Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Amendment 14, 53404-53419 [2013-21052]
Agencies
[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53404-53419]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21052]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100120035-3705-02]
RIN 0648-AY26
Fisheries of the Northeastern United States; Atlantic Mackerel,
Squid, and Butterfish Fisheries; Amendment 14
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
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SUMMARY: NMFS proposes regulations to implement measures in Amendment
14 to the Atlantic Mackerel, Squid and Butterfish Management Plan. The
Mid-Atlantic Fishery Management Council developed Amendment 14 to
improve catch monitoring for the Atlantic mackerel, squid, and
butterfish fisheries and to address incidental catch of river herring
and shad through responsible management. Amendment 14 management
measures include: Revising dealer and vessel reporting requirements,
and requirements for vessel monitoring systems; increasing observer
coverage on midwater trawl mackerel and Tier 1, 2 and 3 small-mesh
bottom trawl mackerel vessels; implementing partial industry funding
for observer coverage; revising vessel requirements to improve at-sea
sampling by observers; establishing slippage caps to discourage the
discarding of catch prior to sampling by observers; and establishing a
mortality cap for river herring and shad with amounts to be set during
specifications.
DATES: Public comments must be received on or before October 11, 2013.
ADDRESSES: Copies of supporting documents used by the Mid-Atlantic
Fishery Management Council (Council), including the Environmental
Impact Statement (EIS) and Regulatory Impact Review (RIR)/Initial
Regulatory Flexibility Analysis (IRFA), are available from: Dr.
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery
Management Council, Room 2115, Federal Building, 300 South New Street,
Dover, DE 19904-6790. The EA/RIR/IRFA is accessible via the Internet at
http://www.nero.noaa.gov.
You may submit comments on this document, identified by NOAA-NMFS-
2013-0128, 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-2013-0128, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: John K. Bullard, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA
01930. Mark the outside of the envelope, ``Comments on the MSB
Amendment 14 Proposed Rule.''
Fax: (978) 281-9135, Attn: Aja Szumylo.
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 formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS, Northeast Regional Office and
by email to OIRA Submission@omb.eop.gov, or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst,
978-281-9195, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
On June 9, 2010 (75 FR 32745), the Council published a notice of
intent (NOI) to prepare an EIS for Amendment 14 to the Atlantic
mackerel, squid, and butterfish (MSB) Fishery Management Plan (FMP) to
consider measures to: Implement catch share systems for the squid
fisheries, increase fishery monitoring to determine the significance of
river herring and shad incidental catch in the MSB fisheries, and
measures to minimize bycatch and/or incidental catch of river herring
and shad. The Council subsequently conducted scoping meetings during
June 2010 to gather public comments on these issues. Based on the
comments submitted during scoping, the Council removed consideration of
catch shares for squids from Amendment 14 at its August 2010 meeting.
Following further development of Amendment 14, the Council
conducted Magnuson-Stevens Fishery Conservation and Management Act
(MSA) and National Environmental Policy Act public hearings in April
and May 2012, and, following the public comment period on the draft EIS
that ended on June 4, 2012, the Council adopted Amendment 14 on June
14, 2012. The Council submitted Amendment 14 to NOAA Fisheries Service
(NMFS) for review on February 26, 2012. Following a series of
revisions, the Council submitted a revised version of Amendment 14 to
NMFS on June 3, 2013. This action proposes management measures that
were recommended by the Council in Amendment 14. If implemented, these
management measures would:
Require weekly vessel trip reports (VTRs) for all MSB
permits, consistent with VTR provisions for other fisheries;
Require a 48-hr pre-trip notification in order to retain,
possess, or transfer more than 20,000 lb (9.07 mt) of Atlantic mackerel
(mackerel) in order to facilitate observer placement;
Require the use of vessel monitoring systems (VMS), as
well as the submission of daily VMS catch reports, for limited access
mackerel and longfin squid/butterfish moratorium permits to facility
quota monitoring;
Require a 6-hr pre-landing notification via VMS in order
to land more than 20,000 lb (9.07 mt) of mackerel, to facilitate
enforcement;
Expand dealer reporting requirements;
Increase observer coverage on limited access mackerel
vessels using midwater and small-mesh bottom trawl, and require
industry contributions of $325 per day;
Expand vessel requirements related to at-sea observer
sampling to help ensure safe sampling and improve data quality;
Establish measures to minimize the discarding of catch
before it has been made available for sampling;
Require that the Council meet formally to review the
results of the
[[Page 53405]]
Sustainable Fisheries Coalition/University of Massachusetts Dartmouth
School of Marine Science and Technology river herring and shad bycatch
avoidance project, and consider the appropriateness of developing a
framework adjustment to implement the catch avoidance strategies
suggested in the study;
Establish a mortality cap for river herring and shad to
directly control mortality in the mackerel fishery, with cap amounts
set during the development of specifications; and
Add river herring and shad mortality caps and time/area
hotspot closures to the list of measures that can be addressed via
framework adjustment.
A Notice of Availability (NOA) for Amendment 14, as submitted by
the Council for review by the Secretary of Commerce, was published in
the Federal Register on August 12, 2013 (78 FR 48852). The comment
period on Amendment 14 NOA ends on October 11, 2013. Comments submitted
on the NOA and/or this proposed rule prior to October 11, 2013, will be
considered in NMFS's decision to approve, partially approve, or
disapprove Amendment 14. NMFS will consider comments received by the
end of the comment period for this proposed rule October 15, 2013 in
its decision regarding measures to be implemented.
Proposed Measures
The proposed regulations are based on the measures in Amendment 14,
and contain many measures that would improve data collection and reduce
catch of river herring and shad and that can be administered by NMFS.
NMFS supports improvements to fishery dependent data collections,
either through increasing reporting requirements or expanding the at-
sea monitoring of the MSB fisheries. NMFS also shares the Council's
concern for reducing incidental catch and unnecessary discarding.
However, NMFS believes that a few measures in Amendment 14 may lack
adequate rationale or development by the Council, and NMFS has concerns
about the potential utility and legality of the approval and
implementation of these measures. These measures include: A dealer
reporting requirement; a cap that, if achieved, would require vessels
discarding catch before it had been sampled by observers to return to
port; and a recommended 100-percent observer coverage on midwater trawl
and Tier 1 small-mesh bottom trawl mackerel vessels, 50 percent
coverage on Tier 2 small-mesh bottom trawl mackerel vessels, and 25
percent on Tier 3 small-mesh bottom trawl mackerel vessels, with the
industry contributing $325 per day toward observer costs.
The measures NMFS has concern with in Amendment 14 are the same or
similar to measures that NMFS disapproved on July 19, 2013, in the New
England Fishery Management Council's (NEFMC) Amendment 5 to the
Atlantic Herring FMP (Amendment 5). A proposed rule to implement
Amendment 5 (78 FR 33020) was published on June 3, 2013, with a comment
period ending July 18, 2013. A summary of the comments received, NMFS's
responses to those comments, and the full rationale for the disapproval
of certain measures, will be published in the final rule implementing
Amendment 5.
This proposed rule for Amendment 14 describes potential concerns
about these measures' consistency with the MSA and other applicable
law, and summarizes the disapproval rationale for similar measures in
Amendment 5. While the measures disapproved in Amendment 5 are very
similar to measures in Amendment 14, we are considering the two actions
and their supporting analyses separately. Following public comment,
NMFS will determine if these measures in Amendment 14 can be approved
or if they must be disapproved. NMFS seeks public comments on all
proposed measures in Amendment 14, and in particular, NMFS seeks public
comment on the proposed measures for which NMFS has approvability
concerns.
Amendment 14 proposes several measures to address the catch of
river herring and shad in the mackerel fishery. River herring (the
collective term for alewife and blueback herring) and shad (American
shad and hickory shad) are anadromous species that co-occur seasonally
with mackerel and are harvested as incidental catch in the mackerel
fishery. For the purposes of this rulemaking, the term ``river herring
and shad'' refers to all four species. When river herring are
encountered in the mackerel fishery, they are either discarded at sea
(bycatch) or retained and sold as part of the mackerel catch
(incidental catch). For the purposes of this rulemaking, the terms
bycatch and incidental catch are used interchangeably.
Several sections of regulatory text affected by Amendment 14 are
also affected by Amendment 5. The proposed regulations for both actions
will present adjustments to the existing regulatory text. In the likely
event that Amendment 5 is finalized prior to Amendment 14, the
finalized regulations for Amendment 14 will be presented as
modifications to the regulations that will be implemented in Amendment
5, and will thus differ in structure, but not content, from the
regulations as presented in this proposed rule. The adjustments will be
similar to those in this proposed rule.
1. Adjustments to the Fishery Management Program
Amendment 14 would revise several existing fishery management
provisions, including dealer reporting requirements, VTR requirements,
and VMS requirements and reporting.
VTR Frequency Requirements
Currently MSB permit holders are required to submit fishing vessel
logs, known as VTRs, on a monthly basis. Amendment 14 would implement a
weekly VTR submission requirement for all MSB permits. This measure
would require that VTRs be postmarked or received by midnight of the
first Tuesday following the end of the reporting week. If an MSB permit
holder did not make a trip during a given reporting week, a vessel
representative would be required to submit a report to NMFS stating so
by midnight of the first Tuesday following the end of the reporting
week. Any fishing activity during a particular reporting week (i.e.,
starting a trip, landing, or offloading catch) would constitute fishing
during that reporting week and would eliminate the need to submit a
negative fishing report to NMFS for that reporting week. For example,
if a vessel began a fishing trip on Wednesday, but returned to port and
offloaded its catch on the following Thursday (i.e., after a trip
lasting 8 days), the VTR for the fishing trip would need to be
submitted by midnight Tuesday of the third week, but a negative report
(i.e., a ``did not fish'' report) would not be required for either
earlier week. If implemented, the weekly VTR reporting requirement
would bring MSB reporting requirements in line with other Northeast
Region fisheries, improve monitoring of directed and incidental catch,
and facilitate cross-checking with other data sources.
VMS Requirement, Daily Catch Reports and Pre-Landing Notifications
Amendment 14 would implement VMS requirements for vessels with
limited access mackerel permits and longfin squid/butterfish moratorium
permits to improve monitoring of directed and incidental catch.
Currently, vessels with these permits are not required to have VMS, to
submit catch reports, or to submit pre-landing notifications, although
many vessels already possess VMS units due to
[[Page 53406]]
requirements for other fisheries for which they hold permits.
Amendment 14 would require limited access mackerel and longfin
squid/butterfish moratorium permit holders to purchase and maintain a
VMS unit. Vessels would be required to declare into the fishery for
trips targeting mackerel or longfin squid, and would be required to
transmit location information at least every hour, 24 hours a day,
throughout the year (see existing operating requirements at Sec.
648.10(c)(1)(i)). Vessel owners may request a letter of exemption from
the NMFS Regional Administrator for permission to power down their VMS
units if the vessel is out of the water for more than 72 consecutive
hours (see existing Power-down exemption regulations at Sec.
648.10(c)(2)). Vessels that do not already have VMS units installed
would have to confirm that their VMS units were operational by
notifying the NMFS Office of Law Enforcement (OLE) (see existing
installation notification procedures at Sec. 648.10(e)(1)).
