‘‘Comments and
Responses’’ section of this rule. As
outlined in that section, significant
issues were raised by the public with
respect to:
• The procedural-type change
allowing sectors to request access to
year-round closed areas;
• Reactive AMs for non-allocated
stocks;
• Modifications to sector at-sea
monitoring requirements;
• Reduction in minimum fish sizes,
and;
• Sub-ACLs for GB yellowtail
flounder and SNE/MA windowpane
flounder for the scallop fishery.
Detailed responses are provided to the
specific significant issues raised by the
public comment and are not repeated
here. The proposed change to GB
discard strata was disapproved as a
result of the public comments received.
No other changes to the proposed rule
measures were necessary as a result of
public comments.
Description and Estimate of Number of
Small Entities To Which the Rule Will
Apply
The information analyzed in the RFA
analysis indicated for 2011, the most
recent complete year of data available,
there were 1,370 distinct ownership
entities identified. Of these, 1,312 are
categorized as small and 58 are large
entities as per SBA guidelines. As stated
in the IRFA, a definition of dependence
was also used to examine potential
impact of this rule on small entities.
Dependence was defined as entities
deriving greater than 50 percent of gross
sales from sales of either regulated
groundfish or from scallops. This
definition was used to identify those
ownership groups most likely to be
impacted by the proposed regulations.
Using this threshold, 135 entities are
groundfish-dependent, with 131 small
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and 4 large. Forty-seven entities are
scallop-dependent, with 39 small and 8
large.
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Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
This final rule contains a revision to
collection-of-information requirement
subject to the Paperwork Reduction Act
(PRA) and which has been approved by
the Office of Management and Budget
(OMB) under control number 0648–
0605 (Amendment 16 reporting
requirements). Framework 48 adjusts
the sector at-sea monitoring pre-trip
notification and NEFOP notification
implemented through Amendment 16,
by adding a question to allow fishermen
to indicate what fishery they intend to
participate in. This change is necessary
to identify monkfish trips in Southern
New England that may qualify for the
exemption from sector at-sea monitoring
coverage, in order to deploy at-sea
monitors appropriately to achieve the
coverage levels required by the FMP.
Currently, all groundfish vessels make
these notifications to the NEFOP
through the PTNS via an online form, a
telephone call, or email to NEFOP.
When sector at-sea monitoring programs
become established, the pre-trip
notification may be made to NEFOP or
other at-sea monitoring provider, via a
telephone call or email or through a
secure database. Public reporting
burden for the Amendment 16 reporting
requirements is estimated to average
two minutes per individual response for
sector at-sea monitoring pre-trip
notification and NEFOP notification,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Framework 48 only adds a question to
these notifications and would not affect
the number of entities required to
comply with these notifications
(approximately 900 permits enrolled in
sectors and 1482 limited access NE
multispecies permits). The revision to
these requirements is not expected to
change this burden estimate.
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.
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Description of the Steps Taken To
Minimize Economic Impact on Small
Entities
Introduction. The Regulatory
Flexibility Act (RFA) analysis is
required to evaluate the impact of
Federal proposed and final rules on
small business entities. Federal agencies
are required in this analysis to identify
reasonable alternatives that may
mitigate impacts on small business
entities. The RFA does not compel
specific regulatory outcomes. Moreover,
the RFA does not require agencies to
consider or adopt alternatives that are
inconsistent with law or outside the
scope and purpose of the regulations.
NMFS’s ability to minimize economic
impacts is constrained, in part, by
recommendations of the Council. NMFS
has only the ability to approve, partially
approve, or disapprove Councilrecommended measures. The Agency
cannot revise or substitute Councilrecommended measures in the
framework review and implementation
process. This limits the range of
alternatives that can be considered in
Framework 48 to the suite of preferred
and non-preferred alternatives
forwarded by the Council. NMFS does
have the ability through independent
rulemaking under specifically defined
Magnuson-Stevens Act criteria to
implement alternative measures that
respond to emergencies or end
overfishing. In situations where Council
recommendations are determined
consistent with the Magnuson-Stevens
Act and other applicable law, NMFS is
obligated to implement the measures in
question.
Framework 48 measures. NMFS is
disapproving the provision to eliminate
trawl gear stowage requirements as
recommended by the Council along
with measures pertaining to at-sea
monitoring industry cost sharing, at-sea
monitoring cost responsibility of
sectors, and discard rate strata for GB
yellowtail flounder. The rationale for
disapproving these Councilrecommended Framework 48 measures
is outlined in detail in the preamble and
not repeated here. For all other
Framework 48 measures described in
the preamble, NMFS has determined the
Council recommendations are
consistent with applicable requirements
of the Magnuson-Stevens Act and other
law. As a result, NMFS is implementing
the measures, as proposed by the
Council, and the available mitigation is
limited as a result.
The approved measures change status
determination criteria, modify
management measures for at-sea
monitoring, allow exemption requests
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from sectors to year-round closures,
change minimum size restrictions for
allocated fish, and modify some AMs.
The IRFA concluded the Framework 48
alternatives have the potential to impact
a large number of small entities, and
while some of the options may
significantly alter profitability, none of
them would have a disproportionate
impact on small entities.
The new status determination criteria
impacts the catch limits set for each
species. In situations where the revised
status determination criteria result in
much lower catch limits than under the
no action alternative considered in the
IRFA, then the measures implemented
by this rule would reduce fishing
revenues. NMFS is required by the
Magnuson-Stevens Act National
Standard 2 to use the best available
scientific information in setting catch
limits. The new stock status
determination criteria implemented by
NMFS have been certified as the best
available scientific information by the
NEFSC. The no action alternative is
inconsistent with the Magnuson-Stevens
Act because it would continue to use
outdated stock assessment data that is
not the best available scientific
information and; therefore, it cannot be
implemented.
Establishing sub-ACLs for SNE/MA
windowpane flounder and for GB
yellowtail flounder impacts both the
groundfish and scallop fisheries by
shifting accountability for overages or
changing the method of sub-ACL
calculation. SNE/MA windowpane subACLs for the scallop and other subcomponents fisheries can reduce the
likelihood of an overage and
overfishing. Avoiding overages and
overfishing may, in turn, lower
operating costs and result in higher
future revenues. If sub-ACLs are set
below average yearly landings for a
given fishery, and if AMs are severely
restrictive, the impacted vessels could
experience a substantial reduction in
their profitability.
The modifications to the scallop
fishery GB yellowtail flounder sub-ACL
would use a fixed percentage to
determine the scallop fishery allocation
of the GB yellowtail flounder—40
percent in FY 2013 and 16 percent in
each subsequent year. The economic
impacts to fishing businesses will
depend on the overall GB yellowtail
flounder ABC and the probability of an
overage, both of which are currently
unquantifiable. The 16-percent fixed
rate may be prohibitive to maximizing
the value from scallop landings. In the
worst-case scenario, if an overage
occurred that closed a valuable access
area to the scallop fishery, the scallop
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industry could suffer a $16.9 million
dollar loss in economic benefits. A nonpreferred alternative was considered by
the Council to use a set 90-percent of
estimated scallop catch as the
determinant of the scallop sub-ACL.
Since the allocation method of the 90
percent alternative does not adjust for
changes in the ABC, it could lead to a
very low groundfish fishery sub-ACL for
GB yellowtail flounder but mitigate
potential impact to the scallop fishery.
The measure to establish a small-mesh
fishery sub-ACL for GB yellowtail
flounder would use a fixed percentage,
based on previous catch history, to set
the allocation. This measure is expected
to have similar impacts and unknowns
as the other sub-ACLs, but with respect
to the small-mesh groundfish vessels.
The sub-ACL modifications
implemented by this rule provide
overall benefit to the nation in terms of
the broader concept of optimum yield
and further ensure the likelihood of
overfishing is prevented. The nonpreferred GB yellowtail flounder scallop
sub-ACL determinant or not establishing
additional sub-ACLs would not be
consistent with National Standards 1, 4,
5, or 8 and the goals and objectives of
the FMP. As such, these non-preferred
approaches that may mitigate impacts to
the scallop, small-mesh, and MidAtlantic fisheries were not favored by
the Council and not approved by NMFS.
Modifying the groundfish sector
monitoring requirements would impact
all sector vessels. The removal of
dockside monitoring implemented in
this rule for FY 2013 has a positive
economic impact by lowering operating
costs and increasing probability. As
such, it provides the maximum
economic impact mitigation in
comparison to the alternative that
would require industry funded dockside
monitoring to be in place for FY 2013
and beyond. The disapproved costsharing provision was intended to
reduce the overall cost of at-sea
monitoring paid for by the industry and
would have provided similar positive
impacts by lowering costs and
increasing profits; however, the measure
as recommended by the Council was not
consistent with anti-deficiency and
other Federal laws and policies and
could not be implemented by NMFS.
Similarly, eliminating the industry’s
responsibility to pay for at-sea
monitoring would have positive
economic impacts. This alternative
would not ensure that coverage levels
are sufficient to monitor sector
allocations and satisfy the Amendment
16 monitoring requirements and, as a
result, could not be approved. NMFS
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has committed to fully funding the
required at-sea monitoring cost for FY
2013. This will provide a 1-year shortterm relief to sector vessels until FY
2014. Had this funding not been made
available, industry would have been
required to fully fund at-sea monitoring
in FY 2013 at a substantial economic
impact. As modified by Amendment 16,
the FMP requires industry to fully fund
at-sea monitoring; however, NMFS has
provided this funding each fishing year
since 2010.
Modifying the minimum size limits
for commercially allocated groundfish
species would be expected to positively
impact sector vessels. The lower
minimum size restrictions will allow a
portion of previously wasted regulated
discards to become landings. This is
expected to provide a positive economic
impact on net trip revenues, as more
fish will be landed for the same amount
of expended quota as under the no
action alternative. Under the fullretention alternative, there could have
been unforeseen consequences from
targeting smaller fish that could have
long-term negative impacts on future
landings and revenue. This could also
occur under the changed minimum fish
sizes. Maintaining minimum mesh sizes
may help to mitigate some of this effect.
Based on public comment received,
the modification of sector discard strata
for GB yellowtail flounder in Federal
statistical area 522 was not approved in
this rule. This had the potential for
positive impacts on revenue for large
trawl vessels that predominantly fish
this area.
The measure to modify AM timing for
stocks not allocated to sectors is
expected to help prevent overfishing.
Controlling overfishing ensures longterm positive impacts. Under this
provision, AMs would not be
implemented mid-season, which will be
beneficial to business planning. There
is, however, the potential for short-term
decreases in revenue based on
implementation of AMs as catches may
be reduced in the year AMs are enacted.
The ability to implement AMs as soon
as possible to correct the operational
issue that caused the ACL overage,
consistent with the National Standard 1
Guideline recommendations, is
constrained in this case by the timing of
data availability. The approach
implemented by this rule provides a
balance of ensuring AMs are enacted on
the best available information in as
timely a manner as possible. In that
regard, little else could be done with
respect to AM timing that remains
consistent with National Standard 1.
Framework 48 would also create area–
based AMs for Atlantic halibut, Atlantic
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26153
wolffish, and SNE/MA winter flounder.
In the event these AMs are triggered,
trawl vessels would be forced to use
selective gears within designated
closure areas and fixed-gear vessels
would be forced to cease fishing entirely
inside designated closure areas. If
triggered, these areas could have
economic impacts in the $4 million to
$5 million dollars for trawl vessels, and
around $1 million for fixed-gear vessels,
based on FY 2010 information. These
AMs were nondiscretionary as they
were required by a remand from Federal
appellate court.
The measures to revise the
recreational AM and to allow sectors to
request year-round closed area
exemptions has no immediate direct
economic impact, because these
measures only confer authority on the
Regional Administrator to take action at
a later date. Subsequent actions to
implement specific adjustments to
recreational measures or to consider
sector exemption requests will fully
analyze potential economic impacts to
small entities, consistent with RFA
requirements.
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 small entity
compliance guide will be sent to all
holders of Federal permits issued for the
NE multispecies fishery. In addition,
copies of this final rule and guide (i.e.,
information bulletin) are available from
NMFS (see ADDRESSES) and at the
following Web site: http://
www.nero.noaa.gov/.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and
recordkeeping requirements.
Dated: April 29, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
performing the functions and duties of the
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:
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§ 648.10 VMS and DAS requirements for
vessel owners/operators.
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 § 648.4, revise paragraph (a)(1)(ii)
to read as follows:
■
§ 648.4
Vessel permits.
(a) * * *
(1) * * *
(ii) Open access permits. A vessel of
the United States that has not been
issued and is not eligible to be issued a
limited access multispecies permit is
eligible for and may be issued an ‘‘open
access multispecies’’, ‘‘handgear’’, or
‘‘charter/party’’ permit, and may fish
for, possess on board, and land
multispecies finfish subject to the
restrictions in § 648.88. A vessel that
has been issued a valid limited access
scallop permit, but that has not been
issued a limited access multispecies
permit, is eligible for and may be issued
an open access scallop multispecies
possession limit permit and may fish
for, possess on board, and land
multispecies finfish subject to the
restrictions in § 648.88. The owner of a
vessel issued an open access permit may
request a different open access permit
category by submitting an application to
the Regional Administrator at any time.
*
*
*
*
*
2. In § 648.7, remove and reserve
paragraph (a)(4), revise paragraph (e)(3),
and remove paragraph (h) and
redesignate paragraph (i) as paragraph
(h).
The revision reads as follows:
■
§ 648.7 Recordkeeping and reporting
requirements.
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*
*
*
*
*
(e) * * *
(3) At-sea monitor reports. Any
record, as defined in § 648.2, related to
fish observed by an at-sea monitor,
including any reports provided to
NMFS, sector managers, or another
third-party service provider specified in
paragraph (h) of this section, must be
retained and made available for
immediate review for a total of 3 years
after the date the fish were first
observed. At-sea monitor providers
must retain the required records and
reports at their principal place of
business.
*
*
*
*
*
3. In § 648.10, revise paragraph
(k)(1)(iii) and add paragraph (k)(1)(iv) to
read as follows:
■
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*
*
*
*
(k) * * *
(1) * * *
(iii) Trip-start hail report. If instructed
by the Regional Administrator or
required by a sector operations plan
approved pursuant to § 648.87(b)(2) and
(c), the operator of a vessel must submit
a trip-start hail report prior to departing
port at the beginning of each trip
notifying the sector manager and/or
NMFS of the vessel permit number; trip
ID number in the form of the VTR serial
number of the first VTR page for that
trip, or another trip identifier specified
by NMFS; an estimate of the date and
time of arrival to port; and any other
information as instructed by the
Regional Administrator. Trip-start hail
reports by vessels operating less than 6
hr or within 6 hr of port must also
include estimated date and time of
offload. The trip-start hail report may be
submitted via VMS or some other
method, as instructed by the Regional
Administrator or required by a sector
operations plan approved pursuant to
§ 648.87(b)(2) and (c). If the vessel
operator does not receive confirmation
of the receipt of the trip-start hail report
from the sector manager or NMFS, the
operator must contact the intended
receiver to confirm the trip-start hail
report via an independent back-up
system, as instructed by the Regional
Administrator. To the extent possible,
NMFS shall reduce unnecessary
duplication of the trip-start hail report
with any other applicable reporting
requirements..
(iv) Trip-end hail report. Upon its
return to port and prior to crossing the
VMS demarcation line as defined in
§ 648.10, the owner or operator of any
vessel issued a limited access NE
multispecies permit that is subject to the
VMS requirements specified in
paragraph (b)(4) of this section must
submit a trip-end hail report to NMFS
via VMS, as instructed by the Regional
Administrator. The trip-end hail report
must include at least the following
information, as instructed by the
Regional Administrator: The vessel
permit number; VTR serial number, or
other applicable trip ID specified by
NMFS; intended offloading location(s),
including the dealer name/offload
location, port/harbor, and state for the
first dealer/facility where the vessel
intends to offload catch and the port/
harbor, and state for the second dealer/
facility where the vessel intends to
offload catch; estimated date/time of
arrival; estimated date/time of offload;
and the estimated total amount of all
species retained, including species
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Fmt 4701
Sfmt 4700
managed by other FMPs (in pounds,
landed weight), on board at the time the
vessel first offloads its catch from a
particular trip. The trip-end hail report
must be submitted at least 6 hr in
advance of landing for all trips of at
least 6 hr in duration or occurring more
than 6 hr from port. For shorter trips,
the trip-end hail reports must be
submitted upon the completion of the
last tow or hauling of gear, as instructed
by the Regional Administrator. To the
extent possible, NMFS shall reduce
unnecessary duplication of the trip-end
hail reports with any other applicable
reporting requirements.
*
*
*
*
*
■ 4. In § 648.11, revise paragraphs (k)(1)
and (2) and add paragraph (l) to read as
follows:
§ 648.11 At-sea sampler/observer
coverage.
*
*
*
*
*
(k) * * *
(1) Pre-trip notification. Unless
otherwise specified in this paragraph
(k), or notified by the Regional
Administrator, the owner, operator, or
manager of a vessel (i.e., vessel manager
or sector manager) issued a limited
access NE multispecies permit that is
fishing under a NE multispecies DAS or
on a sector trip, as defined in this part,
must provide advanced notice to NMFS
of the vessel name, permit number, and
sector to which the vessel belongs, if
applicable; contact name and telephone
number for coordination of observer
deployment; date, time, and port of
departure; and the vessel’s trip plan,
including area to be fished, whether a
monkfish DAS will be used, and gear
type to be used at least 48 hr prior to
departing port on any trip declared into
the NE multispecies fishery pursuant to
§ 648.10 or § 648.85, as instructed by the
Regional Administrator, for the
purposes of selecting vessels for
observer deployment. For trips lasting
48 hr or less in duration from the time
the vessel leaves port to begin a fishing
trip until the time the vessel returns to
port upon the completion of the fishing
trip, the vessel owner, operator, or
manager may make a weekly
notification rather than trip-by-trip
calls. For weekly notifications, a vessel
must notify NMFS by 0001 hr of the
Friday preceding the week (Sunday
through Saturday) that it intends to
complete at least one NE multispecies
DAS or sector trip during the following
week and provide the date, time, port of
departure, area to be fished, whether a
monkfish DAS will be used, and gear
type to be used for each trip during that
week. Trip notification calls must be
made no more than 10 days in advance
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of each fishing trip. The vessel owner,
operator, or manager must notify NMFS
of any trip plan changes at least 24 hr
prior to vessel departure from port. A
vessel may not begin the trip without
being issued an observer notification or
a waiver by NMFS.
(2) Vessel selection for observer
coverage. NMFS shall notify the vessel
owner, operator, or manager whether
the vessel must carry an observer, or if
a waiver has been granted, for the
specified trip within 24 hr of the vessel
owner’s, operator’s or manager’s
notification of the prospective trip, as
specified in paragraph (k)(1) of this
section. All trip notifications shall be
issued a unique confirmation number. A
vessel may not fish on a NE
multispecies DAS or sector trip with an
observer waiver confirmation number
that does not match the trip plan that
was called in to NMFS. Confirmation
numbers for trip notification calls are
valid for 48 hr from the intended sail
date. If a trip is interrupted and returns
to port due to bad weather or other
circumstance beyond the operator’s
control, and goes back out within 48 hr,
the same confirmation number and
observer status remains. If the layover
time is greater than 48 hr, a new trip
notification must be made by the
operator, owner, or manager of the
vessel.
(l) NE multispecies monitoring
program goals and objectives.
Monitoring programs established for the
NE multispecies are to be designed and
evaluated consistent with the following
goals and objectives:
(1) Improve documentation of catch:
(i) Determine total catch and effort, for
each sector and common pool, of target
or regulated species; and
(ii) Achieve coverage level sufficient
to minimize effects of potential
monitoring bias to the extent possible
while maintaining as much flexibility as
possible to enhance fleet viability.
(2) Reduce the cost of monitoring:
(i) Streamline data management and
eliminate redundancy;
(ii) Explore options for cost-sharing
and deferment of cost to industry; and
(iii) Recognize opportunity costs of
insufficient monitoring.
(3) Incentivize reducing discards:
(i) Determine discard rate by smallest
possible strata while maintaining costeffectiveness; and
(ii) Collect information by gear type to
accurately calculate discard rates.
(4) Provide additional data streams for
stock assessments:
(i) Reduce management and/or
biological uncertainty; and
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14:55 May 02, 2013
Jkt 229001
(ii) Perform biological sampling if it
may be used to enhance accuracy of
mortality or recruitment calculations.
(5) Enhance safety of monitoring
program.
(6) Perform periodic review of
monitoring program for effectiveness.
5. In § 648.14:
a. Revise paragraph (e)(1);
b. Remove paragraph (k)(14)(x);
c. Redesignate paragraphs (k)(14)(xi)
and (xii) as paragraphs (k)(14)(x) and
(xi), respectively, and revise them;
■ d. Remove and reserve paragraphs
(k)(18)(i)(B) through (D); and
■ e. Revise paragraphs (k)(19)
introductory text, (k)(19)(i), and (k)(20).
The revisions read as follows:
■
■
■
■
§ 648.14
Prohibitions.
*
*
*
*
*
(e) * * *
(1) Assault, resist, oppose, impede,
harass, intimidate, or interfere with or
bar by command, impediment, threat, or
coercion any NMFS-approved observer
or sea sampler conducting his or her
duties; any authorized officer
conducting any search, inspection,
investigation, or seizure in connection
with enforcement of this part; any
official designee of the Regional
Administrator conducting his or her
duties, including those duties
authorized in § 648.7(g).
*
*
*
*
*
(k) * * *
(14) * * *
(x) Leave port to begin a trip before an
at-sea monitor has arrived and boarded
the vessel or before electronic
monitoring equipment has been
properly installed if assigned to carry
either an at-sea monitor or electronic
monitoring equipment for that trip, as
prohibited by § 648.87(b)(5)(iii)(A).
(xi) Leave port to begin a trip if a
vessel has failed a review of safety
issues by an at-sea monitor and has not
successfully resolved any identified
safety deficiencies, as prohibited by
§ 648.87(b)(5)(iv)(A).
*
*
*
*
*
(19) At-sea/electronic monitoring
service providers. It is unlawful for any
at-sea/electronic monitoring service
provider, including individual at-sea
monitors, to do any of the following:
(i) Fail to comply with the operational
requirements, including the
recordkeeping and reporting
requirements, specified in
§ 648.87(b)(5).
*
*
*
*
*
(20) AMs for both stocks of
windowpane flounder, ocean pout,
Atlantic halibut, Atlantic wolffish, and
SNE/MA winter flounder. It is unlawful
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26155
for any person, including any owner or
operator of a vessel issued a valid
Federal NE multispecies permit or letter
under § 648.4(a)(1)(i), unless otherwise
specified in § 648.17, to fail to comply
with the restrictions on fishing and gear
specified in § 648.90(a)(5)(i)(D).
*
*
*
*
*
■ 6. In § 648.80, revise paragraph
(a)(3)(vii) to read as follows:
§ 648.80 NE Multispecies regulated mesh
areas and restrictions on gear and methods
of fishing.
*
*
*
*
*
(a) * * *
(3) * * *
(vii) Rockhopper and roller gear
restrictions. For all trawl vessels fishing
on a NE multispecies DAS or sector trip
in the GOM/GB Inshore Restricted
Roller Gear Area, the diameter of any
part of the trawl footrope, including
discs, rollers, or rockhoppers, must not
exceed 12 inches (30.5 cm). The GOM/
GB Inshore Restricted Roller Gear Area
is defined by straight lines connecting
the following points in the order stated:
INSHORE RESTRICTED ROLLER GEAR
AREA
Point
1
2
3
4
5
6
7
8
N. Latitude
................
................
................
................
................
................
................
................
42°00′
42°00′
42°00′
42°00′
43°00′
43°00′
43°30′
43°30′
W. Longitude
(1)
(2)
(3)
69°50′
69°50′
70°00′
70°00′
(4)
1 Massachusetts
shoreline.
Cod shoreline on Cape Cod Bay.
Cod shoreline on the Atlantic Ocean.
4 Maine shoreline.
2 Cape
3 Cape
*
*
*
*
*
7. In § 648.82:
a. Revise paragraphs (k)(2)(i), (n)(1)
introductory text, (n)(2)(ii) introductory
text, (n)(2)(ii)(A) and (B), (n)(2)(ii)(H)
through (J), and (n)(2)(ii)(M);
■ b. Remove and reserve paragraph
(n)(2)(iv); and
■ c. Revise paragraph (n)(2)(vi).
The revisions read as follows:
■
■
§ 648.82 Effort-control program for NE
multispecies limited access vessels.
*
*
*
*
*
(k) * * *
(2) * * *
(i) A vessel issued a valid limited
access NE multispecies permit is
eligible to lease Category A DAS to or
from another such vessel, subject to the
conditions and requirements of this
part, unless the vessel was issued a
valid Small Vessel or Handgear A
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permit specified under paragraphs (b)(5)
and (6) of this section, respectively.
*
*
*
*
*
(n) * * *
(1) Differential DAS counting AM for
fishing years 2010 and 2011. Unless
otherwise specified pursuant to
§ 648.90(a)(5), based upon catch and
other information available to NMFS by
February of each year, the Regional
Administrator shall project the catch of
regulated species or ocean pout by
common pool vessels for the fishing
year ending on April 30 to determine
whether such catch will exceed any of
the sub-ACLs specified for common
pool vessels pursuant to
§ 648.90(a)(4)(iii). This initial projection
of common pool catch shall be updated
shortly after the end of each fishing
year, once information becomes
available regarding the catch of
regulated species and ocean pout by
vessels fishing for groundfish in state
waters outside of the FMP, vessels
fishing in exempted fisheries, and
vessels fishing in the Atlantic sea
scallop fishery; and the catch of Atlantic
halibut, SNE/MA winter flounder, ocean
pout, windowpane flounder, and
Atlantic wolffish by sector vessels to
determine if excessive catch by such
vessels resulted in the overall ACL for
a particular stock to be exceeded. If such
catch resulted in the overall ACL for a
particular stock being exceeded, the
common pool’s catch of that stock shall
be increased by an amount equal to the
amount of the overage of the overall
ACL for that stock multiplied by the
common pool’s share of the overall ACL
for that stock calculated pursuant to
§ 648.90(a)(4)(iii)(H)(2). For example, if
the 2010 overall ACL for GOM cod was
exceeded by 10,000 lb (4,536 kg) due to
excessive catch of that stock by vessels
fishing in state waters outside the FMP,
and the common pool’s share of the
2010 overall GOM cod ACL was 5
percent, then the common pool’s 2010
catch of GOM cod shall be increased by
500 lb (226.8 kg) (10,000 lb (4,536 kg)
× 0.05 of the overall GOM cod ACL). If,
based on the initial projection
completed in February, the Regional
Administrator projects that any of the
sub-ACLs specified for common pool
vessels will be exceeded or
underharvested, the Regional
Administrator shall implement a
differential DAS counting factor to all
Category A DAS used within the stock
area in which the sub-ACL was
exceeded or underharvested, as
specified in paragraph (n)(1)(i) of this
section, during the following fishing
year, in a manner consistent with the
Administrative Procedure Act. Any
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14:55 May 02, 2013
Jkt 229001
differential DAS counting implemented
at the start of the fishing year will be
reevaluated and recalculated, if
necessary, once updated information is
obtained. The differential DAS counting
factor shall be based upon the projected
proportion of the sub-ACL of each NE
multispecies stock caught by common
pool vessels, rounded to the nearest
even tenth, as specified in paragraph
(n)(1)(ii) of this section, unless
otherwise specified pursuant to
§ 648.90(a)(5). For example, if the
Regional Administrator projects that
common pool vessels will catch 1.18
times the sub-ACL for GOM cod during
fishing year 2010, the Regional
Administrator shall implement a
differential DAS counting factor of 1.2
to all Category A DAS used by common
pool vessels only within the Inshore
GOM Differential DAS Area during
fishing year 2011 (i.e., Category A DAS
will be charged at a rate of 28.8 hr for
every 24 hr fished—1.2 times 24-hr DAS
counting). If it is projected that catch in
a particular fishing year will exceed or
underharvest the sub-ACLs for several
regulated species stocks within a
particular stock area, including both
exceeding and underharvesting several
sub-ACLs within a particular stock area,
the Regional Administrator shall
implement the most restrictive
differential DAS counting factor derived
from paragraph (n)(1)(ii) of this section
for the sub-ACLs exceeded or
underharvested to any Category A DAS
used by common pool vessels within
that particular stock area. For example,
if it is projected that common pool
vessels will be responsible for 1.2 times
the GOM cod sub-ACL and 1.1 times the
CC/GOM yellowtail flounder sub-ACL,
the Regional Administrator shall
implement a differential DAS counting
factor of 1.2 to any Category A DAS
fished by common pool vessels only
within the Inshore GOM Differential
DAS Area during the following fishing
year. For any differential DAS counting
factor implemented in fishing year 2011,
the differential DAS counting factor
shall be applied against the DAS accrual
provisions specified in paragraph
(e)(1)(i) of this section for the time spent
fishing in the applicable differential
DAS counting area based upon the first
VMS position into the applicable
differential DAS counting area and the
first VMS position outside of the
applicable differential DAS counting
area, pursuant to § 648.10. For example,
if a vessel fished 12 hr inside a
differential DAS counting area where a
differential DAS counting factor of 1.2
would be applied, and 12 hr outside of
the differential DAS counting area, the
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Fmt 4701
Sfmt 4700
vessel would be charged 48 hr of DAS
use because DAS would be charged in
24-hr increments ((12 hr inside the area
× 1.2 = 14.4 hr) + 12 hr outside the area,
rounded up to the next 24-hr increment
to determine DAS charged). For any
differential DAS counting factor
implemented in fishing year 2012, the
differential DAS counting factor shall be
applied against the DAS accrual
provisions in paragraph (e)(1)(i) of this
section, or if a differential DAS counting
factor was implemented for that stock
area during fishing year 2011, against
the DAS accrual rate applied in fishing
year 2011. For example, if a differential
DAS counting factor of 1.2 was applied
to the Inshore GOM Differential DAS
Area during fishing year 2011 due to a
20-percent overage of the GOM cod subACL, yet the GOM cod sub-ACL was
exceeded again, but by 50 percent
during fishing year 2011, an additional
differential DAS factor of 1.5 would be
applied to the DAS accrual rate applied
during fishing year 2012 (i.e., the DAS
accrual rate in the Inshore GOM
Differential DAS Counting Area during
fishing year 2012 would be 43.2 hr
charged for every 24-hr fished—1.2 × 1.5
× 24-hr DAS charge). If the Regional
Administrator determines that similar
DAS adjustments are necessary in all
stock areas, the Regional Administrator
will adjust the ratio of Category
A:Category B DAS specified in
paragraph (d)(1) of this section to reduce
the number of available Category A DAS
available based upon the amount of the
overage, rather than apply a differential
DAS counting factor to all Category A
DAS used in all stock areas.
*
*
*
*
*
(2) * * *
(ii) Stock area closures. Unless
otherwise specified in this paragraph
(n)(2)(ii), if the Regional Administrator
projects that 90 percent of the trimester
TACs specified in paragraph (n)(2)(i) of
this section will be caught based upon
available information, the Regional
Administrator shall close the area where
90 percent of the catch for each such
stock occurred to all common pool
vessels on a NE multispecies DAS using
gear capable of catching such stocks for
the remainder of that trimester, as
specified in paragraphs (n)(2)(ii)(A)
through (N) of this section, in a manner
consistent with the Administrative
Procedure Act. For example, if the
Regional Administrator projects that 90
percent of the CC/GOM yellowtail
flounder Trimester 1 TAC will be
caught, common pool vessels using
trawl and gillnet gear shall be
prohibited from fishing in the CC/GOM
Yellowtail Flounder Closure Area
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specified in paragraph (n)(2)(ii)(G) of
this section until the beginning of
Trimester 2 on September 1 of that
fishing year. Based upon all available
information, the Regional Administrator
is authorized to expand or narrow the
areas closed under this paragraph
(n)(2)(ii) in a manner consistent with the
Administrative Procedure Act. If it is
not possible to identify an area where
only 90 percent of the catch occurred,
the Regional Administrator shall close
the smallest area possible where greater
than 90 percent of the catch occurred.
Common pool vessels holding either a
Handgear A or B permit and fishing
with handgear or tub trawls are exempt
from stock area closures for white hake.
The Regional Administrator may
exempt Handgear A and B permitted
vessels from stock area closures for
other stocks pursuant to this paragraph
(n)(2)(ii) if it is determined that catches
of the respective species or stock by
these vessels are less than 1 percent of
the common pool catch of that species
or stock. The Regional Administrator
shall make such determination prior to
the start of the fishing year through a
notice published in the Federal
Register, consistent with the
Administrative Procedure Act, and any
such determination shall remain in
effect until modified.
(A) GB Cod Trimester TAC Area. For
the purposes of the trimester TAC AM
closure specified in paragraph (n)(2)(ii)
of this section, the GB Cod Trimester
TAC Area shall apply to common pool
vessels using trawl gear, sink gillnet
gear, and longline/hook gear within the
area bounded by straight lines
connecting the following points in the
order stated:
GB COD TRIMESTER TAC AREA
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Point
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
13 ........
14 ........
15 ........
16 ........
17 ........
18 ........
19 ........
20 ........
21 ........
22 ........
N. Latitude
42°
42°
41°
41°
41°
41°
41°
41°
40°
40°
40°
40°
39°
39°
41°
41°
41°
41°
41°
41°
(3)
(4)
VerDate Mar<15>2010
20′
20′
50′
50′
10′
10′
00′
00′
50′
50′
40′
40′
50′
50′
00′
00′
10′
10′
20′
20′
W. Longitude
70°
(1)
(1)
67°
67°
67°
67°
67°
67°
66°
66°
66°
66°
68°
68°
69°
69°
69°
69°
(2)
70°
70°
14:55 May 02, 2013
00′
40′
40′
10′
10′
00′
00′
50′
50′
40′
40′
50′
50′
30′
30′
50′
50′
00′
00′
Jkt 229001
GB COD TRIMESTER TAC AREA—
Continued
Point
23 ........
N. Latitude
(5 )
W. Longitude
70° 00′
1 U.S./Canada
maritime boundary.
shoreline of Nantucket, MA.
shoreline of Nantucket, MA.
4 South-facing shoreline of Cape Cod, MA.
5 North-facing shoreline of Cape Cod, MA.
2 East-facing
3 North-facing
(B) GOM Cod Trimester TAC Area.
For the purposes of the trimester TAC
AM closure specified in paragraph
(n)(2)(ii) of this section, the GOM Cod
Trimester TAC Area shall apply to
common pool vessels using trawl gear,
sink gillnet gear, and longline/hook gear
within the area bounded on the south,
west, and north by the shoreline of the
United States and bounded on the east
by straight lines connecting the
following points in the order stated:
GOM COD TRIMESTER TAC AREA
Point
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
N. Latitude
(1 )
43°
43°
43°
43°
43°
43°
42°
42°
42°
42°
(2 )
40′
40′
10′
10′
00′
00′
50′
50′
20′
20′
1 Intersection
2 North-facing
W. Longitude
69°
69°
69°
69°
69°
69°
69°
69°
69°
69°
70°
70°
20′
20′
00′
00′
10′
10′
20′
20′
40′
40′
00′
00′
with ME shoreline.
shoreline of Cape Cod, MA.
*
*
*
*
*
(H) American Plaice Trimester TAC
Area. For the purposes of the trimester
TAC AM closure specified in paragraph
(n)(2)(ii) of this section, the American
Plaice Trimester TAC Area shall apply
to common pool vessels using trawl gear
within the area bounded by straight
lines connecting the following points in
the order stated:
AMERICAN PLAICE TRIMESTER TAC
AREA
Point
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
13 ........
PO 00000
N. Latitude
(1 )
44°10′
44°00′
44°00′
(2 )
42°53.1′
(2 )
41°10′
41°10′
41°00′
41°00′
40°50′
40°50′
Frm 00041
Fmt 4701
W. Longitude
68°00′
67°50′
67°50′
67°40′
67°40′
67°44.4′
67°40′
67°40′
67°10′
67°10′
67°00′
67°00′
66°50′
Sfmt 4700
AMERICAN PLAICE TRIMESTER TAC
AREA—Continued
Point
14
15
16
17
18
19
20
21
22
23
24
25
N. Latitude
........
........
........
........
........
........
........
........
........
........
........
........
40°40′
40°40′
39°50′
39°50′
41°00′
41°00′
41°10′
41°10′
41°20′
41°20′
(4 )
(5 )
W. Longitude
66°50′
66°40′
66°40′
68°50′
68°50′
69°30′
69°30′
69°50′
69°50′
(3)
70°00′
70°00′
1 Intersection
with ME shoreline.
maritime boundary.
shoreline of Nantucket, MA.
4 North-facing shoreline of Nantucket, MA.
5 South-facing shoreline of Cape Cod, MA.
2 U.S./Canada
3 East-facing
(I) Witch Flounder Trimester TAC
Area. For the purposes of the trimester
TAC AM closure specified in paragraph
(n)(2)(ii) of this section, the Witch
Flounder Trimester TAC Area shall
apply to common pool vessels using
trawl gear within the area bounded by
straight lines connecting the following
points in the order stated:
WITCH FLOUNDER TRIMESTER TAC
AREA
Point
N. Latitude
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
13 ........
14 ........
15 ........
16 ........
17 ........
18 ........
19 ........
20 ........
21 ........
22 ........
23 ........
24 ........
25 ........
(1 )
44°10′
44°00′
44°00′
(2 )
42°53.1′
(2 )
41°10′
41°10′
41°00′
41°00′
40°50′
40°50′
40°40′
40°40′
39°50′
39°50′
41°00′
41°00′
41°10′
41°10′
41°20′
41°20′
(4 )
(5 )
W. Longitude
68°00′
67°50′
67°50′
67°40′
67°40′
67°44.4′
67°40′
67°40′
67°10′
67°10′
67°00′
67°00′
66°50′
66°50′
66°40′
66°40′
68°50′
68°50′
69°30′
69°30′
69°50′
69°50′
(3)
70°00′
70°00′
1 Intersection
with ME shoreline.
maritime boundary.
shoreline of Nantucket, MA.
4 North-facing shoreline of Nantucket, MA.
5 South-facing shoreline of Cape Cod, MA.
2 U.S./Canada
3 East-facing
(J) GB Winter Flounder Trimester TAC
Area. For the purposes of the trimester
TAC AM closure specified in paragraph
(n)(2)(ii) of this section, the GB Winter
Flounder Trimester TAC Area shall
E:\FR\FM\03MYR2.SGM
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Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and Regulations
apply to common pool vessels using
trawl gear within the area bounded by
straight lines connecting the following
points in the order stated:
GB WINTER FLOUNDER TRIMESTER
TAC AREA
Point
1
2
3
4
5
6
..........
..........
..........
..........
..........
..........
N. Latitude
42°20′
42°20′
40°30′
40°30′
39°50′
39°50′
1 U.S./Canada
W. Longitude
68°50′
(1)
(1)
66°40′
66°40′
68°50′
maritime boundary
*
*
*
*
(M) White Hake Trimester TAC Area.
For the purposes of the trimester TAC
AM closure specified in paragraph
(n)(2)(ii) of this section, the White Hake
Trimester TAC Area shall apply to
common pool vessels using trawl gear,
sink gillnet gear, and longline/hook
gear, except for Handgear A and B
permitted vessels using handgear or tub
trawls, within the area bounded by
straight lines connecting the following
points in the order stated:
ACL from being exceeded prior to the
end of the fishing year.
*
*
*
*
*
■ 8. In § 648.83, revise paragraph (a)(1)
to read as follows:
§ 648.83
(a) * * *
(1) Minimum fish sizes for
recreational vessels and charter/party
vessels that are not fishing under a NE
multispecies DAS are specified in
§ 648.89. Except as provided in § 648.17,
all other vessels are subject to the
following minimum fish sizes,
determined by total length (TL):
*
WHITE HAKE TRIMESTER TAC AREA
Point
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
13 ........
14 ........
15 ........
16 ........
17 ........
18 ........
19 ........
20 ........
N. Latitude
(1)
43°40′
43°40′
43°20′
43°20′
(2)
42°53.1′
(2)
41°20′
41°20′
41°10′
41°10′
41°00′
41°00′
41°10′
41°10′
41°20′
41°20′
(4)
(5)
W. Longitude
69°20′
69°20′
69°00′
69°00′
67°40′
67°40′
67°44.4′
67°40′
67°40′
68°10′
68°10′
68°20′
68°20′
69°30′
69°30′
69°50′
69°50′
(3)
70°00′
70°00′
with ME shoreline.
maritime boundary.
3 East-facing shoreline of Nantucket, MA.
4 North-facing shoreline of Nantucket, MA.
5 South-facing shoreline of Cape Cod, MA.
erowe on DSK2VPTVN1PROD with RULES_2
*
*
*
*
(vi) Trip limit adjustment. When 60
percent of the northern or southern
windowpane flounder, ocean pout, or
Atlantic halibut sub-ACLs specified for
common pool vessels pursuant to
§ 648.90(a)(4)(iii)(H)(2) is projected to be
caught, the Regional Administrator may
specify, consistent with the APA, a
possession limit for these stocks that is
calculated to prevent the yearly sub-
14:55 May 02, 2013
Jkt 229001
Size
(inches)
Species
Cod ....................................
Haddock .............................
Pollock ...............................
Witch flounder (gray sole)
Yellowtail flounder .............
American plaice (dab) .......
Atlantic halibut ...................
Winter flounder (blackback)
Redfish ...............................
19 (48.3 cm)
16 (40.6 cm)
19 (48.3 cm)
13 (33 cm)
12 (30.5 cm)
12 (30.5 cm)
41 (104.1 cm)
12 (30.5 cm)
7 (17.8 cm)
*
*
*
*
*
■ 9. In § 648.84, add paragraph (e) to
read as follows:
*
2 U.S./Canada
VerDate Mar<15>2010
MINIMUM FISH SIZES (TL) FOR
COMMERCIAL VESSELS
§ 648.84 Gear-marking requirements and
gear restrictions.
1 Intersection
*
Multispecies minimum fish sizes.
*
*
*
*
(e) Rope separator trawl. A rope
separator trawl is defined as a four-seam
bottom trawl net (i.e., a net with a top
and bottom panel and two side panels)
modified to include both a horizontal
separator panel and an escape opening
in the bottom belly of the net below the
separator panel, as further specified in
paragraphs (e)(1) through (3) of this
section.
(1) Mesh size. The minimum mesh
size applied throughout the body and
extension of a rope separator trawl must
be 6-inch (15.2-cm) diamond mesh or
6.5-inch (16.5-cm) square mesh, or any
combination thereof. Mesh in the
bottom belly of the net must be 13-inch
(33-cm) diamond mesh. Unless
otherwise specified in this part, the
codend mesh size must be consistent
with mesh size requirements specified
in § 648.80. The mesh size of a
particular section of the rope separator
trawl is measured in accordance with
§ 648.80(f)(2), unless insufficient
numbers of mesh exist, in which case
the maximum total number of meshes in
the section will be measured (between
2 and 20 meshes).
PO 00000
Frm 00042
Fmt 4701
Sfmt 4700
(2) Separator panel. The separator
panel must consist of parallel lines
made of fiber rope, the ends of which
are attached to each side of the net
starting at the forward edge of the
square of the net and running aft toward
the extension of the net. The leading
rope must be attached to the side panel
at a point at least 1⁄3 of the number of
meshes of the side panel above the
lower gore, and the panel of ropes shall
slope downward toward the extension
of the net. For example, if the side panel
of the net is 42 meshes tall, the leading
rope must be attached at least 14 meshes
above the lower gore. The forward 2⁄3 of
the separator ropes that comprise the
separator panel must be no farther than
26 inches (66 cm) apart, with the after
1⁄3 of the separator ropes that comprise
the separator panel being no farther than
13 inches (33 cm) apart. The ends of the
aftermost rope shall be attached to the
bottom belly at a point 1⁄6 of the number
of meshes of the after end of the bottom
belly below the lower gore. The
separator ropes should be of sufficient
length not to impinge upon the overall
shape of the net without being too long
to compromise the selectivity of the net.
The separator ropes may not be
manipulated in any way that would
inhibit the selectivity of the net by
causing the separator ropes to dip
toward the bottom belly of the net and
obscure the escape opening, as defined
in paragraph (e)(3) of this section.
(3) Escape opening. The escape
opening must be positioned in the
bottom belly of the net behind the
sweep and terminate under the
separator panel, as described in
paragraph (e)(2) of this section.
Longitudinal lines may be used to
maintain the shape of the escape
opening, as necessary. The escape
opening shall be at least 18 meshes in
both length and width.
■ 10. In § 648.85, revise paragraphs
(a)(2)(ii) and (iii), (a)(3)(iv)(E),
(b)(7)(iv)(H), (b)(8)(v)(C), and (d) to read
as follows:
§ 648.85
Special management programs.
(a) * * *
(2) * * *
(ii) Adjustments to TACs. Any
overages of the overall Eastern GB cod,
Eastern GB haddock, and GB yellowtail
flounder U.S. TACs caused by an
overage of the component of the U.S.
TAC specified for either the common
pool, individual sectors, the scallop
fishery, or any other fishery, pursuant to
this paragraph (a)(2) and § 648.90(a)(4),
that occur in a given fishing year shall
be subtracted from the respective TAC
component responsible for the overage
in the following fishing year and may be
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subject to the overall groundfish AM
provisions as specified in
§ 648.90(a)(5)(ii) if the overall ACL for a
particular stock in a given fishing year,
specified pursuant to § 648.90(a)(4), is
exceeded.
(iii) Distribution of TACs. For stocks
managed by the U.S./Canada Resource
Sharing Understanding, as specified in
paragraph (a)(1) of this section, the TAC
allocation determined pursuant to this
paragraph (a)(2) shall be distributed
between sectors approved pursuant to
§ 648.87(c), common pool vessels,
scallop vessels, and other applicable
fisheries, as specified in § 648.90(a)(4).
Approved sectors will be allocated ACE
for Eastern GB cod and Eastern GB
haddock proportional to the sector’s
allocation of the overall ACL for these
stocks, based upon the fishing histories
of sector vessels, as specified in
§ 648.87(b)(1)(i). Any ACE for Eastern
GB cod and Eastern GB haddock
allocated to an individual sector is
considered a subset of the overall GB
cod and GB haddock ACE allocated to
that sector and may only be harvested
from the Eastern U.S./Canada Area,
while the remaining ACE for GB cod
and GB haddock available to that sector
may only be harvested outside of the
Eastern U.S./Canada Area. For example,
if a sector is allocated 10 percent of the
GB haddock ACL, it will also be
allocated 10 percent of the Eastern GB
haddock TAC for that particular fishing
year.
(3) * * *
(iv) * * *
(E) Closure of Eastern U.S./Canada
Area. Based upon available information,
when the Regional Administrator
projects that any individual TAC
allocation for NE multispecies common
pool or sectors specified in paragraph
(a)(2)(iii) of this section will be caught,
NMFS shall close, in a manner
consistent with the Administrative
Procedure Act, the Eastern U.S./Canada
Area to all vessels subject to that
particular TAC allocation, unless
otherwise allowed under this paragraph
(a)(3)(iv)(E). For example, if the Eastern
GB cod TAC specified for common pool
vessels is projected to be caught, NMFS
shall close the Eastern U.S./Canada Area
to all common pool vessels operating
under a NE multispecies DAS. Should
the Eastern U.S./Canada Area close as
described in this paragraph (a)(3)(iv)(E),
common pool vessels fishing under a
DAS may continue to fish in a SAP
within the Eastern U.S./Canada Area,
provided that the TAC for the target
stock identified for that particular SAP
(i.e., haddock for the Eastern U.S./
Canada Haddock SAP or haddock or
yellowtail flounder for the CA II
VerDate Mar<15>2010
14:55 May 02, 2013
Jkt 229001
Yellowtail Flounder/Haddock SAP) has
not been fully harvested. A vessel
fishing on a sector trip may only fish in
a SAP if that vessel’s sector has ACE
available for all stocks caught in that
SAP. For example, should the GB cod
TAC allocation specified for common
pool vessels in paragraph (a)(2)(iii) of
this section be attained, and the Eastern
U.S./Canada Area closure implemented
for common pool vessels, common pool
vessels could continue to fish for
yellowtail flounder within the SAP
identified as the Closed Area II
Yellowtail Flounder/Haddock SAP,
described in paragraph (b)(3) of this
section, in accordance with the
requirements of that program. Upon
closure of the Eastern U.S./Canada Area,
vessels may transit through this area as
described in paragraph (a)(1)(ii) of this
section, provided that its gear is stowed
in accordance with the provisions of
§ 648.23(b), unless otherwise restricted
under this part.
*
*
*
*
*
(b) * * *
(7) * * *
(iv) * * *
(H) Landing limits. For all vessels
legally declared into the CA I Hook Gear
Haddock SAP described in paragraph
(b)(7)(i) of this section, landing limits
for NE multispecies are specified in
paragraphs (b)(7)(v)(B) and (b)(7)(vi)(C)
of this section, respectively. Unless
otherwise restricted by § 648.86, such
vessels are prohibited from discarding
legal-sized regulated species and ocean
pout, and must exit the SAP and cease
fishing if any trip limit is achieved or
exceeded.
*
*
*
*
*
(8) * * *
(v) * * *
(C) Observer notifications. For the
purpose of selecting vessels for observer
deployment, a vessel must provide
notice to NMFS of the vessel name;
contact name for coordination of
observer deployment; telephone number
for contact; areas to be fished; and date,
time, and port of departure at least 48
hours prior to the beginning of any trip
that it declares into the Eastern U.S./
Canada Haddock SAP Program specified
in paragraph (b)(8)(i) of this section, as
required under paragraph (b)(8)(v)(D) of
this section, and in accordance with
instructions provided by the Regional
Administrator.
*
*
*
*
*
(d) Haddock incidental catch
allowance for some Atlantic herring
vessels. The haddock incidental catch
allowance for a vessel issued a Federal
Atlantic herring permit and fishing with
midwater trawl gear in Management
PO 00000
Frm 00043
Fmt 4701
Sfmt 4700
26159
Areas 1A, 1B, and/or 3, as defined in
§ 648.200(f)(1) and (3), is 1 percent of
each of the ABCs for GOM haddock and
GB haddock (U.S. catch only) specified
according to § 648.90(a)(4) for a
particular NE multispecies fishing year.
Such haddock catch will be determined
as specified in § 648.86(a)(3)(ii).
*
*
*
*
*
■ 11. In § 648.86, revise paragraphs
(a)(3)(ii)(A)(1), (3), and (4), to read as
follows:
§ 648.86 NE Multispecies possession
restrictions.
*
*
*
*
*
(a) * * *
(3) * * *
(ii) * * *
(A) * * *
(1) When the Regional Administrator
has determined that the incidental catch
allowance for a given haddock stock, as
specified in § 648.85(d), has been
caught, no vessel issued an Atlantic
herring permit and fishing with
midwater trawl gear in the applicable
stock area, i.e., the Herring GOM
Haddock Accountability Measure (AM)
Area or Herring GB Haddock AM Area,
as defined in paragraphs (a)(3)(ii)(A)(2)
and (3) of this section, may fish for,
possess, or land herring in excess of
2,000 lb (907.2 kg) per trip in or from
that area, unless all herring possessed
and landed by the vessel were caught
outside the applicable AM Area and the
vessel complies with the gear stowage
provisions specified in § 648.23(b) while
transiting the AM Area. Upon this
determination, the haddock possession
limit is reduced to 0 lb (0 kg) for a vessel
issued a Federal Atlantic herring permit
and fishing with midwater trawl gear or
for a vessel issued an All Areas Limited
Access Herring Permit and/or an Areas
2 and 3 Limited Access Herring Permit
fishing on a declared herring trip,
regardless of area fished or gear used, in
the applicable AM area, unless the
vessel also possesses a NE multispecies
permit and is operating on a declared
(consistent with § 648.10(g)) NE
multispecies trip. In making this
determination, the Regional
Administrator shall use haddock
catches observed by NMFS-approved
observers by herring vessel trips using
midwater trawl gear in Management
Areas 1A, 1B, and/or 3, as defined in
§ 648.200(f)(1) and (3), expanded to an
estimate of total haddock catch for all
such trips in a given haddock stock area.
*
*
*
*
*
(3) The Herring GB Haddock
Accountability Measure Area. The
Herring GB Haddock AM Area is
defined by the straight lines connecting
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Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and Regulations
the following points in the order stated
(copies of a map depicting the area are
available from the Regional
Administrator upon request):
HERRING GB HADDOCK
ACCOUNTABILITY MEASURE AREA
Point
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
13 ........
14 ........
15 ........
16 ........
N. Latitude
42°
42°
40°
40°
39°
39°
(2)
41°
41°
41°
41°
41°
41°
(5)
(6)
(7)
20′
20′
30′
30′
50′
50′
00′
00′
10′
10′
20′
20′
W. Longitude
70°
(1)
(1)
66°
66°
68°
68°
(3)
69°
69°
69°
69°
(4)
70°
70°
70°
00′
40′
40′
50′
50′
§ 648.87
30′
30′
50′
50′
00′
00′
00′
erowe on DSK2VPTVN1PROD with RULES_2
intersection of the U.S./Canada maritime boundary.
2 The intersection of the boundary of Closed
Area I and 68° 50′ W. long.
3 The intersection of the boundary of Closed
Area I and 41° 00′ N. lat.
4 The intersection of the east-facing shoreline of Nantucket, MA, and 41° 20′ N. lat.
5 The intersection of the north-facing shoreline of Nantucket, MA, and 70° 00′ W. long.
6 The intersection of the south-facing shoreline of Cape Cod, MA, and 70° 00′ W. long.
7 The intersection of the north-facing shoreline of Cape Cod, MA, and 70° 00′ W. long.
(4) The haddock incidental catch caps
specified are for the NE multispecies
fishing year (May 1-April 30), which
differs from the herring fishing year
(January 1-December 31). If the haddock
incidental catch allowance is attained
by the herring midwater trawl fishery
for the GOM or GB, as specified in
§ 648.85(d), the 2,000-lb (907.2-kg) limit
on herring possession in the applicable
AM Area, as described in paragraph
(a)(3)(ii)(A)(2) or (3) of this section, shall
be in effect until the end of the NE
multispecies fishing year. For example,
the 2011 haddock incidental catch cap
is specified for the period May 1, 2011April 30, 2012, and the 2012 haddock
catch cap would be specified for the
period May 1, 2012-April 30, 2013. If
the catch of haddock by herring
midwater trawl vessels reached the 2011
incidental catch cap at any time prior to
the end of the NE. multispecies fishing
year (April 30, 2012), the 2,000-lb
(907.2-kg) limit on possession of herring
in the applicable AM Area would
extend through April 30, 2012.
Beginning May 1, 2012, the 2012 catch
cap would go into effect.
*
*
*
*
*
■ 12. In § 648.87:
14:55 May 02, 2013
Jkt 229001
Sector allocation.
*
1 The
VerDate Mar<15>2010
a. Add paragraphs (b)(1)(ii)(A)
through (F);
■ b. Revise paragraphs (b)(1)(v)(B),
(b)(1)(vi)(B), (b)(2)(xi), (b)(4)
introductory text, (b)(4)(i)(F) and (G),
(b)(4)(i)(I), and (J), and (b)(4)(ii);
■ c. Remove paragraphs (b)(4)(iii);
■ d. Redesignate paragraph (b)(4)(iv) as
paragraph (b)(4)(iii);
■ e. Remove paragraph (b)(5);
■ f. Redesignate paragraph (b)(6) as
paragraph (b)(5) and revise it; and
■ g. Revise paragraph (c)(2)(i); and
The revisions and additions read as
follows:
SNE/MA YELLOWTAIL FLOUNDER
STOCK AREA
■
*
*
*
*
(b) * * *
(1) * * *
(ii) * * *
(A) CC/GOM Yellowtail Flounder
Stock Area. The CC/GOM Yellowtail
Flounder Stock Area, for the purposes of
identifying stock areas for trip limits
specified in § 648.86, and for
determining areas applicable to sector
allocations of CC/GOM yellowtail
flounder ACE pursuant to paragraph (b)
of this section, is defined as the area
bounded on the north and west by the
coastline of the United States, on the
east by the U.S./Canadian maritime
boundary, and on the south by rhumb
lines connecting the following points in
the order stated:
CC/GOM YELLOWTAIL FLOUNDER
STOCK AREA
Point
N. Latitude
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
6 ..........
7 ..........
8 ..........
9 ..........
10 ........
(1) ...........................
(2) ...........................
41° 20′ ...................
41° 20′ ...................
41° 10′ ...................
41° 10′ ...................
41° 00′ ...................
41° 00′ ...................
42° 20′ ...................
42° 20′ ...................
70°
70°
(3)
69°
69°
69°
69°
68°
68°
(4)
00′
00′
50′
50′
30′
30′
50′
50′
(B) SNE/MA Yellowtail Flounder
Stock Area. The SNE/MA Yellowtail
Flounder Stock Area, for the purposes of
identifying stock areas for trip limits
specified in § 648.86, and for
determining areas applicable to sector
allocations of SNE/MA yellowtail
flounder ACE pursuant to paragraph (b)
of this section, is the area bounded by
rhumb lines connecting the following
points in the order stated:
Frm 00044
Fmt 4701
N. Latitude
1 ..........
2 ..........
3 ..........
4 ..........
5 ..........
7 ..........
8 ..........
9 ..........
10 ........
11 ........
12 ........
13 ........
14 ........
15 ........
35° 00′ ...................
35° 00′ ...................
39° 00′ ...................
39° 00′ ...................
39° 50′ ...................
39° 50′ ...................
41° 00′ ...................
41° 00′ ...................
41° 10′ ...................
41° 10′ ...................
41° 20′ ...................
41° 20′ ...................
(4) ..........................
(5) ..........................
Sfmt 4700
W. Longitude
(1)
(2)
(2)
69°
69°
68°
68°
69°
69°
69°
69°
(3)
70°
70°
00′
00′
50′
50′
30′
30′
50′
50′
00′
00′
1 Intersection of east-facing coastline
Outer Banks, NC, and 35° 00′ N. lat.
2 U.S./Canada maritime boundary.
3 Intersection of east-facing coastline
Nantucket, MA, and 41° 20′ N. lat.
4 Intersection of north-facing coastline
Nantucket, MA, and 70° 00′ W. long.
5 Intersection of south-facing coastline
Cape Cod, MA, and 70° 00′ W. long.
of
of
of
of
(C) GOM Haddock Stock Area. The
GOM Haddock Stock Area, for the
purposes of identifying stock areas for
trip limits specified in § 648.86 and for
determining areas applicable to sector
allocations of GOM haddock ACE
pursuant to paragraph (b) of this section,
is defined as the area bounded on the
north and west by the coastline of the
United States, on the east by the U.S./
Canadian maritime boundary, and on
the south by straight lines connecting
the following points in the order stated:
GOM HADDOCK STOCK AREA
W. Longitude
1 Intersection of south-facing coastline of
Cape Cod, MA, and 70° 00′ W. long.
2 Intersection of north-facing coastline of
Nantucket, MA, and 70° 00′ W. long.
3 Intersection of east-facing coastline of
Nantucket, MA, and 41° 20′ N. lat.
4 U.S./Canada maritime boundary.
PO 00000
Point
Point
1
2
3
4
5
6
7
8
9
N. Latitude
..........
..........
..........
..........
..........
..........
..........
..........
..........
(1) ...........................
42° 20′ ...................
42° 20′ ...................
(2) ...........................
(3) ...........................
43° 50′ ...................
43° 50′ ...................
(4) ...........................
(5) ...........................
W. Longitude
70°
70°
67°
67°
67°
67°
(4)
67°
67°
00′
00′
40′
40′
40′
40′
00′
00′
1 Intersection of the north-facing coastline of
Cape Cod, MA, and 70° 00′ W. long.
2 U.S./Canada maritime boundary southern
intersection with 67° 40′ W. long.).
3 U.S./Canada maritime boundary northern
intersection with 67° 40′ W. long.).
4 U.S./Canada maritime boundary.
5 Intersection of the south-facing ME coastline and 67° 00′ W. long.
(D) GB Haddock Stock Area. The GB
Haddock Stock Area, for the purposes of
identifying stock areas for trip limits
specified in § 648.86 and for
determining areas applicable to sector
allocations of GB haddock ACE
pursuant to paragraph (b) of this section,
is defined as the area bounded on the
west by the coastline of the United
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States, on the south by a line running
from the east-facing coastline of North
Carolina at 35° N. lat. until its
intersection with the EEZ, on the east by
the U.S./Canadian maritime boundary,
and bounded on the north by straight
lines connecting the following points in
the order stated:
GB HADDOCK STOCK AREA
Point
N. Latitude
1 ..........
2 ..........
3 ..........
(1) ...........................
42° 20′ ...................
42° 20′ ...................
W. Longitude
70° 00′
70° 00′
(2)
1 Intersection of the north-facing coastline of
Cape Cod, MA, and 70° 00′ W. long.
2 U.S./Canada maritime boundary.
(E) Redfish Stock Area. The Redfish
Stock Area, for the purposes of
identifying stock areas for trip limits
specified in § 648.86 and for
determining areas applicable to sector
allocations of redfish ACE pursuant to
paragraph (b) of this section, is defined
as the area bounded on the north and
west by the coastline of the United
States, on the east by the U.S./Canadian
maritime boundary, and bounded on the
south by a rhumb line running from the
east-facing coastline of North Carolina at
35° N. lat. until its intersection with the
EEZ.
(F) GOM Winter Flounder Stock Area.
The GOM Winter Flounder Stock Area,
for the purposes of identifying stock
areas for trip limits specified in § 648.86
and for determining areas applicable to
sector allocations of GOM winter
flounder ACE pursuant to paragraph (b)
of this section, is the area bounded by
straight lines connecting the following
points in the order stated:
GOM WINTER FLOUNDER STOCK AREA
Point
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1
2
3
4
5
6
7
8
9
..........
..........
..........
..........
..........
..........
..........
..........
..........
N. Latitude
(1) ...........................
42° 20′ ...................
42° 20′ ...................
(2) ...........................
(3) ..........................
43° 50′ ...................
43° 50′ ...................
(4) ...........................
(5) ...........................
W. Longitude
70°
70°
67°
67°
67°
67°
(4)
67°
67°
00′
00′
40′
40′
40′
40′
00′
00′
1 Intersection of the north-facing coastline of
Cape Cod, MA, and 70° 00′ W. long.
2 U.S./Canada maritime boundary southern
intersection with 67° 40′ N. lat.).
3 U.S./Canada maritime boundary northern
intersection with 67° 40′ N. lat.).
4 U.S./Canada maritime boundary.
5 Intersection of the south-facing ME coastline and 67° 00′ W. long.
*
*
*
*
*
(v) * * *
(B) Independent third-party
monitoring program. Beginning in
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fishing year 2013 (May 1, 2013), a sector
must develop and implement an at-sea
or electronic monitoring program to
verify area fished, as well as catch and
discards by species and gear type, and
that is consistent with the goals and
objectives of groundfish monitoring
programs at § 648.11(l). The details of
any at-sea or electronic monitoring
program must be specified in the
sector’s operations plan, pursuant to
paragraph (b)(2)(xi) of this section, and
must meet the operational standards
specified in paragraph (b)(5) of this
section. Electronic monitoring may be
used in place of actual observers if the
technology is deemed sufficient by
NMFS for a specific trip type based on
gear type and area fished, in a manner
consistent with the Administrative
Procedure Act. The level of coverage for
trips by sector vessels is specified in
paragraph (b)(1)(v)(B)(1) of this section.
The at-sea/electronic monitoring
program shall be reviewed and
approved by the Regional Administrator
as part of a sector’s operations plans in
a manner consistent with the
Administrative Procedure Act. A service
provider providing at-sea or electronic
monitoring services pursuant to this
paragraph (b)(1)(v)(B) must meet the
service provider standards specified in
paragraph (b)(4) of this section, and be
approved by NMFS in a manner
consistent with the Administrative
Procedure Act.
(1) Coverage levels. Except as
specified in paragraph (b)(1)(v)(B)(1)(i)
of this section, any service provider
providing at-sea or electronic
monitoring services required under this
paragraph (b)(1)(v)(B)(1) must provide
coverage that is fair and equitable, and
distributed in a statistically random
manner among all trips such that
coverage is representative of fishing
activities by all vessels within each
sector and by all operations of vessels
operating in each sector throughout the
fishing year. Coverage levels for an atsea monitoring program shall be
specified by NMFS, pursuant to
paragraph (b)(1)(v)(B)(1)(i) of this
section, but shall be less than 100
percent of all sector trips. In the event
that a NMFS-sponsored observer and a
third-party at-sea monitor are assigned
to the same trip, only the NMFS
observer must observe that trip. If either
an at-sea monitor or electronic
monitoring is assigned to a particular
trip, a vessel may not leave port without
the appropriate at-sea monitor or
electronic monitoring equipment on
board.
(i) At-sea/electronic monitoring.
Unless otherwise specified in this
paragraph (b)(1)(v)(B)(1)(i), beginning in
PO 00000
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26161
fishing year 2013, coverage levels must
be sufficient to at least meet the
coefficient of variation specified in the
Standardized Bycatch Reporting
Methodology at the overall stock level
for each stock of regulated species and
ocean pout, and to monitor sector
operations, to the extent practicable, in
order to reliably estimate overall catch
by sector vessels. In making its
determination, NMFS shall take into
account the goals and objective of
groundfish monitoring programs at
§ 648.11(l), the National Standards and
requirements of the Magnuson-Stevens
Act, including but not limited to the
costs to sector vessels and NMFS, and
any other relevant factors. For FYs 2013
and beyond, NMFS shall specify a
separate coverage rate, lower than the
coverage rate for all other sector trips,
for sector trips fishing with 10-inch
(25.4-cm) mesh or larger gillnets on a
monkfish DAS, pursuant to
§ 648.91(c)(1)(iii), and only in the SNE
Broad Stock Area, as defined at
§ 648.10(k)(3)(iv).
(2) Hail reports. For the purposes of
the at-sea monitoring requirements
specified in paragraph (b)(1)(v)(B) of
this section, sector vessels must submit
all hail reports for a sector trip in which
the NE multispecies catch applies
against the ACE allocated to a sector, as
specified in this part, to service
providers offering at-sea monitoring
services. The mechanism and timing of
the transmission of such hail reports
must be consistent with instructions
provided by the Regional Administrator
for any at-sea or electronic monitoring
program required by paragraph
(b)(1)(v)(B) of this section, or specified
in the annual sector operations plan,
consistent with paragraph (b)(5) of this
section.
(3) Notification of service provider
change. If, for any reason, a sector
decides to change approved service
providers used to provide at-sea or
electronic monitoring services required
in this paragraph (b)(1)(v), the sector
manager must first inform NMFS in
writing in advance of the effective date
of the change in approved service
providers in conjunction with the
submission of the next weekly sector
catch report specified in paragraph
(b)(1)(vi)(B) of this section. A sector may
employ more than one service provider
at any time, provided any service
provider employed by a sector meets the
standards specified in paragraph (b)(4)
of this section.
(vi) * * *
(B) Weekly catch report. Each sector
must submit weekly reports to NMFS
stating the remaining balance of ACE
allocated to each sector based upon
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Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and Regulations
regulated species and ocean pout
landings and discards of vessels
participating in that sector and any
compliance/enforcement concerns.
These reports must include at least the
following information, as instructed by
the Regional Administrator: Week
ending date; species, stock area, gear,
number of trips, reported landings
(landed pounds and live pounds),
discards (live pounds), total catch (live
pounds), status of the sector’s ACE
(pounds remaining and percent
remaining), and whether this is a new
or updated record of sector catch for
each NE multispecies stock allocated to
that particular sector; sector
enforcement issues; and a list of vessels
landing for that reporting week. These
weekly catch reports must be submitted
no later than 0700 hr on the second
Monday after the reporting week, as
defined in this part. The frequency of
these reports must be increased to more
than a weekly submission when the
balance of remaining ACE is low, as
specified in the sector operations plan
and approved by NMFS. If requested,
sectors must provide detailed trip-bytrip catch data to NMFS for the
purposes of auditing sector catch
monitoring data based upon guidance
provided by the Regional Administrator.
*
*
*
*
*
(2) * * *
(xi) Detailed plans for the monitoring
and reporting of landings and discards
by sector participants, including, but
not limited to, detailed information
describing the sector’s at-sea/electronic
monitoring program for monitoring
utilization of ACE allocated to that
sector; identification of the independent
third-party service providers employed
by the sector to provide at-sea/electronic
monitoring services; the mechanism and
timing of any hail reports; a list of
specific ports where participating
vessels will land fish, with specific
exemptions noted for safety, weather,
etc., allowed, provided the sector
provides reasonable notification to
NMFS concerning a deviation from the
listed ports; and any other information
about such a program required by
NMFS;
*
*
*
*
*
(4) Independent third-party
monitoring provider standards. Any
service provider intending to provide atsea/electronic monitoring services
described in paragraph (b)(1)(v) of this
section must apply to and be approved/
certified by NMFS in a manner
consistent with the Administrative
Procedure Act. NMFS shall approve/
certify service providers and/or at-sea
monitors as eligible to provide sector
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14:55 May 02, 2013
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monitoring services specified in this
part and can disapprove/decertify
service providers and/or individual
monitors through notice in writing to
individual service providers/monitors if
the following criteria are no longer
being met:
(i) * * *
(F) A description of the applicant’s
ability to carry out the responsibilities
and duties of a sector monitoring/
reporting service provider and the
arrangements to be used, including
whether the service provider is able to
offer at-sea monitoring services;
(G) Evidence of adequate insurance
(copies of which shall be provided to
the vessel owner, operator, or vessel
manager, when requested) to cover
injury, liability, and accidental death to
cover at-sea monitors (including during
training); vessel owner; and service
provider;
*
*
*
*
*
(I) Proof that the service provider’s atsea monitors have passed an adequate
training course sponsored by the service
providers to the extent not funded by
NMFS that is consistent with the
curriculum used in the current yearly
NEFOP training course, unless
otherwise specified by NMFS;
(J) An Emergency Action Plan
describing the provider’s response to an
emergency with an at-sea monitor,
including, but not limited to, personal
injury, death, harassment, or
intimidation; and
*
*
*
*
*
(ii) Service provider performance
requirements. At-sea monitoring service
providers must be able to document
compliance with the following criteria
and requirements:
(A) A service provider must establish
and carry out a comprehensive plan to
deploy NMFS-certified at-sea monitors,
or other at-sea monitoring mechanism,
such as electronic monitoring
equipment that is approved by NMFS,
according to a prescribed coverage level
(or level of precision for catch
estimation), as specified by NMFS,
including all of the necessary vessel
reporting/notice requirements to
facilitate such deployment, as follows:
(1) A service provider must be
available to industry 24 hr per day, 7
days per week, with the telephone
system monitored a minimum of four
times daily to ensure rapid response to
industry requests;
(2) A service provider must be able to
deploy at-sea monitors, or other
approved at-sea monitoring mechanism
to all ports in which service is required
by sectors, or a subset of ports as part
of a contract with a particular sector;
PO 00000
Frm 00046
Fmt 4701
Sfmt 4700
(3) A service provider must report atsea monitors and other approved at-sea
monitoring mechanism deployments to
NMFS and the sector manager in a
timely manner to determine whether the
predetermined coverage levels are being
achieved for the appropriate sector;
(4) A service provider must assign atsea monitors and other approved at-sea
monitoring mechanisms without regard
to any preference by the sector manager
or representatives of vessels other than
when the service is needed and the
availability of approved/certified
monitors and other at-sea monitoring
mechanisms;
(5) A service provider’s at-sea monitor
assignment must be fair, equitable,
representative of fishing activities
within each sector, and able to monitor
fishing activity throughout the fishing
year;
(6) For service providers offering
catch estimation or at-sea monitoring
services, a service provider must be able
to determine an estimate of discards for
each trip and provide such information
to the sector manager and NMFS, as
appropriate and as required by this
section;
(B) The service provider must ensure
that at-sea monitors remain available to
NMFS, including NMFS Office for Law
Enforcement, for debriefing for at least
2 weeks following any monitored trip/
offload;
(C) The service provider must report
possible at-sea monitor harassment;
discrimination; concerns about vessel
safety or marine casualty; injury; and
any information, allegations, or reports
regarding at-sea monitor conflict of
interest or breach of the standards of
behavior to NMFS and/or the sector
manager, as specified by NMFS;
(D) The service provider must submit
to NMFS, if requested, a copy of each
signed and valid contract (including all
attachments, appendices, addendums,
and exhibits incorporated into the
contract) between the service provider
and those entities requiring services
(i.e., sectors and participating vessels)
and between the service provider and
specific dockside, roving, or at-sea
monitors;
(E) The service provider must submit
to NMFS, if requested, copies of any
information developed and used by the
service providers distributed to vessels,
such as informational pamphlets,
payment notification, description of
duties, etc.;
(F) A service provider may refuse to
deploy an at-sea monitor or other
approved at-sea monitoring mechanism
on a requesting fishing vessel for any
reason including, but not limited to, the
following:
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(1) If the service provider does not
have an available at-sea monitor or other
at-sea monitoring mechanism approved
by NMFS within the advanced notice
requirements established by the service
provider;
(2) If the service provider is not given
adequate notice of vessel departure or
landing from the sector manager or
participating vessels, as specified by the
service provider;
(3) For the purposes of at-sea
monitoring, if the service provider has
determined that the requesting vessel is
inadequate or unsafe pursuant to the
reasons described in § 600.746; and
(4) Failure to pay for previous
deployments of at-sea monitors, or other
approved at-sea monitoring mechanism.
(G) With the exception of a service
provider offering reporting, dockside,
and/or at-sea monitoring services to
participants of another fishery managed
under Federal regulations, a service
provider must not have a direct or
indirect interest in a fishery managed
under Federal regulations, including,
but not limited to, fishing vessels,
dealers, shipping companies, sectors,
sector managers, advocacy groups, or
research institutions and may not solicit
or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan,
or anything of monetary value from
anyone who conducts fishing or fishingrelated activities that are regulated by
NMFS, or who has interests that may be
substantially affected by the
performance or nonperformance of the
official duties of service providers;
(H) A system to record, retain, and
distribute the following information to
NMFS, as requested, for a period
specified by NMFS, including:
(1) At-sea monitor and other approved
monitoring equipment deployment
levels, including the number of refusals
and reasons for such refusals;
(2) Incident/non-compliance reports
(e.g., failure to offload catch); and
(3) Hail reports, landings records, and
other associated interactions with
vessels and dealers.
(I) A means to protect the
confidentiality and privacy of data
submitted by vessels, as required by the
Magnuson-Stevens Act; and
(J) A service provider must be able to
supply at-sea monitors with sufficient
safety and data-gathering equipment, as
specified by NMFS.
*
*
*
*
*
(5) At-sea/electronic monitoring
operational standards. In addition to the
independent third-party monitoring
provider standards specified in
paragraph (b)(4) of this section, any atsea/electronic monitoring program
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developed as part of a sector’s yearly
operations plan pursuant to paragraph
(b)(1)(v)(B) of this section must meet the
following operational standards to be
approved by NMFS:
(i) Gear. Each at-sea monitor must be
provided with all of the equipment
specified by the Northeast Fisheries Atsea Monitoring Program. A list of such
equipment is available from the
Northeast Fisheries Science Center upon
request. At-sea/electronic monitoring
service providers are responsible for the
cost of providing such gear to at-sea
monitors to the extent not funded by
NMFS. This gear shall be inspected by
NMFS upon the completion of training
required pursuant to paragraph
(b)(4)(i)(I) of this section.
(ii) Vessel selection protocol. An atsea/electronic monitoring program
service provider must develop a formal
vessel-selection protocol to deploy atsea monitors and electronic monitoring
equipment in a statistically random
manner consistent with the coverage
levels required pursuant to paragraph
(b)(1)(v)(B)(1) of this section. This
protocol must include a method to
allow for waivers in specific
circumstances, including how waivers
would be requested, assessed, and
recorded.
(iii) Reporting/recordkeeping
requirements—(A) Vessel requirements.
In addition to all other reporting/
recordkeeping requirements specified in
this part, to facilitate the deployment of
at-sea monitors and electronic
monitoring equipment pursuant to
paragraph (b)(1)(v)(B)(1) of this section,
the operator of a vessel fishing on a
sector trip must provide at-sea/
electronic monitoring service providers
with at least the following information:
The vessel name, permit number, trip ID
number in the form of the VTR serial
number of the first VTR page for that
trip or another trip identifier specified
by NMFS, whether a monkfish DAS will
be used, and an estimate of the date/
time of departure in advance of each
trip. The timing of such notice shall be
sufficient to allow ample time for the
service provider to determine whether
an at-sea monitor or electronic
monitoring equipment will be deployed
on each trip and allow the at-sea
monitor or electronic monitoring
equipment to prepare for the trip and
get to port, or to be installed on the
vessel, respectively. The details of the
timing, method (e.g., phone, email, etc.),
and information needed for such pretrip notifications shall be included as
part of a sector’s yearly operations plan.
If a vessel has been informed by a
service provider that an at-sea monitor
or electronic monitoring equipment has
PO 00000
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26163
been assigned to a particular trip
pursuant to paragraph (b)(6)(iii)(B)(1) of
this section, the vessel may not leave
port to begin that trip until the at-sea
monitor has arrived and boarded the
vessel, or the electronic monitoring
equipment has been properly installed.
(B) At-sea/electronic monitoring
service provider requirements—(1)
Confirmation of pre-trip notification.
Upon receipt of a pre-trip notification
pursuant to paragraph (b)(5)(iii)(A) of
this section, the service provider shall
inform the vessel operator whether the
vessel will be monitored by an at-sea
observer or electronic monitoring
equipment for that trip, or will be issued
an at-sea/electronic monitoring waiver
for that trip based upon the vessel
selection protocol specified in
paragraph (b)(5)(ii) of this section.
(2) At-sea/electronic monitoring
report. A report detailing area fished
and the amount of each species kept and
discarded shall be submitted
electronically in a standard acceptable
form to the appropriate sector and
NMFS within 48 hr of the completion of
the trip, as instructed by the Regional
Administrator. The data elements to be
collected and the format for submission
shall be specified by NMFS and
distributed to all approved at-sea/
electronic monitoring service providers
and sectors. At-sea/electronic
monitoring data shall not be accepted
until such data pass automated NMFS
data quality checks.
(iv) Safety hazards—(A)Vessel
requirements. The operator of a sector
vessel must detail and identify any
safety hazards to any at-sea monitor
assigned pursuant to paragraph
(b)(5)(iii)(B)(1) of this section prior to
leaving port. A vessel cannot begin a
trip if it has failed a review of safety
issues pursuant to paragraph
(b)(5)(iv)(B) of this section, until the
identified safety deficiency has been
resolved, pursuant to § 600.746(i).
(B) At-sea/electronic monitoring
service provider requirements. An at-sea
monitor must complete a pre-trip vessel
safety checklist provided by NMFS
before an at-sea monitor can leave port
onboard a vessel on a sector trip. If the
vessel fails a review of safety issues
pursuant to this paragraph (b)(5)(iv)(B),
an at-sea monitor cannot be deployed on
that vessel for that trip.
(v) Adjustment to operational
standards. The at-sea/electronic
monitoring operational standards
specified in paragraph (b)(5) of this
section may be revised by the Regional
Administrator in a manner consistent
with the Administrative Procedure Act.
(c) * * *
(2) * * *
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(i) Regulations that may not be
exempted for sector participants. The
Regional Administrator may not exempt
participants in a sector from the
following Federal fishing regulations:
Specific time and areas within the NE
multispecies year-round closure areas;
permitting restrictions (e.g., vessel
upgrades, etc.); gear restrictions
designed to minimize habitat impacts
(e.g., roller gear restrictions, etc.);
reporting requirements; and AMs
specified at § 648.90(a)(5)(i)(D). For the
purposes of this paragraph (c)(2)(i), the
DAS reporting requirements specified at
§ 648.82; the SAP-specific reporting
requirements specified at § 648.85; and
the reporting requirements associated
with a dockside monitoring program
specified in paragraph (b)(5)(i) of this
section are not considered reporting
requirements, and the Regional
Administrator may exempt sector
participants from these requirements as
part of the approval of yearly operations
plans. For the purpose of this paragraph
(c)(2)(i), the Regional Administrator may
not grant sector participants exemptions
from the NE multispecies year-round
closures areas defined as Essential Fish
Habitat Closure Areas as defined at
§ 648.81(h); the Fippennies Ledge Area
as defined in paragraph (c)(2)(i)(A) of
this section; Closed Area I and Closed
Area II, as defined at § 648.81(a) and (b),
respectively, during the period February
16 through April 30; and the Western
GOM Closure Area, as defined at
§ 648.81(e), where it overlaps with any
Sector Rolling Closure Areas, as defined
at § 648.81(f)(2)(vi). This list may be
modified through a framework
adjustment, as specified in § 648.90.
(A) Fippennies Ledge Area. The
Fippennies Ledge Area is bounded by
the following coordinates, connected by
straight lines in the order listed:
FIPPENNIES LEDGE AREA
Point
1
2
3
4
..........
..........
..........
..........
N. Latitude
42°50.0′
42°44.0′
42°44.0′
42°50.0′
W. Longitude
69°17.0′
69°14.0′
69°18.0′
69°21.0′
(B) [Reserved]
*
*
*
*
■ 13. In § 648.89, revise paragraph (f)(2)
and add paragraph (f)(3) to read as
follows:
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*
§ 648.89 Recreational and charter/party
vessel restrictions.
*
*
*
*
*
(f) * * *
(2) Reactive AM adjustment. If it is
determined that any recreational sub-
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ACL was exceeded, as specified in
paragraph (f)(1) of this section, the
Regional Administrator, after
consultation with the New England
Fishery Management Council, shall
develop measures necessary to prevent
the recreational fishery from exceeding
the appropriate sub-ACL in future years.
Appropriate AMs for the recreational
fishery, including adjustments to fishing
season, minimum fish size, or
possession limits, may be implemented
in a manner consistent with the
Administrative Procedure Act, with
final measures published in the Federal
Register no later than January when
possible. Separate AMs shall be
developed for the private and charter/
party components of the recreational
fishery.
(3) Proactive AM adjustment. When
necessary, the Regional Administrator,
after consultation with the New England
Fishery Management Council, may
adjust recreational measures to ensure
the recreational fishery achieves, but
does not exceed any recreational fishery
sub-ACL in a future fishing year.
Appropriate AMs for the recreational
fishery, including adjustments to fishing
season, minimum fish size, or
possession limits, may be implemented
in a manner consistent with the
Administrative Procedure Act, with
final measures published in the Federal
Register prior to the start of the fishing
year where possible. In specifying these
AMs, the Regional Administrator shall
take into account the non-binding
prioritization of possible measures
recommended by the Council: for cod,
first increases to minimum fish sizes,
then adjustments to seasons, followed
by changes to bag limits; and for
haddock, first increases to minimum
size limits, then changes to bag limits,
and then adjustments to seasons.
■ 14. In § 648.90:
■ a. Revise paragraphs (a)(4)(iii)
introductory text and (a)(4)(iii)(B), (C),
and (E);
■ b. Add paragraphs (a)(4)(iii)(F)
through (H); and
■ c. Revise paragraphs (a)(4)(iv)(B) and
(a)(5).
The revisions and additions read as
follows:
§ 648.90 NE multispecies assessment,
framework procedures and specifications,
and flexible area action system.
*
*
*
*
*
(a) * * *
(4) * * *
(iii) ABC/ACL distribution. The ABCs/
ACLs adopted by the Council for each
regulated species or ocean pout stock
pursuant to this paragraph (a)(4) shall be
subdivided among the various sub-
PO 00000
Frm 00048
Fmt 4701
Sfmt 4700
components of the fishery, as specified
in paragraphs (a)(4)(iii)(A) through (H)
of this section. For transboundary stocks
managed by the Understanding,
pursuant to § 648.85(a), the distribution
of ABC/ACLs described in paragraphs
(a)(4)(iii)(A) through (H) of this section
shall be based upon the catch available
to U.S. fishermen. The Council may
revise its recommendations for the
distribution of ABCs and ACLs among
these and other sub-components
through the process to specify ABCs and
ACLs, as described in this paragraph
(a)(4).
*
*
*
*
*
(B) Regulated species or ocean pout
catch by exempted fisheries. Unless
otherwise specified in paragraphs
(a)(4)(iii)(F) or (G) of this section,
regulated species or ocean pout catch by
other, non-specified sub-components of
the fishery, including, but not limited
to, exempted fisheries that occur in
Federal waters and fisheries harvesting
exempted species specified in
§ 648.80(b)(3) shall be deducted from
the ABC/ACL of each regulated species
or ocean pout stock, pursuant to the
process to specify ABCs and ACLs
described in this paragraph (a)(4). The
catch of these non-specified subcomponents of the ACL shall be
monitored using data collected pursuant
to this part. If catch from such fisheries
exceeds the amount specified in this
paragraph (a)(4)(iii)(B), AMs shall be
developed to prevent the overall ACL
for each stock from being exceeded,
pursuant to the framework adjustment
process specified in this section.
(C) Yellowtail flounder catch by the
Atlantic sea scallop fishery. Yellowtail
flounder catch in the Atlantic sea
scallop fishery, as defined in subpart D
of this part, shall be deducted from the
ABC/ACL for each yellowtail flounder
stock pursuant to the restrictions
specified in subpart D of this part and
the process to specify ABCs and ACLs,
as described in paragraph (a)(4) of this
section. Unless otherwise specified in
this paragraph (a)(4)(iii)(C), or subpart D
of this part, the specific value of the
sub-components of the ABC/ACL for
each stock of yellowtail flounder
distributed to the Atlantic sea scallop
fishery shall be specified pursuant to
the biennial adjustment process
specified in paragraph (a)(2) of this
section. The Atlantic sea scallop fishery
shall be allocated 40 percent of the GB
yellowtail ABC (U.S. share only) in
fishing year 2013, and 16 percent in
fishing year 2014 and each fishing year
thereafter, pursuant to the process for
specifying ABCs and ACLs described in
this paragraph (a)(4). An ACL based on
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this ABC shall be determined using the
process described in paragraph (a)(4)(i)
of this section. Based on information
available, NMFS shall project the
expected scallop fishery catch of GB
yellowtail flounder for the current
fishing year by January 15. If NMFS
determines that the scallop fishery will
catch less than 90 percent of its GB
yellowtail flounder sub-ACL, the
Regional Administrator may reduce the
scallop fishery sub-ACL to the amount
projected to be caught, and increase the
groundfish fishery sub-ACL by any
amount up to the amount reduced from
the scallop fishery sub-ACL. The revised
groundfish fishery sub-ACL shall be
distributed to the common pool and
sectors based on the process specified in
paragraph (a)(4)(iii)(H)(1) of this section.
*
*
*
*
*
(E) SNE/MA windowpane flounder
catch by the Atlantic sea scallop fishery.
SNE/MA windowpane flounder catch in
the Atlantic sea scallop fishery, as
defined in subpart D of this part, shall
be deducted from the ABC/ACL for
SNE/MA windowpane flounder
pursuant to the restrictions specified in
subpart D of this part and the process to
specify ABCs and ACLs, as described in
paragraph (a)(4) of this section. The
Atlantic sea scallop fishery shall be
allocated 36 percent of the GB
yellowtail ABC (U.S. share only) in
fishing year 2013 and each fishing year
after, pursuant to the process for
specifying ABCs and ACLs described in
this paragraph (a)(4). An ACL based on
this ABC shall be determined using the
process described in paragraph (a)(4)(i)
of this section.
(F) SNE/MA windowpane flounder
catch by exempted fisheries. SNE/MA
windowpane flounder catch by other,
non-specified sub-components of the
fishery, including, but not limited to,
exempted fisheries that occur in Federal
waters and fisheries harvesting
exempted species specified in
§ 648.80(b)(3), shall be deducted from
the ABC/ACL for SNE/MA windowpane
flounder pursuant to the process to
specify ABCs and ACLs, as described in
this paragraph (a)(4). The specific value
of the sub-components of the ABC/ACL
for SNE/MA windowpane flounder
distributed to these other fisheries shall
be specified pursuant to the biennial
adjustment process specified in
paragraph (a)(2) of this section.
(G) GB yellowtail flounder catch by
small mesh fisheries. GB yellowtail
flounder catch by bottom trawl vessels
fishing with a codend mesh size of less
than 5-inch (12.7-cm) in other, nonspecified sub-components of the fishery,
including, but not limited to, exempted
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fisheries that occur in Federal waters
and fisheries harvesting exempted
species specified in § 648.80(b)(3), shall
be deducted from the ABC/ACL for GB
yellowtail flounder pursuant to the
process to specify ABCs and ACLs, as
described in this paragraph (a)(4). This
small mesh fishery shall be allocated 2
percent of the GB yellowtail ABC (U.S.
share only) in fishing year 2013 and
each fishing year after, pursuant to the
process for specifying ABCs and ACLs
described in this paragraph (a)(4). An
ACL based on this ABC shall be
determined using the process described
in paragraph (a)(4)(i) of this section.
(H) Regulated species or ocean pout
catch by the NE multispecies
commercial and recreational fisheries.
Unless otherwise specified in the ACL
recommendations developed pursuant
to paragraph (a)(4)(i) of this section,
after all of the deductions and
considerations specified in paragraphs
(a)(4)(iii)(A) through (G) of this section,
the remaining ABC/ACL for each
regulated species or ocean pout stock
shall be allocated to the NE multispecies
commercial and recreational fisheries,
pursuant to this paragraph (a)(4)(iii)(H).
(1) Recreational allocation. Unless
otherwise specified in paragraph (a)(5)
of this section, recreational catches shall
be compared to the ACLs allocated
pursuant to this paragraph
(a)(4)(iii)(H)(1) for the purposes of
determining whether adjustments to
recreational measures are necessary,
pursuant to the recreational fishery AMs
specified in § 648.89(f).
(i) Stocks allocated. Unless otherwise
specified in this paragraph
(a)(4)(iii)(H)(1), the ABCs/ACLs for
GOM cod and GOM haddock available
to the NE multispecies fishery pursuant
to paragraph (a)(4)(iii)(H) of this section
shall be divided between commercial
and recreational components of the
fishery, based upon the average
proportional catch of each component
for each stock during fishing years 2001
through 2006.
(ii) Process for determining if a
recreational allocation is necessary. A
recreational allocation may not be made
if it is determined that, based upon
available information, the ACLs for
these stocks are not being fully
harvested by the NE multispecies
fishery, or if the recreational harvest,
after accounting for state waters catch
pursuant to paragraph (a)(4)(iii)(A) of
this section, is less than 5 percent of the
overall catch for a particular stock of
regulated species or ocean pout.
(2) Commercial allocation. Unless
otherwise specified in this paragraph
(a)(4)(iii)(H)(2), the ABC/ACL for
regulated species or ocean pout stocks
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Fmt 4701
Sfmt 4700
26165
available to the commercial NE
multispecies fishery, after consideration
of the recreational allocation pursuant
to paragraph (a)(4)(iii)(H)(1) of this
section, shall be divided between
vessels operating under approved sector
operations plans, as described at
§ 648.87(c), and vessels operating under
the provisions of the common pool, as
defined in this part, based upon the
cumulative PSCs of vessels participating
in sectors calculated pursuant to
§ 648.87(b)(1)(i)(E). For fishing years
2010 and 2011, the ABC/ACL of each
regulated species or ocean pout stocks
not allocated to sectors pursuant to
§ 648.87(b)(1)(i)(E) (i.e., Atlantic halibut,
SNE/MA winter flounder, ocean pout,
windowpane flounder, and Atlantic
wolffish) that is available to the
commercial NE multispecies fishery
shall be allocated entirely to the
common pool. Unless otherwise
specified in paragraph (a)(5) of this
section, regulated species or ocean pout
catch by common pool and sector
vessels shall be deducted from the subACL/ACE allocated pursuant to this
paragraph (a)(4)(iii)(H)(2) for the
purposes of determining whether
adjustments to common pool measures
are necessary, pursuant to the common
pool AMs specified in § 648.82(n), or
whether sector ACE overages must be
deducted, pursuant to § 648.87(b)(1)(iii).
(3) Revisions to commercial and
recreational allocations. Distribution of
the ACL for each stock available to the
NE multispecies fishery between and
among commercial and recreational
components of the fishery may be
implemented through a framework
adjustment pursuant to this section.
Any changes to the distribution of ACLs
to the NE multispecies fishery shall not
affect the implementation of AMs based
upon the distribution in effect at the
time of the overage that triggered the
AM.
(iv) * * *
(B) Discards. Unless otherwise
specified in this paragraph (a)(4)(iv)(B),
regulated species or ocean pout discards
shall be monitored through the use of
VTRs, observer data, VMS catch reports,
and other available information, as
specified in this part. Regulated species
or ocean pout discards by vessels on a
sector trip shall be monitored pursuant
to § 648.87(b)(1)(v)(A).
(v) * * *
(5) AMs. Except as specified in
paragraphs (a)(4)(iii)(A) through (G) of
this section, if any of the ACLs specified
in paragraph (a)(4) of this section are
exceeded based upon available catch
information, the AMs specified in
paragraphs (a)(5)(i) and (ii) of this
section shall take effect in the following
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fishing year, or as soon as practicable,
thereafter, once catch data for all
affected fisheries are available, as
applicable.
(i) AMs for the NE multispecies
commercial and recreational fisheries. If
the catch of regulated species or ocean
pout by a sub-component of the NE
multispecies fishery (i.e., common pool
vessels, sector vessels, or private
recreational and charter/party vessels)
exceeds the amount allocated to each
sub-component, as specified in
paragraph (a)(4)(iii)(H) of this section,
then the applicable a.m. for that subcomponent of the fishery shall take
effect, pursuant to paragraphs
(a)(5)(i)(A) through (C) of this section. In
determining the applicability of AMs
specified for a sub-component of the NE
multispecies fishery in paragraphs
(a)(5)(i)(A) through (C) of this section,
the Regional Administrator shall
consider available information regarding
the catch of regulated species and ocean
pout by each sub-component of the NE
multispecies fishery, plus each subcomponent’s share of any overage of the
overall ACL for a particular stock
caused by excessive catch by vessels
outside of the FMP, exempted fisheries,
or the Atlantic sea scallop fishery, as
specified in this paragraph (a)(5), as
appropriate.
(A) Excessive catch by common pool
vessels. If the catch of regulated species
and ocean pout by common pool vessels
exceeds the amount of the ACL
specified for common pool vessels
pursuant to paragraph (a)(4)(iii)(H)(2) of
this section, then the AMs described in
§ 648.82(n) shall take effect. Pursuant to
the distribution of ABCs/ACLs specified
in paragraph (a)(4)(iii)(H)(2) of this
section, for the purposes of this
paragraph (a)(5)(i)(A), the catch of each
regulated species or ocean pout stock
not allocated to sectors pursuant to
§ 648.87(b)(1)(i)(E) (i.e., Atlantic halibut,
SNE/MA winter flounder, ocean pout,
windowpane flounder, and Atlantic
wolffish) during fishing years 2010 and
2011 shall be added to the catch of such
stocks by common pool vessels to
determine whether the differential DAS
counting AM described in § 648.82(n)(1)
shall take effect. If such catch does not
exceed the portion of the ACL specified
for common pool vessels pursuant to
paragraph (a)(4)(iii)(H)(2) of this section,
then no AMs shall take effect for
common pool vessels.
(B) Excessive catch by sector vessels.
If the catch of regulated species and
ocean pout by sector vessels exceeds the
amount of the ACL specified for sector
vessels pursuant to paragraph
(a)(4)(iii)(H)(2) of this section, then the
AMs described in § 648.87(b)(1)(iii)
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14:55 May 02, 2013
Jkt 229001
shall take effect. For the purposes of this
paragraph (a)(5)(i)(B), the catch of
regulated species and ocean pout for
each sector approved pursuant to
§ 648.87 shall be based upon the catch
of vessels participating in each
approved sector. If such catch does not
exceed the portion of the ACL specified
for an individual sector pursuant to
paragraph (a)(4)(iii)(H)(2) of this section,
then no AMs shall take effect for that
sector.
(C) Excessive catch by the NE
multispecies recreational fishery. If the
catch of regulated species and ocean
pout by private recreational and charter/
party vessels exceeds the amount of the
ACL specified for the recreational
fishery pursuant to paragraph
(a)(4)(iii)(H)(1) of this section, then the
AMs described in § 648.89(f) shall take
effect. If such catch does not exceed the
portion of the ACL specified for the
recreational fishery pursuant to
paragraph (a)(4)(iii)(H)(1) of this section,
then no AMs shall take effect for the
recreational fishery.
(D) AMs for both stocks of
windowpane flounder, ocean pout,
Atlantic halibut, Atlantic wolffish, and
SNE/MA winter flounder. At the end of
each fishing year, NMFS shall
determine if the overall ACL for
northern windowpane flounder,
southern windowpane flounder, ocean
pout, Atlantic halibut, Atlantic wolffish,
or SNE/MA winter flounder was
exceeded. If the overall ACL for any of
these stocks is exceeded, NMFS shall
implement the appropriate AM, as
specified in this paragraph (a)(5)(i)(D),
in a subsequent fishing year, consistent
with the APA. If reliable information is
available, the AM shall be implemented
in the fishing year immediately
following the fishing year in which the
overage occurred. Otherwise, the AM
shall be implemented in the second
fishing year after the fishing year in
which the overage occurred. For
example, if NMFS determined before
the start of fishing year 2013 that the
overall ACL for northern windowpane
flounder was exceeded by the
groundfish fishery in fishing year 2012,
the applicable AM would be
implemented for fishing year 2013. If
NMFS determined after the start of
fishing year 2013 that the overall ACL
for northern windowpane flounder was
exceeded in fishing year 2012, the
applicable AM would be implemented
for fishing year 2014. If updated catch
information becomes available
subsequent to the implementation of an
AM that indicates that an ACL was not
exceeded, the AM will be rescinded,
consistent with the Administrative
Procedure Act.
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(1) Windowpane flounder and ocean
pout. If NMFS determines the overall
ACL for either stock of windowpane
flounder or ocean pout is exceeded, as
described in this paragraph
(a)(5)(i)(D)(1), by any amount greater
than the management uncertainty
buffer, the applicable small AM area for
the stock shall be implemented, as
specified in paragraph (a)(5)(i)(D) of this
section. If the overall ACL is exceeded
by 21 percent or more, the applicable
large AM area(s) for the stock shall be
implemented, as specified in paragraph
(a)(5)(i)(D) of this section, and the
Council shall revisit the AM in a future
action. The AM areas defined below are
bounded by the following coordinates,
connected in the order listed by rhumb
lines, unless otherwise noted. Vessels
fishing with trawl gear in these areas
may only use a haddock separator trawl,
as specified in § 648.85(a)(3)(iii)(A); a
Ruhle trawl, as specified in
§ 648.85(b)(6)(iv)(J)(3); a rope separator
trawl, as specified in § 648.84(e); or any
other gear approved consistent with the
process defined in § 648.85(b)(6). If an
overage of the overall ACL for SNE/MA
windowpane flounder is as a result of
an overage of the sub-ACL allocated to
exempted fisheries pursuant to
paragraph (a)(4)(iii)(F) of this section,
the applicable AM area(s) shall be in
effect for any trawl vessel fishing with
a codend mesh size of greater than or
equal to 5-inch (12.7-cm) in other, nonspecified sub-components of the fishery,
including, but not limited to, exempted
fisheries that occur in Federal waters
and fisheries harvesting exempted
species specified in § 648.80(b)(3). If an
overage of the overall ACL for SNE/MA
windowpane flounder is as a result of
an overage of the sub-ACL allocated to
the groundfish fishery pursuant to
paragraph (a)(4)(iii)(H)(2) of this section,
the applicable AM Area(s) shall be in
effect for any limited access NE
multispecies permitted vessel fishing on
a NE multispecies DAS or sector trip. If
an overage of the overall ACL for SNE/
MA windowpane flounder is as a result
of overages of both the groundfish
fishery and exempted fishery sub-ACLs,
the applicable AM area(s) shall be in
effect for both the groundfish fishery
and exempted fisheries. If a sub-ACL for
either stock of windowpane flounder or
ocean pout is allocated to another
fishery, consistent with the process
specified at § 648.90(a)(4), and AMs are
otherwise developed for that fishery, the
groundfish fishery AM shall only be
implemented if the sub-ACL allocated to
the groundfish fishery is exceeded (i.e.,
the sector and common pool catch for a
particular stock, including the common
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pool’s share of any overage of the
overall ACL caused by excessive catch
by other sub-components of the fishery
pursuant to § 648.90(a)(5) exceeds the
common pool sub-ACL) and the overall
ACL is also exceeded.
SOUTHERN WINDOWPANE FLOUNDER § 648.90(a)(5) exceeds the common pool
AND OCEAN POUT LARGE AM AREA sub-ACL) and the overall ACL is also
exceeded.
2—Continued
Point
1 ..........
NORTHERN WINDOWPANE FLOUNDER
AND OCEAN POUT SMALL AM AREA
Point
1
2
3
4
5
6
1
..........
..........
..........
..........
..........
..........
..........
N. Latitude
41°10′
41°10′
41°00′
41°00′
40°50′
40°50′
41°10′
W. Longitude
67°40′
67°20′
67°20′
67°00′
67°00′
67°40′
67°40′
NORTHERN WINDOWPANE FLOUNDER
AND OCEAN POUT LARGE AM AREA
Point
1
2
3
4
5
6
1
..........
..........
..........
..........
..........
..........
..........
N. Latitude
42°10′
42°10′
41°00′
41°00′
40°50′
40°50′
42°10′
W. Longitude
67°40′
67°20′
67°20′
67°00′
67°00′
67°40′
67°40′
SOUTHERN WINDOWPANE FLOUNDER
AND OCEAN POUT SMALL AM AREA
Point
1
2
3
4
1
..........
..........
..........
..........
..........
N. Latitude
41°10′
41°10′
40°50′
40°50′
41°10′
W. Longitude
71°30′
71°20′
71°20′
71°30′
71°30′
SOUTHERN WINDOWPANE FLOUNDER
AND OCEAN POUT SMALL AM AREA 1
Point
1
2
3
4
5
6
1
..........
..........
..........
..........
..........
..........
..........
N. Latitude
41°10′
41°10′
41°00′
41°00′
40°50′
40°50′
41°10′
W. Longitude
71°50′
71°10′
71°10′
71°20′
71°20′
71°50′
71°50′
SOUTHERN WINDOWPANE FLOUNDER
AND OCEAN POUT LARGE AM AREA 2
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Point
1
2
3
4
5
6
7
8
..........
..........
..........
..........
..........
..........
..........
..........
N. Latitude
(1)
40°30′
40°30′
40°20′
40°20′
(3)
(4)
40°32.6′ (5)
VerDate Mar<15>2010
W. Longitude
73°30′
73°30′
73°50′
73°50′
(2)
73°58.5′
73°58.5′
73°56.4′ (5)
14:55 May 02, 2013
Jkt 229001
N. Latitude
(1 )
ATLANTIC HALIBUT TRAWL GEAR AM
AREA
W. Longitude
73°30′
Point
1 The
southern-most coastline of Long Island, NY at 73°30′ W. longitude.
2 The eastern-most coastline of NJ at 40°20′
N. latitude, then northward along the NJ coastline to Point 6.
3 The northern-most coastline of NJ at
73°58.5′ W. longitude.
4 The southern-most coastline of Long Island, NY at 73°58.5′ W. longitude.
5 The approximate location of the southwest
corner of the Rockaway Peninsula, Queens,
NY, then eastward along the southern-most
coastline of Long Island, NY (excluding South
Oyster Bay), back to Point 1.
(2) Atlantic halibut. If NMFS
determines the overall ACL for Atlantic
halibut is exceeded, as described in this
paragraph (a)(5)(i)(D)(2), by any amount
greater than the management
uncertainty buffer, the applicable AM
areas shall be implemented, as specified
in paragraph (a)(5)(i)(D) of this section.
If the overall ACL is exceeded by 21
percent or more, the applicable large
AM area(s) for the stock shall be
implemented, as specified in paragraph
(a)(5)(i)(D) of this section, and the
Council shall revisit the AM in a future
action. The AM areas defined below are
bounded by the following coordinates,
connected in the order listed by straight
lines, unless otherwise noted. Any
vessel issued a limited access NE
multispecies permit and fishing with
trawl gear in the Atlantic Halibut Trawl
Gear AM Area may only use a haddock
separator trawl, as specified in
§ 648.85(a)(3)(iii)(A); a Ruhle trawl, as
specified in § 648.85(b)(6)(iv)(J)(3); a
rope separator trawl, as specified in
§ 648.84(e); or any other gear approved
consistent with the process defined in
§ 648.85(b)(6). When in effect, a limited
access NE multispecies permitted vessel
with gillnet or longline gear may not
fish or be in the Atlantic Halibut Fixed
Gear AM Areas, unless transiting with
its gear stowed in accordance with
§ 648.23(b), or such gear was approved
consistent with the process defined in
§ 648.85(b)(6). If a sub-ACL for Atlantic
halibut is allocated to another fishery,
consistent with the process specified at
§ 648.90(a)(4), and AMs are developed
for that fishery, the groundfish fishery
AM shall only be implemented if the
sub-ACL allocated to the groundfish
fishery is exceeded (i.e., the sector and
common pool catch for a particular
stock, including the common pool’s
share of any overage of the overall ACL
caused by excessive catch by other subcomponents of the fishery pursuant to
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1
2
3
4
N. Latitude
..........
..........
..........
..........
42°00′
42°00′
41°30′
41°30′
W. Longitude
69°20′
68°20′
68°20′
69°20′
ATLANTIC HALIBUT FIXED GEAR AM
AREA 1
Point
1
2
3
4
N. Latitude
..........
..........
..........
..........
42°30′
42°30′
42°20′
42°20′
W. Longitude
70°20′
70°15′
70°15′
70°20′
ATLANTIC HALIBUT FIXED GEAR AM
AREA 2
Point
1
2
3
4
N. Latitude
..........
..........
..........
..........
43°10′
43°10′
43°00′
43°00′
W. Longitude
69°40′
69°30′
69°30′
69°40′
(3) Atlantic wolffish. If NMFS
determines the overall ACL for Atlantic
wolffish is exceeded, as described in
this paragraph (a)(5)(i)(D)(3), by any
amount greater than the management
uncertainty buffer, the applicable AM
areas shall be implemented, as specified
in paragraph (a)(5)(i)(D) of this section.