Amendment 14 would require daily VMS catch reporting for all
limited access mackerel permits and longfin squid/butterfish moratorium
permits. Daily VMS catch reports would need to include: The VTR serial
number for the current trip; month and day mackerel and/or longfin
squid were caught; and total pounds retained and total pounds
discarded. Daily mackerel and/or longfin squid VMS catch reports would
need to be submitted in 24-hr intervals for each day and would have to
be submitted by 0900 hr of the following day. Reports would be required
even if mackerel and/or longfin squid caught that day had not yet been
landed. Amendment 14 would also require that vessels landing more than
20,000 lb (9.07 mt) of mackerel submit a pre-landing notification, in
which the vessel would report the time and place of offloading. That
notification must be submitted at least 6 hr prior to crossing the VMS
demarcation line on their return trip to port, or, for a vessel that
has not fished seaward of the VMS demarcation line, at least 6 hr prior
to landing.
Dealer Reporting Requirement
During the development of Amendment 14, some stakeholders expressed
concern that MSB catch is not accounted for accurately and that there
needs to be a standardized method to determine catch. In an effort to
address those concerns, Amendment 14 would require MSB dealers to
accurately weigh all fish or use volume-to-weight conversions for all
transactions with over 2,500 lb (1.13 mt) of longfin squid or 20,000 lb
(9.07 mt) of mackerel. If catch is not sorted by species, dealers would
be required to document for each transaction how they estimate relative
species composition.
During the development of Amendment 14, NMFS identified potential
concerns with the utility of this measure. Dealers are currently
required to accurately report the weight of fish, which is obtained by
scale weights and/or volumetric estimates. Because this proposed
measure does not specify how fish are to be weighed, the measure may
not change dealer behavior and, therefore, the requirement may not lead
to any measureable change in the accuracy of catch weights reported by
dealers. Further, this measure does not provide standards for
estimating species composition. Without standards for estimating
species composition or for measuring the accuracy of the estimation
method, NMFS may be unable to evaluate the sufficiency of methods used
to estimate species composition. For these reasons, the requirement for
dealers to document the methods used to estimate species composition
may not improve the accuracy of dealer reporting.
While the measure requiring dealers to document methods used to
estimate species composition may not have direct utility in monitoring
catch in the mackerel and longfin squid fisheries, it may still inform
NMFS' and the Council's understanding of the methods used by dealers to
determine species weights. That information may aid in development of
standardized methods for purposes of future rulemaking. Furthermore,
full and accurate reporting is a permit requirement; failure to do so
could render dealer permit renewals incomplete, precluding renewal of
the dealer's permit. Therefore, there is incentive for dealers to make
reasonable efforts to document how they estimate relative species
composition, which may increase the likelihood that useful information
will be obtained as a result of this requirement.
Amendment 5 contained a dealer reporting requirement similar to the
one proposed here in Amendment 14. The Amendment 5 measure would have
required identical reporting measures for herring dealers related to
all Atlantic herring transactions. NMFS disapproved this measure in
Amendment 5 because we believe that it does not comply with National
Standard 7's requirement to minimize costs and avoid unnecessary
duplication, and the Paperwork Reduction Act's (PRA) requirement for
the utility of the measure to outweigh the additional reporting and
administrative burden on the dealers.
In light of the foregoing, NMFS seeks public comment on the extent
to which the proposed Amendment 14 measure has practical utility, as
required by the MSA and the PRA, that outweighs the additional
reporting and administrative burden on the dealers. In particular, NMFS
seeks public comment on whether and how the proposed measure would help
prevent overfishing, promote the long-term health and stability of the
mackerel and longfin squid resources, monitor the fisheries, facilitate
in-season management, or judge performance of the management regime.
2. Adjustments to At-Sea Catch Monitoring
One of the primary goals of Amendment 14 is to improve catch
monitoring in the mackerel and longfin squid fisheries. Amendment 14
would codify a number of requirements to facilitate At-Sea Catch
Monitoring, including adding a pre-trip notification for mackerel,
observer assistance requirements, and proper notice of pumping and/or
net haulback for observers in the mackerel and longfin squid fisheries.
Amendment 14 would also revise observer coverage levels and establish
new provisions, such as industry funding to pay for increased observer
coverage and measures to minimize the discarding of catch before it has
been sampled by an observer, to monitor catch in the mackerel fishery.
Pre-Trip Notification in the Mackerel Fishery
Amendment 14 would require a 48-hr pre-trip notification for all
vessels intending to retain, possess or transfer 20,000 lb (9.07 mt) or
more of Atlantic mackerel in order to facilitate observer placement.
Currently mackerel vessels have no pre-trip notifications. This measure
would assist NMFS's scheduling and deployment of observers on directed
mackerel trips, with minimal additional burden on the industry, helping
ensure that observer coverage target for the mackerel fishery is met.
The list of information that must be provided to NMFS as part of this
pre-trip observer notification is described in the proposed
regulations. If this measure is approved, details of how vessels should
contact NMFS will be provided in the small entity compliance guide. If
a vessel operator is required to notify NMFS to request an observer
before embarking on a fishing trip, but does not notify NMFS before
beginning the fishing trip, that vessel would be prohibited from
possessing, harvesting,
[[Page 53407]]
or landing more than 20,000 lb (9.07 mt) of mackerel on that trip. If a
fishing trip is cancelled, a vessel representative must notify NMFS of
the cancelled trip, even if the vessel is not selected to carry
observers. All waivers or selection notices for observer coverage would
be issued by NMFS to the vessel via VMS so the vessel would have an on-
board verification of either the observer selection or waiver.
Observer Assistance Requirements
Northeast fisheries regulations (found at 50 CFR part 648) specify
requirements for vessels carrying NMFS-approved observers, such as
providing observers with food and accommodations equivalent to those
available to the crew; allowing observers to access the vessel's
bridge, decks, and spaces used to process fish; and allowing observers
access to vessel communication and navigations systems. Amendment 14
would expand these requirements, such that vessels issued limited
access mackerel and longfin squid/butterfish moratorium permits and
carrying NMFS-approved observers must provide observers with the
following: (1) A safe sampling station adjacent to the fish deck, and a
safe method to obtain and store samples; (2) reasonable assistance to
allow observers to complete their duties; (3) advance notice when
pumping or net haulback will start and end and when sampling of the
catch may begin; and (4) visual access to net/codend or purse seine and
any of its contents after pumping has ended, including bringing the
codend and its contents aboard if possible. These measures are
anticipated to help improve at-sea catch monitoring in the mackerel and
longfin squid/butterfish fisheries by enhancing the observer's ability
to collect quality data in a safe and efficient manner. Currently many
vessels already provide this assistance.
Observer Coverage Levels
Currently, observer coverage in the MSB fisheries is determined by
the Northeast Fisheries Science Center, based on the standardized
bycatch reporting methodology (SBRM), after consultations with the
Council, and funded by NMFS. In Amendment 14, the Council recommended
increases in the observer coverage in the mackerel fishery,
specifically 100-percent observer coverage on all limited access
mackerel vessels using midwater trawl (i.e., Tiers 1, 2 and 3) and Tier
1 mackerel vessels using small-mesh bottom trawl, 50-percent coverage
on Tier 2 mackerel vessels using small-mesh bottom trawl, and 25-
percent on Tier 3 mackerel vessels using small-mesh bottom trawl. Many
stakeholders believe that this measure is necessary to accurately
determine the extent of incidental catch of river herring and shad in
the mackerel fishery. The Council recommended this measure to gather
more information on the mackerel fishery so that it may better evaluate
and, if necessary, address issues involving catch and discarding. The
increased observer coverage recommendations are coupled with a target
maximum industry contribution of $325 per day. The at-sea costs
associated with an observer in the mackerel fishery are higher than
$325 per day and, currently, there is no mechanism to allow cost-
sharing of at-sea costs between NMFS and the industry.
Throughout the development of Amendment 14, NMFS advised the
Council that Amendment 14 must identify a funding source for increased
observer coverage because NMFS's annual appropriations for observer
coverage are not guaranteed. Because Amendment 14 does not identify a
funding source to cover all of the increased costs of observer
coverage, the proposed increase in coverage levels many not be
sufficiently developed to approve at this time.
Amendment 5 contains similar observer coverage measures to those
proposed in Amendment 14. NMFS disapproved the 100-percent observer
coverage requirement and the $325 per day industry contribution in
Amendment 5 because the amendment did not identify a funding source to
cover all of the increased costs of observer coverage. The Amendment 5
measures would have required 100-percent observer coverage on Category
A and B herring vessels, with a target maximum industry contribution of
$325 per day. For both the Atlantic herring and mackerel fisheries, the
at-sea costs associated with an observer are higher than $325 per day.
The Department of Commerce (DOC) Office of General Counsel has advised
that such cost-sharing violates the Anti-Deficiency Act. Based on DOC's
advice, there is no current legal mechanism to allow cost-sharing of
at-sea costs between NMFS and the industry. Budget uncertainties
prevent NMFS from being able to commit to paying for increased observer
coverage in the herring fishery. Requiring 100-percent observer
coverage would amount to an unfunded mandate.
NMFS is working with both the Mid-Atlantic and New England Fishery
Management Councils to address the funding challenges identified in
Amendments 14 and 5. A technical team comprised of Mid-Atlantic Fishery
Management Council, New England Fishery Management Council and NMFS
staff is currently attempting to develop a legal mechanism to allow the
at-sea costs of increased observer coverage to be funded by the
industry. Even if the specified recommended observer coverage measures
in Amendment 14 cannot be approved at this time, the team will continue
to work on finding a funding solution to pay for the at-sea cost of
observer coverage in the mackerel fishery. If the technical team can
develop a legal way to fund the at-sea costs of increased observer
coverage for the mackerel fishery, a measure requiring increased
observer coverage in line with the Council's recommendations could be
implemented in a future action, subject to NMFS's budget appropriations
and other observer data collection needs in the Northeast Region and
elsewhere in the country.
Other measures proposed in Amendment 14 would help improve
monitoring in the mackerel fishery, regardless of whether the increased
observer coverage measure is approved at this time. These proposed
measures include the requirement for vessels to contact NMFS at least
48 hr in advance of a fishing trip to facilitate the placement of
observers, and observer sample station and reasonable assistance
requirements to improve an observer's ability to collect quality data
in a safe and efficient manner.
The same measure that would require increased observer coverage,
coupled with a maximum $325 contribution by the industry, would also
require that: (1) The increased observer coverage requirement would be
re-evaluated by the Council 2 years after implementation; (2) the
increased observer coverage requirement would be waived if no observers
were available; and (3) observer service provider requirements for the
Atlantic sea scallop fishery would apply to observer service providers
for the mackerel fishery. Because these additional measures appear
inseparable from the increased observer coverage requirement, their
approval or disapproval is dependent upon the approvability of the
partially industry-funded increased observer coverage measure.