If the overall ACL is exceeded by 21
percent or more, the applicable large
AM area(s) for the stock shall be
implemented, as specified in paragraph
(a)(5)(i)(D) of this section, and the
Council shall revisit the AM in a future
action. The AM areas defined below are
bounded by the following coordinates,
connected in the order listed by straight
lines, unless otherwise noted. Any
vessel issued a limited access NE
multispecies permit and fishing with
trawl gear in the Atlantic Wolffish
Trawl Gear AM Area may only use a
haddock separator trawl, as specified in
§ 648.85(a)(3)(iii)(A); a Ruhle trawl, as
specified in § 648.85(b)(6)(iv)(J)(3); a
rope separator trawl, as specified in
§ 648.84(e); or any other gear approved
consistent with the process defined in
§ 648.85(b)(6). When in effect, a limited
access NE multispecies permitted vessel
with gillnet or longline gear may not
fish or be in the Atlantic Wolffish Fixed
Gear AM Areas, unless transiting with
its gear stowed in accordance with
§ 648.23(b), or such gear was approved
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consistent with the process defined in
§ 648.85(b)(6). If a sub-ACL for Atlantic
wolffish is allocated to another fishery,
consistent with the process specified at
§ 648.90(a)(4), and AMs are developed
for that fishery, the groundfish fishery
AM shall only be implemented if the
sub-ACL allocated to the groundfish
fishery is exceeded (i.e., the sector and
common pool catch for a particular
stock, including the common pool’s
share of any overage of the overall ACL
caused by excessive catch by other subcomponents of the fishery pursuant to
§ 648.90(a)(5) exceeds the common pool
sub-ACL) and the overall ACL is also
exceeded.
ATLANTIC WOLFFISH TRAWL GEAR AM
AREA
Point
1
2
3
4
5
6
7
8
..........
..........
..........
..........
..........
..........
..........
..........
N. Latitude
42°30′
42°30′
42°15′
42°15′
42°10′
42°10′
42°20′
42°20′
W. Longitude
70°30′
70°15′
70°15′
70°10′
70°10′
70°20′
70°20′
70°30′
ATLANTIC WOLFFISH FIXED GEAR AM
AREA 1
Point
1
2
3
4
..........
..........
..........
..........
N. Latitude
41°40′
41°40′
41°30′
41°30′
W. Longitude
69°40′
69°30′
69°30′
69°40′
ATLANTIC WOLFFISH FIXED GEAR AM
AREA 2
Point
erowe on DSK2VPTVN1PROD with RULES_2
1
2
3
4
..........
..........
..........
..........
N. Latitude
42°30′
42°30′
42°20′
42°20′
W. Longitude
70°20′
70°15′
70°15′
70°20′
(4) SNE/MA winter flounder. If NMFS
determines the overall ACL for SNE/MA
winter flounder is exceeded, as
described in this paragraph
(a)(5)(i)(D)(4), by any amount greater
than the management uncertainty
buffer, the applicable AM areas shall be
implemented, as specified in paragraph
(a)(5)(i)(D) of this section. If the overall
ACL is exceeded by 21 percent or more,
the applicable large AM area(s) for the
stock shall be implemented, as specified
in paragraph (a)(5)(i)(D) of this section,
and the Council shall revisit the AM in
a future action. The AM areas defined
below are bounded by the following
coordinates, connected in the order
VerDate Mar<15>2010
14:55 May 02, 2013
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listed by straight lines, unless otherwise
noted. Any vessel issued a limited
access NE multispecies permit and
fishing with trawl gear in the SNE/MA
Winter Flounder Trawl Gear AM Area
may only use a haddock separator trawl,
as specified in § 648.85(a)(3)(iii)(A); a
Ruhle trawl, as specified in
§ 648.85(b)(6)(iv)(J)(3); a rope separator
trawl, as specified in § 648.84(e); or any
other gear approved consistent with the
process defined in § 648.85(b)(6). If a
sub-ACL for SNE/MA winter flounder is
allocated to another fishery, consistent
with the process specified at
§ 648.90(a)(4), and AMs are developed
for that fishery, the groundfish fishery
AM shall only be implemented if the
sub-ACL allocated to the groundfish
fishery is exceeded (i.e., the sector and
common pool catch for a particular
stock, including the common pool’s
share of any overage of the overall ACL
caused by excessive catch by other subcomponents of the fishery pursuant to
§ 648.90(a)(5) exceeds the common pool
sub-ACL) and the overall ACL is also
exceeded.
SNE/MA WINTER FLOUNDER TRAWL
GEAR AM AREA 4—Continued
Point
3
4
5
6
7
N. Latitude
..........
..........
..........
..........
..........
(1 )
41°00′
41°00′
41°10′
41°10′
W. Longitude
69°00′
69°00′
69°10′
69°10′
69°20′
1 The southwest-facing boundary of Closed
Area I.
(E) [Reserved].
(ii) AMs if the overall ACL for a
regulated species or ocean pout stock is
exceeded. If the catch of any stock of
regulated species or ocean pout by
vessels fishing outside of the NE
multispecies fishery; vessels fishing in
state waters outside of the FMP; or
vessels fishing in exempted fisheries, as
defined in this part, exceeds the subcomponent of the ACL for that stock
specified for such fisheries pursuant to
paragraphs (a)(4)(iii)(A) through (G) of
this section, and the overall ACL for that
stock is exceeded, then the amount of
the overage of the overall ACL for that
stock due to catch from vessels fishing
SNE/MA WINTER FLOUNDER TRAWL outside of the NE multispecies fishery
GEAR AM AREA 1
shall be distributed among components
of the NE multispecies fishery based
Point
N. Latitude
W. Longitude
upon each component’s share of that
stock’s ACL available to the NE
1 .......... 41°10′
71°40′ (1)
multispecies fishery pursuant to
2 .......... 41°10′
71°20′
paragraph (a)(4)(iii)(H) of this section.
3 .......... 41°00′
71°20′
Each component’s share of the ACL
4 .......... 41°00′
71°40′
overage for a particular stock would be
1 Point 1 connects to Point 2 along 41°10′N
then added to the catch of that stock by
or the southern coastline of Block Island, RI,
each component of the NE multispecies
whichever is further south.
fishery to determine if the resulting sum
SNE/MA WINTER FLOUNDER TRAWL of catch of that stock for each
component of the fishery exceeds that
GEAR AM AREA 2
individual component’s share of that
stock’s ACL available to the NE
Point
N. Latitude
W. Longitude
multispecies fishery. If the total catch of
that stock by any component of the NE
1 .......... 41°20′
70°30′
2 .......... 41°20′
70°20′
multispecies fishery exceeds the amount
3 .......... 41°00′
70°20′
of the ACL specified for that component
4 .......... 41°00′
70°30′
of the NE multispecies fishery pursuant
to paragraph (a)(4)(iii)(H) of this section,
SNE/MA WINTER FLOUNDER TRAWL then the AMs specified in paragraphs
(a)(5)(i)(A) through (C) of this section
GEAR AM AREA 3
shall take effect, as applicable. If the
catch of any stock of regulated species
Point
N. Latitude
W. Longitude
or ocean pout by vessels outside of the
FMP exceeds the sub-component of the
1 .......... 41°20′
69°20′
2 .......... 41°20′
69°10′
ACL for that stock specified pursuant to
3 .......... 41°10′
69°10′
paragraphs (a)(4)(iii)(A) through (C) of
4 .......... 41°10′
69°20′
this section, but the overall ACL for that
stock is not exceeded, even after
SNE/MA WINTER FLOUNDER TRAWL consideration of the catch of that stock
by other sub-components of the fishery,
GEAR AM AREA 4
then the AMs specified in this
paragraph (a)(5)(ii) shall not take effect.
Point
N. Latitude
W. Longitude
(iii) AMs if the incidental catch cap
1 .......... 41°20′
69°20′
for the Atlantic herring fishery is
2 .......... 41°20′
(1)
exceeded. At the end of the NE
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multispecies fishing year, NMFS shall
evaluate Atlantic herring fishery catch
using VTR, VMS, IVR, observer data,
and any other available information to
determine whether a haddock incidental
catch cap has been exceeded based
upon the cumulative catch of vessels
issued an Atlantic herring permit and
fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3. If
the catch of haddock by all vessels
issued an Atlantic herring permit and
fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3,
exceeds the amount of the incidental
catch cap specified in § 648.85(d) of this
section, then the appropriate incidental
catch cap shall be reduced by the
overage on a pound-for-pound basis
during the following fishing year. Any
overage reductions shall be announced
by the Regional Administrator in the
Federal Register, accordance with the
Administrative Procedure Act, prior to
the start of the next NE multispecies
fishing year after which the overage
VerDate Mar<15>2010
14:55 May 02, 2013
Jkt 229001
occurred, if possible, or as soon as
possible thereafter if the overage is not
determined until after the end of the NE
multispecies fishing year in which the
overage occurred.
*
*
*
*
*
■ 15. In § 648.201, revise paragraph
(a)(2) to read as follows:
§ 648.201
AMs and harvest controls.
*
*
*
*
*
(a) * * *
(2) When the Regional Administrator
has determined that the GOM and/or GB
incidental catch cap for haddock in
§ 648.85(d) has been caught, no vessel
issued a Federal Atlantic herring permit
and fishing with midwater trawl gear in
the applicable Accountability Measure
(AM) Area, i.e., the Herring GOM
Haddock AM Area or Herring GB
Haddock AM Area, as defined in
§ 648.86(a)(3)(ii)(A)(2) and (3) of this
part, may not fish for, possess, or land
herring in excess of 2,000 lb (907.2 kg)
per trip in or from the applicable AM
PO 00000
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Fmt 4701
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26169
Area, unless all herring possessed and
landed by a vessel were caught outside
the applicable AM Area and the vessel
complies with the gear stowage
provisions specified in § 648.23(b) while
transiting the applicable AM Area.
Upon this determination, the haddock
possession limit is reduced to 0 lb (0 kg)
in the applicable AM area, for a vessel
issued a Federal Atlantic herring permit
and fishing with midwater trawl gear or
for a vessel issued an All Areas Limited
Access Herring Permit and/or an Areas
2 and 3 Limited Access Herring Permit
fishing on a declared herring trip,
regardless of area fished or gear used, in
the applicable AM area, unless the
vessel also possesses a Northeast
multispecies permit and is operating on
a declared (consistent with § 648.10(g))
Northeast multispecies trip.
*
*
*
*
*
[FR Doc. 2013–10402 Filed 4–30–13; 4:15 pm]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 78, Number 86 (Friday, May 3, 2013)]
[Rules and Regulations]
[Pages 26117-26169]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10402]
[[Page 26117]]
Vol. 78
Friday,
No. 86
May 3, 2013
Part II
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
50 CFR Part 648
-----------------------------------------------------------------------
Magnuson-Stevens Fishery Conservation and Management Act Provisions;
Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 48; Final Rule
Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and
Regulations
[[Page 26118]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 120814336-3408-02]
RIN 0648-BC27
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 48
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: Through this interim final rule, NMFS announces that it
partially approves Framework Adjustment 48 to the NE Multispecies
Fishery Management Plan (FMP) and implements the approved measures in
the regulations. Framework 48 is the first of two parallel and related
actions developed by the New England Fishery Management Council
(Council) to respond to updated stock status information and to adjust
other management measures in the NE multispecies (groundfish) fishery
beginning in fishing year (FY) 2013. This action implements new status
determination criteria for Gulf of Maine (GOM) cod, Georges Bank (GB)
cod, Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder,
and white hake based on new benchmark assessments completed for these
stocks in 2012 and 2013. NMFS is approving and implementing updated
status determination criteria for white hake through this interim final
rule and accepting further comment on this measure since it was not
available for comment in the Framework 48 proposed rule. NMFS will
publish a subsequent final rule to respond to any comments received, if
necessary. Through this action, NMFS has also approved and is
implementing the following Framework 48 measures: Elimination of
dockside monitoring requirements for the groundfish fishery; lower
minimum fish sizes for several groundfish stocks; clarified goals and
performance standard for groundfish monitoring programs; revisions to
the allocation of GB yellowtail flounder to the scallop fishery; and
establishment of sub-annual catch limits (ACLs) of GB yellowtail
flounder and SNE/MA windowpane flounder for the scallop and other non-
groundfish fisheries. NMFS also approved revisions to recreational and
commercial accountability measures (AMs), including amendments to
existing AMs for windowpane flounder, ocean pout, and Atlantic halibut,
and new ``reactive'' AMs for Atlantic wolffish and SNE/MA winter
flounder, to address a remand by the U.S. District Court of Appeals.
NMFS disapproved some measures in Framework 48: A provision for cost-
sharing of monitoring costs between the industry and NMFS; a provision
to delay industry-funded monitoring to FY 2014; finer scale discard
rate strata for GB yellowtail flounder; and a provision to remove
requirements for groundfish trawlers to stow their gear when transiting
closed areas. Through this interim final rule, NMFS also withdraws a
proposed correction to the regulations specific to monitoring of the
Eastern U.S./Canada quotas, and will be accepting additional public
comment on this issue. These measures are necessary to meet the
requirements of the FMP and the Magnuson-Stevens Act, most notably
preventing overfishing, ensuring that management measures are based on
the best available science, and mitigating, to the extent practicable,
potential negative economic impacts from reductions in catch limits
anticipated for fishing year FY 2013.
DATES: Effective May 1, 2013, except for the amendment to Sec. 648.84,
which is effective July 1, 2013. Comments on the interim final status
determination criteria for white hake or U.S./Canada quota monitoring
methods must be received by June 3, 2013.
ADDRESSES: You may submit comments on the new status determination
criteria for white hake or U.S./Canada quota monitoring, identified by
NOAA-NMFS-2013-0050, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0050, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to John K. Bullard, Regional
Administrator, National Marine Fisheries Service, 55 Great Republic
Drive, Gloucester, MA 01930.
Fax: (978) 281-9135; Attn: Melissa Hooper.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
Copies of Framework 48, its Regulatory Impact Review (RIR), the
environmental assessment (EA) prepared for this action, and the Final
Regulatory Flexibility Analysis (FRFA) prepared by the Council are
available from Thomas Nies, Executive Director, New England Fishery
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The
FRFA assessing the impacts of the measures on small entities and
describing steps taken to minimize any significant economic impact on
such entities consists of the Initial Regulatory Flexibility Analysis
(IRFA), preamble, and the summary of impacts and alternatives contained
in the Classification section of this final rule and Framework 48. The
Framework 48 EA/RIR/IRFA are also accessible via the Internet at http://www.nefmc.org/nemulti/index.html or http://www.nero.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Melissa Hooper, Fishery Policy
Analyst, phone: 978-281-9166, fax: 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP specifies management measures for 16 species of groundfish
in Federal waters off the New England and Mid-Atlantic coasts,
including both large-mesh and small-mesh species. Small-mesh species
include silver hake (whiting), red hake, offshore hake, and ocean pout;
and large-mesh species (also referred to as ``regulated species'')
include Atlantic cod, haddock, yellowtail flounder, pollock, American
plaice, witch flounder, white hake, windowpane flounder, Atlantic
halibut, winter flounder, redfish, and Atlantic wolffish. Large-mesh
species, which are referred to as ``regulated species,'' are divided
into 19 fish stocks, and along with ocean pout, comprise the groundfish
complex of 20 stocks managed under the NE Multispecies FMP.
[[Page 26119]]
Amendment 16 to the FMP (Amendment 16) established a process for
setting acceptable biological catches (ABCs) and ACLs for regulated
species and ocean pout, as well as distributing the available catch
among the various components of the groundfish fishery. Amendment 16
also established AMs for these 20 groundfish stocks in order to prevent
overfishing of these stocks and correct or mitigate any overages of the
ACLs. Framework 44 to the FMP (Framework 44) set the ABCs and ACLs for
FYs 2010-2012. In 2011, Framework 45 to the FMP (Framework 45) revised
the ABCs and ACLs for five stocks for FYs 2011-2012. Framework 47 to
the FMP (Framework 47) updated specifications for most stocks for FYs
2012-2014 and modified management measures in the fishery after more
than 1 year under ACLs and AMs.
Framework 48 is one of two actions developed by the Council to
respond to benchmark and assessment updates completed for all
groundfish stocks in 2012 and 2013. Updated information in these
assessments requires revisions to the status determination criteria for
GOM cod, GB cod, SNE/MA yellowtail flounder, and white hake and
implementation of updated ABCs and ACLs for most stocks for FYs 2013-
2015. These measures are necessary to prevent overfishing and
facilitate the rebuilding of groundfish stocks as required by the FMP.
In Framework 48, the Council proposed administrative changes to the FMP
to make way for Framework 50, which specifies ABCs and ACLs for all
stocks for FY 2013-2015. The Council also included several measures in
Framework 48 intended to mitigate negative economic impacts to the
groundfish fishery anticipated from the substantial reductions in catch
limits proposed in Framework 50 to end overfishing. Framework 48 also
implements AMs for Atlantic halibut, Atlantic wolffish, and SNE/MA
winter flounder in response to a Court Order and remand in Oceana v.
Locke et al. 831 F.Supp.2d 95 (D.D.C. 2011) that held that so-called
``reactive'' AMs had not been developed for the 6 stocks not allocated
to sectors (``non-allocated stocks'') in Amendment 16. Framework 48
recommended reactive AMs for 3 of these stocks, for which reactive AMs
had not been established since Amendment 16. A more extensive
discussion of the development of Frameworks 48 and 50 is available in
the proposed rules for these two actions (78 FR 18188; March 25, 2013
and 78 FR 19368; March 29, 2013, respectively) and is not repeated
here. NMFS also proposed several corrections to the NE multispecies
regulations through the Framework 48 proposed rule under the authority
of section 305(d) of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), which allows the Secretary of
Commerce to implement regulations necessary to ensure that fishery
management plans or amendments are carried out consistent with the
Magnuson-Stevens Act. These changes are not part of Framework 48, but
are necessary to clarify existing regulations and achieve the
objectives of the FMP.
Public comments were accepted on the Framework 48 proposed rule
through April 9, 2013. After review of public comments, NMFS has
partially approved Framework 48 as consistent with the goals and
objectives of the NE Multispecies FMP, and the requirements of the
Magnuson-Stevens Act and other applicable law.
Disapproved Measures
This section summarizes the Framework 48 measures NMFS has
disapproved as not consistent with goals and objectives of the NE
Multispecies FMP or the requirements of the Magnuson-Stevens Act and
other applicable law. NMFS also withdraws a correction to the NE
multispecies regulations that NMFS proposed in the Framework 48
proposed rule regarding accounting of catch against quotas established
for the Eastern U.S./Canada Management Area, for reasons discussed
below.
1. Delay Industry At-Sea Monitoring Cost Responsibility
Framework 48 proposed to delay sectors' responsibility to implement
and pay for their own at-sea monitoring programs to FY 2014. The
Council included this measure in Framework 48 out of concern that the
industry would not be able to support this cost burden in FY 2013 due
to the substantial catch reductions proposed in Framework 50. Coverage
levels would instead be set at the level that NMFS can fund. The
Council proposed a similar measure in Framework 45, which NMFS
disapproved due to concerns that there would not be Federal funds to
ensure adequate monitoring of sector operations. A complete description
of the development this measure was included in the Framework 48
proposed rule (Item 8) and is not repeated here.
NMFS is disapproving this measure as it did in Framework 45 because
it is inconsistent with the requirements of the FMP and the Magnuson-
Stevens Act. However, due to fishermen's concerns about their ability
to pay for at-sea monitoring costs in FY 2013, NMFS intends to cover
100 percent of the costs of sector at-sea monitoring once again in FY
2013 using the NMFS At-sea Monitoring Program. But, relying on NMFS
appropriations to determine an at-sea monitoring coverage rate does not
ensure that coverage will be sufficient to monitor sector annual catch
entitlements (ACEs) or to meet the purpose and goals for sector
monitoring described in Amendment 16 and Framework 48. Because NMFS
funding depends on Congressional appropriations, funding levels
fluctuate, and NMFS cannot guarantee sufficient funding to meet the
coverage levels required by the FMP to monitor ACLs and sector ACEs. If
sector at-sea monitoring depended on NMFS funding alone and that
funding fell short of required coverage levels, NMFS may not be able to
reliably estimate total catch, undermining the effectiveness of ACLs
and sector ACEs to prevent overfishing and facilitate the rebuilding of
groundfish stocks as required by National Standard 1 and section
303(a)(1) of the Magnuson-Stevens Act. NMFS was able to locate funding
to provide the NMFS At-sea Monitoring Program again in FY 2013, but
such funding is not certain. Without additional appropriations to
support sector monitoring specifically, relying solely on the Federal
Government to provide sector at-sea monitoring coverage could also
undermine other programs. Inadequate funding could potentially force
NMFS to spread existing resources too thin, undermining the Standard
Bycatch Reporting Methodology (SBRM) coverage requirements of section
303(a)(11) and information used to assess Northeast fish stocks. Thus,
NMFS has disapproved this measure in Framework 48. Sectors will be
responsible for any costs of at-sea monitoring that are not covered by
Federal funding in FY 2013.
2. At-Sea Monitoring Cost-Sharing
To serve as a more long-term solution to the cost burden of at-sea
monitoring to sectors, Framework 48 proposed a mechanism for sharing of
at-sea monitoring costs between sectors and NMFS. Framework 48 proposed
that the industry would only ever be responsible for paying the direct
costs of at-sea monitoring, specifically the daily salary of the at-sea
monitor. All other programmatic costs would be the responsibility of
NMFS, including, but not limited to: Briefing, debriefing, training and
certification costs (salary and non-salary); sampling design
development; data storage, management and security; data quality
assurance and
[[Page 26120]]
control; administrative costs; maintenance of monitoring equipment; at-
sea monitor recruitment, benefits, insurance and taxes; logistical
costs associated with deployment; and at-sea monitor travel and
lodging. This measure was intended to reduce the cost burden of at-sea
monitoring to sectors and thereby increase their profitability.
NMFS has disapproved this cost-sharing measure because it is not
consistent with other applicable laws as developed. Specifically, the
Anti-Deficiency Act and other appropriations law prohibits Federal
agencies from obligating the Federal government except through
appropriations and from sharing the payment of government obligations
with private entities. Framework 48 proposed to require NMFS to pay for
some portion of the costs of at-sea activities, such as logistical
costs generated by deployment, which are outside its statutory
obligations under the Magnuson-Stevens Act. As written, this measure
would also have required NMFS and sectors to share payment of
obligations defined as belonging to one or the other. For example,
Framework 48 proposed to require NMFS to pay some costs related to at-
sea activities, such as benefits and insurance for at-sea monitors,
while sectors would pay other portions of at-sea costs, like the salary
for at-sea monitors. Because such action would be prohibited under the
law, NMFS has disapproved this measure in Framework 48.
Although this measure was not approvable as developed, NMFS shares
the Council and industry's concern about the ability of sectors to bear
the full costs of monitoring in future fishing years. NMFS believes
this approach to cost sharing, which defines the items that NMFS versus
sectors should be responsible for, could be viable if restructured and
may be worth pursuing in a future action. NMFS is already working with
the New England and Mid-Atlantic Councils' joint Herring-Mackerel Plan
Development Team (PDT)/Fishery Management Action Team (FMAT) to pursue
cost-sharing options such as this one for those fisheries for FY 2014.
The Council could consider including the NE Multispecies FMP in this
joint effort to develop a workable and consistent cost-sharing
mechanism for the Northeast region.
3. GB Yellowtail Flounder Management Measures
Framework 48 proposed to change the stratification of discard
estimates for sectors for GB yellowtail flounder, by splitting the GB
yellowtail flounder trawl discard strata between statistical area 522
and statistical areas 525/561/562. This measure was intended to revise
sector discard rates to more closely reflect actual discards of
yellowtail flounder in different areas of Georges Bank and potentially
lengthen the fishing season for sector vessels in those areas. Based on
public comment, NMFS has disapproved this measure in Framework 48,
because it would complicate and increase the cost and burden of
monitoring and potentially increase uncertainty of catch estimates
without any measurable benefits for sectors. Accordingly, this measure
is inconsistent with or may lead to inconsistency with National
Standards 5 and 7 of the Magnuson Stevens Act. As more fully discussed
below, because of the added complications of administering this
measure, it may increase costs more than it provides benefits to the
fishing industry or the efficient management and monitoring of catches.
Although finer scale strata would allow discard rates to more closely
reflect actual discard rates of yellowtail flounder in different parts
of Georges Bank, NMFS does not believe this measure would have any real
benefits for sectors that could not be achieved with existing discard
rate strata. A separate discard rate in statistical area 522 could
benefit an individual vessel with a lower GB yellowtail flounder
discard rate that would not be influenced by higher discards by other
vessels in its sector fishing elsewhere on Georges Bank. However, the
sector's fishing season on GB would still be limited by the total catch
of GB yellowtail flounder by all its member vessels. A finer stratum
would not eliminate the need for a sector to manage discards of
yellowtail flounder by all its vessels on Georges Bank to prevent an
early end to their fishing season.
In contrast, the proposed measure could have real effects on the
administrative burden for both NMFS and sectors that NMFS believes are
not justified in light of the lack of real benefits from this measure.
Some sector representatives and members of sectors raised these
concerns in public comments on the Framework 48 proposed rule. Both
sectors and NMFS would have to modify and reprogram quota monitoring
programs and reports to accommodate the new strata, increasing the
administrative burden for sector managers and NMFS, without any
corresponding benefits for sectors, which could reduce efficiency
inconsistent with National Standards 5 and 7. Some sectors have
developed software to calculate and manage catch and compile sector
weekly reports to NMFS. These sectors would have to retain programmers
to reprogram this software to accommodate the new strata and method.
The administrative burden to generate sector weekly reports could be
even greater for sector managers that do not use software to compile
their sector's reports, but rather calculate catch manually on a weekly
basis. NMFS is also concerned about how this revised strata, combined
with other changes to the discard rate method in FY 2013, will affect
the variance of discard rates and thereby affect our ability to
reliably estimate catch to ensure that overfishing is not occurring.
Concerns that this measure could further complicate monitoring and
increase uncertainty of catch estimates by creating an incentive to
misreport catches of GB yellowtail flounder is also justified. There is
a potential for this measure to create an incentive for sector vessels
fishing inside and outside statistical area 522 without an observer to
misreport GB yellowtail catch from outside area 522 as from inside area
522 in order to get a lower discard rate, thereby jeopardizing NMFS's
ability to ensure that catches are consistent with preventing
overfishing and rebuilding fish stocks. This could potentially inflate
area 522 GB yellowtail discard estimates and negate any benefit of this
measure. Thus, out of concern that this measure could increase the
uncertainty of catch estimates and the costs of monitoring and
administration of sectors without any corresponding benefits to
sectors, NMFS has disapproved this measure in Framework 48.
4. Requirement to Stow Trawl Gear While Transiting
The regulations currently specify that fishing gear must be stowed
in a specific way, as described at 50 CFR 648.23(b), when transiting
closed areas to facilitate the enforcement of closed areas at sea.
Framework 48 proposed to remove this requirement for only trawl vessels
on a groundfish trip because the Council believed that these measures
are no longer necessary with the use of the vessel monitoring system
(VMS) on all limited access multispecies vessels.
After consideration of public comments received on this measure,
NMFS has disapproved this measure in Framework 48 and is maintaining
the requirements for all vessels to stow their gear when transiting
closed areas on the basis that it may lead to difficulties in detecting
and prosecuting unlawful fishing in closed areas, which would undermine
the effectiveness of these areas to achieve the objectives for which
[[Page 26121]]
they were established as conservation and management measures in the
FMP, including the protection of spawning and juvenile fish, habitat,
and protected species. To the extent that closed areas were established
to comply with sections 303(a)(1) and (7), and National Standard 9 of
the Magnuson-Stevens Act to rebuild or ensure the long-term
sustainability of fish stocks and fisheries, to minimize the adverse
effects of fishing on habitat, or minimize bycatch of certain stocks or
protected species, undermining these measures would be inconsistent
with these provisions. This measure also would have been inconsistent
with National Standard 4 of the Magnuson-Stevens Act requiring measures
to be fair and equitable because it does not extend the safety benefits
to other fisheries without a clear reason for doing so. There is
insufficient justification in Framework 48 explaining why these
measures were no longer necessary to enforce the prohibition on fishing
in closed areas or why VMS data is a sufficient alternative. As the
U.S. Coast Guard (USCG) noted in its comments on this measure, VMS is
an effective tool to enforce closed areas when transiting is
prohibited, but is not sufficient to document possible fishing activity
in a closed area when transiting is allowed. The gear stowage
requirements are designed to increase the time required to set and
recover gear and hide fishing activity. The combination of gear stowage
and VMS requirements are useful for prosecution of closed area
incursions. Thus, NMFS and the USCG are seriously concerned that
eliminating trawl gear stowage requirements for only groundfish vessels
would undermine enforcement of the prohibition on fishing in closed
areas and thereby the conservation benefits of closed areas. By
eliminating the gear stowage requirements for only groundfish vessels,
this measure would complicate enforcement for the USCG and enforcement
personnel, and compliance with these requirements for vessels fishing
in multiple fisheries, thereby potentially further undermining
enforcement efforts. Abuse of this exemption by groundfish vessels or
vessels participating in other fisheries without effective enforcement
would undermine the conservation objectives of closed areas, which
would undermine the goals and objectives of the FMP and the
requirements of the Magnuson-Stevens Act for effective conservation and
management measures to rebuild overfished stocks and to minimize the
adverse effects of fishing on habitat. Although this measure would have
some safety benefits, the proposed measure does not meet the criteria
of a measure that reduces risk while meeting the needs of conservation
and management, as required by National Standard 10. The Council also
had available to it alternative modifications to the gear stowage
requirements, recommended by its VMS/Enforcement Committee, that would
have addressed safety issues for all vessels, while maintaining the
integrity of gear stowage requirements for enforcement of the
prohibition on fishing in closed areas. However, the Council chose to
recommend these modifications only for other FMPs, and instead to
eliminate the requirements entirely for groundfish trawlers, without
addressing the continued need of these measures to satisfy requirements
of the Magnuson-Stevens Act. For these reasons, NMFS has disapproved
this measure in Framework 48.
Although NMFS must disapprove this measure in Framework 48, NMFS
does remain concerned about the safety risks of the existing trawl gear
stowage requirements and believes these issues should be addressed for
all vessels. NMFS believes that the modifications put forward by the
Council's VMS/Enforcement Committee would address these safety issues,
while meeting the needs of conservation and management. NMFS is
considering initiating a separate rulemaking, working with both the New
England and Mid-Atlantic Councils, which would propose modifications to
the gear stowage requirements to make them safer for all vessels in all
FMPs. The regulations at Sec. 648.23(b)(5) allow the Regional
Administrator to specify a method of stowage in writing and in a
Federal Register notice. NMFS believes that this approach would be the
most expeditious method to address the safety issues as soon as
possible, as opposed to a joint Council action.
5. Correction to Eastern U.S./Canada Quota Monitoring
In the Framework 48 proposed rule, NMFS proposed a correction to
the regulations governing fishing activity in the Eastern U.S./Canada
Area under 305(d) authority of the Magnuson-Stevens Act based on its
determination that the correction was needed to bring the measure into
compliance with the perceived Council intent in Amendment 16. The
regulations at Sec. 648.85(a)(3)(ii)(A) currently state that all catch
of cod, haddock, and yellowtail flounder caught on a trip that fishes
both inside and outside of the Eastern U.S./Canada Area shall apply to
the U.S./Canada total allowable catches (TACs) (in the case of cod and
haddock, the Eastern U.S./Canada TACs). This method for quota
monitoring was implemented through Framework 42 as a precautionary way
to estimate catch to ensure U.S./Canada TACs would not be exceeded,
while allowing vessels the flexibility to fish both inside and outside
the Eastern U.S./Canada Area on the same trip. Amendment 16 allocated
each sector and the common pool a portion of the Eastern U.S./Canada
TACs, but did not specifically address whether these allocations should
still be monitored using the precautionary Framework 42 method. NMFS's
perceived interpretation was that Amendment 16 intended statistical
areas reported on VMS catch reports and vessel trip reports (VTRs) to
be used to apportion catch to specific stock allocations. This is how
NMFS has been monitoring sector and common pool catch of GB cod,
haddock, and yellowtail since FY 2010. Despite being clear about NMFS's
perceived interpretation in the Amendment 16 preamble, the original
provision implemented by Framework 42 was inadvertently left in the
regulations at Sec. 648.85(a)(3)(ii)(A) by the Amendment 16 final
rule. In deeming the regulations to be consistent with the Amendment,
however, the Council did not object to the old language, presumably
because it reflected its actual intent, as confirmed by the Council's
comments on this action. Through the Framework 48 proposed rule, NMFS
proposed to revise the regulations to remove the text that states all
cod, haddock, and yellowtail flounder on multi-area trips must be
applied to Eastern U.S./Canada allocations.
During the public comment period, NMFS received a letter from the
Council opposing NMFS's proposed change to the regulations. The Council
questioned NMFS's authority to make this change without explicit
Council action, and asked NMFS to disapprove this change, particularly
in light of continued concerns of misreporting of catches of Eastern GB
stocks. At the request of the Council, NMFS is withdrawing this change
to the regulations and will return to the Framework 42 method of quota
monitoring because it reflects the Council's intent. Thus, for common
pool vessels fishing both inside and outside the Eastern U.S./Canada
Area, all catch of cod and haddock on that trip will be counted against
the applicable Eastern U.S./Canada TAC. For sector vessels fishing both
inside and outside the Eastern U.S./Canada Area, all catch of cod and
haddock will be counted against its sector's allocations for Eastern GB
cod and haddock. How GB
[[Page 26122]]
yellowtail flounder should be handled is less clear. Framework 42 and,
subsequently, the regulations specify all yellowtail flounder caught on
trips into the Eastern U.S./Canada area should be applied to the GB
yellowtail flounder TAC. Based on a strict reading of Framework 42,
yellowtail flounder caught on trips into the Western U.S./Canada Area
and the Gulf of Maine or Southern New England would appear to be
allocated according to the vessel's VTRs. At the time Framework 42 was
developed trips limits were lower in the CC/GOM and SNE/MA yellowtail
flounder stock areas and if a vessel fished in either area and the
Georges Bank area the more restrictive trip limit applied. As a result,
there was little incentive to fish in both the Western U.S./Canada Area
and these other stock areas on the same trip. Although these incentives
may have changed, this provision was not explicitly revised by
Amendment 16, so NMFS believes it must only count all GB yellowtail
flounder on trips into the Eastern U.S./Canada Area against the
applicable U.S./Canada TAC, and yellowtail flounder on trips into the
Western U.S./Canada Area would continue to be allocated according to
the vessel's VTRs.
It is also not clear how discard rates should be applied in these
situations. At the time Framework 42 was developed, there were no
sector-stock-gear specific discard rates and so Framework 42 and its
implementing regulations did not address how these rates should be
applied on trips into the Eastern U.S./Canada Area. Amendment 16 also
did not provide any explicit guidance on this matter. Since the
Framework 42 measure was intended to address possible misreporting of
vessel-reported data, NMFS believes it is appropriate to apply observed
discards and kept catch from these trips in the computation of discard
rates according to the area fished as recorded in observer data.
However, NMFS is still exploring how discard rates should be applied on
unobserved trips.
Amendment 16, and the regulations implementing Amendment 16 at
Sec. 648.87(b)(1)(iii), requires that NMFS use all available
information, including the Interactive Voice Response system (IVR),
VTR, VMS, at the end of the fishing year to determine whether a sector
exceeded any of its ACEs. NMFS must reconcile this measure with the
requirement in Framework 42 to count all catch on trips into the
Eastern U.S./Canada Area against U.S./Canada TACs. In absence of any
explicit language in Amendment 16 as to how to handle this, NMFS
believes it would be consistent with both provisions to count all cod,
haddock, and yellowtail on trips declared into the Eastern U.S./Canada
Area on VMS against the U.S./Canada TACs inseason for the purposes of
determining whether the Eastern U.S./Canada Area should be closed, or
that a sector has reached its ACE and must stop fishing. For the
purposes of year-end reconciliation of sector catches, NMFS will use
VMS activity data to determine whether a vessel that declared into the
Eastern U.S./Canada Area actually may have fished there and catch from
a trip with no VMS activity indicative of fishing in the Eastern U.S./
Canada Area would be reapportioned according to the vessel's VTRs. NMFS
is still exploring what criteria should be used to define fishing
activity from VMS data and is interested in public comment on this
measure.
Because these details were not available for the public to comment
on in the Framework 48 proposed rule, NMFS is publishing this measure
as an interim final rule and will be collecting additional public
comment on it.
Approved Measures
This section summarizes the Framework 48 measures NMFS has approved
as consistent with goals and objectives of the NE Multispecies FMP, and
the requirements of the Magnuson-Stevens Act and other applicable law.
This section also contains corrections to inadvertent errors in the NE
multispecies regulations, under the authority of section 305(d) of the
Magnuson-Stevens Act, that are necessary to accurately and effectively
implement the requirements of the NE Multispecies FMP.
6. Status Determination Criteria for GOM and GB Cod, and SNE/MA
Yellowtail Flounder
An assessment for SNE/MA yellowtail flounder was completed in June
2012. New assessments were also completed for GOM and GB cod in
December 2012. The results of both models accepted in the December
2012, GOM cod assessment indicated that overfishing is occurring and
the stock is overfished. In addition, the assessment for GB cod
indicated that overfishing is occurring and the stock is overfished.
The status of SNE/MA yellowtail flounder was less clear from the June
2012 assessment. The assessment considered two recruitment scenarios
that resulted in very different pictures about the stock's status, but
favored the recent recruitment scenario, which indicated that the stock
was not experiencing overfishing and was rebuilt. A more detailed
discussion of the assessment for these three stocks can be found in
Item 1 of the preamble of the proposed rule.
NMFS has approved the proposed status determination criteria for
these three stocks, because the results of these assessments represent
the best scientific information available for management. Incorporating
this information into the FMP will allow the specification of
appropriate ABCs and ACLs and other management measures beginning in FY
2013 to prevent overfishing, and continue rebuilding GOM and GB cod, as
required by the Magnuson-Stevens Act. The final revised status
determination criteria are presented in Table 1. Numerical estimates of
these criteria are presented in Table 2. There are two sets of status
determination criteria approved for GOM cod because two models were
accepted at the benchmark assessment in December 2012, as described
above. Although two assessment models were approved, there is only one
numerical estimate for the maximum fishing mortality threshold for GOM
cod.
Table 1--Revised Status Determination Criteria for SNE/MA Yellowtail Flounder, GOM and GB Cod
----------------------------------------------------------------------------------------------------------------
Minimum biomass Maximum fishing
Stock Biomass target threshold mortality threshold
----------------------------------------------------------------------------------------------------------------
SNE/MA yellowtail flounder........... SSB40%MSP.............. \1/2\ Btarget.......... F40%MSP
GOM cod.............................. SSB40%MSP.............. \1/2\ Btarget.......... F40%MSP
GB cod............................... SSB40%MSP.............. \1/2\ Btarget.......... F40%MSP
----------------------------------------------------------------------------------------------------------------
SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY =
maximum sustainable yield.
[[Page 26123]]
Table 2--Numerical Estimates of the Revised Status Determination Criteria for SNE/MA Yellowtail Flounder, GOM
and GB Cod
----------------------------------------------------------------------------------------------------------------
Maximum
Biomass fishing
Stock target (mt) mortality MSY (mt)
threshold
----------------------------------------------------------------------------------------------------------------
SNE/MA yellowtail flounder...................................... 2,995 0.31 773
GOM cod (M=0.2 model)........................................... 54,743 0.18 9,399
GOM cod (Mramp model)........................................... 80,200 .............. 13,786
GB cod.......................................................... 186,535 0.18 30,622
----------------------------------------------------------------------------------------------------------------
7. Status Determination Criteria for White Hake
As discussed in Item 1 in the preamble of the Framework 48 proposed
rule, a benchmark assessment for white hake was scheduled to be
completed in February 2013, but the results of the assessment were not
yet available at the time of proposed rule publication. This meant that
NMFS could not propose new status determination criteria for white
hake, even though the Council had recommended and analyzed updated
status determination criteria in Framework 48 in case the assessment
results became available in time for rulemaking. Thus, NMFS did not
propose or solicit public comment on revised status determination
criteria for white hake in the Framework 48 proposed rule, but
indicated that it may take action at a later date based on the results
of the assessment when they became available.
The assessment summary report for Stock Assessment Review Committee
(SARC) 56 was published on April 2, 2013 (http://www.nefsc.noaa.gov/publications/crd/crd1304/). The results indicate that the white hake
stock is not overfished or subject to overfishing. The stock is
estimated to have been at 83 percent of the rebuilding biomass target
in 2011, the most recent year of data incorporated into the assessment.
The stock remains under a formal rebuilding program with a rebuilding
target date of 2014. Current stock projections from the SARC 56
assessment indicate that the stock is projected to rebuild in 2014. The
new stock status for white hake is a change from the previous benchmark
assessment, conducted in 2008 as part of the Groundfish Assessment
Review Meeting (GARM) III. The GARM III assessment indicated the white
hake stock was both overfished and subject to overfishing. The SARC 56
assessment determined that the change in stock biomass since 2007 is
the result of low fishing mortality and near long-term average
recruitment. More plainly stated, the changes are not the results of
changes in the assessment model or methods, but reflective of the
changes in the data that has been collected and integrated in the
interim since the last benchmark assessment in 2008. Additional
information regarding the February assessment data, peer review
proceedings, and results can be found on the Northeast Fishery Science
Center's (NEFSC) Web site: http://www.nefsc.noaa.gov/saw/.
The results of SARC 56 represent the best scientific information
available and a change from the results of the previous assessment
available (GARM III). Because the Council included an alternative in
Framework 48 to implement the results of SARC 56 for white hake in FY
2013, NMFS is approving and implementing the revised status
determination criteria for white hake through this final rule. Although
NMFS did not propose these revisions in the proposed rule because they
were not yet available, the Council specifically considered and
analyzed possible scenarios resulting from the assessment and
recommended updating the white hake status determination criteria for
FY 2013. Although the public did not have prior opportunity to comment
on these measures in the Framework 48 proposed rule, the Council's
analysis was available for public comment throughout the Council
process. In addition, the SAW/SARC is an open and public process,
allowing the public and managers to participate and, frequently, to
have an indication of the results before the assessment report is
final. Nevertheless, to ensure there is opportunity for public comment
on this new status determination criteria, NMFS is implementing this
measure as an interim final rule and collecting public comment on it.
NMFS will publish another final rule, if necessary, after considering
additional public comment to finalize these criteria and respond to any
public comments. Implementing revised status determination criteria
through this final rule is necessary in order to incorporate the best
scientific information available into the FMP to allow NMFS to
implement an appropriate ABC and ACL for white hake in FY 2013.
Table 3--Updated Status Determination Criteria and Numerical Estimates of the Status Determination Criteria for
White Hake
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Criteria:
Biomass Target................... Minimum Biomass Maximum Fishing
Threshold. Mortality Threshold
SSB40%MSP........................ \1/2\ Btarget........... F40%MSP
Values:
Biomass Target (mt).............. Minimum Biomass Maximum Fishing MSY (mt)
Threshold (mt). Mortality Threshold.
32,400........................... 16,200.................. 0.20.................... 5,630
----------------------------------------------------------------------------------------------------------------
SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY =
maximum sustainable yield.
[[Page 26124]]
8. SNE/MA Windowpane Flounder sub-ACLs
Scallop Fishery Sub-ACL
NMFS has approved the allocation of a sub-ACL of SNE/MA windowpane
flounder to the scallop fishery to better ensure that the ACL is not
exceeded. The sub-ACL of SNE/MA windowpane flounder allocated to the
scallop fishery would be 36 percent of the ABC. This allocation is
based on the 90th percentile of scallop fishery catches (as a percent
of the total catch) for calendar years 2001 through 2010. The scallop
fishery's sub-ACL would be calculated by reducing the portion of the
ABC allocated to the scallop fishery (sub-ABC) to account for
management uncertainty. The management uncertainty buffer is determined
each time the groundfish specifications are set. It is anticipated that
AMs would be developed in a future management action during 2013
through the Atlantic Sea Scallop FMP in time to be effective by the
start of scallop FY 2014 (i.e., March 1, 2014), and would retroactively
apply to account for any overage in FY 2013. If the scallop fishery
exceeds its sub-ACL for SNE/MA windowpane in FY 2013, the AMs adopted
in a future management action would be triggered. Also, similar to the
measure adopted in Framework 47 for the scallop fishery's SNE/MA and GB
yellowtail flounder sub-ACLs, the scallop fishery AM for SNE/MA
windowpane flounder would only be triggered if the total ACL is
exceeded and the scallop fishery's sub-ACL is also exceeded, or if the
scallop fishery exceeds its sub-ACL by 50 percent or more.
The total ACL for SNE/MA windowpane was exceeded by more than 100
percent in FY 2010 and FY 2011, resulting in the ABC and overfishing
level (OFL) being exceeded. In both years, total catch by sector and
common pool vessels was below the common pool sub-ACL for this stock
and arguably did not contribute to the overage of the total ACL.
However, because the common pool fishery was the only fishery with a
sub-ACL and an AM for this stock, the overage of the total ACL
triggered an AM only for the common pool. On the other hand, catch by
the ``other subcomponent'' fisheries alone, including the scallop and
other fisheries, exceeded the ABC in FY 2010 and the OFL in FY 2011.
The large overages in FY 2010 and FY 2011 demonstrate that an AM for
the groundfish fishery alone is not sufficient to ensure that the ACL
for this stock is not exceeded, because it is not responsible for the
majority of catches. Creating a sub-ACL and, subsequently, an AM, for
the scallop fishery, which accounted for more than 25 percent of the
total catch in FY 2011 and almost 50 percent of the catch in FY 2010,
would create accountability for those fisheries responsible for the
greatest share of the catch and most likely to cause an overage. Thus,
a sub-ACL for the scallop fishery would help prevent overfishing on
SNE/MA windowpane flounder as required by the National Standard 1 and
Section 303(a)(1) of the Magnuson-Stevens Act and create an incentive
to minimize bycatch of this stock, consistent with National Standard 9.
NMFS received comments on the proposed rule expressing concern that
this measure does not maximize the overall net benefit to the nation or
minimize adverse impacts to communities because it would substantially
constrain scallop revenue. As further detailed in NMFS's responses to
these comments later in this final rule, NMFS believes that this
allocation to the scallop fishery balances the multiple factors taken
into consideration in achieving optimum yield (OY), while complying
with the other requirements of the Magnuson-Stevens Act and the goals
and objectives of the FMP, including preventing overfishing, minimizing
bycatch, and preserving a directed groundfish fishery. Economic, social
and ecological factors contributed to the Council's allocation
decisions for this sub-ACL. In addition to creating a greater incentive
to minimize bycatch of SNE/MA windowpane flounder while maximizing the
catch of scallops, as a fixed percentage of the ABC this measure
ensures that allowable scallop catches of this stock adjust to
increases or declines in the ABC and the relative health of the stock.
This allocation is also consistent with historic catches and maintains
historic participation in the SNE/MA windowpane flounder fishery, is
fair and equitable, and prevents excessive accumulation of shares of
this ABC by the scallop fishery as required by National Standard 4 and
the goals of the FMP, because it is based on recent catch history as a
proportion of the ABC. Although this allocation may constrain scallop
catches in future years, depending upon the ABC, to favor the scallop
industry by maximizing overall benefits to the nation would be
inconsistent with National Standard 8 which requires that management
measures must take into account importance of fishery resources to
fishing communities in order to provide sustained participation of such
communities in fishing and, to the extent practicable, minimize adverse
impacts on such communities. For these reasons, NMFS has approved this
measure through this final rule.
Other Sub-Components Sub-ACL
NMFS has approved the allocation of a SNE/MA windowpane sub-ACL to
the other sub-component fisheries. In addition to large catches of SNE/
MA windowpane flounder by the scallop fishery in recent years, other
non-groundfish fisheries have accounted for approximately half of the
total SNE/MA windowpane flounder catch in FY 2010 and FY 2011. Up until
now, any overages of the total ACL caused by this component of the
fishery have been applied only to the commercial groundfish fishery,
the only fishery with a sub-ACL and AM for this stock. As a result,
there have been no measures in place to constrain catches of SNE/MA
windowpane flounder by other non-groundfish vessels, which has
undermined the effectiveness of the ACL and AM for this stock. By
adopting a sub-ACL and, subsequently, an AM for these other fisheries,
those fisheries responsible for the majority of catches in recent years
would be held accountable for any overages they cause of the ACL for
this stock. This measure creates accountability for those fisheries
most likely to cause an overage, and thereby reduces the risk of
overfishing. The specific amount of this sub-ACL for FY 2013-2015 was
proposed in Framework 50 and will be published in the final rule for
that action. The amount of this allocation would be specified each time
catch limits are set. This administrative measure makes it possible to
adopt an AM that applies to those non-groundfish fisheries that fish
with gear responsible for most of the catch of this stock by the
``other'' sub-component. The AM for SNE/MA windowpane flounder that
would apply to commercial vessels is described in Item 12 of this
preamble.
9. Scallop Fishery Sub-ACL for GB Yellowtail Flounder
NMFS has approved the revised sub-ACL of GB yellowtail flounder for
the scallop fishery proposed in Framework 48. In preparation for a
transition to FY 2014, 40 percent of the U.S. ABC for GB yellowtail
flounder would be allocated to the scallop fishery in FY 2013 only. In
FY 2014 and each year after, 16 percent of the U.S. ABC for this stock
would be allocated to the scallop fishery to better reflect its
historical portion of total catch of GB yellowtail flounder and to
provide more predictability. The scallop fishery sub-ACL would be
calculated by reducing the scallop fishery's portion of the ABC (sub-
ABC)
[[Page 26125]]
to account for management uncertainty. The scallop fishery sub-ACL for
FY 2013 based on the U.S. ABC for GB yellowtail flounder was proposed
in the Framework 50 proposed rule and the final sub-ACL will be
published in the final rule for that action. NMFS would still re-
estimate the expected scallop fishery catch of GB yellowtail flounder
for the current fishing year by January 15. If the scallop fishery is
projected to catch less than 90 percent of its GB yellowtail flounder
sub-ACL, the Regional Administrator may reduce the scallop fishery sub-
ACL to the amount projected to be caught, and increase the groundfish
fishery sub-ACL by any amount up to the amount reduced from the scallop
allocation. Overages will be calculated based on the revised sub-ACLs
for the commercial groundfish fishery and the scallop fishery, and any
applicable AMs would be triggered. Framework 48 also clarified that the
overage payback for any overage of the U.S. TAC, as required by the
Transboundary Resource Sharing Understanding, would be deducted from
the sub-ACL for the fishery component that caused the overage.
This measure simplifies the specification of the scallop fishery's
GB yellowtail flounder allocation each year by basing it formulaically
on a fixed percentage of the ABC. This would provide stability for both
the scallop and groundfish fisheries by creating a more predictable
allocation scheme. NMFS received comments on the proposed rule
expressing concern that this measure does not maximize the overall net
benefit to the nation or minimize adverse impacts to communities
because it would substantially constrain scallop revenue. As discussed
in NMFS's response to these comments later in this final rule, NMFS
believes that this allocation to the scallop fishery balances the
multiple factors taken into consideration in achieving OY, while
complying with the other requirements of the Magnuson-Stevens Act and
the goals and objectives of the FMP, including preventing overfishing,
minimizing bycatch, and preserving a directed groundfish fishery.
Economic, social and ecological factors concerning the FMP's goals of
preserving fishing opportunities for groundfish vessels, minimizing
negative impacts on fishing communities, and reducing bycatch of
groundfish stocks, contributed to the Council's allocation decisions
for this sub-ACL and the SNE/MA windowpane flounder sub-ACLs.
Allocating a fixed percentage of the ABC to the scallop fishery would
create a greater incentive to avoid yellowtail flounder while
maximizing the catch of scallops, than an allocation based on projected
catch. A fixed percentage of the ABC also ensures that allowable
scallop catches of GB yellowtail flounder adjust to increases or
declines in the ABC and the relative health of the stock, compared to a
method based on projected catch. This allocation is also consistent
with historic catches and maintains historic participation in the
yellowtail flounder fishery, is fair and equitable, and prevents
excessive accumulation of shares of this ABC by the scallop fishery as
required by National Standard 4 and the goals of the FMP, because it is
based on recent catch history as a proportion of the ABC. Although this
allocation may constrain scallop catches in future years, depending
upon the ABC, to favor the scallop industry by maximizing overall
benefits to the nation would be inconsistent with National Standard 8
which requires that management measures must take into account
importance of fishery resources to fishing communities in order to
provide sustained participation of such communities in fishing and, to
the extent practicable, minimize adverse impacts on such communities.
For these reasons, NMFS has approved this measure through this final
rule.
10. Small-Mesh Fisheries sub-ACL for GB Yellowtail Flounder
NMFS has approved a sub-ACL of GB yellowtail flounder for small-
mesh fisheries. Small-mesh bottom trawl fisheries are defined as
vessels fishing with bottom otter trawl gear with a codend mesh size of
less than 5 inches (12.7 cm). These vessels fishing on Georges Bank
typically target whiting and squid. Small-mesh fisheries would be
allocated 2 percent of the U.S. ABC for GB yellowtail flounder each
year, after a reduction for management uncertainty. Each time the
groundfish specifications are set, the management uncertainty buffer
necessary for these small-mesh fisheries would be determined. If the
small-mesh fisheries catch of GB yellowtail flounder exceeds the sub-
ACL, the pertinent AMs would be triggered. There was not sufficient
time to develop specific AMs in this action and allow for collaboration
with the respective FMPs and the Mid-Atlantic Council (e.g., Atlantic
Mackerel, Squid, and Butterfish; Small-Mesh Multispecies). Although a
sub-ACL for FY 2013 was needed because of the expected reduction in the
GB yellowtail flounder ABC in FY 2013, the Council reasoned that
allowing additional time to work with these respective FMPs to develop
AMs would not increase the risk of an overage in FY 2013, as long as
the AMs are developed as soon as possible and applied retroactively to
be effective for any overage in FY 2013. The small-mesh fisheries have
not previously caused an overage of the GB yellowtail flounder ACL, so
the situation was deemed less urgent than for SNE/MA windowpane
flounder.
Prior to Framework 48, the quota for GB yellowtail flounder has
been allocated to only the commercial groundfish and scallop fisheries.
Although small-mesh fishery catches of GB yellowtail flounder have
generally been less than 100 mt in recent years, the U.S. ABC for the
stock has been declining. As a result, the small-mesh fishery catches
account for an increasing percentage of the total U.S. catch.
Allocating a sub-ACL and, subsequently, creating an AM for these
fisheries would help ensure that small-mesh fishery catches would be
constrained and prevent overages of the annual quota, thereby reducing
the risk of overfishing, consistent with the requirements of National
Standard 1 and section 303(a)(1) of the Magnuson-Stevens Act. In
addition, because GB yellowtail flounder is jointly managed with
Canada, keeping U.S. catches within the U.S. TAC is important to
achieve the management and conservation objectives of the
Understanding. This measure would also further the goals and objectives
of the FMP and National Standard 9 to minimize bycatch to the extent
practicable, by creating an incentive for small mesh fisheries to
reduce bycatch of this stock. A sub-ACL for small-mesh fisheries, and
associated AMs, would help ensure the component of the fishery that
causes an overage would be held accountable. This measure would also
likely prevent inequities that would occur if the commercial groundfish
and scallop fisheries were held accountable for overages caused by the
small-mesh fisheries.
11. Recreational Fishery AM
Framework 48 proposed to revise the recreational AM so that the
Regional Administrator may proactively adjust recreational management
measures to ensure the recreational fishery will achieve, but not
exceed, its sub-ACL. The recreational fishery currently only has a sub-
ACL for GOM cod and for GOM haddock. To the extent possible, any
changes to the recreational management measures would be made prior to
the start of the fishing year and adopted through procedures consistent
with the Administrative Procedure Act (APA). In addition, the Regional
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Administrator would consult with the Council, or the Council's
designee, and would tell the Council, or its designee, what
recreational measures are under consideration for the upcoming fishing
year. If time allows, the Council would also provide its Recreational
Advisory Panel (RAP) an opportunity to meet and discuss the proposed
management measures. These AMs require development in consultation with
the Council, because the appropriate suite of measures (e.g., bag
limit, minimum fish size, season) depends on the ACL specified. A
default suite of measures are not automatically triggered, because the
sub-ACL and, thus, appropriate measures to achieve that sub-ACL, may
differ between years. Similar to trip limits for the commercial common
pool fishery, a certain suite of measures are projected to achieve a
certain catch. To select the appropriate suite of measures, the ACL for
the fishing year in which they will be used must be known in order to
ensure the projected catch does not exceed the target. The Council
provided guidance on its preference of measures that NMFS should
consider if additional recreational effort controls are necessary to
reduce GOM cod or GOM haddock catches, though this guidance does not
restrict NMFS's discretion in selecting management measures that would
best achieve, but not exceed, the recreational sub-ACL. If additional
effort controls are necessary to reduce cod catches, the Council's non-
binding preference is that NMFS first consider increases to minimum
fish sizes, then adjustments to seasons, followed by changes to bag
limits. If additional effort controls are necessary to reduce haddock
catches, the Council's non-binding preference is that NMFS first
consider increases to minimum size limits, then changes to bag limits,
and adjustments to seasons last.
NMFS has approved this measure in Framework 48 because it would
improve accountability in the recreational fishery. Currently, the
recreational fishery AM only allows the Regional Administrator to
change recreational measures if an ACL is exceeded. In addition, due to
the delay in availability of recreational catch data at this time, AMs
can only be implemented late in the year following an overage, at the
start of the next recreational fishing season. This measure also gives
NMFS and the Council the ability to adapt to changing fishery
conditions, by evaluating recreational measures before the start of the
fishing year to ensure those measures facilitate a target catch
consistent with the sub-ACLs specified for the recreational fishery.
This would help prevent overages of the recreational sub-ACL, and
prevent substantial underharvests of the recreational sub-ACL. In
addition, the requirement for NMFS to consult with the Council while
developing measures allows increased opportunity for public comment,
and provides states more opportunity to coordinate their recreational
measures with NMFS.
Through the Framework 50 proposed rule, NMFS proposed and collected
public comments on adjustments to recreational measures for FY 2013.
Final recreational measures for FY 2013 will be announced in the final
rule for that action.
12. Commercial Groundfish Fishery AMs
Change to AM Timing for Non-Allocated Stocks
NMFS has approved the revised timing for commercial groundfish
fishery AMs for stocks not allocated to sectors (GOM/GB windowpane
flounder, SNE/MA windowpane flounder, ocean pout, Atlantic halibut,
Atlantic wolffish, and SNE/MA winter flounder), to improve the
effectiveness of AMs adopted through Frameworks 47 and 48 for these
stocks. Prior to this action, the AMs for these stocks would be
implemented in the second year following an overage of the total ACL.
For example, if the total ACL for ocean pout was exceeded in Year 1,
the AM would be implemented in Year 3. However, this delay may not be
needed in all cases. For example, fishery-dependent data is available
in almost real time in the commercial groundfish fishery. If
information was available during Year 1 that the commercial groundfish
fishery had exceeded the overall ACL for ocean pout, under the current
system an AM would still not be implemented until Year 3. This action
revises the timing for these AMs, so that if reliable information is
available during the fishing year (Year 1) that shows the total ACL has
been exceeded, as in the example above, the respective AM for the stock
would be implemented at the start of the next fishing year (Year 2).
After the AM is implemented, if updated catch information shows that
the total ACL was not exceeded, the AM would be rescinded consistent
with the APA. This measure increases the effectiveness of the AM and
would help prevent overfishing in consecutive years, consistent with
the requirements of National Standard 1 of the Magnuson-Stevens Act.
The Council, as well as commenters on the Framework 48 proposed
rule, expressed concerns that final catch data for the non-allocated
stocks, which include catch from state waters and non-groundfish
fisheries, could not be reliably available in time to trigger an AM in
Year 2, or earlier. NMFS has heard the Council and industry's concerns
with respect to the availability of data, and believes this measure
balances the need for effective AMs with the need for stability in
order for fishing businesses to plan for the upcoming fishing year.
This action modifies the timing of the AMs so that should reliable
information be available (e.g., the commercial groundfish fishery
catches exceed the total ACL for a stock) the AM could be implemented
more quickly. However, to provide stability for groundfish vessels, any
applicable AMs for the non-allocated stocks would only be implemented
at the start of a fishing year.
The Framework 48 proposed rule stated that if this measure was
approved and implemented on or before May 1, 2013, and reliable
information shows that the total ACL for a non-allocated stock is
exceeded in FY 2012, then the respective AM would be implemented on May
1, 2013, for sector and common pool vessels. NMFS has reviewed
available catch information as of April 16, 2013 and determined that,
based on reliable catch information, the overall ACLs for these stocks
have not been exceeded. Thus, none of the non-allocated stock AMs will
be implemented for sector and common pool vessels in FY 2013. For this
determination, NMFS considered commercial groundfish catches calculated
from the Data Matching and Imputation System (DMIS) reliable due to the
near real-time availability to estimate discards. To estimate
commercial scallop fishery catches, NMFS used audited and preliminary
observer data and fleet-wide scallop data from DMIS through February
28, 2013. NMFS determined this information to be reliable based on the
near real-time availability of observer data to estimate discard rates
in the scallop fishery. NMFS continues to make improvements to its data
collection programs to improve the timeliness of data, and would
evaluate the reliability of this information for making such
determinations on an annual basis. Area-Based AMs for Atlantic Halibut,
Atlantic Wolffish, and SNE/MA Winter Flounder.
NMFS has approved the proposed area-based AMs for Atlantic halibut,
Atlantic wolffish, and SNE/MA winter flounder through this final rule.
If the
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total ACL is exceeded for any of these stocks by an amount greater than
the management uncertainty buffer, gear restrictions would be triggered
in designated areas that have been identified as hotspots for catches
of these stocks. For overages of the Atlantic halibut and Atlantic
wolffish ACLs, trawl vessels would be required to use approved
selective gear, and sink gillnet and longline vessels would not be
allowed to fish in the applicable AM area. For overages of the SNE/MA
winter flounder ACL, only trawl gear would be restricted in the
applicable AM area. As previously adopted in Framework 47, possession
of non-allocated stocks would also be prohibited at all times, except
for Atlantic halibut, which would be reduced from one fish per trip to
zero if the total ACL is exceeded by an amount greater than the
management uncertainty buffer. Approved selective trawl gears include
the separator trawl, Ruhle trawl, mini-Ruhle trawl, rope trawl, and
other gear authorized by the Council in a management action or approved
for use consistent with the process defined in Sec. 648.85(b)(6).
Currently, the effective management uncertainty buffer at the overall
ACL level is 3-7 percent for non-allocated stocks, depending upon the
stock. The management uncertainty buffer can be changed each time
groundfish specifications are set. Because these AM areas are designed
to account for an ACL overage of up to 20 percent, if the total ACL is
exceeded by 20 percent or more for one of these stocks, the AM would
still be implemented, but the measure would be reviewed by the Council
in a future management action. In addition, should a sub-ACL be
allocated to other fisheries in a future action, and AMs developed for
those fisheries, the AM for any fishery would be implemented only if
the total ACL for the stock is exceeded, and the fishery also exceeds
its sub-ACL. A detailed description of the development of these
measures was included in Item 6 of the Framework 48 proposed rule and
is not repeated here.
Note that Framework 50 allocates SNE/MA winter flounder to the
groundfish fishery and allows landings beginning in FY 2013. Thus,
sector-specific inseason AMs will apply for any overage from a sector's
allocation in the next fishing year, and this area-based AM will apply
only to common pool vessels if the common pool exceeds its sub-ACL for
the stock.
NMFS has approved this measure because it creates effective
reactive AMs to help prevent overfishing and ensures accountability in
the commercial groundfish fishery. Proactive AMs implemented by
Amendment 16 and Framework 47 were intended to prevent ACLs from being
exceeded. However, reactive AMs are necessary to correct or mitigate
overages of ACLs if they occur, as explained in the U.S. District Court
of Appeals decision in Oceana v. Locke et al., which found that the
lack of sector-specific reactive AMs for the non-allocated stocks
violated the Magnuson-Stevens Act. These measures are necessary to
prevent overfishing of non-allocated stocks by adjusting fishery
measures to reduce the likelihood that an ACL is exceeded in
consecutive years. These reactive AMs are also necessary to address a
remand by the Court as a result of that litigation, and to be
consistent with the National Standard 1 guidelines.
Commenters on the proposed rule expressed concern that these AMs
are triggered effectively by an overage of the ABC as opposed to the
ACL. As NMFS explained in the proposed rule, this trigger level is an
artifact of how the AMs were designed and not out of any intent to
provide additional buffers before an AM is triggered. The PDT was not
able to design an AM that could account for such a small overage of 1-3
percent that would not be easily undermined by a shift of effort to
other areas. Furthermore, NMFS considers this to be an issue of
semantics and one that does not violate the National Standard 1
guidelines. Defining the trigger as an overage greater than the
management uncertainty is in concept the same as establishing an annual
catch target (ACT) and a higher ACL (e.g., an ACL set equal to the ABC)
that serves as the trigger for AMs, an approach which is allowed under
National Standard 1 guidelines.
Commenters were also concerned about the lack of automatic measure
adjustment that would account for overages larger than 20 percent of
the ACL. NMFS maintains that these AMs are to account for possible
overages by non-groundfish fisheries shown to have de minimis catches
of groundfish. It is not expected that these components themselves are
likely to exceed the sub-ACL by more than 20 percent, particularly with
the continued implementation of proactive AMs that appear to have been
effective at constraining catch below the ACLs in recent years. If zero
possession continues to be an effective proactive AM, the reactive AM
will likely not be triggered.
Revised AM for SNE/MA Windowpane Flounder
NMFS has approved the revised AM for SNE/MA windowpane flounder in
this final rule. The revised AM now applies to the groundfish fishery
and the other sub-component fisheries, which have been allocated a sub-
ACL of SNE/MA windowpane flounder through this action (see Item 8 in
this preamble). If the total ACL for this stock is exceeded by an
amount greater than the management uncertainty buffer, and the ``other
sub-component'' sub-ACL is also exceeded, then the area-based AM,
described above, would apply to all trawl vessels using a codend with a
mesh size of 5 inches (12.7 cm) or larger.
Prior to Framework 48, the AM for SNE/MA windowpane flounder only
applied to commercial groundfish vessels. However, the commercial
groundfish fishery has typically accounted for less than 25 percent of
the total SNE/MA windowpane flounder catch in recent years. A large
portion of the total SNE/MA windowpane flounder catch is caught by
trawl vessels in non-groundfish fisheries fishing with mesh size of 5
inches (12.7 cm) or greater. Thus, the current AM may not effectively
restrict catches of this stock if the total ACL is exceeded, which
increases the likelihood of consecutive overages in future fishing
years. This revision helps ensure that, in the event of an overage,
catches would be effectively restricted to prevent overfishing. In
addition, this action would remove potential inequities that could
occur if only the commercial groundfish fishery was subject to an AM
for SNE/MA windowpane flounder, even though its catches represent a
small portion of the total catch for this stock.
As implemented in Framework 47, the area-based AM for commercial
groundfish vessels is triggered only if the commercial groundfish
fishery exceeds its sub-ACL and the total ACL is also exceeded by an
amount greater than the management uncertainty buffer. Similarly, the
scallop fishery's AM is triggered only if the total ACL is exceeded and
the scallop fishery sub-ACL is also exceeded. This ensures that each
fishery is only accountable for any overages it caused and not those
caused by any other fishery with a sub-ACL of this stock.
As discussed in the previous section, commenters on the proposed
rule expressed concern that non-allocated stock AMs are triggered
effectively by an overage of the ABC as opposed to the ACL, and that
these AMs do not have
[[Page 26128]]
automatic adjustments sufficient to cover an overage of more than 20
percent of the ACL. As NMFS explains above and in the response to these
comments, the smallest effective AM the PDT could design accounts for
at the least 5 percent of the ACL. Furthermore, NMFS considers this to
be an issue of semantics and one that does not violate the National
Standard 1 guidelines. Defining the trigger as an overage greater than
the management uncertainty is in concept the same as establishing an
ACT and a higher ACL that serves as the trigger for AMs, an approach
which is allowed under the National Standard 1 guidelines. NMFS also
believes that these AMs are sufficient, because fisheries in the other
sub-component are shown to have de minimis catches of groundfish. It is
not expected that these components themselves are likely to exceed the
ACL by more than 20 percent, given that the sub-ACL is based on
estimated catch and an additional sub-ACL is being specified to
constrain the catch of the scallop fishery.
Revised Handgear Permit AMs
The revised handgear AMs are approved through this final rule. This
measure exempts Handgear A and Handgear B permits from the white hake
trimester TAC AM. This exemption would remain effective unless a future
action modified this AM. Handgear A and B common pool vessels would
still be subject to the trimester TAC for cod, haddock, and pollock.
This measure also authorizes the Regional Administrator to exempt
Handgear A and Handgear B common pool vessels from the trimester TAC
provisions for other stocks if catch by these vessels is less than 1
percent of the total common pool catch of that species or stock. This
determination would be made prior to the start of the fishing year, and
would be implemented through procedures consistent with the APA.
Currently, all common pool vessels, including vessels using
handgear, are subject to trimester TACs for allocated stocks. When 90
percent of the trimester TAC for a stock is projected to be caught, the
area where the stock is predominately caught will be closed for the
remainder of the trimester to gear capable of catching that stock. The
common pool trimester TAC AMs were designed to apply only to gear types
that caught the pertinent stock. Prior to this action, hook gear was
subject to the trimester TAC provisions for cod, haddock, white hake,
and pollock, although hook gear has been shown to very rarely catch
white hake, making up less than 1 percent of the total common pool
catch of this stock each year. Thus, NMFS has approved this measure
because it maintains the original purpose of these inseason AMs while
providing flexibility to small, handgear vessels that are not
responsible for much catch of this stock. In addition to the exemption
for white hake approved through this final rule, this measure allows
modifications to other trimester TAC AMs in the future, should new
information become available that shows handgear vessels rarely catch a
stock or species, or the combined catch of these vessels is less than 1
percent of the total common pool catch. This would increase the
effectiveness of the common pool AMs, and would prevent potential
inequities that may occur by applying an AM to vessels not responsible
for catching, or exceeding, a trimester TAC.
13. Commercial Fishery Minimum Fish Sizes
NMFS has approved the reductions to the minimum fish sizes for
several groundfish stocks to reduce regulatory discards and increase
revenue from catch. The new minimum sizes are listed in Table 4. In the
groundfish fishery, all catch, including landings and discards, are
counted against ACLs. Commercial discards for most stocks are assumed
to have 100-percent mortality, so 100 percent of discards for these
stocks are deducted from quota allocations; thus, discards are lost
revenue for groundfish vessels. Reducing the minimum size for several
groundfish stocks would reduce waste and allow the commercial industry
to recoup some revenue from fish that would otherwise be discarded.
This small amount of additional revenue may help the groundfish
industry cope with the substantial reductions in catch limits expected
in FY 2013.
Table 4--Changes to Minimum Fish Sizes Limits for Groundfish Stocks
------------------------------------------------------------------------
Current Size Proposed FW 48 Size
Species (inches) (inches)
------------------------------------------------------------------------
Cod......................... 22 (55.9 cm)........ 19 (48.3 cm)
Haddock..................... 18 (45.7 cm)........ 16 (40.6 cm)
Pollock..................... 19 (48.3 cm)........ No change
Witch flounder (gray sole).. 14 (35.6 cm)........ 13 (33 cm)
Yellowtail flounder......... 13 (33.0 cm)........ 12 (30.5 cm)
American plaice (dab)....... 14 (35.6 cm)........ 12 (30.5 cm)
Atlantic halibut............ 41 (104.1 cm)....... No change
Winter flounder (blackback). 12 (30.5 cm)........ No change
Redfish..................... 9 (22.9 cm)......... 7 (17.8 cm)
------------------------------------------------------------------------
NMFS received several comments on the Framework 48 proposed rule
expressing concern that the revised minimum sizes may increase
targeting and bycatch of small fish and impact the rebuilding of
groundfish stocks. As discussed in the proposed rule, the Framework 48
EA, and in the response to comments, the biological impacts that might
result from these new minimum fish sizes depend on whether selectivity
in the fishery shifts to smaller fish and whether catch limits are
adjusted to account for a shift, which cannot be accurately predicted.
Although difficult to predict, it is possible that decent prices for
smaller size classes of fish could incentivize the targeting of smaller
fish at the new minimum size. According to analysis in Framework 48,
this is most likely to occur for yellowtail flounder, for which there
is little difference in price between size classes and a simple change
in the type of codend used can modify the size of fish caught. However,
the revised minimum size is only an inch smaller than the existing
minimum size and still above the length at 50-percent maturity for this
stock. Analysis in Framework 48 for CC/GOM yellowtail flounder showed
that a shift in selectivity by one year without a corresponding change
in ABCs would result in a rebuilding time that is almost the same and a
higher probability of overfishing. However, if the change in
selectivity is detected and ABCs are revised, these potential impacts
are mitigated. In light of these concerns,
[[Page 26129]]
and at the request of the Council, NMFS is exploring ways to monitor
the length frequency of catch in the commercial groundfish fishery
beginning in FY 2013 to see if a change in selectivity could be
detected. If such an analysis could be completed, NMFS could use this
information to advise the Council if adjustments should be considered
in a future action.
The Massachusetts Division of Marine Fisheries (MADMF) submitted a
comment on the proposed rule raising concerns that if these measures
are approved and state agencies do not follow suit, sector vessels
would be forced to discard fish that do not meet the state minimum fish
size in violation of the federal requirement for them to retain all
fish of legal size. NMFS is also concerned about discrepancies between
state and federal minimum fish sizes complicating compliance and
enforcement of this measure. If a state does not make corresponding
adjustments to fish sizes, vessels could land their catch in other
states' ports. NMFS does not favor this result and the impacts it would
have on the non-conforming state, and, for that reason strongly urges
all affected states to match these size reductions. To address this
concern, NMFS is delaying the effective date of these new minimum sizes
to July 1, 2013, to allow state agencies additional time to consider
and make corresponding adjustments to their minimum sizes.
14. Sector Monitoring Programs
Eliminate Dockside Monitoring
NMFS has approved the elimination of dockside monitoring
requirements for the groundfish fishery. Amendment 16 required sectors
and the common pool to implement a dockside monitoring program to
validate dealer-reported landings beginning in FY 2010 and 2012,
respectively. Framework 45 delayed the implementation of these
requirements after only a year until FY 2013. Like at-sea monitoring,
the Council is concerned about the industry's ability to support this
cost burden in FY 2013 and in future years, particularly in light of
concerns about its utility, and proposed eliminating the dockside
monitoring program altogether through Framework 48.
NMFS approved this measure because it believes that dealer
reporting combined with dockside intercepts by enforcement personnel
are sufficient to ensure reliable landings data at this time. Dealer-
reported fish weights are used as the principle source to monitor
commercial landings. Thus, dockside monitor reports, which verify
dealer-recorded weights, are somewhat redundant. Random dockside
intercepts by enforcement personnel, facilitated by trip-end hails,
provide a deterrent against misreporting of catch and illegal landings.
In addition, eliminating the program would reduce costs and potentially
increase the profitability of the commercial industry in future years.
It was not clear from Framework 48 whether eliminating the dockside
monitoring program included removing the current dockside monitoring
hail requirements. NMFS proposed maintaining hail requirements in the
Framework 48 proposed rule, because they facilitate the monitoring and
enforcement of sector operations and landings. NMFS did not receive any
comments from the Council or members of the public opposing this
proposal, thus NMFS concludes that it is justified in maintaining the
hail requirements at this time. These hails will be a useful tool for
both NMFS and sector managers to monitor sector vessels' activities,
including the use of certain sector exemptions, and to facilitate
dockside intercepts by enforcement personnel. NMFS is also clarifying
the regulatory text of this proposed rule at Sec. 648.10(k)(1),
consistent with Framework 45, so that hails may be modified in the
future to be streamlined with other reporting requirements that collect
similar fishery data, such as VTRs and VMS catch reports.
Sector Monitoring Goals and Performance Standard
NMFS has approved the proposed revisions to the goals and
objectives, and performance standard, established for sector monitoring
programs and, relying in part on section 305(d) of the Magnuson-Stevens
Act, implements new regulatory text to reflect these revised goals and
objectives and ensure they are carried out in a manner consistent with
the Act. Amendment 16 did not lay out explicit goals for sector
monitoring, but described several general purposes for the programs,
including to provide accurate estimates of sector catch and to verify
area and gear fished, to ensure sector allocations are not exceeded.
The lack of well-defined goals and purposes for sector monitoring
requirements has led to confusion about how to implement these
requirements and has hindered efforts to improve them. This measure and
its implementing regulatory text clarify and elaborate on the goals and
objectives for existing and future groundfish monitoring programs to
help the Council and NMFS to implement monitoring requirements
consistent with the goals of the FMP and to evaluate these programs in
the future. More explicit goals and objectives would also assist NMFS
and the sectors in designing and evaluating proposals to satisfy
monitoring requirements in sector operations plans, ensuring the
reliability of catch estimates and accountability of catches. The new
goals and objectives include that groundfish monitoring programs
improve documentation of catch, determining total catch and effort of
regulated species, and achieve a coverage level sufficient to minimize
effects of potential monitoring bias to the extent possible, while
enhancing fleet viability. Monitoring programs should also reduce the
cost of monitoring, streamlining data management and eliminating
redundancy, exploring options for cost-sharing, while recognizing the
opportunity costs of insufficient monitoring. Other goals and
objectives include incentivizing reducing discards, providing
additional data streams for stock assessments, reducing management and/
or biological uncertainty, and enhancing the safety of the monitoring
program. It is also an explicit goal of such programs to periodically
evaluate them for effectiveness. The complete list of goals and
objectives for groundfish monitoring programs is specified in the NE
multispecies regulations at Sec. 648.11(l) and in Framework 48.
Amendment 16 specified a performance standard that coverage levels
must be sufficient to at least meet the coefficient of variation (CV)
specified in SBRM (a CV of 30 percent), but was unclear as to what
level the CV standard is to be applied to--discard estimates at the
stock level for all sectors, or for each combination of sector and
stock. This has resulted in a lack of specific direction and
specification about the appropriate coverage level needed to
``accurately monitor sector operations.'' This measure in Framework 48
clarifies that the CV standard is intended to apply to discard
estimates at the overall stock level for all sectors combined. As
discussed in NMFS's response to comments on this measure, the Council
and NMFS believe this level is sufficient as a minimum standard for
monitoring sector ACEs, consistent with the goals of Amendment 16 and
the FMP. Amendment 16 specified that coverage levels should be less
than 100 percent, which requires that the discard portion of catch, and
thus total catch, be an estimate. The level of observer coverage,
ultimately, should provide confidence that the overall catch estimate
is accurate enough to ensure that sector
[[Page 26130]]
fishing activities are consistent with National Standard 1 requirements
to prevent overfishing while achieving on a continuing basis optimum
yield from each fishery. NMFS's analysis of CVs achieved at the sector-
stock level using a performance standard at the stock level showed that
the vast majority of ACE level catch figures achieved a CV of 30
percent or better. This examination revealed that for 207 of the 256
ACE allocations, the percent of discard pounds for which the CV was
greater than 30 percent was less than 1 percent. For 43 of the
remaining ACE allocations, the percent of discard pounds for which the
CV was greater than 30 percent ranged from 1-9.9 percent. There were 6
ACE allocations for which the percent of discard pounds with a CV
greater than 30 percent ranged from 10-66 percent. A report of this
analysis is available at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf Discards are only a portion of total catch, thus the
majority of catch estimates are based on landings information, which is
obtained by dealer reported data, verified by VTRs, and sector weekly
reports. In addition, NMFS and sector managers engage in an extensive
reconciliation process to quality assure and quality check data streams
used to estimate and monitor sector catch toward ACEs. To further guard
against possible uncertainty in these estimates resulting in an overage
at the ACL level, substantial management uncertainty buffers are
established before the ACL and sub-ACLs are allocated. Based on this
analysis, we concluded that a CV standard at the stock level provides
coverage rates that are sufficiently reliable to monitor sector ACEs.
Thus NMFS has approved this measure in Framework 48.
NMFS will use this standard to help determine the minimum coverage
rates for sector at-sea monitoring programs in future fishing years.
Note that, although the Framework 48 document discusses the clarified
standard with respect to ``allocated stocks,'' the final regulatory
text applies the CV standard to all groundfish stocks, allocated and
non-allocated. This was an inadvertent error in the Framework 48
document and, thus, the Council has deemed the corrected regulatory
text as consistent with its intent.
This measure also makes clear what other factors should be taken
into account in determining the appropriate level of coverage for
groundfish monitoring programs, as described in the clarified goals and
objectives for monitoring programs. NMFS interprets these provisions as
guidance based on a practicability standard for determining the level
of at-sea monitoring coverage that is appropriate for monitoring sector
operations to help ensure that overall catch by sector vessels does not
exceed ACEs and ACLs. Thus, NMFS has revised the regulatory text with
respect to sector monitoring requirements to reflect the clarified
goals and performance standard for sector monitoring programs, and to
take into account the National Standards and other requirements of the
Magnuson-Stevens Act. NMFS has revised the regulatory text at Sec.
648.87(b)(1)(v)(B) to read that coverage levels must at least meet the
CV standard at the overall stock level and be sufficient to monitor
sector operations, to the extent practicable, in order to reliably
estimate overall catch by sector vessels.
In addition to the revised goals and objectives in Framework 48,
NMFS will specifically take into account National Standards 2, 7, and 8
in making its determination of the appropriate level of at-sea
monitoring coverage for sectors on an annual basis. These National
Standards specifically speak to using the best scientific information
available, minimizing costs and avoiding unnecessary duplication where
practicable, taking into account impacts on fishing communities, and
minimizing adverse economic impacts to the extent practicable.
Reduce At-Sea Monitoring for Monkfish Trips
Framework 48 proposed to implement a lower at-sea coverage rate for
sector vessels fishing on a monkfish day-at-sea (DAS) in the SNE Broad
Stock Area with extra-large mesh gillnets. Currently, sector monitoring
requirements are defined to apply to any trip where groundfish catch
counts against a sector's ACE. Because the Skate and Monkfish FMPs
require the use of a DAS, including a groundfish DAS, to target these
species, sector vessels fishing for monkfish and skates are charged ACE
for any landings or discards of groundfish and are subject to sector
at-sea monitoring coverage on these trips. When truly targeting
monkfish or skates, however, sector vessels often use gear that has
little or no bycatch of groundfish. With limited resources for at-sea
monitoring, covering trips targeting skate or monkfish is arguably a
waste of resources and does not contribute to improving the overall
precision and accuracy of discard estimates. Thus, NMFS has approved
this measure in Framework 48 that exempts a subset of sector trips that
are declared into the SNE Broad Stock Area on a monkfish DAS and using
extra-large mesh gillnets from the standard at-sea monitoring coverage
rate. This measure should reduce at-sea monitoring costs to sectors,
particularly to gillnet vessels that fall in this category. It would
also allow resources to be diverted to monitor trips that catch more
groundfish, which could improve discard estimates for directed
groundfish trips, and all other sector trips would still be required to
meet the CV standard at a minimum.
NMFS will specify some lower coverage rate for these trips on an
annual basis when determining coverage rates for all other sector
trips. At a minimum, these trips would get Northeast Fishery Observer
Program (NEFOP) coverage. As discussed in Item 8 of the Framework 48
proposed rule, NMFS has determined that NEFOP coverage is sufficient to
monitor these trips in FY 2013. Because this subset of trips would have
a different coverage level than other sector trips in the SNE Broad
Stock Area, NMFS has determined that these trips require a separate
discard strata for each stock to ensure the different coverage levels
do not bias discard estimates. To facilitate deploying appropriate
coverage levels, a sector vessel must notify NEFOP as to whether it
intends to fish under this exemption through the Pre-Trip Notification
System (PTNS). NMFS will provide specific instructions for how to
declare this option in PTNS in a Fishery Bulletin sent to all sector
vessels. To minimize the possibility that this measure could be used to
avoid at-sea monitoring coverage, only vessels meeting the criteria and
intending to fish exclusively in the SNE Broad Stock Area are eligible
for lower coverage. Vessels declaring multi-Broad Stock Area trips are
not eligible for the lower selection probability. In addition, a vessel
is already prohibited from changing its fishing plan for a trip once a
waiver from coverage has been issued. NMFS has revised the pre-trip
notification regulations at Sec. 648.11(k)(1) to make clear that a
vessel's fishing plan includes the area to be fished, whether a
monkfish DAS will be used, and gear type to be used.
This measure also requires that NMFS develop a method for
identifying these trips in the fishery dependent datasets in order to
ensure they are appropriately stratified in stock assessments. The NMFS
Northeast Regional Office is working with the Northeast Fisheries
Science Center to identify the appropriate method to transmit this
information to assessment scientists. To assist NMFS in identifying
these trips
[[Page 26131]]
for appropriate stratification in discard estimates, NMFS may require
sector vessels intending to use this exemption to submit a trip-start
hail declaring their intent to NMFS before departing port. If NMFS
determines a trip-start hail is necessary, detailed instructions for
submitting hails would be specified in a Fishery Bulletin distributed
to all sector vessels.
15. List of Allowable Sector Exemption Requests
NMFS has approved a provision in Framework 48 to allow sectors to
submit limited requests for exemption from portions of year-round
closure areas. Framework 48 proposed to amend the list of regulations
that sectors could not request exemption from. Amendment 16 allowed a
sector to make requests to the Regional Administrator for exemption
from some NE multispecies regulations as part of its annual sector
operations plan. Amendment 16, and later Framework 47, identified a
list of FMP measures that sectors could not request exemption from,
including: Year-round closure areas; permitting restrictions (e.g.,
vessel upgrade limits, etc.); gear restrictions designed to minimize
habitat impacts (e.g., roller gear restrictions, etc.); reporting
requirements; and AMs for non-allocated stocks. Sectors were prohibited
from requesting these exemptions because they serve multiple purposes
and do not necessarily act exclusively as mortality controls.
Beginning in FY 2013, sectors may request exemption from the year-
round groundfish mortality closures, except for where they overlap
current or proposed habitat closed areas. These areas are defined as
the existing habitat closed areas specified at Sec. 648.81(h) and the
Fippennies Ledge area under consideration as a potential habitat
management area in the Omnibus EFH Amendment currently under
development by the Council. Sectors may not request exemption from the
Western GOM Closed Area, where it overlaps with a GOM Rolling Closure
Area in effect. At this time, GOM Rolling Closure Area III overlaps the
northeast corner of the Western GOM Closed Area, so sectors would not
be allowed to request access to this portion of the Western GOM Closed
Area during May. Sectors may also not request access to Closed Area I
and II from February 16th through April 30th.
Council members, members of the public, the fishing industry, and
environmental groups expressed a number of concerns during the
development of Framework 48 and in the public comment period on the
proposed rule, about allowing additional access to groundfish closed
areas. Some comments concerned the potential for this measure and any
proposed sector exemptions to undermine measures under consideration in
the Omnibus EFH Amendment. Concerns were also raised about potential
impacts to protected species, spawning groundfish, and to other
commercial species, like lobsters, from opening these areas to
additional fishing effort. Some commenters also raised concerns that
allowing groundfish vessels into these areas, mainly Closed Area II,
could increase gear conflicts between mobile and lobster gear. To
address some of these issues, the Council imposed the limitations
described above, excluding existing and potential habitat closed areas
to preserve the process under way to evaluate these areas in the
Omnibus EFH Amendment. The Council also took steps to continue
protections for spawning groundfish by including seasonal restrictions
on any sector exemptions. NMFS responds to specific comments submitted
on the proposed rule for Framework 48 in this final rule.
As NMFS clarified in the proposed rule, Framework 48 does not
actually approve the exemptions needed to fish in these closed areas.
The impacts of any actual fishing effort, including the concerns raised
in public comments during the development of Framework 48, would be
evaluated and could be mitigated through the annual review and approval
of sector operations plans and exemption requests for each fishing
year. The Council has already asked that the specific issues raised
during the development of Framework 48 be evaluated by NMFS in the
consideration of any specific sector exemption requests. In addition,
many of the issues regarding sector access to closed areas raised in
public comments on the proposed rule, will be analyzed should NMFS
propose granting sector exemption closed area access. The sector
exemption review and approval process also provides better opportunity
to address specific concerns with the potential impact of actual sector
proposals. The Regional Administrator may include stipulations and
constraints on specific exemptions to facilitate the monitoring and
enforcement of sector operations or as mitigation measures to address
specific potential impacts.
After review of public comments, NMFS has approved this measure in
this final rule. The Council designed this measure to maintain the
purpose of existing habitat areas to minimize the adverse effects of
fishing on EFH, and preserve the consideration of additional habitat
and other management areas in the Omnibus EFH Amendment. The Council
also took steps to limit potential impacts of requests on spawning
groundfish. This change to the list of prohibited exemptions would
allow the consideration and analysis of specific sector exemption
requests on a case-by-case basis. If approved, sector exemptions to
portions of these areas may help mitigate the expected reductions in FY
2013 catch limits by allowing sectors to potentially increase catches
of healthy groundfish stocks such as GB haddock and pollock that may be
more abundant in these areas.
In anticipation of this change being approved for FY 2013, sectors
submitted requests for exemptions from portions of the year-round
closed areas in their FY 2013 operations plans. Due to the need for
additional time to analyze these new exemptions adequately, NMFS
intends to consider these sector requests in a separate rulemaking from
the general approval of sector operations plans for FY 2013. The closed
area exemption requests would be considered as amendments to the sector
operations plans through a proposed and final rule that would be
available for public comment with an accompanying National
Environmental Policy Act (NEPA) analysis. Any closed area exemption
requests, if approved, would not be in place until after the start of
the 2013 fishing year.
16. Additional Corrections
In addition to the changes specified above, the following changes
to the regulations are approved to correct incorrect references and to
further clarify the intent of the Council.
In Sec. 648.4(a)(1)(ii), this rule corrects a misspelling of the
word ``multispecies.''
In Sec. 648.80(a)(3)(vii), this rule clarifies that rockhopper and
roller gear requirements of the GOM/GB Inshore Restricted Roller Gear
Area apply only to groundfish vessels on a NE multispecies DAS or
sector trip. This correction is made at the request of the Council, in
response to a letter sent April 30, 2012.
In Sec. 648.82(k)(2), language prohibiting sector vessels from
leasing DAS is removed. This language is left over from Amendment 13
and should have been removed in the final rule implementing Amendment
16, which allowed sectors vessels to lease DAS among themselves.
In Sec. 648.82(n)(2)(i), this rule clarifies that common pool
trimester TAC area closures are intended to apply to common pool
vessels using gear capable of catching groundfish only when on a
[[Page 26132]]
NE multispecies DAS, and not when participating in exempted fisheries.
In Sec. 648.82(n)(2)(ii)(A), this rule corrects the coordinates
for the GB Cod Trimester TAC Area. Amendment 16 defined the area as
being composed of statistical areas 521, 522, 525, and 561. However,
the coordinates used to define the GB Cod Trimester TAC Area were
incorrectly transposed in the Amendment 16 final rule and included
statistical area 562; this is rectified by this action.
In Sec. 648.82(n)(2)(ii)(B), Points 4 and 5 incorrectly list the
N. Lat. as 43[deg]20', and this action corrects them to read
43[deg]10'.
In Sec. 648.82(n)(2)(ii)(H) and (I), the original coordinate AP8
was unnecessary and is removed by this action.
In Sec. 648.82(n)(2)(ii)(J), this rule corrects the coordinates
for the GB Winter Flounder Trimester TAC Area. Amendment 16 defined the
area as being composed of statistical areas 522, 525, 561, and 562.
However, the coordinates used to define the GB Winter Flounder
Trimester TAC Area were incorrectly transposed in the Amendment 16
final rule and did not include statistical areas 525 and 561; this is
rectified by this action.
In Sec. 648.84(e), this rule adds a regulatory definition for the
rope separator trawl. The definition for the rope separator was
inadvertently removed from the regulations by the Framework 47 final
rule. This rule adds the regulatory definition back into the
regulations.
In Sec. 648.85(a)(3)(iv)(E), the regulations allow for the
Regional Administrator to close the Eastern U.S./Canada Area to all
vessels subject to a particular TAC allocation if that particular TAC
allocation is projected to be caught. This rule clarifies that this is
only to apply to allocations to sectors and common pool vessels, and
not the scallop fishery or other ACL components. Amendment 16 and
Framework 48 clarified that inseason and reactive accountability
measures for sub-ACLs for non-groundfish components of ACLs are to be
developed and administered by those respective FMPs.
In Sec. 648.85(b)(7)(iv)(H), an explicit reference to possession
limits for other groundfish stocks, including stocks prohibited from
being landed, in Sec. 648.86 is added in the description of landings
limits for the Closed Area I Hook Gear Haddock Special Access Program
(SAP).
In Sec. 648.85(b)(8)(v)(C), the timing of the pre-trip
notification to the observer program for a US/CA trip is revised from
72 hr to 48 hr. Prior to Amendment 16, vessels taking trips into the
U.S./Canada were required to notify the observer program of their
intent to take a trip 72 hr prior to departure. With the implementation
of Amendment 16, NMFS established a standardized call-in requirement to
the observer program that reduced this lead time to 48 hr.
In Sec. 648.85(d), a period that was incorrectly inserted after
``NE'' is removed.
In Sec. 648.86(a)(3)(ii), periods that were incorrectly inserted
after ``NE'' is removed.
In Sec. 648.86(a)(3)(ii)(A)(3), the table title for the GB Herring
Haddock AM Area was incorrectly published as the GOM area. This rule
corrects the table title.
In Sec. 648.87(b)(1)(ii), sector stock area coordinates that were
to be implemented by Framework 44 but were inadvertently left out of
the regulations are added through this rule as paragraphs (A) through
(F).
In Sec. 648.90(a)(5)(iii), a period that was incorrectly inserted
after ``NE'' is removed.
In Sec. 648.201(a)(2), the prohibition on landing of haddock is
clarified to apply only to the haddock stock area for which the AM has
been triggered. An explicit reference is added to the haddock
possession restrictions in the NE multispecies regulations at Sec.
648.86(a)(3)(ii)(A).
Comments and Responses
NMFS received 75,393 comments during the comment period on the
Framework 48 proposed rule, including 75,263 form letters opposing
allowing sectors access to groundfish closed areas. Letters were also
received from the Council, the USCG, MADMF, the Maine Department of
Marine Resources (MEDMR), 7 environmental organizations, 3 research
institutions, numerous members of the academic community, a whale watch
company, 7 commercial fishing industry groups, 2 recreational fishing
associations, a commercial fish dealer, and 106 individuals. Some of
the comments did not address the proposed measures and thus they are
not included here. Where possible, responses to similar comments on the
proposed measures have been consolidated.
Comment 1: NMFS received one comment on the economic analysis in
the draft Framework 48 EA and the IRFA. MADMF commented that the
economic analysis of measures in Framework 48 should have focused on
the individual level and that any other level of analysis would not
result in accurate characterizations about the impacts of Framework 48
measures on individuals. MADMF also questioned the assumption that
impacts to vessels would also be applicable to ownership entities and
noted that the conclusion in the IRFA that Framework 48 measures would
not have a disproportionate impact on small entities seems to
contradict the conclusion elsewhere in Framework 48 that small vessels
would suffer the highest percent reduction in net revenues from sector
monitoring requirements.
Response: NMFS believes the commenter may be misunderstanding the
economic analyses in Framework 48. It appears the commenter has
misinterpreted the conclusions in the economic analysis for this
action. Individual measures are analyzed independently relative to the
no action alternative for each particular measure, because each measure
must be approved or disapproved based on its individual merits. The
cumulative impacts of an action and all other foreseeable actions are
also analyzed in the cumulative effects analysis of the EA. For
example, the analysis suggested that reducing the commercial minimum
fish sizes could increase revenues and, thereby, serves as a mitigation
measure, when compared to not reducing the minimum sizes. Extrapolating
the conclusion of the economic impact of an individual measure to
impacts of the entire action is not appropriate. It is not clear what
MADMF defines as an ``individual'' and, therefore, what analysis it
believes is missing. The term ``ownership entity,'' as opposed to a
vessel, has a specific meaning in analyses under the Regulatory
Flexibility Act (RFA) for Framework 48 and the proposed rule, which is
where these terms are used. Similarly, small vessels are not the same
as small entities. A small vessel refers to the relative size or length
of the vessel itself as some measure of capacity to generate revenue.
As described in the IRFA, the Small Business Administration (SBA)
defines a small business as one that is: independently owned and
operated; not dominant in its field of operation; has annual receipts
not in excess of $4.0 million in the case of commercial harvesting
entities, or $7.0 million in the case of for-hire fishing entities; or
if it has fewer than 500 employees in the case of fish processors, or
100 employees in the case of fish dealers. This is the definition of a
small entity used for the purposes of an RFA analysis. Thus, a small or
large entity could own or control a number of small vessels. The
assumptions used to aggregate vessels or permits to the ownership
entity level was explained in the RFA section of Framework 48 (section
8.11.2), and conforms to NMFS
[[Page 26133]]
internal guidelines and the SBA's guidelines for economic analyses to
comply with the RFA. The RFA does not require an analysis of
comparative impacts between small entities, although this has been done
to a degree for this action, but rather the comparative impact between
large and small entities and alternatives that may reduce those
comparative impacts, if they disproportionately affect small entities.
NMFS's methods for predicting outcomes do not yet include agent-based
models capable of predicting individual vessel-level outcomes, though
NMFS is continually improving its data sources and analytical methods.
In addition, the ability to report on distributional impacts at the
individual vessel level is hindered by the need to protect the
confidentiality of individually-reported data at this level. Thus, for
some measures, such the reduced commercial minimum fish sizes, the
economic impacts were addressed qualitatively.
Status Determination Criteria
Comment 2: The Island Institute commented in support of the revised
status determination criteria and how these measures will make way for
setting appropriate ABCs and ACLs in Framework 50.
Response: NMFS agrees that the revised status determination
criteria represent the best available science and would allow the
appropriate ABCs and ACLs to be set beginning in FY 2013 to end
overfishing and continue the rebuilding of groundfish stocks. NMFS has
approved the revised status determination criteria in this final rule.
Comment 3: The Conservation Law Foundation (CLF), MADMF, and the
Northeast Seafood Coalition (NSC) raised questions related to the
methods and results of the assessments for SNE/MA yellowtail flounder,
and GOM and GB cod. CLF questioned NMFS and the Council's determination
that the revised SNE/MA yellowtail flounder status determination
criteria represent the best available science when the recruitment
scenarios that were considered by the SARC were almost equally likely,
but resulted in such different stock status. MADMF pointed out that
NMFS proposed two numerical values for status determination criteria
for GOM cod, but did not specify which it preferred and proposed to
approve. MADMF questioned why the SARC did not conclude that natural
mortality for GOM cod would be sustained at 0.4 or higher. MADMF also
asked NMFS to clarify why the GOM and GB cod assessments did not
conclude there has been a change in productivity for these stocks as
for SNE/MA yellowtail flounder. NSC challenged that the revised status
determination criteria do not represent the best available science
because the assessments did not consider alternate methods for deriving
FMSY proxies. NSC asked NMFS to ask the Council and SSC to
consider alternate methods for establishing FMSY other than
F40%MSP in stock assessments. They challenged that this is a
policy decision with management implications and therefore should be
made by the SSC and Council, rather than the NEFSC.
Response: NMFS first notes that an error was made in the Framework
48 proposed rule with respect to the overfishing status of SNE/MA
yellowtail flounder under the two recruitment scenarios. The Framework
48 proposed rule erroneously stated that SNE/MA yellowtail was
experiencing overfishing under the ``two-stanza'' recruitment scenario,
when both recruitment scenarios actually led to the conclusion that
this stock was not experiencing overfishing.
With respect to the reference points for GOM cod, two sets of
status determination criteria were proposed because the SARC accepted
two models at the assessment. These models resulted in one maximum fish
mortality threshold, but two sets of biomass reference points. Although
this approach for determining numerical values for stock status is less
straightforward, both models concluded that GOM cod is overfished and
undergoing overfishing. NMFS has approved both sets of revised
reference points for GOM cod in this final rule.
NMFS understands CLF and MADMF's concerns about the amount of
uncertainty in the biomass reference points for SNE/MA yellowtail
flounder and GOM cod. SARC 54 modeled possible reasons for reduced
recent recruitment of SNE/MA yellowtail flounder, but could not fully
explain the low productivity of this stock. SARC 55 reviewed
information on natural mortality of GOM cod, but was unable to reach a
decision on which natural mortality values best characterized the
system. Investigating possible sources of changes in productivity was
not a specific TOR in the cod assessments, as it was in the SNE/MA
yellowtail flounder assessment. However, the TORs for these assessments
were vetted by the Northeast Regional Coordinating Committee (NRCC),
which includes representatives of the New England and Mid-Atlantic
Councils and their SSCs. There are basic TORs that are the foundation
for the TORs of all assessments, but stock-specific TORs may be added
based on research recommendations, generated by developments in the
science or politics of a particular stock, and vetted by the NRCC. Even
without a specific TOR, the SAW working group reviews all available
information and the public may submit papers to the working group to
consider in their analyses and deliberations. A detailed discussion of
the review panels' deliberations are available in the assessment
reports and review panel summaries on the NEFSC Web site: http://www.nefsc.noaa.gov/saw/reports.html. More exploration is needed, yet
the results of the SARC 54 and 55 assessments, even with the
acknowledged uncertainty, represent the best scientific information
available about the state of SNE/MA yellowtail flounder and GOM cod at
this time. These reference points were endorsed by both the SSC and
NEFSC for use in managing these stocks. NMFS has approved the revised
status determination criteria in this final rule.
Regarding NSC's assertion that the proposed status determination
criteria do not represent the best available science because the
assessments did not consider alternate methods for deriving
FMSY, the Framework 48 proposed rule did not propose or
solicit public comment on assessment methods. NMFS can only approve,
partially approve, or disapprove the status determination criteria
proposed in Framework 48 based upon an evaluation of its compliance
with the Magnuson-Stevens Act, the National Standards Guidelines, the
FMP, and other applicable law. It would not be appropriate or
permissible for NMFS to choose an alternate FMSY reference
point through this final rule that was not considered by the SSC or
Council. That being said, the TORs generated for each assessment, and
vetted by the NRCC with representations by both Councils and their
SSCs, specifically direct the SAW/SARC to determine FMSY or,
if a direct estimate of FMSY cannot be determined, to select
an appropriate proxy. Thus, FMSY or methods for determining
its proxy are evaluated and recommended by each SAW and approved by
each SARC, and are not pre-determined as NSC seems to suggest, although
an FMSY proxy of 40%MSP may be the result in many
assessments. The NSC has already forwarded its concerns about the
determination of FMSY proxies to the Council for
consideration and the Council may choose to pursue this issue for
future assessments. However, the numerical estimates of FMSY
proposed in Framework 48 for SNE/MA yellowtail
[[Page 26134]]
flounder, GOM and GB cod, were reviewed and accepted by the review
panels at SARC 54 and 55, the SSC, and the Council, as the best science
available for management of these stocks. Subsequently, NMFS has
approved these status determination criteria as consistent with the
requirements of the Magnuson-Stevens Act and the FMP.
Comment 4: The NEFMC, MEDMR, and Maine Coast Fishermen's
Association (MCFA) urged NMFS to implement updated status determination
criteria for white hake as soon as possible based upon the results of
SARC 56 that recently became available. The results of this latest
benchmark assessment suggest an increase in the FY 2013 ACL for white
hake would be warranted, which would provide additional economic
opportunity to groundfish vessels in FY 2013.
Response: NMFS agrees that the results of the SARC 56 benchmark
assessment for white hake represent the best scientific information
available for this stock and implements updated status determination
criteria for white hake through this final rule (Item 7). The revised
status determination criteria were not proposed for public comment in
the Framework 48 proposed rule because the assessment results were not
yet available (see Item 1 of the proposed rule). However, NMFS believes
it is appropriate to implement the updated status determination
criteria through this final rule because the Council recommended and
analyzed updated status determination in Framework 48 in case the
assessment results became available in time for rulemaking. In
addition, the SARC 56 assessment shows a change in the stock's status,
from overfished and subject to overfishing to neither overfished nor
undergoing overfishing, and that is expected to meet its rebuilding end
date of 2014. NMFS is implementing the revised white hake status
determination criteria with a post promulgation comment period to allow
for additional public comment on this measure.
GB Yellowtail Flounder and SNE/MA Windowpane Flounder Sub-ACLs
Comment 5: Four commenters supported establishing sub-ACLs of SNE/
MA windowpane flounder for the scallop fishery and other sub-component
fisheries, including revising the SNE/MA windowpane flounder commercial
groundfish fishery AM to apply to other sub-component fisheries with
catch of this stock. AFM generally supported the allocation of this
stock to the scallop fishery. NSC, CLF, and Oceana commented in support
of both proposed sub-ACLs and the revised AM. CLF commented that these
measures are justified given the significant overages of the SNE/MA
windowpane flounder ACL in recent years. Oceana also commented that the
proposed sub-ACLs increases accountability for fisheries with more than
a de minimis catch of groundfish.
Response: NMFS agrees that the proposed measures increase
accountability among fisheries with a measurable catch of groundfish.
Sub-ACLs and AMs encourage these fisheries to minimize catches of SNE/
MA windowpane flounder, consistent with the objectives of the FMP and
National Standard 9 of the Magnuson-Stevens Act. NMFS has approved
these measures through this final rule.
Comment 6: NMFS received seven comments in support of the revised
GB yellowtail flounder sub-ACL for the scallop fishery. One individual
simply expressed support for the revised sub-ACL as proposed. MEDMR,
Associated Fisheries of Maine (AFM), NSC, and one individual supported
the revised sub-ACL, because it improves accountability for the scallop
fishery and holds each component of the fishery responsible for its own
catches. NSC and MEDMR commented that the fixed percentage reflects
historical catch. CLF and MEDMR believe the revised allocation creates
an incentive for the scallop fishery to reduce bycatch of GB yellowtail
flounder. AFM and the Portland Fish Exchange also commented that the
fixed percentage provides more stability for groundfish fishermen
because it is a more predictable allocation.
Response: NMFS agrees that the fixed percentage provides stability
to the scallop and groundfish fisheries by simplifying the allocation
scheme. NMFS also agrees that the revised sub-ACL provides an incentive
for the scallop fishery to reduce its catch of GB yellowtail flounder
and has approved this measure in this final rule.