Measures To Prevent Catch Discards Before Observer Sampling
Amendment 14 would require limited access mackerel and longfin
squid moratorium vessels to bring all catch aboard the vessel and make
it available for sampling by an observer. The Council recommended this
measure to
[[Page 53408]]
improve the quality of at-sea monitoring data by reducing the
discarding of unsampled catch. If catch is discarded before it has been
made available to the observer for sampling, that catch is defined as
slippage. Fish that cannot be pumped and remain in the net at the end
of pumping operations are considered operational discards and not
slipped catch. Some stakeholders believe that slippage is a serious
problem in the mackerel and longfin squid fisheries because releasing
catch before an observer can estimate its species composition
undermines accurate catch accounting.
Amendment 14 would allow catch to be slipped if: (1) Bringing catch
aboard compromises the safety of the vessel or crew; (2) mechanical
failure prevents the catch from being brought aboard; or (3) spiny
dogfish prevents the catch from being pumped aboard. If catch is
slipped, even for the exempted reasons, the vessel operator would be
required to complete a released catch affidavit within 48 hr of the end
of the fishing trip. The released catch affidavit would detail: (1) Why
catch was slipped; (2) an estimate of the quantity and species
composition of the slipped catch and any catch brought aboard during
the haul; and (3) the time and location of the slipped catch.
Additionally, Amendment 14 would establish slippage caps for the
mackerel fishery. Once there have been 10 slippage events by limited
access mackerel vessels that are carrying an observer, limited access
mackerel vessels that subsequently slip catch while carrying an
observer would be required to immediately return to port. NMFS would
track slippage events and notify the fleet once a slippage cap had been
reached. The Council recommended these slippage caps to discourage the
inappropriate use of the slippage exceptions, and to allow for some
slippage, without unduly penalizing the fleet.
Amendment 5 contained a slippage measure similar to that proposed
here in Amendment 14. The Amendment 5 measures would prohibit slippage
on limited access herring trips with an observer aboard, would require
a released catch affidavit to document slippage events, and would
require trip termination after 10 slippage events in a herring
management area by vessels using a particular gear type (including
midwater trawl, bottom trawl, and purse seine). NMFS did approve the
prohibition on slippage and the released catch affidavit requirement in
Amendment 5. However, we were concerned about the rationale for, and
legality of, the slippage caps in Amendment 5, and ultimately
disapproved that aspect of the measure. We found the slippage caps in
Amendment 5 to be inconsistent with National Standards 2 and 10. The
threshold for triggering a slippage cap (10 slippage events by area and
gear type) does not have a strong biological or administrative
justification in the supporting analysis in the EIS for Amendment 5,
which made approval of this measure inconsistent with National Standard
2. Once a slippage cap has been met, vessels that slip catch, even if
the reason for slipping was safety or mechanical failure, would be
required to return to port. In addition, the structure of this measure
in Amendment 5 raises safety concerns, implicating National Standard 10
of the Magnuson-Stevens Act, because a vessel operator may be forced to
bring catch aboard, despite dangerous conditions, to avoid returning to
port.
Throughout the development of Amendment 14, NMFS expressed concerns
with the rationale for, and legality of, the slippage caps for the
Atlantic mackerel fleet. The need for, and threshold for triggering, a
slippage cap (10 slippage events for the entire fleet) does not have a
strong biological or operational basis. From 2006-2010 approximately 26
percent (73 of 277 or 15 per year) of hauls on observed mackerel trips
(trips that caught 50 percent or more mackerel or at least 100,000 lb
(45.34 mt) of mackerel) had some unobserved catch. Hauls may be
unobserved for a variety of reasons--for example, transfer of catch to
another vessel without an observer, observers not being on deck to
sample a given haul, or hauls released from the net while still in the
water. The estimate of 15 unobserved hauls per year would thus be an
upper bound on slippage events. Once a slippage cap has been met,
vessels that slip catch with an observer aboard for reasons other than
safety, mechanical failure, or spiny dogfish in the pump would be
required to return to port. Vessels could continue fishing following
slippage events 1 thorough 10, but must return to port following the
11th slippage event, regardless of the vessel's role in the first 10
slippage events. The Council's analysis noted that while documents
slippage events are relatively infrequent, increases above the
estimated 15 unobserved hauls per year could compromise observer data
because large quantities of fish can be caught in a single tow.
However, the Council's analysis does not provide sufficient rationale
for why it is biologically or operationally acceptable to allow the
fleet 10 un-exempted slippage events prior to triggering the trip
termination requirement.
The measures to minimize slippage are based on the sampling
requirements for midwater trawl vessels fishing in Groundfish Closed
Area I. However, there are important differences between these
measures. Under the Closed Area I requirements, if midwater trawl
vessels slip catch, they are allowed to continue fishing, but they must
leave Closed Area I for the remainder of that trip. The requirement to
leave Closed Area I is less punitive than the proposed requirement to
return to port. Additionally, because the consequences of slipping
catch apply uniformly to all vessels under the Closed Area I
requirements, inequality among the fleet is not an issue for the Closed
Area I requirements, like it appears to be for the proposed slippage
caps.
In 2010, the Northeast Fisheries Observer Program (NEFOP) revised
the training curriculum for observers deployed on herring vessels to
focus on effective sampling in high-volume fisheries. NEFOP also
developed a discard log to collect detailed information on discards in
the high-volume fisheries, including slippage, such as why catch was
discarded, the estimated amount of discarded catch, and the estimated
composition of discarded catch. Recent slippage data collected by
observers indicate that information about these events, and the amount
and composition of fish that are slipped, has improved, and that the
number of slippage events has declined. Given NEFOP's recent training
changes and its addition of a discard log, NMFS believes that observer
data on slipped catch, rather than released catch affidavits, provide
the best information to account for discards. However, there is still a
compliance benefit to requiring a released catch affidavit because it
would provide enforcement with a sworn statement regarding the
operator's decisions and may help to understand why slippage occurs.
In summary, NMFS seeks public comment on whether there is a
biological need for the proposed slippage cap, whether the trigger (10
slippage events for the entire mackerel fleet) for the proposed
slippage cap has adequate justification, and whether the requirement to
return to port would be inequitable. After evaluating public comment,
NMFS will determine whether the proposed slippage cap can be approved.
Even if the slippage cap must be disapproved, the ongoing data
collection by NEFOP and the released catch affidavit requirement would
still allow for improved monitoring in the mackerel fishery, increased
information
[[Page 53409]]
regarding discards, and an incentive to minimize the discarding of
unsampled catch.
Lastly, Amendment 14 proposes that a number of measures related to
at-sea sampling could be modified through the specifications process,
including: (1) The observer provisions to maximize sampling; (2) the
industry contribution amount for at-sea observer coverage; (3)
exceptions for the requirement to pump/haul aboard all fish from net
for inspection by at-sea observers; and (4) trip termination
requirements for mackerel vessels.
3. Measures To Address River Herring and Shad Interactions
River herring and shad are managed by the Atlantic States Marine
Fisheries Commission (ASMFC) and individual states. According to the
most recent ASMFC stock assessments for river herring (May 2012) and
shad (August 2007), river herring and shad populations have declined
from historic levels and many factors will need to be addressed to
allow their recovery, including fishing (in both state and Federal
waters), river passageways, water quality, predation, and climate
change. In an effort to aid in the recovery of depleted or declining
stocks, the ASMFC, in cooperation with individual states, prohibited
state waters commercial and recreational fisheries that did not have
approved sustainable fisheries management plans, effective January 1,
2012. NMFS recently completed a comprehensive review of the status of
river herring (but not shad) in response to a petition submitted by the
Natural Resources Defense Council requesting that we list alewife
(Alosa pseudoharengus) and blueback herring (Alosa aestivalis) as
threatened under the Endangered Species Act throughout all or a
significant portion of their range or as specific distinct population
segments identified in the petition. Based on the best scientific and
commercial information available, we determined that listing alewife as
threatened or endangered under the ESA is not warranted at this time
(August 12, 2013; 78 FR 48944).
Amendment 14 would establish a mortality cap on river herring and
shad in the mackerel fishery, where the mackerel fishery would close
once it has been determined to cause a certain amount of river herring
and/or shad mortality. Based on the results of the ASMFC's assessments
for river herring and shad, data do not appear to be robust enough to
determine a biologically based catch cap for these species, and/or the
potential effects on these populations if a catch cap is implemented on
a coast-wide scale. Nevertheless, the Council believes that capping the
allowed level of river herring and shad catch in the mackerel fishery
would provide a strong incentive for the industry to avoid river
herring and shad, and would help to minimize encounters with these
species.
The likelihood of a mackerel closure related to the river herring
and shad cap would depend on the value the Council proposes for the cap
for a given year, the availability of mackerel for that year, and the
realized incidental catch of river herring and shad for that year. The
analysis presented in Amendment 14 estimated that total ocean fishing
mortality (all gear types and fisheries) ranged from 244 to 672 mt for
both river herring species (2006-2010), and 47 to 70 mt for both shad
species (2007-2010). To qualitatively evaluate the biological and
economic impacts of a river herring and/or shad cap, Amendment 14
presented an analysis in which the cap was set equal to 35 percent of
total ocean fishing mortality for river herring, and 12 percent of
total ocean fishing mortality for shad. These percentages correspond to
the estimated amount of mid-water trawl mortality for these species in
Quarter 1 of the fishing year, which largely encompasses mackerel
fishing activity. The proposed mortality cap on river herring and shad
would use a similar method to that used for the butterfish mortality
cap in the longfin squid fishery, where the ratio of river herring and
shad caught to total catch on observed hauls would be applied to all
catch. The analysis in Amendment 14 applies this methodology to mimic
low, medium, and high rates of river herring and shad encounters on
mackerel trips. If the mackerel fishery had been able to harvest the
entire 115,000-mt mackerel quota in any year from 2006 to 2010, a river
herring cap equal to 35 percent of total river herring ocean catch
would have resulted in closures of the mackerel fishery in 3 of the
years if there were low river herring encounter rates, and all of the
years if there were medium and high river herring encounter rates.
Similarly, a shad cap equal to 12 percent of the total shad ocean catch
would not have caused a closure of the mackerel fishery in any of the
years if there were low shad encounter rates, but would have resulted
in a closure in all of the years with medium and high shad encounter
rates. The analysis concluded that, because river herring and shad
catch vary substantially from year to year, the realized combination of
these factors may cause an early closure of the mackerel fishery in
some years, and in other years may not result in a closure at all.
While the concept of the cap and general methodology are analyzed
in Amendment 14, the Council's proposal deferred the establishment of
the actual cap amount and other logistical details of the cap (e.g.,
the closure threshold and post-closure possession limit) to the MSB
specifications process for the 2014 fishing year. The process for 2014
MSB specifications began in May 2013 with a MSB Monitoring Committee
meeting to develop technical recommendations on the cap level and any
necessary management measures. At its June 2013 meeting, the Council
selected a combined catch cap for river herring and shad of 236 mt, a
closure threshold of 95 percent, and a post-closure incidental trip
limit of 20,000 lb (9.07 mt). The Council is finalizing its analysis of
these measures and will submit its final recommendation to NMFS shortly
as part of the 2014 MSB specifications package. Because the details of
the cap are being fully analyzed in a separate action, NMFS only
requests comments in this rulemaking on the concept of using a catch
cap in the mackerel fishery to limit encounters with river herring and
shad. The public will be given the opportunity to comment on the actual
proposed cap level and management measures related to the cap in the
proposed rule for 2014 MSB specifications. Secretarial approval of both
Amendment 14 and the 2014 MSB specifications are necessary for
implementation of the river herring and shad caps in the mackerel
fishery, which is targeted for the start of the 2014 fishing year
(January 1, 2014).