Comment 7: Fisheries Survival Fund (FSF) supported the allocation
of 40 percent of the GB yellowtail flounder U.S. ABC in FY 2013,
because it provides for most of the scallop fishery's projected need,
while providing an allocation for the groundfish fishery and
maintaining an incentive for the scallop fishery to avoid yellowtail
flounder. However, FSF opposed the allocation of 16 percent of the GB
yellowtail flounder U.S. ABC in FY 2014 and each year after, and 36
percent of the SNE/MA windowpane flounder ACL, because they will result
in lost scallop revenues over the long term. FSF also opposed the
proposed sub-ACL of SNE/MA windowpane flounder for the other sub-
component fisheries, because it will reduce revenues from the fluke
fishery. FSF argues that the Council made these allocations in order to
maintain a directed groundfish fishery for GB yellowtail flounder. As
an alternative, FSF argues, the Council could have closed the directed
fishery for GB yellowtail flounder and implemented a zero possession
limit for GB yellowtail flounder as it has done for SNE/MA windowpane
flounder to promote the greater good, the prosecution of the more
valuable scallop and fluke fisheries. FSF argues that by constraining
the scallop and fluke fisheries with these sub-ACLs, the Council has
not maximized the overall benefit to the nation and reduced the ability
of the scallop fishery to achieve optimum yield on a continuing basis,
violating National Standard 1.
FSF further contends that these measures do not minimize adverse
economic impacts on fishing communities as required by National
Standard 8, because they sacrifice valuable scallop and fluke fishery
landings for the communities that depend on these revenues, in favor of
the less valuable GB yellowtail flounder landings. FSF also urged NMFS
to accelerate access for the scallop fishery to the northern edge of GB
if it approves these measures to mitigate the economic impacts of the
proposed measures.
Response: NMFS disagrees with FSF that the proposed sub-ACLs for
SNE/MA windowpane flounder and GB yellowtail flounder are not
consistent with the Magnuson-Stevens Act. FSF suggests that the overall
benefit to the nation would be to allow the unrestrained prosecution of
the scallop and fluke fisheries, based solely on their higher economic
value when compared to the groundfish fishery. However, the concept of
overall benefit to the nation must be evaluated in the context of
optimum yield, which requires consideration and balancing of other
factors in addition to economic values, including food production,
recreational opportunities, the protection of marine ecosystems, and
which can only be reduced based on economic, social or ecological
factors. And even at OY, management measures must still prevent
overfishing. Economic, social and ecological factors concerning the
FMPs goals of preserving fishing opportunities for groundfish vessels
and minimizing negative impacts on fishing communities, and reducing
bycatch of groundfish stocks, contributed to the Council's allocation
decisions for these sub-ACLs. OY must also be consistent
[[Page 26135]]
with other National Standards of the Magnuson-Stevens Act, particularly
in this instance, National Standards 4 and 8. To focus only on OY,
would potentially run afoul of National Standard 4 which requires that
management measures should be fair and equitable to all fishermen and
that no particular entity acquires excessive shares of fishing
privileges. Also, to favor the scallop industry by maximizing overall
benefits to the nation would be inconsistent with National Standard 8
which requires that management measures must take into account
importance of fishery resources to fishing communities in order to
provide sustained participation of such communities in fishing and, to
the extent practicable, minimize adverse impacts on such communities.
The new sub-ACLs are consistent with these principles.
Allocating SNE/MA windowpane flounder sub-ACLs to the scallop and
fluke fisheries was necessary to prevent overfishing and ensure
accountability for catches of this stock, consistent with the
requirements of the National Standard 1. This is a non-allocated stock,
for which possession is prohibited and all catch is discarded. As
discussed in Item 8 of the preamble, until Framework 47, only the
commercial groundfish common pool fishery had an AM for this stock.
However, the lack of accountability for catches in the ``other sub-
component'' fisheries, including the scallop and fluke fisheries,
resulted in total catches that exceeded the ABC and OFL for this stock
in FY 2010 and again in FY 2011, despite the implementation of an AM
for the common pool fishery in FY 2011 to account for the overage in FY
2010. Catch by non-groundfish fisheries alone exceeded the ABC in FY
2010 and the OFL in FY 2011. Framework 47, and now Framework 48,
modified the commercial groundfish fishery AMs to make them more
effective. However, as these AMs do nothing to constrain total catches
of SNE/MA windowpane flounder in the scallop and other sub-component
fisheries where the majority of catch is taken, maintaining a sub-ACL
and AMs only for the groundfish fishery does not sufficiently reduce
the risk of overfishing and would not be consistent with National
Standard 1 or the goals of the FMP. Additional sub-ACLs and
corresponding AMs for these fisheries are necessary to constrain
catches of this stock by the scallop and other sub-component fisheries
and correct any overages, and to prevent overfishing, as is required by
the Magnuson-Stevens Act. This measure also ensures equity by holding
the component of the fishery responsible for an overage accountable for
its catch.
The Council considered not allowing landings of GB yellowtail
flounder, meaning it would be considered a non-allocated stock, in this
action, but rejected this alternative out of concern that there would
be no incentive to minimize discards of this stock, and unrestrained
catches would quickly exceed the ABC and ACL being considered for FY
2013. Taking a stock from allocated to non-allocated and prohibiting
its possession does not absolve the Council of having to prevent
overfishing and ensure accountability for catches of this stock. As
demonstrated by the Court's decision on Amendment 16 in Oceana v. Locke
et al., prohibited possession may not be a sufficient AM, by itself,
and if the Council had decided not to allocate this stock in FY 2013,
it would still have had to ensure accountability of any overages of the
total ACL, including catches by the scallop fishery. Reducing
accountability would also be inconsistent with the Council and NMFS'
obligations under the joint management agreement with Canada for this
stock, and the goals of the FMP, by undermining the integrity of the
TACs set under that agreement. The importance of some landings of GB
yellowtail flounder to some vessels in the groundfish fishery also
weighed on the Council's decision not to make this stock prohibited.
Regardless, Framework 48 does not recommend making GB yellowtail
flounder a non-allocated stock and NMFS cannot unilaterally do so
because it may only approve or disapprove the measures included in the
framework.
This action proposed alternative methods for calculating the
scallop fishery's sub-ACL, including a method based on an estimate of
projected catch and a fixed percentage. The Council selected the fixed
percentage method as its preferred alternative out of concern that,
with a declining ABC, scallop catches would become a larger part of the
total catch if the allocation was calculated based on projected catch
of yellowtail flounder. An allocation based on projected catch does not
take into account changes in the ABC or the relative health of the
stock. A fixed percentage also provides a greater incentive for the
scallop fishery to reduce bycatch of these stocks, than an allocation
based on projected bycatch, consistent with the goals of the FMP and
National Standard 9, to reduce bycatch at the extent practicable. In
addition, the Council believed it would be inequitable to allow scallop
catches to become a larger portion of the U.S. ABC and thereby reduce
the groundfish fishery's historic level of participation in this
fishery. This would not be consistent with the goals and objectives of
the FMP as described in Amendment 16 to maintain a directed commercial
groundfish fishery and the shoreside infrastructure and communities
that rely on it, and the requirements of National Standard 4, which
requires that allocations be fair and equitable among fishermen. The
Council took a similar approach with the SNE/MA windowpane flounder
sub-ACL for the scallop fishery.
These factors also influenced the Council's decision to select the
fixed percentages of 16 and 36 percent of the ABCs for GB yellowtail
flounder and SNE/MA windowpane flounder, respectively. For both stocks,
the Council based these percentages on recent catch history. For SNE/MA
windowpane flounder, the Council selected the 90th percentile of the
highest scallop catches as a proportion of total catches in recent
years (2010). This was also the year with the highest scallop fishery
discards by weight in the time series. This resulted in an allocation
of 36 percent of the ABC. Whether this will be constraining in a
particular fishing year depends upon the ABC and resultant sub-ACL
allocation, which was analyzed for FY 2013-2015 in Framework 50, and
the AM to be developed in a future scallop action. Similarly, the fixed
percentage allocation for yellowtail flounder was based on the highest
amount of scallop discards as a proportion of total catches of GB
yellowtail flounder from 2001-2011. The Council considered a range of
8-16 percent for this stock, with 8 percent being the average percent
of total catch in the time series and 16 percent being the highest
total catch (2006). For both stocks, the Council selected the
percentages that would provide the greatest allocation for the scallop
fishery, while still meeting the needs to minimize bycatch to the
extent practicable, maintain a fair and equitable allocation for the
groundfish fishery, consistent with the FMP and the Magnuson-Stevens
Act. In addition, the scallop fishery's AMs for both stocks are only
triggered if it exceeds its sub-ACL by more than 50 percent, or causes
an overage of the overall ACL. This effectively provides an additional
50 percent of the scallop fishery sub-ACL in any given year, if left
uncaught by other components of the ACL. Although an even larger
allocation for the scallop and other non-groundfish fisheries would
seemingly be justified based on
[[Page 26136]]
a strict comparison of the economic values of these fisheries versus
the groundfish fishery, the Council is expressly prohibited from making
an allocation decision based solely on economic efficiency by National
Standard 5 and must take into account other provisions such as fairness
and equity and impacts on fishing communities. For these reasons, NMFS
approves the proposed sub-ACLs for SNE/MA windowpane flounder and GB
yellowtail flounder as consistent with the goals and objectives of the
FMP and the requirements of the Magnuson-Stevens Act.
FSF requested that, if NMFS approved these measures in Framework
48, it should accelerate access for scallop vessels to the northern
edge of Georges Bank. This area is currently a habitat closed area for
the purpose of minimizing the adverse effects of fishing on habitat. As
FSF is already aware, there is not a mechanism in the scallop FMP that
allows NMFS to grant scallop vessels access to fish in this area
without explicit Council action. The Council is already reviewing this
area and allowing access to this area as part of the comprehensive
review of habitat and other closed areas in the Omnibus EFH Amendment,
and is targeting implementation of any measures in 2014.
Comment 8: NMFS received five comments supporting the proposed GB
yellowtail flounder sub-ACL for small mesh fisheries. NSC and AFM
commented generally in support of the proposed measure. Oceana and one
individual supported the allocation because it holds each fishery
component accountable for its own catch. Oceana also urged NMFS and the
Council to continue evaluating groundfish catch by other fisheries and
to establish sub-ACLs whenever catches are above de minimis levels. CLF
noted that the establishment of a sub-ACL means little without an
effective AM, and argued that the public should be able to know when
AMs are to be developed.
Response: NMFS agrees that the proposed measure increases
accountability for fisheries responsible for catches of groundfish. By
providing an incentive for small mesh fisheries to reduce catches of GB
yellowtail flounder, this measure is consistent with National Standard
9 and the objectives of the FMP to minimize bycatch of groundfish
stocks to the extent practicable. NMFS has approved the GB yellowtail
flounder sub-ACL for small mesh fisheries. NMFS will continue to
encourage the Council to evaluate groundfish catch in non-groundfish
fisheries in the biennial review process, as well as on an ad-hoc basis
if any of these fisheries appear to have caused an overage. NMFS agrees
with CLF's point that AMs for small mesh fisheries must be developed as
soon as possible to provide an incentive for small mesh fisheries to
comply with the new sub-ACL. The Council has begun planning the
development of the next framework action and AM for this sub-ACL is
slated to be included for FY 2014 to cover any overage in FY 2013, if
necessary. NMFS believes this provides a sufficient incentive to
constrain catches within this sub-ACL in FY 2013, while providing
opportunity for thorough development and evaluations of AMs with
participation by small mesh fishery participants.
Recreational Fishery AM
Comment 9: CLF commented in support of revising the recreational
fishery AM to allow the Regional Administrator to proactively adjust
measures to ensure that the recreational fishery sub-ACLs are not
exceeded. MADMF urged that NMFS should also consult directly with state
agencies about proactive changes to recreational fishery measures, not
just as Council members through the Council process.
Response: NMFS agrees that the proposed revision to the
recreational fishery AM would improve accountability in the
recreational fishery. Currently, the recreational fishery AM only
allows the Regional Administrator to change recreational measures if an
ACL is exceeded. In addition, due to the delay in availability of
recreational catch data at this time, AMs can only be implemented in
the third year following an overage. The Council may initiate a
management action to revise recreational measures for any given fishing
year commensurate with the recreational sub-ACLs being proposed or
implemented for that year. However, this process offers little
flexibility for the Council or NMFS to revise measures if those in
place are expected to result in catches higher than the recreational
allocations specified for the coming year and there is no time to
complete a framework adjustment. Allowing NMFS to adjust recreational
fishery measures proactively before the start of a fishing year reduces
the likelihood that a recreational sub-ACL will be exceeded in that
fishing year. This allows NMFS and the Council to adapt to changing
fishery conditions, by evaluating recreational measures before the
start of the fishing year to ensure those measures facilitate a target
catch consistent with the sub-ACLs specified for the recreational
fishery. NMFS has approved the revised recreational fishery AM in this
final rule. The Regional Administrator may only implement proactive
measures to ensure that the recreational fishery sub-ACLs are not
exceeded after consultation with the Council, which includes
representatives from all the New England states. This consultation
process built into this measure affords the state directors, or their
representatives, to voice any concerns that they may have during this
process.
Comment 10: NSC opposed revising the recreational fishery AM to
allow the Regional Administrator to liberalize recreational measures
inseason to facilitate the recreational fishery catching its sub-ACLs.
NSC argued that this reflects an inconsistent application of the
National Standard 1 requirements for AMs between the recreational and
commercial fisheries. NSC also questioned the data NMFS would use to
project recreational fishery effort inseason to make such a
determination, given the limitation on recreational data timeliness.
Response: NMFS believes that NSC has misunderstood the proposed
revision to the recreational fishery AM. The intent of the proactive AM
was not to allow NMFS to project recreational fishery catch and revise
recreational measures inseason. The intent of the Council in Framework
48 was for NMFS to follow a procedure similar to the Council's to
revise recreational measures, using the Bioeconomic Length-structured
Angler Simulation Tool (BLAST) model to identify suites of measures
that would achieve but not exceed the recreational sub-ACLs in the
coming fishing year, to gather input on these measures from the RAP and
Council, and implement them before the start of the fishing year. The
text of this measure in Framework 48 and the regulations implementing
this measure state that the revised measures would be implemented prior
to the start of the fishing year ``to the extent possible,'' because
the Council acknowledged the possibility that even this abbreviated,
adaptable process may not be completed before the start of the fishing
year in some cases. The measures for FY 2013 are a perfect example,
where the Council did not take final action on FY 2013 ACLs until
January 2013 and NMFS and the Council could not develop recreational
measure alternatives for FY 2013 until February 2013.
NMFS contends that this change to the recreational AM is consistent
with the implementation of AMs for the commercial fishery. Sector
allocations, as hard TACs, are inseason AMs that are
[[Page 26137]]
specified as a proportion of the each groundfish fishery sub-ACL for
each allocated groundfish stock. This means that, unlike recreational
fishery measures, they automatically adjust to increases or decreases
in ACLs from one fishing year to the next. Sectors also receive several
regulatory exemptions every year to increase operational flexibility
and facilitate achieving their ACEs. The common pool sub-ACLs also
automatically adjust from one year to the next, and NMFS has the
authority to project and revise common pool trip limits before the
start of each fishing year and inseason to ensure common pool sub-ACLs
are achieved but not exceeded. Contrary to NSC's opinion, the addition
of a proactive AM for the recreational fishery would actually result in
more consistent application of AMs across fishery components.
Commercial Groundfish Fishery AMs
Comment 11: The Council and a few other commenters pointed out an
error in the coordinates for the proposed Atlantic halibut AM areas,
and requested NMFS correct this error in the final rule.
Response: The coordinates for the Atlantic Halibut Fixed Gear AM
Area 1 on page 67 of the draft Framework 48 EA and, subsequently, in
the proposed regulations, located this area overlapping the Atlantic
Wolffish Fixed Gear AM Area 1 to the northwest of Closed Area 1.
However, Atlantic Halibut Fixed Gear AM Area 1 actually overlaps
Atlantic Wolffish Fixed Gear AM Area 2 along the western edge of the
Western GOM Closed Area. The figure on page 68 of the draft Framework
48 EA showed the correct halibut AM areas. NMFS has corrected the
coordinates in the regulations implementing this final rule.
Comment 12: CLF and Oceana generally supported the proposed changes
to AMs for non-allocated stocks in Framework 48. CLF and Oceana
supported the revised timing for these AMs, and the creation of area-
based AMs for Atlantic halibut, Atlantic wolffish, and SNE/MA winter
flounder, because they increase accountability for and constrain
catches of these stocks. However, Oceana opposed the fact that these
AMs would be effectively triggered by an overage of the ABC rather than
the ACL, arguing that this approach is illegal and not consistent with
National Standard 1 guidelines. Oceana also took issue with the fact
that these AMs only account for an overage of up to 20 percent of the
ACL and that any overage larger than that would require future action
by the Council. Oceana contended that AMs are required to be automatic
adjustments to fishery measures and that referring the matter to the
Council for further action does not satisfy these criteria, especially
in light of recent overages of the SNE/MA windowpane flounder ACL by
more than 100 percent. Oceana urged NMFS to partially disapprove these
portions of the reactive AMs and to refer them back to the Council for
further modification.
Response: NMFS agrees with the commenters that the revisions to
non-allocated stock AMs proposed by Framework 48 would increase
accountability for catches of these stocks and reduce the likelihood of
an ACL being exceeded. NMFS understands Oceana's concerns regarding the
trigger point for these AMs being the ABC, rather than the ACL. As
discussed in Item 6 of the proposed rule preamble, using the ABC as the
trigger point for these AMs was not out of any intention to provide an
additional buffer for catches above the ACL. Rather, this was more an
artifact of the design of the area-based AMs. The Groundfish PDT was
not able to design effective area-based AMs that would account for an
overage of only a few percent, while still being effective. Gear
restricted areas or closures that small can be easily undermined by a
shift of effort to other areas. NMFS does not consider the concept of
this trigger for AMs to be illegal or inconsistent with National
Standard 1 guidelines. Defining the trigger as an overage greater than
the management uncertainty is in concept the same as establishing an
annual catch target (ACT) and a higher ACL (e.g., an ACL set equal to
the ABC) which serves as the trigger for AMs, which is allowed under
National Standard 1 guidelines. So, in approving these AMs, NMFS has
considered the ACL for these stocks, in effect, to be ACTs and the
trigger based on exceeding the management uncertainty to be, in effect,
the ACL. In this sense, these AMs are entirely consistent with National
Standard 1 guidelines. By considering these AMs in this fashion,
Oceana's comments are really about nomenclature, rather than any
fundamental inconsistency with the concepts of Magnuson-Stevens Act or
National Standard 1 guidelines. Furthermore, this is the same design as
the AMs for windowpane flounder and ocean pout implemented through
Framework 47, which Oceana supported.
These AMs are to account for possible overages by non-groundfish
fisheries shown to have de minimis catches of groundfish. It is not
expected that these components themselves are likely to exceed the ACL
by more than 20 percent. When catches by these fisheries have risen
above de minimis levels, such as in the case of overages of the SNE/MA
windowpane flounder in FY 2010 and FY 2011, the Council has responded
by recommending sub-ACLs and fishery/gear-specific AMs for these
fisheries, as is currently proposed through Framework 48. In addition
NMFS zero possession for SNE/MA winter flounder and Atlantic wolffish
appear to have effectively kept catches within allowable levels in
recent years. If zero possession continues to be an effective proactive
AM, the reactive AM will likely not be triggered. Subtracting catches
by the scallop and fluke fisheries, which will now be constrained by
ACLs, coupled with the proactive AMs for these stocks, it is not clear
that such large overages by the remainder of the other sub-component
fisheries is at all likely and, thus, that these AMs would not be
sufficient.
Oceana requested that NMFS partially approve these AMs and refer
the trigger point and AM for large overages of more than 20 percent
back to the Council. NMFS can only partially approve measures when
there are distinct, severable components that would not substantively
affect the measure if one component were approved and another
disapproved. The trigger point is an integral part of the proposed AMs,
thus NMFS cannot simply disapprove it without disapproving the whole
measure thereby leaving these stocks with no reactive AM. And it's not
clear how disapproving implementing the area-based AMs for large
overages and referring this back to the Council would be much different
than what would be required by the AM in the event of a large overage.
As Oceana points out, these reactive AMs increase accountability for
catches of these stocks by ensuring adjustments are made to account for
overages and by providing an incentive to restrain catches of these
stocks. NMFS believes it would be better to have some reactive AMs in
place than none, to constrain catches of these stocks and to address
the court remand. For these reasons, NMFS has approved these measures
in Framework 48. The Council may continue to modify these measures to
make them even more effective through a future action.
Comment 13: NSC, Portland Fish Exchange, CCCHFA, and MCFA opposed
the proposed revisions to AMs for non-allocated stocks. Specifically,
NSC did not support revising the AM timing or reactive AMs for non-
allocated stocks, because they argue that the data used for these
determinations is not reliable or available in a timely manner to
provide sufficient notification to the
[[Page 26138]]
industry of the implementation of an AM in the following fishing year.
NSC also questioned whether this modification was necessary, as it was
not part of the court remand to address non-allocated stock AMs.
Portland Fish Exchange questioned whether such measures are necessary
when SNE/MA winter flounder may be allocated by Framework 50, and
halibut and wolffish are rarely encountered and are returned to the
water when caught. CCCHFA did not support the application of area-based
closures in an output based fishery. CCCHFA and the Maine Coast
Community Sector (MCCS) also stated that Atlantic halibut is in better
condition than the most recent assessment indicated and, as a result,
more frequent encounters of this stock could trigger the AMs as soon as
FY 2013 or 2014. CCCHFA called on NMFS to conduct an assessment for
this stock and to reevaluate the proposed AM in light of the results of
that new assessment. MCFA and MCCS expressed concern that the Atlantic
Halibut Fixed Gear AM Areas would have significant and disproportionate
economic impacts on fishing businesses from Maine that fish this area,
with no corresponding benefits to the stock, because the real issue of
unrestrained state fishery catches remain unaddressed. MCFA and MCCS
argued that vessels and sectors that fish in these areas have not had
adequate time to prepare sector exemptions or develop gear
modifications that would allow continued access to this area with
reduced catches of halibut. MCCS suggested that the fixed gear AMs are
too broad, and should instead target sink gillnets using tie-downs to
target monkfish in this area, which they believe are responsible for
the most bycatch. MCCS also requested clarification as to how the AMs
would be in place if triggered.
Response: NMFS recommended that the Council revise the timing of
non-allocated stock AMs, not because it was remanded by the Court, but
because it would improve the effectiveness of these AMs. To be
consistent with the National Standard 1 Guidelines, AMs should correct
the problems that caused an overage as soon as possible. Currently, the
AMs for non-allocated stocks are implemented in the second year
following an overage of the total ACL. This delay may not be needed in
all cases, but the current AMs do not allow for the possibility that
these AMs could be implemented sooner if reliable information is
available. For example, fishery dependent data is available in almost
real time in the commercial groundfish fishery. If information was
available during Year 1 that the commercial groundfish fishery had
exceeded the overall ACL for ocean pout, under the revised AM timing,
the respective AM for the stock would be implemented at the start of
the next fishing year (Year 2). The revised timing would also allow for
improvements in the timeliness of data streams from other fisheries,
which NMFS is continually improving. That is why NMFS has approved the
revised AM timing through this final rule. In addition, NMFS and the
Council understand the need to provide stability for groundfish
vessels. Thus, any applicable AMs for the non-allocated stocks would
only be implemented at the start of a fishing year.
These reactive AMs for non-allocated stocks are necessary in order
to rectify overages and reduce the likelihood of overages in
consecutive fishing years. Although landings of these stocks are
currently prohibited and, therefore, most catch is made up of discards,
the Magnuson-Stevens Act requires that all mortality be accounted for.
This means that even if overages of the ACL are caused by discards, an
AM must be applied to reduce the likelihood of such an overage
happening again and to prevent overfishing. Furthermore, the Council's
inability to directly control state fishery catches, does not absolve
the Council of doing what it can to prevent overages of the overall
ACL. The importance of reactive AMs was further clarified by the Court
decision in Oceana v. Locke et al. The Council designed these AMs
around hotspots of bycatch for these stocks, so that if the overall ACL
is exceeded, total catch of that stock might be reduced and, therefore,
the likelihood that an overage would be repeated would be reduced.
Locating the AMs in areas with little impact on fishing effort and
bycatch, although that might reduce the impact on vessels trying to
target other stocks, would not be effective. During the development of
Framework 47, the Groundfish Committee briefly considered allocating
these stocks to sectors, which would provide output-based AMs like
stocks currently allocated to sectors. However, the Groundfish
Committee remained concern that allocations of these stocks would be
too restrictive.
The Council may consider further modifications to these AMs if
changes in stock size shift hotspot areas of high bycatch. Currently, a
benchmark assessment for Atlantic halibut is not scheduled. Revised
reference points and ABCs for this stock would not negate the need for
a reactive AM for the commercial groundfish fishery, but may increase
the ACL and thereby reduce the likelihood that it would be exceeded.
Assessments are scheduled through the NRCC, which prioritizes them
based on many factors, including how old the most recent assessment is,
whether an management action is imminent, whether there is any new
information or progress in research that would revise the assumptions
or inputs of the assessment, and other priorities. If the commenters
are interested in a new assessment for this stock, they may propose it
to the Council to bring to the NRCC.
The Council could also refine these AMs to target more specific
gears, if a specific gear configuration is identified to be responsible
for most bycatch. The AMs approved in Framework 48 apply to those gears
identified as having the highest bycatch of these stocks by SBRM
observer coverage. Trawl gear was found to be responsible for the
majority of discards of halibut, followed by a much smaller amount
discarded by gillnet gear. It may be possible that tie-down nets
targeting monkfish in these areas are responsible for the majority of
bycatch of Atlantic halibut, as suggested by MCCS, but the SBRM gear
modes are not defined to this fine a scale. However, these AMs were
designed based on the best available information about areas and gears
with the highest bycatch of these stocks. Delaying the implementation
of these AMs to further refine them would mean that possible overages
of the overall ACLs for these stocks would not be accounted for in the
interim, which would not be consistent with National Standard 1.
Although these AMs may be further refined and improved through future
Council actions, they would increase accountability for and constrain
catches of these stocks at this time. For these reasons, NMFS has
approved these AMs in this final rule.
The Council expressly prohibited sectors from requesting exemptions
from the AMs for non-allocated stocks through Framework 47. However, it
did provide for the possibility that selective gears could be approved
for use in these areas. If MCCS is successful at identifying gear types
that could be used in the Atlantic halibut AM areas with little bycatch
of this stock, it could submit those gears for review through the same
process used to authorize selective trawl gear at Sec.
648.85(b)(6)(iv)(J)(2).
Note that Framework 50 allocates SNE/MA winter flounder to the
groundfish fishery and allows landings. This means that this stock is
subject to sector-specific inseason AMs, coupled
[[Page 26139]]
with a pound-for-pound payback of any overage from a sector's
allocation in the next fishing year. In this case, the area-based AM
would apply only to common pool vessels if the common pool exceeds its
sub-ACL for the stock. If triggered, these AMs would be in place for
only the fishing year in which they are implemented.
Comment 14: NMFS received one comment, from the Northeast Hook
Fishermen's Association (NEHFA), supporting the revised trimester TAC
AMs for handgear vessels. NEHFA supported this measure because it would
help small handgear vessels, which account for a small percentage of
catches of groundfish stocks, but for which groundfish provides an
important revenue stream.
Response: NMFS agrees with NEHFA that handgear vessels account for
such a small portion of the white hake catch that exempting them from
the trimester TAC AMs is justified. This measure would not increase the
risk of the common pool exceeding its sub-ACL for this stock, but would
relieve an inequity currently present in the common pool inseason AMs.
Exempting handgear vessels from these inseason AMs for white hake would
reduce the costs of these AMs for handgear vessels by allowing them to
continue fishing for other groundfish stocks when an AM for white hake
is triggered. That is why NMFS has approved this measure in Framework
48.
Commercial Fishery Minimum Fish Sizes
Comment 15: MEDMR, Portland Fish Exchange, AFM, NSC, and two
individuals supported the proposed reductions in commercial minimum
fish sizes. Commenters generally supported this measure because it
would reduce waste. One commenter supported this measure because it
would help would allow the commercial industry to compete with imports
from foreign countries, which have lower minimum sizes. One commenter
supported this measure because it would generate additional revenue for
groundfish vessels and act as a mitigation measure for FY 2013 catch
limit reductions. Another commenter suggested the proposed minimum
sizes are more consistent with the selectivity of existing allowable
mesh sizes. One commenter noted that these sizes are larger than those
originally proposed by the Groundfish PDT and take into account the
maturity and biology of groundfish stocks.
Response: NMFS agrees with the commenters that reducing the
commercial minimum fish sizes as proposed in Framework 48 would reduce
waste, provide more opportunity to achieve OY and provide additional
revenue to groundfish vessels in FY 2013 that could help mitigate some
of the negative economic impacts expected from reductions in catch
limits. As indicated by the analysis in Framework 48, this measure
would be expected to allow more fish caught and counted against quotas
to have economic value rather than be wasted. Under a full retention
scenario, estimated additional gross revenues in the short term could
be substantial. While reducing the minimum sizes would not be expected
to generate quite as much additional revenue, it would increase
revenues from quota used for groundfish vessels, especially sector
vessels. In addition, these minimum sizes are generally consistent with
the length at which 50 percent of fish are expected be mature. In this
way, this measure attempts to balances the benefits of reducing waste,
with the need to ensure many fish can spawn before being caught. For
these reasons, NMFS approved this measure in Framework 48.
Comment 16: CCCHFA, MADMF, MCFA, and CLF opposed the proposed
reduction in commercial minimum fish sizes. CCCHFA specifically
expressed concern about reducing the minimum fish sizes for cod and
haddock, when both GOM and GB cod are overfished and the incoming year
class of GB haddock may be what sustains the fishery for the next few
years. These commenters generally opposed the measure because it would
increase effort on smaller fish, undermine rebuilding programs, and
reduce long-term productivity of these stocks. MCFA and CLF expressed
concern that reducing the minimum sizes would reduce the current
disincentive to target small fish created by counting all discards
against quotas, which was an objective of sector management. CLF, MCFA,
and MADMF expressed concern that the reduced minimum sizes would
encourage fishermen to target smaller fish and potentially increase the
use of net liners in order to maximize the retention of legal-sized
fish, and could drive stocks into further decline. Thus, they argue
that reducing the minimum sizes would increase, rather than reduce,
discards overall. They believe that the risk of a shift in selectivity
and potential consequences are too high. MADMF argues that maintaining
the minimum size above the length at 50 percent maturity is not
sufficient or defensible, because research has shown that repeat
spawners are important for spawning success.
Response: NMFS understands commenters concerns that this measure
may change incentives in targeting fish but it is not possible to
accurately predict whether and to the extent that this may actually
occur, and the consequences on conservation objectives, due in part to
the context in which these reductions in fish size will apply. As NMFS
discusses in Item 13 of the preamble, there are two components of
uncertainty as to the potential impacts from this measure. First, it is
unclear whether a shift in selectivity is likely. According to analysis
in Framework 48, this is most likely for yellowtail flounder, for which
there is little difference in price between size classes and a simple
change in the type of codend used can modify the size of fish caught.
The second component to the uncertainty is whether the shift in
selectivity could be detected and ABCs could be adjusted to account for
this change. Although a shift in selectivity could affect rebuilding
time and the probability of overfishing, if this shift is detected and
ABCs are adjusted, these potential impacts may be mitigated. That is
why NMFS is exploring ways to monitor the length frequency of catch in
the commercial groundfish fishery beginning in FY 2013 to see if a
change in selectivity could be detected. If such an analysis or data
can be put together, NMFS can advise the Council if adjustments to
measures may be needed.
Traditional notions as to likelihood of a shift of fishing behavior
to target small fish may not be as applicable in the context of the
sector program. All catch is counted against sector ACE to create an
incentive to minimize discards in order to maximize the value of a
sector's quota. However, despite this incentive, sector vessels are
still experiencing regulatory discards. Analysis by the Groundfish PDT
showed that the majority of discards of groundfish stocks for which
size changes are proposed occurred just below the minimum size. The PDT
concluded that a size reduction of an inch would reduce discards of
cod, haddock, plaice, and yellowtail flounder. The Council then
increased the sizes from those proposed to reduce the majority of
discards to sizes that would be consistent with or above the length at
50 percent maturity. NMFS believes the proposed reductions to minimum
sizes represent a balance between the need to reduce waste and maximize
the value of resources expended, and to need to ensure the continued
rebuilding of groundfish stocks. All catch would still be counted
against sector allocations, including
[[Page 26140]]
discards, which should maintain an incentive to reduce discards. It is
unclear, in light of such severe reductions in catch limits, whether
the expected shifts in fishing behavior will result, given the need to
maximize the profitability of every fish caught. Moreover, in light of
joint and several liabilities of sector vessels, there is increased
incentive for sectors to self-enforce against any illegal activity,
such as use of liners or misporting, that facilitate targeting of small
fish. For these reasons, NMFS has approved this measure in Framework
48.
Comment 17: MADMF also stated that if these measures are approved
and state agencies don't follow suit, sector vessels would be forced to
discard fish that do not meet the state minimum fish size in violation
of the federal requirement for them to retain all fish of legal size.
MADMF also suggested that NMFS should reduce sectors' allocations to
account for the additional quota gained from reducing the amount of
discards charged through discard rates.
Response: NMFS is also concerned about discrepancies between state
and federal minimum fish sizes complicating compliance and enforcement
of this measure. To address this concern, NMFS is delaying the
effective date of these new minimum sizes to July 1, 2013, to allow
state agencies additional time to consider and make corresponding
adjustments to their minimum sizes. If a state does not make
corresponding adjustment to fish sizes, vessels would not be forced to
illegally discard fish as they could land in other states' ports. NMFS,
however, would not favor this result and the impacts it would have on
the non-conforming state, and, for that reason strongly urges all
affected states to match these size reductions.
With respect to MADMF's concern that reducing the minimum fish
sizes increases the amount of available quota to sectors, NMFS believes
this concern arises from a misunderstanding about how sector discard
rates are applied. Discard rates generated from observed trips are
intended to be representative of the discard rates for each stock on
unobserved trips. So, for example, for a single trip in FY 2012, the
fish between the current minimum size and new minimum size would have
been discarded. If the trip was observed, the sector would have been
charged for these discards based on observer data. If the trip was
unobserved, the sector would have been charged for these discards based
on the discard rate calculated from the observed trips. If total catch
remained the same on that same trip in FY 2013, those fish between the
current minimum size and new minimum size would be landed instead of
discarded. Regardless of whether the trip was observed, the sector
would be charged for those fish based on dealer reports of those
landings. The sector would then also be charged for the discards below
the new minimum size, from either observer data or the new reduced
discard rate. Thus, in this example, total catch would remain the same,
but fish between the current and new minimum sizes would shift from
discards to landings. So sectors would not necessarily be able to catch
more fish overall compared to their allocations. Even if an adjustment
were somehow appropriate, NMFS does not have the authority to adjust
sector allocations without Council action. Although initial rates at
the beginning of the year would be based on previous fishing years,
once these rates transition to inseason discard rates in FY 2013, they
would be based on observed discards on trips carrying an observer in FY
2013. In addition, discards were not used in the computation of vessel
PSCs, but are charged to sector allocations.
Comment 18: CCCHFA, MEDMR, and one other individual stated a
preference for full catch retention to improve data collection and
minimize the cost of at-sea monitoring to the industry.
Response: The Council considered a full retention requirement for
sector vessels, but did not recommend it because it was not
sufficiently developed for implementation in FY 2013. NMFS, therefore,
does not have the authority to replace minimum fish sizes with such a
measure as part of its partial approval and implementation of Framework
48 measures. However, the Council passed a motion at their December 20,
2012 meeting to pursue full retention for further development in a
future action. NMFS encourages the commenters to participate in the
Council process as it considers this option for a future fishing year.
Sector Monitoring Programs
Comment 19: AFM, NSC, and the MADMF supported delaying industry's
responsibility to pay for at-sea monitoring costs to FY 2013. However,
MADMF expressed concern that approving this measure would lead to
continued delays of industry cost responsibility in subsequent actions.
Response: NMFS understands commenters concerns about industry being
able to bear the cost of monitoring, especially in light of the
substantial reductions in catch limits expected in FY 2013. That is why
NMFS intends to cover the full cost of monitoring for sectors in FY
2013 to the extent that it can, by continuing its NMFS At-sea
Monitoring Program. Although exact effort levels next year are
uncertain, NMFS believes that if sector vessels take fewer trips
overall as expected, NMFS will be able to cover 100 percent of the
costs of sector monitoring. The availability of these funds makes the
Framework 48 measure somewhat moot, but NMFS still cannot approve this
measure in Framework 48. This measure is not consistent with the goals
of the FMP or the requirements of the Magnuson-Stevens Act, because it
would not ensure monitoring levels sufficient to monitor ACLs and
sector ACEs. Rather, coverage levels would be determined by the amount
of available NMFS funding which, without specific appropriations for
this purpose, would not guarantee even minimum coverage levels to meet
the performance standard as required by Amendment 16 and Framework 48.
NMFS also shares MADMF's concerns that approving this measure in
Framework 48 would establish an inappropriate precedent for future
fishing years.
Comment 20: CLF opposed the proposed delay of industry
responsibility for the costs of at-sea monitoring. CLF contended that
the fishing industry should be responsible for the costs of monitoring
the harvest of a public trust resource and that it is not clear that
the industry could not actually afford these costs. CLF points out that
this data is necessary for quality assessments and argues that adequate
data for assessments and management should not be sacrificed just
because quota levels are low.
Response: NMFS agrees with CLF that delaying industry cost
responsibility to FY 2014 and specifying coverage levels according the
amount NMFS can fund is not sufficient to ensure the adequate
monitoring of ACLs and sector ACEs. As CLF notes, adequate at-sea
monitoring is necessary for quality data for assessments and reliable
estimates of sector and groundfish fishery catches for the purposes of
determining if allocations have been exceeded. Basing coverage levels
on NMFS funds alone would not ensure that levels are sufficient to at
least meet the performance standard and goals and objectives for
monitoring programs defined by Amendment 16 and Framework 48. For these
reasons, NMFS has disapproved this measure in Framework 48.
Comment 21: MEDMR, AFM, NSC, the Portland Fish Exchange, MCFA, and
one individual commented in support of the proposed sharing of at-sea
monitoring costs between NMFS and sectors. Commenters supported this
[[Page 26141]]
measure because they believed that industry could not support these
costs under reduced catch levels. NSC and MEDMR supported continued
efforts by NMFS and the Council to develop a workable for the NE
Multispecies FMP, including joining the Squid/Mackerel/Butterfish and
Herring FMAT/PDT.
Response: NMFS agrees with commenters that this cost-sharing
concept has merit and is worth exploring. However, as explained in Item
2 of the preamble, this measure is not consistent with the requirements
of the Anti-Deficiency Act and other appropriations law and policy as
developed. As defined, this measure would require NMFS to pay for
portions of at-sea monitoring costs that are beyond its statutory
obligations and, thus, its appropriations. This measure would also have
required NMFS to share payment of some obligations with sectors, which
is prohibited. For these reasons, NMFS disapproved this measure through
this final rule. However, NMFS believes that a similar measure, if
modified, could be workable and is available to assist the Council in
further developing this concept for a future action. In addition, as
described in the response to Comment 19, NMFS intends to cover the full
cost of at-sea monitoring for sectors in FY 2013, to the extent that it
can, to address industry's concerns about their ability to bear this
burden in FY 2013 in light of the substantial reductions in catch
limits that are expected.
Comment 22: One individual commented against the proposed cost-
sharing mechanism, out of a belief that it was not sufficiently
developed at this time. This commenter stated that the industry should
work directly with NMFS, and not involve other parties, in the
development of a workable measure when appropriate.
Response: NMFS agrees with the commenter that the proposed
monitoring cost-sharing mechanism was not sufficiently developed in
this action. That is why NMFS has disapproved this measure through this
final rule. NMFS is already assisting the mackerel and herring FMPs to
explore cost sharing mechanisms for those fisheries for FY 2014 and can
help the Council in further developing this mechanism for the NE
Multispecies FMP for a future action if interested.
Comment 23: CLF, NSC, and MCFA supported eliminating dockside
monitoring requirements for sectors. Commenters generally supported
eliminating this program because it did not provide useful or timely
data and, therefore, was not worth its costs. CLF supported eliminating
this requirement provided that hails requirements are maintained and
that dockside intercepts are effective and sufficient for enforcement.
MCFA thought that dockside monitoring should be reconsidered if full
retention is adopted in a future action. MADMF did not support or
oppose this measure, but asked that NMFS clarify why it believes that
dockside intercepts by enforcement personnel will be sufficient to
monitor sector landings. MADMF and NSC also supported retaining hail
requirements to assist with the deployment of enforcement personnel,
but NSC requested that NMFS improve the timeliness of confirmation of
receipts for hails. NSC also supported NMFS' intent to clarify the
regulations to allow for streamlining of these reporting requirements
in the future. MADMF asked whether NMFS and the Office of Law
Enforcement have adequate capability to compare hails to observed
landings to monitor sector and common pool landings against
allocations.
Response: NMFS agrees with commenters that the dockside monitoring
program as currently designed is not necessary or sufficiently useful
in monitoring sector landings. Dealer reports are the principle data
source for commercial landings information. In addition, eliminating
the program would reduce costs and potentially increase the
profitability of the commercial industry in future years. Eliminating
this program would reduce redundancy and reduce costs for the
commercial groundfish vessels, thereby increasing net revenues in
future fishing years. That is why NMFS approved eliminating the
dockside monitoring program, but maintained hail requirements, through
this final rule. To the extent that dockside monitoring creates a
disincentive to misreport or hide landings that may be used for
monitoring purposes, NMFS believes dockside intercepts by enforcement
personnel, supported by hail requirements, goes a long way to meet this
objective. Should the Council consider full retention of fish in a
future action, dockside monitoring should be reconsidered.
NMFS understands NSC's concerns regarding latency issues affecting
the timeliness of confirmations of receipts and vessels' ability to
comply with this measure. That is why NMFS is continually making
improvements to its systems to address these types of issues. NMFS
agrees that redundancy should be avoided and costs should be
streamlined where possible, thus NMFS has also approved its
clarification to the regulations that would allow streamlining of hails
with other similar reporting requirements in the future when
appropriate.
Law enforcement personnel, including OLE uniformed officers,
special agents, and state partners, have access to the data reported in
trip start and trip end hails through a secure database. Enforcement
personnel do have the capacity to use this information to plan dockside
intercepts, and to compare it to other landings data sources. However,
NMFS would like to caution commenters that hails were instituted for
the purposes of coordinating deployment of dockside monitors. Estimated
weights of landings were required to be reported in order to allow the
monitoring provide to plan for the type catch that would be offloaded
and monitored and the length of the offload. This information was not
intended or designed to be used for the verification of dealer reports
or VTRs. The estimated weights reported are expected to be the
captain's good faith estimate of catch and would not be expected to
exactly match a dealer's recorded weights and so are not used for this
purpose.
Comment 24: NSC, AFM, and CCCHFA commented in support of the
proposed revisions to the goals and objectives and performance standard
for groundfish monitoring programs.
Response: NMFS agrees that the measures proposed by Framework 48
clarify the goals and objectives and the performance standard for
groundfish monitoring programs. This would help the Council, NMFS, and
sectors implement and evaluate these programs more effectively. NMFS
has approved these revisions in this final rule.
Comment 25: CLF and Oceana opposed the proposed revisions to the
goals and objectives and performance standard for groundfish monitoring
programs. They argue that these measures are a fundamental component of
sector AMs and, therefore, cannot be revised through a framework
adjustment. They argue that adjustments to these requirements through
the framework process was not contemplated or specified by Amendment 16
and, thus, urge NMFS to disapprove these proposed changes on procedural
grounds. The commenters further contend that the effectiveness of
sector AMs depends on the ability of individual sectors to know and
manage catch toward their ACEs and thus, for sector AMs to ensure
accountability as required by the Magnuson-Stevens Act, the appropriate
level for monitoring these catches is at the sector ACE level, rather
than the ACL. They urged NMFS to disapprove the proposed action to
apply the CV standard at the overall
[[Page 26142]]
stock level and instead select the alternative that would apply it at
the sector-stock level. The commenters were generally supportive of the
proposed goals and objectives for groundfish monitoring programs as
consistent with the original purpose of these measures in Amendment 16.
However, they expressed concern with the inclusion of the terms ``to
the extent possible'' with respect to minimizing potential monitoring
bias, and ``cost-effectiveness'' with respect to stratifying discards.
They argued that this provides too much discretion for the
implementation of these programs as a component of sector AMs. MADMF
also expressed concern that the inclusion of a practicability standard
would result in coverage rates that are not sufficient for accurate
catch accounting.
Response: NMFS disagrees that sector monitoring requirements cannot
be revised through a framework action. Section 4.8.2 of Amendment 16
expressly states that frameworkable measures are not limited to the
items listed in that section. In addition, sector monitoring
requirements, including coverage levels and the performance standard,
are listed under sector administration provisions in Amendment 16,
which is listed as a frameworkable measure in section 4.8.2. As the
commenters note, the regulations at Sec. 648.90(a)(2)(iii) list at-sea
and dockside monitoring requirements among the measures that may be
modified through the biennial review process, as well as AMs, changes
to other administrative measures, and any other measures currently
included in the FMP. In addition, the Council deemed these regulations
as consistent with their intent in Amendment 16. These changes are at
most clarifications and elaborations on how to determine appropriate
monitoring levels, not wholesale changes to the monitoring
requirements. So, NMFS believes that these changes are lawful under the
combination of allowable framework provisions of the FMP and section
305 (d) of the Magnuson-Stevens Act which authorizes NMFS to implement
regulations necessary to ensure that Council measures are carried out
in a manner consistent with the Act.
Oceana and CLF raised similar concerns that recommended coverage
rates based on a CV standard that is applied at the overall stock level
would not provide reliable catch estimates for the purpose of
implementing AMs at the sector ACE level. As NMFS discussed in its
summary of the appropriate level of at-sea monitoring on sectors at
http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf and in response to
these same comments on the proposed rule for FY 2013 sector operations
plans, Amendment 16 specified that ASM coverage levels should be less
than 100 percent. This means that discards and, thus, total catch by
definition shall be based on estimates, rather than absolute numbers.
Thus, NMFS believes that it is appropriate to utilize its stated
practicability standard in the application of sector monitoring
requirements. The level of observer coverage combined with the self-
reporting requirements for sectors should provide confidence that the
overall catch estimate is accurate enough to ensure that sector fishing
activities are consistent with National Standard 1 requirements to
prevent overfishing while achieving on a continuing basis optimum yield
from each fishery. In the above referenced analysis in response to
Oceana's comments, NMFS examined the 256 sector ACE level catch figures
(16 fishing sectors * 16 ACE allocations) in comparison to the CV30
standard for FY 2011. This examination reveals that for 207 of the 256
ACE allocations, the percent of discard pounds for which the CV was
greater than 30 percent was less than 1 percent. For 43 of the
remaining ACE allocations, the percent of discard pounds for which the
CV was greater than 30 percent ranged from 1-9.9 percent. There were 6
ACE allocations for which the percent of discard pounds with a CV
greater than 30 percent ranged from 10-66 percent. In addition, discard
estimates provided by required at-sea monitoring coverage rates are not
the sole source of information for monitoring of sector catch and
making a determination about whether a sector has exceeded its ACE.
Discard estimates, to which the CV standard applies, is only a portion
of total catch. Landings, provided by dealer purchase reports, comprise
the majority of total catches for groundfish stock. The CV analysis is
conducted to evaluate the calculation of discards, which are typically
less than 10 percent of the overall catch of the allocated groundfish
stocks, and in FY 2011 were less than 5 percent of the catch for most
allocated stocks (while discards were a higher percentage of total
catch for GOM yellowtail flounder, GB East cod, and American plaice,
the total catch of those stocks were less than 90 percent of the sub-
ACLs and the CVs for those stocks ranged from 4.4 to 15.4). To monitor
sector catch, not just discards, NMFS and sector managers rely on a
number of data sources, including observer data, VMS, VTRs, VMS catch
reports, and dealer reports. Sectors are also required to submit weekly
reports, which are broken down to the sub-trip level catch and gear
information, and these reports are stepped up to daily certain catch
thresholds (for FY 2013 the daily reporting threshold is 90% of any
ACE) are reached. NMFS conducts weekly reconciliation of NMFS and
sector reports with sector managers to verify that each sector and NMFS
have the best available data to monitor catch and sector ACEs. In
addition, due to the joint and several liability of sector members for
certain violations, including illegal discarding and misreporting of
catch, there is a strong incentive for sector members to self-enforce
monitoring and reporting requirements and ensure the sector has the
most accurate information available. Based on the totality of this
information, NMFS concludes that the performance standard implemented
at the overall stock level results in reliable catch estimates for
monitoring sector ACEs.
The monitoring program, including the application of the
performance standard, must be implemented consistent with the different
goals and objectives of sector monitoring programs, as well as the
requirements of the other National Standards, which requires a
balancing of competing objectives. As NMFS discussed in Item 14 of the
preamble, in addition to the revised goals and objectives in Framework
48, NMFS will specifically take into account National Standards 2, 7,
and 8 in making its determination of the appropriate level of at-sea
monitoring coverage for sectors on an annual basis. These National
Standards specifically speak to using the best scientific information
available, minimizing costs and avoiding unnecessary duplication where
practicable, taking into account impacts on fishing communities, and
minimizing adverse economic impacts to the extent practicable. In
addition, to account for any lack of absolute precision and accuracy in
estimating overall catch by sector vessels, uncertainty buffers are
deducted before specifying commercial groundfish fishery sub-ACLs. In
light of all these requirements, and in absence of any evidence
provided by the commenters to the contrary, NMFS concludes that sector
monitoring requirements overall, including the performance standard
applied at the overall stock level, are sufficient to monitor sector
catch toward ACEs.
Comment 26: CLF, NSC, and CCCHFA supported the provision to reduce
at-sea monitoring coverage on trips targeting
[[Page 26143]]
monkfish in the Southern New England. Commenters supported this measure
because it would reallocate limited resources and coverage to trips
that catch groundfish. CLF called for the development of a full
retention/electronic monitoring program for such trips, because it
would provide valuable catch data and compliance incentives, rather
than reducing coverage. CLF also urged NMFS to monitor this exemption
to ensure it does not create a loophole for groundfish discards.
Response: NMFS agrees that this measure would prioritize limited
resources and monitoring coverage for trips that catch groundfish.
Currently these trips that catch little to no groundfish are receiving
the same level of coverage as other sector trips, with no resultant
benefits to the overall precision and accuracy of groundfish discard
estimates. By exempting these trips from some level of at-sea
monitoring coverage, those resources can be directed to cover trips
with actual catches of groundfish and, thereby, improve the estimates
of groundfish discards. For these reasons, has approved this measure
through this final rule.
NMFS understands CLF's concerns that this measure could create a
loophole for increased discards of groundfish. However, given the size
of mesh used on these trips (10 in, 25.4 cm), it is unlikely that catch
of groundfish on these trips would increase beyond those analyzed in
the development of Framework 48.
GB Yellowtail Flounder Management Measures
Comment 27: NMFS received three comments opposing a separate GB
yellowtail flounder discard rate stratum for statistical area 522. NSC,
CLF, and one individual opposed this measure because it would
complicate monitoring and increase administrative burden to NMFS and
sectors without any real benefit. CLF expressed concern that this
measure would create another loophole for misreporting of catch of GB
yellowtail flounder by vessels on unobserved trips and urged NMFS not
to approve this measure until it can implement measures to reduce
misreporting.
Response: NMFS shares the commenters concerns that this measure
could complicate monitoring and increase the administrative burden for
sectors and NMFS without any measurable benefits. Because of the
potential added cost of implementing and administering this measure, it
may increase costs more than it provides benefits to the fishing
industry or the efficient management and monitoring of catches, which
would not be consistent with National Standards 5 and 7 of the
Magnuson-Stevens Act. Both sectors and NMFS would have to modify quota
monitoring programs and reports to accommodate the new strata,
increasing the administrative burden for sector managers and NMFS. NMFS
also remains concerned about how this revised strata, combined with
other changes to the discard rate method in FY 2013, will affect the
variance of discard rates and thereby affect our ability to achieve the
performance standard for sector monitoring at recommended coverage
rates. As CLF notes, it is also possible that this measure could
further complicate monitoring and increase uncertainty of catch
estimates by creating an incentive to misreport catches of GB
yellowtail flounder on unobserved trips as having been caught in
statistical area 522 in order to get a reduced discard rate.
On the other hand, this measure would have no real benefits for a
sector that could not be achieved under the existing discard rate
scheme. A separate discard rate in statistical area 522 could benefit
an individual vessel fishing in deeper water in this area with a lower
GB yellowtail flounder discard rate that would not be influenced by
higher GB yellowtail flounder discards by other vessels in its sector
fishing elsewhere on Georges Bank. However, the sector's fishing season
on GB would still be limited by the total catch of GB yellowtail
flounder by all its member vessels. If some vessels in the sector
continued to have high discard rates of GB yellowtail flounder on other
parts of Georges Bank, the entire stock area could still close early in
the season, including statistical area 522. This finer stratum would
not free a sector from having to manage its vessels' effort to extend
its fishing season next year.
Thus, NMFS agrees with commenters approving this measure would
increase the cost and administrative burden of sector monitoring for
sectors and NMFS without any corresponding benefits to sectors. NMFS
has concluded that this would not be consistent with the requirements
of National Standard 5 and 7 and NMFS has disapproved this measure in
Framework 48.
Comment 28: AFM, the Portland Fish Exchange, and one individual
commented in support of the revised GB yellowtail flounder discard rate
strata for sector vessels. Commenters believed this measure would more
accurately reflect actual discard rates of GB yellowtail flounder in
statistical area 522, and enable sector vessels to have a longer
fishing season on Georges Bank.