The New England Fishery Management Council is also considering
establishing a catch cap for river herring and shad in the Atlantic
herring fishery in Framework 3 to the Atlantic Herring FMP. Due to the
mixed nature of the herring and mackerel fisheries, especially during
the period from January through April, the potential for the greatest
river herring catch reduction would come from the implementation of a
joint river herring catch and shad cap for both the fisheries. On May
23, 2013, the New England and Mid-Atlantic Councils' technical teams
for the herring and mackerel fisheries met to begin development of the
catch caps. In addition, at its June 2013 meeting, the New England
Council discussed some details of the cap, including the possible
division of the cap into areas to match the activity of the herring
fishery by
[[Page 53410]]
season. The New England Council is working towards a target of
implementing the cap in mid-2014.
Amendment 14 would establish a mechanism to develop, evaluate, and
consider regulatory requirements for a river herring bycatch avoidance
strategy in small-mesh pelagic fisheries. The river herring bycatch
avoidance strategy would be developed and evaluated by the Council, in
cooperation with participants in the mackerel fishery, specifically the
Sustainable Fisheries Coalition (SFC); the Massachusetts Division of
Marine Fisheries (MA DMF); and the University of Massachusetts
Dartmouth School of Marine Science and Technology (SMAST). This measure
is based on the existing river herring bycatch avoidance program
involving SFC, MA DMF, and SMAST. This voluntary program seeks to
reduce river herring and shad bycatch by working within current
fisheries management programs, without the need for additional
regulatory requirements. The river herring bycatch avoidance program
includes portside sampling, real-time communication with the SFC on
river herring distribution and encounters in the herring fishery, and
data collection to evaluate if oceanographic features may predict high
rates of river herring encounters.
Amendment 14 would require that, within 6 months of completion of
the existing SFC/MA DMF/SMAST river herring bycatch avoidance project,
the Council would review and evaluate the results from the river
herring bycatch avoidance project, and consider a framework adjustment
to the MSB FMP to establish river herring bycatch avoidance measures.
Measures that may be considered as part of the framework adjustment
include: (1) Mechanisms to track herring fleet activity, report bycatch
events, and notify the herring fleet of encounters with river herring;
(2) the utility of test tows to determine the extent of river herring
bycatch in a particular area; (3) the threshold for river herring
bycatch that would trigger the need for vessels to be alerted and move
out of a given area; and (4) the distance and/or time that vessels
would be required to move from an area.
The Council considered other measures to address river herring and
shad bycatch in Amendment 14, including closed areas. Because the
seasonal and inter-annual distribution of river herring and shad is
highly variable in time and space, the Council determined that the most
effective measures in Amendment 14 to address river herring and shad
bycatch would be those that increase monitoring, bycatch accounting,
and promote cooperative efforts with the industry to minimize bycatch
to the extent practicable. In order to streamline the regulatory
process necessary to adjust the river herring and shad mortality caps,
or enact time area management for river herring and shad, should
scientific information to support such management measures become
available, the Council proposed that Amendment 14 would add river
herring and shad catch caps and time/area closures to the list of
measures that can be addressed via framework adjustment.
4. Adding Individual River Herring and Shad Species as Stocks in the
MSB Fishery
Initially, the Council considered alternatives in Amendment 14
intended to add, in a future action, alewife, blueback herring,
American shad, and/or hickory shad as stocks in the MSB FMP. Instead,
the Council decided that it would initiate a future Council amendment
that would consider adding these as stocks in the fishery and analyze
all of the MSA provisions (i.e., various management reference points,
description and delineation of essential fish habitat (EFH), etc.), and
initiated Amendment 15 to MSB FMP to explore the need for conservation
and management of these species more thoroughly. Scoping for MSB
Amendment 15 began in October 2012 (77 FR 65867), and the technical
team for the MSB FMP is currently working to develop this action.
Classification
Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant
Administrator has determined that this proposed rule is consistent with
Amendment 14 to the MSB FMP, other provisions of the MSA, and other
applicable law, subject to further consideration after public comment
and the concerns noted in the preamble.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Council prepared a final environmental impact statement (FEIS)
for Amendment 14. A notice of availability for the FEIS was published
on August 16, 2013 (78 FR 50054). The FEIS describes the impacts of the
proposed measures on the environment. Proposed revisions to fishery
management program measures, including dealer and vessel reporting
requirements and trip notification, are expected to improve catch
monitoring in the MSB fisheries with positive biological impacts to the
MSB fisheries and minimal negative economic impacts on human
communities. Proposed increases to observer coverage requirements,
measures to improve at-sea sampling by observers, and measures to
minimize discarding of catch before it has been sampled by observers
are also expected to improve catch monitoring and have positive
biological impacts on the MSB fisheries. The economic impacts of these
proposed measures on human communities are varied, but negative
economic impacts may be substantial compared to the status quo.
Proposed measures to address bycatch to the extent practicable are
expected to have positive biological impacts and moderate negative
impacts on human communities. Lastly, all proposed measures are
expected to have positive biological impacts on non-target species and
neutral impacts on habitat and protected resources.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
On June 20, 2013, the Small Business Administration (SBA) issued a
final rule revising the small business size standards for several
industries effective July 22, 2013 (78 FR 37398). The rule increased
the size standard for Finfish Fishing from $4.0 to $19.0 million,
Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing
from $4.0 to $7.0 million. NMFS has reviewed the analyses prepared for
this action in light of the new size standards. Under the former, lower
size standards, all entities subject to this action were considered
small entities, thus they all would continue to be considered small
under the new standards. NMFS has determined that the new size
standards do not affect the analyses prepared for this action.
The proposed measures in Amendment 14 could affect any vessel
holding an active Federal permit to fish for Atlantic mackerel, longfin
squid, Illex squid, or butterfish. All of the potentially affected
businesses are considered small entities under the standards described
in NMFS guidelines, because they have gross receipts that do not exceed
$19 million annually. In 2012, 1,835 commercial vessels possessed
Atlantic mackerel permits (132 limited access permits and 1,703 open
access permits), 329 vessels possessed longfin squid/butterfish
moratorium permits, 72 vessels possessed Illex permits, 1,578 vessels
possessed incidental squid/butterfish permits, and 705 vessels
possessed squid/mackerel/butterfish party/charter permits. Many vessels
participate in more than one of these fisheries;
[[Page 53411]]
therefore, permit numbers are not additive.
Available data indicate that no single fishing entity earned more
than $19 million annually. Although there are likely to be entities
that, based on rules of affiliation, would qualify as large business
entities, due to lack of reliable ownership affiliation data NMFS
cannot apply the business size standard at this time. NMFS is currently
compiling data on vessel ownership that should permit a more refined
assessment and determination of the number of large and small entities
for future actions. For this action, since available data are not
adequate to identify affiliated vessels, each operating unit is
considered a small entity for purposes of the RFA, and, therefore,
there is no differential impact between small and large entities.
Therefore, there are no disproportionate economic impacts on small
entities. Section 6.7 in Amendment 14 describes the vessels, key ports,
and revenue information for the MSB fisheries; therefore, that
information is not repeated here.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
Minimizing Significant Economic Impacts on Small Entities
This proposed rule contains collection-of-information requirements
subject to review and approval by the Office of Management and Budget
(OMB) under the PRA. The new requirements, which are described in
detail in this preamble, have been submitted to OMB for approval as a
new collection.
Amendment 14 would increase VTR reporting submission frequency for
all MSB permit holders from monthly to weekly. MSB permit holders
currently submit 12 VTRs per year, so the additional cost of submitting
VTRs on a weekly basis is $18. This cost was calculated by multiplying
40 (52 weeks in a year minus 12 (number of monthly reports)) by $0.46
to equal $18. The VTR is estimated to take 5 min to complete. Therefore
the total annual burden estimate of weekly VTRs is $18, and 3 hr and 20
min.
This action proposes that limited access mackerel and longfin
squid/butterfish moratorium permit holders purchase and maintain a VMS.
Because other Northeast Federal permits require vessels to maintain a
VMS, it is estimated that only 80 vessels do not already have a VMS.
The average cost of purchasing and installing a VMS is $3,400, the VMS
certification form takes an estimated 5 min to complete and costs $0.46
to mail, and the call to confirm a VMS unit takes an estimated 5 min to
complete and costs $1. The average cost of maintaining a VMS is $600
per year. Northeast regulations require VMS activity declarations and
automated polling of VMS units to collect position data. Each activity
declaration takes an estimated 5 min to complete and costs $0.50 to
transmit. If a longfin squid/butterfish moratorium permit holder takes
22 trips per year, the burden estimate for activity declarations would
be 1 hr and 50 min, and $11. If a limited access mackerel permit holder
takes 8 trips per year, the burden estimate for activity declarations
would be 40 min and $4. Each automated polling transmission costs $0.06
and a vessel is polled once per hour every day of the year. The annual
estimated cost associated with polling is $526. Vessels may request a
power-down exemption to stop position transmission under certain
provisions, as described in the preamble. The form to request a power
down exemption letter takes 5 min to complete, and costs $0.46 to mail.
If each vessel submits a power down exemption request 2 times a year,
the total estimated burden is 10 min and $1. In summary, the total
annual burden estimate for a vessel to purchase and maintain a VMS
would be 2 hr 10 min and $4,540 for a longfin squid/butterfish
moratorium permit holder, and 1 hr and $4,533 for a limited access
mackerel permit holder.
Amendment 14 would require that limited access mackerel and longfin
squid/butterfish moratorium permit holders submit daily VMS reports.
The cost of transmitting a catch report via VMS is $0.60 per
transmission, and it is estimated to take 5 min to complete. If a
longfin squid/butterfish moratorium permit holder takes 22 trips per
year and each trip lasts an average of 2 days, the burden estimate for
activity declarations would be 1 hr and 50 min, and $14. If a limited
access mackerel permit holder takes 8 trips per year and each trip
lasts an average of 3 days, the burden estimate for activity
declarations would be 40 min, and $5.
This action would require limited access mackerel vessels to submit
a pre-landing notification to NMFS OLE via VMS 6 hr prior to landing.
Each VMS pre-landing notification is estimated to take 5 min to
complete and cost $1. Limited access mackerel permit holders are
estimated to take 8 trip per year, so the total annual burden estimate
is 40 min, and $8.
Amendment 14 would require MSB dealers to document, for each
transaction, how they estimate the relative composition of catch, if
catch is not sorted by species. This requirement would apply to all
transactions with over 20,000 lb (9.07 mt) of mackerel, and all
transactions with over 2,500 lb (1.13 mt) of longfin squid, and would
be in addition to existing dealer reporting requirements. The
additional reporting burden of documenting relative species composition
of each of the above transactions is expected to take 5 min per
transaction. In July 2013, there were 214 entities that held MSB
permits. Dealers make an average of 1,700 mackerel or longfin squid
transactions meeting the above descriptions per year. Therefore, the
annual burden associated with documenting relative species composition
for each MSB dealer is estimated to be 142 hr.