Response: NMFS agrees that finer scale strata would allow discard
rates to more closely reflect actual discard rates over smaller areas.
However, as discussed fully in NMFS's response to Comment 27, NMFS
disagrees that this measure would have any real benefits for a sector
that could not be achieved with existing discard rate strata. A
separate discard rate in statistical area 522 could benefit an
individual vessel fishing in this area with a lower GB yellowtail
flounder discard rate. However, this measure alone would not prevent a
sector's fishing season on GB from ending prematurely. As a result of
this new strata, GB yellowtail discard rates in the rest of GB would be
higher and, thus, if the sector did not also manage yellowtail flounder
discards on other parts of GB, it would still be limited by the total
catch of GB yellowtail flounder by all its member vessels. As analysis
showed in the Framework 48 EA, the new strata are unlikely to affect
the overall discard estimates of GB yellowtail flounder, meaning that
sector vessels would still have to avoid GB yellowtail flounder in
order to prolong their fishing season. The most effective way to
prolong a sector's fishing season on GB would be through active
management of effort and catch by its member vessels. If a sector
wanted to incentivize its vessels to fish in deeper water and avoid
yellowtail flounder, or ensure that one member's high yellowtail
flounder discard rate does not penalize another vessel that avoids
yellowtail flounder, they could differentially charge individual member
shares based on discard behavior. Sectors can do this under the
existing discard strata scheme, without unnecessarily complicating
monitoring for other sectors. In contrast, the proposed measure could
have real effects on monitoring practices for both NMFS and sectors.
Implementing this measure would increase administrative costs and
burden associated with monitoring and without any real benefits for
sectors, which would reduce efficiency and would not be consistent with
National Standards 5 and 7. NMFS believes the reduced efficiency is not
justified in light of the lack of real benefits from this measure as
discussed in the response to the previous comment on this measure. For
these reasons, NMFS has disapproved this measure in Framework 48.
List of Allowable Sector Exemption Requests
Comment 29: Over 75,000 comments were received from various groups
and individuals opposing the proposed change to allowable sector
exemption
[[Page 26144]]
requests as it pertained to year-round groundfish closure areas. Many
of these comments were form letters submitted through online
nongovernment organization campaigns. By comparison, a limited amount
of comments were received supporting the proposed change to allowable
sector exemption requests.
The comments opposing the exemption proposal that would allow
sectors to request access to year-round closure areas raise several
objections. While some of the specific comments raise slightly
different points, the major issues raised are enumerated below. Some of
the topics have a great deal of interrelatedness. By categorizing the
issues in this manner, NMFS can provide a focused series of responses.
The primary issues raised are:
1. Commenters stated the areas should not be opened because they
provide important protection for critical life stages and spawning
activities of critically depressed fish stocks. Many comments also
stated the stocks in question warrant additional closed area
protections, not less.
2. Commenters stated that access to closed areas would provide only
short-term nominal economic gain but could cause long-term biological
impacts. Commenters assert that because of this the areas should remain
closed.
3. Many commenters presented arguments alleging the Framework 48
action illegally segments the required NEPA analysis from the Council's
ongoing Omnibus Habitat Amendment. Commenters assert that NMFS and the
Council are seeking to avoid development of an Environmental Impact
Statement (EIS) to evaluate the potential impact of providing potential
access to closed areas.
4. Some commenters allege the decision to provide sector exemptions
for closed area access was made before the results of analysis were
available.
5. Many comments were received stating the closed area
consideration requires an EIS analysis under NEPA as it is significant
as defined by NEPA criteria, the Framework 48 analysis is insufficient,
and the Framework 48 EA's Finding of No Significant Impact (FONSI)
conclusions are not supported by the available analysis.
6. Commenters stated the impacts to Marine Mammal Protection Act
(MMPA) and Endangered Species Act (ESA) protected species are
inadequate and, in some regards, completely absent from the Framework
48 analyses.
7. Commenters state the rulemaking and analytical procedure used
for Framework 48 was inappropriately conducted, insufficient, and
circumvented necessary public participation and comment.
8. Commenters stated the closed areas in question are
mischaracterized as redundant mortality control closures in Framework
48. Commenters state that the areas under consideration were created
for and provide much broader benefits than just controlling fishing
mortality.
9. Commenters allege Framework 48 analysis did not analyze a
sufficient range of alternatives when considering closed area access
through sector exemption.
10. Commenters assert the scope and scale of the action requires an
FMP amendment, stating the action cannot be taken through a framework
adjustment to the FMP.
Response: The comments opposing modification of the allowable
sector exemption request provisions are misapplied with respect to the
Framework 48 rulemaking process. NMFS is not permitting access to year-
round closed areas through the measures implemented in this final rule.
Nor is NMFS modifying or changing any closed areas or essential fish
habitat areas or boundaries. This rule only modifies the list of
allowable sector exemptions under current regulations. This
modification itself does not provide any access to groundfish closed
areas at this time. This action merely allows sectors the opportunity
to request access to portions of year-round closed areas through their
annual sector operations plans by removing the prohibition on granting
such requests. A more extensive analysis than was conducted for
Framework 48 is necessary for NMFS to make any determination on
potential sector access to closed areas for FY 2013, or in subsequent
fishing years.
The Regional Administrator, in conjunction with requesting sectors,
is obligated under the sector exemption process established in
Amendment 16 to consider whether to approve sector exemption requests
that are not prohibited under the FMP. To do so, analysis of the
requested exemptions is necessary to determine if the exemption in
question can be approved. From the Amendment 16 final rule preamble (75
FR 18276; April 9, 2010):
Sectors may [still] request and analyze additional exemptions as
part of their yearly operations plans, but such exemptions need to
be approved by the Regional Administrator.
The accompanying regulations for the sector exemption approval
process are found at Sec. 648.87(c)(1) and(2). Summarized, these
regulations specify that NMFS, through the Regional Administrator, will
allow exemptions that are consistent with the goals and objectives of
the FMP and conduct the approval process consistent with the
Administrative Procedure Act (APA) and other applicable law. The other
applicable law includes, among others, NEPA, the Magnuson-Stevens Act,
MMPA, ESA, and the Regulatory Flexibility Act.
By lifting the prohibition on sectors requesting access to year-
round closed areas, NMFS will evaluate requests in the same process as
any exemption request consistent with the process outlined in Amendment
16 and past practices. Sector requests were made in the sector's
respective 2013 operations plans submitted in September 2012 in
anticipation of this prohibition being lifted in this action to meet a
May 1, 2013 effective date. However, NMFS reiterates that no decisions
on sector exemption requests have been made to access closed areas in
conjunction with Framework 48 since this framework simply addresses a
procedural issue pertaining to closed area openings. Further, since the
necessary analyses have not yet been completed, an additional sector
rule to consider and potentially approve any year-round closure
openings would be delayed beyond May 1. Indeed, NMFS must still decide
which, if any, exemptions will be granted, and, if granted, whether
seasonal, area, gear or other types of limitations are necessary to
ensure any exemption will be consistent with the conservation and
management requirements of the groundfish FMP and the Magnuson-Stevens
Act. The analysis in Framework 48 is based, in part, on a preliminary
analysis by the Closed Area Technical Team (CATT) that provides an
initial overview of potential impacts. However, the analysis did not
specifically analyze the actual impacts of granting any exemptions
because Framework 48 is not intended to make decisions concerning the
closed area exemption requests. The level of detail in these analyses
for Framework 48 was sufficient for the type of change implemented in
Framework 48 but is not sufficient to determine if, when, or how
sectors may be permitted closed area access through exemptions.
Accordingly, the change implemented by Framework 48 to allow NMFS to
consider granting sectors access to closed areas has no actual impacts.
NMFS and the Council initiated the process of evaluating potential
sector access to closed areas late in 2012 when the issue was first
raised at the Council level. The CATT was formed in part for this
purpose and provided a cursory
[[Page 26145]]
analysis of closed areas and the potential impacts of allowing fishing
in these areas for Framework 48. CATT analysis is ongoing and continues
to evaluate in greater detail the appropriate areas needed to provide
protection to rebuilding groundfish stocks. Many of the issues and
concerns raised in the extensive public comments submitted for
Framework 48 are important considerations in NMFS' ongoing analysis. In
response to the concerns raised, the Council limited the potential
access to the closed areas only to the portions that did not infringe
on currently defined habitat areas or any currently proposed areas
included in the draft Omnibus Habitat Amendment. NMFS is concerned that
any access provided to closed areas must be done in a responsible
manner such that stock recovery is not impeded, protected species are
not negatively impacted, and sensitive habitat and life stages are
protected. This ongoing analysis, when complete, will be provided to
the public with opportunity for review and additional comment,
consistent with the sector exemption review process conducted for all
sector exemption requests and APA.
NMFS has initiated an EA in connection with the separate rulemaking
process concerning these requests to conduct the specific environmental
impact evaluations for the closed area sector exemption requests. In
connection with the separate rulemaking concerning these requests, if
the ongoing analysis determines that a FONSI cannot be supported for
access to the closed areas, the agency may elect to develop an EIS
prior to proceeding or cease closed area access consideration until
such time that the Council's Omnibus Habitat Amendment is completed.
Once informed by analysis, NMFS will also publish a proposed rule
outlining what type of access, if any, may be granted to sectors as
exemptions in the 2013 fishing year. The proposed rulemaking would also
outline any conditions required for exemption use, if granted.
For example, as was stated publically by the Northeast Regional
Administrator in the December 2012 and January 2013 Council meetings,
NMFS is analyzing the potential to provide seasonal access with
selective gears to Closed Areas I and II, and the Nantucket Lightship
Closed Area, to target healthy fish stocks. Generally, NMFS is
analyzing in what months closed areas may be accessed to avoid peak
spawning activity of depressed fish stocks, gear conflicts, and
encounters with MMPA and ESA protected species. NMFS is also evaluating
habitat-related impacts. The analysis is examining what selective gears
may better minimize catch of depressed fish stocks while providing
strong catches of healthy stocks. The initial analysis along with
substantial public opposition to opening closed areas in the Gulf of
Maine, i.e., the Western Gulf of Maine and Cashes Ledge Closed Areas,
suggest that it may not be possible or desired to provide access to
these areas in FY 2013.
NMFS has also stated in the proposed sector operations plan
approval rule (78 FR 16220; March 14, 2013) that it is considering a
100-percent monitoring requirement for participation in any closed area
exemption granted for FY 2013. NMFS acknowledges the potential costs
associated with monitoring are substantial and may limit the utility of
closed area access, if provided for FY 2013. NMFS views this
requirement as a necessary component to responsibly monitor activity in
closed areas, if access is permitted in FY 2013. NMFS has already
committed to providing funding for required at-sea monitoring for
general fisheries and is looking into other possible means to fund all,
or part, of the monitoring requirements being considered for potential
approval of requests for access to year-round closure areas.
NMFS has been clear that the specific evaluation of closed area
access would occur as a separate step through an independently
severable analysis and, if warranted, rulemaking. NMFS currently
anticipates that the ongoing analysis will continue through mid-June.
Should the analysis support responsible alternatives for sector access
to closed areas, proposed rulemaking would occur this summer.
The issues raised in public comment for this rule, as NMFS has
pointed out, will be analyzed if and when NMFS decides to propose
granting any sectors access to closed areas. Most of the issues raised
in these comments already have been identified by NMFS as part of the
closed area sector exemption analysis initiated in early 2013 and
helped inform the Council in limiting closed areas access to avoid
conflicts with existing and future habitat concerns.
The removal of the prohibition on requesting access to specific
portions of closed areas as a sector exemption implemented by this rule
is not self-actuating and in that sense is more procedural in nature.
It removes a regulatory impediment to granting such requests but does
not, itself, provide closed area access or predetermine that such
access would be granted when requested. NMFS has determined, however,
that the concept of allowing access to closed areas on a limited and
controlled basis that NMFS can prescribe through the sector exemption
process is supportable and necessary, consistent with Magnuson-Stevens
Act, National Standards and other requirements, to provide possible
mitigation of negative impacts resulting from severe cutbacks in catch
limits by facilitating achieving optimum yield (OY) for some groundfish
stocks. For that reason, NMFS does not believe it is necessary to fully
analyze potential, speculative impacts that do not result from this
action nor to disapprove the procedural measure allowing sectors to
request and be granted access based on the specific objections raised
by public comment. As long as the types of concerns raised by the
public regarding access to closed areas can be adequately addressed or
accounted for in the sector exemption process, there is no basis for
disapproving the procedural measure in Framework 48 allowing access to
be granted. To illustrate that potential, the following provides NMFS'
preliminary responses to each enumerated objection based on NMFS'
ongoing analysis on whether to grant limited access to closed areas to
sectors:
1. The areas should not be opened because they provide important
protection for critical life stages and spawning activities of
critically depressed stocks. NMFS acknowledges that the status of many
key NE groundfish stocks is poor. NMFS is concerned about potential
impact on stock recovery that may result from access to closed areas
and this is a key investigation being developed in the ongoing closed
area sector exemption analysis. However, no decision has been made at
this time on whether sectors will be granted access to closed areas in
FY 2013, nor has a decision been made on how access may be structured
if granted.
The CATT is deeply involved in ascertaining how potential changes
in closed areas as part of the Omnibus Habitat Amendment may impact
fish stocks. NMFS is an active member of the CATT and has already been
making use of CATT-generated analyses in its sector exemption
evaluation. NMFS is conducting independent evaluation of the specific
impact of seasonal access with selective gear in Closed Areas I and II,
and the Nantucket Lightship Closed Area, as part of the closed area
sector exemption evaluation process. NMFS's analysis is geared toward
identifying key times in which access to closed areas may potentially
disrupt or otherwise impact spawning activities with the intent of not
providing closed area access during such times. The
[[Page 26146]]
analysis is ongoing and will be provided to the public with an
anticipated availability of mid-summer, 2013.
2. Access to closed areas would provide only short-term nominal
economic gain but could cause long-term biological impacts. NMFS agrees
that the limited analysis conducted for Framework 48 indicates that
economic benefit is difficult to predict one way or the other. If
economic benefit is small, that may mean that the closed areas are not
that important to groundfish stocks and access to the closed areas is
not detrimental. On the other hand, if there are significant amounts of
groundfish stocks in the closed areas, it may be important to allow
fishing on a controlled and conservative basis in order to maximize OY
for those stocks. To be sure, as indicated in these analyses, the long-
term impact on recovering stocks in these closed areas is of paramount
importance. But to deny any opportunity to fish in the closed areas
unnecessarily limits the possibility of providing the fishing industry
the opportunity to catch as much fish as possible as long as the long-
term health of groundfish stocks is protected.
3. The action illegally segments the required NEPA analysis from
the Council's ongoing Omnibus Habitat Amendment. NMFS disagrees that
either Framework 48 or the as-of-yet completed closed area sector
exemption request evaluation segments the NEPA analysis. Classic
segmentation concerns raised by commenters pertain only to situations
wherein the responsible agency seeks to avoid development of an EIS.
This is not the case here. In its broadest sense, segmentation occurs
when an agency impermissibly narrows the scope of its NEPA analysis by
either failing to evaluate the environmental impacts of an entire
multi-stage decision where irreversible commitments are made at the
initial decision point without consideration of the environmental
impacts of later stages; or, where the agency excludes connected
actions (i.e. those that are interrelated or interdependent) from the
scope of its NEPA analysis. Neither of those circumstances is present
in this case. In addition, the initial decision to allow sectors to
request exemptions from closed sectors does not make any irretrievable
commitment. That is, it would not commit the agency to any future
course of action that will cause adverse consequences to the
environment. Again, prior to approving or disapproving any specific
request for access, the agency will consider the environmental impacts
and prepare the appropriate level of NEPA analysis; i.e. an EA or EIS.
Moreover, the actions at issue are not interdependent or interrelated;
each is supported by its own rationale and has independent utility as
explained below. The EA for Framework 48 rightly supports a FONSI, in
large part, because rescinding the prohibition on sectors requesting
specific closed area exemptions does not itself result in actual
impacts on the environment, nor does it cause indirect effects that are
later in time but reasonably foreseeable. Any potential indirect
effects are merely speculative. NMFS has acknowledged that an EIS will
be completed if a FONSI cannot be supported based on the EA evaluating
the closed area sector exemption requests. The EA is serving its
intended purpose to facilitate our determination as to whether any
significant impacts will result from a decision on closed area
exemption requests, and thus whether an EIS may be required for that
action. If NMFS determines that the impacts from a later action to
grant some level of access to closed areas would necessitate
consideration in an EIS, and NMFS decides to move forward with said
action rather than wait for completion of the ongoing Omnibus Habitat
Amendment, a Notice of Intent would be published in the FR to make the
public aware of the agencies intent to prepare an EIS. As indicated
here, NMFS is interested in developing potential alternatives for
closed area sector exemption analysis that seek to minimize potential
impacts. To the extent that commenters contend that this Framework 48
measure is an attempt to unlawfully ``segment'' the larger Omnibus
Habitat Amendment to avoid an EIS, those concerns are misplaced. In
support of their comments, they cite to federal court decisions that
define segmentation as splitting federal actions into smaller units to
avoid developing an EIS. The Council and NMFS have every intention to
and are preparing an EIS for the Omnibus Amendment. Moreover, the
inclusion of the procedural measure to allow access to closed areas is
not being ``split off'' from the Omnibus Habitat Amendment. The measure
is a discrete action, independently justified and analyzed that does
not foreclose any consideration of alternatives in the Omnibus Habitat
EIS nor does it result in obviating the need to prepare an EIS for the
Omnibus Habitat Amendment. While the Framework 48 measure may involve
similar issues as the Omnibus Habitat Amendment, they are not directly
connected actions. NEPA is a procedural statute intended to require
full analysis of environmental impacts and is not intended to dictate
outcomes. All actions that related to closed areas do not have to be
evaluated within the scope of a single NEPA document. The fact that the
Omnibus Habitat Amendment is examining closed areas in a separate
action through an EIS does not preclude the Council and NMFS'
consideration and adoption of independent measures in the meantime that
are tangentially related to the amendment, as long as those actions
independently satisfy NEPA requirements. Moreover, even if there were a
credible basis for concluding that the Framework 48 measures was a
splitting off of an action from the Omnibus Habitat Amendment, for
which there is not, the Framework 48 measure meets the test cited by
commenters concerning segmentation. The measure is a discrete action,
independently justified and analyzed that does not foreclose any
consideration of alternatives in the EIS being prepared for the Omnibus
Habitat Amendment nor does it irretrievably commit resources. Thus,
NMFS considers the scope of the EA supporting the implementation of the
Framework 48 measure allowing the granting of access to closed areas to
be consistent with NEPA.
4. The decision on closed areas was made before the results of
analysis were available. NMFS disagrees that any decision to grant
access to closed areas has been made. As has been stated previously,
the action in Framework 48 only removes the prohibition on sectors
requesting year-round closed area exemptions. It does not grant or
guarantee any such exemptions will be provided much less how any
exemptions would be structured, if granted. NMFS has stated multiple
times its intent to conduct thorough analyses to inform decision-making
on the requests for closed area sector exemptions. This analysis is
ongoing and, as such, no decisions on closed area access have been made
at the time of this rule's publication. Any access proposed will be
fully informed by rigorous analysis that began early in 2013 and is
anticipated to be completed during the summer of 2013. Rulemaking,
consistent with APA, will also occur as needed.
5. The action requires an EIS analysis under NEPA as it is
significant as defined by NEPA criteria, the Framework 48 analysis is
insufficient, and the FONSI conclusions are not supported by the
available analysis. NMFS disagrees with the assertions made by the
commenters. Given the action implemented in Framework 48 to allow
sectors to request exemption from
[[Page 26147]]
closed areas not designated for habitat conservation, the analysis was
wholly appropriate. In fact, it went beyond what was necessary given
that the procedural change involved with the Framework 48 action does
not itself result in any impacts on the environment. Because the action
in Framework 48 merely removes a regulatory prohibition and does not
actually provide any closed area access, the FONSI determinations are
appropriate. NMFS acknowledges that the analysis conducted by the
Council in the Framework 48 EA does discuss potential impacts if closed
area access is granted. However, NMFS asserts that the potential
impacts discussed are applicable to the cumulative impacts of the
action, but are not determinative in the FONSI, nor are they
specifically relevant to the Framework 48 measure because no actual
impacts will occur.
As previously stated, NMFS has initiated an EA for evaluation of
potential closed area sector exemptions in FY 2013. However, the
substantive analyses needed to determine if a FONSI can be supported
have not yet been completed. NEPA process is clear that if a FONSI
cannot be supported, then an EIS must be developed if the agency wishes
to continue the development of the action. NMFS is aware of the timing
considerations involved with the Council's initial request to consider
sector closed area access exemptions in FY 2013. If analyses conclude
that a FONSI determination cannot be made for potential closed area
exemptions, even if the access is constrained in a manner to reduce or
eliminate potential impacts, NMFS and the Council will need to evaluate
what is the most logical next step: To develop a separate EIS to
consider only potential sector closed area exemptions or to defer any
access considerations until such time that the Council's Omnibus
Habitat Amendment is completed. It is neither possible nor appropriate
at this time to try and determine if a FONSI can be supported for
sector year-round closed area exemptions.
6. The impacts to species afforded protections under MMPA and ESA
are inadequate and, in some regards, completely absent from the
Framework 48 analyses. NMFS acknowledges that substantial additional
analyses are necessary to fully evaluate potential marine mammal and
ESA listed, threatened, and candidate species impacts associated with
potential closed area access prior to considering if, when, and how
access may be provided. Much of the Framework 48 analysis was a cursory
evaluation of potential future impacts if sectors were provided access
to closed areas. The impacts on MMPA and ESA species cannot be
specifically considered or determined until it is known what
limitations may be prescribed on closed area access if access is
granted (see preceding response pertaining to analysis). However, the
conclusions reached for cumulative effects analysis and FONSI statement
determinations consider the procedural nature of the actual change
implemented by Framework 48. Specifically, the action to rescind the
prohibition on sectors requesting exemptions from closed areas without
providing any actual access to such areas. NMFS has initiated an ESA-
mandated Section 7 consultation and is reviewing potential impacts to
marine mammals in the closed area sector exemption consideration. As
previously stated, these analyses will be made available for review and
comment in conjunction with proposed rulemaking this summer. NMFS was
aware of many of the issues and concerns raised in public comment on
Framework 48 and will make use of all the comments received to better
ensure that the ongoing sector exemption review thoroughly examines the
potential impacts for use in decision-making.
7. The rulemaking and analytical procedure used was inappropriately
conducted, insufficient, and circumvented necessary public
participation and comment. NMFS disagrees with assertions made by the
commenters. NMFS reiterates that it has been forthright about the
potential closed area sector exemption process since outlining the
sector exemption approach as a possibility for considering closed area
access in FY 2013. For clarity, here is the process as it has been
described and occurred: First, the Council considered and ultimately
recommended to remove the prohibition on sector exemption requests on a
limited basis for year-round closed area access not designated as
habitat areas in Framework 48. This component was developed though the
Council process and provided substantial opportunity for public
participation and input. Many of the same objections and comments
raised in connection with this rule were considered in the Council's
decision to include the Framework 48 measure and influenced its
decision to limit access to non-habitat areas. NMFS has conducted
Framework 48 rulemaking consistent with the APA by providing
opportunity for public comment.
Concurrent to NMFS review and rulemaking for the Framework 48
component, sectors were informed that they could submit closed area
exemption requests in their FY 2013 sector operations plans in the fall
of 2012 in anticipation that access could be potentially approved as
early as the start of FY 2013, if the Framework 48 procedural measure
was approved. This was done even though the prohibition on such
requests was still in effect. The purpose of this was twofold: To
better understand the scope and scale of potential requests moving
forward in the exemption review and analysis and to help streamline the
review process so that if closed area access was provided at some point
in FY 2013, some of the administrative process could be frontloaded.
Finally, NMFS explained that the agency would undertake the
necessary review and analysis of closed area sector exemption requests
if the provisions in Framework 48 were approved. Now, with this rule,
NMFS has approved the Framework 48 provisions that allow sectors to
request closed area exemptions, interested sectors have submitted
requests for FY 2013, and NMFS is continuing the process of reviewing
and analyzing those requests. This is not dissimilar to the normal
process undertaken for sector exemption review except that a regulatory
change was needed to make the requests in question legal.
Another difference in the closed area consideration that differs
from the standard sector exemption review process is that there is no
time certain needed for completion of the review process. Closed area
exemption analysis was anticipated to be extensive and it was doubtful
from the onset that analysis would be complete for the May 1, 2013,
start of the fishing year. Because the closed area sector exemption
evaluation is not tied to the start of the fishing year, this affords
additional time for review, analysis, and action development and,
because the concerns raised in the Framework 48 public comment,
additional time for public review and comment through normal APA
rulemaking. NMFS is proceeding as quickly as possible; however, there
are substantial analyses that need to be completed as part of the
closed area access consideration process.
We are hopeful that analyses will be completed in time to allow the
public and Council an opportunity to review the analytical work prior
to the June Council meeting.
8. The areas in question are mischaracterized as redundant
mortality control closures. NMFS acknowledges that the mortality
control characterization of those portions of closed areas not
specifically designated
[[Page 26148]]
as habitat conservation areas has become a misapplied term of art. The
record clearly shows that the areas in question were created with
several considerations in mind, including protection for spawning
stocks and improvement of benthic habitats. The argument that any
additional constraints on mortality under a ``hard TAC'' or ACL system
are redundant is unsubstantiated. By the logic implied by this
statement, no additional management constraints other than a catch
limit would be necessary to successfully manage fisheries. Clearly,
there are benefits to establishing additional controls on fisheries
such as gear restrictions to minimize take of juvenile fish or to
reduce take of other more depleted stocks. NMFS and the Council's CATT
are conducting analyses that seek to provide information on the
potential stock benefits of providing protections to critical life
stages and/or spawning periods through restricted time and area access
to existing closed areas.
9. An insufficient range of alternatives were analyzed. NMFS
disagrees. In considering whether a sufficient range of alternatives
have been examined in the context of fishery management, it must be
acknowledged that each framework or amendment is incremental in nature
and builds on extensive examination of myriads of alternatives of how
best to manage a fishery. So, any consideration of specific new measure
has benefitted from the examination of many alternatives in previous
actions. For example, one commenter claims that exempted fishing
permits (EFPs) should have been considered as an alternative for
accessing closed areas. This option was discussed and considered by the
Agency in the initial discussions on how to potentially provide closed
area access in FY 2013. EFPs can be issued by NMFS under existing
regulations and, as such, are an option that requires no specific
Council analysis. If used, the EFP process would conduct the necessary
analyses.
During the development of Framework 48, the Council considered and
rejected potential access to habitat closed areas as well as several
modifications to closed area boundaries. The status quo, wherein no
modification to the sector exemption prohibition list was made, was
analyzed in Framework 48. The remaining alternative analyzed was, as
previously described, the procedural change in the sector exemption
prohibition list to allow sectors to request exemptions for access to
year-round closure areas not defined as habitat closure areas. Having
rejected alternatives that modified closed area boundaries, the
remaining option of adopting the procedural change considering the non-
habitat areas that remained for consideration was sufficient. As
previously stated, this was the only action undertaken by Framework 48.
Potential alternatives for actual closed area exemptions will be
developed by NMFS as part of the sector exemption review. NMFS has
previously stated it is considering a sub-set of the available so-
called ``mortality'' closed areas for potential sector exemptions. To
date, NMFS has indicated it is interested in examining alternatives
that permit seasonal access to select areas with selective gear types
designed to increase access to healthy stocks while minimizing impacts
on depressed fish stocks and ESA-listed, threatened, and candidate
species, and marine mammals.
10. The action cannot be undertaken by a framework adjustment to
the FMP. NMFS disagrees that consideration of closed area sector
exemption access cannot be undertaken through framework adjustment to
the FMP. Furthermore, NMFS asserts that the Oceana v. Evans (389
F.Supp.2d 4 (2005)) decision is not applicable in the context raised by
commenters.
Section 648.90 of the NE Multispecies regulations contains among
other things, a description of the Council's FMP framework adjustment
process. Section 648.90(a)(2)(iii) lists items that may be addressed
through a framework adjustment. This list includes changes to closed
areas, management boundaries, essential fish habitat, and, most on
point for this action, sector administration provisions and sector
allocation requirements and specifications.
Several commenters assert that the adjustment contemplated access
to year round closed areas through sector exemption requests, is beyond
the scope of what is permissible in a framework adjustment. They cite
in support of their position that the action cannot be undertaken
through framework adjustment, citing Oceana v. Evans that states that
allowing access to closed areas is a fundamental change to the FMP and
is also inconsistent with the goals and objectives established for the
FMP.
Oceana v. Evans specified that an FMP amendment would be necessary
when a new concept or radical changes to an existing concept were made
in a way not considered in the previous FMP, prior amendments, or in
hearings held in preparation of such actions. The findings in that case
are distinguishable from the facts in Framework 48. The FMP involved in
that case, as contrasted to the framework, did not have specific
listing of a frameworkable measure to alter the boundaries of EFH.
Moreover, closed area access is not a new concept in the FMP, nor is it
a radical change to procedurally change the prohibition on sectors
requesting closed area access exemptions. Various levels of access and
modification of closed areas has occurred on numerous occasions since
the inception of the FMP and though several subsequent amendments. As
previously stated, all the Framework 48 action does is remove the
prohibition on sectors requesting access to closed areas through
exemptions. It does not change the boundaries of the closed areas or
EFH, nor does it fully open the closed areas. It only permits the
potential for limited access to year-round closed areas by sectors.
Additional analysis is necessary to determine if, when, and how sectors
may be exempted to access these closed areas.
Beyond the Framework 48 action, the areas where NMFS is examining
potential sector access through exemptions are all areas that are open
seasonally and to specific gears through either Special Access Programs
or scallop rotational access areas. Inherent in the process previously
outlined for review and analysis of potential sector exemptions, i.e.,
the next phase under consideration by NMFS, is the need to ensure
consistency with the goals and objectives of the FMP. If the action
eventually contemplated by NMFS were inconsistent with the goals and
objectives, then it would be a fair assertion that the action in
question should be developed through an FMP amendment. Because NMFS
intends to analyze alternatives that seek to minimize potential
negative impacts and, as a result, remain wholly consistent with the
FMP objectives, it asserts that the sector exemption evaluation for
closed area access can be developed through a framework adjustment.
In summary, NMFS asserts that the action implemented by Framework
48 is primarily procedural in nature with no actual environmental
impacts, and, as such, the majority of comments and issues raised do
not apply. Rather, they are issues to be addressed moving forward in
the sector exemption review process. NMFS has determined that the
concept of allowing access to closed areas on a limited and controlled
basis through the sector exemption process is supportable and
necessary, consistent with Magnuson-Stevens Act, National Standards and
other requirements. The access, if ultimately granted is designed
[[Page 26149]]
to provide possible mitigation of negative impacts resulting from low
FY 2013 catch limits by facilitating achieving OY for some groundfish
stocks. NMFS intends to only consider potential access to the closed
areas in areas that do not infringe on currently defined habitat areas
or any currently proposed areas included in the draft Omnibus Habitat
Amendment. Furthermore, NMFS is developing the analyses around
alternatives that provide potential seasonal access to Georges Bank and
Southern New England with selective gear. NMFS has been and continues
to work on analyses that seek to address many of the issues raised.
NMFS anticipates providing information on the status of the analysis
and rulemaking at the June 2013 Council meeting.
Requirement To Stow Trawl Gear While Transiting
Comment 30: Eight commenters, including the Council, the Portland
Fish Exchange, AFM, NSC, MEDMR, and three individuals, supported
removing trawl gear stowage requirements for groundfish vessels.
Commenters stated that the gear stowage requirements are no longer
useful and that VMS is sufficient to enforce transiting of closed
areas. Some commenters urged NMFS to approve this measure because the
existing requirements are unsafe. One commenter suggested that the
existing requirements actually make it easier for a vessel to illegally
fish in a closed area, because it gives the illusion that trawl gear is
properly stowed from the air. The Council also noted that neither the
USCG nor NMFS representatives opposed the proposed measure when it came
up for vote at Council meetings.
Response: NMFS disagrees that the existing trawl gear stowage
requirements are no longer useful and that VMS is a sufficient
alternative tool for enforcement of closed areas. As discussed in Item
4 of the preamble to this final rule, a few VMS positions or a reduced
calculated speed in a closed area is not sufficient to enforce the
prohibition on fishing when vessels are allowed to transit a closed
area. The purpose of gear stowage requirements were not just to make
stowed gear visible from the air, but to increase the time it would
take for vessels to hide illegal fishing activity before a boarding by
enforcement personnel at sea. They could also be a deterrent by
increasing the likelihood of being caught. Eliminating these
requirements for only some vessels would complicate enforcement and
could make it difficult to detect and prosecute unlawful fishing in
closed areas, which would undermine the effectiveness of these areas to
achieve the objectives for which they were established as conservation
and management measures in the FMP, including the protection of
spawning and juvenile fish, habitat, and protected species. To the
extent that closed areas were established to comply with sections
303(a)(1) and (7), and National Standard 9 of the Magnuson-Stevens Act
to rebuild or ensure the long-term sustainability of fish stocks and
fisheries, to minimize the adverse effects of fishing on habitat, or
minimize bycatch of certain stocks or protected species, undermining
these measures would be inconsistent with these provisions. Although
the Council commented that the requirements are a relic of an earlier
management regime, it did not provide any additional rationale to
address NMFS concerns that eliminating these requirements would
undermine the conservation objectives of closed areas and be
inequitable to vessels in other FMPs. It is also not clear why the
Council believes these measures do not apply in a sector management or
ACL and AM system, when sector vessels are still prohibited from
fishing in closed areas.
Although this measure would have some safety benefits for
groundfish vessels, it would have been inconsistent with National
Standard 4 of the Magnuson-Stevens Act requiring measures to be fair
and equitable because it does not extend the safety benefits to other
fisheries. Framework 48 also did not provide sufficient rationale as to
why eliminating these requirements, rather than modifying them,
satisfied the criteria of National Standard 10 to reduce risk while
meeting the needs of conservation and management. For these reasons,
NMFS has disapproved this measure in Framework 48.
NMFS does share commenters concerns, however, that the existing
trawl gear stowage requirement can be unsafe for crew in bad weather.
That is why NMFS will be initiating a separate management action to
consider modifications to the gear stowage definition recommended by
the Council's VMS/Enforcement Committee to address safety concerns
while still meeting the needs of conservation and management. With
respect to one commenter's concern that this measure actually makes it
easier for vessels to hide illegal fishing activity, the VMS/
Enforcement Committee considered this issue during its deliberations
and examined different materials that could be used to cover the net
while still making it visible from the air. NMFS intends to consider
these materials and other ideas the Council or industry may have to
improve the enforcement of these requirements from the air in its
separate rulemaking.
Comment 31: The USCG and CLF opposed eliminating gear stowage
requirements for groundfish trawlers and urged NMFS to disapprove this
measure. The USCG commented that the proposed measure would make
current and future closed areas virtually unenforceable. While VMS is
an effective tool to enforce closed areas when transits are not
allowed, it is not sufficient to document vessel activities when
transiting is allowed. The USCG contends that eliminating these
measures would reduce the time required to set and recover fishing
gear, and thereby undermine enforcement of transiting restrictions at
sea. The USCG also maintains that inconsistent gear stowage
requirements would unnecessarily complicate enforcement, undermining
the conservation objectives of closed areas. Furthermore, the USCG is
concerned that this measure does not extend safety benefits to vessels
in other FMPs, raising serious equity issues. CLF noted this measure
was adopted against the advice of the Council's VMS/Enforcement
Committee, and is concerned that removing these requirements would
further exacerbate what it believes to be already an extensive problem
of illegal fishing activity and misreporting of catch.
Response: NMFS agrees with the commenters that the proposed measure
does not adequately balance the needs of safety with those of
conservation and management, which is one reason why NMFS has
disapproved this measure in Framework 48. NMFS agrees that these
requirements are still needed to enforce the prohibition on fishing in
closed areas and do not wish eliminating these requirements in the name
of safety to open up a loophole for illegal fishing that would
undermine the conservation benefits of closed areas for protecting
spawning fish and habitat. Given that NMFS is initiating a separate
rulemaking to address safety issues while ensuring and even improving
the effectiveness of the requirements for enforcement, NMFS has
disapproved this measure in Framework 48.
Correction to Eastern U.S./Canada Quota Monitoring
Comment 32: The Council, CLF, Earthjustice, and CCCHFA commented
against NMFS proposed correction to the regulations. The Council and
other commenters questioned NMFS' authority to make this change without
explicit Council action, and asked NMFS to disapprove this change,
[[Page 26150]]
particularly in light of continued concerns of misreporting of catches
of Eastern GB stocks. The Council also noted that NMFS proposed change
would not be consistent with the regulations that the Council deemed as
consistent with Amendment 16. The commenters urged NMFS to return to
the former method of monitoring, counting all catch of cod, haddock,
and yellowtail against Eastern GB TACs, to eliminate possible
incentives to misreport these stocks that may have arisen by NMFS
change to its monitoring practices since 2010. Earthjustice also
requested that NMFS apply its correction retroactively and adjust
catches for FY 2010-2012 and payback any overages that result to be
consistent with the regulations.
Response: NMFS acknowledges the clarification provided by the
Council and has disapproved its proposed correction in this final rule.
In light of this clarified interpretation of Amendment 16, NMFS will
revise its quota monitoring methods beginning with FY 2013 to be
consistent with the regulations and will count all catch of cod,
haddock, and yellowtail caught on trips inside and outside the Eastern
U.S./Canada Area against the U.S./Canada TACs, sub-ACLs, and ACEs. The
details of how NMFS intends to implement this monitoring method are
described in Item 4 of the preamble. NMFS does not intend to apply this
measure retroactively to FY 2010-2012, because that would unfairly
penalize sector vessels and the common pool by changing the rules long
past the time they could do anything to comply with them. NMFS
disagrees that adjusting catches in FY 2010-2012 would result in more
accurate catch estimates, but rather estimates that are consistent with
the letter of the regulations. Estimates under the precautionary method
may be more accurate, if one believes estimates of Eastern GB catches
are biased low because vessels report some catch as from GOM or Western
GB. Neither the Council nor NMFS, however, believe that all catches of
cod, haddock, or yellowtail on all multi-area trips into the Eastern
U.S./Canada Area are actually caught in Eastern GB. The purpose of this
measure is not to apportion catch more accurately, but to provide a
disincentive to fish in both the Eastern Area and Western GB/GOM and
thereby be able to misreport catch. One would expect that if this
measure had been in place during FY 2010-2012, fewer trips would have
been fished in both the Eastern Area and other areas. Thus, applying
this measure retroactively would not necessarily result in catch
estimates that are more accurate, but rather estimates that are perhaps
biased high instead of low. Retroactively adjusting catch estimates
would also have implications for other stocks, biasing low catches of
Western GB stocks and GOM cod and haddock, which would potentially
underestimate mortality on those stocks. NMFS maintains that catch
estimates in FY 2010-2012 were consistent with NMFS interpretation of
Amendment 16 at the time, as NMFS described in the preamble to the
Amendment 16 final rule, and the guidance NMFS provided to common pool
and sector vessels for complying with the regulations. NMFS will revise
its monitoring protocol for FY 2013 going forward, which would allow
sector and common pool vessels to plan their fishing seasons based on
the new rate of utilization of their Eastern allocations.
Comment 33: MEDMR, NSC, AFM, and one individual commented in
support of NMFS proposed change to the regulations. The commenters
believed that NMFS existing monitoring method was consistent with the
Council's intent in Amendment 16 to increase operational flexibility
for vessels to fish in multiple areas and to apportion catch according
the area reported fished. Some commenters argued that there is no
evidence of widespread misreporting, and emphasized that even if there
was it would have management and not biological implications. Some
commenters expressed concerns that returning to the Framework 42 method
of catch attribution would not fix misreporting issues, but would only
reduce flexibility for vessels, thereby making trips to Eastern GB too
costly and reducing vessels' ability to target GB haddock. One
commenter was concerned that the Framework 42 method would actually
result in less accurate catch estimates by incorrectly apportioning
catch.
Response: NMFS understands commenters concerns, but in light of the
clarification received from the Council, NMFS is disapproving its
proposed correction in this final rule and will instead revise its
monitoring protocol to be consistent with the regulations. NMFS does
not believe it has authority in the context of this action to
reconsider and override the Council's clarified intent in Amendment 16
regarding this measure. A detailed description of how NMFS intends to
implement the requirements is available in Item 5 of the preamble. NMFS
agrees that the intent of Amendment 16 was to attribute catch to stock
based on all available information (see 4.2.3.5.3 of Amendment 16).
This would seem to conflict with the language of Framework 42. As
discussed in the preamble, NMFS intends to implement both of these
requirements by counting all catch of cod, haddock, and yellowtail on
trips that declare into the Eastern U.S./Canada area inseason for the
purpose of determining when a TAC has been reached and a closure is
necessary. At the end of the fishing year, for the purposes of
determining if a TAC has been exceeded and an AM is triggered, NMFS
will subtract any catches on trips that declared into the Eastern U.S./
Canada but showed no fishing activity in those areas on VMS. NMFS
believes this would satisfy the intent of Framework 42 and Amendment
16, and meet our obligations to ensure the integrity of US/Canada TACs.
Although there may be no conclusive evidence of misreporting of Eastern
GB catches, the Council chose through Framework 42 to address a
management problem with a policy decision to count catch in
precautionary inseason to maintain the integrity of TACs agreed to with
Canada. As noted in the response to Comment 32, this measure is not
intended to necessarily attribute catch more accurately but to address
a specific management problem, which is to ensure the U.S./Canada TACs
are not exceeded. Because NMFS did not provide details of this
monitoring method in the proposed rule for Framework 48, NMFS will
collect additional public comment on it at this time.
Changes From the Proposed Rule
NMFS has made three changes from the proposed rule. Based upon
public comment, the coordinates for the Atlantic Halibut Fixed Gear AM
Area 1 was revised to correct errors contained in the proposed rule. In
addition, NMFS withdrew its proposed correction to the regulations
pertaining to monitoring the Eastern U.S./Canada TACs, and will instead
be returning to the Framework 42 method of monitoring (see Item 5 of
the preamble). Finally, NMFS implements revised status determination
criteria for white hake through this interim final rule (see Item 7 of
the preamble).
Classification
The Administrator, Northeast Region, NMFS, determined that the
approved measures of Framework 48 are necessary for the conservation
and management of the NE multispecies fishery and that it is consistent
with the Magnuson-Stevens Fishery Conservation and Management Act and
other applicable laws.
[[Page 26151]]
This final rule has been determined to be not significant for the
purposes of Executive Order (E.O.) 12866.
This final rule does not contain policies with Federalism or
``takings'' implications as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
The Assistant Administrator for Fisheries finds good cause to waive
the notice and comment provisions in 5 U.S.C. 553(b)(B) for the status
determination criteria for white hake because it is impracticable and
contrary to the public interest. As discussed more fully in Item 7 of
the preamble, the purpose of implementing the revised status
determination criteria for white hake make solicitation of public
comment contrary to the public interest. The results of the February
2013 benchmark assessment for white hake are a change from the previous
assessment and indicate that the stock is no longer overfished or
undergoing overfishing. These criteria represent the best scientific
information available and support an increase to the FY 2013 ABC and
ACL for this stock. Implementing revised status determination criteria
through this final rule is necessary in order to incorporate the best
scientific information available into the FMP and to allow NMFS
potentially to take separate action to implement an appropriate ABC and
ACL for white hake in FY 2013. This could result in the benefit of
revenues associated with a higher white hake catch limit in FY 2013,
including increased landings of white hake and other groundfish species
caught with it. Because a sector vessel must stop fishing in a stock
area once its sector has reached its allocation for that particular
stock, additional allocation of white hake extends the fishing season
for sector vessels in the white hake stock area, including for other
species. This is particularly true for unit stocks like white hake, for
which the stock area encompasses the entire region. Additional white
hake quota could also extend the fishing season for common pool
vessels, which have a sub-ACL for this stock.
This action could not allow for prior public comment because the
scientific review process and determination could not have been
completed any earlier due to the inherent time constraints associated
with such process. The benchmark assessment for white hake was
completed in February 2013, but a summary report documenting the
assessment results was not released until April 2, 2013, after
publication of the Framework 48 proposed rule. However, because the
Council included and recommended an alternative in Framework 48 to
implement the revised status determination criteria in FY 2013, should
it become available in time for rulemaking, NMFS is approving the
revised status determination criteria through this final rule. The time
necessary to provide for prior notice and opportunity for public
comment would delay the incorporation of the best scientific
information available into the FMP for management. It would also extend
the time necessary to develop an action to implement a revised quota
for this stock for FY 2013, should NMFS decide to do so. In the
interest of receiving public input on this action, NMFS is publishing
the revised status determination criteria as an interim final measure
and is requesting public comments on it in this rule.
The Assistant Administrator for Fisheries finds that the need to
implement these measures in a timely manner to incorporate the best
scientific information available to establish appropriate quotas to
prevent overfishing in FY 2013, constitutes good cause under authority
contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effective
date. This action incorporates the best scientific information
available from recent stocks assessments into the FMP to allow
Framework 50, a parallel action, to specify appropriate catch limits to
prevent overfishing and achieve optimum yield. There is a need to
implement this action in timely manner, because the 2013 fishing year
begins on May 1, 2013. Without this action, appropriate quotas based on
the best available science would not be set, and virtually the entire
groundfish fishery would not receive allocations of groundfish stocks
to begin fishing, which would have significant negative economic
impacts on fishery participants and the communities that depend on
them. In addition, there were unavoidable time constraints outside the
agency's control, because the Council took final action and submitted
Framework 48 much later than originally scheduled. As a result, review
of the framework, and the entire rulemaking process was delayed.
A Final Regulatory Flexibility Analysis (FRFA) was prepared
pursuant to 5 U.S.C. 604(a), and incorporates the IRFA, a summary of
the significant issues raised by the public comments in response to the
IRFA, NMFS's responses to those comments, and a summary of the analyses
completed to support the action. A copy of the EA/RIR/IRFA is available
from the both the Council and NMFS (see ADDRESSES).
The preamble to the proposed rule included a detailed summary of
the analyses contained in the IRFA, and that discussion is not repeated
here.
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this action is being taken, and
the objectives of and legal basis for this final rule, is contained in
the preambles to the proposed rule and this final rule and is not
repeated here.
Summary of Significant Issues Raised in Public Comments
NMFS's response to all comments received on the proposed rule,
including those that raised significant issues or commented on the
economic analyses summarized in the IRFA can be found in the ``Comments
and Responses'' section of this rule. As outlined in that section,
significant issues were raised by the public with respect to:
The procedural-type change allowing sectors to request
access to year-round closed areas;
Reactive AMs for non-allocated stocks;
Modifications to sector at-sea monitoring requirements;
Reduction in minimum fish sizes, and;
Sub-ACLs for GB yellowtail flounder and SNE/MA windowpane
flounder for the scallop fishery.
Detailed responses are provided to the specific significant issues
raised by the public comment and are not repeated here. The proposed
change to GB discard strata was disapproved as a result of the public
comments received. No other changes to the proposed rule measures were
necessary as a result of public comments.
Description and Estimate of Number of Small Entities To Which the Rule
Will Apply
The information analyzed in the RFA analysis indicated for 2011,
the most recent complete year of data available, there were 1,370
distinct ownership entities identified. Of these, 1,312 are categorized
as small and 58 are large entities as per SBA guidelines. As stated in
the IRFA, a definition of dependence was also used to examine potential
impact of this rule on small entities. Dependence was defined as
entities deriving greater than 50 percent of gross sales from sales of
either regulated groundfish or from scallops. This definition was used
to identify those ownership groups most likely to be impacted by the
proposed regulations. Using this threshold, 135 entities are
groundfish-dependent, with 131 small
[[Page 26152]]
and 4 large. Forty-seven entities are scallop-dependent, with 39 small
and 8 large.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This final rule contains a revision to collection-of-information
requirement subject to the Paperwork Reduction Act (PRA) and which has
been approved by the Office of Management and Budget (OMB) under
control number 0648-0605 (Amendment 16 reporting requirements).
Framework 48 adjusts the sector at-sea monitoring pre-trip notification
and NEFOP notification implemented through Amendment 16, by adding a
question to allow fishermen to indicate what fishery they intend to
participate in. This change is necessary to identify monkfish trips in
Southern New England that may qualify for the exemption from sector at-
sea monitoring coverage, in order to deploy at-sea monitors
appropriately to achieve the coverage levels required by the FMP.
Currently, all groundfish vessels make these notifications to the NEFOP
through the PTNS via an online form, a telephone call, or email to
NEFOP. When sector at-sea monitoring programs become established, the
pre-trip notification may be made to NEFOP or other at-sea monitoring
provider, via a telephone call or email or through a secure database.
Public reporting burden for the Amendment 16 reporting requirements is
estimated to average two minutes per individual response for sector at-
sea monitoring pre-trip notification and NEFOP notification, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Framework 48 only adds a question to
these notifications and would not affect the number of entities
required to comply with these notifications (approximately 900 permits
enrolled in sectors and 1482 limited access NE multispecies permits).
The revision to these requirements is not expected to change this
burden estimate.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
Description of the Steps Taken To Minimize Economic Impact on Small
Entities
Introduction. The Regulatory Flexibility Act (RFA) analysis is
required to evaluate the impact of Federal proposed and final rules on
small business entities. Federal agencies are required in this analysis
to identify reasonable alternatives that may mitigate impacts on small
business entities. The RFA does not compel specific regulatory
outcomes. Moreover, the RFA does not require agencies to consider or
adopt alternatives that are inconsistent with law or outside the scope
and purpose of the regulations.
NMFS's ability to minimize economic impacts is constrained, in
part, by recommendations of the Council. NMFS has only the ability to
approve, partially approve, or disapprove Council-recommended measures.
The Agency cannot revise or substitute Council-recommended measures in
the framework review and implementation process. This limits the range
of alternatives that can be considered in Framework 48 to the suite of
preferred and non-preferred alternatives forwarded by the Council. NMFS
does have the ability through independent rulemaking under specifically
defined Magnuson-Stevens Act criteria to implement alternative measures
that respond to emergencies or end overfishing. In situations where
Council recommendations are determined consistent with the Magnuson-
Stevens Act and other applicable law, NMFS is obligated to implement
the measures in question.
Framework 48 measures. NMFS is disapproving the provision to
eliminate trawl gear stowage requirements as recommended by the Council
along with measures pertaining to at-sea monitoring industry cost
sharing, at-sea monitoring cost responsibility of sectors, and discard
rate strata for GB yellowtail flounder. The rationale for disapproving
these Council-recommended Framework 48 measures is outlined in detail
in the preamble and not repeated here. For all other Framework 48
measures described in the preamble, NMFS has determined the Council
recommendations are consistent with applicable requirements of the
Magnuson-Stevens Act and other law. As a result, NMFS is implementing
the measures, as proposed by the Council, and the available mitigation
is limited as a result.
The approved measures change status determination criteria, modify
management measures for at-sea monitoring, allow exemption requests
from sectors to year-round closures, change minimum size restrictions
for allocated fish, and modify some AMs. The IRFA concluded the
Framework 48 alternatives have the potential to impact a large number
of small entities, and while some of the options may significantly
alter profitability, none of them would have a disproportionate impact
on small entities.
The new status determination criteria impacts the catch limits set
for each species. In situations where the revised status determination
criteria result in much lower catch limits than under the no action
alternative considered in the IRFA, then the measures implemented by
this rule would reduce fishing revenues. NMFS is required by the
Magnuson-Stevens Act National Standard 2 to use the best available
scientific information in setting catch limits. The new stock status
determination criteria implemented by NMFS have been certified as the
best available scientific information by the NEFSC. The no action
alternative is inconsistent with the Magnuson-Stevens Act because it
would continue to use outdated stock assessment data that is not the
best available scientific information and; therefore, it cannot be
implemented.
Establishing sub-ACLs for SNE/MA windowpane flounder and for GB
yellowtail flounder impacts both the groundfish and scallop fisheries
by shifting accountability for overages or changing the method of sub-
ACL calculation. SNE/MA windowpane sub-ACLs for the scallop and other
sub-components fisheries can reduce the likelihood of an overage and
overfishing. Avoiding overages and overfishing may, in turn, lower
operating costs and result in higher future revenues. If sub-ACLs are
set below average yearly landings for a given fishery, and if AMs are
severely restrictive, the impacted vessels could experience a
substantial reduction in their profitability.
The modifications to the scallop fishery GB yellowtail flounder
sub-ACL would use a fixed percentage to determine the scallop fishery
allocation of the GB yellowtail flounder--40 percent in FY 2013 and 16
percent in each subsequent year. The economic impacts to fishing
businesses will depend on the overall GB yellowtail flounder ABC and
the probability of an overage, both of which are currently
unquantifiable. The 16-percent fixed rate may be prohibitive to
maximizing the value from scallop landings. In the worst-case scenario,
if an overage occurred that closed a valuable access area to the
scallop fishery, the scallop
[[Page 26153]]
industry could suffer a $16.9 million dollar loss in economic benefits.
A non-preferred alternative was considered by the Council to use a set
90-percent of estimated scallop catch as the determinant of the scallop
sub-ACL. Since the allocation method of the 90 percent alternative does
not adjust for changes in the ABC, it could lead to a very low
groundfish fishery sub-ACL for GB yellowtail flounder but mitigate
potential impact to the scallop fishery. The measure to establish a
small-mesh fishery sub-ACL for GB yellowtail flounder would use a fixed
percentage, based on previous catch history, to set the allocation.