Amendment 14 would increase the reporting burden for measures
designed to improve at-sea sampling by NMFS-approved observers. Limited
access mackerel vessels would be required to notify NMFS to request an
observer at least 48 hr prior to beginning a trip where they intend to
land over 20,000 lb (9.07 mt) of mackerel. The phone call is estimated
to take 5 min to complete and is free. If a vessel has already
contacted NMFS to request an observer and then decides to cancel that
fishing trip, Amendment 14 would require that vessel to notify NMFS of
the trip cancellation. The call to notify NMFS of a cancelled trip is
estimated to take 1 min and is free. If a vessel takes an estimated 8
trips per year, the total annual reporting burden associated with pre-
trip observer notification would be 40 min.
Amendment 14 would require a released catch affidavit for limited
access mackerel and longfin squid/butterfish moratorium permit holders
that discard catch before it had been made available to an observer for
sampling (slipped catch). The reporting burden for completion of the
released catch affidavit is estimated to average 5 min. The cost
associated with the affidavit is the postage to mail the form to NMFS
($0.46). The affidavit requirement would affect an estimated 312
longfin squid/butterfish moratorium permit holders, and 132 limited
access mackerel permit holders. If the longfin squid/butterfish
moratorium permit holders slipped catch once per trip with an observer
aboard, and took an estimated 22 trips per year, the total annual
reporting burden for the released catch affidavit would be 1 hr 50 min
and $10. If the limited access mackerel permit holders slipped catch
once per trip with an observer aboard, and took an estimated 8 trips
per year, the total annual reporting burden for the released catch
affidavit would be 40 min, and $4.
[[Page 53412]]
Amendment 14 would require 100-percent observer coverage on all
limited access mackerel trips using mid-water trawl and Tier 1 trips
using small-mesh bottom trawl; 50-percent coverage on Tier 2 mackerel
trips using small-mesh bottom trawl; and 25-percent coverage on Tier 3
mackerel trips using small-mesh bottom trawl. There are an estimated
132 limited access mackerel permit holders that may use midwater trawl
to target mackerel. Vessels go on an average of 6 midwater trawl trips
per year and spend an average of 3 days at sea. If these permit-holders
are responsible for paying for 100-percent of coverage on a total of 18
days at sea per year, the total annual estimated cost would be $5,850.
There are an estimated 30 Tier 1 vessels that spend an average of 16
days at sea per year on small-mesh bottom trawl trips, and if these
vessels were responsible for paying for 100 percent of the cost of
coverage the total annual estimated cost would be $5,200. There are an
estimated 23 Tier 2 vessels that spend an average of 16 days at sea per
year on small-mesh bottom trawl mackerel trips, and if these vessels
were responsible for paying for 50 percent of the cost of coverage, the
total annual estimated cost would be $2,600. There are an estimated 79
Tier 3 vessels that spend an average of 16 days at sea per year on
small-mesh bottom trawl mackerel trips, and if these vessels were
responsible for paying for 25 percent of the cost of coverage, the
total annual estimated cost would be $1,300.
Under the proposed industry-funded observer program, limited access
mackerel permit holders would be required to contact an observer
service provider to request an observer. An estimated 132 vessels would
be subject to this requirement. If those vessels took an estimated 8
trips per year and the call to the observer service provider took an
estimated 10 min to complete and cost $1, the annual reporting burden
of the proposed notification requirement is estimated to be 1 hr 20
min, and $8. If an observer service provider had no observer available,
limited access mackerel permit holders would be required to notify NMFS
to request an observer waiver. The likelihood of an observer not being
available is anticipated to be low. Therefore, if on two occasions the
vessels needed to contact NMFS to request a waiver, and the call took
an estimated 5 min to complete and was free, the annual reporting
burden to request a waiver is estimated to be 10 min.
NMFS expects that additional observer service providers may apply
for certification under the observer certification procedures found at
Sec. 648.11(h). NMFS estimates that three additional providers may
apply for certification. In addition, existing providers, and the three
potential additional providers, would be required to submit additional
reports and information required of observer service providers as part
of their certification. NMFS expects that six providers would be
subject to these new requirements. Observer service providers must
comply with the following requirements, submitted via email, fax, or
postal service: Submit applications for approval as an observer service
provider; formally request observer training by NEFOP; submit observer
deployment reports and biological samples; give notification of whether
a vessel must carry an observer within 24 hr of the vessel owner's
notification of a prospective trip; maintain an updated contact list of
all observers that includes the observer identification number;
observer's name mailing address, email address, phone numbers,
homeports or fisheries/trip types assigned, and whether or not the
observer is ``in service.'' The regulations would also require observer
service providers to submit any outreach materials, such as
informational pamphlets, payment notification, and descriptions of
observer duties, as well as all contracts between the service provider
and entities requiring observer services for review to NMFS. Observer
service providers also have the option to respond to application
denials, and submit a rebuttal in response to a pending removal from
the list of approved observer providers. NMFS expects that all of these
reporting requirements combined are expected to take 1,734 hr of
response time per year, for a total annual cost of $25,363 for the
affected observer providers. The following table provides the detailed
time and cost information for each response item.
----------------------------------------------------------------------------------------------------------------
Time Total
Number of Total (hours) time Cost per Annual
Observer provider requirements entities Number of per burden response cost
items response (hours)
----------------------------------------------------------------------------------------------------------------
Observer deployment report by email........... 6 1,500 0.167 251 $0 $0
Observer availability report by email......... 6 900 0.167 150 0 0
Safety refusals by email...................... 6 150 0.5 75 0 0
Raw observer data by express mail............. 6 1,500 0.083 125 13 19,500
Observer debriefing........................... 6 420 2 840 12 5,040
Other reports................................. 6 210 0.5 105 0 0
Biological samples............................ 6 1,500 0.083 125 0.50 750
New application to be a service provider...... 3 3 10 30 0.44 1
Applicant response to denial.................. 1 1 10 10 0 0
Request for observer training................. 3 6 0.5 3 1.80 11
Rebuttal of pending removal from list of 1 1 8 8 0 0
approved observer providers..................
Observer contact list updates................. 3 36 0.083 3 0 0
Observer availability updates................. 3 36 0.017 1 0 0
Service provider material submissions......... 6 12 0.5 6 2.50 30
Service provider contracts.................... 6 12 0.5 6 2.50 30
-----------------------------------------------------------------
Total..................................... ......... ......... ......... 1,736 ......... 25,363
----------------------------------------------------------------------------------------------------------------
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the
[[Page 53413]]
collection of information to the Regional Administrator (see
ADDRESSES), and email to Submission@omb.eop.gov">OIRA_Submission@omb.eop.gov or fax to 202-
395-7285.
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.
The Council prepared an IRFA, as required by section 603 of the
RFA. The IRFA describes the economic impact this proposed rule, if
adopted, would have on small entities. A description of the action, why
it is being considered, and the legal basis for this action are
contained at the beginning of this section in the preamble and in the
SUMMARY. A summary of the analysis follows. A copy of this analysis is
available from the Council or NMFS (see ADDRESSES) or via the Internet
at http://www.nero.noaa.gov.
Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives
1. Adjustments to the Fishery Management Program
Amendment 14 proposes to revise several existing fishery management
provisions, including VTR and VMS requirements, and dealer reporting
requirements, to better administer the MSB fisheries. The proposed
action (Alternative 1c in the FEIS) would require all MSB permit
holders to submit VTRs on a weekly basis. The no action (alternative
1a) would have maintained monthly reporting requirements for all MSB
permit holders, and two additional alternatives would have instituted
weekly reporting for just mackerel permit holders (alternative 1bMack)
or longfin squid/butterfish permit holders (alternative 1bLong). Weekly
VTRs would cost an additional $18 per year compared to status quo, but
any permit holders already submit weekly VTRs related to other
Northeast Region permits. The proposed action could improve data for
quota monitoring, and bring VTR requirements in line with those for
other Northeast Region permits.
The proposed action requires VMS for limited access mackerel and
longfin squid/butterfish moratorium permit holders (alternatives 1eMack
and 1eLong), requires trip declarations and daily VMS catch reports for
these permit holders (alternatives 1fMack and 1fLong), and requires a
pre-landing notifications via VMS in order to land more than 20,000 lb
(9.07 mt) of mackerel (alternative 1gMack). The no action alternative
(alternative 1a) would not impose VMS requirements for these permit
holders. As with the VTR requirements, many limited access mackerel and
longfin squid/butterfish moratorium permit holders already have VMS
related to other Northeast Region permits. For permit holders obtaining
a new VMS, the proposed VMS requirements would cost roughly $4,500 for
the first year of operation. The FEIS for Amendment 14 discussed that
the economic impacts of these reporting requirements is mixed compared
to status quo. While short-term operating costs for these fishing
vessels is increased compared to status quo, these measures may have
long-term positive impacts if they result in less uncertainty and,
ultimately, additional harvest being made available to MSB fishery
participants.
Amendment 14 would require that MSB dealers weigh all landings
related to mackerel transactions over 20,000 lb (9.07 mt) (alternative
2d), and all longfin squid transactions over 2,500 lb (1.13 mt)
(alternative 2f), and if these transactions were not sorted by species,
would be required to document, with each transaction, how they
estimated the relative composition of catch. Dealers would be permitted
to use volume-to-weight conversions if they were not able to weigh
landings (alternative 2g). Dealers currently report the weight of fish,
obtained by scale weights and/or volumetric estimates. Because the
proposed action does not specify how fish are to be weighed, the
proposed action is not anticipated to change dealer behavior, and,
therefore, is expected to have neutral impacts in comparison to the no
action alternative. Amendment 14 considered four alternatives to the
proposed action: The no action alternative; and alternatives 2b, 2c and
2e. Alternative 2b would require that a vessel confirm MSB dealer
reports for mackerel landings over 20,000 lb (9.07 mt), Illex squid
landings over 10,000 lb (4.53 mt), and longfin squid landings over
2,500 lb (1.13 mt). Alternatives 2c and 2e are similar to the proposed
alternative in that they would require dealers to weigh all landings
related to mackerel transactions over 20,000 lb (9.07 mt) (alternative
2c), and all longfin squid transactions over 2,500 lb (1.13 mt)
(alternative 2e), but would have required that relative species
composition be documented annually instead of at each transaction.
Overall, relative to the no action alternative, the proposed action and
Alternatives 2c and 2e may have low negative impacts on dealers due to
the regulatory burden of documenting how species composition is
estimated. In comparison, Alternative 2b may have a low positive impact
on fishery participants, despite an increased regulatory burden, if it
minimizes any lost revenue due to data errors in the dealer reports
and/or the tracking of MSB catch.
2. Adjustments to At-Sea Catch Monitoring
Amendment 14 would require a 48-hr pre-trip notification for all
vessels intending to retain, possess or transfer 20,000 lb (9.07 mt) or
more of Atlantic mackerel in order to facilitate observer placement
(alternative 1d48). In addition to the no action alternative
(alternative 1a), Amendment 14 also considered requiring a 72-hr pre-
trip notification requirement (alternative 1d72). Compared to the no
action alternative, both action alternatives may mean that fishermen
are not able to embark on fishing trips on short notice, especially if
they are selected to take an observer. The proposed alternative would,
however, improve observer placement compared to the no action
alternative.