This measure is expected to have similar impacts and unknowns as the
other sub-ACLs, but with respect to the small-mesh groundfish vessels.
The sub-ACL modifications implemented by this rule provide overall
benefit to the nation in terms of the broader concept of optimum yield
and further ensure the likelihood of overfishing is prevented. The non-
preferred GB yellowtail flounder scallop sub-ACL determinant or not
establishing additional sub-ACLs would not be consistent with National
Standards 1, 4, 5, or 8 and the goals and objectives of the FMP. As
such, these non-preferred approaches that may mitigate impacts to the
scallop, small-mesh, and Mid-Atlantic fisheries were not favored by the
Council and not approved by NMFS.
Modifying the groundfish sector monitoring requirements would
impact all sector vessels. The removal of dockside monitoring
implemented in this rule for FY 2013 has a positive economic impact by
lowering operating costs and increasing probability. As such, it
provides the maximum economic impact mitigation in comparison to the
alternative that would require industry funded dockside monitoring to
be in place for FY 2013 and beyond. The disapproved cost-sharing
provision was intended to reduce the overall cost of at-sea monitoring
paid for by the industry and would have provided similar positive
impacts by lowering costs and increasing profits; however, the measure
as recommended by the Council was not consistent with anti-deficiency
and other Federal laws and policies and could not be implemented by
NMFS. Similarly, eliminating the industry's responsibility to pay for
at-sea monitoring would have positive economic impacts. This
alternative would not ensure that coverage levels are sufficient to
monitor sector allocations and satisfy the Amendment 16 monitoring
requirements and, as a result, could not be approved. NMFS has
committed to fully funding the required at-sea monitoring cost for FY
2013. This will provide a 1-year short-term relief to sector vessels
until FY 2014. Had this funding not been made available, industry would
have been required to fully fund at-sea monitoring in FY 2013 at a
substantial economic impact. As modified by Amendment 16, the FMP
requires industry to fully fund at-sea monitoring; however, NMFS has
provided this funding each fishing year since 2010.
Modifying the minimum size limits for commercially allocated
groundfish species would be expected to positively impact sector
vessels. The lower minimum size restrictions will allow a portion of
previously wasted regulated discards to become landings. This is
expected to provide a positive economic impact on net trip revenues, as
more fish will be landed for the same amount of expended quota as under
the no action alternative. Under the full-retention alternative, there
could have been unforeseen consequences from targeting smaller fish
that could have long-term negative impacts on future landings and
revenue. This could also occur under the changed minimum fish sizes.
Maintaining minimum mesh sizes may help to mitigate some of this
effect.
Based on public comment received, the modification of sector
discard strata for GB yellowtail flounder in Federal statistical area
522 was not approved in this rule. This had the potential for positive
impacts on revenue for large trawl vessels that predominantly fish this
area.
The measure to modify AM timing for stocks not allocated to sectors
is expected to help prevent overfishing. Controlling overfishing
ensures long-term positive impacts. Under this provision, AMs would not
be implemented mid-season, which will be beneficial to business
planning. There is, however, the potential for short-term decreases in
revenue based on implementation of AMs as catches may be reduced in the
year AMs are enacted. The ability to implement AMs as soon as possible
to correct the operational issue that caused the ACL overage,
consistent with the National Standard 1 Guideline recommendations, is
constrained in this case by the timing of data availability. The
approach implemented by this rule provides a balance of ensuring AMs
are enacted on the best available information in as timely a manner as
possible. In that regard, little else could be done with respect to AM
timing that remains consistent with National Standard 1.
Framework 48 would also create area-based AMs for Atlantic halibut,
Atlantic wolffish, and SNE/MA winter flounder. In the event these AMs
are triggered, trawl vessels would be forced to use selective gears
within designated closure areas and fixed-gear vessels would be forced
to cease fishing entirely inside designated closure areas. If
triggered, these areas could have economic impacts in the $4 million to
$5 million dollars for trawl vessels, and around $1 million for fixed-
gear vessels, based on FY 2010 information. These AMs were
nondiscretionary as they were required by a remand from Federal
appellate court.
The measures to revise the recreational AM and to allow sectors to
request year-round closed area exemptions has no immediate direct
economic impact, because these measures only confer authority on the
Regional Administrator to take action at a later date. Subsequent
actions to implement specific adjustments to recreational measures or
to consider sector exemption requests will fully analyze potential
economic impacts to small entities, consistent with RFA requirements.
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 small entity compliance guide will be sent
to all holders of Federal permits issued for the NE multispecies
fishery. In addition, copies of this final rule and guide (i.e.,
information bulletin) are available from NMFS (see ADDRESSES) and at
the following Web site: http://www.nero.noaa.gov/.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: April 29, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the 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:
[[Page 26154]]
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.
0
1. In Sec. 648.4, revise paragraph (a)(1)(ii) to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(1) * * *
(ii) Open access permits. A vessel of the United States that has
not been issued and is not eligible to be issued a limited access
multispecies permit is eligible for and may be issued an ``open access
multispecies'', ``handgear'', or ``charter/party'' permit, and may fish
for, possess on board, and land multispecies finfish subject to the
restrictions in Sec. 648.88. A vessel that has been issued a valid
limited access scallop permit, but that has not been issued a limited
access multispecies permit, is eligible for and may be issued an open
access scallop multispecies possession limit permit and may fish for,
possess on board, and land multispecies finfish subject to the
restrictions in Sec. 648.88. The owner of a vessel issued an open
access permit may request a different open access permit category by
submitting an application to the Regional Administrator at any time.
* * * * *
0
2. In Sec. 648.7, remove and reserve paragraph (a)(4), revise
paragraph (e)(3), and remove paragraph (h) and redesignate paragraph
(i) as paragraph (h).
The revision reads as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
* * * * *
(e) * * *
(3) At-sea monitor reports. Any record, as defined in Sec. 648.2,
related to fish observed by an at-sea monitor, including any reports
provided to NMFS, sector managers, or another third-party service
provider specified in paragraph (h) of this section, must be retained
and made available for immediate review for a total of 3 years after
the date the fish were first observed. At-sea monitor providers must
retain the required records and reports at their principal place of
business.
* * * * *
0
3. In Sec. 648.10, revise paragraph (k)(1)(iii) and add paragraph
(k)(1)(iv) to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(k) * * *
(1) * * *
(iii) Trip-start hail report. If instructed by the Regional
Administrator or required by a sector operations plan approved pursuant
to Sec. 648.87(b)(2) and (c), the operator of a vessel must submit a
trip-start hail report prior to departing port at the beginning of each
trip notifying the sector manager and/or NMFS of the vessel permit
number; trip ID number in the form of the VTR serial number of the
first VTR page for that trip, or another trip identifier specified by
NMFS; an estimate of the date and time of arrival to port; and any
other information as instructed by the Regional Administrator. Trip-
start hail reports by vessels operating less than 6 hr or within 6 hr
of port must also include estimated date and time of offload. The trip-
start hail report may be submitted via VMS or some other method, as
instructed by the Regional Administrator or required by a sector
operations plan approved pursuant to Sec. 648.87(b)(2) and (c). If the
vessel operator does not receive confirmation of the receipt of the
trip-start hail report from the sector manager or NMFS, the operator
must contact the intended receiver to confirm the trip-start hail
report via an independent back-up system, as instructed by the Regional
Administrator. To the extent possible, NMFS shall reduce unnecessary
duplication of the trip-start hail report with any other applicable
reporting requirements..
(iv) Trip-end hail report. Upon its return to port and prior to
crossing the VMS demarcation line as defined in Sec. 648.10, the owner
or operator of any vessel issued a limited access NE multispecies
permit that is subject to the VMS requirements specified in paragraph
(b)(4) of this section must submit a trip-end hail report to NMFS via
VMS, as instructed by the Regional Administrator. The trip-end hail
report must include at least the following information, as instructed
by the Regional Administrator: The vessel permit number; VTR serial
number, or other applicable trip ID specified by NMFS; intended
offloading location(s), including the dealer name/offload location,
port/harbor, and state for the first dealer/facility where the vessel
intends to offload catch and the port/harbor, and state for the second
dealer/facility where the vessel intends to offload catch; estimated
date/time of arrival; estimated date/time of offload; and the estimated
total amount of all species retained, including species managed by
other FMPs (in pounds, landed weight), on board at the time the vessel
first offloads its catch from a particular trip. The trip-end hail
report must be submitted at least 6 hr in advance of landing for all
trips of at least 6 hr in duration or occurring more than 6 hr from
port. For shorter trips, the trip-end hail reports must be submitted
upon the completion of the last tow or hauling of gear, as instructed
by the Regional Administrator. To the extent possible, NMFS shall
reduce unnecessary duplication of the trip-end hail reports with any
other applicable reporting requirements.
* * * * *
0
4. In Sec. 648.11, revise paragraphs (k)(1) and (2) and add paragraph
(l) to read as follows:
Sec. 648.11 At-sea sampler/observer coverage.
* * * * *
(k) * * *
(1) Pre-trip notification. Unless otherwise specified in this
paragraph (k), or notified by the Regional Administrator, the owner,
operator, or manager of a vessel (i.e., vessel manager or sector
manager) issued a limited access NE multispecies permit that is fishing
under a NE multispecies DAS or on a sector trip, as defined in this
part, must provide advanced notice to NMFS of the vessel name, permit
number, and sector to which the vessel belongs, if applicable; contact
name and telephone number for coordination of observer deployment;
date, time, and port of departure; and the vessel's trip plan,
including area to be fished, whether a monkfish DAS will be used, and
gear type to be used at least 48 hr prior to departing port on any trip
declared into the NE multispecies fishery pursuant to Sec. 648.10 or
Sec. 648.85, as instructed by the Regional Administrator, for the
purposes of selecting vessels for observer deployment. For trips
lasting 48 hr or less in duration from the time the vessel leaves port
to begin a fishing trip until the time the vessel returns to port upon
the completion of the fishing trip, the vessel owner, operator, or
manager may make a weekly notification rather than trip-by-trip calls.
For weekly notifications, a vessel must notify NMFS by 0001 hr of the
Friday preceding the week (Sunday through Saturday) that it intends to
complete at least one NE multispecies DAS or sector trip during the
following week and provide the date, time, port of departure, area to
be fished, whether a monkfish DAS will be used, and gear type to be
used for each trip during that week. Trip notification calls must be
made no more than 10 days in advance
[[Page 26155]]
of each fishing trip. The vessel owner, operator, or manager must
notify NMFS of any trip plan changes at least 24 hr prior to vessel
departure from port. A vessel may not begin the trip without being
issued an observer notification or a waiver by NMFS.
(2) Vessel selection for observer coverage. NMFS shall notify the
vessel owner, operator, or manager whether the vessel must carry an
observer, or if a waiver has been granted, for the specified trip
within 24 hr of the vessel owner's, operator's or manager's
notification of the prospective trip, as specified in paragraph (k)(1)
of this section. All trip notifications shall be issued a unique
confirmation number. A vessel may not fish on a NE multispecies DAS or
sector trip with an observer waiver confirmation number that does not
match the trip plan that was called in to NMFS. Confirmation numbers
for trip notification calls are valid for 48 hr from the intended sail
date. If a trip is interrupted and returns to port due to bad weather
or other circumstance beyond the operator's control, and goes back out
within 48 hr, the same confirmation number and observer status remains.
If the layover time is greater than 48 hr, a new trip notification must
be made by the operator, owner, or manager of the vessel.
(l) NE multispecies monitoring program goals and objectives.
Monitoring programs established for the NE multispecies are to be
designed and evaluated consistent with the following goals and
objectives:
(1) Improve documentation of catch:
(i) Determine total catch and effort, for each sector and common
pool, of target or regulated species; and
(ii) Achieve coverage level sufficient to minimize effects of
potential monitoring bias to the extent possible while maintaining as
much flexibility as possible to enhance fleet viability.
(2) Reduce the cost of monitoring:
(i) Streamline data management and eliminate redundancy;
(ii) Explore options for cost-sharing and deferment of cost to
industry; and
(iii) Recognize opportunity costs of insufficient monitoring.
(3) Incentivize reducing discards:
(i) Determine discard rate by smallest possible strata while
maintaining cost-effectiveness; and
(ii) Collect information by gear type to accurately calculate
discard rates.
(4) Provide additional data streams for stock assessments:
(i) Reduce management and/or biological uncertainty; and
(ii) Perform biological sampling if it may be used to enhance
accuracy of mortality or recruitment calculations.
(5) Enhance safety of monitoring program.
(6) Perform periodic review of monitoring program for
effectiveness.
0
5. In Sec. 648.14:
0
a. Revise paragraph (e)(1);
0
b. Remove paragraph (k)(14)(x);
0
c. Redesignate paragraphs (k)(14)(xi) and (xii) as paragraphs
(k)(14)(x) and (xi), respectively, and revise them;
0
d. Remove and reserve paragraphs (k)(18)(i)(B) through (D); and
0
e. Revise paragraphs (k)(19) introductory text, (k)(19)(i), and
(k)(20).
The revisions read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(e) * * *
(1) Assault, resist, oppose, impede, harass, intimidate, or
interfere with or bar by command, impediment, threat, or coercion any
NMFS-approved observer or sea sampler conducting his or her duties; any
authorized officer conducting any search, inspection, investigation, or
seizure in connection with enforcement of this part; any official
designee of the Regional Administrator conducting his or her duties,
including those duties authorized in Sec. 648.7(g).
* * * * *
(k) * * *
(14) * * *
(x) Leave port to begin a trip before an at-sea monitor has arrived
and boarded the vessel or before electronic monitoring equipment has
been properly installed if assigned to carry either an at-sea monitor
or electronic monitoring equipment for that trip, as prohibited by
Sec. 648.87(b)(5)(iii)(A).
(xi) Leave port to begin a trip if a vessel has failed a review of
safety issues by an at-sea monitor and has not successfully resolved
any identified safety deficiencies, as prohibited by Sec.
648.87(b)(5)(iv)(A).
* * * * *
(19) At-sea/electronic monitoring service providers. It is unlawful
for any at-sea/electronic monitoring service provider, including
individual at-sea monitors, to do any of the following:
(i) Fail to comply with the operational requirements, including the
recordkeeping and reporting requirements, specified in Sec.
648.87(b)(5).
* * * * *
(20) AMs for both stocks of windowpane flounder, ocean pout,
Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder. It is
unlawful for any person, including any owner or operator of a vessel
issued a valid Federal NE multispecies permit or letter under Sec.
648.4(a)(1)(i), unless otherwise specified in Sec. 648.17, to fail to
comply with the restrictions on fishing and gear specified in Sec.
648.90(a)(5)(i)(D).
* * * * *
0
6. In Sec. 648.80, revise paragraph (a)(3)(vii) to read as follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
* * * * *
(a) * * *
(3) * * *
(vii) Rockhopper and roller gear restrictions. For all trawl
vessels fishing on a NE multispecies DAS or sector trip in the GOM/GB
Inshore Restricted Roller Gear Area, the diameter of any part of the
trawl footrope, including discs, rollers, or rockhoppers, must not
exceed 12 inches (30.5 cm). The GOM/GB Inshore Restricted Roller Gear
Area is defined by straight lines connecting the following points in
the order stated:
Inshore Restricted Roller Gear Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1....................................... 42[deg]00' (\1\)
2....................................... 42[deg]00' (\2\)
3....................................... 42[deg]00' (\3\)
4....................................... 42[deg]00' 69[deg]50'
5....................................... 43[deg]00' 69[deg]50'
6....................................... 43[deg]00' 70[deg]00'
7....................................... 43[deg]30' 70[deg]00'
8....................................... 43[deg]30' (\4\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline on Cape Cod Bay.
\3\ Cape Cod shoreline on the Atlantic Ocean.
\4\ Maine shoreline.
* * * * *
0
7. In Sec. 648.82:
0
a. Revise paragraphs (k)(2)(i), (n)(1) introductory text, (n)(2)(ii)
introductory text, (n)(2)(ii)(A) and (B), (n)(2)(ii)(H) through (J),
and (n)(2)(ii)(M);
0
b. Remove and reserve paragraph (n)(2)(iv); and
0
c. Revise paragraph (n)(2)(vi).
The revisions read as follows:
Sec. 648.82 Effort-control program for NE multispecies limited access
vessels.
* * * * *
(k) * * *
(2) * * *
(i) A vessel issued a valid limited access NE multispecies permit
is eligible to lease Category A DAS to or from another such vessel,
subject to the conditions and requirements of this part, unless the
vessel was issued a valid Small Vessel or Handgear A
[[Page 26156]]
permit specified under paragraphs (b)(5) and (6) of this section,
respectively.
* * * * *
(n) * * *
(1) Differential DAS counting AM for fishing years 2010 and 2011.
Unless otherwise specified pursuant to Sec. 648.90(a)(5), based upon
catch and other information available to NMFS by February of each year,
the Regional Administrator shall project the catch of regulated species
or ocean pout by common pool vessels for the fishing year ending on
April 30 to determine whether such catch will exceed any of the sub-
ACLs specified for common pool vessels pursuant to Sec.
648.90(a)(4)(iii). This initial projection of common pool catch shall
be updated shortly after the end of each fishing year, once information
becomes available regarding the catch of regulated species and ocean
pout by vessels fishing for groundfish in state waters outside of the
FMP, vessels fishing in exempted fisheries, and vessels fishing in the
Atlantic sea scallop fishery; and the catch of Atlantic halibut, SNE/MA
winter flounder, ocean pout, windowpane flounder, and Atlantic wolffish
by sector vessels to determine if excessive catch by such vessels
resulted in the overall ACL for a particular stock to be exceeded. If
such catch resulted in the overall ACL for a particular stock being
exceeded, the common pool's catch of that stock shall be increased by
an amount equal to the amount of the overage of the overall ACL for
that stock multiplied by the common pool's share of the overall ACL for
that stock calculated pursuant to Sec. 648.90(a)(4)(iii)(H)(2). For
example, if the 2010 overall ACL for GOM cod was exceeded by 10,000 lb
(4,536 kg) due to excessive catch of that stock by vessels fishing in
state waters outside the FMP, and the common pool's share of the 2010
overall GOM cod ACL was 5 percent, then the common pool's 2010 catch of
GOM cod shall be increased by 500 lb (226.8 kg) (10,000 lb (4,536 kg) x
0.05 of the overall GOM cod ACL). If, based on the initial projection
completed in February, the Regional Administrator projects that any of
the sub-ACLs specified for common pool vessels will be exceeded or
underharvested, the Regional Administrator shall implement a
differential DAS counting factor to all Category A DAS used within the
stock area in which the sub-ACL was exceeded or underharvested, as
specified in paragraph (n)(1)(i) of this section, during the following
fishing year, in a manner consistent with the Administrative Procedure
Act. Any differential DAS counting implemented at the start of the
fishing year will be reevaluated and recalculated, if necessary, once
updated information is obtained. The differential DAS counting factor
shall be based upon the projected proportion of the sub-ACL of each NE
multispecies stock caught by common pool vessels, rounded to the
nearest even tenth, as specified in paragraph (n)(1)(ii) of this
section, unless otherwise specified pursuant to Sec. 648.90(a)(5). For
example, if the Regional Administrator projects that common pool
vessels will catch 1.18 times the sub-ACL for GOM cod during fishing
year 2010, the Regional Administrator shall implement a differential
DAS counting factor of 1.2 to all Category A DAS used by common pool
vessels only within the Inshore GOM Differential DAS Area during
fishing year 2011 (i.e., Category A DAS will be charged at a rate of
28.8 hr for every 24 hr fished--1.2 times 24-hr DAS counting). If it is
projected that catch in a particular fishing year will exceed or
underharvest the sub-ACLs for several regulated species stocks within a
particular stock area, including both exceeding and underharvesting
several sub-ACLs within a particular stock area, the Regional
Administrator shall implement the most restrictive differential DAS
counting factor derived from paragraph (n)(1)(ii) of this section for
the sub-ACLs exceeded or underharvested to any Category A DAS used by
common pool vessels within that particular stock area. For example, if
it is projected that common pool vessels will be responsible for 1.2
times the GOM cod sub-ACL and 1.1 times the CC/GOM yellowtail flounder
sub-ACL, the Regional Administrator shall implement a differential DAS
counting factor of 1.2 to any Category A DAS fished by common pool
vessels only within the Inshore GOM Differential DAS Area during the
following fishing year. For any differential DAS counting factor
implemented in fishing year 2011, the differential DAS counting factor
shall be applied against the DAS accrual provisions specified in
paragraph (e)(1)(i) of this section for the time spent fishing in the
applicable differential DAS counting area based upon the first VMS
position into the applicable differential DAS counting area and the
first VMS position outside of the applicable differential DAS counting
area, pursuant to Sec. 648.10. For example, if a vessel fished 12 hr
inside a differential DAS counting area where a differential DAS
counting factor of 1.2 would be applied, and 12 hr outside of the
differential DAS counting area, the vessel would be charged 48 hr of
DAS use because DAS would be charged in 24-hr increments ((12 hr inside
the area x 1.2 = 14.4 hr) + 12 hr outside the area, rounded up to the
next 24-hr increment to determine DAS charged). For any differential
DAS counting factor implemented in fishing year 2012, the differential
DAS counting factor shall be applied against the DAS accrual provisions
in paragraph (e)(1)(i) of this section, or if a differential DAS
counting factor was implemented for that stock area during fishing year
2011, against the DAS accrual rate applied in fishing year 2011. For
example, if a differential DAS counting factor of 1.2 was applied to
the Inshore GOM Differential DAS Area during fishing year 2011 due to a
20-percent overage of the GOM cod sub-ACL, yet the GOM cod sub-ACL was
exceeded again, but by 50 percent during fishing year 2011, an
additional differential DAS factor of 1.5 would be applied to the DAS
accrual rate applied during fishing year 2012 (i.e., the DAS accrual
rate in the Inshore GOM Differential DAS Counting Area during fishing
year 2012 would be 43.2 hr charged for every 24-hr fished--1.2 x 1.5 x
24-hr DAS charge). If the Regional Administrator determines that
similar DAS adjustments are necessary in all stock areas, the Regional
Administrator will adjust the ratio of Category A:Category B DAS
specified in paragraph (d)(1) of this section to reduce the number of
available Category A DAS available based upon the amount of the
overage, rather than apply a differential DAS counting factor to all
Category A DAS used in all stock areas.
* * * * *
(2) * * *
(ii) Stock area closures. Unless otherwise specified in this
paragraph (n)(2)(ii), if the Regional Administrator projects that 90
percent of the trimester TACs specified in paragraph (n)(2)(i) of this
section will be caught based upon available information, the Regional
Administrator shall close the area where 90 percent of the catch for
each such stock occurred to all common pool vessels on a NE
multispecies DAS using gear capable of catching such stocks for the
remainder of that trimester, as specified in paragraphs (n)(2)(ii)(A)
through (N) of this section, in a manner consistent with the
Administrative Procedure Act. For example, if the Regional
Administrator projects that 90 percent of the CC/GOM yellowtail
flounder Trimester 1 TAC will be caught, common pool vessels using
trawl and gillnet gear shall be prohibited from fishing in the CC/GOM
Yellowtail Flounder Closure Area
[[Page 26157]]
specified in paragraph (n)(2)(ii)(G) of this section until the
beginning of Trimester 2 on September 1 of that fishing year. Based
upon all available information, the Regional Administrator is
authorized to expand or narrow the areas closed under this paragraph
(n)(2)(ii) in a manner consistent with the Administrative Procedure
Act. If it is not possible to identify an area where only 90 percent of
the catch occurred, the Regional Administrator shall close the smallest
area possible where greater than 90 percent of the catch occurred.
Common pool vessels holding either a Handgear A or B permit and fishing
with handgear or tub trawls are exempt from stock area closures for
white hake. The Regional Administrator may exempt Handgear A and B
permitted vessels from stock area closures for other stocks pursuant to
this paragraph (n)(2)(ii) if it is determined that catches of the
respective species or stock by these vessels are less than 1 percent of
the common pool catch of that species or stock. The Regional
Administrator shall make such determination prior to the start of the
fishing year through a notice published in the Federal Register,
consistent with the Administrative Procedure Act, and any such
determination shall remain in effect until modified.
(A) GB Cod Trimester TAC Area. For the purposes of the trimester
TAC AM closure specified in paragraph (n)(2)(ii) of this section, the
GB Cod Trimester TAC Area shall apply to common pool vessels using
trawl gear, sink gillnet gear, and longline/hook gear within the area
bounded by straight lines connecting the following points in the order
stated:
GB Cod Trimester TAC Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg] 20' 70[deg] 00'
2........................... 42[deg] 20' (\1\)
3........................... 41[deg] 50' (\1\)
4........................... 41[deg] 50' 67[deg] 40'
5........................... 41[deg] 10' 67[deg] 40'
6........................... 41[deg] 10' 67[deg] 10'
7........................... 41[deg] 00' 67[deg] 10'
8........................... 41[deg] 00' 67[deg] 00'
9........................... 40[deg] 50' 67[deg] 00'
10.......................... 40[deg] 50' 66[deg] 50'
11.......................... 40[deg] 40' 66[deg] 50'
12.......................... 40[deg] 40' 66[deg] 40'
13.......................... 39[deg] 50' 66[deg] 40'
14.......................... 39[deg] 50' 68[deg] 50'
15.......................... 41[deg] 00' 68[deg] 50'
16.......................... 41[deg] 00' 69[deg] 30'
17.......................... 41[deg] 10' 69[deg] 30'
18.......................... 41[deg] 10' 69[deg] 50'
19.......................... 41[deg] 20' 69[deg] 50'
20.......................... 41[deg] 20' (\2\)
21.......................... (\3\) 70[deg] 00'
22.......................... (\4\) 70[deg] 00'
23.......................... (\5\) 70[deg] 00'
------------------------------------------------------------------------
\1\ U.S./Canada maritime boundary.
\2\ East-facing shoreline of Nantucket, MA.
\3\ North-facing shoreline of Nantucket, MA.
\4\ South-facing shoreline of Cape Cod, MA.
\5\ North-facing shoreline of Cape Cod, MA.
(B) GOM Cod Trimester TAC Area. For the purposes of the trimester
TAC AM closure specified in paragraph (n)(2)(ii) of this section, the
GOM Cod Trimester TAC Area shall apply to common pool vessels using
trawl gear, sink gillnet gear, and longline/hook gear within the area
bounded on the south, west, and north by the shoreline of the United
States and bounded on the east by straight lines connecting the
following points in the order stated:
GOM Cod Trimester TAC Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... (\1\) 69[deg] 20'
2........................... 43[deg] 40' 69[deg] 20'
3........................... 43[deg] 40' 69[deg] 00'
4........................... 43[deg] 10' 69[deg] 00'
5........................... 43[deg] 10' 69[deg] 10'
6........................... 43[deg] 00' 69[deg] 10'
7........................... 43[deg] 00' 69[deg] 20'
8........................... 42[deg] 50' 69[deg] 20'
9........................... 42[deg] 50' 69[deg] 40'
10.......................... 42[deg] 20' 69[deg] 40'
11.......................... 42[deg] 20' 70[deg] 00'
12.......................... (\2\) 70[deg] 00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ North-facing shoreline of Cape Cod, MA.
* * * * *
(H) American Plaice Trimester TAC Area. For the purposes of the
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this
section, the American Plaice Trimester TAC Area shall apply to common
pool vessels using trawl gear within the area bounded by straight lines
connecting the following points in the order stated:
American Plaice Trimester TAC Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... (\1\) 68[deg]00'
2........................... 44[deg]10' 67[deg]50'
3........................... 44[deg]00' 67[deg]50'
4........................... 44[deg]00' 67[deg]40'
5........................... (\2\) 67[deg]40'
6........................... 42[deg]53.1' 67[deg]44.4'
7........................... (\2\) 67[deg]40'
8........................... 41[deg]10' 67[deg]40'
9........................... 41[deg]10' 67[deg]10'
10.......................... 41[deg]00' 67[deg]10'
11.......................... 41[deg]00' 67[deg]00'
12.......................... 40[deg]50' 67[deg]00'
13.......................... 40[deg]50' 66[deg]50'
14.......................... 40[deg]40' 66[deg]50'
15.......................... 40[deg]40' 66[deg]40'
16.......................... 39[deg]50' 66[deg]40'
17.......................... 39[deg]50' 68[deg]50'
18.......................... 41[deg]00' 68[deg]50'
19.......................... 41[deg]00' 69[deg]30'
20.......................... 41[deg]10' 69[deg]30'
21.......................... 41[deg]10' 69[deg]50'
22.......................... 41[deg]20' 69[deg]50'
23.......................... 41[deg]20' (\3\)
24.......................... (\4\) 70[deg]00'
25.......................... (\5\) 70[deg]00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ U.S./Canada maritime boundary.
\3\ East-facing shoreline of Nantucket, MA.
\4\ North-facing shoreline of Nantucket, MA.
\5\ South-facing shoreline of Cape Cod, MA.
(I) Witch Flounder Trimester TAC Area. For the purposes of the
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this
section, the Witch Flounder Trimester TAC Area shall apply to common
pool vessels using trawl gear within the area bounded by straight lines
connecting the following points in the order stated:
Witch Flounder Trimester TAC Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... (\1\) 68[deg]00'
2........................... 44[deg]10' 67[deg]50'
3........................... 44[deg]00' 67[deg]50'
4........................... 44[deg]00' 67[deg]40'
5........................... (\2\) 67[deg]40'
6........................... 42[deg]53.1' 67[deg]44.4'
7........................... (\2\) 67[deg]40'
8........................... 41[deg]10' 67[deg]40'
9........................... 41[deg]10' 67[deg]10'
10.......................... 41[deg]00' 67[deg]10'
11.......................... 41[deg]00' 67[deg]00'
12.......................... 40[deg]50' 67[deg]00'
13.......................... 40[deg]50' 66[deg]50'
14.......................... 40[deg]40' 66[deg]50'
15.......................... 40[deg]40' 66[deg]40'
16.......................... 39[deg]50' 66[deg]40'
17.......................... 39[deg]50' 68[deg]50'
18.......................... 41[deg]00' 68[deg]50'
19.......................... 41[deg]00' 69[deg]30'
20.......................... 41[deg]10' 69[deg]30'
21.......................... 41[deg]10' 69[deg]50'
22.......................... 41[deg]20' 69[deg]50'
23.......................... 41[deg]20' (\3\)
24.......................... (\4\) 70[deg]00'
25.......................... (\5\) 70[deg]00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ U.S./Canada maritime boundary.
\3\ East-facing shoreline of Nantucket, MA.
\4\ North-facing shoreline of Nantucket, MA.
\5\ South-facing shoreline of Cape Cod, MA.
(J) GB Winter Flounder Trimester TAC Area. For the purposes of the
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this
section, the GB Winter Flounder Trimester TAC Area shall
[[Page 26158]]
apply to common pool vessels using trawl gear within the area bounded
by straight lines connecting the following points in the order stated:
GB Winter Flounder Trimester TAC Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]20' 68[deg]50'
2........................... 42[deg]20' (\1\)
3........................... 40[deg]30' (\1\)
4........................... 40[deg]30' 66[deg]40'
5........................... 39[deg]50' 66[deg]40'
6........................... 39[deg]50' 68[deg]50'
------------------------------------------------------------------------
\1\ U.S./Canada maritime boundary
* * * * *
(M) White Hake Trimester TAC Area. For the purposes of the
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this
section, the White Hake Trimester TAC Area shall apply to common pool
vessels using trawl gear, sink gillnet gear, and longline/hook gear,
except for Handgear A and B permitted vessels using handgear or tub
trawls, within the area bounded by straight lines connecting the
following points in the order stated:
White Hake Trimester TAC Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... (\1\) 69[deg]20'
2........................... 43[deg]40' 69[deg]20'
3........................... 43[deg]40' 69[deg]00'
4........................... 43[deg]20' 69[deg]00'
5........................... 43[deg]20' 67[deg]40'
6........................... (\2\) 67[deg]40'
7........................... 42[deg]53.1' 67[deg]44.4'
8........................... (\2\) 67[deg]40'
9........................... 41[deg]20' 67[deg]40'
10.......................... 41[deg]20' 68[deg]10'
11.......................... 41[deg]10' 68[deg]10'
12.......................... 41[deg]10' 68[deg]20'
13.......................... 41[deg]00' 68[deg]20'
14.......................... 41[deg]00' 69[deg]30'
15.......................... 41[deg]10' 69[deg]30'
16.......................... 41[deg]10' 69[deg]50'
17.......................... 41[deg]20' 69[deg]50'
18.......................... 41[deg]20' (\3\)
19.......................... (\4\) 70[deg]00'
20.......................... (\5\) 70[deg]00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ U.S./Canada maritime boundary.
\3\ East-facing shoreline of Nantucket, MA.
\4\ North-facing shoreline of Nantucket, MA.
\5\ South-facing shoreline of Cape Cod, MA.
* * * * *
(vi) Trip limit adjustment. When 60 percent of the northern or
southern windowpane flounder, ocean pout, or Atlantic halibut sub-ACLs
specified for common pool vessels pursuant to Sec.
648.90(a)(4)(iii)(H)(2) is projected to be caught, the Regional
Administrator may specify, consistent with the APA, a possession limit
for these stocks that is calculated to prevent the yearly sub-ACL from
being exceeded prior to the end of the fishing year.
* * * * *
0
8. In Sec. 648.83, revise paragraph (a)(1) to read as follows:
Sec. 648.83 Multispecies minimum fish sizes.
(a) * * *
(1) Minimum fish sizes for recreational vessels and charter/party
vessels that are not fishing under a NE multispecies DAS are specified
in Sec. 648.89. Except as provided in Sec. 648.17, all other vessels
are subject to the following minimum fish sizes, determined by total
length (TL):
Minimum Fish Sizes (TL) for Commercial Vessels
------------------------------------------------------------------------
Species Size (inches)
------------------------------------------------------------------------
Cod.................................... 19 (48.3 cm)
Haddock................................ 16 (40.6 cm)
Pollock................................ 19 (48.3 cm)
Witch flounder (gray sole)............. 13 (33 cm)
Yellowtail flounder.................... 12 (30.5 cm)
American plaice (dab).................. 12 (30.5 cm)
Atlantic halibut....................... 41 (104.1 cm)
Winter flounder (blackback)............ 12 (30.5 cm)
Redfish................................ 7 (17.8 cm)
------------------------------------------------------------------------
* * * * *
0
9. In Sec. 648.84, add paragraph (e) to read as follows:
Sec. 648.84 Gear-marking requirements and gear restrictions.
* * * * *
(e) Rope separator trawl. A rope separator trawl is defined as a
four-seam bottom trawl net (i.e., a net with a top and bottom panel and
two side panels) modified to include both a horizontal separator panel
and an escape opening in the bottom belly of the net below the
separator panel, as further specified in paragraphs (e)(1) through (3)
of this section.
(1) Mesh size. The minimum mesh size applied throughout the body
and extension of a rope separator trawl must be 6-inch (15.2-cm)
diamond mesh or 6.5-inch (16.5-cm) square mesh, or any combination
thereof. Mesh in the bottom belly of the net must be 13-inch (33-cm)
diamond mesh. Unless otherwise specified in this part, the codend mesh
size must be consistent with mesh size requirements specified in Sec.
648.80. The mesh size of a particular section of the rope separator
trawl is measured in accordance with Sec. 648.80(f)(2), unless
insufficient numbers of mesh exist, in which case the maximum total
number of meshes in the section will be measured (between 2 and 20
meshes).
(2) Separator panel. The separator panel must consist of parallel
lines made of fiber rope, the ends of which are attached to each side
of the net starting at the forward edge of the square of the net and
running aft toward the extension of the net. The leading rope must be
attached to the side panel at a point at least \1/3\ of the number of
meshes of the side panel above the lower gore, and the panel of ropes
shall slope downward toward the extension of the net. For example, if
the side panel of the net is 42 meshes tall, the leading rope must be
attached at least 14 meshes above the lower gore. The forward \2/3\ of
the separator ropes that comprise the separator panel must be no
farther than 26 inches (66 cm) apart, with the after \1/3\ of the
separator ropes that comprise the separator panel being no farther than
13 inches (33 cm) apart. The ends of the aftermost rope shall be
attached to the bottom belly at a point \1/6\ of the number of meshes
of the after end of the bottom belly below the lower gore. The
separator ropes should be of sufficient length not to impinge upon the
overall shape of the net without being too long to compromise the
selectivity of the net. The separator ropes may not be manipulated in
any way that would inhibit the selectivity of the net by causing the
separator ropes to dip toward the bottom belly of the net and obscure
the escape opening, as defined in paragraph (e)(3) of this section.
(3) Escape opening. The escape opening must be positioned in the
bottom belly of the net behind the sweep and terminate under the
separator panel, as described in paragraph (e)(2) of this section.
Longitudinal lines may be used to maintain the shape of the escape
opening, as necessary. The escape opening shall be at least 18 meshes
in both length and width.
0
10. In Sec. 648.85, revise paragraphs (a)(2)(ii) and (iii),
(a)(3)(iv)(E), (b)(7)(iv)(H), (b)(8)(v)(C), and (d) to read as follows:
Sec. 648.85 Special management programs.
(a) * * *
(2) * * *
(ii) Adjustments to TACs. Any overages of the overall Eastern GB
cod, Eastern GB haddock, and GB yellowtail flounder U.S. TACs caused by
an overage of the component of the U.S. TAC specified for either the
common pool, individual sectors, the scallop fishery, or any other
fishery, pursuant to this paragraph (a)(2) and Sec. 648.90(a)(4), that
occur in a given fishing year shall be subtracted from the respective
TAC component responsible for the overage in the following fishing year
and may be
[[Page 26159]]
subject to the overall groundfish AM provisions as specified in Sec.
648.90(a)(5)(ii) if the overall ACL for a particular stock in a given
fishing year, specified pursuant to Sec. 648.90(a)(4), is exceeded.
(iii) Distribution of TACs. For stocks managed by the U.S./Canada
Resource Sharing Understanding, as specified in paragraph (a)(1) of
this section, the TAC allocation determined pursuant to this paragraph
(a)(2) shall be distributed between sectors approved pursuant to Sec.
648.87(c), common pool vessels, scallop vessels, and other applicable
fisheries, as specified in Sec. 648.90(a)(4). Approved sectors will be
allocated ACE for Eastern GB cod and Eastern GB haddock proportional to
the sector's allocation of the overall ACL for these stocks, based upon
the fishing histories of sector vessels, as specified in Sec.
648.87(b)(1)(i). Any ACE for Eastern GB cod and Eastern GB haddock
allocated to an individual sector is considered a subset of the overall
GB cod and GB haddock ACE allocated to that sector and may only be
harvested from the Eastern U.S./Canada Area, while the remaining ACE
for GB cod and GB haddock available to that sector may only be
harvested outside of the Eastern U.S./Canada Area. For example, if a
sector is allocated 10 percent of the GB haddock ACL, it will also be
allocated 10 percent of the Eastern GB haddock TAC for that particular
fishing year.
(3) * * *
(iv) * * *
(E) Closure of Eastern U.S./Canada Area. Based upon available
information, when the Regional Administrator projects that any
individual TAC allocation for NE multispecies common pool or sectors
specified in paragraph (a)(2)(iii) of this section will be caught, NMFS
shall close, in a manner consistent with the Administrative Procedure
Act, the Eastern U.S./Canada Area to all vessels subject to that
particular TAC allocation, unless otherwise allowed under this
paragraph (a)(3)(iv)(E). For example, if the Eastern GB cod TAC
specified for common pool vessels is projected to be caught, NMFS shall
close the Eastern U.S./Canada Area to all common pool vessels operating
under a NE multispecies DAS. Should the Eastern U.S./Canada Area close
as described in this paragraph (a)(3)(iv)(E), common pool vessels
fishing under a DAS may continue to fish in a SAP within the Eastern
U.S./Canada Area, provided that the TAC for the target stock identified
for that particular SAP (i.e., haddock for the Eastern U.S./Canada
Haddock SAP or haddock or yellowtail flounder for the CA II Yellowtail
Flounder/Haddock SAP) has not been fully harvested. A vessel fishing on
a sector trip may only fish in a SAP if that vessel's sector has ACE
available for all stocks caught in that SAP. For example, should the GB
cod TAC allocation specified for common pool vessels in paragraph
(a)(2)(iii) of this section be attained, and the Eastern U.S./Canada
Area closure implemented for common pool vessels, common pool vessels
could continue to fish for yellowtail flounder within the SAP
identified as the Closed Area II Yellowtail Flounder/Haddock SAP,
described in paragraph (b)(3) of this section, in accordance with the
requirements of that program. Upon closure of the Eastern U.S./Canada
Area, vessels may transit through this area as described in paragraph
(a)(1)(ii) of this section, provided that its gear is stowed in
accordance with the provisions of Sec. 648.23(b), unless otherwise
restricted under this part.
* * * * *
(b) * * *
(7) * * *
(iv) * * *
(H) Landing limits. For all vessels legally declared into the CA I
Hook Gear Haddock SAP described in paragraph (b)(7)(i) of this section,
landing limits for NE multispecies are specified in paragraphs
(b)(7)(v)(B) and (b)(7)(vi)(C) of this section, respectively. Unless
otherwise restricted by Sec. 648.86, such vessels are prohibited from
discarding legal-sized regulated species and ocean pout, and must exit
the SAP and cease fishing if any trip limit is achieved or exceeded.
* * * * *
(8) * * *
(v) * * *
(C) Observer notifications. For the purpose of selecting vessels
for observer deployment, a vessel must provide notice to NMFS of the
vessel name; contact name for coordination of observer deployment;
telephone number for contact; areas to be fished; and date, time, and
port of departure at least 48 hours prior to the beginning of any trip
that it declares into the Eastern U.S./Canada Haddock SAP Program
specified in paragraph (b)(8)(i) of this section, as required under
paragraph (b)(8)(v)(D) of this section, and in accordance with
instructions provided by the Regional Administrator.
* * * * *
(d) Haddock incidental catch allowance for some Atlantic herring
vessels. The haddock incidental catch allowance for a vessel issued a
Federal Atlantic herring permit and fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3, as defined in Sec. 648.200(f)(1)
and (3), is 1 percent of each of the ABCs for GOM haddock and GB
haddock (U.S. catch only) specified according to Sec. 648.90(a)(4) for
a particular NE multispecies fishing year. Such haddock catch will be
determined as specified in Sec. 648.86(a)(3)(ii).
* * * * *
0
11. In Sec. 648.86, revise paragraphs (a)(3)(ii)(A)(1), (3), and (4),
to read as follows:
Sec. 648.86 NE Multispecies possession restrictions.
* * * * *
(a) * * *
(3) * * *
(ii) * * *
(A) * * *
(1) When the Regional Administrator has determined that the
incidental catch allowance for a given haddock stock, as specified in
Sec. 648.85(d), has been caught, no vessel issued an Atlantic herring
permit and fishing with midwater trawl gear in the applicable stock
area, i.e., the Herring GOM Haddock Accountability Measure (AM) Area or
Herring GB Haddock AM Area, as defined in paragraphs (a)(3)(ii)(A)(2)
and (3) of this section, may fish for, possess, or land herring in
excess of 2,000 lb (907.2 kg) per trip in or from that area, unless all
herring possessed and landed by the vessel were caught outside the
applicable AM Area and the vessel complies with the gear stowage
provisions specified in Sec. 648.23(b) while transiting the AM Area.
Upon this determination, the haddock possession limit is reduced to 0
lb (0 kg) for a vessel issued a Federal Atlantic herring permit and
fishing with midwater trawl gear or for a vessel issued an All Areas
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access
Herring Permit fishing on a declared herring trip, regardless of area
fished or gear used, in the applicable AM area, unless the vessel also
possesses a NE multispecies permit and is operating on a declared
(consistent with Sec. 648.10(g)) NE multispecies trip. In making this
determination, the Regional Administrator shall use haddock catches
observed by NMFS-approved observers by herring vessel trips using
midwater trawl gear in Management Areas 1A, 1B, and/or 3, as defined in
Sec. 648.200(f)(1) and (3), expanded to an estimate of total haddock
catch for all such trips in a given haddock stock area.
* * * * *
(3) The Herring GB Haddock Accountability Measure Area. The Herring
GB Haddock AM Area is defined by the straight lines connecting
[[Page 26160]]
the following points in the order stated (copies of a map depicting the
area are available from the Regional Administrator upon request):
Herring GB Haddock Accountability Measure Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg] 20' 70[deg] 00'
2........................... 42[deg] 20' (\1\)
3........................... 40[deg] 30' (\1\)
4........................... 40[deg] 30' 66[deg] 40'
5........................... 39[deg] 50' 66[deg] 40'
6........................... 39[deg] 50' 68[deg] 50'
7........................... (\2\) 68[deg] 50'
8........................... 41[deg] 00' (\3\)
9........................... 41[deg] 00' 69[deg] 30'
10.......................... 41[deg] 10' 69[deg] 30'
11.......................... 41[deg] 10' 69[deg] 50'
12.......................... 41[deg] 20' 69[deg] 50'
13.......................... 41[deg] 20' (\4\)
14.......................... (\5\) 70[deg] 00'
15.......................... (\6\) 70[deg] 00'
16.......................... (\7\) 70[deg] 00'
------------------------------------------------------------------------
\1\ The intersection of the U.S./Canada maritime boundary.
\2\ The intersection of the boundary of Closed Area I and 68[deg] 50' W.
long.
\3\ The intersection of the boundary of Closed Area I and 41[deg] 00' N.
lat.
\4\ The intersection of the east-facing shoreline of Nantucket, MA, and
41[deg] 20' N. lat.
\5\ The intersection of the north-facing shoreline of Nantucket, MA, and
70[deg] 00' W. long.
\6\ The intersection of the south-facing shoreline of Cape Cod, MA, and
70[deg] 00' W. long.
\7\ The intersection of the north-facing shoreline of Cape Cod, MA, and
70[deg] 00' W. long.
(4) The haddock incidental catch caps specified are for the NE
multispecies fishing year (May 1-April 30), which differs from the
herring fishing year (January 1-December 31). If the haddock incidental
catch allowance is attained by the herring midwater trawl fishery for
the GOM or GB, as specified in Sec. 648.85(d), the 2,000-lb (907.2-kg)
limit on herring possession in the applicable AM Area, as described in
paragraph (a)(3)(ii)(A)(2) or (3) of this section, shall be in effect
until the end of the NE multispecies fishing year. For example, the
2011 haddock incidental catch cap is specified for the period May 1,
2011-April 30, 2012, and the 2012 haddock catch cap would be specified
for the period May 1, 2012-April 30, 2013. If the catch of haddock by
herring midwater trawl vessels reached the 2011 incidental catch cap at
any time prior to the end of the NE. multispecies fishing year (April
30, 2012), the 2,000-lb (907.2-kg) limit on possession of herring in
the applicable AM Area would extend through April 30, 2012. Beginning
May 1, 2012, the 2012 catch cap would go into effect.
* * * * *
0
12. In Sec. 648.87:
0
a. Add paragraphs (b)(1)(ii)(A) through (F);
0
b. Revise paragraphs (b)(1)(v)(B), (b)(1)(vi)(B), (b)(2)(xi), (b)(4)
introductory text, (b)(4)(i)(F) and (G), (b)(4)(i)(I), and (J), and
(b)(4)(ii);
0
c. Remove paragraphs (b)(4)(iii);
0
d. Redesignate paragraph (b)(4)(iv) as paragraph (b)(4)(iii);
0
e. Remove paragraph (b)(5);
0
f. Redesignate paragraph (b)(6) as paragraph (b)(5) and revise it; and
0
g. Revise paragraph (c)(2)(i); and
The revisions and additions read as follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(A) CC/GOM Yellowtail Flounder Stock Area. The CC/GOM Yellowtail
Flounder Stock Area, for the purposes of identifying stock areas for
trip limits specified in Sec. 648.86, and for determining areas
applicable to sector allocations of CC/GOM yellowtail flounder ACE
pursuant to paragraph (b) of this section, is defined as the area
bounded on the north and west by the coastline of the United States, on
the east by the U.S./Canadian maritime boundary, and on the south by
rhumb lines connecting the following points in the order stated:
CC/GOM Yellowtail Flounder Stock Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1.............................. (\1\)............. 70[deg] 00'
2.............................. (\2\)............. 70[deg] 00'
3.............................. 41[deg] 20'....... (\3\)
4.............................. 41[deg] 20'....... 69[deg] 50'
5.............................. 41[deg] 10'....... 69[deg] 50'
6.............................. 41[deg] 10'....... 69[deg] 30'
7.............................. 41[deg] 00'....... 69[deg] 30'
8.............................. 41[deg] 00'....... 68[deg] 50'
9.............................. 42[deg] 20'....... 68[deg] 50'
10............................. 42[deg] 20'....... (\4\)
------------------------------------------------------------------------
\1\ Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
00' W. long.
\2\ Intersection of north-facing coastline of Nantucket, MA, and 70[deg]
00' W. long.
\3\ Intersection of east-facing coastline of Nantucket, MA, and 41[deg]
20' N. lat.
\4\ U.S./Canada maritime boundary.
(B) SNE/MA Yellowtail Flounder Stock Area. The SNE/MA Yellowtail
Flounder Stock Area, for the purposes of identifying stock areas for
trip limits specified in Sec. 648.86, and for determining areas
applicable to sector allocations of SNE/MA yellowtail flounder ACE
pursuant to paragraph (b) of this section, is the area bounded by rhumb
lines connecting the following points in the order stated:
SNE/MA Yellowtail Flounder Stock Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1.............................. 35[deg] 00'....... (\1\)
2.............................. 35[deg] 00'....... (\2\)
3.............................. 39[deg] 00'....... (\2\)
4.............................. 39[deg] 00'....... 69[deg] 00'
5.............................. 39[deg] 50'....... 69[deg] 00'
7.............................. 39[deg] 50'....... 68[deg] 50'
8.............................. 41[deg] 00'....... 68[deg] 50'
9.............................. 41[deg] 00'....... 69[deg] 30'
10............................. 41[deg] 10'....... 69[deg] 30'
11............................. 41[deg] 10'....... 69[deg] 50'
12............................. 41[deg] 20'....... 69[deg] 50'
13............................. 41[deg] 20'....... (\3\)
14............................. (\4\)............. 70[deg] 00'
15............................. (\5\)............. 70[deg] 00'
------------------------------------------------------------------------
\1\ Intersection of east-facing coastline of Outer Banks, NC, and
35[deg] 00' N. lat.
\2\ U.S./Canada maritime boundary.
\3\ Intersection of east-facing coastline of Nantucket, MA, and 41[deg]
20' N. lat.
\4\ Intersection of north-facing coastline of Nantucket, MA, and 70[deg]
00' W. long.
\5\ Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
00' W. long.
(C) GOM Haddock Stock Area. The GOM Haddock Stock Area, for the
purposes of identifying stock areas for trip limits specified in Sec.
648.86 and for determining areas applicable to sector allocations of
GOM haddock ACE pursuant to paragraph (b) of this section, is defined
as the area bounded on the north and west by the coastline of the
United States, on the east by the U.S./Canadian maritime boundary, and
on the south by straight lines connecting the following points in the
order stated:
GOM Haddock Stock Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1.............................. (\1\)............. 70[deg] 00'
2.............................. 42[deg] 20'....... 70[deg] 00'
3.............................. 42[deg] 20'....... 67[deg] 40'
4.............................. (\2\)............. 67[deg] 40'
5.............................. (\3\)............. 67[deg] 40'
6.............................. 43[deg] 50'....... 67[deg] 40'
7.............................. 43[deg] 50'....... (\4\)
8.............................. (\4\)............. 67[deg] 00'
9.............................. (\5\)............. 67[deg] 00'
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
70[deg] 00' W. long.
\2\ U.S./Canada maritime boundary southern intersection with 67[deg] 40'
W. long.).
\3\ U.S./Canada maritime boundary northern intersection with 67[deg] 40'
W. long.).
\4\ U.S./Canada maritime boundary.
\5\ Intersection of the south-facing ME coastline and 67[deg] 00' W.
long.
(D) GB Haddock Stock Area. The GB Haddock Stock Area, for the
purposes of identifying stock areas for trip limits specified in Sec.
648.86 and for determining areas applicable to sector allocations of GB
haddock ACE pursuant to paragraph (b) of this section, is defined as
the area bounded on the west by the coastline of the United
[[Page 26161]]
States, on the south by a line running from the east-facing coastline
of North Carolina at 35[deg] N. lat. until its intersection with the
EEZ, on the east by the U.S./Canadian maritime boundary, and bounded on
the north by straight lines connecting the following points in the
order stated:
GB Haddock Stock Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1.............................. (\1\)............. 70[deg] 00'
2.............................. 42[deg] 20'....... 70[deg] 00'
3.............................. 42[deg] 20'....... (\2\)
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
70[deg] 00' W. long.
\2\ U.S./Canada maritime boundary.
(E) Redfish Stock Area. The Redfish Stock Area, for the purposes of
identifying stock areas for trip limits specified in Sec. 648.86 and
for determining areas applicable to sector allocations of redfish ACE
pursuant to paragraph (b) of this section, is defined as the area
bounded on the north and west by the coastline of the United States, on
the east by the U.S./Canadian maritime boundary, and bounded on the
south by a rhumb line running from the east-facing coastline of North
Carolina at 35[deg] N. lat. until its intersection with the EEZ.