Amendment 14 recommends increases in the observer coverage in the
mackerel fishery, specifically 100-percent observer coverage on all
(Tiers 1, 2 and 3) midwater mackerel trawl vessels (alternative 5b4)
and Tier 1 small-mesh bottom trawl mackerel vessels, 50-percent
coverage on Tier 2 small-mesh bottom trawl mackerel vessels, and 25-
percent on Tier 3 small-mesh bottom trawl mackerel vessels (alternative
5c4), with an industry contribution of $325 per day (alternative 5f).
Amendment 14 considers four alternatives to the proposed coverage level
recommendations: The no action alternative (alternative 5a); 25-percent
(alternative 5b1), 50-percent (alternative 5b2), and 75-percent
(alternative 5b3) coverage levels for all (Tiers 1, 2 and 3) mid-water
trawl mackerel vessels; 25-percent (alternative 5c1), 50-percent
(alternative 5c2), and 75-percent (alternative 5c3) coverage levels for
all (Tiers 1, 2 and 3) small-mesh bottom trawl mackerel vessels; and
coverage levels necessary to achieve target coefficients of variation
for river herring bycatch using midwater trawl gear (alternatives 5e1
and 5e2) and small-mesh bottom trawl gear (5e3 and 5e4). Additionally,
Amendment 14 considered a phased-in industry funding option (5g) that
would shift the cost of the at-sea portion of observer coverage from
NMFS to the industry over a 4-yr period. The specific coverage levels
under the no action alternative and the 5e alternatives are unknown at
[[Page 53414]]
this time, because they would depend on an analysis of fishery data
from previous years, but coverage levels under these alternatives are
expected to be less than 100 percent. Compared to the no action
alternative, the proposed $325 contribution per day would increase
daily trip costs by 9 percent for single midwater trawl mackerel
vessels, and 12 percent for paired midwater trawl mackerel vessels, and
20 percent for small-mesh bottom trawl vessels. In general, higher
coverage levels, which would result in higher increases in daily costs
for fishery participants, would have a negative economic impact on
fishery participants, potentially resulting in less effort and lower
catch. In the long-term, increased monitoring and improved data
collections for the mackerel fishery may translate to improved
management of the mackerel fishery that would benefit fishery-related
businesses and communities.
Amendment 14 would require limited access mackerel and longfin
squid/butterfish moratorium permit holders to bring all catch aboard
the vessel and make it available for sampling by an observer
(alternative 3j). Catch slipped before being sampled by an observer
would count against a slippage cap and require that a released catch
affidavit be completed. If a slippage cap is reached, a vessel would be
required to return to port immediately following any additional
slippage events (alternative 3l). Amendment 14 considered the no action
alternative, and nine other alternatives to the proposed action. The no
action alternative would not establish slippage prohibitions, released
catch affidavit requirements, slippage caps, or trip termination
requirements. The other non-selected alternatives include various
elements of the proposed action, including a requirement for mackerel
and longfin squid permit holders to complete a released catch affidavit
(alternative 3e), a requirement to prohibit mackerel (alternative 3f)
and longfin squid (alternative 3g) permit holders from releasing
discards before they are bought aboard for sampling, trip termination
requirements after 1 (alternative 3h), 2 (alternative 3i), 5
(alternative 3k), or 10 (alternative 3n) fleet-wide slipped hauls on
mackerel or longfin squid vessels carrying observers, individual
slippage caps resulting in trip termination (alternative 3p), and a
requirement that vessels that terminate a trip would have to take
observers on the immediate subsequent trip (alternative 3o).
Negative impacts associated with all of these alternatives include
increased time spent pumping fish aboard the vessel to be sampled by an
observer, potential decrease in vessel safety during poor operating
conditions, and the administrative burden of completing a released
catch affidavit. The penalties associated with slippage vary slightly
across the alternatives. The overall impacts of the options that
propose trip termination (proposed action) are negative in comparison
to the no action alternative. Costs associated with mackerel and
longfin squid fishing trips are high, particularly with the current
cost of fuel. Trips terminated prematurely could result in unprofitable
trips, leaving not only the owners with debt, but crewmembers without
income, and negative impacts on fishery-related businesses and
communities.
3. Measures To Address River Herring and Shad Interactions
Amendment 14 would establish catch caps for river herring
(alternative 6b) and shad (alternative 6c) in the mackerel fishery. Two
alternatives, the proposed action and the no action, were considered.
Compared to the no action alternative, the action alternatives have the
possibility of resulting in a closure of the directed mackerel fishery
before the mackerel quota is reached. This could result in revenue
losses as high as $15 million based on 2010 ex-vessel prices, depending
on how early the fishery is closed. While there is no direct linkage
between river herring and shad catch and stock status, a closure that
results from a catch cap in the mackerel fishery could limit the
fisheries mortality on these stocks.
The proposed action also includes support for the existing river
herring bycatch avoidance program involving SFC, MA DMF, and SMAST.
This voluntary program seeks to reduce river herring bycatch with real-
time information on river herring distribution and mackerel fishery
encounters. This aspect of the proposed action has the potential to
mitigate some of the negative impacts of the proposed action by
developing river herring bycatch avoidance measures in cooperation with
the fishing industry.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: August 23, 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 set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.2, the definition of ``Slippage in the Atlantic
mackerel and longfin squid fisheries'' is added in alphabetical order
to read as follows:
Sec. 648.2 Definitions.
* * * * *
Slippage in the Atlantic mackerel and longfin squid fisheries means
catch that is discarded prior to being brought aboard a vessel issued
an Atlantic mackerel or longfin squid permit and/or prior to making the
catch available for sampling and inspection by a NMFS-approved
observer. Slippage includes catch released from a codend or seine prior
to the completion of pumping catch aboard and catch released from a
codend or seine while the codend or seine is in the water. Fish that
cannot be pumped and that remain in the net at the end of pumping
operations are not considered slippage. Discards that occur at sea
after the catch is brought on board and sorted are also not considered
slippage.
* * * * *
0
3. In Sec. 648.7, paragraphs (a)(1)(iv), (b)(3)(ii), and (b)(3)(iii)
are added, and paragraph (f)(2)(i) is revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
(a) * * *
(1) * * *
(iv) Dealer reporting requirements for Atlantic mackerel and
longfin squid. In addition to the requirements under paragraph
(a)(1)(i) of this section, dealers issued an MSB dealer permit must
accurately weigh all fish or use volume-to-weight conversions for all
transactions containing more than 2,500 lb (1.13 mt) of longfin squid
or 20,000 lb (9.07 mt) of mackerel. If dealers do not sort by species,
dealers are required to document, for each report submitted, how the
species composition of the catch is determined.
* * * * *
(b) * * *
(3) * * *
(ii) Atlantic mackerel owners or operators. The owner or operator
of a vessel issued a limited access mackerel permit must report catch
(retained and discarded) of mackerel daily via VMS, unless exempted by
the Regional Administrator. The report must include at least the
following information, and any other information required by the
[[Page 53415]]
Regional Administrator: Fishing Vessel Trip Report serial number; month
and day mackerel was caught; total pounds of mackerel retained and
total pounds of all fish retained. Daily mackerel VMS catch reports
must be submitted in 24-hr intervals for each day and must be submitted
by 0900 hr on the following day. Reports are required even if mackerel
caught that day have not yet been landed. This report does not exempt
the owner or operator from other applicable reporting requirements of
this section.
(iii) Longfin squid/butterfish moratorium permit owners or
operators. The owner or operator of a vessel issued a longfin squid/
butterfish moratorium permit must report catch (retained and discarded)
of longfin squid daily via VMS, unless exempted by the Regional
Administrator. The report must include at least the following
information, and any other information required by the Regional
Administrator: Fishing Vessel Trip Report serial number; month and day
longfin squid was caught; total pounds longfin squid retained and total
pounds of all fish retained. Daily longfin squid VMS catch reports must
be submitted in 24-hr intervals for each day and must be submitted by
0900 hr on the following day. Reports are required even if longfin
squid caught that day have not yet been landed. This report does not
exempt the owner or operator from other applicable reporting
requirements of this section.
* * * * *
(f) * * *
(2) * * *
(i) For any vessel not issued a NE multispecies; Atlantic herring
permit; or any Atlantic mackerel, longfin squid, Illex squid, or
butterfish permit; fishing vessel log reports, required by paragraph
(b)(1)(i) of this section, must be postmarked or received by NMFS
within 15 days after the end of the reporting month. If such a vessel
makes no fishing trip during a particular month, a report stating so
must be submitted, as instructed by the Regional Administrator. For any
vessel issued a NE multispecies permit; Atlantic herring permit; or any
Atlantic mackerel, longfin squid, Illex squid, or butterfish permit;
fishing vessel log reports must be postmarked or received by midnight
of the first Tuesday following the end of the reporting week. If such a
vessel makes no fishing trip during a reporting week, a report stating
so must be submitted and received by NMFS by midnight of the first
Tuesday following the end of the reporting week, as instructed by the
Regional Administrator. For the purposes of this paragraph (f)(2)(i),
the date when fish are offloaded will establish the reporting week or
month the VTR must be submitted to NMFS, as appropriate. Any fishing
activity during a particular reporting week (i.e., starting a trip,
landing, or offloading catch) will constitute fishing during that
reporting week and will eliminate the need to submit a negative fishing
report to NMFS for that reporting week. For example, if a vessel issued
a NE multispecies permit; Atlantic herring permit; or Atlantic
mackerel, longfin squid, Illex squid or butterfish permit; begins a
fishing trip on Wednesday, but returns to port and offloads its catch
on the following Thursday (i.e., after a trip lasting 8 days), the VTR
for the fishing trip would need to be submitted by midnight Tuesday of
the third week, but a negative report (i.e., a ``did not fish'' report)
would not be required for either earlier week.
* * * * *
0
4. In Sec. 648.10, paragraphs (b)(9), (b)(10), (m), and (n) are added
to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(b) * * *
(9) Vessels issued a Tier 1, Tier 2, or Tier 3 limited access
Atlantic mackerel permit; or
(10) Vessels issued a longfin squid/butterfish moratorium permit.
* * * * *
(m) Limited access Atlantic mackerel VMS notification requirements.
(1) A vessel issued a limited access Atlantic mackerel permit intending
to declare into the mackerel fishery must notify NMFS by declaring a
mackerel trip prior to leaving port at the start of each trip in order
to harvest, possess, or land mackerel on that trip.
(2) A vessel issued a limited access Atlantic mackerel permit
intending to land more than 20,000 lb (9.07 mt) of mackerel must notify
NMFS of the time and place of offloading at least 6 hr prior to
crossing the VMS demarcation line on its return trip to port, or, for a
vessel that has not fished seaward of the VMS demarcation line, at
least 6 hr prior to landing. The Regional Administrator may adjust the
prior notification minimum time through publication in the Federal
Register consistent with the Administrative Procedure Act.
(n) Longfin squid/butterfish VMS notification requirements. A
vessel issued a longfin squid/butterfish moratorium permit intending to
declare into the longfin squid fishery must notify NMFS by declaring a
longfin squid trip prior to leaving port at the start of each trip in
order to harvest, possess, or land longfin squid on that trip.
0
5. In Sec. 648.11, paragraphs (h)(1), (h)(3)(vi), (h)(3)(ix),
(h)(4)(i) through (iii), (h)(5)(i), (h)(5)(ii)(B) and (C), (h)(5)(iii),
(h)(5)(vi), (h)(5)(viii)(A), (h)(7), (i)(2), and (i)(3)(ii) are
revised, and paragraph (m) is added to read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(h) * * *
(1) General. An entity seeking to provide observer services to the
Atlantic sea scallop or Atlantic mackerel fishery must apply for and
obtain approval from NMFS following submission of a complete
application to The Observer Program Branch Chief, 25 Bernard St. Jean
Drive, East Falmouth, MA 02536. A list of approved observer service
providers shall be distributed to scallop or Atlantic mackerel vessel
owners and shall be posted on NMFS's Web page, as specified in
paragraph (g)(4) of this section.
* * * * *
(3) * * *
(vi) A description of the applicant's ability to carry out the
responsibilities and duties of a scallop or Atlantic mackerel fishery
observer services provider as set out in paragraph (h)(5) of this
section, and the arrangements to be used.
* * * * *
(ix) The names of its fully equipped, NMFS/NEFOP certified
observers on staff or a list of its training candidates (with resumes)
and a request for a NMFS/NEFOP Sea Scallop or Atlantic mackerel High
Volume Fisheries Certification Observer Training class. The NEFOP
training has a minimum class size of eight individuals, which may be
split among multiple vendors requesting training. Requests for training
classes with fewer than eight individuals will be delayed until further
requests make up the full training class size.
* * * * *
(4) * * *
(i) NMFS shall review and evaluate each application submitted under
paragraphs (h)(2) and (h)(3) of this section. Issuance of approval as
an observer provider shall be based on completeness of the application,
and a determination by NMFS of the applicant's ability to perform the
duties and responsibilities of a sea scallop or Atlantic mackerel
fishery observer service provider, as demonstrated in the
[[Page 53416]]
application information. A decision to approve or deny an application
shall be made by NMFS within 15 days of receipt of the application by
NMFS.
(ii) If NMFS approves the application, the observer service
provider's name will be added to the list of approved observer service
providers found on NMFS' Web site specified in paragraph (g)(4) of this
section, and in any outreach information to the industry. Approved
observer service providers shall be notified in writing and provided
with any information pertinent to its participation in the sea scallop
or Atlantic mackerel fishery observer program.
(iii) An application shall be denied if NMFS determines that the
information provided in the application is not complete or NMFS
concludes that the applicant does not have the ability to perform the
duties and responsibilities of a sea scallop or Atlantic mackerel
fishery observer service provider. NMFS shall notify the applicant in
writing of any deficiencies in the application or information submitted
in support of the application. An applicant who receives a denial of
his or her application may present additional information, in writing,
to rectify the deficiencies specified in the written denial, provided
such information is submitted to NMFS within 30 days of the applicant's
receipt of the denial notification from NMFS. In the absence of
additional information, and after 30 days from an applicant's receipt
of a denial, an observer provider is required to resubmit an
application containing all of the information required under the
application process specified in paragraph (h)(3) of this section to be
re-considered for being added to the list of approved observer service
providers.
* * * * *
(5) * * *
(i) An observer service provider must provide observers certified
by NMFS/NEFOP pursuant to paragraph (i) of this section for deployment
in the sea scallop or Atlantic mackerel fishery when contacted and
contracted by the owner, operator, or vessel manager of a vessel
fishing in the scallop or Atlantic mackerel fishery, unless the
observer service provider does not have an available observer within 24
hr of receiving a request for an observer from a vessel owner,
operator, and/or manager, or refuses to deploy an observer on a
requesting vessel for any of the reasons specified in paragraph
(h)(5)(viii) of this section. An observer's first three deployments and
the resulting data shall be immediately edited and approved after each
trip, by NMFS/NEFOP, prior to any further deployments by that observer.
If data quality is considered acceptable, the observer will be
certified.
* * * * *
(ii) * * *
(B) Lodging, per diem, and any other services necessary for
observers assigned to a scallop or Atlantic mackerel vessel or to
attend a NMFS/NEFOP Sea Scallop or Atlantic mackerel High Volume
Fisheries Certification Observer Training class;
(C) The required observer equipment, in accordance with equipment
requirements listed on NMFS' Web site specified in paragraph (g)(4) of
this section under the Sea Scallop and Atlantic mackerel Observer
Program, prior to any deployment and/or prior to NMFS observer
certification training; and
* * * * *
(iii) Observer deployment logistics. Each approved observer service
provider must assign an available certified observer to a vessel upon
request. Each approved observer service provider must provide for
access by industry 24 hr per day, 7 days per week, to enable an owner,
operator, or manager of a vessel to secure observer coverage when
requested. The telephone system must be monitored a minimum of four
times daily to ensure rapid response to industry requests. Observer
service providers approved under paragraph (h) of this section are
required to report observer deployments to NMFS daily for the purpose
of determining whether the predetermined coverage levels are being
achieved in the scallop or Atlantic mackerel fishery.
(vi) Observer training requirements. The following information must
be submitted to NMFS/NEFOP at least 7 days prior to the beginning of
the proposed training class: A list of observer candidates; observer
candidate resumes; and a statement signed by the candidate, under
penalty of perjury, that discloses the candidate's criminal
convictions, if any. All observer trainees must complete a basic
cardiopulmonary resuscitation/first aid course prior to the end of a
NMFS/NEFOP Sea Scallop or Atlantic mackerel High Volume Fisheries
Observer Training class. NMFS may reject a candidate for training if
the candidate does not meet the minimum qualification requirements as
outlined by NMFS/NEFOP Minimum Eligibility Standards for observers as
described on the NMFS/NEFOP Web site.
* * * * *
(viii) * * *
(A) An observer service provider may refuse to deploy an observer
on a requesting scallop or Atlantic mackerel vessel if the observer
service provider does not have an available observer within 72 hr of
receiving a request for an observer from a scallop vessel or within 48
hr of receiving a request for an observer from an Atlantic mackerel
vessel.
* * * * *
(7) Removal of observer service provider from the list of approved
observer service providers. An observer provider that fails to meet the
requirements, conditions, and responsibilities specified in paragraphs
(h)(5) and (h)(6) of this section shall be notified by NMFS, in
writing, that it is subject to removal from the list of approved
observer service providers. Such notification shall specify the reasons
for the pending removal. An observer service provider that has received
notification that it is subject to removal from the list of approved
observer service providers may submit written information to rebut the
reasons for removal from the list. Such rebuttal must be submitted
within 30 days of notification received by the observer service
provider that the observer service provider is subject to removal and
must be accompanied by written evidence rebutting the basis for
removal. NMFS shall review information rebutting the pending removal
and shall notify the observer service provider within 15 days of
receipt of the rebuttal whether or not the removal is warranted. If no
response to a pending removal is received by NMFS within 30 days of the
notification of removal, the observer service provider shall be
automatically removed from the list of approved observer service
providers. The decision to remove the observer service provider from
the list, either after reviewing a rebuttal, or automatically if no
timely rebuttal is submitted, shall be the final decision of the
Department of Commerce. Removal from the list of approved observer
service providers does not necessarily prevent such observer service
provider from obtaining an approval in the future if a new application
is submitted that demonstrates that the reasons for removal are
remedied. Certified observers under contract with an observer service
provider that has been removed from the list of approved service
providers must complete their assigned duties for any scallop or
Atlantic mackerel trips on which the observers are deployed at the time
the observer service provider is removed from the list of approved
observer
[[Page 53417]]
service providers. An observer service provider removed from the list
of approved observer service providers is responsible for providing
NMFS with the information required in paragraph (h)(5)(vii) of this
section following completion of the trip. NMFS may consider, but is not
limited to, the following in determining if an observer service
provider may remain on the list of approved observer service providers:
* * * * *
(i) * * *
(2) Observer training. In order to be deployed on any Atlantic
mackerel vessel, a candidate observer must have passed a NMFS/NEFOP or
Atlantic mackerel High Volume Fisheries Certification/Observer Training
course. If a candidate fails training, the candidate shall be notified
in writing on or before the last day of training. The notification will
indicate the reasons the candidate failed the training. A candidate
that fails training shall not be able to enroll in a subsequent class.
Observer training shall include an observer training trip, as part of
the observer's training, aboard a scallop or Atlantic mackerel vessel
with a trainer. A certified observer's first deployment and the
resulting data shall be immediately edited, and approved, by NMFS prior
to any further deployments of that observer.
(3) * * *
(ii) Be physically and mentally capable of carrying out the
responsibilities of an observer on board scallop or Atlantic mackerel
vessels, pursuant to standards established by NMFS. Such standards are
available from NMFS/NEFOP Web site specified in paragraph (g)(4) of
this section and shall be provided to each approved observer service
provider;
* * * * *
(m) Atlantic mackerel, squid, and butterfish observer coverage--(1)
Pre-trip notification. (i) A vessel issued a limited access Atlantic
mackerel permit or longfin squid/butterfish moratorium permit, as
specified at Sec. 648.4(a)(5)(i), must, for the purposes of observer
deployment, have a representative provide notice to NMFS of the vessel
name, vessel permit number, contact name for coordination of observer
deployment, telephone number or email address for contact; and the
date, time, port of departure, gear type (for mackerel trips), and
approximate trip duration, at least 48 hr, but no more than 10 days,
prior to beginning any fishing trip, unless it complies with the
possession restrictions in paragraph (m)(1)(iii) of this section.
(ii) A vessel that has a representative provide notification to
NMFS as described in paragraph (a) of this section may only embark on a
mackerel or longfin squid trip without an observer if a vessel
representative has been notified by NMFS that the vessel has received a
waiver of the observer requirement for that trip. NMFS shall notify a
vessel representative whether the vessel must carry an observer, or if
a waiver has been granted, for the specified mackerel or longfin squid
trip, within 24 hr of the vessel representative's notification of the
prospective mackerel or longfin squid trip, as specified in paragraph
(a) of this section. Any request to carry an observer may be waived by
NMFS. A vessel that fishes with an observer waiver confirmation number
that does not match the mackerel or longfin squid trip plan that was
called in to NMFS is prohibited from fishing for, possessing,
harvesting, or landing mackerel or longfin squid except as specified in
paragraph (c) of this section. Confirmation numbers for trip
notification calls are only valid for 48 hr from the intended sail
date.
(iii) Trip limits. (A) A vessel issued a longfin squid and
butterfish moratorium permit, as specified in Sec. 648.4(a)(5)(i),
that does not have a representative provide the trip notification
required in paragraph (a) of this section is prohibited from fishing
for, possessing, harvesting, or landing more than 2,500 lb (1.13 mt) of
longfin squid per trip at any time, and may only land longfin squid
once on any calendar day, which is defined as the 24-hr period
beginning at 0001 hours and ending at 2400 hours.