(F) GOM Winter Flounder Stock Area. The GOM Winter Flounder Stock
Area, for the purposes of identifying stock areas for trip limits
specified in Sec. 648.86 and for determining areas applicable to
sector allocations of GOM winter flounder ACE pursuant to paragraph (b)
of this section, is the area bounded by straight lines connecting the
following points in the order stated:
GOM Winter Flounder Stock Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1.............................. (\1\)............. 70[deg] 00'
2.............................. 42[deg] 20'....... 70[deg] 00'
3.............................. 42[deg] 20'....... 67[deg] 40'
4.............................. (\2\)............. 67[deg] 40'
5.............................. (3)............... 67[deg] 40'
6.............................. 43[deg] 50'....... 67[deg] 40'
7.............................. 43[deg] 50'....... (\4\)
8.............................. (\4\)............. 67[deg] 00'
9.............................. (\5\)............. 67[deg] 00'
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
70[deg] 00' W. long.
\2\ U.S./Canada maritime boundary southern intersection with 67[deg] 40'
N. lat.).
\3\ U.S./Canada maritime boundary northern intersection with 67[deg] 40'
N. lat.).
\4\ U.S./Canada maritime boundary.
\5\ Intersection of the south-facing ME coastline and 67[deg] 00' W.
long.
* * * * *
(v) * * *
(B) Independent third-party monitoring program. Beginning in
fishing year 2013 (May 1, 2013), a sector must develop and implement an
at-sea or electronic monitoring program to verify area fished, as well
as catch and discards by species and gear type, and that is consistent
with the goals and objectives of groundfish monitoring programs at
Sec. 648.11(l). The details of any at-sea or electronic monitoring
program must be specified in the sector's operations plan, pursuant to
paragraph (b)(2)(xi) of this section, and must meet the operational
standards specified in paragraph (b)(5) of this section. Electronic
monitoring may be used in place of actual observers if the technology
is deemed sufficient by NMFS for a specific trip type based on gear
type and area fished, in a manner consistent with the Administrative
Procedure Act. The level of coverage for trips by sector vessels is
specified in paragraph (b)(1)(v)(B)(1) of this section. The at-sea/
electronic monitoring program shall be reviewed and approved by the
Regional Administrator as part of a sector's operations plans in a
manner consistent with the Administrative Procedure Act. A service
provider providing at-sea or electronic monitoring services pursuant to
this paragraph (b)(1)(v)(B) must meet the service provider standards
specified in paragraph (b)(4) of this section, and be approved by NMFS
in a manner consistent with the Administrative Procedure Act.
(1) Coverage levels. Except as specified in paragraph
(b)(1)(v)(B)(1)(i) of this section, any service provider providing at-
sea or electronic monitoring services required under this paragraph
(b)(1)(v)(B)(1) must provide coverage that is fair and equitable, and
distributed in a statistically random manner among all trips such that
coverage is representative of fishing activities by all vessels within
each sector and by all operations of vessels operating in each sector
throughout the fishing year. Coverage levels for an at-sea monitoring
program shall be specified by NMFS, pursuant to paragraph
(b)(1)(v)(B)(1)(i) of this section, but shall be less than 100 percent
of all sector trips. In the event that a NMFS-sponsored observer and a
third-party at-sea monitor are assigned to the same trip, only the NMFS
observer must observe that trip. If either an at-sea monitor or
electronic monitoring is assigned to a particular trip, a vessel may
not leave port without the appropriate at-sea monitor or electronic
monitoring equipment on board.
(i) At-sea/electronic monitoring. Unless otherwise specified in
this paragraph (b)(1)(v)(B)(1)(i), beginning in fishing year 2013,
coverage levels must be sufficient to at least meet the coefficient of
variation specified in the Standardized Bycatch Reporting Methodology
at the overall stock level for each stock of regulated species and
ocean pout, and to monitor sector operations, to the extent
practicable, in order to reliably estimate overall catch by sector
vessels. In making its determination, NMFS shall take into account the
goals and objective of groundfish monitoring programs at Sec.
648.11(l), the National Standards and requirements of the Magnuson-
Stevens Act, including but not limited to the costs to sector vessels
and NMFS, and any other relevant factors. For FYs 2013 and beyond, NMFS
shall specify a separate coverage rate, lower than the coverage rate
for all other sector trips, for sector trips fishing with 10-inch
(25.4-cm) mesh or larger gillnets on a monkfish DAS, pursuant to Sec.
648.91(c)(1)(iii), and only in the SNE Broad Stock Area, as defined at
Sec. 648.10(k)(3)(iv).
(2) Hail reports. For the purposes of the at-sea monitoring
requirements specified in paragraph (b)(1)(v)(B) of this section,
sector vessels must submit all hail reports for a sector trip in which
the NE multispecies catch applies against the ACE allocated to a
sector, as specified in this part, to service providers offering at-sea
monitoring services. The mechanism and timing of the transmission of
such hail reports must be consistent with instructions provided by the
Regional Administrator for any at-sea or electronic monitoring program
required by paragraph (b)(1)(v)(B) of this section, or specified in the
annual sector operations plan, consistent with paragraph (b)(5) of this
section.
(3) Notification of service provider change. If, for any reason, a
sector decides to change approved service providers used to provide at-
sea or electronic monitoring services required in this paragraph
(b)(1)(v), the sector manager must first inform NMFS in writing in
advance of the effective date of the change in approved service
providers in conjunction with the submission of the next weekly sector
catch report specified in paragraph (b)(1)(vi)(B) of this section. A
sector may employ more than one service provider at any time, provided
any service provider employed by a sector meets the standards specified
in paragraph (b)(4) of this section.
(vi) * * *
(B) Weekly catch report. Each sector must submit weekly reports to
NMFS stating the remaining balance of ACE allocated to each sector
based upon
[[Page 26162]]
regulated species and ocean pout landings and discards of vessels
participating in that sector and any compliance/enforcement concerns.
These reports must include at least the following information, as
instructed by the Regional Administrator: Week ending date; species,
stock area, gear, number of trips, reported landings (landed pounds and
live pounds), discards (live pounds), total catch (live pounds), status
of the sector's ACE (pounds remaining and percent remaining), and
whether this is a new or updated record of sector catch for each NE
multispecies stock allocated to that particular sector; sector
enforcement issues; and a list of vessels landing for that reporting
week. These weekly catch reports must be submitted no later than 0700
hr on the second Monday after the reporting week, as defined in this
part. The frequency of these reports must be increased to more than a
weekly submission when the balance of remaining ACE is low, as
specified in the sector operations plan and approved by NMFS. If
requested, sectors must provide detailed trip-by-trip catch data to
NMFS for the purposes of auditing sector catch monitoring data based
upon guidance provided by the Regional Administrator.
* * * * *
(2) * * *
(xi) Detailed plans for the monitoring and reporting of landings
and discards by sector participants, including, but not limited to,
detailed information describing the sector's at-sea/electronic
monitoring program for monitoring utilization of ACE allocated to that
sector; identification of the independent third-party service providers
employed by the sector to provide at-sea/electronic monitoring
services; the mechanism and timing of any hail reports; a list of
specific ports where participating vessels will land fish, with
specific exemptions noted for safety, weather, etc., allowed, provided
the sector provides reasonable notification to NMFS concerning a
deviation from the listed ports; and any other information about such a
program required by NMFS;
* * * * *
(4) Independent third-party monitoring provider standards. Any
service provider intending to provide at-sea/electronic monitoring
services described in paragraph (b)(1)(v) of this section must apply to
and be approved/certified by NMFS in a manner consistent with the
Administrative Procedure Act. NMFS shall approve/certify service
providers and/or at-sea monitors as eligible to provide sector
monitoring services specified in this part and can disapprove/decertify
service providers and/or individual monitors through notice in writing
to individual service providers/monitors if the following criteria are
no longer being met:
(i) * * *
(F) A description of the applicant's ability to carry out the
responsibilities and duties of a sector monitoring/reporting service
provider and the arrangements to be used, including whether the service
provider is able to offer at-sea monitoring services;
(G) Evidence of adequate insurance (copies of which shall be
provided to the vessel owner, operator, or vessel manager, when
requested) to cover injury, liability, and accidental death to cover
at-sea monitors (including during training); vessel owner; and service
provider;
* * * * *
(I) Proof that the service provider's at-sea monitors have passed
an adequate training course sponsored by the service providers to the
extent not funded by NMFS that is consistent with the curriculum used
in the current yearly NEFOP training course, unless otherwise specified
by NMFS;
(J) An Emergency Action Plan describing the provider's response to
an emergency with an at-sea monitor, including, but not limited to,
personal injury, death, harassment, or intimidation; and
* * * * *
(ii) Service provider performance requirements. At-sea monitoring
service providers must be able to document compliance with the
following criteria and requirements:
(A) A service provider must establish and carry out a comprehensive
plan to deploy NMFS-certified at-sea monitors, or other at-sea
monitoring mechanism, such as electronic monitoring equipment that is
approved by NMFS, according to a prescribed coverage level (or level of
precision for catch estimation), as specified by NMFS, including all of
the necessary vessel reporting/notice requirements to facilitate such
deployment, as follows:
(1) A service provider must be available to industry 24 hr per day,
7 days per week, with the telephone system monitored a minimum of four
times daily to ensure rapid response to industry requests;
(2) A service provider must be able to deploy at-sea monitors, or
other approved at-sea monitoring mechanism to all ports in which
service is required by sectors, or a subset of ports as part of a
contract with a particular sector;
(3) A service provider must report at-sea monitors and other
approved at-sea monitoring mechanism deployments to NMFS and the sector
manager in a timely manner to determine whether the predetermined
coverage levels are being achieved for the appropriate sector;
(4) A service provider must assign at-sea monitors and other
approved at-sea monitoring mechanisms without regard to any preference
by the sector manager or representatives of vessels other than when the
service is needed and the availability of approved/certified monitors
and other at-sea monitoring mechanisms;
(5) A service provider's at-sea monitor assignment must be fair,
equitable, representative of fishing activities within each sector, and
able to monitor fishing activity throughout the fishing year;
(6) For service providers offering catch estimation or at-sea
monitoring services, a service provider must be able to determine an
estimate of discards for each trip and provide such information to the
sector manager and NMFS, as appropriate and as required by this
section;
(B) The service provider must ensure that at-sea monitors remain
available to NMFS, including NMFS Office for Law Enforcement, for
debriefing for at least 2 weeks following any monitored trip/offload;
(C) The service provider must report possible at-sea monitor
harassment; discrimination; concerns about vessel safety or marine
casualty; injury; and any information, allegations, or reports
regarding at-sea monitor conflict of interest or breach of the
standards of behavior to NMFS and/or the sector manager, as specified
by NMFS;
(D) The service provider must submit to NMFS, if requested, a copy
of each signed and valid contract (including all attachments,
appendices, addendums, and exhibits incorporated into the contract)
between the service provider and those entities requiring services
(i.e., sectors and participating vessels) and between the service
provider and specific dockside, roving, or at-sea monitors;
(E) The service provider must submit to NMFS, if requested, copies
of any information developed and used by the service providers
distributed to vessels, such as informational pamphlets, payment
notification, description of duties, etc.;
(F) A service provider may refuse to deploy an at-sea monitor or
other approved at-sea monitoring mechanism on a requesting fishing
vessel for any reason including, but not limited to, the following:
[[Page 26163]]
(1) If the service provider does not have an available at-sea
monitor or other at-sea monitoring mechanism approved by NMFS within
the advanced notice requirements established by the service provider;
(2) If the service provider is not given adequate notice of vessel
departure or landing from the sector manager or participating vessels,
as specified by the service provider;
(3) For the purposes of at-sea monitoring, if the service provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to the reasons described in Sec. 600.746; and
(4) Failure to pay for previous deployments of at-sea monitors, or
other approved at-sea monitoring mechanism.
(G) With the exception of a service provider offering reporting,
dockside, and/or at-sea monitoring services to participants of another
fishery managed under Federal regulations, a service provider must not
have a direct or indirect interest in a fishery managed under Federal
regulations, including, but not limited to, fishing vessels, dealers,
shipping companies, sectors, sector managers, advocacy groups, or
research institutions and may not solicit or accept, directly or
indirectly, any gratuity, gift, favor, entertainment, loan, or anything
of monetary value from anyone who conducts fishing or fishing-related
activities that are regulated by NMFS, or who has interests that may be
substantially affected by the performance or nonperformance of the
official duties of service providers;
(H) A system to record, retain, and distribute the following
information to NMFS, as requested, for a period specified by NMFS,
including:
(1) At-sea monitor and other approved monitoring equipment
deployment levels, including the number of refusals and reasons for
such refusals;
(2) Incident/non-compliance reports (e.g., failure to offload
catch); and
(3) Hail reports, landings records, and other associated
interactions with vessels and dealers.
(I) A means to protect the confidentiality and privacy of data
submitted by vessels, as required by the Magnuson-Stevens Act; and
(J) A service provider must be able to supply at-sea monitors with
sufficient safety and data-gathering equipment, as specified by NMFS.
* * * * *
(5) At-sea/electronic monitoring operational standards. In addition
to the independent third-party monitoring provider standards specified
in paragraph (b)(4) of this section, any at-sea/electronic monitoring
program developed as part of a sector's yearly operations plan pursuant
to paragraph (b)(1)(v)(B) of this section must meet the following
operational standards to be approved by NMFS:
(i) Gear. Each at-sea monitor must be provided with all of the
equipment specified by the Northeast Fisheries At-sea Monitoring
Program. A list of such equipment is available from the Northeast
Fisheries Science Center upon request. At-sea/electronic monitoring
service providers are responsible for the cost of providing such gear
to at-sea monitors to the extent not funded by NMFS. This gear shall be
inspected by NMFS upon the completion of training required pursuant to
paragraph (b)(4)(i)(I) of this section.
(ii) Vessel selection protocol. An at-sea/electronic monitoring
program service provider must develop a formal vessel-selection
protocol to deploy at-sea monitors and electronic monitoring equipment
in a statistically random manner consistent with the coverage levels
required pursuant to paragraph (b)(1)(v)(B)(1) of this section. This
protocol must include a method to allow for waivers in specific
circumstances, including how waivers would be requested, assessed, and
recorded.
(iii) Reporting/recordkeeping requirements--(A) Vessel
requirements. In addition to all other reporting/recordkeeping
requirements specified in this part, to facilitate the deployment of
at-sea monitors and electronic monitoring equipment pursuant to
paragraph (b)(1)(v)(B)(1) of this section, the operator of a vessel
fishing on a sector trip must provide at-sea/electronic monitoring
service providers with at least the following information: The vessel
name, permit number, trip ID number in the form of the VTR serial
number of the first VTR page for that trip or another trip identifier
specified by NMFS, whether a monkfish DAS will be used, and an estimate
of the date/time of departure in advance of each trip. The timing of
such notice shall be sufficient to allow ample time for the service
provider to determine whether an at-sea monitor or electronic
monitoring equipment will be deployed on each trip and allow the at-sea
monitor or electronic monitoring equipment to prepare for the trip and
get to port, or to be installed on the vessel, respectively. The
details of the timing, method (e.g., phone, email, etc.), and
information needed for such pre-trip notifications shall be included as
part of a sector's yearly operations plan. If a vessel has been
informed by a service provider that an at-sea monitor or electronic
monitoring equipment has been assigned to a particular trip pursuant to
paragraph (b)(6)(iii)(B)(1) of this section, the vessel may not leave
port to begin that trip until the at-sea monitor has arrived and
boarded the vessel, or the electronic monitoring equipment has been
properly installed.
(B) At-sea/electronic monitoring service provider requirements--(1)
Confirmation of pre-trip notification. Upon receipt of a pre-trip
notification pursuant to paragraph (b)(5)(iii)(A) of this section, the
service provider shall inform the vessel operator whether the vessel
will be monitored by an at-sea observer or electronic monitoring
equipment for that trip, or will be issued an at-sea/electronic
monitoring waiver for that trip based upon the vessel selection
protocol specified in paragraph (b)(5)(ii) of this section.
(2) At-sea/electronic monitoring report. A report detailing area
fished and the amount of each species kept and discarded shall be
submitted electronically in a standard acceptable form to the
appropriate sector and NMFS within 48 hr of the completion of the trip,
as instructed by the Regional Administrator. The data elements to be
collected and the format for submission shall be specified by NMFS and
distributed to all approved at-sea/electronic monitoring service
providers and sectors. At-sea/electronic monitoring data shall not be
accepted until such data pass automated NMFS data quality checks.
(iv) Safety hazards--(A)Vessel requirements. The operator of a
sector vessel must detail and identify any safety hazards to any at-sea
monitor assigned pursuant to paragraph (b)(5)(iii)(B)(1) of this
section prior to leaving port. A vessel cannot begin a trip if it has
failed a review of safety issues pursuant to paragraph (b)(5)(iv)(B) of
this section, until the identified safety deficiency has been resolved,
pursuant to Sec. 600.746(i).
(B) At-sea/electronic monitoring service provider requirements. An
at-sea monitor must complete a pre-trip vessel safety checklist
provided by NMFS before an at-sea monitor can leave port onboard a
vessel on a sector trip. If the vessel fails a review of safety issues
pursuant to this paragraph (b)(5)(iv)(B), an at-sea monitor cannot be
deployed on that vessel for that trip.
(v) Adjustment to operational standards. The at-sea/electronic
monitoring operational standards specified in paragraph (b)(5) of this
section may be revised by the Regional Administrator in a manner
consistent with the Administrative Procedure Act.
(c) * * *
(2) * * *
[[Page 26164]]
(i) Regulations that may not be exempted for sector participants.
The Regional Administrator may not exempt participants in a sector from
the following Federal fishing regulations: Specific time and areas
within the NE multispecies year-round closure areas; permitting
restrictions (e.g., vessel upgrades, etc.); gear restrictions designed
to minimize habitat impacts (e.g., roller gear restrictions, etc.);
reporting requirements; and AMs specified at Sec. 648.90(a)(5)(i)(D).
For the purposes of this paragraph (c)(2)(i), the DAS reporting
requirements specified at Sec. 648.82; the SAP-specific reporting
requirements specified at Sec. 648.85; and the reporting requirements
associated with a dockside monitoring program specified in paragraph
(b)(5)(i) of this section are not considered reporting requirements,
and the Regional Administrator may exempt sector participants from
these requirements as part of the approval of yearly operations plans.
For the purpose of this paragraph (c)(2)(i), the Regional Administrator
may not grant sector participants exemptions from the NE multispecies
year-round closures areas defined as Essential Fish Habitat Closure
Areas as defined at Sec. 648.81(h); the Fippennies Ledge Area as
defined in paragraph (c)(2)(i)(A) of this section; Closed Area I and
Closed Area II, as defined at Sec. 648.81(a) and (b), respectively,
during the period February 16 through April 30; and the Western GOM
Closure Area, as defined at Sec. 648.81(e), where it overlaps with any
Sector Rolling Closure Areas, as defined at Sec. 648.81(f)(2)(vi).
This list may be modified through a framework adjustment, as specified
in Sec. 648.90.
(A) Fippennies Ledge Area. The Fippennies Ledge Area is bounded by
the following coordinates, connected by straight lines in the order
listed:
Fippennies Ledge Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]50.0' 69[deg]17.0'
2........................... 42[deg]44.0' 69[deg]14.0'
3........................... 42[deg]44.0' 69[deg]18.0'
4........................... 42[deg]50.0' 69[deg]21.0'
------------------------------------------------------------------------
(B) [Reserved]
* * * * *
0
13. In Sec. 648.89, revise paragraph (f)(2) and add paragraph (f)(3)
to read as follows:
Sec. 648.89 Recreational and charter/party vessel restrictions.
* * * * *
(f) * * *
(2) Reactive AM adjustment. If it is determined that any
recreational sub-ACL was exceeded, as specified in paragraph (f)(1) of
this section, the Regional Administrator, after consultation with the
New England Fishery Management Council, shall develop measures
necessary to prevent the recreational fishery from exceeding the
appropriate sub-ACL in future years. Appropriate AMs for the
recreational fishery, including adjustments to fishing season, minimum
fish size, or possession limits, may be implemented in a manner
consistent with the Administrative Procedure Act, with final measures
published in the Federal Register no later than January when possible.
Separate AMs shall be developed for the private and charter/party
components of the recreational fishery.
(3) Proactive AM adjustment. When necessary, the Regional
Administrator, after consultation with the New England Fishery
Management Council, may adjust recreational measures to ensure the
recreational fishery achieves, but does not exceed any recreational
fishery sub-ACL in a future fishing year. Appropriate AMs for the
recreational fishery, including adjustments to fishing season, minimum
fish size, or possession limits, may be implemented in a manner
consistent with the Administrative Procedure Act, with final measures
published in the Federal Register prior to the start of the fishing
year where possible. In specifying these AMs, the Regional
Administrator shall take into account the non-binding prioritization of
possible measures recommended by the Council: for cod, first increases
to minimum fish sizes, then adjustments to seasons, followed by changes
to bag limits; and for haddock, first increases to minimum size limits,
then changes to bag limits, and then adjustments to seasons.
0
14. In Sec. 648.90:
0
a. Revise paragraphs (a)(4)(iii) introductory text and (a)(4)(iii)(B),
(C), and (E);
0
b. Add paragraphs (a)(4)(iii)(F) through (H); and
0
c. Revise paragraphs (a)(4)(iv)(B) and (a)(5).
The revisions and additions read as follows:
Sec. 648.90 NE multispecies assessment, framework procedures and
specifications, and flexible area action system.
* * * * *
(a) * * *
(4) * * *
(iii) ABC/ACL distribution. The ABCs/ACLs adopted by the Council
for each regulated species or ocean pout stock pursuant to this
paragraph (a)(4) shall be subdivided among the various sub-components
of the fishery, as specified in paragraphs (a)(4)(iii)(A) through (H)
of this section. For transboundary stocks managed by the Understanding,
pursuant to Sec. 648.85(a), the distribution of ABC/ACLs described in
paragraphs (a)(4)(iii)(A) through (H) of this section shall be based
upon the catch available to U.S. fishermen. The Council may revise its
recommendations for the distribution of ABCs and ACLs among these and
other sub-components through the process to specify ABCs and ACLs, as
described in this paragraph (a)(4).
* * * * *
(B) Regulated species or ocean pout catch by exempted fisheries.
Unless otherwise specified in paragraphs (a)(4)(iii)(F) or (G) of this
section, regulated species or ocean pout catch by other, non-specified
sub-components of the fishery, including, but not limited to, exempted
fisheries that occur in Federal waters and fisheries harvesting
exempted species specified in Sec. 648.80(b)(3) shall be deducted from
the ABC/ACL of each regulated species or ocean pout stock, pursuant to
the process to specify ABCs and ACLs described in this paragraph
(a)(4). The catch of these non-specified sub-components of the ACL
shall be monitored using data collected pursuant to this part. If catch
from such fisheries exceeds the amount specified in this paragraph
(a)(4)(iii)(B), AMs shall be developed to prevent the overall ACL for
each stock from being exceeded, pursuant to the framework adjustment
process specified in this section.
(C) Yellowtail flounder catch by the Atlantic sea scallop fishery.
Yellowtail flounder catch in the Atlantic sea scallop fishery, as
defined in subpart D of this part, shall be deducted from the ABC/ACL
for each yellowtail flounder stock pursuant to the restrictions
specified in subpart D of this part and the process to specify ABCs and
ACLs, as described in paragraph (a)(4) of this section. Unless
otherwise specified in this paragraph (a)(4)(iii)(C), or subpart D of
this part, the specific value of the sub-components of the ABC/ACL for
each stock of yellowtail flounder distributed to the Atlantic sea
scallop fishery shall be specified pursuant to the biennial adjustment
process specified in paragraph (a)(2) of this section. The Atlantic sea
scallop fishery shall be allocated 40 percent of the GB yellowtail ABC
(U.S. share only) in fishing year 2013, and 16 percent in fishing year
2014 and each fishing year thereafter, pursuant to the process for
specifying ABCs and ACLs described in this paragraph (a)(4). An ACL
based on
[[Page 26165]]
this ABC shall be determined using the process described in paragraph
(a)(4)(i) of this section. Based on information available, NMFS shall
project the expected scallop fishery catch of GB yellowtail flounder
for the current fishing year by January 15. If NMFS determines that the
scallop fishery will catch less than 90 percent of its GB yellowtail
flounder sub-ACL, the Regional Administrator may reduce the scallop
fishery sub-ACL to the amount projected to be caught, and increase the
groundfish fishery sub-ACL by any amount up to the amount reduced from
the scallop fishery sub-ACL. The revised groundfish fishery sub-ACL
shall be distributed to the common pool and sectors based on the
process specified in paragraph (a)(4)(iii)(H)(1) of this section.
* * * * *
(E) SNE/MA windowpane flounder catch by the Atlantic sea scallop
fishery. SNE/MA windowpane flounder catch in the Atlantic sea scallop
fishery, as defined in subpart D of this part, shall be deducted from
the ABC/ACL for SNE/MA windowpane flounder pursuant to the restrictions
specified in subpart D of this part and the process to specify ABCs and
ACLs, as described in paragraph (a)(4) of this section. The Atlantic
sea scallop fishery shall be allocated 36 percent of the GB yellowtail
ABC (U.S. share only) in fishing year 2013 and each fishing year after,
pursuant to the process for specifying ABCs and ACLs described in this
paragraph (a)(4). An ACL based on this ABC shall be determined using
the process described in paragraph (a)(4)(i) of this section.
(F) SNE/MA windowpane flounder catch by exempted fisheries. SNE/MA
windowpane flounder catch by other, non-specified sub-components of the
fishery, including, but not limited to, exempted fisheries that occur
in Federal waters and fisheries harvesting exempted species specified
in Sec. 648.80(b)(3), shall be deducted from the ABC/ACL for SNE/MA
windowpane flounder pursuant to the process to specify ABCs and ACLs,
as described in this paragraph (a)(4). The specific value of the sub-
components of the ABC/ACL for SNE/MA windowpane flounder distributed to
these other fisheries shall be specified pursuant to the biennial
adjustment process specified in paragraph (a)(2) of this section.
(G) GB yellowtail flounder catch by small mesh fisheries. GB
yellowtail flounder catch by bottom trawl vessels fishing with a codend
mesh size of less than 5-inch (12.7-cm) in other, non-specified sub-
components of the fishery, including, but not limited to, exempted
fisheries that occur in Federal waters and fisheries harvesting
exempted species specified in Sec. 648.80(b)(3), shall be deducted
from the ABC/ACL for GB yellowtail flounder pursuant to the process to
specify ABCs and ACLs, as described in this paragraph (a)(4). This
small mesh fishery shall be allocated 2 percent of the GB yellowtail
ABC (U.S. share only) in fishing year 2013 and each fishing year after,
pursuant to the process for specifying ABCs and ACLs described in this
paragraph (a)(4). An ACL based on this ABC shall be determined using
the process described in paragraph (a)(4)(i) of this section.
(H) Regulated species or ocean pout catch by the NE multispecies
commercial and recreational fisheries. Unless otherwise specified in
the ACL recommendations developed pursuant to paragraph (a)(4)(i) of
this section, after all of the deductions and considerations specified
in paragraphs (a)(4)(iii)(A) through (G) of this section, the remaining
ABC/ACL for each regulated species or ocean pout stock shall be
allocated to the NE multispecies commercial and recreational fisheries,
pursuant to this paragraph (a)(4)(iii)(H).
(1) Recreational allocation. Unless otherwise specified in
paragraph (a)(5) of this section, recreational catches shall be
compared to the ACLs allocated pursuant to this paragraph
(a)(4)(iii)(H)(1) for the purposes of determining whether adjustments
to recreational measures are necessary, pursuant to the recreational
fishery AMs specified in Sec. 648.89(f).
(i) Stocks allocated. Unless otherwise specified in this paragraph
(a)(4)(iii)(H)(1), the ABCs/ACLs for GOM cod and GOM haddock available
to the NE multispecies fishery pursuant to paragraph (a)(4)(iii)(H) of
this section shall be divided between commercial and recreational
components of the fishery, based upon the average proportional catch of
each component for each stock during fishing years 2001 through 2006.
(ii) Process for determining if a recreational allocation is
necessary. A recreational allocation may not be made if it is
determined that, based upon available information, the ACLs for these
stocks are not being fully harvested by the NE multispecies fishery, or
if the recreational harvest, after accounting for state waters catch
pursuant to paragraph (a)(4)(iii)(A) of this section, is less than 5
percent of the overall catch for a particular stock of regulated
species or ocean pout.
(2) Commercial allocation. Unless otherwise specified in this
paragraph (a)(4)(iii)(H)(2), the ABC/ACL for regulated species or ocean
pout stocks available to the commercial NE multispecies fishery, after
consideration of the recreational allocation pursuant to paragraph
(a)(4)(iii)(H)(1) of this section, shall be divided between vessels
operating under approved sector operations plans, as described at Sec.
648.87(c), and vessels operating under the provisions of the common
pool, as defined in this part, based upon the cumulative PSCs of
vessels participating in sectors calculated pursuant to Sec.
648.87(b)(1)(i)(E). For fishing years 2010 and 2011, the ABC/ACL of
each regulated species or ocean pout stocks not allocated to sectors
pursuant to Sec. 648.87(b)(1)(i)(E) (i.e., Atlantic halibut, SNE/MA
winter flounder, ocean pout, windowpane flounder, and Atlantic
wolffish) that is available to the commercial NE multispecies fishery
shall be allocated entirely to the common pool. Unless otherwise
specified in paragraph (a)(5) of this section, regulated species or
ocean pout catch by common pool and sector vessels shall be deducted
from the sub-ACL/ACE allocated pursuant to this paragraph
(a)(4)(iii)(H)(2) for the purposes of determining whether adjustments
to common pool measures are necessary, pursuant to the common pool AMs
specified in Sec. 648.82(n), or whether sector ACE overages must be
deducted, pursuant to Sec. 648.87(b)(1)(iii).
(3) Revisions to commercial and recreational allocations.
Distribution of the ACL for each stock available to the NE multispecies
fishery between and among commercial and recreational components of the
fishery may be implemented through a framework adjustment pursuant to
this section. Any changes to the distribution of ACLs to the NE
multispecies fishery shall not affect the implementation of AMs based
upon the distribution in effect at the time of the overage that
triggered the AM.
(iv) * * *
(B) Discards. Unless otherwise specified in this paragraph
(a)(4)(iv)(B), regulated species or ocean pout discards shall be
monitored through the use of VTRs, observer data, VMS catch reports,
and other available information, as specified in this part. Regulated
species or ocean pout discards by vessels on a sector trip shall be
monitored pursuant to Sec. 648.87(b)(1)(v)(A).
(v) * * *
(5) AMs. Except as specified in paragraphs (a)(4)(iii)(A) through
(G) of this section, if any of the ACLs specified in paragraph (a)(4)
of this section are exceeded based upon available catch information,
the AMs specified in paragraphs (a)(5)(i) and (ii) of this section
shall take effect in the following
[[Page 26166]]
fishing year, or as soon as practicable, thereafter, once catch data
for all affected fisheries are available, as applicable.
(i) AMs for the NE multispecies commercial and recreational
fisheries. If the catch of regulated species or ocean pout by a sub-
component of the NE multispecies fishery (i.e., common pool vessels,
sector vessels, or private recreational and charter/party vessels)
exceeds the amount allocated to each sub-component, as specified in
paragraph (a)(4)(iii)(H) of this section, then the applicable a.m. for
that sub-component of the fishery shall take effect, pursuant to
paragraphs (a)(5)(i)(A) through (C) of this section. In determining the
applicability of AMs specified for a sub-component of the NE
multispecies fishery in paragraphs (a)(5)(i)(A) through (C) of this
section, the Regional Administrator shall consider available
information regarding the catch of regulated species and ocean pout by
each sub-component of the NE multispecies fishery, plus each sub-
component's share of any overage of the overall ACL for a particular
stock caused by excessive catch by vessels outside of the FMP, exempted
fisheries, or the Atlantic sea scallop fishery, as specified in this
paragraph (a)(5), as appropriate.
(A) Excessive catch by common pool vessels. If the catch of
regulated species and ocean pout by common pool vessels exceeds the
amount of the ACL specified for common pool vessels pursuant to
paragraph (a)(4)(iii)(H)(2) of this section, then the AMs described in
Sec. 648.82(n) shall take effect. Pursuant to the distribution of
ABCs/ACLs specified in paragraph (a)(4)(iii)(H)(2) of this section, for
the purposes of this paragraph (a)(5)(i)(A), the catch of each
regulated species or ocean pout stock not allocated to sectors pursuant
to Sec. 648.87(b)(1)(i)(E) (i.e., Atlantic halibut, SNE/MA winter
flounder, ocean pout, windowpane flounder, and Atlantic wolffish)
during fishing years 2010 and 2011 shall be added to the catch of such
stocks by common pool vessels to determine whether the differential DAS
counting AM described in Sec. 648.82(n)(1) shall take effect. If such
catch does not exceed the portion of the ACL specified for common pool
vessels pursuant to paragraph (a)(4)(iii)(H)(2) of this section, then
no AMs shall take effect for common pool vessels.
(B) Excessive catch by sector vessels. If the catch of regulated
species and ocean pout by sector vessels exceeds the amount of the ACL
specified for sector vessels pursuant to paragraph (a)(4)(iii)(H)(2) of
this section, then the AMs described in Sec. 648.87(b)(1)(iii) shall
take effect. For the purposes of this paragraph (a)(5)(i)(B), the catch
of regulated species and ocean pout for each sector approved pursuant
to Sec. 648.87 shall be based upon the catch of vessels participating
in each approved sector. If such catch does not exceed the portion of
the ACL specified for an individual sector pursuant to paragraph
(a)(4)(iii)(H)(2) of this section, then no AMs shall take effect for
that sector.
(C) Excessive catch by the NE multispecies recreational fishery. If
the catch of regulated species and ocean pout by private recreational
and charter/party vessels exceeds the amount of the ACL specified for
the recreational fishery pursuant to paragraph (a)(4)(iii)(H)(1) of
this section, then the AMs described in Sec. 648.89(f) shall take
effect. If such catch does not exceed the portion of the ACL specified
for the recreational fishery pursuant to paragraph (a)(4)(iii)(H)(1) of
this section, then no AMs shall take effect for the recreational
fishery.
(D) AMs for both stocks of windowpane flounder, ocean pout,
Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder. At the
end of each fishing year, NMFS shall determine if the overall ACL for
northern windowpane flounder, southern windowpane flounder, ocean pout,
Atlantic halibut, Atlantic wolffish, or SNE/MA winter flounder was
exceeded. If the overall ACL for any of these stocks is exceeded, NMFS
shall implement the appropriate AM, as specified in this paragraph
(a)(5)(i)(D), in a subsequent fishing year, consistent with the APA. If
reliable information is available, the AM shall be implemented in the
fishing year immediately following the fishing year in which the
overage occurred. Otherwise, the AM shall be implemented in the second
fishing year after the fishing year in which the overage occurred. For
example, if NMFS determined before the start of fishing year 2013 that
the overall ACL for northern windowpane flounder was exceeded by the
groundfish fishery in fishing year 2012, the applicable AM would be
implemented for fishing year 2013. If NMFS determined after the start
of fishing year 2013 that the overall ACL for northern windowpane
flounder was exceeded in fishing year 2012, the applicable AM would be
implemented for fishing year 2014. If updated catch information becomes
available subsequent to the implementation of an AM that indicates that
an ACL was not exceeded, the AM will be rescinded, consistent with the
Administrative Procedure Act.
(1) Windowpane flounder and ocean pout. If NMFS determines the
overall ACL for either stock of windowpane flounder or ocean pout is
exceeded, as described in this paragraph (a)(5)(i)(D)(1), by any amount
greater than the management uncertainty buffer, the applicable small AM
area for the stock shall be implemented, as specified in paragraph
(a)(5)(i)(D) of this section. If the overall ACL is exceeded by 21
percent or more, the applicable large AM area(s) for the stock shall be
implemented, as specified in paragraph (a)(5)(i)(D) of this section,
and the Council shall revisit the AM in a future action. The AM areas
defined below are bounded by the following coordinates, connected in
the order listed by rhumb lines, unless otherwise noted. Vessels
fishing with trawl gear in these areas may only use a haddock separator
trawl, as specified in Sec. 648.85(a)(3)(iii)(A); a Ruhle trawl, as
specified in Sec. 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as
specified in Sec. 648.84(e); or any other gear approved consistent
with the process defined in Sec. 648.85(b)(6). If an overage of the
overall ACL for SNE/MA windowpane flounder is as a result of an overage
of the sub-ACL allocated to exempted fisheries pursuant to paragraph
(a)(4)(iii)(F) of this section, the applicable AM area(s) shall be in
effect for any trawl vessel fishing with a codend mesh size of greater
than or equal to 5-inch (12.7-cm) in other, non-specified sub-
components of the fishery, including, but not limited to, exempted
fisheries that occur in Federal waters and fisheries harvesting
exempted species specified in Sec. 648.80(b)(3). If an overage of the
overall ACL for SNE/MA windowpane flounder is as a result of an overage
of the sub-ACL allocated to the groundfish fishery pursuant to
paragraph (a)(4)(iii)(H)(2) of this section, the applicable AM Area(s)
shall be in effect for any limited access NE multispecies permitted
vessel fishing on a NE multispecies DAS or sector trip. If an overage
of the overall ACL for SNE/MA windowpane flounder is as a result of
overages of both the groundfish fishery and exempted fishery sub-ACLs,
the applicable AM area(s) shall be in effect for both the groundfish
fishery and exempted fisheries. If a sub-ACL for either stock of
windowpane flounder or ocean pout is allocated to another fishery,
consistent with the process specified at Sec. 648.90(a)(4), and AMs
are otherwise developed for that fishery, the groundfish fishery AM
shall only be implemented if the sub-ACL allocated to the groundfish
fishery is exceeded (i.e., the sector and common pool catch for a
particular stock, including the common
[[Page 26167]]
pool's share of any overage of the overall ACL caused by excessive
catch by other sub-components of the fishery pursuant to Sec.
648.90(a)(5) exceeds the common pool sub-ACL) and the overall ACL is
also exceeded.
Northern Windowpane Flounder and Ocean Pout Small AM Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]10[min] 67[deg]40[min]
2........................... 41[deg]10[min] 67[deg]20[min]
3........................... 41[deg]00[min] 67[deg]20[min]
4........................... 41[deg]00[min] 67[deg]00[min]
5........................... 40[deg]50[min] 67[deg]00[min]
6........................... 40[deg]50[min] 67[deg]40[min]
1........................... 41[deg]10[min] 67[deg]40[min]
------------------------------------------------------------------------
Northern Windowpane Flounder and Ocean Pout Large AM Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]10[min] 67[deg]40[min]
2........................... 42[deg]10[min] 67[deg]20[min]
3........................... 41[deg]00[min] 67[deg]20[min]
4........................... 41[deg]00[min] 67[deg]00[min]
5........................... 40[deg]50[min] 67[deg]00[min]
6........................... 40[deg]50[min] 67[deg]40[min]
1........................... 42[deg]10[min] 67[deg]40[min]
------------------------------------------------------------------------
Southern Windowpane Flounder and Ocean Pout Small AM Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]10[min] 71[deg]30[min]
2........................... 41[deg]10[min] 71[deg]20[min]
3........................... 40[deg]50[min] 71[deg]20[min]
4........................... 40[deg]50[min] 71[deg]30[min]
1........................... 41[deg]10[min] 71[deg]30[min]
------------------------------------------------------------------------
Southern Windowpane Flounder and Ocean Pout Small AM Area 1
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]10[min] 71[deg]50[min]
2........................... 41[deg]10[min] 71[deg]10[min]
3........................... 41[deg]00[min] 71[deg]10[min]
4........................... 41[deg]00[min] 71[deg]20[min]
5........................... 40[deg]50[min] 71[deg]20[min]
6........................... 40[deg]50[min] 71[deg]50[min]
1........................... 41[deg]10[min] 71[deg]50[min]
------------------------------------------------------------------------
Southern Windowpane Flounder and Ocean Pout Large AM Area 2
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... (\1\) 73[deg]30[min]
2........................... 40[deg]30[min] 73[deg]30[min]
3........................... 40[deg]30[min] 73[deg]50[min]
4........................... 40[deg]20[min] 73[deg]50[min]
5........................... 40[deg]20[min] (\2\)
6........................... (\3\) 73[deg]58.5[min]
7........................... (\4\) 73[deg]58.5[min]
8........................... 40[deg]32.6[min] 73[deg]56.4[min]
(\5\) (\5\)
1........................... (\1\) 73[deg]30[min]
------------------------------------------------------------------------
\1\ The southern-most coastline of Long Island, NY at 73[deg]30' W.
longitude.
\2\ The eastern-most coastline of NJ at 40[deg]20' N. latitude, then
northward along the NJ coastline to Point 6.
\3\ The northern-most coastline of NJ at 73[deg]58.5' W. longitude.
\4\ The southern-most coastline of Long Island, NY at 73[deg]58.5' W.
longitude.
\5\ The approximate location of the southwest corner of the Rockaway
Peninsula, Queens, NY, then eastward along the southern-most coastline
of Long Island, NY (excluding South Oyster Bay), back to Point 1.
(2) Atlantic halibut. If NMFS determines the overall ACL for
Atlantic halibut is exceeded, as described in this paragraph
(a)(5)(i)(D)(2), by any amount greater than the management uncertainty
buffer, the applicable AM areas shall be implemented, as specified in
paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded
by 21 percent or more, the applicable large AM area(s) for the stock
shall be implemented, as specified in paragraph (a)(5)(i)(D) of this
section, and the Council shall revisit the AM in a future action. The
AM areas defined below are bounded by the following coordinates,
connected in the order listed by straight lines, unless otherwise
noted. Any vessel issued a limited access NE multispecies permit and
fishing with trawl gear in the Atlantic Halibut Trawl Gear AM Area may
only use a haddock separator trawl, as specified in Sec.
648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.
648.84(e); or any other gear approved consistent with the process
defined in Sec. 648.85(b)(6). When in effect, a limited access NE
multispecies permitted vessel with gillnet or longline gear may not
fish or be in the Atlantic Halibut Fixed Gear AM Areas, unless
transiting with its gear stowed in accordance with Sec. 648.23(b), or
such gear was approved consistent with the process defined in Sec.
648.85(b)(6). If a sub-ACL for Atlantic halibut is allocated to another
fishery, consistent with the process specified at Sec. 648.90(a)(4),
and AMs are developed for that fishery, the groundfish fishery AM shall
only be implemented if the sub-ACL allocated to the groundfish fishery
is exceeded (i.e., the sector and common pool catch for a particular
stock, including the common pool's share of any overage of the overall
ACL caused by excessive catch by other sub-components of the fishery
pursuant to Sec. 648.90(a)(5) exceeds the common pool sub-ACL) and the
overall ACL is also exceeded.
Atlantic Halibut Trawl Gear AM Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]00[min] 69[deg]20[min]
2........................... 42[deg]00[min] 68[deg]20[min]
3........................... 41[deg]30[min] 68[deg]20[min]
4........................... 41[deg]30[min] 69[deg]20[min]
------------------------------------------------------------------------
Atlantic Halibut Fixed Gear AM Area 1
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]30[min] 70[deg]20[min]
2........................... 42[deg]30[min] 70[deg]15[min]
3........................... 42[deg]20[min] 70[deg]15[min]
4........................... 42[deg]20[min] 70[deg]20[min]
------------------------------------------------------------------------
Atlantic Halibut Fixed Gear AM Area 2
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 43[deg]10[min] 69[deg]40[min]
2........................... 43[deg]10[min] 69[deg]30[min]
3........................... 43[deg]00[min] 69[deg]30[min]
4........................... 43[deg]00[min] 69[deg]40[min]
------------------------------------------------------------------------
(3) Atlantic wolffish. If NMFS determines the overall ACL for
Atlantic wolffish is exceeded, as described in this paragraph
(a)(5)(i)(D)(3), by any amount greater than the management uncertainty
buffer, the applicable AM areas shall be implemented, as specified in
paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded
by 21 percent or more, the applicable large AM area(s) for the stock
shall be implemented, as specified in paragraph (a)(5)(i)(D) of this
section, and the Council shall revisit the AM in a future action. The
AM areas defined below are bounded by the following coordinates,
connected in the order listed by straight lines, unless otherwise
noted. Any vessel issued a limited access NE multispecies permit and
fishing with trawl gear in the Atlantic Wolffish Trawl Gear AM Area may
only use a haddock separator trawl, as specified in Sec.
648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.
648.84(e); or any other gear approved consistent with the process
defined in Sec. 648.85(b)(6). When in effect, a limited access NE
multispecies permitted vessel with gillnet or longline gear may not
fish or be in the Atlantic Wolffish Fixed Gear AM Areas, unless
transiting with its gear stowed in accordance with Sec. 648.23(b), or
such gear was approved
[[Page 26168]]
consistent with the process defined in Sec. 648.85(b)(6). If a sub-ACL
for Atlantic wolffish is allocated to another fishery, consistent with
the process specified at Sec. 648.90(a)(4), and AMs are developed for
that fishery, the groundfish fishery AM shall only be implemented if
the sub-ACL allocated to the groundfish fishery is exceeded (i.e., the
sector and common pool catch for a particular stock, including the
common pool's share of any overage of the overall ACL caused by
excessive catch by other sub-components of the fishery pursuant to
Sec. 648.90(a)(5) exceeds the common pool sub-ACL) and the overall ACL
is also exceeded.
Atlantic Wolffish Trawl Gear AM Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]30[min] 70[deg]30[min]
2........................... 42[deg]30[min] 70[deg]15[min]
3........................... 42[deg]15[min] 70[deg]15[min]
4........................... 42[deg]15[min] 70[deg]10[min]
5........................... 42[deg]10[min] 70[deg]10[min]
6........................... 42[deg]10[min] 70[deg]20[min]
7........................... 42[deg]20[min] 70[deg]20[min]
8........................... 42[deg]20[min] 70[deg]30[min]
------------------------------------------------------------------------
Atlantic Wolffish Fixed Gear AM Area 1
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]40[min] 69[deg]40[min]
2........................... 41[deg]40[min] 69[deg]30[min]
3........................... 41[deg]30[min] 69[deg]30[min]
4........................... 41[deg]30[min] 69[deg]40[min]
------------------------------------------------------------------------
Atlantic Wolffish Fixed Gear AM Area 2
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 42[deg]30[min] 70[deg]20[min]
2........................... 42[deg]30[min] 70[deg]15[min]
3........................... 42[deg]20[min] 70[deg]15[min]
4........................... 42[deg]20[min] 70[deg]20[min]
------------------------------------------------------------------------
(4) SNE/MA winter flounder. If NMFS determines the overall ACL for
SNE/MA winter flounder is exceeded, as described in this paragraph
(a)(5)(i)(D)(4), by any amount greater than the management uncertainty
buffer, the applicable AM areas shall be implemented, as specified in
paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded
by 21 percent or more, the applicable large AM area(s) for the stock
shall be implemented, as specified in paragraph (a)(5)(i)(D) of this
section, and the Council shall revisit the AM in a future action. The
AM areas defined below are bounded by the following coordinates,
connected in the order listed by straight lines, unless otherwise
noted. Any vessel issued a limited access NE multispecies permit and
fishing with trawl gear in the SNE/MA Winter Flounder Trawl Gear AM
Area may only use a haddock separator trawl, as specified in Sec.
648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.
648.84(e); or any other gear approved consistent with the process
defined in Sec. 648.85(b)(6). If a sub-ACL for SNE/MA winter flounder
is allocated to another fishery, consistent with the process specified
at Sec. 648.90(a)(4), and AMs are developed for that fishery, the
groundfish fishery AM shall only be implemented if the sub-ACL
allocated to the groundfish fishery is exceeded (i.e., the sector and
common pool catch for a particular stock, including the common pool's
share of any overage of the overall ACL caused by excessive catch by
other sub-components of the fishery pursuant to Sec. 648.90(a)(5)
exceeds the common pool sub-ACL) and the overall ACL is also exceeded.
SNE/MA Winter Flounder Trawl Gear AM Area 1
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]10[min] 71[deg]40[min] (\1\)
2........................... 41[deg]10[min] 71[deg]20[min]
3........................... 41[deg]00[min] 71[deg]20[min]
4........................... 41[deg]00[min] 71[deg]40[min]
------------------------------------------------------------------------
\1\ Point 1 connects to Point 2 along 41[deg]10[min]N or the southern
coastline of Block Island, RI, whichever is further south.
SNE/MA Winter Flounder Trawl Gear AM Area 2
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]20[min] 70[deg]30[min]
2........................... 41[deg]20[min] 70[deg]20[min]
3........................... 41[deg]00[min] 70[deg]20[min]
4........................... 41[deg]00[min] 70[deg]30[min]
------------------------------------------------------------------------
SNE/MA Winter Flounder Trawl Gear AM Area 3
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]20' 69[deg]20'
2........................... 41[deg]20' 69[deg]10'
3........................... 41[deg]10' 69[deg]10'
4........................... 41[deg]10' 69[deg]20'
------------------------------------------------------------------------
SNE/MA Winter Flounder Trawl Gear AM Area 4
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
1........................... 41[deg]20' 69[deg]20'
2........................... 41[deg]20' (\1\)
3........................... (\1\) 69[deg]00'
4........................... 41[deg]00' 69[deg]00'
5........................... 41[deg]00' 69[deg]10'
6........................... 41[deg]10' 69[deg]10'
7........................... 41[deg]10' 69[deg]20'
------------------------------------------------------------------------
\1\ The southwest-facing boundary of Closed Area I.
(E) [Reserved].
(ii) AMs if the overall ACL for a regulated species or ocean pout
stock is exceeded. If the catch of any stock of regulated species or
ocean pout by vessels fishing outside of the NE multispecies fishery;
vessels fishing in state waters outside of the FMP; or vessels fishing
in exempted fisheries, as defined in this part, exceeds the sub-
component of the ACL for that stock specified for such fisheries
pursuant to paragraphs (a)(4)(iii)(A) through (G) of this section, and
the overall ACL for that stock is exceeded, then the amount of the
overage of the overall ACL for that stock due to catch from vessels
fishing outside of the NE multispecies fishery shall be distributed
among components of the NE multispecies fishery based upon each
component's share of that stock's ACL available to the NE multispecies
fishery pursuant to paragraph (a)(4)(iii)(H) of this section. Each
component's share of the ACL overage for a particular stock would be
then added to the catch of that stock by each component of the NE
multispecies fishery to determine if the resulting sum of catch of that
stock for each component of the fishery exceeds that individual
component's share of that stock's ACL available to the NE multispecies
fishery. If the total catch of that stock by any component of the NE
multispecies fishery exceeds the amount of the ACL specified for that
component of the NE multispecies fishery pursuant to paragraph
(a)(4)(iii)(H) of this section, then the AMs specified in paragraphs
(a)(5)(i)(A) through (C) of this section shall take effect, as
applicable. If the catch of any stock of regulated species or ocean
pout by vessels outside of the FMP exceeds the sub-component of the ACL
for that stock specified pursuant to paragraphs (a)(4)(iii)(A) through
(C) of this section, but the overall ACL for that stock is not
exceeded, even after consideration of the catch of that stock by other
sub-components of the fishery, then the AMs specified in this paragraph
(a)(5)(ii) shall not take effect.
(iii) AMs if the incidental catch cap for the Atlantic herring
fishery is exceeded. At the end of the NE
[[Page 26169]]
multispecies fishing year, NMFS shall evaluate Atlantic herring fishery
catch using VTR, VMS, IVR, observer data, and any other available
information to determine whether a haddock incidental catch cap has
been exceeded based upon the cumulative catch of vessels issued an
Atlantic herring permit and fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3. If the catch of haddock by all
vessels issued an Atlantic herring permit and fishing with midwater
trawl gear in Management Areas 1A, 1B, and/or 3, exceeds the amount of
the incidental catch cap specified in Sec. 648.85(d) of this section,
then the appropriate incidental catch cap shall be reduced by the
overage on a pound-for-pound basis during the following fishing year.
Any overage reductions shall be announced by the Regional Administrator
in the Federal Register, accordance with the Administrative Procedure
Act, prior to the start of the next NE multispecies fishing year after
which the overage occurred, if possible, or as soon as possible
thereafter if the overage is not determined until after the end of the
NE multispecies fishing year in which the overage occurred.
* * * * *
0
15. In Sec. 648.201, revise paragraph (a)(2) to read as follows:
Sec. 648.201 AMs and harvest controls.
* * * * *
(a) * * *
(2) When the Regional Administrator has determined that the GOM
and/or GB incidental catch cap for haddock in Sec. 648.85(d) has been
caught, no vessel issued a Federal Atlantic herring permit and fishing
with midwater trawl gear in the applicable Accountability Measure (AM)
Area, i.e., the Herring GOM Haddock AM Area or Herring GB Haddock AM
Area, as defined in Sec. 648.86(a)(3)(ii)(A)(2) and (3) of this part,
may not fish for, possess, or land herring in excess of 2,000 lb (907.2
kg) per trip in or from the applicable AM Area, unless all herring
possessed and landed by a vessel were caught outside the applicable AM
Area and the vessel complies with the gear stowage provisions specified
in Sec. 648.23(b) while transiting the applicable AM Area. Upon this
determination, the haddock possession limit is reduced to 0 lb (0 kg)
in the applicable AM area, for a vessel issued a Federal Atlantic
herring permit and fishing with midwater trawl gear or for a vessel
issued an All Areas Limited Access Herring Permit and/or an Areas 2 and
3 Limited Access Herring Permit fishing on a declared herring trip,
regardless of area fished or gear used, in the applicable AM area,
unless the vessel also possesses a Northeast multispecies permit and is
operating on a declared (consistent with Sec. 648.10(g)) Northeast
multispecies trip.
* * * * *
[FR Doc. 2013-10402 Filed 4-30-13; 4:15 pm]
BILLING CODE 3510-22-P