(B) A vessel issued a limited access mackerel permit, as specified
in Sec. 648.4(a)(5)(i), that does not have a representative provide
the trip notification required in paragraph (a) of this section is
prohibited from fishing for, possessing, harvesting, or landing more
than 20,000 lb (9.07 mt) of mackerel per trip at any time, and may only
land mackerel once on any calendar day, which is defined as the 24-hr
period beginning at 0001 hours and ending at 2400 hours.
(iv) If a vessel issued a longfin squid and butterfish moratorium
permit, as specified in Sec. 648.4(a)(5)(i), intends to possess,
harvest, or land more than 2,500 lb (1.13 mt) of longfin squid per trip
or per calendar day, or a vessel issued a limited access Atlantic
mackerel permit, as specified in Sec. 648.4(a)(5)(i), intends to
possess, harvest, or land more than 20,000 lb (9.07 mt) of mackerel per
trip or per calendar day, and has a representative notify NMFS of an
upcoming trip, is selected by NMFS to carry an observer, and then
cancels that trip, the representative is required to provide notice to
NMFS of the vessel name, vessel permit number, contact name for
coordination of observer deployment, and telephone number or email
address for contact, and the intended date, time, and port of departure
for the cancelled trip prior to the planned departure time. In
addition, if a trip selected for observer coverage is cancelled, then
that vessel is required to carry an observer, provided an observer is
available, on its next trip.
(2) Sampling requirements for limited access Atlantic mackerel and
longfin squid/butterfish moratorium permit holders. In addition to the
requirements in paragraphs (d)(1) through (7) of this section, an owner
or operator of a vessel issued a limited access Atlantic mackerel or
longfin squid/butterfish moratorium permit on which a NMFS-approved
observer is embarked must provide observers:
(i) A safe sampling station adjacent to the fish deck, including: A
safety harness, if footing is compromised and grating systems are high
above the deck; a safe method to obtain samples; and a storage space
for baskets and sampling gear.
(ii) Reasonable assistance to enable observers to carry out their
duties, including but not limited to assistance with: Obtaining and
sorting samples; measuring decks, codends, and holding bins; collecting
bycatch when requested by the observers; and collecting and carrying
baskets of fish when requested by the observers.
(iii) Advance notice when pumping will be starting; when sampling
of the catch may begin; and when pumping is coming to an end.
(3) Measures to address slippage in the Atlantic mackerel and
longfin squid fisheries. (i) No vessel issued a limited access Atlantic
mackerel permit or a longfin squid/butterfish moratorium permit and
carrying a NMFS-approved observer may release fish from the net,
transfer fish to another vessel that is not carrying a NMFS-approved
observer, or otherwise discard fish at sea, unless the fish has first
been brought on board the vessel and made available for sampling and
inspection by the observer, except in the following circumstances:
(A) The vessel operator has determined, and the preponderance of
available evidence indicates that, there is a compelling safety reason;
or
(B) A mechanical failure precludes bringing some or all of the
catch on board the vessel for sampling and inspection; or
[[Page 53418]]
(C) The vessel operator determines that pumping becomes impossible
as a result of spiny dogfish clogging the pump intake. The vessel
operator shall take reasonable measures, such as strapping and
splitting the net, to remove all fish that can be pumped from the net
prior to release.
(ii) If fish are released prior to being brought on board the
vessel, including catch released due to any of the exceptions in
paragraphs (m)(3)(i)(A)-(C) of this section, the vessel operator must
complete and sign a Released Catch Affidavit detailing the vessel name
and permit number; the VTR serial number; where, when, and for what
reason the catch was released; the estimated weight of each species
brought on board (if only part of the tow was released) or released on
that tow. A completed affidavit must be submitted to NMFS within 48 hr
of the end of the trip.
(4) At-sea observer coverage requirements for the Atlantic mackerel
fishery. (i) Vessels issued a limited access Atlantic mackerel permit
may not fish for, take, retain, possess, or land Atlantic mackerel
without carrying a NMFS-approved observer, unless the vessel owner,
operator, and/or manager has been notified that the vessel has received
a waiver of this observer requirement for that trip pursuant to
paragraph (m)(4)(iv) of this section.
(ii) An owner, operator, or manager of a vessel required to carry
an observer under paragraph (m)(4)(i) of this section must arrange for
carrying an observer certified through the Atlantic Mackerel High
Volume Fisheries observer training class operated by the NMFS/NEFOP
from an observer service provider approved by NMFS under paragraph (h)
of this section. The owner, operator, or vessel manager of a vessel
selected to carry an observer must contact the observer service
provider and must provide at least 48-hr notice in advance of the
fishing trip for the provider to arrange for observer deployment for
the specified trip. The observer service provider will notify the
vessel owner, operator, or manager within 24 hr whether they have an
available observer. A list of approved observer service providers shall
be posted on the NMFS/NEFOP Web site at http://www.nefsc.noaa.gov/femad/fsb/.
(iii) An owner, operator, or vessel manager of a vessel that cannot
procure a certified observer within 24 hr of the advance notification
to the provider due to the unavailability of an observer may request a
waiver from NMFS/NEFOP from the requirement for observer coverage for
that trip, but only if the owner, operator, or vessel manager has
contacted all of the available observer service providers to secure
observer coverage and no observer is available.
(iv) NMFS/NEFOP shall issue such a waiver within 12 hr if the
conditions of paragraph (m)(4) of this section are met. A vessel may
not begin the trip without being issued a waiver. All waivers for
observer coverage will be issued to the vessel by VMS so a vessel must
have on board a verification of the waiver.
(v) When selected to carry an observer on a declared mackerel trip,
owners of vessels issued a limited access Atlantic mackerel permit must
pay observer service providers $325 per sea day.
0
6. In Sec. 648.14, paragraphs (g)(2)(v) through (viii) are added to
read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(g) * * *
(2) * * *
(v) Reporting requirements in the limited access Atlantic mackerel
and longfin squid/butterfish moratorium fisheries. (A) Fail to declare
via VMS into the mackerel or longfin squid/butterfish fisheries by
entering the fishery code prior to leaving port at the start of each
trip to harvest, possess, or land Atlantic mackerel or longfin squid,
if a vessel has been issued a Limited Access Atlantic mackerel permit
or longfin squid/butterfish moratorium permit, pursuant to Sec.
648.10.
(B) Fail to notify NMFS Office of Law Enforcement through VMS of
the time and place of offloading at least 6 hr prior to crossing the
VMS demarcation line on their return trip to port, or, for a vessel
that has not fished seaward of the VMS demarcation line, at least of 6
hr prior to landing, if a vessel has been issued a Limited Access
Atlantic mackerel permit, pursuant to Sec. 648.10.
(vi) Release fish from the codend of the net, transfer fish to
another vessel that is not carrying a NMFS-approved observer, or
otherwise discard fish at sea before bringing the fish aboard and
making it available to the observer for sampling, unless subject to one
of the exemptions defined at Sec. 648.11(m)(3) if issued a Limited
Access Atlantic mackerel permit, or a longfin squid/butterfish
moratorium permit.
(vii) Fail to complete, sign, and submit an affidavit if fish are
released pursuant to the requirements at Sec. 648.11(m)(3).
(viii) Fail to immediately return to port after slipping catch
while carrying a NMFS-approved observer after NMFS has determined that
the slippage cap has been reached, pursuant to Sec. 648.24.
* * * * *
0
7. In Sec. 648.22, paragraphs (b)(2)(vi) and (b)(4) are added to read
as follows:
Sec. 648.22 Atlantic mackerel, squid, and butterfish specifications.
* * * * *
(b) * * *
(2) * * *
(vi) River herring and shad catch cap. The Monitoring Committee
shall provide recommendations regarding a cap on the catch of river
herring (alewife and blueback) and shad (American and hickory) in the
Atlantic mackerel fishery based on best available scientific
information, as well as measures (seasonal or regional quotas, closure
thresholds) necessary for implementation.
* * * * *
(4) Additional measures. The Monitoring Committee may also provide
recommendations on the following items, if necessary:
(i) Observer provisions to maximize sampling at Sec. 648.11(m)(2);
(ii) Industry contribution amount for at-sea observer coverage at
Sec. 648.11(m)(2);
(iii) Exceptions for the requirement to pump/haul aboard all fish
from net for inspection by at-sea observers in Sec. 648.11(n)(2);
(iv) Trip termination requirements after slippage for mackerel
vessels in Sec. 648.24(b)(7).
* * * * *
0
8. In Sec. 648.24, paragraph (b)(7) is added to read as follows:
Sec. 648.24 Fishery closures and accountability measures.
* * * * *
(b) * * *
(7) Slippage caps. If NMFS determines that there have been 10
slippage events by vessels issued limited access Atlantic mackerel
permits and carrying NMFS-approved observers, vessels with limited
access mackerel permits that subsequently slip catch while carrying a
NMFS-approved observer must immediately stop fishing and return to port
after each slippage event. NMFS shall implement these restrictions in
accordance with the Administrative Procedure Act.
* * * * *
0
9. In Sec. 648.25, paragraph (a)(1) is revised to read as follows:
Sec. 648.25 Atlantic mackerel, squid and butterfish framework
adjustments to management measures.
(a) * * *
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The
[[Page 53419]]
MAFMC must provide the public with advance notice of the availability
of the recommendation(s), appropriate justification(s) and economic and
biological analyses, and the opportunity to comment on the proposed
adjustment(s) at the first meeting and prior to and at the second MAFMC
meeting. The MAFMC's recommendations on adjustments or additions to
management measures must come from one or more of the following
categories: Adjustments within existing ABC control rule levels;
adjustments to the existing MAFMC risk policy; introduction of new AMs,
including sub-ACTs; minimum fish size; maximum fish size; gear
restrictions; gear requirements or prohibitions; permitting
restrictions, recreational possession limit; recreational seasons;
closed areas; commercial seasons; commercial trip limits; commercial
quota system, including commercial quota allocation procedure and
possible quota set-asides to mitigate bycatch; recreational harvest
limit; annual specification quota setting process; FMP Monitoring
Committee composition and process; description and identification of
EFH (and fishing gear management measures that impact EFH); description
and identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional gear
restrictions; regional season restrictions (including option to split
seasons); restrictions on vessel size (LOA and GRT) or shaft
horsepower; any other management measures currently included in the
FMP, set aside quota for scientific research, regional management;
process for inseason adjustment to the annual specification; mortality
caps for river herring and shad species; time/area management for river
herring and shad species; and provisions for river herring and shad
incidental catch avoidance program, including adjustments to the
mechanism and process for tracking fleet activity, reporting incidental
catch events, compiling data, and notifying the fleet of changes to the
area(s); the definition/duration of `test tows,' if test tows would be
utilized to determine the extent of river herring incidental catch in a
particular area(s); the threshold for river herring incidental catch
that would trigger the need for vessels to be alerted and move out of
the area(s); the distance that vessels would be required to move from
the area(s); and the time that vessels would be required to remain out
of the area(s). Measures contained within this list that require
significant departures from previously contemplated measures or that
are otherwise introducing new concepts may require amendment of the FMP
instead of a framework adjustment.
* * * * *
Sec. 648.27 [Removed]
0
10. Remove Sec. 648.27.
[FR Doc. 2013-21052 Filed 8-28-13; 8:45 am]
BILLING CODE 3510-22-P
